By SCOTT MILLER

Staff Reporter

Oakville resident Tom Diehl briefly celebrated last week after a state appellate court dropped a $5 million libel, defamation, slander and business conspiracy lawsuit filed against him by Fred Weber Inc.

The threat of an appeal still looms though, and the detrimental effects of the suit still are nagging.

Diehl’s legal fees have mounted and may continue to pile if Fred Weber appeals the decision to the Missouri Supreme Court. Amid opposition to its proposed trash-transfer station in Oakville, Fred Weber sued Diehl in February 2004 for his association with fliers calling the company “trash terrorists.”

The lawsuit has been labeled Strategic Litigation Against Public Participation, or a SLAPP suit, aimed at stifling Diehl’s public opposition. South county residents have donated cash to Diehl’s defense fund, but the injuries outside of the courtroom may be worse.

“The bigger burden financially is on my fund-raiser consulting business, which has been practically ruined,” Diehl told the Call. “That I’m going to have to rebuild from where I was before this all started.”

Weber attorneys wouldn’t say if they would appeal, telling the Call they needed more time to review the court opinion. Attorney Gary Feder of Husch & Eppenberger declined to comment. Weber has until March 22 to appeal.

So while Diehl waits to see if the fight is over, he can chalk up one victory, particularly for private citizens.

“What a weight off my chest,” he said. “I definitely see it as a win, especially for the people of south county because I had seen the change in south county when people didn’t want to attend meetings. They didn’t want to speak at hearings.

“That’s the most dangerous threat to our First Amend-ment free-speech rights,” Diehl added. “It’s not just politicians and special interest groups that set the public policy debate. The citizens of south county should realize that we have to stand together.”

Attorney Mike Quinlan echoed those comments at a press conference last week.

“We see this Court of Appeals’ opinion as a victory for ordinary citizens to participate in public debate without the fear of being intimidated or sued for frivolous cases, really, to try to stifle their participation and their opposition,” he said.

Quinlan filed for the appellate court order, called a writ of prohibition, which prevents County Circuit Judge John Kintz from preceding with Weber’s lawsuit even though he previously denied Diehl’s motion for dismissal.

Weber was seeking $5 million in punitive damages and at least $25,000 in actual damages caused by the fliers.

Company attorneys contended the reference to “terrorists” implied Weber officials murdered innocent people, a blatant lie and blow to the company’s reputation.

So they sued for libel, defamation, slander and business conspiracy, a lawsuit Kintz gave merit. But a three-judge panel of the Eastern District of the Missouri Court of Appeals declared last week that the phrase had no defamatory or libelous meaning. Rather, the phrase is a statement of opinion, not a false statement of fact.

“The phrase ‘trash terrorists’ is properly characterized as imaginative expression or rhetorical hyperbole … Neither imaginative expression nor rhetorical hyperbole can support a claim for defamation,” the judgment stated. “Exactly what constitutes a ‘trash terrorist’ is unclear. Indeed, given the imprecise nature of the phrase, it is uncertain how the truth or falsity of being a ‘trash terrorist’ could be determined. The imprecise nature of the phrase ‘trash terrorists’ not withstanding, the phrase is not defamatory as a matter of law under the applicable standards.

“The company focuses on the on the word ‘terrorist.’ But the term ‘terrorist’ cannot be considered in isolation,” the judgment continued. “As previously stated, the allegedly defamatory words must be taken in context. Certainly, if the flyer was factually claiming that the company kills and injures people, it would not urge the reader to merely write to the head of the St. Louis County Department of Planning. It is clear that the flyer is recommending action to oppose the proposed trash-transfer station. Taken in context, the use of the phrase ‘trash terrorists’ reflects the writer’s staunch opposition to the proposed trash-transfer station.

“Again, taken in context and considering the surrounding circumstances, a reader of the flyer would not believe that the company is a terrorist. Rather, the reader would recognize the language as an epithet used to voice opposition to the proposed trash-transfer station,” the judgment stated.

“They called Weber’s case meritless, which is legal (jargon) for a pile of refuse,” attorney Jerry Wamser told the Call. “It was a pretty good trashing of the suit.”

Wamser spearheaded the John Doe Society’s effort to generate a legal defense fund for Diehl’s attorney fees.

During the appellate hearing, Weber attorneys claimed dismissing the case would give blanket immunity to defame companies seeking government action. Companies such as Weber, they said, would have no means to protect their names and reputations.

“We disagree with the company’s claim that issuing a writ of prohibition will open the floodgates in defamation cases …,” the opinion stated. “The free exchange of ideas between citizens and government is a hallmark of democracy.”

When he heard the news, Diehl celebrated over a fine meal with his wife, Barbi, who “started to cry because there’s been so much anxiety and stress bottled up for so long,” he said.

“If I were allowed to hug (the judges), I would because I think they saved our lives,” Barbi Diehl said at a press conference last week. “If I could only say one thing to executives at Fred Weber and their army of attorneys, it would be to ask: Will you adhere to the ruling, the decision of the appeals court and let us try to rebuild our lives or will you toss that wisdom aside and just pound at us? Please think about it long and hard.”

Weber attorneys haven’t answered that question yet. While they may press forward, they also may walk away without penalty, leaving the Diehls with large legal fees and a struggling business.

“I don’t like being sued but I would do it again because we were all fighting to protect our homes and our neighborhoods,” Tom Diehl said at the press conference. “You know, we’re just ordinary people. We work. We pay our taxes. We feel we’re entitled to equal protection from our government and we were standing up for our rights. Yes, I would do it again.”

Weber, on the other hand, earns tax credits on legal fee expenses. But that could change under legislation pending in the Missouri Senate.

Senate Bill 232 would establish punitive damages against plaintiffs who file lawsuits that the courts rule as attempts to chill public participation or free speech.

The proposal expands a law enacted last year that set up expedited legal hearings to dismiss SLAPP suits against statements made at public hearings or meetings.

If approved, plaintiffs possibly could pay SLAPP defendants triple damages, depending on the court’s ruling. Businesses filing such suits also would lose tax credits on legal fee expenses, and plaintiffs could not dismiss their case once the defendant challenges it as a SLAPP suit.

Also, any comment made during a public hearing or meeting would be immune from civil liability when made to persuade government action, according to the legislation. To protect defendants struggling with legal costs, the state attorney general could intervene and assume the defense costs of any case he or she believes is a SLAPP suit.

The legislation would not apply retroactively to benefit Diehl, but is essential to curbing the growing number of SLAPP suits in Missouri, said Denise Lieberman of the American Civil Liberties Union.

“Citizens have a right to use their First Amendment right of free speech without the judicial system being used as a tool against them,” she told the Call. “The court recognized that citizens enjoy this right. I hope this sends a message.”