A Story About Low-Key Policing and Corduroy

Life

A couple of people have asked me to explain an odd corduroy reference I made on Twitter last night.

Yes, arguably corduroy references are inherently odd. But this one involved blood, and police officers, so it caused some inquiry.

The facts were these: one evening in the late 1980s I was at a friend's house in my home town. Were were on the low roof of his garage. Alcohol was present. We were singing. Neither of us had very good singing voices. That may be why I felt obligated to accompany us on my friend's mother's accordion. That is what we had back then, instead of autotune. If you want to be unpleasantly technical I am not familiar with how an accordion is operated, at least as narrowly defined by uncharitable social convention. However, I believe that unbridled enthusiasm can make up for lack of formal training in many pursuits. There is evidently a difference of popular opinion on this point as it pertains to playing the accordion on a roof at one in the morning.

Eventually a neighbor called the cops, and a police cruiser drove up the street. The officer directed his spotlight on us. We did not stop singing, and I did not stop playing the accordion. Wikipedia explains that intertia is the resistance of a physical object to a change in its state of motion; inertia applies to playing the accordion on a roof. I was committed to it is what I am trying to convey. I remember the officer stood there motionless for several moments, as if evaluating the course of his life that had brought him to this particular circumstance. Eventually he used his car-mounted loudspeaker to say, firmly and slowly,

PUT. THE ACCORDION. DOWN.

I did: not because I had lost inertia or enthusiasm, but because this struck me as so very funny at the time that I doubled over in laughter, dropped the accordion, and rolled off the low, sloped roof into a patch of cacti in my friend's yard. My friend's mother was well before her time with respect to sustainable, drought-resistant landscaping.

The police offer turned off his spotlight, climbed slowly into his car, and drove away. He had accomplished his mission — the neighbors were no longer bothered by someone on a roof playing the accordion — and no further exercise of law enforcement power was warranted.

It took a while for my friend to find me; he was somewhat confused when I abruptly vanished from view on the roof, and for a brief moment he was not certain whether I had fled or possibly been arrested. Eventually, though, he helped me into his kitchen. I was wearing corduroy pants. The cactus needles had driven many durable corduroy threads into my leg, and we sat in the dim light of the kitchen, me in my underwear, picking threads out of my leg, each leaving a disappointing trickle of blood and a puff of corduroy fuzz. This sounds more traumatic that it was; bear in mind that it was the 1980s.

In the years since, I have thought about the police officer. I'm pretty sure he's the same one who used to ticket my late mother occasionally as she veered down Descanso Drive, engine racing in second gear, bringing home take-out to an impatient family. These days, I would likely be arrested, or at least put in the back of the police car for a while. There are formalities to respect and care to be taken and safety to be enforced and there might be an inquiry or a lawsuit if a police officer doesn't fully investigate in such circumstances. But back then, the officer was content to stop the noise, and having stopped it, drive away into a cool evening scented of skunk and honeysuckle.

I have not played the accordion again, although I am not ruling it out.

56 Comments

Time for the Popehat Signal: Missouri Car Dealership Sues Over Criticism

Effluvia

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

It's time for the Popehat Signal, by which we seek pro bono assistance in defending the First Amendment. I learned of this case through Paul Alan Levy of Public Citizen, whose important work in support of free speech I've often praised here.

Dwayne Cooney took his car to Jim Butler Chevrolet of Fenton, Missouri. When most of us leave our cars to be serviced, we're left to guess exactly what the mechanics did to it. But Cooney, who works in security, has a dashboard camera, which he left on. He believed that the footage showed that Jim Butler Chevrolet overbilled and charged for work they did not perform. He posted the footage on YouTube.

Jim Butler Chevrolet claims that Cooney is wrong and has deceitfully edited the video, and that the video does not show all of the work that was actually done. They could have responded to Cooney's speech with more speech, but they took the censorious route and sued for defamation, even going as far as to seek an injunction to take Cooney's videos down. Incredibly, a judge issued a temporary restraining order, a plainly unconstitutional prior restraint of speech.

Missouri attorney Martin J. Buckley, with assistance from Paul Alan Levy of Public Citizen, convinced the judge to dissolve the temporary restraining order. But now Cooley's homeowner's insurance is refusing to cover his defense. The Jim Butler Chevrolet dealership is suing for damages and still seeking to have Cooley's criticism taken down. Cooley needs help. If you are an attorney in Missouri, please consider stepping up to assist him in defending this suit.

You can find Cooley's video here. Paul Alan Levy has the pleadings here. The dealership maintains that Cooley's video was misleading. Without prejudging that claim, free speech disputes are best resolved with competent counsel on both sides. Moreover, I am not inclined to believe a plaintiff who seeks a patently unconstitutional injunction against speech; rather, I'm inclined to view them as someone willing to abuse the legal system to silence criticism.

60 Comments

Anti-SLAPP Victory In Oregon: Anti-Telemarketing Blog Wins Big With Pro Bono Help

Effluvia

Here's a hard fact about free speech: vindicating it in American courts takes either money (and lots of it), or lawyers willing to provide pro bono help. Right is right, and law is law, but court is court — and winning in court generally requires competent representation, which is ruinously expensive for normal people. It's not fair, it's not right, but it's true.

Therefore the vitality of the First Amendment depends not just on the law, but on the service of lawyers like Troy Sexton of Motschenbacher & Blattner LLP in Portland, Oregon.

Last August I put up the Popehat Signal seeking pro bono help for an anti-telemarketing blogger who writes at the Telecom Compliance News Press. The blogger was sued by an attorney named F. Antone Accuardi, who claimed that the blog falsely associated him with companies involved with robocalling and other telemarketing violations.

