Several US states have responded to
the epidemic of SLAPP cases with legislation aimed at making it more
difficult for developers to sue. Californian Senator, Bill Lockyer,
a supporter of such legislation argued that "Our courts are being used
by wealthy and special interests to prevent citizens from speaking out
on legitimate public controversies." (Bishop 1991) California, New York,
Washington, Nevada, Florida, Texas and several others have all introduced
SLAPP-deterring legislation. In New York, for example, people filing
lawsuits have to show that the person being sued acted in malice and
with "reckless disregard for the truth". In a Californian Supreme Court
case in 1995, the court upheld a ruling that citizens can make comment
and give criticism during formal reviews authorised by law, without
fear of libel suits, no matter what their motivation.
In countries where the constitution
does not guarantee the right of citizens to petition government it is
more difficult for state or provincial governments to enact legislation
to discourage SLAPP suits. However Stephen Keim, Barrister-at-Law, argues
that in Australia there is an implied protection of free speech in the
Commonwealth Constitution that could be used to make it more difficult
for SLAPP writs to operate. He cites a 1992 case (Nationwide News Pty.Ltd
vs. Wills) in which the judge said that the doctrine of representative
government which the Constitution incorporates "presupposes an ability
of represented and representatives to communicate information, needs,
views, explanations and advice. It also presupposes an ability of the
people of the Commonwealth as a whole to communicate, among themselves,
information and opinions about matters relevant to the exercise and
discharge of governmental powers and functions on their behalf." Keim
believes that there is scope for test cases to explore the potential
of this doctrine of representative government as a way of summarily
dismissing suits that offend against the citizens' right to communicate
among themselves on matters of public importance.
Another option is for people who are
targeted for SLAPPs to SLAPP-back (or sue the developers in return).
Grounds for such cases in the US can include abuse of legal process,
malicious prosecution and "interference with the exercise of constitutional
rights of free expression." (Costantini and Nash 1991) Some people in
the US have won large amounts of money in this way. In Australia, the
torts of abuse of process and malicious prosecution are available for
this purposebut such responses depend on the willingness and financial
ability of those involved to use them. It really requires special legislation
to deal with the phenomenon of SLAPPs in a more integrated and comprehensive
Katherine Bishop, 'New Tool of Developers
and Others Quells Private Opposition to Projects', New York Times,
No. 26 April (1991).
Diana Jean Schemo, 'Silencing the Opposition
Gets Harder', New York Times, 2 July 1992.
George W. Pring, Penelope Canan and
Vicky Thomas-McGuirk, 'SLAPPS: A New Crisis and Opportunity for the
Government Attorney-part 1', National Environmental Enforcement Journal,
No. April (1994)
Anon., 'Court Gives New Protections
to Critics of Development', Los Angeles Times, 24 March 1995
Kim Goldberg, 'SLAPPs Surge North: Canadian
Activists Under Attack', The New Catalyst, Vol. 25 (Winter 1992/3)
, pp. 1-3.
Stephen Keim, 'Dealing with SLAPP Suits',
Australian Environmental Law News, Vol. 2, No. June (1994) p.
Edmond Costantini and Mary Paul Nash,
'SLAPP/SLAPPback: The Misuse of Libel Law for Political Purposes and
a Countersuit Response', Journal of Law and Politics, Vol. VII
(1991) , p. 425.
Must Pay Attorneys Fees Under "Anti-SLAPP" Law,
ACLU News, January/February 2000.
Chris Tollefson, Canada
needs Anti-Slapp Legislation,
Taiga News, 21, June 1997.
Robert D. Richards, Keep
free speech free: punch back at SLAPP,
PG News, February 10, 1999.
Eric Kirk, Slapped?
Slapp Back, Civil Liberties,
Gregory Kafoury, Activist
Awarded $200,000 in SLAPP-Back Suit,
Oregon Peace Worker,