Elon Musk’s favorite lawyer, Alex Spiro, isn’t having a great week. Sure, sure, he just signed up embattled NYC mayor Eric Adams as a new client, but he seems to have royally fucked up in defending Elon.
One of Elon’s many legal fights currently is a defamation lawsuit filed by a California man, Ben Brody. Last year, there was a fight between two different groups of far-right neo-Nazis that got some attention. Some of them were masked, and at one point, one guy’s mask got pulled off. Some fucking idiots that Elon Musk follows falsely claimed that one of the unmasked dudes was Brody, and that it was some sort of false flag operation, because Brody is Jewish (and had expressed an interest in working for law enforcement) and wouldn’t be a part of a neo-Nazi org.
As he is known to do, Musk went with the standard confirmation bias response of assuming anything any idiot tells him must be true.
Brody is represented by Mark Bankston, who recently (successfully) represented families from Sandy Hook in their successful defamation lawsuit against Alex Jones.
I didn’t write about the case at the time because while it does show Musk being an absolute gullible buffoon (yet again), it’s not clear to me that what he did actually reached the level of defamation. It seemed at least worth waiting until the case was further along and more details were available.
But, the case took an absolutely bizarre turn in the last week. You see, at the end of March, Musk sat for a deposition and brought along his buddy Spiro, who seemed wholly unfamiliar with how litigation or depositions work, despite being one of the highest paid, most well-known litigators out there.
Musk revealed a bunch of embarrassing shit in the deposition, including about his various burner accounts on Twitter and where he acted like an absolute ass when asked some fairly basic questions about the lawsuit (pretending that Bankston, not Brody, was the plaintiff, for example). He also appears to have admitted a bunch of really damaging stuff for the case.
But, things really go off the rails at the end when Spiro demands that the deposition be marked “confidential” out of nowhere. That is… not how any of this works. As you can tell from the transcript that ensued, you need to get a protective order before any of this happens. You don’t just get to declare it “confidential” after the fact.
MR. BANKSTON: All right. Mr. Musk, I don’t have anything more for you today.
MR. SPIRO: Okay. Thank you.
THE REPORTER: Mr. Spiro, I need to have you say on the record whether you want a copy of the transcript.
MR. SPIRO: Yes, and please mark it confidential.
MR. BANKSTON: I’m sorry. What? There’s no PO in this case.
MR. SPIRO: We’re asking for it to be deemed marked confidential until we address —
MR. BANKSTON: Under what authority? No. There’s no PO.
MR. SPIRO: Well, that’s what I’m asking for. You want to release it —
MR. BANKSTON: Then you need to move – you need to move fora PO. I don’t — no —
MR. SPIRO: Okay. Then we will move for PO.
MR. BANKSTON: Right. Over discovery that’s already happened?
MR. SPIRO: Yeah. Okay.
MR. BANKSTON: I’m absolutely positive there’s not —
MR. SPIRO: I’m asking that this transcript be marked as confidential. That’s what I’m asking for, okay?
MR. BANKSTON: I don’t agree.
THE REPORTER: Mr. Spiro
MR. BANKSTON: Yeah, he jumped off the record, but we’re not off the record yet.
THE REPORTER: I need to find out if Mr. Musk wanted to read and sign his transcript.
MR. BANKSTON: Well, we’re not going to find that out either because he just left. I do need to make a record on what just happened for the Court. Parties must obviously move for a protective order over discovery before it occurs. I am in no way bound to treat anything confidential.
There is no confidential order in place. There is a method in which to do that. Attorneys from Quinn Emanuel should know very well how to do that. In fact, even Alex Jones’ attorneys knew how to do that. Apart from that, there’s not a single trade secret or anything confidential ever mentioned anywhere throughout this deposition. I’m very concerned that Mr. Spiro, a non-Texas lawyer who is — came to this deposition to practice law in violation of Texas law with no pro hac admission completely shut down many segments of the deposition, issued several instructions not to answer that were wholly inappropriate, completely interrupted and made objections outside of Rule 199.5. And then at the end of the deposition demands that it be treated confidential.
Mr. Spiro is clearly not following any of the procedures that would need to happen here. Given what he’s said, we will not discuss what happened here in this deposition with third parties until we talk to the Court about it obviously. But we will make sure for the record — we do not see any method on which to designate things as confidential, so we don’t — we. don’t recognize that request as anything valid.
If they want to pursue a Rule 76 at a future time, I mean, I guess they’re welcome to try to do that. But, again, just to state for the record, we are not — we are not under protective order. We have no obligation to abide by any confidentiality, and we reject wholeheartedly Mr. Spiro’s unilateral attempts to place us under some sort of legal obligation. We do not recognize it whatsoever. And with that, we conclude the deposition today.
THE VIDEOGRAPHER: This concludes the deposition at 3:19 p.m.
I’ve seen some wild depositions over the years, but this one is way out there.
Anyway, Bankston followed up with his comments at the end of the deposition and requested sanctions against Spiro for engaging in unauthorized practice of law. Standard practice for an out-of-state lawyer is to apply in the relevant court for “pro hac vice” admission to the court. It literally means “for this occasion,” and allows an out-of-state lawyer to request to practice (usually with assistance from a local lawyer) in that state for this particular case. It’s usually rubber-stamped by judges.
But Bankston is now opposing the request in Spiro’s case while simultaneously requesting sanctions because of his activities.
Out-of-state attorney Alex Spiro brazenly engaged in unauthorized practice of law by signing and preparing Musk’s pleadings, showing up unannounced to defend Musk’s deposition with no authority to practice law in Texas, and drafting and serving subsequent legal demands to Plaintiff. Even worse, Spiro’s behavior in deposition was astonishingly unprofessional, as he continually interrupted the deposition with commentary, gave numerous improper instructions not to answer, berated opposing counsel, insulted Plaintiff’s claims, mocked counsel’s questions, and generally acted in the most obnoxious ‘manner one could contemplate without crossing into parody. In doing so, he irreparably disrupted the deposition, prevented relevant questioning relating to Plaintiff’s TCPA response, and demonstrated his disrespect for the sanctity of these proceedings.
Bankston notes that Musk more or less admitted to all of the important and necessary points to make his tweets about Brody defamatory in the deposition, but also notes that Spiro kept making a mess of the hearing:
In sum, Musk admitted to all the material allegations in Brody’s Petition. Yet as damaging as it was, Musk’s deposition could have gone even worse but for the obstructionist conduct of the attorney defending the deposition. In this case, Musk has been represented by two Texas attorneys- Emiliano Delgado and John Bash. Both of these attorneys appeared on Musk’s behalf at the discovery hearing. However, neither of these attorneys were present at Musk’s deposition. Instead, and unbeknownst to Plaintiff’s counsel, out-of-state attorney Alex Spiro showed up to the deposition with no notice. Spiro is not licensed in Texas, nor is he admitted pro hac vice. As shown below, Spiro continually interrupted the testimony, injected his commentary in front of the witness, berated opposing counsel, gave numerous instructions not to answer relevant questions, and generally attempted to derail an obviously damaging deposition, all while Spiro was engaged in flagrant unauthorized practice of law. Asa result, the Court’s rules have been flouted, and Brody was prevented from a full inquiry on the issue of actual malice.
There’s a lot in the filing that suggests Spiro could have easily done things to comply with the basics of the law and chose not to do so.
Spiro decided to show up unannounced to Musk’s deposition, make an appearance as his attorney, and represent Musk during his testimony. Plaintiff’s counsel were not informed Spiro would appear at the deposition, and none of Musk’s Texas attorneys even attended the deposition.
As the Delaware Supreme Court observed, “one of the principal purposes of the pro hac vice rules is to assure that” either a local lawyer or a “lawyer admitted pro hac vice” will “be present at a deposition; as “an officer of the [] Court, subject to control of the Court to ensure the integrity of the proceeding” Paramount Commc’ns v. Qvc Network, 637 A.2d 34,56 (Del. 1994). Importantly, pro hac vice requirements also ensure the attorney is familiar with the state’s rules, procedures, and ethical standards. As such, Musk “should have been represented at the deposition by a [Texas] lawyer or a lawyer admitted pro hac vice” Id. at 55. Here, Plaintiff’s counsel noted that he was “very concerned” that Spiro “came to this deposition to practice law in violation of Texas law with no pro hac admission.”10 As shown below, Spiro mocked these concerns.
In doing so, Spiro broke his ethical duties. “Without admission pro hac vice, out-of- state attorneys … actively participating in pretrial proceedings such as depositions … would be engaged in the unauthorized practice of law in this state.” In re Roswold, 249 P3d 1199, 1208 (Kan. 2011); see also Forbes v. Hixson, 145 So. 3d 1124, 1136 (Miss. 2014) (‘[Plhysically appearing at ..a deposition …or any other proceeding in which the attorney announces that he or she represents a party to the lawsuit …require[s] a foreign attorney to be admitted pro hac vice”); see also In re Hughes, 833 NE.2d 459, 460 (Ind. 2005) (violation of professional conduct rule for Indiana lawyer to permit Michigan attorney to handle depositions and ‘mediation in Indiana case); In re York, 2010 MP 11,9 2 n.3, 8 N. Mar. 1. 476, 477 (‘After the Court learned of Murray’s participation in the deposition [before his pro hac vice admission], it made a finding of unauthorized practice of law and revoked Murray’s recently-granted pro hac vice status.”); Smith v. Hastings Fiber Glass Prods, No. 11-0894, 2014 US. Dist. LEXIS 81125,at*11-12 (WD.La. 2014) (Noting that attorney “could not have participated in out of court proceedings such as depositions” without “admission pro hac vice in this case … unless he was engaged in the unauthorized practice of law); In re Cortigene, 13-2022 (La. 02/14/14), 144 So. 3d 915, 918-20 (Holding that non-resident attorney “engaged in the practice of law in this state by appearing at and participating in a deposition” and that the “appropriate sanction for such misconduct would be a three-year suspension” when attorney “participated in the deposition of [client] taken in New Orleans by another party.’ and “advised [client] ‘once or twice’ to either answer or not answer a particular question.” even though another attorney “predominantly did the questioning and the objecting”).
Apparently, after the deposition, Spiro sent a letter to Bankston, representing Musk, about his supposed plans to file for the protective order (which, again, you shouldn’t do after discovery). But, that represented further unauthorized practice of law:
On March 27, 2024, following his improper appearance at Musk’s deposition and his unprofessional conduct therein, Spiro sent a letter to Brody’s counsel. (Ex. 3, Spiro letter). This letter informed Brody’s counsel that an emergency motion was being prepared, and the letter made legal demands of confidentiality on Brody, his attorneys, and consulting expert. Thus, even after being confronted during the deposition about his lack of authority to practice law in Texas, Spiro continues to engage in unauthorized practice.
Bankston also outlines how Spiro regularly interjected his own thoughts in the deposition, rather than doing the only thing he would actually be permitted to do: raise objections to specific questions, which could then be reviewed by a judge later on.
This exchange is quite something:
Q Mr: Musk, I’m referring to the fact that on June 24th, 2023, as described in the plaintiff Ben Brody’s lawsuit, there was a brawl in Oregon between right wing extremists. Were you aware that that was the subject matter of the lawsuit?
MR. SPIRO: I don’t know that that’s the subject matter of the lawsuit. I think the subject matter of the –
MR. BANKSTON: A subject matter of the lawsuit. And, Mr. Spiro, again, your objections to questions in an oral deposition under Rule 199.5 are limited to objection; leading and objection; form, or objection; nonresponsive. Those objections are waived if not stated as phrased. All other objections need not be made or recorded during the oral deposition to be raised to the court. You must not give any suggestive or argumentative or any explanations during the deposition.
