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For the term "randazza".

Roca Labs, Lacking A Hornet Nest Into Which It Could Stick Its Dick, Has Sued Marc Randazza

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This crazy litigant goes to 11.

Roca Labs, you may recall, is the weight-loss-goo purveyor that is belligerent, litigious, and sensitive to criticism to a pathological degree. Last month I wrote about how they require their customers to sign no-criticism contracts, and had sued PissedConsumer.com for carrying negative reviews. Yesterday I lit the Popehat Signal to seek help for customers Roca Labs has targeted with vexatious litigation — including, in what no doubt is just a big coincidence, one of the witnesses against them in their first litigation.

Can Roca Labs push the envelope more? Yes they can.

Today Marc Randazza — counsel for PissedConsumer.com in Roca Labs' frivolous suit — filed an updated notice of related cases in the PissedConsumer case. That updated notice revealed that Roca Labs has now sued Randazza himself for his activities defending PissedConsumer.com.

The complaint itself — which I have uploaded here — brings the crazy and brings it good and hard. It was penned by Roca Labs' latest attorney, one Johnny G. DeGirolamo, a 2009 law school graduate and 2011 bar admittee, whose website is www.inlawwetrust.com. No, really. His site offers a flattering headshot of a smiling advocate, and it was a very good choice to use that picture rather than, say, his booking photo.

Roca Labs, through Johnny G., accuses Marc of interference with economic advantage and defamation per se1, demands a declaration that Randazza is wrong and he is libel, and moves for an injuction telling Marc to shut up. Yeah, good luck with that.

But that ain't all. The complaint is a model of prissy pearl-clutching. Johnny G. is aghast that Randazza has provided legal services to adult entertainment companies. Goodness gracious! Johnny G. is horrified that Randazza has been "an outspoken advocate for Phillip Greaves, the author of 'The Pedophiles Guide to Love and Pleasure.'" To be more accurate, Randazza has been an outspoken advocate for the First Amendment issues presented by Greaves' case, but it's not surprising that a First Amendment distinction is lost on the sort of attorney who wold represent Roca Labs. Johnny G. is cheesed off at Randazza's catchphrase murum aries attigit, which apparently suggests a level of aggression that is upsetting to a company that flails around suing its customers for criticizing it. In short, Johnny G. — bless his heart — does his best to make Marc Randazza sound terrible, and only wind up making him sound knowledgeable about free speech.

On to the substance of the claim, if I may use the term very generously. Roca — through Johnny G. — asserts that Marc has been defaming Roca Labs during this litigation by making statements to the press (or, as Johnny G. puts it, to "webzines") and then putting those same statements in court pleadings. They imply he's trying to cloak his statements to the media with litigation privilege by repeating them in court filings. This theory is . . . odd.

Moreover, Johnny G. and Roca Labs are conspicuously vague about exactly what statements are defamatory, and exactly how. Other than complaining that Randazza defamed Roca Labs through a very clearly satirical tweet on Halloween, there are few specifics. Roca Labs complains that Randazza's purpose is to "mock, ridicule, humiliate, harm, and continue his war against ROCA," but that's not very specific. Roca Labs complains about statements in articles by TechDirt and tries to attribute them to Randazza, but doesn't explain exactly what Randazza said and exactly how it was wrong. That lack of specificity is probably deliberate — if Roca Labs admitted they were mad over the term "snake oil," they'd have to confront the fact that the phrase is obviously protected opinion. See, e.g., Phantom Touring v. Affiliated Publ'ns, 953 F.2d 724, 728, 730–31 (1st Cir.1992) (holding that description of theatre production as “a rip-off, a fraud, a scandal, a snake-oil job” was no more than “rhetorical hyperbole”). Moreover, in some parts of the complaint Roca Labs is attacking statements that are clearly, objectively true based on Roca Labs' own court documents. For instance, Roca Labs angrily quotes a paragraph in which TechDirt accused them of trying to silence customers. Which is what they are doing.

Finally, the complaint attaches a motion for a temporary injunction, in which Johnny G. demands that Randazza cease and desist saying mean things about Roca Labs, retract prior mean things, and remove any online content about Roca Labs. At this point I have to admit that I don't know whether Roca Labs and Johnny G. are powerfully stupid, breathtakingly cynical, unapologetically unethical, or all three. Despite the fact that they are suing a renowned First Amendment lawyer, despite the fact that they are demanding an injunction silencing him, despite the fact that they have lost a similar injunction request in which Randazza schooled them on the First Amendment and prior restraint issues, and despite the fact that it is clear those issues will arise again, their motion makes no mention whatsoever of the overwhelming First Amendment and prior restraint issues presented by their demand.

Roca Labs is mistaking aggression for strategy. Randazza, by filing his notice of related case, has alerted the federal court hearing the PissedConsumer.com case that Roca Labs is flailing around suing opposing lawyers, which will not go over well. Roca Labs has hired what appears to be an improbably matriculated Muppet to champion their case, despite a patent lack of qualifications. Roca Labs thinks that suing Marc Randazza to shut him up is going to end well. They should have asked Raanan Katz or Crystal Cox how that would turn out.

I'm calling it: Roca Labs has achieved Prenda status.

