Various journalists are claiming they have seen a video of Toronto Mayor Rob Ford smoking crack.

This led to the most darling legal threat ever from a lawyer named Dennis Morris — who has represented Ford for some time — to Gawker:

Update: We've received an email from Dennis Morris, a gentleman with a hotmail.com email address purporting to be Ford's attorney. Here is the message. We haven't corrected its formatting.

Greetings;I am a lawyer,and have been contacted by Mayor Ford's office in reference to your indicating you will post a photo of Mayor Ford smoking crack cocaine. Mayor Ford denies such took place,and if such posting occurs,it is false and defamatory,and you will be held legally accountable.In reference to the photo,you wish to publish, Mayor Ford has his photo taken daily,sometimes with others.

If the person you mention is now deceased,it is sad,regardless of his alleged background.

Please govern yourself accordingly.

Dennis Morris.

This is delightful, like that video of the kitten freaking out when it sees a lizard.

First, nobody ever governed themselves accordingly based on a threat from a hotmail account. Second, are you using some sort of comma-based operating system? Third, what the fuck are you talking about?

This sets a high bar.

I'm in trial preparation mode, so this will be brief.

A publisher in India called OMICS Publishing Group has threatened to sue a blogger named Jeffrey Beal, who runs a blog called Scholarly Open Access. Beal critiques open-access publishing venues, and and ran a post asserting that OMICS engages in spamming and bait-and-switch. OMICS' threat would be mundane, except that its lawyer, Ashok Ram Kumar of the Indian firm IP Markets, has chosen to be so very ridiculous. He's threatening to sue for $1 billion, and to seek criminal penalties in India.

In India, Section 66A of the Information Technology Act makes it illegal to use a computer to publish "any information that is grossly offensive or has menacing character" or to publish false information. The punishment can be as much as three years in prison.

Lawyer, please.

Mr. Beal has little to fear from civil or criminal proceedings in India unless he wants to travel there.

First, if OMICS gets a civil judgment against him from India, they won't be able to enforce it here. The SPEECH Act prohibits any federal or state court in the United States from recognizing or enforcing a foreign judgment for defamation unless (1) the judgment creditor can prove that the foreign court offers equivalent protections for free speech as the defendant would have enjoyed in United States courts under the First Amendment, or (2) the judgment creditor can prove he or she would have prevailed even under the stricter standards in the United States.

Second, if OMICS seeks criminal charges against Mr. Beall in India, they won't be able to extradite him there. Like most extradition treaties, the treaty between the United States and India requires dual criminality — that is, that the offense is a crime in both countries. Hurting fee-fees isn't a crime in the United States. Moreover, under these circumstances, the chance that the U.S. Departments of State or Justice would cooperate with extradition requests is effectively zero.

So. OMICS can sue in the United States. If they do so, they'll have to satisfy their burden under U.S. law — for instance, by showing that Mr. Beall made provably false statements of fact. Attorney Kumar's bluster does not encourage confidence that they will be able to do so:

The rambling, six-page letter argues that Mr. Beall's blog is "ridiculous, baseless, impertinent," and "smacks of literal unprofessionalism and arrogance." The letter also accuses Mr. Beall of racial discrimination and attempting to "strangle the culture of open access publications."

"All the allegation that you have mentioned in your blog are nothing more than fantastic figment of your imagination by you and the purpose of writing this blog seems to be a deliberate attempt to defame our client," the letter reads. "Our client perceive the blog as mindless rattle of a incoherent person and please be assured that our client has taken a very serious note of the language, tone, and tenure adopted by you as well as the criminal acts of putting the same on the Internet."

Let us know how that works out for you, Mr. Kumar. Remember: you can't say "all the publishing credibility of COMIC SANS" without OMICS.

Scott Bloch used to be a deputy director to the Department of Justice's Task Force for Faith-based and Community Initiatives under President George W. Bush and a Special Counsel at the United States Office of Special Counsel. Now he's a defendant in a federal criminal case, and has pleaded guilty to a misdemeanor for approving a "seven level wipe" on certain Office of Special Counsel computers, and now faces sentencing. This represented a milder charge than ones the government previously pursued: the feds charged him initially with contempt of Congress but abandoned that charge after Bloch was allowed to withdraw a guilty plea to it.

In addition to all that, it appears that Scott Bloch is a censorious thug.

