Billy Mitchell Survives Anti-SLAPP Motion From Twin Galaxies A Second Time

from the slapp-and-tickle dept

The Billy Mitchell and Twin Galaxies saga rolls on, it seems. Mitchell has made it onto our pages several times in the past, most recently over a lawsuit filed against gaming record keepers Twin Galaxies over its decision to un-award his high score record for Donkey Kong on allegations he achieved it on an emulator instead of an official cabinet. The suit is for defamation and Twin Galaxies initially tried to get the case tossed on anti-SLAPP grounds, but the court denied that request under the notion that Mitchell only has to show “minimal merit” in the overall case to defeat the anti-SLAPP motion.

And now, on appeal, California’s Second Appellate court has affirmed that ruling, again on “minimal merit” grounds. You can read the entire ruling embedded below, though I warn you that there are many pages dedicated to the back and forth between Mitchell and Twin Galaxies over a video game record, so you may come away with sore eyebrows from rolling your eyes so hard at all of this. There is also a metric ton of context as to how the court is supposed to apply the anti-SLAPP statute. Go nerd out if you like, but the whole ruling boils down to this:

The parties agree, as do we, that Mitchell’s claims for defamation and false light arise from protected activity and meet the first prong of the anti-SLAPP analysis. We therefore focus on the second prong: whether Mitchell has shown a probability of prevailing on his claims. Twin Galaxies contends Mitchell has not provided sufficient evidence to show the challenged statement was false or it made the statement with actual malice. We are compelled by the standard of review, however, to conclude Mitchell has demonstrated the requisite “minimal merit” to his claims to defeat Twin Galaxies’ anti-SLAPP motion.

It’s incredibly important in a case like this to keep that standard in mind. And, though some folks, including some at Techdirt, don’t necessarily agree with me, I think I agree with the court’s ruling on this. Given the minimal merit standard, it seems the court is simply reluctant to not let this proceed to trial.

And, as I stated in the last post, to discovery. And it’s going to be in discovery where all of this gets far more interesting. Because at trial, there will be no minimal merit standard for the claim of defamation. Instead, Mitchell is going to have to prove two things: that the accusation of cheating is false and that Twin Galaxies made that claim not out of error, but out of “actual malice”.

And that is going to be an extremely tall hurdle over which Mitchell needs to jump.

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Comments on “Billy Mitchell Survives Anti-SLAPP Motion From Twin Galaxies A Second Time”

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Mike Masnick (profile) says:

Count me among those at Techdirt who think this ruling is wrong

Tim, I think both you and the judges are misreading/misunderstanding both defamation law and California’s anti-SLAPP law. The cited interpretation of actual malice is misleading and I’m shocked that the court thought that a prima facie case of actual malice was made.

Under this kind of ruling, California’s anti-SLAPP law (considered more or less the gold standard) is a dead letter. Under this kind of ruling, anyone can get around an anti-SLAPP claim by simply insisting that what the defendant said was untrue and that not enough investigation was done. Yet, that’s not the actual malice standard at all.

And discovery tends not to be where things get more interesting. It’s where things get stupidly expensive, leading most cases to try to settle. That’s part of the reason why anti-SLAPP laws like California’s are so damn important. Because if you can route around them, as was done in this case, it enables the ridiculous expenses of SLAPP suits to move forward — especially in cases like this where even the judges find the actual evidence of defamation underwhelming.

sumgai (profile) says:

Re: Count me among those at Techdirt who think this ruling is wr

Let me start by saying that I’ve not read the entire opinion.

Now let me state that if "minimal merit" is indeed the letter of the law, as envisioned by the legislature and not made out of whole cloth by the court(s) (as in for example, QI), then BM has met the qualifying factor(s). I’ll not debate the intent of the legislature here, that’s for the courts to decide. (And the legislature to go back and fix, if they don’t like the court decisions.) What I do want to point out is that BM has solid evidence of something done by TG, and that is the recission of his former record-holder status. What the court is being asked to decide is whether or not that was done out of malice, or organically out of a desire for consistency with TG’s rules.

This differs greatly from the vast swath of "defamation" cases because in this instance, an award was made first, and rescinded only some time later. Whereas in most cases, the defamation claim is based on something said that got the offended person’s dander up, but the alleged offending statement was just that – a statement, whether of fact or opinion, and nothing more. IOW, no award by a competent body was made and then taken away, as was done to BM. He was held in (high?) esteem by his community, then he was brought low by that very same outfit. I view that activity as quite different from an expression of fact/opinion, usually displayed in some form of media. I also argue that such activity is a demonstrable prima facie case of defamation, well worthy of a court’s investigation and findings.

