Nonprofit, independent journalism. Supported by readers.


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

The law is often invoked in lawsuits as a shield by individuals and organizations that have tried to block or modify construction projects, rezoning efforts, or other developments by raising opposition in various forums.

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. 

Article continues after advertisement

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.


If you’re interested in joining the discussion, add your voice to the Comment section below — or consider writing a letter or a longer-form Community Voices commentary. (For more information about Community Voices, see our Submission Guidelines.)