Publisher Not At All Impressed By Trump's Defamation Threat Letter; Promises To Defend The First Amendment

from the good-luck-with-that dept

Last week we wrote about Donald Trump having a lawyer send out threatening letters to former top advisor Steve Bannon, author Michael Wolff and publisher Henry Holt & Co. over the publication of Wolff's new book, Fire and Fury about the Trump administration. The letter to Wolff and the publisher were notable for lacking a single statement that was actually claimed to be defamatory. As we've noted, that's often the hallmark of a completely bullshit defamation threat letter.

Late yesterday, the publisher responded. John Sargent, the CEO of Macmillan -- the publishing giant that owns Henry Holt & Co. -- first sent a strong letter to employees noting that the company would not back down, and then lawyer Elizabeth McNamara, representing Macmillan, from legal powerhouse Davis Wright Tremaine sent quite the impressive letter responding to Trump's demand. It's worth reading in full. The summary:

My clients do not intend to cease publication, no such retraction will occur, and no apology is warranted.

There's so much more worth quoting in the letter. It points out that Trump has the largest platform in the world to respond to anything he actually believes is false in the book. While the letter does not directly state this, the point is pretty clear. The point of defamation law is to be able to protect the powerless from having no recourse should they be defamed -- yet the President has plenty of power and can respond to anything that's actually wrong. But, tellingly, he has not done so.

As President Trump knows, Mr. Wolff was permitted extraordinary access to the Trump administration and campaign from May 2016 to this past October, and he conducted more than 200 interviews with President Trump, most members of his senior staff, and with many people they in turn talked to. These interviews served as the basis for the reporting in Mr. Wolff's book. We have no reason to doubt -- and your letter provides no reason to change this conclusion -- that Mr. Wolff's book is an accurate report on events of vital public importance. Mr. Trump is the President of the United States, with the "bully pulpit" at his disposal. To the extent he disputes any statement in the book, he has the largest platform in the world to challenge it. Generalized and abstract threats of libel do not provide any basis for President Trump's demand that Henry Holt and Mr. Wolff withdraw the book from public discourse. Though your letter provides a basic summary of New York libel law, tellingly, it stops short of identifying a single statement in the book that is factually false or defamatory. Instead, the letter appears to be designed to silence legitimate criticism. This is the antithesis of an actionable libel claim.

The response also points out that the letter misrepresents what Wolff claimed in order to suggest actual malice (kind of funny to see a misrepresentation being used to argue a defamatory misrepresentation...). Oh and also this:

To briefly address a few of the additional substantive claims identified in your letter, we note that you understandably cite to New York as the governing law, yet we were surprised to see that President Trump plans on asserting a claim for "false light invasion of privacy." As you are no doubt aware, New York does not recognize such a cause of action. Messenger ex rel. Messenger v. Gruner Jahr Printing and Pub., 94 436, 448 (2000); Hurwitz v. US, 884 F.2d 684, 685 (2d Cir. 1989). Not only is this claim meritless; it is non-existent. In any event, it is patently ridiculous to claim that the privacy of the President of the United States has been violated by a book reporting on his campaign and his actions in office.

As for the claims that Wolff was "inducing" Steve Bannon and others to breach their contract:

Next, your letter focuses on alleged claims for tortious interference with contractual relations and inducement of breach of contract. Yet, as your client will no doubt appreciate, timing is everything when it comes to these claims. And there is no dispute that Mr. Bannon had already communicated with Mr. Wolff freely and voluntarily well before the "notice" you have provided. Mr. Bannon plainly needed no cajoling or inducement to speak candidly with Mr. Wolff. And an after-the-fact lawyer's letter putting my clients "on notice" does not put the genie back in the bottle, much less subject Henry Holt or Mr. Wolff to liability. The law treats sources like Mr. Bannon as adults, and it is Mr. Bannon's responsibility -- not Henry Holt's or Mr. Wolff's -- to honor any contractual obligations. Indeed, your attempt to use private contracts to act as a blanket restriction on members of the government speaking to the press is a perversion of contract law and a gross violation of the First Amendment. No court would support such an attempt to silence public servants and the press.

The letter to employees is also worth reading as it talks up the importance of the First Amendment -- with citations and quotes from key important cases having to do with free speech and the First Amendment. As the letter concludes:

There is no ambiguity here. This is an underlying principle of our democracy. We cannot stand silent. We will not allow any president to achieve by intimidation what our Constitution precludes him or her from achieving in court. We need to respond strongly for Michael Wolff and his book, but also for all authors and all their books, now and in the future. And as citizens we must demand that President Trump understand and abide by the First Amendment of our Constitution.

