Marc Randazza is protecting the rights of Alex Jones, a host on InfoWars and a journalist.
Alex Jones faces several defamation lawsuits in different states filed by the families of victims of the Sandy Hook Elementary School massacre. Alex Jones at one point questioned the official narrative of the story, but now believes the shooting happened.
“Even though overwhelming – and indisputable – evidence exists showing exactly what happened at Sandy Hook Elementary School on December 14, 2012, certain individuals have persistently perpetuated a monstrous, unspeakable lie: That the Sandy Hook shooting was staged, and that the families who lost loved ones that day are actors who faked their relatives’ deaths,” the suit filed by lawyers from the Koskoff Koskoff & Bieder law firm claims, reports Connecticut Law Tribune.
Marc Randazza is defending Alex Jones in Connecticut.
“If you are a First Amendment lawyer and you hesitate in defending someone because of allegations of what they said, then you are not a First Amendment lawyer,” Randazza said.
Recently, Marc Randazza appeared as a guest on Alex Jones’s show InfoWars to discuss First Amendment issues. Randazza and Jones discussed a plethora of topics, including defamation lawsuits, free speech rights violations, and the growing impact of censorship by social media companies.
“You see this with people on the right being systematically ‘no platformed’, not just from media sites, but from YouTube, from Facebook, from Twitter and now from PayPal and Stripe. If any company decides that it doesn’t like the kind of thing you have to say, then you are off.”
Once again Marc Randazza of Randazza Legal Group battled censorship in favor of wide open debate in his latest First Amendment victory.The 11th Circuit Court of appeals affirmed the anti-SLAPP win and the lower court’s decision regarding the “false advertising” claim.
The case is focused on the conflict of two doctors, Dr. Steven Novella and Dr. Edward Tobinick.
Marc Randazza represented Dr. Steven Novella, a Professor of Neurology at Yale School of Medicine and the editor of Science Based Medicine. On his website Dr. Novella writes about scientific debate in the medical community. Dr. Novella published negative opinions about Dr. Tobinick’s methods of off-label drug usage to treat Alzheimer’s disease.
Dr. Tobinick didn’t start the debate but filed a lawsuit against Dr. Novella for defamation. Also, he claimed that because the website hosted ads, the case was transformed into commercial speech. This case had a huge impact on publishers, but Marc Randazza successfully SLAPPed all legal claims and protected Dr. Novella’s right to free speech and debate.
Readers of this blog know that Marc is giddy that the Federal Trade Commission has sued Roca Labs. One of the more interesting features of the suit is that the FTC argues that legal action arising from negative reviews, which the FTC terms “gag clause practices”:
not only injure the purchasers threatened for complaining or expressing negative opinions; they adversely affect the information available to the public at large and distort the marketplace. Consumers will, because of this practice, be more likely to spend substantial sums on Roca Labs products that they would not otherwise buy. Prospective consumers searching online for information on Roca Labs products prior to purchasing likely did not see much truthful negative commentary on the price, side effects, return policy, or other aspects of Roca Labs products, because those comments were suppressed via the gag clause and related threats or enforcement.
FTC v. Roca, Motion for Temporary Restraining Order (Doc. 6 at pp. 14-15). Pages 22 to 28 of the motion delve into this in detail, noting in part “Defendants’ use of gag clause, including notices, threats, and legal actions to prevent their customers from making truthful negative comments about them or their products, thwarts informed consumer decision making, corrodes the marketplace, and is unfair under Section 5[of the FTC Act].” Id. at pp. 22-23.
The FTC Act, however, does not contain a private right of action. People cannot sue a business for violating the FTC Act; only the Federal Trade Commission can.
However, many states, such as Florida, Massachusetts, and Connecticut, contain statutes that make unfair and deceptive business practices unlawful under state law. And those statutes frequently contain what is known as a private right of action. Many such statutes permit the recovery of punitive or double or treble damages, plus attorneys’ fees.
