slapp suit – Techdirt (original) (raw)

Elon Musk’s Ridiculous SLAPP Suit Gets Green Light from Partisan Judge

from the free-speech-attack dept

When it comes to Judge Reed O’Connor, the only thing more predictable than his partisan rulings is the Supreme Court overturning them. But that hasn’t stopped him from giving the green light to Elon Musk’s ridiculous SLAPP suit against Media Matters. O’Connor’s problematic decision basically means that Elon has won. Even if the eventual case goes against Elon and rightly points out that Media Matters did nothing wrong, the cost of the case and the wider impact on speech has been a disaster.

When Elon sued Media Matters for publishing an article that everyone (including Elon) admits is true, people pointed out the many reasons why the case was terrible and should get tossed out. But first among them was the question of venue.

The case was filed in the Texas courtroom of Judge Reed O’Connor, even though none of the parties had any clear connection to Texas. The plaintiff was X Corp, a Nevada entity that (at the time) was headquartered in California (it has since announced it is closing down its headquarters there, but still), suing Media Matters (based in Washington DC), its CEO Angelo Carusone (based in DC) and one of its writers, Eric Hananoki (based in Maryland).

There is no connection to Texas other than that Elon Musk (who was not a direct party to the case) has other companies there. But Judge O’Connor just recently ruled in this very same case that you can’t assume that just because Elon controls both Tesla and ExTwitter that the companies are connected. So, you would think that this would further extend to saying Elon’s presence in Texas is meaningless.

Just last week, another judge, Amit Mehta in Washington DC, called out that a related investigation by Missouri AG Andrew Bailey (kicked off in response to a request from Elon Musk to pile on against Media Matters) was clearly and obviously an unconstitutional attack on Media Matters’ protected speech.

But Judge O’Connor marches to the beat of his own partisan piper. Recently, Joe Patrice at AboveTheLaw gave a short summary of Judge O’Connor’s history of extremist partisan decisions that even this Supreme Court felt the need to overturn:

Judge Reed O’Connor is, by all accounts, a joke. Elevated to the federal bench by the grace of the Federalist Society vetting machine, O’Connor has spent his tenure striking down Obamacare — and getting overturned by the Supreme Court — striking down other parts of Obamacare — and getting overturned by the Supreme Court — striking down the Indian Child Welfare Act — and getting overturned by the Supreme Court — inventing a constitutional right for crybaby anti-vaxxers — and, well, you’re not going to believe this, but he got overturned by the Supreme Court on that too.

While it wasn’t a huge surprise that O’Connor refused to recuse himself from the case over his Tesla shares, it’s still been bizarre to watch him act as if there’s a credible complaint here. First, O’Connor allowed discovery to go ahead before the motion to dismiss was decided (which isn’t entirely uncommon but in a case like this was still aggressive). And then last week he rejected the motion to dismiss entirely.

Media Matters had pointed out the very clear flaws in the claimed Texas jurisdiction and venue. But O’Connor comes up with a nonsensical excuse that most other judges would have laughed at: that because Hananoki’s articles mentioned Oracle’s ads, and Oracle is (temporarily) headquartered in Texas, there is jurisdiction over Hananoki.

Notably, Oracle only moved its headquarters to Texas during the pandemic and recently announced it was moving them again to Nashville. It’s also a meaningless point, given that Oracle allows employees to be remote, its founder (Larry Ellison) works mostly from Hawaii, its CEO, Safra Catz, lives in Florida, and many other execs remain at its original headquarters in California. The Texas HQ has always been more of a paper move than anything real.

But it’s enough for Judge O’Connor, even though Oracle is not a party to the action:

The body of the Hananoki articles targeted, among others, Oracle, a Texas-based company that placed ads on Plaintiff’s platform. Indeed, the Hananoki Original article included Oracle in the headline.

Judge O’Connor then also points out that this means that “the harm suffered” may have occurred in Texas:

This targeting of the alleged tortious acts at the headquarters of Texas based companies is sufficient to establish specific jurisdiction in Texas. See Johnson v. TheHuffingtonPost.com, Inc., 21 F.4th 314, 318 (5th Cir. 2021) (“The key question, under Calder, is whether the forum state was ‘the focal point of the [alleged libel] and of the harm suffered.’” (quoting Calder v. Jones, 465 U.S. 783, 789 (1984))). As just described and as set out below, each Defendant engaged in the alleged tortious acts which targeted harm in, among other places, Texas.

But… that’s wrong? I mean, just fundamentally. The harm alleged in the complaint is not to any of the “Texas-based companies.” Rather it’s X Corp., which, at the time, was not a Texas-based company in any sense. Doesn’t matter according to O’Connor.

Accordingly, the evidence taken as true shows Hananoki targeted his conduct at Texas.Because Defendant Hananoki “purposefully directed [his] activities” at Texas, and Plaintiff’s claims against Hananoki are “deriving from, or [are] connected with” those activities, specific jurisdiction exists

I’ve seen plenty of weird jurisdiction and venue cases in my two and a half decades covering the internet (internet jurisdiction questions can be crazy…) but I’ve never seen a justification quite like this one.

Judge O’Connor says that Media Matters itself as an entity would avoid jurisdiction in Texas if the site was “passive” but if it’s “interactive” then it’s fine. I’ve never heard this distinction before, and it makes no sense.

Defendant’s affidavit describes the website as interactive. Since the website is interactive, the traditional jurisdictional rules apply. Johnson, 21 F.4th at 319 (website is interactive if it solicits information, makes purchases, and click on ads.) These rules seek to determine whether Plaintiff’s suit results from Media Matters purposefully targeting Texas. Id. For the reasons stated above, Media Matters targeted Texas…

He then quotes another case to say that “a defendant who targets a Texas company with tortious activity has fair warning that it may be sued there”:

(“if you are going to pick a fight in Texas, it is reasonable to expect that it be settled there.”)

Except that… no one picked a fight in Texas. This is a made-up thing. Again, literally none of the parties were based in Texas.

Getting past the jurisdiction questions first, there’s still the issue of venue (i.e., is this the right place to file this lawsuit). And the obvious answer again here is “absolutely fucking not.” But, this is Judge O’Connor, so of course he thinks it makes sense.

Plaintiff sufficiently alleges a substantial part of the events occurred within the Northern District of Texas. Plaintiff alleges that Defendants waged a campaign against X’s blue-chip advertisers. It alleged AT&T, headquartered in the Northern District, was one of its blue-chip advertisers targeted by Defendants. The gravamen of Plaintiff’s claims are that Defendants intended to negatively impact Plaintiff’s blue-chip clients, including a client based in this district. This sufficiently establishes that a substantial part of the events at issue in this lawsuit occurred here.

Judge O’Connor rushes through the rest of the motion to dismiss. On the issue of no breach of contract because there was no such contractual breach, Judge O’Connor says that in Texas you can have tortious interference in merely getting someone to end a contract even without a breach (which is quite incredible).

Judge O’Connor does the judicial equivalent of a “who can really say” shrug regarding the argument that any harm of ExTwitter allowing ads next to neo-Nazis on ExTwitter came from ExTwitter, not Media Matters accurately pointing out the ads next to neo-Nazis:

Finally, Plaintiff plausibly alleges that Defendants proximately caused their harm. Proximate cause requires proof of both cause-in-fact and foreseeability. Defendants present a compelling alternative version of events to Plaintiff’s. However, the Court will not “choose among competing inferences” at this stage. … Accordingly, Plaintiff’s Amended Complaint alleges sufficient facts to state a claim of tortious interference with contract.

Media Matters had (correctly) pointed out that the claim of business disparagement requires there to be “false and disparaging information published” and that it has to have been done with actual malice (a pretty high standard, which includes that Media Matters knew or highly suspected the material was false at the time).

Incredibly, Judge O’Connor apparently writes the “false” part out of this requirement altogether, saying that disparaging is enough. His analysis of “malice” ignores the actual standard (which is reckless disregard for the truth), and says (incorrectly) that the frequency and tenor of the statements supports malice (which is not the standard, according to the Supreme Court, which seems to need to keep correcting O’Connor).

First, construing the facts pled by Plaintiff in the light most favorable to it, that Defendants manipulated and intended to deceive Plaintiff’s advertisers is sufficient to support the first element. Plaintiff alleges Defendants acted with malice and without privilege by asserting Defendants’ reporting was false and the “frequency and tenor of Media Matters’ statements disparaging X and the safety of advertising on the X platform” supports an inference of actual malice. And finally, Plaintiff has pled a plausible claim regarding special damages in that Defendants tortious acts undermined “advertisers’ faith in X Corp.’s abilities to monitor and curate content.

Almost every similar case I can think of dismisses on the actual malice point by pointing out that merely claiming “actual malice” does not make it actual malice. You have to show the reckless disregard for the truth. But here, O’Connor not only ignores the fact that ExTwitter admits in its complaint that nothing is false, he ignores the requirements of actual malice.

This is pretty stunning.

Unfortunately, this fits with O’Connor’s priors, in which he appears to bend over backwards to come up with excuses to support “his side.” If that means ignoring the Supreme Court standard, so be it. Tragically, all this is going to do is add (massively) to the costs facing Media Matters, as with the discovery order and O’Connor’s fee shifting order about whether or not he needed to recuse over his ownership of Tesla stock.

The non-profit has already laid off a bunch of employees because of the costs of this lawsuit. This decision more or less guarantees an approximately ten-fold increase in costs (after the motion to dismiss is when things get ridiculously expensive).

In other words, even if Media Matters were to win this case down the road, it has already lost. The cost of this kind of lawsuit is punishment, and O’Connor has now made multiple rulings that exact that type of punishment at soul-crushing levels.

And thus, Elon has successfully suppressed Media Matters’ speech. Never, ever, let anyone tell you he supports free speech after engaging in this kind of activity. He is actively abusing the judicial system to suppress speech. And he’s doing it gleefully with support from fans who also, falsely, insist they favor free speech.

Elon isn’t letting up either. Almost before the ink was dry on the order denying the motion to dismiss, ExTwitter filed a motion to compel Media Matters to hand over all sorts of confidential “donor-related documents.” Remember when Republicans absolutely hated any move to force non-profits to disclose donors? Apparently, that only applies to organizations that support Republicans. If you work against them, you should be forced to reveal your donors.

