Victory For Blogger Patterico In Free Speech Case

Law

Patrick Frey, also known as Patterico, has been living under the cloud of a frivolous, censorious, and thoroughly contemptible SLAPP suit seeking to chill his First Amendment rights.

Today he won.

Background

Since last year it's been my privilege to work alongside the formidable Ron Coleman to defend Patrick pro bono against the federal lawsuit Nadia Naffe filed.

Ron and I filed motions seeking to dismiss Nafe's original federal complaint. In December United States District Court Judge George Wu granted our motion to dismiss, but without prejudice — that is, he gave Naffe once chance to amend to see if she could state a valid claim.

We moved to dismiss her amended complaint on a variety of theories. Today we won. Judge Wu's tentative ruling with the meat of his decision is here, and his order of today confirming his tentative is here.

The Issues and The Ruling

I'm not going to explain the legal issues at length. I attached all the pleadings from the first round of briefing before, and the pleadings this time are below. If you want to get a sense of the case, I recommend reading our anti-SLAPP motion, our Motion to Dismiss under Rule 12(b)(6), and Judge Wu's order.

In brief: Naffe sued Frey for a violation of civil rights by the state under 28 U.S.C. Section 1983 (on the frankly ridiculous and disingenuous theory that he blogs as a Deputy District Attorney rather than as a private citizen), invasion of privacy through public disclosure (because Frey published on his blog deposition transcripts that were available in public court records online), false light invasion of privacy, defamation, intentional infliction of emotional distress, and negligence. In her amended complaint she sued the County of Los Angeles on a theory of negligent supervision. She originally sued Patrick's wife for no discernible reason, and sued the former District Attorney of the County; this time it was just Patrick and the County. She had two theories of why she could be in federal court: because there was a federal question (her Section 1983 claim) and because there was diversity of citizenship (she's in Massachusetts, Frey's in California; diversity requires different states and at least $75,000 in damages).

We filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) (which argues, essentially, that even if everything in the complaint were true, she hasn't described a legal wrong), an anti-SLAPP motion under California law (arguing that her state law claims were attempts to censor speech, and that she could not succeed on them), a motion to dismiss her state law claims under Rule 12(b)(1) (arguing that she can't show $75,000 in damages, as is required for federal diversity jurisdiction, so there's no jurisdiction over the state law claims if her Section 1983 claim fails), and a motion to force her to post a bond under California law (in California, you can make a plaintiff from another state post a bond to cover costs if you win).

Federal judges tend to be conservative with jurisdiction: that is, they take only cases they must, and address only issues they must. Judge Wu ruled that (1) Naffe can't succeed on her Section 1983 claim — her only federal claim — because she didn't state facts showing that Patrick was a state actor when he was blogging as "Patterico", and (2) he wouldn't exercise jurisdiction over the state law claims, because Naffe failed to show that she suffered at least $75,000 in damages, as required for diversity jurisdiction. Based on those rulings, the judge didn't need to reach the anti-SLAPP motion or the bond motion.

The Result

The result: the Section 1983 civil rights claim is dismissed with prejudice, meaning Naffe can't re-file it. The state law claims are dismissed, but Naffe could re-file them in state court if she wanted. If she does we will file an anti-SLAPP motion there as well — and a motion for sanctions against both her and her attorneys. Naffe has already filed a notice of appeal, suggesting she may pursue an appeal in the Ninth Circuit rather than re-filing in state court. Bring it.

The Conduct of the Case

One of the most frustrating things about the case was that Naffe and her attorneys misrepresented the content of relevant blog and Twitter posts to the Court to suggest that Patrick was purporting to blog in his official capacity as a Deputy District Attorney, when in fact the documents showed the exact opposite. The best summary of what I mean is at pages 9-11 of this brief and page 2-3 of this brief. Even though we made that point very strongly, Naffe — tellingly — did not respond at all in her opposition briefs. It's rather unusual not to answer an accusation that you've attempted to mislead a federal judge Judge Wu noticed it as well. We didn't raise the issue of sanctions, but he did on his own. In footnote 5 he noted:

In paragraph 39 of the FAC [First Amended Complaint] Plaintiff quotes Frey as saying the following: "You owe [O'Keefe] @gamesokeefeiii a retraction. A big one. You'd better issue it promptly. [A threat made as a Deputy District Attorney]." FAC 39. The Court may consider the text of Frey's actual statement in connection with a Rule 12(b)(6) challenge. See Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006), Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001.). Notwithstanding Plaintiff's use of quotation marks, the language "[A threat made as a Deputy District Attorney]" does not appear in Frey's actual comment. See Frey Decl. (Docket No. 40), Exh. KK, at 266. The Court would consider issuing sanctions against Plaintiff and/or her attorneys for the contents of paragraph 39. [emphasis added]

