Thomas G. Smith made a fundamental error: he assumed that as an American he had a right to use blunt language to criticize the police.
Legally, he was right. Practically, he was wrong.
Thomas G. Smith made a fundamental error: he assumed that as an American he had a right to use blunt language to criticize the police.
Legally, he was right. Practically, he was wrong.
I bring good news: top-notch work by generous and dedicated lawyers has produced a free speech victory in Texas.
Last year I lit the Popehat Signal seeking help for J. Todd DeShong, a blogger and AIDS activist. DeShong, a longtime critic of the nutty and conspiratorial junk science occasionally directed at AIDS issues, ran afoul of Clark Baker, an ex-cop and full-blown AIDS denialist who offers "expert" "witness" services. You may recall my description of Baker's phone call to DeShong's mother:
I interviewed Mr. DeShong's mother, a sweet lady with a spine of Texas steel. She told me about how Mr. Baker called her out of the blue and ranted at her. Mr. Baker angrily denounced her son, and told her that, as a police officer, he knew about dangerous people, and that Ms. DeShong should fear that her son would kill her in her sleep. He also threatened that he was arranging for doctors Mr. DeShong had criticized to sue him for defamation. Ms. Deshong pointed out that such a suit would bring no joy; Todd DeShong is not a rich man. "But you have money, right? You have a house, right?" responded Mr. Baker, implying that he might put her assets at risk. "He thought he could intimidate me. He didn't know who he was dealing with," said Ms. DeShong, who sounds like a good person to have at your back.
Baker sued DeShong in federal court in Texas over DeShong's criticism of Baker's AIDS-denialist rhetoric and his "expert" "witness" service the HIV Innocence Group. Baker claimed that DeShong's criticism was not only defamation, but violation of the HIV Innocence Group's trademark rights in its name. Baker's motive may have been mixed: he may have wanted to silence DeShong, but he may also have wanted to use the federal suit to pursue his conspiracy theories about AIDS researchers. I cannot say what his lawyer was thinking, if he was.
Such federal litigation is ruinously expensive to defend; DeShong couldn't afford a defense and Baker might have succeeded in silencing critics through abuse of the legal system. Fortunately, lawyers who care about free speech rode into the breach: D. Gill Sperlein, Paul Alan Levy of Public Citizen, Gary P. Krupkin, and Neal A. Hoffman filed motions to dismiss (attacking the thoroughly specious trademark claims) and a strong motion under Texas' relatively new anti-SLAPP statute.
Last week the dream team won. United States District Judge Sam R. Cummings granted DeShong's motion to dismiss the trademark claims, and then refused to hear the state law claims and dismissed them. The court's ruling held the line on a key free speech concept: using a company's name to criticize it does not violate the company's trademark in the name. Baker had claimed that sites like "HIV Innocence Group Truth" violated trademark rights and were part of an effort to destroy him by discrediting him. But Judge Cummings pointed out "[n]o reasonable person would take one look at DeShong's website and believe that Baker authorized its content." Moreover, the court explained, trademark law doesn't protect a company from criticism. The Lanham Act protects a competitor from profiting from the misuse of another company's trademark; it does not protect a company from vigorous and even ruinous criticism employing its name. Judge Cummings also rejected Baker's argument that DeShong violated trademark rights by using a URL likely to dominate search results for "HIV Innocence Group." That theory, too, would have allowed the Bakers of the world to abuse the Lanham Act to prevent criticism.
I suspect Paul Alan Levy, who has done a lot of important work protecting "gripe sites" and critics from bogus trademark claims, had a strong hand in winning this issue.
Having dismissed the federal trademark claim, Judge Cummings declined to exercise supplemental jurisdiction over the state claims like defamation, finding that state issues (like application of Texas' anti-SLAPP statute) would predominate over federal issues. Therefore he didn't reach the anti-SLAPP motion. That's an increasingly common approach by federal judges in such cases; it's what the judge did in the censorious Naffe case in which I was co-counsel.
Baker has appealed, and could conceivably re-file his censorious screed in Texas state court. If he does, the dream team's work on the anti-SLAPP motion is already done, and I suspect Baker will find no joy before a Texas state judge. I'd lay very good odds that Baker will lose his appeal. Meanwhile, I hope that DeShong's legal team seeks and recovers legal fees from Baker based on winning the Lanham Act claim. The suit was contemptible and represents exactly the sort of case in which federal courts should use their statutory power to award attorney fees to deter such abuse of the system.
Please join me in expressing admiration and thanks to Gil, Paul, Neal, and Gary. Their generosity with their time and talents didn't just help DeShong's free speech: it helped yours. Contributions like theirs are essential to defending free speech principles in a broken system that allows unscrupulous clients and lawyers to silence dissent by inflicting ruinous defense costs. They are heroes.
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:
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:
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 propositions1 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.
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 Wednesday2 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.
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.
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:
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?
Tragedy is inevitable. Our reaction to tragedy is not. We cannot govern every risk, but we must govern our reactions to risks. Here's the question we must ask ourselves: when awful things happen in the world, will we abandon reason and accept any measure urged by officials — petty and great — who invoke those awful things as justifications for action? Or will we think critically and demand that our leaders do so as well? Will we subject cries of "crime" and "drugs" and "terrorism" and "school shootings" to scrutiny? Will we be convinced to turn on each other in an irrational frenzy of suspicion, "for the children?"
If we don't maintain our critical thinking, we wind up with a nation run more and more like Bergen Community College in New Jersey, where we may be questioned and sent for reeducation for posting a picture of our daughter in a popular t-shirt on Google+.
