Psychiatrist Sues A Bunch Of Redditors For Criticizing His Therapy Services

from the a-move-sure-to-silence-future-criticism dept

Update: Redditors are crowdfunding their legal defense via GoFundMe. They are now being represented by Marc Randazza.

For reasons only known to the plaintiff, an American psychiatrist offering unlicensed services in Japan is suing a whole bunch of Redditors for defamation. The underlying reason for this lawsuit is obvious: searches for Dr. Douglas Berger or psychiatrists in Japan tend to return lots of links presumably owned by Dr. Berger, but more prominently, a bunch of warnings from Redditors at Japan-focused subreddits to steer clear of his psychiatric services.

So much is Dr. Berger hated by denizens of Japanese-oriented subreddits that one subreddit has even made an annual tradition of warning Americans in Japan (or looking to relocate there) away from Berger. This post also notes Berger himself has tried to make negative posts disappear from Reddit, sometimes with the assistance of reputation management firms.

It appears none of this has worked. Dr. Berger -- living and working in Japan -- has filed a defamation suit in Florida. This doesn't make much sense, but I assume the court will sort out jurisdiction once the case gets underway. So far, there's nothing more on the docket than Berger's first and second complaint, the latter stripping out Microsoft and Google as defendants to focus solely on Reddit and Redditors. Berger at least focuses his lawsuit on the Doe Redditors, naming Reddit as a party solely for the purpose of obtaining identifying info. As his filing [PDF] states, he makes no assertions of liability as to Reddit.

That being said, there's a lot not to like about this lawsuit. There seems to be plenty of critical opinions listed but very little actual defamation. Some statements could be construed to have crossed that line, but for the most part, we're dealing with statements of opinion which cannot be treated as defamatory, no matter how negative they are.

Here are some of the many, many statements Dr. Berger would like to see sued into nonexistence [with my commentary in brackets]:

[t]he false and defamatory statements about Plaintiff Berger include but are not limited to the following:

that he is a 'fucking maniac' [opinion]
he is a 'piece of shit' [opinion]
'gives patients the creeps' [opinion]
that 'he is not a medical professional' [Depends on the definition. He is not licensed in Japan but is licensed in the States.]
'he was disinterested in patients' [opinion]
'incompetent in actually giving therapy' [opinion -- and a layman's opinion at that]
that he overprescribes drugs [questionable, but still looks like an uninformed opinion, not an assertion of fact]
that he 'was always distracted on the computer while with a patient' [even if an assertion of fact, still not defamatory]
that he said sexist comments to a patient' that he told a female patient she will 'be basically worthless after [she] lost her looks' [this is borderline, but truth is an absolute defense, so if it can be shown that it happened…]
he misdiagnoses patients [borderline]
harasses patients online [this can be likely be proven one way or another if true]
takes advantage of patients [opinion]
scams patients [borderline]
that he is a 'scam artist with a doctorate' [borderline, but closer to opinion than the previous one]
that he is 'incompetent or negligent in both' (referring to [Dr. Douglas Berger's] mental health services) [possibly defamatory]
that he is unstable [opinion]
he bilks clients out of their money for services that do not meet even the most basic professional standards [borderline]
he uses Paypal to avoid paying taxes [leans towards defamatory]
he is 'deeply unprofessional, insulting and derogatory' [opinion]
he is a 'cast-iron racist' [borderline, likely can't be proven or disproven]
that he is a charlatan [opinion]
that another mental health service provider gets a lot of his angry ex-clients [possibly defamatory if false, but would possibly have to prove person knew this wasn't true when it was posted]
that he is pushy [opinion]
that he is manipulative [opinion]
and that he disrespects clients and makes them feel like it is their fault they are depressed or stressed [opinion].

For the most part, we're dealing with opinion. The borderline cases might make the lawsuit a worthwhile pursuit for Berger, but a large number of these statements are going to be tossed as they don't clear the bar for defamation.

And some of this will hinge on whether or not the court decides Berger is a limited-purpose public figure for the purposes of this suit. If so, the bar goes even higher and is likely to give Berger very little return on investment. Berger's contributions to several major publications on the subject of providing psychiatric services in Japan are likely to make him a public figure of sorts, even if only in the small arena of ex-pats providing unlicensed services in a foreign country.

Another problematic aspect of this lawsuit is the amount of information Berger wants Reddit to hand over so he can proceed with his suit.

• Join Date
• Last login
• First Name
• Last Name
• Email Address
• Phone Number
• Email notification address for follow up comments
• Zip Code
• Date of Birth
• Gender
• Location
• Originating IP address for each and every connection by each user to your service, including the initial account establishment
• Remote port number for each user connection
• The date & time for each session
• The time zone used by your log file system
• User agent detail of the user's computing devices for each session
• Any other such information available that includes basic subscriber information and non-content records about the user.

