Pro bono lawyers rescue scienceblogger from naturopath's SLAPP legal threats

Ken at Popehat -- a lawyer -- describes the pro bono action he fought on behalf of Michael Hawkins, the scienceblogger behind For the Sake of Science, after Hawkins found himself threatened with a lawsuit by Christopher Maloney, a "naturopath" whose methodologies Hawkins had pointedly questioned and mocked. Maloney's wife, a member of the Maine legislature and an attorney, sent a lengthy legal threat that implied that the couple had already sued Hawkins, and which proposed to ask a judge for an injunction against any site on the web that reposted Hawkins's criticism ("a Maine state legislator just suggested that a Maine court should issue an injunction prohibiting unnamed, unserved people — potentially including you — from re-posting what Mr. Hawkins had to say about Dr. Maloney.").

Ken took Hawkins's case for free, along with First Amendment lawyer Marc Randazza, and local counsel Jed Davis of Mitchell & Davis PA. The lawyers told the "naturopath" and the lawyer/legislator that they believed that their complaint qualified as a SLAPP (strategic litigation against public participation) and all claims against Hawkins were waived.

Ken uses the stirring story of his victory as a call to arms to other bloggers to get educated about their local anti-SLAPP statutes, and to stand up to bullies who threaten them.

Across America, censorious SLAPP threats like the one Dr. and Ms. Maloney sent to Michael Hawkins succeed every day. They succeed because most defendants aren’t as smart or determined or brave as people like Michael Hawkins or Rhys Morgan. (I am not throwing the first stone at anyone who yields to a SLAPP threat. I can’t.) They succeed because most defendants don’t understand their First Amendment rights. They succeed because most defendants don’t know a First Amendment lawyer. They succeed because most defendants don’t have the money to fund a lawsuit. They succeed because many jurisdictions don’t have an effective anti-SLAPP statute. They succeed because many lawyers who care about the First Amendment aren’t in the position to do pro bono work, or worry that they don’t know the issues well enough or that it will take too much time. They succeed because the American legal system is, for the most part, set up to make it easy for plaintiffs to extort defendants without significant risk.
Do you care? If you do, good. Whether you are a lawyer or a blogger or concerned citizen, you can do your part to change all that.

Boing Boing fought and won an anti-SLAPP defense against a BS lawsuit from MagicJack, who had to pay more than $50,000 worth of our legal costs for their trouble.

Pro Bono Victory In A Junk-Science SLAPP Suit Against A Science Blogger

I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

MORE: christ what an asshole • free speech • law • Science • slapp

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http://www.facebook.com/profile.php?id=1404615354 Chris Dorr

Fantastic to see Mitchell & Davis continuing to fight the good fights! Good folks up theah!
awjt

Great story. Not watered down one bit.
Ken At Popehat

Thank you, kind sir.

My client Michael Hawkins — the science blogger in question — posted about his experience in the case here: http://forthesakeofscience.com/2011/12/19/christopher-maloney-and-the-lawsuit-that-almost-was/. Much of the credit goes to him for his courage.

Ken
lavardera

My thanks to Ken. We all win in this case.
Guest

I’ve never quite understood how SLAPP is a First Amendment issue. There needs to be some kind of reform when it comes to civil law, but the government is not censoring anything. The legal system is being abused.
- EvilSpirit
  
  You may be surprised to learn that the judiciary is part of the government.
- Ken At Popehat
  
  Actually, you can only say it isn’t a First Amendment issue if you ignore about a century of American law. The First Amendment is involved because (1) defamation laws are passed by the government, and (2) the courts, an instrument of the government, are being used to attack speech.
  
  You might disagree, and you might construct a coherent argument, but it’s an argument that comes many years too late.
  - Guest
    
    So far two asshole answers and one helpful one. Thanks, Ken.
    
    If anything I think the government should be imposing severe penalties on parties that file SLAPP suits.
    
    My point of view was that because the plaintiff in a SLAPP is not the government, it can’t be a 1st amendment issue. The 1st amendment applies to the government.
    
    but if we are going to treat the courts as just a blunt instrument, if we DO hold the plaintiff responsible for abusing the legal system to subvert free speech, shouldn’t there be some way to nail the plaintiff with civil rights violations? I’m talking criminal charges, not a counter-suit.
    - Ken At Popehat
      
      The remedies for frivolous censorious actions are anti-SLAPP motions (where available) and malicious prosecution actions.
      
