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Spring '98 Issue

An Open Letter to Rep. Frank Riggs
Open Heart to Four CHP Officers
Evolution of The CHP
Is Anything Lurking Behind The Boilerplate
Stay Cool, Man
Emmett Cartier v. The CHP
Real Men Never Say The Magic Words
Newsbites and Updates

Slapped? Slapp Back
...by Eric Kirk

During the late 80s, moneyed interests frequently employed a tactic of intimidation against community activists, which became known as "SLAPPs," an acronym for strategic lawsuit against public participation, coined by University of Colorado professors George Pring and Penelope Canaan. The practice was to intimidate activists into silence by filing meritless lawsuits against them and hundreds of "doe" defendants for such torts as slander or intentional interference with business advantage.

The suits were mostly filed in response to community opposition to land developments. Even though speech at public meetings is heavily protected by the First Amendment, the misuse of the courts on the part of these plaintiffs resulted in prohibitive legal costs for the defendants, often silencing entire organizations. The plaintiffs would file and serve the suits, muscle their projects through without opposition, then dismiss the suits.

Some activists fought back, waiting for the dismissals, then hitting the plaintiffs with "SLAPP backs" in the form of malicious prosecution suits. One such judgment resulted in a 13 million dollar judgment. However, such lawsuits took money to fight and often detracted from the causes the activists had been fighting for. Even the large judgments didn't deter many SLAPPers, who figured that risk into their costs. The judgments, as large as they were, were often peanuts compared to the money at stake in the issues to be fought.

After much lobbying from activists, and two Wilson vetoes, Code of Civil Procedure 425.16 was passed. The statute allows SLAPP defendants to move to strike the complaint early if the subject speech involves certain public discourse and the plaintiff cannot establish a probability of success on the merits. The statute has been reasonably effective in eliminating SLAPPs. It had been feared that defendants in cases with merit would abuse the process. That fear has not materialized. It appears that the statute has been successful to some degree.

I will be researching the effectiveness of anti-SLAPP law in more detail for a future article. The statute comes up for review this year to determine its effectiveness as balanced by the detriment to a plaintiff's access to the courts. If anyone knows of any ongoing SLAPPs, please contact me at the CLMP office.

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