Tagged: SLAPP

Popehat Signal: Vengeful AIDS Denialist Sues Critic In Texas

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

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 Degree1, 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'

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

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

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

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.2 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?

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!

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.

 

Victory For Blogger Patterico In Free Speech Case

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

Prenda Law Is Under Withering Fire From All Sides

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.

(more…)

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

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.

(more…)

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

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.

(more…)

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

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!

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

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.