NOTICE: MAYORAL COMMITTEE MAKES PROGRESS in recent meeting!
Hello Everyone!
We just wanted to take a moment to keep you all informed about how the candidate's committee is doing with plans for the '06 council races coming to a location near you! As you know, IMO, the visiting team (SJD/JDC) has been engaged in a legal action (SLAPP suit) against some of their own resident/homeowners (fairly recent customers). This has garnered much local media attention, but the committee's work went on uninterrupted as usual. We are currently canvassing the Mo-City neighborhoods--keep an eye out for us!
If you recall the committee was formed earlier in the year to search for candidates and establish local election themes (a platform) in order to run a candidate against the developer backed mayor Allen Owen of Missouri City (SJD/JDC is a major backer of Owen). A short list of candidates has emerged and will be released when the final selection has taken place. We appreciate these individuals commitment to local control and not taking Houston corporate monies in the upcoming election (see brazosriver.com for Owens financial backing--his bank also handles the Missouri City accounts).
The home team, local homeowners and residents supporting the new mayoral candidate, met and discussed many local issues that have gone unaddressed here over the years. These themes are evolving into the platform for the home team challenger in '06.
Major Themes:
-A major theme which continued to come up at the
session was restoring honesty and integrity to local
city government (recent events over the past year
supporting this were discussed).
-Real tax relief that keeps quality of life as its core principle.
-Reduce disparity in development in some areas of Missouri
City. The committee placed an emphasis on this theme
because of the differences in home values in different
locations of MC. The focus of a new administration
would be on protecting homeowners value throughout MC, not just newer areas.
-A greater concern for the natural environment and
development concerns (a more eco friendly strategy
through incentives).
-Review of Fast Track Privileges for corporations instituting negative PR models.
-Long term planning with real citizen input
(neighborhoods discussed with regard to this were Lake
Olympia, Quail Valley, Colony Lakes, others and the impact aging
communities will have on property/home values if we
aren't better prepared and involved).--Question--Has the
current administration taken us in this direction?
-Term limits were the final topic discussed. The group
wished to examine this further with possible adoption
into the platform coming soon.
Thank you for your support and continued e-mails. If you wish to get more involved then you can contact the committee at candidate_search_committee@yahoo.com.
****FINAL NOTE: We would like to welcome Matthew Feinberg back to "free speech alley". He recently launched his new blog at http://www.thewebbie.com. As most of you remember he is the web administator for the old SiennaTalk.com site and MissouriCityTalk.com site (closed IMO because of the SJD/JDC pressure of recent court actions). As you remember Matthew, with his attorneys, fought very bravely to defend the privacy and free speech rights (and the right to petition) through several Texas courts---all in pre-trial for the members of his neighborhood website. WE WANT TO THANK YOU FOR YOUR EFFORTS (AND MAYBE MORE TO COME--HUH?).****
posted by responsible_dvlpmnt at Monday, October 31, 2005
37 Comments:
Welcome back Matt! Keep the flag flying!
"The Imposter"
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"Eventually, the notion of a Texas court helping a private business learn the identities of anonymous web forum members attracted significant legal attention, including the American Civil Liberties Union Foundation of Texas."
This is a very dangerous precedent that should be challenged further. Not all courts would allow such a fishing expedition by a coproration doing public business like this.
From Khou:
Rollercoasters zoom one last time
08:31 AM CST on Monday, October 31, 2005
Associated Press
There are other amusement parks, but they aren't the same as Houston's AstroWorld, die-hard fans said.
AstroWorld was about more than the rides, many last-minute visitors said.
AP
Some of Astroworld's rollercoaster lines were air conditioned, like the one for Batman: The Escape.
It's about family memories and personal stories about rides like the Greezed Lightnin' and the fabled Texas Cyclone. Those earned AstroWorld a special place in the hearts of 41-year-old Larry Nelson and others like him.
"It's sad," Nelson said. "Our childhood was here. This was everything to us. It was always a place we could count on to go and have a great time. It is going to be missed sorely."
--I hope those developers use their money wisely.
It's too bad they didn't just relocate AstroWorld.
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Only if you can find some donated land would they even consider moving 6 flags. We used to use the passes quite a bit. It was a nice way to spend a day with the kids.
Here's an observation:
It's kinda funny watching the JDC lawyers chase you guys around from one website to the other shouting "defamation...defamation...defamation..." and you all keep on posting and changing websites. You can view the wreckage of the corporate battle going on against you guys by viewing the wake of closed websites. When are you all going to turn and fight back or at least make your last stand? Just an observation. . .
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Where is the money going to come from to "turn and fight"?
"Come and get 'em"
To the poster above we would have to respond that they spend much more resources "chasing" us (on the offensive). If we "turn and fight" it would look like the men of the Alamo rushing out to attack the enemy who had them surrounded and it would exhaust our resources that much quicker. If we follow the lesson of the Alamo we can hold out much longer.--Of course our response to JDC will always be "come take our cannons" (cannons are our metaphor for free speech rights here in Missouri City/Sienna Plantation--remember they are big backers of mayor Owen so those living in Mo-city who can vote, make sure you get out and do so in '06)!!!
PS--Of course we know they didn't survive but they did buy time for Texas! Pardon the war metaphor but this is TX.
