Shut Up David Boies, You Hypocritical, Censorial Oaf

from the don't-even-start dept

NPR has an incredible story about the media and Jeffrey Epstein. You should read the whole damn thing, because no summary here will do it justice. It covers multiple attempts by various large media organizations, including Vanity Fair, the NY Times and ABC to report on Jeffrey Epstein over the years, and how Epstein, intimidated, coaxed and even potentially bought off reporters to get more favorable coverage, or to kill stories outright. It's horrific and awful and everything along those lines. Go read it.

But, I'm going to focus on the fact that NPR quotes David Boies throughout the piece, acting horrified at how the media fell down on this. He's 100% correct about that, but he's the wrong fucking messenger given his own long history doing pretty much exactly what Epstein is reported to have done regarding the media in this particular piece. Boies is defending some of Epstein's victims, and good on him to be a strong advocate for his clients and against Epstein. But this quote is not one David Boies should be making:

"We count on the press to uncover problems, not merely to report on when problems have been prosecuted and when people have been indicted, but to uncover problems before they reach that stage," says David Boies, an attorney for several of Epstein's accusers. "And here you had a terrible problem. A horrific series of abuses."

Shall we review some of the record on David Boies and his attempts to intimidate and silence the press when they tried to "uncover problems before they reach that stage"? As you may recall, one of David Boies' big clients was... Harvey Weinstein. And, as Ronan Farrow at the New Yorker reported in great detail, Boies and his firm seemed to work very, very hard to stop anyone from revealing Weinstein's problems with multiple women.

That article covers how Weinstein hired a bunch of former Mossad and Israeli intelligence officers who had set up a firm called "Black Cube" to try to "extract information" on various Weinstein accusers.

Two private investigators from Black Cube, using false identities, met with the actress Rose McGowan, who eventually publicly accused Weinstein of rape, to extract information from her. One of the investigators pretended to be a women’s-rights advocate and secretly recorded at least four meetings with McGowan. The same operative, using a different false identity and implying that she had an allegation against Weinstein, met twice with a journalist to find out which women were talking to the press. In other cases, journalists directed by Weinstein or the private investigators interviewed women and reported back the details.

The explicit goal of the investigations, laid out in one contract with Black Cube, signed in July, was to stop the publication of the abuse allegations against Weinstein that eventually emerged in the New York Times and The New Yorker. Over the course of a year, Weinstein had the agencies “target,” or collect information on, dozens of individuals, and compile psychological profiles that sometimes focussed on their personal or sexual histories. Weinstein monitored the progress of the investigations personally. He also enlisted former employees from his film enterprises to join in the effort, collecting names and placing calls that, according to some sources who received them, felt intimidating.

You might ask, what does that have to do with Boies? Well, according to the New Yorker, it was Boies who hired Black Cube and signed the contract with them to run this operation to silence Weinstein accusers and block negative stories. He even did this despite a clear conflict of interest (he was trying to suppress a NY Times story while representing the NY Times in a separate case):

In some cases, the investigative effort was run through Weinstein’s lawyers, including David Boies, a celebrated attorney who represented Al Gore in the 2000 Presidential-election dispute and argued for marriage equality before the U.S. Supreme Court. Boies personally signed the contract directing Black Cube to attempt to uncover information that would stop the publication of a Times story about Weinstein’s abuses, while his firm was also representing the Times, including in a libel case.

And that's not all. Remember the big Theranos scandal and mess, which turned out to be a pretty massive fraud? That only came to light thanks to some whistleblowers at the company who went to a reporter at the Wall Street Journal with their concerns. And can you guess what happened there, too? Yup. In a big Vanity Fair article we learned about an incredibly aggressive campaign to silence the whistleblowers. There's some irony here given that, in this new NPR piece, Boies is criticizing Vanity Fair as one of the publications that "failed" to publish information about Epstein's crimes. But the Vanity Fair piece shows that Boies was heavily involved in the campaign to discredit and silence the whistleblowers:

Shortly after reading the article, Carreyrou started investigating Theranos’s medical practices. As it turned out, there was an underside to Theranos’s story that had not been told—one that involved questionable lab procedures and results, among other things. Soon after Carreyrou began his reporting, David Boies, the superstar lawyer—and Theranos board member—who had taken on Bill Gates in the 1990s and represented Al Gore during the 2000 Florida recount case, visited the Journal newsroom for a five-hour meeting. Boies subsequently returned to the Journal to meet with the paper’s editor in chief, Gerard Baker.

It also notes very threatening letters from Boies' firms to multiple whistleblowers at the company, claiming imminent legal action merely for talking to reporters:

Meanwhile, Theranos had its lawyers send a letter to Rochelle Gibbons’s attorney, threatening legal action for talking to a reporter. “It has been the Company’s desire not to pursue legal action against Mrs. Gibbons,” a lawyer for Boies, Schiller & Flexner wrote. “Unless she immediately ceases these actions, she will leave the Company no other option but to pursue litigation to definitively put an end [to] these actions once and for all.” Others who spoke to the Journal were met with similar threats.

