Trump's Favorite Law Firm Loses Massive RICO SLAPP Suit Against Greenpeace, But Has Another One Already Going

from the the-infamous-rico-slapp dept

We talk quite a bit about the problem of so-called SLAPP lawsuits around here. SLAPP standing for "Strategic Lawsuit Against Public Participation." It's a terrible acronym, but what it really means is generally the rich and powerful filing bogus lawsuits against the less powerful for the purpose of harassing and silencing them. That is, even if the plaintiffs recognize that they will lose, it's worth it to them to file the lawsuit anyway, because the process itself can be so destructive to the defendants. This is why anti-SLAPP laws are so powerful, allowing defendants to both get rid of such lawsuits quickly and to get back legal fees, thus minimizing at least some of the damage of SLAPP suits. Now, there are some lawyers who seem to be specializing in filing SLAPP-style lawsuits. One law firm that appears to be building up such a reputation happens to be President Donald Trump's personal law firm, Kasowitz Benson Torres. We've discussed how its founding and managing partner, Marc Kasowitz, had threatened to sue the NY Times over its reporting on women claiming Trump had touched them inappropriately -- a threat he failed to follow through on within the statute of limitations in New York.

However, others at Kasowitz's firm appear to be targeting the environmental movement with SLAPP suits, starting with Greenpeace. And, they've added a funky little twist to the traditional SLAPP suit -- the RICO SLAPP. Back in May of 2016, a company named Resolute Forest Products, represented by Kasowitz partner Michael Bowe, filed a massive (124 page) lawsuit against Greenpeace and a few others, claiming that Greenpeace is a fraud. Literally. Here's how the lawsuit opens:

“Greenpeace” is a global fraud. For years, this international network of environmental groups collectively calling themselves “Greenpeace” has fraudulently induced people throughout the United States and the world to donate millions of dollars based on materially false and misleading claims about its purported environmental purpose and its “campaigns” against targeted companies. Maximizing donations, not saving the environment, is Greenpeace’s true objective. Consequently, its campaigns are consistently based on sensational misinformation untethered to facts or science, but crafted instead to induce strong emotions and, thereby, donations. Moreover, virtually all of Greenpeace’s fraudulently induced donations are used to perpetuate the corrupted entity itself and the salaries of its leaders and employees.

It turns out that Resolute Forest Products (a Canadian logging company) is kind of upset that Greenpeace has been campaigning against the company, arguing that it's a "Forest Destroyer." The two organizations go back a ways -- and Greenpeace in the past did retract and apologize an erroneous statement about Resolute a few years back. But the lawsuit goes on at great length to claim that Greenpeace's actions are a form of racketeering that has cost Resolute $100 million in reputational value -- opening up Greenpeace to the potential of a $300 million penalty.

And, yes, here's where I'll point you to Ken "Popehat" White's IT'S NOT RICO, DAMMIT post, where he explains how almost no case is really a RICO (racketeering) case. And it applies to this one as well. While the case was originally filed in Georgia (which has a decent anti-SLAPP law, but one facing some challenges recently), it was later transferred to California, which has a very strong and well-established anti-SLAPP law. And, thus, last week the case was thrown out on anti-SLAPP grounds.

Whether or not you like Greenpeace or its methods is besides the point here. The issue is whether or not a company that is being targeted for protests can file a massive RICO lawsuit against an organization for its protests. And here, the judge said that's not how it works. The judge notes that the basic claims -- on which most of the rest of the claims rely -- of defamation don't pass the sniff test, as there's no actual malice shown (which is required for defamation of a public figure, which the court says Resolute is). It also points out that nowhere did Resolute show that any of the named defendants made "knowingly false statements." That... makes a defamation claim difficult.

The court also isn't impressed with Resolute trying to turn clear statements of opinion into pretend "facts."

In its quest to describe Greenpeace‟s statements as matters of fact instead of opinion, Resolute often takes an overly literal approach to obviously overemphatic speech. For instance, Resolute refers to a Greenpeace campaign that describes Resolute as a Canadian Boreal “Forest Destroyer.” ... Resolute‟s claim depends on construing the word “destroy” to mean “annihilate” or “eliminate completely.” In this vein, Resolute‟s expert witness Peter Reich states, “Resolute has not destroyed, and is not destroying, the boreal forest. Because almost all harvested stands grow back to boreal forest, Defendants‟ claims about Resolute‟s forest "destruction‟ cannot be true.”...