PPS--We are considering a good SLAPP-back strategy though (look up previous materials already poste on SLAPPs).
This is a great SLAPP article (from http://www.prwatch.org/prwissues/1997Q2/slapp.html):
SLAPP Happy: Corporations That Sue to Shut You Up
Topics: activism | public relations
The corporate technique of suing people into silence and submission has become so popular that it even carries its own cute nickname in legal circles. Such lawsuits are known in lawyer lingo as "SLAPP suits," an acronym for "strategic lawsuits against public participation."
"Thousands of SLAPPs have been filed in the last two decades, tens of thousands of Americans have been SLAPPed, and still more have been muted or silenced by the threat," write law professors George Pring and Penelope Canan in their 1996 book, SLAPPs: Getting Sued for Speaking Out.
In their investigation of the trend, Pring and Canan found that "filers of SLAPPs rarely win in court yet often 'win' in the real world, achieving their political agendas. We found that SLAPP targets who fight back seldom lose in court yet are frequently devastated and depoliticized and discourage others from speaking out--'chilled' in the parlance of First Amendment commentary."
SLAPP suits achieve their objectives by forcing defendants to spend huge amounts of time and money defending themselves in court.
"The longer the litigation can be stretched out . . . the closer the SLAPP filer moves to success," observes New York Supreme Court Judge J. Nicholas Colabella. "Those who lack the financial resources and emotional stamina to play out the 'game' face the difficult choice of defaulting despite meritorious defenses or being brought to their knees to settle. . . . Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined."
"Initially we saw such suits as attacks on traditional 'free speech' and regarded them as just 'intimidation lawsuits,' " Pring and Canan state. "As we studied them further, an even more significant linkage emerged: the defendants had been speaking out in government hearings, to government officials, or about government actions. . . . This was not just free speech under attack. It was that other and older and even more central part of our Constitution: the right to petition government for a redress of grievances, the 'Petition Clause' of the First Amendment."
SLAPP suits threaten the very foundation of citizen involvement and public participation in democracy. "Americans by the thousands are being sued, simply for exercising one of our most cherished rights: the right to communicate our views to our government officials, to 'speak out' on public issue," state Pring and Canan. "Today, you and your friends, neighbors, co-workers, community leaders, and clients can be sued for millions of dollars just for telling the government what you think, want, or believe in. Both individuals and groups are now being routinely sued in multimillion-dollar damage actions for such 'all-American' political activities as circulating a petition, writing a letter to the editor, testifying at a public hearing, reporting violations of law, lobbying for legislation, peaceful demonstrating, or otherwise attempting to influence government action."
SLAPPed Into Submission
Corporate libel lawsuits bring the formidable powers of government and industry together for the purpose of suppressing the views of people with complaints against the system. Ironically, the PR industry is eagerly hyping these lawsuits as populist solutions to the problem of too much government.
Tom Holt, a Washington policy wonk whose life reflects in microcosm the pattern of collusion that unites government and industry interests, epitomizes the contradictions and hypocrisy inherent in this position.
Holt began his career after receiving training at the Morton Blackwell Leadership Institute, a corporate-funded school which teaches conservative college students how to start their own campus newspapers to compete against perceived liberal bias in schools' official newspapers. Following a brief stint with the Richmond, Virginia Times-Dispatch, he became "research director" for the Commonwealth Foundation, helping churn out a study which argued that lawsuits against the tobacco industry did more harm than good, creating a "litigation superhighway where lawyers are the ones who will make the most money."
After serving as a speechwriter for two US secretaries of transportation, Holt went to work as a public-relations staffer for the right-wing Heritage Foundation before signing on at another right-wing Washington think-tank called the Capital Research Center. As a CRC "visiting fellow," he authored a book titled The Rise of the Nanny State: How Consumer Advocates Try to Run Our Lives, which accused the consumer movement of "capitalizing on the public's ignorance of science and the media's eagerness for calamity."
According to Holt, reforms are necessary to make it harder to sue corporations because "the consumer movement has imposed significant costs on industry--costs ultimately passed on to consumers--and has violated individual freedoms in a futile effort to protect us from our own actions and judgment."
In order to restore those freedoms, Holt is now calling for new laws so that corporations can use the nanny state more effectively to sue, chastise and punish their enemies. "Could lawsuits be the cure for junk science?" he asked in a 1995 issue of Priorities, the monthly publication of Elizabeth Whelan's corporate-funded right-wing advocacy group, the American Council on Science and Health.
Power to the Plaintiffs
Holt complained that current libel law "has been a major stumbling block to the progress of a lawsuit brought by the Washington Apple Growers against the National Resources Defense Council, perpetrators of the Alar scare. The growers initially filed suit in Yakima County (WA) Superior Court; but . . . the growers lost their case." (See our related story about the Alar case on page 10.) Fortunately, he added, "agribusiness is now fighting back, shepherding what are known as 'agricultural product disparagement laws' through state legislatures. . . . On the national level, the National Association of State Departments of Agriculture wants similar provisions to be included in the 1995 farm bill."
The drive has been spearheaded by the nonprofit, tax-exempt Animal Industry Foundation (AIF), which calls itself "animal agriculture's collective voice on food animal production, its effect on diet and environment, and its contributions to our quality of life."