Troy Sexton stepped up. He filed a motion under Oregon's anti-SLAPP statute in response to Accuardi's complaint, and this March, he prevailed. Accuardi's complaint is here, Sexton's anti-SLAPP motion is here, and the Magistrate Judge's lengthy and detailed order granting the anti-SLAPP motion is here. Sexton's work was absolutely top-notch. The main basis of the judge's order is that the blog's comments of Accuardi were statements of opinion based on disclosed and linked facts about the companies and Accuardi's connections to them, and therefore protected by the First Amendment. It's a very thorough opinion and worth a read if you're interested in First Amendment and anti-SLAPP issues.

This is a tremendous victory for the blog, and for Troy Sexton and his firm. Sexton has a motion for fees pending; though he stepped in pro bono, I hope that he winds up collecting at his full rate from Accuardi. I am more free, and so are you, because people like Troy Sexton are willing to step up and contribute their time and skill. Please join me in congratulating him.

10 Comments

Michael Mann Files Anti-SLAPP Motion Against Mark Steyn's Counterclaims

Law

Last month I critiqued Mark Steyn's counter-claims against Michael Mann in Mann's defamation suit, and predicted that Steyn may have subjected himself to an anti-SLAPP motion.

Yesterday Steyn revealed that Mann has, indeed, filed such a motion.

The motion is here. It's colorable, at least. It makes many of the arguments one would expect when a pro se defendant counterclaims against the plaintiff for suing the defendant.

Do not misconstrue this as bragging that I was particularly insightful or clever. I wasn't. This was a consequence of Steyn's counterclaims that anyone reasonably acquainted with First Amendment law and anti-SLAPP statutes predicted.

Steyn's complaint seems to be that the anti-SLAPP statute hasn't protected him effectively even though his speech is protected by the First Amendment, that even with the statute the litigation has been lengthy and extremely expensive, and that the system is broken. I believe all those things are true. But I don't see that Steyn's approach of going pro se, railing against the court, and raising questionable claims is one that is rationally calculated to produce a better result. To me it too closely resembles the losing strategy of people who refuse to acknowledge the court's authority at all.

I acknowledge that I am a practitioner with a practioner's biases. Steyn, on the other hand, is a writer and advocate of political philosophies rather than of clients. He's free to abandon the strategy urged by lawyers of employing the dry and tedious procedural strategies available to him in favor of spectacle. Perhaps it will even produce a satisfactory result, eventually. But many, if not most, important American free speech victories have been won by time-consuming, expensive, and painstaking legal machinations. It may not be right, but it's true. Steyn would be better served by finding and listening to pro bono First Amendment attorneys. I'm confident there are some that would help him.

Meanwhile, you can support Steyn's legal fight against Mann here. Though I think Steyn's approach is reckless, I also think he is in the right on the free speech issue.

183 Comments

Well, I AM Proud, But . . .

Effluvia

Sometimes that personalized marketing on Facebook doesn't work out quite right.

Ummmmmm

20 Comments

A Few Notes On Lois Lerner And The Fifth Amendment

Law

Today former IRS official Lois Lerner again invoked her Fifth Amendment privilege against self-incrimination and declined to answer questions from a Congressional panel.

Prior to this I had not realized how many people on the internet are experts on the Fifth Amendment and criminal defense.

I have a few comments.

Continue Reading »

233 Comments

LEAVE HOUSTON CITY ATTORNEY DAVID M. FELDMAN ALONE

Law

ATTENTION ENTITLED MISCREANTS IN HOUSTON AND ELSEWHERE:

You may believe that the First Amendment to the United States Constitution gives you a right to petition the government for the redress of grievances. You may also believe that Article I, Section 27 of the Texas Constitution gives you the same right. But those rights must yield to the personal inconvenience and/or annoyance of your betters in government, specifically including but not limited to Houston City Attorney David M. Feldman and the other officials of that city.

SHUT YOUR PIE HOLE YOU NOISY NOISOME VILLEIN.

SHUT YOUR PIE HOLE YOU NOISY NOISOME VILLEIN.

Look, you pack of sticky-fingered dawdlers, these are busy, busy people, doing important government things that you cannot possibly understand. They don't have time to be distracted by your email campaigns addressing things you have the gall to think they ought to do, let alone respond to your confused and ill-penned entreaties. So CEASE AND DESIST. Go back to the way things are supposed to be: your leaders do government and you sit there and take it. Don't make Houston City Attorney David M. Feldman tell you again:

Robert – Please consider this as a formal demand that your client, Uber, cease and desist from transmitting or aiding in the transmission of form e-mails to City officials regarding the adoption of an ordinance to accommodate their enterprise. Despite my informal request to you by telephone on Monday, the excessive number of e-mails has gone unabated, to the point that it has become harassing in nature and arguably unlawful. Failure to cease and desist will be met with appropriate action by the City.

Do you hear that, you pack of querulous intermeddlers? ARGUABLY. UNLAWFUL. By God you had better take that seriously, whatever the so-called Constitutions of the United States or Texas say, because that legal opinion comes from a man who "has been named to Texas Super Lawyer (2004-2009)," which means that he takes marketing very seriously, which in turn demonstrates that he is not a man to be trifled with. No sir. He is paid $350,000 per year to give legal opinions like that so you know they must be of the highest quality.

No go back to watching wrestling or eating pork rinds or whatever it is you normally do when you aren't interfering with the duties of your leaders.

