SLAPP Suit (Strategic Law Suit Against Public Participation):
Here's one we found at http://www.alternet.org/story/24293/:
Free Speech: Going, Going ...
By Molly Ivins, AlterNet. Posted August 19, 2005.
Corporations' efforts to curb free speech through lawsuits are unfortunately succeeding. Tools
Eternal vigilance is the price of ... um, well, guess we can't say that anymore. We might get sued.
Mostly when we think of threats to free speech, it's government actions or laws we have in mind -- the usual bizarre stuff like veggie libel laws or attempts to keep government actions or meetings secret from the public.
Sometimes you get a political case, like then-Gov. George W. Bush's effort to stop a Bush-parody site on the Internet. The parody, run by a 29-year-old computer programmer in Boston named Zack Exley, annoyed Bush so much that he called Exley "a garbageman" and said, "There ought to be limits to freedom." (That's not a parody -- he actually said that.)
Bush's lawyers warned Exley that he faced a lawsuit. Then they filed a complaint with the Federal Elections Commission demanding that Exley be forced to register his parody site with the FEC and have it regulated as a political committee.
This fits in with the four instances in which faculty members at the Bush School of Government and Public Service in our fair state were reprimanded at the behest of Bush associates for saying less-than-glowing things about our then-governor.
But this is petty stuff compared to corporate efforts to curb free speech.
SLAPP suits (for "strategic lawsuits against public participation") are a serious menace to free speech. The latest example is a real prize: The Consumers Union, publisher of Consumer Reports, has already spent $10 million defending itself against a lawsuit filed by Isuzu Motors Ltd. because, eight years earlier, Consumer Reports rated the Isuzu Trooper "not acceptable" for safety reasons. And the case has not yet reached trial.
And that is the real menace of SLAPP suits. It's not that corporations win them, but that they cost critics so much money that the critics are silenced -- and so is everyone else who even thinks about raising some question about a corporate product or practice.
Isuzu claims that CU's reports are "not scientific or credible," but the company's internal memos state that the "lawsuit is a PR tool" and "when attacked, CU will probably shut up." According to a study by two University of Denver law professors, "Americans by the thousands are being sued, simply for exercising the right to speak out on public issues, such as health and safety."
New York Supreme Court Judge J. Nicholas Cobella told PR Watch in Madison, Wis.: "The longer the litigation can be stretched out ... the closer the SLAPP filer moves to success. Those who lack the financial resources and emotional stamina to play out the 'game' face the difficult choice of defaulting despite meritorious defenses or being brought to their knees to settle. ... Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined."
PR Watch also quoted George Pring and Penelope Canan, authors of the 1996 book "SLAPPs: Getting Sued for Speaking Out."
"Initially, we saw such suits as attacks on traditional 'free speech' and regarded them as just 'intimidation lawsuits,'" the two authors say. "As we studied them further, an even more significant linkage emerged: The defendants had been speaking out in government hearings, to government officials or about government actions. ... This was not just free speech under attack. It was that other and older and even more central part of our Constitution: the right to petition government for redress of grievances, the 'Petition Clause' of the First Amendment."
Some examples of SLAPP suits from PR Watch:
* In Las Vegas, a local doctor was sued for his allegation that a city hospital violated the state's cost-containment law.
* In Baltimore, members of a community group faced a $252 million lawsuit after circulating a letter questioning the property-buying practices of a local housing developer.
* In West Virginia, an environmental activist was sued for $200,000 for criticizing a coal-mining company for activities that were poisoning a local river.
* In Pennsylvania, a farmer was sued after testifying to his township supervisors that a low-flying helicopter owned by a local landfill operator caused a stampede that killed several of his cows.
* In Washington state, a homeowner found that she couldn't get a mortgage because her real-estate company had failed to pay taxes owed on her house. She uncovered hundreds of similar cases, and the company was forced to pay hundreds of thousands of dollars in back taxes. In retaliation, it sued the woman for slander and dragged her through six years of legal harassment before a jury found her innocent.
* In Missouri, a high-school English teacher was sued for $1 million after complaining to a weekly newspaper that an incinerator burning hospital waste was a health hazard.
Unlike the average citizen, Consumers Union has the resources to defend itself against the Isuzu suit. It's a nonprofit organization, and Consumer Reports accepts no advertising, lest there be any appearance of bias, and never grants permission for any commercial use of its name or test results.