Hopefully Reddit will fight this demand for info, pushing back on the request until the judge narrows the list down to those who have made arguably defamatory statements (and limits the scope of what can be compelled from Reddit). The court should also be hesitant to grant unmasking requests like these prior to weighing the suit's validity. Online anonymity -- especially that related to public commentary on issues of public interest -- should be given as much protection as possible, no matter how badly a plaintiff might want to clean up his search results.

Then there's the question of jurisdiction. The only connection to Florida is the existence of property owned by Dr. Berger. He has no residence there, nor does he provide services in Florida. Reddit -- a non-party for all intents and purposes -- is headquartered in San Francisco. It's not like Berger is dodging an anti-SLAPP law by filing in Florida as opposed to California -- something his legal representation should be aware of. It may be Berger simply had no idea where to file it and picked a place nominally linked to him, rather than for some legal advantage not present in California.

While there may be some actionable statements in the Reddit-Berger dogpile, a majority of the comments are critical opinions. The problem is the suit targets everything Berger doesn't like, rather than just the edge cases where defamation may have occurred. Given his past attempts to silence critical Redditors, this looks like an escalation meant to deter future negative comments, rather than seek retribution for the few times he may have been legally wronged. The problem with this tactic is it so very rarely works. If Berger doesn't like the current state of Reddit, he's going to find it much more unbearable once the backlash begins. Reputation management begins at home -- or rather, at the office. Unless all of these Redditors are lying, Berger's psychiatric offerings seem to have been consistently subpar. Seems like the smarter move would have been providing better service rather than seeking to silence unhappy patients after the fact.

Filed Under: defamation, douglas berger, florida, japan, opinion
Companies: reddit

Donald Trump Hires Charles Harder To Threaten Steve Bannon With A Lawsuit, Block Publication Of New Book

from the 2018-kicks-off-with-a-bang dept

If you follow political news at all, you probably saw the story yesterday concerning excerpts from Michael Wolff's upcoming book Fire and Fury, in which former Trump "Chief Strategist" Steve Bannon appeared to completely throw Trump under the bus, allegedly saying a bunch of pretty negative things about Trump and his family -- including the headline-making exaggerated opinion that Trump Jr., Kushner and Manafort meeting with Russians was "treasonous." Trump quickly responded in kind with one of the most incredible statements you'll see (and that's saying something, given the speaker) which starts out thusly:

Steve Bannon has nothing to do with me or my Presidency. When he was fired, he not only lost his job, he lost his mind. Steve was a staffer who worked for me after I had already won the nomination by defeating seventeen candidates, often described as the most talented field ever assembled in the Republican party.

It goes on. Normally, none of this would be Techdirt-worthy, but late last night, a new twist was added. According to ABC News, President Donald Trump has hired lawyer Charles Harder to threaten Steve Bannon with a lawsuit for defamation, breach of confidentiality and non-disparagement agreements. And, then, this morning, more news broke of another letter, written by Harder, sent to Wolff and the book's publisher, demanding that the book not be published at all -- and that they send Harder a complete copy of the book.

So, let's lay our cards on the table here: the lawyer, Charles Harder, is still the lawyer representing a plaintiff in an ongoing lawsuit against us -- and we've written about many of his other lawsuits, including representing the First Lady, Melania Trump. Not much more needs to be said about him. We're also not huge fans of Steve Bannon. Or Donald Trump. Or, for that matter, of Michael Wolff, who has a long history of... not being very good at his job. So, if you want to accuse us of bias in this post, consider it spread all around.

ABC did not publish a copy of the actual letter Harder sent Bannon, but did extensively quote it, so we can piece together most of the letter. Here are the various excerpts:

"This law firm represents President Donald J. Trump and Donald J. Trump for President, Inc. On behalf of our clients, legal notice was issued today to Stephen K. Bannon, that his actions of communicating with author Michael Wolff regarding an upcoming book give rise to numerous legal claims including defamation by libel and slander, and breach of his written confidentiality and non-disparagement agreement with our clients. Legal action is imminent."

"You [Bannon] have breached the Agreement by, among other things, communicating with author Michael Wolff about Mr. Trump, his family members, and the Company, disclosing Confidential Information to Mr. Wolff, and making disparaging statements and in some cases outright defamatory statements to Mr. Wolff about Mr. Trump, his family members, and the Company, knowing that they would be included in Mr. Wolff’s book and publicity surrounding the marketing and sale of his book."

"Remedies for your breach of the agreement include but are not limited to monetary damages, injunctive relief and all other remedies available at law and equity...."

