Charlie Hebdo – Open Thread

On behalf of Ken and myself, sorry. It would be difficult to write about this infuriating, monstrous crime without saying something one or the other of us would later regret. Perhaps later. Please feel free to discuss this atrocity among yourselves.

In the meantime, some cartoons, for your reading pleasure:

Charlie-Hebdo-Charia-en-Libye

 

CharliehebdoCharlie2Charlie

 

Charlie4

 

And finally, a reminder that France prosecutes people, indeed "national symbols," for speech far milder than what Charlie Hebdo had to say.

The goddess of free speech.

The goddess of free speech.

Vive La France, but change your laws. Never surrender.

A SLAPP False Alarm Out Of Chicago: The Law Is An Ass

Monday's Chicago Tribune ran a story that had all the makings of a free speech outrage: a developer had sued local residents who had spoke out against a proposed Park Ridge development.

The residents went to a pair of public hearings to express their concerns about a developer's plans for a new four-story condominium building in their Park Ridge neighborhood.

Then they found themselves on the receiving end of a lawsuit.

Multiple people emailed me about this story, and more tweeted it to me. Fie! Censorship! Suppression! The original impetus for anti-SLAPP statutes was developers suing NIMBY citizens. This is a classic SLAPP! It's actionable even under Illinois' pathetic anti-SLAPP statute! To arms!

Or not.

I wrote the developer's attorneys at Ungaretti & Harris LLP. They responded quickly and courteously. (You may or may not be surprised to hear that's not the response I generally get.) They sent me the complaint, and pointed to some authority that explained their stance.

See, the developer here isn't suing for damages. It's not asking for anything from the neighbors. It's suing to overturn a zoning commission decision denying it a permit to build a multi-family residential and commercial development in Park Ridge. And the developer's attorneys have an extremely credible argument that Illinois law requires them to name a ridiculous array of people in the lawsuit to accomplish that.

Illinois, like many states, has statutes governing how you can challenge a zoning decision. It's not unusual for that path to be a lawsuit seeking review of the administrative decision. What is unusual is that Illinois law (1) requires you to name, as a defendant, all "parties of record" to the underlying decision, and (2) defines "parties of record" ridiculously broadly. The developer has a very credible argument that the neighbors who spoke at the zoning meetings are "parties of record" and that they are required under Illinois law to name them as defendants.

The developer's attorneys pointed me to a case in which the Illinois Appellate Court overturned a lower court decision in a zoning challenge on the grounds that the developer making the challenge hadn't named as defendants the neighbors who had objected to the development. That case also involved Park Ridge zoning:

The Park Ridge residents who made personal or representative appearances at the zoning board hearing lived in the immediate vicinity of the plaintiffs' property. They were more than disinterested witnesses; they actively maintained a position opposed to the plaintiffs'. Their interest in the outcome of the hearing was substantial. They did not seek administrative review of the board's decision because the decision was favorable to them. Their interest became jeopardized a second time when the plaintiffs challenged the decision in the circuit court; yet they were neither notified of the suit nor made defendants. They were thus deprived of the opportunity of protecting their interest-the monetary value of their homes and the aesthetic level of their neighborhood-in court.

O'Hare Int'l Bank v. Zoning Bd. of Appeals, City of Park Ridge, 8 Ill. App. 3d 764, 767, 291 N.E.2d 349, 351 (1972)

I did a little research on my own to see if the developer was relying on bad law. I found multiple cases emphasizing that failure to name the proper parties deprives the court of jurisdiction — meaning that any good result the developer got would be for naught. For instance, in one case a police officer suing a police commission for reinstatement was thwarted because he didn't name, as a defendant, the police chief who had complained about him to the commission:

Moreover, numerous Illinois supreme court and appellate court cases held that failure to name all parties who were of record at the administrative hearing makes a complaint fatally defective. See Winston, 407 Ill. 588, 95 N.E.2d 864; O'Hare International Bank v. Zoning Board of Appeals (1972), 8 Ill.App.3d 764, 291 N.E.2d 349. The requirement of naming all parties of record as defendants is both mandatory and jurisdictional. (Winston, 407 Ill. at 595-96, 95 N.E.2d 864; O'Hare International Bank, 8 Ill.App.3d at 767, 291 N.E.2d 349.) Section 3-107 of the Administrative Review Act states:

