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.1 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 Wednesday2 the D.C. Court of Appeal decided to decide, probably. That is, they issued an order denying Mann's motion to dismiss the appeal, and accepting all of the amicus briefs on the issue, and directing the parties to brief the issue of appealability along with the merits of the anti-SLAPP issue. On the one hand, this signifies that the Court didn't think that the procedural issue was completely obvious, and therefore didn't dismiss the appeal or accept it without reservation. On the other hand, the Court still wants to hear more arguments about whether it should be hearing more arguments. The Court also ordered that the appeal be expedited, which means something somewhat different than you or I mean when we say "expedited."
The upshot: the defendants (save for Mr. Steyn, who apparently is not joining this appeal) will get to brief their arguments that Mann's lawsuit should have been dismissed under D.C.'s anti-SLAPP statute. Mann will get to re-make his argument that the appeal should be dismissed because the defendants shouldn't be able to appeal until the end of the case. The Court will then either punt by dismissing the appeal as premature, or agree that D.C. anti-SLAPPs are immediately appealable and address the anti-SLAPP merits.
Stay tuned. The First Amendment and anti-SLAPP issues in the case are very important, and I hope the Court reaches them.
I've collected, under this tag, my posts about Michael Mann's defamation lawsuit against National Review, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg.
The lawsuit is back to the District of Columbia Court of Appeal upon the National Review's denial of their renewed anti-SLAPP motion. The key issue currently presented is a procedural one that will strike many non-lawyers as irritatingly dry, obscure, and removed from the heart of the case: when a District of Columbia court denies an anti-SLAPP motion under DC's anti-SLAPP statute, can the losing party appeal immediately, or do they have to wait until the end of the case?
Though seemingly procedural, the question has such a substantive impact that it transforms how anti-SLAPP statutes work and how effective they are at stopping and deterring frivolous suits.
Stand by while I put you in a coma with my lawsplaining.
Steve Stockman is a Republican Member of Congress from Texas currently running for Senate on the "should we impeach President Obama" platform. Steve Stockman's angry. Not Texas-shoot-someone-or-wear-stupid-hats angry. Suing angry.
Stockman has recently sued Texans for a Conservative Majority over their campaign ads and communications against them. He says they're guilty of some of the most "outrageous, malicious defamation ever recorded in Harris County." Stockman complains that the defendants defamed him by saying that he was "jailed more than once," that he was "charged with a felony," and that he violated ethics rules.
There are a number of problems with this suit.
First problem: as a public figure, Stockman will have to prove that the defendants made false statements against him with actual malice — meaning knowing that they were false or with reckless disregard to their truth or falsity. But as the Dallas Morning News reports, Stockman previously admitted to newspapers that he had been jailed several times and charged with a felony:
Tonight, Rep. Steve Stockman accused a group that supports Sen. John Cornyn of lying about him, by asserting that he had been “jailed more than once” and was “charged with a felony.”
That is strange, because Stockman has admitted to these facts, several times.
“I may have been in jail a couple of times, two or three times,” he told this newspaper.
As for the felony charge, that stemmed from the time his girlfriend hid three Valium tablets in his underpants when he was reporting for a weekend in jail. “When they found that they charged me with a felony,” he told the Houston Chronicle.
I suppose it's possible that Stockman actually means to complain about some other unspecified statements defendants made that don't match things he's already admitted are true. However, as a general rule, if a defamation plaintiff doesn't list a false statement in their complaint, you can predict that either (1) the statement they are complaining about is a non-actionable statement of opinion and they are trying to hide that fact, or (2) it doesn't exist. Remember what we say around these here parts: vagueness in a legal threat is the hallmark of meritless thuggery.
So: it's not clear how the defendants could have committed defamation by repeating something Stockman previously admitted. How can he prove that it's false, let alone that they knew it was false or were reckless about its falsity? Perhaps Stockman means to suggest that it's reckless to take a Member of Congress at his word, an argument with some appeal. Or perhaps Stockman's argument about the ethics charges has merit.
Next problem: in his complaint, Stockman repeatedly argues that truth is not a defense to saying these things about him:
Even if true, which it is not, truth is not a defense to this statement.