It accepts no contributions from corporations or law firms or even individuals if the check bears a business imprint. The 60-year-old magazine is supported by the generations of smart consumers who always consult Consumer Reports before making any major purchases.
As we have seen with tort deform, it is not difficult to close off access to the courts for certain kinds of lawsuits. I can't think of a more meritorious and constitutional cause.
Molly Ivins writes about politics, Texas and other bizarre happenings.
*************
Let us know how you feel about SLAPP suits against Sienna homeowners (by Johnson Development Co.) in the following thread. . . .
-see case number ase no. 05-CV-144185
posted by responsible_dvlpmnt at Thursday, October 13, 2005
32 Comments:
I think the judge's statements below are very telling and something we should all be concerned about.
"New York Supreme Court Judge J. Nicholas Cobella told PR Watch in Madison, Wis.: "The longer the litigation can be stretched out ... the closer the SLAPP filer moves to success. Those who lack the financial resources and emotional stamina to play out the 'game' face the difficult choice of defaulting despite meritorious defenses or being brought to their knees to settle. ... Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined."
Look at this one from http://www.faulkingtruth.com/Articles/GlobalWarning/1026.html :
- Mar 1, 2005
- Have You Been SLAPPed Lately?
by Robin Buckallew
In recent months, we have heard a great deal from the Bush administration and the mainstream media about the stifling effect of trivial lawsuits on industry in this country. The trivial lawsuit is blamed for everything from high malpractice insurance rates to the high price of lawyers. We have been informed that without immediate tort reform the entire economy will go into a nosedive as litigious Americans sue for silly things - like being killed by boxes crashing on their heads at Home Depot, for instance. Pretty trivial to complain about a thing like that. In addition, we have heard a great deal of wailing and gnashing of teeth over the so-called "activist judges" that are making law in the courts of the land. This, too, is something that needs immediate remediation in order to preserve the law and the dignity of the land. Although I really hate to agree with the Bush administration on anything, I will agree that there is definitely a trend toward the filing of trivial lawsuits that could destroy the very fabric of our society if this is allowed to continue. But, contrary to the presentation in the popular media, these lawsuits aren't being filed by common folks like you and I, seeking to get a bigger piece of the pie by unjustly accusing some poor, honest hard-working corporation of malfeasance. No, those cases are relatively few and far between. The lawsuits I am speaking of are being filed not by you and me, but against you and me. They are being filed by the very corporations that are sounding the alarm. While the lawsuits being filed might seem trivial on the surface, the intent and the effect is far from trivial. The purpose is nothing other than a stifling of the voices of Americans speaking out for safer food, cleaner water, fresher air. This particularly perfidious type of lawsuit is known as a SLAPP (Strategic Lawsuits Against Public Participation). And all across the country, more and more people are reeling in surprise and astonishment as they find themselves getting SLAPPed simply for exercising a right they have taken for granted.
The principle behind a SLAPP is simple. These are lawsuits that are being filed when citizens attend public meetings and speak out on their own behalf against corporate polluters. They are being filed when people publish some criticism of an industry. There are whole books and websites devoted to how to file SLAPPs (also the same on how to protect yourself against SLAPPs). As the general public has become more aware of such issues as air and water pollution, food contamination, and other ways in which they are being subjected to poisons not of their choosing, they have been showing up at public hearings for corporate permits. They have been filing class action suits against large offenders. They have been publishing articles and books and staging protests and marches. In short, America is fighting back. And when America began to fight back, the free market fundamentalists discovered something frightening - in a truly free market, where people are truly free to choose and have information about the products they are selecting, profits can begin to suffer. When a small group of your neighbors show up at the Chamber of Commerce meeting or the City Council to protest some previously obscure pollutant being dumped in your community, suddenly you become aware. You might change your buying habits. You might even join the protests yourself. And then, profits suffer. Corporations felt like they'd been slapped in the face. So, they began to SLAPP back.
Are you aware that when a company is issued a permit to release large amounts of pollutants in your air or water, this permit requires a public hearing? You are entitled to attend, to speak your mind. You can read the proposed permit in advance on the web. You can study up on the pollutants of interest, find out what they might do to you, your young children, or your aged parents - not to mention your cat, your dog, or your parakeet. You can attend the meeting and speak your mind. You can send your comments in writing to the agency in charge of issuing the permit. Now, however, there is one catch. If you should do such a thing, it is possible that the corporation in question will slap you with a lawsuit, charging you with defamation. Did you stand up last week in the City Council and say you don't want arsenic dumped in your local stream? You might be SLAPPed. Did you write a letter to the local newspaper protesting the building of a toxic waste dump outside of town? You might be SLAPPed. Wait a minute, I hear you howling. Isn't it my right to speak up? Isn't it my right to state my opinion? Absolutely. You are totally, legally and firmly within your right. The corporation is almost sure not to win such a suit. And they know it. But they also know something else - very few ordinary citizens have the resources available to fight such a charge in court. Just to sort through the legal tangle they will put you in could eradicate your retirement savings. Your family could end up bankrupt. You could find yourself emptying your children's college fund. You might eventually win, if you ever get to court. But the win will be an empty one - as empty as your bank account.