As any reader of Greenpeace's statements will know, these are not the only permissible constructions. The word “destroy” is a perennial instrument of hyperbole. See, e.g., Edward Barsamian, “Gigi Hadid Takes on the New Look of Destroyed Denim,” Vogue (Feb. 3, 2015) (on-line ed.) (https://www.vogue.com/article/gigi-hadid-style-destroyed-denim). The Vogue writer here does not intend to convey that Ms. Barsamian's jeans have been completely annihilated, but merely that they are “worn with deliberate tears at the knee” or “riddled with curious new holes.” Similarly, when the entertainment writer Shaunee Flowers states that “Kanye West destroys Wiz Khalifa on Twitter and it's epic,” she is not suggesting that Mr. West has actually eliminated Mr. Khalifa, but only that he has made disparaging comments about him on social media....

Yes. A judge in a RICO lawsuit about environmental protests is discussing Kanye West twitter battles. We live in such amazing times.

Resolute's attempts to include expert commentary on why Greenpeace is wrong, just leads the court to note that these are the kinds of things that people can disagree on, which makes it even more ripe for First Amendment protections:

The submission by Resolute of two expert declarations makes more manifest, not less, the degree to which the challenged statements are protected by the First Amendment. These declarations illustrate the extent to which the challenged statements (a) concern matters of public importance and (b) are subject to professional debate. For example, declarant Frederick Cubbage undertakes a review of the FSC‟s suspensions of RFP‟s certifications and concludes: “Resolute‟s 2013 FSC audits indicate possible bias. Audits of similar forests in similar situations should have similar outcomes. That did not appear to be the case for Resolute. An applicant in full compliance with relevant laws should be certified under any standard.” ... Greenpeace‟s expert, Keith Moore, disagrees with this analysis, noting that because “[t]he FSC certification system establishes a higher standard and a broader suite of requirements,” it is possible to comply with the relevant law and still be denied FSC certification. ... Accordingly, he concludes, “[i]t is also incorrect to state that a company that meets regulatory requirements is equivalent to a company meeting all FSC certification requirements.” .. After all, as Dr. Cubbage notes, “forest certification, generally, refers to a non-state market-based policy approach to achieving sustainable forest practices and development,” ... so by definition it will encompass more than “relevant laws.” The academy, and not the courthouse, is the appropriate place to resolve scientific disagreements of this kind. As the Seventh Circuit has said, “scientific controversies must be settled by the methods of science rather than by the methods of litigation.” Underwager v. Salter, 22 F.3d 730, 736 (7th Cir. 1994). For that reason, “[c]ourts have a justifiable reticence about venturing into the thicket of scientific debate, especially in the defamation context.”

The court is also not at all impressed by the RICO claims. Remember the Popehat admonition about just how difficult it is to ever properly prove RICO in court? Resolute fails. Miserably.

Resolute fails to meet these heightened pleading requirements. While Resolute‟s complaint lists reports authored by Greenpeace, and includes dates of publication in many cases, in many cases it does not identify the author of the reports, and it never identifies the “misconduct” or “specific content” that constitutes fraud in the reports.13 Much of Resolute‟s pleading is even less specific. For example, Resolute claims that the Defendant “processed millions of dollars in fraudulently induced donations,” without describing a single donor, donation date or amount, nor how the donation was fraudulently induced... As such, the defendants are not on “notice of the particular misconduct which is alleged to constitute the fraud.” ... These general allegations fall far short of Rule 9(b)‟s requirements, and Resolute‟s RICO claims are therefore dismissed.

There's also the claim of extortion as a part of the RICO claim. Again... nope:

Resolute fails to allege predicate acts of extortion under the Hobbs Act. There is no Hobbs Act claim because the Defendants have not obtained “property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2). To show extortion, Resolute must allege that that Greenpeace demanded property from Resolute itself. Sekhar v. United States, 133 S.Ct. 2720, 2725 (2013); Scheidler v. Nat‟l Org. for Women, Inc., 537 U.S. 393, 404 (2003). In Scheidler, the Court held that the National Organization for Women (“NOW”) had not alleged extortion against activists who sought to shut down abortion clinics because although those activists sought to harm the clinics and NOW, they did not seek to obtain any property from such harm. 537 U.S. at 405 (“Petitioners may have deprived or sought to deprive respondents of their alleged property right of exclusive control of their business assets, but they did not acquire any such property. Petitioners neither pursued nor received something of value from respondents that they could exercise, transfer, or sell.”). Likewise here, even if Greenpeace sought to harm Resolute through Resolute‟s customers, it did not seek to obtain the business assets it sought to deprive Resolute of. Any alleged property transfer induced by fraud, coercion, or threats, moved between Greenpeace and its donors, or between Resolute and its customers. There was no alleged property transfer between Greenpeace and Resolute.