85 Comments

The Kaley Forfeiture Decision: What It Looks Like When The Feds Make Their Ham Sandwich

Law

Yesterday, in Kaley v. United States, the United States Supreme Court ruled 6-3 that a criminal defendant has no right to challenge the pretrial freezing of assets based on a forfeiture allegation in a grand jury indictment, even if the criminal defendant needs those very assets to pay his or her attorney of choice.

The question presented was not whether assets can be frozen before trial — it's old news that they can — or whether they can be frozen even if it deprives the defendant of the ability to pay counsel. The question presented was whether the defendant could ask the judge to review the grand jury's probable cause finding in the course of challenging the freeze. The Court found that the defendant had no such right, because of the trust we place in the grand jury:

A grand jury has already found probable cause to think that the Kaleys committed the offenses charged; that is why an indictment issued. No one doubts that those crimes are serious enough to trigger forfeiture. Similarly, no one contests that the assets in question derive from, or were used in committing, the offenses. See supra, at 5. The only question is whether the Kaleys are constitutionally entitled to a judicial re-determination of the conclusion the grand jury already reached: that probable cause supports this criminal prosecution (or alternatively put, that the prosecution is not "baseless," as the Kaleys believe, supra, at 5). And that question, we think, has a ready answer, because a fundamental and historic commitment of our criminal justice system is to entrust those probable cause findings to grand juries.

As Scott Greenfield puts it:

Indictment = Probable Cause

Forfeiture = Probable Cause

Indictment = Forfeiture

Others, including Scott, have explained what this means: prosecutors can deprive you of the effective defense of your choice by aggressive use of forfeiture statutes. I have seen it done to my clients.

Rather than tread over the ground well-described by my colleagues in the criminal defense bar, today I'd like to describe something else for you: what a federal grand jury proceeding looks like. From 1995 through 2000, I presented cases of varying complexity to federal grand juries as a federal prosecutor in Los Angeles. That experience did not inspire confidence in the process. Rather, it taught me that the adage that a grand jury will indict a ham sandwich is an understatement. A better description would be that the prosecution can show a grand jury a shit sandwich and they will indict it as ham without looking up from their newspapers. The notion that the Supreme Court relies upon — that the grand jury has a "historical role of protecting individuals from unjust persecution" — is not a polite fiction. A polite fiction would have some grounding in reality. It's an offensive fiction, an impudent fiction, a fiction that slaps you across the face and calls your mother a dirty bitch.

Continue Reading »

62 Comments

Controlling Public Art By Lawsuit: Japanese-American Citizens Sue To Remove "Comfort Women" Memorial

History, Irksome, Law

I have written about many maddening lawsuits at Popehat. But I cannot remember a lawsuit that so immediately repulsed and enraged me.

During the Second World War, the Empire of Japan sexually enslaved women — at least tens of thousands, and perhaps hundreds of thousands — to be raped by its troops. They were forcibly seized from the countries Japan occupied, primarily Korea. Though Japan officially apologized in 1993, in recent years right-wing forces in Japan have been seeking to retract those apologies, asserting that the enslaved women were actually voluntary prostitutes, or that the Empire itself wasn't involved in any coercion. This attempted walkback can best be understood in the broader context of Japanese nationalist politics, in which right-wing politicians play to their base by doing things like visiting shrines honoring war criminals.

Now Japanese-American plaintiffs, served by American megafirm Mayer Brown, are pursuing the agenda of reactionary Japanese politicians through despicable litigation.

Glendale, California is a suburb of Los Angeles. I grew up next door and still live there. It's incredibly diverse with many thriving ethnic communities. In 2013 the City of Glendale erected a modest memorial to the comfort women of World War II in a public park next to the library. Japanese politicians were enraged and have repeatedly demanded that the memorial be removed. The federal lawsuit filed by Mayer Brown seeks to have the memorial removed by force of law.

The plaintiffs in the lawsuit — which I have uploaded here — are Glendale resident Michiko Shiota Gingery, Los Angeles resident Koichi Mera, and GAHT-US Corporation, which says it is in the business of providing "accurate and fact-based educational resources to the public in the U.S., including within California and Glendale, concerning the history of World War II and related events, with an emphasis on Japan’s role." The plaintiffs complain that the presence of the comfort women memorial in Glendale causes them to suffer "feelings of exclusion, discomfort, and anger because of the position espoused by her city of residence through its display and endorsement" of the monument, and that they avoid the park because it shows a "pointed expression of disapproval of Japan and the Japanese people" and diminishes their enjoyment of the park. Though the lawsuit discusses a controversy over what the Empire of Japan did to women in the war, the complaint unsubtly conveys a position: "These women are often referred to as comfort women, a loose translation of the Japanese word for prostitute."

Plaintiffs argue in part that the City of Glendale did not follow its own rules in approving the exact language on the memorial. But their primary argument — the most shocking one — is that the City of Glendale cannot erect such a memorial because it violates the Supremacy Clause of the U.S. Constitution and interferes with the federal government's sole right to conduct U.S. foreign policy.

Glendale’s installation of the Public Monument has a direct impact on U.S. foreign policy that is neither incidental nor indirect. By installing the Public Monument, Glendale has taken a position in the contentious and politically sensitive international debate concerning the proper historical treatment of the former comfort women. More specifically, given the inflammatory language used in the plaque that is prominently featured alongside the statue, Glendale has taken a position at odds with the expressed position of the Japanese government.

