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Unintended consequences

Reader comment on item: Waging Jihad Through the American Courts

Submitted by societyis2blame (United States), Mar 21, 2010 at 15:08

I appreciate and agree with Mr. Pipes' motives but the legislation he supports needs to be better defined and constructed before I could support it.

The Anti-SLAPP measure he cites (The Citizen Participation Act (H.R. 4364)) states that:

"The Citizen Participation Act protects both petition activity and speech or conduct in connection with an issue of public interest with a set of procedural mechanisms. An "issue of public interest" includes any information or opinion related to health or safety; environmental, economic or community well-being; the government; a public figure; or a good, product or service in the marketplace." There is an exemption that "To protect against abuse of the statute, the bill may not be used to dismiss any claim brought solely in the public interest or arising from advertising speech, as defined in the Act. "

I appreciate the need to prevent deliberate "Cloward-Pivening" of one's political enemies through the courts, which jihadi-oriented groups engage in as much or more than domestic anti-American organizations such as ACORN.

However, this Act as phrased covers a wide variety of lawsuits that should not be realistically grouped with those activiites - basically any suit that a judge sees fit to call "in the public interest." The lack of any externally-verifiable criteria renders its application wholly subjective.

I'm speaking from repeated personal experience with cases which I have worked on here in CA in which Anti-SLAPP has been used to obstruct and delay normal civil suits for torts such as fraudulent concealment of property defects and fraudulent business accounting, not for the defamation and civil-rights actions Mr. Pipes is focused on.

Procedurally, any lawyer can tell you that proving a "prima facie" case is virtually impossible in cases without prior discovery being conducted. Unless defendants have been gracious enough to admit wrongdoing on the record prior to suit, you end up with almost impossible burden of proving the merits of your claim without discovery (Anti-SLAPP having forestalled that process), and you are then subject to an immediate appeal which delays your case for a period of many months, if not years.

Anti-SLAPP has its place but the scope of suits which it covers must be much more strictly limited and have some objective component, discovery must be available to prove the "prima facie" case, and the immediate appeal should only be available under an extraordinary writ schedule that gets you back in Court fast enough to deter defendants from using it as a mere delaying tactic.

Mandating "loser pays" for defamation and civil rights claims stemming from criminal investigations or statements made therein, or simply barring suits based on statements made in furtherance of legal proceedings (similar to the restrictions of California Civil Code ยง47) would achieve the same ends without interfering with lawsuits having nothing to do with jihadi lawsuit abuse.


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