AIF's corporate funders include the powerhouse Burson-Marsteller and Hill & Knowlton PR firms. Its trustees include a who's-who list of meat industry lobby and trade associations: the American Farm Bureau Federation, American Feed Industry Association, American Sheep Industry, American Society of Animal Science, American Veal Association., National Broiler Council, National Cattlemen's Beef Association, National Milk Producers Federation, National Pork Producers Council, National Turkey Federation, Southeastern Poultry & Egg Association and United Egg Producers.
"The model for these statutes was developed by the American Feed Industry Association," boasts an AIF newsletter. "If you'd like a copy of the model state legislation, please contact in writing Steve Kopperud at AFIA." AIF in fact shares the same address, phone and staff as AFIA--the American Feed Industry Association, a "national trade association representing the manufacturers of more than 70 percent of the primary formula livestock and poultry feed sold annually."
In a letter to Consumer Reports, Kopperud has defended the industry's rationale behind food disparagement laws, claiming that they "do not repress free speech, but rather compel a speaker to think twice about opportunistic or false statements and the damage such rhetoric can do. . . . Food disparagement laws, as tools to make more honest our national discussion of food safety, are the ultimate consumer protection."
The AIF speaks more bluntly in literature aimed at farmers: "Animal rights activists . . . threaten the survival of today's farmers and ranchers. . . . It's time to fight back! . . . through advertising, elementary school programs, publications and videos, news media outreach and public opinion research."
Rather than push for legislation at the national level, the food industry has worked quietly state-by-state while avoiding a controversial national debate. So far, thirteen state legislatures have approved product disparagement laws--Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota, and Texas. Other states are considering similar measures.
Profits Before People
Nicknamed in the news media as "banana laws" or "broccoli bills," agricultural product disparagement laws are designed to give even more power to SLAPP suits by rewriting the rules of evidence so that the food industry will have a better chance of winning in court.
The new legislation is designed specifically and expressly for the purpose of protecting industry profits by preventing people from expressing opinions that might discourage consumers from buying particular foods.
"An anti-disparagement law is needed because of incidents such as the Alar scare several years ago," argued the Ohio Farm Bureau in lobbying for the new law. "Apple producers suffered substantial financial losses when people stopped eating apples because of reports that Alar, a pesticide which can lawfully be used on apples, would cause serious heath problems. These reports were later proven to be false, but the damage had been done."
The penalties for food disparagement vary from state to state. In Idaho, defendants can be required to pay a penalty equal to the plaintiff's claimed financial damages. In Texas, the penalty is three times the damages. In Colorado, the legislation included provisions for actual jail time of up to a year.
According to Holt, the new laws place "the onus on the disparaging activist, rather than under liability law, which would place the onus on the grower or manufacturer of the disparaged product."
Shifting the onus means that instead of corporations being forced to prove their critics are wrong, food critics can be judged guilty unless they can prove that what they have said is correct.
"That type of speech, I don't feel needs to be protected," argues Kansas cattle rancher Jim Sartwelle. "It's important to have some sort of backstop in place to penalize people for making unsubstantiated comments."
Truth in the Eye of the Beholder
The problem, of course, is that no one except God can consistently and correctly distinguish between "correct" and "incorrect" views. "Who knows what the hell that is?" asks Tom Newton of the California Newspaper Publishers Association. "Scientists say there is no such thing as reliable scientific fact, that science is based on hypothesis and conclusions, and is ever-changing."
"If I say that hogs kept in confinement are being cruelly treated, am I making a mistake of fact?" asks farmer and Illinois law professor Eric Freyfogle, explaining his opposition to the legislation. "Indeed, I am not. What I'm talking about is a matter of ethics. I may view as unethical behavior that which someone else finds entirely reasonable. But that's the great benefit of a democracy based on free speech--we can air our differences in public, without worrying about the speech-police coming to arrest us."
"Agricultural disparagement statutes represent a legislative attempt to insulate an economic sector from criticism, and, in this respect, they may be strikingly successful in chilling the speech of anyone concerned about the food we eat," observes David Bederman, Associate Professor of Law at Emory University Law School. "The freedom of speech, always precious, becomes ever more so as the agricultural industries use previously untried methods as varied as exotic pesticides, growth hormones, radiation, and genetic engineering on our food supply. Scientists and consumer advocates must be able to express their legitimate concerns. The agricultural disparagement statutes quell just that type of speech. At bottom, any restriction on speech about the quality and safety of our food is dangerous, undemocratic, and unconstitutional."
Even though disparagement laws present a chilling threat to journalists, actual press coverage of new laws has been scant, tending to trivialize the issues with light-hearted commentary about "veggie hate crimes" or humorous wordplay. "Mind how you disparage asparagus or berate broccoli," advised the headline in the Los Angeles Times. "Don't bad-mouth that Brussel sprout. It could cost you," quipped USA Today.
Some Examples of Corporate Censorship Lawsuits
* In Las Vegas, a local doctor was sued over his allegations that a city hospital violated the state's hospital cost containment law.
* In Baltimore, members of a local community group faced a $52 million lawsuit after circulating a letter questioning the property-buying practices of a local housing developer.
