Rep. Devin Nunes Now Threatening To Sue Fellow Congressional Reps

from the frivolous-lawsuits-for-everyone dept

It really wasn't that long ago that Rep. Devin Nunes was a co-sponsor of the Discouraging Frivolous Lawsuits Act. Of course, since then, he's been filing a whole bunch of frivolous lawsuits against news organizations, journalists, political operatives, critics, and, most famously, a satirical internet cow.

At times he's admitted that these lawsuits are about fishing for journalist's sources, but it certainly seems pretty clear that this is all an intimidation campaign, by a silly little man who is an elected representative in Congress and simply can't handle criticism. Of course, as more evidence comes out that, at the very least, suggests that Nunes is somehow tied up with all of the mess around impeachment -- including reports revealing that the indicted Lev Parnas spoke by phone with Nunes -- he seems to be getting more and more upset with anyone calling him out.

The latest is that fellow California Representative Ted Lieu noted on Twitter that Nunes' lawyer sent him a letter threatening to sue Lieu for saying "that Nunes conspired with Parnas."

Unfortunately, Lieu hasn't yet released that letter, but I'm hoping he does. I'd be curious to see if Nunes tries to sue Lieu in Virginia like most of his other lawsuits, rather than California. Also, I'd love to see how Nunes and his lawyer think they can get around the Speech or Debate Clause.

In the meantime, Ted Lieu, we really could use more people in Congress supporting a federal anti-SLAPP law. Seems like now might be a good time for you to support such a law, right?

Filed Under: 1st amendment, anti-slapp, defamation, devin nunes, free speech, lev parnas, slapp, speech or debate clause, ted lieu, threats

Dear Larry Lessig: Please Don't File SLAPP Suits

from the what-a-disaster dept

Anyone who reads Techdirt knows that I've been heavily influenced by Larry Lessig, and have learned a lot from him. There still are many areas where I have and continue to disagree with him, but on the whole, when he comes up with a project, or writes about something, I am compelled to listen to him. I often appreciate his willingness to effectively take on big, crazy, impossible challenges -- ones almost certainly destined to fail -- in support of a principle or an idea. In recent years, this has included his ill-suited campaign for President, his flopped attempt to create an anti-SuperPAC SuperPAC, his plan to change the way the Electoral College works, his attempt to call for a Second Constitutional Convention (to route around Congress to amend the Constitution), and, even (tragically) his attempts to use the courts to end copyright term extensions. Even when I thought the ideas were a bit silly, the very least you could say about Lessig was that he was willing to take crazy chances to make changes in the world that he thought would improve the world. You could say that he was the living embodiment of the idea that, rather than complaining about the system, you need to make a real effort to change the system, no matter how quixotic that effort might be.

And, even when I disagreed with him or thought his projects to be misguided or silly, I still supported his willingness to put his best ideas out there and try to come up with clever ways to make them a reality. Indeed, I found much of it to be admirable and principled.

However, I cannot and will not support his latest crusade, which is a dangerous attack on free speech, and frankly goes against everything that I thought Lessig stood for. Indeed, to me this move undermines much of Lessig's legacy, and forces me to rethink my past support for him and his projects. The short version is that Lessig has filed a defamation lawsuit against the NY Times, its executive Editor Dean Baquet, its Business Editor Ellen Pollock, and reporter Nellie Bowles. Lessig is upset about the way some blog posts he made were portrayed by the NY Times. And you can, perhaps, understand why. The NY Times' framing of Lessig's positions, regarding Jeffrey Epstein and his funding of MIT's Media Lab, was, at the very least, shaded in a manner that did not portray the nuance that Lessig hoped to convey in his Medium posts on the matter. But not fully portraying the nuance is not defamation.

Furthermore, Lessig appears to be using this to kick off much more of a campaign against free speech and a free press, by saying this is his attack on what he calls "clickbait defamation." This is, unfortunately, the same sort of framing that lots of people have been using to go after journalists of late, when they don't like the framing or how they're portrayed in the media. In short, Larry Lessig appears to have filed a SLAPP suit. And that's tremendously disappointing.

Let's take a step back. Lessig was tangentially associated with the mess last fall regarding Jeffrey Epstein's donations to the MIT Media Lab, which was run by Joi Ito. Reports detailed how Ito cultivated a relationship with Epstein, and then later sought to hide it from various people -- including those associated with the Lab. Ito has long been considered one of the "good" people in the tech world, and this situation upset many people who were shocked to find Ito's involvement, and his ethically dubious decisions. Ito, after immense public pressure, resigned from the Lab.

Lessig, who has known Ito for many years, had signed a petition in support of Ito prior to all of the details coming out and prior to his resignation. This raised some eyebrows among those who felt that Ito's decisions had clearly crossed a line. After Ito resigned, Lessig -- as he's been known to do -- took to Medium to effectively work through his thoughts on the matter. He revealed that Ito had sought his advice before taking the Epstein investment. Lessig, who has publicly discussed how he was sexually abused as a child, had acted as something of a sounding board for Ito on whether or not it was inappropriate to take money from someone accused of similar crimes. It was clear that Lessig had extremely mixed feelings about the whole thing and was trying to "write through" his thoughts. While I can see -- and sometimes support -- the idea of writing out ideas where you're unsure of where to eventually land, doing so almost always risks people taking some of the statements (especially "on the one hand, on the other hand" or "here's how I thought about it back then..." statements) completely out of context.

