Center for Medical Progress May Win Abortion-Related Prior Restraint Fight In Los Angeles

A couple of weeks ago I discussed a lawsuit filed by StemExpress — a broker of fetal tissue — against the Center for Medical Progress, the group at the heart of the ongoing video-based criticism of Planned Parenthood. I noted that a judge of the L.A. County Superior Court had issues a temporary restraining order preventing CMP from releasing a video of a meeting it had with StemExpress executives, and expressed some concern about the reasoning and how the ruling was constitutional under the prior restraint doctrine. Eugene Volokh's take was clearer and less prone to outbursts of profanity.

StemExpress' initial success now appears unlikely to continue. CMP has filed a well-drafted anti-SLAPP motion attacking the StemExpress complaint. I've explained how anti-SLAPP motions work before. If you're being sued for speech, and you believe the speech is protected, you can file the motion, lay the factual framework for the speech being protected, and force the plaintiff to come forward with admissible evidence showing it could plausibly succeed on its claims. Moreover, an anti-SLAPP motion halts discovery absent a special order of the court.

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James Woods Punches The Muppet

There was an episode of the 1990s sitcom Murphy Brown in which Murphy, played by Candace Bergen, appeared on kid's TV show to soften her image. The show features Muppets; it's a transparent stand-in for Sesame Street. Murphy, true to type, loses her temper and punches one of the Muppets, eventually ripping its head from its felt shoulders.

It's rarely productive to punch the Muppet.

Somebody should have reminded James Woods. He's just wound up and thrown a haymaker at a Muppet, suing some anonymous troll on Twitter for suggesting that he's a "cocaine addict." Woods filed a complaint in L.A. County Superior Court claiming $10 million in damages for defamation and false light invasion of privacy. He's represented by Lavely & Singer, as people like him tend to be in making errors of judgment like this.

Woods probably has plenty of money, and can afford to waste it on this sort of enterprise. That means that he won't be ruined if the semi-anonymous Twitter user hits him with an anti-SLAPP motion and wins attorney fees — which could easily be in the mid to high six figures.

Why do I think that Twitter troll "@abelisted" (now deleted) can win an anti-SLAPP motion in defense of this suit? Because he's a Twitter troll, and reasonable people would take his tweets as abuse, hyperbole, and satire, not as a statement of fact. Therefore they can't be defamatory.

Only provable statements of fact can be defamatory. Insults, abuse, hyperbole, overheated rhetoric, satire, irony, and the like cannot be. Whether a particular statement is one of fact or opinion is generally a legal question for the judge, not a question for the jury. Moreover, the judge must evaluate whether the statement is one of fact or opinion based on the context in which the statement was made. "The contextual analysis requires that courts examine the nature and full content of the particular communication, as well as the knowledge and understanding of the audience targeted by the publication." Bently Reserve L.P. v. Papaliolios, 218 Cal. App. 4th 418, 427 (2013). Increasingly, California courts have recognized that online rhetoric is more likely to be interpreted by its audience as cathartic trash-talk, not a factual assertion. This is especially true when it occurs someplace particularly known for overheated rhetoric, like a gripe forum. Furthermore, California courts have recognized that anonymity and semi-anonymity increase the audience perception that statements are rhetorical rather than factual.

Anyone familiar with Twitter knows it to be overrun with trolls, malcontents, comical and satirical characters, and deranged stone-throwers. Every indication is that "@abelisted" falls into this category. In fact, Woods' own complaint does an excellent job of setting up the argument that @abelisted is engaged in hyperbolic insult, not factual assertion:

The owner of the AL Twitter Account has thousands of followers and, since at least December 2014, has undertaken to engage his followers with a campaign of childish name-calling targeted against Woods. In the past, AL has referred to Woods with such derogatory terms as "prick," "joke," "ridiculous" "scum" and "clown-boy."

So, Woods concedes that exaggerated insults by a Twitter troll are the context for the troll eventually saying "cocaine addict James Woods still sniffing and spouting."

Woods compounds this impression by emphasizing and griping about non-factual statements clearly protected by the First Amendment:

Indeed, a search on Google.com for "Abe List James Woods" yields the outrageous statements from the AL Twitter Account as the top two results, including one that calls Woods "a ridiculous scum clown-boy."

Moreover, @abelisted's profile — now deleted, but available through Google cache — explicitly suggests that his tweets are not all to be taken seriously:

TrollsGonnaTroll

Moreover, @abelisted's tweets show him to be a rather banal critic of conservative figures, quick to insult and criticize them. He probably targets James Woods because Woods is an outspoken conservative, something that tends to agitate narrow-minded folks who are used to entertainment figures being outspoken liberals.

