Author: Ken White

5

Jury Finds Jesse Ventura's Reputation Susceptible To Harm

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Professional wrestler Jesse Ventura, who fell upon hard times and was forced to lower himself to politics, has won $1.845 million today in a defamation suit against the estate of the late Chris Kyle.

Kyle wrote a my-life-as-a-Navy-SEAL book describing a bar brawl with an unnamed person during a wake for a fellow SEAL; he described this person as disparaging the United States, saying that SEALs deserved what they got, and later went down after one punch from Kyle. Kyle later stated publicly that the punchee was Ventura. Ventura sued, claiming that he didn't say those things and wasn't punched by Kyle. The jury — which heard the late Mr. Kyle testify on video — apparently believed Ventura and didn't believe Kyle. They awarded $500,000 for defamation and the rest for "unjust enrichment," apparently on the theory that Kyle boosted the book — and made $6 million on it — by leveraging the lie.

The legal issues presented are pretty straightforward — it's clear that Ventura is a public figure, and clear that the story Kyle told is a claim of fact that, if false, could be defamatory. For the most part, the parties sparred over whether the events happened, whether Ventura could prove they didn't, and whether Ventura could prove the statements caused him harm. Kyle's lawyers also argued that Ventura could not prove that Kyle acted with actual malice; this strikes me as a difficult argument, since it seems rather self-evidently malicious to lie about witnessing someone bad-mouth SEALs and then about punching them.

If you'd like to know more about the case, Kyle's late-in-trial motion for a directed verdict is here, and Ventura's opposition is here. They do a fairly concise job of stating each side's position and view of the evidence. In addition, here are the jury instructions the court gave, which show you what standard the jury applied in the event that it paid any attention to instructions.

I'm not a fan of Ventura. But I think that if Kyle made up a story about Ventura bad-mouthing SEALs at a wake, and made up a story about punching him out, that's defamatory. That's what the jury apparently believed. Some people think it's terrible for Ventura to pursue a claim against Kyle's estate after Kyle died. If, as Ventura suggests, Kyle leveraged the Ventura issue into $6 million in book sales, I don't share that view.

37

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.

21

Sorry, Melissa

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I have a latecoming apology.

25 years ago this summer, when I interned at the Los Angeles County District Attorney's Office during college, I was assigned to a project with Melissa, another intern. We helped research and design "caught" posters. Imagine a wanted poster with a person's photo, only instead of saying the person is wanted, it says they have been convicted of a crime and states their sentence. The DA's Office printed the posters and put them up in the gang-controlled neighborhoods from which the defendants sprang. The DA's office thought that public shaming of gang members through four-color posters in their neighborhoods would be a effective deterrent against armed robberies and drug murders. That was the extent of the DA's Office's grasp of sociology. My excuse is that I was 19.

Anyway, one Friday when Melissa left early, I left her a panicked message saying that the poster we had just crafted and released and had posted was wrong, because the defendant — let's call him John Smith — had not been convicted of homicide in violation of California Penal Code section 187, but of unlawful operation of an unlicensed riding mower in violation of City Code section 187, and that there was talk of a lawsuit and a press conference, and the DA wanted to talk to us. This was hard to confirm or deny on a weekend because there was no internet at the time on which Melissa could look up either Mr. Smith or the LA City Code.

That was mean. Sorry Melissa.

48

"Crisis Manager" Xavier Hermosillo Shrewdly Defuses Immigration Tumult By Threatening Cartoonist

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Murrieta, California is a town recently known for angry crowds screaming at Immigration & Customs Enforcement buses full of kids. Apparently Murrieta thinks that sort of coverage is not a selling point for the town, because they hired Xavier Hermosillo, a "Crisis Manager." This is a typical and prudent move. Across America, if you ask public officials "how can we recapture the media narrative, calm hostility and anger, and promote sensible dialogue," they will inevitably reply "hire an internet talk show host."

Hermosillo set to work. What could he do to calm the troubled waters, improve the town's reputation, and capture the sympathy of the media?

Of course! He could make moronic defamation threats against Lalo Alcaraz, a political cartoonist who writes the strip La Cucaracha! I can see no way that could go badly.

