Devin Nunes Admits That His Bogus Defamation Lawsuits Are Really About Phishing For Journalists' Sources

from the slapp-suits dept

We have already talked about how the two separate defamation lawsuits Devin Nunes has filed against critics and journalists are bullshit SLAPP suits designed to intimidate and attack protected speech. But now Nunes himself has gone even further, admitting out loud that his intent with at least the second lawsuit, against the Fresno Bee, is to force the newspaper to give up its sources:

“I am absolutely sure that they do not want this to get to discovery so that we find out who their sources are,” Nunes told Fox & Friends. “Somebody gave them the phony information that the National Rifle Association was involved with Russian collusion. Somebody gave them the phony information that Cohen was in Prague when he wasn’t.”

Here's the video of him saying that:

So, first of all, the issue with the NRA and Michael Cohen aren't even the subject of the lawsuit he's filed, so that's a bizarre thing to raise unless the intent of the lawsuit is purely performative for an idiotic base who wants to build up some big conspiracy. Second, he's flat out admitting that the intent of his lawsuit is an attack on basic press freedoms like source protection. Remember, this is a Congressman who has sworn to uphold the Constitution, and that includes the 1st Amendment he is attacking with these lawsuits.

Furthermore, in the video Nunes suggests he's not done yet, saying "we're actually going to go after several media outlets." Apparently, he's decided going to war with the First Amendment is a good idea. Also in the video, Nunes claims that he sued Twitter for shadow-banning him, which (1) it did not do, and (2) it legally could if it wanted to, and (3) the shadow-banning, while talked about in the lawsuit, is not actually part of any of the actual claims in the lawsuit.

More and more this appears to be lawsuit-as-performance, allowing Nunes to rile up a base by pretending to take on critics and the media. And that's exactly what the 1st Amendment does not allow -- especially from a public, elected official. The fact that Nunes chose to file these cases in Virginia state court, with its much weaker anti-SLAPP laws, rather than in California's courts (where he, the Fresno Bee, and Twitter, all are) suggests that even he knows these cases wouldn't survive a true anti-SLAPP test. But now that he's out and out admitting that the point of the lawsuits is to go on a journalistic source fishing expedition (even over stories totally unrelated to the one about him) certainly seems to confirm how much Nunes is focused on spitting on the First Amendment that he's sworn to protect.

Filed Under: 1st amendment, anti-slapp, defamation, devin nunes, fishing expedition, free speech, journalism, slapp, source protection, sources

Tennessee Senate Unanimously Passes Actual Anti-SLAPP Bill

from the go-forth-and-opine-freely dept

Some good news is one the way for Tennesseans. Attorney Daniel Horwitz -- who knows his way around stupid libel lawsuits -- sends word that a revamp of the state's mostly-useless anti-SLAPP law is a step or two away from landing on the governor's desk.

The current law does nothing to shield citizens from bogus lawsuits clearly intended to silence criticism. This lack of protection has resulted in a number of merit-less lawsuits being filed. One of the most ridiculous -- a former university program head suing his replacement for things a journalist said -- managed to make its way all the way up to the state's appeal court. In the end, the defendant was awarded $10,000 in legal fees, but none of that was guaranteed when the plaintiff started wasting everyone's time and money.

As the law stands now in Tennessee, only communications to public officials about public entities are shielded from defamation lawsuits. It doesn't cover things like negative reviews of businesses, criticism of any public figure, or -- like the case above -- things defendants never actually said.

The new law would actually function like an anti-SLAPP law should. It would halt discovery until a ruling on the anti-SLAPP motion and allow the prevailing party to recover fees.

Under this bill, if a legal action is filed in response to a party's exercise of the right of free speech, right to petition, or right of association, that party may petition the court to dismiss the legal action. All discovery in the legal action will be stayed upon the filing of a petition pursuant to this bill and the stay of discovery will remain in effect until the entry of an order ruling on the petition. The court may allow specified and limited discovery relevant to the petition upon a showing of good cause.

The petitioning party will have the burden of making a prima facie case that a legal action against the petitioning party is based on, relates to, or is in response to that party's exercise of the right to free speech, right to petition, or right of association. If the petitioning party meets this burden, the court will dismiss the legal action unless the responding party establishes a prima facie case for each essential element of the claim in the legal action.

The bill passed both the state House and Senate, with the Senate sending a message with a decisive 33-0 vote in favor of the bill. If this passes, Tennessee will join the small minority of states willing to protect their residents from frivolous lawsuits filed solely to shut them up.

Filed Under: 1st amendment, anti-slapp, defamation, free speech, tennessee

Devin Nunes Has Filed A Second Bullshit Defamation Lawsuit Telling You All About A News Article He Doesn't Want You To Read

from the has-devin-nunes-read-the-1st-amendment dept

It appears that Devin Nunes wants to become the new poster-child for filing bullshit SLAPP suits to silence and intimidate his critics. Just a few weeks after filing an obvious SLAPP suit against two satirical Twitter accounts, Republican strategist Liz Mair, and Twitter itself, Nunes is back in court again, suing news giant McClatchy and Liz Mair again. The first lawsuit was for $250 million. This one is for $150 million. Both are SLAPP suits that seemed designed to shut up his critics -- especially Mair. Nunes is represented by the same lawyer, Steven Biss, in both cases (Biss has, well, a colorful history).

The latest lawsuit is as equally ridiculous as the first. It is mostly about the very same article that was central to the first lawsuit, an article by The Fresno Bee (a McClatchy-owned newspaper), talking about how a winery that was partly owned by Nunes was involved in a scandal involving cocaine and potentially underage prostitutes on a yacht. The McClatchy article has (from its initial publication), made clear that Nunes' investment in the winery doesn't involve any role with the winery or any management functions:

"Rep. Devin Nunes is one of a few friends (Baggett) invited to invest in the winery in 2005. None of the investors has ever been involved with the management of the company. Robin is the sole managing partner and ultimate decision maker at Alpha Omega," Carter said.

The article has also always made clear that Nunes, as an investor, was unlikely to have any knowledge of the questionable activities associated with the winery:

Limited partners are only liable for the debts equal to their investment in the company, and typically have "little knowledge or participation in the activities of the partnership," according to the California Tax Service Center.