Francis Schmidt is a popular professor of design and animation at Bergen. Schmidt posted to Google+ a cute picture of his young daughter wearing a Game of Thrones t-shirt in a yoga pose next to a cat. The t-shirt was this one, bearing the phrase "I will take what is mine with fire and blood," a quote from Daenerys Targaryen, a fictional character in a series of fantasy novels (which has sold tens of millions of copies) turned into a hot TV series on HBO (with close to 15 million viewers per episode.) Googling the phrase will instantly provide a context to anyone unfamiliar with the series.
So: a professor posts a cute picture of his kid in a t-shirt with a saying from a much-talked-about tv show. In the America we'd like to believe in, nothing happens. But in the America we've allowed to creep up on us, this happens:
But one contact — a dean — who was notified automatically via Google that the picture had been posted apparently took it as a threat. In an email, Jim Miller, the college’s executive director for human resources, told Schmidt to meet with him and two other administrators immediately in light of the “threatening email.”
Although it was winter break, Schmidt said he met with the administrators, including a security official, in one of their offices and was questioned repeatedly about the picture’s meaning and the popularity of “Game of Thrones.”
Schmidt said Miller asked him to use Google to verify the phrase, which he did, showing approximately 4 million hits. The professor said he asked why the photo had set off such a reaction, and that the security official said that “fire” could be a kind of proxy for “AK-47s.”
Despite Schmidt’s explanation, he was notified via email later in the week that he was being placed on leave without pay, effectively immediately, and that he would have to be cleared by a psychiatrist before he returned to campus. Schmidt said he was diagnosed with depression in 2007 but was easily cleared for this review, although even the brief time away from campus set back his students, especially those on independent study.
So. That happened.
Walter said she did not believe that the college had acted unfairly, especially considering that there were three school shootings nationwide in January, prior to Schmidt’s post. The suspects in all three shootings were minors targeting their local schools (although three additional shootings at colleges or universities happened later in the month).
This — this — is the core demand of the modern Fear State. Tell us what to fear, leaders, for the night is dark and full of terrors. Tell us what we have to do. Tell us what to think, and how to assess risks. Tell us "if you see something, say something" so we may feel duty-bound to vent our fears and insecurities about our fellow citizens rather than exercising judgment or compassion or proportion. Assure us that you must exercise your growing powers for our own safety, to ward off the terrible things we worry about.
Is Bergen some sort of unlikely citadel of irrationality? At first glance it may seem so. After all no well person would interpret the t-shirt as a threat and report it. That takes irrationality or dysfunction. No minimally competent or intelligent or honest school administrator would pursue such a report upon receiving it; rather, anyone exercising anything like rational discretion would Google the thing and immediately identify it as a mundane artifact of popular culture. No honest or near-normal intellect would say, as Jim Miller did, that the "fire" in the slogan might refer to an AK-47, a profoundly idiotic statement that resembles arguing that "May the Force Be With You" is a threat of force. Nobody with self-respect or minimal ability would claim that this professor's treatment was somehow justified by school shootings.
But Bergen isn't an anomaly. It's not a collection of dullards and subnormals — though Jim Miller and Kaye Walker could lead to think that it is. Bergen is the emerging norm. Bergen represents what we, the people, have been convinced to accept. Bergen is unremarkable in a world where we've accepted "if you see something, say something" as an excuse to emote like toddlers, and where we're lectured that we should be thankful that our neighbors are so eager to inform on us. Bergen is mundane in a world where we put kids in jail to be brutalized over obvious bad jokes on social media. Bergen exists in a world where officials use concepts like "cyberbullying" to police and retaliate against satire and criticism. Bergen exists in a world where we have allowed fears — fear of terrorism, fear of drugs, fear of crime, fear for our children — to become so powerful that merely invoking them is a key that unlocks any right. Bergen exists in a country where our leaders realize how powerful those fears are, and therefore relentlessly stretch them further and further, so we get things like the already-Orwellian Department of Homeland Security policing DVD piracy.
Certainly the Miller-Walter mindset is not unique in American academia. We've seen a professor's historical allusion cynically repackaged as a threat. We've seen a community college invoke 9/11 and Virginia Tech and Columbine to ban protest signs. In pop-culture debacle much like this one, we've seen a college tear down a "Firefly" poster as a threat. We've seen satire and criticism punished as "actionable harassment" or ""intimidation."
As a nation, we all need to decide whether we will surrender our critical thinking in response to buzzwords like "terrorism" and "drugs" and "crime" and "school shootings." On a local level, we must decide whether we will put up with such idiocy from our educational institutions. So tell me, students and teachers and alumni of Bergen Community College. Are you going to put up with that? Because institutions that act like this are not helping young people to be productive and independent adults. They are teaching fear, ignorance, and subservience.
Update: Bergen made a statement doubling down:
"The referenced incident refers to a private personnel matter at Bergen Community College. Since January 1, 2014, 34 incidents of school shootings have occurred in the United States. In following its safety and security procedures, the college investigates all situations where a member of its community – students, faculty, staff or local residents – expresses a safety or security concern."
There are at least two maddening components to this. First, they didn't just "investigate" — they suspended the professor and made him see a psychiatrist because he posted a picture of his daughter in a wildly popular t-shirt from pop culture. Second, the statement is an implicit admission that the college refuses to exercise critical thinking about the complaints it receives. There is no minimally rational connection between school shootings — or any type of violence — and a picture of someone's kid in a pop-culture t-shirt. The college is saying, in effect, "complain to us about your angers or fears, however utterly irrational, and we will act precipitously on them, because OMG 9/11 COLUMBINE TEH CHILDREN." Shameful. Ask yourself: what kind of education do you think your children will get from people who think like this?
