Lawsplainer: Why Chuck C. Johnson Is About To Get MOED Down

In June, journalist Chuck C. Johnson of California — after a litany of threats to sue almost anyone who had ever said an unkind word about him1 — ponied up and filed a defamation action against Gawker and several of its contributors, each haling from New York.  Johnson complained that Gawker had published several defamatory articles about him, which — among other things — sarcastically raised the question of whether Johnson had defecated on the floor of his college dormitory.2

Johnson filed his lawsuit in a Missouri state court.  Gawker removed the lawsuit to a federal court and asked the court to dismiss it, asserting that Missouri doesn't have personal jurisdiction over Gawker and that Johnson's case won't survive California's anti-SLAPP statute.

In response, Johnson filed a, uh, colorful brief consisting of collages of evidence, incomplete citations, and meandering arguments, spanning one hundred and eleven pages, mostly consisting of irrelevant arguments about how Gawker is a bad media outlet, which is completely f–

Wait, hold up.  Why did Chuck sue in Missouri if he's from California and everyone else is in New York?  And I thought you said this was in a state court, so why does a federal court even care? And why would a Missouri court care about a California law?

How did you get in here?  You're not real.

Yes the good-golly I am.  Besides, Ken didn't say you couldn't rip off this clever framework.  Now tell me what the bejewels everyone's doin' in Missouri.

Well, Johnson had a lawyer there, because he had previously filed a lawsuit in Missouri seeking the juvenile records of Michael Brown, the young man who was killed by a Ferguson police officer.  Johnson lost the lawsuit and his appeals all the way up to the Missouri Supreme Court were summarily denied.

Having lawyer in a particular state is not a good reason to sue in that state — unless you or one of the defendants lives there.3

Why not?

Because there's no jurisdiction.  Whenever you want to bring someone from State A to a court in State B, you have to show that the court can exercise personal jurisdiction over them.  To over-generalize: that means that the plaintiff has to be able to show either (1) specific jurisdiction: the defendant did something in State B and that that something is what you're suing over; or (2) general jurisdiction: the defendant does a lot of things in State B and they could probably expect to be sued there.

In defamation cases, the test for specific jurisdiction is the effects test: did the defendant direct their conduct toward State B such that the effects of the defamation are felt there?4

Johnson argues that he sued in Missouri because his attempt to learn about Michael Brown's background made him popular there.  This plainly contradicts his argument that he's not a public figure, but we'll get to that in a minute.

Beyond that, Johnson argues that because (1) Gawker has written about Ferguson; (2) Gawker has insulted the fan base of the St. Louis Cardinals5; and (3) Johnson's lawyer in St. Louis has seen advertisements about St. Louis on Gawker's site, Gawker is subject to jurisdiction in Missouri.  Were this a lawsuit about Gawker's Ferguson or Cardinals articles, or about Gawker's advertising, Gawker might be subject to jurisdiction in Missouri.  But even taken together, I don't think this is sufficient to show that Gawker's acts amount to a continuous and systematic presence in Missouri.  As Johnson notes, "[p]ersonal [j]urisdiction is about notice."  But Johnson has reported from Missouri, California, Mississippi, and elsewhere — that doesn't mean Gawker is subject to personal jurisdiction wherever Johnson goes.

Plus, selling advertising on a site which uses geolocated targeting to customize ads to the visitor isn't targeting the state.  If that were true, almost any website with ads on it would be subject to the jurisdiction of any state.  Likewise, having a number of readers in a state — or, as Johnson argues, a number of Twitter followers from Missouri — would subject almost every online publication to jurisdiction within that state.  No.

This takes us to about page 79 of the brief.

You keep carping on about the length of the brief.  Isn't there a court rule requiring legal documents to be long and boring?

No.  But there are rules requiring opposition briefs to be limited in length — how many pages you get depends on the court.  In this court, it's fifteen pages.  As Ken points out, this means that Johnson only missed by about 640%.  The discussion on general jurisdiction alone goes on for about seventeen pages.

Of course, Johnson's lawyer asked the court for permission to file a longer brief, which one usually does before it's due.  But after asking for three (maybe four?) extensions and blowing the initial deadline to file the response, the clerks and judge will be…. displeased.

Enough with the boring procedural stuff.  Get to the point.  Who's getting slapped around?

Well, that depends.  Someone's positioning himself for a bench-slap6, but when I said 'SLAPP' earlier, that's referring to, well, slightly less boring procedural stuff.


Glad you asked.  An anti-SLAPP motion is a procedural tool inten–

I thought we were done with the procedural stuff.

No.  Procedure is everything.  Anyway, an anti-SLAPP motion is a tool intended to protect freedom of speech.  A lot of people file lawsuits that, intended or not, cause their enemies to shut up.  Defamation lawsuits, in particular, can be profoundly ruinous if you're not blessed with a huge bank account.  So, an anti-SLAPP motion applies when someone's free speech7 is the subject of a lawsuit.  Once it's filed, discovery is frozen and the plaintiff — the person suing — must show their cards at the beginning of the case: do they have enough admissible evidence to demonstrate at least some chance of winning?  If they do, the case moves forward; if not, the case is over and the plaintiff has to pay the defendant's attorneys' fees.

So what's the federal anti-SLAPP law look like?

There isn't one — yet.  Instead, when a federal court is weighing state claims — defamation, for example, is a state claim, as opposed to, say, copyright infringement, which is almost exclusively a federal claim — the court can apply a state's anti-SLAPP law.8

Here, however, it's tricky.  Missouri has an anti-SLAPP statute, but it's limited to cases involving speech in a public hearing, so there is no broad Missouri anti-SLAPP statute concerning free speech generally.  Plus, in a case involving parties from two different states, the federal court has to decide which state's substantive laws to apply.  In defamation cases, this usually means that the state in which the plaintiff was harmed will apply.  While Johnson makes a vague argument about how he was harmed in Missouri, he's a California resident and his business is based in California.  Because California's substantive law of defamation applies, that means that California's anti-SLAPP statute also applies.  Under the burden-shifting rubrick of California's anti-SLAPP statute, Gawker merely has to show that the lawsuit involves speech on a matter of public interest.  After that, Johnson has to proffer admissible evidence establishing that he has some possibility of success.

Please get to the actual substance already.

Okay, okay.  So, if Johnson has to submit admissible evidence to demonstrate that he has at least a tenable claim, how'd he do?  Poorly.

Both Johnson and his lawyer submitted affidavits.  His lawyer's consists largely of attempting to introduce various articles from the internet, but these — with the exception of articles written by the individual defendants (and maybe other Gawker employees) — are hearsay.  That is, they're statements by people who aren't in court (or testifying under oath through affidavits) about Gawker.

Johnson also submitted an affidavit, which includes this:


If you find yourself testifying under oath about not having defecated on a floor — publicly or privately — something has gone terribly wrong in your life.

But let's back up for a moment: what is it that Johnson has to show?  The anti-SLAPP portion of Gawker's assault makes several, brief, arguments.

First, Gawker argues that Johnson is a public figure — someone who is fairly well-known and attracts public attention.  That would mean that Johnson would have to establish actual malice in order to win a defamation case.  That's a term of art meaning that Johnson has to show that Gawker either knew that its statements were false or just plum didn't care whether they were true or false.  This is difficult to show, both because it means showing, essentially, what was in someone's mind when that person said the mean nasty things.

