It's time to light up the Popehat Signal and seek legal help for an author wrongfully threatened by a large company.

I first wrote about this situation in December. MCA Hogarth is a science fiction writer; she wrote a book called "Spots the Space Marine." Venerable gaming titan Games Workshop is claiming that it has a trademark in the term "Space Marine" that extends not just to games (like its well-known Warhammer 40,000) but to any use of "Space Marine" in science fiction. Never mind that the term has been in wide use in science fiction for many decades.

Hogarth, a self-published author, is finding Amazon.com unsympathetic to her arguments about Games Workshop's thuggish and meretricious claims, and is finding the cost of hiring trademark counsel an insurmountable barrier. (Edit: here's a mirror if her site gets slammed.) That's exactly the effect that 800-pound-gorillas like Games Workshop hope for when they make spurious claims — not that they'd win a protracted legal battle, but that their opponents lack the funds to fight, and that vendors like Amazon will defer to them.

As I have said before, I am always heartened by the response to the Popehat Signal. It's rare that it doesn't produce suitable pro bono counsel. So: this time, I'm hoping there is a trademark attorney out there — maybe a geeky one with the heart of a gamer, like me — willing to help Hogarth pro bono. Even advice and negotiation would be helpful, I bet. I would do whatever I can to coordinate support and backup for such a lawyer. As always, offers of help from lawyers in other fields, paralegals, tech experts, and other professionals is welcomed and helpful.

But that's not all.

I know you are out there, gamers and science fiction readers. Even if you're not an attorney, you can help. You can help by sending an email (edit: in the comments, Patrick offers the email to use) to Games Workshop telling them you won't buy their products while they engage in meritless trademark bullying. (Edit: or communicate with them by their Twitter account, https://twitter.com/VoxCaster.) You can help by spreading this story — and getting others involved — on every gaming and science fiction blog and board and forum out there. Inflict upon Games Workshop the consequences of their actions.

As always, thanks.

(And thanks to the dozens of people who emailed or tweeted me about this.)

In early November I put up the Popehat Signal seeking help for a blogger and anonymous commenters sued in connection with their statements about a rape case in Ohio. Many people figured out that I was talking about a rape prosecution involving members of a high school football team in Steubenville, Ohio, and a defamation suit brought by a teen named Cody Saltzman and his parents. The rape case, the defamation case, and the controversy surrounding them have now been covered in the New York Times.

I'm happy to report a good result made possible by the contributions of dedicated lawyers.

Alexandria Goddard, who blogs at Prinnified and was the lead defendant in the defamation case, reports that the case has been settled as to all parties and will be dismissed.

On behalf of myself and the John Doe defendants, we are very pleased to announce that the defamation lawsuit filed against us has been dismissed with prejudice. Dismissals with prejudice mean that this case can never be refiled again and this lawsuit is officially over. On December 20th, the plaintiffs approached us about settling this case, and we were quite happy to oblige. Lawsuits are costly and very stressful, and this suit has taken a toll on all involved. As part of the settlement we did not pay any money; we did not agree to retract any statements, nor did we agree to stop covering the case or discussing it.

Goddard offers a clarification that Prinnified never had any information that Saltzman took part in the rape alleged in the criminal case, and Saltzman offers an apology for his repulsive social media coverage of his classmates mauling a drunk child.

This is a tremendous victory for Goddard, for the anonymous commenters, and for free speech values. Congratulations and admiration are due to the following:

Jeffrey M. Nye and Thomas G. Haren were among the first to respond to the Popehat signal and quickly took up Goddard's defense. They were ably assisted by my friend and colleague Marc Randazza, who is familiar around these parts.

Paul Alan Levy of Public Citizen, another Popehat friend, stepped up to assist some of the anonymous commenters sued in the case and quickly secured dismissals against them.

The ACLU of Ohio, through attorney Scott Greenwood, stepped in to assist additional anonymous commenters in the case.

In addition, many additional attorneys and citizens wrote in response to the Popehat Signal offering to help.

A few thoughts and observations:

1. If the purpose of the defamation suit was to protect the reputation of Cody Saltzman and his parents, it was a catastrophic error in judgment. The suit invoked the Streisand Effect in full force and was very likely the catalyst that drew the attention of both the New York Times and (in more troubling fashion) hackers under the Anonymous banner.

2. Ohio doesn't have an anti-SLAPP statute. Nor do many states. Others have woefully deficient anti-SLAPP statutes. Goddard and the commenters here were very fortunate to get swift and highly effective pro bono help, without which they faced lengthy and ruinously expensive litigation. Most defendants in censorious defamation suits are not so fortunate. What can you do? You can lobby for effective anti-SLAPP laws in your state, lobby for a federal anti-SLAPP statute (various versions have been kicking around Congress for years), and help to publicize calls for pro bono counsel in cases like this one. As it stands, in states without effective anti-SLAPP statutes, the legal system does not prevent or deter censorship by lawsuit.

