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Commentaryby David A. Plymyer8:52 amMay 21, 20240

Maryland lawmakers must stop the powerful from SLAPPing down free speech

After Fells Point residents get a threatening letter from the Atlas Restaurant Group’s lawyer, a call for reform of the notoriously weak law to curb Strategic Lawsuits Against Public Participation (aka SLAPP) lawsuits [OP-ED]

Above: Bills to better protect citizens from intimidating SLAPP suits have failed repeatedly in the Maryland General Assembly. (cldc.org)

Among the rights protected by the First Amendment to the U.S. Constitution is the right “to petition the Government for the redress of grievances.” The right is also protected by Article 13 of the Maryland Declaration of Rights.

“One of the most precious of the liberties safeguarded by the Bill of Rights,” it is a right implied by the “very idea of a government, republican in form,” as the U.S. Supreme Court has said.

But you would never know that from reading Maryland’s inadequate anti-SLAPP (Strategic Lawsuit Against Public Participation) statute.

The statute is supposed to protect citizens from “SLAPP suits” by securing their the right to offer testimony to governmental bodies or speak out publicly on matters within the authority of those bodies without fear of litigation.

Atlas Restaurant Group’s plan for a new bar on Thames Street stirs anger and fear (5/13/24)

A recent letter to opponents of the proposed transfer of a liquor license to Thames Street Venture, LLC for a new establishment in Baltimore’s Fells Point neighborhood is the latest example of why the statute must be strengthened.

Excerpt from the 4/18/24 letter sent by a law firm representing Thames Street Venture LLC,

Excerpt from the 4/18/24 letter sent by a law firm representing Thames Street Venture LLC which was mailed to some opponents of its liquor license transfer request, cc’d to Alexander “Alex” Smith.

Threatening Letter

Alex and Eric Smith, brothers and top executives at the Atlas Restaurant Group, each own 40% of Thames Street Venture, LLC, which is slated to be the majority owner of a proposed new establishment on Thames Street. Atlas owns and operates 34 restaurants, including dozens in Baltimore.

A lawyer sent a “preservation of evidence” letter on behalf of Thames Street Venture to Fells Point residents who had raised objections with the Baltimore Liquor Board to the company’s application to transfer a liquor license to the new establishment.

The letter told recipients that “litigation against certain parties is reasonably foreseeable” because of actions allegedly taken in bad faith by opponents of the transfer and warned them not to destroy any records pertaining to their communications with the liquor board.

It described possible causes of actions, including “tortious interference with prospective advantage and tortious interference with contractual relations.”

A jargon-heavy threat like that, even if hollow, tends to inhibit the exercise of First Amendment rights.

The letter was dated April 18. It addressed actions that resulted in postponement of the Liquor Board hearing on the proposed transfer scheduled for April 2. The hearing is now scheduled for this Thursday.

If the letter caused some recipients to reconsider their participation in the proceedings, who could blame them? Even an unsuccessful suit can cost tens of thousands of dollars to defend.

Excerpt from 2021 testimony by Delegate Samuel I.

Excerpt from 2021 testimony by Delegate Samuel I. “Sandy” Rosenberg, who has tried to get bills passed to strengthen Maryland’s weak anti-SLAPP laws.

Designed to Intimidate

The letter sent on behalf of Thames Street Venture was not the first letter of its type involving Alex Smith and the Atlas Group.

In January 2021, a similar letter was sent to residents who made an unsuccessful attempt to stop renewal of the liquor license for the Choptank restaurant, also in Fells Point.

When one of the three opponents who dared to appear at the hearing tried to testify about what he had received from Smith’s attorney – “it was a very threatening letter for, basically, signing a petition” – he didn’t get far.

“That’s not before us,” Liquor Board Chairman Albert J. Matricciani Jr. said, cutting him off before the board went on to vote on the side of the restaurant.

“It was a very threatening letter for, basically, signing a petition”  – citizen testifying before the Liquor Board.

Another letter came to light earlier that year. A lawyer for La Cité Development threatened opponents of the firm’s plans for redevelopment in the Poppleton neighborhood with litigation for allegedly making false statements about its project.

Both letters came on the heels of a $25 million lawsuit filed in July 2020 by VS Clipper Mill, LLC, a firm controlled by prominent Baltimore developer Larry E. Jennings. This suit accused residents in the Clipper Mill community of improperly testifying against two of Jennings’ projects, including one involving the historic Tractor Building on Clipper Park Road.

The Maryland Appellate Court upheld the decision by a Baltimore circuit court judge dismissing the Jennings lawsuit as a SLAPP suit after 1½ years of litigation.

Little wonder threats of such litigation intimidate ordinary citizens.

Developer Larry Jennings loses his $25 million lawsuit against Clipper Mill residents (12/1/20)

Time for Reform

Laws can be passed to ensure citizens’ access to government, including openness and transparency measures.

In Maryland, these laws are notoriously weak. The state’s law protecting citizens’ rights to freely express their views to government agencies is no exception.

Like 32 other states and the District of Columbia, Maryland has an anti-SLAPP law. Each year, bills are introduced before the General Assembly to strengthen Maryland’s law. And each year they fail.

Proposed reforms include shifting the burden to the plaintiff to prove that a suit has substantial justification in law and fact when a defendant files a motion to dismiss it as a SLAPP suit. A plaintiff who fails to do so would be required to pay the defendant’s attorney fees.

The bills also would eliminate the Maryland requirement – unusual among anti-SLAPP laws – that a lawsuit must be brought in “bad faith” to be defined as a SLAPP suit.

This requirement means that, even if it’s established that a suit that inhibits or is intended to inhibit the exercise of First Amendment rights was brought without substantial justification, the defendant has the additional burden of showing that it was brought with dishonest or other improper motivation, i.e. “bad faith.”

Requiring the victims to meet this onerous test in order for their SLAPP suit to be dismissed serves no purpose other than protecting wrongdoers.

The unreasonable narrowing of the definition of a SLAPP suit makes it that much harder for a Maryland citizen to prove that he or she is the victim of one.

Curb their Enthusiasm

Maryland lawmakers should concern themselves less with the interests of trial lawyers and developers and more with ordinary citizens who seek to exercise their constitutional rights in matters before state and local agencies.

If those lawmakers properly define a SLAPP lawsuit and increase the risks of filing an unsuccessful one, the frequency of such suits will decline dramatically.

Lawmakers should concern themselves less with the interests of trial lawyers and developers and more with ordinary citizens who seek to exercise their constitutional rights.

It is unethical for a lawyer to threaten a lawsuit if the threat inhibits or is intended to inhibit the exercise of First Amendment rights, and a lawyer should know that a threatened lawsuit would be dismissed as a SLAPP suit.

The frequency of letters from lawyers threatening SLAPP suits would diminish if the definition of a SLAPP suit was made less restrictive. And any threats made to ordinary citizens would be far less credible.

Failure by the General Assembly to act will only guarantee that the threats and intimidation will continue.

• David A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. To reach him: dplymyer@comcast.net and Twitter @dplymyer.

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