from the news-at-11 dept
But, now, by all accounts, it appears that Johnson has actually filed a defamation lawsuit in Missouri against Gawker (who is currently fighting a big (and much more important) lawsuit concerning the Hulk Hogan sex tape excerpt that it published). The lawsuit is equally as nutty as most things associated with Chuck Johnson, but go ahead and read it. The one thing that's important to note is that there hasn't, yet, been confirmation that it's actually been filed, but at the very least someone put work into it.
By all public appearances, the only reasons that this was filed in Missouri was because... that's where Johnson could actually find a lawyer willing to file something so ridiculous (the same lawyer who made the silly threats against Twitter) and, perhaps, because Missouri lacks a real anti-SLAPP law. It has one, but it only applies to petitioning the government. All the more reason to support a federal anti-SLAPP law.
We can go through all the reasons why the lawsuit is likely to fail, but, come on, we've got other stories to write as well, so we'll just pick out some of the highlights.
- Missouri?!? WTF? There is no legitimate reason to file this lawsuit in the state court in Missouri. Johnson is in California. Gawker is in NY. And no, the fact that it's kind of "in the middle" doesn't count. This lawsuit will almost certainly be thrown out over the venue choice. The rationale in the lawsuit is laughable:
Because Plaintiffs have been injured in the State of Missouri, the matter is properly before a circuit court of Missouri. Venue is determined solely by statute. State ex rel. Selimanovic v. Dierker, 246 S.W.3d 931, 932 (Mo. banc 2008). Because the matter alleges torts, including defamation and invasion of privacy, venue is proper in this Court.That's unlikely to fly. As Adam Steinbaugh notes in his write-up (the link above), the case will almost certainly get dumped for "lack of personal jurisdiction." At the very least it won't stay in state court as it meets all the easy criteria for removal to federal courts (parties in different states, over $75k at stake...). Steinbaugh also wonders if Gawker might try to jump into federal court and file for declaratory relief in a state where it can use an anti-SLAPP law, but that's not actually as easy as it may sound for a variety of reasons.
- The standard for defamation: As we've discussed many, many times, if you're a public figure, the standard for defamation is very high (as it should be). The statements need to be done with "actual malice," meaning that Gawker published false stuff, knowing it was false and that it would harm Johnson. That's not happening.
- That's not defamation: Among the things that Johnson complains about is a Gawker claim that he is the "web's worst journalist." That's clearly a statement of opinion. No court is likely to find that defamatory.
- Intermediary liability to the rescue: Johnson also claims that Gawker reporters "solicited" defamatory comments. That's protected by CDA 230 and should get tossed out. From the lawsuit:
It is very common for initiators of writings (such as Defendants Howard and Trotter) to create content amongst other non-initiating content creators, and to directly respond-to and collaborate with non-initiating content creators, instigate and solicit responses from non-initiating content creators, and adopt the conclusions of or otherwise advertise or approve of the content of non-initiating content creators as signified through text content or by hyperlinking to additional locations on the same webpage or the webpages of other stand-alone writings.Yeah, that's not how the law works.
- False things about false light: The lawsuit makes "false light" claims in addition to defamation. There's a problem with that. For the most part, Missouri does not recognize "false light." It's not absolutely true, but mostly true, as noted in a recent Missouri Supreme Court ruling that notes that it has left open the possibility of false light in future cases, but that it absolutely will not allow attempts to just pile on a false light claim that is nothing but an attempt to allege defamation in another form. This is not false light and Missouri's courts have rejected basically all false light claims for decades.