Sean Hannity Hires Charles Harder To Threaten The NY Times And Its Reporters, Because Of Course He Does

from the ah,-that-old-first-amendment,-what-is-it-good-for dept

Last month, Kara Swisher wrote an opinion piece for the NY Times ripping Sean Hannity and Fox News to shreds for convincing her mother that COVID-19 wasn't going to be too bad back in February and leading into March. It's notable how she started her piece:

You can relax, Sean Hannity, I’m not going to sue you.

Some people are suggesting that there might be grounds for legal action against the cable network that you pretty much rule — Fox News — because you and your colleagues dished out dangerous misinformation about the virus in the early days of the crisis in the United States. Some might allege that they have lost loved ones because of what was broadcast by your news organization.

But lawsuits are a bad idea. Here’s why: I believe in Fox News’s First Amendment right as a press organization, even if some of its on-air talent did not mind being egregiously bad at their jobs when it came to giving out accurate health data.

Apparently, Hannity does not have the same respect for the 1st Amendment, because after throwing a complete shit-fit over Swisher's piece, he's now hired lawyer Charles Harder (who, full disclaimer, represented the guy who sued us a few years back, and is now also representing the Trump campaign in an ongoing series of SLAPP suits designed to chill the press) to send a truly ridiculous SLAPP threat letter to the NY Times over Swisher's piece and a couple of other NY Times pieces that have criticized Hannity or noted accurately the times he played down the threat of the virus.

I should note, in passing, that Harder might want to take into consideration what happened to the last lawyer who simultaneously represented Donald Trump and Sean Hannity.

Anyway, the letter focuses on the claims that Hannity also talked about how serious COVID-19 might be. He did do this, but at the same time, frequently was seen doing his usual boosterism of the President's "everything's fine here" messaging, by blaming the "mainstream media" and "the left" for "politicizing" COVID-19 by criticizing the President.

The point that the NY Times was making in its pieces was that in his repeated efforts to play up the President's (misleading) messages of everything being fine, many people (including Swisher's mother) didn't believe the disease was as serious as it really was. That can absolutely be true even if at other times Hannity did say the disease could be serious. You can argue that both sides are cherry-picking here, but that's hardly defamatory. Notably, the best that Harder and Hannity can do here is say that the NY Times implied false things, not that they actually said false things -- which again shows how weak any defamation claim would be:

As detailed herein, the Stories, at the very least, impart the false and defamatory inference that (1) Mr. Hannity’s on-air statements (on March 9, 2020) caused Mr. Joyce to believe it was a safe to take a cruise on March 1, 2020, that apparently led to his death; and (2) Mr. Hannity (allegedly) disseminated “misinformation” about the pandemic. Both of these implied statements are completely false. Moreover, the language in the April 18, 2020 Story reflects that you intended these false inferences, by how you deliberately manipulated the wording to create the false narrative. The Stories also encourage readers to draw the false conclusion that Mr. Hannity has no concern for the lives of his viewers.

I mean, if we're going to be suing based on what other people believe you implied, then, uh, Hannity might be opening himself up to lawsuits as well. Except that in most cases, your interpretation of what someone "implied" is the opposite of defamatory, because it's based on interpretation, not actual statements of fact.

The letter also goes on a long rant claiming that the NY Times ignored the fact that Democratic politicians played down the threat as well, and that the "mainstream media" also played it down as well. This has become a key talking point from Fox News and Trump folks, but as Cathy Young pointed out in an excellent Bulwark piece, many of those complaints are taken way out of context (and Young is not someone who is often found defending mainstream media organizations).

Either way, the letter makes it clear that, unlike Kara Swisher's respect for the US Constitution and the 1st Amendment, Sean Hannity, with Harder's help, is ready to sue the NY Times.

Please confirm in writing within twenty-four (24) hours of transmission of this letter that you will retract, correct and apologize for each of the foregoing statements. Failure to do so will leave Mr. Hannity with no alternative but to consider instituting immediate legal proceedings against you. Should that occur, Mr. Hannity would pursue all available causes of action and seek all available legal remedies to the maximum extent permitted by law, including without limitation, actual damages, special damages, punitive damages, and temporary and permanent injunctive relief.

The NY Times, of course, is not usually one to back down from defamation threats, and wasted little time in responding:

“We’ve reported fairly and accurately on Mr. Hannity and there is no basis for a retraction or an apology.”

Once again, right about now, it sure would be nice if New York had a real anti-SLAPP law instead of the heavily limited anti-SLAPP law it currently has. Oh, and also we still need a federal anti-SLAPP law to stop these abusive, censorial threats and lawsuits. But, considering how vocal Sean Hannity is about how much he "loves" free speech, suing the NY Times because it "implied" he played down the threat of COVID-19 suggests otherwise.