Hermosillo was apparently agitated over a La Cucaracha cartoon that suggested the bus-screamers were racist. A political cartoonist commenting on politics and public behavior? THIS WILL NOT STAND!

IFORGOTHOWTOCRISIS

For the picture-impaired: Mr. Hermosillo said "Lalo, There IS a fine line between your Constitutional right to draw cartoons and expressed [sic] your opinions, and falsely, deliberately, and maliciously labeling and attacking an entire community as racist or as 'Hate City.' You are working overtime to damage Murrieta and such a false premise is actionable. There's a fine line between humor and stupidity. You may have crossed that line at your own peril."

This is, of course, utter bollocks. An "entire community" can't file a defamation suit. Even if they could, political cartoons are at the very core of what the First Amendment protects. Like it or hate it, Lalo's cartoon is a classic example of a political opinion, stated cartoonishly, in reaction to public facts. You may disagree with Lalo's suggestion that the bus-screamers were racists, or that their behavior is fairly attributable to the community of Murrieta, but nobody with the most minimal grasp of defamation law or the First Amendment would think it's an actionable false statement of fact.

Under the familiar Streisand Effect, this buffoonish threat will probably draw far more attention to the comic, draw more negative attention to city leadership ("we paid tax dollars to hire this cretin?"), and make the media substantially more hostile, if that is possible. One thing is for certain: it will not promote any intelligent debate on immigration whatsover.

You would think that a "Crisis Manager" would understand the Streisand Effect, wouldn't you?

27

Gleeful Troll Todd Kincannon Files First Amendment Suit Against South Carolina Attorney Authorities

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Todd Kincannon is a performance artist working in the medium of outrage — his own, and that of easily gulled critics. Surely you've heard of him. Perhaps you noticed him the time he got Salon in a tizzy over his obnoxious tweets about Wendy Davis, or the time he agitated the Huffington Post with his grotesque tweets about Trayvon Martin, or the time he enraged Daily Kos (and, for that matter, nearly everyone else) by saying transgendered people should be put in camps. Todd Kincannon would like to be Ann Coulter if he grows up, but lacks the subtle charm. Like Coulter — or like a dilatory burglar who only robs the homes of people who leave their doors unlocked — Kincannon relies on people agreeing to be outraged by someone whose purpose is outraging them for lulz, political advantage, and profit.

Now Kincannon, an attorney, claims he is being censored by South Carolina attorney discipline authorities. He's filed what I will very generously describe as a federal lawsuit over it.

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23

Monday Schadenfreupdates (Now Updated!)

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Why do bad things happen to good people? I can't tell you that. But I can tell you that bad things happen eventually to bad people.

For instance:

1. Perhaps you remember David Bell, chief fraudster of the U.S. Telecom fraud ring discussed in my "Anatomy of a Scam" series. He's had criminal charges pending in San Bernardino County since 2011. Recently he entered a no contest plea to two counts of grand theft auto, plus enhancements for priors, thus not admitting guilt but admitting that the government could prove those particular counts against him. He'll be sentenced in September. And what about the feds? Be patient . . . .

2. You probably also remember Dennis Toeppen, the oddly truculent head of bus company Suburban Express, who liked to threaten online critics with lawsuits and heap them with abuse. Ars Technical reports that Toeppen was arrested on two misdemeanor counts of electronic harassment. I'd reserve judgment until seeing the basis for the case; many cyberbullying and cyberstalking statutes are ridiculously overbroad and a violation of the sacred First Amendment right to be a turd. Ars Technica points out a recent Yelp thread in which Toeppen, true to form, lashes out at bad reviewers; it's bad business, but almost certainly protected speech.

3. The Prenda Law gang, about whom I've written a word or two, suffered another setback last week in the United States Court of Appeals for the D.C. Circuit. On May 27th, the D.C. Circuit overturned a trial court order permitting AF Holdings — a Prenda shell — to take early discovery from Cox Communications of the accounts associated with various IP addresses. The decision did not go well for Team Prenda. The D.C. Circuit recognized the various tactics criticized by other courts across the country, savaged AF Holdings' theories of why they would have personal jurisdiction over nationwide downloaders in D.C., and undermined Prenda's arguments about why they could combine multiple defendants in the same case. The court sent the case back to the trial court to see whether sanctions were appropriate for AF Holdings' notorious use of an allegedly forged signature on a copyright assignment. Protip — if a United States Court of Appeals refers to you as "law firm," with scare quotes thus, you're gonna have a bad time.

