Taylor Swift's Legal Rep Tries To Kill Critical Blog Post With Bogus Defamation, Copyright Claims

from the flailing-badly dept

Tue, Nov 7th 2017 10:44am — Tim Cushing

Taylor Swift's legal representation is busy again. Really, her reps are never not busy, thanks to her desire to capture the entirety of the Taylor Swift market, but this particular legal threat -- aimed at a blogger -- oversteps its bounds egregiously.

PopFront editor Meghan Herning wrote a post detailing Swift's unofficial position as a white supremacist hero. While there's nothing in the post claiming Swift has directly encouraged this subset of her following, it did point out that she's remained curiously silent on race issues, as well as made use of Nazi-esque imagery in her videos.

Swift is not amused, apparently. William Briggs of Venable LLP sent threatening letter [PF] demanding the removal of the PopFront post. The letter claims the post is defamatory and filled with "malicious lies." More specifically, Swift apparently doesn't care for the following post content:

The story knowingly regurgitates, repeats, and attempts to expand on a malicious lie. Among other things, the story propagates such hideous falsehoods as: 1) “Taylor’s lyrics play to [a] subtle, quiet white support of a racial hierarchy;” 2) that there are similarities between Ms. Swift and Adolf Hitler; 3) that the “lyrics [of “Look What You Made Me Do”] are the most explicit in speaking to white anger and affirming white supremacy;” and 4) that Ms. Swift’s purported silence regarding white supremacy means she supports Donald Trump and identifies with the white supremacist/al-right movement.

The rest of the cease-and-desist is more of an angry letter to the editor. The legal firmness of Venable LLP's stance takes a backseat to general, non-litigious complaints about the post's assertions. Swift's attorney says his client has done plenty to combat racial inadequacy and is under no obligation to campaign for the Hillary Clintons of the world. Fair enough, but really not the sort of thing actionable legal claims can be built on.

Unfortunately for Swift and Venable LLP, the ACLU has stepped in to represent PopFront and Meghan Herning. It has answered with a letter [PDF] of its own that completely disassembles the stupid, sometimes disingenuous statements made by Swift's legal rep.

First, the blog’s statement that “Taylor’s lyrics seem to play to the same subtle, quiet white support of a racial hierarchy that benefits them,” is protected opinion. As an initial matter, your letter misquotes the blog post by omitting the word “seem,” a term signaling that what follows is an opinion. This omission suggests that you well understand that the actual post is stating an opinion, protected by the Constitution. If you are going to write a letter accusing a person of misrepresentation, you should avoid misrepresenting what she wrote.

The ACLU's letter points out Taylor Swift is a celebrity. The defamation bar is much higher for public figures, especially since the same fame that grants them money, power, and all the other nice things in life also makes them targets for criticism. Criticism isn't immediately synonymous with defamation, no matter how much Swift's lawyer would like it to be. And, again, the ACLU's letter makes this point while knocking the C&D for its attempt to put words into the blog post's author's mouth.

[Y]our letter asserts what the blog does not, “that Ms. Swift’s purported silence regarding white supremacy means she supports Donald Trump and identifies with the white supremacist/al-right [sic] movement.” It is not clear what your statement refers to, because there is nothing in the post that says this. The post does state that “there is no way to know for sure if Taylor is a Trump supporter or identifies with the white nationalist message, but her silence has not gone unnoticed.” But this is a far cry from stating that she supports Trump or identifies with the alt-right. You are of course absolutely right that “Ms. Swift has no obligation to campaign for any particular candidate or broadcast her political views.” But nor does she (or, probably more to the point, her lawyers) have the authority to tell other people the conclusions they can draw from her decision to keep silent.

Thus, however, “hideous” you consider these statements to be, none of them are actionable.

To top it all off, the legal threat came with a paragraph claiming the letter was protected IP and could not be reproduced or published without permission. This is not just rank bullshit but it's also incredibly stupid. There's almost no phrase more guaranteed to result in permissionless publication than this one:

This is a confidential legal notice and is not for publication. Any publication, dissemination or broadcast of any portion of this letter will constitute a breach of confidence and a violation of Copyright Act. You are not authorized to publish this letter in whole or in part absent our express written authorization.

