Legal Threats By Charles Harder & Shiva Ayyadurai Targeting More Speech

from the chilling-effects dept

Let’s say right upfront: if you are unaware, Shiva Ayyadurai is currently suing Techdirt for our posts concerning Ayyaduria’s claims to have invented email. Ayyadurai’s lawyer in this matter is Charles Harder, the lawyer who filed multiple lawsuits against Gawker, and is credited by many with forcing that company into bankruptcy and fire sale.

Now Harder, on behalf of Ayyadurai, has sent a demand letter to try to have social media comments posted in response to the lawsuit against us taken down. We are writing about this — despite the lawsuit against us — because we believe it is important and we do not intend to have our own speech chilled. This is also why we believe it is so important to have a federal anti-SLAPP law in place, because the chance to chill speech with threats or actual litigation is not a hypothetical problem. It is very, very real.

Harder’s letter is to Diaspora, and it demands that certain posts by Roy Schestowitz be removed (which appears to have happened). Schestowitz is the guy behind the Techrights blog, which frequently covers issues related to things like free v. proprietary software and software patents. Harder’s letter to Diaspora claims that Schestowitz’s posts are defamatory, violate Diaspora’s terms of service, and “constitute harassment and intentional infliction of emotional distress.”

Harder’s letter makes the questionable claim that Diaspora itself is liable for Schestowitz’s statements. There is tremendous caselaw on Section 230 of the CDA holding that a website cannot be held liable for speech made by users, so it’s odd that Harder would argue otherwise, stating that the posts “qualify under the law to establish liability against you.”

One of the key reasons Section 230 of the CDA exists is to protect the freedom of expression of users, so that websites aren’t pressured via legal threats to take down speech over fear of liability. That’s why it grants full immunity. It is surprising that an attorney as established as Harder would overlook this. Elsewhere in the letter, he references Massachusetts law as applying, so it’s not as though he’s suggesting that some other jurisdiction outside the US applies. So, since Section 230 clearly applies, why would Charles Harder tell Diaspora that it is liable for these statements?

Separately, Harder’s letter concludes with the following statement:

This letter and its contents are confidential, protected by copyright law, and not authorized for publication or dissemination.

We have seen similar statements on legal letters in the past and they have generally been considered meaningless, at best. On the question of confidentiality/authorization for publication, that’s not how it works. The recipient of such a letter has no obligation to not disseminate it or to ask for authorization without any prior agreement along those lines. You can’t magically declare something confidential and ban anyone from sharing it. Furthermore, this is especially true when dealing with legal threat letters. While many lawyers put such language into these letters to try to scare recipients (and avoid a Streisand Effect over the attempt to silence speech), they serve no purpose other than intimidation.

Separately, claims of copyright in takedown or cease & desist letters, while they do show up occasionally, are also generally considered to be overstatements of the law. First off, there are questions raised about whether or not general cease & desist threat letters have enough creativity to get any kind of copyright, but, more importantly, even if there were copyright on such a letter it would be a clear and obvious fair use case to be able to share them and distribute them publicly, as part of an effort to discuss how one has been threatened with questionable legal arguments.

Either way, we believe that this fits a pattern of using legal threats and litigation to silence criticism of public figures. In an era when speaking truth to power is so important, we believe such actions need to be given attention, and need to be called out. We also think they demonstrate why we need much stronger anti-SLAPP laws, at both the state and federal level to protect people’s right to speak out about public issues. If you agree, please call your elected representatives and ask them to support strong anti-SLAPP protections, like those found in the SPEAK FREE Act of 2015.

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Comments on “Legal Threats By Charles Harder & Shiva Ayyadurai Targeting More Speech”

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61 Comments
Scote (profile) says:

Re: Theil wasn't closeted

The article in Gawker was written by a gay man questioned why Silicon Valley execs were not more supportive. It was not a hit piece on Theil.

https://techcrunch.com/2016/08/15/peter-thiel-explains-gawker-suit/

And, Theil never sued over the article. But he did decide to surreptitiously utterly destroy Gawker, spending millions of dollars to do so. Hogan lost in court multiple times. It was only Theil’s funding that allowed Hogan enough bites at the apple that Gawker was finally outspent and unable to post the 100 million plus that it would have taken to appeal. Theil spent Gawker into the ground.

Thad (user link) says:

Re: Re: Re:3 Theil wasn't closeted

When it comes to private matter of being gay, yes. You are the lord as well when it comes to disclose your own sex life.

