UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
JOSHUA HARMS,

:
:
Plaintiff,
:
:
v.
:
:
CITY OF SIBLEY, IOWA, GLENN
:
ANDERSON, Sibley City Administrator, :
in his individual and official capacity, and :
SUSAN SEMBACH, Sibley City Clerk, :
in her individual and official capacity,
:
:
Defendants.
:
:

Case No: 5:18-cv-4023

VERIFIED COMPLAINT

JURY TRIAL DEMANDED

VERIFIED COMPLAINT
COMES NOW Plaintiff Joshua Harms through undersigned counsel and respectfully
alleges the following:
INTRODUCTION
This civil rights suit seeks to protect the right to engage in core political speech at the
heart of the First Amendment. Plaintiff Joshua Harms—a lifelong resident of Sibley, Iowa who
loves his community and wants to see it thrive—is facing a prior restraint on the content of his
personal website, http://shouldyoumovetosibleyia.com, as well as unconstitutional retaliation for
his criticism of the City of Sibley, Iowa and its municipal government.
Like many small Iowa towns, Sibley has struggled to maintain its population and most
crucially to attract enough well-paying jobs to retain its younger population. To help remedy this
problem, in 2013 Sibley used tax-breaks to lure Iowa Drying and Processing (“IDP”) to move its
operations to Sibley. While fortunately, IDP does employ 26 individuals, unfortunately, with it

1
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 1 of 23

 arrived a pungent and foul odor to Sibley that has been the subject of numerous nuisance
citations and of protracted litigation between IDP and Sibley.
Frustrated by IDP’s odors and by Sibley’s inability to adequately control the problem,
Harms created his website. His goals were to inform the public of the ongoing problem, to
criticize the inaction of Sibley and its officials, and to spur on his municipal government to
finally take action to reign in the odors. Eventually, thanks mostly to Facebook shares,
http://shouldyoumovetoSibleyIA.com went viral by Sibley standards, with over 2000 visits in a
matter of days. Finally drawing the attention of the Sibley city council over three years after the
creation of the website, Sibley City Administrator and Sibley City Clerk gave a presentation to
City Council on Harms website and the alleged Harms it was causing Sibley. Following that
presentation, Defendants directed its attorneys to issue a cease and desist letter to Harms “to get
it down” by threatening litigation unless he altered or removed his website. Reasonably
intimidated, Harms altered his website. Brazenly, the City’s attorneys then further instructed
Harms not to speak with the press about their censorship of his website.
One of the cornerstones of our constitutional democracy is the right of to be free from
prior restraint or retaliation for engaging in protected expression like the website Harms posted
here. But for Harms, this constitutional right was abused by the very public servants who took an
oath to uphold the Constitution.
Accordingly, plaintiff seeks damages and declaratory and injunctive relief to enjoin
Defendants from bringing a retaliatory lawsuit and to enjoin Defendants from prevents Plaintiff
from changing his website and speaking with any reporters interested in speaking with him about
his website or the City of Sibley.

2
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 2 of 23

 JURISDICTION AND VENUE
1. This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988 and the First and
Fourteenth Amendments to the United States Constitution. Title 28 U.S.C. §§ 1331 and 1343
provide this Court subject matter jurisdiction in this matter.
2. The Court has authority to issue declaratory and injunctive relief under 28 U.S.C. § 2201
and 2202 and Rules 57 and 65 of the Federal Rules of Civil Procedure.
3. Venue is proper in the Western Division of the Federal District Court for the Northern
District of Iowa under 28 U.S.C. §§ 1391(b)(1) and (2) because defendants reside in Sibley, Iowa
within the Northern District of Iowa and the incidents giving rise to this claim occurred within
this district.
PARTIES
4. Plaintiff Joshua Harms (“Harms”) was at all times relevant to this Verified Complaint a
resident of Sibley, Iowa situated in Osceola County, Iowa.
5. Defendant City of Sibley, Iowa (“Sibley”) is a municipal corporation organized pursuant
to the laws of the State of Iowa. Sibley and its agents have a legal responsibility to operate
according to the laws of the United States and the State of Iowa, including, but not limited to, the
United States Constitution.
6. Defendant Glenn Anderson (“Anderson”) was at all times relevant to this Verified
Complaint the City Administrator for the City of Sibley Iowa. In his capacity as City
Administrator, Defendant Anderson had a legal obligation to act in conformity with the United
States and Iowa Constitutions and other applicable federal and state laws. Defendant Anderson
is sued in his individual and official capacities. At all times relevant to this Verified Complaint,
he was acting within the scope and course of his employment with the City of Sibley and the

