Public Safety and the Citizen Participation Act (H.R. 4364)
The need for free speech has never been more important, particularly regarding national security issues. - The Heritage Foundation.
Strategic Lawsuits Against Public Participation, or SLAPPs, are brought not to vindicate legal rights, but to harass and intimidate, and to divert attention and resources from the underlying issue. Such lawsuits turn the justice system into a weapon, and have a serious chilling effect on free speech that is vital to the public interest.
SLAPPs about public safety and national security issues are brought with disturbing regularity, in both US and foreign courts. SLAPPs brought in foreign courts fall under the heading of “libel tourism,” which refers to the bringing of claims outside the US that would not have merit in US courts. Congress is currently debating legislation to address libel tourism, and several states have enacted legislation to protect against foreign suits brought to avoid US First Amendment protections. Domestic SLAPPs are no less pernicious. These suits are based on meritless claims, with the aim of using the expensive and time-consuming litigation process as a means of harassment and intimidation.
H.R. 4364 protects speech about public safety by:
1. Providing a procedure for quick dismissal of a SLAPP;
2. Prohibiting or limiting the expensive discovery process; and
3. Allowing a SLAPP defendant to recover fees and costs, so a concerned citizen does not bear the costs of a retaliatory lawsuit.
Silencing Speech about Public Safety
Vives v. Hull
• In 2004 Linda Hull, a concerned New Mexico parent, realized that a music teacher at her childrens' school had been convicted and registered as a child sex offender. She lobbied the school district to enact protections, including mandating that registered sex offenders be escorted on campus, and informed those in the community about Vives' past. In early 2008, Vives filed suit against Hull, alleging intentional interference with contractual relations, infliction of emotional distress, false light invasion of privacy and malicious abuse of process for alerting people to his sex-offender status. Hull filed a counterclaim in April 2008, seeking damages for malicious abuse of process, assault, intentional infliction of emotional distress, and seeking an injunction. She also filed an anti-SLAPP motion under the New Mexico anti-SLAPP law. Without analysis, the trial court held that the New Mexico anti-SLAPP law did not apply. At trial, Vives admitted he hadn’t disclosed to parents that he was a convicted sex offender when he moved to Los Alamos and began offering private music lessons in his home to teenagers. He also noted that being alone with children was a “sensitive trigger” of his “urges” to offend. On September 25, 2009, the jury deliberated for five hours before handing down a verdict that awarded damages to neither party. Hull had asked for attorney's fees, which she said at that time topped $100,000. The Citizen Participation Act would provide immunity for good-faith statements made to the government, including statements such as Hull’s lobbying of the school board. See articles about Vives v. Hull at Los Alamos Monitor News Extra and the Los Alamos Monitor Online News.
• In October 2007, Joe Kaufman, chairman of Americans Against Hate, published an article in FrontPage Magazine in which he claimed that two organizations cosponsoring a Muslim Family Day event had ties to radical Islamic groups, including Al-Qaeda. Neither of the two organizations mentioned in the article sued Kaufman. But the Islamic Society of Arlington, Texas, and several other Islamic organizations did sue him for defamation and intentional infliction of emotional distress in Texas state court, and asked the court to issue a restraining order against Kaufman. The court granted the restraining order, enjoining Kaufman from threatening or harming anyone associated with the Muslim Family Day event. Kaufman lead a peaceful protest at Muslim Family Day, and thereafter brought a motion to dismiss the case on summary judgment, which the trial court denied. The Court of Appeals reversed the trial court's denial of Kaufman's motion for summary judgment and rendered judgment in his favor. Because the groups that sued Kaufman were never actually mentioned by Kaufman, and nor could a reasonable reader who was acquainted with the plaintiffs view Kaufman’s statements as being about them, the court found that the plaintiffs had failed to state a claim as a matter of law. Because Texas does not have an anti-SLAPP statute, Kaufman was unable to recover attorney’s fees.
KinderUSA v. The Washington Institute of Near East Policy, Matthew Levitt, and Yale University Press, Case No. BC370155 (filed Apr. 26, 2007)
• In April 2007, KinderUSA demanded that Yale University Press redact statements in a book it had published by author Dr. Matthew Levitt, which describes KinderUSA as a charitable front for terror financing. Yale Press refused to redact the statements, and KinderUSA brought suit against Yale Press, Levitt and the Washington Institute for Near East Policy, alleging $500,000 in damages. Levitt and Yale Press took advantage of California’s Anti-SLAPP statute to bring a special motion to dismiss the suit, arguing that KinderUSA’s suit was a disguised attempt at wrongfully intimidating them into silence. Shortly after the anti-SLAPP motion was filed, KinderUSA dropped their lawsuit, and agreed not to bring any other legal challenges to the book, either in the US or abroad. In exchange, Levitt and Yale Press dropped their motion for fees under the anti-SLAPP law.
Davisson v. Engelke, 1997 WL 585818 (Sept. 23, 1997 Minn. App. Ct.)
• On four different occasions in early August, 1995, 81-year-old Virgil Engelke observed an unknown Caucasian male, approximately forty years of age, park his car, a blue-gray Lincoln with Iowa license plates, near his home, walk up the alley behind his house, turn into the driveway near a neighbor's fence and garage, and stand there. Engelke's neighbor was a local television anchorwoman who lived alone. On the fifth such occasion, Engelke alerted the police of this suspicious activity. On coming to investigate, the police stopped Charles Davisson and questioned him; eventually, the police brought charges of stalking against Davisson. While the criminal charges were pending, Davisson sued Engelke and his son for defamation. The trial court dismissed the case and awarded attorney fees to Engelke, stating that in eighteen years on the bench, Davisson’s lawsuit was the most “frivolous” and “baseless” lawsuit she had ever seen. The appellate court agreed that Engelke had “acted properly, as any citizen may, in calling to the attention of law enforcement suspicious conduct that he observed in his neighborhood....” and that the qualified police reporting privilege should not apply, as malice could not exist as a matter of law - Engelke hadn’t known Davisson before the incident. The court awarded trial and appellate costs and fees.
Peeler v. Baylor University, No. 10-08-00157-CV (Tex. Ct. App. Sept. 16, 2009)
• In 1993, James Peeler, a cameraman for a local news agency, went to the Branch Dividian Ranch run by David Koresh to film the planned Alcohol, Tobacco and Firearms (ATF) raid his station had been alerted to. He got lost, and ran into a taxi driver, with whom he spoke, and who turned out to be the brother of David Koresh. Peeler is the widely acknowledged source of Koresh’s knowledge of the impending raid. Ten years later, student journalists at Baylor University wrote two articles about the events at Waco, and mentioned Peeler in one of the articles. Peeler sued the student newspaper and university for defamation. The trial court dismissed the suit on summary judgment, which the appellate court upheld. Texas has no anti-SLAPP law, so Baylor was unable to recover the expenses incurred in litigating the lawsuit.
Please note: Some of the information and commentary contained in this listing are based on court filings and other informational sources that may contain unproven allegations made by the parties. The truthfulness and accuracy of such information may be in dispute.