How to cite to Walter Sobchak

October 11, 2014

If you don’t know what the deal is with prior restraint, here, watch:

There. Simple. Right?

THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!

I wish I could just submit that clip to the next judge who even considers granting one. Just hold up a chromebook with that on it, play it, drop it on the floor, and walk out.

Dudeists have known this since 1998, and even most Dudeists were a bit late to the party.

I suppose that should not complain about misguided souls trying to get prior restraints.

If they stopped, I might actually have to find a less enjoyable way to make a living than being able to stand there with my arm around the Constitution, channelling Walter Sobchak. There is not much more career-choice-affirming than that.

Nevertheless, one after the other, they keep on coming — defamation plaintiffs who think that they’ve found the magic bullet that gets them a prior restraint. Hell, sometimes they even convince judges to grant them – which is even more awesome, because it then gets me a chance to get an appellate decision slapping it down.

In fact, I secretly hope that I will lose every prior restraint argument before the trial court. In 99% of those cases, the judge should look at the plaintiff and say “are you out of your fucking mind? Your motion is denied. THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!”

Well what fun is that? I guess it would be fun as all hell if the judge actually did that.

But, when they get slapped down for being dumb, it helps get the word around to other judges who haven’t heard about this new thing called The First Amendment. I Each time a judge gets reversed for granting a prior restraint – which is exactly every fucking time unless the speech is about secret troop movements, it could help the next dumbass who managed to get elected to the bench. It could also help lawyers with this other new thing called “client control.”

I, myself, represent an occasional defamation plaintiff or two. Plaintiff’s side cases can be fun. But, they always start with the discussion about prior restraint.

The conversation that goes sorta like this:

Client: “I want a preliminary injunction in my defamation case.”

Me: “Wrong country, dude.”

Client: “Come on, at least try

Me: “FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT! So, no. No. No. No. I’m not even gonna fucking try. You know why? Because it is stupid. Stupid. Stupid. Stupid. I may not be the smartest lawyer in the world, but I’m not stupid enough to seek a prior restraint. You want an injunction, go hire another lawyer who is willing to look like an idiot and waste your money. After he gets his ass handed to him, come back and I’ll handle your case competently, not like the fuckwit that you finally arrive at after you get to the bottom of the barrel, and then dig your way through the wood to the other fucking side of the barrel, now shut the fuck up about an injunction or get out of my fucking office and take your retainer check with you!

MARK IT ZERO!”

Client: “Ok, ok… just take it easy, man.”

Me: “I’m perfectly calm, dude.”

Client: “Just take it easy.”

Me: “Calmer than you are.”

Now on the other hand, when I get a defense case where there is a prior restraint? Then I get all happy. The first draft of my opposition inevitably has the Walter Sobchak quote in it. But, it always gets taken out. Citing to a fictional character just doesn’t seem like the right call when you’re making a serious point.

The Big Lehrmann

The Big Lehrmann

Not anymore.

Friends, Americans, Dudeists: We have arrived. Justice Debra H. Lehrmann of the Texas Supreme Court gave footnote 7 in Kinney v. Barnes, 57 Tex. Sup. J. 1428 (Tex. 2014).

The U.S. Supreme Court has long recognized that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” … This cornerstone of First Amendment protections has been reaffirmed time and again by the Supreme Court, this Court, Texas courts of appeals, legal treatises, and even popular culture(7). (citations and other footnotes omitted)

And that “7” brings us to this… get a handkerchief, because you’re gonna weep.

The Big Lebowski (PolyGram Filmed Entertainment & Working Title Films 1998) (“For your information, the Supreme Court has roundly rejected prior restraint.”).

Now, of course, The Big Lehrmann (as she shall now be known) can get away with citing it that way. But, I can’t see a trial court in Muskegon, Des Moines, or even Los Angeleez going for that. But, The Big Lehrmann now gives us the respectability and acceptance that Constantine once gave to the early Christians.

So now, I’ll tell you how to cite this. And before you trot out the bluebook, fuck the bluebook.

