Lawsuits such as the one Fred Weber Inc. has filed against an Oakville man not only deter people from exercising their First Amendment right of freedom of speech, but “also create a chilling effect on society.”
That’s what a representative of the American Civil Liberties Union told a bipartisan panel of Missouri legislators who convened last week to hear testimony about whether provisions in recently approved legislation protecting Missouri residents from Strategic Lawsuits Against Public Participation, or SLAPP suits, should be expanded.
Denise Lieberman, legal director of the ACLU of Eastern Missouri, told the panel that the $5 million lawsuit Fred Weber Inc. filed against Oakville resident Tom Diehl is “a classic SLAPP suit.”
But two attorneys representing Fred Weber Inc. — Tom Wehrle of Gallop, Johnson & Neuman and Gary Feder of Husch & Eppenberger — told the legislators that the lawsuit against Diehl is not a SLAPP suit, but rather a legitimate defamation and libel lawsuit.
The panel — Sen. John Loudon, R-Ballwin; Sen. Michael Gibbons, R-Kirkwood; Sen. Harry Kennedy, D-St. Louis; Rep. Jim Lembke, R-Lemay; Rep. Walt Bivins, R-Oakville; and Rep. Sue Schoemehl, D-Oakville — was convened at the request of County Councilman John Campisi, R-south county.
Loudon was the sponsor of Senate Bill 807, which was approved by the Legislature and signed by Gov. Bob Holden. The measure, which takes effect Aug. 28, provides for an expedited legal hearing to dismiss SLAPP lawsuits for statements made at public meetings and public hearings and also allows citizens earning suit dismissals to recoup attorney fees and court costs incurred in having to defend against frivolous SLAPP suits.
Diehl publicly has opposed Fred Weber’s efforts to construct a trash-transfer station in Oakville for more than a year. 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 Weber Inc. as “trash terrorists,” according to claims made by the company in the suit.
In March, Fred Weber also filed a motion seeking to disqualify Campisi from participating in a hearing regarding its proposed transfer station, alleging that the 6th District councilman would bring an unfair bias to proceedings involving Fred Weber. The company was unsuccessful in its efforts to disqualify the councilman from participating in the hearing.
During the July 29 hearing, Lieberman said, “The ACLU has taken a significant interest in so-called SLAPP suits and we commend Sen. Loudon for introducing this legislation … that would protect people from such suits. This legislation is critical to protecting the rights of citizens to speak out and participate in the political process. I’ve been asked to provide an overview of this issue here tonight. SLAPP lawsuits are a growing trend in litigation aimed to silence critics by forcing them to defend themselves in court. Disguised as common tort claims varying from business court torts to defamation and libel suits more commonly, these suits use the judicial process as a tool of intimidation and retaliation. The plaintiff in such cases files suits to retaliate against individuals who have criticized them or petitioned the government against them and to intimidate others from exercising their First Amendment rights to do so. The message sent by these suits is that if you participate in the political process, be prepared to litigate.
“These suits not only deter the defendants in the particular suit from exercising their free-speech rights, but also create a chilling effect on society. When people see others who’ve been outspoken on an issue being the target of lawsuits, it intimidates them from speaking too. One court in New York went so far as to say of SLAPPs: ‘Short of a gun to the head, no greater threat to the First Amendment freedom of expression can scarcely be imagined.”’
Regarding Fred Weber’s lawsuit against Diehl, Lieber-man said, “The ACLU believes that this is a classic SLAPP suit. Even though the free-speech activities did not take place during a formal public hearing, they did take place in the political arena and no one can doubt they that were part, that these citizens were part of the public discourse and political debate taking place around the issue of the transfer station. This is activity that falls squarely within the protection of the First Amendment …”
But Wehrle said that the Fred Weber litigation against Diehl was not a SLAPP suit and that nothing in the lawsuit would prohibit any resident from opposing the company’s trash-transfer station at a public hearing.
