By SCOTT MILLER

For the Call

A Missouri appellate court will determine whether the term “trash terrorists” is protected speech or a potentially libelous phrase.

A three-judge panel of the Eastern District of the Missouri Court of Appeals heard oral arguments last week about whether a $5 million defamation lawsuit against Oakville resident Tom Diehl that some have labeled a SLAPP suit, or Strategic Litigation Against Public Participation, should be dismissed.

Fred Weber Inc. earlier this year filed the lawsuit against Diehl, who publicly has opposed the company’s efforts to construct a trash-transfer station in Oakville. Fred Weber filed suit Feb. 20 in St. Louis County Circuit Court against Diehl and is seeking $5 million in punitive damages and at least $25,000 in actual damages.

Diehl faces counts of slander, libel, civil conspiracy and business defamation for his alleged association with fliers that were distributed last December identifying Fred Web-er Inc. as “trash terrorists,” according to claims made by the company in the suit.

In July, St. Louis County Circuit Judge John Kintz denied Diehl’s motion to dismiss the case, but Judge Lawrence Mooney of the Eastern District of the Missouri Court of Appeals agreed to evaluate Kintz’s decision, putting the Circuit Court case on hold. One of Diehl’s attorneys, Mike Quinlan, pursued the appellate court order, called a writ of prohibition.

During the Dec. 13 oral arguments, appellate judges asked questions of Quinlan and Jeffrey Hunt, an attorney representing Kintz.

At issue now is whether “trash terrorists” is a false statement of fact or an opinion. A false statement of fact — not an opinion — would be deemed libelous, defamatory or slanderous, according to state and federal law. Weber attorneys now have the burden of proving Diehl’s fliers contained a factual lie.

“What does the term trash terrorist mean in terms of making it factual?” Mooney asked. “Looking at it in context, can we find this to be a statement of fact?”

Hunt contended that Diehl’s statements are factual be-cause he is claiming intimidation, calling Weber representatives “bullies.” While an attorney for Kintz, Hunt was the only lawyer to speak on behalf of Fred Weber.

“When you’re talking about opinion, you’re talking about factual inquiry,” he said.

Hunt also tried to tie the term “trash terrorist” to the Sept. 11, 2001, terrorist attacks saying using the term “terrorist” implies that Weber is trying to kill or injure Ameri-cans, which it isn’t.

Allowing Diehl to make those statements against Weber, Hunt added, gives him “blanket immunity” to defame.

“The courts have stated,” Hunt said, “there is no wholesale defamation exemption. There is no license to defame.”

But Mooney questioned the distinction between “immunity” and a constitutional “privilege.”

Judge Clifford Ahrens added, “What disturbs me is how a reasonable person looking at ‘trash terrorists’ could take that as an evil meaning.”

On the other side of the aisle, Quinlan argued Diehl was exercising his constitutional right of free speech and political participation.

He said allowing such cases, regardless of the outcome, will permit other “big businesses” to silence public criticism. He alleges the suit is a form of intimidation against citizens who can’t afford to defend against such cases so they don’t participate in public hearings.

“Allowing this case to go forward will chill free political expression,” Quinlan told the panel. “This is a SLAPP suit. The ($5 million) size of it illustrates that this is intended as an intimidation tactic against Fred Weber opponents.”

Also, calling Weber a “trash terrorist” has no real meaning, he added. But Ahrens cited “cyber terrorists” as a term that once had no meaning but now does, expressing concern that “trash terrorist” could become a definable statement of fact.

“We know what a cyber terrorist is,” Quinlan responded. “A cyber terrorists is someone who hacks onto computers and spreads viruses. There are laws against cyber terrorism. Trash terrorist has no meaning. It’s name calling is all it is.

“It is an absolute privileged statement of opinion,” he added. “You can see that the flier is a political document. It is political advocacy. This is a clear case of political speech, opinion and government petition.”

After the hearing, Diehl told the Call he worries how long the suit will drag on. The financial burden is mounting, he said. He also said the suit has crushed his public participation in government because anything he says could be self-incriminating in the case.

The County Council has conducted public hearings on Weber’s south quarry asphalt pile since Diehl was sued last winter. Diehl didn’t say a word.

“Well, I can go, but I can’t talk,” he said. “That’s the in-timidation.”

Several other Oakville residents also may feel intimidated by Weber’s lawsuit as the Great Rivers Environmental Law Center filed a third-party opinion with the appellate court, claiming other Oakville residents have contacted the center fearing they too would be sued.

“From the time Fred Weber, Inc. filed the underlying suit, many of the homeowners receiving legal assistance from Great Rivers expressed concern about becoming a target of this, or some other FWI (Fred Weber Inc.) suit,” according to the opinion. “It appears that the rights of these homeowners to freely express their opinions about the proposed solid waste transfer stations are being hampered by what appears to be a baseless SLAPP suit.”

The American Civil Liberties Union also filed a legal brief as a friend of the court in favor of dismissing the case.

“We believe this case represents a growing and disturbing trend across this country of SLAPP suits, Strategic Litigation Against Public Participation, aimed at chilling free speech,” said Denise Lieberman, legal director for the ACLU of Eastern Missouri.

“The companies that file these suits don’t even intend to win the suit,” Lieberman told the Call. “The intend to drag out the litigation.”

The Missouri Legislature adopted a SLAPP suit protection law last spring and is considering strengthening it.

However, Hunt argues that law does not apply in this case because the suit was filed before the law was adopted.

“The SLAPP law doesn’t apply retrospectively,” he said.