Remember SLAPP suits? Back in the 1980s and '90s, corporations developed a tactic of filing lawsuits against outspoken critics. The idea was to silence them under a mound of legal paper and fees. SLAPP stands for "strategic lawsuit against public participation," and people from neighborhood activists to Oprah Winfrey were hit with them for fighting development projects or, in the case of Oprah, bad-mouthing beef. Simply put, it was a way of gagging the public through intimidation: Speak up as a private citizen and find yourself chained to an attorney for the rest of your life.
The tactic was an outrageous assault on free speech, but in some cases it worked. The backlash, though, was strong, and some states, including Washington, adopted laws to ban such suits. As ever, though, big corporations and their legal departments have proved adaptable. What we're seeing now is a different tactic with the same end in mind: silencing John and Jane Q. Public.
Instead of dragging individuals into court, the new idea is to simply shrink the court of public opinion with the aid of willing or scared public officials.
In the rural town of Yelm in Thurston County—mostly known as the home of New Age diva JZ Knight—many locals are concerned about the application of Wal-Mart to build a store in town. So upset and so vocal have these folks been in expressing their concerns about the future quality of life in Yelm that the City Council has had enough. According to press accounts, in April, the council approved a motion to ban discussion of or mention of the word "moratorium" in connection with big-box retailers. In other words, it passed a moratorium on moratoriums. That was followed by an edict in June that anyone attending a City Council meeting and attempting to discuss Wal-Mart would be told to sit down and shut up.
So here is a town facing a major development decision—one that could dramatically change its character and economy—and the people are denied the right to express themselves on it to their elected representatives in a public forum.
The supposed legal justification for silencing the townies is that the City Council has to appear unbiased if an appeal of Wal-Mart's application ever comes to the council for review. Such zoning and development issues often are considered under quasi- judicial conditions, and council members have to act as soberly as judges.
But for that to extend to an arbitrary silencing of the community—as if simply listening to the people's complaints was a demonstration of bias rather than an inspiring example of democracy in action—turns the Constitution on its head. It protects the rights of Wal-Mart over the rights of the citizens of Yelm.
Now why would the council do that? Because of intimidation. The town of Yelm is afraid that deep-pocketed Wal-Mart will sue if it turns down the retail giant.
In late June, the Pierce County Council approved an ordinance that restricts what citizens can say about their elected representatives. Members of the public who wish to address the council must follow this new rule: "Speakers may not attack or make any allusion to the motives of any council member." Anyone who violates this rule in the eyes of the council chair will have to shut up or be tossed out.
Over the years, Pierce County has had problems with some annoying citizens, such as Will Baker, whose career as a disrupter of public proceedings is well documented. As Seattle Weekly's Rick Anderson has written, Baker is a gadfly so annoying that he has been arrested multiple times for refusing to shut up at Tacoma City Council meetings—so irritating that his jailers left his cell unlocked, hoping he'd leave. According to The Tacoma News Tribune, in an apparent reference to Baker and several other incidents, Pierce County Council member Terry Lee said meetings had become "The Jerry Springer Show."
But according to the paper, the incidents also included citizens questioning the votes of council members who had taken campaign donations from developers before voting to approve their projects.
So in Yelm, you cannot criticize developers for fear of getting the town sued for an antidevelopment bias. And in Pierce County, you can accept developer cash, but you cannot be criticized for it at a public meeting.
It would almost be funny if it weren't so serious. Take the outrageous case of St. Thomas Township in Pennsylvania. A company wanted to locate a quarry, asphalt plant, and concrete factory in this rural community, across the street from a school. Some citizens objected, and they elected a mild-mannered Republican businessman named Frank Stearn to the town council. He became a town supervisor in 2004, and the developer immediately threatened to sue if Stearn took any action related to the quarry because, they claimed, he had expressed a willingness to "discriminate" against them. In other words, they wanted him disqualified for doing what he was elected to do!
Fearing bankruptcy by lawsuit, the town and Stearn caved.
The American Civil Liberties Union of Washington has sent letters to Yelm and the Pierce County Council decrying their outrageous actions. A group in Pennsylvania filed a class-action lawsuit on behalf of quarry opponents in St. Thomas Township, claiming their constitutional rights had been violated, but they lost the first round in court. The activists are appealing.
In the meantime, elected officials are being intimidated into silence by corporate lawyers or are effectively acting on their behalf to silence citizens.
Who needs SLAPP suits when corporations have public servants doing their dirty work for them?