Search Results for: randazza

Marc Randazza Wrote An Amicus Brief About Klingon, And It's Magnificent

So a while ago my friend and co-blogger Marc Randazza texts me. "If a 1 is 'I banged any chick I ever just winked at' and a 10 is 'I can recite hamlet in the original klingon,' how much of a Trekkie are you?"

Marc's been my friend for quite a while now so this text wasn't off-putting in the least. For the record, I told him a 6.

Marc needed some translation help. Why? Because he was writing an amicus brief for the Language Creation Society to argue that Paramount Pictures may have a copyright on Star Trek but it can't have a copyright on the Klingon language. The legal point is a fascinating one: if a language is created in connection with a copyrighted work of fiction, can there be a copyright on other use of the language, even if it's not to speak the lines from the copyrighted work?

This is not a case about Defendants using specific, previously used Star Trek dialogue, such as “Tea, Earl Grey, Hot”, but rather about precluding Defendants from creating original dialogue that happens to be in the Klingon language. Plaintiffs provide no authority supporting their assertion that Klingon (or any language) can be copyrighted. “[T]here is no Klingon word for ‘deference’”, and Plaintiffs are entitled to none. Norwood v. Vance, 591 F.3d 1062, 1074 n. 4 (9th Cir. 2010) (Thomas, J. dissenting).

Whether you like law, or language, or Star Trek, the brief is a joy. Marc continues to demonstrate that legal writing can be entertaining, irreverent, and persuasive at the same time.

Randazza gets PWNED by Troll

Some people in our audience do not know the finer points of trolling…

Wow… there I was, all proud of the article I just wrote about journalism licensing.

And five minutes after posting it, I get word that I've been trolled. Yep. The proposed law was a Second Amendment protest. I would love to say "I knew that all along." No, I did not. I failed to critically examine the story. Epically failed.

I thought about updating the post. No. When I get trolled and epically owned, I need to go to the box for two minutes by myself, and I feel shame.

I go free when you say I go free. I feel shame.

by Marc Randazza

Please Welcome Marc Randazza to Popehat

You may be entering a world of pain, readers.

You may be entering a world of pain, readers.

Long-time Popehat readers are familiar with Marc Randazza, First Amendment badass whose efforts to defend free speech are a frequent subject here.

Now we're very pleased to welcome Marc as a Popehat co-author. He may still blog at Legal Satyricon and CNN on occasion, but watch for his posts on First Amendment and cultural issues here.

Full disclosure: Marc is both a friend and a client, and has sometimes represented me as well. Though we may still occasionally cover his cases, the fact that he's a blogger here now will likely change the nature and tone of coverage, as as we tend to be more sparing in covering my cases.

Please join me in welcoming Randazza.

Roca Labs, Lacking A Hornet Nest Into Which It Could Stick Its Dick, Has Sued Marc Randazza

This crazy litigant goes to 11.

Roca Labs, you may recall, is the weight-loss-goo purveyor that is belligerent, litigious, and sensitive to criticism to a pathological degree. Last month I wrote about how they require their customers to sign no-criticism contracts, and had sued for carrying negative reviews. Yesterday I lit the Popehat Signal to seek help for customers Roca Labs has targeted with vexatious litigation — including, in what no doubt is just a big coincidence, one of the witnesses against them in their first litigation.

Can Roca Labs push the envelope more? Yes they can.

Today Marc Randazza — counsel for in Roca Labs' frivolous suit — filed an updated notice of related cases in the PissedConsumer case. That updated notice revealed that Roca Labs has now sued Randazza himself for his activities defending

The complaint itself — which I have uploaded here — brings the crazy and brings it good and hard. It was penned by Roca Labs' latest attorney, one Johnny G. DeGirolamo, a 2009 law school graduate and 2011 bar admittee, whose website is No, really. His site offers a flattering headshot of a smiling advocate, and it was a very good choice to use that picture rather than, say, his booking photo.

Roca Labs, through Johnny G., accuses Marc of interference with economic advantage and defamation per se1, demands a declaration that Randazza is wrong and he is libel, and moves for an injuction telling Marc to shut up. Yeah, good luck with that.

