On a practical note, in between the ramblings on conspiracy theories, I noted a subtle legal issue in Attorney Wolk’s opposition that I thought warranted a bit of discussion.  For one of his substantive thrusts, Wolk poopoos the Amici for bringing an argument in opposition to his appeal that was not raised at the trial level.  Wolk cites numerous authorities for the principal that new arguments cannot be brought up at the appellate level.  Now, in fairness, I didn’t check all of the cited cases, but each of the ones I did involved the appellant getting the smack down for raising arguments that the appellee wasn’t given the opportunity to develop at the trial level.  I’m not 100% sure that Wolk’s argument holds up when the shoe is on the other hand.

By way of quick and simplified explanation, on appeal the appellant (Wolk, in this case) is the party that disagrees with the ruling of the lower court.  The appellant’s opponent, i.e., the appellee, therefore agrees with the lower decision.  Therefore, it’s the appellant who wants to tip the apple cart, while the appellee is fine with things as they are.  Given the desired tendency towards finality of court decisions, and in the interest of judicial economy, the appellant is supposed to have a bit of an uphill battle, but the same is not necessarily true for the appellee.  Ignoring for the purposes of discusion the fact that it was Amici who brought the new argument, I think that Wolk is wrong that new support cannot be introduced to prop up the lower court’s decision to dismiss his complaint.

See Colautti v. Franklin, 439 U.S. 379, 397 n. 16 (1979) (“Appellees, as the prevailing parties, may of course assert any ground in support of that judgment, ‘whether or not that ground was relied upon or even considered by the trial court.’” (quoting Dandridge v. Williams, 397 U.S. 471, 475 n. 6 (1970))); see also Fairview Township, York County v. United States Environmental Protection Agency, 773 F.2d 517, 525 n. 15 (3d Cir. 1985) (“It is well settled that ‘we [can] affirm the district court on any basis which finds support in the record.’” (citations omitted)); but see Airco Industrial Gases, Inc. v. Teamsters Health & Welfare Pension Fund of Philadelphia & Vicinity, 850 F.2d 1028 (3d Cir. 1988) (noting that if an appellee aspires to alter the trial court’s decision (either increasing its rights or decreasing those of its opponent), a cross-appeal is required)

Many thanks to John R. for providing the above-listed citations

With all due respect to the attorneys quoted in the piece, the story is a load of shit.  It paints the picture that you can and will be sued for posting anything negative about anyone or anything.  We understand that there is only so much space available for a story, but this one was so halfway done, that we question the article’s intent.  Newspapers are losing their grip on the dissemination of information, as blogs and citizen journalists deliver information to the masses.  It almost seems like the L.A. Times was trying to scare us all from encroaching on their turf – and that it must have consciously failed to complete the story.

The article quotes our friend Professor Eric Goldman, of Santa Clara University, as saying that someone can be sued for saying “My dentist stinks.”  Conveniently, this is the end of the quote – convenient because it supports the message behind the piece, i.e., don’t be mean to people and hurt their feelings by writing unkind things about them.  We’re sure that, if the entirety of Professor Goldman’s input were published, he would have gone on to state, unequivocally, that “My dentist stinks” would never carry the day in court.  In fact, in California, bringing such a frivolous suit would leave the plaintiff paying everyone’s attorneys’ fees, after getting hit with a special motion to strike pursuant to the state’s anti-SLAPP statute.  We’ve never seen Goldman shill for the “fraidy cat” contingent, and we bet our entire publication’s credibility that he didn’t do so this time.

Let’s break it down LS style, in case someone out there is now afraid to complain about how much her dentist stinks on yelp after reading the article.  There are two ways the statement “My dentist stinks” can be interpreted:

First is figuratively, i.e., “stinks” being an expression of opinion about the quality of service provided by the speaker’s dentist.  Such statements are not actionable.  Period.  This is an expression of an opinion.  People should not be afraid to express their opinions for fear of being sued.  Such a result would be a horrible manipulation of the justice system in the United States and an assault on the free speech principles that the Framers tried to make inviolate.

