Popehat Signal: Dutch Blogger Sued In Florida For Criticism of Junk Science

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

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

It's time for the Popehat Signal, in which I request help for people whose speech is threatened by bogus and censorious lawsuits.

Pepijn van Erp blogs about science and pseudoscience from the Netherlands. He praises good science and skewers and critiques the bad. Wait a minute. Is that the Jaws theme playing? Yes. Yes it is — because blogging about junk science is a great way to get threatened or sued. In my experience, purveyors of "non-mainstream" science are unusually litigious and sensitive to criticism. You've seen it here at Popehat with "atavistic" cancer theorists and vaccine truthers and naturopaths and fans of questionable cancer remedies and AIDS deniers. I blame the crystals.

Pepijn wrote about a guy named Ruggero Santilli. I see that Wikipedia, which has a four thousand word article about Bigfoot, notes that some scientists view Santilli as a "fringe scientist."

Image of Professor Santilli courtesy of http://www.i-b-r.org/Prof-Santilli-faces.html, used for criticism and reporting.

Image of Professor Santilli courtesy of http://www.i-b-r.org/Prof-Santilli-faces.html, used for criticism and reporting.

Why is he viewed that way? Well, you can read Pepijn's post about Santilli's claim that he discovered a new type of gas from specially distilled water. Or you could read Pepijn's post about Santilli's claim that antimatter produces "antimatter-light" that can be focused using concave (NOT convex. NEVER convex.) lenses.1 Santilli, unhappy, threatened to sue over the posts, claiming that Peijin van Erp has not only defamed Santilli, HE'S DEFAMED ANTIMATTER:

antimatter

[Why have scientists not accepted Santilli's theory of magic gas and anti-light? According to one of his supporters it's because of Jews.]

Pepijin's letter in response is everything you could hope for, pointing out that Santilli was threatening the wrong people by targeting his associates, that Santilli's threats of Dutch criminal charges were bumptious, that he had explained the factual basis for his opinions (which were framed as opinions), and that one of the articles was three years old and past the statute of limitations according to a helpful article on the threatening lawyer's own web site.

Santilli was not satisfied and has now filed suit in Florida, as one does. The lawsuit — which you can find here — is odd. Santilli has sued Pepijn van Erp, naturally. He's also frivolously sued van Erp's blog host, Hosting2Go, even though Section 230 of the Communications Decency Act plainly makes the host immune from defamation suits over the content supplied by a blogger. He's also sued Frank Israel, head of the Dutch Skeptics Foundation, apparently because van Erp is a member of that foundation. (Flailing at skeptic foundations associated with skeptic bloggers is classic censorious-junk-scientist behavior).

The arrogant, entitled, malicious, censorious, and frivolous-to-the-point-of-sanctionable nature of the lawsuit is best captured by this paragraph:

It is recognized in the scientific community that when one disagrees with the scientific findings of another, the proper forum for challenging the science is through respectful debate, research and publication of peer reviewed articles based on inconsistent scientific findings and is not customarily attacked through blogs without peer review.

Yeah, peons. You're not allowed to question antimatter-light on your blogs.

Anyway, through his attorney Joseph E. Parish, Santilli is suing over the terms "fringe scientist", "mad professor", and "cunning scam artist". In my view, van Erp's posts very clearly establish these as opinions based on stated facts. Moreover, the inclusion of the host is simply vexatious, and the inclusion of Israel is inexplicable. This is thuggish harassment of criticism of junk science.

Van Erp (and possibly Israel) could use help. Even though the case is rather patently meritless, it could cost a ruinous amount of money to defend. I do not understand that skepticism makes people rich, and very few people can afford modern litigation, even when they are completely in the right. I understand that they can contribute to their defense but that they are hoping that an attorney admitted in Florida will accept the case at a price point bearing in mind the First Amendment issues involved.

As always, your freedom to speak — and mine — depend upon lawyers standing up against vexatious and unethical censorship-by-litigation like this. If you are a Florida attorney and would like to help, please contact me at ken at popehat etc.

Let me end with this: what kind of "scientist" responds to criticism of their scientific theories with litigation rather than proof?

Popehat Signal: Help Defend A Seuss-Trek Parody Under Fair Use

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

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

It's time to light the Popehat Signal to seek pro bono legal help to defend the weak against the strong.

The strong party in this case is Dr. Seuss Enterprises, L.P., which holds the intellectual property of the late Theodor Seuss Geisel, better known as Dr. Seuss. Seuss Enterprises is represented by megafirm DLA Piper, practiced sender of threatening letters.

