Rep. Devin Nunes Now Threatening To Sue Fellow Congressional Reps

from the frivolous-lawsuits-for-everyone dept

It really wasn't that long ago that Rep. Devin Nunes was a co-sponsor of the Discouraging Frivolous Lawsuits Act. Of course, since then, he's been filing a whole bunch of frivolous lawsuits against news organizations, journalists, political operatives, critics, and, most famously, a satirical internet cow.

At times he's admitted that these lawsuits are about fishing for journalist's sources, but it certainly seems pretty clear that this is all an intimidation campaign, by a silly little man who is an elected representative in Congress and simply can't handle criticism. Of course, as more evidence comes out that, at the very least, suggests that Nunes is somehow tied up with all of the mess around impeachment -- including reports revealing that the indicted Lev Parnas spoke by phone with Nunes -- he seems to be getting more and more upset with anyone calling him out.

The latest is that fellow California Representative Ted Lieu noted on Twitter that Nunes' lawyer sent him a letter threatening to sue Lieu for saying "that Nunes conspired with Parnas."

Unfortunately, Lieu hasn't yet released that letter, but I'm hoping he does. I'd be curious to see if Nunes tries to sue Lieu in Virginia like most of his other lawsuits, rather than California. Also, I'd love to see how Nunes and his lawyer think they can get around the Speech or Debate Clause.

In the meantime, Ted Lieu, we really could use more people in Congress supporting a federal anti-SLAPP law. Seems like now might be a good time for you to support such a law, right?

Filed Under: 1st amendment, anti-slapp, defamation, devin nunes, free speech, lev parnas, slapp, speech or debate clause, ted lieu, threats

Dear Larry Lessig: Please Don't File SLAPP Suits

from the what-a-disaster dept

Anyone who reads Techdirt knows that I've been heavily influenced by Larry Lessig, and have learned a lot from him. There still are many areas where I have and continue to disagree with him, but on the whole, when he comes up with a project, or writes about something, I am compelled to listen to him. I often appreciate his willingness to effectively take on big, crazy, impossible challenges -- ones almost certainly destined to fail -- in support of a principle or an idea. In recent years, this has included his ill-suited campaign for President, his flopped attempt to create an anti-SuperPAC SuperPAC, his plan to change the way the Electoral College works, his attempt to call for a Second Constitutional Convention (to route around Congress to amend the Constitution), and, even (tragically) his attempts to use the courts to end copyright term extensions. Even when I thought the ideas were a bit silly, the very least you could say about Lessig was that he was willing to take crazy chances to make changes in the world that he thought would improve the world. You could say that he was the living embodiment of the idea that, rather than complaining about the system, you need to make a real effort to change the system, no matter how quixotic that effort might be.

And, even when I disagreed with him or thought his projects to be misguided or silly, I still supported his willingness to put his best ideas out there and try to come up with clever ways to make them a reality. Indeed, I found much of it to be admirable and principled.

However, I cannot and will not support his latest crusade, which is a dangerous attack on free speech, and frankly goes against everything that I thought Lessig stood for. Indeed, to me this move undermines much of Lessig's legacy, and forces me to rethink my past support for him and his projects. The short version is that Lessig has filed a defamation lawsuit against the NY Times, its executive Editor Dean Baquet, its Business Editor Ellen Pollock, and reporter Nellie Bowles. Lessig is upset about the way some blog posts he made were portrayed by the NY Times. And you can, perhaps, understand why. The NY Times' framing of Lessig's positions, regarding Jeffrey Epstein and his funding of MIT's Media Lab, was, at the very least, shaded in a manner that did not portray the nuance that Lessig hoped to convey in his Medium posts on the matter. But not fully portraying the nuance is not defamation.

Furthermore, Lessig appears to be using this to kick off much more of a campaign against free speech and a free press, by saying this is his attack on what he calls "clickbait defamation." This is, unfortunately, the same sort of framing that lots of people have been using to go after journalists of late, when they don't like the framing or how they're portrayed in the media. In short, Larry Lessig appears to have filed a SLAPP suit. And that's tremendously disappointing.

Let's take a step back. Lessig was tangentially associated with the mess last fall regarding Jeffrey Epstein's donations to the MIT Media Lab, which was run by Joi Ito. Reports detailed how Ito cultivated a relationship with Epstein, and then later sought to hide it from various people -- including those associated with the Lab. Ito has long been considered one of the "good" people in the tech world, and this situation upset many people who were shocked to find Ito's involvement, and his ethically dubious decisions. Ito, after immense public pressure, resigned from the Lab.

Lessig, who has known Ito for many years, had signed a petition in support of Ito prior to all of the details coming out and prior to his resignation. This raised some eyebrows among those who felt that Ito's decisions had clearly crossed a line. After Ito resigned, Lessig -- as he's been known to do -- took to Medium to effectively work through his thoughts on the matter. He revealed that Ito had sought his advice before taking the Epstein investment. Lessig, who has publicly discussed how he was sexually abused as a child, had acted as something of a sounding board for Ito on whether or not it was inappropriate to take money from someone accused of similar crimes. It was clear that Lessig had extremely mixed feelings about the whole thing and was trying to "write through" his thoughts. While I can see -- and sometimes support -- the idea of writing out ideas where you're unsure of where to eventually land, doing so almost always risks people taking some of the statements (especially "on the one hand, on the other hand" or "here's how I thought about it back then..." statements) completely out of context.

