UK anti-SLAPP bill takes fire

The United Kingdom has an anti-SLAPP bill on the table, and lawyer Gideon Benaim has cataloged objections.

In broad strokes, the bill follows the usual pattern of anti-SLAPP, looking for free speech and public interests on the part of the defendant, which then burdens the plaintiff with proving probable success on the merits out of the gate.

Benaim published his objections on the INFORRM blog, part 1 and part 2. Some of his objections track those that I articulated in 2021 as to American anti-SLAPP statutes. I lamented the unfairness of expecting a plaintiff to meet an extraordinary proof standard such as actual malice as to falsity without the benefit of discovery. The equivalent UK approach expects a plaintiff to overcome a bare public interest defense without the opportunity to probe the publisher's process or motives.

Benaim also points out, as I have, that anti-SLAPP is as likely to be invoked by the powerful against the weak as vice versa; Goliath media giant against aggrieved individual; or, as happened, President Trump against sexual assault complainant Stormy Daniels.

Benaim is a rarity, a plaintiff's lawyer in media torts. Not that everyday aggrieved individuals will be able to score a place on his client list, which includes JK Rowling, Naomi Campbell, Roman Polanski, and Gordon Ramsay.

At least in the United States, at least, the already daunting odds of prevailing in a media tort case against a publisher with expert defense counsel on retainer causes most would-be plaintiffs not to sue at all, no matter how just their causes. They can't find counsel and certainly can't navigate complex media torts pro se. And that's before anti-SLAPP comes into play, threatening a losing plaintiff with having to pay the attorney fees of the media giant's high-dollar representation.

As I've written before, anti-SLAPP works well when it works well. Statutes just aren't drafted to ensure that that's always the case. It looks like the UK is struggling with the same problem.

Dominion v. Fox News evidences 'actual malice,' also shows how standard has fueled misinformation

(UPDATE, April 18, at 5:17 p.m.: NBC News reported a half hour ago that Dominion and Fox News reached a $787.5m settlement.)

CBS Sunday Morning did a nice piece this week on Dominion v. Fox News and the long heralded, but ever more evidently problematic, "actual malice" standard.

The piece explains the N.Y. Times v. Sullivan (U.S. 1964) "actual malice" standard in public-figure-plaintiff defamation cases such as Dominion, and how the standard is exceptionally provable upon the extraordinary evidence Dominion uncovered about Fox personalities' duplicity in knowingly professing misinformation.

Many a media pundit has made the observation on the seeming provability of actual malice in the case. CBS's voice for the point is that of Lee Levine, a highly regarded, now retired attorney who represented mass media companies in famous cases before the federal courts. In the Sunday segment, Levine says something along the lines of rarely if ever having seen an actual malice case he could believe in before now.

With Stephen Wermiel, Levine wrote a book, Progeny, about the "fight to preserve the legacy of ... Sullivan."  It's a good book on its merits. At the same time, its rhetoric and thesis well serve to bolster the social and economic power of the mass media business establishment.

As on CBS, Levine and lawyers like him often are held up as standard bearers for the First Amendment. But the corporations they represent are hardly freedom fighters in the romantic tradition of the lone pamphleteer.

I've long opposed Sullivan as a matter of constitutional fidelity or First Amendment imperative. It takes ill account of competing values, such as the right of personal reputation that has caused other western-democratic jurisdictions, such as Canada and Europe, to reject the standard as too stringent. As internet democratization has made it easier for ordinary people to be devastated by reputational harm, Sullivan has become ever more indefensible.

Dominion ought not be regarded as the rare exception that proves the rule. The plaintiff-company is able to make its case only because, to date, it has been sufficiently determined and well resourced to get over the many hurdles, such as anti-SLAPP statutes, that usually shield mass media from accountability. Most defamation plaintiffs, if they sue at all, see their cases dismissed without the benefit of discovery.

Dominion ought instead be taken as evidence in the mounting case that Sullivan has been a powerful cause of our misinformation crisis.

Land dispute implicates 'second element of second path of second stage' of anti-SLAPP analysis, and we're all supposed to pretend the world's better for it

The Supreme Judicial Court studies its anti-SLAPP framework.
Argonne National Laboratory CC BY-NC-SA 2.0 via Flickr

Anti-SLAPP analysis in Massachusetts has become a Rube Goldberg machine disguising little more than an "I know it when I see it" test—

—so I contend, and I offer a Massachusetts Appeals Court case decided Tuesday as evidence.

I've written many times about anti-SLAPP, including my contention that the device can be used meritoriously, but is as often deployed to contrary ends, a sword for Goliath to strike down David; the legion dysfunctions of tort law that anti-SLAPP amplifies; and the possible better solution to be found in process torts and similar related mechanisms of accountability in law practice and procedure.

As Massachusetts courts have struggled to differentiate meritorious actions from SLAPPs under the Commonwealth's characteristically convoluted statute, I ultimately gave up trying to keep up with the ever more complicated thicket of rules and procedures leaching out from appellate decisions. So The Savory Tort should not be your first stop if you're trying to get a granular grip on the current landscape here.

Yet I can't help but write about this most recent appellate opinion. To my reading, the court poorly disguised its doubts about burgeoning and burdensome anti-SLAPP process, and whether time, money, and justice can all be saved at the same time.

The underlying dispute was a land matter. The plaintiff, seeking quiet title and adverse possession, was partially successful in a somewhat protracted litigation. Later, if before the expiry of a three-year limitations period, the respondent from the land action filed the present case, alleging abuse of process and intentional infliction of emotional distress by way of the earlier case. The land plaintiff from the earlier case, now the process and IIED defendant, raised the Massachusetts anti-SLAPP statute in defense.

First, I take the occurrence here of abuse of process as evidence in support of my position that anti-SLAPP is often really about process wrongs. Though here the anti-SLAPP movant is the one accused of abuse of process, it is typical in process tort cases for accusations of misconduct to fly simultaneously in both directions. Regardless of whether a jurisdiction recognizes abuse of process as a cause of action per se, courts have the power to manage process objections with a range of existing tools. I wrote about abuse of process appearing as a defensive mechanism, essentially a better tailored anti-SLAPP device, in South Africa. And my 1L torts class just yesterday read Lee Tat Development, a well reasoned 2018 opinion, included in my casebook, in which the Singapore Court of Appeals both rejected the abuse of process as a tort action and thoroughly discussed alternatives.

The Massachusetts Appeals court devoted a dense 10 pages to the blow by blow between the parties in the instant case. I won't retell it here. What's compelling is what the court had to say about its job in reviewing the Superior Court's anti-SLAPP ruling. Quoting the Supreme Judicial Court (SJC) in the Exxon case, which I reported recently, the Appeals Court's opening line oozes disrelish:

"This case involves yet another example of the 'ever-increasing complexity of the anti-SLAPP case law,' and the 'difficult and time consuming' resolution of special motions to dismiss pursuant to the 'anti-SLAPP' statute."

The partial quotes read like the court is feigning innocent pleading to the Supremes, "These are your words. We're just repeating them."

In analyzing the instant case according to the painstaking legal framework that the SJC has eked out of case experience, the Appeals Court located the present dispute in "the second element of the second path of the second stage."

What is the second element of the second path of the second stage, you ask?

Well, it's that the "judge must 'assess the "totality of the circumstances pertinent to the nonmoving party's asserted primary purpose in bringing its claim," and ... determine whether the nonmoving party's claim constitutes a SLAPP suit.'"

Isn't that the whole game?

I humbly propose that the good ship Commonsense has already sailed when we start talking about a second element of a second path of a second stage.

The Appeals Court divulged a tone somewhere between surprise and pride when it concluded "that the [Superior Court] judge followed the augmented framework sequentially, assiduously, and judiciously." Adjectives "comprehensive" and "thoughtful" followed.

Then, around page 27, the court hints at deeper problems.

The [landowners'] arguments demonstrate some of the difficulties associated with the application of the augmented framework. On one hand, the present action presents as a typical SLAPP case in that a supposedly wealthy developer sued abutters of supposedly modest means for petitioning in court to challenge a development project.... On the other hand, the [landowners] averred that far from being wealthy and powerful developers, they were a real estate broker and part-time bookkeeper attempting to develop a single-family residential property, while the [anti-SLAPP movants] were not the "individual citizens of modest means" contemplated by the anti-SLAPP law. The parties contested each other's motivations and representations. There is an inherent difficulty and, in some cases, prematurity in requiring a judge to make credibility determinations and discern a party's primary motivation predicated on affidavits, pleadings, and proffers, and not on a more complete evidentiary record scrutinized through cross-examination.

