Tagged: Free Speech

47

American Spectator Surrenders To Vexatious Litigant and Domestic Terrorist Brett Kimberlin

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Last year I wrote about how vexatious litigant and unrepentant domestic terrorist Brett Kimberlin filed a blatantly frivolous RICO suit in federal court in Maryland seeking to silence and retaliate against those who had criticized him.

Now the American Spectator, a conservative magazine, has ignominiously surrendered to him.

Many were suspicious the Spectator had reached some agreement with Kimberlin when he abruptly dismissed the American Spectator from the RICO case. He did so without serving the Spectator and with prejudice — meaning that he cannot re-file the claim. Those suspicions were confirmed when articles about Kimberlin disappeared from the site. As Lee Stranahan first reported, past articles about Kimberlin on the site have mysteriously disappeared. Most don't seem to be cached anywhere, with the exception of this one by Robert Stacy McCain, the Spectator's co-defendant in the RICO case.1 Most are just gone.

Settling a lawsuit is generally a business decision. When clients tell me they don't want to settle because of the principle involved, I explain that the justice system is terrible at sorting out principles. It is very good at putting people in jail, and mediocre and inefficient at moving money from one person to others (mostly to lawyers), but it's a terrible vehicle for vindicating right or wrong. Generally settling a lawsuit — even a vexatious one — is a rational economic decision by a defendant, taking into account a broken system and the ruinous cost and distracting nature of litigation.

But the American Spectator is not most defendants, and Kimberlin's RICO case is not a typical vexatious lawsuit.

The American Spectator purports to be a magazine — it purports to be about journalism and vigorous expression of opinion. It's true that it's highly partisan, but not unusually so. It's sort of a Salon for people who think Hilary Clinton killed Vince Foster. De gustibus non est disputandum. But it relies upon free speech. The First Amendment is essential to its operation. Indeed, even this week it was urging defiance to what it saw as Democratic Party threats to free speech:

Will we keep the First Amendment safe from Harry Reid? asks @jpcassidy000. http://ow.ly/BEsKy

Moreover, the Spectator has traditionally urged defiance in the face of politically motivated defamation claims. Such exhortations to resist "liberal" "tyranny" are common to the Spectator. And any publication — from the New York Times to somebody's LiveJournal page — relies for any credibility upon the proposition that it will say things even if some people do not like them.

But the American Spectator caved, and removed content.

Was it about the expense of litigation? True, it's expensive. But as far as I can tell the American Spectator never sought pro bono help from any free speech networks. Even though I experienced considerable difficultly when I sought pro bono help for the individual codefendants, it is very likely that an entity like the Spectator would have been able to find free or reduced-cost help, perhaps from ideological allies. And bear in mind that some of the individual co-defendants, even though they are not lawyers, have been vigorously and successfully litigating against Kimberlin pro se.2

Did the American Spectator have doubts about the merits of the case? Did it think Kimberlin might have a point? If it thought that, it is not competent to evaluate such things. Kimberlin's Second Amended Complaint is vague and ambiguous about his claim against the Spectator:

Defendant The American Spectator published numerous defamatory articles by Defendant McCain and then removed them. Defendant McCain complained to the editor and the articles were then republished in February 2014 with different urIs. The sheer number of articles published by the American Spectator about Plaintiff demonstrates malice an intent to harm him and his business prospects. For example, in one, titled "Terror By Any Other Name," Defendant McCain imputes that Plaintiff was involved with swattings . . .

The complaint goes on to quote one of the stories at length without specifying what is false or defamatory about it.

As I have written before, the claims are patently frivolous. Some of the scrubbed articles rely on published court opinions and newspaper articles to tell Kimberlin's history. Others discuss his lawsuits seeking to quell speech. One of them quotes my analysis of why epithets used against Kimberlin are protected opinion. Moreover, even if the American Spectator honestly (but stupidly) thought that some portions of one or more of the articles were defamatory, that does not explain or excuse them scrubbing all mentions of Kimberlin from their web site. Vexatious and censorious litigants frequently demand that all mention of them be removed; actual journalists or commentators worth reading don't do it.

Most litigants settle. But some litigants are, or should be, different. Their cowardice in the face of frivolous litigation impacts everyone. Universities — which rely on free expression — are different, which is why it was unacceptable for the University of St. Thomas School of Law to pay money to vexatious litigant Joseph Rakofsky rather than defend the right to write about public court proceedings. Any institution that bills itself as a "magazine," that has pretenses to journalism or commentary, is different as well. American Spectator has a journalistic and social obligation to defend itself and therefore defend free speech against censorious litigation. By surrendering and scrubbing content, the Spectator has abetted and encouraged abuse of the legal system and emboldened people like Kimberlin to sue to remove speech they don't like. They've betrayed their purpose. That's unacceptable.