But that ain't all. The complaint is a model of prissy pearl-clutching. Johnny G. is aghast that Randazza has provided legal services to adult entertainment companies. Goodness gracious! Johnny G. is horrified that Randazza has been "an outspoken advocate for Phillip Greaves, the author of 'The Pedophiles Guide to Love and Pleasure.'" To be more accurate, Randazza has been an outspoken advocate for the First Amendment issues presented by Greaves' case, but it's not surprising that a First Amendment distinction is lost on the sort of attorney who wold represent Roca Labs. Johnny G. is cheesed off at Randazza's catchphrase murum aries attigit, which apparently suggests a level of aggression that is upsetting to a company that flails around suing its customers for criticizing it. In short, Johnny G. — bless his heart — does his best to make Marc Randazza sound terrible, and only wind up making him sound knowledgeable about free speech.

On to the substance of the claim, if I may use the term very generously. Roca — through Johnny G. — asserts that Marc has been defaming Roca Labs during this litigation by making statements to the press (or, as Johnny G. puts it, to "webzines") and then putting those same statements in court pleadings. They imply he's trying to cloak his statements to the media with litigation privilege by repeating them in court filings. This theory is . . . odd.

Moreover, Johnny G. and Roca Labs are conspicuously vague about exactly what statements are defamatory, and exactly how. Other than complaining that Randazza defamed Roca Labs through a very clearly satirical tweet on Halloween, there are few specifics. Roca Labs complains that Randazza's purpose is to "mock, ridicule, humiliate, harm, and continue his war against ROCA," but that's not very specific. Roca Labs complains about statements in articles by TechDirt and tries to attribute them to Randazza, but doesn't explain exactly what Randazza said and exactly how it was wrong. That lack of specificity is probably deliberate — if Roca Labs admitted they were mad over the term "snake oil," they'd have to confront the fact that the phrase is obviously protected opinion. See, e.g., Phantom Touring v. Affiliated Publ'ns, 953 F.2d 724, 728, 730–31 (1st Cir.1992) (holding that description of theatre production as “a rip-off, a fraud, a scandal, a snake-oil job” was no more than “rhetorical hyperbole”). Moreover, in some parts of the complaint Roca Labs is attacking statements that are clearly, objectively true based on Roca Labs' own court documents. For instance, Roca Labs angrily quotes a paragraph in which TechDirt accused them of trying to silence customers. Which is what they are doing.

Finally, the complaint attaches a motion for a temporary injunction, in which Johnny G. demands that Randazza cease and desist saying mean things about Roca Labs, retract prior mean things, and remove any online content about Roca Labs. At this point I have to admit that I don't know whether Roca Labs and Johnny G. are powerfully stupid, breathtakingly cynical, unapologetically unethical, or all three. Despite the fact that they are suing a renowned First Amendment lawyer, despite the fact that they are demanding an injunction silencing him, despite the fact that they have lost a similar injunction request in which Randazza schooled them on the First Amendment and prior restraint issues, and despite the fact that it is clear those issues will arise again, their motion makes no mention whatsoever of the overwhelming First Amendment and prior restraint issues presented by their demand.

Roca Labs is mistaking aggression for strategy. Randazza, by filing his notice of related case, has alerted the federal court hearing the case that Roca Labs is flailing around suing opposing lawyers, which will not go over well. Roca Labs has hired what appears to be an improbably matriculated Muppet to champion their case, despite a patent lack of qualifications. Roca Labs thinks that suing Marc Randazza to shut him up is going to end well. They should have asked Raanan Katz or Crystal Cox how that would turn out.

I'm calling it: Roca Labs has achieved Prenda status.

Edited to add: Adam Steinbaugh explains why Roca Labs' attempt to evade the litigation privilege is so frivolous.

Marc Randazza Defeats The Very Sensitive Raanan Katz On Prior Restraint Issue

Remember Miami Heat owner Ranaan Katz? He's the easily offended fellow who goes around suing people because there's a mildly unflattering picture of him on the internet. Previously I wrote about how he sued a blogger who was relentlessly critical of him, threatened to sue the blogger's lawyers — including First Amendment badass Marc Randazza — for representing her, and eventually convinced a Florida judge of questionable judgment to issue a broad, unprincipled, and unconstitutional prior restraint against blogging negatively about Katz.

