defamation – Techdirt (original) (raw)

What Free Speech? Trump Ramps Up Threats To Sue Publishers Over Their Speech

from the presidential-chilling-effects dept

We just warned folks that Donald Trump would be one of the most anti-free speech Presidents in history, and he seems to have no qualms living down to that reputation.

Donald Trump’s history of frivolous lawsuits against media outlets shows his disdain for free speech, and he shows no signs of stopping. The Columbia Journalism Review has an article exploring a bunch of other legal threats Trump and those around him have been flinging at news and book publishers over their speech.

These threats are part of a disturbing pattern of Trump trying to silence and intimidate his critics:

The letter, addressed to lawyers at the New York Times and Penguin Random House, arrived a week before the election. Attached was a discursive ten-page legal threat from an attorney for Donald Trump that demanded $10 billion in damages over “false and defamatory statements” contained in articles by Peter Baker, Michael S. Schmidt, Susanne Craig, and Russ Buettner.

It singles out two stories coauthored by Buettner and Craig that related to their book on Trump and his financial dealings, Lucky Loser: How Donald Trump Squandered His Father’s Fortune and Created the Illusion of Success, released on September 17. It also highlighted an October 20 story headlined “For Trump, a Lifetime of Scandals Heads Toward a Moment of Judgment” by Baker and an October 22 piece by Schmidt, “As Election Nears, Kelly Warns Trump Would Rule Like a Dictator.”

“There was a time, long ago, when the New York Times was considered the ‘newspaper of record,’” the letter, a copy of which was reviewed by CJR, reads. “Those halcyon days have passed.” It accuses the Times of being “a full-throated mouthpiece of the Democratic Party” that employs “industrial-scale libel against political opponents.”

Of course, none of this is new. Donald Trump has a long history of threatening and suing news organizations for their factual reporting. The point is not that many of these lawsuits eventually get tossed out of court. The real goal is to harass and punish media outlets for daring to criticize or investigate him.

Even when these lawsuits are eventually dismissed, the process is the punishment. The punishment is the process. News organizations are forced to divert time and money defending against frivolous claims, while journalists may think twice about pursuing tough stories out of fear of ending up in court. It’s an insidious form of soft censorship that undermines the media’s vital watchdog role.

This is especially galling given how frequently I saw people say that in the election they supported Donald Trump because “he stood for free speech” while simultaneously claiming that Kamala Harris “wanted censorship.” This was a key line that JD Vance used, without ever backing it up, because it wasn’t ever true.

Harris hasn’t sued the media for critical reporting. Trump has, over and over and over again and continues to threaten more such lawsuits.

Free speech actually means something, and the idea that Trump supports it is laughable. But, of course, his fans won’t care because they don’t actually care about free speech. That was just a convenient excuse. They’re happy to support speech suppression lawfare when they see it aimed at their perceived “enemies” in the media.

And all of this is why we need a federal anti-SLAPP law, but it seems quite unlikely Donald Trump will sign one while he’s the President.

Filed Under: 1st amendment, anti-slapp, chilling effects, defamation, donald trump, free speech, slapp suits
Companies: ny times, penguin random house

Threatened With A Ban In India, Wikimedia Agrees To Hand Over Personal Information About Wikipedians To Delhi High Court

from the chilling-effects dept

As Techdirt stories attest, Wikipedia has been attacked in the past for publishing true information that somebody doesn’t like. As well as wanting articles to be censored, those behind such attacks often also demand the names of those who worked on the article. Something similar is now happening in India, where the Indian news agency Asian News International (ANI) has filed a lawsuit against Wikimedia Foundation in the Delhi High Court, claiming to have been defamed in an article on Wikipedia, and seeking 20 million Indian Rupees (about US$240,000) in damages. The Wikipedia article on ANI explains the background:

At the time of the suit’s filing, the Wikipedia article about ANI said the news agency had, “been accused of having served as a propaganda tool for the incumbent central government, distributing materials from a vast network of fake news websites, and misreporting events on multiple occasions”. The filing accused Wikipedia of publishing, “false and defamatory content with the malicious intent of tarnishing the news agency’s reputation, and aimed to discredit its goodwill”.

On 5 September, the Court threatened to hold Wikimedia guilty of contempt for failing to disclose information about the editors who had made changes to the article and warned that Wikipedia might be blocked in India upon further non-compliance.

More recently, an article on the Indian site Scroll.in reported that:

Buckling under the court’s pressure, Wikimedia agreed to submit data of the editors of ANI’s Wikipedia page to the High Court in a sealed cover. However, it proposed redacting personal details of these Wikipedians from public court records and serving notice in the case to them, to ensure confidentiality.

Wikimedia’s decision to share user information with the court may lead to users who edited the ANI page getting involved in the suit. This is a matter of concern for Wikipedia editors, who see this as an infringment of their freedom of speech. “Disclosure of the identities of contributors without an offence being established first will have a chilling effect on the community,” researcher, technologist and Wikipedian Rohini Lakshané explained to Scroll

There is a lively discussion about the case and its implications on the Wikipedia Community pages, a very detailed explanation of what has happened in a Wikipedia Signpost article, and a petition to the Wikimedia Foundation. The latter’s signees say that they are “profoundly concerned at the suggestion that the Foundation is considering disclosing identifying private information about volunteer editors to the Delhi High Court”, and they call upon the Foundation to “prioritize the safety and well being of volunteers, even if it comes with a risk of legal action against the Foundation, or other costs.” The petition concludes:

Any other action risks having a chilling effect on the work of volunteers across the project, and only makes it more likely that such pressure will be exerted in future. In short, it jeopardizes the future of our shared project.

That applies not just to the Wikipedia project in India, but elsewhere. Giving in to demands to reveal the identity of people working on articles in India is likely to embolden those in other countries who would like to make awkward facts disappear and to punish those who dare to reveal them.

Follow me @glynmoody on Bluesky and on Mastodon.

Filed Under: chilling effects, defamation, delhi, fake news, india, petition, propaganda, wikimedia, wikipedia
Companies: Asian News International, wikimedia foundation

A Win For Press Freedom: Court Allows Reuters To Republish Story On Shady Indian Firm

from the anti-suppression dept

You may recall last December when we wrote about the somewhat shocking news that an Indian court had ordered Reuters to take down an entire article investigating a company, Appin and its founder Rajat Khare, that were accused of running a giant “hacking for hire” operation. Ten months later, that article is back online with a new editor’s note:

Editor’s note: This article, originally published on Nov. 16, 2023, was removed from Reuters.com in response to a temporary injunction issued by a New Delhi district court on Dec. 4, 2023. Before publication, a group calling itself the Association of Appin Training Centers had filed suit to prevent the report from running. The association accused Reuters of damaging the reputations of training centers and their students, an allegation Reuters disputes. After publication, the court granted a temporary injunction, and Reuters took down the story while it appealed. On Oct. 3, 2024, the district court vacated its injunction. The article has now been reposted here, with an update in paragraph 14 to note that there’s no suggestion that bona fide students of the training centers were involved in hacking.

