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PROVO — On the windy shores of Utah Lake Tuesday, community members met to decry a recent lawsuit filed by Lake Restoration Solutions alleging one of the company's most vocal critics made defamatory remarks about its proposal to dredge the lake.
The meeting came just hours after attorneys for Ben Abbott, associate professor of aquatic ecology at Brigham Young University, filed an anti-SLAPP statement and counterclaim.
The driving sentiment during the media event Tuesday — and an argument used in the counterclaim filed by Abbott's lawyers — is that the lawsuit violates the First Amendment.
"It really comes down to one point that needs to be reiterated here: the freedom of speech," said Abbott's attorney, Whitney Krogue.
"Essentially, they are trying to get Professor Abbott to stop talking, to stop saying derogatory comments about them and about their project. ... What Professor Abbott said is fully protected whether he was right or wrong. The marketplace of ideas is sometimes pesky. It sometimes causes people to have hurt feelings," she went on to say.
However, representatives for Lake Restoration Solutions said in a statement that it's not their intention to silence opposition to the project, and that they in fact welcome public feedback.
"We do not ask him to stop participating in the public process or sharing his criticisms and opinions about the Project. ... He has every right to do so, and we have no desire to prevent him from exercising that right. The complaint focuses solely on his defamatory and false statements," the company said.
Lake Restoration Solutions is behind a sweeping proposal they say will combat the toxic algal blooms, invasive plants and fish, and the increasing demand for water from rapidly expanding Utah County, all contributing to the lake's declining health.
The privately funded, $6 billion-plus Utah Lake Restoration Project would deepen the lake on average by 7 feet, and the dredged material would be used to create human-made islands, some for development, recreation and wildlife.
A deeper lake, the company says, means a healthier lake, with cooler temperatures and less algal blooms.
But the project was met with pushback from local environmental groups and scientists, who signed onto a petition to amend HB272, a 2018 bill that effectively allows the state to hand over sections of the lakebed (which will then be turned into islands) if certain conditions are met.
Abbott was a leading voice behind the petition, speaking out against the proposal at city council meetings, on his Twitter and Facebook accounts and his own personal blog. Lake Restoration Solutions is now arguing some of those statements were defamatory.
"Simply put, the law does not support Mr. Abbott's unethical and unlawful behavior," the company said in a statement.
In a Deseret News editorial, company president Jon Benson pushed back on claims that Lake Restoration Solutions had filed a SLAPP suit. "This is simply not true, as the legal process will prove," he wrote.
SLAPP refers to a "strategic lawsuit against public participation."
But in the counterclaim filed Tuesday, Abbott's lawyers argue that he was participating in the process of government, which is protected under the narrow definition of Utah's anti-SLAPP law.
Lawyers for Abbott say he "sought to influence decision-making at the Division of Forestry, Fire, and State Lands, the Office of the Governor, the Utah County Commission, city council members and other decision-makers in Utah Valley, and state legislators," a tactic they say is a "process of government."
They also dispute the allegations that Abbott's statements — including his claim that Lake Restoration Solutions benefits from "shady foreign funding" and has "no scientists on its team" — are defamatory.
SLAPP suits in Utah
Edward Carter, a professor of communications at BYU and a practicing lawyer, said the litigation is still in its early stages, which makes it difficult to determine how it will fare under Utah's anti-SLAPP law.
"Some of Professor Abbott's statements were made to the city council and county commission and even directed at the Utah Legislature. And so those seem pretty clearly covered by anti-SLAPP," he said. "What's a little more unclear would be some of the other statements like blog posts and social media posts."
Carter was not speaking on behalf of BYU during his interview with the Deseret News.
Anti-SLAPP laws are intended to protect defendants from throwing thousands of dollars at prolonged legal fees — if a case meets Utah's definition of a SLAPP suit, it will be dismissed.
These lawsuits aren't common considering the number of controversial projects in Utah with environmental ramifications and stout opposition.
"It's not like hundreds of these are happening every year, given the number of controversial public issues that get discussed," said Carter.
What's relatively new to the judicial system is the use of Facebook and Twitter posts in a defamation suit. Most social media users use these platforms as an extension of their community — but now, instead of a statement that only your neighbors will hear, it's broadcast to thousands of people.
"Regardless of the outcome of the litigation, it's just a good reminder for all of us to know that when we share things on social media, we have a right to express our opinion," Carter said. "But there's a difference between my subjective opinion about what I like and don't like, and making statements that are factual in nature that could be harmful to somebody's reputation."
Anti-SLAPP laws started to gain traction about 30 years ago, with Utah enacting its version in 2001. However the law has been described as "weak" by some organizations who say its definition is too narrow.
Its critics include Abbott, who on Tuesday called on lawmakers "to strengthen our state's anti-SLAPP statute so that all Utahns can confidently participate in discussions about our state's values and future."