Here's a hard fact about free speech: vindicating it in American courts takes either money (and lots of it), or lawyers willing to provide pro bono help. Right is right, and law is law, but court is court — and winning in court generally requires competent representation, which is ruinously expensive for normal people. It's not fair, it's not right, but it's true.
Last August I put up the Popehat Signal seeking pro bono help for an anti-telemarketing blogger who writes at the Telecom Compliance News Press. The blogger was sued by an attorney named F. Antone Accuardi, who claimed that the blog falsely associated him with companies involved with robocalling and other telemarketing violations.
Troy Sexton stepped up. He filed a motion under Oregon's anti-SLAPP statute in response to Accuardi's complaint, and this March, he prevailed. Accuardi's complaint is here, Sexton's anti-SLAPP motion is here, and the Magistrate Judge's lengthy and detailed order granting the anti-SLAPP motion is here. Sexton's work was absolutely top-notch. The main basis of the judge's order is that the blog's comments of Accuardi were statements of opinion based on disclosed and linked facts about the companies and Accuardi's connections to them, and therefore protected by the First Amendment. It's a very thorough opinion and worth a read if you're interested in First Amendment and anti-SLAPP issues.
This is a tremendous victory for the blog, and for Troy Sexton and his firm. Sexton has a motion for fees pending; though he stepped in pro bono, I hope that he winds up collecting at his full rate from Accuardi. I am more free, and so are you, because people like Troy Sexton are willing to step up and contribute their time and skill. Please join me in congratulating him.
ATTENTION ENTITLED MISCREANTS IN HOUSTON AND ELSEWHERE:
You may believe that the First Amendment to the United States Constitution gives you a right to petition the government for the redress of grievances. You may also believe that Article I, Section 27 of the Texas Constitution gives you the same right. But those rights must yield to the personal inconvenience and/or annoyance of your betters in government, specifically including but not limited to Houston City Attorney David M. Feldman and the other officials of that city.
Look, you pack of sticky-fingered dawdlers, these are busy, busy people, doing important government things that you cannot possibly understand. They don't have time to be distracted by your email campaigns addressing things you have the gall to think they ought to do, let alone respond to your confused and ill-penned entreaties. So CEASE AND DESIST. Go back to the way things are supposed to be: your leaders do government and you sit there and take it. Don't make Houston City Attorney David M. Feldman tell you again:
Robert – Please consider this as a formal demand that your client, Uber, cease and desist from transmitting or aiding in the transmission of form e-mails to City officials regarding the adoption of an ordinance to accommodate their enterprise. Despite my informal request to you by telephone on Monday, the excessive number of e-mails has gone unabated, to the point that it has become harassing in nature and arguably unlawful. Failure to cease and desist will be met with appropriate action by the City.
Do you hear that, you pack of querulous intermeddlers? ARGUABLY. UNLAWFUL. By God you had better take that seriously, whatever the so-called Constitutions of the United States or Texas say, because that legal opinion comes from a man who "has been named to Texas Super Lawyer (2004-2009)," which means that he takes marketing very seriously, which in turn demonstrates that he is not a man to be trifled with. No sir. He is paid $350,000 per year to give legal opinions like that so you know they must be of the highest quality.
No go back to watching wrestling or eating pork rinds or whatever it is you normally do when you aren't interfering with the duties of your leaders.
Steve Stockman is a Republican Member of Congress from Texas currently running for Senate on the "should we impeach President Obama" platform. Steve Stockman's angry. Not Texas-shoot-someone-or-wear-stupid-hats angry. Suing angry.
Stockman has recently sued Texans for a Conservative Majority over their campaign ads and communications against them. He says they're guilty of some of the most "outrageous, malicious defamation ever recorded in Harris County." Stockman complains that the defendants defamed him by saying that he was "jailed more than once," that he was "charged with a felony," and that he violated ethics rules.
There are a number of problems with this suit.
First problem: as a public figure, Stockman will have to prove that the defendants made false statements against him with actual malice — meaning knowing that they were false or with reckless disregard to their truth or falsity. But as the Dallas Morning News reports, Stockman previously admitted to newspapers that he had been jailed several times and charged with a felony:
Tonight, Rep. Steve Stockman accused a group that supports Sen. John Cornyn of lying about him, by asserting that he had been “jailed more than once” and was “charged with a felony.”
That is strange, because Stockman has admitted to these facts, several times.
“I may have been in jail a couple of times, two or three times,” he told this newspaper.
As for the felony charge, that stemmed from the time his girlfriend hid three Valium tablets in his underpants when he was reporting for a weekend in jail. “When they found that they charged me with a felony,” he told the Houston Chronicle.
I suppose it's possible that Stockman actually means to complain about some other unspecified statements defendants made that don't match things he's already admitted are true. However, as a general rule, if a defamation plaintiff doesn't list a false statement in their complaint, you can predict that either (1) the statement they are complaining about is a non-actionable statement of opinion and they are trying to hide that fact, or (2) it doesn't exist. Remember what we say around these here parts: vagueness in a legal threat is the hallmark of meritless thuggery.
So: it's not clear how the defendants could have committed defamation by repeating something Stockman previously admitted. How can he prove that it's false, let alone that they knew it was false or were reckless about its falsity? Perhaps Stockman means to suggest that it's reckless to take a Member of Congress at his word, an argument with some appeal. Or perhaps Stockman's argument about the ethics charges has merit.