Filed Under: 1st amendment, anti-slapp, charles harder, defamation, free speech, kara swisher, sean hannity, slapp
Companies: fox news, ny times

Disgraced Former NASCAR Boss, Brian France, Uses SLAPP Suit To Silence Parody Twitter Account

from the well,-that'll-solve-your-problems dept

Brian Z. France ran NASCAR for many years, though as a pretty obvious nepotism hire. His grandfather and father ran NASCAR before him. In 2018, France was arrest for driving while intoxicated and criminal possession of a controlled substance, causing him to take an "indefinite leave of absence," that became more permanent once he pleaded guilty to the DWI, and has an agreement that if he completes 100 hours of community service and doesn't get into any more legal trouble, the misdemeanor charges will be reduced to a "non-criminal infraction" later this year. France's time at the head of NASCAR came with some controversy regarding his leadership style -- so it was not that surprising that someone set up a parody Twitter account for him @DrunkBrianF.

France apparently didn't take kindly to being parodied, and hired some muckety muck lawyers -- Daniel Cohen, Kiran Mehta, and William Farley, from Troutman Sanders -- to file a blatantly obvious SLAPP suit in Connecticut Superior Court at the end of February, against John L. Steele, who apparently ran the account, going back to February of 2014. The lawsuit is, to put it mildly, ridiculous. It acts as if the concept of parody does not exist. Indeed, it insists that the intent of the @DrunkFBrianF account was to trick people into thinking it was really Brian France tweeting:

Since establishing the account in February 2014, the pattern of Steele’s conduct through @drunkbrianf makes clear the purpose and intent of maintaining the Twitter account: to harass, demean, abuse, belittle, and disparage Plaintiff while impersonating Plaintiff in a manner that is intended – and in fact does – mislead, confuse, and deceive others to believe that Plaintiff is responsible for the content and activity of @drunkbrianf.

Who the hell is going to look at an account that is literally called "Drunken Brian France" and assume that it's actually Brian France, and not a parody? The argument the lawsuit makes is that because the obviously parody account refers to Brian France in the first person it means he's trying to confuse people into believing it's really Brian France behind the posts, even though the multiple examples in the lawsuit are so blatantly parody, in that each one of them is designed to mock Brian France. Just a few examples directly from the filing:

The lawsuit acts all pearl-clutchy about the use of the 1st person. But that's how parody works, guys. You do an exaggerated and obviously buffoonish version. No one is thinking that the real Brian France would post this stuff. But, nope, France's lawyers insist:

These tweets and photographs, among others, reflect Steele’s ongoing efforts to deceive others to believe Plaintiff is responsible for the Twitter account and the account’s content.

Have these three lawyers literally never encountered parody in their entire lives? The complaint tries to argue that people are actually fooled by this, but they really only point to one single person, who seems generally confused, saying that if this is the real Brian France, they should stop tweeting like this. The second "example" Tweet is a DM exchange of someone just asking if he's really an alcoholic, and doesn't indicate one way or another if the person actually thinks it's Brian France. The third example is literally someone who is just against alcoholism in general, and asks the parody account to "drop the Drunken before your given name" because "alcoholism is a disease." That exchange doesn't even seem to know who Brian France is in the first place.

Either way, if parody fools some very, very foolish and gullible people -- such as the apparently ridiculously naive lawyers at Troutman Sanders -- it's still protected speech. But a lawsuit is a lawsuit, and this one claimed that the parody Twitter account engaged in "invasion of privacy" and "intentional infliction of emotional distress."

Even tough Connecticut has a decent anti-SLAPP law, a lawsuit is still an expensive and time consuming endeavor -- especially in the midst of a pandemic. The most recent filing in the case noted that the parties were "engaged in settlement discussions, and soon after the parody account tweeted and pinned a "statement" that certainly appears to be associated with the settlement:

Brian France was not and never has been associated, affiliated or in any way involved with this Twitter account or any of the content generated and/or posted by it. I will be permanently deactivating and deleting this account. I understand this account harmed Brian France and his family in ways never intended, and for that I am sorry.

And, to be clear: that's a bullshit resolution, but it shows how rich, powerful people abuse the courts with SLAPP suits to silence people, and they get help from law firms like Troutman Sanders in doing so.

Of course, if Brian France and his lawyers think they have a "victory" on their hands, they may find it to be a short-lived one.

Filed Under: 1st amendment, brian france, connecticut, drunk brian france, free speech, parody, slapp
Companies: nascar

Court Tells Pro-Trump 12-Year-Old That Calling Him A Defender Of Racism And Sexual Assault Is Protected Speech

from the that's-how-speech-works,-snowflake dept

For a group prone to calling others "snowflakes," they sure seem to get their feelings hurt pretty quickly. Fans of President Trump have filed a lot of defamation lawsuits, litigiously angry they've been called things because of things they've done. This includes notable fans of Trump, such as... President Trump himself, as well as his campaign.

