By J. DeVoy

Although SLAPP suits are uncommon events, they influence real-world, extradjudicial interactions between different entities – especially in disputes.  Groups and individuals can leverage tacit threats, insinuations and asymmetries of power to silence their opposition without ever going to the courthouse.  Similarly, just as the broad effects of SLAPP suits have trickled down to apply outside of litigation, so too will the benefits of the Citizen Participation Act, which provide defendants with remedies for lawsuits that seek merely to silence them.

I have been SLAPPed in my own way.  In 2006, a professor circulated letters to the entire faculty and administration of my undergraduate institution, accusing others and me, all editors of a newspaper we created, of being racist, proponents of genocide, and bigoted; he further demanded sanctions against us.  None of this came to pass.  The school’s administration sought our silence by offering an apology from the professor — an apology that never came.  (He did, however, make a vague statement to us that included the phrase “teachable moment” before it was popular.)  I therefore have no compunction about sharing this story, especially in light of this month’s focus on SLAPP issues.

I. Three Friends and I Discover Journalism and the First Amendment.

In April 2004, four mouthy and egotistical friends came together at my undergraduate college to do something bold and new.  I was one of them.  The year had been a frustrating one: We had been lectured ad nauseam by the Dean of Students about our widespread distribution of a list titled 10 Things You Can’t Say on Campus – a brief screed against administrative waste, blatant quotas and bloated sports programs – and encountered difficulties getting our voice heard in the existing student newspaper.  Combining our talents, time and connections, we decided to create our own newspaper.

Armed with $500 from the Leadership Institute and Microsoft Publisher ’98, our paper – we’ll call it The Herald – was born.  Intended to have a libertarian/conservative bent and take-no-prisoners attitude, we considered nothing to be sacred.  We called out the school’s residence life office for confiscating and destroying one editor’s beer pong table.  The student government’s incompetence was ridiculed when its largest event of one school year, a concert, went far over budget; the event was mocked in a satire piece that concluded in the stage’s collapse and demise of the entire featured band.  (Many tears and hurt feelings from the student government ensued; we laughed.)  We tackled other issues, such as campus visits by controversial figures, including Syrian diplomats.

The Herald was a thrilling endeavor, but a taxing one.   The paper grew to proportions the four driving members never truly anticipated.  The Herald‘s alumni include members of the bar, law students, accountants, bankers, political operatives, teachers and other graduate students.  While being good training for meeting deadlines, conducting research and producing good writing under considerable pressure, the paper was an intense grind.  Yet, because of our collective diligence,
 our publication became the most-read – and most controversial – on campus.  Just a few weeks away from its sixth birthday, the publication lives on today.

II.  The High Price of Free Speech.

In early 2006, one professor (say, Professor Pissant, or just “Prof. P”) took umbrage at our content.  Instead of ever identifying these issues to us, or reaching out to any member of the paper, he took matters into his own hands.  Prof. P sent a letter accusing me and other editors of racism and advocating “genocide” to every member of the faculty, distributing physical copies of it into every professor’s individual mailbox.  Prof. P then distributed another letter throughout the administration, to academic deans and the college’s President himself.  In this letter, Prof. P  sought sanctions against me and other editors, including mandatory diversity “sensitivity” training.

On a college campus, the only thing more serious than being accused of racism is being accused of rape.  Rape allegations, however, generally are not made by tenured professors.  Additionally, they are not hand-delivered to the inboxes of every faculty member and do not originate on the desk of the institution’s President.

My fellow managing editor at the time, now a law student at another school, worried about the consequences with me.  In addition to affecting law school admissions, any repercussions would have effects on our character & fitness applications in any state.  We were convinced we had done no wrong.  Fortunately, so was our faculty advisor.

Our paper’s advisor, a former S.D.N.Y. clerk, supporter of free speech and mentor to us all, acted as our surrogate in dealing with the school’s administration.  Without any convincing on his part, the administration concluded that our exercise of First Amendment rights through the paper was not racist or bigoted in any way.  Much damage had been done, though, through Prof. P’s letter to every member of the school’s faculty.  Our class selection for the subsequent 2006-2007 school year, our senior year, was limited by fear of other professors’ prejudice and reprisal based on Prof. P’s accusations.

