Politicians v. freedom of speech

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One of the stories that broke while I was focused on the day job involved Tulsa City Councilor Eric Gomez's threats to sue Julie Hall of Who Owns Tulsa? over her criticism of his actions as a councilor. You may have missed it, too, so here's the KOTV News on 6 video, from March 3, 2009:

In a March 2, 2009, e-mail, Hall wrote:

Attached is a letter from Councilor Gomez' attorney threatening to sue me for defamation and my attorney's response. The threat was prompted by my role in coordinating a recall petition against Councilor Gomez and related criticisms of his actions as a public official.

This release is in part a response to the threats against a citizen who reported a possible ethics violation regarding two city councilors. One of my concerns is that the initial response from the City Council included the implied threat of legal action. It would appear that the biggest mistake the citizen made was giving his name rather than reporting his concerns anonymously.

As citizens, we have First Amendment rights. These rights are so important that with respect to public officials and their acts, Oklahoma law protects these communications unless they falsely impute a crime to the officer criticized. Under federal law, speech concerning public officials is actionable only if it is false, defamatory, and made with actual malice.

The Gomez letter was issued after the recall was denied; after I had announced that another petition effort would not be pursued; and after Councilor Gomez stated publicly that he hoped we could put it behind us.

Although I was the direct recipient of the threat, it wasn't limited to me. Councilor Gomez threatened to sue "any and all persons acting in concert with me". This could include the officers of Who Owns Tulsa, anyone who has attended a meeting, or written a check. It could also include every citizen who signed the recall petition.

Lawsuits can financially devastate those involved, and the threat of such lawsuits has a chilling effect on free speech. Lawsuits designed to silence opposition on public issues are known nationally as SLAPP (strategic litigation against public participation) suits, and several states have passed legislation to protect their citizens from such threats. You rarely hear of threatened SLAPP suits because they are so effective, but they happen more often than you might think.

Councilor Gomez is gearing up for an election year. In my opinion, any Councilor who would sue or threaten to sue constituents for criticizing his official actions should not be re-elected. I encourage you to ask your Councilor if you too are at risk of a lawsuit if you criticize his official conduct.

No Tulsan should live in fear that the mere expression of an opinion and participation in public forums or processes is grounds for legal action. We will never agree on every issue, but free speech and the First Amendment belong to us all.

After the jump, the letter that Gomez's attorney sent to Hall, and the reply from Hall's attorney.

The October 10, 2008, letter from Joel Wohlgemuth, Eric Gomez's attorney, to Julie Hall (click the link for a PDF scan):

Dear Ms. Hall:

This firm represents Councilor Eric Gomez. We have reviewed numerous emails which you have disseminated in the Tulsa area. You are a lawyer and either know, or should know, that the false statements which you have published regarding Councilor Gomez are defamatory under Oklahoma law. Any communication which improperly charges a public official with a neglect of official duty, incompetence, or malfeasance libelous per se. Under these circumstances, actual damages are presumed and punitive damages may also be assessed.

I am fully aware of federal and Oklahoma law regarding the First Amendment and matters of public concern. However, your email campaign is reckless and malicious, and has exceeded all legal boundaries. There are no statutory or constitutional protections that apply to your libelous activities.

By this letter, I am requesting that you confirm in writing on or before October 14 at 5:00 p.m., that you will immediately discontinue the distribution of defamatory statements regarding Councilor Eric Gomez. If you fail to provide the requested confirmation, I have been authorized to file litigation against you, and any and all persons or entities acting in concert with you, in the District Court of Tulsa County. In that event, we shall pursue all available remedial measures, including actual and punitive damages as authorized by applicable law.

This letter places you on notice to hold and preserve all information, including electronically stored information, regarding or relating to (directly or indirectly), the matters described in this letter. You are obliged to take affirmative steps to prevent anyone with access to your data, systems and archives from seeking to modify, destroy or hide electronic evidence on network or local hard drives (such as by deleting or overwriting files, using data shredding and overwriting applications, defragmentation, reimaging or replacing drives, encryption, compression, steganography or the like).

I look forward to hearing from you.