Edited to add: Adam Steinbaugh explains why Roca Labs' attempt to evade the litigation privilege is so frivolous.

Marc Randazza Defeats The Very Sensitive Raanan Katz On Prior Restraint Issue

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Remember Miami Heat owner Ranaan Katz? He's the easily offended fellow who goes around suing people because there's a mildly unflattering picture of him on the internet. Previously I wrote about how he sued a blogger who was relentlessly critical of him, threatened to sue the blogger's lawyers — including First Amendment badass Marc Randazza — for representing her, and eventually convinced a Florida judge of questionable judgment to issue a broad, unprincipled, and unconstitutional prior restraint against blogging negatively about Katz.

Sometimes the bad guys win, I said after that ludicrous injunction. But there's another apt cliche — it ain't over 'till it's over.

Yesterday the blogger, represented on appeal by Marc Randazza and Jeffrey Crockett, won on appeal. Their victory was won in part by the hard work of Darren Spielman and Robert Kain in the trial court. The Third District Court of Appeal for Florida issued a broad and helpful opinion soundly rebuking the trial court for its prior restraint injunction.

I've been talking about prior restraint in the context of the Roger Shuler story. The concept, at its heart, is that the law (both constitutional doctrine and the common law of most states) allows a court to punish some speech after it happens, but with very few exceptions doesn't allow injunctions prohibiting speech in advance. The Florida court was blunt about the impact of Florida law:

Injunctive relief is not available to prohibit the making of defamatory or libelous statements. See, e.g., Vrasic v. Leibel, 106 So. 3d 485, 486 (Fla. 4th DCA 2013). A temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns. Id.

The court noted a Florida exception — prior restraint might be permitted when the speech at issue is not just defamatory, but also constitutes a business tort like interference with business relationships. You can see how that could become the exception that swallows the prior restraint rule when the censorious plaintiff is a businessperson like Raanan Katz. Fortunately the court here demanded more than allegations; it demanded proof of interference with business relationships from the blogger's insults, and found that Katz had provided none:

However, as in Murtagh, the record before us fails to support an inference that Ms. Chevaldina’s blogs are having a deleterious effect upon prospective tenants. The temporary injunction should have been denied for a failure to show with reasonable certainty the elements of tortious interference, as there was no evidence of unjustified interactions with specific parties known to be involved, or likely to be involved, in an advantageous business or contractual relationship with the appellees.

(By the way, it's not clear to me at all that this Florida doctrine of "prior restraint is acceptable if you associate it with another tort in addition to defamation" meets constitutional muster, but this decision shows a court requiring actual proof of harm, which is a good thing.)

Moreover, the Florida court also found that the injunction below was overbroad — that is, it swept far more speech than what could be arguably defamatory, and prohibited far more than the rare cases permitting prior restraint have allowed:

The injunction under review prohibits Ms. Chevaldina from: “directly or indirectly interfering in person, orally, in written form or via any blogs or other material posted on the internet or in any media with Plaintiffs’ advantageous or contractual business relationships”; and “directly or indirectly publishing any blogs or any other written or spoken matter calculated to defame, tortuously interfere with, invade the privacy of, or otherwise cause harm to Plaintiffs.” This injunction improperly burdens Ms. Chevaldina’s speech more than necessary, attempts to enjoin future defamation, and fails to put Ms. Chevaldina on notice as to what she may or may not do under the injunction.

That language is key. As I said before, one of the main flaws with the unprincipled prior restraint order the trial court issued was that it was impossible for the blogger to determine what speech was prohibited, and the order effectively prohibited even truthful negative speech about Katz.

The court also overturned the injunction against trespass and stalking, finding that Katz had not submitted evidence of such activities, and rejecting the notion that blogging is "cyberstalking":

The appellees argue that Ms. Chevaldina’s blog posts constituted “cyberstalking” and therefore provided “incidents of violence,” i.e., stalking, as to justify an injunction pursuant to section 784.046. However, the appellees failed to introduce evidence that specific blog posts were being used “to communicate, or to cause to be communicated, words, images, or language . . . directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.”

This part of the ruling is important because overbroad notions of "cyberstalking" and "cyberbullying" are now a primary front in the war between free speech and censorship; it's common for censors to argue that unwelcome online speech about someone should be treated like repeated unwelcome communications to the person.

Finally, the Florida court ended with a helpful flourish, putting blogging into the the context of classic rhetorical tropes of free speech analysis:

Angry social media postings are now common. Jilted lovers, jilted tenants, and attention-seeking bloggers spew their anger into fiber-optic cables and cyberspace. But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk in front of an auto dealer that proclaimed, “DON’T BUY HERE! ONLY LEMONS FROM THESE CROOKS!” Existing and prospective customers of the auto dealership considering such a poster made up their minds based on their own experience and research. If and when a hypothetical complainant with the poster walked into the showroom and harangued individual customers, or threatened violence, however, the previously-protected opinion crossed the border into the land of trespass, business interference, and amenability to tailored injunctive relief. The same well-developed body of law allows the complaining blogger to complain, with liability for money damages for defamation if the complaints are untruthful and satisfy the elements of that cause of action. Injunctive relief to prohibit such complaints is another matter altogether.

