Whistleblower: Police Officers Celebrated Shooting People With Badge-Bending, BBQs

from the jesus-fucking-christ-can-you-try-not-being-awful-just-for-a-moment dept

There's a lot of competition for Worst Police Force in America. The NYPD is known for its casual approach to human life and its antagonistic approach to public records requesters. The Chicago PD operated its own black site to separate residents from their rights while interrogating them. The Pasco County Sheriff's Department thinks it should be in the business of turning students into criminals. The list goes on and fucking on.

Enter the Vallejo (California) Police Department -- one that has apparently gamified the shooting of residents.

For a generation, a secretive clique within the Vallejo Police Department has commemorated fatal shootings with beers, backyard barbecues, and by bending the points of their badges each time they kill in the line of duty, an investigation by Open Vallejo has found. The custom was so exclusive, some officers involved in fatal shootings were never told of its existence.

First you have to shoot someone. Then the others who are in on this have to determine whether you can be trusted.

Sources say not every officer who kills is invited to participate in the Badge of Honor ritual. The vetting process is stringent, if straightforward. Those who kill meet its first requirement. Those who can be trusted not to talk fulfill the second.

Open Vallejo cites the controversial shooting of Willie McCoy as the impetus for this anonymous whistleblowing. McCoy was shot by Vallejo police officers in a Taco Bell drive-thru, where he had apparently passed out. Restaurant employees called the PD, which sent officers to perform a wellness check. Instead of seeing whether anything was wrong with McCoy, officers surrounded the car and killed McCoy when he awoke and moved one arm towards his shoulder. Vallejo officers fired 55 rounds in less than 3.5 seconds, killing McCoy.

It wasn't the first time Vallejo cops emptied their magazines into someone they were supposed to be arresting or helping. At the tail end of a chase involving an alleged robbery suspect, Vallejo officers shot the suspect -- who was carrying a knife and slowly moving towards them -- 41 times.

According to Open Vallejo's source, one of McCoy's killers -- Officer Ryan McMahon -- got a bend on his "star" for this shooting. This would be his second "bend" in less than a year.

Vallejo police officers love using their guns to solve problems. Even if you doubt the anonymous whistleblower's claims of in-house celebrations for shooting citizens, this statistic is chilling:

At the time of [Captain John] Whitney’s firing, nearly 40% of officers on the force had been in at least one shooting, Open Vallejo research shows. More than a third of those had participated in two or more. The department employs about 100 sworn personnel.

That's well above the 27% of officers who have self-reported firing their weapons in the line of duty. This disparity begs the "chicken or egg" question. Are Vallejo cops violent because there are informal rewards for being violent? Or did this streak of violence lead to the unofficial rewarding of shooting people?

The captain namechecked in this quote was forced out of the department after opening an investigation into the shooting of Willie McCoy. Vallejo's police culture doesn't welcome internal or external scrutiny -- like pretty much every other law enforcement agency in the nation.

Captain Whitney's whistleblowing didn't start there. It wasn't just the Willie McCoy shooting. It was also the blowback from another Vallejo PD failure -- one ignored off by officers and supervisors, including the then-head of the PD.

[Current police union president Mat] Mustard was the lead detective on the 2015 Denise Huskins kidnapping case Vallejo police mistakenly called a hoax.

Whitney says he was in the room when Chief Bidou allegedly instructed Lt. Kenny Park before a now infamous press conference.

"The fact that we've essentially wasted all of these resources for really nothing is upsetting," said Lt. Park during the 2015 presser.

"Chief Bidou told Lt. Park to burn that b****," said Whitney.

Huskins recorded this exclusive statement for ABC7 News: "In their eyes, if you're a woman - you're another "bit**" to burn; if you're a person of color - you're another 'criminal' to kill. It's horrific, and the community of Vallejo deserves better."

That's the mindset of this PD, which has terrorized residents for years under the guise of preserving law and order. This is the way it has always been.

The failure to hold police officers accountable has been an issue in Vallejo for as long as anyone can remember. According to confidential city documents, twenty-five years ago one officer shot another while drinking in a bar, and wasn’t fired. A cop with a drug problem kept his job even after he was caught stealing from evidence lockers and was arrested for prescription fraud. Twenty years ago, a lieutenant told a new officer named Joseph Iacono that, when a suspect runs away, the officer should use enough force to put the man in the emergency room. To see if Iacono could fight, he was placed in a holding cell with an uncoöperative suspect. Iacono is now the department’s Lead Force Options Instructor and, according to the documents, likes to say, “It can’t be awful if it’s lawful.”

