Muzzle on Public Debate
The Consumers Union, the publisher of Consumers Report, spent $10 million in court costs defending a 1996 article rating Isuzu Motors Ltd.’s Trooper “not acceptable” for safety reasons, and the case has yet to reach the trial stage. The expense will probably not break CU’s back, but it would make a ruling in the magazine’s favor a pyrrhic victory. Isuzu challenges CU’s tests as “not scientific or credible.” But, as its internal memos in CU’s possession indicate, the company hopes its lawsuit will help “shut up” CU in the future and meanwhile generate free publicity for the company. Isuzu could come out winning no matter what the final ruling. Shutting up critics through litigation has become somewhat of an epidemic in America, and it is having a chilling effect on public debate.
Two professors at the Denver University Law School found “Americans by the thousands are being sued, simply for exercising the right . . . to speak out on public issues,” such as health and safety. The new breed of what they call “strategic litigation against public participation,” or SLAPP, the professors conclude, is sending an ominous message to anyone wishing to air a grievance. And that’s not all. More than a dozen states have passed laws giving food producers a special right to sue anyone speaking ill about their products. Colorado’s “produce slander” law even makes it a crime.
TV talk show host Oprah Winfrey, the most notable victim of such law, found herself in court for saying on the air she would not eat hamburgers because of the possible contamination of U.S. beef with so-called mad cow disease. She won the first round, but the decision was appealed and a new lawsuit was filed against her. Even mere threats of litigation have stopped the publication of books on safe eating habits, and TV stations have turned down programs on chemicals used in growing crops.
Some states are fighting back. More than a dozen of them have adopted anti-SLAPP statutes to prevent lawsuits against those exercising their 1st Amendment right to speak on public issues, file complaints with government agencies, write to newspapers or petition for a rule. Such laws, while safeguarding the public right to speak out, do not prohibit legitimate private claims for damages.
California was the first state to adopt an anti-SLAPP statute, in 1992. It has been amended twice since then, and the latest amendment (AB 1675), which would streamline the procedural rules in such cases, was unanimously passed both houses of the Legislature and awaits Gov. Gray Davis’ signature. Davis should sign the bill promptly.
CU says it will fight Isuzu (and Suzuki in a separate but similar lawsuit) all the way. It should, but one wonders how many such cases it can afford to “win” before it will be shut up.
