Commentary: Ordinary citizens face lawsuit goal of silence
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. Sometimes you get a political case, like Gov. Geo...
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.
Sometimes you get a political case, like 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." (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 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."
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.
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' e-mail address is firstname.lastname@example.org .