clark baker – Techdirt (original) (raw)

from the beating-back-the-bullies dept

Almost three years ago, a team of pro bono attorneys (D. Gill Sperlein, Paul Alan Levy, Gary Krupkin and Neal Hoffman) took up the defense of Jeffrey DeShong, an HIV-positive blogger who had been served a bogus trademark infringement lawsuit by Clark Baker, a retired LAPD officer who spends his free time defending people who have hidden their HIV-positive status from sexual partners.

Baker had no legal basis for his claims, but was obviously hoping airy claims of Lanham Act violations based on URL similarities would be all that was needed to shut up a vocal critic. He was wrong. The lawsuit was tossed in the pleading stages by the district court and that decision was upheld by the Fifth Circuit Court.

What the appeals court did not address the first time around — shifting legal fees to the vexatious litigant — has now been addressed. The Fifth Circuit Court of Appeals, at the urging of DeShong’s defense team, has taken a new approach to its standard for fee shifting in obviously bogus lawsuits. Paul Alan Levy explains:

The federal court in Dallas readily dismissed the trademark claims on the face of the complaint, then declined to retain jurisdiction over the state-law defamation claims; in that way, the trial judge avoiding having to address DeShong’s anti-SLAPP motion. But even though our path to overruling the Fifth Circuit’s rule got easier when the Supreme Court held, in Octane Fitness, that the term “exceptional cases” in the Patent Code is not limited to lawsuits brought in bad faith, the trial judge was unwilling to buck clear Fifth Circuit precedent: he denied our fee motion relying on the Fifth Circuit’s bad faith standard. Today, however, the Fifth Circuit held that its previous bad faith standard (and its requirement of clear and convincing evidence) has been effectively superseded by the Supreme Court’s ruling in Octane Fitness. Henceforth, “an exceptional case is one where (1) in considering both governing law and the facts of the case, the case stands out from others with respect to the substantive strength of a party’s litigating position; or (2) the unsuccessful party has litigated the case in an ‘unreasonable manner.'”

This new standard will make it easier for defendants facing SLAPP-type lawsuits to retain counsel, as there’s a significantly better chance for fee awards once courts have examined the case. Levy, however, notes that this won’t help much in this lawsuit, as the trademark bully filed for bankruptcy while the appeal was pending. This not only means it’s highly unlikely the $50,000 in fees requested will ever make their way to DeShong’s defense team, but the filing also allowed Baker to drag out the appeals process for an additional year.

This outcome doesn’t help the defense team’s bottom line but for free speech defenders like Paul Levy and his partners in this case, the precedent set here is the bigger win. This should act as a deterrent against future acts of censorship-via-litigation in the Fifth Circuit’s jurisdiction and lays another brick on the path towards a unified judicial stance against censorship through litigation.

Filed Under: clark baker, hiv denial, jeffrey deshong, legal fees, trademark, trademark bully

Court Upholds Decision Against Trademark-Bullying AIDS Denialist, But More Needs To Be Done To Deter Censorious Lawsuits

from the a-win,-but-not-a-fix dept

You may wonder what kind of person would deny that HIV leads to AIDS or death, but when you come across someone like prominent “AIDS denialist” Clark Baker, you may be inclined to believe that this is but a small part of his misanthropy. Baker has — previous to his IP-abusing lawsuit against an HIV-positive blogger — been arrested for assaulting a jaywalker and provides legal counsel to people accused of endangering sexual partners by concealing their HIV/AIDS status.

Baker sued a critic of his (the above-mentioned blogger) but had no legal basis for doing so. This didn’t stop him from pursuing the lawsuit because intellectual property laws always seem willing to lend a hand when there’s some censoring to be done. Baker originally skewed the blogger’s postings as defamatory, but apparently wasn’t too confident in letting that accusation stand on its own. So, he added something about trademark law — supposed Lanham Act violations tied to the use of his entity’s (HIV Innocence Project) name in the defendant’s URL (hivinnocenceprojectruth.com).

The addition of trademark bullying resulted in a net loss for Baker at the hands of the Fifth Circuit Court.

