Rabbit Advocacy Animal Matters
SLAPP Happy: Corporations That Sue to Shut You Up
PR Watch http://www.prwatch.org
The corporate technique of suing people into silence and submission has become so popular that it even carries its own cute nickname in legal circles. Such lawsuits are known in lawyer lingo as "SLAPP suits," an acronym for "strategic lawsuits against public participation."
"Thousands of SLAPPs have been filed in the last two decades, tens of thousands of Americans have been SLAPPed, and still more have been muted or silenced by the threat," write law professors George Pring and Penelope Canan in their 1996 book, SLAPPs: Getting Sued for Speaking Out.
In their investigation of the trend, Pring and Canan found that "filers of SLAPPs rarely win in court yet often 'win' in the real world, achieving their political agendas. We found that SLAPP targets who fight back seldom lose in court yet are frequently devastated and depoliticized and discourage others from speaking out--'chilled' in the parlance of First Amendment commentary."
SLAPP suits achieve their objectives by forcing defendants to spend huge amounts of time and money defending themselves in court.
"The longer the litigation can be stretched out . . . the closer the SLAPP filer moves to success," observes New York Supreme Court Judge J. Nicholas Colabella. "Those who lack the financial resources and emotional stamina to play out the 'game' face the difficult choice of defaulting despite meritorious defenses or being brought to their knees to settle. . . . Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined."
"Initially we saw such suits as attacks on traditional 'free speech' and regarded them as just 'intimidation lawsuits,' " Pring and Canan state. "As we studied them further, an even more significant linkage emerged: the defendants had been speaking out in government hearings, to government officials, or about government actions. . . . This was not just free speech under attack. It was that other and older and even more central part of our Constitution: the right to petition government for a redress of grievances, the 'Petition Clause' of the First Amendment."
SLAPP suits threaten the very foundation of citizen involvement and public participation in democracy. "Americans by the thousands are being sued, simply for exercising one of our most cherished rights: the right to communicate our views to our government officials, to 'speak out' on public issue," state Pring and Canan. "Today, you and your friends, neighbors, co-workers, community leaders, and clients can be sued for millions of dollars just for telling the government what you think, want, or believe in. Both individuals and groups are now being routinely sued in multimillion-dollar damage actions for such 'all-American' political activities as circulating a petition, writing a letter to the editor, testifying at a public hearing, reporting violations of law, lobbying for legislation, peaceful demonstrating, or otherwise attempting to influence government action."
SLAPPed Into Submission
Corporate libel lawsuits bring the formidable powers of government and industry together for the purpose of suppressing the views of people with complaints against the system. Ironically, the PR industry is eagerly hyping these lawsuits as populist solutions to the problem of too much government.
Tom Holt, a Washington policy wonk whose life reflects in microcosm the pattern of collusion that unites government and industry interests, epitomizes the contradictions and hypocrisy inherent in this position.
Holt began his career after receiving training at the Morton Blackwell Leadership Institute, a corporate-funded school which teaches conservative college students how to start their own campus newspapers to compete against perceived liberal bias in schools' official newspapers. Following a brief stint with the Richmond, Virginia Times-Dispatch, he became "research director" for the Commonwealth Foundation, helping churn out a study which argued that lawsuits against the tobacco industry did more harm than good, creating a "litigation superhighway where lawyers are the ones who will make the most money."
After serving as a speechwriter for two US secretaries of transportation, Holt went to work as a public-relations staffer for the right-wing Heritage Foundation before signing on at another right-wing Washington think-tank called the Capital Research Center. As a CRC "visiting fellow," he authored a book titled The Rise of the Nanny State: How Consumer Advocates Try to Run Our Lives, which accused the consumer movement of "capitalizing on the public's ignorance of science and the media's eagerness for calamity."
According to Holt, reforms are necessary to make it harder to sue corporations because "the consumer movement has imposed significant costs on industry--costs ultimately passed on to consumers--and has violated individual freedoms in a futile effort to protect us from our own actions and judgment."
In order to restore those freedoms, Holt is now calling for new laws so that corporations can use the nanny state more effectively to sue, chastise and punish their enemies. "Could lawsuits be the cure for junk science?" he asked in a 1995 issue of Priorities, the monthly publication of Elizabeth Whelan's corporate-funded right-wing advocacy group, the American Council on Science and Health.
