Secure Channels is a startup cryptographic company that's off to a rough start — so much so that it's been reduced to using anonymous Twitter accounts to accuse a critic of criminal copyright infringement.
Imagine a controversial feminist, much maligned for incendiary rhetoric about gender relations. Scheduled to make a speech to like-minded people in some bastion of conservatism, she is approached by male critics, doused with several drinks, and pursued down the street by an angry, shouting crowd, quite plausibly out to do her physical harm.
This scenario shouldn't be hard to imagine; outspoken women of all political stripes get death threats and abuse all the time. Most of us would condemn it. Most of us would be dismayed by the attack on our hypothetical feminist.
Yet too many of us are willing to cheer when the person doused with drinks and pursued down the street is saying things we find to be horrific and evil.
Take the oozing pustule Daryush Valizadeh, better known as Roosh V. Roosh — whom we have mocked before — is thoroughly awful in every way. He's a vocal anti-Semitic conspiracy theorist, a proud rapist of women too drunk to consent, and generally a grotesque dehumanizer of women. He wrote a piece suggesting that rape should be legal on private property. Though he now claims it was satire, it's a testament to his persona that it's perfectly plausible that he meant it literally. At the very least, it's satire in the Ann Coulter sense, meaning that he wrote what he thought and then just punched it up a little bit.
Naturally he's controversial. Just as naturally, he has fans. Nobody ever went broke telling folks they're right to hate the people they already hate, and that all their ills are the fault of the people their foes. Roosh planned a Canadian tour, which predictably was met with a petition to deny him entry to Canada. In other words, people used their free speech to petition the government to use force and state power to exclude someone based on his speech. That's a worthy subject of its own post, but put it aside for now.
While in Montreal, out in the city looking for women to whom he could be a repulsive tool, Roosh had several drinks thrown on him and was pursued down the street by an angry group shouting obscenities.1 Many responses have been amused, triumphal, or approving.
It's beyond my modest abilities to feel empathy for Roosh; I won't pretend to. There is in my gut, in my lizard brain, a visceral joy at seeing him humiliated and threatened.
But we try not to order society via our lizard brains, and that's a good thing. Now, if we were to govern by my lizard brain, that would be perfectly acceptable, because my deep-seated hates and fears and instincts are all reasonable and proper. The problem is all those other damn lizard brains out there, worn by lunatics with different hates and fears and instincts. Roosh has a lizard brain too, and so do the losers willing to pay sixty bucks to hear him talk about how evil non-plastic women are. When we unleash the lizard brains — when we give into the temptation to ignore the distinction between speech and assault, between insulting and attacking — we will find to our great regret that the majority of lizard brains don't work like the ones we see on our carefully moderated Twitter feed. Most lizard brains are really fucking scary. For every lizard brain cheering when someone we hate gets chased down the threat by a screaming mob, there's two our three lizard brains ready to cheer when that happens to someone we agree with. I am more afraid of the consequences of normalizing and condoning this behavior than I am gleeful about the humiliation of an awful person.
I'm not saying you shouldn't revile Roosh. I'm not one of the people saying we need to respond gently to Roosh so his speech won't be chilled. Quite the contrary. Revile away. But keep your hands to yourself. Drench people in words, not beer. Let your words pursue them down the street.
Yes, I know. This is "concern trolling" or "slippery slope fallacy" and lack of perspective and sympathy for the devil and so forth. But go out unto the internet and look around and see the freaks and scum and extremists. Then come back and look me in the eye and tell me it's a good thing to encourage that crowd to react to speech like this.
Spanish-language network Univision has cancelled its telecast of the Miss America pageant in the wake of Donald Trump's characterization of Mexicans, and Trump has now sued Univision in response. The lawsuit, filed in state court in New York, is here.
I won't opine on Trump's contract-related claims without reading his agreement with Univision. But Trump and his lawyer, Jeffrey L. Goldman of Belkin Burden Wenig & Goldman LLP, have also included a defamation claim. As befits Trump, the claim is loud, vulgar, and stupid.