Marozas v. Bd. of Fire & Police Comm'rs of City of Burbank, 222 Ill. App. 3d 781, 787, 584 N.E.2d 402, 406 (1991)

In short, I think that the developer's lawyers here are right: there is at least a reasonable concern that a court will find that they must sue the neighbors who appeared at the zoning hearings in order to get relief from the zoning decision. That's a bizarre rule, but it's Illinois' rule, not the developer's.

Quench the torches, let fall the pitchforks: this likely isn't a SLAPP suit.

From my Monday-morning-quarterback armchair I will note that it would have been prudent to have a paragraph in the complaint saying something like "the Neighbor Defendants are named solely as required by Illinois law as potential parties of record to the administrative hearing, and no relief is sought specifically from them." It also would have been prudent to have an advance media strategy when this hit; a furor about SLAPPs was predictable. Nobody's perfect.

Remember: the media doesn't get law. Don't trust its reporting. Don't assume that sombody's failure to respond meant that they don't have a response.

Edited to add: Jack Leyhane is not completely convinced.

Roca Labs, Lacking A Hornet Nest Into Which It Could Stick Its Dick, Has Sued Marc Randazza

This crazy litigant goes to 11.

Roca Labs, you may recall, is the weight-loss-goo purveyor that is belligerent, litigious, and sensitive to criticism to a pathological degree. Last month I wrote about how they require their customers to sign no-criticism contracts, and had sued PissedConsumer.com for carrying negative reviews. Yesterday I lit the Popehat Signal to seek help for customers Roca Labs has targeted with vexatious litigation — including, in what no doubt is just a big coincidence, one of the witnesses against them in their first litigation.

Can Roca Labs push the envelope more? Yes they can.

Today Marc Randazza — counsel for PissedConsumer.com in Roca Labs' frivolous suit — filed an updated notice of related cases in the PissedConsumer case. That updated notice revealed that Roca Labs has now sued Randazza himself for his activities defending PissedConsumer.com.

The complaint itself — which I have uploaded here — brings the crazy and brings it good and hard. It was penned by Roca Labs' latest attorney, one Johnny G. DeGirolamo, a 2009 law school graduate and 2011 bar admittee, whose website is www.inlawwetrust.com. No, really. His site offers a flattering headshot of a smiling advocate, and it was a very good choice to use that picture rather than, say, his booking photo.

Roca Labs, through Johnny G., accuses Marc of interference with economic advantage and defamation per se1, demands a declaration that Randazza is wrong and he is libel, and moves for an injuction telling Marc to shut up. Yeah, good luck with that.

But that ain't all. The complaint is a model of prissy pearl-clutching. Johnny G. is aghast that Randazza has provided legal services to adult entertainment companies. Goodness gracious! Johnny G. is horrified that Randazza has been "an outspoken advocate for Phillip Greaves, the author of 'The Pedophiles Guide to Love and Pleasure.'" To be more accurate, Randazza has been an outspoken advocate for the First Amendment issues presented by Greaves' case, but it's not surprising that a First Amendment distinction is lost on the sort of attorney who wold represent Roca Labs. Johnny G. is cheesed off at Randazza's catchphrase murum aries attigit, which apparently suggests a level of aggression that is upsetting to a company that flails around suing its customers for criticizing it. In short, Johnny G. — bless his heart — does his best to make Marc Randazza sound terrible, and only wind up making him sound knowledgeable about free speech.

On to the substance of the claim, if I may use the term very generously. Roca — through Johnny G. — asserts that Marc has been defaming Roca Labs during this litigation by making statements to the press (or, as Johnny G. puts it, to "webzines") and then putting those same statements in court pleadings. They imply he's trying to cloak his statements to the media with litigation privilege by repeating them in court filings. This theory is . . . odd.