The letter then cites parts of Paragraph 8 of the Agreement: "Consent to Injunction. A breach of any of your promises or agreements under this agreement will cause the Company, Mr. Trump and each other Trump Person irreparable harm. Accordingly, to the extent permitted by law, and without waiving any other rights or remedies against you at law or in equity, you hereby consent to the entry of any order, without prior notice to you, temporarily or permanently enjoining you from violating any of the terms, covenants, agreements or provisions of this agreement on your part to be performed or observed. Such consent is intended to apply to an injunction of any breach or threatened breach."

The "Damages and Other Remedies" part of the Agreement is then cited, "Notwithstanding anything to the contrary, each Trump Person will be entitled to all remedies available at law and equity, including but not limited to monetary damages, in the event of your breach of this agreement. Nothing contained in this agreement will constitute a waiver of any Trump Person’s remedies at law or in equity, all of which are expressly reserved."

"Further, as the prevailing party in any litigation arising out of your breach of the Agreement, Mr. Trump and the Company will be entitled to 'an award of reasonable legal fees and costs."

Phew. Donald Trump, of course, has a long history of threatening defamation lawsuits, not all of which actually come to fruition. He has actually sued for defamation a few times -- but not very successfully. Also, I'm not sure Trump or his supporters should be all that excited about the idea of a Trump deposition either. In the past, those haven't always gone well (though I'm sure the media would salivate over such a thing).

Still, having a sitting President sue a former top advisor and former campaign CEO for defamation would be... unusual. Without seeing everything that Wolff has written, nor seeing everything that Bannon has said, it's difficult to know if anything actually reaches the level of defamation -- nor will we speculate one way or the other. Bannon, of course, may not be the most trustworthy narrator -- and there are already reports that Bannon planned to use the book "to settle scores" against people he disagreed with -- such as Jared Kushner. But portraying people negatively, by itself, is not defamation.

So far, most of the comments revealed certainly appear to be statements of opinion not fact. But the full book has not yet been released. We will note, of course, that a pretty long history of US case law (and the good old First Amendment) makes it quite difficult to successfully claim defamation of a public figure -- and there basically is no more public figure right now than Donald Trump. Trump would have to show that Bannon said or wrote false things about Trump, knowing that they were false, or with reckless disregard for the truth. That's not an easy standard to meet but certainly not impossible. I would be very surprised if Bannon went that far, but it's not impossible. And, at least in the excerpted portions in the letter, there does not appear to be an explanation of which statements are actually defamatory and how (which is generally what one does if you're claiming defamation and have an actual basis for such a claim).

Of course, there may be other concerns as well. Some are already raising questions about Wolff's reporting in the book, which could create an interesting wrinkle should a case actually show up:

And, as noted, Wolff has been accused of questionable journalistic techniques in the past, which he denies, including claims that he "invented or changed quotes." So it's hardly surprising that a bunch of articles are popping up digging into Wolff's history as well. That said, Axios is also reporting this morning that Wolff recorded his interviews, so if officials want to claim that he made up their quotes, that may backfire badly.

As for the breach of confidentiality and non-disparagement clauses, those are other issues entirely. It's certainly been reported in the past that the Trump campaign made staffers sign confidentiality agreements which appeared to be quite broad. Whether or not such an agreement is actually enforceable would certainly be an interesting legal question, and one that would be watched quite closely in the courts -- especially seeing as there has been a lot of discussion lately about how non-disclosure agreements were used to silence the victims of sexual assault, and how perhaps such agreements should be made illegal, but nothing's really happened on that front so far.

It does seem worth pointing out that there's a built-in contradiction if Bannon's statements are both defamatory and a confidentiality agreement violation. Because if it's violating confidentiality, well, then that's an admission that it's true and not made up. It's possible that Harder is claiming some statements are defamatory while others breach confidentiality --but it'll be fun determining which ones are which.

So, does Trump (and Harder) have a legitimate case against Bannon? Without seeing the details it's difficult to say for certain. However, either way, I think we can express our strong opinion that merely having the President of the United States feel the need to bring in a lawyer to threaten a lawsuit against his former top strategist over some negative things said in a book... is a really bad look. It's no secret that our President appears to have an extremely thin skin when it comes to criticism. Threatening lawsuits certainly doesn't help change that impression.

As for getting Wolff and publisher Henry Holt & Co. to stop publishing the book entirely? That seems extraordinarily unlikely to happen. The book has already been distributed to bookstores, and getting a judge to order the publication to stop would be clear prior restraint and an absolute violation of the First Amendment. And, for Wolff and the publisher, you have to imagine that they're loving the threat for all the free advertising it's providing. There's a term for that, I think. On top of that, I'd argue that the President of the US demanding an entire book not be published is even more ridiculous than threatening Bannon with a defamation lawsuit. Banning books is most certainly not something the President should be doing and is an affront to the First Amendment. But, of course, Donald Trump has a long history of attacking the First Amendment, so perhaps it's not a surprise.