The defamation claim arises from Univision President of Programming and Content Alberto Ciurana using Univision's Instagram account to post photos of Trump and mass murderer Dylann Roof side by side with the words "no comments." Ciurana was no doubt thinking of Trump's characterization of Mexican immigrants:
When Mexico sends its people, they’re not sending their best. They’re sending people that have lots of problems. They’re bringing drugs. They’re bringing crime. They’re rapists.
Trump claims that Univision and Ciurana have broadcast false statements about him, and demands $500 million in recompense. But the defamation claim itself doesn't specify what false statements Trump is upset about; it only refers back to the factual recitation of the complaint. That section, in turn, only states that Trump made "insulting remarks about Mexican immigrants" and vaguely refers to (without printing or describing precisely) the Instagram post. Remember: vagueness in defamation claims is the hallmark of meritless thuggery.
As Eric Turkewitz points out, Trump's defamation claim is sanctionably frivolous. Ciurana's post wasn't a potentially actionable false statement of fact. It was a satirical statement of opinion — a hyperbolic assertion that Trump's actions show him to be a bigot. Calling someone racist based on known and disclosed facts is classic opinion protected by the First Amendment, not a provably false statement of fact that can be defamatory.
Trump's defamation claim also plays into the vapid modern narrative that vigorous criticism impairs First Amendment rights. Trump and his lawyers refer to "Univision's attempt to suppress Mr. Trump's First Amendment rights and defame his image," referring back to the Instagram post. In the same breath, they complain of "Univision's dubious efforts to create a false narrative." Trump's speech is protected and should be lionized; speech criticizing it is illegitimate and unprotected. Trump's lawyers sometimes make this very stupid argument within the same sentence:
Univision, in an obvious attempt to politicize the situation and suppress Mr. Trump's right to free speech, including his views on both trade and illegal immigration along the U.S.-Mexican border, has made a concerted effort, upon information and belief, in collusion with others, to wage war against Plaintiffs in the media.
I sympathize with attorney Jeffrey L. Goldman. Being Donald Trump's lawyer must be as tiresome, grotesque and demeaning as being his inadequately-supplied anus bleacher. But no matter how freakishly swollen a client's ego, an ethical lawyer is supposed to refrain from filing vexatious publicity-seeking claims. Goldman failed at that ethical obligation. Shame on him. And Trump? The man clearly lacks the capacity for shame.
Last summer I wrote about Ares Rights, a nominal "anti-piracy" firm that acts as a small-time legbreaker for various South American governments. When we encountered Ares they were trying to scrub discussions of Ecuador's spying practices through bogus DMCA notices. More recently Ares Rights abused the DMCA to suppress reporting on Ecuadoran corruption.
Now — because the internet is all about shoving everything up its own ass, as Jeff Winger would say — Ares Rights is sending out frivolous DMCA demands trying to silence discussion of its use of frivolous DMCA demands. Ares Rights responded to the Electronic Frontier Foundation's blog post about their abuse with, as Adam Steinbaugh reports, sending a DMCA notice demanding removal of the blog post. If that's not meta enough for you, now Ares Rights has issued a DMCA notice seeking to take down Adam Steinbaugh's blog post discussing their DMCA notice targeting the EFF's blog post discussing their prior DMCA notices.
It's not clear what Ares Rights hopes to accomplish. Their DMCAs will fail. This won't slow coverage. Trying to brush off the EFF or Steinbaugh with a DMCA notice is like trying to get a dog to stop humping your leg by petting it and feeding it bacon. Maybe they bill by the hour, even for patently ridiculous tasks? Maybe they are trying to convince their Ecuadorian masters that they are doing something, anything? Maybe they are just really very bad at their jobs? Stay tuned to find out.
Meanwhile, maybe you could go to their Facebook page and tell them what you think.
Edited to add: Ares Rights is deleting comments on their Facebook page, but they can't delete reviews here.
Adam Steinbaugh has responded to the DMCA notice.
Pity the spammers: they are past their prime. Email spam, now decades old, is hopelessly archaic. To keep up, the modern spammer must adjust to new platform after platform, each more limited and ephemeral than the last.
So of course there is Twitter spam.
