stories filed under: "charles harder"

Trump Campaign Suing All His Media 'Enemies': Files Another Silly SLAPP Suit Over CNN Opinion Piece

from the opening-up-our-libel-laws dept

Mon, Mar 9th 2020 9:30am — Mike Masnick

Just as the country starts dealing with what the hell it's going to be doing about Covid19, the President and his campaign have decided that now is the time to file laughable SLAPP suits against every one of the media entities on his usual thin-skinned enemies list. First it was the NY Times, then it was the Washington Post, and on Friday, it was the third in his triumvirate of media he loves to hate: CNN. As with the first two, this is yet another Charles Harder joint, and, as with the first two, this is suing over an opinion piece. Also, as with the first two, this is a laughably vexatious lawsuit, in which he is assaulting the very 1st Amendment he has sworn an oath to protect and defend.

You can read the CNN opinion piece that the campaign is suing about. It's by Larry Noble, the former general counsel for the Federal Election Commission, and is similar in many ways to the pieces he sued about in the Washington Post, arguing that an interpretation of the Mueller report in a manner displeasing to the President is somehow defamatory. That's ridiculous and everyone involved in this lawsuit should be embarrassed.

On or about June 13,2019, CNN published an article on the www.CNN.com website entitled "Soliciting dirt on your opponents from a foreign government is a crime. Mueller should have charged Trump campaign officials with it" by Larry Noble (the "Defamatory Article"). The Defamatory Article claims, among other things, that the Campaign "assessed the potential risks and benefits of again seeking Russia's help in 2020 and has decided to leave that option on the table." The Defamatory Article does not cite to any facts or reasoning in support of this claim.

The Defamatory Article is false. In fact, the Campaign has repeatedly and openly disclaimed any intention to seek Russian involvement in the 2020 election. The examples of this are too numerous to fully enumerate, but examples include: (a) then-Press Secretary Sarah Sanders stated on August 2,2078 that "[s]ince the beginning of his administration, President Trump has implemented a whole-of-government approach to safeguard our nation's elections. The President has made it clear that his administration will not tolerate foreign interference in our elections from any nation-state or other dangerous actor"; (b) on September 12, 2018, while signing an executive order imposing sanctions on foreign countries who interfere in United States elections, the White House issued a statement that "the United States will not tolerate any form of foreign meddling in our elections"; and (c) on May 13, 2019, the White House stated it would not use any information hacked or stolen by foreign adversaries in the 2020 election.

Contrary to this summary in the complaint, if you read the actual article by Noble, he clearly cites the basis for his arguments, and clearly lays out the facts on which he bases his opinion. Indeed, he cites some very specific details and the specific law he is talking about. Here's just a snippet, but it goes much further in details in the article.

During the meeting, held in Trump Tower, Trump Jr., Kushner and Manafort were told that two brothers who "had engaged in tax evasion and money laundering" had donated to the Democratic National Committee or the Clinton campaign. According to the report, "Trump Jr. asked follow-up questions about how the alleged payments could be tied specifically to the Clinton Campaign," but was told that the Russians "could not trace the money once it entered the United States." Apparently, not impressed with the information, Kushner "became aggravated and asked, "(W)hat are we doing here?'" The Federal Election Campaign Act (FECA), 52 U.S.C. §30121(a)(1), prohibits foreign nationals from "directly or indirectly" contributing "money or other thing of value" in connection with any US election. Another part of the law prohibits a person from "knowingly soliciting, accepting or receiving contributions or donations from foreign nationals." If a person acts knowingly and willfully, meaning with general knowledge that their actions were unlawful, and the value of the contribution is $2,000 or more, it is a criminal violation. If the value is $25,000 or more, it is a felony.

When Trump Jr. replied he loved it to the offer of free Russian opposition research intended to help his father win the election, and then attended a meeting that included Kushner and Manafort to receive that information, he solicited an illegal contribution from a foreign government.

This is not some random tossed off argument -- nor does it come anywhere even remotely close to meeting the necessary bar for defamation.

Once again, the intent is likely performative -- rallying Trump's base against the media as we head into election season -- rather than with any legitimate basis in law.

This case has been filed in federal court in Georgia, home of CNN. Some may note that Georgia actually has a semi-decent anti-SLAPP law, but unfortunately (and, I believe, incorrectly as a matter of law), the 11th Circuit is one of those that has said that state anti-SLAPP laws do not apply in federal court (in fact, it did so in a case involving CNN -- Carbone v. CNN, if you're keeping track). That means, CNN won't be able to make use of the anti-SLAPP law to get the case kicked out quickly, and to have the Trump campaign pay attorneys' fees.

As with the other two cases, this one is being brought on behalf of the campaign, rather than Donald Trump himself as a party. Whether or not this limits Trump's own liability -- or his exposure to potential discovery requests -- will be an interesting element to watch as these (and any other) cases move forward.

Either way, between these Harder/Trump campaign suits and the various Steven Biss/Devin Nunes suits, it appears that the Republican party is quickly positioning itself as the party of chilling effects and silencing a free press. This is shameful behavior and should be called out as such.

Filed Under: 11th circuit, 1st amendment, anti-slapp, charles harder, defamation, donald trump, free speech, georgia, larry noble, opinions, slapp
Companies: at&t, cnn, time warner

Donald Trump And Charles Harder Continue Their Assault On The 1st Amendment, Suing The Washington Post

Free Speech

from the opening-up-our-libel-laws dept

Thu, Mar 5th 2020 12:20pm — Mike Masnick

It appears whatever modest amount of restraint that our President had regarding his early promise to "open up our libel laws" have gone away. As you may recall, during the campaign he made such a promise, perhaps not realizing that defamation laws are not under the purview of the federal government -- and any changes at the state level are limited by the 1st Amendment of the Constitution (not something he can write away with an executive order). Right before he was inaugurated, he seemed to back down a little on that promise -- telling the NY Times that someone had pointed out to him that with more open libel laws, he was more likely to get sued as well.

Over the first three years of his Presidency, while constantly lashing out ridiculously at the press, and the Washington Post and the NY Times in particular -- including his constant authoritarian attack of calling them "the enemy of the people" -- he had not sued. Until last week when he tapped lawyer Charles Harder (who, we'll remind you, was the lawyer in the lawsuit against us), to represent the Trump Campaign (rather than Donald directly) to sue the NY Times over an opinion piece. Trump and Harder have now done so again, this time suing the Washington Post over two opinion pieces.

The complaint -- like the one against the NY Times -- is laughable and will be thrown out of court. Again, opinions are not defamatory, and the articles were opinion pieces. The statements they make, that the Trump campaign declares defamatory are basically all ones based on disclosed facts. The complaint is short and not very detailed. It highlights just a single line in each post that it claims is defamatory:

On or about June 13, 2019, The Post published the article entitled “Trump just invited another Russian attack. Mitch McConnell is making one more likely” (the “June 13 Article”), by Greg Sargent, which contained the defamatory claim that Special Counsel Robert Mueller concluded that the Campaign “tried to conspire with” a “sweeping and systematic” attack by Russia against the 2016 United States presidential election.

The statement in the June 13 Article is false and defamatory. In fact, Special Counsel Mueller’s Report on the Investigation into Russian Interference in the 2016 Presidential Election released on or about April 18, 2019 (the “Mueller Report”), nearly two months before the June 13 Article, came to the opposite conclusion of the June 13 Article, namely, the Mueller Report concluded there was no conspiracy between the Campaign and the Russian government, and no United States person intentionally coordinated with Russia’s efforts to interfere with the 2016 election.

On or about June 20, 2019, The Post published the article entitled “Trump: I can win reelection with just my base” (the “June 20 Article”), by Paul Waldman, which contains the defamatory statement “who knows what sort of aid Russia and North Korea will give to the Trump campaign, now that he has invited them to offer their assistance?”

The statement in the June 20 Article is false and defamatory. There has never been any statement by anyone associated with the Campaign or the administration “inviting” Russia or North Korea to assist the Campaign in 2019 or beyond. There also has never been any reporting that the Campaign has ever had any contact with North Korea relating to any United States election.

These are both issues that are subject to interpretation, and neither piece comes anywhere even remotely close to the necessary standard for defamation of a public figure (which, uh, the President absolutely is). On the first one, Harder is leaning heavily on the "conspiracy" word. While the Report did not show direct coordination between the campaign and the Russians, it did show multiple connection points. Indeed, the report itself says:

The investigation also identified numerous links between the Russian government and the Trump Campaign. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.

So this comes down to interpretation. The Mueller report showed links between the Russians and the Campaign, but did not find enough evidence to prove a conspiracy -- which is not definitive evidence of no conspiracy. Indeed, the report shows multiple situations in which members of the Trump Campaign appeared interested in working with the Russian government -- but not enough evidence of an actual conspiracy was found. But to say that's evidence of no effort to conspire is just silly. The opinion piece's summary of that as "tried to conspire" is... not anywhere near defamatory, in which case the Post would have to have believed this was false or published it with reckless disregard for the truth. That's... not the case.

