Letter to the editor could cost Oregon land-use critic $500,000

Thursday, July 23, 1998

Mary McKay, a longtime resident of St. Paul, Ore., voiced concern about a couple's attempt to develop local land in a letter to the editor last November.

That letter to the editor, which appeared in The Graphic of Newberg, could end up costing McKay $500,000.

Among other charges in the letter, McKay claimed the developers used “frivolous legal maneuvers” against the city and said that their building-permit checks were returned.

In a lawsuit filed against McKay in December, Daniel M. and Jennifer P. Smith claim that the “letter was defamatory and libeled (the Smiths) by making one or more false statements … that would tend to diminish the esteem, respect, goodwill or confidence in which they are held by the community and would tend to subject the plaintiffs to ridicule, contempt, hatred or damage to their reputation in their community.”

The outcome of Smith v. McKay will be closely watched not only in Oregon, but by businesses, citizens' rights groups, community activists and First Amendment advocates nationwide. Some say that the Smiths have been defamed. Others say this is yet another attempt to muzzle speech with a Strategic Lawsuit Against Public Participation, commonly known as a SLAPP suit.

The matter is now before the Yamhill County court system. According to McKay's lawyer, Ken L. Ammann of Salem, no trial date has been set.

Ammann said: “To say the letter defamed them is inaccurate. It's difficult for Mary, a person who cares about her community (a small farming town 25 miles south of Portland) and who is active in local affairs to not be able to write a letter to the editor.”

SLAPPs “generally and obviously have a very chilling effect, and it's unfortunate that this is a tactic being used,” Ammann said.

Richard S. Yugler, a Portland-based attorney representing the Smiths, did not return phone calls.

Yugler, however, recently told the McMinnville News Register: “It's not a SLAPP suit. It's not about keeping her quiet. We offered to dismiss the suit if she would give Mr. and Mrs. Smith an apology. It's not about keeping anybody quiet about speaking the truth. It's about statements we contend were falsely made.”

Steve Bagwell, managing editor of the News Register said: “This case caught our attention just because there are large implications. Anytime someone is suing over letters to the editors, we need to be paying attention.

“This is something every newspaper should be extremely concerned about,” Bagwell said. “It could have a real chilling effect on newsgathering as well as free expression and public policy central to debates. In a democracy, we have to be able to voice our opinions in a free marketplace in order for this system to function.”

SLAPPs “seem to be an increasing temptation,” Bagwell said. “And, as in this case, they seem to work. It's one thing for a citizen to feel strongly or passionate about an issue. It's another thing to have to face and fight lawsuits” for expressing those beliefs.

Robert D. Richards, associate professor of Journalism and Law at Pennsylvania State University and founding director of the Pennsylvania Center for the First Amendment, discussed SLAPP litigation in his most recent book: Freedom's Voice: The Perilous Present and Uncertain Future of the First Amendment.

Richards said: “The St. Paul case has the essential ingredients of a SLAPP. It also demonstrates the importance of having anti-SLAPP laws in the states. If Oregon had an anti-SLAPP statute, the case would most likely be over now, and the defendants might well be able to recoup their attorneys fees.

“The real threat of SLAPP comes in the form of protracted litigation. As a case is allowed to go forward, attorneys fees continue to mount. Further, the defendants have to suffer through the
litigation process and the resultant financial and emotional burden,” Richards said.

Jeffrey R. Lamb heads a statewide, grassroots coalition of Oregon communities that advocate citizens' rights to participate in land-use decisions. He said that Members of Oregon Communities For a Voice in Annexations, based in Philomath, are working with state lawmakers to develop an anti-SLAPP measure and hope to have it introduced it in the next legislative session.

The Citizen Participation in Government Act of 1999 would “give citizens regress to get damages when it's proved someone put a SLAPP on them to silence them,” Lamb said.

“The entire legal system is being perverted and the whole concept of free speech is being attacked,” he said. “This is contrary to a free and open democratic society.

“In order to have citizen involvement (there must be) a free and open environment in which the public feels they can participate.”

If the anti-SLAPP legislation is passed, citizens such as McKay would be immune from civil liability.

The measure reads: “If a SLAPP suit is dismissed, the court shall make the person who filed the suit responsible for costs of litigation, including reasonable fees for attorneys and expert witnesses.”

“The nature of SLAPP suits is that you terrorize people and a lot of people don't have the deep pockets” to defend themselves, Lamb said. “If someone dumps poison in the environment, the industry wins by default. That phenomenon is very well alive in this country.”