Victory For Blogger Patterico In Free Speech Case

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53 Responses

  1. joe pullen says:

    This is a great example of what defending free speech is all about. I also don't necessarily agree with Frey's position on some political issues but I'm very happy to see this outcome. Congrats on a well deserved win.

  2. Raul says:

    Awesome result.

  3. JW says:

    Fuckin' awesome, Ken (and Ron!). First round is on me.

  4. Ken White says:

    Incidentally, I lost my shit a little during oral argument and the judge had to tell me to calm down. Not my finest moment. Do as I say, not as I do.

  5. Congratulations on a well-deserved victory.

  6. Eric R. says:

    Very awesome. Congratulations!

  7. Chris says:

    Congratulations to Ken, Ron, and of course Patrick.

  8. Pablo says:

    I was a long time fan and reader of Patrick's blog. and have been referred to by him as one of his favorite commenters. That said, he's an asshole.

    I'm glad you all won this though. That is as it should be. I've yet to see Naffe do anything right.

  9. MarkH says:


    I would say "Welcome to the Big Leagues!" but that somehow seems rude these days. Plus I specialize in dog-walking and tv, so they aren't very great leagues at that. But it is so great to see lawyers doing what they feel is right and just, and judges who care as well.

  10. htom says:

    Congratulations, and thank you.

  11. Matthew Cline says:

    Any amusing responses from the anti-Patterico people?

  12. AlphaCentauri says:


  13. Wick says:

    Congratulations. Whatever the merits of the O'Keefe– Naffe dispute (the pair seem to deserve each other), this was an attack on political speech, and attacks on political speech should not be countenanced. Well done.

  14. I've recently become more aware of pro bono work by attorneys through a local charity (, and really appreciate what they and you are doing to defend fundamental human rights. Thanks much for defending freed speech in its true sense (even for those with whom you disagree.)

  15. Wick says:

    While the Popehat signal seems to be a quite effective tool on an ad hoc basis, has consideration been given to putting together a list of persons interested in defending bloggers from SLAAP suits? If so, put me down as a potential volunteer for Northern and Central Indiana.

  16. Jim Tyre says:

    Excellent, Ken. But really, not telling us how you lost your shit? Is that hypocrisy? '-)

    Wick, ping me.

  17. Patterico says:

    Ken is the greatest — and so is Ron Coleman.

    I have updated my own post to link Ken's post, and to add a few thoughts of my own. Allow me to quote one portion of my update:

    "When I told Ken this evening by email that I could not thank him enough, he told me: '[T]o pay me back, keep writing what you want to write, and encourage people to support free speech, especially for people with whom they disagree.' That brings tears to my eyes. It makes me want to stand up and start singing 'God Bless America.' And, on a more practical level, it redoubles my resolve to continue donating to organizations like FIRE — and to continue to stand up for free speech rights on this blog, even when I disagree with the opinions being expressed."

    As far as this lawsuit goes: Always remember, and never forget, that the judge threatened sanctions for what he characterized as "Plaintiff's (and/or her counsel's) willingness to play fast-and-loose with the language that is actually at issue here."

    That kind of says everything that needs to be said, doesn't it?

  18. Dan Collins says:

    Wonderful thing you guys have done on behalf of all of us bloggers. Thanks.

  19. Alan Bleiweiss says:

    The things some people say cause me to want to vomit. Yet I'll support their right to say it every time I get the opportunity. Of course, I too will then often utter how completely stupid, ignorant, myopic or otherwise wacked in the head they are for saying it. But that's just my way of exercising that very freedom and right we all share. :-)

  20. Patterico says:

    "Any amusing responses from the anti-Patterico people?"

    They're busy studiously pretending they have no idea it happened.

  21. joe pullen says:

    @Patterico – the anti-Patterico people can't apparently read, much less comprehend a straightforward motion to dismiss. Why only yesterday one of them thought it was the first day of the trial and went on to brag about their mastery of all things legal including California SLAPP – oops.

