Tagged: Popehat Signal

Popehat Signal: Help Fight the Censorious Villainy Of Roca Labs

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New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

It's time to light the Popehat Signal to find pro bono assistance for citizens threatened with a bogus and censorious lawsuit.

The cartoonish villain of this story is Roca Labs, whose belligerent attempts to silence critics inspired my post last month. Roca Labs, you may recall, produces a pink slime that one is supposed to eat to suppress the appetite. Roca Labs is pathologically adverse to criticism, and therefore has hit upon an increasingly familiar tactic — they require at least some of their customers to sign contracts promising not to criticize them at all. Based on those contracts, they filed a lawsuit against Pissed Consumer.com, a gripe site that printed complaints by their customers. Their quasi-legal flailing became more desperate when First Amendment heavyweight Marc Randazza took up PissedConsumer.com's defense.

Now Roca Labs has crossed the Rubicon from mildly entertaining legal buffoonery to outright despicable abuse of the system calculated to suppress not only the right to free speech but the right to petition the government. As TechDirt first reported, Roca Labs has now sued — in Florida — three of its customers from other states. What's notable about these three customers? One of them provided witness testimony in Roca Labs' lawsuit against PissedConsumer.com. Roca Labs has previously complained about many different customers exercising free speech, but now wantonly targets just these three consumers, one of whom just happened to be a witness against them.1 Roca Labs is demanding damages, attorney fees, and an injunction prohibiting these consumers from criticizing Roca Labs. As Techdirt points out, Roca Labs' attorneys rather comically assert that the defendants' criticisms are "defamation per se" because they agreed in advance contractually that they would be. That's not how it works, dipshits.

Roca Labs isn't a full Prenda yet, but by God, it's trying.

Those three defendants need help. Even when a suit is patently frivolous and vexatious, defending it — particularly in a distant state — is ruinously expensive. That's Roca Labs's purpose — not to win on the merits, but to silence critics through cynical abuse of the legal system. These three defendants can't afford to hire lawyers in Florida. If they don't get help, Roca Labs wins through manipulation of a broken system.

You can help. If you are a lawyer admitted in Florida, you can act, at least, as local counsel. If you are a lawyer in another state, you can help Florida counsel. If you're just someone with a voice on the internet, you can help get the word out about Roca Labs and its contemptible behavior, and help these people find pro bono legal assistance. (Some sort of fundraising campaign, at least for costs, is also a possibility, though the defendants should get independent legal advice about that.) You can also get the word out about the unethical and repulsive behavior of the attorneys who filed this suit, Nicole Freedlander and Paul Berger of the "Hurricane Law Group." Berger has also been involved in threatening bloggers and witnesses.

And finally, please help circulate and promote this question: why would any sensible person consume a weight-loss product from a company that sues customers who criticize its safety, value, or efficacy? Does that sound safe to you?

By the way, this is not the end of Roca Labs' bizarre behavior — stay tuned for more.

Fight evil.

Colorado ISP Peak Internet Sues Customer For Bad Online Reviews [Updated With Popehat Signal, Resolution]]

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[Update: see resolution at end of post]

Peak Internet of Colorado offers ISP services to the Pikes Peak region. Russell Petrick tried their services and was disappointed. He says that their speed was consistently below the benchmark they advertised. When Petrick complained, he says that Peak Internet told him he was getting above their stated minimum speed, so he should be happy with the 12 Mbps he was getting, even if it didn't reach the advertised 20 Mbps top speed.

Petrick complained online on Yelp and elsewhere. Peak Internet, an American company that values American ideals like freedom of speech, recognized Petrick's right to complain and responded forthrightly to the complaint. No, wait, Peak Internet strongly disagreed with Petrick's complaints so it responded online with specific facts and circumstances showing how particular elements of Petrick's complaints were untrue.

Wait, no. I forgot. This is America. So Peak Internet sued. They hired attorney Ryan J. Klein of Sherman & Howard and filed a complaint against Petrick in Teller County District Court for defamation and defamation per se. The complaint is here.

Peak Internet's complaint is bare-bones and notably vague and ambiguous. This is how it explains the basis for accusing Petrick of defamation:

The defamatory statements made by Petrick about Peak Internet include, but are not limited to, false statements about the speed of services provided by Peak Internet and responses to complaints about alleged issues with the speed of services provided by Peak Internet.

Notably, Peak Internet does not specify exactly what part of what Petrick said that was false, or exactly how it was false. Remember what I always say: vagueness in defamation claims is a hallmark of meritless thuggery. Here, Peak Internet has used vagueness as a strategy to (1) obscure whether it is suing based in part of protected statements of opinion, (2) hide exactly which statements it contends to be false, avoiding early proof that the challenged statements are true, and (3) increase the costs and pressures of litigation on Petrick to shut him up and deter others from criticizing Peak Internet. You can't tell from the complaint, for instance, whether Peak Internet's argument is "our speeds were never that slow that often, he's lying" (which might be a valid defamation claim) or "his arguments are unfair because these speeds are above the guaranteed minimum speed and we don't promise the top speed all the time" (which would be an invalid attack on a protected opinion).

Peak Internet's ploy may not play out the way they hoped. Already a local news station ran with the story, allowing Petrick to highlight what appears to be well-documented evidence supporting his complaints about the speed.