3
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 3 of 23

 City of Sibley City Council. At all times relevant to this Verified Complaint he was acting under
color of the laws of the State of Iowa and the City of Sibley.
7. Defendant Susan Sembach (“Sembach”) was at all times relevant to this Verified
Complaint the City Clerk for the City of Sibley Iowa. In her capacity as City Clerk, Defendant
Sembach had a legal obligation to act in conformity with the United States and Iowa
Constitutions and other applicable federal and state laws. Defendant Sembach is sued in her
individual capacity and official capacities. At all times relevant to this Verified Complaint, she
was acting within the scope and course of her employment with the City of Sibley and the City
Council of Sibley. At all times relevant to this Verified Complaint, she was acting under color of
the laws of the State of Iowa and the City of Sibley.
FACTUAL ALLEGATIONS
Joshua Harms & Sibley, Iowa
8. Plaintiff Joshua Harms is a 28 year old resident of Sibley, Iowa.
9. Harms was born in Sibley, and, apart from a brief period in childhood when he resided in
Ocheyedan, Iowa, he has been a lifelong resident.
10. In fact, most of Harms’s family members also live in or around Sibley.
11. Harms has been a student in Sibley, is now a homeowner in the town, and currently
works there as lead computer programmer at the Keith Merrick Company.
12. In addition, Harms owns his own programming business, Nozzlegear Software, which
builds computer and phone applications and Harms has written a book to help programmers
build applications.
13. Needless to say, Harms cares deeply about the success of his town.

4
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 4 of 23

 14. Sibley is the county seat of Osceloa County and is located in northwest corner of Iowa
approximately eight miles from the southern border of Minnesota.
15. Sibley is the oldest town in Osceloa County, and its population is approximately 2,622
residents.
16. In many ways, Sibley is a wonderful small town: it’s picturesque, its people are friendly,
and for the most part, neighbors support one another.
17. But like many small towns in rural Iowa, Sibley has struggled to retain residents.
18. To remedy this, it has worked to maintain existing businesses and jobs, and to attract new
businesses and jobs to the community.
Iowa Drying and Processing and Sibley’s Odor Problem
19. In 2013, in an effort to lure industry and jobs to town, Sibley and the State of Iowa
provided tax breaks and incentives to Iowa Drying and Processing (“IDP”) to move its
operations to Sibley.
20. IDP operates out of the former Associated Milk Producers Inc. plant at 1020 4th Ave,
Sibley, IA, 51249, employs 26 individuals, and specializes in the contract manufacturing and
processing of food and feed-grade products, such as high-protein animal feed supplements for
companion and domestic animals. In short, IDP makes dog food.
21. IDP’s plant on 4th Avenue is located just a few blocks from Sibley’s downtown business
district and just across the street from the house Harms resided it at the time.
22. The relationship between Sibley and IDP was initially harmonious, but beginning in
2014, soon after IDP became fully operational, noxious smells began emanating from the plant
and wafting over the town.