And no, for the reasons above, this does not mean that every SLAPP suit will automatically be continued, as if the anti-SLAPP law was non-existent. I’m not familiar with the California statute governing this, nor do I want to be familiar with it, but I’d bet that it’s filled with a lot more detail that will ultimately affect the BM/TG case in ways we can only imagine.

Rico R. (profile) says:

Re: Re: Count me among those at Techdirt who think this ruling i

I do think that not every SLAPP will be automatically continued because of this case, but even if the facts merit it here, the fact that this case is precedential (based on the "Certified for Publication" language at the bottom of the document) should be concerning. This is another example of a lawsuit where the facts specific to the case may be beneficial for a particular outcome to play out, but in the process creates case law that’s bad for everyone.

TKnarr (profile) says:

Re: Re: Count me among those at Techdirt who think this ruling i

"minimal merit" is a construct of the courts, but not outside their authority to set. The law speaks of "probability of success" as the standard the plaintiff has to meet to overcome an anti-SLAPP motion. "minimal merit" is the court’s definition of the standard needed to meet the "probability of success" requirement. In California that standard isn’t just the "evidence sufficient that, if believed, would sustain the plaintiff’s case" but "evidence sufficient to overcome any defenses to the claims". The actual malice standard puts a very high bar on the evidence needed to overcome it, in this case evidence existing at the time of the investigation strong enough to lead a reasonable person to doubt it’s conclusions. Even if the investigation was in fact lacking, if evidence of that wasn’t known to TG at the time they can’t be said to have been acting with with reckless disregard for the truth.

Rico R. (profile) says:

Re: Count me among those at Techdirt who think this ruling is wr

I completely agree, Mike! I’m not sure how different the standard and/or cost is for an anti-SLAPP motion compared to a motion to dismiss under 12(b)6 of the Federal Rules of Civil Procedure, but simply saying "This statement is false and they didn’t do enough investigation to confirm that it was false" sounds an awful lot like a mere legal conclusion and not a statement of fact. Under the motion to dismiss standard, that’s below the standard and the case should be dismissed.

And speaking of cost, I also think discovery will make things costly and can cause some parties to settle. Very few cases go to trial these days, so simply getting a full-fledged ruling on the merits is not always a given. And when the cases do ultimately settle, there’s no guarantee that the same result would be rendered had the case gone to trial. The ComicMix v. Dr. Seuss Enterprises case comes to mind in that regard: Even though the judge wanted a jury to hear whether or not it met all the requirements for substantial similarity and therefore copyright infringement, the settlement reached by the parties also required ComicMix to more or less admit that Oh, The Places You’ll Boldly Go is an infringing work. They might have even had to pay a pretty penny to Dr. Seuss for a book that was never sold!

But I digress. Here, an entity like Twin Galaxies might have the legal resources to still defend the lawsuit on the merits throughout the appeals process, but the average, everyday citizen does not. When they are the defendants, it may be more financially feasible to chill their speech and pay the plaintiff in a settlement than it is to defend their rights in court. When that happens, everyone loses. The first amendment rights are weakened for everyone, and we as a society are deprived of someone else’s otherwise lawful speech. If California, which has the gold standard anti-SLAPP provision, keeps the precedent on the books, that law is essentially dead for everyone in California, which is good for no one (regardless of where they live).

Tanner Andrews (profile) says:

Re: Re: Count me among those at Techdirt who think this ruling i

simply saying "This statement is false and they didn’t do enough investigation to confirm that it was false"

The first part is beyond what you often see in SLAPP suits. If they identify a specific statement as false, they have gotten over the first hurdle because many claimants do not identify the false statement.

As for “enough investigation”, well, that is not usually the standard. Times v. Sullivan malice requires knowledge of falsity or reckless disregard.

So, simply stating that “this statement is false and defendant knew it was false” might get past the motion. You might want a few more facts to show reckless disregard, e.g. def had obtained but ignored specific information, but even that is not going to require you to plead War and Peace.

Lostinlodos (profile) says:

Re: Re: Re: Count me among those at Techdirt who think this ruli

I’d say by understanding he’s guilty of the acts claimed: but the very fact, and it is a fact, that the concern, MAME,
Is used in commercial boards… shifts the burden to the ratings organisation. I think the guy is the king of arse output, the scat rat. But he deserves this cjanc to defend his “honour” dispute his POS outward appearance.

