Tagged: SLAPP

Protecting The Free Speech of Censors: The Crystal Cox Saga

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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.

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D.C. Circuit: First Amendment Trumps Birthers, Stupid People, Walruses

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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:

Ken

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!

"Yellow Journalist" Loses Defamation Lawsuit, Showing Need for Anti-SLAPP Statutes

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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.

Arizona Water Supplier Johnson Utilities Sues Homeowner Over Criticism

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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.

Cathy Gellis Wins Pro Bono Victory Against U.K. Defamation Subpoena

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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.

So You've Been Threatened With A Defamation Suit

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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.1

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:

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Popehat Signal: Vengeful AIDS Denialist Sues Critic In Texas

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It's time for the Popehat Signal.

New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

New Popehat Signal courtesy of Nigel Lew. Thanks, Nigel!

Today I light the signal to ask for help for a blogger who is being sued in federal court in Fort Worth for writing about and criticizing a thoroughly creepy AIDS denialist. By AIDS denialist, I mean someone who promotes the belief that HIV does not cause or lead to AIDS. The lawsuit is contemptible. The defendant needs help. Can you step up?

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Lori Kilchermann Is A Yellow Journalist

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There are two ways to define "yellow journalist." You could define it traditionally, to to refer to a journalist who exploits, exaggerates, or distorts the news in service of sensationalism. Or you could interpret "yellow" to mean contemptibly craven.

Based on her conduct, Lori Kilchermann — an editor at the Ionia, Michigan Sentinal-Standard — is at least one of those.

Kilchermann is suing some citizens who said she met the first definition.

The dispute arises from a story in the Ionia Sentinel-Standard entitled "Four Arrested In Farmhouse Meth Bust." Kilchermann was the editor at the time. The Sentinel-Standard had an angle on the meth bust: it happened at a farmhouse that had hosted a Republican fundraiser. The paper's staff also chose a photo of the Republican fundraiser:

The photo — taken two years earlier at an Ionia Republican Party event, which was attended by then-candidates Rick Snyder and Brian Calley — showed a woman, Kristy Cuttle, who was arrested and later pleaded guilty in the meth case.

It also showed four people not connected to the bust — Cuttle’s husband, who had died since the photo was taken, two retired teachers and a woman who helped organize the campaign event.

Several citizens objected, met with Kilchermann, and wrote letters and Facebook posts and emails characterizing her conduct as "yellow journalism." Whether it was or not is a matter of opinion, particularly given the flexibility of the term.

But Kilchermann, a journalist who relies professionally on robust free speech, the protections of the First Amendment, and the right of all Americans to express their opinion, responded bravely with the remedy of more speech.

Oh, wait.

No she didn't.

Kilchermann, represented by Carrie Gallagher of Duff Chadwick & Associates, sued, claiming defamation, Butthurt in the First Degree2, and tortious interference with business relationships. Her complaint, which I have uploaded here, is explicitly premised on the notion that it is defamatory to say Kilchermann is a "yellow journalist" or that that she "editorializes the news," and that by — among other things — encouraging people to stop subscribing to the Sentinel, the defendants have wrongly interfered with her "business expectancies."

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.

Did the Sentinel — and its editor Kilchermann — engage in editorializing and yellow journalism by emphasizing a meth bust's ties to partisan politics? That's a matter of taste. The complaint says that the paper "believed" that the connection was newsworthy — a word that merely underlines that it's a matter of opinion. I find the incident banal rather than shocking. But complaining about it — and calling for the paper and its editors and writers to experience social consequences — is core speech protected by the First Amendment.

Whether or not Kilchermann is a "yellow journalist" in the sense of bias, her lawsuit marks her as a "yellow journalist" in the sense of despicable moral cowardice and betrayal of American values. Rather than speak out to refute criticisms of her work — rather than use the remedy of more speech, and respect the protections that makes her profession possible — Kilchermann has chosen to demand that the court system punish people who state their opinions of her in a way that hurts her feelings.

I sought a comment from Ms. Kilchermann's attorney, and did not get a response. Within a few hours of my tweet to Kilchermann's Twitter handle @LoriKilchermann, she shut down the account. Yellow indeed.

