rpenner1886 's Techdirt Comments

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  • On the post: Ninth Circuit Affirms MSNBC's Anti-SLAPP Motion Against OAN Network's Bullshit Defamation Lawsuit

    rpenner1886 ( profile ), 23 Aug, 2021 @ 10:35pm

    Re: Be glad the court refused to open that box OAN

    OANN : Give us more than $10,000,000.00 (Doc 1, 2019-09-09)
    MSNBC: For what?! (Doc 18, 2019-10-21)
    Judge: You're crazy. You pay them. (Doc 30, 2020-05-22)
    MSNBC: LA media litigation is expensive. They should pay us $323,965.00 + $9,706.28 (Doc 35, 2020-06-05)
    OANN: San Diego lawyers aren't that expensive. How about $84,995.80 + $9,706.28 (Doc 37, 2020-6-26)
    MSNBC: Now that we think about it, it should be $347,244.00 + $10,724.36 + what ever we are separately awarded for winning the appeal. (Doc 38, 2020-07-09)
    Judge: You both make some good points and some weak ones. OANN will pay $247,667.50 + $10,724.36. (Doc 40, 2021-02-05) Herring Networks, INC v. Maddow (3:19-cv-01713) District Court, S.D. California

  • On the post: Ninth Circuit Affirms MSNBC's Anti-SLAPP Motion Against OAN Network's Bullshit Defamation Lawsuit

    rpenner1886 ( profile ), 23 Aug, 2021 @ 09:49pm

    Additional Sources

    Daily Beast's original story on OANN as it appeared in court filing to take judicial notice of the news story referred to in the OANN complaint. The story today is behind a paywall. Maddow's Segment (3m34s) is still online.

  • On the post: Ninth Circuit Affirms MSNBC's Anti-SLAPP Motion Against OAN Network's Bullshit Defamation Lawsuit

    rpenner1886 ( profile ), 23 Aug, 2021 @ 09:21pm

    Re: Its a Matter of Law Now

    To dismiss with prejudice means that there is no fact pattern in which this could ever be considered a statement of fact.
    Nope, it means there is no set of allegations which will turn Rachel Maddow's isolated hyperbolic LOLZ about a true 3rd party news story into more than 1st Amendment-protected opinion about the story into a defamation claim by the subject of the story. Or as the District Court wrote: “Because there is no set of facts that could support a claim for defamation based on Maddow’s statement, the complaint is dismissed with prejudice.” Given a news story which sussed out the uncontested facts that one OANN story source is also a paid contributor of a state-sponsored mouthpiece of Russia who also injected Russia-originated misinformation into OANN stories, Maddow sandwiched the statement: “in this case, the most obsequiously pro-Trump right wing news outlet in America really literally is paid Russian propaganda.” OANN didn't object to even the whole sentence or the sentence that came after: “Their on-air U.S. politics reporter is paid by the Russian government to produce propaganda for that government.” They only objected to the bolded part. But 1) “in this case” incorporated by reference the uncontested facts of the immediately presented news story, and 2) “literally” doesn't have a single meaning and cannot convert a hyperbolic opinion supported by disclosed facts into a statement of fact. A better summary would be arguments that “opinion [plaintiff] doesn't like shouldn't be protected speech, and people shouldn't be allowed to report on undisputed facts that make [plaintiff] look bad” cannot result in a judgment of defamation because of the 1st Amendment and should result in penalties in jurisdictions with a healthy Anti-SLAPP statute.
    That basically means that nothing Rachell Maddow ever say can possibly be taken by a reasonable person as a statement of fact.
    That is not what it says. It says reasonable people listen to Maddow in context because “Maddow’s show is different than a typical news segment where anchors inform viewers about the daily news. The point of Maddow’s show is for her to provide the news but also to offer her opinions as to that news.” Maybe, if you don't understand the phrase “reasonable people” in the way a American court does, you are not a reasonable American. May I point you at the Constitution of the United States as Annotated by the US Congress to help understand reasonable Americans better. Or if that is too long, you may simply want to read the District Court Opinion and the Circuit Court Opinion which provide the facts and reasoning with references.
    Oh well at least now its a matter of law that Rachel Maddow can never be taken as true.
    [Citation Required.] Indeed the Dirstrict Court wrote: “Maddow immediately qualified the allegedly defamatory statement with a factual clarification and viewers were seeing accurate information regarding OAN on the screen while listening to Maddow.” So Maddow's story in the whole was chock-full of truth. Truths that made Maddow gleeful and OANN sad. The Circuit Court ruling affirmed that OANN had no good reason to bring MSNBC and Maddow into court over their delicate snowflake-like hurt feelings.

