After nearly four years, convicted bomber and perjurer Brett Kimberlin has lost his lawsuit against your favorite blogger (that’s me!). Federal District Judge George Hazel today issued an opinion granting me summary judgment in Kimberlin’s frivolous and censorious lawsuit against me.
It is a total and complete victory. There will be no trial. I will pay nothing. I will take down no blog posts about Kimberlin. The lawsuit is simply over. (Of course, he’ll appeal. He always appeals.)
This should have been a simple anti-SLAPP case. Should have. Wasn't. (Part of it is Maryland's weak take on anti-SLAPP.) It took four years to resolve and tons of pro bono hours. Kimberlin claimed he had been defamed by Frey's post, which was based on four news sources and covered his conviction for bombing and his rise to dubious fame as Dan Quayle's pot dealer (back when Quayle was still VP/relevant).
Kimberlin has a long history of abusive, vexatious lawsuits -- all of them filed with the intent of shutting down criticism. His defamation claim was just the tip of iceberg. In his legal threat (all the way back in 2010), Kimberlin claimed a variety of injuries from Frey's post, accusing him of cyberstalking, cyberbullying, and "interference with business."
I have filed over a hundred lawsuits and another one will be no sweat for me. On the other hand, it will cost you a lot of time and money and for what.
So… basically announcing up front he sued people to harass them into silence. There's a long write-up from a couple of years back at The Daily Beast that delves into Kimberlin's litigious (and criminal) history -- one that includes filing a RICO suit against political commentators and his alleged involvement in the SWATting of defendant Patrick Frey.
It's all over now but the appeals process. Free speech was ably defended by two great lawyers working for free. (You'll probably recognize Ron Coleman as the counsel in the recent Supreme Court Tam decision, which declared the trademark's board refusal to recognize "disparaging" marks was a violation of the First Amendment.)
Even though Frey's post is upbeat, this was still a four-year bogus, censorial legal battle that cost the defendant (and his reps) time and money to defend against. Despite Kimberlin pretty much admitting he files lawsuits to harass people, no court has sanctioned him for this behavior. This court doesn't either, but it does allow Patrick Frey to dismiss the lawsuit and leave all his criticism of Kimberlin intact.
What's problematic about the long-running suit is the behavior of parties on both sides. Kimberlin has made it clear he wants to intimidate people into silence. His critics want to attribute everything from SWATtings to pedophilia to Kimberlin with little real evidence*, even though a mere factual rehashing of his past legal troubles would be damning enough. But, based on his responses to all of this, Kimberlin appears to have little interest in even factual rehashings staying alive on the web. He appears to be convinced that there's a massive conservative conspiracy trying to destroy his election-related non-profit. But rather than use his position as a minor liberal icon and the open publishing platform that is the internet to repudiate assertions, Kimberlin files lawsuits.
*UPDATE: Aaron Walker -- another critic Kimberlin sued -- wrote to me to point out the accusations of pedophilia are based on Kimberlin's and his ex-wife's own statements. He also wanted to point out that, while many have written about the SWATtings that followed criticism of Kimberlin, no one (that he's aware of) has tried to directly attribute this to Kimberlin. Details on the pedophilia claims can be found over at Popehat.
His suits are little more than a form of harassment, albeit one that can't possibly be ignored by burying comments, hitting "mute/block" buttons on social media, or simply refusing to engage in arguments with him. A lawsuit must be responded to, and those who are sued are expected to fund their own defenses even when the accusations are clearly bogus. This decision is a small win for free speech and yet another cautionary tale about the abuse of the judicial system to punish bloggers and pundits for their critical words.
This lawsuit is yet another example of what it's so necessary to push for better anti-SLAPP laws, both at the federal level and at the state level. This kind of harassment would not have wasted nearly as much time and resources if there were a reasonable anti-SLAPP law protecting Frey from having to go through such a long and arduous process. Maryland's legislature, in particular, should be aware that it has failed to protect free speech by having a woefully limited anti-SLAPP law that allows cases like this to drag on and on, rather than adopting anti-SLAPP laws similar to those found in other states (like California and Texas) that actually protect free speech by ending these lawsuits much earlier in the process.
It only took a month for a court to dump a bogus defamation suit brought by someone who sued one person for things someone else said. Jim Myers wrote an article for The Tennessean discussing changes made to a culinary arts program. The former director of the program -- Thomas Loftis -- didn't like characterizations made in the article. For reasons known only to him and his lawyers, Loftis sued the new director of the culinary arts program, rather than the columnist or the paper that published his article.
In his verbal ruling from the bench dismissing the lawsuit against Mr. Rayburn, Judge Jones noted that under Tennessee law, an allegedly defamatory statement must “be read as a person of ordinary intelligence would understand it in light of the surrounding circumstances.” Judge Jones also observed that whether a statement is capable of being understood as defamatory “is a question of law to be determined by the court.” Finding that Mr. Loftis’s Complaint could not satisfy these basic standards even at the motion to dismiss stage, Judge Jones dismissed Mr. Loftis’s lawsuit with prejudice and assessed him the costs of the litigation.
The only thing going for Loftis is the swift dismissal, which means he won't be out much in terms of legal fees. Whatever Loftis did end up paying for his own counsel can hardly be considered money well-spent. His lawsuit seemed to be motivated out of professional jealousy, rather than any sincere belief his reputation had been harmed. But that sort of personal issue shouldn't be allowed to make its way into court:
The legal system should not be used to litigate hurt feelings or to deter people from speaking to the media.