One of the youngest Trump fans sued Newsweek over a piece covering the 12-year-old boy (who is referred to only as "C.M." in the lawsuit) and his MAGA-related antics. The Newsweek article discussed the minor's pro-Trump videos, made more popular by local coverage in C.M.'s hometown. Here's how C.M. turned from precocious pre-teen to a limited purpose public figure. From the Third Circuit Appeals Court decision [PDF]:

During the 2016 presidential campaign, C.M. got a lot of attention. Before he had even turned twelve, he had publicly endorsed now-President Donald Trump and released videos seen by thousands. In one popular clip, C.M. called Hillary Clinton “deplorable.” That video went viral, attracting more than 325,000 views on Facebook alone. From Russian television stations to Philadelphia magazine, many wanted to hear from “Philly’s Biggest Trump Supporter.”

C.M. obliged. In an interview with Philadelphia magazine, he said: “Madonna needs to leave the country. That would help make America great again. She’s trash. She said she wanted to blow up the White House.” After being asked why his Facebook posts use “the same kind of vitriol” that C.M. had said “is tearing this country apart,” he explained: “Look, it’s just a joke. They’re calling Donald Trump a psychopath. They say he’s mentally unfit. They’re demonizing the Republican Party. They’re saying most Republicans are racist. The people I talk about in these posts really have it coming to them.”

Newsweek's article discussed C.M. and another 12-year-old Trump fan, M.M. It mentioned M.M.'s interview with alleged jailbait enthusiast Judge Roy Moore. It discussed C.M.'s appearance on Infowars, where he referred to Megyn Kelly's "hotness" and said things about "globalists."

What C.M. sued over was this summary of C.M. and M.M.'s media appearances.

“These kids are being weaponized,” says Todd Gitlin, professor of journalism and sociology at Columbia University. He says the [M.M.] and [C.M.] interviews “camouflage” positions of the hard right “as feel-good sweetness and light, when, in fact, they are defending raw racism and sexual abuse.”

The Newsweek article -- with C.M. and M.M.'s names and faces redacted -- is attached to the ruling. There's nothing in it approaching actionable, but here we are, one level up in the federal court system, listening to an Appeals Court (re)state the obvious. This isn't defamation. This is protected speech.

At the heart of this appeal is the first pair of quotations from Professor Gitlin, at the end of the article’s second paragraph: “These kids are being weaponized” and “they are defending raw racism and sexual abuse.” Those characterizations follow the article’s factual description of M.M.’s interviews with Roy Moore and Jennifer Lawrence, vice president of the America First Project, and C.M.’s interview with Infowars’s Alex Jones. Only after describing those interviews does the article offer Gitlin’s opinion that “[t]hese kids are being weaponized” and that the “hard right” is using their interviews to “camouflage ... defending raw racism and sexual abuse.”

But those characterizations make no factual claims about C.M. The article does not say that C.M. is a racist or sexual abuser. Nor does it accuse C.M. of having made any specific statements defending “raw racism and sexual abuse.” Instead, it quotes Gitlin’s opinion about how the “hard right” is using C.M.’s and M.M.’s opinions. His opinions may seem harsh, but that does not strip them of their absolute privilege.

The court points out any other reading of defamation law would be ridiculous. Speech has consequences -- even protected speech. If the minors didn't want someone to suggest they "defend raw racism and sexual abuse," perhaps they shouldn't have been out in public defending people accused of raw racism and sexual abuse.

While saying that someone committed a crime may be defamatory, publicly defending those accused of racism or sexual abuse is not unlawful. We see no evidence that Pennsylvania would let defenders of those accused of bigotry or crime bring defamation actions whenever a publication mentions their defense.

C.M.'s status as a minor has no effect on this lawsuit. C.M. made himself at least a limited-purpose public figure by agreeing to do an interview with a local magazine. It was this interview -- along with C.M.'s interview with Alex Jones -- that turned him into a public figure. The bar is higher for public figures, who have to prove actual malice: that Newsweek knew it was publishing false information with a reckless disregard for the truth. Since this case deals with protected opinions, there's nothing in there for C.M., no matter how much his complaint flails around searching for something actionable.

C.M. cites three pieces of circumstantial evidence. First, he argues that Newsweek “grossly departed from professional journalistic standards” by not asking C.M. or his parents to comment for the article. Second, he charges that Newsweek must have done so to improve its “declining and anemic sales and online hits.” Third, he stresses that Newsweek put a large photo of C.M. at the top of the article. Even taken together, these facts fall well short of actual malice.