How can you possibly trust, or respect, a journalist who thinks that she has a right to be protected from negative opinions of her journalism? How can you possibly respect, or trust, the newspaper that continues to enjoy the protections of the First Amendment even as its editor seeks to deny those protections to others?

Criticize Your Dentist? That's a Jailin'

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

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

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OMICS Publishing Group Makes A Billion Dollar Threat

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

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

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

Lawyer, please.

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

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

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

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

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

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

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

Rakofsky Versus The Internet: Advantage, Internet

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Remember Joseph Rakofsky? He's the brand-new lawyer who thought it was prudent and appropriate to attempt, as his first trial, the defense of a man accused of murder. Havoc ensued. A federal judge granted Rakofsky's request to withdraw, which coincided with the defendant's request for a new lawyer, and granted a mistrial. In doing so the judge said that in the alternative he would have granted a new trial based on Rakofsky's incompetence:

I must say that even when I acquired [sic -- probably "inquired of"] Mr. Deaner [the defendant], I — as to whether or not, when the Court found out through opening, at least near end of the opening statement, which went on at some length for over an hour, that Mr. Rakofsky had never tried a case before. And, quite frankly, it was evident, in portions of the trial that I saw, that Mr. Rakofsky — put it this way: I was astonished that someone would purport to represent someone in a felony murder case who had never tried a case before and that local counsel, Mr. Grigsby, was complicit in this.

It appeared to the Court that there were theories out there defense theories out there, but the inability to execute those theories. It was apparent to Court that there was a — not a good grasp of legal principles and legal procedure of what was admissible and what was not admissible that inured, I think, to t detriment of Mr. Deaner. And had there been — If there had been a conviction in this case, based on what I had seen so far, I would have granted a motion for a new trial under 23.110.

So I am going to grant Mr. Deaner's request for new counsel. I believe both – it is a choice that he has knowingly and intelligently made and he understood that it's a waiver of his rights. Alternatively, I would find that they are based on my observation of the conduct of the trial manifest necessity. I believe that the performance was below what any reasonable perrson could expect in a murder trial.

And later in that hearing . . .

And I think that the – As I said, it became readily apparent that the performance was not up to par under any reasonable standard of competence under the Sixth Amendment.

This was widely reported, resulting in Rakofsky suing a ridiculous array of news outlets and lawbloggers, and stubbornly pursuing those claims in what became known as "Rakofsky versus the Internet."

Last week he lost — a judge granted motions to dismiss his case. That represented two major victories last week for Marc Randazza, who not only represented many lawbloggers in Rakofsky's case, but also crushed infamous copyright troll Righthaven on appeal. This will not make him any easier to live with.

Rakofsky's lead argument was that he was defamed because his detractors reported that a judge had declared a mistrial based on his incompetence, when in fact the judge had declared a mistrial based on the defendant's request and had only said that in the alternative he would have granted a mistrial based on Rakofsky's incompetence. The correct rejection of this argument is a good example of the substantial truth doctrine, also known as the "gist" or "sting of it" doctrine — the rule that says that a statement isn't defamatory if the main insulting thrust of it is true. So, if you accuse me of molesting squirrels in a public park, and I sue you for defamation on the grounds that my companion was a chipmunk and I was in the storm drain adjacent to the park, my defamation suit against you should not survive. (Unless, I suppose, we live in a community where squirrels are held in high esteem but chipmunks are generally despised.) Here, it was patently ridiculous for Rakofksy to maintain that the "mistrial resulting from incompetence" story was meaningfully misleading or false. The trial judge was brutally frank in his evaluation of Rakofsky's ability, and trial judges don't just go around letting defendants change lawyers mid-trial for no reason.

There are a few lessons to learn from this regrettable affair.

1. Our legal system is so broken that it can take years to resolve even the most patently vexatious, harassing, and incompetently prosecuted lawsuits like this one.

2. Rakofsky doubled down. Had he slunk away after his grave error in judgment, giving thanks that his rashness did not lead to someone being convicted, he might have learned the trade, become a competent lawyer, and overcome a brief flurry of bad publicity. Instead, he chose to file a vexatious lawsuit. Now he belongs to the ages. He will never, in the half a century he has left to him, live this down.