Many may argue that the threats alone may be the point of all of this. Threatening (or even suing) Bannon for saying mean things after leaving the White House may be intended more as a message to other Trump White House staffers (past, present and future) to shut the fuck up, rather than talk to the press. Historically, trying to enforce a code of silence in this manner doesn't tend to work well. It is likely to only lead to more leaking and more talking to the press -- though perhaps with less willingness to put names on the quotes. And, on top of that, threatening the publisher and author seem only likely to interest more authors in writing about the Trump White House in hopes of a similar "free advertising" blitz from the President and his lawyers.

Filed Under: charles harder, confidentiality agreement, defamation, donald trump, first amendment, free speech, michael wolff, non-disclosure agreement, steve bannon
Companies: henry holt

Ousted Educator Tries To Talk Appeals Court Into Letting Him Sue Someone For Things Someone Else Said

from the self-screwing-intensifies dept

Because prudence is always in short supply but stupid is the world's foremost renewable resource, an ousted director of a Tennessee culinary school is appealing the dismissal of a defamation suit he brought against his replacement for things a journalist said.

The original lawsuit didn't live long, fortunately. Heavily quoting a Tennessean article by journalist Jim Myers, Tom Loftis -- the former head of the culinary school at the Nashville university -- sued Randy Rayburn (Loftis' replacement) over things Myers said.

Loftis apparently expected his status as a private person (given more reputational protection by courts than public figures) to overcome the deficiencies of his lawsuit. But the deficiencies won and Loftis lost, having failed to show how words written by Jim Myers were somehow libelous statements issued directly by Randy Rayburn.

Loftis should have quit while he was behind. He's already on the hook for the legal fees racked up by Rayburn's defense at this point, but apparently feels the best use of a university severance package is as an accelerant for the fire consuming what's left of his reputation.

Daniel Horwitz, who defended Rayburn against Loftis' first legal leap of faith, is back on board defending against the appeal. According to Loftis, the lower court erred by refusing to read his defamation lawsuit the way Loftis would prefer it to be read: as a false light invasion of privacy lawsuit.

There are shades of difference, but the latter tort allows negative impressions to be actionable, rather than relying on actual defamatory statements made by the defendant. This is about the only choice Loftis has (other than walking away from this) considering there's no indication the statements he's suing about are anything other than Jim Myers' (not Randy Rayburn's) opinions.

It won't make any difference. The allegations remain unchanged. Loftis is still trying to twist the words of a journalist into statements made by his replacement. But nowhere in Myers' article on the cooking school will you find a direct quote of Randy Rayburn. For that matter, you'll find almost nothing in the piece that indicates the statements Loftis is suing over are anything more than Myers' take on the Nashville culinary scene. This is hammered home in Rayburn's reply brief [PDF], something neither he nor his representation probably thought they'd ever have to do.

The entirety of Mr. Loftis’s complaint concerned statements that were neither made by nor attributed to the Defendant, Mr. Randy Rayburn. In fact, at no point in the article was Mr. Rayburn even quoted. Further, nearly all of the objectively innocuous statements referenced in the article did not mention Mr. Loftis, were incapable of conveying any defamatory meaning or inference as a matter of law, and could not seriously be considered “highly offensive” by any reasonable person. Critically, Mr. Loftis also pleaded that the only statements in the article that did mention him were accurate—rendering this lawsuit “possibly unprecedented” in its frivolousness.

It goes on to point out the negative implications of the court treating this appeal with any more respect than it actually deserves.

Despite its frivolousness, however, the implications that the instant lawsuit will carry if its dismissal is not forcefully affirmed by this Court are anything but. Simply put: forcing the supposed source of a news story to defend against a $1.5 million lawsuit for the transgression of being mentioned alongside coverage that a hypersensitive plaintiff considers unflattering poses serious and severe risks to the viability of newsgathering in Tennessee. Consequently, if allowed to move forward, this lawsuit would threaten both free speech and the public’s willingness to engage with journalists at all.

I don't think Loftis has any better chance on appeal. His brief [PDF] claims the court never considered his false light claim, but Rayburn's reply points out the lower court clearly did so… and it did so right out of the gate.

Looking to the Trial Court’s actual Order, the Order’s first paragraph specifically referenced both of Mr. Loftis’s theories of relief, noting that “Mr. Loftis has filed claims for false light invasion of privacy and defamation by implication or innuendo based on statements contained in a newspaper article attached to his Amended Complaint that was written by Jim Myers and published by the Tennessean.”

