Category: Law

76

Think That Employee Harassment Complaint Is Too Stupid To Take Seriously? Just Write Your Check To Me Now.

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Last week some writers at Jezebel made a public complaint about its parent, Gawker Media:

For months, an individual or individuals has been using anonymous, untraceable burner accounts to post gifs of violent pornography in the discussion section of stories on Jezebel. The images arrive in a barrage, and the only way to get rid of them from the website is if a staffer individually dismisses the comments and manually bans the commenter. But because IP addresses aren't recorded on burner accounts, literally nothing is stopping this individual or individuals from immediately signing up for another, and posting another wave of violent images (and then bragging about it on 4chan in conversations staffers here have followed, which we're not linking to here because fuck that garbage). This weekend, the user or users have escalated to gory images of bloody injuries emblazoned with the Jezebel logo. It's like playing whack-a-mole with a sociopathic Hydra.

The writers further complained that they had repeatedly informed Gawker Media of the problem, but higher-ups failed or refused to do anything about it. A couple of days later, the writers announced that Gawker Media had responded and was taking steps to deal with trolls barraging them with rape porn.

This complaint was ridiculed in some circles. No, I won't link them. The ridicule seemed to be based on the propositions that (1) it's silly to think that Gawker should be responsible for what some third-party troll is doing to its employees, and (2) it's silly to be upset by that sort of thing.

This is a good example of the phenomenon I like to call "bless your heart for thinking that, but it's not the law, dipshit."

American employers are, in fact, responsible for taking reasonable steps to protect their employees from racial or sexual harassment by third parties. This is the example I use when I train companies on sexual harassment prevention: if the UPS guy is constantly and creepily hitting on your receptionist, you need to do something about it. You may think that it is outrageous that this is the rule. Cool story, bro. That's what the law is, and if you employ people or advise anyone who employs people, you're a fool to ignore it. Here's how the United States Court of Appeals for the Fourth Circuit — hardly a bastion of liberalism — recently summarized it:

Similar to the reasoning we set forth for employer liability for co-worker harassment, “an employer cannot avoid Title VII liability for [third-party] harassment by adopting a ‘see no evil, hear no evil’ strategy.' “ Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 334 (4th Cir.2003) (en banc). Therefore, an employer is liable under Title VII for third parties creating a hostile work environment if the employer knew or should have known of the harassment and failed “to take prompt remedial action reasonably calculated to end the harassment.” Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir.1995) (quoting Katz v. Dole, 709 F.2d 251, 256 (4th Cir.1983)) (internal quotation marks omitted) (applying this standard to co-worker harassment).

In that case, the Circuit overturned a trial court judgment for the employer, finding that there was sufficient evidence to go to trial on the employee's complaints that an asshole customer had created a hostile environment and the employer didn't do anything about it:

Applying this standard here, we conclude that a reasonable jury could find that Dal–Tile knew or should have known of the harassment. Here, Freeman presented evidence that Wrenn, her supervisor, knew of all three of the most major incidents: the two “black b* * * * ” comments, and the “f* * *ed up as a n* * * *r's checkbook” comment. Wrenn was present for the first “black b* * * * ” comment, which Freeman complained about to Wrenn afterward. Freeman also complained to Wrenn specifically about the other two comments from Koester almost immediately after they occurred.5 When Freeman complained to Wrenn about the “f* * *ed up as a n* * * *r's checkbook” comment, Wrenn “scoffed and shook her head and put her head back down and continued on with trying to pick the nail polish off of her nails.” J.A. 102. When Freeman complained about the second “black b* * * * ” comment, Wrenn simply rolled her eyes and went on talking to a co-worker. J.A. 112. In addition to these most severe incidents, Wrenn was also present the time Koester passed gas on Freeman's phone and Freeman began crying and had to leave the room.

That supervisor, Wrenn, reacted rather like the critics of the Jezebel writers: "why, exactly, is this an issue we should care about?" That attitude was rather expensive for the defendant company in this case.