Some pages later, the court returned more directly but cautiously to the question of anti-SLAPP efficacy:

In this regard, as we have noted, the [landowners] insist that the present action cries out for a jury trial as the only appropriate way to resolve critical credibility disputes and determine the parties' true motivations. This argument has some force in that there are obvious difficulties in ... requiring judges to be fairly assured that the challenged claim is not a SLAPP suit, absent full discovery and testimony tested through cross-examination. Yet, the special motion to dismiss remedy exists, in large part, to avoid costly litigation and trial.... In any event, it is for the Supreme Judicial Court or the Legislature to address and resolve these concerns should they so choose.

At the tail end of a 34-page appellate opinion on meta-litigation over a small land matter and a lot of bad blood, one might wonder how much "costly litigation" was avoided.

The problem is with anti-SLAPP itself. The court is being asked to adjudge the motives of a litigant in the absence of evidence for the very purpose of avoiding the cost of collecting evidence.

We don't have a SLAPP problem. We have a transaction costs problem. Slapping a bandage on it with anti-SLAPP only invites perverse results. And the harder one tries to get right a call about evidence without the evidence, the more costly and perverse the results will be.

The case is Nyberg v. Wheltle, No. 21-P-791 (Mass. App. Ct. Sept. 13, 2022) (temporary court posting). Judge Eric Neyman wrote the opinion for a unanimous panel.

UPDATE, Sept. 16: Notwithstanding the ill wisdom of anti-SLAPP, the fad flourishes. Europe and the UK continue their headlong advances toward legislation, and a new bill in the U.S. Congress seeks to bring anti-SLAPP to U.S. federal courts. Enjoy, judges! I don't expect that the extinction of the defamation cause of action will do much to remedy our problems with misinformation and vitriolic divisiveness, but that seems to be the experiment we're determined to carry out.

Judge Jackson Media Law, Torts Tour: From Big Meat 'COOL' to 'A Love of Food' and 'Everlasting Life'

[A revised version of this post is available to download as a paper on SSRN.]

The Hon. KBJ (Wikicago CC BY-SA 4.0)

Profiles of U.S. Circuit Judge Ketanji Brown Jackson have proliferated since her announcement as a leading contender for the U.S. Supreme Court seat vacated by Justice Breyer, and President Biden announced her nomination yesterday.

Judge Jackson has practiced in both criminal and civil environments, and in public and private sectors.  She focused in different practice roles on criminal law and appellate litigation, and she served on the federal bench at the trial and appellate levels.  So much of her work, and that which has garnered the most attention, for example in the excellent SCOTUSblog profile by Amy Howe, interests me as a citizen in general more than as an academic and media-law-and-torts aficionado.

Nevertheless, I compiled here cases of interest to me, which I found whilst poking around in her trial-court record on the U.S. District Court for the District of Columbia (D.D.C.).  You might not see these discussed elsewhere, but they might be of interest to comparative-bent, media-law types like me, if that's even a thing.  In my ordinary-joe capacity, I am not in step with Judge Jackson's inclinations in some other areas of law.  But any Supreme Court Justice, just like any political candidate, is going to be a mixed bag, especially in a compulsorily two-party system.

In the cases below, a decidedly unscientific sample, I like some of what I see, especially skeptical diligence in access-to-information cases, sound reasoning in intellectual property law, careful application of preemption doctrine in medical-product liability, and a couple of thought-provoking First Amendment entanglements.  I see a mixed record on venue for transnational cases, something I've been worrying about lately, but the outcomes are defensible as consistent with lousy U.S. law.

---

Main topics:
● Civil procedure/statute of limitations: WMATA v. Ark Union Sta., Inc. (2017)
● Copyright/music royalties: Alliance of Artists & Recording Cos. v. Gen. Motors Co. (2018)
● Defamation, false light/actual malice: Zimmerman v. Al Jazeera Am., LLC (2017)
● First Amendment/child pornography: United States v. Hillie (2018)
● First Amendment/commercial speech, compelled speech: Am. Meat Inst. v. U.S. Dept. Agric. (2013)
● FOIA/national security, law enforcement: Elec. Privacy Info. Ctr. v. U.S. Dept. Justice (2017)
● FOIA/Vaughn index, trade secrets, deliberative process: McKinley v. FDIC (2017)
● FOIA/deliberative process/personal privacy: Conservation Force v. Jewell (2014)
● FSIA/CCFA, forum non conveniens: Azima v. RAK Invest. Auth. (2018)
● FSIA/torture: Azadeh v. Iran (2018)
● Insurance/settlement: Blackstone v. Brink (2014)
● Product liability/causation, preemption, learned intermediary: Kubicki v. Medtronic (2018)
● Trademark/infringement: Yah Kai World Wide Enter. v. Napper (2016)
● Wrongful death/sovereign immunity, contributory negligence: Whiteru v. WMATA (2017)
● Wrongful death, product liability/forum non conveniens: In re Air Crash ... So. Indian Ocean (2018)

Quirky pro se claims:
● Defamation/litigation privilege/statute of limitations: Ray v. Olender (2013)
● Copyright/infringement: Buchanan v. Sony Music Ent. (2020)
● Copyright/pleading: Butler v. Cal. St. Disbursement Unit (2013)
● Copyright/subject-matter jurisdiction: Miller v. Library of Congress (2018)
● FTCA/FOIA, civil rights: Cofield v. United States (2014)
● Legal profession/sovereign immunity, absolute immunity: Smith v. Scalia (2014)

And the case with the best name:
● A Love of Food I v. Maoz Vegetarian USA (2014)

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WMATA (D.C. Metro) (Max Pixel CC0)

Civil procedure/statute of limitations.  WMATA v. Ark Union Sta., Inc., 269 F. Supp. 3d 196 (D.D.C. 2017).  The transit authority of the District of Columbia alleged that negligent maintenance by the Union Station America Restaurant, defendants' enterprise, resulted in a burst sewer pipe that severely damaged the Metro Red Line in 2011.  Judge Jackson opened the opinion cleverly, with what could almost be a dad joke: "This is a case about whose interests the [WMATA] serves when it spends money to repair damaged transit infrastructure in the Metrorail system—a proverbial third rail of this region's politics."  (My emphasis.  How could I not?)

D.C. has a generous five-year statute of limitations, but even that time had run.  Determining that the corporate-body WMATA remained a creature of government for relevant purposes, evidenced by its operational subsidies—cf. WMATA, infra, in negligence/sovereign immunity—Judge Jackson applied "the common law nullum tempus doctrine, which dates back to the thirteenth century," to exempt WMATA, as sovereign, from the statute of limitations.  The court explained: "Although the nullum tempus doctrine originated as a 'prerogative of the Crown[,]' the doctrine's 'survival in the United States has been generally accounted for and justified on grounds of policy rather than upon any inherited notions of the personal privilege of the king.' .... Specifically, 'the source of its continuing vitality ... is to be found in the great public policy of preserving the public rights, revenues, and property from injury and loss, by the negligence of public officers'" (citations omitted).

Pixabay

Copyright/music royalties.  Alliance of Artists & Recording Cos. v. Gen. Motors Co., 306 F. Supp. 3d 422 (D.D.C. 2018).  Judge Jackson dismissed a trade-group-plaintiff claim against automakers that their in-car CD hard drives created digital music recordings (DMRs) within the meaning of the federal statute, the Audio Home Recording Act of 1992 (AHRA), entitling copyright holders to royalties.  The AHRA was intended by Congress to protect the music industry against the alarming ease of creating high-fidelity copies of digital music by requiring manufacturers, importers, and distributors to employ copy-control technology.  Though having earlier allowed the claim to proceed against other technical challenges under the AHRA, the court decided, with the benefit of the first phase of discovery, that the defendant automakers' devices were not digital audio recording devices within the meaning of the statute.  In a methodical analysis, Judge Jackson explained that the content of the hard drives was excluded from the statutory definition of a DMR because of the coordinate presence of play software and other data.  The court rejected industry's theory that the appropriate frame of analysis was a particular partition of the drive, where music code might be located more readily.  The D.C. Circuit affirmed, 947 F.3d 849 (2020).

Zimmerman
(All Pro Reels CC BY-SA 2.0)

Defamation, false light/actual malice.  Zimmerman v. Al Jazeera Am., LLC, 246 F. Supp. 3d 257 (D.D.C. 2017).  Two professional baseball players, both called Ryan (a Zimmerman and a Howard), sued Al Jazeera America over a documentary, The Dark Side: Secrets of the Sports Dopers (2015), in which an interviewee linked the pair to performance-enhancing drugs.  The plaintiffs were clearly public figures, so actual malice was at issue.  In a thorough explication of the making of the film followed by a straightforward recitation of the media torts, Judge Jackson narrowed the plaintiffs' claims to allegations stated in the film, excluding liability for promotional content.  The court found it plausible, upon "contextual clues," that a reasonable viewer could attribute the interviewee's statements to the filmmakers: "The film weaves [the source's] statements into a broader narrative about doping in sports that the producers themselves have purportedly confirmed through their own investigation."  Judge Jackson then explicated the actual malice standard and its amped up, St. Amant, iteration of recklessness.  Critically, the plaintiffs alleged that the source had recanted his claims about the Ryans during a subsequent, yet pre-publication, interview, giving Al Jazeera serious cause to doubt the source's veracity, if not actual knowledge of falsity.