5
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 5 of 23

 23. The noxious smell subjected the company to numerous complaints from citizens and just
as significantly, numerous citations from the city under Sibley’s City Code 4-3-3(A).
24. Local residents described the primary odor “as rancid and dead animal-like” and that the
smell was and is so strong and foul that it has affected business in the downtown area.
25. In fact, residents have been seen leaving restaurants indicating that the smell was so bad
that they couldn’t muster the stomach to eat. See Ty Rushing, Sibley cries foul over odors
produced by local manufacturer, Sioux City Journal, Dec. 11, 2016, available at
http://siouxcityjournal.com/business/sibley-cries-foul-over-odors-produced-by-localmanufacturer/article_4ee829e1-c40e-5bba-9d80-41ce4823f27b.html [hereinafter “Sibley cries
foul”].
26. Many residents became vocal that IDP was no longer welcome in Sibley:

Credit: Robin Baumgarn/Daily Globe, ‘They’re not welcome here anymore’: Sibley residents
tell IDP they’ve had enough of the smell, Daily Globe, Mar. 28, 2016, available at

6
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 6 of 23

 http://www.dglobe.com/news/3996908-theyre-not-welcome-here-anymore-sibley-residentstell-idp-theyve-had-enough-smell [hereinafter “They’re not welcome”].
27. The nuisance abatement citations issued by the city fined IDP for the offensive odors and
were the beginning of a period of protracted litigation between IDP and Sibley. Rushing, Sibley
cries foul.
28. In 2016, IDP and its attorneys did not appear in court to respond to the nineteen nuisance
citations and the Iowa district court entered default judgments against the company. Baumgarn,
They’re not welcome.
29. Additionally, the IDP odors were so offensive and became such a contentious issue
among Sibley residents that a significant amount of time at City Council meetings was being
devoted to the issue, including abatement hearings, and to residents expressing their concerns
and anger.
30. Despite IDP’s influx of jobs, Sibley residents were so frustrated by IDP’s inability to
resolve the odor issue that many expressed their desire for the Sibley to shut IDP down or for
IDP to voluntarily sell its business.
31. Feeling community pressure, Sibley itself finally filed a lawsuit against IDP over the odor
issue.
32. IDP ultimately counter-sued, and that lawsuit was finally settled or resolved in or around
July 2017.1

1

Even more recently, IDP has sued the City of Sibley, Iowa to challenge its odor ordinance. Nick
Hytrek, Plant owner sues Sibley over odor ordinance, Feb. 20, 2018, available at
http://siouxcityjournal.com/news/local/crime-and-courts/plant-owner-sues-sibley-over-odorordinance/article_98bde1fd-385f-5143-94d4-1847f7421a22.html.
7
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 7 of 23

 Harms & the http://shouldyoumovetosibleyia.com Website
33. Because of his close proximity to IDP, Harms was acutely aware of the IDP’s odor
problem.
34. In fact, the odors were so offensive and obnoxious that Harm could not open his windows
and could not run the AC in his car without being overwhelmed.
35. Harms paid particular attention to Sibley’s response to the problem, reading the minutes
to every Sibley City Council carefully to see what, if any, steps City Council was taking to
address the problem.
36. Like many of Sibley’s residents, Harms was disheartened that despite the nuisance
citations, the City was failing to hold IDP accountable and to ultimately resolve the odor
problem.
37. Harms become so fed up by his belief that Sibley was not taking residents’ concerns
seriously that he did two things: (1) on July 3, 2015, he used his programming skills to build a
website entitled “Should You Move to Sibley, IA” located at the domain
http://shouldyoumovetosibleyia.com; and (2) in August of 2016, Harms, after initially
considering moving out of town to buy a new home and avoid the IDP smell, moved to a
different house on the other side of Sibley in what was an ultimately futile attempt to get away
from IDP and its odors.
38. Harms’s website gave information about the ongoing IDP-Sibley fiasco.
39. The website’s homepage boldly proclaimed “Should you move to Sibley, Iowa? NO.”2

The answer to “should you move to Sibley, Iowa” was “No” from the origin of the website in
July 2015, until March 11, 2016, when, buoyed by the filing of Sibley’s lawsuit against IDP,
Harms optimistically changed the answer to “Not Yet.” Of course, as detailed in this Complaint,
Harms ended up changing the answer to that question one more time, following the City’s threat
of litigation, to “Only You Can Answer That.”
2

