Browsing the archives for the SLAPP tag.


Popehat Signal: Seeking Help In A Troublesome Massachusetts Defamation Case

Law

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.1 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.

265 Comments

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

Law

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?

Continue Reading »

123 Comments

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

Law, WTF?

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.

 

153 Comments

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

Law

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.

Continue Reading »

127 Comments

Victory For Blogger Patterico In Free Speech Case

Law

Patrick Frey, also known as Patterico, has been living under the cloud of a frivolous, censorious, and thoroughly contemptible SLAPP suit seeking to chill his First Amendment rights.

Today he won.

Background

Since last year it's been my privilege to work alongside the formidable Ron Coleman to defend Patrick pro bono against the federal lawsuit Nadia Naffe filed.

Ron and I filed motions seeking to dismiss Nafe's original federal complaint. In December United States District Court Judge George Wu granted our motion to dismiss, but without prejudice — that is, he gave Naffe once chance to amend to see if she could state a valid claim.

We moved to dismiss her amended complaint on a variety of theories. Today we won. Judge Wu's tentative ruling with the meat of his decision is here, and his order of today confirming his tentative is here.

The Issues and The Ruling

I'm not going to explain the legal issues at length. I attached all the pleadings from the first round of briefing before, and the pleadings this time are below. If you want to get a sense of the case, I recommend reading our anti-SLAPP motion, our Motion to Dismiss under Rule 12(b)(6), and Judge Wu's order.

In brief: Naffe sued Frey for a violation of civil rights by the state under 28 U.S.C. Section 1983 (on the frankly ridiculous and disingenuous theory that he blogs as a Deputy District Attorney rather than as a private citizen), invasion of privacy through public disclosure (because Frey published on his blog deposition transcripts that were available in public court records online), false light invasion of privacy, defamation, intentional infliction of emotional distress, and negligence. In her amended complaint she sued the County of Los Angeles on a theory of negligent supervision. She originally sued Patrick's wife for no discernible reason, and sued the former District Attorney of the County; this time it was just Patrick and the County. She had two theories of why she could be in federal court: because there was a federal question (her Section 1983 claim) and because there was diversity of citizenship (she's in Massachusetts, Frey's in California; diversity requires different states and at least $75,000 in damages).

We filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) (which argues, essentially, that even if everything in the complaint were true, she hasn't described a legal wrong), an anti-SLAPP motion under California law (arguing that her state law claims were attempts to censor speech, and that she could not succeed on them), a motion to dismiss her state law claims under Rule 12(b)(1) (arguing that she can't show $75,000 in damages, as is required for federal diversity jurisdiction, so there's no jurisdiction over the state law claims if her Section 1983 claim fails), and a motion to force her to post a bond under California law (in California, you can make a plaintiff from another state post a bond to cover costs if you win).

Federal judges tend to be conservative with jurisdiction: that is, they take only cases they must, and address only issues they must. Judge Wu ruled that (1) Naffe can't succeed on her Section 1983 claim — her only federal claim — because she didn't state facts showing that Patrick was a state actor when he was blogging as "Patterico", and (2) he wouldn't exercise jurisdiction over the state law claims, because Naffe failed to show that she suffered at least $75,000 in damages, as required for diversity jurisdiction. Based on those rulings, the judge didn't need to reach the anti-SLAPP motion or the bond motion.

The Result

The result: the Section 1983 civil rights claim is dismissed with prejudice, meaning Naffe can't re-file it. The state law claims are dismissed, but Naffe could re-file them in state court if she wanted. If she does we will file an anti-SLAPP motion there as well — and a motion for sanctions against both her and her attorneys. Naffe has already filed a notice of appeal, suggesting she may pursue an appeal in the Ninth Circuit rather than re-filing in state court. Bring it.

