If the speech can’t be taken seriously, it can’t support a claim for defamation

A law professor who never had a frigging job reacts to the recent decision -- 'but this destroys my whole publication agenda!'

In Gardner v. Martino, the 9th Circuit handed down an important ruling that should be required reading for any opportunist looking to turn any crybaby’s hurt feelings into a defamation suit payday.

Tom Martino is a talk radio host who is prone to make the kinds of statements we expect from talk radio. He is hyperbolic, outspoken, rude, crude, and crass. One day he had Melissa Feroglia on the air. Feroglia was a disgruntled consumer who had a bad experience with Mt. Hood Polaris and complained about a jet ski she bought there and some apparently dishonest customer service she received. The dealer chose to file a defamation suit.

Martino filed a motion to dismiss under the Oregon Anti-SLAPP statute, Or. Rev. Stat. § 31.150. The lower court dismissed the claim, so Mt. Hood Polaris appealed to the 9th Circuit. The 9th reaffirmed that there must be some kind of damage to the plaintiff’s reputation before a defamation claim may properly lie. As a matter of law, it is up to the judge to determine if damage could be possible by examining the speech itself, since loose hyperbolic language is not capable of a defamatory meaning.

In Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir. 1990), we held that the threshold question after Milkovich in a defamation claim is “whether a reasonable factfinder could conclude that the contested statement implies an assertion of objective fact.” If the answer is no, the claim is foreclosed by the First Amendment. (Op. at 4834)

The 9th then analyzed the talk show itself.

The Tom Martino Show is a radio talk show program that contains many of the elements that would reduce the audience’s expectation of learning an objective fact: drama, hyperbolic language, an opinionated and arrogant host, and heated controversy. (Op. at 4836)

As a result, even if the statements made were capable of a defamatory meaning in a vacuum, the proper analysis is to look at the context in which they are made – and then determine if a reasonable reader would interpret them as statements of fact. In this case, the court held that a reasonable listener would not — therefore, no defamation.

Over at Simple Justice, Greenfield connects the dots between the absurd Cyber Civil Rights Crybaby Fest and the 9th Circuit’s ruling in Gardner v. Martino.

Hurtful though it may be, if it isn’t credible, it can’t be slander. While no one has (yet) claimed that Talk Radio is a civil rights issue for women, it clearly has a greater impact based on its far broader audience reach and far greater credibility than anonymous comments on Auto-Admit. And yet it is incapable of giving rise to actionable slander because it is what every reasonable person knows it to be: Hyperbolic commentary intended to feed the bias of its audience, with little concern for truth or accuracy.

The call to record and maintain the identities of these anonymous attackers is based upon the need to identify the miscreants so that the victims can go after them. But go after them for what? If Talk Radio doesn’t give rise to slander for lack of credibility, then how could an anonymous, baseless attack on a website be held sufficiently credible to maintain a slander action? It can’t, and it never should. It is not credible. It was never credible. There may be many hurt feelings, but there is no slander.

It occurs to me that rather than try to reconstruct the problem of anonymous nastiness and attacks as a womens rights issue to gain rhetorical and political advantage, and use it to seek legislation to curtail everyone’s free speech and shift liability to third parties by making them part of the cyber police patrol, the efforts would be far better spent pounding home the point that anonymous attacks online are worthless, incredible crap, and people who post them are the idiots of this cyber village. (source)

It is pretty rare that a legal theory is proven (or disproven) by a court so resoundingly and so quickly. However, as Greenfield previously identified — the liberal academic circle jerk isn’t interested in anything but applying lotion to one another. Fortunately, those of us who actually represent clients and deal with judges keep up on this kind of thing.

Orlando Police Chief vs. The First Amendment

Val Demings:
First she lost her gun. Then she lost all sight of what 'uphold and defend the Constitution' means.

by Marc J. Randazza

There aren’t too many elected officials in Flori-duh that I respect. Orlando Police Chief Val Demings, used to be one of the select few. She hasn’t done a perfect job, and had a particularly embarrassing incident in which her gun was stolen. Nevertheless, my general impression of her has been that she is competent and ethical.

Not anymore.

Val Demings vs. the First Amendment

The Orlando Sentinel reports that Demings is threatening to sue an Orlando resident for creating a website that criticizes her performance in office.

