First Amendment Lawyer Apparently Surprised That The First Amendment Covers Everyone
from the that's-how-it-works dept
The Wrap, a Hollywood-focused online publication, has a somewhat bizarre article by First Amendment/entertainment lawyer Susan Seager. It's officially about California's anti-SLAPP law (which we've written plenty about) and how it's popped up in a bunch of cases in Hollywood over the past few years, protecting a number of people and companies from having to go through questionable lawsuits based on their speech. This is exactly what the law is supposed to do. But Seager, for some reason, seems to imply that the law should only be used for "small-town citizens" and shouldn't be used by larger players. The article goes through a number of example cases, and then notes:
The statute was not originally enacted to protect the entertainment industry. The California Legislature enacted the SLAPP statute in 1992 to protect mostly small-town citizens from expensive lawsuits brought by large developers and companies to chill the citizens’ protests and testimony against development in their neighborhoods.
The purpose of California's anti-SLAPP law (and many other state anti-SLAPP laws, not to mention the proposed federal anti-SLAPP law) is to get cases quickly tossed out of court when the cases pretty clearly are designed to stifle expression. And, yes, many early cases involved people protesting/speaking out against companies, but the principles of stopping speech-stifling go beyond that, and it's pretty clear that California (and other states) passed laws for this very reason. They're aware that being a defendant in a lawsuit -- even a highly questionable one -- can create massive chilling effects and can be a huge drain on time and resources. And thus, we've got Caliofrnia's anti-SLAPP law, designed to do two things: quickly get those cases dismissed before they get too onerous and to deter such lawsuits by including fee-shifting, making the plaintiff pay.
However, Seager seems surprised that California's anti-SLAPP law has been construed to apply to situations other than those "small-town citizens."
But in recent years the courts have interpreted the “public interest” requirement so broadly that it now applies to any lawsuit that targets speech about “any issue in which the public is interested,” according to a California appellate court.
“In other words,” the court said in Nygard v. Uusi-Kerttula, “the issue need not be ‘significant’ to be protected by the anti-SLAPP statute — it is enough that it is one in which the public takes an interest.”
These decisions mean that the SLAPP law covers pretty much anything created by Hollywood that is followed by a large number of people, whether in tabloids, social media, websites, or other sources of information.
I'm trying to figure out why this is a problem. I'm hardly going to be considered an apologist for Hollywood (have you seen what I've written about Hollywood?) but why shouldn't Hollywood also be protected by California's anti-SLAPP law? We should all be concerned about lawsuits designed to stifle anyone's speech without any legitimate basis. And while I frequently point out how Hollywood seems to have no problem stifling speech through over-aggressive use of copyright, that doesn't mean I won't stand up and argue it deserves just as much protection under the 1st Amendment as anyone else -- and that's why, of course, California's anti-SLAPP law should apply to them -- and it does.
On top of that, while I think that Hollywood has strayed quite far from its roots, historically, Hollywood and the MPAA were strong defenders of free speech, and owe much of their business to a strong First Amendment. It's unfortunate that they've since become very opportunistic about it, choosing to only defend free speech principals when it directly impacts their bottom line, while being quite happy to whittle away free speech rights with stronger copyright or other tools of control. But, given most of what Hollywood does is expressive, there's no reason why anti-SLAPP laws shouldn't apply fully to them, just as they apply to everyone else.
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Filed Under: anti-slapp, california, first amendment, free speech, hollywood, susan seager
Reader Comments
The First Word
“History #Fail
Yes, that was true in 1992 when California first passed the SLAPP statute.
Seager declined to share which case, so I decided to find it myself: Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1039, 72 Cal. Rptr. 3d 210, 218 (2008).
The Nygard court noted that the legislature amended the statute in 1997, adding a directive to construe the statute broadly “to address recent court cases that have too narrowly construed California's anti-SLAPP suit statute.” (citing Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1296 (1997–1998 Reg. Sess.) for July 2, 1997, hg., p. 2.)).
The bottom line: Courts weren't construing the SLAPP statute broadly enough, so the legislature told them to broaden the interpretation. The Nygard court did:
Good for them. If Seager wants to change the law, she is free to use her right to petition. She is not free to re-write history.
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"I'm hardly going to be considered an apologist for Hollywood"
Ahem. Much like the ACLU went to the rescue of some KKK members because as obnoxious dipshits they are, it's precisely when the worst types need the First that we should stand by them.
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Re: "I'm hardly going to be considered an apologist for Hollywood"
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Unless, of course, someone's whole modus operandi is to stifle people's speech through SLAPP actions. Then their only concern is how fast they can bankrupt someone before a anti-SLAPP motion gets in front of a judge.
