Cyber charter suit raises free-speech questions

For months, parents from the Agora Cyber Charter School in Devon were e-mailing about their difficulties obtaining information on the financial arrangement between the school's founder and her management company.

"I have not given up my fight to clean up this mess. As a taxpayer, I will not rest . . . until legal authorities have dealt with June Brown and her funneling of public funds directly into her pocket," parent Gladys Stefany of Milford, Pike County, wrote in a Dec. 17 message to an online group of Agora parents.

Stefany says she thought she was making a legitimate comment about the woman who founded her daughter's taxpayer-funded school.

Dorothy June Brown responded by suing Stefany and five other parents for defamation, accusing them of slander, libel and civil conspiracy. The suit also names the Agora Parent Organization and unnamed others.

The suit, which seeks more than $150,000 in damages, raises questions: When does criticism of a public official cross the line? And when does a lawsuit against the critics become an attempt to stifle free speech?

A suit aimed at quashing public debate or stopping criticism of officials is known as a "strategic lawsuit against public participation" (SLAPP). First Amendment experts and some legal scholars say such suits have a chilling effect on free speech.

"They are often going after people who have no money to pay damages or anything," said David Kairys, a professor of constitutional law at Temple University. "They have nothing to gain but to shut them up. It's the classic chilling effect."

Such suits "strike at the very core of our democracy because they do discourage ordinary citizens from participating in matters of public importance," said Paul K. McMasters, former First Amendment ombudsman at the Freedom Forum in Arlington, Va.

The Agora parents said they believe they are targets of a SLAPP.

The attorney who represents Brown and her management company disagreed.

"It is a defamation suit," attorney Wendy Beetlestone said. "The defendants have the right to defend themselves like anybody else. It isn't a SLAPP lawsuit."

Other lawyers and First Amendment scholars, though, said that SLAPPs are often defamation cases and that the Agora suit seemed to fit the pattern.

"That is certainly how a SLAPP suit looks," said Robert D. Richards, a professor of journalism and law, who codirects the Pennsylvania Center for the First Amendment at Pennsylvania State University.

Filed Jan. 21 in Montgomery County, the suit is an outgrowth of parents' efforts to obtain answers to questions about the financial relationship between Brown and her management company, Cynwyd Group L.L.C., and the cyber charter school.

Agora, which provides online instruction to 4,000 students across the state, rents its headquarters from Cynwyd under a nine-year lease and pays the firm a management fee. Brown owns Cynwyd and serves as its senior consultant to Agora.

The suit says the parents made misleading statements online and in complaints to the state Department of Education "that give the clear but false impression that Dr. Brown is corrupt, incompetent and possibly criminal."

In one of the e-mails, Stefany complained that Agora and its board of trustees in November banned parents from communicating with one another via school e-mail and an online forum maintained by the school.

"This action is being done for the clear purpose of covering up ineptitude, malfeasance and financial corruption on the part of Ms. Brown and, by their silent acquiescence, the Agora Cyber Charter School Board of Trustees," Stefany wrote to Brown and the board president.

Beetlestone said that when parents refused to heed requests to stop defaming Brown, the educator filed suit because she saw it as the only way to end the defamation.

The suit said Brown and Cynwyd Group's ability "to attract business is dependent on Dr. Brown's reputation within the local educational community, a reputation that defendants' statements have compromised."

The parents have denied the charges. They don't yet have an attorney because they can't afford the $300- to $500-per-hour fees lawyers have quoted.

The parents already have received their first round of information requests from Brown's attorney, including all documents and communications they sent to The Inquirer and other news media.

Gene Roberts, former Inquirer editor and a journalism professor at the University of Maryland, has long been concerned about SLAPP suits.

"By and large, they are a well-honed technique to stifle debate," he said. "Unfortunately, they often work because they scare people into silence. They can visualize losing their homes."

He added: "I have long felt there ought to be a legal assistance organization that weighs in on behalf of people who are targets of SLAPP suits."

Legal experts said they knew of no other cases of parents at a publicly funded school in Pennsylvania being sued by school officials for defamation.

"The right to petition the government is a separate right under the First Amendment in addition to freedom of speech, and your right to discuss and ask questions about what some officials are doing," said Temple's Kairys. "The finances of these schools are fair game."

Although the lawsuits have been around for decades, two professors at the University of Denver came up with the term SLAPP about 10 years ago. George W. Pring and Penelope Canan brought attention to their growing use in the book SLAPPs: Getting Sued for Speaking Out, published by Temple University Press in 1996.

SLAPP cases often involve real estate developers and other companies with deep pockets who sue citizens who oppose their proposed developments. They have surfaced all over the country, McMasters said.

He said it is hard to keep track of SLAPP suits, though, because they are filed as defamation suits or as tort claims in local courts.

Pennsylvania and 25 other states have passed some form of anti-SLAPP laws to protect citizens. Many of the laws provide a speedy process for dismissal of suits involving citizens engaged in rights guaranteed by the First Amendment, including freedom of speech and petitioning the government for redress. Many of the laws require the developer or public official who brought the suit to cover citizens' legal fees if the case is tossed out of court.

But Pennsylvania's 2001 statute was so watered down in the state Senate that it only covers citizens who speak out on environmental concerns, according to a prime sponsor, State Rep. Camille "Bud" George (D., Clearfield). New Jersey does not have an anti-SLAPP law.

George said he has been trying to expand the law to protect citizens who make comments in good faith about any issue of public concern.

He began trying to get an anti-SLAPP law passed in 1994 after one of his constituents was sued for complaining that nearby mining had caused her basement to flood.

"Nobody," he said, "should be denied their rights to put forth their position by being buffaloed by the big power interests or the government."

Richards of Penn State, who has worked with George, said Pennsylvania's law, known as the "Environmental Immunity Act," is so narrow it offers little protection.

In fact, the law was no help to residents of Montgomery County's Lower Gwynedd Township who opposed Penllyn Greene, a townhouse development. The developer sued them in 2003, saying their efforts to stop the project had abused the legal process and harassed him and potential buyers.

The courts ruled the residents' statements and actions, including zoning appeals, were not covered because they did not constitute "complaints . . . to a governmental agency" as described in the law.

The state Supreme Court turned down the residents' appeal without comment in 2007. The lawsuit continues.