Lawyer Whose Main Claim To Fame Is Suing A News Org To Get It Shut Down, Now Complains About 'Cancel Culture'

from the oh-this-is-rich dept

As a bit of a reminder/disclaimer, Charles Harder was the main lawyer in the lawsuit against us, in which the plaintiff said directly that his intent was that we needed to be shut down. Of course, Harder's bigger claim to fame was his success in shutting down Gawker, thanks to a concerted effort by a billionaire who didn't like Gawker's reporting.

Harder has, in fact, relished his reputation for threatening and suing news organizations that publish information his clients dislike. Hell, he just published a whole book in which the title itself champions the fact that he killed off Gawker. Over the years, we've seen Harder threaten and/or sue plenty of media organizations over completely ridiculous things. He sued the New York Times over an opinion piece on behalf of Donald Trump's campaign (and lost), he helped a cryptocurrency company sue Forbes for an article about how the company was structured, he tried (and failed) to get multiple books about Donald Trump blocked from publication -- including suing over the book by niece Mary Trump and threatening a suit over Steve Bannon's book. He also threatened the New York Times over its big Harvey Weinstein expose.

In fact, nearly every aspect of Harder's claim to fame is built around his ability to threaten or sue media organizations into silence.

And the impact of his lawsuits has been very real. There have been stories about the Gawker Effect creating a real chill on investigative reporting, especially into malfeasance. And I've certainly spoken about the chilling effects of the lawsuit that was filed against me.

Given all of that, it's incredibly rich for Harder to now publish an op-ed decrying "cancel culture." And, yet, that's exactly what he's done. In a piece that originally appeared on InsideSources and is now popping up in actual newspaper op-eds, like the Jacksoville Journal-Courier, Harder argues that we need to stop trying to cancel people for speech. The whole thing would make me laugh if it didn't make me actually feel ill.

When it comes to the cancel culture debate, an important litmus test to apply when thinking about whether something—or someone—should be canceled is this: Does the punishment fit the crime? Vigorous debate, and even unpopular ideas, must be protected. Not only protected but encouraged. When people become scared to speak freely or are punished for expressing an unpopular view, American society inches closer to becoming homogenous, and where freedoms and diverse thoughts are suppressed.

Are you for real? Your career is highlighted by trying to shut entire media organizations down for articles that someone didn't like. Does the punishment fit the crime? Take a look in the mirror, Charles. Vigorous debate must be protected? Is the exception when a client pays you a lot of money to silence one side of that debate? Again, the only actual evidence we've seen of people being "too scared to speak freely" or "punished for expressing" certain views came as the result of lawsuits like yours that have chilled investigative reporting -- especially on the rich and powerful abusing their positions.

The Founding Fathers wrote the First Amendment to ensure for all Americans the right to free speech and free expression, without persecution. Everyone should feel free to exercise those rights without fear of backlash.

Really? Where do I send the bill for the hell you put me through?

But beyond hate speech and other terribly unacceptable speech, while I don’t condone disrespecting the flag or the national anthem, I strongly support people being allowed to speak their mind without fear of being canceled for it.

Then stop suing people and threatening others for their speech. Hell, your own history had me think twice before writing this very article, because I have no clue if you're going to sue me. You'd have no basis to do so, but that hasn't seemed to have stopped you in the past. That is the very chilling effect and "backlash" that you, yourself, created.

Harder's article goes on to discuss examples of what he believes is "cancel culture" -- conveniently leaving out much of the context and nuance behind them. This includes the now-infamous Harper's Letter, which we noted was not so much an essay on cancel culture, but about professional assholes seeking to hide behind a few legitimate cases of overreaction, and trying to avoid the social consequences of their speech. Incredibly, Harder's own description of the Harper's letter situation ends like this:

Naturally, the signatories caught flack for signing it.

Notice he didn't say they were "cancelled." They "caught flak." And, uh, just a few paragraphs earlier, you insisted that you supported and even encouraged 'vigorous debate.' And the Harper's Letter... created vigorous debate. Rather than embrace it, you're suggesting it's also an example of cancel culture. It seems like Harder is saying that he doesn't support cancel culture of some people, but is fine in other cases.

