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

Free Speech

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.

Filed Under: attorney's fees, cathy gellis, charles carreon, first amendment, paul levy, vexatious litigation