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The Popehat Signal: Anti-SLAPP Help Needed in California

July 14, 2017 by Ken White

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

It's time for the Popehat Signal, where I seek pro-bono help for people targeted by bogus and potentially financially ruinous defamation suits.

I'm looking for pro bono counsel for a woman in state court in Northern California. For now, I will offer only a summary description. The woman's ex-boyfriend is about to name her in a defamation suit because she described how he treated her in a contemptible manner. It's a quintessential SLAPP suit, and — based on materials I can provide to you if you are a qualified attorney interested in the case — there's the potential for an extremely strong anti-SLAPP motion that will be devastating to the plaintiff (and his attorney, who has filed a SLAPP suit before).

The woman is employed at a nonprofit and — like most Americans — can't afford counsel to defend her. She can afford to cover costs, and in my opinion there is an unusually good chance of recovering fees through an anti-SLAPP motion. (In California, an attorney representing a client pro bono can get his or her reasonable fees paid upon winning an anti-SLAPP.) This is a fantastic one I would do myself if I could right now, but my dance card is full.

Please reach out to me at Ken at popehat dot com if you are interested.

Last 5 posts by Ken White

  • Now Posting At Substack - August 27th, 2020
  • The Fourth of July [rerun] - July 4th, 2020
  • All The President's Lawyers: No Bill Thrill? - September 19th, 2019
  • Over At Crime Story, A Post About the College Bribery Scandal - September 13th, 2019
  • All The President's Lawyers: - September 11th, 2019
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Filed Under: Law

Comments

  1. Amy Alkon says

    July 14, 2017 at 8:49 am

    Ken, love you for your Popehat signal tweets, among other reasons. (I come for the ponies.)

  2. Grifter says

    July 14, 2017 at 8:58 am

    Wish I could help!

    Side note, I feel this was a little unclear:

    "The woman's ex-boyfriend is about to name her in a defamation suit because she described how he treated her in a contemptible manner."

    Is it that she described him in a contemptible manner, or that his treatment was in a contemptible manner? I'm assuming the latter.

  3. Paul Nicholas Boylan says

    July 14, 2017 at 9:21 am

    This is what I do. Please contact me at [email protected] to discuss.

  4. Liam says

    July 14, 2017 at 9:25 am

    @grifter I assume she described his contemptible treatment of her, in unflattering terms. The other way of reading that sentence is grammatical but makes no sense in context.

  5. Pete Morin says

    July 14, 2017 at 9:33 am

    Love that you do this, Ken. Please let me know if a similar need ever arises in Massachusetts.

  6. Christenson says

    July 14, 2017 at 9:35 am

    @Liam and @Grifter, even if she *had* been doing something contemptible when she described her former partner, the rest would still make sense and the free-speech defense would be still important. As we do to the least of us, so deserve *all* of us.

  7. Grifter says

    July 14, 2017 at 9:49 am

    @Liam:
    I agree, that's why I said I interpreted it that way. But it reads funky because of the grammar which would normally indicate he was saying her description was done in a contemptible manner, even though the context made it clearer. That's why I brought it up!

    @Christenson:
    At no point would I imply or say otherwise! I was merely pointing out what seemed to be a somewhat confusing turn of phrase. Ken included it for context of the situation, and I *think* –with some degree of confidence–I know what he was trying to say (context clues!), but it just seemed a little wonky, hence the question. If he wanted to say "In a detestible manner, she described his treatment of her in their relationship", that wouldn't invalidate the 1st amendment issue nor the popehat signal, but it would be a different context than "she described his contemptible treatment of her in their relationship", and I'm not here to tell Ken which one it is–I'm here to understand what he's saying when he tells us which it is.

  8. David Byron says

    July 14, 2017 at 10:24 am

    @Grifter The grammar isn't unclear.

    "The woman's ex-boyfriend is about to name her in a defamation suit because she described how he treated her in a contemptible manner."

    In prescriptive English grammar, a modifying phrase or clause (such as the prepositional phrase "in a contemptible manner") is understood to modify the nearest modifiable phrase or clause.

    You suggest that "in a contemptible manner" could adverbially modify she described (as in, "she described in a contemptible manner") rather than how he treated her (as in, "how he treated her in a contemptible manner"). In this, you fail to appreciate that the modifier is actually attached to the clause it modifies and is (for that same reason) remote from the one you wrongly think may be in play.