The next time you are arguing against a prior restraint, this is how you cite to the wisdom of Sobchak:

Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998).

This affects all of us man.

Our basic freedoms!

—-

UPDATE: I personally use the “small caps” option when citing. But, wordpress does not seem to have that option.

Related: The post that inspired this one, How to cite to Buzz Lightyear.


This is what happens when you find a stranger in the Alps

April 23, 2014

This is a pretty familiar story line. A businessman wants to open a strip club. Some members of the local community decide that they do not want that kind of thing in their town. The resistance is usually faith-based (which is where the wheels really come off). I fail to understand how anyone can believe in a supreme being, who created all of heaven and earth, but would be upset at some boobies.

The City this time is Destin, Florida. As reported in their local paper, it seems that the driving force behind the attempt to keep the strip club out of town was “ a vocal group of citizens determined to keep an adult entertainment establishment away from a nearby neighborhood and church.” (source)

The strip club sued, under the theory that the city’s attempts to drive them out of town was a violation of their First Amendment rights. And, after spending $300,000 in attorneys’ fees, the city finally backed down – and paid the strip club owner $2.1 million for his First Amendment rights. There will be no strip club, so the zealots can be happy. But, the money to pay the settlement comes out of the City of Destin’s taxpayers’ pockets.

Dollars to cover the buyout will come from the city’s $5.2 million unassigned fund balance, putting a serious dent in reserves accumulated over the years to use in emergencies. (source)

So almost half of the city’s reserve fund gone. I wonder if the churches will give up some of their tax exempt status to help replenish the fund.

Congratulations to First Amendment Lawyer, Gary Edinger, who was lead counsel for the strip club in this case.


Judge Admonishes Expert Witness – Expert Witness Sues Blogger Who Reported On It

April 17, 2014

By Marc J. Randazza

When a New York Supreme Court Judge told Dr. Michael Katz, the medical expert for the defense in a personal injury case, that he was lying about the medical examination he conducted, Dr. Katz knew the judge was wrong. So, of course, Dr. Katz responded as any aggrieved professional would – he filed a lawsuit. Because suing the judge who called him a liar would be an exercise in futility, Dr. Katz did what he believed to be the next best thing: He sued a blogger who covered the case — a blogger who reported on the judge’s comments, as enshrined in the public record.

Dr. Katz’s complaint is the latest in a long line of sad examples why New York – and every other state – needs a meaningful Anti-SLAPP statute. The 65-page, 338-paragraph long complaint, seeking $40,000,000 in damages, is like something out of the twilight zone. Dr. Katz’s claims are vague and overbroad, including defamation (with particular emphasis on “defamation by implication” – see paragraphs 247-248), injurious falsehood, tortious interference with contract, tortious interference with business advantage, and prima facie tort – a claim that litigants throw against the wall in New York in hopes that it will stick when all their other allegations fail.

Dr. Katz’s complaint makes a headcharge at the fair report privilege, one of the fundamental protections that the First Amendment provides to citizens and the media – including bloggers. New York specifically memorializes this protection in Civil Rights Law § 74, precluding any cause of action for defamation for a “fair and true” report of “any judicial proceeding” or “other official proceeding.”

The blog posts authored by Eric Turkewitz and Samson Freundlich, his co-defendant, are reports of shocking judicial proceedings; in fact, they link to the transcripts of the proceedings themselves. But, linking to the source of your facts is enough to get you out of defamation trouble. See Adelson v. Harris.

So, okay, Civil Rights Law § 74 only applies to reporting on the proceedings – what about statements during the proceedings? Once again, Dr. Katz needs to check his privilege. New York’s litigation privilege provides an “absolute privilege” to parties, attorneys, and witnesses for their statements in the course of a judicial proceeding, “notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding.” Bisogno v. Borsa, 101 A.D.3d 780, 781, (2d Dept. 2012), citing Kilkenny v. Law Off. of Cushner & Garvey, LLP, 76 A.D.3d 512, 513 (2d Dept. 2010). Even if in the wildest of alternate realities the defendants intentionally defamed Dr. Katz, their statements during the proceeding would still be protected so long as they “may possibly be pertinent” to the underlying litigation. Lacher v. Engel, 33 A.D.3d 10, 13 (1st Dept. 2006).

