Last year I wrote about how vexatious litigant and unrepentant domestic terrorist Brett Kimberlin filed a blatantly frivolous RICO suit in federal court in Maryland seeking to silence and retaliate against those who had criticized him.
Now the American Spectator, a conservative magazine, has ignominiously surrendered to him.
Many were suspicious the Spectator had reached some agreement with Kimberlin when he abruptly dismissed the American Spectator from the RICO case. He did so without serving the Spectator and with prejudice — meaning that he cannot re-file the claim. Those suspicions were confirmed when articles about Kimberlin disappeared from the site. As Lee Stranahan first reported, past articles about Kimberlin on the site have mysteriously disappeared. Most don't seem to be cached anywhere, with the exception of this one by Robert Stacy McCain, the Spectator's co-defendant in the RICO case.1 Most are just gone.
Settling a lawsuit is generally a business decision. When clients tell me they don't want to settle because of the principle involved, I explain that the justice system is terrible at sorting out principles. It is very good at putting people in jail, and mediocre and inefficient at moving money from one person to others (mostly to lawyers), but it's a terrible vehicle for vindicating right or wrong. Generally settling a lawsuit — even a vexatious one — is a rational economic decision by a defendant, taking into account a broken system and the ruinous cost and distracting nature of litigation.
But the American Spectator is not most defendants, and Kimberlin's RICO case is not a typical vexatious lawsuit.
The American Spectator purports to be a magazine — it purports to be about journalism and vigorous expression of opinion. It's true that it's highly partisan, but not unusually so. It's sort of a Salon for people who think Hilary Clinton killed Vince Foster. De gustibus non est disputandum. But it relies upon free speech. The First Amendment is essential to its operation. Indeed, even this week it was urging defiance to what it saw as Democratic Party threats to free speech:
Will we keep the First Amendment safe from Harry Reid? asks @jpcassidy000. http://ow.ly/BEsKy
Moreover, the Spectator has traditionally urged defiance in the face of politically motivated defamation claims. Such exhortations to resist "liberal" "tyranny" are common to the Spectator. And any publication — from the New York Times to somebody's LiveJournal page — relies for any credibility upon the proposition that it will say things even if some people do not like them.
But the American Spectator caved, and removed content.
Was it about the expense of litigation? True, it's expensive. But as far as I can tell the American Spectator never sought pro bono help from any free speech networks. Even though I experienced considerable difficultly when I sought pro bono help for the individual codefendants, it is very likely that an entity like the Spectator would have been able to find free or reduced-cost help, perhaps from ideological allies. And bear in mind that some of the individual co-defendants, even though they are not lawyers, have been vigorously and successfully litigating against Kimberlin pro se.2
Did the American Spectator have doubts about the merits of the case? Did it think Kimberlin might have a point? If it thought that, it is not competent to evaluate such things. Kimberlin's Second Amended Complaint is vague and ambiguous about his claim against the Spectator:
Defendant The American Spectator published numerous defamatory articles by Defendant McCain and then removed them. Defendant McCain complained to the editor and the articles were then republished in February 2014 with different urIs. The sheer number of articles published by the American Spectator about Plaintiff demonstrates malice an intent to harm him and his business prospects. For example, in one, titled "Terror By Any Other Name," Defendant McCain imputes that Plaintiff was involved with swattings . . .
The complaint goes on to quote one of the stories at length without specifying what is false or defamatory about it.
As I have written before, the claims are patently frivolous. Some of the scrubbed articles rely on published court opinions and newspaper articles to tell Kimberlin's history. Others discuss his lawsuits seeking to quell speech. One of them quotes my analysis of why epithets used against Kimberlin are protected opinion. Moreover, even if the American Spectator honestly (but stupidly) thought that some portions of one or more of the articles were defamatory, that does not explain or excuse them scrubbing all mentions of Kimberlin from their web site. Vexatious and censorious litigants frequently demand that all mention of them be removed; actual journalists or commentators worth reading don't do it.
Most litigants settle. But some litigants are, or should be, different. Their cowardice in the face of frivolous litigation impacts everyone. Universities — which rely on free expression — are different, which is why it was unacceptable for the University of St. Thomas School of Law to pay money to vexatious litigant Joseph Rakofsky rather than defend the right to write about public court proceedings. Any institution that bills itself as a "magazine," that has pretenses to journalism or commentary, is different as well. American Spectator has a journalistic and social obligation to defend itself and therefore defend free speech against censorious litigation. By surrendering and scrubbing content, the Spectator has abetted and encouraged abuse of the legal system and emboldened people like Kimberlin to sue to remove speech they don't like. They've betrayed their purpose. That's unacceptable.