The ACLU makes this point by publishing Venable LLP's letter along with the following paragraphs in its response:

First, the claim of confidentiality can only be described as odd, particularly coming from a lawyer; you cannot really expect that a person who receives a letter like this will feel any duty to keep this matter a little secret between the two of you. And it is not without irony that at one point you ask that your “letter stand as yet another unequivocal denouncement by Ms. Swift of white supremacy and the altright,” but then purport to forbid anybody from making the letter public.

Second, you cannot use copyright law as a weapon to suppress your letter, because reproduction of it here is fair use under 17 U.S.C. § 107. Attaching the letter to this one transforms it from a clumsy legal threat to suppress constitutionally protected speech into an exposé of that attempt in order to educate others who might receive these types of letters that they need not be intimidated.

PopFront and the ACLU will not be caving in to Swift's bogus legal threats. Nor will they be building a time machine to comply with the demands for a retraction "no later than" one day before the legal threat was actually sent.

And later in the letter:

Stupid defamation claims and bogus copyright language are Streisand-bait. Someone working for a top-tier law firm and representing a top-tier artist should know better. And perhaps attorney William Briggs does know better, but has chosen to serve his client as well as possible given the circumstances. But providing top tier service doesn't necessarily mean acquiescing to every client demand. Briggs and Venable should have taken a pass on this one. Instead, they're going to be the recipient of the sort of criticism they attempted to quell with this misguided demand letter.

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Filed Under: alt right, copyright, defamation, fere speech, meghan herning, slapp, taylor swift, threats, william briggs
Companies: aclu, popfront, venable llp

59 Comments

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Baron von Robber, 7 Nov 2017 @ 10:47am

I'm sure she'll eventually come out and say there are fine people on both sides. %-/
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Ninja (profile), 7 Nov 2017 @ 10:48am

What am I listening?

https://youtu.be/44icfBa5830

*sings*

With the added Godwin in the middle. Bravo!
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Ninja (profile), 7 Nov 2017 @ 10:51am

Re:
Donald Swift spoke!

There are fine people black and white (yellow, red, blue?) yes. And white supremacists suck, all of them.
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Baron von Robber, 7 Nov 2017 @ 10:58am

Re: Re:
Muammar Covfefe was probably thinking "both sides" = Nazi & KKK
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This comment has been flagged by the community. Click here to show it

Anonymous Coward, 7 Nov 2017 @ 10:59am

Oh, the ACLU is always against least hint of pro-American.
As indeed, are the foreigners who re-write here anti-American.

SHEESH. IT'S ONLY A COMPLAINT LETTER. Your implicit position is that Swift can't complain of what on surface is extreme and unfounded accusation.
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Baron von Robber, 7 Nov 2017 @ 11:02am

Re: Oh, the ACLU is always against least hint of pro-American.
Donald loves the poorly educated for a reason.
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Anonymous Coward, 7 Nov 2017 @ 11:03am

Re: Oh, the ACLU is always against least hint of pro-American.
Dissent is the highest form of patriotism you gun barrel fellating pseudo Nazi.
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Anonymous Coward, 7 Nov 2017 @ 11:04am

Re: Oh, the ACLU is always against least hint of pro-American.
Demand/threat letter sent by lawyers != "only a complaint letter"
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Anonymous Coward, 7 Nov 2017 @ 11:05am

"...the ACLU has stepped in..."
"Cry 'Havoc!', and let slip the dogs of war." Sic 'em, boys!
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Anonymous Coward, 7 Nov 2017 @ 11:12am

Re: Re: Oh, the ACLU is always against least hint of pro-American.
when did that happen again? Dissent was unamerican as of last year.
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Jordan Chandler, 7 Nov 2017 @ 11:14am

Lawyers
Do all lawyers do whatever they can to get their end goal for their clients regardless of the law, ethics, morals, etc?