Setting aside these privileges and getting down to the truth of the matter, which is an absolute defense to defamation, this litigation is about Dr. Katz’s self-inflicted injuries. After all, it was Dr. Katz’ (testimony at 6:8-10)that the Court opined upon. This testimony, in particular, in which he can’t remember how long a medical examination took.

But there’s a video…

Based on the discrepancy between Dr. Katz’s claims and his actions, Judge Hart was not pleased. As Judge Hart said, “I cannot blame Dr. Katz for the ills of the world, but I can blame him on this case.” (source at 6:18-20) But, now there is another case where Dr. Katz is to blame.

If Dr. Katz dared to file suit in Nevada, California, Oregon, or a growing number of other states with meaningful anti-SLAPP statutes, his litigation campaign would likely end post haste. It would be thrown out of court, and the judge would bruise his ego in the shape of the defendants’ attorneys fees and costs. But this is not California, or even Nevada – it is New York. Without meaningful relief, we are left only with the disinfectant of cleansing light shone upon those who file such censorious lawsuits.

Of all the things mentioned about this complaint, by far the most shocking is that it was not filed pro se (i.e., filed without an attorney). In fact, it was filed by John Sullivan, an experienced partner with Ruskin Moscou Faltischek P.C., an astonishingly large firm to take on such a questionable case. The firm should have known better, and had higher regard for the First Amendment. On the other hand, pecunia non olet? For an angry Doctor to file this lawsuit on his own would have been foolish, but comprehensible on some level. For an attorney to sign off on this frontal attack on free comment upon the public record – and ultimately, the public record itself – goes beyond that. Dare I use the adjective — rakofsky-esque?

One thing is certain – this case is doomed to fail. Another thing is certain – this case will not be to Dr. Katz’ advantage. Anyone who was considering him as an expert witness will now be treated to a lawsuit-amplified bullhorn reading of what the judge thought of him and his testimony.

Poorly played, Dr. Katz.


Bloggers are protected as “Media” – Comins v. VanVoorhis (Chapter 2)

April 13, 2014

It’s an all-too-common scenario: A blogger criticizes someone online, and then gets sued for his statements.   But two things make this case unique: First, the plaintiff sued because of the blogger’s characterizations of him shooting two dogs at close range; second, the defendant blogger was in Florida – and thus protected by Fla. Stat. § 770.01. (I am proud to have represented Mr. VanVoorhis, the blogger in this case).

Florida’s pre-suit notice statute, § 770.01, requires defamation plaintiffs to alert defendants to the allegedly defamatory material before filing suit. The statute reads, in its entirety:

770.01 Notice condition precedent to action or prosecution for libel or slander.

Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory

Florida’s appellate courts have interpreted this very strictly. Essentially, the statute doesn’t let you sue someone (as long as they are covered by the statute) unless you meet its conditions. It has a tendency to relieve courts of the burden of at least some frivolous defamation litigation, because the statute requires a defamation plaintiff to focus his attention on what, precisely, he finds to be defamatory and to articulate his concerns in writing. Theoretically, we must presume that such an exercise generates at least some self-reflection by parties and attorneys who might otherwise file unsupportable SLAPP suits.

The fact that 770.01 applies to newspapers and periodicals has never been challenged. When the legislature added “other medium” to the statute in 1976, I think it was being forward-thinking in trying to make the statute broad enough to embrace new media that might come into being. I always felt that “other medium” was clear enough. The Internet is a “medium,” so why shouldn’t 770.01 protect bloggers? We raised that issue at the trial court in this case, and the court gave us a pretty succinct ruling in our favor. (Trial Court Order).

Comins appealed, and he took the position that the words “other medium” did not extend to the Internet, and even if it did, it would only apply to news media. (Appellant’s brief at 14-15). Comins further argued that even if it extended to the Internet, Mr. VanVoorhis was not a “media defendant,” since he was not “a journalist.”