Next, Paragraph 3 of the Trial Court’s Order recited the legal standards that govern both defamation and false light claims, and it correctly noted that “there is significant and substantial overlap between false light and defamation.”

Thereafter, Paragraph 4 of the Trial Court’s Order applied the law to the facts of Mr. Loftis’s Amended Complaint. After so doing, the Court held that “the statements contained in the Tennessean article are not capable of conveying a defamatory meaning and that they do not give rise to liability as a matter of law.”

At this point Loftis is doing more than just wasting his own money. He's wasting his opponent's money. Considering he's going to be on the hook for both sets of legal fees, he really should have allowed the suit to peacefully expire when the lower court declared it dead.

Filed Under: defamation, false light, jim myers, nashville, randy rayburn, tom loftis

Court Says Google Must Unmask Person Who Left Wordless, One-Star Review Of Local Psychiatrist

from the 1/5-would-not-litigate-again dept

Back in August, psychiatrist Mark Beale filed a defamation lawsuit. His target? A one-star review containing zero words written by someone using the name "Richard Hill." Beale claimed this single review, hosted by Google, had irrevocably damaged his livelihood.

In support of this, he offered several bizarre assertions. (These can be found in voluminous documentation accompanying Beale's amended complaint [PDF].)

- He had no patient named Richard Hill, so the review was bogus.

- Richard Hill was obviously a pseudonym, hence the need for unmasking. (This could also be used to disprove his first assertion, but never mind all that, I guess…)

- His mom thought someone she knew might be trying to ruin his reputation. (No, really. See p. 12.)

- His internet expert affirms one-star reviews are far worse than five-star reviews. (See pp. 51-56 of the Beale complaint.)

- A one-star review (with zero words attached) is defamatory on its face.

Why this litigation is still in process boggles the mind. But strap your brain in. It's about to get much, much bogglier.

When we first covered the lawsuit, Beale's lawyer made what seemed to be a completely ignorant statement in regards to Beale's attempt to force Google to strip the anonymity from masked one-star reviewer "Richard Hill."

Beale's attorney, Steven Abrams of Mount Pleasant, said he has handled several similar cases, and companies like Google, AT&T, Comcast and Verizon typically hand over identifying information of anonymous users.

“Why Google fought this case, I have no earthly idea,” Abrams said. “There’s not really a lot of case law (in South Carolina) ... on these types of cases because they don’t usually result in a fight.”

It turns out there's not a lot of case law in South Carolina. Well, at least not a lot of logical case law, apparently. For reasons explained thoroughly by the court -- but otherwise inexplicable given the standards applied everywhere else -- Google is being forced to strip Richard Hill's anonymity. (h/t FIRE's Sarah McLaughlin.)

It starts out promising, but quickly turns to something completely ridiculous. From the court order [PDF]:

Because South Carolina has not established a test to unmask the author of an anonymous defamatory internet posting, the Court must look to other federal and state courts for persuasive authority. State Courts have applied three different tests. Courts have required plaintiffs to demonstrate one of the following:

(1) a good faith basis warranting disclosure;

(2) evidence sufficient to survive a motion to dismiss before allowing disclosure; or

(3) evidence sufficient to survive a hypothetical motion for summary judgment.

Here, Plaintiff seeks to apply the standard requiring the least stringent proof (the good faith standard) and Google has asked the Court to apply the standard requiring the most robust proof (the summary judgment standard).

After comparing the Dendrite standard (approximately what Google was seeking) and other opinions dealing with "good faith" basis for pursuing unmasking (which includes allegations of defamation), the court decides to split the difference -- only in this case it involves a 90/10 split in favor of Beale. It accomplishes this split by deciding Richard Hill's one-star review is commercial speech, which isn't given nearly as much protection as other forms of speech.

Although Brockmeyer is the only South Carolina case on point, it did not go so far as to adopt the standard in Cahill. Cahill, quoted approvingly in Brockmeyer, is instructive; however, it is important to note that the type of speech in Cahill was political speech. In Cahill, the plaintiff was a city councilman and the alleged defamatory comments were posted on a local political website. The type of speech involved in this case is an online business review, which is commercial speech. Courts have held commercial speech should require a less stringent approach than political speech. The Ninth Circuit addressed this issue in In re Anonymous Online Speakers and suggested the standard in Cahill, although potentially appropriate for political speech, does not apply to commercial speech.