Moreover, Johnny G. and Roca Labs are conspicuously vague about exactly what statements are defamatory, and exactly how. Other than complaining that Randazza defamed Roca Labs through a very clearly satirical tweet on Halloween, there are few specifics. Roca Labs complains that Randazza's purpose is to "mock, ridicule, humiliate, harm, and continue his war against ROCA," but that's not very specific. Roca Labs complains about statements in articles by TechDirt and tries to attribute them to Randazza, but doesn't explain exactly what Randazza said and exactly how it was wrong. That lack of specificity is probably deliberate — if Roca Labs admitted they were mad over the term "snake oil," they'd have to confront the fact that the phrase is obviously protected opinion. See, e.g., Phantom Touring v. Affiliated Publ'ns, 953 F.2d 724, 728, 730–31 (1st Cir.1992) (holding that description of theatre production as “a rip-off, a fraud, a scandal, a snake-oil job” was no more than “rhetorical hyperbole”). Moreover, in some parts of the complaint Roca Labs is attacking statements that are clearly, objectively true based on Roca Labs' own court documents. For instance, Roca Labs angrily quotes a paragraph in which TechDirt accused them of trying to silence customers. Which is what they are doing.

Finally, the complaint attaches a motion for a temporary injunction, in which Johnny G. demands that Randazza cease and desist saying mean things about Roca Labs, retract prior mean things, and remove any online content about Roca Labs. At this point I have to admit that I don't know whether Roca Labs and Johnny G. are powerfully stupid, breathtakingly cynical, unapologetically unethical, or all three. Despite the fact that they are suing a renowned First Amendment lawyer, despite the fact that they are demanding an injunction silencing him, despite the fact that they have lost a similar injunction request in which Randazza schooled them on the First Amendment and prior restraint issues, and despite the fact that it is clear those issues will arise again, their motion makes no mention whatsoever of the overwhelming First Amendment and prior restraint issues presented by their demand.

Roca Labs is mistaking aggression for strategy. Randazza, by filing his notice of related case, has alerted the federal court hearing the PissedConsumer.com case that Roca Labs is flailing around suing opposing lawyers, which will not go over well. Roca Labs has hired what appears to be an improbably matriculated Muppet to champion their case, despite a patent lack of qualifications. Roca Labs thinks that suing Marc Randazza to shut him up is going to end well. They should have asked Raanan Katz or Crystal Cox how that would turn out.

I'm calling it: Roca Labs has achieved Prenda status.

Edited to add: Adam Steinbaugh explains why Roca Labs' attempt to evade the litigation privilege is so frivolous.

A Grumble: United States Courts Website Misinforms About Free Speech

Last night I carefully observed a gentleman who thinks that criticizing someone violates the First Amendment. You have to be very still in the wild or you spook them. After some irritable flailing our subject — a communications director — offered this:

A reminder that the First Amendment does not include the right to incite actions that hurt others: http://is.gd/Ah8ZU5

What a pointlessly vague, ambiguous, and misleading summary of First Amendment law, I thought. I wonder what unschooled blogger, what anti-speech advocate, what twelve-year-old's Livejournal post, what ungrammatical cat picture is he relying on for that statement?

Funny story.

[Read more…]

YOU NEVER LEAVE A MAN BEHIND! Unfortunately, we all too often leave man's best friend behind:

Even if it did come at some additional cost, so what? Going by simple cost-benefit analysis, the military wouldn't go to such great lengths to retrieve the bodies of fallen soldiers or protect the American flag, and yet it does. Why? Because everyone understands that such obligations are morally required and vital to morale.

"There are those who consider our military working dogs to be pieces of gear," Ferrell says in Glory Hounds. "I, for one, do not believe that at all. To try to remove your heart from the situation is really asking too much of a handler."

If you believe it's wrong for the army to abandon its dogs in the wilds of Iraq and (coming soon) Afghanistan, why not call your congressional representatives to let them know you support Walter Jones' bill prohibiting such practices, and may vote accordingly come November?

http://popehat.com/2014/09/01/22788/