Judge Sends Devin Nunes' SLAPP Suits Against CNN And Washington Post Off To Their Proper Venues

from the they-deserve-to-be-in-the-trash dept

It appears that at least one judge handling Devin Nunes' various SLAPP suits in Virginia has caught on to at least some of what's going on here. Judge Robert E. Payne has now transferred two of his lawsuits -- the ridiculous defamation filing against CNN and the even sillier SLAPP suit against the Washington Post -- to better venues. In both cases, the judge seems pretty fed up with Nunes' lawyer, Stephen Biss, opening both by quoting what was said to Biss in yet another one of his silly SLAPP suits:

It is with chagrin that [the] Court must begin to address this motion by observing that . . . Plaitiff[] engages in ad hominin attacks against [CNN and others in the Amended Complaint,] which the Court cannot tolerate. . . . The Court reminds Counsel for Plaintiff[] that, as an officer of the Court, he may be sanctioned for engaging in conduct unbefitting of this Court.

There's another version of this in the Washington Post transfer, but with the defendants there rather than CNN.

For the CNN case, here's the order shipping the case off to the Southern District of New York instead of Virginia.

The court went through various tests that all seemed to raise the question: why is Nunes filing this case in this court?

It is undisputed that the Eastern District of Virginia is not Nunes's home forum. (ECF No. 20 at 7 (Nunes stating that he "is a citizen of California").) That Nunes "works at the Capitol within a few minutes' drive of Virginia," (id.), and "participates in oversight of the U.S. national security apparatus, including the intelligence-related activities of seventeen agencies, departments, and other elements of the United States Government, most of which is located in Virginia,"... does not alter this fact. Additionally,... the offending act at issue--the publication of the Article--did not occur in Virginia. The Article was researched, written, and published in New York and, to some extent, Washington, D.C. Its subject matter has nothing to do with Virginia, and the Eastern District of Virginia is thus not the nucleus of operative facts.

The court brushes off the fact that the article could be read in Virginia, noting that if that were the deciding factor, cases could be brought anywhere. It also laughs off the idea that the venue might be appropriate because that's where Steven Biss resides, relegating that silly argument to a footnote: "convenience to counsel is not an appropriate consideration in resolving a motion to transfer venue."

The court then notes that NY is much more convenient for most material witnesses, and again brushes off Biss/Nunes' attempts to throw some "local to Virginia" witnesses into the stew to muddy things up:

CNN argues that the witness convenience factor "squarely supports transfer" because Ward, Cuomo, and Bondy all reside in New York.... That all three key witnesses reside in New York favors transfer.

The only witness Nunes has identified as residing in Virginia is Parnas's former attorney, Edward MacMahon, who was mentioned only once in the Article and who has not been shown to be a material witness.... Additionally, Nunes contends that Jake Tapper..., who resides in Washington, D.C., and Parnas and Igor Fruman--Parnas's business partner and co-defendant,... who reside in Florida, are "material witnesses." ... It is clear that Tapper is not a material witness.... With respect to Parnas and Fruman, even assuming that they are material witnesses, both of these witnesses would need to travel from Florida, and New York is likely to be more accessible than Richmond, Virginia. Additionally, as CNN notes, both Parnas and Fruman are under indictment in the SDNY.

One other interesting point: the court points out that the parties are debating whether or not California's or New York's laws should apply to the case, and that supports a transfer to SDNY, which obviously understands NY law. And, the court says, even if it turns out that California's laws will apply (in which case, California's anti-SLAPP could be applied...), the court says that the SDNY is readily familiar with California law.

Separately, though, it's pretty clear that the judge is not at all happy about how Biss handled the case, and his frustration is evident. He calls out the problem of forum shopping, and suggests that the court has previously warned Biss to knock it off:

... the Court has significant concerns about forum shopping. As the Court has explained to Plaintiff's on numerous occassions, the "Court cannot stand as a willing repository for cases which have no real nexus to this district. The 'rocket docket' certainly attracts plaintiff[s], but the Court must ensure that this attraction does not dull the ability of the Court to continue to act in an expeditions manner."...

The order to transfer the Washington Post case to DC is pretty similar:

The District of Columbia is also a proper venue for this action. Venue is proper... because a "substantial part of the events or omissions giving rise to the claims occurred" in Washington, D.C. Venue is also proper... because the Post "resides" in Washington, D.C., given that the Post is subject to personal jurisdiction there, and "all defendants are residents of the State in which the district is located." Consequently, because jurisdiction and venue would both be proper in the District of Columbia, Nunes could have brought this case there...

Also, there's the fact that Nunes' lives and works in DC:

That Nunes "works at the Capitol within a few minutes' drive of Virginia" and "oversees the intelligence community, including ODNI which is located in Virginia" does not alter this fact... Indeed, Nunes's assertion that he "works at the Capitol," which is located in Washington, D.C., acts to support transferring this action to the District of Columbia.

The fact that the Washington Post prints its print edition in Virginia is... not enough to make it the proper venue:

Moreover, the Eastern District of Virginia is not the nucleus of operative facts. The offending act at issue--the publication of the Article online--occurred in Washington, D.C. ... Additionally, the Article was researched, written, and edited in Washington, D.C. with assistance from a journalist located in Moscow, Russia, not Virginia... The only connection between this action and Virginia, besides the location of Plaintiff's counsel, is that the Article was printed in Springfield, Virginia. That tenuous connection is insufficient to give significant weight to Nunes' choice of forum.