This is exactly right. Censors attempt to treat blogging as something substantively different that takes it outside classic free speech protections, but there is nothing new under the sun, and blogging gets the same protection as other speech.

This is a huge and embarrassing defeat for the thin-skinned and entitled Raanan Katz and his aggressively censorious lawyers, and a huge victory for Marc, Jeffrey, Darren, Robert, and free speech. Well done. DON'T SUE ME RAANAN.

"The Takedown Lawyer": Let's Help Marc Randazza Investigate A Scammer, Shall We?

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I've been out of sorts of late, riven with the suburban fin de siècle, plagued with ennui, angst, weltschmertz. You know — moping.

There's only so many free speech cases I can write about in a week. Nobody pony-worthy is writing to me. I'm waiting for a couple of shoes to drop on the UST Development fraud investigation.

If only there were a nice juicy scam out there to chase . . .

Marc Randazza to the rescue!

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Marc Randazza, Whose Side Are You On?

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In the great Man-Ape war, Marc Randazza was once once of humanity's most trusted leaders. Hell, like I said before, he declared the War on Apes.

So why is he now fighting for the intellectual property rights of the ape-kin, rights that will only be used to weaken humanity's will with the apes' seductive wildlife photography and reality television programming? Has he faltered? Has he weakened? Has he changed sides and betrayed us? Or, giddy with victories over copyright trolls and dog-shooting SLAPP-suiters, does he imagine that he has transcended right and wrong, friend and foe, Man and Ape?

Don't forget where you came from, Marc Randazza. Those apes may groom you, they may pound their chests and roar in a manner that appeals to your litigation style, and they may even display a better grasp of the First Amendment than the average state legislator. But always remember that you are not one of them. You're one of us, God help you.

Marc Randazza, My Weird, Scary Hero

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We'd have covered the lawsuit filed by University of Miami law professor Donald Jones against the legal gossip site Above the Law yesterday, except that we were busy.  And everyone else got to it first.

Suffice it to say that the lawsuit was ridiculous.  It betrayed fundamental misunderstandings of law, and the nature of the internet on the part of its author. The best blogposts on the matter were written by Ben Sheffner, analyzing the demerits of the suit, and Eric Turkewitz, who played against type and provided wise, conciliatory counsel to the plaintiff, the sort of advice one might expect from, oh I dunno, a law professor.

(And by, "against type" I don't mean Turkewitz isn't wise.  I mean that his conciliatory advice doesn't play into the stereotype of a plaintiff's personal injury attorney, but I digress…)

The suit was dismissed, voluntarily and without prejudice, one day after news of it broke on the web.  We're pleased to note that Above the Law was represented by longtime Popehat friend Marc Randazza, who blogs on the First Amendment among other things at the Legal Satyricon.  Randazza got the case dismissed with one letter.

Randazza, an "adjunct" professor himself (meaning he actually practices law) has long maintained that the legal academy does a poor job of educating its students.  Non-adjunct, "academic" professors, tenured or not, are often so removed from the practice of law (at least as it relates to litigation) that they have little of practical benefit to offer the eager young minds who pay their exorbitant salaries.

I think this case proves Randazza's point.

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L.A. Court Prohibits Center for Medical Progress From Publishing Some Undercover Materials About Abortion

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My co-blogger Adam Steinbaugh contributed to the factual and legal research of this post.

A group called the Center for Medical Progress ("CMP") has been releasing a series of "undercover" videos as part of a campaign against Planned Parenthood and abortion. This week, a judge of the Los Angeles County Superior Court issued an order prohibiting them from publishing a narrow range of materials on that subject.

This post addresses the First Amendment implications of that order, not the legal, political, and social issue of abortion and/or Planned Parenthood's practices.

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Why Are Nevada State Senators Trying To Eviscerate The State's Anti-SLAPP Statute?

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In 2013 Nevada passed the strongest anti-SLAPP statutes in the United States. This statute was muscular. Not only did it cover a wide array of speech, and require substantial proof of the potential validity of a claim, it had frills like a potential $10,000 penalty on top of attorney fees for SLAPPers and a private cause of action so targets of SLAPP suits could sue their tormentors. My friend and colleague Marc Randazza, First Amendment badass, helped frame it, which is why it was so strong. It's already proven effective in Nevada's courts. It's an excellent tool to protect free speech from meritless lawsuits.

So who in the Nevada Senate Judiciary Committee is trying to kill it, and why?