Without getting into the full text of Lessig's piece (though I recommend reading it), many, many people (including many supporters of Lessig) reacted very, very negatively to it. For what it's worth, my own reaction was that, in it, Lessig appeared somewhat tone deaf to the actual concerns with accepting the donations, and made a bunch of assumptions that weren't necessarily accurate -- but again, giving him the benefit of the doubt, I found it interesting that he was really clearly trying to struggle through the conflicting feelings he had about the whole mess. In particular, I actually appreciated that Lessig did what few people are willing to do: to try to break down exactly his mindset in making a decision that -- in hindsight -- he now recognized was a mistake. And thus, part of his essay could be read as a "defense" of the original decision to support Epstein's donation to MIT's Media Lab.

And that quite reasonably upset people, though, for sometimes different reasons. Some were upset that they believe he was rationalizing his support for Ito taking Epstein's money. Some were upset that they read this (perhaps inaccurately) as a defense of Ito taking the money. And some were upset that his attempt to put himself back in that original mindset suggested that, even at the time, his thinking on this was... not great. Particularly troublesome (to me, at least) was his assumption of why he felt that Epstein wanted to donate to MIT (Lessig suggested it was an attempt to rehabilitate his image) and why, at the time of the initial donation, he thought it might be okay for MIT to take it: if they did it in a way that did not allow him to burnish his reputation.

Specifically, Lessig suggested that Epstein was what he referred to as a "Type 3" donor, who he described as:

Type 3 is people who are criminals, but whose wealth does not derive from their crime. This is Epstein, but not just Epstein. It may be that we’ll discover that Epstein got rich by blackmailing people whom he had encouraged or enabled to commit abuse. I doubt it, but it’s possible. Suffice it that when Joi was investigating whether that criminal continued his crime, no one was suggesting that his enormous wealth was the product of blackmail or sex slavery. He was, the world assumed, a brilliant, savant-like investor, who was also a sexual predator.

He then noted that if a university were to take such money, it should not be used to "forgive" the donor:

I think that universities should not be the launderers of reputation. I think that they should not accept blood money. Or more precisely, I believe that if they are going to accept blood money (type 4) or the money from people convicted of a crime (type 3), they should only ever accept that money anonymously.

And, later, he specifically said: "IF you are going to take type 3 money, then you should only take it anonymously."

There actually is an interesting question buried in all of this, which Lessig sort of mentions in passing, but never explores that in-depthly. If a "bad" person makes a ton of money, what should happen to all that money? Is it effectively tainted forever? Could no one accept the money from that person and use it for good and the advancement of good? That's... a big philosophical question, and Lessig hints at it, but doesn't go too deep on it.

Still, the larger point behind Lessig's essay was that this level of thinking -- where his mind was back when he had supported Ito's decision -- was clearly wrong. And he was trying to understand why it was wrong and why he had made that mistake. Later in the essay he makes this explicit:

But what I — and Joi—missed then was the great risk of great harm that this gift would create. Sure, it wasn’t blood money, and sure, because anonymous, the gift wasn’t used to burnish Epstein’s reputation. But the gift was a ticking time bomb. At some point, it was destined to be discovered. And when it was discovered, it would do real and substantial pain to the people within the Media Lab who would come to see that they were supported in part by the gift of a pedophile. That pain is real and visceral and substantial and not taken seriously enough. And every bit of emotion and outrage from victims that I have seen in this episode is, in my view, completely justified by the completely predictable consequence of that discovery.

Either way, the NY Times published an article by reporter Nellie Bowles, entitled: A Harvard Professor Doubles Down: If You Take Epstein's Money, Do It in Secret. So, does that misrepresent the larger point of Lessig's piece? Absolutely. But does he say that? Well, yes, he does. And, while I've had many, many concerns about the way in which I believe the NY Times often does a terrible job misrepresenting things -- and have even called out what I believe is sloppy reporting on the part of Bowles -- to argue that this particular framing is defamatory... is very problematic.

But that is what Lessig has done. He argues that this is "clickbait defamation." He argues that the headline and the lede (the opening text beneath the headline) are misleading, and designed to draw people in by being misleading. Lessig is going even further than just filing a lawsuit. He's created an entire website called "ClickbaitDefamation.org" and started a podcast about the issue (which he claims will go beyond just his own lawsuit).

But, there are significant problems with this:

1. This is legally preposterous.
2. This will cause real harms for those he sued.
3. This creates a massive chilling effect on a free press.
4. If, somehow, he succeeds, it will open the floodgates for more abusive lawsuits

As for it being legally preposterous, lawyer Ken "Popehat" White has explained that while Lessig's complaint is basically just with the headline and lede of the story, defamation law requires that the court judge the entirety of the context within which the statement is made. You don't get to cherry pick. Indeed, it's somewhat ironic that part of the complaint here by Lessig (and in similarly questionable defamation lawsuits) is the argument that the press "cherry picked" a statement, and didn't give the full context. Yet, that's what Lessig himself is doing in arguing that just the headline and the lede are what is defamatory.

