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HEART BEAT LAWSUIT MOVES FORWARD: Attorney serves papers, drops claim

Worries over free speech enter public discussion 


COLUMBIA, Mo 1/23/14 (Beat Byte) --  Columbia personal injury attorney Aaron W. Smith kicked off his lawsuit against the Columbia Heart Beat Wednesday, serving papers through a process server.  
 
Smith also dropped a defamation claim, one of two against the Heart Beat, which he mistakenly refers to as a "blog."    

Known in legal parlance as a False Light Invasion of Privacy (FLIP) suit, the second claim alleges Mr. Smith was injured after a Columbia Heart Beat editorial "fueled a neighborhood rally" against him "regarding removal of trees at his private residence."  
 
Without naming him, the editorial asserted Mr. Smith's right to do what he wants with his property -- a prominent estate on well-traveled Stewart Road, clearly visible from the street -- and the public's right to criticize the result.   Smith's lawsuit names two other defendants who did just that:  Ruthie Moccia, a psychologist; and Sarah Grim, a professional pet sitter. 

A second editorial, drawn from Mr. Smith's online comments, explained why he removed the trees and his plans for the property. 

False light claims -- which are distinct from libel and defamation -- have a sparse and recent history in Missouri, starting in 2008 with a Missouri appellate court decision in Meyerkord vs. Zipatoni.   The Missouri Supreme Court expressed mixed feelings about such claims in a 2013 case, Farrow vs. St. Francis Medical Center and Cedric Strange, M.D.  (pg. 29).   The Justices dismissed a false light claim in that suit, acknowledging and discussing the lower appellate court ruling but noting, "This Court has not recognized a cause of action for false light invasion of privacy."   

The "classic" FLIP case, the Missouri Supreme Court noted in another case, Sullivan vs. Pulitzer Broadcasting, "is when one publicly attributes to the plaintiff some opinion or utterance, whether harmful or not, that is false, such as claiming that the plaintiff wrote a poem, article or book which plaintiff did not in fact write." 
 
Public reaction has generally painted the Heart Beat lawsuit -- which arrived at the Columbia Daily Tribune several days before it was served -- as an assault on free speech.   "An attorney who has free access to the legal system can silence opinion and squelch free speech on a whim," wrote Keep Columbia Free director Mark Flakne

Flakne interviewed constitutional law expert David Roland, director of the Theodore L. Stiles Center for Liberty in Olympia, Washington.  The lawsuit, Roland explained, "represents a significant threat to the freedoms of speech and press.  Imagine the chilling effect on journalists and bloggers all over the country if, all of a sudden, wealthy people could file suit against someone who criticized their Christmas decorations."

Humor has also entered the debate, with an offer from Gotcha Costumes of half-priced singing telegrams to Smith's law office and a Darkow cartoon in the Columbia Daily Tribune showing Dr. Seuss' tree-loving Lorax pondering a potential assault on his right -- to tree speech. 

   
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