As I have noted here before, before filing a lawsuit, a SLAPP filer will frequently first send you a threat letter. This letter will state that if you do not stop exercising your First Amendment free speech and/or petition rights, you will be sued, possibly for hundreds of thousands or even millions of dollars. (Of course, the SLAPP threaten-er will not call the activity you have engaged in “free speech” or “petition,” and they certainly will not mention the First Amendment; they will call it libel, slander, defamation, intentional infliction of emotional distress, malicious prosecution, abuse of process, invasion of privacy, or whatever other legal theory his or her lawyer chooses to apply.)
So what do you do when you receive this type of letter? First, do not panic by giving in to the demands made in the letter before you know whether or not the threat is legitimate. In order to find this out, consult a lawyer who can determine whether the activity in which you engaged is something which you had a right to do, or something which may result in liability. One of the defining qualities of a SLAPP is the lawsuit’s lack of merit. If the threatened lawsuit is a SLAPP, there is no need to give in to the demands made in the threat letter — in fact, it may well be the filer of the lawsuit who ends up owing money for bringing the meritless claim.
For a good example of a SLAPP threat letter, TechDirt recently had a very insightful post on a letter sent by a lawyer for the Hollywood actor Chris Evans to the operators of the Lipstick Alley gossip forum. The letter was sent in response to unsourced rumors posted on Lipstick Alley by an anonymous user to the effect that Chris Evans had contracted a venereal disease. Chris Evans’ lawyer then sent off the overblown letter you can find embedded on TechDirt’s post.
The letter makes several assertions that plainly have no legal support. For example, Lipstick Alley is immune from liability under federal law for content posted by its users. The letter also appears to assert that any unauthorized reporting on Chris Evans or use of his image infringes on his right to publicity, which is plainly untrue under the First Amendment, which protects reporting on public figures. Lastly, Evans’ lawyer claims that Lipstick Alley may not in any way disclose the contents of the threat letter itself because it is a “confidential settlement communication.” This also has no legal basis.
Fortunately, Lipstick Alley knew that the proper response to the letter was to consult legal counsel, which in their case was Paul Levy of Public Citizen. Mr. Levy responded with the letter you can also see embedded in TechDirt’s post, which eviscerates the threat letter, effectively calling Evans’ lawyer on his bluff. Had Evans proceeded to file suit against Lipstick Alley on the basis of providing a forum for that type of rumor-posting, it almost certainly would have been a SLAPP. I think it is safe to say Evans’ lawyer will not be doing so.