MR. SPIRO: Well, then don’t say things that are misleading.
MR. BANKSTON: No. That’s not – that’s why you should object to the form of the question.
MR. SPIRO: No, no, it’s not-
MR. BANKSTON: That’s misleading. Mr. Spiro, you know — Mr. Spiro —
MR.SPIRO: Listen, if you want to go back and forth with me and waste your time, you can. Go on to your next question.
MR. BANKSTON: Oh, we’re going to get more time if you keep doing this.
MR. SPIRO: No, you’re not. No, you’re not. Go to the judge —
MR. BANKSTON: You’re violating Rule 199, you’re not even pro hac admitted.
MR. SPIRO: Okay. Okay. You’re just giving speeches that nobody’s listening to but you. You’re just doing them for yourself.
MR. BANKSTON: Oh, they’re for the record, Mr. Spiro, they’re for the court to listen to.
MR. SPIRO: Okay. So keep
MR. BANKSTON: And I would appreciate it – I’m going to give you an instruction. I would appreciate it if you would abide by Rule 199.5 of the Texas Rules —
MR. SPIRO: I heard you the first three times.
MR. BANKSTON: Mr. Spiro, please do not interrupt me.
MR. SPIRO: I heard you the first three times.
MR. BANKSTON: Mr. Spiro, please do not interrupt me. I’m asking you on the record to obey Rule 199.5. If you continue to violate Rule 199.5, I will move for sanctions against you. So I please ask you to obey the rules in the remainder of this deposition.
There’s much more between the deposition and the filing, but it’s striking.
None of this means Spiro will actually get sanctioned. Judges are often hesitant to go that far. And granting pro hac vice requests is so standard, it wouldn’t surprise me if a judge overlooks all this and grants it and says that none of this matters anymore.
On top of that, Spiro likely doesn’t much care how this goes. If he has to pay up, he pays up. And he’ll just view this as good marketing for how much of an asshole lawyer he is, believing (incorrectly) that this shows how hard he fights for his clients, even as, in this case, he’s helped make a mess of things for his client.
Remember Nick Sandmann? He was the dude who became something of a Rorschach Test for how much your political beliefs (in any direction) influence your views of a short video, when EVERYONE HAD OPINIONS on his MAGA-hat wearing encounter with a Native American demonstrator, Nathan Phillips. Also, everyone magically became experts in reading body language and facial expressions.
Anyway, it turned out that the short video left out much of the context of the encounter, and many of those opinions looked a bit silly within days (again, in any political direction). But, for some reason, Sandmann was convinced that he could sue anyone who offered an eventually-determined-to-be-silly opinion for defamation, partly because of the advice of his terrible, terrible lawyers Lin Wood and Todd McMurtry.
He sued a bunch of news orgs, and none of the cases showed anything that could even remotely be seen as defamatory. After some back and forth, much of the case zeroed in on one major thing. Phillips had spoken to the media about his impressions of the encounter, which were clearly his opinion from his vantage point. But Sandmann insisted that because there were some minor factual errors in that description, it could be deemed as defamatory. But, that’s not how it works.
Eventually, CNN decided to settle, leading to wild speculation that CNN must have paid him hundreds of millions of dollars. This was based solely on the ridiculous amounts he had asked for in the lawsuits themselves. However, most people recognized the nature of the settlement, given where the case was meant that it was almost certainly a “nuisance fee,” to make the case go away. That is, less than it would have cost to have continued to fight the case and get it dismissed.
This was more or less confirmed when Sandmann’s not-good-actually-terrible lawyer Lin Wood lost his shit when a CNN on-air contributor randomly speculated on Twitter that she’d “guess” Sandmann got $25k, and Wood claimed that was a breach of CNN’s confidentiality agreement. So, one, that confirmed rather than the many, many millions MAGA folks were insisting Sandmann got, Wood effectively confirmed it was $25k. If it was a wrong number, Wood likely wouldn’t have been claiming it violated an agreement. But, also, the fact that it was just a guess (apparently a good one) meant that, even if right, it wouldn’t violate the agreement.
The Washington Post and NBC also eventually (stupidly) decided it was worth nuisance fees and settled. They shouldn’t have. Beyond marking themselves as easy marks in defamation lawsuits (leading to a bunch of MAGA lawsuits directed at CNN), it allowed this ridiculous story to live on.
Of course, what happened then was that a judge rightly dismissed all the other lawsuits against all the other media defendants (which had all been consolidated into a single case). There was no defamation at all. The companies that paid nuisance fees to settle could have paid a bit more and actually won their cases.
Sandmann appealed. Last year, the 6th Circuit easily upheld the lower court ruling. Again, opinion ain’t defamation. This is defamation 101 stuff:
Phillips’s statements are opinion, not fact. In making this finding, we are not engaging in speculation or reading improper inferences into Phillips’s statements, as the dissent suggests. Rather, we are engaging in the task required of us: a legal interpretation of Phillips’s statements in their context within the News Organizations’ articles. The statements’ opinion-versus-fact status is “not a question for the jury.” Cromity, 494 S.W.3d at 504.
Because the statements are opinion, they are protected by both the Constitution and Kentucky law, and they are nonactionable. The district court did not err in so concluding.
Sandmann requested the Supreme Court hear his appeal. He argued that “conveying observed sensory impressions in factual, descriptive terms” should not be considered opinion, but could be deemed as factual. Basically, if you are describing how you viewed a scenario (i.e., your opinion of it), but use “factual” language, then (according to the petition), it should be possible to call it defamatory.
This reminds me of a lesson a smart 1st Amendment lawyer told me years back. Saying “in my opinion” and then stating a fact doesn’t make it an opinion, nor does saying “as a matter of fact” and then stating an opinion make what you said factual. How you frame it doesn’t matter for defamation. It just matters whether or not you made a false statement of fact that defamed someone. Giving your opinion of a situation is not that.
Last week, the Supreme Court denied cert (without comment). Sandmann’s lawyer (Sandmann fired Lin Wood midway through all this but kept on Todd McMurtry) is claiming this is a travesty of justice, which is just as laughable as his legal arguments in the case:
Sandmann attorney Todd McMurtry told Law&Crime that the denial left him profoundly disappointed.
“In response to the Supreme Court’s recent decision not to hear the defamation case of Nick Sandmann, I can only express profound disappointment. This outcome denies Nick justice and misses an opportunity to set important precedents for protecting individual rights against defamation by mainstream media,” he said. “The Supreme Court’s refusal to address the critical issues presented by our case illustrates the growing challenges individuals face in the public sphere. Such challenges include unchecked defamation, significantly threatening individuals’ reputational integrity and personal dignity. It touches upon the very essence of our democratic values and the right of every American to seek redress when those values are compromised.”
The lawyer added that he’s writing a book called “Dismissed” which will explore “challenges faced by individuals in seeking justice against powerful media entities,” as in Sandmann’s case. He maintains there are “systemic issues” that make defamation actions like these subject to “marginalization.”
“As we reflect on the implications of the Supreme Court’s decision, let us keep sight of the broader conversation about justice, accountability, and the protection of individual rights,” McMurtry concluded. “We must continue this conversation with urgency and commitment for Nick and all Americans who deserve a legal system that serves justice equitably.”
Get off your high horse, McMurtry. You filed a series of shitty SLAPP suits over non-defamatory speech. You were lucky to get out of it with a few nuisance-fee settlement deals. If you actually had a legitimate case it wouldn’t have been rejected at all three levels. The subtitle of your book should be “how I wasted everyone’s time and money just to get dismissed.”
The only “systemic” issue is the one going the other way: the one that enables people to file sketchy SLAPP suits over nothing, and waste years of everyone’s time.
This is why we continue to need a strong federal anti-SLAPP law and strong anti-SLAPP laws in every state, to get these kinds of suits dismissed much faster, and with legal fees on the line.
“Open up the libel laws!” the man who can’t win consecutive elections (much less a defamation lawsuit) once proclaimed. The Republican Party (or at least its voting bloc) appears willing to give a man who’s enjoyed nothing but unearned opportunities throughout his professional and governmental career yet another shot in 2024. But he’s not going to find similar support in the courts, which have rejected pretty much every suit the sorest loser in the world has filed over the course of his lifetime.
This latest effort will fare no better. As C.J. Ciaramella explains at Reason, it’s highly unlikely any court will decide the line between defamation and mostly factual somehow runs right through the narrow definition of one state’s legal definition of the word “rape.”
In a complaint filed yesterday in the U.S. District Court for the Southern District of Florida, Trump alleges that Stephanopoulos defamed him during a March 10 interview with Rep. Nancy Mace (R–S.C.) in which the host repeatedly said that a jury found Trump liable for rape in the lawsuits brought against him by E. Jean Carroll.
[…]
Trump’s complaint is correct that, as a technical matter, he was found civilly liable for sexual assault under New York state law, not rape, because the jury did not find that he penetrated Carrol with his penis.
That’s the argument Trump is making. He was defamed not because it was alleged he sexually assaulted someone. He was defamed because the sexual assault (allegations upheld by a jury that also awarded Carroll $5 million last year) wasn’t legally “rape” under New York law.
Trump’s decision to push this argument shows he’s incapable of learning from past mistakes. The judge presiding over Carroll’s lawsuit already made it clear the sustained allegations described violations most people would describe as “rape” even if they did not include penile penetration.
“The finding that Ms. Carroll failed to prove that she was ‘raped’ within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump ‘raped’ her as many people commonly understand the word ‘rape,” Kaplan wrote. “Indeed, as the evidence at trial […] makes clear, the jury found that Mr. Trump in fact did exactly that.”
That is, the jury found it credible that Trump had penetrated Carroll’s vagina without her consent, although it was more likely with his fingers (a method Trump espouses) than with his penis. Rape in common sense of the word, even if it wouldn’t result in the specific criminal charge in the state of New York.
But Trump is as stubborn as he is stupid, and so he’s filed another lawsuit [PDF] he’s destined to lose. This one’s filed in Florida, which is where Trump often prefers to do his judicial business. Choice of venue aside, this lawsuit has “LOSER” written all over it. It opens with Trump reminding the court that he was once president of the United States and has built up enough steam to become the second coming of Grover Cleveland.
This boilerplate tho:
Plaintiff President Donald J. Trump (“Plaintiff”) is a private citizen of the United States, a resident of the state of Florida, the 45th President of the United States of America, and the leading candidate in the 2024 Presidential Election.
At least that means there won’t be any arguments over whether or not Donald Trump is a “public figure” for the purposes of this litigation. It’s also unsurprising that Trump refers to himself as a “private citizen” when filing lawsuits, but as “president” when defending himself against lawsuits and/or criminal charges.
The self-aggrandizement is followed by several paragraphs of Trump trying to re-litigate the E. Jean Carroll case — one that has gone down in the history books as a Trump loss, and one that he continues to compound by his unwillingness to stop defaming (or stop suing!) the victor of the civil case.
At the heart of this case are the ten times George Stephanopoulos referred to Trump’s sexual assault (under New York law!) as “rape” while interviewing Congressperson Nancy Mace. That’s it. That’s the whole thing. It goes on for several more pages, but that’s the entirety of the argument: that a jury found him liable for defamation and sexual assault, but not for the crime of “rape” as described very particularly by the New York state statute.
