Trump Campaign Files Laughably Stupid SLAPP Suit Over A NY Times Opinion Piece

from the not-how-any-of-this-works dept

Welp, Donald Trump promised to "open up libel laws" back when he was first running for President, and his campaign has now decided to test out some moronic theory of defamation in suing the NY Times over an opinion piece. Just to be clear upfront: the lawsuit is bad. It will not succeed and appears to have no intent to succeed. Instead, it appears to be almost entirely performative -- including the kind of text you'd normally see on a political website, rather than in a lawsuit filed by a serious lawyer. But, hey, this one is filed by Charles Harder, who has a bit of a history of filing such lawsuits (including against me!).

Everything about this lawsuit is silly. First, it's suing over an opinion piece published by the NY Times in March of 2019 by Max Frankel. Just the fact that it's an opinion piece (opinions are not defamatory) should give you a sense of where this is going. The article itself, entitled "The Real Trump-Russia Quid Pro Quo" makes a pretty banal observation: that whether or not there was any direct "collusion" between the Trump campaign and the Russian government, it doesn't matter if both sides expected certain outcomes (i.e., if Trump's campaign expected the Russians to help get him elected, and if the Russian's expected that Trump would favor pro-Russia policies -- then there would be no need for actual direct communication between the two). Whether or not you think that's an accurate summation of what happened, it's certainly an understandable opinion for one to hold.

But, Trump and Harder try to argue that this opinion is not true. But everything about the argument made in the lawsuit is silly.

The Defamatory Article does not allege or refer to any proof of its claims of a “quid pro quo” or “deal” between the Campaign and Russia. Rather, the Defamatory Article selectively refers to previously-reported contacts between a Russian lawyer and persons connected with the Campaign. The Defamatory Article, however, insinuates that these contacts must have resulted in a quid pro quo or a deal, and the Defamatory Article does not acknowledge that, in fact, there had been extensive reporting, including in The Times, that the meetings and contacts that the Defamatory Article refers to did not result in any quid pro quo or deal between the Campaign and Russia, or anyone connected with either of them.

But, if you read the actual Times piece (which is quite short), it doesn't allege any actual deal. Indeed, it says right up front that there didn't need to be a deal. Literally the 1st paragraph of Frankel's piece lays out the lack of any need for an explicit quid pro quo, highlighting that merely having everyone know what to expect is more than enough.

Collusion — or a lack of it — turns out to have been the rhetorical trap that ensnared President Trump’s pursuers. There was no need for detailed electoral collusion between the Trump campaign and Vladimir Putin’s oligarchy because they had an overarching deal: the quid of help in the campaign against Hillary Clinton for the quo of a new pro-Russian foreign policy, starting with relief from the Obama administration’s burdensome economic sanctions. The Trumpites knew about the quid and held out the prospect of the quo.

That's not insinuating a deal. It's doing the opposite -- saying that a deal wasn't needed.

But the lawsuit assumes an entirely different interpretation. Even worse, its "proof" that the NY Times must know this reporting is false is the Mueller report that came out three weeks after the article was published. How was the NY Times supposed to know the details of a classified report nearly a month early in an opinion piece? That is left as a mystery for the ages. The Times piece was published on March 27th. As the filing admits, the Mueller report wasn't released until April 18th.

The Times’ story is false. The falsity of the story has been confirmed by Special Counsel Robert Mueller’s Report on the Investigation into Russian Interference in the 2016 Presidential Election released on or about April 18, 2019 (the “Mueller Report”), and many other published sources, that there was no conspiracy between the Campaign and Russia in connection with the 2016 United States Presidential Election, or otherwise. Among other things, there was no “deal,” and no “quid pro quo,” between the Campaign or anyone affiliated with it, and Vladimir Putin or the Russian government.

Indeed, Harder tries to argue that the reason the NY Times put this piece out prior to the Mueller report was that it somehow knew the Mueller report would prove the article wrong. Which, of course, it did not. The whole case seems to be based on Harder and/or the Trump campaign misreading the Frankel article.

There's also a lot of garbage in the filing that no serious lawyer would put into a filing, unless it was to appeal to a political base, rather than a judge.

It is not entirely surprising that The Times would publish such a blatant false attack against the Campaign. There is extensive evidence that The Times is extremely biased against the Campaign, and against Republicans in general. This evidence includes, among other things, the fact that The Times has endorsed the Democrat in every United States presidential election of the past sixty (60) years. Also, Max Frankel, the author of the Defamatory Article, described himself in an interview as “a Democrat with a vengeance.”

The case has been filed in NY state court, and as Harder well knows, New York has a very limited anti-SLAPP law, meaning that it is unlikely to apply.

Of course, I find it depressingly amusing that this comes the same month that Harder was in court in California on behalf of Donald Trump supporting broad anti-SLAPP laws in a case in which Harder argued that "a defamation standard that turns typical political rhetoric into actionable defamation would chill expression that is central to the First Amendment and political speech."