It would be inaccurate to say that the American Spectator will lose credibility generally as a result of this decision. Its breathless partisanship and assorted oddities limit its credibility to its target audience of the like-minded. Doing this will wound its general credibility in the sense that the Weekly World News would hurt its credibility by doing a very one-sided hit piece on Bat-Boy. But this surrender will, and should, eviscerate its credibility with its target audience and its readers. First, how can it be taken seriously as an institution willing to speak truth to power if it caves to a frivolous lawsuit by a domestic terrorist?3 Second, how can they be taken seriously as a conservative institution that will question liberals, when they yield to a blatant attempt to abuse the legal system to retaliate against conservative viewpoints?
No. They're done.
A number of serious thinkers and good writers have written for the Spectator over the years. It's possible for a serious person to write for an unserious publication. (I have to keep telling myself that, since I wrote a couple of things for Salon.) But at some point it's fair to ask a writer why they are associating with a particular publication. I propose that we begin to ask that of anyone writing for the American Spectator — by email, by Twitter, by whatever medium available. Take, say, Ben Stein. You're an in-print and on-screen tough guy, Ben. Why would you continue to write for an institution that acted this way? Just asking.
I wrote to the American Spectator and its Managing Editor seeking comment, but did not receive a reply. I would like to ask them some questions. Did they even attempt to find someone to offer a vigorous First Amendment defense? Did they pay Kimberlin money — money he will use to sue other critics? If they think they faced liability risk, what particular statements of fact do they think were false? And is this going to be a thing now?
Attorney Mike Meier used to be only a little bit infamous. A few sites like Fight Copyright Trolls criticized him, painting him as someone who used to decry copyright trolling but then switched sides and became a copyright troll.
But those posts were relatively obscure.
Then Meier, whom one senses did not come to the law via rocketry, came up with a cunning plan: he sent DMCA notices complaining about blog posts criticizing him. There were several problems with these notices: (1) he sent them to the sites' registrars rather than their hosts, (2) he used them to complain about defamation, which is not covered by the DMCA, and (3) he complained about uses of his images that were clearly, on their face, fair use.
The natural and probable result of Meier's flailing attack was widespread infamy. His targets Fight Copyright Trolls and Extortion Letters ridiculed his hamfisted efforts. Those posts were picked up, and gleefully discussed, by far bigger sites including The Consumerist, BoingBoing, TorrentFreak, Techdirt, and others. The number of people who have read negative things about him has gone up by a couple of orders of magnitude. Some of the past unpleasantness he has experienced — like the time a federal court excoriated him in a sanctions order, or the time he stipulated to a reprimand by a state bar — have reached a far wider audience.
But Mike Meier's legal threat was not foolish just because it exposed his behavior to more readers. It was foolish because it exposed him widely as a fool. People hire lawyers they trust. They want to be able to rely upon their lawyer's advice, and to make difficult decisions based upon that advice. But who would trust the advice of a lawyer who would engage in a legal tactic that is so foreseeably self-destructive? If Meier had sent the DMCA notices on behalf of a client, I would call it rank malpractice and tell his client to consider suing him. In 2014, minimal legal competence requires an attorney to anticipate and understand the Streisand Effect.
Atavistic metamorphosis proposes that cancer cells are cells that have reverted, evolutionarily, to their ancestral, independent status as unicellular organisms. It is from there that cancer only occurs in plants and animals/humans (multicellular organisms). This also explains why cancer does not occur nor can be induced experimentally in unicellular organisms such as bacteria, fungi and protozoa.
Rain, Rain, falling down
Grey sky shadows, and my sad heart
. . . and so on.
Now, I am not personally offended by improbably-breasted women in comics. I recognize them for what they are: a cultural signal, like golf pants or McDonalds' Golden Arches. Their presence on a book or comic cover signifies that you will encounter nothing unfamiliar or unsettling therein. Anatomically incorrect breasts are the dogs-playing-poker of fantasy art.
Back in February I wrote about a rather despicable lawsuit filed by Japanese-American plaintiffs seeking to remove a statue in Glendale, California commemorating the "comfort women" — women enslaved as prostitutes in World War II by Imperial Japan. The plaintiffs argued that Glendale's statute interfered with the United States' diplomatic relations with Japan, thus violating the Supremacy Clause. I'm pleased to report that United States Judge Percy Anderson — not a judge you want yelling at you, for what it is worth4 — has dismissed the case without leave to amend.