      I understand your stance about it not being a First Amendment issue. I’m just saying no court has accepted it for nearly a century. Defamation suits are governed by the First Amendment because the plaintiff is using the force of the government. And Thank God. Because otherwise you could sue me just for disagreeing with you.
    - EvilSpirit
      
      Wait: your problem was actually that you don’t think that the government punishing someone for speech is not a First Amendment issue, just because they are not the ones *initiating* the action?
      
      No wonder I couldn’t figure out what the Hell you were talking about.
    - gibbon1
      
      My take on that is making threats to sue someone without any standing to do so is a form of assault. Lawyers that do that should potentially face disbarment and criminal prosecution.
      
      And it is a first amendment issue in the US at least. because it’s the government that enforces judgements. The flip side is that if the courts refuse to enforce a law, contract, etc it’s null and void. For instance convents that prohibit home owners from selling to minorities were deemed unenforceable by the supreme court, because under the equal protection amendment the court claimed the government _had no right_ to enforce.
- marilove
  
  Don’t you think a lawyer, and a First Amendment Lawyer, miiiiight know more about this than you do?
  - Stooge
    
    While that may be valid advice in this specific instance, it’s not good advice generally: that’s exactly the attitude that SLAPP suits rely on to work.
- LadyAntonym
  
  Which is why SLAPP was enacted – to end that abuse. Courts have found that libelous statements don’t have first amendment protection. EVERY libel case is also a First Amendment case. Filing a false libel case is attacking the victim’s First Amendment rights.
http://twitter.com/gordonjcp gordonjcp

See, this was one of the points I made the other day about the UK having rather better freedom of speech. In the UK, in a libel or slander case, the person telling the truth winds. In the US, the person with the most money wins, unless the other guy gets a really lucky break.
- Gilbert Wham
  
  Um, isn’t that the US system in general?
- Cory Doctorow
  
  Actually, that’s not a very good characterisation of the state of UK libel law (which is globally notorious for its breadth and friendliness to plaintiffs). In the USA, truth is an affirmative defense in libel claims. If you are accused of libel and you can show in a preliminary hearing that you were telling the truth, the case is over. Preliminary hearings aren’t free, but they’re a lot cheaper than trials.
  
  In the UK, truth is *not* an affirmative defense in libel. If you’re accused of libelling someone, the fact that the allegedly libellous speech is true is *not* a defense — you have to demonstrate much more complex concepts to mount a specific defense — you have to prove that you weren’t telling the truth in a way calculated to tarnish the plaintiff’s reputation. This is a really difficult, fact-intensive thing to demonstrate, and it will cost you a *lot* to prove it.
  
  What’s more, the UK doesn’t have anti-SLAPP statutes, and it asserts jurisdiction for speech and “victims” all over the world, with only the most tenuous connections to the UK (the US government actually passed a law saying UK libel judgements can’t be enforced in the US to avoid this).
ialreadyexist

Have you been SLAPPed? SLAPP ‘em Back Baby! A SLAPP Back is essentially a malicious prosecution lawsuit, which claims damages for being subject to a maliciously filed lawsuit. This could include damages for emotional distress and punitive damages. In some jurisdictions, like California, the penalties can be pretty severe.
* May not be available where you live.
katallred

I have nothing to add to the excellent legal discourse occurring here, but I would like to take this opportunity to thank boingboing for existing and, among promoting and doing other noble things, for fighting libidinous jerks like MagicJack. To use the colloquialism, SLAPPers can go fuck themselves.
- eyebeam
  
  Maybe the MagicJack guys could relieve some of their excessive “libidinous” tendencies through auto-copulation…
teapot

Considering naturopaths and NDs (That’s Not Doctors) are invariably scathing about the “corrupt medical industrial complex” surely we can put some of the scammers out of business with a few slander cases of our own. What a fucking joker.

My solution would be to simply post whatever offending material I had created everywhere possible, including responding to all legal threats with copies of what I had written.
http://profiles.google.com/marc.k.mielke Marc Mielke

This is yet another appropriate place to recommend that the affected parties refer the plaintiffs to the reply found in Arkell vs. Pressdram (1971)