James O'Keefe Sues Twitter For Defamation... For Shutting Down His Account

from the this-is-not-going-to-go-well dept

You may have heard recently that James O'Keefe, the guy behind "Project Veritas" -- a propaganda outlet whose brand of highly edited, surreptitiously recorded videos are often followed by actual media having to come in and debunk the misleading bits -- had his Twitter account shut down recently. He immediately threatened to sue Twitter, and last week he actually did so.

The crux of the lawsuit is that because a reporter claimed that Twitter told him O'Keefe's account was banned for "operating fake accounts," that's defamation. The lawsuit notes that back in February, Twitter also banned the Project Veritas account. In that case, it was because one of Project Veritas' videos allegedly revealed "private information" which violated its rules. In that case, the private information (according to the lawsuit) was that the video showed the house number of a Facebook executive who they were trying to interview. In the lawsuit, O'Keefe's lawyers try to make a big deal of the fact that real media organizations sometimes show where people live as well, leaving out the fact that this does not matter one tiny bit. Twitter sets the rules on its own platform, and when it's making decisions on the rules, they often involve context (and that context may include Project Veritas' long history).

But the key part of the lawsuit is the claim that because a Twitter spokesperson told the media that O'Keefe violated its policy against "fake accounts," and O'Keefe claims he didn't operate fake accounts, this is defamatory. The arguments in the case are going to make some of you laugh:

The false accusation that Mr. O’Keefe operated “fake accounts” is particularly damaging for Mr. O’Keefe because Mr. O’Keefe is a journalist. As such, his reputation for transparency and accurate reporting is fundamental to his profession.

That is... uh... not quite what many people would call Mr. O'Keefe's reputation.

By accusing Mr. O’Keefe of “operating fake accounts,” Twitter was directly attacking Mr. O’Keefe’s fitness for his profession by accusing him of “misleading others” and by effectively running a disinformation outlet akin to the much-discussed “Russian interference”/disinformation bots that plagued the 2016 election and which inspired some political operatives to engage in similar tactics in 2017....

Indeed, Twitter’s entire “fake accounts” policy, which it accused Mr. O’Keefe of violating by stating that he “operat[ed] fake accounts,” stems from the Russian disinformation campaign.

Thus, by claiming Mr. O’Keefe operated “fake accounts,” Twitter was saying Mr. O’Keefe could not be trusted as a journalist because he was “misleading others” via disinformation in the manner the Russian government is widely accused of doing to interfere in the U.S. political process.

That all sounds nice. But if you actually read the Twitter policy in question, it's a lot broader than O'Keefe's lawyers make it out to be. It's quite broad and has to do with a lot more than Russian disinfo accounts. Here's just part of it:

You may not use Twitter’s services in a manner intended to artificially amplify or suppress information or engage in behavior that manipulates or disrupts people’s experience on Twitter.

We want Twitter to be a place where people can make human connections, find reliable information, and express themselves freely and safely. To make that possible, we do not allow spam or other types of platform manipulation. We define platform manipulation as using Twitter to engage in bulk, aggressive, or deceptive activity that misleads others and/or disrupts their experience.

Platform manipulation can take many forms and our rules are intended to address a wide range of prohibited behavior, including:

• commercially-motivated spam, that typically aims to drive traffic or attention from a conversation on Twitter to accounts, websites, products, services, or initiatives;
• inauthentic engagements, that attempt to make accounts or content appear more popular or active than they are;
• coordinated activity, that attempts to artificially influence conversations through the use of multiple accounts, fake accounts, automation and/or scripting; and
• coordinated harmful activity that encourages or promotes behavior which violates the Twitter Rules.

In other words, it's quite broad. And lots of people have been caught up in similar account bans over the past few years, including the Krassenstein brothers who became famous for their anti-Donald Trump tweets, as well as a weird (and somewhat silly) "non-partisan" political party. So, for anyone arguing that this policy is used just against "conservatives," the evidence certainly suggests otherwise. It also does not at all suggest that anyone dinged under this policy is engaged in Russian-style disinformation campaigns.

Like so many of these lawsuits, this one appears to be more performative than serious. It's not difficult to predict how this will end up.

Filed Under: content moderation, defamation, fake accounts, first amendment, free speech, james o'keefe, policies
Companies: project veritas, twitter

MyPillow CEO Sues Dominion For Violating His Company's Right To Say The Things About Election Fraud It Definitely Isn't Saying

from the [rereads-headline]-...-look,-I-just-work-here... dept

Trump supporter and pillow manufacturer Mike Lindell was among those sued for defamation by Dominion Voting Systems over weeks of wild allegations about voter fraud that followed Donald Trump's loss at the polls in the 2020 election. Mike Lindell and his company, MyPillow, joined such luminaries as Rudy Giuliani and former Trump legal team member Sidney Powell as a recipient of a billion-dollar libel lawsuit.

Now, Mike Lindell is fighting back. He's attempting to dismiss Dominion's lawsuit, claiming his alleged libel was nothing more than heated commentary touching on important political issues. More credibly, he's asking his company to be dismissed from the lawsuit because his company did not make any of the statements Dominion is suing over.

Less credibly, he's filed a lawsuit [PDF] of his own against Dominion, claiming that naming his company as a defendant in a lawsuit somehow violates his company's rights. Considering this suit is only supposed to be about Dominion's "silencing" of MyPillow, the complaint spends a lot of its run time trotting out supporting evidence for the claims about Dominion Lindell says his company never made.