The weak party is a team that put together a Kickstarter for a Seuss-Trek parody. Writer, editor and illustrator Glenn Hauman put the team together through his company ComicMixLLC. He brought together science fiction writer David Gerrold, who is personally responsible for both tribbles AND Sleestacks, and Ty Templeton, an experienced comic book artist. The concept — a a Star Trek parody called "Oh, The Places You'll Boldly Go" — looked brilliant and delightful:

Gorn

But DLA Piper sent a threat letter on behalf of Seuss Enterprises and Kickstarter took the page down and froze the money they made, and Seuss Enterprises continues to threaten a lawsuit.

The key issue here is Fair Use. Fair Use is a defense to copyright infringement. It applies when you quote a column to criticize it, or post a picture to report on it, or invoke the language and characters of a work to satirize it. It has good and bad aspects. The good: its protection for criticism, comment, satire, and parody is quite broad. The bad: its key elements are subjective and lack bright lines. That means it is rarely possible to use the Fair Use defense to get out of litigation early; usually you've got to litigate all the way to summary judgment or even trial. That's financially ruinous, exhausting, stressful, and life-consuming.

I believe this project is protected by Fair Use. Under the first relevant factor, it's "transformative," in that it adds a new message or meaning to Dr. Seuss's work. It doesn't merely offer a Star Trek episode in Dr. Seuss style; rather, it uses the style to comment on and contrast the Stark Trek and Seuss sensibilities and styles. With respect to the "substantiality" factor, the parody only uses Seuss's recognizable and oft-parodied style; it does not copy actual art or story lines. With respect to the last factor, the work doesn't harm the market for Seuss's work. In other words, people won't buy less Seuss because they bought this parody.

But I don't decree the outcomes of cases, yet. Seuss Enterprises will continue to use a large team of very capable and well-supported lawyers to threaten the authors here, shut down their Kickstarter, and very likely sue them unless they abandon their work. The authors don't have access to the frozen Kickstarter funds and are not in a position to spend what it takes to go up against DLA Piper. Absent intervention, this case will be determined not on its merits, but by raw power — one side has money to bury the other side.

That's not right. This case — the case of a delightful and inventive Trek/Seuss parody that fans will enjoy — ought to be determined through a fair and neutral application of Fair Use principles, not by rout and default.

We can't fix every unfair case. But you can help fix this one. Are you an attorney who practices copyright law? Are you willing to step up and offer pro bono help in a fun, geeky Fair Use case to protect parody from money? Then please consider reaching out, the more of you the better. These guys need help. If you like the Kickstarter model, if you like creative people putting together amazing teams like this and providing entertainment through satire, people need to step up to preserve it. If you're interested, drop me a line at ken at popehat etc.

Thanks and Congrats To Dhillon Law Group For Important Pro-Bono Anti-SLAPP Win

I know I say it all the time, but here it is again: the system is broken, and only the generous community service of lawyers prevents people from getting ground up in it.

A few months ago I got a private request from a young woman sued for defamation. This was the core of the case: she made a sexual harassment complaint against another student after a brief relationship, and her school investigated it as required by Title IX and found in her favor. Days later, the fellow student sued her — not her university, but her — for defamation based on her participation in the school's investigation.

Most grad students can't afford modern litigation. I put out an immediate mini-Popehat Signal seeking pro bono help for her. Harmeet K. Dhillon and Krista L. Baughman of the Dhillon Law Group swiftly answered the call. The defendant stuck out her thumb hoping for a ride on the back of a turnip truck and wound up in a Porsche. Harmeet and Krista filed an anti-SLAPP motion, which they recently won, as they describe here.

In addition to being very significant for the defendant, it's a win that's very important for anti-SLAPP litigants in cases involving college administrative proceedings. California has an absolute privilege for statements made in the course of "official proceedings" — if you sue someone for slandering you during their testimony at a trial, for instance, the defendant can easily win an anti-SLAPP motion based on that privilege. This prevents a vast amount of harassing and retaliatory litigation. But until Harmeet and Krista successfully litigated this, no California court had expressly extended the "official proceeding" privilege to Title IX proceedings mandated by federal law. Now, thanks to their work, students can report conduct to school authorities without worrying that they will be drawn into frivolous but ruinous defamation litigation.

