Tearing a bully a new law-hole

You know what I like to read? I like to read Ken at Popehat's ninja lawyer pals sending insanely awesome, terrifying letters to bullies who use legal threats to try and shut up their critics online. If you like to read that kind of thing, too, then here's an 8-page PDF of Ken's friend Leif Olson tearing counsel for a bullying dentist who didn't like his Yelp review a new law-hole. Cory

Med Express uses broken Ohio law to silence critics who say true things

Are you a lawyer in Ohio? If so, your pro-bono services are urgently needed to defeat a trollish, bullying legal action from Med Express, a company that sells refurb medical equipment on eBay. The company is suing one of its customers for providing accurate, negative feedback on eBay's comment system, trying to establish a precedent that saying true things on the Internet should be illegal if it harms your business. They're relying on the fact that Ohio has no anti-SLAPP laws -- laws designed to protect people against the use of litigation threats to extort silence from critics -- and have admitted that, while they have no case, they believe that they can use the expense of dragging their victims into an Ohio court to win anyway. Ken from Popehat has more:

This is the ugly truth of the legal system: litigants and lawyers can manipulate it to impose huge expense on defendants no matter what the merits of their complaint. Censors can abuse the system to make true speech so expensive and risky that citizens will be silenced. Regrettably, Ohio does not have an anti-SLAPP statute, so Med Express and James Amodio can behave in this matter with relative impunity. If Ms. Nicholls has to incur ruinous legal expenses to vindicate her rights, the bad guys win, whatever the ultimate outcome of the case.

Unless, that is, you will help Amy Nicholls stand up — not for $1.44, but for the freedom to speak the truth without being abused by a broken legal system.

If you are an attorney practicing in Medina County, Ohio, please consider offering pro bono assistance. Mr. Levy will be coordinating assistance, and I can tell you from personal experience that it is a privilege to work with him. Help give Med Express and James Amodio the legal curb-stomping they so richly deserve. Justice, karma, and the esteem of free speech supporters everywhere will be your reward.

If you aren't an attorney, you can help, too. Med Express should not be permitted to act in this manner without consequence. The natural and probable consequence is widespread publication of their conduct. Help by publicizing the case on Facebook, Twitter, on your blog, on forums, and on every other venue available to you. Ask yourself — would you want to do business with a company that abuses the legal system to extract revenge against customers who leave truthful negative feedback?

The Popehat Signal: Stand Against Rank Thuggery In Ohio

Miami Heat owner sues blogger over photo

Miami Heat stakeholder Ranaan Katz is suing a blogger over an "unflattering" photo published online, reports Tim Elfrink in The Miami New Times. In the lawsuit, Katz claims copyright violation; coincidentally, the blogger—who has not removed the photo at his site—is a noted critic of Katz. Katz's lawyer, Todd Levine, even threatened the New Times in a Streisand-tastic effort to prevent it running a story about his lawsuit. [New Times via GigaOm]

FunnyJunk's lawyer sues American Cancer Society and National Wildlife Federation

Charles Carreon, the lawyer who sent a legal threat to The Oatmeal on behalf of FunnyJunk (FunnyJunk was upset that The Oatmeal had complained about the undisputed fact that its users routinely post Oatmeal comics to the site and threatened a libel suit unless they got $20,000 from The Oatmeal), has made good on his threat to comb the statute books until he could find something to sue Oatmeal creator Matthew Inman over.

But Mr Carreon has gone much, much farther. He has not only named Inman to the suit, but is also suing IndieGoGo (Inman launched an IndieGoGo fundraiser for a cancer charity and the National Wildlife Federation, and raised over $100,000 for them, with a promise that he would photograph himself standing astride the money and send it as a taunt to Carreon prior to remitting it to the charity). He is also suing the National Wildlife Federation and the American Cancer Society.

Ken at Popehat and Kevin from Lowering the Bar are offering pro bono counsel to the defendants in the suit, and looking for other First Amendment attorneys to volunteer their time to fight Carreon's lawsuit. Here's Ken's summary of the Courthouse News Service summary of Carreon's suit:

1. The lawsuit is captioned Charles Carreon v. Matthew Inman; IndieGogo Inc.; National Wildlife Federation; American Cancer Society; and Does [Does are as-of-yet-unnamed defendants], Case No. 4:12 cv 3112 DMR.

2. Charles Carreon appears as "attorney pro se," meaning "I am attorney but am representing only myself" and "I will continue to wreak havoc until forcibly medicated."

