When you boil down what the court wrote in order to dismiss with prejudice is that if Rachel Maddow said it, it cannot be taken as factual.
But that's not what the judge said since we have this:
There are certainly facts presented in the segment that are not in dispute. ... There is no dispute that Maddow discussed this article on her segment and accurately presented the article’s information. Indeed, the facts in the title of her segment are not alleged to be defamatory: “Staffer on Trump-favored network is on propaganda Kremlin payroll.” ... [OANN] agrees that President Trump has praised OAN, and Rouz, a staffer for OAN, writes articles for Sputnik News which is affiliated with the Russian government. Rouz is paid for his work by Sputnik News. Maddow provided these facts in her segment before making the allegedly defamatory statement. ... The basis for Maddow’s allegedly defamatory statement is clearly the story from the Daily Beast, which she presents truthfully and in full. Thus, she sufficiently provides listeners with the factual basis for her statement.
(Doc 30, pp. 11-12, citations omitted, emphasis added)
So what did the the District Court judge say about dismissal with prejudice?
First of all, lawyers need to get their case in order before they sue or they can face sanctions (but that is a different TechDirt story.) Second, while local rules may vary, Plaintiffs have a right to amend their complaint once provided it is within 21 days of service and thereafter only by permission. (Federal Rules of Civil Procedure, Rule 15.) OANN completed service on 2019-09-20 (Doc 10) so by the time Maddow's lawyers filed the Anti-SLAPP motion OANN's freedom to amend expired and could only do by leave of the defendants (unlikely!) or the court.
The district court analyzed the disputed statement and its context following the precedent of Cochran v. NYP Holdings, Inc. and Standing Comm. On Discipline of U.S. Dist. Court for Cent. Dist. of Cal. v. Yagman and distinguishing it from the pattern of facts in Unelko Corp. v. Rooney to determine:
Considering the totality of the circumstances—including the general context of the statements, the specific context of the statements, and the statements’ susceptibility of being proven true or false—a reasonable factfinder could only conclude that the statement was one of opinion not fact. ... For the foregoing reasons, the Court finds that the contested statement is an opinion that cannot serve as the basis for a defamation claim. ... Because there is no set of facts that could support a claim for defamation based on Maddow’s statement, the complaint is dismissed with prejudice.
So Maddow both faithfully presents the factual news and inserts her own opinion and hyperbole and the judge says a reasonable person could tell the difference due to the context. The case was dismissed with prejudice because you can't change established facts by alleging more facts. What OANN needed to do was present less facts about the context so that the fraction of a sentence that they complained about would have to stand on its own. This they cannot do, by controlling precedent.
Masnick wrote:
That is not even remotely close to what the judge said, nor the 9th circuit in affirming it. You are either too fucking stupid, or willfully misreading the ruling, which is a very standard defamation dismissal.
Chosen wrote:
The 9th circuit is trying their best to tip toe around the issue but the obvious inference in their decision is that anything said on the show is opinion and cannot be libel.
Again the District Court clearly said: “There is no dispute that Maddow ... accurately presented the article’s information.” Accurate information is facts. So what did the 9th Circuit say?
A reasonable viewer would be able to differentiate between Maddow’s commentary and the actual news she is reporting.
(p. 18, emphasis added)
... Maddow reports the undisputed facts and then transitions into providing “colorfully expressed” commentary.
(p. 20, emphasis added)
In comparison to the undisputed facts that Maddow reports, the contested statement was particularly emphatic and unfounded ...
(p. 21, emphasis added)
So clearly, the circuit court finds Maddow report facts and opinion and that reasonable people know which is which from the context.
Finally, on the dismissal with prejudice, the Circuit Court wrote:
the deficiency in Herring’s complaint would not have been overcome by incorporation of the rejected evidence.
(p. 23)
Stone wrote:
The court said Maddow is expected to express her opinions, not that everything she says is an opinion.
Chozen wrote:
Its in the nature of what dismissal with prejudice means. 'There are no set of facts that could possible support the claim.'
Not a true quote, see below.
Because you can't change the facts that determined the outcome of the case by adding more facts which necessarily are tangential at best or irrelevant. (You can't escape being caught with your hand in the cookie jar by pointing out that Billy's Mom buys him Oreos all the time.)
Chozen wrote:
Which is exactly what the original judge said
"there is no set of facts that could support a claim for defamation based on Maddow's statement,''
The district court did write “... there is no set of facts that could support a claim for defamation based on Maddow’s statement” (Doc 30, p.17) but you ignored the preceding reasoning based on precedent from Partington v. Bugliosi and Underwager v. Channel 9 Austl (Doc 30, pp. 7, 9-10) which is a controlling argument that additional facts would not budge.
Chozen wrote:
This is in the context of the show as a whole not just the segment.
Incorrect. The context was analyzed at multiple levels, including what was on screen at the exact time the contested statement was made. The District Court even includes a screen capture on page 14 because both the general and specific context matter.
Chozen wrote:
Even if you had an e-mail where Maddow admits the statement is deliberately false and made with malice it would still not be actionable because at its core Maddow is an opinion show and no reasonable person would take anything on an opinion show as a statement of fact.
Incorrect. Setting aside that Maddow is clearly reacting to the Daily Beast uncontested news story, such a hypothetical letter would be irrelevant to the reasoning in the case because
The threshold question “in a defamation claim is ‘whether a reasonable factfinder could conclude that the contested statement implies an assertion of objective fact.’ If the answer is no, the claim is foreclosed by the First Amendment.”
(Doc 30, p. 7, quoting Gardner v. Martino)
It's not like OANN was caught unaware, the argument MSNBC used closely paralleled that in their letter (attached to the complaint) which rejected OANN's demand for a retraction.
Which means you must 1) be reasonable and 2) study each contested statement according to the law. You have attempted neither. For example, you never considered Unelko Corp. v. Rooney where an opinion column writer statement was not considered protected opinion and Rooney had to rely on it being substantially true. (“his evaluation of Rain-X was capable of being understood as an assertion that the product failed to meet certain objective indicia of effectiveness.” at *1055)
Chozen wrote:
And BTW I agree with this. No reasonable person should ever take anything said on an opinion show as fact.