That Anonymous Coward (profile) says:

rubs between his eyes
Drought, wildfires, more lead tainted water, etc. etc. etc. /Yul Brenner

And If he has a high score on a video game recognized by some group of assholes I’ve never heard of is worthy of a court case.

I know this case will end up being important because its rinky dink stupid cases like this that end up making shitty precedents that the 9th Circuit will then claim mean something entierly different in moon law & manage to throw everything into chaos while we wait for reversal

… but…


You could provide proof you didn’t do it on an emulator and make them eat their words & get a pretty pretty press release.
Instead you are going to make a court force them to put your record back… at the cost of bankrupting them so they will no longer have a list of high score winners and your sad little life will end up being as useless as your penis has been.

I’m sure the 10 whole people in the world who give a shit about your score will be impressed… how about you do a speed run of death valley in the summer with no support team for your next trick sparky. Your 15 minutes was up a long time ago, stop trying to relive it and do something to benefit society… self removal seems to be the only way you could make the world a better place… get on that.

What, I tell you I am a sociopath and then you are all shocked that I behave this way?
He has to value to me as he is, if he tried death valley in summer with no support team he might get a nice Darwin Award and then his value to me goes up as humor.

Lostinlodos (profile) says:

Re: Re:


You’re quite mistaken on that.
You don’t care.
Ultimately I don’t care either. Other than we have a fraud OR a rigged organisation that takes out its disllike of someone by breaking its own rules.

This comment has been deemed insightful by the community.
basstabs says:

The problems of a tech-illiterate judicial system.

The analysis of actual malice is somewhat disturbing. Who cares about witnesses when you have a technical analysis that Mitchell is incapable of disputing? The videos were either from MAME, or the tapes are modified. Mitchell has provided no footage which can pass the technical examination. Therefore, Mitchell has zero documentation to support his scores under Twin Galaxies’ rules. Twin Galaxies (rightly) is of the opinion that eyewitness accounts are irrelevant in the face of hard data and science that supports their claims.

For them to act with actual malice in the form of reckless disregard for the veracity of their statements, then it must be the case that they disregarded Mitchell’s conspiracy theory that the person who provided the tapes was out to get him. That’s the only defense he has which actually has any bearing on discounting TG’s findings. However, the judicial analysis doesn’t really explain why it’s "reckless disregard" for TG to not credit the outlandish conspiracy theory that someone with an axe to grind against Billy Mitchell managed to successfully alter the tapes in a way that successfully fulfilled his "master plan," but was also undetectable to a team performing an in-depth frame-by-frame analysis. Even if this was somehow managed, it should be clear to any reasonable observer that TG being fooled by an incredibly complex deception is not acting in actual malice.

By this logic, every news anchor not working for newsmax is susceptible to a defamation claim now for calling bullshit on the Kraken lawsuits. It didn’t matter that they had data and audits to back up their stance: "An inference of actual malice may be made from their failure to investigate and reliance on biased sources." They didn’t go out and interview every bogus person who filed a bogus affidavit, or interview Trump and co.’s own "experts." They only relied on biased sources who were against Trump’s claims! Sue the pants off them!

This comment has been deemed insightful by the community.
basstabs says:

Re: Re: The problems of a tech-illiterate judicial system.

He doesn’t need to provide it to the court at this stage, but for it to even be feasible to rule that TG’s statement was made with actual malice, he needs to have provided it (or offered to provide it and they rejected it) to TG prior to the court case even beginning. You can’t defame someone if they only disprove your statements during the defamation case and not before: if all of the evidence available to you at the time of making your statement led you to your conclusions honestly, then even if they are false, they do not constitute defamation. He has never led TG to believe in any way that their technical analysis is flawed. He has only ever offered a conspiracy theory that would be consistent with him not cheating, but clearly TG didn’t find that credible and therefore reached the only reasonable conclusion. That’s not actual malice, which is the standard Mitchell needs to meet.

Even just considering the court case in a vacuum, you’re right that he does not need to prove the veracity of his statements at this stage. But he does need to provide an argument which could be successful at a later stage of the trial and would prove that TG acted out of reckless disregard for the truth.

If Mitchell were to say, "I can prove that the tapes are faked using evidence I will bring in court" or "I can prove that the tapes are legit and not recorded on MAME during the trial," then according to the standards of the court, evidence supporting the plaintiff is assumed to be true for the basis of anti-SLAPP proceedings. That would be fine: it’s an argument that could logically lead to the conclusion that TG willfully disregarded evidence refuting their claims.