On the second one, I'll note, with amusement, that the final sentence only mentions North Korea as a government that the Trump Campaign has not discussed the election with and leaves out Russia. Interesting. But, more to the point, the article in question was discussing a Trump interview with George Stephanopoulos in which Trump is asked if he'd accept damaging information on election opponents from foreign nations, and Trump replied:

"I think you might want to listen, there isn't anything wrong with listening," Trump continued. "If somebody called from a country, Norway, [and said] ‘we have information on your opponent' -- oh, I think I'd want to hear it."

That is easily, and fairly, turned into the statement in the Post opinion piece that the Campaign was "inviting" foreign help. There is no way that such a statement could or would be seen as defamatory.

In the meantime, I feel the need to remind both Harder and Trump that not too long ago, in defending Trump against a defamation lawsuit in which Trump was the defendant, Harder wrote a stirring statement in support of the 1st Amendment and warned that:

A defamation standard that turns typical political rhetoric into actionable defamation would chill expression that is central to the First Amendment and political speech.

I wish the two of them would remember that sometimes.

Filed Under: 1st amendment, anti-slapp, charles harder, defamation, donald trump, free speech, slapp
Companies: washington post

Trump Campaign Files Laughably Stupid SLAPP Suit Over A NY Times Opinion Piece

Defamation

from the not-how-any-of-this-works dept

Thu, Feb 27th 2020 3:20am — Mike Masnick

Welp, Donald Trump promised to "open up libel laws" back when he was first running for President, and his campaign has now decided to test out some moronic theory of defamation in suing the NY Times over an opinion piece. Just to be clear upfront: the lawsuit is bad. It will not succeed and appears to have no intent to succeed. Instead, it appears to be almost entirely performative -- including the kind of text you'd normally see on a political website, rather than in a lawsuit filed by a serious lawyer. But, hey, this one is filed by Charles Harder, who has a bit of a history of filing such lawsuits (including against me!).

Everything about this lawsuit is silly. First, it's suing over an opinion piece published by the NY Times in March of 2019 by Max Frankel. Just the fact that it's an opinion piece (opinions are not defamatory) should give you a sense of where this is going. The article itself, entitled "The Real Trump-Russia Quid Pro Quo" makes a pretty banal observation: that whether or not there was any direct "collusion" between the Trump campaign and the Russian government, it doesn't matter if both sides expected certain outcomes (i.e., if Trump's campaign expected the Russians to help get him elected, and if the Russian's expected that Trump would favor pro-Russia policies -- then there would be no need for actual direct communication between the two). Whether or not you think that's an accurate summation of what happened, it's certainly an understandable opinion for one to hold.

But, Trump and Harder try to argue that this opinion is not true. But everything about the argument made in the lawsuit is silly.

The Defamatory Article does not allege or refer to any proof of its claims of a “quid pro quo” or “deal” between the Campaign and Russia. Rather, the Defamatory Article selectively refers to previously-reported contacts between a Russian lawyer and persons connected with the Campaign. The Defamatory Article, however, insinuates that these contacts must have resulted in a quid pro quo or a deal, and the Defamatory Article does not acknowledge that, in fact, there had been extensive reporting, including in The Times, that the meetings and contacts that the Defamatory Article refers to did not result in any quid pro quo or deal between the Campaign and Russia, or anyone connected with either of them.

But, if you read the actual Times piece (which is quite short), it doesn't allege any actual deal. Indeed, it says right up front that there didn't need to be a deal. Literally the 1st paragraph of Frankel's piece lays out the lack of any need for an explicit quid pro quo, highlighting that merely having everyone know what to expect is more than enough.

Collusion — or a lack of it — turns out to have been the rhetorical trap that ensnared President Trump’s pursuers. There was no need for detailed electoral collusion between the Trump campaign and Vladimir Putin’s oligarchy because they had an overarching deal: the quid of help in the campaign against Hillary Clinton for the quo of a new pro-Russian foreign policy, starting with relief from the Obama administration’s burdensome economic sanctions. The Trumpites knew about the quid and held out the prospect of the quo.

That's not insinuating a deal. It's doing the opposite -- saying that a deal wasn't needed.

But the lawsuit assumes an entirely different interpretation. Even worse, its "proof" that the NY Times must know this reporting is false is the Mueller report that came out three weeks after the article was published. How was the NY Times supposed to know the details of a classified report nearly a month early in an opinion piece? That is left as a mystery for the ages. The Times piece was published on March 27th. As the filing admits, the Mueller report wasn't released until April 18th.

The Times’ story is false. The falsity of the story has been confirmed by Special Counsel Robert Mueller’s Report on the Investigation into Russian Interference in the 2016 Presidential Election released on or about April 18, 2019 (the “Mueller Report”), and many other published sources, that there was no conspiracy between the Campaign and Russia in connection with the 2016 United States Presidential Election, or otherwise. Among other things, there was no “deal,” and no “quid pro quo,” between the Campaign or anyone affiliated with it, and Vladimir Putin or the Russian government.

Indeed, Harder tries to argue that the reason the NY Times put this piece out prior to the Mueller report was that it somehow knew the Mueller report would prove the article wrong. Which, of course, it did not. The whole case seems to be based on Harder and/or the Trump campaign misreading the Frankel article.

There's also a lot of garbage in the filing that no serious lawyer would put into a filing, unless it was to appeal to a political base, rather than a judge.

It is not entirely surprising that The Times would publish such a blatant false attack against the Campaign. There is extensive evidence that The Times is extremely biased against the Campaign, and against Republicans in general. This evidence includes, among other things, the fact that The Times has endorsed the Democrat in every United States presidential election of the past sixty (60) years. Also, Max Frankel, the author of the Defamatory Article, described himself in an interview as “a Democrat with a vengeance.”

The case has been filed in NY state court, and as Harder well knows, New York has a very limited anti-SLAPP law, meaning that it is unlikely to apply.

Of course, I find it depressingly amusing that this comes the same month that Harder was in court in California on behalf of Donald Trump supporting broad anti-SLAPP laws in a case in which Harder argued that "a defamation standard that turns typical political rhetoric into actionable defamation would chill expression that is central to the First Amendment and political speech."

The lawsuit is garbage and hopefully the NY Times gets it quickly tossed out, but I guess this means that Harder and Trump's support for anti-SLAPP laws that protect against these kinds of frivolous lawsuits won't extend to New York or to a (necessary) federal anti-SLAPP law.

Filed Under: anti-slapp, charles harder, defamation, donald trump, max frankel, new york, opinion, quid pro quo, russia, slapp suit
Companies: ny times

Pigs Fly As Charles Harder And Donald Trump Support Anti-SLAPP Laws (When They Protect Trump, Of Course)

Defamation

from the say-what-now dept

Thu, Feb 6th 2020 9:32am — Mike Masnick

As you probably recall, Donald Trump has repeatedly talked about "opening up our libel laws" and making it easier to sue people for defamation "and win lots of money." As we pointed out when he first raised this issue, while Trump cannot directly impact libel laws (which are state laws, not federal, and are bounded by the 1st Amendment, which he cannot change), he can have an impact in many other ways -- from appointing judges to blocking any attempt at a federal anti-SLAPP law that would protect people from bogus defamation lawsuits.

So, back in the fall of 2018, we found it mildly amusing to see Trump himself using an anti-SLAPP law to successfully defeat a (highly questionable) defamation lawsuit from Stormy Daniels. Even more surprising was that Trump was represented in this case by lawyer Charles Harder, who has built up quite a reputation for suing media companies on behalf of the rich and powerful. As many people know, he was the lawyer in the case against us at Techdirt, in which he argued against the application of California's anti-SLAPP law to get us out of the lawsuit and to award us legal fees. An old Hollywood Reporter profile of Harder described how he, too, hoped to change the standards for defamation and make it easier to sue:

"I think the actual malice standard is too stringent," says Harder, perhaps previewing how a Donald Trump administration might approach the media and the laws governing it. "If you look at Justice [Byron] White's opinion in a Supreme Court case 20 years after New York Times v. Sullivan, he wrote a dissent and said we all made a mistake, that it has gotten to a point where it has created huge problems for a public figure who is defamed to do anything about it."

That profile also noted that Harder was well aware of the different anti-SLAPP laws in different jurisdictions:

In his offices, Harder keeps charts mapping the differences in libel and privacy laws throughout the country. He also has become a pro on where to strategically file cases. The Hogan suit took place in Florida, where a jury might be friendlier to a local celebrity. The Heard case was in Nevada before it was dropped. Melania's lawsuit is proceeding in Maryland, which some legal experts speculate is because of its plaintiff-friendly rules that won't require her to pay the Daily Mail's legal bill if she loses.