The Vallejo PD has cost city residents $16 million in the last ten years. This may not seem like much when compared to the amounts racked up by law enforcement agencies in large cities like Chicago and New York City. But when broken down to a per officer cost, Vallejo takes the lead in costing those paying their salaries the most. And -- despite actions taken by the city's insurer -- police officers continue to make things worse for those that manage to survive their violence.

Police violence has cost the city so much money that, in 2018, the statewide insurance pool that helped pay its legal fees took the unprecedented step of raising Vallejo’s annual deductible, from five hundred thousand dollars to $2.5 million, prompting the city to find another insurer. Vallejo is currently facing at least twenty-four use-of-force cases, which it estimates could cost some fifty million dollars.

Even if Vallejo officers aren't bending their badges in celebration of shooting citizens, they're still shooting citizens far more often than cops in other departments. A lot of whistleblowing has occurred over the years in relation to this department. And so far, it hasn't changed the culture.

The Vallejo PD is out of control. Swapping parts out isn't going to change it. There's a new deputy chief helping preside over Vallejo's squad of uniformed killers but no one should be holding their breath waiting for internal reform. The "new" sub-boss is the same as the old boss: a department rehire. Joseph Kreins presided over the department as chief from 2012-2014. Dusting off someone who failed to control a department for two years doesn't change anything. The city's cops will continue to kill and maim until someone dares to rein them in.

And it appears no one will -- at least not immediately. Between retrofitting a deputy chief and pretending state AG Xavier Becerra -- the same AG who fought a new police accountability law in court -- will get to the bottom of the PD's endemic violence problem, city residents haven't been given anything to hope for. The shootings will continue until law enforcement morale improves.

Filed Under: california, police, police brutality, shootings, vallejo, violence

Study Shows California Telcos Are Simply Letting Their Networks Fall Apart

from the do-not-pass-go,-do-not-collect-$200 dept

On the one hand, it's understandable that US phone companies companies don't want to maintain aging copper phone networks in the wake of sagging usage. On the other hand, traditional phone networks are very much still in use (especially among vulnerable elderly populations), many of these DSL lines remain the only option consumers can get thanks to spotty US broadband deployment, and much of the phone and DSL infrastructure was heavily subsidized by American taxpayers. Oh, and as Texas just realized, many of these older copper phone lines still work during disasters, when internet voice services don't.

As such, there are numerous regulations that prevent these companies from just severing these lines completely. But US telcos, tired of traditional phone and residential broadband service, want to shift focus. So instead of a responsible transition plan (one that might mandate even coverage of wireless or fiber broadband upgrades they don't want to perform), many of these companies are simply letting the networks fall apart. And refusing to repair the lines when they fail. In large part because they know US state and federal regulators will (usually) be to chickenshit to actually do anything about it.

In California, a report requested by the government found the same thing throughout the state. The April 2019 report, only just released after regional incumbents AT&T and Frontier tried to block it, found that as customer rates skyrocketed for both AT&T and Frontier, both companies increasingly cut back on infrastructure upgrades, repairs, and maintenance over the last decade. The report also found that AT&T has increasingly engaged in "redlining," or the act of failing to meaningfully upgrade lower income and minority communities at the same rate as more affluent neighborhoods:

"...AT&T's investment policies have tended to favor higher-income communities, and have thus had a disproportionate impact upon the state's lowest income areas. For example, the weighted average 2010 median annual household income for... areas that had been upgraded with fiber optic feeder facilities to support broadband services was $72,024, vs. only $60,795 for wire centers without such upgrades. Using 2010 US Census data, we find a clear inverse relationship between household income and all of the principal service quality metrics. Wire centers serving areas with the lowest household incomes tend to have the highest trouble report rates, the longest out-of-service durations, the lowest percentages of outages cleared within 24 hours, and the longest times required to clear 90 percent of service outages. The opposite is the case for the highest income communities."