Despite multiple rewrites, Loftis' lawsuit never managed to tie the defendant -- the new arts director the Tennessean columnist considered to be a huge improvement over his predecessor -- to any actual defamation, much less any disparaging words that actually came out of the new culinary director's mouth.
The reply motion [PDF] by Rayburn is worth a read, simply because it hammers home just how objectively terrible this lawsuit is. Fortunately, the plaintiff wasn't given much of a chance to annoy the target of his bogus suit and certainly won't be leaving him in a worse financial situation.
Oh, James Woods. He has now "settled" the ridiculous lawsuit he filed against someone mocking him on Twitter... but is still fighting a fairly similar lawsuit that was filed against him -- complaining that it's an attack on his free speech rights.
If you don't recall, the rather opinionated actor sued a trollish Twitter user who went by the name Abe List, after Abe referred to Woods as a "cocaine addict" in a clearly hyperbolic tweet. As the case progressed, "Abe List" died unexpectedly, leading to Woods obnoxiously gloating on Twitter that List had "dropped" his anti-SLAPP appeal, and when people pointed out it was only because List had died, Woods demonstrated what kind of character he is by cheering on the fact that someone died.
Nice guy, huh?
And, of course, that leaves out that Woods had a history of tweeting similarly hyperbolic statements about others who he disagreed with:
So, Woods was already looking fairly hypocritical here, but as you'll see soon, that level of hypocrisy is becoming more pronounced.
Either way, after "List" died, you might think that Woods would just drop the case, but given his clear animosity (see tweet above) towards a guy making a silly statement on Twitter, he kept the case going in order to unmask the real identity of "List" and to potentially pursue the case against his estate. As first revealed by Eriq Gardner at THREsq, Woods has finally agreed to settle the case, but at least part of the terms of the settlement is that he got attorney Ken "Popehat" White (who you probably know if you're reading Techdirt, and who has represented us at times) to write a silly letter stating what basically everyone in the world already knew: specifically that when Abe List referred to Woods as a "cocaine addict" it wasn't meant to be taken literally:
From attorney Kenneth White, the letter states, "On behalf of my client — the defendant referred to as 'Abe List' in the lawsuit filed by James Woods — and my client's surviving family, I acknowledge that they are not aware of any facts to suggest that Mr. Woods has ever been a cocaine addict or used any other drugs."
Frankly, this feels more like an attempt to try to humiliate Ken (which, uh, generally isn't a good idea), but the end result just makes Woods look ridiculously and almost comically petty.
Oh, and back to the hypocrisy thing. Earlier this year, we also noted, with some amount of irony, that Woods was now on the receiving end of a very similar lawsuit. A woman, Portia Boulger, sued Woods for calling her a "Nazi" in a tweet that was actually a case of mistaken identity. As we pointed out, unlike some people, we can remain true to our principles, and we believe that Boulger's lawsuit against Woods is just as misguided and just as much as a SLAPP suit as Woods' lawsuit was against List.
Either way, in that case, Woods' lawyers filed a motion for judgment on the pleadings last month, which makes a bunch of statements that sound a little odd, considering they're on behalf of someone who was (at the time) still engaged in litigation against someone who jokingly called him a "cocaine addict" on Twitter.
This case is simply an unsuccessful attempt by Plaintiff to quell the free speech rights of
Mr. Woods, a conservative actor. Indeed, Plaintiff's claims for defamation and false light/invasion
of privacy both fail as a matter of law. First, Plaintiffs claim for defamation fails as a matter of
law because Mr. Woods' allegedly defamatory question is not a statement of fact. Nor would a
reasonable reader interpret Mr. Woods' question--seeking clarification--as inferring any factual
content. Likewise, Plaintiff's false light/invasion of privacy claim fails as a matter of law because
no misrepresentation regarding Plaintiff's character, history, activities or beliefs is present in Mr.
Woods' tweets, much less a misrepresentation that would warrant a reasonable person, in
Plaintiff's position, to take the serious offense required to succeed on a false light/invasion of
privacy claim.
That's... an interesting way of saying what happened. As a reminder, here's how THResq described the tweet that Woods sent:
This all started in March 2016, after the Chicago Tribune posted a campaign rally photo of a woman who was wearing a Trump T-shirt and giving a Nazi salute — the well-known 'Heil Hitler' salute with her right hand raised straight up — and several Twitter users misidentified the woman in the picture as Boulger, according to the complaint. Woods tweeted the photo from his verified account and wrote, “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?”
So, yeah, his tweet was a "question" but a "reasonable person" would be unlikely to think that Woods was "seeking clarification." Rather most reasonable persons would likely believe that Woods was implying strongly that Boulger, a Bernie Sanders supporter, had gone to a Trump rally and pretended to be a Nazi supporter of Trump (which she had not).
But, really, it's the "reasonable person" line that's the kicker here. Because that same "reasonable person" looking at Abe List's tweets would similarly have been just as unlikely "to take serious offense" to that tweet. And, yes, there's something fairly ridiculous for Woods to be whining that someone is trying to "quell" his free speech (even if true) when he was doing something quite similar at the very same time.
Later in the motion, Woods' lawyers (properly) point out that "the general context of the statement" and the "broader context in which the statement appears" are a critical element in determining defamation -- which, again, seems silly given that same test, applied to the guy Woods' sued would likely have worked very much against Woods' defamation case.
