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As Tulsi Gabbard's Silly Attention Seeking Lawsuit Against Google Falters, She Files Equally Silly Lawsuit Against Hillary Clinton

from the a-slapp-asset dept

As you may recall, last year, Presidential candidate and current Congressional Rep. Tulsi Gabbard filed a laughably silly lawsuit against Google. We pointed out at the time that it had no chance at all, and echoed, quite directly, the debunked claims that some conservatives make about how Google censors them… even though Gabbard is not a conservative politician. It still threw the same kitchen sink of dumb legal arguments into the complaint, arguing that Google was a “state actor” (it’s not), and that Google’s moderation choices were a violation of California’s civil rights law, the Unruh Act.

What got much less attention was that in September, Gabbard’s lawyers filed an amended complaint that dropped all of the civil rights and Lanham Act claims and tried to press on solely with the 1st Amendment (and related 14th Amendment) claims. These will fail spectacularly. Google is not a state actor. There is no 1st Amendment claim here and any attempt to make one is a sign of pure silliness.

Of course, as that lawsuit is falling apart, it appears that Gabbard has decided to file a new vexatious lawsuit to get back in the headlines. This time she’s sued Hillary Clinton for defamation. The actual complaint is really bad. It’s laughable, and the lawyers who signed their names to it — Brian Dunne, Dan Terzian, and David Hecht, from Pierce Bainbridge — should be embarrassed. Of course, Dunne and Terzian also filed the silly case against Google, so I’m guessing they don’t much care about their own reputation as lawyers.

At issue, Hillary Clinton made some — admittedly stupid — comments about Gabbard on a podcast last fall, saying that the Russians supported Gabbard and that she might run as a 3rd party candidate.

PLOUFFE: [Trump is] going to try to drive people not to vote for him, but to say you can?t vote for them either…

CLINTON: They?re also going to do third party again. And I?m not making any predictions, but I think they?ve got their eye on somebody [Gabbard] who is currently in the Democratic primary and are grooming her to be the third-party candidate. She?s the favorite of the Russians, they have a bunch of sites and bots and other ways of supporting her so far. And that?s assuming [Green Party 2016 candidate] Jill Stein will give it up, which she might not, because she?s also a Russian asset.

Again, these comments are silly, bordering on conspiracy theories in the same vein that our current President likes to buy into all too often. But it’s not even remotely defamatory. At no point does she make any false statements of fact about Gabbard. First off, the 1st Amendment and the courts’ interpretation of it gives great leeway to political speech, considering that’s kind of the whole point behind the 1st Amendment. As such, the courts will almost certainly take this as standard overheated political rhetoric.

Second, breaking down what Clinton said, it makes no factual claims about Gabbard herself — but rather about “the Russians.” She may be wrong about what the Russians are doing, but that’s not defamatory towards Gabbard. Whether or not the Russians do favor Gabbard, or whether or not the Russians would like her to run as a 3rd party candidate, or whether or not they have a bunch of sites and bots promoting her — that’s all about the Russians. Even the “Russian asset” comment (which Clinton never directly states about Gabbard, but implies by saying it is “also” true of 2016 third party candidate Jill Stein), is not defamatory. A Russian asset doesn’t mean someone who is purposefully doing the bidding of the Russian government. That would be a Russian agent. Simply saying someone is an asset to the Russians, means that they’re valuable in some way to the Russians, and not that the Russians’ control them. And, as such, it’s clearly a statement of opinion.

Clinton can argue that the Russians benefit from a Gabbard campaign — and other people (including Gabbard, if she chose) could argue the other side. And that is the nature of political debate. But it is not defamatory to state your opinion, no matter how silly it might be.

But, of course, it appears that Gabbard and her lawyers at Pierce Bainbridge are not actually interested in righting any legal wrongs with these lawsuits. They just are ways to rile up a base and get her name back in the headlines. Even David Frum at the Atlantic has noted that these are lawsuits for attention from a Presidential candidate who is not going to win anything.

But then, much of Gabbard?s complaint reads less like a legal argument than a stump speech. It is not easy to imagine that any federal judge would look with much favor on the relentless boasting and self-promotion in a lawsuit that opens:

1. Tulsi Gabbard has lived her life with one guiding principle: putting the needs of others before her own. That?s why she joined the Army National Guard. That is why she campaigned for and was elected to the United States House of Representatives. And that is why she is running for President.

The 14-page brief crams in 13 references to Gabbard?s service in the Army National Guard.

Rather than being structured to convince a judge, the brief wishes to invite belief in an alternative universe where Hillary Clinton is running for president in 2020?and where Gabbard somehow presents an important obstacle to Clinton?s ambitions.

This is not unlike the lawsuit against Google, which excited a clueless base who insisted to us that Gabbard must have a strong case and Google would be taken down by it. Yet, of course, Gabbard’s own amended complaint, in which she dropped all of the claims that people kept telling me were easy wins for her, made no news at all.

This seems to be an all too common path taken by some politicians these days. Rile up your base by filing frivolous lawsuits. This is why we actually need stronger anti-SLAPP laws in every state, plus a federal anti-SLAPP law. It is, of course, notable, that Gabbard’s suit against Clinton was filed in the Southern District of New York, and NY’s anti-SLAPP law is incredibly weak and is unlikely to apply in this instance (it only applies to statements made while petitioning the government).

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Comments on “As Tulsi Gabbard's Silly Attention Seeking Lawsuit Against Google Falters, She Files Equally Silly Lawsuit Against Hillary Clinton”

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bhull242 (profile) says:

PR lawsuits should be banned

I’m seriously getting annoyed with all these PR lawsuits: lawsuits that have no chance of succeeding and are solely there to inconvenience the defendant(s) and, primarily, draw attention to the plaintiff and/or their cause. It’s just dumb and a waste of everyone’s time.

This one in particular seems like an especially egregious example; there was no need to mention her military service at all, and no plausible justification for including it more than once or twice. It’s also insane that she seems to think that she’s running against Hillary Clinton or something.