Empty Wheel — which has been following Bloch's prosecution closely — has a post describing how Bloch has threatened bloggers writing about his case. Empty Wheel attaches and quotes a letter on Scott Bloch's own law firm letterhead. It includes the following language:

I write to demand that you remove these articles and blogs about me and my time as Special Counsel immediately. This is harmful to my professional reputation as a lawyer and you are not commenting on any public matters that are current. The prior legal defense fund is defunct and has not been active for over two years. Your demeaning and personal attacks impute to me qualities that tend to injure me in my business of representing contractors. Your website is dedicate [sic] to them and therefore you are targeting my business in Washington, D.C. intentionally, and my residence in Virginia, from where I draw some of my clients.

If you choose to ignore this and not remove the materials from your internet site and blogs and all caches, I will be forced to sue for an injunction and to seek damages. As long as the article remains on your website, you are publishing it. In addition, you are publishing it in various fora, including in Virginia and Washington D.C. where I represent employees and federal employees [sic] Continuing publication also subjects you to Virginia jurisdiction as long as the article remains on the web. I will institute an action in Virginia and in Washington D.C. against you for defamation and actual malice, together with damages and punitive damages.1 I will also seek damages for civil conspiracy to harm my business, and Virginia courts and juries have proved to be very protective of one’s business reputation when gratuitously harmed by publications. If I determine through discovery that you have worked with others to do this, I will join them as well. (emphasis added)

Were it not a vexatious attempt to chill free speech, Bloch's letter would be comical because it is so surpassingly ridiculous. First, Bloch does not specify which specific statements in the blog posts are false and defamatory. As I often say, vagueness in a defamation threat is the hallmark of meritless thuggery. Second, the assertion that Bloch's federal case — the prosecution of a former Department of Justice and Office of Special Counsel lawyer — is not a "public mater" that is "current" is freakishly frivolous. Third, the demand that bloggers remove all materials — not just specified allegedly false statements — is legally unsupportable and a reliable tell of censorious bullying, not merit. Fourth, the statement "As long as the article remains on your website, you are publishing it" is at best a highly questionable assertion of law. Virginia will probably follow the Single Publication Rule, and the District of Columbia definitely follows it; that rule provides that the statute of limitations for a defamation suit begins to run when a statement is first published, even if it remains on the internet thereafter.

Bloch's letter has all of the signs of bullying and none of the signs of truth. Empty Wheel notes that he has not threatened a larger blogger with a wider audience, but smaller blogs — perhaps ones more easily cowed.

I hope that someone finds a way to put this threat before the judge in Bloch's case to consider when he is sentenced.

The Streisand Effect is one possible bad consequence of a legal threat designed to remove content from the internet.

But it's not the only possible bad consequence.

Battlefoam makes storage containers for miniatures used in wargaming. If you don't know what that means already you'll just be irritated if you try to find out, so don't bother. Battlefoam's exec Romeo Filip was angry at some things someone wrote at a site called The Blood of Kittens Network. That site is "devoted to spreading a heritical understanding of the Warhammer 40k universe to neophytes and devotees alike." Again, if you don't know what that means, you very likely don't want to know. Just nod your head and move along.

Anyway, Battlefoam and Filip got some Arizona lawyers to write a very blustery cease and desist letter. It's not the worst cease-and-desist I've ever seen — it does some things to avoid the Streisand Effect, like specifying particular statements that Battlefoam thinks are false — but its language and demands are extravagant. It also offers a short drop-dead date for capitulation.

Lawyers offer short deadlines hoping to convey seriousness and determination. Sometimes it works. Other times, it conveys "there's no point in negotiating with these people."

As followers of The Oatmeal saga will recall, a subject of blustering legal threats need not stay on the defensive; there are offensive options as well. That's exactly the approach Blood of Kittens and its owner, Nicolas Hayden, took. They siezed the initiative and filed a strong declaratory relief action in Northern California, seeking a court determination that the posts about Battlefoam and Filip are protected by the First Amendment. They are being represented pro bono by First Amendment badass Marc Randazza and his colleague Gil Sperlein, also a notable First Amendment practitioner.

Now, unless Battlefoam can get the action dismissed or moved, Blood of Kittens has chosen the forum, the time, and the framework of the litigation, and is represented by two exceptional First Amendment practitioners.

