Elections and the Citizen Participation Act (H.R. 4364)
Debate on the qualifications of candidates is at the core of our electoral process and of the First Amendment freedoms, not at the edges.– Justice Scalia in Republican Party of Minnesota v. White, 536 U.S. 765 (2002).
Speech concerning candidates for public office is core political speech, and the courts have long recognized its salience to democracy and afforded it heightened protections. Because political speech is entitled to legislative and judicial protection, lawsuits brought on the basis of political speech frequently "lose."
But SLAPPs need not “win” to operate as a means of harassment and intimidation. As a weapon against speech, even a meritless lawsuit destined to lose in court is exceedingly effective; it can take months and thousands of dollars to defend against. It can also divert public attention away from the more important policy and issue debates that should take center stage during an election.
Members of every party have been known to resort to suing, rather than speaking back, when confronted with speech they prefer not be shared. The following are examples of election-related SLAPPs:
SLAPPs Against Political Speech
Silva v. Chavez, et. al., CV-2008-08053 (N.M. Nov. 5, 2008)
• During the 2008 state legislature elections, the New Mexico based Center for Civic Policy engaged in a Legislative Accountability Project a few months before the primary election that used mailers, radio ads and phone calls to highlight and criticize lawmakers’ voting records. Ultimately, three of the legislators reviewed by the Legislative Accountability Project lost their Democratic primary battles to reform candidates. In response, those three former lawmakers sued the Center for Civic Policy and the candidates who beat them, alleging a “wide-spread conspiracy between certain nonprofit entities, their directors and the successful candidates,” to defeat the lawmakers using “fraud,” “intentional misconduct” and “other unlawful conduct.” The suit also alleged violations of federal and New Mexico tax and campaign laws, and asked in their suit that the outcome of the 2008 primary elections be voided, thereby returning them to their respective offices. The judge dismissed all of the claims against all of the parties, finding that the plaintiffs lacked standing as to some claims, had improperly named some defendants, and had failed to properly plead any claims that might actually afford them relief. The plaintiffs vowed to appeal the decision, but by the filing deadline of February of 2009 had failed to do so.
Coleman for Senate v. Al Franken, State of Minnesota OAH (Oct. 30, 2008)
• During the 2008 Minnesota Senate race between Republican Norm Coleman and Democrat Al Franken, Franken’s campaign disseminated an advertisement in which he alleged that Coleman was the “4th most corrupt” member of the Senate, based on “a bi-partisan group’s listing,” and that then Senator Coleman was living “practically rent free” in a lobbyist’s Washington, DC building. In response to these claims, Senator Coleman’s staff filed a complaint with the Minnesota Office of Administrative Hearings, alleging violations of Minnesota’s campaign laws and seeking civil and criminal penalties. The OAH allowed only one claim – that based on the assertion that Coleman was ranked 4th most corrupt by a bipartisan watchdog group - to proceed to the probable cause hearing stage. However, the claims did not make it past the probable cause hearing stage. Judge Barbara L. Neilson ruled the Franken ads were “substantially accurate, if not literally true,” and dismissed the case. As Minnesota news outlets reported, the lawsuit against Franken was the third lawsuit arising from speech that then Senator Coleman had filed against opponents in elections. September 2002 he filed a complaint against opponent Senator Paul Wellstone. The Associated Press reported, claiming that Wellstone’s campaign had illegally distorted Coleman’s position on Social Security. In 1998, Senator Coleman filed complaints against Hubert H. Humphrey III in the race for Minnesota governor over his position on family farms. He said Humphrey and DFL party Chairman Dick Senese violated the state’s Fair Campaign Practices Act in several ads and statements that portray Coleman as an enemy of family farmers based on comments he made at a candidate forum.
Mallozzi v. Suhrada (N.Y. Nov. 2008).
• In 2006, local Democratic candidate Christine Mallozzi-Chiaravalle’s two brothers sued Republican candidates Joe Suhrada and William Sherman for defamation based upon campaign assertions of corruption, improper influence, and receiving free mulch. In November 2008, the state trial court judge dismissed the suit, indicating that the statements made in the Republican campaign literature were largely supported by underlying facts, and said that “it is well settled that statements made during the course of a political campaign are accorded qualified privilege.” Thus Suhrada and Sherman were protected from liability because the Mallozis could not “establish by clear and convincing evidence either constitutional malice … or common law malice.” The judge also ruled that, under New York’s anti-SLAPP law, Suhrada and Sherman were entitled to collect attorneys’ fees, which the men say topped $80 thousand.
The Citizen Participation Act would protect against SLAPPs by:
1. Providing a procedure for quick dismissal, and limiting or prohibiting discovery in suit; and
2. Providing for attorney’s fees and costs for a defendant who successfully has the case dismissed.