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Minnesota's SLAPP law is slapped down, and the impact is likely to be profound

Not only is the Minnesota law now invalid, but the ruling is likely to have a domino effect, cited as precedent for striking down similar laws in many other jurisdictions.

Individuals, businesses, and organizations that value their reputations — and which ones don't? — are exulting in a ruling of the Minnesota Supreme Court that facilitates their ability to protect and vindicate their rights. But it also may result in a constriction on freedom of expression for citizens in this state.

Marshall H. Tanick
MinnPost photo by Jana Freiband
Marshall H. Tanick

The decision in late May struck down a Minnesota statute that severely restricts many types of defamation claims. The measure, known as the SLAPP law, imposes significant barriers for claimants asserting harm to their reputations, due to libel in written, electronic, or video form, or slander done orally.

The acronym stands for Strategic Litigation Against Public Participation (SLAPP). Under the 23-year-old measure, comparable to ones in many other states, individuals, businesses, and other entities that maintain that their reputations have been impugned by statements made to government authorities are not able to pursue legal actions to vindicate their reputation and collect monetary damages for the harm done to it unless they can convince a trial court judge by "clear and convincing" evidence that their positions have merit. This constitutes an elevated, and formidable standard from the normal "preponderence of evidence" rule followed in most civil lawsuits and borders on the heightened "beyond a reasonable doubt" standard for criminal prosecutions.

6-1 ruling says it's invalid

But the Supreme Court, by a 6-1 margin, dealt the law a fatal blow, ruling that it is invalid under the Minnesota Constitution because it deprives claimants of the right to a jury trial. 

The case, entitled Leiendecker v. Asian Women United of Minnesota, arose out of an unusually bitter dispute dating back more than a decade between the ousted head of a Minneapolis-based nonprofit organization and her husband, an attorney for the group at one time, asserting a number of charges and countercharges of wrongdoing. In defending itself, the organization raised the SLAPP law, claiming that some of its statements and actions were aimed at "procuring favorable government action," the term under the SLAPP law that may bar a civil lawsuit if a judge determines that the allegedly offending conduct falls within that category.

The law is often invoked in lawsuits as a shield by individuals and organizations, often neighborhood groups, that have tried to block or modify construction projects, rezoning efforts, abusive landlord practices, or other developments by raising opposition in various forums, including before government bodies. These clashes often lead to defamation claims asserted by the parties against whom the accusations are made. The law is geared to preventing or deterring them from trying to suppress legitimate efforts by citizens opposing their plans or practices.

But the measure is protean and comes up in other forms as well, like the Leiendecker case.

It also is potent because, when raised, it brings a lawsuit to a screeching halt, allows a judge to decide whether the case can go forward to a jury trial, and if, successful requires the opposing party to pay the legal costs of the other side. The draconian remedies are intended to dissuade parties from suing for defamation and other related civil claims for fear that their lawsuits will be blocked by the SLAPP and they may have to cough up the legal fees for the other parties against whom the case is brought. 

1980s advocacy

Minnesota is one of about 30 states (plus the District of Columbia and the Territory of Guam, no less) with SLAPP laws. They are the product of advocacy in the 1980s by a pair of law professors at the University of Denver, who formulated proposed legislation to deal with the problem posed by individuals and businesses, usually wealthy ones, threatening to sue or actually suing those who have taken part in government activities aimed at curbing what the protesters feel are abusive practices by the malefactors. Minnesota was one of the first to jump on the bandwagon, enacting its measure in 1994, and its language and interpretation by the courts made it one of the broadest and most stringent ones in the country.

Under the Minnesota measure, similar to those in other jurisdictions, once a claim is brought, the party being sued can obtain an immediate halt to the litigation, prevent further inquiry, and seek, and often obtain, dismissal of the case by establishing that their conduct prompting the lawsuit was aimed at "procuring favorable government action," a broad phrase that covers a gamut of activities, ranging from making a phone call, writing a letter or sending an email to an elected official; making a report to law enforcement authorities; or showing up at a municipal government meeting. Under the measure, the lawsuit cannot continue unless the proponent is able to scale the high, frequently insuperable barrier of "clear and convincing" evidence that the claimant ultimately will win the case.

The Supreme Court found the law constitutionally defective because, by halting lawsuits and permitting judges to throw them out before trial, it potentially deprives claimants, seeking to restore reputation or obtain other relief, the opportunity to present their cases to a jury, as guaranteed by the state constitution (and the federal one as well). Thus, the majority of judges concluded, the law cannot be enforced and the lawsuit allowed to proceed. They sent it back to the Ramsey County District Court, where it started years ago, for what may be considerably more contentious and costly litigation.

The ruling was hardly surprising. A number of lower courts, including the trial judge and intermediate appellate tribunal in this case, had reached the same conclusion. Other jurists in different cases around the state also had held that the law is unconstitutional for similar or additional reasons, but the Leiendecker case was the first to yield that result from the state's highest court. Because that decision is now binding precedent, the SLAPP law is no more and, given its inherent infirmities, is unlikely to be revived at the legislative level.

Familiar scenario: Advocacy group is sued

While this case involved the fallout of an employment relationship, a much more familiar scenario occurs when an individual or group opposed to some type of governmental action — like granting a building permit for a construction, undertaking environmentally sensitive work, or rezoning property — is sued for defamation by the proponent of the project. Another typical situation is when an individual or organization that is the subject of complaints to law enforcement or regulatory authorities sues the complainant for defamation.

In these instances, the party being sued has resorted to the SLAPP law as a means of cutting off the lawsuit at the outset and then having it thrown out of court because the claimant is unable to mount the high burden of "clear and convincing" pre-trial level of proof. Thus, the parties seeking to vindicate their reputation or obtain other relief never get the opportunity to present their cases to a jury. It was this dilemma that that Supreme Court, like others before it, felt was improper in striking down the measure.

Domino effect likely

Not only is the Minnesota law now invalid, but the ruling is likely to have a domino effect, cited as precedent for striking down similar laws in many other jurisdictions. It also could scuttle a SLAPP measure at the federal level, which has been stalled in Congress since 2009 and is not likely to be enacted anytime soon, if ever. 

For progressives, liberals, and free-speech enthusiasts of whatever political ideology, the decision is one of mixed blessings. By removing the obstacles to suit, it makes it easier for those whose reputations have been sullied to seek vindication and rectify wrongdoing committed against them without having to surmount artificially high barriers.

There are others, however, including some in the media, who view it less charitably. They regard the dismantling of the SLAPP shield as unfavorably removing barriers to lawsuits for defamation and similar claims by powerful entities and affluent individuals, which may have the effect of silencing critics or those opposing their practices for fear of being slapped around in costly litigation. The chilling effect of exposure to such lawsuits may, they fear, impede freedom of expression and impair the free flow of information to the public.

Whichever way it plays out, the demise of Minnesota's SLAPP law is likely to have profound and long-lasting impact on public discourse in this state.

 Marshall H. Tanick is a Twin Cities employment and constitutional law attorney.

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Comments (1)

Minnesota's SLAPP law is slapped down, and the impact is . . .

I’ve lived the consumer side of this SLAPP topic, and I can think of no one better than Marshall Tanick to champion curtailing the SLAPP statute. Marshall Tanick was 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 Marshall Tanick was mindful of that when his suit on behalf of my 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 Marshall Tanick on behalf of his client, I deleted my rate-your-doctor site postings and sent confirmation emails to Marshall Tanick. 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 Marshall Tanick 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.”