History of SLAPPs
Large lawsuits have been used to shut down critical speech for about as long as people have been able to sue each other. Here is a recent history.
1980s - 1990s
In 1989, two professors at the University of Denver, George W. Pring and Penelope Canan, coined the term “Strategic Lawsuits Against Public Participation” (SLAPPs) to describe this phenomenon. Pring and Canan define a SLAPP as a civil complaint filed against non-governmental individuals or groups because of their communication on an issue of public interest. The suits are without merit and contain an ulterior political or economic motive, such as to intimidate the group into silence.
SLAPPs operate to shut down speech and other forms of public participation on matters of public concern, ranging from corruption to child abuse (see inset box). The outcome of the lawsuit is not important: the process alone is often enough to exhaust a public interest group’s resources, capacity, and morale.
In their 1996 book SLAPPs: Getting Sued for Speaking Out, Pring and Canan tracked what they recognized to be a growing phenomenon, directed at the time toward environmental groups and attributable in part to the rise of those groups in the 1970s. SLAPP bullies now target a wide range of individuals and organizations acting in the public interest.
2000s - Present
In recent years, SLAPPs have been growing and applying an increasingly familiar script. They are excessively long and convoluted, contain numerous counts, and are directed against individuals as well as the organization in question (thereby maximizing their capacity to intimidate). Some states’ laws are more amenable to SLAPPs than other laws, allowing powerful interests to directly target the critical speech itself. Defamation claims have become a favorite tool of SLAPP bullies and frequently form the basis of SLAPPs. Trespass on private land is another common claim.
Meanwhile, in the era of mass communications, traditional media outlets are no longer the only ones producing content for the public. Any individual or civil society advocate can reach broader audiences. More people and nonprofit organizations are creating content--much of it critical of powerful interests. And SLAPPs are becoming more pervasive as a tool for retaliating against critics.
Case Study: Clergy Sex Abuse Scandal
The story of how a team of investigative journalists exposed a conspiracy to cover up clergy child abuse was brought to public attention in 2015 with the Oscar-winning film Spotlight. What is less well known is the part SLAPP played in suppressing the truth about clergy sexual abuse across the US. In the years running up to the events depicted in the film, accused priests filed a dozen or so lawsuits across the country, including a 2004 libel case against the Survivors Network for those Abused by Priests (SNAP). SNAP is now a high-profile proponent of a federal anti-SLAPP legislation.
The RICO Threat
Few laws in the United States have been more notoriously open to abuse than the Racketeering Influenced and Corrupt Organizations (RICO) Act. First introduced to tackle mafia activity, RICO is a powerful and sweeping law that allows civil parties (as well as federal prosecutors) to take action against racketeering activity. Since the law is directed at criminal acts, it is punitive in nature and allows civil parties to recover triple the amount of damages they suffered. RICO therefore provides a uniquely powerful means of intimidating advocacy groups and activists. It enables corporations to smear these groups as “criminal enterprises,” while claiming exorbitant damages for the “harm” they claim to have suffered.
Throughout the 1970s and early 1980s, RICO went virtually unused as a tool for bringing civil lawsuits. By 1985, however, Supreme Court judges had begun taken notice of the increasingly abusive way in which civil RICO was being applied. Justice Thurgood Marshall noted in the case of Sedima S.P.R.I v. Imrex Co: “many a prudent defendant, facing ruinous exposure, will settle even a case with no merit. It is thus not surprising that civil RICO has been used for extortive purposes, giving rise to the very evils that it was designed to combat.”
Despite these warnings, the use of civil RICO suits exploded. Between 2001 and 2006, civil RICO plaintiffs filed an average of 759 private civil claims every year.
The potential use of civil RICO as a weapon against civil society organizations became seductively clear to corporations after Chevron was ordered by Ecuador to pay $19 billion in compensation for dumping toxic wastewater, hazardous waste, and crude oil in the Ecuadorian Amazon. Rather than pay the victims, Chevron used RICO to go after the affected communities’ American lawyer, Steven Donziger, as well as some of the plaintiffs themselves. In part by targeting Donziger, the company succeeded in blocking the judgment against it -- the RICO judgment included an injunction against enforcement in the United States. In July 2018, Ecuador’s highest court upheld a $9.5 billion judgment against Chevron. But Chevron has sold its assets in Ecuador and left the country, making it difficult to enforce that judgment.
Chevron also used its RICO lawsuit to name a number of environmental organizations, journalists, and shareholder activists as "non-party co-conspirators." The company pursued sweeping subpoenas to gain access to the internal communications of those organizations and individuals, in an effort to intimidate and suppress the free speech of those speaking out against Chevron's actions.
Chevron’s novel use of RICO rippled through to the boardrooms of other corporations facing criticism from civil society organizations. Recently, the law firm of Kasowitz Benson Torres LLP has been working with two companies -- Resolute Forest Products and Energy Transfer Partners -- to bring RICO lawsuits against Greenpeace and other civil society organizations.