As the judge later notes: "There is no logical connection between the events in this case and this district."

It seems clear that Judge Payne sees what Biss is trying to do here, and given that, Biss may actually be at least mildly relieved to have these cases out of this judge's courtroom.

Of course, in the CNN case, NY has a very weak anti-SLAPP law as well, so that part won't necessarily help CNN. However, if CNN can convince the court that California's anti-SLAPP law applies (which it might...), then Nunes could be on the hook for CNN's extensive legal costs. As for the Washington Post case, DC does have a good anti-SLAPP law, but it's been held not to be available in federal court there, meaning that might be limited too. Still, I really do wonder how much guidance Biss has given Nunes about the liability that he, himself, may end up facing in all of these lawsuits if California's anti-SLAPP law is applied?

Filed Under: anti-slapp, defamation, devin nunes, robert e. payne, slapp, slapp suits, steven biss, venue, virginia
Companies: cnn, washington post

If You're Reporting On Trump's Supposed Plans For 'Anti-Conservative Bias' Panel, Shouldn't You Mention The 1st Amendment?

from the just-saying dept

Over the weekend, the Wall Street Journal reported that "President Trump is considering establishing a panel to review complaints of anti-conservative bias on social media." That story is likely behind a paywall, though Fox News (natch) reposted most of it and lots of tech news sites wrote up their own versions of the report.

The basis is exactly what you think it is. A bunch of Trump supporters have been falsely insisting that social media companies are unfairly "biased" against conservatives. There is exactly zero evidence to date to support this. There are a few anecdotes of whiny assholes, who violated terms of service, losing service, and a few anecdotes of just not very good content moderation (though, those seem to fall pretty broadly across the political spectrum). There is no indication that any of the moderation activity is unfairly targeting conservatives or even that there is any "bias" at all. I'm sure some people will rush to the comments here with one of two reactions: they will either call me "blind" and complain that I'm simply not looking around (though they will present no actual evidence) or they will cite a few meaningless anecdotes, ignoring that a few anecdotes on platforms that have to make literally millions of moderation choices, is not evidence of bias.

But, more importantly: the government can't do anything even if they were biased. And this is where all of the reporting I've seen so far falls down. Most clearly, the government simply cannot force platforms to moderate in a certain way. That would violate the 1st Amendment. So even if a panel is formed, it couldn't actually do anything to change things, beyond just being an annoying pest. But, it seems like the media should be making this clear. Any panel cannot force internet companies to treat political viewpoints in some different manner. That's a blatant 1st Amendment problem.

Separately, even the formation of the panel may very well present a 1st Amendment problem on its own, because it is clearly the government using its will to try to pressure private companies into treating certain political viewpoints differently. Remember what Judge Posner wrote in Dart v. Backpage, in which he dinged a sheriff, Thomas Dart, for merely sending a letter that was vaguely threatening to the free speech rights of an internet platform: " Some public officials doubtless disapprove of bars, or pets and therefore pet supplies, or yard sales, or lawyers,... or men dating men or women dating women—but... it would be a clear abuse of power for public officials to try to eliminate them not by expressing an opinion but by threatening ... third parties, with legal or other coercive governmental action."

Just because government officials are upset with 1st Amendment protected speech choices of the companies, that does not mean they can do something that is obviously a threat of coercive action.

Anyone -- including the Wall Street Journal -- reporting on this stuff owes it to their readers to make that clear. Tragically, so far none of the reports I've seen have done so.

Filed Under: 1st amendment, anti-conservative bias, bias, cda 230, donald trump, intimidation, section 230, social media
Companies: facebook, google

Philippines Government Uses Cybercrime Law To Arrest A Citizen For Calling The President An 'Asshole'

from the shame-truth-can't-be-used-as-a-defense dept

All things are cyber these days, including handy government tools meant to shield thin-skinned leaders from criticism. For a guy who goes around bragging about killing drug dealers, Philippines President Rodrigo Duterte seems oddly unable to handle being called what he is.

Police arrested on Wednesday, May 13, a 41-year-old salesman in Butuan City for a Facebook post where he called President Rodrigo Duterte an "asshole" and "crazy."

Caraga police said in a Facebook post that they arrested Reynaldo Orcullo for allegedly committing cyberlibel, or violation of Section 4(c)(4) of the Cybercrime Law.

Police said Orcullo is now under the custody of the Police Regional Anti-Cybercrime Unit.

Good old libel, but with 100% more "cyber." Whatever due process might have been in place for regular libel is pretty much gone now that it's been stapled to an abusive "cybercrime" law that allows the government to punish critics with impunity. Truth is no defense when charged with "cyberlibel." Nor are opinions considered protected, even though the country's constitution says otherwise. Call the president an "asshole" and you get to go to jail, even it's an opinion that's arguably true.

This is more of the same for President Duterte, whose government has continually harassed (and arrested) journalists for simply reporting the news. This continues to happen in a country with a bill of rights that forbids the government from abridging citizens' free speech rights, including the freedom of the press.

But this is also a country that routinely engages in extrajudicial killings and state-ordained kidnappings. So, a post that criticized Duterte resulted in an arrest, which only served to highlight the president's hypocrisy. Other critics (who remain unarrested at the moment) pointed out cursing at Duterte shouldn't be considered offensive when the president himself hurls obscenities towards his political enemies in nationally televised speeches.

