RFK Jr. Abusing The Courts To Harass Pseudonymous Blogger For Pointing Out RFK Spoke At German Event Organized By Far Right Extremists

from the how-do-you-say-streisand-effect-in-german? dept

How big of an embarrassment is Robert F. Kennedy Jr.? Beyond all the anti-vax nonsense, he filed a ridiculously embarrassing lawsuit against Facebook because he was fact checked. The case was laughed out of court earlier this year. And now he’s trying to abuse the courts to out a pseudonymous blogger for writing about how RFK Jr. spoke at a German rally last year that appeared to be organized by folks with ties to rightwing extremists.

Paul Levy from Public Citizen, who is trying to stop RFK from succeeding in this bullshit effort, has a blog post with all of the details.

Our latest effort to defend the right to speak anonymously about issues of public concern brings us up against Robert F. Kennedy Jr.

Last summer, Kennedy spoke at an August 29 rally convened by the German far right to protest government restrictions aimed at corralling the COVID pandemic. Kennedy was, apparently, the third choice speaker, after appeals from a rightwing group called Querdenken to Donald Trump and Vladimir Putin went unheeded.  But when this group learned that Kennedy was coming to Germany for other reasons, it issued a public invitation and he responded. The German right waxed rhapsodic about the way in which Kennedy?s presence was lending legitimacy to their activity.

The rally and his speech were widely covered in the mainstream media, which reported that his rally was heavily attended by neo-Nazis  and that a variety of antisemitic and neo-Nazi factions  had been involved in organizing the event. Kennedy was infuriated by this coverage of the audience to whom he had become connected by speaking at the rally.  His position is that any neo-Nazis were at some other rally on the same day, and that Querdenken is a fine group unsullied by neo-Nazi or anti-Semitic ties. Our expert witness says otherwise.

Kennedy took no action against the New York Times, Wall Street Journal and others who took note of these connections. Instead, he directed his ire at what, I assume, he viewed as a defenseless target: DowneastDem, an otherwise obscure blogger on the Daily Kos who generally writes about German and Maine politics. This blogger wrote a post entitled ?Anti-Vaxxer RFK JR. joins neo-Nazis in massive Berlin ‘Anti-Corona’ Protest,? linking in turn to an eyewitness account in a major Berlin newspaper whose sub-headline mentioned the participation of neo-Nazis (English translation here).  Kennedy responded by having a lawyer post a heated comment in the form of an open letter, denying the accuracy of the blog post and demanding that it be taken down immediately.

As Levy notes, the mere denial by Kennedy’s lawyer wasn’t enough — and Kennedy hired the pre-eminent law firm these days for trying to shut people up, Boies Schiller Flexner. As you may recall, the “Boies” in Boies Schiller Flexner is David Boies, who famously was deeply involved in trying to silence Harvey Weinstein’s accusers, deeply involved in trying to punish Theranos whistleblowers, and also tried to silence reporting on the Sony hack years back.

As recounted by Levy, RFK Jr. got the lawyers at Boies Schiller Flexner to convince a court to do some sketchy things in order to try to unmask the blogger:

When the blogger did not take the post down, Kennedy upped the ante, calling in a large firm, Boies Schiller Flexner, to file a pre-action petition for discovery to identify Kennedy?s critic. The proceeding was filed in Kennedy?s hometown court, Westchester County, New York, despite the fact that Daily Kos, owned by California company Kos Media, cannot be subpoenaed there, and despite the fact the New York has deliberately limited the reach of its long-arm statute to preclude defamation suits against alleged defamers who do not live in New York. The petition was verified, not by Kennedy himself but by his lawyer, who swore on personal knowledge that the blog post was false, even though the lawyer had not been in Berlin and thus could not have personal knowledge of what had happened there. The local judge nevertheless authorized the issuance of a subpoena to identify DowneastDem, deciding that admissible evidence that the allegedly defamatory statements were false was not needed because under existing precedents in New York?s Second Department, mere allegations of wrongdoing were enough to support issuance of a pre-litigation subpoena.

As Levy further notes, RFK’s lawyers started a new lawsuit in California based on the questionable NY subpoena, and that’s where Levy and Public Citizen have entered the case, seeking to quash the effort:

Thus, we filed a petition to quash the subpoena, and secured a briefing schedule that would give both sides a fair opportunity to brief the issues. Kennedy?s lawyers started trying to avoid having to address our arguments, first filing a parallel motion to compel Kos Media to comply with the subpoena, with a hearing date before our motion to quash was scheduled to be heard, then trying to strike our motion papers altogether. Once those efforts were denied, Kennedy, using an unusual California procedure that gives parties a peremptory strike to change the judge assigned to a case, claimed that the judge who had rejected his procedural evasions was prejudiced against him, and got the case reassigned. At this point, however, our motions are fully briefed and the cross-motions are scheduled to be heard on November 2, 2021.

