California Anti-SLAPP Project
Survival Guide for SLAPP Victims
(c) Copyright 1995, California Anti-SLAPP Project and First Amendment Project
This guide was prepared by Mark Goldowitz of the California Anti-SLAPP Project and Elizabeth Pritzker of the First Amendment Project. The authors are grateful to Marta M. Guzman for her contributions.
Introduction
What are SLAPPs?
How Do You Know It's a SLAPP?
How to Protect Yourself from Being a SLAPP Target
Remain Involved
Check Insurance Coverage
Speak the Truth
Seek Legal Advice
How to Deal with SLAPPs
What To Expect Initially
Locate And Hire An Attorney
But Lawyers Cost Money
Insurance: Defense vs. Coverage
Factors Determining the Right Representation for You
The Mechanics of Finding a Good Lawyer
Introduction
The United States and California constitutions grant every person the right to participate in government and civic affairs, speak freely on public issues, and petition government officials for redress of grievances. Yet, individuals and community groups are being sued for exercising these constitutional rights. These suits are known as "SLAPPs," or "Strategic Lawsuits Against Public Participation."
What are SLAPPs?
Generally, a "SLAPP" is a (1) civil complaint or counterclaim; (2) filed against individuals or organizations; (3) arising from their communications to government or speech on an issue of public interest or concern. SLAPPs are often brought by corporations, real estate developers, government officials and others against individuals and community groups who oppose them on issues of public concern. SLAPP filers frequently use lawsuits based on ordinary civil claims such as defamation, conspiracy, malicious prosecution, nuisance, interference with contract and/or economic advantage, as a means of transforming public debate into lawsuits.
Most SLAPPs are ultimately legally unsuccessful. While most SLAPPs lose in court, they "succeed" in the public arena. This is because defending a SLAPP, even when the legal defense is strong, requires a substantial investment of money, time, and resources. The resulting effect is a "chill" on public participation in, and open debate on, important public issues. This "chilling" effect is not limited to the SLAPP target(s): fearful of being the target of future litigation, others refrain from speaking on, or participating in, issues of public concern.
The filing of a SLAPP also impedes resolution of the public matter at issue, by removing the parties from the public decision-making forum, where both the cause and resolution of the dispute can be determined, and placing them before a court, where only the alleged "effects" of the public controversy may be determined. For example, imagine a company asks for a zoning variance to place an incinerator in a residential area. When local residents object to the city council, the company sues them for "interference with contract." The judge hearing the suit cannot decide the real issues -- the location of the incinerator -- but will have to spend considerable judicial resources to decide the side issues of the alleged "damages" or other consequences of the public debate on the real issues.
Every year, thousands of people are sued for participating in government or for speaking out on public issues. SLAPP targets have been sued for engaging in a wide variety of protected speech and protected expression activities, including:
Writing a letter to the editor
Circulating petitions
Calling a public official
Reporting police misconduct
Erecting a sign or displaying a banner on their property
Complaining to school officials about teacher misconduct or unsafe conditions in the school
Speaking at a public meeting
Reporting unlawful activities
Testifying before Congress or state legislatures
Speaking as an officer of an active public interest group
Filing a public interest lawsuit
In California a new law to protect people from SLAPPs, Code of Civil Procedure section 425.16, took effect in 1993. The law allows a judge to decide at the outset of the suit whether the SLAPP has a "probability" of winning. If the judge finds that it does not, the SLAPP must be dismissed, and the SLAPP target wins his or her legal defense costs and attorneys' fees.
The expressive activity which is protected under the new California law is broad. Code of Civil Procedure section 425.16 states that activity which is protected under the law includes:
Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or
Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
(A separate Web page has the text of section 425.16, which can also be accessed from the California Menu.)