Although it’s absurd, let’s look for a moment at the literal meaning as well, i.e., “stinks” being a description of the odor that the speaker’s dentist has.  Again, at bottom, this is an expression of opinion.  The whole idea of which scents are good and which ones are bad is wholly subjective.  Stating that you think a particular person or thing “stinks” is merely a classification of your individual preference for another odor over the one associated with the described person or thing.  So, even using the literal meaning, the statement “My dentist stinks” can only be interpreted as a statement of opinion.  Accordingly, such a statement can never be used to support a legitimate lawsuit.

Even suggesting that the speaker’s dentist could sue is a dangerous thing.  Let’s assume that said dentist has a larger war chest than the speaker (probably true – if the speaker had any real funds, he would have gone to a better dentist in the first place).  Mr. Shitty Dentist will bring his lawsuit, because he read in the L.A. Times that it was a viable claim (far be it from his bottom-feeding attorney to try to talk him out of it), and the poor complaining patient is forced to hire his own attorney to defend his right to express his opinion.  Chances are, our defendant can’t really afford to litigate the thing to completion.  So what’s left?  Consent judgment.  Retraction.  What do you think the next patient who gets a bad filling will do?  Are you getting the idea that anti-SLAPP statutes are becoming more and more important?  Unfortunately, The L.A. Times fails to mention that a federal anti-SLAPP bill has been introduced in the House, or that it’s picking up sponsors, but really could use a stronger push from the public.

In case you’re not familiar, a Strategic Lawsuit Against Public Participation or “SLAPP” suit is the name given to the frivolous lawsuit brought by our dentist, not for the purpose of vindicating any real right, but instead designed to silence his critics and make an example out of them.  The unfortunate reality is, without some mechanism to prevent it, a moneyed plaintiff can afford to hire an ethically challenged attorney to bury the defendant in paperwork and discovery requests long before the merits of his case are decided.  As more and more people are given a voice on the Internet to express their opinion, the SLAPP suit is becoming a favorite tactic of companies and wealthy individuals who want to privatize censorship.  An anti-SLAPP statute is designed to prevent this abuse of the legal system, giving a financially disadvantaged SLAPP defendant a fighting chance of quickly dismissing the suit and recovering his attorneys’ fees incurred in so doing.

Bottom Line: the free exchange of ideas should not be prevented because a couple of people *might* get their feelings hurt.  If people end up keeping their complaints to themselves based on a fear that there is a lawsuit lurking in response to every email or discussion board rant, the marketplace of ideas will be forever diminished.  Unfortunately, for every hundred people who read the L.A. Times’ article, ten or twelve may keep their criticisms to themselves and thereby reinforce the power of the politeness police.

L.A. Times Reader

If you have something to say, and you are afraid of being sued, ask a lawyer for a pre-publication review of your comments.  Many lawyers provide this service cheaply, or sometimes free of charge.

Press for anti-SLAPP legislation.  First Amendment Bad Ass Congressman Steve Cohen (D-TN) has introduced a federal version of California’s successful anti-SLAPP statute.  Contact your representative and let them know you think this is a good idea.

This article was originally posted on The Legal Satyricon

Understandably, Paul and his campaign staff are a bit upset about the story.  It paints the picture of a college dropout who regularly participated in felonious assaults on women — one to which Kentucky voters may have a hard time relating.  In response, a spokesperson for the campaign has hinted that there may be a defamation suit in the works, and GQ’s Editor-in-Chief, along with the rest of the left, doing their best Glenn Beck impression, just want to know why there’s been no denial.  Why isn’t he answering questions?  Don’t we have a right to know?

In the week since the story was first published, the most salacious charges therein have been largely discredited, and only one question remains (at least as far as we’re concerned):  If the story was really false, can Dr. Paul prevail in a libel suit against GQ?  The answer to that question is not a simple “yes” or “no” — but hey, what fun would it be if it were.

Since Rand Paul is a public figure, he must successfully prove, not only that the statements in the story were false, but that GQ published them with knowledge of their falsity, or at least with reckless disregard for whether they were false.  This standard, which comes from the Supreme Court decision of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), is known by the term of art “actual malice.”  (Be on the lookout for upcoming dissents from Kagan about whether this should still be the standard.)  As you might imagine, this is a pretty difficult hurdle to clear, and as a result, most public figures don’t bother with the trouble, and as a result, we’re able to pass the time in the grocery store checkout aisle reading headlines about which Brangelina star is single-handedly fighting off the Masonic alien takeover plot that threatens to end all organized world governments.