And there's footnote 7. Noting that Frey wrote a tweet saying "My first task is learning what criminal statutes, if any, you have admitted violating," Judge Wu wrote:

In her Opposition brief, Plaintiff characterizes this as "Frey issu[ing] a direct threat against Ms. Naffe with Frey stating that he intended to investigate Ms. Naffe for possible criminal misconduct." Docket No. 53, at 11:18-21. Again, sanctions may very well be in play for Plaintiff's (and/or her counsel's) willingness to play fast-and-loose with the language that is actually at issue here. [Emphasis added]

Though Judge Wu did not ultimately award sanctions, I look forward to quoting those words on appeal or in a state court motion for sanctions if Naffe re-files there.

Closing Thoughts

It's been an honor to represent Patrick pro bono. It's been a privilege to work with and learn from Ron Coleman. I appreciate the opportunity.

Observing commentary on the case has been . . . interesting. I'd divide the coverage into three camps. There are people who are supportive of Patrick, but whose coverage really doesn't delve into the legal issues. There are the vapid and dishonest partisan hacks who attack Patrick for political reasons, and who don't address the legal issues at all. There's the greasy, demi-literate, demented Hutt who wrote an extended quasi-sexual fantasy about a mob murdering Patrick and me. Fun!

There are many people out there who support free speech, so long as it's free speech they agree with. That's not really supporting free speech. It's nice that people on the right supported Patrick's free speech — I wish they all supported vigorous political speech from the left as well. I would also have been happier if more people on the left supported Patrick — or, at least, treated the stark free speech issues presented in the case seriously. I didn't defend Patrick because I always, or usually, or even often agree with him. He's to the right of me politically, and a prosecutor (and therefore reliably wrong on criminal justice issues), and I often disagree with him. I defended him because the First Amendment that lets him speak freely lets me speak as well. I defended him because malicious, frivolous, and politically motivated lawsuits aimed at censorship make it a little more dangerous for each of us to speak. I defended him pro bono because frivolous lawsuits can effectively censor people even when they eventually fail, because the expenses of lawsuits can be ruinous.

If you are happy with this result, and if you are happy that lawyers will represent people pro bono in free speech cases, I ask this favor: next time you have the chance, stand up for the free speech of someone whose views you despise. Speak up and fight back when someone advocates censorship. Respond to the Popehat Signal, or to any of the opportunities out there to support free speech — even speech that angers you. Even if you don't like this result, or you don't like Patrick's politics, or mine, I respectfully challenge you to review the free speech issues in the case. Think about them carefully and ask yourself: could I be accused of defamation and intentional infliction of emotional distress for vigorously challenging someone with whom I disagree?

Thank you.

Appendix: Documents From This Phase Of The Case

Operative Complaint

Nadia Naffe's First Amended Complaint

Patrick's Motions

Anti-SLAPP Motion

Motion To Dismiss Under FRCP 12(b)(6)

Motion to Dismiss For Lack of Jurisdiction Under FRCP 12(b)(1)

Motion For Bond

Declarations and Exhibits

Supplemental Declarations and Exhibits

Request for Judicial Notice

Naffe's Opposition Briefs

Opposition to Motion to Dismiss Under Rule 12(b)(6)

Opposition to Anti-SLAPP Motion

Opposition to Motion to Dismiss for Lack of Jurisdiction Under FRCP 12(b)(1)

Opposition to Request for Bond

Declaration of Nadia Naffe in Support of Opposition Briefs

Patrick's Reply Briefs

Reply In Support of Motion to Dismiss Under Rule 12(b)(6)

Reply in Support of Anti-SLAPP Motion

Reply in Support of Motion to Dismiss for Lack of Jurisdiction Under FRCP 12(b)(1)

Reply In Support of Motion for Bond

Judge Wu's Ruling

Tentative Ruling

Minute Order Confirming Tentative Ruling

Last 5 posts by Ken White

53 Comments

48 Comments

  1. joe pullen  •  Apr 19, 2013 @8:30 pm

    This is a great example of what defending free speech is all about. I also don't necessarily agree with Frey's position on some political issues but I'm very happy to see this outcome. Congrats on a well deserved win.

  2. Raul  •  Apr 19, 2013 @8:32 pm

    Awesome result.

  3. JW  •  Apr 19, 2013 @8:37 pm

    Fuckin' awesome, Ken (and Ron!). First round is on me.

