Land-swap lawsuit defendant seeks documents from media and activists, raising First Amendment objections

By John Ruch

Attorneys for the developer defending a lawsuit over a DeKalb County parkland swap have demanded extensive internal documents as evidence from uninvolved media outlets, activists and neighborhood associations, raising First Amendment free press and free association objections.

The requests – filed by attorneys for Ryan Millsap’s Blackhall Real Estate Phase II, LCC between October and January – largely revolve around the Defend the Atlanta Forest movement that is protesting both the land swap and the City of Atlanta’s neighboring public safety training center site. Court documents show a focus on the Atlanta Community Press Collective (ACPC) and the activist group Community Movement Builders. But Blackhall and in some instances its co-defendant, DeKalb County, have filed similar requests for the national journalism collective Unicorn Riot, the international anarchist movement CrimethInc, the East Atlanta Community Association, and such prominent figures as Atlanta BeltLine planner Ryan Gravel and Bee Nguyen, a former Georgia state legislator and Secretary of State candidate, among several others.

Scenes from the Atlanta Forest, a publishing platform for material self-submitted by protesters, provided SaportaReport with a copy of a document request from Blackhall and said it would not cooperate. The sweeping demand sought, among other things, all internal communications and unpublished photos or videos of protests and any communication with any of the platform’s funders.

The lead attorneys for Blackhall, the County and the plaintiffs – the South River Watershed Alliance (SRWA) and the South River Forest Coalition (SRFC) – did not respond to comment requests. But in a court filing last week, the plaintiffs objected to similar requests about their contacts with protest groups and media, calling them irrelevant, burdensome, and a form of harassment that also “violated their civil rights.”

Lauren Regan, executive director of the Oregon-based Civil Liberties Defense Center (CLDC), said she has offered basic information about document requests and connections to lawyers for multiple third-party entities targeted by the Blackhall demands, whom she said she is not authorized to publicly name. The CLDC provides advice on lawsuits that target activists. Regan said the Blackhall requests fit into a national pattern of using document requests as “bullying and scare tactics” intended to “try to harass and chill and derail successful campaigns and movements,” even though judges typically shoot them down in the end.

“It is a clear red herring attempt,” Regan said of the Blackhall document demands. “Rather than talking about the legality of the land exchange itself, which is very clear and discreet, this firm wants to attempt to muddy the waters and sully the plaintiffs in the eyes of the judge by trying to conflate protest activity and these environmental organizations challenging the legality of the underlying land conveyance. They’re very different things. It’s a smear tactic to attempt to conflate them.”

Regan said her understanding is that several of the third parties “responded to those demands by informing Blackhall that their requests were not allowed under the law.”

Intensifying the First Amendment concern is that such documents could be shared with the County, a government entity that is simultaneously involved in the controversial policing of the protest movement and prosecution of some protesters as domestic terrorists. The County has sought documents from some figures like Gravel but not media outlets, according to court records.

Jane Kirtley, an attorney and director of the University of Minnesota’s Silha Center for the Study of Media Ethics and Law, noted that Georgia has a “shield law” that provides significant protections to journalists against document requests in such cases. She said that when lawyers make such requests anyway the motive could be harassment, but also ignorance of the shield law or a tactic to delay the lawsuit with an ultimately doomed dispute.

Regardless, Kirtley said, media outlets should not automatically comply. “Seeking things like emails [or] other unpublished information – I’d say it’s appropriate and absolutely necessary to fight a subpoena,” she said.

Discovery battles

The requests for production of documents are part of what is known as discovery – the process by which both sides in a lawsuit demand potential evidence from each other. It’s a crucial and often complicated process that can determine the outcome of the case before it ever goes to trial, as both sides see strengths or weaknesses in physical evidence and written and oral material. According to Kirtley, discovery is largely a private process among the attorneys, and any material gathered typically remains secret unless and until it is filed as evidence in an actual trial. The judge typically stays out of discovery unless there is a dispute. The attorneys only file certificates with the court showing who has been subpoenaed or called to provide a statement.

The secrecy of discovery means it is impossible to tell who has responded to Blackhall’s requests or who may be fighting them. At least one, for “Defend the Forest,” appeared to target Defend the Atlanta Forest. That is a movement and not an organization, though someone runs social media accounts and issues press releases under the name. Court filings show that some of Blackhall’s document requests were filed only by email, which may not be valid under Georgia laws calling for the use of certified mail.

Organizers of another group in the court filings, Extinction Rebellion Atlanta, say they dissolved that group a couple of years ago and reformed with a different name. “We have not received any subpoena, although I have no idea where they would send such a subpoena,” said an organizer via a Facebook message. “XR [Extinction Rebellion] Atlanta never had any involvement with the ‘Stop the Swap’ lawsuit, although we have boosted relevant stuff to this [Facebook] page.”

Those circumstances may partly explain why some of the groups appear to be getting informal advice rather than full legal representation. Drago Cepar Jr., an Atlanta civil rights attorney, said he was involved in some of the CLDC’s discussions about the issue, but is not representing anyone because “nothing officially was legally done.” He said the requests to media and activists appeared to be irrelevant.

“That’s not going to make the deed any more or less valid,” Cepar said of such information. “…It was our opinion that this looks like it was sent for the purpose of harassment because otherwise why would you send a request for information that’s not relevant?”