The end of Harder's piece is really quite something.

I believe that less cancellation, and more thoughtful consideration of context—plus appreciation for viewpoints we disagree with, particularly when communicated in a respectful, law-abiding way—would benefit all of us.

This is rich coming from you, who continue to sue media organizations and have just released a book proudly touting your own ability to shut down a media organization.

So applying the test to Colin Kaepernick: Did the punishment fit the crime? My answer: Where’s the crime?

What "crime" did I commit when you represented a client against me, Charles? What did I do that was worth eating up two and a half years of my life?

Filed Under: cancel culture, charles harder, defamation, lawsuits, slapp, slapp suits
Companies: gawker

Judge Tosses Laughably Stupid SLAPP Lawsuit The Trump Campaign Filed Against The NY Times

from the because-it-was-never-meant-to-win dept

A little over a year ago we wrote about a laughably stupid SLAPP suit that the Trump campaign, represented by Charles Harder, filed against the NY Times. As we noted at the time, the lawsuit appeared to have no intention of succeeding -- it was purely performative nonsense. The lawsuit claimed that an opinion piece by Max Frankel was defamatory because it noted that whether or not there was any explicit collusion between the Trump Campaign and Russia, it didn't matter, since both sides seemed to expect certain outcomes and allowed them to act accordingly.

We also pointed out that the lawsuit completely misrepresented the article, pretending that Frankel's thesis -- again, that there didn't need to be any explicit deal -- was Frankel saying that there was "collusion" between the two. The case made no sense no matter how you looked at it. Frankel's article was an opinion piece -- and opinions aren't defamatory. It didn't allege what the campaign's lawsuit says it alleged, and there was no way in hell it could possibly meet the actual malice standard necessary for defamation.

It took a year, but the Supreme Court of New York (which, contrary to its name, is more like a district court), has tossed out the lawsuit, though denying the NY Times' request for sanctions against Harder. As we expected, this was not a difficult decision for the court to come to. First, it was obviously opinion, and thus not defamatory:

First, while the complaint alleges that the terms used in the article, such as “deal” and “quid pro quo,” are defamatory and false, Mr. Frankel’s commentary in his article is nonactionable opinion, and the overall context in which the article was published, in the opinion section of the newspaper, signaled to the reader that “the broader social context and surrounding circumstances [indicate] that what is being read . . . is likely to be opinion, not fact.” Gross v. N.Y. Times Co., 82 N.Y.2d 146, 153 (1993) (internal quotation marks and citation omitted). This is because “[t]he dispositive inquiry, under either Federal or New York law, is ‘whether a reasonable [reader] could have concluded that [the articles were] conveying facts about the plaintiff.’” 83 N.Y.2d at 152 (alterations in original) (quoting 600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 139 (1992)); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) (finding that statements of opinion are not actionable because “there is no such thing as a false idea”).

Then there's the actual malice problem -- in that the campaign failed to make any real arguments that would show that Frankel knew his statements were false or were made with reckless disregard for the truth (meaning he had substantial doubts about their truth):

Third, even if Mr. Frankel’s commentary was actionable as factual assertions, and even if such assertions were of and concerning the Trump campaign, the complaint fails to allege facts sufficient to support the requirement that the Times published the challenged statements with actual malice, meaning “knowledge that [the statements] were false, or [made] with reckless disregard for the truth.”... In this regard, bias, or ulterior motive does not constitute actual malice... This heavy burden exists because news organizations function as a platform for facilitating constitutionally protected speech on issues of public concern and courts will not impose defamation liability against these entities absent a clear showing of actual malice.