Because if you look at the whole of the article, it does provide the nuance. Joshua Benton from the Nieman Lab did a nice job breaking down how everything that Lessig claims is somehow defamatory, are actually things he said. It may be true that Lessig doesn't like how the headline portrayed his position, but nothing they said is defamatory.

John Roddy makes an interesting point that perhaps one could argue that the fact that the article itself (but not the headline and lede) are behind a (fairly porous) paywall could somehow change the calculus, but that seems unlikely to fly in any court.

Either way, the entire crux of Lessig's lawsuit is about splitting hairs. The NY Times headline and lede suggest that Lessig was "defending" MIT soliciting and accepting donations from Epstein, when what he was more doing was trying to understand why he did support the idea years back -- and then explaining why he was wrong. But, that doesn't change the fact that many, many people certainly read Lessig's piece as a defense of the Epstein donations. The fact that many people misunderstood is also why Lessig later added an addendum and tried to clarify. Yet, now he's suing the NY Times, its reporter and two editors, because they may have misunderstood it in the same way lots of people did.

Larry, if so many people misunderstood your intent with the article, perhaps the problem was with how you wrote it. You don't get to sue over that.

What troubles me, though, is that of all the people out there, Larry Lessig should know more than others how much pain and pressure a lawsuit can cause people. You could argue that it's one thing to just sue the NY Times, but he added individuals as well. Now, it's quite likely that the NY Times and its more than capable lawyers will handle the legal work for each of the individual defendants, but it will still create a massive headache in terms of time, energy, and attention that must be put forth.

In addition, merely by suing, Larry Lessig is creating a chilling effect. I've spent nearly a whole freaking day writing this article, and I'm trying to choose each word -- especially in my description of what Lessig wrote -- extra damn carefully, because he has now shown, that if he doesn't necessarily agree with your take, and thinks that you're engaging in "clickbait," that he can or should sue for defamation. I'm kind of shocked, because the last thing I ever expected is that I would feel intimidated and chilled by Larry Lessig. And, yet, here we are.

And, should Lessig somehow (miraculously) win, this will set off a ton of bogus, chill-inducing SLAPP suits. As someone who has written literally tens of thousands of headlines, it is impossible to include all relevant and salient points in a headline. It is impossible to include all nuance in the headline. Headlines are supposed to show the interesting bits. Yes, you can argue that clickbait is a bad practice, but highlighting a key point in a headline and then including the relevance and nuance elsewhere is part of journalism. Saying that every headline must include all nuance is literally impossible. Even worse, it would open up the floodgates for all sorts of crackpot SLAPP suits.

The fact that he has set up a dedicated website and a podcast about "Clickbait Defamation" makes me worry that this may be one of his latest crusades: to "open up our libel laws" and expand the definition of defamation to include the idea that a headline and lede, that don't show all facts or all nuance, open you up to a defamation claim. And that would create a massive chilling effect on the press.

Larry: don't let this be your legacy.

And while I can understand why Lessig -- a resident of Massachusetts -- sued in Massachusetts, I will note (as I know all too well and all too personally) that Massachusetts has an incredibly weak anti-SLAPP law that only applies to speech petitioning the government. Massachusetts needs to pass an updated anti-SLAPP law that stops these kinds of suits (and the federal government should pass one as well, to guarantee that anti-SLAPP laws apply in federal court as well). But, the real shame here is that someone I have looked up to and been inspired by in the past, is now filing a lawsuit like this and pushing for an interpretation of the law that will harm journalists. It is a true shame. It is surprising. But, mostly, I am so very disappointed in Larry.

Filed Under: 1st amendment, anti-slapp, clickbait defamation, defamation, framing, free speech, jeffrey epstein, joi ito, larry lessig, nellie bowles, slapp
Companies: ny times

Anti-SLAPP Laws Work: Tennessee Doctor Suing Patient Over Negative Review Drops Lawsuit

from the sucks-when-it's-suddenly-YOUR-money-on-the-line dept

Tennessee is home to an overabundance of BS defamation lawsuits. It must be something in the air area. (See also: Virginia, and Kentucky) Now that the state has a decent anti-SLAPP law, things should start changing. And it may start with Dr. Kaveer Nandigam of Nandigam Neurology in Murfeesboro, Tennessee.

Dr. Nandigam decided to test drive the new law by doing one of those things that always works out well: suing a patient over a negative review. Kelly Beavers was his target. She had visited his office with her father, who was being seen for early signs of dementia. Beavers recorded the appointment on her phone, as she always does, to make sure she had all the information she needed to care for her father.

Nandigam did not like being recorded. He told her to stop recording and demanded she hand over her phone. He also told her to delete the recording, which she did. Beavers -- understandably angered by Nandigam's treatment of her -- complained about his actions on Yelp.

This "Dr's" behavior today was totally unprofessional and unethical to put it mildly. I will be reporting him to the State of TN Medical Review Board and be filing a formal complaint. How this guy is in business is beyond me. Since when did they start allowing Doctors, to throw a complete temper tantrum in front of Patients and slam things when they get upset? He does not belong in the medical field at all.

