“There ought to be a law,” is not a phrase that slips easily from my keyboard. Generally, I think there are far too many laws and, particularly, too many new laws. Old laws that have long outlived any usefulness are too seldom revisited and removed from the statute books. At the rate we add new laws, one would have to conclude that the human condition has been on a geometrically accelerating downward spiral since the founding of our Republic. I will, however, allow for an exception in the case of a law we do need; its purpose is to prevent public officials from intimidating the public they are supposed to serve by filing abusive lawsuits, against them.
These sorts of lawsuits are aptly named “SLAPP” suits, an acronym that stands for “Strategic Lawsuit Against Public Participation.” The term was coined by two University of Denver professors, Penelope Canan and George W. Pring, in the 1980’s to refer to abuse of civil process to discourage citizens from exercising their right to petition the government for a redress of grievances. That is, of course, a fundamental right protected by the First Amendment to the U.S. Constitution.
As one court has described it, “SLAPP suits are a response by detrimentally affected parties to the activities of citizens who petition the government. SLAPPs are intended to silence those citizens. In doing so, SLAPPs effectively deny vocal citizens their constitutional right to petition the government.” Baker v. Parsons, 750 N.E.2d 953, n. 12 (Mass. 2001).
I first wrote about this subject in the Jefferson Policy Journal for February 11, 2011, in a short piece called, “Man Bites Dog: Public Official Sues Taxpayers” (here). That posting told of one such SLAPP brought by Tom Clinton, the Falls Church Commissioner of the Revenue against a group of citizens who had written to him asking him to refund certain water utility charges that had been held to be an unconstitutional tax by the Fairfax Circuit Court. Specifically, they requested that he exercise the powers of his office under a statute authorizing him to apply to court to obtain relief on their behalf.
Rather than declining their request, Mr. Clinton actually started his own suit against these same citizens. Public officials have, by virtue of their offices, virtually unlimited access to legal services at public expense. Ordinary citizens do not. For an ordinary citizen, being sued by a public official for having communicated with the government or spoken out on an issue of public interest or concern is an extremely burdensome and intimidating fate.
While the public official pursues his suit through the use of the resources of his office, the citizen must seek and obtain legal representation on his own. This in itself can be a daunting experience.
Then, at his own expense, he or she must retain a lawyer, most likely pay for the lawyer, not to mention possible court costs, photocopying services, postage, delivery services, telephone, expert witness fees, deposition fees, travel and transportation, and other costs. The citizen faced with such a suit will also have to spend considerable time, not only conferring with the lawyer, but also in responding to discovery requests, which can include searching for and providing documents, responding to detailedinterrogatories and participating in depositions. All simply because that citizen had the effrontery to communicate with a government official in connection with that official’s duties. All the while, for the public official, proceeding at public expense, it is simply just another day at the office.
While most SLAPP suits ultimately fail in court, on account of the huge investment of money, time and resources they require of the citizen, they can be highly effective in discouraging citizen action. As one court in New York put it, “short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.” Gordon v. Marrone, 155 Misc.2d 726, 735, 590 N.Y.S.2d 649, 656.
That’s why about half the states in our Union, but not Virginia, protect their citizens, by statute, from being sued for engaging in expressive activity directed to matters of public concern. In Massachusetts, for example, in any case in which a citizen asserts that the claims brought against him are based on the exercise of the right to petition under the state or federal constitution he is entitled to bring a special motion to dismiss. That motion must be heard and determined as expeditiously as possible and it must be granted unless the exercise of the right to petition was devoid of any reasonable factual support or any arguable basis in law and the citizen’s acts caused actual injury to the responding party. Such a motion halts all discovery at once. In addition, the attorney general is authorized to intervene to defend the suit that was brought against the citizen or support the special motion to dismiss.
Some states such as Arkansas, California, Hawaii and Minnesota actually have what are termed “SLAPP Back” statutes that provide for attorneys’ fees and other sanctions to be levied against parties who bring SLAPP suits.
Virginia also does not allow its public officials to sue citizens for requesting that they take action in the public interest. But it does not do so by statute. It does so by judge-made, case law, also called common law, which, as we shall see is a bit less direct and a bit more convoluted.
A 2002 Virginia Supreme Court case called Titan America, LLC v. Riverton Investment Corp., 264 Va. 292, involved a suit by a cement company against a competitor that had appeared before the local board of zoning appeals and planning commission, initiated litigation in circuit court against the cement company, and had funded litigation by various county residents, all in an effort to block the company’s plans to acquire land for its business. Our Supreme Court upheld the trial court’s dismissal of the cement company’s suit. It held that the lower court had correctly applied something called the Noerr-Pennington Doctrine.
That Doctrine takes its name from two cases decided by the U.S. Supreme Court, Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 135 (1961); and United Mine Workers v. Pennington, 381 U.S. 657, 670 (1965). In those cases, the U.S. Supreme Court held that private parties are immune from antitrust liability for attempts to influence the passage or enforcement of laws. The Doctrine rests upon the principle that in any conflict between the antitrust laws and the First Amendment right to petition, the latter must prevail. The Virginia Supreme Court has incorporated that Doctrine into our state’s common law.
While Noerr-Pennington was originally formulated in the context of antitrust cases, it is now recognized to extend beyond that limited area. Thus, it is now not just the antitrust laws, but other law as well that must yield when they come face to face with a conflict with the First Amendment’s right to petition.
As the Virginia Supreme Court said in the Titan American case: “This case involves actions seeking to enforce or challenge governmental decisions through the use of the courts and, thus, falls squarely within the constitutional protections recognized by the Noerr-Pennington doctrine.”
The Noerr-Pennington Doctrine is also not limited only to actions taken in court, but, in Virginia, is applied equally to efforts to secure governmental action by legislative, executive and administrative agencies, as well. As the U.S. Court of Appeals at Richmond has said in a 2003 case called Igen International, Inc. v. Roche Diagnostics GMBH, 335 F.3d 303, the Noerr-Pennington Doctrine “grants First Amendment immunity to those who engage in petitioning activity.”
Therefore, even without an anti-SLAPP statute, Virginia has, by its court decisions, recognized that citizens should be protected, immune, from law suits based on their efforts to petition a government official. Unfortunately, as shown by Falls Church Commissioner of the Revenue Tom Clinton’s 2011 law suits, that, however has not proven sufficient. Apparently, in the absence of a specific statute spelling out the General Assembly’s prohibition against public officials suing citizens on account of their petitioning activities, some public officials will continue to engage in these sorts of efforts to intimidate the public. Therefore, with some reluctance, because it is already in our law, I have come to the conclusion that a statute is necessary.
My own preference would be for a Massachusetts type of statute that provides for an expedited, special motion to dismiss, stays discovery pending a decision on the motion and authorizes the attorney general to intervene at any point on behalf of the citizen being sued. I would add to that recovery of attorney’s fees from the public official personally, if the motion to dismiss is granted, and a provision encouraging judges to dismiss suits against citizens in derogation of their constitutionally protected right to petition the government, sua sponte, that is, on their own initiative.
It is difficult to imagine anything that strikes more directly at the heart of our form of government than a civil suit brought against a citizen by a public official seeking to suppress or deflect that citizen’s request that the official take some form of governmental action. While Virginia already condemns such actions, that has proven not to be enough. Virginians have been getting slapped around long enough. The New Year will bring the legislature back into session. Perhaps they too will decide that “there ought to be a law.”