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. In Putnam County in New York, residents opposing a zoning
decision were sued for conspiracy and "interference with contractual
relations" by the developer which would benefit from the zoning decision.
The residents agreed to cease opposition in return for the developer's
dropping the lawsuit.
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.
One tactic sometimes used by developers
is to include John Does and Jane Does and "unnamed persons" as defendants
to "spread the chill". This is a way of claiming that there are additional
'offending' citizens who could not be identified before the suit was
filed and leaves the way open to sue other citizens later. It puts would
be activists on notice that they too could be added to the list of defendants.
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
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 debatea 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
Balance of Power
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.
Penelope Canan and George W. Pring,
'Strategic Lawsuits Against Public Participation', Social Problems,
Vol. 35, No. 5 (1988) , p. 515; Pring & Canon, 'SLAPPs', p. 381.
George W. Pring and Penelope Canan,
'"SLAPPs""Strategic Lawsuits Against Public Participation"
in GovernmentDiagnosis and Treatment of the Newest Civil
Rights Abuse' in Civil Rights Litigation and Attourney Fees
Annual Handbook, Clark Boardman, 1993.
Diana Jean Schemo, 'Silencing the Opposition
Gets Harder', New York Times, 2 July 1992.
Tobi Lippin, 'Uncivil Suits', Technology
Review, Vol. 94, No. 3 (1991) , p. 15.
Chris Tollefson, 'Strategic Lawsuits
Against Public Participation: Developing a Canadian Response', The
Canadian Bar Review, Vol. 73 (1994) , p. 207.
Catherine Dold, 'SLAPP Back!', Buzzworm:
The Environmental Journal, Vol. IV, No. 4 (1992) , p. 36.
Kim Goldberg, 'SLAPPs Surge North: Canadian
Activists Under Attack', The New Catalyst, Vol. 25 (Winter 1992/3)
, pp. 1-3.
Happy:Corporations That Sue to Shut You Up,
PR Watch, No 2, 1997.
Wild Law, a Non-Profit Environmental
SUITS: What to do When the Empire Strikes Back
Simon Waters, INTERFOR Tries to Bankrupt
BC Forest Activists, Taiga-News, no 21, June 1997.