8
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 8 of 23

 40. The original version of Harms’s website also contained an automatically updated date
line that read: “Sibley still being polluted as of [the date viewed].”
41. In addition to describing the IDP odor as a “horrible rotten blood and stale beer” smell
and noting that “you can’t escape the stench no matter where you are in town,” Harms’s website
encouraged visitors to attend public hearings at the Osceloa County Courthouse to voice
complaints and to call the Sheriff, the City of Sibley or Sibley City Attorney Harold Dawson’s
office to make a complaint.
42. Harms also occasionally updated the website with news of the ongoing litigation against
IDP, including the fact that IDP’s emissions had been deemed a nuisance injurious to the city
residents’ health, and that despite the fact the Sibley had ordered IDP to deposit $50,000 into an
escrow account to hire an engineer to study IDP operations, Sibley had taken no further action
when IDP failed to make the deposit.
43. Although published in July of 2015, it was not until approximately December 2015 that
the website started to receive significant attention—as posted on Harms’s website, on December
2, 2015, http://shouldyoumovetoSibleyIA.com was viewed 2100 times by 1900 people, the
majority of which were people from the Sibley area.
44. In a town of 2,622 people, that is as big as it gets. By early 2016, Harms’s website had
seemingly gone “viral,” with many Sibley residents sharing the website over the social media
site Facebook.
45. Despite this notoriety, and despite the positive feedback on the website received by
Facebook users, Harms noted Sibley had still not solved the problem and that it was “an
embarrassment that this has been a problem so long.”

9
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 9 of 23

 Sibley Threatens Harms With Litigation Unless He Takes Down His Website
46. Although the website had apparently come to City officials’ attention as early as the
summer or fall of 2015, Sibley directly took up the issue of Harms’s website at the December 11,
2017, City Council meeting.
47. At the December 11, 2017, meeting, Sibley City Administrator Glenn Anderson and
Sibley City Clerk Susan Sembach presented information about Harms’s website to the Sibley
City Council.
48. Anderson and Sembach described the website to council members, indicating that it
contained derogatory and outdated information, and did not accurately reflect the City’s efforts
to resolve a significant amount of IDP’s odor problem.
49. Although the website contained “updates,” Anderson and Sembach said, and therefore
gave the illusion of being current, it was instead, hopelessly out of date.
50. Most importantly, Anderson and Sembach told council that they believed they knew who
the author of the website was, and that they were working with the Sibley City Attorney Harold
Dawson to attempt to get the website taken down.
51. Based upon information and belief, at the December 11, 2017, meeting, Anderson and
Sembach and the Sibley City Council authorized a cease and desist letter be sent to Harms.
52. These occurrences were briefly documented in the city’s minutes for the December 11,
2017 meeting, as published in the local newspaper, the Gazette Tribune, on December 13, 2017,
providing: “Discussed a negative website regarding moving to Sibley that was posted—attorney
sending letter to get it down…” Legals: City Council Minutes, Gazette-Tribune, Dec. 20, 2017,
at 10.

10
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 10 of 23

 53. They were also noted by the local reporter covering the city council meeting: “For
council’s information, Anderson and Sambach gave details about a website
(shouldyoumovetosibleyia.com) that voices concerns as a deterrent to someone considering
moving to Sibley based on the IDP odor issue, that while still not 100% eliminated, has
improved. They think they have determined who the perpetrator is and are working with the city
attorney to attempt to remove the site. The information is outdated, but the website dating [sic]
updates that it looks current.” Sandra Jenson, Sibley City Council discusses Chamber position,
receives positive fund news, Gazette-Tribune, Dec. 20, 2017, at 1.
54. Pursuant to that authorization from Anderson, Sembach and the Sibley City Council, a
cease and desist letter dated December 12, 2017, was sent on behalf of the City of Sibley to
Harms by attorney Daniel E. Dekoter of the law firm of Dekoter, Thole, Dawson, Rockman,
P.L.C.
55.