3. The First Amendment protects a very broad range of commentary about the Steubenville rape case and its participants. However, when it comes to government action, the accused — as well as the other young men who were not charged — are entitled to due process of law. Period. They are not less entitled to due process because you're horrified by what they are accused of, or because of allegations that they are being protected by corrupt locals. Supporting due process of law for people accused of despicable crimes is a civic value just as important as supporting freedom of expression for people whose speech infuriates you. Degrading one value tends naturally to degrade the other.

It's time for Popehat's Second Annual "Censorious Asshat of the Year" poll.

The rules of eligibility are arbitrary and capricious, but here are a few: (1) it has to be someone we've written about, (2) it has to be someone whose censorious behavior has a certain spark that elevates it above the mundane, and (3) it can't involve someone I represented, or for that matter anyone currently threatening to report me to the U.N. for hate crimes or whatever.

Here, in reverse chronological order, are the candidates.

Robert Alistair McAlpine, Baron McAlpine of West Green, who reacted to a false and vile news report by threatening not only the network that issued the report, but people who who merely repeated it on Twitter. In Aggravation: Had his attorneys issue Maoist self-criticism forms and suggest that anyone who mentioned the story should fill them out. In Mitigation: Was genuinely wronged by incompetent BBC reporting.

Matthew Overstreet of Casey Movers, who immolated his company's brand with foolish defamation threats against a bad Yelp review. In Aggravation: expressly bragged about dragging someone to a distant court. In Mitigation: He's obscure, pitiful, and has largely retreated.

Craig Brittain of "Is Anybody Down?", who used a frivolous and barely coherent DMCA notice to try to censor Popehat posts about his vile fraud scheme. In Aggravation: A thoroughly despicable fraudster and purveyor of involuntary porn designed to abuse and humiliate. In Mitigation: None.

The Reading University Student Union and its leaders Kara Swift, Kath Davey, Richard Silcock, and Ceri Jones, for pursuing disciplinary proceedings against a student group for displaying a pineapple named Mohammed, on the grounds it caused offense. Sorry, "Offence." In Aggravation: Betraying a proud heritage, contributing substantively to the decline of Western Civilization in favor of an imagined right not to be offended. In Mitigation: They very likely have never been taught any better.

Attorney Charles Carreon, who in an ongoing saga this year sent a bumptious and frivolous defamation threat to a popular webcomic, and when met with ridicule and satire, retaliated with frivolous federal litigation seeking to interfere with a charitable campaign that offended him. Also threatened a blogger for satirizing him and wrote to that blogger's employer. In Aggravation: Purports to be an internet lawyer and a defender of freedom, despite having no apparent grasp of the internet and an abiding hatred of freedom. In Mitigation: It's rubble-bouncing at this point, and his asshattery resulted in major donations to good causes.

Larry Bodine of Lawyers.com, who reported lawyers to Twitter for spamming when they used a marketing hashtag to comment on a vapid legal marketing event. In Aggravation: He and his ilk are making the legal profession, no bed of roses to begin with, measurably more awful. In Mitigation: It seems as if this was a passing fancy between feckless eructations of marketing-gibberish rather than a long-term thing.

The University of California's Advisory Council on Campus Climate, Culture, and Inclusion, which issued a broad-based recommendation for patently unconstitutional campus hate speech laws, addressing the First Amendment issues with an imperial hand-wave: “The Team recognizes that changes to UC hate speech policies may result in legal challenge, but offer [sic] that UC accept the challenge.” In Aggravation: By example, teaching university students to be stupider and more censorious. In Mitigation: Irrelevant, even for a university advisory committee.

John Rocker, brought in to WorldNetDaily to add gravitas, who offered a nearly perfect articulation of the ridiculous viewpoint that criticizing someone is a form of censorship, a long-standing Popehat bugaboo. In Aggravation: He's being a dick about people being a dick about people being a dick, and the recursion is giving me a headache. In Mitigation: Who?

Boston Mayor Thomas Menino, for threatening — albeit briefly — to bar Chick-Fil-A from Boston because its owners have regrettable views on gays and gay marriage. In Aggravation: Overtly threatened abuse of government power. In Mitigation: A born politician, he doesn't mean anything he says, and likely lacks the ability to govern his words or actions.

Sinclair Community College President Steven L. Johnson, for explaining that protesters at his state-run school are prohibited from using protest signs because of 9/11 and Virginia Tech. In Aggravation: Invoking the name of honored dead to suggest Americans should cower at the prospect of misspelled and poorly thought-out signs about Veganism and capitalist pigs or something. In Mitigation: After prolonged exposure to the academic environment, incapable of thinking like a normal person.

The Olympic Establishment, for pestering and insulting knitters and policing the pronouncements of publicans, purportedly in an effort to wring every last drop of lucre out of human athletic achievement. In Aggravation: Don't mess with fries, fuckers. In Mitigation: If we'd turn the damn TV off and stop buying the geegaws, they'd stop.