That’s not going to matter when this case gets underway. The standard is whether or not the statements are factual. Most people would consider forceful penetration of sexual orifices “rape,” no matter what was used. On top of that, Stephanopoulos was offering commentary and engaging in an interview of a Congressional Trump supporter. He was not directly reporting on the outcome of the Carroll case.
What it all comes down to is whether “rape” is defamatory when it’s used to describe something narrowly defined as “sexual assault” by a single state’s laws. And that’s just not going to be enough to rack up a win for one of the nation’s most inept serial litigants. Trump should just accept the fact that people believe he’s a rapist, even if a jury did not explicitly arrive at the conclusion. His version isn’t any better: all he’s really arguing here is that he should only be referred to as someone found liable for sexual assault. Is that really so much better it’s worth spending thousands or millions of dollars on?
We have pointed out just how ridiculous Elon Musk’s SLAPP lawsuit against the Center for Countering Digital Hate is, so much that I supported the filing of an amicus brief in support of CCDH, even as I find CCDH’s positions and research to be generally problematic and misleading. But, even if their research methods aren’t great, they still deserve their right to speak out, and they should not face ruinous litigation from a petulant CEO who only pretends to support free speech.
“You put that in terms of safety, and I’ve got to tell you, I guess you can use that word, but I can’t think of anything basically more antithetical to the First Amendment than this process of silencing people from publicly disseminated information once it’s been published,” Breyer said.
“You’re trying to shoehorn this theory by using these words into a viable breach of contract claim,” the judge added.
This was exactly the point that was raised in the amicus brief (brilliantly put together by Harvard’s Cyberlaw clinic). That the claims of “breach of contract” were a nonsense attempt to stifle speech, and hoping that by not including a defamation claim it would somehow avoid First Amendment scrutiny. The judge, Charles Breyer, seemed to have figured out ExTwitter’s sneaky plan pretty easily.
Near the end of the hearing, the judge noted that if something is proven to be true a defamation lawsuit falls apart. Why, he said, didn’t Musk’s X bring a defamation suit if the company believes X’s reputation has been harmed?
“You could’ve brought a defamation case, you didn’t bring a defamation case,” Breyer said. “And that’s significant.”
Yeah, because everyone knows that there was no actual defamation.
The judge appeared also to see through the nonsense of the breach of contract claims directly. ExTwitter claims that CCDH should be liable for the loss of ad revenue of advertisers leaving the platform in response to CCDH’s research report. But, the judge pointed out how tenuous this was, to the point of calling the argument “one of the most vapid extensions of law I’ve ever heard.”
But in order to make this case, X had to show the group knew the financial loss was “foreseeable” when it started its account and began abiding by Twitter’s terms of service, in 2019, before Musk acquired the site.
X lawyer Hawk argued that the platform’s terms of service state that the rules for the site could change at any time, including that suspended users whom the group says spread hate speech could be reinstated.
And so, Hawk said, if changes to the rules were foreseeable, then the financial loss from its reports on users spreading hate should have also been foreseeable.
This logic confused and frustrated the judge.
“That, of course, reduces foreseeability to one of the most vapid extensions of law I’ve ever heard,” Breyer said.
There are times, in a courtroom, where you shouldn’t read very much into things a judge says. And then there are times where it’s pretty clear the judge understands just how how wrong one side is. This is one of the latter cases.
According to a friend who attended the hearing (virtually, since it was on Zoom), these quotes don’t even get to how bad the hearing was for Elon. Apparently, at one point the judge asked ExTwitter’s lawyer “are you serious?” which is never a good thing. ExTwitter’s lawyer also had to walk back a few arguments in court, including when the company tried to apply the wrong terms of service to a separate non-profit they had tried to drag into the case. And, finally, towards the end of the hearing, apparently ExTwitter’s lawyer tried to claim that they had pled actual malice (which, you know, is kind of important), only to have CCDH’s lawyer point out that they had not. CCDH is right. You can look at the amended complaint yourself.
None of that is likely to go over well with this judge.
Earlier this year, we wrote about outspoken financier Bill Ackman’s threat to sue Business Insider over articles regarding accusations by the publication that Ackman’s wife, Neri Oxman, had plagiarized parts of her dissertation years ago. The timeline and context of what happened here is important because Ackman continues to ignore it.
Ackman got upset about activity by students at his alma mater, Harvard, in response to the Hamas attacks on Israel on October 7th. He then helped orchestrate a campaign to oust Harvard’s new President, Claudine Gay, because of what he viewed as her insufficient response to antisemitism on campus. While those initial efforts went nowhere, the situation gained more attention when some nonsense peddlers of the grifter class found examples of what they called plagiarism, but which many academics felt were inadvertent errors in weak paraphrasing, or inadvertent failure to properly cite sources.
For example, one of the people Gay was accused of plagiarizing came to her defense, noting that while it may have been technically improper, it was over minor bits and not the heart of what she was writing:
The plagiarism in question here did not take an idea of any significance from my work. It didn’t steal my thunder. It didn’t stop me from publishing. And the bit she used from us was not in any way a major component of what made her research important or valuable.
So how serious a violation of academic integrity was this?
From my perspective, what she did was trivial—wholly inconsequential. That’s the reason I’ve so actively tried to defend her.
This effort continued for some time, with Ackman again being a leading voice, perhaps recognizing that what he failed to accomplish by complaining about her handling of antisemitism, he could eventually accomplish through piling on and promoting the claims of plagiarism. And it worked. Soon after, Gay lost her job as President of Harvard.
Around that time, Business Insider published its first piece about Neri Oxman, Ackman’s wife, noting that her dissertation at MIT was also found to contain some plagiarized passages. The article was pretty explicit that it was not accusing Oxman of some inherent unethical behavior, but rather noting the similarities between what she had done and what Gay had done:
Like Oxman, Gay was found to have lifted passages from other academics’ work without using quotation marks while citing the authors.
Gay’s plagiarism was seen by some academics, including many of those she plagiarized, as relatively inconsequential.
George Reid Andrews, a history professor at the University of Pittsburgh and one of the people Gay plagiarized, told the New York Post that what Gay did “happens fairly often in academic writing and for me does not rise to the level of plagiarism.”
That is, the entire point of the article was to highlight the parallel situations between Gay and Oxman. It was to emphasize that inconsequential copying or inadvertent failure to properly cite something minor in an academic paper happens all the time.
The point was not that Oxman was terrible. The point was to highlight Ackman’s double standard. Indeed, Business Insider wrote an entire article comparing the accusations against both Gay and Oxman while highlighting Ackman’s noticeably different approach to each.
“Part of what makes her human is that she makes mistakes, owns them, and apologizes when appropriate,” he wrote in a post on X following Business Insider’s report on Oxman’s plagiarism.
That’s a starkly different approach from the one he took toward Gay after she stepped down as president earlier this week. At the time, Ackman said she should be fired from Harvard’s faculty entirely because of what he called “serious plagiarism issues.”
“Students are forced to withdraw for much less,” he posted on X. “Rewarding her with a highly paid faculty position sets a very bad precedent for academic integrity at Harvard.”
However, the instances of Oxman’s and Gay’s plagiarism have more similarities than differences, according to experts and an internal analysis.
At no point that I’ve seen in this ongoing ordeal has Ackman acknowledged that. Rather, he has gone on rant after rant after rant, combined with threats to sue people for their free speech (while pretending to be a free speech absolutist), pretending that the point of the Business Insider articles was to smear Oxman to punish Ackman for his support of Israel.
A few weeks ago, Ackman promised to sue and has hired Libby Locke of the firm Clare Locke to issue a massive (and massively ridiculous) threat letter to Axel Springer/Business Insider, demanding corrections and retractions of various articles. It’s a Gish gallop of a threat letter. Responding to every single bit of nonsense in the threat letter is beyond the scope of my time, and even so this article is going to be ridiculously long.
Just as an aside, no one who hires Clare Locke is a “free speech absolutist.” Clare Locke (and especially partner Libby Locke) are immensely proud of their ability to threaten media outlets to kill stories (and they’re not as effective as their media portrayal would have you believe). That’s the opposite of free speech absolutists. They are speech suppressors. Their website kinda brags about this:
Sending a 77-page “demand letter” is ridiculous and suggests that you don’t have a clear ask or a clear explanation. Ackman, over on ExTwitter, admits that the letter was written on purpose to be turned into a complaint:
It will not go unnoticed that the demand letter reads remarkably similarly to the pleadings of a lawsuit. If needed, we can convert the demand letter into a complaint and file a lawsuit, which I hope is unnecessary
The letter is long, repetitive, and silly. It does not engage with the actual purpose of the Business Insider articles, to compare Gay’s inadvertent failures to cite with Oxman’s similar mistakes in a manner that highlights how Ackman’s freakout over Gay suggests a huge double standard. Instead, it opens by arguing that Business Insider and the reporters and editors who worked on these articles are antisemitic and targeted Ackman because of his pro-Israel views.
Ackman’s criticism, particularly of Claudine Gay, the former president of his alma mater, Harvard, did not sit well with Katherine Long (an Investigative Reporter at Business Insider), John Cook (Business Insider’s Executive Editor), and Henry Blodget (Business Insider’s Founder and Chairman), who have publicly expressed anti-Zionist and purportedly antisemitic views.
It then goes on at great length (and great repetitiveness) to claim that it’s not plagiarism if it wasn’t done on purpose. Really.
As confirmed by Business Insider and the common definition of plagiarism, plagiarism requires an intent to steal or defraud. Unintentional citation mistakes and honest errors are not considered plagiarism as the word is commonly understood
Now, there are two major problems with this. First of all, as noted here (but not in anything from Ackman), if that’s the case, then it appears Gay did not plagiarize either. And, again, that was the whole point of the Business Insider articles.
But, secondly, yes, you can absolutely plagiarize without intent to do so. The letter plays a very sloppy game of “use the definition we want at different times throughout our argument.” Note that even in the quote above, Locke’s letter says “as the word is commonly understood.” But… that’s not true. As commonly understood, inadvertent plagiarism… is still plagiarism. It might not be as serious. But it’s still plagiarism.
And the most incredible bit is that the letter admits that itself. Much later in the letter, it argues that Oxman couldn’t have done anything terrible because of MIT’s guidelines on plagiarism at the time. The letter, early on, states the following:
As MIT itself plainly explains in advising students of its academic standards, plagiarism “does not include honest error.” MIT also recognizes that “unintentional” plagiarism is not considered academic misconduct. In other words, honest mistakes happen, but those simple errors do not count as academic misconduct.
But, again, the whole point was that Gay appeared to have committed similar unintentional acts of plagiarism, yet Ackman demanded her head over them.
Either way, later on in the complaint letter, they show snippets from MIT’s guidebook which… read quite differently in context. They do not at all seem to be suggesting that unintentional plagiarism is not plagiarism. Rather, they seem to be stating that unintentional plagiarism is still very much plagiarism, and that’s why one should be very careful to not even engage in unintentional plagiarism. Here’s page 12 of the letter, in which it seems pretty clear that MIT is saying “don’t plagiarize, even if it’s unintentional,” but where Oxman/Ackman/Locke seem to be pretending it’s saying “meh, as long as you didn’t mean it, you’re fine.”
Notice, clearly in there, that MIT is not saying that “accidental” and “unintentional” plagiarism is fine. Both of the clips above are trying to help students understand why accidental plagiarism is still wrong and how they need to learn how to properly do academic writing by citing sources and writing up things by yourself.
Page 13 of the letter provides even more examples of this, where they seem to think it is absolving Oxman and revealing Business Insider’s ill-intent, when it really just seems to show that Oxman/Ackman/Locke don’t understand what they’re looking at:
Those are all clearly explanations for how to avoid that kind of “botched paraphrasing” which it appears both Gay and Oxman may have engaged in.