Naturally, this case might be of interest to Court watchers, given the present hubbub over the Sullivan actual malice standard.  I'm no fan, and I'll have more to say about that in the future.  Zimmerman hardly depicts a Judge Jackson ready to pitch in with Justices Thomas and Gorsuch to upend the status quo.  But she understands the standard and at least might be amenable to a semantically sincere construction of "reckless disregard."

First Amendment/child pornography.  United States v. Hillie, 289 F. Supp. 3d 188 (D.D.C. 2018).  Criminal cases are not usually my jam, but this one had a First Amendment angle.  Judge Jackson allowed conviction of a defendant for sexual exploitation of a minor and possession of images of a minor engaging in sexually explicit conduct.  On the facts as explicated by the court, that sure seems like it was the defendant's intent: "carefully placing and positioning the camera in hidden locations in J.A.A.'s bedroom and bathroom" and "succeed[ing] in capturing several extended images of J.A.A.'s exposed genitals."  Missing, though, was the express "lasciviousness" required by federal statutes, a fatal flaw for the prosecution, the D.C. Circuit ruled.  14 F.4th 677 (2021).  The defendant relied on statutes, not the First Amendment, but the D.C. Circuit referenced First Amendment case law extensively to support its interpretation of what Congress required.  Despite the substantial latitude to which the government is entitled to prosecute child pornography, beyond the legal constraints of outlawing obscenity as to adults, the appellate court concluded that Judge Jackson erred in permitting the jury to infer the defendant's lascivious objective.  One might expect that social conservatives would side with Judge Jackson on this case. 

Labeled French beef
(by Yuka for Open Food Facts CC BY-SA 3.0)

First Amendment/commercial speech, compelled speech.  Am. Meat Inst. v. U.S. Dept. Agric., 968 F. Supp. 2d 38 (D.D.C. 2013).  This must have been a grilling initiation to the federal bench for Judge Jackson.  A meat industry trade association challenged "country of origin labeling" regulations (truly, "the COOL Rule") promulgated by the Department of Agriculture, on, as one might expect from Big Meat, any legal theory that might stick to the cast iron: namely, the statutory authority of the Agricultural Marketing Act, promulgation under the Administrative Procedure Act, and the First Amendment.  The first two make my eyes glaze over; it's the First Amendment that grabbed me.  Meat and the First Amendment are, of course, long-time frenemies, going back to the heyday of The Jungle, and on through the secret grocery workers of journalism ethics fame.  Then there was the whole pink slime era, and animal-welfare activists came trespassing through to take pictures.  Oh how we laughed until we cried.

Anyway, in this case, Judge Jackson capably explicated the niche case law of compelled commercial speech and charted the fine if squiggly line separating free speech and business regulation.  The risk of deception was more than merely speculative here, she opined, and consumers were demonstrably confused.  Industry mistakenly claimed a burden on its pocketbook, rather than its speech rights, Judge Jackson admonished.  The COOL Rule was reasonable and hardly burdensome for its expectation of truthful and uncontroversial disclosure.  Preliminary injunction was denied.

Big Meat was not easily deterred; the case went for a rodeo ride the following year.  The D.C. Circuit affirmed, 746 F.3d 1065 (Mar. 28, 2014), vacated upon granting rehearing en banc, No. 13-5281 (Apr. 4, 2014), and then reinstated affirmance (July 29, 2014).

U.S. Defense Department image (C)

FOIA/national security, law enforcement.  Elec. Privacy Info. Ctr. v. U.S. DOJ, 296 F. Supp. 3d 109 (2017).  Privacy advocate EPIC sued DOJ under the federal Freedom of Information Act (FOIA) to learn more about past wiretap spying under the post-9/11 Foreign Intelligence Surveillance Act.  EPIC was especially keen to see how the government had justified surveillance requests it set before the famously amenable Foreign Intelligence Surveillance Court (FISC).  Namely, EPIC sought: "(1) Westlaw printouts that were attached to a certain brief that the government submitted to the [FISC], and (2) portions of certain reports that DOJ issued to Congress, consisting of summaries of FISC legal opinions, descriptions of the scope of the FISC's jurisdiction, and discussions of process improvements."  DOJ produced a Vaughn index.  Ex parte and in camera, Judge Jackson reviewed the materials and adjudged them properly withheld under exemptions 1 (national security as to the congressional reports), and 3 and 7(E) (national security statutes and law enforcement techniques, as to everything else), with some nitpicks as to redactions and notations.  I'm sure EPIC did not care for the result, but the transparency problem seems to be a statutory one.  Judge Jackson did a pretty deep dive on the docs.

FOIA/Vaughn index, trade secrets, deliberative process.  McKinley v. FDIC, 268 F. Supp. 3d 234 (D.D.C. 2017), then No. 1:15-cv-1764 (D.D.C. Sept. 30, 2018).  Judicial Watch, per experienced FOIA-requester attorney Michael Bekesha, represented a plaintiff against the FDIC.  In the reported opinion in 2017, the court compelled the FDIC to produce a Vaughn index. The Judicial Watch plaintiff was investigating FDIC placement of Citibank into receivership in 2008 and 2009.  The FDIC sought to protect 12 documents as trade secrets and eight documents as deliberative process.  The court faulted the FDIC for failing to support either claim of exemption with any contextual explanation, including the nature of its decision-making authority on the latter claim.

I note that Judge Jackson's reasoning on the trade-secret analysis might have been undermined subsequently by the Supreme Court's industry-deferential ruling on exemption 4 in Food Marketing Inst. v. Argus Leader Media (U.S. 2019).  (I signed on to an amicus on the losing side in FMI.)  In an earlier FOIA case, Government Accountability Project v. FDA, 206 F. Supp. 3d 420 (D.D.C. 2016), Judge Jackson similarly relied on pre-FMI doctrine to reject, as unduly conclusory, FDA resistance, at the behest of a pharma trade association, to production of records on antimicrobial medications.

Vaughn index in hand on remand, plaintiff persisted in challenging the adequacy of the FDIC search and "whether withheld information 'has already been made public through an official and documented disclosure.'"  Judge Jackson rejected both claims in a short opinion in 2018.  She found the first merely speculative.  As to the second, the plaintiff "argued that the FDIC's withholdings were improper because the requested information was 'officially' acknowledged by Former FDIC Chairman Sheila Bair in the book Bull by the Horns—a book that Bair published after leaving office."  Judge Jackson held that "that contention, too, must be rejected. A book or other material that a former government official publishes in her personal capacity does not qualify as an 'official acknowledgment' of the information contained therein for the purpose of FOIA."

Bison trophy at Beaty Biodiversity Museum, Vancouver, B.C.
(by Nikkimaria CC BY-SA 3.0)

FOIA/deliberative process, personal privacy.  Conservation Force v. Jewell, 66 F. Supp. 3d 46 (D.D.C. 2014).   A nonprofit foundation that promotes big-game hunting sued U.S. Fish and Wildlife, in the Department of Interior, under the FOIA to obtain records related to denials of permits that would allow the import into the United States of hunting trophies of Canadian bison.  For the record, I'm fine with denying those permits, and I could be persuaded to block importation of the hunters, too.  Nevertheless, transparency....  

Judge Jackson authored a workmanlike exploration of various exemption theories asserted by Interior: accepting attorney-client privilege (exemption 5) and personal-information exemption (6); rejecting deliberative-process exemption, crime-fraud exception to attorney-client privilege, and work product privilege (all exemption 5).  She cited House reports to bolster her interpretations of what exemptions 5 and 6 require.  In a pattern that became familiar, or maybe just speaks to agency neglect, she faulted Interior for a conclusory ("woefully short") Vaughn index that failed to support exemption.  As to exemption 6, which has been aggressively enlarged by federal courts in furtherance of the privacy rage, Judge Jackson accepted Interior's redaction of employee personal information as more or less immaterial to the sought-after accountability.  The D.C. Circuit affirmed summarily in No. 15-5131 (Dec. 4, 2015).