Power to the Plaintiffs
Holt complained that current libel law "has been a major stumbling block to the progress of a lawsuit brought by the Washington Apple Growers against the National Resources Defense Council, perpetrators of the Alar scare. The growers initially filed suit in Yakima County (WA) Superior Court; but . . . the growers lost their case." (See our related story about the Alar case on page 10.) Fortunately, he added, "agribusiness is now fighting back, shepherding what are known as 'agricultural product disparagement laws' through state legislatures. . . . On the national level, the National Association of State Departments of Agriculture wants similar provisions to be included in the 1995 farm bill."
The drive has been spearheaded by the nonprofit, tax-exempt Animal Industry Foundation (AIF), which calls itself "animal agriculture's collective voice on food animal production, its effect on diet and environment, and its contributions to our quality of life."
AIF's corporate funders include the powerhouse Burson-Marsteller and Hill & Knowlton PR firms. Its trustees include a who's-who list of meat industry lobby and trade associations: the American Farm Bureau Federation, American Feed Industry Association, American Sheep Industry, American Society of Animal Science, American Veal Association., National Broiler Council, National Cattlemen's Beef Association, National Milk Producers Federation, National Pork Producers Council, National Turkey Federation, Southeastern Poultry & Egg Association and United Egg Producers.
"The model for these statutes was developed by the American Feed Industry Association," boasts an AIF newsletter. "If you'd like a copy of the model state legislation, please contact in writing Steve Kopperud at AFIA." AIF in fact shares the same address, phone and staff as AFIA--the American Feed Industry Association, a "national trade association representing the manufacturers of more than 70 percent of the primary formula livestock and poultry feed sold annually."
In a letter to Consumer Reports, Kopperud has defended the industry's rationale behind food disparagement laws, claiming that they "do not repress free speech, but rather compel a speaker to think twice about opportunistic or false statements and the damage such rhetoric can do. . . . Food disparagement laws, as tools to make more honest our national discussion of food safety, are the ultimate consumer protection."
The AIF speaks more bluntly in literature aimed at farmers: "Animal rights activists . . . threaten the survival of today's farmers and ranchers. . . . It's time to fight back! . . . through advertising, elementary school programs, publications and videos, news media outreach and public opinion research."
Rather than push for legislation at the national level, the food industry has worked quietly state-by-state while avoiding a controversial national debate. So far, thirteen state legislatures have approved product disparagement laws--Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota, and Texas. Other states are considering similar measures.
Profits Before People
Nicknamed in the news media as "banana laws" or "broccoli bills," agricultural product disparagement laws are designed to give even more power to SLAPP suits by rewriting the rules of evidence so that the food industry will have a better chance of winning in court.
The new legislation is designed specifically and expressly for the purpose of protecting industry profits by preventing people from expressing opinions that might discourage consumers from buying particular foods.
"An anti-disparagement law is needed because of incidents such as the Alar scare several years ago," argued the Ohio Farm Bureau in lobbying for the new law. "Apple producers suffered substantial financial losses when people stopped eating apples because of reports that Alar, a pesticide which can lawfully be used on apples, would cause serious heath problems. These reports were later proven to be false, but the damage had been done."
The penalties for food disparagement vary from state to state. In Idaho, defendants can be required to pay a penalty equal to the plaintiff's claimed financial damages. In Texas, the penalty is three times the damages. In Colorado, the legislation included provisions for actual jail time of up to a year.
According to Holt, the new laws place "the onus on the disparaging activist, rather than under liability law, which would place the onus on the grower or manufacturer of the disparaged product."
Shifting the onus means that instead of corporations being forced to prove their critics are wrong, food critics can be judged guilty unless they can prove that what they have said is correct.
"That type of speech, I don't feel needs to be protected," argues Kansas cattle rancher Jim Sartwelle. "It's important to have some sort of backstop in place to penalize people for making unsubstantiated comments."