Appin had gone around using various law firms (including the infamous speech suppressors at US law firm Clare Locke) to demand publications remove articles or mentions of Khare. Some, such as Lawfare (which absolutely knows better), caved and took down or redacted their stories. Others (like us) refused to be bullied.

I was able to get my hands on the recent Indian court order that dismissed the original injunction. Experts in Indian law had told me last year that the kind of injunction that forced Reuters to take down its story were unfortunately common. They were based not on a full review of the situation, but rather the courts were often willing to take an “injunction first, investigate later” approach to things, which could take some time, given how busy the courts are.

It appears that’s what happened. Once the court finally looked at the issue (albeit nearly a year after forcing the article down), they realized that it did not make sense to suppress it and allowed it to come back.

The court here even notes that the Indian Supreme Court has more or less said that courts shouldn’t issue an injunction against publication, so long as the journalism organization “intends to justify” what they wrote, and that what they wrote is “a matter of public interest.”

Quoting from some English decisions, the Hon’ble Supreme Court further indicated that the Court will not restrain the publication of an article, even though it is defamatory, when the defendant says he intends to justify it or to make fair comment on a matter of public interest.

The court then notes that since some of the concerns are about students of the Appin training centers feeling maligned, and Reuters agreed (as in the note above) to clarify that they were not implying actual students of the training centers were involved in any hack-for-hire scheme, the court deemed that the injunction should be dismissed and the article could be put back online:

From the arguments of parties and also from the available record I am unable to find any justification to issue interim injunction against publication of articles or published articles. However, during the course of arguments, Ld. Counsel for defendant no.1 to 4 (i.e. the main contesting parties) have assured that his clients are not interested in maligning the reputation of students and also the plaintiff association which came into being only in the year 2022 and that the articles will have necessary clarificatory massage incorporated therein. In such circumstances, binding such defendants with the assurances so given, it is held that as at present, the plaintiff has not been able to show any prima facie case to make interference in the process of journalism.

The interim injunction application of the plaintiff is dismissed.

It does seem somewhat crazy, though, that this article was unavailable for nearly a year when the court is saying that it can’t “find any justification” for an injunction, and that the Supreme Court has already established that the courts should not restrain the publication of an article.

And yet, the courts did exactly that for almost a year.

Of course, now that the article is back again, it seems likely to get renewed attention to the whole thing. So, if Rajat Khare’s lawyers want to contact us and reveal other things they insist he had nothing to do with (even things no one was reporting on), feel free to reach out.

Or maybe Khare and his lawyers can just respond to the allegations, rather than trying to suppress speech.

Attacking the media through lawfare techniques (yes, it’s ironic that a publication named Lawfare caved to this nonsense) is unfortunately common. It’s ridiculous, stressful, and resource-intensive for the publications and reporters involved. Thus, it’s good to celebrate and highlight the victories when they come through. Congrats to Reuters for succeeding here.

Filed Under: defamation, free speech, india, prior restraint, rajat khare, reporting, speech supression
Companies: appin, clare locke, reuters

Federal Court Tells Lawyer Something He Already Should Know: Facts Aren’t Defamation

from the real-estate-firm-GC-acting-like-it's-his-1st-day-on-the-job dept

Sometimes, people who think they know things about defamation pursue their own lawsuits, making fools of themselves because they so very firmly believe anything said about them that they don’t like must be libel.

Then there are the lawyers who do the same thing. They should know better. Even if they don’t specialize in defamation law or First Amendment issues, they must be aware of the general principles. Presumably, this sort of thing is addressed during their years at law school and some aspects must be part of testing required to pass the bar exam.

And yet, certain lawyers act as though they’ve never heard of defamation law and handle it like the most ill-informed of laypeople. They forge ahead with libel lawsuits where their only argument is that they think it must be actionable that someone else said mean things about them.

This case involves public actions by a real estate firm that followed public actions taken by a judge against the lawyer-turned-litigant in a prior civil case. (via Courthouse News Service) Here are the facts according to the judge, which, ironically enough, happen to be the same facts attorney Brett Soloway felt he needed to sue over after they were reported publicly.

Soloway used to work for real estate giant Cushman and Wakefield. He served as general counsel from 2014 to 2023 for the real estate firm. While still employed by Cushman and Wakefield, the company was subpoenaed by the New York Attorney General to produce documents related to the AG’s fraud case against the Trump Organization.

Cushman and Wakefield was less than fully compliant, leading to a a bit of benchslap from the judge and a contempt of court order for failing to respond to the subpoena. This happened in 2022, while Brett Soloway was still employed as the firm’s general counsel. Seven months later, Soloway resigned and Cushman issued a press release announcing the arrival of its new general counsel.

The day after that, Law.com journalist Hugo Guzman published an article that delivered several factual facts about Soloway’s exit, the firm’s entanglement in the Trump Organization prosecution, and the seemingly apparent connection between the contempt order and the unexpected exit of the firm’s general counsel. These facts — bullet-pointed in the federal court decision [PDF] — form the basis of Soloway’s (unfounded) defamation claims.

The subheadline read, “The real estate services giant says it has hired former Archer Daniels Midland attorney Noelle Perkins as legal chief. It didn’t explain the departure of GC Brett Soloway, who has been removed from the company’s website.”

An introductory section was titled “What You Need to Know” and referenced, in bullet points, Cushman’s “long-standing relationship with the Trump Organization,” the “deluge” of subpoenas Cushman had received from the New York Attorney General, the July 2022 contempt holding, and the later lifting of the contempt holding.

The first paragraph noted that Cushman “replaced” plaintiff as general counsel in “a move that c[ame] eight months after a judge found the company in contempt of court for not complying with subpoenas in New York Attorney General Letitia James’ Donald Trump investigation.”

The second paragraph identified plaintiff’s successor; noted that Cushman’s press release announcing her appointment “made no reference to [plaintiff], who had been general counsel for nine years”; and added that “[h]is bio was removed from the company’s website.”

The third paragraph claimed that “Cushman did not respond to requests for comment, and [plaintiff] could not be located for comment.”

The rest of the article detailed Cushman’s role in the Trump Organization litigation; its response to the contempt holding, including a statement from a Cushman spokesman that “the firm ‘disagrees with any suggestion that the firm has not exercised diligence and good faith in complying with the court’s order’”; the contempt holding’s eventual reversal (accompanied by a hyperlink to a more detailed article on that development); and the professional background of Cushman’s new general counsel.

The decision also notes the reporter didn’t contact either Soloway or his former employer before going to publication. I don’t note this because it means anything in terms of defamation. I only note it because it’s something lots of spurious defamation lawsuits tend to claim are smoking guns of actual malice, when there’s absolutely nothing in defamation law precedent that has ever demanded journalists offer subjects of coverage an opportunity to comment before going to press. It’s a stupid thing to assert in court. It’s not much better than the court decided to add this meaningless sentence to its decision which finds firmly in favor of the Law.com reporter.