Had Battlefoam's lawyers written a less blustery, less demanding letter, this might not have happened. They could have written a polite but firm letter saying they wanted to discuss resolution of concerns about false statements. They could have avoided purple prose and demands for things they could never get in court. Then Hayden might not have been able to attract two of the nation's best defamation defense attorneys to work for him for free. He might not have attracted anyone to file a declaratory relief suit, and indeed the grounds for such a suit (the clearly presented immediate controversy) might have been unclear.

But Battlefoam's lawyers decided to please their client with a take that type of letter.

Hey guys. Was it worth it?

Edited to add: Thanks to a commenter, I see that Romeo Filip did a podcast yesterday. At about the 60 minute mark he talks at length about the litigation, demonstrating that he doesn't understand declaratory relief, attorney fees, or the law. Plus, in a case in which he says it is defamatory to say he physically assaults critics, he shrewdly jokes (Kind of — I think) about punching critics in the face. Genius. Sheer genius. I presume his attorneys didn't know he was making their job so much more difficult. If he has meritorious claims — if Blood of Kittens posted false statements of fact with the requisite intent — he just significantly reduced his chance of winning. Clients.

There are many rules governing sensible protection of your company's online reputation. The first is simple, if vague: to quote Wil Wheaton, don't be a dick.

If you've been a dick, there's no need to despair. Everybody has a bad day now and then, and the internet is basically a big old bag of dicks, so your dickery may quickly be forgotten. Redemption is within your reach.

Unless, that is, you double down, and triple down, and quadruple down.

"Doubling down" means that, when called out for being a dick, you retaliate by being even more of a dick. The infamous Charles Carreon doubled, tripled, and quadrupled down in his dispute with The Oatmeal and with a satirical blogger. Paul Christoforo doubled down. Craig Brittain of "Is Anybody Down?" doubled down. Ranaan Katz doubled down.

When you double, triple, and quadruple down on online dickery, you place yourself beyond easy reputational redemption, and instead face the full force of the Streisand Effect.

Illinois bus company Suburban Express learned this lesson over the past week. But even though they engaged in online dickery, and even though they doubled down, having caught a glimpse of the Streisand Effect, they are now retreating furiously from the precipice and avoiding the fatal triple- and quadruple-down. But has their change of strategy come soon enough?

Continue Reading »

Some legal threats are so very foolish that they prompt me to look around suspiciously, wondering if I am being punked.

Take this one: a researcher thinks that that he can bring civil and criminal charges against the proprietors of a web site for their report about him, even though he concedes the report was true, because of the web site's name.

Continue Reading »

Patrick Frey, also known as Patterico, has been living under the cloud of a frivolous, censorious, and thoroughly contemptible SLAPP suit seeking to chill his First Amendment rights.

Today he won.

Background

Since last year it's been my privilege to work alongside the formidable Ron Coleman to defend Patrick pro bono against the federal lawsuit Nadia Naffe filed.

Ron and I filed motions seeking to dismiss Nafe's original federal complaint. In December United States District Court Judge George Wu granted our motion to dismiss, but without prejudice — that is, he gave Naffe once chance to amend to see if she could state a valid claim.

We moved to dismiss her amended complaint on a variety of theories. Today we won. Judge Wu's tentative ruling with the meat of his decision is here, and his order of today confirming his tentative is here.

The Issues and The Ruling

I'm not going to explain the legal issues at length. I attached all the pleadings from the first round of briefing before, and the pleadings this time are below. If you want to get a sense of the case, I recommend reading our anti-SLAPP motion, our Motion to Dismiss under Rule 12(b)(6), and Judge Wu's order.

In brief: Naffe sued Frey for a violation of civil rights by the state under 28 U.S.C. Section 1983 (on the frankly ridiculous and disingenuous theory that he blogs as a Deputy District Attorney rather than as a private citizen), invasion of privacy through public disclosure (because Frey published on his blog deposition transcripts that were available in public court records online), false light invasion of privacy, defamation, intentional infliction of emotional distress, and negligence. In her amended complaint she sued the County of Los Angeles on a theory of negligent supervision. She originally sued Patrick's wife for no discernible reason, and sued the former District Attorney of the County; this time it was just Patrick and the County. She had two theories of why she could be in federal court: because there was a federal question (her Section 1983 claim) and because there was diversity of citizenship (she's in Massachusetts, Frey's in California; diversity requires different states and at least $75,000 in damages).

We filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) (which argues, essentially, that even if everything in the complaint were true, she hasn't described a legal wrong), an anti-SLAPP motion under California law (arguing that her state law claims were attempts to censor speech, and that she could not succeed on them), a motion to dismiss her state law claims under Rule 12(b)(1) (arguing that she can't show $75,000 in damages, as is required for federal diversity jurisdiction, so there's no jurisdiction over the state law claims if her Section 1983 claim fails), and a motion to force her to post a bond under California law (in California, you can make a plaintiff from another state post a bond to cover costs if you win).

Federal judges tend to be conservative with jurisdiction: that is, they take only cases they must, and address only issues they must. Judge Wu ruled that (1) Naffe can't succeed on her Section 1983 claim — her only federal claim — because she didn't state facts showing that Patrick was a state actor when he was blogging as "Patterico", and (2) he wouldn't exercise jurisdiction over the state law claims, because Naffe failed to show that she suffered at least $75,000 in damages, as required for diversity jurisdiction. Based on those rulings, the judge didn't need to reach the anti-SLAPP motion or the bond motion.

The Result

The result: the Section 1983 civil rights claim is dismissed with prejudice, meaning Naffe can't re-file it. The state law claims are dismissed, but Naffe could re-file them in state court if she wanted. If she does we will file an anti-SLAPP motion there as well — and a motion for sanctions against both her and her attorneys. Naffe has already filed a notice of appeal, suggesting she may pursue an appeal in the Ninth Circuit rather than re-filing in state court. Bring it.

The Conduct of the Case

One of the most frustrating things about the case was that Naffe and her attorneys misrepresented the content of relevant blog and Twitter posts to the Court to suggest that Patrick was purporting to blog in his official capacity as a Deputy District Attorney, when in fact the documents showed the exact opposite. The best summary of what I mean is at pages 9-11 of this brief and page 2-3 of this brief. Even though we made that point very strongly, Naffe — tellingly — did not respond at all in her opposition briefs. It's rather unusual not to answer an accusation that you've attempted to mislead a federal judge Judge Wu noticed it as well. We didn't raise the issue of sanctions, but he did on his own. In footnote 5 he noted:

In paragraph 39 of the FAC [First Amended Complaint] Plaintiff quotes Frey as saying the following: "You owe [O'Keefe] @gamesokeefeiii a retraction. A big one. You'd better issue it promptly. [A threat made as a Deputy District Attorney]." FAC 39. The Court may consider the text of Frey's actual statement in connection with a Rule 12(b)(6) challenge. See Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006), Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001.). Notwithstanding Plaintiff's use of quotation marks, the language "[A threat made as a Deputy District Attorney]" does not appear in Frey's actual comment. See Frey Decl. (Docket No. 40), Exh. KK, at 266. The Court would consider issuing sanctions against Plaintiff and/or her attorneys for the contents of paragraph 39. [emphasis added]

And there's footnote 7. Noting that Frey wrote a tweet saying "My first task is learning what criminal statutes, if any, you have admitted violating," Judge Wu wrote:

In her Opposition brief, Plaintiff characterizes this as "Frey issu[ing] a direct threat against Ms. Naffe with Frey stating that he intended to investigate Ms. Naffe for possible criminal misconduct." Docket No. 53, at 11:18-21. Again, sanctions may very well be in play for Plaintiff's (and/or her counsel's) willingness to play fast-and-loose with the language that is actually at issue here. [Emphasis added]

Though Judge Wu did not ultimately award sanctions, I look forward to quoting those words on appeal or in a state court motion for sanctions if Naffe re-files there.

Closing Thoughts

It's been an honor to represent Patrick pro bono. It's been a privilege to work with and learn from Ron Coleman. I appreciate the opportunity.

Observing commentary on the case has been . . . interesting. I'd divide the coverage into three camps. There are people who are supportive of Patrick, but whose coverage really doesn't delve into the legal issues. There are the vapid and dishonest partisan hacks who attack Patrick for political reasons, and who don't address the legal issues at all. There's the greasy, demi-literate, demented Hutt who wrote an extended quasi-sexual fantasy about a mob murdering Patrick and me. Fun!