Conduct that constitutes a “deceptive act or practice” or an “unfair act or practice” under the FTC Act is a violation of the Florida Deceptive and Unfair Trade Practices Act (FDUPTA). FTC v. Alcoholism Cure Corp., 2011 U.S. Dist. LEXIS 155574, 2011 WL 8190540, at *6-7 (M.D. Fla. Dec. 5, 2011) (citing Fla. Stat. §§ 501.202-204).
The FTC Act serves as a “lodestar” for determining what is an unfair trade practice under the Connecticut Unfair Trade Practices Act (CUTPA). Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 179, 510 A.2d 972, 976 (Conn. 1986)(citing Conn.Gen.Stat., sec. 42-110b.
Similarly, Massachusetts General Laws, Chapter 93A “defines unfair acts or practices by reference to interpretations of those terms in the Federal Trade Commission Act”. Kraft Power Corp. v. Merrill, 981 N.E.2d 671, 683, 464 Mass. 145, 156 (Mass. 2013).
The implications, then, of FTC v. Roca, are that where a business (either a company or person) sues a person or entity for defamation or on other theories to silence negative comment, in order that consumer information is suppressed, the defendant may be able to bring a claim or counterclaim that the lawsuit itself violates the state unfair trade practice statute. This may not help the defendant facing a defamation claim for statements about an individual unrelated to trade or commerce, and it does not stop a case in its tracks like a strong Anti-SLAPP law, but it may prove to be a useful tool for the defense, before, during, and after litigation.
Comments Off on Using State Law to Counter a Business Defamation Claim | defamation | Permalink Posted by Jay Wolman
Class, please watch the following video. There will be a quiz afterward.
“Potato” is the credited response. Remember, it is not which answer is “correct,” but which is the “best” answer.
Nevertheless, science author Paul Brodeur reportedly seeks $1m from the producers of American Hustle for their portrayal of his article in the film. (source). Since I have not seen the complaint yet, I can only base my opinion on the clip and my erudite knowledge of defamation law.
I can’t see any such suit being anything more than bullshit.
This is a throwaway line by a not-too-bright character in a movie. The line says a lot more about the Rosalyn character than it does about Mr. Brodeur.
I will comment more after I get a copy of the complaint, and review it. But, my initial reaction is that this lawsuit damages Mr. Brodeur’s reputation a lot more than that line, which never made anyone with any sense think less of him to begin with.
Update, I have the complaint. Lets start with the nice things I have to say about it, just to start off nice.
The claim does not make me think “the dumbass who wrote this should be disbarred.” That is not the same as me saying that I think it has much of a chance of winning, but there are varying degrees of silly lawsuits. This is not wallowing down there on the other side of reality. I still predict it getting knocked out on an Anti-SLAPP motion, but I do not call for eternal shame and damnation on the part of the plaintiff or his attorneys. More of a “dude, that wasn’t the best idea.”
Here’s the kernel of the defamation.
Its not just that Rosalyn interprets the Brodeur article to say that microwaves take the nutrition out of the food, but Irving then spends a while reading the article, but he seemingly fails to then discount Rosalyn’s position on it.
See, he should have slapped her and said “aaaaaahhhhhh shadaaaaap! Dumbass, that’s not what this article says.” Then, the movie could have gone into a little discussion about the relative merits of microwave ovens and nutrition.
All kidding aside, I can sorta see his point, on a human level. He’s a serious scientist from what I can find. Among his buddies at the science club, perhaps a few of them caught the super-obscure reference in the film. Maybe one of them made a joke at his expense? Did it damage his reputation? If you’re a scientist whose reputation can be trashed by an obscure reference in a movie like this, you must not have had a lot to protect.
I was once portrayed in a novel as a cowboy hat wearing, heavily armed, gator-boot wearing lunatic from Florida. I never wear cowboy hats. I have no gator boots. And I am not from Florida. I laughed, I turned the page, I moved on.
On a realistic level, I can’t see anyone looking at this and thinking that Mr. Brodeur was necessarily even a real person, who wrote a real article, or that either of the characters in the film were worthy of taking seriously on a subject like nutrition or physics.