  9. Ken White says

    July 14, 2017 at 11:05 am

    I don't know what I expected.

  10. BC says

    July 14, 2017 at 11:21 am

    No good deed goes unpunished, Ken.

  11. Burnside says

    July 14, 2017 at 11:29 am

    To be fair, Ken, reply #3 is a responder to your Popehat call.

    As for the rest, can we get an RSS feed to only show comments that don't discuss grammar issues? :-P

    I keeed. I keeed.

  12. Aaron says

    July 14, 2017 at 11:31 am

    @Ken, this was always inevitable.

    @David, in prescriptive English grammar there's still ambiguity, since there are two modifiable phrases that are equally near to "in a contemptible manner". "Described" takes an object, and the entire verb phrase is "described how he treated her" – it is ambiguous whether it's "She described how he treated her in a contemptible manner" or "She described how he treated her in a contemptible manner." A modifier modifies the entire verb phrase; otherwise it would be "She described how he treated in a contemptible manner her."

  13. En Passant says

    July 14, 2017 at 11:31 am

    Ken White says July 14, 2017 at 11:05 am:

    I don't know what I expected.

    I don't either. But I note how very quickly the Popehat Signal appears to have yielded at least one useful response (at 9:21 AM above).

    I'm retired, inactive, and never practiced civil. But from what I can ascertain with google-fu, that responding attorney appears eminently qualified to take up the anti-SLAPP task.

    Because he responded here, and not by email as you requested, I hope you noticed the response and are now in contact.

  14. Dan T. says

    July 14, 2017 at 11:44 am

    Nobody expects the grammar inquisition…

  15. YoSup says

    July 14, 2017 at 12:25 pm

    David Byron,

    I'm curious where you're getting that (interpretation of that) rule, but in any case, as noted above, it doesn't make any sense even on its own terms. Clauses are embedded inside of other clauses, and you seem to be reading "nearest" as "lowest in the hierarchy" or something.

    As a matter of actual English grammar, there is attachment ambiguity that needs to be resolved by pragmatic considerations, as is commonly the case with adjuncts.

  16. Michael 2 says

    July 14, 2017 at 12:40 pm

    I'm with Aaron on the grammar. That's why lawyers get the big bux, trying to avoid that ambiguity when it is important to not have it; but cleverly creating ambiguity when it is beneficial.

    It's a bit like arguments of the Second Amendment; whether the limiting clause actually limits the declared right or is simply explanatory.

  17. Trent says

    July 14, 2017 at 4:04 pm

    It wouldn't be the internet if someone didn't offer advice on grammer!

  18. desconhecido says

    July 14, 2017 at 4:16 pm

    It wouldn't be the internet if someone didn't offer advice on grammer!

    Or speling.

  19. Typenschild Delete says

    July 14, 2017 at 6:26 pm

    It wouldn't be the internet if someone didn't offer advice on grammer!

    Or speling.

    Its a art, much like trolling.

    /Ken, thanks for doing this.

  20. David Byron says

    July 14, 2017 at 7:29 pm

    @Aaron Joining Grifter, you suggest there's ambiguity between
    "She described how he treated her in a contemptible manner"
    and
    "She described how he treated her in a contemptible manner"
    (and the only alternative you envision is the amusing
    "She described how he treated
    in a contemptible manner
    her.")

    Your concern is that the transitive verb "describe" takes an object, and you assert that the object here is the phrase "how he treated her". My suggestion to Grifter is that the phrasal object is, fairly obviously, "how he treated her contemptibly."

    For clarity, let's proceed by analogy with a simply adverb instead of an adverbial phrase. To add further value to the substitution, let's also swap in a verb that more strongly suggests harmony with that adverb, fairly beckoning it to come on over. Exchange "in a contemptible manner" with "passionately" and exchange "described how he treated her" with "praised how he danced". (Note that "to describe in a contemptible manner" seems less idiomatic than "to praise passionately".)

    After substitition, we have:
    "She praised how he danced passionately."
    Even though "passionate" is a word one might plausibly associate with the verb "to praise", it's still pretty obvious that that isn't the best way to construe the sentence. What makes this obvious is the availability of alternatives:
    "Passionately, she praised how he danced."
    "She passionately praised how he danced."
    (And even the rather awkward
    "She praised passionately how he danced.")

    These are what one would say if one meant to ascribe that passion to her rather than to his terpsichorean maneuvers. Reversing the substitutions, one would say something like
    "In a contemptible manner, she described how he treated her."
    "She, in a contemptible manner, described how he treated her."
    (And even
    "She described in a contemptible manner how he treated her.")

    Given these alternatives, how would one laud the enthusiasm of his dance? The viable options seem to be:
    "She praised how passionately he danced."
    "She praised how he passionately danced."
    "She praised how he danced passionately."

    Reversing the substitutions, one would say something like
    "She described how in a contemptible manner he treated her."
    "She described how he in a contemptible manner treated her."
    "She described how he treated in a contemptible manner her." (Your quip above. ;) )
    "She described how he treated her in a contemptible manner."

    The adverbial phrase is idiomatic only in the last of these options; it's the only way to attach the phrase to the intended verbal construct while avoiding the idiomatic constructs that clearly ascribe the quality to her or her action.

    In other words, the original phrasing is not only unambiguous but deliberately, aggressively so; ambiguating or awkward alternatives are rampant, but the original stands as a masterpiece of effective communication.

  21. Encinal says

    July 14, 2017 at 8:37 pm

    there's the potential for an extremely strong anti-SLAPP motion that will be devastating to the plaintiff (and his attorney, who has filed a SLAPP suit before).

    So the lawyer faces personal liability?

    @David Byron:
    Your thesis that this is the primary reading is strong; however, your argument implies a thesis that you have not stated, and is much shakier. This thesis is that if a reading is wrong, it can be dismissed. On the contrary, people routinely write sentences that conflict with grammatical rules. For instance, I took the very first article that came up when I googled "news": http://www.bbc.com/news/world-europe-40612056 . This is a news article written by a professional organization, yet it has numerous grammatical errors.

    The Turkish authorities accuse a movement loyal to the Muslim cleric, Fethullah Gulen, of organising the July 2016 plot to bring down President Recep Tayyip Erdogan.

    There should not be commas around "Fethullah Gulen", as this is a restrictive appositive phrase.

    The latest dismissals came in a decree from 5 June but only published by the official government Gazette on Friday.

    "only" clearly is intended to modify "Friday", yet is placed before "published".

    The government says the measures are necessary given the security threats it faces but critics say Mr Erdogan is using the purges to stifle political dissent.

    There should be a comma after "faces".

  22. Pete Morin says

    July 14, 2017 at 8:45 pm

    As a legislator, I opposed anti-SLAPP legislation in MA when it was first proposed (late 80’s), but have come to appreciate it greatly in the age of the Citizen Blogger. It is a really effective Bullshit Detector.

    On the grammar onanism, I’ll just add that I read the quote the first time, knew exactly what was intended, found it unambiguous, but noted the likelihood that SOMEONE was gonna be a pest.

  23. David Byron says

    July 14, 2017 at 11:04 pm

    @Encinal, you won't find me defending the quality of routine journalistic writing. Besides, "can be dismissed" (whether or not it is a tacit premise of, or inference from, my argument) is vague. One way to dismiss the weaker reading is to ignore it; another to validate but reject it; another to attend to and invalidate it. I preferred that third option.

    @Pete Morin, yup.

  24. nodandsmile says

    July 15, 2017 at 1:23 am

    It wouldn't be the internet if someone didn't offer advice on grammer!

    Or speling.

    Its a art, much like trolling.

    Well, 'tain't an science….

  25. John says

    July 15, 2017 at 7:57 am

    @Pete Morin, out of curiosity, why did you oppose the anit-SLAPP legislation? And what changed your mind?

  26. Sol says

    July 15, 2017 at 9:48 am

    This comment thread is deceptively grammar-focused.

  27. Thufir Hawat says

    July 15, 2017 at 10:29 am

    nodandsmile says
    JULY 15, 2017 AT 1:23 AM

    It wouldn't be the internet if someone didn't offer advice on grammer!

    Or speling.

    Its a art, much like trolling.

    Well, 'tain't an science….

    Is that a taint that can be snorted?

  28. Dor says

    July 15, 2017 at 5:10 pm

    Dan T won the internet on July 14 @ 11:44am. 😄😄

    Hope you found someone to help, Ken.

  29. M B says

    July 16, 2017 at 2:09 am

    Yeah, lawyers and bloggers are two groups that love to talk grammar, so this sort of discussion is inevitable.

    … and I definitely would have re-written this as "described his contemptible treatment of her."

    Also, I'd love to hear how this case turns out.

  30. Raucous Indignation says

    July 16, 2017 at 9:47 am

    C'mon guys, it's a beautiful day outside; get out of your mom's basements.

  31. Czernobog says

    July 17, 2017 at 12:34 am

    Raucous Indignation says
    JULY 16, 2017 AT 9:47 AM

    C'mon guys, it's a beautiful day outside; get out of your mom's basements.

    Moms'.

  32. Dan T. says

    July 17, 2017 at 7:11 am

    Depends on whether there's one mom with lots of basements, lots of moms with one basement, one mom with one basement, or lots of moms with lots of basements… the grammar would differ between these cases.

  33. robbbbbb says

    July 17, 2017 at 9:08 am

    Ken, thanks for doing this. It's good, important work.

    For anti-SLAAP work, is there an effective non-profit to which one could make a donation? Much like FIRE for first amendment issues in education?

  34. Grifter says

    July 17, 2017 at 11:38 am

    @David Byron:

    I didn't mean to cause a derail, honest. Nor did I mean to make you mad, either; I mean, I don't know you're mad, but you've been super vehement in your assertion of the nonexistence of syntactical ambiguity to the point of being rather insulting about it. I get that I referenced grammar rather than syntax, but the notion of syntactic ambiguity is quite old, though…there's even a Groucho Marx quote that expressly relies on that precise kind of ambiguity:

    "One morning I shot an elephant in my pajamas. How he got into my pajamas I'll never know."

    That joke only works because he knows listeners will assume he meant that he was in his pajamas, and the reveal that the elephant was actually what was being referenced is the joke.

    It's pretty easy to come up with examples that go either way on that…

    "I have a picture of my motorcycle on my desk"
    "I have a picture of my motorcycle on the beach in Greece"

    Each of those has an obvious interpretation. There's plenty more.

    In the case of this phrase, what made me question the interpretation was that Ken has, in the past, opined about the character or quality of speech, even as he (principled man that he is) has defended that speech's rights. So while there was an obvious interpretation that I leaned towards, I could have seen him saying the interpretation I was questioning…if he wasn't being reticent because this is a court case, if this were a public issue, he'd likely have linked to a public version of her statements, where the reader could understand immediately what was meant. But he didn't, and I get why he didn't, and I was just trying to make sure I understood what was meant by what was said. I guess that makes me a pest?

  35. Jackson says

    July 17, 2017 at 12:49 pm

    Hell hath no fury like an internet pedant scorned.

  36. Michael Joseph says

    July 17, 2017 at 2:48 pm

    Ken White, 1) I am very interested in pertinent responses to your original inquiry. Defendants will soon file motion for anti-SLAPP against my malicious prosecution case. Defendants are linked to an HOA. I already prevailed at trial as cross-complainant. I was in pro per. 2) Also, the Training Coordinator at Sacramento Law Library is looking for 1 or 2 attorneys to present an MCLE class on anti – SLAPPs. If anyone responds I can forward contact info to the Training Coordinator. 3) Please consider re-posting your inquiry since this thread has become impertinent. My contact for either "1" or "2" above is: [email protected]

  37. David Byron says

    July 17, 2017 at 6:09 pm

    @Grifter Why speak you of anger and insult? We're having casual banter about ephemera– relative matters which never raise my ire, but sometimes spark an interest.

    As for Groucho, well: zeugma distributes ellipsis over parallel syntax; syllepsis homonymic tokens.

  38. NotPiffany says

    July 18, 2017 at 9:32 am

    3) Please consider re-posting your inquiry since this thread has become impertinent.

    @Michael Joseph – You've never been on this site before, have you?

  39. Burnside says

    July 18, 2017 at 10:53 am

    I prefer all my threads to be pertinent. I open the sewing box daily and scold them to make sure of it.

