You know things are going just great in crypto-land when a cryptocurrency company has to post a vague cease-and-desist letter to its own blog. Everything about this is bizarre, but it culminated in this very strange cease-and-desist blog post by Nexo.
There is a separate blog post that sort of, but not quite, tries to explain what’s going on, noting that a Twitter user has started to spread a false story about the company. And, indeed, Nexo makes a compelling case that the Twitter user “otteroooo” posted a blatantly false (and most likely defamatory — something I don’t say lightly) claim about Nexo’s co-founder, possibly confusing him (whether on purpose or not) with a very different individual who has a somewhat similar (but really not that close) name.
So, yes, sure, I can totally understand Nexo being mad. And I can totally understand and appreciate Nexo posting its compelling argument for why otterroooo’s claims are full of shit.
But… that still doesn’t explain posting a cease-and-desist to your blog. For that, you have to look elsewhere, and see that Nexo is apparently sending Direct Messages to people on social media when they retweet the otteroooo tweets, and (1) sharing with them the explanation blog post and (2) the cease-and-desist.
Except, even then, this doesn’t make much sense. The cease-and-desist is not specific (because, how can it be when it’s just out there for everyone) and completely overstates what is “unlawful.”
If they want to send a cease-and-desist letter to people spreading false information, there are ways to do that, but posting it to your blog seems like a way to call negative attention to yourself, and get you ridiculed, much more than it is likely to get anyone to cease or desist even if you have a decent argument for why people should cease and desist.
As we’ve discussed before, Supreme Court Justice Clarence Thomas really does not like the “actual malice” standard required to make a defamation claim against a public figure, as laid out in the extremely important NY Times v. Sullivan case. The actual malice standard confuses many people, because it’s not actually about malice. The standard is that for there to be defamation of a public figure, it needs to be expressed while the speaker knows that the claims are false, or with “reckless disregard” for whether it’s true. And even the “reckless disregard” part is often misunderstood. It’s a much higher bar than simply being negligent. It means that that the speaker had serious doubts at the time of expression that the speech was false.
This standard has been a huge benefit for freedom of speech. Especially in an era when the rich and powerful use abusive SLAPP suits to drag critics into court with no hope of actually winning. Being able to highlight the lack of any evidence for actual malice has been tremendously helpful in getting many cases kicked out of court at the first opportunity.
However, this is exactly why some rich and powerful people are very much against that standard. And that’s even though for years this was considered settled law, with almost no one challenging the standard at all. And then, in 2019 Clarence Thomas tossed out a bizarre hand grenade, in announcing that he thought it was time to revisit the actual malice standard. That has kicked off a series of strategic lawsuits with the goal of getting the Supreme Court to do exactly that. Things got slightly scarier last year when Thomas once again made the same argument, and this time got Neil Gorsuch to make a similar argument. Last year also saw Clarence Thomas’ own mentor, DC Circuit Judge Lawrence Silberman pen an even more unhinged attack on the actual malice standard, which he claims only enables the mainstream media to be mean to his conservative buddies. He basically argues that if only we got rid of it, the media could be more like those awesome folks at Fox News, being nice to conservatives.
So, there had been some concern this week that the Supreme Court might grant the cert petition for Coral Ridge v. SPLC, a case that is attempting to take up Thomas on his offer to ditch the standard.
Thankfully, the court said no. But, it gave Thomas yet another chance to dissent and rant more about the actual malice standard… citing his mentor’s unhinged rant in support.
I would grant certiorari in this case to revisit the “actual
malice” standard. This case is one of many showing how
New York Times and its progeny have allowed media organizations and interest groups “to cast false aspersions on
public figures with near impunity.” Tah, 991 F. 3d, at 254
(opinion of Silberman, J.). SPLC’s “hate group” designation
lumped Coral Ridge’s Christian ministry with groups like
the Ku Klux Klan and Neo-Nazis. It placed Coral Ridge on
an interactive, online “Hate Map” and caused Coral Ridge
concrete financial injury by excluding it from the AmazonSmile donation program. Nonetheless, unable to satisfy
the “almost impossible” actual-malice standard this Court
has imposed, Coral Ridge could not hold SPLC to account
for what it maintains is a blatant falsehood.
About the only good thing you can say here is that Gorsuch, nor any of the other Justices, didn’t sign on to Thomas’ dissent or issued their own attacks on actual malice.
So, thankfully, for at least some time, this core 1st Amendment standard remains standing.
Of course, while we wait for Thomas to convince others, Congress could take action. Check that: Congress should take action. Congress can and should codify the actual malice standard in law. Hell, why not go crazy and not just codify the actual malice standard into law, but pair it with a strong, functioning federal anti-SLAPP law that would allow defendants dragged into court as an intimidation and speech suppression tactic to get cases kicked out of court quickly — and force the abusive plaintiffs to pick up the bill?
The inflection point appeared to be the firing of Atas from a realty agency owned by UK resident Guy Babcock’s family. She had been fired in 1993. This was followed by a wave of online defamation and harassment that targeted multiple members of Babcock’s immediate and extended family, accusing them of pedophilia, child molestation, fraud, and theft.
