robert barnes – Techdirt (original) (raw)

Kentucky Court Tells Anonymous Covington Students They Can’t Sue For Defamation If They’re Anonymous

from the that's-not-how-any-of-this-works dept

You all remember the media shit-storm around kids from Covington Catholic High School and a run-in with folks in Washington DC that became a sort of Rorshach test demonstrating your political viewpoints based on how you viewed the encounter. The main character from Covington Catholic was Nick Sandmann, who sued a bunch of media orgs over their characterization of the events. While a few publications settled — for what it seems was clearly a tiny “nuisance fee” — Sandmann lost all of his other cases against the media, because there was no defamation at all.

In the midst of all this, we had noted that lawyer Robert Barnes, a lawyer who has only appeared in our pages for his habit of filing laughably bad lawsuits that seem more about publicity than anything else, had announced publicly that he would sue the media pro bono on behalf of Covington Catholic students. And then something kinda weird happened. He did file a defamation lawsuit against various media personalities, but all of the plaintiffs were listed as “John Does.” Among those included in the lawsuit was Reza Aslan, for his comment that Nick Sandmann had “a punchable face.”

This resulted in the somewhat crazy situation in which lots of people on Twitter assumed that when Aslan and others were sued over this, that the plaintiff was Sandmann himself. Sandmann was… not happy about it:

And, I mean, as Sandmann correctly points out, even if Barnes claimed he was suing on behalf of other Covington Catholic kids, the only kid Aslan actually spoke about was Sandmann (and saying someone has a punchable face, while immature, is not defamation).

But, also, can you sue for defamation while remaining anonymous? After all, isn’t the point of a defamation lawsuit that the commentary is harmful to your reputation? If you’re anonymous, how do you show that there was any actual harm? Or even that the commentary was about you?

Kentucky courts dismissed the lawsuit, and Barnes (being Barnes) appealed to the Kentucky Appeals Court, which has easily dismissed the nonsense lawsuit yet again. Almost all the defendants had the case dismissed for lack of personal jurisdiction, seeing as none of them were in Kentucky. However, one defendant, Adam Edelen, a Kentucky politician, couldn’t argue lack of personal jurisdiction, because he’s actually in Kentucky.

Of course, it still doesn’t matter and the case against him got tossed as well, because you can’t really sue for defamation and remain anonymous. That’s not how any of this works.

We will only review the claims against Edelen as he is the only defendant that was not dismissed for lack of personal jurisdiction. First, however, we must address the elephant in the room: is it even possible to make an anonymous claim for defamation? It defies logic to think anyone could present proof of defamation anonymously. The notion is so preposterous that Does have not pointed to any case law that allows them to proceed in this manner, nor have we found any.

The court at least tries to reason out if it could even be possible to sue for defamation as a John Doe and concludes that, no, that’s not possible. Since defamation needs to be about the plaintiff, the anonymity creates a real problem:

The first requirement for a defamation claim is that the challenged statements be “about” or “concerning” the plaintiff(s). Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 793 (Ky. 2004), overruled on other grounds by Toler, 458 S.W.3d 276. “[T]he plaintiff need not be specifically identified in the defamatory matter itself so long as it was so reasonably understood by plaintiff[’]s ‘friends and acquaintances . . . familiar with the incident.’” Stringer, 151 S.W.3d at 794 (quoting E. W. Scripps Co. v. Cholmondelay, 569 S.W.2d 700, 702 (Ky. App. 1978)).

Even so, “where defamatory statements are made against an aggregate body of persons, an individual member not specially imputed or designated cannot maintain an action.” See, e.g., Louisville Times v. Stivers, 252 Ky. 843, 847, 68 S.W.2d 411, 412 (1934) (citation omitted). For an individual plaintiff to bring a defamation action based on such comments, “the statement must be applicable to every member of the class, and if the words used contain no reflection upon any particular individual, no averment can make them defamatory.” Kentucky Fried Chicken of Bowling Green, Inc. v. Sanders, 563 S.W.2d 8, 9 (Ky. 1978). In either event, it is impossible for Does to satisfy their burden of proof on this element without revealing their identities.