Notably, this demand letter leaves out the line right after those two screenshotted selections above, which proves that Libby Locke is omitting important context. Here, see it for yourself:
“In any event, even if the plagiarism is unintentional, the consequences can still be very painful.”
And then it explains why it might be painful:
Plagiarism in the academic world can lead to everything from failure for the course to expulsion from the college or university.
Plagiarism in the professional world can lead, at the very least, to profound embarrassment and loss of reputation and, often, to loss of employment. Famous cases of plagiarism include the historian Stephen Ambrose (accusations about six of his books have been made, most famously about The Wild Blue) and historian Doris Kearns Goodwin (who ended up asking the publisher to destroy all unsold copies of The Fitzgeralds and the Kennedys). Such plagiarism may be accidental, but its consequences are the same as for intentional plagiarism.
The threat letter leaves out all of this context and seems to pretend that MIT is suggesting that such unintentional plagiarism is fine. When the very document they’re quoting from says the exact opposite.
And what’s funny is that throughout the 77-page letter, Locke keeps insisting that omissions by Business Insider that distort the meaning of things are clearly defamatory and/or evidence of actual malice. Yet Locke engages in identical behavior.
The next page of the letter actually drives this point home (though again, the letter’s author does not appear to recognize this) by including a screenshot of the MIT Academic Integrity handbook that explains how to avoid “inadvertent plagiarism.”
All of that undermines Oxman’s argument, but the letter seems to think it boosts it. That’s because it confuses what counts as “research misconduct” with what counts as plagiarism. Looking at the MIT documents in context suggests that they are talking about two different things: what counts as plagiarism (which could include accidental or inadvertent copying and missed citations) and what counts as misconduct for which sanctions make sense, which requires intent.
But none of that really matters for the point that the Business Insider piece was trying to make: comparing Gay’s conduct (which Ackman insisted was a horrible, fireable offense) to Oxman’s (which Ackman continues to insist was no big deal).
On the very next page of the letter, it (falsely) suggests all this proves that Oxman’s “inadvertent” failure to properly cite somehow was not problematic. Even as the very documents they screenshot say the literal opposite. It also claims that “quoting one part of an article without quoting another part which might tend to qualify or contradict the quoted part is evidence of actual malice” even though that’s the same thing this letter does in this very section.
Business Insider’s purpose in excluding references to these portions of MIT’s Academic Integrity Handbook and academic misconduct policies in its articles on Dr. Oxman is clear: Including them would have debunked the notion that Dr. Oxman had committed intentional plagiarism and academic fraud, and Business Insider wanted to create the false impression that Dr. Oxman committed intellectual theft.
Business Insider’s wholesale omission of MIT’s policies and procedures contradicting its preconceived narrative was deliberate, and it is further evidence of Business Insider’s actual malice towards Dr. Oxman and Ackman. Indeed, the law holds that “quot[ing] one part of an article without quoting another part which might tend to qualify or contradict the part quoted” is evidence of actual malice. Goldwater, 414 F.2d at 336; see also Eramo, 209 F. Supp. 3d at 872 (“[D]isregard[ing] contradictory evidence” is supportive of actual malice.); Murray, 613 F. Supp. at 1285 (“It would be unjust and nonsensical to allow the defendant to rely on the report for certain purposes and to ignore it for others.”).
Once again, it’s unlikely that anyone with half a brain reading the BI pieces would think they were accusing Oxman of anything particularly nefarious. They were simply comparing what she had done to what Gay had done and noting the similarities.
There’s so much more that’s silly about this threat letter that there’s no way to go through it all, so I’m going to skip some of it and give highlights of other parts.
There’s an entire section whining about the use of the word “marred” in one of BI’s headlines, claiming that because it was only inadvertent, it couldn’t have been “marred.” I shit you not:
Given that the only instances of alleged plagiarism Business Insider identified in this article were only four paragraphs with eight missing quotation marks and one instance in which Dr. Oxman failed to cite an author she cited extensively elsewhere in her 330-page dissertation, it is wildly inaccurate to characterize her dissertation as “marred” (i.e., ruined or spoiled) “by plagiarism.”
Except they’re using a… weird definition of marred. It’s most commonly “damaged or spoiled to a certain extent; made less perfect.” As such, even small defects (such as those described) sure would seem to count as marred. My articles are often marred by typos, but that doesn’t mean that every word is a typo. And, either way, the use of the word “marred” is, in no world, anywhere close to the standards of defamation.
Then we get to the whole “citing Wikipedia” nonsense. Ackman had argued on ExTwitter back when this first came about that at the time of Oxman’s dissertation Wikipedia was still new and there weren’t general agreements on citing it, but that’s… nonsense. On multiple levels. First off, it wasn’t that new. Wikipedia was widely known and widely used at that point. Second, even if there wasn’t agreement on how to cite Wikipedia, that did not change the simple fact that it was still very much widely considered plagiarism to copy directly from it without citation/quotation. The lack of understanding of how to cite Wikipedia is a separate issue from the question of copying without attribution.
I had thought that once a lawyer got their hands on this fight, this argument would die a sudden death, but apparently the law firm of Clare Locke has no problem pushing totally specious arguments, because that makes it in here too:
Business Insider, however, intentionally omitted that MIT’s Academic Integrity Handbook at the time Dr. Oxman wrote her dissertation in 2009 and 2010 did not address—much less require— citation to Wikipedia, which itself is a collaborative resource with no single author to whom ideas could be attributed, and which at the time of her dissertation was of relatively nascent origin. In fact, Wikipedia was so inchoate that MIT had not yet developed or published any guidance on how researchers should use Wikipedia. Only later—several years after Dr. Oxman’s dissertation was published—did MIT revise its Academic Integrity Handbook to include a prohibition on citing Wikipedia for academic work. In 2009 and 2010, when Dr. Oxman wrote her dissertation, no such prohibition existed.
Note the shift here between citing and copying without attribution. Those are two separate things that this letter seeks to conflate. Even if MIT hadn’t published policies on how to cite Wikipedia, it has zero impact on whether or not copying directly from Wikipedia might be considered plagiarism. It still was. And it’s ridiculous to suggest that people didn’t think that to be the case in 2010.
There’s a whole section complaining that BI could not possibly call out Oxman for plagiarism unless it did an “inquiry or investigation into Dr. Oxman’s mental state to support such a finding.” To which I will just say… did Bill Ackman conduct such an “inquiry or investigation into Dr. Gay’s mental state” to support the many statements he made about her alleged plagiarism?
Or do we just admit that the billionaire gets to live by different standards than he seeks to impose on others?
After BI published its initial article, Oxman posted some tweets admitting that she had failed to properly put quote marks in certain sections:
Any reasonable read of this is that Oxman is admitting to not quoting things she should have quoted, which… is plagiarism, even by the definitions that were quoted earlier in the threat letter. Thus, BI published a new article saying that she admitted to plagiarism. The threat letter is apoplectic in insisting that she didn’t admit to plagiarism, and only to omitting quotation marks, which is fucking crazy.
Shortly after the first article was published at 2:28 PM on January 4, Dr. Oxman acknowledged in a post on X that, in “four paragraphs” of her 330-page dissertation, she did not “place the subject language in quotation marks, which would be the proper approach for crediting work,” and in one sentence she paraphrased an author but inadvertently did not cite him. She apologized for these errors. She did not, however, admit to plagiarism, intentional or otherwise. Three hours and 30 minutes later, Business Insider published a follow up article falsely claiming in its inflammatory headline that “Neri Oxman admits to plagiarizing in her doctoral dissertation after BI report.”91
Business Insider knew that when it published this article that its statement was false— Dr. Oxman had not admitted to plagiarism. Business Insider read and included a link to Dr. Oxman’s post in the article, but it purposefully mischaracterized Dr. Oxman’s post in the headline creating the false impression that Dr. Oxman had admitted to intellectual theft.
I’m still amazed at the chutzpah here. I’ve read Oxman’s tweet multiple times, and it’s pretty clear that she is admitting to plagiarism, though saying it was inadvertent. But, again, (1) inadvertent plagiarism is still considered plagiarism (including by MIT) and (2) it’s the same sort of thing that Dr. Gay was accused of, which was the whole point of BI’s efforts.
There’s another whole section on all of the Jeffrey Epstein stuff which I won’t get into (Oxman had a very, very distant connection to Epstein via the MIT Media Lab where she worked, and which Epstein infamously had donated money to, though apparently unrelated to her work). But the letter (which I’ll note claims to be on behalf of Oxman and not Ackman) whines quite a bit about BI stating that Ackman had sought to “pressure” then Media Lab director Joi Ito not to name Oxman in response to a media inquiry. It also whines about BI’s claiming that the Boston Globe had “uncovered” emails between Ackman and Ito, when (according to this letter) Ackman had sent them willingly to the Boston Globe.
But, the emails he forwarded sure do look like “pressuring” Ito. I guess it depends on your definition of “pressure” but the entire point of the email was asking Joi not to name Oxman and giving a bunch of reasons why he shouldn’t. That sure sounds like it meets one of the common definitions of pressure: “the act of trying to persuade or force someone to do something.” The threat letter, instead, seems to think “pressure” must involve threats of some kind, which… is not what the word means. And, remember, the threat letter itself talks about the use of “common definitions” (quoted above).
The letter says that Business Insider “falsely” claimed that Oxman and Ackman (who again, the letter does not purport to represent) “did not dispute the facts” in the BI articles, and then points out that this is false, because… of Ackman’s silly rant about citing Wikipedia:
In just one example, at 9:57 PM on January 5, just a few hours after Business Insider published its article falsely accusing Dr. Oxman of plagiarizing from Wikipedia and other sources, Ackman posted on X disputing that using Wikipedia for definitions is plagiarism. He asked rhetorically, “How can one defend oneself against an accusation of plagiarizing Wikipedia … Isn’t the whole point of Wikipedia that it is a dynamic source of info that changes minute by minute based on edits and contributions from around the globe? Has anyone (other than my wife) ever been accused of plagiarism based on using Wikipedia for a definition?” 110 Among other challenges to Business Insider’s reporting, Ackman directly disputed the notion that Dr. Oxman’s inclusion of definitions from Wikipedia in her dissertation was plagiarism.
But… that’s not disputing the facts. That’s disputing the interpretation of the facts (it’s also silly).
Much of that section is just a hilarious list of Bill Ackman not refuting any of the facts to the actual reporters or editors of the piece, but reaching out to various super rich executives somewhat associated with Business Insider, who assured him they were looking into things. That is not the same thing as “disputing the facts” to the actual journalists. That’s whining to the rich in hopes they’ll smack down the poor reporters who dared to make you look silly.
There are five (five!) pages that are just screenshots of Ackman’s (again, not officially represented in the letter) WhatsApp messages to Axel Springer boss Mathias Dopfner “disputing” the stories, but basically none of what is disputed is actual provably false statements of fact. They pretty much all appear to be differences of opinion on how things were portrayed in the BI stories. That’s not defamation. And it’s not even disputing the underlying facts — which is all BI claimed.
Hilariously, the only response from Dopfner to Ackman is a short email, which does not agree to anything that Ackman claimed. It just says “Thanks for your e-mails. Very helpful input to clarify things during the investigation” and then notes that because Ackman had announced plans to sue BI, his general counsel had (correctly) told him not to communicate with Ackman anymore:
Then we get to “actual malice.” On its website, Clare Locke declares itself “the leading defamation law firm in the United States.” I guarantee you that Libby Locke knows what “actual malice” means in the context of a defamation lawsuit. And it is not “they didn’t like the plaintiff” or “they were biased against the plaintiff.” Yet, Libby Locke seems to not care what the legal definition of actual malice is in their laughably wrong section on actual malice.
