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Global Warning - Mar 1, 2005 - Printable Version
- Have You Been SLAPPed Lately?
by Robin Buckallew
In recent months, we have heard a great deal from the Bush administration and the mainstream media about the stifling effect of trivial lawsuits on industry in this country. The trivial lawsuit is blamed for everything from high malpractice insurance rates to the high price of lawyers. We have been informed that without immediate tort reform the entire economy will go into a nosedive as litigious Americans sue for silly things - like being killed by boxes crashing on their heads at Home Depot, for instance. Pretty trivial to complain about a thing like that. In addition, we have heard a great deal of wailing and gnashing of teeth over the so-called "activist judges" that are making law in the courts of the land. This, too, is something that needs immediate remediation in order to preserve the law and the dignity of the land. Although I really hate to agree with the Bush administration on anything, I will agree that there is definitely a trend toward the filing of trivial lawsuits that could destroy the very fabric of our society if this is allowed to continue. But, contrary to the presentation in the popular media, these lawsuits aren't being filed by common folks like you and I, seeking to get a bigger piece of the pie by unjustly accusing some poor, honest hard-working corporation of malfeasance. No, those cases are relatively few and far between. The lawsuits I am speaking of are being filed not by you and me, but against you and me. They are being filed by the very corporations that are sounding the alarm. While the lawsuits being filed might seem trivial on the surface, the intent and the effect is far from trivial. The purpose is nothing other than a stifling of the voices of Americans speaking out for safer food, cleaner water, fresher air. This particularly perfidious type of lawsuit is known as a SLAPP (Strategic Lawsuits Against Public Participation). And all across the country, more and more people are reeling in surprise and astonishment as they find themselves getting SLAPPed simply for exercising a right they have taken for granted. The principle behind a SLAPP is simple. These are lawsuits that are being filed when citizens attend public meetings and speak out on their own behalf against corporate polluters. They are being filed when people publish some criticism of an industry. There are whole books and websites devoted to how to file SLAPPs (also the same on how to protect yourself against SLAPPs). As the general public has become more aware of such issues as air and water pollution, food contamination, and other ways in which they are being subjected to poisons not of their choosing, they have been showing up at public hearings for corporate permits. They have been filing class action suits against large offenders. They have been publishing articles and books and staging protests and marches. In short, America is fighting back. And when America began to fight back, the free market fundamentalists discovered something frightening - in a truly free market, where people are truly free to choose and have information about the products they are selecting, profits can begin to suffer. When a small group of your neighbors show up at the Chamber of Commerce meeting or the City Council to protest some previously obscure pollutant being dumped in your community, suddenly you become aware. You might change your buying habits. You might even join the protests yourself. And then, profits suffer. Corporations felt like they'd been slapped in the face. So, they began to SLAPP back.
Are you aware that when a company is issued a permit to release large amounts of pollutants in your air or water, this permit requires a public hearing? You are entitled to attend, to speak your mind. You can read the proposed permit in advance on the web. You can study up on the pollutants of interest, find out what they might do to you, your young children, or your aged parents - not to mention your cat, your dog, or your parakeet. You can attend the meeting and speak your mind. You can send your comments in writing to the agency in charge of issuing the permit. Now, however, there is one catch. If you should do such a thing, it is possible that the corporation in question will slap you with a lawsuit, charging you with defamation. Did you stand up last week in the City Council and say you don't want arsenic dumped in your local stream? You might be SLAPPed. Did you write a letter to the local newspaper protesting the building of a toxic waste dump outside of town? You might be SLAPPed. Wait a minute, I hear you howling. Isn't it my right to speak up? Isn't it my right to state my opinion? Absolutely. You are totally, legally and firmly within your right. The corporation is almost sure not to win such a suit. And they know it. But they also know something else - very few ordinary citizens have the resources available to fight such a charge in court. Just to sort through the legal tangle they will put you in could eradicate your retirement savings. Your family could end up bankrupt. You could find yourself emptying your children's college fund. You might eventually win, if you ever get to court. But the win will be an empty one - as empty as your bank account.
