Public School Board Member Threatens Boss Of Woman Who Spoke Out Against School Book Banning

from the it's-free-speech-all-the-way-down dept

The VC Star has a slightly bizarre article about a school board trustee of the Conejo Valley Unified School District (in Southern California) named Mike Dunn, who apparently was upset about a speech given by a mother at a board meeting. That mother -- Jessica Weihe -- also blogs on the site AnonymousMommy.com (though as far as I can tell, she was not "anonymous" in that people in the community appeared to know who she was). Weihe gave a perhaps slightly rambling speech at a recent board meeting. The details appear to be somewhat specific to some district policies on handling "mature" books, but suffice it to say that it appears that Dunn was arguing against certain books being on the curriculum because he felt their content was inappropriate. Among the books that there was some controversy about was Sherman Alexie's quite well known book The Absolutely True Diary of a Part-Time Indian. Weihe's speech mocked Dunn for having tried to get it off the curriculum, and accuses him of not having read the book, and over-reacting to why it might be a problem. Here's a snippet from what she said:

Unlike Mr. Dunn, I actually read the book in its entirety. In fact, I led an online book reading of Part-Time Indian, in which 40 local parents participated in, so that we could be better informed as to the concern regarding this literature selection before its approval, concern which Mr. Dunn raised at a June board meeting over the phrase “kicked him in the balls.” I have to say, I was quite disappointed to find no salacious material! You all had me bracing to clutch my pearls! Mr. Dunn, who cannot and has not confirmed he actually read the book in entirety, (I mean, he couldn’t even find time to attend board governance training) falsely and inappropriately asserted in a public letter to the Acorn that approving this book was akin to “child abuse” and that it was “pornographic” in nature. Aside from noting how reprehensible it is to assert that our curriculum committee and teachers want to impose pornography on our students and take part in an act of child abuse, if this were to be true, I find it curious it’s not asterisked as such here. It’s because it’s not pornographic, nor, as Mr. Dunn would have our community believe, child abuse.

There's a lot more in the talk, but that gives you the basic idea. Dunn, not surprisingly, wasn't happy about this. So... rather than respond or give his position, he decided to call Weihe's boss and threaten to try to shame their company if she continued to say similar things about the school board or its members.

If you can't read that, it says:

Scott,
I am told that you approve of the political activities of Jessica Wiehl (anomymous mommie).

Every time she slanders or libels the school district or a school board member during public comments at a board meeting, I am going to respond that Jessica she works for Mustang Marketing and that you support her opinions.

Her boss -- Scott Harris -- responded pretty quickly, and did so pretty thoroughly:

If you can't read that, it says:

Mike,

Thank you for the courtesy of putting your threat in writing. However, before you go off half-cocked and wrong--again--and while you often have little apparent interest in the truth or facts, allow me to correct you in advance of you making good on your threats.

I support Jessica's right to her views and to her expressing them. Her views are her own, not mine or my companies. If you'd like to point out that I support community involvement, community activity and freedom of speech--please do. You can open and close each meeting with that and hang a poster over your head that states the same thing. Heck, I'll pay for the poster, if that helps.

If, as you have threatened, you choose to falsely point out that I support all her views, none of which she shares with me in advance of the meetings, I am putting you on notice that that is a false statement.

Again, so that I'm clear, supporting Jessica's right to her opinions and expressing them in a public forum (and I do!), is far different from me supporting her opinions, which I may or may not, depending on her actual positions. I hope I've made this clear enough for you to understand.

And since I'm not convinced that you understand the definition of slander, I have included it here. I think if you take the time to read this - and to follow through with your threat - you'll see you've exposed yourself - and the CVUSD - to a lawsuit.

n. oral defamation, in which someone tells one or more person an untruth about another, which untruth will harm the reputation of the person defamed. Slander is a civil wrong (tort) and can be the basis for a lawsuit.

