Tagged: Legal Threats

Andrew Colton And "Boca News Now" Get In The Business of Smearing Their Own Credibility

Would you be surprised to learn that a journalist is acting like an eager censor?

You shouldn't be. First, any disturbed freak can call himself a "journalist" and any lunatic can set up a website and call it a newspaper. You can't expect people who call themselves journalists will display the judgment or professionalism of professional "mainstream" journalists. Second, you can't expect competence, honesty, decency, or professionalism from "mainstream" journalists in the first place. Third, even even "mainstream journalists" can develop a taste for censorship when criticized; it's a moral and civic failing common amongst all professions.

So we shouldn't be surprised that the guy running a "news site" called "Boca News Now" is trying, to the best of his modest abilities, to be a censor.


A Fight-For-Free-Speech Story: What The Hell Is It With Dentists?

This is a story about dentists, legal threats, and pro-bono badassery.

What the hell is the deal with censorious dentists?

There's this guy. Let's call him Bob. Bob's wife had a bad experience at a dentist. Bob set up a site complaining about the dentist. Bob learned, in this process, that the dentist had a history of threatening negative Yelp reviewers with bogus lawsuits.

There's a bad lawyer. Let's call her Bogus Betty. The dentist hired Bogus Betty, and Bogus Betty filed an application for a temporary restraining order and injunction under California's harassment law against Bob, under the theory that a gripe site about a dentist is dangerous harassment that requires a restraining order. This is the law that you use to keep your abusive ex from showing up at your door with a baseball bat, or your nutty former employee from crank-calling you 80 times a day.

Bob wasn't threatening or harassing the dentist. Bob made a web site critical of the dentist.

Bob needed help, very fast. I put out a request. The thoroughly awesome David Casey stepped up. Dave's in San Diego and Bogus Betty filed in LA County, but Dave stepped up anyway, because he believes in free speech.

Dave and Bob got the help of Adam Steinbaugh and Nicholas Weaver and put together a kick-ass brief. Dave wrote it, Adam assisted, and Nicholas acted as an expert demolishing Bogus Betty's technological arguments. Before the filing, Bogus Betty was threatening and refusing to negotiate. After receiving the filing, Bogus Betty was asking to negotiate. At the hearing, Bogus Betty asked for more time to cut a deal; the judge refused, required her to dismiss, told her there was nothing in her application warranting a restraining order, and told her not to come back with a case like that.

A beaten Bogus Betty cut a deal very satisfactory to Bob. Why am I not naming and shaming? Because Bob likes the deal and it's in his best interests and that's what I care most about. If I catch the dentist or Bogus Betty being censorious thugs again I'll drop the hammer on them in a heartbeat.

I say this over and over: the system is broken, because it allows people like this dentist and Bogus Betty to silence people like Bob by making low-risk threats and filing low-risk lawsuits. Most people can't afford to hire a lawyer to resist. The California anti-SLAPP statute is great, but it requires a capable lawyer up front.

There's only one way under the current system that people of modest means can be protected from thuggery. That way is the generosity and service of capable lawyers like David Casey and Adam Steinbaugh, as well as concerned non-lawyers like Nicholas Weaver. Thanks, gentlemen. You rock.

Will you answer the call?

We're Here, We're Snivelling Censors, Get Used To It!

Straight Pride UK is an organization that fights for the equal social and legal rights of heterosexuals and sentence fragments:

The celebration of one's heterosexuality. It is not a bigoted or intolerant thing to proclaim-it is simply stating the truth, that you are straight and not ashamed of that fact.

Straight Pride UK — which also has a Twitter presence — is concerned with heterosexuals being "silenced and abused." Now, it's perfectly reasonable to be concerned about mounting censorship in the UK, though I see no indication that heterosexuals are subjected to it more than absolutely anyone who says anything abrasive to absolutely anybody's delicate fee-fees. But you'd think that an organization concerned with "special rights" and "silencing" would not be a hair-trigger censor itself.

You'd be wrong.