This lack of reliability of infrastructure, combined with steadily skyrocketing prices, runs in stark contrast to what we should actually be doing in the face of a global pandemic and climate destabilization. And of course it's far from the first time these two companies have been found to be utterly neglecting their networks. It's why a 90 year old man just had to take out a $10,000 newspaper ad just to get AT&T to finally upgrade his aging DSL line to fiber. And it's far worse in places like West Virginia, where Frontier's apathy toward its own customers (or basic upgrades and maintenance) is fairly legendary.

Again, this is what natural monopolies do in the face of limited competition and regulatory capture. Obtain a regional monopoly, do the bare minimum to keep that business afloat (while you focus on other ambitions like mindless media mergers), then throw a few thousand in PAC donations at local politicians so they pretend that none of this is happening.

The answer now is: what will California regulators actually do about it? And even in one of the most "progressive" states in the nation, the answer will be jack shit. It's fairly trivial for AT&T and Frontier to simply claim these networks don't matter because they're old, or to try (as AT&T does in the link above) to insist any data that suggests they're anything less than the pinnacle of corporate responsibility is fraudulent.

Filed Under: california, competition, copper networks, decay, infrastructure
Companies: at&t, frontier

California Poised To Defeat Broadband Industry In Scrum Over Net Neutrality

from the round-and-round-we-go dept

You'll recall that after the Trump FCC effectively neutered itself at telecom lobbyist behest in 2017, numerous states jumped in to fill the consumer protection void. Most notable among them being California, which in 2018 passed some net neutrality rules that largely mirrored the FCC's discarded consumer protections. Laughing at the concept of state rights, Bill Barr's DOJ immediately got to work protecting U.S. telecom monopolies and filed suit in a bid to vacate the rules, claiming they were "radical" and "illegal" (they were neither).

And while the broadband industry had a great run during the Trump era nabbing billions in tax breaks and regulatory handouts, that era appears to be at an end.

Earlier this month the Biden DOJ dropped its lawsuit against California, leaving the industry to stand alone. Now a Judge has refused the broadband industry's request for an injunction, allowing California to finally enforce its shiny new law. Worse (for the broadband sector), Mendez also made it very clear that while the case isn't over yet, the broadband industry isn't likely to win. He was also less than impressed by the broadband industry's claim that because the broadband industry has tried to behave as it awaits a legal outcome, that this somehow meant net neutrality rules weren't necessary:

"I have heard that argument and I don’t find it persuasive,” said Mendez. “It’s going to fall on deaf ears. Everyone has been on their best behavior since 2018, waiting for whatever happened in the DC Circuit [weighing the FCC’s repeal of net neutrality]. I don’t place weight on the argument that everything is fine and we don’t need to worry."

As we've noted a few times, there's a misinformed refrain in some tech policy circles that goes something like this: "the internet didn't immediately implode in a rainbow, therefore net neutrality's repeal must not have mattered." That's wrong for several reasons.

One, ISPs are still violating net neutrality, they're just being more clever about it (see: AT&T only charging you broadband overage fees if you use a competitor's service). Two, the only reason ISPs behaved half as well as they did is because they were awaiting a federal legal ruling, and worried about running afoul of state net neutrality rules. Three, killing net neutrality didn't just kill "net neutrality," it dismantled the FCC's consumer protection authority over everything from anticompetitive behavior to billing fraud. If you're applauding the government ignoring the public and neutering itself because some Comcast lobbyists told it to, you might not be half as clever as you think you are.

As you might expect, a coalition of broadband industry policy and lobbying organizations like US Telecom were quick to complain about the ruling, whining that it creates a haphazard patchwork of state protections:

"A state-by-state approach to Internet regulation will confuse consumers and deter innovation, just as the importance of broadband for all has never been more apparent,” a coalition of broadband industry organizations said in a joint statement. “We agree with the Court that a piecemeal approach is untenable and that Congress should codify rules for an open Internet."

Of course the only reason we're now looking at a fractured, state-by-state approach to consumer protection is because the broadband industry keeps suing to dismantle popular and modest federal rules. The industry sued (successfully) to kill the FCC's flimsy 2010 rules, despite the fact that had giant loopholes and didn't even cover wireless. Then, when the Wheeler FCC passed tougher rules (but still arguably thin by international standards), the industry sued again. When they lost that case, they got the Trump FCC to ignore the public and kill the rules, using an ocean of sleazy tactics--including paying firms to use fake and dead people--to pretend it was a good idea (something the press and some telecom policy wonks seems oddly intent on forgetting).

