Action Against Participants
Citation: Sharon Beder, 'Action Against Participants: The US Experience', Defending the Defenders: Protest, the Environment and the Law, National Environmental Defenders Office Network, Sydney, 1998, pp. 1-8.
This is a final version submitted for publication.
Between 1965 and 1970 environmental groups proliferated and environmental protection, especially pollution control, rose dramatically as a public priority in many countries. Governments worldwide responded with new forms of comprehensive environmental legislation such as Clean Air Acts and Clean Water Acts and the establishment of environmental regulatory agencies. Environmental planning legislation soon followed.
These new environmental laws enabled the public to have more input into environmental planning and siting decisions and required government agencies and developers to consider the environmental impacts of development activities. The closed policy-making arrangements between industry and government were 'forced open' and governments had to listen to a greater range of interests and to justify their decisions on rational grounds. They had to be seen to be listenting to public opinion and responding to it.
Businesses found that their past ways of dealing with government no longer sufficed. The scope of political conflict widened. "For the first time since the 1930s, business found its political influence seriously challenged by a new set of interest groups." According to David Vogel, in his book Fluctuating Fortunes: The Political Power of Business in America, "it took business about seven years to rediscover how to win in Washington." Once they realised how the political scene had changed corporations began to adopt the strategies that public-interest activists had used so effectively against them&emdash;grassroots organising and coalition building, telephone and letter-writing campaigns, using the media, research reports and testifying at hearings, "to maximize political influence." To these strategies corporations added huge financial resources and professional advice. "A new breed of public affairs professionals began emerging" who could service corporations in their new activism.
For business, the turbulence of change was a nightmare of new regulations and increasingly vocal interest groups that needed pandering to. The rules of the game had changed, and new ways had to be found to at once get what one needed from government, shout down the opposition, and harness the power of interest groups for one's own benefit through persuasion.
In response to government regulations, brought on by the activities of environmentalists and public interest groups, businesses began to cooperate in a way that was unprecedented, building coalitions and alliances and putting aside competitive rivalries. In Australia corporations "substantially increased their level of resources and commitment to monitoring and influencing the political environment"; ensured their senior executives were effective political operatives in their dealings with politicians and bureaucrats; hired consulting firms to help with government submissions; and established government relations units within their companies with direct access to the chief executive officer. Also, as in the US, "concerted efforts were made to improve and centralise business representation at the national level" so as to mobilise and increase their power.
Corporations managed to achieve a virtual moratorium on new environmental legislation in many countries throughout the late 1970s and most of the 1980s. However, towards the end of the 1980s public concern about the environment rose again, reinforced by scientific discoveries regarding phenomena such as ozone depletion and weather patterns that seemed to indicate that global warming had already begun.
A Saulwick Poll in 1990 also found that 67 per cent of people thought Australia should "concentrate on protecting the environment even if it means some reduction in economic growth." Similarly a 1991 Gallup poll also found that 75% said environmental protection should be given priority, "even at the risk of curbing economic growth." In this poll 80% of those surveyed called themselves environmentalists.
This heightening of public anxiety in response to scientific confirmation of environmental deterioration induced a new wave of corporate political activity. This time the corporate backlash was able to utilise the techniques and organisations that had been established in the 1970s for the same purpose. Public relations firms in particular are regularly used to 'shape' public opinion and run 'consultation' processes aimed at gaining acceptance for projects and developments. Public relations experts and departments do their best to influence media coverage and ensure that their employers views are reported whilst opponents are portrayed as ferals, 'crowds for hire', or NIMBY's &emdash;people selfishly concerned about their own back yard.
In a two pronged approach the voices of the developers are amplified whilst the voices of opponents are subdued. Public relations firms cultivate the trust of the community and reassure them of the benefits of the developments, whilst those who oppose undesirable developments and unfettered resource extraction are targetted by the developers. They are not only subject to the abuse of industry funded anti-environmental groups but they are also vulnerable to a new wave of law suits filed against them for exercising their democratic rights to circulate petitions, write to public officials, attend public meetings, organise boycotts and engage in peaceful demonstrations.
Every year thousands of people are sued in the USA for speaking out against governments and corporations. Multi-million dollar law suits are being filed against individual citizens and groups for political activities that are supposed to be protected by the First Amendment to the US Constitution.
Betty Jane Blake opposed a developer, Terra Homes Inc, that wanted to cut down some trees in her street. She put up signs saying "This neighbourhood will not be Terraized" and tied red ribbons around the tree trunks. She was hit with a $6.6 million dollar law suit for defamation, interference in business and trespassing. The company also sued all the residents who attended a meeting at the Town Hall to discuss the development. The company eventually dropped the suit but not before residents had one by one signed affidavits swearing that they had not taken part in putting up signs and ribbons and dropped out of the campaign from fear.