The real purpose behind SLAPPs is not to win a judgment against you. The real purpose is to establish a high profile of expensive cases and bankrupt citizen activists to chill the climate of dissent. You aren't really the target - the real target is your neighbor, who hasn't spoken up yet. And after watching your nightmare, probably never will. I call to the witness stand one high profile case in this genre -Texas Cattlemen vs. Oprah Winfrey. Once upon a time, back in 1996, following a show on Mad Cow Disease, Oprah spontaneously exclaimed that her hamburger eating days were over. The cattle industry was quite enraged by this - especially since the price bottomed out on beef the very next day (is Oprah that powerful? WOW! I think I want to be her - when Oprah talks, people listen). Unfortunately for Oprah, Texas (as well as 12 other states) has a law against food defamation. Yes, you can be charged with a crime in Texas courts for daring to criticize your veggies for not being fresh enough, for noticing that your fish tastes, well, fishy - or for mocking your burger. The case went to court. Oprah won. The cattlemen appealed. Oprah won again. They appealed again. Oprah won again. The courts have finally heard this all the way to the top court possible (the decision in the federal court of appeals finalized it and kept it from being eligible for Supreme Court intervention). Oprah won. She can choose to eschew hamburgers publicly if she so chooses. Good, you say, that means we're fine. Yes, in a sense. If you have the millions Oprah has, you're fine. The case cost Oprah a larger fortune than most of us will ever see in our lifetime. And the win by Oprah hasn't slowed down the SLAPPs at all. The companies know that very few of us possess even a fraction of the resources of America's talk show queen. If you can get the case to court, they know you will probably win. But they are also aware that you probably will never go to court, after they bankrupt you by drowning you and your lawyers in a sea of paper - you'll settle. You'll shut up. You'll go to your corner, sit in time out and be quiet - forever. Not only that, your neighbors will join you.
There are a couple of other legal maneuvers that the large corporations that run America have been making recently. One of these involves the Bill of Rights. You heard me, the Bill of Rights. Our Bill of Rights, designed to protect us from the whims of unscrupulous governments and those who would stifle us. This particular legal maneuver is directed not at the average citizens, but at the regulations that protect them. The Fifth Amendment of the Bill of Rights contains a clause that states "nor shall private property be taken for public use, without just compensation". This is commonly referred to as the "takings" clause. Most of us are aware of this clause only when eminent domain kicks in, and the city decides they want our property for some government building or a parking lot of some sort. Then, we know that they have to pay us a fair price for it. Now, the courts are being asked by some of the largest polluters in the country to interpret that clause in a very broad way. They are being asked to interpret that clause as meaning that anytime the government passes an environmental regulation designed to protect our air, water or food from contamination, the corporations that are affected by the regulation must be compensated for any potential lost profits that come from complying with the regulation. In short, they must be compensated for behaving like a good citizen. Overall, the corporations expect this interpretation to have a chilling effect on environmental regulations, safety regulations, labor laws, and a myriad of other rulings that might eventually come into play. You want us to dump our hazardous waste safely and legally? It'll cost you. You want us to clean up our smokestacks? It'll cost you. You want ergonomics regulations so people don't have repetitive motion injuries? It'll cost you. The possibilities are endless. You want us to pay a minimum wage? It'll cost you. Eventually, the government will quit passing any regulations to protect the consumer, because the government will not be able to pay compensation in all the "takings" claims that are being filed. On this issue, my friends, the courts are playing ball. There have been several decisions handed down that indicate the courts are willing to interpret this clause in exactly this way. So now, an amendment designed to protect you from the government simply moving in and taking your property away is going to be used to prevent the government from protecting you from someone taking your life and health away. I can almost hear the Founding Fathers weeping.
