Courtesy of a horde of tipsters, this weekend I heard about a wide-ranging defamation suit filed in state court in Colorado by John Giduck against SocNet — a forum discussing the Special Operations Community — and individuals posting on it.
Multiple real-world court appearances prevent a lengthy discussion today — I will revisit the case later this week. (Why didn't I just blog it thoroughly last night? Well I had a gigantic margarita and I was tired and what am I, your internet towel boy?)
Here, however, are some very preliminary thoughts:
1. You can read a bit about the lawsuit, and the circumstances that brought it about, at This Ain't Hell, among other places you could find if you Google John Giduck. There are multiple copies of the lawsuit available on the internet; I've made one available here. The page numbers are jumbled on that one — sorry.
2. In the complaint, Giduck claims that people on SocNet have falsely accused him of posing as things he is not — including a former member of Special Forces. Giduck's position seems to be that he's never said he was in the Special Forces; he just markets himself as someone very knowledgeable about Special Forces, someone you should hire to lecture and consult about them. He also asserts there is a conspiracy to ruin him and his lecturing/consulting business, that SocNet commenters called for him to be ruined, and that SocNet commenters called for attacks on him and his wife, resulting in his tires being slashed.
3. The complaint asserts that some defendants made specific false statements of fact. If true, that could actually make out a case for defamation for which legal redress is warranted. However, taken as a whole, the complaint appears to be a very disturbing attempt to retaliate against critics and chill any new critics. Here's why:
a. The complaint mixes allegations about false statements of fact that could plausibly be defamation (like asserting that the defendants accused Giduck of making false claims of being a Special Forces soldier) with allegations directed at statements of opinion that are obviously protected by the First Amendment (like calling Giduck a "creepy-ass dummy" or "moron."
b. The complaint lists a long series of statements about Giduck, and mixes allegedly false statements of fact with statements of clear opinion. It names SocNet and a dozen individuals who allegedly posted about Giduck. But in the complaint Giduck and his attorneys utterly fail to attribute any particular statement to any particular defendant. Instead, they assert broadly (and quite implausibly) that people writing about Giduck are engaged in a conspiracy to ruin him and his business. This is problematical on many levels. First, the failure to attribute particular statements to particular defendants seems like a clumsy attempt to evade Section 230 of the Communications Decency Act, under which SocNet and its owners cannot be liable for comments left there by community members. Second, deliberately refusing to plead what each defendant allegedly posted appears to be an attempt to head off any First Amendment arguments at the pleading stages of the case — in other words, to prevent any particular defendant from saying "the statement the complaint attributes to me is clearly a protected statement of opinion not susceptible to defamation analysis." This looks like a ploy to make litigation more expensive and burdensome. Third, this appears to be a blatant attempt to chill and punish anyone who writes about John Giduck. Under the complaint, as drafted, it appears that you might be sued as a co-defendant under Giduck's conspiracy theory if you so much as call him a "cheesedick" (one of the allegations) in a thread about him. In short, even though I do not know anything about John Giduck beyond what I've read in this complaint and in the linked post, Giduck's complaint is framed in a way to make me very suspicious of him, of his legal team, and of the validity of his case. This complaint appears calculated to chill and retaliate, not to vindicate righteous claims.
4. The complaint names defendants from multiple states and even other countries. This will raise some interesting issues of where and how online comments confer personal jurisdiction, an area of law that is in flux. That's a lengthy discussion. Suffice it to say that the complaint appears calculated to state a case that the "conspirators" made deliberate efforts to destroy John Giduck's business in Colorado. That assertion, in turn, seems calculated to take advantage of an emerging doctrine that blog posts and comments about a person in a particular state do not create personal jurisdiction in that state unless they are calculated to cause harm in that state and do so.
5. Though the complaint has some elements of a classic chilling assault on criticism, it also describes some behavior which, if true, is creepy and deplorable. If some of Giduck's critics called for people to slash his tires and otherwise harass them, they ought to be identified and pursued criminally or civilly. If some commenters did pursue Giduck's wife and daughter, and write to his wife's employer in an effort to interfere with her employment, I sincerely hope that they are named, shamed, and cockroach-stomped.
More to follow.
Last 5 posts by Ken White
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
- The Power To Generate Crimes Rather Than Merely Investigate Them - June 19th, 2017
- Free Speech, The Goose, And The Gander - June 17th, 2017
- Free Speech Tropes In The LA Times - June 8th, 2017
- I write letters - June 1st, 2017