First Amendment constitution rights

It's known as SLAPP: A lawsuit filed by a company, or even a government agency, against someone who speaks out.

"SLAPP" stands for "strategic lawsuit against public participation."

"SLAPPs have become an all-too-common tool for intimidating and silencing critics of businesses, often for environmental and local land development issues," says the Reporters Committee for Freedom of the Press. But SLAPPs are also filed for other reasons.

The term was coined by two professors at the University of Denver -- George Pring and Penelope Canan -- in the late 1980s and described in their 1996 book SLAPPS: Getting Sued for Speaking Out.

Since then, 28 states have passed anti-SLAPP laws. But according to supporters, no one has ever tried to run an anti-SLAPP bill in Colorado -- until this year.

House Bill 1324, sponsored by Democratic Reps. Lisa Cutter of Evergreen and Shannon Bird of Westminster, would set up an expedited process when someone is being sued for exercising their constitutional right of free speech, or as the Pring-Canan book pointed out, for petitioning the government for redress of grievances.

The book's authors, both now emeritus professors of DU law and sociology respectively, said back in 1996 that the First Amendment's establishment of the right for citizens to seek redress of government grievances is likely its least known provision.

House Bill 1324 won a 10-1 approval from the House Judiciary Committee Tuesday and now heads to the full House.

It isn't only companies that file SLAPP suits against critics, according to witnesses. Governments, such as police officers accused of excessive force, do as well, they said.

But most of those who testified in favor of the bill (no one testified against it) are from some of the Front Range neighborhoods that have been fighting oil and gas companies.

Cutter told the judiciary committee Tuesday that SLAPPs "chill free speech and healthy debate by targeting those who communicate with their government or speak out on issues of public interest. SLAPPs are used to silence and harass critics" by forcing them to hire lawyers, sometimes at a cost of thousands of dollars, to defend against them. It ties up the courts, too, she said.

Under House Bill 1324, if a lawsuit is brought against someone who is exercising their right of free speech, it would be subject to a special motion to dismiss, and only if the defendant is likely to prevail on the claim, Cutter said.

"We have a compelling state interest" to ensure the courts aren't being used "abusively to chill people's exercise of free speech," added Bird. 

Republican Rep. Rod Bockenfeld of Adams County said courts already have the ability to dismiss frivolous lawsuits, questioning the need for the bill. Bird replied that those in a SLAPP suit would have the ability to request those lawsuits be dismissed much faster than what's in current law. That expedited process also stays discovery, which can be used to abuse defendants, she said. 

Among the witnesses was environmental activist Pete Kolbenschlag of Delta County, who was sued in 2017 over comments he made in 2016 in a Facebook post on an article published by the Delta County Independent regarding a settlement involving oil company SG interests. The company sued Kolbenschlag for libel.

The district court found in his favor and he won attorney's fees, he told the committee. But the case is now under appeal. The lawsuit has caused hardships, affected his finances, his business, caused enormous stress and taken hundreds of hours of his time in the last two years. HB 1324 will add an extra layer of protection, Kolbenschlag said. 

Kolbenschlag was represented by attorney Steve Zansberg, who also testified on behalf of the Colorado Press Association, the Colorado Broadcasters Association and the Colorado Freedom of Information Coalition. (Zansberg has represented The Gazette, the parent newspaper of Colorado Politics.)

The bill address a growing problem facing ordinary citizens like Kolbenschlag but newspapers and broadcasters as well, Zansberg said, which are forced to bear the cost of defending baseless lawsuits.

SLAPPs are filed to punish speakers through protracted legal proceedings, he said, and it's usually well-heeled individuals and corporations who can afford the attorneys fees.

Zansberg also relayed an example from the Denver weekly paper Westword, which was sued in 2015 by the subject of an unflattering cover story, a doctor who was the head of the emergency room at Children's Hospital Colorado.

According to news reports at the time, the doctor was charged with multiple felony counts related to writing fake prescriptions for himself for drugs such as Ambien, Vicodin and Valium. He pleaded guilty to 14 counts and surrendered his medical license and later sued Westword based on two stories.

The lawsuit was dismissed, but Westword paid a small fortune to defend it, Zansberg said, and that can take money away from its news-gathering operations.

Zansberg said the Colorado bill is modeled after California's, which has been around the longest, is one of the strongest and provides the greatest protection for free speech activities. It also has abundant case law behind it, he added.

Helen Griffiths of the American Civil Liberties Union said SLAPP lawsuits use the legal system to choke the exercise of free speech; they're meritless, not intended to right a wrong but to intimidate and silence critics and can drag on for years.

Half of SLAPP suits are brought against people who participate in public meetings and suits are also brought against people for distributing flyers, writing letters to the editor or participating in a peaceful demonstration, she said.

"They're often brought by the most powerful against the most vulnerable," and even the most frivolous cases are successful, because people promise to apologize or keep quiet, she said. "Wouldn't that be enough to silence you?"

These frivolous lawsuits undermine public discussion, Griffiths added.

Lawyer Leslie Weise of Monument said she was accidentally sent a copy of an air quality report for the coal-fired Martin-Drake power plant in Colorado Springs which she had been seeking from the utility. She told the committee she returned the report without sharing it but did inform media that it contained dire information about possible violations of air quality.

The city of Colorado Springs "embarked on a lengthy campaign to destroy all aspects of my life, personal and professional," Weise told the committee. When that backfired due to public outrage, she said, the City Council decided to pursue complaints against her with state bars in New York, Pennsylvania and California. She hired four sets of lawyers in three sets, lost business opportunities, her health suffered from the stress and she eventually moved out of El Paso County.

All of the bar complaints were dismissed and no sanctions were imposed, Weise said. She said the city spent more than $100,000 pursuing her.

Weise asked that the committee "help people who exercise their lawful First Amendment rights" and that "they do not suffer as I have." She also asked that the bill include governmental entities, "particularly when they act as industry as this municipal utility did."

The bill now moves to the full House for further action.

(Disclosure: Reporter Marianne Goodland, in a previous career doing media relations for the University of Denver Sturm College of Law, worked with Pring and Canan to publicize the book.)

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