Poseur Pastor Pouts, Pursues Preposterous Proceeding, Procures Painful Penalty

Ergun Caner was angry.

There he was, a successful man of God: a published author, Dean and President of the Liberty Baptist Theological Seminary and Graduate School, a sought-after inspirational speaker. Suddenly, crass miscreants laid him low. Critics pointed out he told puzzlingly inconsistent stories about his background. Though public records and his own book suggested that he emigrated from Sweden to Ohio at the age of four, in his inspirational speeches he claimed he had been raised in Turkey, learned of America only through television, and trained as an Islamic jihadist.

Perhaps the story of a foreign jihadist converting to Christianity was more inspiring than the story of an Ohioan converting.

Liberty University conducted an investigation and removed him. But though he found new employment, Egun Caner did not view the matter as resolved. He hungered.

In 2013, he filed a federal complaint in Texas against Jason Smathers and Jonathan Autry, men who posted to YouTube two videos of Caner's . . . shall we say imaginative public presentations. Caner claimed violation of a purported copyright in the videos. He sought damages, attorney fees, and an injunction against posting of the videos.

In other words, Caner sued someone for posting proof that he had been telling inconsistent stories about his background — that he is a fabulist.

Jonathan Autry agreed to take the videos down — no doubt because of the ridiculous expense of a lawsuit. That wasn't good enough for Caner, who continued to demand more concessions. That, as it turned out, was a very poor decision. Autry and Smathers, very ably represented pro bono by Josh Autry and Kel McClanahan, filed a strong motion to dismiss, arguing that (1) Caner could not demonstrate that he had a copyright in the videos, and (2) the posting of them to prove Caner's mendacity was classic fair use.

Caner and his attorney did not take this motion very seriously, I think. I would call their opposition brief nasty, brutish, and short, but it's not substantive enough to be nasty or brutish. It's a feeble two-page gesture that ignores most of the motion's arguments.

United States District Judge Norman K. Moon was unimpressed. He granted the motion and dismissed Caner's case in an extremely thorough (and no doubt very embarrassing to Caner) written opinion.1 First the court noted that Caner had conceded that he never filed a copyright application for one of the videos; that's a prerequisite to maintaining a copyright suit. Second, the judge agreed that the posting of the video was classic fair use, because it was a critical non-commercial use designed to impact discussion of Caner's dishonesty. The court made short work of Caner's thoroughly ridiculous arguments: that the defendants were not protected by fair use because it was the work of a "vindictive" "cyber terrorist", that the defendants were "not qualified" to offer criticism of Caner, and that fair use only protects "appropriate criticism from people that are qualified to render those opinions i[n] the market place and exchange of ideas in academia and elsewhere.” This is too much whaarbaargl.

But we haven't even gotten to the good part yet.

Autry, as the prevailing party in a copyright litigation, filed for attorney fees. Last week, in a devastating opinion, Judge Moon granted $34,262.50 in attorney’s fees and $127.09 in costs to Autry's attorneys, agreeing that Caner's litigation conduct warranted it. The review of Caner's conduct is brutal. The court ruled that Caner (1) pursued the case after Autry took the videos down, (2) demanded, as a condition of settlement, that Autry's young children sign a non-disparagement agreement, (3) delayed the case, (4) failed to seek discovery, opposed the motion to dismiss on the grounds that he needed to take discovery, but could not articulate what discovery he needed, (5) contradicted himself, (6) made unreasonable legal arguments without any support (like the "you must be qualified to criticize" argument), and most importantly (7) filed the case to silence criticism:

In this case, Plaintiff filed a copyright infringement suit to stifle criticism, not to protect any legitimate interest in his work. He and his counsel prolonged this litigation, costing Defendant and his attorney valuable time and money. Defendant’s counsel has set aside other
profitable matters to attend to this meritless litigation, and deserves compensation for doing so. Likewise, Plaintiff should be deterred from seeking to use the Copyright Act to stifle criticism in
the future.

A-W-E-S-O-M-E, that spells Judge Moon.

Caner has failed utterly, has been exposed for his censoriousness, and has had his dishonestly much more thoroughly documented and widely publicized than it would have been if he had not been such a vindictive jackass.

This should happen more often. As I suggested yesterday, intellectual property claims are increasingly abused to silence criticism. Judges ought to avoid their normal squeamishness about attorney fee awards and hammer the plaintiffs in meritless and censorious cases.

Please join me in congratulating the victorious pro bono team.