Next problem: in his complaint, Stockman repeatedly argues that truth is not a defense to saying these things about him:
Even if true, which it is not, truth is not a defense to this statement.
That's pure bullshit, and the attorney who asserted it is either dishonest or an idiot. "Whether the plaintiff is a public figure or not, falsity is always an element of the cause of action, and truth is an absolute defense to defamation. See Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964) (public figure); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 768–69, 106 S.Ct. 1558, 1559, 89 L.Ed.2d 783 (1986) (private figure); Bentley v. Bunton, 94 S.W.3d 561, 580 (Tex.2002) (public figure); Turner v. KTRK Television, Inc., 38 S.W.3d 103, 116 (Tex.2000) (public figure); McIlvain v. Jacobs, 794 S.W.2d 14, 15–16 (Tex.1990) (private figure)." Pardo v. Simons, 148 S.W.3d 181, 186 (Tex. App. 2004). The Supreme Court recently reaffirmed this.
The defendants ought to introduce Steve Stockman and his lawyer to Texas' new and vibrant anti-SLAPP statute, get the case dismissed, and get attorney fees. People considering whether to vote for Stockman ought to bear in mind that (1) someone nominally a member of a party that decries frivolous lawsuits is suing people for saying things about him that he's already said about himself, and (2) someone who takes an oath to uphold the Constitution is stating, falsely and moronically, that the Constitution lets him sue people for saying true things.
He sounds overqualified for the Senate.
Back in 2012 I wrote about Michael Mann's lawsuit against National Review Online, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg. There's been plenty of water under the bridge since then — the defendants have filed and lost a motion under Washington D.C.'s anti-SLAPP statute, appealed unsuccessfully, re-filed it as a result of procedural hijinks too dull to discuss here, and lost again.
My view of the case is unchanged. I think the statements Mann attacks are best viewed as opinions expressed through vivid rhetoric and hyperbole, rather than statements of literal fact susceptible to defamation analysis. That view is strengthened by the steady progress of the law since 2012 in cases like Cox v. Obsidian Finance, which I discussed last month.3 The tone and rhetorical flair of the statements, the places they were published, and their entire tenor strongly suggest they were argumentative opinions rather than falsifiable statements of fact. Therefore, they ought to be absolutely protected by the First Amendment. In this I agree with Jonathan Adler and Dan Farber.
Quite frankly I also think that the lawsuit is part of a larger effort to conduct the climate change debate by other means, including lawfare — part of the effort to label certain viewpoints as so unacceptable that they do not deserve full legal protection. As an example of the tone I am talking about, consider a cartoon in today's New York Times:
Mann's case may still be resolved on the grounds that he's complaining about protected opinions rather than defamatory statements of fact. Moreover, Mann may not be able to prove that the statements were false, or if they were false, that they were uttered with the requisite mental state. I will not dwell on that point; I'm scientifically illiterate.
I will, however, dwell briefly on Mark Steyn's disastrous response.
First, Steyn is representing himself — he characterized it as "firing" the well-qualified firm that was representing him. Such a defense can be ruinously expensive, and I'm sure that cost was one factor, but as you'll see it doesn't appear that it was the only one.
Second, Steyn has used the opportunity of defending himself to engage in what can only be described as pro-se antics. He's attacking the judges and the system both in print and in legally feckless and argumentative court filings. Is it Steyn's First Amendment right to rail against the judges associated with his case? Of course it is. May a pro se litigant file a motion as a vehicle to rant about the case as a whole, and the law, and society, and the universe at large? Sure. But while such behavior is viscerally satisfying, it tends to produce bad results. Judges are human, as are their law clerks.
As readers may have deduced from my absence at National Review Online and my termination of our joint representation, there have been a few differences between me and the rest of the team. The lesson of the last year is that you win a free-speech case not by adopting a don't-rock-the-boat, keep-mum, narrow procedural posture but by fighting it in the open, in the bracing air and cleansing sunlight of truth and justice.
Third, Steyn has now answered Mann's complaint and filed two counterclaims against Mann seeking $10 million. Steyn's answer and counter-claims are here. The counter-claims are, to put it mildly, problematical. Steyn doesn't state clearly what causes of action he is asserting, but his text suggests he is suing Mann for suing him, and for threatening to sue him and others, and for chilling speech by issuing legal threats. There are many problems with this legal theory. Among them: the litigation privilege generally prevents you from suing people for suing you, or for things they say in the lawsuit. The exception is the tort of malicious prosecution, but to sue someone for malicious prosecution you first must show that you won the case. Steyn hasn't won the case, and can't sue for malicious prosecution. (This is exactly why "I'm counter-claiming against you for suing me!!!" is something you generally only see from pro se litigants. It doesn't end well for them.) Moreover, the litigation privilege often covers threats to sue, treating them as part of the litigation as a whole.4
The bottom line is this: Mann's threats and litigation may well be privileged — immune from suit. If that's the case, then Mann may be able to respond to Steyn's counter-claims with an anti-SLAPP motion of his own. He may win, which would not only require Steyn to reach into his pocket for Mann's legal fees, but would hand Mann a huge and dramatic propaganda victory.5 I know California's anti-SLAPPP statute and litigation privilege well, but I am not an expert on District of Columbia law. But my review of the law suggests that Steyn's counter-claims are, at a minimum, a very risky gambit. Perhaps there is some theory behind them with a sound basis in law; perhaps Steyn is getting competent legal advice. But I am skeptical.
