Charles Carreon Claims A First Amendment Right To Make Vexatious Legal Threats Without Consequence

from the that's-an-interesting-one dept

If you haven’t had your dose of nutty legal claims of late, Adam Steinbaugh alerts us to the latest in the long and ongoing saga of our buddy Charles Carreon. When we last checked in on Carreon, he had more or less admitted that his legal threats against a satirical blogger making fun of him were baseless, and had voluntarily agreed to “settle” the case. In that effort, Carreon ignored the issue of legal fees, so the lawyers for the blogger — Paul Levy and Cathy Gellis (disclosure: I know both of them and consider them friends, and Levy has acted as our legal representative on multiple occasions, so take any analysis with however many grains of salt you’d like) — sought legal fees. Carreon went on a bizarre rant against Levy in his filing for an extension, trying to build up some conspiracy theory involving Levy somehow trolling the internet for people like himself to go after.

Of course, that ignores that Levy was going after Carreon because of Carreon’s vexatious legal threats against the blogger — to the point that Carreon directly stated that he would wait until interest in the case had gone cold before suing and causing trouble for the blogger. And, even after all of this began, after Register.com stupidly gave up the name of the blogger (on no legal basis), Carreon (while avoiding being served himself) contacted the blogger’s employer, Walgreens, and threatened to drag it into the lawsuit as well. Frankly, we could use a few more good lawyers trolling the web to seek to stop people like Carreon from making baseless legal threats.

Carreon has now filed his response to the attempt to get legal fees out of him, and in true Carreon fashion, it’s quite a filing. First of all, it highlights that in responding to a discussion over legal fees, Carreon hit back at both Paul Levy and Ken “Popehat” White with significant discovery efforts. White told Carreon to pound sand (more or less). Levy, it appears, delivered the requested documents. Of course, the documents don’t show much of anything that impact the discussion at hand, but Carreon uses them to continue his attack on the satirical blogger. Among the “findings”

  • The blogger (Carreon uses the ridiculous term “Gripesite Operator”) is “not a journalist.” So what? What does that have to do with anything, let alone legal fees?
  • The blogger is “not a web developer.” Same question as above. I can’t even see how that’s relevant to anything
  • The blogger “had not received permission to use” Carreon’s “name or photograph.” Uh, again, so what? What does that have to do with legal fees, especially given that Carreon has already conceded the basic case. He seems to be introducing a (ridiculous) copyright claim here, one that would backfire on him if he could actually take it anywhere.
  • The blogger created the blog to “show support for the Oatmeal.” Again, so what? If you don’t recall, this whole mess began with Carreon’s baseless legal threat towards Matthew Inman and The Oatmeal webcomic over Inman calling out another site for posting his comics without credit. Why would it possibly matter that the blog was created to show support over that threat (and subsequent lawsuit on behalf of Carreon himself, and not the site Carreon was originally representing).
  • The blog linked to TheOatmeal.com, which sells stuff. Um. Again. So? The site was created to support The Oatmeal in response to the bogus legal threat Carreon filed against Inman. Why wouldn’t it link to the site? And, really, if he’s trying to argue some sort of “commercial” claim here, Carreon’s seriously reaching.
  • The blog linked to Inman’s famous IndieGoGo Bear Love campaign which was started initially to mock Carreon’s bogus legal threat. Again, what does this have to do with legal fees?
  • The blogger has made no money from this lawsuit. Again. Same question. The lawsuit itself was filed in response to a threat from Carreon, and was not filed for monetary gain, but to have a court declare that the blog was legal to avoid the clear threat that Carreon had made against the site.
  • The blogger doesn’t hold the trademark for Charles Carreon. Same question.
  • In the agreement Levy signed with the blogger, it noted that if legal fees were due, Levy’s organization, the public interest group Public Citizen, would get those legal fees. I would imagine that’s fairly standard boilerplate language.
  • The blogger flew to DC from California to be deposed for this fight over legal fees, and Public Citizen paid for his flight. Again, so what?