Rochelle Gibbons, if you haven't read the story, was the wife of a Theranos scientist who had tried to whistleblow within the company, saying the technology didn't work, and had protested internally the fact that Elizabeth Holmes had publicly announced that the tech worked and that they'd be opening "Theranos Wellness Centers" at Walgreens. As he kept talking internally, he was ordered to go meet with Holmes. Fearing he was about to be fired, he tried to take his own life, and died a week later in the hospital. This leads to the following:

When Rochelle called Holmes’s office to explain what had happened, the secretary was devastated and offered her sincere condolences. She told Rochelle Gibbons that she would let Holmes know immediately. But a few hours later, rather than a condolence message from Holmes, Rochelle instead received a phone call from someone at Theranos demanding that she immediately return any and all confidential Theranos property.

The report also notes that Elizabeth Holmes' two day "war room" strategy to figure out how to deal with this reporting exposing the corporate fraud involved multiple "lawyers from Boies, Schiller & Flexner." It does not say that Boies himself was in that room, but given that he wasn't just a lawyer for them, but a member of the board, it would not be surprising to find out that he was a key strategist in that meeting.

And that's not all. While perhaps not nearly as serious as efforts to kill stories about Harvey Weinstein's accusers or Theranos whistleblowers, Boies also personally sent a bunch of totally bogus, censorial letters to basically every publication that wrote about the contents of the hacked Sony Pictures emails. He even sent one to me. The letter, ridiculously, demands that publications not write about the contents of those emails to "help [protect] the First Amendment." Convincing news organizations not to report on news is not protecting the First Amendment, David.

So, yes, Boies is right that it's a travesty that Epstein was able to convince powerful media organizations not to run stories exposing Epstein's misdeeds, but for Boies of all people to be bitching about that is particularly rich, given his own well-documented efforts to do similar things.

Filed Under: david boies, elizabeth holmes, free press, harvey weinstein, jeffrey epstein, stifling free press
Companies: abc, ny times, sony pictures, theranos, vanity fair

David Boies Accused Of Running Horrifying Spy Operation Against Harvey Weinstein's Accusers

from the and-reporters dept

David Boies is one of the highest profile lawyers in the country. I first became aware of him when he (as outside counsel) represented the Justice Department in the overreaching antitrust case against Microsoft in the 1990s. However, I think most people became aware of him when he represented Al Gore in Bush v. Gore. Since then, nearly every time he's popped up in Techdirt, it's been doing really, really sketchy things. He was the lawyer for SCO in that company's insane "set open source on fire" lawsuit against IBM over Linux. He represented Oracle in its ridiculous lawsuit against Google over whether APIs are covered by copyright*. He represented Sony Pictures after its email was hacked and threatened lots of journalists -- including us! -- for publishing stories based on those leaked emails (we told him "go pound sand.") And, honestly, until earlier this week, I thought the most egregious efforts by Boies had been his connection to Theranos, the disgraced medical devices company, where Boies wasn't just a lawyer for the company, but on the board, and participated in terrible and far-reaching attempts to punish whistleblowers at the company.

But, it turns out that Boies' activity in trying to stifle whistlebowers and reporters regarding Theranos and Sony Pictures were just the warm up act for a truly horrifying bit of business revealed by Ronan Farrow in the New Yorker this week. It was widely reported that Boies was a key player on Harvey Weinstein's legal team, responding to the claims of sexual harassment and assault, but the Farrow article shows just how deep the campaign went, with Boies allegedly orchestrating an "army of spies" to try to trick Weinstein's accusers and reporters working on the story to reveal what they knew. The whole article is incredible, but here's just a snippet, involving one of Weinstein's most outspoken victims, Rose McGowan:

In May, 2017, McGowan received an e-mail from a literary agency introducing her to a woman who identified herself as Diana Filip, the deputy head of sustainable and responsible investments at Reuben Capital Partners, a London-based wealth-management firm. Filip told McGowan that she was launching an initiative to combat discrimination against women in the workplace, and asked McGowan, a vocal women’s-rights advocate, to speak at a gala kickoff event later that year. Filip offered McGowan a fee of sixty thousand dollars. “I understand that we have a lot in common,” Filip wrote to McGowan before their first meeting, in May, at the Peninsula Hotel in Beverly Hills. Filip had a U.K. cell-phone number, and she spoke with what McGowan took to be a German accent. Over the following months, the two women met at least three more times at hotel bars in Los Angeles and New York and other locations. “I took her to the Venice boardwalk and we had ice cream while we strolled,” McGowan told me, adding that Filip was “very kind.” The two talked at length about issues relating to women’s empowerment. Filip also repeatedly told McGowan that she wanted to make a significant investment in McGowan’s production company.

Filip was persistent. In one e-mail, she suggested meeting in Los Angeles and then, when McGowan said she would be in New York, Filip said she could meet there just as easily. She also began pressing McGowan for information. In a conversation in July, McGowan revealed to Filip that she had spoken to me as part of my reporting on Weinstein. A week later, I received an e-mail from Filip asking for a meeting and suggesting that I join her campaign to end professional discrimination against women. “I am very impressed with your work as a male advocate for gender equality, and believe that you would make an invaluable addition to our activities,” she wrote, using her wealth-management firm’s e-mail address. Unsure of who she was, I did not respond.

