Devin Nunes Has Filed A Second Bullshit Defamation Lawsuit Telling You All About A News Article He Doesn't Want You To Read

Defamation

from the has-devin-nunes-read-the-1st-amendment dept

It appears that Devin Nunes wants to become the new poster-child for filing bullshit SLAPP suits to silence and intimidate his critics. Just a few weeks after filing an obvious SLAPP suit against two satirical Twitter accounts, Republican strategist Liz Mair, and Twitter itself, Nunes is back in court again, suing news giant McClatchy and Liz Mair again. The first lawsuit was for $250 million. This one is for $150 million. Both are SLAPP suits that seemed designed to shut up his critics — especially Mair. Nunes is represented by the same lawyer, Steven Biss, in both cases (Biss has, well, a colorful history).

The latest lawsuit is as equally ridiculous as the first. It is mostly about the very same article that was central to the first lawsuit, an article by The Fresno Bee (a McClatchy-owned newspaper), talking about how a winery that was partly owned by Nunes was involved in a scandal involving cocaine and potentially underage prostitutes on a yacht. The McClatchy article has (from its initial publication), made clear that Nunes’ investment in the winery doesn’t involve any role with the winery or any management functions:

“Rep. Devin Nunes is one of a few friends (Baggett) invited to invest in the winery in 2005. None of the investors has ever been involved with the management of the company. Robin is the sole managing partner and ultimate decision maker at Alpha Omega,” Carter said.

The article has also always made clear that Nunes, as an investor, was unlikely to have any knowledge of the questionable activities associated with the winery:

Limited partners are only liable for the debts equal to their investment in the company, and typically have “little knowledge or participation in the activities of the partnership,” according to the California Tax Service Center.

But you wouldn’t know any of that from reading the lawsuit, which reads like a conspiracy theory.

Throughout 2018, McClatchy and its reporter, MacKenzie Mays, acting in concert with a Virginia political operative and her handlers, schemed to defame Plaintiff and destroy his reputation. The central purpose of the scheme was to interfere with Plaintiff?s Congressional investigation of corruption by the Clinton campaign and alleged ?collusion? between the Trump campaign and Russia during the 2016 presidential election. Using the enormous power of McClatchy?s nation-wide resources, McClatchy and its co-conspirators relentlessly attacked Plaintiff both in print and digitally ? falsely and maliciously accusing Plaintiff of horrible crimes and improprieties, falsely attributing to him knowledge he did not have, implying that he was involved with cocaine and underage prostitutes, and imputing to Plaintiff dishonesty, unethical behavior, lack of integrity, and an unfitness to serve as a United States Congressman. Defendants? statements were knowingly false and grossly offensive. They evince a heedless, palpable and reckless disregard for the truth.

So, a few things about this. First of all, it’s not true. As noted above, the article never even came close to implying he had knowledge of the cocaine and underage prostitutes — and flat out said the opposite was likely true. It’s a fascinatingly stupid strategy to make claims in your defamation lawsuit that are literally contradicted in the article you’re suing over.

As lawyer Max Kennerly points out, the lawsuit is so stupidly bad, that it claims that the McClatchy reorter, Mackenzie Mays, “chose to emphasize the words “woman,” “Devin” and “cocaine.” Except, that’s not true. The only reason those words are highlighted is because that’s how Twitter’s search function works. If you search for certain words, Twitter shows them to you in bold. It was not the original tweet. Here’s the way it’s shown in the lawsuit, with those words bolded:

Here’s the actual tweet, which shows those words are not bolded:

And… here’s how that very same tweet appears if you search on Twitter for “woman, devin, cocaine”:

In other words, it sure looks like Nunes and/or Biss just did a search on “woman, devin, cocaine” and stupidly assumed that because Twitter bolded the search terms, that Mays herself had done so in her tweet. This is stunningly stupid.

And that’s not all that this lawsuit gets so incredibly wrong. The lawsuit repeats over and over again that the article suggested Nunes “was involved” in the event on the yacht, even though the article explicitly states otherwise. In trying to claim that people took the Fresno Bee article to mean that Nunes was involved with the party, it points to a reporter from NBC News, Kasie Hunt, saying that “the defamatory meaning of the article was clearly understood by all who read and saw McClatchy’s publication,” and then uses Hunt’s tweet as proof that people took the article to mean Nunes was involved. Except the very tweet by Hunt that is included in the lawsuit flat out states that “Nunes is totally uninvolved in day to day decisions.”

In other words, Nunes’ complaint’s own “evidence” that readers took the article to mean that Nunes was involved literally disproves that by saying he was not involved.

There are some later claims that suggest the original Fresno Bee article had inartfully worded a sentence regarding another controversy at the winery, involving selling wines to Russian clients, in manner that could confuse some readers about the timing of those sales. Specifically, the article originally stated: “Nunes ties to Alpha Omega made national headlines last year because it was discovered the winery sold wine to Russian clients while the congressman was at the helm of a federal investigation of Russian meddling into the presidential election….” The inartful wording is that this sentence could be read to suggest that the wine sales happened while Nunes was helming the investigation. But it could also be read (accurately!) to suggest that the “national headlines” about this story came about while he was helming the investigation. The Fresno Bee later made a few edits to clarify that sentence. Writing a poorly written sentence which could have multiple interpretations (none of which would actually be defamatory) is not defamation. The lawsuit even claims that the Fresno Bee editing that sentence to clarify it without adding an editor’s note is somehow “perpetrat[ing] a fraud on its readers.”

