Our Further Response To Australian Lawyer Stuart Gibson, Who Continues To Threaten Us

from the please-read-it dept

This past Friday, we published our response to an Australian lawyer, Stuart Gibson, who apparently works for a real law firm called Mills Oakley. I know that Gibson is a real lawyer, because he's represented big famous clients in the press before, including this impressive TV appearance in which he is left "categorically denying" statements that his client appears to have made directly and then having to defend himself when the news anchor points out what his client has actually said. Anyway, Mr. Gibson did not appear to appreciate my blog post on Friday, and sent a series of short emails over the weekend, with increasing fervor, in which he insisted that I "get proper legal advice instead of publishing your utter dribble," that my "legal theories" were "nonsensical" and finally demanded to know if I had "the guts" to face him in court.

I, as you know, am not a lawyer -- either in the US or Australia -- and honestly had no idea that one was supposed to make legal decisions based on whether or not one had "the guts." I had always assumed that this was the kind of thing that you need for bar brawls, rather than legal fights. But perhaps things are different down under. Either way, I did get "proper legal advice" (as I had before publishing my original post, but we'll leave that aside), and given Gibson's increasing email threats, our lawyer, the wonderful and well-regarded Paul Alan Levy from Public Citizen Litigation Group, has now responded to Gibson on our behalf. You can read it by following the link or embedded below.

In the meantime, others in the legal blogging world have begun to weigh in on Gibson's threat, including lawyer Scott Greenfield, who dubbed it Stuart Gibson's Really Bad Idea, and lawyer Ken White who noted that Milorad Trkulja is "not a gangster" but "Stuart Gibson Is, I Suppose, A Lawyer." I would recommend reading both posts, for further legal analysis of Mr. Gibson's threats (and make sure you stick around for his email exchange with Ken White). One wonders if this is the kind of publicity that Mills Oakley likes its lawyers to get.

Update: Stuart Gibson has replied to Paul's letter simply stating: "I wouldn't even be bothered to open this Spam." Apparently, Gibson thinks that detailed responses that actually include citations (unlike his own threat letters) from some of the most respected litigators around are "Spam." And the reputation of Mills Oakley continues to spiral down the drain...

Update, the second: Levy responded to Gibson by inserting the full text of the letter in the body of an email so that Gibson would not have to "open" the PDF he originally sent, and Gibson responded "Don't bother pal." Less than a minute later, he sent another email to Levy, saying just "Dribble." At this point I'm confused about Gibson and Mills Oakley and how they operate. Gibson himself had specifically requested that I seek out legal advice in responding to his letter. I have done so. And now he refuses to even read it? This is the professionalism that Mills Oakley and its lawyers demonstrate?

Filed Under: anti-slapp, australia, defamation, free speech, milorad trkulja, paul levy, slapp, speech act, stuart gibson
Companies: mills oakley

Enigma Software Decides The Best Way To Deal With A Negative Review Is To Sue The Reviewer

from the ungracious,-ESPECIALLY-in-defeat dept

Nothing pushes a negative review of your product out of the public eye faster than a lawsuit, am I right? That's the line of thinking Enigma Software has chosen to entertain. It recently filed a lawsuit against BleepingComputer, alleging that its 2014 "review" (actually a forum post detailing Enigma's SpyHunter history as "rogue" software and the deceptive business practices the company has deployed) is defamatory.

What would seem to be a mixture of opinion and fact-based assumptions (backed by links to other sources) is portrayed by Enigma as a malicious attempt by BleepingComputer to damage its reputation so the site can push readers to affiliate partners and advertisers.

Enigma Software claims in its lawsuit that BleepingComputer has the negative SpyHunter review because it takes part in an affiliate advertising program which grants BleepingComputer a commission for redirecting users to Malwarebyte’s site. The Enigma Software Group claims, “Bleeping not only has unlawfully benefited from its smear campaign to the detriment of ESG, it has damaged the reputation of ESG by refusing to take down its false and misleading statements which have been reposted numerous times on other anti-spyware related forums and websites.”

Other computer security sites have already leapt to BleepingComputer's defense. Malwarebytes has donated $5,000 to the site's legal fees and points out that BleepingComputer is not some fly-by-night operation that solely acts as a funnel to preferred vendors.

The content is provided by the volunteer efforts of security professionals and the more than 700,000 registered users who ask and answer all questions presented on the site. To summarize, Bleeping Computer is a valuable resource in the efforts to help users live in a malware free world.

Over at CSO's Salted Hash, Steve Ragan points out the reputation Enigma claims BleepingComputer is destroying has already been severely damaged by the company's own actions over the years.

[T]he lawsuit says, "Bleeping has a direct financial interest in driving traffic and sales to Malwarebytes and driving traffic and sales away from ESG."

While that claim is true at face value, the affiliate programs used by Bleeping Computer help keep the website online and they use affiliate links for a number of vendors, not just Malwarebytes.

Also, most of the comments that are critical of Enigma Software and SpyHunter exist because the company has gained a bad reputation over the years due to spam, as well as questionable detection rates.

Ragan then runs down Enigma's history, including the high number of refunds it's had to hand out to maintain its A+ BBB rating, as well as the years it spent being blacklisted as a security risk by respected anti-virus firms.