That leads to some really weird assertions by Lindell, like the claim that naming a company in a lawsuit is an attempt to silence anyone associated with MyPillow and/or allegations of election fraud.

Dominion’s true purpose is not simply to silence Mike Lindell, but to silence anyone else who might speak out on election fraud. Thus, Dominion also sued the company Mike Lindell founded, MyPillow, and hence its hundreds of employees, some of whom are co-owners. Dominion did not sue MyPillow because MyPillow made statements about Dominion. MyPillow made no such statements. Instead, by suing MyPillow, Dominion seeks to punish MyPillow’s CEO, Mike Lindell, for his statements. Dominion also seeks to send a message to others: “Shut up or else.”

But who is Dominion shutting up? Lindell claims it's trying to silence MyPillow, even though he also claims there's nothing to be silenced.

Having never commented on the election or Dominion, MyPillow has nonetheless borne the full wrath of Dominion’s illegal campaign of intimidation.

So, the speech MyPillow isn't engaging in needs to be protected… otherwise it won't feel comfortable continuing to not offer its opinion on topics of public debate.

Dominion is using the legal process as a weapon to suppress free speech. In contrast, MyPillow brings this action to open debate and expand free speech. Indeed, MyPillow would move this entire debate to the public square for a full airing of all facts and opinions on the subject. This lawsuit is brought in support of the marketplace of ideas and to remedy the grave harm that has been suffered by MyPillow as a result of Dominion’s suppression of speech and attacks on the Company.

Now, there may be some "grave harm" to be examined, but probably not under these claims. MyPillow has lost customers due to Mike Lindell's actions (and reactions to those actions, like Dominion's libel lawsuit). But none of that can plausibly be traced to Dominion adding MyPillow as a defendant in a civil lawsuit, especially since it's likely to be dropped as a defendant once the court handles Lindell's motion to dismiss.

Then there's the question of how one private company (Dominion Voting Systems) can violate the rights of another private company (MyPillow), especially when the only thing involved at this point is a single libel lawsuit. Lindell theorizes Dominion is actually a government actor and that's how rights can be violated. But even if Dominion is considered a government actor, its government work is limited to production and support of voting software and hardware. The lawsuit brought against Lindell for defamation is not part of its government role.

What follows these accusations is a bunch of narrative that supposedly supports the claims about Dominion Lindell says MyPillow never made. Then it's back to the action, where Dominion suing a handful of people for libel is every censorial cliche all at once.

Dominion’s campaign descends from a long and sad history in this country, the McCarthy era in which lives and organizations were destroyed, and families torn apart, for being labeled a Communist. Just as during that era being associated with a suspected Communist could end a professional career, so too today, those who, like MyPillow are merely associated with a critic of Dominion and the integrity of the 2020 election, face expulsion from public life in large parts of America. Dominion is using today’s cancel culture to eliminate dissent and to cover up the election issues that compromised the 2020 result.

Oh, McCarthyism? As in Sentor Joseph McCarthy, an actual government actor? Or is this some off-brand McCarthyism that can only be waged by private contractors supplying tech to government agencies? Cancel culture should help fill out your batshit lawsuit bingo cards, although it is disappointing Lindell never chooses to refer to Dominion as "woke."

And then there's more about how much MyPillow has been harmed:

Even giant, publicly traded retailers are not immune from public opinion and political pressures. Fearing retribution in the marketplace, many of MyPillow’s commercial suppliers and buyers have as a direct result of Dominion’s crusade terminated longstanding relationships with MyPillow which were projected to grow.

If Lindell was being honest, he would understand it was his public statements that caused this to happen, not Dominion's lawsuit. The list of things that have happened to MyPillow -- including the loss of social media accounts and employees being harassed -- can be directly tied to Lindell's "heated political commentary." You know, the baseless allegations of widespread voter fraud that have yet to be proven anywhere.

This sort of thing may work in a motion to dismiss:

MyPillow has never entered the public debate about the 2020 election; again, it has made no statement about Dominion whatsoever.

But it makes absolute zero sense in a standalone lawsuit filed by MyPillow, especially when its followed by this:

Defendants’ illegal campaign to punish and silence their critics violates the Free Speech Clause of the First Amendment as applied to the states and their political subdivisions and agents under the Fourteenth Amendment and 42 U.S.C. § 1983.

According to Lindell's own claims, MyPillow is not, nor has it ever been, a critic of Dominion. You can't sue over speech you haven't made. You can make a claim about prior restraint, but that's going to fail because Dominion isn't a government entity, nor has it secured a court order forbidding Lindell's company from "entering the public debate."

Just really amazing stuff in here:

Defendants’ reprisal actions were motivated, at least in part, by MyPillow’s and its CEO’s exercise of their free speech rights protected under the First Amendment and, as applied against the states and their political subdivisions and agents, the Fourteenth Amendment.

Again, the rights Lindell swears MyPillow isn't utilizing.

Galaxy brain litigation:

As the result of Defendants’ actions, and as expected and intended by them, Plaintiff suffered the loss of substantial property interests, including, but not limited to, loss of long-standing business relationships, loss of supplier contracts, and loss of access to promotional access in media.

Plaintiff was not provided due process in connection with the loss of its property interests caused by Defendants.

I guess Lindell is unaware of the lawsuit he's currently trying to dismiss. That litigation is due process exemplified. Dominion has made accusations. Lindell is being given the opportunity to dispute those allegations. This is literally the due process he's claiming has been denied him by Dominion's lawsuit. (Also, Dominion isn't a government entity so the rights violation claims are still utterly ridiculous even without this absurdity piled on top.)

