Proposed SLAPP legislation would provide citizens 'a sword,' state senator says
February 02, 2005 - By SCOTT MILLER
State lawmakers are taking another stab at protecting citizens who participate in the political process from strategic litigation against public participation, or SLAPP lawsuits.
Legislation pending in the Senate would establish punitive damages against plaintiffs who file lawsuits that the courts rule as attempts to chill public participation or free speech. The proposal would expand a law enacted last year that set up expedited legal hearings to dismiss SLAPP suits against statements made at public hearings or meetings.
"Last year's legislation was basically a shield. This year's bill gives them a sword," said Sen. John Loudon, R-Ballwin, who sponsored Senate Bill 232.
That sword, said one opponent of the legislation, would slash companies' rights to protect their names against libel, slander and defamation.
If the legislation is approved, SLAPP plaintiffs possibly could pay defendants triple damages, depending on the court's ruling, Loudon said at a press conference last Friday. Businesses filing such suits also would lose tax credits on legal fee expenses and plaintiffs could not dismiss their case once the defendant challenges it as a SLAPP suit.
Also, any comments made during a public hearing or meeting would be immune from civil liability when made to persuade government action, according to the legislation.
If a defendant claims a suit is a SLAPP case, the plaintiff would have the burden of proving the defendant's comments are false, defamatory statements of fact rather than protected free speech.
Under the proposed legislation, the state attorney general could intervene and assume defense costs of any case he believes is a SLAPP suit.
The legislative action is a response to a growing amount of litigation filed against people who allegedly defame companies and individuals seeking government permits or licenses, Loudon said.
Oakville resident Tom Diehl, for example, is in a costly legal battle with Fred Weber Inc. for publicly opposing the company's efforts to get a trash transfer station near his neighborhood.
Fred Weber filed suit Feb. 20 in St. Louis County Circuit Court against Diehl and is seeking $5 million in punitive damages and at least $25,000 in actual damages. Diehl faces counts of slander, libel, civil conspiracy and business defamation for his alleged association with fliers that were distributed last December identifying Fred Weber Inc. as "trash terrorists," according to claims made by the company in the suit.
In July, St. Louis County Circuit Judge John Kintz denied Diehl's motion to dismiss the case, but Judge Lawrence Mooney of the Eastern District of the Missouri Court of Appeals agreed to evaluate Kintz's decision, putting the Circuit Court case on hold. One of Diehl's attorneys, Mike Quinlan, pursued the appellate court order, called a writ of prohibition.
A three-judge panel of the Missouri Appellate Court Eastern District last month heard oral arguments and a judgment is expected at any time.
Loudon's proposal would not apply retroactively to cases like Diehl's, but would protect political participants in the future, he said.
"We've seen homeowners' insurance policies canceled as a result of the defense cost," Loudon said. "We've seen people pay out of pocket $15,000 to $20,000. Now these are people who won every step of the way through the legal process, but nevertheless were left damaged for exercising their free-speech rights."
While Loudon claims SLAPP suits chill free speech, Weber attorney Gary Feder of Husch and Eppenberger contends Loud-on's legislation chills the right to protect oneself from defamation.
"That (legislation) is going to make it free game for anyone to say anything they want to about a company just because they're seeking a government license or permit," said Feder, a lead Weber attorney in the pending case against Diehl.
"Nobody's going to file any libel suit and there will be no protection against having their name slung around in the mud," he told the Call. "People ought to have the right at public hearings to oppose a project. What they shouldn't have the right to do is attack a company."
State Rep. Walt Bivins, R-Oakville, intends to introduce "identical" legislation in the House. Reps. Sue Schoemehl, D-Oakville, and Jim Lembke, R-Lemay, are supportive. State Sen. Harry Kennedy, D-St. Louis, co-sponsored Loudon's legislation. The five lawmakers were part of an interim committee set up last year to discuss expanding the SLAPP suit protection law.
"I think what we've got here will really end SLAPP lawsuits that companies will bring against the little guy," Bivins said.