He also notes, as BleepingComputer did in its disputed forum post, that SpyHunter has never been classified as malware or targeted for removal by competing anti-virus products, but that's apparently largely due to Engima's past litigious efforts, rather than Enigma dropping the more questionable "features" of its product -- like automatic renewals, suspicious scan results and its "pay-to-clean" pricing. (The scan is free. The removal requires a six-month subscription, which will be automatically renewed by Enigma in perpetuity unless otherwise instructed.)

The lawsuit is already off on the wrong foot, what with it clearly being filed solely to shut down criticism. While Enigma may find New York's lack of a universal anti-SLAPP statute useful (the current version only protects speech related to the discussion of public permits, and even then, it only protects certain people [bloggers, non-traditional journalists] from SLAPP lawsuits brought by government entities), it's now facing Marc Randazza, who has taken up BleepingComputer's defense.

Adding to this is the fact that the specific statements Enigma claims are false and defamatory aren't even directly quoted from the posted review. They're rephrased to put words in the mouth of the forum moderator who posted it. This low-level deception might have made sense if Enigma hadn't included a screenshot of the post it's misquoting as an exhibit in the filing.

Here are Enigma's claims, followed by the actual wording used by BleepingComputer.

In these posts, Bleeping makes the following assertions falsely and without any reasonable basis to believe that the statements were true when made:

That SpyHunter 4 or ESG engage in "deceptive advertising which violates several consumer protection laws in many states";

[The "quoted" statement does not actually appear in this post, or in any of the ones following it in the thread.]

ES: That SpyHunter 4 or ESG has a "history of employing aggressive and deceptive advertising";

BC: SpyHunter by Enigma Software Group USA, LLC is a program that was previously listed as a rogue product on the Rogue/Suspect Anti-Spyware Products List because of the company's history of employing aggressive and deceptive advertising.

[This claim is backed up by a footnote linking to an outside source that reinforces BC's claim.]

ES: That SpyHunter 4 is a "rogue product";

BC: SpyHunter by Enigma Software Group USA, LLC is a program that was previously listed as a rogue product on the Rogue/Suspect Anti-Spyware Products List…

BC: SpyHunter is not classified as malware or rogue security software and other antivirus and antimalware vendors do not target it for removal.

ES: That SpyHunter 4 or ESG have not cooperated in submitting their program for testing "most likely due to the program's ineffectiveness and high rate of false positives?";

[Again, this "quoted" phrase does not appear in the post, or in any the moderator's posts in the same thread. The moderator notes it has not been tested by other AV firms to determine its effectiveness, but does not make any related claim about false positives or ineffectiveness. The closest thing to it is this sentence, which is clearly an opinion.]

In my opinion SpyHunter is a dubious program with a high rate of false positives.

[This is backed up by a link to supporting information from an outside source.]

ES: That SpyHunter 4 or ESG engage in deceptive pricing;

BC: While there are mixed reviews for SpyHunter, some good and some bad, my main concern is the reports by customers of deceptive pricing, continued demands for payment after requesting a refund, lack of adequate customer support, removal (uninstall) problems and various other issues with their computer as a result of using this product. For example, some users are not aware that when purchasing SpyHunter, they have agreed to a subscription service with an automatic renewal policy.

[Again, these statements are supported by links to information sources. The addition of "my main concern" clearly shows the moderator is making a statement of opinion based on available information. And the connecting phrase "reports by customers" makes it clear he's making an inference based on statements by others.]

ES: That most users of SpyHunter 4 "are not aware that when purchasing SpyHunter, they have agreed to a subscription service with an automatic renewal policy"; and

[See the above quote and note, again, that multiple links in the review direct readers to outside sites backing up this statement, like the numerous complaints about this practice found at ComplaintsBoard and the Better Business Bureau.]

ES: That SpyHunter 4 is "malware" or "rogue security software" despite not being classified as such by security vendors.

BC: SpyHunter by Enigma Software Group USA, LLC is a program that was previously listed as a rogue product…

BC: SpyHunter is not classified as malware or rogue security software and other antivirus and antimalware vendors do not target it for removal.

[These two directly contradict the assertion being made by Enigma in its lawsuit. The author of the post never states that SpyHunter is "malware" or "rogue security software."]

Enigma doesn't have much of a case. But it has just enough of one to be troublesome. It's forced others to bend to its will in the past by aggressively litigating, and it can drain BleepingComputer of time, energy and money just by forcing it to defend itself from ridiculous claims.

Filed Under: anti-slapp, defamation, free speech, reviews, slapp, software, spyhunter
Companies: bleepingcomputer, enigma software

Ontario Passes Law Targeting Bogus Defamation Lawsuits

from the fewer-lawsuits,-more-apologies dept

Good news for Canadians! Well…some of them. This good news only applies to a) Ontario residents who a.1) aren't vexatious litigants who use BS defamation lawsuits to silence critics.

Bill 52, which changes the Courts of Justice Act, the Libel and Slander Act and the Statutory Powers Procedure Act, received royal assent Nov. 3.

The bill contains a provision that "would allow the courts to quickly identify and deal with lawsuits that unduly restrict free expression in the public interest, minimizing costs and other hardships endured by the defendant," said Yasir Naqvi, Ontario's Liberal Community Safety and Correctional Services Minister, last March during a debate on the bill. "It will extend qualified privilege in defamation law under the Libel and Slander Act."

In other words, it's an anti-SLAPP law. A handful of states in the US have recognized the damage bogus litigation can do to defendants even when plaintiffs clearly don't have an actionable case. Laws like these also neutralize the chilling effect of bogus legal threats. Holding frivolous litigants responsible for legal fees tends to greatly reduce the number of questionable cease-and-desist demands issued by would-be litigants.