Business Insider never had any interest in journalistic integrity or the truth when reporting on Dr. Oxman. From the outset, its reporting was tainted by its progressive political bias and the desire of its anti-Zionist reporters and editors to smear a prominent, Jewish advocate and his family for speaking up against former Harvard President Gay. The Business Insider employees primarily responsible for this attack have a history of unethical conduct and have publicly expressed their anti Zionist and/or purported antisemitic views.
Beyond being fucking ridiculous, it’s also got nothing to do with actual malice. Actual malice means that the statement was made “with knowledge that it was false or with reckless disregard of whether it was false.” Also, “reckless disregard” doesn’t mean that you were just sloppy or lazy. It means that the speaker had serious doubts about the truth of the statements but published them anyway. The Supreme Court has been quite clear that it doesn’t mean biased reporting. And it doesn’t even mean mere negligence in reporting.
For there to be actual malice, BI’s reporters would have to fundamentally know (or have very strong beliefs) that what they were publishing was false, and then publish it anyway. But, they’ve (rightly) stood by their reporting. And Ackman, repeatedly, is only complaining about their interpretation of the facts, not the underlying facts themselves.
The letter then goes on to trash the reputation of Henry Blodget, BI’s founder, who had talked to Ackman early on when Ackman was first freaking out about the stories (hilariously, Blodget suggested Ackman could write for BI at one point, and in return he gets trashed). Blodget is, of course, easy to trash. He somewhat infamously settled with the SEC for publicly pumping up dot-com era stocks, while privately trashing those stocks. Some of us still remember all that.
The letter also tries (pathetically) to trash the reputations of the reporters and editors who worked on the BI stories, including digging editor John Cook’s self-admitted story about how as a teenager in the 1980s he was suspended from high school for publishing an obnoxious underground newspaper (I too published an underground newspaper in high school, and it was also obnoxious, but also I didn’t get suspended, in part because I wrote the back page of the first issue that was an entire article about how the First Amendment works, citing numerous Supreme Court cases on why the school couldn’t take action against those of us who wrote the paper… which was, perhaps, a preview of what my life was to become).
But what does that have to do with actual malice? Fuck all! It’s just Ackman burning bridges for show — and potentially as a threat to try to convince others not to report on his wife, or he’ll trash your reputation too (come at me, Bill).
The letter then moves on to misleadingly claim that Business Insider was trying to get Oxman fired. Again, this misunderstands what seemed pretty obviously to be the point of the articles: to compare Ackman’s response to the accusations around Gay as compared to his wife. The letter makes a big deal of Insider’s reporter, Katherine Long, asking in her initial email to Ackman if he expects Oxman to lose her job (Long, at the time, mistakenly believed that Oxman was still at MIT, when she had left a few years earlier):
In context, it’s obvious why Long asked this question. Since Ackman had pushed so strongly for Gay to lose her job at Harvard, it’s a kind of obvious question for a reporter to ask about Ackman’s wife (who they thought was still at MIT) given the whole point of the exercise was to showcase Ackman’s selective outrage and differential treatment of Gay compared to his wife.
But the letter treats this as an attempt to make Oxman lose her job and seems outraged. Which is fucking hilarious given Ackman’s tirades trying to get Gay fired from her job.
Business Insider’s Coverage Of Dr. Oxman Was Motivated by Its Desire To Get Dr. Oxman Fired by MIT.
Almost no one could possibly think this is what Long was trying to do. It seems blatantly obvious that she was simply seeing if Ackman felt his wife should face the same treatment that he helped engineer for Gay.
There’s also some just incredible hubris in the letter, in that it reveals Ackman petulantly demanding in text messages to Blodget that the articles be taken down while the promised investigation on the reporting occurred (which would be an extraordinary step that would have brought Streisand Effect levels of extra attention to the claims) and Ackman seems to think that BI’s refusal to accede to his demands when Blodget promised he was “working” on the issue is somehow more proof of malice (when the more sensible, and likely accurate, reason is that BI investigated, found that the story still held, and there was no reason to take it down).
There are also about eight whole pages of the letter going on (at ridiculous length) about what an amazing, brilliant, and famous person Neri Oxman is, which is hilarious since when all this started and people pointed out to Ackman that defamation against public figures involves a high bar (that high bar being the real actual malice, not the pretend one in this letter) Ackman tried to argue she wasn’t a public figure:
So, according to Bill Ackman, she’s not a celebrity academic or a public figure, but the threat letter on her behalf has eight pages lauding all of her accomplishments, awards, public exhibitions including at top museums around the world, the description in the NY Times of how she’s “a Modern-day da Vinci” and more. So, I guess they’re not even going to try to argue that she’s not a public figure.
There’s also a ridiculous number of words describing the alleged “harm” all of this has had, failing to recognize that if Ackman hadn’t made such a big deal of all of this, the story likely would have died out after a day or two as people got a good laugh at Ackman’s hypocrisy and moved on. Instead, his continued talking about it, and now sending this letter have only guaranteed that many more people are aware of all of this. If there’s any harm (and that seems unlikely) much of it should be pinned on Ackman’s inability to let this go.
On the final page of this opus, we get the “demands.”
Axel Springer and Business Insider must mitigate the damage they have caused by correcting their libelous reporting, issuing statements setting the record straight, making a sincere and meaningful public apology to Dr. Oxman and Ackman, and creating a fund to compensate other victims of Business Insider’s libelous reporting and to discourage their inappropriate conduct in the future. (Dr. Oxman is seeking no compensation for herself to make available additional resources for other victims.) Failure to take these steps will expose Axel Springer and Business Insider to substantial legal liability and will be further evidence of actual malice directed toward my client.
This is nonsense. I’m quite sure BI’s general counsel is not worried about this. Nothing in the letter indicates anything close to the level that would be defamation. The only real question — and the likely real intent of the letter — is whether or not all the rich folks that Ackman called up and texted during this whole mess, including Dopfner, Henry Kravis, and Axel Spring board member Martin Varsavsky, decide to just go along with this to hush up the mouthy rich guy so they won’t have to deal with more of this nonsense.
At this point, it’s pretty clear that Oxman (and Ackman) have no actual defamation case here. They have a lot of noise and bluster. And sometimes that’s enough to get a publication to back down (which Clare Locke seems to want you to believe they can produce in every case). But it would be a fucking shame and an embarrassment if Axel Springer/BI caved here, and would put all of its future reporting in question by showing that they could be bullied by specious, vexatious legal threats.
In Ackman’s tweet revealing this letter, he claims that he hasn’t sued first because “people we highly respect” had told him that Axel Springer was “perhaps the strongest long-term supporter of the state of Israel of any media organization, and also an important advocate against antisemitism.” What that has to do with anything in the letter, I do not know.
In the end, this is just more censorial bullshit. It’s hilarious that Ackman presents himself as a “free speech absolutist” when he’s doing this shit to seek to pressure (as it’s commonly defined!) BI into removing these stories. It misses the entirety of the point of these articles and pretends they’re about attacking Oxman, when it’s obvious to anyone outside of Ackman’s immediate sphere that the intent was to highlight the very, very different treatment Ackman gives to the accusations against Gay and Oxman.
Indeed, this very letter demonstrates that point to a much greater level. All this letter does is call that much more attention to Ackman’s disgusting double standard. When it’s someone he doesn’t like for other reasons, he’s willing to play up the plagiarism claims and push for them to lose their job. When it’s his wife, he tries to burn down an entire media outlet.
All this letter shows is that Bill Ackman is a censorial hypocrite.
In the fall of 2022 an apparent investor in a cryptocurrency called “Bitcoin Latinum” sued the guy behind the currency, Donald Basile. You can see the whole case here. There has been a bunch of back and forth on the docket, but it appears the remaining parties at some point went to binding arbitration.
The article gives a pretty standard summary of what the lawsuit claimed, and also presented the side of the “Latinum” folks including a quote from the company. Given that the word “Latinum” apparently comes from a currency in Star Trek, and one of the claims in that original lawsuit, by Arshad Assofi, was that Basile had said “Bitcoin Latinum was a project that received $20 million from the producers of Star Trek,” it was only natural for Farivar to ask Paramount about this and get this response:
“No one is familiar with this claim or with this ‘Bitcoin Latinum,’” emailed Jennifer Verti, a Paramount spokesperson. “This is not something that Star Trek is officially involved in at all.”
In the article, Farivar also quoted SEC boss Gary Gensler saying that the crypto world is “rife with fraud, scams, and abuse.” That quote is also straight from Assofi’s complaint. Farivar also made the very factual statement: “The world of cryptocurrency is awash with scammers and companies that don’t have actual products.”
For whatever reason, the corporate entity behind this Latinum thing, GIBF GP, Inc., waited a year and a quarter then last week decided to sue Farivar in the Delaware Court of Chancery, in a ridiculously silly SLAPP suit that only serves to drive that much more scrutiny on Bitcoin Latinum. And, really, it should make everyone question whether or not you’d trust a cryptocurrency that is suing a reporter who merely quoted the lawsuit against them.
In a separate move, it appears the same company has also sued Poker.org and its reporter Haley Hintze over an article she wrote almost exactly two years ago about a different lawsuit that was filed over Latinum. Except, bizarrely, the complaint against Hintze seems to claim that her article was about the Assofi lawsuit, when… it’s not. It’s about a different lawsuit. Also, the Hintze article appears to have been written nine months before Assofi filed his lawsuit.
I’m pretty confused by all this. The lawsuit admits that Hintze’s article was written in February of 2022, and then… that Assofi filed his lawsuit in November:
Time? How does it work. Also, again, the Hintze article doesn’t mention Assofi at all, because he hadn’t yet filed his lawsuit.
It appears that Latinum’s lawyer actually meant to sue over a different Poker.org article, that was published in November about the Assofi lawsuit, but repeatedly claims that the article was published on February 5, 2022, rather than the actual publication date of the article she meant, which was November 21, 2022. Also, Latinum’s lawyer included the February 5th article as the exhibit, rather than the November 21st article. Such attention to detail to talk about the wrong article and include the wrong article as an exhibit. Top notch lawyering.
And, like, the date matters. The statute of limitations for defamation in Delaware, where the cases were filed, is two years. Which means that the original Hintze article, published on February 5th 2022, was already passed the statute of limitations when Latinum sued, claiming to be suing over that article, on February 7th, 2024. Great lawyering work. Just amazing. (For what it’s worth the profile of the lawyer who filed both of these terrible cases claims her expertise is in “estate planning and probate,” which is…. not defamation.)
Speaking of defamation, according to the excellent folks at Chancery Daily, for the most part, libel and defamation are not within the Court of Chancery’s jurisdiction. There are a few very narrow exceptions, that do not appear to have been met here.
Back to Farivar’s case. It’s a clear SLAPP case. Again, Farivar was writing about a filed lawsuit, quoting what that lawsuit said, and making a general truthful statement about the prevalence of scams in the cryptocurrency world. The complaint also says that it’s defamatory because Farivar refers to Latinum as a “fictional” currency in the Star Trek universe. Which… it is?