There was one other reason for the dismissal... which I am a bit confused about. The judge claims that the Campaign (the plaintiff in this case) has no standing, since the comments in the article were not about it:

Second, the challenged statements are not “of and concerning” plaintiff, which is a necessary element for a defamation action. For example, in Lazore v. NYP Holdings, Inc., 61 A.D.3d 440 (1st Dep’t 2009), the Appellate Division, First Department dismissed a complaint alleging defamation because “the offending statements were directed against a governing body . . . , rather than against its individual members.” 61 A.D.3d at *1. Further, a corporate entity has no standing to sue over statements that concern an entity’s employees or affiliates, but not the entity itself.... Here, the focus of Mr. Frankel’s column was the former President’s associates and family members, not the Trump campaign itself.

I find that a lot less compelling, since the thrust of the article was about the Campaign, as represented by the President's associates and family members, but either way this case was getting dismissed for the other reasons.

As for sanctions, the judge rejects them... with no explanation at all. However, with New York now having a shiny new more useful anti-SLAPP law, I do wonder if the Times might now use that to seek fees...

Filed Under: 1st amendment, actual malice, anti-slapp, charles harder, defamation, donald trump, max frankel, new york, opinion, slapp, standing

Cryptocurrency Giant Binance Sues Forbes, Driving New Attention To Article About Binance's Corporate Structuring

from the crypto-streisand dept

Binance is one of, if not the, biggest cryptocurrency exchanges around. Its famously vocal CEO Changpeng Zhao (known as CZ) has positioned himself as a supporter of free speech, and even sees cryptocurrency/blockchain as a key element in that. Frankly, Binance is a fascinating company that I think is working on a some very interesting projects. And that's why it's incredibly disappointing to see the company sue Forbes over an article published last month, using lawyer Charles Harder (as you'll recall, Harder was the lawyer in the case against us and has a reputation for filing sketchy SLAPP lawsuits to try to stifle the media when it criticizes the rich and famous.)

Admittedly, CZ's support for "free speech" often seems to lack an understanding of what actual free speech means. He has (falsely) said that freedom of speech does not cover lies, which is simply incorrect in the US context. Of course, not all lies are protected. There is a very narrow slice that constitutes defamation that is not protected. But most lies and false speech is very much protected under the 1st Amendment and thus, contrary to CZ's belief, part of "free speech."

Given all that, I figured at the very least that Binance and CZ would have a stronger case against Forbes. But it's staggeringly weak. It appears to be a fairly classic SLAPP suit, designed to try to silence the media and suppress content that could be interpreted to make Binance look bad. The article, written by Forbes staffer Michael del Castillo, discusses a presentation that Forbes got a hold of, that the article claims was presented internally within Binance, detailing ways in which the company might avoid US regulators to offer highly leveraged cryptocurrency derivatives trading. The article mostly focuses on the details of the presentation, and then highlights how some moves that Binance has made appears similar to what is suggested in the presentation.

It is true that the Forbes article does not paint Binance in a positive light, and certainly raises questions about the company's actions. But to be defamatory there needs to be blatantly false statements of fact. And while the lawsuit does put out a list of 20 supposedly defamatory statements, some are clearly opinion, some are clearly taken completely out of context, and many are opinions based on disclosed facts -- all of which would make them not defamatory. For example, the very first statement that the lawsuit says is defamatory is:

Binance is pursuing an “Elaborate Scheme To Evade Bitcoin Regulators.”

But, note that "pursuing" is not put in the quote. Because the article doesn't directly say that. It notes that there was this presentation, which it shows a screenshot of and quotes extensively, and then notes the actions that Binance has taken that match what was in the document. But the factual claims of reporting on the document existing and what it says, as well as reporting on Binance's actual actions within the US don't seem to be denied.

Binance argues in the lawsuit that the guy who created the document, Harry Zhou, "is not and never was an employee of Binance." But the Forbes article notes that Binance's chief compliance officer Samuel Lim had emailed Forbes to confirm that Zhou had been a Binance employee. Based on that, Forbes certainly had reason to state that in its article. Bizarrely, the lawsuit says that that statement (the one about Lim emailing Forbes and confirming that Zhou had been an employee) is itself defamatory. That seems like a pretty straightforward claim. And, sure, if it turns out that Lim never sent any such email, then there's maybe a legit case here, but that would be... surprising. Also, the article presents further evidence that Zhou and Binance are connected in noting that the American Binance entity, Binance.US's "initial documents" (I assume they mean incorporation documents) showed that Binance.US shared an address with Zhou's previous company, Koi Trading. In fact, it was reported that Binance.US's original documents said that its address was not just at the same location as Zhou's Koi, but listed as "c/o Koi Compliance." It's possible that Zhou was never technically an "employee" of Binance, but there's enough evidence presented that shows that saying that is simply not defamatory.

