Our democracy depends on checks and balances – and those who work to expose the wrongdoing of America’s rich and powerful have a critical role to play. But this work is becoming increasingly risky: community activists, civil society campaigners and journalists face the growing threat of retaliation for speaking truth to power.
Retaliation comes in many shapes and forms. Strategic lawsuits against public participation (SLAPPs) are a particularly dangerous tactic, because of their potential to create a wider chilling effect on civil society and the media.
If you or your organization detects a risk of a SLAPP, it is important to prepare yourself right away. Here are a few of our favorite resources to help you get started.
PREVENTION is perhaps the most important step you can take. Not all lawsuits are SLAPPs; some lawsuits are legitimate. The most essential action you can take is to know your rights, and to know what kind of activities can expose you to liability.
- Are you planning to publish anything that is critical of a company or individual? This factsheet by the First Amendment Project describes some best practices on how to avoid publication liability. If you want to learn more, the First Amendment Project has also prepared a report that goes into more depth on the laws governing defamation and other forms of publication liability.
- Are you planning to head to the streets to protest? The Civil Liberties Defense Center provides a series of “know your rights” trainings for activists, immigrant communities, and youth.
- Do you know what kinds of free speech are protected and not protected by the First Amendment of the U.S. Constitution? The law is nuanced – not everything is protected. Check out this position paper on free expression by the ACLU.
- Is your type of public interest work vulnerable to SLAPPs? As our website illustrates, SLAPPs affect wide range of actors working in the public interest.
UNDERSTAND THE THREAT. If a person or company files a SLAPP against you, they are not going to call it a “SLAPP.” They are going to disguise their action as a legitimate lawsuit. Some corporations, in particular, will not limit themselves to filing a SLAPP; they will wage a war against you on multiple fronts. You can prepare yourself and your organization by learning to recognize the warning signs that you are being targeted.
- How do I know if a lawsuit is a SLAPP? As our website describes, SLAPPs often masquerade as legitimate lawsuits. Work with your lawyer to find out if the lawsuit is a SLAPP or legitimate.
- Why are SLAPPs so dangerous? This op-ed by Katie Redford of EarthRights International highlights the dangerous tactics that corporations are using to intimidate environmental organizations, including but not limited to SLAPPs.
- What other types of intimidation tactics are common? In a June 2018 report, Greenpeace US analyzed a particularly egregious, multi-faceted campaign being waged against activists by the company Energy Transfer Partners.
IF SUED, DEFEND YOURSELF VIGOROUSLY. If a person or company files a SLAPP against you, their aim is to silence your constitutionally protected free speech. Don’t let them – speak louder about the wrongdoing that you have exposed, and let your supporters know that you are being “SLAPPed.” Here is some general guidance on what to expect, and what your options are. Be sure to consult your attorney as early and often as possible, because each case is different.
- What should I do if I’m sued or think I’m about to be sued? Most importantly, find a lawyer who has experience with First Amendment law. But f\or general guidance on what to expect, the First Amendment Project has prepared a “survival guide” for dealing with SLAPPs.
- Are there any laws that protect against SLAPPs? Some states have enacted anti-SLAPP statutes, but the quality of these varies widely. The Public Participation Project provides information about each state’s anti-SLAPP protections. You should not rely solely on the anti-SLAPP law to provide you with protection; be prepared to respond to a SLAPP threat with a multi-dimensional legal and communications campaign.
For more information, please visit the resources on the Protect the Protest website or contact us at Info@ProtectTheProtest.org.