LOUISIANA SLAPPS BACK: AN ANALYSIS OF LOUISIANA'S ANTI-SLAPP LAW, ITS AMBIGUITY, AND HOW THE STATE SHOULD REMEDY IT.

• Author: Mouriz, Gabriella
• Position: Strategic lawsuits against public participation

TABLE OF CONTENTS INTRODUCTION 22 I. THE HISTORY OF SLAPP 24 II. A COMPARISION OF STATE MODELS 25 A. "The California Model" 25 B. "The Base Model" 27 C. "The SLAPP On the Wrist Model" 28 III. THE LOUISIANA MODEL AND ITS GENESIS 29 IV. The Problem: What is a Public Issue? 31 V. What Other States Have Done 35 A. California's Guiding Principles 35 B. Statutory Definitions: Connecticut, Kansas, and Texas 37 CONCLUSION 39 INTRODUCTION

They will be sued for such "all-American" activities as circulating a petition, writing a letter to the editor, testifying at a public hearing, reporting violations of the law, filing an official complaint, lobbying for legislation, or otherwise communicating their views. - George W. Pring and Penelope Canan, SLAPPs: Getting Sued for Speaking Out. (1) In November of 2019, John Oliver, the host of Last Week Tonight, a late-night satirical news program, devoted twenty-six minutes of his show discussing SLAPP lawsuits. (2) During the segment, Oliver revealed that he and his show had been involved in a lawsuit that lasted over two years. (3) Interestingly, this lawsuit was filed by the CEO of the nation's largest privately-owned coal company, Bob Murray. (4) This suit was filed as a result of Oliver's 2017 segment in which he detailed "Murray's... staunch objection to laws protecting miner's safety, and the company's possible culpability in a deadly mine collapse." (5) In the lawsuit, Murray listed what he had found objectionable, specifically statements made by Oliver that referenced Murray's oversight of a company whose mine collapse in Utah resulted in the death of nine people. (6) In 2018, a judge dismissed the case after the attorneys for HBO argued that Oliver's statements "were either factual... or obviously satirical, both of which are protected by the First Amendment." (7) Oliver noted that winning the case was never Murray's goal because it was a SLAPP suit. (8) Oliver continued by illustrating the number of SLAPP suits that Murray had filed against numerous individuals speaking out against his practices. (9) He has filed at least nine lawsuits against various journalists and news organizations who have criticized his practices as unethical. (10) Additionally, Murray has sued an editorial cartoonist over an unflattering cartoon of himself. (11) Lastly, Murray has sued an Ohio couple for defamation after holding a small, 20 person protest outside his offices. Although this couple ultimately won their case against Murray, the lawsuit tied them up in litigation for years, costing thousands of dollars. (12) Known as SLAPP lawsuits, individuals like Murray, every day across the nation, use these suits for their power and influence to create a culture of fear and bullying within the courts. (13) Lawsuits like these "make people think twice before reporting on [someone's] business." (14)

What is SLAPP, and why is it important that you know about it? SLAPP is an acronym for Strategic Lawsuits Against Public Participation. The term was originally coined by law professors George W. Pring and Penelope Canan in the late 1980s to describe an upwards trend in litigation filed to prevent or chill speech. (15) A SLAPP suit is a strategic and retaliatory civil suit filed against individuals, organizations, union activists, and more specifically, to stifle public debate of recognized issues or violations by the powerful. (16) Thus, these suits arise out of a party's speech about an issue of public concern. (17) Often times SLAPP suits can be found disguised as civil lawsuits for defamation, invasion of privacy, nuisance, etc. (18) For the plaintiffs, winning these suits is never truly the goal. (19) They are not seeking to remedy an injustice but, instead, their true purpose is to intimidate and silence their critics by burdening them with the costs of litigation. This is accomplished through extensive discovery requests, depositions, and appeals that attempt to drain their target's resources. In addition to the burden placed on their current targets, they create an oppressive influence on potential dissenters who have the desire to avoid costly litigation. (20)

Part II of this Comment explores the history of SLAPP lawsuits and Part III identifies the differences between Anti-SLAPP legislation among the states. Part IV examines Louisiana's anti-SLAPP statute and its genesis within the Louisiana Legislature. Finally, Part V of the comment identifies the ambiguity within Louisiana's statute and Part VI considers how other states have remedied the ambiguity in their Anti-SLAPP legislation.