FSIA/CFAA; forum non conveniens.  Azima v. RAK Invest. Auth., 305 F. Supp. 3d 149 (D.D.C. 2018).  Judge Jackson was reversed in this one, 926 F.3d 870 (D.C. Cir. 2019), but I prefer her analysis.  Under the Computer Fraud and Abuse Act (CFAA) and for common law conversion and unfair competition, plaintiff, a Kansas City, Mo., businessman, sued a business partner, a public investment authority (RAKIA) of the United Arab Emirates (UAE, specifically the Emirate of Ras Al Khaimah), after their business relationship soured, alleging that RAKIA "commissioned the repeated surreptitious hacking of his personal and business laptops ... and then published disparaging material that was illicitly gleaned from Azima's computers...."  RAKIA sought dismissal under the Foreign Sovereign Immunities Act (FSIA) on grounds of sovereign immunity, under a contractual forum selection clause, and, relatedly, under the common law venue doctrine of forum non conveniens.

Judge Jackson rejected all three grounds.  The plaintiff plausibly portrayed RAKIA, an investor rather than governing entity, as a commercial actor and alleged tortfeasor, bringing into play the FSIA commercial and tort exceptions.  As alleged, the hacking would have inserted malware into the plaintiff's computer systems, even if the insertion occurred abroad, so the locus of alleged tortious injury was Kansas City, bolstering the FSIA analysis.  The forum selection clause did not pertain, Judge Jackson reasoned, because it was articulated in the parties' contract for a prior commercial venture; the contract hardly covered subsequent hacking.

As to venue, Judge Jackson faulted RAKIA for failing to meet its "heavy burden" to show that Azima would get a fair shake in RAKIA's preferred venue of London, where RAKIA might have hoped for a more favorable outcome on immunity.  I like that analysis—but cf. infra, re wrongful death/forum non conveniens.  My comparative law class just read Professor Vivian Curran's masterful recent work on foreign law in U.S. courts, in which she convincingly demonstrated U.S. federal judges' penchant to over-employ forum non conveniens and thus shirk their responsibility to adjudicate.  

Perhaps proving Prof. Curran's thesis, the D.C. Circuit disagreed, holding that the forum selection clause burdened the plaintiff with having to show why London would not work as an appropriate venue, else face dismissal for forum non conveniens.  I would be remiss not to mention also: Prof. Curran further faulted the courts for lazy reliance on partisan evidence (my words) when foreign law is concerned, and both Judge Jackson and the D.C. Circuit declared a lack of any responsibility to investigate themselves the adequacy of London as a forum.

FSIA/torture.  Azadeh v. Iran, 318 F. Supp. 3d 90 (D.D.C. 2018).  Plaintiff was an inmate of an Iranian jail and alleged torture and intentional torts at the hands of the republic.  A U.S. court ruling in such a matter is principally symbolic.  Iran will not respond; a plaintiff might hope to recover against a U.S. government claim on frozen assets.  Accordingly, in this case, a magistrate judge recommended entering default judgment in favor of the plaintiff.  I have here omitted cases in which Judge Jackson adopted in toto a magistrate's report; in this case, she did not.

Relying on a manual of the U.S. district courts, the plaintiff had effected service on the state of Iran erroneously, under the wrong order of process under the FSIA.  Judge Jackson wrote: "Judges are sometimes called upon to set aside heart-wrenching and terrible facts about a claimant's treatment at the hands of a defendant and enforce seemingly draconian, technical mandates of law. This is an especially difficult duty when the machinery of the judicial system itself appears to have played a role in the claimant's mistaken view of the applicable legal requirements. The somber circumstances of the instant case present one such scenario...."  The court put the default judgment on hold and gave the plaintiff a second crack at proper service.  Judge Jackson subsequently entered default judgment against Iran, in the sum of $36,411,244, in No. 1:16-cv-1467 (D.D.C. Sept. 5, 2018).  Reproduced therein, the magistrate's report detailed the plaintiff's ordeal.

Insurance/settlement.  Blackstone v. Brink, 63 F. Supp. 3d 68 (D.D.C. 2014) (D.C. law).  In an insurance dispute arising from the alleged wrongful death of a pedestrian, plaintiffs and their attorney apparently changed position on whether to settle with defendant-driver's insurer, State Farm, for the defendant's $100,000 policy limit.  After a telephone conversation, State Farm sent a check and a release form to the plaintiffs' attorney.  The check crossed in the mail with a letter from the attorney rejecting the offer.  Applying D.C. law, Judge Jackson determined that the parties had reached an enforceable agreement on the telephone, evidenced by the specificity of the attorney's instructions on how and where to send the check.  The court wrote of the parties' competing narratives: "On this record, it is far more plausible that [plaintiff counsel] accepted [State Farm's] offer on behalf of his clients [plaintiffs], intended that it be final and binding, and later had misgivings about his earlier decision to accept. Unfortunately for Plaintiffs, courts have long held that such buyer's remorse does not vitiate a demonstrated initial intent to be bound by the settlement agreement" (original emphasis).

A Medtronic product (Alan Levine CC BY 2.0)

Product liability/causation, preemption, learned intermediary.  Kubicki v. Medtronic, 293 F. Supp. 3d 129 (D.D.C. 2018) (D.C. law).  Parents of a diabetic consumer who suffered traumatic brain injury as a result of low blood-sugar levels sued the manufacturers of an insulin pump, alleging various theories of product liability.  Judge Jackson threw out some claims, against one manufacturer and upon one theory, as time barred, because plaintiffs had added them to the complaint too late for the District's three-year statute of limitations.  Judge Jackson navigated the tricky shoals of preemption doctrine to find some but not all liability theories expressly preempted, and the remainder not impliedly preempted, by FDA medical-device approval.  A sliver of remaining plaintiff theories survived summary judgment for presenting triable questions of fact on causation and on the learned intermediary doctrine relative to alleged failure to warn.

Trademark/infringement.  Yah Kai World Wide Enter. v. Napper, 195 F. Supp. 3d 287 (D.D.C. 2016).  The defendant ran the Everlasting Life Restaurant & Lounge as an enterprise of the African Hebrew Israelite community, "who claim to be descendants of biblical Israelites and who follow a strict vegan diet," until their relationship soured.  The plaintiff-community sued when the defendant persisted in doing business as "Everlasting Life," which a community leader had registered as a service mark (pictured).  Trial did not go well for the defense; Judge Jackson wrote that the defendant "displayed some signs of dissembling, such as the evasive nature of his answers with respect to the existence of a purportedly independent and unincorporated food business that he claimed to have created by himself in his home garage prior to the Community's formation of its restaurant businesses."  The court found likelihood of confusion and, accordingly, infringement.  If only defendant had partnered with Big Meat to serve litigious hungry hunters returning from Canada.

Wrongful death/sovereign immunity, contributory negligence.  Whiteru v. WMATA, 258 F. Supp. 3d 175 (2017).  This time the WMATA, the D.C. transit authority, was a negligent defendant rather than plaintiff—cf. WMATA, supra, in civil procedure/statute of limitations—and this time, the authority was ruled not sovereign for purposes of immunity.  In what was essentially a slip-and-fall, the plaintiff-decedent's estate and parents blamed the WMATA for not discovering the decedent—a lawyer, by the way—injured on a train platform, in time to provide life-saving medical treatment.  A creature of state compact and D.C. statute, the WMATA enjoys an immunity analogous to that of federal defendants under the Federal Tort Claims Act (FTCA).  Borrowing the FTCA rule of immunity for discretionary governmental functions, which often presents a frame-of-reference problem in its granular application, Judge Jackson rejected the WMATA theory that officials' conduct was discretionary.  Rather, properly, I think, the court accepted the plaintiff's framing of the case as alleging unreasonable comportment with the WMATA standard operating procedures for platform inspection.

At that time in 2017, factual questions in the case precluded summary judgment.  However, in 2020, Judge Jackson awarded the WMATA summary judgment upon the plaintiff's contributory negligence.  480 F. Supp. 3d 185.  The District is not a comparative fault jurisdiction.  The plaintiff's heavy intoxication when he fell was undisputed, and, Judge Jackson opined, video evidence plainly showed that the plaintiff fell because he over-relied on a low wall for support.  Just this month, the D.C. Circuit reversed and remanded,  ___ F.4th ___ (Feb. 11, 2022), holding that under D.C. law for common-carrier liability, contributory negligence is not the complete defense that it usually is in negligence in the District.

Suggested search area for MH370 debris
(Andrew Heneen CC BY 4.0)

Wrongful death, product liability/forum non conveniens.  In re Air Crash Over the Southern Indian Ocean, 352 F. Supp. 3d 19 (D.D.C. 2018) (multi-district litigation).  This case marks a tragic disappointment.  Judge Jackson dismissed for improper venue, forum non conveniens, the claims of families of passengers of missing airliner MH370 against defendants including Malaysia Airlines and Boeing.  The claims arose under the Montreal Convention on international air carriage, common law wrongful death, and product liability.  The thrust of the problem is that what happened to MH370, including the final resting place of the fuselage and an understanding of what went wrong, remains a mystery, and even less was known in 2018.  My money is on pilot hijacking, by the way; read more in the definitive account to date by the incomparable William Langewiesche for The Atlantic. 