  4. Ken White  •  Apr 19, 2013 @8:38 pm

    Incidentally, I lost my shit a little during oral argument and the judge had to tell me to calm down. Not my finest moment. Do as I say, not as I do.

  5. Matthew Jude Brown  •  Apr 19, 2013 @8:41 pm

    Congratulations on a well-deserved victory.

  6. Eric R.  •  Apr 19, 2013 @8:41 pm

    Very awesome. Congratulations!

  7. Chris  •  Apr 19, 2013 @8:42 pm

    Congratulations to Ken, Ron, and of course Patrick.

  8. Pablo  •  Apr 19, 2013 @8:48 pm

    I was a long time fan and reader of Patrick's blog. and have been referred to by him as one of his favorite commenters. That said, he's an asshole.

    I'm glad you all won this though. That is as it should be. I've yet to see Naffe do anything right.

  9. MarkH  •  Apr 19, 2013 @8:52 pm

    Congratulations!

    I would say "Welcome to the Big Leagues!" but that somehow seems rude these days. Plus I specialize in dog-walking and tv, so they aren't very great leagues at that. But it is so great to see lawyers doing what they feel is right and just, and judges who care as well.

  10. htom  •  Apr 19, 2013 @9:00 pm

    Congratulations, and thank you.

  11. Matthew Cline  •  Apr 19, 2013 @9:06 pm

    Any amusing responses from the anti-Patterico people?

  12. AlphaCentauri  •  Apr 19, 2013 @9:09 pm

    Congratulations!

  13. Wick  •  Apr 19, 2013 @9:10 pm

    Congratulations. Whatever the merits of the O'Keefe– Naffe dispute (the pair seem to deserve each other), this was an attack on political speech, and attacks on political speech should not be countenanced. Well done.

  14. Man in the Middle  •  Apr 19, 2013 @9:13 pm

    I've recently become more aware of pro bono work by attorneys through a local charity (AdministerJustice.org), and really appreciate what they and you are doing to defend fundamental human rights. Thanks much for defending freed speech in its true sense (even for those with whom you disagree.)

  15. Wick  •  Apr 19, 2013 @9:15 pm

    While the Popehat signal seems to be a quite effective tool on an ad hoc basis, has consideration been given to putting together a list of persons interested in defending bloggers from SLAAP suits? If so, put me down as a potential volunteer for Northern and Central Indiana.

  16. Jim Tyre  •  Apr 19, 2013 @9:29 pm

    Excellent, Ken. But really, not telling us how you lost your shit? Is that hypocrisy? '-)

    Wick, ping me. https://www.eff.org/about/staff/james-s-tyre

  17. Patterico  •  Apr 19, 2013 @9:38 pm

    Ken is the greatest — and so is Ron Coleman.

    I have updated my own post to link Ken's post, and to add a few thoughts of my own. Allow me to quote one portion of my update:

    "When I told Ken this evening by email that I could not thank him enough, he told me: '[T]o pay me back, keep writing what you want to write, and encourage people to support free speech, especially for people with whom they disagree.' That brings tears to my eyes. It makes me want to stand up and start singing 'God Bless America.' And, on a more practical level, it redoubles my resolve to continue donating to organizations like FIRE — and to continue to stand up for free speech rights on this blog, even when I disagree with the opinions being expressed."

    As far as this lawsuit goes: Always remember, and never forget, that the judge threatened sanctions for what he characterized as "Plaintiff's (and/or her counsel's) willingness to play fast-and-loose with the language that is actually at issue here."

    That kind of says everything that needs to be said, doesn't it?

  18. Dan Collins  •  Apr 19, 2013 @9:44 pm

    Wonderful thing you guys have done on behalf of all of us bloggers. Thanks.

  19. Alan Bleiweiss  •  Apr 19, 2013 @9:56 pm

    The things some people say cause me to want to vomit. Yet I'll support their right to say it every time I get the opportunity. Of course, I too will then often utter how completely stupid, ignorant, myopic or otherwise wacked in the head they are for saying it. But that's just my way of exercising that very freedom and right we all share. :-)

  20. Patterico  •  Apr 19, 2013 @10:02 pm

    "Any amusing responses from the anti-Patterico people?"

    They're busy studiously pretending they have no idea it happened.

  21. joe pullen  •  Apr 19, 2013 @10:13 pm

    @Patterico – the anti-Patterico people can't apparently read, much less comprehend a straightforward motion to dismiss. Why only yesterday one of them thought it was the first day of the trial and went on to brag about their mastery of all things legal including California SLAPP – oops.

    And yes Ken brings tears to my eyes as well but most likely it is the result of the taint from his colostomy bag, or at least that is the excuse I use.or so I tell myself.