The industry has long proclaimed that it wants Congress to pass consistent rules to end this ongoing game of regulatory ping-pong at the FCC. Yet the industry knows full well that our gridlocked Congress is so slathered with telecom campaign contributions that's never going to happen. If a federal net neutrality law does get passed, it's extremely likely it will be ghost written by AT&T and Comcast. As a result it's inevitably going to include numerous loopholes and caveats, while pre-empting any tougher, more consensus-driven state or federal solutions. This exact same gamesmanship, it should be noted, is playing out simultaneously surrounding efforts to pass meaningful broadband privacy rules.

While the industry is likely to appeal any looming loss dragging this case out for much longer than needed, it likely isn't going to matter. There's every indication that the Biden FCC is going to restore net neutrality. But that can't happen until the Biden administration and Congress finally get around to appointing and seating a third Democratic FCC Commissioner, breaking the current 2-2 partisan Commissioner gridlock.

While policy wonks, the press, and the public are clearly fatigued by the endless legal skirmishes surrounding net neutrality, there's only one reason they continue: a broadband industry that has fought tooth and nail, using every gross tactic in their playbook, against even the most modest consumer protection guidelines. If the heavily monopolized US telecom industry truly wants to put this issue to bed, it could perhaps stop spending millions of dollars every year to dismantle even the most modest attempts at state or federal oversight.

Filed Under: california, fcc, net neutrality

Court Tosses Devin Nunes' Silly SLAPP Lawsuit Against CNN

from the finally dept

As you may recall, Rep. Devin Nunes has spent the last few years suing all sorts of critics and journalists, in a vexatious bout of abusing the courts to try to stifle criticism. Most famously, Nunes sued a satirical cow on Twitter (that case is still ongoing). But in December of 2019 he sued CNN. As we noted at the time -- despite a weird column by a media critic at the Washington Post saying that this case was "halfway decent" -- the case seemed like the dumbest Nunes' suit we'd seen so far.

The filing was more performative nonsense, which seemed much more focused on spewing utter rubbish rather than making real defamation arguments. For example, a key part of the defamation claim involved statements on CNN about Nunes' contacts with Lev Parnas, the former Rudy Giuliani henchman who was arrested as part of a plot to get information from Ukraine to embarrass Joe Biden. Nunes' lawsuit argued that CNN defamed him... by getting the date wrong as to when Nunes and Parnas communicated. But... even if the date is wrong, that's not defamation. The case, like most other Nunes' cases, was filed in state court in Virginia, but thankfully, it was kicked up to federal court in NY. Bizarrely, Nunes went on TV claiming that CNN would be so scared to face him in court that the company likely wouldn't show up, talking tough on Fox News about how he was going to have to "track them down" to "hold them accountable." In fact, Nunes' "bet" Sean Hannity that CNN would "run" from this lawsuit and "not show up in court."

I don't think Hannity "took" the bet, but he would have won. CNN went to court and has now won the case. Easily. Let's just say Judge Laura Taylor Swain is not impressed by Nunes and whatever nonsense his lawyer, Steven Biss, presented to the court. Much of the opinion focuses on "choice of law" issues -- i.e., which state's defamation laws are at play here. There are four choices: Virginia, Washington DC, New York, or California. Nunes, basically wanted to apply any law except California's. You might think that's odd, because he (theoretically, at least) "lives" in California. He represents a district in California, and if any "damage" were actually done to his political chances, that damage would be done in California. But Nunes does not like the defamation laws of his own state -- in part because California requires that before you sue someone for defamation you first ask them to retract what they've written.

The judge notes that Nunes made the choice to file this case in Virginia, and it appears that his lawyer, Steven Biss, is so bad at this that he didn't even understand how Virginia's choice of law principles work -- because they make it pretty damn clear, that the proper state's laws to use are... California's.