Your move, Trump.

Filed Under: defamation, donald trump, first amendment, free speech, john sargent, michael wolff
Companies: henry holt, macmillan

By Complaining About US's 'Very Weak' Libel Laws, Trump Is Actually Shitting On Our 'Very Strong' First Amendmet

from the free-speech-is-a-thing,-buddy dept

As you likely recall, last week, lawyer Charles Harder* sent a letter on behalf of Donald Trump threatening to sue former advisor Steve Bannon, author Michael Wolff, and publisher Henry Holt for defamation having to do with the publication of Wolff's new book about Trump. The full letter to Wolff and Henry Holt & Co. was published by the Hollywood Reporter and does not list out any statements that are claimed to be defamatory -- which is often a hallmark of a totally bumptious defamation threat.

Over the weekend, during a press conference, Trump appeared to admit that he can't actually sue for defamation. In the midst of a Trumpian ramble in response to a question about the book, he includes the following:

I consider it a work of fiction and I think it's a disgrace that someone's able to have something, do something like that. The libel laws are very weak in this country. If they were strong, it would be very helpful. You wouldn't have things like that happen where you can say whatever comes to your head.

This isn't the first time, of course, that Trump has made similar comments. Early in 2016, while on the campaign trail, he famously promised to "open up the libel laws" in order to sue his critics. And, going back even further, Trump has complained about US libel laws in reference to a case he lost, where he sued a writer who said Trump wasn't really as rich as Trump claimed (Trump lost that lawsuit, no matter what his tweet here says):

For a brief moment, after the election, Trump seemed to realize that "opening up" libel laws might come back to bite him. In an interview with the NY Times he backtracked on his feelings towards US defamation law:

Mark Thompson: [A]fter all the talk about libel and libel laws, are you committed to the First Amendment to the Constitution?

Trump: Oh, I was hoping he wasn't going to say that. I think you'll be happy. I think you'll be happy. Actually, somebody said to me on that, they said, 'You know, it's a great idea, softening up those laws, but you may get sued a lot more.' I said, 'You know, you're right, I never thought about that.' I said, 'You know, I have to start thinking about that.' So, I, I think you'll be O.K. I think you're going to be fine.

Defamation law is state-based, so the President can't actually do anything to change those laws directly (indirectly is another story, but it's still difficult). But, really, Thompson's question is the key point here. He's asking about the First Amendment of the Constitution. The Constitution that the President is under oath to uphold and defend. And yet, the President is now suddenly upset.

And let's be clear: when the President complains about our "weak libel laws" and says he'd prefer it if people couldn't "say whatever comes to your head" he's not actually complaining about our weak libel laws: he's complaining about our strong First Amendment protections of free expression. And this is particularly ridiculous when we still have Trump supporters insisting that "Donald Trump has single-handedly brought back free speech" because he's made fun of political correctness a couple times.

However, Trump has made it quite clear that he's not a fan of the First Amendment when it lets people criticize him. And he's not a fan of the First Amendment when people he doesn't like are protesting. People shouldn't let him get off the hook by saying he's complaining about "weak libel laws." That's not the problem at all. The US's libel laws are not weak. Our First Amendment protections are strong -- as they should be -- and as President, he's supposed to be defending that Constitution, not complaining about how it exposes him to mild criticism.

* Harder is a lawyer for the plaintiff in the still-ongoing lawsuit against us.

Filed Under: anti-slapp, donald trump, first amendment, free speech, libel, michael wolff, steve bannon

Good News: Trump Protestors Accused Of 'Hiding Behind The First Amendment' Acquitted

from the first-amendment-still-works dept

Last week we wrote about the insanity of the DOJ's argument in trying to convict a group of protestors at Trump's inauguration. As we noted, the DOJ didn't even try to connect the defendants with any violence or property damage, but merely said that by being near the property damage they were accomplices, because they made the actual perpetrators harder to catch. When talking about the First Amendment and the right to assemble, Assistant US Attorney Rizwan Quereshi, incredibly, claimed that the defendants were "hiding behind the First Amendment." Even more incredibly, on Monday of this week another Assistant US Attorney, Jennifer Kerkhoff, tried to tell the jury that the judge's instruction about reasonable doubt "doesn't mean a whole lot", leading the judge to jump in and say that Kerkhoff clearly didn't mean to say that:

Kerkhoff: The defense has talked to you a little bit about reasonable doubt. You're going to get an instruction from the Judge. And you can tell it's clearly written by a bunch of lawyers. It doesn't mean a whole lot. But look at the last line.

