SLAPP lawsuits can still force amateur speakers into silence

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A recent lawsuit being filed against certain interests and bloggers in the “doomsday prepper” or “survivalist” movement reminds me of the need to revisit the subject of SLAPP lawsuits, or Strategic Lawsuits Against Public Participation.

SLAPP suits are genuinely “frivolous” lawsuits aimed at bullying defendants, forcing them to spend money of legal fees to keep on speaking, especially online, when their speech doesn’t itself make money in a commercial way.  They tend to be filed by unusual business interests on the more extreme ends of the political spectrum.  The far Left has been guilty of SLAPP suits as well as the Right, although “red” states tend to have weaker anti-SLAPP protections.  The sort of party who files them tends to believe that social and political stability is achieved by “keeping ordinary people in line”.  This sounds like the mentality of Donald Trump, Vladimir Putin, and China. Plaintiffs tend to have business models based on public perception and high volume of activity concerning some very narrowly focused product or activity – a niche.  They tend to believe they have others depending on them (“family”), and that speakers have no real standing to be heard.

Wikipedia’s article lists 28 states that have some anti-SLAPP protection for speakers.  These include California (one of the strongest), New York, Maryland, and the District of Columbia, but not Virginia.

Electronic Frontier Foundation, in an article by Sophia Cope, discusses the Speak Free Act of 2015, HR 2304 .  The bill would authorize bringing bills from state court to federal court, and would clean up many jurisdictional ambiguities which the article (and Wikipedia piece) explain that tend to encourage “forum shopping” by plaintiffs.

Libertarian-leaning journalist John Stossel, back in the late 1990s, in an ABC 20-20 broadcast, had covered the idea of “loser pays” (common in Europe) as a way to discourage frivolous suits.  Sometimes this is true of copyright cases.  Objections to “loser pays” laws often come in the medical area, concerning accident or malpractice victims.  But the idea would seem to make sense in defamation and privacy cases.

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I’ve posted a story on the litigation against “Survival Blog” on a legacy blog here . One of the issues I the suit appears to be whether one can successfully litigate a defamation claim against a defendant merely for providing a secondary hyperlink to another defamatory article.  (In this case, there may be an issue of a brief characterization of the plaintiff by the defendant in a post.) It’s interesting that the action was filed in Ohio (Cleveland) where there is no anti-SLAPP suit.  The hyperlink issue could come up with video (YouTube or Vimeo) embeds.  It also may exist with copyright claims, especially “deep hyperlinks”, although back in 2000 a federal court had ruled that a deep link is like a footnote in a high school or college term paper. (English teachers to the rescue!)   On my blog post, you can follow Blogger labels like “hyperlinks” and “SLAPP” for historical development of these issues.

Some authorities say that a “rule of first publication” should prevent secondary downstream liability for both defamation and copyright.

The psychology behind filing SLAPP suits reminds me of patent trolling (and variations of these models have occurred with copyright trolling – Righthaven, of a few years ago – and trademark name trolling).  There is considerable controversy specifically over software patents, which often are overly “conceptual” in nature.  I have wondered if the problem could be controlled by requiring patent owners to actively market their own products or services.  But that would be like saying authors have to be able to sell their books directly rather than depend on Amazon!

(Posted: Thursday, Oct. 20, 2016 at 12:45 PM EDT)

Non-disparagement clauses can endanger consumers with sudden litigation for speaking out online, and there’s more

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So, what to make of the problem of contractors and other small businesses suing customers for bad reviews, mostly on Angie’s List and particularly Yelp!

Apartment complexes have, at least sporadically, joined the fray, too, with non-disparagement clauses on leases.  In one particularly outrageous case in Utah (details, with supporting links ), an apartment complex tried to force residents to give it Facebook “likes”, but later rescinded (and in doing so, it would be violating Facebook’s own TOS). I wonder of condo boards will, too.

The issue is more complicated than libel, where truth (in the U.S., but not always in Britain or Europe) is an absolute defense.  Here, merely speaking about the issue is a breach of contract.  So far, lawyers are all over the map on whether the clauses are enforceable, but in states without SLAPP laws (mostly “red” states), or maybe in fact in all states except California, they could be.

There are some interesting videos on the problem.  NBC has a basic story about what is called “bullying” by businesses.

