Staving Off Lawsuits that Developers Use to Intimidate Critics

Story from the magazine by Lawrence Hurley / Sept. 13, 2002

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One of Miami Beach's historic mansions (Ron Francis, City of Miami Beach)

At her home in Miami Beach, Fla., Colleen Martin is sifting through reams of legal documents, preparing to defend herself against a prominent local developer who is suing her for thousands of dollars. In November 2000, Martin put up signs in her front yard bearing slogans that criticized Breakstone Homes for tearing down historic properties in the prosperous beachfront community—known for its tanned celebrities and 1930s Mediterranean revival mansions—and replacing them with McMansions. "Boycott Breakstone Homes—They’re destroying our beach!" said one of the signs. "Breakstone Homes—Bad for our beach" said another. Martin felt that she was merely exercising her right to free speech. Noah Breakstone, who owns the company, didn’t like it one bit. Soon after, he filed a lawsuit accusing Martin of slander, libel, and trademark infringement, among other things.

Miami's South Beach (Ron Francis, City of Miami Beach)

According to Martin, Breakstone had hit her with a so-called SLAPP suit, short for Strategic Lawsuit Against Public Participation. George Pring, the University of Denver law professor who coined the phase, says this form of litigation has become more and more common when people speak out against big business. The plaintiff usually embarks on such a case with little or no expectation of contesting it in court, hoping to drain adversaries of time and money. The clear intention of such suits, says National Trust lawyer Betsy Merritt, is to "directly intimidate people and deter them from using their First Amendment rights."

"It’s really all about big business strong-arming everyone else into shutting up," says Martin, who just happens to be a lawyer herself.

No one really knows how many SLAPPs are currently being contested around the country, since many individuals and groups fight them without fanfare. But over the last decade, the number of states that have adopted legislation to protect people against such suits has climbed to 20. These laws often include provisions to encourage judges to throw out groundless cases at an early stage; some allow defendants to claim damages; and others guarantee immunity for anyone who petitions a government agency with a legitimate grievance. Lawmakers are debating anti-SLAPP bills in Michigan and Colorado; in Texas, only a last-minute veto by Gov. Rick Perry (R) killed a bill last December. Mark Goldowitz, a lawyer in Berkeley, Calif., who runs the California Anti-SLAPP Project, campaigned for his state’s anti-SLAPP legislation, passed in 1992. Defendants can now file a motion that puts the burden on the plaintiff to prove that the case has merit. "I would say there are still a distressingly high number of SLAPP suits in California," says Goldowitz, "but the existence of this law has deterred some people."

Among the states where defendants can now claim damages if the case against them is not proved is Rhode Island. The case that prompted the state to adopt such legislation in 1993 was finally resolved last December, with defendant Nancy Hsu Fleming walking away with $400,000. She was sued by Hometown Properties after questioning in a widely circulated letter to the state’s environment department whether the company’s dump in North Kingstown might be polluting the town’s water supply. Meanwhile, in New Mexico—where an anti-SLAPP law was signed into law last April—Albuquerque resident Joe Valles is also slapping back at a developer. He had campaigned against a proposed Wal-Mart store in town, prompting the company to file suit. Now Valles wants damages after a court threw out the case.

In states without anti-SLAPP legislation, like Pennsylvania, defendants have no way to recoup their legal expenses from their adversaries, something developers know very well. For two years members of the Pittsburgh History and Landmarks Foundation fought a suit filed by CVS after they opposed plans for a new pharmacy in the historic district of Homestead. A $7 million lawsuit, filed by CVS and developer Gustine Properties, Inc., claimed that the foundation had been "deliberately, intentionally and maliciously" abusive. Foundation president Arthur Ziegler and its general counsel, Elisa Cavalier, were both named in the suit, along with 15 others, including local businessmen, the borough of Homestead, and some of its council members. "Our first reaction was outrage at the allegations," says Ziegler. "Our second reaction was to fight it vigorously." The foundation received legal support in its fight from the National Trust.

Despite the foundation’s success in the legal battle—the judge dismissed from the case all of the accused parties except the borough—Cavalier says the suit had a negative effect on her and her fellow defendants. She believes that developers are more inclined to threaten legal action in states without anti-SLAPP legislation, in most cases never intending to go to court. "All they want is to make sure people aren’t going to public meetings and exercising their First Amendment rights," she says. The threat of SLAPP suits is so severe that all preservation groups should carry insurance, Cavalier says. Without it, the foundation would have faced a $600,000 bill. The case against the borough is expected to go to court in August.

The Trust’s Betsy Merritt believes that plaintiffs should be subject to stronger financial penalties if they cannot produce convincing evidence in court. "By nature SLAPPs are frivolous, but they do really scare people," she says. Pring, the Denver law professor and coauthor of the 1996 book SLAPPs: Getting Sued for Speaking Out, does, however, say that even in states without protective legislation courts are increasingly throwing out baseless SLAPP suits as judges become more experienced at dealing with such cases.

This is no consolation to Colleen Martin back in Florida, where a watered-down anti-SLAPP law—it only applies to people speaking out against government agencies—was passed in 2000. The case against her has not been dismissed despite several hearings, and she is planning for an October trial. "If I have to fight for my right to free speech, then I will do so," she says firmly. "All the way to the Supreme Court."

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