Blocking Public Participation: The Use of Strategic Litigation to Silence Political Expression

Ontario

1 SLAPPs: Courts, Democracy, and Participation

In 1995, the lumber company Daishowa, seeking an injunction to prevent an ongoing boycott of their products, sued a small non-profit social group, the Friends of the Lubicon. In 2009, an environmental activist and opponent of the British Columbia salmon farming industry was sued for $125,000 by Mainstream Canada, a Norwegian-based company and the second largest salmon farming company in British Columbia. Also in 2009, the City of Guelph, in Ontario, launched a $5 million lawsuit against a group protesting the development of an industrial park that would, allegedly, have an adverse effect on the Hanlon Creek watershed, a sensitive ecological area. And in 2010, the Youthdale Treatment Centre of Toronto sued former patients and their parents, claiming that allegations made about the practices at the clinic constituted defamation. The treatment centre sought $5 million in damages and an injunction.

These cases are all examples of a very specific type of lawsuit called a SLAPP, which stands for strategic lawsuit/litigation against public participation. Such lawsuits are brought for the purpose of preventing or discouraging political expression and comment on public issues. They are designed to limit protest and dissuade individuals, citizens, and activists from political participation. There are many instances of SLAPPs, and they take a wide range of forms. Allegations of defamation, trespass, and a host of other civil wrongs often form the basis of a SLAPP lawsuit. The cases can involve a wide range of plaintiffs, ranging from individuals, corporate executives, and politicians to companies and governments. Defendants may similarly range from individual citizens to a variety of social movement organizations, including interest groups, activist coalitions, and grassroots community organizations. What all of the cases have in common, regardless of their form, is that they take place within a context of political contestation. The lawsuit, while alleging a civil claim based in common law, is a strategy within a broader political dispute. The purpose is often to put activists on the defensive, redirect their energies and resources to a costly legal battle, and, in some cases, shut down their political campaign entirely. Sometimes a SLAPP is a defensive and reactive measure on the part of those who launch such cases. In other instances, it is a pre-emptive strike, intended to prevent democratic debate and political discussion of issues of public importance. In many instances, the goal is not to see the case through to completion, or even to secure a final legal victory. Cases can become extremely lengthy and drawn out, complicated by motions, preliminary hearings, trials, and appeals that many activists simply do not have the resources or energy to continue. SLAPPs frequently involve tactics of attrition.

SLAPPs are an important strategy that can be employed by those in positions of power and authority to attack and sideline those who are challenging their activities. By invoking the authority of the courts, these suits represent a significant threat to both freedom of expression and political participation. More broadly, they raise questions about the role of the courts in policing and adjudicating political disputes as well as about the nature and quality of our democratic practices. If the quality of our democracy is measured by the degree to which people can actively and freely participate in political life, then the role of SLAPPs, and the ability of some to use the courts to curtail and constrain debate on public issues, needs to be carefully examined.

In general, SLAPPs have been given fairly limited attention within the Canadian context. This sharply contrasts with the situation in other jurisdictions, particularly the United States, where there is a considerable literature on the phenomenon. While this undoubtedly reflects the more litigious nature of American political culture in general, it also reflects the degree to which public interest law has become a fixture of both American politics and academics. The study and practice of public interest law, by which we mean the utilization of the law and rights to advance social movement causes, are highly developed in the United States. Public interest law itself is the subject of much academic and political debate. It focuses on a variety of dimensions, including the utilization of the law by elite groups as a tool for resisting social change and striking back at activists and social movement organizations.

In Canada, by contrast, the study of public interest law remains somewhat less developed. This is not to say that considerable attention has not been paid to some aspects of the issue. The introduction of the Charter of Rights and Freedoms in 1982 spurred the development of a law and politics movement within Canadian academic circles. The literature of this movement initially focused on the legitimacy of judicial review and its broad implications for questions of democratic practice and political accountability. The so-called legalization of politics thesis interrogated the significance of an emerging rights discourse for Canadian politics. Left-wing academics such as Judy Fudge and Harry Glasbeek (1992), Alan Hutchinson and Andrew Petter (1988, 1989), and Michael Mandel (1994) argued that the Charter of Rights and Freedoms potentially undermined democratic practice by diverting social movements from political mobilization to the courts, where lawyers and the legal discourse operated as a demobilizing force. A right-wing version of the thesis, represented by the work of Morton and Knopff, argued that a court party of groups, mobilized by the opportunity to make Charter claims, had developed (2000, 24). This represented, in their view, a displacement of politics from appropriate democratic forums, most notably legislatures, to undemocratic and unaccountable courts.

Both versions of the legalization of politics thesis have come under considerable criticism (Herman 1993; Sheldrick 1995; Sigurdson 1993). The range of these criticisms is beyond the scope of this book. However, it is important to note that the debate over the legitimacy of judicial review, and the utilization of the Charter by social movement organizations to press their claims, dominated much of the early debate over the intersection of law and politics in Canada.