Uhuh. I don’t remember that part of the First Amendment. Can you cite any legal principles that back up your interesting interpretation of freedom of the press?

Keeping in mind, of course, that outing Peter Thiel is not what Gawker was sued for, because it is not illegal, you idiot.

JMT (profile) says:

Re: Re: Re: Theil wasn't closeted

"Thiel was clear, he hit the bully where it hurts: pocket."

So you’re quite ok with very rich people being able to use the legal system as a weapon while the rest of us can’t afford to do that? You’re good with any media outlet being at financial risk this way, even the ones you agree with? The harm this causes to society is far greater than whatever harm Theil might have (but probably didn’t) suffer because of Gawker.

madasahatter (profile) says:

Re: Re:

Gawker went out of business because of their total lack of any ethics and morals left them open to nasty lawsuits. The Hulk Hogan mess was one their own making. The lawsuits and threats mentioned here have no real basis other than someone can not admit that there was considerable prior work (“art”) for workable email systems. The real inventors have not made any ludicrous claims.

Anonymous Coward says:

Re: Re: Re:

No, Gawker went out of business because they ran out of money. This was due to Harder’s never-ending stream of funded lawsuits and appeals, banked by Thiel.

The fact that Gawker was short on ethics and morals is what was beside the point, even though most would agree it was true.

And I don’t know about you, but I see Mike and the rest of the TD team as having ethics AND morals, even if I sometimes disagree with their opinions and conclusions.

So where do you draw the line on the slippery slope? Wherever you draw it, it looks to me like Harder crossed it somewhere, because he’s now moved to suing those reporting on reports reporting reports about facts — hardly what should result in some organization with less money being muzzled because they can’t afford to respond to legal attacks from someone who disagrees with them.

TripMN says:

A Dr. is a Dr., right?

Anyone else notice how Mr. Harder refers to his client as Dr. Ayyadurai throughout the whole letter, but after naming the writer as “Dr. Roy Schestowitz” he refers to him in the rest of the letter as Mr. Schestowitz?

That is some subliminal “my guy is more important than this other guy” wording he has going on there.

That Anonymous Coward (profile) says:

“This letter and its contents are confidential, protected by copyright law, and not authorized for publication or dissemination.”
The same thing we’ve seen time and time again from lawyers who are obviously trying to use their ‘i’m a lawyer’ super powers to cover up their legal threats that are lies.

Someone should send this letter along with a complaint to the appropriate bar. He purposely misstates the law, threatens a lawsuit he could bring and immediately be thrown out of court, and he knows it. He is using his position to forward a clients wishes, ignoring his duty as an officer of the court.

You can advocate for your client, no matter how delusional people think he is, but lying about the law seems like it should run afoul of all sorts of things.

yankinwaoz (profile) says:

Re: Re:

Just like your company’s HR department is there to protect the company, not you. The Bar is there to protect lawyers from the public, not the public from lawyers. After all, it is lawyers who are paying the dues.

I have zero faith that a bar association will do anything to sanction a lawyer as long as he pays his dues.

That Anonymous Coward (profile) says:

Re: Re: Re:2 Re:

Hans is suspended for at least 4 yrs before he can ask to get it back. Of course this has NOTHING to do with his Daddy being a part of that system.

Duffy passed away.

Steele still has one, for now, but there was actually some movement out of the IL bar which was happening much faster than typical. (Imagine from a snails pace to a turtles pace). Steele also has agreed to not even pretend to be a lawyer on tv in FL after some antics there.

Thad (user link) says:

Re: Re: Re:3 Re:

Hans is suspended for at least 4 yrs before he can ask to get it back.

This is technically true, but in practical terms a four-year suspension isn’t any more lenient than disbarment.

https://fightcopyrighttrolls.com/2016/07/03/prendas-hansmeier-stipulates-to-suspension-of-his-law-license/ :

At this point it is important to point out that the words “suspension” and “disbarment” as used in attorney discipline do not have their usual meanings. In professional sports, if an athlete is suspended, a time frame is given and when that time period is over, he is automatically reinstated. The public also generally believes that if a lawyer is “disbarred” (or more technically, his admission to the bar of a court is “annulled”), that such an action is permanent. In reality, in almost every jurisdiction, if an attorney is “disbarred” he has the right to petition for reinstatement at some point in the future. (While such petitions are sometimes granted, they are very rare.) In MN, if an attorney is suspended for 90 days or more, then he must still petition the MN Supreme Court for reinstatement, and such reinstatements are far from automatic.

