SILVER CREEK, N.Y. — In July 2018, 2 On Your Side aired a report about an un-neighborly dispute in the Chautauqua County town of Hanover, which began over Jeff Martin's chickens getting into his neighbor's yard.
It escalated when the neighbor, Todd Schilling, started putting up swastikas and other signs with vulgar language on his fence facing the Martin's yard in full view of Martin’s young children.
Now Schilling is being sued. But not by the Martins.
A lawsuit filed by Catherine Kaicher, who lives in nearby Forestville, claims that she is “shocked, disturbed and distressed on a daily basis by the affront to civility of the display.”
Schilling told WGRZ-TV that Kaicher is a friend of the Martins, and that they likely “put her up to it.”
"Has she been under a rock all these years?” asked Schilling, noting the display on his fence has been up for well over a year and that no one else has thought to sue him over it. “Now all of the sudden she drives by and sees that and she's smeared?"
Local government officials have already weighed in, and they say the signs as presented – featuring symbols associated with the Nazis – don’t violate any existing ordinance and that they are protected as a form of free speech.
But Kaicher's Rochester-based lawyer told the Democrat and Chronicle that while the government can't impede free speech, there's nothing from stopping a private individual from suing if it causes them duress.
"This isn't the government," attorney Jeffrey Wicks told the D&C. "This isn't the government restricting his rights. These are two private properties."
Could she prevail in court?
“This would be a very difficult lawsuit for the plaintiff to win,” countered Buffalo based attorney Paul Cambria, a nationally noted First Amendment attorney who is not associated with the case.
“The lawyer who filed the lawsuit on the woman’s behalf argues this involves a private person so the First Amendment doesn't apply. … And generally the government has to be involved for the first amendment to be applied,” Cambria said. “But because you go to the court system and you're asking the court system to punish the person for their speech, that's enough connection to the government for the First Amendment to apply.”
Cambria also noted that, according to the Supreme Court, the standard for success in such a lawsuit would have to be establishing that the display put up by Schilling presents “an imminent and likely danger that this speech will cause lawlessness.”
While Cambria says he too would be upset if he encountered such a display as Schilling's, in this case he would advise the plaintiff to, “drive in the other direction, not drive by the flags, and avoid the speech because it's going to be very tough for the courts to intervene.”
Simmering dispute shows no sign of cooling
“Anyone can file a frivolous lawsuit,” said Schilling, conceding that he may now have to spend time and money defending himself in court. “But I can’t just cave in. This is a matter of free speech.”
Schilling says he has thought about taking the symbols down, but at this point is unlikely to do so, especially when he claims the Martins continue to engage in a pattern of harassment toward him.
According to Schilling, these include having parked a broken down old dump truck next to his property and attacking him on social media, where it’s been inferred that he is everything from a Nazi sympathizer to a child pornographer, both of which he denies.
“My flags are not appropriate, I’ll admit that,” Schilling said. “But when someone tells me I have to tear them down, then we’re in a dictatorship.”
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