Editor’s Note: This press release from CELDF (Community Environmental Legal Defense Fund) describes a gag order put against an activist, Tish O’Dell, for talking about her concerns on the use of an industrial byproduct in her community. The gag order was placed in 2012. Since then, tests have affirmed that not only was the product toxic, it is also high in radioactive elements. Lawsuits by big corporations against activists are one of the tools used to shut down any form of resistance. We have talked about it also in the context of the lawsuit against activists and tribal members involved in protecting Thacker Pass. After a decade during which new research has been conducted, Tish O’Dell has appealed for a termination on the gag order.
FOR IMMEDIATE RELEASE
June 19, 2023
Contact:
Terry Lodge, Attorney CELDF
419-205-7084
tjlodge50@yahoo.com
Tish O’Dell
tish@celdf.org
440-552-6774
OHIO, Cuyahoga County – On Friday, June 16, a motion was filed in the Cuyahoga Court of Common Pleas for relief from judgment for Tish O’Dell to terminate the permanent injunction from a Strategic Lawsuit Against Public Participation (SLAPP) filed against her in March 2012 by Duck Creek Energy which claimed defamation and loss of business profits.
O’Dell had been active at the time, educating both her community, elected leaders and neighbors about the harmful effects of urban oil/gas drilling happening in her community of Broadview Heights and surrounding communities by sending emails, posting information online and attending community meetings. In the process, she had learned of Duck Creek Energy’s road de-icer, AquaSalina, which according to Duck Creek Energy President, Dave Mansbery, was a byproduct of oil/gas drilling. O’Dell’s concern increased upon learning, from test results reported to the Ohio Department of Natural Resources (ODNR), about the high levels of substances like benzene, toluene and ethylbenzene contained within the supposedly harmless de-icer. These substances are known to be carcinogenic. She also continued to conduct more research on ODNR’s website and in other places in order to inform herself and educate others as to what takes place during the drilling process and fracking.
“When I learned that AquaSalina was being used on my community’s streets as well as in neighboring communities, I wanted to inform people about what I had learned,” said O’Dell. “I felt people needed to know what was being spread on the roads that they, their kids, and their pets were walking on. And common sense indicated to me that what is spread on our streets gets into our air and our lawns and goes down street drains to water supplies. I knew the oil/gas industry was powerful, but I also believed in my right and everyone’s right to free speech and the right to question the government and their decisions. I had never heard of a SLAPP lawsuit until there was a knock at my front door and the person asked if I was Tish O’Dell and told me ‘You’ve been served’.”
After a year of court filings, depositions, and much pressure directed against O’Dell’s inclination to go to trial, a settlement was signed in the fall of 2013. Part of the settlement involved granting a permanent injunction, an extraordinary remedy in a defamation case, against O’Dell, prohibiting her from using certain words to describe the product AquaSalina. During this time Mansbery began bottling and selling the product on store shelves in local hardware stores and even at several Lowe’s locations in Ohio. This afforded activists and scientists the opportunity to purchase the product and begin testing it. And in the decade since, there has been much research and testing of the product by the state agency ODNR, universities, Rolling Stone Magazine and other publications. The tests affirmed that not only was the product chemically toxic, it is also high in radioactive elements, Radium 226 and 228. In October 2021 the Ohio Department of Transportation stopped using AquaSalina in part because of the environmental concerns.
Because these recent test results and scientific research papers didn’t exist in 2012, O’Dell is filing this motion to dissolve the court order so she can again speak freely and warn people about the dangers of this product to both humans and nature. There have been several attempts over the past few years to pass a law at the state level which would make a commodity out of this drilling byproduct. And with the state opening up leasing of park land for fracking this year, there will be more brine produced.
“SLAPP suits are just another tool used by industry and corporations to silence and intimidate those who speak out against them and their activities,” stated Wyatt Sugrue, Chicago attorney. “The goal is not only to silence journalists, individuals and organizations, but to also make others afraid to speak up. In recent years there have been high profile cases of SLAPP suits against John Oliver and HBO, Mother Jones Magazine and recently Texas Gubernatorial candidate Beto O’Rourke who was served with a SLAPP by the CEO of Energy Transfer Partners, Kelcy Warren.”
As stated in the motion:
The Ohio court system has in essence allowed a limited-purpose public figure, Duck Creek Energy, to immunize itself from public scrutiny, and the court system is acting as the personal police force for the company to stop such scrutiny.
“What I have learned over the past decade is how our system, controlled by an elite minority, is quashing the people’s constitutional rights. I witnessed this first hand working with so many great people across the state who were also attempting to protect their own communities and nature. They inspired me to do this,” stated O’Dell. “I can’t just tell others to stand up for their rights and what they believe in and to have courage even when it seems scary, and not practice what I preach.”
A recent article by EarthJustice, September 2022, sums it up, “We aspire for the courts to be an institution that upholds the rights of all, however, SLAPP suits are a way for the rich and powerful to abuse the court system and turn it into a tool that silences individuals and organizations. SLAPP suits disguise themselves as legitimate lawsuits, and while most end up being dismissed, their real goal is quashing legitimate dissent and protest in the process. Protesting is one of the cornerstones of our democracy, a right so important in the early days of our country that it is explicitly included in the first amendment. One thing is clear. Our courts must uphold this right for everyone and cannot become tools for the rich and powerful to abuse power and limit the ability of all of us to seek justice and speak out against issues impacting our communities.”
In the O’Rourke SLAPP, it has been discovered that Warren, the plaintiff, has also made campaign contributions to six of the nine Texas Supreme Court Justices that could ultimately hear the case.
According to CELDF Attorney Terry Lodge, “Ending the gag order on Tish O’Dell is important to our work as an organization. CELDF works with community members and activists throughout the state and country to assert their constitutional and democratic rights to expose harms and stand up for protecting the community and nature. If the wealthy and powerful can file lawsuits to silence their voices, those must always be opposed.”
Photo by Kilian Karger on Unsplash