Other claims are equally bizarre. The lawsuit says that when the Fresno Bee’s exec editor, Joe Kieta, stated that the paper “had never had to issue a retraction on its coverage of Nunes,” that was “deceitful” because of the clarifying edit discussed above. The lawsuit really tries to claim that a clarifying edit is somehow proof of nefarious intent, rather than just a confusingly worded sentence which can easily be read in two different ways, which the paper quickly changed to clarify.

As for this second attempt at suing Mair, the lawsuit again makes bizarre claims:

Prior to March 19, 2019, Mair?s username on Twitter was ?BrandValue$4B?. After Plaintiff filed suit against Mair and others in the Circuit Court for the County of Henrico [Nunes v. Twitter et al., Case CL19-1715], Mair changed her username to ?BeingSuedByDevinNunes?. Mair is a political operative and a digital terrorist for-hire. Her job on behalf of her benefactors is to target the opposition, carry out smear campaigns in coordination with third-parties in Virginia and elsewhere in the United States, and, in the process, to create extreme negative publicity for the targets, in this case Plaintiff. Mair is conscious that Twitter is an echo-chamber. She intentionally changed her identity on Twitter to exploit Plaintiff?s name solely to obtain more followers and to maliciously increase the audience, scope and breadth of her false and defamatory statements.

It takes quite a lot of chutzpah to (1) file a bogus SLAPP suit against a critic, and then (2) file a second such SLAPP suit against the same person and argue that her calling attention to the first bogus lawsuit is itself “malicious.”

Most of the other claims in the lawsuit are equally bizarre. It argues that the Fresno Bee’s Editorial Board suggesting that Nunes should have responded to questions about the yacht/cocaine/prostitutes story is “defamatory by implication.” It says that other Fresno Bee stories by Mays about ethics complaints filed with the Office of Congressional Ethics (about Nunes’ investment in the winery) were defamatory as well. The lawsuit literally states that “McClatchy had no business republishing the ADLF ethics complaint.” It says similar things about other such complaints, including arguing that they were “total shams.” Apparently Nunes thinks that he’s allowed to dictate McClatchy’s editorial policies and that no one is allowed to even write about ethics complaints if Nunes personally deems them to be shams filed by “left-wing” or “left-leaning” groups.

Remember, this is the same Congressman who just a few weeks ago voted for a House Amendment about how free speech should be supported. And now he’s suing for $400 million over some critics.

The lawsuit also asks for an injunction ordering “McClatchy to deactivate all hyperlinks to all online articles and all tweets, retweets, replies and likes by McClatchy or any of its agents that contain false and defamatory statements about Nunes.” Except, tons of defamation case law have made it clear that such an injunction is unconstitutional. And while there are a few courts that have recently tried warming to the idea of injunctions around defamatory content, they are not that widespread, and the injunctions tend to be very, very limited. For the most part, though, defamation cases can’t get injunctions — just monetary damages.

Either way, this is another SLAPP suit and another attack on free speech by Nunes. If Virginia actually had a strong anti-SLAPP law, one would hope that Nunes would end up on the hook for the legal fees here. Unfortunately, while Virginia recently updated its anti-SLAPP law, it doesn’t act the way most anti-SLAPP laws act — pausing the expensive parts of the lawsuit, and it doesn’t require that the plaintiff in the SLAPP suit pay the legal fees of the defendant (though, it does allow the court to decide to award attorneys’ fees — so it’s still a possibility).

Still, Devin Nunes, as a sitting Representative in Congress, who has taken an oath to defend the Constitution, is making a total mockery of the First Amendment of the Constitution in suing his critics for clearly protected free speech.

Filed Under: defamation, devin nunes, free speech, liz mair, steven biss, tweets, winery
Companies: fresno bee, mcclatchy, twitter

UK Now Proposes Ridiculous Plan To Fine Internet Companies For Vaguely Defined 'Harmful Content'

Legal Issues

from the what-the-what? dept

Last week Australia rushed through a ridiculous bill to fine internet companies if they happen to host any “abhorrent content.” It appears the UK took one look at that nonsense and decided it wanted some too. On Monday it released a white paper calling for massive fines for internet companies for allowing any sort of “online harms.” To call the plan nonsense is being way too harsh to nonsense.

Theresa May herself announced the plan in a video that she posted to the very same social media she insists is harmful to children, because consistency is not a strong point of people looking to shackle the internet:

If you watch that video, she literally pulls out a “but think of the children” argument, insisting that social media must be tamed into stopping “harmful” content. Of course, what she leaves out is that most of the “harmful” content she’s upset about is perfectly legal. And, much of it is available not just via social media. But, don’t worry about that: this is all about a moral panic around social media.

The plan would result in massive, widespread, totally unnecessary censorship solely for the sake of pretending to do something about the fact that some people sometimes do not so nice things online. And it will place all of the blame on the internet companies for the (vaguely defined) not so nice things that those companies’ users might do online.

The basic plan is the kind of nonsense people come up with when they don’t have the slightest clue how the internet (or human beings) actually work. It would establish a new regulator who would come up with a “code of practice” for internet companies (broadly defined) requiring them to have a “duty of care” to magically stop basically any (ill-defined) bad behavior online. The regulator could then massively fine any internet company that breaks its nonsense rules. The rules appear to be totally vague and would require blocking “harmful content” even if it’s perfectly legal just because someone says its bad. Failure by companies (after being fined) to wave a magic wand and stop bad stuff online could lead to full site blocking by ISPs to access such sites.

There are so many bad ideas packed into this white paper, it’s legitimately difficult to know where to start. But, let’s start with this. Among the content that will not be allowed is trolling. Really.

Cyberbullying, including trolling, is unacceptable. Being bullied online can be a deeply upsetting experience, particularly for children or other vulnerable users.

