In recent years, increasing attention has been given to lawsuits motivated by a desire to censor or silence those bringing up a matter of public interest or concern through defamation lawsuits. Such a lawsuits is referred to as a “strategic lawsuit against public participation,” or SLAPP.
When a plaintiff files a SLAPP, the plaintiff knows he or she will not prevail. The plaintiff aims to instill fear or create legal expenses for the defendant to contest the claim, so that the defendant will cease his or her criticism. Usually, a SLAPP follows a legal threat or cease and desist letter.
Because of concerns regarding these lawsuits thwarting the First Amendment rights of people to speak freely on issues, dozens of states have passed anti-SLAPP legislation to counter the abuse of the courts to censor those raising legitimate issues of public concern. California enacted an anti-SLAPP law in 1992, which gives a defendant the right to strike a lawsuit meant to stifle free speech or the right to petition with a motion. The defendant who files an anti-SLAPP motion must show that the lawsuit aims to undermine constitutionally protected free speech, after which the plaintiff is burdened by showing that it has a reasonable chance of prevailing according to established law. This motion effectively stays discovery, so that the defendant is not burdened with the legal expenses during this part of litigation. If the motion is denied, the defendant has a right to appeal that decision. Should the defendant prevail on the anti-SLAPP motion, the defendant will be entitled to recover reasonable attorney’s fees.
Though SLAPPs may be motivated by a desire to chill free speech or criticism, they may backfire on plaintiffs by generating publicity due to what is termed the “Streisand effect.” The Streisand effect, coined by Mike Masnick of Techdirt in 2005, is named after Barbra Streisand, the famous singer who sued a photographer for taking photographs of and publishing her Malibu beach home to document coastal erosion for the California Coastal Records Project. As a result of this highly-publicized lawsuit, hundreds of thousands of people visited the website in the following months to look at the photograph in dispute. The Streisand effect takes place as a result of the psychological phenomenon of people motivated to see and hear what they are told they cannot or should not, thus amplifying rather than stopping the dissemination of the subject matter, especially on the internet. The defendant countersued and won in Streisand v. Adelman et al., in California Superior Court, case SC077257.
The challenge of SLAPP legislation comes in balancing the right to access the courts with the right of freedom of expression. Due to the complex nature of this problem, current SLAPP legislation in the majority of states that have enacted it may not sufficiently address the problem of vexatious lawsuits aiming to chill free speech and petitioning of government. More legal cases relating to SLAPPs will arise in the future, hopefully fleshing out the underlying issues better and bringing about more settled law to better protect the rights of all affected.