Then there's this response from the police department, which sets some pretty arbitrary standards for "free" speech.

"Again I remind our social media users to think thrice before posting on any social media platform. Be responsible netizens. We do enjoy the blessings of democracy but never go beyond from what you think is right without minding you violate the provisions of the law," [police chief Joselito] Esquivel said.

Enjoy your free speech, citizens. But self-censor when you do. Otherwise, expect to spend some time being subjected to a criminal justice system that has had every one of its excesses blessed by the man running the country.

Filed Under: cyberlibel, free speech, insults, philippines, reynaldo orcullo, rodrigo duterte

No, CDA 230 Isn't The Only Thing Keeping Conservatives Off YouTube

from the it's-the-constitution-people dept

Over the last year or so, there’s been a surge of claims that Google, Twitter, YouTube, etc. are “biased against conservatives.”

The starting point of this bad faith argument is a presumption that sites should be “neutral” about their content moderation decisions — decisions like which accounts Twitter suspends, how Google or Facebook rank content in search results or news feeds, or how YouTube promotes or obfuscates videos.

More about this “neutrality” nonsense in a later post, but let’s move on with how this performative mewling works.

So after setting up the strawman standard of “neutrality,” these self-styled “conservatives” turn to anecdotes showing that their online postings were unpublished, de-monetized, shadow-banned, or otherwise not made available to the widest audience possible.

These anecdotes are, of course, offered as evidence that sites haven’t been “neutral.”

And it’s not just some unfocused wingnut whining. This attitude is also driving a number of legislative proposals to amend and scale back CDA 230 — the law that makes the internet go.

Conservative Senators like Josh Hawley, Ted Cruz, and Lindsey Graham — lawyers all, who surely know better — bitch and moan about CDA 230’s content moderation immunity. If only sites didn’t have this freebie, they say — well, then, we’d see some neutrality and fair treatment, yessiree.

This is total bullshit.

Sure, CDA 230(c)(2) makes sites immune from being sued for their content moderation decisions. But that’s only important to the extent it keeps people from treating “community guidelines” and “acceptable use policies” as matters of contract that can be sued over.

Moderation? Curation? Promotion? All of that stuff is fully protected by the First Amendment.

Really, I can’t stress this enough:

CONTENT MODERATION DECISIONS ARE PROTECTED BY THE FIRST AMENDMENT.

Eliminating content moderation protections from CDA 230 doesn’t change this fact.

It can’t change this fact. Because CDA 230 is a statute and not the FIRST AMENDMENT.

So why all the arguing for CDA 230 to be carved back? Some of it is surely just bad-faith angst about “big tech,” misplaced in a way that would unduly harm small, innovative sites. But a lot of of it is just knee-jerk reaction from those who actually think that removing the immunity-for-moderation found in CDA 230(c)(2) will usher in a glorious new world where sites will have to publish everything.

Which, by the way, would be awful. Any site that just published virtually everything users posted (that’s the true “First Amendment standard”) would be an unusable hellhole. No site is going to do that — and, again . . .

They don’t have to BECAUSE THE FIRST AMENDMENT PROTECTS CONTENT MODERATION DECISIONS.

Reposted from the Socially Awkward blog.

Filed Under: 1st amendment, cda 230, conservative censorship, conservatives, content moderation, free speech, neutrality, section 230
Companies: facebook, google, twitter, youtube

French Government Passes Hate Speech Law, Will Allow Law Enforcement To Run The Internet

from the thanks-I-hate-it dept

Whatever ills there are in the world, the French government is pretty sure American tech companies should solve them. Or, at the very least, agree to be punished for failing to prevent the unpreventable.

Having decided Google should pay French newspapers for sending them traffic, the French government is finally enacting its long-threatened "hate speech" law -- one that took all the bad/backfiring ideas from Germany's hate speech legislation, reformatting it slightly for French sensibilities.

Officials claimed it was more difficult to remove anti-Semitic speech than it was to remove pirated content, which must have come as a surprise to several incumbent industries. The law falls into one of those "we'll know it when we see it" gray areas that tech companies will be forced to police. Facebook has already helpfully offered to forward user info to French authorities to ensure no online stupidity goes unpunished. And special interest groups have already offered their input, asking the government to treat things like the online disparagement of agriculture and livestock breeding as a criminal act.

The law is now in place, reports Politico.

After months of debate, the lower house of Parliament adopted the controversial legislation, which will require platforms such as Google, Twitter and Facebook to remove flagged hateful content within 24 hours and flagged terrorist propaganda within one hour. Failure to do so could result in fines of up to €1.25 million.

The law, which echoes similar rules already in place in Germany, piles more pressure on Silicon Valley firms to police millions of daily posts in Europe's two most populous countries.

Apparently this legislation has been at the top of the French government's to-do list for a couple of years now. Politico points out it's the first non-Covid-related legislation to have come up for a vote since the middle of March. Supposedly the French public demanded action, albeit indirectly.

"During the lockdown, hate speech online has increased ... We can no longer rely on the platforms' goodwill..." Junior Digital Affairs Minister Cédric O told the National Assembly ahead of the vote.

Having more people online more often is going to increase anything, not just "hate speech" the French government believes it can regulate into nonexistence. The bill's passage also comes front-loaded with irony. MP Laetitia Avia, one of the sponsors of the law, has been accused of making racist, homophobic, and sexist comments to her assistants.

