home > resources > archive ACLU Reporter: Summer 1998 Table of Contents: SLAPP Suits: South Jordan Activists Face a Unique Threat to their Right to Petition the Government Executive Director’s Report Intern Report Case Profile: Citizens of Nebo School District for Moral and Legal Values, et al v. Utah State Board of Education, et al Case Profile: Weaver v. Nebo School District, et al Alcohol Advertising: Utah Does Not Toast the First Amendment Student Report: The East High Gay/Straight Alliance _________________________ SLAPP Suits: South Jordan Activists Face a Unique Threat to their Right to Petition the Government By Cori Sutherland, Education/Development Director After learning that Anderson Development was proposing to build a large business park in the Jordan River Bottoms, South Jordan residents Janalee Tobias and Judy Feld began working to preserve the rural areas that would be affected. The two women formed the organization, Save our Open Space (SOS), and began attending the South Jordan City Council meetings to voice their opposition to the project. Unwilling to accept the City Council’s decisions as final, SOS also applied for a referendum petition to repeal project approvals. Our organization has been in touch with Tobias since last spring, when she participated in an ACLU panel to discuss the documentary, Waco: The Rules of Engagement. We were familiar with her efforts to preserve the Jordan River Bottoms, and were surprised when she called us in March to tell us that Anderson Development had filed a lawsuit seeking $1.7 million in damages from SOS. Brought by Gerald Anderson, the head of Anderson Development, the lawsuit claimed, among other things, that SOS had illegally tried to induce Jordan River Bottoms landowners to breach their contracts with his company. Initially, we didn’t think of Anderson’s suit as an ACLU issue. After all, it concerned a private development company rather than a government agency. In addition, the amount of monetary damages was mind-boggling, both for the ACLU and for SOS. While Tobias and Feld were involved in other court battles concerning the legality of their referendum application, they had never before been entangled in a suit such as Anderson’s. It became clear, however, that Anderson Development was suing Tobias and Feld because they had acted on their constitutional right to petition the government. A few days after Anderson filed the suit, The Salt Lake Tribune identified his claim as a SLAPP suit. SLAPP is an acronym for "strategic lawsuits against public participation," a relatively new form of litigation used by large companies to silence their critics. George Pring, a University of Denver law professor, and Penelope Canan, a University of Denver associate professor of sociology, have written about the characteristics of SLAPP suits, which they describe as, "an attempt to ‘privatize’ public debate." In other words, Anderson’s lawsuit shifted the debate from city council meetings to the courtroom, where a judge will rule on the legality of SOS’s activism, rather than on the initial issue of the development of the Jordan River Bottoms. Because of the large amount of money involved, it is very possible that the effect of such a suit will be to discourage public participation in government proceedings. It was precisely because Anderson’s suit had a chilling effect on Tobias’s and Feld’s activist efforts that Ross Anderson, a local civil rights attorney and former board president for the ACLU of Utah, became involved in their case. Indeed, across the country, ACLU affiliates have successfully defended individuals in various SLAPP suits. In Georgia, for example, the ACLU represented a non-profit women’s health organization in a lawsuit brought by a Georgia healthcare corporation. The corporation alleged that the advocacy group had conspired to commit deceptive trade practices by speaking out against one of their products, and had interfered with their business relations when it filed a petition with the FDA. In deciding a similar case last year in Rhode Island, a state superior court judge sided with the ACLU when she dismissed a lawsuit filed against a grass-roots environmental organization. There, the developer sued members of the organization for defamation for public comments they had made against his activities. In the vast majority of SLAPP suits, the plaintiffs request an extraordinary amount of money for damages resulting from the public actions of citizens’ groups. In an attempt to protect citizens’ First Amendment rights, several states have drafted legislation prohibiting this type of litigation. These laws include Washington State’s, which provides immunity to individuals who report violations of law to government authorities. Some areas even provide financial assistance for SLAPP defendants. Suffolk County, New York, for example, experimented briefly with the establishment of a legal defense fund for victims of SLAPP suits in county proceedings. Because such litigation undermines one of the fundamental principles of American government – namely, that democracy requires the active involvement, input, and consent of the public – SLAPP suits are an important issue for the American Civil Liberties Union. The fact that private companies are increasingly attempting to limit citizen involvement and stifle the speech of their