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By Peter Hayes
If you drive west for half an hour from Selma, Alabama, you come to Uniontown, a predominantly African American community of 2,000 people.
When the county began to consider allowing construction of a landfill in Uniontown, a group of residents organized to fight it—a battle they lost.
But the war wasn’t over when the Arrowhead Landfill began operating in 2007 and further escalated after coal ash from a Tennessee spill was sent to the site two years later.
On its Facebook page, the residents’ group alleged that toxic material from coal ash at the landfill was “leaking into creeks and contaminating the environment,” and that the operators, Green Group Holdings and Howling Coyote, “may have committed illegal trespass and desecration of an adjacent black cemetery.”
After failing to obtain a retraction of several comments, the landfill operators filed a $30 million suit against four members of the organization for libel and slander.
The residents asked the court to dismiss the case, arguing it was “a classic example of what has become known as a `strategic lawsuit against public participation,’ or SLAPP suit,” designed to silence free speech through intimidation.
It’s a charge the operators still dispute after settling the case in February.
“It would be unfair to call this a SLAPP suit,” Michael D. Smith, the attorney for the landfill, told Bloomberg BNA.
“We recognize the right to free speech. We didn’t seek to stop speech within the protected area,” Smith, of Smith & Staggs LLP in Tuscaloosa, Alabama, said.
The residents, he said, “were saying things they knew weren’t true,” including allegations the landfill released toxins into streams.
Whether the case filed by Green Group and Howling Coyote was a SLAPP suit or not, some environmental organizations say unmeritorious defamation and other legal actions, which are increasingly expensive to defend, are on the rise.
David S. Ardia, a professor at the University of North Carolina Law School in Chapel Hill, said he couldn’t confirm an increase in SLAPP suits, which have been around since the 1970s.
But he did say that, “what’s filed is just the tip of the iceberg.”
Ardia, whose research includes First Amendment issues, is co-director of his law school’s Center for Media Law and Policy.
“There are many more incidences of individuals and organizations self-censoring because of a fear of being sued,” he said. “So the op-ed is never written or the report is never circulated.”
But the threat of chilled speech posed by litigation can go far beyond environmentalists. It can extend, for example, to members of the press, as well as others such as consumers seeking to share information about products and experiences, and workers airing grievances about their employers.
To address these concerns, courts are facing new legal questions about how to handle defamation and other suits filed by businesses, and more states are taking action.
Additional anti-SLAPP laws, for instance, are being enacted at the state level to try and help those who are sued after speaking out about matters of public concern.
And while these measures differ in strength, many allow environmental and other defendants in defamation suits to file special motions to put the cases filed against them on hold and to seek early, expedited dismissal of the suits.
Some laws even allow the recover of attorneys’ fees if it’s shown the suits were directed at stopping protected speech.
“Anti-SLAPP motions are meant to accelerate the court’s evaluation of the merits of the claim and eliminate much of the defense costs,” Ardia said.
The usual target of the motions have been the “common filers” of defamation suits aimed at silencing public speech which, he said, include “organizations upset with speakers on environmental issues, including real estate developers, industrial companies and chemical manufacturers.”
In the Uniontown case, the residents filed a motion to dismiss, arguing that the statements were constitutionally protected—Alabama doesn’t have an anti-SLAPP law.
An attorney for the plaintiffs, Lee Rowland, told Bloomberg BNA that the issue was not whether the statements were true.
“To protect robust conversation, you don’t lose your constitutional protections just because you say something that might not be accurate,” Rowland, who works for the American Civil Liberties Union, said.
“But the constitution doesn’t protect knowingly malicious false statements,” she said.
The court granted the residents’ motion, finding most of the statements “protected by the First Amendment as statements of opinion and/or rhetorical hyperbole concerning a matter of public interest.”
But the court gave Green Group and Howling Coyote the opportunity to re-file those claims that were “sufficiently factual to be susceptible of being proved true or false.”
In February 2016, the parties reached a settlement, calling for publication of a joint statement that “in the future, matters of concern to the community can be resolved through dialogue rather than lawsuits.”
The suit was never about money, the landfill operators’ attorney told Bloomberg BNA.
“We felt the statements that were factual in nature would be injurious to the business,” Smith said, “including statements that arsenic and toxins were being released into streams.”
In the end, he said, what drove the settlement was new leadership at the landfill who wanted to resolve the companies’ differences with the residents through discussion.
Most states have now enacted anti-SLAPP laws aimed at protecting those whose free speech rights are targeted by litigation, according to an anti-SLAPP advocacy organization, the Public Participation Project in New York.
Most recently, Virginia Gov. Terry McAuliffe (D) signed into law a bill in March strengthening that state’s protections.
And New Jersey is also considering such a law, Ardia of UNC told Bloomberg BNA.
As in years past, congressional legislation also is expected to be introduced, and it will likely include a measure similar to the Speak Free Act of 2015 ( HR 2304).
The bill would, according to its supporters, amend the federal judicial code to protect individuals from meritless lawsuits aimed at those who make statements “made in connection with an official proceeding or about a matter of public concern.”
That measure, last introduced by Rep. Blake Farenthold (R-Texas), was endorsed by a wide variety of supporters that included consumer review site Yelp Inc., the conservative Competitive Enterprise Institute think tank, Greenpeace USA, and the Reporters Committee for Freedom of the Press.
Laurent Crenshaw, Yelp’s director of public policy, told Bloomberg BNA that his company supported the federal bill because, “we care about ensuring that our users have the ability to freely share reviews online without fear of intimidation.”