  • On the post: Judge Says Voting Machine Company Can Continue To Sue Trump's Buddies Over Bogus Election Fraud Claims

    rpenner1886 ( profile ), 20 Aug, 2021 @ 04:13am

    Re: Re: Re:

    It may be along the lines of a non-apology apology (i.e. I'm sorry you feel that way when I call your ugly baby ugly) without the force and effect of a published retraction by a news source with journalistic integrity.

    In April, Newsmax published an apology and retraction on its website after settling a lawsuit with Dominion employee Eric Coomer. That apology now appears to be deleted from the site. In February, OANN aired a 90-second disclaimer before a three-hour movie from Lindell featuring a host of election conspiracy theories. (emphasis added)
    Newsmax, OANN sued by maker of voting machines (August 10) From the OANN lawsuit, paragraphs 200-206 of the complaint appear to tell a compelling story of a non-apology, non-retraction. The Newsmax case was filed in Delaware Superior Court which is harder to reach than the Federal PACER system with free archives on CourtListener.com. But I think I found a copy of the complaint. Paragraphs 9, 177-193 discuss the lengths Newsmax went to distinguish its December-April response from a responsible apology and retraction. You can't guess reliably the outcome of all litigation by looking at just the complaint, but these aren't untested legal arguments but the asserted factual basis for the litigation.

  • On the post: Judge Says Voting Machine Company Can Continue To Sue Trump's Buddies Over Bogus Election Fraud Claims

    rpenner1886 ( profile ), 19 Aug, 2021 @ 09:21am

    Re: Re: Additional Dominion Cases of note

    A purported Ohioan suing in Tennessee because a D.C. complaint (by companies with homes in Colorado and Ontario) quoted a piquant phrase of a judgment in Arizona but ignored the paragraph of the D.C. complaint quoting a North Dakota judgement as to why that opinion was justified. But actually the whole complaint feels like a self-own. See for example, paragraph 9 of Maras' complaint:

    Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2). Defendants’ defamatory statements were published in this District, Defendants regularly conduct business within this District by supplying Williamson County, Tennessee with electronic voting machines and Defendants’ receive revenue from conducting business in this District.
    But 28 U.S.C. § 1391(b)(2) reads as “A civil action may be brought in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated;” That's not Tennessee. In paragraph 10, Maras admits she authored a declaration.
    In paragraph 11, Maras admits that declaration was attached to Powell's AZ complaint.
    In paragraph 13, Maras admits she presented only concerns and not evidence.
    In paragraph 14, Maras admits the AZ judge introduced the phrase "wholly unreliable sources"
    In paragraph 21, Maras admits the complained about text comes only from a legal brief filed in the District Court for D.C. [Wrong Venue, Litigation Privelege]
    In paragraph 21, the only complained about text is a single sentence:
    The ‘wholly unreliable sources’ put forward by Powell and Wood in that case (whose declarations were posted on Powell’s fundraising website) included Terpsichore [sic] Maras-Lindeman [sic], Russell Ramsland, William, Briggs, and Josh Merritt a.k.a. ‘Spyder.’”
    Which breaks dows to me as:
    • Fact: Maras wrote a declaration (see paragraph 10)
    • Fact: The declaration was among those attached to the AZ Complaint (see paragraph 11)
    • Opinion: The AZ Judge's phrase "wholly unreliable sources" applies to all the declarants with respect to the claims of fraud Powell wanted to make (i.e. "in that case") (see paragraph 13)
    But even if you ignore the importance of the phrase "in that case", paragraph 105 provides a basis for a broader read of that opinion to be held fairly. I've seen two pro se plaintiffs physically contend for the mike in front of an appellate panel, so I guess you can go to law school and still file such a complete self-own. But it does not bode well for someone in a solo practice.