Not asking someone for comment is not defamation. It never has been. The lower court said that even an "extreme departure" from journalistic standards would not rise to the level of defamation and the Appeals Court agrees. That Newsweek sought to profit from the publication of the article doesn't change the math. Newsweek would like everything it publishes to help it turn a profit, not just articles about pre-teen Trump fans. And the accusation about the photo makes the least sense. Here's the court's response to that claim:

The photo shows an energetic C.M. holding up a 2016 Trump campaign sign. That is all.

The court sums it all up by reminding the minor he entered the political arena. Newsweek didn't drag him into it. If he enjoys the freedom to say things about Trump's political opponents, Newsweek enjoys the freedom to report on his pro-Trump efforts as well as draw inferences from his actions.

In the rough-and-tumble of politics, C.M. must endure offensive opinions and heated rhetoric. The First Amendment protects even the most derogatory opinions, because suppressing them would chill robust political discourse. As long as an opinion relies on disclosed facts, it is privileged. That is what happened here. And C.M. did not plead that Newsweek knew the facts were false or recklessly disregarded the truth. We will thus affirm.

If C.M. wants to continue making a federal case of it, he's welcome to appeal this decision one more time. But even if the Supreme Court leans more right than left these days, there's no way it's going to start calling protected opinions defamation. This was a waste of everyone's time, but mostly Newsweek's. And that may have been the point. A lot of these losing lawsuits are mostly demonstrative -- ones that allow the plaintiffs to waste their targets' time and money while making themselves out to be martyrs for the conservative cause. A federal anti-SLAPP law would go a long way towards discouraging these buffoonish lawsuits. Once it's the plaintiffs' money on the line, there's going to be a lot less litigious showboating.

Filed Under: 1st amendment, anti-slapp, c.m., defamation, donald trump, free speech, public figures, slapp

Trump Campaign Actually Sues TV Station Over Anti-Trump Ad

from the bringing-free-speech-back dept

A few weeks back, we noted that the Trump Campaign was sending threatening letters about a TV ad by the PAC Priorities USA that criticized Trump's handling of the pandemic. You can see it here:

As we noted, the threat letters only caused a lot more people to watch the ad, and it seemed notable that they only focused on one single line in the ad, and not the rest of it. Now the campaign has, incredibly, made good on the threats and filed suit against at least one TV station, WJFW-NBC in Wisconsin.

The lawsuit is for "common law defamation" and is -- like so many Trump or Trump Campaign lawsuits -- not about any real legal issue, but mostly about three things: (1) creating chilling effects for others, (2) performing for the Trump base, and (3) fundraising for the campaign. There is no chance this lawsuit gets anywhere. Political advertising is among the most protected under the 1st Amendment, and, in fact, Congress has rules telling broadcasters that they cannot reject political ads from campaigns even if they're false. Of course, this ad is from a PAC, not the campaign directly, so that rule does not apply directly, but the general 1st Amendment principles still very much apply.

On top of that, there is no way in hell that the clips, as cut, meet the high bar for defamation of a public figure. The argument made by the campaign is that the clip takes one thing that Trump said -- "this is their new hoax" -- and takes it out of context. The context being that Trump was referring to the Democrats' "politicization" of COVID-19, and the ad implies he's saying that the disease itself is a hoax. The problem is that the difference here is not even remotely close to what it takes to be defamatory, even if it's misleading. For one thing, Trump was playing down the threat and risk of COVID-19 in criticizing Democrats, who were warning that it was going to be a big deal. And that proved entirely accurate. The context here does little to actually make Trump look any better, and in no way rises to the level of it being defamatory.

On top of that, as I've pointed out repeatedly, the Trump campaign itself has regularly (for years!) posted much more misleadingly cut videos of his critics, including Joe Biden. So, even if the Priorities USA ad was defamatory, it would open up the Trump campaign to similar claims many times over. But it's not defamatory.

It's notable, of course, that Wisconsin, where this lawsuit was filed, has no anti-SLAPP law at all. And while the case is still likely to get thrown out at an early stage, the lack of an anti-SLAPP law means that (1) they're much less likely to get back attorney's fees, and (2) it's still going to involve much more expensive legal work than if they could use an anti-SLAPP law.

Still, even though the case will get thrown out, Trump will "succeed." Already I'm seeing clueless fans of Trump's (the same ones who insist they're all for the 1st Amendment) cheering on this example of Trump "hitting back against the fake news media" and it will almost certainly create chilling effects at other news stations that don't want to take on the time and expense necessary to defend even this kind of bogus lawsuit. And that's a huge shame, because a key aspect of the 1st Amendment is to protect political discourse -- even when that discourse is misleading.