The wheel turns slowly, but it turns.

Update: Now With More Schadenfreude!

4. In Oregon Troy Sexton — who responded to the Popehat Signal and won an anti-SLAPP motion on behalf of an anti-telemarketing blogger sued for defamationThatLeftAMark has been awarded around $41,000 in fees and costs against the plaintiff, attorney F. Atone Accuardi. Keep those fee awards against censors rolling in, people.

48

Poseur Pastor Pouts, Pursues Preposterous Proceeding, Procures Painful Penalty

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Ergun Caner was angry.

There he was, a successful man of God: a published author, Dean and President of the Liberty Baptist Theological Seminary and Graduate School, a sought-after inspirational speaker. Suddenly, crass miscreants laid him low. Critics pointed out he told puzzlingly inconsistent stories about his background. Though public records and his own book suggested that he emigrated from Sweden to Ohio at the age of four, in his inspirational speeches he claimed he had been raised in Turkey, learned of America only through television, and trained as an Islamic jihadist.

Perhaps the story of a foreign jihadist converting to Christianity was more inspiring than the story of an Ohioan converting.

Liberty University conducted an investigation and removed him. But though he found new employment, Egun Caner did not view the matter as resolved. He hungered.

In 2013, he filed a federal complaint in Texas against Jason Smathers and Jonathan Autry, men who posted to YouTube two videos of Caner's . . . shall we say imaginative public presentations. Caner claimed violation of a purported copyright in the videos. He sought damages, attorney fees, and an injunction against posting of the videos.

In other words, Caner sued someone for posting proof that he had been telling inconsistent stories about his background — that he is a fabulist.

Jonathan Autry agreed to take the videos down — no doubt because of the ridiculous expense of a lawsuit. That wasn't good enough for Caner, who continued to demand more concessions. That, as it turned out, was a very poor decision. Autry and Smathers, very ably represented pro bono by Josh Autry and Kel McClanahan, filed a strong motion to dismiss, arguing that (1) Caner could not demonstrate that he had a copyright in the videos, and (2) the posting of them to prove Caner's mendacity was classic fair use.

Caner and his attorney did not take this motion very seriously, I think. I would call their opposition brief nasty, brutish, and short, but it's not substantive enough to be nasty or brutish. It's a feeble two-page gesture that ignores most of the motion's arguments.

United States District Judge Norman K. Moon was unimpressed. He granted the motion and dismissed Caner's case in an extremely thorough (and no doubt very embarrassing to Caner) written opinion.1 First the court noted that Caner had conceded that he never filed a copyright application for one of the videos; that's a prerequisite to maintaining a copyright suit. Second, the judge agreed that the posting of the video was classic fair use, because it was a critical non-commercial use designed to impact discussion of Caner's dishonesty. The court made short work of Caner's thoroughly ridiculous arguments: that the defendants were not protected by fair use because it was the work of a "vindictive" "cyber terrorist", that the defendants were "not qualified" to offer criticism of Caner, and that fair use only protects "appropriate criticism from people that are qualified to render those opinions i[n] the market place and exchange of ideas in academia and elsewhere.” This is too much whaarbaargl.

But we haven't even gotten to the good part yet.

Autry, as the prevailing party in a copyright litigation, filed for attorney fees. Last week, in a devastating opinion, Judge Moon granted $34,262.50 in attorney’s fees and $127.09 in costs to Autry's attorneys, agreeing that Caner's litigation conduct warranted it. The review of Caner's conduct is brutal. The court ruled that Caner (1) pursued the case after Autry took the videos down, (2) demanded, as a condition of settlement, that Autry's young children sign a non-disparagement agreement, (3) delayed the case, (4) failed to seek discovery, opposed the motion to dismiss on the grounds that he needed to take discovery, but could not articulate what discovery he needed, (5) contradicted himself, (6) made unreasonable legal arguments without any support (like the "you must be qualified to criticize" argument), and most importantly (7) filed the case to silence criticism:

In this case, Plaintiff filed a copyright infringement suit to stifle criticism, not to protect any legitimate interest in his work. He and his counsel prolonged this litigation, costing Defendant and his attorney valuable time and money. Defendant’s counsel has set aside other
profitable matters to attend to this meritless litigation, and deserves compensation for doing so. Likewise, Plaintiff should be deterred from seeking to use the Copyright Act to stifle criticism in
the future.