Finally the truly amazing argument, given Woods' lawsuit against List. I'll just post the paragraph here:
Likewise, Mr. Woods' allegedly defamatory question appeared on his personal Twitter
account, in the midst of a highly-contested and widely-covered presidential political campaign.... A personal social media account, such as an individual's Twitter account, cannot
reasonably be interpreted as a forum for fact reporting.... Rather, such
a context is akin to a forum or editorial section of a newspaper where a reader would expect to see
statements of opinion.... Additionally,
Twitter, a social media platform powered by individual user accounts, can be described even more
so as a "well established genre of opinionated speech as it is commonly known the average
Twitter user is not "normally engaged in the business of factual reporting or news dissemination."
What the actual fuck, James? I mean, I agree. That paragraph is 100% accurate. But it sure seems... massively hypocritical to make that argument while suing someone for their similarly silly tweet about you.
Either way, if you're going to go around suing people for trollish tweets, perhaps don't go around posting trollish tweets yourself. And, if you do and even continue to pursue them after their death, don't then argue in a different lawsuit a bunch of points that totally undermine your own lawsuit. I mean, unless you want to be called out as a raging hypocrite.
Yesterday we wrote about coal company Murray Energy and its CEO, Bob Murray, actually following through and suing John Oliver -- something that Murray's lawyers had threatened to do when Oliver and his team had reached out to Murray for a piece Oliver was doing on coal. The result of being threatened was that Oliver spent nearly half of the 24 minute segment on Murray, carefully detailing some of Murray's history and positions. If you missed it, watch it again here:
Anyway, when we wrote about the case yesterday, we noted that we had to do it based solely on the reporting of the Daily Beast, as they broke the story and -- for reasons I still don't understand -- refused to post the actual complaint. However, now we've obtained the full complaint and can dig in on how incredibly silly it is. It appears to be a quintessential SLAPP lawsuit, where the entire point is not to bring a legitimate cause of action, but to chill free speech that criticizes Bob Murray. As Ken "Popehat" White notes, it's "lawsuit as theater" and "an unapologetic political screed" -- that is, apparently designed to rile people up, rather than to present a reasonable legal argument.
Let's dig in. It certainly starts out on a high note with the rhetoric:
On June 18, 2017, Defendants executed a meticulously planned attempt to assassinate the character and reputation of Mr. Robert E. Murray and his companies, including Murray Energy Corporation and those in West Virginia, on a world stage. They did so for their personal financial gain by knowingly broadcasting false, injurious, and defamatory comments to HBO's approximately 134 million paying subscribers, while also knowing that their malicious broadcast would be repeated to countless more individuals through various outlets (including other media owned by certain Defendants.
I've now watched the video four times and I fail to see anywhere that it goes after "those in West Virginia." Indeed, it's actually quite sympathetic to the plight of miners and former miners in the area who have run into problems or lost their jobs. The only people that it holds out as problematic... are the CEOs of various mining companies and the President of the United States. And even if Murray's reputation is mocked in the piece, as long as there aren't false statements of fact, presented with knowledge of their falsity or reckless disregard for the truth, it's all perfectly legal. Making Bob Murray look foolish or mean isn't illegal, as long as it's based on statements of opinion or those backed up with evidence.
But, Murray's lawyers appear to suggest that because Murray is in poor health, that somehow makes this entirely different. It's... an odd sympathy play in a lawsuit:
They did this to a man who needs a lung transplant, a man who does not expect to live to see the end of this case. They attacked him in a forum in which he had no opportunity to defend himself, and so he has brought this suit to try to set the record straight.
The health stuff is pure "theater" as Ken noted. The "no opportunity to defend" himself is weird, because I thought Republicans like Murray were completely 100% against a "fairness doctrine" that required equal time for political opponents (which is the right position to take). But, even beyond that, the idea that Murray had no choice but to file a lawsuit to defend himself or to set the record straight is laughable. As Oliver's report clearly showed, Murray is regularly on TV and could easily get a message onto the various TV news programs that have him on as a guest. And, either way (again) that's got absolutely nothing to do with defamation law and how it works.
The sob story continues:
Worse yet, Defendants employed techniques designed solely to harass and embarrass Plaintiffs, including Mr. Murray, a seventy-seven year old citizen in ill health and dependent on an oxygen tank for survival, who, despite the foregoing, continuously devotes his life, including by working seven days each week, to save the jobs and better the lives of the thousands of coal miners that he employs in West Virginia and elsewhere. Defendants childishly demeaned and disparaged Mr. Murray and his companies, made jokes about Mr. Murray's age, health, and appearance, made light of a tragic mining incident, broadcasted false statements, and incited television and internet viewers to do harm to Mr. Murray and his companies, all before a worldwide audience--including the thousands of people that work for and do business with Mr. Murray and his companies in West Virginia. In fact, medical doctors have informed Mr. Murray that he should stop working because the stress is shortening his life. Mr. Murray must, however, continue working because of all those individuals who rely on him. But nothing has ever stressed him more than this vicious and untruthful attack.
Bravo! Quite a performance there. This seems clearly targeted towards pulling at the heartstrings of folks in West Virginia, but, again seems to have little to nothing to do with the actual law. Again, Murray's health is not an issue here -- and if this has caused him more stress than anything else in his life ever, then Mr. Murray has led an incredibly low stress life. Is he really saying that a late night British comedian on a premium channel has caused him more stress than the time that one of his mines collapsed and killed a group of his employees? If so... that's... weird. Separately, making fun of someone's age, health or appearance (and I don't recall any actual jokes about his age or health...) is, again, not defamation. It's sort of protected by the First Amendment. The only thing that could be defamation is "false statements" and notice how the lawsuit seems to be playing up everything else, rather than that?