Atas had also waged on online smear campaign against a Canadian lawyer who worked for a bank that had foreclosed on two properties owned by Atas. For whatever reason, Atas also targeted a Nova Scotia historian, branding him as a pedophile and “pervert freak,” making it difficult for him to obtain a research position.
Atas also allegedly harassed Toronto residents who had the misfortune of sharing a building with her. This included a reported assault as well as reports of extremely erratic behavior. The New York Times investigation culminated in Atas’s arrest on charges of harassment, defamatory libel, and spreading false information with the intent to alarm. Most of the charges were ultimately dropped but Atas was ordered to cease her online harassment of her many victims.
Atas responded as only someone who has decided the internet is an instrument for (extremely misguided) retribution can: she sued the New York Times over both articles, focusing on the one that reported her arrest.
That lawsuit has been dismissed, as the Volokh Conspiracy reports. Unsurprisingly, the shotgun litigation (there are 72 other defendants beyond the New York Times) has been found meritless. And, as the opinion shows, Atas did very little to help her case survive both its jurisdictional challenges (her being Canadian and the entities she sued being from all over the world) and her own litigation history. A footnote appended to the third page of the opinion [PDF] shows how Atas’ Canadian litigation history works against her pretty much anywhere else she files a lawsuit.
Plaintiff attaches to the complaint a January 3, 2018, order issued by Justice David L. Corbett of the Ontario Supreme Court of Justice. The order declares that Plaintiff is a “vexatious litigant,” who has “persistently and without reasonable grounds instituted vexatious proceedings and conducted proceedings in a vexatious manner in the Courts of Ontario,” and prohibits Plaintiff from instituting or continuing any action or proceeding in Ontario without first obtaining leave. The order also directs Plaintiff to provide a copy of the order to any court, regulatory body, or tribunal where she seeks to commence any type of action or proceeding.
Definitely not helpful, especially when suing over the contents of a well-researched investigation and factual reporting about your arrest.
This also isn’t helpful.
She seeks to hold 73 named defendants and several Jane and John Does liable for the alleged defamation, including (1) the Times and entities and individuals associated with the Times − such as The Daily and its host; the Times’s executive and business editors; and [Kashmir] Hill and her husband; (2) the alleged victims mentioned in the two articles; (3) individuals, entities, lawyers, and law firms who were involved in the defamation cases and other litigation in the Canadian courts to which Plaintiff was a party; (4) the relatives, colleagues, employers, and other entities associated with those whom Plaintiff perceives as enemies.
The court says that, first of all, it does not have jurisdiction. Atas is Canadian. The 73 defendants hail from the US, UK, and Canada. Most importantly, there are no US plaintiffs, which makes it all but impossible for the court to consider the case.
That being said, the court says there’s no case to be considered. What’s alleged here is nowhere near actionable under US law.
Even if Plaintiff is able to establish that the Court has diversity jurisdiction to consider this action, however, her factual allegations do not suggest that she would have viable claims against any defendant named in the amended complaint.
That refers to the Times articles, which are factual and offer factual basis for allegations made in them. The second article, in particular, covers nothing but the indisputable facts surrounding Atas’s arrest.
The rest of the defendants, however, are shielded from this lawsuit because the court has difficulty believing they ever defamed Atas, especially some of those on the outer reaches of the exceedingly long list of alleged defamers.
Plaintiff seeks to bring libel claims against a large number of individuals, lawyers, law firms, and other entities that have no apparent connection to the Times’ articles from which her claims stemmed. She names these defendants and asserts where they are domiciled, but fails to allege any facts against them, much less sufficient facts, as required by Rule 8, to allow the Court to reasonably infer that each defendant is liable to her for libel. For example, she names as defendants the Myers-Briggs Company, which she describes as “the world’s largest business psychology providers” based in California, and IBM, which she identifies as a “multinational technology corporation” headquartered in New York. Plaintiff provides no facts in the complaint that would show how these two defendants − or most of the other defendants − are liable for the alleged libel stemming from the publication of the two articles by the Times.
Yikes. Well, the court has far more patience than anyone should have for someone who is attempting to play the victim after victimizing others for years. Atas has a chance to amend the lawsuit. Given what’s seen here, any amendment is likely to increase the number of baseless claims and completely unrelated defendants, rather than bring Atas any closer to the vindication she somehow believes she deserves.
This ruling is a fabulous reminder that Section 230 doesn’t just protect “Big Tech”; it protects all Americans who use the Internet. Perhaps the defendants would have ultimately defeated this case anyways, but having Section 230 on their sides gave them–and all of us–a little more freedom to engage each other on social media without fearing that every casual interaction might trigger a financial cataclysm. So the next time you hear politicians claiming that Section 230 benefits only Google and Facebook, cite this case as additional proof that they misunderstand what Section 230 actually does, or they are lying, or both.
And it is a solid decision [PDF] that wastes little time determining who’s shielded from this lawsuit and why. In just seven pages, the New Hampshire court covers a lot of ground quickly, ultimately finding in favor of these defendants.
Here’s the backstory: A student defaced a school website and added some additional information about one teacher (the plaintiff in this case). The added post “suggest[ed] that [the plaintiff] was sexually perverted and desirous of seeking sexual liaisons with […] students and their parents.” Another student took a screenshot of the altered site and tweeted it. The defendants being dismissed in this ruling did nothing more than retweet the original tweet.