The Nevada Senate Judiciary Committee proposed Senate Bill 444, and the senate just voted unanimously to approve it. Now it's up to the Assembly, and the Governor. I hope they stop it, because it's a complete disaster. Senate Bill 444 takes Nevada's superior anti-SLAPP statute and renders it very substantially less effective:

  • The statute previously applied to the broadest possible array of speech, meaning it could be used to defend all sorts of defamation (and other speech-targeted) claims on matters of public interest.  SB 444 narrows the protection to speech on an "issue of public concern," meaning "any topic that concerns not only the speaker and the speaker's audience, but the general public, and is not merely a subject of curiosity or general interest."  If you have no idea what that actually means, you're not alone.  There's a real danger it will deprive defendants of anti-SLAPP protection when they've written about some relatively obscure hobby or issue or concern.  There's also a danger that it will be used to exclude consumer reviews on Yelp and similar sites from the protection of the statute.
  • SB 444 dramatically changes the deadlines for an anti-SLAPP motion.  The existing law — as in most states — allows a motion within 60 days of service of the SLAPP suit.  SB 444 reduces that to 20 days — a very short period to find a lawyer and have that lawyer brief a potentially complex issue.
  • Under the existing statute, if a defendant shows that a lawsuit is aimed at speech covered by the statute, the burden shifts to the plaintiff to establish that they can prevail on the claim by submitting evidence.  Though the statute refers to "clear and convincing" evidence, cases have interpreted it to mean only specific and non-speculative evidence.   SB 444 changes the language, requiring the plaintiff to make only a "prima facie case."  To non-lawyers, that means simply offering any evidence which, if accepted at face value, could support a claim.  It's not clear how the Nevada courts will interpret the meaning of that change, and how a plaintiff's burden will be reduced.  Moreover, SB 444 specifically excuses the plaintiff from offering any evidence of "subjective intent or knowledge of the defendant."  In other words, the plaintiff doesn't have to have any evidence suggesting that the defendant knew or should have known a statement was false.  This dramatically reduces the plaintiff's burden in opposing an anti-SLAPP motion.
  • Under existing law, a prevailing defendant is entitled to fees.  If the motion is denied, the plaintiff is entitled to fees if the court finds that the motion is frivolous or vexatious.  SB 444 changes that to require a fee award to a plaintiff who defeats an anti-SLAPP motion if the court finds that the motion was filed "in bad faith" or without "reasonable basis."  That inquiry is much cloudier and unpredictable than an inquiry into frivolousness, and will deter defendants from filing close-call motions.
  •   SB 444 eliminates the court's ability to award up to $10,000 penalty on top of attorney fees, and eliminates the cause of action against someone who files a SLAPP suit.  That substantially reduces the deterrent effect of the statute.

If you were a lawyer representing defamation plaintiffs — from businesses suing Yelp reviewers to aggrieved subjects of social criticism — this would be the bill you'd draft to undermine Nevada's anti-SLAPP statute. Is that what happened? Which specific Nevada State Senator introduced the bill, and whose water was that senator carrying? Why are the senators trying to reduce free speech protections so dramatically in Nevada?

I don't know. But if anyone knows Nevada politics and politicians, I'd like to find out, so I can write about it. If you care about effective anti-SLAPP statutes, you might write to Nevada State Senators asking why they killed the anti-SLAPP statute, or write to the Assembly members asking them to stop it.

Dr. Mario J.A. Saad Tries, And Fails, To Censor American Diabetes Association

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Dr. Saad is mad.

Dr. Saad is mad because of something bad — specifically, the American Diabetes Association, through its journal Diabetes, is publishing expressions of concern about some of his scholarly articles, and may formally withdraw them.

Expressions of concern — like formal withdrawal of past articles — are part of the peer review process. It's how scientific journals police themselves and call attention to questions raised about research they've published. Naturally they are a source of annoyance to the authors questioned, as I've written about in the cases of several legal threats against the blog Retraction Watch.

So when the ADA began questioning Dr. Saad's work, he and his lawyers at Deutsch Williams did not rely on the peer review process, or on advocacy or persuasion. Don't be ridiculous! This is America. So they sued.

Dr. Saad sued the ADA for defamation, claiming that they were harming his reputation by printing digital expressions of concern about his work, preparing a print run, and declining to publish him further until their concerns were assuaged. That much — the attempt to vindicate scientific propositions through litigation, rather than through . . . you know . . . science — is banal at this point. What makes Dr. Saad and his lawyers notable is the remedy they demand.

Dr. Saad demanded in his complaint, and sought through a motion, an injunction forcing the ADA to remove its expressions of concern, and prohibiting it from publishing them or withdrawing Dr. Saad's articles. This is aggressive, in the sense of patently ridiculous. Dr. Saad is demanding prior restraint of speech, something that is prohibited (at least as pre-trial relief) in almost all circumstances.

When you are asking a federal judge to do something patently unconstitutional, and you're not a federal prosecutor, you face a conundrum. Do you attempt to distinguish the decades of Supreme Court cases saying that the judge can't do what you want, explaining in creative fashion why they don't apply? Or do you just ignore the issue and hope it doesn't come up? Dr. Saad's lawyers went with the later strategy, which might be called Underpants Gnome lawyering. Their brief studiously ignores the First Amendment, the wall of prior restraint authority, and the equitable doctrine that defamation can't be enjoined.2 The ADA's brief in opposition is more or less "what the fuck, man?" with bluebooking and footnotes.

Lawyers employ Underpants Gnome lawyering because sometimes it works. It didn't this time. United States District Judge Timothy Hillman denied Dr. Saad's request for an injunction politely but firmly:

Whatever interest Dr. Saad has in preserving his professional reputation, it is not enough to overcome the heavy presumption against the proposed order’s validity. This is precisely the type of circumstance in which the law forbids courts from halting speech before it occurs. See Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625 (1931) (declaring unconstitutional a court order preventing The Saturday Press from publishing a defamatory newspaper); Krebiozen, 334 Mass. 86 (affirming denial of injunction that would have prevented the publication of statements harmful to medical researchers’ professional reputations). The appropriate remedy in cases where a “publisher is to print a libelous, defamatory, or injurious story . . . lies not in an injunction against publication but in a damages or criminal action after publication.” In re Providence Journal Co., 820 F.2d 1342, 1345 (1st Cir. 1986).