  • On the post: Judge Says Voting Machine Company Can Continue To Sue Trump's Buddies Over Bogus Election Fraud Claims

    rpenner1886 ( profile ), 19 Aug, 2021 @ 12:31am

    Additional Dominion Cases of note

    My Pillow, Inc. v. US Dominion, Inc. (0:21-cv-01015)
    Filed April 19. Stayed July 6.
    Lindell v. US Dominion, Inc. (0:21-cv-01332)
    Filed June 3, Stayed July 7. it is hard to not see these as cross-complaints in a disfavored attempt to change venue for the US DOMINION, INC. v. MY PILLOW, INC. (1:21-cv-00445) case filed in D.C. The later lawsuit is also suing Dominion's competitor, Smartmatic. A status conference for both is scheduled for August 20 in light of Judge Nichols' order of August 11. Meanwhile, in Tennessee ....
    Maras v. US Dominion, Inc. (3:21-cv-00636)
    Filed August 16. Plaintiff appears to have hurt feelings because Dominion is suing Powell who used Plaintiff sworn affidavit to no good effect. Two word motion to dismiss: "Litigation Privilege" which is an actual thing rooted in the actual First Amendment. The real battle will be over what the Plantiff's name is as in this filing she prefers "Terpsehore Maras" but in news stories "Terpsichore Maras-Lindeman" (Washington Post and Newsweek) is used while she blogs under a nickname and North Dakota alleges a handful of other names. Also, Plaintiff claims to live out-of-state and doesn't suggest a reason why venue really ought to be in Tennessee. For example, Dominion Voting Systems Corporation is a for-profit Ontario corporation with its principal place of business in Toronto, Ontario (not Colorado like the Delaware corporations or Tennessee where the suit was filed). h/t https://abovethelaw.com/2021/08/kraken-witness-files-defamation-suit-against-dominion-for-oh-who-the-hell-even-knows/

  • On the post: Judge Says Voting Machine Company Can Continue To Sue Trump's Buddies Over Bogus Election Fraud Claims

    rpenner1886 ( profile ), 18 Aug, 2021 @ 11:46pm

    Additional Dominion Cases at note

    Additional cases filed against Dominion: December 22, 2020 O'Rourke v. Dominion Voting Systems, Inc. (1:20-cv-03747)
    A purported class-action lawsuit against Dominion, Facebook, government officials and a cast of thousands for alleged violations of the Constitution under color of that evil section 230.

    • February 16 Motions to dismiss filed by Dominion and Facebook (Documents 22, 23)
    • March 9 Response to 22, 23 (Documents 39, 40)
    • March 10 Motion to dismiss by Center for Tech and Civic Life (Document 41)
    • March 10 Facebook points out Document 40 is 25 pages long when the rules allow only 15.
    • March 11 Judge Neureiter: “I'll allow it.” But Facebook gets additional pages to reply. (Document 43)
    • March 15-16 Motions to dismiss by Michigan Defendants, Georgia Defendants, Pennsylvania Defendants (Documents 46, 47, 49)
    • March 15 Plaintiffs propose amended complaint with at least 200 extra paragraphs. Document 48
    • March 23 Reply to 39, 40 (Documents 55, 56)
    • March 29 Responses to 48: (Documents 58-63)
    • March 31 Repsonse to 41 by Plaintiffs (Document 64)
    • April 8-9 Replies to 58-63 (Document 71, 73-77)
    • April 8 Response to 49 (Document 72)
    • April 12 Responses to 47, 46 (Documents 79, 80)
    • April 14 Reply to 64
    • April 19 Plaintiffs give up on suing out-of-state state employees (Documents 82-85)
    • April 20 Plaintiffs make another stab at dismissing out-of-state state employees (Document 87)
    • April 28 Judge Neureiter dismisses what is left of the case and denies leave to amend as futile.
    But then...
    • April 29 Plaintiffs appeal to attempt to revive the case against Dominion, Facebook and the Center for Tech and Civic Life This is now twice deferred and the opening brief is not due until September 2.
    • May 13 Dominion moves for suctions (Document 98)
    • May 17 Pennsylvania defendants move for sanctions (Document 101)
    • May 21 Center for Tech and Civic Life and Facebook move for suctions (Documents 102, 103)
    • June 9 Michigan defendants move for sanctions (Document 109)
    • June 10 - July 8 Plaintiffs responds to motions for sanctions (110, 114, 118, 127)
    • Jun 24 - July 15 Plaintiffs replies (121, 122, 125, 126, 131)
    • July 16 The sanctions hearing
    • July 20 (The plaintiffs make a second motion in appellate court for more time for their opening brief.)
    • July 21 (The appellate court approves the delay until September 2, but cautions:
      The appellants should note, however, that no further extensions of time to file the opening brief and appendix will be granted if premised on the pendency of post-judgment motions for attorney’s fees or sanctions. Such motions are collateral to the judgment, and any appeal of an order addressing such matters will be a new and separate appeal. (citations omitted)
    • August 3 Sanctions GRANTED (Document 136)
    Also Document 90 was an attempt to unleash the kraken via importing all the other cases but the judge denied it.

