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

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

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

Rhode Island Legislators Decide To Introduce Some Random Dude's First Amendment-Threatening Legislation

from the have-you-tried-approaching-your-job-professionally dept

Today's most inexplicable legislative news comes to us from the state of Rhode Island, where legislators are apparently accepting (and submitting!) unsolicited pre-written bills from strangers on the street.

[Rep. Grace] Diaz told The Journal she introduced the legislation at the request of a man named Chris who approached her after a State House hearing, wearing what appeared to be a military uniform.

According to Diaz, Chris told her he had been “accused of something,″ and then found not guilty.

Diaz said the man told her the media reported the accusations, but not his acquittal, so he was left with a damaged reputation and no recourse. Diaz said the man gave her a copy of the bill, which appears to echo a bill filed in Mississippi.

Rep. Diaz asked Senator Sandra Cano to introduce the bill in the Senate, promising to do the same thing on the House side. Diaz did not do this and now Sen. Cano is trying to separate herself from a bill that openly threatens First Amendment protections while citing the enshrined right on its way to tarnishing it shortly thereafter.

The "Stop Guilt by Association Act" [PDF] threatens journalists with punishment if they don't report on the outcome of court cases, civil and criminal. The incredibly stupid act is pure cognitive dissonance that would fine newspapers up to $10,000 for "failing" to report on lawsuit dismissals and dropped charges -- supposedly with an eye on maintaining some bizarre level of "fairness" for subjects of news coverage.

In their legislation, the lawmakers acknowledge that the First Amendment of the U.S. Constitution says the government “shall make no law abridging the freedom of the press.”

But they make this argument in their bill:

“The state has a compelling interest to compel the press to promote the objective truth for the sake of the viability of democracy and for the safety, health, and welfare of our communities and in keeping with the spirit of the Due Process Clause of the Fourteenth Amendment and to stop the press from serving as a slander machine.”

For many reasons, legislators shouldn't accept pre-written bills handed to them by people outside the legislature. They especially shouldn't accept legislation written by this particular "Chris," no matter what he's wearing.

The man who spoke to Diaz was Chris Sevier, an anti-gay and anti-abortion activist who at one point was accused of stalking country music star John Rich.

This is the idiot behind multiple states' declarations that porn is a "public health crisis." This is the same man who once sued Apple because its products didn't prevent him from viewing porn. He has also previously talked Rhode Island legislators into introducing extremely questionable legislation, so perhaps someone should have called bullshit on this before tossing it into the Senate's inbox.

While it's understandable people might not recognize Sevier on sight, despite his insistence on thrusting himself uninvited into the legislative limelight, it's pretty much inexcusable to take a handful of paper from some rando on the street and ask other legislators to damage their own reputations by association.

Rep. Diaz at least appears to be properly horrified by this experience.

“My feeling is beyond what I can express,″ Diaz told The Journal on Thursday, after learning of Sevier’s history. “If I knew, I would run ten-thousand-million miles away from that guy.”

She said she sympathized with the issue Sevier raised in their very brief conversation, but regrets not doing more homework on him — and the legislation.

“I didn’t do my research,″ she said. “This is an experience that will teach me a lot for the future.”

But Senator Cano -- despite withdrawing the bill -- seems far too sympathetic to First Amendment-threatening legislation. Calling the lack of followup to indictments and lawsuits by journalists "fundamentally unfair," Cano says she sympathizes with the intent of the bill, even if she realizes it runs afoul of the First Amendment.

No legislator should feel sympathetic to Sevier or his word salad. His bill is an unedited letter to the editor -- one that makes its point about as skillfully and subtly as a Larry Klayman lawsuit.

“There has been a growing trend for individuals to abuse process and maliciously prosecute someone they disagree with ideologically by filing spurious cases and controversies in various government venues for ulterior motives, knowing that certain segments of the media that align with their ideology would serve as an accomplice by engaging in a form of defamation ... by selectively reporting on the facts of the original case but not on the actual outcome.”

TIL: reporting on facts is defamation if it doesn't include the facts someone might prefer to be highlighted. OK, then.

