Rule 11's big-mouthed little brother: how a federal anti-SLAPP statute would reproduce Rule 11's growing pains.

• Author: Devine, James W.
• Position: Strategic Lawsuits Against Public Participation

"A solution cannot strengthen the constitutional rights of one group of citizens by infringing upon the rights of another group." (1)

INTRODUCTION

Jan Cole, an elementary school teacher in suburban Denver, never thought her classroom lessons could cause such a stir. Wishing to cultivate new perspectives among her students at Malley Elementary School, Cole began teaching progressive and innovative lessons with Vivaldi flute compositions and cultural discussions including topics of meditation and firewalking. (2) While Cole was a respected veteran teacher in the community, in 1984 the lessons soon became unpopular among families that disagreed with using such "occult," "New Age" philosophy, and "instruments of the Devil" in the classroom. (3) The Lehmann family soon pulled their child out of the school and began a campaign to oust Cole's teaching and methods from the local school. (4) The protests began with phone call campaigns and later led to letter writing and door-to-door organizing among local parents. (5) Accusations of "New Age" ideology soon stretched to witchcraft and Satanism before there was any consideration of a possible slander lawsuit. (6)

"If I ran for President of the United States, I would expect criticism ... but as a teacher you're usually sensitive, caring.... And this hurts a lot," Cole told interviewers following the experience. (7) "I mean, we aren't set up politically to take this sort of thing.... I mean, all of my belief systems were challenged, and I'm still in limbo about a lot of things." (8)

Although Cole never intended to sue anyone it soon became clear to her that the harassment would not stop unless she did something. (9) As the pressure mounted, Cole considered suicide and began attending counseling sessions and realized a lawsuit against the offending parents could be the only answer. (10) Finally after a long trial, a jury awarded Cole with $110,500 in 1987 against two families that had led organizational efforts against her. (11)

While it would appear that in this instance the good guys won, or at least a teacher who played nice and fair finally got her day in court against those intending to harm her, the outcome of litigation would likely be very different if it occurred today. (12) Currently a strong likelihood exists that Cole's lawsuit would be considered a SLAPP, (13) or a Strategic Lawsuit Against Public Participation, meant specifically to deter parental petitioning involvement in the schools. Such a designation would likely defeat her claim at the pleading stage without the aid of discovery and would likely force her to pay all attorney costs. Depending on the jurisdiction of the controversy, Cole's rights to pursue her career quietly could take an entirely backseat priority to parental rights to pursue protest activity lacking all forms of civility. If the same events happened today, a lawyer may actually be less inclined to take such a case in some jurisdictions out of fear of a fierce anti-SLAPP statute. The anti-SLAPP statute operates to prevent frivolous lawsuits against people for political and petitioning actions in the community in an effort to prevent a "chili" on petitioning rights. This chill on a plaintiff's claim reoccurs as a side effect to the court's attempts to police frivolous claims without knowing how to protect valid claims.

The problem anti-SLAPP statutes are meant to solve is not a new one. Since courts were first opened to offer relief to those suffering losses in civil matters, they have faced the challenge of trying to screen frivolous claims that clog dockets and waste time. Solutions to bar these claims are often sought, but the law of unintended consequences often makes the solution more unbearable than the problem first addressed.

The anti-SLAPP statute is one such provision designed to restrict frivolous lawsuits meant to discourage free speech, public participation, and discussion over public issues. Such lawsuits often interfere with the administration of an open and honest government working with a goal of citizen involvement. (14) While the anti-SLAPP statutes of varied jurisdictions respond to the rise in litigation known as SLAPPs, they too bring side effects. While the statutes are well intentioned in that they mean to protect vocal parties from cumbersome litigation, the broadened scope of the statute in some jurisdictions has caused abuse at odds with their benign purpose.

Federal Rule 11 is another restriction on frivolous claims and could be seen as a general precursor to the anti-SLAPP statute. (15) Congress created Rule 11 among the Federal Rules in 1938 as a way for the private bar to prevent attorneys from filing lawsuits and claims "for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation" in federal courts. (16) As the rule has evolved through the decades, its effectiveness and importance has ebbed and flowed over time as well. When Rule 11 was amended for a broader application against frivolous claims, (17) it carried a nasty side effect that brought a lack of civility in the legal profession as well as a duplication of issues to litigate. (18) While intending to reduce frivolous claims, it actually expanded filings.