It seems that way, especially if they work for the Feds or are a prosecutor.
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Baron von Robber, 7 Nov 2017 @ 11:14am

Re: Re: Re: Oh, the ACLU is always against least hint of pro-American.
I didn't get the memo.
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Anonymous Coward, 7 Nov 2017 @ 11:25am

Re: Oh, the ACLU is always against least hint of pro-American.
A complaint letter can be safely ignored and carries no legal weight.

Considering that instead of asking for them to do something, the letter made demands with the promise of legal action, and the blog was required to respond shows it's quite obvious this is NOT just "a complaint letter".

Get your head out of the sand and educate yourself.
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Anonymous Coward, 7 Nov 2017 @ 11:25am

Re: Lawyers
(Some) Lawyers and cops and politicians seem to tell blatant lies because they assume that others won't know the truth or be able to find it out and it probably works a lot of the time, so they keep doing it. They know what they're likely to get away with. Unfortunately for them, there are other lawyers to call them out for their bullshit.
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Anonymous Coward, 7 Nov 2017 @ 11:26am

Re: Lawyers
No, but they are the ones that make headlines.
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Anonymous Anonymous Coward (profile), 7 Nov 2017 @ 11:27am

The one thing publicists employed by celebrities really fear...
...Taylor who????

Is it any wonder why the keep the Streisand Effect fully employed?
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Rekrul, 7 Nov 2017 @ 11:36am

I know it's not the point of the article, but I wanted to comment that I think the people claiming Taylor Swift is a white supremacist are nutjobs. I watched the video in question and it just looked like a weird, kinky video to me. If I'd never heard anything about it or her, I wouldn't find it racist.

With enough effort, you could probably make a case for why Mr. Rogers was secretly a racist.

That said, I've never really been a fan of Taylor Swift. I'm kind of unnerved by the way she literally looks like plastic in virtually every photo and video. Often you seem promotional photos where too much airbrushing has made the model look like a mannequin, but for some reason, Taylor Swift seems to look like that in real life. Either she uses way too much makeup, or she's the first person in history born without pores.
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Anonymous Coward, 7 Nov 2017 @ 11:39am

Trying to silence a critic is one thing...
But demanding that she invents a time machine to retract her statements? That's going a bit too far, methinks.
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Anonymous Coward, 7 Nov 2017 @ 11:39am

Re: Oh, the ACLU is always against least hint of pro-American.
"It's only the threat of an expensive lawsuit if you don't follow my demands!"
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Teamchaos (profile), 7 Nov 2017 @ 11:51am

Re: Re: Re: Oh, the ACLU is always against least hint of pro-American.
Dissent was unamerican starting in 2008. Keep up.
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Baron von Robber, 7 Nov 2017 @ 12:12pm

Re: Re: Re: Re: Oh, the ACLU is always against least hint of pro-American.
Last year, then 2008? So many memos I missed.
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crade (profile), 7 Nov 2017 @ 12:27pm

Re:
They don't really claim such.. What they claim is more like that she is a icon to the white supremacists and refuses to denounce them too loudly
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Anonymous Coward, 7 Nov 2017 @ 12:29pm

Are the lawyers saying that writing "you are a supporter of the Presdident" is defamation or a malicious lie?

Times really have changed.
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Anonymous Coward, 7 Nov 2017 @ 12:29pm

If she is going to be intentionally damaged by someone trying to associate her with white supremacy, then she is well within her right to go after them and the ACLU is wrong. In todays climate, your life can be damaged by some fool claiming you associate with particular groups.

Nobody has done more damage to peoples perception of civil rights in the last 20 years than the ACLU.
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Anonymous Coward, 7 Nov 2017 @ 12:33pm

Re: Lawyers
The law is open for interpretation. It is not the lawyers job to judge on a case but to do the best for their client within the legal framework. If you don't do everything you can then why should anyone hire you?

As for morals or ethics: Laws represent the moral or ethics of a society. i.e. gay marriage wasn't allowed, now it is. Change of moral,ethics turned law.
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Anonymous Coward, 7 Nov 2017 @ 12:35pm

Re:
If someone is intentionally making false statements that they claim are true about someone, then yes, in certain circumstances you can take viable legal action against them.

