City Threatens to Sue Online Gadfly for Complaining About Bad Smells

A web developer's First Amendment lawsuit says Sibley, Iowa, officials conspired to silence him.



When I was a reporter for a South Carolina newspaper in the late 1980s, I wrote a story that delved into possible explanations for the sulfurous smell that often assaulted me as I drove from Charleston to North Charleston. Was it swamp gas? Sewage? Fumes from a local paper plant? The mayor of North Charleston was not pleased by the article, but no one threatened to sue me.

Josh Harms, an Iowa web developer who complained online about the "horrible rotten blood and stale beer" odors emanating from a dog food factory in Sibley, was not so lucky. "If the web site is not taken down within ten days," Daniel DeKoter, a lawyer representing the city, said in a December 12 letter to Harms, "your next notice will be in the form of a lawsuit."

DeKoter did not specify on what grounds the city might sue Harms, although he claimed Harms' website, which said "you can't escape the stench no matter where you are in town," "libels the city of Sibley, interferes with the recruitment of businesses and new residents, and negatively affects property values." In a letter he sent Harms a month later, DeKoter explained that "Iowa recognizes a type of lawsuit called 'slander of title,' which involves disparagement of real estate." By complaining about unpleasant smells in Sibley, DeKoter argued, Harms had committed that tort, leading to "a reduction in taxable value of the property that forms the city's tax base." After threatening to sue Harms for libeling land, DeKoter closed by assuring him that "this letter is not a threat of litigation and is not in any way intended to deter your exercise of your legal rights."

According to a First Amendment lawsuit that the American Civil Liberties Union of Iowa filed on Harms' behalf last week, DeKoter had already accomplished that goal on the city's behalf. Under the threat of legal action, Harms had edited his website, shouldyoumovetosibleyia.com, in the hope of appeasing the city. For example, "He changed the answer to his question, 'Should you move to the Sibley, Iowa?' from 'Not Yet' to 'Only you can answer that.'" Harms added a sentence saying his intent was to "give you my opinion on both the good and the bad so that you can make an informed decision," and he added a list of good things about Sibley. He also noted that the odors associated with the Iowa Drying and Processing (IDP) plant, which had been the subject of multiple nuisance citations and litigation between the city and IDP, were not as obtrusive as they used to be.

Shortly after Harms made those changes, Lana Bradstream, a reporter for The N'West Iowa Review, left a message for him, asking for an interview. Harms' website had attracted a lot of attention in town, and Bradstream wanted to ask Harms about the threats from the city. But according to the lawsuit, Harms decided not to make any public comments about the controversy after meeting with a lawyer from DeKoter's firm, who told Harms that talking to the press would not be in his best interest.

Sibley Mayor Jerry Johnson and City Councilman Larry Pedley did talk to Bradstream, denying that they had authorized a cease-and-desist letter. But the official minutes of the December 11 city council meeting say officials "discussed a negative website regarding moving to Sibley," adding, "attorney sending letter to get it down." A local newspaper reported that City Administrator Glenn Anderson and City Clerk Susan Sembach "gave details about a website (shouldyoumovetosibleyia.com) that voices concerns as a deterrent to someone considering moving to Sibley based on the IDP odor issue, that while still not 100% eliminated, has improved." The article said Anderson and Sembach "think they have determined who the perpetrator is and are working with the city attorney to attempt to remove the site."

The main complaint about Harms' website was that it did not give city officials sufficient credit for alleviating the odor problem caused by the IDP plant, which according to the Des Moines Register produces "a high-protein animal feed supplement made from pig plasma." But instead of simply communicating that concern, city officials conspired to violate Harms' First Amendment rights by threatening him with a frivolous and unconstitutional lawsuit.

"The First Amendment allows no such action for defamation by a government against a citizen," the ACLU notes. "Despite Harms's desire to continue informing his fellow citizens about the IDP odor problem and Harms's belief that Sibley was not adequately addressing the issue, Sibley's letters together gave Harms the reasonable impression that the City would sue him or not entirely based on its own arbitrary criteria of whether Harms had engaged in a sufficient amount of speech positive about Sibley, and how many iterations of the statement that his website represented his opinion it determined were adequate."

The lawsuit says "Harms's continuing fear of litigation has prevented him from changing or updating his website, speaking with reporters, and creating a second website to report on IDP odors." The ACLU argues that the city's threats amount to a prior restraint on speech, viewpoint discrimination, and "unconstitutional retaliation and harassment for Plaintiff engaging in activity protected by the First Amendment." The lawsuit, which was filed in the U.S. District Court for the Northern District of Iowa, seeks a declaratory judgment to that effect and compensation for the violation of Harms' constitutional rights.

"I want to use my skills as web developer to protest and to help my community," Harms says. "I grew up here. My family lives here. I'm trying to make the lives of myself and the people who live here better." He adds that "the right to free speech, especially online, is extremely important to me," and "receiving this threat from the city was the first time I've ever felt afraid that what I might write and put online would make me a target of my own government."