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Stephen T. Stone (profile) says:

Re: Re:

If Tusli Gabbard wants to attack Hillary Clinton for what she said, Gabbard should issue press releases or go on podcasts or whatever. An obvious SLAPP action should never — and I do mean never — replace an actual public relations “offensive” as a way of putting a message into the public sphere.

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bhull242 (profile) says:

Re: Re: Re:6 Re:

That is… interesting. So because she essentially used the words in a different order, it suddenly makes no sense that she could possibly referring to any definition of “asset” than “possession”? That’s not how it works.

People have used “asset” in similar syntax to mean “advantage” or “tool” or something along those lines. Let’s leave the quibbling to the lawyers.

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bhull242 (profile) says:

Re: Re: Re:6 Re:

First, I don’t gamble, period. I wouldn’t place a wager on whether the Sun will rise in the East tomorrow (and not just because I’d feel guilty taking advantage of someone crazy or dumb enough to take that bet).

More importantly, you’re free to disagree, but would you mind explaining what fault you perceive in my reasoning?

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Anonymous Coward says:

Re: Re: Re:7 Re:

The fact you don’t gamble (at all) tells me two things; One, your belt’s on too tight. And two, you’re boring me to death. As far as this lawsuit goes, of course Gabbard has a case, I just wonder if there is a Judge in this world who wants to piss off Hillary Clinton by letting the suit go forward.

bhull242 (profile) says:

Re: Re: Re:8 Re:

Well, one reason I don’t gamble is because I have a relative who had a gambling addiction. Another is the fact that I’m a student who can’t afford to gamble.

As for whether Gabbard has a case, I don’t think she does. I also have no reason to believe that the court will rule in Hillary’s favor due to some sort of fear of pissing her off. At any rate, you didn’t answer my question, but fine, whatever.

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Anonymous Coward says:

Re: Re: Re:9 Re:

Ok about your reasoning? That is the question? And I was just kidding about you not gambling! I admire you actually. Well your reasoning is probably spot on on one hand. It will be considered by a jury if it gets that far. If Ms Gabbard doesn’t have her day in court over this piercing, gutwrenching accusation by a firmer First Lady and Secretary of State, I will eat my hat and videotape it and upload it and link to it here at Techdirt. But, if this case is settled out of court, I keep my hat on my head.

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Anonymous Coward says:

Re: Re: Re:7 Re:

Ok, you’re standing at the booth, the curtain’s drawn. You don’t know any of these candidates from Shinola. You haven’t made up your mind. You are wondering, standing there, if your vote is even gonna count..

[] Gabbard
[] Joe Darden
[] Bonnie DoGood

And this thought comes that maybe Gabbard is a Russian asset.
You are instinctively NOT going to vote for her "just in case."

That is the damage to Ms Gabbard’s carreer.

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bhull242 (profile) says:

Re: Re: Re:8 Re:

This would be a decent response to a different post I made where I mentioned that Gabbard had no real chance of winning the primary to begin with, but in response to this comment, the (speculative) damage to Gabbard’s career makes no difference to the lawsuit if I’m right and the court rules that it’s a statement of opinion. It also won’t make a difference how damaging it is if Gabbard can’t prove that the statement is provably false and that it was made with knowledge that it was false or reckless disregard for the truth.

I think it’s also worth noting that pretty much everyone else running has a lot more name-recognition than Gabbard anyways, so, again, I don’t think she had much of a chance to begin with. But that’s a whole different story.

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Anonymous Coward says:

Re: Re: Re:2 Re:

The funny thing Ivan. Is that it doesn’t matter if you are running for a thing (that no Real American would capitalise) or not, in a defamation case. Secondly, I know that English is a second language for you IRA folks However, as a proper title, Russian Asset has both words capitalised. I know you guys are working huge chunks of mandatory overtime in the Foxnews Mines because of the impeachment, but get your shit together bro.

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Anonymous Coward says:

Re: Re: Re:9 No one writes "American Politics"

Let’s suppose for a moment that someone here signed in to Techdirt gets a call or letter to be a juror for this case. The mere fact that there are opposing views being discussed here about this case may very well be the reason the lawyers can’t disqualify you for being biased.

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Stephen T. Stone (profile) says:

Re: Re: Re:10

Knowing about opposing views to a given situation doesn’t mean one considers those views to be equally valid. I know about the QAnon believers who sincerely think drinking bleach will prevent them from contracting the coronavirus. That doesn’t mean I think their (ignorant, maybe intentionally suicidal) beliefs deserve the validity of serious consideration. I can know about opposing views and still be biased in favor of my own views because that’s how biases work.

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Stephen T. Stone (profile) says:

Re: Re: Re:12

This platform isn’t “unbiased”, either. Practically everyone here is writing off your bullshit on sight. You can post your “opposing ‘views’ ” (read: trolling bullshit) all you want, but that doesn’t make Techdirt a “neutral” platform, and no judge in the land would say it does.

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bhull242 (profile) says:

Re: Re: Re:5 Re:

I only bothered correcting them because they were trying to correct someone else. Write it as “Russian Asset” all you like. Just don’t tell other people that’s the correct way to capitalize it and expect no one to correct you.

(Basically, I was pointing out the hypocrisy and inaccuracy of someone else “pushing such micromanagement on our speech”.)

Also, I’m American, too. You might’ve figured that out from the fact that I spelled “capitalize” with a z, not an s.

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Stephen T. Stone (profile) says:

Re: Re: Re:3

“Russian” will always be capitalized because it’s a proper noun. “Asset” is neither an official title nor a proper noun; it should only be capitalized when it is part of a headline/title (e.g., “The Russian Asset Conspiracy”) or the first word in a sentence. Pick up an AP Stylebook, for Strunk and White’s sake.

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bhull242 (profile) says:

Re: Re: Re:3 Re:

The funny thing [… i]s that it doesn’t matter if you are running for a thing […] or not, in a defamation case.

Well, it may matter, but not in the way the other guy might think.

If the plaintiff was a private figure before running, and they were running for office at or before the time the allegedly defamatory statement was allegedly (or actually) made (regardless of whether or not they still are), then running for office will make the plaintiff a public figure, so the plaintiff must allege (then prove) that the statement was made with actual malice in order to state a claim for (and ultimately prevail in) a lawsuit for defamation, which is a higher standard to meet than you would need had the plaintiff not run for office and remained a private figure. In this scenario, running for office actually makes it harder for them to succeed in a defamation case, so in that sense, running for office does matter.

