SLAPP Suit In Virginia Tries To Silence Historian Highlighting Ancestry Of Guy Suing To Keep Confederate Statues In Charlottesville

from the free-speech? dept

Another day, another attempt by someone to silence people for saying something they don't like. The latest is a history professor, who was briefly quoted in an article about another lawsuit. That lawsuit? An attempt by some Virginia residents to stop the removal of some Confederate monuments in Charlottesville, Virginia. One of the plaintiffs in that case is Edward Dickinson Tayloe II. The article, written in the publication "C-Ville" (as you've figured out, a publication about Charlottesville) goes a bit into the history of the Tayloe family -- which goes back centuries in Virginia and apparently includes cotton plantation (and slave) owners.

The article contains two quotes from UVA history professor Jalane Schmidt. In the introduction to the article, she is quoted as saying the following about those who were suing to prevent the removal of Confederate monuments:

“You’ve got the bow tie, upscale people tied to the League of the South people who want to secede and are slavery apologists,” says activist and UVA professor Jalane Schmidt.

Later, in the section about Tayloe, she is quoted again:

Says Schmidt, “For generations this family has been roiling the lives of black people, and this is what [plaintiff Tayloe] chooses to pursue.”

This comes after multiple paragraphs describing, in fairly great detail, the history of the Tayloe family and what one might easily consider to be cruel treatment of slaves. It also includes slightly more recent history, regarding Tayloe's father, who, as the article notes:

... was vice-chair of the Charlottesville Redevelopment and Housing Authority when the decision was made to raze the African American community of Vinegar Hill over the objections of its residents, many of whom were unable to vote on the issue because of a poll tax.

Tayloe, it seems, was not happy about the article. So he sued C-ville, the reporter on the article (Lisa Provence), and Jalane Schmidt, the history professor. As the case is in a local Virginia court, the records are not as readily available as federal cases. However, the ACLU of Virginia has stepped in to defend Schmidt and has filed quite the response to what seems clearly to be a typical SLAPP suit -- seeking to silence someone for stating things you don't like.

As the filing notes, nothing in either of Schmidt's quotes is defamatory -- and, the filing claims, the complaint makes no effort at all to even show what statements are false statements of fact:

Plaintiff fails, as a threshold matter, to specify which of Professor Schmidt's words are allegedly defamatory.... Rather, he states that the alleged defamation occurs in the "implications" arising from the article.... Regarding Professor Schmidt's comment about the Tayloe family "roiling the lives of black people," Plaintiff takes issue with the context of the quotation ("Schmidt's assertion is offered without refutation or counterpoint") but fails to explain why the statement in and of itself is defamatory or has a defamatory implication

Ken "Popehat" White famously says that "vagueness in legal threats is the hallmark of meritless thuggery," and that appears to be the case here. Schmidt's quotes seem clearly to be giving her take -- her non-defamatory opinion -- on the history of Tayloe's family. Tayloe may not like that, but as an apparently proud American, he might want to thank the First Amendment for allowing that kind of free speech.

There is much more in the response, which you can read below, but this case should easily be tossed out. Even if someone were to make the case that the statements at issue were factual defamatory statements towards Tayloe, Tayloe would need to prove "actual malice" -- meaning that Schmidt knew the statement was false (which, she doesn't, since she stands by her words) or that they were made with "reckless disregard" for the truth. While the suit suggests that a failure to get Tayloe's side of the story is evidence of such negligence, that is not the standard at all, and there is no such requirement.

Thankfully, Virginia has a recently updated anti-SLAPP law that is now deemed to be "adequate" by the Public Participation Project (which advocates for better anti-SLAPP laws). Virginia's law should be a lot better and has some flaws, but hopefully it will be applied here. Schmidt and the ACLU of Virginia are seeking attorneys' fees under the statute, and hopefully they will succeed.

Notably, Schmidt has also written up a blog post for the ACLU talking about the chilling effects of these kinds of SLAPP suits.

Tayloe’s lawsuit against me not only fails to meet the legal requirements for a defamation case, it is also a disdainful attempt to stifle speech and prevent me from speaking out about matters of public concern. These types of claims, known as strategic lawsuits against public participation, or SLAPP suits, are designed to silence, censor and intimidate critics with the threat of costly litigation.

[....]

History belongs to everyone, not just scholars. Marginalized narratives of vulnerable groups of our community must be included in our collective story in order to inform our efforts to make changes in the present and to promote a more just and equitable future. First Amendment protections should not be stifled by lawsuits designed to make anyone fearful of the consequences of exercising their rights.

