Strategic lawsuit against public participation

Based on Wikipedia: Strategic lawsuit against public participation

The Lawsuit Designed to Lose

Here's a peculiar kind of legal action: a lawsuit where the plaintiff doesn't actually expect to win.

Think about that for a moment. Someone hires expensive lawyers, files court papers, initiates discovery proceedings, and goes through the elaborate machinery of the legal system—all without any genuine hope of prevailing in court. Why would anyone do this?

The answer reveals something troubling about how the law can be weaponized. These are called Strategic Lawsuits Against Public Participation, or SLAPP suits. The goal isn't victory in the courtroom. The goal is exhaustion. Fear. Financial ruin. The plaintiff wins not by obtaining a favorable judgment, but by watching their critic crumble under the weight of mounting legal bills, sleepless nights, and the sheer psychological burden of being sued.

How the Game Works

A New York judge named J. Nicholas Colabella once described SLAPP suits with striking clarity: "Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined."

The mechanics are straightforward. Someone criticizes a corporation, a politician, or a wealthy individual. Maybe they write an investigative article. Maybe they speak up at a town council meeting. Maybe they post something on social media. The powerful party responds not by refuting the criticism, but by filing a lawsuit—typically for defamation, though other legal theories work just as well.

Now the critic has a problem. Even a frivolous lawsuit requires a response. Lawyers must be retained. Documents must be gathered. Depositions must be attended. Every step costs money and time. For an individual facing a well-funded corporation, the asymmetry is devastating.

The plaintiff, meanwhile, has an entire legal department on salary. The marginal cost of pursuing litigation is relatively low. They can afford to drag things out for years.

The Chilling Effect

But the damage extends far beyond the immediate target. SLAPP suits create what lawyers call a "chilling effect"—they deter others from speaking out. Journalists reconsider whether an investigation is worth the risk. Neighbors think twice before opposing a development project. Activists wonder if their advocacy might bankrupt them.

This is precisely the point. The lawsuit sends a message: speak up, and you could be next.

Some SLAPP plaintiffs have developed the strategy into an art form. They engage in what's called "forum shopping"—seeking out courts in jurisdictions that will be most favorable to their claims, even if neither party lives there. They include extra defendants, sometimes relatives or employers of the actual critic, to increase pressure. They make claims that are deliberately difficult to disprove or that rely on verbal rather than written exchanges. They refuse any reasonable settlement. They demand extensive discovery, forcing defendants to spend countless hours producing documents. They appeal minor procedural points, extending the litigation for years.

The lawsuit becomes a weapon of attrition.

The Origins of the Term

The acronym "SLAPP" was coined in the nineteen eighties by two University of Denver professors, Penelope Canan and George W. Pring. Their original definition focused on lawsuits targeting communications made to influence government action—essentially, attempts to punish people for exercising their constitutional right to petition the government.

This right to petition has ancient roots. It predates the Magna Carta, granted by Edgar the Peaceful, King of England, in the tenth century. The principle is fundamental to democracy: citizens must be able to communicate with their government without fear of retaliation. Barriers between the governed and the governing undermine the entire system.

Over time, the understanding of SLAPP suits has expanded. In California, the definition now covers speech on any matter of public interest, not just communications with government officials. The core insight remains: using litigation to silence legitimate public discourse is an abuse of the legal system.

The Defamation Trap

Defamation claims are the traditional vehicle for SLAPP suits, and there's a structural reason why.

In the English common law tradition, defamation operates under what's called "reverse onus." This means that once someone alleges a statement is libelous, the burden shifts to the defendant to prove it isn't. You might expect the plaintiff to have to prove falsity, but historically, the law worked the other way around.

This creates a powerful asymmetry. A SLAPP plaintiff doesn't need to prove their case—they just need to make an accusation that forces the defendant to mount an expensive defense. Even if the defendant's statements were completely true, proving that truth in court requires evidence, witnesses, and legal expertise. All of which cost money.

The defamation framework essentially provides a ready-made mechanism for harassment through litigation.

Fighting Back: Anti-SLAPP Laws

Recognition of the SLAPP problem has grown steadily, and legislatures around the world have begun fighting back.

The United States

As of two thousand twenty-three, thirty-three American states, the District of Columbia, and Guam have enacted statutory protections against SLAPP suits. These laws vary considerably in scope and strength, but they share a common structure.

The basic mechanism works like this: a defendant who believes they've been targeted by a SLAPP suit can file a special motion to dismiss at the very beginning of the case. If the court agrees that the lawsuit targets protected speech on a matter of public concern, the burden shifts to the plaintiff to show they have a reasonable probability of prevailing. If they can't meet that burden, the case gets thrown out—and the plaintiff may have to pay the defendant's legal fees.