Following all of this, Carreon actually inserts a reasonably logical argument for why legal fees may not be appropriate in this particular case. And it’s true that the awarding of legal fees is somewhat rare in these kinds of cases, but it’s certainly not unheard of. The key issue, for Carreon, is that he has to prove that this case is an “ordinary” case, because it’s only in extraordinary cases that attorney’s fees are likely to be awarded. As such, he ends up effectively defending the blogger’s actions, grudgingly conceding that the First Amendment protected the satirical posts mocking Carreon.

But, because this is Carreon, and he just can’t resist, it immediately veers off into wacky territory. He argues that granting legal fees in this case would allow any gripesite to go after those they’re griping over for legal fees, violating the First Amendment rights of those being mocked:

If motions for attorney’s fees like the pending one were authorized, then gripesite operators posting scandalous statements like “Thank God For Dead Soldiers” and “Thank God for IEDs” on websites like “AmericasLegion.com” and “ForeignWarVets.com,” would have standing to move for attorney’s fees in declaratory relief actions against the American Legion or the Veterans of Foreign Wars. In search of fee awards, plaintiff’s counsel and his public interest colleagues would be incentivized to sue those organizations on the slightest pretext. In this way, a “First Amendment Shield” would be improperly converted into a “Lanham Act Sword,” placing trademark holders in a worse position than their antagonists, thanks to the very law intended to provide them with protection. Adding to the injury, the threat of fee recoveries for gripe-site operators would chill the First Amendment rights of markholders who respond to scandalous attacks on their marks with litigation threats, since litigation threats, that are as much entitled to First Amendment protection as derisive epithets, would provoke unique, negative pecuniary consequences.

Emphasis is in the original. Yeah. You read that right. In the first half, Carreon is ignoring that the effort for attorneys fees would only come about after a vexatious threat, such as, for example, Carreon’s emailed list of threats, which included claims that he would wait until pro bono public interest lawyers might no longer be actively interested in the case to sue, and that he might sue in inconvenient locations if the blogger didn’t just give up. It is those actions that are why Carreon is facing legal fees. Not just because there was a gripesite. So, no, his argument in the first half makes no sense.

The argument in the second half just goes into crazy town. He is, effectively, arguing that lawyers have a First Amendment right to make vexatious legal threats with no consequences.

But, because this is Carreon (who has been given the motto “just keep digging” by parts of the internet), he digs in even further, arguing that vexatious legal threats aren’t just protected by the First Amendment, but that they’re also protected by “litigation privilege.” In fact, he even argues (ridiculously) that the lawsuit against him could have been dismissed via an anti-SLAPP effort.

California law is clear on this point…. The Lawyer’s email to Levy was eminently defensible in this litigation as speech protected by the litigation privilege, and no liability could have arisen from it. Indeed, the entire action might19 have been subject to dismissal by way of an Anti-SLAPP motion.

That is an… interesting reading of the law. As Steinbaugh summarizes:

I interpret Carreon’s arguments to be that (1) the site is protected by the First Amendment, but the case is not exceptional because the speech isn’t all that valuable; (2) sending legal threats is protected speech which is worth protecting; and (3) even if it were not protected speech, threatening letters are part of litigation and therefore are protected by the litigation privilege. Taken to their logical conclusion, Carreon essentially asserts that he has a First Amendment right to threaten and bring vexatious litigation.

We await the results of this case.

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Comments on “Charles Carreon Claims A First Amendment Right To Make Vexatious Legal Threats Without Consequence”

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35 Comments
Beech says:

I saw Mr. Carreon’s name on this article and KNEW it would be a feel-good romp through crazy town. That got me wondering why I think “Lawyers being dumb” stories (Carreon, Prenda, Righthaven) are feel-good, but “Legislators being dumb” stories (Gohmert, Collins) are so damn depressing.

I have decided that the dumb lawyers stories are funny because 1) they aren’t in charge of making laws that govern our nation and 2) there is the impending feeling that a judge is just going to bitch-slap them at any minute. Whereas the dumb legislators stories make me feel bad because 1) they are in charge of making laws and govering the nation and 2) there will most likely be no comeuppance for their stupidity, and, in fact, they may just end up getting a higher-paying lobbyist job from their corporate master than they would have in the first place.

