from the i'm-still-trying-to-figure-it-out-myself dept
You can read the lawsuit itself at the link above or embedded below. It makes a huge number of assumptions -- basically all incorrect -- that Randazza spoke to us in particular for our post. He did not. Either way, the Popehat analysis explains why this whole thing is ridiculous:
Roca Labs’ theory is that Randazza made defamatory statements to the media, which published them, and then proceeded to make the above statements in pleadings against the company. The litigation privilege does not extend to statements made outside the litigation — such as statements to the media.
But this position is circumspect at best: Roca Labs is vague about the statements supposedly made to the media. Roca Labs simply notes that two media outlets — Techdirt and BoingBoing — published articles before Randazza filed the pleadings, and those articles contain statements that are also critical of Roca Labs for similar reasons: that the complaint is ridiculous and that the product has the aura of being snake oil — a miracle product that will let its consumers shed weight like a snake sheds skin.
Roca Labs has pulled a bait-and-switch, essentially saying: “look, the media criticized us for similar things that Randazza criticized us, so let’s assume Randazza said those same things to the media.“ Except each of those statements are observations that anyone familiar with free speech issues would probably have made on their own. The Techdirt article doesn’t even quote or mention Randazza, and it’s not exactly surprising that either outlet would slam Roca Labs’ complaint: these types of half-baked lawsuits are something of a cause célèbre for Mike Masnick (who, himself, is not exactly a scrivener sycophant of Randazza.) As for the BoingBoing article, it did little more than quote Techdirt, adding, in total:
Roca Labs sells dubious snake-oil like a “Gastric Bypass Alternative,” and their terms of service forbid their customers from ever complaining; they say that Pissedconsumer.com committed “tortious interference” by providing a place where disgruntled buyers could air their grievances.
Calling something a “snake oil” is clearly an opinion no journalist would formulate on his own without talking to the defendants’ counsel, right? Much less BoingBoing, which never calls anything snake-oil.
So there's that. The complaint against Randazza also seems to try to smear Randazza for the fact that he's represented the First Amendment interests of some pornographers and "supported" other "undesirable" folks, including writing about the first amendment rights of a pro-pedophilia author.
On to the substance of the claim, if I may use the term very generously. Roca — through Johnny G. — asserts that Marc has been defaming Roca Labs during this litigation by making statements to the press (or, as Johnny G. puts it, to "webzines") and then putting those same statements in court pleadings. They imply he's trying to cloak his statements to the media with litigation privilege by repeating them in court filings. This theory is . . . odd.
Moreover, Johnny G. and Roca Labs are conspicuously vague about exactly what statements are defamatory, and exactly how. Other than complaining that Randazza defamed Roca Labs through a very clearly satirical tweet on Halloween, there are few specifics. Roca Labs complains that Randazza's purpose is to "mock, ridicule, humiliate, harm, and continue his war against ROCA," but that's not very specific. Roca Labs complains about statements in articles by Techdirt and tries to attribute them to Randazza, but doesn't explain exactly what Randazza said and exactly how it was wrong. That lack of specificity is probably deliberate — if Roca Labs admitted they were mad over the term "snake oil," they'd have to confront the fact that the phrase is obviously protected opinion. See, e.g., Phantom Touring v. Affiliated Publ'ns, 953 F.2d 724, 728, 730–31 (1st Cir.1992) (holding that description of theatre production as “a rip-off, a fraud, a scandal, a snake-oil job” was no more than “rhetorical hyperbole”). Moreover, in some parts of the complaint Roca Labs is attacking statements that are clearly, objectively true based on Roca Labs' own court documents. For instance, Roca Labs angrily quotes a paragraph in which Techdirt accused them of trying to silence customers. Which is what they are doing.
Finally, the complaint attaches a motion for a temporary injunction, in which Johnny G. demands that Randazza cease and desist saying mean things about Roca Labs, retract prior mean things, and remove any online content about Roca Labs. At this point I have to admit that I don't know whether Roca Labs and Johnny G. are powerfully stupid, breathtakingly cynical, unapologetically unethical, or all three. Despite the fact that they are suing a renowned First Amendment lawyer, despite the fact that they are demanding an injunction silencing him, despite the fact that they have lost a similar injunction request in which Randazza schooled them on the First Amendment and prior restraint issues, and despite the fact that it is clear those issues will arise again, their motion makes no mention whatsoever of the overwhelming First Amendment and prior restraint issues presented by their demand.
As Popehat further points out, Roca's lawyer also appears to use "defamation per se" incorrectly. We've noted in the past that Roca has used that claim based on a clause in its terms of service that says if you say negative things about the company it will count as defamation per se (which is not how defamation per se works), but Roca again seems confused with it in regards to Randazza. Popehat provides the primer:
Most people who use "defamation per se" use it wrong. That is the case here. "Defamation per se" does not mean "this is automatically defamatory." It means that certain statements, if proved false with the requisite mental state (malice or negligence), do not require extra proof of special damages.I can't imagine this particular lawsuit will go far, but I do wonder if Roca Labs and its lawyers will ever recognize that first rule of holes.
1. Stop digging ↩