When a developer sued Mount Pleasant in 2016 over a zoning decision, a half-dozen town residents who had spoken critically about the development received subpoenas and became unwilling participants in the case.
“That just happens to be one example where lawsuits can be used to stifle public participation," said David Shimp, who was among those receiving the notices.
“Merely because, with several neighbors, we had the audacity to discuss this issue in public with elected lawmakers, we got slapped with subpoenas," he said.
Shimp lives in the Simmons Pointe condominium complex where he and other residents were upset about a development next door along Ben Sawyer Boulevard called Sullivan's Pointe.
The subpoenas demanded residents' communications, including Facebook and Twitter posts, to or from other residents of Simmons Pointe, the homeowners association, the town, elected officials, appointed members of the Board of Zoning Appeals and others.
The lawsuit by developer Ashton Woods also sought to subpoena two leaders of the Save Shem Creek group, an influential voice on growth-related issues in the town.
The lawsuit ended up getting settled. But this year, largely due to that incident, Mount Pleasant Town Council urged state lawmakers to pass a bill called the Citizens Participation in Government Act of 2018. The bill is what’s known as anti-SLAPP legislation, aimed at preventing “strategic lawsuits against public participation.”
"This is an important piece of legislation which protects the First Amendment rights of our citizens within the Town of Mount Pleasant, but more importantly can further strengthen the thread of democracy throughout the entire state of South Carolina should it be adopted by our state Legislature," Councilman Jim Owens said in a February email.
State Rep. James Smith, D-Columbia and a candidate for governor, introduced the bill that month. It was referred to the House Judiciary Committee where it quietly died for the remainder of the current legislative session.
“Things just get backlogged," said Rep. Mike Sottile, R-Isle of Palms, a co-sponsor of the legislation.
He said lawmakers were busy dealing with the nuclear plant issue, pension funding and education funding, among other things.
Two lawyers who represented Ashton Woods in the Mount Pleasant lawsuit declined to comment.
“The main reason I supported it is, Mount Pleasant is in my district and the mayor asked me to support it," Sottile said. "My understanding is, it’s basically to allow citizens to come and express their opinion publicly without any reprisal. To me, that’s how it should be."
Most states agree.
Anti-SLAPP legislation is in place in more than half of U.S. states and Washington, D.C. It's a legal protection with support from both sides of the political divide. Other backers include civil liberties groups, press organizations, and the American Legislative Exchange Council — a conservative group tied to the billionaire Koch brothers, which is influential in Republican-majority state legislatures.
The South Carolina bill offers possible immunity from civil lawsuits to people sued for "acts in furtherance of the exercise of the constitutional right to free speech, right to petition, or right of association" if the exercise of those rights were "aimed at procuring a governmental or electoral action, result, or outcome."
It would not have prevented parties in a lawsuit from issuing subpoenas, as was done in the Sullivan's Pointe lawsuit, but Shimp said passage of the legislation would have been a step in the right direction.
At issue in the Sullivan's Pointe case was a town zoning ruling and stop-work order that said five townhouses in the rear of the 21-home development were too tall and too many stories. The legal dispute raised questions about whether parking areas under the homes should count toward the height and number of stories of the townhomes, which were elevated because they were in a flood zone.
The developer's lawsuit said the town had signed off on the plans and issued permits.
Following a settlement of the lawsuit, in which no money changed hands, the five too-tall townhomes were demolished, and the town agreed that their replacements could have three living floors above parking areas so long at the buildings didn't exceed 40 feet from ground to rooftop.