Sometimes the bad guys win, I said after that ludicrous injunction. But there's another apt cliche — it ain't over 'till it's over.

Yesterday the blogger, represented on appeal by Marc Randazza and Jeffrey Crockett, won on appeal. Their victory was won in part by the hard work of Darren Spielman and Robert Kain in the trial court. The Third District Court of Appeal for Florida issued a broad and helpful opinion soundly rebuking the trial court for its prior restraint injunction.

I've been talking about prior restraint in the context of the Roger Shuler story. The concept, at its heart, is that the law (both constitutional doctrine and the common law of most states) allows a court to punish some speech after it happens, but with very few exceptions doesn't allow injunctions prohibiting speech in advance. The Florida court was blunt about the impact of Florida law:

Injunctive relief is not available to prohibit the making of defamatory or libelous statements. See, e.g., Vrasic v. Leibel, 106 So. 3d 485, 486 (Fla. 4th DCA 2013). A temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns. Id.

The court noted a Florida exception — prior restraint might be permitted when the speech at issue is not just defamatory, but also constitutes a business tort like interference with business relationships. You can see how that could become the exception that swallows the prior restraint rule when the censorious plaintiff is a businessperson like Raanan Katz. Fortunately the court here demanded more than allegations; it demanded proof of interference with business relationships from the blogger's insults, and found that Katz had provided none:

However, as in Murtagh, the record before us fails to support an inference that Ms. Chevaldina’s blogs are having a deleterious effect upon prospective tenants. The temporary injunction should have been denied for a failure to show with reasonable certainty the elements of tortious interference, as there was no evidence of unjustified interactions with specific parties known to be involved, or likely to be involved, in an advantageous business or contractual relationship with the appellees.

(By the way, it's not clear to me at all that this Florida doctrine of "prior restraint is acceptable if you associate it with another tort in addition to defamation" meets constitutional muster, but this decision shows a court requiring actual proof of harm, which is a good thing.)

Moreover, the Florida court also found that the injunction below was overbroad — that is, it swept far more speech than what could be arguably defamatory, and prohibited far more than the rare cases permitting prior restraint have allowed:

The injunction under review prohibits Ms. Chevaldina from: “directly or indirectly interfering in person, orally, in written form or via any blogs or other material posted on the internet or in any media with Plaintiffs’ advantageous or contractual business relationships”; and “directly or indirectly publishing any blogs or any other written or spoken matter calculated to defame, tortuously interfere with, invade the privacy of, or otherwise cause harm to Plaintiffs.” This injunction improperly burdens Ms. Chevaldina’s speech more than necessary, attempts to enjoin future defamation, and fails to put Ms. Chevaldina on notice as to what she may or may not do under the injunction.

That language is key. As I said before, one of the main flaws with the unprincipled prior restraint order the trial court issued was that it was impossible for the blogger to determine what speech was prohibited, and the order effectively prohibited even truthful negative speech about Katz.

The court also overturned the injunction against trespass and stalking, finding that Katz had not submitted evidence of such activities, and rejecting the notion that blogging is "cyberstalking":

The appellees argue that Ms. Chevaldina’s blog posts constituted “cyberstalking” and therefore provided “incidents of violence,” i.e., stalking, as to justify an injunction pursuant to section 784.046. However, the appellees failed to introduce evidence that specific blog posts were being used “to communicate, or to cause to be communicated, words, images, or language . . . directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.”

This part of the ruling is important because overbroad notions of "cyberstalking" and "cyberbullying" are now a primary front in the war between free speech and censorship; it's common for censors to argue that unwelcome online speech about someone should be treated like repeated unwelcome communications to the person.