Nunes makes two arguments against the application of California law, and in support of the application of either New York or Virginia law. In his supplemental briefing, Plaintiff argues that New York law should apply because CNN has a substantial presence there and Ward and Cuomo, who are generally located in New York, were present there when the statements were made. (See docket entry no. 43 at 5-6.) As a result, Plaintiff argues, the allegedly defamatory statements should be deemed to have been published exclusively in New York. As explained above, however, Virginia’s choice of law rules govern and, in Virginia and other lex loci jurisdictions, the place of publication is normally the location where statements are heard and understood. See Katz, 332 F. Supp. 2d at 915. In a multistate, mass media defamation case, it is impractical to determine that specific location; lex loci jurisdictions typically look in multistate circumstances to the place where the plaintiff suffers the most harm, which is usually held to be the state in which the plaintiff is domiciled, presumably based on an assumption that the information would be of most interest to third parties in that state and would be opened and read by a substantial number of persons there. Accordingly, the governing choice of law rule does not contemplate the application of New York state law based on the location of the reporters and the news organization.

In response to the argument that the laws that should be used are where the plaintiff suffered "the most harm" Nunes tried to argue that the real harm was in Virginia (?!?) or DC, not his "home" state of California. That's kinda telling:

Plaintiff further argues that, if the Court were to look to the place where he suffered the greatest injury, the laws of either Virginia or the District of Columbia should apply because that is where he performs his role overseeing the activities of the Intelligence Community.

But the judge basically says "lol, no."

Nunes does not proffer any additional facts that support his conclusory statement that he suffered substantial injury in either Virginia or District of Columbia, much less a greater injury there than in the home state that sends him to Congress as the representative of his district. His Amended Complaint alleges that he is a citizen of California and details his long family ties with, and extensive political service in and for, the state of California and its citizens.

Having considered persuasive authority and the legal and practical considerations underpinning Virginia’s application of the lex loci doctrine, the Court concludes that the Virginia Supreme Court would likely “follow the lead of other lex loci jurisdictions and pinpoint the place of greatest harm in this multistate libel case in the district where the plaintiff was domiciled, absent strong countervailing circumstances.” Hatfill v. Foster, 415 F. Supp. 2d at 365. Plaintiff has not alleged any facts or “strong countervailing circumstances” that militate against finding that Nunes was injured primarily in California, the state of his domicile, and where he stands for election. He has proffered no facts from which the Court could find that there are extraordinary circumstances indicating that he suffered greater harm, i.e., that the allegedly defamatory material garnered greater third-party attention in a single jurisdiction other than his home state. Accordingly, the Court finds that California law governs Plaintiff’s claims.

And, so, California defamation laws apply, and California's laws require you to first ask for a retraction. Nunes tries to argue around that... but not very successfully.

Plaintiff advances four arguments against the application of the retraction statute to his defamation claims. First, he contends that the retraction statute does not apply to the article and television news program at issue because the statute on its face is limited to “daily or weekly news publications [and] radio broadcasts.” (Opp. at 6.) This argument is contrary to the plain language of the retraction statute, which specifically defines “‘[d]aily or weekly news publication’ [to] mean[] a publication, either in print or electronic form, that contains news on matters of public concern and that publishes at least once a week.”.... Given that CNN publishes multiple times a day and published the article in question in electronic form, this argument against the statute’s application is without merit.

Next, Plaintiff argues that the retraction statute does not apply to claims of defamation per se.... In support of his argument against the application of the statute to Plaintiff’s claims, Plaintiff cites inapposite cases that do not involve the retraction statute. See Todd v. Lovecruft, No. 19-CV-01751-DMR, 2020 WL 60199, at *20 (N.D. Cal. Jan. 6, 2020) (holding, in case involving application of anti-SLAPP statute to allegations of sexual misconduct, that common law elements of defamation cause of action did not require plaintiff to plead special damages for claim of defamation per se); Clark v. Hidden Valley Lake Ass’n, No. 16-CV-02009-SI, 2018 WL 3069285 (N.D. Cal. Apr. 18, 2018) (upholding damages verdict despite lack of proof of actual damages, where plaintiff had prevailed on claims of defamation per se). Neither of these cases involved news media publication of the allegedly defamatory material, nor did any of the authority Plaintiff cited in this connection construe the retraction statute.

The retraction statute expressly applies to “any action for damages for the publication of a libel in a daily or weekly news publication,” providing that “plaintiff shall only recover special damages unless a correction is demanded and is not published or broadcast,” and does not distinguish or exempt claims of defamation per se....