In the case against us, Harder argued that the use of words like "liar" and "fake" constituted defamation. However, as Trump's lawyer defending him from Daniels' claim of defamation, Harder noted:

It does not matter that the President used strident language (“nonexistent,” “con job,” and “fake news”) in expressing his opinion doubting the veracity of Plaintiff’s allegation rather than using more genteel terminology. Rhetorical hyperbole is not actionable as defamation.... Courts throughout the United States have routinely held that terminology similar to that used by the President is constitutionally protected opinion and non-actionable.

[....]

Indeed, since the founding of our republic, politicians have often expressed their opinions by branding their opponents as “liars.” Doing so does not subject every such politician to a defamation claim. President Trump himself has expressed his opinions regarding multiple adversaries, sometimes referring to his opponents by colorful names such as “Lyin’ Ted” and “Crooked Hillary.” A defamation standard that turns typical political rhetoric into actionable defamation would chill expression that is central to the First Amendment and political speech.

And... in that instance, I completely agree with Harder and Trump, even though it would seem to contradict his argument in the case against us. But, hey, I guess zealous defense of your clients doesn't always require consistent arguments.

Along those lines, the case between Daniels and Trump continues, and Harder is now in the position of singing the praises of California and Texas's anti-SLAPP laws, because that's what helped Trump succeed against Daniels.

A key issue that has come up in the Daniels/Trump suit is one that various courts have differed on over the years: whether or not state anti-SLAPP laws can be used in federal courts. The various circuits are split on this issue, with some arguing that anti-SLAPP laws are procedural, and state laws cannot regulate federal rules of civil procedure, while others ague that the law is substantive, and thus can be applied in federal court. What makes things even more tricky is that while the Daniels/Trump suit is taking place in California, the anti-SLAPP law used was the Texas Citizens Participation Act (TCPA). And while the 9th Circuit (which covers California) has said that state anti-SLAPP laws (like California's) are substantive and thus can be used in federal court, just recently the 5th Circuit went the other way, and said that the TCPA is procedural, and thus cannot be applied in federal court. I think this is a bad and problematic ruling, which at the very least shows us the need for a federal anti-SLAPP law.

Either way, this leaves the Daniels case in a weird sort of nowhere land -- and on appeal Harder needs to argue that the TCPA can apply in federal court in California, even if it can't in Texas. And his argument is to point to 9th Circuit precedent regarding California's anti-SLAPP law:

At the hearing (see the video recording here), Harder called Texas' anti-SLAPP statute a "substantive" change (rather than a procedural one), and added it was virtually identical to California's anti-SLAPP statute, which has repeatedly been affirmed by the Ninth Circuit. He then quoted Wardlaw in Makaeff v. Trump University when she wrote, "Through anti-SLAPP laws, the legislatures of Arizona, California, Guam, Hawaii, Nevada, Oregon, and Washington have decided to impose substantive limitations on certain state law actions. Refusing to recognize these limitations in federal court is bad policy. If we ignore how states have limited actions under their own laws, we not only flush away state legislatures’ considered decisions on matters of state law, but we also put the federal courts at risk of being swept away in a rising tide of frivolous state actions that would be filed in our circuit’s federal courts.”

It's pretty incredible to have Harder making that argument, but hey, Charles, welcome to team pro free speech and against frivolous defamation lawsuits. The more, the merrier.

The appeals court panel did point out to Harder that if the case had been brought in Texas federal court, under the recent 5th Circuit ruling, he wouldn't be allowed to use the TCPA, and Harder's response was basically that since the case was filed before that ruling, perhaps the 5th Circuit would have ruled otherwise if it was a different case (or this case) up for review:

"The only reason is, had you brought this case in Texas federal court, you would not have this motion available to you, right?" asked Wardlaw.

"At the time we filed it, the Klocke decision had not come about," answered Harder. "If our case had preceded the other one, perhaps the Fifth Circuit would have been persuaded otherwise. I don't know."

And then, as the Hollywood Reporter notes, Harder defended strong anti-SLAPP laws in federal court, warning that otherwise lawyers might go forum shopping (?!?):

Harder then made the point that without federal court application of anti-SLAPP statutes, plaintiffs would "forum-shop" their suits into such jurisdictions in order to gain advantage. Said Harder, "This court correctly recognized that if the legislature wants to get rid of SLAPP suits, you apply the SLAPP statutes everywhere they can be applied including in federal courts. Klocke wasn't looking at forum shopping. I think it missed an important point."

Remember, this is the same lawyer who keeps charts of different forum rules and has a history of filing his lawsuit strategically -- frequently in places with no or weak anti-SLAPP laws.

Anyway, as I noted when Harder/Trump initially won this ruling, I think it's the right ruling and I'm actually happy to see that Harder and Trump find themselves in a position of supporting free speech and good, effective, anti-SLAPP laws -- though I'm skeptical if they believe it applies beyond situations in which they, themselves, have immediate benefit.

Filed Under: anti-slapp, california, charles harder, defamation, donald trump, federal anti-slapp, forum shopping, jurisdiction, stephanie clifford, stormy daniels, tcpa, texas

23 Comments

Bringing Free Speech Back: Trump Promises To Sue CNN Over Its Biased Coverage Based On Dumbest Legal Theory Ever

Free Speech

from the ken,-is-charles-harder-a-good-lawyer? dept

Tue, Oct 22nd 2019 9:34am — Mike Masnick

By way of disclosure, I will mention that (as you may be aware), Charles Harder was the lawyer who represented Shiva Ayyadurai in his lawsuit against us, and who has a decently long history of both threatening and filing lawsuits against media properties -- some of which have been more successful than others. Harder appears to have used his reputation for killing off Gawker to get ever more prominent clients, on whose behalf he has sent plenty of laughable threat letters trying to silence obviously protected speech, from Roger Ailes to Harvey Weinstein to Donald Trump. I will leave it as an exercise to the reader to determine if you see a pattern in some of Harder's clients and the representation he has provided for them.

Apparently the President still employs Harder. Late last week he sent what has to be one of the most ridiculous threat letters I've seen (and that's saying something) to CNN promising to sue the company for its "biased" coverage of the possible Trump impeachment process. Everything about the letter is pretty crazy, especially from a President whose fans like to pretend he he supports free speech. He does not. And Harder's ridiculous letter makes this clear. The letter doesn't claim defamation (which would be laughable on its own) but a rather... let's say "unique"... interpretation of the Lanham Act's "truth in advertising" aspects to argue that its coverage of the President doesn't match up with its promises to be "fair and balanced."

Your website expressly represents to the public, in writing, that you are “journalists,” “truth seekers,” “united by a mission to inform, engage and empower the world,” and you “stand for excellence in journalism and [your] products.” See https://www.CNN.com/About (emphasis added). Your slogan is “The Most Trusted Name in News”. Your Facebook account claims you are “widely known to be – the most trusted source for news and information.” Your anchor, Don Lemon, stated on June 6, 2019, as a keynote speaker at Financial Times Live Future of News: “We don’t profess to be a liberal network, we’re a news network … we have a commitment to the truth and to facts, which has really been paramount, especially always at CNN.” Mr. Zucker said in an interview with Variety, published on August 2, 2016: “[O]ur air, as opposed to others’, is truly fair and balanced.” (Emphasis added.)

The letter then goes on to cite the Society of Professional Journalists' Code of Ethics, claiming that CNN is violating them. This is silly on multiple levels. First of all, Harder seems to ignore a key part of that code of ethics that explicitly states:

The SPJ Code of Ethics is a statement of abiding principles supported by additional explanations and position papers (at spj.org) that address changing journalistic practices. It is not a set of rules, rather a guide that encourages all who engage in journalism to take responsibility for the information they provide, regardless of medium. The code should be read as a whole; individual principles should not be taken out of context. It is not, nor can it be under the First Amendment, legally enforceable.

Yet, Harder acts as if it's some sort of legally enforceable document that somehow overrides the 1st Amendment. Which is weird.

From there, Harder cites a new video from notorious misrepresenters Project Veritas as proof that CNN is violating these ethical rules that are not law, and which it's not at all clear they're actually violating in the first place. Much of the complaint is whether or not CNN staff is "biased" against the President, and whether or not it lets opinion journalism appear in its "news" coverage.

Of course, this is all particularly hilarious because, as bad as CNN might be on that front, the same would apply doubly so to the President's favorite TV news station, Fox News, whose own motto is famously (if hilariously) "Fair and Balanced" when it is anything but, and took a famously adversarial position to the previous administration. Keep that in mind when you read this next line in Harder's letter:

Never in the history of this country has a President been the subject of such a sustained barrage of unfair, unfounded, unethical and unlawful attacks by so-called “mainstream” news, as the current situation.

It can easily be argued that that isn't even true when compared to the previous administration and Fox News. And, of course, there's a long, long history of journalistic outlets targeting opposing Presidents (including being accused (perhaps exaggeratedly) of being responsible for the assassination of President McKinley). The idea that CNN's coverage of the President is somehow unique in history is hilarious and unsupported by reality.