What you can't do is take anybody and everybody to court who happens to have an opinion about you. Which is exactly what this is.

The blog is not making false accusations, they are stating observable facts and drawing conclusions and making opinions based on those observable facts. There is nothing legally actionable about any of this, nor is there intent to damage her reputation. It's all just opinion and speculation.
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Anonymous Coward, 7 Nov 2017 @ 12:40pm

Re: Re: Lawyers
Generally speaking, no the law is not open to interpretation. It is illegal to commit murder, I don't see how that is open to interpretation.

It is not the lawyers job to judge on a case, but that only applies when the outcome is in question. It is lawyers' job to explain to their clients what the law is/says and advise them whether bringing legal action would be worthwhile or not. In this case the lawyers have either clearly failed at that job or were told to do it anyway regardless.
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Baron von Robber, 7 Nov 2017 @ 12:42pm

Re:
Doesn't seem to affect the POTUS.
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That Anonymous Coward (profile), 7 Nov 2017 @ 12:49pm

My only entertainment out of all of this was watching someone on teh Twitters trying to tell Adam that he didn't know the law, and trying to box him into a corner.
She wasn't very bright, like Taylors lawyer.
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Anonymous Coward, 7 Nov 2017 @ 12:49pm

Consider the environment today. Consider what is happening with boycotts, bans, people losing their job.

Writing someone is a Nazi or a White Supremacist could very well be libel. "Ms. Swift’s purported silence regarding white supremacy means she supports Donald Trump and identifies with the white supremacist/al-right movement."

The writer is accusing Taylor Swift of identifying (or being) a white supremacist.) Can the writer prove that Swift is a white supremacist? If not true, how is this not libel?
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Anonymous Coward, 7 Nov 2017 @ 12:54pm

Re:
Because it is opinion and speculation. That's how it's not libel.
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Anonymous Coward, 7 Nov 2017 @ 1:15pm

Re:
“No one has done more damage... than the American Civil Liberties Union.” How bout you go back, and maybe try a second draft there, champ.
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Anonymous Coward, 7 Nov 2017 @ 1:19pm

So there were no Nazi's in Charlotte? So people were not fired for being identified as being Nazi's recently?
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Anonymous Coward, 7 Nov 2017 @ 1:20pm

Re:
>The writer is accusing Taylor Swift of identifying (or being) a white supremacist.

From the actual blog:-

>“there is no way to know for sure if Taylor is a Trump supporter or identifies with the white nationalist message,

Where does that say Taylor Swift is definitely a white supremacist?
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crade (profile), 7 Nov 2017 @ 1:37pm

Re:
People were fired because people produced evidence that they were scumbags not because people said they *thought* they were scumbags
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Thad, 7 Nov 2017 @ 1:40pm

Re: Re: Re: Re: Oh, the ACLU is always against least hint of pro-American.
The last year of the Bush Administration? I'm pretty sure there was a lot of dissent then.
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Anonymous Coward, 7 Nov 2017 @ 1:56pm

Briggs. His name is William Briggs, not Biggs. With an R. Says so in both his letter and in the ACLU response.

Just thought I'd point out the error, since I was brought here because I have a Google Alert set up for stories about William Biggs for totally unrelated reasons.
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Anonymous Coward, 7 Nov 2017 @ 2:17pm

Re:
His friends call him Bigly.
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Anonymous Coward, 7 Nov 2017 @ 2:26pm

Re: Re: Lawyers
"If you don't do everything you can then why should anyone hire you?"

Because some people value ethics and morality over greed and abuse of power.