But a review of a business isn't commercial speech. It's an expression of opinion, based on a person's subjective experience. A review can be an advertisement for a business (or its competitors), but only in the way any word-of-mouth opinion is. No one sincerely believes word-of-mouth advertising is "commercial speech," with the possible exception of this court. Websites' monetization of customers' reviews doesn't convert opinions into commercial speech. This determination is not just wrong, it's incredibly obtuse.

Based on this bizarre conclusion, the court agrees to compel service providers (Google is one. Charter and Cox are the others being hit with subpoenas.) to turn over identifying info on pseudonymous reviewer Richard Hill.

The court notes it's not at the point where it can discuss the case on its merits -- not without a defendant being served and given a chance to respond. But it's not like it doesn't have that option. That the court is willing to even entertain the notion that a one-star review with zero written statements is libelous is fucking ridiculous. The complaint should have been laughed out of court after a first reading. For the judge to go further and decide a one-star review posted by an anonymous person on a third party site is somehow commercial speech is mind blowing. If this is the state of free speech protection in South Carolina, no wonder Beale's counsel seemed genuinely confused a third party would stand up for a user's anonymity.

Woe be to those who dare one-star a business in South Carolina. Fortunately, the court considers this sort of review to be "political speech."

Filed Under: anonymity, anonymous speech, defamation, free speech, mark beale, one-star, reviews, south carolina
Companies: google

Alabama Media Group Isn't Messing Around With Roy Moore's Silly Threat

from the try-us dept

Last week, we wrote about the truly ridiculous letter sent by Senate candidate Roy Moore's nutty lawyer, Trenton Garmon, threatening to sue Alabama Media Group for defamation for daring to write about reports of Moore's sketchy behavior towards girls and young women. In that piece, we noted that AMG made it clear it wasn't going to back down, noting that it stood behind its reporting and the threats only made the news organization that much more interested in "doggedly" pursuing the truth. Now, as pointed out on Boing Boing, we see the official response from Alabama Media Group's lawyer, John G. Thompson Jr.

Suffice it to say, Thompson doesn't have much time for Garmon's nonsense:

You have (now twice) threatened to sue AMG and AL.com concerning AL.com's recent reporting about Roy Moore, Kayla Moore, and their Foundation for Moral Law. You have accused AL.com of making "false reports and/or careless reporting" about multiple subjects related to your clients. Your letter demands that AL.com retract and recant its prior stories and that it "cease and desist" from any further reporting about your clients.

AL.com hereby rejects your demand. AL.com stands by its reporting regarding all of the matters addressed in your letter. AL.com has reported on newsworthy matters of significant public concern regarding your clients. Roy Moore is now, and for decades has been, a public figure. He is now running for a seat in the United States Senate. He is asking people of Alabama to financially support his campaign and his Foundation (headed by Mrs. Moore), and to vote for him. Alabamians -- for that matter, all Americans -- have a right to know about the individuals who wish to represent them in public office. Like every political candidate, Mr. Moore is subject to scrutiny and analysis by the media and the general public regarding his fitness for public office. AL.com's reporting has provided the public with important information directly relevant to that inquiry.

You accuse AL.com of defamation in purely conclusory fashion. You have not explained how anything that AL.com reported is untrue, inaccurate, or erroneous, nor do you provide any support for your position. You have also not shown that AL.com reported any of its stories with actual malice, as you know you must because your clients are public figures (a point you have admitted in in recent television interviews). To the contrary, an ever-increasing torrent of accusers and journalist investigators have publicly verified the facts reported by AL.com.

Nice, simple and to the point. While there's no doubt that Moore is a public figure (which requires the higher "actual malice" bar for defamation), it's a nice little jab to point out that Garmon himself admitted that during a TV interview.

From there, Thompson points out that any damage to Moore's reputation comes from Moore's actions, not AL.com's accurate reporting:

Your letter goes on to say that AL.com's reporting has harmed Mr. Moore's reputation. Mr. Moore, however, has quite a colorful past that long-preceded any of AL.com's recent coverage of your clients. Moreover, much of the information that you claim harmed Mr. Moore's reputation had already been published by those who know him personally and reported by other media outlets. In other words, any damage to Mr. Moore's reputation was self-inflicted and had already occurred long before AL.com's recent reporting.

And, from there, we get to the "and if you do go through with this, we'll hit back harder than you'd like" part of the letter, in which AMG says that it'll move for Rule 11 sanctions for frivolous filings, and also demand that the Moores' need to preserve any documents for any countersuit effort.

For these and other reasons, we strongly believe that any lawsuit of the type you threaten would be frivolous, and could not be brought in good faith. Should your clients nevertheless decide to pursue this matter further, AL.com will vigorously defend itself, and will employ all available remedies, including a Rule 11 motion if warranted. We are confident that litigation would not only demonstrate that Al.com exercised the utmost diligence and employed high journalistic standards in reporting these stories, but would also reveal other important information about your clients.