Update, March 29: Today U.S. District Judge Leonard Strand issued an injunction that orders the city of Sibley to refrain from threatening Harms or trying to stop him from talking to the press. The ACLU of Iowa says the city also has agreed to provide First Amendment training for its staff, give Harms a written apology, and pay him $6,500 in damages, plus $20,475 for attorney fees.

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  1. So Sibley, Iowa, smells like Carrie’s prom.

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  2. THAT’S the way to fix the stink! Sue anyone who mentions it!
    Gone in a minute.

  3. Re: the stench in Charleston: “pluff mud,” the southern euphemism for rotting invertebrate carcasses exposed in the tidal mudflats at low tide. As a former resident, I can testify that those mudflats stretch many miles inland, so you can be all the way up in North Charleston and still be affected by tides. Also, the kraft paper mill and chemical refinery stink pretty bad too, thanks to the sulfuric acid process used to turn woodchips into pulp.

    1. The Great Salt Lake is home to millions upon millions of brine flies. When it rains in the Wasatch Mountains, the fresh water forms plumes in the salt lake and the brine flies die by the millions from osmotic shock.
      One brine fly dying really doesn’t smell. Millions do.

      1. “One brine fly dying really doesn’t smell. Millions do.”

        And how about dying gadflies? How do dying gadflies smell? How many dead gadflies does it take, to raise a stench?

        “City Threatens to Sue Online GADFLY for Complaining About Bad Smells”

        I am UTTERLY “osmotically shocked” to learn that MY “Government Almighty” (which I had thought Loves Me Dearly) would THREATEN a person for speaking his or her mind! “In my humble opinion” this calls into question, the entire edifice of Government Almighty’s “love” of us all! Or, am I too terribly harsh, here?

    2. You just had to go and mention woodchips. Now I’m triggered.

    3. Paper mills, man, those stink. Nearby town had one growing up. Always hated going there, and never understood how anyone could live there.

      1. Milwaukee, Wisconsin has a Red Star Yeast plant, you do not want to be down wind of it.

        1. Back when Kodak used to make paper and film and developing chemicals and whatnot near me, the smell was something else. The hues of the smoke coming out of the smokestacks varied each day from pink to gray to green and each one had an individual flavor.

          1. Aesthetically pleasing pollution! The nearby HOAs couldn’t complain..

      2. They could live there because what you thought was stink was actually the smell of money.

    4. Pulp mills always smell like old cabbage to me. Yes, Tacoma smells like cabbage.

      1. “Tacoma, the Indian word for ‘what’s that smell?'”

    5. As a southeast coast resident myself, I have to admit growing to like the smell of rotting sea life (plant and animal). It’s reminder that you are at the ocean. My mind makes an immediate ocean=vacation link.

  4. “this letter is not a threat of litigation and is not in any way intended to deter your exercise of your legal rights.”

    But wait, you said:

    “your next notice will be in the form of a lawsuit.”

    Are all lawyers dumb?

    1. Dishonest, not dumb.

      1. In my experience, many of them are both. Then again, there are a lot of lawyers in the U.S. so I’m sure there must be some honest smart ones somewhere.

        1. I thought the dumb ones became judges and politicians.

          1. Or government workers.

          2. But I repeat myself.

        2. There are honest lawyers. They both practice in Alaska.

    2. NO. But they expect prospective jurors to be – – – – – –

  5. Reason #1 not to move to Sibley, IA. Apparently the town is run by a bunch of jerks.

    1. :nuclear lawsuit launch detected:

    2. Hard to say. On the other hand it’s nice enough that the town has nothing better to do than troll the internet.

    3. Isn’t that just down the road from Freehold?

  6. “Harms decided not to make any public comments about the controversy after meeting with a lawyer from DeKoter’s firm, who told Harms that talking to the press would not be in his best interest.”

    Never take legal advice from the other side’s lawyer!

  7. Smells a lot like the Streisand Effect.

  8. Maybe Harms could just refer to DeKoter as Prince Charming, as in “can’t speak a word when you’re full of ‘ludes”.

  9. Harms decided not to make any public comments about the controversy after meeting with a lawyer from DeKoter’s firm, who told Harms that talking to the press would not be in his best interest.

    Based on what I see in the picture, one gets the impression Harms doesn’t have a lot to lose in a lawsuit. He should run straight at the city with guns a’blazing.

  10. Time to cut government at ALL LEVELS by at least 50%, and time to eliminate ANY lawsuit that attempts to silence speech.

  11. New civic motto: “The smell isn’t as bad now, and you’ll get used to it.”

    ALTERNATE MOTTO: “Come for the stench, stay for the censorship!”

  12. Rip ’em a new one, Josh. Godspeed.

  13. Sadly, he can no longer rely on the truth being a valid defense.

  14. Why does this remind me of “Love Canal, The Truth Leaks Out”?

  15. Sounds like someone should demand satisfaction by slapping this liar lawyer & then taking him outside for a duel

  16. After visiting the site, I wouldn’t call Harms a web developer. The site – regardless of content – does not have any semblance of being the product of a professional developer. I know that anyone can sign up for a WordPress site, register a domain name, and throw up some content. That doesn’t make them a web developer.

    That irrelevancy aside, I wouldn’t move to Sibley based on the actions of their officials alone. Statists of the first order.

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