The law has received plenty of criticism on its way to a vote, but nothing seems to have stopped its momentum -- not even the EU Commission's assertion that France's hate speech law is not compliant with EU law.

What's next for platforms is more of the impossible: moderation at scale targeting speech that isn't easy to target. Expect collateral damage, starting with satire and moving on to those who attempt to highlight hateful speech by others, only to find themselves censored and/or prosecuted for pointing out the bigotry of others.

This hate speech law has been cobbled onto existing anti-terrorism laws, turning law enforcement into the final arbiters of perceived offenses. Any notions of due process have been eliminated, streamlining the consolidation of power to a single branch of the government. This is digital rights group NGO La Quadrature's assessment of the law.

The separation of powers is entirely ruled out : it is the police who decide the criteria for censoring a site (in law, the concept of "terrorism" is broad enough to give it wide discretion, for example against demonstrators ); the police decide whether a site should be censored; it is the police who execute the sanction against the site. The judge is completely absent from the entire chain that leads to site censorship.

At the very least, the law is a handy way for the French government to insert itself into the moderation efforts of companies located halfway around the world. Setting up impossible mandates guarantees failure by those affected by them. And it's not just going to make companies like Facebook and Google reconsider their offerings in other countries. It's going to prevent new platforms and services from entering the market, since they'll be asked to do the impossible the moment they start hosting content created by French users. Meanwhile, French citizens are being asked to fund the diminishing of their own free speech rights -- all under the guise of stopping hate and terrorism. All the while, regulators can sit back on watch the tech company-targeting money printer go brrrrr.

Filed Under: censorship, content moderation, france, free speech, hate speech, law enforcement, takedowns
Companies: facebook, google

Hungary's Government Using Pandemic Emergency Powers To Silence Critics

from the how-convenient dept

Every emergency brings with it the temptation for governments to grant themselves extra powers while they deal with the current crisis. When the coronavirus made its way into Hungary, it was too much for the Prime Minister, Viktor Orban, to resist.

Hungary’s parliament has passed a new set of coronavirus measures that includes jail terms for spreading misinformation and gives no clear time limit to a state of emergency that allows the nationalist prime minister, Viktor Orbán, to rule by decree.

[...]

The bill introduces jail terms of up to five years for intentionally spreading misinformation that hinders the government response to the pandemic, leading to fears that it could be used to censor or self-censor criticism of the government response.

There is no effective expiration date for Orban's new "rule by decree" powers. And it's the new quasi-fake news laws that are being used to target critics of the government. Say something derogatory about the government and you should probably expect a visit from the police.

A 64-year-old man was detained by police Tuesday morning at his home near Szerencs, in Borsod county, and taken into custody on suspicion of fearmongering. He was interrogated in connection with a post he made on Facebook on April 28 which, according to police, alleged that the country’s leadership had deliberately timed the lifting of curfew restrictions to coincide with the peak of the coronavirus pandemic, which the man suggested could lead to mass infections.

The man's post did not meet the legal requirements for this charge, hence his release a couple of hours later. His post was addressed to "our dear dictator, our dear leader" and suggested relaxing curfew restrictions would result in a higher death rate. His post closed with him calling Orban a "cruel tyrant," but nothing about the post could be construed to "inhibit" the government's ability to contain the spread of the virus. It's almost impossible for opinions to be "deliberate falsehoods" or "distorted facts" since opinions are not facts, false or otherwise.

This 64-year-old man may have been one of the first to be targeted by this new emergency power, but he's far from the only one.

Hungary’s police said Wednesday they had opened 87 investigations over "scaremongering" since the emergency law took effect. And while some investigations appear to have targeted online posts promoting false facts, others have focused on citizens criticizing the Viktor Orbán government.

One "investigation" detailed in the Politico article involved an opposition activist who was similarly treated to an early morning visit from police over a social media post. Again, no formal charges were brought, but the message was sent all the same. The activist notes that it's not just cops crawling web pages in search of people to prosecute. It's also pro-government citizens who have turned themselves into an ad hoc snitch army to send cops to hassle critics.

Andras Kusinszki, the man taken from his home for calling Orban a dictator, told InsightHungary that the arrest had the intended effect: he will be posting fewer comments critical of Orban. Whether that was the law's intent when it was hastily crafted doesn't matter. That's how it's being used. And that makes the government's defense of its actions particularly nonsensical.

Asked in a virtual press conference Thursday about the two recent cases, Orbán’s chief of staff Gergely Gulyás said the fact that some individuals were released after a few hours “shows the strength of the rule of law.”

No, it doesn't. It shows the government will use a show of force to silence critics, even if it's not willing to go as far as to engage in doomed-to-fail prosecutions. Getting someone out of bed, dumping them into a police car, and taking them in for questioning still sends a message. The message becomes even louder when it's clear to everyone involved the supposedly criminal posts do not come anywhere close to violating these new laws.