This was not a close call.

Dr. Saad may still proceed seeking damages against the ADA, and might, hypothetically, get an injunction against specific statements found to be false after a full trial. But his effort to vindicate his scientific view through force of law has failed.

I offer no opinion on whether the ADA is right, or reasonable, in questioning Dr. Saad's research for scientific reasons. I got through my science/math/bio requirements in college through a Physics for Poets class in which I got a B+ by writing a speculative essay about antimatter derivative of 1950s Heinlein essays. But I do question the reliability of Dr. Saad's research on this basis: how can you trust the science of someone who tried to get a court order prohibiting public questioning of their conclusions? If a new therapy were based on a scientific theory that was defended not with peer review and the scientific method, but with litigation, would you trust it to be used on a loved one? I wouldn't. Dr. Saad may find that his litigiousness has harmed his credibility more than anything the ADA has ever said or done.

Hat tip to the folks at Retraction Watch.

The Feds Reach A Settlement With Craig Brittain, Revenge Pornster and Extortionist Behind "Is Anybody Down"

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Back in 2012 and 2013 I wrote about the saga of Craig Brittain and his revenge porn site "Is Anybody Down." The genesis of that series was Marc Randazza's discovery that the site was posting nude pictures and contact information, and someone calling themselves "David Blade III, takedown lawyer" was charging to "help" get the stuff taken down. All evidence suggested that David Blade never existed and that he was an invention of Craig Brittain, the operator of the site. In other words, it was an unusually despicable wire fraud and extortion scheme.

I counseled patience, because the system's wheels grind slowly. Finally we have a consequence to Brittain — of a sort.

The Federal Trade Commission — which was investigating Craig back in 2013 — has reached a settlement with him. The FTC had prepared an administrative complaint against Craig Brittain. That complaint shows that the FTC concluded several key points about Craig's practices. First this is their accusation about his methods of obtaining nude photos:

Respondent used three different methods to obtain photographs for the Website. First, Respondent encouraged and solicited individuals to submit, anonymously, photographs of other individuals with their intimate parts exposed for posting on the Website. Most submitters were men sending photographs of women. Respondent required that all submissions include at least two photographs, one of which had to be a full or partial nude, as well as the subject’s full name, date of birth (or age), town and state, a link to the subject’s Facebook profile, and phone number. Respondent received and compiled the photographs and personal information, posted them on the Website, and in some instances, Respondent posted additional personal information that he independently located about the subjects.

6. Second, Respondent posed as a woman on the Craigslist advertising website and, after sending other women photographs purportedly of himself, solicited photographs of them with their intimate parts exposed in return. If they sent such photographs, Respondent posted them on the Website without their knowledge or permission.

7. Third, Respondent instituted a “bounty system” on the Website, whereby anyone could request that others find and post photos of a specific person in exchange for a reward of at least $100. Respondent collected a “standard listing fee” of $20 for each request and half of all rewards given.

That contradicts Craig's various stories, which changed from day to day, but often centered around the claim "they consented."

Like everyone else who looked at the evidence, the FTC also concluded that Craig was David Blade III:

Respondent also advertised content removal services on the Website. In these advertisements, purported third parties identified as “Takedown Hammer” and “Takedown Lawyer” promised to have consumers’ content removed from the Website in exchange for a payment of $200 to $500. The advertisements referred interested consumers to the websites, www.takedownhammer.com and www.takedownlawyer.com, for further information. In fact, Respondent himself owned such websites, and posed as a third party to obtain money to remove the same photographs that he had posted on the Website.

11. Respondent earned approximately $12,000 from operating www.isanybodydown.com.

Craig has told many contradictory stories about David Blade, but he's always denied being him.

Craig settled this administrative complaint with the FTC. As far as I can tell he was not represented by counsel. Many people will find the terms of the settlement very unsatisfying. Craig admits no guilt. He doesn't go to jail. He doesn't pay any money. He does promise not to post nude pictures without the subjects' consent, and not to make misrepresentations about posting pictures online. He does have to destroy all the pictures and identity information he got while running the site. He also has to inform any employees or agents working with him on any web enterprise about the order. If he does anything else web-related, he has to turn over to the FTC at their demand a wide variety of information (privacy and consent policies, complaints, etc.) about the business. He has to tell the FTC for the next 10 years if he changes jobs, so they can watch what he's doing. And the terms of the order last 20 years.

A few thoughts about this based on my past dealings with the FTC:

1. This suggests the FTC determined he had no assets worth taking.

2. If he violates the order, the FTC can file against him in federal court. The resulting civil/administrative process only bears the most remote resemblance to due process. It will be ridiculously easy for the FTC to shut down and confiscate any new enterprise he starts for the next 20 years. The clients I've seen be most mercilessly and thoroughly screwed without pretense of fairness have been FTC defendants in federal court.