Mark Steyn seems very frustrated and impatient with the flaws and delays of the legal system, and how it has failed to dismiss what appears to be a censorious lawsuit attacking opinion. It's not unreasonable to be frustrated and angry. It's not unreasonable to say that our legal system ought not require this priest caste of lawyers to navigate lawsuits attacking our fundamental rights. It's not unreasonable to say that such things are outrageous, and the public ought to know about them. But it is unreasonable to expect to be able to navigate the existing complex legal system without training and experience. It is unreasonable to expect publicly castigating your judges to produce favorable results. It is unreasonable to expect angry pro se behavior to produce something other than angry pro se results. You can argue that things ought to be different. I do. But, in terms of producing a good result in a particular case, such arguments are like quarreling with the barrel of a gun.
I support the defendants, including Steyn, in their defense of Mann's censorious lawsuit. I would donate to a Steyn defense fund. I would, if asked, try to round up pro bono support for Steyn — though he is a much, much bigger fish in this bloggy ocean that I am and ought not need my help. I've supported Steyn's efforts against censors for years. But I can't support what appears to be either a grand mal seizure of self-indulgence or an ill-considered piece of performance art. Steyn's approach to this makes it significantly less likely that this case will produce a result favorable to free speech. That hurts not just him, but his codefendants and everyone who might face a censorious and politically motivated lawsuit. If Steyn's antics help Mann win, censors everywhere will be emboldened. I hope someone with Mark Steyn's ear convinces him to stop treating this as a show trial.
Back in October I described how attorney and blogger Cathy Gellis won a significant pro bono victory, quashing Oliver Gobat's subpoena to unmask the blogger behind the St. Lucia Free Press. Gobat, who was suing over blog posts from and about St. Lucia, sued in the United Kingdom, which is to defamation plaintiffs what Walt Disney World is to sticky and demanding children: a fantasy tourism destination. Cathy convinced a California court to quash a subpoena issued here based on the U.K. proceeding; that subpoena to the St. Lucia Free Press's California-based ISP sought the identity of the anonymous blogger. The court quashed the subpoena on the grounds, among others, that the United Kingdom proceedings that generated the subpoena were insufficient and did not comply with domestic free speech or due process requirements. The court even granted Cathy very modest fees and costs — though surely nothing compared to the hours she devoted to the important issues at hand.
But Mr. Gobat and his U.S. attorneys are persistent. They engaged in some rather desultory additional proceedings in the United Kingdom and re-issued the subpoena. Cathy Gellis filed a motion to suppress the subpoena again, and the result is nothing less than an utter rout of Gobat and his attorneys. The California court quashed the subpoena, issued an injunction forbidding Gobat from trying to subpoena the ISP again, and awarded $15,000 in attorney fees to Cathy Gellis, owed jointly by Gobat and his California lawyers.
But why did the court quash the subpoena originating in the U.K.? The court followed California law requiring defamation plaintiffs to make a "prima facie showing" of defamation in order to pierce a defendant's anonymity through discovery. That's not a particularly robust test — unlike the more protective Dendrite test favored in some jurisdictions, it only requires the plaintiff to offer some evidence which, if accepted, would satisfy the elements of defamation. Here, the court found that the statements Gobat complained of appeared to be opinion and hyperbole under American law, not actionable false statements of fact, and that American law controlled in evaluating whether a British subpoena could pierce anonymity in America. In his recommendation to the court, the Judge Pro Tem said this:
Applying the balancing test endorsed by Krinsky v. DOE 6 (2008) 159 Cal.App.4th 1154, 1165, and considering whether a prima facie case of defamation has been stated, the Court finds that the anonymous comments complained of appear to be opinion mixed with sarcasm and hyperbole, rather than objective statements of fact. See discussion in Krinsky v. DOE 6 (2008) 159 Cal.App.4th 1154 at 1175-1178. The Court rules that the 1st Amendment of the U.S. Constitution trumps English law in deciding whether a prima facie case for defamation has been made. Krinsky at 1173, citing Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 347 [states may define their own law of liability for defamation, but must remain within Constitutional limits].
In his recommendation to the court, the Judge Pro Tem highlighted why it would be perilous for American courts to pierce the anonymity of speakers just because a foreign court decided that their speech was defamatory:
My view is that the language in this case is not that far removed from that in the leading case of Krinsky — it is aggressively critical, but so over the top that the typical reader, reading in context, would recognize it as a rant—an opinion, possibly from a disgruntled consumer of the real estate, or simply from a gadly.
Under Krinsky, another issue is whether English law should be applied to determine if there is a prima facie case of defamation. Krinsky involved Florida law, so we may be dealing with a case of first impression in California. The cases cited above say “no” if English law has a looser definition of defamation than the U.S. Constitution. I posed a hypothetical to Gobat counsel: if a foreign country had a law stating that any woman who criticizes a man is liable for defamation, would a U.S. court use that law in deciding if there was a prima facie case of defamation for purposes of ruling on a subpoena just like the one in this case?
It's fairly unusual, by the way, for a court to make an attorney fee order jointly and severally payable by a party and the party's lawyer. Why would the court do that here? It might be because the second subpoena still suffered so clearly from the defects of the first. Or perhaps it was because Gobat's counsel implied, in a footnote, that Cathy Gellis might have to start legal proceedings in the U.K. to collect on the modest fees awarded in the prior motion:
Petitioner's apparent suggestion that Gobat's California counsel should be sanctioned so that Petitioner need not "chase down [Gobat] all over the world to recover fees and costs" (Pet.'s Mot. to Quash 9), is an improper one. There is no legal basis for levying expenses against a party's counsel as a proxy for levying those expenses against the party himself. Petitioner cites no statute or case law allowing such a practice. Additionally, Petitioner fails to show how he or she would need to "chase down" Gobat. In the event that Petitioner needs to collect a judgment from Gobat, he or she could easily do so by instituting an appropriate action in the U.K.