The plaintiffs, you might recall, were represented by megafirm Mayer Brown. This resulted in really awful publicity from Mayer Brown, not just from pipsqueaks like me, but from Above the Law and Marc Randazza. Mayer Brown soon substituted out of the case in favor of a rather smaller firm. Meanwhile, defendant the City of Glendale – ably represented by their City Attorney's Office and by competing megafirm Sidley Austin — filed a motion to dismiss the case, arguing that the plaintiffs were clearly incorrect in arguing that Glendale's comfort women statute interfered with the United States' international relations. The motion is top-notch work; I've uploaded a copy here.
In his ruling, Judge Anderson found that the plaintiffs had not alleged any specific facts — as opposed to conclusions — supporting the notion that a city's monument could interfere with national diplomacy. Absent such facts, the complaint failed. Judge Anderson echoed the argument made by many critics that the plaintiffs' theory would make a wide swath of public monuments vulnerable to litigation:
Any contrary conclusion would invite unwarranted judicial involvement in the myriad symbolic
displays and public policy issues that have some tangential relationship to foreign affairs. For instance,
those who might harbor some factual objection to the historical treatment of a state or municipal
monument to the victims of the Holocaust could make similar claims to those advanced by Plaintiffs in
this action. Neither the Supremacy Clause nor the Constitution’s delegation of foreign affairs powers to
the federal government prevent a municipality from acting as Glendale has done in this instance . . . .
Judge Anderson therefore dismissed the federal claim and declined to exercise jurisdiction over the remaining state law claim. He also found that the City's anti-SLAPP motion was without merit because it was directed to a federal claim: generally speaking state anti-SLAPP statutes can only be used against state claims. That ruling spared Judge Anderson the more difficult question of whether a municipality has speech rights covered by the anti-SLAPP statute.
This is the right result. Plaintiff's claim on behalf of reactionary Japanese political interests were only the appetizer; the main course would have been suits against many Armenian Holocaust memorials, brought on behalf of the Holocaust-deniers of Turkey. Citizens, through their local governments, ought to commemorate history as they see fit.
[Update: see resolution at end of post]
Peak Internet of Colorado offers ISP services to the Pikes Peak region. Russell Petrick tried their services and was disappointed. He says that their speed was consistently below the benchmark they advertised. When Petrick complained, he says that Peak Internet told him he was getting above their stated minimum speed, so he should be happy with the 12 Mbps he was getting, even if it didn't reach the advertised 20 Mbps top speed.
Petrick complained online on Yelp and elsewhere. Peak Internet, an American company that values American ideals like freedom of speech, recognized Petrick's right to complain and responded forthrightly to the complaint. No, wait, Peak Internet strongly disagreed with Petrick's complaints so it responded online with specific facts and circumstances showing how particular elements of Petrick's complaints were untrue.
Wait, no. I forgot. This is America. So Peak Internet sued. They hired attorney Ryan J. Klein of Sherman & Howard and filed a complaint against Petrick in Teller County District Court for defamation and defamation per se. The complaint is here.
Peak Internet's complaint is bare-bones and notably vague and ambiguous. This is how it explains the basis for accusing Petrick of defamation:
The defamatory statements made by Petrick about Peak Internet include, but are not limited to, false statements about the speed of services provided by Peak Internet and responses to complaints about alleged issues with the speed of services provided by Peak Internet.
Notably, Peak Internet does not specify exactly what part of what Petrick said that was false, or exactly how it was false. Remember what I always say: vagueness in defamation claims is a hallmark of meritless thuggery. Here, Peak Internet has used vagueness as a strategy to (1) obscure whether it is suing based in part of protected statements of opinion, (2) hide exactly which statements it contends to be false, avoiding early proof that the challenged statements are true, and (3) increase the costs and pressures of litigation on Petrick to shut him up and deter others from criticizing Peak Internet. You can't tell from the complaint, for instance, whether Peak Internet's argument is "our speeds were never that slow that often, he's lying" (which might be a valid defamation claim) or "his arguments are unfair because these speeds are above the guaranteed minimum speed and we don't promise the top speed all the time" (which would be an invalid attack on a protected opinion).
Peak Internet's ploy may not play out the way they hoped. Already a local news station ran with the story, allowing Petrick to highlight what appears to be well-documented evidence supporting his complaints about the speed.
I wonder: did attorney Ryan J. Klein explain the Streisand Effect to his client Peak Internet before filing the lawsuit?
It's not clear to me whether Petrick has counsel. If he wishes, I would be pleased to light the Popehat Signal to find pro bono counsel. Meanwhile, I think the story of an ISP that sues its customers over criticism is one that needs a little more attention. Do you agree? Have at it.
Thanks to tipster Carl.