When you start to dig into the actual meat of the lawsuit... there's almost nothing there. It complains that Oliver's staff may have contacted Murray Energy under false pretenses, saying that they "were under the false impression that Defendants would use this supplied information to accurately and responsibly broadcast the facts and circumstances regarding the topics," but that, again, makes little difference to the question of defamation. Just because a news company doesn't present your version of the events exactly as you want it presented, doesn't make it defamation. Not by any stretch of the imagination.
The lawsuit does provide plenty of additional bits of information concerning the Crandall Canyon mine collapse and how Murray reacted to it. And all of that is perhaps interesting, but again, none of it requires Oliver to portray the story in the way that Murray Energy likes. And, again, if you go back and review the actual story that Oliver did, he does not contradict any of the factual claims laid out by Murray's lawyers. Rather, he highlights the stories of miners or families of miners who were impacted by the collapse and were not happy with how Murray responded. The crux of the argument on Murray's side is "but we tried real hard." And, great. But highlighting how others felt about the effort and actions is not defamation. It's presenting other viewpoints.
The only possible "factual" point where there could be some controversy is over whether or not the mine collapsed due to an earthquake, as Murray has insisted since the day of the collapse itself. Oliver pointed to the US government report on the incident put together by the Mine Safety and Health Administration (MSHA), a part of the US Department of Labor. That report concluded: "The August 6 catastrophic accident was the result of an inadequate mine design," and, on top of it: "MSHA found no evidence that a naturally occurring earthquake caused the collapse on August 6."
In the lawsuit, Murray's evidence that this is false seems to focus on semantics and making fun of the MSHA inspectors (you know they're making fun of them because it puts "experts" in quote marks):
The Federal Mine Safety and Health Administration's report regarding the collapse (the "MSHA Report") contained multiple concessions that a sudden change in stresses due to a "slip along a joint" or "joint slip in the overburden," which is very similar to the United States Geological Survey's definition of an "earthquake" (i.e., "both sudden slip on a fault, and the resulting ground shaking and radiated seismic energy caused by the slip"), "could have been a factor in triggering the collapse" and was one of the "likely candidates" for triggering the collapse, but MSHA and its "experts" chose not to analyze the seismic data of the triggering event and instead focused on the secondary collapse, which was a disservice to the lost miners, their families and the truth.
Studies have shown that the Mine collapse was a seismic event originating in the Joe's Valley Fault Zone. More specifically, these studies indicated that the triggering event for the seismic disturbance, which was not consistent with normal mining-induced seismicity resulting in the collapse, occurred on a subsidiary fault parallel to the Joe's Valley Fault. This is a more technical manner of stating that the collapse was caused by what many would characterize as an earthquake.
So that first paragraph is nonsense. It's not "actual malice" if you have clear evidence to back up your statements, and the official MSHA report sure seems like pretty good evidence to support that Oliver and his team believed what Oliver said was true. The fact that Murray doesn't like the MSHA "experts" doesn't magically make using their report "defamation." Second, notice that all of the talk about the earthquake comes with qualifying language: "very similar to... definition of an 'earthquake'", "what many would characterize as an earthquake." Even beyond the other stuff, this further undermines any defamation claim over the one sort of "fact" the lawsuit focuses on: if there's a dispute over whether or not what happened was truly an earthquake, then choosing a side in that dispute is not defamation. It's an opinion. That's protected.
Mr. Murray and his companies warned Defendants to cease and desist from a broadcast of defamatory comments or any misguided attempt at humor regarding the tragic mine collapse and loss of life, which Plaintiffs believed would be cruel and heartless.
So, uh, earlier in the complaint, Murray's lawyers argue that they believed that when Oliver and his team reached out they were ordinary journalists, claiming that they reached out "under the guise of responsible and ethical journalism." And, yet, here they admit that that they knew that he's a comedian who regularly satirizes people and companies, thus they didn't want to see a humorous take on the situation. Also, there's no law against "misguided" humor (and, uh, many folks found the humor to be quite on target). Finally, there is nothing in defamation law about it being illegal for you to have "cruel and heartless" comedy. And, in actuality, Oliver's piece was neither cruel, nor heartless. Many would likely argue that it was incredibly sympathetic and empathetic to the plight of struggling coal miners, who are facing a radical transformation of their industry.
The complaint, once again, then hits on the idea that because Oliver's story didn't represent the collapse the way Bob Murray wanted it portrayed, that's defamation. That's... not how it works. It's not how any of this works.
In the ensuing broadcast, Defendants deliberately omitted the facts Plaintiffs provided regarding the Crandall Canyon Mine incident. There was no mention of the efforts Mr. Murray personally made to save the trapped miners. Defendant Oliver did not tell his audience that Mr. Murray arrived at the Crandall Canyon Mine in Utah within four hours of the collapse. Nor did Defendant Oliver say anything about the twenty-eight straight days Mr. Murray then spent on that mountain overseeing the massive rescue efforts, and administering to the families. Nor did he mention that Mr. Murray personally led the rescue efforts when rescue workers were injured and killed in a subsequent event ten days after the initial seismic event, in fact pulling rescue workers from the debris and attending to their injuries with his own hands and administering to them.
That's nice and all... but it's totally meaningless. Not reporting those things is not defamation. Murray has every right to then put out a statement, or go on TV, or get another reporter to tell these stories. But in a lawsuit? Just because the story is about Bob Murray doesn't mean that Bob Murray gets editorial control. That's not how it works, Bob.