But you wouldn't know any of that from reading the lawsuit, which reads like a conspiracy theory.

Throughout 2018, McClatchy and its reporter, MacKenzie Mays, acting in concert with a Virginia political operative and her handlers, schemed to defame Plaintiff and destroy his reputation. The central purpose of the scheme was to interfere with Plaintiff’s Congressional investigation of corruption by the Clinton campaign and alleged “collusion” between the Trump campaign and Russia during the 2016 presidential election. Using the enormous power of McClatchy’s nation-wide resources, McClatchy and its co-conspirators relentlessly attacked Plaintiff both in print and digitally – falsely and maliciously accusing Plaintiff of horrible crimes and improprieties, falsely attributing to him knowledge he did not have, implying that he was involved with cocaine and underage prostitutes, and imputing to Plaintiff dishonesty, unethical behavior, lack of integrity, and an unfitness to serve as a United States Congressman. Defendants’ statements were knowingly false and grossly offensive. They evince a heedless, palpable and reckless disregard for the truth.

So, a few things about this. First of all, it's not true. As noted above, the article never even came close to implying he had knowledge of the cocaine and underage prostitutes -- and flat out said the opposite was likely true. It's a fascinatingly stupid strategy to make claims in your defamation lawsuit that are literally contradicted in the article you're suing over.

As lawyer Max Kennerly points out, the lawsuit is so stupidly bad, that it claims that the McClatchy reorter, Mackenzie Mays, "chose to emphasize the words "woman," "Devin" and "cocaine." Except, that's not true. The only reason those words are highlighted is because that's how Twitter's search function works. If you search for certain words, Twitter shows them to you in bold. It was not the original tweet. Here's the way it's shown in the lawsuit, with those words bolded:

Here's the actual tweet, which shows those words are not bolded:

And... here's how that very same tweet appears if you search on Twitter for "woman, devin, cocaine":

In other words, it sure looks like Nunes and/or Biss just did a search on "woman, devin, cocaine" and stupidly assumed that because Twitter bolded the search terms, that Mays herself had done so in her tweet. This is stunningly stupid.

And that's not all that this lawsuit gets so incredibly wrong. The lawsuit repeats over and over again that the article suggested Nunes "was involved" in the event on the yacht, even though the article explicitly states otherwise. In trying to claim that people took the Fresno Bee article to mean that Nunes was involved with the party, it points to a reporter from NBC News, Kasie Hunt, saying that "the defamatory meaning of the article was clearly understood by all who read and saw McClatchy's publication," and then uses Hunt's tweet as proof that people took the article to mean Nunes was involved. Except the very tweet by Hunt that is included in the lawsuit flat out states that "Nunes is totally uninvolved in day to day decisions."

In other words, Nunes' complaint's own "evidence" that readers took the article to mean that Nunes was involved literally disproves that by saying he was not involved.

There are some later claims that suggest the original Fresno Bee article had inartfully worded a sentence regarding another controversy at the winery, involving selling wines to Russian clients, in manner that could confuse some readers about the timing of those sales. Specifically, the article originally stated: "Nunes ties to Alpha Omega made national headlines last year because it was discovered the winery sold wine to Russian clients while the congressman was at the helm of a federal investigation of Russian meddling into the presidential election...." The inartful wording is that this sentence could be read to suggest that the wine sales happened while Nunes was helming the investigation. But it could also be read (accurately!) to suggest that the "national headlines" about this story came about while he was helming the investigation. The Fresno Bee later made a few edits to clarify that sentence. Writing a poorly written sentence which could have multiple interpretations (none of which would actually be defamatory) is not defamation. The lawsuit even claims that the Fresno Bee editing that sentence to clarify it without adding an editor's note is somehow "perpetrat[ing] a fraud on its readers."

Other claims are equally bizarre. The lawsuit says that when the Fresno Bee's exec editor, Joe Kieta, stated that the paper "had never had to issue a retraction on its coverage of Nunes," that was "deceitful" because of the clarifying edit discussed above. The lawsuit really tries to claim that a clarifying edit is somehow proof of nefarious intent, rather than just a confusingly worded sentence which can easily be read in two different ways, which the paper quickly changed to clarify.

As for this second attempt at suing Mair, the lawsuit again makes bizarre claims:

Prior to March 19, 2019, Mair’s username on Twitter was “BrandValue$4B”. After Plaintiff filed suit against Mair and others in the Circuit Court for the County of Henrico [Nunes v. Twitter et al., Case CL19-1715], Mair changed her username to “BeingSuedByDevinNunes”. Mair is a political operative and a digital terrorist for-hire. Her job on behalf of her benefactors is to target the opposition, carry out smear campaigns in coordination with third-parties in Virginia and elsewhere in the United States, and, in the process, to create extreme negative publicity for the targets, in this case Plaintiff. Mair is conscious that Twitter is an echo-chamber. She intentionally changed her identity on Twitter to exploit Plaintiff’s name solely to obtain more followers and to maliciously increase the audience, scope and breadth of her false and defamatory statements.

It takes quite a lot of chutzpah to (1) file a bogus SLAPP suit against a critic, and then (2) file a second such SLAPP suit against the same person and argue that her calling attention to the first bogus lawsuit is itself "malicious."

Most of the other claims in the lawsuit are equally bizarre. It argues that the Fresno Bee's Editorial Board suggesting that Nunes should have responded to questions about the yacht/cocaine/prostitutes story is "defamatory by implication." It says that other Fresno Bee stories by Mays about ethics complaints filed with the Office of Congressional Ethics (about Nunes' investment in the winery) were defamatory as well. The lawsuit literally states that "McClatchy had no business republishing the ADLF ethics complaint." It says similar things about other such complaints, including arguing that they were "total shams." Apparently Nunes thinks that he's allowed to dictate McClatchy's editorial policies and that no one is allowed to even write about ethics complaints if Nunes personally deems them to be shams filed by "left-wing" or "left-leaning" groups.

Remember, this is the same Congressman who just a few weeks ago voted for a House Amendment about how free speech should be supported. And now he's suing for $400 million over some critics.