  • On the post: Man Who Sued Apple For Failing To Save Him From Porn Now Suing US Attorney General To Strike Down Section 230

    rpenner1886 ( profile ), 18 Aug, 2021 @ 08:24pm

    Re: More Chris Sevier

    In Trump v. Facebook: August 4 (Document 27) Sevier says he wants to talk about his proposed law and Section 230. August 17 (Document 32) Judge Williams allows 30 page motion for preliminary injunction, but not 75. August 18 (Document 33) Trump's attorneys to Chris Sevier: "No thank you."

    Courts have squarely held that amicus briefs like those submitted by DSW here are improper, particularly at the district court level. DSW’s arguments are not ripe, Defendants have not been served, and the relief requested is impractical at best.
    Someone may be paraphrasing these last seven words back to them in the future ... August 18 (Document 34) Judge Williams hand Trump (or, perhaps sanity) a win:
    the amici’s motion for leave to file a brief as amici curiae (DE 27) in this matter is DENIED.
    Meanwhile, in Trump v. YouTube an amended motion for excess pages fared no better with Judge Moore and they still have 30 pages for preliminary injunction, not 75. Is that a success of 50% (from the default limit of 20) or a failure of 60%.

  • On the post: Judge Says Voting Machine Company Can Continue To Sue Trump's Buddies Over Bogus Election Fraud Claims

    rpenner1886 ( profile ), 18 Aug, 2021 @ 09:41pm

    Suggested Correction

    It is not lawsuit, but lawsuits.

    Dominion has sued separately three separate groups of Defendants: Powell, Powell's law firm and Powell's organization “Defending the Republic”; Lindell and MyPillow; and Giuliani, which due to a maximum RDA of crazy (or perhaps judicial economy) have been lumped together as related cases with a single judge, covering all the arguments in all the motions to dismiss, ruling in favor of Dominion on August 11.

    US DOMINION, INC. v. POWELL (1:21-cv-00040)

    • March 22 Motion to dismiss (Document 22)
    • May 3 Dominion's response (Document 39)
    • May 24 Reply to Dominion (Document 40)
    • August 11 Judge Nichols order denying 22 (Document 44)
    • August 11 Judge Nichols Legal memorandum as above (Document 45)

    US DOMINION, INC. v. GIULIANI (1:21-cv-00213)

    • April 7 Giuliani's motion to dismiss (Document 26)
    • May 5 Dominion's response (Document 28)
    • May 24 Giuliani's reply (Document 30)
    • August 11 Judge Nichols order denying 26 (Document 35)
    • August 11 Judge Nichols Legal memorandum as above (Document 36)

    US DOMINION, INC. v. MY PILLOW, INC. (1:21-cv-00445)

    • April 19 My Pillow motion to dismiss (Document 30)
    • April 34 Lindell motion to dismiss (Document 34)
    • May 28 Dominion's response (Document 47)
    • June 18 Lindell reply (Document 48)
    • June 18 My Pillow reply (Document 49)
    • August 11 Judge Nichols order denying 30 & 34 (Document 53)
    • August 11 Judge Nichols Legal memorandum as above (Document 54)

    Recently two new related lawsuits were filed in this District Court for the District of Columbia:

    These defendants get to make fresh motions to dismiss, but face the same Judge Nichols, who might get a bit tetchy if they just cut-and-paste from Powell and Lindell.

