Terminix did more than just threaten my First Amendment Right to freedom of speech.  On March 17, 1998, I received an e-mail message from Ted Wood, another attorney representing Terminix with the firm David Tennant and Associates, notifying me that an ex parte motion had been filed against me by Terminix which would be heard in Sutter County Superior Court at 3:00 p.m. on Friday, March 20, 1998 -- only three days’ notice.

I hurriedly retained an attorney, Michael Barrette, to represent me. He explained that Terminix had filed suit against me for defamation and that the ex parte hearing was being held to force the temporary removal of my web site until the trial.  There was no doubt that this was a SLAPP suit.

According to the California Anti-SLAPP Project:

A SLAPP suit is a strategic lawsuit against public participation -- civil complaints or counterclaims (against either an individual or an organization) in which the alleged injury was the result of petitioning or free speech activities protected by the First Amendment of the U.S. Constitution.

SLAPP’s are often brought by corporations, real estate developers, or government officials and entities against individuals who oppose them on public issues. Typically, SLAPPs are based on ordinary civil tort claims such as defamation, conspiracy, and interference with prospective economic advantage.

While most SLAPPs are legally meritless, they effectively achieve their principal purpose: to chill public debate on specific issues. Defending a SLAPP requires substantial money, time, and legal resources and thus diverts the defendant’s attention away from the public issue.  Equally important, however, a SLAPP also sends a message to others: you, too, can be sued if you speak up.

Every year thousands of people are hit with SLAPPS for such activities as writing a letter to a newspaper, reporting misconduct by public officials, speaking at public meetings, filing complaints with officials over violations of labor laws or health and safety laws, “whistle blowing” in corporations, or organizing tenants.

The morning of the hearing, our local newspaper, the Appeal-Democrat, ran the story “Consumer’s web page bugs pest controllers.” (Great title!)

On our way into the courtroom, Mr. Barrette informed me that these hearings are normally conducted in chambers with just the attorneys and the judge.  I had enough of secret meetings in chambers during the “trial” and requested the hearing be held openly. The judge granted my request.

Offered as evidence in the documents Terminix’s attorney, Ted Wood, submitted to the court prior to the hearing was an attachment of a printout of my web site. The home page, entitled “Consumer Alert!,” was six pages of printed text. My attorney, Mr. Barrette, pointed out to the court that the entire text from the flower vine to the counter and guest book was missing.  Mr. Wood stated his printer didn’t print it.  Out of a huge document, the only thing Mr. Wood’s printer allegedly didn’t print was my disclaimer.

Mr. Barrette pointed out to the court the page with the missing text was also the only page missing page numbers that were automatically printed on each page. Mr. Wood then claimed the disclaimer wasn’t there when they printed the web site.  Mr. Barette pointed out to the court we have a photocopy of the web site when it was first published which does indeed contain the disclaimer.

With the exception of the defamation charge, none of the things I was accused of by Mr. Mallory (unauthorized use of the Terminix name, unauthorized use of Terminix’s registered trademark, unauthorized use of Terminix’s business records) was an issue in court.

The arguments by Terminix’s attorney were actually rather pathetically funny.  The judge told him he had not submitted any proof that anything contained on the website is false. The dialogue then went something like, “But your honor, she made defamatory comments about us.” The judge replied, That may be true, but are they false?”  “But your honor, they are defamatory!”  Duh!  It apparently never occurred to them that maybe, just maybe, their own actions are what are defamatory!

Mr. Barrette informed the court he would be filing an anti-SLAPP motion, which must be heard within thirty days.  The judge set a court date for the hearing on the motion filed by Terminix for an injunction to permanently shut down this web site.

The following morning, the Appeal-Democrat ran two stories:  “Judge refuses to shut down web site” and “Free speech is alive and well on the Internet.”