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Are you implying that suing others based upon trumped up charges in order to stifle their speech is itself a form of speech and it needs protection from government censoring? Where does one stop with this circular bullshit?
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A strategic lawsuit against public participation (a "SLAPP action") is a lawsuit filed only to silence someone's otherwise legally-protected speech. SLAPP actions function as a threat: "Retract your shit or I will sue you into oblivion." Anti-SLAPP laws exist to stop such lawsuits before they get off the ground; some anti-SLAPP laws in various states provide for the recovery of legal fees — a consequence meant as a deterrent.
SLAPP actions are, like abusive DMCA takedown notifications, an attempt to leverage the power of government — in this case, the judiciary — against legally protected speech. They are not deserving of "protection from government censoring", as they are not a form of protected speech or expression.
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Uh-huh. Speed kills, Del.
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How about this: SOCIALIST PROPOGANDA IS BASED ON SILENCING OTHER SPEAKERS - always has been -
Or maybe: THIS IS ALL SOCIALIST PROPOGANDA BECAUSE REAL SPEAKERS ARE SILENCED AND HIDDEN FOR NO GOOD REASON OTHER THAN TO DRIVE A SOCIALIST AGENDA
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Due process, accessing your right to a fair trial and documented facts are now evil socialist plots now? Wow...
I shouldn't mock the mentally ill, but this is entertaining.
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You are calling this socialist. I'm sure this makes some sense to you, presumably because you don't know what the word actually means. Perhaps in between responding to yourself with delusions, you could pick up some book or site that deals in facts. Oh, sorry, those facts are "socialist" as well, aren't they?
Please continue showing how poorly hinged your mental faculties are, it's amusing.
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Out of curiosity, what is this phrase meant to mean? I may have missed somewhere in your schizo rambling when you first stated this term, but I just assumed that you accidentally misspelled the word "proof". You've now written this repeatedly, so I have to ask - are you deliberately trying to use an outdated slur for a gay man to attack Mr Masnick? Or, is there some other random association you're trying to make?
Neither possibility makes you look good, but it would be nice to understand what you're attempting to attack him with now.
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SLAPP HAPPY HAHA FROM A HAMILTONIAN
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Re: SLAPP HAPPY HAHA FROM A HAMILTONIAN
You are free to participate in a public conversation with Mr. Masnick. But he has no legal obligation to host your side of the conversation, and you cannot legally force him to host your comments. To my knowledge, there is no law or legal precedent that would let you do that. Feel free to prove otherwise, though, Mr. Ayyadurai.
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You're arguing with someone who's not in this conversation again. To repeat - do you post on Facebook addressing Mr. Zuckerberg every time, or is this the only site where you think the owner has to personally respond to every conversation.
But, in your scenario, it would be required to show that speech is banned (not that it matters in reality, but bear with me). The problem is - no speech is being banned. Your insane ravings are not banned or censored. They are hidden from view at the request of the community you're talking to, but they are not censored. I read and responded to one of your hidden comments quite easily. Your hero, however, is very much trying to shut this entire site down because someone correctly called him a liar, based on easily documented proof.
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No, I really don't, but your obsessive worship of that family is intriguing. I always wondered how mentally unstable someone would have to be to support them. Now I know.
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Mr. Ayyadurai is not asking for a "fair trial" to prove he is the self-proclaimed "inventor of email"; he is asking for Mr. Masnick to be silenced because Mr. Masnick claimed Mr. Ayyadurai is not the "inventor of email".
But since you seem to think a "fair trial" will somehow exonerate Mr. Ayyadurai, there is something you will want to consider here: To prove any charge of "defamation", Mr. Ayyadurai will have to prove that Mr. Masnick lied. That means Mr. Ayyadurai will have to produce proof that he had a hand in the development of the standards and protocols that govern the worldwide electronic messaging system that we all know today as email. If Mr. Ayyadurai had a hand in developing the ARPANET messaging system (which eventually evolved into and was widely adopted as email) or any of the three major email protocols (SMTP, IMAP, and POP3), he would need evidence to prove as much. If he cannot provide such evidence, he would need to provide evidence that his "EMAIL" program influenced the development of those things. If he cannot provide that evidence, Mr. Masnick would seem to have the high ground — as he would be telling the truth, which is the best defense against a charge of defamation.