"Laws represent the moral or ethics of a society"

Oh holy shit no! Law is very much separated from morality and ethics. Not all laws are moral and not all morality is legal and vice versa. It's immoral to let people starve, but in some places it's against the law to feed the homeless. It was legal to own slaves prior to the Civil War but it was never moral to do so. It's legal to bribe politicians as long as you call it "campaign donations" or "lobbying" but it's unethical to do so.
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Anonymous Coward, 7 Nov 2017 @ 3:05pm

Re:
It’s so cute how you think you actually have a point.
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Anonymous Coward, 7 Nov 2017 @ 3:36pm

Re: Re: Re: Re: Re: Oh, the ACLU is always against least hint of pro-American.
I remember dissent back in the 60's - and that could get you shot by the national guard
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Anonymous Coward, 7 Nov 2017 @ 3:41pm

Re: Re:
And what, exactly, is their interest in her .. no way does it have anything to do with their sexist attitudes - LOL
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Anonymous Coward, 7 Nov 2017 @ 3:46pm

Re:
"If she is going to be intentionally damaged by someone trying to associate her with white supremacy, then she is well within her right to go after them"

Why has she not done this?

" your life can be damaged by some fool claiming you associate with particular groups. "

Papa John's trying to save their ass - lol

"Nobody has done more damage to peoples perception of civil rights in the last 20 years than the ACLU."

Please explain this as I have not been privy to the details
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Anonymous Coward, 7 Nov 2017 @ 3:49pm

Re:
"Writing someone is a Nazi or a White Supremacist could very well be libel"

Are opinions liable? I am not a lawyer, so I do not know - please explain.
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Tin-Foil-Hat, 7 Nov 2017 @ 5:29pm

Response to: Anonymous Coward on Nov 7th, 2017 @ 12:29pm
I don't think she's a white supremacist. It's just some stupid blogger's opinion. Me and millions of others who don't read inane bs would have never known anything about it. But now that the lawyers are involved ...
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Anonymous Coward, 7 Nov 2017 @ 5:46pm

Re: Oh, the ACLU is always against least hint of pro-American.
out_of_the_blue just hates it when due process is enforced.
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orbitalinsertion (profile), 7 Nov 2017 @ 8:17pm

Re: Re: Lawyers
Lawyers turn down bad cases all the time. It's the ones who will make money no matter what who will entertain these idiotic actions on behalf of the wealthy.
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orbitalinsertion (profile), 7 Nov 2017 @ 8:22pm

At least now i know the source of the weird song playing in the Circle K.
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Kal Zekdor (profile), 7 Nov 2017 @ 9:39pm

Re: Re: Re: Lawyers

Generally speaking, no the law is not open to interpretation. It is illegal to commit murder, I don't see how that is open to interpretation.

Two words for you: justifiable homicide.

The reason we have judges in the first place is because the law is open to interpretation. Judges are the people we have empowered to do that interpretation.

That said, a major part of any lawyer's job is understanding case law, that murky quagmire of standing interpretations and precedents. Any lawyer worth their salt should have known exactly how this would've turned out.
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Anonymous Coward, 7 Nov 2017 @ 9:55pm

Re:
And what part of copyright law would allow you to fight Nazis with?

Nothing, of course. Which goes to show how dumb copyright law has become.
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That One Guy (profile), 7 Nov 2017 @ 10:41pm

Re: Re: Re: Re: Lawyers
Any lawyer worth their salt should have known exactly how this would've turned out.

That's the problem, they almost certainly did know how it would turn out, which is why they felt safe sending the letter.

Had the ACLU not stepped in to offer assistance then the blogger likely would have folded and agreed to the demands, not because they were wrong, but simply because Swift can afford to burn more cash in legal fees. Being on the right side of the law only gets you so far when the opposition can simply outspend you and drive you under that way, something I imagine just about any lawyer, and certainly a firm knows full well.
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PaulT (profile), 8 Nov 2017 @ 4:19am

Re:
"So there were no Nazi's in Charlotte?"

What happened in Charlotte?

Perhaps you were talking bout the events in Charlottesville, where Nazis gathered and one decided to kill counter-protesters, but you're the first one to mention that. Weird.

"So people were not fired for being identified as being Nazi's recently?"

For *being* Nazis, sure. Is there a problem with that, or are you just too dense to understand the difference between silly gossip and speculation, and verifiable evidence of some assholes proudly marching in a Nazi rally?
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Anonymous Coward, 8 Nov 2017 @ 9:44am

Re: Re:
Because people with horrible values to my own should have no right to enjoy my product in a capitalist society.

