Just in from http://www.fortbendnow.com on the SLAPP suit filed by SJD/JDC:
Spat Over Apartments Could Impact Free Speech On The Web
by Bob Dunn, Oct 24, 06:29 pm
It seemed an unlikely hinge upon which Texans’ constitutional right to anonymous free speech might swing:
How many apartment units should the developers of Sienna Plantation be allowed to build, and where should they be located?
A disagreement over the answers to that question began boiling over in public a few months ago. Missouri City Council meetings regularly featured speakers railing over the building of apartments in Missouri City and nearby communities.
Mayor Allen Owen took heat after a deal was reached to relocate a planned group of apartments, to the dissatisfaction of a group of area residents.
In July, for instance, Sienna resident Chris Calvin spoke at a council meeting and said he’d obtained Mayor Owen’s list of campaign contributions, and that more than half of them came from developers. Among the largest contributors, Calvin said, was Larry Johnson, President of Johnson Development Corp. and Sienna Plantation’s developer.
Owen took issue, telling the Fort Bend Star after the meeting that “my vote has never been for sale, nor have I catered to anybody who made contributions to me.”
Thorn in the side
A self-described thorn in the side of the Sienna Plantation’s developers, Calvin heads what he says has become a consumer watchdog group – the Committee for Responsible Development – which he said once had 37 members but whose numbers have since dwindled.
Calvin said his motivation came in part from disenfranchisement. Sienna Plantation is outside Missouri City limits, so residents have no vote in city affairs. And, he said, the only voting members of the Sienna Plantation property owners association are appointed by the developer.
“We are not trying to hurt home sales,” he said. “We just want representation in what’s going on.”
Calvin didn’t limit his discourse to council meetings. He and other area residents discussed the apartments and various Sienna Plantation issues on Internet web site forums. One of those, run by Sienna resident Matthew Feinberg, operated on the domain siennatalk.com.
Officials at Sienna/Johnson Development, L.P., which holds a trademark for “Sienna” and “Sienna Plantation,” took notice.
To Calvin, it marked an attempt by Sienna/Johnson “to shut us up.”
In a July 19 missive to the Missouri City Council, Johnson Development Corp. Senior Vice President Douglas Goff said that assertion was incorrect. “Sienna/Johnson did not ask Mr. Feinberg to shut down his discussion forum, but only to stop using the Sienna and Sienna Plantation marks,” he said.
Substantial misunderstanding
Goff sent his message to the council in response to an anonymous email, also sent to members of council and to Larry Johnson of Johnson Development. The email, signed CRD, “reflects a substantial misunderstanding of the facts and makes several erroneous statements,” Goff said.
The email in question contended that Johnson Development Co. was trying to shut down mocitytalk.com, the new web home of Feinberg’s forums, opened after Sienna/Johnson informed him of the trademark issue involving siennatalk.com.
“They are now trying to force the site administrator into turning the domain names over to them,” the email states. “This obviously is not allowing free speech or open communications between residents here in Sienna.”
But it was another anonymous communication, posted under the pseudonym NextDoor on mocitytalk.com, also on July 19, that really drew Sienna/Johnson’s attention.
“You do not have the rights to Sienna Plantation – it is the name of a place. You would be shutting down all the other small businesses that use that name not just this site,” the post said. “So what, we changed the name now get off and leave us alone. So Matt doesn’t want to hand over the domain names – pay him for them at the price he wants just like you did the mayor and council that you are addressing in your post.”
Anticipation of a lawsuit
That post became part of the court records in a case Sienna/Johnson filed 15 days later in Fort Bend County District Court, in which it sought to depose Chris Calvin and Matthew Feinberg in anticipation of a defamation and business disparagement lawsuit “in which the Petitioner may be a party.”
In its petition to take depositions from Calvin and Feinberg, Sienna/Johnson said it and its employees “have been the subjects of false and disparaging statements, including malicious accusations of criminal conduct,” made anonymously on Feinberg’s web sites.
