In the 1980s, University of Denver professors Penelope Canan and George W. Pring coined the acronym “SLAPP,” which stands for “Strategic Lawsuits Against Public Participation.” They did so after identifying a trend of vindictive lawsuits brought to “intimidate and silence opponents or critics who had spoken out in the public sphere,” according to the Media Law Resource Center. While the specific SLAPPs that Canan and Pring studied mostly dealt with land use and development issues, these lawsuits can be filed regarding a variety of issues, ranging from food disparagement and real estate to police officer conduct and online speech. Those accused of sexual violence can also file SLAPPs against their victims and the institutions that may have investigated them for violations of school policy.
Defamation is the most common basis for a SLAPP lawsuit, but regardless of the issue, the common denominator in all SLAPP lawsuits is their purpose. Most plaintiffs in SLAPP cases do not aim to seek justice or even win in court. Instead, the primary goal is to intimidate, silence, and harass the defendants by forcing them to deplete their financial and emotional resources by dragging them through a court battle potentially lasting several years.
A defense against these types of harmful lawsuits comes in the form of anti-SLAPP laws. According to Forbes contributor Jay Adkisson, in general, these laws provide for a “special motion that a defendant can bring if the plaintiff’s lawsuit involves the defendant’s protected speech or conduct, usually meaning Constitutionally-protected speech or conduct.” Ideally, this motion provides the defendant with the opportunity to get the SLAPP suit thrown out quickly on the basis of frivolousness, thus avoiding the need to spend large amounts of time and money on a defense. However, the most significant downfall of any anti-SLAPP law is that it cannot prevent frivolous lawsuits from going to court in the first place—it only offers a defense after the case enters the court system.
SLAPP lawsuits became so prevalent in the 1980s and 1990s that some states adopted anti-SLAPP laws in order to protect citizens’ freedom of speech. Washington state passed the first such law in the United States in 1989. Today, twenty-eight states and the District of Columbia have some form of an anti-SLAPP statute in place. These laws differ significantly among jurisdictions in both wording and scope. Despite the variations, most states’ anti-SLAPP statutes are written in terms of “protected speech or conduct” and “provide only for attorney’s fees against the plaintiff as the penalty for bringing an improper action,” according to Adkisson. Some states, including Kansas and Michigan, have unsuccessfully attempted to introduce legislation for anti-SLAPP laws over the years. Despite the most recent attempt introduced by Congress to establish federal anti-SLAPP legislation in 2015, there is currently no federal anti-SLAPP law.
In the twenty-two states without anti-SLAPP statutes, defendants often face significant costs and hardship with few to no opportunities for redress. While they have the option to file a motion to dismiss, this rarely succeeds in stopping SLAPP suits. Even when a court grants a defendant’s motion to dismiss, the discovery process could have already forced the defendant to endure substantial expenses and harassment.
While the focus on eliminating sexual harassment and sexual violence on campuses has increased in recent years, there has also been an increase in the amount of litigation that accused students file against higher education institutions and accusers. According to a 2015 study by United Educators, students accused of or found responsible for sexual misconduct bring approximately sixty percent of lawsuits related to Title IX. The same study reported that seventy-two percent of accused or responsible students who file a Title IX-related lawsuit against their university also sue their individual accuser for defamation. Courts granted approximately twenty percent of requests from accused students who sought a temporary restraining order or preliminary injunction to stop the school’s adjudication process or enforcement of sanctions. While the rate of ultimate success accused students have with these lawsuits is currently unknown, filing a SLAPP seems to be a misguided way for them to repair their reputation. When accused students file lawsuits against their accusers, they typically assert that the accuser made defamatory statements throughout the Title IX investigation.
While these types of lawsuits are nothing new to the Title IX process, activists, administrators, and lawyers have observed a sharp increase in the number of defamation-based SLAPP suits. Statements made in a Title IX investigation are not protected by law, unlike statements made in criminal proceedings in which witness testimony has absolute privilege and cannot be used as a basis for a civil claim of defamation. According to an article from JD Supra about the aforementioned study, Title IX investigations also “involve judgments and facts potentially harmful to a student’s reputation, and thus, to academic or employment prospects.” These factors combine to create the perfect storm to allow the accused in a Title IX case to become the accuser in a SLAPP lawsuit.
As SLAPP lawsuits have become a more common weapon for perpetrators to retaliate against survivors in both the Title IX setting and other sexual assault cases, the creation and strengthening of anti-SLAPP laws is more important than ever to protect survivors from frivolous defamation lawsuits and the resulting financial, emotional, and mental damage. SLAPP lawsuits filed against survivors have a chilling effect on reporting, which is already done at an extremely low rate. According to the American Civil Liberties Union of Ohio, these suits “threaten public discourse and chill free speech by targeting those who speak out on matters of public importance,” including sexual misconduct. The use of these frivolous defamation lawsuits has already occurred in several high profile cases, including when former Florida State University quarterback Jameis Winston counter-sued his accuser in 2015, as well as when director Brett Ratner sued a woman who made claims on Facebook in 2017 that he raped her more than a decade earlier.
To prevent more lawsuits like these, and to protect survivors when they do occur, anti-SLAPP laws need to be utilized, strengthened, and created at the federal level. Federal protections against SLAPP lawsuits would safeguard survivors from SLAPPs even if their states did not have specific anti-SLAPP statutes. A law at the national level would also provide equal security across the board instead of the current varying levels of protection from state to state.
Authored by Natalie Fitts, Policy Intern
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