Valdemings.com is run by Ezell “Easy” Harris, a frequent critic of Demings’, and contains a disclaimer stating the chief has no association with the site.

Demings’ attorney, Griffith J. Winthrop III, accuses Harris in an April 17 letter of “maligning” and defaming the chief. The letter also says Harris violated the law by using her “persona” and identity and claims Harris’ behavior is “malicious.”

Demings is demanding that the Web site be taken down and threatens to sue Harris if he refuses. (source) (links added)

Harris refused to take down the site – correctly claiming that he is “simply exercising his First Amendment rights.” However, Winthrop (Demings attorney) says that Harris is portraying Demings in a “false light.”

Winthrop would not elaborate on Demings’ claims or the logic behind them. He said he prefers to argue the matter in court. (source)

Poor Mr. Winthrop. When you represent a public figure and threaten a citizen for criticizing that public figure, you have to go to two courts — one being the court of public opinion. Winthrop and Demings need to simply back out of this hole slowly, apologetically, and contritely. If Winthrop does get a chance to argue this matter in court, it isn’t going to end well for his client.

I get a funny feeling that Mr. Winthrop and Ms. Demings are about to learn some valuable lessons about defamation law and litigation public relations. In fact, I’ll provide some here, free of charge.

Litigation Public Relations 101: The Streisand Effect

Shoulda kept your trap shut, Babs.

Once upon a time, Kenneth Adelman posted aerial photos of Barbara Streisand’s home on the intertubes. Streisand got all Barbara on him and sued him for $50 Million. Before the suit, almost nobody had seen Adelman’s website. The lawsuit generated so much attention that millions of people hit his site and the photo was picked up by the AP as newsworthy. Barbara’s tantrum caused the exact opposite effect that she had hoped for.

Just watch, as this story grows legs, how much traffic floods in to valdemings.com.

As of April 26, 2009 at 6:45 AM, valdemings.com had 1572 hits. I wonder how few it had before Winthrop sent his inadvisable letter. Lets see how many it gets over the next few weeks, because the blawgosphere is going to have a field day with this.

Why will the blawgosphere have a field day with this? Aren’t Demings’ claims supportable?

No they aren’t.

I don’t usually prefer to slam the lawyer in cases like this, but Winthrop is really asking for it.

“Truth is not always a defense,” Winthrop said. “I hope he [Harris] gets himself a really good lawyer,” he said. (source)

Even this guy has heard of New York Times v. Sullivan

The last thing that Winthrop should hope for is for Harris to get a “really good lawyer.” Even a half-assed moron of a lawyer would know that Demings’ claims are unsupportable, and that Winthrop is completely off-base. In Massachusetts, truth isn’t necessarily a defense to a defamation action — if the speech is on a matter of private concern. Here in Florida, Winthrop is dead wrong. Whoever taught this guy defamation law should be fired.

Defamation Generally

In order to sustain a cause of action for defamation in Florida, the Plaintiff must show, at a minimum, that there were:

1. False statements of fact;
2. Published to a third person;
3. Which caused damage to the Plaintiff.

Without those essential elements, there is no defamation. See, e.g. Valencia v. Citibank, 728 So.2d 300 (Fla. 3d DCA 1999); Cape Publications, Inc. v. Reakes, 840 So.2d 277, 279-80 (Fla. 5th DCA 2003); Linafelt v. Beverly Enterprises-Florida, Inc., 745 So.2d 386, 388 (Fla. 1st DCA 1999); Smith v. Cuban Am. Nat’l Found., 731 So.2d 702, 705 (Fla. 3d DCA 1999).

Defamation of Public Figures

As a public figure, Demings must prove the same elements shown above, but she will also have to prove “actual malice” on Harris’ part. While Demings may believe that this term fits, “actual malice” has a precise legal meaning, i.e.; known falsity or a reckless disregard for the truth. See New York Times v. Sullivan, 376 U.S. 254 (1964):

[There is] 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.

The purpose of the First Amendment is to ensure the unfettered exchange of ideas among the American people. See Roth v. United States, 354 U.S. 476, 484 (1957). Florida courts have held that the First Amendment requires neither politeness nor fairness. See Pullam v. Johnson, 647 So.2d 254, 258 (Fla. 1st DCA 1994); Mile Marker Inc. v. Petersen Publ’g LLC, 811 So.2d 841, 845 (Fla. 4th DCA 2002). Moreover, the Plaintiff must prove the actual malice element by clear and convincing evidence. Id.; Friedgood v. Peter’s Publishing Company, 521 So.2d 236, 239 (Fla. 4th DCA 1988).