Judge Jackson opined:

All told, the Montreal Convention cases in this MDL involve only six U.S. citizens with a direct connection to the Flight MH370 tragedy, as either plaintiffs or decedents. Among the hundreds of passengers on that flight, only three were citizens of the United States, and while the United States undoubtedly has a strong public interest in the claims involving their deaths, its interest pales in comparison to Malaysia's interest in litigating these claims. Malaysia's public interest includes not only an interest in the untimely deaths of the Malaysian pilot and crew, but also an interest in determining precisely what happened to Flight MH370, given that a Malaysian airline owned, operated, and maintained the aircraft; the flight took off from an airport in Malaysia for a destination outside the United States; and it disappeared from radar when Malaysian air traffic controllers were handing off the flight. And Malaysian authorities made substantial investments of time and resources in the wake of this disaster: Malaysia conducted extensive civil and criminal investigations, and changes in Malaysian law led to the creation of a new national Malaysian airline. It is Malaysia's strong interest in the events that give rise to the claims at issue here that makes this a distinctly Malaysian tragedy, notwithstanding the presence of the few Americans onboard Flight MH370. 

I really want to lash out against this reasoning.  But probably it would be like when I was a little kid fed up with allergy-testing shots and kicked my doctor.  Despite my reservations about forum non conveniens, see Prof. Curran, supra, I admit that my frustration stems from doubt that the case could be fairly prosecuted in Malaysia, even if the plane is found, rather than a confidence that the United States is a logical venue.  It might not even matter, as the Montreal Convention probably would curb recovery even in U.S. courts.  Insofar as I have any legitimate gripe, it's in part that forum non conveniens is just a witless rule out of step with a globalized world, and in part that Judge Jackson should have done some independent investigation of the adequacy of Malaysia as a forum.

The aftermath of the MH370 disappearance revealed concerning deficits in transparency, and, thus, potentially in accountability, in the Malaysian investigative process.  And while I don't think Boeing is to blame, having watched Downfall: The Case Against Boeing (2022) on Netflix just last weekend—Langewiesche wrote about the 737 MAX for The New York Times—leaves me distrustful.  Indeed, however relying upon precedent, Judge Jackson declined MH370 plaintiffs' last-ditch demand that, at least, Boeing be compelled to promise to abide by U.S. discovery in connection with any subsequent litigation abroad.

The D.C. Circuit affirmed, 946 F.3d 607, and the Supreme Court denied cert., 141 S. Ct. 451, in 2020.

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Here are some quirky pro se claims, just to stimulate the noggin.

Defamation/litigation privilege/statute of limitations.  Ray v. Olender, No. 13-1834 (D.D.C. Nov. 21, 2013).  Judge Jackson dismissed an odd $5m pro se defamation claim against an attorney, apparently based on a 1965 suit for copyright infringement and counter-suit.  She held the claim barred by the one-year D.C. statute of limitations and, anyway, based on statements in pleadings, protected by the litigation privilege.

Copyright/infringement.  Buchanan v. Sony Music Ent., No. 18-cv-3028 (D.D.C. May 26, 2020).  In a wide-ranging complaint, pro se plaintiff accused defendant music producers of stealing from songs he submitted for consideration.  Dismissed, because three of four songs were not registered; plaintiff could not show that any producer actually received a copy of the fourth song demo tape; and plaintiff anyway failed to allege substantial similarity, beyond allegation of "steal[ing]," between defendants' hits and the plaintiff's "I Gos Ta Roll." 

Copyright/pleading.  Butler v. Cal. St. Disbursement Unit, No. 13-1684 (D.D.C. Oct. 23, 2013).  Pro se plaintiff accused the state of copyright infringement for using his name in all capital letters.  Dismissed for failure to plead adequately.  BUTLER.

Copyright/subject-matter jurisdiction.  Miller v. Library of Congress, No. 1:18-cv-02144 (D.D.C. Nov. 5, 2018).  Judge Jackson dismissed for lack of subject matter jurisdiction a $100m pro se copyright infringement claim by an author of "a book of songs" who alleged that the Library of Congress stole the book and allowed it to be used by others.  Held, he should have filed in the Federal Claims Court.  I'd return the book, but the fines....

FTCA/FOIA, civil rights.  Cofield v. United States, 64 F. Supp. 3d 206 (D.D.C. 2014).  A Maryland prisoner, pro se plaintiff sought billions in damages against ICANN and the Obama Administration for improper FOIA denials and race discrimination.  On the latter count, the plaintiff essentially accused the government of establishing a business monopoly in ICANN that leaves African-American persons "intentionally omitted, to be left behind when it comes to technology ... by design[.]"  An intriguing idea, but not the best spokesperson.  The court dismissed for sovereign immunity, as the Federal Tort Claims Act (FTCA) authorizes neither FOIA complaints, which do not entitle a plaintiff to tort damages, nor constitutional claims.

Defendant-Justice Scalia (Shawn CC BY-NC 2.0)

Legal profession/sovereign immunity, absolute immunity.  Smith v. Scalia, 44 F. Supp. 3d 28 (D.D.C. 2014).  Yup, that Scalia.  The pro se plaintiff was denied admission to the Colorado Bar after "refus[ing] to submit to a mental status examination," and then sued officials, including judges who denied his appeals.  Even the International Covenant on Civil and Political Rights, which rated among plaintiff's theories, cannot overcome federal sovereign and judicial absolute immunities, Judge Jackson held.  She declined to order Rule 11 sanctions, but did hit the frequent-filing plaintiff with a pre-filing injunction, going forward.

Maoz Falafel, Paris
(Björn Söderqvist CC BY-SA 2.0)

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Finally, I don't really care what happened in this case; I just love its name: A Love of Food I v. Maoz Vegetarian USA (D.D.C. 2014).  Plaintiff Love of Food was "a franchise of Maoz's vegetarian quick service restaurant" in D.C.  When the business failed, Love of Food blamed Maoz.  Maoz had failed to register its offering prospectus properly with the state of Maryland, but, Judge Jackson held, that omission did not give Love of Food standing.  The court issued mixed results on the, uh, meatier claims of misrepresentation, finding a material dispute of fact over the veracity of startup estimates.

Just wait 'til Big Meat hears about this.

I gos ta roll.

Code might inevitably regulate journalism in digital age

The U.K. Information Commissioner's Office is working on a "journalism code of practice" to legislate against defamation and invasion of privacy by mass media.

Principally and ostensibly, the code is intended to bring media law into conformity with U.K. data protection law, essentially the European General Data Protection Regulation (GDPR), including the stories "right to be forgotten," or right to erasure (RTBF). On the ground, the picture is more complicated. The British phone hacking scandal and following Leveson Inquiry constitute a strong causal thread in public receptiveness to media regulation.

Cambridge legal scholar David Erdos analyzed the draft code for the INFORRM public in part one and part two postings in October.  The code incorporates media torts such as defamation of privacy and misuse of private information (MOPI), the latter a common law innovation of British courts to facilitate enforcement of data protection rights. I have posited in other venues that common law tort similarly might provide a way forward to fill gaps in information privacy law in the United States.

Journalism and data protection rights have been on a collision course for a quarter century, like a slow-motion car wreck, and the draft journalism code is a harbinger of the long anticipated impact.  Back in 1995, when the EU GDPR-predecessor Data Protection Directive was brand new, the renowned media law scholar Jane Kirtley published an article in the Iowa Law Review, "The EU Data Protection Directive and the First Amendment: Why a 'Press Exemption' Won't Work."  Kirtley foresaw data protection and the First Amendment's arguably irreconcilable differences before most U.S. scholars had even heard of data protection.

In those innocent days, journalism ethics was reshaping itself to preserve professionalism in the newly realized and anxiety-inducing 24/7 news cycle.  A key plank in the new-ethics platform was its essentiality to resist regulation.  In 2000, media law attorney Bruce Sanford published the book Don't Shoot the Messenger: How Our Growing Hatred of the Media Threatens Free Speech for All of Us.  Then in 2001, everything changed, and mass media and their consumers became engrossed by new concerns over government accountability.

In a way, the consolidation of media regulation in a generation of code could be a relief for journalism, especially on the European continent.  In an age of ever more complex regulatory mechanisms, codification can offer bright lines and safe harbors to guard against legal jeopardy.  Information service providers from local newspapers to transnationals such as Google are struggling to comply with new legal norms such as the RTBF, and there is as yet little evidence of uniformity of norms, much less convergence. Yet even if industry ultimately embraces the security of code, what's good for business is not necessarily good for wide-ranging freedom of expression. 