The Conduct of the Case

One of the most frustrating things about the case was that Naffe and her attorneys misrepresented the content of relevant blog and Twitter posts to the Court to suggest that Patrick was purporting to blog in his official capacity as a Deputy District Attorney, when in fact the documents showed the exact opposite. The best summary of what I mean is at pages 9-11 of this brief and page 2-3 of this brief. Even though we made that point very strongly, Naffe — tellingly — did not respond at all in her opposition briefs. It's rather unusual not to answer an accusation that you've attempted to mislead a federal judge Judge Wu noticed it as well. We didn't raise the issue of sanctions, but he did on his own. In footnote 5 he noted:

In paragraph 39 of the FAC [First Amended Complaint] Plaintiff quotes Frey as saying the following: "You owe [O'Keefe] @gamesokeefeiii a retraction. A big one. You'd better issue it promptly. [A threat made as a Deputy District Attorney]." FAC 39. The Court may consider the text of Frey's actual statement in connection with a Rule 12(b)(6) challenge. See Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006), Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001.). Notwithstanding Plaintiff's use of quotation marks, the language "[A threat made as a Deputy District Attorney]" does not appear in Frey's actual comment. See Frey Decl. (Docket No. 40), Exh. KK, at 266. The Court would consider issuing sanctions against Plaintiff and/or her attorneys for the contents of paragraph 39. [emphasis added]

And there's footnote 7. Noting that Frey wrote a tweet saying "My first task is learning what criminal statutes, if any, you have admitted violating," Judge Wu wrote:

In her Opposition brief, Plaintiff characterizes this as "Frey issu[ing] a direct threat against Ms. Naffe with Frey stating that he intended to investigate Ms. Naffe for possible criminal misconduct." Docket No. 53, at 11:18-21. Again, sanctions may very well be in play for Plaintiff's (and/or her counsel's) willingness to play fast-and-loose with the language that is actually at issue here. [Emphasis added]

Though Judge Wu did not ultimately award sanctions, I look forward to quoting those words on appeal or in a state court motion for sanctions if Naffe re-files there.

Closing Thoughts

It's been an honor to represent Patrick pro bono. It's been a privilege to work with and learn from Ron Coleman. I appreciate the opportunity.

Observing commentary on the case has been . . . interesting. I'd divide the coverage into three camps. There are people who are supportive of Patrick, but whose coverage really doesn't delve into the legal issues. There are the vapid and dishonest partisan hacks who attack Patrick for political reasons, and who don't address the legal issues at all. There's the greasy, demi-literate, demented Hutt who wrote an extended quasi-sexual fantasy about a mob murdering Patrick and me. Fun!

There are many people out there who support free speech, so long as it's free speech they agree with. That's not really supporting free speech. It's nice that people on the right supported Patrick's free speech — I wish they all supported vigorous political speech from the left as well. I would also have been happier if more people on the left supported Patrick — or, at least, treated the stark free speech issues presented in the case seriously. I didn't defend Patrick because I always, or usually, or even often agree with him. He's to the right of me politically, and a prosecutor (and therefore reliably wrong on criminal justice issues), and I often disagree with him. I defended him because the First Amendment that lets him speak freely lets me speak as well. I defended him because malicious, frivolous, and politically motivated lawsuits aimed at censorship make it a little more dangerous for each of us to speak. I defended him pro bono because frivolous lawsuits can effectively censor people even when they eventually fail, because the expenses of lawsuits can be ruinous.

If you are happy with this result, and if you are happy that lawyers will represent people pro bono in free speech cases, I ask this favor: next time you have the chance, stand up for the free speech of someone whose views you despise. Speak up and fight back when someone advocates censorship. Respond to the Popehat Signal, or to any of the opportunities out there to support free speech — even speech that angers you. Even if you don't like this result, or you don't like Patrick's politics, or mine, I respectfully challenge you to review the free speech issues in the case. Think about them carefully and ask yourself: could I be accused of defamation and intentional infliction of emotional distress for vigorously challenging someone with whom I disagree?

Thank you.