Dekoter indicated his firm represented the City and that Harms’s website

“libel[ed] the City of Sibley, interfer[ed] with recruitment of businesses and new residents,
and negatively affect[ed] property values.”
56.

DeKoter and Sibley told Harms that if he did not “take down” his website and

replace it with “non-derogatory material” within ten days, Sibley would pursue litigation
against Harms.
57.

Harms received Sibley’s cease and desist letter on approximately December 17,

2017.
Chilled By The Threat of Litigation, Harms Changes His Website & Refrains from
Speaking to the Press

11
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 11 of 23

 58.

Scared by this threat of litigation, Harms immediately sought legal advice in the

form of free consultation from a local Sibley lawyer who referred Harms to a lawyer in Le
Mars, Iowa, so the lawyer wouldn’t be closely connected with Sibley.
59.

Told that making changes or updates to the website would be prudent given the

threat of litigation, on December 19, 2017, Harms made a number of changes to his site,
including but not limited to the following:
a. He changed the answer to his question, “Should you move to the Sibley, Iowa?”
from “Not Yet” to “Only you can answer that”.
b. He added “But if you can't decide, I'll give you my opinion on both the good and
the bad so that you can make an informed decision (emphasis in original)”; and
c. “Throughout the rest of this page, I'm going to do my best to explain that Sibley
has a lot of good things going for it.”
60. In addition to those changes, Harms added a list of things he liked about living in Sibley
to the website.
61. He added text stating that while sometimes still present, odors from IDP are not as
noticeable much of the time.
62. Shortly after receiving the cease and desist letter and making changes to his website, a
local reporter, Lana Bradstream with the Northwest Iowa Review, left a voicemail with Harms
indicating that he would like to speak with him about his website and about Sibley’s threats of
litigation.
63. Almost immediately after that, Harms was contacted by another attorney with Dekoster,
Thole, Dawson, Rockman, P.L.C. asking Harms to meet him for coffee to discuss the website.

12
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 12 of 23

 64. At that meeting, the attorney reiterated Sibley’s request to Harms that he immediately
remove the website because Sibley believed it was hurting the city’s image and was hurting
business in Sibley.
65. In addition, the attorney told Harms that he knew reporter Bradstream was trying to speak
to Harms about this situation.
66. The attorney indicated to Harms that it would not be Harms’s best interest to speak with
and/or do an interview with the Bradstream.
67. In light of this verbal warning and the letter he received from the same firm, Harms was
fearful of what the City would do if he was quoted in the local paper.
68. As a result, Harms called Bradstream back and told her that he could not give her and
interview about his website and what had happened to him.
69. On Saturday, December 30, 2017, Bradstream’s article, “Sibley Officials Mull ‘Negative’
Website,” appeared in The Northwest Iowa Review. Lana Bradstream, “Sibley officials mull
‘negative’ website,” N’West Iowa Review, Dec. 30, 2017 [hereinafter “Sibley officials mull”].
70. Backstream’s article noted that dramatic changes had been made to Harms’s website
recently. Id.
71. Perhaps afraid of the potential legal consequences of their previous outlandish conduct to
censor Harms, Anderson, Sibley Mayor Jerry Johnson (“Johnson”), and Council member Larry
Pedley (“Pedley”) denied to the reporter that they had authorized the letter that was sent to
Harms. Id.
72. Johnson would not identify the sender to Backstrom, but when pressed he did say “[t]here
might be some legal stuff coming down the road” and that this was “a sticky thing.” Id.
73. Sibley City Attorney Harold Dawson also denied sending the letter to Harms. Id.

