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Midweek Perspectives: Keep free speech free: punch back at SLAPP

Businesses must not be allowed to squelch citizens' First Amendment rights. Support state HB 374

Wednesday, February 10, 1999

By Robert D. Richards

Consider this scenario: A citizen shows up to a public hearing to voice concern about plans for a new mall development. However, instead of being thanked for participating in the democratic process, he or she is sued by the developer for several million dollars.

 
  Robert D. Richards is an associate professor of journalism and law and founding director of the Pennsylvania Center for the First Amendment at Penn State University. He is the author of "Freedom's Voice: The Perilous Present and Uncertain Future of the First Amendment" (Brassey's). 
 

While this situation may sound outrageous (and it is!), it is also very real, happening with alarming frequency and with equally alarming consequences for the political process.

This relatively recent phenomenon is called SLAPP - Strategic Lawsuit Against Public Participation - and it's the subject of a bill introduced this week in Harrisburg by state Rep. Camille George, D-Clearfield. House Bill 374 is designed to protect citizens who speak their minds about issues relating to the environment.

While the bill may be new, the protections included in it are as fundamental as the constitution itself.

The public, for the most part, knows very little about SLAPP, but unfortunately that may change as more and more people become entwined in this process.

In a typical SLAPP action, a citizen or group communicates information to the government. Then comes the lawsuit, most often filed by a large business or corporate entity, and the citizen's nightmare begins. SLAPP targets must hire attorneys to defend rights they already have under the Constitution, notably free speech and the right to petition the government for a redress of grievances.

Although the corporations that file these suits often end up losing in court, the suit serves its purpose in suppressing speech. The suit itself works to drain the target both financially and emotionally and serves not only as political retaliation but also as a warning to others not to oppose the project.

In most of this litigation, citizens ultimately prevail because both state and federal constitutions guarantee the right to petition government. That right is fundamental if Americans are truly to be shareholders in the democracy. SLAPP suits cut straight to the core of this right.

Yet, winning the lawsuit is a hollow victory if in the process of defending their constitutional safeguards, the SLAPP targets lose their life savings in legal fees.

House Bill 374 is designed to prevent that result. It creates an immunity for citizens who exercise the right of petition or free speech in a matter related to environmental law or regulation.

Moreover, it permits a court to strike any lawsuit that arises out of such speech. This provision enables courts to cut short the life of the lawsuit and thus save the SLAPP target thousands of dollars in attorneys fees and countless hours of emotional strain. The final blow to those who use legal process for bad faith purposes is the bill's allowance of recouping attorneys fees and costs for the target.

Twelve states today have laws similar to HB 374, and Pennsylvania has tried before. Each time the Chamber of Business and Industry lobbies hard to block its passage, and each time it has been successful.

Business interests contend that anti-SLAPP measures restrict their right to file lawsuits. That argument is specious, though, because these laws merely ensure that litigation without merit will end quickly, with the costs borne by the filer.

It is no secret that the founders of this country in setting up the democracy insisted upon the ability of citizens to communicate with their representatives. Americans have banked on that guarantee for more than two centuries.

We recoil when we see the governments of other countries suppressing the free speech rights of their citizens. Ironically, though, there has been little outcry about the use of legal process in his country to accomplish the same result.

Now, the General Assembly can do something about it.



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