Of course, in this case, Gabbard was already a public figure before running for President, so the fact she’s currently running for office makes no actual difference in the defamation case, at least not unless and until she prevails and they need to calculate damages. Still, neither the fact she is currently running for something nor the fact that she was running before and at the time the allegedly defamatory statement was made does not, cannot, and should not improve her chances of succeeding in a claim for defamation, whether at the dismissal, summary judgement, post-trial judgement, or appellate stages of a lawsuit.

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Stephen T. Stone (profile) says:

Re: Re: Re:2

Three things.

  1. Gabbard was called an “asset”, not an “agent”. Other comments on this article can walk you through the difference.
  2. Clinton offered an opinion about Russia and who that country considered to be an asset in the 2020 American presidential election season. Opinions, no matter how derogatory, are protected by the First Amendment.
  3. Nobody runs for “American Politics”; they run for office. Were you paid in rubles or vodka for posting here?

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Anonymous Coward says:

Re: Re: Re:3 Re:

Ok Stone, lets just for fun’s sake suppose you had enough savvy, education and money to run for Polital office even the Office of the Presidency. A former Secretary of State and former First Lady and former Presidential candidate called you a Russian Asset. I want to hear how you wouldn’t want to sue the b’jesus out of that person seeing how it damaged your reputation before the American Voters!

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bhull242 (profile) says:

Re: Re: Re:6 Re:

Aside from the fact that “actual malice” is harder to prove than you think it is, if the statement is an opinion or substantially true, then it’s not defamation regardless of the motive behind it. And even if it’s false and stated with malicious intent and capable of diminishing or damaging one’s reputation, since the plaintiff is clearly a public figure, she still has to prove the statement was made despite them knowing it was false at the time the statement was made or in reckless disregard for the truth (which is a higher bar than just “didn’t bother to research”).

Malicious intent itself doesn’t matter here.

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bhull242 (profile) says:

Re: Re: Re:8 Re:

Honestly, I don’t think Gabbard’s chances actually changed that much because of what Hillary said. She’s still not likely to lose her current position, and she still doesn’t have any real chance of winning the Democratic nomination for President.

Additionally, you could sue someone for calling you a meanie if you wanted. You won’t win, but you could do it.

And before you call me biased against Gabbard or biased in favor of Hillary, let me just say that Hillary was dumb for saying it, and Gabbard is right to be upset about it. I just think the lawsuit over it is stupid and that, based on current trends, Gabbard is incredibly unlikely to win in the primaries. I also think Gabbard is a bit too eager to sue over perceived slights and is overreacting a bit.

Stephen T. Stone (profile) says:

Re: Re: Re:9

Gabbard doesn’t stand a chance in the primaries. She isn’t a nationally known entity like Biden, Warren, or Sanders; she isn’t a unique outlier like Buttigieg; and she isn’t capable of running a media blitz like Bloomberg. Gabbard will lose, and after she drops out, I imagine she’ll eventually toss an endorsement towards one of the four frontrunners in the hopes that (should a Democrat win the White House) she’ll find a position in the White House.

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Anonymous Coward says:

Re: Re: Re:10 Re:

Well, thank God I don’t live in a world according to Stone. If a person (and I am just supposing here) can’t stand the first three on your list and an outlier named, Buttigieg just doesn’t sound like your man, I say Gabbard might have that chance if now EVERYONE wasn’t wondering if she was a Russian ASSET.

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Wendy Cockcroft (profile) says:

Re: Re: Re:4 Re:

I want to hear how you wouldn’t want to sue the b’jesus out of that person seeing how it damaged your reputation before the American Voters!

I’ll bite. I wouldn’t sue because politicians trash-talk each other all the time. "Russian Asset" is the new "Socialist." What I would do is push back, using her own words to paint her as a delusional, paranoid loon. The funnier or more apt you are on social media, the more popular you become. Why do you think Trump’s infantile name-calling is so effective among his base? There’s no need to sue.

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bhull242 (profile) says:

Re: Re: Re:8 Re:

Well, yeah, but the same happened with Trump. He said demeaning stuff in publicly viewed interviews without the subject being present, and that would spread across the internet quickly and the news outlets. So yeah, I’m not really seeing a difference here.

I’ve also noted that a number of the news outlets expressed some skepticism for Hillary’s assertions, so it seems like there was some mitigation without Gabbard having to respond at all.

bhull242 (profile) says:

Re: Re: Re:7 Re:

Okay, I was just reading a bit about libel law, and while there’s still no material difference between what Trump did and what Hillary did, it sorta matters that it was an interview, kinda (though Trump did many of his insults and false claims in interviews as well, so again, no material differences here).

See, one of the requisite elements of defamation (regardless of whether it’s per se or per quod, whether the plaintiff is a public figure or not, whether the statement was regarding a matter of public interest or not, and whether it’s libel, slander, or some other kind of defamation (if there are any)) is that the allegedly defamatory statement must be an unprivileged statement made to a third party.

In other words, even if person A makes a provably false statement of fact (one which was not intended or likely to be taken as hyperbolic rhetoric, satire, sarcasm, hypothetical, speculation, or a joke) about person B that would normally be defamation per se (as opposed to per quod) and person A knew the statement was false when they made it (so it would be made with actual malice), and even if others somehow learn about it (at least assuming person A does not later share a recording of the statement with some third party or something), if person A only makes that statement in a private conversation with person B and no one else or only states it to themselves when they reasonably believe that they would not be overheard (that is, none of their actions were intended to lead to them making the statement to a third party or making the statement known to a third party), then person B would not be able to prevail in a claim for defamation against person A because person A was not saying it to a third party.

Again, though, as applied to this situation, that’s not really an issue. No one is saying that this was not an unprivileged statement to a third party, Trump’s statements and insults were also made to a third party and were unprivileged, and the issues people have with this lawsuit (that the statement is, probably is, or might be a statement of opinion that does not imply undisclosed false facts; the statement was made regarding a public figure, and it is unlikely Gabbard would be able to prove actual malice; the statement was not technically saying anything about Gabbard; etc.) still fully apply and are unchanged by this element of defamation as Gabbard has to prove each of the elements of defamation, not just one.

