• July 4, 2010

Here are some typical scenarios in which state “Anti-SLAPP” statutes come into play:  (1) subject of newspaper exposé of fraud sues paper for defamation, newspaper story is accurate and the fraudster’s lawsuit against the newspaper is frivolous – the statute provides a means for the newspaper to dispose of the case quickly and get its attorneys’ fees awarded; (2) government subdivision (or real estate developer) sues neighborhood activist group for defamation or tortious interference in order to silence the group’s opposition to a proposed development – again, the anti-SLAPP statute provides a means for the neighborhood group to exercise its rights undeterred.

In short, the statutes seek to protect citizens’  exercise of their First Amendment rights by preventing others from using the courts to destroy or deter the exercise of those rights (here is Minnesota’s Anti-SLAPP statute).  Middle-Snake-Tamarac Rivers Watershed District v. Stengrim roughly falls under the second model, but with a twist that made all the difference, the Minnesota Supreme Court held. 

Stengrim and others challenged a flood management project of the Watershed District in the Red River Valley.  There was “extensive litigation,” followed by a mediated settlement in which those who had challenged the Watershed District’s actions promised they would “address no further challenges in litigation or otherwise against the establishment of the Project, which [the challengers] now understand will be going forward.”

Then, from the Watershed’s point of view, Stengrim reneg’d on the settlement essentially by continuing to be the citizen-activist/gadfly and the Watershed brought a claim for breach of the settlement agreement.  In response, Stengrim brought an anti-SLAPP counterclaim and a motion to dismiss the Watershed’s suit.

Because this case involves a claim for breach of contract (that is, breach of the settlement agreement) rather than the more typical underlying suit for defamation or tortious interference (that is, a tort claim), “The situation here is peculiar,” Justice G. Barry Anderson wrote for the Court.

Preexisting legal relationships, such as those based on a settlement agreement where a party waives certain rights, may legitimately limit a party’s public participation. It would be illogical to read Minn. Stat. §§ 554.01-.05 as providing presumptive immunity to actions that a moving party may have contractually agreed to forgo or limit.

In short, the Minnesota Supreme Court recognizes that one can essentially sell (or, in a sense, “waive”) one’s rights under the First Amendment rights.  After all, one can waive (or, in a sense, “trade” or “sell”) one’s rights to a warrant as a prerequisite for a search (Fourth Amendment), one’s rights to due process or the right to remain silent (a Fifth Amendment right), one’s right to a speedy trial (or one’s right to a trial at all) or one’s right to a lawyer when a defendant in a criminal case (Sixth Amendment), or one’s right to a jury (Seventh Amendment).   So why can one not barter away the right to be a gad-fly? One can.

Having done so,

In a situation such as the one present here, a district court has the authority to deny a defendant’s anti-SLAPP motion where a defendant has entered into a settlement agreement and contractually agreed not to hinder the establishment of a project, thereby waiving certain rights to public participation, but retaining others, and the court determines that there are genuine issues of material fact about the settlement agreement’s effect on the defendant’s public participation rights.

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