There are many people out there who support free speech, so long as it's free speech they agree with. That's not really supporting free speech. It's nice that people on the right supported Patrick's free speech — I wish they all supported vigorous political speech from the left as well. I would also have been happier if more people on the left supported Patrick — or, at least, treated the stark free speech issues presented in the case seriously. I didn't defend Patrick because I always, or usually, or even often agree with him. He's to the right of me politically, and a prosecutor (and therefore reliably wrong on criminal justice issues), and I often disagree with him. I defended him because the First Amendment that lets him speak freely lets me speak as well. I defended him because malicious, frivolous, and politically motivated lawsuits aimed at censorship make it a little more dangerous for each of us to speak. I defended him pro bono because frivolous lawsuits can effectively censor people even when they eventually fail, because the expenses of lawsuits can be ruinous.

If you are happy with this result, and if you are happy that lawyers will represent people pro bono in free speech cases, I ask this favor: next time you have the chance, stand up for the free speech of someone whose views you despise. Speak up and fight back when someone advocates censorship. Respond to the Popehat Signal, or to any of the opportunities out there to support free speech — even speech that angers you. Even if you don't like this result, or you don't like Patrick's politics, or mine, I respectfully challenge you to review the free speech issues in the case. Think about them carefully and ask yourself: could I be accused of defamation and intentional infliction of emotional distress for vigorously challenging someone with whom I disagree?

Thank you.

Appendix: Documents From This Phase Of The Case

Operative Complaint

Nadia Naffe's First Amended Complaint

Patrick's Motions

Anti-SLAPP Motion

Motion To Dismiss Under FRCP 12(b)(6)

Motion to Dismiss For Lack of Jurisdiction Under FRCP 12(b)(1)

Motion For Bond

Declarations and Exhibits

Supplemental Declarations and Exhibits

Request for Judicial Notice

Naffe's Opposition Briefs

Opposition to Motion to Dismiss Under Rule 12(b)(6)

Opposition to Anti-SLAPP Motion

Opposition to Motion to Dismiss for Lack of Jurisdiction Under FRCP 12(b)(1)

Opposition to Request for Bond

Declaration of Nadia Naffe in Support of Opposition Briefs

Patrick's Reply Briefs

Reply In Support of Motion to Dismiss Under Rule 12(b)(6)

Reply in Support of Anti-SLAPP Motion

Reply in Support of Motion to Dismiss for Lack of Jurisdiction Under FRCP 12(b)(1)

Reply In Support of Motion for Bond

Judge Wu's Ruling

Tentative Ruling

Minute Order Confirming Tentative Ruling

I say it often: vagueness in legal threats is the hallmark of meritless thuggery.

Today, let's look at a case study.

Continue Reading »

Colin Purrington made an error in judgment.

His error was this: he believed that simply because he had created something himself — specifically, a helpful guide for creating scientific posters — that it was safe to go about asking other people not to appropriate it for their own profit.

Colin was wrong. This is America, Colin. What were you thinking?

See, Colin saw that an outfit called the Consortium for Plant Biotechnology Research was using some of his language in appendices to its grant applications. Colin, as is his practice, sent a wry missive asking that they stop, with a humorous coda:

If you can cover the shipping charges, I would be grateful if you to send me the head of the person who did this.

Oh, Colin. You are too gentle for this world. We live in a world of money and laws, Colin, and laws are wielded and money is guarded by megalawfirms like Arnold & Porter. Arnold & Porter is one of the 800 pound gorillas of law — perhaps an unfair comparison, since gorillas do not generally charge $1000 per hour to throw feces. The Consortium for Plant Biotechnology Research reacted to Colin's email by calling forth Arnold & Porter in the form of attorney David P. Metzger, who sent Colin a very threatening letter. The upshot of the letter was that the Consortium had copyrighted the language in question in 2005, and that unless Colin took it down from his website, he would be facing a lawsuit, statutory damages of up to $150,000, court costs, and attorney fees — Arnold & Porter-sized attorney fees. Mr. Metzger was also shocked, shocked, to the point of pearl-clutching over Colin's humorous salvo:

Finally, I wish to express CPBR's concern with your statement in the Purrington E-mail: "I would be grateful if you to send me (sic) the head of the person who did this." This language was interpreted by CPBR's staff as a physical threat against their personal safety. Should you make any further similar threats, CPBR staff will have no choice but to contact authorities to protect themselves.

This all seemed a bit unfair to Colin. I'll let The Chronicle of Higher Education explain why:

In the not-at-all-friendly letter sent to Purrington, the consortium’s lawyer explained that the material was created by the consortium itself in 2005. That would be a very strong and persuasive point if Purrington hadn’t posted his guide as early as 2001, a fact that can be verified by going to the date-stamped Internet archive.