How will internet companies be forced to deal with trolling (which is not at all defined in the paper). Well, apparently the new regulator will “set out steps that should be taken” to “tackle cyberbullying.” What does that actually mean? Who the hell knows.

There’s also a special section about preventing people from saying mean things to public figures. Seriously.

As set out in Box 14, those involved in public life in the UK experience regular and sustained abuse online, which goes beyond free speech and impedes individuals? rights to participate. As well as being upsetting and frightening for the individual involved, this abuse corrodes our democratic values and dissuades good people from entering public life

Basically, if you’re famous, the UK wants to force internet companies to stop anyone from ever being mean to you. Poor famous people.

And, of course, there’s a whole “fake news” section, which ignores how basically every anti-fake news law is actually being used to censor government critics.

Companies will need to take proportionate and proactive measures to help users understand the nature and reliability of the information they are receiving, to minimise the spread of misleading and harmful disinformation and to increase the accessibility of trustworthy and varied news content.

At the same time, the very same section says that companies also have to have some sort of bogus “fairness doctrine” to promote diverse viewpoints:

Promoting diverse news content, countering the ?echo chamber? in which people are only exposed to information which reinforces their existing views.

What if the information countering the echo chamber is bogus propaganda and disinformation? Well, then this part of the law would seem to contradict itself. Good luck sorting it out everyone!

Also no longer allowed: any depiction of violence or glamorization of weapons.

Violent content ranges from content which directly depicts or incites acts of violence, through to content which is violent with additional contextual understanding or which is harmful to users through the glamorisation of weapons and gang life.

As far as I can tell, war films would no longer be allowed under this rule. Or boxing matches. Or, really, something like this:

Of course, that’s not all. The report includes a table of “online harms” which is broad and without much in the way of definition:

If that seems vague, it’s by design. And, they make it clear that anything else can be added at any time:

This list is, by design, neither exhaustive nor fixed. A static list could prevent swift regulatory action to address new forms of online harm, new technologies, content and new online activities.

Yeah, that’s an open invitation to censorship.

And, no this is not just targeting large sites. As UK lawyer Graham Smith points out, under the terms of the proposal, any internet blog with comments is subject to the law. It literally says this in section of 4.2:

There are two main types of online activity that can give rise to the online harms in scope or compound their effects:

• Hosting, sharing and discovery of user-generated content (e.g. a post on a public forum or the sharing of a video).
• Facilitation of public and private online interaction between service users (e.g. instant messaging or comments on posts).

And, of course, as Thomas Baekdal points out, blaming the internet companies is completely ridiculous in this situation. The law doesn’t apply to other sources of similar content, such as UK news companies (so long as they don’t have comments on their stories), even if they post the exact same content. As Baekdal notes, more people saw video clips of the Christchurch massacre when various UK tabloids published those clips than those who watched it on Facebook. But the law applies to Facebook, not the UK tabloids.

Again, that’s because this is a moral panic and an attack on internet companies, not anything resembling sensible thoughtful policy.

Not surprisingly, the report also uses dodgy “facts” to support the need for such a ridiculous law. In the “foreward” to the report, written by MPs Jeremy Wright and Sajid Javid (a guy who’s been spewing nonsense about the internet for years), the following claim is made:

Two thirds of adults in the UK are concerned about content online, and close to half say they have seen hateful content in the past year

The first part is nonsense driven by fear mongering by the media and the likes of Javid. It’s meaningless to say people are concerned if the facts don’t actually support any reason for them to be concerned. But that second part is even more head-scratching. Graham Smith has asked the government for a source for that stat, but appears to suspect that it comes from a ridiculously misleading Ofcom study where the “harmful” content includes “spam emails,” “targeted advertising,” “bad language” and “offensive language.”

This is pure moral panic. And it will do a few horrible things. First, it will destroy the internet industry in the UK. London had built itself up as a digital hub, but should this law go into effect, that will almost certainly limit any growth potential for the firms there. Second, it will lock in the dominance of Google and Facebook, because who else can deal with this kind of crap. Finally, it will lead to massive censorship. And, basically everyone knows this.

…critics from across the political spectrum have warned the legislation could also threaten freedom of speech. Jim Killock, the executive director of the Open Rights Group, said: ?The government?s proposals would create state regulation of the speech of millions of British citizens. We have to expect that the duty of care will end up widely drawn, with serious implications for legal content that is deemed potentially risky, whether it really is nor not.?

Privacy International noted that this plan will “introduce, rather than reduce, “online harms.” Index on Censorship seems similarly concerned:

?The implications for ordinary internet users have not been considered. If you introduce a duty of care, especially in combination with the risk of fines, it creates a very strong incentive for online platforms to remove and restrict content, and this is really going to impact on free speech rights and the right to information for millions of ordinary internet users in the UK, and it?s also going to set an example internationally.?

And, of course, as Reason points out, reporters who love to hate the big internet companies seem to be cheering on this censorship plan because they like anything that looks like it “harms” the big internet companies.

This is the same mess we keep seeing over and over again. Lots of people are mad about stuff on the big internet sites… and are responding by attacking those companies (not the cause of the bad stuff on those platforms), and doing so in ways that will lead to massive censorship, less freedom, and which will only serve to lock in the big internet companies, as no one else will be able to deal with any of the proposed regulations.

Filed Under: censorship, duty of care, harmful content, intermediary liability, internet, uk

Legislator Irritated By A Journalist Decides State's Government Should Start Regulating Journalism

Free Speech

from the a-Pravda-of-our-own dept

A Georgia politician — apparently tired of being questioned by uppity journalists — has decided the First Amendment shouldn’t apply in his state. James Salzer of the Atlanta Journal-Constitution reports the departing state rep, Andy Welch, has lobbed an unconstitutional bomb into the legislature on his way out the door.

