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For more information: Maryam Judar, Executive Director, Citizen Advocacy Center (630) 833-4080

FOR IMMEDIATE RELEASE

In a ruling with important implications for newspapers and the public throughout Illinois, on November 18 DuPage Circuit Court Judge Dorothy French Mallen dismissed a defamation lawsuit [DuPage case number 14 L 413] filed by Winfield Village Trustee Tony Reyes against his community's struggling sole newspaper, The Winfield Express.

The newspaper published an account of a citizen's remarks addressing a public meeting of the Winfield Plan Commission concerning a theoretical future development. The citizen made reference to a controversial action by the local high school board in 2004 to sell some valuable public property to the low bidder at a price almost $6 million less than another bid. The article then described for the reader the history of the transaction, including that the developer soon resold the property for an $8 million profit. The citizen was concerned that one of the persons on the high school board back then, Mr. Reyes, was now on the village board and he feared a repeat.

The article also noted that an outside real estate attorney hired after-the-fact to review the transaction wrote that there “appears to be a violation of the spirit of a statutory requirement that school boards attempt to liquidate their properties at the highest price.” The article concluded with various rhetorical questions residents still ask about the matter, including speculation about bribery, but reminded readers that prosecutors had never investigated the transaction and that everyone involved remains legally innocent of any wrongdoing.

Without first contacting the newspaper to complain, submit a statement, or request a retraction, Mr. Reyes filed his lawsuit shortly after the article was published, claiming that it defamed him and cast him in a false light. Mr. Reyes, who has vehemently denied any wrongdoing in connection with transaction, has further claimed that the transaction was the best deal offered to the school district at the time.

A tactic often used by developers and others who want to shut down criticism is to file a frivolous suit against a critic or ringleader for a breath-taking amount of money, knowing that other members of the public will be frightened to raise their voices lest they too be sued. Even though innocent, the costs and trouble of dealing with a lawsuit have a chilling effect that scares others into silence. That technique is known as a Strategic Lawsuit Against Public Participation (SLAPP).

“Fortunately, in 2007 Illinois passed an anti-SLAPP law, called the Citizen Participation Act (CPA), that allows such suits to be quickly dismissed,” says Maryam [correct] Judar, executive director of the Citizen Advocacy Center that the newspaper turned to for help when the suit was filed. The non-profit Center assists the public in exercising its rights under the Sunshine Laws to hold local governments accountable, and it contacted The Collins Law Firm to represent the newspaper.

The newspaper’s attorney filed a motion for dismissal under the Citizen Participation Act requesting not only that the suit be dismissed, but further requesting that the court order that Mr. Reyes pay the newspaper's legal fees. The motion won.

The judge found that the suit was without merit, filed in retaliation against the paper for a story he did not like, and was intended to chill further criticism. Mr. Reyes has been barred from re-filing his suit, and ordered to pay the newspaper's legal expenses and attorney's fees. “Judge French Mallen is one of the most well-respected judges in DuPage County for her careful reading and consideration of all the motion papers and legal authority,” says Robert Dawidiuk, a partner at The Collins Law Firm who argued the case for the newspaper. “Her decisions are well thought out and reasoned. We were fortunate in this case because the CPA is still somewhat of a developing area of law.”

In her ruling, Judge French Mallen went through the newspaper article point-by-point, dismissive of each complaint on various grounds. She summed up, saying “the lawsuit is meritless because every one of those statements that is complained about either doesn't refer to Mr. Reyes specifically, is true, is innocent construction, or is opinion. None of it rises to the level of defamation. …. So I am finding that this is a meritless lawsuit in that the statements are not defamatory and there is no proof of any actual malice. …. The plaintiff has not provided clear and convincing evidence that the paper and Mr. Greer's motivation was not solely to participate in the constitutionally-protected free speech and government.”

Mr. Reyes was ordered to pay the newspaper's legal costs, a rarity in American courts, but specifically authorized and required by the Citizen Participation Act as a deterrent against filing SLAPP actions to stifle public discussion.

Standing outside the courtroom, Mr. Greer said he was “relieved” because paying any judgment would have closed down the newspaper and jeopardized his house, “which is what that politician has threatened to do to others.”

Mr. Reyes did not attend court, and his attorney, Thomas E. Sullivan, did not volunteer any opinion on whether they would appeal.

Mr. Dawidiuk, the newspaper's attorney, said “I think that the judge got it right and this decision should stand if appealed. It is important to our democratic process that public officials and politicians can be questioned and challenged with tough questions in the public forum – especially newspapers.”

COMMEMORATE CONSTITUTION DAY, CELEBRATE FIRST AMENDMENT FREEDOMS,
AND INSPIRE CIVIC PARTICIPATION

WHAT: CAC Constitution Week Forum,  FREE & OPEN TO THE PUBLIC

WHEN: Tuesday, September 16, 2014 at 7:00 P.M.
          