. . .

He started writing the guide back in 1997 as part of a class he was teaching, made it available to his students, and later posted it for anybody who wanted to use it.

Oh Colin. Facts are facts, justice is justice, but in America, money is money. The Consortium has hired Arnold & Porter, and they can threaten whomever they want, the facts of it be damned.

Fortunately Colin seems to be a fighter and has hired counsel. The Consortium? It's not yet clear. I wrote Mr. Metzger asking for a comment. Somehow I think he might not write back, based on his response to the Chronicle:

The consortium’s lawyer, David Metzger, also hung up on me. In a follow-up e-mail, he said he was abiding by his client’s wishes.

No doubt.

Here's the thing about sending blustery threatening letters for clients: sometimes, to the regret of attorney and client, they backfire. This is a good thing. In the American legal system, clients and their lawyers can credibly threaten to inflict hundreds of thousands of dollars of costs and years of misery on their enemies without regard to whether they are in the right. The internet — and the Streisand Effect — can help counter that injustice. The internet can help impose reputational consequences upon litigants and their lawyers when they make unjust and bumptious threats. Are you doing your part?

Perhaps the Consortium has some innocent explanation for its conduct. Perhaps it can prove that it was the originator of the language in question and Colin somehow misappropriated it years earlier and posted it without their knowledge. Perhaps, against all appearances, the Consortium and their attorney conducted some sort of due diligence before making extravagant legal threats against Colin. Perhaps, against all appearances, some tender pussywillow at the Consortium actually was intimidated by Colin's obvious joke, and the closing threat in Metzger's letter is not merely the parting shot of a shameless prat.

On the other hand, perhaps it would have been much more prudent for the Consortium to have handled this situation some other way. Maybe the government agencies that give grants to the Consortium will have a viewpoint.

Some time ago, one Raphael Golb got in trouble for harassing people about the Dead Sea Scrolls. Everyone, I suppose, needs a hobby. Golb was convicted for actions including sending emails maliciously impersonating Yeshiva University vice provost Lawrence H. Schiffman, creating fake identities and sock puppets to promote his father's research, and generally acting like a dick.

In January Golb's conviction was affirmed. His behavior is odd.

But the behavior of a lawyer purporting to act on his victim's behalf is even odder.

Continue Reading »

Last week, I described my affectionate correspondence with Ken Matherne of the Global Wildlife Center of Folsom, Louisiana. Mr. Matherne — incensed about a 2010 post I wrote about his defamation suit against a satirical website, informed me that, among other things, (a) I am libel, (b) his airplane is only 10k per hour, (c) his executives has all authority to go until all is done, (d) he doesn't care if I have boyfriends on the side, (e) he is prepared to dp me and have my spouses in dispositions, and so forth.

Mike Masnick at Techdirt picked up on the story and wrote about it. Apparently this did not please Mr. Matherne. Today I see from Techdirt that Mr. Matherne has been writing them, as well. He still has a way with words:

you are saved and wait for me!

What state are you registered in? And if any of your two companies are affiliated – we should start to proceed. My daughter asked me not to last night. But after you new post — I am coming!

Law is the Law !

So take my foundation down out of your harmful and malice posts or I will spend the next 20 years of my life, with every appeal, and every court to see justice.

I think the world would be a better place if more people experienced Mr. Matherne's wisdom. Therefore I declare a Popehat meme-poster contest. Create images incorporating Mr. Matherene's best phrases.

I will choose a winner by some method dictated by my taste for autocracy, and will donate $100 in the winner's name to a charity that supports the First Amendment. I will also send the winner a copy of Greg Lukianoff's excellent book "Unlearning Liberty," which I shall autograph despite not having written it, because I am mentioned in it. I will also draw a picture of a pony on the flyleaf, or have my six-year-old assistant do so.

All that can be yours.

Entry by tipster Pete. Thanks, Pete!

Back in 2010, I wrote a post about a frivolous lawsuit filed by The Global Wildlife Center of Folsom, Louisiana against the satirical web site Hammond Action News in retaliation for an obviously satirical post about killer giraffes. Global Wildlife Center lost, and the case got some attention from blogs concerned with online free speech.

