Written by Taylor Anvid, Georgetown JD candidate, 2014
Corporations and their attorneys have found a new weapon to stymie human rights claims against them. In the last decade or so, corporations have begun using various torts as weapons against individuals and lawyers in retaliation for bringing suits against them for human rights abuses. These types of legal actions are not limited to corporations; individuals, small business, and government entities have also engaged in this practice. These types of claims are known as SLAPP suits: Strategic Litigation Against Public Participation. Their purpose is often to retaliate against critics and minimize the PR damage that comes with allegations of human rights abuses.
SLAPP suits are rarely initiated with the expectation of winning. The primary purpose of these suits is to create further hurdles for the petitioners of the original suit. The additional litigation necessary for defending against a SLAPP suit can ramp up costs such that the plaintiffs in the original litigation can not maintain the suit. Intimidation is another purpose, with the ultimate goal of pressuring the original plaintiffs to drop the suit or retract their claims. Overall this can have a drastic chilling effect on public speech if individuals know they can be targeted for legal action when engaging in their constitutionally protected right to free speech.
While there is no federal legislation recognizing SLAPP suits, twenty-seven states have passed their own legislation seeking to limit this behavior. For example, California has an anti-SLAPP statute, which allows a judge to dismiss a suit or strike claims that meet the SLAPP criteria in that state. Some federal courts, namely the 9th and D.C. circuits, have recently begun to apply these state laws in their courts. The lack of uniformity among the states regarding anti-SLAPP statutes is problematic because it encourages forum shopping as well as potentially chilling public speech. People may second-guess their participation in public speech if they are unfamiliar with the legal protection available to defend against this type of suit.
Recently corporations and the law firms representing them have started using SLAPP tactics more aggressively. Some common torts that are used as SLAPPs are: defamation, conspiracy, malicious prosecution, nuisance, and interference with contract and/or economic advantage. These types of suits are a significant concern for human rights practitioners looking to bring suits against large corporations for their human rights violations. Demonstrations, lawsuits, and information sharing are generally their primary tools for advocacy. Public speech and many other actions related to human rights advocacy could be contorted to fit in these doctrinal boxes, thus potentially severely limiting the ability of these organizations to do their work.
Recent examples are illustrative. The New York Times recently ran an article about Steven Donziger’s fight against Chevron. Donziger represented plaintiffs who successfully sued Chevron for damages relating to oil pollution from Chevron’s (formerly Texaco) operations in Ecuador. Chevron is currently suing Donziger for civil racketeering and refusing to pay the damages owed in the judgment entered against them. Cristobel Bonifaz, another attorney who worked in Ecuador, has also experienced these tactics first hand. Bonifaz worked in Ecuador representing Ecuadorians in bringing their claims against Chevron. In 2009 Chevron sued him for malicious prosecution. The U.S. District Court of San Francisco applied the SLAPP statute and found that Chevron’s malicious prosecution claim was not strong enough and failed to argue lack of probable cause or malice. The court granted Bonifaz’s SLAPP motion to strike. Chevron Corp. v. Bonifaz, 09-05371 CW, 2010 WL 1948681 (N.D. Cal. May 12, 2010). Though Chevron’s malicious prosecution claim was ultimately denied, they had successfully forced Bonifaz to expend a great amount of time and expense for his defense. Id.
Anti-SLAPP statutes have been successfully used in dismissing these frivolous suits in state court as well. In California, Fashion 21, known in the U.S. as Forever 21, brought a suit against the Coalition for Humane Immigrant Rights of Los Angeles for claims of defamation, interfering with prospective business advantage, unfair business practices, nuisance, and trespass. All of these claims were brought because CHIRLA demonstrated in front of Forever 21’s stores and handed out flyers describing its treatment of its garment workers. After the SLAPP suit was filed, the judge dismissed it in accordance with the statute because Fashion 21failed to prove that matters of public interest (for example the information on the flyers) were false.
IRAdvocates is now facing a SLAPP suit of its own. Drummond, despite years of ongoing litigation, decided in 2011 to file a libel suit against the Executive Director of IRAdvocates, Terrence Collingsworth. The libel suit is based on letters sent from Mr. Collingsworth to private individuals, one of whom later chose to make the letter public, without Mr. Collingsworth’s knowledge. The letters recounted some of Drummond’s activities in Colombia and upon seeing the letter, instead of refuting the claims with information of their own, which is generally done for discussion topics of interest to the public, they chose to sue Mr. Collingsworth for libel. Unfortunately for procedural reasons, and perhaps because of the forum shopping done by Drummond (the suit was filed in Alabama, which has no anti-SLAPP statute) the case is still ongoing, thus pulling both parties from the more important Drummond suits.
This type of retaliatory behavior dements the role of the justice system in the United States. The recognition of SLAPP suits is a positive step forward in curbing the ability of corporations to bully those who bring suits against them into silence. With the increased use of SLAPP suits, it is imperative that there be uniformity in the protection against these types of suits, ideally through federal legislation, otherwise, this phenomenon will continue to chill the constitutionally guaranteed rights of the public to express their thoughts on matters of interest.