SLAPPed by RICO: Corporations Punishing Social Activism

Abstract

Since mid‐twentieth century, courts and state legislatures have recognized that legitimate petitioning and free speech activities should not be subject to civil litigation. Laws meant to regulate or proscribe one form of activity should not be abused to curb First Amendment activities. Over the past thirty years a number of states have enacted legislation to protect individuals and organizations active in social and environmental causes, as well as local development issues, from groundless lawsuits, known as Strategic Lawsuits Against Public Participation (SLAPPs), brought to silence them. But these anti‐SLAPP statutes are of little use to an organization that must spend years in litigation fighting accusations that its protected activities constitute criminal predicate acts under the Racketeer Influenced and Corrupt Organizations Act (RICO). This article advocates a federal statute that can protect individuals and organizations that speak out from meritless lawsuits grounded in federal law—particularly RICO. As discussed in this article, there are procedural and constitutional challenges to such a law. However, those obstacles can and must be overcome to prevent a law aimed at criminal racketeering from being used to stifle First Amendment rights.