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The Right to Rant

A new law that protects citizens trying to participate in government gets its first day in court.

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Can you imagine the founding fathers making war against England without maligning King George III in the process? Or Barack and Hillary volunteers refusing to talk trash about their opponents? And when neighborhood groups get up in arms, do you suppose moderation is the watchword? Democracy is rude.

Developer James Jaeger was called "greedy," "very sneaky," and "evil" last year when he pursued a zoning change that would let him put up a seven-story multipurpose building at 1820-42 W. Irving Park Road. Neighbors who believed such a building would be too big for the location fought the proposal, and in the end the local alderman refused to give Jaeger his variance. So he knocked two stories off his design and construction is now under way.

It was a local dispute like a hundred others, but a couple things distinguish it. One is that Jaeger counterattacked, suing two of the opposition's ringleaders, Tom and Joy Okon, for defamation. The other is that the Okons are now defending themselves by invoking a new and untested state law: the Citizen Participation Act.

Jaeger, president of JCJ Development, must have been monitoring the blog, at northcenterneighbors.blogspot.com, that the Okons launched to unite the resistance. Last May 10, Tom Okon, a real estate agent, posted his reaction to the group's discussions with the Northcenter Chamber of Commerce: "Our meeting with the chamber that we thought would be friendly and amicable turned out to be a sham. Based on prior meetings and statements, I thought we had support from key members of the Chamber. That support now appears to be non-existent. The Chamber seems to have swallowed Jim Jaegers BS hook line and sinker. I guess the large $3,500 donation he gave them really did the trick."

Members of the chamber, Okon wrote, "only care about how much money and power they have. Perhaps Mr. Jaeger also personally wrote them each a check... who knows for sure."

Jaeger filed suit the very next day, asserting that Okon "knew the statements to be false or acted with reckless disregard as to their truth" and that they "prejudiced [Jaeger] in his profession or trade and imputed the commission of a criminal offense." They "assailed the JCJ's business methods and accused it of fraud. Specifically, the statements alleged that the president of JCJ Development engaged in the bribery of members of the North Center Chamber of Commerce."

Bribery? Fraud? Or was Okon simply saying that money talks, and Jaeger's $3,500—which purchased some banners Jaeger has strung along Irving Park Road near his project—also bought him the chamber's goodwill?

If the suit proceeds, that will be for the courts to decide. Either way, a few facts seem to suggest Okon may have been off base: 37 other local businesses bought banners at the same time, according to Garrett FitzGerald, executive director of the chamber; $3,500 isn't a lot of money; and Jaeger never did get his variance.

Jaeger's suit asserted that he'd "sustained special damages in the delay in securing approval of [his] project." That may be true, and ongoing neighborhood opposition may have been responsible, but the issue at hand was Tom Okon's May 10 post. How could Jaeger say a day later that his project had been held up by it?

To get Jaeger's suit thrown out, attorney Daliah Saper had to argue that the truth of Okon's post was not an issue because he was simply offering opinion, which is generally protected under libel and defamation law. This obliged Saper, in a sense, to disrespect her client. "Statements expressing mere opinions or commentary do not constitute defamation," she wrote in her July 27 motion to dismiss the suit; the language Jaeger was challenging was "mere rhetorical hyperbole and speculation." A blog, she argued, "is a well-known subjective forum that is inherently unreliable as a source of factual information.... It is obvious to any viewer that the site is subjective and biased, that the statements made are done so with figurative and hyperbolic language, and that information contained in these statements is not to be taken as credible."

Saper's approach didn't fly. In October circuit court judge Ronald Davis rejected Saper's motion to dismiss. On February 27 Jaeger filed an amended complaint naming Joy Okon as her husband's codefendant.

"In a planned and premeditated fashion," Jaeger now alleged, Joy Okon "set out to defame Jaeger over the course of at least five months in 2007 through a series of emails containing false statements." They'd been sent to allies in the cause. On May 7: "It is just the greed of the developer... it makes me sick. He tells so many lies and deceptions... trying to play off as if he is a nice guy... when he is greedy and does not care about this community." On May 18: "Keep in mind these guys are experts at BS and snowballing people—they lie lie lie and deceive." On May 23: "I hate people who deceive and are dishonest! They will get theirs when they meet their maker." On June 7: "Beware... I know [Jaeger] is up to something very sneaky." On July 10: "They are not playing nice.... You will meet some down right evil people in your life... and this developer and his followers are those evil ones."

And Jaeger now could present more tangible evidence of being harmed: he never did get his variance.

A month after Saper filed her motion to dismiss, the Citizen Participation Act—sponsored by Chicago senator John Cullerton—became law. As a result, when Saper filed a new motion to dismiss on March 27, her argument was transformed.

The CPA explains itself this way: "There has been a disturbing increase in lawsuits termed 'Strategic Lawsuits Against Public Participation' in government or 'SLAPPS.'... The threat of SLAPPS significantly chills and diminishes citizen participation in government....It is the purpose of this Act to strike a balance between the rights of persons to file lawsuits for injury and the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government."

To that end, the new law says "acts in furtherance of the constitutional rights to petition, speech, association, and participation in government are immune from liability, regardless of intent or purpose." And it is a law that "shall be construed liberally to effectuate its purposes and intent fully."

Unlike SLAPP acts passed by other states, the Illinois one has yet to be tested in court. In September the Kane County Chronicle and columnist Bill Page cited it when they asked a judge to overturn a 2006 verdict that found Page and the Chronicle guilty of libeling the chief justice of the Illinois Supreme Court, Bob Thomas. It was a reach: they not only argued that the act "provides blanket immunity to speech regarding the affairs of government" but asked the judge to apply it retroactively. But a few days later Page and the Chronicle came to terms with Thomas, and the judge didn't have to respond.

Saper's new motion to dismiss is as assertive as the first one was defensive. She declares the Okons were engaging in a campaign to influence government action—to get Jaeger's project rejected—and therefore Jaeger's suit cannot stand. Furthermore, she argues, Jaeger must pay her fees—the new law says anyone filing a suit dismissed under the CPA is responsible for the defendant's legal costs. The act orders judges to rule within 90 days on all motions to dismiss, and although there's normally no appeal when such a motion is denied, the CPA not only permits but encourages an appeal—it tells appellate courts to "expedite" their response. Judges tempted to let the show go on—as Judge Davis did when he rejected Saper's original motion—can expect a higher court to second-guess them.

Just as Jaeger's revised suit sharpened his attack on the Okons, Saper's reply sharpens her attack on him. Since submitting her first motion she's deposed him, and the new motion quotes from the deposition:

Saper: "Was the website only up for one—that posting was only up for one night, right?"

Jaeger: "Probably."

Saper: "You're asserting that the statements posted on that blog caused you damages, is that right?"

Jaeger: "Not just those statements on the blog."

Saper: "What else caused you damages?"

Jaeger: "Words, actions, everything."

She now argues, "The fact that Jaeger retained attorneys and filed a lawsuit less than 24 hours after Tom posted the allegedly offensive blog entry, serves to demonstrate that his lawsuit was part of a greater, premediated [sic] plan to intimidate and stifle any dissenters from exercising their right to protest his development project." Jaeger's actions "constitute the prototypical scenario contemplated by the CPA."

On April 3 the two sides return to Davis's courtroom. The judge and Jaeger's attorneys will now have to deal with a law so new that until last week they might not have known it existed.v

For more on the media, see Michael Miner's blog, News Bites, at chicagoreader.com.

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