Without getting into the full text of Lessig's piece (though I recommend reading it), many, many people (including many supporters of Lessig) reacted very, very negatively to it. For what it's worth, my own reaction was that, in it, Lessig appeared somewhat tone deaf to the actual concerns with accepting the donations, and made a bunch of assumptions that weren't necessarily accurate -- but again, giving him the benefit of the doubt, I found it interesting that he was really clearly trying to struggle through the conflicting feelings he had about the whole mess. In particular, I actually appreciated that Lessig did what few people are willing to do: to try to break down exactly his mindset in making a decision that -- in hindsight -- he now recognized was a mistake. And thus, part of his essay could be read as a "defense" of the original decision to support Epstein's donation to MIT's Media Lab.

And that quite reasonably upset people, though, for sometimes different reasons. Some were upset that they believe he was rationalizing his support for Ito taking Epstein's money. Some were upset that they read this (perhaps inaccurately) as a defense of Ito taking the money. And some were upset that his attempt to put himself back in that original mindset suggested that, even at the time, his thinking on this was... not great. Particularly troublesome (to me, at least) was his assumption of why he felt that Epstein wanted to donate to MIT (Lessig suggested it was an attempt to rehabilitate his image) and why, at the time of the initial donation, he thought it might be okay for MIT to take it: if they did it in a way that did not allow him to burnish his reputation.

Specifically, Lessig suggested that Epstein was what he referred to as a "Type 3" donor, who he described as:

Type 3 is people who are criminals, but whose wealth does not derive from their crime. This is Epstein, but not just Epstein. It may be that we’ll discover that Epstein got rich by blackmailing people whom he had encouraged or enabled to commit abuse. I doubt it, but it’s possible. Suffice it that when Joi was investigating whether that criminal continued his crime, no one was suggesting that his enormous wealth was the product of blackmail or sex slavery. He was, the world assumed, a brilliant, savant-like investor, who was also a sexual predator.

He then noted that if a university were to take such money, it should not be used to "forgive" the donor:

I think that universities should not be the launderers of reputation. I think that they should not accept blood money. Or more precisely, I believe that if they are going to accept blood money (type 4) or the money from people convicted of a crime (type 3), they should only ever accept that money anonymously.

And, later, he specifically said: "IF you are going to take type 3 money, then you should only take it anonymously."

There actually is an interesting question buried in all of this, which Lessig sort of mentions in passing, but never explores that in-depthly. If a "bad" person makes a ton of money, what should happen to all that money? Is it effectively tainted forever? Could no one accept the money from that person and use it for good and the advancement of good? That's... a big philosophical question, and Lessig hints at it, but doesn't go too deep on it.

Still, the larger point behind Lessig's essay was that this level of thinking -- where his mind was back when he had supported Ito's decision -- was clearly wrong. And he was trying to understand why it was wrong and why he had made that mistake. Later in the essay he makes this explicit:

But what I — and Joi—missed then was the great risk of great harm that this gift would create. Sure, it wasn’t blood money, and sure, because anonymous, the gift wasn’t used to burnish Epstein’s reputation. But the gift was a ticking time bomb. At some point, it was destined to be discovered. And when it was discovered, it would do real and substantial pain to the people within the Media Lab who would come to see that they were supported in part by the gift of a pedophile. That pain is real and visceral and substantial and not taken seriously enough. And every bit of emotion and outrage from victims that I have seen in this episode is, in my view, completely justified by the completely predictable consequence of that discovery.

Either way, the NY Times published an article by reporter Nellie Bowles, entitled: A Harvard Professor Doubles Down: If You Take Epstein's Money, Do It in Secret. So, does that misrepresent the larger point of Lessig's piece? Absolutely. But does he say that? Well, yes, he does. And, while I've had many, many concerns about the way in which I believe the NY Times often does a terrible job misrepresenting things -- and have even called out what I believe is sloppy reporting on the part of Bowles -- to argue that this particular framing is defamatory... is very problematic.

But that is what Lessig has done. He argues that this is "clickbait defamation." He argues that the headline and the lede (the opening text beneath the headline) are misleading, and designed to draw people in by being misleading. Lessig is going even further than just filing a lawsuit. He's created an entire website called "ClickbaitDefamation.org" and started a podcast about the issue (which he claims will go beyond just his own lawsuit).

But, there are significant problems with this:

1. This is legally preposterous.
2. This will cause real harms for those he sued.
3. This creates a massive chilling effect on a free press.
4. If, somehow, he succeeds, it will open the floodgates for more abusive lawsuits

As for it being legally preposterous, lawyer Ken "Popehat" White has explained that while Lessig's complaint is basically just with the headline and lede of the story, defamation law requires that the court judge the entirety of the context within which the statement is made. You don't get to cherry pick. Indeed, it's somewhat ironic that part of the complaint here by Lessig (and in similarly questionable defamation lawsuits) is the argument that the press "cherry picked" a statement, and didn't give the full context. Yet, that's what Lessig himself is doing in arguing that just the headline and the lede are what is defamatory.