From there, the court moves on to the anti-SLAPP motion to strike. The analysis is short and straightforward. Greenpeace was clearly engaged in protected speech on a matter of public interest, and Resolute failed to show a probability of success as a matter of law. Thus, Greenpeace wins the anti-SLAPP motion as well (on state law claims). And, thus, Resolute will now have to pay Greenpeace's legal fees. Of course, the court did allow Resolute the ability to file an amended complaint, and if that fails (as seems likely) Resolute may still appeal. However, I'd be quite surprised if the 9th Circuit ruled differently. This appears to be a fairly straightforward SLAPP case, just with a RICO twist.

Of course, just a couple months earlier, while this case was still pending, a company called Energy Transfer Partners -- which might be more well known as an organization behind the controversial Dakota Access Pipeline -- filed a strikingly similar lawsuit against Greenpeace (and others, including Earth First). This one begins:

This case involves a network of putative not-for-profits and rogue eco-terrorist groups who employ patterns of criminal activity and campaigns of misinformation to target legitimate companies and industries with fabricated environmental claims and other purported misconduct, inflicting billions of dollars in damage. The network’s pattern of criminal and other misconduct includes (i) defrauding charitable donors and cheating federal and state tax authorities with claims that they are legitimate tax-free charitable organizations; (ii) cyberattacks; (ii) intentional and malicious interference with their targeted victim’s business relationships; and (iv) physical violence, threats of violence and the purposeful destruction of private and federal property. Energy Transfer is the latest legitimate business targeted by this network.

Incredibly, even though Greenpeace is the first named defendant, the lawsuit mostly focuses on other groups, like Earth First using what the filing calls "the Greenpeace Model" and only mentions in passing that Greenpeace was supportive of the Dakota Pipeline protests and organized some donation drives.

As you read through the lawsuit, it really reads like those who wrote it believe that getting attention for your protests is somehow illegal.

One of the ways the corrupt organizations conceal their true operations is to create the illusion that their “campaigns” and high-profile “events” are grassroots actions by volunteers and local “victims” who are spontaneously rallying together for the promoted cause. In fact, these events are organized, funded, and produced by these corrupt ENGOs to create sensational media attention and drive traffic and donors to their websites. Wolfpacks of corrupt ENGOs regularly collaborate on these manufactured attacks, including “old-line” ENGOs like Greenpeace and radical and fringe eco-terrorists who engage in disguised direct actions involving violence, property, and business destruction, and fabricated claims and “evidence” of misconduct by those targeted by the campaigns. These radical fringe groups create public spectacles and generate fodder for putatively legitimate environmental organizations to trumpet via-press releases and use as the basis to disseminate a parade of falsehoods deployed as part of a plea to the general public to “get involved” by donating or taking their own, more benign, direct action such as placing calls, or writing letters. Thus, at the heart of this fraudulent scheme are fundamental lies as to what these ENGOs do, their substantial funding, well-organized structures, powerful influences, and purposefully coordinated activities designed to create the appearance of an independent “grassroots” uprising by the people. These lies are perpetuated on donors, tax authorities, targets and their critical market constituencies, and the public at large.

Again, even if you disagree with Greenpeace's (and others') positions and/or tactics, it's pretty crazy to argue that they're illegal in any way, let alone a form of racketeering. Much of the rest of the filing reads like an advertisement for the Dakota Access Pipeline and how wonderful and safe and amazing it will be. It seems almost written more for public consumption than to make any kind of legal argument. There's also a section on cyberattacks, in which Energy Transfer Partners argues that silly Anonymous videos, which include doxing (and, yes, the lawsuit complains of "doxing") are all a part of the grand RICO conspiracy. You'd think that someone would inform these lawyers that anyone can just declare themselves a part of Anonymous and do what they want. It's like the opposite of an actual conspiracy. And while it does appear these may have lead to DDoS attacks on Energy Transfer, we've discussed before how DDoS can be seen as a form of protest -- i.e., a form of protected expression. And, here, there's no way to tie such actions back to organizations like Greenpeace anyway.

In this case, Energy Transfer is arguing that its damages are $300 million -- meaning a potential $900 million award should it prevail -- a sum that likely would put Greenpeace completely out of business. Importantly, the lawsuit was filed in North Dakota, which has no anti-SLAPP law and no caselaw around anti-SLAPP issues. So, this should be yet another reminder for why all states need stronger anti-SLAPP laws and we need a federal anti-SLAPP law, as soon as possible.

Oh, and in case you're wondering, yes, the lawyers on this filing are also from Trump's favorite law firm. It's the same Michael Bowe from Kasowitz.

