Author: Ken White
Rain, Rain, falling down
Grey sky shadows, and my sad heart
. . . and so on.
Now, I am not personally offended by improbably-breasted women in comics. I recognize them for what they are: a cultural signal, like golf pants or McDonalds' Golden Arches. Their presence on a book or comic cover signifies that you will encounter nothing unfamiliar or unsettling therein. Anatomically incorrect breasts are the dogs-playing-poker of fantasy art.
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 worth1 — 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.
6:46 AM (5 hours ago)
Dear Business owner,
This letter regards to the website www.popehat.com
My name is Joel Marami. I am the director of digital marketing at NGRWebTeam. We have some very good news. We have discovered why your website has not been effective as it could be.
OUR ANALYSIS IS AS FOLLOW;
No.1 – The organic traffic to your website has been extremely low. We have measured it at less than 40 percent. It really should be at 80-90%. Since it is not, you are missing out on at least twice as much exposure that you could and should be getting.
No.2 – People who are searching for your type of Business on search engine like GOOGLE, YAHOO and BING are not being driven to your website due to an insufficient number of in-bound links instead; they are being driven to one of your competitor’s websites. This is business that your company is losing to the competition. This is totally unnecessary. Certainly, anything worth doing is worth doing well. With some adjusting this can mean an increase in business of many thousands of dollars per year.
No.3 – The social presence of your website is minimal to be most effective; your website should be actively found on over 10+ high social media websites. This increased social presence will expose your business and your website to people who live, work and frequent your local market and geographical area…If people are not aware of your existence, they will do business with one of your competitors instead. As the saying goes.. OUT OF SIGHT …OUT OF MIND..
Overall, based on our research, we can certainly improve the results you have been getting by increasing your Company’s online presence and resolving any critical online reputation management issues that you are having. We would also like to discuss your website’s conversion rate optimization with you. We can convert more of your visitors into becoming actual customer.
Invite for consultation…CALL NOW! Or Email Back. We can proceed from our corporate e-mail ID…this is just a once-off measure to avoid spam.
Ken At Popehat
8:56 AM (3 hours ago)
Thank you for writing! I was staring out at the vast expanse that is today, feeling the slight tremor in my hand, hearing the faint red song, and wondering, wondering, if today will be the day that . . .
. . . and then your letter came.
"We have some very good news. We have discovered why your website has not been effective as it could be."
Wow. That is good news. I've been thinking about that a lot, Joel, and it's been a complete mystery. The market for foul-mouthed easily-distracted clinical-depression-prone footnoted free speech over-analysis is HUGE. HUGE, Joel. I have built the better mousetrap, where "mouse" is "your free time and peace of mind." The world should be beating a path to my door. Other that incident with the Thai food delivery guy nothing of that nature has happened.
"OUR ANALYSIS IS AS FOLLOW;"
We're fallow? That's kind of harsh, Joel, but fair. We have plowed deep lands in the blogsoil but recently have not left our seed. That seed would grow into strong things — mighty things, Joel — things like police abuse rants and Downfall videos and apocalyptic fantasies and innovative communications paradigms like "snort my taint." But we have not left it, and so nothing grows.
Can you help us?
"The organic traffic to your website has been extremely low. We have measured it at less than 40 percent. It really should be at 80-90%. Since it is not, you are missing out on at least twice as much exposure that you could and should be getting."
This is outrageous. All Popehat content is organic, localvore, fair trade, and non-exploitatively cultivated, except the Clark stuff, but that's cultural. Why are we not getting organic traffic? Are the big blogs stealing it with their fake "natural" content? That chaps my ass. Should we market more heavily in Portland? I'm not going to have to wear skinny jeans again, am I? Because last time a rivet popped and the shopgirl lost an eye. She has to wear a patch. They will only let her work in pirate-themed stores and she's terribly allergic to parrots and morally I just don't think I can go down that road again.
"People who are searching for your type of Business on search engine like GOOGLE, YAHOO and BING are not being driven to your website due to an insufficient number of in-bound links instead; they are being driven to one of your competitor’s websites"
Unacceptable. Totally unacceptable. IF ANYONE IS GETTING DRIVEN AWAY FROM POPEHAT IT IS GOING TO BE BY DESIGN. Ideally as early in the process as possible. Is there a way to force a popup before people surf to Popehat? It could use algorithms. As many as 3 if they are reasonably priced. The popup could say things like "our analysis of your web browsing history suggests that you're a huge whiny fuckstick. Are you sure you want to expose yourself to the sort of blog written by someone whose parting words to his seven-year-old today were 'don't make me teach you Daddy's leisurely crawlspace game'?" That way we get only pre-selected QUALITY hits, like a record of the month club.
"The social presence of your website is minimal to be most effective; your website should be actively found on over 10+ high social media websites."
Got it. Question of clarification: does it have to be our website OPENLY hanging out on other websites, or can it be subtle? Because I troll 10 major websites every day, easy. Yesterday I left an Eid al-Fitr prayer on Townhall that made three guys so scared they got their camouflage sweatpants out of the hamper. Then I left a meditation on truck nutz colors on Salon that triggered an editor, twelve interns, and half the readers and apparently made Alex Pareene lose focus and get his foot caught in an escalator. But those don't say "Popehat." Do those still work building our social presence?