Or maybe you think that trolls constantly posting rape porn isn't severe or pervasive enough to create a hostile working environment. No, thanks, I don't think I'll borrow your laptop. Everyone is entitled to their own opinion, but everyone isn't entitled to the law being what they think it is. Minimal exposure to pornography isn't severe or pervasive. If someone puts up a centerfold and you complain and it's gone the next day, courts wont' find that to be sufficient to create liability. But being constantly exposed to pornography calculated to upset you — meant to troll you? That's probably over the line. "Although most cases involving pornography in the workplace include other elements such as threatening or offensive remarks, see, e.g., Waltman, 875 F.2d at 471, there is no necessary reason why the presence of pornography alone could not create a hostile work environment so long as the pornography was sufficiently severe or pervasive." Adams v. City of Gretna, 2009 WL 1668374 (E.D. La. June 12, 2009).

Let's put it this way: Gawker Media made the wrong choice when they ignored complaints, and the right choice when they started taking steps reasonably calculated to address the complaints. I'm not certain that the writers would win a lawsuit if Gawker had continued to put its head in the sand, but if I had to choose the stronger case, I'd choose the writers.

Preventing harassment is, for whatever reason, a subject that upsets people. Go ahead, be upset. Say it's ridiculous! But part of my job is training companies to minimize liability risks, and I'm here to tell you: if you don't take it very seriously as an employer, you might as well start writing checks to litigators right now.

67

Don't Give Special Rights To Anybody! Oh, Except Cops. That's Cool.

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I was all set to write a post making this point: it's offensive and irrational for the police to say "we have to protect the identity of a cop who shoots a citizen, for safety" when the criminal justice system routinely names suspects and defendants — either openly or by leak. People are accused of horrible crimes all the time, and does the system hold back their names out of fear that they or their families will face retribution? No.

But Kevin Williamson has already done a great job writing that post:

Here’s a microcosm of the relationship between state and citizen: We know the names of the nine people charged with felonies in the Ferguson looting, but not the name of the police officer at the center of the case.

Here's what I want to add to Kevin's observations: this particular piece of special pleading for cops is not unique; it's part of a pattern.

If you are arrested for shooting someone, the police will use everything in their power — lies, false friendship, fear, coercion — to get you to make a statement immediately. That's because they know that the statement is likely to be useful to the prosecution: either it will incriminate you, or it will lock you into one version of events before you've had an opportunity to speak with an adviser or see the evidence against you. You won't have time to make up a story or conform it to the evidence or get your head straight.

But what if a police officer shoots someone? Oh, that's different. Then police unions and officials push for delays and opportunities to review evidence before any interview of the officer. Last December, after a video showed that a cop lied about his shooting of a suspect, the Dallas Police issued a new policy requiring a 72-hour delay after a shooting before an officer can be interviewed, and an opportunity for the officer to review the videos or witness statements about the incident. Has Dallas changed its policy to offer such courtesies to citizens arrested for crimes? Don't be ridiculous. If you or I shoot someone, the police will not delay our interrogation until it is personally convenient. But if the police shoot someone:

New Mexico State Police, which is investigating the shooting, said such interviews hinge on the schedules of investigators and the police officers they are questioning. Sgt. Damyan Brown, a state police spokesman, said the agency has no set timeline for conducting interviews after officer-involved shootings. The Investigations Bureau schedules the interviews at an “agreeable” time for all parties involved, he said.

Cops and other public servants get special treatment because the whole system connives to let them. Take prosecutorial misconduct. If you are accused of breaking the law, your name will be released. If, on appeal, the court finds that you were wrongfully convicted, your name will still be brandished. But if the prosecutor pursuing you breaks the law and violates your rights, will he or she be named? No, usually not. Even if a United States Supreme Court justice is excoriating you for using race-baiting in your closing, she usually won't name you. Even if the Ninth Circuit — the most liberal federal court in the country — overturns your conviction because the prosecutor withheld exculpatory evidence, they usually won't name the prosecutor.