Reasonable people use a variety of mechanisms to evaluate what they hear and read. That's why both general and specific context as well as the details of the statement are important to consider. Even fictional television shows can support claims to defamation. but the particular facts about this one statement on Maddow's show do not, because of context.
Re: Re: Re: Re: Re: Re: Re: Re: Show on the Other Foot Test
You claim to have a predictive model. But I actually demonstrated my predictive model.
Impotent internet vitriol and cartoonish misogyny which rises to the level of poorly written Hollywood villain, does nothing to articulate your philosophical disagreement.
Impotent internet vitriol and cartoonish misogyny which rises to the level of poorly written Hollywood villain, does nothing to articulate your philosophical disagreement.
Indeed, as Chozen makes a repeatedly factual assertion and has not yet backed it up with a direct quote from:
And that doesn't even include the repeatedly asserted defense that the challenged words of Maddow were substantially true when read in a reasonable manner which the judges didn't find a need to consider given the precedents invoked.
So the one evading engagement with the facts of the debate is Chozen who would prefer that we not look at the facts and the law. If Chozen's assertion had a leg to stand on, it would be a simple cut-and-paste. But the Judges wrote nothing dispargaing to Maddow or her MSNBC show, leaving Chozen's post like the self-pity of a Incel -- baseless and a bit ugly.
Re: Re: Re: Re: Re: Re: Show on the Other Foot Test
Weak argument: "So fuck off".
It's not an argument. The verb is used in the imperative mood and thus is a command. Do you know why that poster is confident enough with his relation with this site to issue such a command?
Are you 12?
Apparently you do not.
Once again, the ignorance of the subject matter, history, law, and/or the US Constitution renders your posts into a tragic self-own and the absence of self-awareness robs you of the compassion of others.
Anyone who gives the least bit of human gratitude for online social interaction at TechDirt knows who Mike Masnick is. Anyone with the most cursory introspection into the site on which they will attempt to portray themselves as a victim of tertiary syphilis would know the relation between Mike and Tech Dirt is a particularly privileged one. Thanks to the unhelpful irksomeness of posters like Chozen and yourself, while you go about trying to "win" what you think are debates, Mike has almost certainly won yet another free lunch at Benihana or Greens or possibly an upscale ramen shop.
Apropos quote: I'm laughing at the "superior intellect."
Back on August 6, 2019, NBC wrote OANN a letter which was attached to the complaint. Here are two paragraphs.
Your letter acknowledges that Mr. Rouz writes for Sputnik- indeed, it makes clear that Mr. Rouz has written 1,300 articles for the outlet, which is nearly one article per day for the past four and a half years. Importantly, your letter also does not dispute the fundamental fact that Sputnik is funded by the Russian government. Nor could you. The United States intelligence community has determined that Sputnik played a key role in the Russian government's interference in the 2016 election and the Department of Justice ordered Sputnik's affiliated U.S. entities to formally register as foreign agents. Mr. Rouz's compensation for the more than one thousand articles he wrote for Sputnik was essentially paid for by the Russian government.
You also do not dispute that Mr. Rouz is employed by and writes for OAN. Indeed, you state that his job includes collecting and analyzing articles from other sources and writing articles for OAN based on those other sources. OAN, therefore, publishes content collected or created by a journalist who is also paid by the Russian government for writing over a thousand articles. Ms. Maddow's recounting of this arrangement is substantially true and therefore not actionable.
Someone who works for a media site partly or fully financed by Russia or any other country is not automatically a liar, an automaton, or a propagandist.
Someone who gets paid by a state-sponsored organ of propaganda to tell stories and who sometimes repeats that state's propaganda would appear to be a propagandist.
The original Daily Beast article and Maddow's same-day video segment (3m34s), which refers to it, both make it clear that Sputnik is “the Kremlin’s official propaganda outlet” and Kristian Rouz was both writing for Sputnik and giving stories as a "“One America correspondent", some of which repeat unprompted “Kremlin propaganda.”
Neither accused Rouz of being an automaton, but it is clear that Rouz has repeated debunked stories as part of purported news.
He might not be a committed Russian agent, but he does seem to have a history of taking money to be a talking head without the type of strict vetting to prevent unseemly associations with propaganda.
Maddow claimed that the OAN person was.
Maddow did not claim Rouz was a liar.
Maddow did not claim Rouz was an automaton.
Maddow did claim Rouz was “on the payroll of the Kremlin”, and “being paid by the Russian government to produce government-funded, pro-Putin propaganda for Russian [a] government-funded propaganda outfit called Sputnik” so OANN's “on-air U.S. politics reporter is paid by the Russian government to produce propaganda for that government”
But that was based entirely on the Daily Beast story and was not a contested statement of fact in the lawsuit.
That was a smear. That was pure defamation.
No. It was true. Truth is always a defense to a charge of defamation.
Meaning that claiming someone is a Russian agent simply because they did reporting for Sputnik is defamation. Meaning it's not bullshit.
Except that
Maddow does not say Rouz is a Russian agent in the sense of not having agency of his own, and
the Daily Beast article make is clear Rouz does not simply do "reporting for Sputnik" absent a buy-in to repeat debunked Russian propaganda.
Instead of celebrating corruption in the judiciary, why not support justice. Because you know.....they coming for you one day.
You'll look as stupid then as you look now. Crack down on defamation and smears.
Where is there "corruption in the judiciary" ? Just because you don't understand the issue enough to know why multiple judges were bound by law to rule against OANN, an outcome predicted in a letter by MSNBC in 2019 before the lawsuit began*, is no reason to allege "corruption."
See Exhibit D attached to OANN's complaint
An important principle of justice is supporting truth and the First Amendment protects people who tell the truth. Scientists, Journalists, and Public Health official seek out the truth and hope to spread it.
I don't know who this "they" you refer to might be nor have you given an example of them persecuting anyone. If anything, this story has told us if a rich family-owned business tries to sue you for their hurt feelings over nothing and caused you to spend over a quarter million dollars to argue in court, some state laws may help you recover most of that wasted money.
As a published amateur mathematician, I don't look stupid all the time and I wonder why you think I do now. Are you responding to something specific or is this a general paranoiac rant?