That last line is basically "Look, we all know that Moore doesn't want to go through discovery on this..."

We are hereby putting your clients on notice of their duty to preserve and maintain all materials, documents, writings, recordings statements, notes, letters, journals, diaries, calendars, emails, photographs, videos, computers, cell phones, electronic data, and other information that is or could remotely be relevant in any manner to any of the claims that you have made. These include, but are not limited to, all materials and information related to Mr. Moore's history of romantic relationships or physical encounters (whether consensual or not); your clients' fundraising, compensation, and finances; and Mr. Moore's speaking engagements, travel arrangements, and other expenses. As you know, failure to preserve any such materials may expose your clients to sanctions.

Reading this letter, you almost get the sense that Alabama Media Group would quite enjoy getting sued by Moore...

Filed Under: defamation, john g. thompson, roy moore, trenton garmon
Companies: alambama media group

EFF Wins Over Patent Troll Trying To Silence EFF Calling Its Patent Stupid

from the protected-speech-ftw dept

Earlier this year we wrote about the EFF going to court in California to protect it against an Australian patent troll, GEMSA, who objected to EFF naming a GEMSA patent one of EFF's "Stupid Patents of the Month." Apparently GEMSA sued in Australia, didn't properly serve EFF, and then got an injunction in Australia, which it threatened to enforce in California. EFF went to court using the all important SPEECH Act, which bars foreign judgments from being enforced in the US if they are in conflict with the First Amendment.

GEMSA, perhaps not surprisingly, declined to show up in the California court, leading EFF to move for default. A magistrate judge initially recommended against this, arguing that the court did not have personal jurisdiction over GEMSA. EFF asked the court to try again, and in a extraordinarily detailed and careful ruling, Judge Jon Tigar rejects the magistrate's recommendation and gives EFF the default judgment it sought. We've complained in the past that often the problem with default judgments is that courts are only too willing to just grant them if one party declines to show up for the case. This is not one of those situations. Tigar goes out of his way to explore pretty much every possible argument that GEMSA might have for why the court shouldn't have jurisdiction, for why the SPEECH Act should not apply and for why EFF's post may have been defamatory. And one by one by one, he points out why GEMSA is wrong and EFF is right. I won't repeat all the reasoning here, in part because there are so many different elements, though it's a fun and quick read in the filing.

Most importantly, after analyzing everything EFF put in the post, the court concludes: "In short, not one of the alleged defamatory statements would be defamatory under California law. EFF would not have been found liable for defamation under U.S. and California law." Combine that with the court recognizing that it has personal jurisdiction over GEMSA (GEMSA hurt its case here by continuing to appear in California courts in some of its patent lawsuits while ignoring this case...) and deciding that all of the elements of the SPEECH Act applies, and EFF prevails. And thus, it's protected speech to call GEMSA's patents stupid, and GEMSA can't censor EFF saying so here in California.

Given all that, we'd like to reiterate just how stupid GEMSA's stupid patent really is. It's for US Patent 6,690,400 on "virtual cabinest" and, damn, is it ever a stupid patent.

Filed Under: australia, defamation, speech act, stupid patent, stupid patent of the month
Companies: eff, gemsa

Roy Moore's Threat Letter To Sue The Press Is An Artform In Bad Lawyering

from the is-this-real-life? dept

By now it's become something of a pattern over the past few months, after many of the recent accusations come out about sexual harassment, abuse (or worse), lawyers representing the powerful men accused of such horrible acts threaten or promise to sue, often on incredibly flimsy reasons. In most cases, no such lawsuits will ever be filed. This is, in part, because the accusers know they have no case and in part because they know that if the case gets that far, going through discovery is likely to backfire big time. But, of course, for decades people have (often falsely) believed that in place of a real basis for making a legal threat, pure bluster will suffice.

The bluster in these letters is often impressive, but we have a new entrant that I think may quickly shoot to the top of the list. Roy Moore, of course, was the former Chief Justice of the Alabama Supreme Court, which would lead you to believe he knows a lot of good lawyers. And, yet, somehow, he ended up with Trenton Garmon. Garmon made some news earlier this week when he went on CNN with Don Lemon and called him "Don Lemon Squeezy Keep It Easy" But then he followed it up by sending one of the most profoundly ridiculous threat letters we've ever seen to the Alabama Media Group, the publisher of al.com, which has been reporting on Moore. You can click the link, or see it embedded below. It's fairly astounding. Beyond the poor grammar and the typos, it makes no sense.