Many people are concerned that schools are conducting Title IX proceedings without adequate due process protections for the accused. This is a very legitimate complaint. But that wasn't the issue here. Here the plaintiff wasn't suing the school (with its money and lawyers) for disciplining him without due process. Rather, he was suing the individual complainant for defamation merely for reporting his behavior, forcing her to defend herself without the school in court. This was the absolutely right result, and consistent with other laws making reports of misconduct privileged from defamation suit. Absent this rule, whenever one college student accused another of some misconduct, the accused could retaliate with an expensive, stressful, all-encompassing lawsuit.

The case took a lot of work and some creative lawyering on a novel issue. Harmeet K. Dhillon and Krista L. Baughman did it for free. There's no guarantee they'll collect any fees even though they won the anti-SLAPP. But they did it because it was the right thing to do and because people like this defendant depend on people like them for justice, and they did an exceptionally good job at it. Please join me in applauding and thanking them.

Popehat Signal Update: Awesome Team Gets Great Appellate Result in Frivolous Case By AIDS Denier

Way back in 2013 I lit the Popehat Signal to get pro bono help for J. Todd Deshong, a blogger and HIV-positive AIDS activist. Woo merchant and AIDS denialist Clark Barker filed a frivolous lawsuit against Deshong, claiming that Deshong's critical web sites defamed him and infringed his trademark. A legal Dream Team assembled swiftly and formidably, and in 2014 that Dream Team got the frivolous complaint dismissed.

So far so good. But you can't fight vexatious litigants just by winning motions; you have to inflict upon them the costs of their actions. The Dream Team sought attorney fees under the Lanham Act, which allows a prevailing party to get fees in an "exceptional" case. The federal district court denied the request, saying that there wasn't enough evidence that the plaintiff acted in bad faith.

But that's not the right question, the Dream Team asserted. Today, the United States Court of Appeals for the Fifth Circuit agreed. They reversed the refusal to award fees and sent it back for the trial court to decide under the right standard:

We merge Octane Fitness’s definition of “exceptional” into our interpretation of § 1117(a) and construe its meaning as follows: an exceptional case is one where (1) in considering both governing law and the facts of the case, the case stands out from others with respect to the substantive strength of a party’s litigating position; or (2) the unsuccessful party has litigated the case in an “unreasonable manner.” See Octane Fitness, 134 S. Ct. at 1756. The district court must address this issue “in the case-by-case exercise of their discretion, considering the totality of the circumstances.” See id.

This standard is much friendlier to the targets of frivolous lawsuits. It doesn't require an inquiry into subjective bad faith (which judges are often loath to find) and allows consideration of both the objectively meritless nature of the claims and the methods used to litigate. That will make it easier for other Dream Teams to get attorney fees when censorious plaintiffs abuse the legal system to suppress speech.

Congrats to Paul Alan Levy and Gill Sperlein for this appellate win.

Popehat Signal: Please Help Mandy Nagy And Her Family

It's time for the Popehat Signal. I failed last time I lit it in this case, but I'm lighting it again, hoping that the community of civic-minded, speech-cherishing, evil-fighting lawyers will respond.

I need your help defending a stroke victim and her family against a domestic terrorist who has replaced his bombs with ongoing vexatious litigation.

[Read more…]

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 Consumer.com, a gripe site that printed complaints by their customers. Their quasi-legal flailing became more desperate when First Amendment heavyweight Marc Randazza took up PissedConsumer.com'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 PissedConsumer.com. 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.2 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.

Colorado ISP Peak Internet Sues Customer For Bad Online Reviews [Updated With Popehat Signal, Resolution]]

[Update: see resolution at end of post]

Peak Internet of Colorado offers ISP services to the Pikes Peak region. Russell Petrick tried their services and was disappointed. He says that their speed was consistently below the benchmark they advertised. When Petrick complained, he says that Peak Internet told him he was getting above their stated minimum speed, so he should be happy with the 12 Mbps he was getting, even if it didn't reach the advertised 20 Mbps top speed.

Petrick complained online on Yelp and elsewhere. Peak Internet, an American company that values American ideals like freedom of speech, recognized Petrick's right to complain and responded forthrightly to the complaint. No, wait, Peak Internet strongly disagreed with Petrick's complaints so it responded online with specific facts and circumstances showing how particular elements of Petrick's complaints were untrue.

Wait, no. I forgot. This is America. So Peak Internet sued. They hired attorney Ryan J. Klein of Sherman & Howard and filed a complaint against Petrick in Teller County District Court for defamation and defamation per se. The complaint is here.

