Attorneys as State Actors: A State Action Model and Argument for Holding SLAPP-Plaintiffs' Attorneys Liable under 42 U.S.C. 1983

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.

Recommended Citation

James W. Harper, Attorneys as State Actors: A State Action Model and Argument for Holding SLAPP-Plaintiffs' Attorneys Liable under 42 U.S.C. 1983, 21 Hastings Const. L.Q. 405 (1994).
Available at: https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol21/iss2/5