Social Media takes on SLAPP-happy litigation Posted By Daniel Kaiser, Esq. on July 1, 2010
Meet Justin Kurtz, an undergrad with more than 12,000 friends. Facebook friends. 12,000?! Why the popularity? Apparently Kurtz knows how to take a “SLAPP”.. a Strategic Lawsuit Against Public Participation that is. Or at least Kurtz and his 12,000 friends hope he knows how.
The story here is about a clash of two titans—the corporate or government plaintiffs willing to litigate to force a vocal critic to back down vs. the little guy channeling the power of social networks.
Mr. Kurtz states that, although he held a parking permit, a local towing company disabled his car alarm, towed his car from his apartment complex, and levied a $118 fine for the car’s release. Counsel for the towing company said the permit wasn’t visible. Either way, this kind of thing tends to irritate a car owner who feels wronged. Looking for a way to get his story out, Kurtz created a Facebook page called “Kalamazoo Residents against T&J Towing.”[1] Enter the power of social media: within two days of its creation 800 people had joined the group. It might have stopped there, but where Kurtz saw free speech, the towing company saw defamation… to the tune of $750,000 in damages.
The criticism against SLAPP suits is that often the plaintiff doesn’t necessarily even expect to win their fight in court—they expect to use their deeper pockets to pressure the defendant to clam up and avoid an expensive lawsuit. The strategy quite often works, but in this case, with the help of social media, the equation seems to have shifted. Kurtz’s collection of friends grew rapidly from 800 to over 12,000, and other social media outlets (Google maps Reviews , Yahoo! Local, and Yelp) have been enlisted with endless stories (true or otherwise) of apparent encounters with the plaintiff. Kurtz himself claims to have done nothing wrong: “The only thing I posted is what happened to me.”[2]
All this grass-root attention lends support to The Citizen Participation Act (H.R. 4364),[3] a federal bill sponsored by Representative Steve Cohen of Tennessee and Representative Charlie Gonzalez of Texas. The purpose of this proposed legislation is to enable a defendant who believes himself or herself to be the victim of a SLAPP to petition for dismissal of the suit. As enumerated by the Public Participation Project, the bill includes the following provisions:
1. Immunity for Petition Activity (for all petition activity performed without knowledge or reckless disregard of falsity);
2. Protections for Petition and Speech Activity (in connection with an issue of public interest);
3. Federal Removal Jurisdiction (in consideration of the fact that roughly half the states have no similar anti-SLAPP provisions, to allow for removal to federal jurisdiction when the defendant claims the defense of immunity under the pending Act);
4. Special Motion to Quash (to protect anonymous speech when the anonymous speaker’s personally identifying information is sought);
5. Fees and Costs (including reasonable attorney’s fees, for the party who prevails on a special motion to dismiss or quash);
6. Bankruptcy Non-Dischargeability of SLAPP and SLAPPBACK Awards (making fees awarded non-dischargeable in bankruptcy for successful SLAPP defendants and for defendants who are allowed to recover damages incurred in defending against a SLAPP); and
7. Exemptions (non-applicability of the bill to claims brought solely in the public interest or from advertising speech, to protect against abuse of the statute).[4]
[1] http://www.facebook.com/group.php?v=wall&gid=288159562692
[2] http://www.nytimes.com/2010/06/01/us/01slapp.html
[3] http://www.anti-slapp.org/?q=node/16
[4] Id.
Post A Comment