Peak Internet's complaint is bare-bones and notably vague and ambiguous. This is how it explains the basis for accusing Petrick of defamation:

The defamatory statements made by Petrick about Peak Internet include, but are not limited to, false statements about the speed of services provided by Peak Internet and responses to complaints about alleged issues with the speed of services provided by Peak Internet.

Notably, Peak Internet does not specify exactly what part of what Petrick said that was false, or exactly how it was false. Remember what I always say: vagueness in defamation claims is a hallmark of meritless thuggery. Here, Peak Internet has used vagueness as a strategy to (1) obscure whether it is suing based in part of protected statements of opinion, (2) hide exactly which statements it contends to be false, avoiding early proof that the challenged statements are true, and (3) increase the costs and pressures of litigation on Petrick to shut him up and deter others from criticizing Peak Internet. You can't tell from the complaint, for instance, whether Peak Internet's argument is "our speeds were never that slow that often, he's lying" (which might be a valid defamation claim) or "his arguments are unfair because these speeds are above the guaranteed minimum speed and we don't promise the top speed all the time" (which would be an invalid attack on a protected opinion).

Peak Internet's ploy may not play out the way they hoped. Already a local news station ran with the story, allowing Petrick to highlight what appears to be well-documented evidence supporting his complaints about the speed.

I wonder: did attorney Ryan J. Klein explain the Streisand Effect to his client Peak Internet before filing the lawsuit?

It's not clear to me whether Petrick has counsel. If he wishes, I would be pleased to light the Popehat Signal to find pro bono counsel. Meanwhile, I think the story of an ISP that sues its customers over criticism is one that needs a little more attention. Do you agree? Have at it.

Thanks to tipster Carl.

Updated to add: commenters here and on Twitter point out that Peak Internet has gotten four abrupt good reviews on July 30 (the day after the local news story), all from first-time reviewers, all praising Peak Internet. No doubt a coincidence.

Second Update:

Mr. Petrick has sought my help. I am lighting the Popehat Signal.

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

Mr. Petrick is disabled and does not have funds to hire an attorney to defend his free speech rights. Is there a lawyer out there who can help him in Teller County, Colorado?

We have the right to free speech — in theory. In practice, companies like Peak Internet, and lawyers like Mr. Klein, can trammel that right because the system lets them. It can be ruinously expensive to defend even the most transparently bogus and censorious case. To fight this trend of companies suing to remove bad reviews, we need people to step up. Might it be you? If not, will you help spread the word?

Good Update: I am reliably informed that Peak Internet and Mr. Petrick have resolved the case satisfactorily and Peak will be dismissing its case with prejudice — meaning permanently. Congrats to Mr. Petrick, a nod to Peak Internet for making the right decision after the wrong one, and thanks to several Colorado lawyers who offered to help.

Popehat Signal Update: Dream Team Victory In Texas

I bring good news: top-notch work by generous and dedicated lawyers has produced a free speech victory in Texas.

Last year I lit the Popehat Signal seeking help for J. Todd DeShong, a blogger and AIDS activist. DeShong, a longtime critic of the nutty and conspiratorial junk science occasionally directed at AIDS issues, ran afoul of Clark Baker, an ex-cop and full-blown AIDS denialist who offers "expert" "witness" services. You may recall my description of Baker's phone call to DeShong's mother:

I interviewed Mr. DeShong's mother, a sweet lady with a spine of Texas steel. She told me about how Mr. Baker called her out of the blue and ranted at her. Mr. Baker angrily denounced her son, and told her that, as a police officer, he knew about dangerous people, and that Ms. DeShong should fear that her son would kill her in her sleep. He also threatened that he was arranging for doctors Mr. DeShong had criticized to sue him for defamation. Ms. Deshong pointed out that such a suit would bring no joy; Todd DeShong is not a rich man. "But you have money, right? You have a house, right?" responded Mr. Baker, implying that he might put her assets at risk. "He thought he could intimidate me. He didn't know who he was dealing with," said Ms. DeShong, who sounds like a good person to have at your back.

Baker sued DeShong in federal court in Texas over DeShong's criticism of Baker's AIDS-denialist rhetoric and his "expert" "witness" service the HIV Innocence Group. Baker claimed that DeShong's criticism was not only defamation, but violation of the HIV Innocence Group's trademark rights in its name. Baker's motive may have been mixed: he may have wanted to silence DeShong, but he may also have wanted to use the federal suit to pursue his conspiracy theories about AIDS researchers. I cannot say what his lawyer was thinking, if he was.