You say "Crack down on defamation and smears." and I say "Promote the First Amendment, Suppor Truth, It's not defamation if it true, It's not defamation if it is pure opinion based on disclosed facts, Fair comment and criticism is not an unseemly smear, and If OANN doesn't like people pointing out their reporters were paid to promote Russian propaganda stories, then maybe they need to clean house rather than attacking their critics."
Re: Be glad the court refused to open that box OAN
OANN : Give us more than $10,000,000.00 (Doc 1, 2019-09-09)
MSNBC: For what?! (Doc 18, 2019-10-21)
Judge: You're crazy. You pay them. (Doc 30, 2020-05-22)
MSNBC: LA media litigation is expensive. They should pay us $323,965.00 + $9,706.28 (Doc 35, 2020-06-05)
OANN: San Diego lawyers aren't that expensive. How about $84,995.80 + $9,706.28 (Doc 37, 2020-6-26)
MSNBC: Now that we think about it, it should be $347,244.00 + $10,724.36 + what ever we are separately awarded for winning the appeal. (Doc 38, 2020-07-09)
Judge: You both make some good points and some weak ones. OANN will pay $247,667.50 + $10,724.36. (Doc 40, 2021-02-05)
To dismiss with prejudice means that there is no fact pattern in which this could ever be considered a statement of fact.
Nope, it means there is no set of allegations which will turn Rachel Maddow's isolated hyperbolic LOLZ about a true 3rd party news story into more than 1st Amendment-protected opinion about the story into a defamation claim by the subject of the story. Or as the District Court wrote: “Because there is no set of facts that could support a claim for defamation based on Maddow’s statement, the complaint is dismissed with prejudice.”
Given a news story which sussed out the uncontested facts that one OANN story source is also a paid contributor of a state-sponsored mouthpiece of Russia who also injected Russia-originated misinformation into OANN stories, Maddow sandwiched the statement: “in this case, the most obsequiously pro-Trump right wing news outlet in America really literally is paid Russian propaganda.” OANN didn't object to even the whole sentence or the sentence that came after: “Their on-air U.S. politics reporter is paid by the Russian government to produce propaganda for that government.” They only objected to the bolded part. But 1) “in this case” incorporated by reference the uncontested facts of the immediately presented news story, and 2) “literally” doesn't have a single meaning and cannot convert a hyperbolic opinion supported by disclosed facts into a statement of fact.
A better summary would be arguments that “opinion [plaintiff] doesn't like shouldn't be protected speech, and people shouldn't be allowed to report on undisputed facts that make [plaintiff] look bad” cannot result in a judgment of defamation because of the 1st Amendment and should result in penalties in jurisdictions with a healthy Anti-SLAPP statute.
That basically means that nothing Rachell Maddow ever say can possibly be taken by a reasonable person as a statement of fact.
That is not what it says. It says reasonable people listen to Maddow in context because “Maddow’s show is different than a typical news segment where anchors inform viewers about the daily news. The point of Maddow’s show is for her to provide the news but also to offer her opinions as to that news.”
Oh well at least now its a matter of law that Rachel Maddow can never be taken as true.
[Citation Required.]
Indeed the Dirstrict Court wrote: “Maddow immediately qualified the allegedly defamatory statement with a factual clarification and viewers were seeing accurate information regarding OAN on the screen while listening to Maddow.” So Maddow's story in the whole was chock-full of truth. Truths that made Maddow gleeful and OANN sad.
The Circuit Court ruling affirmed that OANN had no good reason to bring MSNBC and Maddow into court over their delicate snowflake-like hurt feelings.
It may be along the lines of a non-apology apology (i.e. I'm sorry you feel that way when I call your ugly baby ugly) without the force and effect of a published retraction by a news source with journalistic integrity.
In April, Newsmax published an apology and retraction on its website after settling a lawsuit with Dominion employee Eric Coomer. That apology now appears to be deleted from the site. In February, OANN aired a 90-second disclaimer before a three-hour movie from Lindell featuring a host of election conspiracy theories. (emphasis added)
From the OANN lawsuit, paragraphs 200-206 of the complaint appear to tell a compelling story of a non-apology, non-retraction.
The Newsmax case was filed in Delaware Superior Court which is harder to reach than the Federal PACER system with free archives on CourtListener.com. But I think I found a copy of the complaint. Paragraphs 9, 177-193 discuss the lengths Newsmax went to distinguish its December-April response from a responsible apology and retraction.
You can't guess reliably the outcome of all litigation by looking at just the complaint, but these aren't untested legal arguments but the asserted factual basis for the litigation.
A purported Ohioan suing in Tennessee because a D.C. complaint (by companies with homes in Colorado and Ontario) quoted a piquant phrase of a judgment in Arizona but ignored the paragraph of the D.C. complaint quoting a North Dakota judgement as to why that opinion was justified.
But actually the whole complaint feels like a self-own. See for example, paragraph 9 of Maras' complaint:
Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2). Defendants’ defamatory statements were published in this District, Defendants regularly conduct business within this District by supplying Williamson County, Tennessee with electronic voting machines and Defendants’ receive revenue from conducting business in this District.
But 28 U.S.C. § 1391(b)(2) reads as “A civil action may be brought in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated;” That's not Tennessee.
In paragraph 10, Maras admits she authored a declaration.
In paragraph 11, Maras admits that declaration was attached to Powell's AZ complaint.
In paragraph 13, Maras admits she presented only concerns and not evidence.
In paragraph 14, Maras admits the AZ judge introduced the phrase "wholly unreliable sources"
In paragraph 21, Maras admits the complained about text comes only from a legal brief filed in the District Court for D.C. [Wrong Venue, Litigation Privelege]
In paragraph 21, the only complained about text is a single sentence:
The ‘wholly unreliable sources’ put forward by Powell and Wood in that case (whose declarations were posted on Powell’s fundraising website) included Terpsichore [sic] Maras-Lindeman [sic], Russell Ramsland, William, Briggs, and Josh Merritt a.k.a. ‘Spyder.’”
Which breaks dows to me as:
Fact: Maras wrote a declaration (see paragraph 10)
Fact: The declaration was among those attached to the AZ Complaint (see paragraph 11)
Opinion: The AZ Judge's phrase "wholly unreliable sources" applies to all the declarants with respect to the claims of fraud Powell wanted to make (i.e. "in that case") (see paragraph 13)
But even if you ignore the importance of the phrase "in that case", paragraph 105 provides a basis for a broader read of that opinion to be held fairly.
