Popehat Signal Update: Dream Team Takes On Litigious AIDS Denier In Texas

Effluvia

Sure, the Popehat Signal is fun to light up, but whether it does anything is entirely out of my hands. The signal depends on dedicated lawyers willing to devote valuable time and effort to protect freedom of speech. Without them I'm just a guy with a weird searchlight cartoon who likes to say "taint" a lot.

That's why I am thrilled — and thankful — to report on the response to last month's Popehat Signal seeking help for a blogger sued in Texas by an AIDS denialist.

You might recall from that post that Clark Baker is suing Todd Deshong for trademark violations and defamation because Deshong has been challenging and criticizing Baker's junk-science rap. Baker even asserts that it is defamatory to say that his bogus scientific theories are a hoax:

They allege that Plaintiff Baker is incompetent, that he knowingly makes false and misleading representations to the public, that his legal and scientific theories with regard to HIV are a hoax, that Baker’s reputation as a former LAPD police officer is misleading, and other personally disparaging remarks.

The response to the signal was nothing short of spectacular. Today a team of four lawyers representing Todd Deshong pro bono filed two motions: a motion to dismiss the trademark claims and a a motion to strike the defamation claims under Texas' robust anti-SLAPP statute. The exhibits in support of the motions are here.

This is top-notch legal work that would cost you tens of thousands of dollars if you were paying for it. Deshong is getting it for free because the lawyers on this team believe in free speech and oppose abuse of the legal system to suppress it. Here's the team, in no particular order:

D. Gill Sperlein, a veteran First Amendment litigator well known to my colleagues in the First Amendment Lawyers Association, who is generous with pro bono work. Gill stepped in early and took the lead in Deshong's defense.

Paul Alan Levy of Public Citizen, whose exploits are well known to Popehat readers. Paul is one of the foremost lawyers in the country on the issue presented in the motion to dismiss: the abuse of trademark to suppress criticism.

Gary P. Krupkin, an experienced defense attorney, litigator, and free speech defender who has previously come to the aid of bloggers in Texas, and whose formidable skills have been sufficient to talk sense into me on more than one occasion.

Neal A. Hoffman, an up-and-coming litigator at the Houston firm Bush & Ramirez P.L.L.C. It's no easy task to get a firm to sign on for a pro bono project like this; Hoffman and his firm are to be commended, and his dedication and skill here predict a successful career.

[I'd like to point out that Leif Olson, who wrote a memorably awesome letter to a threatening dentist, also offered to help. But only so much badass can fit on a team at one time.]

The motion to dismiss establishes conclusively that Deshong's use of Baker's "HIV Innocence Project" on his critical blog "HIV Innocence Group Truth" is not a trademark violation, but rather classic criticism protected by the First Amendment. You can read Paul Alan Levy's explanation in his blog post. The anti-SLAPP motion demonstrates that Baker cannot prevail on his defamation or business disparagement claims because they are barred by the statute of limitations, because they improperly attack statements of opinion, and because Baker can't prove falsity or malice, as required.

I never predict the outcome of litigation. But Todd Deshong has a hell of a team, and they have the right of it, and I like their chances.

People get threatened with bogus defamation suits, or even sued vexatiously, all the time. One in a hundred gets this type of representation. Too many can't afford it, and too many are intimidated by the prospect of financial ruin into silence. Their free speech rights are quelled by bad actors willing to abuse the legal system. That's why public service like this is so important, particularly when the case involves such a crucial issue — the right of citizens freely to critique the propagation of junk science. Please join me in applauding these lawyers and their firms. Please consider a donation to the legal defense fund, which will cover hard expenses. And please keep doing what you can to promote freedom of expression in the face of legal threats.

Last 5 posts by Ken White

39 Comments

39 Comments

  1. NE Patriot  •  Aug 15, 2013 @4:03 pm

    "[I'd like to point out that Leif Olson, who wrote a memorably awesome letter to a threatening dentist, also offered to help. But only so much badass can fit on a team at one time.]"

    I need to respectfully disagree with your implied message here, Ken. There's never such a thing as too much badass.