Appendix: Documents From This Phase Of The Case

Operative Complaint

Nadia Naffe's First Amended Complaint

Patrick's Motions

Anti-SLAPP Motion

Motion To Dismiss Under FRCP 12(b)(6)

Motion to Dismiss For Lack of Jurisdiction Under FRCP 12(b)(1)

Motion For Bond

Declarations and Exhibits

Supplemental Declarations and Exhibits

Request for Judicial Notice

Naffe's Opposition Briefs

Opposition to Motion to Dismiss Under Rule 12(b)(6)

Opposition to Anti-SLAPP Motion

Opposition to Motion to Dismiss for Lack of Jurisdiction Under FRCP 12(b)(1)

Opposition to Request for Bond

Declaration of Nadia Naffe in Support of Opposition Briefs

Patrick's Reply Briefs

Reply In Support of Motion to Dismiss Under Rule 12(b)(6)

Reply in Support of Anti-SLAPP Motion

Reply in Support of Motion to Dismiss for Lack of Jurisdiction Under FRCP 12(b)(1)

Reply In Support of Motion for Bond

Judge Wu's Ruling

Tentative Ruling

Minute Order Confirming Tentative Ruling

53 Comments

Prenda Law Is Under Withering Fire From All Sides

Effluvia

All of my coverage of the Prenda Law saga is collected here.

The Prenda Law crew has been up to shenanigans for many months, and Ars Technica and Techdirt and Die Troll Die and Fight Copyright Trolls were all doing great work covering them long before I took notice. I was preoccupied by crucial legal issues like Bigfoot and ponies and thus-and-such until Prenda Law blundered into my core area of interest: bogus defamation suits calculated to silence critics.

My first post about Prenda explained how Prenda Law and its principals Paul Duffy and John Steele filed three defamation suits in three federal districts against Alan Cooper (the man who accuses Prenda of stealing his identity as a front man for fake plaintiff entities), Paul Godfread (Cooper's lawyer), and various unnamed John Does. I also reported when Alan Cooper seized the initiative and filed counterclaims against Prenda Law and Paul Duffy. Steele shrewdly dismissed his defamation suit in Florida before Cooper could counterclaim.

Today there were updates in the defamation cases — anti-SLAPP motions filed by Godfread and Coooper. In addition, Morgan Pietz — whose defense of John Doe defendants has led to Prenda's downfall — filed his promised supplemental brief before Judge Wright. Meanwhile, in Florida and Arizona and San Francisco, attorneys nip at Prenda's heels.

April is the cruelest month for Prenda. You might want to grab a sandwich; there's a lot going on, and this will take a while.

Continue Reading »

106 Comments

Dr. Bharat Aggarwal's Attorneys Make Bumptious Legal Threats Against "Retraction Watch" Blog

Law

I say it often: vagueness in legal threats is the hallmark of meritless thuggery.

Today, let's look at a case study.

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97 Comments

Alan Cooper Strikes Back, Files Counterclaim Against Prenda Law and Paul Duffy

Law

Prior coverage of Prenda Law is collected here.

Can things get worse for Prenda Law even before the next hearing before Judge Wright?

Yes. Yes they can.

Prenda Law's three censorious defamation suits inspired me to start writing about their shenanigans. Though John Steele dismissed the one he filed in his own name in Florida, two cases remain in federal court in Illinois: one filed by Prenda Law in the Southern District of Illinois, and one filed by Paul Duffy in the Northern District of Illinois. Jordan Rushie posted them here.

As you may recall, among others Prenda's defamation lawsuits target Alan Cooper — nominally an executive of Prenda's clients, but according to him, a victim of identity theft — and Cooper's lawyer, Paul Godfread. Though the suits are very vague, they seem to attack Cooper and Godfread for asserting (both in public and in court) that Prenda has stolen Cooper's identity.

Yesterday, March 21, Cooper and Godfread struck back. They filed answers and counterclaims in both Illinois federal suits.