The lawsuit also asks for an injunction ordering "McClatchy to deactivate all hyperlinks to all online articles and all tweets, retweets, replies and likes by McClatchy or any of its agents that contain false and defamatory statements about Nunes." Except, tons of defamation case law have made it clear that such an injunction is unconstitutional. And while there are a few courts that have recently tried warming to the idea of injunctions around defamatory content, they are not that widespread, and the injunctions tend to be very, very limited. For the most part, though, defamation cases can't get injunctions -- just monetary damages.

Either way, this is another SLAPP suit and another attack on free speech by Nunes. If Virginia actually had a strong anti-SLAPP law, one would hope that Nunes would end up on the hook for the legal fees here. Unfortunately, while Virginia recently updated its anti-SLAPP law, it doesn't act the way most anti-SLAPP laws act -- pausing the expensive parts of the lawsuit, and it doesn't require that the plaintiff in the SLAPP suit pay the legal fees of the defendant (though, it does allow the court to decide to award attorneys' fees -- so it's still a possibility).

Still, Devin Nunes, as a sitting Representative in Congress, who has taken an oath to defend the Constitution, is making a total mockery of the First Amendment of the Constitution in suing his critics for clearly protected free speech.

Filed Under: defamation, devin nunes, free speech, liz mair, steven biss, tweets, winery
Companies: fresno bee, mcclatchy, twitter

Court Tosses $11-Million Libel Lawsuit Brought By The 'King Of Bullshit News'

from the viral-crap-farm-wastes-everyone's-time dept

An $11-million defamation lawsuit brought against Buzzfeed by the head of a "news" agency has been dismissed by a New York federal court judge. Michael Leidig, who runs CEN (Central European News), didn't like being hailed as the "King of Bullshit News" by Buzzfeed in 2015. He sued Buzzfeed nine months after the article was published. Leidig, a UK citizen, may have hoped for a more British take on defamation law, but libel law works differently here in the United States.

Judge Victor Marrero said that under New York law Leidig had to prove “fault” on behalf of Buzzfeed and “either negligence or actual malice depending on the status of the libelled party”.

And unlike UK law, the onus in the US was on Leidig to prove the statements were false (rather than on Buzzfeed to prove they were right).

While the judge held that Buzzfeed’s reporting was backed up by evidence he said Leidig and CEN could offer no evidence to support the stories it reported which Buzzfeed said were fake.

At the center of the case were a handful of "news" articles created by CEN. Many of these made their way into a number of tabloids across the world, going viral in the way that fact-checked stories rarely do. The stories included a Chinese man becoming riddled with tapeworms after eating sashimi, a Russian man surviving a bear attack when his Justin Bieber ringtone scared the bear away, and Chinese citizens treating cabbages like pets.

Buzzfeed's long expose of Leidig's handcrafted crap could find nothing to back up the claims made in a number of CEN's biggest internet hits. As the court points out in its decision [PDF], CEN/Leidig claimed Buzzfeed made false statements in its article, but could not provide any evidence that actually countered Buzzfeed's reporting.

BuzzFeed argues that Plaintiffs cannot show the falsity of the allegedly defamatory statements, and thus Plaintiffs' claims must fail. The Court agrees. In the face of repeated instances where BuzzFeed points to specific evidence supporting the truth of the Article, Plaintiffs' sole rejoinder is that neither Leidig nor any CEN employee admitted to knowingly publishing "a fake news story" or to "add[ing] phony quotations to a story."

[...]

Apart from these statements, Plaintiffs provide no evidence that BuzzFeed's eight statements about the CEN stories are false. As such, no jury could find BuzzFeed's statements to be false.

Leidig and his lawyers piled vagueness on top of vagueness after Buzzfeed filed its response to Leidig's complaint, refusing to engage with Buzzfeed's counterarguments.

Plaintiffs' inability to identify a genuine dispute of material fact is best exemplified by their decision to contest only one of the over two hundred numbered paragraphs in Buzz Feed' s Rule 56. 1 Statement. For the remainder of the statements, Plaintiffs rely the blanket denial that "[i]n not challenging [BuzzFeed's] other 215 assertions of fact, [P]laintiffs do not mean to concede that any particular ones are relevant and material to the issues raised on this motion [.]"

At the top of this pile of vagueness is Leidig's cherry: an attempt to expand the claims of his lawsuit while failing to answer Buzzfeed's response. The court says this combination "dooms" the lawsuit and it won't help force Buzzfeed to "defend a moving target."

[W]ith discovery concluded, it is clear that Plaintiffs cannot meet their burden. Because the Court finds that Plaintiffs cannot satisfy the falsity element for any of the eight statements, the Court does not address BuzzFeed's alternative argument that Plaintiffs are public figures and would need to show that BuzzFeed made the statements with actual malice as to their falsity.

From there, the court addresses each of the eight viral CEN stories Buzzfeed claimed were false. In each case, Leidig was unable to refute Buzzfeed's reporting. The court's rejection of Leidig's bullshit defenses makes for a pretty entertaining read, thanks to a rarely-seen combination of legal terminology and tabloid subject matter.

Other than Leidig' s self-serving and discredited testimony, which is plainly insufficient to support a motion for summary judgment, see Celle, 209 F.3d at 188, Plaintiffs offer no evidence regarding the Cabbage Story's veracity.

[...]

Plaintiffs cannot even demonstrate that they investigated the kitten's status before writing the Pink Kitten Story. That is, Plaintiffs (once again) could not depend on their own reporting database to determine who wrote the story and who could verify its contents.

[...]

During his deposition, Leidig could not provide any details regarding the Nude Women Story, including the source of the quotes that were used in CEN' s reporting of the story.

[...]

Unsurprisingly, Leidig stated in his depositions that he does not know where the quotes in the Two-Headed Goat Story came from.

Fun stuff. I mean, not so much for Leidig, but for those of us following along. He can appeal this decision but it's not going to result in a win. However, it will result in more financial pain for Buzzfeed since it will be forced to defend itself against Leidig's baseless claims one more time. New York's weak anti-SLAPP law is no help here, so Leidig isn't going to be paying Buzzfeed's legal fees. Maybe this is all Leidig wants from the lawsuit: to annoy the entity that called him the King of Bullshit. It's definitely a bullshit lawsuit and it has hung around the court system for three years longer than it should have.