Then it gets even more bizarre:
Instead, presumably to boost ratings, line their pockets with profits, and advance the show's anti-coal agenda, Defendant Oliver intentionally, falsely, and outrageously conveyed that Mr. Murray has no evidence to support his statements that an earthquake caused the tragedy that took the lives of Murray Energy miners during the course of their work for the organization.
Rather than fairly characterizing the evidence that he had in his possession on the subject, Defendant Oliver instead quoted an out-of-context snippet from a single report stating that there was "no evidence that a naturally occurring earthquake caused the collapse." Because Defendant Oliver omitted any mention of the other reports he was aware of that evidence that an earthquake caused the collapse, as Mr. Murray correctly stated following the collapse, Defendant Oliver's presentation intentionally and falsely implied that there is no such evidence.
Yeah. So, about that. The above just isn't true. Watch the video again. Oliver directly says that Murray relies on other evidence to support the earthquake claim ("to this day, Murray says the evidence proves that he was correct.") Then Oliver notes (correctly and accurately) that the government report says otherwise: "that was decidedly not the conclusion of the government's investigation." So, for Murray's lawyers to argue that Oliver ignored the evidence on the other side is... simply not accurate. Oliver notes that Murray points to evidence on his side, but he then points to the government's conclusions. Yes, Oliver makes it clear he believes the government's report, but, um, it's the US government. You're not going to win a defamation lawsuit by arguing that relying on the conclusions of a federal government investigation is defamation, just because you have "other evidence" that you claim disagrees with the government's evidence.
Worse still, as discussed, Defendant Oliver's Senior News Producer, Defendant Wilson, obtained from Plaintiffs detailed information evidencing an earthquake or earthquake-like event did trigger and cause the Crandall Canyon Mine collapse.
Note the immediate caveats of an "earthquake-like event." Again, this undermines the argument that saying a government report concluded it wasn't an earthquake is somehow defamation.
They also did this despite knowing that determinations of causation are vastly complex and can take years before a reliable conclusion can be reached.
So, uh, yeah. About that. This is true, but remember, part of the joke here, from Oliver, was that Murray declared definitively in a press conference the day of the collapse that it was clearly an earthquake that caused this and not the company itself. So, if Murray's own lawyers are now admitting that this is vastly complex and "can take years," it sort of reinforces the key point that Oliver was making, that Murray himself immediately jumped to the conclusion that it was an earthquake and not his fault, when that was not at all clearly know. This filing seems to do more to undermine Murray than Oliver.
Defendants also aired a clip of congressional testimony of a relative of a former employee of Murray Energy that appeared to be dissatisfied with Mr. Murray's handling of the Crandall Canyon Mine collapse, when upon information and belief the statements of that employee were not his own, but were instead scripted by adverse counsel in a lawsuit against Murray Energy and given to the employee to further the agenda of such counsel and their clients.
Right, so this is similar to the whole dismissing the MSHA report by calling its experts "experts." Oliver accurately reported what this relative said. Who wrote it is immaterial. If what that relative said was defamatory, then Murray could go after that relative. But there's no defamation in Oliver playing a clip of Congressional testimony. Again, that's not how it works.
There's a lot more in the lawsuit, which you can read below, but it pretty much all falls into the same issues as the parts described above. It's no surprise that, looking over the website of Murray's lawyers, they don't list defamation as a specialty, but tend to focus on personal injury. There's a lot of complaining and theatricality, but very little of substance, and nothing that I can see that comes anywhere close to defamation. And that makes this a pretty clear SLAPP suit, designed to chill the speech not just of Oliver and HBO, but of any other reporters looking to cover Bob Murray and Murray Energy. This is the nature of chilling effects created by SLAPP suits. They try to punish people for actually speaking out and sharing their opinion while scaring off others from doing the same.
Once again: this is an example of why we need much stronger anti-SLAPP laws at the state and federal level. Laws that require plaintiffs to pay up for filing bogus SLAPP suits, as a deterrent. And, again, one hopes that now that he's facing such a lawsuit (which, as I've said from personal experience is no fun at all, no matter how sure you are that you're in the right), John Oliver will become as outspoken in favor of anti-SLAPP laws as he's been about other important issues.
In March of last year, Jim Myers of the The Tennessean wrote an article about some staff changes at a local university's culinary arts program. If this seems like extraordinarily innocuous subject matter, you're obviously not former director Tom Loftis or his legal representation. Loftis has formally shouted "defamation" in a crowded courthouse. But his accusations aren't levied against Myers or The Tennessean, but rather against someone featured in the article: new culinary arts director Randy Rayburn.
His complaint [PDF] tries to turn Rayburn into the libelous villain by attributing things Myers wrote about Loftis and Rayburn into direct quotes by Rayburn.
On March 2, 2016, The Tennessean published an article, which is attached hereto as Exhibit A and incorporated herein by reference, under the byline of Jim Myers. The words in the article were spoken by Randy Rayburn and published by Mr. Myers in The Tennessean.
This opening assertion is then immediately proven false by Loftis' next allegations. (Emphasis mine.)
"It starts and ends on the cooking line," wrote Mr. Myers, "regardless of the talent of the chef or the quality of the wait staff." The article promoted an event called "Tennessee Flavors," purportedly the product of the Defendant, Randy Rayburn, as a benefit for the culinary arts program of Nashville State Community College.
