Byron Sheldrick

Strategic litigation against public participation (SLAPP) is a recent, vicious circumvent of free speech rights. These lawsuits move political/social issues from the streets to the courts. Well financed corporations have taken to suing any and all who might prove obstructive to profit flows. They will almost certainly lose (77%), but they will break protesters’ individual bank accounts and possibly ruin their lives for even thinking they could stand in the way.

If you think that’s an exaggeration, consider Sheldrick’s example of two anti-McDonalds’ pamphleteers, who were sued, and unable to afford lawyers, also lost their jobs defending themselves in court daily for two years. McDonalds dragged things out as long as possible, forcing them to defend every part of every pamphlet statement with court-worthy proof. They didn’t do too badly, considering they had zero training or resources. After two years, the court awarded the fast food giant just £60,000. Defendants, penniless, could not pay and McDonalds walked away, having spent millions to crush them. (And let that be a lesson to you all!) 64% of SLAPPs are filed against individuals, not groups. We call this divide & conquer. It’s been around a while.

Sheldrick says more experienced litigators have learned the suit does not even have to bear on the issue. Blocking a road with a protest march could damage a company’s profits if its trucks can’t move freely past. Sue for economic damages and the protest will take care of itself. The threat of a multimillion dollar lawsuit is usually more than enough to quiet everyone. Most concerned citizens have no experience in litigation; the company lives it. The police in New York have achieved this status with labor. No one will march for fear of NYPD arrests, beatings or worse. We bully people out of their democratic rights. This is a new risk – democratic risk.

As such, Blocking Public Participation is a timely addition to the bonfire of free speech rights, currently under total disregard by the NSA in collecting every internet chat, e-mail, tweet, phone call log, and credit card purchase. The book is delightfully well organized and thorough, looking at SLAPPs from every perspective. In both Canada and the USA. (Spoiler alert: similarities outweigh the differences.) Sheldrick does an excellent job of summarizing the patchwork of restrictions thrown up by a few provinces and states (in the glaring absence of federal responsibility in both countries) to try to maintain some semblance of democratic process. He says it’s ironic that many SLAPPs can be framed as an abuse of process themselves. This is a frank, direct, straightforward look at a new horror in our midst.

Blocking Public Participation reminds me of the Law Reform Commission reports of the 1970s. They would take some issue and examine its legal history around the world and through the ages, before making recommendations for a revised law for Canada. They were a pleasure. So is this.

Sheldrick makes a noble attempt to formulate a web of solutions. But it’s not hard to imagine them creating more problems than they solve. This is a litigious society; we sue in every direction and let the courts sort through the mess. But as long as we’re dreaming, what if - if mind you - we removed the person status of corporations instead? So companies would no longer be people with the same rights only more? So companies couldn’t sue individual protesters; only individuals could do that. That one terrible OW Holmes decision a hundred and some years ago keeps coming back to bite us. It packed more grief per brief than anything until Citizens United – which is even more of the same. Just sayin’.… (més)