This had several interrelated effects. First, the development of public interest law scholarship was dominated by considerations of the legitimacy of the court’s role in adjudicating rights claims and the implications of this for public policy (Hiebert 1996, 2002; Manfredi 2001). Much of the debate has focused on whether or not it was appropriate for the courts, given that judges are neither elected nor democratically accountable, to pronounce on the constitutionality of state policy and overturn the decisions of democratic parliaments. How courts navigate their relationship with legislatures, interpret rights, and decide questions of reasonable limits, have been important topics within these debates. This, of course, also led to a focus almost exclusively on the decisions of the Supreme Court of Canada in high-profile Charter cases.¹ There has been much less attention on lower courts, or on non-Charter/constitutional aspects of the law-politics intersection.

The focus on constitutional cases, however, has also led to an examination of the role of social movement organizations, on the one hand, and of the state, on the other. To the extent that scholars have looked beyond the largely theoretical and normative questions of constitutionalism, it has been to focus on the actual practices of social movements and the how they have organized around law and rights. In particular, much attention has been paid to the contribution of the women’s movement, aboriginal organizations, and other equity-seeking groups to the development of Charter jurisprudence (Herman 1997; Jhappan 2002; Manfredi 2004; Razak 1991; Sheldrick 2004; Smith 1999). At the same time, scholars have also examined how the state has responded to the need to defend its policies against Charter scrutiny and the implications of Charter decisions on particular areas of public policy.² This has produced a body of literature examining the internal decision-making structures of the state, and mapping how internal processes have been altered in response to new Charter demands (Kelly 2005). More recently, scholars have also begun to interrogate the judicial appointments process and the internal decision-making structures of the Supreme Court of Canada (McFarlane 2013; Riddell, Hausegger, and Hennigar 2008). These concerns reflect an ongoing interest with the democratic/undemocratic character of both the courts and judicial review.

It is in this context that a consideration of SLAPPs has much to tell us about the relationship between law and politics, and about the broader question of the role courts play in our political system. In particular, it offers a corrective to what, I would argue, is an overemphasis on constitutionalism as the primary context in which the relationship between law and politics takes place. While it is understandable that one should pay attention to the decisions of the Supreme Court of Canada, at the same time the relationship between law and politics plays out in a number of other judicial and quasi-judicial contexts (Sheldrick 2004). The original proponents of the legalization of politics approach were undoubtedly correct to the extent that courts and law do have an impact on the practice of politics and the way in which activists, elite groups, and officials conduct themselves. This can involve the displacement of politics to judicial arenas as well as the utilization of judicial arenas for overt political purposes by a range of actors. There is both a legalization of politics and a politicization of law. The study of SLAPPs, however, reminds us that often these processes take place not only, and indeed not even predominantly, in a constitutional setting. Rather, they take place in a range of political contexts, across both public law and private law settings, and involve a wide range of actors. It frequently is not social movements that are the primary actors in motivating a shift from the political realm to the legal realm. The courts and law need to be understood not only as resources for activists, but also as resources for vested interests. Indeed, one needs to remember that the law and courts provide important arenas for political contestation (Tarrow 2011). They operate as both an opportunity and a constraint within the structure of political opportunities that inform the context of social movement activism and of opposition to that activism. It is this last feature—how the law and courts contribute to the possibilities of opposing and limiting activism—that is the focus of this book.

Sydney Tarrow, in his study of social movement mobilization, has argued that the ability of social movements to organize and mobilize successfully depends on the overall structure of political opportunities. This includes an understanding of the resources and capabilities of groups, their repertoires of political action, but also of the structures of opposition that they face. It also includes those institutions of the state that can operate as vehicles by which activism and political engagement may be blocked (Tarrow 2011). In this context, the operation of the courts and the common law becomes very important. Discussions of judicial review have emphasized the legalization of politics. The displacement of activism and engagement by vested interests into the judicial arena, however, is a very clear and deliberate example of the legalization of political life. Moreover, this legalization of politics is not at the instance of a so-called court party of equity-seeking groups (Morton and Knopff 2000) but is rather the result of conservative forces seeking to undermine and thwart political contestation. It also has very little to do with constitutionalism. Instead, it is linked to the structures of the judicial process and the value-assumptions that are deeply embedded in the common law. SLAPPs, then, are a very important aspect of the overall phenomenon of the legalization of politics. The fact that its manifestation is rarely the subject of comment by those who otherwise are critical of the Charter of Rights and Freedoms is telling.

By drawing our attention to the role of law and courts within a context of political conflict, the study of SLAPPs places questions of political participation at the heart of our inquiry. It raises questions about political participation and democratic practice in a more direct fashion than traditional discussions of the relationship between law and politics. This is because it raises these questions across a range of participatory democratic structures and contexts, and therefore requires us to confront issues regarding what constitutes appropriate political expression. Political participation in our society is not restricted to the legislative arena. There are a wide variety of other forms of political expression that take place within civil society. For example, the blockade of a logging road, a demonstration in front of a polluting factory, or a consumer boycott are all clear expressions of political perspectives on public issues. In this sense, they are just as valid as petitioning Parliament, writing to a Member of Parliament, or appearing before a Royal Commission or legislative committee.