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Anonymous Coward says:

Re: Re: Re:7 Re:

You come hear to slurp slurp squish squish up to the collective techdirt opinions and parrot others’ opinions. What makes you think there can’t be a nonbiased discussion here without throwing down the gauntlet and unsheathing the T-word because someone differs in their point of view. You are worse than far leftism. That is exactly the mo of extreme left to kill free thinking and remove rights to free speech by continually discouraging and disrupting opinions that are way to the fuck to the right from yours.

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Stephen T. Stone (profile) says:

Re: Re: Re:18

I wouldn’t say “expected” so much as “understandable”. But even if Hamilton sincerely never heard of the Rosy Palms metaphor before I used it against him several times, his continued refusal to use it correctly since then (always “Palmer” instead of “Palms”) marks him as a troll who is unknowingly ignorant at best and intentionally ignorant at worst.

And yes, this is Hamilton we’re talking about. The “Palmer” usage, not to mention his general writing style, gave him away.

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bhull242 (profile) says:

Re: Re: Re:4 Re:

First, people say mean things about each other all the time, especially regarding politicians and people running for office. If you feel the need to sue people over something like this, maybe you aren’t cut out for public service.

Second, what I might want to do is immaterial. The only question is what the law says. And the law says that just because a statement is damaging to your reputation doesn’t necessarily make it defamation. Based on our understanding of the statement in question, it is a statement of opinion and one that doesn’t imply false, undisclosed facts, so it cannot be defamatory as a matter of law.

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Stephen T. Stone (profile) says:

Re: Re: Re:4

Three things.

  1. Your capitalization of various words that are rarely capitalized in the middle of a sentence — e.g., “polit[ic]al”, “asset”, “voters” — marks you as someone who has only a working familiarity with the English language. You can imagine how that might make people think you’re a foreign agent. (Also: “bejesus”, not “b’jesus”.)
  2. My feelings on whether I want to sue that person have no bearing on whether I should — or if any such suit would even have enough merit to get past a dismissal motion.
  3. I’m not the kind of person who would file a defamation suit unless I felt as certain as any person can be that I could win that suit on the merits.

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bhull242 (profile) says:

Re: Re: Re:2 Re:

Ever heard the saying, “The best defense is a good offense”? While I don’t believe that saying should apply when dealing with this sort of thing, the fact is that a defamation lawsuit is a form of defense through offense. (It also seems to be the case that a lot of plaintiffs seem to feel this way.) And an attack in self-defense is still an attack.

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Thad (profile) says:

Re: Re: PR lawsuits should be banned

Considering most of these lawsuits include some type of claim the plaintiff has been censored in some way, do you REALLY want to give them any support to that claim?

You’ve…got this exactly backwards.

Anti-SLAPP laws aren’t a form of government censorship. SLAPP suits are.

Gabbard — like Nunes, and Ayyadurai, and McInnes, and, sadly, Lessig — is attempting to use the power of the state to silence her critics. That’s censorship. Saying "No, you can’t do that" is not censorship.

Gabbard, Nunes, et al can make whatever claims they want about being censored; it may be a bunch of foolish nonsense, but they have every right to do so. What they don’t have a right to do is to manipulate the machinery of the state to punish their critics, and we need stronger laws preventing them from doing so.

Norahc (profile) says:

Re: Re: Re: PR lawsuits should be banned

I understand that. My point was that if you banned these types of lawsuits, you’re just adding fuel to their claims of being censored. Doesn’t mean they’re correct, it just means they have more to whine about. And considering her job is to pass legislation, if you take away the courts from them then they will just try and legislate their goals. It would almost surely spell the end of any hope for a national Anti-SLAPP law with any real force behind it.

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Norahc (profile) says:

Re: Re: Re:3 PR lawsuits should be banned

No. We desperately need Anti-SLAPP laws, federal and state.

Anti-SLAPP laws do not prevent people from filing a lawsuit and getting at least a chance to prove their case in a court. They just carry penalties if the lawsuit is deemed to be a SLAPP suit.

Thad (profile) says:

Re: Re: Re:4 PR lawsuits should be banned

I mean, that’s true of all laws. Laws against theft and murder don’t physically prevent people from committing theft and murder; they sanction them after the fact.

Banning SLAPP suits means passing anti-SLAPP laws. No, that won’t prevent people from filing SLAPP laws, but it will punish people who do. Because that is how laws work.

bhull242 (profile) says:

Re: Re: Re:5 PR lawsuits should be banned

Well, I suppose that technically a ban would fall under at least one of the following:

  1. It would be a crime to file a SLAPP suit, which is much harsher than what you’d get from an anti-SLAPP law.
  2. It would remove the litigation privilege that legal filings and statements made in court generally get from at least the complaint, making the complaint itself open to being the basis of lawsuits about, for example, defamation, invasion of privacy, false light, etc. Again, this isn’t exactly what an anti-SLAPP law would do.
  3. It would allow and encourage SLAPP suits to be dismissed sua sponte much like lawsuits filed in forma pauperis. This isn’t necessarily the case for anti-SLAPP laws, which generally require the defendant(s) to file a motion under the anti-SLAPP law.

So a ban could be more restrictive than what one would get from an anti-SLAPP law.

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That One Guy (profile) says:

Re: Re: PR lawsuits should be banned

Oh they could(and would I’m sure) whine up a storm about how they’re being ‘censored’ and now even the courts are out to get them, but some actual penalties in place for abusing the court system for personal gain would be more than warranted I’d say, and being called on their actions in court for wasting everyone’s time with a mix of a SLAPP suit and PR stunt would be trivial for opponents to run with, making it a much less tempting option.

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bhull242 (profile) says:

Re: Re: PR lawsuits should be banned

FTR, the subject line was meant to be hyperbolic. Obviously, the idea of banning lawsuits is ridiculous. (I don’t really think this would be a free speech issue, though, but I agree that that wouldn’t exactly stop these sorts of people from calling it censorship even though it really isn’t.)