  1. To be technical Smathers and Autry filed a motion to dismiss or in the alternative for summary judgment and the court granted it as a motion for summary judgment. I could explain it to you but then you'd want to kill yourself from the tedium.  

Last 5 posts by Ken White

Comments

  1. ketchup says

    So, to summarize,
    Popehat proclaims: "Poseur Pastor Pouts, Pursues Preposterous Proceeding, Procures Painful Penalty"

  2. pharniel says

    Judge Moon, Fuck Yeah?

    Seconded on the 'If you do this simply to shut someone up you should pay dearly for wasting everyone, including the court's time'

  3. says

    I join Ken White in congratulating the victorious pro bono team.

    Why is Autry rather than Smathers listed as chief defendant in the pleadings?

  4. says

    Great read, almost as good as reading the decision itself!

    Anton,
    The case was severed. Smathers also received summary judgment in the companion case after severance and his fee petition is pending.

  5. Jack B. says

    This has got to be devastating for Caner. In addition to this, Brewton-Parker College (where Caner is president) was just voted out of membership by the Southern Association of Colleges and Schools. They still have accreditation while they appeal, but considering they were already under a probationary period, their chances aren't good.

    Caner is backed by some heavy hitters in the Southern Baptist Convention, but they're ultimately going to realize this dude is poison.

  6. Matthew Cline says

    demanded, as a condition of settlement, that Autry's young children sign a non-disparagement agreement,

    An actual lawyer let that demand through? It sounds like something you'd only find in a pro se lawsuit.

  7. says

    Matthew,

    Remarkably, yes, an attorney demanded that my nephews and niece sign the non-disparagement. I'm not even sure why a non-disparagement needed to be part of settlement discussions anyway in a copyright case. Just goes to show that Caner only cared about silencing my brother as a critic, not about protecting any copyright.

  8. Fasolt says

    "…fair use only protects "appropriate criticism from people that are qualified to render those opinions i[n] the market place and exchange of ideas in academia and elsewhere.”

    I laughed out loud when I read that. If that was true, a large number of the blogs on the ol' Interweb would disappear from the deluge of lawsuits resulting from that interpretation of Fair Use.

  9. says

    Seriously, where do these nutjobs find counsel?

    The lawyers skated this time, but I think you could make a pretty good argument for sanctions against them for not advising their client regarding the insane level of asshattery taking place.

  10. Lucitania says

    What will the Brewton-Parker trustees who elected him now do? What will the Georgia Baptist Convention now do? What will the Southern Baptist Convention now do? Likely nothing, though ethically they should one and all be compelled to take action. If they do nothing, there are more faux pas to come at the hands of EC to the detriment of the college and community.

  11. trebuchet says

    What is it with all these self-described Christians who so blatantly violate that thing about "false witness"?

  12. Fasolt says

    Well, to be fair to Caner, he is under attack by extreme Muslims and extreme Calvinists.

    If you want to see what someone defending Mr. Caner reads like, click the link for a real hoot.

    Here's a few selections from Dr. Norman Geisler, renowned Caner apologist, in case you find it TLDR.

    As anyone with experience knows, it is a whole lot easier to make accusations than to answer them. And if one makes them loud enough, long enough, and far enough (namely, through the world-wide internet), a lot of people come to believe them—even if they are not true.

    OK, that sounded pretty reasonable, right?

    Dr. Caner has admitted to and apologized for some factual misstatements. But no one has proven any evil moral intent in any of them. Indeed, everyone I know who knows Ergun well, knows him to be a man of honesty, integrity, and moral character. For those who have no mercy for those who make honest mistakes, I would only say: Let him who is without mistakes cast the first stone!

    Well, now he's starting to go a little sideways. I interpret that as making up and profiting off of a life story filled with bullshit is OK, as long as you have no "evil moral intent". I also take exception to that statement about Caner being a "man of honesty, integrity, and moral character." After a close examination of my definition of integrity and moral character, along with my lifetime of memories of people I have met who I consider of high moral character and had integrity, I couldn't think of a single person that ever considered having children sign a non-disparagement agreement. And really Dr. Geisler, that tired old saw about "Let him who is without mistakes cast the first stone"?

    Furthermore, when Ergun becomes aware of any mistakes, he owns it, corrects it, and apologizes for it.

    I don't expect we'll be seeing an apology to Messrs. Smathers and Autry in the near future.

    In addition, most of these allegations range from the trivial to the ridiculous.

    Yeah, never let the facts get in the way of a good story.