To sum up: the claims will fail because they are terrible, but mostly because they are also being brought against a non-government entity under the theory that it's actually a government entity. I assume the judge handling this will read it as a motion to dismiss that was filed in the wrong court and kindly ask Lindell to stop wasting the court's time.

Filed Under: 1st amendment, defamation, free speech, mike lindell, pillows
Companies: dominion, dominion voting systems, mypillow

Steven Biss Loses Yet Again; Judges Still Resist Sanctions

from the so-many-second-chances dept

It truly is incredible how many second chances the courts are willing to give lawyers who clearly seem to be filing vexatious SLAPP suits. The lawyer in Devin Nunes' long list of SLAPP suits, Steven Biss, has a few other clients as well, though so many of them seem to be in the same Trumpist circles. The other thing they have in common is that Steven Biss seems to have no problem filing vexatious wasteful SLAPP suits to try to stifle speech. And these cases always fail. It really kinda makes you wonder (1) why anyone would hire Biss and (2) who's paying for all of these failed lawsuits? This latest one is a follow-up to a case we covered a little over a year ago, in which Biss lost a case he filed on behalf of a Russian-born academic, Svetlana Lokhova, going after a Cambridge academic named Stefan Halper and a variety of media organizations.

As we explained last year, the case really stemmed from some news stories that came out soon after Michael Flynn was fired as National Security Advisor. A bunch of stories came out claiming that there were "concerns" about potential Flynn links to Russia, including some stories that mentioned a dinner that Flynn had with some people in Cambridge, including Lokhova. Lokhova blamed Halper as the source of these stories, which she claimed were defamatory (even though many of them didn't even name her). As we noted, there is a Nunes/Lukohova connection in that Nunes referenced Lukhova as part of his bizarre conspiracy theory saying that Robert Mueller's team should face criminal charges. Nunes seemed a lot more concerned about people accusing Flynn of stuff and then investigating it, than whether or not there was any truth to the claims.

Either way, the lower court tossed out the case, noting that most of the articles/statements in question were published over a year earlier, meaning that the statute of limitations had passed. As for the statements that were made more recently, they weren't defamatory. The district court judge did call out Biss' bad behavior in the case, but still opted not to issue sanctions against him.

Biss appealed, and the latest ruling is from the 4th Circuit basically saying everything the district court said all over again -- including agreeing not to sanction Biss, even as the judges seem to recognize that he's pursuing a garbage case (and that he has a history of this).

Once again, the court notes that statements made outside of the statute of limitations cannot be the basis for a defamation claim and, once again, rejects the idea that just because people tweeted links to those articles more recently that it counts as republication. As we've covered many times, it's pretty widely settled that there's a "first publication" rule, and the statute of limitations starts ticking when a story is first published. Linking to it does not restart the clock. The court even notes that the case that Biss tried to rely on to make this argument... says the opposite.

Appellant relies heavily on Stephen G. Perlman, Rearden LLC v. Vox Media, Inc., No. 10046, 2015 WL 5724838, at *19 (Del. Ch. Sept. 30, 2015) (denying a motion to dismiss a claim that alleged a defamatory statement was republished by a hyperlink reference because republication generally presents a question of fact). Appellant’s reliance on Perlman is misplaced for two reasons. First, the Superior Court of Delaware subsequently granted summary judgment on the issue, holding that a hyperlink directing readers to a previous article on the same website does not direct the previous article to a new audience, it merely reshuffles the existing audience. See Perlman v. Vox Media, Inc., No. N195C-07-235, 2020 WL 3474143, at *8 (Del. Super. Ct. June 24, 2020). That is precisely the case here. The original New York Times article that Appellant alleges was defamatory was hyperlinked in a later New York Times article. Thus, the hyperlink served as a reference for the New York Times’ existing audience and did not direct the old article to a new audience. Second, the plaintiff in Perlman alleged that the text that contained the hyperlink was itself defamatory. Appellant makes no such allegation here. Nor could she credibly do so, given that the hyperlink is contained in the underlined portion of the following sentence: “Mr. Halper’s contacts have prompted Republicans and the president to incorrectly accuse the F.B.I. of spying on the campaign.” J.A. 311. Clearly the text in which the hyperlink was contained bears no relationship to Appellant. Thus, Appellant’s attempt to rely on a factual dispute regarding whether the hyperlink constitutes republication fails.

Other people tweeting links to the articles also does not constitute republication. And, again, the court is not at all impressed with the case Biss thinks helps his cause:

Appellant further asserts that republication occurs each time a third party tweets an article, thus re-setting the statute of limitations and exposing the original publisher to liability. Notably, Appellant cites no cases that are directly on point. Instead, Appellant relies almost exclusively on Weaver v. Beneficial Finance Co., a Virginia Supreme Court decision from 1957. See 98 S.E.2d 687 (Va. 1957). In Weaver, the court analyzed whether sending an allegedly defamatory letter to the plaintiff’s employer constituted republication because any claim based on the original publication of the letter was time barred. Id. at 689–90. The Weaver court observed, “It is well settled that the author or originator of a defamation is liable for a republication or repetition thereof by third persons, provided it is the natural and probable consequence of his act, or he has presumptively or actually authorized or directed its republication.” Id. at 690. The court qualified its observation by noting “the original author is not responsible if the republication or repetition is not the natural and probable consequence of his act, but is the independent and unauthorized act of a third party.” Id. Here, Appellant argues that each third party tweet constitutes republication pursuant to Weaver because Weaver further observed that “where the words declared on are slanderous per se their repetition by others is the natural and probable result of the original slander.”