I do think something should be done, like fee-shifting, to discourage these sorts of lawsuits, which is why I support anti-SLAPP laws.

Part of the issue here is that, although Hanlon’s Razor cautions otherwise, this really doesn’t feel like a case where the plaintiff believes they have any actual chance of winning, nor does this one seem to be complaining about censorship (unlike with her lawsuit against Google); it seems more like it’s just her trying to drum up support for her campaign rather than having any actual grievances for the court. I shouldn’t assume malice, but it’s hard not to considering how transparent this lawsuit is about bragging about Gabbard.

Of course, there is still plenty to support the idea of incompetence. For example, there is the aforementioned issue that she’s acting as though Hillary Clinton is her opponent in the 2020 election. It’s also ridiculously weak with regards to defamation cases, as not only does it target what is clearly opinion about Russia’s goals rather than Gabbard, this is also about a public figure, which means that any provably false statement of fact would have to be made with actual malice, a very high bar that is rarely met. And in the Google lawsuit, in addition to dropping all her claims but the one with the greatest chance of failure (which, why?), she’s essentially arguing that Google should be forced to accept her money in order to broadcast her message the way she wants to, which is one of the weakest claims of censorship I have ever heard.

It also takes balls to be whining about censorship in one lawsuit then try to censor someone else in another. Not that there’s anything new about that, but still…

But yeah, in my opinion, these PR lawsuits are even worse than most frivolous lawsuits in that the plaintiff is using the courts as advertising while also wasting the time and money of everyone involved (including the court’s, which means wasting taxpayer money) over a claim(s) that has no chance of success whatsoever. They have all the same problems that most patently frivolous lawsuits regarding speech have combined with the improper purpose of being meant as a publicity stunt. I really think that, even without anti-SLAPP laws, defamation laws (and similar laws like false light) should have a fee-shifting provision for frivolous cases (similar to how even our copyright law and the Lanham Act do).

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Anonymous Coward says:

Re: PR lawsuits should be banned

Who is paying you to disrupt and disinform on this lawsuit? Do you know how hard Tulsi Gabbard has worked for America and indeed to be a rock solid American? You just jump right in to accuse her of promoting a pr lawsuit for herself and campaign. Did you read the lawsuit in its entirety? This is a very sincere attempt to right the wrong HRC has done to her earnest reputation, not for PR.

Stephen T. Stone (profile) says:

Re: Re:

Filing a lawsuit that clearly means to chill speech is not the best way — or the only way — to “restore [one’s] reputation”. Gabbard’s sincerety in her intent doesn’t matter here. Neither does “how hard [she] has worked for America”. Only the facts and the law matter, and from what I can tell, the law is not on her side here.

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Stephen T. Stone (profile) says:

Re: Re: Re:2

Two things:

  1. We already have laws against defamation, and they’ve been around for a lot longer than you or I.
  2. “Presidential candidates” isn’t a proper title and thus shouldn’t be capitalized. “President” is a title, but according to pretty much every stylebook I’ve read, it should only be capitalized when used as either part of an official title (e.g., “President of the United States”) or a preceding title for a specific person (e.g., “President Barack Obama”).

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Stephen T. Stone (profile) says:

Re: Re: Re:2

Yes, laws are subject to interpretation. And the Supreme Court has interpreted defamation laws in a way where Gabbard’s case lacks a real chance of surviving a motion to dismiss. You’re free to say the Supreme Court is wrong, but I would think that questioning the wisdom and will of the Supreme Court in this instance goes against your ideas of American justice — and puts you squarely in the realm of advocating for revenge.

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bhull242 (profile) says:

Re: Re: PR lawsuits should be banned

Look, here’s my reasoning: setting aside the merits of the case itself (or lack thereof), too much of the lawsuit is devoted to promoting Gabbard’s brand. For example, there was no good reason for her to bring up her military service so many times in the complaint. It doesn’t help that it’s a pretty weak case argued poorly.

To be honest, it being a PR lawsuit was me being somewhat charitable. I could have concluded that she has such an inflated sense of self-worth that she has a compulsion to constantly brag about her accomplishments regardless of context. Now, I don’t believe that, but my point is that I was trying to find a relatively decent reason for her to file this particular complaint.

Maybe she had some legitimate reason for the defamation lawsuit itself (although I’m of the opinion that a lawsuit should be a last resort if at all), but the content of the complaint suggests to me that that wasn’t the primary motivation. But that’s just my opinion.

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Anonymous Coward says:

Re: Re: Re: PR lawsuits should be banned

I have an idea! All Political office seekers should have to endure at least two years of military training before they get to hold the reins or at least Congress, House of Reps and President, Vice President. That way they’ll all know how hard people work in the military, how much of a commitment it is to go all in for your country that you would never think of saying something like what has been said here to another person seeking office.

bhull242 (profile) says:

Re: Re: Re:2 PR lawsuits should be banned

I’m opposed to a requirement for military service for any public office. Military service is not a prerequisite for patriotism or wisdom, nor for compassion and gratitude for those who serve. It should not be a prerequisite for public office, to serve our nation in other ways.

Also, I still don’t believe that Hillary’s statement in any way impeaches Gabbard’s character or in any way diminishes or relates to the service she offered to our country, as a member of the military or her past service as a politician.

Finally, and this doesn’t relate to my opinion of Gabbard at all, but military service, while it is certainly strong evidence of patriotism and loyalty, doesn’t necessarily mean that one is a patriot or more of a patriot than others, and their loyalty is not completely unimpeachable (though the burden of disproving it is much, much higher). Nor does it make them inherently more suitable for public office or prove that they have strong morals. Traitors, deserters, spies, double agents, and those who abuse their power do, sadly, exist. It also does not and should not make it so that they have a lower burden of proof for proving defamation (per se or per quod, libel or slander) in a court of law, particularly if they are public figures.

