A Better SLAPP Trap: Washington State’s Enhanced Statutory Protection for Targets of “Strategic Lawsuits Against Public Participation”

Michael Eric Johnston, A Better SLAPP Trap: Washington State’s Enhanced Statutory Protection for Targets of “Strategic Lawsuits Against Public Participation”, 38 Gonz. L. Rev. 263 (2003).

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A group of concerned citizens band together to oppose a powerful developer’s plan to build a solid waste disposal facility near a residential area. The citizen group appears at public hearings on the matter, submits letters and reports to relevant federal and state agencies, and publishes letters in the local media. The enraged developer then files suit against the citizen group and its individual members alleging, among other things, defamation, intentional interference with business relations, abuse of process, and civil conspiracy. The citizen group asserts a defense based on its constitutional right to petition the government. The tenacious and well-funded developer survives the citizen group’s early attempt to dismiss on the pleadings. The developer then assails the citizen group with oppressive discovery, seeking such information as membership lists, meeting minutes, and financial records. Eventually, after years of litigation, the citizen group prevails and recovers statutory costs and attorney fees. Notwithstanding the loss in court, the developer is pleased; it expected to lose going in, but the cost was sustainable. More importantly, the developer achieved an important strategic victory. The exhausted members of the citizen group, fearful of future litigation, will find it difficult to organize and sustain a campaign if a similar issue arises in the future.

The above scenario is typical of a Strategic Lawsuit Against Public Participation (“SLAPP”). A SLAPP is a retaliatory lawsuit filed against public interest groups and individuals whose constitutionally protected use of the political process offends their opponents. SLAPPs rose to prominence in the 1980s in a number of contexts. In the most common type of SLAPP, a private business enterprise sues a public interest group, and all individuals connected with it, under a variety of theories, particularly defamation. The vast majority of such suits fail on the merits, but not before achieving, or at least furthering, the strategic goal of disrupting the public interest activity and placing a chill on the public’s future participation in political activity….Read More

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