It starts out by basically arguing that AL.com's reporting was "careless" (a bit ironic, given the mistakes in the letter) but (as is typical of threat letters of this nature) without giving many specifics. It does claim that the reporting on Moore signing a high school yearbook was untrue, but does so in a weird way:

Your client as an outlet is carelessly and perhaps maliciously reporting that my client, Judge Roy S. Moore, noted and signed a Yearbook of an accuser as a "DA" and in a manner which experts, to include our own, have confirmed is not consistent with his handwriting (To wit: structure, strokes, slant, base alignment, etc.) and does not comport to his typical vernacular.

And then it makes bizarre and nonsensical arguments about spoliation, which isn't exactly relevant here:

Please also note that per Alabama law there is a Third Party Tort for Spoliation. Thus, even if your client is not a held to have defamed or otherwise worked civil damages upon our clients, your client may remain responsible in a Court of law for damages caused by failure to preserve evidence. This is often times referred to as "Adversse Interference."

"Worked civil damages upon our clients?" Huh?

And then the letter gets into defamation, first defining defamation (poorly) and then accuses the site of having "inteionally refused to advance the truth regarding our clients." As to what, specifically, was defamatory... well, Garmon mentions that a report claimed five women have accused Moore, while Garmon says it was just two. No really. And who starts a paragraph (let alone a sentence) with the word "meaning"?

Meaning your client has used terms in reports maliciously or carelessly which has falsely portrayed our clients. Specifically your client's reports have indicated there are five [5] women accusing Chief Justice Roy Moore of sexual misconduct when in fact only two [2] women have made accusations of sexual misconduct. And both of these women have made false statements which your client has yet to publish. The other ladies which were rounded up in the witch hunt merely allege they perceived him to have made advances, but do not accuse him of any sexual misconduct.

When your claim of defamation is based on the fact that some of the women only accused your client of being a creep, rather than a full-on abuser, you're not in a very strong legal position. Also, is Garmon really suggesting that Al.com can be accused of defamation for not printing false statements? Huh?

Legal Twitter has been having a blast in response to this, though my favorite has been the pseudonymous legal blogger Tweeter @nycsouthpaw, who marked up the letter:

Popehat won't even touch it:

Some on Twitter pointed out that Garmon had his law license suspended in the past.

Incredibly, Judge Roy Moore voted to uphold Garmon's disbarment, and then just a few years later decided to bring him on as his lawyer?

Since the letter came out, Garmon has also appeared on MSNBC where he started making completely nonsensical comments about one of the hosts he was talking to, Ali Velshi, implying that because Velshi was born in Kenya (though raised in Canada) he understood why dating teenagers may be considered appropriate in some cultures. Beyond making no sense at all in trying to somehow pull Velshi into this, the comment, at the very least, appears to imply that Judge Moore did the very things the other letter sort of claims may be false, and... that it might be okay because some other cultures think something else entirely is okay. Or something. None of it makes sense at all.

“Culturally speaking there’s differences. I looked up Ali’s background, and wow, that’s awesome that you have got such a diverse background, it’s really cool to read through that," attorney Trenton Garmon said when asked why Moore would need permission from girls' mothers to date them.

“What does Ali Velshi’s background have to do with dating children, 14-year-old girls?” co-host Stephanie Ruhle interjected.

Velshi was born in Kenya, raised in Canada and graduated from Queen’s University in Ontario.

“In other countries, there’s arrangement through parents for what we would refer to as consensual marriage,” Garmon said.

“Ali’s from Canada,” Ruhle said.

“Ali’s also spent time in other countries,” Garmon said. “So it’s not a bad thing.”

“I don’t know where you’re going with this, Trenton,” Velshi said.

I'm guessing that Alabama Media Group is not exactly worried. Indeed, it has responded succinctly:

Michelle Holmes, Vice President of Content for Alabama Media Group, responded Wednesday to the letter. "Roy Moore seeks election to the United States Senate. As such a public figure, he merits and can expect intense scrutiny by the electorate and the media on its behalf, including by Alabama Media Group, the state's largest media outlet."

"We stand behind our past reporting on Roy Moore, and vow to continue to doggedly pursue the truth on behalf of the people of Alabama. These threats will not silence us, and they will not slow us."

Of course, as some have pointed out, it's possible that Moore could file a lawsuit, just so he can claim that the articles about his actions are false... but then drop the case soon after the election next month (win or lose). That seems like a risky move and could backfire in all sorts of ways, but I don't think anyone's going to be arguing that Moore or Garmon are paragons of good decision making right now. Either way, this quickly runs up the rankings of the dumbest blustery legal threat letters we've seen -- and we've seen a lot.

Filed Under: defamation, journalism, reporting, roy moore, threat letters, trenton garmon
Companies: alabama media group