I recently came across an article about a father who is being forced to pay legal fees for the church he was suing, the church who organized protests at his son’s burial. His son was killed in action. Here’s a snippet from the CNN article as to why the church was protesting at the funeral:

Members of the fundamentalist church based in Topeka, Kansas, appeared outside Snyder’s funeral in 2006 in Westminster, Maryland, carrying signs reading “You’re going to hell,” “God hates you” and “Thank God for dead soldiers.” Among the teachings of the church, which was founded in 1955 by pastor Fred Phelps, is the belief that God is punishing the United States for “the sin of homosexuality” through events such as soldiers’ deaths.”
Mr. Snyder’s lawsuit initially met with success, receiving a verdict in his favor and an award of $8 million dollars. The church later appealed the ruling, which was reversed, and now the father has been ordered to pay $16,000 for their legal fees. Jeff and I were talking about how ridiculous this was: a father sues to protect the sanctity of his son’s funeral, and ends up having to pay crazy legal fees for the people that invaded that sanctity.
This article reminded me about something I learned in my remedies class: anti-SLAPP motions. Strategic Lawsuits Against Public Participation. I remember having to memorize what these were for and how they could be used, and thinking: this is a waste of time. Not so much. It’s through this legal method that the church was able to get an award of legal fees from the plaintiff. Surprisingly, just as I was thinking of writing this blog entry, the Orange County Lawyer published an article on anti-SLAPP motions, “Avoid SLAPP Motions,” so I will let them explain some basic definitions. Anti-SLAPP, codified in the California Code of Civil Procedure (“CCP”) Section 425.16, was “[e]nacted in 1992 as a deterrent to the filing of non-meritorious lawsuits which prevent citizens from exercising petition or free speech rights.” Mr. James Moneer proceeds in his article to describe the anti-SLAPP motion as the “most powerful dispositive motion available,” and “a ‘super summary judgment motion’ with a nuclear warhead attached.” One of the things that makes this motion so powerful is that there is a “mandatory award of reasonable attorney’s fees and costs.” Ah-ha.
What is the point of this motion? It was basically instituted as a way to protect free speech. The church argues that their protest was simply an exercise of their free speech rights. A lawsuit to prevent this free speech rights is highly susceptible to an anti-SLAPP motion because of the rights involved. I think that, as Americans, we can all recognize the importance of free speech, of being able to protest injustice, being able to assemble and express our opinions. And yes, these rights should be protected. But where do we draw the line?
It seems the Supreme Court will be addressing these issues in the near future.