Trying to organize your neighbors to protest a housing development? Planning on writing a letter to the editor crying that a new mall will cause traffic nightmares? How about a website campaign to protect local wetlands? Certainly you have those rights in America, right?
You certainly do, but if you exercise those rights, be prepared to spend to defend them. The cost of free speech in Pennsylvania just went way up.
The First Amendment protects protestors everywhere from lawsuits for their communications with government as long as their statements are not malicious or knowingly false. (Note those italics, they are important.)
But nay-sayers and dissidents lost an important protection last week, when a judge in Montgomery County refused to dismiss a lawsuit brought by a developer against residents who fought his townhouse project. Judge Richard Hodgson specifically rejected the protestors' anti-SLAPP defense.
SLAPP is an acronym for "strategic lawsuit against public participation". That is, a civil complaint filed against individuals or organizations because of their communications to government on an issue of public interest or concern. (Those pesky italics again.)
Anti-SLAPP laws, which exist in 20 states including Pennsylvania, prevent builders, big companies, and other well-funded bullies from suing less-well-offs who protest to the government about things like zoning and development. (There they are again.)
The bully's purpose in bringing such a suit is not necessarily to prevail at trial, but to stifle criticism by scaring the targets with fears of hefty legal costs and huge recoveries. Small groups or lone critics are particularly susceptible to this type of threat.
The anti-SLAPP statute gives a defendant (little guy) the power to get rid of a meritless lawsuit (by the big guy) before it inflicts its greatest damage: expensive discovery, months of harassing depositions, and years of uncertainty.
But not every little guy, or gal, qualifies to be protected. The key here is how the protest is handled. Anti-SLAPP laws cover "communications with a government agency" (remember those italics?). For instance, speaking at a township meeting, writing letters to supervisors or commissioners, or contacting a state agency are all OK. But we enter the gray area with activities like organizing neighbors, statements to the media, and zoning appeals to the courts.
That gray area grew considerably darker last week, when Hodgson ruled that statements to neighbors or the media, and the filing of lawsuits, are not protected by the anti-SLAPP law, especially when they were made after the municipality had already completed the determination being protested.
This is great news for developers, especially those in areas where obstructionists have bombarded the public, and the politicians, with half-truths, or made legal challenges just to block a project. Sound familiar?
The Montgomery County decision is not automatically binding in other counties. But, it is the first, and only, ruling on Pennsylvania's four-year old law, and, therefore, will be cited as persuasive precedent throughout the state. Specifically, it allows a developer, Michael Nolen, to proceed with his suit against two residents who allegedly "abused the legal process and harassed him and potential customers" in an attempt to stop his townhouse project.
This does necessarily not mean that Nolen will win his suit. It does not mean that vocal opponents can never speak up, and that dissent is permanently muzzled. Developers and corporations which sue must still show in court that they were damaged, and lost income, because of the actions of the defendants. And the First Amendment is still in the Constitution.
But protestors must now really be prepared to put their money where their mouths are. There is a saying in the law that a defendant is never a winner. Costs can be staggering.
Judge Hodgson is not the Supreme Court, but until someone either successfully appeals the decision, or fights the battle elsewhere, his opinion is a warning and a weapon. Dissidents should be very careful what they say, and where they say it. Remember those italics.
Roundabout is Justabout Finished
The wait is over, Richland. The barricades are down. The signs are up. And the traffic is flowing in three of the four directions of the new Station Road/Old Bethlehem Pike traffic roundabout.
After a nightmarish few days in which some brain-dead motorists ignored temporary construction barriers, and drove on the wrong side of the unfinished road to get through what must have looked like Stonehenge, simplicity has been restored to the township's lower end.
And, after about a week of hmmm-what-have-we-here hesitation by first-time users, the reviews are actually quite good. Drivers have found that traffic moves smoothly in, out, and around the finished loop, just as the planners said it would. The final connection to Route 309 will open soon.
I have to admit that I was skeptical of the original plan, having suffered through New Jersey circle-itis. But the new smaller, slow-speed versions have been springing up around the country, and throughout Europe, as a more efficient alternative to traffic lights and stop signs. Supervisors Rick Orloff and Steve Tamburri, and particularly former supervisor Pat Keller, should be commended (at least so far) for having the vision to be innovators.