The lawsuit is garbage and hopefully the NY Times gets it quickly tossed out, but I guess this means that Harder and Trump's support for anti-SLAPP laws that protect against these kinds of frivolous lawsuits won't extend to New York or to a (necessary) federal anti-SLAPP law.

Filed Under: anti-slapp, charles harder, defamation, donald trump, max frankel, new york, opinion, quid pro quo, russia, slapp suit
Companies: ny times

Rep. Cicilline Wants To Remove Section 230 Protections For Platforms That Host 'Demonstrably False' Political Ads

from the the-1st-amendment-callling dept

What is it with politicians (and other commentators) who keep confusing the 1st Amendment with Section 230? The latest is Rep. David Cicilline, who wants to remove Section 230 protections from internet platforms that host "demonstrably false" political ads:

Rep. David Cicilline is drafting legislation to take away a broad tech liability protection for online platforms that knowingly publish “demonstrably false” political ads, he says at a National Association of Broadcasters’ event.

This has been an issue a bunch of folks have been raising of late. Elizabeth Warren and Nancy Pelosi have both expressed anger that Facebook has chosen not to fact check political videos. However, as we've noted repeatedly, there are all sorts of problems with a proposal like this.

First, and perhaps biggest, is the 1st Amendment. Contrary to what many people seem to believe, many false statements are still protected under the 1st Amendment -- and while internet platforms have their own rights to take down or leave up what they want, having the government step in and create an effective mandate to take down "false" information will almost certainly violate the 1st Amendment, as it's not a content-neutral regulation. As the Supreme Court noted in United States v. Alvarez, plenty of "demonstrably false" information is still Constitutionally protected:

In light of the substantial and expansive threats to free expression posed by content-based restrictions, this Court has rejected as “startling and dangerous” a “free-floating test for First Amendment coverage . . . [based on] an ad hoc balancing of relative social costs and benefits.”... Instead, content-based restrictions on speech have been permitted, as a general matter, only when confined to the few “‘historic and traditional categories [of expression] long familiar to the bar,’” ...These categories have a historical foundation in the Court’s free speech tradition. The vast realm of free speech and thought always protected in our tradition can still thrive, and even be furthered, by adherence to those categories and rules.

Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee.

Later in that ruling, Justice Kennedy notes:

Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.

And thus, once again, it appears that a politician is confusing the power of the 1st Amendment, and assuming that it is coming from Section 230. This is incorrect.

The second issue with such a law is that while "demonstrably false" seems like an easy classification, it's not at all easy in practice. As we've discussed many, many times in the past, content moderation at scale is impossible to do well, and it only seems easy until you actually have to do it. Case in point: just last week there was an uproar and controversy over an edited video that the Mike Bloomberg campaign posted to social media. The video shows Bloomberg on the debate stage last week, asking if any of the other candidates on stage had started a business -- and then places clips of each of the other candidates looking around awkwardly, with an overlay of cricket sounds. The video is obviously meant to imply that this extended silence after Bloomberg asked the question is what actually happened on stage -- though it is not. The clips were obviously taken from other moments in the debate.

Is that "demonstrably false"? Well, that depends on your perspective. It's absolutely misleading. But, it could also be seen as a joke or satire or making a point. Indeed, in the link above, Twitter told reporters that the video would violate its policies as "manipulated media," but Facebook says it would not, since its policies do "not extend to content that is parody or satire, or video that has been edited solely to omit or change the order of words." And, while you may agree or disagree with either platforms' decision on this, how would Cicilline's proposal handle such an issue? If put in place, it's likely that all platforms would then seek to remove this video, out of fear of it opening up the potential for massive liability.

The courts are extremely loathe to get involved in political speech -- which, quite frequently, involves misrepresentation, false, or misleading statements by candidates about each other. Trying to put an extra burden on social media platforms by potentially removing Section 230 protections for not magically being able to determine "truth" is not only unconstitutional, but likely putting internet platforms in an impossible position.

Filed Under: 1st amendment, david cicilline, demonstrably false, intermediary liability, liability, political ads, political speech, section 230

As Court Finally Dumps One Of Devin Nunes' Ridiculous Lawsuits (With A Warning About Sanctions), Nunes Promises To File Another

from the never-ending dept

Back in September, we wrote about Devin Nunes dropping the only lawsuit he'd filed in California against some of his critics, only to immediately file an absolute laugher of a lawsuit against Fusion GPS and Glenn Simpson, alleging racketeering (RICO) claims. Nunes claimed -- ridiculously -- that he'd obtained the info he needed from the California lawsuit (where he might have faced anti-SLAPP claims) in order to file this new lawsuit. As we noted at the time, Ken "Popehat" White's usual warning of IT'S NOT RICO, DAMMIT totally applied to this new case. And, contrary to one of our more amusing commenters who insisted that this case was solid, Judge Liam O'Grady appears to have made quick work of it, dismissing it as nonsense with an incredibly short and to the point ruling (Politico first broke the news):

As presently pled, the Amended Complaint includes many rote statements of law and conclusory allegations which fall short of satisfying the pleading standard per Bell Atl. Corp. v Twombly... Thus, the instant complaint is insufficient to support a substantive ruling on these issues. Accordingly, Defendants' motion to dismiss... are hereby GRANTED.