At the very least, this case should be a strong reminder that (1) Wisconsin needs an anti-SLAPP law and (2) so does the federal government.

Filed Under: 1st amendment, anti-slapp, chilling effects, defamation, donald trump, edits, free speech, political advertising, slapp, trump campaign, wisconsin
Companies: wjfw

SLAPP Suit Filed Against Fox News Over Awful & Dangerous COVID-19 Coverage

from the on-the-one-hand... dept

Pretty much everyone knew this was coming. Fox News' coverage of the COVID-19 pandemic has been absolutely despicable -- insisting that it was little more than the flu, was overhyped by Trump's political enemies, and nothing anyone should be worried about, before turning on a dime to suddenly pretend they never said any of that earlier, and that suddenly it was always obvious it was serious:

Of course, a ton of people not only still remember the earlier messaging, but continue to insist it was correct. I've seen it pop up over and over again in various internet forums, where Fox News watchers still, to this day, insist that it's little different than the flu and that all of the efforts to stop the spread are part of a "Democratic hoax" which was messaging straight from Fox News. The news channel, of course, is shameless in its buffoonlike support for the President's messaging, which is now almost certainly contributing to people dying. It's sickening.

But, that doesn't mean that anyone should be able to sue to silence Fox News -- but it was widely expected that there would be such lawsuits.

And now we've got the first one. As first reported by the Times of San Diego, a little-known non-profit in Washington is suing Fox News (it also throws in AT&T TV, and Comcast, claiming that they offer Fox News in their programming and "are named only insofar as they may have interests that would make them necessary parties, and no relief is sought from them") and trying to get an injunction to get Fox News to stop pushing nonsense about COVID-19, claiming that its existing reporting violates the states consumer protection laws. The complaint filed in Washington state court is a joke, filed by a group that calls itself the Washington League for Increased Transparency and Ethics or "WASHLITE." Except, as the Times of San Diego reports, it had trouble finding people who had heard of the organization before.

The group got a real life lawyer, Elizabeth Hallock -- who, um, is "an attorney and risk management consultant, a certified family law mediator and owns the Sweet Relief marijuana retail store in Yakima", and also is running for governor of Washington as a Green Party candidate -- to write the complaint, and I'd suggest she keep one of her day jobs. The whole argument is that by broadcasting misleading information, Fox News "engaged in unfair and deceptive acts" under Washington's Consumer Protection Act. Except, that's not what the law means. The unfair and deceptive acts need to be actions not protected speech.

The San Diego article has quite the interview with Arthur West, who runs WASHLITE, and it feels like every word he said is designed to troll Ken "Popehat" White:

West denied that the nonprofit group (with perhaps 30 associate members) was aiming to stifle First Amendment rights.

“It’s like the theater thing,” he said. “Up to the point where you get up in the theater and yell ‘Fire!’ you can say whatever you want. But when you get to the point where you are endangering the community — that transcends the limits of the First Amendment.”

He also contends that commercial speech is involved, not private speech by members of the public.

Of course, we've covered to death why you should never ever listen to anyone who spews the nonsense "fire in a crowded theater" line, because it's not good law, and was only mentioned (as an aside) in a since-superceded case that was about putting a politician in jail for protesting a war. Oh, and also, because it's the prime excuse used by every would-be censor. And while "commercial speech" does have fewer protections than speech by the public, that doesn't mean you get to just ignore the 1st Amendment. As despicable and awful as Fox News' coverage has been, it's all been protected free speech.

West also seems to think that, because people are dealing with Stay-at-Home orders around the country, the 1st Amendment is suspended or something:

Finally, ordinary conditions don’t apply in Washington, with First Amendment rights to assemble and travel already “rightfully” restricted, he said.

“Reasonable time, place and manner restrictions on speech have almost universally been upheld in the extraordinary circumstances where such measures are necessary to forestall a clear and present danger,” he said. “This is one such occasion.”

That is not how any of this works.

Also, a real lawsuit would include actual examples of the "unfair and deceptive acts." This one does not. It just talks vaguely that the network "acted in bad faith to willfully and maliciously disseminate false information denying and minimizing the danger posed by the spread of the novel Coronavirus, or COVID-19, which is now recognized as an international pandemic." As Ken White likes to say, vague complaints are usually the sign of censorial thuggery. Yes, it's true that people are spewing garbage because of Fox News' reporting, but that doesn't mean the network violated the law.

By creating a false belief in a statistically significant percent of the population that the coronavirus is a “Hoax,” the Defendants have created an epidemiological hazard. A subset of the population has and will continue to ignore or resist reasonable and necessary efforts to control and mitigate the virus and prevent mass death.