That such a law would be passed in Canada is somewhat of a coup considering its courts' bizarre decisions in defamation cases. In some cases, courts have come to rational conclusions (Google is not a "publisher" of defamatory material simply by linking to it in search results). In others, courts opened up brand new avenues of liability, like in the case of blogger Michael Veck, who was ordered to pay $10,000 to the defamed party despite only re-posting what another writer had actually written.

How this law will mesh with inconsistent views on who is or isn't a responsible party in defamation suits remains to be seen. But for now, it will hopefully prevent this sort of thing from reoccuring.

During a debate in the legislature, Progressive Conservative MPP Sylvia Jones recounted a case in British Columbia where a person sought a permit to convert forested land into farmland. A neighbour objected over concerns "about a possible negative impact on the streams that flowed through his land," she said.

The township decided "that it needed more time to measure the environmental impact of the application," noted Jones, MPP for Dufferin-Caledon.

"The claimant sued the defendant, the organization which she was involved with and another individual, claiming $13 million in damages against all three," she said. "The claim against the defendant herself was for $5.5 million."

A judge determined "that the claimant had provided no evidence of his allegations against the defendant," Jones noted, but the defendant's legal costs were more than $20,000.

Unfortunately, the law doesn't appear to be quite as robust as some other anti-SLAPP laws we've seen. There is a fee-shifting provision, but the law is strictly limited to matters of "public interest," which means a motion to dismiss under this law will be more difficult to get granted should the court decide the allegedly libelous statements do not pertain to public interest matters.

That being said, most bogus defamation suits tend to brought by people who are public figures to some degree, so this should result in a few potential litigants deciding they're better off fighting speech with speech, rather than with legal letterhead and court filings.

Filed Under: anti-slapp, canada, free speech, ontario, slapp

James Woods Not Allowed To Find Out Name Of Guy Who Called Him A Cocaine Addict On Twitter

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

Over the summer, we wrote about a positively ridiculous lawsuit filed by the actor James Woods, who apparently took offense to an obviously hyperbolic tweet, calling him a "cocaine addict." Woods felt that such a joke tweet deserved a $10 million lawsuit. The anonymous Twitter user hooked up with Ken "Popehat" White as his lawyer and made an anti-SLAPP claim against Woods for his lawsuit that seemed obviously designed to silence criticism on Twitter. Amusingly, one of the things that White's response pointed out was that Woods himself had referred to others on Twitter in a similar way: One of the most important parts of California's very good anti-SLAPP law (which is a way to fight back against lawsuits that are clearly just designed to shut someone up), is that it blocks all "discovery" efforts in the case until the anti-SLAPP efforts are decided. This is especially important, because it's often the discovery process that destroys peoples' lives -- costing them tons of time and money in responding to requests. In this case, Woods and his lawyer still sought to use the discovery process to find out the identity of the Twitter user who went by the user name "Abe List."

However, as Eriq Gardner at the Hollywood Reporter notes, the court has rejected this attempt, noting that it's way, way too early to get into that with an anti-SLAPP claim still in place:

L.A. Superior Court judge Mel Recana concludes that the defendant's mental state when making the tweet isn't material just yet in the case. In an order this week, the judge writes, "Defendant argues that if the court finds that the statement is a 'mere rhetorical insult,' then malice is irrelevant and defendant prevails. The court agrees that plaintiff is not entitled to discovery into malice at this stage. The anti-SLAPP motion is limited to whether the statement was a provable fact or a 'figurative rhetorical insult.' "

This is not surprising, but it's good to see that the court is following the proper procedures here and not letting Woods try to get around the anti-SLAPP process in order to identify the tweeter.

Filed Under: abe list, anonymity, anti-slapp, discovery, free speech, james woods, slapp

Court Hands Loss To Doctor Who Sued Over Blog Posts Criticizing His Questionable Alzheimer's Treatments

from the woefully-inept-trademark-thuggery dept

Another bullshit lawsuit seeking to suppress critical speech has resulted in a loss for the plaintiff.

Last year, Dr. Edward Tobinick sued Yale physician Steven Novella over a blog post Novella had written that questioned and criticized Tobinick's off-label use of immune-suppressing drugs to treat… Alzheimer's patients. Here's a short quote from the post at the center of the lawsuit:

The claims of Tobinick, however, are not in the gray area—they are leaps and bounds ahead of the evidence. Further, the conditions he claims to treat are not clearly immune-mediated diseases. It’s one thing to use an immune-suppressing drug to treat a disease that is known to be caused by immune activity, and probably the kind of immune activity suppressed by the drug.

Tobinick, however, is claiming that a wide range of neurological conditions not known to be immune mediated are treated by a specific immunosuppressant.

Tobinick first demanded Novella take the post down. When Novella refused, Tobinick sued him and Yale University. Tobinick didn't allege defamation, as one would expect. (At least, not originally, allegations of libel were added to an amended complaint.) Instead, Tobinick claimed Novella's post was "false advertising" and actionable under trademark law.

There are very few cases where plaintiffs have been successful misusing intellectual property laws to shut down critics. This one is no exception. Back in June, the court granted Novella's anti-SLAPP motion, striking Tobinick's motions for unfair competition, trade libel and libel per se. All that was left unaddressed was Tobinick's Lanham Act claim.

