slapp – Techdirt (original) (raw)

The Wikimedia Foundation Successfully Sees Off Another SLAPP Suit, But More Protection Is Needed Globally

from the another-one-bites-the-dust dept

Wikipedia seems such an essential and benign aspect of the online world that it is hard to understand why people would want to attack it in the courts. But it is nonetheless subject to lawsuits that try to force it to censor its articles because they contain facts that are inconvenient for someone. The Wikimedia Foundation, the non-profit organization that runs the Wikipedia family of sites, has just seen off another such attempt to bully it into deleting true information. The case, reported on the Wikimedia blog, exposes some of the difficulties that the Wikipedia Foundation and its community face. As the post notes, this legal action has all the hallmarks of a “SLAPP” lawsuit: a strategic lawsuit against public participation:

The Wikipedia article in question names Mladen Pavlovic as one of three co-founders of Tipico, a major European gambling company headquartered in Malta. This was already public information: Pavlovic has been named in reputed sources within German news media, and in official documents held by Malta’s official company register. The Wikipedia article also mentioned that some Tipico shares had been acquired by a Jersey-based investor — information that also became a focus of the lawsuit.

The Wikimedia blog post notes that Pavlovic could have attempted to convince the Wikipedia community that the article would have been improved by deleting the material under discussion. Instead, Pavlovic decided to choose “legal escalation”:

Pavlovic’s lawsuit was especially intensive for our team because of the unusual number of legal briefs to which we were asked to reply. Every time we comprehensively answered the arguments Pavlovic’s lawyers had raised, they would file a new legal submission with the court. These usually repeated earlier arguments, and introduced—in our opinion—increasingly thin or irrelevant new ones. Even after his lawyers had orally debated the case in front of a judge—which is typically the last step before a ruling—they continued their legal submissions.

That approach seems a conscious attempt to deplete Wikimedia’s limited financial resources, increasingly under strain:

The Foundation’s legal team now also has to deal with a wave of new and very demanding “online safety” laws across the world: for example, the EU Digital Services Act (DSA) and the UK Online Safety Act. These conditions force us to be as efficient, creative, and effective as possible, including in lawsuits like this one.

On 16 November 2023, a court in Munich ruled that the Wikimedia Foundation correctly refused to censor Pavlovic’s name from the Wikipedia article about Tipico. But rather than accept the result, Pavlovic opted once again for the heavy legal approach:

Pavlovic initially indicated the intention to appeal the case, potentially for years. However, when the case actually went up to appeal, it appeared increasingly likely that he was going to lose. Rather than continue, he ultimately dropped the case, which led to a final judgment that protected the Wikipedia article as correctly sourced and relevant public information!

That’s good news, but it’s only one SLAPP suit, and Wikimedia’s post notes that the organization typically has to deal with several of them each year. As the blog post says, what is needed is that:

legislators all over the world will push forward with ambitious and effective anti-SLAPP reforms. When doing so, they should remember that in addition to protecting journalists and whistleblowers, it’s important to also protect projects like Wikipedia and the thousands of citizens and organizations that make them possible.

Some progress has already been made. In March of this year, the EU passed a Directive on “protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (‘Strategic lawsuits against public participation’)”, which will enter into force in 2026. The UK has also passed anti-SLAPP legislation, but it applies only to publications about “economic crimes”. The situation in the US is still unsatisfactory, for reasons the Public Participation Project explained in 2022:

The current patchwork of state-based anti-SLAPP laws, which some but not all states have, leaves concerning gaps for aggressive plaintiffs to forum shop, for example, calculating the place to sue where they would have the least amount of anti-SLAPP restrictions. This type of behavior frustrates the intent of state laws and leads to situations where plaintiffs can fight on their chosen terms, no matter how unfair. A federal anti-SLAPP statute would close the loophole that lets retaliatory plaintiffs file state-based claims in jurisdictions with looser First Amendment protections or file federal claims in federal court. Rather than picking the easiest state to win in, plaintiffs would be forced to litigate in federal courts.

SLAPP suits are bad wherever they are used, but they are particularly egregious when brought against charitable organizations like Wikimedia that are working selflessly for the benefit of everyone. Strong and effective anti-SLAPP laws everywhere are long overdue.

Follow me @glynmoody on Mastodon and on Bluesky.

Filed Under: dsa, economic crimes, eu, germany, malta, munich, online safety act, public participation project, slapp, uk, wikimedia, wikipedia
Companies: tipico

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

Disney Cites Supreme Court’s NetChoice Decision In Fighting Gina Carano’s SLAPP Suit

from the making-quick-work-of-it dept

Remember that SLAPP suit, financed by Elon Musk, that actor Gina Carano filed against Disney after they chose not to renew her contract for the Mandalorian? That’s the one where Carano seems to be insisting that failing to renew her contract after she made some controversial political comments is somehow a violation of her First Amendment rights.

The entire lawsuit is a joke, but the two sides have been flinging paperwork back and forth over the last few months. I’d been waiting for the judge to issue some sort of opinion on the pending motion to dismiss, but I spotted one filing by Disney last week that struck me as worth highlighting.

Disney filed a Notice of Supplemental Authority to highlight to the court some of the verbiage in the Supreme Court’s ruling last week in the NetChoice/CCIA cases, regarding whether or not Texas and Florida can pass laws mandating that social media sites must host certain types of political speech.

As Disney points out, the language in the majority opinion seems “relevant” to Disney’s arguments against Carano’s.

On July 1, 2024, the Supreme Court of the United States issued an opinion in Moody v. NetChoice, LLC, attached as Exhibit A. The First Amendment analysis in Part III of the Court’s opinion is relevant to the parties’ motion-to-dismiss arguments. In particular, the Supreme Court held:

The language quoted above confirms that Disney has a right to exclude speech that alters its expressive activity, that the First Amendment protects its decision to decline to accommodate messages it would prefer to exclude, and that it does not lose its First Amendment right simply because it allowed others’ speech….

I don’t see how any of this should make any difference at all no matter what, but it’s still fascinating to see how the decision is already being cited in situations like this one.

It’s also an example of why, yes, it is important for companies to have First Amendment rights, as it should be helpful towards stopping these sorts of nonsense lawsuits.

Filed Under: 1st amendment, elon musk, free speech, gina carano, slapp, slapp suit
Companies: ccia, disney, netchoice

Trump Threatens To Sue ProPublica For Reporting On Payouts To Witnesses In His Various Cases

from the party-of-free-speech? dept

ProPublica has quite a scoop of a story, highlighting how various witnesses and potential witnesses in the long list of lawsuits Donald Trump is facing, suddenly, coincidentally, seem to be getting large payouts from Trump, his companies, and his campaign.

The benefits have flowed from Trump’s businesses and campaign committees, according to a ProPublica analysis of public disclosures, court records and securities filings. One campaign aide had his average monthly pay double, from 26,000to26,000 to 26,000to53,500. Another employee got a $2 million severance package barring him from voluntarily cooperating with law enforcement. And one of the campaign’s top officials had her daughter hired onto the campaign staff, where she is now the fourth-highest-paid employee.

