Legal Tactic Chills Debate, Activists Say

Threat of costly court battles gives many charities goose bumps

Terri Swearingen says that when she learned she had been sued for more than $1-million by the corporation

that was operating a toxic-waste incinerator two miles from her home in Chester, W.Va., she cried for three days.

“I was paralyzed,” Ms. Swearingen recalls, as she imagined what effect the suit might have on her family — which didn’t have anything close to $1-million in assets — and on the battle to shut down the incinerator, which she had been waging for years. “I didn’t want to get out of bed.”

She and 32 other local homeowners had filed a class-action lawsuit in January 1997 seeking compensation for what they alleged were damaged property values caused by having a major commercial hazardous-waste facility along the Ohio River. The incinerator was emitting lead and mercury in their neighborhood, and within several hundred yards of an elementary school.

Two months later, the incinerator’s developer, Waste Technologies Industries, fought back, charging that protests by her and the other plaintiffs had defamed it and otherwise harmed its business. It asked $1-million in punitive damages from each of the 33 homeowners, plus $25,000 each in compensation.

The lawsuit caused Ms. Swearingen to tone down her criticism. “I’ve not backed down in my views, but it’s affected the kinds and the levels of activism I’ve participated in” as coordinator of a coalition of groups opposed to the incinerator, she says. And although her efforts were honored in 1997 with the Goldman Environmental Prize, she acknowledges that “we have been less vocal and less visible” since the countersuit was filed. What’s more, she adds, “there are people who will never talk about it again, for fear that they might be sued.”

Ms. Swearingen is one of the estimated thousands of non-profit officials and grassroots activists who in recent years have been sued for commenting on various matters of public concern. The suits — or often merely the threat of them — are changing the way many non-profit organizations do their work. The cumulative effect of such litigation, some observers believe, is to intimidate many activists and to curtail public debate on issues as diverse as real-estate developments and genetically modified food.

Such litigation “has had a really huge impact on community organizations — probably more than they would say, and more than we’d like corporations to know,” says Christina Roessler, managing director of the French American Charitable Trust, in San Francisco, which supports grassroots community groups. “It’s been an extraordinarily effective strategy at countering free speech and public involvement.”

“This is the biggest threat to non-profits I have ever seen in three decades of working with them as a lawyer, as a volunteer, and as a staff professional,” declares George W. Pring, a law professor at the University of Denver who co-founded the Political Litigation Project there in 1984 to study lawsuits brought against citizens who attempt to influence government officials. “The threat should be of concern to liberals and conservatives, Democrats and Republicans, charities and big business alike.”

The targets of such lawsuits are not just environmentalists. People and groups have been sued for reporting health-code violations, for filing complaints with consumer agencies, and for opposing commercial or industrial developments, among other activities. Some suits — known as SLAPP’s (for “strategic lawsuit against public participation”) — are aimed at people who are petitioning government on some issue of concern; other suits, not strictly classified as SLAPP’s, focus on other critics of corporate behavior.

Those who file such lawsuits usually contend that they are simply exercising their legal right to defend their interests, and to ensure that their critics are held accountable for their statements and actions.

But legal experts say the suits often are filed not with any realistic expectation of prevailing but merely in hopes of scaring, silencing, or hobbling persistent critics by overwhelming them with paperwork and legal expenses.

“When somebody wants to SLAPP, they’re usually doing it not to win but to tie up the other side,” says James Wheaton, founder of the First Amendment Project, a non-profit public-interest law firm in Oakland, Calif. “At some level, the amount of money involved in a dispute is so high that a monied interest will try to scare off its opponents” by filing a suit it knows is unwinnable.

Indeed, most of the lawsuits are eventually dropped or dismissed. But increasingly, individuals as well as organizations find themselves named as defendants, many observers warn — and many of them may not be covered by liability insurance.

Mr. Pring estimates that hundreds — perhaps thousands — of such suits are filed or threatened every year, although keeping track of them all is impossible. But some observers believe that SLAPP suits — as well as others that seek to blunt criticism but involve no interaction with government officials — are on the rise.

“An unfortunately growing part of our practice is defending people who are sued for speaking out,” notes Mr. Wheaton of the First Amendment Project. “The incidence of SLAPP’s has gone up across the board.”