Ignoring for a moment that Weaver was decided over 60 years ago, well before the ubiquity of the Internet, this issue can be resolved pursuant to the terms of Weaver itself because there the court recognized a distinction when applying republication rules “to newspapers and magazines” as opposed to individuals. Weaver, 98 S.E.2d at 691 (citing Hartmann v. Time, 166 F.2d 127 (3rd Cir. 1947)). The citation to Hartmann is particularly significant because in Hartmann, the Third Circuit observed that with respect to newspapers, the “single publication rule is the preferable one” because public policy and the freedom of the press command that “newspapers and magazines which are published on a nationwide basis[] should not be subjected to the harassment of repeated law suits.” 166 F.2d at 134. This observation is consistent with the Armstrong court’s pronouncement that the “rationale underlying the single publication rule” aims to “avoid the overwhelming multiplicity of lawsuits that could result from defamatory statements contained in mass publications such as newspapers and magazines.” 2003 WL 1960685, at *2. If each third party tweet containing the article were to constitute a republication, the multiplicity of lawsuits assuredly would be beyond overwhelming.

As for the statements that were published within the statute of limitations, they also have myriad problems. First, it's not clear that Biss sued the right party. One of the statements at issue was a series of tweets from Malcolm Nance, who was not sued. Instead, Biss/Lokhova sued MSNBC, where Nance is a contributor. And that runs into some problems:

However, even assuming arguendo that the tweets are defamatory, Appellant’s claim fails because she has not adequately pled facts that support holding NBCUniversal liable pursuant to the respondeat superior doctrine. “[U]nder the traditional doctrine of respondeat superior, an employer is liable for the tortious act of his employee if the employee was performing his employer’s business and acting within the scope of his employment.” Parker v. Carilion Clinic, 819 S.E.2d 809, 819 (Va. 2018) (internal quotation marks omitted)....

[....]

The sole factual allegation supporting Appellant’s conclusory statement that Nance “conducts the business of ‘NBC/MSNBC’” on his Twitter account is that “NBC/MSNBC” appears in Nance’s Twitter bio. J.A. 76. But viewed in context, this is not enough to give rise to apparent agency. “NBC/MSNBC” appears at the end of a long list of credentials that are personal to Nance. Moreover, Nance’s username, profile picture, and banner contain no mention of NBC, and the profile contains a link to a website that is operated by an organization for which Nance serves as the executive director. Finally, one of the allegedly defamatory tweets appears in a thread of tweets that begins with Nance promoting his personal book. Thus, the only reasonable conclusion is that Nance was operating his Twitter account in his personal capacity and not with the actual or apparent authority of NBCUniversal. “[C]onclusory language in the complaint” does not alter this conclusion and cannot “establish vicarious liability.” Garnett, 892 F.3d at 146. Therefore, we affirm the district court’s dismissal of Appellant’s defamation claims based on tweets authored by Nance.

There's also a Washington Post article, but there's a big problem with that one: it's not even remotely defamatory:

The amended complaint alleges two defamatory false statements in the Post Article: (1) that “[Appellee] Halper ‘attended’ . . . the February 2014 dinner”; and (2) that “[Appellee] Halper and Dearlove were disconcerted by the attention the then-DIA chief showed to a Russian-born graduate student.” J.A. 75. We can quickly dispose of any claim regarding the first statement because it is plainly “of and concerning” Appellee Halper alone and says nothing about Appellant, let alone anything defamatory. Schaecher, 772 S.E.2d at 598. Moreover, the dinner in question would have to be particularly extraordinary for merely noting one’s attendance to carry the required “defamatory sting.” Id. at 594.

Regarding the second statement, we conclude that it cannot be reasonably read to defame Appellant, either directly or through implication or innuendo. The statement expresses that Appellee Halper and Dearlove “were disconcerted by the attention” General Flynn showed to an unnamed graduate student. Even if we infer the unnamed graduated student is Appellant, it says nothing of her behavior toward General Flynn -- it only addresses his behavior toward her. This is especially relevant given the article included a disclaimer reporting, “[T]he student and a Defense Department official traveling with Flynn have denied that anything inappropriate occurred.” J.A. 75.

So, uh, there's nothing defamatory in there at all.

Because Biss is Biss, he also tried to toss in the kinds of excess claims that you see in too many bogus defamation SLAPP suits these days: tortious interference and civil conspiracy. The court dumps each easily.

Then we get to the sanctions section, and, at the beginning, it sounds like the court really is thinking about finally sanctioning Biss for his bad behavior. They're certainly aware of it.