Fortunately, the bill is already dead. Unfortunately, this shows how little due diligence legislators do before submitting bills for consideration. A few minutes of Googling would have seen this headed to the trash receptacle, rather than the state legislature's permanent record. And even the most cursory glance at its contents would have made it clear the bill was unconstitutional. Better late than never, I guess. But in this case, never would have been the much better option.

Filed Under: 1st amendment, chris sevier, defamation, free speech, freedom of the press, grace diaz, rhode island, sandra cano, stop guilt by association

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

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

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

8chan Founder, Who Has Denounced The Site, Now Facing 'Criminal Cyberlibel' Charges From Current Owner

from the oh-come-on dept

Fredrick "Hotwheels" Brennan founded 8chan in 2013 after he and a group of other fairly naive souls felt that 4chan (yes, 4chan) had become too unfriendly to "free speech" because it had started to block some harassment and abuse on the site. It's always amazing to me the people who insist that internet platforms should allow all speech, without recognizing that what they are asking for is inevitably a cesspool of garbage. Brennan eventually realized as much, relinquished control over the site to Jim Watkins, and even called for the site to be shut down and criticized Watkins. Back in November, Watkins responded by filing a criminal "cyberlibel complaint" in the Philippines. The latest news, from the Filipino site Rappler, is that warrant has been issued for Brennan's arrest.

There are so many insane things about this, it's difficult to know where to start. First of all, I'm always perplexed by people who position themselves as free speech absolutists then suing people for libel. It seems to kind of prove that they don't actually believe what they claim to, and have no problem using the powers of the state to silence speech they dislike.

Second, the whole idea of criminal libel -- let alone the "cyber" variety -- seems positively insane, though we've seen it used before in the Philippines, including against Rappler founder, Maria Ressa. At the very least, it would seem to go against Section 4 of the Filipino Bill of Rights, which states:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

Even the comments that Brennan made, that Watkins has filed these claims over, seem pretty ridiculous. Brennan had tweeted "My theory that Jim Watkins himself is going senile and actually believes in Q is no longer a theory" after it was reported that Watkins was wearing a "Q" pin when testifying before Congress. Calling someone senile would not be libel in the US, and the idea that it would be criminal makes no sense at all.

Brennan happens to be in the US at this time and apparently has decided not to return to the Philippines (where both he and Watkins live) as long as the charges remain in place.

The surprise decision means that Brennan, who is confined to a wheelchair and suffers from a condition known as brittle bone disease, could face up to 12 years in prison.

“It’s basically a death sentence,” Brennan told VICE News from Los Angeles.

His lawyers have filed an appeal of the indictment, which is a fascinating read on its own. It opens with a Voltaire quote: "I may utterly detest what you write, but I shall fight to the death to make it possible for you to continue writing it." And then states:

VOLTAIRE'S PONTIFICAL VERSE bestirs once again the basic liberties to free speech and free press -- liberties that belong as well, if not more, to those who question, who do not conform, who differ. For the ultimate good which we all strive to achieve for ourselves and our posterity can better be reached by a free exchange of ideas, where the best test of truth is the power of the thought to get itself accepted in the competition of the free market -- not just the ideas we desire, but including those thoughts we despise.

RESPONDENT-APPELLANT FREDRICK ROBERT BRENNAN ("Respondent"), by counsel, most respectfully files this APPEAL/PETITION FOR REVIEW ("Appeal") to the Honorable Secretary of Justice to REVERSE AND SET ASIDE the highly arbitrary, completely baseless, grossly unjustified and manifestly erroneous RESOLUTION of the investigating prosecutor Juliene Raymond A. Cabanacan, acting as Assistant City Prosecutor of Pasig City ("ACP Cabanacan"), dated January 02, 2020 ("Resolution), copy was received by the undersigned counsel on February 19, 2020, finding probable cause for the offense of cyber libel against respondent.

For lack of attention to detail, ACP Cabanacan erroneously cited an incorrect provision of cyberlibel under RA 10175. He cited Section 4 paragraph 4 as an offense that has been violated by respondent. This is defective and is not the correct provision on Cyberlibel in RA 10175.