Currently, the statutes engender abuse by affording broad application at the expense of the very activity it was designed to protect: the right to petition the government to redress grievances. While there is no constitutional right to bring a frivolous claim to a court, this restriction brings its own chill on First Amendment rights as valid claims brought to court are barred, penalized, and punished by an anti-SLAPP motion, or worse, would-be plaintiffs never assert claims for fear of penalties of having to pay opposing party's attorney fees.

Such issues could be experienced nationally in the not so distant future since Tennessee Congressman Steven Cohen introduced the Citizen Participation Act of 2009. (19) As a federal anti-SLAPP statute, it would likely have broad implications if any similar bill passes as Cohen initially proposed it to protect both citizen rights of petitioning the government and free speech. (20) Cohen's proposal gives good cause to take a special look at the development of the statute within many jurisdictions and consider the intended and unintended consequences of such statutes.

This Note evaluates the intent, effects, and evolution of the anti-SLAPP statute and its prospective application as a federal law that would shield public speech and participation from litigation primarily meant to chill First Amendment rights. Part I discusses the origins of anti-SLAPP statutes and their development over time as jurisdictions chose to implement them. Part II provides an overview of Rule 11's history and the successes and failures in policing frivolous claims. Part III compares Rule 11 and the anti-SLAPP statute by examining the effectiveness of each while also evaluating the risk of duplicating litigation issues and the inadvertent creation of barriers closing out valid claims at the courthouse door. Finally, Part W focuses on the effects a broad interpretation of a federal anti-SLAPP statute would have in reproducing Rule 11's growing pains and discouraging valid claims--claims the First Amendment should protect.

1. THE ANTI-SLAPP STATUTE'S BIRTH AND EARLY YEARS

   The archetypal SLAPP lawsuit usually involves a defendant petitioning the government in some manner, which causes a corporate plaintiff to sue them in retaliation. (21) Suppose Tom, a local resident, attends the local planning board meeting to criticize a mini-mall proposal that SLAPP Co. submitted for approval to build in Tom's neighborhood. While Tom may have legitimate concerns with the project that SLAPP Co. proposed for his neighborhood, the company might sue Tom for several frivolous claims such as defamation, tortious interference with contract, or civil conspiracy to intimidate Tom into silence, while also deterring others from speaking out. The archetypal SLAPP suit is a frivolous claim that is never filed for the purpose of succeeding on the merits in a courtroom. The real objective of the lawsuit is to achieve political success by silencing opponents or spitefully attack a successful protestor who managed to prevent a project. (22) Lawsuits like these proliferated in the 1970s and 1980s, and experts in law and sociology believe a heightened citizen involvement in government during that period of time caused a litigious explosion, which created the need for anti-SLAPP statutory protections. (23)

   1. The Pring-Canan SLAPP Solution

      In reaction to SLAPP lawsuits that often scared defendants into silence, professors George Pring and Penelope Canan developed a procedural mechanism to dismiss frivolous SLAPP claims in a way that would not cause any excessive cost to the victimized defendant. (24) By this model statute, if an unwitting defendant were SLAPPed with a frivolous lawsuit, she would be able to present a special motion to strike the complaint on grounds that the action against her arose from speech that the First Amendment protects. (25) The effect of the motion shifted the burden for the plaintiff to prove he would likely succeed in his action by clear and convincing evidence. (26) The plaintiff must meet the burden without any aid of discovery since the statute providing the motion specifically stays discovery while it is noticed and considered. (27) If the plaintiff could not meet the burden, the action would be dismissed and the plaintiff would be ordered to pay the defendant's attorney fees in answering the lawsuit. (28)

      The statute was designed to protect what Pring and Canan considered the most time-honored right among citizens in the Western world: the right to assemble and petition the government for redress of grievances, a right anecdotal with the cornering of King John at Runnymede. (29)

      While the Petition Clause is rarely cited...