Canada Restricting SLAPP Suits but First in Personal Freedom: What’s the Connection?

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November 6, 2015; Canadian Underwriter

Last week, the Legatum Institute, a British think tank, released its 2015 “Prosperity Index” ranking the world’s most prosperous nations—Norway on top, followed by Switzerland, Denmark, New Zealand, and Sweden (the U.S. ranked 11th). Particularly interesting is the country ranking 6th on the list: our northern neighbor, Canada.

In the multi-issue scale used by Legatum, Canada ranked first in terms of “personal freedom” with the following variables: “tolerance for immigrants, tolerance for minorities, civil liberty & free choice, [and] satisfaction with freedom of choice.” Canada ranked first in tolerance toward immigrants (ahead of Norway, New Zealand, Iceland, and Ireland), fifth most tolerant of ethnic minorities, and fifth in terms of the feelings of citizens “that they have the freedom to choose the course of their own lives.”

Remember that this scale was compiled during the long term of office of conservative Prime Minister Stephen Harper, whose Tories were recently booted from office in the Canadian national elections held October 19th. Contrast Canada’s ranking on the personal freedom sub-index with this country’s at 15th, presumably because of the continuing controversies around government monitoring of citizens’ emails and telephone communications. How did Canada grab the title of “land of the free” and what does it do to keep it, especially since on governance, Canada also ranks ahead of the U.S.—seventh internationally, compared to eleventh?

This columnist’s recent visit to Canada indicates that Canadian nonprofits are quite attentive to the personal freedoms of their constituents and stakeholders. One example is the recent enactment in Ontario of an anti-SLAPP bill. The legislation—the Protection of Public Participation Act—would identify lawsuits that “unduly restrict free expression in the public interest.”

Most SLAPP suits are really intended to simply scare off or otherwise shut up critics. This bill would give the courts some ability to “deal with” SLAPP suites, according to Yasir Naqvi, the province’s Liberal Community Safety and Correctional Services Minister, last March. “These [SLAPP] cases have little or no merit,” said Attorney General Madeleine Meilleur in the Canadian Underwriter article on the bill. “Most are dropped before the lawsuit goes to trial, sometimes just weeks later. Meanwhile, the damage is done. Financially and emotionally drained, the target of a strategic suit is effectively silenced.”

Nongovernmental associations had promoted this legislation, having suffered the negative impact of SLAPP suits. “On our shoestring budget, we’ve been forced to pay a huge sum for liability insurance, just in case a SLAPP suit should occur,” testified Sandy Buxton, president of the Midhurst Ratepayers’ Association, at an October 1st legislative hearing. “Some of our most generous donors have requested anonymity, fearing an attack of some kind by the developers.”

“The Protection of Public Participation Act will put a stop to the growing use of lawsuits used to silence and dissuade individuals from freely expressing and broadly participating in matters of public interest,” added Eileen Denny, president of the Teddington Park Residents Association. “It provides a defined purpose and a quick review process for identifying and dismissing lawsuits via motion. The act also proposes cost consequences that discourage strategic lawsuits from starting.”

Canadian attorney Derek J. Bell thinks the PPA could have some “real teeth.” If a defendant in a potential SLAPP suit invokes the PPA, the court must hear the defendant’s motion within 60 days, during which time all other activity in the case is suspended. If the court rules that the case is a SLAPP suit, the defendants could get more than court costs on the motion, up to “full indemnity” on the entire SLAPP action itself, and potentially even require the initiator of the SLAPP suit to pay damages.

In the U.S., 28 states have anti-SLAPP laws, but many are quite restrictive regarding the circumstances under which an anti-SLAPP action might be brought. Twenty-two have none at all. Think this isn’t a real issue? Monika Bauerlein, the CEO of Mother Jones, and Clara Jeffrey, the editor-in-chief, wrote last month about a suit SLAPPed against the magazine lodged by Idaho billionaire Frank VanderSloot. Mother Jones had alleged that VanderSloot and his company, Melaleuca, had made substantial donations to Mitt Romney’s 2012 election super-PAC and had had trouble with regulators. One of Romney’s national finance chairs, VanderSloot filed a defamation suit against Mother Jones and specifically against the reporter of the story, Stephanie Mencimer, and Bauerlien, the latter because she tweeted about the Mencimer coverage. Mother Jones won in court that its statements were true, but that still left the magazine with $650,000 in costs that it had incurred in fending off the litigation. The reason? Partly, it is because the case was filed in Idaho, which doesn’t have an anti-SLAPP law.

The lesson of Canada’s personal freedom ranking in the Legatum Institute’s “Prosperity Index” is that you can’t simply assume that personal freedom is a given. A society has to fight for it, protect it, shore it up against attacks from special interests that would be better off if citizens were quiescent and inconsequential. It looks as though in Canada, personal freedom has for some years running been a core value that inspires much of the work of that nation’s nonprofit sector. In the U.S., we could compete for the “land of the free” title if personal freedom were ratcheted up the priority list of nonprofits engaged in public policy at the state and national government levels. Perhaps it’s time for a federal anti-SLAPP law (perhaps along the lines proposed by Texas Republican Blake Farenthold whose 27 co-sponsors on the SPEAK FREE Act of 2015 include 19 Democrats). Maybe the U.S. might become a little freer as a result.—Rick Cohen