It goes on from there, but the presentation here is quite fascinating -- from the Voltaire quote to the "most respectfully" immediately followed by "highly arbitrary, completely baseless, grossly unjustified and manifestly erroneous" bit. One would hope that the DOJ would rethink this, but given what little we've seen of how this bizarre cyberlibel law is enforced in the Philippines, I wouldn't hold out much hope.

Filed Under: criminal, cyberlibel, defamation, fredrick brennan, free speech, jim watkins, libel, phillippines
Companies: 8chan

Steven Biss Loses Another Wacky SLAPP Suit; Judge Scolds, But Does Not Sanction, Him

from the slappity-slapp-slapp dept

Steven Biss has lost again. A week after losing one of his many, many lawsuits representing Congressman Devin Nunes, and also facing possible sanctions in another case, a judge has dismissed yet another one of his SLAPP suits. Once again, as is often the case with Biss, the lawsuit was nonsense, included aspects that were much more performative than legally sound, and was somehow tied to various conspiracy theories and right wing wackiness. As we highlighted last week, it's noteworthy how many of Biss's clients seem to have connections to one another, and this case is no different.

This case was filed last year by a Russian-born academic, Svetlana Lokhova, suing Cambridge academic Stefan Halper and a variety of media properties and journalists, including the New York Times, the Washington Post, the Wall Street Journal, and MSNBC. At issue were effectively follow ups on a flurry of stories in early 2017 (that date becomes important in a moment), soon after Michael Flynn was forced to resign as Donald Trump's first National Security Advisor, under a cloud of suspicion on a variety of fronts. A variety of media organizations reported that US intelligence officials "had concerns" about Flynn and some possible connections to Russia, including a dinner he had with a group of people at Cambridge, which included (among others) Lokhova. Lokhova seems to blame Halper for these stories -- and thus sued him and some of the media outlets that reported them.

The stories all focused on Flynn, and specifically the concerns of US intelligence agencies about Flynn. Some of them, such as the NY Times story from 2018, don't even name Lukhova, and only obliquely refer to someone who might be her. This is also true of a 2018 Washington Post story that describes Lukhova in reference to Flynn, but also fails to even name her. And yet, in 2019, Lokhova sued for defamation -- using Biss as her lawyer.

What's notable here is that just a month before the lawsuit was filed, Rep. Devin Nunes (that guy?!?) referenced Lukhova in a Fox News interview right after the Mueller Report came out, and Nunes suggested that he wanted to investigate if there was someone who "set up" misleading evidence in order to create the Mueller investigation. This was part of Nunes' ongoing efforts to build up a bizarre conspiracy theory regarding the Mueller Report -- to the point that he's saying Mueller's team should face criminal charges and that he's planning to make "some type of criminal referral." Nunes seemed to argue that whoever "accused" Flynn of "having some type of Russian fling" needs to be investigated:

"The first is involved with Gen. Flynn," Nunes said. "Gen. Flynn was supposedly entrapped, was meeting with a Russian woman. I want to know what really happened there because we are just now finding out about this and we need a lot more information on what really was general Flynn doing. It's a big deal if somebody within our intelligence agencies were accusing a three star general of having some type of Russian fling. It's serious stuff. I want to get to the bottom of that."

Either way, in April he mentions her, and then a month later she's represented by the same lawyer representing him and a variety of other loosely connected political operatives who all seem to be pushing similar conspiracy theories. Quite a coincidence!

Anyway, as you probably know, defamation law has a statute of limitations that varies by state. In Virginia, like many states, the statute of limitations is one year. Most of the articles and statements being sued over came way before that. This is something that a good lawyer should have known about. Biss tried to argue that because people have been tweeting links to those older articles, it resets the clock. That, of course, is not how any of this works. In defamation cases, there's something called the single publication rule, which means that you date the statute of limitations to when the statements were first made, leading the judge to easily toss out the claims on most of the articles. Other attempts to reset the statute of limitations also fail, including a claim that because a more recent NY Times article links back to the earlier one, that counts as "republication." As the court notes, if the new article was actually referencing her, she might have an argument, but it isn't.