Now, the court has handed a victory to Novella, granting his motion for summary judgment and ordering the case closed. The court finds no merit to Tobinick's argument that Novella's critical blog posts were "commercial speech" and therefore actionable under the Lanham Act.

[T]he Court finds that the speech at issue here—that is, the First and Second Articles, published on www.sciencebasedmedicine.org —is not commercial speech. The Articles proposed no commercial transaction, and consequently do not fall within the “core notion” of protected speech. See Bolger, 463 U.S. at 66. Furthermore, the Articles do not fall within the scope of the definition expounded in Central Hudson, “expression related solely to the economic interests of the speaker and its audience.” 447 U.S. at 561. Both articles clearly state their intent to raise public awareness about issues pertaining to Plaintiffs’ treatments.

Thus, the First and Second Articles can only potentially qualify as commercial speech under Bolger. Yet the Articles differ from the pamphlets at issue in Bolger in a number of ways. First, the Articles are not conceded to be advertisements. Second, the only products referenced in the First Article are Plaintiffs’ treatments. To the extent that the Second Article mentions Defendant Novella’s practice, it is in direct response to the instant litigation as opposed to an independent plug for that practice.

The main thrust of Tobinick's Lanham Act argument was that because Novella made money indirectly from the website, it was commercial speech. The court doesn't care for this argument either, and points out that even certain commercial speech is still protected under the First Amendment and not subject to Lanham Act claims.

The third and final factor from Bolger, whether there was an “economic motivation” for the speech, is the primary basis for Plaintiffs’ opposition to summary judgment. Essentially, Plaintiffs contend that the Articles are commercial speech because SGU Productions, a for-profit company controlled by Defendant Novella, earns money by selling advertisements on its website (skepticsguide.net), advertisements in a podcast, memberships, and goods such as t-shirts…

Thus, even if Defendant Novella directly earns money from an organization sponsoring or producing the speech, this alone would not make the speech commercial. Furthermore, the specific evidence elicited in this case regarding SGU does not point to a strong economic motivation for the speech. Although Plaintiffs argue that “[t]he flow of money to Novella . . . is significant, as [Jay] Novella testified to over $200,000 last year,” Jay Novella also testified that, despite this profit, SGU “made no profit after expenses” because “we reinvest the vast majority of the money back into the company when we have a positive cash flow.”

The Court therefore finds that Defendant Novella’s speech in the First and Second Articles does not qualify as commercial speech, such that the Articles can form the basis of a Lanham Act claim.

Once again, we see a plaintiff learning the hard (and expensive) way that speech that may harm your commercial interests isn't automatically a.) defamatory or b.) a violation of intellectual property laws. Of course, many litigants already know this. They're apparently just hoping the courts don't.

With the granting of the anti-SLAPP motion, it looks like Tobinick will be paying the costs of defending against his bogus lawsuit. But it's not as though people looking to censor critics will be any less willing to engage in Hail Mary-esque lawsuits. Many defendants simply aren't willing to put themselves through the financial and mental pain and suffering that accompanies litigation. Because of this, this string of IP law-abusing legal failures won't prevent similarly bogus attempts from being made in the future.

Filed Under: alzheimer's, anti-slapp, commercial speech, criticism, edward tobinick, free speech, lanham act, slapp, steven novella

Ridiculously Thin Skinned Donald Trump Threatening Critics With Totally Bogus Trademark Infringement Lawsuit

from the so-presidential dept

So just last week, we wrote about the ridiculousness of Presidential candidate Ben Carson threatening a trademark (and copyright and publicity rights) lawsuit against people making Ben Carson (both pro- and anti-) clothing. And, now it appears that Donald Trump is doing the same ridiculous, censorious thing. Fresh off of threatening a completely bogus defamation lawsuit against a critical political organization, Alan Garten, one of Trump's lawyers, fired off a hilariously bogus threat letter to the website StopTrump.us. As you can probably guess, the operators of that site are not fans of Mr. Trump. And, of course, that's both completely allowed and encouraged in a democratic country with freedom of expression.

But not to Donald Trump or his censorious lawyers, apparently. They're claiming it's trademark infringement, as you can see in the ridiculous letter that was sent to the site. Garten throws out lots of scary sounding legal claims -- almost all of which are totally bullshit.

... it has come to our attention that you have registered the Domain Name STOPTRUMP.US and have made a deliberate attempt to sell T-shirts online using TRUMP and DONALD TRUMP brands without any authorization from Mr. Trump. Please be advised that the unauthorized use of this Domain Name infringes upon Mr. Trump's common law and statutory trademark rights in that the name Trump® is protected by US. Trademark Registration No. 3,526,411. Indeed, the Trump® trademark has even been declared "incontestable" by the US. Patent and Trademark Office pursuant to §1065 of the US. Trademark Act (15 U.S.C. § 1065). As such, your use of the Domain Name constitutes a violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), entitling Mr. Trump to recover (i) your profits, (ii) any damages sustained by Mr. Trump, and (iii) the costs of bringing an action against you (which may be tripled by the reviewing court).

Your registration (and use) of the Domain Name also constitutes cyber-piracy in violation of the US. Anti-Cybersquatting Consumer Protection Act, 15. U.S.C. § 1125(d). Like the Lanham Act, under Anti-Cybersquatting Act, any person who, in bad faith, registers a domain name that is identical or confusingly similar to the trademark of another person can be held liable for damages -- up to $100,000 per domain. 15 U.S.C. § 1117(d).