Many of the other supposedly defamatory statements are either about Zhou being an employee, or simply repeating what was apparently in the document that Forbes got ahold of. Then you have some statements that are clearly opinion, such as:

“[Binance is] reminiscent of Amway-style multi-level marketing organizations.”

That line is also out of context. It elides the "somewhat" before "reminiscent" and the full statement is clearly opinion:

Binance’s novel approach, which is somewhat reminiscent of Amway-style multi-level marketing organizations, has created loyalty among its customers, and solved the nagging problems of retention experienced by many exchanges.

That's not defamatory. Or how about this:

“[T]here is speculation that the FBI and the IRS may be investigating” Binance.

That's not saying there absolutely is such an investigation -- it just notes that there is speculation of such an investigation.

Perhaps more importantly, nothing in the complaint even remotely tries to get over the actual malice standard, which is clearly required here, as the Supreme Court has held that it also applies in defamation cases brought by companies over issues of public interest. Yet, this is the only attempt to get over the actual malice standard that I can find in the complaint:

To the extent that actual malice is required to be pleaded and proven, Defendants made the false statements either knowing that the statements were false or with reckless disregard for the truth.

That's... just stating what the actual malice standard is. The complaint presents no real evidence that Forbes knew the report was false (indeed, it appears the company continues to stand by the report. The reporter highlighted the reasoning for all of the arguments, and disclosed what the reasoning was based on. This is the opposite of actual malice.

Frankly, it's surprising just how weak this all is. Especially given that filing this lawsuit is only going to drive that much more attention to the original Forbes article, and what's written in it. Filing this lawsuit seems like the ultimate Streisand Effect, only serving to bring more attention to the claims in the article, rather than refuting any of them.

Oh, and of course it's important to note that New Jersey, where the lawsuit has been filed, has no anti-SLAPP statute at all. Every state needs a strong anti-SLAPP statute, and we need a federal anti-SLAPP law to stop these censorial lawsuits designed to stifle free speech.

Filed Under: actual malice, anti-slapp, changepeng zhao, charles harder, cz, defamation, free speech, harry zhou, michael del castillo, slapp, streisand effect
Companies: binance, forbes

Trump Campaign's Ridiculous SLAPP Suit Against CNN Tossed Out Easily

from the as-expected dept

Back in March you may remember that we wrote about yet another ridiculous SLAPP suit filed by the Donald Trump campaign (using lawyer Charles Harder, who, you may also remember, was the lawyer in the lawsuit against us as well). Harder's track record in these performative cases continues to be... rather lacking. Last week, you may have missed that amidst all the other legal disputes Trump's campaign was losing, this particular case was also dismissed -- though, not quite as easily as I had expected. And it does leave it open for an amended complaint to be filed, though I still can't see how it passes muster.

If you don't recall, this particular lawsuit was about an opinion piece on CNN by Larry Noble, a former general counsel for the Federal Election Commission, who laid out a detailed analysis of the Mueller report about Russian interference in the 2016 election, and how it likely violated Federal Elections laws. The article expressed Noble's opinions, based on clearly disclosed facts. And that, by definition, should not be defamatory. District court judge Michael L. Brown -- who was appointed to the bench by Trump -- rejects the complaint, but not because it was opinion and therefore not defamatory.

The case focuses on a single statement in Noble's CNN article:

“The Trump campaign assessed the potential risks and benefits of again seeking Russia’s help in 2020 and has decided to leave that option on the table”

While many other statements in the article include language making it clear that these are Noble's opinion, that one sentence doesn't have that specific language, and that opens it up to being seen as a statement of fact, provable true or false.