3. Yielding to censorious thuggery like Rakofsky's is harmful to your reputation. Cowardly and unprincipled University of St. Thomas School of Law, I'm looking at you. You yielded to a frivolous suit and taught your students and alumni a terrible lesson about being a lawyer and a citizen. You encouraged vexatious and speech-chilling litigation. Let your cringing suckitude be proclaimed throughout the land.

4. Judge Wright's photon torpedo salvo notwithstanding, most judges are reluctant to award sanctions even against conduct that richly deserves it. Here the judge declined to award sanctions against Rakofksy. I'm inclined to agree with Scott that Rakofsky's youth, inexperience, and nationwide humiliation probably stayed the judge's sanctioning hand.

5. If you want the law to be an instrument of self-actualization, start a blog. Law practice — the profession of providing services to clients who need you — is not your personal voyage of self-discovery and empowerment. If you practice as a lawyer, you owe it to your clients only to do the things you are competent to do. Embarking on the defense of a man accused of murder as your first trial is a moral and ethical outrage. Regrettably, the profession is barraged with eager voices telling us that attracting clients with puffery and keywords and Twitter accounts is the way to build a practice. Nobody's reminding us that you have an obligation to know what you're doing before you accept the client. Somebody should.

Popehat Signal: Seeking Help In A Troublesome Massachusetts Defamation Case

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The Popehat Signal

It's time for the Popehat Signal. I'm looking for attorneys admitted in Massachusetts to represent both named and anonymous online commenters. They've been sued by a man named Jonathan Graves Monsarrat based on a series of LiveJournal posts and comments.

Monsaratt's lawsuit is here. You can see LiveJournal threads talking about the lawsuit here and here.

The lawsuit targets posts and comments about Monsarrat's January 2010 arrest. Various sources reported that police arrested Monsarrat when they found him at a loud Somerville party that featured (gasp) underaged drinking. The charges against Monsarrat were later dismissed. Monsarrat was already known locally. Some of his fame was benign — he ran a whimsical message board called the "Wheel of Questions" where people could leave notes and have them answered. Some of his fame, on the other hand, was not positive. In 2003 the MIT and Harvard student papers reported complaints by participants in a Harvard-MIT-Wellesley matchup program he created and operated; participants asserted that Monsarrat chose people he wanted to meet from the matchup he was running and persistently contacted them in a way they found harassing. He was quoted thus:

Monsarrat, who also participated in the matchup service, said that he had heard of complaints about his personal use of data from the service, but said “I kind of don’t get that. I signed up like everybody else. There was no privacy policy.”

These reports led to a certain amount of internet infamy, including an unflattering entry on Encyclopedia Dramatica.3 Monsarrat filed a DMCA notice against Encylcopedia Dramatica seeking to remove among other things, pictures of him they posted in the course of ridiculing him.

When Monsarrat's arrest broke in 2010, people began writing about it, and him, and his past, on LiveJournal. People writing about it referred to past stories about him in connection with the matchup incident, and other critiques of him. As is common online, many criticisms were vivid and accusatory and hyperbolic. That's the basis of Monsarrat's suit against two named defendants (a blogger and a poster on LiveJournal) and multiple anonymous commenters.

Monsarrat's complaint cites some statements made about him which, if untrue, could be defamatory. So why do I think this case is worthy of the Popehat Signal? It's because the complaint is overtly censorious and abusive of the legal process in multiple ways.

First, the complaint jumbles allegedly false statements of fact together with clear statements of opinion and insulting rhetoric. The former can be defamatory; the latter is protected by the First Amendment.

Second, the complaint jumbles together numerous defendants and suggests that they are all jointly responsible for each others' words. But under Section 230 of the Communications Decency Act content providers — like bloggers — can't be held liable for the words of their commenters. Moreover, Monsarrat's conspiracy theory appears to be a method to target people for protected speech (like insults or statements of opinion) on the theory that the protected speech was connected to non-protected speech (like false accusations of fact). Practically speaking, that theory means if you post an insult or opinion about someone in a thread that also contains a false statement by someone else, you could be sued for conspiracy to defame. The chilling effects are obvious.

Third, the complaint suggests that bloggers, and commenters, cannot report and comment based on stories published in newspapers. There can't be any dispute that a local paper reported on Monsarrat's arrest and that student papers reported on the matchup incident. Misstating what's in those articles can be defamatory, but suing people for repeating what was published in the paper — without any basis for asserting they knew it was false — seems overtly censorious, and faces substantial legal barriers.