Beech says:

Re: Re: Re:

Yes, but I don’t foresee Judge Otis Wright going anywhere near Prenda’s way in his ruling.

Righthaven is gone and dismantled.

Carreon sounds like he wrote his last filing while high, so I don’t think we’re on the brink of him getting a ruling that baseless legal threats qualify as protected AND privileged speech.

So I think we’re good on that front

sehlat (profile) says:

This may not play out against him.

Remember, every profession defends its own members from outsiders. Doctors are reluctant to testify against other doctors. Mike Nifong committed felony subornation of perjury in his effort to make the Duke rape cases stick and he still hasn’t spent a day in jail. It took years to get him disbarred. And the following quote was written in 1960 by the late Mark Clifton.

Any judge, anybody around the courts, anybody connected with the press, and maybe even some of the public knew that any police officer will swear to any lie to back up another police officer because he might need the favor returned tomorrow.

I’ll believe sanctions in both this and Prenda when they actually happen.

tomxp411 (profile) says:

Confused

I’m lost with all the pronouns and not-names being thrown around…. not to mention the lack of background info in this article.

Let me see if I got this right:
Someone said something negative about Carreon.
Carreon took Someone to court, causing Someone to incur legal costs.
Carreon didn’t win (he filed for dismissal.)
And Someone is out the legal fees he spent (or someone spent on his behalf.)

I don’t see how this is fair to anyone. I’ve been threatened with defamation suits for speaking out against bullying behavior, and I would hate to think that the bully could drag me to court, let the case drag on for months or years, and then suddenly “Oops, I changed my mind” at the last second.

I don’t know about the legal thing, but the RIGHT thing here is “loser pays”, even when the plaintiff is the one who filed for a dismissal.

That One Guy (profile) says:

Re: Confused

Not quite, what actually happened was a whole lot more complicated, and more along these lines:

1. Carreon threatens to sue the owner of The Oatmeal(ostentatiously on behalf of another website, though it quickly turns into a personal vendetta for Carreon against those ‘besmirching his good name’), demands $20K to not do so.

2. Innman(Owner of The Oatmeal), tells Carreon to bugger off, then sets up a fundraiser for amount demanded, money to go to charity, with the promise if the amount is reached he’ll draw a bear getting fresh with Carreon’s mother.

2.5 During this time, pretty much the entire internet has a good laugh at Carreon’s foolish antics, and one of them sets up a parody blog by ‘Carreon’ to do so.

3. Carreon sends letter to blogger, threatening him with all sorts of unpleasantness, including the threat to wait for the brouhaha to wind down and for people to forget Carreon’s actions before suing him, waiting long enough to sue that the legal defense groups that offered the blogger assistance(the EFF in this case I believe) won’t be able to help him, and threatening to bring the case against him in various locations, making defense a tricky business at best.

4. Blogger’s lawyer files for declaratory judgement on the case against the blogger, to prevent Carreon from carrying out his ‘I’ll sue you in the future when you are unable to defend yourself’ threat.

5. Carreon does everything in his power to avoid being served and therefor forced to show up in court(at least on that case, more on that later), basically putting the case involving the blogger in limbo until it happens, and racking up expenses on the blogger’s side.

6. Finally, in a move too hilarious to make up, a lawyer corners Carreon when he is leaving another case he was involved in(as lawyer, not defendant this time) and manages to serve him the papers.

7. Carreon suddenly decides to ‘drop’ the threat against the blogger, and attempt to make it look like all some sort of ‘mistake’ or ‘misunderstanding’. Needless to say no one actually buys it for a second.

8. Bloggers lawyer(s) file for an award of legal fees, on account of the nature of the case(Carreon threatening to sue someone to shut him up and punish him for mocking Carreon basically).

8.5 While legal fees were originally in the order of a couple hundred, due to Carreon’s insane actions in his attempt to avoid being served, which caused things to drag out for a good while, the fee asked for is somewhere in the range of $4K.

