Lawsuits to limit public participation can impact free speech, including #MeToo movement | Sen. Larry Farnese
Using court access and the legal system to gag local voices when they are in opposition to the interest of a developer is unfortunate and antidemocratic.
As a lawmaker and lawyer who has been immersed for years in the policy and politics of fighting strategic lawsuits against public participation (SLAPPs), I am pleased to have other public officials join our cause. In fact, Philadelphia City Council's Wednesday hearing on SLAPP suits may be useful for those not yet engaged in the fight.
But because there have been years of study, hearings, meetings and legislation, little can be gained by more talk.
We know the facts and understand what is necessary as a public policy. We need action, now.
SLAPP suits can be devastating to Registered Community Organizations (RCOs) and their efforts to defend free speech and democracy. Large business conglomerates, wealthy developers, and others who have big projects and small minds use our legal system — and the costs involved in legal actions — to drown free speech and community activism.
Local examples in the Philadelphia area illustrate the need for reform.
In 2013, the Old City Civic Association was forced to disband after finding insurance unavailable due to threatened legal action over zoning issues.
SLAPP suit threats also apply to individuals as well. One person was hit with a SLAPP suit for using a blog to question how puppy mill regulations were handled. The case carried on for four years before it was dismissed. Years later, and, despite the dismissal, the target of the SLAPP suit could not pursue frivolous-lawsuit damages because the SLAPP litigants appealed.
An even greater fear for the future is how SLAPP suits may be used to devastate the #MeToo movement. Those victimized by sexual harassment may face the prospect of SLAPP suits being deployed as a way for harassers to shield disclosure.
These odious acts — well-heeled developers using the legal system to stifle free speech — are ruinous. I am fully aware — as are the RCOs who are the targets of the legal actions — of what deep-pocketed developers can do in using SLAPP suits to destroy community activism. Developers, armed with fleets of lawyers, can hijack free speech and impede opposition to an unwelcome local development.
As the sponsor of legislation (Senate Bill 95) that would strike at the heart of this harsh legal strategy, I have faced unique policy, political and legal obstacles in trying to get my legislation approved.
My bill, designed to blunt heavily financed anti-free speech lawsuits, would provide for civil immunity and allow a SLAPP lawsuit to be dismissed early in the legal process if there is a public or social significance. This would save RCOs and private citizens significant expenses.
The legislation was built through extensive study, meetings and testimony at public hearings. At a Senate hearing in 2014, 27 witnesses either testified or submitted testimony about SLAPP suits and their impact. Many of those who stepped forward represented RCOs from Philadelphia.
We found, as a result of changes to the Philadelphia Zoning Code in 2012, that the role of the RCO has increased, but so has its risk. This change has made RCOs vulnerable to SLAPP suits. These suits, in turn, have driven up the cost of insurance significantly. In fact, insurance for board members may be as high as 20 percent of the total RCO budget.
In addition, because of the exposure to SLAPP suits and with it individual liability, RCOs have found it increasingly difficult to recruit and retain volunteers. This is exactly what the developers want. When the legal system is used to drive up costs, make it prohibitively expensive to operate a RCO and dry up the volunteer base that is the foundation of community activism, it is time for the state to step in and provide protection.
The bill that I drafted was approved April 2017 by the Senate overwhelmingly. It remains idling today in the House Judiciary Committee. The heavy weight of special interests, which we were successfully able to navigate around in the Senate, has stalled consideration in the House.
Action is needed now to move this important measure and protect RCOs and free speech. Using court access and the legal system to gag local voices when they are in opposition to the interest of a developer is unfortunate and antidemocratic.
Too many voices have been stifled and too many RCOs have been impacted. It's time for the state to step in and provide a shield that allows the legal system to work as it was designed, not as it is now being used.
Lawrence M. Farnese Jr. is a Democratic member of the Pennsylvania Senate, representing the First District since 2009. @LarryFarnese