Again, I want to stress that, as a general rule, military service is strong evidence of patriotism and loyalty to their country, and I do not intend to diminish their service, bravery, loyalty, patriotism, or importance to our nation and the world at large, nor those of Gabbard in particular. I merely meant to point out that the military is a large organization of humans, humans are fallible, and bad actors are essentially inevitable in any organization even a fraction of the size of our military, and it’s especially likely when the organization has such great power and authority—internally and externally—and as such, one shouldn’t overplay the “military service” card, particularly where it’s unnecessary or irrelevant. They work hard and make a strong commitment in enlisting, yes, and their service is very important; nothing I say can take that away. But that doesn’t and shouldn’t make them immune to or free from criticism, and they are not perfect. They are still imperfect humans like the rest of us, and they are and should be subject to the same rules of discussion, criticism, press coverage, and speculation that anyone else with the same level of publicity does.

I should also point out that I believe that Hillary shouldn’t have said what she did; it was a stupid thing to say. However, as dumb as it was, I also believe that she has the First Amendment right to say it, whether in private, in public, or on a public broadcast, and whether it’s to Gabbard’s face, behind her back, or in an interview without her presence.

Gabbard’s military service has nothing to do with analyzing whether or not Hillary’s statement was a defamatory statement, and therefore has nothing to do with whether or not Gabbard’s lawsuit will survive a motion to dismiss, survive a motion for summary judgment, or ultimately prevail.

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Stephen T. Stone (profile) says:

Re:

Even if the statement is one of fact, saying “this person is a Russian asset” is not saying “this person works for the Russian government”. A person can be an asset to a country’s government without having to work directly (or even knowingly) for that government.

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bhull242 (profile) says:

Re: Re:

A “Russian asset” is someone who the Russian government considers useful for them; it doesn’t mean that the person in question is willingly or knowingly assisting Russia in any capacity. It could simply mean that Russia thinks that the person could be useful to their goals at some point.

Furthermore, given the full context, it seems pretty clear that this was a speculative statement of opinion that Goddard might become inadvertently useful to the Russian government in the upcoming election, and that Russia appears to be trying to make this so. It’s like when one of the birthers calls one of their critics a “useful idiot”; it’s an opinion that the person’s words or actions are or may help a certain agenda, whether or not that was the intent behind those words or actions.

Calling them a Russian agent, on the other hand, is a completely different kettle of fish altogether. That would mean that the person is knowingly assisting Russia in pushing their agenda, and that Russia is backing them. That would definitely be a statement of fact.

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Stephen T. Stone (profile) says:

Re: Re:

A “Russian asset” is someone who the Russian government considers useful for them; it doesn’t mean that the person in question is willingly or knowingly assisting Russia in any capacity. It could simply mean that Russia thinks that the person could be useful to their goals at some point.

Exhibit A: Donald Trump.

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Anonymous Coward says:

Re: Re: Re:5 Re:

It was on world wide media for at least a week when or around the time of the sale. This was during the end of Obama’s presidency if you could legally call it that. I can’t understand what you people were doing to not know of it or you are playing it up as if I need to prove it as in a court of law. One, Go search for it yourselves. Two, I don’t know if any records or media is still online about it. Three, I already know it to be a fact. I am not doing your homework for you. Four, be as ignorant as you want. Five, I could care least of all for if you were sleeping all week or went to Mars over your week off, that’s your loss. You got to watch what’s going on in the world. Not just hang out playing tetris and techdirt all the time!

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Anonymous Coward says:

Re: Re: Re:5 Re:

Stone has this fantasy of being a judge. Newman on Seinfeld always wanted to be a banker. He could never be a banker. And long story short.. botched a fatal leap from top of building and ends up pleading out a traffic ticket before a judge depressed because he could never be a banker. Its going to be allright Stone.

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Anonymous Coward says:

Re: Re: Re:5 Re:

Hate to add facts to this nonsense troll attempt, but sure, let’s take a look:

https://www.thebalance.com/us-debt-by-president-by-dollar-and-percent-3306296

Your claim, that Obama put America in more debt than all presidents before him combined is not supported by the facts. And, for what it’s worth, Trump’s pace is above and beyond Obama’s. But, hey, who needs facts?

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Stephen T. Stone (profile) says:

Re: Re: Re:7

Not a “fact”, but a willful misreading of actual facts. Even if the national debt was higher at the end of Obama’s two terms than it was at any point before Obama took office, Obama alone didn’t generate the entirety of the national debt. I can make the same willful misreading by saying “Donald Trump put the United States in more debt than all presidents before him combined”. How do you plan to prove me wrong when — according to your own logic — I’m merely stating a fact?

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bhull242 (profile) says:

Re: Re: Re:3 Re:

To reiterate, I will not speculate on matters of intent like potential malice at this stage. It is completely and utterly irrelevant to whether or not this is defamation.

It’s not about whether or not I could see malice; I just don’t care because Gabbard decided to sue over it, and Clinton no longer has any public office or other major occupation for me to really care about her at all. Essentially, I have no reason to bother looking for intent. Additionally, malicious characterizations of political candidates happen all the time. That’s the price we pay for free speech, and I’m okay with that.

But since you brought it up, I’ll just say that people say not-so-nice things about political candidates and people in public office in interviews “over the airwaves” for non-malicious reasons all the time. And the “as quickly as possible” thing doesn’t appear to be evident, and again, there are perfectly plausible non-malicious reasons for that, too.

And another reason I won’t speculate on intent is Hanlon’s Razor: never attribute to malice what can equally be attributed to incompetence. I see no reason why malice is any more likely than any other possible motive. And since it ultimately doesn’t change anything IMO, I feel no need to dig further.

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That One Guy (profile) says:

'Thanks for the campaign material.'

‘Tulsi Gabbard has, multiple times, abused the court system for personal gain’ strikes me as a great way for any political opponents(well, almost any…) to use against her to show she is not fit for office, and certainly not fit for president.

She may be playing up to gullible fools with these lawsuits but she’s also providing plenty of ammo to be used against her in the process, along with providing perfect examples of why she should not be given the power of president.

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Thad (profile) says:

Re: 'Thanks for the campaign material.'

‘Tulsi Gabbard has, multiple times, abused the court system for personal gain’ strikes me as a great way for any political opponents(well, almost any…) to use against her to show she is not fit for office, and certainly not fit for president.