Because if you look at the whole of the article, it does provide the nuance. Joshua Benton from the Nieman Lab did a nice job breaking down how everything that Lessig claims is somehow defamatory, are actually things he said. It may be true that Lessig doesn't like how the headline portrayed his position, but nothing they said is defamatory.

John Roddy makes an interesting point that perhaps one could argue that the fact that the article itself (but not the headline and lede) are behind a (fairly porous) paywall could somehow change the calculus, but that seems unlikely to fly in any court.

Either way, the entire crux of Lessig's lawsuit is about splitting hairs. The NY Times headline and lede suggest that Lessig was "defending" MIT soliciting and accepting donations from Epstein, when what he was more doing was trying to understand why he did support the idea years back -- and then explaining why he was wrong. But, that doesn't change the fact that many, many people certainly read Lessig's piece as a defense of the Epstein donations. The fact that many people misunderstood is also why Lessig later added an addendum and tried to clarify. Yet, now he's suing the NY Times, its reporter and two editors, because they may have misunderstood it in the same way lots of people did.

Larry, if so many people misunderstood your intent with the article, perhaps the problem was with how you wrote it. You don't get to sue over that.

What troubles me, though, is that of all the people out there, Larry Lessig should know more than others how much pain and pressure a lawsuit can cause people. You could argue that it's one thing to just sue the NY Times, but he added individuals as well. Now, it's quite likely that the NY Times and its more than capable lawyers will handle the legal work for each of the individual defendants, but it will still create a massive headache in terms of time, energy, and attention that must be put forth.

In addition, merely by suing, Larry Lessig is creating a chilling effect. I've spent nearly a whole freaking day writing this article, and I'm trying to choose each word -- especially in my description of what Lessig wrote -- extra damn carefully, because he has now shown, that if he doesn't necessarily agree with your take, and thinks that you're engaging in "clickbait," that he can or should sue for defamation. I'm kind of shocked, because the last thing I ever expected is that I would feel intimidated and chilled by Larry Lessig. And, yet, here we are.

And, should Lessig somehow (miraculously) win, this will set off a ton of bogus, chill-inducing SLAPP suits. As someone who has written literally tens of thousands of headlines, it is impossible to include all relevant and salient points in a headline. It is impossible to include all nuance in the headline. Headlines are supposed to show the interesting bits. Yes, you can argue that clickbait is a bad practice, but highlighting a key point in a headline and then including the relevance and nuance elsewhere is part of journalism. Saying that every headline must include all nuance is literally impossible. Even worse, it would open up the floodgates for all sorts of crackpot SLAPP suits.

The fact that he has set up a dedicated website and a podcast about "Clickbait Defamation" makes me worry that this may be one of his latest crusades: to "open up our libel laws" and expand the definition of defamation to include the idea that a headline and lede, that don't show all facts or all nuance, open you up to a defamation claim. And that would create a massive chilling effect on the press.

Larry: don't let this be your legacy.

And while I can understand why Lessig -- a resident of Massachusetts -- sued in Massachusetts, I will note (as I know all too well and all too personally) that Massachusetts has an incredibly weak anti-SLAPP law that only applies to speech petitioning the government. Massachusetts needs to pass an updated anti-SLAPP law that stops these kinds of suits (and the federal government should pass one as well, to guarantee that anti-SLAPP laws apply in federal court as well). But, the real shame here is that someone I have looked up to and been inspired by in the past, is now filing a lawsuit like this and pushing for an interpretation of the law that will harm journalists. It is a true shame. It is surprising. But, mostly, I am so very disappointed in Larry.

Filed Under: 1st amendment, anti-slapp, clickbait defamation, defamation, framing, free speech, jeffrey epstein, joi ito, larry lessig, nellie bowles, slapp
Companies: ny times

The Rorshach Test Of The Covington Catholic Boy's DC Encounter Now Extends To Bogus Lawsuits And Confidential Settlements

from the everyone-sees-what-they-want-to-see dept

Buckle up folks, because this story takes a few twists and turns, and some of them may make you angry -- though I hope people will hold back their kneejerk reactions, because that kind of thing is what created this mess in the first place.

As you probably recall, a year ago, there was a whole viral media shitstorm regarding an encounter in Washington DC between some kids from Covington Catholic High School in Kentucky, Native American activist Nathan Phillips, and a bunch of other people, including members of a group known as the Black Israelites, who appeared to be egging everyone on. A first video that made the viral rounds on Twitter just showed the encounter between CCH student Nick Sandmann, clad in a red MAGA hat, and staring down Phillips who was banging a drum. Later videos added in more context, including the Black Israelites and their role in the whole thing. One of the points a few people raised is that your interpretation of the whole thing is very much a Rorschach test for what you already believe. You can reasonably argue that people completely misrepresented the encounter and you can reasonably argue that they did not.

It is a subjective issue. You see it through your own context and experiences, and it comes down to each and everyone's opinion. I'd personally argue that there was a little bit of truth in nearly all of the viewpoints, and not having the entire context is not akin to false statements, but rather simply not having the full picture. As more context was added, many people changed their views, and that's cool too.