That's pure bullshit, and the attorney who asserted it is either dishonest or an idiot. "Whether the plaintiff is a public figure or not, falsity is always an element of the cause of action, and truth is an absolute defense to defamation. See Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964) (public figure); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 768–69, 106 S.Ct. 1558, 1559, 89 L.Ed.2d 783 (1986) (private figure); Bentley v. Bunton, 94 S.W.3d 561, 580 (Tex.2002) (public figure); Turner v. KTRK Television, Inc., 38 S.W.3d 103, 116 (Tex.2000) (public figure); McIlvain v. Jacobs, 794 S.W.2d 14, 15–16 (Tex.1990) (private figure)." Pardo v. Simons, 148 S.W.3d 181, 186 (Tex. App. 2004). The Supreme Court recently reaffirmed this.
The defendants ought to introduce Steve Stockman and his lawyer to Texas' new and vibrant anti-SLAPP statute, get the case dismissed, and get attorney fees. People considering whether to vote for Stockman ought to bear in mind that (1) someone nominally a member of a party that decries frivolous lawsuits is suing people for saying things about him that he's already said about himself, and (2) someone who takes an oath to uphold the Constitution is stating, falsely and moronically, that the Constitution lets him sue people for saying true things.
He sounds overqualified for the Senate.
Back in 2012 I wrote about Michael Mann's lawsuit against National Review Online, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg. There's been plenty of water under the bridge since then — the defendants have filed and lost a motion under Washington D.C.'s anti-SLAPP statute, appealed unsuccessfully, re-filed it as a result of procedural hijinks too dull to discuss here, and lost again.
My view of the case is unchanged. I think the statements Mann attacks are best viewed as opinions expressed through vivid rhetoric and hyperbole, rather than statements of literal fact susceptible to defamation analysis. That view is strengthened by the steady progress of the law since 2012 in cases like Cox v. Obsidian Finance, which I discussed last month.3 The tone and rhetorical flair of the statements, the places they were published, and their entire tenor strongly suggest they were argumentative opinions rather than falsifiable statements of fact. Therefore, they ought to be absolutely protected by the First Amendment. In this I agree with Jonathan Adler and Dan Farber.
Quite frankly I also think that the lawsuit is part of a larger effort to conduct the climate change debate by other means, including lawfare — part of the effort to label certain viewpoints as so unacceptable that they do not deserve full legal protection. As an example of the tone I am talking about, consider a cartoon in today's New York Times:
Mann's case may still be resolved on the grounds that he's complaining about protected opinions rather than defamatory statements of fact. Moreover, Mann may not be able to prove that the statements were false, or if they were false, that they were uttered with the requisite mental state. I will not dwell on that point; I'm scientifically illiterate.
I will, however, dwell briefly on Mark Steyn's disastrous response.
First, Steyn is representing himself — he characterized it as "firing" the well-qualified firm that was representing him. Such a defense can be ruinously expensive, and I'm sure that cost was one factor, but as you'll see it doesn't appear that it was the only one.
Second, Steyn has used the opportunity of defending himself to engage in what can only be described as pro-se antics. He's attacking the judges and the system both in print and in legally feckless and argumentative court filings. Is it Steyn's First Amendment right to rail against the judges associated with his case? Of course it is. May a pro se litigant file a motion as a vehicle to rant about the case as a whole, and the law, and society, and the universe at large? Sure. But while such behavior is viscerally satisfying, it tends to produce bad results. Judges are human, as are their law clerks.
As readers may have deduced from my absence at National Review Online and my termination of our joint representation, there have been a few differences between me and the rest of the team. The lesson of the last year is that you win a free-speech case not by adopting a don't-rock-the-boat, keep-mum, narrow procedural posture but by fighting it in the open, in the bracing air and cleansing sunlight of truth and justice.