* In West Virginia, an environmental activist faced a $200,000 lawsuit for criticizing a coal mining company's activities that were poisoning a local river.
* In Pennsylvania, a farmer was sued after testifying to his township supervisors that a low-flying helicopter owned by a local landfill operator caused a stampede that killed several of his cows.
* In Washington state, a homeowner found that she couldn't get a mortgage because her real estate company had failed to pay taxes owed on her house. She uncovered hundreds of similar cases, and the company was forced to pay hundreds of thousands of dollars in back taxes. In retaliation, it dragged her through six years of legal harassment before a jury finally found her innocent of slander.
* In Rhode Island, a resident of North Kingstown wrote a letter complaining about contamination of the local drinking water from a nearby landfill and spent the next five years defending herself against the landfill owner's attorneys, who charged her with "defamation" and "interference with prospective business contracts."
* In South Carolina, an animal rights activist was sued for $4 million after writing a letter to an obscure research journal protesting an Austrian company's plans to use chimpanzees in hepatitis research.
* In Missouri, a high school English teacher was hit with a $1 million libel suit after complaining to a weekly newspaper that an incerator burning hospital waste was a health hazard.
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I wonder if JDC is instituting this suit to keep their mayor in power to protect their business interests?
Ck this one out:
"There are two kinds of lawyers, those who know the law and those who know the judge"
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Looks like the free ads are attacking again.
Lawyers take everything
A reporter outside of a courtroom asked a defendant clad only in a barrel: "Oh, I see your attorney lost the case!" The defendant answered, "No, we won."
The cut/paste below is a thread currently running on TheWebbie.com (the Feinberg website). Apparently another appeal has been filed. We will post more here when it becomes available:
29 Oct 2005 11:05:29 pm
My fight with SJD
Recently FortBendNow.com posted a news story that finally made any sense.
http://www.fortbendnow.com/news/317/
Bob did a great job! Thanks
Doug Goff needed to write is own commentary.
http://www.fortbendnow.com/opinion/330/
As usual Mr. Goff only tells the half truths.. My OPINION!!
We requested a settlement with SJD more than a week and a half ago. We are asking for them to put in writing that they will not Sue me as they keep claiming. They won't do it!! I guess I will just have to appeal everything all the way to the Supreme Court. It is not costing me anything. The Texas ACLU must feel there is merit otherwise they would not spend their time or money.
Oh.. BTW.. Douggie.. Since you paid me for the domains siennatalk.com and siennaplantationtalk.com your company as failed to take possession. I guess you were not concerned about them after all!! Actions speak louder than words.
Category : RANTS!!! | Posted By : thewebbie | Comments [15] | Trackbacks [0]
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Loved the comments at the bottom of the FBNOW editorial!
By : "Internet Imposter" @ Time : 31 Oct 2005 06:35:30 am : Email : Home
We just loved reading the editorial comments. They helped put the response by the V.P. of JDC in persepective. Tell the constitutional attorneys thanks and we may need them again (tell Laura she's doing a bang-up job too)!
"Internet Imposter" (the name is Doug's creation)
Welcome back Matt!
By : zorro1 @ Time : 31 Oct 2005 08:56:50 am :
Just wanted to give you a big warm welcome back to free speech ally and wish you all the best with your blog!
Zorro!
Free Speech in Sienna Plantation?
By : DonQuixote @ Time : 31 Oct 2005 11:21:36 am :
They never intended on using it. Just silencing it. I noticed they are forcing everyone to re-register on SiennaNet.com when they roll out the new version that we as residents pay for. I wonder if they are going to try and selectively keep certain paying non-voting members out?
Back on the aire. . . !
By : LoneRanger @ Time : 31 Oct 2005 11:42:29 am :
Keep up the great work Matt!
Attempt to Marginalize Residents/Citizen Voices--
By : PhantomPoster @ Time : 31 Oct 2005 01:32:06 pm :
I think most citizens who read that article can get a pretty good picture of who is "bullying" who. It's ashame that the legal system allows this (makes you wonder who is pulling the strings at the county level).
This has always been and probably always will be the standard methods/tools that the powerful use to marginalize the rank-and-file in this or any community.--Phantom--
SLAPP article (good source)--
By : internetimposter1 @ Time : 31 Oct 2005 04:33:51 pm :
Overview>
By Lori Potter
Attorney, Kelly, Haglund, Garnsey & Kahn
Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined. — Judge J. Nicholas Colabella (1992)
Strong statement or overstatement? Judge Colabella was referring to the threat posed by Strategic Lawsuits Against Public Participation, or "SLAPPs." SLAPPs are lawsuits filed in response to or retaliation for citizen communications with government entities and employees.
Citizens have been sued for testifying before their city councils and county commissions, about building permit and zoning change applications, for expressing concerns to school board members, and for reporting violations of environmental laws to regulatory agencies, to give just three of thousands of examples. In short, these citizens were sued for doing exactly what the Constitution allows and encourages them to do, which accounts for Colabella’s strong words in Gordon v. Marrone, a 1992 New York case.
The particular provision of the First Amendment that is threatened by SLAPPs is the petition clause ("Congress shall make no law " abridging the " right of the people " to petition the Government for a redress of grievances"). George Pring and Penelope Canan, the authors of the leading work on the topic, SLAPPs: Getting Sued for Speaking Out (and the coiners of the acronym), have dubbed the petition clause "the unknown soldier of the Bill of Rights."