If you think any other presidential candidate would benefit from reminding people that Tulsi Gabbard exists, then you haven’t been following the race. Her most favorable recent poll shows her at 3%. With a 3% margin of error.

Tulsi Gabbard is not going to be the Democratic nominee. She’s filed this lawsuit to get attention — and it’s worked insofar as people are talking about her again, but it’s still not going to get her any delegates in Iowa.

Attention is what she wants; there’s absolutely no benefit for any other candidate in the race to give it to her — except possibly other bottom-tier candidates like Delaney, Bennet, and Patrick, who might be able to get some headlines of their own by responding to this.

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Anonymous Coward says:

Re: Re: 'Thanks for the campaign material.'

You probably never heard of Pat Paulsen. In the 1960s, 70s and I believe up into the 80s he used to run every four years. I think he was a comedian, I’m not sure. He never had a chance, but there he was every Presidential election. America loves an underdog. Don’t try to fool them by telling them they don’t.

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bhull242 (profile) says:

Why Goddard?

I have to ask, and maybe it’s obvious with full context, but why is it assumed that the “somebody” HC is referring to is Goddard? Is she the only female besides Warren who was running in the Democratic primary at the time of the podcast? (I’m pretty sure there were others last fall.) Is there something else that makes it clear that Goddard is the one being referred to? What am I missing?

I mean, it ultimately doesn’t matter that much, since the lawsuit has so many other issues that it has no chance of succeeding anyways, but I still want to know.

Stephen T. Stone (profile) says:

Re:

Per the Vox article about Clinton’s comments:

Gabbard is a combat veteran and US Army reservist who has made issues of war and peace the central plank of her campaign platform. She has sold herself as a non-interventionist, a critic of “regime change” and “endless war.” In practice, though, Gabbard’s record doesn’t fully bear this stance out. She has long spoken favorably about American use of force when it’s not directed at toppling dictators, arguing that the US needs to refocus on fighting Islamist terrorists.

As far back as 2015, she has been advocating that the US work with Syrian President Bashar al-Assad — and his chief ally, Russia — in fighting ISIS and extremist factions among the Syrian rebels. This view has led her to take a remarkably pro-Russia stance on the Syria conflict, even when it clashes with the policies of her own party’s president and standard-bearer.

In January 2017, she traveled to Syria and met with Assad personally, catching the Democratic leadership in Congress off-guard. After returning to the US, she went on CNN and parroted the regime’s line that there was “no difference” between the mainstream anti-Assad rebels and ISIS. At last week’s Democratic debate, she described the Turkish invasion of northeastern Syria, which is controlled by America’s Kurdish allies, as “yet another negative consequence of the regime change war we’ve been waging in Syria” — a false description of what happened that seemed to let Trump’s troop withdrawal off the hook.

The Kremlin may be taking notice. One recent analysis from the Alliance for Securing Democracy (an electoral interference monitoring group) found that Russian state media has given Gabbard disproportionate coverage relative to her poll numbers. It also documented Twitter bots that appear to be of Russian origin being active on her behalf. That said, the extent to which Russian bots are working to promote Gabbard is contested, and it’s not clear that Clinton is justified in saying that Gabbard is Russia’s favorite.

James Burkhardt (profile) says:

Re: Why Goddard?

While I am unsure how Goddard is, Most people think Hilary was refering to Tulsi Gabbard. This is a contextual thing where Hilary didn’t say who she was talking about, but context suggests an answer. Gabbard has the history that suggests she might make a third-party bid in a way Warren or Klobuchar would not. Gabbard has a few similar policy positions to Jill Stien that relate to Russia, and Russian influence efforts put a lot behind Stein in 2016 which seemed to affect swing states toward trump. 5 days before, the NYT did a whole bit on how Gabbard had a strange upswing in support for Gabbard in right-wing and russian media. And Clinton’s spokesperson gave a ‘If the shoe fits’ answer when the question came up.

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Dan says:

"asset" isn't a statement of fact?

A Russian asset doesn’t mean someone who is purposefully doing the bidding of the Russian government. That would be a Russian agent. Simply saying someone is an asset to the Russians, means that they’re valuable in some way to the Russians, and not that the Russians’ [sic] control them.

Methinks Mike doth protest too much. An asset is something the asset-holder owns, or in which they have some posessory interest. As such, the statement (not explicitly made, but implied) "Tulsi Gabbard is a Russian asset" means, not only that she benefits Russia in some way, but also that Russia in some way, and to some degree, owns her. There’s a lot wrong with this lawsuit, but this claim actually has some validity.

Dan says:

Re: Re: "asset" isn't a statement of fact?

Yes, words can have multiple meanings, though I still don’t think Mike’s (and your, and others’) view of "asset" (to wit, something beneficial, even though the holder of that "asset" has no ownership, possession, or control of that "asset") is the most natural, or even a particularly reasonable, understanding of that term. But even if it is, it doesn’t preclude the other. And if a reasonable listener could understand "asset" in the way I propose, that claim’s going to survive a motion to dismiss (at least as far as that’s the concern).

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bhull242 (profile) says:

Re: Re: Re: "asset" isn't a statement of fact?

Actually, you have it backwards. If a statement is capable of multiple meanings, at least one of which is non-defamatory, then the statement is not considered defamation. And this is true even in a motion to dismiss.

I suppose we could disagree on how natural you think it is, but in context, that does appear to be how she meant the term.

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Stephen T. Stone (profile) says:

Re: Re: Re:7

Courts don’t tend to make “anomalous” decisions vis-á-vis defamation. The law is generally clear and the facts of this case don’t swing in Gabbard’s favor. If her suit survives a motion to dismiss (and that assumes she doesn’t withdraw it first), I’ll be sincerely surprised.

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bhull242 (profile) says:

Re: Re: Re:7 "asset" isn't a statement of

I mean, you’re not completely wrong, but anomalous decisions are very rare—especially more recently—when dealing with claims of defamation, even moreso when not dealing with §230 and the plaintiff is clearly a public figure. Also, that’s an extremely weak reason; you’re essentially saying that you’re at least partially banking on the (slim) possibility that the judge will rule incorrectly on a motion to dismiss in this case.