The Court: So wait...

Kerkhoff: I apologize.

The Court: I know she didn't mean to say what she just said. But --

Kerkhoff:: It means a lot.

The Court: I just need to say, ladies and gentlemen, you will be instructed on reasonable doubt. You must follow each and every word of my instructions on reasonable doubt.

Kerkhoff: Yes.

The Court: Ms. Kerkhoff did not mean to trivialize any portion of it, and it's just as important that you understand --

Kerkhoff: I apologize.

The Court: -- that every word of the reasonable doubt instructions, like all the rest of my instructions, are very important.

Kerkhoff: It's an important instruction.

Well, it appears that the jury did, in fact, pay attention to the reasonable doubt instructions, and has acquitted all six defendants on all charges. That includes Alexei Wood, the journalist who was covering the protests, as well as two other defendants who were there as medics to treat anyone injured (the DOJ tried to paint them as accomplices who helped fix people up to do more damage).

This case was important for trying to criminalize reporting, but to an even larger extent for trying to criminalize protesting as a group, where all members of a protest would somehow be considered liable for any damage done by any member. Thankfully, the jury saw through it and found all defendants not guilty on all charges. One hopes that the Justice Department (which rarely loses cases) will maybe think more carefully in the future about bringing such bullshit charges against people for exercising their First Amendment rights. And that matters quite a bit, as there are 188 other defendants from the same protest who are still awaiting trial.

Filed Under: alexei wood, doj, donald trump, first amendment, free speech, inauguration, j20, jennifer kerkhoff, protests, rizwan quereshi

DOJ Wants Protesters & Reporter Convicted For 'Hiding Behind The First Amendment'

from the protect-and-defend-the-constitution dept

Employees of the federal government swear an oath to protect and defend the Constitution. Assistant US Attorney Rizwan Qureshi must have done that as well. And, among the parts of the Constitution he's supposed to defend is the First Amendment. But, as a lawyer for the DOJ he has a job to do -- and apparently sometimes that job includes making batshit insane arguments to try to throw protesters and a reporter in jail against their basic First Amendment rights to assemble and to report. This is the case against six people who were singled out and prosecuted, among hundreds of people arrested during protests around Donald Trump's inauguration. We wrote about it last month, mainly focusing on one defendant Alexi Wood, a journalist who was filming/live-streaming the protests, but still got arrested and prosecuted.

Pretty much everyone should agree that protesting is legal and protected under the First Amendment. Obviously, vandalism and property destruction are not. But, the incredible thing about this case and the arguments that Qureshi made is that he didn't even bother to claim that the six defendants participated in violence or property destruction. He just argued a form of aiding and abetting the violence and damage, just by being present, and complained that they were "hiding" behind the First Amendment. Here's a snippet from the Washington Examiner's report on the closing arguments:

A federal prosecutor said Thursday that jurors must convict six people arrested during President Trump’s inauguration because they “agreed to destroy your city and now they are hiding behind the First Amendment.”

[....]

During closing arguments Thursday, Assistant U.S. Attorney Rizwan Qureshi offered no evidence that the six committed acts of violence or vandalism, or attended planning meetings for an anti-capitalism march that ended in the arrest of about 240 people in downtown Washington.

Instead, Qureshi likened the defendants to robbery get-away drivers, guilty because they helped anonymize others in a crowd.

“That’s exactly what this sea of black was, it was the getaway car,” he said.

Think about that for a second. He's claiming they are GUILTY BECAUSE THEY HELPED ANONYMIZE OTHERS IN A CROWD.. This is pure insanity on multiple levels. First, anonymity is, by itself, protected by the First Amendment. Second, your own First Amendment rights don't get thrown out just because prosecutors can't find the actual perpetrators of violence in a crowd and decide to nab you instead. That's not how it works.

The specific argument against some of the defendants was equally crazy. Two of the defendants say that they were acting as medics for the protesters. Indeed one of them, Brittne Lawson, rather than fading into the anonymous crowd in black, was wearing a white helmet with a red cross. But check out how Qureshi spun someone being there to help people who might get injured:

“Ms. Lawson was prepared for war and she was going to make it succeed,” Qureshi said, saying she planned “to mend them and get them up on their way.”