I wonder: did attorney Ryan J. Klein explain the Streisand Effect to his client Peak Internet before filing the lawsuit?

It's not clear to me whether Petrick has counsel. If he wishes, I would be pleased to light the Popehat Signal to find pro bono counsel. Meanwhile, I think the story of an ISP that sues its customers over criticism is one that needs a little more attention. Do you agree? Have at it.

Thanks to tipster Carl.

Updated to add: commenters here and on Twitter point out that Peak Internet has gotten four abrupt good reviews on July 30 (the day after the local news story), all from first-time reviewers, all praising Peak Internet. No doubt a coincidence.

Second Update:

Mr. Petrick has sought my help. I am lighting the Popehat Signal.

New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

Mr. Petrick is disabled and does not have funds to hire an attorney to defend his free speech rights. Is there a lawyer out there who can help him in Teller County, Colorado?

We have the right to free speech — in theory. In practice, companies like Peak Internet, and lawyers like Mr. Klein, can trammel that right because the system lets them. It can be ruinously expensive to defend even the most transparently bogus and censorious case. To fight this trend of companies suing to remove bad reviews, we need people to step up. Might it be you? If not, will you help spread the word?

Good Update: I am reliably informed that Peak Internet and Mr. Petrick have resolved the case satisfactorily and Peak will be dismissing its case with prejudice — meaning permanently. Congrats to Mr. Petrick, a nod to Peak Internet for making the right decision after the wrong one, and thanks to several Colorado lawyers who offered to help.

Popehat Signal Update: Dream Team Victory In Texas

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I bring good news: top-notch work by generous and dedicated lawyers has produced a free speech victory in Texas.

Last year I lit the Popehat Signal seeking help for J. Todd DeShong, a blogger and AIDS activist. DeShong, a longtime critic of the nutty and conspiratorial junk science occasionally directed at AIDS issues, ran afoul of Clark Baker, an ex-cop and full-blown AIDS denialist who offers "expert" "witness" services. You may recall my description of Baker's phone call to DeShong's mother:

I interviewed Mr. DeShong's mother, a sweet lady with a spine of Texas steel. She told me about how Mr. Baker called her out of the blue and ranted at her. Mr. Baker angrily denounced her son, and told her that, as a police officer, he knew about dangerous people, and that Ms. DeShong should fear that her son would kill her in her sleep. He also threatened that he was arranging for doctors Mr. DeShong had criticized to sue him for defamation. Ms. Deshong pointed out that such a suit would bring no joy; Todd DeShong is not a rich man. "But you have money, right? You have a house, right?" responded Mr. Baker, implying that he might put her assets at risk. "He thought he could intimidate me. He didn't know who he was dealing with," said Ms. DeShong, who sounds like a good person to have at your back.

Baker sued DeShong in federal court in Texas over DeShong's criticism of Baker's AIDS-denialist rhetoric and his "expert" "witness" service the HIV Innocence Group. Baker claimed that DeShong's criticism was not only defamation, but violation of the HIV Innocence Group's trademark rights in its name. Baker's motive may have been mixed: he may have wanted to silence DeShong, but he may also have wanted to use the federal suit to pursue his conspiracy theories about AIDS researchers. I cannot say what his lawyer was thinking, if he was.

Such federal litigation is ruinously expensive to defend; DeShong couldn't afford a defense and Baker might have succeeded in silencing critics through abuse of the legal system. Fortunately, lawyers who care about free speech rode into the breach: D. Gill Sperlein, Paul Alan Levy of Public Citizen, Gary P. Krupkin, and Neal A. Hoffman filed motions to dismiss (attacking the thoroughly specious trademark claims) and a strong motion under Texas' relatively new anti-SLAPP statute.

Last week the dream team won. United States District Judge Sam R. Cummings granted DeShong's motion to dismiss the trademark claims, and then refused to hear the state law claims and dismissed them. The court's ruling held the line on a key free speech concept: using a company's name to criticize it does not violate the company's trademark in the name. Baker had claimed that sites like "HIV Innocence Group Truth" violated trademark rights and were part of an effort to destroy him by discrediting him. But Judge Cummings pointed out "[n]o reasonable person would take one look at DeShong's website and believe that Baker authorized its content." Moreover, the court explained, trademark law doesn't protect a company from criticism. The Lanham Act protects a competitor from profiting from the misuse of another company's trademark; it does not protect a company from vigorous and even ruinous criticism employing its name. Judge Cummings also rejected Baker's argument that DeShong violated trademark rights by using a URL likely to dominate search results for "HIV Innocence Group." That theory, too, would have allowed the Bakers of the world to abuse the Lanham Act to prevent criticism.

I suspect Paul Alan Levy, who has done a lot of important work protecting "gripe sites" and critics from bogus trademark claims, had a strong hand in winning this issue.

Having dismissed the federal trademark claim, Judge Cummings declined to exercise supplemental jurisdiction over the state claims like defamation, finding that state issues (like application of Texas' anti-SLAPP statute) would predominate over federal issues. Therefore he didn't reach the anti-SLAPP motion. That's an increasingly common approach by federal judges in such cases; it's what the judge did in the censorious Naffe case in which I was co-counsel.