Four months after publication, ex-GC Brett Soloway sent a letter to Law.com demanding the article be retracted. Law.com refused to do so. However, it did make some alterations to the original article to soften some of the language but without undercutting any of its original inferences. It simply noted the real estate firm had refused to comment publicly on the reasons for Soloway’s exit and replacement.

That didn’t satisfy Soloway, who insisted — in court — that the original and altered article had “prevented him from working with recruiters and securing employment” because Guzman’s post “falsely claimed” he was “fired for his job performance…. in a highly publicized New York case involving Trump.”

But, of course, the article — even in its original form — never made that claim. It simply said Soloway had resigned, had been replaced, and that these events had happened a few months after the real estate firm had been hit with a contempt order for failing to comply with the New York AG’s subpoenas in the Trump case.

The court is left with the unenviable task of patiently explaining in small-ish words concepts a long-term lawyer should already know and understand.

Plaintiff takes great issue with the headline’s use of the phrase “in the wake of.” According to plaintiff, the phrase can be read only to mean “because of” and, as a result, the headline can only be understood as stating that plaintiff left Cushman “because of” his performance with respect to the Trump Organization litigation.

Read as a whole, however, the April 2023 article contextualizes plaintiff’s exit from Cushman within the firm’s latest legal and personnel developments. It accurately describes plaintiff’s professional background, Cushman’s relationship with the Trump Organization, the events that led to the contempt holding, the overturning of the contempt holding, plaintiff’s exit from Cushman eight months later, his nonappearance in Cushman’s press release and on Cushman’s website, and the professional background of Cushman’s new general counsel.

In fact, plaintiff is only mentioned in the first three paragraphs of the 13-paragraph article. Even if a reader were to understand the headline to imply that plaintiff was fired because of the contempt holding, that misconception would be cured once the reader read the actual article and learned that Cushman publicly defended the manner in which its attorneys responded to the subpoenas in the Trump Organization litigation; the initial contempt holding was later set aside by another court; and after it was set aside, plaintiff departed Cushman for unannounced reasons.

Just because you — the allegedly injured person — can construe innocent construction to be something far more nefarious subjectively doesn’t mean you have an actionable case. What you have is some hurt feelings, a vague sense of injustice, and the desire to make other people pay for imagined slights that probably have little to nothing to do with your inability to immediately find work that pays you as handsomely as a general counsel position at large real estate firm.

While the plaintiff/lawyer might be able to make factual reporting sound like actionable disparagement, the court isn’t willing to turn his inferential extrapolations into a plausible defamation lawsuit.

[P]laintiff’s interpretation requires a reader to make several linguistic and logical leaps: that “replaced” really meant “removed”; that “in the wake of” really meant “because of”; that “rebuke” really meant “contempt holding”; that because plaintiff’s departure was not explained in Cushman’s news release and his biography was unavailable on Cushman’s website, he must have left on bad terms; that because he left on bad terms, he must have been fired; that because the article discussed the contempt holding, the contempt holding must have instigated his firing; and that because he was fired, he must have performed poorly in his job. None of these implications are spelled out in the article and instead require plaintiff’s extensive annotations to follow.

The court does give this aggrieved but extremely incorrect lawyer a chance to amend his lawsuit. But not with an eye on re-establishing any defamation per se allegations. He can go for the longer defamation per quod shot if he feels it’s worth it — a legal standard that allows some outside information to be considered as part of the allegedly-defamatory whole — but it doesn’t say anything that even remotely suggests this will be less of a waste of time than his original lawsuit.

Brett Soloway is, of course, free to continue spending his own time and money trying to sue Guzman for his truthful reporting. And that’s unfortunate, because it means Guzman must spend his own time and money defending against himself against this bullshit lawsuit. Once again, it’s far past time to pass a federal anti-SLAPP law, which, at the very least, would double Soloway’s losses by making him pay the journalist for wasting his time.

Filed Under: 1st amendment, brett soloway, defamation, free speech, hugo guzman, lolsuit
Companies: alm, cushman and wakefield, law.com

America’s Mayor Earns Second Permanent Disbarment For Being An Election Conspiracy Grifter

from the enjoy-the-fleas,-bro dept

Well, I hope it was worth it, Rudy. You sold out completely, offering up every last bit of your integrity for the chance to push election conspiracy theories in court on behalf of a man who won’t even bother to look in your direction now that you’ve professionally disgraced yourself on his behalf.

No matter how this election goes, there’s sure to be more lawsuits filed by Trump. Hell, he filed several after the election that put him in office back in 2016. If he loses again, he’ll need another army of shameless lawyers to do his bidding in what will ultimately be failed attempts to reclaim the presidency.

Unfortunately, Rudy Giuliani — the self-proclaimed hero of 9/11 and self-titled “America’s Mayor” — you won’t be one of them. You may have done the ex-president’s dirty work but Trump only cares about wins, not about how much of his filth still clings to your body.

Rudy Giuliani, who already owes at least $148 million to Georgia election workers he defamed, and who can no longer hide behind belated bankruptcy filings to avoid this judgment, is now unable to perform his lawerly duties in the district where Donald Trump might need the most help if he (deservedly) loses the upcoming election.

What was once a temporary suspension of his DC law license is now permanent. And that has been affirmed by the DC Circuit Appeals Court in a one-page ruling [PDF] that says plenty without hardly saying anything at all.

The upshot of this ruling is that Giuliani is no longer welcome to practice law in the DC area, compounding his previous disbarment in his home state, New York. Here’s Josh Gerstein with more details for Politico.

Former New York City Mayor Rudy Giuliani had his law license permanently revoked in the nation’s capital, following similar action by a New York court earlier this year over Giuliani’s role in former President Donald Trump’s attempt to undermine the results of the 2020 presidential election.

In a one-page order Thursday, the D.C. Court of Appeals did not directly address a bar committee’s recommendation in May that Giuliani be disbarred for pressing a legal challenge to the election results in Pennsylvania without factual support for the claims.

Instead, a three-judge panel of the D.C. court found that Giuliani failed to respond to an order requiring him to explain why he shouldn’t face “reciprocal” disbarment after a New York appeals court’s decision to strip him of his law license in that state.

You’re now officially useless, Rudy. Trump can’t use you even if he wanted to. And, as far as I can tell, he considers you to be just a failure — another in a long line of lawyers discarded because they couldn’t do the impossible, or refused to keep trying to do the impossible because self-proclaimed Best Business Guy Ever Donald Trump decided to stop paying them.

At least you won’t have to embarrass yourself for free, Rudy. Trump is no longer your boss. You’re no longer his subservient bootlicker. Or, at least, you could be if you’d recognize this judgment for what it is: an opportunity to walk away from an abusive employer. Without a law license, you can’t be asked to irritate courts with frivolous filings on behalf of the world’s sorest loser. Now, you can just recede quietly into the background noise of normal society, albeit with ~$148 million less left to spend on hair products, podcast tech, or Uber Black rides.