The political realm is far broader and deeper than governments and the state. Public issues often raise questions of private power. The rule of law, however, provides broad access to the courts to defend one’s interests. When does the expression of political dissent cross the line and become an issue of law? When does protest become defamation, nuisance, or some other interference with private rights and interests? What rights do politicians and public officials have to use the courts to defend their reputations against allegations of impropriety? Expression, in a democratic society, must be subject to some limits. The parameters of those limits, and the role of the courts in defining them, are critical questions.

The utilization of lawsuits to curtail political participation requires us to consider the quality of our democratic and governmental institutions. While it is undoubtedly true that a corporation suing activists and protesters may raise questions about democratic political participation, most would agree that it is something very different when politicians and governments choose to sue their critics. If those elected to be accountable on public issues seek recourse to the courts to fend off their opponents, then the quality and integrity of our democratic institutions may be threatened. In Canada, as elsewhere, this has been a troubling trend. Municipal governments, for example, have chosen to sue demonstrators for damages related to their activities, and even elected officials have not been immune from the temptation to seek recourse to the courts when criticized. Such actions raise questions about the degree to which politicians can shift between the status of a private individual and the status of a public official, and the limits of our existing rules of parliamentary privilege and institutional accountability.

SLAPPs also raise the question of the appropriate role of the courts in adjudicating issues of public interest. In general, the courts have traditionally not been very good at this. Rules of standing and questions of justiciability, for example, have operated to preclude individuals and groups from bringing public issues before the courts.³ The common law principles that inform judicial attitudes understand the rule of law in terms of individual legal entitlements, rather than collective interests. Courts are generally comfortable considering and adjudicating individual interests. This is hardly surprising given the vast majority of a court’s caseload involves precisely this sort of claim. As such, when individual entitlements to bring a lawsuit are pitted against collective rights to expression and association, it is frequently the former that wins out.

However, this is precisely what courts must consider when dealing with SLAPP lawsuits. When is the articulation of a public interest sufficiently great to override private rights and private interests? Put another way, the courts need to be able to ascertain when the articulation of private rights is justified and legitimate, and when it constitutes an abuse of the judicial process. The regulation of SLAPPs may indeed require curtailing rights of access to the courts in political contexts. Historically, while courts have always been concerned about the abuse of judicial process, they nevertheless have also tended to be very wary of restricting access to the rule of law. There needs to be some principled basis for doing this, so that legitimate claims for redress can be adjudicated, while at the same time the maximum space for political discussion and political participation is preserved.

SLAPPs also clearly raise questions of rights. The Canadian Charter of Rights and Freedoms provides clear protection of rights to association, assembly, and expression. These rights are the fundamental underpinnings of political participation. However, our Charter of Rights and Freedoms is principally a negative rights document. This means that the Charter only applies in situations where state action limits or infringes the rights contained therein. As discussed earlier, many SLAPP lawsuits involve private actors seeking to invoke private law remedies. Consequently, these cases fall outside the scope of constitutionalism and our rights framework. Nevertheless, all of these remedies do require the intervention of the courts, and therefore seek to rely on the state authority, particularly in the enforcement of any remedial orders or injunctions that might result from the lawsuit.

Canadian courts, however, have tended to take the position that the enforcement of the common law, in the absence of additional state involvement, is insufficient to invoke the possibility of Charter scrutiny. This differs somewhat from the American context, where courts have been more willing to apply the Bill of Rights and rule that some SLAPPs constitute a rights violation. Yet even if not directly applicable to many SLAPPs, Charter rights do provide an important context and express fundamental principles of our political and legal systems. These principles should inform how courts approach the task of interpreting the common law and policing their own processes against potential abuse. At the very least, those rights-based principles should guide the definition and understanding of what constitutes an abuse of judicial process.

It is also true, however, that the courts are not the only state institution that should be guided by an understanding of the importance of Charter principles. Governments themselves should strive to respect Charter principles in developing legislation and policy. In the United States, a number of jurisdictions have moved to impose legislative limits on SLAPP lawsuits, thereby providing courts with the tools to limit abusive suits, while not overly constraining access to judicial remedies. In Canada, British Columbia and Quebec have both enacted legislation restricting SLAPP lawsuits, although the BC legislation was repealed after a very short period of time and a change of government. Ontario now has a far-reaching anti-SLAPP bill before the legislature, although its future is far from certain. Other jurisdictions have considered legislation restricting SLAPPs, but reform has been slow in coming.

It would, of course, be wrong to suppose that all SLAPP lawsuits are successful in curtailing public expression. Much depends on the nature of the targets of SLAPPs, and the way in which they respond to the lawsuit. Law is frequently a double edged sword. A SLAPP lawsuit can potentially be the basis for further mobilization. The famous McLibel case in Britain demonstrates how a SLAPP lawsuit can lead to a huge amount of negative publicity for a plaintiff. Moreover, if activists have the capacity to fight a case through to its conclusion, there is a very good chance the suit will be defeated. Most SLAPPs are not particularly meritorious on their facts. There is also a growing jurisprudence in Canada that suggests the courts will be less willing to tolerate SLAPP litigation. Nevertheless, since many SLAPPs never actually