Some may argue that there is nothing exceptional about this particular SLAPP suit. It appears similar to many others that we write about here on Techdirt. And that's a big part of the problem. These kinds of lawsuits create massive chilling effects, even if they won't win in court. It's also why we need much stronger anti-SLAPP laws, both at the state level and at the federal level. These kinds of lawsuits keep getting filed because the lawsuit alone is all too frequently enough to stifle critical voices.

Filed Under: 1st amendment, anti-slapp, charlottesville, confederate monuments, edward tayloe, free speech, jalane schmidt, slapp, virginia
Companies: c-ville


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  • This comment has been flagged by the community. Click here to show it
    identicon
    christenson, 2 Aug 2019 @ 1:20pm

    In progress SLAPP: Mignogna v Funimation et al.

    Have a look at twitter's greg_doucette and the #threadnought.

    He has been following this suit since June, and it is overrunning his timelline.

    Story, in brief: Mr Mignogna, top voice actor for Anime, has a very longstanding reputation for being a sex pest. Stories stretch back to the 1980s. A "Dragonball" anime comes out January, it's huge, twitter asks dubber Funimation why they hire a pedophile. Huge storm; Funimation investigates and fires Mignogna. April or March, defamation suit is filed. Required letters from plaintiff are the butt of jokes. Depositions (looking very bad for plaintiff, including plaintiff admitting the truth of some stories) have been taken, TCPA (Anti-SLAPP) motion to be heard Sept 6.

    Oh, and Mr Mignogna has a bunch of internet pests for supporters, too. Fireworks expected Sept 6.

    reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 2 Aug 2019 @ 1:46pm

      Re: In progress SLAPP: Mignogna v Funimation et al.

      Techdirt has a report a story feature. You should try it.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Aug 2019 @ 1:58pm

      Re: In progress SLAPP: Mignogna v Funimation et al.

      Interesting, but not related to this post's story.

      Me, I'd be more interested if you'd talked about C-ville's and Provence's reaction to the SLAPP motion. Are they filing a contemporaneous one?

      The ACLU's motion, as is proper, is limited to the professor's involvement in the lawsuit. If the case against schmidt is as bad as is shown, how bad is the rest of the case?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Aug 2019 @ 11:24pm

      Re: In progress SLAPP: Mignogna v Funimation et al.

      Wow, it's almost like you've made up your mind about that case before you did any research, or maybe you like to listen and believe in a "facts optional" manner. The actual reality is a bit closer to a modern reenactment of The Tragedy of Julius Caesar. That said, this case does differ greatly from essentially every other defamation case discussed here as the plaintiff looks to have an actual case instead of merely blowing hot air.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 3 Aug 2019 @ 4:03am

      Re: In progress SLAPP: Mignogna v Funimation et al.

      Given that you've hijacked another story's comments t put this here and haven't bothered to cite any sources beyond "look at some random crap on Twitter who I won't bother identifying why they should be good sources"... I can only conclude that you're desperate to deflect attention away from Charlottesville racists. I wonder why that is?

      reply to this | link to this | view in chronology ]

  • identicon
    Bruce C., 2 Aug 2019 @ 1:59pm

    "Some may argue that there is nothing exceptional about this particular SLAPP suit. "

    Oddly enough (or perhaps unsurprisingly), the "nothing exceptional" form of argument was also used to justify slavery back in the day.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Aug 2019 @ 3:05pm

    You can't deny history by trying to hide it or remove it. If you are going to go on about the cruelty to slaves, don't forget to continue with the cruelty of native indians, cruel slaughter of buffalo. Cruelty to children and orphans and disabled in institutions and don't forget about priests molesting children. Military cruelty and government cruelty of Japanese citizens detained in the internment camps throughout WW2. The current separation of children refugees from their parents seeking asylum in America today. The cruelty is everywhere you look, both historically and presently.

    reply to this | link to this | view in chronology ]

    • identicon
      Blake, 5 Aug 2019 @ 11:01am

      Re:

      Your comment is very confusing to me.
      Why wouldn't we be able to discuss one instance or type of cruelty without bringing up every instance or type of cruelty?

      That just seems like an impractical and burdensome rule, that serves no real purpose.

      Also...says who? You?

      reply to this | link to this | view in chronology ]

  • identicon
    Qwertygiy, 2 Aug 2019 @ 3:06pm

    Be careful what you wish for, you just might get it all

    Even though I am in the Indiana Jones camp when it comes to the monument debate ("it belongs in a museum!"), and I don't think that belittling someone's heritage makes for an effective argument against their actions, I see nothing worth defending about this guy's reaction to his heritage being belittled.