The real purpose behind SLAPPs is not to win a judgment against you. The real purpose is to establish a high profile of expensive cases and bankrupt citizen activists to chill the climate of dissent. You aren't really the target - the real target is your neighbor, who hasn't spoken up yet. And after watching your nightmare, probably never will. I call to the witness stand one high profile case in this genre -Texas Cattlemen vs. Oprah Winfrey. Once upon a time, back in 1996, following a show on Mad Cow Disease, Oprah spontaneously exclaimed that her hamburger eating days were over. The cattle industry was quite enraged by this - especially since the price bottomed out on beef the very next day (is Oprah that powerful? WOW! I think I want to be her - when Oprah talks, people listen). Unfortunately for Oprah, Texas (as well as 12 other states) has a law against food defamation. Yes, you can be charged with a crime in Texas courts for daring to criticize your veggies for not being fresh enough, for noticing that your fish tastes, well, fishy - or for mocking your burger. The case went to court. Oprah won. The cattlemen appealed. Oprah won again. They appealed again. Oprah won again. The courts have finally heard this all the way to the top court possible (the decision in the federal court of appeals finalized it and kept it from being eligible for Supreme Court intervention). Oprah won. She can choose to eschew hamburgers publicly if she so chooses. Good, you say, that means we're fine. Yes, in a sense. If you have the millions Oprah has, you're fine. The case cost Oprah a larger fortune than most of us will ever see in our lifetime. And the win by Oprah hasn't slowed down the SLAPPs at all. The companies know that very few of us possess even a fraction of the resources of America's talk show queen. If you can get the case to court, they know you will probably win. But they are also aware that you probably will never go to court, after they bankrupt you by drowning you and your lawyers in a sea of paper - you'll settle. You'll shut up. You'll go to your corner, sit in time out and be quiet - forever. Not only that, your neighbors will join you.
There are a couple of other legal maneuvers that the large corporations that run America have been making recently. One of these involves the Bill of Rights. You heard me, the Bill of Rights. Our Bill of Rights, designed to protect us from the whims of unscrupulous governments and those who would stifle us. This particular legal maneuver is directed not at the average citizens, but at the regulations that protect them. The Fifth Amendment of the Bill of Rights contains a clause that states "nor shall private property be taken for public use, without just compensation". This is commonly referred to as the "takings" clause. Most of us are aware of this clause only when eminent domain kicks in, and the city decides they want our property for some government building or a parking lot of some sort. Then, we know that they have to pay us a fair price for it. Now, the courts are being asked by some of the largest polluters in the country to interpret that clause in a very broad way. They are being asked to interpret that clause as meaning that anytime the government passes an environmental regulation designed to protect our air, water or food from contamination, the corporations that are affected by the regulation must be compensated for any potential lost profits that come from complying with the regulation. In short, they must be compensated for behaving like a good citizen. Overall, the corporations expect this interpretation to have a chilling effect on environmental regulations, safety regulations, labor laws, and a myriad of other rulings that might eventually come into play. You want us to dump our hazardous waste safely and legally? It'll cost you. You want us to clean up our smokestacks? It'll cost you. You want ergonomics regulations so people don't have repetitive motion injuries? It'll cost you. The possibilities are endless. You want us to pay a minimum wage? It'll cost you. Eventually, the government will quit passing any regulations to protect the consumer, because the government will not be able to pay compensation in all the "takings" claims that are being filed. On this issue, my friends, the courts are playing ball. There have been several decisions handed down that indicate the courts are willing to interpret this clause in exactly this way. So now, an amendment designed to protect you from the government simply moving in and taking your property away is going to be used to prevent the government from protecting you from someone taking your life and health away. I can almost hear the Founding Fathers weeping.
So, how do we fight against all this legal mumbo-jumbo being thrown at us by the giants of industry? The pollutocrats? Easy - file class action lawsuits. It is the only way an ordinary citizen can possibly afford to challenge these behemoths. By joining together into a large mass of humanity that have all been injured, and pooling our resources, hiring teams of lawyers to go against their teams of lawyers, and paying only a portion of the overall cost. Share the burden. There's only one problem with that. A new bill being considered in Congress would take away our ability to file class action lawsuits. Technically, we would still have the right. But the bill would move class action suits to federal courts. In federal courts, the judges are unwilling to hear class action suits where the plaintiffs are from several states (as they nearly always are), because of the problem with applying the laws of any single state. Also, the federal docket is extremely overfilled already. The best you could expect would be an extremely long delay as the wheels of justice failed to turn for you. In reality, the corporations figure that most class action lawsuits would be summarily dismissed by the federal judges. That is what usually happens with cases of this nature in federal courts. This, coupled with the tort reform that would cap punitive damages, means that the corporations would be able to get away scot-free with nearly any nasty action they care to perpetrate on the American public. In recent years, many battles for environmental protection have been won in the court system. Many of our rights to clean air, water and food have been protected by the courts. We have had to fight these battles one at a time, case by case, and have won many victories. Without class action lawsuits, many of these regulatory cases would never have been brought before the court at all.
Back in 1941, in a Sam Spade movie (The Maltese Falcon), Humphrey Bogart told Peter Lorre, "When you're slapped, you'll take it and like it". These large corporations expect us to take it - they don't really care if we like it. Our only recourse is to keep on standing up. Keep on fighting back. We need to stand behind our neighbors when they get SLAPPed. We need to realize that if America were to mobilize in force, stand up for environmental protections and regulations, let corporate America know that we insist on clean air, clean water, safe food - well, would it be possible for them to SLAPP all 300 million of us? It's time to slap back.
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