3. Craig Brittain is now subject to a permanent and relationship-and-career-debilitating stigma. Employers, lenders, landlords and others won't necessarily pick up internet drama. But you can bet that they'll pick up on an FTC consent order. Craig may want to change his name to something without such baggage, like maybe Pustule Nickelback McHitler III.

4. This doesn't prevent criminal prosecution. Nothing in the agreement shows any guarantee by the feds. The feds couldn't prevent state prosecution. Realistically, I think it means that federal prosecution is unlikely for past deeds. [I'd love to make a convincing argument here that this shows that he's about to be indicted, just to mess with his head. But I'm not a lowlife liar like Craig Brittain.] Federal prosecutors have limited resources and will likely see this as a resolution of any investigation. As for state prosecution, it's still possible given the applicable statute of limitations. A victim might take the FTC complaint and Craig's agreement to the locals and use it as incentive to go after him for fraud or extortion, as some locals are doing as we speak. If you are one of Craig's victims, and want help putting together a package to persuade locals, I'm happy to help.

However, be sure of this — if Craig Brittain ever gets up to bad behavior again, this result makes it much more likely that prosecutors will decide to spend resources on him.

Is this the end of the Craig Brittain saga? Not necessarily. But it's certainly an end to Craig Brittain ever being employable.

He'll have to spend his time at his new hobby — trying to insinuate himself into GamerGate, which for whatever reason he thought would be receptive.

Edit: Adam offers up a link-dense post tracing Craig's changing excuses and stories. That post is why you don't want Adam investigating you.

Second Edit: Apparently you can find Craig at this Twitter account. He's concerned about media ethics.

Vote For Popehat's 2014 Censorious Asshat Of the Year!

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Having skipped a year, Popehat will now continue its tradition of polling you, gentle readers, to elect our Censorious Asshat of 2014.

Only people or entities that we've written about in 2014 are eligible. I've culled the many asshats down to a few, based on volume and vigor of censoriousness, ridiculousness, hubris, and an X factor that I know when I see. Noted censorious asshat Brett Kimberlin has ascended to our Censorious Asshat Hall of Fame and is no longer eligible. Don't be greedy, Brett.

Vote early and often! Here are the candidates:

Carl David Cedar, a Texas attorney who threatened blogger Scott Greenfield with violence and lawsuits when Scott criticized Carl for swiping someone else's blog content. In Aggravation: A rare example of threats that are longer than my analysis of them. In Mitigation: ultimately pathetic, like a college sports star gone to seed.

Crystal Cox, blogger and litigant, who won an important free speech victory even as she engaged in a deranged nationwide blitz of frivolous litigation against her critics. In Aggravation: Sued people, including yours truly, in 10 different federal courts for criticizing her. In Mitigation: batshit crazy.

Michiko Shiota Gingery, Koichi Mera, and GAHT-US Corporation, litigants against the City of Glendale, who filed a patently offensive and frivolous lawsuit on behalf of reactionary Japanese factions seeking to suppress a Comfort Women memorial in Glendale because history hurts their fee-fees. In Aggravation: revisionists and atrocity apologists. In Mitigation: none.

Professor Thane Rosenbaum, who tried to do for censorship what John Yoo did for torture: make a legal case for it. Rosenbaum put logic and First Amendment doctrine in stress positions in an effort to justify broad and unprincipled "hate speech" laws. In Aggravation: "Fire in a crowded theater." In Mitigation: As an academic, has had no exposure to adversarial testing of his awful legal theories.

Jim Ardis, Mayor of Peoria, who abused the power of the state to get search warrants to identify and raid someone who authored a clearly satirical Twitter account about him. In Aggravation: Lack of remorse, open use of lap-dog cops and judges. In Mitigation: Streisanded into the stone age.

Bergen Community College, which forced a professor on leave and required him to visit a psychiatrist because he posted a picture of his young daughter in a Game of Thrones t-shirt. In Aggravation: Went straight for the "OMG Virginia Tech think of the children!" excuse. In Mitigation: As modern college administrators, deprived of role models displaying common sense, proportion, or shame.

Dale D. Berkley, Senior Attorney with the United States Department of Health and Human Services, who sent a threatening letter to a blogger over a patently satirical post on government letterhead. In Aggravation: Your tax dollars paid for that. In Mitigation: what else is he going to do all day?

"Crisis Manager" Xavier Hermosillo, who was hired to help repair the reputation of the California town of Murrieta after its residents screamed at buses full of kids, and shrewdly elected to threaten a cartoonist with . . . we're still not sure exactly what. In Aggravation: YOU HAD ONE JOB. In Mitigation: To be fair, threatening cartoonists is a step back from screaming obscenities at kids on buses.

Miles Sisk, who sought to bring the mighty power of the University of Oregon government to bear against mean students who used memes to make fun of student senators. In Aggravation: Betokens doom of our civilization. In Mitigation: where's he gonna learn better?

Ares Rights, a shadowy firm that continues to abuse the DMCA in an effort to suppress reporting on and criticism of clients including the Ecuadorian government. In Aggravation: Persistent, utterly amoral. In Mitigation: managed to shut up Adam Steinbaugh for several minutes.