Of note, this is not the first time attorney Biss’s litigation conduct has earned reprimand. His history of unprofessional conduct is long. See, e.g., Nunes v. Cable News Network, Inc., No. 3:19-cv-889, 2020 WL 2616704, at *2 (E.D. Va. May 22, 2020) (“It is with chagrin that the Court must begin to address this motion by observing that Plaintiff engages in ad hominin attacks against CNN and others in the Amended Compliant which the Court cannot tolerate.” (alterations and internal quotation marks omitted) (quoting Steele v. Goodman, No. 3:17-cv-601, 2019 WL 3367983, at *3 (E.D. Va. July 25, 2019))); see also Nunes v. Lizza, 486 F. Supp. 3d 1267, 1299–1300 (N.D. Iowa 2020) (requiring Biss to file “a second amended complaint . . . stripped of all such spurious allegations” and directing Biss “not to file any further public pleadings referencing such matters without first obtaining leave of the Court and showing that there is a good faith factual basis for the allegations and that they are relevant and material to some matter at issue in this litigation”). In fact, attorney Biss had his license suspended in 2009 for unprofessional conduct including breaching fiduciary duties and violating federal securities law. See Va. State Bar v. Biss, No. CL07-1846 (Va. Cir. Ct. Nov. 26, 2008). And, even during his suspension period, attorney Biss failed to be forthright about his suspension status with an opposing party when engaging in negotiations on behalf of a client, resulting in an additional 30 day suspension of his license. See In re Steven Scott Biss, No. 09-032-078962 (Va. State Bar Disciplinary Bd. Nov. 3, 2009).

Basically, the appeals court says that choosing not to discipline Biss is well within the district court's discretion:

The district court chastised attorney Biss for “directing unprofessional ad hominem attacks at [Appellee] Halper and others,” noting that such behavior “adds nothing but unnecessary heat to this litigation.” J.A. 331. But in the end, the district court elected not to sanction attorney Biss at this point and denied the motion to sanction without prejudice. We agree with the district court’s observations and endorse the court’s reprimands concerning inappropriate ad hominem attacks. We conclude, however, that the district court acted within its discretion because we are not “left with the definite and firm conviction that a mistake has been committed.” Six v. Generations Fed. Credit Union, 891 F.3d 508, 519 (4th Cir. 2018). To the contrary, the record establishes that although the district court did “not condone the [litigation] tactics” at issue, it elected to exercise caution and employ a wait-and-see approach based on post-judgment litigation.

And thus, Biss escapes further sanction yet again. Given his activities over the past few years, it does not seem like Steven Biss has any intention of changing his behavior. It seems quite likely that we will continue to see him filing frivolous and vexatious SLAPP suits that seek to silence journalism and commentary about his crew of Trump-loving clients.

All this, of course, is just yet another reminder that every state needs better anti-SLAPP laws and we need a federal anti-SLAPP law to help stop these lawsuits and put the filer of them on the hook for the legal fees of defendants.

Filed Under: anti-slapp, defamation, devin nunes, malcolm nance, slapp, stefan halper, steven biss, svetlana lokhova

Private Prison Company On The Hook For Legal Fees After Suing Investment Group For Saying It Was Doing Stuff It Was Actually Doing

from the civics-obviously-not-its-strong-suit dept

Private prison company CoreCivic has just learned a civics lesson. [I'll show myself out.] Possibly a very expensive one.

Last March, it sued [PDF] Candide Group, an investment firm that "directs capital away from an extractive global economy towards investments dedicated to social justice and sustainability." CoreCivic was one company Candide reps wanted money directed away from, citing its participation in separating parents from children at our nation's borders. (But really only the Southern border if we're honest.) Candide also claimed CoreCivic lobbies for harsher sentencing and tougher immigration laws since both of those would naturally provide more business for CoreCivic.

CoreCivic's libel lawsuit said these two "falsehoods" were spread throughout the web via sites like Forbes and multiple social media platforms. It denied both assertions and said they were stated with a reckless disregard for the truth. Candide responded with an anti-SLAPP motion [PDF], which pointed out that not only could CoreCivic not prove the statements were false but also that it had filed its lawsuit past the one-year statute of limitations.

The motion worked. After some back and forth discussion about the merits of the arguments, the court disposed of CoreCivic's lawsuit with a very short dismissal [PDF] in November. The order doesn't say much but it says enough to indicate just how weak CoreCivic's allegations were.

A multitude of issues have been tendered on defendants’ motion to dismiss and to strike the complaint for defamation. It turns out, however, that CoreCivic, Inc., did, in fact, operate detention facilities for parents separated from their children pursuant to the Border Patrol’s family separation policy. Thus, even though CoreCivic did not operate the detention facilities in which the children themselves were housed, CoreCivic did house the other half of the afflicted families or at least some of them. Therefore, the allegedly defamatory statements were true enough under the First Amendment and under California defamation law. Truth being a defense, the complaint is DISMISSED WITHOUT LEAVE TO AMEND. It is unnecessary to reach the remaining issues tendered. All other motions are DENIED AS MOOT.

Anti-SLAPP laws work. CoreCivic didn't like being publicly criticized, especially by an entity that could shift investors' money elsewhere. That these actions may have damaged CoreCivic's future profitability isn't really relevant -- at least not when its allegations of libel couldn't be sustained.

Whatever money is now leaking from CoreCivic is going to be (mildly) compounded by its inability to recognize largely truthful statements as protected speech, rather than the defamation it clearly desires them to be. The court says [PDF] Candide is entitled to collect legal fees from CoreCivic -- an important facet of any good anti-SLAPP law. Candide's legal reps are asking for about $165,000 in fees. However, the tail end of the order suggests it won't be nearly that much.

First, defense counsel’s hourly rate is inflated way beyond the amount charged to the client. The anti-SLAPP attorney’s fee provision protects defendants from shouldering the costs of meritless litigation so fees should be limited to what actually “compensate[s] a defendant for the expense of responding to a SLAPP suit,” and not result in a bonus for attorneys.

[...]

Second, defense counsel spent too long on the motion to strike, especially in light of the experience and expertise of the attorneys which should have allowed them to make quicker work of this matter. Especially where hourly fees are high, there is “an expectation that [counsel] will complete tasks efficiently and that its more senior attorneys will limit their involvement to tasks requiring their level of expertise.”