For this, Nandigam sued. Kelly Beavers, who had done nothing more than express her opinion about the doctor, ended up starting a GoFundMe to raise the $25,000 needed to defend against Nandigam's baseless libel accusations. Fortunately for Beavers, attorney Daniel Horwitz stepped up to defend her.

Horwitz has been fighting an uphill battle against baseless libel lawsuits in the libel lawsuit-friendly state. He represented culinary school director Randy Rayburn, who was sued by the person he replaced for things a journalist said in an article about Rayburn's culinary program. Yeah, that's how screwed up things were in Tennessee before its new anti-SLAPP law went into effect.

The new law makes things much more painless for defendants facing bullshit lawsuits. And it makes things easier for Horwitz, who obtained a voluntary dismissal [PDF] from Dr. Nandigam shortly after filing this motion to dismiss [PDF] under the state's anti-SLAPP law.

Vague claims of defamation generally kill lawsuits dead. They also signal the plaintiff is hoping to bludgeon someone into a settlement, rather than actually seeking to have a wrong righted. That's what happened here and that's why Nandigam made the smart move to dismiss the lawsuit, rather than allow the bleeding to continue. With the anti-SLAPP law in place, it's his blood on the line, rather than the defendant's.

[T]he Plaintiff has failed to plead the substance of any of the allegedly defamatory statements at issue or to attach the statements as exhibits to its Complaint. These omissions serve to deprive both the Court and the Defendants themselves—who are being sued for not only their own statements, but also for one another's allegedly defamatory statements—of any opportunity to determine what, specifically, the Plaintiff alleges is defamatory. Given this context, the Plaintiff's failure to plead the substance of its defamation claims as required compels dismissal as a matter of law.

Pounding the point home further, the motion addresses the statements made in Beavers' complaint, much in the way Dr. Nandigam's complaint did not.

[N]one of these statements is capable of a defamatory meaning as a matter of law for several reasons. In particular, these statements: (1) are based on fully disclosed, non-defamatory facts; (2) are statements of subjective opinion; and (3) are incapable of being proven false.

Tennessee's anti-SLAPP law means that Nandigam ability to bully Beavers via lawsuit is limited, and thus he has decided to drop the lawsuit. It's been dismissed without prejudice which means Nandigam could try to refile, but given the lack of actionable allegations in his first complaint, it seems unlikely taking another pass at it later will somehow conjure actual defamation out of thin air. Anti-SLAPP laws protect people from being bullied for their speech. We need more of them.

Filed Under: 1st amendment, anti-slapp, doctors, free speech, kaveer nandigam, kelly beavers, reviews, slapp, tennessee
Companies: nandigam neurology

The Rorshach Test Of The Covington Catholic Boy's DC Encounter Now Extends To Bogus Lawsuits And Confidential Settlements

from the everyone-sees-what-they-want-to-see dept

Buckle up folks, because this story takes a few twists and turns, and some of them may make you angry -- though I hope people will hold back their kneejerk reactions, because that kind of thing is what created this mess in the first place.

As you probably recall, a year ago, there was a whole viral media shitstorm regarding an encounter in Washington DC between some kids from Covington Catholic High School in Kentucky, Native American activist Nathan Phillips, and a bunch of other people, including members of a group known as the Black Israelites, who appeared to be egging everyone on. A first video that made the viral rounds on Twitter just showed the encounter between CCH student Nick Sandmann, clad in a red MAGA hat, and staring down Phillips who was banging a drum. Later videos added in more context, including the Black Israelites and their role in the whole thing. One of the points a few people raised is that your interpretation of the whole thing is very much a Rorschach test for what you already believe. You can reasonably argue that people completely misrepresented the encounter and you can reasonably argue that they did not.

It is a subjective issue. You see it through your own context and experiences, and it comes down to each and everyone's opinion. I'd personally argue that there was a little bit of truth in nearly all of the viewpoints, and not having the entire context is not akin to false statements, but rather simply not having the full picture. As more context was added, many people changed their views, and that's cool too.

But given that these are subjective opinions, the idea that one might sue over them is simply batshit insane. And yet, people rushed to sue. In particular, we highlighted how the CCH student at the center of all of this sued the Washington Post, and later both NBC and CNN, for their coverage. Sandmann was represented by L. Lin Wood and Todd McMurtry. (For what it's worth, Wood recently lost that high profile defamation case against Elon Musk on behalf of cave diver Vern Unsworth). We found little in the lawsuits to be compelling, and were not at all surprised when a judge tossed out the one against the Washington Post, noting that everything they published was protected by the 1st Amendment. However, that case has been reinstated on fairly narrow grounds, following an amended complaint that targets some very specific language used by the Post. I'd still be surprised if he won, but the more narrow claims do at least have slightly more validity to them, especially if the court agrees that Sandmann is not a public figure (which would lower the bar for a defamation claim).

Earlier this week, news broke that CNN and Sandmann had agreed to settle that complaint -- and once again we had a bit of a Rorschach test. The terms of the settlement appear to be totally confidential, which is disappointing, but not at all uncommon. It is, in fact, possible that no money exchanged hands at all. However, many people who support Sandmann are insisting that this is vindication for him, even if that's not at all clear. Some are even saying that CNN must have paid "in the millions." Again, no information on the settlement is public, and to say that this was vindication or to speculate on any settlement amount seems ridiculous -- especially given that the entire thrust of the lawsuit was about news media commenting on issues without knowing the full details or context of the story.