Although this argument might be meritorious in other contexts, it fails here. The New York Times' April 9, 2019 article, titled "Justice Dept. Watchdog's Review of Russia Inquiry Is Nearly Done, Barr Says," does not mention or concern Lokhova; instead it focuses on the Inspector General's investigation "into aspects of the Russia inquiry, including whether law enforcement officials abused their powers in surveilling a former Trump campaign aide." See Am. Compl. ,r 5 (linking to https://www.nytimes.com/2019/04/09/us/politics/russiainvestigation- barr.html). The article's discussion of Halper includes a sentence containing a hyperlink to the May 18, 2018 article. Id. The underlined portion of the following sentence contains the hyperlink: "Mr. Halper's contacts have prompted Republicans and the president to incorrectly accuse the F .B.I. of spying on the campaign." Id. This statement does not substantively alter or add to the portion of the May 18, 2018 article that allegedly defamed Lokhova. "[U]nder traditional principles of republication, a mere reference to an article, regardless how favorable it is as long as it does not restate the defamatory material, does not republish the material." In re Philadelphia Newspapers, LLC, 690 F.3d at 175. This is because "[ w ]bile [ a reference] may call the existence of the article to the attention of a new audience, it does not present the defamatory contents of the article to the audience." Salyer v. Southern Poverty Law Center, Inc., 701 F.Supp.2d 912, 916 (W.D. Ky. 2009) (emphasis in original). Under this persuasive case law, the New York Times' 2019 article does not retrigger the statute of limitations for the May 18, 2018 article.

Biss, laughingly, tries to argue that because other people have linked to those older articles, that resets the liability for those beyond-the-statute-of-limitations pieces. The court is not buying it.

This argument is similarly unpersuasive. Lokhova has not cited any case holding that a media organization is liable in perpetuity for third-party tweets of its allegedly defamatory materials. Indeed, Lokhova's argument is inconsistent with persuasive case law from other courts, which "have concluded that statements posted to a generally accessible website are not republished by" "a third party's posting the statement elsewhere on the internet."

There's a lot more, but systematically the court explains over and over again why Biss's legal arguments are wrong.

There are two publications that do fall within the statute of limitations, though. One by the Washington Post (mentioned above, which does not even name Lokhova) and a tweet by MSNBC's Malcolm Nance. For what it's worth, earlier in the opinion, the court pointed out that Nance was added as a defendant only with a later amended complaint, and it appears that no effort was ever made to serve him with the lawsuit. Indeed, the court throws out the claims regarding Nance on this basis alone:

Although Nance was added as a defendant in the Amended Complaint on August 29, 2019, plaintiff has made no effort to serve him with that complaint. Plaintiffs failure to serve Nance was raised at the October 25, 2019 hearing, which placed Lokhova and her counsel on clear notice that service was required. As such, in addition to the substantive reasons discussed in this Memorandum Opinion, the complaint against Nance will also be dismissed because by not making any effort to serve Nance, plaintiff has apparently abandoned her claim against him.

As for the Washington Post article, the court points out just how ridiculous those claims are, in part because the only direct statements that Biss/Lokhova claim are defamatory are... not.

The complaint identifies only two statements in the entire 2,262-word Post article (Attachment B) that are allegedly false and defamatory of Lokhova: (I) that Halper "attended" the February 2014 dinner, and (2) that "Halper and Dearlove were disconcerted by the attention the then- DIA chief showed to a Russian-born graduate student who regularly attended the seminars, according to people familiar with the episode."... Even assuming the first statement to be false, the statement does not defame anyone, and clearly is not "of and concerning" Lokhova; it relates to Halper alone. The second statement does not name Lokhova and simply includes a generic reference to a "Russian-born graduate student who regularly attended the seminars." Even assuming that the statement is "of and concerning" Lokhova and is false, it does not defame her. At most, the second statement suggests there were concerns about Flynn's behavior towards Lokhova, without stating or implying that Lokhova herself did anything improper. The same conclusion applies when the two statements are considered together, and in the context of the other statements in the article as a whole, particularly because the sentence immediately following the second quote provides a clear disclaimer of any wrongdoing: "the student and a Defense Department official traveling with Flynn have denied that anything inappropriate occurred."... In short, there is nothing in this article that defames the plaintiff.

