Monthly Archives: October 2010

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Illinois Court SLAPPs Condo Association in Mezuzah Case

On September 30, 2010, in Shoreline Towers Condominium Association v. Gassman, the Illinois Appellate Court held that a condominium association’s lawsuit against a unit owner for defamation and other counts violated the Illinois Citizen Participation Act (anti-SLAPP Law).  The unit owner, Debra Gassman, had challenged a condominium bylaw which precluded residents from placing personal objects in common areas.  Pursuant to the bylaw, the association removed a mezuzah Gassman attached to the doorpost of her condominium. While Gassman filed various civil rights petitions to challenge the rule, maintaining that it constituted religious discrimination, she also provided information to the Jewish Star newspaper and engaged in other conduct criticizing the rule as anti-Semitic and made disparaging comments regarding the President of the association. The condominium association’s lawsuit sought injunctive relief and  damages.  The trial court dismissed the counts of the association’s lawsuit brought in its own name, finding it to be a strategic lawsuit against public participation.  It denied the motion to dismiss the counts of the suit that sought relief on behalf of the condominium president.  In affirming the dismissal of the association’s counts, the Appellate Court held: “Contrary to Shoreline’s argument, the Act does not protect only public outcry regarding matters of significant public concern, nor does it require the use of a public forum in order for a citizen to be protected.  Rather, it protects from liability all constitutional forms of expression and participation in pursuit of favorable government action.”  The Court also affirmed an award of attorney’s fees to Gassman.

Shoreline Towers demonstrates that claims of defamation against individuals exerting their speech rights to participate in or petition government are immune from liability unless the plaintiff  produces clear and convincing evidence that the acts of the moving party are not in furtherance of such rights. Particularly, where there is evidence of  underlying claims challenging laws as unconstitutional or other petitions for government action, there is a great burden on parties seeking to silence such citizen participation through lawsuits. As Shoreline demonstrates, because most anti-SLAPP statutes provide for attorneys’ fees in the event of meritorious claims, there is a heavy price to pay for retaliatory lawsuits seeking to penalize persons for exercising their constitutional rights.

Seventh Circuit Stops Enforcement of Ordinance Restricting Adult Bookstore Operating Hours

On October 1, 2010, the United States Court of Appeals for the Seventh Circuit affirmed the entry of a preliminary injunction and blocked the enforcement of an Indianapolis ordinance restricting the operating hours of adult bookstores.  Annex Books, Inc. v. City of Indianapolis, Indiana.  The ordinance required adult bookstores to close between midnight and 10:00 a.m., Monday through Saturday and all day on Sunday.  The City claimed that the closure would help reduce crime.  However, the bookstores provided arrest data showing that the number of arrests in Indianapolis either stayed the same or even rose after the ordinance became effective.  In defense of the ordinance, the City only presented a study showing that an ordinance dispersing adult bookstores, but not regulating their hours, reduced crime in Sioux City, Iowa.  The court recognized the distinction between that study and the Indianapolis ordinance, and found that the bookstores’ data implied that the restriction on hours did not measurably benefit a reduction in crime.  Thus, the Court held that the City did not meet constitutional scrutiny, i.e., that the law furthered an important government interest in a way that was substantially related to that interest.

Annex Books demonstrates that municipalities seeking to regulate the operation of adult-oriented businesses through time, place and manner restrictions must satisfy “intermediate scrutiny” in order for a restriction to be constitutional.  Indianapolis’ complete lack of proof on this point warranted the preliminary injunction being entered against enforcement of the ordinance.