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CAIR Must Be Fought, Pt. II By: Henry Mark Holzer
New Media Journal | Wednesday, March 28, 2007


Last week I wrote an article in these pages entitled A Call To Arms: Cair Must Be Fought. In my article I repeated what I have been saying (and writing) since the Council on American Islamic Relations (CAIR) began attacking the free speech rights of American citizens: that CAIR must “be countered with a non-profit 501(c)(3) entity that could raise tax-deductible contributions for the sole purpose of fighting CAIR in court.” Examples of CAIR’s court cases, including its most recent on behalf of the “flying imams,” were discussed.

As a result of my article, I’ve been asked exactly how CAIR could be fought in court. There are many ways, and the remainder of this article explains just one of them.

At least 23 states and one territory have statutes known by their acronym SLAPP—“Strategic Lawsuits Against Public Participation.” [1] Actually, the laws are known as “Anti-SLAPP” statutes because they protect “public participants” from lawsuits brought by people who want to silence them.

Since the “flying imam” flap originated in Minnesota, I’ll use that states’ “Anti-SLAPP” statute as my example of what smart, tough lawyers can do to the bullying thugs of CAIR. The statute appears in bold face below; my comments are interspersed.

But before getting to that, I want to set the stage.

A broadcaster urges the FBI to search every mosque in America, a blogger demands the state department deny visas to Muslims, a newspaper editorial insists that the Attorney General prosecute citizen Islamofascists for treason. 

Next, on behalf of itself and/or the allegedly injured parties, CAIR sues everyone connected with the incident.  Also sued, as in the flying imam case, are “John Does”—other people allegedly connected to the incident whose names are not yet known to the plaintiffs.

These defendants are not powerless.  These defendants are not sheep going to slaughter under CAIR’s knife.  Every one of these defendants, every time, should invoke an available “Anti-Slapp” statute, like this one.

Minnesota Statutes Annotated
554.01. Definitions

Subd 1. Scope. The definitions in this section apply to this chapter.

Subd. 2. Government. "Government" includes a branch, department, agency, official, employee, agent, or other person with authority to act on behalf of the federal government, this state, or any political subdivision of this state, including municipalities and their boards, commissions, and departments, or other public authority.

This is a broad definition of “government.”  It is meant to include every type of entity and individual.  If CAIR or another plaintiff claims that the “government” requirement of Section 554.03 (below) is not satisfied, the likelihood is that the court would interpret this section broadly to embrace, for example, a “division” of an agency and a “representative” of an “official.”

Subd. 3. Judicial claim; claim. "Judicial claim" or "claim" includes any civil lawsuit, cause of action, claim, cross-claim, counterclaim, or other judicial pleading or filing seeking damages for an alleged injury. "Judicial claim" does not include a claim solely for injunctive relief. 

This is an important provision, for two reasons.  First, it means that the statute includes every conceivable manner in which a claim can be formulated.  However, the statute textually embraces only those claims seeing money damages.  Were CAIR for itself or another plaintiff to seek only an injunction—unlikely because injunctions against speech are virtually impossible to obtain—this statute would not be available to the defendant.

Subd. 4. Motion. "Motion" includes any motion to dismiss, motion for summary judgment, or any other judicial pleading filed to dispose of a judicial claim.

This is a standard, unexceptional definition.

Subd. 5. "Moving party" means any person on whose behalf the motion described in section 554.02, subdivision 1, is filed seeking dismissal of an action under this chapter.

This is a standard, unexceptional definition.

Subd. 6. "Public participation" means speech or lawful conduct that is genuinely aimed in whole or in part at procuring favorable government action.

This is one of the statute’s most important provisions because it broadly embraces speech and conduct so long as its intention is to influence government action (like searching mosques), but not necessarily on behalf of the speaker/actor who has now become a defendant in a SLAPP lawsuit.  The only textual limitation in this definition is that the conduct be “lawful” and that the speech and conduct be “genuinely” motivated.

Subd. 7. "Responding party" means any person against whom a motion described in section 554.02, subdivision 1, is filed.

This is a standard, unexceptional definition.

554.02. Protection of citizens to participate in government

Subd 1. Applicability. This section applies to any motion in a judicial proceeding to dispose of a judicial claim on the grounds that the claim materially relates to an act of the moving party that involves public participation.

Notice that four of the terms in this section—motion, judicial claim, moving party, public participation—have been defined in the previous section. 

Subd. 2. Procedure. On the filing of any motion described in subdivision 1:

(1) discovery must be suspended pending the final disposition of the motion, including any appeal; provided that the court may, on motion and after a hearing and for good cause shown, order that specified and limited discovery be conducted;

This subsection means that once a defendant who believes he has been sued to punish him for “public participation—that is, for having said or done something allegedly offensive to Islam, CAIR, or any of its interests—makes a motion (i.e., asks the court) to dismiss the case because it is a SLAPP suit, “discovery” stops.  In other words, neither party—subject to the statute’s proviso that the court can allow limited discovery—can take depositions or seek to obtain documents.

From the defendant’s perspective this provision is the proverbial two-edged sword.  Although the plaintiff can’t harass the defendant by employing the various oft-devastatingly time-consuming tools of discovery, the defendant is unable to dig into the plaintiff’s motives and evidence.  This is, however, an acceptable price for a SLAPP suit defendant to pay for early termination of a spurious lawsuit.