    And yes Ken brings tears to my eyes as well but most likely it is the result of the taint from his colostomy bag, or at least that is the excuse I use.or so I tell myself.

  22. BradnSA says:

    Thanks and congratulations. It's nice to see the good guys win one after the Walker and Hoge bs.

  23. princessartemis says:

    Congratulations and good work!

  24. LJM says:

    I'm an "anti-Patterico" person, and I couldn't be happier for the outcome. Patterico should be allowed to post all the boot-licking, authoritarian nonsense he wants without fear of frivolous litigation. If he's ever forced to censor himself, his descendants will have fewer opportunities to be mortified by his opinions! ;)

  25. That Anonymous Coward says:

    Good work!
    And I've totally never lost my shit dealing with stupidity ;D
    Sometimes it happens to even the best of us…

  26. Ghost says:

    Freakin awesome. Though I agree with the above post that we all need details on how exactly you lost your shit. Please tell me you quoted Vincent Gambini… "Everything that guy just said was bullshit."

  27. Kaitian says:

    The anti-Patterico people tried to imply that Frey was behind the bomb threat at the courthouse the very same day. Was Frey even there that day?

  28. JP says:

    Because I'm not a lawyer, this may be an utterly stupid (and possibly moot) question, but I ask it in all seriousness…

    How did Patrick Frey obtain the deposition transcript that was published in his blog?

    I know the document is "available in public court records online", but was that the avenue Mr. Frey obtained them (PACER?), or were they acquired through his position as Deputy District Attorney?

    Please don't get me wrong; I support the outcome of the case as reported here, and if Mr. Frey went through public channels to obtain public records, and posted same as a private citizen, I have no issue. Forget that I asked.

    However, if he used position as Deputy District Attorney to obtain those records from his office (bypassing public channels), then turned around and posted them as a private citizen, I would say, at a minimum, he violated his ethical duty to separate his job from his private life, as well as (possibly) public policy for his job.

  29. Chris R. says:

    Very awesome Ken, some good news to a rather bad week.

  30. Brian says:

    This is a practice question, not interesting to most people, but if anyone (including Mr. White) cares to answer, I'd appreciate it: Why are the various grounds – 12(b)1, 12(b)6, SLAPP – for the Motions to Dismiss spelled out in separate documents (filed the same day)? Usually I see all the grounds in a single big Motion to Dismiss.

  31. Arnt Karlsen says:

    ..and you should probably have listened a wee bit more to Judge Wu, "Ron and I filed motions seeking to dismiss Nafe's original federal complaint.", I guess should have been written 'Ron and I filed motions seeking to dismiss Naffe's original federal complaint.' ;o)

  32. SarahW says:

    They were on PACER, available like all other PACER docs.

  33. NickM says:

    JP – PACER is the online federal court case record system. They're not records belonging to the L.A. County District Attorney's Office.

  34. Ken White says:


    This is a practice question, not interesting to most people, but if anyone (including Mr. White) cares to answer, I'd appreciate it: Why are the various grounds – 12(b)1, 12(b)6, SLAPP – for the Motions to Dismiss spelled out in separate documents (filed the same day)? Usually I see all the grounds in a single big Motion to Dismiss.

    A few reasons. First, briefs have a page limit. Second, it's easier to keep the legal arguments distinct. Third, the different motions treat facts differently. The 12(b)(6) motion can't rely on evidence outside the complaint (with some exceptions), the other motions can rely on extrinsic evidence. It's hard to keep the distinction clear in a single brief.


    How did Patrick Frey obtain the deposition transcript that was published in his blog?

    From PACER,, the federal courts' online record system. Anyone can get an account.

    Mr. Frey's account of downloading the deposition transcripts from PACER is at page 5 of the anti-SLAPP motion above and paragraphs 22-27 of his declaration above.

    The deposition transcripts in question were still publicly available on PACER as of last Wednesday.

  35. eigenperson says:

    Put me in the "hate most of Patterico's political views but still glad he won" camp.