Filed Under: censorship, covid-19, emergency powers, fake news, free speech, hungary, misinformation, pandemic, viktor orban

Judge Tells Devin Nunes' Dad (And Lawyer Stephen Biss) To Put Up Or Shut Up In Defamation Lawsuit Over Esquire Article

from the the-article-they-don't-want-you-to-read dept

Remember, Rep. Devin Nunes really doesn't want you to read this Esquire article entitled, Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret. He'd be super duper upset if you read it. The article is about how Nunes, who frequently refers to his prior job as a "dairy farmer" in Tulare, California, probably doesn't want the world to know that his family up and left California to take their farm to Iowa. The article is a worthwhile read, detailing how the information about the location of the Nunes' family farm seems to stay hidden -- including how an article that reveals the Nunes' family presence in Iowa, published in the publication Dairy Star in 2009, suddenly disappeared from Dairy Star's website when Lizza showed up in Iowa asking questions. The article also discusses how many farms in the area employ undocumented workers, but that's almost a side plot.

Either way, last fall, we wrote about how Nunes sued over the article in Iowa which, notably, has no anti-SLAPP law. As we pointed out at the time, this seemed like a case that was ripe for Hearst (the publisher of the article) and Lizza to try to make use of California's anti-SLAPP law, even though the case was filed in Iowa, because any reputational harm to Nunes would have to come in California, not Iowa. And, indeed, Hearst's smart lawyers took my advice (just kidding, they knew it without me suggesting it) and have asked the court to use California's anti-SLAPP law:

Iowa choice of law rules dictate that California law supplies the rule of decision in this case. Congressman Nunes pleads that he is “a citizen of California.”... Purported harm to his reputation would be most severely felt in the 22nd Congressional District of California, where Congressman Nunes was, at the time of publication, running for re-election.... In fact, Congressman Nunes expressly alleges that the Article was published for the purpose of “influenc[ing] the 2018 Congressional election.”... And the Amended Complaint rejects the notion that Congressman Nunes has any ties to Iowa, or to the family farm in Sibley. (“Plaintiff does not own an interest in his family’s dairy farm in Iowa, never has, and is not involved in any way in its operations.”).

For what it's worth, the filing also makes standard 12(b)(6) arguments for why the case should be dismissed even absent the California anti-SLAPP motion to strike (which would force Nunes to pay Hearst's considerable legal fees), pointing out that none of the contested statements are actually defamatory, and the complaint comes nowhere near pleading the "actual malice" standard. The judge is still considering that request, but should be ruling shortly.

What I had missed, however, was that earlier this year (perhaps realizing the California exposure of the Devin Nunes' suit), Nunes' lawyer Steven Biss filed a separate lawsuit on behalf of Nunes' family (his father and his brother) and their Iowa farm, Nustar Farms. The complaint is also against Hearst and reporter Ryan Lizza over the same article and makes the same basic defamation claims. This one demanded $25 million (Devin's lawsuit demanded $77.5 million). The court, recognizing the connection between the cases, has consolidated the two cases late last month. At least the second lawsuit has less of an argument for why California's anti-SLAPP should apply, since the plaintiffs are actually in Iowa.

So, Hearst's motion to dismiss in this case merely points out that none of the statements labelled as defamatory in the complaint are... defamatory.

Plaintiffs’ Complaint follows the same cadence as that of Congressman Nunes: It is filled with bluster, hyperbole, and conclusory allegations of fabrication and misconduct, while summarily alleging that 16 statements in the Article are false. But Plaintiffs’ Complaint does not explain why or how any of the 16 challenged statements are actionable, beyond simply quoting them and declaring them “false and defamatory.” The Complaint does not provide any factual information as to what aspects of the statements—some of which are an entire paragraph in length—are false, and why that is so. Plaintiffs have therefore failed to carry their burden of pleading falsity with sufficient factual detail to make the allegation plausible, as required by Twombly and Iqbal. See Point I.A. (At a minimum, the Court should order that Plaintiffs plead a more definite statement, with details explaining precisely how and why they maintain that the challenged statements are false. See Point II.) Plaintiffs should not be permitted to subject Defendants to burdensome discovery that chills their and others’ First Amendment rights without specifying facts that would support their conclusory claims of falsity.

Notwithstanding Plaintiffs’ failure to satisfy Rule 8, every challenged statement is on its face not actionable for one or more reasons. Most are not statements “of and concerning” Plaintiffs. Most are not defamatory; that is, the statements would not tend to injure any of Plaintiffs’ reputations in the community. Several are actually or substantially true, as admitted in the Complaint. And others are nonactionable opinions, as evidenced by the literary journalism format of the Article and the overall context, and moreover such opinions are predicated on facts disclosed in the Article, and are therefore fair comment protected by the First Amendment....

In response Biss filed what strikes me as one of the weakest opposition motions I've seen. It's hand-wavey and misleading, but this post is long enough and I don't even need to dig into why, because, as first noted by Newsweek, Judge CJ Williams has already sided with Hearst, at least in following their "at a minimum" request that the judge make Biss and the Nunes family actually detail how the statements are false.

As you can see, Judge Williams is not convinced by Biss's hand-waving:

Defendants argue that plaintiffs’ complaint fails to identify “what aspect(s) of each statement is supposedly false and defamatory, and . . . what Plaintiffs allege the truth of the matter to be.”... Plaintiffs contend that it is enough for the complaint to simply allege that the statements are false, and defendants can seek the factual details they want through discovery.... As a preliminary matter, the Court finds that plaintiffs must allege facts that, if proven, would show the statements to be false.... It is not enough for plaintiffs to list a number of statements and generally declare them to be false without alleging facts which, if proven, would show them to be false.