Though the plaintiffs make this argument about the comfort women memorial in Glendale, it is nearly limitless in its application. For instance, though this fight is over a memorial, it could just as easily be about a city council resolution recognizing a day to remember some historical event. Similarly, though this fight is about the agenda of reactionary Japanese forces that seek to suppress discussion of wartime conduct, it could just as easily be about a hundred other historical disputes. If you think that's mere speculation, think again. Glendale, California and the surrounding communities are also home to one of the largest Armenian diaspora groups in the United States. Will Mayer Brown next be suing to force the removal of memorials to the Armenian Genocide, or to prohibit city councils from recognizing it, because it is extremely controversial to apologist forces in Turkey? Given the delicacy of U.S. relationships with the new government of Afghanistan, will someone use the federal courts to police the language of civic war memorials and commemorative statements across the nation, to make certain that they portray the Afghans as our allies?

This is not a First Amendment issue, exactly, because government entities don't have First Amendment rights. But it is an issue of federalism, of local self-determination, and of citizenship. Local citizens, through their local elected government, wished to recognize a historical atrocity using local government money on local government land. Their city did not purport to engage in negotiation with any foreign government or to take any position on behalf of the United States — they just took a position on behalf of its citizens. They did not do anything prohibited by the Constitution, like establishing a state religion. The notion that the federal government or the federal courts should regulate this expression is noxious.

Moreover, the argument against it is vague, unprincipled, and endlessly malleable. If a case like this succeeds, what will the courts say to a Holocaust denier who argues that a memorial is too harsh in condemning Germany, a nation with whom we have dicey relations? The plaintiffs here might argue that the difference is that recognition of the Holocaust isn't controversial and wouldn't anger most Germans, while the comfort women issue has angered Japanese politicians. But that's just another way of saying that foreign politicians should be able to dictate what American towns put on their civic memorials. The more that foreign politicians are willing to make demands and issue denunciations, the less free American towns would be to commemorate historical events. This would drive exactly the sort of entitled, thuggish behavior that Japanese politicians have shown here, issuing churlish demands that a foreign city shut up about their nation's history.

This lawsuit is thoroughly contemptible. It should fail, and everyone involved should face severe social consequences.

Edited to add: It occurred to me what this reminded me of: Croat lawfare trying to get Bob Dylan charged with hate speech for talking about Croat atrocities.

182 Comments

Rep. Steve Stockman (R-TX) Files Highly Questionable Defamation Suit

Law

Steve Stockman is a Republican Member of Congress from Texas currently running for Senate on the "should we impeach President Obama" platform. Steve Stockman's angry. Not Texas-shoot-someone-or-wear-stupid-hats angry. Suing angry.

Stockman has recently sued Texans for a Conservative Majority over their campaign ads and communications against them. He says they're guilty of some of the most "outrageous, malicious defamation ever recorded in Harris County." Stockman complains that the defendants defamed him by saying that he was "jailed more than once," that he was "charged with a felony," and that he violated ethics rules.

There are a number of problems with this suit.

First problem: as a public figure, Stockman will have to prove that the defendants made false statements against him with actual malice — meaning knowing that they were false or with reckless disregard to their truth or falsity. But as the Dallas Morning News reports, Stockman previously admitted to newspapers that he had been jailed several times and charged with a felony:

Tonight, Rep. Steve Stockman accused a group that supports Sen. John Cornyn of lying about him, by asserting that he had been “jailed more than once” and was “charged with a felony.”

That is strange, because Stockman has admitted to these facts, several times.

“I may have been in jail a couple of times, two or three times,” he told this newspaper.

As for the felony charge, that stemmed from the time his girlfriend hid three Valium tablets in his underpants when he was reporting for a weekend in jail. “When they found that they charged me with a felony,” he told the Houston Chronicle.

I suppose it's possible that Stockman actually means to complain about some other unspecified statements defendants made that don't match things he's already admitted are true. However, as a general rule, if a defamation plaintiff doesn't list a false statement in their complaint, you can predict that either (1) the statement they are complaining about is a non-actionable statement of opinion and they are trying to hide that fact, or (2) it doesn't exist. Remember what we say around these here parts: vagueness in a legal threat is the hallmark of meritless thuggery.

So: it's not clear how the defendants could have committed defamation by repeating something Stockman previously admitted. How can he prove that it's false, let alone that they knew it was false or were reckless about its falsity? Perhaps Stockman means to suggest that it's reckless to take a Member of Congress at his word, an argument with some appeal. Or perhaps Stockman's argument about the ethics charges has merit.

Next problem: in his complaint, Stockman repeatedly argues that truth is not a defense to saying these things about him:

Even if true, which it is not, truth is not a defense to this statement.

That's pure bullshit, and the attorney who asserted it is either dishonest or an idiot. "Whether the plaintiff is a public figure or not, falsity is always an element of the cause of action, and truth is an absolute defense to defamation. See Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964) (public figure); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 768–69, 106 S.Ct. 1558, 1559, 89 L.Ed.2d 783 (1986) (private figure); Bentley v. Bunton, 94 S.W.3d 561, 580 (Tex.2002) (public figure); Turner v. KTRK Television, Inc., 38 S.W.3d 103, 116 (Tex.2000) (public figure); McIlvain v. Jacobs, 794 S.W.2d 14, 15–16 (Tex.1990) (private figure)." Pardo v. Simons, 148 S.W.3d 181, 186 (Tex. App. 2004). The Supreme Court recently reaffirmed this.

The defendants ought to introduce Steve Stockman and his lawyer to Texas' new and vibrant anti-SLAPP statute, get the case dismissed, and get attorney fees. People considering whether to vote for Stockman ought to bear in mind that (1) someone nominally a member of a party that decries frivolous lawsuits is suing people for saying things about him that he's already said about himself, and (2) someone who takes an oath to uphold the Constitution is stating, falsely and moronically, that the Constitution lets him sue people for saying true things.

He sounds overqualified for the Senate.