Baker has appealed, and could conceivably re-file his censorious screed in Texas state court. If he does, the dream team's work on the anti-SLAPP motion is already done, and I suspect Baker will find no joy before a Texas state judge. I'd lay very good odds that Baker will lose his appeal. Meanwhile, I hope that DeShong's legal team seeks and recovers legal fees from Baker based on winning the Lanham Act claim. The suit was contemptible and represents exactly the sort of case in which federal courts should use their statutory power to award attorney fees to deter such abuse of the system.

Please join me in expressing admiration and thanks to Gil, Paul, Neal, and Gary. Their generosity with their time and talents didn't just help DeShong's free speech: it helped yours. Contributions like theirs are essential to defending free speech principles in a broken system that allows unscrupulous clients and lawyers to silence dissent by inflicting ruinous defense costs. They are heroes.

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

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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.

Popehat Signal: Help An Oregon Blogger Exposing Telemarketing Violations

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New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

New Popehat Signal courtesy of Nigel Lew. Thanks, Nigel!

Today I light the Popehat Signal for an Oregon blogger threatened with a defamation lawsuit over statements on Telecom Compliance News Press, his blog about various telemarketing schemes. You know those "Rachel from Card Services" calls to your cell phone that I've written about? He writes about that sort of thing. The subjects of his posts have threatened him before.

Recently he received an email from and attorney named F. Antone Accuardi. Mr. Accuardi previously been mentioned as associated with entities accused of telemarketing abuse, and is a defendant in a proposed federal class action suit alleging telemarketing violations, which allegations he denies. In Mr. Accuardi's email to the blogger, he threatened as follows:

Pursuant to Oregon statute I am writing you to demand that you retract your defamatory statements that you have ubiquitously posted on your internet blog, telemarketerspam/wordpress.com. I do not own or control any of the businesses you falsely associate me with, do not receive a dime for CNAM, do not know or have anything to do with Louis Martinez or any company he may have an interest in, and have no offshore bank accounts where I hide my ill gotten gains. Most importantly, I am not the mastermind behind a nation wide conspiracy to violate state and federal laws by initiating, facilitating or otherwise participating in any telemarketing scheme, nor have there been any FTC complaints alleging that I did anything that might initiate such complaints. Put simply, you posted stories purporting to be facts with absolutely no proof whatsoever as to their veracity. Now you must remove it, along with a statement to the effect that you were wrong. Frankly, I could care less if you do, I am going to sue you in any event. Failure to provide this demand would eliminate my probability of getting presumed, general damages in my suit against you for, among other things, libel per se. FYI, I am fully cognisant of Oregon's SLAPP statute and have already compiled substantial evidence that I will prevail in this case, so bring it on.

This should also serve as notice to you that you are going to be sued and that you are required to preserve all of the evidence in your possession or control. Failure to do so may result in a motion for spoliation of evidence instruction to the judge and or jury that hears the case, allowing them to find that such destruction of evidence can be inferred negatively against you at trial.

See you round the courthouse…..

Thank you for your prompt attention in this matter.

I have not investigated whether the blog made the statements Mr. Accuardi attributes to it, nor do I know whether the blog has a factual basis to make those statements if it did. However, this emailed threat has many of the hallmarks of vexatious harassment. Though he specifies specific statements alleged to be false — something of a rarity — Mr. Accuardi ignorantly or deceitfully misstates Oregon law. The Oregon retraction law to which Mr. Accuardi alludes allows a demand for retraction only within 20 days of when the subject actually learns of the publication. The blog's last publication was in February 2013. Mr. Accuardi has known about the blog, and followed it, since 2012. He corresponded with the blogger in July 2012 and corresponded with me about it that same month. So: either Mr. Accuardi hasn't bothered to read the statute he is invoking, or he is hoping to deceive the blogger about its terms through bluster. The rest of the email — bumptious and unprofessional — also smacks of censorship rather than merit.

The best way to resolve such a claim is when both parties are represented by competent counsel. Unfortunately, our legal system makes it ruinously expensive to defend even a meritless claim. As a result, people are often chilled into silence about important issues — like telemarketing abuse — not justly, but out of fear of financial ruin. That's why I invoke the Popehat Signal. I make no prejudgments about whether the Telecom Compliance News Press said something about Mr. Accuardi that was incorrect. That's a question best resolved through exacting analysis of Mr. Accuardi's claims and, if appropriate, thorough discovery into his interactions with telemarketing companies. But a blog exposing telemarketing misconduct should not be shut down out of fear generated by a threat like this one. If you are admitted in Oregon, please consider contributing pro bono help to the blogger: advice at this stage, and perhaps defense if the threat becomes fact. If you know anyone admitted in Oregon who may help, please spread the word.

Edited to add: Three attorneys within a few hours. You people are awesome.

Popehat Signal Update: Dream Team Takes On Litigious AIDS Denier In Texas

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Sure, the Popehat Signal is fun to light up, but whether it does anything is entirely out of my hands. The signal depends on dedicated lawyers willing to devote valuable time and effort to protect freedom of speech. Without them I'm just a guy with a weird searchlight cartoon who likes to say "taint" a lot.

That's why I am thrilled — and thankful — to report on the response to last month's Popehat Signal seeking help for a blogger sued in Texas by an AIDS denialist.