Johnson can't pull that off.  At least not without sitting the writers down in a deposition and figuring out what they knew or thought at the time.  He's asking the court to allow him time to conduct some discovery, but California's anti-SLAPP statute freezes discovery the moment it's filed.  It's unclear whether this provision applies when a federal court is weighing an anti-SLAPP motion,9 and this is perhaps the only coherent argument Johnson makes as to why his case shouldn't be dismissed under the anti-SLAPP statute.

Johnson is a public figure.  His brief boasts about his broad readership in Missouri, that he has "interviewed with local news organizations, made statements, and appeared on local television," and that he "has uncovered a number of major news stories in his career."  He's contemplated running for Congress10, argues that he's brought down U.S. senators and a candidate for Speaker of the House, and his banishment from Twitter was covered by CNN.11

Johnson also argues that one of the Gawker writers he's suing — Greg Howard — has a motive to lie about Johnson because Howard once debated a random commenter about Michael Brown, raising questions about "how [Howard] might feel about a journalist trending in the news for his dogged reporting of the Michael Brown death and Ferguson Riots from a diametrically opposed point of view[.]"  Johnson then attempts to tie the timing of an article he posted about his Michael Brown lawsuit to articles written by Howard and Gawker.  Being generous, this might suggest actual malice (in that there is a motive to ignore whether something is true), but it does not approach the "clear and convincing" evidence required to establish actual malice.  Moreover, disliking someone is not sufficient, on its own, to constitute actual malice — "malice" is a term of art; it doesn't mean thinking mean things about someone.

Johnson also asserts that he has been vindicated with respect to his reporting (once asserted to be inaccurate) about Sen. Bob Menendez.12  But the revelations about Sen. Menendez didn't come about until after the Gawker articles.  Actual malice requires knowledge (or reckless disregard) of falsity at the time the statements were made.  At that time, it was widely believed that Johnson's reporting on Menendez was erroneous, and reaching a conclusion (even a wrong one) based on disclosed facts — that is, the story linked by the article, is a statement of opinion, not fact.13 In any case, the back-and-forth discussion about public figures is the very reason why the First Amendment — through the "actual malice" standard — grants "breathing room" for people to get things wrong.  Johnson can't meet that here.

Second, before the court has to even consider whether Johnson is a public figure, the court has to figure out whether these statements are even defamatory.  That is: would a reasonable person, apprised of the total context in which the statements were made, interpret them as a statement of fact?  Or are they hyperbolic statements, statements of opinion, satire, or anything other than an assertion of fact?  In this context, whether Johnson wants the ability to conduct discovery is perhaps irrelevant: all of the documents and statements at issue can be put before the court, so there's no reason to conduct depositions or issue subpoenas.

While I've previously discussed why I don't believe the statements are factual, but are instead hyperbolic satire and obvious jokes, one thing sticks out to me:

Even without much in the way of admissible evidence, Johnson's lawyer digs him in deeper.  Among other things, he admits that one Gawker article was satirical.  The only argument summoned here is that one would have to know who Johnson was and what he did in order to understand its satirical bent.  But whether a statement is defamatory is determined by whether a reasonable person, having knowledge of the context, would perceive a statement to be one of fact.  If it's not a statement of fact — and satire isn't — then it's not defamatory.

ThirdJohnson seeks to hold Gawker liable for statements made by commenters, asserting (generally) that Gawker is liable for republishing the defamatory statements of others.  To generalize, if you repeat the defamatory statements of someone else, you can be liable for defamation along with the original speaker.  However, Section 230 of the Communications Decency Act ("CDA") broadly protects websites from being held liable for the comments of their users.  This is what prevents you from suing Facebook when your former friend calls you a "dirty rotten scoundrel who supports Donald Trump and is basically a cat lady, but with opossums."

Johnson attempts to circumvent CDA 230 using the usual suspects — Roommates.com14 and so on — and argues that by promoting defamatory comments, Gawker lost its immunity.  According to Johnson's theory, commenters are like unpaid interns, so… well, your guess is as good as mine.  But "promoting" (or highlighting) comments does not remove the shield established by CDA 230.  Johnson also argues — without any authority in support — that because Gawker encourages people to submit comments anonymously, and doesn't keep track of identifying information, there is no immunity.  These approaches to voiding CDA 230 immunity have been tried by a number of plaintiffs, and they never work.

Get to the floor stuff.  I came here to read about the floor incident.

Uh.  Okay.  Well, the long and shi– short of it is that Johnson vehemently denies it.  He also concedes that Gawker asserted that the rumor was false, and that most of Gawker's audience would believe Gawker's assertion that the rumor is false.  That… isn't defamation.15  Johnson has a point — ably argued, to his lawyer's credit — that Gawker's journalistic model, as applied here, is worthy of vehement criticism: Gawker raised a rumor in order to mock Johnson, while simultaneously noting that it was false.  But Johnson's critique is a matter for court of public opinion, not some far-flung court in Missouri.  As a matter of free speech, Gawker should be permitted a wide berth to hold a mirror to people who seek out public attention.

That's it? It took 111 pages to say that?

Mostly.  The rambunctious night owls on Twitter had a fun time pointing out some of the typos and chaos in this thread, if you want to see more.

So where is this going?

It's hard to tell.  The Missouri court is unlikely to be familiar with the application of California's anti-SLAPP statute, and Johnson's 111-page wordvomit doesn't remotely help clarify the issues.  That means it's somewhat unpredictable as to what the court will do.

That said, Johnson has agreed to the court transferring the case out of Missouri to California.  I suspect the court will grant him that wish, if only because it's far less work to read and dissect 111 incoherent pages.  That would allow a California court to consider the anti-SLAPP issues, which is something a California court is much more likely to be familiar with.  This also allows the court to skip over the question of whether Gawker is subject to the Missouri court's jurisdiction (although I think the answer is quite clearly 'no' here.)

In any event, that Johnson blew the initial deadline to respond (after seeking several extensions, which Gawker's lawyers graciously agreed to give him) and then submitted this monstrosity without first asking permission is unlikely to help him.  I suspect Gawker will move to strike the entire response, and the court will be tempted to grant it.  That's possible, but it's more likely that the court will want to resolve the case on the merits, rather than on Johnson's abject breach of the court's rules, and will transfer it out to California.

Why doesn't Gawker just pay the guy to go away?

Money attracts lawyers.  Lawyers multiply.  Money doesn't.


Postscript by Ken:

Just a few quick points.

First, if you get several extensions to file opposition briefs, then blow the deadline and ask forgiveness, then file half of the opposition just barely before the midnight deadline and most of the supporting documents hours later after the deadline, and you file an incomprehensible 111-page rant in a district with a 15-page limit, most federal judges will take it as disrespect. In fact, most federal judges will view it as akin to giving them the finger. This is foolish.