[....]

Finally, Plaintiff argues that the retraction statute is inapplicable because it violates Virginia’s public policy by “impos[ing] an added statutory requirement in defamation cases that has never been adopted by the Virginia General Assembly.” (Opp. at 8.) Plaintiff offers nothing more to support this assertion, and does not even specify the public policy that he believes would be violated by the application of California law. A mere difference between the respective defamation laws of Virginia and California “does not, ipso facto, justify refusal to adhere to comity principles.”

And thus, the court finds that Nunes failed to follow California defamation law and first demand a retraction. That means he can only plead special damages. "Special damages" are, basically "actual" damages -- a direct monetary loss that the plaintiff can attribute to the defendant's actions. And, guess what? Steven Biss's lawsuits didn't quite have that (because there were no actual damages):

Plaintiff’s AC fails to meet the minimum pleading requirements for special damages established by Rule 9(g). Plaintiff’s original Complaint, filed on December 3, 2019, made no mention of special damages at all.... CNN moved to dismiss the Complaint on substantially the same grounds as those presented in this Motion, thus alerting Plaintiff to CNN’s arguments and to a potentially critical deficiency in the Complaint. (See docket entry no. 15.) Thereafter, Plaintiff amended his Complaint to claim he has “suffered presumed damages and actual damages, including, but not limited to, insult, pain, embarrassment, humiliation, mental suffering, injury to his reputation, special damages, costs, and other out-of-pocket expenses, in the sum of $435,000,000, or such greater amount as is determined by the Jury.”

While the AC uses the phrase “special damages,” refers to “out of pocket expenses,” and includes a dollar amount that encompasses the entire array of damages claims, it provides no further indication of the basis or quantum of any special, or economic, element of his damages claim. A general “monetary demand stated in round numbers is generally not considered to reflect the specific damages required of special damages.” Marino v. Jonke, No. 11 CV 430 VB, 2012 WL 1871623, at *10 (S.D.N.Y. Mar. 30, 2012). Nor do such general allegations explain what the damages comprise or how they are calculated, denying both Defendant and the Court information as to the substance of the complaint. See Barrett v. U.S. Banknote Corp., No. 91 CIV. 7420 (RPP), 1992 WL 232055, at *8 (S.D.N.Y. Sept. 2, 1992) (holding that special damages allegation that proffered neither a specific damages figure nor a method of computing the damages was insufficient). In short, “[d]amage claims of this generality do not constitute adequate pleading of special damages[,]” id., and “without an allegation of special damages, the [AC] does not allege a legally sufficient cause of action [for defamation] under California law.” King v. Am. Broad. Companies, Inc., No. 97 CIV. 4963 (TPG), 1998 WL 665141, at *4 (S.D.N.Y. Sept. 28, 1998) (dismissing Plaintiff’s defamation claims where he failed to both comply with the California retraction statute and allege special damages in the complaint).

Oops.

And, then, of course, there was the utter nonsense of the "conspiracy" claim. Nunes' complaint basically tried to argue that CNN was out to get him, and that's not how any of this works.

Finally, the Defendant argues that Plaintiff’s conspiracy claims must also be dismissed because the AC fails to plead facts sufficient to allege plausibly that CNN engaged in a conspiracy to defame and injure Nunes. Under California law, conspiracy “[s]tanding alone [ ] does no harm and engenders no tort liability.” Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454, 457 (Cal. 1994). A conspiracy “must be activated by the commission of an actual tort,” and a “bare agreement among two or more persons to harm a third person cannot injure the latter unless and until acts are actually performed pursuant to the agreement.” Id. (internal quotation marks omitted). Specifically, in defamation cases, “plaintiffs have not been allowed to circumvent the statutory limitation[s],” such as those imposed by the retraction statute, by “proceeding on a theory other than defamation.” Fellows v. Nat’l Enquirer, Inc., 721 P.2d 97, 101 (Cal. 1986). In light of Plaintiff’s failure to plead a viable defamation claim, there is no underlying tort to support a viable claim for conspiracy here.

I'm not entirely sure why CNN didn't also move to make use of California's anti-SLAPP law, since they were able to get California's defamation law applied to the case -- because that might have put Nunes in the position of having to pay for CNN's legal fees. But, either way, it's another big (but totally expected) loss for Nunes in his SLAPP crusade.