Filed Under: defamation, free speech, libel, michael leidig
Companies: buzzfeed

@DevinCow Now Has More Twitter Followers Than Devin Nunes

from the good-job-everyone dept

Yesterday we wrote about the completely ridiculous lawsuit that Rep. Devin Nunes -- a real live Congressional Representative -- filed against Twitter, a political communications expert, and two satirical fake Twitter accounts: one pretending to be his cow, and one pretending to be his mom. As we noted, in the lawsuit itself, Nunes' lawyer points out that the satirical cow had a grand total of 1,204 followers when the lawsuit was initiated. For reference, Devin Nunes' own Twitter account has ~394,000 followers. When we did our post yesterday, @DevinCow was up to 106,000. And now?

Yup, 399k. Actually, as I've been typing this, it's kept going up, but I'm not going to keep taking screenshots. And, yes, the Cow now has more followers than Rep. Nunes himself:

Great job, Devin. You really shut up that satirical cow.

Now, Twitter, how do we go about getting the satirical fake cow a blue checkmark?

Filed Under: censorship, defamation, devin cow, devin nunes, devincow, free speech, nunes effect, satire, streisand effect
Companies: twitter

Federal Judge Tosses Cops' Lawsuit Against A Councilmember Who Said The Police Dept. Had Committed Murder

from the being-offended-isn't-the-same-as-being-harmed dept

A federal judge in Washington just reminded two Seattle police officers that a politician saying unkind things about law enforcement is not defamation. (h/t Peter Bonilla)

Following the killing of Che Taylor by Seattle police officers, councilwoman Kshama Sawant issued statements criticizing the Seattle Police Department for the shooting. From the decision [PDF]:

Approximately five days after the shooting, Sawant appeared before a crowd and media in front of the police department. This was not official city council business, and certainly not a “legislative function.” Sawant, however, implied awareness of inside factual information, and appeared to be making a statement against interest. With gravitas established, she went on to pronounce Che Taylor’s death a “brutal murder” and product of “racial profiling.”

Sawant reiterated these comments throughout the year, according to the lawsuit. However, she never directly accused the two suing officers -- Scott Miller and Michael Spaulding -- of being murderers. Her comments called the shooting a "brutal murder" and implied the PD engaged in biased policing, but at no time did she mention these two officers by name.

The officers argued Sawant's statements impugned them individually even though she only spoke about the police department as a whole. The court says suing as individuals and advancing a group theory of defamation takes far more than the officers showed in their complaint.

[W]whether proceeding under an individual or group theory, Plaintiffs must plead that the statements “specifically” identified or singled them out, or was understood as “referring to [them] in particular.” Sims, 20 Wn. App. at 236.

Here, Plaintiffs have not done so, and the Court finds that Councilmember Sawant’s statements do not satisfy the “of and concerning” requirement. According to the SAC, Councilmember Sawant, while standing in front of the Seattle Police Department, stated that “the police” committed a “brutal murder” which was “racially motivated.” (Dkt. No. 23 at ¶¶ 46, 54.) Councilmember Sawant did not identify Officers Miller and Spaulding by name, nor did she provide any information that would even remotely allow listeners to ascertain their identities, such as their rank or position, division or unit, precinct, or length of time on the force. Finally, Councilmember Sawant’s statements referred broadly to “the police,” the “Seattle Police Department,” and “systematic police brutality and racial profiling.”

Feeling insulted by blanket statements isn't a solid basis for a defamation lawsuit. The officers' attempt to tie reporting from local papers to the councilmember's statements fares even worse.

While Plaintiffs contend that Councilmember Sawant “continually brings it back to these specific officers and this specific incident” her references to “holding the Seattle Police Department accountable for their reprehensible actions, individual actions” and seeking “justice on the individual actions” do not clearly establish Officers Miller and Spaulding as their target. See Sims, 20 Wn. App. at 237 (“[T]he plaintiff must show with convincing clarity that he was the target of the statement.”) (emphasis added).

That the Seattle Times contemporaneously published an article identifying Officers Miller and Spaulding by name does not change this outcome. The “identification of the plaintiff[s] as the person[s] defamed” must be “certain and apparent from the words themselves,” without reference to extrinsic sources. Id. at 234 (emphasis added) [...] Finally, even if Plaintiffs were correct that the references to “individual actions,” coupled with their identification in the Seattle Times, could somehow transform what are otherwise vague and oblique statements into actionable defamation, the SAC does not plead any of these facts.

The officers have already been given one chance to turn their complaint into something actionable. The court isn't willing to give them a third try -- not when it's apparent this defamation lawsuit can't be fixed.

[E]ven if the Court were to grant Plaintiffs leave to amend to include these statements, they cannot satisfy the “of and concerning” requirement, and Plaintiffs make no effort to explain how they could resolve this deficiency, or how additional discovery could possibly uncover additional actionable statements.

The lawsuit is done. Dismissed with prejudice. These cops paid for the chance to learn that people saying unkind things is not actually defamation, especially when the person saying these things never names names. Thanks to this stupid lawsuit, Seattle taxpayers will be doubling up paying for these officers' actions. First, they paid for the city's defense of Councilmember Sawant's non-defamatory statements. They'll be asked to foot the bill again in the near future to defend these officers from a lawsuit brought by the family of the man they killed.

Filed Under: 1st amendment, che taylor, defamation, free speech, kshama sawant, michael spaulding, scott miller, seattle, washington

NYTimes Reporter Gets Bogus Defamation Lawsuit Dismissed As Judge Philosophizes About SLAPP Suits

from the slapp-suits dept

Another day, another SLAPP suit. Back in 2015, NY Times reporter Eric Lipton wrote an interesting article detailing the close ties of the food industry with various academics in ways that some might find questionable. Most of the discussion focused on companies on both sides of the debate around whether or not there should be mandated labels on genetically modified foods (so called GMOs). And while it was one side of the debate that encouraged Lipton to look into this, he used Freedom of Information laws to get emails from a bunch of academic scientists working at state universities. This practice is a bit more controversial than other types of Freedom of Information laws -- which are normally used to access government records from those in actual government agencies. However, in the more recent past, FOIA laws have been used to access academic emails, noting (correctly) that since state universities are technically government entities, those emails are considered public records.