A group of House Republican lawmakers filed legislation this week to create a state Journalism Ethics Board to develop “canons of ethics” for journalists in Georgia.

The measure was sponsored by Rep. Andy Welch, R-McDonough, a lawyer who has expressed frustration with what he saw as bias from a TV reporter who asked him questions about legislation recently. He said he thinks the profession could benefit by setting ethical standards for all journalists to follow. Five other Republicans signed on to sponsor the bill.

The bill, which Welch announced along with his resignation from the General Assembly, would create an “independent” ethics board for journalists, which would then decide how journalists should behave. The board — consisting of a handful of journalists from different fields and a “retired professor of journalism who preferably taught journalism ethics” — would hand out sanctions, issue opinions, and possibly offer some form of journalism license (which would be voluntary, not mandatory).

The independence of the board would apparently be assured by the requirement that those assembling the board, as well as those sitting on the board, “shall not be employed by any federal government entity, any state government entity, or any local government entity during such member’s term of service on the board.”

Independent or not, the ethics board would be created by government mandate, which already poses Constitutional issues. It gets worse when other aspects of the proposed law are examined.

Supposedly, accreditation by the ethics board is “voluntary,” but the bill [PDF] says it’s pretty much mandatory if journalists want to be recognized as journalists by the state.

Develop a voluntary accreditation process in journalism ethics for journalists and news organizations that demonstrate compliance with the highest levels of professionalism and integrity in journalism which shall be approved and issued by the board. News organizations shall be accredited only if all journalists employed by the news organization are accredited…

This suggests state-ordained accreditation may be needed if journalists want to avail themselves of the state’s shield law. The shield law is already limited to traditional press outlets: print, television, and radio. This new “voluntary” accreditation program would allow the government to ostracize those already recognized by the shield law, as well as bloggers and independent journalists who won’t be part of this “voluntary” scheme.

But there’s more in the bill that threatens journalism in the state of Georgia. The law would also force news agencies to hand over a massive amount of information to anyone journalists speak to or interview. Here’s the AJC’s summary of the legislation’s demands:

If approved, the bill would also mandate that anyone interviewed by the media would be able to request and receive copies of photographs and audio and video recordings taken by reporters and photographers. Such copies would have to be provided free of cost, even though state and local governments are allowed to charge the public for copies of any documents it provides.

As is pointed out in the AJC article, this subjects private entities to a more rigorous standard than Georgia’s government is willing to apply to itself. The legislature is already exempt from most records requests and the government as a whole has a list of exemptions it can use to keep records out of requesters’ hands. There are no exemptions made for journalists, who could face civil penalties and lawsuits if they refuse to turn this information over to interviewees.

The timetable for releasing these records is extremely accelerated, at least when compared to the amount of time government agencies are given to respond to records requests.

The member of the media conducting the interview, the employer of the member of the media conducting the interview, the person making the audio or video recording of the interview or taking photographs in connection with the interview, or the media outlet that runs a story relying on such interview or the audio or video recording of such interview or photographs taken in connection with such interview shall provide a copy of all responsive items in their possession within three business days after receiving the request by sending such items by email or by statutory overnight delivery, at the option of the individual making the request. If no method is stated by the individual making such request, the responsive items shall be delivered by statutory overnight delivery.

The proposal is so awful state First Amendment advocates thought it was an April Fool’s joke. But it seems Welch is completely serious. This legislator is so hypersensitive that a little “biased” questioning moved him to violate the US Constitution. Sadly, five other members of his party think this garbage is actually worth their support.

There’s very little chance the bill will move forward. Its author is stepping down from the Assembly and it failed to make the cut for the first legislative session of this year. But it’s not dead yet. And there’s enough anti-journalist animosity out there — some of it coming from the Commander-in-Chief — that it may be allowed to survive long enough to earn a veto… or a courtroom challenge.

Filed Under: 1st amendment, andy welch, free speech, georgia, journalism, journalism ethics board, licensing

Former Intelligence Officials Sue The Government Over Its Unconstitutional Pre-Publication Review Process

Free Speech

from the if-nothing-else,-the-Supreme-Court-takes-a-dim-view-of-prior-restraint dept

A handful of former intelligence officials are suing the US government for engaging in prior restraint. It’s a novel take on a First Amendment issue — one that involves a vetting process for books, articles, and op-eds written by these officials containing details of their work in the CIA, Defense Department, and the Office of the Director of National Intelligence.

While the government obviously has some right to ensure classified or sensitive info isn’t leaked in post-career memoirs, the plaintiffs argue the vetting process has no guidelines and no firm timetable, which has resulted in planned publications being held up for years with zero explanation. Charlie Savage has more details at the New York Times.

The plaintiffs include Timothy H. Edgar and Richard H. Immerman, former employees of the Office of the Director of National Intelligence; Melvin A. Goodman, a former C.I.A. employee; Anuradha Bhagwati, a former Marine; and Mark Fallon, a former counterterrorism agent at the Naval Criminal Investigative Service.

Mr. Fallon, who retired in 2010, said that he had trouble getting the manuscript for his book, “Unjustifiable Means: The Inside Story of How the C.I.A., Pentagon, and U.S. Government Conspired to Torture,” cleared for publication.

His plan, he said, had been to publish it at the start of the Trump administration. But the government farmed out his book to numerous agencies, and the review process delayed publication more than eight months, to the fall of 2017, disrupting promotional plans.

In Fallon’s case, the government demanded redactions of material that had already made its way out to the public domain via congressional hearings and news articles. It wanted 113 pages removed completely, even though the subject matter was already subject of open discussions in Washington, DC.