But the story then got even stranger. Because on Wednesday, PJ Media had a headline trumpeting that author Reza Aslan would "face the music" for tweeting that Sandmann had "a punchable face." Already that should have raised alarm bells, because there is literally nothing at all defamatory in saying someone has "a punchable face." PJ Media -- who at times pretends to support free speech -- acted as though this was a legitimate lawsuit. Of course, tellingly, even though they said they had a copy of the complaint, reporter Tyler O'Neil did not link to or publish the lawsuit. Perhaps because it's utter and complete garbage. You can read it here.

It was actually filed last August. And here's where we'll go back a bit. Right after the original Sandmann incident, we had noted that infamously silly lawyer Robert Barnes, who has filed multiple trollish lawsuits that have flopped spectacularly, announced that he would represent any of the Covington kids pro bono in filing lawsuits.

Yet, you will note that Sandmann's lawsuits were not filed with Barnes as his lawyer, but Lin Wood and Todd McMurtry. However, the lawsuit that PJ Media was trumpeting, about a comment on Sandmann, was filed by Barnes. So this lead to some head scratching. Had Sandmann retained both lawyers for different cases? The answer is no. Barnes simply filed lawsuits on behalf of the Covington kids as John Does.

It's not even clear that any of the Covington kids are actual clients of his. They may be, but the filing doesn't confirm that this is actually true. And the key Covington kid, Sandmann, has made it absolutely clear that he is not a Barnes' client, and that this lawsuit is obviously bullshit -- because with regards to Aslan's statement, it only references Sandmann (and his allegedly "punchable face") rather than any of the other Covington kids:

If you're unable to see that image, it's Sandmann asking Barnes on Twitter:

... would you like to explain why you’re suing for me without my permission? You’ve blocked my lawyers on twitter and now claim you’re suing over the Reza Aslan tweet? Retract and stop lying to the public.

Yes. Barnes can claim all he wants that he’s filed it on behalf of the covington kids but we both know that isn’t true. Reza’s tweet references only one kid, and i take up a majority of the picture. The article he even linked (now deleted) stated this.

It clearly states it’s about me in the title!

And we're not done with the strangeness yet. The lawsuit itself was filed last August. So why was it making news now? Because Aslan just deleted that tweet. Why did he just delete that tweet now, a year later? Because Barnes only just now served Aslan:

It's unclear why Aslan even bothered to delete the tweet, other than perhaps a kneejerk reaction upon being served. There's nothing defamatory at all in what he said. The lawsuit itself is ridiculous. Beyond Aslan, there are a bunch of other plaintiffs who merely stated various opinions about Sandmann (mostly, rather than the supposed "John Does"). Aslan's co-defendants include Elizabeth Warren, who tweeted "Omaha elder and Vietnam War veteran Nathan Phillips endured hateful taunts with dignity and strength, then urged us all to do better." What's defamatory about that? Barnes' suit claims that she "omitted the true facts." But that's not how defamation works. Other defendants include NY Times reporter Maggie Haberman, ABC News commentator Matthew Dowd, Mother Jones Editor-in-Chief Clara Jeffery, historian Kevin Kruse and more. None of what any of them said was defamatory.

And, again, the entire lawsuit is completely laughable, and it's not even clear who Barnes' clients really are. Yet, when PJ Media (and Barnes) framed it in a way that suggested to people that the lawsuit against Aslan (who supposedly is going to "face the music") was on behalf of Sandmann, the Rorschach test continued, with tons and tons of Sandmann's supporters cheering on a nonsense lawsuit. Indeed, some of the commentators even appear to believe that the CNN settlement was done by Barnes:

It goes on like that for a lot longer, but you get the idea. Notice that basically all of them are doing exactly what Barnes and Sandmann/Wood/McMurtry are suing over: commenting enthusiastically about a story where they only know a small piece of the details, and possibly have the large crux of the situation wrong. Particularly silly is that many of those commenters egging on a completely bogus attack on free speech pretend to be "free speech supporters."

And, of course, then Sandmann's actual lawyer Lin Wood had to go on Twitter and demand that Barnes cease and "correct his prior false statements." It includes what appears to be a threat to take legal action:

Again, here's the text if you can't view the screenshot:

Nicholas Sandmann has many legitimate defamation cases remaining for resolution through litigation. @ToddMcMurtry & I prefer to focus on those matters & not be forced to take legal action against another lawyer but Robert E. Barnes crosses line with his claims about Nicholas.

Barnes has been previously warned to stop publicly suggesting or stating that he represents Nicholas. In response, Barnes “blocked” @ToddMcMurtry & me on Twitter. Barnes apparently cannot control his desire to garner publicity by falsely using Nicholas’ name.

For those who can access @Barnes_Law & support his legal efforts for others, please remind him that he cannot “block” a formal demand letter, a civil complaint, or an ethics complaint. I hope he finally gets the message.

If Barnes does not cease publishing & then correct his prior false statements, Nicholas’ attorneys are fully prepared to take legal action against him. So Barnes can take the easy way out or he will get out the hard way - we will sue him. His choice.