  22. BradnSA  •  Apr 19, 2013 @10:25 pm

    Thanks and congratulations. It's nice to see the good guys win one after the Walker and Hoge bs.

  23. princessartemis  •  Apr 19, 2013 @10:35 pm

    Congratulations and good work!

  24. LJM  •  Apr 19, 2013 @10:37 pm

    I'm an "anti-Patterico" person, and I couldn't be happier for the outcome. Patterico should be allowed to post all the boot-licking, authoritarian nonsense he wants without fear of frivolous litigation. If he's ever forced to censor himself, his descendants will have fewer opportunities to be mortified by his opinions! ;)

  25. That Anonymous Coward  •  Apr 19, 2013 @11:06 pm

    Good work!
    And I've totally never lost my shit dealing with stupidity ;D
    Sometimes it happens to even the best of us…

  26. Ghost  •  Apr 19, 2013 @11:24 pm

    Freakin awesome. Though I agree with the above post that we all need details on how exactly you lost your shit. Please tell me you quoted Vincent Gambini… "Everything that guy just said was bullshit."

  27. Kaitian  •  Apr 19, 2013 @11:28 pm

    The anti-Patterico people tried to imply that Frey was behind the bomb threat at the courthouse the very same day. Was Frey even there that day?

  28. JP  •  Apr 19, 2013 @11:34 pm

    Because I'm not a lawyer, this may be an utterly stupid (and possibly moot) question, but I ask it in all seriousness…

    How did Patrick Frey obtain the deposition transcript that was published in his blog?

    I know the document is "available in public court records online", but was that the avenue Mr. Frey obtained them (PACER?), or were they acquired through his position as Deputy District Attorney?

    Please don't get me wrong; I support the outcome of the case as reported here, and if Mr. Frey went through public channels to obtain public records, and posted same as a private citizen, I have no issue. Forget that I asked.

    However, if he used position as Deputy District Attorney to obtain those records from his office (bypassing public channels), then turned around and posted them as a private citizen, I would say, at a minimum, he violated his ethical duty to separate his job from his private life, as well as (possibly) public policy for his job.

  29. Chris R.  •  Apr 19, 2013 @11:36 pm

    Very awesome Ken, some good news to a rather bad week.

  30. Brian  •  Apr 20, 2013 @12:40 am

    This is a practice question, not interesting to most people, but if anyone (including Mr. White) cares to answer, I'd appreciate it: Why are the various grounds – 12(b)1, 12(b)6, SLAPP – for the Motions to Dismiss spelled out in separate documents (filed the same day)? Usually I see all the grounds in a single big Motion to Dismiss.

  31. Arnt Karlsen  •  Apr 20, 2013 @3:24 am

    ..and you should probably have listened a wee bit more to Judge Wu, "Ron and I filed motions seeking to dismiss Nafe's original federal complaint.", I guess should have been written 'Ron and I filed motions seeking to dismiss Naffe's original federal complaint.' ;o)

  32. SarahW  •  Apr 20, 2013 @4:51 am

    They were on PACER, available like all other PACER docs.

  33. NickM  •  Apr 20, 2013 @5:09 am

    JP – PACER is the online federal court case record system. They're not records belonging to the L.A. County District Attorney's Office.

  34. Ken White  •  Apr 20, 2013 @7:42 am

    @Brian:

    This is a practice question, not interesting to most people, but if anyone (including Mr. White) cares to answer, I'd appreciate it: Why are the various grounds – 12(b)1, 12(b)6, SLAPP – for the Motions to Dismiss spelled out in separate documents (filed the same day)? Usually I see all the grounds in a single big Motion to Dismiss.

    A few reasons. First, briefs have a page limit. Second, it's easier to keep the legal arguments distinct. Third, the different motions treat facts differently. The 12(b)(6) motion can't rely on evidence outside the complaint (with some exceptions), the other motions can rely on extrinsic evidence. It's hard to keep the distinction clear in a single brief.

    @JP:

    How did Patrick Frey obtain the deposition transcript that was published in his blog?

    From PACER,, the federal courts' online record system. Anyone can get an account.

    Mr. Frey's account of downloading the deposition transcripts from PACER is at page 5 of the anti-SLAPP motion above and paragraphs 22-27 of his declaration above.

    The deposition transcripts in question were still publicly available on PACER as of last Wednesday.

  35. eigenperson  •  Apr 20, 2013 @8:11 am

    Put me in the "hate most of Patterico's political views but still glad he won" camp.

