Milroad Trkulja Is Not A Gangster; Stuart Gibson Is, I Suppose, A Lawyer

These days it's not easy for a legal threat to distinguish itself. There are so many of them, and it's common from them to be bumptious and ignorant.

That's why I have to tip my hat to Stuart Gibson, an attorney at the Australian firm Mills Oakley. He has risen above the pack.

Mr. Gibson charges heedlessly into a crowded subgenre: threatening people for merely talking about you. The genesis of his bluster is a 2012 post at Techdirt discussing an Australian court victory against Google by one Milroad Trkluja, who was displeased that Google searches of his name brought up pictures of an underworld figure. That's not so bad; Googling my name brings up pictures of Jabba the Hutt cosplay. Anyway, Techdirt's article criticized the decision but made it perfectly clear that Mr. Trkulja was not, in fact, a gangster, and that his image only got connected with a gangster because he had the misfortune to be an innocent bystander in a shooting.

More than three years later, Trkulja sent Techdirt and Google a bizarrely entertaining legal threat complaining about a comment on the 2012 story that suggested that he was the sort of "gangster" who uses courts rather than guns. Trkulja demanded money, the deletion of the offending comment and anything ever written about him, and to block Techdirt. This was amusing and noteworthy; it's exactly the sort of flailing threat Techdirt writes about all the time.

Enter Mills Oakley attorney Stuart Gibson. He sent Techdirt a threat that, while much shorter and less floridly pro-se nutty than Trukulja's, was in its own way just as ridiculous.

This is the rotten core of it:

The matter that you have published conveys false and defamatory meanings including (but not limited to) the following:
Our client is a gangster;

That our client by virtue of his legal claims is incompetent and unfit to be a litigant;

That our client by virtue of his legal claims is a ridiculous litigant;

That our client is a criminal and a participant in organised crime;

That our client is unfit to be a litigant

None of these meanings is defensible. Our client is not a criminal and has never been a gangster nor associated with such persons. Accordingly there is no factual basis for the imputations published.

This is entertainingly preposterous. Techdirt never suggested Trkulja is a gangster; a commenter jokingly suggested he is a litigation gangster. Techdirt's suggestion that Trkulja's legal threat is ridiculous (which Gibson spins as "unfit to be a litigant") is a classic case of opinion based on disclosed facts — the fact in this case being Trkulja's nutty legal threat.

Gibson finishes with bluster about how his firm has enforced Australian judgments against other companies, about how American law will not protect Techdirt, about how Techdirt's free speech defense is "absolute nonsense," and so forth.

Gibson is, of course, utterly full of shit. This is exactly the sort of bullying threat that the SPEECH Act, 28 U.S.C. section 41202, is designed to render impotent. Australia is beautiful and its people are lovely and its laws have many things to recommend them but, with respect to protection of free speech, it is a jurisprudential shithole. Congress passed the SPEECH Act to ensure that law-thugs like Mr. Gibson could not silence speech by obtaining defamation judgments under legal regimes that lack adequate protections for free speech. Mr. Gibson is free to get an Australian judgment against Techdirt — indeed, Australian courts are popular with libel tourists and folks with ambitions to control speech worldwide. But unless Techdirt has assets in Australia, that judgment will be worthless.

Under the SPEECH Act, American courts won't recognize and enforce foreign defamation judgments unless the party seeking to enforce them carries the burden of proving that (1) the foreign court's exercise of personal jurisdiction over the defendant satisfied American concepts of due process; (2) the foreign court's ruling complied with Section 230 of the Communications Decency Act of 1996, which says that web sites can't be held liable for defamation for comments left by third parties; and (3) either the foreign court offers as much free speech protection as American courts, or American courts would have reached the same result on the defamation claim. Stuart Gibson's threats on behalf of Mr. Trkulja fail all three of those tests. Australia has no plausible personal jurisdiction claim over Techdirt; Gibson and Trkulja are trying to hold Techdirt responsible for a comment left by a third party; and Trkulja's and Gibson's silly claims would never stand up to First Amendment scrutiny. Among other things, Australia apparently treats truth as a defense, requiring defamation defendants to prove that their statements were true, rather than requiring the plaintiff to prove that they were false. That, standing alone, is enough to fail the SPEECH Act test. Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 489 (5th Cir. 2013) (Canadian judgment was not enforceable under SPEECH Act because, among other things, it placed burden of proving truth on defendant). Moreover, Mr. Gibson's suggestion that Techdirt can't make fun of Trkulja for writing a very silly threat is sheer idiocy, and I suspect would be even under Australian law.