This ruling is, itself, an attack on free speech, in a case brought by someone who falsely claims to be a free speech absolutist. The end result is a travesty and a disaster for speech.

Filed Under: actual malice, breach of contract, business disparagement, elon musk, jurisdiction, reed o'connor, slapp suit, texas, venue
Companies: media matters, oracle, twitter, x

Judge O’Connor Says It’s Crazy To Think Tesla Is Connected To ExTwitter; Forces Media Matters To Pay Elon’s Fees

from the insult-to-injury dept

Apparently, Judge Reed O’Connor doesn’t think that owning a massive amount of Tesla stock constitutes a conflict of interest when it comes to judging Elon Musk’s legal battles.

Last week, we were briefly surprised when infamously partisan Judge Reed O’Connor recused himself from Elon’s nonsense SLAPP suit against GARM and some advertisers.

As we had reported back in June, Media Matters had raised the issue that Judge O’Connor owns a ton of Tesla stock, which arguably is a conflict of interest in ExTwitter’s lawsuit against Media Matters (which Judge O’Connor had refused to dismiss despite its obvious problems). That matter had still been pending last week when O’Connor surprised lots of people (almost certainly including Elon’s lawyers) by recusing himself from the GARM suit.

We had wondered if it was a sign that Judge O’Connor realized how bad it looked for him to hold Tesla stock while repeatedly ruling on behalf of Elon. But, no, it quickly came out that the issue was almost certainly that O’Connor also owned stock in Unilever, one of the firms that Elon was suing in the case.

And then, just days later, it was made clear that Judge O’Connor sees no conflict in owning Tesla stock. He not only rejected Media Matters’ request that Elon be forced to list Tesla as an interested party, but he also made Media Matters pay Elon’s legal fees over this matter.

Judge O’Connor insists it’s just crazy to suggest that Tesla is somehow an interested party:

First, there is no evidence that shows Tesla has a direct financial interest in the outcome of this case. Tesla neither directly nor indirectly holds equity in X, Tesla is not a director or advisor, and it does not participate in the affairs of X. In other words, there is no indication that Tesla has any control over X or any financial ties to X, and Defendants do not claim as much. The question for disclosure is whether Tesla has a “legal or equitable interest” in X. Defendants merely point to news articles that report some blurred lines between Tesla and X that do not rise to the level of financial interest. These articles do not amount to evidence of a financial interest. Tesla is a publicly traded company, with tens of thousands of stockholders, its own board of directors, and external auditors. X is a privately owned company. The mere assertions that Musk owns a constellation of companies, some former Tesla employees now work at X, and that Tesla leased workspace from X do not support a finding that Tesla and X are not separate legal entities or that they share a financial interest.

Later, in response to points about Tesla stock fluctuating in direct connection to Elon doing stupid shit on ExTwitter, O’Connor notes in a footnote: “Musk, who is neither a plaintiff nor defendant in this suit.”

C’mon. None of us were born yesterday.

Elon is totally driving this lawsuit. He was the one who announced that this lawsuit would be coming based on a tweet that he saw. And, obviously, Tesla’s stock is tied to nonsense going on at ExTwitter. He sold a ton of Tesla stock to do the deal, and there are constant reports that he’s almost certainly going to need sell more to keep ExTwitter afloat.

None of this is that big of a surprise, though. Talking to lawyers, I didn’t find one who thought that O’Connor would buy this argument (which is partly why his recusal in the GARM case took me by surprise, before it was revealed that that was due to the Unilever stock).

But just to add absolute insult to injury, O’Connor said that Media Matters, a small non-profit, has to cover ExTwitter’s legal fees over this motion, despite it being owned by the world’s richest man:

Defendants’ Motion to Compel does not have a basis in law. It lacks a reasonable basis in law because the motion is motivated by an effort to force recusal, as opposed to disclosure of unknown information. Compelling disclosure is proper only when a party lacks necessary information. Carr, 2024 WL 1675185, at *1 (compelling disclosure of unknown LLC members); Steel Erectors, 312 F.R.D. at 677 (compelling disclosure of an unknown parent corporation). The information Defendants seek to compel was not unknown to them.

A Motion to Compel Corrected Certificate of Interested Persons when that information was known appears to be unprecedented. Indeed, Defendants did not cite a single case in which a motion to compel a corrected certificate of interested person was brought under this posture, much less one in which the effort was successful under the Local Rule 3.1 “financially interested” standard. Additionally, Defendants’ motion has no basis in fact. Local Rule 3.1’s clear incorporation of “financial interest” requires “legal or equitable interest.” 28 U.S.C. § 455(d)(4). Defendants failed to show facts that X’s alleged connection to Tesla meets this standard. Instead, it appears Defendants seek to force a backdoor recusal through their Motion to Compel. Gamesmanship of this sort is inappropriate and contrary to the rules of the Northern District of Texas.10 Accordingly, Defendants’ Motion is not substantially justified and attorney’s fees are appropriate.

Already, Judge O’Connor’s ridiculous decision to order discovery in this case, rather than properly dismissing it for lack of jurisdiction (among many other reasons), has resulted in layoffs at the non-profit. The impact of this ruling and the fee shifting is likely to do even more damage.

From the beginning, it has been clear that this was a SLAPP suit by Elon, angry that Media Matters (accurately) called out how ads on ExTwitter were appearing next to literal neo-Nazi content. The complaint from ExTwitter admitted that Media Matters accurately reported what it found. The only purpose of this lawsuit is to try to bleed Media Matters dry and to warn away other critics from doing similar reporting.

There’s a reason that most anti-SLAPP laws include fee shifting going the other way (making the wealthy vexatious plaintiffs pay the legal fees of the weaker defendants). Seeing O’Connor basically flip the script here is yet another reason why anti-SLAPP laws are so important.

Having Judge O’Connor let the case move forward to discovery in the first place was already a travesty. Now awarding fee shifting over Media Matters for calling out the potential conflict regarding Tesla’s connection to the case just feels like O’Connor, somewhat gleefully, twisting the knife that Elon plunged into the non-profit.

Filed Under: conflict of interest, elon musk, fee shifting, reed o'connor, slapp suit
Companies: media matters, tesla, twitter, x

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:

• That “ordering a party to provide a forum for someone else’s views implicates the First Amendment” if “the regulated party is engaged in its own expressive activity, which the mandated access would alter or disrupt.” Op. 14.
• That “the First Amendment offers protection when an entity engaging in expressive activity, including compiling and curating others’ speech, is directed to accommodate messages it would prefer to exclude,” and that the challenged laws “target[] those expressive choices” by “forcing the [plaintiffs] to present and promote content on their feeds that they regard as objectionable.” Op. 17, 24.
• That none of the analysis “changes just because a compiler includes most items and excludes just a few,” and that “[i]ndeed, that kind of focused editorial choice packs a peculiarly powerful expressive punch.” Op. 18; see Op. 24 (“That those platforms happily convey the lion’s share of posts submitted to them makes no significant First Amendment difference.”

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

Free Speech Absolutist Elon Musk Very Mad At Disney For Its Speech, Funds At Least One SLAPP Suit

from the please-don't-put-in-my-slapp-suit-that-i-got-mad dept

The “free speech absolutist” is at it again. Despite his claim to be an absolutist, Elon Musk has an uncanny ability to magically keep finding himself involved in lawsuits that are attempts to suppress the free speech rights of others.

And he’s at it again. Earlier this week, actor Gina Carano sued Disney almost exactly three years after Disney announced that she would not be returning to The Mandalorian, after she posted a bunch of utter nonsense on social media about mask wearing, the 2020 election, and the Holocaust (specifically trying to equate “hating someone for their political views” with how the Nazis convinced people to hate Jews).

The lawsuit is… not good. It’s extraordinarily bad. They hired lawyers who appear to be decently experienced… to basically embarrass themselves with an obvious SLAPP suit, designed to punish Disney for its own free speech rights. Like so many performative lawsuits these days, the text of it seems designed to rile up idiots on 4chan and some of the sketchier subreddits, but seems unlikely to convince a judge.

Here’s the thing: Disney has every right to hire and fire who it wants, and they can do so in response to someone’s speech. That’s how free speech works. Sometimes, you say something stupid and there are consequences to your speech, including that others do not want to associate with you or work with you. Yet, Carano seems to argue that somehow no one can criticize her for her speech.

This is a civil action arising from Defendants’ wrongful termination of Carano’s employment in retaliation for Carano’s lawful exercise of her right to speak and express her views. Specifically, Defendants—under the regime of former Disney CEO Bob Chapek—fired Carano because of her posts (“the Posts”) on various social media platforms including X (formerly known as Twitter). Carano composed and published the Posts while she was off-duty and away from the workplace.

In her Posts, Carano expressed her personal political views, opinions, and beliefs. In retaliation for Carano’s exercise of her speech rights, Defendants terminated Carano’s employment and took other retaliatory actions to limit and deny her future employment opportunities, including but not limited to making maliciously false statements about Carano with the intention of damaging her reputation and, thus, her ability to find and retain work.

She also complains that other “similarly situated male co-workers” were not disciplined for their speech. Except, um, that’s not what happened. She points to Carl Weathers, who sadly just passed away. He had posted about Nazis pushing hatred through things like book banning and encouraging hatred.

Except, that was not “the exact same message” nor was it posted in the same context (context matters). Carano’s post was at a time when lots of people were discussing her other posts, in which she was pushing nonsense Fox News talking points, and then tried to equate how Nazis drove hate to people disliking your politics. That is… very different.

She also claims that co-star Pedro Pascal wasn’t disciplined for his tweets, including one that compares Donald Trump to Hitler. And, so fucking what? Disney is allowed to not employ someone for their views and to employ someone else with different views. That’s how the rights of association work.

Bizarrely, the lawsuit is full of totally random tweets from random people, some of whom are annoying internet trolls, but who should have no bearing on any of this.

This is the legal equivalent of: “And another thing: I’m not mad. Don’t put in my SLAPP lawsuit that I got mad at random trolls online.”