    The entire point of the First Amendment is to be able to say what you see and what you think, even if someone else doesn't like what you see or what you think. And that absolutely covers what was said by the historian and the reporter.

    It's especially ridiculous when he kicked off the whole thing by arguing that it is more important to remember the past than to be offended by the unpleasantness of the past. You were literally asking for the unpleasantness of your past to be remembered, Mr. Tayloe, so there's no need to be a dick(inson) about it.

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 2 Aug 2019 @ 4:38pm

      Re: Be careful what you wish for, you just might get it all

      It's especially ridiculous when he kicked off the whole thing by arguing that it is more important to remember the past than to be offended by the unpleasantness of the past. You were literally asking for the unpleasantness of your past to be remembered, Mr. Tayloe, so there's no need to be a dick(inson) about it.

      Why, it's almost as if that justification was pretextual, and he just wanted to support racism without being called a racist!

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 3 Aug 2019 @ 4:05am

      Re: Be careful what you wish for, you just might get it all

      "The entire point of the First Amendment is to be able to say what you see and what you think, even if someone else doesn't like what you see or what you think."

      Actually, the entire point is to do that without action taken against you by the government. Other people are still allowed to react.

      That's why it's problematic that legal devices are being used to create chilling effects.

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 4 Aug 2019 @ 2:51am

        That's why it's problematic that legal devices are being used to create chilling effects.

        See also: copyright

        reply to this | link to this | view in chronology ]

      • icon
        Thad (profile), 5 Aug 2019 @ 7:48am

        Re: Re: Be careful what you wish for, you just might get it all

        Actually, the entire point is to do that without action taken against you by the government. Other people are still allowed to react.

        Yes, but they don't have the (legal) power to prevent you from saying it. They can exert social and financial pressure on you not to say it, but ultimately it's your decision whether or not to bow to that pressure.

        Ergo, you're still able to say what you see and think, even if you choose not to. Qwerty's statement is correct.

        reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 2 Aug 2019 @ 5:47pm

    The truth is out there

    The truth is what it is, regardless of what others say it is. Denial is not a defense, and it takes more than one to make any kind of argument. Where is the corroborating evidence?

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 3 Aug 2019 @ 4:05am

    ... let's just brush that under the rug shall we?

    Really now, I can totally see where they're coming from. Sure their family history is.... shall we say 'colorful' for all the wrong reasons, but as someone who is doing their best to remedy that by countering such a grossly racist history bringing that sort of thing just distracts from thei-

    That lawsuit? An attempt by some Virginia residents to stop the removal of some Confederate monuments in Charlottesville, Virginia.

    ... oh.

    See, if you're going to cry 'defamation!' because someone mentioned your family's super racist history, it kinda helps if you're not involved in a lawsuit meant to preserve monuments to racist losers(in both meanings of the word).

    reply to this | link to this | view in chronology ]

    • identicon
      David, 3 Aug 2019 @ 6:06am

      Re: ... let's just brush that under the rug shall we?

      See, if you're going to cry 'defamation!' because someone mentioned your family's super racist history, it kinda helps if you're not involved in a lawsuit meant to preserve monuments to racist losers(in both meanings of the word).

      Perhaps he prefers establishing himself as a racist in his own right rather than resting on the cotton bales of his forebears?

      reply to this | link to this | view in chronology ]

    • icon
      Wendy Cockcroft (profile), 6 Aug 2019 @ 5:14am

      Re: ... let's just brush that under the rug shall we?

      See, if you're going to cry 'defamation!' because someone mentioned your family's super racist history, it kinda helps if you're not involved in a lawsuit meant to preserve monuments to racist losers(in both meanings of the word).

      ^This. People won't think you're a git if you don't act like one. Attempting to get the government to force someone to stop calling you a git while you're in the process of acting like one ain't a clever thing to do.

      I can see both sides of the statue argument: people want to believe their ancestors were heroes and want to be associated with that. To call out the behaviour of the ancestors knocks a big hole in that, which is what they're so upset about.

      Given that the erection of these statues was a racist act in and of itself, the idea being to remind the non--white population to "know their place," I can see why there is a desire on the part of some people to take them down, to effectively say, "It's over, you can come out now."