Roca Labs, which sells pink slime you eat to stop feeling so empty inside, and which is intent on one-upping Prenda Law by suing EVERYONE FOR ALL THE SPEECH. In Aggravation: Preposterously litigious and shamefully intolerant of criticism. In Mitigation: High potential for long-term entertainment and eventual cinematic flame-out.

Ken and Patrick of Popehat, who used Popehat's comments and Twitter feed as their own living room and ejected people who annoyed them when the mood struck. In Aggravation: Remorseless, rude, absent-minded, foul-mouthed, generally douchey. In Mitigation: Only idiots think that's censorship.

Voting closes at 5:00 Pacific Time on January 2, 2015.

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Popehat Signal: Help Fight the Censorious Villainy Of Roca Labs

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New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

It's time to light the Popehat Signal to find pro bono assistance for citizens threatened with a bogus and censorious lawsuit.

The cartoonish villain of this story is Roca Labs, whose belligerent attempts to silence critics inspired my post last month. Roca Labs, you may recall, produces a pink slime that one is supposed to eat to suppress the appetite. Roca Labs is pathologically adverse to criticism, and therefore has hit upon an increasingly familiar tactic — they require at least some of their customers to sign contracts promising not to criticize them at all. Based on those contracts, they filed a lawsuit against Pissed Consumer.com, a gripe site that printed complaints by their customers. Their quasi-legal flailing became more desperate when First Amendment heavyweight Marc Randazza took up PissedConsumer.com's defense.

Now Roca Labs has crossed the Rubicon from mildly entertaining legal buffoonery to outright despicable abuse of the system calculated to suppress not only the right to free speech but the right to petition the government. As TechDirt first reported, Roca Labs has now sued — in Florida — three of its customers from other states. What's notable about these three customers? One of them provided witness testimony in Roca Labs' lawsuit against PissedConsumer.com. Roca Labs has previously complained about many different customers exercising free speech, but now wantonly targets just these three consumers, one of whom just happened to be a witness against them.3 Roca Labs is demanding damages, attorney fees, and an injunction prohibiting these consumers from criticizing Roca Labs. As Techdirt points out, Roca Labs' attorneys rather comically assert that the defendants' criticisms are "defamation per se" because they agreed in advance contractually that they would be. That's not how it works, dipshits.

Roca Labs isn't a full Prenda yet, but by God, it's trying.

Those three defendants need help. Even when a suit is patently frivolous and vexatious, defending it — particularly in a distant state — is ruinously expensive. That's Roca Labs's purpose — not to win on the merits, but to silence critics through cynical abuse of the legal system. These three defendants can't afford to hire lawyers in Florida. If they don't get help, Roca Labs wins through manipulation of a broken system.

You can help. If you are a lawyer admitted in Florida, you can act, at least, as local counsel. If you are a lawyer in another state, you can help Florida counsel. If you're just someone with a voice on the internet, you can help get the word out about Roca Labs and its contemptible behavior, and help these people find pro bono legal assistance. (Some sort of fundraising campaign, at least for costs, is also a possibility, though the defendants should get independent legal advice about that.) You can also get the word out about the unethical and repulsive behavior of the attorneys who filed this suit, Nicole Freedlander and Paul Berger of the "Hurricane Law Group." Berger has also been involved in threatening bloggers and witnesses.

And finally, please help circulate and promote this question: why would any sensible person consume a weight-loss product from a company that sues customers who criticize its safety, value, or efficacy? Does that sound safe to you?

By the way, this is not the end of Roca Labs' bizarre behavior — stay tuned for more.

Fight evil.

Federal Court Dismissed Thoroughly Evil Litigation Against "Comfort Women" Memorial

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Back in February I wrote about a rather despicable lawsuit filed by Japanese-American plaintiffs seeking to remove a statue in Glendale, California commemorating the "comfort women" — women enslaved as prostitutes in World War II by Imperial Japan. The plaintiffs argued that Glendale's statute interfered with the United States' diplomatic relations with Japan, thus violating the Supremacy Clause. I'm pleased to report that United States Judge Percy Anderson — not a judge you want yelling at you, for what it is worth4 — has dismissed the case without leave to amend.

The plaintiffs, you might recall, were represented by megafirm Mayer Brown. This resulted in really awful publicity from Mayer Brown, not just from pipsqueaks like me, but from Above the Law and Marc Randazza. Mayer Brown soon substituted out of the case in favor of a rather smaller firm. Meanwhile, defendant the City of Glendale – ably represented by their City Attorney's Office and by competing megafirm Sidley Austin — filed a motion to dismiss the case, arguing that the plaintiffs were clearly incorrect in arguing that Glendale's comfort women statute interfered with the United States' international relations. The motion is top-notch work; I've uploaded a copy here.