Some of those emails between the academics and industry reps were, perhaps, less than flattering. And so one of the academics -- Dr. Kevin Folta, the chair of the horticultural sciences department at the University of Florida -- decided to sue Lipton and the NY Times for defamation. Somewhat surprisingly, Lipton and the NY Times failed to get the case dismissed at the Motion to Dismiss stage (basically your first chance to get a case tossed), though the Florida court expressed significant concerns about the overall case.

To be sure, an article’s “spin,” grounded in the author’s opinion of the facts, is not actionable.... However, this Court cannot find as a matter of law that all of the statements and their alleged implications are not defamatory. A few of the article’s statements give this Court pause. For example, the article states that Plaintiff conceded that some could view him as “a tool of the industry.” ... But Plaintiff contests this assertion, claiming that Defendants twisted the reporter’s alleged accusation that Plaintiff was a tool of the industry during his interview and falsely reported that Plaintiff volunteered the concession.... Such an admission, reportedly from the mouth of a researcher in academia, could very well injure that researcher’s reputation among his peers. As would the statement that Plaintiff “defended” or “promoted” Monsanto’s products. Viewing the facts in the light most favorable to Plaintiff, this Court is unable to determine as a matter of law whether these statements are defamatory. This Court will not narrow the claim any further at this stage.

The court also had some questions about whether or not Lipton and the NY Times were protected by the fair reporting privilege, which (more or less) says that it's not defamatory for news organizations to report on documents obtained by the government. And, thus, the case had to go through another (expensive) round up to the summary judgment stage, wherein the court, thankfully, dismissed the entire case.

The judge starts by exploring the question of whether or not the quotes from the various emails are covered by the fair reporting privilege, and where the court was not ready to agree that it was in the earlier stage, here it notes it's obvious that these emails are covered by that privilege:

Emails sent to or from a public university email address—and related to the official business of that university—are public records.... Personal emails present on a government agency server are not public records, as “[t]he determining factor is the nature of the record, not its physical location.” ... Plaintiff’s emails are related to official agency business. Although Plaintiff opposes Defendants’ characterization of his emails,... this argument is undercut by his own assertions of the centrality of public and industry engagement to his position at UF. See, e.g., ECF No. 64-41, at 2 (detailing duties and referring to letter from Plaintiff’s “direct supervisor”); ECF No. 64-40, at 1–2 (letter from Plaintiff’s supervisor indicating that his position requires interpreting and delivering scientific results to the public as well as “integrat[ing] with industry and interact[ing] with companies”).

Plaintiff’s argument that his emails are not public records because they are not “intended to perpetuate, communicate, or formalize knowledge of some type” is also unpersuasive.... The court in Shevin recognized that inter- and intra-office memoranda could constitute public records, even when only in draft form or when directed to file.... Only “rough drafts, notes to be used in preparing some other documentary material, and tapes or notes taken by a secretary as dictation” were provided as examples of items falling outside the public records label.

Thus, his emails are public records, and because, as such, they were handed over by the government of Florida, using them is protected by the fair reporting privilege.

In summary, this Court has determined that Plaintiff’s emails, as produced by UF, have both been disclosed by a government agency and constitute public records. As a result, they can form the basis of the fair report privilege.

The next question, though, is whether or not Lipton made a "fair and accurate" report of those emails. The court lumps the various statements at issue in the case into different categories, and looks at each of them, and whether or not the reporting was fair and accurate -- and in each case concludes that it was. The fact that some of the reporting was characterized in a way that Folta didn't like doesn't change that.

Plaintiff would prefer this idea to be communicated more neutrally—perhaps as a statement that he often explains the science of GMO technologies. But this preference is not the yardstick by which statements in a news report are measured. Defendants’ statements must be only “substantially accurate,” and Defendants have a right to focus and color their report to capture and hold readers’ attention.

Some of the claims were that Lipton was selectively quoting the emails, and thus portraying Folta unfairly, but the court doesn't buy it:

Plaintiff objects to Defendants’ omission of several sentences, arguing that the abbreviated version presents the conversation in a completely different light.... The omitted sentences essentially state that the author is “grateful that academics like [Plaintiff] are willing to speak out on the science in this area to the public” and thank Plaintiff for “supporting science and for educating those who are open to science.” ... It is not apparent that the inclusion of these sentences would at all change the effect of the statement in an average reader’s mind. If anything, their inclusion would likely strengthen the theme of industry executives seeing value in professorial allies. As a result, Defendants provided a fair and accurate abbreviation of the email in question, so the statement is covered by the fair report privilege.

More generally, Defendants are under no obligation to include additional information that would portray the Plaintiff in a more favorable light. The press can select the focus of their own publications, without regard to presenting both sides of every issue.

What's quite interesting after that is that the judge goes on a bit of a philosophical discussion about the use of defamation laws these days to silence the press, even alluding to President Trump's wish to "open up libel laws." It's quite an interesting read:

Given the current climate, it is important to recognize the critical nature of the privilege and the necessity of its expansive application. Today’s environment has created a unique prism for defamation actions and the protections intended to ensure a free press. When politicians plan to “open up our libel laws,” and then after winning elections, continue to pummel the press and decry anything unflattering as “fake news,” it is clear that the Fourth Estate is under attack. When those in power describe lawful investigations as witch hunts and “[c]arefully sourced journalism” as “fake news from the enemies of the people,” it is especially important for the judiciary to consider carefully its role in providing the media ample space to exercise their First Amendment rights....