A technology guy who says he “talks for a living” (“chatterboxes”) explains that non-disparagement clauses can be a sign of a company hiding bad service or that is combative and litigious. He indirectly hints that review site operators are protected by Section 230, but consumers are not; he also notes some risks with quick social media posts.

Health care and nursing homes can present their own unusual issues, as here.

Businesses do have a point.  In a real world, even one particularly pernicious review could make a lot of future customers hesitant.  It is a serious problem for small contractor business owners (often families) that have to make a living doing real jobs (involving handiness and sometimes some risk, as Sebastian Junger has written about), facing a permissive culture of self-broadcast that doesn’t offer a lot of accountability.  (I should temper this comment by noting that many “family” businesses set up franchise trademarks and still become rather medium-sized, often with several offices in a large metro area, or in several cities.)  But the practical threat for a speaker is the expense defending a lawsuit, even if the legal and ethical grounds for litigation by the contractor seem dubious and even if the customer’s statement is factually true.  Consumer groups say that consumers need other “weapons” besides having the expense of starting litigation themselves.  Countering this idea is the fact that many attorneys for consumers will take cases on contingency. I had this experience myself with liability claim for a convenience store injury in Minneapolis back in 1998.  (I recovered completely.)  But with some contracting situations, a consumer is unlikely to win in court even with litigation if the contractor performed the job to even a minimum standard.

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I don’t write on “review sites” (other than some reviews of books and movies on Amazon or imdb) because I don’t want to complicate my own self-publishing “environment”.  I do have a couple of other little disputes but I have not gone to review sites or even mentioned the parties by name online anywhere.  Yet I get emails from Angie’s List asking if I have anything to review (I am a “member”), and I get ads from approved sellers.  I don’t quite understand this mechanism, because you can’t “pay” for reviews on these sites (legally, at least).

There is more risk to consumers, it seems, from review site postings than from other social media postings or blogs.  I’ve actually been concerned, in the past, that the practice of “gratuitous” speech online could drive away other parties from working with someone.  For example, an employer who finds that an applicant has blogged about a previous employer, even from the distant past, could fear hiring the employer because the applicant will eventually write about the new employer, too, at least critically.  I’ve wondered if property and auto insurance companies could get concerned about this, partly because ill-conceived comingling or unrelated perils (maybe accidentally encouraging anti-selection) on umbrella policies.

A ”non-disparagement” clause is limited in its practical effect as far as a person’s other speech; it might be viewed in comparison to concepts like confidentiality agreements or conflict of interest.  A much grimmer idea would be refusing to hire or do business with someone who practice an “gratuitous”, non-whitelisted speech that didn’t pay its own way.  I haven’t really seen this happen much (although it might have caused me not go get media perils insurance renewed through NWU back in 2001, that’s another narrative).

The web has indeed democratized speech, and big social media sites (Facebook) are probably giving “amateurs” some practical cover from resistance from legacy businesses that feel threatened by the prospect of unregulated self-broadcast from consumers and employees.  But there are two sides to this, and real people have to make real livings supporting real families, in real life.  I would become very concerned indeed if this practice spread to big boys, like telecommunications providers (invoking the network neutrality debate, possibly) and insurers.

It is important to consider (at a later time) in some detail how user reviews affect the “sharing economy”, with services like Airbnb, Uber and Lyft (it goes both ways — consumers get rated, too), as was covered on Fareed Zakaria’s GPS on June 6, 2006 in an interview with the Airbnb CEO.

(Published: Saturday, June 4, 2016 at 1:45 PM EDT)

Gawker case seems to have an ugly backdrop of silencing naughtier elements of the press

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The idea of chilling speech from newbies or upstarts creates great concern with me. That’s one reason that I follow, for example, the SLAPP issue (May 30 post).

So I was a bit concerned over reports that Peter Thiel had “secretly” bankrolled the litigation costs for a destructive suit against Gawker, over a Hulk Hogan video, as I had previously explained on a  legacy blog post.    Vanity Fair has a long article by Abigail Tracy about Jeff Bezos’s saying Thiel needs a thicker skin (but so does Donald Trump, below – and Thiel is a Trump delegate).  Gawker (more or less in “Estate 4.5”) is threatened with extinction, not only from the award, but the enormous cost of defending what would have sounded like improbable litigation at first.

