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By J. DeVoy

Although SLAPP suits are uncommon events, they influence real-world, extradjudicial interactions between different entities – especially in disputes.  Groups and individuals can leverage tacit threats, insinuations and asymmetries of power to silence their opposition without ever going to the courthouse.  Similarly, just as the broad effects of SLAPP suits have trickled down to apply outside of litigation, so too will the benefits of the Citizen Participation Act, which provide defendants with remedies for lawsuits that seek merely to silence them.

I have been SLAPPed in my own way.  In 2006, a professor circulated letters to the entire faculty and administration of my undergraduate institution, accusing others and me, all editors of a newspaper we created, of being racist, proponents of genocide, and bigoted; he further demanded sanctions against us.  None of this came to pass.  The school’s administration sought our silence by offering an apology from the professor — an apology that never came.  (He did, however, make a vague statement to us that included the phrase “teachable moment” before it was popular.)  I therefore have no compunction about sharing this story, especially in light of this month’s focus on SLAPP issues.

I. Three Friends and I Discover Journalism and the First Amendment.

In April 2004, four mouthy and egotistical friends came together at my undergraduate college to do something bold and new.  I was one of them.  The year had been a frustrating one: We had been lectured ad nauseam by the Dean of Students about our widespread distribution of a list titled 10 Things You Can’t Say on Campus – a brief screed against administrative waste, blatant quotas and bloated sports programs – and encountered difficulties getting our voice heard in the existing student newspaper.  Combining our talents, time and connections, we decided to create our own newspaper.

Armed with $500 from the Leadership Institute and Microsoft Publisher ’98, our paper – we’ll call it The Herald – was born.  Intended to have a libertarian/conservative bent and take-no-prisoners attitude, we considered nothing to be sacred.  We called out the school’s residence life office for confiscating and destroying one editor’s beer pong table.  The student government’s incompetence was ridiculed when its largest event of one school year, a concert, went far over budget; the event was mocked in a satire piece that concluded in the stage’s collapse and demise of the entire featured band.  (Many tears and hurt feelings from the student government ensued; we laughed.)  We tackled other issues, such as campus visits by controversial figures, including Syrian diplomats.

The Herald was a thrilling endeavor, but a taxing one.   The paper grew to proportions the four driving members never truly anticipated.  The Herald‘s alumni include members of the bar, law students, accountants, bankers, political operatives, teachers and other graduate students.  While being good training for meeting deadlines, conducting research and producing good writing under considerable pressure, the paper was an intense grind.  Yet, because of our collective diligence,
 our publication became the most-read – and most controversial – on campus.  Just a few weeks away from its sixth birthday, the publication lives on today.

II.  The High Price of Free Speech.

In early 2006, one professor (say, Professor Pissant, or just “Prof. P”) took umbrage at our content.  Instead of ever identifying these issues to us, or reaching out to any member of the paper, he took matters into his own hands.  Prof. P sent a letter accusing me and other editors of racism and advocating “genocide” to every member of the faculty, distributing physical copies of it into every professor’s individual mailbox.  Prof. P then distributed another letter throughout the administration, to academic deans and the college’s President himself.  In this letter, Prof. P  sought sanctions against me and other editors, including mandatory diversity “sensitivity” training.

On a college campus, the only thing more serious than being accused of racism is being accused of rape.  Rape allegations, however, generally are not made by tenured professors.  Additionally, they are not hand-delivered to the inboxes of every faculty member and do not originate on the desk of the institution’s President.

My fellow managing editor at the time, now a law student at another school, worried about the consequences with me.  In addition to affecting law school admissions, any repercussions would have effects on our character & fitness applications in any state.  We were convinced we had done no wrong.  Fortunately, so was our faculty advisor.

Our paper’s advisor, a former S.D.N.Y. clerk, supporter of free speech and mentor to us all, acted as our surrogate in dealing with the school’s administration.  Without any convincing on his part, the administration concluded that our exercise of First Amendment rights through the paper was not racist or bigoted in any way.  Much damage had been done, though, through Prof. P’s letter to every member of the school’s faculty.  Our class selection for the subsequent 2006-2007 school year, our senior year, was limited by fear of other professors’ prejudice and reprisal based on Prof. P’s accusations.

The college’s administration promised us a meeting with Prof. P, but it was never scheduled.  We heard, but could never confirm, that he refused to meet with us out of fear that those named in his letter would bring a defamation suit against him.  While a defamation claim against Prof. P might have succeeded, it wouldn’t accomplish what we sought: To ensure Prof. P, or any other tenured professor, would never again abuse his or her power over students in the way he had.

III.  Finally, a Remedy?

To this day, it’s shocking that Prof. P, a tenured professor, used his power as he did against students only 20 years old.  While not the same as a SLAPP suit, the basic principles are identical: One party with all the power can hold a hapless defendant hostage for offending its delicate sensibilities, however meritorious and constitutionally protected the defendant’s speech.  More shocking is that this affair occurred within the collegiate context, where free inquiry, debate and rigorous analysis are supposed to be celebrated, rather than silenced through fear and intimidation.

A Federal anti-SLAPP law like the Citizen Participation Act wouldn’t address this particular situation.  But it would provide momentum for groups like the Foundation for Individual Rights in Education to further fight against campus speech codes and other restrictions on student expression.   This law could also embolden victims of such out-of-court misconduct to file harassment claims and expose these abuses of power.  Ideally, the effects of this bill will extend far beyond the pages on which it is printed.

The greatest effect of a Federal anti-SLAPP law, though, would be to remove the perverse incentives that exist for this exploitative censorship in the first place.  Congress’s passage of the Citizen Participation Act would send a clear message that such conduct is unacceptable.  And, while individual free speech would still be protected, the bill would dissuade people from trying to silence opposition in a manner that could blossom into litigation.

While every contributor to The Legal Satyricon is opposed to SLAPP suits, I have a personal interest in seeing the Citizen Participation Act become law.  Beyond writing to congressional representatives, informing everyone with an interest in this bill about how it can affect them is a great way to start.  Hopefully, this bill’s effects will not be limited to the courts.

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