Let’s Monday morning quarterback this complaint now. Chance of success? Not very high. Filed in a state with an Anti-SLAPP statute. Not too smart. The plaintiff lives in Massachusetts. Despite the fact that Massachusetts is generally a bad ass place, it has not yet passed a meaningful Anti-SLAPP statute. Asserting jurisdiction there would have been a bit of a stretch, but why not give it a try there? Maybe the defendants don’t bother to try and dismiss it for a lack of personal jurisdiction, and you can lose on the merits without consequences.
Now, I’d imagine that the studio will file an Anti-SLAPP motion, and I can’t see this complaint getting through it.
As a general rule, parents are not liable for their childrens’ actions simply by virtue of the fact that they are the kid’s parents. (I wish it were different, as that might put a leash on our idiocracy devolution, but sigh).
That all aside, the Georgia Court of Appeals just held that parents can be liable for their children’s activities online, most specifically on Facebook. See Boston v. Athearn (Ga. Ct. App. 2014).
The facts are pretty standard fare. Some kids decided to bully another kid. They set up a fake Facebook account dedicated to that mission. The Facebook page was apparently racist and defamatory. (Op. at 3).
During the 11 months the unauthorized profile and page could be viewed, the Athearns [the Parents] made no attempt to view the unauthorized page, and they took no action to determine the content of the false, profane, and ethnically offensive information that Dustin [their son] was charged with electronically distributing. They did not attempt to learn to whom Dustin had distributed the false and offensive information or whether the distribution was ongoing. They did not tell Dustin to delete the page. Furthermore, they made no attempt to determine whether the false and offensive information Dustin was charged with distributing could be corrected, deleted, or retracted. (Op. at 5).
Georgia follows the general rule that parents are not automatically liable for the sins of their children. But, they “may be held directly liable, however, for their own negligence in failing to supervise or control their child with regard to conduct which poses an unreasonable risk of harming others. (Op. at 6-7).
The Georgia court found that the child used a computer and access to an Internet account “improperly, in a way likely to cause harm, and with malicious intent.” (Op. at 11). The parents argued that they could not have anticipated the child’s actions until after the child’s school brought it to their attention. But, the Georgia court brushed this off, stating “The Ahearns’ argument does not take into account that, as Dustin’s parents, they continued to be responsible for supervising Dustin’s use of the computer and Internet after learning that he had created the unauthorized Facebook profile.” (Op. at 11).
Logically, this all makes sense. Parents have a duty to control their kid. They breach the duty. The breach causes harm. They pay. Classic negligence theory.
But, it seems that nobody raised the issue of 47 U.S.C. § 230, which provides immunity from such claims.(1)
The Communications Decency Act (CDA) provides, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). The CDA goes on, “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Id. § 230(e)(3).
This decision holds the parents accountable as it would a publisher or speaker of the information in question, thus the claim should be barred by 47 U.S.C. § 230.
CDA immunity requires that “(1) the defendant be a provider or user of an interactive computer service; (2) the cause of action treat the defendant as a publisher or speaker of information; and (3) the information at issue be provided by another information content provider.” Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 830 (2002)
This claim attempts to treat the parents as a liable participants in the tortious conduct. The CDA provides immunity when a plaintiff seeks to hold a defendant liable for tortious conduct based on the fact that the defendant provided the Internet instrumentalities used to commit the tort. See, e.g., Almeida v. Amazon, 456 F.3d 327 (11th Cir. 2006).
In Delfino v. Agilent Techns. Inc., 145 Cal. App. 4th 790, 806 (2006), the California court of appeals found that when an employee used the employer’s computer network to send threatening messages, the employer was not liable. In that case, the court held that although the defendant-employer merely acted as the provider of the computer system, the plaintiff’s tort claims in essence sought to hold the employer liable for the publication of the threatening messages. Id. Therefore, the employer was immune under § 230.
The Georgia Court of Appeals had its first § 230 case this summer. Internet Brands, Inc. v. Jape, 328 Ga. App. 272 (Ga. Ct. App.2014). “The CDA “precludes plaintiffs from holding interactive computer service providers liable for the publication of information created and developed by others.” Id. at 274-75. And, in that case, it recognized (like all other courts before it) that § 230 protection is broad. “[C]ourts have consistently … held that § 230 provides a ‘robust’ immunity, and that all doubts must be resolved in favor of immunity.” Id. at 276 (citations and quote marks omitted).
