BEFORE THE SUPREME COURT OF THE UNITED STATES
In September, 2020, we filed a Writ of Certiorari with SCOTUS. That's a request for review of the lower court decision. On January 8, 2021, the Justices will review the new crop of requests. On that day they can deny without comment, accept the case for review or table it for later. It takes a yes vote for the case to be accepted for review.
Scroll down to Proceedings and Orders. You can click on the Petition and each of the answer briefs and the two amici briefs.
Our initial brief was filed on Sept 10, 2020.
On Oct 10 2020, a joint amicus (friend of the court) brief was filed on our behalf by the Cato Instituted, the Institute for Justice, and Protect the Protesters.
On Oct 14, 2020 a amicus brief was filed by a group of environmental organizations, mostly from Florida.
On Nov 13, 2020, Lake Point filed their answer brief.
On Dec 2,2020, we filed our reply.
Except for the Lake Point brief, you will find the documents surprisingly readable.
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.
The lower court took my statement out of context and found me guilty for something I did not say. What I said, even out of context, had no relation to the harm that Lake Point claimed was done to them by the County.
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.
THE FIRST AMICUS
Three entities joined in this amicus: The Cato Institute, The Institute for Justice and Protect the Protesters.
The latter includes : Climate Defense Project, Earth Justice, Earth Rights International, Electronic Frontier Foundation, First Amendment Project, Freedom of the Press Foundation, Greenpeace, Human Rights Watch, International Corporate Accountability Roundtable, Mosquito Fleet, National Lawyers Guild, NRDC (National Resources Defense Council), Palestine Legal, Portland Rising Tide, Public Citizen, Publish What You Pay, Rainforest Action Network, Sierra Club, Union of Concerned Scientist, 350, Amazon Watch, ACLU, Amnesty International, Business and Human Rights Resource Center, Center for Constitutional Rights, Center for International Environmental Law, Civil Liberties Defense Center.
The diversity of this group clearly demonstrates the importance of this case. They have been on different sides of many different issues, but they are all concerned about their right to be heard.
The brief explains that existing Supreme Court precedent 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.
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. That when a third party is harmed by government, the proper response is to sue government.
THE SECOND AMICUS
was filed on behalf of the Florida Wildlife Federation, Bullugar.Org, the Conservation Alliance of Martin County, the Conservation Alliance of St. Lucie County, Friends of the Everglades, Marine Resources Council of East Florida, Small World Adventures LLC, the Pegasus Foundation, and Waterkeepers, Florida.
This brief emphasizes the fact that the precedent set by the lower court and defended by Lake Point would make it impossible to safely discuss or argue about any scientific or environmental issue in a public hearing.
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.
LAKE POINT'S ANSWER BRIEF
Their brief insists that there is no need for "clear and convincing evidence" in order to find a speaker financially liable. The brief is largely devoted to speculating, without actual evidence, that I am a malicious person who dedicated my life to destroying Lake Point. Many of their statements are not accurate and are not supported by evidence in the record. Most of the brief is dedicated to irrelevant arguments that do not address the question posed in the writ of certiorari: should you be convicted of a statement taken out of context when all of the evidence produced at trial shows you believed it to be true? Should you be convicted of causing harm when the evidence produced at trial uncontestedly demonstrates that what the government did was not caused by what you said? Having made their irrelevant arguments as complicated as possible, Lake Point then argue that SCOTUS should not review the case because it is too complicated.
OUR FINAL RESPONSE BRIEF
Our final response brief speaks for itself. It is not complicated. It's only 12 pages. It's worth reading. It points out that facts matter.
A. The Court Ignored Critical Context Showing Ms. Hurchalla’s Statement Was True.
B. Alternatively, The Court Failed To Credit That Ms. Hurchalla’s Statement Was Unverifiable Or Ambiguous.
C. Court Disregarded Uncontroverted Evidence That Ms. Hurchalla Believed Her Statement.
D. There Is No Evidence That Ms. Hurchalla’s Statement Caused The Alleged Breaches.
Supreme Court of the United States
Petitioner, LAKE POINT PHASE I, LLC & LAKE POINT PHASE II,
ON PETITION FOR A WRIT OF CERTIORARI TO THE FOURTH DISTRICT COURT OF APPEAL OF FLORIDA
PETITION FOR A WRIT OF CERTIORARI
VIRGINIA P. SHERLOCK HOWARD K. HEIMS LITTMAN, SHERLOCK &
HEIMS, P.A. Suite 5
618 Southeast Ocean Blvd. Stuart, FL 34994
ENRIQUE D. ARANA RACHEL OOSTENDORP CARLTON FIELDS, P.A. Suite 4200, Miami Tower 100 Southeast Second St. Miami, FL 33131
JAMIE S. GORELICK
Counsel of Record
DAVID W. OGDEN
DAVID M. LEHN
SPENCER L. TODD
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW Washington, DC 20006