And leaks? Please. Cops and prosecutors leak information to screw defendants all the time. It helps keep access-hungry journalists reliably complaint. But leak something about an internal investigation about a shooting or allegation of police misconduct? Oh, you'd better believe the police union will sue your ass.

Cops, and prosecutors, and other public employees in the criminal justice system have power. It is the nature of power to make people believe that they are better than the rest of us, and entitled to privileges the rest of us do not enjoy.

The question is this: are we so addled by generations of "law and order" and "war on crime" and "thin blue line" rhetoric that we'll accept it?

50

Bloggers Defeat Brett Kimberlin's Vexatious Defamation Case In Maryland

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Last year I talked about how the notorious and thoroughly evil Brett Kimberlin had sued several bloggers in Maryland state court for being mean to him. This is not to be confused with the ludicrous racketeering case that Kimberlin filed in Maryland federal court against a laundry list of detractors.

Today Kimberlin lost his state case at trial. He didn't just lose — he lost conclusively. After the close of Kimberlin's day of "evidence," the judge granted a motion for a directed verdict against him. Under Maryland law, that means the judge necessary found "a total failure of legally sufficient evidence to prove" Kimberlin's remaining defamation claim. The judge didn't just find Kimberlin's evidence unpersuasive; he effectively found it irrelevant.1 I await with interest a more specific description of the basis for the judge's ruling, but I previously talked about how Kimberlin's case was meritless because he was trying to misconstrue protected statements of opinion as defamatory statements of fact.2

Congratulations are due to the defendants — William Hoge, Aaron Walker, Robert Stacy McCain, and Ali Akbar. (I will update those links as each posts their version of the victory.) Special congratulations — and thanks and admiration — are due to attorney Patric Ostronic, who represented some of the defendants pro bono through what must have been a very time-consuming and annoying case. In a system that fails to stop the Kimberlins of the world from lawfare, the Patric Ostronics of the world are essential to protecting my rights and yours.

Kimberlin, as always, was the author, editor, and publisher of his own book of failure. Dave Weigel describes Kimberlin's opening like this:

This was after Kimberlin's opening statement, interrupted dozens of times by objections, as he tied the case to Benghazi, the suicide of Robin Williams, and the motivations that spurred the 9/11 terrorists.

Furthermore, even though the court ruled that Kimberlin could testify on his own behalf (despite a statute suggesting that people convicted of perjury may not), Kimberlin did not testify. Perhaps he was concerned about how testifying would expose him to a cross-examination that would lovingly recount his history of lawlessness, sociopathy, and crazed litigiousness. Perhaps he recognized the risk of a new perjury charge. Perhaps he realized that he would look ridiculous questioning himself. Perhaps he never planned to, and the purpose of this was always mere harassment. Whatever the reason, his failure to testify led to the directed verdict, and will make it very difficult for him to prevail on appeal.

It sounds as if the trial was chock-full of oddness. Take this decision by defendant Ali Akbar on the second day of trial:

The surprise in today's trial: I've chosen to dismiss my very competent counsel and self represent. I needed this. #BrettKimberlin

There's no kind way to say this: that was a stupendously self-indulgent and idiotic thing do to, that risked both Akbar's case and that of his codefendants. The good result doesn't magically make it more sensible, any more than it was a good idea to play Russian Roulette because it went fine and you won $10. Trial lawyering ain't rocket science. But it's an acquired skill requiring specialized knowledge of a lot of picky rules. It's a minefield. You can open the door to otherwise inadmissible evidence from the other side, you can make a hash of your own evidence so it isn't admitted or its effect is blunted, you can spoil your impeachment evidence and fail to discredit the opposing witnesses, you can alienate the judge and jury, you can fail to preserve essential rights both for trial and appeal, and you can drag your codefendants' case down with you. I hope that nobody will take Akbar's example to conclude that going pro se in a free speech case is a swell idea. Ask Roger Shuler how that turns out.