The Twombly case is an important one in dismissing cases like this, more or less saying you can't just throw a bunch of speculation at the wall and allege a conspiracy -- you need to allege actual facts. Unsurprisingly, Devin Nunes' busy lawyer, Steven Biss, failed to do so in this lawsuit that always appeared to be about performing for Nunes and Trump supporters, rather than bringing any sort of legitimate legal claim.

The judge did make the dismissal without prejudice, meaning Biss/Nunes can refile, but Judge O'Grady did warn them that doing so without more substance may lead to Biss facing Section 11 sanctions:

Mindful of the latitude provided in Federal Rule of Civil Procedure 15, Plaintiff shall have thirty days from the date of this order to file a second amended complaint if he can do so pursuant to Rule 11.

I'm not sure Biss will take the hint.

In the meantime, this did not slow Nunes down from promising to sue again. The very same evening that he lost this lawsuit, Nunes went on Fox News (of course) with promises to sue the Washington Post for claiming in a story that Nunes shared with President Trump the details of a classified briefing by intelligence official Shelby Pierson to the House Intelligence Committee. As you may have heard elsewhere (if you haven't been living under a rock), Pierson apparently briefed the Committee to say that Russia was once again seeking to interfere in the US Presidential election, and that it hoped to help Trump win a second term. This briefing allegedly resulted in Trump cleaning house with a bunch of intelligence officials, and inserting friends instead.

“I don’t know what planet the Washington Post is on," Nunes said. "But they’ll have an opportunity in federal court in the next couple weeks to explain who their sources are, because I’m going to have to take them to court because I didn't go to the White House. I didn't talk to President Trump, Harris. So, this is the same garbage."

Remember back when Rep. Nunes claimed he was a free speech supporter?

Filed Under: anti-slapp, devin nunes, glenn simpson, liam o'grady, rico, slapp, slapp suits, steven biss
Companies: fusion gps, washington post

Ron Wyden: Modifying Section 230 Will Give More Censorship Power To Trump; And Lock In Facebook's Dominance

from the exactly dept

We've already pointed out that Facebook's latest moves to say it's okay to strip away Section 230's protections are all about giving Facebook more power and harming competitors -- and now the author of Section 230, Senator Ron Wyden, has put out quite an op-ed in the Washington Post explaining just how much damage would be done in chipping away at Section 230. In particular, he highlights two key reasons why we shouldn't do it: (1) It would lock in the most powerful companies like Facebook and Google (even as misguided critics seem to think taking away Section 230 protections will harm them), and (2) It will enable the Trump administration to increase online censorship of marginalized voices.

On the first point, the argument is the one I made regarding Facebook's new stance, though Wyden expresses it succinctly:

Some have argued that repealing Section 230 would punish Facebook and Google for their failures. That’s simply not true. The biggest tech companies have enough lawyers and lobbyists to survive virtually any regulation Congress can concoct. It’s the start-ups seeking to displace Big Tech that would be hammered by the constant threat of lawsuits.

He notes, as we have in the past, that most of the lobbying to gut 230 is being lead by industries that failed to adapt to the internet, and are now using 230 as a hammer to try to stay relevant.

The argument about speech is equally as important:

I’m certain this administration would use power to regulate speech to punish its enemies and protect its allies. It would threaten Facebook or YouTube for taking down white supremacist content. It would label Black Lives Matter activists as purveyors of hate.

Again, this is exactly what we've warned about. Section 230 has created spaces online for the most marginalized to speak out -- and they will be the first to be silenced. Indeed, that's exactly what we've already seen post SESTA. The law that was passed in the name of "protecting sex trafficking victims" has actually put sex workers at risk. Wyden points out that the law appears to have done the opposite of what its backers promised:

Backpage was shut down before SESTA even went into effect. And sex workers have been driven to the dark Web or the streets, where sex trafficking has increased dramatically. The most vulnerable group bore the brunt of this law.

And the same is likely for any other attempt to attack 230 as well.

What's really incredible in all of this is how little those looking to modify or remove 230 seem to even understand 230. They seem to blame all sorts of societal problems on 230, even though all 230 has done is allow people to express themselves. And from there, the complaints against 230 are often contradictory. Some are worried that two much speech is silenced through moderation, while others complain that not enough speech is silenced. But neither is a 230 problem. They are all just representations of the impossibility of pleasing everyone when it comes to moderation policies. But taking away 230 or even modifying it won't change any of that. All it will do is lead to much greater censorship, and much more power for the biggest internet companies.

As is often the case, it would be nice if others in Congress actually listened to Ron Wyden on this -- as he's been right since the very beginning, and every time people ignore him, they end up looking foolish. Unfortunately, I fear that they will end up looking foolish yet again.