The Court then points out that all the performative hyperbole so common in Biss defamation complaints isn't going to cut it:

The remainder of plaintiffs’ complaint is bereft of any factual allegations pertaining to the truth or falsity of the challenged statements. Rather, the remainder of plaintiffs’ complaint is conclusory in nature. Paragraph 15 includes the conclusory allegation that the article contains a “defamatory gist and false implication[s].” Paragraphs 16 through 18 allege defendants republished the article. Paragraph 19 asserts that the article was “knowingly and intentionally flawed,” that “Lizza came to Sibley with a preconceived storyline,” and that he “fabricated a ‘secret’ where none existed,” citing as authority the Federalist’s website that makes a personal attack on Lizza. Under the heading Count I – Defamation, paragraphs 21 through 29 make assertions of defamation, republication and damages, but do not contain any factual allegations pertaining to the truth or falsity of the statements.

As for the actual statements in the article that Biss did call out, the court points out that there's not nearly enough there for a defamation claim. I won't go through each and every one, but the judge's analysis of the very first alleged defamatory statement should give you the gist of all the rest:

1. “So why did [Devin Nunes’] parents and brother cover their tracks after quietly moving the farm to Iowa? Are they hiding something politically explosive? On the ground in Iowa, Esquire searched for the truth—and discovered a lot of paranoia and hypocrisy”.

The first two sentences in this bullet point are questions. Arguably, the first question asserts facts: Devin Nunes’ parents and brother covered their tracks and moved their farm to Iowa. The word “quietly” is an adjective arguably reflecting an opinion. The words “covered their tracks” could be an opinion, but implies facts, that is that the Nunes performed some act to conceal the move. The third sentence appears generally to assert an opinion: Esquire searched for the truth and discovered a lot of paranoia and hypocrisy. Whether Esquire searched for the truth seems a matter of opinion, as is whether Esquire discovered facts that led it or anyone else to conclude that there was some or a lot of something considered to be paranoia or hypocrisy. Plaintiffs’ complaint does not make it clear what it is in this bullet point they allege is false. In theory, plaintiffs could allege facts that would prove the first sentence to be false. That is, plaintiffs could allege that they did not move their farm to Iowa. Plaintiffs’ complaint does not make it clear at all which of these statements plaintiffs are alleging are false. Plaintiffs could be asserting that it is false that the Nunes concealed any move, or they could be asserting that Esquire did not discover paranoia or hypocrisy. Nor does the complaint allege facts showing that any of the statements are false or why they are false. How defendants’ answer the complaint or the defense they assert to the defamation claim turns on what it is that plaintiffs allege is false in this bullet point.

In other words, this is a classic SLAPP suit in which just quoting statements you dislike and declaring them defamatory is not nearly enough to plead a defamation claim. And each of the sixteen different statements laid out in the complaint gets similar treatment, leading to the following summary:

The tedious and laborious exercise of dissecting each of the sixteen bullet points illustrates the deficiency of plaintiffs’ complaint. The complaint is not at all clear as to which facts asserted in these bullet points plaintiffs allege are actually false. Knowing which assertions plaintiffs allege are false is necessary for defendants to be able to answer the complaint and assert a defense. As the Court pointed out as it addressed each bullet point, some of the alleged facts may be defended as opinions or conclusions, others may be defended as not concerning plaintiffs, and still others may be defended as being true. Without knowing which of the facts plaintiffs allege are actually false, defendants are left not knowing how to answer the complaint. The exercise also shows that the complaint fails to allege facts which, if proven, would show that any of the alleged facts are false.

However, rather than dismiss the complaint outright for a failure to state a claim, the Judge is willing to give Biss one more chance, though you can sense the doubt that anything will come of it:

Plaintiffs are granted 14 days to file an amended complaint specifically identifying the facts in the contested article they allege are false, and to allege facts which, if proven, would show those facts to be false. If plaintiffs do not file an amended complaint, the Court may dismiss this matter without further action by defendants.

It seems likely that Biss will file such an amended complaint. It seems unlikely that it will succeed in pleading defamation to a level that won't then be dismissed for failure to state a claim. But, of course, if the intention is just to SLAPP, then the goal is to just drag this out as long as possible anyway.

Once again, this is why Iowa needs an anti-SLAPP law, and we need a federal anti-SLAPP law as well.

Filed Under: anthony nunes, anti-slapp, california, defamation, devin nunes, iowa, ryan lizza, slapp, statements of fact, steven biss
Companies: hearst, nustar farms

North Carolina Supreme Court Overturns Awful Decision By Appeals Court, Says Giving The Finger To Cops Isn't A Crime

from the possibly-unwise-but-not-illegal dept

Last August, the North Carolina Court of Appeals decided it was OK for police officers to use protected speech as the basis for retaliatory stops. The stop -- and the criminal charges that followed -- originated from this interaction:

While assisting the stranded motorist, Trooper Stevens turned his attention to another car traveling on the roadway. Defendant, a passenger in a small white SUV, had his arm outside of the window and was making a back-and-forth waving motion with his hand. As Trooper Stevens turned to look towards the car, defendant’s gesture changed from a waving motion to a pumping up-and-down motion with his middle finger. Believing that defendant was committing the crime of disorderly conduct, Trooper Stevens got into his patrol car to pursue and stop the SUV.

The ensuing stop resulted in the defendant being charged with obstruction -- not because of his middle finger waving, but because he, at first, refused to present his ID to the trooper. He was never charged with the disorderly conduct the trooper felt was criminal enough to justify a stop.