That was a tactical error. The right answer was "there is no need to sanction counsel because the party, which is taking advantage of this court's processes, will comply with its orders and pay what it is ordered to pay." This line was a red flag to the judge.
This is a tremendous victory for Cathy, and an important recognition of the state of the law protecting anonymity in California courts. Join me in congratulating her.
Sean P. Fodera is a science fiction writer who works in the publishing industry. He's angry.
He started out angry over ongoing upheaval in the science fiction and fantasy literature community. That upheaval is mirrored in the gaming community and skeptic community and other communities with devoted and vocal fanbases. It's a conflict between two groups: a group that thinks the communities have a problem with racism, sexism, and harassment and should take steps to address it, and a group that thinks that the first group is engaged in free-speech-suppressing political correctness and should be resisted. A full description of the dispute would be too lengthy for this post.6
The Daily Dot published a post about this ongoing dispute, and in the course of doing so quoted and linked to some of the angrier things that Fodera said about Mary Robinette Kowal, a science fiction author and officer of the Science Fiction and Fantasy Writers of America. Kowal has spoken out against harassment in the science fiction and fantasy literature community, and SFWA is currently a locus of controversy about such allegations and the official reactions to them. In forum threads on SFF.net, Fodera complained at rather tedious length about Kowal, called her things like "incompetent," said that she agitated him in a manner he compared to how dogs agitate him, and sneered that she was a hypocrite for complaining about sexism given how she sometimes dresses:
I find it very funny and ironic that she would jump on this bandwagon. For a long time, her website featured an array of photos of her in a diaphanous white outfit, posing on a beach. No metal bikinis or such, but they were not innocuous writer headshots either. One of them, with her recumbent on the sand with legs exposed, made her somewhat attractive. I also recall she's fond of wearing tight-fitting gowns and plunging necklines when she attends cons and award ceremonies.
I'll have to add "phony" to "incompetent" and "arrogant" in the mental tags I've assigned her.
Girls give up the right to complain about sexism unless they dress conservatively. It is known.
Anyway, if Fodera was angry before, this coverage made him really angry. How dare someone quote him and link to the full quotes! He penned this threat:
I will note that since I now have the name of the writer, and I can prove that the quotes were edited to change their meaning, I have a very good case for a libel suit. I suppose no one noted that I work in the legal profession within the publishing industry, and have taught college courses on the subject.
BTW, as of now, it looks like the article was "shared" 1,200 times already. That makes each of those sharers a part to the libel, and makes each of them equally culpable in the eyes of the law. I'll speak to my attorney first thing tomorrow.
The Streisand Effect predictably ensued. Multiple people — author John Scalzi, for instance — wrote about Fodera's bumptious legal threat, and the Daily Dot article probably got several orders of magnitude more traffic than it otherwise would have.
Though Fodera works "in the legal profession" and has "taught college courses," he does not appear to have a firm grasp of the subject matter.
First, Fodera thinks that the Daily Dot article is defamatory. It isn't. The article quotes things he wrote on the internet. It links to his original text so that the readers can judge for themselves. Fodera seems to think that the Dot article wrongly paraphrases or selectively quotes him. That's a tendentious and unpersuasive reading. Take, for instance, how the Dot quoted and paraphrased him in his dog analogy:
He calls Kowal, who is a Hugo-award-winning author, "an unperson… no one you should have heard of." Then he goes on to compare her to an aggressive dog:
“Oh, I know she has no power over me. Still, I get agitated when I think about her. There was a lot of good I could have done for SFWA, and she was a primary factor in my not being able to do it… In a way, it's like my reaction to dogs… My brain kept saying 'it's a service dog; they're well-trained; he won't hurt you,' but my body wanted nothing more than to dump my bowels and flee…”
But the Dot directly links to Fodera's own words. The Dot description and partial quote is fair and accurate. And the readers can determine that for themselves by following the link.
Is it possible for misquoting someone to constitute defamation? Yes. But the bar is set very high. In Masson v. New Yorker Magazine, the United States Supreme Court examined whether fabricating quotes and attributing them to an interviewee could be defamatory. The court applied the familiar "gist" or "sting" doctrine, saying that misquotes are only "false" for defamation purposes if they materially change the meaning of the quote:
We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan, 376 U. S., at 279-280, and Gertz v. Robert Welch, Inc., supra, at 342, unless the alteration results in a material change in the meaning conveyed by the statement. The use of quotations to attribute words not in fact spoken bears in a most important way on that inquiry, but it is not dispositive in every case.
Here, the Dot has not materially changed the meaning of Fodera's words. Frankly I don't think they've changed the meaning at all. Moreover, they've linked the words so the reader can review them directly. The Supreme Court's discussion of misquotes was premised in part on the notion that the misquote misleads the reader and gives them no notice that the quote might not be exactly what the speaker said; the Dot's article serves up a way for the reader to read the underlying words if the paraphrase or partial quote interests them. Courts increasingly recognize that linking to one's sources for a challenged statement makes it less likely that it will be treated as defamatory.
Fodera's claim of defamation therefore appears specious.