You might recall from that post that Clark Baker is suing Todd Deshong for trademark violations and defamation because Deshong has been challenging and criticizing Baker's junk-science rap. Baker even asserts that it is defamatory to say that his bogus scientific theories are a hoax:

They allege that Plaintiff Baker is incompetent, that he knowingly makes false and misleading representations to the public, that his legal and scientific theories with regard to HIV are a hoax, that Baker’s reputation as a former LAPD police officer is misleading, and other personally disparaging remarks.

The response to the signal was nothing short of spectacular. Today a team of four lawyers representing Todd Deshong pro bono filed two motions: a motion to dismiss the trademark claims and a a motion to strike the defamation claims under Texas' robust anti-SLAPP statute. The exhibits in support of the motions are here.

This is top-notch legal work that would cost you tens of thousands of dollars if you were paying for it. Deshong is getting it for free because the lawyers on this team believe in free speech and oppose abuse of the legal system to suppress it. Here's the team, in no particular order:

D. Gill Sperlein, a veteran First Amendment litigator well known to my colleagues in the First Amendment Lawyers Association, who is generous with pro bono work. Gill stepped in early and took the lead in Deshong's defense.

Paul Alan Levy of Public Citizen, whose exploits are well known to Popehat readers. Paul is one of the foremost lawyers in the country on the issue presented in the motion to dismiss: the abuse of trademark to suppress criticism.

Gary P. Krupkin, an experienced defense attorney, litigator, and free speech defender who has previously come to the aid of bloggers in Texas, and whose formidable skills have been sufficient to talk sense into me on more than one occasion.

Neal A. Hoffman, an up-and-coming litigator at the Houston firm Bush & Ramirez P.L.L.C. It's no easy task to get a firm to sign on for a pro bono project like this; Hoffman and his firm are to be commended, and his dedication and skill here predict a successful career.

[I'd like to point out that Leif Olson, who wrote a memorably awesome letter to a threatening dentist, also offered to help. But only so much badass can fit on a team at one time.]

The motion to dismiss establishes conclusively that Deshong's use of Baker's "HIV Innocence Project" on his critical blog "HIV Innocence Group Truth" is not a trademark violation, but rather classic criticism protected by the First Amendment. You can read Paul Alan Levy's explanation in his blog post. The anti-SLAPP motion demonstrates that Baker cannot prevail on his defamation or business disparagement claims because they are barred by the statute of limitations, because they improperly attack statements of opinion, and because Baker can't prove falsity or malice, as required.

I never predict the outcome of litigation. But Todd Deshong has a hell of a team, and they have the right of it, and I like their chances.

People get threatened with bogus defamation suits, or even sued vexatiously, all the time. One in a hundred gets this type of representation. Too many can't afford it, and too many are intimidated by the prospect of financial ruin into silence. Their free speech rights are quelled by bad actors willing to abuse the legal system. That's why public service like this is so important, particularly when the case involves such a crucial issue — the right of citizens freely to critique the propagation of junk science. Please join me in applauding these lawyers and their firms. Please consider a donation to the legal defense fund, which will cover hard expenses. And please keep doing what you can to promote freedom of expression in the face of legal threats.

Popehat Signal: Vengeful AIDS Denialist Sues Critic In Texas

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It's time for the Popehat Signal.

New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

New Popehat Signal courtesy of Nigel Lew. Thanks, Nigel!

Today I light the signal to ask for help for a blogger who is being sued in federal court in Fort Worth for writing about and criticizing a thoroughly creepy AIDS denialist. By AIDS denialist, I mean someone who promotes the belief that HIV does not cause or lead to AIDS. The lawsuit is contemptible. The defendant needs help. Can you step up?


A Statement of Support in the Event of Legal Threats Or Lawsuits

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Elise Matthesen is a writer, artist, and activist. Sigrid Ellis is a writer, editor, blogger, and air traffic controller. Both are active in what I'll refer to as the fantasy and science fiction community.

Ms. Ellis gave a party at Wiscon; Ms. Matthesen attended. Ms. Matthesen experienced conduct she believed was harassment, and reported it. She later wrote a post — carried by several prominent figures in the science fiction community — about the process of reporting harassment at conventions. Ms. Ellis identified the person Ms. Matthesen reported.

Though I discuss harassment in the science fiction, fantasy, and gaming community on this blog, the purpose of this post is not to discuss that incident, or the nature of the conduct that led to the report.

Rather, I write to state my support.

As far as I know, Ms. Ellis and Ms. Matthesen have not received specific legal threats.

However, in the event that Ms. Ellis or Ms. Matthesen do receive legal threats or are subjected to litigation, I have agreed to give them my assistance in securing an effective and vigorous defense. That assistance will include the Popehat Signal. Thanks to the generosity of readers and the devotion of the community of First Amendment attorneys (including the First Amendment Lawyers Association, of which I am a member), the Popehat Signal has often been successful at pairing defendants with pro bono lawyers who have produced excellent results. I have also offered, to the extent appropriate and (depending on the jurisdiction) available, my personal assistance, which has also led to some success. Finally, I will do my part to encourage the Streisand Effect.

Does it sound like I boast? Maybe it does. Take it this way: I am utterly, unreservedly, mercilessly serious.