Subpoenas of Atlanta journalists raised similar First Amendment concerns last year when the Fulton County district attorney called at least one to testify in the election fraud investigation of former President Trump. Meanwhile, government treatment of Defend the Atlanta Forest protesters and journalists covering them has raised First Amendment concerns and lawsuits. Cepar represents or advises dozens of activists and at least two journalists in allegedly unconstitutional arrests, including a Unicorn Riot reporter. An underlying claim is that police officers are engaging in a form of counter-protest by making retaliatory arrests for First Amendment-protected activity like filming them or publicizing the protests.

Most of the document requests to media and protest groups have come from Blackhall, but such materials might be shared with the County as a co-defendant, according to Kirtley.

Demands for protest information

The protests are receiving national attention for their challenge to the training center, but they also target the land swap. In the 2020 deal, the County gave Millsap — who founded the neighboring Blackhall Studios filmmaking complex — 40 acres of Intrenchment Creek Park at Constitution Road and West Side Place in exchange for 53 acres of other land to create a new park. Millsap more recently sold the movie facility, now known as Shadowbox Studios, but still owns the 40 acres, which have remained open to the public while the long-term redevelopment plans remain unclear.

Protesters — who call the area the Weelaunee People’s Park — have carried out a wide variety of activities on the land since then with the aim of preventing its redevelopment. They range from people camping in tree houses, community potluck dinners and food distribution to vandalism, arson of a tow truck and blockading of entrances. Millsap’s contractors in turn have plowed down park amenities and trees to remove the protesters.

The SRWA and SRFC filed suit in DeKalb County Superior Court the same year as the land swap, alleging it is illegal on various grounds. The SRWA has been critical about the training center plan as well and is affiliated with a resident who this week appealed its land disturbance permit. That resident is also on the review committee for the training center that was appointed by the Atlanta City Council. The SRAW and SRFC share broadly similar aims with the protest movement, and an unnamed plaintiff was alleged by a local model-airplane group to serve as a go-between with forest-camping protesters.

Such connections appear to be a focus of the Blackhall document requests. Court filings show Blackhall is asking the court to compel the plaintiffs to produce records of such possible ties, while the plaintiffs are objecting. Filings show the discovery period has been extended to the end of this month.

The filings say that Blackhall has made broad requests for documents or written answers for any communications, meetings, participation in protester-organized events or “any affiliation and/or affinity you have” with various protest and media groups, related to both the land swap and the training center. Among those specified in one “interrogatory,” or question-and-answer form, were Scenes from the Atlanta Forest, the protest advocacy media outlet ACPC, Community Movement Builders and Unicorn Riot.

Blackhall also sought information on any donation made by plaintiffs to groups paying bail for protesters of the land swap or the training center, and the reason for it.

The plaintiffs objected to all such questions as a vague “fishing expedition” and as violating First Amendment rights of speech and association. The plaintiffs say Blackhall also said such constitutional rights do not apply because it is not part of the government, but the law nonetheless protects such rights in court processes.

Broad requests are a common tactic of discovery. Blackhall’s attorneys have objected to some similarly broad requests from the plaintiffs. Those include “any and all communications” with “any third party” about the land swap, which includes “any community or neighborhood groups.” The requests do not specify media outlets, though they do not explicitly exclude them, either.

However, Blackhall’s requests are different. They seem to focus on delving into the internal workings of media outlets and activist groups. The motion-to-compel battle includes specific complaints that plaintiffs did not respond to information about contacts with ACPC and the Stop the Swap movement. There are also third-party requests aimed at such groups directly.

ACPC and most other third parties targeted by the demands declined to comment or did not respond to SaportaReport questions. Others listed in court records include the advocacy journalism outlets Abolition Media and It’s Going Down.

Three members or reporters with Unicorn Riot indicated they were unaware of the document demands and requested copies of the court records.

An anonymous spokesperson for Scenes from the Atlanta Forest said its Blackhall letter, sent in October, is being ignored. “We will not cooperate with Blackhall or their counsel,” the spokesperson said. “We will publish all correspondence we receive from Blackhall’s counsel.”

National pattern of ‘bullying’

Regan, the CLDC executive director, said the land-swap lawsuit demands fit into a larger pattern nationwide of corporations hitting back at activists with overwhelming and illegal document requests. She cited as a classic example some of the fallout of the Dakota Access pipeline protests at Standing Rock, a controversy whose national scale and terrorism-charge escalation the Atlanta dispute is quickly approaching. Unicorn Riot was among the organizations subpoenaed in 2021 by pipeline company Energy Transfer in that controversial lawsuit, with another sweeping demand for internal records that drew condemnation from press freedom groups.

In similar cases, she said, the lawsuits are filed by the corporations and are easily dismissed as a “SLAPP,” or “strategic lawsuit against public participation,” motivated as a speech-chilling tactic. In this case, Blackhall and the County are the defendants being sued, but Regan said the similarities in the discovery demands and other tactics remain.

Basic to the tactic, she said, is sending out “a zillion non-party discovery requests and even depositions… and it is solely harassment, bullying and scare tactics. And overwhelmingly, the judges have agreed that is the case.”

“But there are weeks that go by where this person is anxious or this organization is having to retain lawyers and deal with very short timelines to respond in order to protect their associational rights,” Regan continued. There’s also the concern that one might go to an activist “and they don’t know better than to reach out for legal support and they start printing out their emails and sending them in. That’s a real problem.”

The DeKalb case is also similar to situations like Standing Rock, Regan said, in terms of officials promoting narratives and pressing charges about protesters as outside agitators and terrorists, which such discovery requests can play on.

“And it’s really interesting that this legal challenge to the land exchange, I think, has legs,” she said, “and rather than focus on whether or not this was a dirty deal to begin with, they want to go, ‘Look, over here! Terrorists!’”