Various other claims are easily tossed out as well for this reason or that. Throughout the ruling, though, you can steadily see Judge Leonie Brikema's frustration with Biss's legal strategy. Early on, in a footnote, the judge points out that Biss's complaint has the appearance of being filed for political reasons, rather than legitimate jurispredential concerns:

Although Flynn is not a party to this action, the complaint frequently mentions him. Indeed, some portions of the complaint do not focus on Lokhova, but instead discuss Flynn, Halper, President Donald J. Trump, and others. For example, one paragraph of the complaint states that during a BBC radio program in May 2017, "Halper misrepresented that 'people are deeply concerned about the erratic nature of this White House."'... Such unnecessary and irrelevant statements suggest that political motives, more than legitimate jurisprudential concerns, drive this litigation.

Later on, another footnote calls out another attempt by Biss to try to claim possibly defamatory statements within the statute of limitations, and notes that one of them happened after the complaint was filed, which is not how any of this works. It further notes that a mere phone call between Lokhova and a journalist isn't "publishing" for purposes of defamation. In other words, this is just bad lawyering all around.

... the complaint alleges that on an unspecified date, Halper told a chief reporter with the Sunday Times of London that Lokhova was a Russian spy... The placement of this allegation within the complaint's chronology suggests Lokhova is alleging that this statement occurred in December 2016, which would make it time-barred. The complaint then alleges that on December 19, 2019, the reporter "called Lokhova and repeated the false allegation." This allegation is obviously erroneous, because December 19, 2019 had not yet occurred when the complaint was filed. Even if this phone call took place within the statute of limitations, it would not constitute defamation, because the complaint does not allege that the call involved anyone besides the reporter and Lokhova.

The judge also notes that Biss -- as he has done in other cases -- uses the kind of language not commonly found in legal complaints. Halper asked for sanctions against Biss, and while the court declines to issue such sanctions, the judge clearly looks skeptically upon Biss's actions:

The record is clear that Biss filed an excessively long complaint and amended complaint on Lokhova's behalf directing unprofessional ad hominem attacks at Halper and others. For example, the complaint calls Halper a ''ratf***er,"... and refers to the media defendants as "stooges," ... Such language adds nothing but unnecessary heat to this litigation. Moreover, the complaint exaggerates the nature and content of the allegedly defamatory statements. In addition, Biss and Lokhova had to have known that most of her claims were time-barred, as she had previously filed an unrelated defamation lawsuit in the United Kingdom, which was dismissed as untimely under the one-year statute of limitations applicable in that jurisdiction.

It's not that surprising that the court has refused to issue sanctions. Very few judges will, and it generally takes very extreme behavior -- and most judges are willing to give lawyers the benefit of the doubt for a very long time. But the judge here at least notes that she'll be paying attention to future actions in this case, should they occur:

Although the Court does not condone the tactics employed by Biss and Lokhova in this action, their conduct is not sufficient to warrant the draconian measure of imposing sanctions at this time. The allegations of improper behavior by Biss are undoubtedly more severe than those by Lokhova, and should Biss file further inappropriate pleadings or pursue frivolous post-judgment litigation against any of these defendants, sanctions might well be justified.

For what it's worth, Lokhova has already announced that she will be "appealing the decision on many grounds." That won't work. Considering that almost all of the case was thrown out for being outside the statute of limitations, there's not much chance of anything happening on that front. Not surprisingly, on Twitter, various Lokhova supporters are already concocting fanciful conspiracy theories about the deep state and the "leftist judge" so this nonsense isn't over yet.

At least Biss didn't use this case to subpoena Twitter for the identity of the satirical @DevinCow account.

Filed Under: 1st amendment, defamation, devin nunes, free speech, malcolm nance, michael flynn, statute of limitations, stefan halper, steven biss, svetlana lokhova
Companies: msnbc, ny times, washington post

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

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

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