So, how do we fight against all this legal mumbo-jumbo being thrown at us by the giants of industry? The pollutocrats? Easy - file class action lawsuits. It is the only way an ordinary citizen can possibly afford to challenge these behemoths. By joining together into a large mass of humanity that have all been injured, and pooling our resources, hiring teams of lawyers to go against their teams of lawyers, and paying only a portion of the overall cost. Share the burden. There's only one problem with that. A new bill being considered in Congress would take away our ability to file class action lawsuits. Technically, we would still have the right. But the bill would move class action suits to federal courts. In federal courts, the judges are unwilling to hear class action suits where the plaintiffs are from several states (as they nearly always are), because of the problem with applying the laws of any single state. Also, the federal docket is extremely overfilled already. The best you could expect would be an extremely long delay as the wheels of justice failed to turn for you. In reality, the corporations figure that most class action lawsuits would be summarily dismissed by the federal judges. That is what usually happens with cases of this nature in federal courts. This, coupled with the tort reform that would cap punitive damages, means that the corporations would be able to get away scot-free with nearly any nasty action they care to perpetrate on the American public. In recent years, many battles for environmental protection have been won in the court system. Many of our rights to clean air, water and food have been protected by the courts. We have had to fight these battles one at a time, case by case, and have won many victories. Without class action lawsuits, many of these regulatory cases would never have been brought before the court at all.
Back in 1941, in a Sam Spade movie (The Maltese Falcon), Humphrey Bogart told Peter Lorre, "When you're slapped, you'll take it and like it". These large corporations expect us to take it - they don't really care if we like it. Our only recourse is to keep on standing up. Keep on fighting back. We need to stand behind our neighbors when they get SLAPPed. We need to realize that if America were to mobilize in force, stand up for environmental protections and regulations, let corporate America know that we insist on clean air, clean water, safe food - well, would it be possible for them to SLAPP all 300 million of us? It's time to slap back.
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"would it be possible for them to SLAPP all 300 million of us? It's time to slap back."
It is time for the ants to turn on the grasshoppers! How much money would it save if we all got more involved in local elections and took seats away from those yielding the power and influence in our community?
This is on FortBendNow.com. You all may want to contact Healy's office and find out if this has been going on for more years than mentioned in the article and if more people (current and former employees, managers, etc.) were involved. This doesn't feel right:
ECO Resources Discovers Employee Ran MUD Billing Scam
by Bob Dunn, Oct 12, 03:03 pm
Several local municipal utility districts have been bilked of thousands of dollars in a billing scam allegedly run by a former ECO Resources Inc. employee.
Sugar Land-based ECO Resources manages and operates MUDs. About a month ago, two company managers discovered what they believed was a billing scheme involving “less than 10” local MUDS, Fort Bend County Judge Bob Hebert said Wednesday.
The managers asked for Hebert’s advice in handling the situation. Hebert, who founded ECO Resources, was its chief executive officer for 13 years and still is under contract as a consultant. The company now is owned by Southwest Water Co.
“My recommendation was that they go immediately to the attorneys involved (at the MUDs), and then to the boards involved,” Hebert said.
Jim Brown, regional vice president for Southwest Water’s Houston Regional Services Group, was one of the managers who discovered the scheme. He said ECO Resources still is conducting an internal investigation and forensic audit in an attempt to determine the scope of the scam.
Neither Brown nor Hebert knew how much money was taken in total, since the audit still is ongoing. However, Hebert estimated it was at least $145,000 and will wind up being “probably in the low six figures.”
He said the employee believed to be involved in the scam was immediately fired, and “the loopholes the employee was using were closed.”
Fort Bend County District Attorney John Healey said company officials met with him, and are expected to provide him with the results of their internal investigation. “In all likelihood, we will make a referral” to a police agency to complete an investigation.
“At this point, it looks very obvious it was only an individual act,” Brown said, although nothing is being ruled out.
“It’s a terrible event,” Hebert said. “The employee was a very trusted manager. You’re just crushed.”
“We were as shocked as anyone,” said Brown.
Brown and Hebert said all MUDs that lost money will be fully reimbursed and paid interest on their losses.
This doesn't prove anything.
I think it's just a news article that was posted for comment. IMHO it is just scratching the surface of something that could shake county government up. Nothing like shining the light on things! Good job Bob Dunn!
This is very interesting reading but does it apply in TX?
"Initially, we saw such suits as attacks on traditional 'free speech' and regarded them as just 'intimidation lawsuits,'" the two authors say. "As we studied them further, an even more significant linkage emerged: The defendants had been speaking out in government hearings, to government officials or about government actions. ... This was not just free speech under attack. It was that other and older and even more central part of our Constitution: the right to petition government for redress of grievances, the 'Petition Clause' of the First Amendment."