We argued that the language “or other medium” includes the Internet, and most certainly includes blogs. (Answer Brief). In fact, we took the position that the statute should apply to everyone, media, non-media, or anyone else. (The court did not hold that broadly). However, we also argued that no matter how the court looked at the scope of 770.01, it should apply to our client, because he was a “media defendant,” despite the fact that he “only” published on a blog.

The essential point, which the appellate court agreed with, is that a “journalist” is not something you are but is rather something that you do. Mr. VanVoorhis’ blog was journalism, and thus he was considered to be a “media defendant.” In agreeing, the appellate court gave us some wonderful language supporting the proposition that bloggers serve an essential function.

[I]t is hard to dispute that the advent of the internet as a medium and the emergence of the blog as a means of free dissemination of news and public comment have been transformative. By some accounts, there are in the range of 300 million blogs worldwide. The variety and quality of these are such that the word “blog” itself is an evolving term and concept. The impact of blogs has been so great that even terms traditionally well defined and understood in journalism are changing as journalists increasingly employ the tools and techniques of bloggers – and vice versa. In employing the word “blog,” we consider a site operated by a single individual or a small group that has primarily an informational purpose, most commonly in an area of special interest, knowledge or expertise of the blogger, and which usually provides for public impact or feedback. In that sense, it appears clear that many blogs and bloggers will fall within the broad reach of “media,” and, if accused of defamatory statements, will qualify as a “media defendant” for purposes of Florida’s defamation law as discussed above.

There are many outstanding blogs on particular topics, managed by persons of exceptional expertise, to whom we look for the most immediate information on recent developments and on whom we rely for informed explanations of the meaning of these developments. Other blogs run the gamut of quality of expertise, explanation and even- handed treatment of their subjects. We are not prepared to say that all blogs and all bloggers would qualify for the protection of section 770.01, Florida Statutes, but we conclude that VanVoorhis’s blog, at issue here, is within the ambit of the statute’s protection as an alternative medium of news and public comment.

The presuit notice requirement of section 770.01 applies to allegedly defamatory statements made in such a public medium the purpose of which is the free dissemination of news or analytical comment on matters of public concern.(Op. at 23-24)

In other words, if a blog is a legitimate news source, it is just as protected as if it were The New York Times.

But, the court did not go so far as to say that everyone gets protection under the statute, and not every blog is a member of the media. There are certainly blogs out there that have different missions, and those would not be covered.

This is a great decision for bloggers, especially those who might find themselves under the threat of a defamation suit in Florida.

As a practice note, I have often said that filing a defamation claim in Florida without sending a 770.01 notice should be per se legal malpractice. The simple exercise of sending a letter, where you articulate your legal theory, should be no great burden on any plaintiff. This case should make that clear. We certainly believed (and argued) that the defense should have prevailed on the merits. See Answer brief at 36-68. However, neither the trial court nor the appellate court ever looked at the merits — since the claims were barred completely by the plaintiff’s failure to comply with the simple exercise of sending a pre-suit letter.

Conversely, if you’re defending a blogger in Florida, do not fail to raise the 770.01 issue at the pleading stage. While it may be more satisfying to prevail on the actual merits of the case, this route is a lot easier and cheaper than a trial on the merits.

Case Documents:

    Comins Appellant Brief

    Van Voorhis Answer and Cross-Appeal Brief

    Comins’ Reply and Cross-Appeal Opposition

    Van Voorhis’ Cross-Appeal Reply Brief

    Appellate Court Opinion


Law Enforcement Priorities

April 13, 2014

I’ve been involved in the debate over whether we should criminalize “revenge porn.” As much as I despise the practice, I don’t agree with new criminal laws to punish it. In fact, I just spent some time on a panel at Stanford Law School, in the company of three people I greatly admire — one of whom (Attorney Erica Johnstone — one of the founders of “Without My Consent“) is a strong proponent of enacting new criminal laws to punish “Non-Consensual Porn.”