Despite several other courts reaching the opposite conclusion -- that flipping the bird cannot form the basis for a lawful stop -- the NC Court of Appeals went in a different direction.

Here, without having to determine whether Defendant’s conduct of extending his middle finger, in itself, constituted a crime, we conclude that the trooper had reasonable suspicion to initiate the stop of Defendant. The trooper saw Defendant make rude, distracting gestures while traveling on a highway in a moving vehicle in the vicinity of other moving vehicles. A reasonable, objective officer having viewed Defendant’s behavior could believe that a crime had been or was in the process of being committed. For instance, the crime of disorderly conduct in North Carolina is committed where a person “makes or uses any . . . gesture . . . intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace.” N.C. Gen. Stat. § 14-288.4(a)(2) (2017). Defendant’s actions, both his waving and middle finger taken together, aimed at an unknown target could alert an objective officer to an impending breach of the peace.

And just like that, North Carolina law enforcement officers had permission to engage in retaliatory stops. This ruling was greeted with near-unanimous derision, given its hot take on the statute Trooper Stevens pulled out of his ass to justify his actions. At least one law prof speculated social media outrage had something to do with the court's decision to withdraw its opinion roughly two weeks after it had delivered it.

Whatever second thoughts the majority might have had about their conclusion, they weren't enough to overcome their first thoughts. A couple of days later, the court released an amended opinion that changed nothing but how loudly the table was being pounded. It doubled down on its bad legal rationale, claiming that the fact that the rude hand gesture continued after the car had passed the state trooper as the vehicle continued down the road changed it from protected speech (a middle finger extended to law enforcement) to a crime (a middle finger extended to no one in particular).

Unlike the circumstances in those other cases, where all that was involved was an individual expressing contempt to a law enforcement officer, here, it was not clear to the trooper to whom Defendant was continuously gesturing. Indeed, Defendant was well past the trooper when he changed his gesture to a pumping motion with his middle finger extended. While it may be reasonable for the trooper to suspect that the gesturing was, in fact, meant for him, and therefore may be constitutionally protected speech, it was also objectively reasonable for the trooper to suspect that the gesturing was directed toward someone in another vehicle and that the situation was escalating. Such continuous and escalating gesturing directed at a driver in another vehicle, if unchecked, could constitute the crime of “disorderly conduct.”

The stupidity is finally over. The state's Supreme Court has reversed [PDF] the Appeals Court ruling, determining that an objectionable hand gesture alone cannot provide the basis for a traffic stop. (h/t Volokh Conspiracy)

We conclude that these facts alone are insufficient to provide reasonable suspicion that defendant was engaged in disorderly conduct. The fact that Trooper Stevens was unsure of whether defendant’s gesture may have been directed at another vehicle does not, on its own, provide reasonable suspicion that defendant intended to or was plainly likely to provoke violent retaliation from another driver. Likewise, the mere fact that defendant’s gesture changed from waving to “flipping the bird” is insufficient to conclude defendant’s conduct was likely to cause a breach of the peace. Based on the facts in the record, we are unable to infer that, by gesturing with his middle finger, defendant was intending to or was likely to provoke a violent reaction from another driver that would cause a breach of the peace.

Thus, we conclude that it was error for the trial court to find that there was reasonable suspicion of disorderly conduct to justify the stop.

It also appears the government lost interest in defending the actions of Trooper Stevens. Its only argument was that the stop was justified under the community caretaking function, which the Appeals Court rejected in favor of the trooper's disorderly conduct theory. The Supreme Court notes it presented no arguments here at all, making it that much easier for it to overturn the lower court's decision.

In its brief here, the State acknowledges that its sole argument in the Court of Appeals involved the community caretaking exception, and that the court unanimously rejected that argument. In fact, the State agrees that the specific, articulable facts in the record do not establish reasonable suspicion of the crime of disorderly conduct.

That sends the decision back to the Appeals Court, which will have to send it back to the trial court to finally grant the suppression motion that triggered this unfortunate succession of bad decisions by North Carolina courts. Unfortunately, the Supreme Court doesn't go so far as to say giving cops the finger is always protected speech, but it does make it clear it's not a criminal act and, alone, cannot justify a stop.

Filed Under: 1st amendment, free speech, giving the finger, north carolina, police, probable cause

The EARN IT Act Also Threatens Journalists And Their Sources

from the add-it-to-the-list dept

The EARN IT Act is dangerous. It threatens speech on the internet and tech companies' ability to provide secure communications for their users. There may not be anything about encryption in the dry text of the bill, but the threat is there all the same. No one knows what "best practices" the law will demand from online services, but the bill's focus on child porn strongly suggests any platform that "allows" this information to be transmitted using encrypted communications will be targeted by the government.

Bill Barr and Chris Wray have made it clear encryption is the enemy. Both have advocated for encryption backdoors, even if they're both too cowardly to use that term. No one thinks the government and service providers shouldn't do all they can to prevent the sharing of child porn, but undermining encryption isn't the solution. It may shield some child porn producers and consumers from detection, but the government's efforts in this area show encryption hasn't posed much of a problem to investigators and prosecutors.

Encryption protects people who aren't criminals. As Runa Sundvik explains for TechCrunch, targeting encryption via the EARN IT Act also threatens some of the foremost beneficiaries of the First Amendment: journalists.