The trial court found that Section 230 of the CDA immunized these retweeters from the teacher’s lawsuit. The teacher disagreed, appealing the decision to the state’s top court (which is also its only appeals court).
A second pass has changed nothing. The state Supreme Court says the word “user,” found in Section 230(c)(1) means exactly that: user. These defendants were Twitter users and the immunity applies to them. The state’s top court quotes a California Supreme Court case from 2006 — one of the first to apply Section 230 immunity to individual users.
Given that Congress declared that “‘[n]o provider or user of an interactive computer service shall be treated as [a] publisher or speaker,’” the court found no basis “for concluding that Congress intended to treat service providers and users differently,” and that “the statute confers immunity on both.” Thus, the court concluded, “Congress employed the term ‘user’ to refer simply to anyone using an interactive computer service,” and held that section 230(c)(1) immunizes such individual users.
Given this background, the top court finds the lower court’s reasoning persuasive. Simply retweeting someone else’s tweet is not actionable under Section 230.
Despite the plaintiff’s assertion to the contrary, we conclude that it is evident that section 230 of the CDA abrogates the common law of defamation as applied to individual users. The CDA provides that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3). We agree with the trial court that the statute’s plain language confers immunity from suit upon users and that “Congress chose to immunize all users who repost[] the content of others.” That individual users are immunized from claims of defamation for retweeting content that they did not create is evident from the statutory language.
That leaves the plaintiff with one option: asking the nation’s Supreme Court to take a look at this case. It seems unlikely SCOTUS would be interested in delivering a final ruling on a state-level defamation case that offers multiple options for dismissal, even if it’s Section 230 taking center stage here. Certain justices may be acting weird about 230’s immunity, but this lawsuit was a loser when the plaintiff decided to start suing people who did not create the inflammatory post observed (and distributed) by others.
Bogus lawsuits are a form of bullying. (Hence the need for a federal anti-SLAPP law.) Some lawsuits are merely frivolous, filed by people who have no idea how the law works. Others, like this one, are filed solely to silence critics and remind them who actually has the power in this relationship.
That’s what has happened in Mount Pleasant, Wisconsin. The town’s lawyer, Chris Smith, has sued a resident for pointing out the lie he told local journalist, Diana Panuncial. Panuncial covered the Mt. Pleasant Village Board’s decision to extend trustees’ terms from two years to three years. Her article for The Journal Times featured a quote from the town’s attorney, in which he stated the term extensions had been discussed multiple times in public meetings over the last four years.
“It’s very important that everyone understand, even though it was said very clearly, numerous times and at the open public meetings, this does not in any way, shape or form, affect the term of anyone who’s currently on the board,” Village Attorney Chris Smith said.
This change was first formerly brought to the board in April 2021, though discussion of it began back in 2018, according to Smith.
Smith’s claim didn’t sound accurate to Kelly Gallaher, an activist who heads A Better Mt. Pleasant, a local watchdog group. Gallaher routinely attends or watches public meetings and didn’t recall any previous discussions of the term extensions. She searched the town archives for previous discussions of term extensions by the board but couldn’t find anything. She directly emailed the man who had made the claim — town attorney Chris Smith — to see if he had any information about these years of open, public discussion.
Here’s how that went, according to Gallaher’s motion to dismiss [PDF]:
To clear things up, Kelly e-mailed Village Attorney Smith about his quote in the Journal Times on February 22 and asked him to provide her with “the agendas in which the Village Board (or the Committee of [the] Whole) discussed and/or debated extending the length of terms in office for public officials from January 2020 until the present.”
On February 23, Village Attorney Smith responded that during that time frame the term extension was “discussed at the Committee of the Whole on 4/19/21,” as well as at meetings on January 10 and 24 of 2022 and attached the agendas for all three meetings. Kelly wrote back the same day that the April 2021 meeting agenda “doesn’t really inform residents that longer terms for village officials was being considered—there is no agenda item which specifically refers to term lengths,” and expanded her request to ask for “all other agendas in which longer terms for village officials were specifically discussed and/or debated from January 2018 through April of 2021.”
All told, she had now requested meeting agendas discussing the term extension from 2018 through the present—the entire period in which Village Attorney Smith told the Journal Times that the change had been discussed. After Kelly followed up a week later, Village Attorney Smith admitted in a one-sentence email that: “This subject matter was not discussed at a public meeting within that timeframe, other than the 4/19/21 meeting previously discussed.”
Following this admission, Gallaher emailed the Journal Times and pointed out the statements made by Smith in the paper’s article weren’t true, providing the Journal Times with a copy of her correspondence with the town attorney. She posted the same information to her organization’s social media pages, pointing out that “the Village Attorney lied to The Journal Times” about term length discussions.
This made the town attorney angry. He sued [PDF] Gallaher for calling him a liar, claiming her posts to Facebook and Twitter referencing his lie to local journalists were defamatory. He also claimed Gallaher’s email to the Journal Times (making the same allegations about Smith’s statement to the paper) was defamatory. He proceeded with this lawsuit despite obtaining a retraction and an apology from Gallaher following his initial legal threat.