I've seen two pro se plaintiffs physically contend for the mike in front of an appellate panel, so I guess you can go to law school and still file such a complete self-own. But it does not bode well for someone in a solo practice.
My Pillow, Inc. v. US Dominion, Inc. (0:21-cv-01015)
Filed April 19. Stayed July 6. Lindell v. US Dominion, Inc. (0:21-cv-01332)
Filed June 3, Stayed July 7. it is hard to not see these as cross-complaints in a disfavored attempt to change venue for the US DOMINION, INC. v. MY PILLOW, INC. (1:21-cv-00445) case filed in D.C. The later lawsuit is also suing Dominion's competitor, Smartmatic.
A status conference for both is scheduled for August 20 in light of Judge Nichols' order of August 11.
Plaintiff appears to have hurt feelings because Dominion is suing Powell who used Plaintiff sworn affidavit to no good effect. Two word motion to dismiss: "Litigation Privilege" which is an actual thing rooted in the actual First Amendment.
The real battle will be over what the Plantiff's name is as in this filing she prefers "Terpsehore Maras" but in news stories "Terpsichore Maras-Lindeman" (Washington Post and Newsweek) is used while she blogs under a nickname and North Dakota alleges a handful of other names.
Also, Plaintiff claims to live out-of-state and doesn't suggest a reason why venue really ought to be in Tennessee. For example, Dominion Voting Systems Corporation is a for-profit Ontario corporation with its principal place of business in Toronto, Ontario (not Colorado like the Delaware corporations or Tennessee where the suit was filed).
O'Rourke v. Dominion Voting Systems, Inc. (1:20-cv-03747)
A purported class-action lawsuit against Dominion, Facebook, government officials and a cast of thousands for alleged violations of the Constitution under color of that evil section 230.
February 16 Motions to dismiss filed by Dominion and Facebook (Documents 22, 23)
March 9 Response to 22, 23 (Documents 39, 40)
March 10 Motion to dismiss by Center for Tech and Civic Life (Document 41)
March 10 Facebook points out Document 40 is 25 pages long when the rules allow only 15.
March 11 Judge Neureiter: “I'll allow it.” But Facebook gets additional pages to reply. (Document 43)
March 15-16 Motions to dismiss by Michigan Defendants, Georgia Defendants, Pennsylvania Defendants (Documents 46, 47, 49)
March 15 Plaintiffs propose amended complaint with at least 200 extra paragraphs. Document 48
March 23 Reply to 39, 40 (Documents 55, 56)
March 29 Responses to 48: (Documents 58-63)
March 31 Repsonse to 41 by Plaintiffs (Document 64)
April 8-9 Replies to 58-63 (Document 71, 73-77)
April 8 Response to 49 (Document 72)
April 12 Responses to 47, 46 (Documents 79, 80)
April 14 Reply to 64
April 19 Plaintiffs give up on suing out-of-state state employees (Documents 82-85)
April 20 Plaintiffs make another stab at dismissing out-of-state state employees (Document 87)
April 28 Judge Neureiter dismisses what is left of the case and denies leave to amend as futile.
But then...
April 29 Plaintiffs appeal to attempt to revive the case against Dominion, Facebook and the Center for Tech and Civic Life This is now twice deferred and the opening brief is not due until September 2.
May 13 Dominion moves for suctions (Document 98)
May 17 Pennsylvania defendants move for sanctions (Document 101)
May 21 Center for Tech and Civic Life and Facebook move for suctions (Documents 102, 103)
June 9 Michigan defendants move for sanctions (Document 109)
June 10 - July 8 Plaintiffs responds to motions for sanctions (110, 114, 118, 127)
Jun 24 - July 15 Plaintiffs replies (121, 122, 125, 126, 131)
July 16 The sanctions hearing
July 20 (The plaintiffs make a second motion in appellate court for more time for their opening brief.)
July 21 (The appellate court approves the delay until September 2, but cautions:
The appellants should note, however, that no further extensions of time to file the opening brief and appendix will be granted if premised on the pendency of post-judgment motions for attorney’s fees or sanctions. Such motions are collateral to the judgment, and any appeal of an order addressing such matters will be a new and separate appeal. (citations omitted)
August 3 Sanctions GRANTED (Document 136)
Also Document 90 was an attempt to unleash the kraken via importing all the other cases but the judge denied it.
Dominion has sued separately three separate groups of Defendants: Powell, Powell's law firm and Powell's organization “Defending the Republic”; Lindell and MyPillow; and Giuliani, which due to a maximum RDA of crazy (or perhaps judicial economy) have been lumped together as related cases with a single judge, covering all the arguments in all the motions to dismiss, ruling in favor of Dominion on August 11.
These defendants get to make fresh motions to dismiss, but face the same Judge Nichols, who might get a bit tetchy if they just cut-and-paste from Powell and Lindell.
August 4 (Document 27) Sevier says he wants to talk about his proposed law and Section 230.
August 17 (Document 32) Judge Williams allows 30 page motion for preliminary injunction, but not 75.
August 18 (Document 33) Trump's attorneys to Chris Sevier: "No thank you."
Courts have squarely held that amicus briefs like those submitted by DSW here are improper, particularly at the district court level. DSW’s arguments are not ripe, Defendants have not been served, and the relief requested is impractical at best.
Someone may be paraphrasing these last seven words back to them in the future ...
August 18 (Document 34) Judge Williams hand Trump (or, perhaps sanity) a win:
the amici’s motion for leave to file a brief as amici curiae (DE 27) in this matter is DENIED.
Meanwhile, in Trump v. YouTube an amended motion for excess pages fared no better with Judge Moore and they still have 30 pages for preliminary injunction, not 75. Is that a success of 50% (from the default limit of 20) or a failure of 60%.