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I know the arguments on third-party support for tort litigation.  Some have said that this action is simply the moral equivalent of the ACLU or EFF backing litigation, but that’s more often class action, or often in cases where there are multiple “amateur” complainants.  The Washington Post has aired an op-ed by Stuart Karle (North Base Media counsel) “In the lawsuits against Gawker, echoes of the racist South”  .  Karle discusses the 1960 case New York Times v. Sullivan , where elected Alabama officials sued the paper and won over “libel” for handling of black student protests, to be overturned by the Supreme Court. SCOTUS thus established a higher bar in libel or privacy cases affecting public figures.  (The case has started with publishing an ad, real downstream liability to be sure.) These standards involve ideas like actual malice and reckless disregard of the truth.  I don’t have a particular personal opinion about how Gawker should have been decided on these standards, as I haven’t really looked at the offending material in any “detail”. But the Post article suggests that trial court judges were not aware of how the litigation had been funded.

Donald Trump, recall, has said that he wants to reign in on the media and lower the libel standard again (even to the point that he could threaten the existence of a company like CNN).

Thiel’s action is reported to be motivated by his earlier “outing” as gay by Gawker, a story I had never actually heard.

This is all so disturbing first because of Thiel’s hand in building major Internet companies (including Facebook and later Paypal) and also because Thiel has assisted inventor Taylor Wilson, an indication that he views the security and stability of the electric power grids in the future as an existential issue for modern civilization, let alone his own companies.  (The only presidential candidate to mention this issue specifically so far has been Ted Cruz.)  I had thought, wouldn’t somebody like that be preferred to Donald Trump if a business person is to become president.  Then I noticed he was born in Germany, so ineligible (no out like Ted Cruz has).  I also noticed his connection to the Libertarian Party.  So the reports of vindictiveness behind the Gawker suit are rather baffling. Only after all this did I learn he had become a Trump delegate for the GOP Convention in Cleveland.

I don’t write original stories exposing people, and I don’t even use review sites to complain about businesses.   But I have been viewed as a “threat” in my own way.  Others sometimes object that I “compete with myself” (and therefore unfairly with others) and offer practically all of my content “free” online, because I am “lucky” enough not to have to make a living at it.  In fact, I would like to work my way into “legitimate” Fourth Estate journalism.  So, maybe I am bad for other people’s business models (they need the ad revenue, or they need to sell hard copies of books, say, to remain legitimate publishers, or to support literacy programs).  An associated idea is that, if you want to be listened to and heard, you should have real responsibility for others.  I’ve even op-ed on that on my old legacy site with a perspective (early 2005), “The Privilege of Being Listened to”   which even got this angry “flaming angel” email reply in 2007 (middle of page) .  That style of thinking assumed no one has a right to prove he’s “right” and “better” than others by becoming a chatterbox or troublemaker until he has others depending on him (tying sexuality to marriage and kids, etc.) in “real life”.  Today, I rarely get valid comments and emails on my own blog content;  most reaction comes to Twitter and Facebook postings, especially my own comments on personal news stories.  Still, my blogs and sites help “keep them honest”, even if I have no qualifying lineage to be heard.  All of this is in “reactive mode” and I’ll come back to it soon.

(Published on Thursday, June 2, 2016 at 9:45 PM EDT)

P.S.

In the Washington Post, June 5, 2016, Christine Emba writes, “We’re all implicated in the messy Gawker case.”

On June 6, a Wahington Post LTE makes the point that Thiel had no “standing” to become involved in the Gawker litigation, so could become vulnerable for abrograting Gawker’s First Amendment rights.  But this idea is worrisome.  It could open up theories of torts against bloggers who comment on a situation about another consumer and seller not directly involving them. I am thinking of Michael Mann’s 1999 film “The Insider” and the theory of “tortious interference.”

P.S. 2 2016/6/10

Gawker has filed for Chapter 11 bankruptcy, but it is by no means “dead”; Vox story by Timothy B. Lee today.

Mother Jones faced a massive lawsuit in Idaho from GOP donor Frank VanderSloot and company Meleleuca in a complicated situation connected to an earlier incident involving a gay reporter in Idaho.  The details would make a movie by themselves;  you can read it all here.  But the narrative shows the power of the super-wealthy to control publicity that could expose them with what amount to SLAPP suits.