“What this lawsuit says (is): ‘Wait a minute. You stepped over the line, Mr. Diehl. You stepped over the line when you have — at least we have been informed that he has contributed to or has something to do with the flier that was circulated after a public — during and after a public hearing here,” he said. “It starts out: ‘Stop Fred Weber Inc. Three things you can do to fight the trash terrorists.’ Now, just a minute ago someone from the panel asked me a question about terrorists. I said, ‘Well, terrorists to me means you maim, you murder.’ He said, ‘It didn’t mean that to me.’ I said, ‘Well, who was it that flew airplanes into the twin towers?’ He said, ‘They were terrorists, yes.’ I said, ‘Did they murder people?’ ‘Yes.’ ‘Then what does this mean then, trash terrorists?’
“That is what this lawsuit is about. We have not said that he cannot or anybody down here cannot stand up and oppose Fred Weber’s landfills or zoning … They can say whatever they want to …,” Wehrle continued, saying he could remember a law professor who said, “Wait a minute, you can’t cross the line. You cannot stand up in a crowded theater and yell: ‘Fire, fire, fire.’ You can’t. Mr. Diehl did this. If he has contributed to this, he did. The crowded theater was the people gathered down here on another matter and the word ‘fire, fire, fire’ is the word ‘trash terrorists.’ So what does that mean to those people? It means the same thing that we think when we think of 9/11,” he said as the crowd jeered.
In their contention that the Weber litigation was not a SLAPP suit, both Wehrle and Feder noted that Circuit Judge John Kintz had denied Diehl’s motion to dismiss the lawsuit. But the day after the legislative hearing, Judge Lawrence Mooney of the Eastern District of the Missouri Court of Appeals, agreed to evaluate Kintz’s decision at the request of one of Diehl’s attorneys, Mike Quinlan. Quinlan pursued the appellate court order, known as a preliminary writ of prohibition. Mooney’s action has stalled all court actions and proceedings regarding the lawsuit until mid-October during the judge’s review of the matter.
On July 29, Feder said, “… There are legitimate libel suits and there are SLAPP suits. The question is: Which is it? Well the judge (Kintz) looked at this, has already told you what it is, he has made a determination by denying the motion to dismiss that this is a legitimate lawsuit. He’s not concluded yet whether it’s a lawsuit that after all the evidence is in is appropriate and whether damages should be awarded, but he has made the threshold decision that this is not a SLAPP suit and because he made that decision, that’s why we are here tonight because we think it is incorrect and wrong for you all to be told this is a model SLAPP suit when the only judge who has looked at this question has already made the determination that it’s not.
“So it’s not me, it’s not Mr. Wehrle, it’s not Fred Weber, it’s Judge John Kintz who 30 days ago dealt with this very question and said this is not a SLAPP suit. So therefore it’s fine with us whatever discussion you have about SLAPP suits, whatever additional legislation you may wish to discuss, but don’t use Weber as a model of a SLAPP suit when a judge has already said that’s not what it is …,” he said.
Campisi said, “… This particular SLAPP suit by Fred Weber Inc. involved a whole new tactic. Weber tried to block me from speaking or voting in matters concerning them on the grounds I was biased in favor of my constituents. Weber’s efforts against me arose after I spoke to the media. I denounced their SLAPP suit … as an attack on free-speech rights not only of Tom Diehl, but also of every citizen opposed to their pending applications. They were seeking to punish me for speaking out against their shabby assault on free speech. Weber has charged me with being biased in favor of my constituents. This charge is peculiar because my function as an elected representative, like you, is to represent the people who elected me. I might also say my criticism of the Weber SLAPP suit also reflects my bias in favor of the First Amendment of the U.S. Constitution.
“This present Weber case is therefore a dangerous new tactic on the part of the bully seeking to silence political opponents. They seek to break the citizens’ opposition by a lawsuit and also to handcuff and gag their elected representatives as well. The County Council in this case did not approve Weber’s effort to bar me from voting and speaking. However, that does not mean that a future effort by another bully or a different body might not result in such a gag order. This Weber SLAPP suit and their action against me are a direct attack against both free speech and representative government. We must stop this attack cold in this case and in all future cases along with expanding the anti-SLAPP suit laws to cover the case of citizens’ political statements like the one of this issue. I urge you as legislators to consider extending the SLAPP ban to protect the elected representatives of the people as well.”