While the petition clause may be less renowned than the First Amendment’s guarantees of free speech, press and religion, the right it protects is every bit as basic to our form of government.
In a representative democracy, public participation is the cornerstone of the system; it is a bedrock principle that connects government to the governed. It legitimizes the system and helps to make government accountable. On a day-to-day basis we rarely think about it in the exalted terms of its intellectual, legal or policy underpinnings, which go back to Aristotle and the Magna Carta, among other sources. We simply take for granted what is both obvious and invisible: Public participation in government is a creed by which the nation lives. Public participation — i.e., petitioning — ranges from the sublime to the messy, but it is authorized and encouraged by procedures and forms at every level of every branch of our government. That is why being sued for engaging in petitioning activities not only strikes one as incongruous but indeed is antithetical to our form of constitutional democracy.
The phenomenon of suing an individual who communicates with or tries to influence the government is common. Pring and Canan’s national study in the early 1990s found thousands of examples of SLAPPs. Their study also found countless additional examples of threats of lawsuits that had the same desired effect: causing citizens to rethink and retreat from their public participation for fear of costly and time-consuming litigation.
SLAPP complaints do not arrive bearing claims labeled as "SLAPPs." Typically, a "SLAPPer" brings causes of action for defamation, conspiracy, abuse of process, interference with contract, and other common-law claims. As Pring and Canan point out, the first — and sometimes highest — hurdle for an attorney defending against a SLAPP for the first time is recognizing that what may appear to be a garden-variety tort claim is not, and that such a claim may be effectively prevented from becoming a lawsuit if it targets speech to any branch of government.
Petition-clause immunity as a defense against SLAPPs
When SLAPPs are defended against on the basis of the petition clause of the First Amendment, nearly all such litigation is dismissed, or summary judgment is entered for the defendant, as Pring and Canan note. Consequently, most of the reported case law is favorable to SLAPP defendants. This lopsided win-loss record has done nothing to discourage the filing of SLAPPs, however. Pring and Canan concluded that SLAPPers do not sue to achieve a litigation outcome; rather, they file to silence their opposition. Generally, the mere filing of the suit — or just the threat of suit — accomplishes that purpose.
The U.S. Supreme Court and the lower federal courts (and many state courts) have found that the petition clause provides an immunity to citizens who speak out to influence the government. This immunity is sometimes known as Noerr-Pennington immunity, because it has its roots in a line of antitrust cases that hold that efforts to influence public officials through lobbying, publicity, and other contact are protected by the petition clause (and are not a violation of antitrust law) even when the petitioning activity is undertaken for a disfavored motive, such as eliminating competition. (See United Mine Workers v. Pennington, 1965; Eastern Railroad Presidents Conference v. Noerr Motor Freight, 1961.)
Later Supreme Court decisions also make clear that "Noerr-Pennington immunity" is synonymous with First Amendment immunity and applies to petitioning and to claims outside the antitrust context. For example, in NAACP v. Claiborne Hardware (1982), the Court overturned judgments in favor of merchants whose businesses had been economically harmed by a boycott. The NAACP organized a boycott and picketing to support its petition to the local government for passage of anti-discrimination laws to advance racial equality and integration. The Court relied on the Noerr-Pennington line of cases and held that all of the NAACP’s conduct was immunized by the First Amendment, notwithstanding the incidental economic impact on merchants. Accordingly, the Court overturned the holdings of the state courts of Mississippi and accorded immunity to the NAACP against state-law claims.
Two more-recent Supreme Court decisions in antitrust litigation, Professional Real Estate Investors v. Columbia Pictures, (1993) and Columbia v. Omni Outdoor Advertising (1991), applied petition-clause analysis and clarified the burden faced by a plaintiff challenging petitioning activity. When it appears that a plaintiff’s claims are lodged in response to a defendant’s legitimate use of government processes, a court must apply heightened scrutiny to those claims and dismiss them unless they can clear a high barrier.
Under the test first articulated in Omni, a defendant is entitled to immunity unless a plaintiff can demonstrate that defendant’s petitioning was "a sham." This requires the plaintiff to prove that a defendant used government processes as a "weapon." This inquiry looks not at the defendant’s intent or purpose, but at whether the defendant’s efforts were not genuinely aimed at procuring favorable government action at all. So long as the defendant acts to obtain a government outcome — a decision, action, or refusal to act — the defendant’s petitioning is not a sham and enjoys immunity under the petition clause. A winning petition — e.g., a successful lawsuit, or a request to an administrative agency that is acted upon favorably — by definition is not "a sham." At the motion-to-dismiss or summary-judgment stage, then, the standard is an objective one that looks to the outcome of the process defendant engaged in, not a subjective one that looks to defendant’s intent. This result is consistent with the petition-clause goal of encouraging and protecting speech directed to the government.