Notably, Latinum sued Farivar individually, and not his publisher, Forbes, which is also common in many SLAPP lawsuits, where plaintiffs looking to silence reporters will sue the reporters individually rather than the publishers, perhaps hoping that the publisher won’t be able to cover the cost of fighting the lawsuit. It’s also weird because the remedies sought in the lawsuit include demanding that Farivar “remove” the article, which he might not even be able to do as an employee of Forbes.
There are a bunch of other potential problems with the lawsuit. It fails to even mention actual malice, let alone plead how Farivar published his article with actual malice. It tries to pretend that the Delaware jurisdiction is proper based on a very barebones claim that Farivar “regularly does or solicits business, engages in other persistent courses of conduct in the State….” That’s not how that works.
The complaint also admits that both Latinum’s founder, Basile, who is listed as a plaintiff, and Farivar are based in California, which is a good reason to point out that California (with is strong anti-SLAPP laws) are the proper venue for this suit. There’s also an oddity of stating that the allegedly defamatory comments resulted in “damages to their reputation and trade, in an amount well in excess of $75,000.00,” which is… the number you would need to claim damages for getting the case into federal court under diversity jurisdiction, but is irrelevant here in the Court of Chancery, which we already noted almost certainly does not have jurisdiction for a wide variety of reasons.
And, I almost forgot to mention that the fair report privilege exists, and protects journalists from liability for reporting on public documents, such as a lawsuit. While not all states recognize fair reporting, Delaware absolutely does.
I’m sure Basile is unhappy with the Assofi lawsuit, and with it, the news coverage. But that’s how this works. If you get sued, people will write about the lawsuit. It’s not defamatory to do so, even if you don’t like how they covered it. But, also, if you then go and sue reporters for covering your lawsuit with sloppily written complaints, it’s only going to drive that much more scrutiny of whatever it is you’re trying to sell.
There’s always a point where you can stop digging, and if Basile wants to stop digging, it would be wise to dismiss both of these lawsuits, apologize to the reporters, and just focus on whatever thing he wants to build. If he disagrees with Assofi’s claims, he can just say that. He doesn’t need to sue reporters.
Anyway, this is yet another reminder that we need a federal anti-SLAPP law, along with strong anti-SLAPP laws in all 50 states.
Last fall, we detailed the many, many, many, many problems of Elon Musk’s absolutely bullshit ridiculous lawsuit against Media Matters. Again, if you don’t recall, Media Matters found some examples of neo-Nazi content on ExTwitter appearing next to ads from big name brands. Elon got extra mad about this because it also happened a day after he endorsed an anti-Semitic conspiracy theory trope. Either way, it led to many advertisers pulling their ads.
Rather than being a “free speech absolutist” like he pretends he is, Musk decided to sue Media Matters for its free speech. In that lawsuit, ExTwitter admits that what Media Matters saw actually happened (which basically torpedoes the lawsuit). Their complaint was (1) that Media Matters had to take some steps to see those ads, (2) most users would not take those steps, and (3) that people read Media Matters’ article to imply that most users would also experience the same thing (even though Media Matters never actually said that).
That defense would have actually been a useful thing for ExTwitter to just publicly say. A perfectly reasonable and smart response to the Media Matters report would have been, “Hey, so, Media Matters followed a bunch of Nazis and kept reloading until they saw some ads, and that’s something we’re constantly working on and trying to improve for our advertising partners, but it’s an impossible task to make sure that never happens. It’s extremely rare and is unlikely to happen for most people, and we’re continuing to work on improving.”
Or something like that. Instead, Elon decided to sue. In Texas (despite none of the parties being there), while admitting that everything Media Matters wrote was accurate, but they just didn’t like the way that Media Matters went about getting that info and how people interpreted it. But the way that Media Matters got the info (following Nazis and then reloading) is very much allowed by the system. If ExTwitter doesn’t like that, it (1) shouldn’t platform Nazis or (2) shouldn’t allow you to follow Nazis or (3) shouldn’t allow you to reload. But it does all three, so it really can’t complain.
Anyway, Media Matters has now filed its motion to dismiss. I had been a little nervous when Media Matters hired the Elias law firm to handle this, as they’re mostly focused on election law, not these kinds of free speech cases. But they also brought on some excellent free speech lawyers, including Ted Boutrous from Gibson Dunn. It’s a very strong filing.
The biggest and most obvious thing: what the fuck is this doing in Texas:
This Court lacks personal jurisdiction over Defendants Media Matters for America (“Media Matters”), a Washington, DC-based media organization, and its Maryland-based investigative reporter Eric Hananoki. Plaintiff X Corp. (“X”) sues for statements made by Mr. Hananoki in an article published on the Media Matters website. But it is blackletter law that a statement made on a passive website—one that just posts information that people can see—cannot support specific jurisdiction in Texas simply because readers in Texas could access the statement as easily as readers in other states. And this is all X alleges—that it has lost favor with some unspecified number of advertisers and individuals, some unspecified number of which are located in Texas, because of statements Defendants made on the internet.
X does not and cannot allege a single fact supporting jurisdiction over either Defendant. X does not allege that Media Matters or Hananoki are “at home” in Texas. It does not allege that Media Matters or Hananoki performed any act in Texas. It does not allege that Media Matters or Hananoki specifically directed any statement toward a Texas audience, used Texas sources in drafting any statement, or even mentioned Texas in any statement. X has thus failed to carry its burden to show personal jurisdiction over Defendants.
For these same reasons, venue is also improper in this Court. Plaintiffs may sue defendants only in courts where the basic constitutional requirements for personal jurisdiction and the limitations imposed by the federal venue statutes are met. These include, at a bare minimum, adequate contacts with the forum for the defendant to reasonably anticipate being haled into court there. This case does not come close to clearing that threshold. Neither party is based in Texas and the allegations at issue in this case have zero connection to Texas. X has thus failed to provide any convincing justification for litigating this dispute in Texas. On this basis alone, this Court should dismiss the complaint under Federal Rule of Civil Procedure 12(b)(3).
In all reality, the court should dismiss it on this point alone. It’s obvious that the case has no business being in Texas and that the court has no jurisdiction over the defendants’ actions.
But, if the court decides to ignore all that, the underlying case is also bullshit. The claims of contract interference? That’s not how this works:
X’s complaint wholly fails to plead—never mind plausibly allege—basic elements of its claim for interference with contract. See Compl. ¶¶ 42–44 (First Cause of Action). Under Texas law, “[t]he elements of tortious interference with existing contractual relations are ‘(1) an existing contract subject to interference, (2) a willful and intentional act of interference with the contract, (3) that proximately caused the plaintiff’s injury, and (4) caused actual damages or loss.’” Nix v. Major League Baseball, 62 F.4th 920, 934 (5th Cir. 2023) (quoting Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000)), cert. denied, 144 S. Ct. 165 (2023). X fails to adequately plead at least the first three elements.
Off the bat, X fails to allege “an existing contract subject to interference”—the very first element. Nix, 62 F.4th at 934. Indeed, the complaint does not even use the word “contract” until it makes its legal allegations in the First Cause of Action, see Compl. ¶¶ 42–44, and nowhere alleges that any advertisers had any obligation to place advertisements on X for a specified term or up to a minimum spend. Because X has simply “not identified a written or an enforceable oral contract with” any advertiser, there is no basis to infer that X’s advertisers “had a contractual obligation to continue using [X’s] services.” Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 675 (S.D. Tex. 2010). X cannot sustain its first claim without alleging the existence of such a contract. Id. at 674 (“A cause of action for tortious interference with a contract will not lie in the absence of a contract.” (collecting cases))
Merely claiming that certain advertisers purchased advertising space on X in the past—and anticipating they would continue to do so in the future—is not enough to plead an interference with contract claim under Texas law. See Amey v. Barrera, No. 13-01-00130-CV, 2004 WL 63588, at *10 (Tex. App.—Corpus Christi Jan. 15, 2004, no pet.) (concluding “there were no contracts subject to interference” where third parties could “continue buying” products from a vendor so long as they wished but “could change vendors at any time”). X has made no allegation that it had “a legal right to future performance” from its advertisers under a contractual obligation, and instead “just [had] a hope” that advertisers “will continue” to purchase from it in the future. Restatement (Third) of Torts: Liab. for Econ. Harm § 17 (2020). X cannot state an interference with contract claim for “benefits that [X] hoped to receive but on which [X] had no right to insist.”
How about the “business disparagement” claim that some people pretended was a defamation claim. In the complaint, we noted that before the claims, the complaint made it out like this was a “defamation” case, but never actually made a defamation claim. Some people argued that because there’s a “business disparagement” claim that’s the same thing. The two are similar, but they are not the same. And, either way, nothing in the complaint supports a business disparagement claim (which has a very high bar):
X’s business disparagement claim cannot survive because X cannot plausibly allege that Defendants’ statements are false. Broughton, 2010 WL 3056862, at *11. X never claims in the complaint that Defendants fabricated the images reproduced in their articles. Far from it: X expressly acknowledges (as it must) that it is possible for the platform to display advertisements next to extremist content, even as it claims these pairings are “rare.” See Compl. ¶¶ 7, 13, 35; see also ¶ 6 (indicating that one percent “of X’s measured ad placement in 2023 [] appeared adjacent to content [not] scoring above the Global Alliance for Responsible Media’s brand safety floor”).
X’s only quarrel appears to focus on how often these pairings occurred and whether they are “organic,” but nothing in the complaint—let alone the disputed articles—suggests that Media Matters or Mr. Hananoki opined on the overall quantity of pairings. Furthermore, if X’s supposed safeguards worked, id. ¶ 25, it would have been impossible for Defendants to “exploit[] . . . X’s user features” to bring about the pairings, id., since Defendants have no authority or control over X, its algorithm, or its advertisement placement. X’s allegation, therefore, that Defendants “created” the pairings, id. ¶ 26, is simply not plausible.
Also, the whole actual malice thing:
Actual malice requires proof that the defendant made a statement “with knowledge that it was false or with reckless disregard of whether it was true or not.” New York Times, 376 U.S. 254 at 279–80). Even where statements are “not strictly true,” if they are “substantially so and not made with reckless disregard of the truth,” there is no actual malice. BDO Seidman LLP v. Alliantgroup, L.P., No. H-08-905, 2009 WL 1322555, at *12 (S.D. Tex. May 11, 2009).
Given that X does not plausibly allege that Defendants’ statements were false, it necessarily follows that X cannot plausibly allege that Defendants “knew [their] statements were false.” Rimkus Consulting Grp., 688 F. Supp. 2d 598 at 671. But even beyond that truism, X fails to allege any facts that could plausibly support a finding that Defendants acted with actual malice; instead, X relies on nothing more than conclusory statements, contending, for example, that Defendants’ statements were “not true and, Media Matters knew it.” Compl. ¶ 25. But this recitation does “not allow the court to infer more than the mere possibility of wrongdoing” and is not enough to state a proper claim. Moser v. Omnitrition Int’l Inc., 2018 WL 1368789, at *2 (N.D. Tex. Mar. 16, 2018) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
There’s more, but you get the point. The case was garbage from the start, and the motion to dismiss explains why. I’m guessing the most likely move is to dismiss over the jurisdiction issue, followed by Musk appealing to the 5th Circuit, where Calvinball takes over and the court will probably make a mockery of every precedent applicable here, because that’s just how the 5th Circuit works.
Nikko D’Ambrosio has had a pretty rough week, but apparently that’s not going to stop him from texting the court from a new number. You may recall this dude bro from the Chicago area, for his decision to sue basically everyone he could think of after a few women he dated wrote about their experiences with him on the Facebook group “Are We Dating the Same Guy.” We don’t need to rehash just how stupid the lawsuit was, beyond the fact that it included tons of defendants who either appeared to have nothing to do with the case, or who were clearly immune under Section 230 (which wasn’t even mentioned in the complaint).
