Opinion: SLAPP — a Potent Legal Ploy to Silence Environmentalists

R. William Potter | January 25, 2016 | Opinion
Countersuits in response to litigation are often a way to ‘sue them into silence’ -- and court ruling may ease restrictions

Credit: Amanda Brown
R. William Potter
The ability to countersue opponents of development projects can strike at the heart of their First Amendment rights.

SLAPP stands for “Strategic Litigation Against Public Participation.” It works this way: A developer applies for zoning and other land-use permits to build a facility. As news becomes public about the planned project — whether it’s a massive housing development, a fast-food restaurant, or a 24/7 Wawa gas station — opposition or at least skepticism is aroused among neighbors and possible competitors.

Those concerned residents speak out against the project in public hearings. After it’s approved, they may even go to court to stop the project. The developer or builder responds by filing a countersuit against the opponents, labeling the legal action a “frivolous sham suit” intended solely to delay the project, having absolutely no merit, and costing the developer millions of dollars in “delay damages” caused by “tortious interference with contract,” slander, and libel, among other claimed injuries.

That is the classic SLAPP suit. It real purpose, as a state judge pithily put it, is not to prevail in the countersuit against a local citizens group, “but to sue them into silence.” And also to intimidate future would-be community activists against speaking out. Understandably, the mere threat of having to defend against such a lawsuit may be enough to stifle the right of the public, guaranteed by the First Amendment, “to petition government for the redress of grievances.” (Full disclosure: A few years ago, my law firm successfully represented a party who was hit with a SLAPP suit.)

Since the late 1990s, New Jersey courts were among the first in the nation to recognize this threat and to disallow such “intimidation through litigation” with its obvious chilling effect on the public’s right to speak and be heard in municipal zoning hearings or in appeals to the courts. Thus, for the past decade, it seemed that the SLAPP suit had gone the way of jilted lovers suing for alienation of affections.

But perhaps no more. A recent decision by a federal court may give rise to the return of the SLAPP suit — at least when it comes to suing into silence a competitor of a developer who, tired of the opponent’s efforts to stop the project, countered by filing an antitrust suit for millions of dollars in damages, asserting an intent to monopolize the local market by opposing the development.

Among the problems with a SLAPP suit, besides the obvious chill on First Amendment rights, is a procedural one: How exactly is a court supposed to manage a lawsuit against a lawsuit? Does the court set aside the original plaintiff’s action against the developer in favor of resolving the countersuit against the neighbor’s case seeking to stop the project? But how can the court do that unless it first decides the merits of the initiating litigation?

In a leading case from 1999, Lobiondo v. Schwartz, a New Jersey court made it clear that unless the neighbors’ lawsuit was “objectively baseless,” meaning it cannot possibly succeed, the court will dismiss a countersuit alleging the typical SLAPP-suit litany of injuries and demand for damages.

A year earlier in Frazier v. Bovino, the state Supreme Court held that anyone with standing to object to a land-use application — such as a fellow landowner — is entitled to “immunity from claims for damages based on the exercise of the right to object.” The court also held that the little-used “tort of malicious use of process” is available to a SLAPP defendant, effectively turning the table on the SLAPP in a “SLAPP-back” counter-countersuit.

Since then, lower courts have generally been quick to dismiss SLAPP suits — sometimes going so far as to order the SLAPP suit plaintiff or his attorney to pay the legal fees incurred in successfully dismissing the SLAPP suit — and only then may the court turn its full attention to the merits of the initiating complaint against the development.

To be sure, not every lawsuit against a development project has the bare minimum of merit; if not it should be vulnerable to a motion to dismiss. And some anti-development efforts may thinly mask discriminatory purposes, such as suits to prevent group homes for the disabled or low-income housing.

But the possible return of the SLAPP suit, albeit limited, should send shivers down the spines of environmental groups and local civic activists. There is no substitute for the courts being vigilant and forceful in promptly identifying and then rejecting SLAPP suits — or else important voices in land-use controversies may be stilled.