But Mitchell is not claiming this at all, nor is he asserting that he can do so. At no point was he able to cast doubt on the accuracy of TG’s technical findings prior to publication, and he has made no indication that that will change if this goes to trial. (Even if it did, as I pointed out before, only providing that evidence for the first time in court should exculpate TG from defamation, as they did not have access to that information at the time of their decision.) He provides two arguments, both of which suck: eyewitnesses back him up, and the aforementioned conspiracy theory.

The conspiracy theory is the better of the two, ironically, because if he could prove it, it might actually prove actual malice. But it’s missing the crucial part where Mitchell even begins to outline his strategy for how he will prove it, or even argues that he will do so in court. He simply offers it up as an outlandish suggestion technically consistent with that facts: that is not an argument. He doesn’t even claim that he can or will attempt to prove it. Crucially, he offers no explanation as to why TG should have believed it either, which would be necessary for a ruling of actual malice. After all, TG thoroughly analyzed the tapes frame-by-frame and saw no signs of edits or cutting consistent with this theory, so they have reason to believe that they are not part of an elaborate hit job on Billy Mitchell. Therefore the court should find that he cannot succeed with this argument at a later stage in the trial because Mitchell himself has not claimed he will prove it. He merely states that it is possible, which is not sufficient.

The eyewitness accounts are completely irrelevant because of the nature of TG’s evidence: all ten children claim that none of them ate the cookie, but there’s a cookie missing. Sure, MAYBE a mouse came out and ate it while none of the children noticed and left no trace, but it’s not reckless disregard for the truth to think that that’s bullshit and that at least one of the children is lying. TG doesn’t need to interview them because nothing they say has any relevancy to whether or not TG’s technical analysis of the tapes is correct, so it’s not actual malice for them not to speak to these people. This is an argument that can’t possibly succeed. (Well, it can, because judges say the darndest things, but it should not.)

Anonymous Coward says:

Re: Re: Re: The problems of a tech-illiterate judicial system.

As pointed outabove, if his highly incredible conspiracy theory about the tapes being stolen and replaced with forgeries was to be proven, it would clear TG of malice here, since they would be victims of the fraud. If not, then they rightly acted on available evidence of his fraud. Either way they win. But that’s not why you bring SLAPP suits in the first place. You intend to make it impossible for those in the right to financially sustain telling the truth.

Lostinlodos (profile) says:

Re: Re: Re:2 The problems of a tech-illiterate judicial syste


I’ll say this to make a few things clear and move on.
All coming from a person with a LONG history in gaming tech (Guide JamPro/JamPro1/LostInLoDos/GuideLowDos)

There are 4 types of acceptable arcade units in general score recording. Outside of any one group:company.

Reproduction (clone of original).
Multi-format base chip. A multi-boot interpreter chip used with a shared CPU.

And finally hardware repo emulation multi rom
Often a heavily modified variant of the NeoGeo board with soft-cpu emulation and hardware MAME implementation.

If, IF, if, if he used a legit machine it’s one of these.
Despite prior comments to the contrary: this is a very small very tight well connected group.

I barely qualify as an insider and I’ll say this much.
Give me a date and a location. (And 4 weeks)
I’ll tell you who owned the machine, where it is now, and who had it in between! For those in the remaining arcade and arcade collectors industries… it really is that easy. And that small and limited.

The only way he walks away better off is with the machine/board.

No offence to Tim but this is not a standard slapp suite. Only the filer knows the truth.

But again, put up or sod off!
If legitimate all he needs to do is call me, or any other arcade collector. This is where it is: or where it was last reported/destroyed.

Ragnarredbeard says:

I see this differently than Techdirt

I agree with the court turning down the Anti-SLAPP motion, not because I think Mitchell has a chance in hell of winning, but because I think the court wants to get it over with and let Mitchell look like the fool he is in public court.

Think about it; the court upholds the Anti-SLAPP motion, Mitchell comes back later with another lawsuit. Court denies the motion, forces Mitchell to appear in court where he will clown himself. He loses with prejudice and never shows his ugly mug, haircut, and tie again.

Its 4D judicial chess.

This comment has been deemed insightful by the community.
James Burkhardt (profile) says:

Re: I see this differently than Techdirt

After Twin Galaxies is bankrupted by the discovery process. The whole point of a SLAPP law is to laugh someone out of the courtroom early, rather than go to the expensive discovery process. He can lose with prejudice at this stage as well.