Filip continued to meet with McGowan. In one meeting in September, Filip was joined by another Black Cube operative, who used the name Paul and claimed to be a colleague at Reuben Capital Partners. The goal, according to two sources with knowledge of the effort, was to pass McGowan to another operative to extract more information. On October 10th, the day The New Yorker published my story about Weinstein, Filip reached out to McGowan in an e-mail. “Hi Love,” she wrote. “How are you feeling? . . . Just wanted to tell you how brave I think you are.” She signed off with an “xx.” Filip e-mailed McGowan as recently as October 23rd.

In fact, “Diana Filip” was an alias for a former officer in the Israeli Defense Forces who originally hailed from Eastern Europe and was working for Black Cube, according to three individuals with knowledge of the situation. When I sent McGowan photos of the Black Cube agent, she recognized her instantly. “Oh my God,” she wrote back. “Reuben Capital. Diana Filip. No fucking way.”

And, yes, apparently it was Boies who signed the contract that made all this possible:

Boies personally signed the contract directing Black Cube to attempt to uncover information that would stop the publication of a Times story about Weinstein’s abuses....

Oh, and the latter part of that sentence is fairly stunning as well:

... while his firm was also representing the Times, including in a libel case.

That seems like a pretty massive conflict of interest, which Boies denied:

Boies confirmed that his firm contracted with and paid two of the agencies and that investigators from one of them sent him reports, which were then passed on to Weinstein. He said that he did not select the firms or direct the investigators’ work. He also denied that the work regarding the Times story represented a conflict of interest.

You know who did think it was a pretty bad conflict of interest? The NY Times. Boy, was the NY Times pissed off:

We learned today that the law firm of Boies Schiller and Flexner secretly worked to stop our reporting on Harvey Weinstein at the same time as the firm's lawyers were representing us in other matters. We consider this intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe. It is inexcusable and we will be pursuing appropriate remedies.

And, by Tuesday night the Times had fired Boies:

Like other large firms, the Boies firm asked us to waive certain conflicts in advance. We understood that to mean that it could openly bring actions that may be adverse to our interests and we would be free to terminate our relationship with the firm if we felt the new representation posed a serious conflict. We never contemplated that the law firm would contract with an intelligence firm to conduct a secret spying operation aimed at our reporting and our reporters. Such an operation is reprehensible, and the Boies firm must have known that its existence would have been material in our decision whether to continue using the firm. Whatever legalistic arguments and justifications can be made, we should have been treated better by a firm that we trusted.

Boies is now trying to salvage his reputation by apologizing:

“I regret having done this. It was a mistake to contract with, and pay on behalf of a client, investigators who we did not select and did not control. I would never knowingly participate in an effort to intimidate or silence women or anyone else, including the conduct described in the New Yorker article. That is not who I am.”

Let's be clear though: this is absolute bullshit by David Boies. It is who he is. Again, he's threatened plenty of media properties in the past -- including us -- with bogus threats attempting to stifle a free press and to intimidate reporters into not covering his big name clients. He did it with Theranos. He did it with Sony Pictures. And it certainly appears that he did much more than that for Harvey Weinstein under significantly more shocking circumstances.

So isn't it about time that people took Boies down off the pedestal he's been on for many years? He may be famous, but he's been doing horrible things for the rich and powerful, often attacking and threatening a free press for years. Hiring spies for Harvey Weinstein is just the latest -- and perhaps most horrific -- example.

* Boies "representation" of Oracle in that case resulted in what remains a truly classic benchslap from Judge William Alsup for Boies making downright silly claims about programming.

JUDGE ALSUP: All right. I have -- I was not good -- I couldn't have told you the first thing about Java before this trial. But, I have done and still do a lot of programming myself in other languages. I have written blocks of code like rangeCheck a hundred times or more. I could do it. You could do it. It is so simple. The idea that somebody copied that in order to get to market faster, when it would be just as fast to write it out, it was an accident that that thing got in there. There was no way that you could say that that was speeding them along to the marketplace. That is not a good argument.

MR. BOIES: Your Honor --

JUDGE ALSUP: You're one of the best lawyers in America. How can you even make that argument? You know, maybe the answer is because you are so good it sounds legit. But it is not legit. That is not a good argument.

MR. BOIES: Your Honor, let me approach it this way, first, okay. I want to come back to rangeCheck. All right.

JUDGE ALSUP: RangeCheck. All it does is it makes sure that the numbers you're inputting are within a range. And if they're not, they give it some kind of exceptional treatment. It is so -- that witness, when he said a high school student would do this, is absolutely right.

MR. BOIES: He didn't say a high school student would do it in an hour, all right.

JUDGE ALSUP: Less than -- in five minutes, Mr. Boies.

MR. BOIES: Well, Your Honor --

JUDGE ALSUP: If you know the language. Once you know the language, it is a five-minute proposition.

And, on an additional note, if you haven't yet, you should read Sarah Jeong's absolutely delightful profile of Judge Alsup and his coding hobby.

Filed Under: david boies, free press, harvey weinstein, intimidating the press, reporters, spying, squelching stories
Companies: black cube, ny times

The 'Gawker Effect' Is Chilling Investigative Reporting Across The US

from the this-is-a-problem dept

When the jury verdict against Gawker came down a year and a half ago, we warned of how problematic it was. We pointed out that it was a big deal even if you absolutely hated Gawker and wanted to see them destroyed. Because, as we noted, the playbook used against Gawker could be used against lots of other publications.