Professional Real Estate Investors presented the question of petition-clause immunity as applied to counterclaims in litigation and set forth a two-part definition of "sham." The first prong requires a plaintiff to show that a citizen’s communications with government agencies were "objectively baseless." The second prong, which a court need not even consider if a plaintiff cannot satisfy the first, is the test articulated in Omni: whether the defendant’s communications were not genuinely aimed at procuring favorable government action. The SLAPPer bears the burden of proof on both prongs and must meet that burden at the motion-to-dismiss or summary-judgment stage of the case.
Many state courts have fashioned similar tests under the petition clauses of their state constitutions, or have applied First Amendment petition-clause immunity to claims arising in state courts. (See, e.g., Protect Our Mountain Environment, Inc. v. District Court, a 1984 Colorado case. The “sham” burden of proof has been codified in some states’ anti-SLAPP statutes. (See a list of states with laws protecting SLAPP victims.)
Disposing of cases on the basis of petition-clause immunity
The policy underlying First Amendment immunity requires prompt dismissal of claims invalidated by petition-clause immunity, sparing the courts and litigants the costs and time otherwise expended on litigation targeted at protected petitioning activities. Although experience shows that nearly all claims targeting petitioning are eventually dismissed, the mere filing of the action causes a citizen to pay a high price in time, money and peace of mind for having exercised the constitutional right to petition the government.
In the Omni case, the Supreme Court indicated that in order to achieve the goal of minimizing intrusion on the First Amendment, lawsuits that attack constitutionally protected petitioning activities must be dismissed by the court on motion, not heard by a jury at trial, except in those rare instances when a plaintiff can prove the defendant’s petitioning comes within the "sham" exception to immunity. First Amendment petitioning activity is chilled by allowing a plaintiff to conduct discovery, go to trial, and otherwise exhaust the time and resources of a defendant on claims that cannot cross the immunity threshold.
Courts also have achieved the goal of early review and dismissal by enforcing strict pleading standards as a result of the assertion of immunity as a ground for dismissal. (Pleading standards are the legal requirements for pleading a cause of action in court.) Where a claim touches upon the right to petition, many courts will apply a heightened pleading standard (see, e.g., Oregon Natural Resources Council v. Mohla, a 1991 case from the 9th Circuit). These courts concur with the conclusion Pring and Canan made after their study: There is a danger that the mere filing of the action will chill the exercise of First Amendment rights, and this demands more specific allegations than would otherwise be required. Specifically, a plaintiff cannot overcome the target’s First Amendment immunity if it fails to allege that defendant communicated with government for a reason other than to support petitioning activity. In other words, some courts have held that to survive a motion to dismiss a plaintiff must allege that defendant engaged in tortious activity for some purpose other than to influence a governmental agency or process. The certification requirements of Rule 11 of the Federal Rules of Civil Procedure and its state counterparts would apply to such allegations.
Found this on MissouriCityChatter.blogspot.com
By : spider_man @ Time : 31 Oct 2005 04:44:24 pm :
Anonymous said...
Found this on FortBendNow as a response to Goff's editorial. We'll call it...lets just say--> CRD: Getting At The Truth Behind Doug Goff (for lack of a better title)
3 Resp. Dvlpmnt. - Oct 30, 04:31 pm Hello,
Naturally the developer has some “special” privilege to share information from the court protected depositions? We won’t violate the court protective order but we will respond to some of the misinterpretations of the 400-500 pages of transcript taken.
Some clarification first:
The deposition used in this case by JDC/SJD attorney John Keville and Doug’s subsequent interpretation of it is based on his opinion of the findings and not a courts or juries. He is attempting to base his limited claims on several hundred pages of testimony…which may be inaccurate and certainly based on his OPINION of the transcript..NOT fact. Remember this deposition was rather one-sided, expensive and brought by the SJD/JDC crowd and does not allow other witnesses or cross-examination by the target/defendant (which is still unnamed at this juncture of PRE-TRIAL discovery). Dr. Calvin was named as a witness on this documentation (which seems, IMO, to conflict with statements in Doug’s editorial too).
*This case is a template borrowed from SLAPP cases which have been used by many developers around the country to silence groups (punish them) and individuals engaged in public debate (such as land use issues). See the research on this previously posted on SLAPP cases.—The most common claim by developers in these cases is DEFAMATION/DISPARAGEMENT. The intent is to “CHILL” the community (silence them). It’s a high stakes game but the developers in these cases, that aren’t settled early, usually lose (as high as 80%). Many states and the U.S. courts have anti-SLAPP statutes, however TX does not (defeated 4 times by the developer PAC lobby in Austin). The purpose for the corporation filing the SLAPP is to inflict maximum financial harm on the target (which IMHO appears to have already happened in this case $20-25K in two months).
– The following claim by Doug (as a representative of SJD/JDC) is another example of misinformation on the part of the Goff editorial:
“3. The alleged escalation of legal costs was not caused by SJD, but by the attorneys representing Mr. Calvin and Mr. Feinberg. Mr. Feinberg was represented by the ACLU and they repeatedly filed motions against the depositions going forward in three different courts including the Texas Court of Appeals. Ultimately, all three courts have rejected the legal claims presented by Mr. Calvin, Mr. Feinberg and the ACLU. If Free Speech rights were truly an issue here, then at least one of the courts would likely have agreed with them and the ACLU. But to say in some of the comments following the story that the Free Speech rights of Sienna Plantation residents are in jeopardy is ludicrous and Mr. Calvin knows this.”