Conduct yourself accordingly.

Popehat Signal: Seeking Help In A Troublesome Massachusetts Defamation Case

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The Popehat Signal

It's time for the Popehat Signal. I'm looking for attorneys admitted in Massachusetts to represent both named and anonymous online commenters. They've been sued by a man named Jonathan Graves Monsarrat based on a series of LiveJournal posts and comments.

Monsaratt's lawsuit is here. You can see LiveJournal threads talking about the lawsuit here and here.

The lawsuit targets posts and comments about Monsarrat's January 2010 arrest. Various sources reported that police arrested Monsarrat when they found him at a loud Somerville party that featured (gasp) underaged drinking. The charges against Monsarrat were later dismissed. Monsarrat was already known locally. Some of his fame was benign — he ran a whimsical message board called the "Wheel of Questions" where people could leave notes and have them answered. Some of his fame, on the other hand, was not positive. In 2003 the MIT and Harvard student papers reported complaints by participants in a Harvard-MIT-Wellesley matchup program he created and operated; participants asserted that Monsarrat chose people he wanted to meet from the matchup he was running and persistently contacted them in a way they found harassing. He was quoted thus:

Monsarrat, who also participated in the matchup service, said that he had heard of complaints about his personal use of data from the service, but said “I kind of don’t get that. I signed up like everybody else. There was no privacy policy.”

These reports led to a certain amount of internet infamy, including an unflattering entry on Encyclopedia Dramatica.2 Monsarrat filed a DMCA notice against Encylcopedia Dramatica seeking to remove among other things, pictures of him they posted in the course of ridiculing him.

When Monsarrat's arrest broke in 2010, people began writing about it, and him, and his past, on LiveJournal. People writing about it referred to past stories about him in connection with the matchup incident, and other critiques of him. As is common online, many criticisms were vivid and accusatory and hyperbolic. That's the basis of Monsarrat's suit against two named defendants (a blogger and a poster on LiveJournal) and multiple anonymous commenters.

Monsarrat's complaint cites some statements made about him which, if untrue, could be defamatory. So why do I think this case is worthy of the Popehat Signal? It's because the complaint is overtly censorious and abusive of the legal process in multiple ways.

First, the complaint jumbles allegedly false statements of fact together with clear statements of opinion and insulting rhetoric. The former can be defamatory; the latter is protected by the First Amendment.

Second, the complaint jumbles together numerous defendants and suggests that they are all jointly responsible for each others' words. But under Section 230 of the Communications Decency Act content providers — like bloggers — can't be held liable for the words of their commenters. Moreover, Monsarrat's conspiracy theory appears to be a method to target people for protected speech (like insults or statements of opinion) on the theory that the protected speech was connected to non-protected speech (like false accusations of fact). Practically speaking, that theory means if you post an insult or opinion about someone in a thread that also contains a false statement by someone else, you could be sued for conspiracy to defame. The chilling effects are obvious.

Third, the complaint suggests that bloggers, and commenters, cannot report and comment based on stories published in newspapers. There can't be any dispute that a local paper reported on Monsarrat's arrest and that student papers reported on the matchup incident. Misstating what's in those articles can be defamatory, but suing people for repeating what was published in the paper — without any basis for asserting they knew it was false — seems overtly censorious, and faces substantial legal barriers.

Fourth, Monsarrat cites some commenters merely for linking to other sites, like Encyclopedia Dramatica and the Harvard student paper. But there is — thankfully — an emerging legal consensus that linking to content does not constitute republication of that content for defamation purposes.

Fifth, for some reason, it appears that Monsarrat has waited to the very ragged edge (if not beyond) of Massachusetts' three-year statute of limitations for defamation actions. That does not support the assertion that he was actually harmed; it appears tactical.

Sixth, Monsarrat's non-defamation causes of action appear highly dubious. His "common law copyright" claim is based on uses of content that are clearly intended to critique or satirize. His commercial claims seem to rely on the highly dubious proposition that the defendants were involved in commercial activity. In short, the other claims appear to be a kitchen-sink approach. And, of course, there's Butthurt In the First Degree, also known as Intentional Infliction of Emotional Distress.

The Streisand Effect may yield results that Monsarrat will regret. He needs to prove that the things said about him are untrue. A lawsuit like this seems designed to generate widespread publicity and encourage any witnesses that might support the defendants to come forward.

The complaint is highly vulnerable to attack. The named defendants need legal help. One of them — Ron Newman — helps maintain a LiveJournal community. Like many Americans, he's out of work, and like almost all Americans, he'd find it impossible to fund the defense of a lawsuit. Lawsuits are ruinously expensive to most folks — which is exactly why merely the threat of a defamation suit can silence people, and why plaintiffs can abuse the legal system to chill expression.

Someone may have uttered false and genuinely defamatory words against Monsarrat; I don't know. I do know that defamation cases — particularly ones where the plaintiff is pursuing extravagant legal theories that threaten everyone's speech — are best resolved with vigorous and capable counsel on both sides. Here Monsarrat's complaint, whatever elements of merit it might have, is framed in a way that should be of grave concern to anyone who values freedom of expression and opposes legal bullying.