Scary, scary and completely bullshit. Law professor Eugene Volokh nicely dismantles Trump's trademark claims, pointing out that political criticism is clearly protected free speech and not covered by trademark. Even if it was, any such lawsuit would fail dreadfully. There's no likelihood of confusion here. There's no dilution (which "expressly exempts uses of a trademark for 'identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.'"). Volokh even leaves out the fact that the one registered trademark named only is for "Real estate services, namely, listing, leasing, financing, and managing commercial, residential, and hotel properties." Protesting Trump's political aspirations is none of that.

The cybersquatting claim is also a complete joke. There are so many cases on the books these days saying it's fine to use a trademarked name for criticism, as it's regularly approved for so-called "sucks sites," and there's no way that StopTrump doesn't qualify.

So just this week alone, we've seen Trump and his lawyers make completely bogus threats using defamation law and trademark law to try to stifle political criticism. What's next? Will he ask the FCC to silence his critics? Yup, that too.

I'm curious if there's ever been a Presidential candidate so thin skinned and so willing to make baseless legal threats to stifle pretty ordinary critics?

Filed Under: cease and desist, donald trump, free speech, political discourse, slapp, threats, trademark
Companies: stoptrump.us

Donald Trump Threatens Ridiculous Defamation Lawsuit Over Attack Ad

from the slappity-slapp-slapp dept

Donald Trump may be running for President, but apparently his notoriously thin-skinned approach (along with the quick legal trigger) to handling criticism has not yet gone away. Trump has been fighting with the conservative group Club for Growth for some time, and it put out something of an attack ad against him noting, among other things, that Trump has supported raising taxes (a huge no-no for the Club for Growth) among other things. As political attack ads go, this one is fairly tame. But it didn't stop Trump from having his lawyers send a blustery cease and desist letter to Club for Growth, claiming the ad is defamatory (the letter was first posted by Olivia Nuzzi from the Daily Beast):

Simply stated, your Attack Ad is not only completely disingenuous, but replete with outright lies, false, defamatory and destructive statements and downright fabrications which you fully know to be untrue, thereby exposing you and your so-called "club" to liability for damages and other tortious harm. For example, while your Attack Ad blatantly misrepresents to the public that Mr. Trump "supports higher taxes", nothing could be further from the truth. To be clear, Mr. Trump's tax plan, which is scheduled to be released later this week, supports a lowering of taxes.

Not surprisingly, a closer look at your Attack Ad reveals that your supposed "source" for this statement is -- according to the small print on your website -- nothing more than a single article published in the Advocate on February 15, 2000, which quoted Mr. Trump as supposedly saying he would "impose a one-time net worth tax of 14.25% on the superwealthy ... to pay off the national debt." That's it. While a reputable organization would have at least had the decency to disclose its source -- and the fact that the source article is more than 15 years old -- your pitiful little grup conveniently chose to leave that information out in a delierate attempt to mislead the public into believing that it is reflective of Mr. Trump's current position -- when unquestionably, it is not. Making matters worse, you then chose to appear on several talk shows, including MSNBC's Morning Joe, in which you furthered the erroneous notion that Mr. Trump "supports higher taxes" even though you have absolutely no factual support for that statement. In other words, you lied. Mr. Trump does not support higher taxes. This is the very definition of libel.

Actually, it's not even close to the definition of libel. It's almost certainly not libel at all.

The letter concludes in usual bluster:

In the event, however, we do not promptly receive these assurances, please be advised that we will commence a multi-million dollar lawsuit against you personally and your organization for your false and defamatory statements and the damage you have intentionally caused in my client's interests as well as pursue all other remedies available to us at law or in equity.

You'd think that someone running for president would know better than to totally flip his lid over some random attack ad. You'd think that his lawyer would (1) know that this is not defamation and that (2) threatening as such only gives the original ad much more attention. Trump, as a very public figure, would need to show that the information in the ad was not just false, but that Club for Growth knew it was false and deliberately posted such false information to harm Trump. That's not going to happen, not in the least because there's plenty of evidence to support the claims that Trump has advocated (recently) for higher taxes. The Federalist provides a list of some recent articles:

ABC (Aug. 6): Donald Trump Once Proposed the Biggest Tax Hike Ever
Bloomberg (Aug. 26): Donald Trump says he wants to raise taxes on himself
CNN (Aug. 27): Donald Trump: Tax the rich more
New York Times (Aug. 31): Increase taxes? Talk by Donald Trump alarms G.O.P.
International Business Times (Sept. 8): Elizabeth Warren Praises Donald Trump Tax Plan

Yeah, good luck with that "very definition of libel" thing.

Club for Growth seemed to take the whole thing in stride, tweeting out the following reply: If you can't read it, it says: Short response to @realDonaldTrump Stop Whining. Threatening a bullshit SLAPP suit against a political attack ad that says things that are basically true doesn't seem particularly presidential.