Finally, the Florida court ended with a helpful flourish, putting blogging into the the context of classic rhetorical tropes of free speech analysis:

Angry social media postings are now common. Jilted lovers, jilted tenants, and attention-seeking bloggers spew their anger into fiber-optic cables and cyberspace. But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk in front of an auto dealer that proclaimed, “DON’T BUY HERE! ONLY LEMONS FROM THESE CROOKS!” Existing and prospective customers of the auto dealership considering such a poster made up their minds based on their own experience and research. If and when a hypothetical complainant with the poster walked into the showroom and harangued individual customers, or threatened violence, however, the previously-protected opinion crossed the border into the land of trespass, business interference, and amenability to tailored injunctive relief. The same well-developed body of law allows the complaining blogger to complain, with liability for money damages for defamation if the complaints are untruthful and satisfy the elements of that cause of action. Injunctive relief to prohibit such complaints is another matter altogether.

This is exactly right. Censors attempt to treat blogging as something substantively different that takes it outside classic free speech protections, but there is nothing new under the sun, and blogging gets the same protection as other speech.

This is a huge and embarrassing defeat for the thin-skinned and entitled Raanan Katz and his aggressively censorious lawyers, and a huge victory for Marc, Jeffrey, Darren, Robert, and free speech. Well done. DON'T SUE ME RAANAN.

"The Takedown Lawyer": Let's Help Marc Randazza Investigate A Scammer, Shall We?

I've been out of sorts of late, riven with the suburban fin de siècle, plagued with ennui, angst, weltschmertz. You know — moping.

There's only so many free speech cases I can write about in a week. Nobody pony-worthy is writing to me. I'm waiting for a couple of shoes to drop on the UST Development fraud investigation.

If only there were a nice juicy scam out there to chase . . .

Marc Randazza to the rescue!

[Read more…]

Marc Randazza, Whose Side Are You On?

In the great Man-Ape war, Marc Randazza was once once of humanity's most trusted leaders. Hell, like I said before, he declared the War on Apes.

So why is he now fighting for the intellectual property rights of the ape-kin, rights that will only be used to weaken humanity's will with the apes' seductive wildlife photography and reality television programming? Has he faltered? Has he weakened? Has he changed sides and betrayed us? Or, giddy with victories over copyright trolls and dog-shooting SLAPP-suiters, does he imagine that he has transcended right and wrong, friend and foe, Man and Ape?

Don't forget where you came from, Marc Randazza. Those apes may groom you, they may pound their chests and roar in a manner that appeals to your litigation style, and they may even display a better grasp of the First Amendment than the average state legislator. But always remember that you are not one of them. You're one of us, God help you.

Marc Randazza, My Weird, Scary Hero

We'd have covered the lawsuit filed by University of Miami law professor Donald Jones against the legal gossip site Above the Law yesterday, except that we were busy.  And everyone else got to it first.

Suffice it to say that the lawsuit was ridiculous.  It betrayed fundamental misunderstandings of law, and the nature of the internet on the part of its author. The best blogposts on the matter were written by Ben Sheffner, analyzing the demerits of the suit, and Eric Turkewitz, who played against type and provided wise, conciliatory counsel to the plaintiff, the sort of advice one might expect from, oh I dunno, a law professor.

(And by, "against type" I don't mean Turkewitz isn't wise.  I mean that his conciliatory advice doesn't play into the stereotype of a plaintiff's personal injury attorney, but I digress…)

The suit was dismissed, voluntarily and without prejudice, one day after news of it broke on the web.  We're pleased to note that Above the Law was represented by longtime Popehat friend Marc Randazza, who blogs on the First Amendment among other things at the Legal Satyricon.  Randazza got the case dismissed with one letter.

Randazza, an "adjunct" professor himself (meaning he actually practices law) has long maintained that the legal academy does a poor job of educating its students.  Non-adjunct, "academic" professors, tenured or not, are often so removed from the practice of law (at least as it relates to litigation) that they have little of practical benefit to offer the eager young minds who pay their exorbitant salaries.

I think this case proves Randazza's point.

No, the ABA Did Not "Censor" a Story About Donald Trump Being a Censorious Asshat

Why would I need to "censor" anything? I can destroy the world by accrediting another branch of Cooley Law!

Why would I need to "censor" anything? I can destroy the world by accrediting another branch of Cooley Law!

The story about the ABA “censoring” Susan Seager is not what it seems. One Newspaper reported “US lawyers 'too scared' to publish report on Donald Trump baselessly suing people – in case he baselessly sues them.” (source) With everyone falling over themselves to complain about Donald Trump and censorship, the real victim seems to be the facts – not free expression.