That's not how the law works, and if it was, it would be a disaster for the media -- even the media that is usually a lot more reasonable than Fox News propaganda. Sometimes reporters get things wrong. Sometimes they make mistakes. Making them liable in this manner would be a huge attack on a free press.

Also, as is evident from the interview in the San Diego coverage, the WASHLITE folks are entirely focused on trying to get internal Fox News documents in discovery -- which they probably are never going to get access to as this case should be tossed out before that's ever allowed.

Unfortunately, while Washington State used to have an anti-SLAPP law, due to some bad drafting the law was mostly tossed out as unconstitutional five years ago. Ridiculously, this seems to excite West, as when asked about this being a SLAPP suit, he told the Times of San Diego reporter about how Washington no longer has a real anti-SLAPP law. That's not something you should be proud of, dude.

No matter what you think of Fox news and its despicable coverage, this lawsuit is a SLAPP suit and an attack on the 1st Amendment. That it's filed by a group that purports to be about "transparency" and "ethics" and is run by a guy who claims to make his living as a public records advocate is shameful. Speak out all you want about how awful Fox News and its coverage has been. Tell everyone you can that it's spewing propaganda and misinformation. But that doesn't mean you get to sue and claim that it's an "unfair or deceptive" practice. That's just not how any of this works at all.

Meanwhile, the Daily Beast spoke to West as well, in which he notes that he's a former automobile mechanic and then proceeds to brag about how much money he makes suing the government over public records requests.

“This might seem strange to you,” he added, “but I make a very good living beating the government in court”—mostly suing local jurisdictions, politicians, and taxpayer-funded agencies using Washington’s public records and open records laws. “I’ve gotten a number of six-figure awards… I have a collection of European sports cars. I drive a Jaguar. I have three Mercedes 450 SLs and an Alfa Romeo. My house overlooks the water, and it was purchased with money from the liquor control board.”

West won a $192,000 settlement after filing an open-meetings lawsuit against the agency that governs Washington’s legalized marijuana industry.

Of course, thanks to a lack of a good anti-SLAPP law in Washington, it likely means he's protected from having to pay Fox News' (likely considerable) legal fees.

Filed Under: 1st amendment, anti-slapp, arthur west, consumer protection, covid-19, elizabeth hallock, slapp, washington
Companies: fox news, washlite

Interview With Liz Mair, Whom Rep. Devin Nunes Is Suing For $400 Million Because She Was Mildly Mean To Him

from the moooooo dept

It's been one full year since Rep. Devin Nunes kicked off his long series of frivolous SLAPP suits against various critics. While the suing of satirical Twitter accounts still get the most headlines, two of the lawsuits (including the first one) target Liz Mair, a political consultant who has worked on numerous Republican campaigns (and was a spokesperson for the RNC). It's still unclear why Nunes targeted Mair in particular, who has pointed out how this is a clear attempt at stifling free speech, but he seems particularly annoyed with her. Most elected officials learn that part of being in public office is that you get criticized, but Nunes seems to think that anyone who criticizes him deserves to get sued. Mair has now launched a new website, NunesVFreeSpeech.com, seeking donations for her own legal defense, and in defense of free speech. Mair also agreed to answer some questions I had about her experiences over the last year in dealing with this lawsuit.

When and how did you find out that Nunes was suing you for defamation? Was there any contact prior to the filing of the lawsuit?

I was sitting down to a nice chicken dinner that my mother had helpfully made so that neither my husband nor I would have to cook on a busy weekday, and my phone started ringing. I try to apply a pretty strict no phones rule during dinner, but I answered Kate Irby’s call. She was calling for comment on the first lawsuit — the $250 million one in Henrico. Unsurprisingly, I didn’t have a comment.

The only contact I can recall having had with anyone in Nunes’ orbit prior to the lawsuit being announced was on the days I delivered the shoes and T-shirt to his office. When I went to the bathroom before filming the shoes delivery, I encountered one of his female staff in the bathroom. She’d seen me getting ready outside his office, on my read she knew exactly what was going on, and on my read she seemed to think it was funny. And then obviously, I handed the shoes and the T-shirt off to people in his office, I assume staff assistants or maybe interns. They were very polite and professional.

I never got any cease and desist type letters, no asks to delete or revise tweets, no requests from his office or his campaign or any mutual contacts or acquaintances to stop anything I was doing or to indicate he had any issue with anything I did in 2018. Or frankly ever. He still hits me up for campaign contributions, too, by mail and by email. He did through a bunch of 2018, also, even after I’d been very obviously and publicly criticizing him.

What was your initial reaction to the lawsuit(s)?

First off, let’s be clear: While I’m a tall, but not a big girl, I like my food and I have a big appetite. So if you get between me and dinner, I’m going to be at least a little pissed off. That’s definitely his biggest win in terms of causing me any pain or distress in the course of this process: He got between me and food.