“What do you need a medic with gauze for? I thought this was a protest,” he said. “There’s nothing wrong with being a medic, but she was aware there was a riot going on.”

WHAT?!? Being aware that a protest might turn violent, and being interested in helping anyone who might get injured in no way makes you guilty of any of the violence. And claiming that she "was prepared for war and she was going to make it succeed"? What the hell? Does Qureshi think that Doctors Without Borders is equally responsible for war crimes for mending those injured during wars?

As for Wood, the journalist who was livestreaming, Quereshi went after him for saying "whoohoo" during the livestream:

Prosecutors condensed Wood’s footage to show his utterances of “woohoo” during acts of vandalism and when police fired flash-bang grenades at protesters. “That’s not journalism,” Qureshi said. “He’s egging them on. ... I know a lot of journalists who would take issue with his coverage.”

It's true that many journalists would take issue with that kind of coverage, but one of the great things about the whole First Amendment is that doesn't fucking matter. Just because other journalists approve or disapprove of someone's style or coverage or opinions doesn't shed them of their First Amendment rights. Thankfully, Wood's lawyer pointed out that the government doesn't get to decide what's good journalism vs. bad journalism. That's the very crux of the First Amendment.

And, again, it gets worse. Qureshi claims that because he, himself, was ignorant of a common term of how police round up protesters, while Wood was aware of it, it somehow proves he's not a journalist. I only wish I was kidding.

Qureshi questioned why he would know certain terms, such as “kettling,” which refers to a police tactic of surrounding activists. The term kettling often is used by protest-rights advocates who view it as an illegal strategy.

“How’s he a journalist and he’s talking about a ‘kettle’? I didn’t know what a kettle was before this case, did you?” Qureshi said.

Qureshi apparently said the same thing about the fact that Wood knew the term "black bloc." This is a really cynical ploy, basically trying to tell the jury that because a journalist is actually knowledgeable about protests and police, it somehow no longer makes him a journalist. Shouldn't this actually be more evidence that he's a journalist? That he actually researched information on the protests and protesters and knew common slang and situations?

There were many more crazy things said -- you can read many more quotes at the Unicorn Riot Twitter feed -- but this seems like a really, really weak case, with a really, really crazy prosecution position by the DOJ.

But, take a step back and think about what Qureshi's arguments would mean if accepted. It would mean that merely being outside near a protest would put you at risk of serious criminal liability -- just because you might incidentally help make others anonymous or hidden. That is not and cannot be the law. And you know who knows that? Assistant US Attorney Rizwan Qureshi. In an interview he gave two years ago, he talked about the importance of being "engaged in your community, no matter where it is" in order to do things like "eradicate hate" and "fight hate." And yet, here he is, just a couple years later, trying to throw people in jail for publicly engaging with their community to try to fight hate.

Filed Under: alexi wood, brittne lawson, doj, donald trump, first amendment, free speech, inauguration, journalism, protests, rizwan qureshi

Sheriff Thinks He Can Use Bogus Disorderly Conduct Charges To Shut Down Speech He Doesn't Like

from the christ,-what-an-asshole dept

A Texas sheriff did some pandering to his base this week, ultimately making a fool of himself. On Monday, Sheriff Troy Nehls posted the following to Facebook:

If you can't see it, it's a photo of a truck with a decal attached to the rear window. The decal reads:

Fuck Trump and fuck you for voting for him

Here's what Sheriff Nehls wrote:

I have received numerous calls regarding the offensive display on this truck as it is often seen along FM 369. If you know who owns this truck or it is yours, we would like to discuss it with you. Our Prosecutor informs us she would accept Disorderly Conduct charges regarding it, but I feel we could come to an agreement regarding a modification of it.

This is stupid on every single level. First off, as former police officer and current attorney Greg Prickett points out in his post at Simple Justice, there's no way those charges would stick.

Sheriff, that's political speech, and it's protected speech. You don't get to silence it because you don't like it, or even because it offends you, the District Attorney, or anyone else. The Disorderly Conduct statute in Texas is very clear on this.

You can charge someone with Disorderly Conduct if "the language by its very utterance tends to incite an immediate breach of the peace," or if the "display tends to incite an immediate breach of the peace…" That hasn't happened here. If Fonseca and her family have been driving around for almost a year and there have been no fights, no disturbances, no riots or so forth, you are not going to be able to prove that there was a danger of an "immediate breach of the peace."

Instead, Nehls may have rained down fire on his own idiotic head by pursuing it.

