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It was the winter of 2003, and tempers were running high in Oakville, Miss. On one side was Fred Weber Inc., the biggest highway construction company in the state and owner of rock quarries and a trash-disposal service. On the other side were some residents of Oakville, who didn't like the idea of Weber opening a trash collection station that would handle 500 tons of garbage in their small community.

Things got nasty in early December, when the St. Louis County Department of Health held a public hearing on whether to approve Weber's zoning application. Several people began distributing a flyer around the meeting bearing the headline "Stop Fred Weber Inc." The flyer read, "three things you can do to fight the trash terrorists."

Weber didn't like the name calling, and on Dec. 23, filed a $5 million defamation suit against Tom Diehl, a protest leader who was allegedly responsible for the flyer.

Diehl says the suit is groundless and the company simply is trying to cow activists into silence. The case raises important questions about free speech and the public's right to participate in the political process.

"This suit is a dagger at the throat of free speech," says Jerry Wamser, one of Diehl's lead attorneys. "It's hard enough to get ordinary citizens involved in community decisions--much less when there is the risk of this kind of staggering liability."

But one of Weber's attorneys, Gary Feder of St. Louis-based Husch & Eppenberger, sees another vital issue at stake: a business' right to protect its good name. Unless Weber is allowed to protect itself, he warns, "whenever someone seeks a government permit for something, the proponent opens itself to all kinds of attacks. ... All the rules of libel and slander will drop out."

The case is part of a larger trend of companies bringing defamation suits against their vocal political opponents. Such suits are often called SLAPP suits--short for Strategic Lawsuits Against Public Participation. And the ruling in this case may decide whether businesses can effectively silence their detractors in Missouri.

Trash Talking

Weber's lawsuit has taken a quick--and rare--route to the state's Court of Appeals. Before discovery had gotten underway, Diehl asked the trial court to dismiss the suit. He argued the complaint failed to state a viable claim for defamation.

The trial court denied Diehl's motion to dismiss on June 29, 2004. One month later, Diehl filed an unusual emergency motion with the court of appeals, requesting a preliminary writ of prohibition. The appellate court granted the writ on July 30, 2004, thus prohibiting the lower court from proceeding any further in the case. On Dec. 13, the court heard oral arguments about making the writ permanent, which would effectively end Weber's suit.

Writs of prohibition rarely are granted, and Weber officials have argued that granting the writ in this case would not just deprive the company of its day in court; it would also create a terrible precedent.

"If this preliminary writ is made permanent, any lawsuit in Missouri where a claim of libel or slander is made, and the defendant tries to get the suit dismissed, will go on emergency writ to the court of appeal," Feder says. "It opens up a whole new body of law in area of libel and slander."

However, Diehl argues that the writ is an appropriate remedy because Weber has no legal basis for saying that it was defamed by the phrase "trash terrorist."

"It was hyperbole, part of a political discussion," Wamser says. "It was an opinion that is not actionable under defamation law and that is protected by the First Amendment."

Diehl claims Weber's real motive for the suit is to scare him and the company's other political opponents into silence.

"You don't bring a $ 5 million lawsuit against a citizen without a manifest intention to shut that person up," Wamser says. "This is a classic SLAPP suit."

A SLAPP In The Face

In a SLAPP suit, a large company brings a dubious lawsuit against its political opponents to intimidate and harass them, knowing that private citizens have neither the time nor the money to easily fight the lawsuit in court. Weber vehemently denies this is such a suit.

"In a SLAPP suit, when someone speaks out in political opposition, you almost always have an immediate response in court," Feder says. "Here, Diehl has been opposing the trash transfer station for over a year."

Whatever Weber's motives, its lawsuit has had the effect of silencing opposition to the trash transfer station. After the

people in Oakville learned about the suit, many residents stopped complaining about Weber's proposal, according to Bruce Morrison, general counsel for Great Rivers Environmental Law Center in

St. Louis, a public interest non-profit that has been providing legal advice to Oakville residents on how to oppose the trash transfer station.

"Communications from residents have really dropped off," Morrison says. "One person who was a leader said that people were afraid of being sued. They really did run off and hide."

The court of appeals' ruling--no matter what it is--seems unlikely to end the litigation. Both sides expect the ruling to be appealed to the Missouri Supreme Court.

However, even if Weber wins the battle over the trash station, the company may wind up losing far more than it gains. The lawsuit against Diehl has created a PR disaster for Weber--and for business in general. "Weber has done a tremendous disservice to the business community, appearing like an arrogant bully," says Wamser.

It's something that other companies who are considering suits against their critics may want to keep in mind.

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Steven Seidenberg

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