Filed Under: attack ad, donald trump, first amendment, raise taxes, slapp, taxes, thin skin
Companies: club for growth

Adam Miller Says He'll Reopen Bogus Copyright Lawsuit Against Critic, Declares 'War' On 'Communists' Who Mock Faith Healing

from the good-luck-with-that-one,-adam dept

Remember Adam Miller? The so-called, self-professed "faith healer" sued an online critic, Stephanie Guttormson, earlier this year. It was a clear SLAPP lawsuit. Guttormson had taken one of Miller's laughable promotional videos and added some commentary mocking it. You can see it here: That video had less than 1,500 views at the time Guttormson was sued. It now has about 65,000. The main claim in the lawsuit was copyright infringement, which is laughable. It's clearly fair use. The video was used in a non-commercial manner for commentary and criticism. It's easily fair use, and the lawsuit was clearly designed to silence public comment. The lawsuit also made some ridiculous claims, such as claiming that calling Miller's nonsense "faith-based bullshit" is "defamatory" because "Mr. Miller's work does not require a client to hold any faith." Yeah. Let that one sink in for a moment.

Either way, just days after this started getting attention, it appears that Miller and his lawyer realized that this was going to end badly and let the matter drop. As we noted at the time, he dismissed the lawsuit without prejudice, meaning that he could potentially file it again in the future. We wondered if that opened up an opportunity for Guttmorson to file for a declaratory judgment, but she announced that she was just going to let the matter drop.

Well... Adam Miller is back and he's insisting that he's going to reopen the lawsuit against Guttormson. Oh, and not only that, he's also launched a new site, FaithWarrior.org where he insists that he's declaring "war" on "anarchy" and a variety of other things, including communism (he insists his critics are all communists), "faith bashing," "cyberbullying," "online harassment" and more. I'm almost wondering if he's signed up Charles Carreon as his lawyer. Carreon similarly declared war on his online critics, after they mocked him for his own SLAPP antics, and he shows up every once in a while to randomly attack those who called him out for his censorship attempts. Miller's own personal website has been redone -- though parts of it mentioned in the article above appear to have been taken down and replaced with a "coming soon" promotion for a book (which makes it look like Miller thinks all this negative publicity may help him sell books) and the following almost incomprehensible text:

The truth always comes out. Regardless of how many idiotic minds shout in the streets. Faith will prevail and communism shall not rule. And you thought that this was about the healing work... this was just a bait and you have taken it. " Hook. Line. And Sinker. " Every one of you will be exposed. :)

Got that? He's also started posting videos to a YouTube account, where he has one specifically for Guttormson: For a "faith healer" he sure seems pretty angry. It starts out "Hey, Guttormson, ASSHOLE!" The rest of it is also somewhat incomprehensible. After some weird mention of Deepak Chopra (huh?), he says:

So here it is. Just because you have a computer, does not mean that you people are something new. Because 80 years ago, in Russia you same people took over the churches and killed all the priests. That's who you people are and I'm going to take you all down.

I have no idea what he thinks he means by that, but then there's his second video where he insists that he's reopening the copyright case against Guttormson and explains how he's going to war against his critics. In it, he declares that athiests are "communists." He claims "they're backed by the Communist rule. They're put as cells around the country in order to disrupt any kind of belief system." Considering that Miller himself argued that anyone calling his nonsense "faith-based bullshit" was defamatory, you'd think he'd be more careful about making statements of facts about his critics that are laughable.

Then he insists that the lawsuit is back on, though it's not clear he understands the lawsuit he himself is supposedly filing.

My lawsuit is for copyright infringement only.... I am suing Guttormson because he has made ridiculous statements that are completely untrue about a work he knows nothing about. I am now going to reopen that case. We're going to drag this individual into Arizona because he is in Maryland, and we're going to continue the lawsuit. It's very important that everyone follows this lawsuit and understands what I'm going to do to this individual. Because this has everything to do with faith. You see these people are set in this country and they are completely brainwashed again as communist cells and they want to bring communism to America and make sure that we have no freedom of any kind of rights whatsoever.

So much to parse and so little time. If the lawsuit is for "copyright infringement only" as Miller claims, then why does he say it's about "ridiculous statements that are completely untrue"? That's not about copyright at all. That's only true about defamation. And, again, nothing in the original appeared to be either defamatory or infringing. Also, directly saying that you intend to drag someone across the country, and saying it's because you believe she made statements you don't like kind of makes it that much more clear that this is nothing other than a clear SLAPP suit.

Unfortunately, while both Arizona and Maryland have anti-SLAPP laws, they are both super narrowly targeted, only focusing on lawsuits that are about speech regarding government efforts. Yet another reminder of why we need (desperately) a federal anti-SLAPP law.

Also, it seems ridiculous that Miller is claiming that it's Guttormson and others critics wanting to make sure "we have no freedom of any kind of rights" (whatever that means), when it looks like he is seeking to suppress speech through questionable lawsuits. So, again, he's claiming (maybe) defamation while defaming people, arguing that those he's looking to silence are trying to take away all "freedom of rights." So that's two out of the three things that he's claiming others are doing to him that it appears he may actually be trying to do to others. What about the third? Remember how he claimed this is "about copyright infringement only"? Well, the third video that Miller has uploaded to his new YouTube account is a clip from a documentary on the Soviet Union. That seems like it may be copyright infringement, no? Again, it seems like there's a decent chance Miller is trying to pull a reverse Streisand Effect here. Deliberately picking on those who mocked him in the past, thinking that it will apparently help promote his new book. And, as he says himself, "this was just bait and you have taken it." I doubt it's going to help sell many copies of the book though. Either way, people filing bullshit censorious lawsuits deserve to be called out for doing so.