These pay increases and other benefits often came at delicate moments in the legal proceedings against Trump. One aide who was given a plum position on the board of Trump’s social media company, for example, got the seat after he was subpoenaed but before he testified.

ProPublica isn’t one to publish stuff without having the receipts, and the reporting here seems pretty solid. They’re not directly accusing Trump of witness interference or bribery, but they are noting (accurately) that it all certainly looks pretty damn sketchy.

But, what’s more interesting, and relevant to Techdirt’s usual beat, is this:

Trump’s attorney, David Warrington, sent ProPublica a cease-and-desist letter demanding this article not be published. The letter warned that if the outlet and its reporters “continue their reckless campaign of defamation, President Trump will evaluate all legal remedies.”

So, first of all, Warrington presents himself on his own bio as the “lawyer to the Liberty Movement,” which is pretty fucking rich for someone threatening to sue a news org for doing journalism his client doesn’t like:

Image

No offense, but if you’re threatening SLAPP suits to silence people doing inconvenient reporting, you’re not a part of any “liberty movement”.

Of course, Trump has filed a bunch of defamation lawsuits over critical reporting in the past few years, and they’ve not gone well to date. If he followed through on this threat, it seems quite unlikely to succeed in court again, but that’s never been the point.

Trump appears to be a classic SLAPP (Strategic Lawsuit Against Public Participation) filer. He sues news orgs not because he has a legitimate legal claim, but because he wants to waste time and money for anyone reporting critically on him. This is done to (1) punish those who have done that kind of reporting and (2) to scare off others from doing more such reporting.

The very first anti-SLAPP laws came about in response to property developers filing bogus SLAPP suits against people protesting development plans. So it’s perhaps not surprising that Trump, who comes from the property development world, has no problem filing SLAPP suit after SLAPP suit.

But, this is yet another reason why we need a federal anti-SLAPP law and strong anti-SLAPP laws in every state. These laws need to quickly toss such cases out of court and require the plaintiff to pay the legal fees of the defendant. Donald Trump continues to be exhibit A for why such laws are needed.

Filed Under: anti-slapp, defamation, donald trump, payouts, slapp, witness tampering
Companies: propublica

Judge Slams Elon Musk For Filing Vexatious SLAPP Suit Against Critic, Calling Out How It Was Designed To Suppress Speech

from the slappity-slapp-slapp dept

Self-described “free speech absolutist” Elon Musk has just had a judge slam him for trying to punish and suppress the speech of critics. Judge Charles Breyer did not hold back in his ruling dismissing Musk’s utterly vexatious SLAPP suit against the Center for Countering Digital Hate (CCDH).

Sometimes it is unclear what is driving a litigation, and only by reading between the lines of a complaint can one attempt to surmise a plaintiff’s true purpose. Other times, a complaint is so unabashedly and vociferously about one thing that there can be no mistaking that purpose. This case represents the latter circumstance. This case is about punishing the Defendants for their speech.

As a reminder, this case was brought after Musk got upset with CCDH for releasing a report claiming that hate speech was up on the site. I’ve noted repeatedly that I’m not a fan of CCDH and am skeptical of any research they release, as I’ve found them to have very shoddy, results-driven methodologies. So, it’s entirely possible that the report they put out is bullshit (though, there have been other reports that seem to confirm its findings).

But the way to respond to such things is, as any actual “free speech absolutist” would tell you, with more speech. Refute the findings. Explain why they were wrong. Dispute the methodology.

But Elon Musk didn’t do that.

He sued CCDH for their speech and put up a silly façade to pretend it wasn’t about their speech. Instead, he claimed it was some sort of breach of contract claim and a Computer Fraud and Abuse Act (CFAA) claim (which long-term Techdirt readers will recognize as a law intended to be used against “hacking” but which has been regularly used in abusive ways against “things we don’t like”).

Despite my general distrust of CCDH’s research and methodologies, this case seemed like an obvious attack on speech. I was happy to see the Public Participation Project (where I am a board member) file an amicus brief (put together by the Harvard Cyberlaw clinic) calling out that this was a clear SLAPP suit.

CCDH itself filed an anti-SLAPP motion, also calling out how the entire lawsuit was clearly an attempt to punish the organization for its speech.

And, thankfully, the judge agreed. The judge noted that it’s clear from the complaint and the details of the case that the lawsuit is about CCDH’s speech, at which point the burden shifts to the plaintiff to prove a “reasonable probability” of prevailing on the merits to allow the case to move forward.

Let’s just say that ExTwitter’s arguments don’t go over well. ExTwitter’s lawyers argued that it wasn’t really complaining about CCDH’s speech, but rather the way in which it collected the data it used to make its argument regarding hate speech. The judge doesn’t buy it:

But even accepting that the conduct that forms the specific wrongdoing in the state law claims is CCDH’s illegal access of X Corp. data, that conduct (scraping the X platform and accessing the Brandwatch data using ECF’s login credentials) is newsgathering—and claims based on newsgathering arise from protected activity….

It is also just not true that the complaint is only about data collection. See Reply at 3 (arguing that X Corp.’s contention that its “claims arise from ‘illegal access of data,’ as opposed to speech,” is the “artifice” at “the foundation of [this] whole case.”) (quoting Opp’n at 10). It is impossible to read the complaint and not conclude that X Corp. is far more concerned about CCDH’s speech than it is its data collection methods. In its first breath, the complaint alleges that CCDH cherry-picks data in order to produce reports and articles as part of a “scare campaign” in which it falsely claims statistical support for the position that the X platform “is overwhelmed with harmful content” in order “to drive advertisers from the X platform.” See FAC ¶ 1. Of course, there can be no false claim without communication. Indeed, the complaint is littered with allegations emphasizing CCDH’s communicative use of the acquired data. See, e.g., id. ¶¶ 17–20 (reports/articles are based on “flawed ‘research’ methodologies,” which “present an extremely distorted picture of what is actually being discussed and debated” on the X platform, in order to “silence” speech with which CCDH disagrees); id. ¶ 43 (CCDH “used limited, selective, and incomplete data from that source . . . that CCDH then presented out of context in a false and misleading manner in purported ‘research’ reports and articles.”), id. ¶ 56 (“CCDH’s reports and articles . . . have attracted attention in the press, with media outlets repeating CCDH’s incorrect assertions that hate speech is increasing on X.”).

The judge also correctly calls out that not suing for defamation doesn’t mean you can pretend you’re not suing over speech, when that’s clearly the intent here:

Whatever X Corp. could or could not allege, it plainly chose not to bring a defamation claim. As the Court commented at the motion hearing, that choice was significant. Tr. of 2/29/24 Hearing at 62:6–10. It is apparent to the Court that X Corp. wishes to have it both ways—to be spared the burdens of pleading a defamation claim, while bemoaning the harm to its reputation, and seeking punishing damages based on reputational harm.

For the purposes of the anti-SLAPP motion, what X Corp. calls its claims is not actually important. The California Supreme Court has held “that the anti-SLAPP statute should be broadly construed.” Martinez, 113 Cal. App. 4th at 187 (citing Equilon Enters. v. Consumer Cause, Inc., 29 Cal. 4th 53, 60 n.3 (2002)). Critically, “a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a ‘garden variety breach of contract [or] fraud claim’ when in fact the liability claim is based on protected speech or conduct.” Id. at 188 (quoting Navellier, 29 Cal. 4th at 90–92); see also Baral v. Schnitt, 1 Cal. 5th 376, 393 (2016) (“courts may rule on plaintiffs’ specific claims of protected activity, rather than reward artful pleading”); Navellier, 29 Cal. 4th at 92 (“conduct alleged to constitute breach of contract may also come within constitutionally protected speech or petitioning. The anti-SLAPP statute’s definitional focus in not the form of the plaintiff’s cause of action[.]”).

This is important, as we’ve seen other efforts to try to avoid anti-SLAPP claims by pretending that a case is not about speech. It’s good to see a judge call bullshit on this. Indeed, in a footnote, the judge even calls out Elon’s lawyers for trying to mislead him about all this:

At the motion hearing, X Corp. asserted that it was “not trying to avoid defamation” and claimed to have “pleaded falsity” in paragraph 50 of the complaint. Tr. of 2/29/24 Hearing at 59:20–23. In fact, paragraph 50 did not allege falsity, or actual malice, though it used the word “incorrect.” See FAC ¶ 50 (“incorrect implications . . . that hate speech viewed on X is on the rise” and “incorrect assertions that X Corp. ‘doesn’t care about hate speech’”). When the Court asked X Corp. why it had not brought a defamation claim, it responded rather weakly that “to us, this is a contract and intentional tort case,” and “we simply did not bring it.” Tr. of 2/29/24 Hearing at 60:1–12; see also id. at 60:21–22 (“That’s not necessarily to say we would want to amend to bring a defamation claim.”).

The judge outright mocks ExTwitter’s claim that they were really only concerned with the data scraping techniques and that they would have brought the same case even if CCDH hadn’t published its report. He notes that each of the torts under which the case was brought require ExTwitter to show harm, and the only “harms” they discuss are “harms” from the speech:

X Corp.’s many allegations about CCDH’s speech do more than add color to a complaint about data collection—they are not “incidental to a cause of action based essentially on nonprotected activity.” See Martinez, 113 Cal. App. 4th at 187. Instead, the allegations about CCDH’s misleading publications provide the only support for X Corp.’s contention that it has been harmed. See FAC ¶ 78 (breach of contract claim: alleging that CCDH “mischaracterized the data . . . in efforts to claim X is overwhelmed with harmful conduct, and support CCDH’s call to companies to stop advertising on X. . . . As a direct and proximate result of CCDH’s breaches of the ToS in scraping X, X has suffered monetary and other damages in the amount of at least tens of millions of dollars”); ¶¶ 92– 93 (intentional interference claim: alleging that Defendants “intended for CCDH to mischaracterize the data regarding X in the various reports and articles . . . to support Defendants’ demands for companies to stop advertising on X” and that “[a]s a direct and proximate result of Defendants intentionally interfering with the Brandwatch Agreements . . . X Corp. has suffered monetary and other damages of at least tens of millions of dollars”); ¶¶ 98–99 (inducing breach of contract claim: alleging that “X Corp. was harmed and suffered damages as a result of Defendants’ conduct when companies paused or refrained from advertising on X, in direct response to CCDH’s reports and articles” and that “[a]s a direct and proximate result of Defendants inducing Brandwatch to breach the Brandwatch Agreements . . . X Corp. has suffered monetary and other damages in the amount of at least tens of millions of dollars.”).

The “at least tens of millions of dollars” that X Corp. seeks as damages in each of those claims is entirely based on the allegation that companies paused paid advertising on the X platform in response to CCDH’s “allegations against X Corp. and X regarding hate speech and other types of content on X.” See id. ¶ 70. As CCDH says, “X Corp. alleges no damages that it could possibly trace to the CCDH Defendants if they had never spoken at all.” Reply at 3. Indeed, X Corp. even conceded at the motion hearing that it had not alleged damages that would have been incurred if CCDH “had scraped and discarded the information,” or scraped “and never issued a report, or scraped and never told anybody about it.” See Tr. of 2/29/24 Hearing at 7:22–8:3. The element of damages in each state law claim therefore arises entirely from CCDH’s speech.

In other words, stop your damned lying. This case was always about trying to punish CCDH for its speech.

ExTwitter could still get past an anti-SLAPP motion by showing it had a likelihood of succeeding on the other claims, but no such luck. First up are the “breach of contract” claims that are inherently silly for a variety of reasons (not all of which I’ll go over here).

But the biggest one, again, is that if this were a legitimate breach of contract claim, Musk wouldn’t be seeking “reputational damages.” But he is. And thus:

Another reason that the damages X Corp. seeks—“at least tens of millions of dollars” of lost revenue that X Corp. suffered when CCDH’s reports criticizing X Corp. caused advertisers to pause spending, see FAC ¶ 70—are problematic is that X Corp. has alleged a breach of contract but seeks reputation damages. Of course, the main problem with X Corp.’s theory is that the damages alleged for the breach of contract claim all spring from CCDH’s speech in the Toxic Twitter report, and not its scraping of the X platform. See Reply at 7 (“Because X Corp. seeks (impermissibly) to hold CCDH U.S. liable for speech without asserting a defamation claim, it is forced to allege damages that are (impermissibly) attenuated from its claimed breach.”). One way we know that this is true is that if CCDH had scraped the X platform and never spoken, there would be no damages. Cf. ACLU Br. at 12. (“Had CCDH U.S. praised rather than criticized X Corp., there would be no damages to claim and therefore no lawsuit.”). Again, X Corp. conceded this point at the motion hearing.

CCDH’s reputation damages argument is another way of saying that the damages X Corp. suffered when advertisers paused their spending in response to CCDH’s reporting was not a foreseeable result of a claimed breach.

In other words, the actual issue here wasn’t any “breach of contract”. Just the speech. Which is protected.

And that becomes important for a separate analysis of whether or not the First Amendment applies here, with the judge going through the relevant precedents and noting that there’s just nothing in the case that suggests any of the relevant damages are due to any claimed contractual breach, rather than from CCDH’s protected speech:

Here, X Corp. is not seeking some complicated mix of damages—some caused by the reactions of third parties and some caused directly by the alleged breach. The Court can say, as a matter of law, whether the single type of damages that X Corp. seeks constitutes “impermissible defamation-like publication damages that were caused by the actions and reactions of third parties to” speech or “permissible damages that were caused by [CCDH’s] breaches of contract.”….

The breach that X Corp. alleges here is CCDH’s scraping of the X platform. FAC ¶ 77. X Corp. does not allege any damages stemming directly from CCDH’s scraping of the X platform.19 X Corp. seeks only damages based on the reactions of advertisers (third parties) to CCDH’s speech in the Toxic Twitter report, which CCDH created after the scraping. See FAC ¶¶ 70, 78; see also ACLU Br. at 12 (“The damages X Corp. seeks . . . are tied to reputational harm only, with no basis in any direct physical, operational or other harm that CCDH U.S.’s alleged scraping activities inflicted on X Corp.”). That is just what the Fourth Circuit disallowed in Food Lion, 194 F.3d at 522. The speech was not the breach, as it was in Cohen. And X Corp.’s damages would not have existed even if the speech had never occurred, as in Newman, 51 F.4th at 1134. Here, there would be no damages without the subsequent speech. Accordingly, the Court can hold as a matter of law that the damages alleged are impermissible defamation-like publication damages caused by the actions of third parties to CCDH’s report.

And, finally, the court says it would be “futile” to allow ExTwitter to amend the complaint and try again. Everything here is about punishing CCDH for its speech. While the judge notes that courts should often give plaintiffs leave to amend in cases where it makes sense, here he rightly fears that ExTwitter would only amend as further punishment for CCDH’s speech.

ExTwitter argued that it could amend the complaint to show that the data scraping harmed the “safety and security” of the site, and that it created harm for the company in having to protect the site. Again, the judge points out how ridiculous both arguments are.

On the “safety and security” side, the judge effectively says the legal equivalent of “I wasn’t born yesterday.” Nothing in this scraping puts users at risk. It was just a sophisticated search of Twitter’s site:

While security and safety are noble concepts, they have nothing to do with this case. The Toxic Twitter report stated that CCDH had used the SNScrape tool, “which utilizes Twitter’s search function,” to “gather tweets from” “ten reinstated accounts,” resulting in a “dataset of 9,615 tweets posted by the accounts.” Toxic Twitter at 17. There is no allegation in the complaint, and X Corp. did not assert that it could add an allegation, that CCDH scraped anything other than public tweets that ten X platform users deliberately broadcast to the world.21 No private user information was involved—no social security numbers, no account balances, no account numbers, no passwords, not even “gender, relationship status, ad interests etc.” See Meta Platforms, Inc. v. BrandTotal Ltd., 605 F. Supp. 3d 1218, 1273 (2022).

And, importantly, the judge notes that even if some users of ExTwitter want to delete their tweets, it doesn’t implicate their “safety and security” that someone might have seen (or even saved) their tweets earlier:

When asked why the collecting of public tweets implicates users’ security interests, X Corp. insisted that “this all goes to control over your data,” and that users expect that they will be able to take down their tweets later, or to change them—abilities they are robbed of when the “data” is scraped. See Tr. of 2/29/24 Hearing at 40:17–24. But even assuming that it is “very important” to a user that he be able to amend or remove his pro-neo-Nazi tweets at some point after he has tweeted them, see id. at 40:24–25, a user can have no expectation that a tweet that he has publicly disseminated will not be seen by the public before that user has a chance to amend or remove it. While scraping is one way to collect a user’s tweets, members of the public could follow that user and view his tweets in their feeds, or use the X platform’s search tool (as SNScrape did) and view his tweets that way.

X Corp.’s assertion that the scraping alleged here violates a user’s “safety and security” in his publicly disseminated tweets is therefore a non-starter.

As for a harm in ExTwitter having to then “protect” its users, the judge also laughs that one off. He notes that scraping is a common part of how the web works, even if some websites don’t like it:

The problem with this argument is that it is at odds with what X Corp. has alleged.

Although social media platforms do not like it, scraping, for various ends, is commonplace. See, e.g., ACLU Br. at 7 (“Researchers and Journalists Use Scraping to Enable Speech in the Public Interest and Hold Power to Account.”); see also id. at 8–9 (collecting sources); Andrew Sellars, “Twenty Years of Web Scraping and the Computer Fraud and Abuse Act,” 24 B.U. J. Sci. & Tech. L 372, 375 (2018) (“Web scraping has proliferated beneath the shadow of the [CFAA].”); hiQ 2022 Circuit opinion, 31 F.4th at 1202 (“HiQ points out that data scraping is a common method of gathering information, used by search engines, academic researchers, and many others. According to hiQ, letting established entities that already have accumulated large user data sets decide who can scrape that data from otherwise public websites gives those entities outsized control over how such data may be put to use . . . the public interest favors hiQ’s position.”); see also id. at 1186 (“LinkedIn blocks approximately 95 million automated attempts to scrape data every day”).

Furthermore, while the judge notes that, of course, there can be some cases where scraping could create harms for a site, this case is not an example of that. It was just doing a basic search of publicly available info:

This is not such a case. Here, CCDH is alleged to have used Twitter’s own search tool to collect 9,615 public tweets from ten Twitter users, see FAC ¶ 77; Toxic Twitter at 17, and then to have announced that it did so in a public report, see id. Assuming for present purposes that this conduct amounts to the “scraping” barred by the ToS,23 the extent of CCDH’s scraping was not a mystery. As CCDH asked at the motion hearing, “What CCDH did and the specific tweets that it gathered, what tool it used, how it used that tool and what the results were are documented explicitly in its public report. So what is it that they’re investigating?” Tr. of 2/29/24 Hearing at 22: 3–7. Nor was this the kind of large-scale, commercial scraping—as in hiQ, as alleged in Bright Data—that could conceivably harm the X platform or overburden its servers. It is not plausible that this small-scale, non-commercial scraping would prompt X Corp. to divert “dozens, if not over a hundred personnel hours across disciplines,” see Tr. of 2/29/24 Hearing at 8:7–11, of resources toward the repair of X Corp.’s systems. Nor would such expenditures have been foreseeable to CCDH in 2019. In 2019, if CCDH had thought about the no-scraping provision in the ToS at all, it would have expected X Corp. to incur damages only in response to breaches of that provision that could actually harm the X platform. It would not have expected X Corp. to incur damages in connection with a technical breach of that provision that involved the use of Twitter’s search tool to look at ten users and 9,615 public tweets.

Furthermore, the judge notes that if ExTwitter had to spend time and money to “protect” the site here, it wouldn’t be because of any costs from the scraping, but rather from CCDH’s (again, protected) speech.

And thus the anti-SLAPP motion wins, the case is dismissed, and Elon can’t file an amended complaint. Indeed, the judge calls out the silliness of ExTwitter claiming that CCDH was seeking to suppress speech, by noting that it’s quite obvious the opposite is going on here:

The Court notes, too, that X Corp.’s motivation in bringing this case is evident. X Corp. has brought this case in order to punish CCDH for CCDH publications that criticized X Corp.—and perhaps in order to dissuade others who might wish to engage in such criticism. Although X Corp. accuses CCDH of trying “to censor viewpoints that CCDH disagrees with,” FAC ¶ 20, it is X Corp. that demands “at least tens of millions of dollars” in damages—presumably enough to torpedo the operations of a small nonprofit—because of the views expressed in the nonprofit’s publications…. If CCDH’s publications were defamatory, that would be one thing, but X Corp. has carefully avoided saying that they are.

Given these circumstances, the Court is concerned that X Corp.’s desire to amend its breach of contract claim has a dilatory motive—forcing CCDH to spend more time and money defending itself before it can hope to get out from under this potentially ruinous litigation. See PPP Br. at 2 (“Without early dismissal, the free speech interests that the California legislature sought to protect will vanish in piles of discovery motions.”). As CCDH argued at the motion hearing, the anti-SLAPP “statute recognizes that very often the litigation itself is the punishment.” Tr. of 2/29/24 Hearing at 33:12–34:5. It would be wrong to allow X Corp. to amend again when the damages it now alleges, and the damages it would like to allege, are so problematic, and when X Corp.’s motivation is so clear.

Accordingly, the Court STRIKES the breach of contract claim and will not allow X Corp. to add the proposed new allegations as to that claim.

The judge also drops a hammer on the silly CFAA claims. First, the court notes that, as per the Supreme Court’s Van Buren ruling, if you’re arguing losses from hacking, the loss has to come from “technical harms” associated with the unauthorized access. ExTwitter claims that the “loss” was from the investigation it had to do to stop such violations, but the judge isn’t buying it. (For what it’s worth, Riana Pfefferkorn notes that the issue of harms having to be “technological harms” came from dicta in the Supreme Court, not a holding, but it appears that courts are treating it as a holding…)

When the lawsuit was filed, we called out a big part of the problem, which was that a separate entity, BrandWatch, was who gave CCDH access to its tools to do research on Twitter. So if there were any complaint here by ExTwitter, it might (weakly!) be against BrandWatch for giving CCDH access. But they can’t possibly argue that CCDH violated the CFAA.

X Corp.’s losses in connection with “attempting to conduct internal investigations in efforts to ascertain the nature and scope of CCDH’s unauthorized access to the data,” see FAC ¶ 87, are not technological in nature. The data that CCDH accessed does not belong to X Corp., see Kaplan Decl. Ex. A at 13 (providing that users own their content and grant X Corp. “a worldwide, non-exclusive, royalty-free license”), and there is no allegation that it was corrupted, changed, or deleted. Moreover, the servers that CCDH accessed are not even X Corp.’s servers. X Corp. asserted at the motion hearing that its servers “stream data to Brandwatch servers in response to queries from a logged in user” and so “you cannot say fairly it’s not our systems.” Tr. of 2/29/24 Hearing at 28:16–20. But that is not what the complaint alleges. The complaint alleges that “X Corp. provided non-public data to Brandwatch” and “[t]hat data was then stored on a protected computer.” FAC ¶ 83; see also id. ¶ 86 (“the Licensed Materials were stored on servers located in the United States that Brandwatch used for its applications. CCDH and ECF thus knew that, in illegally using ECF’s login credentials and querying the Licensed Materials, CCDH was targeting and gaining unauthorized access to servers used by Brandwatch in the United States.”) (emphasis added); id. ¶ 29 (Twitter would stream its Licensed Materials from its servers, “including in California,” to “servers used by Brandwatch [] located in the United States, which Brandwatch’s applications accessed to enable [its] users with login credentials to analyze the data.”).28 It is therefore hard to see how an investigation by X Corp. into what data CCDH copied from Brandwatch’s servers could amount to “costs caused by harm to computer data, programs, systems, or information services.” See Van Buren, 141 S. Ct. at 1659–60.

The court also laughs off the idea that the cost of attorneys could be seen as “technological harm” under the CFAA. And thus, CFAA claims are dropped.

As we noted in our original post, the other claims were the throw-in claims designed to piggyback on the contract and CFAA claims and to sound scary and drive up the legal fees. The judge sees these for what they are and dismisses them easily.

CCDH’s arguments for dismissing the tort claims are that: (1) the complaint shows that CCDH did not cause a breach; (2) the complaint has failed to plausibly allege a breach; (3) the complaint has failed to plausibly allege CCDH’s knowledge; and (4) the complaint fails to adequately allege damages. MTD&S at 23–26. The Court concludes that CCDH’s arguments about causation and about damages are persuasive, and does not reach its other arguments.

The court also called out that it’s weird (and notable in exposing Musk’s nonsense) that the complaint seeks to hold CCDH liable for Brandwatch allowing CCDH to use its services:

X Corp.’s response is that “the access is the breach.” Opp’n at 30. In other words, Brandwatch agreed to keep the Licensed Materials secure, and by allowing CCDH to access the Licensed Materials, Brandwatch necessarily—and simultaneously—breached its agreement to keep the Licensed Materials secure. The Court rejects that tortured reasoning. Any failure by Brandwatch to secure the Licensed Materials was a precondition to CCDH’s access. In addition, to the extent that X Corp. maintains that CCDH need not have done anything to impact Brandwatch’s behavior, then it is seeking to hold CCDH liable for breaching a contract to which it was not a party. That does not work either.

The complaint also included some utter nonsense that the judge isn’t buying. Some Senator had said that CCDH was a “foreign dark money group,” and thus ExTwitter said there might be further claims against unnamed “John Does,” but the judge points out that this conspiracy theory isn’t backed up by anything legitimate:

CCDH’s last argument is that X Corp. fails to state a claim against the Doe defendants. MTD&S at 26. X Corp. alleges that “one [unnamed] United States senator referred to CCDH as ‘[a] foreign dark money group,’” and that “[o]ther articles have claimed that CCDH is, in part, funded and supported by foreign organizations and entities whose directors, trustees, and other decision-makers are affiliated with legacy media organizations.” FAC ¶ 62. It further alleges that “CCDH is acting . . . at the behest of and in concert with funders, supporters, and other entities.” Id. ¶ 63. These allegations are vague and conclusory, and do not state a plausible claim against the Doe defendants. See Iqbal, 556 U.S. at 678 (claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).

So, case dismissed. Of course, Elon might appeal to the 9th Circuit and just run up the costs of what he’ll eventually need to pay CCDH’s lawyers just to further attempt to bully and suppress the speech of critics (and to chill speech of other critics).

And, yeah, that might happen. All from the “free speech absolutist.”

On the whole, though, this is a good, clear ruling that really highlights (1) the bullshit vexatious, censorial nature of the SLAPP suit from Elon and (2) the value and importance of a strong anti-SLAPP law like California’s.

Filed Under: anti-slapp, breach of contract, california, cfaa, charles breyer, chilling effects, elon musk, free speech, slapp
Companies: brandwatch, ccdh, twitter, x

Millionth Time Is The Charm: Donald Trump Again Sues A News Agency Over Factual Reporting

from the shocker:-terrible-human-being-also-terrible-litigant dept

“Open up the libel laws!” the man who can’t win consecutive elections (much less a defamation lawsuit) once proclaimed. The Republican Party (or at least its voting bloc) appears willing to give a man who’s enjoyed nothing but unearned opportunities throughout his professional and governmental career yet another shot in 2024. But he’s not going to find similar support in the courts, which have rejected pretty much every suit the sorest loser in the world has filed over the course of his lifetime.

This latest effort will fare no better. As C.J. Ciaramella explains at Reason, it’s highly unlikely any court will decide the line between defamation and mostly factual somehow runs right through the narrow definition of one state’s legal definition of the word “rape.”

I_n a complaint filed yesterday in the U.S. District Court for the Southern District of Florida, Trump alleges that Stephanopoulos defamed him during a March 10 interview with Rep. Nancy Mace (R–S.C.) in which the host repeatedly said that a jury found Trump liable for rape in the lawsuits brought against him by E. Jean Carroll._

[…]

Trump’s complaint is correct that, as a technical matter, he was found civilly liable for sexual assault under New York state law, not rape, because the jury did not find that he penetrated Carrol with his penis.

That’s the argument Trump is making. He was defamed not because it was alleged he sexually assaulted someone. He was defamed because the sexual assault (allegations upheld by a jury that also awarded Carroll $5 million last year) wasn’t legally “rape” under New York law.

Trump’s decision to push this argument shows he’s incapable of learning from past mistakes. The judge presiding over Carroll’s lawsuit already made it clear the sustained allegations described violations most people would describe as “rape” even if they did not include penile penetration.

“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,” Kaplan wrote. “Indeed, as the evidence at trial […] makes clear, the jury found that Mr. Trump in fact did exactly that.”

That is, the jury found it credible that Trump had penetrated Carroll’s vagina without her consent, although it was more likely with his fingers (a method Trump espouses) than with his penis. Rape in common sense of the word, even if it wouldn’t result in the specific criminal charge in the state of New York.

But Trump is as stubborn as he is stupid, and so he’s filed another lawsuit [PDF] he’s destined to lose. This one’s filed in Florida, which is where Trump often prefers to do his judicial business. Choice of venue aside, this lawsuit has “LOSER” written all over it. It opens with Trump reminding the court that he was once president of the United States and has built up enough steam to become the second coming of Grover Cleveland.

This boilerplate tho:

Plaintiff President Donald J. Trump (“Plaintiff”) is a private citizen of the United States, a resident of the state of Florida, the 45th President of the United States of America, and the leading candidate in the 2024 Presidential Election.

At least that means there won’t be any arguments over whether or not Donald Trump is a “public figure” for the purposes of this litigation. It’s also unsurprising that Trump refers to himself as a “private citizen” when filing lawsuits, but as “president” when defending himself against lawsuits and/or criminal charges.

The self-aggrandizement is followed by several paragraphs of Trump trying to re-litigate the E. Jean Carroll case — one that has gone down in the history books as a Trump loss, and one that he continues to compound by his unwillingness to stop defaming (or stop suing!) the victor of the civil case.

At the heart of this case are the ten times George Stephanopoulos referred to Trump’s sexual assault (under New York law!) as “rape” while interviewing Congressperson Nancy Mace. That’s it. That’s the whole thing. It goes on for several more pages, but that’s the entirety of the argument: that a jury found him liable for defamation and sexual assault, but not for the crime of “rape” as described very particularly by the New York state statute.

That’s not going to matter when this case gets underway. The standard is whether or not the statements are factual. Most people would consider forceful penetration of sexual orifices “rape,” no matter what was used. On top of that, Stephanopoulos was offering commentary and engaging in an interview of a Congressional Trump supporter. He was not directly reporting on the outcome of the Carroll case.

What it all comes down to is whether “rape” is defamatory when it’s used to describe something narrowly defined as “sexual assault” by a single state’s laws. And that’s just not going to be enough to rack up a win for one of the nation’s most inept serial litigants. Trump should just accept the fact that people believe he’s a rapist, even if a jury did not explicitly arrive at the conclusion. His version isn’t any better: all he’s really arguing here is that he should only be referred to as someone found liable for sexual assault. Is that really so much better it’s worth spending thousands or millions of dollars on?

Filed Under: defamation, donald trump, e. jean carroll, florida, george stephanopoulos, nancy mace, rape, sexual assault, slapp
Companies: abc

Judge Appears Correctly Skeptical Of Elon’s SLAPP Suit Against Critic

We have pointed out just how ridiculous Elon Musk’s SLAPP lawsuit against the Center for Countering Digital Hate is, so much that I supported the filing of an amicus brief in support of CCDH, even as I find CCDH’s positions and research to be generally problematic and misleading. But, even if their research methods aren’t great, they still deserve their right to speak out, and they should not face ruinous litigation from a petulant CEO who only pretends to support free speech.

On Thursday, there were oral arguments in the case, and to say they did not go well for Elon would be an understatement. The judge appeared to openly mock the company for its terrible legal arguments. And, most importantly, he (correctly) pointed out how “antithetical” to free speech this lawsuit appeared to be:

“You put that in terms of safety, and I’ve got to tell you, I guess you can use that word, but I can’t think of anything basically more antithetical to the First Amendment than this process of silencing people from publicly disseminated information once it’s been published,” Breyer said.

“You’re trying to shoehorn this theory by using these words into a viable breach of contract claim,” the judge added.

This was exactly the point that was raised in the amicus brief (brilliantly put together by Harvard’s Cyberlaw clinic). That the claims of “breach of contract” were a nonsense attempt to stifle speech, and hoping that by not including a defamation claim it would somehow avoid First Amendment scrutiny. The judge, Charles Breyer, seemed to have figured out ExTwitter’s sneaky plan pretty easily.

Near the end of the hearing, the judge noted that if something is proven to be true a defamation lawsuit falls apart. Why, he said, didn’t Musk’s X bring a defamation suit if the company believes X’s reputation has been harmed?

“You could’ve brought a defamation case, you didn’t bring a defamation case,” Breyer said. “And that’s significant.”

Yeah, because everyone knows that there was no actual defamation.

The judge appeared also to see through the nonsense of the breach of contract claims directly. ExTwitter claims that CCDH should be liable for the loss of ad revenue of advertisers leaving the platform in response to CCDH’s research report. But, the judge pointed out how tenuous this was, to the point of calling the argument “one of the most vapid extensions of law I’ve ever heard.”

But in order to make this case, X had to show the group knew the financial loss was “foreseeable” when it started its account and began abiding by Twitter’s terms of service, in 2019, before Musk acquired the site.

X lawyer Hawk argued that the platform’s terms of service state that the rules for the site could change at any time, including that suspended users whom the group says spread hate speech could be reinstated.

And so, Hawk said, if changes to the rules were foreseeable, then the financial loss from its reports on users spreading hate should have also been foreseeable.

This logic confused and frustrated the judge.

“That, of course, reduces foreseeability to one of the most vapid extensions of law I’ve ever heard,” Breyer said.

There are times, in a courtroom, where you shouldn’t read very much into things a judge says. And then there are times where it’s pretty clear the judge understands just how how wrong one side is. This is one of the latter cases.

According to a friend who attended the hearing (virtually, since it was on Zoom), these quotes don’t even get to how bad the hearing was for Elon. Apparently, at one point the judge asked ExTwitter’s lawyer “are you serious?” which is never a good thing. ExTwitter’s lawyer also had to walk back a few arguments in court, including when the company tried to apply the wrong terms of service to a separate non-profit they had tried to drag into the case. And, finally, towards the end of the hearing, apparently ExTwitter’s lawyer tried to claim that they had pled actual malice (which, you know, is kind of important), only to have CCDH’s lawyer point out that they had not. CCDH is right. You can look at the amended complaint yourself.

None of that is likely to go over well with this judge.

Filed Under: anti-slapp, breach of contract, defamation, elon musk, slapp
Companies: ccdh, twitter, x

Would You Trust A Cryptocurrency Whose Operator Sues Journalists For Reporting On Lawsuits Calling You A Scam?

from the slapp-silly dept

In the fall of 2022 an apparent investor in a cryptocurrency called “Bitcoin Latinum” sued the guy behind the currency, Donald Basile. You can see the whole case here. There has been a bunch of back and forth on the docket, but it appears the remaining parties at some point went to binding arbitration.

Soon after the lawsuit was filed, Cyrus Farivar, one of the best tech reporters around, working for Forbes, wrote a pretty straightforward article about the lawsuit, entitled, “A Cryptocurrency Named After The Fictional Money In Star Trek Is ‘Worthless’ And ‘A Scam,’ New Lawsuit Alleges.”

The article gives a pretty standard summary of what the lawsuit claimed, and also presented the side of the “Latinum” folks including a quote from the company. Given that the word “Latinum” apparently comes from a currency in Star Trek, and one of the claims in that original lawsuit, by Arshad Assofi, was that Basile had said “Bitcoin Latinum was a project that received $20 million from the producers of Star Trek,” it was only natural for Farivar to ask Paramount about this and get this response:

“No one is familiar with this claim or with this ‘Bitcoin Latinum,’” emailed Jennifer Verti, a Paramount spokesperson. “This is not something that Star Trek is officially involved in at all.”

In the article, Farivar also quoted SEC boss Gary Gensler saying that the crypto world is “rife with fraud, scams, and abuse.” That quote is also straight from Assofi’s complaint. Farivar also made the very factual statement: “The world of cryptocurrency is awash with scammers and companies that don’t have actual products.”

For whatever reason, the corporate entity behind this Latinum thing, GIBF GP, Inc., waited a year and a quarter then last week decided to sue Farivar in the Delaware Court of Chancery, in a ridiculously silly SLAPP suit that only serves to drive that much more scrutiny on Bitcoin Latinum. And, really, it should make everyone question whether or not you’d trust a cryptocurrency that is suing a reporter who merely quoted the lawsuit against them.

In a separate move, it appears the same company has also sued Poker.org and its reporter Haley Hintze over an article she wrote almost exactly two years ago about a different lawsuit that was filed over Latinum. Except, bizarrely, the complaint against Hintze seems to claim that her article was about the Assofi lawsuit, when… it’s not. It’s about a different lawsuit. Also, the Hintze article appears to have been written nine months before Assofi filed his lawsuit.

I’m pretty confused by all this. The lawsuit admits that Hintze’s article was written in February of 2022, and then… that Assofi filed his lawsuit in November:

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Time? How does it work. Also, again, the Hintze article doesn’t mention Assofi at all, because he hadn’t yet filed his lawsuit.

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It appears that Latinum’s lawyer actually meant to sue over a different Poker.org article, that was published in November about the Assofi lawsuit, but repeatedly claims that the article was published on February 5, 2022, rather than the actual publication date of the article she meant, which was November 21, 2022. Also, Latinum’s lawyer included the February 5th article as the exhibit, rather than the November 21st article. Such attention to detail to talk about the wrong article and include the wrong article as an exhibit. Top notch lawyering.

And, like, the date matters. The statute of limitations for defamation in Delaware, where the cases were filed, is two years. Which means that the original Hintze article, published on February 5th 2022, was already passed the statute of limitations when Latinum sued, claiming to be suing over that article, on February 7th, 2024. Great lawyering work. Just amazing. (For what it’s worth the profile of the lawyer who filed both of these terrible cases claims her expertise is in “estate planning and probate,” which is…. not defamation.)

Speaking of defamation, according to the excellent folks at Chancery Daily, for the most part, libel and defamation are not within the Court of Chancery’s jurisdiction. There are a few very narrow exceptions, that do not appear to have been met here.

Back to Farivar’s case. It’s a clear SLAPP case. Again, Farivar was writing about a filed lawsuit, quoting what that lawsuit said, and making a general truthful statement about the prevalence of scams in the cryptocurrency world. The complaint also says that it’s defamatory because Farivar refers to Latinum as a “fictional” currency in the Star Trek universe. Which… it is?

Notably, Latinum sued Farivar individually, and not his publisher, Forbes, which is also common in many SLAPP lawsuits, where plaintiffs looking to silence reporters will sue the reporters individually rather than the publishers, perhaps hoping that the publisher won’t be able to cover the cost of fighting the lawsuit. It’s also weird because the remedies sought in the lawsuit include demanding that Farivar “remove” the article, which he might not even be able to do as an employee of Forbes.

There are a bunch of other potential problems with the lawsuit. It fails to even mention actual malice, let alone plead how Farivar published his article with actual malice. It tries to pretend that the Delaware jurisdiction is proper based on a very barebones claim that Farivar “regularly does or solicits business, engages in other persistent courses of conduct in the State….” That’s not how that works.

The complaint also admits that both Latinum’s founder, Basile, who is listed as a plaintiff, and Farivar are based in California, which is a good reason to point out that California (with is strong anti-SLAPP laws) are the proper venue for this suit. There’s also an oddity of stating that the allegedly defamatory comments resulted in “damages to their reputation and trade, in an amount well in excess of $75,000.00,” which is… the number you would need to claim damages for getting the case into federal court under diversity jurisdiction, but is irrelevant here in the Court of Chancery, which we already noted almost certainly does not have jurisdiction for a wide variety of reasons.

And, I almost forgot to mention that the fair report privilege exists, and protects journalists from liability for reporting on public documents, such as a lawsuit. While not all states recognize fair reporting, Delaware absolutely does.

I’m sure Basile is unhappy with the Assofi lawsuit, and with it, the news coverage. But that’s how this works. If you get sued, people will write about the lawsuit. It’s not defamatory to do so, even if you don’t like how they covered it. But, also, if you then go and sue reporters for covering your lawsuit with sloppily written complaints, it’s only going to drive that much more scrutiny of whatever it is you’re trying to sell.

There’s always a point where you can stop digging, and if Basile wants to stop digging, it would be wise to dismiss both of these lawsuits, apologize to the reporters, and just focus on whatever thing he wants to build. If he disagrees with Assofi’s claims, he can just say that. He doesn’t need to sue reporters.

Anyway, this is yet another reminder that we need a federal anti-SLAPP law, along with strong anti-SLAPP laws in all 50 states.

Filed Under: anti-slapp, bitcoin latinum, california, cyrus farivar, defamation, delaware, delaware court of chancery, haley hintze, slapp
Companies: forbes, gibf gp, latinum, poker.org

Clingy Guy Who Filed A SLAPP Suit Against Women He Dated Has Lawsuit Thrown Out… Immediately Refiles (Oh, And Also Gets Convicted For Tax Fraud)

from the don't-be-like-this-guy dept

Nikko D’Ambrosio has had a pretty rough week, but apparently that’s not going to stop him from texting the court from a new number. You may recall this dude bro from the Chicago area, for his decision to sue basically everyone he could think of after a few women he dated wrote about their experiences with him on the Facebook group “Are We Dating the Same Guy.” We don’t need to rehash just how stupid the lawsuit was, beyond the fact that it included tons of defendants who either appeared to have nothing to do with the case, or who were clearly immune under Section 230 (which wasn’t even mentioned in the complaint).

People in a toxic subreddit who were cheering on the case (including at least a few commenters who appeared to be closely involved with it) kept insisting that the case would be a winner, even if all it did was make the women being sued spend a lot of money and be afraid to criticize dudes online again. Of course, that assumed a few things. Like that the case wouldn’t get immediately thrown out.

Which it did.

Lawyer Ken White, who described this as being one of the most incompetent complaints he’d seen in a while, had predicted that whichever judge got the case was likely to toss it out before any of the defendants needed to do literally anything, because the lawyers (who seem ridiculously out of their depth) messed up the jurisdiction question, by claiming diversity jurisdiction (to get it into federal court, despite being about state laws) but not fulfilling the requirements for diversity (in multiple ways).

The biggest problem (but again, one of many) is that you only get diversity jurisdiction if all the defendants come from a different state than the plaintiff. But in the very complaint, they admit that at least a few defendants are also in Illinois.

And it turns out Ken was exactly right. The case has been terminated before anyone had to do anything.

Plaintiff asserts jurisdiction is proper pursuant to 28 U.S.C. § 1332 for diversity jurisdiction. In his complaint, the Plaintiff alleges he resides in the territorial jurisdiction of the District Court, which is Illinois. However, several of the named Defendants are also Illinois residents. The Court understands “[r]esidency does not necessarily equate to domicile.” Grandinetti v. Uber Techs., Inc., No. 19 C 05731, 2020 WL 4437806, at *4 (N.D. Ill. Aug. 1, 2020) (Chang, J.). However, the Plaintiff does not assert any other basis for his or the Defendants’ domicile besides their residency; therefore, the Court equates the two here….

… Because it is well established that traditional diversity jurisdiction is destroyed when a plaintiff’s and a single defendant’s domicile is the same state, jurisdiction is improper…. Because the Court does not have subject matter jurisdiction over this case, the Court dismisses this case.

But apparently D’Ambrosio is the kind of guy who won’t take no for an answer… even from judges. He’s apparently the kind of guy that when his number gets blocked or his case gets thrown out, he’ll just text from a different number or file a brand new case.

Almost immediately, D’Ambrosio’s very, very, very bad lawyers filed a brand new lawsuit against the same defendants. And how do they get around the diversity issue? By simply removing the admission that some of the defendants live in Illinois, and instead saying “whose citizenship and residence State is unknown at this time.”

Here were some of the defendants in the first case:

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And here they are in the second lawsuit, which now includes more other details, but magically forgot where they live. Shocking.

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That sure seems like sanctionable behavior by the lawyers. The rest of the new lawsuit is still horrifically bad and confused.

The lawyers try (and I say that very, very, very loosely) to fix some of the other defects of the original lawsuit, but they certainly come off as very clueless lawyers and way out of their depth with basically no experience or knowledge in filing these types of lawsuits, reading all the Reddit comments mocking them, and doing a slipshod job of trying to fix the defects while being too ignorant to understand why those defects aren’t the kind of thing you can just do a rewrite to fix.

For example, this time, they actually try (badly) to plead the factors to qualify as a class action, which they try to break down into “subclasses,” including a defamation subclass. Again, class action defamation is not actually a thing, because defamation requires specific statements made by specific people about specific people, and doesn’t fit as a class action.

They also have finally discovered Section 230, which pretty obviously bars the claims against nearly all defendants. But, just because the lawyers have discovered Section 230, it does not mean they understand it. Because they don’t. They claim it’s an open question whether or not defendants are “speakers” or “publishers” under Section 230, and they think there is some action that can be taken that “breaches Defendants immunity as an internet service provider under 47 U.S.C. 230.” That’s… not how it works.

Hilariously, in the actual defamation claim, they then admit that “defendants are ‘speakers’ or ‘publishers’ within the meaning of 47 U.S.C. 230…” which seems like the lawyers admitting the case is barred by 230, since the whole point of 230 is that you can’t treat third parties as speakers or publishers. And, of course, they still don’t specify what actual statements are defamatory, but rather say that those statements “imply that Plaintiff is dishonest, immoral and/or untrustworthy….” which, um, are all obviously protected statements of opinion.

There’s also a very weak attempt to get around 230 by suggesting that the platform defendants like Meta, GoFundMe, and Patreon somehow “created” the content in question (which they clearly did not). They also say that the “IP” claims they’re making are not barred by Section 230 but (and this is kind of hilarious) they don’t actually make any IP claims.

There’s more, but, no matter what, this is still a very poorly drafted complaint.

Either way, throughout the complaint, the lawyers claim that the statements made about D’Ambrosio really damage his reputation:

Defendants statements have damaged and continue to damage Plaintiff’s reputation in the general public, in their profession, in their church communities, in their neighborhood, and with friends, relatives, and neighbors.

You know what else might damage Plaintiff’s reputation in the general public, in their profession, in their church communities, in their neighborhood, and with friends, relatives, and neighbors? Being convicted of tax fraud.

Because that also happened to Nikko D’Ambrosio a week ago.

Chicago-area native Nikko D’Ambrosio made a national media splash earlier this month when he filed a lawsuit against dozens of women who allegedly bad-mouthed him on a tell-all Facebook dating page, describing him as “clingy,” a ghoster and a show-off with money.

Turns out D’Ambrosio’s dating reviews were the least of his worries.

On Friday, D’Ambrosio, 32, of Des Plaines, was convicted in the same federal courthouse where his lawsuit is pending of tax fraud counts alleging he vastly underreported income he’d made distributing “sweepstakes” gaming machines for a company with ties to Chicago mob figures.

So, um, when you’ve just been convicted of tax fraud and your defense consisted of claiming to be “terrible at math,” it’s not clear you have much of a reputation that can be damaged. His lawyer literally called him stupid:

In his closing argument Friday, Grohman told the jury the case was not about greed, “It’s about stupidity.”

I’m really not sure that some woman saying you were “very clingy, very fast” is going to hurt your reputation any more than you’ve already hurt it yourself. And, while the tax fraud situation is probably the bigger deal, refiling the same lawsuit after it was dismissed isn’t going to help his reputation very much either.

Filed Under: anti-slapp, chicago, class action, daniel nikloic, defamation, diversity, doxxing, marc trent, nikko d'ambrosio, slapp, tax fraud
Companies: awdtsg, facebook, gofundme, meta, patreon, trent law firm