Second, I can't emphasize enough Adam's point that a vast amount of the documents attached to Chuck's brief as exhibits are inadmissible because they're hearsay — that is, out-of-court-statements by a third party. The problem is that both in establishing personal jurisdiction (now that it's been challenged) and in responding to an anti-SLAPP motion (if the judge reaches it), it's Chuck's burden to come forward with admissible evidence. It's not clear to me whether the person who wrote Chuck's lawyer's declaration understands what admissible evidence is.

Third, everyone makes typos now and then, and most of us over a long career will manage to leave a stray note or missing cite in a brief. But if you're going to file a brief chock-full of missing cites, it would be optimal to try to leave the CITE COMPLAINT note out of the first page.

Fourth, federal judges in diversity cases tend to try to resolve things with the least exercise of federal judicial power possible. Here that would be finding that Chuck has failed to carry his burden of demonstrating personal jurisdiction.

Fifth, I will refrain from a long rant on how awful this brief is, in legal argument, organization, and factual support. I'll just say this: it is comically bad. I have seen worse briefs filed by lawyers, but very few, and none that were so bad at such length. It's about as good as an average pro se brief, and substantially less competent than a brief by an experienced pro se litigant. Does that mean for sure that Chuck will lose the motions? No. Sometimes judges actually go to the law and the facts without regard to the quality of advocacy, which when you think about it is a good thing. It's conceivable Chuck could win on the merits, though not likely. But if he wins, it will be despite this brief, not because of it.

[Update (10/19):  The court has stricken Johnson's response and exhibits, noting that the "seventy-page narrative discussion of facts appears to be excessive and inappropriate[.]".  He has until October 22 to file separate memoranda, with the court generously offering him to fill each one with 20 pages of crayon, and, if they desire, a separate document setting forth all of the facts.  The request for a stay was denied for failure to file a memorandum in support. The judge also pointed out that he can't rule on a motion to amend the complaint if Chuck doesn't submit the traditional proposed amended complaint for evaluation. The judge also quite politely asks Chuck and his lawyer to take a shot at complying with a series of rules governing the format and contents of the documents.]

[Update (10/22):  Chuck Johnson has now filed his do-over attempt at responding to Gawker.  Here are his oppositions to the motion to dismiss and anti-SLAPP, and his proposed First Amended Complaint.  I've only briefly reviewed them, and his lawyer's writing is far better organized, clearer, and occasionally coherent, but I still strongly doubt that Johnson will be successful.  A couple of things stick out.

First, he wants to sue under a theory that Gawker deprived him of his civil rights because they don't keep records of all of their commenters.  To get there, however, he needs to allege that Gawker was a state actor.  He attempts to do so by asserting that because Gawker is protected by CDA Section 230, they're a state actor.  This is sanctionably frivolous.

Second, a number of arguments advanced by Johnson — including that Gawker is a "state actor" because it fails to keep records of its commenters, and that California's anti-SLAPP statute can't be applied in federal court — would substantially undermine protection of free speech if they were accepted.  As a journalist and a self-proclaimed champion of free speech, Johnson ought to be ashamed.]

  1. For a more up-to-date catalogue, see this helpful website  
  2. He didn't.  This appears to have been a cruel joke by classmates who disliked Johnson.  Satirizing Johnson's one-trick-pony approach — asking 'questions' on flimsy social media evidence —  Gawker raised the question based on Johnson's mention of the joke on his own Facebook account. It has since become a widespread joke that nobody believes, but everyone finds humorous.  Well, almost everyone.  
  3. There could be other reasons, of course.  For example, there have been a few cases where someone suffering from hurtfeels will sue in a seemingly-random jurisdiction because the jurisdiction has a lengthier statute of limitations.  
  4. The Calder effects test doesn't appear to be addressed by Johnson.  Probably for a good reason.  There, the journalists made calls to a particular state and knew that the plaintiff would feel the publication's effect in that state.  Here, Johnson resides in California and likely exchanged emails with Gawker while he was in California.  Not Missouri.  
  5. I am told this is a baseball team.  
  6. Hint: it's the guy with the 111-page brief.  
  7. At least in some respects.  Most anti-SLAPP statutes require that the speech be on something of a public concern or in a public forum.  These provisions are rather broadly construed in order to protect more speech.  
  8. Sometimes, assuming the anti-SLAPP statute doesn't conflict with some other federal rule or law.  Much of California's anti-SLAPP statute has been held to apply to state claims being heard in federal court, at least where the state claims invoke California law.  
  9. This is because state laws with some procedural basis can't "directly collide" with federal rules or laws.  Because an anti-SLAPP motion is like a motion for summary judgment — that is, the court is weighing the evidence instead of the allegations alone — the anti-SLAPP statute may contradict the general rule that you can't win a motion for summary judgment if the other side hasn't had a reasonable opportunity to conduct discovery yet.  Some courts have held that the discovery freeze doesn't apply in federal court; others have found that because both California's anti-SLAPP statute and the rule governing summary judgment allow a party to ask the court to allow them to seek specific discovery, there is no contradiction between the two.  I think this is the more reasonable interpretation: a broad rule that the discovery freeze doesn't apply in federal court would wholly undermine the substantive purpose of the anti-SLAPP statute, which is to prevent invasive and costly discovery where the plaintiff can't even summon up their own evidence.  If this rule is adopted in this case, Johnson would be pretty screwed: he's asking to be able to conduct discovery in general, but doesn't specify what it is he thinks he'll find.  That's sufficient to deny an attempt to conduct discovery.  
  10. Pretty sure the floor of the U.S. House of Representatives has… rules.  
  11. Johnson argues that he's a limited purpose public figure — meaning that Gawker would only have to show actual malice on particular issues.  According to Johnson, it's okay to criticize his work, but he's a "private figure […] as to all defamatory comments relating to public defecation and bestiality."  The public figure/limited public figure/private figure realm isn't divided up that narrowly — not when you're a fairly-known commenter and journalist on a wide variety of articles.  
  12. The short story, as I understand it: Johnson reported that Menendez had been caught with prostitutes in South America, but other reporters asserted that this was apparently a fabrication of Cuban intelligence.  Or something.  There's been some suggestion that the subsequent Menendez indictment vindicated Johnson's reporting, but I haven't followed the story closely enough to know one way or the other.  If so, Johnson deserves credit.  
  13. Contrary to Johnson's framing of the article, Gawker didn't say that Johnson "fabricated" the Menendez story; it asserted that the story was fabricated by someone other than Johnson and that Johnson bought it.  
  14. is inapplicable.  There, the users were required by the website to perform an unlawful act each time they filled out a form.  
  15. Please note how careful I am in typing this.  

Last 5 posts by Adam Steinbaugh


  1. Aelfric says

    Just for the record, in the District Courts where I practice (nowhere near Missouri, admittedly), it is not at all unusual to submit an overlong brief and a motion to accept it at the same time. Though that tends to be for a 5-10 page extension….

    Did this attorney just let Mr. Johnson write his own brief? There are points here and there that seem almost lawyerly…and then a whole lot that seems not even close. I am, of course, well versed in the concept that courts prefer to decide things on the merits and will usually bend over backward to not kill a case based on what boils down to a deadline/paperwork snafu. But boy, if I were the judge here, I would strike this baby without a second thought. I am just speechless.

    Oh, and I should add–thanks for the great write-up!