13
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 13 of 23

 74. However, in the same article, Backstrom quoted Dawson as saying, “the website made it
sound like the [odor] problem was continuing.” Id.
75. The City Attorney attempted to justify the prior unconstitutional censorship by drawing a
line at what he considered to be factual versus opinion statements, stating “It was originally not
an opinion piece, but stated facts that existed two years ago.” Bradstream, Sibley officials mull.
76. Council member Pedley said that Harms’s website was a detriment to Sibley and its
businesses and “[y]ou would do a search of Sibley and end up on that site.”
77. The article closed by noting “[Mayor] Johnson said he hopes the website it [sic]
eventually taken down, even the revised edition.” Id.
78. Because of the City’s instruction to Harms not to speak to the press, despite its own doing
so, the story contains no statement or refutations from Harms.
The Second Sibley Letter & Harms’s Current Fears About Updating the Website
79. In the aftermath of Bradstream’s article, Harms received another letter from Sibley and
Dekoter dated January 18, 2018, that attempted to explain and justify Sibley’s previous threats of
litigation.
80. Saying that Iowa recognized a cause of action for “slander upon title,” Sibley asserted
that Harms’s previous version of the website “disparaged property in Sibley” and contained
knowingly “factually false” statements.
81. Sibley accused Harms “or the lawyer [he] consulted” of “making a stupid argument” by
apparently thinking that Harms original website was speech protected by the First Amendment to
the United States Constitution.
82. At no point did the letter inform Mr. Harms that in fact the First Amendment allows no
such action for defamation by a government against a citizen.

14
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 14 of 23

 83. Although Dekoter and Sibley in one breath indicated that “this letter is not a threat of
litigation and is not in any way intended to deter your exercise of your legal rights,” in the other
it explicitly indicated to Harms that he was only within his legal rights “to publish the web site in
its current form.” (emphasis added).
84. In fact, the January 18 letter reiterated that Harms’s previous website content “affected
the decision of a doctor who was looking at Sibley as a possible home.”
85. Despite Harms’s desire to continue informing his fellow citizens about the IDP odor
problem and Harms’s belief that Sibley was not adequately addressing the issue, Sibley’s letters
together gave Harms the reasonable impression that the City would sue him or not entirely based
on its own arbitrary criteria of whether Harms had engaged in a sufficient amount of speech
positive about Sibley, and how many iterations of the statement that his website represented his
opinion it determined were adequate.
86. Therefore, Harms has not made any additional updates or other changes to his website
since December 19, 2017, despite his desire to do so.
87. As a direct result of the specter of litigation, Harms has been chilled from exercising his
right to criticize his local government in at least the following specific ways:
a. He would like to remove the various statements on his website that it represents
only his opinion and not fact, as well as any other disclaimers he added only after
the threat of litigation first arose.
b. He wants to post the December 12, 2017 letter he received from Sibley on his
website to refute Sibley officials’ denial in the local press that it sent him the
letter.

15
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 15 of 23

 c. He would have liked to, and still would like to, talk to Backstrom after her
original article to correct the record; however, he was afraid that Sibley might find
something Harms said to Bradstream “libelous.”
d. Harms would like to add a form to his website where other Sibley residents could
instantaneously report any incident of continuing odor from IDP.
e. Finally, Harms had planned to purchase the domain “sibleystinks.com”
specifically for reporting IDP odors.
88. Even buying the “sibleystinks.com domain without adding any content scared Harms as
the City was tracking his online life.
89. Sibley’s December 12, 2017, letter let Harms know that Sibley officials knew when he
reregistered his domain and enclosed documents showing Harms’s ownership and authorship of
“shouldyoumovetosibleyia.com.”
90. Harms’s continuing fear of litigation has prevented him from changing or updating his
website, speaking with reporters, and creating a second website to report on IDP odors.
CAUSES OF ACTION
COUNT I
42 U.S.C. § 1983 – CONSTITUTIONAL TORT - FIRST AMENDMENT RETALIATION
– DEFENDANTS SIBLEY, ANDERSON & SEMBACH

