Anti-SLAPP laws respond to SLAPP (Strategic Lawsuits Against Public Participation)

* This blog entry is written by a non-lawyer and is not intended to be legal advice. Anyone with specific questions about this topic and whether or not it applies to them, should consult a practicing attorney. *

Public participation is key to democratic governance and ensuring that the public’s concerns are met when government officials are making decisions.  However, in Illinois and across the United States, certain forms of public participation vis-a-vis corporations, government officials, and public bodies have been targeted when members of the public advocate for government action that is in opposition to the interests of a corporation or the desires of a government entity.  When individuals attend government meetings and engage in lawfully protected First Amendment activities, and subsequently are sued by corporations or government bodies under some pretext for the purpose of chilling the individuals’ speech, these lawsuits are called Strategic Lawsuits Against Public Participation (SLAPP).

SLAPP suits have been used in Illinois on a number of occasions.  Here are some examples:

- Horizon Group Management, LLC v. Bonnen (2009): This case involves a tweet that the former tenant of a Chicago apartment complex sent to her twenty Twitter followers regarding mold in her former apartment building.  As a result of the tweet, which alleged that Horizon kept keeps its apartments in poor condition, Horizon sued the former tenant for defamation and $50,000 in damages.  This case is pending.  One of the issues is whether the former tenant’s tweet is protected First Amendment speech.  

- Scheidler v. Trombley (2007): In this case, the Pro Life Action League, which is a pro-life advocacy group in Illinois, sued Illinois Planned Parenthood for defamation.  The suit revolved around statements that Illinois Planned Parenthood’s CEO Steve Trombley made in letters to city and county officials as well as a local newspaper.  Specifically, Trombley wrote that pro-life groups have a “well documented history of advocating violence.”  Trombley was sued by the Pro Life Action League and others for defamation, but the court threw out most of the claims in the suit against Trombley by application of Illinois’ then newly enacted Citizen Participation Act (described more fully, below).

- Oliver Hoffman v. The Village of Wayne, The Dupage County Forest Preserve, and The Wayne Community Association (1995): This is a lawsuit in which the Citizen Advocacy Center’s community lawyers defended the rights of a community group.  The lawsuit was filed in DuPage County by developer Oliver-Hoffmann against individuals involved in The Wayne Community Association.  Specifically, the developer took issue with The Association’s petition to the Forest Preserve to preserve the open space on which Oliver-Hoffmann was seeking to build and for making statements to the press seeking the condemnation of the developer’s 203 acres of land in the middle of the community of Wayne. In this prime example of a SLAPP suit, Oliver-Hoffmann brought the suit against the defendants for what they called “civic conspiracy” and “tortious interference with business expectancy.” Oliver-Hoffmann sought $110 million from each defendant.  However, the judge dismissed the lawsuit with prejudice against Oliver-Hoffman.

- Westfield Partners, Ltd. v. Hogan, 744 F. Supp. 189 (1990): This case is one of the more explicit SLAPP cases involving a development group called Westfield Partners and a group of residents of Wayne Township.  Residents successfully blocked the development group’s use of a road by filing a petition with the township.  The development group then filed a suit against the homeowners.  In the suit, the development group claimed that the homeowners involved had committed conspiracy to deprive of due process, interference with prospective economic advantage, and slander. The development group sought $4 million in damages.  The court ruled against the developer saying that the, “entire complaint against the defendants [was] based upon nothing more than defendants’ exercise of their right, under the [F]irst [A]mendment, to petition the government for a redress of grievances.”

The recent increase in these lawsuits led to the establishment of anti-SLAPP laws in Illinois and 25 other states.  Specifically, the anti-SLAPP law in Illinois is the Citizen Participation Act, which lays out how one would protect themselves from a SLAPP suit. The Citizen Participation Act allows defendants of SLAPP suits to use the act as a defense against a SLAPP suit. With that, the Citizen Participation Act recognizes that “[t]he threat of SLAPPs significantly chills and diminishes citizen participation in government, voluntary public service, and the exercise of these important constitutional rights.” 735 ILCS 110/5.  The Citizen Participation Act protects those who believe they are being sued on the basis of “any act or acts in furtherance of [your] rights of petition, speech, association, or to otherwise participate in government.” Another important criteria for the Citizen Participation Act, is that the speech or petition is “genuinely aimed at procuring favorable government action, result, or outcome.  In addition to protecting  the above mentioned  rights, anti-SLAPP laws also benefit the defendant in the trial process. The Citizen Protection Act in Illinois does this in the following ways:

- When the motion on an anti-SLAPP suit is pending, plaintiff generally cannot engage in discovery which means they cannot ask the defendant to produce documents, sit for a deposition, or answer formally written questions.

- The Citizen Participation Act also allows those who have filed a motion for an anti-SLAPP suit to get a speedy decision on the defendant’s motion to dismiss and to file an expedited appeal if the court denies the motion.

And if the court happens to grant the motion to dismiss the case:

- The court will dismiss the case in favor of the party who is claiming a First Amendment violation;

- The individual is entitled to recover attorney fees and court costs associated with the case; and

- The individual may be able to bring a claim for malicious prosecution against the plaintiff who brought the SLAPP suit.

In the case of Illinois, the Anti-SLAPP law is fairly new, considering the Citizen Participation Act only just passed in 2007.  That being said, several cases interpret the recent legislation broadly.  These cases have set important precedents for utilization of the Citizen Participation Act.

In another case, Wright Development Group v. Walsh (2010), the Illinois Supreme Court determined that not only do individuals have grounds for using the Citizen Participation Act to protect their First Amendment rights, but also that individuals’ comments are protected when speaking to the press regarding the issue at hand, because speaking to the media is in furtherance of achieving a favorable government action.  In this case, in addition to an individual being sued for speaking out against a company, two newspapers (the Chicago Sun-Times and the Pioneer Press) were sued as well.

In Sandholm v. Kuecker (2012), the plaintiff sued the defendants for defamation.  When the defendant invoked the First Amendment and asked for dismissal pursuant to the Citizen Participation Act, the court denied the motion because “[i]f a plaintiff’s complaint genuinely seeks redress for damages from defamation or other intentional torts and, thus, does not constitute a SLAPP, it is irrelevant whether the defendants’ actions were ‘genuinely aimed at procuring favorable government action, result, or outcome.’” Thus, the court distinguished the application of the Citizen Participation Act from true cases of defamation.

For members of the public who engage in protected political activity, anti-SLAPP legislation is a crucial tool.  While it can not prevent someone from being sued in the first place, it does provide a critical legal defense.  Illinois courts have interpreted the Citizen Participation Act’s  language broadly.  Although the history of its use is short, in the future the Citizen Participation Act and other states’ anti-SLAPP laws should prove to be valuable for holding accountable those who attempt to trample on the constitutional rights of citizens, as well as encouraging more participation by the public in general.

Collin Kee
2013 College Summer Intern