Mike, have a terrific Thursday and maybe you can limit your threatening emails to just me, at least for today=)

Scott Harris

A number of other emails have since been sent, with Dunn "suggesting" that he and Harris go to mediation (I'm not quite clear what they have to mediate, but...). Harris responds to the mediation request by pointing out that there's nothing to mediate, and he's happy to meet if Dunn wishes to apologize (and, reminding Dunn that he supports Wiehl's First Amendment rights and that doesn't mean he agrees with her opinions).

Either way: what a mess. Having a public official make threats like that certainly appear to be attempts to stifle speech, which would be a flat out First Amendment violation. Some people might respond that public shaming, or even agitating to get someone fired, is using "more speech" against speech someone doesn't like -- and in many cases, that's true. But when one is a public official, the calculus changes, because it becomes government attempting to suppress speech. From Okwedy v. Molinari:

A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff's First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant's direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.

That seems fairly on point.

As for the cross claims of defamation... neither seem particularly strong, though Harris would probably have a slightly stronger argument. The only real statements of fact that I see in Wiehl's original speech was about whether or not Dunn had read the book, but she lays out her reasons for thinking so (asking him to quote the problematic parts and him refusing to, as well as his non-answer about having read the book). Besides, it's a tough lift to argue that saying someone hadn't read a book is defamatory. As for Harris's defamation threat in the other direction, obviously it would depend on what Dunn actually said, but it is at least true that he would have knowledge that his initial claim (of Harris supporting Wiehl's positions) is false, and that could make it a bit dicier for Dunn. The fact that Wiehl is also claiming that someone left a voicemail at her employer's office saying they would no longer do business with the company and would be telling all their friends not to do business with them (implying because of this) at least presents evidence of reputational harm done.

No matter what, though, this is a really bad look for Dunn. Not just in trying to stop high school kids from reading, but then trying to suppress the speech of someone who criticized him for blocking the book. Dunn, as a public official, has the right to speak his mind, but not to ban books or to suppress the speech of the public. Those are both pretty fundamental to the First Amendment.

Filed Under: book banning, conejo valley unified school district, defamation, first amendment, free speech, jessica weihle, mike dunn, school boards, scott harris, sherman alexie, threats

Wherein We Ask The California Supreme Court To Lessen The Damage The Court Of Appeal Caused To Speech

from the nothing-to-see-here dept

A few weeks ago we posted an update on Montagna v. Nunis. This was a case where a plaintiff subpoenaed Yelp for the identity of a user. The trial court originally denied Yelp's attempt to quash the subpoena – and sanctioned it for trying – on the grounds that platforms had no right to stand in for their users to assert their First Amendment rights. We filed an amicus brief in support of Yelp's appeal of that decision, which fortunately the Court of Appeal reversed, joining another Court of Appeal that earlier in the year had also decided that of course it was ok for platforms to try to quash subpoenas seeking to unmask their users.

Unfortunately, that was only part of what this Court of Appeal decided. Even though it agreed that Yelp could TRY to quash a subpoena, it decided that it couldn't quash this particular one. That's unfortunate for the user, who was just unmasked. But what made it unfortunate for everyone is that this decision was fully published, which means it can be cited as precedent by other plaintiffs who want to unmask users. While having the first part of the decision affirming Yelp's right to quash the subpoena is a good thing, the logic that the Court used in the second part is making it a lot easier for plaintiffs to unmask users – even when they really shouldn't be entitled to.

So Yelp asked the California Supreme Court to partially depublish the ruling – or, in other words, make the bad parts of it stop being precedent that subsequent litigants can cite in their unmasking attempts (there are rules that prevent California lawyers from citing unpublished cases in their arguments, except under extremely limited circumstances). And this week we filed our own brief at the California Supreme Court in support of Yelp's request, arguing that the Court of Appeal's analysis was inconsistent with other California policy and precedent protecting speech, and that without its depublication it will lead to protected speech being chilled.

None of this will change the outcome of the earlier decision - the user will remain unmasked. But hopefully it will limit the effect of that Court of Appeal's decision with respect to the unmasking to the facts of that particular case.