Raanan Katz, who is remarkably photogenic if you find Jabba the Hutt alluring, embarked on a legal campaign against people publishing his picture and writing about him, including saying that pointing to the alleged defamatory blogs might itself be defamation and arguing that representing people he's suing is itself actionable. In Aggravation: He thinks his money ought to make him immune to criticism. In Mitigation: He seems really quite sensitive. There should be some kind of program for that.

Berkeley Chief of Police Michael K. Meehan, who disagreed with a story written about his department, and so sent a police officer to the home of the journalist at 12:45 a.m. to ask that it be changed. In Aggravation: That's some straight-up stone-cold thuggery. In Mitigation: the article apparently hurt his feelings; it's possible that in Berkeley that's against the law.

Brett Kimberlin, a convicted perjurer and bomber who abused the justice system by seeking and obtaining "peace orders" prohibiting blogger Aaron Walker from writing about him, a legal atrocity that was only overturned with great effort. In Aggravation: Kimberlin engaged in a campaign of bombing terror, wounded a man so badly that he later took his own life, laughed off the judgment against him for years, and now thinks that the law should prevent people from writing about him. In Mitigation: Nothing. Not a damn thing. Nothing at all. Except this. Maybe.

The Lincolnshire Police, who threatened John Richards with arrest if he did not take down a letter-sized piece of paper in his window bearing the slogan "religions are fairy stories for adults." Because feelings! In Aggravation: Part of the vanguard of the sad decline of a great culture. In Mitigation: Would no doubt have been extremely polite and gentle in arresting Mr. Richards for that mean piece of paper.

The Legislatures of Arizona and Connecticut, both of which toyed with trend-humping, foolish, overbroad, and badly drafted "cyberbullying" legislation in an effort to prevent people from being mean on the internet. In Aggravation: They took oaths of office to uphold the Constitution. In Mitigation: Nobody expects them to keep those oaths.

Here is the poll. One vote only. The poll closes midnight on the 31st.

[poll id="4"]

M.C.A. Hogarth is a writer of many things, including science fiction.

You would think that it is difficult to draw frivolous legal threats and demands writing science fiction. You would be wrong. Hogarth wrote a book called Spots the Space Marine, only to find it yanked from Amazon, apparently based on a claim of trademark infringement by I-can't-believe-they-still-exist gaming institution Games Workshop. Games Workshop, it seems, told Amazon that they own the trademark to "Space Marine," not withstanding that (1) they don't own a trademark to it in the context of science fiction books, and (2) they couldn't, because the term has been in wide use in science fiction for the better part of a century.

Unprincipled and frivolous trademark threats chill speech just like defamation threats. Companies that make them should face consequences. Regrettably, Amazon will probably continue to pull books first and ask questions later.

In early October I announced that I would be joining Ron Coleman in a pro bono defense of Patrick Frey of Patterico's Pontifications and his wife Christi Frey in response to a federal lawsuit filed by Nadia Naffe here in the Central District of California.

Today I write to offer pleadings for anyone interested in the case, and a pleasing update regarding its status. As long as litigation continues, I'll refrain for both prudential and stylistic reasons from arguing our case here, other than to say we continue to believe the case is an abusive and meritless attempt to retaliate against protected speech. As a result, I won't be explaining the motions or legal theories, or helping you decipher legalese. You're on your own. Sorry.

The Documents

The following are conformed copies of the relevant documents, all filed publicly on PACER:

The Complaint

Ms. Naffe's Complaint

The Motion to Dismiss:

Our Motion To Dismiss

Ms. Naffe's Opposition To Our Motion To Dismiss

Our Reply In Support of Our Motion To Dismiss

The Anti-SLAPP Motion:

Our Anti-SLAPP Motion

Ms. Naffe's Opposition to the Anti-SLAPP Motion

Ms. Naffe's declaration and her exhibits A and B In Opposition To the Anti-SLAPP Motion

Our Reply In Support of the Anti-SLAPP Motion

Mr. Frey' Declaration In Support of the Reply, With Exhibits

Our Objections to Ms. Naffe's Evidence

The Notice of Dismissal

Ms. Naffe's Notice of Dismissal Of Her Claims Against Mrs. Frey, and of Certain Claims Against Mr. Cooley

The Update

As you can see, Ms. Naffe dismissed all claims against Mrs. Frey in response to our motions.

Today I appeared before Judge George H. Wu on our motions. His written tentative ruling is attached here. Note, as stated in footnote 1, that he treats allegations of fact in the Complaint as true for purposes of the motion to dismiss, as is appropriate; that's not a finding that the allegations are true. Many are not.

In brief, Judge Wu agreed with us that the Complaint failed to state a claim under 42 U.S.C. section 1983 because the facts alleged do not show that Mr. Frey was acting "under color of state law," as is required under that statute. After argument, he gave Ms. Naffe what he described as "just one chance" to amend — that is, he gave her a chance to file an amended complaint to see if she could plead facts sufficient to satisfy the requirements of Section 1983. Generally judges err in favor of giving a chance to amend.