In recent years, corporations have also become more savvy about whom they decide to sue, according to several observers. Instead of being directed against large non-profit groups with ready access to legal talent, lawsuits are increasingly being brought against small organizations — or merely against their leaders as individuals.

“They are now used in much more sophisticated and frightening ways, because companies are much more aware of the response,” says Ms. Roessler of the French American Charitable Trust. Going after individuals or small organizations “undermined a coherent and collaborative response and pitted people in the community against each other,” she says, “because some were being hit and others were not.”

Litigation, say many observers, has been very effective in silencing corporate critics and in stifling public debate about many issues of general concern.

“Just the threat of a SLAPP suit scares the bejesus out of people because they know that a lawsuit is a black hole that sucks your money,” says Peter Montague, who directs the Environmental Research Foundation, in Annapolis, Md.

Mr. Montague, whose organization publishes a weekly newsletter on environmental issues, speaks from personal experience. He and his charity were sued in 1992 after his publication reprinted a memo by an Environmental Protection Agency official. The memo characterized as potentially fraudulent some research done by the Monsanto Company that purported to show that exposure to dioxin did not harm chemical-plant workers.

The lawsuit, filed by the former Monsanto employee whose research was being questioned, lasted five years, ending only with the plaintiff’s death. Mr. Montague estimates that his legal defense cost about $200,000 — much of which was defrayed by foundations and other supporters — as well as countless hours of his time.

“It’s a frightening thing to be sued,” Mr. Montague observes. “It stresses your marriage and all your relationships with your funders. You blame yourself, and it’s a big blow to your self-confidence.”

Several daily newspapers also reprinted the same memo that sparked the lawsuit, but they were not named as defendants — presumably, Mr. Montague surmises, because they were better equipped to fight libel suits and therefore less inviting targets than a small non-profit newsletter publisher.

“The First Amendment is the only thing we’ve got going for us,” he adds, “and this is a systematic attempt to take it away.”

“A lot of what SLAPP-ers want is to drive you crazy, and with luck, also broke,” observes Anne E. Simon, senior attorney at Citizens for a Better Environment, a statewide environmental-health group in California that has been sued several times. The result: Organizations like hers spend lots of time training staff members, developing guidelines, and reviewing materials to minimize the likelihood of attracting a lawsuit.

“The issue becomes one of driving defensively,” Ms. Simon says, “because one doesn’t want to paint a bull’s-eye on oneself in fluorescent colors.” Organizations should insure themselves against liability, she advises — making sure that their policies cover defamation claims, which many policies specifically exclude, she says.

A wide variety of non-profit organizations and executives have found themselves to be legal targets as a result of their activities. Among current examples:

* Consumers Union, the non-profit publisher of Consumer Reports magazine, is being sued by Isuzu Motors and the Suzuki Motor Corporation for defamation and product disparagement after it rated “unacceptable” the 1996 Isuzu Trooper and 1998 Suzuki Samurai, both of which tipped onto two wheels during tests of their emergency handling. The Isuzu trial was scheduled to start this week in Los Angeles.

* Howard F. Lyman, whose account of cattle-feeding practices on Oprah Winfrey’s television talk show prompted her to swear off hamburger, is a codefendant with her in lawsuits brought by Texas ranchers. Mr. Lyman, who when the show was broadcast in 1996 directed the “Eating with Conscience” campaign of the Humane Society of the United States, now is president of EarthSave International. The U.S. Court of Appeals for the Fifth Circuit is now considering the case, after the ranchers lost an earlier round in federal court.

* The Superior Wilderness Action Network, of St. Paul, and Forest Guardians, of Santa Fe, N.M., are codefendants with the U.S. Forest Service in a lawsuit brought by Minnesota loggers alleging that the environmentalists’ efforts to block timber sales by the Forest Service have harmed their ability to make a living.

The loggers’ suit has attracted national attention because of its novel argument: that the environmentalists’ actions are motivated by a religious belief in “deep ecology” which it has imposed on government, in violation of the First Amendment. By delaying or reducing timber sales, the loggers contend, the Forest Service has shown favoritism toward the environmental groups’ religious belief in the sanctity of trees and other flora and fauna, thereby converting national forests intended for multiple uses into de facto wilderness areas from which commercial logging is banned.