Why wouldn't the U.S. constitution apply in Texas?
This comment has been removed by a blog administrator.
Here's the Sun's slant on that earlier story on the ECO scandal. I wonder what the total will end up being and why there is only 1 suspect so far?
Here's the story:
"Water company launches probe into embezzlement
By:SESHADRI KUMAR 10/10/2005
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An alleged financial embezzlement scheme by an employee of ECO Resources in Sugar Land, the water and wastewater operation and maintenance company, has resulted in incorrect billing" to the tune of thousands of dollars and at least seven municipal utility districts in Fort Bend and Harris counties have been affected.
One of the victims in this case is believed to be Harris County MUD # 165, with an estimated billing error of $145,000, while in other cases the amount ranges from a couple of thousand dollars to $10,000 or more.
Lynn Humphries, attorney for Harris County MUD#165 says ECO Resources officials have themselves alerted the district to the potential problem and has promised total restitution of the amount with interest.
The company is conducting a forensic audit to determine the extent of financial irregularity that had occurred and at this stage, nothing more is known, Humphries says.
Maria S. Parker, attorney for the Blue Ridge West MUD in Missouri City says her district is said to have been improperly billed for about $9,200, according to preliminary estimates made by ECO Resources. The MUD district is waiting for ECO Resources to complete its audit and will then decide the course of action.
James Murdaugh, attorney for Harris County MUD#118 says his district's estimated incorrect billing is less than $2,000. Murdaugh also says that ECO Resources itself found out the problem and informed the MUD.
First Colony MUD # 9 in Missouri City is believed to have been incorrectly charged to the extent of about $10,000. John Wallace, attorney for the district, confirms that ECO Resources officials have met with him and the MUD board plans to launch its own audit of the bills it received from ECO Resources.
Fort Bend County Judge Bob Hebert, who is a consultant to ECO Resources, says that he is aware of the issue.
"I have assisted ECO Resources early on in explaining the position and the facts as they know them to the attorneys of various MUDs," Hebert says.
Based on his knowledge of what transpired and the feedback he got from the MUDs, Hebert says the company took appropriate steps to inform its clients and promised to restitute the money.
"It is a sad situation to go through, but I am pleased with the way it has been handled," Hebert says.
Jim Brown, regional vice president of ECO Resources for the Houston region, says he cannot comment much because an investigation is in progress.
"We have a very high code of ethics. We have taken the high road. We feel violated as our customers are. We moved quickly and talked to the districts and did everything we can. We had a very good response from the customers."
The whole issue came to light about four weeks ago.
As promised, ECO Reso-urces has already cut a check to the Harris County MUD#165 toward the initial estimated loss, pending a final settlement, Brown says.
Brown also says the matter has been brought to the attention of Fort Bend County District Attorney John Healey for potential criminal investigation. The employee allegedly involved in the case has been fired, Brown says.
Healey says ECO Resources officials had consulted him over a matter that is being investigated by the company itself and when they get all the information, it will be reviewed and forwarded to a suitable criminal investigation agency. "
©Houston Community Newspapers Online 2005
That ethics comment must be the government template for local politicians.
This just came in:
Ms. Hermer, one of the lawyers defending homeowners in the Johnson Development case (SLAPP suit) against some of their own residents, has filed an appeal within the Texas court system seeking greater protection of the websites. This appeal should be heard next week and may have serious implications on this case and protections offered to Sienna Plantation residents who participated on MissouriCityTalk.com and SiennaTalk.com during the petition drive to stop apartments here in Sienna and Missouri City, TX.
Stay tuned for more as it becomes available. . .
Good luck on the appeal you all.
"As we have seen with tort deform, it is not difficult to close off access to the courts for certain kinds of lawsuits. I can't think of a more meritorious and constitutional cause. "
I couldn't agree more.
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Here is an interesting article on this corporate court tactic:
SLAPP
This article was first published as "SLAPP Happy: Corporations That Sue to Shut You Up" in PR Watch, Volume 4, No. 3, 2nd Quarter 1997. It original article was authored by John C. Stauber and Sheldon Rampton and is used here with permission. As with all SourceWatch articles, feel free to edit and revise.
