Breaking News: Justice in Court

Historic Win for Animals, Advocacy and Freedom of Speech!

A HORSE CARRIAGE COMPANY’S LAWSUIT AGAINST ANIMAL ADVOCATES COLLAPSES IN COURT.

By JOE ELMORE, CAWA, CFRE

Charleston Animal Society and other animal advocacy organizations and individuals won a major lawsuit brought against them to intimidate and stifle their efforts to bring humane reform to Charleston’s carriage tourist attraction. This was a win for animals, advocacy and freedom of speech!

It all started nearly four years ago, when a carriage horse, “Big John,” collapsed during a tour in Downtown Charleston. Charleston Animal Society created a video of the incident comprised of footage it received from eyewitnesses as part of its advocacy efforts to make working conditions for the carriage horses more humane, especially during the intense heat of summer. Charleston Carriage Works, which owned Big John, threatened to bring legal action if Charleston Animal Society did not retract the video. The video remains on Charleston Animal Society’s YouTube channel and has more than 66,000 views.

A year later, the carriage company brought a lawsuit against Charleston Animal Society, Charleston Carriage Horse Advocates and Ellen Harley claiming, amongst other things, that the use of the word “collapse” in the video was defamatory. The Court disagreed, holding that the video “is a fundamental example of the type of public discourse protected by the

First Amendment.” The Court also determined, based on the carriage company owner’s testimony, that the use of the word “collapse” was not defamatory because it was “substantially true.”

This type of lawsuit is what is known as a “SLAPP” lawsuit - a Strategic

Lawsuit Against Public Participation, which is often used to intimidate

8 KEY TAKEAWAYS FROM COURT RULING

Plaintiff: Charleston Carriage Works, LLC Defendant: Charleston Animal Society, Charleston Carriage Horse Advocates and Ellen Harley

1“While Plaintiff has submitted affidavits in which it baldly claims that Defendants knew that the statements in the Big John video were false, those claims are not supported by admissible evidence…” 6 “As to the use of the word ‘collapse,’ Plaintiff bears the burden of presenting admissible evidence that the horse did not collapse. It has failed to do so. Rather, as discussed

2“Defendants would still be entitled to summary judgment because the speech addresses a matter of public concern and is protected by the First Amendment.” 3 “At the heart of the First Amendment’s protection is speech on matters of public concern.” 7 on the basis that it is substantially true.” “Plaintiff has produced no admissible evidence that Defendants published the Big “To the extent that the video implies that

4Plaintiff abuses its horses or treats them in an inhumane manner, such an implication is not actionable. These are matters of opinion not

8Specifically, Dan Riccio, the City of Charleston’s Director of Livability and Tourism, testified after viewing video footage of Plaintiff’s carriages running stop signs that capable of being proven to be false.” “Taken in its context, and with the immense

5public interest in Charleston’s carriage horses and, specifically, the Big John incident, the video is a fundamental example of the type of public COURT VICTORYdiscourse protected by the First Amendment.” below, the Court finds that Defendants are entitled to summary judgment on this claim John video, or any of the statements made therein, for the purpose of injuring Plaintiff.” “The evidence establishes that Plaintiff has, in fact, violated the law in its operations. this practice violated the City’s ordinances as well as state law.”

advocacy organizations, such as those advocating for civil rights, environmental and animal protection, women’s rights, and many more, into backing down from their advocacy efforts due to the legal costs of defending these types of claims. AntiSLAPP legislation has been enacted in 32 states, both conservative and liberal, in the United States. In fact, most of the southern states have anti-SLAPP laws. North Carolina and South Carolina do not. There have been efforts in the SC Legislature to ban these type of intimidation lawsuits, which are a threat to the First Amendment to the U.S. Constitution (learn more on page 20).

Not only did this lawsuit attempt to stop advocacy efforts for more humane working conditions in line with other cities across America, it was one of many tactics, including physical assault, threats, smear campaigns, and the misleading of public and elected officials, launched by the carriage tourist attraction industry to discredit and intimidate the advocacy organizations.

Charleston Animal Society was founded 148 years ago to prevent cruelty to animals like other animal organizations in that era, specifically working horses and livestock. Charleston Animal Society remains steadfast in its efforts to encourage more humane working conditions for the equines working in the stressful urban environment downtown, which the Animal Society considers the harshest working conditions of this kind in the country.

South Carolina Needs a

Good SLAPP Law By ERIC ROBINSON

MY TURN

In late May, the Judiciary Committee of the North Carolina State Assembly approved a legislative bill, which would allow for early dismissal of lawsuits making libel or other claims that are meant to shut down discussion of important public issues. The bill is now due to be considered by the

Assembly as a whole.

If North Carolina adopts the bill into law, it will become the 34th state to pass a so-called “Anti-SLAPP” statute. (The

District of Columbia also has such a law;

West Virginia has anti-SLAPP provisions via a court decision). These laws are called “anti-SLAPP” statutes because they prevent “SLAPPs,” an acronym for “strategic lawsuits against public participation.” These are lawsuits filed to intimidate and stop defendants from discussing matters of public interest, rather than seeking compensation for actual harm.

One such case was filed against a South

Carolina defendant in the 1980s. Animal rights activist Shirley McGreal, head of the International Primate Protection

League in Summerville, S.C., was sued for $4 million over a letter she wrote to the academic Journal of Medical Primatology protesting a drug company’s plans to use chimpanzees in hepatitis research. Her insurer settled the case against her—over her objection—for $100,000. Later, New York State’s highest court dismissed the case against the remaining defendant, the journal’s editor, on the grounds that the statements were protected by the First Amendment.

Anti-SLAPP statutes create a special motion to dismiss such lawsuits that the defendant shows are meant to stifle discussion of public issues. Claims in such lawsuits often include libel, interference with contractual relations and intentional infliction of emotional distress. In addition to protecting concerned citizens and public interest groups, in many states media organizations have successfully used anti-SLAPP statutes to get libel suits stemming from their coverage of public issues dismissed. Support for such bills ranges across the political spectrum, from the liberal-leaning American Civil Liberties Union to the conservative-leaning American Legislative Exchange Council. In 2020 the Uniform Law Commission produced a model Public Expression Protection Act that individual states can adopt in order to standardize the law across the U.S. The North Carolina bill is based on this model provision, as are anti-SLAPP laws enacted recently in Kentucky and Washington. Such a bill should also be seriously considered here in South Carolina. Such a bill was introduced in our legislature in 2003, 2009 and 2018, but never progressed past the House Judiciary Committee. The 2018 effort garnered support after a Mount Pleasant developer subpoenaed opponents of his proposed development, seeking their e-mail and other communications with local officials and with each other. But each of these bills died in the Assembly Judiciary Committee. South Carolina does have a law imposing sanctions on parties and attorneys for filing frivolous lawsuits, but whether a lawsuit is frivolous is different from whether the true purpose is to stifle speech. Also, such sanctions are rarely imposed. Protection of speech about public issues is an important First Amendment principle, and we should strengthen that protection by barring frivolous lawsuits that use the threat of litigation—and its inherent expenses and risks—to shut down legitimate discussion of public issues and controversies. South Carolina should bolster its protections for free speech by passing an anti-SLAPP statute in the near future.

This opinion piece was originally published in June 2022 by the South Carolina Press Association. Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant.