Over the last couple of weeks I've gotten communications from five different strangers alerting me of something outrageous: the Los Angeles Times has brought a SLAPP suit against Ted Rall! OMG!
Except they haven't, of course. But the people who wrote me aren't to blame — at least not entirely. They're only accepting Ted Rall's silly and utterly dishonest narrative about events in a lawsuit he filed.
In short, Ted is incensed that the law protects everyone, even big mean companies.
Ted Rall is an author and cartoonist, and the first person I'd go to if I wanted someone to put a 9/11 widow in her place. Back in May 2015 he wrote a column about a 2001 encounter with the Los Angeles Police Department, portraying an officer as abusing and mistreating him over a jaywalking ticket. The Los Angeles Times — which ran the column, and occasionally runs Rall's content — conducted an investigation, decided that Rall had lied about the incident, and fired him and explained how they concluded that he lied about the encounter.
[This post is not about offering an analysis or interpretation of the divergent reports of that incident, or about the oddity of the LAPD sending the Times decade-old recordings to contradict a columnist.]
After demanding retractions, Ted Rall sued Tribune Company, Tribune Media Company, Tribune Publishing Company, Tribune Interactive, Tribune Media Net Inc., Los Angeles Times Communications, the Los Angeles Times, and four individuals. In his complaint he brought claims for defamation, defamation per se1, blacklisting under the California Labor Code2, retaliation under the California Labor Code, Intentional Infliction of Emotional Distress, wrongful termination, breach of express oral contract not to terminate, and breach of implied contract not to terminate.
Anyone who practices defamation defense could have predicted where things went from here. Since Ted Rall lives out of state, the Times defendants filed a motion asking the court to force him to post a bond covering costs under California Code of Civil Procedure section 1030. That's a standard move; I did the same thing when I represented Patrick Frey pro bono. Any defendant sued in California by any out-of-state plaintiff can take advantage of the statute. The law reflects a realization that if a defendant wins and gets an award of costs, it's more difficult to pursue an out-of-state plaintiff to collect. It's a particularly valuable tool when — as here — the defendant has a potential anti-SLAPP motion, because then "costs" can include the attorney fees the defendant might recover. Here, though the Times defendants asked for a bond of $300,0003, the Court ordered Rall to post a bond of $75,000, which he did with donations from fans.
The Times defendants also filed three anti-SLAPP motions. (Rall complains that the defendants broke their arguments into three motions to make it harder for them to oppose them or to make more money. In fact, Rall sues so many people, and offers so many causes of action and theories, that any attorney would have broken the motions up — it wasn't practical to file an omnibus motion within the page limit.) I've been writing about anti-SLAPP statutes and why they are so important to protect speech for a long time. In short, an anti-SLAPP motion is a tool — a creature of state statute — that gives a defendant an opportunity to dismiss a case, and recover attorney fees, if (1) the lawsuit is aimed at speech protected under the statute, and (2) the plaintiff can't produce evidence sufficient to show they could win. It's most useful when a defendant has an absolute statutory or First Amendment defense to a censorious lawsuit. You can read the Times defendants' motions here, here, and here.4
The court has already granted one of the anti-SLAPP motions — the one filed on behalf of the individuals. You can read the ruling here. The court applied the two-step anti-SLAPP analysis, finding (1) that the defendants had carried their burden of showing that the complaint was directed at speech covered by the statute, and (2) Rall could not prevail on his claims because he was suing over speech that was either non-actionable opinion or protected under "fair comment" privilege. As of this writing, the judge has taken the second anti-SLAPP motion under submission after argument and will rule on it soon.
The purpose of this post isn't to analyze whether the judge was right to grant the anti-SLAPP motion, or whether Rall has a case. I may look at that in a future post. The point of this post is that Ted Rall is being dishonest and misleading about what's happening in his case, and contemptibly decrying the concept that the law protects everyone.
Consider Rall's fundraising page, where he attacks the anti-SLAPP statute and Section 1030:
All Ted wants is for a jury of his peers to hear his story. He is confident that they will agree that what the Times did was illegal. Before that can happen, however, Ted has to get past California's notorious "anti-SLAPP" law. According to the LA Times' own editorial board, anti-SLAPP was passed to protect small individuals from big corporations, as when "a deep-pocketed corporation, developer or government official files a lawsuit whose real purpose is to silence a critic, punish a whistleblower or win a commercial dispute."
In this case, however, the Times — part of a huge $420 million corporation called Tronc (formerly Tribune Publishing) — is Goliath pretending to be David, turning the statute on its head in order to try to bankrupt Ted into a "pay to play" legal maneuver. Under anti-SLAPP, Rall has to prove that he is likely to prevail in his lawsuit before he begins depositions, discovery, and the actual lawsuit process…which are likely to reveal more skullduggery among corrupt Times officials.
The Times has backed away from their assertions that Ted lied, as they realize that they have made a huge mistake. Now, they’re trying to prevail through technicalities. The Times' lawyer Kelli Sager of the pro-corporation law firm Davis Wright Tremaine filed a motion demanding that Rall post a whopping $300,000 bond . This is in case the Times wins their disgusting anti-SLAPP motion, which would allow the Times to be awarded their attorneys' fees…to be paid for by Ted.
Fortunately, the judge ordered the amount reduced to $75,000. Still, that's a lot of money. Most states ask for a few hundred bucks, maybe a thousand. It's a lot more money than Ted, who earned $300/week at the Times, has access to.
Which is where you came in. More than 750 supporters came through with $75,000!
But that was just the beginning. The Times' lawyers are aggressive, highly-paid and well-connected — and ruthless. They will do anything they can to stop the Times from being held accountable, including destroying Ted.
In short, Ted Rall — who sued a newspaper, a handful of parent companies, and a bunch of journalists for their speech and for dropping his column — is trying to portray himself as the hero of speech and the defendants as the villains and aggressors. This is utter bunk. Contrary to Rall's suggestion, the anti-SLAPP statute protects everyone equally, whether they're a pauper or a billion-dollar corporation. It protects speech, not just people who are ideologically acceptable to Rall. Rall's suggestion that the anti-SLAPP statute is only supposed to protect little people against big developers is flat wrong. California courts have repeatedly said that it's supposed to be "broadly construed to encourage continued participation in free speech and petition activities." Moreover, courts have very specifically rejected Rall's argument: "Respondents also contend the Legislature intended the SLAPP statute to apply to tort actions brought by large corporations that lead to prolonged litigation. No such limitation appears on the face of the statute, and it has not been so construed by the courts."
Rall is even more off the rails elsewhere, penning what amount to screeds about class enemies receiving due process. He tries to portray himself as something like a criminal defendant forced to defend himself — for having to answer a motion to dismiss a defamation claim he brought. Despite the fact that he is suing a basket of corporations and individuals for their speech, he treats with contempt and scorn the suggestion that he is trying to impede their speech. He attacks the individual lawyers who argued the anti-SLAPP motions on behalf of their clients. He screams that anti-SLAPP statutes harm free speech (Really) and complains that it's expensive to litigate — as a plaintiff responding to an anti-SLAPP motion.
Let's review, in the wake of all this strife, what an anti-SLAPP motion does. It's not like a trial. The judge doesn't weigh evidence. The judge does only two things: (1) determine if the complaint attacks speech that falls into the categories protected by the statute, and if so, (2) evaluate if the plaintiff has provided any evidence which, if believed, would be enough to support a claim.5 Practically speaking, a defendant can only win an anti-SLAPP complaint in two situations: (1) where the plaintiff has no evidence supporting their attack on speech, or (2) where the speech the plaintiff is attacking is protected as a matter of law — like an opinion. He's trying to portray the anti-SLAPP law — which broadly supports the rights of all sorts of people, whether or not Ted Rall agrees with them — into a tool of oppression. His petulance is nauseating:
I’m suing the Los Angeles Times. I’m the plaintiff. I’m the one who was wronged. The Times should be defending themselves from my accusations that they fired and libeled me as a favor to a police chief.
But this is America.
Deep-pocketed defendants like the Times — owned by a corporation with the weird name Tronc and a market capitalization in excess of $400 million — are taking advantage of America’s collapsing court system to turn justice on its head. In worn-out Trump-era America, the corruption and confusion that used to be associated with the developing world has been normalized.
In effect, Ted Rall is complaining that he can't inflict the burden, expense, and chilling effect of frivolous claims on speakers all the way through trial. He's couching it in misleading language. His gullible fans — and some people who should know better — are eating it up. And his campaign of disinformation is succeeding in part. I'm getting emails like this:
Cartoonist Ted Rall ($300/week) is the target of an anti-SLAPP suit by the LA Times, which seems to me (a non-lawyer) to be a reversal of the intent of the law.
. . .
Ted is facing this suit because of his writing about an interaction with LA police during a stop for jaywalking.
Well propagandized, Ted. Have you considered a job at the White House?
- Ugh, this again. "Defamation per se" is just a subset of defamation involving certain subjects — like false allegations of a crime — where the plaintiff doesn't have to prove special damages because the harm of the defamation is assumed. The plaintiff still has to prove the other elements of defamation. ▲
- Before you Proud Boys and Gamergaters get too excited, the California "blacklisting" law only prohibits an employer from lying to prevent a fired employee from getting another job. It doesn't protect you from Twitter blacklists. Simmer down. ▲
- That sounds like a lot. It is. But litigation is hideously expensive and Rall's complaint is deliberately and tactically scattershot in defendants and claims, and it will cost an immense amount of money — quite possibly $300,000 — to litigate the case through anti-SLAPP motions. ▲
- In contrast to the federal courts' PACER system, the Los Angeles County Superior Court's online docket is clumsy, expensive and often incomplete. It would have cost me hundreds of dollars to download all of the documents from this case. I obtained these copies from counsel from the Times by requesting them. Mr. Rall talks extensive about his case and its merits on his blog, but does not post copies of any of the relevant pleadings, which I find odd. ▲
- Rall never explains this standard to his readers. Moreover, he misrepresents the state of the law. He argues that anti-SLAPP laws should be changed because they violate plaintiff's rights and Washington state decision striking down that state's anti-SLAPP law to support his position. Either he doesn't understand or he's lying. Washington's law was crucially different than California's law — it required the court to weigh evidence in response to an anti-SLAPP motion, forcing the plaintiff to prove their case by "clear and convincing" evidence. California's statute — the model for most others — only requires the plaintiff to provide some evidence which if accepted as true by the judge would be enough. No weighing is involved. ▲
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