As for the actual legal claims they're vague, but utter nonsense:

Your actions are in violation of the Lanham Act (15 U.S.C. § 1051 et seq.), among other applicable laws, by constituting misrepresentations to the public, to your advertisers, and others. Accordingly, my clients intend to file legal action against you, to seek compensatory damages, treble damages, punitive damages, injunctive relief, reimbursement of legal costs, and all other available legal and equitable remedies, to the maximum extent permitted by law.

As well known, well respected lawyer Ted Boutrous stated on Twitter, this entire letter is silly:

This is an absolutely ridiculous letter. No serious lawyer would ever think of sending such a frivolous letter making such a baseless threat. https://t.co/omdWCE50fv

— Ted Boutrous (@BoutrousTed) October 18, 2019

CNN's response to the letter was pretty short and succinct:

“This is nothing more than a desperate PR stunt and doesn’t merit a response, CNN said in a statement.

Exactly. While Harder's letter promises a lawsuit on this, it would not be surprising if no such lawsuit materializes, as it's an almost guaranteed loser. As law professor Alexandra Roberts points out, while Harder's Lanham Act claims are not at all clearly stated, he's likely (especially given the context of the rest of the letter) suggesting a "false advertising" claim, but for that to be legit, he would have to show commercial harm to President Trump, which would be... quite something to attempt.

Separately, Roberts makes another important point: since the letter isn't even a standard "cease and desist" threat letter, but rather includes a statement about a planned legal action, CNN (if it so chose) could actually go to court and ask for a declaratory judgment on this matter, effectively forcing Trump/Harder to explain to the court whatever ludicrous legal theory they have, only to almost certainly have it laughed out of court. It looks like CNN won't bother doing so, but that sure would be fascinating to watch.

Filed Under: 1st amendment, bias, charles harder, coverage, donald trump, false advertising, free speech, journalism, lanham act, news
Companies: cnn

Will Donald Trump Support A Federal Anti-SLAPP Law Now That It's Helped Him Win Stormy Daniels' Defamation Suit?

Free Speech

from the fixing-libel-laws dept

Tue, Oct 16th 2018 12:02pm — Mike Masnick

Every few months, it seems, President Trump trots out some nonsense about how our current defamation laws are unfair and he promises to open them up. It keeps happening. And it's not surprising because Trump himself has threatened defamation lawsuits many times, and even occasionally filed an actual defamation lawsuit, such as the one against Tim O'Brien, which Trump lost completely -- though, tellingly he later admitted that he felt like he succeeded in forcing O'Brien to spend money in court:

"I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.'"

Of course it's this kind of thinking that is the reason why we support stronger anti-SLAPP laws and, in particular, a federal anti-SLAPP law to protect people from having to deal with potentially life-ruining defamation lawsuits from those better positioned to handle them. Of course, this is also why we figure that any movement on a federal anti-SLAPP law is dead in the water while Trump is still President. Given his comments on moving libel laws in the other direction, it seems unlikely he'd ever sign such a bill.

But... Trump just won a defamation lawsuit filed by Stormy Daniels, and it was because of a strong anti-SLAPP law in Texas, that might now allow him to go after legal fees as well. Of course, there have been moments when Trump has recognized that "opening up our libel laws" might come back to bite him. As he said in a NY Times interview, when asked about opening up libel laws:

Actually, somebody said to me on that, they said, ‘You know, it’s a great idea, softening up those laws, but you may get sued a lot more.’ I said, ‘You know, you’re right, I never thought about that.’ I said, ‘You know, I have to start thinking about that.’

And now that Trump has successfully used an anti-SLAPP law to get out of a lawsuit, perhaps he'll be a bit more open to the idea of anti-SLAPP laws as well.

This particular lawsuit, brought by Stormy Daniels, represented by Michael Avenatti, was always an incredibly stupid lawsuit that Trump was obviously going to win. There are a bunch of legal disputes and arguments among these two, but just to clarify, back when Daniels was on 60 Minutes, she claimed that she had agreed to tell her story of her affair with Trump back in 2011, but was allegedly threatened in a Las Vegas parking lot:

Then in 2011, after she had agreed to tell her story to In Touch magazine for $15,000, Daniels said she was threatened by a man in a Las Vegas parking lot who warned her to "Leave Trump alone. Forget the story."

Sometime after this, Stormy Daniels had a sketch artist sketch the man she said approached her in Las Vegas. Some Trump supporters noted what they believed to be an uncanny similarity between the eventual sketch and Daniels' ex-husband, and tweeted this. Trump then retweeted one such tweet along with the following text: "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!"

And it's that tweet that Daniels/Avenatti sued over. Again, this was clearly going nowhere. That tweet is not at all defamatory under the 1st Amendment. In his defense, Trump, who was represented by Charles Harder*, filed an anti-SLAPP motion, arguing that Trump was protected under Texas' anti-SLAPP law, that the case should be dismissed, and that Trump should be awarded attorneys' fees. And the court easily agreed.

* Big disclaimer here: Harder is at this moment representing a plaintiff in a still ongoing lawsuit against me personally (as well as Techdirt), claiming defamation, and in which we made a motion using California's anti-SLAPP law. In the Trump case, however, it is Harder/Trump making use of anti-SLAPP laws (in this case, Texas') and I agree with Harder and Trump that this claim was a SLAPP suit and am glad the case was dismissed.

In their motion for the anti-SLAPP dismissal, Harder argued that Trump's tweet was clearly protected by the First Amendment, and thus the anti-SLAPP law should lead to the dismissal of the case. Frankly, I think Harder makes a very strong argument here:

Here, the Comment nowhere implies that President Trump has any special information or insight as to what did or did not happen in a Las Vegas parking lot in 2011. Rather, he gives an opinion that he does not find Plaintiff’s account credible. This is constitutionally-protected and therefore nonactionable, especially because the Comment arose from a public dispute between a major politician and one of his adversaries.

It does not matter that the President used strident language (“nonexistent,” “con job,” and “fake news”) in expressing his opinion doubting the veracity of Plaintiff’s allegation rather than using more genteel terminology. Rhetorical hyperbole is not actionable as defamation. Neely v. Wilson, 418 S.W.3d 52, 83-84 (Tex. 2013). Courts throughout the United States have routinely held that terminology similar to that used by the President is constitutionally protected opinion and non-actionable. See e.g., McCabe v. Rattiner, 814 F.2d 839, 843 (1st Cir. 1987) (“scam” not defamatory); Oilman v. Evans, 750 F.2d 970, 987 (D.C. Cir. 1984) (en banc) (political columnist labeling a political figure a “Marxist” not defamatory); Letter Carriers v. Austin, 418 U.S. 264, 282-83 (1974) (use of term “scab” in labor dispute not defamatory); Buckley v. Littell, 539 F.2d 882, 893-94 (2d Cir. 1976) (labeling political writer a “fascist” not defamatory); Greene v. State, 21 So.3d 348, 352 (La. App. 2009) (labeling state employee “pathological liar” not actionable).

Any finding by the Court that the Comment has a defamatory meaning and is not protected opinion could have a chilling effect on political debate throughout the United States forever. Politicians frequently express their opinions about their political adversaries, often in strident and blunt terms. In 1964, for instance, Lyndon Johnson ran an advertisement that implied his opponent, Barry Goldwater, would start a nuclear war. John Kennedy campaigned against incumbent Vice President Richard Nixon in 1960 based on claims of a “missile gap” with the Soviet Union that turned out to be grossly misleading. Bill Clinton allegedly misstated the budget deficit in his 1992 campaign against George H.W. Bush. None of these statements were anything more than opinions, and none could or should form the basis of a defamation suit.

Indeed, since the founding of our republic, politicians have often expressed their opinions by branding their opponents as “liars.” Doing so does not subject every such politician to a defamation claim. President Trump himself has expressed his opinions regarding multiple adversaries, sometimes referring to his opponents by colorful names such as “Lyin’ Ted” and “Crooked Hillary.” A defamation standard that turns typical political rhetoric into actionable defamation would chill expression that is central to the First Amendment and political speech.

It's a strong argument. And the judge easily agreed, noting that the tweet was clearly rhetorical hyperbole:

The Court agrees with Mr. Trump's argument because the tweet in question constitutes "rhetorical hyperbole" normally associated with politics and public discourse in the United States. The First Amendment protects this type of rhetorical statement.

"It is well settled that 'the meaning of a publication, and thus whether it is false and defamatory, depends on a reasonable person's perception of the entirety of a publication and not merely on individual statements." See Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002) (quoting Turner v. KTROK Television, Inc., 38 S.W. 3d 103, 115 (Tex. 2000)). To assess whether a statement is "rhetorical hyperbole," this Court looks to the statement "as a whole in light of the surrounding circumstances and based upon how a person of ordinary intelligence would perceive it."