We had a very respectful debate over our differing opinions. During that discussion, I shared one of my rationales — that law enforcement just won’t give a shit. I’ve personally spoken with prosecutors about revenge porn cases in which the victim is underage — so a bona fide child pornography prosecution, wrapped up in a nice little bow for them. All they need to do is go grab the perpetrator.

The reaction?

“We just don’t have the resources to go after every one of these guys.”

Ok, fair enough. A 14 year old girl who had her life thrown upside-down. A child who expected that the state might give a shit about her. She’s not a priority. I’m not going to shit on law enforcement for making that judgment call, although that might seem to be a proper reaction. Lets look at it this way — that 14 year old girl had her life thrown upside down, but somewhere maybe, there’s an 8 year old girl tied up in a basement, and they need the resources they have in order to go save her. Fair enough?

But then, if that’s our rationale for ignoring the 14 year old, how are we ever going to convince a detective or a prosecutor to go after the ex-wife of a 35 year old guy who might wind up on an Non-Consensual Porn website, because his ex got pissed off at him and submitted some cock shots to the latest NCP site?

We aren’t.

When I get interviewed about this kind of thing, I often mock our law enforcement priorities – stating “If there were some underage kids drinking, or an old lady smoking pot for her glaucoma, they’d send in the troops. But, not for this kind of thing.”

Yeah… exactly. Swat teams for small amounts of marijuana, which never hurt anyone. Meanwhile, the kids I represent in civil cases can’t get law enforcement to give a shit about them, because resources.

You know, resources spent going after middle aged women who are buying plant food – because sometimes you might catch someone with a little bit of weed. (One of many sources)


Happy 50th Birthday, New York Times v. Sullivan

March 9, 2014

By Reed Lee, Esq.

Today rings in the 50th anniversary of the SCOTUS decision in New York Times v. Sullivan. In my view, this was the single most important free speech case the United States Supreme Court has ever decided. Alexander Mieklejohn described the Sullivan decision as “an occasion for dancing in the streets.” I would like to suggest its 50th anniversary as an occasion for reflection on some of its most powerful words, which encapsulate its meaning:

Thus, we consider this case against the background of a 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.

We might reflect even more on the underlying “pre-suppos[ition] that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection.” As Judge Hand once famously put it: “To many this is, and always will be folly; but we have staked upon it our all.

I sometimes travel in circles where it is fashionable to have nothing good to say about a status quo power like the United States. But I’ve walked out of courts having represented clients who admitted shouting “fuck the police” but were acquitted because they personally did not throw the bottle at the cop.

A government and a legal system built on the propositions that the sole legitimate purposes of government is to protect individual rights and that all government derives its just powers from the consent of the governed gives us a great deal of room to argue for–and to often obtain–results which are the envy of the oppressed everywhere.

That’s worth remembering every once and awhile. Not perfect, to be sure; and that’s why the struggle continues.


Fourth Circuit Delivers First Amendment Ass-Kicking

June 28, 2013

By J. DeVoy

This is not a Star Trek order.  There are no pithy jokes here.  There is, however, a shocking exposé of just how insidious the government can be in coercing silence when you speak out against outdated, incorrect, and even dangerous “conventional wisdom.”

Cooksey v. Futrell, et al., Case No. 12-2084, 2013 WL 3215240 at *1 (4th Cir. June 27, 2013).

Steve Cooksey ran a blog advocating a low-carbohydrate, high-protein diet.  This diet and its permutations are generally known as known as a “paleo,” “primal” or “caveman” diet, and is based on eliminating historically recent additions to the human diet, such as processed grains.  This more or less inverts the USDA’s food pyramid (or triangle, depending on what generation you are), putting meat at the base of the pyramid with rough, leafy greens, and treating carbohydrate-laden foods like bread as less important.  Like anything people feel strongly about, the ambassadors of the paleo diet can be abrasive and annoying.  But, it works.

