A federal judge has rejected a defamation lawsuit brought by Pan Am Railways and its former president against a small industry newsletter in a case that First Amendment advocates say demonstrates an important safeguard for the online publishing industry.
Pan Am Systems, Springfield Terminal Railway Co. and its former president, David Andrew Fink, sued Chalmers “Chop” Hardenbergh and his newsletter Atlantic Northeast Rails & Ports, saying the railroad and Fink were defamed in articles published in the newsletter, which is distributed by email. The lawsuit was filed in 2011 in U.S. District Court in Portland.
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Hardenbergh responded that the statements the railroad took issue with were made by other people and quoted in the newsletter. They also represented opinions, not facts that could be shown to be false.
“The motivation … was directly intended to chill the speech of a small publication to prevent the small paper from reporting on events involving the company,” said Russell Pierce, of Norman Hanson and DeTroy, who represented Hardenbergh.
On Tuesday, federal Judge Nancy Torresen sided with the newsletter, granting its request for summary judgment, meaning that the lawsuit did not even get to trial.
Reached at his home in Freeport on Wednesday, Hardenbergh said he was pleased with the victory but that it was a long and time-consuming struggle.
“It’s taken a significant amount of my time, but I’ve enjoyed it because I felt the law was on my side,” he said.
Corporate lawsuits filed to silence critics are not a new threat to free speech, said Justin Silverman, executive director of the New England First Amendment Coalition.
“Defendants without deep pockets are more likely to acquiesce to the plaintiff’s demands because they simply can’t afford to litigate the issue,” Silverman said. “This is a significant concern given the growth of small community-based publications and blogs which report news of public interest. It is important for courts to recognize when a company is bullying a publication into silence and to continue to protect its First Amendment rights.”
Hardenbergh, 69, a former assistant Attorney General for Maine who served in the 1970s, started distributing his newsletter 20 years ago, covering seaport and railroad issues from east of Albany to the Canadian Maritimes. His motivation is environmental – he believes trains are a more environmentally friendly way to move freight than trucks. His roughly 300 subscribers, who pay $459 annually for the email newsletter, are mainly people in the shipping and freight industries or public officials involved in the business, he said.
Hardenbergh’s reporting earned him the enmity of Pan Am’s then-president David Andrew Fink.
“We had been at loggerheads before and in fact Pan Am refused to respond to any inquiries from me as a reporter for several years before the lawsuit was filed,” he said. A company official accused Hardenbergh of being “anti-Pan Am,” which he denies.
“I’m pro railroads, pro railroads getting more business and doing a good job serving customers,” he said.
Just before the lawsuit was filed, Fink’s son took over the business and the railroad has improved significantly, Hardenbergh said.
Pan Am officials did not return a call for comment Wednesday. Pan Am’s attorney, Thad Zmistowski of Eaton Peabody in Bangor, said he would release a statement but none was received Wednesday.
The articles that formed the basis for the railroad’s lawsuit involved statements made by other people that were published in the newsletter.
In one article, a New Hampshire official described a derailment as a “perfectly predictable accident” and said Pan Am’s rail system was “horrendously dilapidated.” In another, an official described the railroad as having broken a promise to provide a certain service. In another, Pan Am was criticized for having “lost” rail cars.
The railroad argued that none of those statements was true, but the judge ruled that the average reader would know the statements to be exaggerations.
Torreson also pointed out that the railroad had previously brought a similar lawsuit against a newsletter in Washington, rather than suing another, larger publication that also printed the information.
The newsletter publisher in that case also won in court, but spent $250,000 in legal fees, Hardenbergh said. He would not say how much his defense cost.
“Like me, he won in the end but he had to sell his house in order to pay those legal fees,” Hardenbergh said.
Pierce said he took the case for a reduced fee because of the principle at stake. The victory is important given the changing media landscape, he said.
“In a way it becomes more important in this day and age as reporting and journalistic activities take place beyond the confines of well-known newspapers and magazines,” he said.
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