One can imagine why Mr. Trkulja would act this way — he's an angry litigant, not an attorney. But why would Stuart Gibson, who appears to be a real-life lawyer at a reputable law firm, act this way?

There are several possibilities. One is that Stuart Gibson is willfully ignorant of relevant American law. This theory has some appeal, especially when you consider that this is the entirety of his analysis of the SPEECH Act in his threat to Techdirt:

You are not protected by the Speech Act.

Another possibility is that Stuart Gibson knows the relevant law but is hoping that Techdirt doesn't — that he hopes that Techdirt is ignorant or easily intimidated enough to yield to legally meritless demands. This merely demonstrates another form of willful ignorance; the briefest investigation of Techdirt's history would reveal that it stands up to stupid legal threats all the time, and in fact publicly mocks them. If this is the case, then Gibson has failed to follow one of the core rules of writing an effective and non-own-foot-shooty takedown letter: he didn't investigate his target.

A third possibility is that Stuart Gibson is a hotheaded buffoon incapable — whatever he knows or doesn't know — of maintaining communications discipline. This explanation, too, has a certain appeal. I wrote Mr. Gibson seeking comment and some of his responses suggested a failure of self-control:

What you can say is that I have challenged Mike to accept Service of Proceedings and to espouse his theories in Court here.I have been trying to effect Service on him.

We are at this time trying to serve him/it.
I do not think it understands Australian Defamation Law.
We have no Free Speech law in this country.

What are you doing writing for this trashsite

And so forth.1

There is a type of gormless lawyer who becomes incensed when his or her idiotic demands are not met with immediate compliance; Mr. Gibson appears to be such a buffoon.

Finally, it's possible that Mr. Gibson is actually very clever and is just setting this matter up for Mr. Trkulja for another Australian lawsuit against Google seeking damages for the existence of websites that do not fluff him. Lord knows such train wrecks are possible there.

Mr. Gibson and Mr. Trkulja perform useful service: they illustrate exactly why Congress was right to pass the SPEECH Act, and exactly why we should be thankful for America's unusually broad and robust defense of free speech. Do you want people like Stuart Gibson dictating what you can say and whom you may ridicule? After all, Mr. Gibson is the sort of lawyer who says "we have no Free Speech law in this country" — and is happy about it, because it allows him to act like . . . well, like a gangster.

Legal Marketing Supergenius Patrick Zarrelli Finally Gets Around to Threatening Me

It's hurtful to be left out.

That's why I've been miffed at Patrick Zarrelli. Dude's threatened everybody who is anybody amongst mood-disordered middle-aged lawbloggers. Scott Greenfield. Mark Bennett. Brian Tannebaum. Keith Lee. But not me. What the fuck, Patrick Zarrelli? Am I not a man? Am I not a lawblogger? If you annoy me, am I not a prick?

But it's all better now. Patrick's sent me my own rant. I feel . . . pretty.

There's backstory, of course. It begins, as narrative convention requires, in Florida. Gary Ostrow is a lawyer, technically. He posted an amusingly buffoonish self-promoting press release, which drew derision from lawbloggers. A year later, Ostrow reacted with tragicomic threats and bluster against the lawbloggers, which is like attempting to deter a dog by throwing bacon at it.

Ostrow, showing the acumen that led him to bluster at lawbloggers in the first place, hired a cartoon character named Patrick Zarrelli to fix the situation. Patrick Zarrelli is what you would get if a spray tan achieved semi-sentience. Now remember: when you outsource your marketing, you outsource your ethics and reputation. Zarrelli descends into an arm-flailing frenzy of bumptious threats, weird phone calls, demented state bar complaints, phantom criminal charges, and general dipshittery, nicely summarized here and here. Hiring Patrick Zarrelli to fix your online reputation is like hiring Mad Max to detail your car.

