Attempt to use “SLAPP” statute slapped down

October 25, 2011

The Minnesota Court of Appeals has rejected a northwestern Minnesota farmer’s attempt to use Minnesota’s often-overlooked anti-“SLAPP” statute to put an end to a lawsuit that was filed against him after he refused to let an oil-pipeline company enter his property.

“SLAPP” stands for “strategic litigation against public participation.”  Anti-SLAPP laws let defendants file motions to dismiss lawsuits that are filed in response to citizens’ attempts to influence governmental projects.  Classic examples are when people get sued for speaking at a public meeting or for passing out leaflets critical of a development project.  Blogging about government might be protected too, but that remains to be seen.

Few lawyers even know the anti-SLAPP law exists.  The theory behind the law is that if people can get sued for speaking out for or against development projects, we’ll all be chilled into silence and in the end there will be no freedom of speech.

But speech was not at issue in the northwestern Minnesota case.  The farmer placed hay bales on his property in an attempt to hinder the pipeline company’s access to the Alberta Clipper pipeline, which is being built to deliver oil from Canada to the Twin Ports.  The farmer’s argument was that because the pipeline company was a public-service corporation, the company essentially was part of the government — and the hay bales were designed to procure favorable governmental action.

The Minnesota Court of Appeals would have none of it, and it let the case against the farmer go forward.  Similar cases around the country generally stress what the purpose of SLAPP laws is generally understood to be:  to ensure freedom of speech.


One Response to “Attempt to use “SLAPP” statute slapped down”

  1. I’ve lived the consumer side of this SLAPP topic. Minnesota lawyer Marshall Tanick was earlier quoted in a Star Tribune newspaper article August 27, 2001. It said in part: “If a company sues, alleging simple business disparagement or perhaps defamation, its goal isn’t necessarily to win,” said Marshall Tanick, a First Amendment expert . . . “The strategy is to force the other person to incur huge legal expenses that will deter them and others from making such statements,” he said . . . “yet very few (cases) go all the way to trial and verdict,” Tanick said.

    I suspect that if Minnesota had a stronger SLAPP statute, more readily known by lawyers in 2010, I might not have been sued from 2010 through 2013 for criticizing the bedside manner of a Duluth doctor.

    Unlike other SLAPP statutes that protect any public interest speech, Minnesota’s only protect(ed) speech aimed at government processes. I think opposing counsel was mindful of that when his suit on behalf of his plaintiff addressed only my Internet comments and not my letters to government bodies.

    A good SLAPP statute does not prevent an insulted doctor or plumber from getting his jury trial, but it does make his suit get scrutinized for validity more quickly – particularly in Minnesota, which maintains the quaint custom of hip pocket law suits. During four years of depositions, discovery, hearings, and motions, I never once spoke to a judge.

    My four years of association with the defamation process was a distressing war of financial attrition for my family. The plaintiff’s first contact with me was a letter that said in part that he had the means and motivation to pursue me. The suit cost me the equivalent of two year’s net income – the same as 48 of my car payments plus 48 of my house payments. My family members had to dip into retirement funds to help me.

    We were overwhelmed by my being sued after posting a consumer opinion, and we were shocked by the rapidity with which it happened. My mother and wife preferred no discussion, because they didn’t want to think about it. Conversation with my father only reminded him of his anger over this situation. My siblings and children didn’t often bring it up, because they didn’t know how to say anything helpful. I was demoralized by four calendar years of being called “Defendant Laurion” in public documents.

    While being sued for defamation I was called a passive aggressive, an oddball, a liar, a coward, a bully, a malicious person, a Boy Scout who did no good deed, and a zealot family member. I was said to have run a cottage industry vendetta, writing 19 letters, and posting 108 adverse Internet postings in person or through proxies.

    After receipt of a threat letter from opposing counsel on behalf of his client, I deleted my rate-your-doctor site postings and sent confirmation emails to opposing counsel. Not only was I sued, but I was denigrated as a liar in a demand letter to my insurance provider of 25 years, in spite of the fact that I didn’t carry liability insurance.

    Since May of 2010, postings on the Internet by others included newspaper accounts of the lawsuit; readers’ remarks about the newspaper accounts; and blog opinion pieces written by doctors, lawyers, public relations professionals, patient advocates, and information technology experts. Dozens of websites by doctors, lawyers, patient advocates, medical students, law schools, consumer advocates, and free speech monitors posted opinions that a doctor or plumber shouldn’t sue the family of a customer for a bad rating. These authors never said they saw my deleted ratings – only the news coverage.

    Medical peer newsletters or magazines that interviewed the plaintiff did not approach me. Websites maintained by doctors for doctors or lawyers for lawyers often caused an inference that I was a zealot family member or somebody who had asked about my dad’s chances and then shot the messenger. Generally, however, those websites echoed other websites in advising public relations responses other than a lawsuit – for fear of creating the “Streisand Effect.” As a retired layman, I brought far less resources to the battle of financial attrition.

    I’ve learned that laws about slander and libel do not conform to one’s expectations. I’ve read that online complaints are safe “if you stick to the facts.” That’s exactly the wrong advice. I did not want to merely post my conclusions. I wanted to stick to my recollection of what I’d heard. I don’t like to read generalities like “I am upset,” “I think the doctor did not treat my father well,” “I think he was insensitive,” “he did not spend enough time in my opinion.” However, such generalities are excused as opinion, hyperbole, or angry utterances. I heard opposing counsel tell the Minnesota Supreme Court that if I had stuck to such generalities, they’d not have been considered defamatory. If one purports to say what happened, factual recitations can be litigated. The plaintiff must prove the facts are willfully misstated, but the defendant can go broke while waiting through the effort – they can “incur huge legal expenses that will deter them and others from making such statements.”

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