Last week some writers at Jezebel made a public complaint about its parent, Gawker Media:
For months, an individual or individuals has been using anonymous, untraceable burner accounts to post gifs of violent pornography in the discussion section of stories on Jezebel. The images arrive in a barrage, and the only way to get rid of them from the website is if a staffer individually dismisses the comments and manually bans the commenter. But because IP addresses aren't recorded on burner accounts, literally nothing is stopping this individual or individuals from immediately signing up for another, and posting another wave of violent images (and then bragging about it on 4chan in conversations staffers here have followed, which we're not linking to here because fuck that garbage). This weekend, the user or users have escalated to gory images of bloody injuries emblazoned with the Jezebel logo. It's like playing whack-a-mole with a sociopathic Hydra.
The writers further complained that they had repeatedly informed Gawker Media of the problem, but higher-ups failed or refused to do anything about it. A couple of days later, the writers announced that Gawker Media had responded and was taking steps to deal with trolls barraging them with rape porn.
This complaint was ridiculed in some circles. No, I won't link them. The ridicule seemed to be based on the propositions that (1) it's silly to think that Gawker should be responsible for what some third-party troll is doing to its employees, and (2) it's silly to be upset by that sort of thing.
This is a good example of the phenomenon I like to call "bless your heart for thinking that, but it's not the law, dipshit."
American employers are, in fact, responsible for taking reasonable steps to protect their employees from racial or sexual harassment by third parties. This is the example I use when I train companies on sexual harassment prevention: if the UPS guy is constantly and creepily hitting on your receptionist, you need to do something about it. You may think that it is outrageous that this is the rule. Cool story, bro. That's what the law is, and if you employ people or advise anyone who employs people, you're a fool to ignore it. Here's how the United States Court of Appeals for the Fourth Circuit — hardly a bastion of liberalism — recently summarized it:
Similar to the reasoning we set forth for employer liability for co-worker harassment, “an employer cannot avoid Title VII liability for [third-party] harassment by adopting a ‘see no evil, hear no evil’ strategy.' “ Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 334 (4th Cir.2003) (en banc). Therefore, an employer is liable under Title VII for third parties creating a hostile work environment if the employer knew or should have known of the harassment and failed “to take prompt remedial action reasonably calculated to end the harassment.” Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir.1995) (quoting Katz v. Dole, 709 F.2d 251, 256 (4th Cir.1983)) (internal quotation marks omitted) (applying this standard to co-worker harassment).
In that case, the Circuit overturned a trial court judgment for the employer, finding that there was sufficient evidence to go to trial on the employee's complaints that an asshole customer had created a hostile environment and the employer didn't do anything about it:
Applying this standard here, we conclude that a reasonable jury could find that Dal–Tile knew or should have known of the harassment. Here, Freeman presented evidence that Wrenn, her supervisor, knew of all three of the most major incidents: the two “black b* * * * ” comments, and the “f* * *ed up as a n* * * *r's checkbook” comment. Wrenn was present for the first “black b* * * * ” comment, which Freeman complained about to Wrenn afterward. Freeman also complained to Wrenn specifically about the other two comments from Koester almost immediately after they occurred.5 When Freeman complained to Wrenn about the “f* * *ed up as a n* * * *r's checkbook” comment, Wrenn “scoffed and shook her head and put her head back down and continued on with trying to pick the nail polish off of her nails.” J.A. 102. When Freeman complained about the second “black b* * * * ” comment, Wrenn simply rolled her eyes and went on talking to a co-worker. J.A. 112. In addition to these most severe incidents, Wrenn was also present the time Koester passed gas on Freeman's phone and Freeman began crying and had to leave the room.
That supervisor, Wrenn, reacted rather like the critics of the Jezebel writers: "why, exactly, is this an issue we should care about?" That attitude was rather expensive for the defendant company in this case.
