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SHORE ACCESS

Claiming ‘censorship,’ ACLU will represent Pawtucket woman who was sued for libel after beach confrontation

James Marsh, a beachfront homeowner in Charlestown, sued Sara McKenna for trespassing on what he considered his property on the beach.NYT

EAST PROVIDENCE, R.I. — The American Civil Liberties Union of Rhode Island will represent a Pawtucket woman who was sued for libel and trespassing after an argument with a beachfront homeowner in Charlestown.

Sarah McKenna will get pro bono legal service from a cooperating ACLU attorney as she tries to dismiss the case. She was sued in state court in August by James Marsh, who said her description of the incident on Facebook was libelous and damaging to his reputation. Marsh also sued her for trespassing on what he considered his property on the beach, a hot-button topic in Rhode Island.

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“The lawsuit, while cast as a defamation/trespass claim, seeks to have a court order Ms. McKenna — who posted statements on an internet discussion board on matters of public concern — to take them down,” Carolyn A. Mannis, McKenna’s lawyer, said in an email. “If successful, this would be a form of censorship, which goes far beyond a monetary award.”

The representation will be limited to the dismissal stage of the case. The first hurdle for a civil court case is usually a motion to dismiss, where a court will decide if the case is viable. If it makes it past that stage, it could eventually reach a trial.

McKenna’s lawyer will argue the case should be dismissed under Rhode Island’s SLAPP law. The law, which stands for Strategic Litigation Against Public Participation, gives people conditional immunity from lawsuits when speaking about issues of public concern. It’s essentially an early exit for suits that are designed to chill free speech on important issues. If a defendant wins under the law, they can recover their attorney fees, or even, in cases where a suit is deemed frivolous, damages against the person who sued them.

“The issue underlying the confrontation at the beach and later postings by Ms. McKenna — public access to Rhode Island’s coastline and beaches — is a matter of public concern,” Mannis said.

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Marsh’s lawyer, meanwhile, said he stands by the case, and that McKenna crossed a line.

The incident in question occurred on June 6, when McKenna went to the beach in Charlestown, as she’s done her whole life. She set up chairs for her and her sister and a sun shade for her 2-year-old son. She said she was between a private home and the water, but closer to the water — a place where she still believes she had every right to be.

According to McKenna, it wasn’t long before a man called from a house in the distance: “Are you aware you’re on my property?”

The man approached her with his two unleashed dogs, she said. McKenna’s sister had gone off to the bathroom. An argument ensued, during which the man called her a “squatter.”

She said she tried to shoo his dogs away, but one went into her bag and grabbed her son’s bagel. According to McKenna’s account to police, the man also said at one point that she’d “have a bad day” if she stayed there.

McKenna tried to call the police, but they did not come. It turned out, police later said, that she’d told them she was at the Breachway State Beach, but when asked to clarify, she gave a more accurate location — about eight houses down from the Breachway side. That message wasn’t immediately relayed to police on scene.

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McKenna’s sister eventually came back and suggested they leave, which they did.

Unlike many beach confrontations, though, that’s not where the story ends. McKenna’s family, upset by the lack of police response, sent a note to the department about the incident a few days later.

Police followed up and eventually identified the man involved in the confrontation as Marsh, who owns a home on Charlestown Beach Road and lives in Avon, Connecticut. Police did not bring charges.

In August, McKenna posted about it in a Facebook group for coastal access advocates. Among other things, she wrote that Marsh “assaulted” her, and included a picture of him from his company’s website. She later told the Globe she was referring to a verbal assault, and she also considered his dogs’ actions, especially going into her bag, to be a problem. But he did not physically make contact with her, she said.

Marsh argues in court papers that she’s implying he committed a crime — one he did not commit. The post prompted commenters to add more information about Marsh’s job and other business dealings, his suit says. Her “patently false” statements have harmed his reputation, he said.

“Ms. McKenna has made a series of very personal attacks on Mr. Marsh,” Marsh’s lawyer, Mark Freel of the firm Locke Lord, said in an interview last month.

By circulating his picture and using the name of his employer, McKenna “crossed a line” and violated his rights, Freel said.

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Marsh is also suing McKenna for trespassing, a thorny issue in a state where there are a lot of questions about where and how to draw property lines along the shore.

Since the lawsuit was filed, more documents have come to light through records requests.

They show that police who were investigating the case found an unnamed source who largely supported McKenna’s account of the incident to police, disputed Marsh’s, and described the situation as “bullying,” according to a police report.

A police officer, Sgt. Christopher Bruso, also wrote in an email to McKenna in June, which was obtained by the Globe: “He knows that we are on to his behavior, and that this third party confirms to me that although perceptions are different, you weren’t greatly exaggerating anything because you were upset.”

Police also said they asked Marsh to identify where the 18.6-year average high tide line is. That’s where the courts in the state have set the boundary between private property and public access to the shore. He could not do so, the report said, but was certain she was on his property.

The officer disagreed. It was close to where the sand grade slopes or drops down, and farther seaward of the seaweed line, the officer wrote. Not only that, but it seemed closer to another home than Marsh’s own, the officer said.

It’s this confounding dynamic along an ever-changing shore that has led Charlestown police to generally avoid trespassing cases on the beach.

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“It would not, in my opinion, be a position where it would be ‘obvious’ or ‘known’ to someone whether or not they were on private or public beach access,” Bruso wrote.

Bruso wrote later in summing up the case: “Concluding this investigation, it is believed that Marsh’s behavior was perhaps uncalled for but falls short of ‘disorderly conduct’ by RI statute as he never threatened (to) harm McKenna or engaged in a fighting or violent or tumultuous behavior.”

In an interview, Freel, Marsh’s lawyer, pointed out the police source who described the incident as “bullying” was not named in the report. He also took issue with the officer expressing his opinions about anyone’s behavior after deciding that Marsh hadn’t committed a crime.

“Once the police department didn’t take any action, that should have been the end of it,” Freel said.

Asked specifically about whether “bullying” had occurred, Freel said he wasn’t aware of a definition of what that term constituted.

But, he continued: “I do think there was not an assault. I think the police appropriately chose to take no action here. I don’t think Mr. Marsh engaged in any inappropriate behavior.”

Freel was also asked in an interview with the Globe whether it’s their position that McKenna was above the mean high tide line that day.

“It’s my position that Mr. Marsh believed she was,” Freel said.

But Marsh is suing her for trespassing. That would mean it’s his legal position that she was above the mean high tide line, right?

“I’m aware of what the complaint says, yes,” Freel responded. “But I’ll let it speak for itself.”

Pressed on this point, Freel added later: “Based upon the information available to us, including from our client and others, we stand by the allegations of the complaint. Clearly, Mr. Marsh believed she was above the mean high tide mark on that occasion.”


Brian Amaral can be reached at brian.amaral@globe.com. Follow him on Twitter @bamaral44.