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

1. SLAPPS: Courts, Democracy, and Participation

SLAPPs: Courts, Democracy, and Participation In 1995, the lumber company Daishowa, seeking an injunction to prevent an ongoing boycott of their products, sued a small non-profit social group, the Friends of the Lubicon. In 2009, an environmental activist and opponent of the British Columbia salmon farming industry was sued for $125,000 by Mainstream Canada, a Norwegian-based company and the second largest salmon farming company in British Columbia. Also in 2009, the City of Guelph, in Ontario, launched a $5 million lawsuit against a group protesting the development of an industrial park that would, allegedly, have an adverse effect on the Hanlon Creek watershed, a sensitive ecological area. And in 2010, the Youthdale Treatment Centre of Toronto sued former patients and their parents, claiming that allegations made about the practices at the clinic constituted defamation. The treatment centre sought $5 million in damages and an injunction. These cases are all examples of a very specific type of lawsuit called a slapp, which stands for “strategic lawsuit/litigation against public participation .” Such lawsuits are brought for the purpose of preventing or discouraging political expression and comment on public issues. They are designed to limit protest and dissuade individuals, citizens, and activists from political participation. There are many instances of slapps, and they take a wide range of forms. Allegations of defamation, trespass, and a host of other civil wrongs often form the basis of a slapp lawsuit. The cases can involve a wide range of plaintiffs, ranging from individuals, corporate executives , and politicians to companies and governments. Defendants may 1 2 Blocking Public Participation similarly range from individual citizens to a variety of social movement organizations, including interest groups, activist coalitions, and grassroots community organizations. What all of the cases have in common, regardless of their form, is that they take place within a context of political contestation . The lawsuit, while alleging a civil claim based in common law, is a strategy within a broader political dispute. The purpose is often to put activists on the defensive, redirect their energies and resources to a costly legal battle, and, in some cases, shut down their political campaign entirely. Sometimes a slapp is a defensive and reactive measure on the part of those who launch such cases. In other instances, it is a pre-emptive strike, intended to prevent democratic debate and political discussion of issues of public importance. In many instances, the goal is not to see the case through to completion, or even to secure a final legal victory. Cases can become extremely lengthy and drawn out, complicated by motions, preliminary hearings, trials, and appeals that many activists simply do not have the resources or energy to continue. slapps frequently involve tactics of attrition. slapps are an important strategy that can be employed by those in positions of power and authority to attack and sideline those who are challenging their activities. By invoking the authority of the courts, these suits represent a significant threat to both freedom of expression and political participation. More broadly, they raise questions about the role of the courts in policing and adjudicating political disputes as well as about the nature and quality of our democratic practices. If the quality of our democracy is measured by the degree to which people can actively and freely participate in political life, then the role of slapps, and the ability of some to use the courts to curtail and constrain debate on public issues, needs to be carefully examined. In general, slapps have been given fairly limited attention within the Canadian context. This sharply contrasts with the situation in other jurisdictions , particularly the United States, where there is a considerable literature on the phenomenon. While this undoubtedly reflects the more litigious nature of American political culture in general, it also reflects the degree to which public interest law has become a fixture of both American politics and academics. The study and practice of public interest law, by which we mean the utilization of the law and rights to advance social movement causes, are highly developed in the United States. Public interest law itself is the subject of much academic and political debate. It focuses on a variety of dimensions, including the utilization of the law by Courts, Democracy, and Participation 3 elite groups as a tool for resisting social change and striking back at activists and social movement organizations. In Canada, by contrast, the study of...