[T]echnology experts warn the bill not only fails to meet the challenge, it creates new problems of its own. My job is to enable journalists to do their work securely — to communicate with others, research sensitive stories and publish hard-hitting news. This bill introduces significant harm to journalists’ ability to protect their sources.

Strip communications platforms of their encryption and you make it that much easier to expose journalists' sources and snoop on their communications. This isn't an existential threat. It's an actual threat. The FBI has spied on journalists and several successive presidential administrations have made rooting out leakers a priority.

But it does more than harm journalists. It also harms the people they're trying to reach: readers. Encryption protects readers who visit news sites utilizing HTTPS. That's almost all of them at this point. This ensures their connection is shielded from people trying to snoop on their web activity. More importantly, it ensures the sites they reach are legit and the content originating from the journalists the site says it is.

If EARN IT becomes law, whistleblowers and other sources will see their secure options disappear. Tor, Signal, etc. will be considered nothing more than aiders and abettors of criminal activity. Anything secured by encryption will be treated as a virtual dead drop for criminal content.

Protecting children from exploitation is important. But the tradeoff legislators are demanding isn't actually a tradeoff. The American public will receive no net benefit from this tangential attack on encryption. Very often we're first informed about serious government misconduct by journalists. Destroying this outlet works out well for the government so often exposed as untrustworthy, but it does nothing for the governed.

Filed Under: earn it, encryption, journalism

Court Tosses Former Sheriff Arpaio's Attempt To Relitigate His Libel Lawsuit The Court Tossed Last Year

from the guess-it's-time-to-go-forum-shopping dept

When you lose a lawsuit -- as former Sheriff Joe Arpaio did last year -- you have a few options. Arpaio sued a few news outlets for defamation, alleging their reference to him as a convicted felon had done over $300 million in damage to his pristine reputation.

Represented by Larry Klayman, Arpaio came away with a loss. The DC federal court not only said Arpaio failed to state facts pointing to actual malice by the publications, but that Arpaio failed to plead any facts at all. That's classic Klayman lawyering: go light on facts, heavy on rhetoric, and try to avoid being being hit with sanctions and/or having your license suspended for your antics both on and off the court.

The correct thing to do when faced with a dismissal is file a motion to amend the lawsuit or petition the DC appeals court for a second look. Arpaio and Klayman did neither of these things. Instead, they dropped one defendant (CNN) and filed essentially the same lawsuit in the same court that had dismissed Arpaio's previous lawsuit with prejudice. (h/t Adam Steinbaugh)

Having had its time wasted twice with the same lawsuit, the court isn't happy with Arpaio or his representation. This decision [PDF] is even shorter than the 11-page dismissal Arpaio received on his first pass. The court says there's nothing new here and this isn't the way the court system works -- something Arpaio's lawyer should know but apparently chose to ignore.

Regarding claim preclusion, the Court holds that the claims in Arpaio I are, for legal purposes, the same as the claims in Arpaio II. Even though plaintiff added two causes of action in Arpaio II (general defamation and defamation by implication), the Court sees no meaningful distinction between the new causes of action and the old ones. Furthermore, plaintiff does not explain why he could not have asserted all of these claims in Arpaio I.

Nor does the new complaint explain why Arpaio chose not to follow the established procedures for challenging a dismissal.

Plaintiff’s argument that he should have been permitted to file an amended complaint in Arpaio I does not save this case either. [...] He claims that he prudently filed a new case because the Court erred in dismissing Arpaio I with prejudice. But plaintiff had at least two procedurally sound options to challenge the Court’s ruling: either file a timely appeal or a motion to reconsider the Court’s judgment. Plaintiff opted to file a new case instead—a decision that runs contrary to case law.

A footnote points out Sheriff Arpaio thought he should be able to bypass the appeal process for political reasons -- something I'm sure his lawyer believes to be a legitimate reason for breaking the rules.

Plaintiff admits that he did not appeal the Court’s ruling in Arpaio I because the D.C. Circuit is “a very liberal forum” that is “likely not favorably disposed towards Plaintiff Sheriff Arpaio[.]” He also states that an appeal would have “been costly and delayed adjudication on the merits.” Plaintiff’s status as a public figure (“America’s Toughest Sheriff”) does not grant him special privileges—he cannot circumvent the normal appeals process because of alleged philosophical disagreements with D.C. Circuit judges.

Unfortunately, the court isn't willing to sanction Arpaio and his legal rep for wasting government resources, as well as those of the defendants forced to again defend themselves from allegations this court had already dismissed with prejudice.

Although the Court agrees with the HuffPost defendants that this case is frivolous, plaintiff’s decision to initiate Arpaio II is not as egregious as the plaintiffs’ actions in Reynolds and McLaughlin. The Court is not convinced that plaintiff filed this case for an improper purpose. Rather, the filing of this case seems to be the result of a legal miscalculation, which the Court corrects today by dismissing the case. Accordingly, the Court will deny the HuffPost defendants’ motion for sanctions.

If refiling an identical suit after a dismissal with prejudice isn't sanctionable, then nearly nothing is. This is the DC court's inadvertent argument for a federal anti-SLAPP law. If Klayman and Arpaio had been forced to pay the legal fees of everyone they sued, they wouldn't have filed a pretty much identical lawsuit after having been handed a loss the first time around.

Filed Under: 1st amendment, defamation, free speech, joe apraio, larry klayman, vexatious lawsuits