LEGAL INTIMIDATION: A SLAPP IN THE FACE OF DEMOCRACY by Fiona J. L. Donson. London: Free Association Books, 2000. 176 pp. Paper. 16.95 POUNDS. ISBN: 1-85343-504-X.
Reviewed by Penelope Canan, Department of Sociology. The University of Denver.
About 15 years ago as socio-legal scholars at the University of Denver, George W. Pring and I uncovered the use of civil litigation to silence political speech in the United States. The National Science Foundation sponsored our qualitative and quantitative studies of hundreds of cases throughout the country. Over the years we reported how this practice struck at the very core of democracy. It resulted in politically chilling thousands of civically involved citizens, and it wreaked personal and financial havoc on most targets as well as having troublesome "ripple effects" on other citizens' willingness to participate in civic discourse. We named the practice Strategic Lawsuits Against Public Participation (or SLAPPs). We produced a series of empirically based academic journal articles and a book (Pring and Canan 1996), and we stimulated a re-appreciation of the Right to Petition the Government for Redress of Grievances found in the First Amendment to the U. S. Constitution. Today SLAPP targets are more likely to sue back for loss of political rights and win both compensatory and punitive damage awards against filers. About 20 American states have passed anti- SLAPP laws that aim to turn the tide against would-be SLAPP filers. Yet, the practice continues.
Fiona Donson's book, LEGAL INTIMIDATION, examines SLAPPs and their variants by focusing on high profile cases where free speech faced legal shenanigans as corporations collided with their critics. In the U. S., Donson looks at the "Alar scare" that was a clear example of privileging economic interests over civic concerns. The lawsuit that followed a television program (the Oprah Winfrey show) dealing with "dangerous foods." Although we found that it is not corporations that always file SLAPPs, the business use of the tactic to silence critics certainly dominates the picture and points to the "modern social conflict" (Dahrendorf 1988) in capitalist democracies. That the courts can be so easily manipulated by repeat players (Galanter 1974) makes vigilance regarding civil rights especially important.
Donson's major contribution is the scrutiny of Canadian and British examples of "SLAPP-style litigation." She extends this face of power to include the business use of the courts to silence critics who speak out in arenas not purely political. Here, for example, she covers the lawsuit filed by a Japanese multinational paper manufacturing company, Daishowa, against Friends of the Lubicon (Cree Nation). The dispute was over Friends of Lubicon's boycotting activities to stop logging on lands in Alberta they claimed as theirs under aboriginal land rights. This was a SLAPP, having the elements that qualified under the Canan and Pring definition: a civil lawsuit filed against
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private individuals or groups involved in speech and expressive activities designed to influence governmental action, including the behavior of the electorate. Along the way, Daishowa made sure to get the courts to gag a British Columbia academic, Chris Tollesfson, so that he could not contribute to the record. They did this by strategically NOT naming him as a party in the lawsuit. The whole case puts a bad taste in any democratic mouth. Yet, hope springs from the longer view where we appreciate that struggles are never isolated events, and a good outcome can result from perseverance. Donson reports that boycotts and picketing have been strengthened, as protected political activities in Canada and the Lubicon were successful at curbing logging on their lands. In addition, she notes that experts at the University of Victoria regard SLAPP actions as a "fast growing phenomenon in Canada, with many people facing such a lawsuit and literally hundreds facing the threat of one." Also, although the Charter of Rights and Freedoms does not directly protect civic activism, Donson believes that the Charter may "nevertheless be having a positive effect in challenging the traditional assumption that the law is politically neutral" (p. 66).
Next Donson spends two chapters covering the extremely aggressive business practices of McDonald's, the multinational hamburger chain that dominates the world's fast food industry. She entitles one chapter "McDonald's Love Affair with Libel Law" and the other "McLibel: McDonald's Goes to Court." Throughout she details a history of frequent corporate use of legal intimidation to silence public criticism, fierce pursuit of market domination, and the company's sense of itself as a righteous bully. These chapters are extremely well written and are perfect for a film about David v. Goliath. In the end, everyone loses and everyone wins something. It's just that Goliath had representatives who were paid to participate in the battle while David's stake was principled and personally bloody.
When Donson turns to Monsanto and its numerous efforts to conduct business without "interference" from the public, she confirms several empirical findings from our study of the United States. For example, as "repeat players," big businesses turn to the use of SLAPPs when they are play for "rules of the game" and not to win specific skirmishes. Also, disputes have careers and claims get broader or narrower over their lifespan. Governmental failure to respond to initial grievances can lead to an escalation of a dispute that leaves the citizens doing government's job but without its resources. And, SLAPP filers are arrogant bullies who have disdain for citizen critics, consider them "illegitimate" actors in the dispute, and do not realize that corporate activities are conducted at the pleasure of the civic community. Finally, it is noteworthy that SLAPPs appear to follow trends in political disputing. Whereas quality of life versus rapid real estate development was a ripe arena for SLAPPs in the 1980's, environmental issues became "popular" SLAPPs beginning in the 1990s. Biotechnology, genetically engineered foods, and corporate "greenwashing" are most recent versions of the same story of silencing free speech for economic advantage.
The conclusion of this book is especially noteworthy for its discussion of the changing landscape of political activism. The civil society and interest group politics have replaced party politics and individual voter engagement. Today's political battles are more likely about consumer and environmental groups who find they must be vigilant to hold corporations accountable in
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the face of globalization. Government institutions have yet to catch up with business practices that are impervious to political boundaries. Yet, the use of legal institutions to silence critics is a perversion of democracy that the courts must resist and other democratic institutions better pay attention to. Increasing cynicism about the government institutions, of course, means a crisis of legitimacy, a further worrisome result of legal intimidation.
REFERENCES:
Dahrendorf, Ralf. 1988. THE MODERN SOCIAL CONFLICT: AN ESSAY ON THE POLITICS OF LIBERTY. New York: Weidenfeld & Nicolson.
Galanter, Marc. 1974. "Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change," LAW & SOCIETY REVIEW 9: 95-160.
Pring, George W. and Penelope Canan. 1996. SLAPPS: GETTING SUED FOR SPEAKING OUT. Philadelphia: Temple University Press.
Copyright 2001 by the author, Penelope Canan.