But several critics, including the environmental group Earthjustice and the Center for Justice & Democracy, a consumer rights organization, have opposed federal anti-SLAPP legislation.
The groups, in a letter to the House Judiciary Committee, said the bill’s definition of protected speech was so broad that it could end up actually undercutting worker and other civil rights lawsuits.
If the bill became law, for example, employers might be allowed to file their own anti-SLAPP motions when suits by employees involve employer statements to federal agencies about discrimination and workplace issues.
Overly broad or not, Ardia said he wouldn’t put too much stock in the federal legislation.
“Most of these suits are at the state level, so it really is a state law issue,” Ardia said.
And, at that level, in addition to the recent legislative activity in Virginia and New Jersey, some state top and other courts have recently played a significant role in broadening anti-SLAPP safeguards.
One example of this can be seen in Massachusetts. There, in February, the state supreme court upheld the dismissal of a defamation suit against Cherri Foytlin and Karen Savage, two environmental activists.
Foytlin and Savage wrote a blog piece on Huffington Post that was critical of Cardno ChemRisk—a contractor involved in the cleanup of the massive Deepwater Horizon oil spill in the Gulf of Mexico.
The bloggers alleged that ChemRisk had a history of fraud and defending big polluters.
After the authors declined ChemRisk’s demand for a retraction, the company filed a defamation suit in New York state court.
In response, Foytlin and Savage sought to dismiss the case under the state’s anti-SLAPP statute. They argued the claims were based solely on their exercise of the right to petition, that they had a reasonable factual basis for their statements, and that they caused no injury.
The trial court determined that because the bloggers were not seeking to redress a grievance of their own, they were not engaged in protected petitioning activity.
But the Massachusetts high court disagreed. It found that “the United States Constitution protects the right to petition to redress grievances whether those grievances be private or public in nature.”
That right of petition isn’t limited to seeking redress of purely personal grievances, but includes “non-self-interested petitioning on behalf of the environment,” the court said.
The attorney for the bloggers, John Reichman with Wachtel Missry LLP in New York, said the case “will go a long way in terms of giving protection” to others who speak out about important public issues.
The high court found that a person is protected, even if he is a journalist, if he is engaged in advocacy, he said.
Counsel for ChemRisk didn’t respond to request for comment.
The Massachusetts ruling, as well as the new legislation in Virginia and New Jersey, are encouraging to advocates of anti-SLAPP protections.
But other recent developments, which include what they say are attempted end-runs around laws already on the books, give them pause.
They point, for example, to new litigation filed against Greenpeace.
In addition to defamation claims filed in Canada, Greenpeace USA is now facing claims filed under the Racketeer Influenced and Corrupt Organizations Act in federal court in Georgia.
Both suits were filed by logging company Resolute Forest Products Inc., and related entities, stemming from Greenpeace’s “Resolute: Forest Destroyer” campaign which challenges the company’s forestry practices in Canada’s Boreal forest.
Greenpeace said that Resolute was “responsible for the destruction of vast areas of Canada’s magnificent Boreal forest, damaging critical woodland caribou habitat and logging without the consent of impacted First Nations.”
In the RICO suit, Resolute alleges that Greenpeace is part of a criminal enterprise engaged in the “dissemination of disinformation, extortion and other tortious and illegal conduct” as part of a “lucrative high-profile fund-raising campaign.”
Greenpeace has responded with a motion filed under Georgia’s 2016 amended anti-SLAPP law, which allows for the recovery of attorney fees if it wins.
The motion argues that the court “must pierce the labels that RFP has placed on its causes of action and find that the gravaman of all of RFP’s claims is to squelch protected speech.”
Greenpeace said the allegations “are defamation claims masquerading as other causes of action.”
Resolute has responded that “a racketeering enterprise and conspiracy, as well as claims of fraud and other illegal conduct, are not protected by the First Amendment.”
“They are wrong on numerous grounds, which we have set forth in detail in our papers, but perhaps most obvious is that state SLAPP statues do not apply to federal RICO claims,” Michael J. Bowe, the lead attorney for Resolute, told Bloomberg BNA.
Bowe is with Kasowitz Benson Torres LLP in New York.
Rodrigo Estrada, a spokesman with Greenpeace in Washington, says he is concerned that the recent claims filed against his group are more than just an attempt to circumvent anti-SLAPP laws.
They also represent part of a rising trend of more litigation generally aimed at silencing environmentalists’ and others’ advocacy efforts, he said.
“We’ve seen an increase in this type of suit,” he said, referring to SLAPP litigation. “More and more corporations are filing them,” Estrada said.
“It’s expensive for the corporations, but it’s also expensive and time consuming for us,” he said.
Court fights also, Estrada said, distract the organizations from their core missions.
“It’s difficult to fight this suit and continue the campaign to protect the forests, and it’s more difficult for smaller organizations,” Estrada said.
North Carolina’s Ardia couldn’t confirm that the number of defamation and other suits filed against environmental groups and other business critics are going up.
“I’m not aware of any studies that tracked this over time,” he said.
But the costs to environmentalists and others of defending suits filed against them when they speak out against business practices they oppose increase every year, he said.
“A very expensive judicial system imposes significant costs on defendants” even when their actions are “meritorious,” he said.
“For a speaker vindicated in the end, that won’t pay the bills,” Ardia said.
As for the ongoing racketeering suit against Greenpeace, the court, citing “the substantial risk that much time and money could be wasted,” has issued a stay of discovery in the case until it rules on motions from both sides.
To contact the reporter on this story: Peter Hayes in Washington at PHayes@bna.com
To contact the editor responsible for this story: Steven Patrick at firstname.lastname@example.org
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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