In short: the context of @abelist's tweets, especially as emphasized by Woods himself, overwhelmingly suggest that any reasonable reader familiar with that context would take the "cocaine" tweet as part of a pattern of hyperbolic abuse by a trollish partisan, not as a factual assertion meant to be taken at face value. I won't say that Woods' complaint is frivolous or sanctionable, but @abelisted definitely has a very strong anti-SLAPP motion available to him, and Woods could easily wind up paying his attorney fees.

@abelist is a punk, but you get to be a punk in America without being held financially liable for it.

Either James Woods got shitty advice, or James Woods' attorneys failed to convince him to act sensibly. The Streisand Effect has already begun; four to five orders of magnitude more people will hear about @abelisted's stupid tweet than would have without this lawsuit. What's the point?

Don't punch the Muppet, James Woods.

Edited August 28 to add: "John Doe", who runs the @abelisted account, has retained me to represent him in Mr. Woods' suit. I will not be discussing the matter here during the litigation, at least until we have a ruling on an anti-SLAPP motion. As always, my law firm does not control, approve, or endorse anything I write on Popehat; it's a purely personal project.

L.A. Court Prohibits Center for Medical Progress From Publishing Some Undercover Materials About Abortion

My co-blogger Adam Steinbaugh contributed to the factual and legal research of this post.

A group called the Center for Medical Progress ("CMP") has been releasing a series of "undercover" videos as part of a campaign against Planned Parenthood and abortion. This week, a judge of the Los Angeles County Superior Court issued an order prohibiting them from publishing a narrow range of materials on that subject.

This post addresses the First Amendment implications of that order, not the legal, political, and social issue of abortion and/or Planned Parenthood's practices.

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Popehat Signal: Please Help Mandy Nagy And Her Family

It's time for the Popehat Signal. I failed last time I lit it in this case, but I'm lighting it again, hoping that the community of civic-minded, speech-cherishing, evil-fighting lawyers will respond.

I need your help defending a stroke victim and her family against a domestic terrorist who has replaced his bombs with ongoing vexatious litigation.

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Lawsplainer: Did Gawker Aid and Abet Extortion? Nah.

tl;dr: nah.

Last week Gawker Media published an unusually vile story about an escort's apparent attempt to blackmail a married entertainment executive. In just one post, Gawker outed a man for an alleged same-sex encounter and acted as the willing instrument of blackmail.

Many Internet Lawyers have suggested that Gawker committed extortion, or acted as accessory after the fact to extortion, and that its writers may be criminally liable.

Are they?

Answer: no, probably not.

Assume For the Moment They Aren't Just Credulous Hacks

Let's set aside for the moment the distinct possibility that the whole incident is the invention of an unbalanced conspiracy theorist who duped Gawker through the intricate method of saying something scandalous that reinforced their worldviews.

Let's also assume, for the sake of argument, that the escort's communications to the victim constituted extortion: that at some point he said something like "use your influence to help me with my legal problem or I will reveal to the media that you sought to hire me for sex." Gawker's post containing some of the alleged communications is down, and we can hardly trust Gawker to have reported them completely or accurately.

Did Gawker Commit Extortion? No.

Title 18, United States Code, section 875(d) makes extortion a felony:

Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.

Many courts have defined "other thing of value" broadly enough that it can probably include the victim's use of his influence to assist the extortionist in a legal matter.1

The escort may have violated this statute, but Gawker didn't. So far as we know, Gawker and its writers didn't demand anything of value from the victim. Rather, once the extortionist came to them, they printed his story. They carried out the course of action threatened by the extortionist, but they didn't make the threat or demand the thing of value themselves.

Was Gawker an Accessory after the Fact? No.

Title 18, United States Code, section 3 criminalizes being an accessory after the fact. However, that status is narrowly defined to helping people escape:

Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.

Gawker didn't do that. If anything, publishing the extortionist's story made it more likely he'd be caught.

Did Gawker Conspire To Commit Extortion? No.

I don't think Gawker conspired to commit extortion, either. The elements of federal conspiracy are "1) an agreement to accomplish an illegal objective, 2) coupled with one or more acts in furtherance of the illegal purpose, and 3) the requisite intent necessary to commit the underlying substantive offense." But here the unlawful objective is demanding something of value (an exercise of influence) in exchange for silence. There's no indication that Gawker did that or agreed to it. If Gawker had said "unless you help this guy, we'll publish," that would be conspiracy to commit extortion. But what Gawker did instead was publish the threatened embarrassing information. There's no indication that they attempted to help the extortionist get anything from the victim.

Did Gawker Aid and Abet Extortion? No.

Someone can also be guilty of extortion if they aid or abet it under Title 18, United States Code, Section 2:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

The elements of aiding and abetting are:

(1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent of the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that someone committed the underlying substantive offense.