WHERE: Elmhurst Public Library* 125 S. Prospect Avenue,  Elmhurst, Illinois 60126

Constitution Week commemorates the signing of the U.S. Constitution on September 17, 1787.  Celebrating this momentous event in our country’s history gives us pause to remember the importance of a document held in esteem worldwide for empowering “We the People” with the rights and responsibilities to engage in the democratic process. The First Amendment Freedoms, (freedom of speech, freedom of the press, freedom to petition our government, freedom to assemble, and freedom of religion) are essential components that ensure a healthy democracy and the capacity to hold government accountable.

“Constitution Week recognizes the importance of our founding document by introducing students and adults to constitutional issues through dynamic speakers with first-hand knowledge of what it means to fight for freedom. Mr. Rashid’s experience demonstrates the importance of the First Amendment’s Free Exercise of Religion Clause to American democracy, while sharing a remarkable personal story,” said Andrea Alvarez, community lawyer at the Citizen Advocacy Center.

In collaboration with area high schools and with support from the McCormick Foundation, Mr. Qasim Rashid will be speaking at high schools in DuPage and Kane County and at a public forum to discuss the Free Exercise of Religion Clause of the First Amendment as an important thread in the fabric of our democracy. 

Mr. Qasim Rashid is a vocal human rights activist.  Mr. Rashid is the author of The Wrong Kind of Muslim, an autobiographical personal journey into his heritage and religion as a vehicle into the history and ongoing phenomenon of faith-based persecution and target-killings in Pakistan – starting with a childhood bullying incident in Chicago. He blogs for The Huffington Post, Washington Post, and CNN. His work has appeared in USA Today, National Public Radio, Richmond Times-ispatch, Virginia Pilot, San Francisco Chronicle, among various other national and international outlets. Mr. Rashid regularly interviews in a variety of media including the New York Times, Pittsburg Post-Gazette, Muslim Television Ahmadiyya International, Huff Post Live, NBC, CBS, the Christopher Gabriel Program, Voice of America, among several other national and international outlets. He also regularly lectures on Islam and human rights at various universities and places of worship worldwide.

Mr. Rashid has won numerous awards for his community service, activism, and writing. He serves as the current Chairman of the Muslim Writers Guild of America, serves as a Volunteer Chaplain for the Virginia State Prison system, and also offers pro bono legal assistance to victims of domestic and sexual violence through the Virginia Poverty Law Center. Mr. Rashid  is a practicing attorney in Richmond, Virginia.

Born in Pakistan in 1982, Mr. Rashid  migrated to the United States in 1987 and to the western suburbs in 1988. He is a graduate of Glenbard South High School. In 2007, he received his Bachelor of Science in Marketing from the University of Illinois at Chicago. Mr. Rashid received his juris doctorate from the University of Richmond School of Law in 2012.

In previous years, Citizen Advocacy Center hosted dynamic speakers showcasing other precious First Amendment freedoms.  These include: Mary Beth Tinker, free speech advocate and plaintiff in a landmark Supreme Court free speech case; Toni Locy, free press advocate and award-winning reporter and professor at Washington and Lee University; Jessica Ahlquist, freedom of religion advocate and plaintiff in a successful lawsuit challenging her high school’s endorsement of religion; and Kelly Hayes, advocate for our freedom to peaceably assemble and community organizer for large scale protests in the City of Chicago.                                                                               

The Citizen Advocacy Center is a non-profit, non-partisan community based legal organization dedicated to building democracy for the 21st Century by increasing the citizenry’s capacities, resources, and institutions for self-governance.

* This meeting/program is not an Elmhurst Public Library activity

On June 3rd, CAC had the pleasure of kicking off its 2014 Summer Speakers Series with CAC founder and first executive director, Theresa Amato. Ms. Amato currently serves as executive director of Citizen Works, an organization devoted to rebalancing the power between corporations and citizens.  She is also the Director of its Fair Contracts Project.  Ms. Amato brought a very important message concerning consumer law, specifically, adhesion contracts.  Here’s a brief recap with some history on the subject:

“The meat would be shoveled into carts, and the man who did the shoveling would not trouble to lift out a rat even when he saw one—there were things that went into the sausage in comparison with which a poisoned rat was a tidbit.”  This excerpt from Upton Sinclair’s 1906 book, The Jungle, graphically describes the meatpacking industry’s practices at the turn of the 20th century, which led to a wave of consumer protection laws being passed.  At this time, the United States was experiencing unprecedented growth in the manufacturing industry, which spread to all facets of life.  Consumer protection was not a widespread issue until after the release of the book.