But beyond that, my reaction was fairly muted. If I remember correctly, there was a delay in his lawyer filing the relevant paperwork so initially, I wasn’t sure if it was real or just something he said he was going to do but wouldn’t follow through on. I recall giving my lawyer a heads up that night. I also recall thinking “wow, this guy just really elevated my public profile, that’s interesting,” that he was probably about to experience the Streisand effect, and wondering why he was so intent on drawing attention to things that he claimed to think were so massively damaging to his reputation.

Have you had any prior interactions with Rep. Nunes?

Not that I can remember, though it’s totally plausible that I would have met him at some California GOP event somewhere in the course of my career, and equally plausible that I might have “slighted" him by not recognizing him or treating him as super important or cool or like someone I wanted to grab a drink with. Someone mentioned that possibility to me not long after news of the first lawsuit broke. The truth is, I’m not very deferential to politicians, and I don’t really care about socializing with people who aren’t my husband, my kid, or my close friends or family.

Of all the people criticizing Nunes (and it's a long list), why do you think he focused so much of his attention on your tweets?

It’s hard to say. I’d love to inhabit Devin Nunes’ mind for just 30 minutes and see what goes on in there, because I’m guessing it’s fascinating, but I really can’t speculate as to his thought processes. I don’t personally think I can possibly be this interesting, but I guess I am to him.

I guess, for the record, are you either Devin Nunes' Cow or Mom (and, by that I mean, the satirical accounts on Twitter, not his actual cow or biological mother)?

I am not, and I would note that it’s possible all of this results from a massive misunderstanding. I make a lot of “your mom” jokes on Twitter, so I guess one could reasonably think I might choose to impersonate someone’s mom as a trolling exercise. And I tweet a lot about animals and like animals, including cows, so again, maybe in some universe it makes sense that I might spend time tweeting as a fake anonymous bovine. However, I’m neither the cow nor the mom, and I don’t know who either of them is.

You've stated publicly that this is an attack on your free speech. Can you describe the impact that this lawsuit has had on your public statements? Do you worry about additional lawsuits?

I’m always cautious to say Nunes is using litigation as a cudgel to try to stifle my free speech, rather than saying he is stifling my free speech. It’s my constitutionally-guaranteed right to speak about politics, politicians and other public figures.

I do crack a lot more “call your lawyer” jokes on Twitter than I used to.

I will also say that most people probably don’t have the same resources to resist a suit like this, and might self-censor and go silent like a guy who’s just had his tongue cut out — or worse yet, offer to settle to make it go away, and thereby financially reward the plaintiff. In my opinion, these lawsuits are deeply objectionable in terms of undermining a key liberty underpinning our democracy and if successful, the precedent they will set will absolutely be used against people Nunes considers friends and allies in future.

With regard to additional lawsuits, I would say “worry” is a strong word. Nothing is certain in life, but Nunes does seem rather occupied with suing other people and entities at least during this particular period.

In your own response to the first lawsuit, you argued that California is the proper venue, rather than Virginia, where you used to live. Why do you believe that to be the case?

I think the filing lays this out pretty clearly and I’d urge people to read it, but here’s the Cliffs Notes version: This is a California lawsuit about a California congressman and allegations contained in another California lawsuit about conduct that took place in California. I could go on, but of course, our filing exists online for all to read and that’s a better explanation of my position here than a quickie answer will ever provide.

Why do you think Nunes filed his lawsuit in Virginia, rather than his home state of California?

Again, as much as I’m sure Devin Nunes’ brain is a fascinating place, I’ve never visited it so I just can’t say. Other people have clearly suggested he’s engaged in litigation forum-shopping. From my standpoint, I mostly think it’s the ultimate irony that a sitting government official who has sworn an oath to support and defend the Constitution — all of it, not just the bits he likes — is suing me to try to stifle my free speech in the home state of James Madison, Father of the Constitution, who wrote the First Amendment and said the censorial power rests in the people over the government. He’s the government here — literally, a sitting congressman and ranking member of a House committee — and I’m the people.

So far, the court has rejected the venue argument. What is your reaction to that decision?

I respect the judge's decision and I’m grateful for his careful consideration of the issues, though I personally see the law differently for the reasons set forth in my filings.

California has a notably stronger anti-SLAPP law to protect speakers from these kinds of intimidation lawsuits than Virginia has. What is your opinion of anti-SLAPP laws? Do you think we need a federal anti-SLAPP law?

I think all fifty states should have strong anti-SLAPP laws on the books. They protect free speech and allow citizens to hold the government and politicians accountable. Frankly, even California’s should probably be strengthened, perhaps to allow defendants hit with SLAPP cases to claim some additional amount to compensate not just for legal costs and fees but also for wastage of their personal and professional time and any associated emotional or physical distress.