And it's clearly impacting a number of others as well. A couple months ago, we wrote about how the "Gawker Effect" had made it very difficult for a huge investigative piece on R Kelly "holding women against their will" by Jim DeRogatis (a music reporter who has broken a number of R Kelly related stories over the years) to find a home to get published. Lots of publishers wouldn't touch it, not because the reporting wasn't solid, but because they didn't want to face the possibility of libel lawsuits, no matter how silly.

This is happening more and more often these days, including over important stories. Over at the Columbia Journalism Review, Kim Masters has a thoughtful, but depressing, article about how this "Gawker Effect" nearly killed another key story about sexual harassment in Hollywood -- involving Amazon exec Roy Price (who runs Amazon's Hollywood efforts) allegedly sexually harassing Isa Hackett, a producer on the Amazon hit show "The Man in the High Castle." The article was eventually published at The Information (behind a paywall). Last month, there was an article at Recode speculating that other publications passed on the story because Price, like Hulk Hogan (and like Harvey Weinstein and like Shiva Ayyadurai, the plaintiff in a lawsuit against us), employed lawyer Charles Harder. In the Recode piece, The Information's CEO, Jessica Lessin is quoted as saying that other publications passed because of threats from lawyers:

Lessin, referencing the Masters story, wrote that “we recently published a version of a story that three other publications passed on after very high-priced lawyers promised to sue them."

The Recode piece also quotes people from other publications who argued that there were other reasons for passing -- including that the earlier versions of Masters' story didn't have enough on-the-record sources. For what it's worth, one of the publications that passed -- the Hollywood Reporter -- recently made new headlines in this story by getting an interview with Isa Hackett, in which she revealed more details about Price's behavior towards her.

In the CJR piece, Masters shares more of the details of what happened behind the scenes, and how pressure was applied, via legal threats, to try to kill the story. It's at least marginally troubling that she notes it wasn't just Charles Harder who was making the threats, but also well-known lawyer Lisa Bloom. Bloom was, somewhat famously, also part of Harvey Weinstein's "legal team" which struck many people as odd, since her reputation was for representing the victims of sexual harassment and assault, not the other side. A few days after the Weinstein stories came out, Bloom said she was no longer working for Weinstein (also, recently, Harder claimed he has also stopped working for Weinstein despite earliler promising a lawsuit). She told the Hollywood Reporter, she worked with him to "change the way these stories go." And, more specifically to avoid the pattern of "when the story comes out, attack the accuser, deny, deny, deny, and fight like hell" because, as Bloom told THR: "I know how damaging that is to them, how hurtful, how scary. It’s emotionally devastating." Over the weekend, she told Buzzfeed something similar:

“All I can say is, from my perspective, I thought, ‘Here is my chance to get to the root of the problem from the inside. I am usually on the outside throwing stones. Here is my chance to be in the inside and to get a guy to handle this thing in a different way.’ I thought that would be a positive thing, but clearly it did not go over at all.”

But Masters notes that Bloom and Harder together threatened the reporting she did on Price:

People in Hollywood and the media world were surprised my byline ended up in The Information, given that I worked at The Hollywood Reporter. (My editor there, Matthew Belloni, said in a Recode article about my difficulties getting the story published that “any suggestion that a story on this topic didn’t run because of outside pressure would be false.”) THR did allow me to shop the story elsewhere, but it came with a guaranteed threat of litigation from Price’s attorneys. Over the weeks that would follow, as I began searching for a home for my scoop, Harder and Bloom convinced every publication that considered my story that they weren’t just threatening legal action but would indeed sue.

Perhaps that threat was so convincing because Harder had handled Hogan’s devastating suit against Gawker with backing from billionaire Peter Thiel. In her zeal to protect her client—who has yet to address any of the allegations in my piece publicly—Bloom claimed that I had turned on Price after he rebuffed my demand to have Amazon underwrite The Business, the public-radio show that I host on KCRW. I can’t guess who concocted that allegation, but I assume the idea was to establish a potential argument that I had behaved unethically and had a personal grudge against him and therefore didn’t care what the facts were. (Since Price is a public figure, his only hope of prevailing in court would be to argue that I published information I knew to be false or acted in reckless disregard of whether it was false.)

When I first read the claim in an email from Bloom, I was angry, but I also laughed because it was ridiculous. I’ve never discussed underwriting with anyone, even internally at KCRW. I don’t know the first thing about it. I’m told Bloom insisted she had proof, though of course none was produced. My editor at THR told her that the story was false, but she repeated it to other publications nonetheless. (Bloom on Thursday said she no longer is working with Price.)

Masters admits that the earlier work didn't yet have the full on-the-record statement from Hackett, which was necessary to make the piece publishable, but does note how much the legal hounding from Bloom and Harder made it that much more difficult to get a publication to go with the piece.

By the time I was done, I had talks with more than six publications and went through legal review at three. The anxiety is always high when there’s a threat of a lawsuit around a story, but this time, it seemed off the charts. At one point, an attorney reviewing the piece only sputtered when I asked her to explain what, exactly, was legally problematic with portions of the story that she wanted to delete. She literally could not construct a sentence to explain her reasoning.