Filed Under: adam miller, copyright, criticism, defamation, faith healer, free speech, slapp, stephanie guttormson

Popehat v. James Woods SLAPP-down Match; Coming Soon To A Court Near You

from the can-i-get-front-row-seats? dept

A month ago, we wrote about actor James Woods bizarrely suing a trollish Twitter user who had been mocking Woods on the site. The whole lawsuit seemed ridiculous. The specific tweet that sent Woods over the edge was this anonymous user (who went by the name "Abe List") saying "cocaine addict James Woods still sniffing and spouting." Soon after our post on the subject, Ken "Popehat" White posted an even better takedown entitled James Woods Punches the Muppet. That post has now been updated with a brief note that White has now been retained to defend the anonymous Twitter user. And, if that gets you excited for what to expect in the legal filings, well, you don't have wait. As first reported by Eriq Gardner at the Hollywood Reporter, White has filed the John Doe's opposition to Woods' attempt to unmask the guy. And it's worth reading.

Problem number one with Woods' suit is laid out right at the beginning of the filing, which is that Woods himself has a habit of accusing others of using illegal drugs as well, just as Abe List did: The filing shows other tweets from Woods that have similar words that Woods complained about Abe List using, such as "clown" and "scum." As the filing notes, it appears Woods thinks that he can use those insults towards others, but if anyone uses them towards him, it's somehow defamatory.

Plaintiff, an internationally known actor, is active on Twitter, a social media platform. There he is known for engaging in rough-and-tumble political debate. Plaintiff routinely employs insults like “clown” and “scum,” and even accuses others of drug use as a rhetorical trope....
But Plaintiff apparently believes that while he can say that sort of thing to others, others cannot say it to him. He has sued Mr. Doe for a derisive tweet referring to him as “cocaine addict James Woods still sniffing and spouting” in the course of political back-andforth.... He also complains, at length, that Mr. Doe has called him things like a “clown” and “scum.” Naturally, Plaintiff has himself called others “clown” or “scum” on Twitter.

The filing, quite reasonably, notes that these kinds of hyperbolic claims cannot be seen as defamatory, and since there's no legitimate claim here, there is no reason to do expedited discovery or to unmask Abe List, who is entitled to have his identity protected under the First Amendment.

Oh, and, not surprisingly, White will be filing an anti-SLAPP motion shortly, which may mean that Woods is going to have to pay for this mess that he caused.

The filing also notes that while Woods sent a subpoena to Twitter to try to seek Abe List's identity, the company turned it down as deficient. The full two page letter is in the filing below as Exhibit B, but a quick snippet on the First Amendment concerns: Meanwhile, Woods has already filed a response in which he is still seeking to uncover the name of Abe List, and which repeats more ridiculous claims about the whole thing, starting off with the simply false claim that the original "cocaine addict" tweet was likely seen by "hundreds of thousands" of Woods' followers. That's wrong. They would only see if they followed both Woods and the Abe List account, which very few did.

The filing, somewhat hilariously, claims that calling someone "a joke," "ridiculous," "scum" and "clown-boy" are not protected by the First Amendment. Which makes me wonder what law school Woods' lawyers went to. Because that's just wrong:

AL's outrageous claim appears to be the culmination of a mlaicious on-line campaign by AL to discredit and damage Woods' reputation, a campaign which began as early as December 2014. In the past, AL has referred to Woods with such derogatory terms as a "joke," "ridiculous," "scum" and "clown-boy." ... Although AL's rantings against Woods began with childish name calling, it has escalated beyond the protections of free speech, i.e., the First Amendment does not permit anyone to falsely represent to the public that another person is addicted to an illegal narcotic.

Um... but Woods himself did exactly that (see above). It's standard hyperbolic speech, which is clearly not defamatory especially when mocking a public figure like Woods who has a history of using the same sort of hyperbolic insults on Twitter. Even more ridiculously, Woods' lawyers claim that by saying that the statement was a joke, that's Abe List admitting that he knew it was a false statement. I can't see that argument flying. I can see it backfiring big time once the anti-SLAPP motion is made.

So, what about those similar tweets made by Woods himself? His lawyers tell the court to ignore those piddly things.

... to the extent AL or TG attempt to argue that the Court should consider other statements on their Twitter accounts, or any previous tweets by Mr. Woods, the argument is a red herring. First, there is no reason any of Mr. Woods' followers, all of whom were exposed to the defamatory statements, would even bother to investigate the speakers and/or their Twitter sites to determine if they were reliable sources. As to Mr. Woods, we are not aware of any false statements of fact made by Mr. Woods and his sometimes sharp commentary on political matters is irrelevant to the allegations here.

Except, uh, again, Woods suggested someone smoked crack, just like Abe List joked that Woods was a cocaine addict. And, again, Woods and his lawyers are just wrong that all of Woods' followers would have seen Abe Lists' tweets. They're just factually wrong.

You never know how courts will rule in any particular case, no matter how ridiculous, but I have a hard time seeing how Woods gets out of this without having to pay two sets of lawyers -- his own and Ken White -- for filing a clearly bogus defamation case designed to shut up (and identify) an anonymous Twitter critic. No matter what, James Woods may not be a cocaine addict, but he has made it clear that he can dish it out but can't take it back when people make fun of him. What a clown.

