More than a year ago Ahmed Mohamed — later derisively known as "Clock Boy" — had a run-in with Texas school administrators and law enforcement. Your preconceptions may have driven your reaction. Was he a victim of insipid if-you-see-something-say-something culture, as my preconceptions suggested? Or was he part of a public relations stunt designed to promote a narrative that Muslims are victims of discrimination, as many claimed? Did he make a clock out of electrical components that was mistaken for a bomb by hysterical and foolish people, or did he pile a handful of electronics into a case intending that it provoke, as some have argued? This post isn't likely, or intended, to change your mind on that.
Whatever Ahmed and his family intended before the incident, after the incident they sought to make maximum use of it. That effort included lawsuits against media commentators and local officials. This week, Mohamed Mohamed (the father) and Ahmed Mohamed (the son), who were in my opinion poorly represented, ran headlong into the buzz saw of Texas' vigorous anti-SLAPP statute.
Mohamed Mohamed, acting (with questionable judgment) on behalf of Ahmed Mohamed, filed a civil complaint in Dallas County, Texas naming The Blaze, Glenn Beck, the Center for Security Policy ("CSP"), CSP member Jim Hanson, Fox Television, Fox correspondent Ben Ferguson, commentator Ben Shapiro, and Mayor Beth Van Duyne. The complaint, a painfully disorganized and meandering composition, asserted (ambiguously) libel, asserting that (1) Glenn Beck, Jim Hanson, and Mayor Van Duyne suggested on Beck's show that the Mohamed family staged the incident for PR, (2) Fox 4 News correspondent Ben Ferguson suggested that the incident was planned by Mohamed Mohamed, and (3) Ben Shapiro told Fox News that he thought the incident was a hoax.
Mohamed's complaint vexes me. Not every statement one can utter is protected by the First Amendment; some statements are genuinely defamatory and outside legal protection. Defamation claims — particularly on matters of great public controversy — ought to be made in a clear and effective matter to limn the constitutional and factual issues at play. Mohamed's complaint falls short. It carelessly conflates statements of fact and statements of opinion, fails to articulate precisely what statements of fact are alleged to be false, and seems drafted without any informed thought about how to resist the inevitable anti-SLAPP motion.
The defendants, most of whom were quite well-represented to date, pounced. Fox and Ferguson came first, moving to dismiss under Texas' anti-SLAPP statute. As I've explained before, an anti-SLAPP statute gives defendants a procedural vehicle to ask the court to dismiss a lawsuit aimed at protected speech, and to recover attorney fees if they win. Fox and Ferguson argued that Mohamed had bolixed up the type of defamation they claimed1, that Fox and Ferguson were merely reporting on proceedings by the school district and city and were therefore protected by Texas' reporting privilege, that their repeating of the Mayor's statements was an accurate report of a public official's statement on a matter of public concern and therefore privileged under Texas law, and that Ferguson's commentary was a statement of opinion and rhetorical hyperbole rather than fact and therefore not defamatory.
Fox and Ferguson's motion was comprehensive and supported by facts, evidence, and extensive legal citations. Mohamed's opposition was scattered and perfunctory. It did a very poor job of addressing the crucial distinction between protected opinion and potentially defamatory fact, devoting a few pages of poor argument unsupported by legal authority. So it is not surprising that the court granted Fox and Ferguson's motion in full and awarded more than $80,000 in fees to Fox and Ferguson.
Blaze and Beck, through one set of lawyers, and CSP and Hanson, through another, also filed anti-SLAPP motions — motions too vast to host here. Their core argument throughout was that their challenged statements were opinion, commentary, and hyperbole, not potentially defamatory statements of fact — and they were substantially aided in those arguments by the very language of Mohamed's complaint. Mohamed attempted to fix this problem by filing an amended complaint. But the amended complaint mostly served to emphasize the rough-and-tumble cable-tv-hyperbole nature of the defendants' commentary, and to add references to mostly anonymous trolls who reacted with (arguably factual) accusations to the controversy. Mohamed's amended complaint also undermines itself by arguing how Beck's and CSP's statements should be understood as an accusation of involvement in terrorism, which merely serves to emphasize the statements' hyperbolic and opinion-based nature. Mohamed's single brief in opposition to both anti-SLAPP motions is, once again, woefully inadequate to the task. It utterly failed to engage the crucial distinction between fact and opinion — the heart of the case — and offered no useful authorities nor persuasive arguments on that point.
This week, after a length hearing, the court granted both motions. According to a triumphant press release by CSP's attorneys, the trial court pressed Mohammed's lawyers for specific false factual statements without result. I've seen no transcript, but that would be consistent with the poor quality of the papers. The court has now issued orders granting the motions and invited these defendants to submit affidavits documenting their attorney fees for recovery. I'm going to estimate that those fees from these defendants will total between $200,000 and $300,000. Mohamed's only consolation is that the court refused to make the findings necessary to pile separate monetary sanctions on top of the attorney fees.
Ben Shapiro has an anti-SLAPP motion scheduled for hearing at the end of the month. The motion argues forcefully and effectively that Shapiro's commentary was also opinion, not fact. His argument is, if anything, stronger than that of the other defendants, and I'd say his chances of prevailing are excellent. Mayor Van Duyne also has a motion pending. The motion — filed by a City Attorney — is dramatically less thorough than that filed by the other defendants, possibly to her peril, but she may benefit from the collective impact of the other motions, even though some of her statements are more susceptible to interpretation as factual claims.
Out of all of the sound and fury, this case mostly turned on one of the legal issues most familiar to Popehat readers — the distinction between statements of fact (potentially defamatory) and hyperbole and opinion (not potentially defamatory unless they imply false facts). Whether or not the commentary about the Mohamed family was fair or decent or rational, it was patently opinion based on reported facts about an issue of public interest, and therefore protected by the First Amendment.
Mohamed has been utterly crushed by the Texas anti-SLAPP statute. This is the right result; his frivolous lawsuit was a classic SLAPP, calculated to harass detractors, garner publicity, and wage political war through other means. Though he could have been much better represented, the result would likely have been the same, and should have been. This observation is not an endorsement of political or religious triumphalism accompanying this result.
- This is tedious, but basically, Fox argued that Mohamed accused defendants of libel per se (meaning libel falling into certain specified categories that does not require proof of resulting damages — for instance, an accusation of a crime) when in fact the facts showed only garden-variety libel, sometimes called libel per quod, because nobody accused Ahmed of a crime. ▲
Last 5 posts by Ken White
- No, The Grand Junction Daily Sentinel Shouldn't Sue Over "Fake News" - February 20th, 2017
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