Or maybe you think that trolls constantly posting rape porn isn't severe or pervasive enough to create a hostile working environment. No, thanks, I don't think I'll borrow your laptop. Everyone is entitled to their own opinion, but everyone isn't entitled to the law being what they think it is. Minimal exposure to pornography isn't severe or pervasive. If someone puts up a centerfold and you complain and it's gone the next day, courts wont' find that to be sufficient to create liability. But being constantly exposed to pornography calculated to upset you — meant to troll you? That's probably over the line. "Although most cases involving pornography in the workplace include other elements such as threatening or offensive remarks, see, e.g., Waltman, 875 F.2d at 471, there is no necessary reason why the presence of pornography alone could not create a hostile work environment so long as the pornography was sufficiently severe or pervasive." Adams v. City of Gretna, 2009 WL 1668374 (E.D. La. June 12, 2009).
Let's put it this way: Gawker Media made the wrong choice when they ignored complaints, and the right choice when they started taking steps reasonably calculated to address the complaints. I'm not certain that the writers would win a lawsuit if Gawker had continued to put its head in the sand, but if I had to choose the stronger case, I'd choose the writers.
Preventing harassment is, for whatever reason, a subject that upsets people. Go ahead, be upset. Say it's ridiculous! But part of my job is training companies to minimize liability risks, and I'm here to tell you: if you don't take it very seriously as an employer, you might as well start writing checks to litigators right now.
Why do bad things happen to good people? I can't tell you that. But I can tell you that bad things happen eventually to bad people.
1. Perhaps you remember David Bell, chief fraudster of the U.S. Telecom fraud ring discussed in my "Anatomy of a Scam" series. He's had criminal charges pending in San Bernardino County since 2011. Recently he entered a no contest plea to two counts of grand theft auto, plus enhancements for priors, thus not admitting guilt but admitting that the government could prove those particular counts against him. He'll be sentenced in September. And what about the feds? Be patient . . . .
2. You probably also remember Dennis Toeppen, the oddly truculent head of bus company Suburban Express, who liked to threaten online critics with lawsuits and heap them with abuse. Ars Technical reports that Toeppen was arrested on two misdemeanor counts of electronic harassment. I'd reserve judgment until seeing the basis for the case; many cyberbullying and cyberstalking statutes are ridiculously overbroad and a violation of the sacred First Amendment right to be a turd. Ars Technica points out a recent Yelp thread in which Toeppen, true to form, lashes out at bad reviewers; it's bad business, but almost certainly protected speech.
3. The Prenda Law gang, about whom I've written a word or two, suffered another setback last week in the United States Court of Appeals for the D.C. Circuit. On May 27th, the D.C. Circuit overturned a trial court order permitting AF Holdings — a Prenda shell — to take early discovery from Cox Communications of the accounts associated with various IP addresses. The decision did not go well for Team Prenda. The D.C. Circuit recognized the various tactics criticized by other courts across the country, savaged AF Holdings' theories of why they would have personal jurisdiction over nationwide downloaders in D.C., and undermined Prenda's arguments about why they could combine multiple defendants in the same case. The court sent the case back to the trial court to see whether sanctions were appropriate for AF Holdings' notorious use of an allegedly forged signature on a copyright assignment. Protip — if a United States Court of Appeals refers to you as "law firm," with scare quotes thus, you're gonna have a bad time.
The wheel turns slowly, but it turns.
Update: Now With More Schadenfreude!
4. In Oregon Troy Sexton — who responded to the Popehat Signal and won an anti-SLAPP motion on behalf of an anti-telemarketing blogger sued for defamation — ThatLeftAMark has been awarded around $41,000 in fees and costs against the plaintiff, attorney F. Atone Accuardi. Keep those fee awards against censors rolling in, people.
Sean P. Fodera is a science fiction writer who works in the publishing industry. He's angry.