The actual claims in the lawsuit are nonsense. Wrongful discharge and sex discrimination. Even though, earlier in the lawsuit, she claims that Lucasfilm “defamed” her “by accusing her of being a ‘bigoted’ actress,” and later that mischaracterizing her social media posts is also defaming her, they don’t bother actually filing a claim for defamation. This is either because her lawyers know that’s not how defamation law actually works, or they realize that putting in defamation claims would make it that much easier for Disney to file an anti-SLAPP motion, leaving Carano on the hook for the Mouse’s legal bills.

Indeed, it seems like the decision to go with the claims they went with are yet another attempt to try to hide from an anti-SLAPP motion by claiming that this has nothing to do with speech, even though the rest of the complaint makes it painfully obvious that it has everything to do with speech. It would not surprise me if Disney files an anti-SLAPP motion and makes a strong case that this is a SLAPP suit, to which Carano’s lawyers will play all innocent and claim that it’s got nothing to do with speech, even though the whole complaint says otherwise.

Now, you might have read this far and wondered why the post started off talking about Elon Musk and his willingness to get involved in suing people over their speech rights. Well, it’s because apparently Elon is funding Carano’s vexatious lawsuit.

Apparently, this is part of what Elon promised last year, when he talked about how he would fund “with no limit” lawsuits for anyone fired for tweets. That apparently still does not apply to all of the former Twitter employees he fired for their tweets. I mean, literally a week ago, Elon had lawyers in court claiming that of course ELON can fire people for their tweets. His lawyer called it “a no-brainer.”

But, now, he’s funding Carano suing Disney, and asking for more people to join in.

Once again, as is all too common these days, the answer seems to be “it’s okay if Elon does it, and it’s the worst thing in the world if it’s done to people Elon likes.” He can fire people for tweets, but others fired for tweets must sue.

Of course, the fact that it’s against Disney is probably even more appealing to Musk, since he’s super salty about the fact that Disney chose (again, a free speech choice) to no longer advertise on ExTwitter. In some sense, this looks like Elon trying to imitate his former colleague, Peter Thiel, in how he destroyed Gawker with mostly frivolous lawsuits.

But Disney is not Gawker. And Disney’s lawyers don’t fuck around (much to our own annoyance regarding copyright).

The free speech absolutist Elon Musk has also been going on a conspiratorial days long rant about how awful Disney is… for deciding that it should use its own speech to introduce audiences to more diverse characters in its shows and movies. Hilariously, he posted Disney’s “inclusions standards” as if he got it from a deep mole within Disney, even though it was published in Variety 3 years ago.

Either way, an actual free speech absolutist would support Disney’s right to have its own speech standards, Carano’s right to say whatever nonsense she wants to say, and Disney’s right to decide not to associate with Carano or Musk when they feel that their values diverged. Those are all forms of free speech.

But, tellingly, Musk seems to think some of them are not allowed.

Filed Under: 1st amendment, association, consequences, elon musk, free speech, gina carano, slapp suit
Companies: disney, lucasarts, lucasfilm, twitter, x

Filing A Badly Drafted, Mistargeted, Bullshit SLAPP Suit Is No Way To Convince Women You’re Not An Asshole

from the yeah,-that'll-work,-sure dept

Dating can be difficult, but there are certain things you can do to not make things worse on yourself. Don’t be a creep. Be kind. Take no for an answer. Actually listen to the people you date. I mean, that’s kinda the standard stuff.

But also, if things go bad and they complain about you online, don’t file the single dumbest lawsuit on the planet in retaliation.

Nikko D’Ambrosio was apparently unable to follow at least one (and possibly more!) of those simple rules. Nikko, a 32-year-old Chicago man (old enough to know better), apparently dated around a bit, then lost his shit when he discovered that some of the women he dated went to the Facebook group “Are We Dating the Same Guy” to offer what were mostly pretty mild complaints about him.

“Very clingy very fast,” the woman commented. “Flaunted money very awkwardly and kept talking about how I don’t want to see his bad side.”

More screenshots showed the woman — who commented as an anonymous member — claimed that after she blocked D’Ambrosio’s number, he used a different number to send her a text in which it appears he attacked her appearance.

Nikko didn’t too much like this. And the guy once described as “very clingy very fast” who allegedly told someone you “don’t want to see his bad side” showed off his bad side in filing this very obvious SLAPP suit against basically anyone he could think of. There are 56 total defendants, including 29 women (some of whom are just relatives of the people he’s actually mad at). There are also 22 variations on Meta/Facebook. While the company has multiple corporate entities, you do not need to sue them all. For good measure, he also sued Patreon and GoFundMe, because why not?

It’s not at all clear why he sued all of those defendants. Most of the individual defendants are not clearly connected to this case. The case only names one woman who he says made defamatory comments about him (they’re not, but we’ll get to that). The rest are just… thrown in there and never explained. Did they like or share the original comments? Who knows. It does appear he sued family members of the main woman he’s mad at, again, for what?

There are so, so, so many problems with the lawsuit I’ve literally restarted this paragraph about six times as I change my mind on which to cover first. But let’s start here: Section 230. As far as I can tell, D’Ambrosio’s lawyers have never heard of it. The complaint doesn’t address it. But it easily bars the lawsuit against all of the many Facebook defendants, as well as Patreon and GoFundMe. He also sues AWDTSG Inc., which is apparently a company that helps to run a series of local “Are We Dating the Same Guy” groups on Facebook, which is what Nikko is particularly pissed at.

Section 230 says that for things like defamation, you get to sue the party who said the actual defamatory thing, not the website that hosts the speech. Should the case even get that far (and it’s not clear that it will), all the Facebook/Meta parties, GoFundme, Patreon, and AWDTSG will easily get their cases tossed on 230 grounds. Having a lawyer file a lawsuit like this without understanding (or even attempting to address) Section 230 seems like malpractice.

Indeed, the lawyers who filed this lawsuit, Marc Trent and Dan Nikolic, kind of parade their ignorance. In the lawsuit they claim that because of “Defendants content moderation responsibilities” they would have had to “review” the posts, and that makes them liable for the alleged defamation. But, um, Section 230 was passed directly to deal with exactly that scenario, and to say that, no, reviewing posts doesn’t make you liable.

And Section 230 protects not just “interactive computer services” but “users” who pass along third party content. So even if he’s suing people for sharing or liking the comments he’s mad about, all of those defendants are protected by Section 230 as well.

It’s stunning that the lawyers in question seem wholly unaware of this.

Next up, defamation. Nothing in the suit appears even remotely close to defamation. The statements all appear to be statements of opinion about what kind of creepy jerk Nikko is. Sorry, Nikko, people are allowed to have opinions of you. That’s not defamation. Nearly all of the statements are clearly opinion statements. And, no, it may not feel great, but opinions that you’re “very clingy, very fast” are not defamatory.

Also, in a defamation suit, you plead which statements were defamatory, including why they are false and defamatory. This complaint does not do that.

Next, they’re trying to use Illinois’ brand new (just went into effect this year!) “doxxing” law, claiming that talking about him and posting his picture violates the law. Now, I think there are some potential 1st Amendment issues with that law, and they’re really driven home by using it here. But to try to make sure that this law is on the correct side of the 1st Amendment, it says that the law is not violated when the speech in question is “activity protected under the United States Constitution,” and boy, lemme tell ya, calling a dude “very clingy” sure qualifies.

There are a bunch of other pretty big legal problems with the lawsuit that are just embarrassing. Ken “Popehat” White covered many of them in his post on this subject. The big one, suggesting that the lawyers have little (if any) familiarity with federal court, is that to file in federal court over state law claims, you have to show “diversity,” meaning that the parties in the case are all in different states. And White notes how badly they fucked that up:

D’Ambrosio’s lawyers assert diversity jurisdiction but make an utter dumpster fire out of it. They admit that both D’Ambrosio and at least one of the defendants come from Illinois, which defeats diversity jurisdiction. They admit they don’t know what state a bunch of the defendants come from. They identify a bunch of the defendants as limited liability companies, but don’t plead the facts necessary to identify those entities’ citizenship for purposes of diversity. This is the kind of thing that makes federal judges issue orders of their own accord saying, in judicial terms, “what the fuck is this shit?”

Also, the lawyers claim it’s a “class action” lawsuit, and are actively seeking to recruit more plaintiffs on Reddit, naturally (where — hilariously — the person who originally posted the topic asked the lawyers if they wanted him to start a GoFundMe, apparently not realizing GoFundMe was one of the defendants in the case). Class action defamation lawsuits aren’t really a thing, because for it to be defamation it has to be a statement about a specific person, and the specifics matter. But even beyond that, if you’re filing a class action lawsuit, you have to take some steps, and as White points out, these lawyers didn’t do that:

The caption of the lawsuit proclaims that it’s a class action, and D’Ambrosio’s lawyers have made comments suggesting that they see themselves as suing on behalf of “victims” other than D’Ambrosio. But other than the caption, the lawsuit contains not a single relevant allegation about being a class action. It doesn’t plead any of the factors necessary to qualify as a class action. It’s also obviously unsuited to be a class action: a class action requires a pool of plaintiffs with factually and legally similar claims, but defamation claims are by their nature very individual and context-specific, and each aggrieved man’s case would be very different depending on what was said about them.

White notes that the lawsuit is so badly drafted that he expects it may get dismissed just on the jurisdictional problems without defendants even having to file anything. He also suggests it’s so bad that it could lead to sanctions from the judge.

But, also, this is exactly the kind of case for which I coined the term Streisand Effect nearly twenty years ago. Doing this kind of shit won’t protect your reputation, it will destroy your reputation. And, again as White points out, a good lawyer would warn you of that before filing this sort of lawsuit. Whether or not they warned him about it, the lawsuit has been filed and now the allegedly “very clingy, very fast” guy who might be “very awkward” is, well, having his reputation spread pretty far and wide.

And there are many, many more. So rather than just the types of people who hang out on the “Are We Dating the Same Guy” Facebook groups, now many, many, many more people — some of whom I’d assume are in the dating pool in the Chicago area — are aware of Nikko D’Ambrosio and his reputation. And not just his reputation for being very clingy, very fast, but his reputation for filing bullshit SLAPP suits to try to silence women for expressing their opinion of him.

Hopefully the judge does dump the case. While Illinois does have a decent anti-SLAPP law (which would clearly apply here), the 7th Circuit has suggested it does not apply in federal court (of course, because of the jurisdiction issues, this case doesn’t apply there either, but… whatever).