It would be inaccurate to say that the American Spectator will lose credibility generally as a result of this decision. Its breathless partisanship and assorted oddities limit its credibility to its target audience of the like-minded. Doing this will wound its general credibility in the sense that the Weekly World News would hurt its credibility by doing a very one-sided hit piece on Bat-Boy. But this surrender will, and should, eviscerate its credibility with its target audience and its readers. First, how can it be taken seriously as an institution willing to speak truth to power if it caves to a frivolous lawsuit by a domestic terrorist?3 Second, how can they be taken seriously as a conservative institution that will question liberals, when they yield to a blatant attempt to abuse the legal system to retaliate against conservative viewpoints?

No. They're done.

A number of serious thinkers and good writers have written for the Spectator over the years. It's possible for a serious person to write for an unserious publication. (I have to keep telling myself that, since I wrote a couple of things for Salon.) But at some point it's fair to ask a writer why they are associating with a particular publication. I propose that we begin to ask that of anyone writing for the American Spectator — by email, by Twitter, by whatever medium available. Take, say, Ben Stein. You're an in-print and on-screen tough guy, Ben. Why would you continue to write for an institution that acted this way? Just asking.

I wrote to the American Spectator and its Managing Editor seeking comment, but did not receive a reply. I would like to ask them some questions. Did they even attempt to find someone to offer a vigorous First Amendment defense? Did they pay Kimberlin money — money he will use to sue other critics? If they think they faced liability risk, what particular statements of fact do they think were false? And is this going to be a thing now?

30

Follow-Up: U.C. Berkeley Chancellor Nicholas Dirks Gets Free Speech Right This Time

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Last week I criticized an email from U.C. Berkeley Chancellor Nicholas Dirks that was either dangerously ambiguous or flat wrong about the scope of free speech.

Chancellor Dirks has just sent a follow-up email, probably prompted by the widespread attention from other blogs that aren't so off-putting and creepy as this one. From a tipster, here it is:

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48

Yale Might Want To Look Into Some Sort of Basic Civic Literacy Course

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Ayaan Hirsi Ali is a very controversial figure: some revere her for her advocacy for women, some revile her for her extremely blunt and broad condemnations of Islam. Earlier this year Brandeis University joined the disinvitation craze and rescinded her honorary degree and speaking engagement.

Now she's been invited to speak at Yale. Predictably, some student groups are outraged. 35 student groups have signed a letter by the Muslim Students Association condemning Ali and asking that another speaker be brought in to provide balance (not unreasonable) and that Ali's speech be limited to her personal experience and professional expertise (completely unreasonable).

Yale is not a public entity and is not bound by the First Amendment. It's only bound by American values and by its stated commitment to free speech. But the Muslim Students Association doesn't think this is free speech:

[MSA Board Member Abrar Omeish '17] said that the group and their Islamic values uphold freedom of speech.

“The difference here is that it’s hate speech, [which] under the law would be classified as libel or slander and is not protected by the First Amendment. That’s what we’re trying to condemn here.”

The Yale Daily News lets that pass without comment.

But Abrar Omeish is wrong. Very wrong. First, there is no general exception to the First Amendment for anything called "hate speech." Such speech is clearly protected unless it amounts to a serious call for imminent violence. Second, you can't libel or slander a "race" in America. Under the group libel doctrine, the First Amendment protects statements that do not identify a specific person or persons. Moreover, hyperbole and statements of opinion (at least ones that do not include false facts about a specific person) are protected by the First Amendment.

Abrar Omeish's legal statement is incorrect. It's clearly incorrect to anyone with a passing knowledge of the subject. Its wrongness can be easily determined, as surely as if someone had told the Yale Daily News "women won't be a factor in this election because they don't have the vote." Oddly, though, the Yale Daily News lets the legal assertion go unchallenged. How difficult would it have been to get a quote from a professor at Yale Law? Since they don't do real grades there they probably have plenty of spare time.

In a way, this reminds me of the feckless "balance" of modern journalists who want to invite an Apollo 11 conspiracy theorist for every moon landing story they do. I have no problem with the Yale Daily News quoting someone in their incorrect understanding of the law. But when journalists don't take even minimal steps to find out what the law actually is, they are promoting civic ignorance.