There's a lot more in Masters' piece that is worth reading and that highlights just how damaging the Gawker Effect has become. Again, even if you absolutely hated Gawker and cheered its demise, you should be concerned with what it has wrought. Masters hopes that with the Weinstein story getting so much attention it will help "change the environment" and encourage more people to come forward, and to embolden more publishers to publish these kinds of investigative reports.

However, there's still a missing piece here. Masters is right that these legal threats are a problem, and hopefully the attention brought about from exposing sexual harassers will embolden more publishers to publish these articles, even in the face of coordinated legal threats -- but what we still really need are stronger anti-SLAPP laws in various states (some of which still have none, and many of which have very weak ones). Or, even better, a comprehensive federal anti-SLAPP law. Such a law would allow publications to have more confidence in publishing such exposes of bad behavior by the rich and powerful, since they could push back against bogus legal threats by noting that filing a lawsuit probably won't get very far, and almost certainly would force the plaintiff to pay legal fees. We've been calling for such a federal anti-SLAPP law for nearly a decade, and I hope we're not still calling for one a decade from now. Masters' story is yet more evidence that Congress needs to act, now.

Filed Under: anti-slapp, charles harder, defamation, gawker effect, harvey weinstein, kim masters, lisa bloom, litigation, roy price, sexual harassment, slapp, threats
Companies: amazon, gawker

Harvey Weinstein Tries Every Possible Response To Explosive NY Times Story

from the wanna-try-that-again,-harvey dept

Last week, the Hollywood Reporter broke the story that famed Hollywood movie mogul Harvey Weinstein (formerly of Miramax and more recently of the Weinstein Company -- from which he was fired over the weekend, despite practically begging for his friends to support him) had seriously lawyered up, hiring three high profile lawyers: David Boies, Lisa Bloom and Charles Harder to deal with two apparent stories that were in the works -- one from the NY Times and another from the New Yorker (two publications not known for backing down from threats) -- about some fairly horrible alleged behavior by Weinstein towards young female actresses, employees and more.

A day later, the NY Times published its article about Harvey Weinstein and, damn, it's quite an article. It details multiple cases of alleged sexual harassment by Weinstein against both employees and hopeful actresses -- and includes claims of Weinstein having to pay off some of those individuals. The article was not based on a single source, but many sources, including one actress (Ashley Judd) willing to put her name behind the accusations (and just as we were completing this post, the New Yorker published its piece which appears to be more detailed and more damning, with more names and even more horrifying stories about Weinstein). And with the NY Times' publication, much of the "legal team" leaped into action. Of course, if you're not familiar with the three lawyers named above, it may help to do a quick review, before we dig in on the myriad (often contradictory) responses we've now seen from Weinstein and his legal team over the past few days.

Boies, of course, shows up everywhere these days, but often not for good reasons. You may recall him representing SCO in its quixotic attack on Linux. Or representing Oracle against Google in claiming that APIs can be copyrightable. Or representing Theranos, the now disgraced biotech firm that exaggerated what it could do. Or representing Sony Pictures when its emails were all leaked, to the point of sending a ridiculous threat letter to us for daring to report on those emails. Lisa Bloom's only appearance here was when she was on the right side of the silly James Woods defamation case against an anonymous tweeter. Many found Bloom's appearance as part of the team quite odd, since she's built her reputation on representing victims of sexual harassment. She later claimed she was just advising Weinstein, rather than acting as his lawyer (hmm....) and then, over the weekend, she resigned from whatever it was that she was doing. However, the NY Times has a quite incredible article suggesting her initial response to the accusations was to effectively go after the women, by posting "photos of several of the accusers in very friendly poses with Harvey after his alleged misconduct." Ick.

And, Charles Harder? What is there that needs to be said about Charles Harder? Oh, right, that he's currently leading the legal team that's suing us in a defamation suit that we've won (though he has since appealed).

Within hours of the article being published, Harder announced that Weinstein would be suing the NY Times for defamation.

"The New York Times published today a story that is saturated with false and defamatory statements about Harvey Weinstein," he writes in an email to The Hollywood Reporter. "It relies on mostly hearsay accounts and a faulty report, apparently stolen from an employee personnel file, which has been debunked by nine different eyewitnesses. We sent the Times the facts and evidence, but they ignored it and rushed to publish. We are preparing the lawsuit now. All proceeds will be donated to women’s organizations."

But here's the thing: Weinstein himself seems to be admitting that many of the accusations are accurate. He's quoted apologizing for his behavior in the initial NY Times article:

In a statement to The Times on Thursday afternoon, Mr. Weinstein said: “I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it. Though I’m trying to do better, I know I have a long way to go.”

He added that he was working with therapists and planning to take a leave of absence to “deal with this issue head on.”

That seems like an admission. The full statement is even more bizarre:

I came of age in the 60’s and 70’s, when all the rules about behavior and workplaces were different. That was the culture then.

I have since learned it’s not an excuse, in the office - or out of it. To anyone. I realized some time ago that I needed to be a better person and my interactions with the people I work with have changed.

I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it.