Filed Under: anti-slapp, california, dakota access pipeline, defamation, free speech, marc kasowitz, michael bowe, protests, rico
Companies: energy transfer partners, greenpeace, resolute forest products

Judge Bars News Station From Showing Pictures In News Story, Admits It's Prior Restraint, Shrugs

from the you-kinda-can't-do-that dept

Amid an uptick in stories about courts issuing restraining orders that amount to prior restraint on speech, it's worth remembering that prior restraint is generally viewed as plainly unconstitutional except if it is applied narrowly and for dire reasons such as national security concerns. Despite that, prior restraint has come up quite a bit as of late, in cases ranging from trademark disputes between comic conventions to mattress review sites to anti-abortion activism. These expansions of prior restraint should concern anyone interested in free speech, of course, but it takes a special kind of judge to not only issue a prior restraint order against a news organization, but to admit it and say he doesn't care.

Michigan's WXYZ Channel 7 news team were contacted by Mila Kapusta and several other families asking that attention be paid to issues in the probate guardianship system. These families were frustrated with outcomes and procedures in the probate court as family's battle over custody of loved ones amid family disputes. Kapusta, for instance, had sought guardianship over her parents, which is currently held by Kapusta's sisters, Sandy and Lorrie. As part of its reporting on the story, WXYZ was going to include photos of the parents, Janet and Milan Kapp, provided by Mila Kapusta.

That is, until a judge stepped in and issued a restraining order preventing the footage from airing.

Just hours before the story was supposed to air last Thursday, Lorrie and Sandy Kapp got a judge to issue a Temporary Restraining Order, preventing us from showing you old family pictures that had been provided to us by their other sister, Mila.

Tuesday during a show cause hearing, Judge Daniel A. O'Brien continued that restraining order, saying his job was to protect Mr. and Mrs. Kapp, who are now in their 90s.

Perhaps you are thinking that Judge O'Brien didn't realize how grossly he had overstepped his legal authority. Perhaps, you may be thinking, even judges have bad days, make mistakes, perhaps with the best of intentions in mind. Perhaps, however, you should have a look at Judge O'Brien's comments on the matter.

"I am granting the injunction against Channel 7 and they are restrained. It is in fact a prior restraint I gotta admit, but they are not to use any photos or video of Milan and Janet Kapp in any broadcast," said Judge O’Brien.

Whatever the narrow scope for prior restraint you might think is acceptable, this situation simply doesn't fit the bill. Preventing a news organization, of all entities, from airing pictures of two key subjects in a story that absolutely is of the public interest, all in the name of protecting two elderly people, is without any legal justification that I can think of.

For its part, WXYZ isn't simply going to take this laying down.

WXYZ's attorney Jim Stewart argued that Judge O'Brien's initial restraining order was unconstitutional.

“A court cannot order someone not to publish something. It’s called a prior restraint of speech and it’s been held to be presumptively unconstitutional,” said Stewart. “You can’t have the government telling somebody what they can and can’t say when they’re covering a newsworthy event,” said Stewart.

Because WXYZ cannot allow Judge O’Brien’s order to set a precedent for other government officials limiting our news coverage – as protected by the First Amendment – we are appealing his order.

For the sake of our most basic freedoms, here's to that appeal (embedded below) succeeding with speed.

Filed Under: daniel a. o'brien, family court, first amendment, free speech, janet kapp, milan kapp, prior restraint
Companies: wxyz

Incentivizing Better Speech, Rather Than Censoring 'Bad' Speech

from the there-are-other-solutions dept

This has gone on for a while, but in the last year especially, the complaints about "bad" speech online have gotten louder and louder. While we have serious concerns with the idea so-called "hate speech" should be illegal -- in large part because any such laws are almost inevitably used against those the government wishes to silence -- that doesn't mean that we condone and support speech designed to intimidate, harass or abuse people. We recognize that some speech can, indeed, create negative outcomes, and even chill the speech of others. However, we're increasingly concerned that people think the only possible way to respond to such speech is through outright censorship (often to the point of requiring online services, like Facebook and Twitter to silence any speech that is deemed "bad").

As we've discussed before, we believe that there are alternatives. Sometimes that involves counterspeech -- including a wide spectrum of ideas from making jokes, to community shaming, to simple point-for-point factual refutation. But that's on the community side. On the platform side -- for some reason -- many people seem to think there are only two options: censorship or free for all. That's simply not true, and focusing on just those two solutions (neither of which tend to be that effective) shows a real failure of imagination, and often leads to unproductive conversations.