Later, Wood (hilariously) claimed that Barnes is "on the right side of CovCath issue." Which, uh, no.

But, once again, this is all a form of a Rorschach test, and everyone seems to view the story through their own particular prism -- as did all of the initial commenters that Wood/Sandmann/Barnes/whoever are suing. And that's why all of those lawsuits are such bullshit. People reacting to news is not defamation. People not having the full context is not defamation. People expressing their opinion, or explaining how they view things, is not defamation. And the people who have responded to all of the news this week are doing exactly the same thing they seem to think others should be sued over.

So, maybe, just maybe, the best thing here would be stop filing so many bullshit defamation lawsuits, and recognize that free speech sometimes includes speech we don't like, and that includes people not fully understanding the context. But, of course, that's not going to happen. Indeed, Sandmann's other lawyer, Todd McMurtry has instead promised to get back to suing more people:

Sigh.

Filed Under: 1st amendment, cch, covington catholic high school, defamation, elizabeth warren, free speech, l. lin wood, lin wood, nathan phillips, nick sandmann, opinions, resa aslan, robert barnes, rorschach test, todd mcmurtry
Companies: cnn, nbc, washington post

Connecticut Cop Sues Local Blogger To Get Him To Turn Over Personal Info On Commenters Who Said Thing The Cop Didn't Like

from the ignorance-of-the-law-is-going-to-get-your-civil-suit-tossed dept

A Connecticut cop, who doesn't like the things commenters said about him on a local blog, has decided he's legally in the right to demand the identifying info of those commenters from the person who runs the blog.

Hartford police Lt. Vincent Benvenuto has filed a lawsuit in state court against Kevin Brookman, a Hartford resident who runs the popular We The People Hartford blog, seeking the identities of people who post comments.

The lawsuit does not seek money damages, but does seek to know who is posting anonymously on Brookman’s blog, said Benvenuto’s lawyer, Patrick Tomasiewicz.

“It’s a pre-suit discovery petition to try to determine what the source is or who the sources are of disparaging and defamatory comments made against Lt. Benvenuto," Tomasiewicz said.

The "Bill of Discovery" [PDF] lists a lot of things that sound like protected speech, rather than defamation. There's a long list of comments Lt. Benvenuto takes offense at, but a lot of commenters (who Benvenuto insists are actually other cops) making opinionated statements isn't the best foundation for a libel lawsuit.

a. An August 5, 2019 thread disparaging the Plaintiff in a discussion regarding an ongoing HPD investigation;

b. An August 28,2019 thread accusing the Plaintiff of sleeping during his shift and appearing to accuse the same of impropriety regarding the use of his official vehicle;

c. An August 29, 2019 comment accusing the Plaintiff of inappropriately leaking police information;

d. An October 2, 2019 thread attacking the Plaintiffs ability to lead other officers, accusing the Plaintiff of making racist comments towards another officer, and accusing the Plaintiff of ignoring the racist comments made by subordinate officers;

e. An October 2, 2019 comment making unsubstantiated comments regarding the Plaintiff s job performance while working with the NYPD, and alleging that "[the Plaintiff] was racist so they kept him out of queens [sic] and Bronx;"

f. An October 18, 2019 comment stating, "All HPD Officers have been ordered not to read your blog by members of the Command Staff, Chief Thody included;"

g. An October 21, 2019 comment alleging that the Plaintiff has threatened to cut the Defendant's throat, and characterizing the Plaintiff as "a complete disgrace to the badge;"

h. An October 21, 2019 comment where an anonymous user of the Blog posted using the name "Lt. Vincent Benvenuto" in which the anonymous user impersonated the Plaintiff and stated that his promotion to Lieutenant was not based on merit.

So, the usual internet stuff. Some of this could possibly be actionable, but it seems unlikely much of what's listed here will withstand judicial scrutiny if it ever gets that far.

What's even weirder is Lt. Benvenuto spends most of the run time of the Bill of Discovery alleging that the comments violate the Hartford PD's code of conduct. I'm not even sure why he would bring that up. If these commenters are other cops and they are violating PD rules, then it's up to the department to punish them, not a local court. I'm pretty sure no PD official advised the lieutenant to file a civil suit because he thought some cops might be violating the house rules.

Even if one was inclined to think this potential suit has merit, the Bill of Discovery targets someone for comments other people made. State and federal protections are going to make it very difficult (and rightfully so) for Benvenuto to move forward with his discovery request.

First, state protections for journalists likely cover Kevin Brookman and his long-running blog. He cannot be forced to divulge personal information on commenters or sources unless Lt. Benvenuto can prove the information cannot be obtained from any other source and that there's an overriding public interest in the disclosure. Simply wanting it so he can get to suing commenters isn't enough to meet that bar. The state law doesn't say it specifically covers bloggers, but Goodman's blog has been active since 2008, covering matters of interest to the public like local politics and -- obviously -- local law enforcement.

Section 230 also protects Brookman against litigation. While it's true Benvenuto isn't suing Brookman over the comments he feels are defamatory, he's forcing him to respond in court to a baseless demand for user info. If Benvenuto wants to sue a bunch of Does, he can do that and make his discovery attempt at the appropriate time. Dragging a blog into this prior to commencing a lawsuit gets everything backwards by demanding the host of third-party content hand over identifying info before it's even been determined his case has enough validity to move past an initial reading by a judge.