critics is of great concern to our organization, and we will continue to look for ways to address the problem. _________________________ Executive Director’s Report By Carol Gnade How do you top the celebration of the fortieth anniversary of the ACLU of Utah, the only organization in this state that works solely to protect civil liberties? You bring into being an experienced staff, fantastic facilities, and relevant programs that take the organization into the next forty years – stronger, more experienced, and with an enhanced sense of direction. The growth of our organization allows us to think in a much more comprehensive and strategic way about the most vexing and disturbing trends confronting civil liberties today. Our new offices are spacious, comfortable, and they provide us with facilities that improve our efficiency. Most importantly, they provide us with a rich environment in which we can collaborate with many of our community allies to work on important civil liberties matters. We have opened up our new conference room to groups who work on similar issues, yet in the past, have not had adequate meeting space. As I reflect on the past seven years (my small part of the ACLU of Utah’s forty-year history), what was wishful thinking in 1991 has become a reality in 1998. In 1991 our staff consisted of an executive director and a half-time receptionist. We are now in the enviable position of having an executive director and three full time professional staff persons: Stephen Clark, Legal Director – Stephen comes to us with vast experience as a litigator, ACLU volunteer attorney, and Pittsburgh ACLU affiliate board member. Stephen will lead our Legal Department, enhance our legal education programs, and assist in our lobbying efforts. Cori Sutherland, Education and Development Director – Cori began working with the ACLU of Utah part-time in 1997. As an experienced organizer, activist, and educator, Cori is now a full-time staff member. Her new position will allow our organization to develop our publications and public education/outreach efforts to be more targeted and effective than in the past. Ronda Chapman, Administrative Associate - Ronda has been with our organization since the beginning of the year, and she provides invaluable assistance in managing the office, coordinating our intern/volunteer programs, and overseeing our complaint database. In addition, Ronda will also focus on community outreach in the prison and jails, and on law enforcement issues. All of us are committed to improving our communication with our members and supporters. But the foundation of your organization is the high quality and professionalism of our staff and programs. The bottom line is that the growth of our organization would not have happened without your support, and it cannot be maintained without you. Please help us keep the passion for civil liberties alive in Utah. And thank you, once again, for the past forty years. _________________________ Intern Report By Elizabeth Laney During Spring Quarter 1997, I enrolled in a course entitled "Constitutional Law" through the Honors Program at the University of Utah. I looked upon this course with dread and ignorance, as it was just another of the general university requirements I was trying to fulfill. I honestly felt that this class would have nothing to do with my major or my life, and (gasp) it was only offered on Thursday nights during Seinfeld. However, to my surprise, this class turned out to be one of the best courses I have ever taken while in college. The reason I was so afraid of this course was, honestly, that it intimidated me and I had no idea what it had to offer. The remarkable thing about this Constitutional Law class was that it sparked an interest that led me to the ACLU. In case after case, the ACLU came up as the "good guys." I honestly thought that this was a group that no one could ever disagree with. When I told people I was going to be an intern at the ACLU this quarter, I received various reactions from "Oh, dear Lord," to blank stares telling me that they had no idea what these letters stood for. I like to compare these people’s responses with the prejudices I held before my Constitutional Law class. I was quick to condemn it when I was uneducated about what the course had to offer. It has amazed me how many people do not know what the ACLU really does and how it affects their lives and their freedoms every day. Although my duties as an intern at the ACLU are fairly regimented, I feel that this internship has offered me the opportunity to let people know what the ACLU really does for them. Who knows, maybe they will start reading this newsletter during Seinfeld! _________________________ Intern Report By Colour Frazier I have always been interested in the rights of marginalized groups. Today, we as a society feel we are progressive and have modern ideas, and yet we continue to devalue difference. I hoped from the beginning that interning at the ACLU of Utah would help me better understand the dynamics of these issues and give me a more complete appreciation of the rights of all individuals. During the course of my internship, I have been able to see firsthand how the law works as well as our own important role of safeguarding our liberties. My experience with the prison and jails database gave me an entirely fresh perspective