Judge Wu did not reach the anti-SLAPP motion or the state law claims it addresses Rather, he questioned — on his own, not at our urging — whether Ms. Naffe could satisfy the damage cutoff for diversity jurisdiction, which is one of her asserted bases for federal jurisdiction. To the extent Ms. Naffe relied upon federal question jurisdiction based on her Section 1983 claim, Judge Wu indicated he would exercise his discretion to refuse to extend supplemental jurisdiction over the state law claims. In other words, Judge Wu questioned whether a federal court should hear the state claims at all. That will undoubtedly be the subject of the next set of motions.

I'm pleased that Ms. Naffe dismissed all claims Mrs. Frey in response to our motions. Although the case continues, I'm also pleased with this result, and look forward to challenging Ms. Naffe's amended complaint to vindicate the crucial First Amendment issues involved. Patrick's trying a case, so you probably won't get an update from him any time soon.

A Note About Sarcasm

I'm only going to address one minor issue in the briefs and the tentative ruling, because it involves me and this blog. In March, well before Ms. Naffe sued and I appeared in this case, I wrote a post about Ms. Naffe's threats against Mr. Frey. In that post, referring to Mr. Frey's point-by-point questioning of Ms. Naffe's accusations against James O'Keefe, I dropped this line:

The defense attorney in me is tempted to say that this is the most thorough consideration of exculpatory evidence that I have ever seen from a Los Angeles County Deputy District Attorney, but that would be uncouth, so I will not, and you should definitely forget that I brought it up.

I thought that this was self-evidently a joke, a friendly swipe by a snarky criminal defense lawyer talking about a prosecutor. I was rather surprised to see both Ms. Naffe's counsel and — in response – the judge seem to take it literally. Such are the hazards of sarcasm. Or maybe I should say, as I always do to my wife, kids, law partners, and anyone who will sit still, that nobody understands me.

I don't know that Dr. Michael Farris, Chancellor of Patrick Henry College, will act like a censorious tool today or tomorrow. But as Patrick Henry said, “I know of no way of judging of the future but by the past.” So I'm betting on yes.

Patrick Henry College is a small, private, devoutly Christian college in Virginia. It's honest about speech — by that I mean, unlike schools that promise to celebrate and respect freedom of expression whilst enacting indefensible speech codes, Patrick Henry College is very forthright about restricting the expressive activities of its students. I condemn public institutions that suppress speech, and private institutions that promise freedom of speech but deny it, but when it comes to institutions like Patrick Henry I share The FIRE's viewpoint, which I would paraphrase as "you knew the job was dangerous when you took it, Fred."

So: I wouldn't spend much time on Patrick Henry College banning students from advocating gay rights on campus. I might find it repugnant, but it's their patch. However, when Patrick Henry College — through Chancellor Farris — starts to threaten lawsuits based on criticism of the school from a gay rights perspective, I become perturbed.

The blog queerphc, or "Queer at Patrick Henry College," says up front that it is not part of or endorsed by the college, but is written by Patrick Henry students unified by "our desire to help and encourage other Patrick Henry College students, current and former, in any way that we can." The blog covers things like the ongoing dialogue about conflicts between sexuality and religious dogma at Patrick Henry and disputes over the very language of the discussion about sexuality.

This was apparently intolerable to Chancellor Farris, who should have listened to Patrick Henry: “For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst and to provide for it.” Chancellor Farris issued a foolish threat — not merely of academic consequences to the anonymous Patrick Henry bloggers, but of legal consequences. He wrote a threat on the blog's Facebook page:

This page is in violation of our copyright of the name Patrick Henry College. You are hereby notified that you must remove this page at once. On Monday we will began [sic] the legal steps to seek removal from Facebook and from the courts if necessary. In this process of this matter we can seek discovery from Facebook to learn your identity and seek damages from you as permitted by law. The best thing for all concerned is for you to simply remove this page.

Find another way to communicate your message without using the term ‘Patrick Henry College’ in any manner.

Had Patrick Henry College at last been brought to such a humiliating and debasing degradation, that we cannot be trusted to endure criticism on a blog? Apparently.

Then people started to take notice. Paul Alan Levy of Public Citizen called Chancellor Farris to inquire whether he is represented by counsel in the matter. If you are a reckless would-be censor, such an inquiry is about as ominous as a call from your doctor asking "how quickly can you get in to discuss the extremely alarming things our team has discovered on your rectal X-ray?" Within minutes, Farris publicly retreated:

After further consultation, I withdraw my note from yesterday. While we believe in the inappropriate nature of the use of our trademarked name, we believe that litigation is not appropriate.

Patrick Henry said that "the battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave.” Of course, the vigilant know which battles to pick in the first place, and don't make utterly reckless and legally specious threats. As Levy says, "Apart from displaying his ignorance about the difference between copyright and trademark, Farris showed his lack of familiarity with the rudiments of trademark law, which allows bloggers to use the name of the target of their criticism to identify the pages where the criticism appears."

Farris retreated ignominiously from the field, but it was too late to salvage his reputation as an attorney. Levy picked it up, as did New York Magazine. The lesson is a sharp one: foolish litigation threats may lead to public humiliation. They should. It is the solemn duty of everyone who cares about freedom of expression to contribute to that public lesson.