He started out angry over ongoing upheaval in the science fiction and fantasy literature community. That upheaval is mirrored in the gaming community and skeptic community and other communities with devoted and vocal fanbases. It's a conflict between two groups: a group that thinks the communities have a problem with racism, sexism, and harassment and should take steps to address it, and a group that thinks that the first group is engaged in free-speech-suppressing political correctness and should be resisted. A full description of the dispute would be too lengthy for this post.2
The Daily Dot published a post about this ongoing dispute, and in the course of doing so quoted and linked to some of the angrier things that Fodera said about Mary Robinette Kowal, a science fiction author and officer of the Science Fiction and Fantasy Writers of America. Kowal has spoken out against harassment in the science fiction and fantasy literature community, and SFWA is currently a locus of controversy about such allegations and the official reactions to them. In forum threads on SFF.net, Fodera complained at rather tedious length about Kowal, called her things like "incompetent," said that she agitated him in a manner he compared to how dogs agitate him, and sneered that she was a hypocrite for complaining about sexism given how she sometimes dresses:
I find it very funny and ironic that she would jump on this bandwagon. For a long time, her website featured an array of photos of her in a diaphanous white outfit, posing on a beach. No metal bikinis or such, but they were not innocuous writer headshots either. One of them, with her recumbent on the sand with legs exposed, made her somewhat attractive. I also recall she's fond of wearing tight-fitting gowns and plunging necklines when she attends cons and award ceremonies.
I'll have to add "phony" to "incompetent" and "arrogant" in the mental tags I've assigned her.
Girls give up the right to complain about sexism unless they dress conservatively. It is known.
Anyway, if Fodera was angry before, this coverage made him really angry. How dare someone quote him and link to the full quotes! He penned this threat:
I will note that since I now have the name of the writer, and I can prove that the quotes were edited to change their meaning, I have a very good case for a libel suit. I suppose no one noted that I work in the legal profession within the publishing industry, and have taught college courses on the subject.
BTW, as of now, it looks like the article was "shared" 1,200 times already. That makes each of those sharers a part to the libel, and makes each of them equally culpable in the eyes of the law. I'll speak to my attorney first thing tomorrow.
The Streisand Effect predictably ensued. Multiple people — author John Scalzi, for instance — wrote about Fodera's bumptious legal threat, and the Daily Dot article probably got several orders of magnitude more traffic than it otherwise would have.
Though Fodera works "in the legal profession" and has "taught college courses," he does not appear to have a firm grasp of the subject matter.
First, Fodera thinks that the Daily Dot article is defamatory. It isn't. The article quotes things he wrote on the internet. It links to his original text so that the readers can judge for themselves. Fodera seems to think that the Dot article wrongly paraphrases or selectively quotes him. That's a tendentious and unpersuasive reading. Take, for instance, how the Dot quoted and paraphrased him in his dog analogy:
He calls Kowal, who is a Hugo-award-winning author, "an unperson… no one you should have heard of." Then he goes on to compare her to an aggressive dog:
“Oh, I know she has no power over me. Still, I get agitated when I think about her. There was a lot of good I could have done for SFWA, and she was a primary factor in my not being able to do it… In a way, it's like my reaction to dogs… My brain kept saying 'it's a service dog; they're well-trained; he won't hurt you,' but my body wanted nothing more than to dump my bowels and flee…”
But the Dot directly links to Fodera's own words. The Dot description and partial quote is fair and accurate. And the readers can determine that for themselves by following the link.
Is it possible for misquoting someone to constitute defamation? Yes. But the bar is set very high. In Masson v. New Yorker Magazine, the United States Supreme Court examined whether fabricating quotes and attributing them to an interviewee could be defamatory. The court applied the familiar "gist" or "sting" doctrine, saying that misquotes are only "false" for defamation purposes if they materially change the meaning of the quote:
We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan, 376 U. S., at 279-280, and Gertz v. Robert Welch, Inc., supra, at 342, unless the alteration results in a material change in the meaning conveyed by the statement. The use of quotations to attribute words not in fact spoken bears in a most important way on that inquiry, but it is not dispositive in every case.
Here, the Dot has not materially changed the meaning of Fodera's words. Frankly I don't think they've changed the meaning at all. Moreover, they've linked the words so the reader can review them directly. The Supreme Court's discussion of misquotes was premised in part on the notion that the misquote misleads the reader and gives them no notice that the quote might not be exactly what the speaker said; the Dot's article serves up a way for the reader to read the underlying words if the paraphrase or partial quote interests them. Courts increasingly recognize that linking to one's sources for a challenged statement makes it less likely that it will be treated as defamatory.
Fodera's claim of defamation therefore appears specious.