Corporate censors
The corporate technique of suing people into silence and submission has become so popular that it even carries its own cute nickname in legal circles. Such lawsuits are known in lawyer lingo as "SLAPP suits," an acronym for "strategic lawsuits against public participation." They are, in effect, fines imposed on opponents of those who can afford to use them.
"Thousands of SLAPPs have been filed in the last two decades, tens of thousands of Americans have been SLAPPed, and still more have been muted or silenced by the threat," write law professors George Pring and Penelope Canan in their 1996 book, SLAPPs: Getting Sued for Speaking Out.
In their investigation of the trend, Pring and Canan found that "filers of SLAPPs rarely win in court yet often 'win' in the real world, achieving their political agendas. We found that SLAPP targets who fight back seldom lose in court yet are frequently devastated and depoliticized and discourage others from speaking out--'chilled' in the parlance of First Amendment commentary."
SLAPP suits achieve their objectives by forcing defendants to spend huge amounts of time and money defending themselves in court.
"The longer the litigation can be stretched out . . . the closer the SLAPP filer moves to success," observes New York Supreme Court Judge J. Nicholas Colabella. "Those who lack the financial resources and emotional stamina to play out the 'game' face the difficult choice of defaulting despite meritorious defenses or being brought to their knees to settle. . . . Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined."
"Initially we saw such suits as attacks on traditional 'free speech' and regarded them as just 'intimidation lawsuits,' " Pring and Canan state. "As we studied them further, an even more significant linkage emerged: the defendants had been speaking out in government hearings, to government officials, or about government actions. . . . This was not just free speech under attack. It was that other and older and even more central part of our Constitution: the right to petition government for a redress of grievances, the 'Petition Clause' of the First Amendment."
SLAPP suits threaten the very foundation of citizen involvement and public participation in democracy. "Americans by the thousands are being sued, simply for exercising one of our most cherished rights: the right to communicate our views to our government officials, to 'speak out' on public issue," state Pring and Canan. "Today, you and your friends, neighbors, co-workers, community leaders, and clients can be sued for millions of dollars just for telling the government what you think, want, or believe in. Both individuals and groups are now being routinely sued in multimillion-dollar damage actions for such 'all-American' political activities as circulating a petition, writing a letter to the editor, testifying at a public hearing, reporting violations of law, lobbying for legislation, peaceful demonstrating, or otherwise attempting to influence government action."
[edit]
SLAPPed Into Submission
Corporate libel lawsuits bring the formidable powers of government and industry together for the purpose of suppressing the views of people with complaints against the system. Ironically, the PR industry is eagerly hyping these lawsuits as populist solutions to the problem of too much government.
Tom Holt, a Washington policy wonk whose life reflects in microcosm the pattern of collusion that unites government and industry interests, epitomizes the contradictions and hypocrisy inherent in this position.
Holt began his career after receiving training at the Morton Blackwell Leadership Institute, a corporate-funded school which teaches conservative college students how to start their own campus newspapers to compete against perceived liberal bias in schools' official newspapers. Following a brief stint with the Richmond, Virginia Times-Dispatch, he became "research director" for the Commonwealth Foundation, helping churn out a study which argued that lawsuits against the tobacco industry did more harm than good, creating a "litigation superhighway where lawyers are the ones who will make the most money."
After serving as a speechwriter for two US secretaries of transportation, Holt went to work as a public-relations staffer for the right-wing Heritage Foundation before signing on at another right-wing Washington think-tank called the Capital Research Center. As a CRC "visiting fellow," he authored a book titled The Rise of the Nanny State: How Consumer Advocates Try to Run Our Lives, which accused the consumer movement of "capitalizing on the public's ignorance of science and the media's eagerness for calamity."
According to Holt, reforms are necessary to make it harder to sue corporations because "the consumer movement has imposed significant costs on industry--costs ultimately passed on to consumers--and has violated individual freedoms in a futile effort to protect us from our own actions and judgment."
In order to restore those freedoms, Holt is now calling for new laws so that corporations can use the nanny state more effectively to sue, chastise and punish their enemies. "Could lawsuits be the cure for junk science?" he asked in a 1995 issue of Priorities, the monthly publication of Elizabeth Whelan's corporate-funded right-wing advocacy group, the American Council on Science and Health.
[edit]
Power to the Plaintiffs
Holt complained that current libel law "has been a major stumbling block to the progress of a lawsuit brought by the Washington Apple Growers against the National Resources Defense Council, perpetrators of the Alar scare. The growers initially filed suit in Yakima County (WA) Superior Court; but . . . the growers lost their case." (See our related story about the Alar case on page 10.) Fortunately, he added, "agribusiness is now fighting back, shepherding what are known as 'agricultural product disparagement laws' through state legislatures. . . . On the national level, the National Association of State Departments of Agriculture wants similar provisions to be included in the 1995 farm bill."