on our needs as a society, and it is an area that we will need to focus on in the future. Inmates enter jail as a form of punishment, and yet they come out no less likely to commit crimes in the future. I toured Davis County Jail, and the one thing I distinctly remember was the comment of one official who said the purpose of a jail is solely to hold criminals. There was no mention of intervening in order to stop future criminal behavior, but rather an immediate solution to a very long-term problem. I think that overall, I have gained a new perspective into the realty of our justice system as it now exists. I better appreciate the liberties I do have, while at the same time, I am angered at the indifference of our system to those who do not represent the status quo. _________________________ Case Profile: Citizens of Nebo School District for Moral and Legal Values, et al v. Utah State Board of Education, et al By Stephen Clark, ACLU of Utah Legal Director Note: For the first time ever, the American Civil Liberties Union of Utah is representing an individual as both a plaintiff and a defendant in two different lawsuits. Wendy Weaver, an experienced teacher employed by the Nebo School District, was required to sign away her First Amendment rights when school district officials learned she is a lesbian. In response to the district’s unconstitutional actions, we filed a lawsuit alleging violation of Wendy’s fundamental rights to freedom of speech, privacy, and Equal Protection. Two months later, Wendy was named a defendant in a lawsuit filed by a group of citizens from the Nebo School District. Because this suit was brought in response to our case, Weaver v. Nebo School District, et al, and involved the same constitutional issues, we felt it was important for us to defend Wendy from its groundless claims. Last December, a group of people calling themselves "Citizens of Nebo School District for Moral and Legal Values" filed an unusual lawsuit against the Utah State Board of Education, the Director of Professional Licensing for the State of Utah, and Wendy Weaver. The lawsuit is unusual because it seeks to circumvent normal administrative procedures and to invite the state court to make "declarations" – in truth, to render "advisory opinions" – on a number of matters that cannot properly be brought before the court. Apparently the plaintiffs are unhappy that Wendy has only been illegally disciplined. They want her fired and forever barred from practicing her profession, earning a living, and supporting her family. It is plain that, notwithstanding the plaintiffs’ moniker, the values reflected in their lawsuit – ignorance, prejudice, and a blatant disregard for fundamental constitutional rights – are neither moral nor legal. Weaver is the Spanish Fork High School teacher who, with the assistance of the ACLU of Utah, is challenging the unlawful "gag order" school administrators sought to impose after it became known that she is a lesbian. The plaintiffs are represented by Matthew Hilton, a lawyer from Spanish Fork who worked behind the scenes with Craig Taylor in drafting and pushing through the infamous school clubs and teacher conduct laws passed by the Utah legislature in 1996. Those laws purport to severely limit what teachers can do, both in and out of school. Relying on these vague laws and others, the plaintiffs claim that, by responding honestly to students’ questions and subsequently seeking to protect her constitutional rights in court, Weaver was "encouraging or supporting criminal behavior." They further claim that, by using standard psychological tests as a teaching tool in her AP Psychology class, Weaver was really trying to get her students to reveal information about their "sexual behavior, orientation, or attitudes." They even claim this conduct amounts to "practicing psychology without a license" – a felony punishable by up to five years in prison. Most outrageously, plaintiffs ask the court whether Weaver’s wholly innocuous conduct in hosting parties and other activities for her volleyball team during her long and successful stint as a volleyball coach constitute reportable "sexual abuse" or "child abuse" – felonies punishable by up to 15 years in prison. It is worth noting that until Wendy’s private life became public, no one ever complained of any misconduct. School officials have recently admitted under oath that they have no reason to believe Wendy ever did anything improper. As the new full-time lawyer for the ACLU, I am saddened that in their zeal to impose on everyone their own limited view of morality, the plaintiffs and their counsel would engage in such an abuse of the legal process and seek to destroy Wendy’s life and livelihood. But I am eager to defend Wendy as the very epitome of honesty, integrity, and the other values that she has exhibited throughout her career and in response to recent events in her life. I am also happy to report that Rick Van Wagoner, an attorney with the firm Snow, Christensen & Martineau, has agreed to act as ACLU of Utah cooperating attorney on the case – the first time for both Rick and his firm but, we hope, not the last. _________________________ Case Profile: Weaver v. Nebo School District, et al By Wendy Weaver and Rachael Smith Note: After the ACLU of Utah filed the case Weaver v. Nebo School District, et al, we received letters