There is no 4d chess benefit that comes out of this.

Lostinlodos (profile) says:

The consequences are major

It may not be front page news, but along with speed runs, high score records make major bank for those that reach there. The award is the equivalent of a degree.

It’s like nascar in the sponsorship idea. They get free equipment. Paid endorsements. Commercial advertising.

To be called out as a fraud is very dangerous in a community where multi-thousand point Scot’s are sorted by 1 or 2 points difference. Where completion times can be measured in nanoseconds.

A score can be tossed just by the date of the cartridge or arcade board. The rom (chip) revision. Etc.

This is a small but extremely expensive subset of the game community. And the top level is extremely profitable for all involved.

So there’s multiple issues here.
A) what is meant by emulation. Is it running game A rom on board B?
Or is it running game rom c on a computer via software emulation.

The latter is absolutely taboo in this context.
The former. Running an Atari chip from a stand-alone unit in an Atari made multi game unit machine is generally acceptable.

Running that rom chip in a 3rd party reproduction condensed board, frowned upon.

All is technically a degree of emulation, but misusing the term could break the career of a gamer.
Considering that two types are par for the corse in an industry that still depends on some 1970s equipment that can’t be original-parts replaced; the term carries heavy consequences.

So ultimately, saying emulation meaning anything other than software level reproduction is absolutely an attack on the gamer.
One with disastrous consequences.
Financial consequences!

You don’t need to agree with the industry and it’s multi-million-dollar level of elites. I don’t.
But this is more than a simple “he bad man” statement.

I just hope he has proof, for his sake. Because this went from a regional dispute that could have been handled within the industry to mainstream news with the lawsuit.

He doesn’t need to just convince the jury/court now. He needs to convince every gamer, every game company, every peripheral manufacturer…everyone!

Lostinlodos (profile) says:

Re: Re:

Don’t get me wrong. I don’t know. And I don’t defend it without knowing. As I said, I hope for his sake. He’s got one hell of an uphill battle because despite what Anonymous Coward thinks, this is a very powerful and influential group, as a whole.

And a very skilled one.

As far as I can tell:
There IS the possibility this was an original rom used in a multi-unit board. Which would technically make it legitimate(ish).
There’s real commercial boards that use MAME too. Again still, legitimate(ish).

But produce the rom and board or sod off.

It’s that simple.

Anonymous Coward says:

Re: Re: Re:

The stuff Mitchell used is in no way "legit".

It’s Mame on a PC Emulator which has quicksave options. Walk a bit forward, save, walk forward, make mistake, quickload. walk forward etc.

Repeat until you have a perfect score.

it was proved because Mame draws the donkey kong frames VERY slightly differently to the original arcade board. So he was 100% cheating.

Lostinlodos (profile) says:

Re: Re: Re: Re:

For the most part, I’m with you.

I just see that there is a possibility. And if there is any potential, I believe in innocent until proven guilty.

See, the right way to do this would have been:
This is the location of the machine, come verify it.
He didn’t do that. So now we all get to watch him prove he’s a simple idiot (by not taking the easy route) that is good at games… or a fraud.

basstabs says:

Re: Re: Re:2 Re:

Billy Mitchell has been proven guilty. An in-depth technical analysis proved that the evidence of some of his records was performed outside the scope of the established rules. Mitchell is now "appealing" through the court system, which is part of the job of the courts, so that’s fine. But he has been investigated and found guilty by the authority in charge of adjudicating such disputes. Now, you or he can argue that there were flaws in this investigation, and that’s what Mitchell is doing through this lawsuit, but he’s still been proven guilty. Much like a convicted felon who is appealing and gets their chance to argue why their trial should be overturned, they were still proven guilty.

It’s been over a decade since the scores were allegedly set, there’s no way anyone knows where the machine is, and even if they do, there’s no chance there’s a chain of custody ensuring that it’s in exactly the state it was left after the records were set.

Lostinlodos (profile) says:

Re: Re: Re:3 Re:

I’m no advocate, here.

More pointing out that this is beyond the simple ‘he say
Me dumdum’. This is beyond public participation issues.

These are multi-million-dollar contracts.
So have at it! Exhaust the options he has.

But the only way he can walk away clean from this, not just cleared, is to produce the actual machine. The chain of custody, as you state. The whole thing that he could have presented day one and didn’t.
There are very specific setups that would have proved his innocence. Or at least plausible lack of guilt.

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