More importantly, this is a case that demonstrates yet again why Section 230 is so important to protect people against harassment like this very lawsuit. Without Section 230, it becomes way easier to abuse the legal system to try to silence women who point out that you’re a creep. Section 230 protects that kind of information sharing.

The whole case is a mess of epic proportions. It’s a lawsuit that never should have been filed, but now that it has, congrats to Nikko D’Ambrosio for making sure every dating-eligible woman in Chicago knows to avoid you.

Filed Under: clingy, dating, defamation, doxxing, illinois, lawsuits, nikko d'ambrosio, opinion, section 230, slapp suit, very clingy
Companies: awdtsg, facebook, meta, trent law firm

‘Free Speech Absolutist’ Elon Musk Files Obvious SLAPP Suit Against Non-Profit Critic

from the musk-is-more-of-a-slappist-than-a-free-speech-absolutist dept

There’s so much to dig into on this one. First off, just to state my own bias upfront, I’m not a fan of the Center for Countering Digital Hate (CCDH). Literally just a few days ago I wrote about one of its highly questionable studies and how it’s being used (badly) to justify a terrible bill in California. Beyond that, I think that the organization has a history of publishing overhyped reports that the media (and some politicians) love, but which do not accurately reflect reality.

So, when CCDH produced a report recently claiming that there was a surge in hateful content on ExTwitter, I didn’t cover it, because I don’t trust the group’s methodology to be sound, even if it is likely true that ExTwitter has enabled more hateful content. It also wasn’t that surprising or newsworthy when Linda Yaccarino, CEO of ExTwitter, hit back at the report, claiming it was wrong and that the company was successfully suppressing hateful speech using its visibility filtering tools (side note: this is somewhat ironic, given how people still insist that Elon took over Twitter to get rid of “shadowbanning,” when he’s not just doubled down on visibility filtering, but strongly advocates for it).

But then things blew up in the last few days. It came out on Monday that ExTwitter had sent a pompous, over-the-top, nonsensical threat letter to CCDH from Elon Musk’s personal attack dog, Alex Spiro. Even as much as I disagree with CCDH and their methodology, the letter from Spiro is laughable in its vexatious nonsense:

I write on behalf of my client X Corp., which operates the Twitter platform. It has come to our attention that you and your organization, the Center for Countering Digital Hate, (“CCDH”), have made a series of troubling and baseless claims that appear calculated to harm Twitter generally, and its digital advertising business specifically. CCDH regularly posts articles making inflammatory, outrageous, and false or misleading assertions about Twitter and its operations, which CCDH holds out to the general public as supported by “research.” CCDH fixes this label on its outlandish conclusions about Twitter despite failing to conduct (or even attempt) anything resembling the rigorous design process, analytical procedures, or peer review that a reasonable person would expect to accompany research product published by any reputable organization.

Spiro calls out CCDH’s questionable methodology, which (again) I agree is poor. But poor research methodology does not violate the law, and sending a threatening letter over it seems like a clear SLAPP situation. Spiro’s letter implies a defamation claim:

CCDH’s claims in this article are false, misleading, or both, and they are not supported by anything that could credibly be called research. The article provides no methodology for its selection or testing of tweets, no baseline for Twitter’s enforcement time frame, and no explanation as to why the 100 chosen tweets represent an appropriate sample of the nearly 500 million tweets sent per day from which to generalize about the platform’s content moderation practices. And despite purporting to conclude that Twitter favors Twitter Blue subscribers by allowing them to “break its rules with impunity,” the article provides no evidence of differing treatment in content moderation actions against Twitter Blue subscribers and non-subscribers, and indeed reflects no effort to conduct any testing to support this claim, which appears under its headline. The article cites no sources other than different, similarly threadbare posts on CCDH’s own website, and fails to identify the qualifications of any of the researchers who worked on the article.4 In other words, the article is little more than a series of inflammatory, misleading, and unsupported claims based on a cursory review of random tweets.

Even more bizarrely, it suggests there’s a “false designation of origin” claim under the Lanham Act. Which makes zero sense and just seems like flinging shit at the wall.

CCDH’s lawyers hit back on Monday, explaining why this was all nonsense:

We write in response to the ridiculous letter you sent our clients on behalf of X Corp., which operates the Twitter (or the new “X”) platform, dated July 20, 2023. (A copy of your July 20 letter is attached.) In that letter, you claim that CCDH has supposedly made “inflammatory, outrageous, and false or misleading assertions about Twitter” and suggest it has engaged in some sort of conspiracy “to drive advertisers off Twitter by smearing the company and its owner.” These allegations not only have no basis in fact (your letter states none), but they represent a disturbing effort to intimidate those who have the courage to advocate against incitement, hate speech and harmful content online, to conduct research and analysis regarding the drivers of such disinformation, and to publicly release the findings of that research, even when the findings may be critical of certain platforms

As you know, CCDH recently published an article concerning the proliferation of hate speech on Twitter and the company’s failure to address it. That article involved CCDH’s review of 100 hateful tweets that contained racist, homophobic, neo-Nazi, antisemitic, or conspiracy content—i.e., content that plainly violates Twitter’s own policies in this regard. One tweet, for example, stated that “black culture has done more damage [than] the [Ku Klux] [K]lan ever did.” Another referenced the white supremacist ideology known as “replacement theory,” claiming that “[t]he Jewish Mafia wants to replace us all with brown people.” And yet another explicitly encouraged violence against the LGBTQ+ community, suggesting that LGBTQ+ rights activists need “IRON IN THEIR DIET. Preferably from a #AFiringSquad.” CCDH staff reported all 100 tweets using Twitter’s own designated reporting tool. Four days later, 99 of the 100 tweets identified by CCDH remained available on Twitter.

Tellingly, after CCDH published this article, Twitter did not spend its time and resources addressing the hate and disinformation that CCDH had identified, despite Twitter’s purported commitment to addressing hate speech on its platform. Instead, your clients decided to “shoot the messenger” by attempting to intimidate CCDH and Mr. Ahmed. In your July 20 letter, for example, you write that “CCDH’s claims in [its report] are false, misleading, or both”—although you point to no actual inaccuracy—“and they are not supported by anything that could credibly be called research”—although the article describes the basis for its conclusions and the methodology it used. While it is true that CCDH did not undertake a review of the “500 million tweets” that you claim are posted on Twitter each day, CCDH never claimed to have done so. In fact, under Mr. Musk’s leadership, Twitter has taken steps to curtail research on the platform. To criticize CCDH for being too limited in its research while simultaneously taking steps to close the platform off to independent research and analysis is the very height of hypocrisy.

The response letter also took on the ridiculous suggestion of a Lanham Act claim:

But your July 20 letter doesn’t stop there. You go on to state that there is “no doubt that CCDH intends to harm Twitter’s business” and warn that you are “investigating” whether CCDH has violated Section 43(a) of the Lanham Act. That threat is bogus and you know it. None of the examples cited in your letter constitutes the kind of advertisement or commercial speech that would trigger the Lanham Act. To the contrary, the statements you complain about constitute political, journalistic, and research work on matters of significant public concern, which obviously are not constrained by the Lanham Act in any way. Moreover, as a nonprofit working to stop online hate, CCDH is obviously not in competition with Twitter, which makes your allegations of a Lanham Act injury even more fanciful. Your assertion that the goal in CCDH’s research and reporting is to benefit Twitter’s competitors also ignores the fact that CCDH has published critical, highly-publicized reports about other platforms, including Instagram, Facebook, and TikTok. Simply put, there is no bona fide legal grievance here. Your effort to wield that threat anyway, on a law firm’s letterhead, is a transparent attempt to silence honest criticism. Obviously, such conduct could hardly be more inconsistent with the commitment to free speech purportedly held by Twitter’s current leadership.

I mean, all of this is nonsense. Spiro’s threat letter was clearly a ridiculous (and poorly argued) intimidation tactic. And it’s doubly hilarious that it claims CCDH’s methodology doesn’t count because the sample size is too small, when Musk’s entire faked reason for trying to get out of the Twitter deal was too much spam, based on a similarly misleading sample size.

But, more to the point, Elon has pretended all along to be a supporter of free speech. Many of us have pointed out what a ridiculously false statement that is, and Musk has a long history of suppressing and attacking critics.

Anyway… around the same time that CCDH was sending this letter, ExTwitter and Musk were (stupidly) filing an actual lawsuit against CCDH. The case is clearly a SLAPP suit, but (oddly) ExTwitter is not represented by Spiro or his firm Quinn Emanuel. Nor does it make any of the claims suggested in the letter (defamation or a Lanham Act claim).

Instead, the lawsuit is even dumber. Filed by the law firm of White & Case (which is big enough to know better than to file vexatious SLAPP suits) the claims are breach of contract (?!?) and a CFAA violation for hacking the site. Then there are the usual throw-in claims of “intentional interference” and an “inducing breach of contract.”

The claims are ridiculous, but they are a strong reminder that SLAPP suits come in many forms, and don’t just need to be about defamation. Of course, having this actual lawsuit preceded by Spiro’s weak-ass attempt at intimidation, which strongly implies defamation, only helps to prove that the actual nonsense claims here are pure SLAPPs and a direct attack on free speech by someone who cosplays online as a “free speech absolutist.”

Let’s do a quick explanation for why these claims are frivolous:

CCDH intentionally and unlawfully accessed data it sought regarding the X platform in two ways. CCDH US, as a registered user of X, scraped data from X’s platform in violation of the express terms of its agreement with X Corp. CCDH also convinced an unknown third party — in violation of that third party’s contractual obligations — to improperly share login credentials to a secured database that CCDH then accessed, and retrieved information from, on multiple occasions without authorization. CCDH, in turn, selectively quoted data it obtained via those methods. It did so out of context in public reports and articles it prepared to make it appear as if X is overwhelmed by harmful content, and then used that contrived narrative to call for companies to stop advertising on X.

The specifics here are that ExTwitter is claiming someone gave CCDH access to ExTwitter’s account with Brandwatch. Brandwatch has a tool for advertisers to monitor their brands on social media. Twitter has an ongoing relationship with Brandwatch (likely using the Twitter API) to help customers of Brandwatch (generally advertisers) see what’s happening on social media.