Furthermore:

The instant case is similar to Rehak in that Mr. Trump, as President, made a hyperbolic statement against a person who has sought to publicly present herself as a political adversary to him. In filings before this Court, Ms. Clifford has challenged the legitimacy of Mr. Trump's victory in the 2016 Presidential election. Mr. Trump's tweet served as a public rejoinder to allegations made by Plaintiff. If this Court were to prevent Mr. Trump from engaging in this type of "rhetorical hyperbole" against a political adversary, it would significantly hamper the office of the President. Any strongly-worded response by a president to another politician or public figure could constitute an action for defamation. This would deprive this country of the "discourse" common to the political process. In short, should Plaintiff publicly voice her opinions about Mr. Trump, Mr. Trump is entitled to publicly voice non-actionable opinions about Plaintiff. To allow Plaintiff to proceed with her defamation action would, in effect, permit Plaintiff to make public allegations against the President without giving him the opportunity to respond. Such a holding would violate the First Amendment.

And thus, in the end, Trump wins his anti-SLAPP ruling and can now move to seek legal fees if he so chooses. Of course, Avenatti -- in a now deleted tweet -- called the ruling "limited":

It is not, in any way, limited. It is the proper application of Texas' anti-SLAPP law to a bogus defamation claim which Avenatti himself admits is part of an effort to cost Trump more money through the other lawsuits Avenatti has going against Trump. Soon afterwards Avenatti posted that he had already appealed the ruling to the 9th Circuit appeals court:

Here is the Notice of Appeal we just filed with the Ninth Circuit relating to the defamation claim against Trump. His record before the Ninth Circuit has been anything but good. #Basta pic.twitter.com/SK8QdycoUW

— Michael Avenatti (@MichaelAvenatti) October 16, 2018

He and Daniels will almost certainly lose this appeal and Trump will almost certainly win. But the real question is whether or not this helps Trump recognize the value of strong anti-SLAPP laws. It seems like now would be a good time for Congress to finally move on the federal anti-SLAPP law, while reminding Trump that it may have just saved him a bunch of money...

Filed Under: 1st amendment, anti-slapp, charles harder, donald trump, first amendment, free speech, michael avenatti, stormy daniels, texas

Donald Trump Hires Charles Harder To Threaten Steve Bannon With A Lawsuit, Block Publication Of New Book

Free Speech

from the 2018-kicks-off-with-a-bang dept

Thu, Jan 4th 2018 9:32am — Mike Masnick

If you follow political news at all, you probably saw the story yesterday concerning excerpts from Michael Wolff's upcoming book Fire and Fury, in which former Trump "Chief Strategist" Steve Bannon appeared to completely throw Trump under the bus, allegedly saying a bunch of pretty negative things about Trump and his family -- including the headline-making exaggerated opinion that Trump Jr., Kushner and Manafort meeting with Russians was "treasonous." Trump quickly responded in kind with one of the most incredible statements you'll see (and that's saying something, given the speaker) which starts out thusly:

Steve Bannon has nothing to do with me or my Presidency. When he was fired, he not only lost his job, he lost his mind. Steve was a staffer who worked for me after I had already won the nomination by defeating seventeen candidates, often described as the most talented field ever assembled in the Republican party.

It goes on. Normally, none of this would be Techdirt-worthy, but late last night, a new twist was added. According to ABC News, President Donald Trump has hired lawyer Charles Harder to threaten Steve Bannon with a lawsuit for defamation, breach of confidentiality and non-disparagement agreements. And, then, this morning, more news broke of another letter, written by Harder, sent to Wolff and the book's publisher, demanding that the book not be published at all -- and that they send Harder a complete copy of the book.

So, let's lay our cards on the table here: the lawyer, Charles Harder, is still the lawyer representing a plaintiff in an ongoing lawsuit against us -- and we've written about many of his other lawsuits, including representing the First Lady, Melania Trump. Not much more needs to be said about him. We're also not huge fans of Steve Bannon. Or Donald Trump. Or, for that matter, of Michael Wolff, who has a long history of... not being very good at his job. So, if you want to accuse us of bias in this post, consider it spread all around.

ABC did not publish a copy of the actual letter Harder sent Bannon, but did extensively quote it, so we can piece together most of the letter. Here are the various excerpts:

"This law firm represents President Donald J. Trump and Donald J. Trump for President, Inc. On behalf of our clients, legal notice was issued today to Stephen K. Bannon, that his actions of communicating with author Michael Wolff regarding an upcoming book give rise to numerous legal claims including defamation by libel and slander, and breach of his written confidentiality and non-disparagement agreement with our clients. Legal action is imminent."

"You [Bannon] have breached the Agreement by, among other things, communicating with author Michael Wolff about Mr. Trump, his family members, and the Company, disclosing Confidential Information to Mr. Wolff, and making disparaging statements and in some cases outright defamatory statements to Mr. Wolff about Mr. Trump, his family members, and the Company, knowing that they would be included in Mr. Wolff’s book and publicity surrounding the marketing and sale of his book."

"Remedies for your breach of the agreement include but are not limited to monetary damages, injunctive relief and all other remedies available at law and equity...."

The letter then cites parts of Paragraph 8 of the Agreement: "Consent to Injunction. A breach of any of your promises or agreements under this agreement will cause the Company, Mr. Trump and each other Trump Person irreparable harm. Accordingly, to the extent permitted by law, and without waiving any other rights or remedies against you at law or in equity, you hereby consent to the entry of any order, without prior notice to you, temporarily or permanently enjoining you from violating any of the terms, covenants, agreements or provisions of this agreement on your part to be performed or observed. Such consent is intended to apply to an injunction of any breach or threatened breach."

The "Damages and Other Remedies" part of the Agreement is then cited, "Notwithstanding anything to the contrary, each Trump Person will be entitled to all remedies available at law and equity, including but not limited to monetary damages, in the event of your breach of this agreement. Nothing contained in this agreement will constitute a waiver of any Trump Person’s remedies at law or in equity, all of which are expressly reserved."

"Further, as the prevailing party in any litigation arising out of your breach of the Agreement, Mr. Trump and the Company will be entitled to 'an award of reasonable legal fees and costs."

Phew. Donald Trump, of course, has a long history of threatening defamation lawsuits, not all of which actually come to fruition. He has actually sued for defamation a few times -- but not very successfully. Also, I'm not sure Trump or his supporters should be all that excited about the idea of a Trump deposition either. In the past, those haven't always gone well (though I'm sure the media would salivate over such a thing).

Still, having a sitting President sue a former top advisor and former campaign CEO for defamation would be... unusual. Without seeing everything that Wolff has written, nor seeing everything that Bannon has said, it's difficult to know if anything actually reaches the level of defamation -- nor will we speculate one way or the other. Bannon, of course, may not be the most trustworthy narrator -- and there are already reports that Bannon planned to use the book "to settle scores" against people he disagreed with -- such as Jared Kushner. But portraying people negatively, by itself, is not defamation.

So far, most of the comments revealed certainly appear to be statements of opinion not fact. But the full book has not yet been released. We will note, of course, that a pretty long history of US case law (and the good old First Amendment) makes it quite difficult to successfully claim defamation of a public figure -- and there basically is no more public figure right now than Donald Trump. Trump would have to show that Bannon said or wrote false things about Trump, knowing that they were false, or with reckless disregard for the truth. That's not an easy standard to meet but certainly not impossible. I would be very surprised if Bannon went that far, but it's not impossible. And, at least in the excerpted portions in the letter, there does not appear to be an explanation of which statements are actually defamatory and how (which is generally what one does if you're claiming defamation and have an actual basis for such a claim).

Of course, there may be other concerns as well. Some are already raising questions about Wolff's reporting in the book, which could create an interesting wrinkle should a case actually show up:

Becoming increasingly clear to me that Wolff likely sourced most of the juiciest/most scandalous stories from Bannon's various bloviating interviews, and simply took his word for how he characterized the acts/beliefs of others. Very problematic. https://t.co/0d1BLQ3UqB

— Jeff B (@EsotericCD) January 3, 2018

And, as noted, Wolff has been accused of questionable journalistic techniques in the past, which he denies, including claims that he "invented or changed quotes." So it's hardly surprising that a bunch of articles are popping up digging into Wolff's history as well. That said, Axios is also reporting this morning that Wolff recorded his interviews, so if officials want to claim that he made up their quotes, that may backfire badly.

As for the breach of confidentiality and non-disparagement clauses, those are other issues entirely. It's certainly been reported in the past that the Trump campaign made staffers sign confidentiality agreements which appeared to be quite broad. Whether or not such an agreement is actually enforceable would certainly be an interesting legal question, and one that would be watched quite closely in the courts -- especially seeing as there has been a lot of discussion lately about how non-disclosure agreements were used to silence the victims of sexual assault, and how perhaps such agreements should be made illegal, but nothing's really happened on that front so far.

