Shellie’s Medical Malpractice Nightmare

and her

Fight for Freedom of Speech


What Is A SLAPP Lawsuit?

image of taped mouth with red circle with line through itOne of the least known and most lethal threats to free speech is a kind of lawsuit known as a SLAPPIt’s an acronym for Strategic Lawsuit Against Public Participation, and it’s used by free speech advocates to describe merit-less lawsuits intended to spend critics into silence. That’s why SLAPPs target ordinary citizens much more than deep-pocketed media outlets and why Congress is currently considering anti-SLAPP legislation

Strategic Litigation against Public Participation.

The term was coined in the 1980s in response to retaliatory lawsuits being filed against individuals for speaking out on political issues. The use of the term has been expanded to include public participation in any public matter. Critics claim that businesses or individuals are bullying customers into silence by forcing them to pay out of pocket to defend themselves in response to the complaint. Only 28 states currently have legislation in place to protect individuals from SLAPP lawsuits; however, level of protection offered by each state’s laws are different.

The states with anti-SLAPP statutes are: Arizona; Arkansas; California; Colorado; Delaware; Florida; Georgia; Hawaii; Illinois; Indiana; Louisiana; Maine; Maryland; Massachusetts; Minnesota; Missouri; Nebraska; Nevada; New Mexico; New York; Oklahoma; Oregon; Pennsylvania; Rhode Island; Tennessee; Utah; Washington and West Virgina.

Proposed Federal Anti-SLAPP Law

The Citizen Participation Act H.R. 4364 sponsored by Tennessee Rep. Steve Cohen was initiated in December, 2009. If this legislation passes, the CPA will provide a unified federal law to address the growing problem of these retaliatory lawsuits. If the defendant resides in a state that does not have anti-SLAPP legislation on the books or has weak legislation, the defendant can file to remove the claim to the federal district court. The purpose of the CPA is to protect individuals in speech or conduct in any “issue of public interest” which is defined in the Citizen Participation Act as:

“An issue of public interest includes any information or opinion related to health or safety; environmental, economic or community well-being; the government; a public figure; or a good, product or service in the marketplace.”

The proposed law will allow the defendant to file a motion to dismiss which will end the litigation early on, will suspend discovery and, if granted, will force the plaintiff to reimburse legal fees and expenses.

Preventing SLAPP Lawsuits

  • Make Opinions Clear and Truthful: Be certain that any statements made are truthful and accurate. Statements that are simply an opinion cannot be determined to be false, as they are just opinions. When making statements regarding negative experiences with a business, it is a good practice to use the terminology “In my opinion.” Doing so will help in the defense of such statements.
  • Check Homeowners or Renters Insurance: Many homeowners’ insurance policies provide some coverage for “Personal Injury Liability”. The level of coverage provided can be: no coverage, coverage only for legal fees, and coverage for legal fees and damages, if any. Of course, coverage that includes damages is preferable, but one that provides legal fees will help in getting the motions filed early. Finding an attorney to handle a SLAPP case, especially for a person who can’t really afford one, is a real challenge.

What To Do About a SLAPP Lawsuit

Any complaint received should be reported immediately to the insurance company providing liability coverage, if applicable. If not, the sooner legal counsel is secured, the better the chances are that the lawsuit can be headed off. The motion to dismiss has a time limit. Missing legal deadlines can cause a defendant to lose valuable defenses including the right to request that the lawsuit be dismissed as a SLAPP.

What is SLAPPing Back?

If a defendant is successful in having a lawsuit dismissed as a SLAPP, the defendant might be able to file a lawsuit, a SLAPP back, against the company or individual that filed the initial lawsuit. In a SLAPP back lawsuit, the injured party can file for compensation for abuse of the legal process. Damages might include pain and suffering, lost wages, or lost earnings. An experienced attorney can help to determine the likelihood of success in a SLAPP back lawsuit.

SLAPP lawsuits are designed to hinder freedom of speech

As more and more people use the Internet to communicate, people must realize that publishing words on the Internet that could be construed as hurtful might be met with a strong response. Everyone must be accountable for the honesty and accuracy of what they publish. Likewise, it is time our legal system step up to protect our right to voice our opinions and experiences freely.

“SLAPP’ed” Into Submission

For the plaintiff who files a SLAPP lawsuit, winning is not necessarily the intent of the individual or entity filing the SLAPP; fear, defendant exhaustion and intimidation are the main goals.

“Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined,” New York Supreme Court Judge J. Nicholas Colabella said of SLAPP suits. Even if the plaintiff loses, they win by scaring others away from the debate. And if the SLAPP perpetrator can stretch the case over a long enough period of time, the defendant, even if innocent or with a meritorious defense, may be financially forced to settle or concede the fight according to Colabella. A SLAPP is an assault using the legal system as the weapon of choice.

Individuals, corporations and governments file SLAPP suits packaged to look like civil suits alleging defamation, tortuous interference with business relationship, intentional infliction of emotional distress, invasion of privacy, nuisance, malicious prosecution and other personal injury charges intended solely to embezzle the “offender’s” time and finances by means of legal wrangling and continually mounting legal costs. Most individuals and small businesses do not have the time or the financial resources to invest in their defense choosing rather to end the publication or protest. Not only does this remove the primary thorn from the plaintiff’s side, but this tactic produces sufficient fear to keep others from voicing their beliefs.

Know your rights

Under the Constitution, you have a right to free speech and to petition the government. Courts have interpreted these rights to form legal doctrines that protect the types of activities that attract SLAPPs. Note, however, that the Constitution generally does not protect defamatory, threatening, or harassing speech.