I didn't write about Patrick Zarrelli, in part because of a nagging suspicion that he's a hallucination resulting from certain pharmaceutical imbalances and preoccupations with bad marketing. But this go-around, after he threatened Keith Lee again, I decided to write him asking for a comment. I sent him a message on his Reddit account:

Dear Mr. Zarrelli,
I write about free speech issues, and especially the intersection of legal threats and online culture. I'm working on a story about your legal threats. I write to ask if you'd be interested in or willing to answer some questions or provide any comment.
Thank you,
Ken White

The result was everything I could have dreamed.

Lol Ken, you write for one of the sites who attacked me! In the attack the lawyers said I do cocaine, my mom is an alcoholic, my dad was arrested for cocaine trafficking lol. All of these are complete lies, and just the begging of the libelous speech they used against me. Moreover they did it on their official legal websites. Where they do not have free speech, they actually have heavily governed speech by their respective bar associations. We have multiple complaints in committee right now, a couple more in appeal. The attack against us was organized, but weak, the attorneys are not web developers, they are just blowhards, with nothing but blog posts in their arsenal. Which leaves them very vulnerable online. As far as I can tell my team online is much better than the loose affiliation of the people attacking me. Also my name is already ruined online and will never be completely fixed. So us retaliating has zero affect on me, just like your article will. As a matter of fact the more you guys write, the more it will begin to drown itself out online, and the more fuel you will provide our counter articles. So im not sure what you are trying to do here? Would you like to be included in this online war? Go ahead! Lets see what a mess we can make of everyone's good names online!!!

About the attack against me: The lawyers all know each other and work together online it was not an organic attack, it was manufactured.
Also as soon as the lawyers wrote with that language and misinformation on their official sites they were bar complaint worthy. Hence why some went all the way to committee.

As soon as they left their sites and began attacking me on my social media pages, and constantly calling my house and office, it became stalking and harassment. Hence why they have criminal charges sitting on the State Attorneys desk right now for their associates like Tim Cushings.
Also we own every attorneys name and every person who attacked us online even every commentator. As soon as the complaints are over we will be launching response websites for all of them. Then we are going to follow it up with mulitple national press release to tie these attorneys to their darkest blogs for life.

I do this for a living I have over 10,000 published blogs. I have programmers, designers, and an army of writes on staff. I own more sites than all of you combined and have over 80 other sites, with blogs, under mgmt. So you attack does not scare me and is pathetic. I have more than enough resources for a legal fight, and I have enough online resources to bury these attorneys and their fellow attackers in avalanche of press.

I only sat quit during the attack, because I wanted to let them all bury themselves and burn themselves out. Again I do this for a living. Now there is literally nothing else they can do to me. They have done their worse. Why do you think a blogger/programmer like me would sit and say "please stop attacking me?" I was letting them dig their hole. I could have battled with them right then and their but that would have been fools gold. Since I knew the bar complaints were coming out, I wanted my side clean, and I wanted to give the bar the fair chance to police its own. Those sanctioned by the bar will be left out of the responses. Those unsanctioned will receive multiple response articles and their very own website!

When the complaints are over, I will put up my responses in an organized and sweeping manor and since lawyers are always Googled before people use them it will cost the attorneys tens of thousands of dollars in cases. Moreover I'm going to be releasing a myriad of press releases including "Texas Bar Supports Cyber Bullying" "Said Lawyer Tries To cyber Bully Web Developer" "Pathetic Lawyers Try to Act Tough Online" Etc. I'm going to show everyone all the lies in these articles, then I'm going to tie the attorneys, and their bar associations to these blogs permanently online.