Updated to add: commenters here and on Twitter point out that Peak Internet has gotten four abrupt good reviews on July 30 (the day after the local news story), all from first-time reviewers, all praising Peak Internet. No doubt a coincidence.
Mr. Petrick has sought my help. I am lighting the Popehat Signal.
Mr. Petrick is disabled and does not have funds to hire an attorney to defend his free speech rights. Is there a lawyer out there who can help him in Teller County, Colorado?
We have the right to free speech — in theory. In practice, companies like Peak Internet, and lawyers like Mr. Klein, can trammel that right because the system lets them. It can be ruinously expensive to defend even the most transparently bogus and censorious case. To fight this trend of companies suing to remove bad reviews, we need people to step up. Might it be you? If not, will you help spread the word?
Good Update: I am reliably informed that Peak Internet and Mr. Petrick have resolved the case satisfactorily and Peak will be dismissing its case with prejudice — meaning permanently. Congrats to Mr. Petrick, a nod to Peak Internet for making the right decision after the wrong one, and thanks to several Colorado lawyers who offered to help.
It's time for the Popehat Signal — the call for pro bono assistance for a blogger threatened with frivolous and censorious litigation. This time the victim in need of help is Stephanie Yoder of www.twenty-somethingtravel.com. She needs your help to face a thoroughly bogus and repugnant threat by multi-level marketing scheme "WorldVentures."
Ergun Caner was angry.
There he was, a successful man of God: a published author, Dean and President of the Liberty Baptist Theological Seminary and Graduate School, a sought-after inspirational speaker. Suddenly, crass miscreants laid him low. Critics pointed out he told puzzlingly inconsistent stories about his background. Though public records and his own book suggested that he emigrated from Sweden to Ohio at the age of four, in his inspirational speeches he claimed he had been raised in Turkey, learned of America only through television, and trained as an Islamic jihadist.
Perhaps the story of a foreign jihadist converting to Christianity was more inspiring than the story of an Ohioan converting.
Liberty University conducted an investigation and removed him. But though he found new employment, Egun Caner did not view the matter as resolved. He hungered.
In 2013, he filed a federal complaint in Texas against Jason Smathers and Jonathan Autry, men who posted to YouTube two videos of Caner's . . . shall we say imaginative public presentations. Caner claimed violation of a purported copyright in the videos. He sought damages, attorney fees, and an injunction against posting of the videos.
In other words, Caner sued someone for posting proof that he had been telling inconsistent stories about his background — that he is a fabulist.
Jonathan Autry agreed to take the videos down — no doubt because of the ridiculous expense of a lawsuit. That wasn't good enough for Caner, who continued to demand more concessions. That, as it turned out, was a very poor decision. Autry and Smathers, very ably represented pro bono by Josh Autry and Kel McClanahan, filed a strong motion to dismiss, arguing that (1) Caner could not demonstrate that he had a copyright in the videos, and (2) the posting of them to prove Caner's mendacity was classic fair use.
Caner and his attorney did not take this motion very seriously, I think. I would call their opposition brief nasty, brutish, and short, but it's not substantive enough to be nasty or brutish. It's a feeble two-page gesture that ignores most of the motion's arguments.
United States District Judge Norman K. Moon was unimpressed. He granted the motion and dismissed Caner's case in an extremely thorough (and no doubt very embarrassing to Caner) written opinion.5 First the court noted that Caner had conceded that he never filed a copyright application for one of the videos; that's a prerequisite to maintaining a copyright suit. Second, the judge agreed that the posting of the video was classic fair use, because it was a critical non-commercial use designed to impact discussion of Caner's dishonesty. The court made short work of Caner's thoroughly ridiculous arguments: that the defendants were not protected by fair use because it was the work of a "vindictive" "cyber terrorist", that the defendants were "not qualified" to offer criticism of Caner, and that fair use only protects "appropriate criticism from people that are qualified to render those opinions i[n] the market place and exchange of ideas in academia and elsewhere.” This is too much whaarbaargl.
But we haven't even gotten to the good part yet.