In Missouri a high school teacher, in a letter to the editor, urged her local community to attend hearings being held by the state environmental agency on a medical waste incinerator and to testify against approval being granted. The Canadian incinerator company suited her for $500,000 for libel.
These cases are part of a growing trend which began in the 1970s and was a response to the growing numbers of citizens who were speaking up about environmental and other social issues. The law suits have been labelled "Strategic Lawsuits Against Public Participation" or SLAPPs by University of Denver academics Penelope Canan and George Pring, who have been studying such suits for more than a decade with the help of funding from the US National Science Foundation. They began their research after they noticed an increasing number of environmentalists were being named as defendants in large civil damage cases.
Canan and Pring define a SLAPP as being a civil court action which alleges that injury has been caused by the efforts of nongovernment individuals or organisations to influence government action on an issue of public interest or concern. They found that "SLAPPs are filed by one side of a public, political dispute to punish or prevent opposing points of view." Of course people using SLAPPs in this way cannot directly sue people for exercising their democratic right to participate in the political process so they have to find technical legal grounds on which to bring their cases. Such grounds include defamation, conspiracy, nuisance, invasion of privacy or interference with business/economic expectancy.
This trend is now spreading to other countries. For example in Canada the transnationals MacMillan Bloedel Ltd and Fletcher Challenge have between them sued over 100 individuals and four community and environmental organisations who opposed the logging of an ancient rainforest on Vancouver Island. In Britain, in a highly publicised case McDonald's, one of the largest companies in the world 'successfully' sued two unemployed activists, for distributing pamphlets critical of McDonald's.
SLAPPs are far less frequent in countries outside the US. Chris Tollefson suggests this is because SLAPPs are a response to the drive for and exercise of citizen participation rights that may not be so available in other countries. In the US "the enactment of statutory regimes contemplating or requiring public input" and the liberalisation of the rules of who can take court action on environmental matters means that citizens have "unprecedented access to government and the courts with respect to decisions affecting the environment." Tollefson sees SLAPPs as a tactical response by pro-development business interests to the increasingly effective use that environmental and citizens groups make of these opportunities.
Nevertheless, as environmentalists and local residents win more battles in countries like Australia, the SLAPP cases outside of the US are increasing and taking their toll, especially because legal assistance is not readily available in cases such as libel.
Such cases seldom win in the courts. The charges often seem extremely flimsy and the damage claims outrageously large. Most are dismissed by the courts and 77% of those that are heard by the courts are won by the people being sued. Less that ten percent of such cases in the USA result in a court victory for the filer of the action. Edmond Costantini and Mary Paul Nash observe in their article on the misuse of libel law for political purposes in the Journal of Law & Politics: "One would be hard-pressed to find another area of the law in which so overwhelming a proportion of defendants brought into court are eventually vindicated." However companies and organisations taking this legal action are not doing so in order to win compensation. Rather their aim is to harass, intimidate and distract their opponents. They 'win' when their victims "are no longer able to find the financial, emotional, or mental wherewithal to sustain their defense." They win the political battle, even when they lose the court case, if their victims and those associated with them, stop speaking out against them.
One trial judge pointed out:
The conceptual thread that binds [SLAPPs] is that they are suits without substantial merit that are brought by private interests to "stop citizens from exercising their political rights or to punish them for having done so"...The longer the litigation can be stretched out, the more litigation that can be churned, the greater the expense that is inflicted and the closer the SLAPP filer moves to success. The purpose of such gamesmanship ranges from simple retribution for past activism to discouraging future activism.
The cost to a developer is part of the costs of doing business but the cost of a court case could well bankrupt an individual or an environmental group. In this way the legal system serves best, those who have large financial resources at their disposal, particularly corporations. In 1983 the US Supreme Court stated in one such SLAPP case that a lawsuit may be used "as a powerful instrument of coercion or retaliation" and no matter how flimsy the case the defendant "will most likely have to retain counsel and incur substantial legal expenses to defend against it..."
Such a case takes an average of three years and even if the person being sued wins it can cost tens of thousands of dollars in legal fees. Personal and emotional stress, disillusionment, diversion of time and energy, and even divisions within families, communities and groups can also result. For example George Campbell organised his neighbours to protest against the expansion of an airport near their homes in Worcester, Massachusetts. After he was threatened with a lawsuit from the city council for $1.3 million he thought he was going to lose everything and ended up in hospital as a result of the stress. The council dropped the suit a few weeks later.
THE CHILL EFFECT
Not only does a SLAPP deter those involved from participating in political debate freely afterwards, but it also deters other citizens from speaking freely and confidently about local public issues. Dixie Sefchek, says that when she and three other leaders of Supporters To Oppose Pollution (STOP) were SLAPPed it was "like a death threat to your organisation. People, organizations, and churches stopped giving money. Individuals resigned their memberships." The suit was later dropped and the landfill they opposed ordered to be closed a few years later because of contamination of the groundwater.