So: if you are a Massachusetts lawyer, please consider helping the named defendants. I suspect that First Amendment lawyers across the country will be willing to offer support and advice. In addition, the anonymous commenters require counsel to help them oppose discovery calculated to pierce their anonymity.

Thanks, as always, for standing up to defend free speech.

The Popehat Signal: Stand Against Rank Thuggery In Ohio

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The Popehat Signal

It's time for the Popehat Signal: a call for lawyers and citizens to assist a litigant in standing up against unprincipled censorship.

My friend and colleague Paul Alan Levy of Public Citizen — fresh off a free speech victory against the infamous Charles Carreon — has asked for assistance in Medina County, Ohio. This is a classic case where pro bono assistance can help thwart an unprincipled and censorious plaintiff's manipulation of the flaws in our judicial system.

The plaintiff in question is Med Express, a company that sells refurbished medical equipment on Ebay. They have sued Ebay and a South Carolina resident named Amy Nicholls. I will let Med Express' complaint speak for itself:

6. On February 12, lOB, Nicholls paid for the item and shipping via Pay Pal. Promptly after receiving Nicholls' payment, Med Express took the equipment to the Valley City post office. where it was weighed and shipped to Nicholls. Med Express paid the full amount of the shipping cost, but for some reason unknown to Med Express, the equipment was received by Nichols with $1.44 postage due.

7. When notified of the problem, Med Express immediately offered to reimburse Nicholls for the postage due amount. Despite this offer, and before giving Med Express a chance to reimburse her, Nicholls on February 26, 2013, apparently as a result of the $1.44 postage due, posted negative feedback and comments for the transaction on Ebay's website and gave Med Express low ratings in the Detailed Seller Ratings section of Ebay's Feedback Forum, resulting in an unfavorable feedback profile for Med Express. In so doing, Nicholls falsely and deliberately slandered the good name and reputation of Med Express.

You read that right — Med Express admits that Nicholls received a package from them postage due, and is suing her for complaining about it, suggesting that she should have just taken reimbursement and shut up. Med Express is seeking damages and an injunction forcing the removal of Nicholls' feedback. That feedback was, by Med Express' own description, true:

Order arrived with postage due with no communication from seller beforehand.

When Mr. Levy pointed out to James Amodio, attorney for Med Express, that true statements are protected by the First Amendment, Mr. Amodio responded with an open, contemptuous, and contemptible threat to abuse the legal system:

I contacted James Amodio, Med Express’s lawyer, to explain to him the many ways in which his lawsuit is untenable. He readily admitted that, as the complaint admits, everything that the customer had posted in her feedback was true; he did not deny that a statement has to be false to be actionable as defamation; but he just plain didn’t care. To the contrary, he told me that I could come up to Medina, Ohio, and argue whatever I might like, but that the case was going to continue unless the feedback was taken down or changed to positive. And he explained why his client was insisting on this change — he said that it sells exclusively over eBay, where a sufficient level of negative feedback can increase the cost of such sales as well as possibly driving away customers.

This is the ugly truth of the legal system: litigants and lawyers can manipulate it to impose huge expense on defendants no matter what the merits of their complaint. Censors can abuse the system to make true speech so expensive and risky that citizens will be silenced. Regrettably, Ohio does not have an anti-SLAPP statute, so Med Express and James Amodio can behave in this matter with relative impunity. If Ms. Nicholls has to incur ruinous legal expenses to vindicate her rights, the bad guys win, whatever the ultimate outcome of the case.

Unless, that is, you will help Amy Nicholls stand up — not for $1.44, but for the freedom to speak the truth without being abused by a broken legal system.

If you are an attorney practicing in Medina County, Ohio, please consider offering pro bono assistance. Mr. Levy will be coordinating assistance, and I can tell you from personal experience that it is a privilege to work with him. Help give Med Express and James Amodio the legal curb-stomping they so richly deserve. Justice, karma, and the esteem of free speech supporters everywhere will be your reward.

If you aren't an attorney, you can help, too. Med Express should not be permitted to act in this manner without consequence. The natural and probable consequence is widespread publication of their conduct. Help by publicizing the case on Facebook, Twitter, on your blog, on forums, and on every other venue available to you. Ask yourself — would you want to do business with a company that abuses the legal system to extract revenge against customers who leave truthful negative feedback?

Stand up for free speech.


Edited to add: "Med Express" is a mundane name; make sure you refer to and link to the correct one — this one, med_express_sales.

Edited again to add: Thanks to Prof. Reynolds of Instapundit for the link to this. It's possible Med Express didn't think this plan all the way through.

UPDATE WITH AWESOMENESS: I offer my profound respect and appreciation to Jeffrey M. Nye and Thomas G. Haren, who have answered the call. If their names sound familiar, it may be because they stepped up and represented a blogger pro bono just a few months ago. I understand that they will be stepping in to assist Ms. Nicholls pro bono. Moreover, I understand that multiple attorneys are now investigating whether Med Express has filed other defamation suits to silence negative feedback. I'll report when I hear more.