In other words, Winthrop couldn’t have his defamation law more backwards. If his client thinks that she can bring a defamation action on these facts, she is in for a rude awakening. Not only is truth a defense, but even if Harris’ website does contain defamatory falsehoods, Demings’ case should not survive a motion to dismiss. Given that she is a public official, Demings would need to prove by clear and convincing evidence that Harris published false and defamatory statements while knowing them to be false, or while subjectively entertaining serious doubts as to the truth of the publication. New York Times v. Sullivan, 376 U.S. 254. Fortunately for Harris, all the statements on his website appear to be republications from other news sources or facts gathered from the public record.

What About “False Light”?

Winthrop doesn’t only allude to a defamation action, but claims that “truth is not always a defense,” and that Harris portrayed his client in a “false light.” I guess Winthrop can be forgiven for not knowing that this is a cause of action that no longer exists in Florida. Well, maybe not. But, lets cut the guy some slack. In all fairness, that has only been the state of the law for the past five months. Of course, every other lawyer in Flori-duh knows this, but maybe he was on vacation in the Andes or something.

Florida’s Anti-SLAPP Law

Florida has a particularly weak anti-SLAPP statute (SLAPP stands for Strategic Lawsuits Against Public Participation). However, if Demings brings this suit, it could be one of the select few cases that actually fall under § 768.295, Fla. Stat. (2008) – the Citizen Participation in Government Act. This statute provides as follows:

No governmental entity in this state shall file or cause to be filed, through its employees or agents, any lawsuit, cause of action, claim, cross-claim, or counterclaim against a person or entity without merit and solely because such person or entity has exercised the right to peacefully assemble, the right to instruct representatives, and the right to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution.

If the demand amounts to more than mere chest-thumping, and Demings does actually bring a suit against Harris, this statute should apply. Harris would then be entitled to an expeditious resolution of the claim under a special motion to dismiss or a motion for summary judgment. If successful, he would be awarded reasonable attorneys’ fees, and coould be awarded damages as well. While this statute has not appeared in any reported decisions, there is a similar provision regarding Florida homeowners’ associations. See § 720.304(4), Fla. Stat. (2008), which prevents homeowners’ associations from filing similar suits against their members. That has only been used once, and it didn’t end well for the SLAPP perpetrator.

Conclusion

Three Orlando area bowlers expressions say it all
One quipped, 'Are you telling me these clowns never heard of
New York Times v. Sullivan?'

Winthrop and Demings both ought to be forced to attend a remedial course in Constitutional Law. The First Amendment requires politicians and other public figures to have a reasonably thick skin and endure a substantial amount of harsh criticism. Unfortunately for Demings, she seems to lack that thick skin, and didn’t seem to get the best advice. Winthrop really should have known better.

My prediction: Demings will eventually be forced to back down. I can’t really see anyone being stupid enough to file a suit like this. Wait, scratch that, I’ve seen many lawyers dumb enough to file a suit like this. Despite Winthrop’s ill-advised statements to the media, I’m not betting that he is one of them.

And by the way, from the time I started writing this piece until I hit “publish” — the counter on valdemings.com rose to 1682.

I can hear Barbara Streisand singing now…

Judge Warns Litigants Against Unprofessional Litigation Tactics

For those of you who are new to the profession, or those of you who are simply wondering why your job as an attorney is so stressful, David Maister offers some advice.

The toughest lawyer is not the one who is the most obnoxious. Clients will say they want a tough son of a gun to make somebody life’s miserable, a real bulldog, etc.

Don’t be that person. It’s been my 100% uniform experience that the bulldog only adds time, expense, stress and confusion to an otherwise inevitable result. Even clients can’t stand them after a couple of months. You want to be tough? Have the best preparation on the facts, the law and the strategy. Judges care only about those things, not a whit for bluster. Bullies are jerks, they wreck the profession for everyone, and you can beat them every time.

And finally and hands down most importantly, and please pass this on to your friends and your children, because it’s really important — Be nice and have fun. Just doing that makes life better for everybody, mostly you.