The redaction process is a mess, according to the lawsuit. Books get shuffled from agency to agency, resulting in a patchwork of internally-inconsistent redaction demands that guts entire sections of the authors’ manuscripts. The end result of this process is an obvious negative effect on the free speech of these former officials. The lawsuit [PDF] claims authors have engaged in self-censorship, lost book contracts, and otherwise avoided participating in speech they feel should be protected.

Mr. Fallon’s experiences with prepublication review continue to negatively impact him and deny him the opportunity to contribute to the public debate over breaking news. He would like to publish op-eds in newspapers about current affairs, but his experiences with the review process have discouraged him from trying to do so because of potential delays and unjustified objections by the agency. Mr. Fallon has declined offers to author op-eds and write articles on topics of public concern in response to breaking news because such events require an immediate response in light of the ever-changing news cycle. In addition, Mr. Fallon is unsure how his prepublication review obligations apply in academia—for example, whether he must submit for review edits he makes to the work of other people, or whether an entire piece written by someone else becomes subject to review if he adds one or two sentences. This uncertainty hinders Mr. Fallon’s work and his ability to engage with his colleagues.

That’s just Fallon’s experience. Others echo the same complaints. Most point out the redactions demanded by government agencies include public domain information and seem to be made with the point of protecting agencies from embarrassment, rather than protecting the nation from unintentional leaks of sensitive info.

The plaintiffs are asking the court to find the process unconstitutional, given its incursion on their free speech rights.

Defendants’ prepublication review regimes violate the First Amendment because they invest executive officers with sweeping discretion to suppress speech and fail to include procedural safeguards designed to avoid the dangers of a censorship system.

Defendants’ prepublication review regimes are void for vagueness under the First and Fifth Amendments because they fail to provide former government employees with fair notice of what they must submit for prepublication review and of what they can and cannot publish, and because they invite arbitrary and discriminatory enforcement.

It will be a tough fight. The government likes to engage in opacity and avoid embarrassment. Both of these are key factors in its vague, lengthy pre-publication review process. It won’t want to give those up and it will have ton of national security arguments to make on its own behalf — few of which tend to get challenged by federal courts.

Filed Under: 1st amendment, anuradha bhagwati, cia, defense department, free speech, mark fallon, melvin goodman, odni, pre-publication review, richard immerman, timothy edgar

Court Tosses $11-Million Libel Lawsuit Brought By The 'King Of Bullshit News'

Free Speech

from the viral-crap-farm-wastes-everyone's-time dept

An $11-million defamation lawsuit brought against Buzzfeed by the head of a “news” agency has been dismissed by a New York federal court judge. Michael Leidig, who runs CEN (Central European News), didn’t like being hailed as the “King of Bullshit News” by Buzzfeed in 2015. He sued Buzzfeed nine months after the article was published. Leidig, a UK citizen, may have hoped for a more British take on defamation law, but libel law works differently here in the United States.

Judge Victor Marrero said that under New York law Leidig had to prove “fault” on behalf of Buzzfeed and “either negligence or actual malice depending on the status of the libelled party”.

And unlike UK law, the onus in the US was on Leidig to prove the statements were false (rather than on Buzzfeed to prove they were right).

While the judge held that Buzzfeed’s reporting was backed up by evidence he said Leidig and CEN could offer no evidence to support the stories it reported which Buzzfeed said were fake.

At the center of the case were a handful of “news” articles created by CEN. Many of these made their way into a number of tabloids across the world, going viral in the way that fact-checked stories rarely do. The stories included a Chinese man becoming riddled with tapeworms after eating sashimi, a Russian man surviving a bear attack when his Justin Bieber ringtone scared the bear away, and Chinese citizens treating cabbages like pets.

Buzzfeed’s long expose of Leidig’s handcrafted crap could find nothing to back up the claims made in a number of CEN’s biggest internet hits. As the court points out in its decision [PDF], CEN/Leidig claimed Buzzfeed made false statements in its article, but could not provide any evidence that actually countered Buzzfeed’s reporting.

BuzzFeed argues that Plaintiffs cannot show the falsity of the allegedly defamatory statements, and thus Plaintiffs’ claims must fail. The Court agrees. In the face of repeated instances where BuzzFeed points to specific evidence supporting the truth of the Article, Plaintiffs’ sole rejoinder is that neither Leidig nor any CEN employee admitted to knowingly publishing “a fake news story” or to “add[ing] phony quotations to a story.”

[…]

Apart from these statements, Plaintiffs provide no evidence that BuzzFeed’s eight statements about the CEN stories are false. As such, no jury could find BuzzFeed’s statements to be false.

Leidig and his lawyers piled vagueness on top of vagueness after Buzzfeed filed its response to Leidig’s complaint, refusing to engage with Buzzfeed’s counterarguments.

Plaintiffs’ inability to identify a genuine dispute of material fact is best exemplified by their decision to contest only one of the over two hundred numbered paragraphs in Buzz Feed’ s Rule 56. 1 Statement. For the remainder of the statements, Plaintiffs rely the blanket denial that “[i]n not challenging [BuzzFeed’s] other 215 assertions of fact, [P]laintiffs do not mean to concede that any particular ones are relevant and material to the issues raised on this motion [.]”

At the top of this pile of vagueness is Leidig’s cherry: an attempt to expand the claims of his lawsuit while failing to answer Buzzfeed’s response. The court says this combination “dooms” the lawsuit and it won’t help force Buzzfeed to “defend a moving target.”