Filed Under: anonymous speech, defamation, discovery, free speech
Companies: yelp

Psychiatrist Bitterly Drops Defamation Lawsuit Against Redditors

from the EVEN-THOUGH-I-AM-100%-IN-THE-RIGHT,-I-AM-WALKING-AWAY-ANGRILY dept

Dr. Douglas Berger, an American psychiatrist offering services to ex-pats in Japan, recently sued a bunch of Redditors for telling other Redditors to steer clear of his services. Berger's lawsuit was exhaustive, covering several months of disparaging comments delivered by Redditors, but much of what Berger considered libel fell under the category of "protected opinion."

Berger's ultimate goal appeared to be a revamp of his Google search results. Sitting ahead of multiple URLs linked to Berger and his Japanese business (many which appear to be owned by Berger himself) were links to multiple Reddit threads with unhelpful (for Berger anyway…) titles like "Stay away from 'psychiatrist' Doug Berger." In these threads, Berger was accused of everything from a lack of attentiveness during sessions to harassment to dodging income taxes.

It wasn't pretty, but Berger's lawsuit was even uglier. Berger wanted a court to unmask multiple anonymous Redditors, while offering up little more than his opinions about opinions. While there were a few marginally-actionable statements listed in the lawsuit, Berger targeted every Redditor who'd ever said anything less than favorable about him.

The Redditors put together a fundraising page for legal fees and secured the help of Marc Randazza. The good news is most of this is now unnecessary.

After realizing what the defendants knew from the beginning - that he had absolutely no standing to sue anonymous internet commenters in Florida - Dr. Douglas Berger, who is not currently licensed to practice medicine in any US state, has withdrawn his lawsuit.

While the group are disappointed that the court system was not given a proper chance to reject Dr. Berger's SLAPP tactics, they are grateful to the Randazza Legal Firm for their counsel and hard work on the case.

The group's final legal bills are not expected to exceed $5000, and the goal of this campaign has been updated to reflect that. Any amount donated above the $5000 goal will be donated to TELL JP.

Berger's dismissal [PDF] -- without prejudice, unfortunately -- is short, but it's anything but sweet. It only runs two paragraphs but each word is coated with the grit of Dr. Berger's tooth enamel.

Pursuant to Florida Rule of Civil Procedure 1.420, Plaintiffs Douglas Berger and Meguro Counseling Center (collectively "Plaintiffs") voluntarily dismisses all claims against Defendant John Doe and Nominal/Relief Defendant Reddit Inc. without prejudice, each party bearing its own costs and fees.

Plaintiffs' dismissal is submitted after preliminary discovery has raised questions about the proper jurisdiction to litigate the acerbic, irrational, and highly defamatory statements which have been published about him on the Internet. This dismissal does not reflect in any way upon the merits of Plaintiffs' undoubtfully legitimate claims under applicable law, his likelihood of success upon the merits, or the compensable damages for which he will seek recovery upon his re-filing.

Whew. That's a read. So, there are questions about jurisdiction, what with Berger living in Japan and the Redditors living… wherever. Tacked to the end is a threat to refile, as if the jurisdictional questions will somehow resolve themselves without Berger finding out where these Redditors reside. It could be Berger is planning to take his complaint to the Japanese judicial system (as noted by a commenter here and apparently stated by Berger himself) where it might be easier to win, but far more difficult to find people to win against. Japanese law treats defamation differently, allowing factual statements that harm someone's reputation to be treated as defamatory.

Good to know the truth is always a defense, right? Well, in Japanese libel and slander cases, the truth won't necessarily help you. Instead, it all comes down to reputation. [...] Even if a published statement is 100% true, it can still be considered defamatory if it irrevocably hurts the subject's reputation and oftentimes the question of truth doesn't really enter the equation. For example, in 2012 a Japanese man discovered that when he put his name into the Google search bar, it autocompleted results that implied he had a criminal record, and this man argued these autocomplete search results were severely damaging his reputation. Some sources strongly implied this man really did have a criminal past, others said that he was innocent. But it didn't really matter either way—the Japanese court ordered Google to remove the autocomplete terms, which they did.

On the other hand, discovery will be a bit more difficult.