      I think a reasonable compromise would be to put up statues of people of colour near the Confederate ones, the idea being to provide a juxtaposition, like the Fearless Girl and the Wall Street Bull. I daresay that would provide the counter-speech required to both knock a hole in the "heroic racist" narrative and to provide a view of people of colour as being worthy of being remembered with honour.

      reply to this | link to this | view in chronology ]

  • identicon
    Janet B., 4 Aug 2019 @ 4:00am

    Really, no privacy allowed?

    1) I am surprised no one cares that a publication uses it's power to smear an individual with an opinion different than the one issued by a media source. This seems like an abuse of power and if government did it, it would be a violation of a person's 4th amendment rights. We never see the media do this to a liberal. They should always be reluctant to use ad hominem even if "newsworthy".

    2) Many of the people in Charlottesville are not racists. Some think that civil war monuments, even on public property, give a historical flavor that encourages tourism and learning about history. Even then, we understand that putting them at courthouses smacks of Jim Crow. Just leave them at parks, museums, and battlefields.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 4 Aug 2019 @ 6:34am

      When suing to KEEP monuments to losers around, no

      I am surprised no one cares that a publication uses it's power to smear an individual with an opinion different than the one issued by a media source.

      Reporting on the history of a person involved in a public lawsuit designed to keep monuments to a bunch of slave keeping racist losers around is not a 'smear'. Had he not been involved in that the I doubt anyone would have cared, but once he went legal what kind of person he was(and hence why he might want to do something like that) became relevant.

      Also, pointing out that his family(going back a good while at that) has historically been uber-racists is not an 'ad hominem', that's simply reporting on historical facts relating to someone involved in a public lawsuit over a matter that impacts a great number of people.

      Some think that civil war monuments, even on public property, give a historical flavor that encourages tourism and learning about history.

      History books and museums. If people want to dig into the history of repulsive people then they have options that don't involve keeping around monuments to them in very visible public locations.

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 4 Aug 2019 @ 9:59am

      no one cares that a publication uses it's power to smear an individual with an opinion different than the one issued by a media source

      The truth is only a “smear” if you’re ashamed of it.

      Some think that civil war monuments, even on public property, give a historical flavor that encourages tourism and learning about history.

      And if monuments to the Confederacy were for “learning about history”, rather than for celebrating a violent uprising against the United States federal government to protect the institution of enslaving Black people, you might have a point.

      putting them at courthouses smacks of Jim Crow. Just leave them at parks, museums, and battlefields.

      Putting them anywhere other than a museum smacks of Jim Crow. Confederate statues went up — in states that weren’t even part of the Confederacy, no less! — to send a message: “Black people may be free, but White people still run this country.” They don’t belong on any kind of public property other than the inside of a government-maintained museum.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Aug 2019 @ 5:42pm

      Re: Really, no privacy allowed?

      “Many of the people in Charlottesville are not racists.”

      So you’re saying there’s fine people on both sides?

      reply to this | link to this | view in chronology ]

  • icon
    Hugo S Cunningham (profile), 5 Aug 2019 @ 8:24am

    Remedies, then and now...

    In the Good Old Days ("the Constitution as it was"), the proper remedy for an offensive article was to attack the writer with a stick, challenge him to a duel, or get together a group of your friends to smash his printing press. Since it was considered ill form to beat a woman or challenge her to a duel, the challenge would be better directed at her husband, father, or brother. for failing to control her.

    More recently, in the pre-NYTimes-v-Sullivan age, the remedy was to sue the offender before a jury packed with your sympathizers. Alas, that no longer works either.

    Constitutional "textualism" (strict construction) seems to be at war with "originalism" (how the Founders understood press freedom in their time). Should we settle the matter with a duel?

    reply to this | link to this | view in chronology ]

  • identicon
    R,ogs/, 5 Aug 2019 @ 11:15am

    re: bad white man

    This looks like a good place to post a link to controlled asset David Dukes version of black racist Louis Farrakhans seekrit history of how white Jews/te Joos slaved, raped, sold, and otherwise destroyed black people:

    https://davidduke.com/the-suppressed-history-between-blacks-and-jews/

    reply to this | link to this | view in chronology ]

  • icon
    Hugo S Cunningham (profile), 5 Aug 2019 @ 11:57am

    Another Massachusetts SLAPP suit

    Since Techdirt was burned by one SLAPP suit, I thought another might be of casual interest: A student newspaper is being sued for reprinting a public police announcement:

    https://www.bostonglobe.com/metro/2019/07/26/student-newspaper-case-could-upend-journalism-protecti ons/cQjQafMXlhxDiG8LEm5EaK/story.html#comments

    reply to this | link to this | view in chronology ]


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