Suppression and the law

Published in Peace News, December 1995, p. 11, with minor changes.


Brian Martin

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Have you written a letter to the newspaper or a government official, signed a petition or attended a public meeting? These are routine activities in liberal democracies. Yet, amazingly, many individuals have been sued for large amounts of money for engaging in such forms of political participation.

US farmer and environmentalist Rick Webb made a complaint to the Environmental Protection Agency about pollution from a coal company. The company sued him for defamation, seeking $200,000 in damages.

In British Columbia, forest products company MacMillan Bloedel sued 34 anti-logging protesters and an environmental organisation for a range of charges, including conspiracy, interfering with business and harming the company's reputation.

The Helensburgh District Protection Society, near Sydney, Australia, has campaigned against urban expansion in the local area by writing letters to local government, circulating petitions and publishing articles. Members of the society were sued by developers for losses they incurred due to rezoning of land for environmental protection.

There have been literally thousands of cases like this over the past decade, especially in the United States. Vested interests, typically corporations, take legal action against citizens whose activities are a threat to their objectives. They have sued for defamation, conspiracy, nuisance and loss of earnings, among other charges.

The effect of legal actions of this sort is to intimidate those who are sued. In many cases they reduce their activism or profile. It doesn't actually matter whether the corporation has much prospect of winning the case in court. The cost and mental stress of defending against legal charges with one's life savings at stake are often enough to inhibit people from further activism.

Corporations often get their way through "normal channels", which can include having connections with government officials. But sometimes people are able to mobilise enough popular pressure to threaten or thwart corporate plans. That's supposed to be what democracy is all about. Legal action serves to move an open political debate into a contest in a courtroom.

The law is supposed to be neutral, but in practice it serves better those who have more money. A wealthy corporation can easily afford to pay for legal costs and to lose a case, whereas an individual's or community group's savings may be severely depleted just pursuing the same case.

Penelope Canan and George Pring, academics at the University of Denver, have been studying cases of this sort for many years. To describe them, they coined the term Strategic Lawsuits Against Public Participation or SLAPPs. Canan and Pring note that in the United States, various forms of public participation are explicitly protected by the Constitution, including "circulating petitions, writing letters to public officials, reporting violations or making complaints to government bodies, conducting elections, filing lawsuits, testifying at public hearings, demonstrating in public, and conducting boycotts intended to influence governmental action." These actions are protected as part of the right to petition government.

In other countries, constitutional protections may not be so explicit or extensive, but the same general processes apply. The term SLAPP can be applied in a loose sense to the use of legal actions by vested interests to intimidate individuals or groups that speak out in a way that threatens those interests.

There are two main dangers posed by SLAPPs: being intimidated and being diverted. As noted before, the potential economic costs due to legal expenses and/or a loss in court are daunting, and are enough to persuade many individuals to retract their statements or keep a low profile. The other major danger is being diverted from the main issue into engagement with legal issues.

How to respond? For some, acquiescence may be advisable simply because putting lots of money and energy into a legal battle may not be as productive as other activities. But it is important that at least some people actively oppose legal intimidation, so that it does not become too effective.

One method is to file a countersuit alleging misuse of the legal system for the purposes of harassment. This is called a SLAPP-back. In many cases countersuits have discouraged corporations from pursuing their original suits. SLAPP-backs can be an effective tactic, but as part of a wider picture they reinforce the false picture of the law as a neutral arena.

A more general approach is to push for laws against SLAPPs. Canan and Pring have helped to stimulate a movement for anti-SLAPP legislation, and many US states have passed laws of this sort. This approach may not work so well in other countries and does not deal with the cases that do not fit the precise specifications of a SLAPP.

Ironically, those who are least intimidated by SLAPPs are people with little money. Legal harassment often works to discourage middle-class protesters with children and mortgages, leaving the young and unemployed to take the lead in protests.

Community organisations are vulnerable to legal action, since legal costs or an adverse judgement can virtually wipe out their funds. Organisations that expect to come under attack should carefully examine strategies to survive. This might include minimising assets, finding sympathetic lawyers willing to provide help at little or no cost, and putting different organisational functions into formally different organisations. A risk here is going through contortions in order to avoid legal actions. An organisation should not lose sight of its goals. Simply surviving is not enough.

Rather than focussing exclusively on preparing methods of defence, it is vital to plan a positive campaign. The key is mobilisation of support. This means getting the original message, plus information about legal harassment, to actual and potential supporters, through letters, articles, leaflets, media stories, and the like. The goal of the SLAPPer is to discourage open opposition. The counter-strategy of publicity aims to mobilise even more opposition.

The McLibel case illustrates how a legal action can backfire. McDonald's sued London Greenpeace activists Helen Steel and Dave Morris for defamation. Steel and Morris were prepared to fight the case in court. Being full-time activists with little money, they had little to lose and so were not intimidated. By acting as their own legal advocates, they avoided the problem of hiring expensive legal counsel. Most importantly, though, they have used the case to generate widespread awareness of both their original claims about McDonald's and the legal harassment.

The strategy of popular mobilisation through publicity is effective because most people are opposed to corruption, special favours for insiders, dangers to the public, squashing of dissent, police brutality and many other abuses that are exposed through free speech.

Suppression through legal actions poses a serious problem for activists. Insights from nonviolent action campaigns need to be pulled out and applied to struggles involving the legal system.