from the rhetorically-speaking dept
It’s been a while since we’ve seen a really good response letter to a — as Ken White likes to call them — “bumptious” legal threat letter. But here we’ve got one, courtesy of Ken himself, representing Chad Loder. Loder is a writer who has been calling out propagandist Andy Ngo and The Post Millennial, a propagandist rag that Ngo sometimes writes for. The Post Millennial was apparently sad about that and sent Loder a very silly legal threat:
Here’s the text of the letter:
From: Sam Coppola Sent: September 29, 2021 2:29 PM
Subject: The Post Millennial v Loder et al.
We are special counsel to The Post Millennial (“TPM”) who have advised us of various recent posts and allegations you have made publicly and on your Twitter account.
Our client advises us that the posts and allegations are false and misleading (eg: TPM is NOT Ngo’s “disinfo site” or a “disinformation website vilifying the Anti-Defamation League”, it is an independent news organization; TPM is NOT “run by Andy Ngo”, it is a site owned an operated by Matthew Azrieli as is publicly stated on TPM’s website. As specifically denied by Andy Ngo, he does NOT provide “kill lists of journalists…”; Our client and TPM are NOT “neo-nazis” and do NOT “publicly incite violence” or “target journalists with death threats”, in California State legal proceedings case No 21TRR000739 Chad Loder vs Sarah Mason you falsely believe “…that this account is popular with members of the far-right, including violent extremists” and Exhibit L where you indirectly and purposely falsely publish that “Andy Ngo knowingly defended pedophile Amos Yee”, et…) and were done only with malice and intent to harm our client and interfere with its commercial dealings.
Such posts are also a direct violation of Twitter Rules in respect of “Abuse/harassment” since they harassed and targeted our client and Andy Ngo and incited other people to do so including your directed @(TPMadvertiser) tags. Your posts also published private information (a private chat transcript with Sheri Freed) again contrary to law and the Twitter Rules. As you are aware, Twitter has taken these violations very seriously and even suspended the accounts of well known Canadian politicians for abuses such as those made by you.
You are on formal notice to:
- Cease and Desist publishing any false, misleading, abusive, and harassing posts;
- Remove all of the unlawful posts;
- Publish a retraction and apology satisfactory to our client and sent to the public and the clients and customers which you tortiously interfered with.
If you fail to do so within 3 days, our client will be obliged to exercise all other rights and recourse it may have, including without limitation, commence legal proceedings against you without further notice or delay and hold you liable for any and all damages thereto.
PLEASE GOVERN YOURSELF ACCORDINGLY.
The main block of the 2nd paragraph is almost entirely inscrutable. It throws in some legal jargon but not in any manner that makes sense. The letter mixes up a bunch of things and suggests that TPM might take legal action, but also that Twitter might act? All in all it’s nonsensical, but Ken White is the master in responding to these kinds of letters, so I’ll let him take it from here:
On whose behalf do you write? You claim to be ?special counsel? to The Post Millennial (?TPM?). Congratulations, I?m sure.1 Yet most of your threat is a gripe about things Mr. Loder said about Andy Ngo, who is apparently an ?editor at large? for TPM. (Again ? congratulations, I?m sure.) Moreover, after asserting that you represent TPM, you lose track and refer to ?our client and TPM.? Do you represent Mr. Ngo as well? You seem intent on distancing Mr. Ngo from TPM, pointing out that he does not ?run? TPM. I?m sure everyone understands why you?d want to clarify that. But you also seem to be arguing that criticisms of Mr. Ngo are false and that Mr. Ngo is perfectly respectable. How, then, is it defamatory to associate TPM with him? That was a rhetorical question. Since your legal theories are nonsense, it doesn?t matter.
For what it’s worth, the footnote links to this article calling bullshit on a nonsense story spread by The Post Millennial and a few other sites that are focused on driving whatever silly culture war the Trumpist world delights in this week.
It gets better. Ken breaks out his French (thoughtful for the Canadians):
You may believe that you can intimidate Mr. Loder with frivolous legal threats because Canada, despite being quite delightful in many other ways, indulges such vexatious litigation calculated to silence critics on behalf of the thin-skinned, the vengeful, and the cynically partisan. Au contraire, mon ami. The United States, conscious of the dangers of libel tourism and pro-censorship legal systems, has enacted the SPEECH Act, 28 United States Code § 4102. The SPEECH Act prohibits American courts from recognizing foreign defamation judgments obtained under regimes that do not provide defendants with free speech protections as robust as those available under the First Amendment to the United States Constitution and the laws of the relevant states. American courts have found that there is ?no meaningful dispute that the law applied by [Canadian courts] provides less protection of speech and press than First Amendment and [state] law. Canadian defamation law is derivative of the defamation law of the United Kingdom, which has long been substantially less protective of free speech.? (Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 488 (5th Cir. 2013) (upholding refusal to recognize Canadian libel judgment under SPEECH Act). Any Canadian judgment you obtain against Mr. Loder will be worthless ? both because Canadian courts lack personal jurisdiction over him (as also required by the SPEECH Act) and because his speech is clearly protected by American law.
Then, he highlights why it would be equally stupid to file a lawsuit in the US:
Perhaps you plan to sue Mr. Loder in America. It would be my pleasure, M. Coppola, to introduce you and your client or clients to one of our anti-SLAPP statutes. Any suit you file in the United States will fail for multiple reasons, and result in you paying Mr. Loder?s legal fees under an anti-SLAPP statute.
He then goes through all the many reasons, including:
Astoundingly, your threat is based largely on things Mr. Loder or his attorney said in court filings. Such statements are absolutely privileged from defamation claims under relevant law. Cal. Civ. Code § 47(b), Pollock v. University of Southern California, 112 Cal.App.4th 1416, 1430-1431 (2003) (declaration filed in court absolutely protected by litigation privilege); Holland v. Jones, 210 Cal.App.4th 378, 382 (2012) (litigation privilege barred defamation action because it was based on statements ?whether true or false or made with malice or without it, in her declaration in [court] proceedings [that] fall squarely within the litigation privilege. They are communications made in a judicial proceeding by a litigant to achieve the objects of the litigation with some connection to the action.?).
Reading this, you get the feeling that Ken was pretty excited to search out any Canadian reference he could think of:
Your threat is also a jumbled, oily poutine of complaints about opinions, insults, and heated rhetoric. But under American law, statements can only be defamatory if they?re provably false statements of fact. ?Thus, rhetorical hyperbole, vigorous epithets, lusty and imaginative expressions of contempt, and language used in a loose, figurative sense have all been accorded constitutional protection.?
There are a few more reasons included as to why any such lawsuit will fail (you can go read the whole letter if you’d like) but the final one is also worth highlighting here:
Finally, I am informed that in Canada a defamation defendant carries the burden of proving that a challenged statement is true. This hardly seems polite. In the United States, which values free speech and scorns the censor and the litigious bully, the burden is on the defamation plaintiff to prove that a challenged statement is false. You will fail to carry that burden. Take, for example, your gripe that Mr. Loder described TPM as a ?disinformation website vilifying the Anti-Defamation League.? Even assuming this statement were a provable statement of fact ? a laughable proposition ? your clients? own words will thwart any effort to disprove it
But, truly, the cherry on top is the closing. As we’ve seen over and over again, letters that close “please govern yourself accordingly” are hallmarks of lawyerly bullying, so it’s nice to see how Ken turns it all around on Mr. Coppola:
Direct all further patently frivolous threats and other communications to me. Kindly govern yourself.