Beyond these verbal and 140-character attacks, there is also evidence to suggest that the media is losing in libel and privacy suits much more often and at a greater cost than in the past. RonNell Andersen Jones & Sonja R. West, The Fragility of the Free American Press, 112 Nw. U.L. Rev. Online 47, 58 (2017). The press has won only 39% of the privacy and libel cases at trial since 2010. Emily Bazelon, Billionaires vs. the Press in the Era of Trump, N.Y. Times (Nov. 22, 2016), https://www.nytimes.com/2016/11/22/magazine/billionaires-vs-the-press-in-the-era-of-trump.html. The average award granted against media defendants in the 1980s was $200,000; the median damage award has now grown to $1.1 million. Id. Today, it seems that super-wealthy individuals—undeterred by the negative outcomes and market forces that used to prevent many defamation suits—can treat “suing the press as an investment” and can pursue their objectives by funding cases and waiting for the right combination of issue, judge, and jury.

The judge then notes that while this is not like a typical SLAPP suit of a wealthy individual trying to silence the press, it's still important to protect a free press in this age:

This case is not one cooked up by billionaire opponents of a free media. Plaintiff seeks only a remedy for the reputational damage he alleges he suffered because of Defendants’ publication. Plaintiff would have this Court apply a narrow understanding of the fair report privilege—either through exempting his emails from the definition of public records or by applying a considerably harsher “fair and accurate” reporting standard. Despite this Court’s sympathy for and understanding of Plaintiff’s case, it cannot act as Plaintiff suggests. A cramped reading of the privilege would undercut its very purpose. It would open the door to far less meritorious suits by far less scrupulous plaintiffs, and it would contribute to the ongoing chipping-away of the rights and privileges necessary to the press’s ability to play its intended role as government watchdog. This Court will not do so.

The court then discusses a few remaining claims that were not from the emails, and thus not subject to the fair reporting privilege, but finds none of them defamatory, noting that they are either opinion or simply "not susceptible of a defamatory meaning" in the case of Lipton saying that Folta had "conceded" that he could be seen as a "tool of industry."

Then, the judge goes back to philosophizing about the state of media and defamation these days:

In today’s world of “fake news” and near-constant attacks on the traditional media, this Court is especially sensitive to upholding the legal protections that enable the press to act effectively in its essential task of policing the government.

Nice to see a judge recognizing these things.

I will note two surprises with this. First of all, even though Florida has a fairly broad anti-SLAPP law, it does not appear that the NY Times and Lipton sought to use it. The judge never even mentions anti-SLAPP issues at all. Perhaps there was a reason for this, but it's still a bit surprising, nonetheless. The second surprise is that there doesn't appear to be any discussion on the "actual malice" standard or whether or not Folta was considered a public figure. Perhaps these issues were decided earlier in the proceedings (I did not go through the entire docket), but it seems like (a) Folta would likely qualify as a public figure, and (b) even given everything else, it's hard to see how Folta could have made it over the "actual malice" hurdle. I guess the judge didn't even need to go there, given that all the claims were easy to dismiss on other grounds.

Overall, a good win for a free press and the First Amendment, though again upsetting that yet another reporter had to deal with such a lawsuit.

Filed Under: 1st amendment, anti-slapp, defamation, eric lipton, foia, free speech, gmos, kevin folta, slapp
Companies: ny times

Appeals Court Upholds Dismissal Of Defamation Lawsuit Against Actor James Woods

from the an-obvious-conclusion,-but-one-that-needed-to-be-reached-anyway dept

James Woods -- saved from a defamation lawsuit by a question mark -- has just had his dismissal affirmed by the Sixth Circuit Court of Appeals. Whatever schadenfreude there was to be enjoyed by seeing Woods hoisted on his own litigious petard was swiftly dispelled by the ridiculousness of the lawsuit, which posited that Woods' careless question tying the plaintiff to [gasp!] Bernie Sanders' presidential campaign rose to the level of actual defamation. All we can hope is Woods handles this victory with a bit of grace, rather than gloating over his opponent's death, should she unfortunately precede him to the Great Beyond.

The lower court did take a couple of shots at Woods during its dismissal of the suit, pointing out he was as uncooperative as possible when the plaintiff, Portia Boulger, tried to serve him. Boulger was offended by Woods' tweet that portrayed her as a Bernie plant trying to sabotage Trump's impeccable reputation by flinging Nazi salutes during one of his rallies. Here's a quick summary of the supposed defamation, taken from the appeals court decision [PDF]:

On March 12, 2016, Twitter user @voxday posted the Nazi salute photograph, together with a photograph of Portia Boulger and a caption identifying Boulger as an “Organizer (Women for Bernie).” (Def. Mot. for J. on the Pleadings, R. 7, PageID 61.) The two photographs and caption were accompanied by the (false) statement, “The ‘Trump Nazi’ is Portia Boulger, who runs the Women for Bernie Sanders Twitter account. It’s another media plant.” (Id.) Shortly thereafter, Woods tweeted the same two pictures, along with a short biography of Boulger, and added: “So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?” (Comp., R. 1, PageID 3.) At the time, Woods had more than 350,000 followers on Twitter.

After being notified by Boulger's lawyer that she was seeking to sue him, Woods issued a retraction and an apology. Boulger argued the damage had already been done. She had been the recipient of several unpleasant communications from Woods' followers, which apparently included death threats.

The Appeals Court also takes a shot at Woods for dodging service from Boulger, pointing out the ridiculousness of him attempting to dismiss a lawsuit he claimed he hadn't been properly served with yet.

As the district court noted, although Woods raised the defenses of insufficient service of process and lack of personal jurisdiction in his answer, he immediately filed a motion for judgment on the pleadings in which the defenses were not included. The motion for judgment on the pleadings was filed several months early—because Woods had not yet been served—and necessarily sought a decision on the merits. Woods’s motion was thus “inconsistent with the idea that the district court lacked personal jurisdiction over the defendant[].”

[...]

The filing of the motion for judgment on the pleadings therefore created a reasonable expectation that Woods would defend the suit on the merits. Any other holding would create a perverse outcome. One can imagine a litigant asking the court to proceed on the merits, and then, only if the court’s decision is unfavorable, seeking to re-assert jurisdictional defenses.