(2) the responding party has the burden of proof, of going forward with the evidence, and of persuasion on the motion;

This is a crucially important provision (to be read in conjunction with Subsection (3) below).   Ordinarily, in civil litigation the plaintiff who has brought the lawsuit has the burden of proof—e.g., that the broadcaster/defendant really did defame the plaintiff. 

This said, one would think that when a defendant claimed that the plaintiff’s lawsuit was a SLAPP suit aimed at silencing and/or punishing the defendant for something he said or did, the defendant would have to prove that.  Not so.  Under the statute, when the defendant makes the SLAPP motion to dismiss the case, it is the plaintiff who has the burden of proof.  What is that burden?  The next subsection contains the answer.

(3) the court shall grant the motion and dismiss the judicial claim unless the court finds that the responding party has produced clear and convincing evidence that the acts of the moving party are not immunized from liability under section 554.03; and

In other words, CAIR sues, the defendant moves to dismiss the lawsuit on SLAPP grounds, and CAIR must prove—not by the usual, lesser standard of proof by a “preponderance” of the evidence, but by the higher standard of “clear and convincing” evidence”—that the defendant was not immune from suit.  We get to that immunity in a moment, once we pass the next subsection.

(4) any governmental body to which the moving party's acts were directed or the attorney general's office may intervene in, defend, or otherwise support the moving party.

This subsection means that the government can, if it chooses, provide legal assistance to the defendant—either by actually becoming a defendant itself, or providing representation or otherwise supporting the defendant (which could include financially).

554.03. Immunity

Lawful conduct or speech that is genuinely aimed in whole or in part at procuring favorable government action is immune from liability, unless the conduct or speech constitutes a tort or a violation of a person's constitutional rights.

This is the core provision of the statute.  In the typical CAIR and CAIR-like baseless intimidation case this requirement will not be difficult to satisfy.  In my examples, the broadcaster did urge the FBI to search every mosque in America, the  blogger did demand the state department deny visas to Muslims, the newspaper editorial did insist that the Attorney General prosecute citizen Islamofascists for treason.  There were no ulterior motives—only speech “genuinely aimed...at procuring favorable government action.”  The same kind of speech used by the John Does in the “flying imam” case to have the airline, backed by government police power, to remove the troublemaking Muslims.  Clearly, in both my examples and in the “flying imams” case none of the John Does engaged in conduct or speech that constituted “a tort [civil wrong, like negligence] or a violation of a person’s constitutional rights.”

554.04. Fees and damages

Subd 1. Attorney fees and costs. The court shall award a moving party who prevails in a motion under this chapter reasonable attorney fees and costs associated with the bringing of the motion.

Depending on how far into the litigation the motion to dismiss is made (an important tactical consideration), and given the cost of legal fees today, the amount assessed against the unsuccessful plaintiff could be substantial.

Subd. 2. Damages.

(a) A moving party may petition the court for damages under this section in conjunction with a motion under this chapter.

This section makes clear that not only can the defendant’s lawyer(s) obtain attorney fees, but so can the defendant.

(b) If a motion under this chapter is granted and the moving party demonstrates that the respondent brought the cause of action in the underlying lawsuit for the purpose of harassment, to inhibit the moving party's public participation, to interfere with the moving party's exercise of protected constitutional rights, or otherwise wrongfully injure the moving party, the court shall award the moving party actual damages. The court may award the moving party punitive damages under section 549.20. A motion to amend the pleadings under section 549.191 is not required under this section, but the claim for punitive damages must meet all other requirements of section 549.191.

The first sentence of this subsection tracks the previous subsection.  However, this subsection adds the power of the court to award punitive damages—which could be substantial since their purpose is not to make the defendant whole (that’s what actual damages are for), but instead to punish the plaintiff and serve as a warning to others who also might be disposed to intimidate someone’s free speech rights.

554.045. Action in district court

A person may bring an action under this section in state district court against a respondent who has brought a claim in federal court that materially relates to public participation by the person. If the person demonstrates that the respondent's action in federal court was brought for the purpose of harassment, to inhibit the person's public participation, to interfere with the person's exercise of protected constitutional rights, or otherwise wrongfully injure the person, the court shall award the person actual damages and reasonable attorney fees and costs. The court may award the person punitive damages under section 549.20.

This subsection provides that a defendant who is sued in a federal court in a SLAPP case can bring a SLAPP case of his own in a Minnesota court against the person who brought the federal case.  Then, the federal court plaintiff becomes the state court defendant—who must somehow get around the “Anti-SLAPP” statute’s immunity provision.

554.05. Relationships to other law

Nothing in this chapter limits or precludes any rights the moving party or responding party may have under any other constitutional, statutory, case, or common law, or rule.

This section makes it expressly clear that nothing in Minnesota’s “Anti-SLAPP” statute should be understood not to preclude any other legal rights the SLAPP victim might have against the plaintiff.

And there are several such rights.

I’ll discuss them in forthcoming articles.

Footnotes:

[1] Arkansas, Delaware, Florida, Georgia, Guam, Hawaii, Indiana, Louisiana, Maine, Maryland, MassachusettsMinnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Washington.

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Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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