I've said this before: free speech depends on people like Jeff and Tom. Anti-SLAPP statutes are slowly proliferating across the country and more people are becoming educated about First Amendment rights. Ultimately, though, our broken legal system allows bullies to extort silence through the credible threat of stressful, expensive, uncertain litigation even when they have no valid claim. It takes lawyers like Jeff and Tom — and like a number of other good people who wrote me in response to the Popehat Signal — to push back against that problem. I'm just sitting on my ass blogging; Jeff and Tom are putting their skills and many hours of their valuable time on the line during a bad economy. I salute them, and if I ever have to recommend lawyers in Ohio, they will be at the top of my list.

Time For The Popehat Signal: Counsel In Vermont For Threatened And Harassed Blogger

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The Popehat Signal

It's time for the Popehat signal!

Someone needs your help.

That someone is a blogger in Vermont. The blogger writes critically about an industry that — without exaggeration — is universally loathed, and with reason. He attempts to expose criminal conduct by companies operating in this inadequately regulated industry.

Recently he wrote about one particular company in the industry, setting forth evidence and documentation about their conduct. The company sent a threatening (if kind of eighth-grade-level) message through his blog, attempting falsely to tie him to a racist organization.

Later, he learned that a private investigator was talking to his friends, associates, and co-workers, and suggesting that he is associated with this racist organization. He is not.

The purpose of the private investigator is clear: to harass and intimidate the blogger into refraining from writing about this company and its operation within this justifiably despised and frequently criminal industry.

Here's what I am looking for:

1. First Amendment counsel in Vermont, in case he is pursued legally there.

2. Counsel in Vermont who might be willing to consult on a potential slander case against the private investigator and his employers. Telling people that the blogger is affiliated with a racist organization in an effort to silence him is not protected speech.

3. Anyone with a familiarity with the private investigator licensing authorities in Vermont, who might have ideas about addressing the issue.

4. People with computer forensic ability to help trace communications.

Yes, this post is very vague. That's to avoid tipping the bad guys off — for now. Sooner or later you'll hear more. If more than 1% of you disagree with my characterization of this industry I'll cut off my left nut with a spork.

As always, protecting bloggers from legal and extralegal harassment based on their First Amendment activity requires people to be generous with their time. The Popehat Signal rarely lets me down. You all rock. Please spread the work.

The Popehat Signal: Help An Author Against A Bogus Trademark Claim

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It's time to light up the Popehat Signal and seek legal help for an author wrongfully threatened by a large company.

The Popehat Signal

I first wrote about this situation in December. MCA Hogarth is a science fiction writer; she wrote a book called "Spots the Space Marine." Venerable gaming titan Games Workshop is claiming that it has a trademark in the term "Space Marine" that extends not just to games (like its well-known Warhammer 40,000) but to any use of "Space Marine" in science fiction. Never mind that the term has been in wide use in science fiction for many decades.

Hogarth, a self-published author, is finding Amazon.com unsympathetic to her arguments about Games Workshop's thuggish and meretricious claims, and is finding the cost of hiring trademark counsel an insurmountable barrier. (Edit: here's a mirror if her site gets slammed.) That's exactly the effect that 800-pound-gorillas like Games Workshop hope for when they make spurious claims — not that they'd win a protracted legal battle, but that their opponents lack the funds to fight, and that vendors like Amazon will defer to them.

As I have said before, I am always heartened by the response to the Popehat Signal. It's rare that it doesn't produce suitable pro bono counsel. So: this time, I'm hoping there is a trademark attorney out there — maybe a geeky one with the heart of a gamer, like me — willing to help Hogarth pro bono. Even advice and negotiation would be helpful, I bet. I would do whatever I can to coordinate support and backup for such a lawyer. As always, offers of help from lawyers in other fields, paralegals, tech experts, and other professionals is welcomed and helpful.

But that's not all.

I know you are out there, gamers and science fiction readers. Even if you're not an attorney, you can help. You can help by sending an email (edit: in the comments, Patrick offers the email to use) to Games Workshop telling them you won't buy their products while they engage in meritless trademark bullying. (Edit: or communicate with them by their Twitter account, https://twitter.com/VoxCaster.) You can help by spreading this story — and getting others involved — on every gaming and science fiction blog and board and forum out there. Inflict upon Games Workshop the consequences of their actions.

As always, thanks.

(And thanks to the dozens of people who emailed or tweeted me about this.)

Popehat Signal Update: Good Resolution To Steubenville, Ohio Defamation Case

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In early November I put up the Popehat Signal seeking help for a blogger and anonymous commenters sued in connection with their statements about a rape case in Ohio. Many people figured out that I was talking about a rape prosecution involving members of a high school football team in Steubenville, Ohio, and a defamation suit brought by a teen named Cody Saltzman and his parents. The rape case, the defamation case, and the controversy surrounding them have now been covered in the New York Times.

I'm happy to report a good result made possible by the contributions of dedicated lawyers.

Alexandria Goddard, who blogs at Prinnified and was the lead defendant in the defamation case, reports that the case has been settled as to all parties and will be dismissed.

On behalf of myself and the John Doe defendants, we are very pleased to announce that the defamation lawsuit filed against us has been dismissed with prejudice. Dismissals with prejudice mean that this case can never be refiled again and this lawsuit is officially over. On December 20th, the plaintiffs approached us about settling this case, and we were quite happy to oblige. Lawsuits are costly and very stressful, and this suit has taken a toll on all involved. As part of the settlement we did not pay any money; we did not agree to retract any statements, nor did we agree to stop covering the case or discussing it.