Today, I received a legal threat purporting to be from Ken Matherne, owner of the Global Wildlife Center. Using people smarter than I (a large set), I confirmed the email came from the Global Wildlife domain. In the email, Mr. Matherne threatens me with litigation and attempts to insult me. It has to be read to be believed.

Continue Reading »

Yesterday I discussed the strange case of "On Press, Inc.", a name used to make feckless and frequently incoherent threats against people who quoted "poet" "Shaun Shane."

Investigation results to date suggest that the "On Press, Inc." staffed by illiterates and making stupid threats is not — repeat not — the California corporation of that name. Moreover, though evidence suggests that the people using that name are in Texas, there is no record of such a corporation in Texas. Doing business under a false representation of corporate status is illegal in almost every jurisdiction.

On Twitter, I have repeatedly asked the threat accounts of "On Press, Inc." to identify the state in which they are incorporated, or identify the attorney representing them. I've received only misspelled abuse in response.

Yesterday I wrote an email address an apparent representative of "On Press, Inc." had used to leave a comment elsewhere. I've received no response. Here's the email:

Dear "On Press, Inc.":

I am a former federal prosecutor, a member of the First Amendment Lawyers Association, and a blogger at www.Popehat.com on issues including free speech, bogus legal threats, and online fraud.

I have been following your legal threats and insults regarding poems by "Shaun Shane." I have written about your threats already, and will be writing more. I have some questions.

1. Is "On Press, Inc." actually a corporation? If so in what state is it incorporated?

2. Is "On Press, Inc." represented by an attorney in connection with your threats, or in connection with your claims to the copyright in the work of "Shaun Shane"? If so, who is that lawyer?

3. Will you share any documentation showing that "On Press, Inc." is the holder of the "Shaun Shane" copyright?

4. Who — that is, what human being — is operating the various "On Press, Inc." twitter accounts and making these threats?

5. Did "On Press, Inc." leave the comments by "Tammy" and "Michael Bradshaw" described in this post? http://www.techdirt.com/articles/20130217/18381022008/attribution-troll-press-inc-now-50-less-troll-like-also-not-yelling-people-sells-more-books.shtml

6. Did anyone from "On Press, Inc." call TechDirt pretending to be an attorney?

7. [Question redacted for strategic reasons]

8. Are you willing to discuss these issues?

Thanks,

Ken White
www.popehat.com

Meanwhile, unless trolls are impersonating them, "On Press, Inc." continues to use Twitter to threaten and insult. It appears that someone at "On Press, Inc." is attempting — to the best of their just precious ability — to make it appear they have a robust team conversing amongst themselves. Tim Cushing has collected some of the tweets illuminating the bizarre result.

Meanwhile, check out the #ShaunShane hashtag to observe attempts to write non-copyright-violating poetry.

Edited to add: in the comments, Corporal Lint finds a way to make Shaun Shane's poetry more palatable:

Translated by computer into Italian, then into French, then back into English, then into Urdu, then back into English, then into Azerbaijani, and then back to English again, it becomes evocative almost haunting:

We are
more careful
when it comes
to our language
if it can
be made ​​with glass,
we know that

It's time for the Popehat signal!

Someone needs your help.

That someone is a blogger in Vermont. The blogger writes critically about an industry that — without exaggeration — is universally loathed, and with reason. He attempts to expose criminal conduct by companies operating in this inadequately regulated industry.

Recently he wrote about one particular company in the industry, setting forth evidence and documentation about their conduct. The company sent a threatening (if kind of eighth-grade-level) message through his blog, attempting falsely to tie him to a racist organization.

Later, he learned that a private investigator was talking to his friends, associates, and co-workers, and suggesting that he is associated with this racist organization. He is not.

The purpose of the private investigator is clear: to harass and intimidate the blogger into refraining from writing about this company and its operation within this justifiably despised and frequently criminal industry.

Here's what I am looking for:

1. First Amendment counsel in Vermont, in case he is pursued legally there.

2. Counsel in Vermont who might be willing to consult on a potential slander case against the private investigator and his employers. Telling people that the blogger is affiliated with a racist organization in an effort to silence him is not protected speech.

3. Anyone with a familiarity with the private investigator licensing authorities in Vermont, who might have ideas about addressing the issue.

4. People with computer forensic ability to help trace communications.

Yes, this post is very vague. That's to avoid tipping the bad guys off — for now. Sooner or later you'll hear more. If more than 1% of you disagree with my characterization of this industry I'll cut off my left nut with a spork.