47 Comments

Mark Steyn Has A Fool For A Client

Law

Back in 2012 I wrote about Michael Mann's lawsuit against National Review Online, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg. There's been plenty of water under the bridge since then — the defendants have filed and lost a motion under Washington D.C.'s anti-SLAPP statute, appealed unsuccessfully, re-filed it as a result of procedural hijinks too dull to discuss here, and lost again.

My view of the case is unchanged. I think the statements Mann attacks are best viewed as opinions expressed through vivid rhetoric and hyperbole, rather than statements of literal fact susceptible to defamation analysis. That view is strengthened by the steady progress of the law since 2012 in cases like Cox v. Obsidian Finance, which I discussed last month.1 The tone and rhetorical flair of the statements, the places they were published, and their entire tenor strongly suggest they were argumentative opinions rather than falsifiable statements of fact. Therefore, they ought to be absolutely protected by the First Amendment. In this I agree with Jonathan Adler and Dan Farber.

Quite frankly I also think that the lawsuit is part of a larger effort to conduct the climate change debate by other means, including lawfare — part of the effort to label certain viewpoints as so unacceptable that they do not deserve full legal protection. As an example of the tone I am talking about, consider a cartoon in today's New York Times:

KillingPeopleWhoDisagreeIsFunny

Mann's case may still be resolved on the grounds that he's complaining about protected opinions rather than defamatory statements of fact. Moreover, Mann may not be able to prove that the statements were false, or if they were false, that they were uttered with the requisite mental state. I will not dwell on that point; I'm scientifically illiterate.

I will, however, dwell briefly on Mark Steyn's disastrous response.

First, Steyn is representing himself — he characterized it as "firing" the well-qualified firm that was representing him. Such a defense can be ruinously expensive, and I'm sure that cost was one factor, but as you'll see it doesn't appear that it was the only one.

Second, Steyn has used the opportunity of defending himself to engage in what can only be described as pro-se antics. He's attacking the judges and the system both in print and in legally feckless and argumentative court filings. Is it Steyn's First Amendment right to rail against the judges associated with his case? Of course it is. May a pro se litigant file a motion as a vehicle to rant about the case as a whole, and the law, and society, and the universe at large? Sure. But while such behavior is viscerally satisfying, it tends to produce bad results. Judges are human, as are their law clerks.

Steyn suggests that his behavior is a strategy, of sorts:

As readers may have deduced from my absence at National Review Online and my termination of our joint representation, there have been a few differences between me and the rest of the team. The lesson of the last year is that you win a free-speech case not by adopting a don't-rock-the-boat, keep-mum, narrow procedural posture but by fighting it in the open, in the bracing air and cleansing sunlight of truth and justice.

Third, Steyn has now answered Mann's complaint and filed two counterclaims against Mann seeking $10 million. Steyn's answer and counter-claims are here. The counter-claims are, to put it mildly, problematical. Steyn doesn't state clearly what causes of action he is asserting, but his text suggests he is suing Mann for suing him, and for threatening to sue him and others, and for chilling speech by issuing legal threats. There are many problems with this legal theory. Among them: the litigation privilege generally prevents you from suing people for suing you, or for things they say in the lawsuit. The exception is the tort of malicious prosecution, but to sue someone for malicious prosecution you first must show that you won the case. Steyn hasn't won the case, and can't sue for malicious prosecution. (This is exactly why "I'm counter-claiming against you for suing me!!!" is something you generally only see from pro se litigants. It doesn't end well for them.) Moreover, the litigation privilege often covers threats to sue, treating them as part of the litigation as a whole.2

The bottom line is this: Mann's threats and litigation may well be privileged — immune from suit. If that's the case, then Mann may be able to respond to Steyn's counter-claims with an anti-SLAPP motion of his own. He may win, which would not only require Steyn to reach into his pocket for Mann's legal fees, but would hand Mann a huge and dramatic propaganda victory.3 I know California's anti-SLAPPP statute and litigation privilege well, but I am not an expert on District of Columbia law. But my review of the law suggests that Steyn's counter-claims are, at a minimum, a very risky gambit. Perhaps there is some theory behind them with a sound basis in law; perhaps Steyn is getting competent legal advice. But I am skeptical.

Mark Steyn seems very frustrated and impatient with the flaws and delays of the legal system, and how it has failed to dismiss what appears to be a censorious lawsuit attacking opinion. It's not unreasonable to be frustrated and angry. It's not unreasonable to say that our legal system ought not require this priest caste of lawyers to navigate lawsuits attacking our fundamental rights. It's not unreasonable to say that such things are outrageous, and the public ought to know about them. But it is unreasonable to expect to be able to navigate the existing complex legal system without training and experience. It is unreasonable to expect publicly castigating your judges to produce favorable results. It is unreasonable to expect angry pro se behavior to produce something other than angry pro se results. You can argue that things ought to be different. I do. But, in terms of producing a good result in a particular case, such arguments are like quarreling with the barrel of a gun.

I support the defendants, including Steyn, in their defense of Mann's censorious lawsuit. I would donate to a Steyn defense fund. I would, if asked, try to round up pro bono support for Steyn — though he is a much, much bigger fish in this bloggy ocean that I am and ought not need my help. I've supported Steyn's efforts against censors for years. But I can't support what appears to be either a grand mal seizure of self-indulgence or an ill-considered piece of performance art. Steyn's approach to this makes it significantly less likely that this case will produce a result favorable to free speech. That hurts not just him, but his codefendants and everyone who might face a censorious and politically motivated lawsuit. If Steyn's antics help Mann win, censors everywhere will be emboldened. I hope someone with Mark Steyn's ear convinces him to stop treating this as a show trial.