This may have seemed like an easy win for the attorney who didn’t like a local activist pointing out his lie to a local journalist. But the Institute for Justice has stepped in and it looks like the town attorney is completely in the wrong, if not completely overmatched.
The IJ points out there was nothing reckless about Gallaher’s assertions about the truthfulness (or lack thereof) of Smith’s statements to the Journal Times. In fact, there was nothing actionably false about her statements about Smith’s statements.
To be sure, [Smith’s lawsuit] alleges that Kelly did not like her current government and that she had “created hundreds of posts on social media” that “portray[] Mount Pleasant Village officials or employees negatively.” But it does not allege that Kelly knew her statements was false, or even that she should have known they were false.
Nor could it have. Indeed, the very email that the Complaint claims was defamatory makes clear that Kelly was anything but reckless. Kelly’s email to the Journal Times reporters included her correspondence with the village attorney where she asked for records that could substantiate his quote in the Journal Times article. That same email made clear that she had tried to find these records on her own by “search[ing] the village archives” with no luck. She followed up with Village Attorney Smith a week later. It was only after Village Attorney Smith admitted, without further explanation, that extending trustee term lengths had not been “discussed at a public meeting” in 2018 or at any time before April 2021 that Kelly contacted the Journal Times and made her social media posts. In other words, Kelly did research, gave Village Attorney Smith ample opportunities to substantiate his quote, and waited until he appeared to confirm that his quote was false to say anything. Far from showing that Kelly knew her statements to be false or that she acted recklessly, the very statements that the Complaint alleges were defamatory show that Kelly had every reason to believe that what she was saying was true.
Even if Smith meant that there had been discussions residents weren’t privy to, that wasn’t made clear in his comments to the press. His admission to Gallaher that nothing had been publicly discussed until April 2021 allowed her to draw her own conclusions. Because of that, Smith is suing over two opinions and one factual statement by Gallaher. And that doesn’t add up to defamation.
In other words, the allegedly defamatory statements make clear that (1) Kelly believed Village Attorney Smith’s quote should be interpreted as a claim that there were public discussions of the term limit change as early as 2018; (2) there were no public discussions of the term limit change as early as 2018; and (3) Village Attorney Smith was therefore a liar. Of these three points, only the second is factual—and that one, as far as the Complaint reveals, is perfectly true. The other two are pure statements of opinion based on disclosed facts: Kelly offered her interpretation of a public statement by Village Attorney Smith and her opinion that people who say false things in public are lying.
It doesn’t matter how Smith views these statements. It matters how the court will view these statements. And it’s extremely unlikely the court is going to side with Smith’s subjective beliefs.
Village Attorney Smith is, of course, entitled to have a different opinion. He may well believe that the best interpretation of his quote was that discussions of the term-limit change had been held in secret rather than in public and that it is therefore unfair to say he lied. But these differences of opinion do not give rise to a defamation claim under Wisconsin law.
As a town official, Smith had plenty of options that would have been less disastrous — and less thuggish — than suing a resident for arriving at a very logical conclusion. He could have issued a statement clarifying his comments to the Journal Times. He could have said he was mistaken about previous discussions. He could have been the adult in the room, so to speak. But he chose to sue. Even if he somehow manages to survive this motion to dismiss, it’s not going to rehabilitate his image. And it’s not going to convince a town that has been repeatedly abused by its representation that he’s trustworthy. All this lawsuit does is expose him as someone who can’t handle honest criticism about perceived dishonesty.
For a while there in 2019, it seemed like a month couldn’t go by without (then) Rep. Devin Nunes suing some critic or another (including, somewhat infamously, a satirical cow). After kicking it off by suing mocking livestock, he quickly moved on to suing news organizations. A big one was suing CNN, a favored punching bag of Republicans, which he sued in December of 2019.
It hasn’t gone well.
Despite a Washington Post media critic (bizarrely) calling the lawsuit “halfway decent,” a judge quickly sent the case to its proper venue where it was (relatively) quickly dismissed. As we noted at the time, most of the decision to toss the case revolved around choice of law issues, regarding which state’s laws to apply. This case actually involved four possible sets of laws: Virginia, Washington DC, New York and California. Frankly, I think the case would be a loser under all four sets of laws, but exactly how does depend on which laws are being used. Nunes desperately wanted to make sure California’s (ostensibly his “home” state) laws did not apply, in part because California law requires that you first ask the news org to retract the speech you claim is defamatory (which it appears Nunes did not do).
After some back and forth, the court determined that California’s laws should apply — in part because of where the case was filed (in Virginia) even though the case was transferred to NY (choice of law fights are fascinating to me and like three other people, so I’m not going to go deep into the weeds as to how this worked, but trust me, it does), and the lack of request for a retraction basically destroyed the rest of the case. Again, it’s likely that the case would eventually be a loser under any of those sets of laws, but failing to meet the very basic criteria under California’s law dooms the case here.
Still, Nunes and his lawyer, Steven Biss, decided to appeal the ruling.
It did not go well.
The 2nd Circuit appeals court has affirmed the lower court decision, saying that Virginia’s choice of law principles (where the case was first filed) mean that California’s defamation law applies.
