‘Court-assisted terrorism’? How the powerful can muzzle free speech for about $300

By: 
The Philadelphia Inquirer
Published on:
May 24th, 2019
ILLUSTRATION BY CYNTHIA GREER/PHILADELPHIA INQUIRER

On a chilly May afternoon, under a colorless sky, Joe Schiavo parked himself on a bench inside a leafy Old City pocket park that he once helped revive, while a 5,000-gallon fountain gurgled behind him. And then he started talking about terrorism.

Not capital-T, bullets-and-bloodshed terrorism, but something that Schiavo calls “court-assisted terrorism,” meritless lawsuits that powerful entities file to stifle their critics or cripple them financially. The tactic has been around long enough to attract its own acronym — SLAPP, for strategic lawsuits against public participation — and earn the undying enmity of First Amendment advocates across the country.

Pennsylvania offers the flimsiest of SLAPP protections, something Schiavo discovered firsthand when he served as the vice chair of the Old City Civic Association’s zoning committee. The volunteers who led the association, which formed in 1973, had the unglamorous task of making sure developers followed the city’s zoning rules as they tried to convert parcels of the historic neighborhood into investment opportunities. And for that, the association sometimes got sued.

One company sued the civic association for more than $3 million in 2012, blaming the group for a development deal that fizzled. A pub owner sued the association that same year after Old City officials opposed his plans for a new restaurant during a zoning board hearing. Neither lawsuit was successful, but that was almost beside the point.

Old City was dropped by its insurance carrier, and its members were left with a Sophie’s choice dilemma: Carry on and risk losing their houses and savings if the association was sued again, or fold. They decided to disband in 2013.

“For the cost of a filing fee, probably less than $300, they actually shut down the civic association,” Schiavo said of the organization’s litigious opponents. (The fee for a non-jury trial complaint in Common Pleas Court is $333.) Now he works with Old City Green, a small group that focuses on inoffensive projects like rehabbing the Girard Fountain Park on Arch Street near Fourth.

But this isn’t an issue that concerns only neighborhood do-gooders; a well-executed SLAPP lawsuit can force dissenting voices of all types to go silent. Rape survivors, social-media provocateurs, #MeToo advocates, and the parents of crime victims have all found themselves on the receiving end of what seemed like retaliatory lawsuits. President Donald Trump, meanwhile, has fantasized publicly about weakening libel laws to make it easier to sue journalists who are critical of him.

“Often times, you see SLAPP filers who are attempting to use the legal system to bully their critics, to harass them, to force them to retract their statements,” said Evan Mascagni, the policy director of the Public Participation Project, a freedom-of-speech coalition pushing for the creation of federal anti-SLAPP laws.

In February, State Sen. Larry Farnese introduced a bill that would give Pennsylvania a meaningful anti-SLAPP law, something that states like California and Texas have long had on their books. This marks the third time Farnese has rolled out such a bill, which tells its own frustrating story.

Track enough free-speech lawsuits filed by prominent figures, and it becomes clear that the where is sometimes more important than the why.

Earlier this year, Devin Nunes — the Republican congressman from California who once claimed that Hillary Clinton worked with Russia to get dirt on Trump — leveled a $250 million defamation lawsuit against Twitter and a pair of anonymous Twitter accounts, @DevinNunesMom and @DevinCow, the latter of which poked fun at Nunes’ often-touted family farming history with juvenile tweets like “Mom, Devin is passed out, sobbing, on the manure pile.”

Nunes accused Twitter of trying to undermine public confidence in him, and interfere with his investigation into Clinton.

More significant, he requested that a judge compel Twitter to reveal the identities of the people running the Twitter accounts, describing the information as a “matter of great public concern.” If Nunes is successful, it could be a watershed moment of sorts: How long would other elected officials wait before they sought to unmask their own anonymous keyboard critics?

Twitter was incorporated in Delaware, and its headquarters are in San Francisco, while Nunes lives in California and represents an area that includes portions of Tulare and Fresno Counties.

His lawsuit, though, was filed in Virginia. And Nunes turned to Virginia courts again recently, this time to file a $150 million defamation lawsuit against the California-based McClatchy Co. over a story one of its newspapers, the Fresno Bee, published last year about sex and drug-filled parties that took place on a yacht owned by an affiliate of a winery that Nunes partially owns

The connection? Virginia has fairly weak free-speech laws. California has some of the nation’s strongest. Defendants in California can file a motion to strike if they believe they have been hit with a SLAPP lawsuit, and promptly get a hearing in front of a judge, who decides whether the case has merit, or if it should be tossed, with defendants getting compensated for reasonable legal costs.