People in a toxic subreddit who were cheering on the case (including at least a few commenters who appeared to be closely involved with it) kept insisting that the case would be a winner, even if all it did was make the women being sued spend a lot of money and be afraid to criticize dudes online again. Of course, that assumed a few things. Like that the case wouldn’t get immediately thrown out.
Which it did.
Lawyer Ken White, who described this as being one of the most incompetent complaints he’d seen in a while, had predicted that whichever judge got the case was likely to toss it out before any of the defendants needed to do literally anything, because the lawyers (who seem ridiculously out of their depth) messed up the jurisdiction question, by claiming diversity jurisdiction (to get it into federal court, despite being about state laws) but not fulfilling the requirements for diversity (in multiple ways).
The biggest problem (but again, one of many) is that you only get diversity jurisdiction if all the defendants come from a different state than the plaintiff. But in the very complaint, they admit that at least a few defendants are also in Illinois.
And it turns out Ken was exactly right. The case has been terminated before anyone had to do anything.
Plaintiff asserts jurisdiction is proper pursuant to 28 U.S.C. § 1332 for diversity jurisdiction. In his complaint, the Plaintiff alleges he resides in the territorial jurisdiction of the District Court, which is Illinois. However, several of the named Defendants are also Illinois residents. The Court understands “[r]esidency does not necessarily equate to domicile.” Grandinetti v. Uber Techs., Inc., No. 19 C 05731, 2020 WL 4437806, at *4 (N.D. Ill. Aug. 1, 2020) (Chang, J.). However, the Plaintiff does not assert any other basis for his or the Defendants’ domicile besides their residency; therefore, the Court equates the two here….
… Because it is well established that traditional diversity jurisdiction is destroyed when a plaintiff’s and a single defendant’s domicile is the same state, jurisdiction is improper…. Because the Court does not have subject matter jurisdiction over this case, the Court dismisses this case.
But apparently D’Ambrosio is the kind of guy who won’t take no for an answer… even from judges. He’s apparently the kind of guy that when his number gets blocked or his case gets thrown out, he’ll just text from a different number or file a brand new case.
Almost immediately, D’Ambrosio’s very, very, very bad lawyers filed a brand new lawsuit against the same defendants. And how do they get around the diversity issue? By simply removing the admission that some of the defendants live in Illinois, and instead saying “whose citizenship and residence State is unknown at this time.”
Here were some of the defendants in the first case:
And here they are in the second lawsuit, which now includes more other details, but magically forgot where they live. Shocking.
That sure seems like sanctionable behavior by the lawyers. The rest of the new lawsuit is still horrifically bad and confused.
The lawyers try (and I say that very, very, very loosely) to fix some of the other defects of the original lawsuit, but they certainly come off as very clueless lawyers and way out of their depth with basically no experience or knowledge in filing these types of lawsuits, reading all the Reddit comments mocking them, and doing a slipshod job of trying to fix the defects while being too ignorant to understand why those defects aren’t the kind of thing you can just do a rewrite to fix.
For example, this time, they actually try (badly) to plead the factors to qualify as a class action, which they try to break down into “subclasses,” including a defamation subclass. Again, class action defamation is not actually a thing, because defamation requires specific statements made by specific people about specific people, and doesn’t fit as a class action.
They also have finally discovered Section 230, which pretty obviously bars the claims against nearly all defendants. But, just because the lawyers have discovered Section 230, it does not mean they understand it. Because they don’t. They claim it’s an open question whether or not defendants are “speakers” or “publishers” under Section 230, and they think there is some action that can be taken that “breaches Defendants immunity as an internet service provider under 47 U.S.C. 230.” That’s… not how it works.
Hilariously, in the actual defamation claim, they then admit that “defendants are ‘speakers’ or ‘publishers’ within the meaning of 47 U.S.C. 230…” which seems like the lawyers admitting the case is barred by 230, since the whole point of 230 is that you can’t treat third parties as speakers or publishers. And, of course, they still don’t specify what actual statements are defamatory, but rather say that those statements “imply that Plaintiff is dishonest, immoral and/or untrustworthy….” which, um, are all obviously protected statements of opinion.
There’s also a very weak attempt to get around 230 by suggesting that the platform defendants like Meta, GoFundMe, and Patreon somehow “created” the content in question (which they clearly did not). They also say that the “IP” claims they’re making are not barred by Section 230 but (and this is kind of hilarious) they don’t actually make any IP claims.
There’s more, but, no matter what, this is still a very poorly drafted complaint.
Either way, throughout the complaint, the lawyers claim that the statements made about D’Ambrosio really damage his reputation:
Defendants statements have damaged and continue to damage Plaintiff’s reputation in the general public, in their profession, in their church communities, in their neighborhood, and with friends, relatives, and neighbors.
You know what else might damage Plaintiff’s reputation in the general public, in their profession, in their church communities, in their neighborhood, and with friends, relatives, and neighbors? Being convicted of tax fraud.
Chicago-area native Nikko D’Ambrosio made a national media splash earlier this month when he filed a lawsuit against dozens of women who allegedly bad-mouthed him on a tell-all Facebook dating page, describing him as “clingy,” a ghoster and a show-off with money.
Turns out D’Ambrosio’s dating reviews were the least of his worries.
On Friday, D’Ambrosio, 32, of Des Plaines, was convicted in the same federal courthouse where his lawsuit is pending of tax fraud counts alleging he vastly underreported income he’d made distributing “sweepstakes” gaming machines for a company with ties to Chicago mob figures.
So, um, when you’ve just been convicted of tax fraud and your defense consisted of claiming to be “terrible at math,” it’s not clear you have much of a reputation that can be damaged. His lawyer literally called him stupid:
In his closing argument Friday, Grohman told the jury the case was not about greed, “It’s about stupidity.”
I’m really not sure that some woman saying you were “very clingy, very fast” is going to hurt your reputation any more than you’ve already hurt it yourself. And, while the tax fraud situation is probably the bigger deal, refiling the same lawsuit after it was dismissed isn’t going to help his reputation very much either.
Even though the blog is now often given over to “Trump did nothing wrong” posts and suggestions that social media services engage in “censorship” of so-called “conservatives” (and don’t even think about wandering into the comment section), Eugene Volokh’s Volokh Conspiracy still surfaces some very interesting cases.
And this one has a lot going on. I’ll try to summarize it as briefly as I can, but it will probably stretch the definition of “brief.” The background takes up a lot of the run time of this 42-page opinion [PDF] from the Utah Court of Appeals.
This is the brief summary the court has provided:
In March 2019, the Utah Jazz were playing a game against the Oklahoma City Thunder. Midway through the second quarter, Russell Westbrook, the Thunder’s point guard at the time, had a verbal altercation with Shane Keisel, a Jazz fan who was sitting next to his girlfriend Jennifer Huff just a few rows up from the court. In the initial moments of this altercation, Keisel said something to Westbrook that included the phrase “on your knees.” Westbrook responded profanely and aggressively, and his response was caught on video and then circulated on social media before the game had concluded. When Westbrook was asked about the altercation in a post-game interview, Westbrook said that he thought Keisel’s initial comment to him was “racial.” Westbrook also said that Keisel’s “wife” had made a similar comment.
Somehow, this incident — which was clearly (and admittedly) instigated by Shane Keisel — became the basis for Keisel’s libel/intentional infliction of emotional distress against the Utah Jazz and Russell Westbrook himself.
But there are a whole lot of interesting (and inadvertently comical) details left out of this summary. First, there’s Keisel’s statement to Westbrook, which could have been taken in multiple ways, none of them benign.
In a subsequent deposition, Keisel testified that he had said to Westbrook, “Bro, sit down and ice your knees.” Keisel also testified that Westbrook responded, “This is heat. This is heat. Know what the fuck you’re talking about if you’re going to talk to me,” to which Keisel said that he replied, “Well, heat them up, you’re going to be on them a lot later.”
After that comment, Westbrook responded with one of his own, which was captured by another fan’s cell phone.
I’m going to say one thing. I’ll fuck him up. . . . I promise you. You think I’m playing. I swear to God. I swear to God, I’ll fuck you up, you and your wife, I’ll fuck you up, . . . I promise you on everything I love, on everything I love, I promise you.
Following this, Keisel was issued a warning card by arena security for “directing remarks at Westbrook.” Keisel returned to his seat, but not before holding the card above his head to the cheers of Jazz fans seated near him.
Then Keisel asked the fan to send him the recording of Westbrook yelling at him. He sent it to someone else and before the game had ended, the video had gone viral. Keisel participated in interviews with both a local station (KSL) and ESPN. In these interviews, Keisel claimed he’d said nothing inappropriate and that Westbrook had “just went nuts.” He also pushed the narrative that Westbrook was “abusive” towards fans of opposing teams.
Westbrook was interviewed as well. It was this interview that exposed Keisel as the provocateur, with Westbrook stating the “on your knees” comment sounded “racial” to him. Keisel, however, told KSL he’d said nothing offensive to Westbrook.
Keisel was then contacted by the General Counsel of the Utah Jazz, which was investigating the confrontation. When speaking to a lawyer, Keisel decided to start telling the truth.
During this phone interview, Keisel said that he had told Westbrook to “sit down and . . . heat [his] knees because [he was] going to be on them later.” Keisel said that what he meant was that Westbrook would be using his knees later to “win the game.” But Keisel also admitted that Westbrook “could have taken it as, oh, yeah I was telling him that he was going to suck some dick or whatever. I get that there could be sexual type of things. But racism? Come on, man.”
The details of this interaction were confirmed by other fans, who spoke to the team’s administration about the incident. Every one of them stated that Keisel had told Westbrook to “get on [his] knees.” The investigation concluded with Keisel receiving a lifetime ban from the arena.
His ban was referenced in the team’s press release (which did not use his name). An email sent to season ticket holders about the ban pointed out the team had zero tolerance for “hate speech, racism, sexism, or homophobia.” A statement made by the team’s owner to the crowd at the next home game contained a single sentence that forms the basis for Keisel’s defamation claims:
This should never happen. We are not a racist community.
After dining out on the fake story of Westbrook’s supposedly unprovoked attack for a couple of days, public opinion swung the other way once the whole story was out. According to Keisel, he started receiving “hateful and threatening phone calls and emails” and was terminated from his position at a local car dealership. He also was targeted by negative customer reviews and fake social media accounts that made him appear to be a racist.
The lower court tossed the defamation claims against Russell Westbrook and the Utah Jazz. As for Westbrook, the court said the statement made by Westbrook stated his opinion of the things Keisel said to him and, at no point, did he use Keisel’s name (something he could not have possibly known at that point). Opinion is, of course, protected by the First Amendment. And it was clearly opinion because Westbrook made that much explicitly clear in his statement, which is reprinted in full in the opinion:
[F]or me that’s just completely disrespectful, ah to me, ah, I think it’s racial.
“For me.” “To me.” “I think.” All of these clearly indicate Westbrook is expressing his opinion about what Keisel said to him. Even Keisel admitted the same phrase could be taken as sexual, indicating several plausible interpretations were possible by whoever heard what was said.
The same goes for the team. Statements made about seemingly racist behavior (again, without referencing Keisel directly or by name) were statements of opinion based on the information the team had gathered during its investigation. Once again, opinions are protected speech, even when issued by commercial organizations.
Now, there’s a reason the court included Russell Westbrook’s entire statement. Because if it hadn’t, the only version would have been Keisel’s version, which was selectively edited and rearranged to make things look a lot more libelous.