What you may have, instead, is another crime, a much more serious crime, being threatened by Sheriff Nehls. If Nehls goes through with his threat, it could very well meet the elements of the offense of Official Oppression, which states:

(a) A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful…

Now, let's get to the rest of the moronic post.

It is highly doubtful the Sheriff has "received numerous calls" about a window decal. Even given the sorry state of Americans' understanding of the First Amendment, most people would realize a sweary decal is not a law enforcement issue. More likely, the Sheriff or one of his deputies spotted it and took a photo or, at best, a concerned citizen sent it to the apparently pro-Trump Sheriff in hopes that he would abuse the law to shut down protected speech. (If so, well played, citizen. Everyone loves an American who believes in less rights for people they don't agree with.)

Next, the "discussion" proposed by the Sheriff is a bait-and-switch. Unlike most bait-and-switch purveyors, Sheriff Nehls is too excited about prosecution to allow the bait to do its work. By pitching it as a voluntary interaction, Nehls covers his ass on official oppression. But he immediately uncovers it by referring to a prosecutor just dying to punish protected expression with a bogus disorderly conduct charge.

That brings us to perhaps the stupidest part of Nehls' post. Nehls states a prosecutor is willing to move forward with charges. That appears to be a lie.

KHOU 11 News also reached out to the Fort Bend County District Attorney.

He says the Sheriff never consulted him before posting the suggestion the driver may be charged with disorderly conduct.

He made it clear his office would not accept charges against that driver simply because of the profanity and message on the truck.

It's unclear who Nehls is referring to. This prosecutor is a he (Nehl's post refers to a "she"), and he apparently would be in charge of prosecuting cases brought to him by the Sheriff. I suppose he could be referring to one of the other prosecutors in the DA's office, but all cases would presumably be signed off by the DA himself before moving forward. If one of them offered to help the Sheriff fight his battle against the First Amendment, they would be aiding and abetting official oppression.

Having outed himself as a law enforcement official willing to oppress speech under the color of law, Nehls gracelessly deleted his Facebook post. He then went on to issue a statement to the effect of "I just wanted to talk to this person about their bumper sticker… but with the dangling threat of prosecution as a backdrop."

Nehls addressed the post in a press conference Wednesday afternoon.

"People have called and are offended by the language," said Nehls. "I simply want to talk to the owner and say 'Look the last thing we need to do is have anyone have any confrontation over the language on your truck.'"

But this can't possibly be true. If all Nehls wanted to do is talk, he had plenty of time to do so. And he could have done it without dragging the vehicle owners into his social media debacle. But it appears he'd rather grandstand on Facebook than do actual police work and, you know, track down the owners of the vehicle. Even with the head start of license plate database access and its favored route of travel, the local news team managed to be the first people to actually talk to the truck owners.

KHOU 11 News tracked down the owners of the truck, Karen and Mike Fonseca. They are stunned and angry that Nehls would start this debate on Facebook instead of calling them personally.

They say they're entitled to their free speech.

"There's no law against freedom of speech, nothing in the law book here in Texas, I've been stopped numerous times, but they can't write me a ticket," said Karen Fonseca.

The truck owners are more right in two sentences than Nehls was in a Facebook post and ensuing press conference. They are definitely right to be angry about Nehls' casual abuse of office that turned them into targets for hate from like-minded fans of free speech curtailment.

Above all else, Sheriff Nehls is a disingenous asshole.

The sheriff said he wants to avoid a situation where somebody could take offense to the sign on the truck, possibly leading to a confrontation.

"I don't want to see anything happen to anyone," Nehls said. "With people's ... mindset today, that's the last thing we need, a breach of the peace."

Then why the fuck would you post a photo of the truck and decal to Facebook? You're just begging for a "breach of the peace." You've turned the owners into a target for pro-Trump partisans and people who like to yell at other people for public swearing. You pulled some petty bullshit under the color of law and have the audacity to claim your foremost concern is the truck owners' safety. If this is what the public gets to see of your mindset and retaliatory nature, one can only imagine what goes on behind the scenes.

Nehls says he wants to "come to an agreement regarding a modification" to the anti-Trump decal. I can suggest one, but I doubt the Sheriff will like it.

And, of course, as I put the finishing touches on this post comes the news that Fonseca has been arrested -- though for an outstanding warrant.

Filed Under: decal, disorderly conduct, donald trump, free speech, fuck trump, karen fonseca, mike fonseca, texas, troy nehls