Thankfully, some people are finally starting to think through the larger spectrum of possibilities. On the "fake news" front, we've seen more and more suggestions that the best "pro-speech" way to deal with such things is with more speech as well (though there are at least some concerns about how effective this can be). Over at Quartz, reporter Karen Hao recently put together a nice article about how some platforms are thinking about this from a design perspective... and uses Techdirt as one example, in how we've created small incentives in our comment system for better comments. The system is far from perfect, and we certainly don't suggest that every comment we receive is fantastic. But I think that we do a pretty good job of having generally good discussions in our comments that are interesting to read. Certainly a lot more interesting than other sites.

The article also discusses how Medium has experimented with different design ideas to encourage more thoughtful comments as well, and quotes professor Susan Benesch (who we've mentioned many times in the past), discussing some other creative efforts to encourage better conversations online, including Parlio (which sadly was shut down after being purchased by Quora) and League of Legends -- which used some feedback loops to deal with abusive behavior:

In one experiment, Lin measured the impact of giving players who engaged in toxic behavior specific feedback. Previously, if a player received a suspension for making racist, homophobic, sexist, or harassing comments, they were given an error message during login with no specifics on why the punishment had occurred. Consequently, players often got angry and engaged in worse behavior once they returned to the game. League of Legends reform card.

As a response, Lin implemented “reformation cards” to tell players exactly what they had said or done to earn their suspension and included evidence of the player engaging in that behavior. This time, if a player got angry and posted complaints about their reformation card on the community forum, other members of the community would reinforce the card with comments like, “You deserve every ban you got with language like that.” The team saw a 70% increase in their success with avoiding repeat offenses from suspended users.

However, the key thing, as Benesch notes, is getting past the idea that the only responses to speech a large majority of people think is "bad" is to take it down and/or punish the individual who made it:

“There is often the assumption in public discourse and in government policymaking and so forth that there are only two things you can do to respond to harmful speech online,” says Benesch. “One of those is to censor the speech, and the other is to punish the person who has said or distributed it.” Instead, she says, we could be persuading people not to post the content in the first place, rank it lower in a feed, or even convince people to take it down and apologize for it themselves.

Obviously, there are limits on all of these options -- and anything can and will be abused over time. But by at least thinking through a wider range of possibilities than "censor" or "leave everything exactly as is" we can hopefully get to a better overall solution for many internet discussion platforms.

Meanwhile, Josh Constine, at TechCrunch recently had some good suggestions as well specifically for Twitter and Facebook for ways that they can encourage more civility, without resorting to censorship. Here's one example:

Practically, Twitter needs to change how replies work, as they are the primary vector of abuse. Abusers can @ reply you and show up in your notifications, even if you don’t follow them. If you block or mute them, they can create a new throwaway account and continue the abuse. If you block all notifications from people you don’t follow, you sever your connection to considerate discussion with strangers or potential friends — what was supposed to be a core value-add of these services.

A powerful way to prevent this @ reply abuse would be to prevent accounts that aren’t completely registered with a valid phone number, haven’t demonstrated enough rule-abiding behavior or have been reported for policy violations from having their replies appear in recipients’ notifications.

This would at least make it harder for harassers to continue their abuse, and to create new throwaway accounts that circumvent previous blocks and bans in order to spread hatred.

There may be concerns with that as well, but it's encouraging that more people are thinking about ways that design decision can make things better, rather than resorting to just out and out censorship.

Filed Under: abuse, comments, design, free speech, harassment
Companies: facebook, medium, twitter

New York Considers Barring Agreements Barring Victims From Speaking

from the perhaps-there-oughta-be-a-law dept

In the wake of the news about Harvey Weinstein's apparently serial abuse of women, and the news that several of his victims were unable to tell anyone about it due to a non-disclosure agreement, the New York legislature is considering a bill to prevent such NDAs from being enforceable in New York state. According to the Buzzfeed article the bill as currently proposed still allows a settlement agreement to demand that the recipient of a settlement not disclose how much they settled for, but it can't put the recipient of a settlement in jeopardy of needing to compensate their abuser if they choose to talk about what happened to them.

It's not the first time a state has imposed limits on the things that people can contract for. California, for example, has a law that generally makes non-compete agreements invalid. Even Congress has now passed a law banning contracts that limit consumers' ability to complain about merchants. Although, as we learn in law school, there are some Constitutional disputes about how unfettered the freedom to contract should be in the United States, there has also always been the notion that some contractual demands are inherently "void as against public policy." In other words, go ahead and write whatever contractual clause you want, but they aren't all going to be enforceable against the people you want to force to comply with them.