  40. Richard says

    July 19, 2017 at 9:22 am

    I have to agree with @Grifter that the ambiguity is there.

    If the sentence read "…she described how he treated her in a voice choked with emotion", it would be obvious that the "in…" clause is modifying "described."

    Similarly, if the sentence read "…she described how he treated her in a heinous pattern of abuse," it would be just as obvious that the "in…" clause is modifying "treated her."

    However, although it's unlikely that one would use a turn of phrase such as "treat [someone] in a voice choked with emotion" or "describe [something] in a heinous pattern of abuse," it is entirely possible to "treat [someone] in a contemptible manner" or to "describe [something] in a contemptible manner."

    Personally, being somewhat familiar with Popehat and, more specifically, Ken's views on free speech, I don't think that he would ever say that someone who was clearly treated poorly was uttering "in a contemptible manner" her description of that treatment (regardless of the language used), so I'm inclined to agree with David's interpretation of Ken's meaning.

    However, just in terms of parsing, I initially read the statement the other way (the description, not the treatment, being "in a contemptible manner"). This is largely because, in any just world, "She will be sued because she described [her treatment] in a contemptible manner" would make more sense than "She will be sued because she described [how she had been contemptibly treated]."

    And I certainly agree that it could have been worded less ambiguously (e.g. "…she described his contemptible treatment of her," "…she described the contemptible manner in which he had treated her," etc.).

  41. Aaron says

    July 20, 2017 at 8:20 am

    @David, my purported response, and every argument I'd have wished to make, has been made by Richard above.

    I too first parsed the sentence as her being sued for a contemptible description and not a description of contemptible treatment. This made little sense, and I had to reread the sentence to realize my parsing mistake.

    Because of my and Richard's initial parsing, and despite my admiration for Ken's lucid and witty writing, I disagree that "the original stands as a masterpiece of effective communication." I grant that there are few better phrasings using the exact words he used, but often in English the only way to remove ambiguity is to rephrase something; Richard's "She described his contemptible treatment of her," as a rephrasing, sacrifices no meaning and removes all ambiguity.

    As an aside, thank you for teaching me the wonderful word terpsichorean.

  42. Grifter says

    July 21, 2017 at 12:42 pm

    @David:

    Only in the interests of explanation (and not in terms of complaint or tone-trollery), you came across, to me, a wee bit condescending and annoyed in your replies to me and to some of the other folks who replied. While the tone was present in general, I felt lines like these were representative of what I was interpreting that way:

    "In this, you fail to appreciate…"
    "the original phrasing is not only unambiguous but deliberately, aggressively so; "
    "One way to dismiss the weaker reading is to ignore it; another to validate but reject it; another to attend to and invalidate it. I preferred that third option."

    Which, again, has no bearing on much, except in that I wanted to make clear that I intended no offense in my original post.

    @Richard:
    I pretty much agree with everything you wrote. Except this part: " I don't think that he would ever say that someone who was clearly treated poorly was uttering "in a contemptible manner" her description of that treatment". Because I think the only indication we have that she was treated poorly was in interpretation of that line, right?Well, that and our own cultural assumptions based on past experience. Ken's asking for help and providing a bare-bones description because, well, of course he would, that's what he should do. But it would just as much be an anti-SLAPP issue if she was just, say, describing his behavior in a generally insulting way. I first parsed it the "wrong" way, but then figured out the "right" way, but I still just noted for clarification's sake that I wasn't certain.

    @Aaron:

    I only know that word because of the Cowboy Bebop episode "Heavy Metal Queen". Which, serendipitously, I just discovered was on sale at Amazon and am as a result rewatching right now.

  43. David Byron says

    July 22, 2017 at 7:42 pm

    @Aaron You're welcome. I believe I picked it up from the Cheese Shop sketch.

    @Grifter Thanks for clarifying your perception of tone with examples. I'll think about them.

    Hey– someone help the poor cat mentioned in the original post!

  44. David Schwartz says

    July 23, 2017 at 7:13 pm

    SnortableTaint.com is available, should anyone want to start a new law blog.

    And, to keep it at least slightly on topic, thanks for doing this. The blog is funny, but stuff like this is important.

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