As always, protecting bloggers from legal and extralegal harassment based on their First Amendment activity requires people to be generous with their time. The Popehat Signal rarely lets me down. You all rock. Please spread the work.

The hardest game on the internet is one I call "C/S/T", which is short for "Crazy, Stupid, Or Troll?" There are nuances to those categories — sometimes a troll is a performance artist, sometimes someone is not so much stupid as willfully ignorant — but the broad categories suffice.

It's such a hard game because on the internet being crazy can look very much like being stupid, and a troll can look very much like either in a quest for lulz. Occasionally someone is all three.

This week's C/S/T challenge takes us to the world of poetry. Back in the day I visited the world of poetry in an attempt to get into the world of attractive poetry-favoring women who were never in a kajillion years give me the time of day, which I had heard was adjacent.

The poet in question is one "Shaun Shane," a pseudonym. Shane is rumored to be dead, though not, as decorum and four millennia of poetic heritage would militate, of shame. If poetry is emotion recollected in tranquility, Shane's is insipidity recollected in banality. I refer particularly to his fortune-cookie-length poem "Tongues of Glass," which goes something like this:

if only
our tongues
were made
of glass

that bitch in study hall
would shut up
and I might make cheer team

Burma shave!

plotz

I'm doing the second half from memory but I think I got the gist of it.

[Aside -- very short poems can be very evocative or powerful or funny. These aren't. De gustibus pup 'n taco.]

Anyway, somebody is threatening Twitter users who quote "Shane's" poems. This someone uses the name "On Press, Inc.", fraudulently claims that "On Press, Inc." is a division of Knopf Publishing, and uses a bizarre array of duplicate Twitter accounts to spam threats. Tim Cushing at Techdirt has done an admirable piece of investigative work in a two-part story about "On Press, Inc." here and here. It's a long story, but well-told and a good illustration of internet culture.

Whoever is running the internet-threat operation under the name "On Press, Inc." has certain defining characteristics — truculence, functional illiteracy, and a grasp of law cobbled together by listening to 13-year-olds swearing at each other on Xbox Live. (Hint: if you think that anyone will ever be prosecuted for copyright infringement for quoting a poem on Twitter, you are a moron with a comic-book-level grasp of the criminal justice system. Full stop.) "On Press, Inc." insults to the best of its bless-your-heart ability, threatens civil suits and criminal prosecution against people who quote "Tongues of Glass" on Twitter, apparently sends DMCA notices, and generally asses about the internet. As Tim notes, bloggers have also received abusive comments nominally by third people but possibly by the same person running the "On Pres, Inc." account.

But here's the tough part. Is "On Press, Inc." run by a very stupid person? Is it run by a crazy person? Is the user both crazy and stupid? Is the person performing to make a point about legal threats or internet culture? Is the person attempting to publicize "Shane's" work through asshattery? Is the person trying to provoke people for lulz? Now that the bizarre legal threats are being covered, how can you tell "genuine" On Press, Inc. threats from ones that are fabricated by people satirizing On Press, Inc.? For instance, I had a Twitter exchange last night with this Twitter account styled to look like the other On Press, Inc. accounts, which yielded comments like "really we have bigger fish to fry than you. Your more entertainment for us. we get a lot of laughs." (Edited to add: here, courtesy of Tim, is the exchange.) Was it "real," or a troll pretending to be On Press, Inc.? Was it a troll pretending to be a different troll? [Ultimately my instinct was that it was someone pretending -- the illiteracy was a little too consistent and on-the-nose.]

This game isn't over. I'm not ready to call C/S/T. In playing the game, I note that (1) this preexisting biography of Shaun Shane displays some of the same illiteracy as the On Press, Inc. threats, (2) the preexisting Shaun Shane Facebook fan page displays some of the same illiteracy, (3) there are "On Press, Inc." corporations registered in five states (CA, MI, IL, OH, NY) with public contact information.

I am intrigued. I'd like to play this game out. Tim Cushing has done excellent work on it already, and others are starting to join into the investigation. Come play, if you like. Let's find out who is actually behind the threats and invective.

Updated: I have communicated with the principal of the California corporation named "On Press, Inc.", who indicates he has nothing to do with this nonsense. Investigating others.

Second Update: The New York "On Press, Inc." is inactive and would therefore not be able to sue anyone.

The game's afoot.