It does seem worth pointing out that there's a built-in contradiction if Bannon's statements are both defamatory and a confidentiality agreement violation. Because if it's violating confidentiality, well, then that's an admission that it's true and not made up. It's possible that Harder is claiming some statements are defamatory while others breach confidentiality --but it'll be fun determining which ones are which.

So, does Trump (and Harder) have a legitimate case against Bannon? Without seeing the details it's difficult to say for certain. However, either way, I think we can express our strong opinion that merely having the President of the United States feel the need to bring in a lawyer to threaten a lawsuit against his former top strategist over some negative things said in a book... is a really bad look. It's no secret that our President appears to have an extremely thin skin when it comes to criticism. Threatening lawsuits certainly doesn't help change that impression.

As for getting Wolff and publisher Henry Holt & Co. to stop publishing the book entirely? That seems extraordinarily unlikely to happen. The book has already been distributed to bookstores, and getting a judge to order the publication to stop would be clear prior restraint and an absolute violation of the First Amendment. And, for Wolff and the publisher, you have to imagine that they're loving the threat for all the free advertising it's providing. There's a term for that, I think. On top of that, I'd argue that the President of the US demanding an entire book not be published is even more ridiculous than threatening Bannon with a defamation lawsuit. Banning books is most certainly not something the President should be doing and is an affront to the First Amendment. But, of course, Donald Trump has a long history of attacking the First Amendment, so perhaps it's not a surprise.

Many may argue that the threats alone may be the point of all of this. Threatening (or even suing) Bannon for saying mean things after leaving the White House may be intended more as a message to other Trump White House staffers (past, present and future) to shut the fuck up, rather than talk to the press. Historically, trying to enforce a code of silence in this manner doesn't tend to work well. It is likely to only lead to more leaking and more talking to the press -- though perhaps with less willingness to put names on the quotes. And, on top of that, threatening the publisher and author seem only likely to interest more authors in writing about the Trump White House in hopes of a similar "free advertising" blitz from the President and his lawyers.

Filed Under: charles harder, confidentiality agreement, defamation, donald trump, first amendment, free speech, michael wolff, non-disclosure agreement, steve bannon
Companies: henry holt

64 Comments

The 'Gawker Effect' Is Chilling Investigative Reporting Across The US

Free Speech

from the this-is-a-problem dept

Tue, Oct 17th 2017 9:31am — Mike Masnick

When the jury verdict against Gawker came down a year and a half ago, we warned of how problematic it was. We pointed out that it was a big deal even if you absolutely hated Gawker and wanted to see them destroyed. Because, as we noted, the playbook used against Gawker could be used against lots of other publications.

And it's clearly impacting a number of others as well. A couple months ago, we wrote about how the "Gawker Effect" had made it very difficult for a huge investigative piece on R Kelly "holding women against their will" by Jim DeRogatis (a music reporter who has broken a number of R Kelly related stories over the years) to find a home to get published. Lots of publishers wouldn't touch it, not because the reporting wasn't solid, but because they didn't want to face the possibility of libel lawsuits, no matter how silly.

This is happening more and more often these days, including over important stories. Over at the Columbia Journalism Review, Kim Masters has a thoughtful, but depressing, article about how this "Gawker Effect" nearly killed another key story about sexual harassment in Hollywood -- involving Amazon exec Roy Price (who runs Amazon's Hollywood efforts) allegedly sexually harassing Isa Hackett, a producer on the Amazon hit show "The Man in the High Castle." The article was eventually published at The Information (behind a paywall). Last month, there was an article at Recode speculating that other publications passed on the story because Price, like Hulk Hogan (and like Harvey Weinstein and like Shiva Ayyadurai, the plaintiff in a lawsuit against us), employed lawyer Charles Harder. In the Recode piece, The Information's CEO, Jessica Lessin is quoted as saying that other publications passed because of threats from lawyers:

Lessin, referencing the Masters story, wrote that “we recently published a version of a story that three other publications passed on after very high-priced lawyers promised to sue them."

The Recode piece also quotes people from other publications who argued that there were other reasons for passing -- including that the earlier versions of Masters' story didn't have enough on-the-record sources. For what it's worth, one of the publications that passed -- the Hollywood Reporter -- recently made new headlines in this story by getting an interview with Isa Hackett, in which she revealed more details about Price's behavior towards her.

In the CJR piece, Masters shares more of the details of what happened behind the scenes, and how pressure was applied, via legal threats, to try to kill the story. It's at least marginally troubling that she notes it wasn't just Charles Harder who was making the threats, but also well-known lawyer Lisa Bloom. Bloom was, somewhat famously, also part of Harvey Weinstein's "legal team" which struck many people as odd, since her reputation was for representing the victims of sexual harassment and assault, not the other side. A few days after the Weinstein stories came out, Bloom said she was no longer working for Weinstein (also, recently, Harder claimed he has also stopped working for Weinstein despite earliler promising a lawsuit). She told the Hollywood Reporter, she worked with him to "change the way these stories go." And, more specifically to avoid the pattern of "when the story comes out, attack the accuser, deny, deny, deny, and fight like hell" because, as Bloom told THR: "I know how damaging that is to them, how hurtful, how scary. It’s emotionally devastating." Over the weekend, she told Buzzfeed something similar:

“All I can say is, from my perspective, I thought, ‘Here is my chance to get to the root of the problem from the inside. I am usually on the outside throwing stones. Here is my chance to be in the inside and to get a guy to handle this thing in a different way.’ I thought that would be a positive thing, but clearly it did not go over at all.”

But Masters notes that Bloom and Harder together threatened the reporting she did on Price:

People in Hollywood and the media world were surprised my byline ended up in The Information, given that I worked at The Hollywood Reporter. (My editor there, Matthew Belloni, said in a Recode article about my difficulties getting the story published that “any suggestion that a story on this topic didn’t run because of outside pressure would be false.”) THR did allow me to shop the story elsewhere, but it came with a guaranteed threat of litigation from Price’s attorneys. Over the weeks that would follow, as I began searching for a home for my scoop, Harder and Bloom convinced every publication that considered my story that they weren’t just threatening legal action but would indeed sue.

Perhaps that threat was so convincing because Harder had handled Hogan’s devastating suit against Gawker with backing from billionaire Peter Thiel. In her zeal to protect her client—who has yet to address any of the allegations in my piece publicly—Bloom claimed that I had turned on Price after he rebuffed my demand to have Amazon underwrite The Business, the public-radio show that I host on KCRW. I can’t guess who concocted that allegation, but I assume the idea was to establish a potential argument that I had behaved unethically and had a personal grudge against him and therefore didn’t care what the facts were. (Since Price is a public figure, his only hope of prevailing in court would be to argue that I published information I knew to be false or acted in reckless disregard of whether it was false.)

When I first read the claim in an email from Bloom, I was angry, but I also laughed because it was ridiculous. I’ve never discussed underwriting with anyone, even internally at KCRW. I don’t know the first thing about it. I’m told Bloom insisted she had proof, though of course none was produced. My editor at THR told her that the story was false, but she repeated it to other publications nonetheless. (Bloom on Thursday said she no longer is working with Price.)

Masters admits that the earlier work didn't yet have the full on-the-record statement from Hackett, which was necessary to make the piece publishable, but does note how much the legal hounding from Bloom and Harder made it that much more difficult to get a publication to go with the piece.

By the time I was done, I had talks with more than six publications and went through legal review at three. The anxiety is always high when there’s a threat of a lawsuit around a story, but this time, it seemed off the charts. At one point, an attorney reviewing the piece only sputtered when I asked her to explain what, exactly, was legally problematic with portions of the story that she wanted to delete. She literally could not construct a sentence to explain her reasoning.

There's a lot more in Masters' piece that is worth reading and that highlights just how damaging the Gawker Effect has become. Again, even if you absolutely hated Gawker and cheered its demise, you should be concerned with what it has wrought. Masters hopes that with the Weinstein story getting so much attention it will help "change the environment" and encourage more people to come forward, and to embolden more publishers to publish these kinds of investigative reports.

However, there's still a missing piece here. Masters is right that these legal threats are a problem, and hopefully the attention brought about from exposing sexual harassers will embolden more publishers to publish these articles, even in the face of coordinated legal threats -- but what we still really need are stronger anti-SLAPP laws in various states (some of which still have none, and many of which have very weak ones). Or, even better, a comprehensive federal anti-SLAPP law. Such a law would allow publications to have more confidence in publishing such exposes of bad behavior by the rich and powerful, since they could push back against bogus legal threats by noting that filing a lawsuit probably won't get very far, and almost certainly would force the plaintiff to pay legal fees. We've been calling for such a federal anti-SLAPP law for nearly a decade, and I hope we're not still calling for one a decade from now. Masters' story is yet more evidence that Congress needs to act, now.