and phone calls from people who supported the lawsuit, and wondered how Wendy Weaver and her partner Rachael Smith were dealing with their sudden notoriety. As a response to their concerns, we asked Wendy and Rachael to talk about their experiences since Wendy became a plaintiff in this very visible lawsuit. The past year has been an eye-opening experience for my family and me. With the decision to be honest with myself and with others about my sexual orientation, I have felt much peace and fulfillment in my personal life. What I didn’t anticipate is how some others would feel about my personal decision. I really had no understanding as to how other homosexual teachers and public servants have been treated over the years. I had never felt discrimination in my life, until now. I really don’t think it was much of a choice to fight for the same rights that we all enjoy and take for granted. I certainly took my rights for granted until now. With the advent of this lawsuit and with the following opportunities to meet with others who are concerned about civil rights, my eyes have been opened to the need for the education of our society. Schools should be a safe place for all people, kids and teachers alike. We are not all the same. We should be allowed to be different and even celebrated for our differences. My family’s life has changed dramatically in the last year. But it has been wonderful. To finally be honest, to be who I am, to love whom I love, and to never have to hide again. So far, it has all been worth it. Thank God there are organizations like the American Civil Liberties Union that believe in the basic civil rights of all Americans. I am glad they are on my side of freedom. _________________________ Alcohol Advertising: Utah Does Not Toast the First Amendment By Brian Barnard, Attorney Upon the passage of the 21st Amendment, which ended prohibition in 1933, individual states were given the right to regulate the sale of alcohol. Until recently, the assumption was that this right extended to the state’s right to restrict or prohibit advertising of alcoholic beverages. Based on this assumption, the state of Utah virtually banned all advertising of alcoholic beverages. It was illegal and could result in criminal sanctions and, even worse, the revocation of a state issued license to sell beer, wine, or liquor, if a licensee had a neon beer sign or an alcohol price list in a window that was visible to the public. Restaurants could not post advertisements with a picture of a person holding a glass of wine, and taverns could not have the word BEER displayed on the outside of their establishments. Obviously, a billboard or a newspaper advertisement by a Utah licensee was out of the question. Most taverns look like taverns, even to the uninitiated. So why prevent the tavern from letting people know what brands of beer they sell? The recent popularity of non-alcoholic beers helped deal with the problem of neon beer signs in tavern windows. Tavern operators put neon signs advertising Cutter and O’Doul’s in windows. Those signs for non-alcoholic beer look just like neon signs for beer! Ironically, most members of the public offended by and who sought protection from neon beer signs in tavern windows knew no difference between a neon sign for Cutter and one for Budweiser. One hypocritical aspect of Utah’s alcoholic beverage advertising regulations deals with out-of-state companies. Utah State laws and the Utah Alcoholic Beverage Control Commission (UABCC) rules govern only residents and licensees in Utah. The UABCC will not enforce advertising restrictions against out-of-state advertisers. If a national brewer like Anhauser-Busch, located in St. Louis, Missouri, arranged and paid for a Utah newspaper ad for Budweiser, that ad ran without rebuke by the Utah authorities. Such an ad must not mention any Utah sellers or licensees, and can not be paid for by a Utah seller or licensee. Similarly, national wine and hard liquor companies are and have been running ads in Utah’s media. However, Utah vineyard, Arches Winery, can run only "tombstone" ads in Utah, listing their name and address and not mentioning that they make or sell wines! If the purpose of restricting advertising is to discourage consumption, how can Utah’s liquor regulators allow "national" ads? National companies have remained free from advertising restrictions because Utah regulators have long acknowledged that the federal constitution prevents interference with interstate commerce, and consequently, prohibits Utah from regulating national advertising. Two years ago, the federal constitution reined in Utah’s liquor regulators in another way. In July, 1996, the United States Supreme Court ruled in a case from Rhode Island that the First Amendment trumped the 21st Amendment, and states did not have unlimited power to regulate or prohibit advertising of alcoholic beverages. The First Amendment restrains government interference with free expression, including commercial speech, or advertising. According to the United States Constitution, state governments cannot restrict truthful advertising of a legal product without first demonstrating a substantial governmental or societal interest. As a result of this decision, I filed a federal lawsuit in July, 1996, in the United States District Court for Utah, challenging Utah’s prohibitions