This information has been compiled to give social justice activists a brief understanding of trademark and copyright law as it relates to common questions and concerns that arise in social justice organizing.
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Strategic Lawsuits against Public Participation
Strategic Lawsuits against Public Participation, also known as SLAPP suits, ordinarily arise out of defamation lawsuits. Defamation is a common law tort whereby one citizen can sue another citizen for damage to reputation. The difference between an ordinary defamation lawsuit and a SLAPP suit is that the plaintiff in a SLAPP suit does not generally plan to actually win their lawsuit. Instead, SLAPP suits are intended to intimidate, censor, disparage, burden, and punish activists for exercising their right to free speech and protest. SLAPP suits are used against individuals who may have meager resources and are unable to afford the legal counsel necessary to help them protect their rights.
As one court has stated:
SLAPP suits function by forcing the target into the judicial arena where the SLAPP filer foists upon the target the expenses of a defense…The purpose of such gamesmanship ranges from simple retribution for past activism to discouraging future activism…Those who lack the financial resources and emotional stamina to play out the “game” face the difficult choice of defaulting despite meritorious defenses or being brought to their knees to settle…Persons who have been outspoken on issues of public importance targeted in such suits or who have witnessed such suits will often choose in the future to stay silent. Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.
Gordon v. Marrone, 590 N.Y.S. 2d 649, 656 (N.Y. Sup. Ct. 1992
The use of SLAPP suits as a harassment tool became so pervasive that beginning in the 1990’s, some states began adopting laws – commonly referred to as “anti-SLAPP” laws – to protect a citizen’s rights to engage in free speech. Not all of these laws are alike, but many of these anti-SLAPP laws offer defendants the opportunity to recoup their legal fees if they prove that they have been forced to defend themselves from a frivolous lawsuit. CLICK HERE to see if your state has anti-SLAPP laws and to get updates on progress of federal anti-SLAPP legislation. However, even if the defendant ultimately prevails with an anti-SLAPP suit, the defendant will likely have wasted multiple years defending their case. Thus, exoneration from a SLAPP suit, if it comes at all, will not come without years of time wasted on litigation and emotional turmoil, as well as the loss of thousands of dollars if a defendant is not lucky enough to live in the few states that have anti-SLAPP laws.
In the last twenty years, animal rights activists in particular have been a target of these suits, some for merely posting a blog on their personal website, and others for their acts of protest and political demonstration. The threat of these lawsuits is enough to make any social change advocate hesitate before expressing their opinion, in effect illegally chilling that individual’s exercise of the First Amendment.
CLDC is a national expert in defending activists and their campaigns from the threat of unconstitutional SLAPP suits. CLDC has a large brief bank and legal resources available for lawyers. If you are an attorney representing environmental or social change activists, please contact us. If you are an activist or organizer and a SLAPP suit has been filed against you, contact the CLDC immediately for assistance. In most states, you only have 30 days from when you were served with the lawsuit to file a response asserting constitutional defenses. CLDC provides trainings to activist campaigns on SLAPP suits.
Defamation in the Political Arena
Because the First Amendment protects our right to free speech, the common law legal claim of defamation can only be used against activity that is not protected speech under the Constitution. Essentially, there is no defamation of a public figure or concerning a matter of public concern unless the speaker knowingly and recklessly made a false statement with a “malicious intent” that caused injury to the affected individual. See New York Times Company & Ralph Abernathy et al. v. Sullivan, 376 U.S. 254 (1964). However, in the realm of SLAPP suits, the corporations and individuals who file the lawsuits routinely ignore these Constitutional safeguards. For example, even though animal welfare advocacy is an issue of public interest that receives Constitutional protection, see e.g. Dienes v. Associated Newspapers, Inc., 137 Mich. App. 272, 276, SLAPP suits against animal welfare advocates may be filed and proceed for years without any proof that statements made against them were false or made with a reckless disregard for the truth.