  2. Grifter  •  Aug 15, 2013 @4:09 pm

    I posted this on the Rotolight thread, but it had gotten kinda stale, so I'll do it here, too:

    It occurred to me that it would be nice if you had a Wall-O-Popehat "Signal Stepper-Uppers", maybe on the left bar?

    I mean, I don't need a lawyer much, but if I did, I'd tend towards one who had stepped up to the plate on principles (and that goes for other support-the-signal folks who have other business like IT or whatnot, too).

  3. George William Herbert  •  Aug 15, 2013 @4:31 pm

    Bravo to you for hosting signal and everyone who helped (or offered).

  4. Matthew Cline  •  Aug 15, 2013 @6:04 pm

    Baker even asserts that it is defamatory to say that his bogus scientific theories are a hoax:

    They allege that Plaintiff Baker … knowingly makes false and misleading representations to the public,

    … because they improperly attack statements of opinion …

    1) Did the defendant actually use the word "hoax"?

    2) If so, doesn't describing Baker's ideas as a "hoax" necessarily accuse him of knowingly making false statements?

    3) Isn't saying the plaintiff knowingly made false statement a statement of fact rather than an opinion?

  5. Renee Marie Jones  •  Aug 15, 2013 @6:19 pm

    Isn't there something massively wrong with a legal system that puts honest people at threat of multiple-thousand dollar legal bills by someone who is obviously abusing the law?

  6. James Pollock  •  Aug 15, 2013 @6:32 pm

    "doesn't describing Baker's ideas as a "hoax" necessarily accuse him of knowingly making false statements? … Isn't saying the plaintiff knowingly made false statement a statement of fact rather than an opinion?"
    Depends. One can advance a hoax and advocate for it without being the hoaxer. The fact that something is a hoax does not necessarily imply that the advocate for the hoax KNOWINGLY made false statements. Knowing that the statement is false when uttered, or being recklessly indifferent to whether or not it is false, is one of the elements of defamation.

  7. Steve  •  Aug 15, 2013 @6:33 pm

    Ken: If the defendant here prevails with his anti-SLAPP motion, I assume that the pro bono attorneys will be awarded reasonable fees? Would they be awarded the fees that they would have charged, but not for the fact that volunteered their services?

  8. Hughhh  •  Aug 15, 2013 @7:31 pm

    Bravo to all involved.

  9. Chris  •  Aug 15, 2013 @8:01 pm

    Without them I'm just a guy with a weird searchlight cartoon who likes to say "taint" a lot.

    Now that had me busting a gut.

    Kudos to Ken and all those who responded to the Popehat Signal!

  10. SharonA  •  Aug 15, 2013 @8:04 pm

    Daaaang that's a lot of badass in one place.

    *CHEERING* and thank you

  11. En Passant  •  Aug 15, 2013 @8:12 pm

    As the links show, this is not an ingenuous defamation case.

    Damages from the defendant are not the purpose. The defendant is just a convenient hostage. The actual target is a third party, Dr. Robert Gallo, whom the plaintiff hopes to depose.

    One word: contemptible.

    My hat is off to the First Amendment badasses who came to assist. May their tribes increase.

    That is all.

  12. David Schwartz  •  Aug 15, 2013 @8:32 pm

    "[D]oesn't describing Baker's ideas as a "hoax" necessarily accuse him of knowingly making false statements?"

    No. Whether or not something is a hoax relates to where the claims came from in the first place, not how they got relayed after that.

  13. Shane  •  Aug 15, 2013 @9:12 pm

    Thank you Ken for making the world a better place. Not many have the opportunity, and those that do, sadly don't. Thankfully you are the exception.

    Thank you, D. Gill Sperlein, Paul Alan Levy, Neal A. Hoffman. I don't know you, but I am glad to know that there are people that will step up and do what is right, and not allow evil to triumph.

  14. Alan Bleiweiss  •  Aug 15, 2013 @10:39 pm

    It's just so awesome and inspiring to see how true professionals are willing to step up and go the extra mile when the signal goes out…

  15. Sacho  •  Aug 16, 2013 @12:30 am

    It seems that the kickass team of lawyers are from Ken's tribe. Quoting the anti-SLAPP motion's "Introduction and Facts", section 7:

    "The Texas Citizens’ Participation Act (TCPA), which Texas enacted on June 17, 2011, provides for the early dismissal of preciously this type of legal action. "

  16. grouch  •  Aug 16, 2013 @1:13 am

    My rights are being trampled! Why, oh why do I get a "403 Forbidden" when trying to download the exhibits using wget? Has Popehat been secretly commandeered? Is this irresistable Popehat Signal update article really a diabolical honey pot for computer fraud convictions?