A reasonable reader could readily understand the first part as alleging a weighing of the risks and benefits. It has a precise meaning. Defendants argue the second part is “couched in figurative, imprecise language, and thus is not actionable under New York [l]aw.” (Id. at 16.) The Court disagrees. While “[s]tatements ‘couched in loose, figurative or hyperbolic language in charged circumstances’ are more likely to be deemed opinions,” it is not an inflexible rule, and “the court should weigh the totality of the circumstances.”.... Thus, while “left on the table” is figurative language, it is also precise language. A reasonable reader could readily understand it to mean “available for consideration.” The Statement satisfies the first factor of the test.

However, what kills the lawsuit is the failure of Harder and the Trump Campaign to make much of an effort at all to get over the NYT v. Sullivan standard of defamation of a public figure. In order to meet that standard, they need to show that CNN/Noble knew that what was written was false, or had "reckless disregard" for the truth (which doesn't just mean they were sloppy -- it has to mean some actual action to avoid the truth). It seems that Harder barely even bothered to try to get over this "actual malice" bar, and the judge is not impressed:

Most of the allegations in the complaint regarding actual malice are conclusory. Plaintiff, for example, alleges in a purely conclusory manner that Defendants “clearly had a malicious motive” and “knowingly disregarded all . . . information when it published the Defamatory Article.”... The complaint’s allegation that Defendants were “aware at the time of publication” that the Statement was false due to “[e]xtensive public information” is also conclusory and without factual support.... Allegations such as these amount to little more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” which are insufficient to support a cause of action....

Plaintiff’s only other allegation of actual malice is that Mr. Noble had “a record of malice and bias against the President” as evidenced by a tweet and previous articles he had written.... In the tweet, Mr. Noble wrote: “Trump cheats and lies, and when caught, lies again and claims the right to make the rules. He claims defeats as victories, takes credit for anyone’s success and blames his failures on others . . . .” (Id.) The Supreme Court has emphasized “that the actual malice standard is not satisfied merely through a showing of ill will or ‘malice’ in the ordinary sense of the term.”... The tweet might show Mr. Noble’s ill will towards the President, but it fails to plead actual malice in the constitutional sense—that is, it does not show Mr. Noble made the Statement with knowledge that it was false or with reckless disregard of whether it was false.

And thus the case is dismissed, though they can try to amend the complaint to plead actual malice. That seems quite unlikely to get anywhere.

In the meantime, this should be another reminder of why we need better state anti-SLAPP laws (that can apply in federal court) and a full federal anti-SLAPP law.

Filed Under: actual malice, charles harder, defamation, donald trump, larry noble, russia, trump campaign
Companies: cnn

Judge Says The Bureau Of Prisons Violated Michael Cohen's 1st Amendment Rights In Sending Him Back To Prison

from the wasn't-expecting-that dept

I wasn't expecting this, but this morning Judge Alvin Hellerstein ordered Michael Cohen released from prison, saying that the Bureau of Prisons violated his 1st Amendment rights. If you haven't been following this story beyond the fact that Cohen was sent to prison last year for tax evasion and campaign finance violations, what you need to know is that (following his request for such), Cohen was furloughed from prison to home confinement in May, as the prison system tried to lessen the number of people in prison during the pandemic. A little over a month later, he was returned to prison. While there were reports it had to do with the fact that he was seen eating out, it turned out to be because he refused to sign an agreement saying he would not speak to the media in any form, including saying he could not publish the "tell-all" book he is supposedly writing.

In a bit of role reversal, Cohen -- who had been President Trump's legal asshole threatening people who criticized the President in the past -- received a threat letter from the President's new threatdog, Charles Harder, warning him not to publish the book.

While there was some belief that Cohen's lawsuit claiming that being sent back to prison was retaliatory against his speech wouldn't get very far, given that the Bureau of Prisons is given wide leeway in how they handle those who they have within their custody, Judge Hellerstein surprised many and recognized the obvious:

“How can I take any other inference than that it’s retaliatory?” Hellerstein asked prosecutors, who insisted in court papers and again Thursday that Probation Department officers did not know about the book when they wrote a provision of home confinement that severely restricted Cohen’s public communications.