ExTwitter claims that someone with a Brandwatch account gave CCDH access to their dashboard:

Twitter is informed and believes, and on that basis alleges, that none of the Defendants (except for the third party who is included as Doe Defendant and improperly shared its login credentials with CCDH) are or ever have been customers of Brandwatch, and have never been provided with login credentials that would enable them to permissibly access the data with authorization. None of the Defendants (again, except for the third party who improperly shared its login credentials with CCDH) are or ever have been parties to the Brandwatch Agreements. And neither X nor Brandwatch has ever consented, in any form or in any way, to any of Defendants (except the third party who provided CCDH with its login credentials and who is named as a Doe Defendant) the data that X Corp. provided to Brandwatch under the Brandwatch Agreements.

In order to prepare and publish the so-called “research” reports and articles about X, CCDH has — since at least March 2011 — necessarily obtained access to and accessed the Licensed Materials improperly and without authorization. Indeed, CCDH has admitted as much, citing Brandwatch—a platform it never had any right to access—as a source of its data in its “research” reports, despite that data being accessible only to authorized users via login credentials, which the CCDH was not. These actions were unknown to Brandwatch and to X until recently

Even if true, this is no basis for ExTwitter to sue CCDH. It might (in theory, but probably not in reality) have a claim against Brandwatch or the Brandwatch user. Or, more likely, Brandwatch might have a claim against its users for breaching its contract. But there’s no transitive property that gives ExTwitter a legitimate claim against CCDH.

This is all just fluff and nonsense.

There’s also this:

Twitter is informed and believes, and on that basis alleges, that CCDH’s conduct as described herein is intended to do more than further CCDH’s own censorship efforts.

Again, I disagree with CCDH’s methodology and its goals. I think it’s a terrible organization that gets way too much attention for its shoddy research and biased takes. But what is described above is literally the quintessential definition of free speech. CCDH cannot meaningfully “censor” anything. The only thing it can do is use its own free speech rights to try to convince others to disassociate from someone.

That’s free speech. That’s the marketplace of ideas.

I can disagree with CCDH’s position and its research and arguments, and still recognize that it has every right to advocate for whatever it wants to advocate for. That’s not censorship, Elon, that’s free speech.

So, the breach of contract claims are a total joke. It’s not the contract between ExTwitter and CCDH that was broken. And the CFAA claims are even more disgusting. We’ve obviously written about the horror that is the CFAA many times before. The Computer Fraud and Abuse Act, passed because Ronald Reagan was confused and thought the movie War Games was true, has been widely abused for years by companies (and law enforcement) using bogus claims of “unauthorized access” to attack people who do things on their computers that they just don’t like. The broad nature of the law has lead to it being called “the law that sticks” because it’s often used when all other laws would fail.

Thankfully, over the past few years, the courts have pushed back on the most egregious uses of the CFAA, but it’s still a bad law. And here, the CFAA claims are particularly laughable:

Defendants, except for the third party who provided CCDH with its login credentials, have violated the CFAA by knowingly, and with intent to defraud X Corp., accessing a protected computer, without authorization, and by means of such conduct furthered the fraud and obtained one or more things of value

Bullshit. Again, this claim only makes (very slightly, but not really) sense if it were Brandwatch making it, not ExTwitter. The complaint makes it clear that the computer systems in question were Brandwatch’s, not ExTwitter’s:

Defendants (except for the third party who is included as a Doe Defendant and improperly shared its login credentials with CCDH) were never validly given login credentials to access the data provided under the Brandwatch Agreements. Those Defendants nonetheless, knowing the data was secured pursuant to the Brandwatch Agreements and that those Defendants did not have authorization to access it, convinced an unknown third party, who is likely a Brandwatch customer, to share its login credentials with the remaining Defendants. Those Defendants then accessed that data without authorization, as admitted in CCDH’s reports and articles discussed above, in furtherance of obtaining data regarding X that those Defendants could mischaracterize as part of its campaign to call on companies to stop advertising on X.

And the “loss” part, which is a necessary part of a CFAA claim, is particularly ridiculous even by CFAA standards, in which “losses” are often quite absurd.

X has suffered loss as a result of these violations, including, without limitation, amounts expended attempting to conduct internal investigations in efforts to ascertain the nature and scope of CCDH’s unauthorized access to the data, significant employee resources and time to participate and assist in those investigations, and attorneys’ fees in aid of those investigations and in enforcing the relevant agreements. These losses amount to well over $5,000 aggregated over a one-year period

Yes. That’s right. Elon is claiming that the “loss” under the CFAA is the fact that ExTwitter employees had to investigate how it was that CCDH was getting the information it used to make fun of Twitter.

This is all hogwash. No matter what you think of CCDH, it has every right to analyze Twitter and post its own interpretation of how well the company is handling hateful content, just as I (or Musk) have the right to respond and point out the problems with their opinions or analysis.

That is free speech.

What is not free speech is using the power of the state to file vexatious, bogus lawsuits to try to intimidate them for their speech. The fact that the case filed has entirely different (but equally ridiculous) legal theories than the letter that preceded it really only serves to underline that the intent of this was to find the best way to intimidate critics. The lawyer filing this case, Jonathan Hawk, is an experienced lawyer working for a giant law firm. He must know that this case is a vexatious, nonsense SLAPP suit, but he still agreed to file it. It’s disgusting.

While California has an anti-SLAPP law, as some have noted, this case may not be applicable to it. The CFAA claim is a federal claim, and California’s anti-SLAPP law (while it can be used in federal court) can’t be used against federal law (this is why we NEED A FEDERAL ANTI-SLAPP law). And, while the breach of contract claim might be arguable under California’s anti-SLAPP, ExTwitter can and will argue it’s not really about speech… In other words, this is still going to be a pain for CCDH. (Edited to provide a clearer explanation of the anti-SLAPP issue…).

I asked 1st Amendment Ken White to dig into the California anti-SLAPP analysis, and he explained why it (unfortunately) likely won’t apply here:

When evaluating an anti-SLAPP motion, California courts look to the legal nature of the claim, not the plaintiff’s intent in bringing it. A case that the plaintiff filed because of protected activity, or in retaliation against protected activity, doesn’t come under the statute unless the legal claims are based on protected activity. This is sometimes called the “gravamen” test. So, for instance, if a landlord sues to evict you and cites your non-payment of rent, even if you claim that the real motive is your organizing tenants to protest the landlord, the anti-SLAPP statute doesn’t apply because the gravamen of the claim – the thrust of the claim – isn’t your protected speech. Here, the defendant can’t use the anti-SLAPP statute to attack the CFAA claim because it’s a federal cause of action. In addition, I think it’s going to be tricky showing that the gravamen of the other claims is the speech as opposed to breach of the contract regarding access to the data. It’s not a sure loss, but it’s a problem.

And, again, this is why we really need a strong federal anti-SLAPP law to deal with situations like this.

But, let’s be 100% clear about this: Elon Musk is not a free speech absolutist or a free speech supporter. He’s a thin-skinned free speech suppressor willing to file vexatious SLAPP suits to intimidate those who criticize him.

Filed Under: alex spiro, california, cfaa, criticism, defamation, elon musk, free speech, intimidation, jonathan hawk, lanham act, research, slapp suit, trademark
Companies: ccdh, twitter, x

Devin Nunes Loses Yet Another Of His Frivolous SLAPP Suits Against CNN

from the slapping-in-the-wrong-venue dept

At some point, you have to wonder if judges are going to start slapping sanctions on former Representative Devin Nunes and his SLAPP-happy vexatious litigator, Steven Biss. We’ve covered their many escapades in filing highly questionable defamation cases against basically any major media organization that so much as lightly criticizes Nunes (and also… a satirical internet cow). Given its outsized roles in the minds of culture warriors who wish to insist that it is biased against them, it’s perhaps little surprise that the Nunes/Biss superduo has sued CNN numerous times. They also have a history of losing those cases.

The most recent one was late last year, when Nunes sued CNN (again) and its host Jake Tapper, after Tapper called out a bunch of Republicans, including Nunes, for how they responded to the attack on Paul Pelosi in his San Francisco home.

As we highlighted at the time, the complaint listed out five statements that Nunes claimed were defamatory:

1 “He [referring to President Donald Trump], at least, did condemn the attack on Paul Pelosi, as did House Republican Leader Kevin McCarthy, as did Senate Minority Leader Mitch McConnell”

2 “But you know what, far too many other Republicans and Conservative leaders are out there instead spreading insane, offensive and false conspiracy theories, such as the complete and utter lie, the deranged smear that Paul Pelosi and the attacker, the man who hit him in the head with a hammer, were in a sexual relationship”

3 “It’s hard to fathom the kind of mind that hears of a tragedy, like what happened to 82 year-old Paul Pelosi, and decides to traffic in this filth. But, sadly, Donald Trump Jr. is hardly alone. Former Republican Congressman and Chairman of the House Intelligence Committee, Devin Nunes, who now runs Trump’s social media company, Truth Social, shared this Halloween image [link to truth] with the words, ‘at least this guy has his clothes on.’ Nunes also reposted this meme [link to retruth], using a poster for the gay romantic comedy Bros, twisting it into a smear of Paul Pelosi. And, again, the man who tried to bash Paul Pelosi’s head in with a hammer. Words fail.”

4 “What is wrong with these people?”

5 “In addition to being an inhuman and inhumane response to a tragedy, it’s a lie … Pelosi did not know the suspect.”

As we noted at the time, many of these statements weren’t even about Nunes in the first place, and things like “what is wrong with these people” is so obviously not defamatory (it’s just a pure statement of opinion) that no good defamation lawyer would ever try to claim that it was. We wondered if this would lead to even more sanctions against Biss.

Last week, the case was thrown out, but not because the the claims are so weak, but for an even more ridiculous reason: Biss filed it in a court that has no jurisdiction over the matter. For unclear reasons, he filed the case in Florida (perhaps because that’s where Truth Social, the flailing social media site started by former President Trump that news reports suggest he’s looking to abandon, is headquartered).

Either way, the judge is not at all impressed. The case against Tapper is dismissed for lack of personal jurisdiction, given that Tapper is in DC, not Florida:

Florida’s long-arm statute does not reach Tapper, and exercising personal jurisdiction over him in Florida would not satisfy due process; therefore this case is due to be dismissed as to Tapper.