I have multiple attorneys and copy right agents I work with that will review everything before it goes up. I literally have probably 25 attorneys sites under management and have been sued by Charlie Sheen, Farrah the Teen Mom, and host of other people way more powerful than the people attacking me and have never lost a case. I cant even remember the last time I didn't have a case pending in federal or state court for one of my media sites. So I'm def not scared of a legal battle or these group of attorneys who are at the bottom of their respective fields. As far as I can see because Ive researched everyone involved. Im way more successful than any of them. I think because they keep sharing a Twitter pic from 20 years ago, and since they attacked me while I was breaking my site into The Print Killer Media Network (My site was ranked in the top 10% of the nation and had 40,000 articles on it, so it need to be smashed into multiple sites for greater success, traffic, and advertising revenue). That im weak online or just a kid. But, the reality is I'm much more successful than all of them combined, and am a 36 year old adult not a kid, running a top tier tech team. Mo rover we do this everyday, we get paid to do this, I can literally send out an email to my writers on a particular topic and easily publish 40+ articles a day. So i can bury each attacker with one days work. Not to mention we are online all day, so if they try to clean their name we will simply SEO our stuff back to the top. Im not looking at this like a a quick brawl online, I'm looking at this like a life long fight.
Meanwhile since the attack on me and my family from the attorneys I actually got more clients! So this whole thing is just going to feed me rep mgmt client after client, its going to be good free marketing for me. I got two clients that the attorneys attacked themselves being cleaned online as we speak! They called me after the initial attack and said they had been attacked by the attorneys as well lol. Thanks for the free $10k referral guys!!! That's really the only reason I didn't file the federal lawsuit against them. I knew I had them by the balls with the libel claim, but I had not damages. Literally no one I know has ever read their blogs, no one has ever even mentioned it to me.

You're older esteemed lawyer Ken White correct? I know you were referred form the other lawyer I spoke with yesterday. Because I never use this page. So why pose like your going to write an honest article, when you work with a site I filed a bar complaint on? Why pose like your writing an honest article when you were sent to this page by a lawyer attacking me? that seems pretty dishonest and unethical don't you think?

The company who organized this attack Tech Dirt. Is broke. Has written about leveraging and manufacturing the "Streisand affect" to bully people online. Which means they knew exactly what they were doing, that it was unethical, and most likely illegal. Its not free speech to organize against someone and spread libelous speech intentionally in an attempt to hurt them because they filed a bar complaint on you. When this all comes to light, and it will soon, You guys are going to be shows as a bunch of legal bully's, trying to protect their own, in a fraudulent and libelous attack on a lay person. And I'm pretty confident the public will take my side. I have meticulously tracked all of you, your affiliations, your firms, and this attack. I have documented and screen shot all communications including some on social media and in hidden online news rooms.

Here is a neat link on the company who started this attack Tech Dirt:

[link to even bigger lunatic's disturbing site omitted]

You guys are going to look really professional and honest attached to this press release.

And shortly thereafter:

Hey Ken, whats with you and the other guy ion reddits chins??? Whats in there liquid? Fat? What exactly do you have to eat to get a chin like that? Im just curious. I mean attack me if you want, I just feel sorry you guys have to live like that. Whens the last time a hot girl kissed you on the neck??? LMAO

The chins. It's always about the chins. (Patrick seems to be preoccupied with chins, actually.)

I replied:

Thank you for your comment.

Quoth he:

Your welcome!!! See you at the buffet table, you fat fuck!!!


Buffet tables are work. I prefer for people to carry food to me.


Im sure you do, then after they prolly wipe your ass cause you cant reach it!!! Lol Whens the last times you even saw your dick? 1979???

And so forth.

So, here come the phone threats and email threats and badly designed web sites and bizarre bar complaints, I'm sure.

Blusterbros tend to repeat some common themes that you can spot in Patrick's rant above:

1. There are huge things in motion that are going to crush you. HUGE. They are legal.
2. I have attorneys and developers and staff.
3. There is a conspiracy against me.
4. I am a super-genius and amazingly talented.
5. Celebrities adore me.
6. Here are some implausible numbers about my online activities.
7. Your criticism has resulted in me getting more positive attention and business.
8. Fuck spelling.

It's nice to be part of something. Thanks, Patrick!

Ohio Attorney Dean Boland Threatens Scott Greenfield, Badly

Scott Greenfield over at Simple Justice gets threatened with litigation a lot. He gets threatened more than I do. I'm trying not to resent this. Yes, Scott's blog output is more robust, and he has decades and decades more experience in annoying people, but I like to think that I provide an atisanally annoying experience. Are you not libeled?