Continue Reading »

112 Comments

Barbra? Barbra Streisand? Never Heard of Her. Now, Back To My Threat.

Law

Some time ago, one Raphael Golb got in trouble for harassing people about the Dead Sea Scrolls. Everyone, I suppose, needs a hobby. Golb was convicted for actions including sending emails maliciously impersonating Yeshiva University vice provost Lawrence H. Schiffman, creating fake identities and sock puppets to promote his father's research, and generally acting like a dick.

In January Golb's conviction was affirmed. His behavior is odd.

But the behavior of a lawyer purporting to act on his victim's behalf is even odder.

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85 Comments

Ken Matherne Tells Techdirt That Law is Law, Consequences Will Never Be The Same

Law, WTF?

Last week, I described my affectionate correspondence with Ken Matherne of the Global Wildlife Center of Folsom, Louisiana. Mr. Matherne — incensed about a 2010 post I wrote about his defamation suit against a satirical website, informed me that, among other things, (a) I am libel, (b) his airplane is only 10k per hour, (c) his executives has all authority to go until all is done, (d) he doesn't care if I have boyfriends on the side, (e) he is prepared to dp me and have my spouses in dispositions, and so forth.

Mike Masnick at Techdirt picked up on the story and wrote about it. Apparently this did not please Mr. Matherne. Today I see from Techdirt that Mr. Matherne has been writing them, as well. He still has a way with words:

you are saved and wait for me!

What state are you registered in? And if any of your two companies are affiliated – we should start to proceed. My daughter asked me not to last night. But after you new post — I am coming!

Law is the Law !

So take my foundation down out of your harmful and malice posts or I will spend the next 20 years of my life, with every appeal, and every court to see justice.

I think the world would be a better place if more people experienced Mr. Matherne's wisdom. Therefore I declare a Popehat meme-poster contest. Create images incorporating Mr. Matherene's best phrases.

I will choose a winner by some method dictated by my taste for autocracy, and will donate $100 in the winner's name to a charity that supports the First Amendment. I will also send the winner a copy of Greg Lukianoff's excellent book "Unlearning Liberty," which I shall autograph despite not having written it, because I am mentioned in it. I will also draw a picture of a pony on the flyleaf, or have my six-year-old assistant do so.

All that can be yours.

Entry by tipster Pete.  Thanks, Pete!

Entry by tipster Pete. Thanks, Pete!

109 Comments

Prenda Law Researches Streisand Effect, Says "I Gotta Get Me Some Of That"

Law, Law Practice

This is not a Popehat Signal.

Yet.

If you follow online copyright issues, you've probably heard of Prenda Law, a controversial shop that has filed aggressive piracy cases against porn downloaders. Supporters say they vindicate legitimate copyright interests against pirates; detractors argue they rely on speculation in identifying alleged downloaders and practice what amounts to extortion in demanding targets choose between settlement or public identification. You can follow the controversy at sites like Ars Technica or Techdirt or any number of other blogs.

Recently Prenda Law — and the lawyers associated with it — have been accused of various forms of fraud in connection with their litigation strategy, including allegations that they either stole or made up an identity to serve as the corporate representative of one of their plaintiff entities. Prenda Law and its various associated attorneys hotly deny any wrongdoing. But hot denials have not prevented truly astonishing legal spectacles, like a jaw-dropping hearing in Florida or a extremely ominous inquiry by United States District Judge Otis Wright, whose inexorable wrath you should, if at all possible, avoid.

Prenda Law and its associated attorneys — possibly advised by Charles Carreon, possibly advised by someone recently hit quite briskly on the head with a shovel — have elected to manage this situation through broad and aggressive defamation actions in Illinois and Florida. Jordan Rushie collects them here. You can see commentary here and here, amongst many other places.