Filed Under: censorship, competition, free speech, ron wyden, section 230
Companies: facebook

When You Set Out To Block Misinformation, You Can Wind Up Blocking A Hero Like Li Wenliang

from the be-careful-what-you-wish-for dept

Combating disinformation and misinformation online is an admirable goal. However, we often criticize overly broad attempts to do so, noting that they could lead to censorship of important, accurate, and useful information. Here's a somewhat tragic case study of that in action. You may have heard late last week about anger in China over the death of doctor Li Wenliang, a physician who had tried to warn people about the new coronavirus well before most others had realized how dangerous it was. Dr. Li eventually caught the virus himself and passed away, sparking tremendous anger online:

Since late Thursday, people from different backgrounds, including government officials, prominent business figures and ordinary online users, have posted numerous messages expressing their grief for the doctor, who contracted the new coronavirus, and their anger over his silencing by the police after he shared his knowledge about the virus. It has prompted a nationwide soul-searching under an authoritarian government that allows for little dissent.

“I haven’t seen my WeChat timeline filled with so much forlornness and outrage,” Xu Danei, founder of a social media analytics company, wrote on the messaging platform WeChat.

The "silencing," if you haven't heard the details, was that the police told him he was spreading misinformation online. Inkstone News (a subsidiary of the South China Morning Post) has a translated letter that the police gave to Dr. Li telling him to stop spreading "untruthful information online." Dr. Li responded to the notifications saying he would stop his "illegal behavior" and that he "understood" that if he continued he would be "punished under the law."

According to the law, this letter serves as a warning and a reprimand over your illegally spreading untruthful information online. Your action has severely disrupted the order of society. Your action has breached the law, violating the relevant rules in "Law of the People's Republic of China on Penalties for Administration of Public Security." It is an illegal act!

The law enforcement agency wants you to cooperate, listen to the police, and stop your illegal behavior. Can you do that?

Answer: I can

We want you to calm down and reflect on your actions, as well as solemnly warn you: If you insist on your views, refuse to repent and continue the illegal activity, you will be punished by the law. Do you understand?

Answer: I understand

Even the Chinese government appears to possibly recognize that this whole setup was a problem:

The outpouring of messages online from sad, infuriated and grieving people was too much for the censors. The government even seemed to recognize the magnitude of the country’s emotion, dispatching a team to investigate what it called “issues related to Dr. Li Wenliang that were reported by the public,” though without specifics.

For many people in China, the doctor’s death shook loose pent-up anger and frustration at how the government mishandled the situation by not sharing information earlier and by silencing whistle-blowers. It also seemed, to those online, that the government hadn’t learned lessons from previous crises, continuing to quash online criticism and investigative reports that provide vital information.

Now, some might respond to this that stomping out disinformation online is quite different than Chinese government suppression of information. But no one can come up with a principled explanation of how this is actually different in practice. Stanford's Daphne Keller, who studies exactly this stuff makes the point pretty concisely:

Be careful what you wish for.

Filed Under: china, content moderation, content moderation at scale, coronavirus, disinformation, li wenliang, misinformation

Brazilian Court Refuses To Move Forward With Bogus Charges Against Glenn Greenwald 'For Now'

from the temporary-relief dept

We've already discussed how the "cybercrime" charges against Glenn Greenwald in Brazil for his reporting activities were a clear attack on a free press -- especially given that a court and the Federal Police had already said he didn't do anything wrong. In a bit of a temporary reprieve, a judge has now refused to move forward with the charges against Greenwald, but that doesn't mean things won't change down the road:

In a decision announced Thursday, Judge Ricardo Augusto Soares Leite ruled that Greenwald’s prosecution would not go forward, but only on account of a previous finding by the Brazilian Supreme Court that The Intercept’s reporting on Operation Car Wash had not transgressed any legal boundaries. In the absence of the injunction issued by a Supreme Court minister that prohibited investigations into Greenwald related to this case, Leite said he would have let the charges against Greenwald move forward. The judge also said that, if the Supreme Court injunction were to be overturned, he would be open to charging Greenwald.

“I decline, for now, to receive the complaint against GLENN GREENWALD, due to the controversy over the extent of the injunction granted by Minister Gilmar Mendes in ADPF nº 601, on 08/24/2019,” Leite wrote, referring to the ruling by Mendes, a Supreme Court minister.

This is, at least, a minor victory, but the situation still remains hugely problematic, and creates a significant chilling effect for journalists, showing just how far the Brazilian government will go to intimidate and silence journalists exposing wrongdoing by the government. Even the fact that the judge is making it clear that without the earlier Supreme Court injunction he'd move forward should be quite chilling in its own right (especially when other journalist are unlikely to have a similar injunction sitting in their pocket).

Make no mistake about it: the Bolsonairo government is deliberately attempting to intimidate the press to push back on investigative reporting into alleged corruption.

Filed Under: brazil, chilling effects, glenn greenwald, jair bolsonaro, press freedoms

Federal Court Ignores Journalist Privilege For Reporting On Court Documents; Allows Bullshit Defamation Suit To Proceed

from the your-decision-is-bad-and-you-should-feel-bad dept

An unbelievably bad decision has been handed down by a federal court in Texas that blows past everything we know (and have long known) about the First Amendment to allow a very questionable defamation lawsuit to proceed. (h/t Andrew Fleischman)

Conspiracy theorist/Fox News commentator Ed Butowsky -- represented by Devin Nunes' lawyer Steven Biss -- claimed he was defamed by an NPR article discussing a lawsuit filed by former Fox commentator Rod Wheeler, which alleged the broadcaster and Butowsky worked together to whip up some alternative facts about the death of Democratic Party staffer Seth Rich.