Criminals also listen to music, should I disavow every single one of them or risk having my music be unworthy of listening to by everyone else?

What person really has control over their fans? Are they obligated to have this impossible control? Look at Eminem and Dixie Chicks. Both of them lost fans and money over their political stances.

Therefore, the most financially wise thing to do as a celebrity is to (publicly) claim no political stance at all.

Swift's lawyers being censorious just turned that blog post (more?) viral. Regardless of the truth of the blog posts' statements, the lawyers' involvement has already turned the public against them.
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Anonymous Coward, 8 Nov 2017 @ 1:44pm

Re: Re: Re: Lawyers
"Because some people value ethics and morality over greed and abuse of power."

True but if you hire a lawyer and s/he says "I'm not going to do the best I can to get you out, we both know you are guilty" then would you hire them? Unless you like prison I guess that is a no.

"It's immoral to let people starve, but in some places it's against the law to feed the homeless."
Then advocate to change the law. Write/speak to people in charge. I'm not saying the law is perfect but in general it changes over time to represent the society. And if feeding the homeless is against the law that probably says more about the society than the law imho.

"It was legal to own slaves prior to the Civil War but it was never moral to do so."

At the time, sure it was. At least for some people. Don't look at it from our point of view when it is obvious that slavery is a bad thing but put yourself in that time. 100 years from now maybe people think eating animals is cruel.
As in "It was never moral to do so". Yet I do enjoy a good steak and think it's tasty and ok to eat it.
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Kal Zekdor (profile), 8 Nov 2017 @ 3:51pm

Re: Re: Re: Re: Re: Lawyers
In isolation, sure, but this sort of thing indicates a pattern. Do this enough times and it's inevitable that someone ends up making a stand, and your attempt to silence criticism ends up doing more harm than the person you were trying to silence. Of course, we need a strong federal anti-SLAPP law, so fewer people are intimidated into folding quietly.
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Mark D. (profile), 9 Nov 2017 @ 7:19am

Re: Re: Re: Re: Lawyers
"True but if you hire a lawyer and s/he says "I'm not going to do the best I can to get you out, we both know you are guilty" then would you hire them? Unless you like prison I guess that is a no."

The actions a lawyer can take are, in theory, constrained by law and professional rules of conduct that must be adhered to. A lawyer is not supposed to be just a hired goon, but someone that gives professional advice. "The best that they can do" is not the same as "anything the client wants".

In the case of criminal defense, the lawyer is not allowed to advise the client to lie to try and get aquitted. What they can do is pound on the admissibility of evidence, cross-examine witnesses, or try to get a plea bargain to reduce the client's sentence.

In the case of speech disputes like the one here, Swift's lawyers are blowing smoke. They have no case, and if they have any degree of competence they know that the letter's a bunch of bull shit. In a just world this would be a sanctionable offense either as malfeasance or incompetence.
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Mark D. (profile), 9 Nov 2017 @ 7:34am

Re:
"Nobody has done more damage to peoples perception of civil rights in the last 20 years than the ACLU."

That is because the ACLU actually cares about principles, and not stupid tribalist loyalty. They protect the rights of everyone that they can.

Maybe the blog poster is a nut job, but saying "I think Swift is racist because of X, Y, and Z" is not legally actionable, and Swift has many methods to rebut that conclusion if it's so bothersome to her.
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Anonymous Elbonian, 13 Nov 2017 @ 4:48am

Just racking up charges
Methinks they be just racking up charges in the name of you-hired-us-to-protect-your-ip-(we-charge-$100-per-hour)
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Wyrm (profile), 13 Nov 2017 @ 12:46pm

Re: Trying to silence a critic is one thing...
Not to mention the issue with the grandfather paradox.
If the blogger complies and removes the post before the 24th, then the lawyer doesn't have a reason to send his C&D on the 25th, so the blogger has no reason to remove the post... You get the point.
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