Other states have similar protections against SLAPPs. Washington and New York have "anti-SLAPP" statutes: Washington Revised Code sections 4.24.500 - 520; New York Civil Practice Law, Rule 3211(g) and Rule 3212(h), and New York Civil Rights Law sections 70-a and 76-a. The Colorado Supreme Court ruled in 1984 that citizens of that state are protected from SLAPPs ( Protect Our Mountain Environment v. Superior Court, 677 P.2d 1361). For the texts of statutes and case citations from these and other states, see Other States: Statutes and Cases (you can access these materials from our Home Page or any main menu).
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How Do You Know It's A SLAPP?
SLAPPs all arise out of expressive activity which is directed to public concerns. Often, SLAPPs are "camouflaged" as ordinary civil lawsuits based on traditional theories of tort or personal injury law. Among the most often used legal theories are the following:
Defamation. Broadly defined, this is an alleged intentional false communication, which is either published in a written form (libel) or publicly spoken (slander), that injures one's reputation.
Invasion of Privacy. This refers to the unlawful use or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities.
Malicious Prosecution or Abuse of Process. A "malicious prosecution" is a criminal or civil lawsuit which is begun with knowledge that the case lacks merit, and which is brought for a reason (e.g., to harass or annoy) other than to seek a judicial determination of the claim. The use of the legal process to intimidate or to punish the person against whom the suit is brought is generally referred to as "abuse of process."
Conspiracy. A conspiracy is an alleged agreement between two or more persons to commit an illegal, unlawful, or wrongful act.
Interference With Contract or Economic Advantage. This is based on the alleged commission of an act with the intent to interfere with or violate a contract between two people, or hinder a business relationship which exists between those persons.
Intentional Infliction of Emotional Distress. This is based on an alleged commission of some outrageous act with the intent and knowledge that the act will result in severe mental or emotional anguish of another.
Nuisance. This includes everything that endangers, or may endanger, life or health, gives offense to the senses, violates the laws of decency, or obstructs, or may obstruct, the use and enjoyment of property.
This listing is not exhaustive. Neither the context nor the specific legal theory upon which a suit is based is important in determining whether a particular case is a SLAPP. If the activity which triggers the lawsuit is constitutionally protected speech or petition activity, then the suit is a SLAPP.
It is important to recognize that SLAPP filers are not all malicious, any more than SLAPP targets are all well intentioned. The parties' subjective motives - bad faith, intent, frivolousness, intimidation, or even rightness or wrongness on the merits - are irrelevant. The only critical issue is whether protected expressive activity triggered the suit, and is therefore at risk.
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How to Protect Yourself from Being A SLAPP Target
Remain Involved
Dialogue and freedom of expression are at the core of our democratic form of government. One way to retain our rights to free speech and petition is to continue to use them.
A good way to remain involved is to know your legal rights. Become familiar with California's "anti-SLAPP" statute, Code of Civil Procedure section 425.16. This statute does not guarantee that you will never be the target of a SLAPP. However, it presents a mechanism through which a judge can dismiss a SLAPP against you at the very outset of the suit. If the judge rules that the suit must be dismissed, the SLAPP filer is required to pay the cost of your defense, including any attorneys' fees.
Check Insurance Coverage
If you are a homeowner and carry homeowner's insurance, check your policy for personal injury liability coverage. Some policies protect homeowners from personal injury lawsuits based on such things as defamation, malicious prosecution, abuse of process, etc. If you can't tell whether your policy will protect you, consult your insurance company or an attorney. If your present policy does not cover you, ask about a rider which would extend coverage to such matters. Some organizations have insurance which covers these or other SLAPP claims.
Speak the Truth
Whether you are writing your government representative or speaking on an issue of public importance, always make sure your statements are factually correct. If your statements are accurate, there will be no factual disputes later on. You may want to keep copies of all background materials and note sources of facts and figures quoted so that you can show where you obtained the information.