First, let me introduce you to the characters:

Susan Seager: She is a kick ass writer and a kick ass First Amendment lawyer. I admire her. She’s on a mission to inform us that we need more Anti-SLAPP laws.

Donald Trump: A censorious ass-hat. ‘Nuff said.

The ABA: I have previously called them "the most worthless bunch of do-nothing abject imbeciles in the history of any trade association.” I think that was not harsh enough.

If you listen to every commentator on the story, Seager submitted an article that criticized Donald Trump. The ABA then refused to publish it, because they were afraid that Trump would sue them.

What really happened?

Seager submitted an 15-page law review article to The Communications Lawyer, an ABA law journal. In the 6,500 word, 81 footnote article, the vast majority of the content was untouched from her original draft. But, the publisher of the Journal wanted some changes. Seager wasn’t happy about it, and documented a lot of the requested edits.

For example, Seager writes:

My catchy and accurate headline, “Donald J. Trump Is a Libel Bully but Also a Libel Loser” would be changed to the bland “Presidential Election Demonstrates Need for anti-SLAPP laws.”(source)

She also complains that they wanted other changes:

My first sentence, “Donald J. Trump is a libel bully” would be replaced by the dull wording, “One of the many interesting facets of this year’s Presidential campaign has been the multiple attacks on the media, the First Amendment, and the judicial system itself by one of the candidates, Donald J. Trump.”(source)

You can see all of the edits in (this Washington Post breakdown). One notable one is here:

Original: Trump has zero sense of humor. But, boy, can he file a hilarious lawsuit! He proved that much when he sued HBO Real Time cable television show host Maher for not making good on Maher’s joke that Maher would donate $5 million to charity if the orange-haired and orange-tinged Trump could provide a birth certificate showing that Trump was not the “spawn of his mother having sex with an orangutan.”

Edit: Trump proved he can file a hilarious lawsuit when he sued HBO Real Time cable television show host Maher for not making good on Maher’s joke that Maher would donate $5 million to charity if Trump could provide a birth certificate showing that Trump was not the “spawn of his mother having sex with an orangutan.” (source)

I do a lot of writing too. Popehat doesn’t edit my work, but CNN sure does. I can assure you that most of my CNN articles didn’t look exactly the way they do when CNN hits “publish.” In fact, my first drafts are full of ad-hominem attacks, colorful language, and tangential arguments that attack pet peeves of mine. Fortunately, I have editors there that help me tighten it up, suggest changes, and remove distractions from the main point. If you look at the ABA’s edits, that’s what the vast majority, if not all of them, do.

Look up above, where Seager complains that the ABA suggested changing her first sentence. As a lead sentence, her version, well… sucked. The ABA’s suggestion is what a lead sentence should be – a short, tight, best-you-can summary of what you’re really talking about. The headline? I think the ABA’s is better than hers too. The real mission that Seager is on here is to show that we need better Anti-SLAPP laws, right? Or is her real mission to just jump up and down and mock Trump? The “orange” discussion suggests that it is the latter. Sure, it’s was more fun to write, and maybe even more fun to read, but does it do the job at hand?

And while I too prefer to write something more fun and colorfully, and to advocate my position, that is not what an article in a journal like The Communications Lawyer is supposed to be all about. An editorial? Sure. A PopeHat article? Fuckin-a. Law journal? Not so much.

So, did the ABA “Censor” her?

That is the current narrative. But, in reality, there was no “censorship.” It is called editing. In fact, the article outlining the editorial process shows that the ABA was willing to work with her on a lot of their proposed edits. (source)

But, Seager makes clear that she simply rejected their edits. She apparently didn't even want to discuss the proposed edits. (source – “We did not refuse to publish it,” says Stevens, adding that the ABA never had a chance to discuss changes with Seager.")

I told the ABA I would not change my article and withdrew it. (source)

Later, she even admitted that part of her decision was based on the fact that the ABA could not guarantee that the article would not be out before the election.

She withdrew it. In light of some really light, and frankly good edits, she decided to take her ball and go home. Dramatic effect, over 9,000.