Animal Welfare Advocacy SLAPP suits
Letter to Editor in Scientific Journal:
Immuno A.G. v. Moor-Jankowski, 77 N.Y.2d 235, 567 N.E.2d 1270 (1991)(PDF)
In 1983, Dr. Shirley McGreal, who was chair of the International Primate Protection League, submitted a letter to the editor of the Journal of Medical Primatology. The letter criticized Immuno AG, a multinational corporation based in Austria, and their plans to establish a facility in Sierra Leone in order to conduct hepatitis research using chimpanzees. In January of 1983, Dr. J. Moor-Jankowski, the editor of the journal, submitted a copy of the letter to the corporation for comment or reply and specifically stated that the journal would not publish the letter if the allegations could be proven false. The corporation never provided proof that the allegations were false, and the journal eventually published the letter.
In December of 1984, the corporation sued the author of the letter, the editor of the journal, and six other defendants. As the New York high court stated in its opinion eventually dismissing the case after seven years of litigation, the case was a “libel action against the editor of a scientific journal, essentially for his publication of a signed letter to the editor on a subject of public controversy.” Although the lawsuit had initially been filed against eight defendants for two separate publications, the time and money-consuming litigation eventually exhausted seven of the defendants to the point that they paid off the corporation with “substantial sums” to be freed from the litigation. The editor of the journal was the only surviving fighter and had to endure seven years of litigation, including appeals to the U.S. Supreme Court, his own 14 day deposition, and hundreds of thousands of dollars of legal expenses. To the chagrin of all of the defendants who agreed to settle with the corporation, the New York high court ultimately dismissed the lawsuit because most of the statements were Constitutionally protected as statements of personal opinion. Additionally, the corporation failed to prove that any of the factual statements were actually false.
Starting in 2005, animal welfare advocates held weekly protests outside of Schumacher Furs and Outerwear, a retail store in Portland, Oregon. The protests usually involved a few dozen activists who would hold up signs with anti-fur messages, chant slogans, and play videos on portable televisions depicting animals being tortured and skinned alive for their fur. After two years of these weekly protests and public education campaigns that were successfully encouraging the public to choose more humane way to clothe themselves, Schumacher sued the City of Portland, In Defense of Animals, Animal Liberation Front, People for the Ethical Treatment of Animals, Inc., and several individuals, for claims of Intentional Infliction of Emotional Distress, Interference with Business Relations, Interference with Contract, Public Nuisance, and Trespass. The company argued that the city was a necessary party because it had allegedly failed to protect the company from illegal protest activity. The company requested damages from the city in the amount of $6.2 million, and from all the other parties for $6.6 million each. Although there was evidence of illegal conduct related to the protests, the company had no evidence that any of the named defendants were responsible for illegal conduct. Accordingly, the activists asked the court to dismiss the lawsuit under Oregon’s anti-SLAPP law, ORS 31.150.
Application of RICO to Animal Welfare Organizations
The court refused the company’s request to impute illegal conduct to the activists, stating “I find it was not objectively reasonable to sue the organizations and individuals [that] Plaintiffs were able to identify at the protests, or whose publications were identified as in the case of PETA, on the hunch that those organizations and individuals must be involved in the illegal activities of other protestors Plaintiffs could not identify. . . I granted the Motions to Strike because Plaintiffs did not produce evidence the prevailing defendants did anything illegal.” Additionally, the court vigorously chastised the company for filing a SLAPP suit:
Although Plaintiffs may have had meritorious claims against people whose names they did not know, or even against the City of Portland, they sued people against whom they had no evidence for $6.6 million, sought to restrict their First Amendment speech rights, and disparaged their reputations with accusations of criminal conduct, terrorist affiliations, and responsibility for “shutting down” a business whose financial solvency was questionable before the protesting activities began. This was an extraordinary abuse of the litigation process. . . . I find that awarding fees in this case will properly serve to deter putative plaintiffs from filing multi-million dollar suits against non-profit groups and private citizens engaged in First Amendment activities . . . .
Accordingly, the court dismissed the suit, and awarded legal expenses to the activists in the amount of almost $100,000.00.