  2. JoeT says

    Money attracts lawyers. Lawyers multiply. Money doesn't.

    Bob Barker: Help control the legal population. Have your lawyer spayed or neutered.

  3. A2 says

    "Never before in my career have I ever lied" seems like a risky statement to put in an affidavit. Unless he is one of the very few flawless truth-tellers that probably exists, this can easily be proven false and in that case I assume it would be rather serious perjury?

  4. CSA says

    Chuck posted several times that he had not filed a late response to Gawker's motions. Clearly he did when he filed his extension request late. Does this not conflict with the "I have ever been caught lying" statement? Could any judge take a statement like that seriously?

  5. That Anonymous Coward says

    Anyone want to take my case for mental stress & trauma from reading what I could of this before my brain rebelled and made me stop?

  6. barry says

    Human memory is usually more mysterious, but I know Mr Johnson's statement:

    I have never had sexual contact with anyone other than a human being.

    got filed right next to Gawker's:

    Cecil the lion's brother Jericho, who is also a lion, was killed on Saturday..

    I'm sure that whole area of my memory could be storing something more useful.

  7. surlybastard says

    I have speculated that the motivation for the MO filing was Johnson's belief that if he could get his case before a jury of "Real 'Murricans", they'd be sympathetic and rule in his favor.

    Aside from that, what I find most interesting, from a sociological point of view, is how much Johnson must have antagonized his college classmates for them to have cooked up and propagated this rumor to the point that it now appears, forever, in court filings.

  8. Paul says

    I didn't make it far, and I am not a lawyer, but everything I read in that brief suggested that he was actually trying to somehow appeal to the judge on the basis of, "Please sir, these are bad people. They are very bad people and I need to punish them. Please agree with me that they are bad news so that we can punish them together, regardless of the law"

  9. says

    Wow, thank you Adam and Ken for breaking this all down into something the average person can understand, with humor, insight, and even a pony reference. This is the only site where I can read a lawsplainer without wanting to defecate on the floor over the tedium. You guys are the bees' knees.

  10. what says

    If anti-SLAPP requires a heightened showing that plaintiff will succeed on the claims, presumably enforced by the opposing party, it makes sense that there is a longer reply brief. Surely there is some accepted process for this? Still, wtf are they doing in MO? That jurisdicational nonsense will get his claims dismissed. And yet, who wants to be known as a floor defecator -anyone would be mad if a publication spread lies that they defecated on the floor and it leaked into their professional life. It should be okay to make Gawker and its J-school twads knock it off. Contrary to wild west sentiment, it would be nice if jerks faced some consequence for spreading lies, sometimes really messed up lies, about other jerks. Gawker's justification tends to be: this guy is a racist/pig/eat babies so we have a free for all and can rile up the machine. That's not how it should work.

  11. Probably A Walrus says

    All right, I'll admit it, I have no idea what MOED means. Google turns up nothing other than the Torah and some sort of Baltimore city employment council.

    Someone help me out here?

  12. Adam Steinbaugh says

    @Walrus: It's a bad pun. MOED is the acronym for the U.S. District Court for the Eastern District of Missouri, where the case is pending.

  13. NickM says

    IMO the reason Johnson filed in MO is that he couldn't find a CA attorney willing to handle the case.

  14. AL says

    Hmm. Once again we see that nothing good comes from being courteous to opposing counsel in frivolous SLAPPs. The very idea of being courteous to attorneys who knowingly abuse the courts by filing absurd defamation cases is preposterous.

  15. jackrousseau says

    Ken, has anyone ever told you that it was a great idea to bring Adam on board here? Because it was.

  16. sinij says

    I think getting someone to "testifying under oath about not having defecated on a floor" is a crowning achievement for any troll out there. I don't know what you do to top it off, well maybe start another GG.

  17. Dawnsblood says

    Damn it Adam! There is no site on the internet I hate more than Gawker. This is the only time I can remember that I actually feel Gawker shouldn't lose horribly at whatever they are doing. I just have to keep telling myself free speech is too important to let Gawker screw up.

  18. James says

    His statement that he has never has sex with another other than a human being is very strangely worded. Given that he is worried about ridicule, didn't he leave himself wide open for an expose about that drunken evening with the two dwarfs that . . . well, you can fill in the blanks.

    Not the sharpest knife in the drawer. I wonder how much his attorney charged him for a 111 page brief, and can you still call it a brief when it is more properly referred to as a long?

  19. JTM says

    @Adam Steinbaugh: With regard to your footnote 4, the brief does address Calder, though not effectively. In pages 75-78, the brief cites Baldwin v. Fischer-Smith, a Missouri state case which the brief says "eschewed the 7th Circuit Calder opinion’s requirement that the defendant target the forum state itself as opposed to forum residents." Not surprisingly, the brief gets Baldwin wrong. In Baldwin, nonresident defendants used a website to libel plaintiffs who lived in Missouri. The Court recognized that "tortious acts aimed at a target in the forum state and undertaken for the express purpose of causing injury there are sufficient to satisfy Calder's express-aiming requirement" and held that the "defendants' contacts were constitutionally sufficient for the trial court to exercise personal jurisdiction over them." Baldwin just says that if you defame someone online, you can be sued in the state where the plaintiff lives. The brief somehow misinterprets Baldwin as saying that you can be sued anywhere that residents access the defamatory content, which is silly.


    To be fair to Plaintiff's counsel, the mega-brief was in response to two (possibly, charitably, three) motions. If he had filed separate opposition briefs, he would have had a 30-45 page limit.

    But only 5 of the 45 pages of argument addressed venue, and only 5 addressed Anti-SLAPP. For the response to the motion to dismiss, only 7 pages were substantive arguments about the defamation claim. 25 pages on personal jurisdiction? Ugh. It's like he blew his Civ Pro final a few years back and has been waiting for a chance at redemption. He did not use his space or time well.

    It's curious that the Anti-SLAPP portion argues that California's statute violates the FRCP, without citing Newsham v. Lockheed, the 9th Circuit case that says it doesn't (which the 9th Circuit has continued to apply after Shady Grove, e.g. Makaeff v. Trump University). Bad precedent is bad, but pretending it doesn't exist is worse. Submitting a 111 page brief is awful enough. A 111 page brief that doesn't address relevant authority is going to make some poor judge's clerk very unhappy.

    Also curious that the brief doesn't address Defendants' argument that California law applies, aside from a few conclusory sentences scattered throughout the argument section. Does Plaintiff's attorney think that establishing personal jurisdiction also resolves the issue of choice of law? Whatever the reason, it is odd that the brief never explains why Missouri law should apply, since the only apparent reason to file in Missouri is to avoid California or New York law.

    Overall, a lot of poor choices, displaying remarkably poor judgment. And nothing can excuse that 65-page monstrosity of a "facts" section. I wouldn't even characterize that as an average pro se brief, but rather towards the low end (rambling and mostly irrelevant with weird fonts and images, but not quite tinfoil-hat-wearing black-helicopter-NGO-conspiracy-ranting crazy). There are lots of gems, but my personal favorite is footnote 14: "Celebrities are already at high risk without Gawker creating a de facto GPS tracking device. By way of example, John Lennon, born October 9, 1940, was shot and killed by a deranged fan. [Wikipedia Link]."

