The National Pulse
Offended By a Slapp
As Lawsuits against Citizens Expand, Countermeasures Are Rolled Out
Posted Feb 25, 2005 8:46 AM CDT
By Margaret Graham Tebo
When Cincinnati TV reporter Hagit Limor started investigating a chain of dental practices two years ago, she had no idea the story would turn into one of the most contentious battles of her career.
Limor interviewed former patients and employees for a report alleging billing improprieties, unsanitary hygiene practices and other problems at the chain owned by a local dentist.
Such investigative reports often incur the wrath of their subjects, who frequently threaten to sue media outlets that print or broadcast them. Limor had vetted her story with the station’s lawyers and was confident of her reporting and of her sources. She was ready for any lawsuit, or so she thought.
The dentist threw the station a curve. Instead of suing the deep pocket, corporate owned television station WCPO, he sued Limor’s sources for libel.
The defendants, some of whom are low income, had limited resources to hire counsel. They used the dental practice because it accepted Medicaid, according to Limor. “I was shocked when he sued his own patients and employees for exercising their constitutional right to speak out,” says Limor.
That approach gave the case all of the hallmarks of a classic strategic lawsuit against public participation, or SLAPP suit, according to WCPO’s lawyer, Dick Goehler. “All of the allegations in their complaint were about what [the station] broadcast,” says Goehler. “Why sue the defendants with no wherewithal to defend and no money to pay damages?”
Since coming to prominence in the 1980s, mostly by real estate developers trying to silence opposition from environmentalists, SLAPP suits have expanded into other disputes, from labor actions to media and libel suits.
But defendants and other opponents have developed countermeasures, from stronger anti SLAPP statutes to innovative litigation strategies.
In the Limor case, for instance, the station, with the support of corporate parent E.W. Scripps Co., moved to intervene as a defendant, something nearly unheard of in a libel suit, according to Goehler and Cincinnati attorney Richard Creighton, who represents the plaintiff.
Creighton says he strenuously objected to the station’s motion, and to the notion that the case comprises a SLAPP suit.
“We never intended not to sue the station,” Creighton says, “but we wanted to see what the [named] defendants said in discovery first.” He asserts that the station’s reporting was sloppy and Limor’s sources are simply disgruntled former patients and employees. He says an investigation by the Ohio attorney general found his client had not broken any laws.
“It’s the first time in the history of any litigation I’ve ever heard of that somebody was begging to be let into a lawsuit,” says Creighton. “Since when do they get to tell us who to sue?”
But Goehler says his client had a vested interest in the lawsuit. “The station’s reputation was at risk. They wanted to defend their reputation and stand up for their reporting,” says Goehler.
Ultimately, though, the judge agreed with the station, which took over much of the defense. At press time, a defense motion for summary judgment was pending before an Ohio state court.
For his part, Creighton hopes he gets a chance to try the case before a jury. “Juries hate the media. God help you when you sue the almighty media and they make you out like some kind of nut. Well, we’ll see,” he says.
Yet many opponents agree that most SLAPP suits are filed not by large corporations, but by small companies, usually against individuals of meager financial resources, according to University of Denver law professor George W. Pring, an expert on the trend.
Plaintiffs generally charge libel, invasion of privacy, interference with contractual relationships--such as between the corporation and a government body--and similar torts. Although most SLAPP suits fail in court, many accomplish their more important goal, which is silencing critics.
“They’re designed for two things: to punish previous speech and chill future speech, both by [the named] defendant and by others who may be inclined to speak out,” says Pring. Concerned about the chilling effect on public participation, 24 state legislatures have passed anti SLAPP leg islation. The statutes range from New York’s, which protects only speech related to zoning issues, to California’s, which protects individuals’ right to speak in any “public forum” on “matters of public concern.”
Most address an often overlooked provision of the First Amendment, the petition clause, according to Pring. Many provide that speech directed at government officials at any level is protected, meaning that people may speak freely to their legislators and other officials at the state and local levels and may make oral or written comments at public hearings without fear of costly reprisal.
These statutes allow courts to dismiss most frivolous SLAPP suits at an early stage, saving defendants from incurring huge costs. Pring says such petition clause laws are easier to pass in state legislatures than broader laws. While well organized developers and business groups often succeed in lobbying against some SLAPP bills, grassroots efforts have convinced many legislators that SLAPP suits hurt their political interests, says Pring.
“When you call it what it is a deliberate attempt to drive a wedge between legislators and the people they represent most understand that they need to be able to hear from their constituents,” says Pring.
Other state statutes are broader, protecting comments not made directly to government officials. This broader interpretation would protect people such as Limor’s sources in the dentistry story. Ohio does not have an anti SLAPP law, though Goehler says his firm, Cincinnati based Frost Brown Todd, is participating in an effort to draft such a bill. But such statutes may become more common.
Last year, Washington, D.C. based Baker & Hostetler, working with a grant from the national Society of Professional Journalists, drafted a model anti SLAPP statute that the SPJ hopes will entice more states to enact their own statutes. (Several members of the ABA Journal staff are SPJ members, and the writer of this story is president elect of the group’s Chicago chapter.)
The model law aims broadly to protect the right of individuals to speak out on issues of public concern, directly to government officials as well as in other forums, according to Baker & Hostetler media lawyer Malena Barzilai, who helped develop the model bill.
The proposal is designed to protect reporters and their sources, says Barzilai, while still being specific enough to garner support in various state legislatures. For example, while protecting reporters’ sources, the bill nevertheless allows judges the discretion to determine whether a law suit is truly a SLAPP suit or whether it is a standard defamation suit.
Pring applauds the model law, but adds that a stronger bill would also contain a “SLAPP back provision” designed to make plaintiffs think carefully about filing friv olous SLAPP suits. Such a provision would allow prevailing defendants to collect statutory damages from plain tiffs. Currently the bill contains a provision only for attorney fees. “It’s sort of a ‘reverse chill’ that is necessary to curb some of the worst abuses,” says Pring.
The U.S. Supreme Court has also come down on the side of defendants in cases where defamation suits were clearly frivolous and designed to chill critical speech. In one pivotal case, the court found that while the petition clause does not provide absolute immunity from libel, heightened scrutiny was appropriate. McDonald v. Smith, 472 U.S. 479 (1985).
“SLAPPs are a huge iceberg out there. Thousands are filed every year,” says Pring. “Using the courts to silence critics is one of the worst kinds of abuses.”