Filed Under: anti-slapp, charles harder, defamation, gawker effect, harvey weinstein, kim masters, lisa bloom, litigation, roy price, sexual harassment, slapp, threats
Companies: amazon, gawker

66 Comments

Harvey Weinstein Tries Every Possible Response To Explosive NY Times Story

Legal Issues

from the wanna-try-that-again,-harvey dept

Tue, Oct 10th 2017 10:43am — Mike Masnick

Last week, the Hollywood Reporter broke the story that famed Hollywood movie mogul Harvey Weinstein (formerly of Miramax and more recently of the Weinstein Company -- from which he was fired over the weekend, despite practically begging for his friends to support him) had seriously lawyered up, hiring three high profile lawyers: David Boies, Lisa Bloom and Charles Harder to deal with two apparent stories that were in the works -- one from the NY Times and another from the New Yorker (two publications not known for backing down from threats) -- about some fairly horrible alleged behavior by Weinstein towards young female actresses, employees and more.

A day later, the NY Times published its article about Harvey Weinstein and, damn, it's quite an article. It details multiple cases of alleged sexual harassment by Weinstein against both employees and hopeful actresses -- and includes claims of Weinstein having to pay off some of those individuals. The article was not based on a single source, but many sources, including one actress (Ashley Judd) willing to put her name behind the accusations (and just as we were completing this post, the New Yorker published its piece which appears to be more detailed and more damning, with more names and even more horrifying stories about Weinstein). And with the NY Times' publication, much of the "legal team" leaped into action. Of course, if you're not familiar with the three lawyers named above, it may help to do a quick review, before we dig in on the myriad (often contradictory) responses we've now seen from Weinstein and his legal team over the past few days.

Boies, of course, shows up everywhere these days, but often not for good reasons. You may recall him representing SCO in its quixotic attack on Linux. Or representing Oracle against Google in claiming that APIs can be copyrightable. Or representing Theranos, the now disgraced biotech firm that exaggerated what it could do. Or representing Sony Pictures when its emails were all leaked, to the point of sending a ridiculous threat letter to us for daring to report on those emails. Lisa Bloom's only appearance here was when she was on the right side of the silly James Woods defamation case against an anonymous tweeter. Many found Bloom's appearance as part of the team quite odd, since she's built her reputation on representing victims of sexual harassment. She later claimed she was just advising Weinstein, rather than acting as his lawyer (hmm....) and then, over the weekend, she resigned from whatever it was that she was doing. However, the NY Times has a quite incredible article suggesting her initial response to the accusations was to effectively go after the women, by posting "photos of several of the accusers in very friendly poses with Harvey after his alleged misconduct." Ick.

And, Charles Harder? What is there that needs to be said about Charles Harder? Oh, right, that he's currently leading the legal team that's suing us in a defamation suit that we've won (though he has since appealed).

Within hours of the article being published, Harder announced that Weinstein would be suing the NY Times for defamation.

"The New York Times published today a story that is saturated with false and defamatory statements about Harvey Weinstein," he writes in an email to The Hollywood Reporter. "It relies on mostly hearsay accounts and a faulty report, apparently stolen from an employee personnel file, which has been debunked by nine different eyewitnesses. We sent the Times the facts and evidence, but they ignored it and rushed to publish. We are preparing the lawsuit now. All proceeds will be donated to women’s organizations."

But here's the thing: Weinstein himself seems to be admitting that many of the accusations are accurate. He's quoted apologizing for his behavior in the initial NY Times article:

In a statement to The Times on Thursday afternoon, Mr. Weinstein said: “I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it. Though I’m trying to do better, I know I have a long way to go.”

He added that he was working with therapists and planning to take a leave of absence to “deal with this issue head on.”

That seems like an admission. The full statement is even more bizarre:

I came of age in the 60’s and 70’s, when all the rules about behavior and workplaces were different. That was the culture then.

I have since learned it’s not an excuse, in the office - or out of it. To anyone. I realized some time ago that I needed to be a better person and my interactions with the people I work with have changed.

I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it.

Though I’m trying to do better, I know I have a long way to go. That is my commitment. My journey now will be to learn about myself and conquer my demons. Over the last year I've asked Lisa Bloom to tutor me and she's put together a team of people. I've brought on therapists and I plan to take a leave of absence from my company and to deal with this issue head on. I so respect all women and regret what happened. I hope that my actions will speak louder than words and that one day we will all be able to earn their trust and sit down together with Lisa to learn more. Jay Z wrote in 4:44 "I'm not the man I thought I was and I better be that man for my children." The same is true for me. I want a second chance in the community but I know I've got work to do to earn it. I have goals that are now priorities. Trust me, this isn't an overnight process. I've been trying to do this for 10 years and this is a wake-up call. I cannot be more remorseful about the people I hurt and I plan to do right by all of them.

I am going to need a place to channel that anger so I've decided that I'm going to give the NRA my full attention. I hope Wayne LaPierre will enjoy his retirement party. I'm going to do it at the same place I had my Bar Mitzvah. I'm making a movie about our President, perhaps we can make it a joint retirement party. One year ago, I began organizing a $5 million foundation to give scholarships to women directors at USC. While this might seem coincidental, it has been in the works for a year. It will be named after my mom and I won't disappoint her.

That whole statement is... weird. Others have covered the many problems with it, but it seems like a pretty clear admission. Given that, it's pretty ridiculous to then claim you're suing the NY Times. Under what theory? Well, according to Weinstein, because it didn't give him enough time to respond:

“I mean every word of that apology,” he told TheWrap. “The reason I am suing the New York Times is they didn’t give me enough time to respond.”

Um. What? First of all, he gave an entire statement to the NY Times. So he clearly had time to respond. Second, there's no legal requirement that a news publication needs to give you "enough time to respond," let alone any time to respond. That's not how the press works.

In another interview, he told the NY Post that he's suing because the NY Times wasn't honest with him:

Weinstein said, “What I am saying is that I bear responsibility for my actions, but the reason I am suing is because of the Times’ inability to be honest with me, and their reckless reporting. They told me lies. They made assumptions.

“The Times had a deal with us that they would tell us about the people they had on the record in the story, so we could respond appropriately, but they didn’t live up to the bargain.

“The Times editors were so fearful they were going to be scooped by New York Magazine and they would lose the story, that they went ahead and posted the story filled with reckless reporting, and without checking all they had with me and my team.

Once again, Weinstein seems to be confused about how journalism works -- and what legal requirements there are. Even as rich and powerful as Harvey Weinstein is, there is no legal requirement to give him as much time as he wants to respond. Indeed, his lawyer Bloom admits they had two days:

“Two days ago, after begging, they gave us a couple dozen allegations that spanned 30 years and a dozen countries. They said we have until 1 pm today. We said ‘Why?’ They never said.”

Again, giving two days actually seems kind of generous.

The whole thing seems like Weinstein is trying out any and all possible responses at once. Normally you select one: you deny and sue or you apologize or you try to make a quip and laugh off the accusation. Harvey seems to be doing all of this at once.

He even tried denial (and a quip) before the admission and the threat:

In a brief interview on Wednesday, Weinstein declined to comment on the charges.

"I've not been aware of this," he said. "I don't know what you're talking about, honestly."

[....]

Weinstein later issued a statement through a spokesperson, as did Bloom. “The story sounds so good I want to buy the movie rights,” said Weinstein.

Of course, as the NY Times has pointed out, at no point has Weinstein said what is factually untrue in its reporting. And if you're suing for defamation, that's kind of the first thing you're supposed to do. Meanwhile, it appears that other stories are starting to come out (and they keep coming) -- including some fairly damning claims about attempts to cover up previous investigations. And, perhaps most troubling, a claim that the NY Times had this story a dozen years ago and was pressured into killing it. Of course, perhaps that's the real reason behind the threat of the lawsuit -- to try to scare off others from coming forward. All of the links in this paragraph suggest if that's the theory, well, it's not working. It's also not clear that a lawsuit would be wise. Beyond the failure to give an actual legal reason for the lawsuit so far, as many people have pointed out, it's unclear that Harvey would want to go through the discovery process in such a lawsuit should it get that far.

And, in the meantime, the NY Times has said that Weinstein "should publicly waive the NDAs in the women's agreements so they can tell their stories." If he fails to do so, that says a lot right there.

Still, in the end, it appears that Weinstein's strategy here seems to be... to do all of the following, even if some parts contradict other parts:

Deny with a quip ("I don't know what you're talking about, honestly." "I want to buy the movie rights.")
Offer a weak excuse that's not even a real excuse ("I came of age in the 60's and 70's")
Apologize ("the way I’ve behaved with colleagues in the past has caused a lot of pain," "I cannot be more remorseful about the people I hurt and I plan to do right by all of them.")
Threaten to sue ("the reason I am suing is because of the Times’ inability to be honest with me, and their reckless reporting")
Claim the story is not accurate ("a story that is saturated with false and defamatory statements about Harvey Weinstein")
Say the real problem was that the paper didn't live up to its word ("The Times had a deal with us")
Also claim that the problem was not enough time to respond (despite responding) ("The reason I am suing the New York Times is they didn’t give me enough time to respond.")
Deflect from being accused of using your power to bed powerless women by... talking about the NRA?!? ("I'm going to give the NRA my full attention.")
Insist that you've seen the light and are changing ("I want a second chance in the community but I know I've got work to do to earn it. I have goals that are now priorities. Trust me, this isn't an overnight process. I've been trying to do this for 10 years and this is a wake-up call.")
Talk about how you've thrown money at womens' issues, as if that makes this okay ("I began organizing a $5 million foundation to give scholarships to women directors at USC.")

