October 17, 2020

WE HAVE NOW FILED A REQUEST FOR REVIEW WITH THE US SUPREME COURT
Click here for the court website that shows every action and every brief in the case.

PETITION FOR WRIT OF CERTIORARI
This is our request for court review filed Sept 10, 2020.

With specific details from evidence in the court record and references to court precedent, the brief lays out a compelling case that if the Supreme Court does overrule the precedent set by the Appeals Court decision, it will nullify the First Amendment protections that we all thought we had.

QUESTIONS PRESENTED
Where a person speaks to a government official on a matter of public concern, and a subsequent governmental action regarding that matter harms a third party, whether a tort award against the speaker and in favor of the third party violates the Free Speech or Petition Clause of the First Amendment to the U.S. Constitution when the statement could reasonably be construed as a verifiable and true assertion or as an unverifiable opinion, when the speaker genuinely believed the statement, and when there is no evidence that the statement caused the adverse governmental action.

I. THE FIRST AMENDMENT PROTECTS MS. HURCHALLA’S STATEMENT BECAUSE, READ IN CONTEXT, IT WAS TRUE OR UNVERIFIABLE AND SHE BELIEVED
A. The Court Below Erroneously Interpreted Ms. Hurchalla’s Statement Without Accounting For Its Context
B. The Court Below Erroneously Deemed Ms. Hurchalla’s Statement To Be A Verifiable Factual Statement
C. The Court Below Incorrectly Disregarded The Evidence That Ms. Hurchalla Subjectively Believed Her Statement To Be True

II. THE FIRST AMENDMENT PROTECTS MS. HURCHALLA’S STATEMENT BECAUSE IT HAD NO CAUSAL CONNECTION TO THE COUNTY’S ALLEGED CONTRACT BREACHES

III. THE QUESTION PRESENTED IS IMPORTANT
The gravity of this case cannot be overstated...with the possibility of massive tort liability, citizens simply will not speak. The decision below will not chill speech; it will freeze it.

In simpler language, if a person can be convicted for something they did not say that did not cause the government action, then it is not safe to communicate in any way with your public officials and our participatory democracy is in serious trouble.
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THE FIRST AMICUS
This friend of the court brief was filed jointly on Oct 10,2020 by Protect the Protesters, The Cato Institute, and the Institute of Justice.
Click here to read the brief

"The brief points out that existing Supreme Court precedents in Noerr-Pennington holds that the Petition Clause in the First Amendment "provides a sweeping protective immunity for communications to influence public officials regardless of intent or purpose – even if improper means, deception, or dishonesty are used – if the communications are aimed at procuring favorable government action. Courts have almost unanimously determined that the doctrine applies against tortious interference claims.
They point out that SLAPP suits (Strategic Lawsuits Against Public Participation) are expanding as a way to silence dissent and that Lake Point is a perfect example of a SLAPP suit which attempts to use tortious interference to trump the First Amendment. This brief concludes that:

"SLAPP suits pose particular dangers not only to the individuals and organizations they target, but also to our society, to human rights, and to the rule of law.

The brief further presents citations to demonstrate that, when a third party believes it is hurt by a government action, the proper remedy is to sue government, not those who tried to influence the government action.

THE BRIEF
QUESTIONS PRESENTED
Petitioner Maggy Hurchalla, a Florida environmentalist, was hit with a $4.4 million jury verdict for tortious interference for emailing her county commissioners about a mining project, after which those commissioners found violations on the project. The Florida Fourth District Court of Appeals found this verdict to be sustainable on the basis of a single email that made arguably false statements about the project, although the court did not suggest these statements were defamatory. The court below noted that the Respondent had “alleged” that the email caused the county to breach its agreements regarding the project, but it did not discuss any evidence that supported this allegation. Amici curiae believe the questions presented, which is encompassed by the question articulated by Petitioner, is:

Does the Petition Clause of the First Amendment permit suits for tortious interference based on statements made by citizens to elected officials?

I. THE NOERR-PENNINGTON DOCTRINE PROTECTS AGAINST LIABILITY FOR TORTIOUS INTERFERENCE.
a. The opinion below diverges from the clear trend of applying the Noerr-Pennington doctrine to immunize petitioning activity from tortious interference liability.

II. LAKE POINT’S BUSINESS TORT SUIT IS A QUINTESSENTIAL SLAPP.
a. Amici have substantial experience with SLAPPs.

b. SLAPPs frequently masquerade as business torts

c. The business tort suit brought by Lake Point is a quintessential SLAPP.

III. THE LOWER COURT’S DECISION WILL CHILL PROTECTED SPEECH.

CONCLUSION
Amici respectfully urge the Court to grant certiorari and reverse the decision below. The Fourth District Court of Appeals’s decision is so far outside the accepted application of the Noerr-Pennington doctrine, as expressed in a nearly unbroken line of federal and state appellate decision, that summary reversal may be called for here.

In simple language, everyone on every side of every public argument has a stake in the outcome of this case.