Third, Steyn has now answered Mann's complaint and filed two counterclaims against Mann seeking $10 million. Steyn's answer and counter-claims are here. The counter-claims are, to put it mildly, problematical. Steyn doesn't state clearly what causes of action he is asserting, but his text suggests he is suing Mann for suing him, and for threatening to sue him and others, and for chilling speech by issuing legal threats. There are many problems with this legal theory. Among them: the litigation privilege generally prevents you from suing people for suing you, or for things they say in the lawsuit. The exception is the tort of malicious prosecution, but to sue someone for malicious prosecution you first must show that you won the case. Steyn hasn't won the case, and can't sue for malicious prosecution. (This is exactly why "I'm counter-claiming against you for suing me!!!" is something you generally only see from pro se litigants. It doesn't end well for them.) Moreover, the litigation privilege often covers threats to sue, treating them as part of the litigation as a whole.4
The bottom line is this: Mann's threats and litigation may well be privileged — immune from suit. If that's the case, then Mann may be able to respond to Steyn's counter-claims with an anti-SLAPP motion of his own. He may win, which would not only require Steyn to reach into his pocket for Mann's legal fees, but would hand Mann a huge and dramatic propaganda victory.5 I know California's anti-SLAPPP statute and litigation privilege well, but I am not an expert on District of Columbia law. But my review of the law suggests that Steyn's counter-claims are, at a minimum, a very risky gambit. Perhaps there is some theory behind them with a sound basis in law; perhaps Steyn is getting competent legal advice. But I am skeptical.
Mark Steyn seems very frustrated and impatient with the flaws and delays of the legal system, and how it has failed to dismiss what appears to be a censorious lawsuit attacking opinion. It's not unreasonable to be frustrated and angry. It's not unreasonable to say that our legal system ought not require this priest caste of lawyers to navigate lawsuits attacking our fundamental rights. It's not unreasonable to say that such things are outrageous, and the public ought to know about them. But it is unreasonable to expect to be able to navigate the existing complex legal system without training and experience. It is unreasonable to expect publicly castigating your judges to produce favorable results. It is unreasonable to expect angry pro se behavior to produce something other than angry pro se results. You can argue that things ought to be different. I do. But, in terms of producing a good result in a particular case, such arguments are like quarreling with the barrel of a gun.
I support the defendants, including Steyn, in their defense of Mann's censorious lawsuit. I would donate to a Steyn defense fund. I would, if asked, try to round up pro bono support for Steyn — though he is a much, much bigger fish in this bloggy ocean that I am and ought not need my help. I've supported Steyn's efforts against censors for years. But I can't support what appears to be either a grand mal seizure of self-indulgence or an ill-considered piece of performance art. Steyn's approach to this makes it significantly less likely that this case will produce a result favorable to free speech. That hurts not just him, but his codefendants and everyone who might face a censorious and politically motivated lawsuit. If Steyn's antics help Mann win, censors everywhere will be emboldened. I hope someone with Mark Steyn's ear convinces him to stop treating this as a show trial.
"Never miss a good chance to shut up." "If you find yourself in a hole, stop digging." "It's not the crime, it's the cover-up." "First, do no harm." These familiar sayings all carry the germ of the same simple but true idea: when you're in a jam, it's easy to make it worse, so try not to.
Plano, Texas attorney Carl David Ceder ought to familiarize himself with that rule.
This is how the rule of law works: we extend rights to the very people who would deny us those rights if they had the chance.
Ariel Castro imprisoned young women in his basement without anything resembling due process, but he got a lawyer and his days in court until he thoughtfully offed himself. We protected the Nazis' right to march at Skokie, and say what you want about the tenets of National Socialism, dude, but it doesn't protect the free speech or assembly rights of others. We protect the right of Fred Phelps' family to protest at funerals even though the America of Phelps' dreams is a theocratic hellhole.
So it shouldn't be any surprise that we protect the free speech rights of the disturbed and vengeful blogger Crystal Cox, even though she abuses the legal system in an effort to censor and retaliate against people for criticizing her.
That's how we roll.
Last week the United States Court of Appeals for the Ninth Circuit upheld Crystal Cox's First Amendment rights, and in doing so protected yours, and mine, in important ways. This post is about that decision, and about what Crystal Cox was doing to undercut the First Amendment while the Ninth Circuit was thinking about it. As you will see below, I am one of the people Cox has tried to silence with frivolous litigation even as courts were protecting her right to speak.
The United States Court of Appeal for the District of Columbia Circuit today handed a victory to Esquire Magazine and a bitter defeat to Joseph Farah of WorldNet Daily and author Jerome Corsi, who are widely known as critics of the Obama Administration, conspiracy theorists, birthers, and repeat sexual abusers of walruses.