Barbara Diehl, Tom Diehl’s wife, said, “… This first started early this year when the bully’s attorneys stuck a letter in our door one night, giving Tom five days to comply with their demands or they said they’d sue us. Because it was a three-day holiday weekend, they knew they were really only giving us one day — impossible. But we did have someone call their attorney before the deadline to ask for more time. And do you know what their attorney said? He said it didn’t matter what Tom did or did not do, he had instructions to sue Tom no matter what.
“So even if we could have given them everything they demanded in the letter, it wasn’t what they wanted. So what did they really want? To shut Tom up, who they saw as the leader of the community’s efforts to fight their proposal and to shut up all of the county for this and all future proposals of a similar nature. They sued Tom for $5 million, another classic sign of a SLAPP suit. Unbelievably huge amount — $5 million may be like a grain of sand on the beach to this company, but it’s more than we’ll earn in our entire lifetime, either of us, both of us. The amount of a SLAPP suit is meant to scare people from participating in a public issue.
“When Tom was sued, that’s when the reality and the fear hit me. I know they want to take my home, the home I love so much and force us to move away from my neighborhood and the fight. They want to take away my young son’s chance to go to college. They want to break us in every way they can. The hatred is evident in everything they do. I never considered myself weak or a coward. This scared me so much I lost 10 pounds in two weeks. I fought back from that. I gained 10 extra pounds from nervous eating. And I’m not usually — I’m not like that. I’m very even and practical normally. There have been months of lack of sleep, crying, headaches and much more when you are scared down to your core. Break down and cry because I don’t want to lose my house … There’s fear because sometimes there is no justice at the courthouse. We’ve all heard about lawsuits that have the craziest, wrong results. It’s scary to be up against a big, rich corporation with tons of attorneys and not know if there’s going to be justice out there …”
She later said, “I want my quiet little life back. I don’t want to be scared any more. I’m not the only one scared. I can’t tell you the number of south county residents who call Tom or I to ask if they will be the next John Does. A SLAPP suit, you sue John Does to threaten other people from participating, classic sign — that’s what they did. Senior citizens are afraid of losing their life savings and their homes. Residents around the quarry were sent letters from the bully’s attorney, many thought they were being sued. Yes, I’m tired of living with intimidation and fear. I’m tired of sleepless nights and hours of crying …”
Barbara Diehl later said, “… I’m here to tell you I know other developers and corporations are watching this lawsuit against Tom. If they win this terrible lawsuit, you will see these tactics that were used against Tom and St. Louis County residents used all over this state. SLAPP suits are the beginning of the end of freedom of speech and freedom of assembly that our veterans and my ancestors fought for for over 200 years. Please protect all expressions of opinion in a public setting or about a public issue. Please don’t let other Missourians go through what Tom and I are going through right now. No one should have to live like this.”
Oakville resident Dick Roehl, a former state representative and Mehlville school board member, said he had opposed the transfer station for about a year and a half and displayed fliers he had distributed to his neighbors during that time.
“… And you know what? I haven’t passed out a flier in four or five months since this SLAPP lawsuit. And that’s what I want to address briefly is that my concern and my neighbors’ concerns I think are one of fear. There is a climate of fear that has developed over this, a climate of intimidation and we need protection for our First Amendment rights,” Roehl said.
“We don’t feel like the judiciary, given its history, is going to protect our First Amendment rights. They haven’t done it and therefore that leaves it up to the Legislature and we strongly encourage you to take as a very serious matter and I know you will and pass some legislation so that people can speak their free mind and exercise their First Amend-ment rights.
“And by the way, none of these fliers say anything about terrorists on them, but as a sidebar, I happened to look up in my Funk and Wagnall’s earlier the definition of a terrorist, which is a group of people who use threats and intimidation against individuals in order to get them to do what they want — just a note,” he said to a round of applause.