But this lawsuit is not really about a "fair trial" or Mr. Ayyadurai getting his day in court. It is about Mr. Ayyadurai and his legal team trying to force either bankruptcy or a settlement out of Mr. Masnick so as to silence a critic. If Mr. Ayyadurai could prove Mr. Masnick a liar, he should have done so already; since he cannot, I have to assume Ayyadurai is the liar in this situation. Especially since all the historical records of the development of email say as much.
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Show me evidence that Shiva Ayyadurai had a hand in developing the ARPANET electronic messaging system or the three main email protocols. If you cannot do that, show me evidence that his "EMAIL" program influenced the development of the ARPANET electronic messaging system or the three main email protocols. If you cannot do that, stop wasting everyone's time — including your own. (You do know that you cannot ever get back the time you have spent spamming these comments, right?)
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Prove he said anything false about you that is not an expression of opinion, Mr. Ayyadurai.
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No, you are Shiva Ayyadurai.
No one outside of maybe the Prenda assholes or Charles Carreon has enough of a reason to continually come here and insult Mike Masnick or Techdirt. (Not even "out_of_the_blue" takes his hit-and-run trolling to this level.) You have continually referenced the impending lawsuit filed by Mr. Ayyadurai against Mr. Masnick as if you have more than a passing familiarity with it. The same goes for Mr. Ayyadurai's lawyer, Charles Harder. You extoll the virtues of America and toss around the adjective "American" as if you are someone who bought into a load of "America is #1" bullshit. Your incessant need to use the "American" label and capitalize whatever noun it is meant to label (e.g., "American Inventors" instead of "American inventors") is a typographical tic that is present in several of Mr. Ayyadurai's social media posts (that are not about shilling someone else's bullshit). The continual usage of "socialism" and "socialist" as an attempt to scare people out of conversation, the repeated attempts at creating "I'm so clever" not-really-clever insults for Mr. Masnick, your refusal to reveal your identity, and your refusal to answer a direct question all speak to a mixture of a person holding onto a lot of hatred and the well-known "basement-dwelling troll" stereotype.
I can make no other conclusion besides "this specific anonymous poster is Shiva Ayyadurai, who had no hand in inventing the electronic messaging system that evolved into the email system now present around the world".
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The bar is actually higher than that.
Since Ayyadurai, by his own admissions, is a "public figure" (he asserts in his complaint that he is a "world-renowned scientist, inventor, lecturer, philanthropist and entrepreneur") he must prove "actual malice" by Mike & Techdirt using "clear and convincing evidence", which his complaint clearly lacks.
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But in recent years the courts have interpreted the “public interest” requirement so broadly that it now applies to any lawsuit that targets speech about “any issue in which the public is interested,”
So . . . we have what the people are interested in, and human interest stories, which is what humans are interested in, and the public interest, which no one is interested in.
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@ "whittling away free speech rights with stronger copyright"
No one's "free speech" is reduced simply by not being able to use content someone else has made. -- That include parts, "fair use", or whatever: all that you're itching to object over, those are NOT essential to YOUR free speech. -- Because "free speech" pretty much by definition must be your OWN, not simply copying.
And of course, by "free speech", Techdirt actually always means links to infringing content for free.
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Re: @ "whittling away free speech rights with stronger copyright"
A reviewer of media being unable to quote part of a book or use clips from a movie as part of their review strikes me as a "stifling of speech".
I cannot think of a single legal precedent that has ever said such a thing, so I would love to see you produce a reference to such a precedent.
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Re: Re: @ "whittling away free speech rights with stronger copyright"
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I could do a simple two-word reply, but then I would get flagged.
Okay, once again, from the top and without the insanity involved.
"Stephen", actually. Right there in the name field and everything. Kinda hard to miss.
"I get it. It ain't makin' me laugh, but I get it."
It is the fact that you offer nothing meaningful or worthwhile to any given conversation, regardless of whether the conversation is about the article itself. The majority of your posts ramble on and on as if written by putting down the first thing that comes into your head. The community sees your posts as having no actual value — or appearing to be no better than a spam comment — and flags them. When enough flags get raised, your comments become hidden. Those who click the link that makes them visible can still see your comments, but there is a reason they are hidden, and the text prior to that link makes this clear.
It is not illegal to criticise America. I am a born-and-raised American, and I criticise this flaming dumpster fire of a country all the damn time. No arrests or lawsuits yet.
"Socialist" and "socialism" are not end-of-line passwords, you know. Those words do not automatically stop the conversation. And they do not frighten me or anyone else here. (Shit, I think a few people here might even be…you know…Bernie Sanders supporters.)