Courts, too, are struggling with novel problems.  For example, in late November, the European Court of Human Rights ruled in Biancardi v. Italy that RTBF de-indexing orders extend beyond search engines and bind original news publishers.  Writing for Italian Tech and INFORRM, attorney Andrea Monti fairly fretted that the decision effectively compels journalistic organizations to expend resources in constant review of their archives, else face liability in data protection law.  The result, Monti reasoned, will be to discourage preservation, manifesting a threat to the very existence of historical record.

On the one hand, it's foolish to wring one's hands for fear that journalism is being newly subordinated to legal regulation.  Tort itself is a regulatory mechanism, and defamation has been around for a long time, notwithstanding the seeming absolutism of the First Amendment.  On the other hand, media regulation by law looks nothing like the punctilious supervision of regulated industries, including the practice of law.

In my own education, I found the contrast in approaches to ethics perplexing.  In journalism school, my ethics class had been taught aptly by a religion scholar who led impassioned discussions about handout hypotheticals.  In law school, the textbook in legal profession hit the desk with a thud for what was as much a study of model or uniform code as was crim or sales.

With no "First Amendment" per se, media regulation by code is not the novelty in the U.K. that it would be in the United States.  Still, with privacy and digital rights sweeping the globe, law is poised to regulate journalism in new ways everywhere, whether through the subtlety of common law or the coercive power of civil regulation.  American courts will not be able to escape their role in reshaping fundamental rights for the digital world, as European courts are at work doing now.  Kirtley foresaw the issues in 1995, and the chickens are slowly but surely turning up at the roost.

The present ICO consultation closes on January 10, 2022.

Latest installment of Trump family litigation saga includes tortious interference claim against media

A leaked Trump 1040 from 2005

Former President Donald Trump has sued his niece, Mary Trump, and The New York Times Co. in the latest installment of intrafamilial litigation related to Mary's 2020 book, Too Much and Never Enough.

Filed yesterday in Dutchess County, New York, this latest lawsuit (complaint at CNS; Times's own coverage) mainly alleges breach of contract in the earlier settlement of litigation by Mary against Donald over the handling of the estate of Donald's father, Fred, who died in 1999.  I wrote on the course blog for my Trump Litigation Seminar in 2020 about another lawsuit, which is ongoing, by Mary against Donald over the estate of her father, Fred, Jr.; and about a suit by Donald's brother Robert, who died in 2020, which failed to enjoin publication of Mary's book.

The instant complaint alleges that Mary Trump was the source of Trump tax records published by The New York Times in its 2020 exposé.  The bits that interest me are counts of tortious interference with contract and of "aiding and abetting" tortious interference—or the civil equivalent of aiding and abetting, more accurately described as "providing substantial assistance or encouragement"—against the Times.  The complaint alleges that the Times "relentlessly" encouraged Mary to leak the tax records while knowing full well that doing so would breach her confidentiality agreement.

An intentional tort, tortious interference is not confined to business or media, though it's often classified as a "business tort," its usual injury being economic loss.  And it's often included in mass comm law treatments as a "media tort," because it's sometimes deployed against news media.

The paradigmatic case of an interference tort leveled against news media is the threat of Brown & Williamson Tobacco to sue CBS for its 1995 60 Minutes interview with whistleblower-scientist Jeffrey Wigand in violation of Wigand's non-disclosure agreement.  There is a classic scene in the feature film about the matter, The Insider, in which CBS producer Lowell Bergman (Al Pacino) loses his marbles upon admonition by CBS counsel Helen Caperelli (Gina Gershon) that truth is not a defense to interference, rather is an aggravating factor.  "What is this, Alice in Wonderland?" Bergman wonders aloud.  The instant Trump case is compelling for its similarity to the Insider facts.  

Interference as a media tort in the public imagination, or at least the lawyer-public imagination, surfaces periodically.  I wrote about the issue in 2011 when Wikileaks for a while threatened to spill the secrets of big banks.  (That fizzled.)  The high incidence of non-disclosure agreements in settlements of Me Too matters, and the former President's enthusiasm for NDAs combined to fuel another spurtive engagement with the issue in recent years. 

The issue prompts sky-is-falling missives from media because the role of, or any role for, the First Amendment as a defense to tortious interference is fuzzy.  In reality, the problem rarely gets that far.  Without unpacking the nitty gritty, it suffices to say that tortious interference has public policy built into its rigorous heuristic.  It is prohibitively difficult to press the tort against a publisher operating with at least a gloss of public interest.

The Trump complaint tries to circumnavigate that problem by accusing the Times of profit motive in its pursuit and publication of the tax records.  But the history of tort litigation against mass media is littered with failed attempts to drive the stake of profit-making through the heart of the journalistic mission.  Whatever degradations have afflicted mass media in our age of misinformation, no court is going to buy the argument against the Times on that score, at least not on these facts—cf. Palin v. N.Y. Times (N.Y. Times), in which the alleged editorial misconduct is substantially more egregious.

The case is Trump v. Trump, Index No. 2021-53963 (N.Y. Sup. Ct. filed Sept. 21, 2021).

'Don't panic,' lawyers say, as Oz High Court clears way for website liability over defamatory user comments

The High Court of Australia last week greenlit defamation claims against website operators for user comments, the latest evidence of crumbling global immunity doctrine represented in the United States by the ever more controversial section 230.

There is plenty news online about the Aussie case, and I did not intend to comment.  For the academically inclined, social media regulation was the spotlight issue of the premiere Journal of Free Speech Law.

Yet I thought it worthwhile to share commentary from Clayton Utz, in which lawyers Douglas Bishop, Ian Bloemendal, and Kym Fraser evinced a mercifully less alarmist tone when they wrote, "don't panic just yet."

The Australian apex court extended the well known and usual rule of common law defamation, when not statutorily suspended: that the tale bearer is as responsible as the tale maker.  In the tech context, in other words, "[b]y 'facilitating, encouraging and thereby assisting the posting of comments' by the public," the defendants, notwithstanding their actual knowledge or lack thereof, "became the publishers," Bishop, Bloemendal, and Fraser wrote.

But it's a touch more complicated than purely strict liability.  "What is relevant is an intentional participation in the process by which a posted comment may become available to be accessed by other Facebook users," Bishop, et al., opined.  "So does that mean you should take down your corporate social media pages? That would be an over-reaction to this decision."

The lawyers emphasized that this appeal was interlocutory.  On remand in New South Wales, the media defendants may assert defenses, including innocent dissemination, justification, and truth.  Bishop, et al., advise:

In the meantime, if your organisation maintains a social media page which allows comments on your posts, you should review your monitoring of third-party comments and the training of your social media team in flagging and (if necessary) escalating problems to ensure you can have respectful, non-defamatory conversation with stakeholders.

Funny they should say so.  Coincidentally, I gave "feedback" to Google Blogger just Friday that a new option should be added for comment moderation, something like "archive," or "decline to publish for now."  The only options Google offers are spam, trash, and publish.

I have two comments posted to this blog in recent years that I hold in "Awaiting Moderation" purgatory, because they fit none of my three options.  Every time I go to comment moderation, I have to see these two at the top.  The comments express possible defamation: allegations of criminality or otherwise ill character about third parties referenced on the blog.  I don't want to republish these comments, because I do not know whether they are true.  But I don't want to trash them, because they are not necessarily valueless.  Moreover, they might later be evidence in someone else's defamation suit.

I moderate comments for this blog, so I don't think it's too much to ask the same of anyone else who publishes comments, whether individual, small business, or the transnational information empires that peer over my shoulder.  

I do worry, though, about how that works out for the democratizing potential of the internet.  I'm trained to recognize potentially defamatory or privacy invasive content; I've done it for a living.  Are we prepared to punish the blogger who contributes valuably to the information sphere, but lacks the professional training to catch a legal nuance?  Or to pay the democratic price of disallowing dialog on that writer's blog?  As a rule, ignorance of the law is no excuse, in defamation law no less than in any other area.  But understanding media torts asks a lot more of the average netizen than knowing not to jaywalk.

I don't profess answers, at least not today.  But I can tell that the sentiment of my law students, especially those a generation or more younger than I, is unreticent willingness to hold corporations strictly liable for injurious speech on their platforms.  So if I were counsel to Google or Facebook, I would be planning for a radically changed legal future.

Media want anti-SLAPP security while ignoring real harm, and nobody wants to talk about tort dysfunction

Christian Dorn from Pixabay

On April 7, one of my favorite podcasts, WNYC's On The Media (OTM), ran a story, not its first, on anti-SLAPP laws: statutes in the states (not yet federal) designed to combat "strategic lawsuits against public participation."

