Blocking Public Participation

The Use of Strategic Litigation to Silence Political Expression

by Byron Sheldrick, read by Miles Meili

tagged: censorship, defamation, political advocacy, political freedom, litigation

Description

Strategic litigation against public participation (SLAPP) involves lawsuits brought by individuals, corporations, groups, or politicians to curtail political activism and expression. An increasingly large part of the political landscape in Canada, they are often launched against those protesting, boycotting, or participating in some form of political activism.

A common feature of SLAPPs is that their intention is rarely to win the case or secure a remedy; rather, the suit is brought to create a chill on political expression. Blocking Public Participation examines the different types of litigation and causes of action that frequently form the basis of SLAPPs, and how these lawsuits transform political disputes into legal cases, thereby blocking political engagement. The resource imbalance between plaintiffs and defendants allows plaintiffs to tie up defendants in complex and costly legal processes. The book also examines the dangers SLAPPs pose to political expression and to the quality and integrity of our democratic political institutions. Finally, the book examines the need to regulate SLAPPs in Canada and assesses various regulatory proposals.

In Canada, considerable attention has been paid to the “legalization of politics” and the impact on the Charter in diverting political activism into the judicial arena. SLAPPs, however, are an under-studied element of this process, and in their obstruction of political engagement through recourse to the courts they have profound implications for democratic practice.

About the Authors

Byron Sheldrick is chair of the Political Science Department at the University of Guelph. His research involves the intersection of law and politics and the way social movements organize around legal issues. Before joining the University of Guelph he taught at the University of Winnipeg and at Keele University in the United Kingdom.

Excerpt

Excerpt from Blocking Public Participation: The Use of Strategic Litigation to Silence Political Expression by Byron Sheldrick

From Chapter 1: SLAPPs: Courts, Democracy, and Participation

SLAPPs represent a potentially serious threat to political activism and political participation. At a time when we lament the diminished quality of political participation in Canada, as evidenced by decreasing voter turnout, youth disengagement, and general apathy about public issues, it is important to examine critically those structures within our political system that limit and constrain political debate. slapps operate within a highly contradictory context. While one wants to encourage political participation, one also wants to ensure that those who genuinely have suffered a civil wrong have appropriate means of redress. At the heart of this contradictory context are the courts, which must both seek to safeguard democratic practices while also safeguarding their own, far more traditional role as adjudicative bodies.

From Chapter 7: Final Thoughts

SLAPPs, then, represent a very clear legalization of political life. They constitute a strategy of utilizing judicial processes to sideline political activism and block political expression. The targets of these lawsuits are often activists, but often they are also ordinary citizens who have been adversely affected by the exercise of political and economic power. The chilling effect of these lawsuits is difficult to assess, but it certainly cannot be discounted or ignored. Moreover, increasingly, there is evidence that SLAPP-type litigation has moved beyond what might be termed “private matters, ” where both parties operate within civil society, to conflicts that take place within our institutions of democratic practice and accountability. In this context, SLAPPs present an even clearer threat to standards of democratic participation and political expression.

Certainly, due process, the rule of law, and access to justice are also important values of our democratic system. However, when judicial processes can be distorted and abused, in order for one party to constrain and silence the political expression of another, the values of access to justice have been ill served. For this reason, anti-SLAPP legislation is needed throughout Canada. The success or failure of governments to implement regulations will be a test of the quality of our democracy.

Awards

Long-listed, The Hill Times Best Books

Editorial Reviews

“An erudite examination of how lawsuits brough by individuals, corporations, groups, or politicians have been wielded like a club to beat political activism into submission.... Blocking Public Participation warns of a dangerous and possibly growing new threat to the fundamental principles of democratic government, and is worthy of the highest recommendation for public and college library political science collections.”

— Political Science Shelf, Midwest Book Review

“Blocking Public Participation is both scholarly and accessible, and it makes an important contribution to Canadian political and environmental studies. Making excellent use of cases, the book reveals the extent to which strategic litigation has become a serious threat to public engagement in administrative decision making and critical political discourse. It also sheds light on how the internal logic of civil actions fails to provide disincentives for strategic lawsuits, and on the role of courts in the unwitting suppression of legitimate and otherwise legal expressions of political dissent. In these respects the book is a valuable manifestation of and is a vehicle for mobilizing knowledge among politicians, academics, the general public, and social movement organizations in aid of much-needed political and legal reform.”

— Alan Diduck, Department of Environmental Studies and Sciences, The University of Winnipeg

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Blocking Public Participation

The Use of Strategic Litigation to Silence Political Expression

by Byron Sheldrick, read by Miles Meili

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