295 Comments

Reporting In From The Liberty Forum

Effluvia

I'm in New Hampshire for the Liberty Forum. This afternoon I'm giving a talk on how legal threats from cops and citizens chill online free speech, and what we can do about it. I am obsessively tweaking my Power Point, as is my bad habit, and thinking about which jokes work for my particular audience. ("Pro se is Latin for unmedicated and litigious" is probably not the right fit for this group.) Tomorrow I'm on a panel about dealing with the police when one encounters them non-socially.

It would be easy to write a post making fun of this convention, in the sense that it would be easy to write a post making fun of any convention. They are all similar: a few eccentrically dressed people stand out from the rest, a few people argue too loudly and badly, a few people are always a little too scarily involved in the subject matter. That was true for the fantasy gaming conventions I attended in the early 1980s and it's true of mainstream political conventions and it's true of this.

A few minutes ago I very much enjoyed hearing Jesselyn Radack, ex-DoJ whistleblower and now attorney for whistleblowers, speak. This is what happened to her last week at Heathrow, and here is an old story about what DoJ tried to do to her. I particularly enjoyed the part about how the Department of Justice, having convinced her law firm to fire her, cooperated with her law firm in an effort to block her from getting unemployment benefits.

More tomorrow.

25 Comments

Cathy Gellis Wins Second Victory Against U.K. Subpoena Seeking To Pierce Blogger Anonymity

Law

Back in October I described how attorney and blogger Cathy Gellis won a significant pro bono victory, quashing Oliver Gobat's subpoena to unmask the blogger behind the St. Lucia Free Press. Gobat, who was suing over blog posts from and about St. Lucia, sued in the United Kingdom, which is to defamation plaintiffs what Walt Disney World is to sticky and demanding children: a fantasy tourism destination. Cathy convinced a California court to quash a subpoena issued here based on the U.K. proceeding; that subpoena to the St. Lucia Free Press's California-based ISP sought the identity of the anonymous blogger. The court quashed the subpoena on the grounds, among others, that the United Kingdom proceedings that generated the subpoena were insufficient and did not comply with domestic free speech or due process requirements. The court even granted Cathy very modest fees and costs — though surely nothing compared to the hours she devoted to the important issues at hand.

But Mr. Gobat and his U.S. attorneys are persistent. They engaged in some rather desultory additional proceedings in the United Kingdom and re-issued the subpoena. Cathy Gellis filed a motion to suppress the subpoena again, and the result is nothing less than an utter rout of Gobat and his attorneys. The California court quashed the subpoena, issued an injunction forbidding Gobat from trying to subpoena the ISP again, and awarded $15,000 in attorney fees to Cathy Gellis, owed jointly by Gobat and his California lawyers.

But why did the court quash the subpoena originating in the U.K.? The court followed California law requiring defamation plaintiffs to make a "prima facie showing" of defamation in order to pierce a defendant's anonymity through discovery. That's not a particularly robust test — unlike the more protective Dendrite test favored in some jurisdictions, it only requires the plaintiff to offer some evidence which, if accepted, would satisfy the elements of defamation. Here, the court found that the statements Gobat complained of appeared to be opinion and hyperbole under American law, not actionable false statements of fact, and that American law controlled in evaluating whether a British subpoena could pierce anonymity in America. In his recommendation to the court, the Judge Pro Tem said this:

Applying the balancing test endorsed by Krinsky v. DOE 6 (2008) 159 Cal.App.4th 1154, 1165, and considering whether a prima facie case of defamation has been stated, the Court finds that the anonymous comments complained of appear to be opinion mixed with sarcasm and hyperbole, rather than objective statements of fact. See discussion in Krinsky v. DOE 6 (2008) 159 Cal.App.4th 1154 at 1175-1178. The Court rules that the 1st Amendment of the U.S. Constitution trumps English law in deciding whether a prima facie case for defamation has been made. Krinsky at 1173, citing Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 347 [states may define their own law of liability for defamation, but must remain within Constitutional limits].

In his recommendation to the court, the Judge Pro Tem highlighted why it would be perilous for American courts to pierce the anonymity of speakers just because a foreign court decided that their speech was defamatory:

My view is that the language in this case is not that far removed from that in the leading case of Krinsky — it is aggressively critical, but so over the top that the typical reader, reading in context, would recognize it as a rant—an opinion, possibly from a disgruntled consumer of the real estate, or simply from a gadly.

Under Krinsky, another issue is whether English law should be applied to determine if there is a prima facie case of defamation. Krinsky involved Florida law, so we may be dealing with a case of first impression in California. The cases cited above say “no” if English law has a looser definition of defamation than the U.S. Constitution. I posed a hypothetical to Gobat counsel: if a foreign country had a law stating that any woman who criticizes a man is liable for defamation, would a U.S. court use that law in deciding if there was a prima facie case of defamation for purposes of ruling on a subpoena just like the one in this case?

It's fairly unusual, by the way, for a court to make an attorney fee order jointly and severally payable by a party and the party's lawyer. Why would the court do that here? It might be because the second subpoena still suffered so clearly from the defects of the first. Or perhaps it was because Gobat's counsel implied, in a footnote, that Cathy Gellis might have to start legal proceedings in the U.K. to collect on the modest fees awarded in the prior motion:

Petitioner's apparent suggestion that Gobat's California counsel should be sanctioned so that Petitioner need not "chase down [Gobat] all over the world to recover fees and costs" (Pet.'s Mot. to Quash 9), is an improper one. There is no legal basis for levying expenses against a party's counsel as a proxy for levying those expenses against the party himself. Petitioner cites no statute or case law allowing such a practice. Additionally, Petitioner fails to show how he or she would need to "chase down" Gobat. In the event that Petitioner needs to collect a judgment from Gobat, he or she could easily do so by instituting an appropriate action in the U.K.