Prenda Law is pursuing not just Alan Cooper (who asserts that his identity was stolen for use as a bogus corporate representative) and his attorney, but online detractors including Fight Copyright Trolls and Die Troll Die, blogs devoted to criticizing what they regard as "copyright trolls." Prenda Law and its attorneys are also attacking many anonymous commenters and seeking to unmask them.

The lawsuits — which have been removed to federal court — are drafted in a manner that I can only describe as either malicious, reckless, or incompetent. Among their many problems:

1. In attacking Cooper and his lawyer, the complaints conflate things said outside of court (which might be subject to defamation analysis) with things said in court proceedings (which are almost certainly absolutely protected under the litigation privilege).

2. The complaints jumble and conflate statements which might be taken as statements of fact (and therefore might be susceptible to defamation analysis) with statements that are clearly, obviously statements of opinion, rhetorical flourishes, or hyperbole (and therefore cannot be the basis for a defamation claim).

3. Through vague and ambiguous pleading, the complaints seek to hold all defendants (Cooper, his lawyer, web sites, and anonymous commenters) liable for each others' statements, without any apparent basis for doing so. To the extent that the complaints purport to hold web sites liable for the statements of commenters, they run afoul of Section 230 of the Communications Decency Act. To the extent they seek to hold everyone liable for everything bad anyone else said about Prenda, they run afoul of, well, you know, the law.

I do not prejudge whether or not some of the statements cited in the complaints could be non-privileged false statements of fact susceptible to defamation analysis and attributed to people possibly responsible for them. But in my experience, competently pled defamation complaints pursued in good faith do not bury the proverbial pony in such an epic pile of horseshit. If Prenda Law or its attorneys do have legitimate claims of false statements of fact wrongly made against them, they have chosen for some reason to wrap those claims in a nearly impenetrable cloak of ambiguity and citations to clearly non-actionable statements. Rather, competent attorneys draft their defamation complaints in a manner that scrupulously avoids reliance on statements of opinion, rhetoric, or hyperbole in order to avoid motions to dismiss and anti-SLAPP motions. Complaints drafted like these smack of incompetence, lack of self-control, or malice.

Whether or not the lawsuits have any core merit, they are framed as overt attacks on internet anonymity and expressions of pure opinion. Such cases are best resolved when the defendants are represented by vigorous and competent counsel. As a member of the First Amendment Lawyers Association — and a writer concerned with free speech and the strong defense of defamation threats — I will be happy to offer my services by referring concerned bloggers or commenters to organizations that offer legal assistance in such cases or to pro bono counsel. When the time is right, I may put up the Popehat Signal.

Stay tuned.

150 Comments

In Which I Am Threatened With Litigation Including Lengthy "Dispositions"

Law

Back in 2010, I wrote a post about a frivolous lawsuit filed by The Global Wildlife Center of Folsom, Louisiana against the satirical web site Hammond Action News in retaliation for an obviously satirical post about killer giraffes. Global Wildlife Center lost, and the case got some attention from blogs concerned with online free speech.

Today, I received a legal threat purporting to be from Ken Matherne, owner of the Global Wildlife Center. Using people smarter than I (a large set), I confirmed the email came from the Global Wildlife domain. In the email, Mr. Matherne threatens me with litigation and attempts to insult me. It has to be read to be believed.

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265 Comments

Popehat Signal Update: Good Resolution To Steubenville, Ohio Defamation Case

Effluvia, Law

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

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

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

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

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

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

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

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

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

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

A few thoughts and observations:

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

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

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

13 Comments

Vote In The Second Annual Popehat "Censorious Asshat of the Year" Poll

Effluvia

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

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

Here, in reverse chronological order, are the candidates.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[poll id="4"]

 

104 Comments

Time for the Popehat Signal: Help A Blogger Sued For Petitioning The Government

Law

The Popehat Signal

It's time, once again, for the Popehat signal, lit to seek help for a blogger threatened with a censorious lawsuit. I'm seeking national First Amendment counsel and local counsel in Nebraska.

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59 Comments
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