91. Plaintiff incorporates by reference the allegations of all paragraphs as though set forth at
length herein.
92. Publicly criticizing the actions of Harms’s city and his city officials is conduct protected
by the First Amendment to the United States Constitution.
93. Defendants’ conduct in authorizing and threatening litigation if Harms did not remove or
change his criticism chilled Harms from exercising that right and constituted unconstitutional

16
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 16 of 23

 retaliation and harassment for Plaintiff engaging in activity protected by the First Amendment to
the United States Constitution.
94. Furthermore, Defendants’ conduct in threatening Harms if he chose to speak with
reporter Lana Bradstream chilled Harms and constituted additional retaliation on Harms’s free
speech rights under the First Amendment to the United States Constitution.
95. As a result of Defendants’ unconstitutional conduct, Harms has suffered damages.
COUNT II
42 U.S.C. § 1983 - CONSTITUTIONAL TORT – PRIOR RESTRIANT ON FREE
SPEECH – DEFENDANTS SIBLEY, ANDERSON & SEMBACH
96. Plaintiff incorporates by reference the allegations of all paragraphs as though set forth at
length herein.
97. Plaintiff has a clearly established right under the First Amendment to publish and/or
publicize information that is critical of his town and of the actions of his town whether that
publication occurs on a website or occurs by speaking with a local reporter.
98. Defendant Sibley’s actions in threatening Plaintiff with litigation unless he removed or
made changes to his website constitute a prior restraint on Plaintiff’s speech in violation of his
First Amendment rights.
99. Furthermore, Defendants’ actions in telling Plaintiff not to speak with reporter Lana
Bradstream constitute a prior restraint on Plaintiff’s speech in violation of his First Amendment
rights.
100.

Finally, Defendants’ restriction on Harms’s ability to create additional websites

critical of the City or documenting instances of IDP odors constitutes an impermissible prior
restraint on his speech.
101.

As a result of Defendants’ unconstitutional conduct, Harms has suffered damages.

17
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 17 of 23

 18

Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 18 of 23

COUNT III
42 U.S.C. § 1983 - CONSTITUTIONAL TORT – VIEWPOINT-BASED RESTRICTION
OF SPEECH – DEFENDANTS SIBLEY, ANDERSON & SEMBACH
102.

Plaintiff incorporates by reference the allegations of all paragraphs as though set

forth at length herein.
103.

Governmental efforts to regulate speech based on the “specific motivating

ideology or the opinion or perspective of the speaker” is a “blatant” and “egregious” form of
impermissible speech restriction. Rosenberger v. Rector and Visitors of the Univ. of Va., 515
U.S. 819, 829 (1995).
104.

Unlike content-based restrictions, subject to strict scrutiny and forum analysis,

viewpoint discrimination by the government of private speech is flatly prohibited—beyond the
reach of government. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994). R.A.V. v. City
of St. Paul, Minn., 505 U.S. 377, 391–92 (1992) (holding that a state may not selectively ban
fighting words on the basis of viewpoint, even though it may ban fighting words entirely).
105.

Indeed, preventing the government from engaging in viewpoint discrimination has

long been the central concern of the First Amendment. See, e.g., Joseph Blocher, Viewpoint
Neutrality and Government Speech, 52 B.C.. L. Rev. 695, 703-05 (2011).
106.

In this case, Defendants singled out Harms’s speech for investigation, retaliation,

and prior restraint based on its “derogatory,” “negative,” and “disparaging” viewpoint.
107.

This outrageous viewpoint based regulation of Harms’s private speech violates

the First Amendment.
108.

As a result of Defendants’ unconstitutional conduct, Harms has suffered damages.

19
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 19 of 23

 COUNT IV
42 U.S.C. § 1983 - CONSTITUTIONAL TORT – CONSPIRACY TO VIOLATE
CONSTITUTIONAL RIGHTS – DEFENDANTS SIBLEY, ANDERSON &
SEMBACH
109.