The Court denies without prejudice 30 the Plaintiff's motion for leave to file excess pages. The motion for leave fails to specify how many additional pages the Plaintiff requests for his forthcoming motion for preliminary injunction. Additionally, the motion lacks a certificate of conferral as required by Local Rule 7.1(a)(3). The Plaintiff contends that a certificate of conferral is not required because the Local Rule exempts motions for preliminary injunction. However, the subject motion is a motion for leave not a motion for preliminary injunction or any of the other of the motions exempted by the Rule. Accordingly, after meaningful conferral, the Plaintiff may refile a motion for leave to file excess pages curing the deficiency identified in this order.
Who could have predicted this?!
Trump v Facebook
Asked for unlimited pages, amended the motion to request 75, motion still pending.
Pursuant to S.D. Fla. L.R. 7.1, the Motion for a Preliminary Injunction does not require a
pre-filing conferral. Accordingly, Plaintiff requests leave from this Honorable Court to file said
motion in excess of the local rule page limit. Defendants will be served with the Motion for
Preliminary Injunction immediately after it is filed.
Very similar Motions to File Excess Pages for a forthcoming Motion for Preliminary Injunction are also filed in Trump v. YouTube Document 32 and Trump v. Facebook Document 30.
How do lawyers bill for that? Which of the three cases gets the bulk of the drafting fees and which get just 6 minutes of copy and paste?
And why do they need to bog down 3 separate judges with oversize preliminary injections?
The Defendant’s ongoing practices violate the First Amendment to the U.S. Constitution,
Unlikely, as per the text of said First Amendment
In addition to an ordinary case where twenty pages is more than adequate for the evaluation of a Motion for Preliminary Injunction, this case requires:
...
(2) the existence of multiple constitutional issues that have not been litigated in any court in the Southern District of Florida; ...
Because a private company violating the First Amendment isn't a thing, and claiming that Defendant was acting in concert with the U.S. Government is a problem when the Plaintiff was the unitary executive of the U.S. Government and tried to style himself so after the term expired.
In Trump v. Twitter Document 30 is a motion to allow excess pages for a pending Motion for a Preliminary Injunction. How many excess pages? It doesn't say!
I've gone through the Local Rules the best I can as a non-attorney, and think there is another reason the motion should be denied. LR 7.1(a)(3).
LR 7.1 (a)(3) seems to require a certificate of conference with opposing council except for some cases including ex parte motions. LR 5.3 (d) places certain requirements on the form of ex parte motions (title, statement as to reasons, method of filing) which don't appear.
Conference with opposing counsel? Nope. Twitter hasn't yet made an appearance, and the document coyly indicates they notified all parties who made an appearance.Would that turn this into an ex parte motion? If so, where is the proposed order apparently required by LR 7.1 (a)(2) ?
And LR 7.1 (a)(3) doesn't say to confer with all attorneys who have made an appearance but all parties.
On the post: Ninth Circuit Affirms MSNBC's Anti-SLAPP Motion Against OAN Network's Bullshit Defamation Lawsuit
Re: Re:
Chozen wrote:
But that's not what the judge said since we have this:
(Doc 30, pp. 11-12, citations omitted, emphasis added)
So what did the the District Court judge say about dismissal with prejudice?
First of all, lawyers need to get their case in order before they sue or they can face sanctions (but that is a different TechDirt story.) Second, while local rules may vary, Plaintiffs have a right to amend their complaint once provided it is within 21 days of service and thereafter only by permission. (Federal Rules of Civil Procedure, Rule 15.) OANN completed service on 2019-09-20 (Doc 10) so by the time Maddow's lawyers filed the Anti-SLAPP motion OANN's freedom to amend expired and could only do by leave of the defendants (unlikely!) or the court.
The district court analyzed the disputed statement and its context following the precedent of Cochran v. NYP Holdings, Inc. and Standing Comm. On Discipline of U.S. Dist. Court for Cent. Dist. of Cal. v. Yagman and distinguishing it from the pattern of facts in Unelko Corp. v. Rooney to determine:
(Doc 30, pp. 16-17)
So Maddow both faithfully presents the factual news and inserts her own opinion and hyperbole and the judge says a reasonable person could tell the difference due to the context. The case was dismissed with prejudice because you can't change established facts by alleging more facts. What OANN needed to do was present less facts about the context so that the fraction of a sentence that they complained about would have to stand on its own. This they cannot do, by controlling precedent.
Masnick wrote:
Chosen wrote:
Again the District Court clearly said: “There is no dispute that Maddow ... accurately presented the article’s information.” Accurate information is facts. So what did the 9th Circuit say?
So clearly, the circuit court finds Maddow report facts and opinion and that reasonable people know which is which from the context.
Finally, on the dismissal with prejudice, the Circuit Court wrote:
(p. 23)
Stone wrote:
Chozen wrote:
Not a true quote, see below.
Because you can't change the facts that determined the outcome of the case by adding more facts which necessarily are tangential at best or irrelevant. (You can't escape being caught with your hand in the cookie jar by pointing out that Billy's Mom buys him Oreos all the time.)
Chozen wrote:
The district court did write “... there is no set of facts that could support a claim for defamation based on Maddow’s statement” (Doc 30, p.17) but you ignored the preceding reasoning based on precedent from Partington v. Bugliosi and Underwager v. Channel 9 Austl (Doc 30, pp. 7, 9-10) which is a controlling argument that additional facts would not budge.
Chozen wrote:
Incorrect. The context was analyzed at multiple levels, including what was on screen at the exact time the contested statement was made. The District Court even includes a screen capture on page 14 because both the general and specific context matter.
Chozen wrote:
Incorrect. Setting aside that Maddow is clearly reacting to the Daily Beast uncontested news story, such a hypothetical letter would be irrelevant to the reasoning in the case because
(Doc 30, p. 7, quoting Gardner v. Martino)
It's not like OANN was caught unaware, the argument MSNBC used closely paralleled that in their letter (attached to the complaint) which rejected OANN's demand for a retraction.
Which means you must 1) be reasonable and 2) study each contested statement according to the law. You have attempted neither. For example, you never considered Unelko Corp. v. Rooney where an opinion column writer statement was not considered protected opinion and Rooney had to rely on it being substantially true. (“his evaluation of Rain-X was capable of being understood as an assertion that the product failed to meet certain objective indicia of effectiveness.” at *1055)
Chozen wrote:
Reasonable people use a variety of mechanisms to evaluate what they hear and read. That's why both general and specific context as well as the details of the statement are important to consider. Even fictional television shows can support claims to defamation. but the particular facts about this one statement on Maddow's show do not, because of context.