I've written about anti-SLAPP many times.  I'm not a fan of the statutes.  The OTM piece is good and important, but it tells only one side of the anti-SLAPP story.  That's a common, and forgivable, shortcoming in mass media coverage of itself.

Why I Care, and You Should Too

I've been a media advocate since I was hooked by my first high school journalism class in the 1980s (hat tip at Mrs. McConnell).  I've been a media defense lawyer and a defamation plaintiff, besides a classroom teacher of media law and the First Amendment.  My hang-up is justice, or the remediation of injustice (yes, I'm a J), and there's plenty of both in the way our news media work in the shadow cast by the shield of the First Amendment.  Advocating for the devil in my classroom, I was a critic of the Sullivan/Gertz actual malice standard decades before it became fashionable, or even socially acceptable in academic circles, to question the supposed sine qua non of free speech.

So when the media defense bar teamed up with state legislators to start piling on anti-SLAPP statutes as another death-blow weapon in the scorched-earth media defense arsenal in the late 1990s, I was skeptical from the get-go.  Upon the siren song of free speech absolutism, now decades on, Americans have fallen into the lazy habit of denying access to our courts to would-be plaintiffs who are genuinely victimized.  As a scholarly observer of tort law, I can tell you, bad things happen when people are systematically disenfranchised from justice.  What's worse, as empirical research has consistently told us for decades, and I confirm from my own experience, the ordinary defamation plaintiff is not the money-grubbing opportunist that tort reformers (or distorters) wish us to imagine; rather, what a defamation plaintiff usually wants, first and foremost, is the truth.  News media defendants might remember the truth from journalism school.

How did we get to a point that when a plaintiff and defendant want the same thing, it's still a zero-sum game?  If with the best of intentions, the U.S. Supreme Court in the civil rights era so distorted the state landscape of defamation law that media defendants lost all interest in compromise, even if the simple compromise is to correct the record and speak the truth.  Sullivan biographer Anthony Lewis recognized this problem in the penultimate chapter of his otherwise-paean to the case in 1992.  And this is why the 1993 Uniform Correction or Clarification of Defamation Act proved a profound failure.  The uniform law proposed using a First Amendment-compliant carrot rather than a constitutionally prohibited stick to coax media defendants to hear complainants out before facing off in court.  But, media defendants implicitly pleaded in response, why should we listen when we always win?

Anti-SLAPP laws are perfect for the thing they're perfect for: To shut down an obvious attempt to abuse the legal process with a sham claim when the plaintiff's true motivation is to harass or silence a defendant engaged in constitutionally protected speech or petitioning, especially when it's whistle-blowing.  "I know it when I see it" is why a South African judge recently allowed anti-SLAPP as an "abuse of process" defense even in the absence of a statute, shutting down a mining company's implausible suit against environmentalists.  Meanwhile, the American anti-SLAPP statute, the darling offspring of mass media corporate conglomerates and financially beholden legislators, tears through court dockets with no regard for the balance of power between the parties.

As a result, sometimes, like the infinite monkey who stumbles onto Hamlet, anti-SLAPP works.  Other times, David is summarily shut out of court at the behest of Goliath.  The dirty secret of the media defense bar is that it's pulling for the latter scenario more often than the former, because Davids pose a much greater threat to the corporate bottom line than the occasional, over-hyped monkey.

Squirrel!  SLAPPs Aren't the Problem

SLAPP suits only work because of a bigger dysfunction in tort law:  Transaction costs are way too high.  Lawyers and litigation cost too much.  (Law school costs too much, but that's another rabbit hole.)  Our civil dispute resolution system, in contrast with those of other countries, so prizes precision as to draw out civil proceedings to absurd expectations of time, energy, heartache, and money.  Too often, at the end of a litigation, both exhausted parties are net losers, and only the lawyers, on both sides, come out ahead.  The tort system is supposed to engender social norms and deter anti-social conduct through its compensation awards, not its overhead costs.  We've so contorted torts, especially when accounting for suits that are never brought, that the norm-setting and deterrent effects of transaction costs dwarf the impact of outcomes.

Anti-SLAPP tries to solve the problem of runaway transaction costs by summarily dismissing claims on the merits when a plaintiff cannot prove the case at the time of filing, usually without the benefit of discovery.  The game is rigged, because the evidence the plaintiff needs is in the possession of the defense.  So plaintiff's unlikely path to proof, already mined with common law and constitutional obstacles to press the scale down on the defense side, is well obliterated by anti-SLAPP. We could use this "solution" of summary dismissal across the board to cut back on tort litigation.  But people wouldn't stand for it in conventional personal injury, because then we'd be overrun with uncompensated and visibly afflicted plaintiffs, and the injustice would be undeniable.

If we dared have the creativity to experiment with more effective dispute resolution mechanisms as alternatives to tort litigation, we might best start with defamation cases, in which we know what plaintiffs want, and it's not money.  Yet here we are, hamstrung by the Supreme Court, disenfranchised by defense lobbyists, and forced to swallow the dangerous myth that we can have free speech only if we stand aside and let mass media deliver misinformation with impunity.

The Case of the Charity Exposé
and the Lamentations of the Media Defense Bar

In the April segment, OTM host and media veteran Bob Garfield interviewed Victoria Baranetsky, general counsel for the 501(c)(3) nonprofit Center for Investigative Reporting (CIR), about a lawsuit by also-501(c)(3) nonprofit Planet Aid against CIR.  The lawsuit arose from a 2016 series on the CIR Reveal platform, in which CIR alleged abuse of charitable status by the organization through, inter alia, improper diversion of donor funds.  A California federal judge dismissed the 2018 complaint in March 2021, and Planet Aid, which is appealing, and CIR have very different takes on what that dismissal meant.  Planet Aid emphasizes "46 statements" in the reporting that the court found false, notwithstanding anti-SLAPP dismissal, while CIR emphasizes "several million dollars" of legal costs, "vastly exceed[ing] ... insurance coverage" and impossible to pay without pro bono aid.

CIR is not an outfit that publishes without doing its homework.  So without opining on the merits of the lawsuit, I admit, my gut allegiance in the case tends to CIR.  And I think it's OK that OTM interviewed only Baranetsky.  "Balance" as a journalistic value too often feeds the "talking heads" phenomenon we know from the disintegration of television broadcast journalism.  OTM's report was about the toll of litigation on journalism, not the merits of the CIR stories.  Looking, then, at the OTM story, I find that a side was missing, but it wasn't Planet Aid's.  Missing is reasoned resistance to the anti-SLAPP craze.  Here, then, are my reflections on five media lamentations in the OTM story about anti-SLAPP.

Lamentation Over Forum Shopping

(1) Baranetsky lamented that Planet Aid was permitted to sue in Maryland, where the law was advantageous to a plaintiff, and CIR was forced to incur major costs to move the case to California, where anti-SLAPP law is more protective.  Federal anti-SLAPP would fix this problem.

Forum shopping is a problem, but not specially a media defense problem.  Barring defamation victims from redress equally across the states isn't better than barring them one state at a time; i.e., 50 wrongs don't make a right.  Rather, everything that's wrong with anti-SLAPP would be multiplied by a federal statute.  Plaintiff's choice of forum does aggravate costs, and that allows forum shopping to be used improperly as a SLAPP tool.  The answer is to change how we manage forum selection in federal civil procedure to stop the externalization of costs to defendants and to compel professionalism in the plaintiffs' bar—not to put a thumb on the scale of merits in lawsuits, even SLAPPs.

Moreover, in overriding state court discretion to hear defamation actions on the merits, a federal anti-SLAPP statute would double down on the entrenched Sullivan/Gertz paralysis of the tort system that's precluding the development of innovative alternatives.  Our problem in defamation law is not lack of uniformity in the states, but precisely the opposite, lack of diversity that would generate new approaches.

Lamentation Over the Burdens of Discovery

(2) Baranetsky lamented that California federal courts have allowed limited discovery before dismissing cases under California anti-SLAPP law, thereby upping the costs of money and time for media defendants and mitigating the efficacy of anti-SLAPP. 

Notwithstanding the present debate in the Courts of Appeal over whether state anti-SLAPP laws can displace federal court process, anti-SLAPP puts defamation plaintiffs in a no-win scenario, especially when the plaintiff is a public figure.  Under Sullivan/Gertz, a public-figure plaintiff can prevail only by proving subjective knowledge or intent on the part of the defendant to publish falsity.  Subjective culpability lies only in the mind of the defendant.  Without precogs, we prove subjective culpability with circumstantial evidence.  When the defendant is a mass media organization, that evidence is in the possession of the defendant.  Even in a negligence case with a private-figure plaintiff, it is impossible to probe the culpability of the defendant when the plaintiff has no knowledge of the defendant's internal process, even the identity of a staff editorial writer, for example.