Via Peter Bonilla.

195

U.C. Berkeley Chancellor Nicholas Dirks Gets Free Speech Very Wrong

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This is U.C. Berkeley's Chancellor, Nicholas Dirks.

Oh hai let us talk "free speech" lol.

Oh hai let us talk "free speech" lol.

Yesterday Chancellor Dirks sent an email about free speech to Berkeley students, faculty, and staff. In today's competitive publishing environment it is astonishingly difficult to distinguish yourself as an academic by being wrong about free speech, but Chancellor Dirks is equal to the challenge. His email is so very bad on every level — legally, logically, rhetorically, and philosophically — that it deserves scrutiny.

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24

Ares Rights, Bless Its Heart, Continues Bumbling Attempts At Censorship

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Last summer I wrote about Ares Rights, a nominal "anti-piracy" firm that acts as a small-time legbreaker for various South American governments. When we encountered Ares they were trying to scrub discussions of Ecuador's spying practices through bogus DMCA notices. More recently Ares Rights abused the DMCA to suppress reporting on Ecuadoran corruption.

Now — because the internet is all about shoving everything up its own ass, as Jeff Winger would say — Ares Rights is sending out frivolous DMCA demands trying to silence discussion of its use of frivolous DMCA demands. Ares Rights responded to the Electronic Frontier Foundation's blog post about their abuse with, as Adam Steinbaugh reports, sending a DMCA notice demanding removal of the blog post. If that's not meta enough for you, now Ares Rights has issued a DMCA notice seeking to take down Adam Steinbaugh's blog post discussing their DMCA notice targeting the EFF's blog post discussing their prior DMCA notices.

It's not clear what Ares Rights hopes to accomplish. Their DMCAs will fail. This won't slow coverage. Trying to brush off the EFF or Steinbaugh with a DMCA notice is like trying to get a dog to stop humping your leg by petting it and feeding it bacon. Maybe they bill by the hour, even for patently ridiculous tasks? Maybe they are trying to convince their Ecuadorian masters that they are doing something, anything? Maybe they are just really very bad at their jobs? Stay tuned to find out.

Meanwhile, maybe you could go to their Facebook page and tell them what you think.

Edited to add: Ares Rights is deleting comments on their Facebook page, but they can't delete reviews here.

Adam Steinbaugh has responded to the DMCA notice.

59

Patrick McLaw, Skepticism, And Law Enfocement's Obliging Stenographers

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Imagine a local news channel in a small city. The channel starts running stories fed to it by criminals, thugs, and n'er-do-wells. The stories are uncritical and unquestioning. "Local methamphetamine dealers report that their product is more reasonably priced and safer than ever," goes one report. "Consent: is it an unfairly ambiguous concept?" goes another. "A career burglar explains why alarms are a bad investment," goes the third.

Seems ridiculous, like something out of The Onion, doesn't it? Yet we endure the equivalent all the time — news stories that are indistinguishable from press releases written by law enforcement or government.

Take the story of Patrick McLaw or Maryland. Several writers are posing troubling questions about whether McLaw was suspended from his teaching job, subjected to some sort of involuntary mental health examination, and his home searched based on the fact that he wrote science fiction novels set in 2902 under a pen name. Jeffrey Goldberg explains:

A 23-year-old teacher at a Cambridge, Maryland, middle school has been placed on leave and—in the words of a local news report—"taken in for an emergency medical evaluation" for publishing, under a pseudonym, a novel about a school shooting. The novelist, Patrick McLaw, an eighth-grade language-arts teacher at the Mace's Lane Middle School, was placed on leave by the Dorchester County Board of Education, and is being investigated by the Dorchester County Sheriff's Office, according to news reports from Maryland's Eastern Shore. The novel, by the way, is set 900 years in the future.

Though I am generally receptive to believing the worst about law enforcement and local government, I was skeptical when numerous people emailed asking me to write about this. I suspected that more than two books were at issue. Subsequent reporting suggests that McLaw may have sent a letter that was the trigger of a "mental health investigation":

Concerns about McLaw were raised after he sent a four-page letter to officials in Dorchester County. Those concerns brought together authorities from multiple jurisdictions, including health authorities.

McLaw's attorney, David Moore, tells The Times that his client was taken in for a mental health evaluation. "He is receiving treatment," Moore said.

Because of HIPPA regulations mandating privacy around healthcare issues, he was unable to say whether McLaw has been released.