1. THE HISTORY OF SLAPP

   Law professors Pring and Canan first identified these lawsuits in the late 80s, after beginning the first nationwide study of SLAPP lawsuits. They identified in their book, SLAPPs: Getting Sued for Speaking Out, that virtually all SLAPP lawsuits were filed after 1970 because litigation used to prevent public activism was largely unknown. (21) Every year since then, Pring and Canan have identified hundreds of these lawsuits being filed. (22) When the study first began, they noticed that SLAPP lawsuits pervaded a variety of political activities. Specifically, they studied civil lawsuits filed against private persons and groups for communicating their views to a government body or official on an issue of public interest (23) They found people being sued for reporting violations of law, writing to government officials, testifying before government bodies, circulating petitions for signature, engaging in peaceful boycotts and demonstrations, and much more. (24) SLAPP suits are not isolated. People file these lawsuits in every state and at every government level. (25)

   "SLAPPs send a clear message: that there is a "price" for speaking out politically. The price is a multimillion-dollar lawsuit and the expenses, lost resources, and emotional stress such litigation brings. This is a message with import for every American, activist or not. As these suits become an increasing (and increasingly known) risk for the ordinary citizen who decides to speak out on a public issue, SLAPPs raise substantial concern for the future of citizen involvement or public participation in government, a fundamental precept of representative democracy in America." (26) In their study, Pring and Canan studied a total of 228 cases. (27) The cases broke down into issue areas. They involved urban/suburban development and zoning, complaints against public officials and employees, environmental/animal rights, civil/human rights, neighborhood problems, and consumer protection. (28) It's become clear that SLAPP suits are an attack on First Amendment, specifically the petition clause (29), protected activity. Professor Pring gave the following example of how a government body or official may use these suits: "One moment a citizen is testifying against a city zoning permit for a proposed housing subdivision; suddenly, "city hall" becomes "courthouse," and "zoning" becomes "slander." (30) Pring and Canan argued that the best solutions "lie with our courts-the very institution designed to protect individual liberties and political rights" to limit the chilling effect of SLAPPs. (31)

2. A COMPARISION OF STATE MODELS

   As of June 2019, thirty states including the District of Columbia passed Anti-SLAPP statutes, often referred to as "SLAPP-back procedures." (32) Anti-SLAPP legislation acts as a protective mechanism against these meritless lawsuits providing for early dismissal and, in some states, reimbursement of legal fees. (33) They seek to address this abuse of the litigation process by plaintiffs. (34) Although many federal and state courts have acknowledged this abuse, the scope of these statutes varies greatly across the country. (35) Generally, states adopted one of three models of anti-SLAPP legislation, which I describe as the California model, the Base model, and the SLAPP on the Wrist model. These models are differentiated primarily by the scope of protection they offer, with the highest level of protection offered by the California Model and the lowest by the SLAPP on the Wrist model.

   1. "The California Model"

      Fifteen states have strong statutes that are written broadly to protect First Amendment conduct made in connection with virtually all issues of public interest. (36) The states with the most protection are in the top tier of anti-SLAPP legislation and fall into group one. These states are California, Colorado, Nevada, Oklahoma, and Oregon. (37) In 1992, the California legislature enacted one of the most powerful anti-SLAPP laws, Cal. Civ. Proc. Code 425.16. (38) The California legislature found that "it is in the public interest to encourage continued participation in matter of public significance, and this participation should not be chilled through the abuse of the judicial process." (39) California enacted this law to give people a preemptive legal strike against lawsuits designed to silence them.

      The statute provides for a motion to strike a complaint if a defendant can successfully show that the lawsuit arises from "any act of that person of a person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue." (40) The motion specifically stays all discovery upon its filing and until a ruling on the motion has been made. (41) If successful, a defendant has a quick and inexpensive end to litigation. Since its passage, only Colorado, Nevada, Oklahoma, and Oregon have written their anti-SLAPP laws this broadly. (42)

      The ten other states with the strongest laws follow closely behind but with some differences that warrant it a sub-group of their own. The states in the subgroup are Connecticut, Georgia, Illinois, Indiana, Kansas, Louisiana, Road Island, Tennessee, Texas, and Vermont. (43) For example, it is unclear whether Texas allows for defendants to recover for mandatory court fees and costs. (44) The one uniformity between all...