As much as it gives me pleasure to report this, there’s a unending supply of unserious people with law licenses willing to burden courts with outlandish election conspiracy theories for the sole purpose of electing the man who would be despot and/or trying to catch the most fleeting bit of recognition for their service to the cause. Rudy Giuliani just happens to be the flameout with the highest profile.

The garbage man with the largest cult of personality will always have someone willing to rush the litigation machine gun nests on his behalf. Until things finally settle down, the very least the rest of us can do is gloat over the corpses he leaves behind.

Filed Under: dc appeals court, defamation, disbarred, donald trump, election conspiracy, loser, rudy giuliani

‘Patriot Reporter’ Latest Conspiracy Theorist To Discover It’s Not Libel If It’s The Truth

from the stupid-is-as-stupid-does dept

It’s hardly surprising that someone who makes a living trafficking in things other than facts would have trouble recognizing facts when they’re applied to him. That’s the case here with Philip Godlewski — a self-proclaimed “patriot reporter” and QAnon conspiracy theorist. (h/t Volokh Conspiracy)

According to claims made in court, Godlewski is “one of the highest Anons” (drug reference inferred even if not meant to be implied) and supposedly earns $5 million a month with his QAnon-related “broadcasts” on social media.

Godlewski is litigiously upset Chris Kelly of the Scranton Times accurately portrayed him as (1) a sex offender, (2) a person specializing in leading people down “rabbit holes,” and (3) a supporter of the January 6 insurrection attempt.

The “highest Anon”/”patriot broadcaster” made several claims in lawsuit, none of them either believable or actionable. He takes issue with the sex offender label, insists the part about the “rabbit holes” somehow damaged his sideline as a real estate agent, and insists he did not participate in the January 6 insurrection.

The court isn’t impressed at all with this lawsuit, something made immediately clear by its assessment of Godlewski in the ruling’s [PDF] opening paragraphs, which notes it’s a bit rich for someone crying libel about sex offender statements to be doing the sort of thing he does on a daily basis (to the tune of $5M/month [allegedly]):

The ironic gist of the opinion column at issue was that the QAnon broadcaster, who affirmatively states in his published videos on social media that certain high-ranking elected and public officials are satanic, cannibalistic pedophiles sexually abusing children and drinking their blood to ingest the life-extending chemical adrenochrome, previously pled guilty in this county to corruption of a minor resulting from a sexual relationship with a 15-year-old girl while he was a 27-year-old baseball coach at her school….

And that’s how cases like these go. People who feel free to libel individuals, along with entire groups of people, are the first to start screaming “defamation” the moment those tactics are applied to them or the people they support.

But it won’t work here. For one thing, Godlewski’s assertion that the Scranton Times’ claim he had a “sexual relationship with a 15-year-old” is false is something immediately undercut not only by public records, but by his own guilty plea to a misdemeanor charge. (The latter of which was noted in the article, which pointed out he never “had sex” with the girl and had “pled to a misdemeanor.”)

Here’s the court again:

As noted above, the only text messages quoted in the Affidavit of Probable Cause in Godlewski I are those in which Godlewski acknowledged and described oral sex with Ms. DuBorgel, the presence of her hair in his “crotch area,” and his sexual activity with her in 2010 when she was 15 years of age. Those text messages served as the factual predicate for the single count of Corruption of Minors, 18 Pa. C.S. § 6301(a)(1), contained in the Criminal Information charging that Godlewski “did repeatedly have inappropriate text [m]essages and contact with a minor” in 2010. Indeed, Godlewski’s counsel conceded at the time of oral argument that “[t]he corruption of minors count in the complaint was consistent with the information in the affidavit.”

I_n his guilty plea colloquy in Godlewski I, Godlewski admitted that his executed colloquy was a “signed statement,” that he “kn[e]w exactly what you are charged with and what you are pleading to,” that he understood “that by pleading guilty you are admitting that you did the things you are charged with,” that he understood “the elements of the crime charged that you are pleading to,” and that he “admit[ted] that you did the above stated act” constituting corruption of a minor._

That means the stuff about his sexual activity with a minor wasn’t libel. It was just the truth — something QAnon acolytes often tend to have trouble seeing, much less acknowledging.

The same goes for the “rabbit holes.” At issue here was an illustration accompanying the Scranton Times article, which depicted a real estate sign reading “RABBIT HOLE FOR SALE!” beneath the words “UN-REALTOR.” Godlewski claimed this besmirched his real estate sideline by presenting him as an unscrupulous real estate agent.

The court, again, disagrees. It points out “rabbit hole” has been used in this context for years by any number of people to suggest being sucked into conspiracy theories. The reference added (UN-REALTOR) was not meant to question his ability to sell real estate, but rather to use Godlewski’s career as an additional punchline to punctuate his obsession with a long list of conspiracy theories he espoused on his broadcast, ranging from denying the United 93 crash ever happened to claiming California Governor Newsom had “killed himself” and had been replaced by a “clone.”

Finally, the court indirectly tells Godlewski he should probably actually read the article he’s suing over. The paper never said he participated in the January 6 raid on the Capitol. In fact, it unambiguously presents Godlewski’s own statements, in which he denies having attended while also noting that he falsely claimed hours after the raid that Vice President Mike Pence had been arrested.

It’s a complete shutout. Godlewski loses on every count. If he wasn’t a QAnon enthusiast, he might have recognized facts for what they are. But he’s so deep in his own bullshit, he can’t recognize the truth when it’s being reflected back at him by a local journalist. Unfortunately, it doesn’t appear Godlewski will need to pay the paper’s legal fees for wasting its time with a lawsuit that was a loser the moment this “patriot broadcaster” brain-farted it into existence. And that’s the problem. Without strong anti-SLAPP laws, people are forced to engage with stupid litigants who are given every opportunity to drag innocent defendants down to their level and in hopes of beating them with their experience.

Filed Under: 1st amendment, conspiracy theorists, defamation, free speech, libel, philip godlewski, qanon

Drag Performers Collect $100k Settlement From NH State Rep Who Smeared Them As Sex Offenders

from the mfer-just-climbed-up-his-own-petard dept

Confirmation bias. It’s expensive. Just ask David Love, who has written out a $100,000 check to two drag performers for defamatory comments he made — more than once! — while supposedly serving his constituents in his position as a New Hampshire state rep.

New Hampshire residents Robert Champion, who performs under the stage name Monique Toosoon, and Michael McMahon, who performs under the stage name Clara Divine, filed the lawsuit in April 2022 after Rep. David Love (R-Derry) made public remarks about the performers that he later admitted were inaccurate. Champion and McMahon agreed to settle the lawsuit on Thursday, as the Manchester Ink Link first reported.

While testifying at a New Hampshire House committee meeting, Rep. Love falsely claimed that Champion was a convicted sex offender, according to a Boston Globe report. He also told the legislature that McMahon had been “rubbing butts” with kids during a family-friendly storytime event in 2021.