The statement above from the OPINION piece offered by Doug states several erroneous claims. First the appeals were filed by Ms. Hermer (Feinberg’s attorney) and the constitutional experts, not Jeff Singer, Dr. Calvin’s attorney.—error1
Error2…IMO the final court appeal ruled that since the depositions had already taken place that the arguments were moot (Ruiz did not allow an extension for the last appeal to be effective). So the case was sent back to the court of origin (Ruiz’s ct.). This is not a victory for Doug’s attorney or a ruling against free speech as implied above. The judge (from the same state district as the other appeals…and ct of origin) simply stated the depositions had passed.
*As anyone knows who follows SLAPP cases keeping the deposition fishing expedition from happening is crucial to keeping these cases from getting dragged into, what experts call, “fact quagmire” (arguing over each statement made and its intent). According to the research when depositions have been allowed the financial damage to the target/targets and the length of these trials extends quite a bit. In most states with anti-SLAPP statutes these cases are thrown out before deposition (which institutes the primary financial harm/punishment in pretrail).
If these facts above are misleading then how many of the other ones in the editorial are too. *More fact quagmire probably. . . .
**If you’d like another opinion on this or other area concerns then please e-mail us at responsible_dvlpmnt@yahoo.com and we encourage you to speak out on issues that impact you!
SLAPP defense--
By : antiSLAPPer @ Time : 01 Nov 2005 06:57:26 am :
"Petition-clause immunity as a defense against SLAPPs
When SLAPPs are defended against on the basis of the petition clause of the First Amendment, nearly all such litigation is dismissed, or summary judgment is entered for the defendant, as Pring and Canan note. Consequently, most of the reported case law is favorable to SLAPP defendants. This lopsided win-loss record has done nothing to discourage the filing of SLAPPs, however. Pring and Canan concluded that SLAPPers do not sue to achieve a litigation outcome; rather, they file to silence their opposition. Generally, the mere filing of the suit — or just the threat of suit — accomplishes that purpose."
I found this quote from one of the above articles very telling. Have your people looked at using this defense yet?
ACLU
By : lastsamurai @ Time : 01 Nov 2005 12:12:19 pm :
Are you all going to continue the battle against JDC and do you need allies?
Let us know if you need help!
By : "theraiders" @ Time : 01 Nov 2005 12:55:46 pm :
Blow the bugle and we will come! Hold on until we get there.
"theraiders"
Yet another appeal!
By : Right to be anynomous @ Time : 01 Nov 2005 07:15:03 pm :
I heard from a good source that the ACLU has filed another appeal on behalf of Matthew Feinberg. Way to go!!! Give them hell!!
This is great news!
By : opposecorporatecensorship @ Time : 02 Nov 2005 07:09:24 am :
This is wonderful news. Please keep us posted on this and any subsequent actions. Keep it up!
opposecorporatecensorship
PRSPIN--
By : PRSPIN @ Time : 02 Nov 2005 07:15:42 am :
Have you noticed that everytime an article appears in one of the local media outlets (newspapers or webzines) that fairly quickly Sienna Plantation (SJD/JDC) ad shows up in the source. I see a photo-op running for Sienna currently in the Fort Bend Now (webzine).--interesting
Too Bad
By : Right to be Anynomous @ Time : 02 Nov 2005 08:17:30 am :
Too bad that Goff and Johnson were not in the prison outfits. It would be very fitting. HAHALOL..
You see.. If SJD pays for advertising then the media outlet they are paying is less likely to write anything negitave about them.
Importance of citizen involvement!
By : InternetImposter @ Time : 02 Nov 2005 10:07:38 am :
"In a representative democracy, public participation is the cornerstone of the system; it is a bedrock principle that connects government to the governed. It legitimizes the system and helps to make government accountable. On a day-to-day basis we rarely think about it in the exalted terms of its intellectual, legal or policy underpinnings, which go back to Aristotle and the Magna Carta, among other sources. We simply take for granted what is both obvious and invisible: Public participation in government is a creed by which the nation lives. Public participation — i.e., petitioning — ranges from the sublime to the messy, but it is authorized and encouraged by procedures and forms at every level of every branch of our government. That is why being sued for engaging in petitioning activities not only strikes one as incongruous but indeed is antithetical to our form of constitutional democracy."
This piece from the above article seems to encapsulate the arguments well. Hopefully the constitutional attorneys will include the petition clause in their briefs too.
-"InternetImposter"
Hebert explains (response to Hilton editorial on MUD/ECO Scandal):
Editorial/Opinions
Hebert rebuts conflict of interest claim
10/31/2005
Email to a friend Voice your opinion Printer-friendly
(This is in response to a letter from Tom Hilton published in the Oct. 26 issue of Fort Bend/ Southwest Sun.)
To the Editor:
I was surprised that Mr. Tom Hilton, a resident of Arcola and a sometimes candidate for city council there, wrote that he was "shocked" to discover that I would publicly admit to my consulting agreement with the parent company of ECO Resources, Inc. (ECO).
After giving the matter some consideration I realized that not everyone sees all the public information available on their elected officials and many new residents who have come to Fort Bend County in the past three years may also not be aware of the facts. Therefore it seems prudent on my part to respond to his letter.