Anyway, this time Scott's being threatened by an Ohio attorney named Dean Boland. Boland caught some bad publicity a few years ago for . . . well, let's the United States Court of Appeal for the Sixth Circuit describe it:

To help defendants resist child-pornography charges, technology expert and lawyer Dean Boland downloaded images of children from a stock photography website and digitally imposed the
children’s faces onto the bodies of adults performing sex acts. Boland’s aim was to show that the defendants may not have known they were viewing child pornography. When the parents of the children involved found out about the images, they sued Boland under the civil-remedy provisions of two federal child-pornography statutes. The district court granted summary judgment to the parents and awarded them $300,000 in damages. We affirm.


Anyway, Scott wrote about this case quite sympathetically, suggesting that Boland's actions did not warrant civil or criminal liability. Now, more than a year after asking Scott nicely to take the post down, Boland has resorted to threats.

By way of summary, you cite to a Wired article and quote as follows: “Boland was an expert witness for the defense in a half-dozen child porn cases and made the mock-ups to punctuate his argument that child pornography laws are unconstitutionally overbroad because they could apply to faked photos.”

This quoted statement is false. The exhibits were not used for that purpose at all. This statement is false and defamatory and is causing me professional financial harm which is calculable.

This statement in the article is defamatory and false: “As a result, in 2007 he found himself the defendant in a deferred federal child-porn prosecution in Ohio….” I have never been involved in any prosecution, never been a defendant in a criminal matter and have maintained good standing as a lawyer in Ohio with a no discipline record. I did not enter into any agreement called a “deferred prosecution agreement” nor even words to that effect. This statement is false and defamatory and damaging to my professional reputation.

“Given that Boland was prosecuted (even though it resulted in a deferred prosecution)” Again, this is a false statement. I was never prosecuted for any conduct in this case nor any other. I never entered a deferred prosecution agreement with the government. This statement is defamatory and causing me real, financial harm which is calculable.

Very bad judgment appears to be Mr. Boland's habit. This is an incredibly stupid and reckless approach, certain to trigger the Streisand Effect and generate far more bad publicity. Scott's comments are all supported by the Sixth Circuit decision describing Boland's case. And that's not all. I went on PACER and pulled many filings from Boland's case. I pulled, for instance, Boland's Pretrial Diversion Agreement with federal prosecutors, which includes stipulated statements of fact consistent with Scott's (and the Sixth Circuit's) description. I pulled a federal prosecutor's leter threatening to revoke that Pretrial Diversion Agreement based on Boland's apparent denials of facts in the civil case. I pulled a transcript of his expert testimony that seems to support the characterization of it. I pulled Boland's own pro se filings from the civil case, which supported Scott's (and the Sixth Circuit's) characterizations.

Based on reading Boland's pro se filings, I suspect he has some sort of elaborate semantic theory in mind: the agreement was a "Pretrial Diversion Agreement" and not a "deferred prosecution agreement," and so forth. That's frivolous. Truth is an absolute defense to defamation, and for these purposes truth means "substantial truth." A harmful statement is true for purposes of defamation law if it gets the "gist" or "sting" of the harmful fact right. Under this doctrine it doesn't matter what you call Boland's agreement; it matters that its nature and effect were correctly described. The same is true for any linguistic argument Boland might construct about the exact nature of his expert testimony.

It's rare to see a defamation threat directed at statements that are so clearly and easily proved true based on the public record. Boland doesn't need a defamation suit. He needs a good friend to talk him out of this idiocy. This will not end well for him.

Stupid defamation threats: don't make them.

Lawyer Threatens Yelp Reviewer With Lawsuit, Is Wrong

Kyle Barella is an immigration lawyer with his own firm. Last week he gave an "exclusive" interview to Breitbart News Network on his views about birthright citizenship and the whole "anchor baby" controversy. That was, of course, his right. He said he thinks that birthright citizenship is being abused and that we should end it. He said so rather mildly, particularly given where he was being quoted.

This is modern America, so naturally someone was upset about his viewpoint and left his law firm a one-star review on Yelp complaining that his ideas are "borderline racist." It's his only review right now. The reviewer — "Amir K." — thinks that Kyle Barella shouldn't be an immigration lawyer because of his views on birthright citizenship:

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Dr. Mario J.A. Saad Tries, And Fails, To Censor American Diabetes Association

Dr. Saad is mad.