    My hypothesis: Court will dismiss for lack of personal jurisdiction, rather than keep the case or transfer venue to California. All of the complaint's causes of action arise under Missouri common law, it wouldn't make a lot of sense to send them to a California court (unless I'm missing some point of federal diversity practice, I don't have a lot of experience in that area).

    Side snark: The attorney's website says "he concentrates his legal practice in the areas of Personal Injury and Worker's Compensation, Employment Law, DUI/DWI and Criminal Law, and Civil Rights litigation" (and also lists Wills and Estates as a major practice area). That's not concentration, it's a survey course. Dude's been practicing two years. I can't imagine he's competent in any of those areas.

  20. Adam Steinbaugh says

    @JTM: Fair enough. Another screwup: Baldwin critiqued the "Seventh Circuit" opinion in Calder? Calder was a Supreme Court case. Baldwin talks about a Seventh Circuit opinion involving Calder, but I don't think it helps Johnson here.

    Also notable: while there's plenty of (likely inadmissible) evidence of Gawker's purported forum activities, the only evidence offered as to whether *Johnson* has any ties to Missouri is his case in the Michael Brown records. Although the brief asserts that Johnson did a great number of things in Missouri, his affidavit doesn't mention it. Given that Baldwin was addressing the question of whether a tortfeasor must be shown to direct his conduct at *both* the state *and* a "resident" of the state, and the Baldwin court was satisfied that jurisdiction existed so long as a "known resident" was targeted, this doesn't seem to help Johnson either. He's not a resident — he's just a guy who hired a lawyer in Missouri once. (At least as far as the evidence shows, anyway.)

  21. Odelay says

    We are positive this guy is a lawyer and not a pod person or something like that? I just…some of the people who are admitted to the bar are really…surprising.

  22. Boojum says

    Filing a lawsuit in which you publicly reiterate allegations that you engaged in bad conduct — especially where the allegations have received limited press — falls squarely in the realm of "bad strateregy". A prime example of this is the Steinbuch v. Cutler debacle, where Robert Steinbuch sued Ms. Cutler for blogging about their alleged sexual antics (including spanking) despite the fact that (a) there had been limited publicity before the lawsuit and (b) he had not been confirmed (prior to the lawsuit) of being the R.S. referenced in the blog. AFTER he filed suit, there was a lot of publicity with his name attached.

    The same is true here. I didn't know, before reading this article, that Mr. Johnson had been accused, even if in jest, of having shat in the floor. However, it now appears beyond dispute that Mr. Johnson (or his lawyer) just took an 111 page dump on the US District Court for the Eastern District of Missouri.

  23. Scott Jacobs says

    He's not a resident — he's just a guy who hired a lawyer in Missouri once. (At least as far as the evidence shows, anyway.)

    I'm not entirely sure what you're talking about… I see little evidence a lawyer was hired…

  24. Dan says

    If the law is so clear here, then why was Michael Mann's case allowed to proceed against Mark Steyn?

    Oh yeah, who, whom.

  25. wolfefan says

    I should have put a smiley face in the above comment – I didn't mean it to come off as snarky.

  26. Nicholas Weaver says

    My IANAL speculation on Chuck "I swear under oath I never fucked a goat" Johnson: He should pray it just gets dismissed rather than venue transferred to California which he has allegedly consented to as OK.

    Gawker would be happy with a dismissal just to make this go away, but I guarantee if it gets transferred to California, Gawker's lawyers will be out for blood on the Anti-SLAPP motion. And if Chuck "I swear under oath I never fucked a goat" Johnson loses, the legal bill will be immense.

    Now Chuck "I swear under oath I never fucked a goat" Johnson may be effectively judgement proof, but the problem with being judgement proof is you need to remain judgement proof.

    We all remember Charles "Chuckles" Carreon, who owes Cathy Gellis and Paul Levy a large amount of money. Now he's effectively judgement proof: driving around in a beatup old Prius that is probably worth no more than $5k, and living in a crappy home in Tucson below the homestead threshold, basically putting what little assets he has immune from bankruptcy under Arizona law. But there he will remain, because if he ever, did, say win the lottery, a huge cut goes to Ms Gellis and Mr Levy first.

    And in the case of Chuck "I swear under oath I never fucked a goat" Johnson, the bill from Gawker's attorneys will have lots of zeros in it…

  27. Adam Steinbaugh says

    @Nicholas Weaver:

    The best possible outcome for Johnson would be an outright dismissal. That would let him bring the case again wherever he pleases. If it gets dismissed on jurisdiction grounds, it will be without prejudice, so Johnson could immediately re-file in a *relevant* jurisdiction: NY or CA. Either way, it doesn't matter, as he'll still probably be stuck with California's anti-SLAPP statute.

    Maybe. If Gawker wanted to decrease the risk of that happening, they might ask for a lengthy extension — say, a month — to respond to Johnson's lengthy filing. Add a week or two for the judge and his clerks to figure it out and write a memo, and the ultimate decision might come down sometime after the statute of limitations expires. If it were to expire, Johnson could still try to re-file in California and argue that the statute was equitably tolled during the pendency of the Missouri action, but that doctrine requires the plaintiff to "reasonably and in good faith" pursue his litigation in a particular forum. I doubt this suffices.

    And he'd still get anti-SLAPP'd.

  28. Chuck says


    If the law is so clear here, then why was Michael Mann's case allowed to proceed against Mark Steyn?

    Mann originally filed a defamation suit against Steyn. Steyn deliberately chose not to take advantage of DC's anti-SLAPP statute because he wants a trial, costs and potential bad outcomes be damned. In the meantime, Steyn filed a defamation counterclaim against Mann. Mann, on the other hand, filed an anti-SLAPP motion, freezing all discovery as to Steyn's counterclaims. But because Steyn chose not to file an anti-SLAPP motion against Mann, Steyn was put in the curious position of being forced to respond to Mann's discovery requests (insofar as they related to Mann's claims) while simultaneously being forbidden from taking discovery of Mann (insofar as it related to Steyn's counterclaims).

    Steyn paints this as "the DC court system being a toilet" or something like that. It's not. It's the natural and entirely foreseeable result of the manner in which he chose to litigate the case. In other words: why is Mann's case allowed to proceed? Because Steyn wants it to.

  29. Nicholas Weaver says

    If it gets dismissed he COULD refile, but isn't it the case that unless Gawker wants to go the "drag the guy into court" anyway a'la Charles Carreon, this would give Chuck "I swear under oath I never fucked a goat" Johnson an out of not refiling, while he gets to publicly rail against the oppressive court system?

  30. Adam Steinbaugh says

    @Nicholas: I'm not sure how that would work. Could they file for declaratory relief and drag Chuck into court? Sure, but I wouldn't count on it.

  31. Dan says

    "In other words: why is Mann's case allowed to proceed? Because Steyn wants it to."

    But why is the judge letting the case proceed? The merits to Mann's case are nil. Steyn got cocky because he rightly saw that Mann's lawsuit was ridiculous. He assumed that the court would not let such a ridiculous case go forward. He was wrong.

    As Steyn has said many times, the process is the punishment.

  32. QHStone says

    That said, Johnson has agreed to the court transferring the case out of Missouri to California.