Fortunately, most of the lawyers I have met as opposing counsel already know this. I learned it very early in my career from a great guy in Fort Myers, and as a result, most of my best friends in the profession are former opposing attorneys. Unfortunately, I have encountered my fair share of douchebags in this profession as well. That’s fine, I think that despite Maister’s wisdom, one does need a punching bag to get out one’s aggression — douchebag lawyers serve that purpose for me.

In an ongoing SLAPP suit in Arizona, it seems that someone has been ignoring Maister’s advice and engaging in a little bit of litigation douchebaggery. See Best Western v. Doe, Case 2:06-cv-01537-DGC (D. Ariz.)

The Court assumed that the case would settle or be tried in a relatively simple proceeding. The Court again was wrong. On October 15, 2008, the parties filed 2,939 pages of material. These include a 125-page joint proposed final pretrial order, 31 motions in limine, and three longer motions that should have been motions in limine. In a remarkable feat of microscopic dissection, the parties sliced four modest claims into 51 separate factual disputes and 30 issues of law. Plaintiffs listed 52 potential witnesses and Defendants listed 69. Plaintiff listed 434 exhibits (with 175 pages of objections to defendants’ exhibits), and Defendants listed 320 exhibits (with 63 pages of objections to Plaintiff’s exhibits). The parties claim the need for 102 hours of trial time, which would require a five-week trial.
These filings are wasteful in the extreme.

The Court is not a forum for the parties to expend every possible dollar seeking to litigate every conceivable issue, no matter how insubstantial. The Court will no longer tolerate the excesses of this case. (Op. at 3-4, emphasis added)

HT: Eric Goldman

Memphis Police Director Targets Anonymous Bloggers

By Sam Lea,
Legal Satyricon Correspondent

Memphis Police Director Billy Godwin has filed a lawsuit aimed at discovering the identification of the persons behind a Blog that is particularly critical of the Director as well as the Memphis PD (source ). The Blog is known as MPD Enforcer 2.0, which has become a popular place for Memphis Police Officers to anonymously vent their frustrations with the Department and its leadership.

Most of the documents associated with the case have been sealed by the court, so it is unclear if the objective of the suit is to simply identify “leaks” in the department, or if it is to simply shut the site down. Memphis Police officials have refused to comment on the pending legal action, but what is clear is that the actions taken by the City of Memphis on behalf of Director Godwin have stirred up a hornet’s nest of controversy over the right to anonymous speech.

The person responsible for the blog identifies himself only as “Dirk Diggler” (name of the porn star in Boogie Nights). In an anonymous interview, Mr. Diggler states that he found out about the suit only after receiving an email from AOL which contained a copy of the subpoena requiring them to hand over “all information related to the identity of an email address linked to the site.”

Recent decisions dealing with anonymous speech on the internet appear to be in favor of preserving the right of an individual to remain anonymous, requiring the plaintiff’s claims to be able to survive summary judgment (Cahill v. Doe), with some courts requiring a “prima facie” showing that he or she has a valid legal claim (Krinsky v. Doe).

However, this case is unique in that it involves a public agency and public employees. The courts have routinely recognized that the state possesses great leeway to control employee speech that threatens to undermine its ability to perform legitimate functions. Director Godwin may contend that the Blog undermines the leadership of the MPD, which may have adverse effects on its ability to effectively prevent crime.

However, along with his criticism of department leadership, Mr. Diggler claims to only post blogs based on information already available to the public, so the Pickering Test (clicke here) and its progeny would likely protect the anonymous bloggers if some sort of retribution is sought by the department. After all, corrupt, ineffective police leadership is a matter of public concern. The problem is that these protections will only be available once they are ousted.

Mr. Diggler claims the suit has already had a “chilling effect” on officers contributing to the site. If their names are revealed it would effectively shut the site down and Director Godwin would achieve his objective without even continuing the suit. Can you say SLAPP suit?

No Phat Pink Chicks Blog Prevails

A little cat-fight exploded into a blog-spat, then a lawsuit, which has finally ended with a lesson in First Amendment rights.

Reporter, Christy Lochrie filed suit against her former friend, Beth Norby. Norbry’s blog, “No Phat Pink Chicks” has been described as a “scathingly critical blog” aimed at Lochrie. (source).