Compared to the United States, which employs one of the most extensive discovery systems in the world, Japan’s rules governing the collection of evidence seem woefully inadequate. Modeled after German civil procedure rules, most evidence production in Japan takes place at trial. Authority and control over the gathering of evidentiary facts is vested in the court, with the judge assuming the primary responsibility for taking and receiving evidence. Japanese attorneys have no real power to compel the production of evidence or to elicit testimony from either adverse parties or third parties, and must therefore rely on voluntary cooperation or seek intervention by the court. This is in stark contrast to U.S. discovery, which is conducted mostly by the parties themselves with only minimal court supervision.

If Berger can't unmask Redditors prior to filing, it's going to be more difficult for him to pursue them in Japan. The Japanese system aligns with Berger's take on what is or isn't defamation, but a lack of defendants makes pursuing this overseas a dead end. Reddit has no offices in Japan so the court would have to ignore jurisdictional limits to compel production of identifying info, possibly leaving him without a defendant to sue.

For the moment, the case is dormant. Randazza will likely jump back in if needed, but Berger may be realizing suing users of an influential social sharing site has only made more unflattering links appear in his vanity searches.

Filed Under: anonymity, criticism, defamation, douglas berger, free speech, japan, reviews, slapp
Companies: reddit

Bigoted Landlord Files Criminal Complaint Against Critic Who Called Him Bigoted

from the if-you-criminalize-opinions,-only-criminals-will-have-opinions dept

In yet another example of how the UK's government's stated respect for free speech is continually undercut by its actions, a bigoted landlord is bringing charges against a YouTuber for calling him bigoted. (via Innocent Abroad)

Fergus Wilson said he will ‘bankrupt’ Danny Hyde over a video criticising his policy to ban non-white tenants ‘because of the curry smell they leave behind’.

Hyde was referring to statements Wilson made last year, which were part of a bigger leak of inside info that exposed Wilson's extremely questionable tenant standards.

In addition to banning "coloureds" (Wilson's actual words), Wilson also refused to rent housing to single mothers, "zero-hour workers," and battered wives. Quite the humanitarian. So there's no shortage of criticism waiting for Wilson, who actually had to be told refusing to rent to people with darker skin tones was *gasp* illegal.

Multi-millionaire Fergus Wilson, 69, tried to ban non-white tenants because of the ‘cost of removing the smell of curry at the end of their tenancy’. Today a county court ruled the policy was unlawful.

Hyde's video is full of stuff Wilson doesn't want to hear, but that shouldn't make it illegal. Hyde suggests banning curry rather than entire races and describes Wilson as a "penis" and a "bum splat." Here in the United States, those statements would be protected hyperbolic statements of opinion. In the UK, however, they're arguably illegal. This is the video Wilson hopes to shut down with his abuse of a badly-written law. (NSFW: language)

Wilson has filed a complaint stating Hyde's video violates the Malicious Communications Act of 1988. This UK law criminalizes communications "sent" with the purpose of "causing distress or anxiety." The scope of the law is incredibly broad. Ironically enough, the purpose of the legislation was to curb "racially or religiously motivated comments." You know, like saying you're banning "coloureds" for making apartments "smell like curry."

Instead of being wielded against Wilson and his bigoted statements, it's being used to silence a critic of Wilson's bigoted statements. And Wilson has threatened to sue Hyde into bankruptcy if the law fails to result in a $10,000 fine and the forcible removal of the video.

This is the problem with laws targeting speech. Supporters of this type of legislation claim this will make public discourse better and friendlier. Who wouldn't want to see online harassment and bullying brought to a halt? But it never works out that way. The bullying and harassment continues. The only thing that changes is who's handing it out.

Groups frequently targeted by hateful speech never benefit from these laws. Powerful people like Wilson are the ones most likely to use bad speech laws to punish the little guy who just won't shut up. And if it's not powerful people doing the bullying, it's the government itself, handing out fines and removing content it doesn't like while claiming to be offended on behalf of others.