Dr. Saad is mad because of something bad — specifically, the American Diabetes Association, through its journal Diabetes, is publishing expressions of concern about some of his scholarly articles, and may formally withdraw them.

Expressions of concern — like formal withdrawal of past articles — are part of the peer review process. It's how scientific journals police themselves and call attention to questions raised about research they've published. Naturally they are a source of annoyance to the authors questioned, as I've written about in the cases of several legal threats against the blog Retraction Watch.

So when the ADA began questioning Dr. Saad's work, he and his lawyers at Deutsch Williams did not rely on the peer review process, or on advocacy or persuasion. Don't be ridiculous! This is America. So they sued.

Dr. Saad sued the ADA for defamation, claiming that they were harming his reputation by printing digital expressions of concern about his work, preparing a print run, and declining to publish him further until their concerns were assuaged. That much — the attempt to vindicate scientific propositions through litigation, rather than through . . . you know . . . science — is banal at this point. What makes Dr. Saad and his lawyers notable is the remedy they demand.

Dr. Saad demanded in his complaint, and sought through a motion, an injunction forcing the ADA to remove its expressions of concern, and prohibiting it from publishing them or withdrawing Dr. Saad's articles. This is aggressive, in the sense of patently ridiculous. Dr. Saad is demanding prior restraint of speech, something that is prohibited (at least as pre-trial relief) in almost all circumstances.

When you are asking a federal judge to do something patently unconstitutional, and you're not a federal prosecutor, you face a conundrum. Do you attempt to distinguish the decades of Supreme Court cases saying that the judge can't do what you want, explaining in creative fashion why they don't apply? Or do you just ignore the issue and hope it doesn't come up? Dr. Saad's lawyers went with the later strategy, which might be called Underpants Gnome lawyering. Their brief studiously ignores the First Amendment, the wall of prior restraint authority, and the equitable doctrine that defamation can't be enjoined.2 The ADA's brief in opposition is more or less "what the fuck, man?" with bluebooking and footnotes.

Lawyers employ Underpants Gnome lawyering because sometimes it works. It didn't this time. United States District Judge Timothy Hillman denied Dr. Saad's request for an injunction politely but firmly:

Whatever interest Dr. Saad has in preserving his professional reputation, it is not enough to overcome the heavy presumption against the proposed order’s validity. This is precisely the type of circumstance in which the law forbids courts from halting speech before it occurs. See Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625 (1931) (declaring unconstitutional a court order preventing The Saturday Press from publishing a defamatory newspaper); Krebiozen, 334 Mass. 86 (affirming denial of injunction that would have prevented the publication of statements harmful to medical researchers’ professional reputations). The appropriate remedy in cases where a “publisher is to print a libelous, defamatory, or injurious story . . . lies not in an injunction against publication but in a damages or criminal action after publication.” In re Providence Journal Co., 820 F.2d 1342, 1345 (1st Cir. 1986).

This was not a close call.

Dr. Saad may still proceed seeking damages against the ADA, and might, hypothetically, get an injunction against specific statements found to be false after a full trial. But his effort to vindicate his scientific view through force of law has failed.

I offer no opinion on whether the ADA is right, or reasonable, in questioning Dr. Saad's research for scientific reasons. I got through my science/math/bio requirements in college through a Physics for Poets class in which I got a B+ by writing a speculative essay about antimatter derivative of 1950s Heinlein essays. But I do question the reliability of Dr. Saad's research on this basis: how can you trust the science of someone who tried to get a court order prohibiting public questioning of their conclusions? If a new therapy were based on a scientific theory that was defended not with peer review and the scientific method, but with litigation, would you trust it to be used on a loved one? I wouldn't. Dr. Saad may find that his litigiousness has harmed his credibility more than anything the ADA has ever said or done.

Hat tip to the folks at Retraction Watch.

"Digital Homicide Studio" Abuses DMCA To Lash Out At Reviewer Jim Sterling, Gets Fair Use Wrong

Frivolous abuse of the Digital Millennium Copyright Act is nothing new. We've seen fake poets, manufacturers,purveyors of anatomically impossible boobs, sociopathic revenge-pornsters, and legbreakers for totalitarian governments make false claims of copyright violations in an effort to censor online criticism.