In his opening brief… Keisel provided us with a block quote that purported to be Westbrook’s statement—but Keisel’s proffered quote made several alterations to what Westbrook had actually said. For example, while Westbrook made a few references to his “family” in sentences that were spread out among his other comments, Keisel took the references to Westbrook’s family and lined them up together at the beginning of the block quote, and he did so without giving us any indication that those statements were being presented out of sequence. Also, in his actual statement, Westbrook said “I’m just not going to take disrespect for ah, my family” a single time in the middle of the statement. In Keisel’s recounting, however, this was the very first thing that Westbrook said (thus seeming to place this assertion into a position of more prominence), and Keisel then included that same sentence a second time later in the block quote, thus falsely suggesting that Westbrook had said it twice. There were other changes too, most notably in rearranging the sequencing of various sentences from Westbrook’s statement.
These alterations may seem like a trifling matter, and Keisel’s counsel tried to downplay them at oral argument. But in the context of this case, they’re not trifling at all. For example, one of the pieces of Keisel’s defamation-by-implication claim is the assertion that Westbrook falsely claimed that Keisel had said something about Westbrook’s family. But Keisel has now rearranged the very statements that Westbrook made that referenced his family. At the risk of stating the obvious, a sentence’s meaning will naturally be derived in no small measure from the sentences that surround it. By splicing and then rearranging what Westbrook said, Keisel misrepresented the text and indeed the nature of Westbrook’s statement. And we can’t help but note the irony: Keisel claims that Westbrook defamed him by saying false things, but Keisel provided this court with a false account of what it was that Westbrook said while advancing that claim on appeal.
Wow. You definitely shouldn’t do that, no matter what kind of case you’re bringing. But when judges start talking about irony, you’ve clearly fucked up.
Speaking of fucking up, Keisel’s arguments are so desperate he actually makes it appear as though he would have preferred being referred to as a homophobe.
The March 12 press release said nothing aboutracism. Rather, it simply said that Keisel was being banned for “excessive and derogatory verbal abuse directed at a player.” As noted, Keisel admitted to General Counsel that his comments to Westbrook could have been interpreted as “sexual type” insults. He then admits in his brief that his words to Westbrook were “somewhat capable of being misinterpreted” as being “sexually” derogatory, and he faults the Jazz for “falsely label[ing] the incident racial instead of homophobic.” Given his own admissions, no reasonable person could think there was anything false, much less defamatory, about this press release.
There’s a lot of inept litigating going on here. But the most baseless of the assertions are the intentional infliction of emotional distress claims against Westbrook, predicated solely on Westbrook’s “I’ll fuck you up” response to Keisel’s “get on your knees” provocation.
Keisel and Huff repeatedly assert that they felt physically threatened by Westbrook’s outburst. But when confronted with claims like these, a court must be capable of distinguishing between actual threats of violence and something that was merely profane posturing. Here as elsewhere, context is key. As recognized by the district court, Westbrook’s outburst occurred “in the presence of security personnel and thousands of spectators,” and Westbrook was separated from Keisel and Huff by several rows of spectators. As also recognized by the district court, Keisel and Huff then “remained in the Arena to watch the rest of the game,” a choice that belies any suggestion that they really thought there was a “real risk that Westbrook would make good on his threat.”
A complete loss for Keisel. Consecutive shutouts, to be more accurate.
This doesn’t look like someone seeking actual redress for actual harms. This looks like someone whose gravy train swiftly morphed into a shitshow and now wants someone else to foot the bill for his self-inflicted wounds. Even if this had been a closer call, Keisel still would have lost. Having granted interviews with two new outlets — one of them with international reach — he thrust himself into the public spotlight, making it impossible to proceed with the lower libel standards afforded to truly private citizens.
The whole opinion is a fun read and a pretty wild ride. If nothing else, it would make a useful appendix for “The Perils of Being an Asshole,” a book someone should write just for people like Mr. Keisel.
Dating can be difficult, but there are certain things you can do to not make things worse on yourself. Don’t be a creep. Be kind. Take no for an answer. Actually listen to the people you date. I mean, that’s kinda the standard stuff.
Nikko D’Ambrosio was apparently unable to follow at least one (and possibly more!) of those simple rules. Nikko, a 32-year-old Chicago man (old enough to know better), apparently dated around a bit, then lost his shit when he discovered that some of the women he dated went to the Facebook group “Are We Dating the Same Guy” to offer what were mostly pretty mild complaints about him.
“Very clingy very fast,” the woman commented. “Flaunted money very awkwardly and kept talking about how I don’t want to see his bad side.”
More screenshots showed the woman — who commented as an anonymous member — claimed that after she blocked D’Ambrosio’s number, he used a different number to send her a text in which it appears he attacked her appearance.
Nikko didn’t too much like this. And the guy once described as “very clingy very fast” who allegedly told someone you “don’t want to see his bad side” showed off his bad side in filing this very obvious SLAPP suit against basically anyone he could think of. There are 56 total defendants, including 29 women (some of whom are just relatives of the people he’s actually mad at). There are also 22 variations on Meta/Facebook. While the company has multiple corporate entities, you do not need to sue them all. For good measure, he also sued Patreon and GoFundMe, because why not?
It’s not at all clear why he sued all of those defendants. Most of the individual defendants are not clearly connected to this case. The case only names one woman who he says made defamatory comments about him (they’re not, but we’ll get to that). The rest are just… thrown in there and never explained. Did they like or share the original comments? Who knows. It does appear he sued family members of the main woman he’s mad at, again, for what?
There are so, so, so many problems with the lawsuit I’ve literally restarted this paragraph about six times as I change my mind on which to cover first. But let’s start here: Section 230. As far as I can tell, D’Ambrosio’s lawyers have never heard of it. The complaint doesn’t address it. But it easily bars the lawsuit against all of the many Facebook defendants, as well as Patreon and GoFundMe. He also sues AWDTSG Inc., which is apparently a company that helps to run a series of local “Are We Dating the Same Guy” groups on Facebook, which is what Nikko is particularly pissed at.
Section 230 says that for things like defamation, you get to sue the party who said the actual defamatory thing, not the website that hosts the speech. Should the case even get that far (and it’s not clear that it will), all the Facebook/Meta parties, GoFundme, Patreon, and AWDTSG will easily get their cases tossed on 230 grounds. Having a lawyer file a lawsuit like this without understanding (or even attempting to address) Section 230 seems like malpractice.
Indeed, the lawyers who filed this lawsuit, Marc Trent and Dan Nikolic, kind of parade their ignorance. In the lawsuit they claim that because of “Defendants content moderation responsibilities” they would have had to “review” the posts, and that makes them liable for the alleged defamation. But, um, Section 230 was passed directly to deal with exactly that scenario, and to say that, no, reviewing posts doesn’t make you liable.
And Section 230 protects not just “interactive computer services” but “users” who pass along third party content. So even if he’s suing people for sharing or liking the comments he’s mad about, all of those defendants are protected by Section 230 as well.
It’s stunning that the lawyers in question seem wholly unaware of this.
Next up, defamation. Nothing in the suit appears even remotely close to defamation. The statements all appear to be statements of opinion about what kind of creepy jerk Nikko is. Sorry, Nikko, people are allowed to have opinions of you. That’s not defamation. Nearly all of the statements are clearly opinion statements. And, no, it may not feel great, but opinions that you’re “very clingy, very fast” are not defamatory.
Also, in a defamation suit, you plead which statements were defamatory, including why they are false and defamatory. This complaint does not do that.
Next, they’re trying to use Illinois’ brand new (just went into effect this year!) “doxxing” law, claiming that talking about him and posting his picture violates the law. Now, I think there are some potential 1st Amendment issues with that law, and they’re really driven home by using it here. But to try to make sure that this law is on the correct side of the 1st Amendment, it says that the law is not violated when the speech in question is “activity protected under the United States Constitution,” and boy, lemme tell ya, calling a dude “very clingy” sure qualifies.
There are a bunch of other pretty big legal problems with the lawsuit that are just embarrassing. Ken “Popehat” White covered many of them in his post on this subject. The big one, suggesting that the lawyers have little (if any) familiarity with federal court, is that to file in federal court over state law claims, you have to show “diversity,” meaning that the parties in the case are all in different states. And White notes how badly they fucked that up:
D’Ambrosio’s lawyers assert diversity jurisdiction but make an utter dumpster fire out of it. They admit that both D’Ambrosio and at least one of the defendants come from Illinois, which defeats diversity jurisdiction. They admit they don’t know what state a bunch of the defendants come from. They identify a bunch of the defendants as limited liability companies, but don’t plead the facts necessary to identify those entities’ citizenship for purposes of diversity. This is the kind of thing that makes federal judges issue orders of their own accord saying, in judicial terms, “what the fuck is this shit?”
Also, the lawyers claim it’s a “class action” lawsuit, and are actively seeking to recruit more plaintiffs on Reddit, naturally (where — hilariously — the person who originally posted the topic asked the lawyers if they wanted him to start a GoFundMe, apparently not realizing GoFundMe was one of the defendants in the case). Class action defamation lawsuits aren’t really a thing, because for it to be defamation it has to be a statement about a specific person, and the specifics matter. But even beyond that, if you’re filing a class action lawsuit, you have to take some steps, and as White points out, these lawyers didn’t do that:
The caption of the lawsuit proclaims that it’s a class action, and D’Ambrosio’s lawyers have made comments suggesting that they see themselves as suing on behalf of “victims” other than D’Ambrosio. But other than the caption, the lawsuit contains not a single relevant allegation about being a class action. It doesn’t plead any of the factors necessary to qualify as a class action. It’s also obviously unsuited to be a class action: a class action requires a pool of plaintiffs with factually and legally similar claims, but defamation claims are by their nature very individual and context-specific, and each aggrieved man’s case would be very different depending on what was said about them.
White notes that the lawsuit is so badly drafted that he expects it may get dismissed just on the jurisdictional problems without defendants even having to file anything. He also suggests it’s so bad that it could lead to sanctions from the judge.
But, also, this is exactly the kind of case for which I coined the term Streisand Effect nearly twenty years ago. Doing this kind of shit won’t protect your reputation, it will destroy your reputation. And, again as White points out, a good lawyer would warn you of that before filing this sort of lawsuit. Whether or not they warned him about it, the lawsuit has been filed and now the allegedly “very clingy, very fast” guy who might be “very awkward” is, well, having his reputation spread pretty far and wide.
And there are many, many more. So rather than just the types of people who hang out on the “Are We Dating the Same Guy” Facebook groups, now many, many, many more people — some of whom I’d assume are in the dating pool in the Chicago area — are aware of Nikko D’Ambrosio and his reputation. And not just his reputation for being very clingy, very fast, but his reputation for filing bullshit SLAPP suits to try to silence women for expressing their opinion of him.
Hopefully the judge does dump the case. While Illinois does have a decent anti-SLAPP law (which would clearly apply here), the 7th Circuit has suggested it does not apply in federal court (of course, because of the jurisdiction issues, this case doesn’t apply there either, but… whatever).
More importantly, this is a case that demonstrates yet again why Section 230 is so important to protect people against harassment like this very lawsuit. Without Section 230, it becomes way easier to abuse the legal system to try to silence women who point out that you’re a creep. Section 230 protects that kind of information sharing.
The whole case is a mess of epic proportions. It’s a lawsuit that never should have been filed, but now that it has, congrats to Nikko D’Ambrosio for making sure every dating-eligible woman in Chicago knows to avoid you.