And... we still don't know who's paying for all of these lawsuits.

Filed Under: 1st amendment, anti-slapp, california, defamation, devin nunes, free speech, new york, slapp, steven biss, virginia
Companies: cnn

Conservative News Outlet Ordered To Pay More Than $250,000 In Legal Fees To Rachel Maddow, MSNBC

from the careful-with-those-baseless-claims,-OAN dept

Last summer, California's anti-SLAPP law gave MSNBC host Rachel Maddow an early exit from a bogus defamation lawsuit brought by one of the few "news" outlets that's farther to the right than Fox News, One America News.

OAN claimed it had been defamed when Maddow referred to one of its hosts as a "Kremlin-paid journalist." This comment referred to OAN "reporter" Kristian Rouz's concurrent employment as a Sputnik "journalist." Sputnik is owned by the Russian government and tends to produce exactly the sort of reporting you'd expect from such an arrangement.

As the court noted during its dismissal of the suit, Maddow's position at MSNBC is one of a commentator -- someone expected to give their opinion on world events. Thus, the stuff OAN was arguing (badly) was defamatory was actually protected opinion. And it was informed opinion that had basis in fact: Rouz did work for Sputnik and did produce propaganda on the Russian government's behalf.

Now, OAN owes MSNBC and Maddow some money. Losing a defamation suit via an anti-SLAPP motion means the victorious party can ask for legal fees. As Mary Papenfuss reports for Huffington Post, OAN's parent company (Herring Networks) has been ordered to write a very big check.

A federal judge in California has ordered the parent company of far-right  One America News Network to pay Rachel Maddow and MSNBC $250,000 in lawyers’ fees for a failed defamation lawsuit.

Of course, the check isn't as good as written quite yet.

Herring Networks President Charles Herring told the website Law & Crime in a statement that the company will appeal the costs.

No doubt Herring hopes to recoup the losses it inflicted on itself by engaging in this BS lawsuit. But it seems unlikely the Ninth Circuit Appeals Court will find in favor of the failed plaintiffs. This was a spectacular loss by OAN and its parent company. The lower court shut the door on any rewrites by OAN, setting the stage for this court-ordered opening of OAN's wallet.

Because there is no set of facts that could support a claim for defamation based on Maddow’s statement, the complaint is dismissed with prejudice.

The court's order [PDF] discusses all the procedural stuff -- including OAN's multiple arguments in favor of lower costs -- before settling on a total:

The Court awards Defendants fees in the amount of $247,667.50 representing 53.5 hours billed by Mr. Boutrous at $1,150 per hour, 19.1 hours billed by Mr. Edelman at $1,050 per hour, 130.6 hours billed by Mr. Bach at $720 per hour, 127.9 hours billed by Ms. Moshell at $470 per hour, 15.8 hours billed by Mr. Rubin at $470 per hour, 14.9 hours billed by Ms. Gadberry at $280 per hour, and 1.3 hours billed by Mr. Amponsah at $265 per hour, and costs in the amount of $10,724.36.

The real lesson being taught here is how expensive it is to defend yourself from a bogus defamation lawsuit. Even in a state with a solid anti-SLAPP law, it still costs hundreds of thousands of dollars to get a lawsuit dismissed. States without anti-SLAPP laws subject defendants to additional rounds of litigation, all of which increase the cost of defending against even the most ridiculous allegations.

That being said, strong anti-SLAPP laws are a great deterrent. Would-be plaintiffs tend to be a bit more cautious when there's a chance they'll be paying everyone's legal bills, rather than just their own.

Filed Under: anti-slapp, attorney's fees, california, rachel maddow, slapp
Companies: msnbc, oann

California Appeals Court Says Section 230 Immunizes Twitter From Banned User's Lawsuit

from the being-shown-the-exit-is-not-a-breach-of-contract dept

Back in 2019, a California court tossed a lawsuit brought by a self-described feminist who had her Twitter account banned following some posts targeting transgender people. Meghan Murphy tweeted enlightening things like "men aren't women tho" and "how are transwomen not men?" She also "deadnamed" transsexuals, identifying them using their former gender/names, something Twitter's rules explicitly prohibit.