California's law, enacted in nineteen ninety-two, was an early and influential model. It provides for a "special motion to strike" that defendants can file at the outset of litigation. The law explicitly covers writing or speech made in connection with any governmental proceeding, speech in a public forum about issues of public interest, and essentially any other petition or speech conduct concerning public issues.

Some states have gone further and adopted versions of the Uniform Public Expression Protection Act, a model law developed by the Uniform Law Commission to create consistent protections across jurisdictions. Eleven states have now adopted some version of this act.

There's an important limitation, though. These protections only apply in state courts. Plaintiffs who want to avoid anti-SLAPP laws can sometimes file in federal court instead, where they may face fewer obstacles. Forum shopping, again, becomes a strategy.

Canada

Canada's three most populous provinces—Quebec, British Columbia, and Ontario—have all enacted anti-SLAPP legislation, though the path hasn't always been smooth.

Quebec was actually the first Canadian jurisdiction to act, amending its Code of Civil Procedure in two thousand nine. The Quebec approach is distinctive because the province's constitution generally subordinates itself to international law, meaning the International Covenant on Civil and Political Rights applies. That treaty only permits liability for "arbitrary and unlawful speech," providing an additional layer of protection.

Ontario's journey was more circuitous. By two thousand ten, the attorney general had issued a major report identifying SLAPP suits as a serious problem—but initially, nothing was done. It took until two thousand fifteen for the province to finally enact the Protection of Public Participation Act, after years of advocacy from environmental groups, journalists' organizations, civil liberties associations, and nurses' unions.

British Columbia's experience was even more troubled. An early anti-SLAPP law was actually repealed before a new Protection of Public Participation Act was unanimously passed in March two thousand nineteen. Activists there, particularly the British Columbia Civil Liberties Association, have continued pushing for broad interpretations of the law.

Europe

The European response has been building momentum. In April two thousand twenty-four, the European Parliament approved an anti-SLAPP directive—a legally binding tool that member states must implement.

This followed years of growing concern about press freedom within the European Union. A two thousand twenty resolution expressed "deep concern about the state of media freedom" and the "abuses and attacks still being perpetrated against journalists and media workers in some Member States because of their work." The resolution called for minimum standards against SLAPP practices across the EU.

The directive has limitations. Due to the European Union's constrained legal competences, it only covers civil and commercial matters with cross-border implications. Purely domestic cases fall outside its scope.

The Council of Europe has also weighed in, adopting a set of recommendations that go further than the EU directive. These cover criminal and administrative matters, provide indicators for identifying SLAPP suits, and specifically address protection for anonymous public participants—recognizing that some speech is only possible when speakers can remain unidentified.

The United Kingdom

In the UK, there's been increasing anti-SLAPP activism led by a coalition including English PEN, Index on Censorship, the National Union of Journalists, and Amnesty International. The country's defamation law, rooted in centuries of common law tradition, has historically been plaintiff-friendly, making it a popular destination for libel tourism—the practice of suing in whichever jurisdiction offers the most favorable legal environment.

Australia

The Australian Capital Territory enacted the Protection of Public Participation Act in two thousand eight, protecting conduct intended to influence public opinion or promote action on issues of public interest. A party who starts or maintains a proceeding for an improper purpose can be ordered to pay a financial penalty to the territory itself.

High-Stakes Cases

The abstract principles come alive in specific battles.

Greenpeace Versus Energy Transfer

In February two thousand twenty-five, Greenpeace went on trial against Energy Transfer in North Dakota. The energy company had sued Greenpeace back in two thousand seventeen, claiming the environmental organization "spread misinformation that incited the protests and severely damaged its ability to run its business."

Greenpeace considers the lawsuit a textbook SLAPP. But North Dakota lacks anti-SLAPP legislation, meaning there's no quick mechanism to dismiss a case that may be primarily designed to punish and deter environmental activism. The case has dragged on for years, consuming resources that Greenpeace might otherwise have devoted to its advocacy work.

The Noir Canada Affair

A particularly stark illustration of SLAPP dynamics emerged from Quebec. The publisher Écosociété released a book called "Noir Canada" that documented relationships between Canadian mining corporations, armed conflict, and political actors in Africa. Mining company Barrick Gold sued.

Using Quebec's anti-SLAPP provisions, a court ruled in two thousand eleven that Barrick Gold had to pay one hundred forty-three thousand dollars to the book's three authors and publisher to prepare their defense against what the court called a "seemingly abusive" lawsuit.