Cooksey’s backstory is remarkable, but surprisingly common among health advocates.  A Type II (adult-onset) diabetic, Cooksey was rushed to a hospital on the verge of a coma in 2009.  His dietitians advised him to eat a diet high in carbohydrates.  Cooksey, however, investigated matters himself and arrived at a diet high in protein and low in carbohydrates.  His blood sugar normalized and he was able to stop using insulin.  With a combination of diet and exercise (rather than, say, “fat acceptance”), Cooksey lost 78 pounds and felt better than ever before.

Paying it forward, Cooksey opened his blog, diabetes-warrior.net, in early 2010.  Cooksey used the blog to talk about his diet and lifestyle changes. He even included a disclaimer that he was not a licensed medical profession and had no medical qualifications – similar to how legal bloggers are quick to reminder readers that nothing they say online is legal advice.  The overarching theme of Cooksey’s blog was that high-carbohydrate diets caused more diabetes.  During the months of December 2011 and January 2012, Cooksey’s blog had 20,000 unique visitors.

Then Cooksey made the mistake all new red-pill types do: He explained his views to a weak and deliberately helpless public.  In July 2012, Cooksey attended a nutritional seminar for diabetics.  The seminar’s speaker advocated a high-carbohydrate diet for diabetics; Cooksey responded by advocating a low-carbohydrate diet instead.  An attendee at the seminar was so “””offended””” that he or she reported Cooksey to the North Carolina Board for Dietetics/Nutrition (the “Board”), claiming Cooksey’s advocacy was actually the unlicensed practice of dietetics.  Under North Carolina law governing dietetics, only licensed dietitians may provide nutrition care services, which have a broad definition that includes:

a. Assessing the nutritional needs of individuals and groups, and determining resources and constraints in the practice setting.
b. Establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and constraints.
c. Providing nutrition counseling in health and disease.
d. Developing, implementing, and managing nutrition care systems.
e. Evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition services.

Under North Carolina law, each and every act of unlicensed practice of dietetics is a separate misdemeanor.

The Board contacted Cooksey.  It told him that he would need to change his website.  It also told him that it was statutorily entitled to get an injunction against him.  Cooksey, fearing civil action, reluctantly complied with the Board’s initial demands to change his website, removing parts that might have been considered “advice” to visitors.

The Board told Cooksey it would review his website and tell him what he could and couldn’t say without a dietitian’s license.  After reviewing Cooksey’s site, the Board got back to him with pages and pages of comments.  The Board’s message was clear: Fix it – or else.  Again, Cooksey acquiesced – this time in fear of civil and even criminal penalties.  Despite not communicating with the Board, it nevertheless sent Cooksey a letter, noting that he had made the requested changes, and tacitly warning Cooksey that it would “continue to monitor the situation.”

After receiving this letter, Cooksey filed suit under 42 U.S.C. § 1983 for the Board’s actions chilling his First Amendment protected speech.  He also sought a declaratory judgment that North Carolina’s statutes were unconstitutional both facially and as-applied.  The Board moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of standing and lack of ripeness, and 12(b)(6) for failure to state a claim.  The district court granted the motion, holding that “voluntarily removing parts of one’s website in response to an inquiry from a state licensing board is not a sufficient injury to invoke Article III standing.”  The court also found that Cooksey was not subject to actual or imminent enforcement of the Board’s draconian laws.

At first blush, it seems that the district court took an unusually charitable view toward the Board’s actions.  Many who read this blog would disagree with the outcome.  Cooksey disagreed.  And so, too, did the United States Court of Appeals for the Fourth Circuit.

The Fourth Circuit’s panel – which included former United States Supreme Court Justice Sandra Day O’Connor sitting by designation – reviewed the dismissal de novo, or anew (conducting a new, independent analysis of the facts that were before the district court).  The Court of Appeals embarked on an analysis of justiciability with two old law school (and in one case, law practice) favorites, standing and ripeness.  The analysis is considerable, going on for many pages.  Some highlights are excerpted below:

On the question of standing:

In First Amendment cases, the injury-in-fact element is commonly satisfied by a sufficient showing of “self-censorship, which occurs when a claimant is chilled from exercising h[is] right to free expression.” Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011) (internal quotation marks omitted).