The drive has been spearheaded by the nonprofit, tax-exempt Animal Industry Foundation (AIF), which calls itself "animal agriculture's collective voice on food animal production, its effect on diet and environment, and its contributions to our quality of life."
AIF's corporate funders include the powerhouse Burson-Marsteller and Hill & Knowlton PR firms. Its trustees include a who's-who list of meat industry lobby and trade associations: the American Farm Bureau Federation, American Feed Industry Association, American Sheep Industry, American Society of Animal Science, American Veal Association., National Broiler Council, National Cattlemen's Beef Association, National Milk Producers Federation, National Pork Producers Council, National Turkey Federation, Southeastern Poultry & Egg Association and United Egg Producers.
"The model for these statutes was developed by the American Feed Industry Association," boasts an AIF newsletter. "If you'd like a copy of the model state legislation, please contact in writing Steve Kopperud at AFIA." AIF in fact shares the same address, phone and staff as AFIA--the American Feed Industry Association, a "national trade association representing the manufacturers of more than 70 percent of the primary formula livestock and poultry feed sold annually."
In a letter to Consumer Reports, Kopperud has defended the industry's rationale behind food disparagement laws, claiming that they "do not repress free speech, but rather compel a speaker to think twice about opportunistic or false statements and the damage such rhetoric can do. . . . Food disparagement laws, as tools to make more honest our national discussion of food safety, are the ultimate consumer protection."
The AIF speaks more bluntly in literature aimed at farmers: "Animal rights activists . . . threaten the survival of today's farmers and ranchers. . . . It's time to fight back! . . . through advertising, elementary school programs, publications and videos, news media outreach and public opinion research."
Rather than push for legislation at the national level, the food industry has worked quietly state-by-state while avoiding a controversial national debate. So far, thirteen state legislatures have approved product disparagement laws--Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota, and Texas. Other states are considering similar measures.
[edit]
Profits Before People
Nicknamed in the news media as "banana laws" or "broccoli bills," agricultural product disparagement laws are designed to give even more power to SLAPP suits by rewriting the rules of evidence so that the food industry will have a better chance of winning in court.
The new legislation is designed specifically and expressly for the purpose of protecting industry profits by preventing people from expressing opinions that might discourage consumers from buying particular foods.
"An anti-disparagement law is needed because of incidents such as the Alar scare several years ago," argued the Ohio Farm Bureau in lobbying for the new law. "Apple producers suffered substantial financial losses when people stopped eating apples because of reports that Alar, a pesticide which can lawfully be used on apples, would cause serious heath problems. These reports were later proven to be false, but the damage had been done."
The penalties for food disparagement vary from state to state. In Idaho, defendants can be required to pay a penalty equal to the plaintiff's claimed financial damages. In Texas, the penalty is three times the damages. In Colorado, the legislation included provisions for actual jail time of up to a year.
According to Holt, the new laws place "the onus on the disparaging activist, rather than under liability law, which would place the onus on the grower or manufacturer of the disparaged product."
Shifting the onus means that instead of corporations being forced to prove their critics are wrong, food critics can be judged guilty unless they can prove that what they have said is correct.
"That type of speech, I don't feel needs to be protected," argues Kansas cattle rancher Jim Sartwelle. "It's important to have some sort of backstop in place to penalize people for making unsubstantiated comments."
[edit]
Truth in the Eye of the Beholder
The problem, of course, is that no one except God can consistently and correctly distinguish between "correct" and "incorrect" views. "Who knows what the hell that is?" asks Tom Newton of the California Newspaper Publishers Association. "Scientists say there is no such thing as reliable scientific fact, that science is based on hypothesis and conclusions, and is ever-changing."
"If I say that hogs kept in confinement are being cruelly treated, am I making a mistake of fact?" asks farmer and Illinois law professor Eric Freyfogle, explaining his opposition to the legislation. "Indeed, I am not. What I'm talking about is a matter of ethics. I may view as unethical behavior that which someone else finds entirely reasonable. But that's the great benefit of a democracy based on free speech--we can air our differences in public, without worrying about the speech-police coming to arrest us."