Myers claimed to have written before about "the dearth of qualified line cooks in town, from our best restaurants to the hotels and convention centers ...." Rayburn, according to Myers, "recognized this need every day in his kitchens at the old Sunset Grill, Midtown Cafe, and Cabana, so he decided to do something about it by dedicating himself to helping build a Culinary Arts program at what used to be called Nashville Tech." These words of self-aggrandizement portray Rayburn as the savior of culinary arts from the incompetence of Plaintiff. The school had chosen to name its new facility at the former Hickory Hollow Mali in Antioch, "The Randy Rayburn School of Culinary Arts."
Reputation isn't zero-sum. Self-aggrandizement isn't defamation, even if it makes someone else look worse by comparison. And we still have yet to see any direct quotes from Rayburn -- only the columnist's impression of Rayburn and his activities.
Myers quoted Rayburn as willing to tell you "it hasn't been easy." When he sought the help of local restaurateurs and chefs to offer feedback on the program and the quality of his graduates, he was quoted, "the reports he got back weren't flattering. The program was simply turning out unqualified students."
Rayburn, "with his name on the building" chose to apply his experience in "how to cut losses and move on quickly," and "decided to get more involved."
Myers then wrote: "they started by cleaning house from the top by removing director Tom Loftis. It was a politically inexpedient move last year since Loftis was the brother-in-law of Bill Freeman who was running for Mayor at the time. If the election had gone a different way, it might have affected funding for the school."
And we still have yet to see Rayburn quote with anything more damning in it than his assessment of returned assessments. But Loftis isn't going to let facts stand in the way of a $1.5 million defamation suit.
These boastful and unseemly comments were reckless and made with a conscience [sic] indifference to the truth. No specific deficiencies were described nor was it revealed in this article whether any of the individuals about whom complaints were made had even attended the school much less graduated from it. No effort was made to determine whether these deficiencies were a function of a failure of instruction rather than an inadequacy of the individual. Among the chefs mentioned in the article were individuals who, to the knowledge of the Plaintiff, had never employed a graduate of the school.
And on and on it goes. Normally, a stupid defamation lawsuit is filed against the biggest target, be it Google or Yelp, etc., rather than the person actually engaging in alleged libel. This suit goes for the smaller target -- Randy Rayburn -- either out of spite (because Rayburn replaced Loftis and had a building named after him and appears to be better liked by local writers, etc.) or because Loftis thinks Rayburn will put up less of a fight than The Tennessean.
The motion to dismiss [PDF], filed by Rayburn's lawyer, Daniel Horwitz, does a thorough job explaining why this should be laughed out of court. It points out that Rayburn is never directly quoted -- at least not saying anything remotely defamatory -- and that the lawsuit states repeatedly that the words Loftis is bothered by were written by Myers and published by The Tennessean, neither of which are party to this lawsuit.
The problem here is Rayburn has to defend himself against these completely baseless allegations or get hit with an expensive default judgment. The best case scenario is the lawsuit being tossed as soon as a judge reviews the motion to dismiss. Unfortunately, this state has no anti-SLAPP law, so it will be extremely difficult to hold Loftis financially culpable for Rayburn's legal fees.
Hurt feelings often result in bogus lawsuits, but this one appears to be almost entirely motivated by the fact the plaintiff's successor at the university appears to be both better-liked and better at the job.
This one is clearly no surprise at all, given that -- as we wrote about just a couple days ago -- Bob Murray and his company Murray Energy were threatening John Oliver with a SLAPP suit if Oliver's satirical report about the coal industry was used to "defame, harass, or otherwise injure Mr. Murray or Murray Energy." Of course, Oliver's report did no such thing... but, alas, Murray has now sued Oliver, HBO, Time Warner... and the writers of the story. The lawsuit was filed in West Virginia state court. In my original post, I suggested it might be filed in Ohio, where Murray Energy is headquartered, but it does also have operations in West Virginia as well. Either way, as with Ohio, West Virginia is a state with no anti-SLAPP law.
Unfortunately, I don't have the full lawsuit. The Daily Beast, which first wrote about the case has chosen -- for whatever reason -- not to post the document, which is pretty lame. However, having watched the John Oliver piece multiple times, I can't see how any of it comes anywhere even remotely near defamatory. It falls into a variety of clearly protected categories, including opinion, satire and rhetorical hyperbole. The idea that there were materially false and defamatory statements that were put forth knowing they were false (or with reckless disregard for the truth) is laughable. There is no way that this lawsuit succeeds -- but, as we've been pointing out -- that's not really the point of most of these kinds of lawsuits. SLAPP lawsuits are designed to create a chill on free speech, by making that speech costly. Obviously, HBO/Time Warner can afford this, and have access to great lawyers, so there's almost no chance that Murray wins the lawsuit, but that's not the point. It will still cost money and lots of time to deal with the lawsuit and that's a hassle.
Murray Energy put out a bizarre statement that does little to support the idea that Murray has an actual case here:
The false and defamatory statements in this broadcast severely and destructively impact Mr. Murray, and all of Murray Energy, particularly our Mines in the State of West Virginia, where we are the largest coal mining employer in the State, as well as coal mining itself, one of the primary foundations of that State's economy.
Murray Energy filed this lawsuit, in part, in order to protect these lives and family livelihoods from the further damage by people who do not want to see coal mined, and want all of those lives destroyed, and will stop at nothing, including lying and fabrications, to accomplish their goal.
This is... laughable if you actually watched the Oliver segment, which is clearly standing up for the workers in these mines, but pointing out how the interests of the bosses -- such as Bob Murray -- are often different than the workers, and highlights a few examples of employees of Murray Energy not appreciating the way Bob Murray ran the company and treated the employees. Similarly, disparaging coal mining itself (which the Oliver report really doesn't even do) is not, in any way, defamatory.