By coincidence, the article on Page 3A of that same edition of the Sun refers to my candidacy for re-election and contains acknowledgement of the consulting agreement; as does my official resume, which is readily available to anyone on my personal website at www.bobhebertcountyjudge.com.
I initially made my consulting agreement public when I announced my candidacy for office in 2002. Upon being sworn in as county judge in 2003 I filed a potential conflict of interest notice with the county clerk naming Southwest Water, ECO and all other Southwest subsidiaries.
At the first meeting of commissioners court at which I presided I again publicly announced my relationship with those firms and called on the county attorney and the county auditor to assist in making me aware of any matter before the court in which any of those firms might have an interest so I could recuse myself from debate and abstain from any vote on the matter.
As to Mr. Hilton's comments on my influence or leverage on cities and utility districts, I submit that these agencies are independent of county government and are controlled by their own state codes and their own elected officials. Oversight of their water utility operations is vested in the Texas Commission on Environmental Quality (TCEQ) whose directors are appointed by the governor with consent of the Senate.
Texas counties are barred by state law from investing any tax dollars to operate a public water utility; therefore Texas counties, including Fort Bend, are not in the water business. There is no inherent conflict between my service to the county and my consulting agreement.
I do not know all the facts pertaining to the matter of the "allegedly victimized local water districts" mentioned in Mr. Hilton's letter. Since my meeting with ECO executives and the attorneys representing ECO's client districts I have not been directly involved in the ongoing investigation. Almost all of what I know about the matter comes from reading our local newspapers, and by what I can glean from them it appears that ECO, acting on its own initiative, engaged an independent forensic accounting firm to review its books and records, brought the matter to the attention of its clients and the public, investigated and made quick restitution of all misappropriated money with interest, and took their facts to the Fort Bend County District Attorney's Office for further investigation.
While it is true that this entire incident is sad, regrettable and embarrassing for the hundreds of wonderful employees at ECO who professionally and honorably serve the public every day, I can only hope that other companies caught up in similar situations within Mr. Hilton's "ethically-challenged business environment" would react in the same highly ethical manner demonstrated by ECO.
Although I must admit to a natural bias toward the company I founded in 1972 and have been associated with for over 30 years, I would ask your readers to judge ECO and its employees in this matter by the manner in which they have responded to date, and do respond in the future.
Advertisement
Bob Hebert,
County Judge
This just in from http://www.thewebbie.com :
Fort Bend Star Report->
By : freepressorcorporatecensorship @ Time : 02 Nov 2005 04:18:31 pm :
FB Star article 11/2/05:
“Sienna blogger admits to using many aliases
By Barbara Fulenwider
Even though some Fort Bend County media have reported that Sienna/Johnson Development (SJD) is suing some of its homeowners, they haven't, at least not yet, and are only considering suing one - Chris Calvin.
What they have sought and received from the judge of the 240th District Court is permission to take deposition from two Sienna Plantation homeowners. One is Chris Calvin, an activist opponent to apartments in Sienna and a blogger, and the other is Matthew Feinberg, the administrator of two blog sites Calvin used to voice his opinions about Sienna/Johnson Development and Doug Goff, senior vice president and director of land development for Sienna/Johnson….
"
Notice the Star is giving the same one-sided reporting they usually do. They don't even mention the violation of the court order by Mr. Goff or Mr. Keville by releasing their synopsis of what they believe the transcript says (read the entire Goff quote in this weeks Star). This reminds me of the famed "Tree Hugger" article they published a few months back where by mayor Owen called the "no more apartments" petitioners a bunch of "tree huggers" (remember that one two offered no quotes from the opposing side--the "tree huggers"). Yes I know you've got to buy an ad to get proper coverage.
Freepress or corporatecensorship (you pick)
Then buy an ad!
This comment has been removed by a blog administrator.
Check out Matthew's Blog. http://www.thewebbie.com/
I think something pissed him off because he went on a long rant about the star article.. quite funny if you ask me.
This comment has been removed by a blog administrator.
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Sounds like the PR office for our local nemesis just visited. Yes you are welcome here too in "Free Speech Alley" just stay on topic and welcome to our new found friends from Sugar Land (right it is Sugar Land--right?).
While your at it here's one that will get you roaring from FortBend Now.com:
http://www.fortbendnow.com/opinion/351/an-open-letter-to-the-missouri-city-mayor
and if that isn't enough here is a good lawyer joke for your friend JK:
Q: What's the difference between a good lawyer and a bad lawyer?
A: A bad lawyer can let a case drag out for several years. A good lawyer can make it last even longer.
. . . ;-) (John the emoticon is representative of humor--ok?)...
Didn't mayor Owen fight the property tax cap earlier this year that went to the state legislature and was defeated by special interests?
What about his bank handling all the city accounts?
Didn't he invite residence to leave Missouri City if they didn't like it? Sounds like the Fulshear mayor just a month ago with his EDC boys backing him up when they were talking to the Simonton crowd.--These Houston corporate types are very pushy out here...
-Maybe we need to take back our local governments!
I just heard a rumor that they actually have more than one candidate. Is this true?
I think they have potential candidates for two different races. I'll ck on it.
This comment has been removed by a blog administrator.
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