But given that these are subjective opinions, the idea that one might sue over them is simply batshit insane. And yet, people rushed to sue. In particular, we highlighted how the CCH student at the center of all of this sued the Washington Post, and later both NBC and CNN, for their coverage. Sandmann was represented by L. Lin Wood and Todd McMurtry. (For what it's worth, Wood recently lost that high profile defamation case against Elon Musk on behalf of cave diver Vern Unsworth). We found little in the lawsuits to be compelling, and were not at all surprised when a judge tossed out the one against the Washington Post, noting that everything they published was protected by the 1st Amendment. However, that case has been reinstated on fairly narrow grounds, following an amended complaint that targets some very specific language used by the Post. I'd still be surprised if he won, but the more narrow claims do at least have slightly more validity to them, especially if the court agrees that Sandmann is not a public figure (which would lower the bar for a defamation claim).

Earlier this week, news broke that CNN and Sandmann had agreed to settle that complaint -- and once again we had a bit of a Rorschach test. The terms of the settlement appear to be totally confidential, which is disappointing, but not at all uncommon. It is, in fact, possible that no money exchanged hands at all. However, many people who support Sandmann are insisting that this is vindication for him, even if that's not at all clear. Some are even saying that CNN must have paid "in the millions." Again, no information on the settlement is public, and to say that this was vindication or to speculate on any settlement amount seems ridiculous -- especially given that the entire thrust of the lawsuit was about news media commenting on issues without knowing the full details or context of the story.

But the story then got even stranger. Because on Wednesday, PJ Media had a headline trumpeting that author Reza Aslan would "face the music" for tweeting that Sandmann had "a punchable face." Already that should have raised alarm bells, because there is literally nothing at all defamatory in saying someone has "a punchable face." PJ Media -- who at times pretends to support free speech -- acted as though this was a legitimate lawsuit. Of course, tellingly, even though they said they had a copy of the complaint, reporter Tyler O'Neil did not link to or publish the lawsuit. Perhaps because it's utter and complete garbage. You can read it here.

It was actually filed last August. And here's where we'll go back a bit. Right after the original Sandmann incident, we had noted that infamously silly lawyer Robert Barnes, who has filed multiple trollish lawsuits that have flopped spectacularly, announced that he would represent any of the Covington kids pro bono in filing lawsuits.

Yet, you will note that Sandmann's lawsuits were not filed with Barnes as his lawyer, but Lin Wood and Todd McMurtry. However, the lawsuit that PJ Media was trumpeting, about a comment on Sandmann, was filed by Barnes. So this lead to some head scratching. Had Sandmann retained both lawyers for different cases? The answer is no. Barnes simply filed lawsuits on behalf of the Covington kids as John Does.

It's not even clear that any of the Covington kids are actual clients of his. They may be, but the filing doesn't confirm that this is actually true. And the key Covington kid, Sandmann, has made it absolutely clear that he is not a Barnes' client, and that this lawsuit is obviously bullshit -- because with regards to Aslan's statement, it only references Sandmann (and his allegedly "punchable face") rather than any of the other Covington kids:

If you're unable to see that image, it's Sandmann asking Barnes on Twitter:

... would you like to explain why you’re suing for me without my permission? You’ve blocked my lawyers on twitter and now claim you’re suing over the Reza Aslan tweet? Retract and stop lying to the public.

Yes. Barnes can claim all he wants that he’s filed it on behalf of the covington kids but we both know that isn’t true. Reza’s tweet references only one kid, and i take up a majority of the picture. The article he even linked (now deleted) stated this.

It clearly states it’s about me in the title!

And we're not done with the strangeness yet. The lawsuit itself was filed last August. So why was it making news now? Because Aslan just deleted that tweet. Why did he just delete that tweet now, a year later? Because Barnes only just now served Aslan:

It's unclear why Aslan even bothered to delete the tweet, other than perhaps a kneejerk reaction upon being served. There's nothing defamatory at all in what he said. The lawsuit itself is ridiculous. Beyond Aslan, there are a bunch of other plaintiffs who merely stated various opinions about Sandmann (mostly, rather than the supposed "John Does"). Aslan's co-defendants include Elizabeth Warren, who tweeted "Omaha elder and Vietnam War veteran Nathan Phillips endured hateful taunts with dignity and strength, then urged us all to do better." What's defamatory about that? Barnes' suit claims that she "omitted the true facts." But that's not how defamation works. Other defendants include NY Times reporter Maggie Haberman, ABC News commentator Matthew Dowd, Mother Jones Editor-in-Chief Clara Jeffery, historian Kevin Kruse and more. None of what any of them said was defamatory.

And, again, the entire lawsuit is completely laughable, and it's not even clear who Barnes' clients really are. Yet, when PJ Media (and Barnes) framed it in a way that suggested to people that the lawsuit against Aslan (who supposedly is going to "face the music") was on behalf of Sandmann, the Rorschach test continued, with tons and tons of Sandmann's supporters cheering on a nonsense lawsuit. Indeed, some of the commentators even appear to believe that the CNN settlement was done by Barnes:

It goes on like that for a lot longer, but you get the idea. Notice that basically all of them are doing exactly what Barnes and Sandmann/Wood/McMurtry are suing over: commenting enthusiastically about a story where they only know a small piece of the details, and possibly have the large crux of the situation wrong. Particularly silly is that many of those commenters egging on a completely bogus attack on free speech pretend to be "free speech supporters."