Although the appellate decision itself is not very illuminating, the fact that the court indicated that its reasoning was the same as that of the trial judge helps illuminate the ruling as well as reinforcing the important precedent that it set — that when a defamation plaintiff throws in a trademark claim to justify suing in federal court, as well as hoping to make the whole proceedings more intimidating to the defendant, it really is possible to get the case thrown out at the pleading stage.

Good news for bloggers, as Public Citizen’s Paul Alan Levy points out. Getting a case tossed at the pleading stage saves a whole lot of money and bloggers who utilize trademarks in their writing (especially when writing critical pieces) need a safety valve to prevent them from trademark bullies. This case does offer some hope in that respect, although there’s still many gray areas of IP law left untouched in the decision — including crucial defenses like protected speech and fair use.

The main reason why Levy took this case (apart from answering the Popehat signal) is to help establish precedent in terms of legal fee awards in clear cases of trademark bullying. The Fifth’s two-page affirmation of the lower court’s decision leaves this particular aspect unaddressed.

But I have been concerned about the fact that some circuits, the Fifth Circuit among them, set a standard for awarding attorney fees for winning trademark defendants — demanding a showing of bad faith by clear and convincing evidence. There is wide-ranging agreement among the various circuits about just what standard should govern trademark attorney fees awards. Our long-standing argument has been that, when a trademark theory is used to try to shut down an expressive use, groundlessness of the claim should alone be sufficient to treat the claim as “exceptional.”

What has been applied to patent cases by the Supreme Court should also be applied to trademark cases, Levy argues in a brief to the circuit court. In Octane Fitness v. Icon Health and Fitness, it ruled that the groundless nature of the lawsuit itself can be enough to award attorneys’ fees — overturning a lower court’s finding that this alone wasn’t sufficient enough to raise the case to the “exceptional” level.

In our brief to the Fifth Circuit on the fees issue, we argue that because the Lanham Act and Patent Act both allow awards of fees in “exceptional” cases, and because a variety of other aids to statutory construction suggest that the standards for fees under the Lanham Act should follow patent-law precedent, the court ought to take Octane Fitness as its new governing standard for trademark cases. We also argue that the fact that the complaint could have been dismissed on several different grounds supports a conclusion that the lawsuit was sufficiently lacking in merit to warrant an award of attorney fees without considering the evidence that plaintiffs were using the litigation to pursue the improper purpose of intimidating a critic and using discovery to pursue some pretty wild conspiracy theories.

Better deterrents are needed to ward off future censorious lawsuits. Anti-SLAPP laws are a start, but they’ve only been adopted in a handful of states. Precedent from a higher court would at least establish a new baseline in the court’s district, sending the message that baseless lawsuits — if not tossed nearly immediately — will open plaintiffs up to further damages in the form of legal fees.

Filed Under: aids denialist, attorney fees, bullying, censorship, clark baker, free speech, trademark

AIDS Denialist Files Defamation Suit In Hopes Of Silencing HIV-Positive Critic

from the a-thug-with-a-headful-of-bad-wiring-and-his-own-jackboots dept

Ken White at Popehat has fired up the Popehat Signal again, seeking legal assistance for a blogger on the receiving end of legal abuse from the “most despised inhabitant of the internet playground: the bully who can dish it out but can’t take it.”

The bully in question is Clark Baker, former cop and current AIDS denialist (i.e., someone who believes HIV does not cause or lead to AIDS). He and his representation (Mark Weitz of Weitz Morgan PLLC) have filed a lawsuit against J. Todd Deshong, an HIV-positive blogger and activist, for “trademark infringement, defamation, ‘business disparagement,’ and for injunctive relief.”

Baker is a piece of work.

He was convicted of battery on the allegation he assaulted a jaywalker; that conviction was overturned based on misconduct by the prosecutor, who gratuitously and unethically invoked the Rodney King incident. Now he’s a private investigator and runs the “Office of Medical and Scientific Justice,” which provides, among other things, help to people accused of endangering sexual partners by failing to disclose HIV or AIDS status.

Baker blogs as well and that’s where his AIDS denialism ran head on into Deshong’s activism. The “discussions” between the two have been far from pleasant as one can probably infer from the strong views and the subject matter. But Baker’s lawsuit is simply a vehicle for silencing a strong critic — one he’d rather not have rebutting his arguments and pointing out his errors.

