In light of a hate crime case involving a student at the private Harvard-Westlake School, a professor argues that SLAPP suits can force those seeking redress to endure costly legal expenses hurting their chances for a just settlement. -DB

Gay and Lesbian Times
Commentary
September 3, 2009
By Robert Dekoven

The California Legislature needs to exempt hate crimes from SLAPP procedures.

SLAPP, or strategic lawsuit against public participation, motions are attempts to silence public protests or boycotts. While they are often deemed meritless, they nevertheless chill free speech because they are costly and time consuming. Usually, business entities use SLAPPs to intimidate those who threaten their economic advantage.

Now, in the case of D.C. v. Harvard-Westlake School, defendants have issued a SLAPP on the victim of a hate crime in order to intimidate all such victims from taking action against perpetrators.

As reported last week, D.C. v. Harvard-Westlake School, involves a former student, D.C., at an exclusive school.
D.C.’s peers threatened to kill him, necessitating that he and his family relocate to an undisclosed location. Not only did the school discover and reveal that location, but it forced D.C. and his family to arbitrate the matter, following which the family was issued $500,000 in costs.

An appeal court subsequently held that costs are not recoverable in arbitration when the underlying claims concern hate crimes; however, the family had incurred substantial costs, both in terms of moving and the emotional turmoil ensuing from the death threats. Consequently, the family is now pursuing claims in state civil court, to which the defendants have responded with a SLAPP.

According to D.C.’s attorney, Robert Gerstein, these defendants contend that the threats they leveled against D.C. are protected under the First Amendment. In other words, they say that free speech protections entitled them to threaten to “rip out” D.C.’s heart and “feed” it to him and to pound him “with an ice pick.”

Needless to say, this is absurd. The U.S. Supreme Court has consistently held that the First Amendment does not protect threats of harm: First Amendment rights protect the right to express an opinion, not to hurt people who don’t support or embody it.

Why then, given that such a SLAPP is so obviously doomed to failure, would the defendants attempt it?
Because it delays settlement. It forces D.C.’s family to spend money to defeat the motion at trial and to spend more money on appeal to defend the trial court for dismissing it. The process can take years and will cost D.C.’s family big bucks.

In this case, there are wealthy teens, parents and lots of insurance. But plaintiffs who are “slapped” rarely have money or insurance. So filing a SLAPP motion also sends a message to others who are victims of hate crimes: Don’t bother seeking damages for your injury. The bashers and their parents have hijacked a procedure designed to protect those who speak out against injustice and have turned it against them.

California has been at the forefront of drafting laws to protect hate crime victims, in both criminal and civil court.
This case involves true hate crimes. Threatening to harm someone because of real or perceived sexual orientation (D.C., by the way, is not gay) is a hate crime. How many Lawrence Kings do we need to illustrate this?

The Legislature needs to move now to specifically exempt hate crimes from the reach of the SLAPP procedures in California.

If this case is allowed to set a precedent, insurance carriers and their attorneys will continue to use them to stifle legitimate claims.

In the meantime, the Court of Appeal, which will probably hear this matter, should send a message that using the SLAPP procedure in this way is unacceptable and that, if the defendants nevertheless choose to do so, they will pay more than just fees, but sanctions, as well.

Robert DeKoven is a professor at California Western School of Law.

Copyright 2009 Uptown Publications