Lt. Benvenuto pre-lawsuit tactics aren't going to endear him to the general public, much less the commenters at the "We the People" blog. You can't sue your way into respectability, especially when you take a route that drives right through the First Amendment as if it isn't even there.

Filed Under: 1st amendment, connecticut, free speech, hartford, hartford police, kevin brookman, police, vincent benvenuto

Minnesota Appeals Court Nukes State's Broadly-Written Revenge Porn Law

from the make-better-laws,-lawmakers dept

Revenge porn laws generally aren't built to last. When crafting these laws, legislators tend to lose sight of the Constitution. Everyone agrees revenge porn is bad, but simply being in agreement isn't enough when rights are on the line.

Minnesota passed a revenge porn law in 2016. The law barely made it three years before being found unconstitutional by a state court. As usual, the legislature's inability (or refusal) to narrowly craft a speech restriction has come back to haunt it. KARE 11 reports the state Court of Appeals has undone the Constitutional damage caused by the state's poorly-written law.

Minnesota's law against revenge porn is unconstitutional and infringes on First Amendment rights, the state Court of Appeals ruled Monday as it reversed the conviction of a man who circulated explicit photos of a former girlfriend.

The court ruled that the state law was such a broad violation of First Amendment free-speech rights that it couldn't be fixed by a ruling limiting its scope.

The case deals with Michael Casillas, who used the victim's passwords to access her accounts to obtain her sexual photos and videos. Casillas threatened to release them. And then he did, sharing one video with an unknown number of people by posting it online.

Casillas was charged and sentenced to 23 months in prison. He appealed, challenging the law that put him there. He has succeeded for now. (The state is already planning to appeal this to the state's Supreme Court.) The appeals court doesn't like Casillas, but it also doesn't like the law. And when it comes to the Constitution, personal distaste for a person's actions is no excuse for violating free speech rights.

The decision [PDF] says the law is too broad to remain on the books.

In sum, Minn. Stat. § 617.261 covers a wide range of expressive conduct. It covers the dissemination of a sexual image with knowledge that the person depicted in the image did not consent to the dissemination and that the image was obtained or created under circumstances in which the person depicted had a reasonable expectation of privacy. But it also covers the dissemination of a sexual image even if the disseminator did not know that the subject of the image did not consent to the dissemination, did not know that the image was obtained or created under circumstances indicating that the person depicted had a reasonable expectation of privacy, and did not cause or intend to cause a specified harm. Given the statute’s application to the latter set of circumstances, its sweep is broad.

The state hoped to salvage its conviction by claiming that the image distributed non-consensually was obscene -- something laws can target without troubling the First Amendment as much. The court disagrees.

The state appears to argue that any image of another person who is depicted in a sexual act or whose intimate parts are exposed portrays sexual conduct in a patently offensive way if the image is disseminated without the subject’s consent. Although we agree that such nonconsensual dissemination is offensive, that is not the test for determining whether a work is obscene.

The state also tried to claim the law actually regulated privacy, rather than speech. Wrong, says the court, even if -- for the sake of argument -- we pretend that you're right.

The state also contends that Minn. Stat. § 617.261 does not implicate the First Amendment because it is a privacy regulation. But privacy is not one of the recognized “delineated categories” of speech excepted from First Amendment protection.

The court agrees the state has a legitimate interest in deterring the distribution of revenge porn. But a broadly-worded law that criminalizes certain conduct without requiring the government to prove intent is highly-problematic. It's not enough to say someone should know this speech would "harass" or "frighten" other people. The state has to prove the person engaging in this speech knew this would happen and did it anyway. The state's revenge porn law does not do that. The court notes similar laws covering "disturbing" speech have been struck down in the past by the state's top court, both because the intent clause wasn't limited enough and requirements the state show the victim had suffered actual harm nonexistent.

There's no inherent expectation of privacy in sexually-explicit images, says the court. Just because they're explicit doesn't make them private. The court points out demonstrators and activists have often pushed for the distribution of their own sexually-explicit images to make sociopolitical points. The wide open give-and-take of internet communications makes it impossible to draw a bright line on expectations of privacy -- something the law takes for granted by saying that if it's explicit, it's private.

An observer of an image on a publicly available medium that depicts a person in a sexual act, or whose intimate parts are exposed, would be wise to refrain from further disseminating that image or risk criminal prosecution under Minn. Stat. § 617.261 based on a prosecutor’s subjective belief that the image’s content should have caused the observer to know that the person depicted did not consent to the dissemination and that the image was obtained or created under circumstances indicating that the person depicted had a reasonable expectation of privacy. And that risk exists even though such images are often present on publicly available mediums with the consent of the people depicted

The government's evidentiary duties are pretty much removed by this law, making it far too easy to punish protected expression while still following the letter of the law.

Given the ease with which impermissible disseminations under the statute may be further disseminated without the intent to harm necessary to proscribe expressive conduct without violating the First Amendment, we conclude that Minn. Stat. § 617.261 has the potential to reach a substantial amount of protected expressive conduct.