The college’s administration promised us a meeting with Prof. P, but it was never scheduled.  We heard, but could never confirm, that he refused to meet with us out of fear that those named in his letter would bring a defamation suit against him.  While a defamation claim against Prof. P might have succeeded, it wouldn’t accomplish what we sought: To ensure Prof. P, or any other tenured professor, would never again abuse his or her power over students in the way he had.

III.  Finally, a Remedy?

To this day, it’s shocking that Prof. P, a tenured professor, used his power as he did against students only 20 years old.  While not the same as a SLAPP suit, the basic principles are identical: One party with all the power can hold a hapless defendant hostage for offending its delicate sensibilities, however meritorious and constitutionally protected the defendant’s speech.  More shocking is that this affair occurred within the collegiate context, where free inquiry, debate and rigorous analysis are supposed to be celebrated, rather than silenced through fear and intimidation.

A Federal anti-SLAPP law like the Citizen Participation Act wouldn’t address this particular situation.  But it would provide momentum for groups like the Foundation for Individual Rights in Education to further fight against campus speech codes and other restrictions on student expression.   This law could also embolden victims of such out-of-court misconduct to file harassment claims and expose these abuses of power.  Ideally, the effects of this bill will extend far beyond the pages on which it is printed.

The greatest effect of a Federal anti-SLAPP law, though, would be to remove the perverse incentives that exist for this exploitative censorship in the first place.  Congress’s passage of the Citizen Participation Act would send a clear message that such conduct is unacceptable.  And, while individual free speech would still be protected, the bill would dissuade people from trying to silence opposition in a manner that could blossom into litigation.

While every contributor to The Legal Satyricon is opposed to SLAPP suits, I have a personal interest in seeing the Citizen Participation Act become law.  Beyond writing to congressional representatives, informing everyone with an interest in this bill about how it can affect them is a great way to start.  Hopefully, this bill’s effects will not be limited to the courts.

13 Responses to ANTI SLAPP MONTH: My SLAPP experience

  1. Harry Mauron says:

    1. If it wasn’t a state school, STFU.
    2. What exactly is the “abuse of power” – that the professor stated his opinions (incorrect, for the sake of argument) about you and your speech? Or was there real defamation?
    3. The only harm you allege is that the professor’s opinions of your bunch influenced your “course selection”. Do you mean that other professors declined to exercise discretion in your favor? Or were there actual sanctions?

    • J DeVoy says:

      1. I would agree if the school had forbidden us to distribute the paper or thrown it out because of a particular article. That’s different from a professor accusing us of a litany of wrongs in order to punish us for something the school had no objection to us printing.

      2. He sought sanctions against us and, by accusing us all of being racists in letters distributed throughout the faculty, created a hostile learning environment and limited the courses we could take without fear of reprisal. The sanctions are problematic because the school would have readily given them to us if our conduct merited it. As for being called bigots and the like, it may have been defamatory in that context — it certainly was a misrepresentation of what we did.

      3. Well, there was other harm, but that was the main forward-looking consequence. I received one or two peevish e-mails from the faculty, including one from a professor I had for two courses and wanted to take additional classes with. There were no actual sanctions, but the punishment was having to go through this ordeal with faculty members and the administration.

      4. Not to be contentious, but have you looked into this issue on college campuses? I always knew that beating off allegations of various “isms” was difficult among the 18-22 ultra-liberal set and the academy, but I had no idea what a scarlet letter the mere allegation of racism would be until I had this experience. Even when there were no consequences, and no solid claims even brought, the affair hung around like the mild stink of week-old garbage. No professor should *bully* students like this. There’s a way to air grievances and seek appropriate academic sanctions when called for, in the case of things like plagiarism and dishonesty. Instead, by going over our heads, he wanted to coerce us into silence. It’s even less defensible when students are paying substantial amounts of tuition for the privilege of this abuse.

  2. 1. I think that his story is illustrative of a SLAPP, but he hasn’t claimed state action. Accordingly, I think that STFU might not be an appropriate order.

    2. His opinion seems to be clear – that someone in a position of power attempted to improperly wield that power to silence someone whose opinions he found distasteful.