All anti-SLAPP motions are not created equal, but Judge William Alsup says this one is not that much more equal than others.

Other courts have determined a reasonable time expenditure for an anti-SLAPP motion to be between 40 and 75 hours, not 407.9 hours as here.

Whatever fees are eventually settled on, this case highlights the importance of having a strong anti-SLAPP law to work with. Without it, this case could have gone on for several more months and even a clear win for defendants would rarely result in fee shifting. CoreCivic sued because it didn't like being criticized for doing things it was actually doing. A suit like this is designed to silence critics and deter others from making similar statements. If a defendant bleeds long enough, an eventual victory is ultimately meaningless. The damage has been done and the threat remains.

Filed Under: anti-slapp, border, defamation, detention centers, prisons, private prisons, separated families, slapp, statute of limitations
Companies: candide, corecivic

Michigan AG Using Former Trump Lawyer Sidney Powell's 'No Reasonable Person Would Believe Me' Statements To Seek Sanctions Against Her

from the you-can-have-your-legal-defense-or-your-law-license,-but-not-both dept

In January -- shortly after the failed DC insurrection -- Dominion Voting Systems sued former Trump lawyer Sidney Powell for defamation over her repeated assertions the company was somehow involved in "stealing" the election for President Joe Biden.

As evidence of these extraordinary claims, Powell -- the self-proclaimed "kraken" -- offered up a bunch of hearsay and conjecture from QAnon-addled conspiracy theorists who took a break from trying to link prominent Democrats to ritualistic child abuse to link Dominion to a deceased Venezuelan dictator.

Accusations of vote rigging/stealing were made by Powell -- not just during press conferences and TV appearances -- but in court as sworn statements of fact. Powell's response to this lawsuit was to basically claim everyone who heard her allegations knew they were little more than heated hyperbole and expressions of her opinion.

Apparently, "everyone" also covered the judges handling her lawsuits in which she claimed her assertions were solid, fact-based, and worthy of exploration. Claiming "no one takes me seriously" may help Powell escape a defamation lawsuit, but it doesn't help her when it comes to her litigation where these same claims were expected to be taken seriously by federal courts.

Sidney Powell's inadvertent self-sabotage continues. Powell's best defense against Dominion's billion-dollar lawsuit is now being used by Michigan officials to argue the lawyer to be legally-sanctioned for lying to the courts. As Adam Klasfield reports for Law & Crime, Michigan Attorney General Dana Nessel is wielding Powell's own statements against her to seek sanctions.

“These attorneys seemingly made statements they knew were misleading in an effort to further their false and destructive narrative,” Nessel wrote in a statement on Wednesday. “As lawyers, fidelity to the law is paramount. These individuals worked to further conspiracy theories in an effort to erode public trust in government and dismantle our systems of democracy. Their actions are inexcusable.”

Pretty much. You can't litigate using the same allegations you later claim aren't actual statements of fact. While there are some protections against defamation lawsuits for statements made in court cases, that doesn't extend to claims made in public. And when both sets of claims are pretty much identical, it becomes a real problem when you assert "no reasonable person" would believe they were "statements of fact" when that group of reasonable people now includes federal judges.

This move for sanctions is on top of the state's attempt to get Powell disbarred for attempting to overturn the state's 2020 election results with litigation state officials claimed crossed ethical lines. Governor Gretchen Whitmer's complaint against Powell make it's clear the state's serious about preventing Powell from practicing law in the state:

By filing a frivolous lawsuit based on false statements and by brazenly attempting to disenfranchise Michigan voters during the recent presidential election, she engaged in grave attorney misconduct.

Her defense in the Dominion lawsuit looks like it's going to cost her even more than what Dominion may eventually extract from Powell via its lawsuit. The best course of action would have been to not do any of the things Powell did months ago. A steady stream of stunt litigation based on allegations apparently compiled by legal experts on 4chan is a great way to find yourself out of a job and a whole lot of money.

Filed Under: dana nessel, defamation, michigan, sanctions, sidney powell
Companies: dominion

As Steven Biss Continues Filing Bogus SLAPP Suits, He Finally Gets Sanctioned In Case Involving Devin Nunes' Aide

from the how-is-this-not-the-norm-yet? dept

Lawyer Steven Biss has built up quite a reputation for himself over the past few years, especially in filing highly questionable, obviously bogus SLAPP suits on behalf of Rep. Devin Nunes and a rotating cast of characters in and around Trumpist orbits. For example, he just recently was the lawyer for Jack Flynn, the brother of disgraced (briefly) former National Security Advisor Michael Flynn, in suing CNN for pointing out that the Flynns had repeated some standard QAnon conspiracy nonsense in a video recorded at a family barbecue, and posted online with some QAnon hashtags. Jack was in the video which was then featured in a CNN story about QAnon. The crux of the defamation claim is this:

In the piece, O’Sullivan falsely claimed that “where we go one, we go all” was an “infamous QAnon slogan promoted by Trump’s first National Security Advisor Michael Flynn”.

The lawsuit tries to argue that "where we go one, we go all" is not in fact a QAnon slogan (they claim that the phrase goes back to John F. Kennedy -- ignoring the fact that today it absolutely is associated with QAnon as are the hashtags that Flynn used in posting it). The lawsuit is laughable and is likely to be laughed out of court like every other Biss SLAPP suit.