In general, I’m a 10th amendment person, so my preference would be to see all fifty states independently put strong anti-SLAPP laws on the books rather than pass a single federal law.

That said, a federal law in this case would clearly be supporting a clear, federal civil liberty guaranteed by the US Constitution, so I can see the argument for a federal law in this instance also.

The bottom line here though is that free speech is under attack from a literal, sitting government official and I think that would have Madison rolling in his grave and should have everyone in the country, regardless of their philosophy or ideology, jumping up and down and screaming “no!” in Nunes’ general direction. In my opinion, what he is doing is both an absurdity and an anti-liberty travesty that could really backfire on people like President Trump if he is ultimately successful. Think of it this way, if the President were worth $2.5 billion, it would only take ten lawsuits like the first one Nunes filed against me and Trump is bankrupted. And Trump spends a lot of time mouthing off on Twitter.

What has surprised you the most about the process of being sued? What is something that people who haven't gone through this process might not realize?

Two things. First, separate to needing strong anti-SLAPP laws everywhere, how desperately we need loser pays tort reform in this country. I was never a big tort reform person, though I am told there is a time when Nunes championed federal tort reform legislation. Anyway, I’ve come around on that. Second, how slow the process is. The American legal system is definitely not what it is depicted as being on TV and in films.

Do you find it even a tiny bit ironic that Devin Nunes sponsored a bill to stop frivolous lawsuits? And that he voted for a House amendment "to express a sense of Congress that free speech should be protected" just 12 days before suing you for your tweets?

Ah, see, there you go — you evidently are familiar with his congressional record on tort reform.

I actually wasn’t aware of his vote on that House amendment or the timing of it, but thanks for the tip.

As for irony, suffice to say I think there are a lot of things that are ironic about various political and policy positions that Nunes holds. I also think it’s ironic that he’s suing me for $400 million total and keeps sending me fundraising mail and emails. I guess he’s very eager to drain my bank account one way or another.

Filed Under: 1st amendment, anti-slapp, devin nunes, free speech, liz mair, slapp, slapp suits

Fighting For Better Anti-SLAPP Laws: I'm Joining The Board Of The Public Participation Project

from the because-free-speech-matters dept

Anyone who's read Techdirt for any length of time knows that I've spent years fighting for better anti-SLAPP laws at both the state and federal level. You may remember my public talk about the importance of anti-SLAPP's using the lawsuit against myself as an example, though my fighting for better anti-SLAPP laws dates back way before that event. Or, if you want a more humorous take on SLAPP lawsuits and the need for anti-SLAPP laws, you can check out John Oliver's clever take on the issue:

In short, SLAPP lawsuits are "Strategic Lawsuits Against Public Participation." These are lawsuits -- generally defamation lawsuits -- that target someone's speech, not because the lawsuits have any chance of succeeding, but just because the filer knows that the lawsuit itself is a huge hassle, in terms of time, money, and attention, for those on the receiving end. What a good anti-SLAPP law does is threefold:

1. It shifts the burden quickly to the plaintiff to prove they have a viable case. This is important. Legitimate cases are not stopped by anti-SLAPP laws.
2. It makes it easier for the court to then dismiss frivolous SLAPP suits quickly, hopefully reducing the hassle aspect of such lawsuits.
3. It awards attorneys' fees to the defendant, hopefully reducing the cost of facing such a lawsuits, and providing stronger incentives against potential filers of SLAPP suits.

Unfortunately, only a little more than half of all states have an anti-SLAPP law, and there is no federal anti-SLAPP law. Also, multiple circuits have decided that state anti-SLAPP laws should not be used in federal court (multiple circuits have gone the other way as well). Even among states that do have anti-SLAPP laws, they can vary widely from state to state in terms of what they cover, how they work, and how effective they are.

To sum it up: the state of anti-SLAPP laws is a mess, and it's allowing powerful people to create real chilling effects and tie up critics and commentators with bogus, expensive, lawsuits.

For years, now, the non-profit Public Participation Project has been fighting to get better state anti-SLAPP laws passed and to get a federal anti-SLAPP law in place. They also keep track of the details of what states have anti-SLAPP laws, what they cover, and how various litigation around anti-SLAPP laws has turned out.

I've admired and relied on its work for years, and that's why I was delighted this week to agree to join the board of the Public Participation Project, and help the organization fight for better anti-SLAPP laws to protect everyone's right to free speech, and against abusive, censorious, litigation that makes a mockery of the 1st Amendment and freedom of expression.

Filed Under: 1st amendment, anti-slapp, federal anti-slapp, free speech, slapp, slapp suits
Companies: public participation project