That was a tactical error. The right answer was "there is no need to sanction counsel because the party, which is taking advantage of this court's processes, will comply with its orders and pay what it is ordered to pay." This line was a red flag to the judge.

This is a tremendous victory for Cathy, and an important recognition of the state of the law protecting anonymity in California courts. Join me in congratulating her.

Her motion is here, and Gobat's opposition is here, and her reply is here.

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Science Fiction Community Generates This Weekend's Buffoonish Defamation Threat

Law

Sean P. Fodera is a science fiction writer who works in the publishing industry. He's angry.

He started out angry over ongoing upheaval in the science fiction and fantasy literature community. That upheaval is mirrored in the gaming community and skeptic community and other communities with devoted and vocal fanbases. It's a conflict between two groups: a group that thinks the communities have a problem with racism, sexism, and harassment and should take steps to address it, and a group that thinks that the first group is engaged in free-speech-suppressing political correctness and should be resisted. A full description of the dispute would be too lengthy for this post.4

The Daily Dot published a post about this ongoing dispute, and in the course of doing so quoted and linked to some of the angrier things that Fodera said about Mary Robinette Kowal, a science fiction author and officer of the Science Fiction and Fantasy Writers of America. Kowal has spoken out against harassment in the science fiction and fantasy literature community, and SFWA is currently a locus of controversy about such allegations and the official reactions to them. In forum threads on SFF.net, Fodera complained at rather tedious length about Kowal, called her things like "incompetent," said that she agitated him in a manner he compared to how dogs agitate him, and sneered that she was a hypocrite for complaining about sexism given how she sometimes dresses:

I find it very funny and ironic that she would jump on this bandwagon. For a long time, her website featured an array of photos of her in a diaphanous white outfit, posing on a beach. No metal bikinis or such, but they were not innocuous writer headshots either. One of them, with her recumbent on the sand with legs exposed, made her somewhat attractive. I also recall she's fond of wearing tight-fitting gowns and plunging necklines when she attends cons and award ceremonies.

I'll have to add "phony" to "incompetent" and "arrogant" in the mental tags I've assigned her.

Girls give up the right to complain about sexism unless they dress conservatively. It is known.

Anyway, if Fodera was angry before, this coverage made him really angry. How dare someone quote him and link to the full quotes! He penned this threat:

I will note that since I now have the name of the writer, and I can prove that the quotes were edited to change their meaning, I have a very good case for a libel suit. I suppose no one noted that I work in the legal profession within the publishing industry, and have taught college courses on the subject.

BTW, as of now, it looks like the article was "shared" 1,200 times already. That makes each of those sharers a part to the libel, and makes each of them equally culpable in the eyes of the law. I'll speak to my attorney first thing tomorrow.

The Streisand Effect predictably ensued. Multiple people — author John Scalzi, for instance — wrote about Fodera's bumptious legal threat, and the Daily Dot article probably got several orders of magnitude more traffic than it otherwise would have.

Though Fodera works "in the legal profession" and has "taught college courses," he does not appear to have a firm grasp of the subject matter.

First, Fodera thinks that the Daily Dot article is defamatory. It isn't. The article quotes things he wrote on the internet. It links to his original text so that the readers can judge for themselves. Fodera seems to think that the Dot article wrongly paraphrases or selectively quotes him. That's a tendentious and unpersuasive reading. Take, for instance, how the Dot quoted and paraphrased him in his dog analogy:

He calls Kowal, who is a Hugo-award-winning author, "an unperson… no one you should have heard of." Then he goes on to compare her to an aggressive dog:

“Oh, I know she has no power over me. Still, I get agitated when I think about her. There was a lot of good I could have done for SFWA, and she was a primary factor in my not being able to do it… In a way, it's like my reaction to dogs… My brain kept saying 'it's a service dog; they're well-trained; he won't hurt you,' but my body wanted nothing more than to dump my bowels and flee…”

But the Dot directly links to Fodera's own words. The Dot description and partial quote is fair and accurate. And the readers can determine that for themselves by following the link.

Is it possible for misquoting someone to constitute defamation? Yes. But the bar is set very high. In Masson v. New Yorker Magazine, the United States Supreme Court examined whether fabricating quotes and attributing them to an interviewee could be defamatory. The court applied the familiar "gist" or "sting" doctrine, saying that misquotes are only "false" for defamation purposes if they materially change the meaning of the quote:

We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan, 376 U. S., at 279-280, and Gertz v. Robert Welch, Inc., supra, at 342, unless the alteration results in a material change in the meaning conveyed by the statement. The use of quotations to attribute words not in fact spoken bears in a most important way on that inquiry, but it is not dispositive in every case.

Here, the Dot has not materially changed the meaning of Fodera's words. Frankly I don't think they've changed the meaning at all. Moreover, they've linked the words so the reader can review them directly. The Supreme Court's discussion of misquotes was premised in part on the notion that the misquote misleads the reader and gives them no notice that the quote might not be exactly what the speaker said; the Dot's article serves up a way for the reader to read the underlying words if the paraphrase or partial quote interests them. Courts increasingly recognize that linking to one's sources for a challenged statement makes it less likely that it will be treated as defamatory.

Fodera's claim of defamation therefore appears specious.

Second, Fodera appears confident that if the Dot article is defamatory (and it isn't), then anyone who merely links to it is a participant in defamation. That confidence is misplaced; it's not clear whether Fodera is ignorant of the law or merely argumentative about it. While not firmly established in every jurisdiction, the emerging trend is for courts to rule that merely linking to defamatory content does not republish it for defamation purposes. Eric Goldman has good coverage of this issue.