Understand that there are differences between statements of fact and statements of opinion. You may be legitimately sued for false statements of fact, but not for statements of opinion. Be careful. You will not be protected for stating, "In my opinion, Senator Squelch is a liar and a thief," unless, of course, your statement is entirely true. If your words contain an assertion of fact that is capable of being proven true or false -- i.e., that Squelch is or is not a liar and a thief -- you can be sued if it is shown that your statement is false, even though you tried to qualify the statement as "opinion."
Seek Legal Advice
If you are planning to write to a government official or speak out on a public issue, and you are unsure if your statements could subject you to a lawsuit, contact a lawyer who can assist you. One of the organizations listed in Where To Find Help may help you in finding a knowledgeable attorney to consult.
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How to Deal with SLAPPs
If you find yourself the target of a SLAPP, don't panic! Many other people have been in your position, and there are individuals and organizations out there that can help you.
What To Expect Initially
If you are the target of a SLAPP, you may receive a demand letter from the lawyer representing the SLAPP filer which lists a series of "options" you must meet to resolve the matter before a lawsuit is actually filed. Often, the letter will demand a sum of money, an apology (generally public), your agreement to refrain from speaking out or participating in the future, your agreement not to bring a lawsuit against the SLAPP filer, or a combination of these and other things.
The more likely scenario is that you will learn of the SLAPP when you are personally presented with a "summons" and "complaint" at home or work. The complaint will list the specific "wrongs" you are alleged to have committed. Look for the legal jargon: words like "libel," "slander," "interference with contract," etc., which are briefly defined above.
The summons is a notice, telling you that you have been sued; it will give a deadline (usually 30 days) within which you must file a formal response to the complaint with the court.
Locate And Hire An Attorney
It is always best to find an attorney to represent you. Do not try to handle the case yourself! Being sued, especially with a SLAPP, is very serious business. An attorney may be able to effectively end the litigation at the very beginning of the lawsuit, minimizing the emotional and psychological stress that can result from being sued, and saving you tremendous amounts of time and money.
Act early. Do not wait until just before the formal response to the complaint is due to start looking for an attorney. Lawyers are busy, too, and need some time to assess your case. Waiting until the last minute to find a lawyer to help you will only add stress to an already stressful situation.
If you find yourself pressed for time, keep in mind that the attorney who files your formal response to the complaint does not have to be the attorney who will eventually represent you in court. At the very least, find a lawyer who can help you draft and file a response to the complaint on time. If you miss this deadline, the court can enter judgment against you, without first considering all the arguments in your defense. If a judgment is entered against you, you may have to pay the SLAPP filer for any damages that are being claimed as a result of your activities! Deadlines contain the word "dead[ly]" and should be treated as such. They cannot be missed.
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But Lawyers Cost Money
It should come as no shock that most lawyers expect to get paid for their work. Yet, even without increasing fee rates demanded by attorneys, defending a case is extremely expensive. Costs associated with a typical case include court costs, photocopying services, postage, delivery services, telephone, expert witness fees, deposition fees and other costs. You must consider how these costs will be paid.
The attorney you select should be in a good position to tell you how much he or she estimates defending you will cost. Lawyers are often flexible on how they expect to paid. Do not be afraid to discuss alternative payment terms with the lawyer and with an eye to your pocketbook. Some lawyers will agree to take your case on a contingency basis. This means that the lawyer will be paid only if you either win the case and the court rules that the SLAPP filer must pay your attorneys' fees or you successfully bring a lawsuit against the SLAPP filer for damages suffered by you as a result of being the target of a SLAPP. (This is generally referred to as a "SLAPPback", discussed below.)
Some attorneys will agree to defend you on a pro bono (free) or low cost (reduced hourly attorney fee rate) basis. One way to find pro bono or low cost legal services is to check with one of the organizations listed in Where To Find Help. Be forewarned, however, that the law requires that you remain responsible for paying all legal costs associated with the case, such as filing fees and court costs. This is true even if the attorney agrees to work for you for free.