The list of complaints in Baker’s suit are rather strange. The de rigeur defamation charge is there, but where do “trademark infringement” and “business disparagement” fit it?

The trademark claim is based on Deshong’s use of “HIV Innocence Group” to criticize Clark Baker’s activities. Baker lost that argument conclusively before a Uniform Domain Name Resolution panel:

“The Panel finds Complainant has engaged in reverse domain name hijacking because it was clear Respondent was legitimately using Complainant’s mark to make a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. Complainant clearly knew this before it began this proceeding. Complainant did not disclose this obvious fact in its Complaint.”

Mr. Baker is bitter at that result:

“Unfortunately, the arbitration body had no expertise in trademark or trade name infringement and allowed Deshong’s unsupported assertions of good faith usage to stand.”

Add “sore loser” to “playground bully.” And “business disparagement?”

Mr. Baker’s defamation and “business disparagement” claims are premised on a combination of vague characterizations of Mr. Deshong’s speech or explicit references to statements of opinion and advocacy. For instance:

“Deshong’s stated purpose is not informational or in any way fair use. He admits in writing on-line that his purpose it to “deconstruct” the HIV INNOCENCE GROUP. He states that his goal is the economic destruction of Clark Baker and OMSJ. In his own words he states, “It is therefore the sole purpose of this site to provide the general public, and attorneys seeking Baker’s help, and any interested parties, the proof that Clark Baker’s Innocence project, now called the Innocence Group is a useless tool of AIDS denialist propaganda.” This stated purpose undermines any notion that the confusion Deshong causes and the infringement of OMSJ’s trade name is for any fair use or enjoys any protection thereunder. The admitted purpose is to economically destroy Baker and OMSJ.”

There’s more and it’s all very entertainingly detailed (and rebutted by Ken White) but the crux of the issue is clearly spelled out in Baker’s lawsuit.

Finally, Mr. Baker reveals the core of his: he thinks Mr. Deshong should not be allowed to say that AIDS denialism is a hoax:

“They allege that Plaintiff Baker is incompetent, that he knowingly makes false and misleading representations to the public, that his legal and scientific theories with regard to HIV are a hoax, that Baker’s reputation as a former LAPD police officer is misleading, and other personally disparaging remarks.”

To which I reply: AIDS denialism is a junk-science hoax with tragic results to its victims. Come get me, you censorious thug. Jenny McCarthy, you want a piece? Get in line.

This isn’t the first time that junk-science purveyors have filed lawsuits to shut critics up. Ken lists several other cases, including AIDS denialist Celia Farber who sued a critic (and lost), as well as one of the pioneers of the anti-vaccine movement, Andrew Wakefield, who sued his critics (and lost). There’s a pattern here, and that pattern doesn’t bode well for Clark Baker.

Despite the lousy track record of dubious persons suing their critics, and despite the fact that Baker’s case is full of holes, there’s still a chance that Deshong could lose, or if nothing else, spend a whole lot of money defending himself against bogus claims. Hence the Signal:

Todd Deshong needs help. He’s being sued for attacking junk science; he’s being sued by the sort of loathsome nutter who threatens the mothers of critics. Your freedom to speak without fear of censorious and frivolous litigation chilling you depends on the willingness of people to step up in situations like this. If nobody helps Todd Deshong, then anybody can be driven to penury by a flawed legal system that serves as a vehicle for despicable and un-American censorship by lunatics of every stripe.

This is the true danger of those unwilling to fight speech with speech and resort instead to legal threats in order to “win” arguments — a chill on expressing your opinions or taking on purveyors of bad ideas or pseudoscience on the internet battlefield. People who find their rhetoric stymied by the strong rebuttals of others resort to all sorts of logical fallacies and ad hom attacks, and when that fails to halt the flow of critical speech, they will often attempt to turn the legal system into a vehicle for censorship. Sometimes they even succeed. And each time they do, it raises hope in other blustering jackasses who feel your freedom of speech should be subject to their whims — or hurt feelings.

Filed Under: aids denialist, censorship, clark baker, defamation, free speech, hiv positive, j. todd deshong