    The people who apparently think Frey and others like him should be forced to shut up represent a major failure of our educational system. We need to fix it, because the First Amendment will eventually be eroded away to nothing if citizens don't actually support the right to free speech.

  36. Patterico  •  Apr 20, 2013 @9:09 am

    "Mr. Frey's account of downloading the deposition transcripts from PACER is at page 5 of the anti-SLAPP motion above and paragraphs 22-27 of his declaration above."

    Indeed — and anyone who takes the time to read the documents Ken referenced will see that I submitted proof, in the form of records from PACER, showing that is where I got the records.

  37. SPQR  •  Apr 20, 2013 @9:34 am

    Ken, my immense gratitude to you and Ron for doing for my friend Patterico what I was not able to do.

  38. joe pullen  •  Apr 20, 2013 @10:24 am

    BTW who exactly is "Hutt" Schmalfeldt?

  39. SPQR  •  Apr 20, 2013 @10:46 am

    joe, the grotesque and quite insane Brett Kimberlin acolyte who posts an unending spew of obscenity and sickness about the "Team Kimberlin" (the Hutt even has a hat so labeled) enemies list.

  40. JP  •  Apr 20, 2013 @12:33 pm

    Ken & Patterico,
    Admittedly, I did not delve deep into the linked documents. I apologize for that, because I probably would not have fully understood the legaleze anyway. (Confession: I'm a physicist, not a lawyer.) Besides, Ken does such a great job summarizing!

    I do thank you both for the clarification. As you probably got from my comment, I dislike government officials using their position for personal gain/publicity. There a line that can easily be blurred, but I am grateful that this is NOT the case here.

    Congratulations! Your victory is well deserved. Kudos to you and the team for fighting the good fight!

  41. Dustin  •  Apr 20, 2013 @3:20 pm

    Ken, thanks for working so hard. I don't think you've been awarded fees. Is there any way to attempt to collect them? It probably wouldn't matter against a judgment proof individual anyway.

    But I've read your motions and you did professional and careful work, and it was worth thousands of dollars, and you and Ron Coleman just gave that away to someone because of your moral convictions. That is an impressive act of charity. Both of you are awesome people.

  42. Ron Coleman  •  Apr 20, 2013 @7:13 pm

    Hi. Shabbos just ended on the East Coast so I am catching up on all the good news, including all the good blogging about it — but thanks, Ken, for the nice mentions.

    People: This was Ken's baby. This is not a suggestion, Ken, for you to now pipe in and say, oh, no, Ron, you da man — I'm not good at false modesty, and indeed regarding conventional modesty I'm pretty lousy too, but, Ken, you would certainly have gotten this result without my help. I was and am honored to chip in, however, and will maintain my personal commitment only to use my frankly extraordinary talents only for good, or evil.

  43. TheOtherMatt  •  Apr 21, 2013 @12:34 am

    Can somebody OCR the ruling for me

  44. Ron Coleman  •  Apr 21, 2013 @4:30 am
  45. James  •  Apr 21, 2013 @5:02 am

    Let me knit-pick on one point in the post regarding a misstatement of the law. While it may seem a trivial point, it did not keep Judge Richard Posner of the 7th Circuit Court of Appeals from tossing an otherwise interesting case for lack of jurisdiction and sanctioning both attorneys for wasting the court's time.

    The requirement for diversity is not a controversy worth AT LEAST $75,000 as stated above. It is a controversy that "EXCEEDS the sum or value of $75,000" [emphasis mine]. You can look it up at 28 USC 1332(a).

    Apparently there is a growing, but sloppy, practice of attorneys asking for precisely $75,000 in damages in order to get a case into federal court, but forgetting that the requirement is to ask for more than $75,000. Judge Posner's opinion tore both attorneys a new one and the sanction he applied was that the attorneys were required to complete a law school review course covering the requirements for diversity. As both sides were represented by major Chicago law firms it was quite the slap in the face.

  46. joe pullen  •  Apr 21, 2013 @6:02 am

    The Twitter commentary by the supporters of the opposing team is both hilarious and disturbing. Hilarious as they seem unable to comprehend basic legal terms and appear under the impression they can "re-try" this case under some tin foil hat conspiracy theory. Disturbing in that there appears to be an impllied intent to manufacture other reasons to drag Patterico into court again. I hope his employer is aware of this and treats any such nonsense accordingly.

  47. Bill  •  Apr 21, 2013 @8:24 pm

    @Ken – can you divulge the details of 'losing your sh*t"? Somehow i have a feeling it consists of really hysterical statements.

  48. Beldar  •  Apr 22, 2013 @7:31 pm

    Deftly done. My congratulations on a definitive, well-deserved, and well-earned victory.

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