Autry, as the prevailing party in a copyright litigation, filed for attorney fees. Last week, in a devastating opinion, Judge Moon granted $34,262.50 in attorney’s fees and $127.09 in costs to Autry's attorneys, agreeing that Caner's litigation conduct warranted it. The review of Caner's conduct is brutal. The court ruled that Caner (1) pursued the case after Autry took the videos down, (2) demanded, as a condition of settlement, that Autry's young children sign a non-disparagement agreement, (3) delayed the case, (4) failed to seek discovery, opposed the motion to dismiss on the grounds that he needed to take discovery, but could not articulate what discovery he needed, (5) contradicted himself, (6) made unreasonable legal arguments without any support (like the "you must be qualified to criticize" argument), and most importantly (7) filed the case to silence criticism:
In this case, Plaintiff filed a copyright infringement suit to stifle criticism, not to protect any legitimate interest in his work. He and his counsel prolonged this litigation, costing Defendant and his attorney valuable time and money. Defendant’s counsel has set aside other
profitable matters to attend to this meritless litigation, and deserves compensation for doing so. Likewise, Plaintiff should be deterred from seeking to use the Copyright Act to stifle criticism in
A-W-E-S-O-M-E, that spells Judge Moon.
Caner has failed utterly, has been exposed for his censoriousness, and has had his dishonestly much more thoroughly documented and widely publicized than it would have been if he had not been such a vindictive jackass.
This should happen more often. As I suggested yesterday, intellectual property claims are increasingly abused to silence criticism. Judges ought to avoid their normal squeamishness about attorney fee awards and hammer the plaintiffs in meritless and censorious cases.
Please join me in congratulating the victorious pro bono team.
I bring good news: top-notch work by generous and dedicated lawyers has produced a free speech victory in Texas.
Last year I lit the Popehat Signal seeking help for J. Todd DeShong, a blogger and AIDS activist. DeShong, a longtime critic of the nutty and conspiratorial junk science occasionally directed at AIDS issues, ran afoul of Clark Baker, an ex-cop and full-blown AIDS denialist who offers "expert" "witness" services. You may recall my description of Baker's phone call to DeShong's mother:
I interviewed Mr. DeShong's mother, a sweet lady with a spine of Texas steel. She told me about how Mr. Baker called her out of the blue and ranted at her. Mr. Baker angrily denounced her son, and told her that, as a police officer, he knew about dangerous people, and that Ms. DeShong should fear that her son would kill her in her sleep. He also threatened that he was arranging for doctors Mr. DeShong had criticized to sue him for defamation. Ms. Deshong pointed out that such a suit would bring no joy; Todd DeShong is not a rich man. "But you have money, right? You have a house, right?" responded Mr. Baker, implying that he might put her assets at risk. "He thought he could intimidate me. He didn't know who he was dealing with," said Ms. DeShong, who sounds like a good person to have at your back.
Baker sued DeShong in federal court in Texas over DeShong's criticism of Baker's AIDS-denialist rhetoric and his "expert" "witness" service the HIV Innocence Group. Baker claimed that DeShong's criticism was not only defamation, but violation of the HIV Innocence Group's trademark rights in its name. Baker's motive may have been mixed: he may have wanted to silence DeShong, but he may also have wanted to use the federal suit to pursue his conspiracy theories about AIDS researchers. I cannot say what his lawyer was thinking, if he was.
Such federal litigation is ruinously expensive to defend; DeShong couldn't afford a defense and Baker might have succeeded in silencing critics through abuse of the legal system. Fortunately, lawyers who care about free speech rode into the breach: D. Gill Sperlein, Paul Alan Levy of Public Citizen, Gary P. Krupkin, and Neal A. Hoffman filed motions to dismiss (attacking the thoroughly specious trademark claims) and a strong motion under Texas' relatively new anti-SLAPP statute.
Last week the dream team won. United States District Judge Sam R. Cummings granted DeShong's motion to dismiss the trademark claims, and then refused to hear the state law claims and dismissed them. The court's ruling held the line on a key free speech concept: using a company's name to criticize it does not violate the company's trademark in the name. Baker had claimed that sites like "HIV Innocence Group Truth" violated trademark rights and were part of an effort to destroy him by discrediting him. But Judge Cummings pointed out "[n]o reasonable person would take one look at DeShong's website and believe that Baker authorized its content." Moreover, the court explained, trademark law doesn't protect a company from criticism. The Lanham Act protects a competitor from profiting from the misuse of another company's trademark; it does not protect a company from vigorous and even ruinous criticism employing its name. Judge Cummings also rejected Baker's argument that DeShong violated trademark rights by using a URL likely to dominate search results for "HIV Innocence Group." That theory, too, would have allowed the Bakers of the world to abuse the Lanham Act to prevent criticism.
I suspect Paul Alan Levy, who has done a lot of important work protecting "gripe sites" and critics from bogus trademark claims, had a strong hand in winning this issue.
Having dismissed the federal trademark claim, Judge Cummings declined to exercise supplemental jurisdiction over the state claims like defamation, finding that state issues (like application of Texas' anti-SLAPP statute) would predominate over federal issues. Therefore he didn't reach the anti-SLAPP motion. That's an increasingly common approach by federal judges in such cases; it's what the judge did in the censorious Naffe case in which I was co-counsel.
