Free Speech SLAPPed

An out-of-state friend marveled as he read about Tulsa City Councilor Eric Gomez's threat to sue one of his own District 4 constituents for libel.

My friend wrote, "What is wrong with the powerful in your city? Or do you simply lack someone powerful enough to rope in these folks?"

He went on to compare the attitude of Tulsa's leaders to those of Detroit and Gary, Ind., two Midwestern cities falling into ruin because of decades of failed leadership.

In a republic with democratically-elected officials and the freedom to criticize their actions, the answer to my friend's second question ought to be that the citizens are powerful enough to "rope in" bad leadership.

But the very ropes the Founding Fathers gave us in the First Amendment -- freedom of speech, freedom of the press, and the right to petition the government -- are being unraveled by lawsuits and threats of lawsuits.

Because of the internet, this ought to be a golden age for political expression, public dialogue and citizen journalism. Government information online makes it easier than ever to research issues of public policy. Internet tools like e-mail and free blog publishing have eliminated the financial and technological barriers to making your voice heard.

Never before have citizens of ordinary means been better positioned to match the wealthy and powerful in tracking and influencing public policy. Never has it been easier to hold civic leaders to account.

But the wealthy and powerful have found a way to regain the advantage. By deploying a strategic lawsuit against public participation (SLAPP), someone can use the legal process to harass an annoying critic into silence and at the same time deter other citizens from speaking out. What should be a matter of justice becomes a war of attrition, with the advantage to the side with the deepest pockets.

The SLAPP claim itself may have no merit, but even if the lawsuit is ultimately dismissed or the SLAPP target prevails in court, the process can consume hundreds of thousands of dollars in legal costs for the citizen activist and thousands of hours in time spent complying with intrusive discovery requests. Someone with a day job and a small bank account won't be able to sustain that for very long.

Only Eric Gomez knows if his threat against neighborhood leader Julie Hall was motivated by a genuine desire to seek the Court's assistance in righting a wrong or was instead intended to intimidate a pesky critic into silence.

Hall certainly felt that the purpose was to shut her up. Her attorney, Steven Novick, wrote in his Jan. 6 response to Gomez's attorney that it was Hall's belief that the threatened lawsuit "would clearly be designed to impose the emotional and financial burdens of litigation upon her for the purpose of silencing her lawful criticism of Councilor Gomez."

In the May-June 2005 issue of the Journal of the Missouri Bar, St. Louis attorney Stephen Kling wrote, "The primary purpose of a SLAPP lawsuit is not to resolve the allegation in the petition, but to punish or retaliate against citizens who have spoken out against the plaintiffs in the political arena and to intimidate those who would otherwise speak in the future."

Kling notes that the impact of a SLAPP suit extends far beyond the explicit defendant in the case. "A SLAPP lawsuit is often intended to make the victim an example and a carrier who spreads the virus of fear throughout the community. The longer a SLAPP lawsuit continues, the more a plaintiff satisfies the goal of burdening the defendant and chilling constitutionally protected free speech and petitioning rights."

Kling writes that the discovery process is a key part of the strategy, imposing "costly and time-consuming depositions and interrogatories upon a defendant." The aim of these pre-trial maneuvers, he says, is "to wear [SLAPP victims] down and bleed them dry."

The reality of SLAPPs has led to organizations like the Media Bloggers Association and Mediabistro offering liability insurance for bloggers and freelancers who report and comment on the news.

The application form for bloggers liability insurance asks some telling questions about risk factors. If you're blogging about local politics and zoning and planning issues, you're the actuarial equivalent of a chain-smoking skydiver. You pose a threat to those with a financial stake in the status quo. You can get coverage, but it may cost you more than you can justify allocating from your household budget.

Judge J. Nicholas Colabella, in a 1992 New York Superior Court case, wrote of SLAPP suits: "Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined."