As its sole example of such disparagement, the petition seems to refer to the July 19 post by NextDoor: “For example, recently under the name “nextdoorneighbor” a message was posted that indicated Petitioner has made “pay-offs” to the mayor of Missouri City and Missouri City council members. Petitioner is informed that deponent Chris Calvin makes posting under the screen name “nextdoorneighbor.”
The petition also said Sienna/Johnson believed Calvin repeatedly posted on Feinberg’s web sites using multiple pseudonyms “to create the impression that large numbers of residents of Sienna Plantation and Missouri City oppose further development by Petitioner, and thereby affect Petitioner’s economic interest.”
Identification of users
Among other things, the petition asked that Feinberg produce “all documents concerning the identities and IP addresses for the registered users” of Feinberg’s web sites, including “CRD,” “responsible_dvlpmnt,” “BuddyJ,” “Mike,” “JaneL,” “starbuck,” “Jim_Calhoun,” “Bill_Crane,” “twinstuff2,” “nextdoor,” “nextdoorneighbor,” “sundaysiennasurfer,” “sss,” and “donny12.”
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.
Feinberg’s attorneys sought to have Sienna/Johnson’s petition quashed, but their motion was denied by Fort Bend County District Court Associate Judge Pedro Ruiz.
Ruiz did, however, grant a protective order stating, among other things, that identities of users of siennatalk.com and mocitytalk.com be considered confidential and would be disclosed only to attorneys in the case “as well as secretaries, paralegals, law clerks and support staff of those attorneys” and also the parties in the case and their partners and employees.
Ruiz’s ruling set off a flurry of activity by Feinberg’s attorneys in an attempt to head off the depositions, including a Notice of Appeal and Request For Hearing and Emergency Request for Stay of Orders, brought to court Oct. 17 just before the depositions were scheduled to take place.
Right to anonymous speech
“This matter raises an important issue of first impression to Texas jurisprudence,” Feinberg attorney Laura Hermer said in the 35-page notice. “To what extent does Texas protect its citizens’ First Amendment right to anonymous speech on the Internet…?”
As if in answer to that question, Ruiz denied Feinberg’s attorneys an extension of time to file the notice of appeal. And in an early-morning, Ruiz denied a stay of the depositions.
They took place as scheduled, and their full transcripts have not been made part of the public record, in keeping with the court’s protective order.
However, anyone who posted comments critical of Sienna Plantation on Feinberg’s web sites with the expectation of doing so anonymously has had his or her expectations dashed.
Douglas Goff and Chad Johnson of Johnson Development Corp. were present at the depositions, said Sienna/Johnson attorney John Keville, of Howrey LLP.
Among other things, the depositions clarified the issue of whether there really were a large number of people writing anonymous posts on Feinberg’s web sites about Sienna Plantation, Keville said.
“I think it’s fair to say that a lot of the identities were Mr. Calvin,” he added.
Calvin said the legal action by Sienna/Johnson is consistent with what have become known as SLAPPs – strategic lawsuits against public participation.
Keville insists otherwise.
“That’s absolutely not true,” Keville said. “Feinberg was never forced to shut down the web site. This was never about suppressing free speech.”
What to do next
However, he added, “when you cross the line into defamation, that’s another thing.”
As for the court case, Keville said he and his client are discussing what, if anything, to do next.
“We always said we never intended to file suit against Matthew Feinberg, and that still holds true,” Keville said. He would not extend that statement to Calvin.
“I know I’m the target,” Calvin said. “I think they’re trying to divert our political campaign. “We’re trying to get a candidate to run against the mayor.”
David Broiles, meanwhile, a cooperative attorney with the Texas ACLU who assisted in Feinberg’s case, said he and Feinberg’s other lawyers also are discussing what to do next. One possibility would be to seek an order that the depositions be sealed.
Gathering anonymously to talk on a web site forum “is a way of assembling” and a form of free speech protected under the Constitution, Broiles said. And if a court is being asked to compel people to divulge identities of people who have been accused of no wrong-doing, “we want to stop it.”
In Feinberg’s case, however, Broiles acknowledges that didn’t happen.
“It’s certainly a loss to this point,” he said. “We have certainly not prevailed.”