Protect the Protesters: protecttheprotest.org
The Cato Institute: www.cato.org
The Institute for Justice: https://ij.org/

____________________________________________________ 
THE SECOND AMICUS:
This was filed on Oct 14, 2020 on behalf of Bullsugar.org, Conservation Alliance of St. Lucie County, Florida Wildlife Federation, Friends of the Everglades, Marine Resources Council of East Florida, Martin County Conservation Alliance, Small World Adventures, LLC, the Pegasus Foundation and Waterkeepers, Florida 

The second amicus from a group of Florida environmental organizations emphasized the fact that the precedent set by the lower court would make it impossible for anyone to safely argue with government officials over controversial scientific issues.
Click here to read the second Amicus brief.

The amicus brief emphasizes the importance of continuing input on complex unresolved issues.

"If citizens can be liable for actionable “falsehoods” for their good faith, debatable statements about complex, scientific issues, legitimate citizen input and participation in government environmental and human health decisions will cease. The exercise of First Amendment rights will be unavailable to most citizens."

It also points out that the court's justification for removing First Amendment protection were irrelevant.

THE BRIEF

THE QUESTION
The Court should grant certiorari to remedy the court’s error in failing to distinguish between debatable statements about scientific conclusions and those concerning objectively verifiable facts. Statements about whether a study is adequate to document a conclusion (in this case whether a proposed mining pit would benefit the environment) are of an inherently different character than those “facts” which are, by their nature, “objectively verifiable.”

The Court should grant certiorari to address the state court’s rulings that label improper and malicious methods and circumstances of public speech that are common and necessary to the exercise of First Amendment rights relative to such matters. The Court should address whether a citizen with superior knowledge of complex issues acts improperly when asserting her views.

I. THE COURT SHOULD GRANT CERTIORARI TO RECOGNIZE THE INHERENTLY DEBATABLE NATURE OF SCIENTIFIC CONCLUSIONS
a. The State Court Failed to Recognize the Complex, Opinion-Based Nature of Scientific / Environmental Facts.

b.  Due to Their Inherently Uncertain and Debatable Nature, Good Faith Statements Regarding Disputed Scientific Conclusions of Public Concern Cannot Constitute Tortious Falsehoods. p11

c. The Modes of Communication the State Court Deemed Improper Are W holly Legitimate, Necessary and Protected, Methods of Petition Concerning Environmental Conclusions (too knowledgeable, should not encourage officials to express her views,

d.  Citizen speech on Scientific and Environmental Matters is Essential to Adopting and Implementing Public Policy.

CONCLUSION
The Court should grant certiorari to remedy the court’s error in failing to distinguish between debatable statements about scientific conclusions. Subjecting statements like those concerning objectively verifiable facts.
Subjecting statements like Hurchalla’s to tort liability will effectively end citizen advocacy, causing an appalling and unconstitutional imbalance of speech in government decision making on matters of crucial impact on the public’s health, safety and welfare.  

In simple language, the lower court should not have accepted Lake Point's contention that my email to commissioners was improper because I was "influential" and some of the commissioners were friends of mine. Barring threats of violence or promises of bribes, it doesn't matter who you are or who you know or how you communicate with your officials. 
Most importantly, the court should understand that scientific issues of public policy are based on continuing input from all sides, not on a simple true or false decision.
Should a solar company be able to sue an oil company for tortious interference for telling Congress that the benefits of solar power have not been documented?
Should residents at a zoning hearing who complain that the benefits of a zoning change that disrupts their neighborhood have not been documented be liable for damages if sued by the developer?
In issues of climate change, should both sides be able to sue the other for saying that the benefits of their position have not been documented?
In the debate over wearing masks, should both sides be able to sue each other for claiming that the benefits of the other side's position have not been documented?


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WHAT HAPPENS NEXT?
 
We have filed our petition for review by the US Supreme Court. Lake Point has asked for an extension to answer. Their brief is due Nov. 13, 2020. We will have until December 1 (no extensions allowed) to file a reply. Briefs would be forwarded to the justices on December 2, 2020 for consideration in conference on January 8, 2021. 
Then we wait an indefinite time.
It's a long shot. The Supreme Court gets 100s of cases submitted and accepts very few.
But if no one risks losing, we all lose.
I'm heartened by the fact that our first amicus shows that all sides of the political spectrum agree:
That SLAPP suits are a danger to democracy.
That Lake Point is a perfect ugly example of a SLAPP suit.
And that all of us have the right to tell our government what to do without having to establish beforehand that every word we say is uncontested truth and that our hearts are pure.

If we lose that argument, I can't get Christmas presents or buy a new car or kayak, but I will be ok. We don't have debtors' prisons.
The First Amendment will not.

Maggy

For more details and the history of the case, see www.slappmaggy.com

Legal defense donations are appreciated.

Thank you,

Maggy Reno Hurchalla

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Or mail a check to:
Maggy’s SLAPP-Back Fund,
PO Box 891, Stuart, FL 34995