This was stupid. How it got to this point is even stupider. We’ll move back down the timeline a step at a time. What prompted Rep. Love to deliver these statements while acting as a state rep? Well, it was a discussion over a bill he sponsored — one that would require background checks for public library employees. Why was this suddenly a necessity? Because Rep. Love firmly believed libraries were becoming honeypots for child molesters or something (it’s unclear from his words, so we’ll have to consider the context).

He expressed concerns about library events featuring drag queens.

That’s one way of putting it. That’s the way Boston.com chose to put it. Another way to put it was that Rep. Love was expressing an irrational concern — one he supported with “information” passed on to him by other people. And he chose to pass it on as actual facts because he’s too impaired by his own bigotry to perform due diligence before making a $100,000 ass of himself in public.

We know this because the drag performers not only asked for $100,000 but a full retraction and apology from state rep David Love. And they got it. It’s this apology that shows Love was given some bullshit from someone else that he definitely wanted to believe was true because it confirmed his own biases. So, that’s what he chose to do: believe it and pass it on to others like the contagion it was.

After being provided with inaccurate information, information that I failed to verify, I publicly accused Robert Champion aka Monique Toosoon of being a registered sex offender and Michael McMahon aka Clara Divine of “rubbing butts” with children. I made those statements before the New Hampshire legislature. Those allegations were then repeated to Manchester Ink Link and before the Derry Town Council. I have since learned that those assertions were completely false. I wish to publicly retract those statements and apologize to Robert and Michael.

The question is: will he learn? More importantly, will others with the same biases learn anything from this themselves? Or will it just be another one of those things immediately buried under the next bit of misinformation people like Rep. Love choose to fill their brains with. Rep. Love has a $100,000 reminder which might make this stick. As for everyone else, it probably won’t even make them think twice.

Filed Under: david love, defamation, drag shows, michael mcmahon, new hampshire, robert champion

Senate Hopeful Files Idiotic Lawsuit Against A Bunch Of TV Stations Over An Ad He Thinks Is Defamatory

from the way-to-lose,-loser dept

Whew. Not a great look there, Mr. Senatorial Candidate.

Wisconsin Republican Senate candidate Eric Hovde has launched a lawsuit against several Wisconsin television stations and a Democratic Party aligned PAC for running ads that he claims defamed him.

The ad states that Hovde, the CEO and chairman of the board for Sunwest Bank, and his family “rigged the system to rake in $30 million in government subsidies and loans, and now he’s sheltering his wealth in shady tax havens around the world.” It also claims at one point that Hovde is a “California banker.”

The ad was cut by WinSenate PAC. The outfit is one of the defendants named in the suit, along with Gray Media Group, Nexstar Media, Inc., The Evening Telegram Company, Sinclair Communications, LLC, Fox Television Stations, LLC, ION Media Networks, Inc. and Scripps Media, Inc., according to an Aug. 9 filing.

None of this is advisable. And yet, it appears the Holtzman Vogel law firm advised Hovde to run with this. The law firm sent letters to the defendants — a long list that includes seven defendants who cannot possibly be found liable for running the ad produced by WinSenate PAC. The other defendant would be the producer of the ad, which has almost a zero chance of being successfully sued for the claims it made in the ad — not when the defendant is a public figure.

The letter sent to the stations makes a bunch of claims about the ad, which is fine. But the only correct target for this lawsuit is the creator of the ad, even though the Holtzman Vogel law firm goes out of its way with a bunch of footnotes in hopes of making the media company defendants feel like they could be held liable for running the PAC’s ad.

Your station is under no obligation to air advertisements sponsored by non-candidate organizations (such as “WinSenate”), and you should reject such advertising on the basis of its false, misleading, and deceptive content. In fact, your station is legally responsible for the content of non-candidate advertising. Your station has an obligation both to its viewers and, under the law, “to protect the public from false, misleading or deceptive advertising.” This duty necessitates “the additional obligation to take reasonable steps” to affirmatively determine the veracity of the statements contained in advertisements and the authenticity of the sources cited. You must be able to satisfy yourself “as to the reliability and reputation of every prospective advertiser.” Failing to take these steps, and allowing false and misleading advertising to air, may be “probative of an underlying abdication of licensee responsibility.”

Wow. Sounds so very serious. But there’s really nothing actionable happening here, no matter how many footnotes were attached to this pile of words.

The first sentence is true: stations are not obligated to carry ads from political action groups. They are — if they’re subject to FCC regulations (over the air broadcasters) — obliged to carry ads from political candidates. But the thing about those ads is they’re political speech, which isn’t subject to the same “truth in advertising” standards private companies must adhere to.

As for the rest of the citations, they’re mostly meaningless. (And they only mean something if every TV station listed is FCC-licensed.) One citation points to this 1961 public notice posted by the FTC and FCC on broadcaster duty when it comes to truthful ads. And all it really says is that broadcasters need to make a good faith effort to prevent blatantly false (or blatantly offensive) ads from being aired on their stations. It does not require them to vet every claim made in the ad, nor does it expect them to recognize every false claim made by advertisers. Instead, it makes broadcasters aware the FTC and FCC will publish “alerts” when any entity raises these agencies’ suspicions and cautions that running ads from companies listed on “alerts” would raise “serious question[s]…as to the adequacy of the measures instituted and carried out by the licensee…” In other words, stations need to make an effort to stop false ads from airing, provide documentation of their efforts, and definitely avoid running anything from entities flagged by the feds.

The letter also cites this 1978 court opinion in support of its claims of station liability for the ads Eric Hovde is suing over. In this case, the FCC investigated Cosmopolitan Broadcasting, an FCC-licensed broadcaster that had basically turned over all of its content to third parties, allowing them to purchase air time to run their own content and ads. The FCC said that Cosmopolitan was still responsible for vetting this third party content, which it had clearly failed to do.

The upshot of the decision was Cosmopolitan being ordered to (re-reads decision) pencil-whip a new checklist written for it by the DC Circuit Appeals Court judge — one that stated who reviewed what third-party content and when. It’s hardly the sort of thing that should strike fear in the stations being sued by Hovde. Nothing in any of the citations suggests the stations can be held directly liable for WinState ad — at least not by Eric Hovde. The FCC and/or FTC could take action, but nothing indicates either of these entities ever suggested failing to vet ads is an actionable claim in civil court.

WinState PAC is the only legitimate defendant in this lawsuit, but that doesn’t mean Eric Hovde is any less likely to lose. The claims made in the ad were based on content published by ProPublica in one of its newsletters.

Between 2003 and 2013, Hovde’s asset management firm Hovde Capital reported non-controlling investments worth up to $74 million in more than a dozen Bermuda-based insurance companies, according to a PI analysis.

Bermuda doesn’t have a corporate income tax and has even offered “tax assurance certificates” to ensure holders temporary insulation in the event that ever changes. Every Bermuda insurer that Hovde Capital invested in held those certificates, according to a review of SEC documents.