On the post: Ninth Circuit Affirms MSNBC's Anti-SLAPP Motion Against OAN Network's Bullshit Defamation Lawsuit
Re: Re: Re: Re: Re: Re: Re: Re: Show on the Other Foot Test
You claim to have a predictive model. But I actually demonstrated my predictive model.
On the post: Ninth Circuit Affirms MSNBC's Anti-SLAPP Motion Against OAN Network's Bullshit Defamation Lawsuit
Re: Re:
Impotent internet vitriol and cartoonish misogyny which rises to the level of poorly written Hollywood villain, does nothing to articulate your philosophical disagreement.
Indeed, as Chozen makes a repeatedly factual assertion and has not yet backed it up with a direct quote from:
And that doesn't even include the repeatedly asserted defense that the challenged words of Maddow were substantially true when read in a reasonable manner which the judges didn't find a need to consider given the precedents invoked.
So the one evading engagement with the facts of the debate is Chozen who would prefer that we not look at the facts and the law. If Chozen's assertion had a leg to stand on, it would be a simple cut-and-paste. But the Judges wrote nothing dispargaing to Maddow or her MSNBC show, leaving Chozen's post like the self-pity of a Incel -- baseless and a bit ugly.
On the post: Ninth Circuit Affirms MSNBC's Anti-SLAPP Motion Against OAN Network's Bullshit Defamation Lawsuit
Re: Re: Re: Re: Re: Re: Show on the Other Foot Test
It's not an argument. The verb is used in the imperative mood and thus is a command. Do you know why that poster is confident enough with his relation with this site to issue such a command?
Apparently you do not.
Once again, the ignorance of the subject matter, history, law, and/or the US Constitution renders your posts into a tragic self-own and the absence of self-awareness robs you of the compassion of others.
Anyone who gives the least bit of human gratitude for online social interaction at TechDirt knows who Mike Masnick is. Anyone with the most cursory introspection into the site on which they will attempt to portray themselves as a victim of tertiary syphilis would know the relation between Mike and Tech Dirt is a particularly privileged one. Thanks to the unhelpful irksomeness of posters like Chozen and yourself, while you go about trying to "win" what you think are debates, Mike has almost certainly won yet another free lunch at Benihana or Greens or possibly an upscale ramen shop.
Apropos quote: I'm laughing at the "superior intellect."
On the post: Ninth Circuit Affirms MSNBC's Anti-SLAPP Motion Against OAN Network's Bullshit Defamation Lawsuit
Re: Re: More Techdirt GARBAGE
Ah, Encyclopedia Brown and the Case of the Curiously Specific Denial.
On the post: Ninth Circuit Affirms MSNBC's Anti-SLAPP Motion Against OAN Network's Bullshit Defamation Lawsuit
From Exhibit D
Back on August 6, 2019, NBC wrote OANN a letter which was attached to the complaint. Here are two paragraphs.
On the post: Ninth Circuit Affirms MSNBC's Anti-SLAPP Motion Against OAN Network's Bullshit Defamation Lawsuit
Re: Defame
Someone who gets paid by a state-sponsored organ of propaganda to tell stories and who sometimes repeats that state's propaganda would appear to be a propagandist.
The original Daily Beast article and Maddow's same-day video segment (3m34s), which refers to it, both make it clear that Sputnik is “the Kremlin’s official propaganda outlet” and Kristian Rouz was both writing for Sputnik and giving stories as a "“One America correspondent", some of which repeat unprompted “Kremlin propaganda.”
Neither accused Rouz of being an automaton, but it is clear that Rouz has repeated debunked stories as part of purported news.
Larry King was paid by a state-sponsored organ of propaganda to tell stories so if he was not a propagandist, then at a minimum he was paid to help put an acceptable face on an organ of propagandia. Then he did it again ... for another.
He might not be a committed Russian agent, but he does seem to have a history of taking money to be a talking head without the type of strict vetting to prevent unseemly associations with propaganda.
But that was based entirely on the Daily Beast story and was not a contested statement of fact in the lawsuit.
No. It was true. Truth is always a defense to a charge of defamation.
Except that
Where is there "corruption in the judiciary" ? Just because you don't understand the issue enough to know why multiple judges were bound by law to rule against OANN, an outcome predicted in a letter by MSNBC in 2019 before the lawsuit began*, is no reason to allege "corruption."
An important principle of justice is supporting truth and the First Amendment protects people who tell the truth. Scientists, Journalists, and Public Health official seek out the truth and hope to spread it.
I don't know who this "they" you refer to might be nor have you given an example of them persecuting anyone. If anything, this story has told us if a rich family-owned business tries to sue you for their hurt feelings over nothing and caused you to spend over a quarter million dollars to argue in court, some state laws may help you recover most of that wasted money.
As a published amateur mathematician, I don't look stupid all the time and I wonder why you think I do now. Are you responding to something specific or is this a general paranoiac rant?
You say "Crack down on defamation and smears." and I say "Promote the First Amendment, Suppor Truth, It's not defamation if it true, It's not defamation if it is pure opinion based on disclosed facts, Fair comment and criticism is not an unseemly smear, and If OANN doesn't like people pointing out their reporters were paid to promote Russian propaganda stories, then maybe they need to clean house rather than attacking their critics."
On the post: Ninth Circuit Affirms MSNBC's Anti-SLAPP Motion Against OAN Network's Bullshit Defamation Lawsuit
Re: The LA Times says...
The LA Times doesn't go quite that far...