on alcohol advertising as a violation of the First Amendment. The lawsuit was on behalf of the Utah Licensed Beverage Association (ULBA), a trade group of Utah tavern owners and beer licensees; Catalyst, a local magazine that wants to provide their readers with information concerning availability of alcoholic beverages; and Wayne Benson, a member of the public who claims the constitutional right to receive information through advertising about alcoholic beverages. As a direct result of that lawsuit, in September, 1996, the UABCC altered its rules as to the advertising of beer in Utah. Differentiating between beer, wine, and distilled spirits, the UABCC removed most restrictions on the advertising of beer by Utah purveyors. Based upon questionable assumptions that beer is different than other alcoholic beverages (or perhaps because the beer industry has better lobbyists and creates more tax revenue than wine or liquor companies), the UABCC now allows most advertising for beer. Consequently, within the last two years, among other advertising, large signs have appeared in windows of convenience stores and supermarkets emblazoned with the word BEER and featuring a list of prices. In that regard, a couple points are worthy of note: the world, as we know it, has not come to an end; and the consumption of beer in Utah has not increased. In September, 1996, the State of Utah asked the federal judge to dismiss the lawsuit, claiming that the State’s allowance of beer advertising resolved the claim of the ULBA. The State also argued that Catalyst and the public representative plaintiff did not have the legal right to complain about alcohol advertising restrictions. At the same time, the plaintiffs asked the court for an immediate order to lift the remaining bans because they violate the First Amendment. Plaintiffs also sought a summary judgment, a determination that the law and facts are so clear that a trial is not needed, and the court can immediately rule that the restrictions are unconstitutional. Now, more than a year and a half later, the federal court still has those competing requests "under advisement," that is, the judge is thinking about what to do. In the meantime, the Utah beer industry advertises with few restrictions, and the First Amendment rights of Utah purveyors of wine and distilled spirits and their consumers are for naught. Brian Barnard is a civil rights attorney who continues to be an invaluable resource for the ACLU of Utah. Over the years, he has worked with our organization on several cases concerning conditions and policies at Utah correctional facilities, and on issues involving the separation of church and state. _________________________ Student Report: The East High Gay/Straight Alliance By Ivy Fox People ask me, what does it feel like to be in the Gay/Straight Alliance (GSA)? I often reply, how does it feel to be accepted? To be supported? To feel safe? The GSA is more than just a club – it is a support group. I went to my first GSA meeting not knowing anyone. I left that same meeting with at least three or four new friends. The GSA is a group in which no one will be discriminated against. I have never felt uncomfortable or unsafe when I am at a GSA meeting, and there is always someone around if a member of this group needs some support or attention. Dr. Martin Luther King said, "Our lives begin to end the day we become silent about things that matter." The forty-six clubs that were destroyed and the GSA mattered. We filed this lawsuit because we are no longer willing to be silenced. The previous choices that were made are not acceptable, and we are no longer willing to stand for these unjust situations. You ask me, what does it feel like to be in the GSA? I ask you, what does it feel like to be free? _________________________ Student Report: The East High Gay/Straight Alliance By Keysha Barnes I have been deeply involved with the Gay/Straight Alliance for over one and a half years now. In that time, it has changed my life dramatically. The friendships I have made within the group are strong and sure to be long lasting. From those friendships have come a tremendous boost in self-confidence. Being a member of this group motivates me to come to school because I no longer feel out of place. I think being a member of any club gives a teen a sense of belonging. In May, we were invited to the Gay/Straight Youth Pride March in Massachusetts. The model set by Massachusetts is an excellent one that all other states should follow. Our greatest wish is that Governor Leavitt will follow the example of Massachusetts Governor William Weld and establish a Governor’s Commission for Gay and Lesbian Youth here in Utah. Ivy Fox and Keysha Barnes are both named plaintiffs in the ACLU of Utah’s lawsuit regarding high school clubs in the Salt Lake City School District. With Lambda Legal Defense and Education Fund as co-counsel, we maintain that the district has been mis-classifying non-curricular clubs in order to remain in compliance with the federal Equal Access Act. The case has First Amendment claims as well. Our hope is that the Salt Lake City School District will choose to reinstate all non-curricular school clubs, and thus provide its students with a more complete education than they are now receiving. Return to top of page

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