The court notes that only one of the statements could possibly even be implied to be directed at Florida, but even that’s not enough.

Tapper reported the Segment while in CNN’s Washington, D.C. studio, where he generally reports from, and the Segment was produced by employees who work out of CNN’s D.C. or New York City bureaus…. Nothing Tapper discussed in the Segment pertained specifically to Florida, and Tapper never traveled to Florida in relation to the Segment… Nunes merely alleges he suffered harm in Florida because he works there. But Tapper’s commentary was not directed at the business of Truth Social or Nunes’ work with the company… Both Florida law and the U.S. Constitution, therefore, require that the claim against Tapper be dismissed… for lack of personal jurisdiction — both general and specific.

As for CNN, the case against it is dismissed for Florida being the “improper venue.”

Nunes alleges that he “works in Sarasota County”… but, for venue purposes, the fact that he works in Florida is irrelevant. The relevant question is whether all defendants reside in the state of Florida — Nunes’ ties to Florida do not matter.

And thus, yet another of Devin Nunes’ questionable lawsuits against CNN fails. The fact that pretty much all of them seem to end this way again should make people wonder exactly why Nunes keeps filing these SLAPP suits (and who is funding them).

Filed Under: defamation, devin nunes, florida, jake tapper, long-arm statute, slapp, slapp suit, steven biss, venue
Companies: cnn

Nick Sandmann, Who We Were Told Would Be Rich Beyond Belief From All The Media Companies He Sued, Loses Basically All Of His Cases

from the well,-look-at-that dept

A while back, we noted that there was something of a Rorschach test in how you viewed basically everything about Nick Sandmann, the MAGA-hat wearing high school student who became front page news after a video of him standing in front of a Native American demonstrator, Nathan Phillips, went viral. Everyone had their own interpretations. Context was often lacking. People’s personal beliefs may have clouded their own interpretations — across the board. But, as we noted, people’s own interpretations of what they saw… just is not defamatory. But Nick Sandmann sued anyway. He sued a whole bunch of media companies. And his fans (generally those in the Trump world), insisted he was going to end up owning these companies.

It’s still not entirely clear why, but two of the companies, the Washington Post and CNN chose to settle the lawsuits. Considering a court had initially dismissed the WaPo suit, and only reinstated it on very narrow grounds (that still seemed unlikely to win), and the fact that the lawsuit against CNN was on shaky ground as well, basically anyone with any experience with defamation law assumed that the settlement was at what’s generally known as “nuisance fee” levels: a pittance — less than it would cost to pay the lawyers to win the suit, just to make the kid and his lawyers go away. Of course, his fans ridiculously assumed that the settlement meant he got the full hundreds of millions he sued over. And some very ignorant media folks implied something similar. But, almost everyone agrees that Sandmann probably got in the low to mid-five figures. Not bad for a student, but not exactly lifechanging either.

Indeed, Sandmann’s former lawyer (who he eventually fired) more or less gave away the fact that the settlements were nuisance fees when he threatened to sue CNN on air talent for merely speculating that the amounts were tiny nuisance fees (around 25k)—arguingthattheirspeculationbroketheconfidentialityagreementinthesettlement.Ifhe’dactuallymade25k) — arguing that their speculation broke the confidentiality agreement in the settlement. If he’d actually made 25k)—arguingthattheirspeculationbroketheconfidentialityagreementinthesettlement.Ifhe’dactuallymade250 million like some people thought, speculating that the amount was 25k…wouldn’thavebrokenanyconfidentialityagreement,becauseitwasn’ttheconfidentialamount.Theonlywaythatspeculationcouldpossiblybetiedtotheagreementwas…iftheamountbasicallywas25k… wouldn’t have broken any confidentiality agreement, because it wasn’t the confidential amount. The only way that speculation could possibly be tied to the agreement was… if the amount basically was 25k…wouldn’thavebrokenanyconfidentialityagreement,becauseitwasn’ttheconfidentialamount.Theonlywaythatspeculationcouldpossiblybetiedtotheagreementwas…iftheamountbasicallywas25k.

So, yeah, the WaPo and CNN caved in and settled. Probably because it was cheaper to do so. But, of course, that also highlights how both of them are willing to settle clearly bogus defamation lawsuits, which isn’t great.

And… it’s looking like an even more terrible decision to settle now that basically all of the other Sandmann lawsuits against media orgs got dismissed, fairly easily, in one fell swoop.

Now, there is an oddity in this case that is worth highlighting: even though the lawsuits are against media companies, they’re actually over a statement made by Phillips, claiming that Sandmann blocked his way. This was the only statement that the judge reinstated in the WaPo case, and which the court allowed to remain in all the other cases. This was because this was the only statement that might possibly be factual, if there were some evidence to back it up — so discovery was allowed on that point alone.

The court details the procedural history of the cases, including the WaPo and CNN settlements, how a bunch of other media orgs (NY Times, CBS, ABC, Gannett, and Rolling Stone) were sued as well, and how that very limited discovery was allowed. There was a deposition of Sandmann, which even the court notes “contains relatively little testimony pertinent to the issue at hand.” And then declarations from from Phillips and some other witnesses on the day of the confrontation.

It doesn’t sound like any of these actually mattered all that much. There were also twenty different videos of the events of the day that were submitted — a reminder of how that same event was viewed from so many different perspectives (literally and figuratively).

The court then more or less telegraphs what it is thinking regarding all of this:

In the Court’s view, six of the videos show the specific encounter between Sandmann and Phillips in helpful respects. What a viewer might conclude from these videos is a matter of perspective.

A matter of perspective is… not defamatory.

Then we get to the analysis and… as lots of us predicted on the very day Sandmann started suing, it does not go well for Sandmann. Sandmann’s lawyers tried to get around the kinda important question of whether or not the statements he was suing over were statements of fact (which could potentially be defamatory) or statements of opinion (which cannot). He argued that the “law of the case” doctrine prevented the court from considering that issue, which the court rightly pointed out is utter nonsense.

Sandmann first argues that the Court cannot now consider the fact-or-opinion issue because of the law of the case doctrine. This argument is without merit.

After explaining why it has no merit (which is not worth going into in this post, but suffice it to say that “law of the case” doctrine makes no sense here, because it’s about issues that are already settled and the court had explicitly said that these issues were not settled and would be revisited at this stage of the case), the court also notes that it’s particularly ridiculous for Sandmann to argue that this was a settled issue when…

Finally, Sandmann’s insistence that the Court cannot now revisit this legal issue is ironic considering that he vigorously, and successfully, moved the Court to reconsider its initial ruling in The Post case.

Then we move on to the main show: were the statements factual? Or were they opinion — and thus categorically not defamation. The key statement at issue were Phillips’ claim that Sandmann “just blocked my way and wouldn’t allow me to retreat.”

The court notes that this is, clearly, Phillips opinion of the situation at hand:

Instead, a reasonable reader would understand that Phillips was simply conveying his view of the situation. And because the reader knew from the articles that this encounter occurred at the foot of the Lincoln Memorial, he or she would know that the confrontation occurred in an expansive area such that it would be difficult to know what might constitute “blocking” another person in that setting.

Generally, “blocking” is an imprecise term capable of different meanings that “lacks a plausible method of verification.” Croce, 843 F. App’x at 715 (citation omitted). In particular, because of the context in which this encounter occurred—the large, open area adjacent to the Lincoln Memorial— the blocking statement simply cannot be proven to be either true or false. Had such an encounter occurred in a small or confined area, a statement that one person was “blocked” by another might be objectively verifiable. But it is not here.

The judge then continues to kick an already dead Sandmann argument:

Interestingly, plaintiff’s responsive memorandum to the joint motion for summary judgment argues that “blocking” is factual because “it involves the oppositional position of two human bodiesin a confined space.” (Case No. 20cv23, Doc. 61 at 42) (emphasis added). But, as the videos depict, the area where this encounter occurred was a huge, outdoor setting, not a confined space.

Ooops.

The court goes on to note that since Phillips is conveying his own view of Sandmann’s state of mind, it’s obvious that he’s not conveying facts, but rather his opinion of the situation. Sandmann’s own depositions more or less sinks his argument here. From a footnote in the ruling:

Sandmann’s own deposition testimony illustrates the unverifiability of someone’s state of mind. Sandmann was asked whether it was possible “that Phillips was trying to see if you guys [Sandmann and his friend, Cameron] would both move to create a path for him to go towards what would now be where you are standing?” (Sandmann Dep. at 238:1–6). This of course required Sandmann to speculate and prompted him to answer “It’s possible he was thinking that. Again, he never made that clear.” (Id. at 238:12–13). He was then asked if this was because “he [Phillips] didn’t articulate it?” (Id. at 238:15–16). To which he responded “Correct.” (Id. at 238:17). Phillips’s intent in that moment is not objectively verifiable, the same way Sandmann’s intent in that moment is not objectively verifiable. The Court must look at the meaning of the statements when they were made, without reference to post hoc explanations.

And, since speculation on someone else’s state of mind is incapable of being proven true or false, it cannot be a statement of fact… and therefore cannot be defamatory.

The fact that the media orgs being sued reported on Phillips’ statements doesn’t magically make it defamatory:

The media defendants were covering a matter of great public interest, and they reported Phillips’s first-person view of what he experienced. This would put the reader on notice that Phillips was simply giving his perspective on the incident.

And thus…

Therefore, in the factual context of this case, Phillips’s “blocking” statements are protected opinions. This holding moots all other motions before the Court.

Again, it seemed quite obvious that this was going to be the eventual outcome of the case to anyone with even a modest level of experience with defamation cases. The WaPo and CNN settlements were likely because the nuisance fees of paying him off were even less costly than going through with the minimal discovery that occurred. But if they had gone through with it, as this ruling makes clear, the case would have been dismissed. There was no defamation there.

And it doesn’t look like Nick Sandmann is going to be owning CNN any time soon.