Now, that’s not exactly the same thing as “sheltering his wealth in shady tax havens around the world.” But it could be inferred from ProPublica article that Hovde doesn’t mind helping other people shelter their wealth in shady tax havens. The gist of the ProPublica reporting is that these investments seem a bit hypocritical when Hovde stated in ads during his first Senate run in 2012 that it was “wrong” that major corporations dodged corporate taxes and, in 2021, expressed support for a minimum corporate tax rate bill, claiming he’s always “hated” the fact that “companies like Goldman Sachs or Apple can put all their technology in offshore places and pay no taxes.”

Hovde can go ahead and pursue this lawsuit, but it’s a non-starter. The assertions made by the PAC might have been a bit off-base, but they’re far from the deliberate indifference needed to reach the actual malice standard Hovde will have to prove to secure a ruling in his favor. This is spray-and-pray litigation Hovde apparently hopes will silence one of his critics, either by forcing the PAC to pull the ad or intimidating TV stations into refusing to do business with WinState.

Hovde should know better. He’s a political candidate who has plenty of opportunities to counter the narrative pushed by his opposition. He’s got all the free speech he needs to accomplish this. It’s a shame he feels the best way to handle this is to deter the speech of others.

Filed Under: 1st amendment, advertising, defamation, eric hovde, free speech
Companies: evening telegram company, fox, gray media group, ion media, nexstar, scripps media, sinclair broadcasating, winsenate pac

Georgia’s Secretary Of State Slapped With Frivolous Lawsuits: The Case For A Federal Anti-SLAPP Law

from the protect-free-speech-for-real dept

Last week, the NY Times had an article about how Georgia’s Republican Secretary of State, Brad Raffensperger, is being targeted in a SLAPP suit by a “podcaster” who claims Raffensperger defamed her in his book about the 2020 election. (For reasons unknown, the NY Times links to none of the legal filings in the case, but we’ll rectify all that below).

The case is a perfect example of why we desperately need a federal anti-SLAPP law that protects everyone from vexatious litigation designed to suppress speech.

Raffensperger has been a target for the MAGA crowd ever since he turned down Donald Trump’s January 2, 2021 request to “find 11,780 votes” for him to win in Georgia by noting that none of the conspiracy theory ideas Trump was pushing about the election in Georgia had proven true. Given that Raffensperger ally Georgia Governor Brian Kemp has something of a history with pro-GOP shenanigans in how they conduct elections, the fact that even he wouldn’t humor this kind of nonsense from Trump says something.

Later that year, Raffensperger published “Integrity Counts,” a book that attempts to explain his side of what happened during the 2020 election.

Eleven months later, Jacki Pick sued Raffensperger for defamation in Judge Reed O’Connor’s court in Texas. She claimed that the book, which does not mention her, defames her. From the complaint:

In the Book, Raffensperger refers to the video presented to the Committee as a “SLICED-AND-DICED VIDEO.” Raffensperger states that the State Farm Arena video—presented to the Committee by Ms. Pick alone—“had been deceptively sliced and edited so that it appeared to show the exact opposite of reality.” Book, p. 138…. That is, he called Ms. Pick a liar and accused her of actions constituting a crime under Georgia law

Raffensperger further claimed that Ms. Pick’s presentation “showed a slice of video that had removed the clear evidence that Fulton County election workers had protected the ballots and the process as required by law.” Raffensperger later again referred to the video as a “chopped-up video.” Book, p. 139 …

In later public statements, Raffensperger described the video shown by Ms. Pick as “doctored” and “false.”

In his motion to dismiss, Raffensperger rightly focused on the fact that Texas had no jurisdiction over him for such a case.

In sum, Defendant had no contacts with Texas. Even his distributor had no contacts with Texas in connection with his book. All Plaintiff has been able to establish through jurisdictional discovery is that independent third-party retailers had contacts with Texas when selling Defendant’s book, and those contacts cannot be imputed to Defendant.

And thus, Judge O’Connor tossed the case over this issue last year:

First, Defendant did not reference Texas in the Book, nor did he reference any Texas-based activities of Plaintiff. See Revell, 317 F.3d at 473. Instead, Defendant’s statements concerned issues exclusively related to Georgia and Plaintiff’s testimony at the Hearing in the Georgia legislature. Second, when making the allegedly defamatory comments, Defendant does not appear to rely on any Texas sources. Third, Defendant’s comments in the Book and in nationally public statements do not concern Texas. For these reasons, the Court concludes that it does not possess specific jurisdiction over Defendant.

But, that didn’t stop Pick who refiled the case in Georgia earlier this year.

In the new motion to dismiss he filed last week, Raffensperger points out that Pick is never even mentioned in the book.

Here, nowhere in the book is there any specific mention of plaintiff. In discussing the December 3 legislative hearing—in a section pointedly titled, GIULIANI’S SLICED-AND-DICED VIDEO—the book refers only to the presentation “of witnesses and a video” by “Rudy Giuliani and other lawyers for President Trump,” a category that plaintiff’s original complaint took pains to make clear did not include plaintiff….

GIULIANI’S SLICED-AND-DICED VIDEO does not single out any editor or presenter of the videotape other than, of course, Giuliani. And it is Giuliani and Giuliani alone whom the book accuses of using the selective portions of the videotape shown during the hearing to mislead the Georgia legislature: “Giuliani intentionally misled our senators.” Ex. 1 at 139. In its numerous discussions of Giuliani’s “suitcases full of fraudulent ballots” claim, the book never identifies any individual on the Trump team, paid or volunteer, lawyer or otherwise, other than Giuliani. Whenever Integrity Counts mentions the State Farm security videotape, it is never ambiguous about the individual upon whom it places responsibility and opprobrium for the misleading excerpts and their use: Giuliani.

And then he argues that nothing he said in the book was false:

Plaintiff’s first contention seems to be that Integrity Counts falsely implied that the State Farm videotape presented to the General Assembly had been physically altered prior to its presentation or, to have been presented in a nondeceptive manner, was required to have been played in full, all 20 plus hours of it. Am. Compl. ¶¶ 3-5, 86. This contention is entirely without merit. The book makes neither implication. Rather, it accurately states that by using some segments of the State Farm video to arouse suspicions while ignoring other segments that made clear those suspicions were baseless, “Rudy Giuliani and other lawyers for President Trump presented witnesses and a video that had been deceptively sliced and edited so that it appeared to show the exact opposite of reality.” Ex. 1 at 138. The context makes clear that the descriptors “sliced and diced,” “chopped up,” and the like were used to emphasize the point that key portions of the video disproving Giuliani’s assertion of fraudulent ballots had not been shown to the legislature or tweeted to the public. Those descriptors were figurative, not literal, and under wellestablished law, not actionable. Horsley, 292 F.3d at 701-02 & n.2; Bryant, 311 Ga. App. at 243.

Plaintiff’s second contention, that two “suitcases” references in the book falsely defamed her, is also meritless. Whether or not, as plaintiff claims, it was common for Fulton County election officials and others to colloquially refer to ballot containers as “suitcases,” it cannot be denied that Giuliani and others, including the president himself, were using the term to falsely assert that the boxes were not official and the ballots within them fraudulent. See, e.g., Ex. 1 at 168-69 (Trump: “[t]hey weren’t in an official voter box; they were in what looked to be suitcases or trunks. Suitcases.”). The statements plaintiff challenges—an investigative reporter’s ‘not suitcases’ tweet and Gabriel Sterling’s ‘secret suitcase’ discussion—were countering these assertions and, as the critical omitted segment of the State Farm video makes clear, were plainly correct and accurate in doing so. Plaintiff was not defamed by the statements nor were they in any way false.

Finally, with respect to plaintiff’s overall contention, that Integrity Counts somehow singled her out, which it did not, and specifically accused her, which it did not, of having presented misleading evidence to the Georgia legislature, the fact is that she did present misleading evidence to the Georgia legislature. Her presentation distorted affidavits and played a videotape to raise suspicions about the “chain of custody” of “suitcases of ballots” that goes to “fraud or misrepresentation” that other portions of the videotape that she did not play showed to be baseless. See pages 4-7, supra. Plaintiff did not go so far as Giuliani in claiming that her presentation conclusively established the existence of criminal fraud, but it was her presentation and its critical omission that served to justify and propagate the claim.

As the NY Times article points out, Raffensperger has spent around $500,000 out of his own pocket defending the lawsuit:

Mr. Raffensperger, who self-published his book, is paying legal expenses out of his own pocket. He has recently launched a legal-defense fund to help defray the costs.

[….]

“I have incurred over $500,000 in legal fees to fight these frivolous claims,” Mr. Raffensperger said in a statement. “Not every election official is going to be able to withstand that type of pressure,” he said. “This should send alarms to every election official across the country.”

The NY Times piece also notes that Pick has offered to settle the case, but only if Raffensperger makes a statement that he doesn’t believe is true:

Ms. Pick’s lawyers let it be known that if Mr. Raffensperger wanted to settle the case, he would first have to say publicly that her presentation of the video was not deceptive. In other words, Mr. Raffensperger says, he would effectively have to tell his own new lie.

This all appears to be a classic SLAPP (Strategic Lawsuit Against Public Participation). Raffensperger spoke out about what happened with the 2020 election in Georgia, which is obviously a topic of immense public interest. Pick’s lawsuits appear very much designed to suppress that speech and pressure Raffensperger to say something he does not believe is true.

Pick also has vast resources because she is married to a mega-millionaire GOP donor Doug Deason. The wealthy can file these lawsuits at no significant expense, but defending them is way more expensive in money, time, and overall stress. Note that Raffensperger has already spent half a million dollars, just covering an easily dismissed over jurisdiction case in Texas, and just getting to the motion to dismiss stage in the case in Georgia (basically the very first step). The cost can only go up, and potentially massively, from here.

This is exactly what anti-SLAPP laws were supposed to protect against. Wealthy litigants can file vexatious and resource-intensive litigation against people for their speech in an effort to get them to suppress their speech. Notably, both Texas and Georgia have pretty strong anti-SLAPP laws. Those laws allow defendants to quickly stop costly discovery and make a motion to get the case kicked out quickly and (importantly) make the SLAPPing plaintiff pay the legal fees of the defendant.

Tragically, both the 5th Circuit (covering Texas) and the 11th Circuit (covering Georgia) have decided that anti-SLAPP laws cannot be used in federal court (where both of Pick’s lawsuits have been filed). That means those laws are useless here.

This is why we absolutely need a federal anti-SLAPP law that can be applied in these kinds of cases. Such anti-SLAPP laws are a necessary component to make sure that the free speech rights we all supposedly have under the First Amendment are actually achievable in practice. They are desperately needed to protect freedom of expression around the country, but certainly in cases like this, involving election officials.

In the NY Times article, Raffensperger notes that these kinds of attacks are only likely to become more common against election officials, but they’re already all too common against all sorts of people. This is why a federal anti-SLAPP law (and good state anti-SLAPP laws in every state) is such a critical need. And yet… none of the recent attempts to pass one has gone anywhere.

Without such laws, lawsuits like this can drain both the time and the wallets of anyone, even public officials like Raffensperger.

Filed Under: 2020 election, anti-slapp, brad raffensperger, defamation, donald trump, federal anti-slapp law, georgia, jacki pick, slapp, slapp suits, texas

Judges Green-Light Trump’s Speech-Chilling SLAPP Suits

from the slappity-slapp-slapp dept

Donald Trump is no stranger to filing vexatious, speech-chilling SLAPP suits. For a guy whose supporters pretend he is a big “free speech” supporter, it’s kind of astounding how frequently Trump sues people and companies over speech he dislikes.

Unfortunately, judges have allowed the cases to move forward in two separate recent SLAPP suits. It doesn’t mean that Trump will win. In the end, he’s almost assured of losing both cases. But, the lack of a robust, strong set of anti-SLAPP laws means that Trump gets to run up the legal bills of defendants in pursuing these vexatious lawsuits.

To understand the issues in both cases (and why both should have been dismissed), it’s helpful to know about two separate Supreme Court cases from the early 1990s: Milkovich v. Lorain Journal and Masson v. New Yorker Magazine. Both of these cases remain key cases in First Amendment/defamation law today, and it feels like the judges in these cases misunderstood (or ignored) them.

In Milkovich, which (surprisingly and oddly) rejected the premise that opinion is automatically protected by the First Amendment, the Supreme Court may have (accidentally) established more useful standards for what can and (more importantly) what cannot be subject to defamation claims. It setup the idea that for something to be provably false, it had to be capable of being proven true or false. It also established that “rhetorical hyperbole” and “loose, figurative language” did not qualify as defamatory.

And thus, since then, it’s common for defamation defendants to point to “rhetorical hyperbole,” “loose figurative language,” and how the statements at issue are incapable of being proven true or false. This is also where the importance of disclosing the facts that are the basis of an opinion becomes important. Because courts have said that if you give an opinion that implies some undisclosed facts, that can be defamatory. But if the basis of your opinion is disclosed, then it’s not defamatory.

The Court said in Masson that if someone gets something technically false, but the overall gist of it is “substantially” true, then it is also not defamation. The court noted that having to face defamation claims of “minor inaccuracies” would create real problems, and open up a flood of vexatious lawsuits.

Now, on to the Trump cases. In the first case, in Florida state court, Trump had sued the Pulitzer Prize board for awarding Pulitzer Prizes to the Washington Post and the NY Times in 2018 for their reporting on attempted Russian interference in the 2016 Presidential election. Trump and friends have long insisted that this was all a “hoax.”