Baker has appealed, and could conceivably re-file his censorious screed in Texas state court. If he does, the dream team's work on the anti-SLAPP motion is already done, and I suspect Baker will find no joy before a Texas state judge. I'd lay very good odds that Baker will lose his appeal. Meanwhile, I hope that DeShong's legal team seeks and recovers legal fees from Baker based on winning the Lanham Act claim. The suit was contemptible and represents exactly the sort of case in which federal courts should use their statutory power to award attorney fees to deter such abuse of the system.
Please join me in expressing admiration and thanks to Gil, Paul, Neal, and Gary. Their generosity with their time and talents didn't just help DeShong's free speech: it helped yours. Contributions like theirs are essential to defending free speech principles in a broken system that allows unscrupulous clients and lawyers to silence dissent by inflicting ruinous defense costs. They are heroes.
UPDATE: Mr. Steyn advises me through Twitter that he has declined appeal of the Anti-Slapp motion to dismiss, because he wishes to conduct discovery against Dr. Mann. That makes the video below something of a wretched abortion, but as the other defendants in the case (Rand Simberg, National Review, and the Competitive Enterprise Institute) are moving forward with the appeal, I leave the video unaltered and unedited. My apologies to Mr. Steyn.
Doe v. Burke is an important decision, handed down last week, on the District of Columbia's Anti-SLAPP statute. The D.C. Circuit Court of Appeals held that an anonymous "John Doe" defendant, sued for libel over internet comments concerning an attorney in a high-profile lawsuit, could immediately appeal the District Court's denial of a motion to quash a subpoena aimed at discovering his identity. The Court went further, and dismissed the suit against Doe entirely. You may read the Burke decision here:
This is a significant case. Defamation plaintiffs thinking of using D.C. as a venue for strategic lawsuits against public participation should think twice. We've previously covered D.C.'s Anti-SLAPP law, extensively, in the lawsuit filed by climate scientist Michael Mann against journalists Mark Steyn and Rand Simberg. You may find our coverage here, and here. As Steyn, Simberg, and their co-defendants are appealing the denial of their Anti-SLAPP motion to dismiss against Mann, we've invited a guest who is expert in the law of defamation to comment on the case:
In our last episode of the saga of Michael Mann's defamation suit against National Review, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg, I explained that the matter was wrapped in a dry, but crucial, procedural issue: the District of Columbia Court of Appeal was faced with whether a defendant who loses a motion under D.C.'s anti-SLAPP law may appeal immediately, or must wait until the end of the case.
As I argued, the strategic implications are dire for defamation plaintiffs and defendants: if anti-SLAPP denials are not immediately appealable than much of the value of the statute is lost to defendants, but if they are immediately appealable then defendants may often delay defamation cases for years.
On Wednesday6 the D.C. Court of Appeal decided to decide, probably. That is, they issued an order denying Mann's motion to dismiss the appeal, and accepting all of the amicus briefs on the issue, and directing the parties to brief the issue of appealability along with the merits of the anti-SLAPP issue. On the one hand, this signifies that the Court didn't think that the procedural issue was completely obvious, and therefore didn't dismiss the appeal or accept it without reservation. On the other hand, the Court still wants to hear more arguments about whether it should be hearing more arguments. The Court also ordered that the appeal be expedited, which means something somewhat different than you or I mean when we say "expedited."
The upshot: the defendants (save for Mr. Steyn, who apparently is not joining this appeal) will get to brief their arguments that Mann's lawsuit should have been dismissed under D.C.'s anti-SLAPP statute. Mann will get to re-make his argument that the appeal should be dismissed because the defendants shouldn't be able to appeal until the end of the case. The Court will then either punt by dismissing the appeal as premature, or agree that D.C. anti-SLAPPs are immediately appealable and address the anti-SLAPP merits.
Stay tuned. The First Amendment and anti-SLAPP issues in the case are very important, and I hope the Court reaches them.
I've collected, under this tag, my posts about Michael Mann's defamation lawsuit against National Review, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg.
The lawsuit is back to the District of Columbia Court of Appeal upon the National Review's denial of their renewed anti-SLAPP motion. The key issue currently presented is a procedural one that will strike many non-lawyers as irritatingly dry, obscure, and removed from the heart of the case: when a District of Columbia court denies an anti-SLAPP motion under DC's anti-SLAPP statute, can the losing party appeal immediately, or do they have to wait until the end of the case?