George Freeman, another former chairman of the forum, argued that the ABA's rejection of the article betrayed its mission. "As the guardian of the values of our legal system," he said, "the ABA should not stop the publication of an article that criticizes people for bringing lawsuits not to win them but to economically squeeze their opponents." (Source)

Freeman missed the detail that the ABA did not “stop” the publication; they offered edits. And, for the ABA to have “betrayed” a mission? In my opinion the ABA does that all the time. In fact, I think one of the ABA’s mission statements is – to completely fuck over the legal profession. I hate the ABA. I think I made that clear. But, in this case, I find myself defending it.

ABA Deputy Executive Director James Dimos said that he was concerned with the “the ad hominem arguments made in the article.” He also said, “The publishing of a partisan attack piece in the midst of a highly charged election season will certainly create the perception that the ABA is aligning with one political party against the other and will hurt our credibility with members.” (source)

He also acknowledged that by including the ad hominem, it increased the risk of litigation. This is true. No media lawyer has ever been asked for a pre-publication review, and not warned his client to tone something down to minimize the risks.

And as someone who has published my my fair share of law review articles I can assure you that editor after editor has said the same thing to me. When I submit an article, it comes back slathered in red ink. I even made changes to this very article, including removing the phrase “sucked ass,” at the suggestion of my partner and ad-hoc editor.

Seager? She makes some great points, but disproves her “censorship” claims by defending her use of “colorful” language.

I too think most lawyer articles are boring. I am a journalist at heart and try to keep the law from deadening my writing. I used lively language in my article to attract an audience beyond lawyers. .”(source)

You know what? I agree with her. I have this argument with every law review editor, every magazine editor, and my CNN editors. Every. Single. Time. Sometimes I win the debate – telling them that I think that some funny shit I put in there really makes the point. Other times, the editor insists. I’ve pulled my articles before, when I had editors I couldn’t agree with. That wasn’t censorship, that was me making an author’s choice.

And this was Seager making an author’s choice.

But, don’t get me wrong. I don’t want to reprobate Seager. I still admire her. And, I’m grateful to her. You see, she made this point at the end of her (sorry, Susan) bullshit piece claiming she was “censored.”

I am fortunate to live in California, where a special law would allow me to bring a quick motion to dismiss Trump’s speech-related claims and force him to reimburse me for my attorneys’ fees if I win. The California law is known by the confusing name, the anti-SLAPP law, meant to curb speech-chilling lawsuits known as Strategic Lawsuits Against Public Participation (SLAPP). We need more of these law in other states. .”(source)

To use one of Trump’s favorite phrases, it’s “sad” that the ABA censored my article. The ABA proved my point: that Trump chilled speech by using baseless lawsuits and empty threats.

You see what she did there? She lied. She bullshat. She played the drama card.

But you know what else she did? She got a lot of people talking about passing a national Anti-SLAPP law. In fact, I’ve yelled about this for years. I wrote a fucking law review article on it that maybe 50 odd people bothered to read. I post about it obsessively. And for all my work, for all these years, Seager accomplished more by throwing this one ball of crap into the press’ shit-slathered cage of lazy fucks who would have been kicked in the face before they graduated from my J-school than I accomplished in all that time.

So this is not a piece bashing her. This is a piece praising and thanking her. Shit, I'm even jealous of her. I couldn't have pulled this shit off.

I hope that this piece doesn’t change your mind about the ultimate moral of the story – that we need a nationwide Anti-SLAPP law.

But, we also need less bullshit. We also need fewer people to be more stupid after they read the news.

But the bullshit spread isn’t Susan’s fault. She played the game, played it well, and did her (our) cause some real good. That’s what a public relations move is about. And this Valkyrie of the First Amendment kicked some ass for the cause. Ironically, this is the same technique that Trump used to troll the media.

But, that press that we fight so much to protect? Dammit, they did a shitty job of vetting the story. About as shitty as the ABA does everything else – except editing this one article.

And Susan’s article? Far from being “censored,” you can read it right here.

I personally think the ABA's edits would have made it better. But, had she accepted the edits, we wouldn't have had a bunch of shrieking stupid journalists repeating the story and spreading the word that we really, really, need Anti-SLAPP laws.