In this case, the plaintiff does not bring a direct claim of defamation against the parents for creating the content. But, the claims appear to have the same effect as treating them as the publisher of the information based solely upon their role as the provider of the account and hardware for the tortious communications. It is without dispute that the content was provided by another person, namely the son. The son, therefore, is the liable party – not the parents – and under the CDA, any claim to the contrary appears to be barred.
UPDATE: If CDA immunity applied, it would certainly be the first time it applied in precisely this kind of scenario. But see footnote 1, below.
(1) I oughta know. A few years back, I raised the theory that if you provide an open wifi connection, you should be liable for torts committed over that open wifi. Since I raised it in a copyright context, the courts I raised it before dismissed it on a pre-emption claim. But, other courts have since ruled that even if that theory was not pre-empted, it would be barred by Section 230. See AF Holdings, LLC v. Doe, 104 U.S.P.Q.2D (BNA) 1182, 2012 U.S. Dist. LEXIS 125306, 2012 WL 3835102 (N.D. Cal.Sept. 4, 2012); AF Hodlings, LLC v. Doe, 2012 U.S. Dist. LEXIS 143484, 2012 WL 4747170 (N.D. Cal.Oct. 3, 2012).
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
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, 443 S.W.3d 87 at n.7 (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998).
Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7 (Tex 2014) Kinney v. Barnes, 42 Media L. Rep. 2390 at n.7 (Tex. 2014)
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.
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.
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.
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.
“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?
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)
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.
You may have noticed that the writing has been a bit slow as of late. Well, one of the things that has been taking our attention away has been an all-hands effort up in Carson City, working on getting a realanti-SLAPP law passed here in the Silver State.
We are proud to announce that the mission has been accomplished. Nevada officially has a new anti-SLAPP law it can be proud of.
For the last two years, the Legal Satyricon has been complaining about the inadequacy of Nevada’s existing anti-SLAPP law. Notably, one judge suggested the possibility that the statute could be construed to only be used in lawsuits involving communications directly to a government agency, and the U.S. Court of Appeals for the Ninth Circuit ruled that the current statute did not allow for an immediate appeal of a special motion to dimiss.
Ever since I moved here in 2011, I’ve hoped to civilize Nevada with a meaningful anti-SLAPP law.
When Nevada’s legislative session commenced in February, the Randazza Legal Group team was a flurry of activity, drafting materials in support of a new Anti-SLAPP bill based on materials from throughout the country to present to the Legislature. Rather than simply replicating the statutes in California, Washington, or Texas, though, the ultimate bill (SB 286) made specific, limited additions to broaden the scope of Nevada’s Anti-SLAPP statutes while maintaining innovative provisions within those laws that were uniquely Nevadan.
Marc Randazza and Nevada Governor, Brian Sandoval, with the freshly-signed Nevada Anti-SLAPP law.
Armed with my dream statute in hand, I flew up to Carson City to present testimony before the Senate Judiciary Committee. My testimony focused on the need for a stronger Anti-SLAPP statute in Nevada, and the harm to individuals and businesses done by the consumption of public and private resources on the litigation of dubious claims against First Amendment-protected speech. The Senate Judiciary Committee, and later the entire Nevada Senate, approved of the bill. I then testified before the Assembly Judiciary Committee in support of the bill. Like the Nevada Senate, the Assembly Judiciary Committee and the entire Nevada Assembly passed the bill. The entire Nevada legislature had agreed that it was time to enhance Nevada’s Anti-SLAPP statutes so that they would embrace – and protect – a broader range of Constitutionally protected expression. On June 3, 2013, Nevada Governor Brian Sandoval signed the bill into law. The changes will take effect on October 1, 2013. The main changes are discussed below. The full text of SB 286 as enacted by Governor Sandoval can be found here.