Filed Under: defamation, nathan phillips, nick sandmann, opinion, slapp suit, state of mind
Companies: abc, cnn, gannett, ny times, rolling stone, washington post

Alan Dershowitz Files SLAPP Suit Against CNN; Says Not Airing More Of What He Said Is Defamation

from the not-how-it-works-dersh dept

Famed law professor Alan Dershowitz is at it again. He’s now suing CNN for defamation in a SLAPP suit, because he’s upset that CNN did not provide an entire quote he made during the impeachment trial before the US Senate, claiming that because he was quoted out of context, it resulted in people believing something different than what he actually meant with a quote. Reading the lawsuit, the argument is not all that different from the defamation claim made by another Harvard Law professor, Larry Lessig, earlier this year, in which he accused the NY Times and a reporter there of defamation for taking his comments out of context. Lessig later dropped that lawsuit.

In both cases, these law professors are effectively arguing that when they make convoluted arguments, you must include all of the nuances and context, or you might face defamation claims. That’s incredibly chilling to free speech, and not how defamation law works. Dershowitz’s complaint is that during the trial, he made the following claim:

?The only thing that would make a quid pro quo unlawful is if the quo were somehow illegal. Now we talk about motive. There are three possible motives that a political figure could have. One, a motive in the public interest and the Israel argument would be in the public interest. The second is in his own political interest and the third, which hasn?t been mentioned, would be his own financial interest, his own pure financial interest, just putting money in the bank. I want to focus on the second one for just one moment. Every public official that I know believes that his election is in the public interest and, mostly you are right, your election is in the public interest, and if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”

Dershowitz is upset that CNN aired a segment that showed just that final sentence:

Every public official that I know believes that his election is in the public interest and, mostly you are right, your election is in the public interest, and if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.

But here’s the thing: CNN also did air the full segment. And Dershowitz admits this. He’s just upset that at other times they only aired part of it, and that some commentators don’t paraphrase it the way he wanted them to. Here’s where he admits that CNN did, in fact, air the entire clip:

Immediately after Professor Dershowitz presented his argument, CNN employees, Wolf Blitzer and Jake Tapper, played the entire clip properly, so CNN knew for certain that Professor Dershowitz had prefaced his remarks with the qualifier that a quid pro quo could not include an illegal act. That portion then disappeared in subsequent programming.

It disappeared because the longer quote is long, and people were focused on the key part — that final sentence. Many people — including some on CNN — mocked Dershowitz for those remarks. Because they’re ludicrous. Even with the full paragraph. But the mockable part is the final sentence, and that’s why it’s news. And the CNN commentators who mocked it were commentators — people paid to give their opinion on what Dershowitz said.

But, as with Lessig’s lawsuit, the complaint from Dershowitz is that commentator’s opinions about what was said differs from what was meant. But opinions cannot be defamatory. And if people misinterpreted what Dershowitz said, that’s on Dershowitz for not explaining it clearly enough. We’re in a world of trouble if people get to sue for defamation every time someone misunderstands their poorly made argument.

I can understand why it’s frustrating for people to completely misunderstand your argument. It happens all the time to lots of people — including myself. It happens quite often when people try to make carefully nuanced arguments. But misunderstanding, or even misrepresenting, a more nuanced argument is not defamation. And nothing in Dershwotiz’s lawsuit changes that.

Dershowitz’s lawsuit hangs its hat on the Masson v. New Yorker Supreme Court ruling from 1991. Dershowitz’s complaint describes that ruling as follows:

… the Court held that a media organization can be held liable for damages when it engages in conduct that changes the meaning of what a public figure has actually said. While Masson involved the use of quotation marks to falsely attribute words to Jeffrey Masson, the law that the case created is broad, and unequivocally denies first amendment protections to a media organization that takes deliberate and malicious steps to change the meaning of what a public figure has said. That is exactly what CNN did when it knowingly omitted the portion of Professor Dershowitz?s words that preceded the clip it played time and time again.

This is… not an accurate portrayal of the Masson case or ruling. And, yes, I recognize that there’s some irony in Dershowitz claiming its defamation to misrepresent himself while his lawsuit then misrepresents a key Supreme Court case that it relies on. The Masson case is a fun one to read. In involves an article (and then a book made out of the article) about an academic where it appears that the author didn’t just selectively quote the academic, but made up quotes. The ruling compares the quotes in the article to the tape recordings of interviews to note just how different the quotes in the story are from what was actually said. That’s… not what is happening here. It is true that one of the quotes in the Masson case involved selectively excising some of a quote, but that was done in a truly egregious way. It wasn’t that they left out context, it was that they excised a middle portion, to make a later portion appear that it was referring to something much earlier, rather than what was excised.

That is… not what happened to Dershowitz. Indeed, the Masson ruling works against Dershowitz in many ways. It actually says that you have to expect the press to take your long rambling comments and tighten them up, because that’s part of journalism:

Even if a journalist has tape-recorded the spoken statement of a public figure, the full and exact statement will be reported in only rare circumstances. The existence of both a speaker and a reporter; the translation between two media, speech and the printed word; the addition of punctuation; and the practical necessity to edit and make intelligible a speaker’s perhaps rambling comments, all make it misleading to suggest that a quotation will be reconstructed with complete accuracy. The use or absence of punctuation may distort a speaker’s meaning, for example, where that meaning turns upon a speaker’s emphasis of a particular word. In other cases, if a speaker makes an obvious misstatement, for example by unconscious substitution of one name for another, a journalist might alter the speaker’s words but preserve his intended meaning. And conversely, an exact quotation out of context can distort meaning, although the speaker did use each reported word.

In all events, technical distinctions between correcting grammar and syntax and some greater level of alteration do not appear workable, for we can think of no method by which courts or juries would draw the line between cleaning up and other changes, except by reference to the meaning a statement conveys to a reasonable reader. To attempt narrow distinctions of this type would be an unnecessary departure from First Amendment principles of general applicability, and, just as important, a departure from the underlying purposes of the tort of libel as understood since the latter half of the 16th century. From then until now, the tort action for defamation has existed to redress injury to the plaintiff’s reputation by a statement that is defamatory and false.

In the Masson case, the Court did find that many of the changes to the text, including that one section, involved a “material” difference in meaning, and therefore could be found defamatory by a jury. But this case is very, very different than what Dershowitz is claiming about CNN. They didn’t quote his whole line, but there is no requirement they quote his entire argument.

Then there’s the whole damages bit. According to Dershowitz, his reputation was damaged to the tune of $300 million because some people made fun of him on CNN, and it’s all their fault that they didn’t understand his poorly made argument. The fucking entitlement of this guy.

The damage to Professor Dershowitz?s reputation does not have to be imagined. He was openly mocked by most of the top national talk show hosts and the comments below CNN?s videos show a general public that has concluded that Professor Dershowitz had lost his mind.

Being mocked on TV is proof of damages? Really, now? How fragile is Dersh’s ego here? Multiple times in the lawsuit, Dershowitz’s lawyer (yes, he found an actual Florida man lawyer to file this lawsuit) talks about how only playing part of his long silly answer would lead people to believe that Dersh had “lost his mind”:

The very notion of that was preposterous and foolish on its face, and that was the point: to falsely paint Professor Dershowitz as a constitutional scholar and intellectual who had lost his mind. With that branding, Professor Dershowitz?s sound and meritorious arguments would then be drowned under a sea of repeated lies.

If only airing one sentence of your preposterous argument makes you look like you’ve lost your mind, perhaps the problem is in how you frame your arguments.

This is yet another SLAPP suit. Florida has an anti-SLAPP law, but it’s a mixed bag in terms of how strong it is. Of course, as with many SLAPP suits, the real goal is likely to just be intimidation, rather than to actually win a vexatious nonsense lawsuit.

Filed Under: 1st amendment, alan dershowitz, anti-slapp, context, defamation, florida, free speech, slapp, slapp suit
Companies: cnn

Judge Rejects Devin Nunes' SLAPP Suit Over The Esquire Article He Really, Really Doesn't Want You To Read

from the have-you-read-it-yet? dept

A federal judge has happily dismissed one of Devin Nunes’ many SLAPP suits. This isn’t much of a surprise given what the judge had said back in May regarding Nunes’ Iowa-based SLAPP suit (reminder: Iowa has no anti-SLAPP law) against Esquire Magazine and reporter Ryan Lizza. The lawsuit was over this article that Devin Nunes really, really doesn’t want you to read: Devin Nunes?s Family Farm Is Hiding a Politically Explosive Secret. Reading that will make Rep. Devin Nunes very, very sad.

Back in May, the judge made it clear that he didn’t think there was much of a case here, but gave Nunes a chance to try to save the lawsuit. As you can already tell, his lawyer, Stephen Biss, has come up empty in his attempt. The court easily dismisses the case with prejudice. First, the judge goes through the various statements that Nunes/Biss claim are defamatory and says “lol, no, none of those are defamatory.”

The statements at issue also do not assert provably false facts, nor do they imply the existence of undisclosed facts. The statements that plaintiff has a secret, hid or concealed his family?s move, or conspired with others to hide the move do not have ?precise core meaning for which a consensus of understanding exists.? … There is no precise meaning for how many people can know a fact for it to remain a ?secret? nor is there an accepted line between ?hiding? or ?concealing? a fact and simply declining to publicize it. Likewise, in this context there is no precise meaning of ?conspiracy.? For the same reasons, the challenged statements are not ?objectively capable of proof or disproof[.]?…

The context of defendants? statements also weighs in favor of being protected opinions. The context of the publication includes the ?social context? of the publication, which includes the style of writing and the intended audience…. The Article is written in a first-person perspective and includes numerous instances of Lizza?s subjective mental impressions. This weighs against the statements being reasonably construed as statements of fact as opposed to Lizza?s characterizations or opinions.

Incredibly, the ridiculous, performative, hyperbolic language that Biss employed in the lawsuit — calling Lizza a “left-wing political journalist, well known for his extreme bias towards Plaintiff” comes back to bite Nunes in this case:

The context also includes ?public context or political arena in which the statements were made.?… Plaintiff alleges that Lizza is a ?left-wing political journalist, well known for his extreme bias towards [p]laintiff.? …. At the time defendants published the Article, plaintiff was a sitting Republican congressman running for re-election…. In this public context, the Court must construe the Article in light of this nation?s ?profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.? … Accepting plaintiff?s allegations as true, any reasonable reader would construe the Article in light of Lizza?s well know political bias. Thus, any reasonable reader would understand defendants? use of terms like ?secret? or ?conspired? as the type of hyperbole that is to be expected in the political arena rather than an insinuation of fact…. In this public context, no reasonable reader could construe Lizza?s statements as facts rather than opinions.