[W]ith discovery concluded, it is clear that Plaintiffs cannot meet their burden. Because the Court finds that Plaintiffs cannot satisfy the falsity element for any of the eight statements, the Court does not address BuzzFeed’s alternative argument that Plaintiffs are public figures and would need to show that BuzzFeed made the statements with actual malice as to their falsity.

From there, the court addresses each of the eight viral CEN stories Buzzfeed claimed were false. In each case, Leidig was unable to refute Buzzfeed’s reporting. The court’s rejection of Leidig’s bullshit defenses makes for a pretty entertaining read, thanks to a rarely-seen combination of legal terminology and tabloid subject matter.

Other than Leidig’ s self-serving and discredited testimony, which is plainly insufficient to support a motion for summary judgment, see Celle, 209 F.3d at 188, Plaintiffs offer no evidence regarding the Cabbage Story’s veracity.

[…]

Plaintiffs cannot even demonstrate that they investigated the kitten’s status before writing the Pink Kitten Story. That is, Plaintiffs (once again) could not depend on their own reporting database to determine who wrote the story and who could verify its contents.

[…]

During his deposition, Leidig could not provide any details regarding the Nude Women Story, including the source of the quotes that were used in CEN’ s reporting of the story.

[…]

Unsurprisingly, Leidig stated in his depositions that he does not know where the quotes in the Two-Headed Goat Story came from.

Fun stuff. I mean, not so much for Leidig, but for those of us following along. He can appeal this decision but it’s not going to result in a win. However, it will result in more financial pain for Buzzfeed since it will be forced to defend itself against Leidig’s baseless claims one more time. New York’s weak anti-SLAPP law is no help here, so Leidig isn’t going to be paying Buzzfeed’s legal fees. Maybe this is all Leidig wants from the lawsuit: to annoy the entity that called him the King of Bullshit. It’s definitely a bullshit lawsuit and it has hung around the court system for three years longer than it should have.

Filed Under: defamation, free speech, libel, michael leidig
Companies: buzzfeed

Journalist Maria Ressa Arrested Yet Again As Philippines Keeps Finding Bogus Reasons To Arrest Vocal Critic

Free Speech

from the hold-the-line dept

As we’ve discussed before, reporter Maria Ressa is a powerhouse journalist, who started an important Filipino news site, Rappler.com. Rappler has been (quite reasonably) highly critical of the Filipino government under President Duterte, and over the past few years, the Duterte government has responded with a bunch of highly questionable criminal complaints against Ressa, which all appear to be in direct violation of the country’s 4th Amendment, which is a near carbon copy of the American 1st Amendment. It forbids any law that abridges the freedom of the press (among other things).

And yet… for over a year now, the government has been trying to claim that Rappler violated the so-called anti-Dummy law in the Philippines. Apparently, the Philippines has a law that says, in certain types of industries, Filipino companies cannot have foreign ownership (this, by itself, already seems silly, but leaving that aside…). Rappler does not have any foreign owners. However, it did receive a grant from the well known Omidyar Network, and in order to receive the grant, Rappler used a semi-complicated system called a Philippine Depository Receipt (PDR), in which the company sells these assets to Omidyar, and the assets are pegged to the value of shares in the company, but they grant no ownership benefits or rights. The Filipino government has said for a while that these create a “dummy status” in pretending Omidyar isn’t really taking an ownership stake when it is.

All of that is nonsense, though. This is entirely about intimidating Ressa and Rappler. Last month she was arrested on bogus “cyber libel” charges (over violating a law that wasn’t even a law when the supposed “libel” happened). And now, on arriving back in the country from a journalism conference abroad, Ressa was immediately arrested yet again. As Rappler notes, this is actually the 11th case filed against Rappler, its directors and its staff since the government first claimed that the Omidyar grant violated the law.

This is shameful, if not surprising, by the Duterte government. Of course, it also demonstrates just how scared they are of a tiny independent news organization. If that’s the case, it makes you wonder just what it is they’re afraid Rappler will be reporting going forward…

Filed Under: dummy law, intimidation, journalism, maria ressa, ownership, philippines, rodrigo duterte
Companies: rappler

Alabama Court Decides Publicity Rights Trump First Amendment In S-Town Lawsuit

Legal Issues

from the not-how-it-works dept

We’ve written for some time about the scourge that is publicity rights laws and the fairly blatant way in which they tend to butt up against the First Amendment. While famous folk certainly do have the right to reserve the use of their likeness and names from those that would use either for commercial purposes, too often these laws are instead used to silence non-commercial speech, or speech that revolves instead around journalistic efforts. A famous person, for instance, cannot use publicity rights laws to keep a newspaper from printing factual information about them, or a movie maker from producing a documentary about them. This is First Amendment 101.

But it seems some in the legal field skipped that class. One judge in Alabama has decided to shoulder the First Amendment to one side and favor instead the state’s publicity rights laws to allow a lawsuit against the producers of famed podcast S-Town to move forward.

Serial Productions, This American Life Public Benefit Corporation and journalist Brian Reed must face a lawsuit for allegedly violating a dead man’s likeness in S-Town, the controversial but acclaimed podcast that has been downloaded more than 80 million times. An Alabama judge’s rejection of a dismissal motion on Friday is almost certain to prompt concern among media lawyers.

At issue is John McLemore, the man who had originally emailed This American Life about a supposed murder in his hometown. While nothing came of that claim itself, McLemore eventually committed suicide. That suicide was the impetus for S-Town, with the podcast diving deep into McLemore’s life and death.

In other words, S-Town became a docuseries of sorts about McLemore. Now the estate is suing under Alabama’s onerous publicity rights laws. Serial Productions, producers of S-Town, sought a dismissal on First Amendment grounds, because of course it did.