Plaintiff incorporates by reference the allegations of all paragraphs as though set

forth at length herein.
110.

42 U.S.C. Section 1985(3) provides that if two or more persons conspire for the

purpose of depriving, either directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities under the laws, the party so injured
or deprived may have an action for the recovery of damages occasioned by such injury or
deprivation, against any one or more of the conspirators.
111.

Defendants acted jointly in concert as co-conspirators to unlawfully censor Harms

and restrict his right to free speech by threat of litigation unsupported by the law. Defendants
sought to intimidate Harms, thus seeking to accomplish an unlawful purpose by unlawful means.
112.

Defendants evidenced their conspiracy openly in multiple comments to the press

detailed herein.
113.

This conduct was objectively unreasonable and was undertaken intentionally and

with reckless indifference to Harms’s constitutional rights and the constitutional rights of all
Sibley residents to criticize the government under the First and Fourteenth Amendments to the
U.S. Constitution.
114.

As a result of Defendants’ actions and in furtherance of their conspiracy, Harms

has suffered damages.

20
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 20 of 23

 PRAYER FOR RELIEF
WHEREFORE, in light of the foregoing, Harms respectfully requests the following:
a. A declaratory judgment that the First Amendment protects Harms’s ability to
author and publish his website, http://shouldyoumovetosibleyia.com (in original,
uncensored form), his ability to speak with reporter Lana Bradstream, and his
ability to create a new website, sibleystinks.com, and that Defendants’ threats to
sue Harms for doing so are unlawful retaliation that violates the First
Amendment;
b. A declaratory judgment that the Defendants’ past and ongoing threats of litigation
for the same also constitutes an unconstitutional prior restraint on Harms’s First
Amendment rights;
c. A declaratory judgment that a claim for municipal defamation is not actionable
and there was no legal basis for Defendants to threaten such a claim;
d. An injunction, preliminary and permanent thereafter, enjoining Defendants, their
employees, agents, assigns and all those acting in concert with them, from
bringing a lawsuit against Harms for publishing his website or any website that
criticizes the Defendants and the Defendants actions in conducting city business;
e. An award of compensatory damages against all Defendants, joint and severally, in
an amount to be determined at trial;
f. An award of punitive damages against all Defendants;
g. An award for costs, expenses and attorney’s fees pursuant to 42 U.S.C. § 1988;
and
h. Such other relief as this Honorable Court may deem just and deserving.

21
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 21 of 23

 JURY DEMAND
A trial by jury is hereby demanded.

March 8, 2018.
Respectfully submitted,
s/Glen S. Downey
Glen S. Downey
AT0012428
s/Nathan A. Mundy
Nathan A. Mundy
AT0009065
DOWNEY & MUNDY, PLLC
303 E. Court Avenue
Des Moines, IA 50309
Tel: (515) 288-1552
Fax: (515) 259-7599
glen@downeymundy.com
nathan@downeymundy.com
/s/ Rita Bettis
Rita Bettis, AT0011558
ACLU OF IOWA FOUNDATION, INC.
505 Fifth Ave., Ste. 808
Des Moines, IA 50309–2316
Telephone: 515.243.3988
Fax: 515.243.8506
Email: Rita.Bettis@aclu-ia.org

Counsel for Plaintiff JOSHUA HARMS

22
Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 22 of 23

 I, JOSHUA HARMS,being duly sworn upon oath, do depose and state

that I am the PETITIONERin this matter, and that I have read the
foregoing Verified Complaint and the statements and allegations
therein are true and correct as I verily believe.

J SHUA HARMS

STATE OF
)ss.

COUNTYOF Oscdce
Subscribed and sworn before me this q

NOTRARY PUBLIC, S A

day of mpr€ch , 2018.

9

OF IOWA

.

CONNIESCHWARZKOPF

Commission Numb« 147430

My

9-7-1

Expires

Case 5:18-cv-04023 Document 1 Filed 03/08/18 Page 23 of 23