Like with the federal Consumer Review Fairness Act mentioned above, the proposed New York bill recognizes that there is a harm to the public interest when people cannot speak freely. When bad things happen, people need to know about them if they are to protect themselves. And it definitely isn't consistent with the public interest if the people doing the bad things can stop people from knowing that they've been doing them. These NDAs have essentially had the effect of letting bad actors pay money for the ability to continue the bad acts, and this proposed law is intended to take away that power.

As with any law the devil will be in the details (for instance, this proposed bill appears to apply only to non-disclosure clauses in the employment context, not more broadly), and it isn't clear whether this one, as written, might cause some unintended consequences. For instance, there might theoretically be the concern that without a gag clause in a settlement agreement it might be harder for victims to reach agreements that would compensate them for their injury. But as long as victims of other people's bad acts can be silenced as a condition of being compensated for those bad acts, and that silence enables there to be yet more victims, then there are already some unfortunate consequences for a law to try to address.

Filed Under: abuse, contracts, enforcement, harvey weinstein, ndas, new york, settlements

Trump May Not Be Serious About His NBC Threats... But He May Have Violated The First Amendment

from the you-can't-silence-people dept

By now, you've almost certainly heard about President Trump's multiple tweet attack on NBC for having a story he didn't like. A few times, Trump has suggested that NBC should "lose its license" because he doesn't like the company's reporting.

Separately, he said during a press conference the rather insane comment: "It's frankly disgusting the way the press is able to write whatever they want to write, and people should look into it." Again, the First Amendment is a big part of why the press is allowed to write whatever they want to write.

As plenty of people have pointed out -- including FCC Commissioner Jessica Rosenworcel -- this is not how it works... on multiple levels. First of all, NBC doesn't have a license that can be revoked. Local affiliates have the licenses, but that's different -- and those licenses are effectively impossible to revoke because the system was set up to avoid situations like a President trying to censor a TV news station.

But there are some much larger issues here, and a big one is that merely having the President threaten to punish a news organization itself may very well be a First Amendment violation. Now, some people will argue that Trump has his own First Amendment rights to whine about anyone he wants... but courts have already noted that if done as part of their role as a government official, that power is limited. Back in 2015, for example, we wrote about a fantastic 7th Circuit ruling by Judge Richard Posner in which he slammed Cook County Sheriff Thomas Dart for using his position to threaten payment companies into not working with Backpage.com.

Posner lays out, in great detail, how a government official, making threats, can violate the First Amendment.

“The fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff’s message, is not necessarily dispositive .... What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.”

And this:

The First Amendment forbids a public official to attempt to suppress the protected speech of private persons by threatening that legal sanctions will at his urging be imposed unless there is compliance with his demands....

Posner also dispenses with the argument that a person is free to say what he wants here, noting that when he speaks, he's using his position in the government to enforce silencing of speech.

As a citizen or father, or in any other private capacity, Sheriff Dart can denounce Backpage to his heart’s content. He is in good company; many people are disturbed or revolted by the kind of sex ads found on Backpage’s website. And even in his official capacity the sheriff can express his distaste for Backpage and its look-alikes; that is, he can exercise what is called “[freedom of] government speech.”... A government entity, including therefore the Cook County Sheriff’s Office, is entitled to say what it wants to say—but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens. “[A] government’s ability to express itself is [not] without restriction. … [T]he Free Speech Clause itself may constrain the government’s speech.”

And to make the point even clearer on where the line is drawn:

Sheriff Dart has a First Amendment right to publicly criticize the credit card companies for any connection to illegal activity, as long as he stops short of threats”

Trump has complained about news stations in the past -- and that's his right. But when he threatens to silence them by pulling their license (even if that's impossible) he is now directly using the power of government to threaten someone for protected expression. That's... violating the Constitution that the President has taken an oath to uphold.

Of course, that's just a recent 7th Circuit ruling. There are other circuits with similar rulings, such as the 2nd Circuit's Okwedy v. Molinari case, in which the court found that Staten Island Borough President sent a letter to a billboard company to complain about some billboards with anti-gay bible verses. In that case, amazingly, there wasn't even a real threat of action -- just a letter which called the billboards "unnecessarily confrontational and offensive" and said that "this message conveys an atmosphere of intolerance which is not welcome in the Borough." There was no direct legal threat, even, just a request to discuss and to act "as a responsible member of the business community." In that case, the court found that even without the explicit threat, it was a First Amendment violation:

Thus, the fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff's message, is not necessarily dispositive in a case such as this. What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff's First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant's direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.

That could certainly apply to Trump's statements.

