Surviving a SLAPP Lawsuit: Advice for Education Activists

RECAP

It’s been about a year since I first created this blog and wrote “Myers-Briggs and Why MVP Doesn't Work at Scale.”  I started this blog with that article because there was simply too much in my head I wanted to communicate and I didn’t think Facebook was conducive for laying out my case in what I thought was a well presented argument outlining my reasoning.  Little did I know then that my words would eventually be cited in a Strategic Lawsuit Against Public Participation (SLAPP) against me, courtesy of Utah-based Mathematics Vision Project (MVP), the math curriculum vendor which provides resources and professional development to my school district (Wake County Public School System, NC), one of the top 15 largest districts in the USA.

As my readers may know, I countersued, and weeks later MVP and I reached a joint settlement as summarized in a statement which is available at this link. As in the case of most civil settlements, neither party is allowed to talk about elements of the case.  

For my efforts, I am left with a $44k legal bill because Utah doesn’t have a decent anti-SLAPP law, and I didn’t have an umbrella policy on my homeowners’ insurance to cover such situations.  My supporters have contributed generously to various fundraisers, and now we are in the homestretch of retiring this debt.  If you want to help, the GoFundMe is here.   

                                                                                     

Disclaimer: I am neither an attorney nor an insurance advisor.  Seek professional advice if you want specifics about what I have written here.

WHAT IS SLAPP?

Without talking directly about my particular lawsuit, I would like to share some advice with the many fellow parents and educators who are using social media or the public square (ie. school board meetings) to fight for the educational futures of students everywhere.  

In the event you are being effective in your critique, you too may become a target of a SLAPP lawsuit.  According to Wikipedia, these are “lawsuits that are intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.” 

According to Columbia Journalism Review, “The plaintiff typically is not trying to remedy a quantifiable economic loss; rather, he is trying to retaliate or send a message, at whatever cost and whether or not he wins.”  The point of a SLAPP suit is not to win, but to cause you aggravation to the point you SHUT UP.

The California Anti-SLAPP Project writes, “SLAPPs are ‘camouflaged’ as ordinary civil lawsuits,” often citing legal wrongs such as defamation, libel, slander, interference with contract or economic advantage.

THERE'S INSURANCE FOR THAT!

BEFORE you find yourself in such a situation, I suggest you add a rider to your homeowner's insurance which covers lawsuits due to accusations of libel, slander, etc.  This will provide legal support in the event you are sued by an entity backed by plenty of financial resources (for example, such as a university, government school system, or a Bill & Melinda Gates Foundation beneficiary such as OpenUp Resources, which partners with MVP).  The cost of this insurance may be less than $50 per year, which is a fraction of what defending a SLAPP lawsuit might be. For example, Allstate has a personal umbrella policy, the likes of which is a must-have for bloggers and other social media activists.

BEST PRACTICES FOR SOCIAL MEDIA CRITIQUE

While free speech privileges are broad, it’s helpful to be able to defend what you write or say in a public forum using appropriate argument, logic, and context.  If you can do that, then your lawyer’s defense of you in the legal forum, if required, will be much easier.  The article “Blogs Can Get Insurance Clients ‘SLAPP’ed!” talks about “Blog Risk Management” and lists out many questions related to mitigating risk in your social media writings.  Again, the point of a SLAPP suit is not necessarily to win, but to silence opposition.  So even if you are 100% right and have data to back it up, you still may become a target if your critique and arguments are being effective.  

I personally do my best to exercise common sense and integrity when writing in blogs or social media.  I recommend you do the same.  This includes:

• Document your sources and your interpretations for the data you use.  Even if you are wrong or make a mistake, by explaining your logic you are helping your case.
• Likewise, if you are stating an opinion, label it as such if it’s not intuitively obvious.  
• Exercise care when using words which may have legal definitions, such as corrupt, extortion, lie, falsify, deceive, murder, robbery, etc.  
• Avoid using extreme qualifiers like ALL, ALWAYS, NONE, NEVER.  Instead use SOME, SOMETIMES, MANY, USUALLY, OFTEN, etc., as appropriate.  Again, this is common sense writing practice.
• Avoid inflammatory rhetoric and language which could be construed as offensive.  You want your arguments to be fact-based, not emotion-based.
• When using parody or satire as part of your speech, label it as such if it’s not completely obvious.  A SLAPP-happy attorney might claim your humor intended to convey truth, even if most people would know otherwise.  
• Establish your privilege as having a right to your opinion about what you’re saying or writing.  (Example, “As a parent who has witnessed….  I believe… “)

CONCLUSION

At the end of the day, the First Amendment reigns supreme.  The standard is very high to prove libel and slander.  So unless you are intentionally crafting patently false statements about the subject of your critique, you should generally be safe from the worst case scenario, which would be to be sued - AND LOSE.  

However, the best case scenario in a SLAPP suit is not too good either.  Having a suit dismissed can still leave the defendant with a huge legal bill.  So in some regard the plaintiff has scored a victory, but usually at the expense of “public relations” erosion.  In “If You Can't Say Something Nice, Get Insurance”, a spokesperson at online review site Yelp says,  "Courts have consistently ruled that consumers have the right to share their truthful experiences. As a result, businesses that choose to sue their customers to silence them, rather than address their comments, rarely prevail and often bring additional unwanted attention to the original criticism."

In the area in which I am an activist - education - the opposition runs in vicious circles and has dollars backing them.  They are often driven by ideology, and may find it more effective to file a SLAPP lawsuit to silence criticism from an individual, versus engaging in debate using publicly available data and peer-reviewed research.   

According to the counterclaim documents my attorney filed (which are a matter of public record in Utah):

“This case is about a company attempting to use the judicial process to punish a parent who dared to voice reasonable concerns that the company’s educational program was not beneficial to his child and other similarly situated children. Instead of addressing such concerns in a productive dialogue, the company is seeking to silence them outright. But it is a parent’s obligation, right, and privilege to take action and, in this case, speak publicly to government officials and institutions and to other interested parents about matters of such important public concern as the well-being and proper education of children. Moreover, the Supreme Court has time and again emphasized that commentary like the statements at issue here—issues of public importance—’occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.’”

That feels all good and such, but it would be much better to avoid it all together.  But don’t do that by sitting on the sidelines and remaining silent.  Speak up for what you believe in!  And do it with integrity, accuracy, and boldness!  (And get that insurance umbrella policy!)

Good luck to you, fellow education warriors! 

Learn more about SLAPP at Protect the Protest.

And if you want a very funny (but totally inappropriate) take on SLAPP (including a song!), watch SLAPP Suits: Last Week Tonight with John Oliver (HBO).  Warning: Language.