A-W-E-S-O-M-E, that spells Judge Moon.

Caner has failed utterly, has been exposed for his censoriousness, and has had his dishonestly much more thoroughly documented and widely publicized than it would have been if he had not been such a vindictive jackass.

This should happen more often. As I suggested yesterday, intellectual property claims are increasingly abused to silence criticism. Judges ought to avoid their normal squeamishness about attorney fee awards and hammer the plaintiffs in meritless and censorious cases.

Please join me in congratulating the victorious pro bono team.

23

Popehat Signal Update: Dream Team Victory In Texas

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I bring good news: top-notch work by generous and dedicated lawyers has produced a free speech victory in Texas.

Last year I lit the Popehat Signal seeking help for J. Todd DeShong, a blogger and AIDS activist. DeShong, a longtime critic of the nutty and conspiratorial junk science occasionally directed at AIDS issues, ran afoul of Clark Baker, an ex-cop and full-blown AIDS denialist who offers "expert" "witness" services. You may recall my description of Baker's phone call to DeShong's mother:

I interviewed Mr. DeShong's mother, a sweet lady with a spine of Texas steel. She told me about how Mr. Baker called her out of the blue and ranted at her. Mr. Baker angrily denounced her son, and told her that, as a police officer, he knew about dangerous people, and that Ms. DeShong should fear that her son would kill her in her sleep. He also threatened that he was arranging for doctors Mr. DeShong had criticized to sue him for defamation. Ms. Deshong pointed out that such a suit would bring no joy; Todd DeShong is not a rich man. "But you have money, right? You have a house, right?" responded Mr. Baker, implying that he might put her assets at risk. "He thought he could intimidate me. He didn't know who he was dealing with," said Ms. DeShong, who sounds like a good person to have at your back.

Baker sued DeShong in federal court in Texas over DeShong's criticism of Baker's AIDS-denialist rhetoric and his "expert" "witness" service the HIV Innocence Group. Baker claimed that DeShong's criticism was not only defamation, but violation of the HIV Innocence Group's trademark rights in its name. Baker's motive may have been mixed: he may have wanted to silence DeShong, but he may also have wanted to use the federal suit to pursue his conspiracy theories about AIDS researchers. I cannot say what his lawyer was thinking, if he was.

Such federal litigation is ruinously expensive to defend; DeShong couldn't afford a defense and Baker might have succeeded in silencing critics through abuse of the legal system. Fortunately, lawyers who care about free speech rode into the breach: D. Gill Sperlein, Paul Alan Levy of Public Citizen, Gary P. Krupkin, and Neal A. Hoffman filed motions to dismiss (attacking the thoroughly specious trademark claims) and a strong motion under Texas' relatively new anti-SLAPP statute.

Last week the dream team won. United States District Judge Sam R. Cummings granted DeShong's motion to dismiss the trademark claims, and then refused to hear the state law claims and dismissed them. The court's ruling held the line on a key free speech concept: using a company's name to criticize it does not violate the company's trademark in the name. Baker had claimed that sites like "HIV Innocence Group Truth" violated trademark rights and were part of an effort to destroy him by discrediting him. But Judge Cummings pointed out "[n]o reasonable person would take one look at DeShong's website and believe that Baker authorized its content." Moreover, the court explained, trademark law doesn't protect a company from criticism. The Lanham Act protects a competitor from profiting from the misuse of another company's trademark; it does not protect a company from vigorous and even ruinous criticism employing its name. Judge Cummings also rejected Baker's argument that DeShong violated trademark rights by using a URL likely to dominate search results for "HIV Innocence Group." That theory, too, would have allowed the Bakers of the world to abuse the Lanham Act to prevent criticism.

I suspect Paul Alan Levy, who has done a lot of important work protecting "gripe sites" and critics from bogus trademark claims, had a strong hand in winning this issue.

