Blocking Public Participation: The Use of Strategic Litigation to Silence Political Expression

6. Resisting and Defending against SLAPPS

6 Resisting and Defending against SLAPPs In Chapter 5, we examined various attempts to implement legislation to regulate slapp litigation and reduce its incidence. As we saw, while there have been many proposals for legislation, and considerable public demand, very few jurisdictions in Canada have successfully implemented regulatory frameworks. Given this, it is necessary to consider how individuals and social groups can respond to slapps and prepare for them. In conflicts over environmental issues and land-use decisions, slapps increasingly appear to be part of the arsenal of weapons brought to bear on citizens and development opponents. The chilling effect of this sort of litigation, while not to be underestimated, can be minimized if social movement organizations are able to plan and organize effectively to respond to slapps. Moreover, the response to a slapp, if framed correctly, can be managed in such a way as to provide an effective tool in a group’s overall political campaign. To the extent that slapps transform political disputes into legal disputes, the slapp target must find a way to work within the legal framework to reclaim and reassert the political dimension of the conflict. In other words, the dichotomous option of law versus politics must be resisted. The fact that alternatives to this option exist, however, should not be interpreted as a reason “not to worry” about the problem of slapps. Democracy and expression, as well as the legitimacy of judicial processes, are still endangered by lawsuits that are designed to block political participation. 124 Blocking Public Participation The political Opportunities of a lawsuit Lawsuits are something that most people rarely encounter. This is one of main reasons slapps are so successful. Those who launch slapps often have far more experience of the legal system than the defendants. Litigation is, for these “repeat players,” part of doing business. While suing activists may be somewhat less common, their experience of the legal system means that they are quite comfortable in thinking about law as a strategic or tactical device. If one is comfortable suing a competitor for unfair practices, or a supplier for breach of contract, then suing activists over the disruption of business plans is a step that is easily taken. For the defendants, however, the receipt of a lawyer’s letter demanding a cessation of activities and threatening litigation, or the receipt of a statement of claim suing for millions of dollars, is quite another matter. Moreover, if an interim injunction has been issued, failure to comply can amount to contempt of court and be punishable by fines or imprisonment . The stakes in the political struggle are increased considerably, and become much more immediate and personal. Bankruptcy and potential imprisonment are suddenly possibilities that may never have been contemplated when one joined a citizens’ group. Of course, these are worst-case scenarios. The data indicates that the vast majority of slapps are dismissed. Worst-case scenarios, therefore, rarely come to pass. Even if the plaintiff is victorious, it is quite possible that the court will not award the full damages claimed. In Daishowa Inc. v. Friends of the Lubicon, the court ruled in favour of the company, but ordered one dollar in damages. In doing so, it sent a very clear message to the company regarding the court’s assessment of the overall merits of its case. Those that are subject to slapp litigation need to remember that the damage claim is designed to intimidate and to chill political expression. The likelihood of the court awarding those damages, therefore, may be quite slim. If one takes the question of damages out of the equation, the issue then becomes one of defending the lawsuit. While this can also be an expensive proposition, there are ways of thinking about the lawsuit that make it both less daunting financially and potentially more worthwhile politically. There is considerable literature on the subject of social groups using courts as part of their political strategy (McCann and Silverstein 1993; Sheldrick 2004); however, this literature tends to focus on those situations where the group initiates litigation. These cases are often brought Resisting and Defending against SLAPPs 125 to assert a rights-based claim, and they are usually against the state. Such litigation might seek to overturn a statutory provision or regulation, or to extend benefits to groups and individuals previously excluded. The slapp situation is somewhat different in that the social group is on the defensive. This...