“Because S-Town is both a public interest and an artistic work, the Estate’s claims must fail,” stated Serial Productions and other defendants in a motion to dismiss. “First and foremost, the imposition of liability under the Act in connection with S-Town would violate the First Amendment free speech rights of the Defendants. Imposition of liability also would violate the Act itself. … S-Town, a 2017 Peabody award winning podcast, is specifically exempted under the Act as a public interest documentary work. It is also specifically exempted as an expressive and artistic work. The creation and distribution of S-Town is exactly the type of constitutionally-protected speech the Alabama legislature took great pains to exclude from liability under the Act.”

The judge, however, has allowed the case to move forward. Without spending any real time taking on the First Amendment claims generally, the judge instead points back to the publicity rights law in Alabama and suggests that because S-Town has advertisements within it, it therefore qualifies as a commercial use of McLemore’s identity. This defies all kinds of previous caselaw indicating that advertisements don’t suddenly make expressive speech commercial speech. And, frankly, such a view would seem to undermine all kinds of media enterprises that advertise as part of their business model, from newspapers to news on television.

“Taking these allegations as true, the Court cannot conclusively determine that Defendants’ use of McLemore’s indicia of identity is non-actionable as the contents of any and all the alleged advertisements or promotions allegedly using McLemore’s indicia of identity are not before this Court. Although Cargile refers to the S-Town podcast generally in his counts, the Court assumes that Plaintiff’s general reference to the podcast includes both S-Town’s expressive contents and the advertisements that interject at regular intervals throughout each episode as well as any other advertisements or promotion materials related to S- Town. Therefore, Cargile has stated a plausible claim for relief under the Act, and Defendants’ motion to dismiss is due to be denied.”

Now, this is just a ruling on a motion to dismiss, but it’s bad nonetheless. Imagine a world where the famous could bar journalistic outlets from reporting or doing documentaries on them if those same outlets sell advertising? Is that a better or worse place than a world properly governed by the First Amendment and protected speech?

One hopes the legal team for Serial Productions can educate the court through the trial phase as to why it’s speech is protected. Otherwise, the journalism and documentary industries are in for a world of trouble.

Filed Under: 1st amendment, alabama, brian reed, free speech, john mclemore, journalism, publicity rights, s-town, this american life
Companies: serial productions, this american life

Australian Prosecutors Trying To Throw Reporters In Jail For Accurately Reporting On Cardinal George Pell's Conviction

Failures

from the oh-come-on dept

As we’ve covered over the past few months, Australian courts put an absolutely ridiculous gag order on anyone trying to report about the conviction of Cardinal George Pell, the former CFO of the Vatican (often described as the 3rd most powerful person in the Vatican). Pell was convicted of sexually molesting choir boys in Australia in the 1990s. This is obviously quite newsworthy, but the courts used what’s known as a “suppression order” in Australia to bar anyone from revealing the information. The reasoning was that there was still another trial for Pell over different accusations, and knowing he was convicted for one might somehow unfairly influence a jury. Of course, in the US we’ve long dealt with this through a process of vetting potential jurors on their familiarity, and then simply barring just that juror pool from doing any further research on the issue — and that system works mostly fine, without keeping the public in the dark about important news, and without stifling a free press.

Eventually the suppression order was lifted, after prosecutors decided to drop the second trial (which, at the very least, suggests that all this fuss to protect the sanctity of said second trial was silly all along). And, yet, prosecutors then sent out a bunch of threatening letters to journalists — most of whom did not report publicly on the case, but who did complain about the suppression order.

And now, to show just how far Australian prosecutors will go to spit on free speech and a free press, they are now seeking jail time for members of the media over this whole mess:

Australian prosecutors are seeking jail and fines for dozens of journalists and media outlets for alleged contempt of court over their coverage of Cardinal George Pell?s child sex abuse trial last year, a court summons showed on Tuesday.

The Director of Public Prosecutions in Victoria has asked the state?s Supreme Court to send journalists to jail or impose fines for breaching a suppression order on coverage of the trial, aiding and abetting overseas media?s contempt of court, and ?scandalizing the court?.

The only things “scandalizing” here are (1) George Pell’s actions for which he was convicted, and (2) the prosecutors now going after journalists for their free speech.

Apparently there will be a hearing on April 15th for 23 journalists and 13 media organizations. It appears that it includes some of the top media organizations in Australia (The Age, Australian Financial Review, News Corp, etc.) and some fairly prominent journalists, including Michael Stutchbury, the editor-in-chief of the Australian Financial Review.

One hopes that prosecutors would come to their senses earlier, but now we have to hope a judge has more sense about this. Unfortunately, given other free speech cases in Australia over the years, I have little faith that this will end up well. Australia is making quite a name for itself as a country that believes in heavy handed censorship, and is against free speech.

Filed Under: australia, free press, free speech, gag order, george pell, injunction, jailtime, journalism, suppression order

Thomas Goolnik Again Convinces Google To Forget Our Story About Thomas Goolnik Getting Google To Forget Our Story About Thomas Goolnik

Free Speech

from the i-sense-a-pattern dept

Remember Thomas Goolnik? Apparently, he doesn’t think you should. But let’s start this post off with some special notes for two specific parties, and then we’ll get into some more details:

1. Dear Thomas Goolnik: I’m assuming you’re reading this because you seem to come across every post we write about you and then file bullshit complaints in the EU about how they need to be forgotten. And, every time that happens, we write another post. Perhaps you should think about not trying to abuse the GDPR and the Right to be Forgotten, and recognize that it’s perfectly legal to mention your name. We won’t even mention the original original story you so badly want censored, even though I imagine lots of people will now go hunt that down.
2. Dear Google RTBF reviewers: this is not an article about some long ago no-longer-relevant event in Mr. Goolnik’s past. Even if we disagree about whether historical convictions should be disappeared down the memory hole, the right to be forgotten is supposed to apply only to past events that are no longer occurring. This article is not about Mr. Goolnik’s past. It is about his present: the fact that he repeatedly is abusing the Right to be Forgotten rules to try to delete our articles about him. This article is about this most recent attempt, and not his past, whatever that might include.