The decision then spends several pages diving into the thick weeds of Ohio defamation law. There's a four-prong test applied at the state level to determine whether or not a question is a "statement of fact." After a lot of discussion, the court finally gets to the point: the question mark -- coupled with the actor's opinionated Twitter feed -- makes it clear Woods was asking followers to make that call themselves, rather than directing them to arrive at a foregone conclusion. That many of them skipped the whole "decide for yourself" stage isn't Woods' fault, nor does it turn a question into a libelous statement of fact.

Here, the tweet at issue is reasonably susceptible to both a defamatory meaning—that Woods was asserting Boulger was the woman giving the Nazi salute—and an innocent meaning—that Woods was merely asking his followers a question. Because Woods’s tweet could reasonably be read to have an innocent meaning, under the innocent construction rule the tweet, as a matter of law, is not actionable.

There's also the matter of context. As the court sees it, the opinionated Woods could get away with posing a question like this. The New York Times perhaps not so much.

A review of Wood’s Twitter feed from March 12, 2016, shows that although he posted news articles, his tweets were frequently accompanied by his own colorful commentary. [...] These tweets illustrate that a reasonable reader of Woods’s tweets on March 12, 2016, likely knew that he made frequent use of sarcasm, exaggeration, and hyperbole—characteristics more likely seen in an opinion, rather than a statement of fact. See Scott, 496 N.E.2d at 708. Thus, the general context could lead a reasonable reader to believe the tweet at issue was not a statement of fact.

[...]

Twitter is a medium for users to express both opinions and disseminate news. For example, a Twitter user who tweets his or her thoughts on various celebrities is an account that is more analogous to an editorial section of a newspaper. Cf. Vail, 649 N.E.2d at 185–86 (finding that a column that appeared on the Forum page of the newspaper and titled “Commentary” gave a reader the message that the column would convey the personal opinion of the writer, as distinguished from a news story). But the Twitter account of an online news source, such as the New York Times, is not meaningfully distinguishable from a hard copy news story. Consequently, it is clear that Twitter can be used to disseminate both factual accounts and assertions, as well as commentary and opinion.

This breakdown of Twitter seems elementary and even a bit unnecessary, but the court is reminding readers (and plaintiffs) that context matters. It always does. Unfortunately, many plaintiffs in defamation lawsuits want the court to strip commentary of its context to make it easier for them to secure a victory. Fortunately, our courts have generally been very protective of speech and extremely hesitant to hand down rulings that could restrict the free exchange of commentary and opinion. It's unfortunate Woods' followers decided his somewhat disingenuous question granted them permission to harass and threaten Boulger. But those disgusting responses are the responsibility of the disgusting people making them. The court made the right call, ensuring Twitter in all its greatness and awfulness remains a freewheeling, often-horrifying marketplace of ideas.

Filed Under: 6th circuit, anti-slapp, defamation, free speech, james woods, portia boulger

VP Of 'Students For Free Speech' Sues Critic For (Among Other Things) Calling Him A 'Free Speech Asshole'

from the free-speech-for-me,-not-for-thee dept

What is it with these Canadian "free speech defenders" suing their critics for their free speech? We've already covered the ridiculous lawsuits by Jordan Peterson and Gavin McInnes against some of their critics, and now we can add a lawsuit by Michele Di Franco, whose Twitter profile notes that he is the "VP Finance" for the "uOttawa Students for Free Speech" club.

You would think that, as such, Di Franco would recognize that others' free speech might sometimes reflect negatively on him, and be able to take it. But, nope. In January, Michael Bueckert wrote an article on Medium discussing how Doug Ford's government did not appear to consult many actual students in forming a plan to defund many student organizations at universities. Bueckert's article notes that it appears the only students who were consulted were the University of Ottawa Free Speech club, based on a roundtable it held that Doug Ford attended. Bueckert had some significant concerns about this, noting that (1) a club like that is not representatives of students and (2) Di Franco appeared to regularly associate with various individuals and groups whose focus was often on supporting the right to spew bigotry on campus. Bueckert tweeted out his article a bunch, often referring to the "alt-right" and in one case talking about "free speech assholes who are freely giving these white supremacists a paid platform."

Di Franco lawyered up, sending a threatening cease and desist, demanding that Bueckert take down the post, stop referring to Di Franco as anything remotely connected to bigotry or the alt-right, provide a written apology and retraction, and pay $2,000 to the lawyers. Bueckert hired some lawyers of his own to respond. It's a good response:

I have had an opportunity to review your client’s claims. It appears as though there has been a misunderstanding. My client formulated his opinion that your client’s politics and the political values of his organization are fairly described as ‘alt-right’ or sympathetic to the alt-right on the basis of your client’s repeated promotion and endorsement of various public commentators, politicians and other personalities that openly espouse either far-right or alt-right views and are generally regarded as representing or associated with the alt-right, despite their personal rejection of that label. These individuals include Gavin McInnes, Janice Fiamengo, Jordan Peterson, Tim Moan, Joseph Watson, Steven Crowder, Jack Posobiec, Mike Cernovich, Milo Yiannopoulos, Lauren Southern, James Damore, and Maxime Bernier, among others.

Your client has never made any public attempt to disassociate himself with the discriminatory views espoused by these commentators. The only information available has led my client to fairly infer that your client endorses the express and implicitly discriminatory views of these individuals.

Indeed, the response letter includes nine different examples of Di Franco expressing ideological alignment with people in that list, and notes that even denying being a member of the alt-right has become something of a cliche among those who most of the rest of the world consider in their opinion to be members of the alt-right.

And, of course, in response to all of this, Di Franco sued Bueckert for defamation. Among the claims in the lawsuit, it says that merely calling Di Franco a "free speech asshole" is defamatory. Really.

This lawsuit would be laughed out of a US court. First of all, nearly all of the statements are clearly ones of opinion. Second, many of them (including the "free speech asshole" one) are from tweets that don't even mention Di Franco, but are talking about the types of people that Di Franco has associated with. And, yes, it's not fun at all being called an asshole or a bigot or whatever, but if you're really going to be out there claiming to be in favor of "free speech," then you kinda have to suck it up when people say their not-so-nice opinions about you. Otherwise, it does kind of make you a free speech hypocrite, and quite possibly -- in my opinion -- a "free speech asshole."