Bad laws encourage legal thuggery. There's no ignoring that fact. Speech laws are often bad laws because they're written with an eye on the hypothetical situation where do-gooding government types clean up the internet by punishing hateful, bigoted people. But when actually put to use, it's hateful, bigoted, powerful people shutting people down for calling them hateful and bigoted.

Filed Under: danny hyde, defamation, fergus wilson, free speech, uk

Psychiatrist Drops His Lawsuit Against Critic Who Left Wordless One-Star Review

from the but-the-damage-is-already-done dept

It looks like the psychiatrist who sued a pseudonymous reviewer over a wordless one-star review has finally decided to stop digging this particular hole. Since news broke of psychiatrist Mark Beale's defamation suit against "Richard Hill," Beale has amassed a great many one-star reviews by non-patients. There's no telling if Beale will be seeking to file an en masse lawsuit against these Does (taking a page out of copyright trolls' handbooks), but this cannot possibly be what he envisioned when he decided the original one-star review was worth suing over.

Unbelievably, Beale managed to convince a judge to allow him to seek the real identity of "Richard Hill" in order to continue with his lawsuit. Not only did the judge give enough credence to Beale's argument that a one-star review was per se defamatory, but the judge granted the unmasking order, calling a review of business "commercial speech" -- something given less protection under the First Amendment.

University of South Carolina professor Eric Robinson has been keeping an eye and the local docket and sends us news that Beale has dismissed the case. It's a voluntary move [PDF] on Beale's part, but it's also without prejudice, leaving the path clear for Beale to refile.

But it doesn't look like Beale will amend this suit or refile, even if he's found a judge willing to bypass First Amendment protections to unmask a critic who left nothing more than a wordless single-star review. At least not against a Doe defendant. The unmasking did happen and Beale's request [PDF] to view the information turned over under seal to his lawyer was granted [PDF] by the judge. Soon after that, the request for dismissal [PDF] was filed.

This means Beale now knows who "Richard Hill" actually is. He could have stuck with the lawsuit, amending it to include the Doe's real name and serving the defendant. But he sought dismissal instead. Does that mean Beale found "Richard Hill" was actually someone he didn't want to take to court, or worse yet, someone he already knew? Remember, his original lawsuit contained some very curious assertions to bolster his allegations, the weirdest being that his mother thought "someone she knew" was trying to ruin his reputation.

Or it could be Beale discovered Hill was an actual patient of his, despite his assertions otherwise. (His lawsuit claimed two things: "Richard Hill" was a fake name and "Richard Hill" was not a patient of his. These two statements are tough to make definitively, but Beale asserted both simultaneously in his lawsuit.) Maybe he didn't feel like pursuing an unhappy patient in court, especially after he had already sworn otherwise in his complaint. Or maybe Beale is planning some sort of offline, out-of-court battle against the unmasked critic -- something that would be unfortunate but at least wouldn't allow this particular judge to continue his attack on the First Amendment.

That makes this cut-and-run a bit more interesting than it would normally be, as litigation has ceased after discovery of the only thing Beale appeared to be missing from his suit: a defendant he could serve. Equally problematic is there's a judge in the South Carolina court system where locals can take their grievances about anonymous commenters and expect unmasking to proceed, no matter how weak their arguments are.

Whatever the future holds for Beale and his litigious moves is unknown, but there's no undoing the damage Beale did to his own reputation by trying to make a case out of a one-star review. Had he done nothing, it would have been carried away by internet flotsam with zero damage to his career or future prospects. Instead, Beale could not let a one-star, wordless review go unanswered, and now his Google results are full of them.

Filed Under: anonymous speech, criticism, defamation, first amendment, mark beale, one star review, reviews

Trump's Personal Lawyer Sues Buzzfeed For Publishing Allegedly False Statements Written By Someone Else

from the tossing-around-federal-litigation-like-hand-grenades dept

Another day, another stupid lawsuit/legal threat emanating from the Trump offices. Trump's personal lawyer, Michael Cohen, has decided to rub up against the libel laws Trump so badly wants to "open up" by filing a ridiculous defamation lawsuit against Buzzfeed for publishing the Christopher Steele dossier compiled by Fusion GPS. Fusion is also being sued, but the addition of Buzzfeed strips the lawsuit of much of its credibility.