Comins v. VanVoorhis, Case No. 2009 CA 15047-0 (PDF)
(9th Judicial District Circuit Court, Orange County, Florida)
In 2008, a blogger named Matthew VanVoorhis posted a YouTube video link to a video of a man named Chris Comins shooting two dogs, along with two articles expressing his concern, anger, and opinion on the incident. Comins was later charged with two counts of felony animal abuse for this incident. Despite the video documentation of the event and the pending felony charges, Comins sued VanVoorhis for defamation and “tortuous interference with a business relationship,” and has requested an unspecified amount of damages that at least exceed $15,000. Comins argues that the blog postings “contain numerous factual inaccuracies, gross exaggerations and damaging statements regarding Plaintiff and the incident.” He argues that the “blog posts are designed to incite violence and pose an imminent threat to Plaintiff and employees of his company.” Van Voorhis has filed a motion to dismiss the complaint and has filed counter claims in the lawsuit arguing that the lawsuit violates his First Amendment rights.
Resources on ALEC
ALEC: Corporate Interests Undermining Democracy in Our State Legislatures
Our state legislative bodies are in place to represent their respective constituencies, to uphold the democratic process, and work towards the needs of their citizens. What happens when a group that does not constitute represented individuals or work towards their interests in any way undermines this relationship between the people and their government? Recently, waves of bills have been introduced and passed in state legislatures that seem to contradict democracy rather than promote it: laws that cut off collective bargaining rights, roll back protective environmental regulations on businesses, and restrict voting rights, have all appeared in state after state. And if you suspect that such legislation was not drafted by your state lawmakers, you would be right: these bills are flooding in straight from the desks of corporate lobbyists of the American Legislative Exchange Council, or ALEC.
What is ALEC?
ALEC is a tax-exempt 501(c)3 “nonprofit” organization that works to promote corporate interests in public policy and espouses principles of free markets, limited government, and federalism . Based in Washington D.C., ALEC is primarily a membership organization composed of hundreds of state legislators, and representatives of large corporations such as ExxonMobil, Koch Industries, and Peabody Energy. Though it claims to be non-partisan, it works almost exclusively through Republican legislators and pass laws ideologically similar to the beliefs of its 1970’s founders- Henry Hyde, Lou Barnett, and Paul Weyrich, known as the godfather of modern conservatism and founder of the Heritage Foundation, the Moral Majority, and other ultra-conservative groups.
ALEC’s 990 form from 2010: http://www.commoncause.org/issues/more-democracy-reforms/alec/whistleblower-complaint/supplemental-complaint/EXHIBIT-22.PDF 990 forms are IRS forms that non-profit organizations must fill out annually detailing their mission, programs, and finances.
Membership is highly selective and partisan, and is only offered to Republican legislators at a bargain of $100 biannually. ALEC does not publicly disclose the names of corporate members which account for 80% of ALEC’s funding (about 6 million dollars annually). Unfortunately, in order to access a large majority of the information pertinent to documenting ALEC’s influence and model legislation, one must be a paying member.
In another direct strike to open government, it appears that one must be a member of ALEC to know who- and more specifically which of our elected representatives- are ALEC members. Legislators are often decidedly elusive when asked about involvement in ALEC. Recently representative Tom McMillan of Michigan answered “it doesn’t matter” when asked about his ties to the secretive corporate organization, though evidence from his recent voting record would suggest otherwise . One of the few known members of ALEC is Russell Pierce, an Arizona Senator responsible for pushing the recent unconstitutional Arizona anti-immigration bill, SB 1070, and who also has obscure connections to neo-Nazi separatist groups . Pierce was present at the ALEC gathering where SB 1070 was drafted word for word. Locally, ALEC recently met with Oregon legislators , though information on which representatives are actually members remains evasive. Keep your eyes peeled for legislation that exploits workers, health and safety, and the environment as ALEC continues to attempt to purchase legislation for it’s extremely wealthy corporate puppeteers.
Just a few of the approximately 300 corporations who are members of ALEC
|American Plastics Council||John Deere|
|Bank of America||Miller Brewing Company|
|BP America||Philip Morris Corporation|
|Center for Education Reform||Pharmacia & Upjohn|
|Pharmaceutical Research & Manufacturers of America||Chevron Corporation|
|State Farm Insurance Companies||Coors|
|Tobacco Institute||General Motors Corporation|
|United Airlines||GTE Corporation|
Who runs ALEC?