Second, Fodera appears confident that if the Dot article is defamatory (and it isn't), then anyone who merely links to it is a participant in defamation. That confidence is misplaced; it's not clear whether Fodera is ignorant of the law or merely argumentative about it. While not firmly established in every jurisdiction, the emerging trend is for courts to rule that merely linking to defamatory content does not republish it for defamation purposes. Eric Goldman has good coverage of this issue.
New York, regrettably, has only a mediocre anti-SLAPP statute that wouldn't be of assistance if Fodera is foolish enough to follow up his threats with a lawsuit. But as the sad case of Rakofsky v. The Internet demonstrates, New York judges are still prepared to dismiss frivolous and censorious lawsuits. Moreover, any lawsuit would be an extinction-level event for Fodera's reputation and credibility in the publishing industry, as it ought to be. I would not hesitate to light the Popehat Signal to find pro bono assistance for anyone Fodera menaces.
It's banal to be a trash-talking blowhard on the internet. Fodera could have gotten away with that — there are so many blusterers, and so little time to care about them. But Fodera has transformed himself into something else, something more iconic: the big talker who can dish it out but can't take it. Nobody respects that person. Nobody should. Fodera strikes me as a sad and stunted person, lashing out at someone for holding a mirror up to him.
I sent Mr. Fodera an email seeking comment, and asking for responses to some specific questions, but have not heard back as of the time of this writing.
Dr. Nicholas Weaver is an expert on network security issues. The media frequently seeks him out for input on stories involving the intersection of criminal justice and computer security, like Silk Road and leak investigations. Fair disclosure: he's also an online friend and an expert on one of my cases.
SlashGear is an also-ran tech site that rewrites stories badly.
Case in point: SlashGear took this story from Krebs On Security about criminal charges against Bitcoin traders in Florida. Dr. Weaver was quoted as an expert in that story:
Nicholas Weaver, a researcher at the International Computer Science Institute (ICSI) and at the University of California, Berkeley and keen follower of Bitcoin-related news, said he is unaware of another case in which state law has been used against a Bitcoin vendor. According to Weaver, the Florida case is significant because localbitcoins.com is among the last remaining places that Americans can use to purchase Bitcoins anonymously.
“The biggest problem that Bitcoin faces is actually self-imposed, because it’s always hard to buy Bitcoins,” Weaver said. “The reason is that Bitcoin transactions are irreversible, and therefore any purchase of Bitcoins must be made with something irreversible — namely cash. And that means you either have to wait several days for the wire transfer or bank transfer to go through, or if you want to buy them quickly you pay with cash through a site like localbitcoins.com.”
But when Bittany Hillen penned an awkwardly-worded and uninformative summary of the story for SlashGear, she turned Dr. Weaver from a quoted expert to a criminal defendant:
Yesterday, Florida law enforcement announced the arrests and criminal charges against three individuals under anti-money laundering laws: Michell Abner Espinoza, Pascal Reid, and Nicholas Weaver.
Dr. Weaver captured a screenshot in case SlashGear tries to memory-hole this. He should feel happy he didn't give a quote about the Woody Allen case, I guess.
Dr. Weaver isn't the suing type. But, hypothetically, could he sue for defamation? Sure.
publication of a statement of fact
that is false,
has a natural tendency to injure or which causes "special damage," and
the defendant's fault in publishing the statement amounted to at least negligence.
Here, SlashGear and Hillen published a false statement of fact about Dr. Weaver — that he had been charged with a crime. The publication was unprivileged, meaning that it was not immunized from liability by statute (for instance, things you say as a witness in court, or in pleadings filed in court, are generally privileged from liability). Accusing some of being charged with a crime is the sort of thing that has a natural tendency to injure, which is why it is often categorizes as "libel per se" — which merely means that the plaintiff doesn't have to prove that he or she suffered damage to reputation, and gets at least nominal damages without such proof.3 Dr. Weaver probably couldn't prove actual or special damages to his reputation — it's doubtful that anyone gives a shit what a clumsy SlashGear rewrite says. But he could get at least nominal damages because of the nature of the accusation.