McLaw's letter was of primary concern to healthcare officials, Maciarello says. It, combined with complaints of alleged harassment and an alleged possible crime from various jurisdictions led to his suspension. Maciarello cautions that these allegations are still being investigated; authorities, he says, "proceeded with great restraint."

What's more, he told The Times, "everyone knew about the book in 2012."

We need more facts before we draw firm conclusions, but for the moment, I think there is reason to believe that the story may be more complicated than the provocative "authorities overreact to citizen's fiction writing" take.

But it is not at all surprising that people would leap to that conclusion. Two factors encourage it.

The first factor is law enforcement and government overreach. When schools call the police when a student writes a story about shooting a dinosaur, and when law enforcement uses the mechanism of the criminal justice system to attack satirical cartoons or Twitter parodies, it is perfectly plausible that a school district and local cops would overreact to science fiction.

The second factor is very bad journalism. The Patrick McLaw story blowing up over the long weekend can be traced to terrible reporting by WBOC journalist Tyler Butler in a post that was linked and copied across the internet. Butler reported McLaw's pen name as a sinister alias, reported as shocking the fact that McLaw wrote science fiction about a futuristic school shooting, and quoted law enforcement and school officials uncritically and without challenge. Faced with the bare bones of the story, any competent reporter would have asked questions: is this only about the two books he wrote? Was there a basis, other than fiction, to think he posed a threat? Are there any other factors that resulted in this suspension and "mental health examination?" Was the examination voluntary or involuntary? Is it reasonable to suspend and "examine" someone and search their home over science fiction?

Even if authorities refused to answer those questions, a competent reporter would discuss them. "Authorities declined to say whether any factors other than the two books led to the investigation," Tyler Butler might have written. Asking the questions and reporting on them might have restrained our temptation to believe the worst. Instead he gave us this:

Those books are what caught the attention of police and school board officials in Dorchester County. "The Insurrectionist" is about two school shootings set in the future, the largest in the country's history.

Journalists ought to ask tough questions of government and law enforcement, to present us with the facts we need to evaluate their actions. But too often they don't. Too often journalists run with law enforcement "leaks" without considering how the leaks impact the rights of the suspects, or asking why the government is leaking in the first place. Too often journalists allow themselves to be manipulated by law enforcement, not recognizing the manipulation as the important part of the story. To often journalists accept the headline-grabbing take rather than the less scandalous but more correct take. Too often journalists buy access with the coin of deference. Too often journalists report the law enforcement spin as fact.

That's why when a local news channel reports matter-of-factly that a man was detained and "examined" over science fiction, it doesn't occur to us to question the story. Just as it's entirely plausible that the government might do it, it's entirely plausible that journalists might report it without criticism, analysis, or apparent consciousness of how outrageous it would be.

48

Attorney Mike Meier Meets The Streisand Effect, Does Not Enjoy Experience

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Attorney Mike Meier used to be only a little bit infamous. A few sites like Fight Copyright Trolls criticized him, painting him as someone who used to decry copyright trolling but then switched sides and became a copyright troll.

But those posts were relatively obscure.

Then Meier, whom one senses did not come to the law via rocketry, came up with a cunning plan: he sent DMCA notices complaining about blog posts criticizing him. There were several problems with these notices: (1) he sent them to the sites' registrars rather than their hosts, (2) he used them to complain about defamation, which is not covered by the DMCA, and (3) he complained about uses of his images that were clearly, on their face, fair use.

The natural and probable result of Meier's flailing attack was widespread infamy. His targets Fight Copyright Trolls and Extortion Letters ridiculed his hamfisted efforts. Those posts were picked up, and gleefully discussed, by far bigger sites including The Consumerist, BoingBoing, TorrentFreak, Techdirt, and others. The number of people who have read negative things about him has gone up by a couple of orders of magnitude. Some of the past unpleasantness he has experienced — like the time a federal court excoriated him in a sanctions order, or the time he stipulated to a reprimand by a state bar — have reached a far wider audience.

But Mike Meier's legal threat was not foolish just because it exposed his behavior to more readers. It was foolish because it exposed him widely as a fool. People hire lawyers they trust. They want to be able to rely upon their lawyer's advice, and to make difficult decisions based upon that advice. But who would trust the advice of a lawyer who would engage in a legal tactic that is so foreseeably self-destructive? If Meier had sent the DMCA notices on behalf of a client, I would call it rank malpractice and tell his client to consider suing him. In 2014, minimal legal competence requires an attorney to anticipate and understand the Streisand Effect.

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.

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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.

"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?

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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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.

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.4 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.