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Environment: Libel suit prompted by road project goes to federal court

By Charles Swenson
For the Observer

An Horry County man facing a libel suit from the head of the S.C. Environmental Law Project has asked that the case be moved from state to federal court. The suit raises questions of federal law and constitutional rights, according to court filings.

Amy Armstrong filed suit in September against Scott Dilliard saying he had defamed her and the environmental organization she leads in letters to newspapers and elected officials and in social media postings by accusing them of criminal activity and unethical behavior. The law project and Armstrong, its general counsel, represent the Coastal Conservation League and the S.C. Wildlife Federation in opposing permits for a road paving project through a wildlife preserve near the Carolina Forest development in Horry County. Dilliard is among the area residents who support the project.

Circuit Court Judge Roger Henderson granted a temporary injunction that bars Dilliard from making similar comments about Armstrong and from contacting the nonprofit law project’s donors. He was also enjoined from attending the Wild Side benefit for the nonprofit. That event was rescheduled because of Hurricane Matthew and will now be held Nov. 5.

Before moving the case to the U.S. District Court, Dilliard asked the Circuit Court to reconsider the injunction. It is “overly broad and burdensome,” he says in court filings. It has a “chilling effect” upon his constitutional right to free speech and on his right to “peaceably assemble” to protest. The ban on disparaging Armstrong and the S.C. Environmental Law Project to donors and supporters requires that Dilliard know who those people are before making any statement, a provision called “incredibly broad.”

No decision has been made on whether the federal court will be asked to review the injunction, said Jarrod Ownbey, an attorney at the Mullins Law Firm in North Myrtle Beach who represents Dilliard. Although the case was moved to the Charleston Division, Ownbey said they will ask that it be moved to the Florence Division.

In an answer to the suit filed in federal court this week, Dilliard argues that Armstrong and the law project are public figures who must meet a higher standard in showing that his statements were libelous, which he denies. They must show “actual malice,” defined by the U.S. Supreme Court as knowing his statements were false or making them whether or not he knew they were false.

Dilliard says his statements should be placed in the contest of public debate over the road project. According to the complaint, he accused the environmental groups opposed to the paving of International Drive of extortion and called them eco-terrorists. “You are nothing but a bunch of thugs looking to line your own pockets,” he said in one email. “Go ahead … prove me wrong.”

Court filings also cite comments from a range of public officials critical of the environmental groups, including one from the Horry County Council chairman, Mark Lazarus, to a newspaper reporter saying “I called this nothing more than extortion.” Dilliard argues that his statements are “hardly original and unique,” yet he has been singled out by the libel suit.

Dilliard also says “the statements allegedly made … were truthful, constitutionally protected, opinion, privileged, made in good faith and without malice, whether implied or otherwise, and/or with qualified immunity,” according to court documents.

Dilliard also filed a counterclaim seeking damages for “abuse of process.” He says Armstrong and the law project sought to use the courts “to silence the vocal majority” of people who favor the International Drive project.

“The processes and use of the court system by plaintiffs has had a chilling effect on not only defendant’s free speech, but also the public at large,” according to Dilliard’s counterclaim.

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