Popehat Signal Update: Dream Team Victory In Texas

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.

Last 5 posts by Ken White

Comments

  1. jaxkayaker says

    Kudos to the hard-working good-guy lawyers.

    Ken: minor typo, penultimate sentence: "…[to] silence dissent…"

  2. Chris says

    Congratulations to the lawyers involved, and to Ken for putting out the Popehat Signal on this.

  3. AlphaCentauri says

    Thank you to everyone involved. I know if I had been targeted, there's no way I could pay for the legal defense necessary. People who stand up and fight these things instead of settling help all of us.

  4. Matthew Cline says

    Tangential question: in the context of AIDS activism and AIDS denialism, would Baker count as a "public figure" for the purposes of defamation law?

    Baker has appealed,

    Could you link to the briefs? I'd like to see his "logic" on why it really is a violation of trademark law.

  5. says

    That's a shame about the lack of fee award. Those guys are high-caliber attorneys, they deserve to be paid for their work.

  6. Raucous Indignation says

    Excellent post, on more than one level. Good to have you back. Hope all is well, and that you can and will return to blogging as much as you'd like.

  7. Devil's Advocate says

    @Matthew Cline

    I haven't seen the brief, but if you read 15 U.S.C. § 1125 fast enough, you might not notice that it doesn't actually say that Any person who . . . in connection with any . . . services . . . uses . . . any . . . name . . . which . . . misrepresents the nature, characteristics [or] qualities . . . of . . . another person’s . . . services . . . shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

  8. En Passant says

    Ken wrote:

    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. … They are heroes.

    Indeed!

    And, as you noted earlier, Mr. DeShong's mother as well.

  9. Tim says

    Kudos and Congrats to the team! Guardians of our freedoms and go-to guys! If I ever need to hire counsel for myself, I'll keep these gents in mind.

  10. Sami says

    You know, claiming that criticism is a violation of trademark seems like the sort of legal argument that should allow a judge to issue a formal ruling of: "Bitch, please."

  11. Nicholas Weaver says

    Could you link to the briefs? I'd like to see his "logic" on why it really is a violation of trademark law.

    The appeal has only the notice of appeal.

  12. Boyd says

    Could you link to the briefs? I'd like to see his "logic" on why it really is a violation of trademark law.

    The appeal brief itself hasn't been filed yet, but you can read the original Complaint and the First Amended Complaint on Baker's website, together with two long sprawling affidavits which outline his theories. Click on Ken's link above labelled "conspiracy theories about AIDS researchers".

  13. Mike says

    "They are heroes. "

    "Hero" is a big word, but I think it's well-earned here. Thank you all, for your work on this case.

  14. c andrew says

    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.

    I'm not a lawyer and do not play one on TV or the internet, but this smells a little defamatory to me.

    Besides, we oughta cut this cop a break. He's not used to dealing with a sitch where he can't rely on friends to tell the world that he's complied with all departmental regulations. I'm actually surprised that he wasn't seen repeating the mantra, "Stop Resisting, Stop Resisting" as he beat the defendant (or his mother) around the head and ears. /sarc

    But all snark aside, this is a real feel-good victory all around. Thanks to those who have the expertise and the will to use it in a good cause.