The law can't be salvaged. It has to be stricken from the books and new legislation crafted to replace it -- legislation that actually respects the First Amendment. This doesn't excuse Casillas' behavior. But the court isn't willing to sacrifice the Constitution to punish someone for being an asshole.

Our holding in no way changes our view that Casillas’s conduct in violation of Minn. Stat. § 617.261—of which he was convicted—is abhorrent. Nor should it be read as failing to appreciate the significant harm that the nonconsensual dissemination of private sexual images causes. The state legitimately seeks to punish that conduct. But the state cannot do so under a statute that is written too broadly and therefore violates the First Amendment.

You hate to see jerks win. But that doesn't mean anyone should be willing to punish a whole bunch of people just to ensure jerks can't escape justice. Separating people from their rights isn't justice. The state can still seek to punish people who traffic in revenge porn. But it will have to be whole lot more careful how it does it.

Filed Under: 1st amendment, free speech, minnesota, revenge port

Federal Court Blocks Unconstitutional Arkansas Law That Prevents Plant-Based Food Companies From Using Meat Words

from the judiciary-once-again-asked-to-fix-stupid dept

Another case of nonexistent "customer confusion" is being litigated. Tofurky, the maker of several vegetable-based products, sued the state of Arkansas over its bogus [squints at Legiscan in disbelief] "Act To Require Truth In Labeling Of Agricultural Products That Are Edible By Humans" law.

The law, written at the behest of meat and dairy lobbyists, claims customers are "confused" by non-meat products that use meat-like words in their product descriptions. A law similar to this passed in Mississippi was recently found unconstitutional by a federal court, resulting in legislators rewriting the law to make it less, um, unlawful.

The Arkansas law has an added bonus not found elsewhere: wording targeting the use of phrase "cauliflower rice." Why? Because Arkansas is home to the nation's largest rice industry.

Not that any consumers were actually confused. If they had been, they would have approached lawmakers. Instead, the entities approaching legislators were entrenched interests claiming shoppers were too stupid to figure out veggie burgers don't contain meat.

That law is now on death's door, having been savaged by a federal judge calling bullshit on the state's willingness to violate the First Amendment to make certain industries happy. (via AgWeek)

The ruling [PDF] blocks the state from enforcing the law while the rest of the particulars are sorted out, but it seems clear there's no way the state can salvage this terrible legislation. Tofurky pointed out the law contains no exceptions for makers of plant-based meat alternatives, meaning the company has almost zero chance of ever complying fully with the law, even if it retools its packaging (at an estimated cost of $1,000,000) and does everything it can to keep Arkansas consumers from viewing ads targeting shoppers in states not saddled with idiotic laws.

The state argued that Tofurky's use of words like "sausage," "kielbasa," "burger," and "ham" confuse consumers despite Tofurky also using words like "white quinoa," "all vegan," "plant-based," and a big "V" to distinguish its vegetarian and vegan products from the meats they emulate. The court says this argument is ridiculous.

The State appears to believe that the simple use of the word “burger,” “ham,” or “sausage” leaves the typical consumer confused, but such a position requires the assumption that a reasonable consumer will disregard all other words found on the label.

[...]

That assumption is unwarranted. The labels in the record evidence include ample terminology to indicate the vegan or vegetarian nature of the products. Additionally, “[t]here is no contention that any [consumer or potential consumer] was actually misled or deceived by” Tofurky’s packaging, labeling, or marketing.

It also pulls a delicious quote from a 2013 decision dealing with a different state's attempt to carve out exceptions to the First Amendment on behalf of favored industries.

“Under Plaintiffs’ logic, a reasonable consumer might also believe that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.”

The court says the law is likely to be found unconstitutional. The state had other options to use to limit consumer confusion but decided to specifically craft a law that harmed plant-based food manufacturers and their free speech rights.

Tofurky identifies several in-effect federal and state laws directed at prohibiting deceptive labeling and marketing of food products, and consumer products more generally, with which Tofurky contends its food labeling complies; these laws have not been enforced against Tofurky’s labels based on the record evidence before the Court (Dkt. Nos. 1, ¶¶ 21-33; 15, at 11- 12). There also is no convincing argument as to why each of these laws is ineffective at policing the alleged deceptive or confusing practices the State purports to target. Further, as opposed to the prohibition in Act 501, the State could require more prominent disclosures of the vegan nature of plant-based products, create a symbol to go on the labeling and packaging of plant-based products indicating their vegan composition, or require a disclaimer that the products do not contain meat if further laws are deemed necessary to advance its stated purpose.

Because it went this route, the new law may as well have never been written, massaged, and put into effect. The state is blocked from enforcing it until Tofurky finishes succeeding on its First Amendment claims. Yeah, I'm writing it that way because that's the only way this is going to turn out. The state doesn't have a compelling argument up its sleeve that's going to reverse what's seen in this injunction order.

If legislators are going to close their minds and open their ears when lobbying dollars come calling, they're going to end up creating stupid crap that puts Constitutional rights on the back burner to allow a few powerful incumbents to make a few extra dollars. Fortunately, the courts (for the most part) don't care who's donating to whose re-election campaign.

Filed Under: 1st amendment, arkansas, labels, meat, plan-based foods