Kennedy?s opposition to the motion to quash was rhetorically strong but surprisingly anemic in substance. We had anticipated that he would use his considerable resources to produce eyewitness affidavits from his German collaborators to attest to his version of the facts ? that is why we insisted on a briefing schedule that would give us ample time to find eyewitnesses to the rally at which he spoke. Instead, his opposition is based only on Kennedy?s own affidavit. Kennedy?s affidavit says broadly that the blog post contains false statements, which seems inadequate to the task of showing based on personal knowledge what was said at the rally, and by whom, considering that he does not appear to be fluent in German, and at the end of his speech, as shown on his own website, he appears to have headed to his bus to leave as soon as he was done speaking. On this sort of evidence, Kennedy risks a William Westmoreland style outcome  -? that is to say, a ruling that, so far as the record shows, what DowneastDem said about his participation in the protest was essentially true.

As Levy notes, underneath all this nonsense, there is an interesting question regarding anonymity:

If the case gets past Kennedy?s failure to present any admissible evidence of falsity, the utter lack of personal jurisdiction in the New York court, and the expiration of New York?s one-year statute of limitations since DowneastDem posted her blog article, the California judge could end up reaching an interesting issue that has been bothering me since we achieved our first round of success in getting the Dendrite analysis (or the related Cahill approach some state courts have adopted)? whether the requirement of an evidentiary showing extends to the issue of actual malice. Cases like Krinsky leave that issue open, and this case could be a good one to explore it.

Imagine, for example, that Bill Clinton wanted to identify an anonymous blogger who said, in 2021, that Clinton had sex with a White House intern ? would Clinton get to identify his accuser by doing no more than swearing under oath, ?I did not have sexual relations with that woman?? Or, considering the wealth of publication about Clinton?s conduct, would some showing on the issue of actual malice be required?

Similarly here, the defamation claim is not addressed to speech that is based on personal knowledge about what occurred in the course of a controversy that occurred in private, or between two or three people; so the speech was not based on facts known only to the defendant. The blogger here presented her take on what happened at a public rally, heavily covered by the mass media, and with thousands of people present (the very first post about this litigation on the web site of Children’s Health Defense claimed the ?speech that Kennedy delivered [was] to more than 1 million people? (although that same blog post said that the speech was on August 22 ? you can see how careful Kennedy is with facts); another said that this was ?one of the biggest demonstrations in [German] history.?  In context, the blog post could represent DowneastDem?s opinion about the meaning of the media reports (which would not be actionable). Alternately, it could be treated as a characterization of the facts reported by the many media reports; if the characterization of such facts is itself a fact, it would not likely be the product of actual malice considering how many reputable media sources made just the same statements.

If Kennedy had sued DowneastDem as a Doe defendant in either Maine or New York, his lawsuit would have been vulnerable to a motion to dismiss under the anti-SLAPP laws in those two states, and he would have had to present prima facie evidence of actual malice without knowing the Doe?s identity. Where Kennedy has evaded anti-SLAPP motions by seeking the remedy of outing his critic, without actually filing an action that could be met with an anti-SLAPP motion, it is fair and reasonable to require him to present evidence that suggests some likelihood that the allegedly false facts about a widely-reported public event were stated with actual malice, before a court issues an order depriving the blogger of the First Amendment right to speak anonymously.

Of course, all of this has created something of a Streisand Effect. How many people were aware that RFK spoke at this German rally before all of this? How many more people are aware now?

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Comments on “RFK Jr. Abusing The Courts To Harass Pseudonymous Blogger For Pointing Out RFK Spoke At German Event Organized By Far Right Extremists”

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Anonymous Coward says:

The petition was verified, not by Kennedy himself but by his lawyer, who swore on personal knowledge that the blog post was false, even though the lawyer had not been in Berlin and thus could not have personal knowledge of what had happened there.

And I’m sure that his lawyer will be promptly disbarred, since we definitely have a functional licensing organization and not a pile of flaming garbage…

Any moment now…

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Someone doth protest too much..

For someone adamant that there was nothing questionable about the event or who was at it he sure seems to be really interested in unmasking one of the people who wrote about it(the one with the least ability to fight back, what a coincidence) before they can actually challenge his claims or legal arguments. Funny that.