Many readers of this site may think that Hansmeier has slithered his way through his lawyer discipline process since he was “only suspended” rather than “disbarred.” However, in terms of practical consequences, there is little difference between the two. If he was disbarred, he could still petition for reinstatement at some point in the future, and there are not dramatically better odds of being reinstated after being disbarred as opposed to a significant suspension.

Anonymous Coward says:

Re: Re: Re: Lawyers

Look up Andy Thomas, Maricopa County Attorney who lost his license.
http://www.phoenixnewtimes.com/news/disbarred-ex-county-attorney-andrew-thomas-two-flunkies-must-pay-six-digit-sanction-after-lawsuit-loss-8101495

He and our FORMER Sheriff Joe joined forces to harass more than a few critics, even had settlements from the County to some who were falsely arrested (including a sitting judge). Guess you don’t take on the legal system without some payment.

David Beaver (profile) says:

Charles Harder, I believe you are an idiot

Mr. Harder, it is my opinion and belief that you a raving idiot whose actions are smearing your profession even worse than it typically smears itself. And it is also my belief that Dr. Ayyudari’s claim to having created email is a sign that he is delusional and irrational.

It is not my intention that this post cause you any emotional distress, and should you feel emotional distress, that would be on you.

This post is confidential and I do not authorize you to read it.

Canuck says:

“It is surprising that an attorney as established as Harder would overlook this.”

He didn’t overlook jack. He’s flat out lying.

“This letter and its contents are confidential, protected by copyright law, and not authorized for publication or dissemination.”

More lies.

Guess he’s been taking lessons from Shiva…

Celeste Gaurini says:

re: does Shiva Ayyadurai suck bags of dicks, and eat babies?

Mike, I hope you have the sense to write to the intercept.com-and appeal for a hearing on this issue, or sideline writing work.

Let’s play with language, shall we?

You are an amazing writer, and when trans-humanist type cultists like this potentially baby eating(in the militarist sense) Mormonesque man-boy Shiva Ayyadurai prevail in free speech killing lawsuits predicated on Shiva Ayyadurai’s neurotic-like and compulsive mother dependent egoism, they need to be stopped at the source: their own incest-sniffing, ass kissing, legalistic and narcissistic perversions.

If Shiva Ayyadurai does anything throughout his day other than eat cooked baby bowels and slaughtered children’s minds, I would like to know. When those who misuse the system, and manipulate mere words, to bully or otherwise cuckold the brilliance of good writers and legal scholars such as yourself, so as to create the appearance that they are anything other than potential donkey dick mouthed killers of free speech,or monkey-ball licking sycophants such as this lawsuit indicates is potentially an issue (not in the literal sense of course),such garbage as Shiva Ayyadurai is does not currently indicate that he is anything BUT a patent troll-like fucker of a washed up JAP actress from the most smelly refuse of Hollywood nepotism.

And with this lawsuit of no merit, possibly conceived during his mothers period, I am certain that babies get raped and bombed and killed around the world because people like Shiva Ayyadurai are not necessarily pedophiles or pedophile affiliates in the new world order, but a likely human detritus affiliate by default of his political and relational affiliations, and obsessions with false light lawsuits; and, as the voiceless certainly attain no benefit because of the predatory, and pernicious, vile, and potentially narcissistically abusive potential predilections of Shiva Ayyadurai or his associates, I suspect that nefarious intentions can only result.

And note that I don’t even know the man- but the current press indicate sthat all of the above has merit, and potential is potential; who doe not have potential? But people like Shiva Ayyadurai are potentially murderers of free speech, and worse.

And those like Shiva Ayyadurai who seek to suppress free speech. kill free speech, take big curry stained shit on free speech, and oppress speakers of free speech are capable of anything-murdering puppies is not beyond he reach of people like Shiva Ayyadurai given the right circumstantial justifications; and this is just my opinion, and I cannot qualify it as anything other than that; I do not intend to infer anything else.

If Shiva Ayyadurai is in fact a true deviant, a puppy killer, a bay muncher, or merely just a piece of shit or otherwise a scumbag drinking piece of crap with poop stained lips is not mine to determine, let him come forth an refute anything herein that might refute the imputation,as he is welcome to refute my suppositions,or opinions, and pure speech conjectures about his type of bottom scraping character, or about his possible, or potential predilections ( and really, any short dicked Shiva afflicted moron who would marry Fran Drescher is certainly a suspect from the get go) as is his right.