[judge] Gibson denied Lochrie’s plea that Norby stay away from her and also take down her “No Phat Pink Chicks” blog, which for months has poked fun at Lochrie’s reporting and her personality.

Gibson said the First Amendment protected Norby’s blog. He added that its content didn’t constitute harassment, although it was “rude and boorish” and walked a thin line between protected speech and defamation.

“I think Mrs. Norby should not be proud of what she posted,” Gibson said. “This is sixth grade, but it might not even make it to that level.”

As such, Gibson also denied Norby’s request that Lochrie reimburse her for her legal fees.

“I think the comments by you (Norby) brought this on,” Gibson said.

But Gibson also criticized Lochrie.

“I think we can’t avoid that there’s a big, fat First Amendment staring you in the face,” he admonished. (source)

While it is heartening to see that some trial level judges understand that the First Amendment requires neither politeness nor fairness. See, e.g., Pullum v. Johnson, 647 So. 2d 254, 258 (Fla. 1st DCA 1994); Dockery v. Florida Democratic Party, 799 So.2d 291 (Fla. 2d DCA 2001).

On the other hand, the California Anti-SLAPP law seemingly should have required an attorneys fees award. The fact that Norby brought the suit on by posting negative comments about Lochrie doesn’t change the fact that the mere seeking of an injunction against future speech should be sanctionable in any U.S. court — especially one in California with its anti-SLAPP legislation.

Another Florida SLAPP Suit

Just another day in litigious flori-duh. The Miami Herald reports:

Developer Tibor Hollo has filed a $25 million defamation lawsuit against a Miami real estate agent who blogged that the octogenarian went bankrupt in the 1980s and is headed for a fall with the upheaval in the condo market.

Hollo last week sued agent Lucas Lechuga and the Coral Gables brokerage Esslinger-Wooten-Maxwell alleging they have engaged in a smear campaign against him and his Opera Tower condo development on Lechuga’s Miami Condo Investments blog.

…

Lechuga, 29, predicted on the blog that at least half of the buyers in the 635-unit Opera Tower at 1750 Bayshore Drive would default and the units would be taken over the project’s lender.

”My opinion is that this development is doomed,” he wrote on Jan. 10.

That followed this Nov. 25 post: “This developer went bankrupt in the 1980’s and I think we’ll see a repeat performance within the next 6 months. What do I know, though? I’m no real estate oracle.”

The blogger’s statement is here.

Copyright and Fair Use in Demand Letters

Earlier Post is updated with links to other sources on the subject and additional analysis.

Copyright vs. Free Speech in Cease and Desist Letters

I have seen a lot of laughable cease and desist letters in my career. Usually they come to my attention when the victim of an overreaching cease and desist posts the letters online. The theory behind this practice is that when a small and poorly funded cyber-critic gets an overreaching and bullying cease and desist letter, the best way to react is to share it with everybody. Just as strong sunlight will dry up mold and cause roaches to scurry for the corners, exposing unethically overreaching cease and desist letters to public criticism and comment will make lawyers think twice about how they wield their letterhead — and will make litigants think more carefully about how they choose their legal representation.

Calling for Harm to the First Amendment

If censorship were legal and not repugnant to everything I believe in, this editorial by former Judge Michael Chionopoulos would be the first thing I would wipe from the marketplace of ideas. In all fairness, the editorial is so poorly composed that I do not think it is the author’s fault. The lack of cohesion in the article suggests that the editor must have cut out large swaths of the original piece — making the author look bad in the process.

Whether it is the author or the editor who is at fault, the article spreads the worst kind of misinformation about the First Amendment. If it goes without rebuttal, it could cause terrible violence to our profound national commitment to free expression. The article, titled First Amendment rights in the blogosphere, would be more appropriately titled “A Call to Repeal the First Amendment.“

Since censorship is neither legal nor desirable, I will combat this article’s ideas with those of my own. That is how the marketplace of idea works.

A&P’s Corporate Crybaby Lawsuit

I heard about this story on NPR, but a big hat tip to the Citizen Media Law Project for not only reminding me of it, but for its dead-on analysis of the case.

The short version, Mark D’Avella and his brother Matt D’Avella made a hilarious rap video about produce, while working at their local A&P. The video is typical juvenile humor, mixing rap lyrics, profanity, creative use of fruit, and pretty damn clever parody. Had A&P ignored it, a few hundred people would have laughed and that would have been the end of it.