That leaves us with the question of fault. As I explained in the context of the Crystal Cox case, at least if the issue being discussed is a public one, a defamation claim always requires proof of some level of fault on the part of the defendant. The level of fault depends on whether the plaintiff is a mere private figure (in which case the plaintiff may only need to prove that the defendant got the story wrong out of negligence) or a public figure (in which case the plaintiff would need to prove actual malice, meaning knowledge that the story was false or reckless disregard to its truth or falsity.) There are complexities and gradations; people can be public figures for limited purposes.
Here, the transformation of Dr. Weaver from respected expert to criminal defendant is a result of an incompetent rewrite of a news story. That's at least negligence. If Dr. Weaver is treated as a private figure he would prevail. But since he's frequently quoted in the news on stories like this, he may well be treated as a limited purpose public figure in the context of coverage of network security issues in the news. So the question is probably whether an incompetent rewrite of a story rises to the level of reckless disregard of the truth as required by the actual malice standard. The answer is almost certainly not. "Reckless disregard" requires more than incompetence; it requires conscious disregard of doubt. Here there's no indication that anyone consciously regarded or disregarded anything.
So: Dr. Weaver probably can't prove the requisite fault against SlashGear and Hillen, even if he wanted to. They live to promote shitty rewrites another day. Fortunately for Dr. Weaver it's difficult to imagine anyone taking SlashGear seriously enough for their incompetence to hurt his reputation.
Remember: just because something is written in a "story" by a "journalist" on a well-trafficked website, that doesn't mean it's anything other than incompetent drivel.
Edited to add SlashGear corrected the story to remove the reference to Dr. Weaver as a defendant, but as of this writing has not offered any retraction or apology. Classy.
Murder was the case.
No, wait. Mockery was the case.
Somebody was mocking Rhode Island state Representative Scott J. Guthrie. And not even because of his 'stache! No, someone put up a clearly satirical Facebook page about Guthrie, mocking him and attacking his political positions.
Guthrie, as an adult, a responsible citizen, and a government official who cares about the public fisc, laughed it off and talked to reporters about how it demonstrated that his ideas are right.
No, wait. That's the bizarro-America response.
This is the real America — the America of butthurt, the America of snivelers, the America of "I'm entitled not to be offended," the mewling o-help-me-nanny-state America.
So Scott Guthrie went to the cops, and the cops conducted a full investigation — including subpoenas — before realizing that putting up a satirical Facebook page is not a crime, even in a world where we have broad and vague and unprincipled "cyber-harassment" laws.
How extensive was the investigation? Consider the police report yourself.
It turned out that the satirical page was created by Republican Sen. Nicholas Kettle. Guthrie is a Democrat. Kettle, naturally, faced no official consequences; the young communications director who helped him make the page was fired. The communications director used legislative resources, a computer, to create the page, you see. There was no consequence for Guthrie using substantial law enforcement resources to investigate being made fun of.
Kudos are due to law enforcement for resisting the demands of a state legislator:
But on advice of a lawyer in Attorney General Peter Kilmartin's office, they concluded the creation of this fake Facebook page did not constitute "cyber-harassment."
After reviewing the case, "I was informed that a majority of the posts were constitutionally protected activity," and the others "would not have caused substantial emotional distress which is another required element of the crime," the lead detective, Kevin Harris, wrote in a report obtained by The Journal on Tuesday.
After speaking to Assistant Attorney General Ronald Gendron, "it has been determined that there is insufficient evidence to go forward with charges at this time," Harris wrote.
It would have been nice if they had come to that obvious assessment earlier, after a smaller expenditure of taxpayer funds. In their defense, they do far better than most.
But Guthrie may not be done:
But the case may not be over. Kilmartin spokeswoman Amy Kempe said Gendron provided an "initial assessment," but the attorney general intends to review the case. Guthrie said he may now take his complaint to federal authorities.
Scott Guthrie, you petulant, pusillanimous prat, you're a disgrace. You're a disgrace to adulthood. You're a disgrace to American citizenship. You're a disgrace to public service. Stop spending the taxpayers' money as an unguent for your butthurt and react like a grown up with some grasp of American values. Retaliate with a page about Kettle. It should be easy. Dude looks like a spotty douchebro.
(Hat tip to Nicholas Cote.)