Equire's victory, and Farah's and Corsi's salty defeat, ended a defamation lawsuit Farah and Corsi brought against over a satirical article lampooning Corsi's book "Where's the Birth Certificate? The Case that Barack Obama is not Eligible to be President, With Comments On How Walruses," which Farah was publishing and distributing to his (for want of a better word) readers. The article portrayed Farah and Corsi deciding to withdraw and pulp the birther expose on the grounds of inaccuracy:
In an exclusive interview, a reflective Farah, who wrote the book's foreword and also published Corsi's earlier best-selling work, Unfit for Command: Swift Boat Veterans Speak out Against John Kerry and Capricorn One: NASA, JFK, and the Great "Moon Landing" Cover-Up, said that after much serious reflection, he could not go forward with the project. "I believe with all my heart that Barack Obama is destroying this country, and I will continue to stand against his administration at every turn, but in light of recent events, this book has become problematic, and contains what I now believe to be factual inaccuracies," he said this morning. "I cannot in good conscience publish it and expect anyone to believe it."
In an odd detour, Esquire's article also reported upon a 2010 incident in which Farah and Corsi, visiting an aquarium during a World Net Daily team-building exercise, rushed the stage during a children's show and began sexually abusing a performing walrus to the gasps and horrified screams of onlookers. "TAKE THAT KENYAN FASCIST," Farah and Corsi reputedly screamed, although the aquarium's presenter had specified that the walrus was indigenous to the Pacific. Esquire writer Mark Warren speculated that the outburst was spurred by the revelation that the walrus was named "Barry."
Although Esquire updated the story to explain that it was satirical, at least as to the book, Farah and Corsi sued, claiming that many booksellers and retailers had taken the story literally and that their sales had suffered as a result and that a recent excursion to Sea World had been "tense." The federal trial court granted Esquire's motion to dismiss Farah's and Corsi's complaint, finding that the article was clearly satirical — and therefore not a statement of fact subject to defamation analysis — and that the court could take judicial notice under Federal Rule of Evidence 201 that Farah and Corsi were in fact sexual abusers of walruses because, in the words of that rule, that fact "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned."
Today the D.C. Circuit affirmed that decision. The court explained that only false facts can be defamatory under the First Amendment. Whether satire can be taken as a statement of fact — as opposed to ridicule — must be determined based on how a reasonable reader familiar with the full context would take it:
To determine whether Esquire’s statements could reasonably be understood as stating or implying actual facts about Farah and Corsi and, if so, whether those statements were verifiable and were reasonably capable of defamatory meaning, the “publication must be taken as a whole, and in the sense in
which it would be understood by the readers to whom it was addressed.” Afro-American Publ’g Co. v. Jaffe, 366 F.2d 649, 655 (D.C. Cir. 1966) (en banc). “[T]he First Amendment demands” that the court assess the disputed statements “in their proper context.” Weyrich, 235 F.3d at 625. Context is critical because “it is in part the settings of the speech in question that makes their . . . nature apparent, and which helps determine the way in which the intended audience will receive them.” Moldea II, 22 F.3d at 314. “Context” includes not only the immediate context of the disputed statements, but also the type of publication, the genre of writing, and the publication’s history of similar works. See Letter Carriers, 418 U.S. at 284–86;
Moldea II, 22 F.3d at 314–15.
Farah and Corsi argued that the story should not be treated as satirical because (1) some people took it literally, and (2) it did not state that it was satire until Esquire supplemented it, and (3) it did not include overt signs of satire. The court disagreed, finding that explicit disclaimers of satire were not required, and that circumstances — including Farah's and Corsi's reputation as birthers and notorious walrus-fuckers — made the satirical nature of the piece adequately clear to someone familiar with them:
With that baseline of knowledge, reasonable readers of “The Politics Blog” would recognize the prominent indicia of satire in the Warren article. Most notably, the very substance of the story would alert the reasonable reader to the possibility that the post was satirical. The essence of the fictitious story was that Farah, a self-described leader (along with Corsi) of the movement to challenge President Obama’s eligibility to serve, see Appellants’ Br. 31, had suddenly and without any warning
decided to recall and “pulp” the Corsi book the very day after it was released. The supposed basis for this decision was President Obama’s earlier release of his long-form birth certificate; yet that release occurred three weeks before Corsi’s book was published, and, as Farah acknowledges, he and Corsi remained (and still remain) committed to the book even after that event. See Compl. ¶¶ 11, 17. After the release of the birth certificate, Farah appeared on MSNBC and published more than 40 articles on WorldNetDaily continuing to promote the book. See Findikyan Decl. Exs. 7, 21, 22–25; Farah, 863 F. Supp.2d at 32. The day of the Corsi book’s release — the day before Esquire posted its fictitious story — WorldNetDaily announced the publication on its website with an article entitled, “It’s out! The book that proves Obama’s ineligible: Today’s the day Corsi is unleashed to tell all about that ‘birth certificate.’”