Though seemingly procedural, the question has such a substantive impact that it transforms how anti-SLAPP statutes work and how effective they are at stopping and deterring frivolous suits.
Stand by while I put you in a coma with my lawsplaining.
Steve Stockman is a Republican Member of Congress from Texas currently running for Senate on the "should we impeach President Obama" platform. Steve Stockman's angry. Not Texas-shoot-someone-or-wear-stupid-hats angry. Suing angry.
Stockman has recently sued Texans for a Conservative Majority over their campaign ads and communications against them. He says they're guilty of some of the most "outrageous, malicious defamation ever recorded in Harris County." Stockman complains that the defendants defamed him by saying that he was "jailed more than once," that he was "charged with a felony," and that he violated ethics rules.
There are a number of problems with this suit.
First problem: as a public figure, Stockman will have to prove that the defendants made false statements against him with actual malice — meaning knowing that they were false or with reckless disregard to their truth or falsity. But as the Dallas Morning News reports, Stockman previously admitted to newspapers that he had been jailed several times and charged with a felony:
Tonight, Rep. Steve Stockman accused a group that supports Sen. John Cornyn of lying about him, by asserting that he had been “jailed more than once” and was “charged with a felony.”
That is strange, because Stockman has admitted to these facts, several times.
“I may have been in jail a couple of times, two or three times,” he told this newspaper.
As for the felony charge, that stemmed from the time his girlfriend hid three Valium tablets in his underpants when he was reporting for a weekend in jail. “When they found that they charged me with a felony,” he told the Houston Chronicle.
I suppose it's possible that Stockman actually means to complain about some other unspecified statements defendants made that don't match things he's already admitted are true. However, as a general rule, if a defamation plaintiff doesn't list a false statement in their complaint, you can predict that either (1) the statement they are complaining about is a non-actionable statement of opinion and they are trying to hide that fact, or (2) it doesn't exist. Remember what we say around these here parts: vagueness in a legal threat is the hallmark of meritless thuggery.
So: it's not clear how the defendants could have committed defamation by repeating something Stockman previously admitted. How can he prove that it's false, let alone that they knew it was false or were reckless about its falsity? Perhaps Stockman means to suggest that it's reckless to take a Member of Congress at his word, an argument with some appeal. Or perhaps Stockman's argument about the ethics charges has merit.
Next problem: in his complaint, Stockman repeatedly argues that truth is not a defense to saying these things about him:
Even if true, which it is not, truth is not a defense to this statement.
That's pure bullshit, and the attorney who asserted it is either dishonest or an idiot. "Whether the plaintiff is a public figure or not, falsity is always an element of the cause of action, and truth is an absolute defense to defamation. See Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964) (public figure); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 768–69, 106 S.Ct. 1558, 1559, 89 L.Ed.2d 783 (1986) (private figure); Bentley v. Bunton, 94 S.W.3d 561, 580 (Tex.2002) (public figure); Turner v. KTRK Television, Inc., 38 S.W.3d 103, 116 (Tex.2000) (public figure); McIlvain v. Jacobs, 794 S.W.2d 14, 15–16 (Tex.1990) (private figure)." Pardo v. Simons, 148 S.W.3d 181, 186 (Tex. App. 2004). The Supreme Court recently reaffirmed this.
The defendants ought to introduce Steve Stockman and his lawyer to Texas' new and vibrant anti-SLAPP statute, get the case dismissed, and get attorney fees. People considering whether to vote for Stockman ought to bear in mind that (1) someone nominally a member of a party that decries frivolous lawsuits is suing people for saying things about him that he's already said about himself, and (2) someone who takes an oath to uphold the Constitution is stating, falsely and moronically, that the Constitution lets him sue people for saying true things.
He sounds overqualified for the Senate.
Back in 2012 I wrote about Michael Mann's lawsuit against National Review Online, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg. There's been plenty of water under the bridge since then — the defendants have filed and lost a motion under Washington D.C.'s anti-SLAPP statute, appealed unsuccessfully, re-filed it as a result of procedural hijinks too dull to discuss here, and lost again.
My view of the case is unchanged. I think the statements Mann attacks are best viewed as opinions expressed through vivid rhetoric and hyperbole, rather than statements of literal fact susceptible to defamation analysis. That view is strengthened by the steady progress of the law since 2012 in cases like Cox v. Obsidian Finance, which I discussed last month.7 The tone and rhetorical flair of the statements, the places they were published, and their entire tenor strongly suggest they were argumentative opinions rather than falsifiable statements of fact. Therefore, they ought to be absolutely protected by the First Amendment. In this I agree with Jonathan Adler and Dan Farber.