"Agricultural disparagement statutes represent a legislative attempt to insulate an economic sector from criticism, and, in this respect, they may be strikingly successful in chilling the speech of anyone concerned about the food we eat," observes David Bederman, Associate Professor of Law at Emory University Law School. "The freedom of speech, always precious, becomes ever more so as the agricultural industries use previously untried methods as varied as exotic pesticides, growth hormones, radiation, and genetic engineering on our food supply. Scientists and consumer advocates must be able to express their legitimate concerns. The agricultural disparagement statutes quell just that type of speech. At bottom, any restriction on speech about the quality and safety of our food is dangerous, undemocratic, and unconstitutional."
Even though disparagement laws present a chilling threat to journalists, actual press coverage of new laws has been scant, tending to trivialize the issues with light-hearted commentary about "veggie hate crimes" or humorous wordplay. "Mind how you disparage asparagus or berate broccoli," advised the headline in the Los Angeles Times. "Don't bad-mouth that Brussel sprout. It could cost you," quipped USA Today.
[edit]
Some US Examples of Corporate Censorship Lawsuits
In Las Vegas, a local doctor was sued over his allegations that a city hospital violated the state's hospital cost containment law.
In Baltimore, members of a local community group faced a $52 million lawsuit after circulating a letter questioning the property-buying practices of a local housing developer.
In West Virginia, an environmental activist faced a $200,000 lawsuit for criticizing a coal mining company's activities that were poisoning a local river.
In Pennsylvania, a farmer was sued after testifying to his township supervisors that a low-flying helicopter owned by a local landfill operator caused a stampede that killed several of his cows.
In Washington state, a homeowner found that she couldn't get a mortgage because her real estate company had failed to pay taxes owed on her house. She uncovered hundreds of similar cases, and the company was forced to pay hundreds of thousands of dollars in back taxes. In retaliation, it dragged her through six years of legal harassment before a jury finally found her innocent of slander.
In Rhode Island, a resident of North Kingstown wrote a letter complaining about contamination of the local drinking water from a nearby landfill and spent the next five years defending herself against the landfill owner's attorneys, who charged her with "defamation" and "interference with prospective business contracts."
In South Carolina, an animal rights activist was sued for $4 million after writing a letter to an obscure research journal protesting an Austrian company's plans to use chimpanzees in hepatitis research.
In Missouri, a high school English teacher was hit with a $1 million libel suit after complaining to a weekly newspaper that an incerator burning hospital waste was a health hazard.
Journalist Molly Ivins cites the experience of Consumers Union, publisher of Consumer Reports, which "has already spent $10 million defending itself against a lawsuit filed by Isuzu Motors Ltd. because, eight years earlier, Consumer Reports rated the Isuzu Trooper 'not acceptable' for safety reasons. And the case has not yet reached trial. And that is the real menace of SLAPP suits. It's not that corporations win them, but that they cost critics so much money that the critics are silenced -- and so is everyone else who even thinks about raising some question about a corporate product or practice." [1]
[edit]
Some International Examples of Corporate Censorship Lawsuits
In August 2005 an application by a New Zealand government-owned coal mining company, Solid Energy, for $NZ379,342 in witness costs and legal expenses against two environmental groups has been dismissed. Forest and Bird and the Buller Conservation Group (BCG) had argued before the Environment Court against approval for a new open-cut coal mine. While the Court approved the project, it dismissed the company's costs claim. Forest and Bird's Regional Conservation Officer, Eugenie Sage, said the company "was trying to punish Forest and Bird and BCG for daring to oppose the mine. This was clearly a strategic law suit against public participation SLAPP." [2]
[edit]
Books
George Pring and Penelope Canan, SLAPPs: Getting Sued for Speaking Out, Temple University Press, January 1996. ISBN 1-56639-369-8 (Paperback) ISBN 1-56639-368-X (Hardcover).
[edit]
Websites on SLAPPs
First Amendment Center, The Anti-SLAPP Resource Center
California Anti-SLAPP project, California Anti-SLAPP Project
[edit]
Other SourceWatch resources
McDonald's, McLibel
Prof. Juan Cole's experience with a threatened SLAPP by MEMRI.
Gunns 20
[edit]
External links
John C. Stauber and Sheldon Rampton, "SLAPP Happy: Corporations That Sue to Shut You Up," PR Watch, Volume 4, No. 3, 2nd Quarter 1997.
Molly Ivins, "Free Speech: Going, Going ...: Corporations' efforts to curb free speech through lawsuits are unfortunately succeeding", AlterNet, August 19, 2005.
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