Findikyan Decl. Ex. 26. It is inconceivable that Farah would reverse course so abruptly, as Esquire’s fictitious story claimed. Readers of “The Politics Blog” would have recognized that the article was “reporting” events and statements that were totally inconsistent with Farah’s and Corsi’s well-publicized views, and could not reasonably have taken the story literally.
The court also noted that satire does not lose its protection just because some people take it literally; rather, that is the nature of satire:
But it is the nature of satire that not everyone “gets it” immediately. For example, when Daniel Defoe first published The Shortest Way with the Dissenters, an anonymous satirical pamphlet against religious persecution, it was initially welcomed by the church establishment Defoe sought to ridicule. See JAMES SUTHERLAND,ENGLISH SATIRE 83–84 (1958). Similarly, Benjamin Franklin’s “Speech of Miss Polly Baker,” a fictitious news story mocking New England’s harsh treatment of unwed mothers, was widely republished in both England and the United States as actual news. See MAX HALL, BENJAMIN FRANKLIN &
POLLY BAKER:THE HISTORY OF A LITERARY DECEPTION 33–35, 87–88 (1960).
First Amendment rights, in other words, are limited neither by the skill of the writer nor the stupidity of a particular audience.
In short, the D.C. Circuit agreed with the trial court that because reasonable readers could not take the Esquire article about stating facts about Corsi's and Farah's book, the article could by definition not be defamatory. The Court made shorter work of the walrus issue, terming it "regrettable" and "more suited for state court, or possibly for some sort of televised court." Ultimately the court rejected Corsi's and Farah's walrus-related claims, ruling that even if the trial court erred in taking judicial notice of their odobenusophile habits, the evidence was sufficient to support the judgment:
Appellants take issue with the portion of the Esquire article suggesting that they were "repeat" abusers of walruses. The trial court did not err here. Even if the evidence of the San Diego Incident were insufficient, the 2010 Aquarium Incident technically demonstrates repeated conduct, as the testimony was that Corsi and Farah took a hiatus mid-attack to purchase Dippin' Dots from a vendor. (RT 124.) Moreover, Farah's objection that there was no evidence that he was attempting to cause sexual gratification to the walrus — and, indeed, clear and convincing evidence that he lacked the capacity to do so — is immaterial, as that is not an element of the offense under the relevant animal cruelty statute. We will not address Corsi's and Farah's claim that the walrus in the 2010 Aquarium Incident was actually a seal "foisted upon the public in a deception of historical proportions," as they did not brief that issue below. Finally, we note that damages are an element of defamation. Even if Farah and Corsi had shown that they were falsely accused of sexually assaulting a walrus — and they have not — they have not presented evidence that being associated with such conduct would harm their reputation amongst their audience of World Net Daily Readers. Indeed, Esquire offered evidence to the contrary. See Trial Record at 350 (Federal complaint by O. Taitz asserting that walrus was part of civil rights conspiracy against her); 387 (Tweet by T. Kincannon asserting walrus was sexually promiscuous and part of "thug culture"), 411 (J. Taranto column calling for walrus to be deported).
Corsi's and Farah's defamation claim was fundamentally a SLAPP suit, and it's a good thing that it failed. Courts should protect satire broadly.
Hat tip (except for the walrus part) to Alison Frankel.
UPDATED TO ADD:
World Net Daily has a very angry post up about this decision, followed by comments that are, to the extent I could follow them, also very angry. They wouldn't approve my comment posting a link to this post. So I had to send my message by other methods:
When will courts protect your rights?
As long as Obama is in office, not any time soon.
Lamentably he controls the courts through his sycophants.
Really it's time for someone to do something about it.
Unfortunately not enough people grasp the problem.
Soon, though, they will.
Strong Americans will speak up and take action.
Everyone will take note.
X-men will seem weak compared to an informed American electorate!