Having dismissed the federal trademark claim, Judge Cummings declined to exercise supplemental jurisdiction over the state claims like defamation, finding that state issues (like application of Texas' anti-SLAPP statute) would predominate over federal issues. Therefore he didn't reach the anti-SLAPP motion. That's an increasingly common approach by federal judges in such cases; it's what the judge did in the censorious Naffe case in which I was co-counsel.

Baker has appealed, and could conceivably re-file his censorious screed in Texas state court. If he does, the dream team's work on the anti-SLAPP motion is already done, and I suspect Baker will find no joy before a Texas state judge. I'd lay very good odds that Baker will lose his appeal. Meanwhile, I hope that DeShong's legal team seeks and recovers legal fees from Baker based on winning the Lanham Act claim. The suit was contemptible and represents exactly the sort of case in which federal courts should use their statutory power to award attorney fees to deter such abuse of the system.

Please join me in expressing admiration and thanks to Gil, Paul, Neal, and Gary. Their generosity with their time and talents didn't just help DeShong's free speech: it helped yours. Contributions like theirs are essential to defending free speech principles in a broken system that allows unscrupulous clients and lawyers to silence dissent by inflicting ruinous defense costs. They are heroes.

95

Long Time, No See

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I've been away from the blog for a while.

There will come a time when I'll write about the circumstances of my absence, which were unpleasant. But not today. For now, I'd like to express my gratitude for the support of my family, my co-bloggers here, and the friends who have written and offered good cheer. I'm very fortunate.

I'm back. Send in those story tips, requests for free speech help, abusive and confusingly scatological emails, and thus-and-such.

93

Department of Health And Human Services Threatens Blogger Over Satirical Posts

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The blog Addiction Myth is devoted to a very out-of-the-mainstream proposition about medicine: that the entire concept of drug and alcohol addiction is a scam perpetrated by law enforcement, rehab groups, and the entertainment industry. By contrast, the United States Department of Health and Human Services is devoted to mainstream medical and scientific propositions2 It is perhaps inevitable that these two worldviews would conflict one day.

But it was not inevitable that HHS's Office of General Counsel would bumptiously threaten Addiction Myth over obviously satirical posts. That, given minimal good sense, could have been avoided.

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23

D.C. Court of Appeals Agrees To Hear Merits of Anti-SLAPP Appeal In Michael Mann's Defamation Case

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In our last episode of the saga of Michael Mann's defamation suit against National Review, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg, I explained that the matter was wrapped in a dry, but crucial, procedural issue: the District of Columbia Court of Appeal was faced with whether a defendant who loses a motion under D.C.'s anti-SLAPP law may appeal immediately, or must wait until the end of the case.

As I argued, the strategic implications are dire for defamation plaintiffs and defendants: if anti-SLAPP denials are not immediately appealable than much of the value of the statute is lost to defendants, but if they are immediately appealable then defendants may often delay defamation cases for years.

On Wednesday3 the D.C. Court of Appeal decided to decide, probably. That is, they issued an order denying Mann's motion to dismiss the appeal, and accepting all of the amicus briefs on the issue, and directing the parties to brief the issue of appealability along with the merits of the anti-SLAPP issue. On the one hand, this signifies that the Court didn't think that the procedural issue was completely obvious, and therefore didn't dismiss the appeal or accept it without reservation. On the other hand, the Court still wants to hear more arguments about whether it should be hearing more arguments. The Court also ordered that the appeal be expedited, which means something somewhat different than you or I mean when we say "expedited."

The upshot: the defendants (save for Mr. Steyn, who apparently is not joining this appeal) will get to brief their arguments that Mann's lawsuit should have been dismissed under D.C.'s anti-SLAPP statute. Mann will get to re-make his argument that the appeal should be dismissed because the defendants shouldn't be able to appeal until the end of the case. The Court will then either punt by dismissing the appeal as premature, or agree that D.C. anti-SLAPPs are immediately appealable and address the anti-SLAPP merits.

Stay tuned. The First Amendment and anti-SLAPP issues in the case are very important, and I hope the Court reaches them.

Why Should Guns Trump Principles?

