John Giduck Loses Part of His SLAPP Suit Against SOCNET

Law

Back in July I wrote about a lawsuit by one John Giduck against SOCNET, a forum discussing the Special Operations community. Giduck claimed he'd been defamed by SOCNET and its users, who asserted that he'd fraudulently posed as a Special Forces veteran.

Today Giduck lost part [or all - see update below] of his suit: Judge Stephen Groome of Park County District Court in Colorado granted a motion to dismiss by three named defendants. Colorado lacks an anti-SLAPP statute, so this was a plain-vanilla motion to dismiss — that is, an argument that the factual allegations in the complaint, even if true, were legally insufficient to state a claim. The judge's order, courtesy of Guardians of Valor, is here.

Judge Groome's order is quite thorough. It articulates one of the core principles of defamation actions: only false statements of fact can be the basis of a defamation claim. Hyperbole and statements of opinion can't.

It is this tension that has generated numerous cases addressing the first element of a defamation action, i.e. is the statement defamatory. Not every untrue, uncomplimentary or offensive statement concerning an individual is defamatory. Indeed, the law is settled in Colorado that the “mere use of foul, abusive, or vituperative language does not constitute defamation.” 7A Colo. Prac., Personal Injury Torts and Insurance § 32.2 (2d ed.), citing Bucher v. Roberts, 198 Colo. 1, 595 P.2d 239 (1979). Expressions of opinion, as distinguished from assertions of fact, are generally not actionable since “[u]nder the First Amendment there is no such thing as a false idea.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2887, 41 L.Ed.2d 784 (1974). Such statements may be (and in practice almost always are) constitutionally privileged in order to safeguard the vigor and candor of public discourse. “Weighed against the individual’s right to be free from false and defamatory assertions . . . is society’s interest in encouraging and fostering vigorous public debate.” Keohane v. Stewart, 882 P.2d 1293. 1298
(Colo. 1994).

Giduck's complaint — even after he filed the amendment ordered by the court — attacked hyperbole, rhetoric, and opinion, at least with respect to these three defendants:

The statements attributed to these Defendants regarding Giduck were blunt, uncomplimentary, and probably “rhetorical hyperbole.” But they were also privileged statements of opinion protected by the First Amendment as applied in a litany of Supreme Court and Colorado appellate cases. The application of those cases is a question of law that must be addressed by this Court before the case goes any further. Dismissal of the defamation claims contained in the Amended Complaint is required for failure to state a claim upon which relief can be granted.

The Court also ordered Giduck to pay attorney fees under a Colorado statute applying to early dismissal of claims.

It remains to be seen what will happen with the other defendants [or not -- see below]. However, this is a major defeat for Giduck and a major victory for the defendants — and for freedom of expression.

Edited to add: Commenters and tipsters are telling me that the lawsuit has been dismissed against all defendants who were served. Here is a dismissal order applying the same reasoning to three other defendants who also moved to dismiss. I'll look for confirmation that there are no remaining defendants.

Last 5 posts by Ken White

10 Comments

9 Comments

  1. Anony Mouse  •  Dec 4, 2012 @1:33 am

    "vituperative," good word.

  2. Sniper111  •  Dec 4, 2012 @2:27 am

    The lawsuit was also dismissed against McAleer (me), Harrison and Lake as well with language identical to that posted here.

    Suddenly I don't hate Mondays so much.

  3. Leroy Jones  •  Dec 4, 2012 @5:00 am

    The judge dismissed the case against all served, not just the 3 in this response. Groups of those served had different attorneys and this represents only one group.

  4. Josh C  •  Dec 4, 2012 @7:24 am

    What's the advantage of anti-SLAPP over Colorado's awarding court fees on early dismissal? The latter seems better, if only because it generalizes to all cases instead of adding a speech-specific subsystem.

  5. Ken  •  Dec 4, 2012 @8:02 am

    Sniper111 and Leroy Jones: would you be willing to share copies of the orders in your cases?

  6. Nicholas Weaver  •  Dec 4, 2012 @8:29 am

    I have to take a minor objection to the second order:

    The final statement, that “I have come to the conclusion he has opened Pandora’s box of whoopass,” is a metaphorical statement of opinion that Plaintiff has taken on more than he can handle, rather than a statement of fact.

    Actually, I think in retrospect, the plaintiff did open a pandora's box of whoopass, once the lawyer fee charges start coming in. So, in all likelyhood, its become a statement of fact. :)

  7. Fred  •  Dec 4, 2012 @8:55 am

    This suit was a joke from the beginning, just like the plaintiff. Unfortunately, this lawsuit has been a colorful and expensive distraction from the real issue: John Giduck is a charlatan who defrauded thousands of people with exaggerated– virtually nonexistent– credentials and dangerous advice. John Giduck spent years establishing his reputation as a special operations warrior with a keen understanding of the challenges open societies face. He further bolstered his reputation with exaggerated claims of tactical (tacticooool) prowess. He established his reputation through his employees and associates, maintaining plausible deniability as to his authorship of the false claims. The story on Popehat, understandably, only begins with the legal battle. The real story is about how a fraud like John Giduck was peddling crazy shit like "gas delivery systems" and still getting paid by taxpayers to do so.

  8. Sniper111  •  Dec 4, 2012 @2:23 pm

    Ken- no worries at all, I have a copy in pdf.

    If you can provide a point of contact I'll get it out to you ASAP

  9. Cephas Australoscepticus  •  Dec 11, 2012 @4:21 am

    I read everything I was permitted to on the SOCNET site (I don't begin to qualify even as a lurker over there!) about Mr Giduck, and I'd have to say, I sorta feel sorry for him.

    His company was investigated by some of the most talented REAL SF ops on the planet, as a friendly gesture to one of their comrades, and he didn't like the truth to be out there.

    So he did basically everything a slimy, duplicitous douchebag could do, but he forgot with whom he was dealing. That says more about his fake credentials than a stack of affidavits a foot high. Which his business partners and sock puppets tried to shovel on the fire they'd started, with the obvious and natural results.

    You know the kind of guy you're dealing with when his buds post drooling rants about what an outstanding 'warrior' he is (I quite literally have more boots-on-the-ground experience than he did, and I was just a L/Cpl in the cadets!), and how he's so good at what he does that he's 'survived 8 wars' (so did all of us here!), not to mention all the famous people he's been seen with. Seriously. Really, really famous. And important. And tall.

    And after the wonderful, funny, forbearing, philosophical, unsung warrior community had finished playing with this chewtoy, he got all pissy, talked his wife and/or girlfriend into privately threatening individual members, couldn't get his $200,000 wish that way, so opted for the arsewipe option.

    I was going to hope he got what he deserved, but I'm not that mean. Instead, I hope the judge allows 'Big John' to become the official SOCNET chewtoy.

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