By Maslyn Locke, CLDC Law Clerk
CLDC’s motto is “assert your rights, we’ve got your back.” In order to ensure that activists and targeted community members know the law and how it might impact them and their political work, we continue to develop legal research, strategies and resources in the ever-changing minefield of State repression (whether by government or corporations). It’s safe to say that the only benefit of the Trump era is the fact that more and more people are coming together, stepping up, and actively protesting injustice and the decisions coming from Washington, DC. With that, however, it’s expected that more and more attempts will be made to silence dissenting voices through the use of the legal system. Over the last 14 years the CLDC has developed experience and expertise in defending activists against SLAPP and RICO suits and has been working to put together a guide for activists and attorneys alike to assist with the defense against both SLAPP and RICO suits. This guide will include checklists and specific descriptions of what a plaintiff will generally be required to prove in a SLAPP or RICO suit against you in (primarily) federal court, as well as potential defenses in order to get the case dismissed as quickly as possible so you and your movement can get back to the important work at hand (like saving the planet from catastrophic climate change). Now, because we don’t want these gems getting into the hands of the evildoer lawyers representing evil corporations, some of our resources will be shared upon verification that you are on the side of good in the world.
What is SLAPP?
SLAPP stands for “Strategic Lawsuit Against Public Participation.” SLAPP suits typically charge the defendant-activist or organization with defamation or some other form of tortious misconduct, framing the lawsuit as legitimate when the actual goal is to intimidate and silence activists and target the right to free speech. The plaintiff in a SLAPP suit does not intend to succeed on the merits of the case. Rather, the plaintiff achieves his or her goal by abusing the litigation process in order to attack a defendant that has engaged in a constitutionally protected activity, derailing their effective organizing work, and/or chilling future activists from participating in your campaign, as well as potentially sucking financial resources from your campaign in order to defend yourself in Court.
What is RICO?
A more recent development in the world of SLAPP suits has been the use of the federal RICO statute as a means by which to bring cases against activists. The Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. § 1961-68, was enacted by Congress in 1970 with its intended use being to address the criminal activity of the mafia. Lately, however, the statute has been used to establish a cause of action against activists in the form of a SLAPP suit, alleging, most commonly, that an activist has participated in an enterprise, partnership, association, or group and committed at least two acts of “racketeering activity.” The law itself lists several activities that qualify as a racketeering act, but typically activists will be alleged to have committed some type of fraud. It is also likely that activists, having been charged with the commission of these activities, will be additionally charged with conspiring to commit these racketeering activities. A RICO conspiracy requires a person to specifically conspire to violate any of the provisions of RICO itself, making it more specific than simply conspiring to commit a crime in general. Ordinarily, a conspiracy requires an agreement between two or more persons and an intent to achieve a certain objective which is the doing of either an unlawful act or the doing of a lawful act by unlawful means. In contrast, a RICO conspiracy would require an agreement among allegedly involved defendants to commit a pattern of racketeering activity that is in some way connected to the activities of an enterprise/group/association.
What is the difference between SLAPP and RICO?
The use of RICO against activists essentially functions as a SLAPP suit but the racketeering activities required under RICO differ from the allegations often claimed by the standard SLAPP-suit. This means torts like defamation or tortious interference with business relations can be used by a plaintiff to charge an activist with a SLAPP suit, but these are not sufficient to support a claim under RICO.
What to expect in a SLAPP or RICO suit:
In both cases, a defendant can expect the original claim against him or her to be pled haphazardly, simply alleging anything and everything that could potentially support a cause of action against a defendant because, again, the entire point of a SLAPP suit is not to win, but to keep activists occupied fighting in court while simultaneously deterring others from exercising their constitutionally protected rights to free speech and association. Whether the plaintiff is a major corporation or a pro se individual, both SLAPP and RICO complaints tend to lack specificity and a showing as to why that plaintiff is entitled to relief, clearly reflecting the goals of the SLAPP suit by forcing defendants to respond to every insane allegation against them, wasting time and resources and discouraging activism. Normally, you must be personally served with a summons and complaint in order to officially initiate the lawsuit (but not always), and you normally have a very short time window to respond. If you are served with such a lawsuit, or you get wind that one is forthcoming, contact us immediately so we can help you. You MUST act quickly to get your legal team assembled and engaged.
The use of SLAPP and RICO suits will continue to pose a severe threat to activists everywhere and it is becoming increasingly important for all of us to know how to defend ourselves when going out and standing up for what we believe in. It is our hope that this guide will be a helpful tool for anyone defending against a SLAPP or RICO suit, and please check back for the release of this resource!
Knowledge is Power.