And, of course, then Sandmann's actual lawyer Lin Wood had to go on Twitter and demand that Barnes cease and "correct his prior false statements." It includes what appears to be a threat to take legal action:

Again, here's the text if you can't view the screenshot:

Nicholas Sandmann has many legitimate defamation cases remaining for resolution through litigation. @ToddMcMurtry & I prefer to focus on those matters & not be forced to take legal action against another lawyer but Robert E. Barnes crosses line with his claims about Nicholas.

Barnes has been previously warned to stop publicly suggesting or stating that he represents Nicholas. In response, Barnes “blocked” @ToddMcMurtry & me on Twitter. Barnes apparently cannot control his desire to garner publicity by falsely using Nicholas’ name.

For those who can access @Barnes_Law & support his legal efforts for others, please remind him that he cannot “block” a formal demand letter, a civil complaint, or an ethics complaint. I hope he finally gets the message.

If Barnes does not cease publishing & then correct his prior false statements, Nicholas’ attorneys are fully prepared to take legal action against him. So Barnes can take the easy way out or he will get out the hard way - we will sue him. His choice.

Later, Wood (hilariously) claimed that Barnes is "on the right side of CovCath issue." Which, uh, no.

But, once again, this is all a form of a Rorschach test, and everyone seems to view the story through their own particular prism -- as did all of the initial commenters that Wood/Sandmann/Barnes/whoever are suing. And that's why all of those lawsuits are such bullshit. People reacting to news is not defamation. People not having the full context is not defamation. People expressing their opinion, or explaining how they view things, is not defamation. And the people who have responded to all of the news this week are doing exactly the same thing they seem to think others should be sued over.

So, maybe, just maybe, the best thing here would be stop filing so many bullshit defamation lawsuits, and recognize that free speech sometimes includes speech we don't like, and that includes people not fully understanding the context. But, of course, that's not going to happen. Indeed, Sandmann's other lawyer, Todd McMurtry has instead promised to get back to suing more people:

Sigh.

Filed Under: 1st amendment, cch, covington catholic high school, defamation, elizabeth warren, free speech, l. lin wood, lin wood, nathan phillips, nick sandmann, opinions, resa aslan, robert barnes, rorschach test, todd mcmurtry
Companies: cnn, nbc, washington post

Billionaire Sheldon Adelson Is Trying To Use An Anti-SLAPP Law To Get Out Of Paying Anti-SLAPP Damages And It Ain't Working

from the what-is-it-with-these-billionaires-and-their-slapp-suits dept

Billionaire casino mogul Sheldon Adelson has been known to be a bit litigious at times. Way back in 2015, when there was an effort underway to overturn Nevada's very good anti-SLAPP law, there was speculation that Adelson was behind the effort, due to him losing a case thanks to that law. It turns out that the remnants of that particular case are still going, despite dating all the way back to events in 2012. The issue involves the National Jewish Democratic Council posting a link concerning operations in Adelson's Macau casinos. The case went through a variety of different courts and was dismissed under Nevada's anti-SLAPP laws.

But a variation on that case continued because when NJDC then sought compensatory and punitive damages for the original SLAPP suit, Adelson tried to flip the script and argued (among many other things) that the lawsuit against him for such damages was, itself, a SLAPP suit. Earlier this fall, the judge said that's not how any of this works.

Adelson next moves for dismissal under Nevada’s anti-SLAPP law. He puckishly avers that his initial defamation suit — even though it was dismissed as a SLAPP — was itself protected conduct under the anti-SLAPP statute. He therefore argues that he is entitled to dismissal of this damages suit because it, too, qualifies as a SLAPP.

[....]

Under Adelson’s reading of these two provisions, any anti-SLAPP damages action can itself qualify as a SLAPP if the previously dismissed SLAPP was a “good faith communication”— i.e., if the previous suit was not “objectively baseless.” (Dkt. No. 30 at 6.) This interpretation of the statute, however, creates an oddity. It would be peculiar, to say the least, if Nevada wrote its anti-SLAPP statute to shield litigants who file SLAPPs from liability in a subsequent anti-SLAPP damages action. The twin aims of the statute are to protect defendants from litigation costs and to deter plaintiffs from bringing SLAPP claims. John, 219 P.3d at 1281. Those compensatory and deterrent purposes would be substantially undermined if the statute’s damages provision applied only to the subset of SLAPP lawsuits that could be demonstrated to be objectively unreasonable or brought in subjective bad faith.

The court still explores this issue and then notes... sorry, Sheldon, that ain't gonna fly:

Adelson has not even attempted to meet his burden of production. For example, in order to establish that the communication was made in “good faith,” the movant must provide evidence that the communication was “truthful or . . . made without knowledge of its falsehood.” ... But Adelson has not provided any evidence whatsoever— “written or oral, by witnesses or affidavits,” ... — that the allegations in his initial lawsuit were truthful or brought without knowledge of their falsehood. Thus, Adelson has failed to demonstrate that his initial lawsuit was a “good faith” communication. Because he has failed this threshold showing, Adelson’s special motion to dismiss is denied.

