Public Health and the Citizen Participation Act
It would be difficult to conceive of any topic of dissension
that could be of greater concern and interest to all Americans than the safety of the food that they eat. - Judge Mary Lou Robinson, United States District Judge
Citizen participation is critical to health, safety and environmental well-being, and citizens are increasingly becoming aware of health risks and acting to build and protect healthy communities.
But with this increase in citizen participation has come an expanded use of a pernicious form of lawsuit, known as Strategic Lawsuits Against Public Participation (SLAPPs), which are brought against those who speak out about, or encourage government action on, public health issues.
SLAPPs harass and intimidate, and divert attention and resources from the underlying public issue. Such lawsuits turn the justice system into a weapon, and have a serious chilling effect on the free speech that is so vital to the public interest.
The Citizen Participation Act protects against SLAPPs by:
1. Broadly defining protected speech to include information about health, safety, the environment and community well-being;
2. Providing a procedure for quick dismissal, and limiting or prohibiting discovery;
3. Providing for attorney’s fees and costs for a defendant who successfully has the case dismissed.
SLAPPs Targeting Public Health Advocates
Horizon Group Management, LLC v. Bonnen, No. 2009L008675
In July 2009, the former tenant of a Chicago apartment complex who is involved in a class action lawsuit against the apartment property management company for violations of Chicago Residential Landlord Tenant Ordinances, sent a tweet to her network of twenty people, commenting: “Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it's OK.” Based on the comment, the realty company sued her for defamation, alleging $50,000 in damages, in Illinois state court. When asked about the lawsuit, Jeffrey Michael, whose family runs the real-estate management company that filed suit said: “We’re a sue first, ask questions later kind of an organization,” though he later apologized for the remarks. See a summary of Horizon Group Management, LLC v. Bonnen, No. 2009L008675 at Wikipedia.
Engler v. Winfrey, 201 F.3d 680 (2000)
In perhaps the most well-known SLAPP, Oprah Winfrey was sued in 1996 by Texas cattle ranchers after a show called “Dangerous Food,” in which she interviewed experts on mad cow disease, and said she wouldn’t eat another hamburger. Several cattlemen complained to the Oprah Winfrey Show that their business was being damaged. Winfrey aired another show one week later to expound upon the "Dangerous Food" broadcast. In that show, the guests reiterated that no mad-cow had ever been found in the U.S., and reassured viewers that cattlemen were doing "everything it takes to protect the health of . . . cattle and . . . consumers." Despite the president of the National Cattlemen's Beef Association personal thanks to Winfrey for the subsequent show, the cattleman moved forward with a lawsuit against Winfrey, alleging more than $12 million in damages for violations of the Texas False Disparagement of Perishable Food Products Act, and the torts of business disparagement, defamation, negligence, and negligence per se. Texas does not have an anti-SLAPP law, so Winfrey fought the SLAPP in trial for six weeks before a jury found in her favor. In 2000, the U.S. Fifth Circuit affirmed the ruling. Find a variety of documents related to Engler v. Winfrey, 201 F.3d 680 (2000) at LegalCaseDocs.
Auvil v. CBS "60 Minutes," 800 F. Supp. 928 (E.D. Wash. 1992), aff'd, 67 F.3d 816 (9th Cir. 1995) (Foodspeak)
In another famous SLAPP, in 1989, 60 Minutes broadcast a story about the harmful effects of a chemical called alar, used in apple growing. Apple farmers in Washington state sued 60 Minutes, its parent companies and the National Resources Defense Council, alleging more than $200 million in damages. The suit was eventually dismissed because the apple growers could not show that the statements made by 60 Minutes were false.
Nance et al v. AVX Corporation, Case No. 4:2008cv00515
In an example of creative abuse of the courts, in 2008 in South Carolina, AVX Corp., an electronic components manufacturer, was sued by many of the its neighboring landowners for illegally dumping chemicals into groundwater. In response to the suit, AVX filed a request before a federal judge to force residents of the neighborhood to help pay for testing and cleanup costs that could top millions of dollars. Two weeks later, after public pressure but before the judge issued a decision, the company withdrew the request. See articles about Nance et al v. AVX Corporation here and here.
Kjellberg v. Weisbrich, No. 86-C5-99-1639 (Minn. Dist. Ct. Wright County Oct. 19, 1999)
In 1999, resident Jean Weisbrich and All Parks Alliance for Change, a local community group in Monticello, Minnesota, were working for better conditions in a local mobile home park. Weisbrich wrote to state representatives and other government officials setting forth her concerns about park conditions, and encouraged other residents to do the same. Then, at the request of a representative from the State Department of Health, Weisbrich distributed public health notices instructing residents to boil the potentially harmful water from one of the park's wells before using. Rather than work on conditions or explain how the parks met applicable standards, the owner of the mobile home park, Kjellberg's Inc., sued Weisbrich and the Alliance for defamation and interference with contracts. The Minnesota ACLU (ACLU) stepped in to act on behalf of Weisbrich, making a motion to dismiss the lawsuit under Minnesota’s then-relatively new anti-SLAPP law. At the same time, the MCLU filed a counterclaim against Kjellberg's for violating a Minnesota law that protects free speech in manufactured home parks and alleging that Kjellberg’s had used intimidation tactics on Weisbrich to prevent her from distributing public health notices about water quality. "We took on this case because we felt that the lawsuit was motivated by a desire to intimidate Weisbrich, APAC and other concerned park residents into giving up their right to free speech, freedom of association, and their right to petition government. Our concern was that, not only would the lawsuit punish our client for constitutionally protected speech, but it would also have a chilling effect on the speech of other residents wishing to improve park conditions," said MCLU Executive Director Charles Samuelson. Shortly after the MCLU filed its anti-SLAPP motion, Kjellberg's agreed to dismiss its lawsuit with prejudice, on the condition that Weisbrich dismiss her counterclaims. Kjellberg v. Weisbrich, No. 86-C5-99-1639 (Minn. Dist. Ct. Wright County Oct. 19, 1999).