Quite frankly I also think that the lawsuit is part of a larger effort to conduct the climate change debate by other means, including lawfare — part of the effort to label certain viewpoints as so unacceptable that they do not deserve full legal protection. As an example of the tone I am talking about, consider a cartoon in today's New York Times:
Mann's case may still be resolved on the grounds that he's complaining about protected opinions rather than defamatory statements of fact. Moreover, Mann may not be able to prove that the statements were false, or if they were false, that they were uttered with the requisite mental state. I will not dwell on that point; I'm scientifically illiterate.
I will, however, dwell briefly on Mark Steyn's disastrous response.
First, Steyn is representing himself — he characterized it as "firing" the well-qualified firm that was representing him. Such a defense can be ruinously expensive, and I'm sure that cost was one factor, but as you'll see it doesn't appear that it was the only one.
Second, Steyn has used the opportunity of defending himself to engage in what can only be described as pro-se antics. He's attacking the judges and the system both in print and in legally feckless and argumentative court filings. Is it Steyn's First Amendment right to rail against the judges associated with his case? Of course it is. May a pro se litigant file a motion as a vehicle to rant about the case as a whole, and the law, and society, and the universe at large? Sure. But while such behavior is viscerally satisfying, it tends to produce bad results. Judges are human, as are their law clerks.
As readers may have deduced from my absence at National Review Online and my termination of our joint representation, there have been a few differences between me and the rest of the team. The lesson of the last year is that you win a free-speech case not by adopting a don't-rock-the-boat, keep-mum, narrow procedural posture but by fighting it in the open, in the bracing air and cleansing sunlight of truth and justice.
Third, Steyn has now answered Mann's complaint and filed two counterclaims against Mann seeking $10 million. Steyn's answer and counter-claims are here. The counter-claims are, to put it mildly, problematical. Steyn doesn't state clearly what causes of action he is asserting, but his text suggests he is suing Mann for suing him, and for threatening to sue him and others, and for chilling speech by issuing legal threats. There are many problems with this legal theory. Among them: the litigation privilege generally prevents you from suing people for suing you, or for things they say in the lawsuit. The exception is the tort of malicious prosecution, but to sue someone for malicious prosecution you first must show that you won the case. Steyn hasn't won the case, and can't sue for malicious prosecution. (This is exactly why "I'm counter-claiming against you for suing me!!!" is something you generally only see from pro se litigants. It doesn't end well for them.) Moreover, the litigation privilege often covers threats to sue, treating them as part of the litigation as a whole.8
The bottom line is this: Mann's threats and litigation may well be privileged — immune from suit. If that's the case, then Mann may be able to respond to Steyn's counter-claims with an anti-SLAPP motion of his own. He may win, which would not only require Steyn to reach into his pocket for Mann's legal fees, but would hand Mann a huge and dramatic propaganda victory.9 I know California's anti-SLAPPP statute and litigation privilege well, but I am not an expert on District of Columbia law. But my review of the law suggests that Steyn's counter-claims are, at a minimum, a very risky gambit. Perhaps there is some theory behind them with a sound basis in law; perhaps Steyn is getting competent legal advice. But I am skeptical.
Mark Steyn seems very frustrated and impatient with the flaws and delays of the legal system, and how it has failed to dismiss what appears to be a censorious lawsuit attacking opinion. It's not unreasonable to be frustrated and angry. It's not unreasonable to say that our legal system ought not require this priest caste of lawyers to navigate lawsuits attacking our fundamental rights. It's not unreasonable to say that such things are outrageous, and the public ought to know about them. But it is unreasonable to expect to be able to navigate the existing complex legal system without training and experience. It is unreasonable to expect publicly castigating your judges to produce favorable results. It is unreasonable to expect angry pro se behavior to produce something other than angry pro se results. You can argue that things ought to be different. I do. But, in terms of producing a good result in a particular case, such arguments are like quarreling with the barrel of a gun.
I support the defendants, including Steyn, in their defense of Mann's censorious lawsuit. I would donate to a Steyn defense fund. I would, if asked, try to round up pro bono support for Steyn — though he is a much, much bigger fish in this bloggy ocean that I am and ought not need my help. I've supported Steyn's efforts against censors for years. But I can't support what appears to be either a grand mal seizure of self-indulgence or an ill-considered piece of performance art. Steyn's approach to this makes it significantly less likely that this case will produce a result favorable to free speech. That hurts not just him, but his codefendants and everyone who might face a censorious and politically motivated lawsuit. If Steyn's antics help Mann win, censors everywhere will be emboldened. I hope someone with Mark Steyn's ear convinces him to stop treating this as a show trial.