Expands the Breadth and Scope of Protected Speech. The new law expands protected conduct to include any “communication made in direct connection with an issue of public interest in a place open to the public or in a public forum,” so long as the statement is truthful or made without knowledge of falsehood.
Allows For an Immediate Appeal of a Denied Anti-SLAPP Motion. The new law modifies NRS 41.650 so that a movant is immune from any civil action – not just liability – from claims arising from his or her protected speech, which allows for an immediate appeal.
Expedites Judicial Consideration of Anti-SLAPP Motions. Under the new law’s changes, the time for a court to rule on a motion after filing is reduced to 7 judicial days from 30 after the motion is served upon the plaintiff.
Creates a $10,000 Stick to Deter Frivolous Claims. In addition to allowing for a movant’s recovery of costs and attorneys’ fees, the bill amends NRS 41.670 to allow the court to discretionarily award a successful movant up to $10,000 in addition to his or her reasonable costs and attorneys’ fees. This serves as a significant disincentive and warning for those who might wish to pursue censorious litigation.
Creates SLAPP-Back Provision to Prevent Frivolous Anti-SLAPP Motions. The bill amends 41.670 so that a court denying a special motion to dismiss must award the claimant to successfully defeat the Anti-SLAPP motion his or her costs and reasonable attorneys’ fees upon finding that the Anti-SLAPP motion was “frivolous or vexatious.” I believe this is necessary, lest the Anti-SLAPP law become a barrier to justice for those with supportable claims.
Retains Key Elements From Nevada’s Existing Laws. While the bill represents a massive change to Nevada’s Anti-SLAPP laws, Nevada’s existing statutes had a number of powerful provisions that were unique among Anti-SLAPP provisions are fortunately still intact. The Nevada Attorney General, or the “chief legal officer or attorney of a political subdivision” in Nevada may still “defend or otherwise support the person against whom the action is brought.” NRS 41.660(1)(b). SB 286 also retains the successful Anti-SLAPP movant’s right to bring a separate action against the defeated plaintiff for compensatory damages, punitive damages, and the attorneys’ fees and costs for bringing the new action.
These changes bring Nevada into line with California, Oregon, Washington, Texas, and the District of Columbia as having the most comprehensive and progressive Anti-SLAPP statutes in the nation. I am proud of these changes and the effort my Randazza Legal Group team put into effecting this critical update to Nevada’s Anti-SLAPP statutes. We all look forward to seeing this statute in effect.
In a page out of Rakofsky vs. The Internet, it appears that one of the law firms and attorney groups frequently criticized as representing copyright trolls, Paul Duffy, John Steele, and Prenda Law, has gone on the offense against its critics.
copies of the complaints are linked by Jordan Rushie (1st Link). I have not read the entirety of the complaints, but I believe I saw quite a few protected statements that cannot form the basis of liability. Unclear what motivated the suits, but I have a feeling the Plaintiffs will come to regret them.
Editor’s note, the views in this post are those of Mr. Wolman. No other Satyriconistas have taken a public position on this dispute.
Looks like posting compromising photos of unsuspecting victims is not enough. Someone, who obviously once sat on a copy of the nutshell on copyright and online speech to sit at the grown-ups table, decided that merely posting photos was insufficient. This vile person decided it was all hunky-dory to simply solicit photographs of so-called prostitutes without any credible evidence (not to be confused with Smoking Gun, which publishes mugshots and such of people actually arrested).
One more time, with feeling! — FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!!!!!
The National Judicial College should require every judge that attends to watch The Big Lebowski. Further, every state should require a person to view it before they can assume the powers of a judge. It would result in a lot less unconstitutional orders from judges who seem to not know any better when it comes to issuing prior restraint orders.
Walter Sobchak made it pretty damn clear when he shouted “FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!”
I mean, ’nuff said, right?
Even if you watch The Big Lebowski, you will be infected with a bit of Dudeism, which will never hurt when you are trying to judge cases.
But, more to the point of this post, if you don’t know the first thing about prior restraint, even if you never heard of Near v. Minnesota, you’d still maybe have a little intellectual curiosity about that statement, right?