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Friends of Historic Glasgow (Delaware) Discussions ACLU Supports SLAPP Suit Appeal 12-23-2007 After dragging on over 18 months in the DE Chancery Court before being dismissed, the SLAPP suit filed by developer Steven Nichols against FOHG activists Susan and David Arday is now before the DE Supreme Court. And the suit may finally be turning against the developer. The DE Chapter of the ACLU has filed an amicus brief on the Ardays' behalf, pointing out that no matter what the outcome, the Ardays were entitled under DE's anti-SLAPP statute to a prompt review of their motion to dismiss. Instead, the ACLU points out that Vice Chancellor Strine failed to undertake an appropriate analysis of the pleadings under that statute before allowing full discovery to proceed. If you want to know all about the the course of the SLAPP suit, read the summary posted on my (Dorcas Black's) member page, as well as the third section of the La Grange fact sheet, posted under the FOHG ''our pages'' section. But the points to be made here are two. First, this case has had significant First Amendment implications right from the start. The right to petition government for a redress of grievances is fundamental to our form of governance in the U.S. The purpose of a SLAPP suit is to discourage efforts by the public to influence government action. It's the neo-conservative form of the Golden Rule: ''He who has the gold, rules.'' The rest of the public is not supposed to interfere with the property rights of the rich, and certainly they are not to make their objections known to government officials. If they do, sue 'em. Force them to either shut up or spend thousands of dollars defending against a frivolous lawsuit, or both. It scares people away from speaking out, so that only one side--the moneyed side--is heard by government. In this case, the SLAPP suit was camouflaged behind an initial breach of contract suit filed against the sellers of the property. The developer then amended his complaint and alleged collusion between the sellers and the anti-development activists, based on no other grounds than a familial relationship. It soon became obvious that the activists were the real targets of the suit all along. Why? Because there was no evidence that the sellers had breached the contract, and almost all the discovery activity was directed at the anti-development activists, not the original seller defendants. This was a blatant attempt to establish a way around the anti-SLAPP law: allege collusion or conspiracy in Chancery Court and then be allowed to engage in extensive discovery to harass one's public opponents under the guise of enforcing a contract. The second point is perhaps more disturbing. The Delaware news media have ignored the First Amendment implications of this lawsuit ever since it was filed. There has been no editorial coverage, no outrage, no questioning of the developer's actions in this case, or of the Chancery Court giving the developer full leeway, in spite of DE having an anti-SLAPP law. Furthermore, most DE civic and preservation groups shied away from opposing the suit and the developer's plans once the court fight began. So the ''chill'' was felt. The SLAPP suit had its desired effect. Three cheers for the ACLU in pointing out the wrong that has taken place in the lower court. Let's hope the DE Supreme Court agrees and gives the anti-SLAPP law some expensive (for the developer) teeth, to discourage this from happening ever again. -By Dorcas Black |
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