Eternal vigilance is the price of ... um, well, guess we
can't say that anymore. We might get sued.
Mostly when we think of threats to free speech, it's government actions or
laws we have in mind -- the usual bizarre stuff like veggie libel laws or
attempts to keep government actions or meetings secret from the public.
Sometimes you get a political case, like Gov. George W. Bush's effort to
stop a Bush-parody site on the Internet. The parody, run by a 29-year-old
computer programmer in Boston named Zack Exley, annoyed Bush so much that he
called Exley "a garbageman" and said, "There ought to be limits to freedom."
(That's not a parody -- he actually said that.)
Bush's lawyers warned Exley that he faced a lawsuit. Then they filed a
complaint with the Federal Elections Commission demanding that Exley be
forced to register his parody site with the FEC and have it regulated as a
political committee.
This fits in with the four instances in which faculty members at the Bush
School of Government and Public Service in our fair state were reprimanded
at the behest of Bush associates for saying less-than-glowing things about
our governor.
But this is petty stuff compared to corporate efforts to curb free speech.
SLAPP suits (for "strategic lawsuits against public participation") are a
serious menace to free speech. The latest example is a real prize: The
Consumers Union, publisher of Consumer Reports, has already spent $10
million defending itself against a lawsuit filed by Isuzu Motors Ltd.
because, eight years earlier, Consumer Reports rated the Isuzu Trooper "not
acceptable" for safety reasons. And the case has not yet reached trial.
And that is the real menace of SLAPP suits. It's not that corporations win
them, but that they cost critics so much money that the critics are
silenced -- and so is everyone else who even thinks about raising some
question about a corporate product or practice.
Isuzu claims that CU's reports are "not scientific or credible," but the
company's internal memos state that the "lawsuit is a PR tool" and "when
attacked, CU will probably shut up." According to a study by two University
of Denver law professors, "Americans by the thousands are being sued, simply
for exercising the right to speak out on public issues, such as health and
safety."
New York Supreme Court Judge J. Nicholas Cobella told PR Watch in Madison,
Wis.: "The longer the litigation can be stretched out ... the closer the
SLAPP filer moves to success. Those who lack the financial resources and
emotional stamina to play out the 'game' face the difficult choice of
defaulting despite meritorious defenses or being brought to their knees to
settle. ... Short of a gun to the head, a greater threat to First Amendment
expression can scarcely be imagined."
PR Watch also quoted George Pring and Penelope Canan, authors of the 1996
book "SLAPPs: Getting Sued for Speaking Out."
"Initially, we saw such suits as attacks on traditional 'free speech' and
regarded them as just `intimidation lawsuits.,'" the two authors say. "As we
studied them further, an even more significant linkage emerged: The
defendants had been speaking out in government hearings, to government
officials or about government actions. ... This was not just free speech
under attack. It was that other and older and even more central part of our
Constitution: the right to petition government for redress of grievances,
the 'Petition Clause' of the First Amendment."
Some examples of SLAPP suits from PR Watch:
In Las Vegas, a local doctor was sued for his allegation that a city
hospital violated the state's cost-containment law.
In Baltimore, members of a community group faced a $252 million lawsuit
after circulating a letter questioning the property-buying practices of a
local housing developer
In West Virginia, an environmental activist was sued for $200,000 for
criticizing a coal-mining company for activities that were poisoning a local
river.
In Pennsylvania, a farmer was sued after testifying to his township
supervisors that a low-flying helicopter owned by a local landfill operator
caused a stampede that killed several of his cows.
In Washington state, a homeowner found that she couldn't get a mortgage
because her real-estate company had failed to pay taxes owed on her house.
She uncovered hundreds of similar cases, and the company was forced to pay
hundreds of thousands of dollars in back taxes. In retaliation, it sued the
woman for slander and dragged her through six years of legal harassment
before a jury found her innocent.
In Missouri, a high-school English teacher was sued for $1 million after
complaining to a weekly newspaper that an incinerator burning hospital waste
was a health hazard.
Unlike the average citizen, Consumers Union has the resources to defend
itself against the Isuzu suit. It's a nonprofit organization, and Consumer
Reports accepts no advertising, lest there be any appearance of bias, and
never grants permission for any commercial use of its name or test results.
It accepts no contributions from corporations or law firms or even
individuals if the check bears a business imprint. The 60-year-old magazine
is supported by the generations of smart consumers who always consult
Consumer Reports before making any major purchases.
As we have seen with tort deform, it is not difficult to close off access
to the courts for certain kinds of lawsuits. I can't think of a more
meritorious and constitutional cause.
Molly Ivins is a columnist for the Fort Worth Star-Telegram. To find out more about Molly Ivins and read features by other columnists and cartoonists, visit the Creators Syndicate web page at
www.creators.com. COPYRIGHT 2000 CREATORS SYNDICATE, INC.