Though I’m trying to do better, I know I have a long way to go. That is my commitment. My journey now will be to learn about myself and conquer my demons. Over the last year I've asked Lisa Bloom to tutor me and she's put together a team of people. I've brought on therapists and I plan to take a leave of absence from my company and to deal with this issue head on. I so respect all women and regret what happened. I hope that my actions will speak louder than words and that one day we will all be able to earn their trust and sit down together with Lisa to learn more. Jay Z wrote in 4:44 "I'm not the man I thought I was and I better be that man for my children." The same is true for me. I want a second chance in the community but I know I've got work to do to earn it. I have goals that are now priorities. Trust me, this isn't an overnight process. I've been trying to do this for 10 years and this is a wake-up call. I cannot be more remorseful about the people I hurt and I plan to do right by all of them.

I am going to need a place to channel that anger so I've decided that I'm going to give the NRA my full attention. I hope Wayne LaPierre will enjoy his retirement party. I'm going to do it at the same place I had my Bar Mitzvah. I'm making a movie about our President, perhaps we can make it a joint retirement party. One year ago, I began organizing a $5 million foundation to give scholarships to women directors at USC. While this might seem coincidental, it has been in the works for a year. It will be named after my mom and I won't disappoint her.

That whole statement is... weird. Others have covered the many problems with it, but it seems like a pretty clear admission. Given that, it's pretty ridiculous to then claim you're suing the NY Times. Under what theory? Well, according to Weinstein, because it didn't give him enough time to respond:

“I mean every word of that apology,” he told TheWrap. “The reason I am suing the New York Times is they didn’t give me enough time to respond.”

Um. What? First of all, he gave an entire statement to the NY Times. So he clearly had time to respond. Second, there's no legal requirement that a news publication needs to give you "enough time to respond," let alone any time to respond. That's not how the press works.

In another interview, he told the NY Post that he's suing because the NY Times wasn't honest with him:

Weinstein said, “What I am saying is that I bear responsibility for my actions, but the reason I am suing is because of the Times’ inability to be honest with me, and their reckless reporting. They told me lies. They made assumptions.

“The Times had a deal with us that they would tell us about the people they had on the record in the story, so we could respond appropriately, but they didn’t live up to the bargain.

“The Times editors were so fearful they were going to be scooped by New York Magazine and they would lose the story, that they went ahead and posted the story filled with reckless reporting, and without checking all they had with me and my team.

Once again, Weinstein seems to be confused about how journalism works -- and what legal requirements there are. Even as rich and powerful as Harvey Weinstein is, there is no legal requirement to give him as much time as he wants to respond. Indeed, his lawyer Bloom admits they had two days:

“Two days ago, after begging, they gave us a couple dozen allegations that spanned 30 years and a dozen countries. They said we have until 1 pm today. We said ‘Why?’ They never said.”

Again, giving two days actually seems kind of generous.

The whole thing seems like Weinstein is trying out any and all possible responses at once. Normally you select one: you deny and sue or you apologize or you try to make a quip and laugh off the accusation. Harvey seems to be doing all of this at once.

He even tried denial (and a quip) before the admission and the threat:

In a brief interview on Wednesday, Weinstein declined to comment on the charges.

"I've not been aware of this," he said. "I don't know what you're talking about, honestly."

[....]

Weinstein later issued a statement through a spokesperson, as did Bloom. “The story sounds so good I want to buy the movie rights,” said Weinstein.

Of course, as the NY Times has pointed out, at no point has Weinstein said what is factually untrue in its reporting. And if you're suing for defamation, that's kind of the first thing you're supposed to do. Meanwhile, it appears that other stories are starting to come out (and they keep coming) -- including some fairly damning claims about attempts to cover up previous investigations. And, perhaps most troubling, a claim that the NY Times had this story a dozen years ago and was pressured into killing it. Of course, perhaps that's the real reason behind the threat of the lawsuit -- to try to scare off others from coming forward. All of the links in this paragraph suggest if that's the theory, well, it's not working. It's also not clear that a lawsuit would be wise. Beyond the failure to give an actual legal reason for the lawsuit so far, as many people have pointed out, it's unclear that Harvey would want to go through the discovery process in such a lawsuit should it get that far.

And, in the meantime, the NY Times has said that Weinstein "should publicly waive the NDAs in the women's agreements so they can tell their stories." If he fails to do so, that says a lot right there.

Still, in the end, it appears that Weinstein's strategy here seems to be... to do all of the following, even if some parts contradict other parts:

1. Deny with a quip ("I don't know what you're talking about, honestly." "I want to buy the movie rights.")
2. Offer a weak excuse that's not even a real excuse ("I came of age in the 60's and 70's")
3. Apologize ("the way I’ve behaved with colleagues in the past has caused a lot of pain," "I cannot be more remorseful about the people I hurt and I plan to do right by all of them.")
4. Threaten to sue ("the reason I am suing is because of the Times’ inability to be honest with me, and their reckless reporting")
5. Claim the story is not accurate ("a story that is saturated with false and defamatory statements about Harvey Weinstein")
6. Say the real problem was that the paper didn't live up to its word ("The Times had a deal with us")
7. Also claim that the problem was not enough time to respond (despite responding) ("The reason I am suing the New York Times is they didn’t give me enough time to respond.")
8. Deflect from being accused of using your power to bed powerless women by... talking about the NRA?!? ("I'm going to give the NRA my full attention.")
9. Insist that you've seen the light and are changing ("I want a second chance in the community but I know I've got work to do to earn it. I have goals that are now priorities. Trust me, this isn't an overnight process. I've been trying to do this for 10 years and this is a wake-up call.")
10. Talk about how you've thrown money at womens' issues, as if that makes this okay ("I began organizing a $5 million foundation to give scholarships to women directors at USC.")

