Environmentalists Cherri Foytlin and Karen Savage authored
an op-ed for a Huffington Post blog
in which they accused scientific consulting firm Cardno ChemRisk, LLC, of “a
long, and on at least one occasion fraudulent, history of defending big
polluters using questionable ethics to help their clients avoid legal responsibility
for their actions.” With respect to “fraud[],”
the writers had alleged that ChemRisk accepted payment “to discredit research”
that would have been probative of liability in the pollution case that became the
basis of the movie, Erin Brockovich.
“Anti-SLAPP” motions, allowed in 28 states and D.C.
according to the
Digital Media Law Project, are pretrial, usually dispositive motions that
allow defendants to have the court take an early look at the merits of a tort
lawsuit, with an eye to dismissal.
A “SLAPP”
is a “strategic lawsuit against public participation” and refers to a lawsuit,
often but not necessarily defamation, that is brought more for the purpose of miring
an opponent in the burdensome transaction of litigation than for the purpose of
redressing wrongful injury.
A darling of the media defense bar, anti-SLAPP is heralded
as a contemporary savior of the right to petition and protest. Some—me included—are a good deal more
skeptical, finding that anti-SLAPP is often just one more hammer in the well-heeled,
corporate-defense-bar toolbox to pulverize a plaintiff who might have a
legitimate grievance but needs discovery to prove it—and furthermore a disincentive
to media defendants to mediate disputes or make reasonable settlement offers. In fact, media defendant victorious on anti-SLAPP
motions often are entitled to have their attorney fees paid by the plaintiff, a
remarkable departure from “the American rule” norm in U.S. litigation.
The terms of anti-SLAPP statutes vary considerably with state
law.
The
Massachusetts
anti-SLAPP law requires that the defendant have been exercising its “right
to petition,” an allusion to the First Amendment.
But the scope of petitioning activity
contemplated by the statute is much more permissive than the First Amendment
doctrine.
The statute embraces “any
statement reasonably likely to enlist public participation in an effort to
effect” governmental “review of an issue.”
As the court described the Foytlin blog post, it was “part
of the defendants’ ongoing efforts to influence governmental bodies by
increasing the amount and tenor of coverage around the environmental
consequences of the spill, and it closes with an implicit call for its readers
to take action.” In particular, ChemRisk
complained on appeal that the bloggers were not advocating on their own
behalf. The SJC, per Justice Lenk, found
the statute not so constrained.
This might have been the just outcome in this
litigation.
I don’t pretend to know
better.
The court wrote an excellent
explication of the Massachusetts anti-SLAPP statute and how it works
procedurally, as well as its policy purpose.
The court characterized the legislature’s purpose as “primarily to
protect ‘citizens of modest means’ who speak out against larger, more powerful
entities.”
According to a footnote, “Foytlin
is a mother of six supporting herself with modest monthly stipends; she lives
in Louisiana less than fifty miles from the affected portion of the Gulf Coast
shore.”
I suppose ChemRisk is a brutal,
evil company,
like
Spiga Biotech in Syfy TV’s
Incorporated.
The opinion doesn’t say.
I have no warm and fuzzy feelings for ChemRisk, nor for BP and
its partners in oil drilling. But before
we sing another round of hymns in knee-jerk praise of anti-SLAPP legislation,
let’s at least acknowledge that the statute nowhere turns on the relative
social power of the parties, or on their wealth, or on their parental or corporate status.
Media Goliaths already have a thousand and one ways to win a
defamation lawsuit, even upon publication of falsity and refusal to update, investigate,
or correct.
Sometimes plaintiffs are
just Davids whose lives have been up-ended by malicious allegations calculated to
advance an agenda regardless of the collateral damage.
I know what I’m
talking about. Cutting off a
plaintiff at the knees and chilling the right to petition of truly aggrieved
individuals is hardly an effective response to the very real problem of
litigation transaction costs.
Let’s not
be too quick to congratulate ourselves on another win for free speech.