Fourth, Monsarrat cites some commenters merely for linking to other sites, like Encyclopedia Dramatica and the Harvard student paper. But there is — thankfully — an emerging legal consensus that linking to content does not constitute republication of that content for defamation purposes.

Fifth, for some reason, it appears that Monsarrat has waited to the very ragged edge (if not beyond) of Massachusetts' three-year statute of limitations for defamation actions. That does not support the assertion that he was actually harmed; it appears tactical.

Sixth, Monsarrat's non-defamation causes of action appear highly dubious. His "common law copyright" claim is based on uses of content that are clearly intended to critique or satirize. His commercial claims seem to rely on the highly dubious proposition that the defendants were involved in commercial activity. In short, the other claims appear to be a kitchen-sink approach. And, of course, there's Butthurt In the First Degree, also known as Intentional Infliction of Emotional Distress.

The Streisand Effect may yield results that Monsarrat will regret. He needs to prove that the things said about him are untrue. A lawsuit like this seems designed to generate widespread publicity and encourage any witnesses that might support the defendants to come forward.

The complaint is highly vulnerable to attack. The named defendants need legal help. One of them — Ron Newman — helps maintain a LiveJournal community. Like many Americans, he's out of work, and like almost all Americans, he'd find it impossible to fund the defense of a lawsuit. Lawsuits are ruinously expensive to most folks — which is exactly why merely the threat of a defamation suit can silence people, and why plaintiffs can abuse the legal system to chill expression.

Someone may have uttered false and genuinely defamatory words against Monsarrat; I don't know. I do know that defamation cases — particularly ones where the plaintiff is pursuing extravagant legal theories that threaten everyone's speech — are best resolved with vigorous and capable counsel on both sides. Here Monsarrat's complaint, whatever elements of merit it might have, is framed in a way that should be of grave concern to anyone who values freedom of expression and opposes legal bullying.

So: if you are a Massachusetts lawyer, please consider helping the named defendants. I suspect that First Amendment lawyers across the country will be willing to offer support and advice. In addition, the anonymous commenters require counsel to help them oppose discovery calculated to pierce their anonymity.

Thanks, as always, for standing up to defend free speech.

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

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

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

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

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

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

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

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Be Aware That You Have Threatened, Tried To Blackmail And Accused Our Company Of SCAM With Your E-mail!

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We get letters.

This week we heard from a reader who, to protect her privacy, I'll refer to as Rapunzel. Rapunzel had a bad experience with a piece of jewelry she'd ordered from an online merchant. It seems that Rapunzel had ordered a necklace, which she expected to look like this:

Television Whopper

What actually arrived looked like this:

Actual Whopper

But by the time this reached me, the necklace was not Rapunzel's problem. This is not a post about cheap cosmetic jewelry.

This is a post about baseless threats of suit to suppress a dissatisfied customer's speech, spurious allegations of crime, stalking, and  the most bone-headedly aggressive  customer service department on the entire world wide web.

"A bunch of mindless jerks who'll be the first against the wall when the revolution comes." — Douglas Adams.

This is a post about alwaysinfashion.com, the "Online Store of Polish & Russian Amber and Murano Glass Jewelry," whatever that is.

Now ordinarily I would not lift a finger to assist someone who had purchased a trinket online and found its appearance … something less than what was advertised. I would politely commiserate, then point out that I charge more to make one telephone call than the trinket is worth.

To her credit, Rapunzel did not seek my assistance in getting a refund. She had dealt with that herself. After sending an inquiry, she found that the company's return terms (a refund only if the offending merchandise is shipped first-class mail to Italy, at the buyer's expense) were unsatisfactory, and advised the company that she would write a negative review of the product, and her experience with the company.

That's when things got weird. That's when Rapunzel received this email, from "sales" at alwaysinfashion.com:

Mrs. Rapunzel,

We are a reliable and well known company and people on the internet talk about Us very positively.

You have received the items that You have ordered and paid for, that is it.

Thousands of customers are happy for the quality of our products and for our professionalism and We must suppose that You agreed with them since You have decided to place on order from our company.