But here's the thing: despite that ruling, "Noir Canada" was never actually published again. The authors ultimately settled the case, and according to them, they did so solely to end a three-and-a-half-year legal battle. The SLAPP, in a sense, worked. The book was effectively suppressed, even though the legal system recognized the lawsuit as abusive.

Trump Versus the Des Moines Register

In May two thousand twenty-five, Iowa's Republican governor signed an anti-SLAPP law. The immediate consequence was striking: Donald Trump dropped his federal lawsuit against the Des Moines Register—a case widely considered a SLAPP suit—and refiled at the state level.

The episode illustrates both the power and the limitations of anti-SLAPP protections. The new Iowa law made the federal lawsuit untenable, but by moving to state court, the plaintiff could continue the legal pressure. The machinery of litigation remains available to those willing to adapt their strategy.

The Broader Landscape

SLAPP suits exist within a larger ecosystem of legal tactics that can be used to suppress speech.

When SLAPPs involve copyright claims rather than defamation, they become a form of what's sometimes called "censorship by copyright." The plaintiff alleges unauthorized use of copyrighted material, forcing the defendant to either remove the content or face expensive litigation over fair use and other defenses.

Libel tourism—suing in foreign jurisdictions with more favorable laws—represents another vector. In two thousand ten, President Obama signed the SPEECH Act, which offered protections against foreign libel judgments that wouldn't be enforceable under American First Amendment standards. The law addressed cases where plaintiffs would sue in the UK or other jurisdictions known for plaintiff-friendly defamation laws, then try to enforce those judgments in the United States.

Congress has considered federal anti-SLAPP legislation as well. The SPEAK FREE Act of two thousand fifteen aimed to create national protections, but it never received a vote. The patchwork of state laws remains, with their varying standards and the ever-present opportunity for forum shopping.

The SLAPPback

Some jurisdictions have added an extra layer of deterrence: the ability for SLAPP defendants to counter-sue their tormentors.

In California, under certain circumstances, defendants can bring what's colloquially known as a "SLAPPback"—a lawsuit against the original plaintiff for bringing a meritless case designed to suppress protected speech. The potential for facing not just dismissal but affirmative liability creates a meaningful disincentive for would-be SLAPP filers.

This flips the dynamic. Instead of the defendant absorbing all the risk and cost, the plaintiff must consider whether their litigation strategy might backfire catastrophically.

Why It Matters

At its core, the SLAPP problem is about asymmetry—the disparity between those with resources to litigate indefinitely and those who cannot afford even a successful defense.

Democracy depends on the ability of citizens to speak freely about matters of public concern. Journalists must be able to investigate powerful institutions. Neighbors must be able to oppose developments they believe harmful. Activists must be able to advocate for causes they believe in. Scientists must be able to publish research that challenges commercial interests.

When litigation becomes a tool for silencing such speech, something has gone wrong with the legal system. The courts exist to resolve genuine disputes, not to serve as instruments of harassment.

The proliferation of anti-SLAPP laws represents growing recognition of this problem. But as the examples above illustrate, these laws remain incomplete. They don't exist everywhere. They can be circumvented through careful choice of forum. And even where they exist, they don't always prevent the underlying damage—sometimes a case can be dismissed, but only after years of litigation have already extracted their toll.

The lawsuit designed to lose can still achieve its goal, even when it loses.

Looking Forward

The trend is toward greater protection. More states are adopting anti-SLAPP statutes. The European Union has acted. International bodies are issuing recommendations. Courts are becoming more sophisticated at identifying and dismissing abusive litigation.

But the underlying tension remains. Defamation law serves a legitimate purpose—protecting people from genuinely harmful falsehoods. The challenge is distinguishing between legitimate claims and those brought primarily to punish and silence critics. That line can be difficult to draw, and plaintiffs skilled at obscuring their intent can sometimes make their harassment look like ordinary litigation.

The term "SLAPP" has entered the legal vocabulary precisely because naming the phenomenon makes it easier to recognize and resist. When a lawsuit fits the pattern—targeting speech on public matters, filed by a party with vastly greater resources, featuring the telltale signs of litigation designed to exhaust rather than prevail—courts and legislators now have a framework for responding.

That framework continues to evolve. The next decade will likely see federal anti-SLAPP legislation in the United States, broader adoption of protective measures in Europe, and increasing international cooperation on the issue. The battle between those who would use litigation to silence and those who would speak freely is ancient. What's new is the growing sophistication of the defenses.