Of course, even if they chose to name themselves, there’s still no actual defamation.

The tweet Edelen made that got him sued read:

“This is outrageous and abhorrent behavior. I hope part of any punishment is to ensure they read a history book on how America’s indigenous people have been treated. The parents and school that produced these boys need to do some serious soul-searching.”

It also linked to a story quoting Nathan Phillips (the guy with whom Sandmann ended up in a staring contest) talking about his side of the story.

The court notes that there’s nothing in that tweet that appears defamatory.

Kentucky has adopted the view of Restatement (Second) of Torts § 566, which states: “A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.” See Lassiter v. Lassiter, 456 F. Supp. 2d 876, 881 (E.D. Ky. 2006), aff’d, 280 F. App’x 503 (6th Cir. 2008). “Pure opinion . . . occurs where the commentator states the facts on which the opinion is based[.]” Id. Herein, Edelen disclosed the facts on which his opinion was based by including a link to the article in his tweet. Thus, the trial court did not err in finding that Edelen’s tweet consisted of pure opinion and was not defamatory as a matter of law.

The court also notes in a footnote that the complaint falsely stated that the tweet and the article Edelen linked to made false statements that it did not, in fact, make.

Contrary to the allegations in Does’ amended complaint, neither Edelen’s tweet nor the article it linked contained “false statements” that “the kids interrupted an indigenous march, stopped and blocked a Native American elder and Vietnam War veteran from continuous participation in that event, surrounded him in a threatening manner, and taunted him, as a [N]ative American elder, with chants of ‘build the wall’ to mock an elderly [N]ative American in the middle of an indigenous march.”

And thus, one hopes this nonsense saga is over. It’s not even clear who Barnes’ clients are, and Sandmann has already made it quite clear that he is not a plaintiff here. The court has made it clear that you can’t really sue for defamation anonymously, most of the defendants are not subject to the court’s jurisdiction, and the only one who was… did not say anything defamatory.

So, once again, Robert Barnes is in these pages for filing a performative, nonsense lawsuit that is so laughably weak that it gets thrown out quickly.

Filed Under: anonymity, covington catholic high school, defamation, robert barnes

The Rorshach Test Of The Covington Catholic Boy's DC Encounter Now Extends To Bogus Lawsuits And Confidential Settlements

from the everyone-sees-what-they-want-to-see dept

Buckle up folks, because this story takes a few twists and turns, and some of them may make you angry — though I hope people will hold back their kneejerk reactions, because that kind of thing is what created this mess in the first place.

As you probably recall, a year ago, there was a whole viral media shitstorm regarding an encounter in Washington DC between some kids from Covington Catholic High School in Kentucky, Native American activist Nathan Phillips, and a bunch of other people, including members of a group known as the Black Israelites, who appeared to be egging everyone on. A first video that made the viral rounds on Twitter just showed the encounter between CCH student Nick Sandmann, clad in a red MAGA hat, and staring down Phillips who was banging a drum. Later videos added in more context, including the Black Israelites and their role in the whole thing. One of the points a few people raised is that your interpretation of the whole thing is very much a Rorschach test for what you already believe. You can reasonably argue that people completely misrepresented the encounter and you can reasonably argue that they did not.

It is a subjective issue. You see it through your own context and experiences, and it comes down to each and everyone’s opinion. I’d personally argue that there was a little bit of truth in nearly all of the viewpoints, and not having the entire context is not akin to false statements, but rather simply not having the full picture. As more context was added, many people changed their views, and that’s cool too.

But given that these are subjective opinions, the idea that one might sue over them is simply batshit insane. And yet, people rushed to sue. In particular, we highlighted how the CCH student at the center of all of this sued the Washington Post, and later both NBC and CNN, for their coverage. Sandmann was represented by L. Lin Wood and Todd McMurtry. (For what it’s worth, Wood recently lost that high profile defamation case against Elon Musk on behalf of cave diver Vern Unsworth). We found little in the lawsuits to be compelling, and were not at all surprised when a judge tossed out the one against the Washington Post, noting that everything they published was protected by the 1st Amendment. However, that case has been reinstated on fairly narrow grounds, following an amended complaint that targets some very specific language used by the Post. I’d still be surprised if he won, but the more narrow claims do at least have slightly more validity to them, especially if the court agrees that Sandmann is not a public figure (which would lower the bar for a defamation claim).

Earlier this week, news broke that CNN and Sandmann had agreed to settle that complaint — and once again we had a bit of a Rorschach test. The terms of the settlement appear to be totally confidential, which is disappointing, but not at all uncommon. It is, in fact, possible that no money exchanged hands at all. However, many people who support Sandmann are insisting that this is vindication for him, even if that’s not at all clear. Some are even saying that CNN must have paid “in the millions.” Again, no information on the settlement is public, and to say that this was vindication or to speculate on any settlement amount seems ridiculous — especially given that the entire thrust of the lawsuit was about news media commenting on issues without knowing the full details or context of the story.

But the story then got even stranger. Because on Wednesday, PJ Media had a headline trumpeting that author Reza Aslan would “face the music” for tweeting that Sandmann had “a punchable face.” Already that should have raised alarm bells, because there is literally nothing at all defamatory in saying someone has “a punchable face.” PJ Media — who at times pretends to support free speech — acted as though this was a legitimate lawsuit. Of course, tellingly, even though they said they had a copy of the complaint, reporter Tyler O’Neil did not link to or publish the lawsuit. Perhaps because it’s utter and complete garbage. You can read it here.

It was actually filed last August. And here’s where we’ll go back a bit. Right after the original Sandmann incident, we had noted that infamously silly lawyer Robert Barnes, who has filed multiple trollish lawsuits that have flopped spectacularly, announced that he would represent any of the Covington kids pro bono in filing lawsuits.

Yet, you will note that Sandmann’s lawsuits were not filed with Barnes as his lawyer, but Lin Wood and Todd McMurtry. However, the lawsuit that PJ Media was trumpeting, about a comment on Sandmann, was filed by Barnes. So this lead to some head scratching. Had Sandmann retained both lawyers for different cases? The answer is no. Barnes simply filed lawsuits on behalf of the Covington kids as John Does.

It’s not even clear that any of the Covington kids are actual clients of his. They may be, but the filing doesn’t confirm that this is actually true. And the key Covington kid, Sandmann, has made it absolutely clear that he is not a Barnes’ client, and that this lawsuit is obviously bullshit — because with regards to Aslan’s statement, it only references Sandmann (and his allegedly “punchable face”) rather than any of the other Covington kids:

If you’re unable to see that image, it’s Sandmann asking Barnes on Twitter:

… would you like to explain why you?re suing for me without my permission? You?ve blocked my lawyers on twitter and now claim you?re suing over the Reza Aslan tweet? Retract and stop lying to the public.

Yes. Barnes can claim all he wants that he?s filed it on behalf of the covington kids but we both know that isn?t true. Reza?s tweet references only one kid, and i take up a majority of the picture. The article he even linked (now deleted) stated this.

It clearly states it?s about me in the title!

And we’re not done with the strangeness yet. The lawsuit itself was filed last August. So why was it making news now? Because Aslan just deleted that tweet. Why did he just delete that tweet now, a year later? Because Barnes only just now served Aslan:

It’s unclear why Aslan even bothered to delete the tweet, other than perhaps a kneejerk reaction upon being served. There’s nothing defamatory at all in what he said. The lawsuit itself is ridiculous. Beyond Aslan, there are a bunch of other plaintiffs who merely stated various opinions about Sandmann (mostly, rather than the supposed “John Does”). Aslan’s co-defendants include Elizabeth Warren, who tweeted “Omaha elder and Vietnam War veteran Nathan Phillips endured hateful taunts with dignity and strength, then urged us all to do better.” What’s defamatory about that? Barnes’ suit claims that she “omitted the true facts.” But that’s not how defamation works. Other defendants include NY Times reporter Maggie Haberman, ABC News commentator Matthew Dowd, Mother Jones Editor-in-Chief Clara Jeffery, historian Kevin Kruse and more. None of what any of them said was defamatory.

And, again, the entire lawsuit is completely laughable, and it’s not even clear who Barnes’ clients really are. Yet, when PJ Media (and Barnes) framed it in a way that suggested to people that the lawsuit against Aslan (who supposedly is going to “face the music”) was on behalf of Sandmann, the Rorschach test continued, with tons and tons of Sandmann’s supporters cheering on a nonsense lawsuit. Indeed, some of the commentators even appear to believe that the CNN settlement was done by Barnes:

It goes on like that for a lot longer, but you get the idea. Notice that basically all of them are doing exactly what Barnes and Sandmann/Wood/McMurtry are suing over: commenting enthusiastically about a story where they only know a small piece of the details, and possibly have the large crux of the situation wrong. Particularly silly is that many of those commenters egging on a completely bogus attack on free speech pretend to be “free speech supporters.”

And, of course, then Sandmann’s actual lawyer Lin Wood had to go on Twitter and demand that Barnes cease and “correct his prior false statements.” It includes what appears to be a threat to take legal action:

Again, here’s the text if you can’t view the screenshot:

Nicholas Sandmann has many legitimate defamation cases remaining for resolution through litigation. @ToddMcMurtry & I prefer to focus on those matters & not be forced to take legal action against another lawyer but Robert E. Barnes crosses line with his claims about Nicholas.

Barnes has been previously warned to stop publicly suggesting or stating that he represents Nicholas. In response, Barnes ?blocked? @ToddMcMurtry & me on Twitter. Barnes apparently cannot control his desire to garner publicity by falsely using Nicholas? name.

For those who can access @Barnes_Law & support his legal efforts for others, please remind him that he cannot ?block? a formal demand letter, a civil complaint, or an ethics complaint. I hope he finally gets the message.

If Barnes does not cease publishing & then correct his prior false statements, Nicholas? attorneys are fully prepared to take legal action against him. So Barnes can take the easy way out or he will get out the hard way – we will sue him. His choice.

Later, Wood (hilariously) claimed that Barnes is “on the right side of CovCath issue.” Which, uh, no.

But, once again, this is all a form of a Rorschach test, and everyone seems to view the story through their own particular prism — as did all of the initial commenters that Wood/Sandmann/Barnes/whoever are suing. And that’s why all of those lawsuits are such bullshit. People reacting to news is not defamation. People not having the full context is not defamation. People expressing their opinion, or explaining how they view things, is not defamation. And the people who have responded to all of the news this week are doing exactly the same thing they seem to think others should be sued over.

So, maybe, just maybe, the best thing here would be stop filing so many bullshit defamation lawsuits, and recognize that free speech sometimes includes speech we don’t like, and that includes people not fully understanding the context. But, of course, that’s not going to happen. Indeed, Sandmann’s other lawyer, Todd McMurtry has instead promised to get back to suing more people:

Sigh.

Filed Under: 1st amendment, cch, covington catholic high school, defamation, elizabeth warren, free speech, l. lin wood, lin wood, nathan phillips, nick sandmann, opinions, resa aslan, robert barnes, rorschach test, todd mcmurtry
Companies: cnn, nbc, washington post

from the at-least-he-won't-be-charging-for-these-failures dept

Over the past few days, a social media shit-storm formed over footage of Catholic private school students in MAGA hats apparently engaging in some bigoted behavior while attending an anti-abortion march at the nation’s capital. As more footage of the incident was released, the formerly crystal clear narrative of bigoted, privileged white dudes antagonizing a Native American demonstrator became a bit more muddied.

By the time the additional footage came to light, it was too late. Decisions had already been made about the mindset of the Catholic school teens, most of which were posted to Twitter. Some journalists and celebrities were in the mix as well, including a few that went so far as to ask for the kids to be doxxed.

What was made of the situation seemed to come down to preexisting notions of what kind of person would wear a Make America Great Again hat. Most of those notions were in agreement: a person wearing that hat is a racist. In some cases, this is probably true. It’s unknown whether the students being called racists on Twitter are actually racist, but there’s hardly enough clear evidence on hand to declare this a fact.

Whatever you make of the situation (and the hats), there’s an article written that comes down firmly on your side. Robby Soave’s article at Reason says everyone calling these kids racist is wrong because the extended footage shows details that don’t align with the skewed narrative created by edited clips. Over at Deadspin, Laura Wagner says don’t doubt your preconceptions: the footage shows exactly what people thought it showed.

The end result was a handful of teens being called racists, along with their private school, parents, and school administrators. Naturally, someone wants to sue about this. That someone is stunt lawyer Robert Barnes, who was previously seen here at Techdirt declaring a court’s indication it would dismiss Chuck Johnson’s lawsuit against Twitter a victory for his client. He also represented a person who trolled reporters into calling her a racist when she sued the trolled reporters who called her a racist.

Barnes says he will take any Covington student’s case pro bono to sue anyone who called this student a racist. Barnes graciously gave everyone threatened by this uber-vague threat 48 hours to remove the supposedly libelous content. Some have complied. Others have doubled down. Most people appear to not care one way or the other.

Barnes has been making his way around right-leaning press outfits (Fox News, PJ Media) to inform everyone about his intent to sue. So far, he has yet to name any secured clients, but that hasn’t stopped him from claiming he’s going to sue people for forming an opinion.

So a lot of these journalists have been saying false statements about these kids, false statements about the kids that were at the Lincoln Memorial, false statements about kids that were in various photographs related to the school, slurring and libeling the entire school and all the alumni for the school, and all you have to prove is they were negligent in doing so and by this standpoint, by this point in time, it is clear that anyone who continues to lie and libel about these kids has done so illegally and can be sued for it.

Barnes’ statement about the intricacies of legal law are a little vague. While it’s true none of these minors could be considered public figures — thus lowering the bar for bringing claims — it’s a bit more difficult than claiming anyone calling these kids racists are engaging in libel. Given the context presented by the original edited video that circulated throughout social media, it was a common opinion to form.

A far more rational take can be found at the Volokh Conspiracy, which notes the bar is lower for private figures, but not so low Barnes can step over it simply by alleging libel per se.

My guess is that the plaintiffs would have a hard time showing specific damages stemming from a particular Tweet or even a statement in an out-of-town newspaper. They may well be damaged by the controversy as a whole, but that doesn’t mean they can show such damage stemming from a particular defendant’s speech. They would therefore need to claim presumed or punitive damages; and that requires more or a less deliberate lie, not just a negligent mistake.

Will these teens suffer harm from being called racists? Most likely, there will be some fallout, but it will likely be localized and short-term. The bar Barnes needs to reach in Kentucky (where the students go to school) says defamation per se includes false attributions of “having a repulsive disease, criminality, incest, or promiscuity and uninvited seduction.” None of those seem to fit the characterization most frequently seen in any of the nominal litigation targets’ social media posts.

Truth is the absolute defense, of course, but it’s unlikely the court will try to determine whether or not the students being called racists are actually racists. Possibly some of them are, but even racists get offended when they’re called racists.

It’s another cautionary tale about reacting too quickly to social media stimuli, but this time there’s a bonus threat of mass litigation. Unfortunately, Fox News has clouded the issue by stating this will be a “class action defamation suit,” which is, of course, a legal impossibility. Each plaintiff will have to file their own lawsuit as libel is — with a few rare exceptions — an individualized tort. Barnes is likely aware of this, but that hasn’t stopped the impossible idea from taking hold. For added fun, visit the comment thread for the Volokh post, which contains 280+ highly-partisan comments (both sides!) and a large number of people incorrecting each other about the nuances of libel law. Oh, and it appears the parents of the student featured most prominently in the videos have decided it would be smarter to pay for their own legal representation, not that this guarantees a victory Barnes would be unable to secure pro bono.

Filed Under: covington catholic high school, defamation, robert barnes, social media

Court Tosses Out Silly Trollish Publicity Stunt Defamation Lawsuit

from the but-no-anti-slapp-win dept

Almost exactly a year ago, we wrote about a ridiculous defamation lawsuit filed by a plaintiff who has a history of fairly trollish, attention seeking behavior. I chose not to name the person in the post as I argued that the lawsuit itself was something of a publicity stunt, and I’ll continue to do that here, even though it will become clear in the quoted parts of the ruling below. I have no interest in participating in the publicity stunt part of the lawsuit — but do feel compelled to write about it because of the First Amendment issues that are a key component in the case. Amusingly, the plaintiff had a history of loudly proclaiming her support for free speech and the First Amendment, even going so far as to once state: “I care more about free speech… than almost any other issue.”

And yet, she sued a reporter over a tweet. Here’s the way I described it last year:

The background is pretty straightforward. The person in question, who is known as a strong Trump supporter (though, in the past also got attention as a strong Bernie supporter, and once said this: “I got called a literal Nazi so many times, I eventually went, Fuck it, I?ll just go all in.”) was at the White House and had a picture taken of herself and someone else, standing behind a podium, with both doing the “OK” sign with their hands. There was a stupid little thing a few months back where some 4chan trolls tried to pretend that the OK sign was a symbol for “White Power”. The idea was to get the press to report on this kind of thing and then laugh at how silly the press could be. Well, mission accomplished. A reporter for Fusion tweeted about the photo of these two people doing the “OK” sign were “White Power” hand signals being done in the White House.

As we noted last year, among the many, many issues that doomed the plaintiff’s case was the fact that she admitted in a tweet that the whole thing was an attempt to troll journalists:

For a defamation case against a public figure to have any chance, a plaintiff needs to show first that the statement was a false statement of fact, but also that it was done with “actual malice.” Actual malice has a specific legal meaning that is not just “the person wanted to do something mean.” It specifically means that the person making the statement did so knowing it was false or, alternatively, with reckless disregard for whether it was false. Having the plaintiff flat out admit that it was all part of an attempt to trick people kind of undermines the entirety of the “actual malice” part of the lawsuit.

And the court noticed. In a ruling yesterday, the DC district court tossed out the case. And the key reason? A failure to show “actual malice.” Oh, it also recognizes she’s a troll. In the very first sentence of the opinion.

Plaintiff Cassandra Fairbanks trolled the web through Twitter, releasing a photo of herself and a fellow journalist in the White House press room making a gesture widely recognized as the ?okay? hand symbol but also speculated at the time to be a ?white power? symbol. Defendant Emma Roller, also a journalist, retweeted the photo with the caption, ?just two people doing a white power hand gesture in the White House.? Ms. Fairbanks sued Ms. Roller for defamation. The First Amendment requires that Ms. Fairbanks? claim be considered ?against the background of a profound national commitment? to the freedom of speech and especially of political speech, which is ?essential to the security of the Republic.? See New York Times v. Sullivan… This ?fundamental principle of our constitutional system? obligates Ms. Fairbanks, as a public figure, to support her defamation claim by alleging facts that support a finding of actual malice on the part of Ms. Roller…. Because Ms. Fairbanks has failed to allege such facts, Ms. Roller?s Motion to Dismiss under the Federal Rules of Civil Procedure will be granted.

Oh yeah, note how the court, from the opening, is talking about the First Amendment. I should remind you what the plaintiff said about the lawsuit at one point:

Anyway, back to the case. As we expected, the court noted the Plaintiff’s own admission to trolling. It mentions the tweet we showed about “trolling” above and in the discussion part notes that’s part of the reason there’s no actual malice:

Especially given the public debate about the ?okay? hand gesture at the time of Ms. Roller?s tweet, Ms. Fairbanks? allegations do not provide clear and convincing evidence of actual malice. Indeed, the inescapable conclusion one reaches upon viewing the photo and tweets at issue (including Ms. Fairbanks? tweets) is that Ms. Fairbanks intended her photo and hand gesture to provoke, or troll, people like Ms. Roller?whether because the gesture was actually offensive or because they would think that it was offensive?not that Ms. Fairbanks was the victim of a malicious attack based on innocent actions. So Ms. Fairbanks has failed to state a claim and her case should be dismissed.

Unfortunately, we were also correct in the second part of our initial post — that because the case was filed in federal court in Washington DC, it would mean that Washington DC’s (pretty strong) anti-SLAPP law would be inapplicable. A horrible ruling from a few years back, which goes against rulings in most other federal courts, found that DC’s anti-SLAPP law couldn’t be used in federal court. The defendant in this case sought to use it anyway, but the court rejected it:

The District of Columbia?s anti-SLAPP statute does not apply in federal court, so Ms. Roller?s Motion to Dismiss and request for attorney?s fees under the anti-SLAPP statute will be denied.

The Defendant had tried to argue that the infamous Michael Mann ruling had overturned that earlier ruling concerning DC SLAPPs in federal courts, but the court disagreed.

Once again, this is another example of why we so badly need a federal anti-SLAPP law.

Oh, and I should note that the plaintiff’s lawyer in this case just happens to be the same guy, Robert Barnes, who we wrote about yesterday for his failed arguments that Twitter somehow violated Chuck Johnson’s rights in kicking Johnson off its platforms. So while he seems to making a name for himself, it mostly appears to be in filing failed lawsuits that are dumped on First Amendment grounds on behalf of infamous Trump supporting internet trolls. I’m not sure that’s a reputation worth having.

Filed Under: anti-slapp, cassandra fairbanks, dc, defamation, emma roller, first amendment, free speech, robert barnes, trolling, trolls

Court Not At All Impressed By Chuck Johnson's Silly Lawsuit Against Twitter, Plans To Grant Anti-SLAPP Win To Twitter

from the slappity-slapp-slapp dept

Back in January we wrote about infamous internet troll Chuck Johnson’s absolutely ridiculous lawsuit against Twitter for kicking him off the service. As we noted at the time, the lawsuit appeared to be nearly a carbon copy of Dennis Prager’s silly lawsuit against YouTube. And, if you recall, a court tossed that lawsuit earlier this year. And now it’s clear that a court is about to toss Johnson’s lawsuit as well on anti-SLAPP grounds.

On Tuesday, the court released a tentative ruling and lays out the many, many reasons why Johnson has no case at all, both under CDA 230 and the First Amendment.

Plaintiff further argues that Defendant is not entitled to the protection of the CDA because Defendant seeks to be treated both as a neutral content provider pursuant to the CDA, but at the same time asks for First Amendment protection for its editorial decision to terminate Plaintiff?s accounts. But this is not the standard for immunity under the CDA. (See 47 U.S.C. §230.) Plaintiff cites to 47 U.S.C. §230(c)(2), which requires a showing of good faith in order to be protected from civil liability by the CDA. Defendant, however, relies on subdivision (c)(1), which provides that ?[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.? The heading of subdivision (c) is ?Protection for ?Good Samaritan? blocking and screening of offensive material.? (Italics added.) Plaintiff fails to establish that Defendant is not entitled to protection under the CDA, i.e., Plaintiff fails to show that his claims are not barred by the CDA.