There are some Supreme Court cases that are on point as well. The most famous is the classic 1963 free speech case Bantam Books v. Sullivan. In that case, the Supreme Court found that a Rhode Island commission focused on stamping out obscene/indecent/impure images and language in publications was unconstitutional. The Commission didn't have the direct power to censor -- but rather would create lists of items the majority of the Commissioners deemed objectionable, and then (1) notify the publisher, (2) notify retailers and (3) pass along a recommendation of prosecution. The state argued that since there was no direct power to censor, there was no First Amendment violation. The court disagreed, noting that mere intimidation was violating the First Amendment rights of the publishers.

It is true, as noted by the Supreme Court of Rhode Island, that Silverstein was "free" to ignore the Commission's notices, in the sense that his refusal to "cooperate" would have violated no law. But it was found as a fact—and the finding, being amply supported by the record, binds us— that Silverstein's compliance with the Commission's directives was not voluntary. People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around, and Silverstein's reaction, according to uncontroverted testimony, was no exception to this general rule. The Commission's notices, phrased virtually as orders, reasonably understood to be such by the distributor, invariably followed up by police visitations, in fact stopped the circulation of the listed publications ex proprio vigore. It would be naive to credit the State's assertion that these blacklists are in the nature of mere legal advice, when they plainly serve as instruments of regulation independent of the laws against obscenity

In short, there's a pretty broad range of case law both at the appeals court level and at the Supreme Court saying that merely threatening action to suppress protected speech is, in fact, a First Amendment violation. Would NBC actually have the guts to sue over this? That's much harder to say -- but it sure would make for an interesting case.

Filed Under: donald trump, first amendment, free speech, implied threats, license, threats
Companies: nbc

Lindsay Lohan's Parents Want Her To Sue A Senator Who Made Fun Of Lindsay

from the that's-not-how-any-of-this-works dept

Over the past few years we've written about some really dumb lawsuits (or threats of lawsuits) filed by actress Lindsay Lohan. There was that time she sued E*Trade for $100 million because it had a baby in its commercial, named Lindsey, who was described as a "boyfriend-stealing milkaholic," which she insisted must be a reference to her (think about that one for a second...). Or there was the time she claimed that a jewelry store releasing surveillance tape footage of her stealing a necklace violated her publicity rights. Then she sued the rapper Pitbull for a lyric "I got it locked up like Lindsay Lohan" (and, bizarrely, that one included accusations of a plagiarized filing by her lawyer. And, of course, most famously, Lohan spent years battling Take Two Interactive, claiming a ditzy starlet character in Grand Theft Auto was also a violation of her publicity rights.

Apparently she comes by this apparent proclivity to threaten and/or file nutty lawsuits honestly. Because her parents were reported as threatening to sue a US Senator for making a reference during a hearing to Linsday Lohan. They later "clarified" that they would not be the plaintiffs, but that they're encouraging Lindsay to sue. Here's the original report, though:

Michael and Dina Lohan are planning to sue Sen. John Kennedy (R-Louisiana) over the “slanderous comments” that he made about their daughter, actress Lindsay Lohan, on Wednesday during a congressional hearing on the Equifax data breach.

The comments occurred as Richard Smith, the former CEO of Equifax, the credit reporting company that was hacked last month, was being questioned about signing a $7.25 million IRS contract for identity verification services. The deal could reap profits for the company as a result of the hack.

“Why in the world should you get a no-bid contract right now?” Sen. Ben Sasse (R-Nebraska) asked Smith. Kennedy added, “You realize to many Americans right now, that looks like we’re giving Lindsay Lohan the keys to the minibar.” Smith paused for a moment before responding, “I understand your point.” The “Mean Girls” star, originally of Cold Spring Harbor and Merrick, has spoken about her past struggles with drugs and alcohol.

So, uh, let us count the many, many, many ways in which this is not "slanderous." (And we originally had the fact that Lohan's parents had no standing to sue, but have removed that since they've clarified they just want her to sue).

1. It was a figure of speech, not a false statement of fact about Lohan.
2. Even if there were a false statement of fact (there wasn't) there's no way that such a statement meets the "actual malice" claim -- meaning that it was done with knowing falsity or with reckless disregard for the truth.
3. Under the Westfall Act, everyone in Congress is effectively immune from defamation lawsuits for things they say as part of their job -- especially when said on the floor or in a committee hearing.
4. And, again, for emphasis, Senator Kennedy didn't say anything defamatory about Lohan.

Who knows if she'll actually go ahead and sue, but Michael Lohan insists that he's trying to find a lawyer to handle this, and told the site "Gossip Cop" (linked above) that merely associating Linsday's name with Equifax is what he found to be slanderous.