That's not what Gawker did. Gawker didn't intend to help the extortionist get something of value from the victim in exchange for silence. That's the opposite of what Gawker wanted — a lurid story to draw clicks. Gawker lacked specific intent to extort, so didn't aid and abet extortion.

There Oughta Be A Law

You could imagine a law that, like a prohibition of receiving stolen property, makes it illegal to publish embarrassing facts to help an extortionist carry out their threat. But that law would probably run afoul of the First Amendment, like any law that ascribes to a publisher of information the liability of their source.

Gawker and its writers probably didn't violate federal law.2 Whether they have civil liability is a different (and potentially more complicated) question. And, of course, they have moral liability: they're vermin.

Living To Make A Difference

I was over 40 the first time something I wrote was published. The first thing I did was send an email to my high-school English teacher, Kathi Condell.

Ms. Condell — that's how I continue to think of her, even after she married again and demanded that I call her Kathi — taught several of my literature and writing classes. That was 30 years ago now. Her lessons remain. I remember them when I think about what I read and when I consider how and what to write.

Kathi Condell had a gift for connecting with teens. She was supportive without being indulgent, and age-appropriate without being condescending. She had high expectations, and conveyed a quiet confidence that those expectations were reasonable and achievable.

More than that, she taught literature and writing not as means, but as ends. Everyone knew you had to write well and get good grades to get into a good college, and get a good job, and so forth. Everyone understood the grind, particularly at a school like mine. But Kathi Condell believed we should be well-read because we loved reading, that we should reflect on what we read because it was meaningful and pleasurable, and that we should treat writing as a form of artistic expression, not merely a tool. She helped teach me that writing could be useful and expressive at the same time.

I wanted to be a lawyer from a very young age. She was always respectful of that goal, but always encouraged me to think about writing as an art whatever I did as a job. As I graduated college, and law school, and moved from job to job, she congratulated me but always asked me "but what are you doing to write?" For many years I wasn't doing much. That's why it felt so good to tell her that I was making an effort to write for writing's sake. I wanted her to know that she'd been right, and that I remembered.

Kathi Condell Herroon passed away Monday. I love to write, and that's because of two people — Kathi Condell, and my father. Thank you.

What if we could all live so that thirty years down the road, people we've touched want to share news with us about what we've helped them achieve?

Judge Lisa Gorcyca Doesn't Hate Kids. Judge Lisa Gorcyca Hates Failure To Submit.

Judge Lisa Gorcyca, a judge in Oakland County, Michigan, is getting quite a lot of press this week for sending three kids to juvenile detention.

Judge Gorcyca doesn't preside in criminal court. She doesn't rule on delinquency petitions in juvenile court. She's a judge in the Family Division. And she sent three kids to juvenile detention — and specifically ordered them separated — because they didn't obey her orders to cultivate a warm relationship with their estranged father.

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What Did A Federal Prosecutor Need To Get A Gag Order On Reason Magazine? Pitifully Little.

When Back in June we all found out that federal prosecutors did, indeed, secure a gag order prohibiting Reason Magazine from commenting on a federal grand jury subpoena seeking to unmask mouthy anonymous commenters. At the time, nobody had a copy of the government's application for a gag order; we only had the formulaic, boilerplate order signed by Magistrate Judge Frank Maas. I made a prediction about the government's application:

Here's my prediction: when it comes to light, it will contain no more substantive information than appears on the face of the subpoena. That is, it will merely say "these people said these things, we want their information, therefore, give us a gag order."

Guess what? It had less than that.

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Kutner-ing Corners

Adam Kutner3 is (apparently) a familiar face around Las Vegas.  He's of the genus of lawyers with television advertisements, intoning soberly: "have you been injured in an accident?", as music likely reused from an episode of Unsolved Mysteries fills the background:

Kutner can empathize, because he's also been injured — online.  And his new lawsuit is a good example of why Nevada's pretty-damn-good anti-SLAPP statute is important.

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Lawsplainer: So Are Those Christian Cake-Bakers In Oregon Unconstitutionally Gagged, Or Not?

tldr: yes with an if, or no with a but.

By now you've heard about how an Oregon Labor Commissioner ordered the former owners of a bakery to pay $135,000 for refusing to bake a wedding cake for a same-sex couple. That order was widely reported as "gagging" the bakers and preventing them from expressing their opposition to same-sex marriage. My initial conclusion was that this spin was clearly wrong. People I respect — including my co-blogger Patrick — suggested that I should take a more careful look, and I have. My modified conclusion is that the Oregon Labor Commissioner's order is very troubling in light of the facts of the case because it's not clear what it bans. Based on the evidence before the Commissioner, the order may or may not purport to ban the Kleins from saying that they intend to continue to litigate the issue or that they believe that the order is unconstitutional.

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