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Charles W. Cooke highlighted this story of state legislation proposed by Florida Republicans:

With supporters pointing to Second Amendment rights, the Florida House on Tuesday gave final approval to a bill that seeks to prevent insurers from denying coverage or increasing rates based on customers owning guns or ammunition.

. . .

House members voted 74-44, along party lines, to approve the bill (SB 424). The Senate also passed the National Rifle Association-backed bill last month, meaning the measure is ready to go to Gov. Rick Scott.

The bill would apply to property and automobile insurers and add language to part of state law that deals with “unfair discrimination.” As an example, the bill would seek to block insurers from refusing to issue policies because of customers’ lawful ownership or possession of firearms. Similarly, it would bar them from charging “unfairly discriminatory” rates based on gun ownership or possession.

The Republican party attempts, with mixed success, to brand itself as the party of small government, reduced regulation, and free markets. This bill illustrates why that branding is not entirely successful — because too many Republicans, given a favored issue (Guns! Drugs! Crime!), are as unabashedly nanny-statish as Bloomberg on his most Big-Gulp-decrying day.

The proposition is, apparently, that because gun ownership is a cherished right under threat, private insurance companies should be regulated and precluded from charging gun-owning customers more based on the insurance companies' risk assessment. I suppose this is a coherent argument taken in isolation; it's just not consistent with economic conservatism. Saying "greedy insurance companies should be regulated and not permitted to charge what they want, because the free market isn't working" sounds, instead, more like a classic progressive position.

Consider, for instance, the position of Republican state representative Matt Gaetz:

But bill sponsor Matt Gaetz, R-Fort Walton Beach, said Floridians have a constitutional right to bear arms, and even one case of insurers taking action because of gun ownership is “too much.”

“How much discrimination based on the exercise of a constitutional right is tolerable?” Gaetz asked.

Gaetz apparently believes that a private insurer charging a customer more based on its own risk assessment is a violation of that customer's constitutional right to do whatever he or she wants. So, Mr. Gaetz: would an insurance company that offers policies covering defamation be violating my First Amendment rights if it charged me — a mouthy blogger — more than a homebound shut-in who never utters or writes a word? Does an insurance company interfere with my right to procreate if it charges me more for a family health plan than an individual one? Should private insurance companies assume the risk of our exercises of constitutional rights? If the government disagrees with the private insurance market's risk assessment, should it intervene? Is it a good thing to increase the power of government bureaucracies and the courts to regulate whether insurance rates are "discriminatory?" Is the insurance market broken and incapable of addressing anti-gun-bias by driving customers away from gun-penalizing insurers and to gun-friendly insurers? I can see why someone would say those things, Mr. Gaetz. I just find them difficult to reconcile with your other positions:

Healthcare and Insurance

Matt Gaetz believes that health care decisions should be made by doctors and patients, not the government. That’s why Matt Gaetz wants to make sure that you can keep the health insurance you currently have. He will fight to keep health care costs down by eliminating junk lawsuits and fraud in the system.

Uh-huh.

This is not new. Florida is the state that passed a patently unconstitutional law purporting to regulate what doctors could ask their patients about guns. Florida is the state that decided the right to carry a gun trumps the right of private property owners to control their property.

Treating guns as an asterisk to principles — treating the Second Amendment as if it empowers the government to regulate private conduct, rather than just limiting the government — is incoherent and un-conservative.

The Procedural Tail That Wags The Substantive Dog: Update On Michael Mann's "Hockey Stick" Lawsuit

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I've collected, under this tag, my posts about Michael Mann's defamation lawsuit against National Review, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg.

The lawsuit is back to the District of Columbia Court of Appeal upon the National Review's denial of their renewed anti-SLAPP motion. The key issue currently presented is a procedural one that will strike many non-lawyers as irritatingly dry, obscure, and removed from the heart of the case: when a District of Columbia court denies an anti-SLAPP motion under DC's anti-SLAPP statute, can the losing party appeal immediately, or do they have to wait until the end of the case?

Though seemingly procedural, the question has such a substantive impact that it transforms how anti-SLAPP statutes work and how effective they are at stopping and deterring frivolous suits.

Stand by while I put you in a coma with my lawsplaining.

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