“Dina and I are seeking legal counsel for Lindsay regarding the slanderous comments and unprofessional behavior of Senator John Kennedy (R-La.),” he says. “His comment and analogy was inappropriate, slanderous and unwarranted. How dare he associate Lindsay with this case? Tell me, does he have a family member or friend with a former addiction problem? Wow, and he’s a senator?”

Hopefully, whatever lawyer he finds explains to him that this is not at all how defamation works. In his updated statement to Gossip Cop, he confuses matters even more:

“While Dina and I realize we can’t sue Senator Kennedy for his bullying statements, Lindsay can. I advised her to seek counsel through a friend who is a well-known federal attorney in New Orleans.” He adds, “This has got to stop. Lindsay has turned her life around and does wonderful humanitarian work.”

Again, even assuming that it's true that Linsday has "turned her life around" (good for her), that has nothing to do with whether or not she can sue over the Senator's statement. Unfortunately, it appears that Lindsay may actually be listening to her parents on this one. She tweeted the following:

It's a picture of her holding up a water bottle, and saying: "This is the only thing I keep in my mini bar these days - glad I found lawyer.com they are helping me out." It also includes a winking emoji and a blowing a kiss emoji -- which, we hope, means she's making fun of the situation, rather than following through with an actual lawyer.

Filed Under: defamation, dina lohan, free speech, john kennedy, lindsay lohan, michael lohan

Salt Lake Comic Con Fights Back Against Judge's 'Unprecedented' Gag Order

from the free-as-in-speech dept

As you will recall, the trademark dispute between the San Diego Comic Convention and the Salt Lake Comic Con is now in full swing. Thus far, the action has been somewhat strange, with the SLCC getting some pushback from the court based on what looks to be a flipflopping of exactly what defense it is claiming. That flipflopping has mostly amounted to varied claims by SLCC, run by Dan Farr Productions, that San Diego Comicon trademark for "comicon" was either generic at the time it was granted the mark or has become generic since being granted the mark. Due to that, Judge Anthony Battaglia has allowed the jury trial to move forward instead of issuing a judgment. But before he did so, Battaglia also issued a somewhat strange gag order on the Salt Lake Comic Con, prohibiting it from putting information about the case on its website, engaging the press regarding the trial, and even requiring Dan Farr Productions to put a disclaimer on its website about the injunction. At the time, we wrote that the gag order seemed strange and likely a violation of First Amendment rights.

And now Dan Farr Productions is arguing the same thing, having petitioned the 9th Circuit to vacate the gag order entirely.

In a writ petition to the 9th Circuit, they suggest that the trial judge's suppression orders be vacated as unconstitutionally vague and coercive. They doubt that the pool of potential jurors in the San Diego area is truly being unduly influenced, and in any event, they argue the judge's gag order is tantamount to a prior restraint in contradiction of the right to free speech.

"Without more, the nearness of trial weighs at least as heavily against prior restraints as in favor, because that is 'the precise time when public interest in the matters discussed would naturally be at its height' and '[n]o suggestion can be found in the Constitution that the freedom there guaranteed for speech...bears an inverse ratio to the timeliness and importance of the ideas seeking expression,'" states the petition. "To conclude otherwise — to allow the nearness of trial, of itself, to justify prior restraints — would be to countenance '[a]n endless series of moratoria on public discussion' about first one case and then another, as they work their way through the system and near trial, which 'could hardly be dismissed as an insignificant abridgment of freedom of expression.'”

In the petition, embedded below, the attorneys go on to point out that this kind of prior restraint on factual information about a case is without precedent. In addition, the requirement to put the disclaimer on their website is argued to put the SLCC in the position of either putting the disclaimer on the site and appearing to bow down before the court's infringement of its speech, or not putting the disclaimer up at all and therefore being unable to inform readers of the site of the infringement of its speech. Either way, through the prior restraint gag order issued by the court, the Salt Lake Comic Con is left unable to simply explain its side of the case.

Fortunately, it looks like the 9th Circuit is more than a bit interested in hashing this out.

A panel of judges say, in a short order issued Tuesday, the petition "raises issues that warrant an answer" and that San Diego Comic-Con has until noon Friday to file an answer. Additionally, in an extremely unusual move, the appellate court is also allowing Judge Battaglia an opportunity to address the petition.

I have to say, being able to hear Judge Battaglia explain his response to the petition will be quite interesting. I'm struggling to come up with what he might say beyond repeating the questionable concerns about jury tampering that might actually move the needle on the gag order being anything other than questionable at best.

Filed Under: first amendment, gag order, prior restraint, salt lake comic con, san diego comic con, trademark
Companies: dan farr productions, san diego comic con