On the post: Ninth Circuit Affirms MSNBC's Anti-SLAPP Motion Against OAN Network's Bullshit Defamation Lawsuit
Re: Be glad the court refused to open that box OAN
OANN : Give us more than $10,000,000.00 (Doc 1, 2019-09-09)
MSNBC: For what?! (Doc 18, 2019-10-21)
Judge: You're crazy. You pay them. (Doc 30, 2020-05-22)
MSNBC: LA media litigation is expensive. They should pay us $323,965.00 + $9,706.28 (Doc 35, 2020-06-05)
OANN: San Diego lawyers aren't that expensive. How about $84,995.80 + $9,706.28 (Doc 37, 2020-6-26)
MSNBC: Now that we think about it, it should be $347,244.00 + $10,724.36 + what ever we are separately awarded for winning the appeal. (Doc 38, 2020-07-09)
Judge: You both make some good points and some weak ones. OANN will pay $247,667.50 + $10,724.36. (Doc 40, 2021-02-05)
Herring Networks, INC v. Maddow (3:19-cv-01713) District Court, S.D. California
On the post: Ninth Circuit Affirms MSNBC's Anti-SLAPP Motion Against OAN Network's Bullshit Defamation Lawsuit
Additional Sources
Daily Beast's original story on OANN as it appeared in court filing to take judicial notice of the news story referred to in the OANN complaint.
The story today is behind a paywall.
Maddow's Segment (3m34s) is still online.
On the post: Ninth Circuit Affirms MSNBC's Anti-SLAPP Motion Against OAN Network's Bullshit Defamation Lawsuit
Re: Its a Matter of Law Now
Nope, it means there is no set of allegations which will turn Rachel Maddow's isolated hyperbolic LOLZ about a true 3rd party news story into more than 1st Amendment-protected opinion about the story into a defamation claim by the subject of the story. Or as the District Court wrote: “Because there is no set of facts that could support a claim for defamation based on Maddow’s statement, the complaint is dismissed with prejudice.”
Given a news story which sussed out the uncontested facts that one OANN story source is also a paid contributor of a state-sponsored mouthpiece of Russia who also injected Russia-originated misinformation into OANN stories, Maddow sandwiched the statement: “in this case, the most obsequiously pro-Trump right wing news outlet in America really literally is paid Russian propaganda.” OANN didn't object to even the whole sentence or the sentence that came after: “Their on-air U.S. politics reporter is paid by the Russian government to produce propaganda for that government.” They only objected to the bolded part. But 1) “in this case” incorporated by reference the uncontested facts of the immediately presented news story, and 2) “literally” doesn't have a single meaning and cannot convert a hyperbolic opinion supported by disclosed facts into a statement of fact.
A better summary would be arguments that “opinion [plaintiff] doesn't like shouldn't be protected speech, and people shouldn't be allowed to report on undisputed facts that make [plaintiff] look bad” cannot result in a judgment of defamation because of the 1st Amendment and should result in penalties in jurisdictions with a healthy Anti-SLAPP statute.
That is not what it says. It says reasonable people listen to Maddow in context because “Maddow’s show is different than a typical news segment where anchors inform viewers about the daily news. The point of Maddow’s show is for her to provide the news but also to offer her opinions as to that news.”
Maybe, if you don't understand the phrase “reasonable people” in the way a American court does, you are not a reasonable American. May I point you at the Constitution of the United States as Annotated by the US Congress to help understand reasonable Americans better. Or if that is too long, you may simply want to read the District Court Opinion and the Circuit Court Opinion which provide the facts and reasoning with references.
[Citation Required.]
Indeed the Dirstrict Court wrote: “Maddow immediately qualified the allegedly defamatory statement with a factual clarification and viewers were seeing accurate information regarding OAN on the screen while listening to Maddow.” So Maddow's story in the whole was chock-full of truth. Truths that made Maddow gleeful and OANN sad.
The Circuit Court ruling affirmed that OANN had no good reason to bring MSNBC and Maddow into court over their delicate snowflake-like hurt feelings.
On the post: Judge Says Voting Machine Company Can Continue To Sue Trump's Buddies Over Bogus Election Fraud Claims
Re: Re: Re:
It may be along the lines of a non-apology apology (i.e. I'm sorry you feel that way when I call your ugly baby ugly) without the force and effect of a published retraction by a news source with journalistic integrity.
Newsmax, OANN sued by maker of voting machines (August 10)
From the OANN lawsuit, paragraphs 200-206 of the complaint appear to tell a compelling story of a non-apology, non-retraction.
The Newsmax case was filed in Delaware Superior Court which is harder to reach than the Federal PACER system with free archives on CourtListener.com. But I think I found a copy of the complaint. Paragraphs 9, 177-193 discuss the lengths Newsmax went to distinguish its December-April response from a responsible apology and retraction.
You can't guess reliably the outcome of all litigation by looking at just the complaint, but these aren't untested legal arguments but the asserted factual basis for the litigation.
On the post: Judge Says Voting Machine Company Can Continue To Sue Trump's Buddies Over Bogus Election Fraud Claims
Re: Re: Additional Dominion Cases of note
A purported Ohioan suing in Tennessee because a D.C. complaint (by companies with homes in Colorado and Ontario) quoted a piquant phrase of a judgment in Arizona but ignored the paragraph of the D.C. complaint quoting a North Dakota judgement as to why that opinion was justified.
But actually the whole complaint feels like a self-own. See for example, paragraph 9 of Maras' complaint:
But 28 U.S.C. § 1391(b)(2) reads as “A civil action may be brought in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated;” That's not Tennessee.
In paragraph 10, Maras admits she authored a declaration.
In paragraph 11, Maras admits that declaration was attached to Powell's AZ complaint.
In paragraph 13, Maras admits she presented only concerns and not evidence.
In paragraph 14, Maras admits the AZ judge introduced the phrase "wholly unreliable sources"
In paragraph 21, Maras admits the complained about text comes only from a legal brief filed in the District Court for D.C. [Wrong Venue, Litigation Privelege]
In paragraph 21, the only complained about text is a single sentence:
Which breaks dows to me as:
But even if you ignore the importance of the phrase "in that case", paragraph 105 provides a basis for a broader read of that opinion to be held fairly.
I've seen two pro se plaintiffs physically contend for the mike in front of an appellate panel, so I guess you can go to law school and still file such a complete self-own. But it does not bode well for someone in a solo practice.
On the post: Judge Says Voting Machine Company Can Continue To Sue Trump's Buddies Over Bogus Election Fraud Claims
Additional Dominion Cases of note
My Pillow, Inc. v. US Dominion, Inc. (0:21-cv-01015)
Filed April 19. Stayed July 6.