Such federal litigation is ruinously expensive to defend; DeShong couldn't afford a defense and Baker might have succeeded in silencing critics through abuse of the legal system. Fortunately, lawyers who care about free speech rode into the breach: D. Gill Sperlein, Paul Alan Levy of Public Citizen, Gary P. Krupkin, and Neal A. Hoffman filed motions to dismiss (attacking the thoroughly specious trademark claims) and a strong motion under Texas' relatively new anti-SLAPP statute.

Last week the dream team won. United States District Judge Sam R. Cummings granted DeShong's motion to dismiss the trademark claims, and then refused to hear the state law claims and dismissed them. The court's ruling held the line on a key free speech concept: using a company's name to criticize it does not violate the company's trademark in the name. Baker had claimed that sites like "HIV Innocence Group Truth" violated trademark rights and were part of an effort to destroy him by discrediting him. But Judge Cummings pointed out "[n]o reasonable person would take one look at DeShong's website and believe that Baker authorized its content." Moreover, the court explained, trademark law doesn't protect a company from criticism. The Lanham Act protects a competitor from profiting from the misuse of another company's trademark; it does not protect a company from vigorous and even ruinous criticism employing its name. Judge Cummings also rejected Baker's argument that DeShong violated trademark rights by using a URL likely to dominate search results for "HIV Innocence Group." That theory, too, would have allowed the Bakers of the world to abuse the Lanham Act to prevent criticism.

I suspect Paul Alan Levy, who has done a lot of important work protecting "gripe sites" and critics from bogus trademark claims, had a strong hand in winning this issue.

Having dismissed the federal trademark claim, Judge Cummings declined to exercise supplemental jurisdiction over the state claims like defamation, finding that state issues (like application of Texas' anti-SLAPP statute) would predominate over federal issues. Therefore he didn't reach the anti-SLAPP motion. That's an increasingly common approach by federal judges in such cases; it's what the judge did in the censorious Naffe case in which I was co-counsel.

Baker has appealed, and could conceivably re-file his censorious screed in Texas state court. If he does, the dream team's work on the anti-SLAPP motion is already done, and I suspect Baker will find no joy before a Texas state judge. I'd lay very good odds that Baker will lose his appeal. Meanwhile, I hope that DeShong's legal team seeks and recovers legal fees from Baker based on winning the Lanham Act claim. The suit was contemptible and represents exactly the sort of case in which federal courts should use their statutory power to award attorney fees to deter such abuse of the system.

Please join me in expressing admiration and thanks to Gil, Paul, Neal, and Gary. Their generosity with their time and talents didn't just help DeShong's free speech: it helped yours. Contributions like theirs are essential to defending free speech principles in a broken system that allows unscrupulous clients and lawyers to silence dissent by inflicting ruinous defense costs. They are heroes.

Anti-SLAPP Victory In Oregon: Anti-Telemarketing Blog Wins Big With Pro Bono Help

Here's a hard fact about free speech: vindicating it in American courts takes either money (and lots of it), or lawyers willing to provide pro bono help. Right is right, and law is law, but court is court — and winning in court generally requires competent representation, which is ruinously expensive for normal people. It's not fair, it's not right, but it's true.

Therefore the vitality of the First Amendment depends not just on the law, but on the service of lawyers like Troy Sexton of Motschenbacher & Blattner LLP in Portland, Oregon.

Last August I put up the Popehat Signal seeking pro bono help for an anti-telemarketing blogger who writes at the Telecom Compliance News Press. The blogger was sued by an attorney named F. Antone Accuardi, who claimed that the blog falsely associated him with companies involved with robocalling and other telemarketing violations.

Troy Sexton stepped up. He filed a motion under Oregon's anti-SLAPP statute in response to Accuardi's complaint, and this March, he prevailed. Accuardi's complaint is here, Sexton's anti-SLAPP motion is here, and the Magistrate Judge's lengthy and detailed order granting the anti-SLAPP motion is here. Sexton's work was absolutely top-notch. The main basis of the judge's order is that the blog's comments of Accuardi were statements of opinion based on disclosed and linked facts about the companies and Accuardi's connections to them, and therefore protected by the First Amendment. It's a very thorough opinion and worth a read if you're interested in First Amendment and anti-SLAPP issues.

This is a tremendous victory for the blog, and for Troy Sexton and his firm. Sexton has a motion for fees pending; though he stepped in pro bono, I hope that he winds up collecting at his full rate from Accuardi. I am more free, and so are you, because people like Troy Sexton are willing to step up and contribute their time and skill. Please join me in congratulating him.