In another case, the Boswell Corporation, the biggest cotton grower in the country, unsuccessfully sued three farmers for libel after they ran an ad in The Bakersfield Californian urging support for an irrigation project and questioning Boswell's motives for opposing the project. The farmers countersued, arguing that Boswell's suit was not based upon a belief that the corporation had been libeled, but it was intended to chill political debate in opposition to Boswell's opinion. A jury awarded the farmers $13.5 million.
As a result of these awards, it is Canan and Pring's opinion that attorneys for plaintiffs bringing SLAPPs who do not warn their clients in advance of the SLAPP-back risk "may now be courting a malpractice action or grievance filing. Conversely, overly defense-oriented target attorneys who fail to advise their clients of this post-dismissal remedy (or fail to engage or consult a plaintiff personal injury specialist) may be facing ethical exposure as well."
Pace law professor John Humbach, a specialist in property rights, pointed out that "there is no constitutional right to develop land. New construction can be channeled to places that are suitable for it and away from places that are not."
As might be expected, some lawyers object to the term SLAPP. "I find the acronym offensive," says Joshua J. Grauer of Cuddy and Feder, a White Plains firm. Grauer has filed a suit on behalf of a developer regarding what is known as the Jay Property. This case, which is pending, is of particular historical, environmental and legal interest. The 23-acre site in Rye was the boyhood home of John Jay, who, with Alexander Hamilton and James Madison, wrote The Federalist Papers. Later Jay became the first Chief Justice of the U.S. Supreme Court.
The land parcel, which includes a house built in 1838 by Jay's son, Peter, and a carriage house, offers vistas of Long Island Sound. It also serves as a source of fresh water for the adjacent 137-acre Marshlands Conservancy, which harbors the last viable salt marsh on the Westchester County shoreline. In 1983, Diane Millstein, general partner of DGM Partners-Rye, bought the Jay Property for $1,075 million, planning to build luxury single-family houses. The land was still undeveloped three years later when an alliance of local, county and state civic, historical and environmental groups calling itself the Jay Coalition was formed to urge for the preservation of the property. In December 1986, with pledges of money coming from New York State, Westchester County, the Trust for Public Land and private funding, DGM Partners-Rye was offered $6.25 million for the Jay Property. The offer was turned down.
The Jay Coalition then began pressuring for the land to be acquired by the state or the county via right of eminent domain. In September of last year, the Westchester County Board of Legislators voted to acquire the land. Two months later DGM Partners-Rye sued county executive Andrew P. O'Rourke and other public officials along with several environmentalists.
Among the latter were Kornreich, who serves on the executive committee of the coalition, and Crean, president of an organization called Friends of Marshlands. The suit, which was filed in U.S. district court, asks for $30 million in damages, alleging that the combined activities of all the defendants deprived DGM Partners-Rye of personal and property rights guaranteed by the U.S. Constitution.
But Kornreich says, "It's our civil rights that are being threatened because we participated in the process of government review, and we petitioned the government to buy the property or condemn it. The fear that you have is not damages—we've done nothing wrong—the fear is the expense of your defense, the fear of realizing as an American citizen how fragile your First Amendment rights are. For a law firm to abuse the legal process is a horror. It's a form of terrorism."
Adds Crean, "It's not right for people to use the law as a cudgel, but this will not affect anything I say or do. We have always said that government should remunerate DGM Partners-Rye for the fair value of the property. I've done nothing libelous, scandalous or anything I should be ashamed of. I'm just an ordinary citizen; I go to work every day. I worry about paying bills. I'm no Cesar Chavez. I'm just Josephine Average. By filing SLAPP suits, people with the wherewithal can stifle small groups. Now what I write in a newsletter gets pored over by a battery of attorneys. It's ironic that we are defending John Jay, who defended the rule of law."
For his part, Grauer says, "Private parties who act in concert with governmental officials to deny constitutional rights are accountable under the Civil Rights Act. The complaint alleges a taking of private property, under color of state law, without compensation—a substantial federal question under the just compensation and due process clauses of the Fifth and 14th Amendments. DGM Partners-Rye has every lawful right to pursue such claims and will not be intimidated by the use of an offensive acronym such as 'SLAPP suits,' created solely to discourage adjudication of legitimate constitutional claims."