Patterico Prevails: Vexatious Legal Attack on Speech Fails

For the last few years I've had the privilege of acting as pro bono counsel for Patrick Frey, who blogs as Patterico, in defense of a thoroughly frivolous federal case filed to censor his speech. That's given me the invaluable opportunity of working with the redoubtable Ron Coleman as co-counsel both in the district court and the Ninth Circuit. You can catch up on the legal issues in the case here and here.

Now, after years of litigation, I'm pleased that the case has ended successfully for Patrick. As Patrick announced yesterday, he and plaintiff Nadia Naffe have settled the matter for a walk-away. Patrick retracted nothing and paid nothing, and only waived his fees and costs, and Naffe dismissed the case with prejudice — meaning it can't be refiled.

It's both a good thing and a bad thing. It's a good thing because it's the right result: the case was a blatant politically motivated attack on protected speech. It's bad because it took so much time and work. The flaws in the system it exposed are too extensive for one post, but one thing stands out: the case highlighted the need for a federal anti-SLAPP statute that makes it harder for vexatious litigants to abuse the federal court system. You can track the progress of various proposed anti-SLAPP statutes here. If you want to help make this sort of abuse harder, consider becoming a vocal supporter of state and federal anti-SLAPP statutes. Write your representatives.

Thanks are due to Ron, for leadership and exceptional skill, to Eugene Volokh, for a very strong amicus brief before the Ninth Circuit, and to Patrick, for perseverance and principle.


Last 5 posts by Ken White


  1. Pablo says


    Next is Censorious Asshat of the Year Brett "The Speedway Bomber" Kimberlin, of course, on the very same 1983 claim.

  2. jaxkayaker says

    Congratulations! It is a shame (stronger word to express this sentiment needed) that it took so long and required so much effort for what should have been a foregone conclusion.

  3. says

    I'm cheating and reposting my comment I posted on Patterico's site:

    "This is fantastic news. I am so sorry you had to go through this. And yes, thank you to Ken White, Ron Coleman, and Eugene Volokh. In defending you, they defended the civil liberties of all of us.

    As someone who has been the defendant with pro bono legal help (from the terrific Marc J. Randazza), and having had a little knowledge of Patrick’s case, I just want to tell people that pro bono doesn’t mean free. Marc and his associates put in vast amounts of time, and I know this had to be the case for all the lawyers here. It is no small thing, their defense of Patrick.

    And Patrick, thank you for being a fierce advocate for and teller of the truth. That’s certainly no small thing, and a reason I have a great deal of respect for you, even on occasions when I don’t entirely agree with you. The integrity’s always there."

  4. EPWJ says

    I'm very happy for the Frey family. I think that suppressing opinions, even facts is a slippery slope leading to some of the deep problems we have today. In this next election cycle, I think free speech is definitely on the line.

    Sadly, I have seen people, even free speech advocates, even when confronted with video evidence, decide that free speech, when contrary to their beliefs or ideology, needs to be suppressed.

    But again, Pat has gone through a lot, and I'm sure some other moron is going to try it again and thanks to his defense team for the countless hours of work so we can all speak our minds.

  5. EPWJ says

    Of course the real victim here is Matt Osborne and Schuler, their comments and actual blog posts are wrecked with the realization that a small group of lawyers body slammed them sooo publically.


  6. Mikee says

    I've never much cared for the content found on Patterico. His use of facts and verifiable information is pathetic, at best. He obviously prefers the doctored and manipulated information that was created solely to pass off political agendas, which is usually the opposite of 'the truth.' But I'm still glad he won the case so that he can continue spouting off nonsense and gibberish, because it's just so damn funny.

  7. Slade the Leveller says

    A victory for free speech, indeed. That website is truly a test of Voltaire's maxim, however.

  8. says

    Thanks to Ken, Ron, and Eugene Volokh for their pro bono help. They are wonderful people and I am incredibly grateful to them.

    By the way, "Mikee": if people don't like my site, so be it — people obviously have different points of view. That's the way the world works. But reading the claim that my "use of facts and verifiable information is pathetic" or that I prefer "doctored and manipulated information that was created solely to pass off political agendas" made me wonder: do you have specific examples where you can show my "facts" are wrong? I try to be careful with facts, and would welcome any factual corrections.

    Or is this simply a more melodramatic way of saying "I disagree with the things you say"?

  9. Mikee says

    RE: "Patterico" (Seriously, what's with the quotation marks, aside from making yourself look like a snobbish ass that has a problem with nicknames, *cough* Patterico *cough*?)

    Yep, I disagree with a lot of what you have to say, which is why I rarely, if ever, read your site now. Your defense of a well known liar like James O'Keefe shows you've blinded yourself to the facts because of your political bias. Any neutral, outside observer that has had access to the unedited videos taken by O'Keefe has verified he's editing the video to falsely portray a narrative that does not exist in reality.

    I'm not going to get into a back and forth with you about what you've said in the past about O'Keefe, mostly because there's absolutely nothing I could say to you that you would ever accept, let alone contemplate. I stopped reading your site five years ago because of it and any time I plug his name into your search engine, I get more and more gullible explanations as to why a con-artist is actually telling the truth. Whether it was intentional or not, you're just a shill, helping a snake-oil salesman peddle his wares.