But it is not just censoriousness that has lost here. Some opponents of gay rights, and critics of increasing tolerance of gays, view homosexuality as a weakness. How appropriate, then, that their credibility and cultural sway continues to be undermined by their own human frailties — hubris, ignorance, and misguided wrath. They are losing. Good.

As I've argued before, local newspapers can display disappointing levels of competence and professionalism. Or, as the cynic in me suggests, perhaps they're simply displaying a disappointing inability to conceal lack of competence and professionalism, like their larger cousins usually can.

Nevertheless I can still be surprised, on occasion, by the complete meltdown of a local paper.

This is such an occasion.

Continue Reading »

Robert Alistair McAlpine, Baron McAlpine of West Green, is not a child molester.

When BBC2's Newsnight reported on a child abuse scandal, it incorrectly stated that a "a prominent Thatcher-era Tory figure" had engaged in child abuse. This report, premised on mistaken identity, was widely understood to refer to Lord McAlpine, and intended to refer to him.

It is hard to imagine a more damaging false accusation than one of child abuse. The BBC has apologized and paid Lord McAlpine; if (as the stories linked above suggest) it was reckless in its reporting, that's a just result.

But Lord McAlpine is not satisfied with pursuing the networks that made the false report. He's also pursuing citizens who commented on the news report.

Mr. McAlpine did not stop with the mainstream media. On Friday, a spokeswoman for the politician told The Guardian newspaper that his lawyers had identified 20 “high-profile tweeters” from whom they were seeking libel damages. Among them were a comedian, Alan Davies; Sally Bercow, the wife of John Bercow, the speaker of the House of Commons; and George Monbiot, a Guardian columnist.

. . .

In addition to the prominent figures, Mr. McAlpine is reportedly pursuing action against thousands of other Twitter users, including people who had merely repeated to their own followers comments made by others.

Apparently Lord McAlpine is contemplating pursuing speech that only by implication repeated any defamatory statements by the media:

On 4 November Bercow tweeted to her 56,000 followers: "Why is Lord McAlpine trending? *innocent face*".

She followed this up with the tweet: "Final on McAlpine: am VERY sorry for inadvertently fanning flames. But I tweet as me, forgetting that to some of u I am Mrs bloody Speaker." She has since deleted her Twitter account.

At the time the Newsnight allegations were being widely discussed on Twitter Monbiot tweeted: "I looked up Lord McAlpine on t'internet. It says the strangest things." Monbiot later apologised on his blog.

Lord McAlpine's attorneys at RMPI have set up a sort of mass-production system to address potential defendants, encouraging them to come forward, apologize, pay money to charity, and pay “a small administrative charge to cover the costs of dealing with this matter”. RMPI has issued a letter — helpfully available on its web site — which kindly assures us that it is not their intention to "create any hardship," but attaching a form confession and apology for Twitter users to fill out. They are careful to explain that this method is only "confirmed" for Twitter users with fewer than 500 followers, which Lord McAlpine apparently views as a demarcation of Twitter prominence. (By that measure, Popehat is prominent by an order of magnitude, though vastly less prominent than, say, @DrunkHulk.) "Prominent" Twitter users may be subjected to special treatment.

Lord McAlpine is also apparently seeking criminal charges against some Twitter users:

"We have met with senior officers from Scotland Yard," he told BBC Radio 4's The World at One programme. "There are a hard core of people retweeting, acting maliciously, which is illegal. And no doubt in due course the police will investigate that or not, that is up to them, not us."

In some nations that would be a self-evidently vain attempt. In England, it is manifestly not.

No doubt many Twitter users will be intimidated into completing Lord McAlpine's and RMPI's self-criticism forms. England's stupendously awful libel laws give Twitter users every reason to fear that Lord McAlpine can pursue them and ruin them, whatever the justice of the matter.

And the matter is unjust. Lord McAlpine was wronged by the BBC's incompetent (and perhaps even deliberately malicious) reporting. But in pursuing Twitter users who merely linked or commented upon news reported by the BBC, Lord McAlpine is acting like a thug, and RMPI like his lowlife bully-boys. What Lord McAlpine is pursuing here — aided by a broken libel law — is the dream of every entitled and narcissistic public figure: a world in which citizens cannot safely repeat, or comment upon, unflattering reports about them in the media. That's a goal well beyond what the regrettably compliant legal system has already given them.

Lord McAlpine and RMPI know that Twitter users cannot possibly conduct research themselves on the facts underlying stories in the newspapers or on the networks. By purporting to impose a duty of independent verification of such stories, they hope that you, and I, and everyone else who sees a story about someone like him will be chilled and deterred from linking it on Twitter, or retweeting a comment about it, or even making a vague and sly reference to it. They hope to establish a system in which the risks of comment on any negative story on any public figure are so daunting that people like Lord McAlpine are effectively protected from insult or rebuke, like the luminaries of some pre-modern kingdom or authoritarian hell-hole.