Rep. Noble Ellington, Louisiana
First Vice Chairman
Rep. Dave Frizzell, Indiana
Second Vice Chairman
Rep. John Piscopo, Connecticut
Rep. Linda Upmeyer, Iowa
Rep. Liston Barfield, South Carolina
Immediate Past Chairman
Rep. Tom Craddick, Texas
Private Enterprise Board Chairman
Mr. W. Preston Baldwin, Centerpoint360 (2011 Chairman)
To further demonstrate the power of the corporations and related groups that constitute ALEC:
Victor E. Schwartz, a Shook Hardy* partner and head of its Public Policy Group, chairs ALEC’s Civil Justice Task Force; Tom Moskitis, the American Gas Association’s Director of External Affairs, chairs the Energy, Environment and Agriculture Task Force; Bob Williams, founder and senior fellow of the corporate-funded Evergreen Freedom Foundation, chairs the Tax and Fiscal Policy Task Force; Bartlett Cleland, director of the corporate-financed Institute for Policy Innovation, chairs the Telecommunications and Information Technology Task Force, and Emory Wilkerson, associate general counsel for State Farm Insurance, chairs the Commerce, Insurance and Economic Development Task Force (http://www.pfaw.org/rww-in-focus/alec-the-voice-of-corporate-special-interests- state-legislatures).
*Shook Hardy is a large law firm based in Kansas City, MO that has represented many pharmaceutical companies as well as other corporations such as Microsoft, Sprint, Ford and most of the major Tobacco companies.
What does ALEC do and why should you care?
ALEC’s main function is to draft “model bills” and to “educate” legislators about the issues it wishes to promote. These bought-and-paid-for-bills often re-emerge word-for-word as law. Past examples include: many state and federal laws and draft regulations that gravely roll-back environmental protections, the Animal Enterprise Terrorism Act, laws limiting rights to collective bargaining, and anti-immigration laws such as SB 1070 in Arizona. Cuéntame, a public interest organization, released a YouTube video explaining the connection between ALEC and the law (http://www.youtube.com/watch?v=vuGE1VxVsYo). Recently, around 1,000 ALEC bills have been introduced annually into state legislative bodies with around 200 of these bills becoming law . In 2010, 115 of 826 bills proposed passed in state legislative bodies . This number is likely to grow with the increase of Republican legislators elected in 2010. The laws are usually introduced in waves in the hope of overwhelming legislative staff and public interest watchdog groups. A recent example of this includes the upsurge in ALEC-influenced bills introduced in Tennessee (http://www.tennessean.com/article/20110515/NEWS/305150011/Outside-groups-write-some-TN-s-most-controversial-legislation). The bills introduced in rapid succession included a “call to repeal the federal health care law, laws to weaken unions, and a divisive bill to ban Islamic Sharia law which even its sponsors admitted to not reading before filing.”
ALEC is able to do this ghostwriting because it acts under the veil of “organizing to educate lawmakers about public policy issues.” Most of these bills are written at the tri-annual ALEC conferences, gatherings where the group sponsors golf tournaments and lavish parties at night .
Legislators can attend these events without acknowledging their corporate sponsorship because they are hosted as ALEC events. If this were interpreted as lobbying, as it should be, ALEC would lose its status as a tax-exempt federally recognized non-profit group pursuant to Internal Revenue Service regulations.
Our legislative bodies are not supposed to gather in such a secretive and non-public manner, and are not supposed to be unduly influenced by corporate funding in the form of corporate campaign donations–yet ALEC leadership justifies this by arguing that “legislators…will ask questions much more freely at our meetings because they are not under the eyes of the press, the eyes of the voters. They’re just trying to learn a policy and understand it. ” Often times, this means that the head of a corporation with a vested interest in the passage of a bill in a state legislature will be present and heavily influential regarding the drafting of a “model bill” at an ALEC gathering. Pathetically, the “model bill” later reappears verbatim as law.