Applying the principles set forth above, as well as those animating the Virginia Supreme Court’s adherence to lex loci delicti, we hold that the district court correctly determined that under the circumstances presented in this case, the Virginia Supreme Court would apply the substantive law of the state where the plaintiff incurred the greatest reputational injury, with a presumption that absent countervailing circumstances, a plaintiff suffers the most harm in his state of domicile.
We reject Nunes’s contention that, in the context of simultaneous multi-state defamation cases, Virginia’s choice-of-law principles require application of “the law of the state where the publication first occurred,” understood by Nunes as the state from which the statement emanated. Appellant’s Br. at 29. Under Virginia law, a statement is not considered to be published until it is seen or heard by a third party. See Food Lion, Inc. v. Melton, 250 Va. 144, 150–51 (1995) (holding that publication requires a third party to have heard the words spoken); Meadows v. Northrop Grumman Innovation Sys., Inc., 436 F. Supp. 3d 879, 886 (W.D. Va. 2020) (collecting cases for the proposition that, in the context of purportedly defamatory emails, the place of publication is where the email was “opened and read”); Katz v. Odin, Feldman & Pittleman, P.C., 332 F. Supp. 2d 909, 915 (E.D. Va. 2004) (“[P]ublication of a defamatory statement requires that it be communicated to a third party ‘so as to be heard and understood by such person.’” (quoting Thalhimer Bros. v. Shaw, 156 Va. 863, 871 (1931))). Further, under the Restatement (First) of Conflict of Laws, which sets forth the traditional lex loci delicti doctrine, the “place of the wrong” for purposes of a defamation claim is where the content was received and harm to the plaintiff’s reputation occurs.…
It goes on like this for a while before saying that it’s pretty clear that California’s — again, where Nunes was a Congressional Representative from, and where you’d think any “reputational harm” would be greatest — was the proper set of laws.
Then, it notes that, as the lower court said, Nunes’ failure to demand a retraction means he has failed to properly state a claim for defamation.
Accordingly, the district court did not err in concluding that California Civil Code § 48a governs, that Nunes failed to comply with that statute because he did not make a timely demand for a correction from CNN, and that the complaint should therefore be dismissed with prejudice for failure to state a claim. Dismissal is required because, as the district court correctly found, the complaint does not allege special damages with the necessary specificity under Federal Rule of Civil Procedure 9(g), and instead merely alleges “specialdamages” by including those words conclusorily in the general allegations of damages. 7 Lastly, because, under California law, conspiracy “[s]tanding alone . . . does no harm and engenders no tort liability,” Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454, 457 (Cal. 1994), the district court also correctly dismissed Nunes’s civil conspiracy claim with prejudice.
And so another Biss/Nunes joint bites the dust. I wonder if whoever is paying Biss for all these lawsuits (whether its Nunes or some mysteriously unidentified third party) is happy about all these losses that keep piling up?
In early 2020, Peter Brimelow, the founder of the incredibly sketchy site VDARE, sued the NY Times for calling him an “open white nationalist” among other similar things. Brimelow and VDARE have only spent two decades or so pushing for “ethno nationalism,” that “America is not a melting pot,” and that we need to “preserve and celebrate the distinctive culture of America.” Also “diversity per se is not a strength, but a vulnerability.” It also claims that it’s fighting to “keep America American.” Those all come from his website.
I mean, anyone with half a brain can see all of that and come to the opinion that Brimelow is an ignorant, bigoted piece of trash. But apparently, he wants to draw the line at “open white nationalist” and that VDARE is “an anti-immigration hate website.”
The lawsuit did not go well. Less than a year after it was filed, the judge dismissed it easily. As the judge noted, calling someone a white nationalist is a statement of opinion. The judge actually notes that referring to him as an “open white nationalist” without any links potentially pushed the opinion over to fact, because the “open” part implied that he had embraced the term, but since the Times deleted “open” and linked to SPLC, it changed it to opinion:
To some, it may be essentially synonymous with “anti-immigration,” a descriptor that Plaintiff cannot plausibly deny; to others, it may be synonymous with “white supremacist,” which suggests a belief in a racial hierarchy that is not specific to the United States. There is no single, precise understanding of the term “white nationalist” that is falsifiable such that The Times’s characterization of Plaintiff as such constitutes a statement of fact. Furthermore, the link to the SPLC’s website, as objectionable as Plaintiff finds it, provides the previously missing underlying basis for the characterization. Therefore, the Court finds that the final version of the January Article referring to Plaintiff as a “white nationalist” presents only non-actionable opinion.
There’s also the problem of showing actual malice — meaning did the NY Times know that it was false to call him that when it did — and the court… says that’s not going to fly.
Plaintiff must plausibly allege that The Times knew, or recklessly ignored information suggesting, that he did not hold “white nationalist” views, but published that characterization anyway. Plaintiff’s criticism of The Times’s apparent acceptance of the SPLC’s characterization and disregard of Plaintiff’s objections notwithstanding (see Pl. Opp. 16-17), there is ample basis in the material of which the Court has taken judicial notice for The Times to reasonably have deemed Plaintiff’s views as falling within a broad colloquial understanding of the term “white nationalist.” The Times’s decision not to validate Plaintiff’s preferred characterization and the differences he perceives between “white nationalism” and “civic nationalism” does not constitute recklessness. Rather, The Times was within its right to base its description of Plaintiff on its own evaluation of Plaintiff’s published writings and other public commentary and on the analysis of an organization The Times perceived as having relevant expertise, namely the SPLC.