Back in July I wrote about how Lori Kilchermann — an editor at the Ionia, Michigan Sentinel-Standard — filed a defamation lawsuit against local citizens who complained about her reporting and called her a "yellow journalist." As I explained then, the suit was patently frivolous and abusive because it attacked statements of opinion protected under the First Amendment:
The problem is, of course, that statements of opinion are absolutely protected by the First Amendment when, as here, they are premised on known and disclosed facts. "Yellow journalism" is a classic example of rhetorical flair that is self-evidently opinion because its application is based on issues of fairness and bias on which different observers will differ. "Editorializes the news" is another classic example; show a political news story to partisans of two parties and you'll get two opinions on whether it editorializes.
Via the Huffington Post, I see that a judge has agreed and dismissed Kilchermann's censorious lawsuit. Ionia County Circuit Court Judge Suzanne Hoseth-Kreege dismissed the case, but regrettably failed to award sanctions:
After hearing arguments Friday Hoseth-Kreeger ruled that, as editor of the local paper, Kilchermann is a public figure. Kreeger found the statements by the defendants were opinions and were protected speech under the First Amendment. She also denied a request to impose sanctions against Kilchermann for filing what the defendants say was a frivolous lawsuit.
That means that even though the defendants are off the hook now, they are tens of thousands of dollars poorer. In that sense Kilchermann and her lawyer Carrie Gallagher of Duff Chadwick & Associates PC
succeeded in their effort to abuse the legal system to silence critical speech:
Ken Thompson, one of the defendants, with his wife, Darlene, said they plan to file a request with the state Court of Appeals to have Kilchermann cover their attorney fees. They said the cost of defending the lawsuit is around $30,000.
“We had to pay for justice,” Ken Thompson said Monday, Oct. 14.
Michigan doesn't have an anti-SLAPP statute. Anti-SLAPP statutes generally make it mandatory for the court to award fees and costs to the prevailing defendant. In states without anti-SLAPP statutes, judges are generally reluctant to sanction plaintiffs and their lawyers for censorious lawsuits. That may be from ingrained deference to lawyers, or from a judicial tendency to "split the baby" by granting a motion to dismiss but denying sanctions. This kind of case — in which a patently frivolous lawsuit can cost citizens tens of thousands of dollars without ready recourse — highlights the need for robust anti-SLAPP statutes in every state.
People make mistakes. A legal threat in response to an insult could be a mistake, uttered in the heat of the moment. If the threatener later retracts the threat and apologizes, it may be appropriate to forgive and forget. But a lawsuit is not a temporary mistake. It's a deliberate and prolonged course of action. Here, Lori Kilchermann — putatively a journalist, relying on the protections of the First Amendment — attempted to silence critics through a frivolous lawsuit, and stuck to her guns when defendants pointed out the patent flaws in her case. Nobody should ever take Lori Kilchermann seriously as a journalist again, and we should question the judgment of any journalistic institution that employs her.
Emily Hughes of Pinal County, Arizona was unhappy with her water quality and the services of her water provider, Johnson Utilities. She complained vocally and participated in groups devoted to criticizing Johnson Utilities.
They're suing her for it.
Johnson Utilities — which has a history of suing its critics for defamation — and its owner George H. Johnson have filed a defamation lawsuit against Hughes demanding $100,000. Johnson Utilities claims among other things that Hughes must have staged a local news interview in which her tapwater ran yellow in order to defame their good services. Alternatively, they claim, the yellow water was a result of her own bad heater or pipes, not their services. They further argue that Hughes is part of some sort of conspiracy to harm Johnson Utilities because she supports a local mining project they oppose. It's . . . colorful.
But Johnson Utilities' complaint is very curious. It seems almost calculated to draw a First Amendment or anti-SLAPP attack.
First, much of the complaint is consumed with setting forth clearly protected activities:
9. Since early 2013, Defendant has repeatedly expressed extreme hostility towards Plaintiffs.
10. Defendant has repeatedly harassed Plaintiffs as a result of such hostility.
11. At some point in late 2012 or early 2013, Defendant participated in forming and/or joined a group called "Citizens Against Johnson Utilities."
12. This group,was renamed the "San Tan Valley Safe Water Advocates" in or
about August of2013. Both Citizens Against Johnson Utilities and the San Tan Valley
Safe Water Advocates are hereinafter referred to as the "Group."