Second, Fodera appears confident that if the Dot article is defamatory (and it isn't), then anyone who merely links to it is a participant in defamation. That confidence is misplaced; it's not clear whether Fodera is ignorant of the law or merely argumentative about it. While not firmly established in every jurisdiction, the emerging trend is for courts to rule that merely linking to defamatory content does not republish it for defamation purposes. Eric Goldman has good coverage of this issue.
New York, regrettably, has only a mediocre anti-SLAPP statute that wouldn't be of assistance if Fodera is foolish enough to follow up his threats with a lawsuit. But as the sad case of Rakofsky v. The Internet demonstrates, New York judges are still prepared to dismiss frivolous and censorious lawsuits. Moreover, any lawsuit would be an extinction-level event for Fodera's reputation and credibility in the publishing industry, as it ought to be. I would not hesitate to light the Popehat Signal to find pro bono assistance for anyone Fodera menaces.
It's banal to be a trash-talking blowhard on the internet. Fodera could have gotten away with that — there are so many blusterers, and so little time to care about them. But Fodera has transformed himself into something else, something more iconic: the big talker who can dish it out but can't take it. Nobody respects that person. Nobody should. Fodera strikes me as a sad and stunted person, lashing out at someone for holding a mirror up to him.
I sent Mr. Fodera an email seeking comment, and asking for responses to some specific questions, but have not heard back as of the time of this writing.
Dr. Nicholas Weaver is an expert on network security issues. The media frequently seeks him out for input on stories involving the intersection of criminal justice and computer security, like Silk Road and leak investigations. Fair disclosure: he's also an online friend and an expert on one of my cases.
SlashGear is an also-ran tech site that rewrites stories badly.
Case in point: SlashGear took this story from Krebs On Security about criminal charges against Bitcoin traders in Florida. Dr. Weaver was quoted as an expert in that story:
Nicholas Weaver, a researcher at the International Computer Science Institute (ICSI) and at the University of California, Berkeley and keen follower of Bitcoin-related news, said he is unaware of another case in which state law has been used against a Bitcoin vendor. According to Weaver, the Florida case is significant because localbitcoins.com is among the last remaining places that Americans can use to purchase Bitcoins anonymously.
“The biggest problem that Bitcoin faces is actually self-imposed, because it’s always hard to buy Bitcoins,” Weaver said. “The reason is that Bitcoin transactions are irreversible, and therefore any purchase of Bitcoins must be made with something irreversible — namely cash. And that means you either have to wait several days for the wire transfer or bank transfer to go through, or if you want to buy them quickly you pay with cash through a site like localbitcoins.com.”
But when Bittany Hillen penned an awkwardly-worded and uninformative summary of the story for SlashGear, she turned Dr. Weaver from a quoted expert to a criminal defendant:
Yesterday, Florida law enforcement announced the arrests and criminal charges against three individuals under anti-money laundering laws: Michell Abner Espinoza, Pascal Reid, and Nicholas Weaver.
Dr. Weaver captured a screenshot in case SlashGear tries to memory-hole this. He should feel happy he didn't give a quote about the Woody Allen case, I guess.
Dr. Weaver isn't the suing type. But, hypothetically, could he sue for defamation? Sure.
publication of a statement of fact
that is false,
has a natural tendency to injure or which causes "special damage," and
the defendant's fault in publishing the statement amounted to at least negligence.
Here, SlashGear and Hillen published a false statement of fact about Dr. Weaver — that he had been charged with a crime. The publication was unprivileged, meaning that it was not immunized from liability by statute (for instance, things you say as a witness in court, or in pleadings filed in court, are generally privileged from liability). Accusing some of being charged with a crime is the sort of thing that has a natural tendency to injure, which is why it is often categorizes as "libel per se" — which merely means that the plaintiff doesn't have to prove that he or she suffered damage to reputation, and gets at least nominal damages without such proof.7 Dr. Weaver probably couldn't prove actual or special damages to his reputation — it's doubtful that anyone gives a shit what a clumsy SlashGear rewrite says. But he could get at least nominal damages because of the nature of the accusation.
That leaves us with the question of fault. As I explained in the context of the Crystal Cox case, at least if the issue being discussed is a public one, a defamation claim always requires proof of some level of fault on the part of the defendant. The level of fault depends on whether the plaintiff is a mere private figure (in which case the plaintiff may only need to prove that the defendant got the story wrong out of negligence) or a public figure (in which case the plaintiff would need to prove actual malice, meaning knowledge that the story was false or reckless disregard to its truth or falsity.) There are complexities and gradations; people can be public figures for limited purposes.
Here, the transformation of Dr. Weaver from respected expert to criminal defendant is a result of an incompetent rewrite of a news story. That's at least negligence. If Dr. Weaver is treated as a private figure he would prevail. But since he's frequently quoted in the news on stories like this, he may well be treated as a limited purpose public figure in the context of coverage of network security issues in the news. So the question is probably whether an incompetent rewrite of a story rises to the level of reckless disregard of the truth as required by the actual malice standard. The answer is almost certainly not. "Reckless disregard" requires more than incompetence; it requires conscious disregard of doubt. Here there's no indication that anyone consciously regarded or disregarded anything.
So: Dr. Weaver probably can't prove the requisite fault against SlashGear and Hillen, even if he wanted to. They live to promote shitty rewrites another day. Fortunately for Dr. Weaver it's difficult to imagine anyone taking SlashGear seriously enough for their incompetence to hurt his reputation.
Remember: just because something is written in a "story" by a "journalist" on a well-trafficked website, that doesn't mean it's anything other than incompetent drivel.