So for this and a few other reasons, the court tossed the case. Brimelow appealed and in November the 2nd Circuit upheld the lower court ruling dismissing the case. Brimelow filed a cert petition to the Supreme Court, which (quite reasonably) refused to hear the case.
That takes us up to now. Last week, Reuters reported that the NY Times was now suing Brimelow under NY’s anti-SLAPP law. The article is next to useless, as it talks about how it’s a first of a kind lawsuit, but doesn’t really explain how, or bother to link to the actual filing. Thankfully, the amazing @puppyleak user on Twitter found the filing for me after my own docket searching came up empty.
So, now we can dig in and explain why this is a “first of its kind” lawsuit and provide the info Reuters skipped over. As you may recall, in November of 2020, NY finally (after years and years of trying) amended its anti-SLAPP law to be more like the gold standard of anti-SLAPP laws (before that it covered only a very, very narrow slice of lawsuits).
In the recent trial in which the NY Times defeated Sarah Palin’s bogus defamation lawsuit, the judge had noted that the newly amended anti-SLAPP law could apply to cases that started before the law was changed. That is, the anti-SLAPP law could be used retroactively.
The case from Brimelow was filed before the amended anti-SLAPP law, and the lower court’s dismissal came basically a few weeks after the law was changed, but at a point when all of the briefing had been done. In other words, unlike in a normal anti-SLAPP situation, the NY Times was unable to use the anti-SLAPP law during the case itself to get it kicked out and to get attorney’s fees.
So, what’s new here is that the NY Times is now taking the rulings of a few judges in NY, who have said that the law is retroactively applicable, and arguing that Brimelow’s case was a SLAPP, and he should pay for their fees. Because this option wasn’t available at the time they sought to dismiss the case, they are now filing this new case in order to take advantage of that aspect of the law.
Thus, this is unique, as you rarely see an anti-SLAPP law used as a plaintiff in filing a new lawsuit, but it’s the unique situation in New York of the expanded anti-SLAPP law combined with the agreement among judges that it applies to open cases that began prior to the expansion of the anti-SLAPP law. So, the NY Times had to wait until everything played itself out, and then the only way to seek to use the anti-SLAPP law to recover its costs was to file this new, separate lawsuit.
If the NY Times wins, the new NY anti-SLAPP law says that Brimelow must pay its legal fees.
Oh, and there is one small tidbit in the lawsuit that isn’t going to help Brimelow. The complaint notes that while waiting for the Supreme Court to respond to his cert petition, Brimelow wrote an article admitting that even though there was “almost universal skepticism” about his case, he was keeping it going because “[t]he paper’s arrogance, dishonesty and malevolence are simply beyond words” and noting “who does it think it is?” Also: “the New York Times case has just infuriated me.” All of that… is not a good look if you don’t want to be shown to be filing SLAPP suits in which you’re suing someone out of personal animus, rather than legitimate legal claims.
George Galloway is a UK politician with, well, something of a reputation. Anyway, recently, he got very, very upset, because Twitter labeled his account as being “Russia state-affiliated media.”
That tweet shows the addition by Twitter of the “Russia state-affiliated media” and then says:
Dear @TwitterSupport I am not “Russian State Affiliated media”. I work for NO #Russian media. I have 400,000 followers. I’m the leader of a British political party and spent nearly 30 years in the British parliament. If you do not remove this designation I will take legal action.
Twitter started labeling “state-affiliated” media accounts a while back and has explained the process thoroughly, including noting that there is a clear appeals process. Earlier this year, Twitter expanded the labeling of Russian state-affiliated media to attach it also to individuals who worked with those organizations, rather than just the organizations themselves.
Now, if Galloway truly worked for “no Russian media” he might have a reason to be frustrated. But, as people pointed out to him fairly quickly, at the time of that tweet above, his profile actually named multiple Russian media operations that he was directly associating himself with: “Sputnik on RT” and “InQuestion” a daily news program on RT.
Of course, as soon as people started pointing that out, Galloway’s profile magically changed. Poof.
But, of course, it’s not hard to find Galloway’s fairly close association with those Russian state-affiliated media organizations. While he no longer links to Sputnik RT, that account’s profile notes that the show is hosted… by George Galloway and has his image front and center.
So, uh, yeah, George, you kinda are associated with Russian state-affiliated media. In fact, the latest post on Sputnik on RT’s Twitter feed is literally George Galloway, posted on March 25 (so, like two weeks ago) ranting about “crazy Joe Biden” apparently cooking up a “false flag” operation in Ukraine.
And, while Galloway no longer links to this in his Twitter profile, his own website still highlights his connection to RT:
So, yeah, if you don’t want to be considered Russian state-affiliated media, maybe don’t have TV shows on Russian state-affiliated media that you appeared on within the last month?
Galloway’s response to some of this criticism is that it doesn’t count, because the UK government has “closed down” those Russian media operations, that suddenly frees him from being Russian state-affiliated media (which again, he was presenting on just weeks ago).
So… he was working for Russian state media and it’s bad for you to mention that because he can no longer work for Russian state media?