Adelson asked the court to reconsider this point, and a few days ago, the court again told Adelson that this is not how any of this works. Adelson tried to argue that he was held to a different standard when decrying this as a SLAPP suit than the folks on the other wide were held to when they called his original lawsuit a SLAPP suit. Part of the issue was that Nevada's anti-SLAPP law changed a bit between the first lawsuit and the latest one:

Adelson descries an inconsistency. But these holdings are easily reconciled. At the time of Adelson v. Harris, the Nevada statute provided only that the special motion to dismiss was to be “[t]reat[ed] . . . as a motion for summary judgment.”... Accordingly, the Court in Adelson v. Harris properly applied the summary-judgment standard to conclude that Adelson “fail[ed] to demonstrate a genuine issue of material fact on the issue of good faith.”... In 2013, however, the Nevada legislature “removed the language likening an anti-SLAPP motion to dismiss to a motion for summary judgment and set forth a specific burden-shifting framework.”... Under that framework, it is now the movant’s initial burden to “establish[], by a preponderance of the evidence, that the claim is based upon a good faith communication.”... In this case, Adelson submitted no evidence whatsoever on the issue. Accordingly, Adelson failed to meet his burden, as required by the post-2013 statute, and his anti-SLAPP motion was properly denied.

In a footnote, the court also mocks Adelson trying to add "new facts" that were not brought up originally, and also points out that even if Adelson had met the burden described above, it still wouldn't have resulted in the case being dismissed, since the Plaintiffs had a legitimate claim for damages according to Nevada's anti-SLAPP law:

Further, as Plaintiffs correctly note, even if Adelson were deemed to have met his initial burden, he would still be disentitled to dismissal. The burden would then shift to Plaintiffs to demonstrate “a probability of prevailing on the claim.”... And because the sole precondition to prevailing on the claim for compensatory damages is the district court’s grant of a special motion to dismiss, Plaintiffs would be able to do so.

While I doubt this case is anywhere close to over, despite all these years, it's looking increasingly like Adelson will, in fact, have to pay up.

Filed Under: anti-slapp, damages, defamation, free speech, nevada, sheldon adelson

Robyn Openshaw, 'The Green Smoothie Girl,' Threatening SLAPP Suits Over Mediocre Reviews

from the don't-do-this dept

Various health fads come and go. One particular one that I guess has been around for a bit is the idea of drinking "green smoothies." This was made popular by Robyn Openshaw, who is called "The Green Smoothie Girl" and has written a bunch of books, all around her views on approaches to losing weight and health, including the aforementioned green smoothies, and various "detox" plans. There's also something about "vibrations," but that's about as deep into the weeds as I was going to get on her views on staying healthy.

I have no opinion on whether or not any of that stuff works or is good for you (do your own research!) but it does appear that the Green Smoothie Girl, Robyn Openshaw, is not at all happy about negative reviews. People who merely posted on Facebook saying that Openshaw's claims were "unproven" among other things, started receiving threatening messages demanding that these mildly negative reviews be taken down or they would face lawsuits:

Someone at least claiming to work for Robyn was contacting people with ridiculously baseless threats. The threats are so ridiculous as to be laughable:

Sarah Jane, my employer is Robyn Openshaw, Influence Brands, and GreenSmoothieGirl.

You have until midnight tonight, to remove your negative reviews on her various companies. We have screenshotted your slander and cyberbullying and will engage our attorneys and PI's to send you a FORMAL C&D, should you not wish to comply, as well as file a lawsuit against you which will include damages to her....

[....]

... as we work together to gather information and file complaints, as well as court costs, in our state (not yours.)

As soon as your name is in the lawsuit for damages, slander, and cyberbullying with charges in all applicable case law, we will hold you accountable for those charges as lon gas it takes. You can probably infer that this will be very expensive.

Most of that is word salad, with a few nonsense legal terms tossed in for shits and giggles. But, it's a nice touch to flat out admit in the threat to file a SLAPP suit that you're doing it because it will "be very expensive." Good to admit that that's your intention upfront, right?

I would imagine this will end up in the media as well.

You don't say...

Should you choose to delete all your false reviews, we will not subpoena Facebook for all your information and pursue legal action against you. We will just watch your actions in case you do any more, and at that point we will take ALL of the evidence to the authorities.

The authorities? I love legal threats that don't know the difference between civil complaints and criminal charges, but, hey. It all sounds vaguely about the law.

But wait, there's more:

There are some true classics in here.

I highly recomment you take quick action to remove the negative reviews, as they legally qualify under many laws/statutes as slander and bullying, and the law holds you accountable for the financial and other losses businesses incur due to your actions--even the time we employees spend having to document your actions and pursue you, will be collected in a court judgment against you.

That review must have been pretty bad, right? Nope:

Since then First Amendment lawyer Ari Cohn has been cataloging more and more insanity around these threats. We've heard of some unique interpretations of Section 230 in the past, but this might be the craziest:

That includes an image first of someone asking for info on a commenter be sent to Openshaw so "he can be served legally and peacefully" and then shows Openshaw stating the following, which appears to likely be her mangling how Section 230 works:

Lannette Syck also attorney confirms I am not liable for what I say here. This is my page.

They are the ones out of bounds. They come on my page and the pages of my business.

Um... what?

And, of course, it quickly came out that they were sending these kinds of messages to others who wrote negative reviews as well. And, as we all know by now, you're not doing vexatious legal threats correctly if you don't eventually get around to doing the RICO. And I think we can say mission accomplished on that one:

That's a message, direct from Openshaw's account (rather than an "employee") saying:

She wasnt a commenter. She committed felony tortious interference and RICO.

let her know it's slander and tortious interference when I can prove she's not a customer or follower and she was told to go attack my page by pharma mafia troll.

