SLAPPed around

An environmentalist refuses to be sued silent

by Bill Rodriguez

Nancy Hsu Fleming of North Kingstown never marched in a protest to save the environment or even the whales. Nevertheless, when she got involved in trying to stop a nearby landfill from polluting her well water, she got involved but good.

So good that on Monday, April 14, she received the prestigious PEN/Newman's Own First Amendment Award from PEN/America, an international literary group, at the Lincoln Center in New York. With $25,000 attached to it, the annual prize is certainly the most profitable for social activists.

As "awed" as she was by the gala banquet (Mia Farrow came over to congratulate her, and Paul Newman sat next to her at dinner), Fleming says her most significant moment was her acceptance speech. Then she got to do a little consciousness-raising among celebrities about the issue of SLAPP suits. (The acronym stands for Strategic Lawsuit Against Public Participation.)

"I told them that what SLAPP suits do is remove an issue from the political forum, where it belongs [and] can be debated, and transport the issue to the legal arena, where it becomes a private matter," Fleming said the next morning.

Kathleen Sullivan, a professor of constitutional law at the Standard University School of Law, was one of the jurors for the First Amendment award, along with authors E.L. Doctorow and Grace Paley. Contacted by the Phoenix last week, Sullivan said the first reason Fleming was selected was her courage.

"It takes a lot of guts to stand up to powerful forces seeking to keep the written word quiet," she said. "The second reason is that her actions illustrate an important point that's often forgotten, and that is that a lawsuit can be a powerful tool for censorship.

"We usually think of censorship as just the coercive hand of the government, the sheriff throwing the writer in jail," says Sullivan. "But censorship can also come through civil lawsuits."

What brought Fleming, who describes herself as a "very private person," into the public eye was a lawsuit filed against her over a letter she wrote to the Rhode Island Department of Environmental Management. In it, Fleming suggested that the privately owned construction and demolition landfill next to her house should be "closed and cleaned up."

At the time, Fleming had been responding to a DEM official's request to put her case in writing as part of the department's public comment phase.

The resulting lawsuit against Fleming eventually caught the eye of the PEN/America committee and resulted in two state laws tailored to throw out harassment cases like hers.

Last summer, Fleming's victory was complete when the Rhode Island Supreme Court ruled that these newly adopted laws applied to her case, which consequently was dismissed.

Toughest laws in the country

Today, Rhode Island's anti-SLAPP statute is one of the strongest of those enacted in 10 states, including Massachusetts and California, in the last eight years.

Why would anyone need a law to protect their right to petition a zoning board against a developer or to join a campaign to stop a highway? The epigram-brief First Amendment would cover that, you'd think.

Think again. Without an anti-SLAPP law to nip a proposed lawsuit in the judicial bud, a flimsy nuisance tort can be filed for no other purpose than to quiet opponents of, say, a mall project and to intimidate those left to pick up the placards.

By simply crying "Defamation!" and taking the offensive ("We're shocked, shocked, that there is pollution going on here!"), lawyers can turn the issue into a private dispute rather than a matter of public debate. And often they can get a judge to agree with them, as initially happened in the Fleming case.

According to SLAPPs: Getting Sued for Speaking Out, a comprehensive book on the subject published last year, thousands have been sued silent after complaining to school boards about poor teachers, reporting health code violations to authorities, etc. Others have lost their homes and life savings in protracted nuisance suits averaging 40 months to resolve, say the book's authors, lawyer George W. Pring and sociologist Penelope Canan.

Supreme justice

That was the situation Fleming faced in her SLAPP suit. Over a cup of cocoa in a Narragansett coffeehouse the weekend before the PEN award ceremony, she understandably looked pleased by the wider appreciation her long struggle had gained.

At age 17, Fleming had immigrated from Taiwan to San Francisco and soon learned to take basic freedom of expression for granted. A North Kingstown Town Council meeting in 1992 changed that.

At the gathering, a woman had read aloud the test results of a monitor outside the dump, prompting Nancy and her husband, Chris, to wonder for the first time whether the landfill near their home was affecting their drinking water. They learned that the town's water was pumped from an aquifer beneath the dump.

That's when Fleming began asking questions, but state officials, she realized, didn't have the answers. They admitted they hadn't done much about the trace amounts of hazardous chemicals the monitor drilling had found. So Fleming did some more research.

She discovered that before the landfill was licensed to take in demolition debris, the federal Environmental Protection Agency had conducted an extensive study on the aquifer. "The hydrologist that did the study said he felt that the landfill should be closed," Fleming recalls. " `Site remediation' is how it's put."

Backing up this conclusion were several other reports to town officials -- and a contingent of worried neighbors, who ended up sitting down with then-DEM director Louise Durfee.

"When we were there, expressing our concerns, she said, `Well, we're looking at proposing some rules and regs which would protect the groundwater throughout the state. Would you folks take a look at this and give us some public comments?' " says Fleming.

So Fleming did, in a four-page, citation-packed letter in April 1992.

Hometown Properties and Homevest, which respectively own and operate the landfill on Dry Bridge Road, subsequently sued her for defamation the following December. Developer and one-time congressional candidate Charles H. Gifford III was one of the principals, along with Edward B. Mancini and Michael L. Baker.

According to their lawsuit, Fleming's purported defamation in the correspondence consisted of quoted findings from government reports. Fleming said, for instance, that the landfill was "on track to being declared a Superfund site" and that the EPA had found that the landfill "contains hazardous waste."

"This suit was not intended to win," says Fleming. "It was intended to instill fear . . . and to silence public participation."

But just because a suit is a nuisance and not designed to succeed in court doesn't mean it just goes away. In fact, Fleming's first request to have the suit thrown out of Superior Court on a summary judgment was denied. And even the efforts of the state chapter of the American Civil Liberties Union weren't enough to stop the legal harassment juggernaut.

But then the state legislature stepped in and passed a statute designed to shield citizens from the "disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights," in the words of its introduction.

In read-my-lips detail, the law spells out Rhode Islanders' freedom, as the Bill of Rights puts it, "to petition the government for a redress of grievances." It is designed to get cases against government petitioners dismissed early in the legal process, before lawyers' fees accumulate.

After a Superior Court judge ruled in August 1994 that the anti-SLAPP law specifically designed for Fleming did not apply to her case, the initial statute was made even stronger with an amendment that specifically protected the right to petition before zoning hearings. It was passed over the veto of Governor Lincoln Almond, a former federal prosecutor.

This set the groundwork for June of last year, when the Rhode Island Supreme Court ruled unanimously that the legal action against Fleming did indeed fit the anti-SLAPP laws tailored for her. The suit was thrown out, and the plaintiffs were awarded lawyer fees and court costs of nearly $35,000.

But the victory was not completely one-sided. "In some ways, the plaintiffs got what they wanted. They silenced Nancy for four years," Amelia E. Edwards, Fleming's ACLU pro bono lawyer, told the American Bar Association's ABA Journal in a cover story on SLAPP suits.

As Fleming puts it, "What's $35,000? Office expenses."

As for the landfill that stirred up all this hoopla over the First Amendment, it is still open for business. In fact, the owners have received permission to expand the height of the site to 50 feet.