Nunes would have lost either way, but it’s hilarious to see the ridiculous, over-the-top language his lawyer used come back directly to bite him.

Also, the judge points out that Lizza’s articles support the conjecture that Nunes is so upset about all this pretty strongly:

Finally, the statements at issue cannot be construed as implying undisclosed defamatory facts because Lizza disclosed the basis for his conclusions. As to the statements that plaintiff?s family?s move was a ?secret? or was ?concealed,? the Article states that Lizza was unable to find any mention from plaintiff or the press in plaintiff?s district mentioning the move…. The Article also mentions a Wall Street Journal editorial which discussed plaintiff?s family?s dairy farm and featured a Tulare, California dateline…. Nothing in the context of the Article otherwise implies that defendants? characterization is based on any other undisclosed facts.

Similarly, as to the conclusion that plaintiff and others conspired to hide the move, the Article points to two specific instances that support the statement. First, the Article notes that plaintiff appeared at a town hall with Congressman King in a town fifty miles from Sibley. The press release for the event did not mention plaintiff?s family ties to the district, and instead stated that plaintiff?s ?family has operated a dairy farm in Tulare County, California for three generations.? … Second, the Article discusses how the Dairy Star article about NuStar mentioned several members of the Nunes family, but omitted plaintiff…. Nelson told Lizza he omitted plaintiff at plaintiff?s family?s request…. These facts show the basis for defendants? conclusion that plaintiff and others ?conspired? to hide plaintiff?s family?s move, but do not imply the existence of other facts. The reader is ?free to accept or reject [defendants?] opinion based on their own independent evaluation of the facts.?

As for the statement in the article about Nunes trying to discredit the Russia investigation and “protect[ing] Donald Trump at all costs, even if it means shredding his own reputation and the independence of the historically nonpartisan committee in the process” is deemed rhetorical hyperbole:

This statement is a protected opinion for two reasons. First, the statement is ?rhetorical hyperbole? and is thus protected by the First Amendment. In, Adelson v. Harris, 774 F.3d 803, 807 (2d Cir. 2014), the court held that statements that plaintiff?s money was ?dirty? and ?tainted? was non-actionable rhetorical hyperbole protected by the First Amendment. Terms like ?battering ram,? ?at all costs,? and ?shredding? are similar rhetorical hyperbole as well.

Second, this statement also has no ?precise core of meaning for which a consensus of understanding exists? and thus is not objectively capable of proof or disproof….. There is no core meaning about what it means to use a committee as a battering ram, protect someone at all costs, or shred one?s own reputation. Even if these terms had a precise meaning, plaintiff has not explained how such statements could be proved or disproved. Plaintiff argues these statements ?accuse Plaintiff of abusing his position as Chairman of the House Intelligence Committee, obstruction of the Russia investigation, prejudice, impartiality and unethical behavior.? …. Plaintiff fails, however, to identify any provably false facts implied by the Article that would lead to these conclusions. Also, for the same reasons discussed in the previous section, the context of defendants? statements, particularly these statements about issues of fundamental public importance, must be construed as opinions entitled to protection in the context of political debate concerning a public official.

Another statement — regarding Nunes’ family selling their California dairy farm and moving to Iowa for a new farm — the judge notes that Nunes made no effort to claim that this statement is false, even though it was listed as one of the defamatory statements in the lawsuit:

Plaintiff has not alleged that any aspect of this statement is false, nor does plaintiff?s brief articulate how this statement is defamatory. Plaintiff appears to admit the statements to the extent it alleges that plaintiff?s parents, brother, and sister-in-law currently live and work in Sibley, Iowa…. Regardless, nothing about this statement is defamatory. None of the facts about plaintiff?s relation to various individuals and their real estate transactions tends to harm plaintiff?s reputation. As a matter of law this statement is not defamatory.

One by one the judge rejects each and every claimed defamatory statement for reasons like these. Another one gets rejected because it’s about Nunes’ family, not himself. Another for being “substantially true.” Basically just as we said when this suit was filed, none of this is even remotely defamatory.

Biss tried to get around the fact that none of the actual statements are defamatory by arguing that the article as a whole implied defamatory things and… that’s not how any of this works. And the judge knows that.

Plaintiff fails to state a claim for defamation by implication for two reasons. First, no reasonable person could draw plaintiff?s asserted implication from the Article. Second, even if a reasonable person could draw the implication, there is no indication that defendants intended or endorsed the implication.

He also suggests there are “defamatory inferences,” and again, the judge points out that the article does not support this claim:

Reading the entire Article in context, no reasonable reader could reach plaintiff?s alleged implication because the Article negates those implications. The Article states that plaintiff ?has no financial interest? in NuStar. … The Article also makes clear plaintiff is not involved in managing NuStar. … (noting that the Dairy Star article stated that NuStar was managed by Anthony Jr. ?with his son and wife? and noting in the next paragraph plaintiff is not mentioned anywhere in the Dairy Star article). No reasonable reader could understand the Article to imply the exact opposite of its text, i.e. that plaintiff had some financial or managerial interest in NuStar.

Likewise, no reasonable reader could read the Article to imply plaintiff conspired with others to hide NuStar?s use of undocumented labor. The Article is clear the conspiracy was ?to hide the fact that [plaintiff]?s family sold its farm and moved to Iowa[.]? …. Similarly, no reasonable reader could find the ?politically explosive secret? referenced in the title of the Article is NuStar?s use of undocumented labor. The Article states ?[s]o here?s the secret: The Nunes family dairy of political lore?the one where his brother and parents work?isn?t in California. It?s in Iowa.? … Given these express statements, no reasonable reader could infer that plaintiff was involved in a conspiracy to hide NuStar?s use of undocumented labor.

Then after all of that, the court also notes that Nunes failed to show actual malice, which, of course, is necessary in defamation cases involving public figures. And, as a reminder, “actual malice” does not mean “he didn’t like the guy.” It has a very specific meaning: that the statements were made knowing they were false or with reckless disregard for whether it was false or not. And, as the judge notes, there was no evidence to support this at all.

The cases plaintiff cites in support of his argument highlight the factual insufficiency of his complaint. For example, plaintiff asserts defendants acted with actual malice because they failed to observe journalistic standards, conceived of a storyline in advance and sought to find evidence to confirm that story, and relied on unreliable or biased sources in researching the Article…. These allegations, however, are ?naked assertion[s]? devoid of ?further factual enhancement,? and ?labels and conclusions,? that fail to plausibly assert actual malice….

[….]

The Court will not reiterate every factual deficiency in the amended complaint, but some examples are illustrative. Plaintiff alleges defendants ?relied on sources, including anonymous and unnamed persons, they knew were wholly unreliable and had an axe to grind against Plaintiff and his family.?… Plaintiff does not identify the sources, what axe the sources had to grind with plaintiff, or any factual basis from which the Court could plausibly find that defendants? sources were unreliable or that defendants knew or should have known they were unreliable. To the contrary, the Article itself refers to two unnamed, but not anonymous, sources who had firsthand knowledge of NuStar?s use of undocumented labor…. This is fundamentally different than the cases upon which plaintiff relies. See Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 315 n.10 (5th Cir. 1995) (noting that evidence of an ulterior motive can ?bolster an inference of actual malice,? and citing specific facts about the relationship between the parties from which the jury could have found that defendant made defamatory statements with actual malice); AdvanFort Co. v. Mar. Exec., LLC, No. 1:15-cv-220, 2015 WL 4603090, at *8 (E.D. Va. July 28, 2015) (finding that plaintiff could plausibly allege actual malice if plaintiff specifically asserted that defendant knew the author?s relationship with plaintiffs had ?gone sour? after their past ?unsuccessful business relationship?); Barreca, 683 N.W.2d at 123 (reversing summary judgment when record established defendant made defamatory statement based on one anonymous and unverified phone call, and portions of the statement at issue arguably showed defendant ?entertained serious doubts about the truth of the phone call?).

Similarly, plaintiff alleges defendants acted with actual malice because they republished the Article…. The amended complaint asserts defendants republished the Article by tweeting links to it…. This argument fails both factually and as a matter of law. Publishing a link to an existing story is not a republication of the story…. Even if tweeting links to the Article constitutes republication, the cases plaintiff cites are inapposite here.

For what it’s worth, the judge also makes a brief mention of the language that Biss used in the lawsuit to smear Lizza, regarding some rumors that went around about him. We had pointed out earlier that these claims seemed much more “defamatory” than anything Lizza wrote about Nunes. Lizza’s lawyers had asked the court to strike those statements from the motion, which the court denies as moot (since the whole case is being tossed) but does note:

The Court notes, however, the material identified by defendants … is immaterial, impertinent, and scandalous. Plaintiff?s personal attacks on Lizza have no bearing on this case. This is apparent because plaintiff never refers to the challenged allegations in resisting defendants? motion to dismiss. The allegations likewise are prejudicial to Lizza and have criminal overtones.

The one annoying part of the ruling has to do with anti-SLAPP laws. Even though, as noted, Iowa has no anti-SLAPP law, Lizza and Hearst sought to say that California’s strong anti-SLAPP law should apply (seeing as any reputational damage to Nunes would occur in California). The court rejects that on procedural grounds, saying that standard 12(b)(6) motion to dismiss procedures (and other rules of federal civil procedure) “pre-empt” California’s anti-SLAPP law, since they grant the same basic protections in getting cases tossed out early. That’s an argument that comes up frequently in anti-SLAPP cases. And while it’s true that a motion to dismiss can — at times — serve a similar purpose to an anti-SLAPP motion to strike, there are important procedural differences that protect free speech, including the attorney’s fees award that goes along with most anti-SLAPP laws, including California’s. Unfortunately, here, the court says that cannot apply.

This is yet another reason why we absolutely need a federal anti-SLAPP law with fee shifting as part of it. Still, overall, this is a good, clean ruling rejecting one of Nunes’ silly SLAPP suits. This result was inevitable, but still created a nuisance — which likely was the intent all along.

Filed Under: 1st amendment, anti-slapp, california, defamation, devin nunes, esquire, free speech, iowa, opinion, ryan lizza, slapp, slapp suit, steven biss