Clueless trolls don't know c&d is a warning.

Should they want to remove the fraud review before they get served.

They can disregard, their choice, and get served.

All the fake reviews posted within 48 hours of supertroll BKM telling others to attack my page, plus tagging her troll friends right here on my page to go post fake reviews.

We have all the screen shots.

Felony convictions are a matter of public record and can keep you from getting a job or a loan.

Felony convictions? For posting a mildly negative review? That's not how any of this works.

Also, she seems to think that violating Facebook's terms of service is the same as violating the law. And cyber consultants something something something.

That's another message from Robyn's own account:

[Redacted], would you like to take your troll posts down--on your page, and the comment on mine--or would you prefer my cyber security specialist serve you at your work with my attorneys' C&D and lawsuit for defamation and violating Facebook's bullying policies, and you have violated both--which are here:

* descriptions of photos that degrade someone's appearance or character.
* targeting someone with threats

Your choice. Let me know by midnight tonight, because I have some legal actions to initiate tomorrow. If there is a cyber bullying lawsuit, we will seek all my legal and cyber consultant fees.

Sounds credible!

And apparently, RICO isn't enough, because eventually, you need to take it up a notch. To terrorism.

That appeared to be a bit of an "airing of grievances" by Robyn with those who left negative comments, and includes this whopper:

My attorney will subpoena Facebook Monday so I can sue her for damages and engage Facebook to find her actual identity and any other fake profiles where she spreads hate speech and terrorism.

And there's more. This time, a message from "Drew Millz."

Well, the c&d is obviously informal, as it said, from a non attorney (who is talking to attorneys as she vets them for who is most qualified to sue the rolls doing damage to her business, harassing, and other cyber crimes).

And when the suits against those doing damage to her business are filed, they will of course all be based on actual law.

Well, phew. Actual law. Like the 1st Amendment? Might want to look that one up before suing over speech.

All of you can discuss at will but if you do damage to Ms Openshaw and her publishers' properties or slander or harass you will face legal consequences.

Some will be served at home and some at work so be mindful if you are the type of person to harm strangers' IP and web properties.

Some of you have done it to many people and we are collecting that evidence to make this a larger order and TRO than just Ms Openshaw.

But no one sending the INFORMAL c&d claimed to be an attorney.

The informal c&d stated these options are being considered.

The legal team about to represent Ms Openshaw in these actions feel there is RICO justification for two of the supertrolls.

RICO justification? Informal C&Ds? This is just so much fun, I might have to go drink an orange smoothie to celebrate. Anyway, the informal cease and desist letters then turned into "draft" C&D letters, because that makes no sense at all. Also, they promise to drag the people they're threatening to Utah to defend this, once again effectively admitting that this is vexatious.

There's also a separate Twitter account that first claimed Openshaw was already sending subpoenas and also looking for a lawyer (i.e., sending subpoenas before having a lawyer?!?):

Robyn Openshaw, public figure THE #1 health site , is seeking a top attorney that specializes in cyber bullying. She has been very public that she is going to sue a number of the trolls & is already subpoenaing their info and says it will ALL be in public court of law record! thx

And when more knowledgeable people pointed out how silly this claimed, the responses got worse:

She didn’t have to get any of the information subpoenaed. Asking the universe will provide. This is going to be an epic case that will set a precedence and she said these trolls are going to pay. With more than money.

Asking the universe will provide.

If her knowledge of health and wellness is at the same level as her knowledge of the law, well, I'd maybe stay away from green smoothies.

The threats on Facebook have continued -- with the latest coming from a brand new profile under the name "Jeff Johnson" claiming that Openshaw doesn't want to harm anyone's right to free speech -- but somehow calling out her bogus threats is an attack on her free speech. Because, of course:

That one also includes some fun insults about "under employed lawyers" and warnings about more lawsuits.

I get that people not fawning over you may feel bad. And that negative reviews may hurt. But hitting back with bogus legal threats, then doubling down with even more threats that are in no way reflective of the actual law, is no way to go through life.

Filed Under: cyberbullying, defamation, free speech, green smoothie girl, reviews, robyn openshaw, slapp, threats

The Subtweet Defense Wins: Elon Musk Cleared In Defamation Case

from the free-speech-matters dept

A little over a year ago when cave diver Vern Unsworth sued Elon Musk for defamation, we noted that (unlike many defamation cases), it did not appear to be an out-and-out SLAPP case. That said, we noted that many of the claims in the lawsuit did not look to be about defamatory speech at all, and that would make much of the lawsuit an uphill battle. The part that appeared to be the most problematic for Musk, however, was the emails he had sent to Buzzfeed reporter Ryan Mac after the initial tweets, in which he made more detailed accusations, including what appeared to be factual statements implying deeper knowledge about Unsworth.