    What?? Why would he agree to that when he went to so much effort to file in Missouri?

  33. Dan says

    "Steyn deliberately chose not to take advantage of DC's anti-SLAPP statute because he wants a trial, costs and potential bad outcomes be damned. "

    Incorrect. Steyn did invoke the DC's anti-SLAPP statute unsuccessfully.

    Of course Steyn wants his day in court at this point, and is no doubt prepared to take things all the way to the Supreme Court. He wants to win big and publicly. Mann should be degraded publicly and made an example of, for the greater good. He represents much that is wrong with modern science. Modern science is afflicted with a cancer of High-Church authoritarianism that is utterly antithetical to scientific method, and Mann is a tumor of that cancer.

    I believe that (some) modern science and (some) modern scientists are deeply inferior to the greats of science that came before them and those like Mann who are intolerant of dissent and willing to use power against dissenting voices are the reason for this inferiority. Real scientists win by the truth of their argument, not by the force of law.

  34. Chuck says


    But why is the judge letting the case proceed? The merits to Mann's case are nil.

    Steyn could have filed an anti-SLAPP motion. He could have filed a motion to dismiss. He could have sought sanctions against Mann's lawyers. He's done none of those things–and each of those is something that a rational actor in the American legal system (especially a jurisdiciton with an anti-SLAPP law) would do if he's convinced the other side's defamation case was brought frivolously.

    Steyn, instead, wants to go to trial. He wants Mann's claims heard by a civil jury in DC Superior Court. That's decidedly not how the civil system treats frivolous claims. Steyn insists on going to trial–on using up all the resources and time that go along with preparing a case for trial, to say nothing of the cost imposed on the public at large (such as a pool of jurors who are stuck earning 10 bucks a day instead of their regular wage). What incentive does the judge, who's overseeing a couple hundred cases, if not a couple thousand, have to say one day, "well, I'm going to take some time to examine the case myself to see if it's frivolous, even though everything the defendant is doing perfectly matches the behavior of a defendant who thinks there are genuine factual disputes that need to be resolved through trial"?

    Steyn wants it both ways. Objectively, he's treating the case like a defendant who thinks Mann's claims, even if incorrect, will rise or fall on disputed facts that, in our system, must be resolved by a jury. But subjectively, he's telling everyone who will listen that Mann's claims are obviously frivolous, that Mann's strategy is to drain Steyn of his time and money, and that "the process is the punishment."

    This is simply untrue. Steyn had a shot at avoiding all the punishing process by filing an anti-SLAPP motion or a motion to dismiss. He might have lost and had to proceed, but he had a shot at it. Instead, he insisted on pushing forward toward the most burdensome, expensive way of resolving a dispute in the American civil system, and now he's complaining about the burden and cost. He who has sown the wind, they say, shall reap the whirlwind.

    (I should note, by the way, that I truly have no idea of the merits of Mann's claims or Steyn's counterclaims. My point is solely that Steyn chose about the worst possible strategy I can imagine for litigating this case, and now he's complaining about exactly what any lawyer could have told him would happen.)

  35. Chuck says


    My apologies for slightly mischaracterizing what happened procedurally with regards to Steyn's lack of an anti-SLAPP motion. He originally filed in concert with the other defendants. The judge denied that motion. The other defendants filed a renewed anti-SLAPP motion. Steyn declined to join in the renewed motion, instead disassociating himself from National Review's representation and striking out on his own (at first pro se, later with counsel). So Steyn indeed refused to join in on an anti-SLAPP motion when he had a chance.

  36. Dan says

    Chuck wrote,

    "My apologies for slightly mischaracterizing what happened procedurally"

    LOL, slightly? You proved yet again (as if any further proof added anything) the endlessly demonstrated principle that SJWs Always Lie ™. Are you only sorry you got caught?

    Steyn's side did file an anti-SLAPP motion. Twice. And lost. Twice. Here is Wikipedia.

    "Mann's lawyer filed the defamation lawsuit in October 2012.

    Before the case could go to discovery, CEI and National Review filed a court motion to dismiss it under anti-SLAPP legislation, with the claim that they had merely been using exaggerated language which was acceptable against a public figure. In July 2013 the judge ruled against this motion,[48][49] and when the defendants took this to appeal a new judge also denied their motion to dismiss, in January 2014."

    True, after a twice-unsuccessful anti-SLAPP effort, Steyn decided that he wanted his day in court. Reasonable, to me.

  37. Mithras says

    I have seen worse briefs filed by lawyers, but very few, and none that were so bad at such length.

    The only ones that come to mind were those filed by Jack Thompson. Those were often long, over limit, and awful.

  38. JTM says

    @Adam Steinbaugh

    I couldn't tell if "7th Circuit Calder opinion" meant Plaintiff's lawyer thinks Calder is a Seventh Circuit case, or whether it was really awkward language to reference the Seventh Circuit case interpreting Calder that the Court relied on in Baldwin. The whole thing is sort of jumbled, and the brief doesn't actually cite to either Calder or the Seventh Circuit case.

    You're right that they didn't sufficiently establish Johnson's ties to Missouri – I think they misread Baldwin so badly they didn't think that was necessary.


    Maybe this is too nitpicky, but is it really helpful for Johnson's affidavit to say "I have never had sexual contact with anyone other than a human being"? When "anyone" is used as a pronoun it typically means "anybody" or "any person," so his affidavit really just says "I have never had sexual contact with any person other than a human being." That doesn't say anything about his possible sexual contacts with non-people things, such as goats.

    If he wanted to rebut the rumor that he had sex with goats, wouldn't it make more sense to say "I have never had sexual contact with anything other than a human being"? Since Johnson is a journalist and is presumably aware of standard English language usage, is there a reason that he didn't use "anything" in his sworn affidavit? Perhaps concerns about perjury?

    Practice question for lawyers: Your client proudly hands you a signed, notarized affidavit saying "I've never had sex with anybody but peoples." What do you do?

  39. Castaigne says


    Of course Steyn wants his day in court at this point, and is no doubt prepared to take things all the way to the Supreme Court. He wants to win big and publicly.

    Question: Hypothesize for a moment that Steyn, for whatever reason, loses, even if he appeals all the way. That they find Mann's arguments more persuasive. What do you think Steyn will do at that point? (No, not advocating, just wondering.)

    Real scientists win by the truth of their argument, not by the force of law.

    *looks at his employer's industries' practices*
    *utters that low, chilling, and nihilistic laugh*
    Oh, if only that were true. If that ever had been true. Money and law dictate what "truth" is. Only fact is determined by science.
    No, I do not consider truth and fact to be the same thing.

  40. David says

    What?? Why would he agree to that when he went to so much effort to file in Missouri?

    He agreed as an alternative argument in the event that the court rejects his claims on personal jurisdiction. It boils down to, "I maintain that this court has jurisdiction to hear my case under the ancient and inalienable law of the Moon, but if you disagree, I'd rather it be transferred to whatever puny Earth court they have in California instead of being dismissed entirely."

  41. perlchpr says

    What I want to know is, is there any chance at all that the Missouri court can order him to defecate upon the floor publicly, as a way of making the false rumor true?