The court didn't care much for Murphy's proposed class action lawsuit, pointing out that Twitter is free to remove users and content for any and all reasons, even reasons it hadn't yet added to its official list of rules. (The deadname prohibition came after Murphy's account was permanently suspended.) This may seem unfair, but that's the rules people agree to when using a platform provided by others.

Beyond that, there's Section 230, which shields Twitter from exactly these kinds of lawsuits. The court pointed out Twitter's editorial decisions (i.e., the removing of her account and its content) do not remove the platform's Section 230 protections. In fact -- contrary to inexplicably popular belief -- Section 230 of the CDA expressly provides for good faith moderation efforts and does not limit them to removing only illegal or illicit content.

The court tossed the lawsuit and Murphy appealed. Murphy's second pass doesn't go any better than her first. And, again, it's Section 230 that's instrumental to this second dismissal. From the decision [PDF]:

Under section 230, interactive computer service providers have broad immunity from liability for traditional editorial functions undertaken by publishers—such as decisions whether to publish, withdraw, postpone or alter content created by third parties. Because each of Murphy’s causes of action seek to hold Twitter liable for its editorial decisions to block content she and others created from appearing on its platform, we conclude Murphy’s suit is barred by the broad immunity conferred by the CDA.

The court notes Murphy's attempt to route around Section 230 by claiming this is about broken contracts (the numerous changes made to Twitter's Rules over the years, as well as its promise of 30-day notice prior to permanent suspension of accounts). The court also notes it's not going to entertain a bunch of not-so-clever bullshit clearly intended to keep the court from discussing Section 230 immunity.

Murphy takes issue with both the second and third prongs of the section 230 test as they relate to her claims. She contends section 230(c)(1) cannot apply in this case because the “only information at issue is Twitter’s own promises,” not “ ‘information provided by another content provider,’ ” and because she seeks to treat Twitter not as a publisher of information provided by others, but as a promisor or party to a contract.

[...]

In assessing whether a claim treats a provider as a publisher or speaker of user-generated content, however, courts focus not on the name of the cause of action, but whether the plaintiff’s claim requires the court to treat the defendant as the publisher or speaker of information created by another. (Barnes, supra, 570 F.3d at pp. 1101–1102; Cross, supra, 14 Cal.App.5th at p. 207.) This test prevents plaintiffs from avoiding the broad immunity of section 230 through the “ ‘ “creative” pleading’ of barred claims” or using “litigation strategy . . . to accomplish indirectly what Congress has clearly forbidden them to achieve directly.”

In a footnote, the court points out that it sees through Murphy's attempted workaround because, well, it's so transparent. If there was a serious breach of contract, there'd be some cognizable injury to be addressed. There's nothing of the sort in Murphy's allegations.

Although Murphy also points to the allegations that Twitter failed to give her 30 days’ notice of the changes to the Hateful Conduct Policy and that Twitter applied its new policy retroactively as breaches of clear and well-defined promises, the gravamen of each of her causes of action concerns Twitter’s editorial decisions not to publish content—as reflected by the fact that she alleges no specific injury from the alleged notice and retroactivity violations but complains instead of the harm caused by Twitter’s ban on her and others’ free speech rights.

And precedent backs the application of Section 230 to this case -- which actually deals with Twitter's removal of a user's account and content, rather than a breach of contract. Twitter made no promises it would keep users and their accounts alive unless specific things happened. Instead, it retained its right to refuse service to users, just like pretty much any other private business in the nation.

Here, Murphy’s allegations that Twitter “enforced its Hateful Conduct Policy in a discriminatory and targeted manner” against Murphy and others by removing her tweets and suspending her account amount to attacks on Twitter’s interpretation and enforcement of its own general policies rather than breach of a specific promise.

Twitter has no contractual obligation to continue to do business with Meghan Murphy. And its decision to end this relationship is immunized from legal liability by Section 230 of the CDA. Murphy's case is dismissed for the second time and Twitter will be allowed to recover its legal costs for defending itself from this bad faith lawsuit. Murphy can always try this again in federal court, but she's not going to get any further doing that. She's only going to keep blowing her own money on bad litigation.

Filed Under: bans, california, content moderation, meghan murphy, section 230
Companies: twitter