UK history student Oliver Hotham wanted to learn more about Straight Pride UK and write about them, so he sent them an email describing himself as a "freelance journalist" and posed some questions. They responded. He did what any blogger would do:

About a week later they responded with an attached document with the title “press release”. I went through the questions, corrected the horrendous grammar, and organised it so it coherently answered the questions I’d posed. I also noted that two rather pointed questions I’d asked, regarding the problem of the bullying of LGBTI youth and the nature of other “pride” movements, had not been answered. I sent them an email about this, saying that I’d give them the opportunity to respond but, if they didn’t, I’d “make it clear in the article” that they avoided the questions. They didn’t get back to me for 2 days, which I thought ample time to write two sentences.

So Oliver wrote. Straight Pride UK's jimmies were rustled, and they demanded that he take the post down:

“It has been brought to my attention that you have published the email that I sent you to, you did not state this in your email request, nor you did have consent to do this.

I therefore request that you take down the article that you have placed on your blog.

You have 7 days in which to do this, failing this I shall submit a DMCA to WordPress to have it removed.”

Oliver laughed this off as very silly. What remotely rational person — straight or gay — would think that their response to a self-described journalist asking questions about their political organization would be kept private?

But Straight Pride UK did file a bogus DMCA notice to WordPress, which reflexively took Oliver's post down. Straight Pride UK redoubled its demands:

remove all references to Straight Pride UK, The Straight Forward Project, along with images, and links, from your Blog.

This is not having the impact that Straight Pride UK might have hoped for. Instead, they are encountering the Streisand Effect in an immediate and catastrophic way. Many bloggers are reprinting Oliver's post; Oliver has given his permission to do so.

Straight Pride UK is reacting . . . badly.


In fact, they are reacting in a manner that shows that they don't merely hold the completely ridiculous position that their "press release" is protected — they also think that they have a right to be free of criticism about their censorious twatwafflery.


Look, I think straights are already very well represented in the culture, even in the UK. But I don't have any problem with people who want to express pride in being straight, or people who want to express how oppressed they feel by the modern culture's tolerance of sexual diversity. Let them have their special group! But speaking as a straight guy, would it be possible to have a straight-positive organization that isn't a pack of craven socially dysfunctional nitwits? I'd hate for a stereotype to develop.

Meanwhile, below the break, per Oliver's permission, I've republished his wrongfully taken down post, as to which Straight Pride UK's DMCA assertion is patently bogus.

Edit: New Straight Pride statement added at end of post.


Rotolight Tries To Unring The Censorious Bell

Rotolight makes photography lighting systems; Den Lennie discusses and reviews them. Den Lennie posted a video review of a Rotolight product on Vimeo. Rotolight thought it was misleading and unfair. So Rotolight left comments explaining their point of view and posted a rebuttal on their website and publicized it through social media.

No, wait. That's the way a rational and honest company would handle it. No, Rotolight got the review taken down with a fraudulent DMCA copyright violation notice, as discussed here and here and here and here. Den Lennie got the takedown notice. When Lennie wrote about it, Rotolight showed up to, in effect, confess that it had made a bogus DMCA demand because it thought the review was unfair, and to assert a very stupid trademark argument:


The DMCA notice was utterly, preposterously bogus for many reasons others smarter than I have already pointed out. The DMCA doesn't even apply to trademarks (as opposed to copyright), and even if it did, a product review can name the product without violating its trademark.

Rotolight is now experiencing the Streisand Effect, and has posted a statement on its website. The statement is part apology, part justification, and part evasion. Rotolight complains that the review was inaccurate because it depicted a unit that had since been repaired to correct a problem. They apologize for a "breakdown in communication," offer to give Den Lennie's F-Stop Academy a very expensive free device, and make many of the right corporate-rehabilitation-tour noises.

But Rotolight's explanation for what happened falls far short. It claims:

In this specific case, the video was not removed for copyright infringement reasons as has been widely reported. Rotolight received external advice with respect to this particular video that it was potentially misleading and unrepresentative. This advice resulted in the only request the company has made to have a video removed from any video sharing website in the last 3 years.

This makes no sense. Is Rotolight saying that they didn't send a DMCA notice, and Vimeo is lying? If so, why don't they say so, and release what they actually sent? Otherwise, if it wasn't a copyright issue, why did Rotolight use the DMCA? If Rotolight had an objection to a review being "misleading and unrepresentative," why did they use a mechanism that required them to assert copyright infringement and affirm a statement that said "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed"? You say that you got "external advice" that the video was misleading, but carefully avoid saying you got advice to use the DMCA as a mechanism to attack it — did you or didn't you? If so, who gave you that idiotic advice? Oh — and if this was about an inaccurate review, why did Rotolight leave a comment on Den Lennie's post making a fatuous trademark argument?