The public policy involved here is a good one.  It should be harder for public figures to sue people and shut them up.  A public figure is in a better position than the ordinary citizen to answer an erroneous news item with an explanation, so unless the publishing entity is actively spreading lies, or isn’t even bothering to check whether something is a lie, there’s no foul.

Moving on with the analysis of the instant fact pattern, assuming for the sake of argument that the GQ story was false, under which circumstances would actual malice be present?  Again, for the sake of argument, let’s assume that GQ wasn’t aware that the story was false.  They had a source who claimed it was true; isn’t that enough?  Maybe.  Did they have two confirming sources?  I’m guessing no.  Personally, I roll my eyes at any news item based on *factual* accounts provided by a source that must, for whatever reason, remain anonymous.  Anyone who doesn’t realize that such garbage is, at best, propaganda should seriously consider euthanasia.  Does reporting on anonymous tips rise to the level of “reckless disregard for the truth,” I say “yes,” but I’m sure there are plenty who would disagree.

Don’t be confused, however, between the right that everyone has to remain anonymous, in criticizing or participating in public discourse, and the shoddy practice of quoting an anonymous source.  In the former, the speaker had better give some hard, verifiable facts before she should be given any credibility whatsoever.  The latter is, nine times out of ten, unforgivable deception that any reputable news outlet will avoid if it has any notions of integrity.  If the magazine you’re reading is citing anonymous sources, as long as you’re aware they’re probably printing lies, there’s no need to worry about it.  If you’re voting in elections based on that information, though, pay attention to this:  Anonymous sources in every state election commissions’ offices all confirm that the 2010 mid-term elections will be actually held on Wednesday, November 3rd.  See you at the polls then.

This article was originally posted on The Legal Satyricon

The Back Story

Most will probably remember that there was an annoying pop song, which was recorded back in the 90′s, called “Barbie Girl.”  The group Aqua‘s single claim to fame was a huge success, despite being about as appealing to listen to as nails on a chalkboard — don’t let the number of stars assigned to this YouTube clip fool you.

If anything, I have to admit that I find the song amusing, and unlike 2 Live Crew’s “Pretty Woman,” I can believe that Aqua actually created the song to poke fun at the materialistic nature of Mattel’s Barbie franchise, instead of coming up with that justification after a lawsuit has been filed.  True to form in those days, Mattel was not amused with Aqua’s parody, and decided to do what it always did back then… file an infringement lawsuit.  While the case was pending, a Mattel spokesperson went on record, criticizing the defendants for not respecting their intellectual property rights, which of course spurred a defamation counterclaim.

The trial court made short work of both sides’ allegations, dismissing all with a summary judgment.  The court determined that the Aqua song incorporated Mattel’s trademark as a means of identifying Mattel, not to unfairly compete with the toy company.  That’s fair use.

Everyone appeals, hilarity ensues

Hon. Judge Kozinski (who is probably better known for more recent events) sets the tone for his now-famous opinion in the first line:  “If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong.”  From there, he explores a brief history of the Barbie doll’s origins as an adult toy, modeled after a German hooker — something I’m sure that Mattel would rather not have reported on.  Moving on to an expert legal analysis of the balance between the First Amendment and intellectual property rights, Kozinski concludes by boiling down the defamation claim as unsustainable:

MCA filed a counterclaim for defamation based on the Mattel representative’s use of the words “bank robber,” “heist,” “crime” and “theft.”  But all of these are variants of the invective most often hurled at accused infringers, namely “piracy.”  No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eyepatches and peg legs who board galleons to plunder cargo.  In context, all these terms are nonactionable “rhetorical hyperbole,” Gilbrook v. City of Westminster, 177 F.3d 839, 863 (9th Cir. 1999).  The parties are advised to chill.

Mattel slunk away, licking the wounds of its latest intellectual property litigation defeat.  For the next several years, it appeared as if they had not learned their lesson (see, e.g., here, here, here, and here).  However, yesterday morning, the doll maker launched an ad campaign that demonstrates that they may have finally hired a decent attorney who gives better advice grown up.  (source)