Of course, the reality is a lot more complicated. Today, lots of people recognize that there is tremendous evidence that Russia attempted to influence the election in multiple ways. There is also evidence that those in Trump’s orbit were happy to accept that help.

It is true that there was the Steele dossier that made the rounds and was basically full of unproven and highly questionable rumors, many of which seem unlikely to be true. Some Trump haters were quick to jump on the confirmation bias bandwagon and assume every awful claim must have been true, or that some grand conspiracy would be revealed. Finally, Trumpworld has focused on the supposed lack of “collusion” (a non-legal term) because the Robert Mueller report (which did find the other facts above) did not say there was “collusion” between the Russians and Trump.

Trump and his orbit have portrayed a few Democrats being a bit too credulous about the details (and the false claim that everyone said there was “collusion”) as proof that everything was a “hoax.” But that’s not what the evidence shows at all, and none of the underlying reporting that won the Pulitzer Prize appears to be based on those exaggerated claims.

Either way, Trump threatened to sue the Pulitzers multiple times for not taking away the awards. Finally, he did sue in a Florida state court after the Pulitzer Board posted a statement saying that they had gone through a “formal process” to review the winners of the award from 2018:

The Pulitzer Prize Board has an established, formal process by which complaints against winning entries are carefully reviewed. In the last three years, the Pulitzer Board has received inquiries, including from former President Donald Trump, about submissions from The New York Times and The Washington Post on Russian interference in the U.S. election and its connections to the Trump campaign–submissions that jointly won the 2018 National Reporting prize.

These inquiries prompted the Pulitzer Board to commission two independent reviews of the work submitted by those organizations to our National Reporting competition. Both reviews were conducted by individuals with no connection to the institutions whose work was under examination, nor any connection to each other. The separate reviews converged in their conclusions: that no passages or headlines, contentions or assertions in any of the winning submissions were discredited by facts that emerged subsequent to the conferral of the prizes.

The 2018 Pulitzer Prizes in National Reporting stand.

Trump sued not over the failure to rescind the award, but over that statement, which he claimed was defamatory. You can read that statement multiple times and struggle with what could possibly be defamatory in it, but it goes back to the issue discussed above: the Pulitzer Board talks about the “two independent reviews” which implies some undisclosed facts that could be defamatory. Probably aren’t. But, the court says that at this stage of the game, that’s enough to allow the case to move forward.

The court lists out seven (?!?) facts that went undisclosed in that statement, such as what the “established formal process” was, the identity of the “independent reviewers,” the vagueness of what the reviews actually found or what they relied on, and more.

Of course, it’s difficult to see how any of this could possibly be defamatory. The board claims they did an investigation and found nothing wrong. That’s the factual statement. It seems like an easy case for the court to dismiss, but the judge says that because of all those undisclosed facts, the case should move forward.

But, it also means that the case could still be dismissed later in the process. But this is why SLAPP suits succeed. Courts will often allow vexatious lawsuits like this to keep moving forward and get super expensive.

The other case, in a Florida federal court, was filed earlier this year, against ABC and George Stephanopoulos over an interview he conducted with Rep. Nancy Mace. Stephanopoulos presses her on her support for Donald Trump, claiming that the juries in the E. Jean Carroll cases had “found him liable for rape.”

If you remember the details of the case, you’ll recall that the jury had found him guilty of sexual assault, but had not gone so far as to say he had been found guilty of rape under NY’s law. When I first saw the case, I actually thought this one might be stronger than usual. Except, in looking at the details, you realize that it should be easily dismissible as “substantially true.” That’s because even the judge in the E. Jean Carroll case had noted that the failure of the jury to find him guilty of “rape” in the legal sense rested on the apparently bizarrely narrow definition of rape in New York.

As Judge Lewis Kaplan wrote in response to Trump claiming that Carroll defamed him in continuing to say that Trump “raped” her after the jury verdict, it was substantially true that in a colloquial sense, he did:

The only point on which Ms. Carroll did not prevail was whether she had proved that Mr. Trump had “raped” her within the narrow, technical meaning of a particular section of the New York Penal Law – a section that provides that the label “rape” as used in criminal prosecutions in New York applies only to vaginal penetration by a penis. Forcible, unconsented-to penetration of the vagina or of other bodily orifices by fingers, other body parts, or other articles or materials is not called “rape” under the New York Penal Law. It instead is labeled “sexual abuse.”

As is shown in the following notes, the definition of rape in the New York Penal Law is far narrower than the meaning of “rape” in common modern parlance, its definition in some dictionaries,2 in some federal and state criminal statutes,3 and elsewhere.4 The finding that Ms. Carroll failed to prove that she was “raped” within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump “raped” her as many people commonly understand the word “rape.” Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that.

Given those details, it seems like a “substantially true” argument should have gotten the case dismissed.

But, the judge has refused to dismiss the case at this stage. Judge Cecilia Altonaga is well aware of what Judge Kaplan said. Indeed, a big part of the ruling is about whether or not this case is barred due to Judge Kaplan’s ruling in NY on basically the similar facts. But here, Judge Altonaga says it’s not actually the same facts (which probably makes some amount of sense).

From there, she finds the “substantial truth” argument lacking, specifically because Stephanopoulos was directly referring to the jury’s findings, rather than using the term colloquially.

Here, of course, New York has opted to separate out a crime of rape; and Stephanopoulos’s statements dealt not with the public’s usage of that term, but the jury’s consideration of it during a formal legal proceeding. Thus, while Defendants’ cited cases are compelling, they are not directly responsive to the issue of whether it is substantially true to say a jury (or juries) found Plaintiff liable for rape by a jury despite the jury’s verdict expressly finding he was not liable for rape under New York Penal Law.

And thus, she says the case should move forward and have a factfinder (i.e., a jury) determine whether or not the statements are defamatory.

While Judge Altonaga admits that Judge Kaplan’s statement bolsters the argument from Stephanopoulos, it would only matter here if he had presented what the jury actually found and then noted in his interview with Mace that Judge Kaplan had said that this was the equivalent of what most people think of as rape.

And thus the case moves forward.

I think both decisions are wrong, but they’re not so blatantly, obviously wrong as some other cases. In both cases, it’s still quite likely that Trump loses the suits (if they reach conclusion, which they very well might not). But, of course, these kinds of rulings only encourage more vexatious SLAPP suits. Getting past a motion to dismiss is often the goal of SLAPP suits, because the cost to the defendants starts to go up massively at that stage. And if the goal is just to burden the speaker with massive legal fees, getting this far succeeds.

These two cases, yet again, show why we need strong anti-SLAPP laws both at the state and federal levels. The usual point of vexatious defamation suits is to run up the costs for defendants and to create chilling effects to stop others from speaking. Getting past the motion to dismiss stage almost certainly succeeds in those goals.

Filed Under: anti-slapp, defamation, disclosed facts, donald trump, florida, george stephanopoulos, pulitzer prizes, russia, slapp, slapp suits, substantial truth
Companies: abc, pulitzer committee