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.

Donald Trump's Lawyers Don't Know Or Don't Care What Defamation Is

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.

Partial Victory In Patterico's Free Speech Case Before Ninth Circuit

Long-time readers may recall that, together with Ron Coleman, I'm pro bono counsel to Patrick Frey, who blogs as Patterico.

Patrick was targeted with a thoroughly vexatious lawsuit attacking his blogging. Ron and I won the case in the trial court, securing the dismissal of plaintiff Nadia Naffe's federal and state claims.

Today the Ninth Circuit upheld the result in part and reversed it in part. The opinion is here.

You may recall that the trial court dismissed the entire case based on two points. First, the court agreed with us that Ms. Naffe did not state any facts showing that Mr. Frey blogged in his official capacity as a Deputy District Attorney, and therefore her Title 28 U.S.C. section 1983 claim for civil rights violations "under color of law" could not survive, because Section 1983 only applies to state actors. Second, the trial court — on its own — questioned whether Ms. Naffe could prove the $75,000 in damages necessary for diversity jurisdiction1, and eventually found that she had failed to make a showing of sufficient damages.

The Ninth Circuit agreed on the first part and disagreed on the second.

In a published decision that will be significant for public employees who blog, the Ninth Circuit agreed that Mr. Frey didn't blog as a "state actor" for purposes of Section 1983 just because he's a county employee. The Court agreed that Naffe had not stated any facts giving rise to a reasonable inference that Patrick was blogging as part of his official responsibilities. "Frey is a county prosecutor whose official responsibilities do not include publicly commenting about conservative politics and current events." The Court also rejected Naffe's argument that Patrick's blogging was related to his work as a county prosecutor because he discussed criminal law issues. Finally, the Court noted that Patrick frequently reminded readers that he blogged and Tweeted in his private capacity, not his official capacity.

Crucially, the Ninth Circuit confirmed that a state employee can talk about the nature of their work without transforming their speech into state action. That's key for the free speech rights of all public employees. The Court noted "if we were to consider every comment by a state employee to be state action, the constitutional rights of public officers to speak their minds as private citizens would be substantially chilled to the detriment of the 'marketplace of ideas.'" That's what we argued on appeal, and Eugene Volokh ably argued in his amicus brief on behalf of the Digital Media Law Project: Naffe's proposed interpretation of the law would mean that a teacher couldn't blog about teaching, or a police officer about police work, without transforming their writing into official "state action" subject to civil rights lawsuits. That portion of the Ninth Circuit's opinion will be useful whenever a state employee is sued under the theory that their private speech should be treated as official action.

However, the Ninth Circuit reversed the trial court's dismissal of the state claims. At issue was the standard the trial court applied. Having questioned whether Ms. Naffe could prove $75,000 in damages, as required for diversity jurisdiction, the trial court found that she had not proven such damages by a preponderance of the evidence. The Ninth Circuit found that was the wrong standard. Instead, it found, a trial court should only dismiss a case for lack of diversity jurisdiction when it appears to a "legal certainty" that the plaintiff cannot recover at least $75,000. That's an extremely low standard for Naffe to satisfy, and the court found she satisfied it.

So: the case goes back to the trial court. When it does, we'll have the opportunity to ask the trial court to address our motions that were mooted by its prior ruling. Specifically, we filed an anti-SLAPP motion attacking Ms. Naffe's claims as meritless attempts to chill speech, and a motion under California Code of Civil Procedure section 1030 seeking to compel her to post a bond to cover the costs of the case. We're confident those motions are correct and look forward to pursuing them.

Meanwhile, as before, it remains a privilege to work with Ron Coleman and to defend Patrick Frey's free speech. Thanks to Eugene Volokh, whose excellent brief on the free speech implications was instrumental.

Lawsplainer: Why The D.C. Circuit's Anti-SLAPP Ruling Is Important

Paul Alan Levy reports that the D.C. Circuit has applied the refinement reflected in Shady Grove of the Erie doctrine to preclude application of state anti-SLAPP laws to cases where jurisdiction is premised on diversity of citizenship.

Wait, what?

I was perfectly clear.

That was literally gibberish.

Fine. Fine. I'll explain. Will that make you happy?

Probably not.

Too bad. I'm doing it anyway.

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

This crazy litigant goes to 11.

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

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

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

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

Roca Labs, through Johnny G., accuses Marc of interference with economic advantage and defamation per se2, demands a declaration that Randazza is wrong and he is libel, and moves for an injuction telling Marc to shut up. Yeah, good luck with that.

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

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

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

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

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

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

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

Popehat Signal: Help Fight the Censorious Villainy Of Roca Labs

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.3 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.