3. CNS included the following description of the case, which is most likely drafted by CNS upon review of the complaint: "Trademark infringement and incitement to cyber-vandalism. Defendants Inman and IndieGogo are commercial fundraisers that failed to file disclosures or annual reports. Inman launched a Bear Love campaign, which purports to raise money for defendant charitable organizations, but was really designed to revile plaintiff and his client, Funnyjunk.com, and to initiate a campaign of "trolling" and cybervandalism against them, which has caused people to hack Inman's computer and falsely impersonate him. The campaign included obscenities, an obscene comics and a false accusation that FunnyJunk "stole a bunch of my comics and hosted them." Inman runs the comedy website The Oatmeal."

As Ken points out, if the CNS summary is true, then Carreon's suit is especially frivolous:

Now, that summary, most likely written by CNS, may be flawed; thorough analysis must await getting a copy of the complaint. But to the extent the summary is accurate, it suggests a number of patent defects in the complaint. First of all, Carreon — appearing pro se — doesn't have standing to sue for false statements against FunnyJunk, or for trademark violations against FunnyJunk. Second, if the "trademark infringement" is premised on the notion that The Oatmeal violated Charles Carreon's trademark in his own name by criticizing him, it is knowingly frivolous for the reasons set forth in the excellent letter Mr. Inman's attorney sent. Inman's discussion of Charles Carreon was self-evidently on its face classic nominative fair use, because it named him to shame him and not to make commercial use of his name. Similarly, I can say that Charles Carreon remains a petulant, amoral, censorious douchebag without violating his trademark because that's nominative, not commercial.

Ken's post is (as always) full of great analysis, and he recommends that if you want to help fight Mr Carreon's douchebaggery that you donate to the Oatmeal's charity fundraiser (currently standing at $178K and rising) and tell your friends (he also asks that you not send angry emails or calls to Mr Carreon).

Update: Lowering the Bar has the complaint

The Oatmeal v. FunnyJunk, Part IV: Charles Carreon Sues Everybody

FunnyJunk's lawyer vows revenge on The Oatmeal and Matthew Inman

Charles Carreon, the lawyer whose threat-letter to The Oatmeal comics creator Matthew Inman ended with he and his client being ridiculed far and wide, and a small fortune being raised by Inman for charity, continues to demonstrate a fundamental lack of good sense and understanding of Internet dynamics. In an interview with Forbes, he threatens to comb through California's statute book until he finds something he can use to ruin Inman ("California code is just so long, but there’s something in there about this.")

Ken at Popehat -- a former federal prosecutor -- has some sound advice for Mr Carreon, Esq. As he points out, Carreon's proposed course of action is incredibly risky, and may result in professional censure and financial ruin:

Oh, Mr. Carreon, indeed there is. There's California's magnificent anti-SLAPP statute, under which you'll be paying the attorney fees of anyone you sue. There's California's judgment debtor exam law, under which you can be interrogated about your income and assets in preparation for garnishing your income and, if necessary, seeking liquidation of your assets to satisfy a judgment for attorney fees against you. There's California's sanctions statute, under which you can be sanctioned for bringing suit to harass or without adequate legal or factual basis.

Read them carefully. And think. Think hard. Step back from the precipice. This can get better, by you letting it go. Or it can get worse. Much, much worse.

[Note: Mr. Carreon asserts that his site was hacked. I don't know whether that is true or not. If it is, it cannot be attributed to The Oatmeal standing up for himself. But if you are doing anything illegal -- like hacking, or making true threats -- you are a foe, not a friend, of the First Amendment. If anyone has any information on another person hacking or making true threats, you should turn them in to face criminal or civil consequences. On the other hand, bear in mind that "your criticism led to my site being hacked and me getting death threats!" is now the cry of nearly every person who becomes the internet's asshole-of-the-week, and the claim should not be accepted without proof.]

The Oatmeal v. FunnyJunk, Part III: Charles Carreon's Lifetime-Movie-Style Dysfunctional Relationship With the Internet (via TechDirt)

Romney finance co-chair VanderSloot and his distasteful practice of threatening journalists

The Electronic Frontier Foundation's Trevor Timm comments on billionaire Frank VanderSloot's "systematic campaign to silence journalists and bloggers from publishing stories about his political views and business practices." VanderSloot, the CEO of Melaleuca, Inc. (Wikipedia calls it "a multi-level marketing dietary supplement and cosmetics company", Forbes called it "a pyramid-selling organization," and the State of Michigan called it "an illegal pyramid") is also finance co-chair the Romney campaign. He has long used copyright threats and libel threats to intimidate journalists in his home state of Idaho, and now that his work takes place on a national stage, he has expanded his scope accordingly.