Research by Canan and Pring in fact shows that people who know about SLAPPs are more cautious about speaking out publicly than those who have never heard of them. This intimidation of public discussion is referred to as chilling. Judges in one US court decried a SLAPP for this very reason:
[W]e shudder to think of the chill... were we to allow this lawsuit to proceed. The cost to society in terms of the threat to our liberty and freedom is beyond calculation... To prohibit robust debate on these questions would deprive society of the benefit of its collective thinking and... destroy the free exchange of ideas which is the adhesive of our democracy.
SLAPPs often do not go to trial because the objective, to scare off potential opponents, can be achieved merely by the threat of the court case. Kim Goldberg points out that "company lawyers will usually go to great pains to warn activists of impending defamation suits. After all, why waste time and money filing legal papers to initiate a lawsuit if the mere threat of a suit will silence your critics?"
Another effect of the SLAPP is to distract the key antagonists from the main controversy and use up their money, time and energy in the courtroom, where the issues are not discussed. Activists use the political arena to expand the debate, enrol other citizens on their side and spread the conflict. The firms and developers that utilise SLAPPs are trying to subvert and circumvent that political process "by enlisting judicial power against their opponents." SLAPPs "are an attempt to 'privatise' public debate&emdash;a unilateral effort by one side to transform a public, political dispute into a private, legal adjudication, shifting both forum and issues to the disadvantage of the other side."
SLAPPs can also shift the balance of power giving the firm filing the SLAPP suit the upper hand when they are losing in the political arena. Action tends to be taken against citizens who are successfully opposing them because those taking the action are afraid that they will not win in the public, political forum. In the courts, the wealth of the disputants, and their ability to hire the best lawyers can influence the outcome. "Whereas in the political realm the filer is typically on the defensive, in the legal realm the filer can go on the offensive, putting the target's actions under scrutiny." Prolonged litigation can even achieve community compliance through delay and loss of sustained interest in the broader public.
In the US SLAPPs are used in controversies over development and zoning issues (25%), environmental protection and animal rights (20%), when public officials are criticised (20%), as well as various neighbourhood problems, human and civil rights cases and consumer protection issues. Canan and Pring found that those filing the suits assumed that economic rights were superior to public interests. "The idea is that because a business has money at stake, business should receive priority over civic, communal opposition. The introduction of 'food disparagement' laws in several states opens up new avenues for SLAPPs to operate. These laws, which prohibit people from publicly criticising corporate food products, were promoted by agriculture, chemical and biotechnology industry lobbyists.
The targets of these law suits are generally not radical environmentalists nor professional activists. They are ordinary middle-class people who are concerned about their local environment and have no history of political activity. The concentration on middle class citizens is no accident. They often have most to lose and don't have the support and ideological commitment that a professional environmentalist in a large environmental organisation usually has. However Al Meyerhoff, a senior attorney with the US Natural Resources Defense Council claimed in 1992 that "What started as a tactic against small targets is now expanding to national groups....It is part and parcel of an overall counterattack by the polluter industry against the environmental community." Law suits are clearly aimed at intimidating middle-class citizens who have assets and mortgages that could be seized and are less threatening to young activists without assets who have little to lose. Kelpie Wilson, who was one of six activists SLAPPed in Oregon by a logging company, Huffman & Wright Logging, argues that:
Non-violent civil disobedience, historically a political tool of great importance to this country, is no longer a viable option for many activists....in future activists will probably have to divide into two camps. Those who do direct action will have to stay lean, mean and low on the food chain. They can't keep suing us when they don't get anything out of it.
Wilson and her colleagues had chained themselves to a yarder and hung a banner from it saying "From Heritage to Sawdust, Earth First!" They were arrested for interfering with the property of another and sent to jail. They thought it was all over when they got out of jail but then they were SLAPPED and Huffman & Wright won an award of $25000 in punitive damages and $5717 in actual damages. Wilson observed:
It seems so unfair that they can sue us for our little actions that barely even slow them down, but we can't sue them for destroying our ecosystems, stealing our trees, bribing politicians, calling us 'eco-terrorists', beating us up, creating an atmosphere of hate and violence and otherwise being selfish, ignorant jerks.
TABLE: Identity of First Party in 100 SLAPPs
The development of a climate of fear that dissuades citizens from speaking out on matters of public interest and discourages activists from continuing the 'honourable tradition' of civil disobedience is a threat to democracy and healthy political debate. Of course lawsuits are not the only way to dissuade healthy debate on issues of importance. Litigation is however increasingly utilised to intimidate people who cannot be influenced in other ways, for example through financial incentives or pressure from employers or professional associations. This is a direct threat to our democratic traditions and should be exposed and opposed by those who believe in the value of broad public participation in decision-making.
Professor Sharon Beder is a visiting professorial fellow at the University of Wollongong.
Sharon Beder's Publications can be found at http://www.uow.edu.au/~sharonb