  42. Dan says

    "Question: Hypothesize for a moment that Steyn, for whatever reason, loses, even if he appeals all the way. That they find Mann's arguments more persuasive. What do you think Steyn will do at that point?"

    That's easy.

    Steyn would of course never concede the point, not ever. Because he is right as a matter of principle. Steyn would do his vicious best to disparage every court that fails to recognize his right to criticize Mann. And he would also continue to criticize Mann. My view (and the view of many others) of America's courts would diminish more than my view of Steyn. But he seems unlikely to lose given who he has lined up on his side.

    Look, Steyn continues to criticize Islam without apology, something that has gotten a lot of people killed already. What's a little heat from Mann on top of that?

  43. JTM says

    Plaintiff's lawyer just looks worse and worse. He wanted the brief's "Facts" section to "be considered as a submission of stipulated facts" under the rules governing motions for summary judgment.

    1. John C. Burns doesn't know the difference between a Motion to Dismiss and a Motion for Summary Judgment.

    2. John C. Burns thinks putting a "facts" section in a brief is the same thing as the formal "statement of uncontroverted material facts" required to support a Motion for Summary Judgment.

    3. John C. Burns doesn't know what "stipulated" or "uncontroverted" means.

    4. John C. Burns thinks that it is prudent, when requesting something of a judge, to cite to court rules to which his filings do not conform.

    5. By citing to the local court rules, John C. Burns shows that he is aware that they exist. So he either thinks that it is acceptable to not fully read and understand the Court's rules; that it is acceptable to understand the Court rules but disregard them; or, if he knows his filings are unacceptable, that it is acceptable to knowingly submit unacceptable filings on behalf of a client.

    6. While he doesn't have time to meet filing deadlines or conform to local rules, John C. Burns has had plenty of time to regularly update his website's blog and solicit new clients.

    7. Avvo gives John C. Burns a rating of 8.3, which Avvo characterizes as an "Excellent" rating. Do not hire a lawyer based on Avvo.

    8. Nineteen lawyers on Avvo have endorsed John C. Burns. Do not trust the competency or integrity of any lawyer who endorses John C. Burns. Do not hire a lawyer based on Avvo.

    9. The National Association of Personal Injury Attorneys named John C. Burns as one of its "Top 10 Under 40" this year. Do not trust the competency or integrity of the National Association of Personal Injury Attorneys. Do not hire an attorney based on a recommendation of the National Association of Personal Injury Attorneys.

    John C. Burns is an incompetent lawyer who should not be trusted with any serious matters. Most legal marketing is garbage.

    This case is the gift that keeps on giving. Thanks to Adam and Ken for the updates.

  44. Bill Stewart says

    IANAL, though I've played a politician on TV and on the Internet. And I don't know who Chuck Johnson is, other than from this story and a few previous ones about being someone who's making a trainwreck of a lawsuit against Gawker instead of shutting up and letting people disrespect them.

    But it looks to me like the only excuse for having any jurisdiction to file the suit in Missouri is that Johnson's a sufficiently public figure that he's well-known there and would suffer significant loss to his reputation by having a news source that perhaps often insults celebrities insult him, and if so, then he's got to pursue his suit under well-known-public-figure defamation rules, not just ordinary-person rules.

  45. Matt says

    So, old now, but, basically, Johnson's argument for jurisdiction was "I reported on some stuff in MO once, plus I hired a lawyer there, therefore, I should be allowed to sue there"?

    (And technically, it was more Deadspin, thus Gawker Media rather than, that said mean and nasty things about my Cardinals. Schmucks ;p)

    Hypothetical Question: If I, as a NY resident, thought that, say, the LA Times had defamed me (total hypothetical here, to my knowledge I've never even been mentioned in the LA Times, unless maybe I showed up in a list of National Spelling Bee participants back in the day 20+ years ago), would I have to sue in CA, or would the afore-mentioned Calder or Baldwin (not sure which) case(s) allow me to sue here in NY? As a second question – if I thought Gawker had defamed me, would I have to sue in a NYC court, or could I sue in one here by me in Upstate?


    You've got some Biblical precedent there: "Truth? What is truth?" ;)

  46. Dwight says


    Steyn would of course never concede the point, not ever. Because he is right as a matter of principle.

    That it is 1st ammendment right to hold and express opinions, no matter how silly, or that his opinion that Mann was fraudulent is factual?

    Because that appears to me to be Steyn's biggest problem, that he's convinced himself that Mann factually committed fraud and appears to be proceeding on a course based on that assumption. He seems to be trying to go down the path blazed by William Jennings Bryan, Kansas Board of Ed, Dr. Vasken Aposhian et al and assorted others. *sigh*

    I'm going to speculate here that that's why he when pro se. That his attorneys saw that as a complete losing strategy and when they expressed that to him he either dumped them outright or they refused to follow him down that path in representation. Cut free of sound legal bearings, the self-sabotaging of his case ensued.

    But I'm pretty sure this has been pointed out to you before?

  47. barry says


    it is odd that the brief never explains why Missouri law should apply, since the only apparent reason to file in Missouri is to avoid California or New York law.

    There is the slightly insulting "you should do it because everyone else is much busier" argument on page 68-69.

    it is highly unlikely that Missouri courts are more crowded than those of New York or California.. Sending this case to another forum would result in casting it to an already overworked court, burdening all parties;

    Maybe he thinks he is doing Missouri courts a great favor by giving them something important to do (and read). And they should just be more appreciative of his interest in Missouri. And besides, Gawker insulted their sports teams..

    He also gets the numbers wrong. 18,069 pending in both NY and MO would be an amazing coincidence.

  48. JTM says


    The "you should do it because everyone else is much busier" argument is about venue, not choice of law.

    Jurisdiction and venue are about where the case should be litigated. Jurisdiction concerns whether the defendant can be sued in a particular court – it's a due process issue. Venue is about which court should handle the case. To decide which venue is appropriate, Missouri uses the 12-factor test that the brief addresses on pages 67-70.

    The choice-of-law issue isn't about where the case should be litigated; instead, it's about which state's laws apply to the litigation. Even if the Missouri court were to decide that it had jurisdiction over defendants, and that the Missouri court were the appropriate venue, it would still have to decide which state's law to apply.

    The defendants argue that California law should apply. (Anti-SLAPP Motion, pages 6-8). They want California law to apply so they can take advantage of California's defendant-friendly Anti-SLAPP statute.

    Plaintiff's attorney, the inept John C. Burns, doesn't address this argument at all. The brief talks about whether the case should be heard in Missouri, but makes no argument about which state's law should apply. The only strategic reason* for Johnson to sue in Missouri would be to take advantage of Missouri law, which has a less vigorous Anti-SLAPP statute. So it's unacceptably poor lawyering for kinda-lawyer John C. Burns to completely ignore Gawker's choice-of-law argument.

    *It's also possible that Johnson sued in Missouri because his California attorneys were competent and advised him not to sue, whereas his Missouri pseudo-lawyer John C. Burns said "Yeah sure! Great case! I'll file anything for a sandwich!"