So why should we be surprised that a computer game designer would abuse a DMCA takedown request to silence a negative review?

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Popehat Signal: Help Fight the Censorious Villainy Of Roca Labs

New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

It's time to light the Popehat Signal to find pro bono assistance for citizens threatened with a bogus and censorious lawsuit.

The cartoonish villain of this story is Roca Labs, whose belligerent attempts to silence critics inspired my post last month. Roca Labs, you may recall, produces a pink slime that one is supposed to eat to suppress the appetite. Roca Labs is pathologically adverse to criticism, and therefore has hit upon an increasingly familiar tactic — they require at least some of their customers to sign contracts promising not to criticize them at all. Based on those contracts, they filed a lawsuit against Pissed, a gripe site that printed complaints by their customers. Their quasi-legal flailing became more desperate when First Amendment heavyweight Marc Randazza took up's defense.

Now Roca Labs has crossed the Rubicon from mildly entertaining legal buffoonery to outright despicable abuse of the system calculated to suppress not only the right to free speech but the right to petition the government. As TechDirt first reported, Roca Labs has now sued — in Florida — three of its customers from other states. What's notable about these three customers? One of them provided witness testimony in Roca Labs' lawsuit against Roca Labs has previously complained about many different customers exercising free speech, but now wantonly targets just these three consumers, one of whom just happened to be a witness against them.3 Roca Labs is demanding damages, attorney fees, and an injunction prohibiting these consumers from criticizing Roca Labs. As Techdirt points out, Roca Labs' attorneys rather comically assert that the defendants' criticisms are "defamation per se" because they agreed in advance contractually that they would be. That's not how it works, dipshits.

Roca Labs isn't a full Prenda yet, but by God, it's trying.

Those three defendants need help. Even when a suit is patently frivolous and vexatious, defending it — particularly in a distant state — is ruinously expensive. That's Roca Labs's purpose — not to win on the merits, but to silence critics through cynical abuse of the legal system. These three defendants can't afford to hire lawyers in Florida. If they don't get help, Roca Labs wins through manipulation of a broken system.

You can help. If you are a lawyer admitted in Florida, you can act, at least, as local counsel. If you are a lawyer in another state, you can help Florida counsel. If you're just someone with a voice on the internet, you can help get the word out about Roca Labs and its contemptible behavior, and help these people find pro bono legal assistance. (Some sort of fundraising campaign, at least for costs, is also a possibility, though the defendants should get independent legal advice about that.) You can also get the word out about the unethical and repulsive behavior of the attorneys who filed this suit, Nicole Freedlander and Paul Berger of the "Hurricane Law Group." Berger has also been involved in threatening bloggers and witnesses.

And finally, please help circulate and promote this question: why would any sensible person consume a weight-loss product from a company that sues customers who criticize its safety, value, or efficacy? Does that sound safe to you?

By the way, this is not the end of Roca Labs' bizarre behavior — stay tuned for more.

Fight evil.

Lena Dunham, Meet Barbara Streisand — Have You Met?

Lena Dunham, who apparently is famous for a HBO show I haven't watched, has a memoir out. I don't approve of 28-year-olds having memoirs unless and until they have been shot for advocating for the downtrodden or something, but Ms. Dunham is hardly the first to commit this minor sin.

This weekend Ms. Dunham became very upset because some people — mostly on conservative political websites — described her memoir as a confession to sexually abusing her little sister.

Here's how "Truth Revolt" characterized quotations from the memoir:

In the collection of nonfiction personal accounts, Dunham describes using her little sister at times essentially as a sexual outlet, bribing her to kiss her for prolonged periods and even masturbating while she is in the bed beside her. But perhaps the most disturbing is an account she proudly gives of an episode that occurred when she was seven and her sister was one.

You can read the subsequent quoted passage for yourself.

Now Ms. Dunham has, according to Truth Revolt, threatened them with a lawsuit and demanded that their post be taken down. Ben Shapiro, author of the pieces, has not yet responded to our request that he post the threat letter. So we only have his word that Ms. Dunham made this demand and threat. However, I submit that Mr. Shapiro has a certain amount of credibility on the subject of overheated reactions to things.