Rich's death has been catnip for conspiracy theorists and Butowsky apparently bit. He allegedly helped propel a conspiracy theory into Fox News' broadcasts, supposedly in an effort to draw attention away from the investigation into the Trump campaign's ties to the Russian government.

The NPR article mentions (several times!) that everything its reporting on was drawn from Wheeler's lawsuit. It made no difference to Butowsky and Biss, who proceeded to sue the public broadcaster for defamation. It should have made a difference to the federal judge. But it didn't.

Despite years of precedent affirming journalists' right to report on allegations made in lawsuits -- whose underlying documents can (for the most part) be viewed by anyone -- the Texas court decided decades of precedent mean nothing.

These are the allegations (tied to defamation, civil conspiracy, and business disparagement claims), as recounted briefly by the court. From the decision [PDF]:

Plaintiff claims Folkenflik knowingly and intentionally conspired with Douglas H. Wigdor (“Wigdor”) to promote, publish, and republish a demonstrably false and defamatory narrative about Plaintiff.

David Folkenflik was the author of the post. Douglas Wigdor represented Rod Wheeler in his lawsuit. Where the conspiracy comes from, no one but Butowsky knows. But Butowsky knows conspiracies, so here were are.

Folkenflik did not fabricate anything in his article. In fact, he pointed out frequently everything being reported was drawn from Wheeler's lawsuit. Here's every time Folkenflik indicated the content of his reporting was drawn from a publicly-filed lawsuit:

The Fox News Channel and a wealthy supporter of President Trump worked in concert under the watchful eye of the White House to concoct a story about the death of a young Democratic National Committee aide, according to a lawsuit filed Tuesday.

[...]

The explosive claim is part of a lawsuit filed against Fox News…

[...]

His suit charges that a Fox News reporter created quotations…

[...]

The lawsuit focuses particular attention on the role of the Trump supporter, Ed Butowsky, in weaving the story.

[...]

The first page of the lawsuit quotes a voicemail and text from Butowsky…

[...]

In the lawsuit, the private investigator sets out a different version of events…

[...]

According to the lawsuit, Trump press secretary Sean Spicer…

[...]

In the suit, Wheeler alleges that Butowsky was using the White House references to pressure him.

[...]

Wheeler's lawsuit alleges that Butowsky's generosity is clearly politically motivated.

[...]

According to the account in the suit, Butowsky cautions Wheeler before they set out to meet the Riches…

[...]

According to the transcripts in the lawsuit…

[...]

According to the lawsuit, Zimmerman promises to have those lines removed…

[...]

That same day, the suit recounts, Zimmerman writes a letter to Seth Rich's father…

If it feels like I'm beating you over the head, I'm sorry. I'm only beating you because I can't (legally or physically) beat Judge Amos L. Mazzant over the head for issuing 37 pages of dissembling bullshit that allows this stupid lawsuit to proceed.

Among the things we all should know about defamation lawsuits, these two are key:

1. You cannot sue someone over statements they made in court. This includes court filings. Attorney Steven Biss is at least smart enough to know he can't sue Wheeler for filing his own defamation lawsuit, which includes everything NPR reported.

2. You cannot sue a journalistic entity for reporting on the contents of a lawsuit. As long as the journalist makes it clear they're reporting on allegations contained in a lawsuit, they cannot be sued for defamation.

That's the way it should be. But Judge Mazzant says this truism just isn't true, not as long as he's running the proceedings.

Here's what Mazzant says, referencing a state supreme court decision that found in favor of another entity reporting on the contents of lawsuit. [All emphasis mine.]

[T]he published statements in this case are different from the News’ articles in Hall II. In Hall II, the Texas Supreme Court noted the statements made by the News “fairly and accurately reported on the accusations, and qualified all of it with pervasive sourcing language.”

It then gives several examples of where the News added language about the source of the contents of its article -- namely, the lawsuit it was reporting on.

Mazzant then looks at NPR's reporting -- the stuff I quoted above -- and decides Folkenflik did not do this enough to warrant the protections of journalistic privilege.

Here, the Court is not convinced Defendants qualified their statements with “pervasive sourcing language.” The Reports here do not state, “according to court documents,” as the News qualified its statements in Hall II.

WHAT THE ACTUAL FUCK.

I guess Mazzant doesn't consider the words "lawsuit" or "suit" to imply the same thing as "court documents." Jeeeeezus.

And he goes on:

Additionally, even if the statements are considered a true report of the Wheeler complaint, as Defendants argue, the organization of the comments combined with the speculative commentary imply wrongdoing.