“You don’t want the subject of a story to use their deep pockets to threaten a publication with libel or defamation lawsuits, and use the court system to rack up legal fees, and then have somebody self-censor,” said Rick Blum, the policy director of the Reporters Committee for Freedom of the Press.

Public figures have to clear a high bar to win a defamation lawsuit; they must prove that a defendant acted with “actual malice” — knowing something was false but sharing or publishing it anyway, according to the landmark 1964 U.S. Supreme Court case, New York Times v. Sullivan.

“I think most public officials understand that they will be criticized, and that a certain amount of feedback from the public is healthy,” Blum said.

Nunes isn’t the only public figure who has resorted to suing his critics.

In January, State Sen. Daylin Leach (D., Montgomery) filed a defamation lawsuit in Philadelphia Common Pleas Court against Cara Taylor, a Lehigh County woman who accused him of coercing her to perform oral sex on him in 1991 — when Taylor was 17 and Leach was a defense attorney, representing her mother in an attempted-murder case.

Leach, a liberal who has long been known as a staunch defender of women’s rights, vehemently denied Taylor’s claim. He also sued Colleen Kennedy and Gwen Snyder, #MeToo advocates who shared Taylor’s account on social media and labeled him a rapist in some of their posts. (Senate Democrats have hired a law firm to investigate Taylor’s claims.)

In his lawsuit, Leach referred to Taylor as a “serial liar” — Taylor lied on the witness stand during her mother’s trial, and was convicted of perjury — and noted that he once testified under oath that he’d never had a physical relationship with her. All three women, he argued, were trying to exploit the #MeToo movement and sabotage his career.

The lawsuit has backfired on Leach so far. Democratic Committees in Montgomery County and Delaware County have called on him to resign, as have multiple elected officials, including Gov. Tom Wolf and Lt. Gov John Fetterman, who described Leach’s decision to sue Taylor, Kennedy, and Snyder as “appalling” in a tweet.

Leach has refused to step down, and still has supporters who chide his accusers on Facebook and Twitter.

“Senator Leach’s lawsuit against Gwen and Colleen is a classic SLAPP suit. His complaint admits he wants to ‘punish the defendants for their conduct’ and ‘deter them and others’ from engaging in ‘like acts in the future,’ ” said Michael Berry, attorney for Snyder and Kennedy.

“But, in the United States, people have the right to speak out on matters of public concern. That is exactly what Gwen and Colleen did — they spoke out against an elected official accused of engaging in past sexual misconduct.”

Joseph Podraza, Leach’s attorney, disputed Berry’s characterization. “Our lawsuit has been brought to vindicate Daylin Leach from a falsehood that has damaged his reputation, and try to reestablish and salvage his reputation. It’s the complete opposite of a SLAPP lawsuit."

Already, Taylor — who, in court filings, said she’s been able to obtain only dead-end jobs because of her felony conviction — has sought financial donations to help cover her legal bills.

Campaign-finance records show that Leach, meanwhile, used his political action committee to pay $10,000 to Podraza in 2018, and $5,695 to attorney George Bochetto, who briefly represented Leach after The Inquirer reported in 2017 that former staffers had accused the senator of inappropriate dialogue or touching.

That sort of financial imbalance has been a hallmark of other controversial lawsuits. In 2017, multiple actresses told the Los Angeles Times that they had been sexually assaulted or harassed by Brett Ratner, the director of the films Rush Hour and X-Men: Last Stand.

After the story published, a former talent agency employee named Melanie Kohler wrote on her Facebook page that she’d been raped more than a decade earlier by Ratner at the home of a Hollywood studio executive.

Ratner, whose films have grossed more than $2 billion, responded to the deluge of allegations by suing just one person: Kohler, a scuba-diving instructor who lives in Hawaii.

Despite the fact that the alleged rape occurred in California, where Ratner lives, he filed the lawsuit in Hawaii, which has weaker anti-SLAPP laws.

“For years and years, no one ever brought these cases, based on the understandable and correct assumption they’d never go anywhere because of the First Amendment,” Roberta Kaplan, Kohler’s attorney, recently told The Inquirer. “They really are anti-free speech suits. … Ultimately, they can’t succeed, but they bring the lawsuits because of the sheer aggravation and harassment value on the women who are sued.”

Kaplan was so disturbed by the financial gap between victims who are sometimes sued by their deep-pocketed abusers that she cofounded the Time’s Up legal defense fund, which has raised more than $22 million, attracting donations from Taylor Swift, Oprah Winfrey, and other celebrities.

Ratner withdrew his complaint last fall.

 

Read this at the Philadelphia Inquirer.