Since this is Canada, rather than the US, defamation law is not quite as clear-cut -- though hopefully Bueckert still wins. It is true that the bar for defamation is much lower in Canada than in the US, but "fair comment" remains a defense against defamation, and that includes stating opinions about matters of public interest. Moreover, the province of Ontario (where the lawsuit was filed) has a pretty good anti-SLAPP law (stronger than the anti-SLAPP laws of some US states) that will likely be the first line of defense and, hopefully, will get this case tossed out quickly with Di Franco on the hook for Bueckert's legal fees.

Of course, as we see every time one of these situations shows up, supporters of those suing suddenly start twisting themselves into amazing yoga postures trying to "defend" suing people for their opinions. Among them is Jonathan Kay, former opinion writer at Canada's National Post and now an editor of Quillette. Kay has managed to rise above some popular free speech bad-takes in the past: though he's seriously concerned about "mob-based" censorship of conservative ideas, he correctly recognizes that Trump is a more direct threat to true free speech, and though he's seriously concerned about social media censorship, he correctly notes that private platforms can kick off whoever they like. But when it comes to the use of libel lawsuits to silence critics, he appears to be going with the angle that freedom of speech isn't relevant to civil actions, and that it's wrong to think a dubious libel lawsuit reflects on someone's commitment to free speech:

Alas, I imagine that, as with the other cases mentioned earlier, those who align in viewpoints with Di Franco and others will continue to twist themselves around in trying to justify this use of the government to silence a critic, while at the same time pretending to still support "free speech." But, just to be clear: suing other people for saying their mean opinions about you is not supporting free speech. It is very much anti-free speech and, again in my opinion, kinda makes you an asshole.

Filed Under: canada, defamation, doug ford, free speech, free speech asshole, michael buekert, michele di franco, students for free speech

Company Wants New Hampshire Supreme Court To Let It Sue Anyone Who Calls It A Patent Troll

from the oh-really-now? dept

Over the years, there have been a few attempts -- usually by companies that most of us would call patent trolls -- to argue that calling a company a patent troll is defamatory. These arguments rarely get very far, because they completely misunderstand how defamation works. However, a company with some questionable patents around bank ATMs, called ATL, tried a few years back to sue a bunch of its critics over the "patent troll" name. Thankfully, the local court in New Hampshire correctly noted that calling someone a patent troll is protected speech under the First Amendment and is not defamatory.

ATL decided it was going to keep trying. Tim Lee, over at Ars Technica, recently wrote about oral arguments in front of the New Hampshire Supreme Court in this case.

In Thursday's oral arguments at the New Hampshire Supreme Court, ATL attorney Steve Gordon urged the New Hampshire justices to overrule that initial dismissal of the lawsuit.

"The gist or sting of the statements at issue was that my clients were extortionists, shakedown artists, preying on small banks seeking to license patents that were of no value," Gordon said.

Gordon argued that none of this was true. Critics said ATL wasn't selling any products, but Gordon noted that his client did try to commercialize his patents many years ago. Critics said ATL was engaged in a shakedown. "This is not a shakedown," Gordon said.

This seems like an incredibly iffy argument. There have been many, many cases on similar types of claims, and such statements are not defamatory, as it's not possible to prove them directly "true" or "false" since they're very much in the eye of the beholder. The Phantom Touring case is a key one here, where the court ruling noted:

Many of the statements cited in the complaint and appellate brief either constitute obviously protected hyperbole or are not susceptible of being proved true or false. Such, for example, is the language in "The phantom of the 'Phantom' " quoting a critic who described the Hill production as "a rip-off, a fraud, a scandal, a snake-oil job." Not only is this commentary figurative and hyperbolic, but we also can imagine no objective evidence to disprove it. Whether appellant's "Phantom" is "fake" or "phony" is similarly unprovable, since those adjectives admit of numerous interpretations.

I can't see how ATL can get past that bar.

Another standard seen in weak defamation cases is seizing on a small error of terminology. In this case, back in 2012 ATL had key claims in some of its patents invalidated in the federal circuit. That didn't mean the entire patent was invalidated, but invalidating key claims can more or less kill off a patent. In this case, the defendants said that the patents had been invalidated, when it was actually just some key claims. ATL's lawyers argue this is defamatory. It is not.

At one point, Gordon argued that one of the defendants had defamed ATL by claiming its patents had been invalidated. Gordon said that this was false and defamatory because only certain claims of its patents had been invalidated; others remained valid.

But justices seemed skeptical. "Wasn't the gist of the statement correct?" one justice asked.

Indeed, having the gist of a statement being correct is a defense against defamation claims. That's why I find it kind of amusing that up above, ATL's lawyer used "gist" in suggesting that calling ATL a troll was defamatory. If you're the defamation plaintiff, you're generally not supposed to be the one bringing up "the gist."

Of course, from the hearing, it really does sounds like (note to ATL lawyers: this is my opinion) ATL is just trying to cost the defendants as much as possible, as its focus seems to be getting past the Motion to Dismiss stage and into discovery -- which can be the most expensive part of a case. Though, as Lee notes, ATL's reasons for wanting to move the case into discovery seems to be... because they want to get into discovery.

Gordon argued that ATL should have gotten a chance to build its case via discovery before a judge decides whether the case has merit. But when a justice asked what information he'd like to seek during the discovery process, the attorney's answer was a little vague. Gordon said that he'd like to depose defendants, asking questions like "what were the facts that you relied upon when you made a statement of shakedown?"

But it's not clear that these kinds of questions would be all that illuminating. The core of the defendants' case is that terms like "shakedown" are fundamentally matters of opinion. Courts have long held that opinionated terms like "rip-off" and "snake-oil" could not be defamatory. The defendants argue that labeling someone a troll or accusing them of blackmail falls into the same category.

Never read too much into how judges behave during oral arguments, but at least from Tim's reporting, it sounds like they're skeptical here. And they should be. Calling a company a patent troll is not defamatory. Nor is saying a patent was invalidated when it was really key claims. And trying to drive up legal fees by dragging a questionable case into discovery is quite obnoxious and an attempt to bully a company through abusive litigation.

Filed Under: 1st amendment, defamation, free speech, new hampshire, patent troll
Companies: atl