Americans have well-established rights to free speech. But at what point do such activities cross the line into defamation? That's a question currently confronting Michelle Gabrieloff-Parish, a mother of three who lives near the site of Rocky Flats, a facility that once made triggers for nuclear weapons. A powerful law firm has sent her a cease-and-desist letter regarding her criticisms of developments near the plant, threatening millions in liabilities. But rather than zipping her lips, she's retained an attorney of her own and plans to keep speaking out at a weekend event.
"They're clearly trying to quiet any controversy," maintains Gabrieloff-Parish. "They're not just trying to silence me. They really don't want anything about this out at all."
The issues have cropped up in regard to the Candelas development, described like so on the company's website:
Welcome to Candelas The Next Great Place on the Front Range
There is a magnificent sweep of mountain pastureland you'd swear you've seen before on picture postcards of the great American West. This wide-open landscape, this epitome of raw western beauty, is called Candelas. A nearly 1,500-acre master-planned community in west Arvada, Candelas presents a life full of the very things people love most about Colorado. Come live life wide open.
Attorney Jonathan Pray of Brownstein Hyatt Farber Schreck, which represents Arvada Residential Partners with respect to Candelas, declines to comment about the subject, citing the possibility of future litigation. But a letter Pray sent to Gabrieloff-Parish maintains that she made "defamatory statements" capable of affecting "the trade and business of ARP." They're said to constitute libel per se.
"Under Colorado law," the letter states, "to the extent you were involved in the making of these statements, you are personally liable for the full amount of ARP's damages, which could exceed many millions of dollars."
Candelas and ARP had received all the proper approvals and was well underway when Gabrieloff-Parish, who lives nearby, became concerned about the development, not to mention the Jefferson Parkway, an $813 million toll-road project in the area that has been targeted by assorted environmental groups.
As such, Gabrieloff-Parish put up a mini-website, Candelasglows.com. An essay posted there worries that the Candelas and Jefferson Parkway efforts could kick up plutonium particles that were buried as part of the plant's cleanup. After noting the June 1 grand opening for Candelas, Gabrieloff-Parish wrote that "local residents are proposing educating participants about the risks they may be incurring -- for themselves and for the larger community by buying homes so close to a Superfund site."
Candelasglows.com features a version of the invitation to the grand opening -- except with radiation warning symbols on either side.
In addition, Gabrieloff-Parish wrote about Candelas for a post on Elephant Journal. Its headline reads "Green Housing on Plutonium," but its URL features the words "Angelina Jole cuts off both breasts to prevent cancer while we prepare to build housing on plutonium."
In the end, a modest-sized protest took place; Gabrieloff-Parish has provided photos from the event. But on June 19, she received the letter from attorney Pray. The document mentions several statements from her writings -- "a residential development to be built on nuclear waste," for instance. She says all of them were taken out of context.
Then, the letter notes the results of testing on the site done in 2011 that showed the development was safe. Among other things, it stated, "Readings of radioactive decay at Candelas indicate that 'radioactive activity appears to be at background levels.'"
The data doesn't address manyof the issues about which she's most anxious, Gabrieloff-Parish allows. Nonetheless, the document goes on to say: "By sending this letter and the attached documents, you are hereby put on further notice of the actual falsity of these statements you have made."
The letter demands that Gabrieloff-Parish, and two specific organizations said to be affiliated with her (The Environmental Group and the Woodbine Ecology Center), "immediately cease and desist in the making of defamatory statements about Candelas, and remove all such defamatory statements from [their] websites." Moreover, it argues that the placement of the radiation symbols on the invitation constitutes "infringement of copyrighted materials" and demands that she stop using the logo.
Gabrieloff-Parish's reaction to receiving the letter? "My very first thought was, 'Isn't it my constitutional right to say these things?' I really didn't feel I'd said anything defamatory toward their company. I was just voicing concern about development around that entire place. So I took it more as a threat."
To that end, and after discussing the situation with friends and family, she gave her brother permission to put information about the incident on a local lawyer's blog -- and she soon received a response from David Kerr, an attorney who appeared in this space back in 2011 due to his defense of Brian Hill, an autistic blogger taken to court by a company called Righthaven for allegedly using a photo in violation of the Denver Post's copyright. (The case was eventually dropped.)
Last month, Kerr wrote a reply to the aforementioned letter that reads in part, "My client's position is that ARP is seeking to use the threat of protracted litigation and outsized damages -- which your client has specifically pointed out could be in the 'millions' -- in an effort to prevent Mrs. Gabrieloff-Parish from publicly addressing issues of great personal and public concern." Continue for more about Michelle Gabrieloff-Parish and the Candelas development, including additional photos.
The Kerr document goes on to assert that "Mrs. Gabrieloff-Parish's statements are not defamatory" under accepted legal standards, the comments cited as problematic "have been improperly embellished and taken out of context by ARP, altering their true and intended meaning," and her words were "directed to matters of general public concern and were not made with actual malice."
The comments are further described as "privileged political speech" that should be subject to a "heightened standard of deference," as well as being "non-actionable rhetorical hyperbole." Moreover, the addition of the radiation symbols to the company logo are said to have been a "transformative" act of non-commercial political speech, and therefore not a copyright violation.
Thus far, there's been no response to Kerr's letter, and Gabrieloff-Parish hopes that continues to be the case even though she hasn't removed any of the material that prompted the ARP complaint in the first place.
"I feel I totally have the law on my side," she says. "And I feel there needs to be a public debate."
Her latest effort in this respect is scheduled to take place at 11:05 a.m. Saturday, August 10, just west of the Indiana Street and Candelas Parkway intersection in Arvada. The timing and location corresponds to an invitation for a weekend Candelas event sent out to those in the area. The Facebook page for the rally reads in part:
Well, we've been invited to Standard Pacific Homes' Opening Celebration on Saturday. They must not know the history of the land they're building on, so we'll be there to raise awareness -- for the developer, home-buyer and passerby alike.
Join us in our safety suits as we educate the community about the controversial history of the development's biggest & closest neighbor: Rocky Flats (formerly a Nuclear Superfund Site)....
Here are more photos from the June 1 protest.
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More from our Calhoun: Wake-Up Call archive: "Sierra Club labels Jefferson Parkway one of the worst projects in country."