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.
Last 5 posts by Ken White
- Cracked Drunkenly Paws At Free Speech Theory Again - December 5th, 2016
- Update on The Popehat Podcast - November 30th, 2016
- Lawsplainer: Why Flag Burning Matters, And How It Relates To Crush Videos - November 29th, 2016
- Update: Ninth Circuit Rejects Attack on "Comfort Women" Monument - November 28th, 2016
- True Threats v. Protected Speech, Post-Election Edition - November 16th, 2016