You see, when dog-fucking, or diaper changing types and others who are potentially affiliated with them,such as Shiva Ayyadurai and his host of free speech killing pedophilesque tactics, or pizzagate type semi-cultists who adhere to Shiva Ayyadurai’s free speech killing views, and standards win, everybody loses.

And so, in finality, let me be clear: I am making no indictments against this man, and merely noting that his “ilk” falls within a certain known, and legally identifiable group of persons and individuals who despise open dialogue and opinion; that I am saying the worst scum and scuff of the pedophile minded, and free speech suppression types of our modern world simply remind me of Shiva Ayyadurai; which is no fault of his own per se, no indication of his actual background or character; nor an indictment against his own narcissistic self-perception- it is simply my observation that garbage types float around the world like pieces of common shit in a toilet bowl, like Shiva Ayyadurai, and with with other garbage types, and nothing more.

Put another way- this guy is a piece of shit, Shiva Ayyadurai is clearly a cowardly mole on the Constitution, with an inflated ego; and his claim to the invention of “email” is falsely predicated, like so many predicated falsities before it, on the conflation of a “word” with a meaning that has never been tested, or in a word that was in play and in “practice” that existed long before his little batcha boy-type ass claimed the word in front of his superiors, who no doubt flattered his little fragile ego.

Or, in other words. I will enjoin your suit, if you need a second friend of the court brief- but ass fucker backdoor types who enter the world through the back doors of justice like this guy cannot prevail when they leverage all of our rights against egotistical falsehoods predicated on juvenile fantasies of Shiva Ayyadurai’s own sense of Freudian pre-pubertal power enhanced by whatever it is that enhances these types of “man-boys.”.

And certainly, his lawsuit did not differentiate the two, that I could tell- is he defending the word “email” or is he defending the concept “email?” From what I can see, even Shiva Ayyadurai and his wife Fran Drescher, have no clue; and pre-pubertal power, attained by morons, like Shiva Ayyadurai, and extrapolated as an essentially bogus lie into generations carries the burden of rebuttal, and that, within the vigorous opposition to “patent trolling” via the inability to differentiate the word from the established meaning of the words that came before it.

Or when the dick finally rises, and it is just a wiggly thing, without substance- or, Shiva Ayyadurai

Celeste Gaurini says:

Correction- please insert this above, so my meaning is clear and copyrighted: I intended to say above “his claim to the invention of “email” is most likely, if not surely, falsely-whether deliberately or otherwise predicated, like so many predicated falsities, and overlapping technology thefts and usurpations and otherwise not-so-clear-cut innovations before it; predicated on the conflation of a “word” with a meaning that has never been fully tested, or in a word that was or was not actually in play and in “practice” on a concept that existed during, and before his little batcha boy-type whispy ass claimed the word in front of his superiors”

Or, it’s a copy right, not a patent issue.

I meant to to say succinctly, and with brevity that this cow’s vagina of a “man” ‘possibly predicated’ his word/concept/patent/total garbage vanity project on conceptions that came well before it; and possibly usurped the meaning of the concept, with a possible shitstain in his possibilities and karma forever after for being the cowardly sort who would sue a writer.

Who would sue a writer? Only a guy whose karma has turned into sanghi shitstains, or Shiva Ayyadurai.

Karma is a little sulky, vindictive, and atrocious bitch-thing named Shiva Ayyadurai, and certainly, Kali will slap his willing wimpy face with bull foreskins until he is in hell, and then, shit full-firehose pre-digested kheer pudding-karma upon his face until eternity with the ferocity of Kali’s full blast speed bag karma bitch slapping, regardless of fact or fiction of his claims, patents, or attempts at vindicating his narrative in a court room full of cash, as he lacks the actual balls to deal with a humble writers opinion in a back alley, face to face, like real men can or would; and like like real men often do ( And Fran- I am sure you know this is true by now? But this little pricks money tastes gud huh?)

What’s wrong with you people??

On second thought, I retract all of my above comments in their entirety, and note that I wrote them in the heat of opinionated passion about a pricky little public figure,and I wrote them in a public forum, in order to uphold the spirit of open discourse and debate, and now retract them, and correct any false or misleading statements, as I am cowering in fear that pissants and other cowards like Shiva Ayyadurai will come after me with the false, artificial, and blatantly compensating penis of millions of dollars, in lieu of the real actual penis of a single shred of actual manliness, or honor.

What a coward.

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