    I disagree with everyone's attempts to abuse our government to attack others for doing nothing wrong (Naffe bad, O'Keefe bad.) You only disagree with your ideological opponents attempts to abuse our government to attack others for doing nothing wrong (Naffe bad, O'Keefe good.)

    You should really go back through Popehat and read up on the disgusting scourge of public shaming that has seized our culture, then maybe you'll realize you're a cheerleader in favor of it, bullhorn, pom-poms, and all.

  10. Daniel says

    I usually disagree with Patterico, but if the suit against him was frivolous (I have no reason to think it wasn't frivolous), then the truth has prevailed, which is always a good thing.

    What would be interesting is whether Patterico supports doing away with absolute prosecutorial immunity for prosecutors behaving badly. We need some sort of anti-SLAPP-type-remedy against vindictive prosecutions.

  11. says

    I agree that a lengthy back-and-forth about this issue will interest nobody and serve no useful purpose. I'll simply note this: people who (unlike you) *have* read my site for the last five years have watched me defend O'Keefe at times, and criticize him at other times (for misleading editing, poor judgment, and other things).

    If you ever come up with incorrect *facts* (as opposed to political disagreements or other generalized complaints about my writing lacking any specifics), please don't include them here in this comment thread, where people will likely not be interested — but please do feel free to present them to me in email or in comments at my blog. I'm not saying I expect you to, but the invitation remains open. I don't like to get facts wrong.

    Either way, thanks for your support on the free speech issue.

  12. says

    "What would be interesting is whether Patterico supports doing away with absolute prosecutorial immunity for prosecutors behaving badly. We need some sort of anti-SLAPP-type-remedy against vindictive prosecutions."

    You might be surprised to learn this, but I don't support any reform that allows even more frivolous lawsuits to be filed against me — given that I just beat one and am fighting another one as we speak. Vindictive or meritless prosecutions do happen. But they are alleged to happen far, far more often than they actually happen. I'm not in favor of opening the floodgates of litigation

    That said, real punishments for real abuse of power are merited — take that awful situation in Texas where the D.A. (later a judge) deliberately hid exculpatory evidence and let an innocent man be convicted of murder. Someone like that should be thrown in prison.

  13. says


    Has a certain ring to it.

    "The redoubtable Ron Coleman."

    Oh, yeah, Patterico, yeah. We're glad to be done with this one. Hurray for our side!

    Heh. "Ron 'Redoubtable' Coleman." Like "Mikee" and "Patterico."

    Yes. "Ron the Redoubtable"!

    Oh, good post, "Popehat"! By the way, don't believe him about "leadership." It was not me, not in this one, not here. I got to do the oral argument because I won a coin toss. I was not the lead guy here — just saying.

    But redoubtable? Yes. RE-DOUBT-A-BULL.


  14. says

    I "called" Ken fat and bald. He folded like a cheap card table.

    At the time he was particularly vulnerable and didn't even urge the obvious irony of my cruel taunts.

  15. OrderoftheQuaff says

    Sounds like the right side won, and I hope they're awarded substantial fees and sanctions for the frivolous complaint.

    I've seen the Patterico blog. He isn't too bad, but he's got some racist asshats in his commentspace.

  16. En Passant says

    Congratulations and thanks to Ken White, Ron Coleman and Eugene Volokh, for standing like Horatio at the bridge to thwart yet another attack on free speech.

    I can understand frivolous pro se plaintiffs. They've got time on their hands and nothing better to do. But how plaintiffs find attorneys to mount attacks like this one still eludes me, unless they're made out of money.

  17. Aaron Denney says

    That said, real punishments for real abuse of power are merited

    Patterico, how do you do that, without doing away with absolute prosecutorial immunity?

  18. Gregg says

    Ken, could you PLEASE give Patterico some of you new web-design mojo? Please? I'd like to read his blog but… I can't. No, really. It causes physical pain…

  19. Dean says

    When are you going to do an article on the other SLAPP suit that was filed – and lost – by Jay Leiderman in federal court in the Northern District of California just two months ago? Or the one he filed against the same person in Texas, in which a motion for anti-SLAPP sanctions was just filed on Sept 4th seeking $300K in attny fees and $1 million in sanctions?

  20. says

    Yes, "Dean" has been seen around before. He only posts comments that touch on matters concerning Thomas Retzlaff. Just to be clear, I'm referring to the multiple felon who was imprisoned for quite a few years named Thomas Retzlaff. The Thomas Retzlaff who is not allowed to bring any more lawsuits in Texas because got himself on Texas's vexatious litigant list. The Thomas Retzlaff who's been kicked out of institutions (and kicked into prison) for his constant creepy harassment of women. Just so you don't confuse him with a different Thomas Retzlaff, he is the one who, according to public court documents, used to watch hardcore porn in front of his then-young children, masturbating in front of them using Crisco, a can of which was left out prominently in the living room. Yes, that Thomas Retzlaff. He has a lot of aliases, and occasionally uses them when publicly posting death and rape threats to his own daughter

    And, yes, he's sometimes been in cahoots with Neal Rauhauser. Sicko crooks must have something in common.