Our client entirely disputes that he is “Russia state-affiliated media” and provides notice of his intention to institute proceedings against Twitter for breach of his personal data rights defamation/libel and harassment.
The application of the label is unlawful both as a matter of data protection law and otherwise unlawful being defamatory/libellous, an intrusion into our client’s private life because it is a serious attack on his personal/professional integrity and reputation and because the application of the label interferes with his right to freedom of expression through censorship
Look, I know that other parts of the world, including Ireland, have more ridiculous defamation laws than the US (which are more protective of free speech), but even in Ireland, a defense to a defamation claim is if the statement is “substantially true.” And it’s hard to deny that Galloway worked for Russian media. If that really has changed within the last week or so, the proper thing to do is to go through Twitter’s appeals process, not flip out and alert a lot more people that you were totally down with being a Russian state media presenter than realized it before.
Separately, Irish defamation law requires that a defamatory statement actually damage the reputation of the person making the complaint. And, as you might notice above, Galloway’s Twitter followers grew in the days after his temper tantrum.
Either way, George, if you don’t like how Twitter operates, your free to use one of its many, many competitors. Oh, I see you’ve already found one:
I hope you enjoy your stay on GETTR, George. Just make sure not to call that company’s main financial backer a Chinese spy, okay? They don’t like that over there in that “free speech” heaven.
Very serious laughably ridiculous buffoon stunt journalists, Project Veritas, had its account banned from Twitter a year ago, a couple months before its founder James O’Keefe also had his own account banned as well. O’Keefe vowed to sue CNN and Twitter over the bans, and these plans seem to be going about as well as a standard Project Veritas special report: people too clueless to understand reality think it means something, but it falls apart under scrutiny. Just days after the threat to sue, Project Veritas did, in fact, sue CNN for defamation.
The core claim was that CNN’s Ana Cabrera had tweeted that the PV account was banned for “spreading misinformation” when the truth was that it was banned for violating policies on sharing “other people’s private information without consent.” Leaving aside the difference between a thoroughly reported news article and a throwaway tweet, this… seems like a weird thing to sue over unless (like Project Veritas) you are really, really, really infatuated with attacking anyone who claims you traffic in misinformation.
And, this all went pretty much the way that you might expect, with a judge now dismissing the case, noting that even taking Project Veritas’ complaint at face value, it doesn’t fucking matter because the real reason that PV’s account was banned was just as bad as the reason Cabrera claimed:
While Project Veritas asserts that CNN’s statements implying that Project Veritas was banned from Twitter for spreading misinformation maligns its “journalistic integrity,” … the pleaded truth of being accused of violating a policy aimed at “protect[ing] individuals from coming to physical harm as a result of their information being shared” similarly maligns a journalist’s professional reputation. In essence, “[s]ubstitute the true for the false . . . and the damage to [plaintiff’s] reputation would be no less.” Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1228 (7th Cir. 1993). Furthermore, while there is some difference between violating a policy by providing incorrect or misleading information and violating a policy by truthfully providing someone’s private information (and potentially exposing a person to harm), the distinction is not enough to make the statement at issue actionable as both violations are similarly damaging to the journalist’s reputation. Project Veritas’s allegations and arguments do not plausibly suggest that the truth (as pled in the Complaint) would have a different effect on the mind of the average reader in terms of the reputational harm.
Basically, the judge is noting that the “harm” here (if any) was no different if Cabrera had accurately described the reason PV was banned, because the reason they actually were banned was pretty bad in itself. And all this really accomplishes then (beyond being a SLAPPy nuisance) is to reinforce the knowledge that PV was banned for violating Twitter’s policies, in this case, revealing private information they should not have.
As Omar (RIP, Michael K. Williams) pointed out, using only his whistling and his sawed-off shotgun, “If you come at the king, you’d best not miss.”
The “king” of First Amendment protections has always been the independent press, especially when coupled with issues of public interest that (almost always) involve government employees and officials. The founding fathers recognized a free press was integral to a fully functioning democratic republic — an entity capable of providing further checks and balances by informing the public about the activities of their representatives. Exposing wrongdoing is crucial, and the press has historically been the source of plenty of coverage of government wrongdoing.
Law enforcement officers — despite being recognized as “law enforcement” — are often pretty terrible at recognizing lawful activity. That’s why two law enforcement officers (Tuscaloosa [AL] police officer Adam Hones and Tuscaloosa County Sheriff’s Deputy Joshua Hastings) sued BuzzFeed reporter Katie Baker for reporting on their apparent disinterest in taking an alleged rape victim’s allegations seriously. During the course of this so-called investigation, these officers had turned the victim into a suspect and the pressure applied to her by the people who were supposed to be helping her apparently led to her suicide.
That’s why [rape victim Megan Roudini and police offices] went to the hospital for a forensic exam, even though it was the middle of the night and Megan had just run away from Sweet T’s mansion by climbing out of his second-story window. Afterward, instead of going to sleep, she met with law enforcement for an interview. Megan never imagined that she would soon be cast as a criminal, or that investigators would view Sweet T — really T.J. Bunn Jr., son of an influential Tuscaloosa family — as the true victim. But that’s exactly what happened.