"resolving any critical online reputation management issues that you are having."
That would be great. I have a list of words. I want our site to be unassociated with those words and those words to have nothing to do with our reputation. The words include "taint" and "pony" and "twatwaffle," all of which we regret for various legal and philosophical reasons. What can you do for us? Can you manage us to be more cool-popular? Is it anything like managing a boy band? Can I be the cute one? I always have to be the sullen one. I've been the sullen one for forty-five years and it fucking SUCKS. I am THROUGH with it.
So see what you can do for me, Joel.
Very truly yours,
[Update: see resolution at end of post]
Peak Internet of Colorado offers ISP services to the Pikes Peak region. Russell Petrick tried their services and was disappointed. He says that their speed was consistently below the benchmark they advertised. When Petrick complained, he says that Peak Internet told him he was getting above their stated minimum speed, so he should be happy with the 12 Mbps he was getting, even if it didn't reach the advertised 20 Mbps top speed.
Petrick complained online on Yelp and elsewhere. Peak Internet, an American company that values American ideals like freedom of speech, recognized Petrick's right to complain and responded forthrightly to the complaint. No, wait, Peak Internet strongly disagreed with Petrick's complaints so it responded online with specific facts and circumstances showing how particular elements of Petrick's complaints were untrue.
Wait, no. I forgot. This is America. So Peak Internet sued. They hired attorney Ryan J. Klein of Sherman & Howard and filed a complaint against Petrick in Teller County District Court for defamation and defamation per se. The complaint is here.
Peak Internet's complaint is bare-bones and notably vague and ambiguous. This is how it explains the basis for accusing Petrick of defamation:
The defamatory statements made by Petrick about Peak Internet include, but are not limited to, false statements about the speed of services provided by Peak Internet and responses to complaints about alleged issues with the speed of services provided by Peak Internet.
Notably, Peak Internet does not specify exactly what part of what Petrick said that was false, or exactly how it was false. Remember what I always say: vagueness in defamation claims is a hallmark of meritless thuggery. Here, Peak Internet has used vagueness as a strategy to (1) obscure whether it is suing based in part of protected statements of opinion, (2) hide exactly which statements it contends to be false, avoiding early proof that the challenged statements are true, and (3) increase the costs and pressures of litigation on Petrick to shut him up and deter others from criticizing Peak Internet. You can't tell from the complaint, for instance, whether Peak Internet's argument is "our speeds were never that slow that often, he's lying" (which might be a valid defamation claim) or "his arguments are unfair because these speeds are above the guaranteed minimum speed and we don't promise the top speed all the time" (which would be an invalid attack on a protected opinion).
Peak Internet's ploy may not play out the way they hoped. Already a local news station ran with the story, allowing Petrick to highlight what appears to be well-documented evidence supporting his complaints about the speed.
I wonder: did attorney Ryan J. Klein explain the Streisand Effect to his client Peak Internet before filing the lawsuit?
It's not clear to me whether Petrick has counsel. If he wishes, I would be pleased to light the Popehat Signal to find pro bono counsel. Meanwhile, I think the story of an ISP that sues its customers over criticism is one that needs a little more attention. Do you agree? Have at it.
Thanks to tipster Carl.
Updated to add: commenters here and on Twitter point out that Peak Internet has gotten four abrupt good reviews on July 30 (the day after the local news story), all from first-time reviewers, all praising Peak Internet. No doubt a coincidence.
Mr. Petrick has sought my help. I am lighting the Popehat Signal.
Mr. Petrick is disabled and does not have funds to hire an attorney to defend his free speech rights. Is there a lawyer out there who can help him in Teller County, Colorado?
We have the right to free speech — in theory. In practice, companies like Peak Internet, and lawyers like Mr. Klein, can trammel that right because the system lets them. It can be ruinously expensive to defend even the most transparently bogus and censorious case. To fight this trend of companies suing to remove bad reviews, we need people to step up. Might it be you? If not, will you help spread the word?
Good Update: I am reliably informed that Peak Internet and Mr. Petrick have resolved the case satisfactorily and Peak will be dismissing its case with prejudice — meaning permanently. Congrats to Mr. Petrick, a nod to Peak Internet for making the right decision after the wrong one, and thanks to several Colorado lawyers who offered to help.
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.
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.
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.
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?
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!
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?
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.
We live in an age of diminished privacy and increased law enforcement power. That's why many people were enthused last month when the Supreme Court held that police generally need a warrant to search the data on your cell phone.
But just how happy should we be, really?
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.
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 defamation — ThatLeftAMark 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.
It's time for the Popehat Signal — the call for pro bono assistance for a blogger threatened with frivolous and censorious litigation. This time the victim in need of help is Stephanie Yoder of www.twenty-somethingtravel.com. She needs your help to face a thoroughly bogus and repugnant threat by multi-level marketing scheme "WorldVentures."
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.2 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
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.
Thomas G. Smith made a fundamental error: he assumed that as an American he had a right to use blunt language to criticize the police.
Legally, he was right. Practically, he was wrong.
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.