Bill to defend civic speech from 'strategic' defamation suits proposed

Angelique Smith was named in a defamation suit.
Angelique Smith was named in a defamation suit. (CLEM MURRAY / Staff Photographer)
Posted: May 30, 2014

In winter 2009, Angelique Smith, a hospital worker making $11 an hour, was standing in her mother's living room in Upper Chichester when she learned she'd been targeted in a defamation lawsuit for questioning - online - whether the founder of her daughter's charter school was illegally diverting money.

"I dropped to the floor and cried," she said, her voice quavering still as she described a suit that demanded hundreds of thousands of dollars in damages.

"For the next two weeks, I lived at my mother-in-law's house. I was terrified to answer my door because I knew it [the lawsuit complaint] was coming."

Last month, Smith, along with more than 40 other local residents, filed into a charged State Senate Judiciary Committee hearing in Philadelphia on Senate Bill 1095, which zeroes in on so-called SLAPP suits. The acronym - which stands for "strategic lawsuits against public participation" - refers to civil actions brought by well-heeled entities or individuals, developers, and others seeking to quash opposing speech by people or civic groups who don't have the money to fight back.

By definition, SLAPP suits do not have legal merit. Instead, they are a hammer used to blunt criticism from people who can't afford to pay for the legal counsel needed in a courtroom brawl.

S.B. 1095 intends to give those being SLAPP-ed a way out by mandating expedited hearings that would allow defendants to show a case leveled against them is frivolous.

Smith, 40, a mother from Delaware County enrolled at the University of Pennsylvania, gave some of the most personal and passionate testimony at the hearing.

"My daughter, my husband, and myself have been held hostage for five long and arduous years by an injustice of the worst kind," she called out, according to transcripts and onlookers. The suit, which seeks a total of $300,000 from her and her husband, has been delayed numerous times, she said.

"We nonetheless anguish in silence, and our personal relationships suffer," she said. "This has nearly destroyed my marriage."

She and her husband have spent $5,000 fighting the suit and have defaulted on their home mortgage along the way.

First Amendment lawyer Lucy Dalglish, dean of the University of Maryland journalism school, said anti-SLAPP measures, when drafted properly, accomplish their goals.

"What these really do is protect the little people, and they're very, very effective," she said. "They truly are a way to keep the public dialogue going."

Twenty-nine states, the District of Columbia, and Guam have anti-SLAPP statutes, legal experts say, with California's being considered among the strongest.

Seeking a balance

Laura Lee Prather, a First Amendment lawyer in Texas, said anti-SLAPP measures "create a mechanism for judicial economy when frivolous lawsuits are filed."

Furthermore, because the statutes often shift attorney fees to the losing parties, it becomes easier for people being sued to retain a lawyer, she said.

Temple University law professor David Kairys, however, said some have viewed anti-SLAPP statutes as too broad, having the potential to thwart defamation or business-tort suits that have merit.

Yet no one spoke against the proposed legislation in Pennsylvania during last month's 3½-hour hearing, Kairys said. He is a strong supporter of the measure and testified in its favor.

State Sen. Stewart Greenleaf (R., Montgomery), who chaired last month's committee hearing, said his office received some letters opposing the bill afterward, but he declined to say how many or to characterize them.

He said he generally supported the measure, but stressed that his committee was reviewing suggestions on how to improve the bill.

While "the concept is good," he said, the language must not overreach or create a way for people to knock aside lawsuits with merit.

"So you have to have that balance," he said. "We want to give people some protection, as well as make sure that that protection is not abused."

Philadelphia developer Ori Feibush said he supported the bill in principle.

"It codifies the protection of constituents, which I think is wholly appropriate," he said in an interview.

But as a developer, "you run into issues on occasion, experiences where neighbors believe they can say anything and everything, including outright lies, about a developer and their project in order to push forward an agenda."

At last month's committee hearing, Point Breeze resident Haley Dervinis accused Feibush of threatening litigation against her and of hitting her with a cease-and-desist letter after she opposed his plan to build several houses on her block.

"While Mr. Feibush did not formally file charges against me, if he did, it would have devastated me financially," she testified, according to a transcript.

Feibush said he sent the letter because Dervinis was lying.

"All we asked her to do, and we put it in writing, was tell the truth," Feibush said. "She was making statements to the effect that she saw [my company] dumping trash on lots and so forth, which was just factually untrue."

'Months . . . years'

Feibush also said he didn't know of any developers in Philadelphia who had come out publicly against the anti-SLAPP bill, at least not so far. Asked about the proposed measure, the Building Industry Association of Philadelphia declined to comment.

The bill's sponsor, Sen. Lawrence Farnese (D., Phila.), was inspired after the Old City Civic Association, a decades-old community group in his district, disbanded in spring 2013 because it was no longer able to get insurance. After the civic association was hit with multiple SLAPP suits, insurance carriers saw it as too risky, Farnese said.

He pointed out that in Old City alone, there are up to 100 civic groups, and there has been significant development there in recent years.

"When I looked at the Old City situation as an attorney, they had no mechanism to have a claim that is baseless dismissed," Farnese said. "These cases can go on for months, for years."

Smith, as she thought back on the day she testified, said: "It is very important for citizens of the commonwealth to be able to speak on issues of public importance without fear. If this could happen to me, this could happen to anyone."


jgrant@phillynews.com

267-761-0036

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