    3. Did you ever attend college? Perhaps today, as an adult who knows his rights, I would laugh off Professor Pissant’s antics. However, I would imagine that a 20 year old, bound for law school, might take it differently. And… as a matter of fact, if the Professor so much as accused him of a violation of school policies, then there are sanctions — his law school applications would likely have required disclosure and discussion of the incident, and many state bars will require the same. For example, if he applied to the Florida bar, you can rest assured that this mere accusation by Professor Pissant will delay his admission by at least 30 days.

    • J DeVoy says:

      There was a lot of correspondence with various Deans that I’m semi-privy to: Prof. P’s letters are not a claim of “misconduct,” academic or otherwise, so I’m cool on most states’ bar applications.

    • Harry Mauron says:

      I see the use of government power (the lawsuit) to be a critical element of what makes a SLAPP a bad thing – without government power, the story is just a lesson in free speech and reputation in the (very broken) market of higher education.

      I feel the same way about proto-adult college kids who get burned playing with fire (whether 1A-protected or not) as I do about budding middle school bullies who get pounded by the HS-age kid with Downs’ syndrome.

      BTW – I survived college and GULC, plus two character and fitness exams that included more than one disorderly/DIP.

      • J DeVoy says:

        Fair enough. Like I said, this isn’t a SLAPP, but an analogy because of the similarity between government power through the courts and the total power a university has over its students. My hope is that a limitation on the courts’ power in SLAPP suits trickles down to similar situations that aren’t full-blown litigation.

      • SLAPPs are not only brought by the government. In fact, most SLAPPS are private causes of action.

        I don’t know what your second paragraph means.

        And yes, we all know that you can get through a C&F with a mark on your record. But, an incident like this can mean the difference between admission on September 1 and admission in December.

        • Harry Mauron says:

          I understand that SLAPPs aren’t only brought BY the government. But without government (the court in particular, but analogy to a state school could work) it’s just speech versus speech. Assuming a private school, all that happened was JD’s opinionated private speech and the professor’s (much weightier) opinionated private speech in response. Since it’s missing the government element, it’s not really analogous to a SLAPP.

  3. Ari says:

    Why don’t you name the professor? Everyone should be able to be aware of this professor’s dangerous bent toward censorship and political correctness. By not naming the professor, you endanger other students who might cross his path.

    • J DeVoy says:

      Good question, and one I wrestled with a bit. First, I don’t want to invite problems on the eve of character and fitness review. Even if that wasn’t the case, I don’t want to risk pulling my friends involved in this incident, who are law students or in other fields and seeking jobs, into additional scrutiny. I ran this piece by some of them before publication and we all agreed on this. But, if someone knew about this affair and posted names and other information in the comments, that’s on them.

  4. John says:

    Jay, we’ve spoken a few times about this episode, but I still am having a difficult time feeling comfortable with having an opinion on it. I wish there would’ve been a final direct communication between “Prof. P.” and the students. Maybe someday I will take the opportunity to speak with him on what he thinks of the whole situation.

    In any case, I like the illustration to SLAPP and am in favor whole-heartedly with your cause. I will take the time this week to send out some letters in support. Thanks.

  5. mc says:

    The Student Press Law Center is full of these kinds of stories. Upsetting? Yes, which is why I send them donations. Shocking? Sadly, no. There are always professors and admins who enjoy behaving like little dictators and smacking down students in a vulnerable position. This is not an isolated incident and in fact there are (sadly) a lot of people in society who think it’s OK or even good for a school to act like the speech police.

    The connection to SLAPP seems a little tenuous though. I see where you’re going with the principle of the thing, but I think the issue of free speech on campus is an issue that deserves its own category. A campus is something of a unique setting in that, unlike the world at large, it’s supposed to encourage a marketplace of ideas, even controversial or unpopular ones, from students and professors alike, to a greater degree than society at large, so that these issues can be discussed and thought about. In the post-Mccarthy era, I am also not sure that being accused of racism (or anti-genderism or Communism or some other ism) on a campus is comparable to being accused of rape or some arguably criminal offense.

  6. […] event, though, was my unintentional mentor and vizier, Robert Klump, who has already received some coverage in this blog.  Without his efforts, the event never would have […]

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