13. During her involvement with the Group, Defendant has repeatedly issued disparaging statements concerning Plaintiffs.
14. Indeed, Defendant has taken every opportunity to disparage and harm Plaintiffs' interests, and has engaged in a ceaseless vendetta against Plaintiffs.
15. The Group has hosted a Facebook page which has been accessible to an undetermined number of individuals.
16. Defendant has made numerous disparaging postings on this Facebook page concerning Plaintiffs.
That's all classic protected speech under the First Amendment with no hint of how it might be defamatory. Later, Johnson Utilities does cite a few statements of fact which, if proved false, might be defamatory (for instance, the claim that Hughes somehow staged the yellow water interview). But the complaint also focuses on specific statements that are clearly protected as opinion:
"George Johnson does not run an honest business."
Plaintiff Johnson Utilities, LLC "isn't exactly forthright with us."
On June 30, 2013, Defendant falsely stated on the Group's Facebook page
14 that Plaintiff Johnson Utilities, LLC's water was "smelly yesterday."
In other words, Johnson Utilities has used its complaint to attack not just a few potentially defamatory false statements of fact, but a wide array of statements of opinion and classic protest activities.
That's not even the oddest thing.
Arizona has a fairly modest anti-SLAPP statute. An anti-SLAPP statute, as our readers know, allows a defendant in a defamation case to file an early motion forcing the plaintiff to prove that it can prevail over the defendant's First Amendment defenses. In a state with a good anti-SLAPP statute, you don't have to wait until summary judgment or trial to show that the plaintiff is trying frivolously to censor you — you can force them to support their claims at the start of the case, and get attorney fees if they fail.
I say that Arizon's anti-SLAPP statute is modest because it's much narrower than statutes in California and Texas. In those states you can file a motion when a complaint attacks any protected speech. In Arizona — as in some other states — you can only file an anti-SLAPP motion if you've been sued based on petitioning the government:
A. In any legal action that involves a party's exercise of the right of petition, the defending party may file a motion to dismiss the action under this section. . . . .
B. The court shall grant the motion unless the party against whom the motion is made shows that the moving party's exercise of the right of petition did not contain any reasonable factual support or any arguable basis in law and that the moving party's acts caused actual compensable injury to the responding party.
It would be rather easy for Johnson Utilities to avoid application of the Arizona anti-SLAPP statute by focusing only on statements not made in the course of petitioning the government. Instead, bizarrely, Johnson Utilities has decided to emphasize that Hughes was petitioning the government, portray it as sinister, and complain about it:
17. In June of 2013, Plaintiff Johnson Utilities, LLC was going to be appearing before the Arizona Corporation Commission regarding the rates to be authorized for its water and wastewater services.
18. Due to the costs associated with operating the utility (specifically including the costs associated with income tax expenses), Plaintiff Johnson Utilities, LLC intended to request permission from the Arizona Corporation Commission to increase the rates to be charged for such services to take into account those expenses.
19. Defendant had the intent to oppose any rate changes that could be beneficial to Plaintiff Johnson Utilities, LLC.
20. Plaintiff Johnson Utilities, LLC was scheduled to appear before the Arizona Corporation Commission on June 11,2013 at 12:00 P.M. to request the increase in rates.
21. Throughout the spring and summer of2013, Defendant had complained of low water pressure at her residence.
22. In a bid to derail Plaintiff Johnson Utilities, LLC's request for a rate increase, Defendant formulated a scheme to defame and disparage Plaintiff to influence the Arizona Corporation Commission to deny the request.
. . . .
115. Upon information and belief, as a contributing result of Defendant's actions, the Arizona Corporation Commission postponed Plaintiff Johnson Utilities; LLC's rate hearing and delayed the implementation of the requested rate increase.
Put another way, Johnson Utilities just conceded that the speech it is complaining about was part of a campaign to petition the government, and that part of the harm it is complaining about is government action in response to her petitioning, thus admitting that the Arizona anti-SLAPP statute applies. Perhaps there is some sort of deep legal strategy behind that. If there is, it eludes me. Hughes' attorney should consider an anti-SLAPP motion, which would allow an attack on the portions of the complaint that target opinion and protected speech and force Johnson Utilities to offer proof its conspiracy theory about Hughes.