I cannot imagine why a judge from any part of the judiciary would care about you somehow being unable to post comments (that clearly go through) on a privately owned, privately maintained website that you cannot legally force to host your speech. But hey, you do you.
The irony here is that for such a page to exist, it would need credible evidence of censorship, and if something is censored…well, that evidence would be pretty hard to find, right? (Also: The "notability" hurdle would need to be cleared and that is just not going to happen.)
And the engraving reads, "This comment has been flagged by the community. Click here to show it". I admit, it is no "Drafted into the Skeleton War", but it has its own kind of charm.
Nah, fam, we good.
Are you sure you want to be saying such things at a time when Jewish cemeteries in America are being desecrated by way of the destruction of headstones?
You do realize that you are right on the line of admitting you are Shiva Ayyadurai, right? I mean, why else would you continually bring up Charles Harder, the impending legal action against Techdirt, and the American court system as if you were intimately familiar with all three?
(And for the record: Shiva Ayyadurai did not invent the electronic messaging system that became email.)
Nah, it is usually more of a "ptoo".
Your words, not mine.
You are spamming nonsense in the comments section of a tech-focused blog.
A Bernie Sanders fansite.
So Mr. Ayyadurai's lawsuit against Mr. Masnick is socialist propaganda?
Yes, you get a vote. Those buttons at the top-right corner of a comment allow you to vote on whether you think a comment is insightful or funny. They also allow you to flag a comment as "abusive/trolling/spam". The whole point of the system is to allow the commenter community a degree of control over what comments are deemed worthwhile to a given conversation. If your comments are continually hidden, this means enough of the community has deemed your comments as worthless. If you do not like this, you have two options: make better comments or leave.
Judges do not generally issue subpoenas for somewhat-anonymous Internet commenters unless there is a valid legal reason to do so. ("They hurt my feelings" is not a valid legal reason.)
Now you really have lost your mind.
I know about the whole "CalExit" thing, but last time I checked, California is still part of the United States. (Of course, if it were its own country, it would not be part of the American legal system. That might render certain lawsuits as null and void.)
No.
Then respect him enough to ask him these questions three:
If you want to present your side of…whatever issue you have with Mr. Masnick, do that instead of posting a bunch of worthless nonsense. If you can do that, your words will be judged accordingly. As it stands now, your words already are being judged accordingly — as worthless nonsense that deserves only to be flagged by the community.
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Re: I could do a simple two-word reply, but then I would get flagged.
Sometimes the same post gets enough votes to be marked both ways: with the ! for Insightful, and the "click here to show it" hidden status of trolling.
I've actually flagged a single post with both votes myself, at least once in the past...
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Re: @ "whittling away free speech rights with stronger copyright"
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Re: @ "whittling away free speech rights with stronger copyright"
If I am unable to quote your comment (ie: Fair Use) so I can properly rebut it within context so that anyone reading it isn't confused, then yes, my Free Speech rights are infringed upon. How do you not realize that?
I see that you quoted the line from article that you are referring to in your comment title, so apparently you also value Fair Use.
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Re: @ "whittling away free speech rights with stronger copyright"
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Public Domain and Fair Use
Heh, I was going to say, now all we need is to get our lawyers and legislators to realize that the public domain and fair use exceptions are both part of the public interest.
For whatever copyright and IP systems were meant to do once upon a time, now all they do is lock up speech so it is no longer free.
And superfluous lawsuits are pandemic to IP.
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Once again, Orwell calls it!
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Shocking, Just Shocking!
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History #Fail
Yes, that was true in 1992 when California first passed the SLAPP statute.
Seager declined to share which case, so I decided to find it myself: Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1039, 72 Cal. Rptr. 3d 210, 218 (2008).
The Nygard court noted that the legislature amended the statute in 1997, adding a directive to construe the statute broadly “to address recent court cases that have too narrowly construed California's anti-SLAPP suit statute.” (citing Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1296 (1997–1998 Reg. Sess.) for July 2, 1997, hg., p. 2.)).
The bottom line: Courts weren't construing the SLAPP statute broadly enough, so the legislature told them to broaden the interpretation. The Nygard court did:
Good for them. If Seager wants to change the law, she is free to use her right to petition. She is not free to re-write history.
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Re: History #Fail
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Re: Re: History #Fail
Sure, anyone can file a lawsuit. Have fun with that.
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If this is the sort of brain that the Alexander Hamilton Institute produces our new troll can keep his one million dollars.
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Oh, sure. And Obama's not the leader of ISIS either, right? Sad.
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Of course she doesn't get it
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Uses of Anti-SLAPP
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