I know it’s probably not what you intended, but it sounds an awful lot like you’re admitting that Gabbard doesn’t actually have a case here.

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Stephen T. Stone (profile) says:

Re:

No one has yet given me a reason to believe Russia somehow “owns” Gabbard. But Russia can still see her as an asset despite that lack of “ownership”. Gabbard’s statements about American needing to work with Assad (a Russian ally), along with her statements conflating anti-Assad rebels with ISIS, help Russian interests. Even if she doesn’t intend to help Russian interests, her doing so still makes her a Russian asset.

That One Guy (profile) says:

Re: Not necessarily

Consider a political campaign.

In one group you’ve got the official people running it, taking orders from those in charge and being paid by them.

In another group you have people who support the candidate for their own reasons who are doing what they can to get them elected but aren’t being paid or taking orders from the official campaign.

Despite the fact that the second group isn’t ‘owned’ by the official group, neither getting money or taking orders from them you could still argue that they are an ‘asset’ of the overall campaign as they are assisting it, helping it’s goals.

‘Asset’ can be used to mean a physical property where there is demonstrable ownership, but it can also be used to mean things that provide a benefit but that cannot really be ‘owned’, like trust, goodwill or reputation, something that I imagine many a business would agree with given how vital those can be.

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bhull242 (profile) says:

Re: isn't or hasn't Google be operating ....

No. That’s not at all what that means. “Color of law” means that you have personal authority to enforce the law. Government agents, LEOs, and government inspectors would operate under “color of law”, but following a consent decree or court ruling is not.

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JoeCool (profile) says:

Maybe... maybe not

Of course, Dunne and Terzian also filed the silly case against Google, so I’m guessing they don’t much care about their own reputation as lawyers.

Or maybe they like a reputation of being the ones to go to when you have more money than brains and want to file nuisance suits. They’re crying all the way to the bank.

mkmkmkmk (profile) says:

Lawyers Not Caring About Reputations

Maybe they will be crying to the bank, maybe somewhere else. …

There was an article on LawFuel.com, The Big Trouble at Rudy Giuliani’s at the Law Firm Hired by Rudy Giuliani…..excerpts

"The former partner’s view is that Pierce Bainbridge is the product of “smoke and mirrors” and a “financial house of cards.”

"Team Pierce being beset by a cocktail of accusations of corruption, financial fraud, misogyny, discrimination, substance abuse, lies under oath and more, much of which is documented."

It appears to be an interesting place.

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joseph grimwold says:

Clinton had one goal and one goal only, to smear Tulsi Gabbard’s name and to make people associate her with Russia, thus going a long way in destroying Gabbard’s reputation and career.
So you can argue about the details of what Clinton did or didn’t say, but we all know what her goal was. Gabbard will now always be associated with Russia in the minds of a good portion of the American public.
To say that this lawsuit is "silly" is absurd. My guess is you didn’t like Gabbard’s campaign in the first place.
Hillary Clinton is a sick vengeful person, out to destroy Tulsi Gabbard for stepping down from Vice Chair of the DNC in order to back Sanders in the last primary season. Poor Hillary.

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Stephen T. Stone (profile) says:

Re:

Gabbard will now always be associated with Russia in the minds of a good portion of the American public.

Not nearly as big a portion as you think. Lots of people on both “sides” of the American political “aisle” — Republicans moreso than Democrats, granted — have long stopped treating Hillary Clinton as someone whose opinion is worth a damn. That attitude tends to spread further as time goes on, thanks in part to her 2016 campaign and statements such as the ones she made about Tulsi Gabbard. Only people who take what she says seriously will care about her calling someone a “Russian asset”. Everyone else will either ignore or mock those remarks.

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Anonymous Coward says:

Re: Re:

I feel that exact notion. There are a lot of techdirters way left on this one. I think people are tired of the democratic party chasing itself around biting its own tails. I think the government knows there are a lot of retirements on the close horizon. I think its ready to get some new blood into circulation.

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Anonymous Coward says:

Smears and law suits

The statement by HRC is a political smear. Gabbard is a non-interventionist and wants to work with other nations via diplomacy rather than killing people with weaponry. Russia would like this, thus the coverage by their media. Gabbard is being smeared or ignored by much of the US establishment and its media wing because her policies would have a negative effect on the military industrial complex. However, much of the US population, across the political spectrum, are sick of war, and the insane military budget makes no sense. The US military budget is building schools and hospitals in Afghanistan whilst no one is fixing the plumbing in Flint.

As for the defamation case, it is obviously a political act; advertising via a court case. I’m sure the lawyers know that the case is hopeless, but are happy to be paid for their advertising services.

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Anonymous Coward says:

A "Silly Attention Seeking lawsuit" certainly got your attention. For something so insignificant as you try to make it out to be, you certainly spent a lot of time responding. She has an agenda, and so do you. If she was unimportant, you would just ignore her, but the effort you put into this says she is anything but unimportant.

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Stephen T. Stone (profile) says:

Re: Re: Re:

I for one do not concede her lawsuit is a ploy

Then explain how the complaint will survive beyond the first motion to dimiss when (as the article points out) First Amendment protections give great leeway to political speech and Clinton herself made statements of fact about Russia instead of Gabbard herself.

The lawsuit is a desperate cry for attention from a candidate who will most likely drop out of the race after Super Tuesday, if not sooner. Anyone who believes otherwise is wrong on both the facts and the law. But hey, keep pounding the table and yelling if that makes you feel better.

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Anonymous Coward says:

Re: Re: Re:

Well it really didn’t hurt Shane McConkey when he skied naked down the slopes of Vail, Co in front of huge crowds, but it was funny. But Ms Gabbard transcends to a position of esteem and rightfully so. She has earned her way there and I believe with the right people around her, she could lead our country back into the world’s good graces.

bhull242 (profile) says:

Re: Re: Re: Re:

Now I’m curious. Is there anything, anything at all, that Gabbard could possibly do—even if it’s completely ridiculous and implausible—that would diminish your opinion of her?

And for the record, my point was that suing someone for defamation is not a good way to gain good publicity, particularly among those who don’t already back her. Not all publicity is good publicity.

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