9. Carreon again flips out, tries to argue that it’s not his fault the legal fees ended up so high(despite the fact that it was his desperation to avoid being served that caused such high costs), and argue that he should only pay the ‘original’ fee of a couple hundred.

While fairly general, that should give you a decent idea of the background behind the whole ‘Carreon Saga’, though I really suggest searching through the TD articles for the rest, it makes for an insane, and insanely funny read.

Mike Masnick (profile) says:

Re: Re: Confused

Thanks for filling in the blanks, though a couple of corrections:

2. Innman(Owner of The Oatmeal), tells Carreon to bugger off, then sets up a fundraiser for amount demanded, money to go to charity, with the promise if the amount is reached he’ll draw a bear getting fresh with Carreon’s mother.

It actually was NOT “Carreon’s” mother. It was the original site that Carreon was supposedly representing’s mother. Carreon interpreted it as his own mother.

3. Carreon sends letter to blogger, threatening him with all sorts of unpleasantness, including the threat to wait for the brouhaha to wind down and for people to forget Carreon’s actions before suing him, waiting long enough to sue that the legal defense groups that offered the blogger assistance(the EFF in this case I believe) won’t be able to help him, and threatening to bring the case against him in various locations, making defense a tricky business at best.

That threat was actually sent to his lawyers, which was Public Citizen Litigation Group, not EFF.

8.5 While legal fees were originally in the order of a couple hundred, due to Carreon’s insane actions in his attempt to avoid being served, which caused things to drag out for a good while, the fee asked for is somewhere in the range of $4K.

Actually, that went up to over $40k…

9. Carreon again flips out, tries to argue that it’s not his fault the legal fees ended up so high(despite the fact that it was his desperation to avoid being served that caused such high costs), and argue that he should only pay the ‘original’ fee of a couple hundred.

Not quite. He’s arguing that there’s no reason for him to pay legal fees at all, no matter what the reason for them. He is also upset that the main lawyer for Public Citizen, Paul Levy, is arguing that a comparable lawyer would charge $700/hour. On that last one, Carreon is off the mark. Having worked with lawyers who charge between $600 and $900 per hour way too much over the past couple of years, Levy is very much in the same class of lawyers, and would easily command $700/hr if not more based on his background and long career in litigation.

tomxp411 (profile) says:

Re: Re: Confused

I remembered the Oatmeal part very well; the part I got confused about was “blogger”. I hadn’t realized there was a third party (aside from the lawyers) involved.

Either way, I still think our legal system needs to go further to protect the rights of people who can’t pay thousands of dollars up front. Let the plaintiff post a bond for the legal fees up front; he can post however much he wants – $100 or $100,000 – but that’s all that he can spend on the case. If he doesn’t think he can win the case on what he can afford, he can’t file.

Tali (profile) says:

Re: Confused

You are a little confused.
Here is the short form of what is going on

1)Satirical Chas (“Someone” as you say) created a blog making fun of Carreon.
2)Carreon not only threatens to sue, but to do so an the most inconvenient time/place (towards the end of the several year statute of limitations, when Satirical Chas’ pro-bono help might not be interested in helping anymore)
3)Satirical Chas sues Carreon for declaratory relief (Basically asking the judge to state that Satirical Chas is within his 1st Ammendment rights and that Carreon has no right to follow through with this threats)
4)Carreon dodged service of all legal documents involved in the suit, yet during this time contacted Saterical Chas’ employer asking for info and records)
5)It was only when he was finally served that Carreon (who was defendant) pulled the “mea culpa”

So Carreon didn’t really “drag [them] to court” as you put it, but he is still both the looser and the reason it went to court in the first place.

James T (profile) says:

Ethic's?

I am not a lawyer but IMO Carreon very clearly took this to extraordinary levels which is because it’s not just his baseless threats it was possibly defamation to his employer with the same threats. This action and his entire unprofessional direction of this situation should be cause for sanctions. A lawyer exhibiting these actions without regret should be disbarred until such time that they understand the power they weld and it’s role in society.

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