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Hastings Constitutional Law Quarterly

Authors

James W. Harper

Abstract

Strategic Litigation Against Public Participation ("SLAPP") is a recently identified genre of intimidation suit that menaces citizen activism on matters of public concern. The problem with SLAPPs is that their success is not contingent on victory in court; they begin achieving their purpose the moment suit is filed. This Note reviews SLAPPs and defenses and deterrents to SLAPPs. It proposes an additional deterrent to SLAPPs: applying 42 U.S.C. § 1983 to SLAPP-plaintiffs' attorneys. Because section 1983 requires deprivation of civil rights "under color of law," this Note explores whether and when attorneys are state actors and proposes a model to harmonize the United States Supreme Court's cases on that subject. Under certain circumstances, attorneys are state actors who can be liable under section 1983.

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