Goddard offers a clarification that Prinnified never had any information that Saltzman took part in the rape alleged in the criminal case, and Saltzman offers an apology for his repulsive social media coverage of his classmates mauling a drunk child.

This is a tremendous victory for Goddard, for the anonymous commenters, and for free speech values. Congratulations and admiration are due to the following:

Jeffrey M. Nye and Thomas G. Haren were among the first to respond to the Popehat signal and quickly took up Goddard's defense. They were ably assisted by my friend and colleague Marc Randazza, who is familiar around these parts.

Paul Alan Levy of Public Citizen, another Popehat friend, stepped up to assist some of the anonymous commenters sued in the case and quickly secured dismissals against them.

The ACLU of Ohio, through attorney Scott Greenwood, stepped in to assist additional anonymous commenters in the case.

In addition, many additional attorneys and citizens wrote in response to the Popehat Signal offering to help.

A few thoughts and observations:

1. If the purpose of the defamation suit was to protect the reputation of Cody Saltzman and his parents, it was a catastrophic error in judgment. The suit invoked the Streisand Effect in full force and was very likely the catalyst that drew the attention of both the New York Times and (in more troubling fashion) hackers under the Anonymous banner.

2. Ohio doesn't have an anti-SLAPP statute. Nor do many states. Others have woefully deficient anti-SLAPP statutes. Goddard and the commenters here were very fortunate to get swift and highly effective pro bono help, without which they faced lengthy and ruinously expensive litigation. Most defendants in censorious defamation suits are not so fortunate. What can you do? You can lobby for effective anti-SLAPP laws in your state, lobby for a federal anti-SLAPP statute (various versions have been kicking around Congress for years), and help to publicize calls for pro bono counsel in cases like this one. As it stands, in states without effective anti-SLAPP statutes, the legal system does not prevent or deter censorship by lawsuit.

3. The First Amendment protects a very broad range of commentary about the Steubenville rape case and its participants. However, when it comes to government action, the accused — as well as the other young men who were not charged — are entitled to due process of law. Period. They are not less entitled to due process because you're horrified by what they are accused of, or because of allegations that they are being protected by corrupt locals. Supporting due process of law for people accused of despicable crimes is a civic value just as important as supporting freedom of expression for people whose speech infuriates you. Degrading one value tends naturally to degrade the other.

Regarding the Popehat Signal: You People Are Awesome

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Every time I'm down on humanity, I think of this: whenever I put up the Popehat signal seeking pro bono help for people whose freedom of expression is threatened, I get a wave of responses. I get many from lawyers, even from lawyers in other states offering to help however they can. I get responses from web mavens and technical experts and just plain folks asking if there is any way they can contribute their efforts. I get offers of funding for the defenses.

And it's not just with the Popehat signal. When I write about evil people victimizing innocents, people write in doing their own insightful and skillful investigations into the baddies and seeking to help. When I straight up ask for people to contribute to worthy causes, they do.

For everyone really awful on the internet, there's someone really great on the internet. This helps me get through the day. Thank you.

If you're one of the people who needs help, please keep asking, and I'll keep trying to tap into this network of awesome folks. Sometimes I can't answer immediately, and sometimes I'm a little busy — truth be told I got six different requests for help or advice this week. (The latest — if anyone out there is admitted in Virginia and would be willing to write a pro bono scary response to a very stupid threat letter, please drop me a line.) But keep sending them, because all these people have our backs.

Popehat Signal: Blogger and Commenters Need Help In Jefferson County, Ohio

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The Popehat Signal

Today I'm putting up the Popehat Signal seeking pro bono assistance for a threatened blogger and anonymous blog commenters.

For the moment, I'm only going to describe the case generally, though I may discuss it later at length. The blog in question reports on local crime stories in Ohio, and in this instance reported on a local prosecution of the rape of an unconscious young woman, allegedly by high school football players. One player was not accused of the rape, but was criticized on the blog based on an allegation that he took pictures of the unconscious young woman but did nothing to stop others from sexually assaulting her. He, and his parents, have now sued the blogger and have named multiple commenters as John Doe defendants and will seek to unmask them.

I've reviewed the complaint, and it appears to me that (1) many of the statements it complains of are archetypical statements of opinion protected under the First Amendment, and (2) that the relief it demands — including prior restraint on publication, removal of existing posts, and a court-mandated retraction and apology — are extremely questionable. Moreover, to the extent the suit attempts to assign liability to the blogger for the words of commenters, it runs afoul of Section 230 of the Communications Decency Act.

The suit has been filed in Jefferson County, Ohio. The blogger needs counsel, and the John Doe defendants may as well — whether individually or as a group to fight attempts to unmask them. This may be a case like the Planet Valenti matter where local power politics play a role.

If you can possibly help, or if you know anyone who can, please drop a line to ken at popehat etc. I will pass information along to the people involved.

Remember: because of the flaws in our legal system, defense of the First Amendment relies upon the vigorous participation of lawyers (and others) willing to lend a hand.

[Confidential to C.B. and C.T.: snookumses, I'm sure you'll be mewling about "why does he attack us but help these people!" One answer, as anyone with a room-temperature IQ will tell you, is that these people aren't engaged in wire fraud and extortion. Thx.]