Free Speech

City Ordered Not to Sue Resident for Complaining About Stench

Should you move to Sibley, Iowa? Hard to say. It has its good points and its bad points, according to Josh Harms, which he discusses on his website Should You Move to Sibley, Iowa? For example, the downtown seems to be reviving, there’s a good system of hiking trails nearby, and El Tio Nacho’s is an outstanding Mexican restaurant.

And he also says the horrible malignant rotten-blood stench that once hung over part of the town is, if not gone, at least much improved. So that’s good too.

Exactly how much it’s improved isn’t clear, though, because Harms says he revised the website after the city threatened to sue him if he didn’t. That suggests it might change back at least to some extent, now that a federal judge has reminded the city that its residents have a First Amendment right to express opinions.

According to Harms, and other sources cited in the complaint the ACLU filed on Harms’s behalf, in 2014 a new dog-food plant began to emit “noxious smells” (the terms above are the ones Harms used). This resulted in numerous complaints by citizens, and numerous citations (at least 19) from the city about the nuisance. Unfortunately for Harms, he lived right across the street from the plant. According to the complaint, after the city had been unable to resolve the problem, and moving across town didn’t help, he created the website linked above, which at the time answered the titular question “No.”

That was in July 2015. In December 2017, the city council took up the issue of Harms’s website, which in their view was not only derogatory but outdated and inaccurate. The minutes of the December 11 meeting noted that the council had directed the city attorney to send a “letter to get it down.” That letter claimed Harms was “libeling” the city, interfering with “recruitment,” and “negatively affecting property values.” If he didn’t take it down and replace it with “non-derogatory material” within ten days, the letter said, the city would sue him.

Not only that, the city’s attorney told Harms that he knew a local reporter wanted to speak with him about the situation, and that it would (according to the complaint) “not be in Harms’s best interest to speak with” the reporter. He didn’t, but she wrote an article anyway that noted the threats and also that Harms had made “dramatic changes” to his website after getting the letter. Afterward, the city doubled down with another letter, which said that it was “not a threat of litigation and is not in any way intended to deter your exercise of your legal rights,” but also noted, I guess coincidentally, that Iowa has a cause of action for “slander upon title.”

Is this constitutional? Let’s just say that the ACLU filed the complaint on March 8, and by March 27, the city had folded.  It agreed to stipulate to an order permanently enjoining it from suing or threatening to sue Harms for speaking to reporters or publishing his website “in its previous form or in any future form, including www.sibleystinks.com [a domain Harms had been planning to buy] or any other successor websites” that criticize the city. A federal judge entered the injunction on March 29. The ACLU says the city has also agreed to issue a written apology, give staff some “training on the First Amendment,” and pay about $27,000 in damages and attorneys’ fees. So the city’s “defense” lasted at most 19 days, and that’s not counting the time it took to negotiate and then to draft the joint motion for injunction.

So no, it’s not constitutional.