Lord McAlpine is not a child molester. It was reckless of the BBC to report, by implication, otherwise. But Lord McAlpine has now shown what he is: an entitled thug.

When Phil Buckley (who blogs at 1918.com) and his wife Kristen Buckley received a certified letter from a mover, perhaps they allowed themselves to hope, for a fleeting moment, that the envelope contained a check, or an apology for substandard service. It did not. It contained a very stupid and amateurish legal threat.

Continue Reading »

Today I'm putting up the Popehat Signal seeking pro bono assistance for a threatened blogger and anonymous blog commenters.

For the moment, I'm only going to describe the case generally, though I may discuss it later at length. The blog in question reports on local crime stories in Ohio, and in this instance reported on a local prosecution of the rape of an unconscious young woman, allegedly by high school football players. One player was not accused of the rape, but was criticized on the blog based on an allegation that he took pictures of the unconscious young woman but did nothing to stop others from sexually assaulting her. He, and his parents, have now sued the blogger and have named multiple commenters as John Doe defendants and will seek to unmask them.

I've reviewed the complaint, and it appears to me that (1) many of the statements it complains of are archetypical statements of opinion protected under the First Amendment, and (2) that the relief it demands — including prior restraint on publication, removal of existing posts, and a court-mandated retraction and apology — are extremely questionable. Moreover, to the extent the suit attempts to assign liability to the blogger for the words of commenters, it runs afoul of Section 230 of the Communications Decency Act.

The suit has been filed in Jefferson County, Ohio. The blogger needs counsel, and the John Doe defendants may as well — whether individually or as a group to fight attempts to unmask them. This may be a case like the Planet Valenti matter where local power politics play a role.

If you can possibly help, or if you know anyone who can, please drop a line to ken at popehat etc. I will pass information along to the people involved.

Remember: because of the flaws in our legal system, defense of the First Amendment relies upon the vigorous participation of lawyers (and others) willing to lend a hand.

[Confidential to C.B. and C.T.: snookumses, I'm sure you'll be mewling about "why does he attack us but help these people!" One answer, as anyone with a room-temperature IQ will tell you, is that these people aren't engaged in wire fraud and extortion. Thx.]

Last week I introduced you to Marc Randazza's investigation of fraud and extortion by "Is Anybody Down?" and imaginary lawyer "David Blade III", discussed how Craig Brittain, owner of "Is Anybody Down?", couldn't keep his story straight about whether Blade existed or who he is, and made a clearly pointless appeal to the humanity of Craig Brittain and his partner Chance Trahan.

Craig updated his "trolldown" blog with an attack on me, which featured the sort of at-length paean to sociopathy you'd get if you went to a Team Fortress forum, picked the user with the most scatalogical and racist username, withheld his medication for 48 hours, and asked him to explain his personal philosophy.

But that's not all. Craig also tried to get the three posts about him on Popehat taken down by sending a bogus DMCA takedown notice to our host, Dreamhost. I've been a little mad at Dreamhost recently because of some outages, but I'm very happy with their response to this, which gives me confidence they will handle it correctly. They've recognized that's the notice is defective and they're not requiring a counter-notice from me yet — though I'd enjoy writing one.

Here, without further ado, is Craig's notice. I've only changed it to remove his home address and phone number. Comments after.

Received: 2012-11-03 01:14:01 from Is Anybody Down to DreamHost Abuse

November 3rd, 2012
Notification of Claimed Copyright Infringement (Digital Millennium Copyright Act, 17 U.S.C. § 512.)

To: Dreamhost.com/Abuse/Whom It May Concern Dear Sir or Madam, I, Craig R. Brittain, swear under penalty of perjury that I have been authorized to act as the non-exclusive agent for copyright infringement notifications for the undersigned parties (see
name(s) of copyright holder(s)). I have detected infringements of my accounts copyright interests on a website hosted by GoDaddy.com as detailed in the reports below.

1. Name(s) of copyright holder(s):
Craig R. Brittain/Is Anybody Down/isanybodydown.com/Chance Trahan/Kataishin.com/Trolldown.com/TakedownLawyer.com/TakedownHammer.com
2. Name of person authorized to act on behalf of copyright holder(s):
Craig R. Brittain
3. Identify the copyrighted work claimed to have been infringed:

http://www.popehat.com/2012/11/02/my-dinner-with-chance/

http://www.popehat.com/2012/10/31/craig-brittain-of-is-anybody-down-cant-keep-his-story-straight-and-its-barack-obamas-fault/

http://www.popehat.com/2012/10/30/the-takedown-lawyer-lets-help-marc-randazza-investigate-a-scammer-shall-we/

4. Include a representative list of such works at that site:
Numerous text excerpts from various websites owned by Craig R.
Brittain/Chance Trahan as well as various pictures.