Be aware that You have threatened, tried to blackmail and accused our company of Scam with your e-mail. This something really serious and inacceptable therefore We will send a copy of your e-mail and all your data to our lawyers.

If You keep on with your defamations and write anything on blogs, forums or social networks, We will immediately start a lawsuit against You.

Sales Department
Alwaysinfashion.com (Emphasis in original)

This email brings several thoughts to mind.

First, it's good to know that Ignatius J. Reilly is alive and well, and working in customer service.

Second, the circular logic that leads alwaysinfashion.com to suppose that Rapunzel, a first time customer, "must have agreed" with the thousands of customers happy for the quality of its products and professionalism, before she ever received a product, is breathtaking.

Third, my co-blogger Ken has said, rightly, that vagueness is one of the hallmarks of a poor legal demand. When the threatening party cannot identify a specific defamatory statement, that's a sign of bullying and bluster. In this case, alwaysinfashion.com goes one better: The company threatened Rapunzel with litigation before she wrote a single word about its product.

Fourth, well, you'll see…

"When the going gets weird, the weird turn pro." — Hunter S. Thompson.

After receiving alwaysinfashion's thug-missive, Rapunzel replied, stating she would communicate with the company no more, but asserting her right to express her honest opinion of the product, as well as the fact that alwaysinfashion had threatened to sue her, to others. I believe she has done so at this point.

Later this week, unsolicited, this popped into Rapunzel's in-box.

Mrs. Rapunzel,

These are the facts:

1)You placed an order of two Amber necklaces ATN002 (realized with irregular beads softly rounded in matte and cognac color) promptly shipped and delivered to You.

2)You liked so much Our Amber necklaces that You have tried to get another couple for free adducing unfounded reasons.

3)After Our denial, your opinion about Our products and Our company suddenly changed:  Our necklaces became “sub par” items and We became scammers.

Objectively if You feel yourself victim of a scam, the only logical thing to do is to ask for product return instructions and surely not to ask for other two pieces of the same item. You also asked for an expedited shipping since you:” really wanted to have this amber for the trip”.

Moreover your scam allegations are based on your personal idea that beads color is  an evidence of Amber quality. Please show Us your credentials as jewelry expert or send Us a copy of the  documentation that certify your statements.

Mrs. Rapunzel You can be sure that We will leave reviews and post on social networks about your blackmail and threatens and We surely inform about this matter all the companies You work for in Oklahoma [REDACTED BY PATRICK]

This is our last warning to You Mrs. Rapunzel: If You keep on with your defamations and write false reviews or lies on blogs, forums or social networks, We will immediately start a lawsuit against You.

This is our last e-mail and We assure You, Mrs. Rapunzel that the next communication will be sent from Our lawyers along to a claim for damages.

Sales Department

Alwaysinfashion.com

Believe it or not, there is a charitable interpretation of this email.

I will assume, charitably, that the mastermind behind alwaysinfashion.com's sales team learned English as a second language.

And one could assume, charitably, that alwaysinfashion's threat to "leave reviews and post on social networks about your blackmail and threatens" is a poorly phrased way of stating, "We will post detailed rebuttals of your online criticisms of our products."

If one were charitable.

I'm not charitable, because the following threat, to contact Rapunzel's employer concerning her "blackmail and threatens," showing that alwaysinfashion had gone so far as to google Rapunzel and name an employer, is extortion in the moral sense of the word if not the legal: a threat to accuse Rapunzel falsely of a crime, and to jeopardize her livelihood, all in order to suppress her speech.

"This aggression will not stand, Dude." — Walter Sobchak.

By this time Rapunzel had contacted Popehat. Where initially she had considered alwaysinfashion's threats to be bluster, that the company had taken the trouble to search her employment history, in a dispute over a cheap piece of jewelry, was so off-the-rails scary that she felt she needed help.

Yesterday I sent the following email to "sales" at alwaysinfashion.com:

Dear Sir or Ma'am.

I am writing to inquire whether a series of threatening emails sent to your customer Ms. Rapunzel concerning Ms. Rapunzel's request to return an amber necklace represent your company's typical customer service.