Speaking of which, days later, in yet another Biss SLAPP suit, a court finally sanctioned Biss. This case loosely involves Nunes, even though Nunes is not technically a party to the case. Instead, it involves one of Nunes' top advisors, Dereck Harvey. You might recognize Harvey from another story, about the time when Biss sent a letter on behalf of Nunes... threatening to sue fellow Congressional Rep Ted Lieu. In that story, we noted that just as Nunes was threatening Lieu, Congress had released a bunch of documents showing how Nunes' aide Harvey had worked with the since indicted Lev Parnas to try to set up some meetings between former Ukranian officials and Nunes.

That takes us to the present case. Back in October, Harvey sued CNN and Parnas over statements that were made on CNN, based on statements from Parnas and his lawyer, Joseph Bondy, about alleged efforts by Harvey to set up meeting with those very same former Ukrainian officials and his boss, Nunes. In February, the case was dismissed against CNN -- noting that the complaint failed to describe how the statements were defamatory, and a bunch of them weren't even about Harvey himself (which they'd need to be in order to be defamatory).

The judge gave Biss and Harvey a chance to file an amended complaint, which they did, at the very last minute.

Anyway, it would appear that the judge is not impressed by Biss's lawyering here, taking just a few weeks to dismiss the case and tell Harvey and Biss they're on the hook for CNN's legal fees. As the court notes, this whole case really seems to be a sort of Nunes-lawsuit-by-proxy:

As this Court previously explained, Harvey’s suit is at heart, a continuation of litigation of Congressman Nunes with respect to media coverage of his own political efforts in support of former President Trump... In fact, this Court was hard pressed to see how several of the allegedly defamatory statements cited in Harvey’s original Complaint had much to do with the Plaintiff at all, as they focused almost entirely on the actions of Congressman Nunes....

Also, as was found in the original dismissal, most of the statements in question were not actually defamatory:

It was also unclear to this Court how the statements at issue were in fact defamatory in nature, tending to “expose a person to public scorn, hatred, contempt, or ridicule.”... Harvey was acting as a Senior Advisor to Nunes, the “leader of the Republican opposition” to the first impeachment of former President Trump, and the public record includes House Republicans’ statements that there was “nothing wrong with asking serious questions” about the Bidens and their dealings with Ukraine. To suggest it was defamatory for CNN to state or otherwise imply that Harvey was assisting Nunes in his investigation of a political rival is simply without merit.

The point of an amended complaint after the initial complaint has been dismissed without prejudice is to fix the problems with the complaint (i.e., fixing the deficiencies that resulted in the case being dismissed). But it appears that didn't happen here and the judge seems to recognize that almost no effort was made here at all, other than to drag out the case.

The Plaintiff has done nothing to address this Court’s concerns that the statements have little do with Harvey at all. The statements allege nothing more than that Harvey was a source of information about Congressman Nunes or an unnamed subordinate acting in compliance with the orders of his superior.... The Plaintiff has also failed to address the fact that none of the statements are materially false... Adding the phrase “materially false” to certain paragraphs of the Amended Complaint does not change the substance of the statements, or the facts related to this case. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice.”) The Plaintiff did omit a portion of what is now alleged as Statement 5 that this Court held was clearly unactionable due to its status as an opinion.... However, with respect to Statement 5, Harvey still fails to state a claim on the bases that the statement only references Harvey as a source of information about Congressman Nunes and is not materially false.

Harvey made some additions to his Amended Complaint that were presumably meant to address this Court’s concerns that none of the statements were actually defamatory. For example, Harvey added allegations that CNN’s publications “could cost him his security clearance and subject him to discipline.” ... He also asserts that CNN’s reporting falsely accused him of publishing “derogatory statements concerning Nunes—Plaintiff’s superior” and that the accusations “were highly prejudicial” to his employment with the congressman.... Theses additions do not aide the Plaintiff’s case.

There's also the issue of actual malice. Harvey tries to argue that he's not a public figure so the actual malice standard doesn't matter, but as the court said in its original ruling, under 4th Circuit precedent, he clearly is. So then, there's this attempt to challenge the actual malice standard that the judge is (rightly) having none of:

Harvey’s next argument regarding actual malice is even less meritorious. Harvey asks this Court to completely ignore Supreme Court precedent and reconsider what he asserts to be an outdated actual malice standard established by New York Times Co. v. Sullivan... As Plaintiff’s counsel has already once been instructed, “for obvious reasons” a district court cannot simply overturn a decision of the Supreme Court. The actual malice standard as articulated by the Court in Sullivan controls in this case, and for the same reasons detailed in this Court’s earlier opinion, Harvey has failed to state a plausible claim that CNN and its reporters made any of the statements at issue with actual malice.

You almost get the feeling these batshit crazy cases are an attempt to get a case up to Clarence Thomas, given his well publicized desire to get rid of the Sullivan standard.

Either way, the court decides that this weak showing is easily sanctionable:

In the previous Memorandum Opinion, this Court specifically stated that Plaintiff Harvey was permitted to file an Amended Complaint if he possessed facts to cure the “manifest deficiencies” addressed in that opinion by March 4, 2021.... This Court also specifically warned that such Amended Complaint would be subject to dismissal if the Plaintiff failed to cure the noted deficiencies.... Nevertheless, after the clerk’s office of this Court had closed and just hours before the deadline of midnight on March 4, 2021, the Plaintiff filed an Amended Complaint nearly identical to the original Complaint filed in this case and thoroughly discussed in this Court’s Memorandum Opinion. As the above analysis explains, the Plaintiff did not cure any of the deficiencies noted by the Court. The filing of such an Amended Complaint is the sort of bad faith courts have repeatedly found to merit sanctions under 28 U.S.C. § 1927 and the courts’ inherent power to sanction.....