http://www.popehat.com/wp-content/uploads/2012/10/Blade-Ad.png

http://www.popehat.com/wp-content/uploads/2012/10/correspondence-with-22david-blade22.pdf

http://www.popehat.com/wp-content/uploads/2012/10/Craig-Brittain-Felony-Record.pdf

http://www.popehat.com/wp-content/uploads/2012/11/ChanceTrahan-480×562.png

5. Identification of the material that is claimed to be infringing or to be the subject of infringing activity that is to be removed or access to which is to be disabled:
The posts and images above contain personal information which is owned and copyrighted by its respective copyright owners and is damaging in nature and contains personal information in violation of copyright and numerous privacy laws and must be removed immediately.
6. Name of complaining party: Craig R. Brittain 7. Address: [omitted by Ken], Colorado Springs, Colorado, 80920 8. Phone: [omitted by Ken] 8. E- mail: submit@isanybodydown.com I hereby affirm, as the complaining party, that I believe in good faith that the use of the material in the manner complained of is not authorized by the copyright holder, its agent or the law.
I hereby affirm, under penalty of perjury, that the information contained in this notification is accurate, and that I am authorized to act on behalf of the holder of the exclusive right that I claim to be infringed.

Craig R. Brittain_____________________________
Signature of person authorized to act
Date: November 3rd, 2012, 2:10 AM MST______________________

The notice is patently ridiculous on any number of levels. Note, for instance, that Mr. Brittain is asserting copyright in a printout of his criminal record and in a correspondence between "David Blade" and Marc Randazza.

Note also that in his under-penalty-of-perjury statement Mr. Brittain avoids asserting explicitly that "David Blade" is a real person. That's probably prudent.

It's not going to work, Craig. Even if you catch some abuse official on a bad day and convince them to take a few posts down, 100 more will pop up talking about your sick campaign of fraud and extortion.

Back in July I noted that climate scientist Michael Mann had threatened to sue National Review, Mark Steyn, and others for vivid online criticism. Mann is the originator of the famed "hockey stick graph" of global warming data; he was accused of academic misconduct based on notorious hacked emails, but cleared by a Penn State investigation. Steyn quoted and linked to a post by Rand Simberg at the Competitive Enterprise Institute, the rhetorical thrust of which was that Penn State clearing Mr. Mann was no more credible than its clearing of Jerry Sandusky.

Yesterday the other shoe dropped and Mann sued NRO, CEI, Steyn, and Simberg in D.C. Superior Court for libel and intentional infliction of emotional distress (or, as I prefer to call it, Butthurt in the First Degree). The Legal Times has posted the complaint. I've reviewed it, and have some initial thoughts.

Continue Reading »

[All of our coverage of Charles Carreon's journey from relative obscurity to justifiable infamy is collected under this tag.]

Charles Carreon continues to be Charles Carreon, only more so.

Back in Chapter Eight I describe how the blogger behind "Censoriousdouchebag — a satirical diary about Charles Carreon" sued Carreon for declaratory relief in federal court in the Northern District of California. That was the most effective way to deal with Carreon's censorious threats to the blogger, which amounted to "I'm going to sue you at some point, in as inconvenient a location as possible, in as expensive a way as possible." Here's a reminder of that threat, directed to the blogger's pro bono attorney, Paul Alan Levy of Public Citizen:

As far as when and where I will sue your client, be certain that it will occur if your client does not cede the domain, and advise her of ten things:
1. That there is essentially no statute of limitations on this claim, and the prima facie laches defense [ed. note: that's an equitable defense that asserts "you waited too long to file this."] would not kick in for at least three years.
2. That venue in this action can be validly laid in at least three places, maybe four, if she doesn't live in Arizona, Florida, or California.
3. That I am capable of employing counsel to handle my claim against her, who will incur attorneys fees and seek recovery of the same. I filed pro se against Inman simply for the sake of convenience and the need for speed, and not from a lack of resources.
4. That the law in this area cannot be predicted with certainty, will evolve substantially over the next three years, during which I will be using digital forensics to establish actual trademark damages in addition to seeking the maximum cybersquatting penalty of $100,000.
5. That a judgment that recites that the domain was obtained by fraud upon the registrar, in the form of a misrepresentation that she did not know of my trademark on the name, might well be non-dischargeable in bankruptcy.
6. That a judgment can be renewed indefinitely until collected, and that California judgments accrue 10% interest, which can compounded once ever ten years by capitalizing the accumulated interest.
7. That you cannot guarantee that Public Citizen will provide her with free legal services on June 1, 2015, when I may very well send the process server 'round to her door.
8. That I have the known capacity to litigate appeals for years (check my Westlaw profile, and of course, the drawn out history of Penguin v. American Buddha, now in its third year, having passed through the Second Circuit and the NYCA, and still hung up in personal jurisdiction in the SDNY).
9. That the litigation, being of first impression in virtually every Circuit, grounded in a federal question, involving a registered trademark, and dispositive of many open issues in the field of Internet commerce and speech, might very well continue for a decade.
10. That Public Citizen might well be unable and/or unwilling to provide her with representation until the resolution of such an extended course of litigation.

Despicably thuggish.