An excellent, faintly terrifying Salon article by Glenn Greenwald sets out the case in detail, and Timm adds some wider context and notes that the Streisand Effect has kicked in, increasing awareness of VanderSloot's views and practices.

At the beginning of February, a blogger for the The Idaho Agenda was forced to take down a post after receiving a defamation suit threat from Melaleuca’s in house counsel. The author indicated that he took it down because he feared the expensive litigation battle but insisted that “the facts included in the post are a matter of public record found elsewhere, including the internet, periodicals and newspapers.”

Back in 2007, Melaleuca pressured the politics blog 43rdStateBlues to take down a critical post written by a pseudonymous blogger “TomPaine.” Another blogger on 43rdStateBlues, “d2”, posted the lawyer’s letter explaining to readers why the original was taken down. Incredibly, Melaleuca’s lawyers then obtained a retroactive copyright certificate on the threat letter and demanded the hosting provider take down the post as well. Even after they complied with the letter, Melaleuca sued TomPaine for copyright infringement then subpoenaed TomPaine’s and d2’s identity.

...Now, VanderSloot is at it again. He and his company's lawyers has targeted a local Idaho independent journalist Jody May-Chang over posts that are four years old. Melaleuca’s lawyers have challenged a series of articles written by May-Chang, most notably this one in which she describes VanderSloot’s funding of the billboard campaign and opines that he is “anti-gay.” Melaleuca first sent a letter to May-Chang in 2007, asking not only to correct the post but to take down the stock photograph of VanderSloot that was on his personal website (a common practice among journalists). The photo was taken down but the posts stayed up at a new URL. After re-discovering the post last month, they sent another letter to May-Chang repeated their demands from 2007, but May-Chang has held her ground and kept the post up despite the threat of costly litigation.

Allow me to take this opportunity to remind Mr VanderSloot and his counsel of Boing Boing's long history of using anti-SLAPP statutes and withering scorn in the face of groundless censorship and intimidation attempts, and the Streisand Effect accruing thereto.

Billionaire’s Bogus Legal Tactics Against Bloggers Threaten Free Speech

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

$60k damages awarded against blogger who reported truth

A blogger must pay $60,000 after reporting a link between a local community leader and mortgage fraud. From the Star Tribune:
The jury awarded [Jerry] Moore $35,000 for lost wages and $25,000 for emotional distress. The civil verdict culminated a nearly two-year legal scuffle between John Hoff, whose blog, The Adventures of Johnny Northside, has 300 to 500 readers daily, and Moore, former director of the Jordan Area Community Council.
Because the story was true, according to the Star Tribune, Moore (who was fired after the report) sued not for libel but for 'meddling' in his employment.

Mining giants bury Canadian critics with lawsuits

Canadian academics and free speech advocates are up in arms over two mining multinationals' use of libel law to bury their critics in lawsuits. Alain Deneault, Delphine Abadie, and William Sacher published a book called Noir Canada. Pillage, corruption et criminalité en Afrique that detailed well-sourced human rights abuses by the multinational resource companies Barrick Gold and Banro Corporation. The companies have responded with $11 million in lawsuits, aimed at bankrupting their critics with court fees. Barrick Gold has threatened other publishers on the basis of brief summaries of yet-to-be-published critical books.
These clear threats against academic freedom of expression and freedom of speech are cause for serious concern and the Free Speech at Risk site aims to bring attention to these cases and open up the public debate over the issue. Authors and academics should not have to fear legal action for simply asking questions based on material and reports that are already in the public domain.


This site was started by Professor Michel Seymour from the Université de Montréal, along with author Alain Deneault, and Anne-Marie Voisard of Écosociété. Several organizations have also pledged their support. If you are an academic professor, please consider signing our Academic Petition and concerned Canadians can also consider signing our Citizen Petition.

Free Speech at Risk (Thanks, Dad!)

NPR on Slapp lawsuits

Nazanin Rafsanjani of NPR's On The Media took a look at legislation aimed at curtailing SLAPP lawsuits -- the kind designed to silence critics rather than right wrongs. As we have some experience of this, I got to tell Rafsanjani all about our case for the segment.