If Ms. Dunham is alleging that the original Truth Revolt article about her is defamatory, she is wrong — unless it has deliberately and extensively misquoted her book. Truth Revolt has admitted that the article originally and incorrectly said that she was 17, not 7, when one of the incidents described took place. But absent proof that Truth Revolt made that misstatement intentionally, that's incompetence, not the actual malice required to prove up defamation of a public figure like Ms. Dunham.

Truth Revolt's characterization of Ms. Dunham's memoir is not defamation. It's classic opinion based on specific disclosed facts. You might think that Truth Revolt's interpretation of Dunham's stories of her conduct with her sister is irrational, or unfair, or politically biased, or cruel. That doesn't make it defamatory. If I linked to one of Ben Shapiro's articles and said "this article proves that Ben Shapiro is a secret lizard person sent by Obama to discredit conservatives," that wouldn't be defamation either. It might be crazy, but it's my statement of opinion based on Shapiro's own words. If Truth Revolt had said "people have told me that Lena Dunham molested her sister" or "I have reviewed documents that suggest to me that Lena Dunham molested her sister," that would be different — that would be a statement of fact, or a statement of opinion based on undisclosed facts.

So: Ms. Dunham will fail, sooner or later, if she sues over this article. Her threat, and her reaction to the coverage, are likely to trigger the Streisand Effect, driving orders of magnitude more eyes to the characterizations of her memoir. She's media-savvy enough that I can't help but wonder whether that's her intention in the first place. It will sell books.

I haven't read the memoir and have no plans to do so. I find some of Dunham's descriptions of her conduct (as quoted) creepy and unsettling. But I also think that classifying a seven-year-old's behavior as sexual abuse is, at least, problematical. (Being disturbed by the tone Dunham uses to relate her seven-year-old behavior is a separate issue.) I seriously doubt that the discussion of abuse of or by children will be advanced by a dispute that is deliberately politically charged.

Did Sundance Vacations Forge A Court Order To Suppress Online Criticism?

Sundance Vacations would like to bill itself as a purveyor of wholesale and discount vacations. But on the internet, it is widely described as a sleazy hard-sell telemarketer selling sales presentations.

Companies are increasingly aggressive — perhaps belligerent is the better word — in defending their online reputation. There's evidence that Sundance Vacations has taken this trend to a new extreme through forging court documents in an effort to suppress criticism.

Matt Haughey has the story. When Sundance demanded that critical posts be taken down from Metafilter, and provided an apparent court order from Mississippi, Matt did something very rare and special — he exercised critical thinking. Matt noted discrepancies in the purported court order, crowdsourced a request to determine whether the case actually existed, and eventually did the legwork himself by calling the clerk's office. The result:

Today (Tuesday) I called a clerk in the Hinds County Chancery Court office. They asked me to fax them a copy of the court order so they could verify the document. I did as requested and a few hours later got a call back from the office saying it was not a real document from their court. The case numbers on the first page are from an unrelated case that took place last year. The clerk said they found a case from August 21, 2014 that used similar language but had different plaintiffs and defendants, but the same lawyers on page 3. In their opinion, it seemed someone grabbed a PDF from a different case and copy/pasted new details to it before sending it on to me.

Naughty, naughty, naughty. And so very reckless.

I've written to Sundance Vacations, a rep there who wrote to Matt before, the account that sent the court order this time, and Sundance's attorney of record on the order, asking them all for comment. I'm moving on to seek comment from the opposing lawyers in that apparently cut-and-pasted case. I'll report more if I learn it. Matt explains that the fake order came from a gmail account; Sundance may attempt to distance itself and deny responsibility for that account.

For now, Sundance Vacations is about to learn about the Streisand Effect. BoingBoing has picked up the story, and more will follow. And could there be consequences for using forged court documents in interstate commerce to suppress commercial criticism? Gosh, what an interesting question . . . .

Updated: On its Facebook page, Sundance Vacations confirms the prior email to Matt but denies it sent the recent one with the apparently forged documents, as predicted above.