None of these seem particularly genuine at all -- which perhaps explains the contradictory nature of many of them. Instead, it looks an awful lot like how people who are caught doing something bad act when they can't come to terms with what they've done, and will thrash about wildly, trying on every possible response, hoping one of them gets them out of the situation. Who knows if an actual lawsuit will be filed, but of all the possible responses above, that one seems the least likely to end well.

Filed Under: assault, charles harder, david boies, defamation, denial, harassment, harvey weinstein, lisa bloom, threats
Companies: miramax, ny times, weinstein company

Journalists Have No Obligation To Cover A Story About You The Way You Want Them To Cover It

from the glad-we've-got-that-covered dept

As we've discussed a few times, we seem to get threatened with a lawsuit approximately once a month or so (though they tend to come in bunches after extended quiet periods). The threats usually fall under one of two categories: someone upset about something we wrote about them, or someone upset about something someone in the comments said about them. When it's cases where people are upset about something that we have said, often the person is angry that we didn't call them to get their side of the story, as if that were some sort of legal requirement. We've seen such claims very recently, in fact.

However, in a recent court case in California that looked at exactly that question, a judge made it pretty damn clear that journalists have absolutely no legal requirement to reach out to the people they are writing about. The story is a fairly crazy one. The Associated Press wrote a story about a court granting Sheryl Crow a three years restraining order against a guy named Philip Sparks, who had admitted to threatening to shoot both Crow and famed movie exec Harvey Weinstein. The AP reported that Sparks had accused both Crow and Weinstein of "stealing $7.5 million from him, videotaping and following him without permission and leaving him homeless." It also reported that a forensic psychiatrist had testified that "Mr. Sparks is unambiguously delusional."

In response, Sparks sued the Associated Press, arguing that the article was defamatory. Since it was filed in California and California has a good anti-SLAPP law, the AP filed an anti-SLAPP motion. Sparks tried to argue against the First Amendment: "There needs to be a boundary between the Media and the First Amendment, otherwise the Media can hide behind the First Amendment and publish anything that they want regardless if the statements are false, or violate one's civil rights." Of course, that's not true. Defamation laws still apply to the press, but the key issue here seemed to really be about whether or not the AP needed to report on Sparks' version of the story.

Thankfully, the judge pointed out that this was simply untrue. The "tentative order" from LA Superior Court judge Rolf Treu has some useful quotes. As an aside, the website for the LA Superior Court is horrifically bad and nearly impossible to navigate. The fact that it says: "This site is best viewed using Internet Explorer 5 or higher." should tell you something... After a fair bit of poking and prodding, I finally found the ruling, which I've published here and embedded below. But the key point is that there is no requirement to get his side of the story:

To the extent Plaintiff takes issue with Defendant's failure to report facts that Plaintiff raised during the hearing (see Pl.'s Response filed 1/11/13 p. 12-13 (concerning a security expert who pretended to be Plaintiff's lawyer and challenges to Dr. Glaser's diagnosis)), Defendant is not required to present Plaintiff's side of his story or his key facts

The court also pointed out that the AP had no requirement to report on the fact that the doctor who declared him delusional had been sanctioned by the Medical Board of California, noting that "there is no such requirement." The judge makes the key point: as long as the AP reported accurately, they were not required to cover the story the way Sparks wanted them to cover it:

To the average reader, the substance of judicial proceeding was the issuance of the restraining orders, which was accurately described by Defendant's article.

While this just confirms that which was already known, it seemed useful to remind people of this basic fact. Just because someone doesn't contact you or report things the way you want them to, it doesn't mean it's against the law.

Filed Under: contact, first amendment, harvey weinstein, journalists, other side, philip sparks, reporting, sheryl crow

Harvey Weinstein's 'Hang 'Em First' Approach To Piracy Hits All The Wrong Suspects

from the research-not-his-strong-suit? dept

I've heard enough stories about the legendary film producers Harvey and Bob Weinstein to recognize that they're known as being characters around Hollywood -- and sometimes are known to make some quirky decisions. In a recent edition of Kevin Smith's Smoviemakers podcast, they discuss how the Weinsteins knew they had a terrible movie in Dracula 2000 but released it anyway because "it's called Dracula 2000."

So, somehow it doesn't surprise me that Harvey Weinstein recently complained publicly about piracy -- but seemed confused and ignorant about who to blame. His main target: the tech industry providing him all the tools to get into the 21st century. But, he seems determined to stay in the past -- and live in a world of ignorance. It's as if he's heard a few of the MPAA talking points, as well as some of the more hysterically misguided anti-piracy rants online... and synthesized them into the ultimate in clueless rants:

Hollywood power player Harvey Weinstein has urged Big Content to take a “hang ‘em first and talk about it later” stance when it comes to piracy.

Right, because when you're ignorant and pointing the finger at innocent players, it's always better to kill first and realize you're wrong later.

Keynoting at the BFI London Film Festival, he railed against the online industries' approach to piracy, and slammed Apple and Google for “getting paid, not the actors.”