    Ok. I'll stop chewing on my tongue now and grab the damn docs with a browser. wget haters.

  17. Michael Donnelly  •  Aug 16, 2013 @7:37 am

    Only hackers use wget. It's been shown in a court of (kinda) law.

  18. Ken White  •  Aug 16, 2013 @7:55 am

    1) Did the defendant actually use the word "hoax"?

    2) If so, doesn't describing Baker's ideas as a "hoax" necessarily accuse him of knowingly making false statements?

    3) Isn't saying the plaintiff knowingly made false statement a statement of fact rather than an opinion?

    In this context "hoax" is clearly a statement of opinion, because it is referring to Baker's adherence to the "HIV doesn't lead to AIDS" junk science narrative.

    Similarly, if you had a Bigfoot website, and I said "Matthew Cline pushes the Bigfoot hoax," that would be opinion. If I said "Jenny McCarthy contributes to the death of children by pushing the anti-vaxxer 'vaccines cause autism' hoax," that would be opinion. In context, "hoax" refers to the speaker's opinion of the merit of the junk-science position the subject is pushing.

  19. David  •  Aug 16, 2013 @8:24 am

    " In fact, every statement on the blog is true"

    Wow. Most blogs wouldn't claim to live up to that standard.

  20. rmd  •  Aug 16, 2013 @8:25 am

    In honor of Ken and the Popehat Signal responders, I propose amending the old "99% of lawyers give the other 1% a bad name" joke to "98%…2%…"

  21. wumpus  •  Aug 16, 2013 @8:45 am

    "I never predict the outcome of litigation." Can I assume you mean "that I am not party to"? I'd hate to retain a lawyer who couldn't tell me the likely outcomes of handling a lawsuit.

  22. Zelmel  •  Aug 16, 2013 @9:47 am

    Ken, this got me thinking. Has anyone tried to sue you (or others at Popehat, or Popehat as an 'organization') over things written here on the blog?

  23. gramps  •  Aug 16, 2013 @9:56 am

    Wump:

    Most lawyers wouldn't go beyond the prediction of "we are going to win, or lose". Even after all the evidence is placed before the jury, few will tell you, with any hint of certainty, what the jury will do with it. The system involves people and people do strange things.

  24. SassQueen  •  Aug 16, 2013 @10:03 am

    Am I the only one wondering whether Jen B got her hand written apology letter?

  25. zilong555  •  Aug 16, 2013 @10:10 am

    No, SassQueen, you are not.

  26. zilong555  •  Aug 16, 2013 @10:27 am

    On the topic of old stories, I notice that the regretsy site is down and so the link to Ken's related letter (http://www.regretsy.com/2012/04/25/no-you-cease-and-desist/) is now dead. It doesn't appear to be in archive.org. It's sad that we have lost the comments on that page, but does anyone at least know of anywhere else that the letter was posted?

  27. Jennifer  •  Aug 16, 2013 @11:18 am

    @Steve:

    The Dream Team will seek fees, as is their prerogative under TCPA. (The amount of said fees is ultimately decided by the court, not the fee applicants. They should get plenty if they rock the house and carefully document their time spent.)

    .It is clear on the face of the complaint that plaintiffs will not be able to establish by clear and specific evidence a prima facie case for each essential element for a trademark infringement claim under Texas Business and Commerce Code §16.001 et. seq. Thus, the Court
    must dismiss plaintiffs’ Texas trademark infringement claim and award fees.

    The motion's beautiful to read. Gill Sperlein (I think he's the primary author) layers his argument like a damned onion. (Multiple iterations of, "Even if my client did do what you say, which you have no proof of, you still can't sue him for that!")

    I'm not sure how you can counter that argument. It'll probably involve a lot of "Baker trying to prove how totally right he is, you guys." I hope that the presiding judge won't put up with that kind of bullshit.