“I’ve never seen such a clause in 21 years of being a judge and sentencing people and looking at terms of supervised release,” the judge said. “Why would the Bureau of Prisons ask for something like this ... unless there was a retaliatory purpose?”

In ruling, Hellerstein said he made the “finding that the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory.” He added: “And it’s retaliatory for his desire to exercise his First Amendment rights to publish the book.”

This is a good, 1st Amendment supportive ruling, though I do wonder if it would have come out the same way if it weren't for the high profile nature of Cohen and the president. The prison system, quite frequently, retaliates against prisoners for their speech, but it would be nice if that would start to change. Unfortunately, this will probably be a one off situation, rather than anything leading to real change.

Filed Under: 1st amendment, alvin hellerstein, bureau of prisons, charles harder, donald trump, free speech, furlough, gag order, home confinement, michael cohen, retaliation

Judge Does The Expected: Gets Rid Of Prior Restraint Order Against Mary Trump, Allows Her To Publish Her Book

from the 1st-amendment-wins-again dept

As we had fully expected a judge in NY has now tossed out the bogus restraining order against Mary Trump, the niece of President Donald Trump, regarding her book about the President and their family.

In a much more detailed order than his original Temporary Restraining Order, NY Supreme Court judge Hal Greenwald gives multiple reasons for rejecting the effort, lead by the President's lawyer Charles Harder but on behalf of the President's brother Robert Trump, to claim that the contract that was agreed to among various family members should block the publication of the book. Some had noted that the gag clause in the agreement between the various Trump family members was quite broad, and wondered how that might actually lead to problems with publication, but Judge Greenwald notes that the broadness works against the contract here:

Reviewing the Agreement and the words contained therein, considering what is known of the parties at that time and the circumstances of, what appeared to be somewhat nasty litigation, it is possible to read the Agreement and see a contract with a confidentiality clause. Yet, the clause is so overly broad, as to be ineffective.

He claims that Harder/Trump attempted to "misinterpret the Agreement" and says that they want the court to "puzzle the pieces" of the Agreement to read much more broadly than they should.

According to the above reading, the case is slam dunk. But it is not. Too many words, with too many meanings. The cost of the litigation that was settled should have been finalized with more specifics, more clarity, if the current situation was even comprehended, at the time the Agreement was signed

The Judge, following on the guidance from the Appellate court, makes it clear that Simon & Schuster is not "an agent" of Mary Trump, and therefore is not bound by the agreement. That was pretty much widely expected.

The bigger question, then, was what about Mary Trump. And here, the court says that Robert Trump has completely failed to show what irreparable harm there would be from Mary's book being published:

At this point, plaintiff asserts that the release of confidential information, no matter what it is amounts to irreparable harm. He is unaware of the information contained in the Book, in which case the court finds he does not sustain his claim; or there is already so much confidential information “out there” pertaining to the plaintiff, that it is moot for the court to even consider an injunction. In the instant matter, the movant has not shown sufficient information that he will be likely to have success on the merits of his case. Moreover, even if the court were to relax the standard applicable to likelihood of success, it still would fail. Plaintiff’s arguments in support of a finding in his favor on his Verified Complaint are unavailing. Accordingly, the Court rules that ROBERT TRUMP has not demonstrated by “clear and convincing’ evidence that he has a likelihood of success on the merits of his case.

Furthermore, the court later highlights one of the oddities of having the President's brother file the lawsuit, rather than the President himself: namely that it's likely that any "damage" should that come from the book would be targeted at the President. But the President is not the plaintiff:

In the matter before this Court, Plaintiff has failed to meet his burden of demonstrating, imminent, irreparable harm, to him (emphasis added). His allegations are unsupported and conclusory. They are without any specifics as to how he, ROBERT S. TRUMP will suffer irreparable harm. Remember the Plaintiff is ROBERT S. TRUMP and no one else. There has been nothing offered that demonstrates that the actions by MARY LTRUMP in publishing the Book will irreparably harm sole plaintiff ROBERT S. TRUMP.