Filed Under: abe list, anonymity, anti-slapp, cocaine, criticism, defamation, discovery, free speech, hyperbole, james woods, ken white, popehat, slapp
Companies: twitter

James Woods Sues Random Trollish Twitter User For $10 Million Over Clearly Hyperbolic Tweet

from the slappity-slapp-slapp dept

Eriq Gardner, over at the Hollywood Reporter, was the first of a few sites to post the story of how actor James Woods is ridiculously suing a trollish Twitter user for $10 million, arguing that a single tweet from this guy, Abe List, who had all of 2,000-ish followers, somehow hurt Woods' reputation. This is not just hard to believe, but it seems to be dipping into flat out SLAPP territory. The full filing is worth reading, and suggests that maybe, just maybe, Woods needs a hobby (and slightly thicker skin). At issue is the Twitter user who goes by the name "Abe List." Whoever that is appears to be a slightly annoying/trollish Twitter user, who has particularly delighted in annoying conservatives on Twitter. A few weeks ago, Woods made a bizarre and slightly nonsensical tweet involving Caitlyn Jenner and Planned Parenthood (don't ask), and Abe List shot back with:

"@RealJamesWoods @benshapiro cocaine addict James Woods still sniffing and spouting."

-- Abe List (@abelist) July 15, 2015

There are a few other historical tweets from Abe List mocking Woods, including one from December calling him a "clown-boy." Clown-boy is clearly not defamatory. The question here is if "cocaine addict" is defamatory. It is a statement of fact, and if it's not actually true, it could potentially be defamatory, but that's hardly the end of the story. As a very public person, Woods would have to show that whoever is behind "Abe List" published the claim "with actual malice." And "hey, I don't like James Woods and think he's a clown boy with stupid views" is hardly "actual malice." It would mean that Abe List either knew it was false and tweeted it anyway, or had "reckless disregard for the truth." That seems unlikely to hold up.

Furthermore, it's fairly clear that, given the context -- both Twitter and Abe List's usual tweets -- that the tweet that so concerns Woods is, at best, hyperbolic mocking on the internet, which wouldn't be defamation either.

And here's the real kicker in all of this: this was a random @reply tweet from a user with around 2000 followers (2,276 when I took a screenshot of his account, right before he took it down entirely). If you're not familiar with how @replies work, if you start a tweet with @username, the only people who will see it directly in their timelines are those who follow both users. That is, the only people who would have seen that tweet show up are people who happen to follow both @RealJamesWoods and @abelist. That venn diagram is likely to be tiny and well less than the 2,276 followers of @abelist. It's possible that if someone opened Woods' original tweet to see how others responded then some of them might have also seen the @abelist tweet -- but the likely number is tiny. And, of course, the only people who would have taken it seriously are idiots. It's pretty clearly just someone spouting off, as people are known to do on the internet.

And, yet, rather than letting this tweet fade into obscurity, as it normally would, Woods has decided to sue for $10 million, apparently based on the idea that lots of people actually saw this tweet (they didn't), and that they were likely to believe such a throwaway claim (which they wouldn't). And the end result is that many, many, many, many more people are not only seeing this tweet and (perhaps for the first time) wondering about whether or not Woods has a cocaine habit, but are also learning that Woods appears to have a ridiculously thin skin -- such that he's upset by the fact that some nobody on the internet called him "clown-boy."

Woods' claims arise out of and are for damages with respect to a false and defamatory statement which was initially published on or about July 15, 2015 by an unidentified anonymous person who created and who operates a Twitter account under the name "Abe List" (the "AL Twitter Account"). The owner of the AL Twitter Account has thousands of followers and, since at least December 2014, has undertaken to engage his followers with a campaign of childish name-calling targeted at Woods. In the past, AL has referred to Woods with such derogatory terms as "prick," "joke," "ridiculous," "scum" and "clown-boy."

These are, in fact, mostly childish. But, that's not illegal. We can all say that James Woods is a ridiculous, prick, clown-boy for suing people on Twitter, and it's not defamatory. In fact, as Ken "Popehat" White points out, the above section actually undermines any case Woods might have, by adding in more context about how Abe List is a trollish Twitter user looking to provoke people he doesn't like. And again, the "thousands" of followers is only true in the "very barely" sense, and the idea that more than a few of those saw the tweet in question is unlikely (again, they need to be followers of both individuals and actually read all their tweets.

But Woods and his lawyer don't seem to have the first clue about how Twitter works. To make the case that more people saw this, Woods is arguing that if you did a Google search on "Abe List James Woods" that tweet would show up along with the one calling Woods "a ridiculous scum clown-boy."

Of course, these days, I'm sure lots of other stuff comes up.

Woods presents zero evidence that anyone, other than James Woods himself (and his lawyers) was busily googling "Abe List James Woods" and yet, he somehow claims that this is evidence that "hundreds of thousands" of people may have seen the tweet.

AL published, and/or caused to be published or authorized to be published, the False Statement on the AL Twitter Account and in current (as of the date of this Complaint) Google.com search engine results, causing the False Statement to be viewed thousands of times and possibly even hundreds of thousands of times

And that's based on what appears to be a near total cluelessness about how Twitter, Google and the internet work. What a clown-boy.

So, not only does this ridiculous lawsuit drive much more attention to the various insults, and even the possibly false statement, it also could open up Woods to a pretty significant anti-SLAPP ruling. We've covered many times how California has a strong anti-SLAPP law that lets people quickly respond when it's clear that the only reason they're being sued is to shut them up. Under California's anti-SLAPP law, whoever is behind Abe List may be able to not just get the case tossed out quickly, but get Woods to pay for his lawyers. What a ridiculous clown-boy move by Woods and his lawyers.

Filed Under: abe list, anti-slapp, clown boy, defamation, hyperbole, james woods, slapp, thin skin, twitter