Yet along comes anti-SLAPP to demand (in the usual formulation) that a plaintiff prove likelihood of success on the merits with evidence that the plaintiff could not possibly possess.  Win-win for the media defense, lose-lose for access to justice.  Baranetsky bemoaned the costs, tangible and intangible, of discovery, especially on a nonprofit media outlet.  With that complaint, I am sympathetic.  Again, though, the answer is to change the process to control transaction costs.  The long reach of American discovery is globally infamous and socially problematic in ways well beyond the woes of media defendants.

Baranetsky raised the further point that the permitted discovery was one-sided, so CIR was not able to use discovery to bolster what might be a winning affirmative defense, such as truth.  I take this point, too.  I have some concern about the potential for a media organization—imagine not CIR, but a more partisan and unscrupulous outfit—to misuse discovery to further ill intentions.  But courts can and should control the scope of discovery with appropriate protective orders.   

Lamentation Over Interment by Paper

(3) Baranetsky lamented that the Planet Aid "complaint was about 66 pages, almost 70 pages long.... [B]ecause our reporters did such extensive reporting, published on the radio, published online, there were a lot of remarks to pull in from a really substantive investigation. The complaint here was padded with all of those bells and whistles."  That again upped media defense costs and slowed down the anti-SLAPP process.  

I don't doubt that the complaint was longer than it needed to be.  Plaintiffs anticipating high-profile litigation—by the way, including agenda-seeking litigators from both left and right, as well as state attorneys general—routinely plead "to the media" and to "the court of public opinion," rather than to the court of law.  Excessive pleading runs up defense costs, as well as court time, which is not fair to litigants or taxpayers.  Again, the answer lies in bar and bench control of process and professionalism, not in summary dismissal on the merits.

More importantly, to some extent, a defamation plaintiff's claim in a case over a series of reports must be lengthy, for a very reason Baranetsky said, and not because the plaintiff wants it that way.  It's not "padding," "bells," or "whistles."  Defamation plaintiffs are compelled by rules of pleading to commit a perverse self-injury by republishing the defamation of which they complain.  Thereafter, mass media entities are permitted to restate the defamation as a fair report of a public record, almost with impunity.  As a result, often, the defamation is amplified, and the plaintiff's suffering is vastly compounded.  Even if the plaintiff wins the case, compensation for this added injury is disallowed, and no media entity can ever be compelled to correct or update the record by reporting that the plaintiff later prevailed upon proof of falsity.

In my own plaintiff's case, precisely this happened.  Among countless national outlets, The New York Times reported the defamatory allegations I republished in the complaint, but never covered the case again, despite my entreaties to the reporter and ombudsperson.  To this day, I overhear innuendo based on the Times story with no reference to my later exoneration, which was reported in only one excellent-but-niche publication.  In my experience with would-be defamation plaintiffs, I have seen that this risk alone prevents a victim from seeking redress as often as not.  Once again, we could answer this problem by reforming pleading in defamation, rethinking what "fair report" means in the digital age, and experimenting with dispute resolution, if only Sullivan/Gertz left the defense bar with the slightest incentive to participate.

Lamentation Over Litigiousness

(4) In his introduction to the case, Garfield said, "Without offering evidence to rebut the allegations, the charity promptly sued the news organization for libel."

OTM itself walked back this characterization of Planet Aid's lawsuit as a blindside attack.  An OTM editor's note to the story posted online added that, according to a PR firm representing Planet Aid, the organization "reached out to [CIR] prior to filing its lawsuit asking for a retraction and correction."

I don't know whether Planet Aid's version is right, or OTM's, or maybe the demand letter got lost in the mail.  As I've indicated, I'm not rushing to sign up Planet Aid as my poster child for the Anti-SLAPP Resistance.  But OTM's post hoc characterization of events is, to my experience, typical of media-defense-bar spin.  In reality, rare in the extreme is the case that there is not at least a demand letter and response.

In my own plaintiff's case, I filed suit as late as possible, on the eve of the expiration of the statute of limitations.  I sought to diffuse the disagreement through every possible avenue, both vis-à-vis my defendants and through negotiation with a third party.  Yet when my case turned up years later in a book by an academic colleague, Amy Gajda, she used my case to support the book's thesis that alternative dispute resolution mechanisms on university campuses would help to avert lawsuits by litigious academic plaintiffs like me.  I don't dispute (or support) that thesis in the abstract, but my case did not support it.  Gajda suggested that I rushed to sue, without probing alternatives, which was utterly false.  In fact, it was the refusal of my potential defendants to come to the table—the very problem of Sullivan/Gertz inhibition of dispute resolution—that forced me into a lawsuit as an undesired last resort.

Gajda, by the way, is herself an award-winning journalist and scholar of media law.  Yet she readily contorted the procedural facts of my case to fit her expectations without ever asking me what happened.  We know each other, and I'm not hard to find.  If a top-flight journalist can be so sloppy with the facts in a case about a professional colleague, and I have to lump it, what chance does a lay soul in private life have to correct the record on something that really matters, as against a professional media outlet with a partisan agenda and lawyers on retainer?

How simple it is to make assumptions and feed the tort reformer's myth that greedy plaintiffs eagerly sue at the drop of a hat.  Yet no one properly counseled by an experienced attorney chooses a lawsuit as a first course of redress.  To the contrary, defamation victims, especially in matters as difficult to win as media torts, typically cannot find an attorney willing to take the case at the opportunity cost of sure-thing personal-injury money, and certainly not on contingency.  Plaintiffs wind up not suing for that or many other reasons unrelated to their real losses.  Other reasons include the risk, under anti-SLAPP fee-shifting, of having to pay attorneys' fees to a corporate media defendant's high-priced lawyers—not because the plaintiff wasn't defamed, but because the plaintiff could not meet the enhanced burdens to overcome a First Amendment defense.  Other reasons also include the stigma associated with being a plaintiff in America, a stigma perpetrated by corporate advocates of tort reform and conveniently perpetuated by would-rather-not-be defendants in the media business.

Lamentation Over the Price of Free Speech

(5) Baranetsky opined, "We have to be wary of defamation law being used by public figures and politicians and wielded in ways that can be used retributively. At the same time, make sure that lies aren't being spread.  The hope is that anti-SLAPP laws are really, they're the precise scalpel that's supposed to sharply and acutely figure out which falls on which side of the line."

That's a profound misapprehension of anti-SLAPP laws.  There is nothing about anti-SLAPP that is precise or acute.  Very much to the contrary, anti-SLAPP is designed to be a blunt instrument that stomps out litigation before it can get started, looking scarcely at the quantum of evidence on the merits and rounding down in favor of the defense.  Anti-SLAPP operates upon the very theory of Sullivan/Gertz, which is that the price of free speech is the prophylactic annulment of meritorious claims and the tolerance of misinformation.  The theory of anti-SLAPP is that we don't want to know the truth, and would rather abide falsity, when the cost of disentangling truth and falsity is inconveniently excessive.

Baranetsky's take on anti-SLAPP is ironic in the extreme.  The Sullivan/Gertz constitutionalization of state tort law is based on the age-old argumentative hypothesis of moral philosophy that "the truth will out" in the marketplace of ideas, so the courts ought not intervene to abate falsity.  That proposition has been vigorously refuted by scholars as demonstrably erroneous.  And CIR's very motto, splashed on a home page banner, is: "The truth will not reveal itself."

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I've identified areas of tort law that need reform—abuse of forum selection, excessively broad discovery, permissiveness of fact pleading—and areas of defamation law in particular that need reform, procedural and substantive—pleading requirements, fair report protection, culpability and proof standards, plaintiff access to representation, and availability of alternative dispute resolution—but are paralyzed by federal capture of common law and media defense intransigence.

Let me not understate my appreciation for OTM, WNYC, CIR, and all kinds of nonprofit journalistic enterprises.  I am grateful that CIR did the reporting that it did on Planet Aid, and for the reporting that OTM does all the time on threats to public interest journalism.  I am fearful of a world in which that reporting does not happen.  

Nevertheless, I object to a legal standard that presumes news media have the corner market on truth.  If our system of civil dispute resolution is broken, and I think it is, then we need to fix it.  Anti-SLAPP is at best a patch to paper over unsightly symptoms of our dysfunction, and, too often, it does so at the expense of genuine victims.  Our willingness to ignore injury says more about the sorry state of our democratic character than does our blind fealty to an unbridled press.

At the annual meeting earlier this year of the Communications Law Forum of the American Bar Association, a famously media defense-identifying conference, I heard whispered for the first time some cautious and reluctant concern that media defendants holding all the cards in tort litigation might—wait, is this a secure channel?—might not necessarily be the best strategy to ensure the freedom of speech and to protect the flow of truthful information in America, especially in the digital age.

Now where have I heard that before?