"Speculative commentary?" Please indicate on the article where the NPR reporting offended you, Judge Mazzant. All the article did was tie the allegations to the timeline, suggesting some events triggered other events. This "speculation" was buttressed by comments from individuals in the timeline, which should have been more than enough to move this past mere speculation and into the sort of reporting we should expect from anyone reporting on events like these.

Judge Mazzant has created a chilling effect by suggesting news outlets should wait until lawsuits are completely resolved before reporting on them. This doesn't make anything better for the public and encourages similar baseless lawsuits from individuals who have the time and money to file lawsuits almost solely intended to wound their targets, rather than redress actual grievances. This is a terrible decision and NPR will certainly appeal it. But it will have to spend its own money to overturn an obviously incorrect decision and that alone will probably make Butowsky and Biss very happy.

Filed Under: 1st amendment, court documents, david folkenflik, defamation, douglas wigdor, ed butowsky, free speech, journalism, rod wheeler, seth rich, steven biss, texas
Companies: npr

Pigs Fly As Charles Harder And Donald Trump Support Anti-SLAPP Laws (When They Protect Trump, Of Course)

from the say-what-now dept

As you probably recall, Donald Trump has repeatedly talked about "opening up our libel laws" and making it easier to sue people for defamation "and win lots of money." As we pointed out when he first raised this issue, while Trump cannot directly impact libel laws (which are state laws, not federal, and are bounded by the 1st Amendment, which he cannot change), he can have an impact in many other ways -- from appointing judges to blocking any attempt at a federal anti-SLAPP law that would protect people from bogus defamation lawsuits.

So, back in the fall of 2018, we found it mildly amusing to see Trump himself using an anti-SLAPP law to successfully defeat a (highly questionable) defamation lawsuit from Stormy Daniels. Even more surprising was that Trump was represented in this case by lawyer Charles Harder, who has built up quite a reputation for suing media companies on behalf of the rich and powerful. As many people know, he was the lawyer in the case against us at Techdirt, in which he argued against the application of California's anti-SLAPP law to get us out of the lawsuit and to award us legal fees. An old Hollywood Reporter profile of Harder described how he, too, hoped to change the standards for defamation and make it easier to sue:

"I think the actual malice standard is too stringent," says Harder, perhaps previewing how a Donald Trump administration might approach the media and the laws governing it. "If you look at Justice [Byron] White's opinion in a Supreme Court case 20 years after New York Times v. Sullivan, he wrote a dissent and said we all made a mistake, that it has gotten to a point where it has created huge problems for a public figure who is defamed to do anything about it."

That profile also noted that Harder was well aware of the different anti-SLAPP laws in different jurisdictions:

In his offices, Harder keeps charts mapping the differences in libel and privacy laws throughout the country. He also has become a pro on where to strategically file cases. The Hogan suit took place in Florida, where a jury might be friendlier to a local celebrity. The Heard case was in Nevada before it was dropped. Melania's lawsuit is proceeding in Maryland, which some legal experts speculate is because of its plaintiff-friendly rules that won't require her to pay the Daily Mail's legal bill if she loses.

In the case against us, Harder argued that the use of words like "liar" and "fake" constituted defamation. However, as Trump's lawyer defending him from Daniels' claim of defamation, Harder noted:

It does not matter that the President used strident language (“nonexistent,” “con job,” and “fake news”) in expressing his opinion doubting the veracity of Plaintiff’s allegation rather than using more genteel terminology. Rhetorical hyperbole is not actionable as defamation.... Courts throughout the United States have routinely held that terminology similar to that used by the President is constitutionally protected opinion and non-actionable.

[....]

Indeed, since the founding of our republic, politicians have often expressed their opinions by branding their opponents as “liars.” Doing so does not subject every such politician to a defamation claim. President Trump himself has expressed his opinions regarding multiple adversaries, sometimes referring to his opponents by colorful names such as “Lyin’ Ted” and “Crooked Hillary.” A defamation standard that turns typical political rhetoric into actionable defamation would chill expression that is central to the First Amendment and political speech.

And... in that instance, I completely agree with Harder and Trump, even though it would seem to contradict his argument in the case against us. But, hey, I guess zealous defense of your clients doesn't always require consistent arguments.

Along those lines, the case between Daniels and Trump continues, and Harder is now in the position of singing the praises of California and Texas's anti-SLAPP laws, because that's what helped Trump succeed against Daniels.

A key issue that has come up in the Daniels/Trump suit is one that various courts have differed on over the years: whether or not state anti-SLAPP laws can be used in federal courts. The various circuits are split on this issue, with some arguing that anti-SLAPP laws are procedural, and state laws cannot regulate federal rules of civil procedure, while others ague that the law is substantive, and thus can be applied in federal court. What makes things even more tricky is that while the Daniels/Trump suit is taking place in California, the anti-SLAPP law used was the Texas Citizens Participation Act (TCPA). And while the 9th Circuit (which covers California) has said that state anti-SLAPP laws (like California's) are substantive and thus can be used in federal court, just recently the 5th Circuit went the other way, and said that the TCPA is procedural, and thus cannot be applied in federal court. I think this is a bad and problematic ruling, which at the very least shows us the need for a federal anti-SLAPP law.