    By the way, his "total number of cases" argument is completely worthless. Dumb-lawyer John C. Burns argues that "judicial economy" favors keeping the case in Missouri, because the California and New York district courts have a higher total number of cases. But that's not what "judicial economy" is about – that factor of the venue analysis primarily looks at whether there are other district courts that are already dealing with the same legal issues. It "was designed to prevent the potential waste of resources that results when cases involving the same issues are pending in multiple, different district courts."

    Even if "judicial economy" did consider how overburdened the court is, the total number of cases a court has doesn't tell you anything about that. The courts have different numbers of judges, different regions tend to have cases of different complexity, courts have different levels of efficiency – it's just not a good metric. Using the same source as wannabe-lawyer John C. Burns, the Federal Court Management Statistics, I'd probably go with median time from civil filing to trial, or percentage of civil cases over three years old. Of the three courts considered in this case, the Southern District of New York has the shortest median time to trial, and the Eastern District of California has the lowest percentage of civil cases over three years old. So even fail-lawyer John C. Burns's own source doesn't support his (totally irrelevant) argument.

    As a matter of judgment and time-management, I can't imagine an attorney who's in the weeds on an important filing thinking, "I know, I'll look up the Federal Court Management Statistics! And spend half a page of my over-the-page-limit brief talking about them! And tell the judge how underworked he is compared to his peers!" John C. Burns should not be allowed to have clients, or pointy objects.

  49. Boris_Badenoff says

    Referring to Johnson as a journalist and Gawker as a news site both seem ridiculous.

    To best serve the interests of justice, all parties should be exiled to remote Siberian and banned from the internet.

  50. barry says


    The choice-of-law issue isn't about where the case should be litigated; instead, it's about which state's laws apply to the litigation.

    Thankyou. That clarified a distinction I wasn't making, and possibly one that John C. Burns wasn't making either.

    Reading the 111 pages gave me the impression part of it was written by Johnson, and part by Burns, but difficult to guess who had the final edit. I'd be willing to bet that even the bits by the random unpaid content editor 'jijijojiji' (pp 36-41) were originally written by Johnson too.

    Great case! I'll file anything for a sandwich!"

    He might have really needed a sandwich. I don't really know how close to death Burns was, or how common pro tramezzino filings are.

  51. JTM says

    These new filings aren't any better – and are in some ways much worse – than the initial filing. A few thoughts (on why John C. Burns shouldn't be a lawyer):

    Motion for Leave to File First Amended Complaint

    This is really poor motion practice. If you're past the deadline for amending as a matter of course, and you need to have the judge approve the amendment, you want to tell the judge (1) the authority for granting amendments (FRCP 15, cases establishing liberal amendment policy); (2) what the amendments are; and (3) why justice requires the amendments (the FRCP 15 standard). This memorandum does none of those things. The whole thing is focused on rebutting possible arguments against amendment, without ever giving the reasons for amendment. It reads more like a reply to an opposition than the initial memorandum.

    First Amended Complaint

    John C. Burns shouldn't be a lawyer. No, really. The judge just struck Plaintiff's opposition to the motion to dismiss, in part because the lengthy fact section was "excessive and inappropriate." The judge (very generously) gave Burns a few days to fix the problems with his filing. Copying and pasting the bulk of the fact section into a First Amended Complaint that he needs the judge's approval to file is a really bad idea.

    The fact section continues to show that Burns has no clue what is relevant to his client's claims. This is about what Gawker and its purported agents said about Chuck Johnson. The First Amended Complaint doesn't start discussing the defamatory statements until page 21 (of 54) – almost half of the pleading is irrelevant crap. It doesn’t matter what Gawker said about Tim Geithner, James Franco, Louis C.K., or Jason Whitlock. Nobody cares about the detailed procedural history of Johnson’s litigation for records about Michael Brown. Greg Howard’s article about Charles Barkley and Eric Garner is worthless to the discussion. The fact section of a complaint should tell a coherent story, and the only story the First Amended Complaint tells is that John C. Burns is a terrible lawyer.

    Worst of all, Burns added a cause of action alleging that Gawker is the government because it benefits from a federal statute: "Defendants are state actors by virtue of their use of CDA § 230, in that they use that statute as a shield to enable them to take otherwise illegal and unconstitutional actions." (FAC, p. 49, para. 271). That's possibly the dumbest thing I've ever seen a lawyer write on behalf of a client.

    Opposition to Motion to Dismiss

    So, John C. Burns is a stunningly bad lawyer. The motion to dismiss was based on the original complaint, which is still the operative pleading in the case. For a motion to dismiss, the Court generally can't consider anything outside the pleadings. Burns needed to cite to facts alleged in the original complaint. But Burns supports his opposition by citing exclusively to the facts alleged in the proposed First Amended Complaint.

    There are a lot of other problems with the opposition, but they all pale in comparison to the fact that he doesn't know which complaint he's defending.

    Also, Burns still goes over the Court's page limit! The Court just struck his opposition for going over the page limit, and gave him one last chance to get it right, and he went over the page limit again! That's not just giving the judge the finger; that's giving the judge the finger while repeatedly driving a car back and forth over his dog.

    Opposition to Anti-SLAPP Motion

    This suffers from the same problem as the last filing. Burns needs to discuss choice-of-law, because if California law doesn't apply then the whole Anti-SLAPP motion fails, since it's based on California's Anti-SLAPP statute. Burns's opposition argues as if California law applies, which is a poor strategic decision. Also, Burns argues that the federal courts can't apply California's Anti-SLAPP statute, but neglects to cite to the 9th Circuit cases that hold otherwise. Aside from being a terrible strategy, it's arguably a violation of professional ethics.

    These pleadings are so clueless, I can't imagine John C. Burns is giving his client competent advice.

  52. Adam Steinbaugh says

    @JTM: Good points. I hadn't noticed that the opposition to the MTD cites the proposed FAC. lol.

    One other thing I noticed was that Burns' first attempt conceded that at least one of the articles was subtle satire. This time around, he's arguing (if I recall correctly) that none of it is satire. Although the first attempt has been stricken from the record, I wonder if that admission estops him from reversing course.

    He's also getting the standard for California's anti-SLAPP wrong by conflating discussions of "public interest" in the context of defamation law with the anti-SLAPP statute's threshold question of whether the statements at issue are ones of public or private interest. These are different. California courts — and amendments to the statute itself — have indicated that this is to be construed broadly.

  53. barry says

    This time around, he's arguing (if I recall correctly) that none of it is satire.

    This time around he seems to be arguing that Gawker isn't even doing defamation, that those bastards are being too careful and subtle with their mocking of him.

    270..inciting defamatory statements from anonymous content creators, publishing said statements, and then skirting liability by carefully and subtly publishing their own thoughts on the statements without confirming or denying them

    'Incitement to defame' isn't a thing is it?

  54. some dude in Canada says

    he says that never before in his life has he publicly defecated?

    In his entire life? Because I'm willing to bet that Mr. Johnson was, at some point in his life… a baby.

  55. Robert says

    I could not state under oath that I have never defecated on a floor.

    I have no idea what I did in my first (approximately) 3 years of life. I may have defected on the floor then. And, I'm not too proud to admit, when experiencing gastrointestinal distressed released in my bathroom what I anticipated to be simply flatulence, which turned out to be conveying a semi-solid payload.