Complaining to a government body about a utility is the classic example of what anti-SLAPP statutes are designed to protect. There's nothing closer to the heart of the statute. Johnson Utilities' requests to the government have generated controversy before. Some citizens specifically complained that Johnson Utilities sues its critics and that such a business should not be trusted. That's a fair argument. Suing consumers over criticism has a cost in credibility with the government and the public, and it should.
Meanwhile, Ms. Hughes has set up a defense fund.
I've previously praised Cathy Gellis, who helped provide pro bono representation to an anonymous satirical blogger menaced by Charles Carreon, and who has guest-blogged here about the Prenda Law debacle.
Time for more kudos.
Last week Cathy — again offering her valuable services pro bono — won a hard-fought free speech battle and succeeded in quashing a subpoena that sought to unmask an anonymous blogger. The blog — the St. Lucia Free Press — wrote critically about the development of a local resort and made accusations of misconduct. One executive — Oliver Gobat — asserted that the St. Lucia Free Press coverage was factually mistaken and defamatory to him. Did he sue in St. Lucia? He did not. You go to St. Lucia to vacation. To find a friendly forum for a defamation claim, you go to the United Kingdom, that haven for libel tourism and abusive defamation laws.
Mr. Gobat wanted to uncover the identity of the person running St. Lucia Free Press. The ISP is in Northern California. So Mr. Gobat sought and obtained from a court in the United Kingdom a discovery order in a rather abbreviated proceeding, then used that foreign court order to purport to subpoena the ISP here in California to discover the blogger's identity.
Cathy Gellis filed a petition and supporting papers seeking to quash the subpoena, attacking (amongst other things) the adequacy of the UK process, the validity of the UK court order in America, and the insufficiently established proposition that the St. Lucia Free Press comments were defamation. Mr. Gobat's lawyers' response was a model of blustering entitled outrage, demanding sanctions against Cathy and excoriating her. How dare she!
She dared, and she won. After Cathy's reply, and a lengthy hearing at which the judge (to quote Cathy) "took the better part of the hour expounding on all the due process problems requiring him to quash the subpoena," the judge quashed the subpoena. Far from granting Mr. Gobat's attorneys' demand for sanctions, the judge granted fees and costs to Cathy.
This is a big win, and an important one. The St. Lucia Free Press may yet have to address, in court, whether its words about Mr. Gobat were false and defamatory. There's nothing wrong with that. But the sequence of events here was very troubling. The United States has emerging legal norms protecting anonymous bloggers and requiring plaintiffs to demonstrate their case has merit before unmasking them. But what happens if a litigant can evade those norms by running to a notorious libel-tourism haven like the United Kingdom — with its increasingly problematical approach to speech and its distinctly pro-plaintiff libel laws — and get a discovery order that they can then enforce in the United States via subpoena? There must be a process to challenge foreign discovery orders so that U.S. courts do not become mere conduits for foreign censorship. Cathy succeeded in using one such process.
As I've said before, our legal system has its good points, but it is also deeply flawed. It permits censorious abuse without imposing adequate consequences on the abuser. It can be ruinously expensive to be a defendant whether or not a claim has merit. Whatever theoretical defenses our laws may provide, only one thing is practically sufficient to defend freedom of expression: the continued willingness of lawyers like Cathy Gellis to step up and offer pro bono services to people who can't afford to defend themselves. She has my thanks and admiration, and I hope she has yours. Kindly spread the word.
Note: this is not legal advice. You pay for legal advice. You should not look for legal advice from the Internet, the place you go to get pictures of ungrammatical cats and theories about why the Belgians are behind 9/11. You should go to a real lawyer to get legal advice suited to your situation and your jurisdiction.
Hi! I'm Ken White. You may remember be from such defamation-related posts as "You can't call a Bigfoot hunter crazy, that's libel!" and "If all critics of dentists go to jail, then only criminals will criticize dentists!"
So. You have a website, or a Facebook page, or you comment on a forum, and somebody just sent you an email saying that they are going to SUE YOU FOR DEFAMATION because of SOMETHING TERRIBLE that you said.6
OMG! OMG! OMG! OMG!
You'll lose your job! Your spouse will divorce you! You'll lose everything and have to eat your pets, even the ones that don't clean themselves properly! You'll be in depositions all day every day and they won't let you leave to go to the bathroom and you'll soil yourself right there in the Aeron chair! You'll have to talk to a lawyer! WHAT WILL YOU DO? WHAT WILL YOU DO?
Okay. First things first: