Signs of the Times - Free Speech Gets Dumped at Ivy Landfill
October 2000
Freedom of Speech: Free Speech Gets Dumped at Ivy Landfill
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"For reasons that have nothing to do with the environment, local residents should be concerned by the recent settlement of the Ivy Landfill lawsuit.

The arrangement settling the lawsuit between the parties includes a provision that forbids the plaintiffs, from making known any 'opposition' to the Rivanna Waste Authority's plans to seek a permit to build a completely different cell at the Ivy Landfill. 'Opposition' includes 'presenting oral comments at any public hearing in opposition to the permit,' 'making statements to the press' and 'providing another person with written comments oral comments or press statements which are presented in opposition to the permit' for the new cell.

In other words, shut up and make yourself scarce.

While gag provisions in settlement agreements are not uncommon, this is no common gag provision. It isn't a prohibition on speaking abou the alleged past actions that led to the lawsuit (although it effectively does that). It is a bar preventing particular citizens from participating in the political process that will determine what actions the landfill may take in the future. (Actually, that last statement is not entirely accurate presumably these citizens can participate so long as they do no oppose the permnit for a new cell.)

While some might argue (incorrectly in my opinion) that this gag provision would survive First Amendment scrutiny if the defendants attempted to enforce it, such an assertion is irrelevant to the larger policy concern: Do we really want our governmen officials pursuing a policy of limiting the views that can be expressed in the political process?

Such a policy is clearly at odds with the spirit of the First Amendment, if not the law itself.

Four of the plaintiffs in the lawsuit refused to sign the agreement because of the gag provision. They are to be commended for the strength of their convictions. But that should in no way be interpreted as criticism of those plaintiffs who did sign the settlement agreement. The signing plaintiffs may have felt the settlement was the best they could hope for.

As an area resident I would like to know their concerns about the opening of a new cell. Presumably, so too would the Department of Environmental Quality when it makes its decision on the permit for the new cell.

Unfortunately, the defendants in this case appear to believe that we are best left in the dark" (Josh Wheeler, The Thomas Jefferson Center for the Protection of Free Expression, Letters to the Editor, The Observer, October 11, 2000).

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