  28. Jennifer  •  Aug 16, 2013 @12:53 pm

    @zilong555 – I could only find the first two pages. T_T

    Page 1
    Page 2

    This third one's gonna turn out to be my white whale. *sigh*

  29. Roscoe  •  Aug 16, 2013 @1:05 pm

    Hijacking the thread for breaking news of critical importance. In today's Weekly Standard:

    "In the near future, historians will struggle to locate the precise moment when civilization’s wheels finally, irretrievably came off. By then, there will have been too many such moments to pinpoint one with any certainty. But I’ll mark the day as having occurred on a recent August weekend when, standing in the concourse of the Baltimore Convention Center, I watch grown men with problem skin and five o’clock shadows prance around in pony ears, rainbow manes, and braided tails lashed to their belt-loops, doling out “free hugs,” starting “fun! fun! fun!” chants, and spontaneously breaking into song."

    The Bronies. The horror. Link at:

    http://www.weeklystandard.com/articles/dread-pony_748495.html

  30. En Passant  •  Aug 16, 2013 @1:55 pm

    Jennifer wrote Aug 16, 2013 @11:18 am:

    The motion's beautiful to read. Gill Sperlein (I think he's the primary author) layers his argument like a damned onion. (Multiple iterations of, "Even if my client did do what you say, which you have no proof of, you still can't sue him for that!")

    I'm not sure how you can counter that argument. It'll probably involve a lot of "Baker trying to prove how totally right he is, you guys." I hope that the presiding judge won't put up with that kind of bullshit.

    I are not now and never were a civil alitigator, but that is classical demurrer language. It is usually the first substantive response on the merits of a suit, after contesting jurisdiction.

    In essence it says "even if every fact you allege is true, you still haven't stated a cause of action that a court can recognize."

    These days federally and in most state courts it is called a motion to dismiss for failure to state a legally cognizable claim.

    If it prevails, the best that plaintiff can expect is dismissal with leave to amend the pleading to state a legally cognizable claim. Possible rulings against plaintiff go downhill from there.

  31. inode_buddha  •  Aug 16, 2013 @1:57 pm

    But Ken, you *do* like to say "taint" a lot.

  32. En Passant  •  Aug 16, 2013 @2:15 pm

    PS. I don't know TX anti-SLAPP law. But demurrer plus allegation that plaintiff's suit was brought to prevent defendant's constitutional right to free speech is coherent with anti-SLAPP statutes generally. Although demurrer is not always necessary.

    Even if plaintiff's complaint is legally cognizable on its face, anti-SLAPP laws usually require that plaintiff must demonstrate a reasonable chance of prevailing on the merits, ie: the facts.

    Losing an anti-SLAPP motion can result in even worse things for the plaintiff, major sanctions, attorney fees, etc.

    I'll conjecture (because I am not expert in the matter) that losing on both demurrer and anti-SLAPP components of the motion could increase the sanctions against a losing plaintiff.

  33. Fasolt  •  Aug 16, 2013 @3:17 pm
  34. Anony Mouse  •  Aug 18, 2013 @1:38 am

    $10,000 for two motions. Yikes.

  35. damon  •  Aug 19, 2013 @3:54 am

    I'm very appreciative that we have folks like this left in the world. Kick some ass.

  36. ZarroTsu  •  Aug 19, 2013 @5:22 am

    Their free speech rights are quelled by bad actors willing to abuse the legal system.

    (Insert a witty CSI/Law&Order joke here)

  37. Aaron S.  •  Aug 19, 2013 @10:54 am

    Isn't that the same Gill Sperlein that was involved in the torrent litigation?

  38. Bystander  •  Aug 19, 2013 @12:58 pm

    Indeed. In fact, it was after they were targeted (incorrectly, needless to say) in a gay pornography bittorrent suit lawyered by Sperlein that FCT started their blog.

  39. I was Anonymous  •  Aug 20, 2013 @12:46 pm

    @ZarroTsu,

    I'm sure Lenny Briscoe (played by the late Jerry Orbach) would have something pithy and witty to say here.

    Yes, I know you were going for the obvious pun.