Fighting the city

Sibley resident Josh Harms is being represented by the American Civil Liberty Union of Iowa in a federal case against the city of Sibley for alleged violation of his freedom of speech. Photo submitted

SIBLEY—A second federal lawsuit had been filed against the city of Sibley.

The American Civil Liberties Union of Iowa on Thursday, March 8, filed a civil rights lawsuit on behalf of Sibley resident Josh Harms, alleging the city violated Harms’ freedom of speech through threats of litigation. The city of Sibley, city administrator Glenn Anderson and city clerk Susan Sembach are specifically listed as defendants.

The ACLU is requesting a jury trial, which would be held in the U.S. District Court in Sioux City.

Iowa Drying and Processing in Sibley — a company that has been blamed for causing overwhelming odor issues in Sibley — filed a lawsuit against the Osceola County seat city on Feb. 16 in U.S. District Court in Sioux City.

IDP specializes in the contract manufacturing and processing of food and feed grade products, such as high-protein animal feed supplements for companion and domestic animals.

The company and Sibley have gone back and forth in Osceola County district and magistrate courts over the smells caused by the business since the city started issuing code violations in regard to environmental nuisances in July 2015.

‘Censorship also stinks’

In the Harms lawsuit, ACLU Iowa legal director Rita Bettis said they are requesting a preliminary injunction in which the court will step in and protect Harms’ rights and get the city to stop censoring Harms through intimidation.

When the ACLU was presented with this case, Bettis said it was “surprising how blatant” the actions were.

“In this lawsuit, we allege that the city of Sibley trampled on our client’s right to engage in political speech criticizing the city,” she said. “Sibley may smell sometimes, thanks to the IDP plant, but censorship also stinks. These issues are at the core of the ACLU’s mission. Citizens must be free to criticize their government free from retaliatory threats or intimidation aimed at censorship of that criticism. Unfortunately, we see threats to political speech in our country at every level of government.”

Harms, 28, is the creator of the website, which discusses the odors created by IDP and what he perceives as a lack of action by city officials.

The ACLU lawsuit is based on a series of events that have taken place since December.

Harms’ website was discussed at the Dec. 11 Sibley City Council meeting, and minutes of the meeting stated “Discussed a negative website regarding moving to Sibley that was posted — attorney sending letter to get it down.”

A letter, dated Dec. 12, was sent to Harms by DeKoter, Thole, Dawson & Rockman, the Sibley-based law firm representing the city of Sibley. The letter, signed by Daniel DeKoter, stated Harms did not update the website despite the progress the city made with IDP regarding the smells, and includes a recital that the town is “still being polluted as of” whatever the current date is, giving readers the impression that information on the website is current.

“I am reliably informed that the Avera clinic lost a physician prospect who read your website,” DeKoter wrote. “At present, the website libels the city of Sibley, interferes with recruitment of businesses and new residents, and negatively affects property values. That interference is likely your intention, since you took the time to re-register the domain name. I have no idea why you, as a community resident, would want to do harm to your fellow citizens as you are doing.”

The letter threatens Harms with a lawsuit if the website is not taken down within 10 days of the date of the letter. The ACLU lawsuit states this is a violation of Harms’ First Amendment rights.

“As a web developer, the right to free speech, especially online, is extremely important to me,” Harms said. “Receiving this threat from the city was the first time I’ve ever felt afraid that what I might write and put online would make me a target of my own government. I want to use my skills as web developer to protest and to help my community. I grew up here. My family lives here. I’m trying to make the lives of myself and the people who live here better.”

‘Harms was fearful’

After Harms received the initial letter, he sought legal advice from a local attorney, who advised him to seek counsel from a lawyer in LeMars to eliminate close Sibley connections.

Harms was advised to alter the website in light of the threat of litigation. The website creator updated the content, stating it was only his opinion, and that people can decide for themselves whether or not to move to Sibley. He also added a list of good things the town had going for it, and that the offensive odors were not as present as they once were.

The ACLU lawsuit then alleges that after the website drew the attention of The REVIEW and questions were asked of city officials regarding the matter, Harms was contacted by the DeKoter law firm and was told it would not be in his best interest to speak with The REVIEW.

Harms then called The REVIEW back and declined the interview because he “was fearful of what the city would do if he was quoted in the local paper,” according to the lawsuit. The ACLU lawsuit states the decision to threaten Harms if he chose to speak with The REVIEW is a violation of his First Amendment rights.

The REVIEW printed an article in the Dec. 30 issue under the headline “Sibley officials mull ‘negative’ website.” In that article, city administrator Glenn Anderson, mayor Jerry Johnson and city council member Larry Pedley denied authorizing a letter to be sent to Harms. City attorney Harold Dawson denied sending the letter.

‘Slander of title’

Following the publication of The REVIEW article, Harms received another letter dated Jan. 18 and signed by DeKoter, which provided justification of the previous litigation threat.

The Jan. 18 letter stated the original content of was disparaging property in Sibley, which led to a reduction in taxable value of the property. It also stated Iowa recognizes a type of lawsuit called “slander of title,” which involves the disparagement of real estate. The letter stated Harms displayed malice by the fact that he renewed the domain name registration of his website, despite progress being made with the smells, that he chose a website name that would target people interested in moving to Sibley and that he claimed the information was current when it was false.

“In short, that line of reasoning was the legal and factual basis for the threat of litigation,” DeKoter wrote. “I am writing on my own time to explain this, since you or the lawyer you consulted apparently did not view the legal issues from the same perspective that I did.

“I generally find that if I think another person of reasonable intelligence is making a stupid argument, it means that I misconstrued it, or even mistakenly attributed the argument to the person involved. I was not in this case trying to convey a legal argument to you. My purpose was not to write a brief, so this is an instance where unfounded legal arguments are being mistakenly attributed to me on your website.”

The letter continued that Harms was within his legal rights to publish the website in its current, altered form, but the opinion of DeKoter is that Harms would do better spending time doing something more helpful to the community of Sibley.

ACLU cooperating attorney Glen Downey said the actions taken by the city through letters and threats of litigation are “egregious.”

Bettis said the actions taken by the city are exactly the type that were considered when the First Amendment was crafted, and that she is proud to stand up for Harms’ rights.

The ACLU lawsuit states Harms would like to remove the altered content that was added after threat of litigation arose. He wants to post the Dec. 12 letter to refute the denial of city officials in The REVIEW article. Harms would like to grant The REVIEW an interview to correct the record.

He wants to add a form to the website that will allow Sibley residents to report odors emanating from IDP, and he wants to purchase the domain specifically for reporting said odors.

Bettis said they have asked for a jury trial to take place quickly, so Harms’ can move forward on his desired course of action.

Harms and the ACLU also are seeking attorney fees and punitive damages. The amount requested will be determined at trial.