Lindell v. US Dominion, Inc. (0:21-cv-01332)
Filed June 3, Stayed July 7. it is hard to not see these as cross-complaints in a disfavored attempt to change venue for the US DOMINION, INC. v. MY PILLOW, INC. (1:21-cv-00445) case filed in D.C. The later lawsuit is also suing Dominion's competitor, Smartmatic.
A status conference for both is scheduled for August 20 in light of Judge Nichols' order of August 11.
Meanwhile, in Tennessee ....
Maras v. US Dominion, Inc. (3:21-cv-00636)
Filed August 16.
Plaintiff appears to have hurt feelings because Dominion is suing Powell who used Plaintiff sworn affidavit to no good effect. Two word motion to dismiss: "Litigation Privilege" which is an actual thing rooted in the actual First Amendment.
The real battle will be over what the Plantiff's name is as in this filing she prefers "Terpsehore Maras" but in news stories "Terpsichore Maras-Lindeman" (Washington Post and Newsweek) is used while she blogs under a nickname and North Dakota alleges a handful of other names.
Also, Plaintiff claims to live out-of-state and doesn't suggest a reason why venue really ought to be in Tennessee. For example, Dominion Voting Systems Corporation is a for-profit Ontario corporation with its principal place of business in Toronto, Ontario (not Colorado like the Delaware corporations or Tennessee where the suit was filed).
h/t https://abovethelaw.com/2021/08/kraken-witness-files-defamation-suit-against-dominion-for-oh-who-the -hell-even-knows/
On the post: Judge Says Voting Machine Company Can Continue To Sue Trump's Buddies Over Bogus Election Fraud Claims
Additional Dominion Cases at note
Additional cases filed against Dominion:
December 22, 2020
O'Rourke v. Dominion Voting Systems, Inc. (1:20-cv-03747)
A purported class-action lawsuit against Dominion, Facebook, government officials and a cast of thousands for alleged violations of the Constitution under color of that evil section 230.
But then...
April 29 Plaintiffs appeal to attempt to revive the case against Dominion, Facebook and the Center for Tech and Civic Life This is now twice deferred and the opening brief is not due until September 2.
Also Document 90 was an attempt to unleash the kraken via importing all the other cases but the judge denied it.
On the post: Judge Says Voting Machine Company Can Continue To Sue Trump's Buddies Over Bogus Election Fraud Claims
Suggested Correction
It is not lawsuit, but lawsuits.
Dominion has sued separately three separate groups of Defendants: Powell, Powell's law firm and Powell's organization “Defending the Republic”; Lindell and MyPillow; and Giuliani, which due to a maximum RDA of crazy (or perhaps judicial economy) have been lumped together as related cases with a single judge, covering all the arguments in all the motions to dismiss, ruling in favor of Dominion on August 11.
US DOMINION, INC. v. POWELL (1:21-cv-00040)
US DOMINION, INC. v. GIULIANI (1:21-cv-00213)
US DOMINION, INC. v. MY PILLOW, INC. (1:21-cv-00445)
Recently two new related lawsuits were filed in this District Court for the District of Columbia:
These defendants get to make fresh motions to dismiss, but face the same Judge Nichols, who might get a bit tetchy if they just cut-and-paste from Powell and Lindell.
On the post: Man Who Sued Apple For Failing To Save Him From Porn Now Suing US Attorney General To Strike Down Section 230
Re: More Chris Sevier
In Trump v. Facebook:
August 4 (Document 27) Sevier says he wants to talk about his proposed law and Section 230.
August 17 (Document 32) Judge Williams allows 30 page motion for preliminary injunction, but not 75.
August 18 (Document 33) Trump's attorneys to Chris Sevier: "No thank you."
Someone may be paraphrasing these last seven words back to them in the future ...
August 18 (Document 34) Judge Williams hand Trump (or, perhaps sanity) a win:
Meanwhile, in Trump v. YouTube an amended motion for excess pages fared no better with Judge Moore and they still have 30 pages for preliminary injunction, not 75. Is that a success of 50% (from the default limit of 20) or a failure of 60%.
On the post: Man Who Sued Apple For Failing To Save Him From Porn Now Suing US Attorney General To Strike Down Section 230
Re: Re: Trump v. everyone else
Trump v YouTube
Asked for unlimited pages, amended the motion to request 75, got 30.
Trump v Twitter
Asked for unlimited pages, denied.
Who could have predicted this?!
Trump v Facebook
Asked for unlimited pages, amended the motion to request 75, motion still pending.
But that's not how Judge Scola reads LR 7.1
On the post: Man Who Sued Apple For Failing To Save Him From Porn Now Suing US Attorney General To Strike Down Section 230
Re: Trump v. everyone else
Very similar Motions to File Excess Pages for a forthcoming Motion for Preliminary Injunction are also filed in Trump v. YouTube Document 32 and Trump v. Facebook Document 30.
How do lawyers bill for that? Which of the three cases gets the bulk of the drafting fees and which get just 6 minutes of copy and paste?
And why do they need to bog down 3 separate judges with oversize preliminary injections?
Unlikely, as per the text of said First Amendment
Because a private company violating the First Amendment isn't a thing, and claiming that Defendant was acting in concert with the U.S. Government is a problem when the Plaintiff was the unitary executive of the U.S. Government and tried to style himself so after the term expired.
On the post: Man Who Sued Apple For Failing To Save Him From Porn Now Suing US Attorney General To Strike Down Section 230
Re:Trump v. Twitter
In Trump v. Twitter Document 30 is a motion to allow excess pages for a pending Motion for a Preliminary Injunction. How many excess pages? It doesn't say!
I've gone through the Local Rules the best I can as a non-attorney, and think there is another reason the motion should be denied. LR 7.1(a)(3).
LR 7.1 (a)(3) seems to require a certificate of conference with opposing council except for some cases including ex parte motions. LR 5.3 (d) places certain requirements on the form of ex parte motions (title, statement as to reasons, method of filing) which don't appear.
Conference with opposing counsel? Nope. Twitter hasn't yet made an appearance, and the document coyly indicates they notified all parties who made an appearance.Would that turn this into an ex parte motion? If so, where is the proposed order apparently required by LR 7.1 (a)(2) ?
And LR 7.1 (a)(3) doesn't say to confer with all attorneys who have made an appearance but all parties.
So am I reading this right?
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