Strategic Lawsuits against Public Participation (SLAPPs), the Governance of Historical Memory in the Rule of Law Crisis, and the EU Anti-SLAPP Directive

Introduction:

Under populist rule, strategic lawsuits against public participation, known as SLAPPs, become a crafty way of suppressing free speech and silencing the government’s critics. The article distinguishes between ‘classic’ SLAPPs filed by powerful private individuals or entities and government-sponsored SLAPPs, which can also take the form of government SLAPPs by proxy, for example when filed by government-friendly individuals or organisations.

Public criticism of state authorities, their policies, institutions, ideologies and representatives takes on a different dimension under a populist government that disrespects the rule of law. It is no longer perceived as a legitimate and vital element of public debate, but rather a dangerous attack on the ruling elites and their political agenda. However, when the ‘pandemic of populists’ hints of nationalism, a specific, unilateral and only heroic-oriented vision of the national past becomes the official, state-imposed narrative. Various measures are being applied to secure it, including legal instruments limiting freedom of expression, targeted at anyone involved in public conversations about the complicated past.

This article demonstrates that a particular subcategory of SLAPPs related to the state’s official historical policy is used to further strengthen historical narratives preferred by the government. Moreover, it contributes to a chilling effect on the public debate about the past, including by harassment of those who reveal and discuss the dark sides of the nation’s history. This phenomenon is analysed using the case study of Poland during the rule of law backsliding, specifically focusing on the civil lawsuit against Holocaust scholars Barbara Engelking and Jan Grabowski. Subsequently, the article contextualises this case of harassment of academics within the framework of the European standard for safeguarding academic freedom.

Furthermore, the article examines the EU legal responses to the threat posed by SLAPPs, critically assessing the Recommendation and the Draft Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings. It argues that protection of scholars in Europe, including those who are engaged in research on topics deemed sensitive or controversial by national governments in member states, should be expanded by means of the anti-SLAPP Directive.

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