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When William Harsch, Carolyn Mannis and Karen Davidson began representing a Taiwanese muffin-shop owner fighting to protect her right to free speech — in a classic David vs. Goliath battle — the case struck at the heart of the lawyers’ beliefs in the First Amendment. Although the trio was not on the case when Nancy Hsu Fleming successfully fought a defamation lawsuit, they have spent the last few years of the nine-year case fighting for her right to punitive damages allowed under a Rhode Island state law designed to protect a person’s First Amendment rights when making complaints to the government. The case has grabbed attention nationwide, been before the state supreme court twice, in front of Rhode Island Superior Court on countless pretrial motions, and is the first of its kind in the state. Fleming’s case prompted the state’s General Assembly in 1992 to pass the SLAPP-suit statute, which stands for “Strategic Lawsuit Against Public Participation,” and protects citizens from lawsuits used to stifle their speech. “The whole issue here is the tactical utilization of litigation to silence people. I see in my practice that people who are exercising their rights of free speech are terrified of being sued,” Harsch said. “It’s the underlying principle of free speech that drives me.” The case stems back to 1992 when Fleming wrote a letter to the Rhode Island Department of Environmental Management (DEM) and other state officials advocating the closure of a North Kingstown, R.I., dump because it might have polluted the town’s water. As a result, the owners of the dump on Dry Bridge Road, Charles H. Gifford III, Michael L. Baker and Edward B. Mancini of Hometown Properties Inc., sued Fleming for defamation. The Rhode Island chapter of the American Civil Liberties Union (ACLU) successfully represented Fleming in her defamation suit against Hometown. That portion of her case was decided when the state supreme court in 1996 dismissed the suit on the grounds that it violated Fleming’s right to free speech and also ruled that the SLAPP statute was not unconstitutional. The high court then allowed her to seek punitive damages against Hometown under a provision of the statute. REINFORCEMENTS CALLED IN In stepped Harsch, a former director of the state’s DEM, to handle Fleming’s case on the issue of whether Fleming should be compensated for the violation of her free speech rights. He called in reinforcements in Mannis and Davidson, two lawyers whose strong suits are preliminary motion hearings and trial strategy, respectively, he said. Harsch originally referred the case to the ACLU in 1992 and kept tabs on it until formally representing Fleming. Steven Brown, executive director of the state’s ACLU, said to take on such a long-running case with a history of stumbling blocks takes a “sense of commitment and perseverance on the part of the client and the attorneys.” “This kind of case is not for the faint of heart,” Brown said. “It’s a long and rocky road.” All three attorneys come from differing legal backgrounds, but have united for the common goal of fighting until Fleming gets paid back for having her First Amendment right trampled on, they said. A status hearing is scheduled for May 17, at which a trial date will likely be set for the punitive damages phase of the case. For Mannis, who works as a consultant assisting other lawyers with trial preparation, the Fleming case is a once-in-a-lifetime opportunity. Her passion for the Constitution and a desire to preserve the First Amendment are what keep her pursuing the case. “This case is about fighting for the client, fighting for ideals, even when we’re up against needless and endless litigation,” said the Southwestern University School of Law graduate. “Practicing law is much more fulfilling when you have a case like this.” Davidson remembers reading the Bill of Rights when she was a young girl in school, but not understanding what it really meant until she got older. “This case is the epitome of the First Amendment right to petition the government,” said Davidson, a sole practitioner for nine years. “This case will hopefully make the rights of citizens more clear.” She considers working on the Fleming case as her “duty to the country.” “I’ll do the best I can to uphold the First Amendment,” she said. “I see this as my social responsibility because I believe in the Constitution and the Bill of Rights.” RESISTING FRUSTRATION While it would seem easy to become frustrated with how long the case has taken to get to this phase, the three lawyers said for the sake of their client — and themselves — they can’t afford to. Harsch said when dealing with a protracted case, a lawyer has to hang in there for those breaks that can bust a case wide open. “You can push and push and feel stonewalled and all of a sudden it all falls apart,” Harsch said. In Fleming’s case, a big break came in 1998 when Superior Court Presiding Justice Joseph F. Rodger Jr. ruled that Fleming could seek punitive damages. In his ruling, Rodgers concluded that Hometown’s defamation suit against Fleming was “brought with the intent to inhibit [her] exercise of free speech.” Another turning point occurred last November when on the eve of the jury trial on punitive damages, a Superior Court judge disqualified the firm that was representing Hometown. The Providence, R.I., firm of Goldenberg & Muri was taken off the case after the judge determined that Hometown’s plans to call as a witness one of the lawyers from Goldenberg & Muri constituted a conflict of interest. Since then, Providence attorney Thomas C. Angelone has taken over the case. “You never know when you’re going to get a breakthrough,” Harsch said. “You just have to stay at it.” Harsch, a former deputy associate director of Environment, Energy, Natural Resources, Science and Technology for the federal government, he said he is always interested in assuring that there is responsive and open public participation concerning the government. That, he said, is most satisfying when one has a client like Fleming. Without the perseverance of Fleming, all three lawyers said the case would not have gotten this far. “It makes it easier because of who she is, what she stands for and what it means for the country,” said Mannis, a former public education coordinator for the Rhode Island ACLU. “She is in it for the people.” Harsch added about Fleming, “I admire her tremendously. She sticks up for her rights and to protect the rights of others.”

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