Adding to the self-own even if he was right he’d still be an asshole. Okay RFK Jr., let’s say you didn’t speak at a pro-Covid rally in the midst of a pandemics and in front of a bunch of neo-nazis but just a bunch of far right people, that still leaves you speaking at a pro-Covid rally in the midst of a pandemic and that’s not exactly much better there.

This comment has been deemed funny by the community.
That Anonymous Coward (profile) says:

Re: Someone doth protest too much..

Given all of the misinformation he’s been spreading about CoVid and other vaccines, its pretty much his brand.

I’m not sorry I promoted Covid misinformation, but how DARE you suggest these far-right groups goose-stepping and heiling were nazis!!!

Scary Devil Monastery (profile) says:

Re: Re: Re:3 Someone doth protest too much..

I think social media has the same policy all over.
No one wants to see John Q Doe taking a dump but if some guy from the Kennedy Clan starts calling long-distance on the porcelain throne they bet it’ll draw the traffic.

It’s why Trump had to go that far before Twitter and FB decided they couldn’t afford to host him any longer.

That One Guy (profile) says:

Re: Re: Re:4 Someone doth protest too much..

It’s why Trump had to go that far before Twitter and FB decided they couldn’t afford to host him any longer.

I’m still of the opinion that what cost him his social media accounts wasn’t actually the insurrection but that plus losing the election, and that if he had won but something similar had happened he’d still have all of his accounts.

Scary Devil Monastery (profile) says:

Re: Re: Re:5 Someone doth protest too much..

"…and that if he had won but something similar had happened he’d still have all of his accounts."

Sadly a possibility. But it isn’t a given. Mind you, the idea that social media would ban the US president would have been unthinkable a mere few years back.

Then again I guess most US presidents have turned out to be far more dignified leaders than Dear Leader. Even Nixon knew better than to drop trou in public.

Anonymous Coward says:

Hey, the headline of this post is pretty confusing. When I read it, I first thought that RFK Jr. had sued because of an accusation that RFK, his father, had spoken at a German far right rally. Please amend the headline to make it clear Jr. is complaining about coverage of Jr.

The headline invites confusion because RFK worked closely with the noted right wing demagogue, Joe McCarthy, in the 1950’s, so it’s quite plausible that Jr. would try to have reports of that sort of activity squelched. But, RFK Sr. famously became much more liberal as time went on, and to my knowledge at least, he never went to Germany to speak to an extremist right wing rally, even in his less enlightened days!

That Anonymous Coward (profile) says:

"Boies Schiller Flexner. As you may recall, the "Boies" in Boies Schiller Flexner is David Boies, who famously was deeply involved in trying to silence Harvey Weinstein’s accusers, deeply involved in trying to punish Theranos whistleblowers, and also tried to silence reporting on the Sony hack years back. "

And even with a track record that shitty, I mean how many failures does one need before people look for competent representation?

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

Re: BSF

Ah Yes! BSF, the team that WON that case for SCO against the World. Remember that everyone? That’s why I’m having to pay US$699 per CPU so that I can type this today.

Unfortunately, despite it’s death by a thousand self-inflicted cuts, this zombie corpse is still fondling it’s own giblets whilst prattling on about "the precioussss" lines of code in a header file, https://www.zdnet.com/article/after-almost-20-years-the-sco-vs-ibm-lawsuit-may-finally-be-ending/ as updated by Stevie J Vaughan-Nichols, https://www.youtube.com/watch?v=F73EcycGCO8

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restless94110 (profile) says:

the Issue

What would appear to be at issue here is the ultra hysterical claim that it was a "far" right anything at all. That kind of false claim could be damaging and might warrant a cost to the liar who would call itself a journalist.

You should look more carefully to the motives for the suits. In all the cases recently (incl. Nunes) you find people lying in order to smear.

Look to the motives b before you defend the enemies of speech and free thought.

Scary Devil Monastery (profile) says:

Re: Re: Re:

Can’t really decide if Restless94110 is a russian troll paid to inflame the alt-right base and/or make them look completely deranged.

If he is then he’s literally being paid to make the village idiots screaming deranged nonsense in the town square seem as dumb as they are. If I were Putin I’d torch his paycheck.

That One Guy (profile) says:

Re: Re: the Issue

No, they’re actually partly right for once(stopped clock and all I guess), articles like this one and ones covering Nunes do involve finding and covering people lying with the side-effect that the liars end up looking worse for it. That it would seem they see a problem with pointing out when someone is lying is on them though.

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