If you are sued as a result of expressive activity undertaken on behalf of a group, check on whether the group has insurance which may cover you, maintains a legal defense fund, or is willing to help defray legal costs by doing fundraising on your behalf.
Now the good news. Under the new California anti-SLAPP law, you will be entitled to recover legal fees, court costs, and other expenses if the judge rules that the SLAPP filer cannot show a probability of winning the suit. Thus, even if you can't afford to pay hourly attorney fee rates, an attorney will often be encouraged to defend you on a pro bono, contingency, or low cost basis if he or she understands that attorney fees will be paid by the SLAPP filer if you win.
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Insurance: Defense versus Coverage
In many cases, your homeowner's liability insurance policy will require the insurance carrier to defend you if you are sued. Consult your insurance company or an attorney to see if you are covered. If so, the company will provide or pay for a lawyer to help you. This will mean you will not be required to pay legal fees for legal representation. Be aware, however, of two consequences of such an arrangement. First, the company attorney will be inclined to reflect the carrier's position, which may not always be in line with what you want. Second, there is a difference between the insurance company providing you with a defense and ultimately paying any judgment entered against you. The company may defend you, but reserve its rights not to pay the judgment if it later determines the judgment is not covered by your policy.
Factors Determining the Right Representation for You
Finding the right attorney will take a little bit of work and energy on your part. A number of factors should be considered.
Compatible. You must ultimately decide if you will be satisfied with the prospective attorney. It is very important that you be able to work with the attorney comfortably. You may well be spending more time with this person than you know.
Sympathetic. It is helpful to find a lawyer who shares or understands your politics, or at least someone who will listen and understand why you said or did what you did. Conflicts over differing philosophies, gender bias, or political beliefs are not only time consuming, they may affect the kind of representation you will receive.
Experienced. Find someone who has experience defending SLAPP victims or who is familiar with the legal and factual issues of your case. This can be critical to your case both in terms of costs and time. Ask the lawyer if he or she has worked on these kinds of cases before, and what kind of experience that lawyer has generally. You may also ask if the lawyer would mind if you speak to other clients and/or SLAPP victims the attorney has represented in the past.
Willing to Share the Load. It is important to remain involved in the decision-making process throughout all the stages of the lawsuit. Do not be afraid to ask about the potential ramifications of all legal and strategic decisions before authorizing your attorney to take action on your behalf.
Media Savvy. It may also be helpful if the attorney is used to dealing with the press. Often these kinds of cases generate a lot of media interest. The right kind of media visibility will help your case. The wrong public image, however, could be very harmful.
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The Mechanics of Finding a Good Lawyer
Take the time to gather all relevant information you can and present it to prospective attorneys. Ideally, the attorney should have a complete picture of the relevant facts of the case and any legal matters pertaining to the case that you may be aware of.
Case package. Create a neat package of information that you can present to potential attorneys; it may include:
A brief cover letter which is respectful of the attorney's time, focuses on the key issues in your case, and states, specifically, what you would like the lawyer to do for you.
A copy of the demand letter, complaint, or any other official document you received from the SLAPP filer or his or her lawyer.
The names of any attorneys who may have advised or represented or advised you in this action, and how to contact them.
The names of the attorney or attorneys representing the SLAPP filer, and how to contact them.
The names of important witnesses, if any.
Key newspaper articles or other background information about your case and/or your opponents.
Attorney interview. Explain your story as succinctly as possible. You may even wish to practice before the first interview. Have you own list of questions ready. The list should include questions about the case, as well as questions about the lawyer's experience and interest in similar suits. Become familiar with California's anti-SLAPP statute and ask the attorney if it applies to your case. You may want to learn more about SLAPPs in general. Your local library is a good source for current literature on the topic. You can also learn more about SLAPPS by contacting one of the organizations listed in Where to Find Help, and/or consulting the material listed in the Bibliography.
Note. From here you may go directly to a general description of the legal procedure in defending a SLAPP in California, or choose one of the options below.
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