  • On the post: Man Who Sued Apple For Failing To Save Him From Porn Now Suing US Attorney General To Strike Down Section 230

    rpenner1886 ( profile ), 16 Aug, 2021 @ 09:52pm

    Re: Re: Trump v. everyone else

    Trump v YouTube
    Asked for unlimited pages, amended the motion to request 75, got 30. Trump v Twitter
    Asked for unlimited pages, denied.

    The Court denies without prejudice 30 the Plaintiff's motion for leave to file excess pages. The motion for leave fails to specify how many additional pages the Plaintiff requests for his forthcoming motion for preliminary injunction. Additionally, the motion lacks a certificate of conferral as required by Local Rule 7.1(a)(3). The Plaintiff contends that a certificate of conferral is not required because the Local Rule exempts motions for preliminary injunction. However, the subject motion is a motion for leave not a motion for preliminary injunction or any of the other of the motions exempted by the Rule. Accordingly, after meaningful conferral, the Plaintiff may refile a motion for leave to file excess pages curing the deficiency identified in this order.
    Who could have predicted this?! Trump v Facebook
    Asked for unlimited pages, amended the motion to request 75, motion still pending.
    Pursuant to S.D. Fla. L.R. 7.1, the Motion for a Preliminary Injunction does not require a
    pre-filing conferral. Accordingly, Plaintiff requests leave from this Honorable Court to file said
    motion in excess of the local rule page limit. Defendants will be served with the Motion for
    Preliminary Injunction immediately after it is filed.
    But that's not how Judge Scola reads LR 7.1

  • On the post: Man Who Sued Apple For Failing To Save Him From Porn Now Suing US Attorney General To Strike Down Section 230

    rpenner1886 ( profile ), 14 Aug, 2021 @ 04:41am

    Re: Trump v. everyone else

    Very similar Motions to File Excess Pages for a forthcoming Motion for Preliminary Injunction are also filed in Trump v. YouTube Document 32 and Trump v. Facebook Document 30. How do lawyers bill for that? Which of the three cases gets the bulk of the drafting fees and which get just 6 minutes of copy and paste? And why do they need to bog down 3 separate judges with oversize preliminary injections?

    The Defendant’s ongoing practices violate the First Amendment to the U.S. Constitution,
    Unlikely, as per the text of said First Amendment
    In addition to an ordinary case where twenty pages is more than adequate for the evaluation of a Motion for Preliminary Injunction, this case requires:
    ...
    (2) the existence of multiple constitutional issues that have not been litigated in any court in the Southern District of Florida; ...
    Because a private company violating the First Amendment isn't a thing, and claiming that Defendant was acting in concert with the U.S. Government is a problem when the Plaintiff was the unitary executive of the U.S. Government and tried to style himself so after the term expired.

  • On the post: Man Who Sued Apple For Failing To Save Him From Porn Now Suing US Attorney General To Strike Down Section 230

    rpenner1886 ( profile ), 14 Aug, 2021 @ 03:57am

    Re:Trump v. Twitter

    In Trump v. Twitter Document 30 is a motion to allow excess pages for a pending Motion for a Preliminary Injunction. How many excess pages? It doesn't say! I've gone through the Local Rules the best I can as a non-attorney, and think there is another reason the motion should be denied. LR 7.1(a)(3). LR 7.1 (a)(3) seems to require a certificate of conference with opposing council except for some cases including ex parte motions. LR 5.3 (d) places certain requirements on the form of ex parte motions (title, statement as to reasons, method of filing) which don't appear. Conference with opposing counsel? Nope. Twitter hasn't yet made an appearance, and the document coyly indicates they notified all parties who made an appearance.Would that turn this into an ex parte motion? If so, where is the proposed order apparently required by LR 7.1 (a)(2) ? And LR 7.1 (a)(3) doesn't say to confer with all attorneys who have made an appearance but all parties. So am I reading this right?