Truth in the Eye of the Beholder
The problem, of course, is that no one except God can consistently and correctly distinguish between "correct" and "incorrect" views. "Who knows what the hell that is?" asks Tom Newton of the California Newspaper Publishers Association. "Scientists say there is no such thing as reliable scientific fact, that science is based on hypothesis and conclusions, and is ever-changing."
"If I say that hogs kept in confinement are being cruelly treated, am I making a mistake of fact?" asks farmer and Illinois law professor Eric Freyfogle, explaining his opposition to the legislation. "Indeed, I am not. What I'm talking about is a matter of ethics. I may view as unethical behavior that which someone else finds entirely reasonable. But that's the great benefit of a democracy based on free speech--we can air our differences in public, without worrying about the speech-police coming to arrest us."
"Agricultural disparagement statutes represent a legislative attempt to insulate an economic sector from criticism, and, in this respect, they may be strikingly successful in chilling the speech of anyone concerned about the food we eat," observes David Bederman, Associate Professor of Law at Emory University Law School. "The freedom of speech, always precious, becomes ever more so as the agricultural industries use previously untried methods as varied as exotic pesticides, growth hormones, radiation, and genetic engineering on our food supply. Scientists and consumer advocates must be able to express their legitimate concerns. The agricultural disparagement statutes quell just that type of speech. At bottom, any restriction on speech about the quality and safety of our food is dangerous, undemocratic, and unconstitutional."
Even though disparagement laws present a chilling threat to journalists, actual press coverage of new laws has been scant, tending to trivialize the issues with light-hearted commentary about "veggie hate crimes" or humorous wordplay. "Mind how you disparage asparagus or berate broccoli," advised the headline in the Los Angeles Times. "Don't bad-mouth that Brussel sprout. It could cost you," quipped USA Today.
Some Examples of Corporate Censorship Lawsuits
Canadian SLAPP info
One of the first cases in Canada to deal with a SLAPP was Fraser v. Saanich (see  B.C.J. No. 3100 (B.C. S.C.)) (QL), where the British Columbia Supreme Court struck out the claim of a hospital director against the District of Saanich, holding that it was a meritless action designed to silence or intimidate the residents who were opposed to the plaintiff’s plan to redevelop the hospital facilities.
Following the decision in Fraser v. Saanich, the Protection of Public Participation Act came into effect in British Columbia in April, 2001. It was repealed in August, 2001.
The first case to discuss and apply the PPPA was Home Equity Development v. Crow, (see  B.C.J. No. 1805 (B.C. S.C.)) (QL). The defendants application to dismiss the action against them was dismissed. The defendants failed to meet the burden of proof required by the PPPA, that the plaintiffs had no reasonable prospect of success. Many felt that the plaintiffs did not bring their action for an improper purpose, and the suit did not inhibit the defendants in their public criticism of the particular project.
In Ontario, the decision in Daishowa v. Friends of the Lubicon (see  O.J. No. 3855 Ont. Ct. Gen. Div.)) (QL) was also instructive on SLAPP’s. A motion brought by the corporate plaintiff Daishowa to impose conditions on the defendant Friends of the Lubicon Indian Band that they would not represent Daishowa’s action as a SLAPP was dismissed.
Québec's Justice Minister, Jacques Dupuis, has proposed an anti-SLAPP bill on June 13. The proposal will be voted on during the Fall 2008 sitting of the National Assembly.
Some political libel and forum shopping incidents, both common in Canada, have been called SLAPP suits, because such suits load defendants with costs of responding in unfamiliar jurisdictions or at times (typically elections) when they're extremely busy and short of funds. Both types of suits are almost unique to Canada, so there is little concern nor examination of whether political subject matter or remote forums are a clear indicator of SLAPP.
Comment: Comprehensive anti-SLAPP legislative reforms warrant serious provincial consideration before our rights and freedoms become seriously undermined. Canadian courts have seen the rise of actions that closely fit the description of SLAPPs. Targets of such action cannot defend themselves by relying on the Charter of Rights and the courts do not apply the Charter in purely private litigation. B.C. briefly had anti-SLAPP legislation in 2001, the Protection for Public Participation Act, before the incoming Liberal government had it repealed in August, 2001. The West Coast Environmental Law SLAPP Handbook (2002) provides useful information.
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