The Daily Beast -- while not posting the complaint -- did get Ken "Popehat" White's opinion on it:
“Overall I’d say it appears frivolous and vexatious,” he said. “Any core of merit is buried in nonsense.”
“It does arguably cite one or two statements (like the bit about earthquakes) that could possibly be defamatory, since they involve fact,” he said. “But for the most part the section describing the purportedly false statements is rambling and semi-coherent, mixing fact with opinion and insult.”
As White notes, the defendants will likely get the case removed to federal court, which should be fairly easy, as there's diversity with most or all of the defendants being in New York, not West Virginia. Of course, it also depends which federal court they remove the case to -- but in some sense, it won't matter at all for anti-SLAPP purposes, since New York (the most likely other destination) has a very weak anti-SLAPP law and it would be tough to apply it here.
So, once again, we can only hope that out of this stupid situation, John Oliver will now become a proponent of much stronger anti-SLAPP laws. If his staff is looking into that issue, I'd be happy to point them to lots and lots of useful experts and resources on anti-SLAPP laws. It's a big issue (that we're living through ourselves) that needs more attention -- the kind of attention that John Oliver is now uniquely positioned to help bring to it.
This past weekend on John Oliver's Last Week Tonight, he took on the issue of "coal" and some politicians' obsession with coal jobs as the only true "American" jobs. The whole segment is interesting, but obviously not the kind of thing we'd normally write up. What we do frequently write about, however, is censorious threats, often from wealthy execs, designed to try to silence people from commenting on issues regarding those doing the threatening. And, it appears that's exactly what happened with coal exec Bob Murray, the CEO of Murray Energy, when he found out that John Oliver was doing a segment that included some bits about Murray.
I recommend watching the whole thing, but the parts about Murray include a brief bit around 4:45 in the video and then a much longer section starting around 12:30 in the video, where Oliver notes:
I'm going to need to be careful here, because when we contacted Murray Energy for this piece, they sent us a letter instructing us to "cease and desist from any effort to defame, harass, or otherwise injure Mr. Murray or Murray Energy" and telling us that "failure to do so will result in immediate litigation..."
Oliver notes that this is the first cease & desist his show has received (which he agrees is incredible). Oliver also points out that Murray has, in fact, been known to follow through on these threats -- suing the NY Times, a contributor to the Huffington Post and more. Many of these lawsuits appear to be fairly classic SLAPP suits, in which the lawsuits against reporters and journalism outfits are designed to try to silence them. Thankfully, Oliver and HBO have good lawyers who clearly know Oliver's rights to talk about, criticize and satirize Murray -- and Oliver then spends the next ten or so minutes doing so (hilariously), even to the point of involving a talking squirrel (you need to watch it yourself to understand why it makes sense). He also notes this at the end:
Bob Murray, I didn't really plan for so much of this piece to be about you, but you kinda forced my hand on that one. And I know you're probably going to sue me over this. But, you know what? I stand by everything I said.
Kudos to Oliver for taking a principled stand here for free speech on an important issue. Of course, Oliver has HBO and its lawyers to back him up, but it sure would be a hell of a lot easier if we had strong anti-SLAPP laws to protect him. So, once again, this is why we need a strong federal anti-SLAPP law, not to mention better state-level anti-SLAPP laws. Bob Murray appears to be based in Ohio, which (lucky him) appears to have no anti-SLAPP law, while I believe John Oliver is in NY, which has an incredibly weak anti-SLAPP law.
Perhaps, sometime soon, John Oliver can take on the need for stronger anti-SLAPP laws.
You've probably heard about the horrific tragedy in the UK of the Grenfell Tower fire that killed many people. There are all sorts of awful stories related to the tragedy, but there is one that hits close to home: the use of SLAPP threats to silence residents who warned about fire dangers in the building. You see, a group of residents in the building who were concerned about safety issues, calling themselves the Grenfell Action Group have been blogging about problems in the building for years -- including this horrifyingly prescient blog post from last November, which included the following paragraphs:
It is our conviction that a serious fire in a tower block or similar high density residential property is the most likely reason that those who wield power at the KCTMO will be found out and brought to justice! The Grenfell Action Group believe that the KCTMO narrowly averted a major fire disaster at Grenfell Tower in 2013 when residents experienced a period of terrifying power surges that were subsequently found to have been caused by faulty wiring. We believe that our attempts to highlight the seriousness of this event were covered up by the KCTMO with the help of the RBKC Scrutiny Committee who refused to investigate the legitimate concerns of tenants and leaseholders.
We have blogged many times on the subject of fire safety at Grenfell Tower and we believe that these investigations will become part of damning evidence of the poor safety record of the KCTMO should a fire affect any other of their properties and cause the loss of life that we are predicting
Yikes. There are many more similar blog posts as well. And apparently, the building management -- the Kensington and Chelsea Tenant Management Organisation (KCTMO) -- decided years ago that the best way to deal with the blogging tenants... was to threaten them with a lawsuit if they kept blogging. In a letter posted to Twitter by a bunch of people (not sure who posted it first), back in 2013, the KCTMO threatened the bloggers with defamation lawsuits if they kept it up:
The image is a little blurry, but here's a transcript of the key part:
I would also ask that you remove from the blog unfounded accusations against named individuals which are your personal opinion and are likley to be considered defamatory and also likely to be perceived as harassment by the individuals concerned. I should be grateful if you could contact Vinal Sarna immediately to confirm that you have removed the offending blog and that you will refrain from making unsubstantiated accusation of criminal behaviour and personal comments about an individual's performance or actions while working on or for the Estate Management Board.