I know that at least one amicus brief in this case, the one filed by Public Citizen Litigation Group had focused on this key point:

So far as we can see, every one of the disclosures about which Robert Trump’s lawyer has complained related to that lawyer’s far more famous client, Donald J. Trump, and says nothing about Robert, the only sibling who has invoked the NDA. Robert Trump lacks standing to enforce his brother’s rights; and my guess is that Donald Trump, although he made no bones about claiming publicly that his niece had no right to publish a book, made a deliberate choice not to expose himself to being deposed in this litigation by being a plaintiff.

The judge seems to have clearly recognized this point.

He also seems to have gotten the message from the appellate court about prior restraint:

Thereafter at the appellate level and in this Court in opposition, besides refuting plaintiff’s application for a preliminary injunction, MARY L. TRUMP’s papers contain a virtual history of First Amendment Rights and “prior restraint” caselaw. What follows herein is a brief synopsis of the law, in no way meant to be a complete recitation of all the caselaw and quotations provided by the attorneys for MARY L. TRUMP. It is proclaimed, the enjoining of the publication of the Book is classic “prior restraint” and cannot be tolerated. The Book is characterized as “political speech”. Procter & Gamble v Bankers Trust Co., 78 F.3d 219 (6th Cir.1996). “Freedom of speech” is invoked N.Y.Times Co. v Sullivan, 376 U.S.254 (1964). Prior restraint is deemed to be unconstitutional. Neb. Press Ass’n v Stuart, 427 U.S. 539 (1976). It is noted that the release of the so-called Pentagon Papers, did not amount to prior restraint. In New York law, under Arcara v Cloud Books, 68 N.Y.2d 553 (1986) if the government is the one seeking to enjoin speech “public injury”, must be shown. Injunctions are seen as “state power”. There is a significant presumption against the constitutional validity of prior restraints, even if it concerns leafletting Org. for a Better Austin v Keef, 402 U.S. 415 (1971). This court finds that Alexander v United States 509 U.S. 544 (1993) dealt with criminal forfeiture of obscene material. It was found that the forfeiture was a criminal penalty, the material was not “taken” on the suspicion of being obscene, before a judicial determination. It was not a “prior restraint”. The papers overlook Near v Minnesota ex rel. Olson, 284 U.S. 697 where the US Supreme Court held that a Minnesota statute that found a newspaper that had published defamatory articles against public officials was a nuisance, and by being deemed a nuisance a court could permanently enjoin that paper from being published, was unconstitutional and further that this, prior restraint would be, “…the essence of censorship”.

He also quotes the judge in the similar case (also by Charles Harder) that tried to block the publishing of John Bolton's book, saying that "the horse is not just out of the barn, it is out of the country."

And finally, the judge adds a fun quip of his own:

Lastly, in the vernacular of First year law students, “Con. Law trumps Contracts”.

Perhaps next time, the President and his family (and his censorship-happy lawyer) will think twice about trying to ban books. Given how many times this sort of thing has happened, though, I doubt much will change.

Filed Under: 1st amendment, book, charles harder, donald trump, hal greenwald, mary trump, new york, prior restraint, robert trump
Companies: simon & schuster

NY Judge Apparently Unaware Of The Supreme Court's Ban On Prior Restraint: Puts Temporary Restraining Order On Trump's Niece's Book

from the that-won't-last dept

Last week, we wrote about the president's brother, Robert Trump, suing his (and the president's) niece, Mary Trump to try to block her from publishing her new book that criticizes the president. The initial filing to block the publication failed for being in the wrong court, but the follow up attempt has succeeded, at least temporarily. NY Supreme Court (despite the name, this is the equivalent of the district court in NY) Judge Hal Greenwald doesn't seem to have even bothered to do even a cursory 1st Amendment analysis regarding prior restraint, but agreed to rush out a temporary restraining order, while ordering the the parties to brief the matter before July 10th on whether or not the ban should be made permanent.

