Tagged: Free Speech

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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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.

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.1 First the court noted that Caner had conceded that he never filed a copyright application for one of the videos; that's a prerequisite to maintaining a copyright suit. Second, the judge agreed that the posting of the video was classic fair use, because it was a critical non-commercial use designed to impact discussion of Caner's dishonesty. The court made short work of Caner's thoroughly ridiculous arguments: that the defendants were not protected by fair use because it was the work of a "vindictive" "cyber terrorist", that the defendants were "not qualified" to offer criticism of Caner, and that fair use only protects "appropriate criticism from people that are qualified to render those opinions i[n] the market place and exchange of ideas in academia and elsewhere.” This is too much whaarbaargl.

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

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

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

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

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

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

Please join me in congratulating the victorious pro bono team.

Popehat Signal Update: Dream Team Victory In Texas

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

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

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

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

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

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

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

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

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

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

Significant Developments In D.C. Anti-SLAPP Law.

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UPDATE: Mr. Steyn advises me through Twitter that he has declined appeal of the Anti-Slapp motion to dismiss, because he wishes to conduct discovery against Dr. Mann. That makes the video below something of a wretched abortion, but as the other defendants in the case (Rand Simberg, National Review, and the Competitive Enterprise Institute) are moving forward with the appeal, I leave the video unaltered and unedited. My apologies to Mr. Steyn.

_____________________________________

Doe v. Burke is an important decision, handed down last week, on the District of Columbia's Anti-SLAPP statute. The D.C. Circuit Court of Appeals held that an anonymous "John Doe" defendant, sued for libel over internet comments concerning an attorney in a high-profile lawsuit, could immediately appeal the District Court's denial of a motion to quash a subpoena aimed at discovering his identity. The Court went further, and dismissed the suit against Doe entirely.  You may read the Burke decision here:

Doe v. Burke D.C. Anti-Slapp Opinion

This is a significant case. Defamation plaintiffs thinking of using D.C. as a venue for strategic lawsuits against public participation should think twice.  We've previously covered D.C.'s Anti-SLAPP law, extensively, in the lawsuit filed by climate scientist Michael Mann against journalists Mark Steyn and Rand Simberg. You may find our coverage here, and here.  As Steyn, Simberg, and their co-defendants are appealing the denial of their Anti-SLAPP motion to dismiss against Mann, we've invited a guest who is expert in the law of defamation to comment on the case:

Department of Health And Human Services Threatens Blogger Over Satirical Posts

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

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

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

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

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

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

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

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

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

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

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

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

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

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Guest Post: Peoria Mayor Jim Ardis On The Rule of Law

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  • BOWYOURHEAD

Today's guest author, Jim Ardis, is the Mayor of Peoria, Illinois.

Ladies and gentlemen, the rule of law is what separates us from animals and barbarians and people from Joliet. It is that rule of law that I now invoke to prevent so-called "satire" from being used to abuse my person and position.

By now you have heard that someone pretending to be me on Twitter has breached the peace by suggesting that I am some sort of corrupt, disturbed drug fiend. The statements attributed to me have been scandalous, personally hurtful, and textually ambiguous.

Let me clear some things up right now:

  • I am devoted to my loving family and have not "shacked up" in a motel with a so-called "notorious furry."  I do not visit motels because their low thread-count sheets make my skin chafe.  I have not been observed at any motels and if I had been it would have been to visit with community leaders about growing jobs in Peoria's business climate.  I had a soiled fox costume in my car because I was going to participate in a pantomime for children at a local cancer hospital.  My staff's nickname for me is "Swift," not "Yiff."
  • I have not hired any sex workers.  I have nothing against them, and feel our system should do a better job protecting them from harm and providing them with opportunities to better themselves and stop being such fucking liars about important people.
  • I do not have a "drug problem."  Drugs are a scourge of impoverished, powerless, and dark people everywhere.  I am fortunate to be affluent, to have friends, and to know many people in the criminal justice system.  Throughout my career I have strongly advocated that people, including myself, avoid the ruinous consequences of drugs.
  • Interns hallucinate and are prone to sudden unconsciousness.  It's a thing.  You can Google it.
  • I have not accepted cash in low denominations for political favors, as has been claimed.  That's ridiculous.  I am reliable and honest.  Look — I have a lapel pin!

People may believe that they can get away with mocking me or saying unpleasant things about me because of the "First Amendment."  They are mistaken.  Here in Peoria we have a system that respects the law — and respecting the law means respecting the Office of Mayor.  When I was victimized by satire — abused by someone with no regard to my right to self-esteem and dignity — my good friend Peoria Police Chief Steve Settingsgaard sprang into action. Could you get the police to devote substantial resources to investigating someone being making fun of you on the internet? Probably not — but frankly you don't carry the burdens of state that I do. Uneasy lies the head that wears the crown, and all that.

With the help of Steve, your tax dollars, scores of police hours, and other resources, we were able to present search warrant applications. First we got a warrant for Twitter from Judge Kirk D. Schoenbein. Good old Kirk understood that "satire" is no excuse for disrespect here in Peoria. Then we went to Judge Lisa Wilson to force Comcast to cough up the subscriber information associated with the Twitter account. Lisa gets it too: who does this punk think he is, making fun of the mayor? Finally we went to Judge Kim Kelley with an application for a warrant to search this asshole's home, and to toss it for drugs while we were at it. And what do you know? They found drugs! Time for this little shit to face some real consequences.

You hear all the time about judges getting all bent out of shape about the First Amendment. So why did three judges issue warrants here? Well first of all, they all understood that as the Mayor of Peoria I am an important man, and my reputation is something that should be protected under the law. Second, I made it clear in the warrant application how just plain mean some of those "satirical" tweets were. Now, some eggheads out there might say that the warrant suggested, on its face, that the tweets were not meant to be taken seriously, and that there's no articulated basis to search for drugs in the warrant. You just remind those eggheads that a Mayor in a town like Peoria can get things done. I know people, and people know me, and when I want a warrant, then by God I get a warrant. I know all of these judges. This is exactly why you cultivate relationships, my friends. That kid in your fourth grade class eating paste and wetting himself during story time may seem worthless to you now, but you never know when he's going to wind up having the power of life and death over people because he's got an inoffensive name and photographs well.

In conclusion: this is a case of the system working the way it ought to. Someone disrespected me, a man of respect. The system turned around and bit him in the ass. That will teach you to think twice about mouthing off about people like me, won't it?