Unfortunately for the D’Avella brothers, some executive at A&P got together with a lawyer who obviously missed his law school classes on Constitutional Law and Trademark Law. A&P, through its lawyers at Fulbright & Jaworski filed this laughable action against the kids for (get this) defamation, product disparagement, and trademark infringement.

Injunctions vs. Free Speech? Ever heard of the Constitution?

First American eAppraiseIT v.Crowley is the latest assault on free speech in Florida. The defendant in that case publishes a website called Mortgage Fraud Watch List.

From the Defendant’s website:

MFWL is a database of addresses, submitted by real estate professionals from all 50 states, where a sale or refinance transaction has suspicious activity. Mortgage transactions involving these addresses should be scrutinized to insure the accuracy and honesty of all data submitted as part of the loan process. MFWL will direct all potential fraud reports from our members and non members to proper authorities for investigation.

The Plaintiff doesn’t like what the Plaintiff allegedly said about him on that site, so he sued for defamation.

It seems on its face that the suit is unsupportable, but I’ll need to review the pleadings to definitively say so. I will publish an update after I get them in hand (and eat humble pie if my instincts are wrong). (The full transcript of the hearing is here, but I excerpt it below).

Whatever the merits of the case in chief, the Plaintiff’s motion for a preliminary injunction was completely unsupportable.

The Plaintiff asked the judge for an injunction prohibiting the Defendant from making any statements about the Plaintiff until discovery was completed. In other words, before a single statement was determined to be legally defamatory (whether it is or not) the Plaintiff wanted the Defendant’s First Amendment rights suppressed until he could complete all of his discovery – which could take months.

In dismissing the request, the judge held:

Slapp Suit – Veranda Partners v. Giles Article in the Orlando Weekly

The Orlando Weekly covers the Veranda Partners v. Giles SLAPP suit. (link)

Earlier post here.

More Stranahan House SLAPP Suit News

Towering Rage, Luxury condo developers up the ante with critics, Broward New Times, July 26, 2007.

Earlier posts on this subject:

1. Slapp Happy? Related Group v. Stranahan House
2. Related Group v. Stranahan House update
3. Veranda Partners v. Giles
4. SLAPP Suits and Casablanca

Shaw Suburban Media Group v. Chief Justice Thomas – More Judicial Libel

There really is something stomach churning about a judge filing a defamation action. (See related post on Murphy v. Boston Herald).

This one, however, really makes me a bit unsettled. A newspaper in Illinois wrote an editorial questioning the impartiality of the Chief Justice of the Supreme Court of Illinois. He sued the newspaper for libel. (Pardon me while I reach for my antacid). Worse than that, it …………… ……… ….. ………………. ………………….. ….. ………….. ………… . ……….. .. . . .. ………… ………. ……… ….. . ….. . . …… . . … .. . …………….

I apologize for that, but if I stated my opinion, under the ruling in that case, I would likely be sued by Supreme Imperator Thomas too. Therefore, I have censored my opinion.

SLAPP Suits and Casablanca

I just did the Lisa Macci show, The Justice Hour, which is always a wonderful experience. She is a “conservative,” but in the real tradition of less government and more freedom. Think Pat Buchanan / Intellectually honest – not neocon. (As a bizarre personal note, I consider myself to be a raging flaming liberal, yet the lawyers I get along with the best seem to all be conservatives…)

The show was about SLAPP suits and what can be done about them. We spoke for almost an hour, but the crux of the issue is this — the cure for bad speech is more speech — not unfounded defamation claims. I used the following scene from Casablanca as an illustration of what a SLAPP suit really is. (Yes, I used it on my prior post too, but it is just so damn perfect that it is impossible to over-use it).

This scene may take place in Morocco, involving the Germans and the French, but come on… this is an American classic. The director was clearly making a statement about Free Speech.

Can you think of any greater demonstration of what Free Speech is all about? There is bad speech (the nazi song) and good speech (La Marseillaise), and in the marketplace of ideas, the better idea wins out!

Of course, then the nasty little despot gets involved. Instead of filing a SLAPP suit, he uses his influence to manipulate the authorities into shutting down the forum for the free speech that threatens his power.