    Finally, not one of them involves a moral or doctrinal deviation from the Faith.

    I'm struggling with that one. I seem to recall that during my parochial education and subsequent learning as an adult Christian, there were a few mentions along the way of not lying to people and that sort of thing.

    I'm not including any of it here for the sake of brevity, but you should check out the "Some Concluding Thoughts" section at the bottom of the page here. There are some really good convolutions there, using examples from Dr. Geisler's own life.

  13. Fasolt says

    @trebuchet

    I believe those self-described Christians interpret that doctrine as false witness against others. No issue with making up stories about yourself, apparently.

  14. Fasolt says

    A tip of the hat to Josh Autry and Kel McClanahan, as well. That motion to dismiss was a joy to read. I actually wished it had been longer.

  15. Papillon says

    @Fasolt: I think those self-described Christians would do well to heed the story of Ananias and Sapphira.

  16. Nancy says

    There was a strong sense, from the beginning of Judge Moon's Order, of "the plaintiff is not being helpful," which carried through the rest of the order and the opinion. Congratulations to the Autrys for the win.

    Is it even possible for a four year old to sign a statement saying that he would never say anything critical of Dr. Caner? Twenty years from now, if the kid said something, would any judge in the country agree that the now grown person had, at the age of four, signed away his right to offer an opinion? I looked up David Gibbs, and he's clearly an experienced lawyer. (I don't know how good he is, but he's clearly experienced). But the Memorandum he filed is so totally inadequate that I'm almost surprised the judge didn't make him eat it.

    I wonder if he handed the case over to some kid fresh out of Liberty Law School and didn't supervise him.

  17. says

    Nancy,

    There was actually a first year associate out of Liberty Law on the case, but it's not clear if he ghost wrote the briefs or not. In any event, Caner's worst factual and legal positions came out at oral argument and in settlement negotiations (all handled by lead counsel), not in the briefs and pleadings.

    It may come as no surprise that Caner's legal team put a lot more effort in their opposition to fees. The fees brief and reply were quite fun to write (given how much material I had to work with from the summary judgment decision).

  18. Dan says

    Just read the complaint and noticed something odd–how is David Gibbs "of counsel" for his own law firm? Certainly, it's among the lesser of the problems here, but it seems like an odd mistake to make.

  19. Kevin Horner says

    @Papillon: Sadly, a numbe of those self-described Christians pick and choose what the like from Scripture – elements of Leviticus especially.

  20. Dan Weber says

    The attorney was named "Gibbs" which made me do a double-take but it seems to be no relation to the Prenda Gibbs.

    And a Duke graduate, not LU Law. LU Law is accredited by the ABA so they are a real law school.

    *EDIT*: found this cool quote in the judge's decision:

    Plaintiff’s conduct in this Court leads me to conclude that he acted with improper motive in bringing this suit, that he took multiple, objectively unreasonable legal and factual positions, and that a fee award is needed to encourage defendants like Autry to protect their rights against those who, like Caner, seek to suppress criticism. Equally, those like Caner should be deterred from exploiting the court system for their own purposes

  21. says

    I applaud the work that went into thwarting the abuse of copyright law. However, copyright law can be a useful tool where the real offense being challenged isn't infringement, but something else.

    Take, for example, revenge porn. If you take a selfie, in the buff, and that gets distributed without your consent, proving invasion of privacy/false light can be quite difficult. But if you took the photo yourself, copyright is yours. Register the image and you can, at least, get some form of actual damages and fees (in fact, unlike tort claims, copyright claims can fee shift). Since you weren't planning on selling the photo anyway, copyright isn't what you care about–rather, you care about your privacy.

  22. Jack B. says

    What will the Brewton-Parker trustees who elected him now do? What will the Georgia Baptist Convention now do? What will the Southern Baptist Convention now do? Likely nothing, though ethically they should one and all be compelled to take action. If they do nothing, there are more faux pas to come at the hands of EC to the detriment of the college and community.

    @Lucitania: I wish I could find the link — I believe it was at the FBC Jax Watchdogs blog — but I read somewhere that Caner was initially hired by Brewton-Parker precisely because he was so controversial. Basically, their rationale was, "He must be doing something right if he's got so many critics."

    I'm guessing that this case will get overlooked and excused. After all, the judge is a Clinton appointee, which means he's obviously a liberal Satan-worshiper.

    However, I think the accreditation issue at Brewton-Parker will be Caner's undoing. The problem was there before he was hired, but he hasn't done anything to help resolve the issue. If anything, he's done more harm than good.