Once the blogger sued him, Carreon could have stood up — he could have come to court to defend his belief that he has a valid claim against the blogger. Instead Carreon has been doing what he can to hinder and delay the lawsuit by cowering and evading service. The blogger — ably represented pro bono by Paul Alan Levy of Public Citizen and Cathy Gellis — has been attempting to serve Carreon, and Carreon has been going to ridiculous lengths to avoid being served. You can read Paul's brief describing Carreon's evasions here, and Paul's supporting declaration here. Or consider the judge's summary in an order from this week:

Plaintiff seeks a declaratory judgment that his satirical website does not infringe the trademark defendant has in his own name. Prior to filing a complaint, plaintiff’s counsel was in contact with defendant via email. After filing the complaint, defendant and his wife publicly discussed the pending litigation. Plaintiff’s counsel mailed defendant a request for waiver of summons to his address in Tucson, Arizona, which defendant did not execute. Instead, the entire envelope was mailed back to plaintiff, unopened, inside a second envelope. This same sequence of events was repeated after plaintiff filed an amended complaint. At plaintiff’s request, the Court issued a summons, and plaintiff hired an Arizona process service company to serve the summons at the residential address. On the first visit, the server announced himself and was told “No thank you,” and left with the papers. On the second and third visits, nobody answered. The process service company then tried to serve the summons and complaint by certified mail, but the package was never claimed.

During this time, defendant contacted the general counsel of Walgreens, plaintiff’s employer, stating plaintiff had used Walgreens’ computer equipment or internet access to create the allegedly actionable website, and implying he might make Walgreens a party to the litigation under a theory of respondeat superior. The demand letter sent to Walgreens contained the same Tucson, Arizona address and email address that plaintiff had been using to attempt service on defendant.
On September 25, 2012, plaintiff’s counsel again emailed defendant a copy of the summons, complaint, and amended complaint using both the address listed on defendant’s letterhead and the gmail address defendant had used to correspond with counsel for both plaintiff and Walgreens.

Plaintiff’s counsel requested defendant meet and confer about plaintiff’s intent to file a motion to declare service effective. Defendant has not responded.

Regrettably, even though Carreon knows about the lawsuit, has written about the lawsuit, has threatened the blogger's former employer about the lawsuit, has refused to accept service from a process server, and has returned the lawsuit unopened, the Court has ruled that the blogger must make further efforts to serve Carreon:

Because of the due process and personal jurisdiction concerns that arise with respect to proper service of a defendant, substituted service by email is not granted out-of-hand. While defendant is apparently making service of process difficult for plaintiff, in accordance with our traditional notions of due process, plaintiff must redouble efforts at traditional service of process before resorting to this Court for authorization of substituted service.

So: now the blogger must pay to have process servers hang out and try to catch Charlie the Censor to serve him. That's an expensive proposition — about $60 per hour, in an effort that can easily take tens of hours if Carreon continues to work to evade service.

The blogger doesn't have a lot of money. Though Carreon will eventually be ordered to reimburse his service costs, right now those up-front costs are a huge barrier to him being able to get justice. This is exactly how censorious lawyers like Carreon can abuse the system to suppress criticism.

Therefore, I'd like to ask for a favor. If you've enjoyed reading this series, please consider making a modest donation to Public Citizen for the purposes of paying costs in this case, including the cost of serving Carreon. Levy's post with the donation link is here. I understand that any excess funds will be used to pay litigation expenses in other Public Citizen online free speech cases. That's a worthy cause.

Perhaps you'll say, "Ken, why don't you put your money where your mouth is?" I'd answer like this: I believe strongly enough in this case that I donated the filing fees and other initial expenses — more than $700 — out of my own pocket. Please step up and throw in a few bucks yourself to help a blogger protect himself from censorious thuggery.

I am neither a booster nor a detractor of badgers, the 2000 Rose Bowl notwithstanding. I am, however, a booster of free speech, and a detractor of bullies. Therefore, today I tell the following to the government of the United Kingdom, with all respect that is due: back the feck off or we'll put a boot up your arse.

Continue Reading »

Regular readers know that I occasionally offer pro bono legal assistance to bloggers threatened with frivolous and censorious lawsuits. When I've not been able to offer services myself, and have used this space to solicit pro bono help for threatened bloggers, I've consistently been heartened by the generosity of lawyers and non-lawyers alike.

Today I am proud to be offering pro bono services as local litigation counsel to Patrick Frey, who blogs as Patterico. One Nadia Naffe has filed a vexatious federal suit against Patrick and his wife in retaliation for Patrick's exercise of his rights under the First Amendment to the United States Constitution. The estimable and formidable Ron Coleman, who blogs at Likelihood of Confusion, will be lead counsel, and is also acting pro bono.

As a Deputy District Attorney, Mr. Frey is a professional adversary. As a blogger, he is substantially to the right of me, and though I respect his abilities and his honesty, I disagree with him more often than not. But I am honored to have the opportunity to serve him in defense of crucial free speech principles in the face of an abusive and politically motivated lawsuit.

This is exactly the sort of censorious and chilling lawsuit I would normally critique and analyze here in detail, but I will not be doing so. Though I may post occasional pleadings and motion practice, we will make our points in court.

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