“Deep ecology is a threat to northern Minnesota,” says Stephen B. Young, the lawyer representing the loggers, because its adherents are committed to “rewilding” the area by halting logging and mining operations there. The wilderness network “can believe in deep ecology as much as it wants,” he says. “It just can’t impose that belief on other people.”

But Ray Fenner, the Superior Wilderness Action Network’s executive director, says the plaintiffs’ attempt to hamstring its efforts “rocks the base of what this country was founded upon”: namely, free speech and citizen participation in government.

“It makes me angry that somebody would try to take my rights as a citizen away from me for participating in the democratic process,” Mr. Fenner declares. The experience has been stressful, he acknowledges: “Having a knock on the door and being served with a $600,000 summons — that hit me right between the eyes.”

Mr. Fenner says that he is even more committed to his group’s mission, however, and that publicity about the lawsuit has even resulted in a slight jump in membership. But there has been a downside, too. “We did lose a board member who was scared about this,” he says.

Retaliatory litigation not only results in legal costs and forces hours to be spent mounting a defense in behalf of people who have been sued, but it also has less tangible effects: research topics not pursued, press statements not released, testimony not given, or objections toned down on the part of people who may fear becoming defendants.

“A lot of the effect isn’t in what happens when people get sued for writing something, but in stopping them from writing something in the first place,” says Sheldon Rampton, who edits PR Watch, a quarterly publication on the public-affairs industry, for the Center for Media and Democracy, in Madison, Wis.

Asks Amy Lyons, program executive at the Richard and Rhoda Goldman Fund, in San Francisco: “How many people aren’t speaking out because they’re afraid of being hit with a SLAPP?”

Activists and legislators have taken several steps to rein in lawsuits aimed primarily at squelching debate. A score of states have passed “anti-SLAPP” laws, which give judges greater leeway in dismissing such suits early in the process if they appear to have little substance.

“The beauty of anti-SLAPP legislation is that you get these cases thrown out fast so you don’t have to spend lots of money defending them,” says David J. Bederman, an Emory University law professor who consulted in the drafting of such laws in Georgia and elsewhere.

Some targets of such lawsuits are countersuing by filing so-called SLAPP-backs, seeking monetary damages for legal harassment or frivolous litigation. “We can make it difficult, expensive, embarrassing, and harmful to people who are presently bringing SLAPP suits almost cost-free,” says Mr. Montague, of the Environmental Research Foundation. “But if we don’t mount some kind of systematic response, I don’t think we can stem the tide.”

Mr. Montague suggests that an information clearinghouse be established to monitor such litigation, and to advise people who are sued about their options and potential strategies. Foundations could provide money to defend such lawsuits, he says, and the funds could then be replenished with money won in SLAPP-back suits.

Mr. Pring, the law professor who has studied SLAPP’s for years, is in the process of establishing a SLAPP Resource Center as a central repository of information and advice about such litigation. The center, which will maintain a database of SLAPP cases and pleadings, will respond to queries from both filers and targets of such suits, as well as journalists, legislators, regulators, and other interested parties.

Many non-profit officials are alarmed at the prospect of seeing public debate on many critical social issues constrained and criticism muted because of fears of being sued.

“A lot of people are pulling in their horns at the very time when open debate is our only hope for reaching informed decisions” about a wide range of corporate and government practices that affect public health and the environment, says Mr. Montague. Companies promoting new technologies like genetically modified crops or new kinds of pesticides “are in a hurry to get the new technology out and make a lot of money,” he says. “If they shut off public debate, a major brake on stupid behavior is removed from the system.”

Mr. Wheaton of the First Amendment Project sees a basic shift in attitude on the part of many community activists. “Other lawyers have told me that 20 or 25 years ago, a small environmental group concerned about something in its community wouldn’t have thought twice about bringing it to the notice of the city council, the zoning board, or whatever to get some action,” he says. “But today, in similar cases, every single time somebody asks me, Will I get sued? There are reassurances you can give them, but that’s a real sad commentary on society.”