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

2. SLAPPS: Balancing Law and Democracy

SLAPPs: Balancing Law and Democracy In Chapter 1, slapps were presented as a threat to the values of political participation. These lawsuits operate to redefine disputes, transforming issues of public debate into private issues subject to civil litigation. More broadly, they also operate to punish and threaten individuals and groups engaged in political participation, and potentially to dissuade others from participation. The chilling effect of these lawsuits on political participation cannot be underestimated. While slapps may be conceptually easy to understand, developing a definition of slapps can be difficult. This is because they need to be understood from a variety of perspectives. A definition of slapps needs to address issues around the intentions of the slapp filer, the nature of the defendant’s activities, and the overall effect of the litigation on political participation. The effect of litigation has to be understood in terms of its impact both on the individual defendants as well as on the organizations to which they might belong. Additionally, the impact of the litigation on other politically engaged individuals and groups needs to be assessed. This is complicated by the fact that it is very difficult to study slapps empirically . slapps take a variety of forms, raise a wide range of issues, and are launched in a range of judicial forums, and many never actually come to trial or get reported. 2 12 Blocking Public Participation slapps: The american public Interest law Context slapps came to prominence as a phenomenon of American public interest law in the late 1980s and early 1990s. Pring and Canan first called attention to the growing number of lawsuits brought against political activists, particularly in cases involving representations to environmental regulatory agencies (Pring 1988, 1989; Canan 1989; Canan and Pring 1988; Pring and Canan 1996). Much of the literature on slapps and many of the dominant approaches to both defining and confronting slapp lawsuits reflect the American experience. In particular, the specificities of the American constitutional system, and the First Amendment right to petition government, have played an important role in defining slapps. These have provided us courts and legislatures with a powerful tool for responding to slapp litigation, and also have served to define the scope of what constitutes a slapp lawsuit by reference to the nature of the political participation underpinning the case. Within this context, Pring and Canan defined slapps as involving four components: 1 The lawsuit must involve a civil claim for monetary damages. 2 The lawsuit is filed against a non-governmental individual and/or organization. 3 The lawsuit is filed because of the defendant’s advocacy directed towards a branch of the government, or the electorate more generally. 4 The advocacy is directed towards a substantive issue of public or societal significance. (Canan and Pring 1988, 387; Pring 1989, 8) This approach draws a sharp distinction between private and public figures as slapp targets and requires that the political participation precipitating the litigation involve protected activities under the right to petition. In other words, slapps relate to political participation directed towards convincing some level of the state to adopt a particular policy or decision. The right to petition, in the us constitutional context, has been interpreted very broadly. Its scope has been extended to include activities that only indirectly target government decision-makers, including activities directed at shaping public opinion. The reliance of American jurisprudence and legislation on the constitutional right to petition marks an important distinction between the American and Canadian contexts, as the Canadian Charter of Rights and Freedoms does not have a direct equivalent to the us First Amendment. Balancing Law and Democracy 13 Despite these differences, Pring and Canan’s definition provides a useful starting point for examining the dynamics of slapps, their main characteristics , and the issue of balancing the protection of political participation with safeguarding access to judicial processes. Pring and Canan’s definition of slapps draws our attention to two distinct conceptual issues. First, the scope of the litigation needs to be considered. This includes the nature of the claim before the court, the remedies sought, and the identity of parties to the litigation. Second, the scope of the political participation must be assessed. This requires an analysis of the political context and the nature of the political engagement that has given rise to the litigation. It raises the question of what constitutes a public issue versus a private one. It also requires us to...