This newfound consumer awareness led to the first wave of major consumer reforms through the Pure Food and Drug Act of 1906, which created the Food and Drug Administration (FDA) in the interest of providing more information on the products to consumers.  As the economy kept growing, the market for new goods and services grew with it. In 1938, after about 100 people died due to poisoning from elixir sulfanilamide, a popular strep throat medicine turned into liquid form, the government recognized and responded to the need for increased safety regulations by passing the Food, Drug and Cosmetic Act.  This was the second wave of consumer laws focused not just on awareness, but more importantly on safety, by including the testing and approval of new products.  In 1958,  in his book The Affluent Society, John Kenneth Galbraith critiqued the economy for its championing the supremacy of commercial values without attention to public values, thus shedding light on corporate marketing tactics on unsuspecting consumers.  

In the 1960s and 1970s, consumer legislation saw its heyday.  By the 1960s, with the rise of affluence in the middle class, the automobile became an extremely hot commodity.  According to the US Census Bureau, the number of registered vehicles doubled from 1950-1970 to a total of 110 million.  Ralph Nader, a young lawyer seven years out of Harvard Law School, noticed an increase in fatal car accidents and those ending in serious injury, especially in the Chevrolet Corvair.  After some investigation, Nader wrote Unsafe at Any Speed, a book that criticized the poor safety standards of many American cars with a focus on General Motors (GM).  His work quickly became recognized around the country, and he was summoned to testify before Congress.  The country was riveted to the televised hearing held against the industry giant GM.  The prevailing attitude was, “What is good for GM is good for America.”  In an effort to discredit Nader and alter his testimony in front of Congress, GM hired a private investigator to tail him.  The Washington Post, among other media outlets, exposed GM’s plot, and Nader won a lawsuit against GM for $6 million for harassment.  The head of GM had to apologize to Nader in front of Congress for intimidating a witness testifying before it.   This began the third wave of new consumer activism, and Nader used the money to set up various consumer-friendly organizations.  Meanwhile, Congress passed bills to protect our water, our air, our safety rights in the workplace, and our rights to access government records.  

After this event, there was a lull in the fight for consumer rights. For 30 years there were virtually no laws until the Dodd Frank Wall Street Reform and Consumer Protection was passed in 2010, in which the Consumer Financial Protection Bureau was created.

Although there was much improvement in consumer advocacy during the first half of the 20th century, there is still much work that has to be done.  It is estimated that 70% of the United State’s gross domestic product (GDP), or the sum of all spending in the economy, consists of consumer spending.  According to Trading Economics, the United States has a GDP of roughly $15.6 trillion, which comes close to $11 trillion in consumer spending.  It is the duty of the Federal Trade Commission (FTC) to monitor this spending; yet, the FTC has fewer than 1,200 employees and an annual budget of $300 million--not quite $1 per U.S. resident per year.  In addition, the Internet age has created a whole virtual world that must also be regulated by the FTC with no additional funding or employees.  Overall, there are simply not enough people on the side of the consumer to make it a fair fight.

This brings us to the current issue of adhesion contracts. Have you ever clicked “agree” to terms and conditions to use services or software such as iTunes?  If so, did you ever take the time to actually read these contracts?  Most likely you did not.  These contracts are typically very long and complex, causing many people to simply agree without truly understanding the agreement., which is not surprising since they can number 75,000 words and written at a post-graduate reading level.  These are known as adhesion contracts, meaning that they are an agreement by two parties to do a certain thing that are drafted up and heavily favor one party over the other.  Particularly troublesome is that most adhesion contracts are standard across entire industries, which leaves consumers with no other choice but to agree.  

Even more troubling are the arbitration clauses that are included in many of the contracts, which require that consumers resolve their disputes outside of the courts.  The Supreme Court of the United States favors the power of corporations to pre-dispute  mandatory arbitration clauses.  This is a major disadvantage for the common consumer who does not understand the implications of waiving their right to sue in court.  Arbitration is private and expensive; there is no rule of law or precedent; and the arbiter need not be a lawyer.     

While, it seems like this issue is an uphill battle for the common consumer; however, it is not a hopeless fight.  One simple tactic to try to battle these contracts is to ask for an explanation of what the contract actually says.  This will typically cause frustration for many companies that use these contracts with the intent of increased efficiency.  Recently, General Mills decided to change its Legal Terms to include arbitration clauses on its coupons and claimed application to all General Mills products.  This revision of the Legal Terms was met with widespread opposition from consumers, causing General Mills to quickly rescind their modifications and return to the original Legal Terms that the consumers supported. This is a perfect example of educated consumers successfully challenging a major corporation without lengthy court trials or large financial loss. 

This program was made possible in part by a grant from the Illinois Humanities Council, which is supported by the National Endowment for the Humanities, and the Illinois General Assembly.