Rotolight pleads with its detractors to think of its employees, saying that a bad review can hurt:

It is important to understand the damage that can be caused not just to our business, but to its hard working employees and their families, and also to the numerous other SME’s in our UK supply chain, whom we make a conscious effort to source components from in order to support our local business community, which is why we felt we needed to act.

Here's the thing, Rotolight. With all respect to Den Lennie, one review he posts on Vimeo is going to have a minor impact on your sales, particularly if you use your speech to rebut and correct it. By acting like a dishonest censorious douche, you have done greater harm to your reputation by — conservatively — three to four orders of magnitude. If your hard working employees and their families are angry, tell them to look to the Rotolight executives who made this decision and ask them: what the hell were you thinking? Why did you trash our company's reputation?

Edited to add: Commenter "guess who" provides evidence evidence casting substantial doubt on any assertion that Rotolight was ignorant of DMCA requirements.

Edited again to add: Vimeo has put the video back up. Want an idea of how awful Rotolight's judgment was? A source informs me that, prior to the takedown, the video had only 150 hits since March. This blog post alone — to say nothing of Techdirt, BoingBoing, or the others — has had 1500 so far today. That doesn't count people reading it on their feed. And it doesn't take into account the impact on Rotolight's Google results.

Third edit: I'm now allowed to mention that when I heard about this I offered Den Lennie to try to find pro bono counsel in case he needed it. Looks like he won't — Rotolight is in full retreat — but I want to thank Jason Sweet and Dan Booth of Booth Sweet LLP for stepping up and backing Den. Your rights depend on lawyers like that willing to step into the breach.

Listen, Don't Mention The Malshandir. I Mentioned It Once, But I Think I Got Away With It All Right.

Gentle readers, I write with important legal, ethical, and spiritual advice: don't say "Malshandir".

Really the core of my advice is not to name anyone or anything "Malshandir". Don't name your baby "Malshandir"; name it, I don't know, George or something. Don't name your dog "Malshandir". Don't name your macaw who rides on your shoulder as you ride your second-hand bike to the ironic t-shirt store "Malshandir." And for the love of the all-merciful God, whatever you do, don't name your pretend Elf, the non-existent avatar you use in an online game, "Malshandir", even if — and I want to make this very clear — you believe he deserves special recognition for having completed the "Fetid Slug Imbalance" quest successfully.

Fetid Slug Imbalance was dropped from the DSM-V, probably for political reasons.

Fetid Slug Imbalance was dropped from the DSM-V, probably for political reasons.

But it's not just about naming things "Malshandir." It's really not even safe to say "Malshandir." You shouldn't say "that piece of halibut was good enough for Malshandir," or "I've been having trouble with that stuff that builds up in the crevices of my groin, where I sweat a lot — what's it called? Malshandir?"

You shouldn't do these things because a guy named Thomas Freyer may sue you or have you arrested using European courts, which apparently are magic and render decisions in two hours. This, apparently, is Thomas Freyer:



We know these things because Thomas Freyer has been engaged in a furious dialogue with a web site devoted to the online fantasy game Everquest 2. That site had a profile of an EQ2 character, an Elf named "Malshandir." Mr. Freyer maintains this is VERBOTEN, because even if his domain name malshandir.com has expired, and even if he has not registered an American trademark for "Malshandir", and even if his English company "Malshandir" closed in 2010, and even if the "Malshandir" character was created on EQ2 in 2008, he has a European trademark on "Malshandir," which prevents you from calling anything "Malshandir", even a pretend Elf. Using the name "Malshandir" can have grave consequences, including but not limited to being forced to "delist your site from nameservers within the EU and reject all requests from servers and clients from the EU," a "decision from a court within 2 hours," and exposure to worrisome paradoxes, such as "BTW: I talk with a trademark lawyer. trademark attorneys doesn’t exist."

Read more about Mr. Freyer's legal acumen, and why you should fear his wrath, here.

