On Friday, Nashville attorney Daniel Horwitz filed a response to a libel lawsuit initiated by Thunder Air, the real estate company of John “Thunder” Thornton, on behalf of his client, Joe E. Blevins, and a second response on behalf of Ronnie Kennedy, who is represented by Nashville attorney William J. Harbison.
Horwitz answered Thornton’s suits with what is known as an “anti-SLAPP” action. (SLAPP is short for “Strategic Lawsuits Against Public Participation.”) As Horwitz explained in a written statement Friday:
"The Tennessee Public Participation Act — Tennessee’s primary anti-SLAPP statute — was enacted to punish and deter bogus lawsuits exactly like this one. While I understand why Mr. Thornton wants people to stop talking about the fact that he’s trying to build homes on top of abandoned underground mine shafts, the First Amendment prevents him from abusing the legal process to silence his critics. Mr. Thornton is about to learn an expensive lesson about the First Amendment, and he should be sanctioned up to his eyeballs."
“Up to his eyeballs” — according to Horwitz — could amount to as much as $60 million, since the maximum sanction allowed by the Tennessee act is 3 percent of the offender’s net worth. Some estimates put Thornton’s worth as high as $2 billion, which — if true, and if a judge approves sanctions — could prove a high price for attacking the truthful and ultimately innocuous remarks of two men. Both are big ifs.
An East Tennessee development is moving forward on what locals call a ‘Swiss cheese’ of abandoned coal mines
Both Blevins and Kennedy want to make potential buyers aware of the mines below River Gorge Ranch (RGR), Thunder’s massive development on Aetna Mountain near Jasper. Blevins wrote his comments on Facebook; Kennedy made his as an invited speaker at the February meeting of the Marion County Commission, which I covered in two parts for the Scene. A former miner on Aetna and a student of the mining history there, Kennedy called the mountain a “Swiss cheese” of abandoned coal mines. Blevins, meanwhile, posted on Facebook commentary such as, “Lots of abandoned underground coal mines up there,” and in a response to an RGR post, “Gag.”
After Kennedy spoke in February, the Marion County commissioners decided to give Thornton a chance to come to the following meeting and explain any steps he had taken to mitigate, or at least study, the dangers of old mines beneath his luxury homesites. County attorney Billy Gouger told me the response was being prepared by Hal North, Thornton’s Chattanooga attorney, and that if I wanted to learn about mitigation I should call North’s office. I did, and my messages were never returned.
Instead, Thornton’s answer at the March 25 meeting was to parade his minions and two nervous engineers before the crowd to say all was well on the mountain. Thornton assumed the posture of a televangelist, saying he would “do everything right.” Then he sued two dudes for libel. To be clear, he did not sue this journalist, the Scene, or any other publications that have covered the story (which include the Chattanooga Times Free Press and WDEF-TV). He did not sue Mike Bailey, a former forestry employee who spent years working on Aetna and shared for my article his knowledge of mineshafts, mine fires and mine drainage pools there. He did not sue the United States Office of Surface Mining Reclamation and Enforcement (OSM), which placed Kennedy’s old maps into a stunning visual overlay, showing the mines’ locations.
I have my own theory as to why Thornton had North file two incredibly flimsy libel suits against only Blevins and Kennedy, but explaining it requires some brief digression.
After my first and then a second news story on RGR, this is an opinion column. Perhaps that’s obvious to most readers, but I spent decades teaching journalism at a small state university where I met hundreds of students with no idea of the differences between news and opinion. That experience hardwired me into lecture mode.
It was news (technically a news feature, what with description, dialogue and a dash of mythology), but straight third-person journalism all the same, when I quoted Kennedy saying Aetna was “like Swiss cheese.” From a legal standpoint, this figurative comparison was his opinion, protected by the First Amendment. (Still, if you count the holes in an average slice of Swiss, you’ll find fewer than the number of mines in the illustrations from OSM.) It would likewise be protected “hyperbolic rhetoric” if someone wrote that John Thornton was a skunk, a rat or a weasel. No reader would believe the developer to be a small mammal of any sort, and while some creatures have been employed to disparage particular humans, the comparison remains the sort of “loose and figurative” language long protected by the First Amendment.
More details on an East Tennessee development moving forward on Mt. Aetna
It was news when I wrote that the geophysical study Thornton touted as proof of the development’s safety was problematic: The self-described “preliminary” examination found 210 feet of sandstone beneath the surface, but it also listed “mine spoils” that might cause future subsidence, septic failure and other issues. The study failed to address the unstable shale layer and mines lying beneath the sandstone or various shafts dug through the rock to reach mines.
The first line of Harbison’s legal filing on behalf of Kennedy reads: “Thunder’s lawsuit has more holes than Aetna Mountain (or a piece of Swiss cheese).”
Beyond the truth of statements made by Kennedy and Blevins, Horwitz observes in his complaint that much of the libel suit hinges on what struck me as a laughable misuse of the legal term “Libel of Title” (falsely saying someone does not hold legal title to real estate they claim as their own). So why would North draft a complaint so frivolous as to expose his client to anti-SLAPP sanctions, while not suing others who made more serious factual allegations?
The answer, in my opinion (or guess), is twofold:
Thornton wanted to protect an RGR sales event that began the day after the commission meeting.
Kennedy and Blevins are listed as witnesses in an unrelated lawsuit over Thornton’s privatizing of a formerly public county road. If you want to go after somebody to reassure your sales prospects, you might as well go after witnesses against you.
I’m presently working on a third installment concerning River Gorge Ranch, which I plan to fill with well-sourced journalism. I hope no one gets sued over it.
But if they do, I hope Horwitz takes the case.
