Justice
or
Law, …what's the difference?
Well, attempting to destroy someone's life generally and unfortunately, does not always carry punitive damages. Consider that 'Big Rich Mafia Guy' can hire a hitman to 'off' somebody he doesn't like. For the hitman, it's 'just business'—nothing personal. Both the hitman and the Mafia boss face severe punishment because really, planning to, and successfully 'offing' someone is considered a bad thing. A really bad thing, even. The mere 'attempt'—the planning and subsequent attempt, successful or otherwise, is quite evil.
A recognized component of anti-SLAPP law is showing that the Plaintiff is unlikely to prevail. That's fair. If the Plaintiff really has a reasonable case, then SLAPP shouldn't apply. Conversely, take the case where the Plaintiff really doesn't have the liklihood of prevailing. We then ask ourselves, "Why did they bring it in the first place?" What motive would one have to bring a case that was poor from the starting gate? If indeed, you're in the wrong and simply pissed off, yet your opponent is right, what fool would bring a case? One with a lot of money, of course. Because really, even if you're wrong, if you have the 'money cushion', you can easily pay an attorney to make all the legal manoeuvres to draw blood from the other side—and do so comfortably. SLAPP is then borne, partially of these circumstances.
So let us say that we have decided that SLAPP cases are "a bad thing". That is, an entity like 'Big Company B' should not be allowed to prey upon individuals in such a manner. After all, the litigation costs—the morass of courts, attorneys, motions, bifurcations, and even compounding all the filing and docket fees—are of sufficient financial burden to many common individuals so as to 'break' them—to drive them into financially dire straits. That is, an individual can easily be ruined by 'The Process', whilst successfully defending himself against a meritless case. What does SLAPP recover? All the expenditures—and none of the justice.
We had held, at one time, that 'free speech' or 'protected speech' was rather important. When our forefathers got together and drafted that 'Constitution thingie', free speech wasn't the Sixth Amendment. Not the Ninth Amendment. It was the first thing thing they thought of when writing the principles for which this country stands. It's up at the top, in big letters. Should we not expect then, that attempts to chill free speech are not merely a 'kinda' bad thing—but indeed, a 'really' bad thing?
Yet, what really happens under SLAPP? Well, my attorney gets paid. He gets paid either way, SLAPP or not. And what happens to 'Big Company B'? Well, they pay a little more for their poor case, which was not likely to prevail anyway. Their 'money cushion' is now a bit lighter. Is that justice? Well, it certainly is 'law', but not necessarily 'justice'. They had a 'money cushion' anyway, from which to bring a poor case, just to bleed the Plaintiff. Indeed, they really "got away with it"—they simply had to pay a bit more. They get away without a punitive damage. They receive no punishment for blistering that First Amendment—they simply pay two attorneys instead of one, for the 'privilege' of circumventing that amendment. Certainly, all the lawyers are happy, at least.
The actual deed, however—the deed of attempting to drain the individual into financially dire straits because they spoke their mind—remains unaddressed. Much like the mafia boss and the mafia hitman who "get away with it", this attempt to destory a person (the planning and attempt itself), is not punished. There are no punitive damages under SLAPP legislation. And yet we thought free and protected speech was an important foundation—isn't that why we told George III where he could "stick it", in the opening paragraphs?
I'm not complaining about anti-SLAPP statutes. Not much, at least. Whereas SI poster 'marcos' says "…in many countries, you would be shot for expressing your mind…", I suppose I should be greatful that I don't have some additional navel holes. Still, it is an interesting contrast that a mafia boss can hire a hit man to attempt destroying someone, and get into a lot of trouble—and that 'Big Company B' can likewise hire a lawyer in attempting to destroy someone, yet the imposed sanctions are merely paying two attorneys, instead of one.
What about that 'hitman', anyway? Doesn't it seem that an attorney should bear some responsibility if he's going to write up a complaint, submit it to the Court, and contrive the legal wranglings in a case unlikely to prevail anyway? Is there not some 'ethical rule' which says that he should have just 'bagged' it, since the merits of said case were indeed dubious (that is, the point of 'liklihood of success', under SLAPP law)? Well, foregoing SLAPP, you have FRCP 11 (and you can't get successive penalties for both). As with SLAPP, the hapless defendant will only be recompensed for expenditures—that is, it only recovers 'all the law', and 'none of the justice'. Yet here stands the guy who's trying to destroy my life because he got paid a few bucks to do it. 'Justice' or 'Law'—is there a difference? I think so.
-MrB
08-07-1999 |