None of these seem particularly genuine at all -- which perhaps explains the contradictory nature of many of them. Instead, it looks an awful lot like how people who are caught doing something bad act when they can't come to terms with what they've done, and will thrash about wildly, trying on every possible response, hoping one of them gets them out of the situation. Who knows if an actual lawsuit will be filed, but of all the possible responses above, that one seems the least likely to end well.

Filed Under: assault, charles harder, david boies, defamation, denial, harassment, harvey weinstein, lisa bloom, threats
Companies: miramax, ny times, weinstein company

149 Comments

Charles Harder Loses Again: You Can't Just File Defamation Lawsuits In A Random State Because You Like Its Statute Of Limitations

Defamation

from the sorry-charles dept

Thu, Sep 14th 2017 9:45am — Mike Masnick

As you may know, Charles Harder is the lawyer behind the lawsuit Shiva Ayyadurai filed against us, so feel free to view everything we say here through that prism. Last week, of course, the judge in our case dismissed the case against us, noting that everything we said was clearly protected by the First Amendment. But that wasn't Harder's only loss of the week. Eriq Gardner points out that he also lost a case he filed against The Deal.

That case had been filed a couple months before our lawsuit, in federal court in New Hampshire. It was filed on behalf of Scottsdale Capital Advisors, a company based in Arizona, and one of its execs, the Nevada-based John Hurry, against the Delaware-registered and New York-based "The Deal" and one of its reporters, the California-based William Meagher. Now, you may wonder why this lawsuit was filed in New Hampshire, seeing as none of the states above include "New Hampshire." And, indeed, the court was wondering that too, because it dismissed the case over this bit of weird venue shopping:

Scottsdale has failed to establish that defendants have the minimum contacts with New Hampshire required for this court to exercise personal jurisdiction over them in this action consistent with the Fourteenth Amendment’s due process clause. Specifically, the plaintiffs have not demonstrated that their claims are related to the defendants’ forum-based activities or that the defendants purposefully contacted New Hampshire such that they could expect to answer for their actions here.

So, why file in New Hampshire? Here's a hint:

Statute of limitations for defamation lawsuits in New York: One Year
Statute of limitations for defamation lawsuits in Delaware: Two Years
Statute of limitations for defamation lawsuits in California: One Year
Statute of limitations for defamation lawsuits in Arizona: One Year
Statute of limitations for defamation lawsuits in Nevada: Two Years
Statute of limitations for defamation lawsuits in New Hampshire: Three Years

Which one of those is not like the others?

The articles at issue in the lawsuit were published on December 6, 2013, March 20, 2014 and April 16, 2014. The lawsuit was filed on November 18, 2016. In other words, the lawsuit was filed over two years after the publication of the articles, and thus any state with a one-year or two-year statute of limitations -- including all of the states connected to the various parties -- would not have worked. New Hampshire, however, has that lovely three year statute of limitations.

The ruling then details the rather extraordinary effort that Scottsdale's lawyers put into trying to argue that New Hampshire is the right place to hear a case when none of the parties is actually in New Hampshire. In short, the argument appears to be that Dartmouth, a college based in New Hampshire, has a subscription to The Deal, and therefore it's published in New Hampshire. And also, The Deal tried to get Dartmouth to renew its subscription, and thus it "conducted business" in New Hampshire. The court is... not impressed for a variety of reasons.

At the time it published Meagher’s articles, and in the time since, The Deal has had only one subscriber in New Hampshire -- Dartmouth College. According to The Deal’s records, no user accessed these three articles through the Dartmouth subscription. Nor did either of the two users of the Dartmouth subscription who had signed up to receive “The DealFlow Report” at the time the articles were published open the attachments containing links to the March 25 or April 22 articles; and no evidence suggests either opened the attachment containing a link to the December 10 article. Indeed, according to data collected through Google Analytics, not a single user who read these articles through The Deal’s online portal was located in New Hampshire.

Because no evidence suggests that anyone in New Hampshire -- Dartmouth-affiliated or otherwise -- viewed the three allegedly-defamatory articles, the plaintiffs focus on other contacts between The Deal and Dartmouth. For example, The Deal solicited Dartmouth’s subscription, and renewals thereof, through emails and telephone calls specifically directed at Dartmouth. Furthermore, during the time period between January 1, 2013 and June 2017, 81 individuals were registered to use The Deal’s online portal under Dartmouth’s subscription. Approximately 30 to 40 students each year were permitted to access The Deal’s online portal via IP authentication (that is, without entering a log-in name or password). The Deal registered a total of 7,232 “sessions” by Dartmouth users visiting its online portal during this time period. The Deal also communicated directly with between 32 and 48 individuals at Dartmouth by email during this time, including regular circulation of “The DealFlow Report” to the two Dartmouth-affiliated individuals who had signed up for it.

But, the court notes that's not nearly enough to make New Hampshire the proper venue:

First, the circulation of the allegedly-defamatory articles in New Hampshire is negligible.... (“The size of a distribution of offending material helps determine whether a defendant acted intentionally.”). Though some 7,000 members of the Dartmouth community theoretically had access to The Deal Pipeline, the plaintiffs do not dispute the defendants’ representation that only 30 users were signed up to use that subscription to access The Deal’s online portal at the time the articles were published, and that only two users actually received an email newsletter containing active links to the articles. Such “thin distribution may indicate a lack of purposeful contact,” and it appears to do so here....

Regardless of the number of individuals who could have accessed the offending articles through Dartmouth’s subscription to The Deal Pipeline, the evidence presented suggests that none did. Unlike in Keeton and Calder, where New Hampshire residents read the allegedly libelous statements, presumably, damaging the plaintiffs’ reputations, Scottsdale’s reputation in New Hampshire cannot be impacted by the statements allegedly published in New Hampshire if no one in New Hampshire saw the statements.

The court also notes that there's a strong appearance that the lawsuits were filed to create a burden on the reporter, Meagher:

The defendants’ burdens of appearing in New Hampshire and the inconvenience to the plaintiffs weigh somewhat against finding jurisdiction here. While that burden on The Deal, a corporate defendant located in New York, is not heavy, the burden on Meagher, an individual residing in California, may be. Ticketmaster-N.Y., 26 F.3d at 210 (“The burden associated with forcing a California resident to appear in a Massachusetts court is onerous in terms of distance . . . .”);....

“As the First Circuit has explained, however, the ‘burden of appearance’ factor is important primarily because ‘it provides a mechanism through which courts may guard against harassment.’” R&R Auction Co., LLC v. Johnson, 2016 DNH 40, 23 (Barbadoro, J.) (quoting Ticketmaster-N.Y., 26 F.3d at 211). This is not the first action that Scottsdale has brought against the defendants for defamation. In May 2016, Scottsdale sued the defendants in New York, where The Deal is located. It withdrew that action on the eve of the deadline for defendants’ motion to dismiss, forcing the defendants to incur the expense of drafting that motion unnecessarily, and then filed this action in New Hampshire. Scottsdale also sued FINRA in Arizona over its investigations of Scottsdale. The defendants here suggest that “the Plaintiffs’ primary strategic purpose” for bringing both the New York and New Hampshire actions “was to coerce Defendants into revealing the identity of Mr. Meagher’s confidential source in the hopes that this information would bolster their case against FINRA in Arizona.” Scottsdale does not deny -- nor even address -- this allegation in its objection and did not do so at oral argument. This factor, therefore, weighs heavily against the reasonableness of this court finding personal jurisdiction.

This ruling also comes the day after another Charles Harder lawsuit was filed in New York. Again, there, we noted that there were serious statute of limitations questions.

In a profile of Charles Harder published in the Hollywood Reporter last year, it was noted that Harder is well aware of the differences in state laws over defamation:

In his offices, Harder keeps charts mapping the differences in libel and privacy laws throughout the country. He also has become a pro on where to strategically file cases.

It appears that at least some courts are not impressed with the "strategy" behind where Harder files his cases.

Filed Under: charles harder, john hurry, jurisdiction shopping, new hampshire, statute of limitations, william meagher
Companies: scottsdale advisors, the deal

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The 'Gawker Effect' Is Chilling Investigative Reporting Across The US

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Harvey Weinstein Tries Every Possible Response To Explosive NY Times Story

from the wanna-try-that-again,-harvey dept

Charles Harder Loses Again: You Can't Just File Defamation Lawsuits In A Random State Because You Like Its Statute Of Limitations

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