In his ruling, Judge Anderson found that the plaintiffs had not alleged any specific facts — as opposed to conclusions — supporting the notion that a city's monument could interfere with national diplomacy. Absent such facts, the complaint failed. Judge Anderson echoed the argument made by many critics that the plaintiffs' theory would make a wide swath of public monuments vulnerable to litigation:

Any contrary conclusion would invite unwarranted judicial involvement in the myriad symbolic
displays and public policy issues that have some tangential relationship to foreign affairs. For instance,
those who might harbor some factual objection to the historical treatment of a state or municipal
monument to the victims of the Holocaust could make similar claims to those advanced by Plaintiffs in
this action. Neither the Supremacy Clause nor the Constitution’s delegation of foreign affairs powers to
the federal government prevent a municipality from acting as Glendale has done in this instance . . . .

Judge Anderson therefore dismissed the federal claim and declined to exercise jurisdiction over the remaining state law claim. He also found that the City's anti-SLAPP motion was without merit because it was directed to a federal claim: generally speaking state anti-SLAPP statutes can only be used against state claims. That ruling spared Judge Anderson the more difficult question of whether a municipality has speech rights covered by the anti-SLAPP statute.

This is the right result. Plaintiff's claim on behalf of reactionary Japanese political interests were only the appetizer; the main course would have been suits against many Armenian Holocaust memorials, brought on behalf of the Holocaust-deniers of Turkey. Citizens, through their local governments, ought to commemorate history as they see fit.

Does "Public Figure" Mean "Brown Person Arbitrarily Noticed By Glenn Beck"?

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Glenn Beck does not impress me as a free speech hero. After all, he brought a World Intellectual Property Organization suit against a satirical website that annoyed him and got thoroughly curb-stomped by Marc Randazza, as one does.

Now he's in federal court, defending his right to accuse random people of terrorism when the government has tragically failed to perceive their clear dangerousness and terroristyness.

The case involves Abdulrahman Ali Alharbi, a young Saudi student injured in the Boston Marathon bombing. Law enforcement rather quickly decided that he was a witness, not a suspect. But Glenn Beck knows better than professional law enforcement — which after all is run by an oligarhy — and proceeded to tell his viewers that Alharbi was surely involved in the bombing as a financial backer. Why would the authorities lie and conceal Alharbi's wrongdoing? Do you even have to ask? Because Obama. Haven't you ever watched Glenn Beck?

Alharbi sued Beck for defamation in federal court in Boston. The complaint is here. Now Beck has moved to dismiss, asserting that (1) Alharbi should be treated as a public figure, (2) if Alharbi is a public figure he has to prove that Beck acted with "actual malice," and (3) Alharbi hasn't alleged any facts that support actual malice. The motion is well-briefed on both sides: here are the motion to dismiss, Alharbi's opposition, and Beck's reply.

In defamation, deciding the applicable standard often effectively decides the case. The "actual malice" standard applicable to defamation suits by public figures is very difficult to meet. If the court treats Alharbi as a public figure, it will be extremely difficult for him to prove that Beck either knew that what he was saying was wrong or deliberately ignored signs that he was wrong.

The case likely turns, then, on whether Alharbi should be treated as a public figure. He might be one voluntarily, on the theory that he made himself a public figure through some voluntary contact with the press. That's the theory on which Richard Jewell and Stephen Hatfill lost. Alternatively, he might be an "involuntary public figure" — a fairly narrow category applied to people thrust against their will into a spectacle.

Beck's argument is that Alharbi spoke to the press, becoming a voluntary public figure, and that he was at the center of a dramatic event and an investigation, making him an involuntary public figure. Alharbi argues that Beck is bootstrapping, and that Beck's argument suggests that Beck can unilaterally transform a target into a public figure and then defame him with near-impunity. Beck's argument is more than a little unsettling and unflattering:

In addition, Plaintiff embarked on a course of conduct that was reasonably likely to result in public attention and comment on his background, activities, and immigration status. By behaving suspiciously at the Marathon finishing line when the bombs detonated (Ex. 2, DEF 0046), thereby causing his detention and a background check by law enforcement, Plaintiff became the focal point of an ongoing exchange between executive and legislative branch officials at the highest levels of the United States government regarding the efficacy of its counterterrorism program.

That's particularly disturbing because, as Alharbi points out, most of it is apparently bullshit.

I think Alharbi has, and should have, the edge on this motion. Even though federal courts increasingly require plaintiffs to plead specific facts to support their accusations, in this case the fact that Beck continued to accuse Alharbi after law enforcement cleared him is likely enough to permit an inference of actual malice, which is enough to defeat a motion to dismiss. Whether Alharbi made himself a public figure by talking to the press is best resolved through a summary judgment motion after discovery into the nature and extent of his press contacts.

Note that Alharbi attracted Beck's rather wandering and disturbed attention because someone in federal law enforcement leaked to the media that he was being investigated. If the "involuntary public figure" standard is applied to Alharbi, it effectively means that law enforcement can make you into a public figure through leaking information about you being investigated, even if you've done nothing wrong. I've long thought that journalists have a blind spot about leaks, in that they convince themselves that the information in the leak is the story, not the government's willingness to harm someone by leaking. Journalists tend to be interested in the story "X is being investigated," and not so much in the story "law enforcement is willing to leak suspects to test the waters or soften them up or for other tactical advantages," which strikes me as credulous and submissive to power.

The public figure rule and the actual malice standard should be applied broadly to maximize protection of free speech. But Glenn Beck's bizarre and irrational conduct here is disturbing, as is the leak that led to it.