  23. Kent says

    My favorite phrase from the summary judgement:

    "Copious judicial ink has been spilled…"

    Congrats to the winning counsel.

    Welcome back Ken!

  24. DanD says

    I am asking, purely for clarification:

    "First the court noted that Caner had conceded that he never filed a copyright application for one of the videos; that's a prerequisite to maintaining a copyright suit."

    I had thought that the US had moved to an automatic copyright, where the copyright is granted without any filing required. Am I mistaken in that, or is it something like you do own the copyright, and unfair use is still a violation, but you can't actually bring the case until you file for the copyright?

  25. says

    DanD,
    You can have a copyright without registration, but you have to apply for registration to file suit. The District Court gave a pretty thorough analysis on this in the summary judgment decision. Also, a delay in registration can bar certain forms of relief, including attorney fees.

  26. Sami says

    Excellent.

    I'm glad Mr. Autry is being awarded costs – that he went into legal battle on behalf of family doesn't change the fact that he seems to have had to do an unreasonable amount of work to beat such a bullshit claim. (I like the judge's description of a "moving target".) Particularly since the judge's order notes that he didn't track and isn't even charging for his assistance at the point where it wasn't at the point of being truly outrageous bullshit.

    I also like that it's now, it seems, a matter of legal record that Autry is very good and "adept" at lawyering and Caner is a dilatorious liar.

  27. Ben says

    [A] fee award is needed to encourage defendants like Autry to protect their rights against those who, like Caner, seek to suppress criticism.

    I think this bears repeating.

  28. Matt says

    Excluding speakers who criticize public figures from protection due to the speaker’s social status, level of education, or other nebulous “qualifying” factors would nullify the broad protections the First Amendment is meant to provide, and stifle the open discourse that stands against tyranny, intolerance, and oppression

    Damn right. I nominate Judge Moon for "Judicial Hero of the Month" (past winners include the ever-awesome Judge Otis Wright for the epic Prenda smackdown(s)).

  29. Matt says

    Also:

    Generously interpreted, Plaintiff may be misconstruing case law

    …The subtext being, "Not so generously interpreted, Plaintiff is talking out his ass" :P

  30. xtifr says

    Hmm, I apologize for getting into minute legal details that may be of little interest to most readers here, but there's one little thing about the award of fees that bugs me. In trying to determine if def'd't's attourney's billing rate was reasonable, the judge went through the 12 "Johnson factors". Factor 10 was "the undesirability of
    the case within the legal community in which the suit arose". The judge said to this: "It is unclear whether this case would be undesirable within the Lynchburg legal community." I would think that an obviously frivolous suit that misuses copyright law to try to suppress free speech would be undesirable in any community (and that a defense against such obviously frivolous claims would likewise be desirable in any community). I realize that it didn't matter in the long run, but don't you think the judge was being a little soft on the plaintiff here? :)

  31. Matt says

    @xtifr

    I would assume that meant the undesirability of *taking on* the case, primarily. E.g, in the case of a copyright issue, not sure it really factors as much, versus, says, being a lawyer for the KKK or Nazis or whatever when they sue to have their march through town. (I realize that that latter situation isn't necessarily one where fees could be awarded, I'm just speaking to "desirability of taking the case".)

  32. says

    xtifr and Matt,

    I think the "undesirability" of representation looks at the attorney seeking fees (me). I argued that my brother's case was undesirable because Jonathan could not afford to pay an attorney. The judge simply concluded that this factor did not weigh in either direction, a finding that doesn't bother me given the fact that the judge found the fees appropriate based upon the other factors.

Trackbacks

  1. […] Ken at Popehat has the story on a court's ruling for fees and costs in Ergun Caner v. Jonathan Autry, filed by a religious leader who had come under criticism for less-than-forthright descriptions of his own past. "The court ruled that Caner (1) pursued the case after Autry took the videos down, (2) demanded, as a condition of settlement, that Autry's young children sign a non-disparagement agreement, (3) delayed the case, (4) failed to seek discovery, opposed the motion to dismiss on the grounds that he needed to take discovery, but could not articulate what discovery he needed, (5) contradicted himself, (6) made unreasonable legal arguments without any support (like the 'you must be qualified to criticize' argument), and most importantly (7) filed the case to silence criticism." Under the prevailing "American Rule" on fees it's extremely hard for the victim of a meritless suit to recover attorney's costs, but this one was extreme enough to be an exception. […]