Edited to add SlashGear corrected the story to remove the reference to Dr. Weaver as a defendant, but as of this writing has not offered any retraction or apology. Classy.
Remember Miami Heat owner Ranaan Katz? He's the easily offended fellow who goes around suing people because there's a mildly unflattering picture of him on the internet. Previously I wrote about how he sued a blogger who was relentlessly critical of him, threatened to sue the blogger's lawyers — including First Amendment badass Marc Randazza — for representing her, and eventually convinced a Florida judge of questionable judgment to issue a broad, unprincipled, and unconstitutional prior restraint against blogging negatively about Katz.
Sometimes the bad guys win, I said after that ludicrous injunction. But there's another apt cliche — it ain't over 'till it's over.
Yesterday the blogger, represented on appeal by Marc Randazza and Jeffrey Crockett, won on appeal. Their victory was won in part by the hard work of Darren Spielman and Robert Kain in the trial court. The Third District Court of Appeal for Florida issued a broad and helpful opinion soundly rebuking the trial court for its prior restraint injunction.
I've been talking about prior restraint in the context of the Roger Shuler story. The concept, at its heart, is that the law (both constitutional doctrine and the common law of most states) allows a court to punish some speech after it happens, but with very few exceptions doesn't allow injunctions prohibiting speech in advance. The Florida court was blunt about the impact of Florida law:
Injunctive relief is not available to prohibit the making of defamatory or libelous statements. See, e.g., Vrasic v. Leibel, 106 So. 3d 485, 486 (Fla. 4th DCA 2013). A temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns. Id.
The court noted a Florida exception — prior restraint might be permitted when the speech at issue is not just defamatory, but also constitutes a business tort like interference with business relationships. You can see how that could become the exception that swallows the prior restraint rule when the censorious plaintiff is a businessperson like Raanan Katz. Fortunately the court here demanded more than allegations; it demanded proof of interference with business relationships from the blogger's insults, and found that Katz had provided none:
However, as in Murtagh, the record before us fails to support an inference that Ms. Chevaldina’s blogs are having a deleterious effect upon prospective tenants. The temporary injunction should have been denied for a failure to show with reasonable certainty the elements of tortious interference, as there was no evidence of unjustified interactions with specific parties known to be involved, or likely to be involved, in an advantageous business or contractual relationship with the appellees.
(By the way, it's not clear to me at all that this Florida doctrine of "prior restraint is acceptable if you associate it with another tort in addition to defamation" meets constitutional muster, but this decision shows a court requiring actual proof of harm, which is a good thing.)
Moreover, the Florida court also found that the injunction below was overbroad — that is, it swept far more speech than what could be arguably defamatory, and prohibited far more than the rare cases permitting prior restraint have allowed:
The injunction under review prohibits Ms. Chevaldina from: “directly or indirectly interfering in person, orally, in written form or via any blogs or other material posted on the internet or in any media with Plaintiffs’ advantageous or contractual business relationships”; and “directly or indirectly publishing any blogs or any other written or spoken matter calculated to defame, tortuously interfere with, invade the privacy of, or otherwise cause harm to Plaintiffs.” This injunction improperly burdens Ms. Chevaldina’s speech more than necessary, attempts to enjoin future defamation, and fails to put Ms. Chevaldina on notice as to what she may or may not do under the injunction.
That language is key. As I said before, one of the main flaws with the unprincipled prior restraint order the trial court issued was that it was impossible for the blogger to determine what speech was prohibited, and the order effectively prohibited even truthful negative speech about Katz.
The court also overturned the injunction against trespass and stalking, finding that Katz had not submitted evidence of such activities, and rejecting the notion that blogging is "cyberstalking":
The appellees argue that Ms. Chevaldina’s blog posts constituted “cyberstalking” and therefore provided “incidents of violence,” i.e., stalking, as to justify an injunction pursuant to section 784.046. However, the appellees failed to introduce evidence that specific blog posts were being used “to communicate, or to cause to be communicated, words, images, or language . . . directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.”
This part of the ruling is important because overbroad notions of "cyberstalking" and "cyberbullying" are now a primary front in the war between free speech and censorship; it's common for censors to argue that unwelcome online speech about someone should be treated like repeated unwelcome communications to the person.
Finally, the Florida court ended with a helpful flourish, putting blogging into the the context of classic rhetorical tropes of free speech analysis:
Angry social media postings are now common. Jilted lovers, jilted tenants, and attention-seeking bloggers spew their anger into fiber-optic cables and cyberspace. But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk in front of an auto dealer that proclaimed, “DON’T BUY HERE! ONLY LEMONS FROM THESE CROOKS!” Existing and prospective customers of the auto dealership considering such a poster made up their minds based on their own experience and research. If and when a hypothetical complainant with the poster walked into the showroom and harangued individual customers, or threatened violence, however, the previously-protected opinion crossed the border into the land of trespass, business interference, and amenability to tailored injunctive relief. The same well-developed body of law allows the complaining blogger to complain, with liability for money damages for defamation if the complaints are untruthful and satisfy the elements of that cause of action. Injunctive relief to prohibit such complaints is another matter altogether.
This is exactly right. Censors attempt to treat blogging as something substantively different that takes it outside classic free speech protections, but there is nothing new under the sun, and blogging gets the same protection as other speech.
This is a huge and embarrassing defeat for the thin-skinned and entitled Raanan Katz and his aggressively censorious lawyers, and a huge victory for Marc, Jeffrey, Darren, Robert, and free speech. Well done. DON'T SUE ME RAANAN.