Either way, this leaves the Daniels case in a weird sort of nowhere land -- and on appeal Harder needs to argue that the TCPA can apply in federal court in California, even if it can't in Texas. And his argument is to point to 9th Circuit precedent regarding California's anti-SLAPP law:

At the hearing (see the video recording here), Harder called Texas' anti-SLAPP statute a "substantive" change (rather than a procedural one), and added it was virtually identical to California's anti-SLAPP statute, which has repeatedly been affirmed by the Ninth Circuit. He then quoted Wardlaw in Makaeff v. Trump University when she wrote, "Through anti-SLAPP laws, the legislatures of Arizona, California, Guam, Hawaii, Nevada, Oregon, and Washington have decided to impose substantive limitations on certain state law actions. Refusing to recognize these limitations in federal court is bad policy. If we ignore how states have limited actions under their own laws, we not only flush away state legislatures’ considered decisions on matters of state law, but we also put the federal courts at risk of being swept away in a rising tide of frivolous state actions that would be filed in our circuit’s federal courts.”

It's pretty incredible to have Harder making that argument, but hey, Charles, welcome to team pro free speech and against frivolous defamation lawsuits. The more, the merrier.

The appeals court panel did point out to Harder that if the case had been brought in Texas federal court, under the recent 5th Circuit ruling, he wouldn't be allowed to use the TCPA, and Harder's response was basically that since the case was filed before that ruling, perhaps the 5th Circuit would have ruled otherwise if it was a different case (or this case) up for review:

"The only reason is, had you brought this case in Texas federal court, you would not have this motion available to you, right?" asked Wardlaw.

"At the time we filed it, the Klocke decision had not come about," answered Harder. "If our case had preceded the other one, perhaps the Fifth Circuit would have been persuaded otherwise. I don't know."

And then, as the Hollywood Reporter notes, Harder defended strong anti-SLAPP laws in federal court, warning that otherwise lawyers might go forum shopping (?!?):

Harder then made the point that without federal court application of anti-SLAPP statutes, plaintiffs would "forum-shop" their suits into such jurisdictions in order to gain advantage. Said Harder, "This court correctly recognized that if the legislature wants to get rid of SLAPP suits, you apply the SLAPP statutes everywhere they can be applied including in federal courts. Klocke wasn't looking at forum shopping. I think it missed an important point."

Remember, this is the same lawyer who keeps charts of different forum rules and has a history of filing his lawsuit strategically -- frequently in places with no or weak anti-SLAPP laws.

Anyway, as I noted when Harder/Trump initially won this ruling, I think it's the right ruling and I'm actually happy to see that Harder and Trump find themselves in a position of supporting free speech and good, effective, anti-SLAPP laws -- though I'm skeptical if they believe it applies beyond situations in which they, themselves, have immediate benefit.

Filed Under: anti-slapp, california, charles harder, defamation, donald trump, federal anti-slapp, forum shopping, jurisdiction, stephanie clifford, stormy daniels, tcpa, texas

Appeals Court Tells Serial Litigant Runescape Didn't Violate His Constitutional Rights By Muting His Account

from the need-an-actual-grievance-if-you-want-any-of-that-sweet-redress dept

Last summer, a federal court tossed a lawsuit by Amro Elansari brought against the makers of Runescape for muting his account. Elansari seemingly has nothing better to do than file lawsuits -- none of which appear have any merit. As a taster of Elansari's serial litigation, here's the opening of the Third Circuit Appeals Court's rejection of his proposed class action against Tinder.

In July 2019, Elansari filed a pro se complaint in the District Court against Tinder, Inc. He indicated that the events underlying the complaint arose over the course of nine months (January through July of 2018, and April and May of 2019). He alleged, without more, that Tinder’s dating application “sends you notifications saying 7 people like you[,] subscribe $15 [per month] to see who [they are.] [Screen shots show that] [t]hey’re all fake 3000 miles away[.]” (Compl. 3.) Elansari wrote “class action” at the bottom of one of the complaint’s pages, (id.), and he sought compensatory and punitive damages.

It takes more than a handwritten "class action" to move a suit like this forward. It also takes an actual member of the bar to pursue a class action over Tinder doing Tinder stuff, which Elansari is not. Elansari does not appear to have even a layman's grasp of the law either, which prompted this rejection of his Runescape lawsuit:

[Elansari] cannot state a constitutional claim against a private company precluding him [from] amending to assert a federal question.

Also in the pro se mix was the fact that Jagex, the company behind Runescape, is located in the UK, which made his Constitutional violation claims even more ridiculous.

Elansari also appears to have enough free time to appeal every federal court rejection, which means the Third Circuit Court of Appeals gets to swat away this lawsuit as well. (h/t Polygon)

Elansari argued his muting by Runescape harmed him immeasurably (by which I mean he did not specify the dollar amount of the perceived damages). He claimed his position as a "streamer + 2000 hours + invested" entitled him to some federal relief due to all the due process he lost when Runescape refused to unmute him.