However, as the case played out, Unsworth dropped any defamation claims regarding the emails. It appears that Musk had hit back on those claims by suggesting that if they were defamatory, they were actually Buzzfeed defaming Unsworth, since it was Buzzfeed that had published Musk's quotes. Perhaps to avoid getting bogged down in that fight, Unsworth's legal team chose to focus just on the tweets, and not the email -- even though the email seemed to go closest to the line (if not over) of defamation. Musk's legal team still then asked for the Buzzfeed emails evidence to be excluded from any damages calculation, which the judge allowed. In the end, the focus was just on his tweets, and that allowed for a courtroom explanation of how insults fly freely on Twitter, suggesting that most people engaged on Twitter know better than to take random accusations and insults as factual statements.

In the end, the jury sided with Musk with the reasoning more or less being the "subtweet defense." Because Musk didn't directly name Unsworth in his tweets, they couldn't reach the high bar of defamation:

One juror told BuzzFeed News the decision came down to the notion that a reasonable person could not read Musk's "pedo guy" tweet and determine that it was associated with Unsworth. “The judge laid out five points for defamation as soon as we got to point two, which was about being acquainted [with the defamed person], we decided,” said Carl Shusterman, a Los Angeles attorney who served on the jury. “The people that read Musk's tweet wouldn’t have known who he was talking about.”

That... is actually a bit surprising. Because it was pretty clear who Musk was referring to with those tweets (and the fact that he doubled down later confirmed that). Still, on the whole this was a good thing for free speech and the 1st Amendment. Insults do fly pretty freely on Twitter, and it's good to see a jury recognizing that you shouldn't automatically accept any random insult as a factual statement about someone. Indeed, it seems reasonable to think that few, if any, people actually believed Musk's statements about Unsworth were true -- and rather assumed that Musk was just mouthing off without much self-control.

Filed Under: 1st amendment, defamation, elon musk, free speech, rhetorical hyperbole, ryan mac, subtweet, vernon unsworth

Devin Nunes Follows Through And Sues CNN In Laughably Dumb SLAPP Suit

from the that's-not-how-any-of-this-works dept

As he promised last week, Rep. Devin Nunes has now sued CNN for defamation for accurately reporting what the indicted Lev Parnas's lawyers had told them about Devin Nunes. Rather than state court in Virginia, this time, Nunes' lawyer, Steven Biss filed the case in the big boy federal court in Virginia. This complaint may be the most laughable one yet of Nunes' various SLAPP suits, and I should remind you that one of them involves him suing a cow.

The timing of this suit was a bit inauspicious, given that it was filed at around the same time as the House Intelligence Committee released its Impeachment Inquiry Report, which shows multiple phone records showing that Devin Nunes and Lev Parnas were in phone contact with each other -- which is the very heart of the CNN story. From the report:

That appears to show Parnas and Nunes playing a bit of phone tag before finally talking for nearly 10 minutes.

After the report came out, Nunes went on Fox News to says he didn't recall ever talking to Parnas and that he hadn't checked his records.

“Did you ever talk to this guy Les Parnas or whatever his name is?” Hannity asked, mispronouncing the Giuliani henchman’s name while acting like he barely knows who Parnas is.

“You know, it’s possible,” Nunes replied. “I haven’t gone through my phone records. I don’t really recall that name.”

“I remember the name now because he has been indicted,” the conservative congressman added. “Why would CNN rely on somebody like this? I will go back and check my records, but it seems very unlikely I will be taking calls from random people.”

And yet, in the complaint, Nunes makes explicit claims about when he was not in contact with Parnas, suggesting that he has checked his records. The complaint is oddly specific in the timing:

I'm sorry, but if CNN just got the date wrong for when Nunes and Parnas spoke, that's not even anywhere in the vicinity of defamation. The lawsuit says that they weren't in contact in December, but the phone records show (at the very least) that they were in contact in April. While Biss's various SLAPP filings have all been fairly performative, this one takes the performance to new and ridiculous levels. It seems likely that the entire point of this lawsuit is to whip up something of a frenzy among people who insist that CNN is "fake news." No serious lawsuit would start this way:

CNN is the mother of fake news. It is the least trusted name. CNN is eroding the fabric of America, proselytizing, sowing distrust and disharmony. It must be held accountable.

But, this one does. Much of the complaint focuses on the argument that Parnas is not a trustworthy source. That may be true, but then it would seem if Nunes had a claim against anyone, it would be Parnas, not CNN. The complaint is 47 pages, but a significant percentage of it is taken up by giant screenshot of tweets, rather than actual legal arguments. And, beyond the defamation ("per se" because people like to say "defamation per se" in the belief that it means "obvious defamation" even though it does not), it also includes a "common law conspiracy" claim based on more nonsense.

With this lawsuit, in which he demands $435 million, Nunes' total claims in his various SLAPP suits is rapidly approaching a billion dollars.

Meanwhile, recall that last week, Nunes promised Hannity that CNN would "run" from this lawsuit and he would chase them down. I'm guessing that the opposite is going to happen, as CNN will likely "run" towards the courthouse to try to get to discovery as fast as possible:

Meanwhile, with all of these lawsuits, more and more people are starting to ask just who is paying for all of these lawsuits. Nunes has definitely decided that going on the offensive in filing multiple SLAPP suits against journalists and critics (even satirical cows) is a worthwhile strategy, but it's difficult to see an end game here that makes any sense at all.

Filed Under: anti-slapp, conspiracy, defamation, devin nunes, lev parnas, slapp, steven biss, virginia
Companies: cnn