Plaintiff also fails to show that his claims can survive Defendant?s challenge based on Defendant?s First Amendment right. Defendant is a private sector company. Although it does invite the public to use its service, Defendant also limits this invitation by requiring users to agree to and abide by its User Rules, in an exercise of Defendant?s First Amendment right. The rules clearly state that users may not post threatening tweets, and also that Defendant may unilaterally, for any reason, terminate a user?s account. The rules reflect Defendant?s exercise of free speech. (See Hurley, supra, 515 U.S. at p. 574.) Plaintiff fails to show that his claims are not barred by Defendant?s First Amendment right to exercise independent editorial control over the content of its platform. Defendant?s choice to close Plaintiff?s account on the ground that Plaintiff?s tweet was threatening and harassing is an editorial decision regarding how to present content, i.e., an act in furtherance of Defendant?s free speech right. Defendant?s choice not to allow certain speech is a right protected by the First Amendment.

The court also laughs off the attempt by Johnson and his lawyers to get around all this by arguing that a well known Supreme Court case concerning shopping malls (Robins v. Pruneyard Shopping Center) somehow means that social media sites can’t remove users. We’ve seen lots of people make this argument for why websites must post the speech of anyone who wants to use those websites, but no court in the land has ever agreed, and this California court certainly wasn’t going to be the first.

Plaintiff?s reliance on Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 is misplaced and fails to defeat Defendant?s CDA and First Amendment protections. In Robins, the California Supreme Court held that the soliciting at a shopping center of signatures for a petition to the government is an activity protected by the California Constitution. The Court specifically noted that ?[b]y no means do we imply that those who wish to disseminate ideas have free rein.? The Court reasoned: ?A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations . . . would not markedly dilute defendant’s property rights.? (Id. at pp. 910-911.) The case is distinguishable from the instant action, where Plaintiff?s tweet could reasonably be, and in fact was, interpreted as threatening and harassing, unlike activity that ?would not markedly dilute defendant?s property rights.? (See Sprankling Decl. at Ex. D.) Moreover, Defendant?s rules were adopted to ensure that Defendant is able to maintain control over its site and to protect the experience and safety of its users.

Somewhat hilariously, Johnson’s lawyer in the case, Robert Barnes, took to Twitter after the tentative ruling to not just announce a plan to appeal, but… incredibly… to claim victory.

Apparently, Chuck Johnson hired Baghdad Bob as his lawyer.

The key points that Barnes declares “victory” over both appear to involve a somewhat twisted interpretation of what the court is saying. On the first point, of the court declaring Twitter to be a “public forum,” that is true, but specifically in the context of California’s anti-SLAPP law. I mean, the ruling says that explicitly:

In the instant case, the parties appear to agree that (1) Twitter is a public forum for purposes of the anti-SLAPP statute…

The fact that it is a public forum for the purposes of California’s anti-SLAPP statute has no bearing at all on whether or not Twitter is a “public forum” in the sense of spaces created by the government in which speech regulations are limited under the First Amendment. They both use the words “public forum” but they mean totally different things.

The second point, about Twitter’s control over its platform being a “matter of public interest,” is also specific to California’s anti-SLAPP law, which requires the speech in question to be about a matter of public interest. That doesn’t help Johnson’s case at all, unless you’re twisting this specific point concerning anti-SLAPP laws into believing it refers to the government having an interest in regulating how Twitter runs its website. But that would be a totally nonsense interpretation. Though it appears to be the one that Johnson’s lawyer wants to go with. The fact that Twitter agreed to both of the points that Barnes is now celebrating (as is necessary under California’s anti-SLAPP law) should show you why neither of these points is even remotely damaging to Twitter. And, no, this is not Barnes using 9th dimensional chess to get Twitter to admit to something that harms it elsewhere. This is just nonsense.

Either way, assuming Twitter holds on and wins the anti-SLAPP, it will mean that Johnson will be on the hook for Twitter’s legal fees. One hopes that his lawyer informed him not only of this, but the fact that this would also include the additional fees from an ongoing appeal that he seems unlikely to win.

Filed Under: anti-slapp, california, cda 230, chuck johnson, free speech, intermediary liability, public forum, robert barnes, section 230
Companies: twitter