Recently, ALEC has been behind extreme and unconstitutional legislation, such as the aforementioned Arizona anti-immigrant bill that became known as SB 1070. The Corrections Corporation of America, the largest private prison company in the US and an ALEC member, were present at the ALEC meeting where the Arizona immigration bill was drafted . ALEC was also found to be a driving force in the recent betrayal of the people of Wisconsin by governor Scott Walker, as evidenced in a report by a respected University of Wisconsin- Madison professor, William Cronon . After writing a popular blog post exposing ALEC as central in the appearance of bills in the Wisconsin legislature (laws that limit democracy as opposed to alleviating fiscal challenges), the Republican Party of Wisconsin unabashedly demanded to inspect records of Professor Cronon, specifically any of his e-mails from 2011 related to the governor or ALEC. ALEC has also produced a guide for state legislators on how to try to repeal the recent federal health care bill signed by President Obama .
Why is this bad for democracy?
ALEC undermines the public interest in what is supposedly a democratic country where all people are created equal. That is, until someone bribes legislation to the contrary in the interest of a group representing the nation’s largest corporations. ALEC buys the influence of our legislators and uses them to push forward laws that further the interests of corporate America, and in doing so, strips “we the people” of the constitutional freedoms that make up our democracy.
ALEC is a group promoting the interests of large corporations, not the people. This group consistently works under the radar of the media and journalists and has received little public review or criticism considering the gravity of its actions. ALEC uses shady tactics, including only allowing high paying organizations to be members or to access its model bills, not allowing interviews, or disclosing which legislators are members, and keeping much of its “work” behind closed doors. ALEC essentially lobbies through the guise of “educating” legislators on “best practices.” This “education” also takes the form of lavish ALEC gatherings where legislators get “scholarships” from unknown sources. These tactics are impermissible for a tax-exempt organization, which adds further concern as to why the IRS has not investigated these blatant violations. (You can bet if a lefty non-profit engaged in these same actions they would be investigated, fined and shut down.)
The agenda of ALEC also undermines the rights of real people in its legislative goals, in which it:
seeks to make it more difficult for people to hold corporations accountable in court; gut the rights and protections of workers and consumers; encumber health care reform; privatize and weaken the public education system; provide business tax cuts and corporate welfare; privatize and cut public services; erode regulations and environmental laws; create unnecessary voter ID requirements; endorse Citizens United; diminish campaign finance reform and permit greater corporate influence in elections (“ALEC: The Voice of Corporate Special Interests In State Legislatures,” People for the American Way).
ALEC is a highly influential group in our government and the people deserve to know how it is shaping our laws and how to contest the presence of corporations in private back rooms with our elected representatives. ALEC effectively constitutes the antithesis of democracy. It is contrary to buy or bribe representatives to legislate laws intended to benefit a particular industry or corporation without disclosure or checks and balances. Why are non-ALEC legislators not screaming and yelling about this? Why don’t we as constituents know more about ALEC?
What can you do?
First, you can ask your elected representatives if they are ALEC members and implore them to consider the needs of their constituency above those of a giant corporate interest group. Below is a template letter to send your legislator to find out more about ALEC in your state and to tell them that you oppose ALEC and its bills supporting industry and think that it is bad for democracy.
If there is a bill pending in your state that you know or suspect has ALEC behind it, send a letter to the editor of your local newspaper or other local news publication to let the public know who ALEC is and why its bills should not be supported. Below is a template letter to the editor to start, just add the details of the specific bill that you are writing about.
ALEC’s 38th annual meeting is being held at the Marriott in New Orleans from August 3rd-6th. Press is screened through ALEC and previous registration is required. For more details, visit: http://www.alec.org/AM/Template.cfm?Section=media.
Sources on ALEC
- The ALEC website itself is a good place to start, though much of it is restricted to members. http://alec.org
- An in-depth look at ALEC and its role in state legislatures. http://www.pfaw.org/rww-in-focus/alec-the-voice-of-corporate-special-interests-state-legislatures
- A slightly outdated site from the earlier 2000s, but useful nonetheless. http://alecwatch.org/
- William Cronon’s blog entry exposing ALEC as a main player in Wisconsin’s recent turmoil. http://scholarcitizen.williamcronon.net/2011/03/15/alec/
- The State Policy Network is a conservative group that often works alongside ALEC in coordinating state-level think tanks. http://www.spn.org/
Sources for Researching Conservative Groups