And, of course, UK libel laws are much stricter than in the US, so it's quite reasonable that these kinds of letters would have significant chilling effects on the authors of the blog, who might fear that calling more attention to problems with building management and threats to safety might, in fact, be met with a lawsuit. At least one publication is noting that at least two women who died in the fire were among those threatened with legal action for calling for better fire protection in the building, though the exact details of those threats are not entirely clear.
Either way, this hearkens back to the early days of anti-SLAPP laws in the US, where many were designed to deal with building developers threatening activists or suing them to silence them entirely. Having strong free speech protections in the UK might have helped to make tenants in the building more willing to speak out and have their voices heard, rather than threatened into silence for upsetting the management of the building to the point of having a lawyer send out threat letters.
The fight to protect free speech is about more than just people wanting to say stuff that might upset people -- it's about not being afraid to speak out when it's necessary.
Last week, I presented at the always excellent Personal Democracy Forum event in NY, talking publicly for the first time about the lawsuit that's been filed against us. Specifically, what I chose to talk about is the real chilling effects that such a lawsuit can have -- and has already had on us. We've written about SLAPP defamation suits for many, many years. But it's (unfortunately) different (and much, much worse) to experience it yourself. You can see the video here, which got more emotional than I had expected it to be.
If you agree that these chilling effects are a dangerous attack on free speech, please consider supporting our ongoing reporting via any of the following methods: ISupportJournalism.com, Patreon.com, our own Insider Shop, or perhaps you want to buy some t-shirts, hoodies, mugs or stickers. However you support us: thank you. Related to this, I also want to thank both the staff and attendees at PDF, who were amazing, kind, thoughtful and helpful to me over the course of the event.
Separately, Ars Technica just published a long deep dive article on the claims that the plaintiff in the case against us, Shiva Ayyadurai, has made. It's a worthwhile read.
How much does it take to cross the line into defamation? Far, far more than the plaintiff in this case would have hoped.
It started as so many defamation cases do: with the president of a property association drawing the criticism of other residents. Anthony Milazzo -- winner of the condo association's presidential election (and local dentist) -- was accused of many things by residents on a self-appointed watchdog's blog. As Eric Goldman points out, the blog's owners were rather proud of the site's ability to spread criticism and harvest outraged responses.
A few self-described “troublemaker” residents (as they proudly declare, “We’re the sand in the oyster”) run a blog monitoring the association, including breaking news coverage on issues like a cost overrun on hallway renovations and repairs made using “degraded cement.” After an election for association leadership, a losing candidate blogged that the winner, Milazzo, rigged the election; subsequent posts accused the winner of other malfeasances.
The court notes the posts following the disputed election were far from flattering. Some of the residents' posts are quoted in the court's opinion [PDF]. The posts make claims of election rigging, the (nonspecific) breaking of laws, a comparison to North Korea's government, and this bit of word coining:
"As to the phrase 'a milazzoed moment,' that's a regional colloquialism used to describe those instances when truth gets twisted, raped, then beaten into a sweet hollow mush that's known to trigger the gag reflex and associated depression. Fits of socially inappropriate laughter have also been documented."
Milazzo was obviously unhappy with these portrayals. More specifically, he was miffed the site had chosen to include a link to his dental practice in one of the posts, which he claimed led to quantifiable harm to his day job:
Milazzo asserted that because of defendants' defamatory statements, for the period from 2014 to 2016, his dental practice experienced a decline in: (1) patient visits from 546 to 428; (2) new patients from 351 to 268; and (3) total days worked from 162 to 104 (annualized).
All of Milazzo's claims fail. The court finds the content of the blog was indeed "offensive, rude, and annoying," but it was not defamatory. Goldman's sums up:
The vote rigging discussion expressly acknowledged it lacked supporting evidence. The discussion claiming Milazzo broke 3 laws didn’t specify which laws. The blog posts that “portray Milazzo as an unsavory, untrustworthy and crooked president incapable of effectively operating the condominium association” were all protected opinions and weren’t capable of verification. Regarding some blogged statements, the court says “an investigation of those claims would be fruitless given their overly vague, broad and conclusory nature lacking any basis in fact.”
Talking smack isn't defamation -- at least not in this case. Goldman is somewhat alarmed to see the court actually attempt to tackle the defamation-via-hyperlink argument ("The court seems to imply that the presence of the outlink leads to more inbound search engine traffic from people searching for Milazzo, which is just wrong."), but seeing as it has no bearing on the outcome of the case, he gives it a pass.
Indeed, the blog's self-proclaimed "sand in the oyster" status may have helped the defendants' defamation defense. As the court points out, context matters.
[W]hen read in literary and social context, it is apparent that each of the complained of defamatory statements were an expression of opinion reflecting dissatisfaction with Milazzo and the election results, but were not factual statements. Although all five statements portray Milazzo in a negative light, the statements consist of the author's unsubstantiated rhetoric and opinionated editorial comments, often times resorting to hyperbole. Nothing in the identified statements would cause a reasonable person to believe they were statements of fact; instead, the statements were accusations ambiguous in nature and lacking any supportable basis.
Unfortunately, defending against these defamation claims still cost the defendants money. An anti-SLAPP law, either at the state level (Illinois) or federal, might have allowed the defendants to recover their costs. At the very least, it may have caused Milazzo to think twice before firing off a lawsuit in the face of hyperbolic criticism.