With that out of the way, if you haven’t guessed, Thomas Goolnik has once again sent a Right to be Forgotten request to Google over our earlier articles about Thomas Goolnik and his use of the Right to be Forgotten system to try to delete previous articles about Thomas Goolnik abusing the Right to be Forgotten system to… you get the picture.

Tragically, Google has complied with this latest request, meaning that if you were searching for Thomas Goolnik within the EU, some of those historical articles may not be easily findable. Some of us find this to be an affront to free speech and an abuse of legal process to suppress information that, potentially, may be embarrassing to someone like Thomas Goolnik. But others — such as Thomas Goolnik — appear to have a different opinion. Thomas Goolnik is, of course, free to express his own opinion on his own site, but apparently feels the need to make sure that others who express their opinions should be silenced. We disagree.

Filed Under: gdpr, right to be forgotten, thomas goolnik, thomas goolnik thomas goolnik, thomas goolnik thomas goolnik thomas goolnik, thomas goolnik thomas goolnik thomas goolnik thomas goolnik, thomas goolnik thomas goolnik thomas goolnik thomas goolnik thomas gool
Companies: google

Sixth Circuit Affirms First Amendment Protections For Flipping Off Cops

Free Speech

from the they'll-only-get-one-finger-while-I'm-shifting-gears dept

Just because you can doesn’t mean you should. Debra Cruise-Gulyas received an “impeding traffic” ticket from Officer Matthew Minard. To show her appreciation for his fine policework, Cruise-Gulyas shot him the bird as she rolled away. Not the best idea but, as the district court declared, a perfectly legal hand gesture.

The adage opening this post also goes for cops. Officer Matthew Minard decided the hand gesture warranted another traffic stop. Sure, he had the power to initiate a traffic stop. The problem was he didn’t have any legal reason to do so. As the court noted, the infraction (speeding) Minard had only issued a warning for nevertheless completed the traffic stop. Pulling Cruise-Gulyas over again for the infraction he had chosen not to enforce to its fullest extent could not be used a probable cause for a second stop when Cruise-Gulyas was flipping the bird at a legal rate of speed.

Minard appealed. The Sixth Circuit Court of Appeals [PDF] says the lower court had it right the first time. Officer Minard had no legal reason to effect a second stop.

That leaves Cruise-Gulyas’s gesture as a potential ground for the second stop. But the gesture did not violate any identified law. The officer indeed has not argued to the contrary. Nor does her gesture on its own create probable cause or reasonable suspicion that she violated any law. Wilson v. Martin explained that, where a girl extended her middle fingers at officers and walked away, her “gesture was crude, not criminal,” and gave the officers “no legal basis to order [her] to stop.” 549 F. App’x 309, 311 (6th Cir. 2013); see Swartz v. Insogna, 704 F.3d 105, 110 (2d Cir. 2013) (“This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.”). All in all, Officer Minard clearly lacked authority to stop Cruise-Gulyas a second time.

That’s as nice as it gets for Minard. The next paragraph rejects the argument Minard tried to build on the Wilson v. Martin framework. There’s more than a hint of condescension in the court’s statement.

Minard counters that Wilson concerns whether officers had probable cause to arrest a girl who extended her middle fingers at them, not about whether they could stop her. But Wilson says that the girl’s salute provided the officers “no legal basis to order [her] to stop.” 549 F. App’x at 311. Minard should have known better here.

The officer claimed no case on point could have possibly made it clear to him that receiving an impolite hand gesture did not justify a second traffic stop. The court sighs with slight exasperation.

Minard adds that no case put him on notice about this fact pattern—that a second stop after a first stop supported by probable cause violated Cruise-Gulyas’s Fourth Amendment rights. Defined at that specific level of generality, he says, the case law did not clearly prohibit the stop. But Minard misses a point. In making his argument, he fails to acknowledge that the second stop was distinct from the first stop, not a continuation of it.

[…]

No matter how he slices it, Cruise-Gulyas’s crude gesture could not provide that new justification.

There’s your Fourth Amendment violation. Minard’s decision to hassle a person for disrespecting him also establishes a First Amendment cause of action.

Any reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment. Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (gesturing with the middle finger is protected speech); see Cohen v. California, 403 U.S. 15, 19, 26 (1971).

An officer who seizes a person for Fourth Amendment purposes without proper justification and issues her a more severe ticket clearly commits an adverse action that would deter her from repeating that conduct in the future. The Constitution suggests as much by prohibiting unreasonable searches and seizures. […] In view of the reality that something “as trivial as failing to hold a birthday party for a public employee” amounts to retaliation if done because the employee exercised his speech rights, Rutan v. Republican Party of Ill., 497 U.S. 62, 76 n.8 (1990) (quotation omitted), an unwarranted police stop, a far greater intrusion on liberty, must satisfy the test too.

Back the case goes to the district court where Minard is all out of options. He must face the lawsuit Cruise-Gulyas has brought against him without the shield of qualified immunity. This is a lot of trouble to be in for being unable to absorb a rude hand gesture from a displeased motorist.

Filed Under: 1st amendment, 6th circuit, free speech, middle finger, police, probable cause