New York, regrettably, has only a mediocre anti-SLAPP statute that wouldn't be of assistance if Fodera is foolish enough to follow up his threats with a lawsuit. But as the sad case of Rakofsky v. The Internet demonstrates, New York judges are still prepared to dismiss frivolous and censorious lawsuits. Moreover, any lawsuit would be an extinction-level event for Fodera's reputation and credibility in the publishing industry, as it ought to be. I would not hesitate to light the Popehat Signal to find pro bono assistance for anyone Fodera menaces.

It's banal to be a trash-talking blowhard on the internet. Fodera could have gotten away with that — there are so many blusterers, and so little time to care about them. But Fodera has transformed himself into something else, something more iconic: the big talker who can dish it out but can't take it. Nobody respects that person. Nobody should. Fodera strikes me as a sad and stunted person, lashing out at someone for holding a mirror up to him.

I sent Mr. Fodera an email seeking comment, and asking for responses to some specific questions, but have not heard back as of the time of this writing.

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News-Reworder SlashGear Turns Expert Into Criminal Defendant

Effluvia

Dr. Nicholas Weaver is an expert on network security issues. The media frequently seeks him out for input on stories involving the intersection of criminal justice and computer security, like Silk Road and leak investigations. Fair disclosure: he's also an online friend and an expert on one of my cases.

SlashGear is an also-ran tech site that rewrites stories badly.

Case in point: SlashGear took this story from Krebs On Security about criminal charges against Bitcoin traders in Florida. Dr. Weaver was quoted as an expert in that story:

Nicholas Weaver, a researcher at the International Computer Science Institute (ICSI) and at the University of California, Berkeley and keen follower of Bitcoin-related news, said he is unaware of another case in which state law has been used against a Bitcoin vendor. According to Weaver, the Florida case is significant because localbitcoins.com is among the last remaining places that Americans can use to purchase Bitcoins anonymously.

“The biggest problem that Bitcoin faces is actually self-imposed, because it’s always hard to buy Bitcoins,” Weaver said. “The reason is that Bitcoin transactions are irreversible, and therefore any purchase of Bitcoins must be made with something irreversible — namely cash. And that means you either have to wait several days for the wire transfer or bank transfer to go through, or if you want to buy them quickly you pay with cash through a site like localbitcoins.com.”

But when Bittany Hillen penned an awkwardly-worded and uninformative summary of the story for SlashGear, she turned Dr. Weaver from a quoted expert to a criminal defendant:

Yesterday, Florida law enforcement announced the arrests and criminal charges against three individuals under anti-money laundering laws: Michell Abner Espinoza, Pascal Reid, and Nicholas Weaver.

Dr. Weaver captured a screenshot in case SlashGear tries to memory-hole this. He should feel happy he didn't give a quote about the Woody Allen case, I guess.

Dr. Weaver isn't the suing type. But, hypothetically, could he sue for defamation? Sure.

In California the elements of defamation — that is, the things that a defamation plaintiff must prove — are these:

publication of a statement of fact
that is false,
unprivileged,
has a natural tendency to injure or which causes "special damage," and
the defendant's fault in publishing the statement amounted to at least negligence.

Here, SlashGear and Hillen published a false statement of fact about Dr. Weaver — that he had been charged with a crime. The publication was unprivileged, meaning that it was not immunized from liability by statute (for instance, things you say as a witness in court, or in pleadings filed in court, are generally privileged from liability). Accusing some of being charged with a crime is the sort of thing that has a natural tendency to injure, which is why it is often categorizes as "libel per se" — which merely means that the plaintiff doesn't have to prove that he or she suffered damage to reputation, and gets at least nominal damages without such proof.5 Dr. Weaver probably couldn't prove actual or special damages to his reputation — it's doubtful that anyone gives a shit what a clumsy SlashGear rewrite says. But he could get at least nominal damages because of the nature of the accusation.

That leaves us with the question of fault. As I explained in the context of the Crystal Cox case, at least if the issue being discussed is a public one, a defamation claim always requires proof of some level of fault on the part of the defendant. The level of fault depends on whether the plaintiff is a mere private figure (in which case the plaintiff may only need to prove that the defendant got the story wrong out of negligence) or a public figure (in which case the plaintiff would need to prove actual malice, meaning knowledge that the story was false or reckless disregard to its truth or falsity.) There are complexities and gradations; people can be public figures for limited purposes.

Here, the transformation of Dr. Weaver from respected expert to criminal defendant is a result of an incompetent rewrite of a news story. That's at least negligence. If Dr. Weaver is treated as a private figure he would prevail. But since he's frequently quoted in the news on stories like this, he may well be treated as a limited purpose public figure in the context of coverage of network security issues in the news. So the question is probably whether an incompetent rewrite of a story rises to the level of reckless disregard of the truth as required by the actual malice standard. The answer is almost certainly not. "Reckless disregard" requires more than incompetence; it requires conscious disregard of doubt. Here there's no indication that anyone consciously regarded or disregarded anything.

So: Dr. Weaver probably can't prove the requisite fault against SlashGear and Hillen, even if he wanted to. They live to promote shitty rewrites another day. Fortunately for Dr. Weaver it's difficult to imagine anyone taking SlashGear seriously enough for their incompetence to hurt his reputation.

Remember: just because something is written in a "story" by a "journalist" on a well-trafficked website, that doesn't mean it's anything other than incompetent drivel.

Edited to add SlashGear corrected the story to remove the reference to Dr. Weaver as a defendant, but as of this writing has not offered any retraction or apology. Classy.

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