The Appeals Court is no more welcoming of Elansari's lawsuit than the lower court. If Elansari wants to argue about due process, he needs to find something that actually involves due process. From the decision [PDF]:

On appeal, Elansari first argues that the District Court should have adjudicated, and granted relief on, a Fourteenth Amendment claim. See Appellant’s Br. at p. 6-7. However, state action is a prerequisite for bringing a Fourteenth Amendment claim, and Elansari has made no allegations indicating that any named defendant is a state actor.

His other argument -- that he was discriminated against by Runescape moderators -- is no better. In fact, it's almost Klayman-esque in its absurdity.

Next, citing Title II of the Civil Rights Act of 1964, Elansari maintains that the District Court should have identified and considered a claim of public accommodations discrimination in Elansari’s complaint. See Appellant’s Br. at p. 4, 7, 9. Elansari insists that defendant Jagex should be liable for “unequal treatment” because Elansari’s account was “muted . . . compared to all other players who are not muted.”

I guess "moderated" is the new protected class. Let's see if some alt-right figurehead can't take this inherently-rejectable claim and run with it. Anyway, this is an obvious non-starter. Federal law doesn't consider "muted gamer" a protected class.

Even generously construing Elansari’s complaint to raise a claim of public accommodations discrimination and assuming that Elansari can bring such a claim in this context, at no point either in the District Court or on appeal has Elansari alleged losing access to Jagex’s online game due to discrimination based on any of the grounds protected by Title II.

To add up both rejections of Elansari's lawsuit is to bring tears to the eyes of people who think suing hard enough will get their permabans lifted at various social media outlets.

First, private companies cannot violate Constitutional rights. Second, simply being moderated against isn't the basis for a discrimination lawsuit. The plaintiff needs to show they were banned/muted because of who they are, not because of what they've done. And protected classes don't include "conservative," "liberal," or, in this case, "streamer + 2000 hours + invested." Bans and mutings may feel oppressive, but that's subjective, not an objective basis for lawsuit.

Filed Under: amro elansari, cda 230, moderation, muting, runescape, section 230, trolls

Home Owners Association Threatens Residents With Lawsuit For Online Criticism

from the not-how-any-of-this-works dept

The fights involving Home Owners Associations (HOAs) are so legendary and stereotyped that they've even been a minor plot point in Seinfeld. The general stereotype is that HOAs involve insane political power struggles, significantly out of proportion to the actual issues at hand. It is often an example of Sayre's law, in that the stakes are so little, yet the disputes are much more vicious and out of control than elsewhere. I'm thankful I don't live in a place with an HOA, but for many years I did (as a renter, not an owner) and remember receiving a long (7 pages typed, I believe) letter from an owner complaining about HOA battles and claiming that he was afraid to go to the next HOA meeting for fear of being shot by another HOA member, and going on and on about threats of violence.

In other words, petty squabbles in HOAs all too frequently get blown way out of proportion, and people take them way too seriously. So, it's perhaps of little surprise that an HOA in Gilbert, Arizona, is taking things so far as to violate the 1st Amendment, and is threatening to sue residents over social media posts. Perhaps not surprisingly, the community in question has the type of name that would fit in well with Seinfeld's Del Boca Vista. In this case, it's Val Vista Lakes (VVL).

Following elections, the board proposed a social media policy restricting opinions about the board on Facebook. It was vehemently opposed by the community and quickly tabled.

Then a letter from a law office representing the board showed up at Nardecchia's home.

"They are threatening if I don't remove any content that frames certain members of the board in a negative light," said Nardecchia.

Threatening her with $250 daily fines as well as taking away her access to community amenities.

The letter was sent from a law firm paid for by HOA fees to at least eleven residents.

Other HOA members received similar letters:

The letter demands posts that are disparaging, speculative or defaming to board members be removed immediately. It also cites past incidents including posts that said that board members altered or manipulated votes in annual elections and that board members purposefully retaliated against members in the association. Opinions that now come with consequences.

"I really do believe in that freedom of speech. We are a diverse community with diverse opinions and views, and we should be able to share that and have a discussion about that." said Nardecchia.

That last line of the first paragraph above is quite incredible: "opinions that now come with consequences." While it's not quoted, it sounds like something that may have been said in the letter, as it's a line we all too frequently hear from those filing or supporting bogus SLAPP-style lawsuits over free speech, that "speech has consequences." Of course, they are misunderstanding what that means. Speech has social consequences in terms of how others in the community view you, and on your reputation and trustworthiness. What opinionated speech cannot have under the 1st Amendment of the constitution, is legal consequences that chill and intimidate free speech.

The article discussing all of this, from the local ABC affiliate in Arizona, concludes with a fairly understated comment reflecting what actual 1st Amendment lawyers told the news station:

At least two attorneys focused on constitutional law, told ABC15 the board is over stepping their authority and may want to take a closer look at the protection found under the first amendment.

May want to take a look? Uh, yeah. You can't sue people for stating opinions about you on social media. That's kind of a core aspect of the 1st Amendment.

Filed Under: 1st amendment, free speech, hoa, social media, threats, val vista lakes