    The people who apparently think Frey and others like him should be forced to shut up represent a major failure of our educational system. We need to fix it, because the First Amendment will eventually be eroded away to nothing if citizens don't actually support the right to free speech.

  36. Patterico says:

    "Mr. Frey's account of downloading the deposition transcripts from PACER is at page 5 of the anti-SLAPP motion above and paragraphs 22-27 of his declaration above."

    Indeed — and anyone who takes the time to read the documents Ken referenced will see that I submitted proof, in the form of records from PACER, showing that is where I got the records.

  37. SPQR says:

    Ken, my immense gratitude to you and Ron for doing for my friend Patterico what I was not able to do.

  38. joe pullen says:

    BTW who exactly is "Hutt" Schmalfeldt?

  39. SPQR says:

    joe, the grotesque and quite insane Brett Kimberlin acolyte who posts an unending spew of obscenity and sickness about the "Team Kimberlin" (the Hutt even has a hat so labeled) enemies list.

  40. JP says:

    Ken & Patterico,
    Admittedly, I did not delve deep into the linked documents. I apologize for that, because I probably would not have fully understood the legaleze anyway. (Confession: I'm a physicist, not a lawyer.) Besides, Ken does such a great job summarizing!

    I do thank you both for the clarification. As you probably got from my comment, I dislike government officials using their position for personal gain/publicity. There a line that can easily be blurred, but I am grateful that this is NOT the case here.

    Congratulations! Your victory is well deserved. Kudos to you and the team for fighting the good fight!

  41. Dustin says:

    Ken, thanks for working so hard. I don't think you've been awarded fees. Is there any way to attempt to collect them? It probably wouldn't matter against a judgment proof individual anyway.

    But I've read your motions and you did professional and careful work, and it was worth thousands of dollars, and you and Ron Coleman just gave that away to someone because of your moral convictions. That is an impressive act of charity. Both of you are awesome people.

  42. Ron Coleman says:

    Hi. Shabbos just ended on the East Coast so I am catching up on all the good news, including all the good blogging about it — but thanks, Ken, for the nice mentions.

    People: This was Ken's baby. This is not a suggestion, Ken, for you to now pipe in and say, oh, no, Ron, you da man — I'm not good at false modesty, and indeed regarding conventional modesty I'm pretty lousy too, but, Ken, you would certainly have gotten this result without my help. I was and am honored to chip in, however, and will maintain my personal commitment only to use my frankly extraordinary talents only for good, or evil.

  43. TheOtherMatt says:

    Can somebody OCR the ruling for me

  44. James says:

    Let me knit-pick on one point in the post regarding a misstatement of the law. While it may seem a trivial point, it did not keep Judge Richard Posner of the 7th Circuit Court of Appeals from tossing an otherwise interesting case for lack of jurisdiction and sanctioning both attorneys for wasting the court's time.

    The requirement for diversity is not a controversy worth AT LEAST $75,000 as stated above. It is a controversy that "EXCEEDS the sum or value of $75,000" [emphasis mine]. You can look it up at 28 USC 1332(a).

    Apparently there is a growing, but sloppy, practice of attorneys asking for precisely $75,000 in damages in order to get a case into federal court, but forgetting that the requirement is to ask for more than $75,000. Judge Posner's opinion tore both attorneys a new one and the sanction he applied was that the attorneys were required to complete a law school review course covering the requirements for diversity. As both sides were represented by major Chicago law firms it was quite the slap in the face.

  45. joe pullen says:

    The Twitter commentary by the supporters of the opposing team is both hilarious and disturbing. Hilarious as they seem unable to comprehend basic legal terms and appear under the impression they can "re-try" this case under some tin foil hat conspiracy theory. Disturbing in that there appears to be an impllied intent to manufacture other reasons to drag Patterico into court again. I hope his employer is aware of this and treats any such nonsense accordingly.

  46. Bill says:

    @Ken – can you divulge the details of 'losing your sh*t"? Somehow i have a feeling it consists of really hysterical statements.

  47. Beldar says:

    Deftly done. My congratulations on a definitive, well-deserved, and well-earned victory.

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