Anti-SLAPP Victory In Oregon: Anti-Telemarketing Blog Wins Big With Pro Bono Help

Here's a hard fact about free speech: vindicating it in American courts takes either money (and lots of it), or lawyers willing to provide pro bono help. Right is right, and law is law, but court is court — and winning in court generally requires competent representation, which is ruinously expensive for normal people. It's not fair, it's not right, but it's true.

Therefore the vitality of the First Amendment depends not just on the law, but on the service of lawyers like Troy Sexton of Motschenbacher & Blattner LLP in Portland, Oregon.

Last August I put up the Popehat Signal seeking pro bono help for an anti-telemarketing blogger who writes at the Telecom Compliance News Press. The blogger was sued by an attorney named F. Antone Accuardi, who claimed that the blog falsely associated him with companies involved with robocalling and other telemarketing violations.

Troy Sexton stepped up. He filed a motion under Oregon's anti-SLAPP statute in response to Accuardi's complaint, and this March, he prevailed. Accuardi's complaint is here, Sexton's anti-SLAPP motion is here, and the Magistrate Judge's lengthy and detailed order granting the anti-SLAPP motion is here. Sexton's work was absolutely top-notch. The main basis of the judge's order is that the blog's comments of Accuardi were statements of opinion based on disclosed and linked facts about the companies and Accuardi's connections to them, and therefore protected by the First Amendment. It's a very thorough opinion and worth a read if you're interested in First Amendment and anti-SLAPP issues.

This is a tremendous victory for the blog, and for Troy Sexton and his firm. Sexton has a motion for fees pending; though he stepped in pro bono, I hope that he winds up collecting at his full rate from Accuardi. I am more free, and so are you, because people like Troy Sexton are willing to step up and contribute their time and skill. Please join me in congratulating him.

Last 5 posts by Ken White

Comments

  1. Matthew Cline says

    The main basis of the judge's order is that the blog's comments of Accuardi were statements of opinion based on disclosed and linked facts about the companies [emphasis added]

    A tangential hypothetical: lets say I write "The sky is blue. Whales are mammals. Therefore, John Doe is a murderer". Despite my "disclosed facts", that's not going to magically make what I said legally a matter of opinion, and if I claim otherwise then it's pretty obvious that I'm trying to use legal semantics to make my statement defamation proof. However, what if there's a case where the defendant uses blatantly illogical arguments to tie the "disclosed facts" to the conclusion, but there's some chance the defendant might actually believe their horrible logic? In such a case, does whether it legally counts as an opinion depend on whether or not the defendant actually believes what they say (as opposed to pretending to in an effort to make their statements defamation proof)?

  2. Matthew Cline says

    From the motion:

    Oregon has adopted the false light theory of invasion of privacy found in the Restatement (Second) Torts. Dean v. Guard Pub. Co., Inc., 73 Or. App. 656, 659–60 (1985). The Restatement says that a plaintiff must prove: (a) the false light in which the plaintiff was placed would be highly offensive to a reasonable person, and (b) the defendant has knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. Restatement 2d § 652E:3. False light requires falsity, a highly offensive association, and actual knowledge or reckless disregard of the truth. Id. Accuardi cannot prove falsity and actual knowledge or reckless disregard for the truth.

    Fredericks explicitly and openly cited source documents for his opinions. As discussed above, those documents were produced by state investigative agencies, attorneys general, public records

    Lets say that the plaintiff argues "the government is so incompetent that relying on anything they say is a reckless disregard for the truth". Are there any contexts or hypothetical situations where that argument would have any chance of prevailing?

  3. En Passant says

    Ken wrote:

    This is a tremendous victory for the blog, and for Troy Sexton and his firm. Sexton has a motion for fees pending; though he stepped in pro bono, I hope that he winds up collecting at his full rate from Accuardi.

    Congratulations and deepest gratitude to Troy Sexton. He has legally prevailed against Rachel from Cardholder Services, the slimiest and most labyrinthine criminal operation on the planet outside of the NSA.

    Inside of the NSA it's so slimy they don't have to show you no stinking laws. Badabing!

    And utmost gratitude to Ken for alerting Troy with the Popehat signal.

    For those who don't know just how large and complex the web of corporate entities and their illegal schemes are, Ken's link to Telecom Compliance News Press above is an excellent introduction. As described there, the operation is so big that they buy large blocks of unused phone numbers from legitimate telecom companies to use for their caller ID numbers.

    An earlier description of the operation, from Oregon to Florida (naturally) to Belize to India, and many of the legal actions against it, can also be found at this Complaintwire post and the comments following.

    The operation is huge with worldwide tentacles. Troy has prevailed against its epicenter.

  4. Dion Starfire says

    A win FOR Free Speech and AGAINST marketeers. You must be positively ecstatic, Ken. The only way it could be better is if the marketeers were ponies.

  5. I was Anonymous says

    @

    The only way it could be better is if the marketeers were ponies.

    Dion, you mean they aren't? If they aren't, then surely they are part of the Pony Conspiracy(tm)

  6. says

    Great job Troy! And Ken, you have once again done a fantastic job of using your superpowers for good. Keep the Popehat signal burning bright!

  7. markm says

    Matthew: "Lets say that the plaintiff argues "the government is so incompetent that relying on anything they say is a reckless disregard for the truth". Are there any contexts or hypothetical situations where that argument would have any chance of prevailing?"

    That would sort of destroy criminal law, wouldn't it? Imagine requiring actual evidence for search warrants, rather than vague allegations that some unnamed informant told a cop something. Or actual evidence for indictments. How would Angela Corey have gotten an indictment against George Zimmerman if she had had to play the tape in court and reveal that the first paragraph of her allegations contained a lie?

  8. c andrew says

    All Hail the mighty PopeHat Signal! May all purveyors of frivolous anti-speech lawsuits grovel in despair.

    IOW, good work Troy, Ken.

  9. Joe Pullen says

    And now everything has come full circle. It was a spam telemarketing call Popehat Signal that first brought me to this blog long ago. The author of the blog in question and I shared information about who was behind the company – or rather shells of companies running the telemarketing scam. He did an impressive job on his blog gathering and sharing intel.

    I'm glad to see he got the assistance he needed. Unfortunately the "Card Services" calls continue to this day but in what appears to be a diminished capacity.

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