However, this anticipated cannot just be speculative or the fruit of conjecture.  The appeals court quickly outlined how Cooksey’s case allowed him to have standing, largely due to the Board’s aggression:

In the present case, we not only have evidence of specific and — unlike NCRL — unsolicited written and oral correspondence from the State Board explaining that Cooksey’s speech violates the Act, but we also have a plaintiff who stopped engaging in speech because of such correspondence, and an explicit warning from the State Board that it will continue to monitor the plaintiff’s speech in the future. See J.A. 18 (Compl. ¶ 63-64) (Burill told Cooksey “that he and his website were under investigation” and that the State Board “does have the statutory authority to seek an injunction to prevent the unlicensed practice of dietetics.”); id. at 39 (red-pen review) (“You should not be addressing diabetic’s specific questions. You are no longer just providing information when you do this, you are assessing and counseling, both of which require a license.”); id. at 66 (Burill email) (“[W]e would ask that you make any necessary changes to your site, and moreover, going forward, align your practices with the guidance provided.”); id. at 105 (Burill letter) (“[T]he Board reserves the right to continue to monitor this situation.”). Therefore, we have no trouble deciding that Cooksey’s speech was sufficiently chilled by the actions of the State Board to show a First Amendment injury-in-fact.

The Board’s aggression was also helpful to Cooksey in showing a credible threat of prosecution.  From there, his complaint easily satisfied the requirements of causation – that his injury was caused by the conduct he complained of – and redressibility, which requires a non-speculative likelihood that his injury would be redressed by a favorable judicial decision.

Unfortunately, the opinion gave some daylight to the Board’s position.  If the laws the Board enforces are professional regulations that do not abridge the First Amendment, such as certain limited limitations placed on attorney speech by state professional conduct rules, then Cooksey may ultimately not prevail.  However, because that is question of the case’s merits – how the facts and the law mesh in court – rather than one of standing, or Cooksey’s ability to bring his claim to Court in the first place, this potential defense cannot keep Cooksey out of court (for now).

As for ripeness:

Much like standing, ripeness requirements are also relaxed in First Amendment cases. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995) (“The primary reasons for relaxing the ripeness analysis in th[e] [First Amendment] context is the chilling effect that potentially unconstitutional burdens on free speech may occasion[.]”). Indeed, “First Amendment rights . . . are particularly apt to be found ripe for immediate protection, because of the fear of irretrievable loss. In a wide variety of settings, courts have found First Amendment claims ripe, often commenting directly on the special need to protect against any inhibiting chill.” Id. (internal quotation marks omitted).

The Court then gave the Board a little more abuse for soiling its own bed.

In the same way, Cooksey’s claims present the question of whether the Act and actions of the State Board unconstitutionally infringe on Cooksey’s rights to maintain certain aspects of his website. No further action from the Board is needed: it has already, through its executive director, manifested its views that the Act applies to Cooksey’s website, and that he was required to change it in accordance with the red-pen review or face penalties.

In its conclusion, the court of appeals vacated the district court’s order dismissing Cooksey’s complaint and remanded the case for a proceeding on the merits.  The Board can always ask the Fourth Circuit to stay its mandate and grovel with thousands of others to be the 1% whose cert petition the Supreme Court grants.  If nothing else, it will buy them time.  Hopefully, this opinion will leave a mark on the Board and make abusive government entities everywhere think twice before making any “suggestions” to the lowly citizenry they benevolently manage.  Specifically for the Board, its bad dream just got another life, Freddy Krueger-style.

A closing thought: North Carolina does not have an Anti-SLAPP law – not even a mediocre one that could be made good, like Nevada’s (which, starting October 1, 2013, gets a nice octane boost).  While § 1983 claims allow prevailing non-governmental parties to seek their attorneys’ fees under § 1988(b), those fees are discretionary, while prevailing Anti-SLAPP fees are mandatory – and more expeditiously awarded.  While state law-based Anti-SLAPP laws do not always work as drafted in federal court, there is a serious question whether such a statute’s existence or use would have led to a different outcome without an appeal – or any litigation at all.


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