Mr. Freyer apparently believes based on legal advice — which may or may not come from attorneys that you or I could see or hear — that if he trademarks a name for commercial purposes in Europe, then you or I may not use that name for completely unrelated non-commercial purposes in America, for instance to denote a pretend Elf. This would mean, for instance, that if someone trademarked "Buster" to sell marital aids in Oslo, you could not name your World of Warcraft Orc Buster, even if Buster is not in the actual or pretend trade of manufacturing or selling marital aids. [Note to self: develop pitch for new profession in World of Warcraft. Assign associate with lowest billable hours and least inclination to sue.]

I could explain why that is silly, but I think my head might explode. I am concerned that my head exploding could made some sound that resembles some word Mr. Freyer has trademarked in Europe, which could lead to further litigation against my estate.

So: be sensible, be prudent, and don't say "Malshandir." And whatever you do, don't engage in any sort of contest to see which of you could photoshop the most creative use of "Malshandir" for commercial or artistic use, and especially what you do don't start with templates like this.

Edited to add: Dammit, people! I explicitly told you not to do things like this, from Aaron in the comments!



Updates: All right, who did this? That's very mean to Malshandir!

Meanwhile, Mr. Freyer seems to be very angry and threatening, and thinks that an EQ2 blog can take down posts from Popehat.

Two Guys, A Cop, And A Pizza Place: How A Police Officer Threatened A Yelp Reviewer

We all know that cops are tasked to enforce criminal laws, occasionally shooting dogs or naked, confused, autistic 11-year-olds on the side of the road as circumstances require.

But did you know they enforce civil law too?

Well, at least some of them do. Some police think that it is their role to intervene in civil disputes, throwing their weight — the weight of gun belts and squad cars and the freedom to beat you senseless with a high probability of complete impunity — behind one side or the other.

That's what Joseph Grabko of Pennsylvania found out this month, when a police officer threatened him at the behest of a local pizza place.


A Statement of Support in the Event of Legal Threats Or Lawsuits

Elise Matthesen is a writer, artist, and activist. Sigrid Ellis is a writer, editor, blogger, and air traffic controller. Both are active in what I'll refer to as the fantasy and science fiction community.

Ms. Ellis gave a party at Wiscon; Ms. Matthesen attended. Ms. Matthesen experienced conduct she believed was harassment, and reported it. She later wrote a post — carried by several prominent figures in the science fiction community — about the process of reporting harassment at conventions. Ms. Ellis identified the person Ms. Matthesen reported.

Though I discuss harassment in the science fiction, fantasy, and gaming community on this blog, the purpose of this post is not to discuss that incident, or the nature of the conduct that led to the report.

Rather, I write to state my support.

As far as I know, Ms. Ellis and Ms. Matthesen have not received specific legal threats.

However, in the event that Ms. Ellis or Ms. Matthesen do receive legal threats or are subjected to litigation, I have agreed to give them my assistance in securing an effective and vigorous defense. That assistance will include the Popehat Signal. Thanks to the generosity of readers and the devotion of the community of First Amendment attorneys (including the First Amendment Lawyers Association, of which I am a member), the Popehat Signal has often been successful at pairing defendants with pro bono lawyers who have produced excellent results. I have also offered, to the extent appropriate and (depending on the jurisdiction) available, my personal assistance, which has also led to some success. Finally, I will do my part to encourage the Streisand Effect.

Does it sound like I boast? Maybe it does. Take it this way: I am utterly, unreservedly, mercilessly serious.

Conduct yourself accordingly.

Criticize Your Dentist? That's a Jailin'

Confession time: I've always been a little nervous at the dentist. X-rays pointed at my head? Poking my mouth with sharp objects? Using rotating buffers with unidentifiable grape-flavored goo on my teeth? Prone in a awkward chair? Not if I can help it. My dentist is a distant cousin who I've seen my whole life and I still feel like he or his staff might go all Laurence-Olivier-versus-Dustin-Hoffman on me at any moment.

So you can imagine that I'd never trust a dentist who reacts to negative online reviews by having his lawyer threaten the reviewer with criminal charges. Would you?


This Is The Most Wonderful Legal Threat EVER

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.

OMICS Publishing Group Makes A Billion Dollar Threat

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.

Former Bush Administration Attorney Threatens Bloggers As He Faces Federal Sentencing

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.

Battlefoam Learns Why Legal Threats Can Be Dangerous

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.

Suburban Express Took The First Bus To The Streisand Effect. Have They Disembarked In Time?

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?


Victory For Blogger Patterico In Free Speech Case

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.


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