On what is he basing this? Both Apple and Google offer the ability to pay for movies, via deals negotiated with Hollywood. If the actors aren't getting paid -- then perhaps it's the studios' fault, with their fun tricks and Hollywood accounting, whereby they set up neat shell companies, who the studios charge huge fees to, so that their movies are never technically "profitable" and residuals never have to be paid. It couldn't be that, could it? Perhaps the reason actors aren't getting paid is because the studios are taking the money that Google and Apple are giving them... and playing accounting tricks.

"I think we are being done a massive disservice by these companies," he said.

Let's see, these are two companies who have built the key pieces of the modern distribution system that allows them to better deliver movies to consumers, including with unique and new monetization options? That's a disservice? Well, I'll grant you, perhaps Harvey's right that they've done a disservice to studio bosses in that they've disrupted them. The business of the studio used to be to act as the gatekeeper on promotion, distribution and monetization of movies. But Apple, Google and others are changing things so that the studio heads have less control over the market -- and the filmmakers can actually go direct. No wonder he hates them.

“I think after the [US Presidential] election we need to rally filmmakers, content providers and musicians around the world as long as these companies [continue to make content available] under the guise of free Internet.”

Good luck with that. Besides, he seems very confused in thinking that it's Apple and Google that are somehow broadcasting his content for free. That's not the case, and you'd think someone with more than two seconds of experience with the internet would recognize that.

“I love it when these Internet dudes say to me, hey man; we just want to be 'content neutral.' Next time, I'll say sure, I'll get my tie dye shirt and come and sit in your billion dollar mansion in San Francisco or Silicon Valley for a while, soak it up," he quipped.

Really no need to comment on that one. He then praised France's HADOPI three strikes law and pretended to prove a point.

"If an Internet company steals content, they shut it down. And let me tell you, Apple France, Yahoo France or Google France, none of them have gone out of business."

Of course, that's not true at all. He's displaying his near total ignorance (yet again). All Hadopi does is send individuals (not companies) accused (not convicted) of uploading unauthorized content, letters warning them that their connections could be cut off (and after three of these, they can lose service). So, no, they don't "shut down" an internet company. It has nothing to do with that at all. Also, it's been a colossal failure. Even after Hadopi fudged the numbers to make their results look better there has been no increase in sales and the current government has declared Hadopi to be a failure and wants to cut its funding.

The fact that it has done nothing to increase sales is the key point. Since Harvey was talking about "getting actors paid" (a red herring, of course, but...), you'd think that he'd be a lot more concerned about whether or not the 3 strikes policy actually worked to get more people paid. It hasn't. So, if his concern is getting actors paid, Hadopi hasn't actually helped.

There are plenty of discussions to be had about how to deal with whatever challenges and opportunities the film business currently faces. But this wasn't one of them. Pointing the finger and blaming tech companies, even though they're not doing what he claims they're doing -- and then praising a failed law that hasn't done what he thought it had done -- is not productive at all. It just makes him look out of touch.

Filed Under: attacks, harvey weinstein, piracy
Companies: apple, google, yahoo

MPAA Stops Picking On 'Bully', Actually Gets Some Good Press For Once

from the backing-down dept

When the producers of the documentary Bully decided to protest the MPAA rating system, and then AMC supported them by announcing they would screen the unrated film, I wrote about how it represented a serious erosion of the MPAA's artificial grip on film ratings. Since then, the MPAA has softened on the issue, and agreed to grant a PG-13 rating to a slightly-edited version of the movie:

The change was made following the removal of several instances of the F-word, but leaving intact a particularly powerful and important scene of teen Alex Libby being bullied and harassed on a bus. In a press release, distributor The Weinstein Company lauded the MPAA's decision, calling it a victory "for the parents, educators, lawmakers, and most importantly, children, everywhere who have been fighting for months for the appropriate PG-13 rating without cutting some of the most sensitive moments."

Well, that's probably the nicest thing a non-member has said about the MPAA in awhile. Harvey Weinstein himself said "Senator Dodd is a hero for championing this cause", conjuring up images of the mighty MPAA CEO carving through hordes of busybodies from the Parents Television Council. But while Chris Dodd is surely happy for some good press, his recent interview with The Hollywood Reporter (the one in which he dropped vague hints about the return of SOPA) suggests the MPAA's decision may have been primarily personal:

THR: Why did you host a screening of Bully at the MPAA with Harvey Weinstein when The Weinstein Co. isn't a member company?

Dodd: Because I care about the issue, and I thought it was a great film. I called Harvey, and I said I would invite the superintendent of schools, teachers and principals, an expert on bullying and Lee Hirsch, the director. We had a great discussion after the screening. You're right, Harvey is not a member of the MPAA, but he's a brilliant film producer, and it's an important film on an important subject matter. It is utilizing the platform I was given at the MPAA.

THR: But Weinstein was highly critical of the ratings board at the time and has used his attacks against the board to market the movie.

Dodd: First of all, I've known Harvey for 25, 30 years, and we've been friends. He was very helpful to me as a candidate for Congress and as a senator over the years.

There's no "second of all" forthcoming. He was just "utilizing the platform" he was "given" to do favors for his friends. It's nice to see that he's still putting the skill-set he perfected in politics to good use as a lobbyist.

Filed Under: bully, chris dodd, film ratings, harvey weinstein
Companies: amc, mpaa