As I believe you are aware, Ms. Rapunzel recently purchased an amber necklace from your website. She was dissatisfied with the quality of the product. She asked to return the necklace for a full refund. When you informed that she would have to pay shipping costs to return the product at her own expense, Ms. Rapunzel advised she would mention that fact, and her overall dissatisfaction with the quality of your merchandise, in a review of the product.

In response, you sent Ms. Rapunzel an email which contained the following threat:

Be aware that You have threatened, tried to blackmail and accused our company of Scam with your e-mail. This something really serious and inacceptable therefore We will send a copy of your e-mail and all your data to our lawyers.If You keep on with your defamations and write anything on blogs, forums or social networks, We will immediately start a lawsuit against You.

Later this week, although Ms. Rapunzel had not contacted you in the meantime, you wrote her again, threatening to contact a former employer about this situation, and to "leave reviews and post on social networks about your blackmail and threatens."

I write for a weblog known as Popehat, which can be read at www.popehat.com. We write occasionally on legal issues, as well as free speech and threats to free speech. I am an attorney, as are several of my fellow writers. Although I do not represent Ms. Rapunzel as her attorney, I do find it troubling that you would threaten a lawsuit against Ms. Rapunzel simply for exercising her right to express her honest opinion.

I plan to write about this situation. Before I do so, I would like to offer you the opportunity to comment on the situation. If my understanding of the facts is incorrect, please let me know. I would also appreciate it if you could answer the following questions:

1) How has Ms. Rapunzel "blackmailed" your company? Has Ms. Rapunzel threatened or attempted any criminal action against you, as opposed to expressing her honest opinion of the product and what appears, to me as well, to be atrociously poor customer service?

2) Is it usual for alwaysinfashion.com to contact employers of customers who complain about the quality of its merchandise?

3) Is it usual for alwaysinfashion.com to threaten to accuse customers who complain about the quality of its merchandise of crimes on "social networks"?

4) Do you understand that, in the United States as in most free nations, Ms. Rapunzel has an absolute right to express honest opinions, and to write honest reviews, of products and of merchants such as alwaysinfashion.com?  If you do understand this, on what basis do you threaten to sue Ms. Rapunzel?

5) Are you familiar with the term "Streisand Effect"?

For your reference, here are some posts we've written in the past at Popehat about people and companies who baselessly threaten litigation against others who, like Ms. Rapunzel, are simply expressing the truth or honest opinion:

[snipped]

Finally, while I do not represent Ms. Rapunzel at this time, I am an attorney. Naturally I know many attorneys, in California (where your company appears to base its American operations) as well as in Ms. Rapunzel's state of Oklahoma, and around the nation. I do want you to know that in the event alwaysinfashion, or any of its affiliates, files a baseless lawsuit against Ms. Rapunzel for exercising her constitutional right to free speech, we will do everything in our power to see that Ms. Rapunzel is afforded counsel who will vigorously protect her rights, including, if necessary, filing motions for sanctions under appropriate state law to recover her attorney's fees and costs.

I look forward to your response.

Patrick at Popehat

I've sent that email multiple times, with and without links. As of today my emails have been returned as undeliverable or have not generated a response.

I can't say whether alwaysinfashion will follow through on its threats to sue Rapunzel, but that isn't the point. By promising a suit, and by promising to contact her employers, alwaysinfashion has already shown it's willing to use the chilling effect of threatened litigation (and worse) to silence her.

All that I can do at this point is to speak for her, and to encourage her to continue to speak. I'll be the first to admit that I know nothing about jewelry, but even if I did, and I knew enough to say that alwaysinfashion sells the finest Baltic amber jewelry on the planet, I wouldn't use one of their necklaces to wring a chicken's neck.

Stupid defamation threats like those issued by alwaysinfashion, issued before an aggrieved customer even writes a review, threats of extrajudicial terror such as contacting employers, can and should be publicized far and wide. Alwaysinfashion's customers, and its potential customers, deserve to know that if they have a poor experience with the company and complain about it, they may receive the Rapunzel treatment: threatened litigation and threats to employment.

Caveat emptor.

sirenUPDATE: ALERT! ALERT! ALERT!

A representative of Always In Fashion has favored us with a reply.

But the reply raises more questions than it answers and, if possible, makes the company look worse.

 

Today In Unusually Stupid Legal Threats: You Can't Write About Me Because of Your Blog's Name!

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

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

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