The report also noted that the Tuscaloosa PD (in the year of our lord two thousand fifteen) didn’t have a sex crimes unit. Nor did it even bother to track reported sexual assaults. Cases are labeled “special inquiries,” which allows them to elude reporting on rape case closures and, apparently, allows officers to turn victims into criminal suspects.
Almost two years after this report was published, the named officers sued [PDF]. Three years later, Katie Baker and BuzzFeed have been vindicated by a federal court [PDF]. (h/t Mike Dunford)
The court notes that the dissemination of information has changed radically since the nation’s founding. But allegations of press bias (like those raised by the law enforcement officers) have always been there. And those allegations do nothing to alter First Amendment protections for members of the press.
These days, criticisms of the media are ubiquitous and come from all ends of the political spectrum. Those on the conservative side of society dub news organizations like CNN, MSNBC, and the New York Times as “Fake News.” And, those who are more liberal are quick to condemn Fox News as “right wing.” Both sides seem to assume (indeed, they stridently contend) that this is some new phenomenon — i.e., that the so-called “Fourth Estate” has only recently gone off the rails and, depending upon a particular news agency’s politics and philosophy (and the particular base they “target” with their brand of the news), media outlets selectively decide what news to report and what spin to put on that news. Again, the spoken and unspoken premise is that this is all some new era in American politics and society.
But, these views are wholly ahistorical. There has always been a level of perceived, if not actual, bias in the media’s reporting of our nation’s affairs and local events. This has been so from our nation’s beginning.
[…]
Yet, it was against this very backdrop — of what was actually the state of the media in the 1700s and how it was reasonably expected that the media would continue to similarly function as our Nation grew older — that one of the nation’s founders, Thomas Jefferson, said “were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.” Letter from Thomas Jefferson to Edward Carrington (Jan. 16, 1787), founders.archives.gov.
Granted, there was no electronic media in the eighteenth century, and there were certainly fewer publishers. But, the fact remains that Jefferson’s sentiments were expressed at a time when nearly everyone thought the press was biased and that the various media outlets presented decidedly slanted narratives toward a particular viewpoint (e.g., Federalist or Anti-Federalist). So, while the founders adamantly believed the distribution of the news to be a necessity at the birth ofa democratic nation, even then, the view that media organizations (newspapers and periodicals) were “biased” was widely prevalent.
Claims of bias are not viable defamation claims. If they were, outlets like the one you’re reading wouldn’t be able to cover it fast enough. And millions — if not billions — of taxpayer dollars would be wasted entertaining the claims of people who think news reports should always be slanted in their preferred direction.
More to the point, the question presented in this defamation case is not whether Defendants Buzzfeed, Baker, and Smith may have been affected by bias in what they chose to report (and how they chose to report it). For if that were the legal test for deciding defamation cases, the President could not appoint, and the Senate could not confirm, enough judges to the federal judiciary to handle all the litigation that would be filed in federal courts in this one area of the law alone. Rather, the question is emphatically this: did Defendants defame Plaintiffs.
The answer to that question is “no.”
[F]or a claim to be actionable, a contested statement must be false and defamatory, and these requirements are separate sub-elements. A plaintiff must prove both. Here, after careful review, the court concludes that each of the eleven statements are (1) true in their most literal sense and (2) not capable of being given a defamatory meaning by an ordinary reader.
There’s no “malice” of any actionable type here, either. The normal standard of “actual malice” (a legal term of art for publishing knowingly false statements) hasn’t been met by the officers’ complaint. Neither has the more-relaxed “common-law malice” under Alabama state law. Substantially true reporting is substantially true reporting, no matter what bias the officers claimed to perceive.
The Rule 56 record shows that Defendants did not act with common-law malice or actual malice. As explained above, each contested statement is true. Therefore, Defendants could not have published the article with actual knowledge of its falsity or with reckless disregard for the truth. Nor have Plaintiffs proffered any evidence of common-law malice. They have not pointed to any evidence that Baker had any knowledge of Plaintiffs before investigating this story. Thus, a reasonable juror could not find that Defendants harbored previous ill-will against Plaintiffs. Also, Plaintiffs have failed to show common-law malice through “violence of … language.” Again, as explained above, the ordinary reader would not conclude that this article is a sensationalized story of a cover-up by Plaintiffs.
Here, as in Wilson, Defendants were acting in their capacity as paid journalists; each contested statement is corroborated by the police interviews and police records; and there is no evidence that Defendants had knowledge of Plaintiffs prior to investigating the story. Accordingly, Plaintiffs have not met their burden of providing Rule 56 evidence upon which a reasonable juror could decide that Defendants should lose the protection of the fair-reporting privilege.
So, BuzzFeed and Katie Baker win. But at what cost? It was nearly three years of litigation, which is an incredibly expensive undertaking. Making matters worse (and likely directly related to the officers’ decision to sue Baker in Alabama) is Alabama has no anti-SLAPP law — something that could have ended this litigation almost immediately and (depending on the law) shifted legal fees to the plaintiffs for filing bogus litigation meant to silence critical reporting. If states can’t get it together (and if courts continue to disagree about application of state anti-SLAPP laws to federal cases), it’s time for Congress to pass a federal anti-SLAPP law so defendants won’t lose hundreds of thousands of dollars defending themselves from obviously bogus claims.