Joel L. Wohlgemuth

c: Councilor Eric Gomez

And the response from Hall's attorney to Gomez's attorney, dated January 6, 2009 (click link for PDF scan):

Dear Joel:

This will acknowledge receipt of your letter of October 10. 2008 asserting that our client, Julie Hall, a stay-at-home mother and homemaker, has libeled your client, City Councilor Eric Gomez. Ms. Hall is a constituent of Councilor Gomez, the President of the White City Neighborhood Association, and the Chair of a grass roots citizens' advocacy organization. Who Owns Tulsa. Inc. (WON). At our request, you forwarded examples of the materials that your client believes to be libelous. These materials included the preliminary recall petition naming Councilor Gomez, a legal process that is authorized by the Tulsa City Charter; and also included emails and website statements attributed to Ms. Hall that express critical opinions about Councilor Gomez's job performance as a city councilor.

We have now carefully reviewed every document that you forwarded 10 us. In addition, we went to the WOT website and reviewed every entry. We also asked Ms. Hall to provide us the e-mails she sent that mention Councilor Gomez. We were unable to find a single written statement or series of statements that could even remotely be considered false and defamatory, particularly in light of Councilor Gomez's status as an elected public official. Moreover, everything that Ms. Hall has written and published relating to Councilor Gomez is also privileged as part of a proceeding authorized by law and/or protected as political speech or opinion.1

Given the character of the materials you sent and our own review of the WOT website and other materials, we do not understand what written statements you and your client find to be false, defamatory and libelous. We understand that Councilor Gomez disagrees with Ms. Hall's opinion about his performance as a City Councilor. Such a disagreement, however, cannot form the basis of a valid libel lawsuit by an elected official. Ms. Hall expressly denies that she has defamed and libeled Councilor Gomez in any way, and she intends to continue exercising her right to free speech in relation to elected public officials. This is the United States of America where these kinds of expressions of opinion are protected; and rightly so, because of the "realization that there exists a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open, and that the discussion may well include vehement, caustic and sometimes unpleasantly sharp attack on public officials." Price v. Walters, 1996 OK 63 31. 918 P.2d 1370.

It would be very helpful if you can point us to specific written statements, other than what you have already provided, that your client considers false. defamatory and libelous. It would also be helpful if you can provide us with any legal authority that supports your client's position. This would enable us to more carefully and thoroughly evaluate your client's claims.

As a postscript, we note our c1ient's belief that a libel lawsuit for damages on behalf of Councilor Gomez, as threatened in your October 10, 2008 letter, would clearly be designed to impose the emotional and financial burdens of litigation upon her for the purpose of silencing her lawful criticism of Councilor Gomez. Such a lawsuit would have no basis in fact or law. If Councilor Gomez commenced such a lawsuit, Ms. Hall would have no choice but to attack it as frivolous, assert counterclaims, and seek damages, including an award of attorney's fees, against Councilor Gomez.

If your client has specific additional materials he believes are false, defamatory and libelous and/or if you have any supporting legal authority for your client's claims, please share the same with us. Otherwise, we suggest that Councilor Gomez focus his energies on representing his constituents rather than on suing them.


Steven A. Novick

1 See Title 12 Okla. Stat. Section 1443.1 -- A privileged publication or communication is one made in any legislative or any other proceeding authorized by law. It includes any and all expressions of opinion in the proceeding, criticisms of the proceeding, and any and all crilicisms upon the official acts of any public officer, except where the matter stated falsely imputes a crime to the officer so criticized. Every publication falling under this section would be privileged and shall not be punishable as libel.

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My wife asked me the other day if we could put a sign in our yard for Maria Barnes, the former Tulsa District 4 city councilor who is seeking to take back that seat. For my wife, the decision comes down to this: Incumbent councilor Eric Gomez, who defe... Read More


DaWizard said:

In my humble OPINION, mR. gOmez is acting lika dork!!

And as it is my personal OPINION ... dorks are not best suited to
represent citizens of district 4 ....

So ..... citizens of Tulsa District 4 ... stand up and next time vote
the dork out and elect a duck!

U know .... just my uneducated opinion there ....

As someone who lives in another state, I have to ask: What is wrong with the powerful in your city? Or do you simply lack someone powerful enough to rope in these folks?

Are Tulsa's elite trying to join Detroit and Gary in perceptions of the rest of the Midwest?

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