... This Court finds that Plaintiff Harvey’s filing of the Amended Complaint unreasonably multiplied the proceedings in this case, and this Court is satisfied that it is appropriate to impose a sanction as to the Plaintiff and his counsel under this court’s inherent authority

The end result is that a combination of Harvey, Biss (and a third lawyer in the case who was seeking to get off the case) are on the hook for CNN's legal fees in the case. Of course, since it's never been clear who has been paying Biss for all these lawsuits in the first place, it remains unclear who will be paying the sanctions as well.

Filed Under: 1st amendment, actual malice, defamation, dereck harvey, devin nunes, free speech, jack flynn, legal fees, michael flynn, sanctions, slapp, steven biss
Companies: cnn

Sidney Powell Asks Court To Dismiss Defamation Lawsuit Because She Was Just Engaging In Heated Hyperbole... Even When She Was Filing Lawsuits

from the behold-the-kraken-and-the-unholy-mess-it-has-made-on-the-carpet! dept

In January, Dominion Voting Systems sued former Trump lawyer Sidney Powell for defamation. The voting machine maker claimed the self-titled "Kraken" was full of shit -- and knowingly so -- when she opined (and litigated!) that Dominion had ties to the corrupt Venezuelan government and that it had rigged the election against Donald Trump by changing votes or whatever (Powell's assertions and legal filings were based on the statements of armchair experts and conspiracy theorists).

Sidney Powell has responded to Dominion's lawsuit with what is, honestly, about the best defense she could possibly muster. And that defense is, "I have zero credibility when it comes to voting fraud allegations and certainly any reasonable member of the public would know that." From Powell's motion to dismiss [PDF]:

Determining whether a statement is protected involves a two-step inquiry: Is the statement one which can be proved true or false? And would reasonable people conclude that the statement is one of fact, in light of its phrasing, context and the circumstances surrounding its publication…

Analyzed under these factors, and even assuming, arguendo, that each of the statements alleged in the Complaint could be proved true or false, no reasonable person would conclude that the statements were truly statements of fact.

In other words, these allegations were just Powell's "heated" opinions and should be viewed as protected expression. These wild accusations based on hearsay and YouTube videos were nothing more than contributions to the "robust discourse" surrounding the 2020 election.

As political speech, it lies at the core of First Amendment protection; such speech must be “uninhibited, robust, and wide-open.” N.Y. Times Co., 376 U.S. at 270. Additionally, in light of all the circumstances surrounding the statements, their context, and the availability of the facts on which the statements were based, it was clear to reasonable persons that Powell’s claims were her opinions and legal theories on a matter of utmost public concern. Those members of the public who were interested in the controversy were free to, and did, review that evidence and reached their own conclusions—or awaited resolution of the matter by the courts before making up their minds. Under these circumstances, the statements are not actionable.

Maybe so, as far as public appearances go. But Powell also made the same allegations in her election-related litigation. Somehow, Powell evidently feels this calling her statements nothing more than "protected expression" should contribute to her defense against defamation claims, rather than adding to the weaponry Dominion can deploy against her.

All the allegedly defamatory statements attributed to Defendants were made as part of the normal process of litigating issues of momentous significance and immense public interest. The statements were tightly focused on the legal theories they were advancing in litigation and the evidence they had presented, or were going to present, to the courts in support of their claims that the presidential election was stolen, denying millions of Americans their constitutional rights to “one person, one vote” by deliberately mis-counting ballots, diminishing the weight of certain ballots while enhancing the weight of others and otherwise manipulating the vote tabulation process to achieve a pre-determined result.

It's a solid defense. Sort of. Claiming your wild speculation was just mildly-informed wild speculation that anyone of a reasonable mind would have viewed as nothing more than highly opinionated hot takes on election fraud is a good way to get out of defamation lawsuits. Powell isn't wrong here: discussions about issues of public interest are given more First Amendment leeway, especially when both parties involved are public figures.

But this defense ignores one critical fact -- one Dominion has accounted for. This "robust discussion" wasn't limited to press conferences and Fox News appearances. It was also the basis for lawsuits filed by Sidney Powell -- lawsuits in which she presented these same allegations as facts backed by sworn statements. Sure, it takes a court to sort the baseless allegations from the actionable ones, but filing a lawsuit in a court and signing it means the plaintiff believes all allegations to be true until otherwise proven false. And while there are some protections for allegations made in court, it's pretty tough to argue averred statements of fact are also just harmless opinion tossed into the highly charged political ether.

Powell's response claims her comments fall into the "exaggeration and hyperbole" end of the spectrum -- an area of opinion that gets a lot of First Amendment coverage because it's both heated and open to interpretation by "reasonable" people. But "exaggeration and hyperbole" isn't generally welcome in sworn pleadings. Knowingly shoveling bullshit into a courtroom and asking the court to weigh in on its relevance and honesty isn't something courts tend to tolerate. It's this exact thing that has led to Michigan state officials asking the court system to sanction Powell for her bad faith litigation.

We'll see where the court takes it from here, but it's hard to see a court responding favorably to a motion to dismiss that basically says no one should take Powell's allegations seriously… except for courts handling cases in which she's the one filing complaints.

Filed Under: defamation, opinion, sidney powell, voting fraud
Companies: dominion systems