This is not how this works. As Walter Sobchek famously explained: "the Supreme Court has roundly rejected prior restraint." Or, as 1st Amendment lawyer Ken "Popehat" White notes:

Mary Trump's lawyer, Ted Boutrous (who knows this stuff better than you do) says that they'll be appealing. According to the Courthouse News link above:

“The trial court’s temporary restraining order is only temporary, but it still is a prior restraint on core political speech that flatly violates the First Amendment,” Theodore Boutrous, an attorney for Mary Trump with the firm Gibson Dunn, said in a statement. “We will immediately appeal. This book, which addresses matters of great public concern and importance about a sitting president in election year, should not be suppressed even for one day.”

The lawyer for Robert Trump, Charles Harder (who, yes, once was the lawyer in a case against us), did his usual song-and-dance as well:

“The actions of Mary Trump and Simon & Schuster are truly reprehensible,” Harder said, referring to the book’s publisher.

Publishing a book that reveals important public information about the President of the United States is the opposite of reprehensible. What is "reprehensible" is abusing the law to file censorious SLAPP lawsuits on behalf of the rich and powerful.

He went on:

“We look forward to vigorously litigating this case and will seek the maximum remedies available by law for the enormous damages caused by Mary Trump’s breach of contract and Simon & Schuster’s intentional interference with that contract,” Harder added. “Short of corrective action to immediately cease their egregious conduct, we will pursue this case to the very end.”

Harder and Robert Trump will lose this case and the book will be published. The 1st Amendment and free speech will win, no matter how many times Harder seeks to deny such basic rights to people.

Filed Under: 1st amendment, book, charles harder, donald trump, mary trump, prior restraint, robert trump, ted boutrous, temporary restraining order
Companies: simon & schuster

Charles Harder Tries And Fails To Censor Another Book About His Most Famous Client, The President

from the sorry-charles dept

Lawyer Charles Harder (who, yes, was once the lawyer for the guy who sued us) has built up a nice reputation now of the lawyer who tries and fails to stop people from saying stuff that upsets President Trump. You may recall that Harder, representing the president, threatened former Trump adviser Steve Bannon for his supposed quotes to author Michael Wolff. More recently, Harder, representing the Trump Campaign, has sued the NY Times, the Washington Post and CNN over various articles (often opinion pieces) that portray the President negatively.

His latest move, representing Donald Trump's brother, Robert Trump, is to sue Mary Trump, Donald Trump's niece, over her new book that is quite critical of the President. The argument in the lawsuit? That Mary Trump was violating a confidentiality clause that was part of the settlement of a legal dispute over the estate of Fred Trump -- another of Donald's brothers, and Mary's father. It took all of about a day for the judge to reject the lawsuit, basically because Charles Harder messed up the filing.

At the outset, the court finds that the submissions suffer from several improprieties. First, a preliminary injunction is an order obtained by motion in a pending action or special proceeding... The caption utilized refers to a probate proceeding which terminated in 2001 by entry of a decre and is, therefore, non-existent. Consequently, a motion seeking injunctive relief may not be made in that proceeding. To the extent the accompanying petition, bearing the same caption, is supposed to provide the jurisdictional basis for said motion, it cannot do so as that petition is fatally defective.

Beyond that, they picked the wrong forum for this request:

Insofar as the petition seeks a declaratory judgment, this forum is presumptively improper as such relief should be obtained by means of an action in the Supreme Court and not a special proceeding in this court....

Of course, it appears that Harder is planning to just keep going and try again by fixing his mistakes:

“Today, the Surrogate’s Court ruled that it does not have jurisdiction over the dispute,” Harder said in a statement. “Therefore, Robert Trump will proceed with filing a new lawsuit in the New York State Supreme Court.”

Mary Trump's lawyer, Ted Boutrous, said he hoped that Harder would stop, but recognizing that's unlikely, points out that no court may violate the 1st Amendment by imposing prior restraint and blocking publication of a book that is "core political speech."

Given Harder's history, it seems unlikely that he much cares about the 1st Amendment.

Filed Under: 1st amendment, charles harder, donald trump, free speech, mary trump, prior restraint, robert trump, venue

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