Cohen has every reason to dislike what was said about him in the dossier. According to the Fusion GPS opposition report, Cohen was supposedly instrumental in hooking the president's people up with high-ranking Russian officials during the presidential campaign. Cohen maintains all of these allegations are false. From the lawsuit [PDF]:

Under this report, Plaintiff is alleged to have an inappropriate and possibly criminal relationship with the Russian government stemming from his wife's familial relations with a Russian property developer. None of these allegations are true. Plaintiff does not have any relationship with Russian officials and his father-in-law is not a leading property developer in Moscow; he has only been to Russia once. In fact, Plaintiff's father-in-law does not even own a vacation home in Sochi, nor has he ever been there. Additionally, Plaintiff's wife was born in the Ukraine region and immigrated to the United States over forty (40) years ago; she has never been to Russia.

The dossier was published in full last January. In March, Cohen provided Buzzfeed with his passport, showing he had never traveled to the areas the report said he had. That should have been enough for Cohen, but he's decided to, at the very minimum, force Buzzfeed to defend itself against defamation claims up to a motion to dismiss.

The lawsuit goes on and on about allegations made in the report, each one supposedly provably false. Several paragraphs are devoted to quoting parts of the report, followed by Cohen's rebuttal of the report. Even a casual observer of defamation suits should be able to see the problem. The entity Cohen should be suing is Fusion GPS, and Fusion GPS only.

Cohen's lawsuit is largely made up of counterspeech. The best weapon against speech you don't agree with is more speech, delivered from your side. But using a federal lawsuit to engage in counterspeech doesn't do anything positive for the First Amendment. If Cohen wanted to rebut these allegations publicly, I'm sure there's no shortage of press outlets willing to make space for an op-ed piece by the president's personal lawyer. Cohen has instead decided to use the government to grant credence to his side of the story and is hoping to take home $100 million on top of whatever collateral damage he does to the First Amendment.

Cohen has to stretch to make Buzzfeed the target of a lawsuit complaining about things that weren't said by anyone at Buzzfeed.

Defendants knew that the Dossier reports were false and/or acted with reckless disregard in determining whether the reports were true or false.

While it's true Buzzfeed thought the document might be sketchy, it did warn readers the dossier had not been verified and included errors. This is hardly "reckless" behavior. The dossier was definitely newsworthy. On top of that, government officials had already acted on information contained in the document, lending it further credence and adding to its public interest value. Buzzfeed's Ben Smith offered his defense of the document's public value (and implicit pedigree) at the New York Times. His statement goes right to the heart of Cohen's "reckless disregard" allegations:

When we published the dossier, we knew a lot: We knew that it had been written by the former head of the Russia desk at Britain’s main foreign intelligence agency, a man whose job had made him a leading source on Russian espionage. We knew that key members of the Senate — Harry Reid, the Nevada Democrat, and John McCain, the Arizona Republican — had acted on its contents. We had also learned that intelligence officials had briefed President Barack Obama and President-elect Trump on the dossier, and that the F.B.I. was already looking into it.

So, it's not as though some internet rando jammed a bunch of virtual papers through Buzzfeed's SecureDrop mail slot. This document had received vetting from government officials, many of which saw enough in it to move forward with investigations and Congressional hearings.

To be fair, Cohen is also suing Fusion GPS. But adding Buzzfeed to the lawsuit serves zero purpose other than to hassle it for ensuring the document ended up in the public's hands. This rolls back a lot of the fairness I so recently extended Cohen. New York has a severely-restricted (and mostly useless) anti-SLAPP law so Buzzfeed won't be able to turn around and demand a refund from Cohen for wasting its time.

Cohen clearly doesn't like what was said about him in the Fusion report. Great, sue Fusion. Sue Christopher Steele. But don't make this about a third party that did nothing more than publish a document of public interest with fair warning to readers about the dubious veracity of the contents.

Filed Under: defamation, michael cohen, section 230, steele dossier
Companies: buzzfeed, fusion gps