This result bodes well for Kimberlin's remaining ludicrous and vexatious claims in federal court against a wide variety of people and institutions. The federal court will see the result and, no doubt, view Kimberlin with even more skepticism. The state ruling may have legal effect in the federal case — let's let Brett Kimberlin discover why and how. And, most importantly, the trial shows that for all his braggadocio about having filed a hundred suits, Brett Kimberlin is too nutty and disorganized to do even a half-assed job in court. If only one could litigate by drug dealing, perjuring, and blowing the leg off innocent bystanders, he would have been an elite courtroom attorney.

Kimberlin is not done yet. this is what he said to Dave Weigel:

Kimberlin tells me he’ll appeal, and that as far as the bloggers go there’ll be “endless lawsuits for the rest of their lives."

No doubt he will continue to pursue vexatious litigation. And, so long as he mouths the right political platitudes, he'll always have a coterie of vapid and dishonest hagiographers, lapdogs, and deranged cyberstalkers. Kimberlin's rhetoric happens to be aimed at credulous "progressives"; Orly Taitz demonstrates he could have attracted a different crowd of supporters by mouthing conservative homilies.

But if Kimberlin won't give up, neither will the people he tries to censor. Lawyers like Patric Ostronic will step up. This victory will make it easier to recruit pro bono counsel to defy Kimberlin.3 His defeats will continue to mount and it will be easier and easier to convince judges to dismiss his cases. Sooner or later, a team will put together a motion to have him declared a vexatious litigant — thus blunting his ability to harass through litigation. Once he's declared a vexatious litigant in one jurisdiction, others will follow more easily. Most of all, more and more people will do what he hates most: talk about who he is and what he's done.

Kimberlin's not going to silence any of these defendants.

78

Randy Queen Offers Comical Response To Online Criticism of His Work "Darkchylde"

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Randy Queen is a comic book artist and the creator of Darkchylde, an improbably-breasted teen who can transform into creatures from her nightmares. He also writes related poetry.

RAIN, RAIN

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.

(more…)

30

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

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

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

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

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

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

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

64

Colorado ISP Peak Internet Sues Customer For Bad Online Reviews [Updated With Popehat Signal, Resolution]]

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[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.

Second Update:

Mr. Petrick has sought my help. I am lighting the Popehat Signal.

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

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.

50

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

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

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

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

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

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

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

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

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

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

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

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

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

48

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

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

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

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

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

IFORGOTHOWTOCRISIS

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

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

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

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

28

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

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

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

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24

Monday Schadenfreupdates (Now Updated!)

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

For instance:

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

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

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

The wheel turns slowly, but it turns.

Update: Now With More Schadenfreude!

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

48

Poseur Pastor Pouts, Pursues Preposterous Proceeding, Procures Painful Penalty

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Ergun Caner was angry.

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

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

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

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

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

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

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

United States District Judge Norman K. Moon was unimpressed. He granted the motion and dismissed Caner's case in an extremely thorough (and no doubt very embarrassing to Caner) written opinion.5 First the court noted that Caner had conceded that he never filed a copyright application for one of the videos; that's a prerequisite to maintaining a copyright suit. Second, the judge agreed that the posting of the video was classic fair use, because it was a critical non-commercial use designed to impact discussion of Caner's dishonesty. The court made short work of Caner's thoroughly ridiculous arguments: that the defendants were not protected by fair use because it was the work of a "vindictive" "cyber terrorist", that the defendants were "not qualified" to offer criticism of Caner, and that fair use only protects "appropriate criticism from people that are qualified to render those opinions i[n] the market place and exchange of ideas in academia and elsewhere.” This is too much whaarbaargl.

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

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

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

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

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

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

Please join me in congratulating the victorious pro bono team.