  • On the post: Man Who Sued Apple For Failing To Save Him From Porn Now Suing US Attorney General To Strike Down Section 230

    rpenner1886 ( profile ), 07 Aug, 2021 @ 03:20am

    Re: Not 100% copy-paste but...

    Both purported amici briefs are rather idiosyncratic documents which share a lot of text. Is it a typo in the brief or a typo in the domain registration that liberty is misspelled on the first page of both in a prominent location?

    www.specialforcesoflibety.com
    Both filings are certain that June 30 order to grant a preliminary injunction in Netchoice LLC v. Moody (4:21-cv-00220 Southern District Florida, Docket 113) somehow puts Federal law (Section 230) at risk or creates a duty for the Florida legislature to pass Sevier's preferred law. That's not how any of this works. The Netchoice LLC v. Moody injunction preserves the status quo and is currently under appea — which has not been briefed yetl. The Florida law has not yet been invalidated by final order. It is hard for me to see that Netchoice LLC v. Moody is cause for action yet other than the clear writing of the filings and orders (and the writing on the wall).

  • On the post: Man Who Sued Apple For Failing To Save Him From Porn Now Suing US Attorney General To Strike Down Section 230

    rpenner1886 ( profile ), 07 Aug, 2021 @ 02:23am

    Re: More Chris Sevier

    Documents 16-17 in Trump v. Twitter, Inc (1:21-cv-22441 Southern District Florida) show Chris Sevier tried file as Amici in this case on July 16 (before Sevier et v. Garland). But in an order (Document 20) on July 27, Judge Scola denied the petition and ordered the brief stricken.

    ... the proposed amicus brief does little to help the Court determine issues raised in this action. For example, although the motion represents that the amici will aid the Court in determining whether the Plaintiffs’ have standing to bring this action (ECF No. 16 at 1), the proposed amicus brief is silent as to that point. Further, the proposed amicus brief is silent as to the constitutionality of Section 230, going as far as calling it “generally good law.” (ECF No. 17 at 6.) The brief is exclusively dedicated to advocating for the passage of the Stop Social Media Censorship Act, a proposed bill in Florida. Notably, the Plaintiffs in this action have not alleged any facts related to that bill. Lastly, the amici argue that disposition of this action may affect a forthcoming action against the Attorney General of the United States. While the motion does not identify that case, it appears that the amici refer to Sevier et al. v. Garland et al., 21-22577-Civ, pending before Judge Darrin P. Gayles, which the amici filed in this district on July 20, 2021. Even though that case questions the constitutionality of Section 230, the proposed amicus brief here does not address that issue and is thus helpful to neither the Court nor the parties in this case.
    (emphasis added)

  • On the post: Man Who Sued Apple For Failing To Save Him From Porn Now Suing US Attorney General To Strike Down Section 230

    rpenner1886 ( profile ), 06 Aug, 2021 @ 04:13pm

    Document 27 in Trump v. Facebook (1:21-cv-22440 Southern District, Florida) is a filing by Chris Sevier which appears to be a (the?) related Amici petition. It was filed on August 4.

    The above complaint is from Sevier et v. Garland (1:21-cv-22577 Southern District, Florida) filed on July 20, almost 2 weeks after Trump sued each of Facebook, Twitter and You Tube.

  • On the post: DailyDirt: I'm Givin' Her All She's Got, Captain…

    rpenner1886 ( profile ), 06 Aug, 2014 @ 03:30pm

    Re: Re: EmDrive Not Proven Yet?

    I disagree. It is not "thrust" that is demonstrated but a signal from an apparatus which is designed to measure "thrust" if it exists. However, the questions not well explored in the paper is what else might contribute to this signal, and how the signal varies as a function of frequency, power and atmospheric pressure.

    Francis Bacon: Knowledge is power.
    Ben Parker: With great power comes great responsibility.
    Carl Sagan: Extraordinary claims require extraordinary evidence.

    It seems we have the extraordinary claims and a paucity of extraordinary evidence. The paper doesn't even come with error bars.