Recognizing the chilling effect that SLAPP suits have on freedom of speech, freedom of the press and the freedom to petition the government, states have begun to enact anti-SLAPP laws to weed out suits intended to harass from suits filed for the purpose of righting a wrong.

The key feature of an effective anti-SLAPP law is the ability for the court to kill a suit early in the process. If the claim has no likelihood of success, the court should be able to throw it out before the target has to endure burdensome interrogatories and depositions. As a deterrent to future SLAPP suits, a good anti-SLAPP law would also force the SLAPPer to pay the target's legal fees.

Oklahoma has a very minimal anti-SLAPP statute. 12 O. S. 1443.1 only covers libel, not other causes of action that are sometimes used in SLAPPs, such as business interference, abuse of process and conspiracy torts. And while Oklahoma's existing law helps a defendant once the case gets to court, it provides no early relief to a SLAPP target, no way to quickly dispose of a meritless claim.

You can find a detailed account of the inadequacies of Oklahoma's SLAPP laws, and a comparison to laws in other states, in a 29-page article by Laura Long in the Summer 2007 issue of the Oklahoma Law Review.

Long explains how to build an anti-SLAPP law that protects the exercise of one's First Amendment rights: "To cure a SLAPP suit with as little impact on petitioning activity as possible, an effective statute should include a special motion to dismiss, an articulatable burden of proof for the filer that may include a requirement for more specificity in the pleading, suspended discovery and an award of costs to the successfully moving party.

"To prevent future SLAPP suits, the statute should include a specific authorization for serious penalties and accompanying SLAPP-back suits. Together, these elements provide a quick and cost-effective escape route for targets of SLAPP suits and may even discourage filers from attacking the target's First Amendment Right to Petition in the future."

All of these elements were addressed in Senate Bill 742, filed this session by Oklahoma State Sen. Tom Adelson, a Democrat who represents much of midtown Tulsa. SB 742 would allow a target to make a "special motion to strike." Discovery proceedings would be stayed from the time the motion is made until the court rules on it.

In response to a special motion to strike, the plaintiff would have to show a probability of prevailing if the case goes forward. There's a "loser pays" provision to deter frivolous motions on both sides; the winning side on a special motion to strike would be entitled to recover his legal costs.

SB 742 was sent to the Senate Judiciary Committee and never got a hearing. I'm told that Adelson was unable to find a Republican co-sponsor. He's hopeful that the bill will make more progress in the 2010 legislative session.

Oklahoma needs a vigorous public conversation about our problems and their solutions. Elected officials, civic leaders and prominent institutions need to be held to account when their leadership is misguided or self-serving.

But if citizens feel that they are putting their family finances in jeopardy by speaking out, we won't have that conversation. Citizens will choose to remain silent, so as not to become a target. Worse yet, intelligent and energetic people, the very sort of people Oklahoma needs in order to progress, will choose to leave the state, to go where free speech is protected and new ideas are welcomed.

Republicans know how the cost of litigation can stifle innovation in the business community. They are rightly concerned about a chilling effect on small business formation and expansion in our state. That same chilling effect exists in the realm of public policy.

Conservatives are worried about the impact of a new "fairness doctrine" on our ability to counter the leftward slant of the mainstream media. SLAPP suits are every bit as threatening to any alternative medium here in Oklahoma.

On the other side of the aisle, Democrats should see the importance of protecting the little guy's ability to exercise First Amendment rights over the objections of someone with money and power.

The provisions of SB 742 properly fall under the realm of lawsuit reform, and it would make sense for anti-SLAPP provisions to be incorporated into the final version of the bill now working its way through the legislature.

Protections for Oklahomans exercising their rights to speak, to publish and to petition the government ought to enjoy support from across the political spectrum.

As Julie Hall recently wrote, "No Tulsan should live in fear that the mere expression of an opinion and participation in public forums or processes is grounds for legal action. We will never agree on every issue, but free speech and the First Amendment belong to us all."