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?

Despite lack of statute, anti-SLAPP blocks mining company suit as abuse of process in South Africa

Coffee Bay is a tourist destination on the Eastern Cape.
(photo by Jon Rawlinson CC BY 2.0)

Two weeks ago, a South African court recognized an anti-SLAPP defense in the absence of a statute, as an abuse of process, in a defamation case brought by mining companies against environmentalists.

In the case, mining companies Mineral Commodities Ltd and a subsidiary, and directors, sued environmentalist lawyers and activists for defamation, seeking R14.25m, close to US$1m, or in the alternative, an apology, for defendants' accusations of ecological and economic damage caused by excavation and mining projects at Tormin Mine on the Western Cape and at Xolobeni on the Eastern Cape.

Defense lawyers argued that the suit was a strategic lawsuit against public participation, or "SLAPP" suit, calculated to silence the defendants for their criticism of the plaintiffs, rather than a bona fide claim of defamation.  South Africa has no anti-SLAPP statute.  But the High Court for the Western Cape held, with reference to the freedom of expression in the South African constitution, that the judicial power to abate vexatious litigation and abuse of civil process may be deployed to dismiss a SLAPP suit.

"[T]he interests of justice should not be compromised due to a lacuna or the lack of legislative framework," the court wrote.

The court examined the history of the SLAPP as a legal strategy and traced its origin to anti-environmentalism in Colorado and recognition in the 1988 scholarship of professors Penelope Canan and George Pring.  The court discussed anti-SLAPP legislation in the United States, Canada, and Australia, including the statutes of Georgia, Washington, and New York, and the recent enhancement of the latter.  Anti-SLAPP has been recognized as meritorious in principle by the Supreme Court of Canada, the High Court observed, though anti-SLAPP is enacted by statute in only three provinces.

The court looked also to Europe, and specifically the "McLibel" lawsuit of the 1990s (1997 documentary) and 20-aughts, in which McDonald's Corp. sued environmentalists in England.  Anti-SLAPP has been debated in the European Union, the court explained, but legislation has not been enacted.  Nevertheless, the court opined, the ultimate disposition of the McLibel case in the European Court of Human Rights (ECtHR) was consistent with the principle of anti-SLAPP.  In the McLibel case, the English courts ruled in favor of McDonald's, finding some assertions in the environmentalist leaflets to be libelous.  Subsequently, the ECtHR, in 2005, ruled that British law (well before the 2013 UK Defamation Act) had not afforded the defendants sufficient protection for the freedom of speech.  

In the McLibel case, the ECtHR stressed the chilling effect on speech of the extraordinary cost burden on individual activist-defendants in defending a civil suit against a large corporation, especially in the shadow of attorney fee-shifting to the winner, which is the norm in civil litigation in the UK and most of the world.  The High Court pointed to a South African precedent that is similar on that point, Biowatch Trust v. Registrar, Genetic Resources, in the Constitutional Court of South Africa in 2009.

I have written before about Biowatch, which was an access-to-information (ATI, freedom of information, or FOI) case.  In that case, environmentalist NGO Biowatch, under South African environmental protection and access-to-information law, sought information about Monsanto (now Bayer) genetically modified organisms introduced into national agriculture.  The result in the case was mixed, and the trial court awarded the defendant government and intervenor Monsanto their substantial legal fees against Biowatch.  Subsequently, the Constitutional Court held that Biowatch should be exempt from a fee award, because such an award against a public-interest litigant would chill the exercise of constitutional rights, which, in South Africa, include the right to a healthy environment.

The exact contours of a common law anti-SLAPP defense will have to be worked out by South African courts if the High Court precedent sticks.  The instant case was not difficult for the court to map to the SLAPP paradigm:  The tort alleged was defamation.  The conduct of the defendants was expression specifically in furtherance of environmental protection.  The mismatch between plaintiffs and defendants in wealth and power was "glaringly obvious."

The plaintiffs' demand also drew the court's skepticism.  Referencing the findings of Canan and Pring in the 1980s, the court observed: "A common feature of SLAPP suits is ... a demand for an apology as an alternative to the exorbitant monetary claim."

I reiterate my dislike of anti-SLAPP laws.  I also acknowledge that anti-SLAPP measures sometimes are warranted.  South Africa in particular, in recent decades, has seen a rise in the weaponization of defamation and related torts, especially by powerful corporations and politicians, including former President Jacob Zuma.  Americans might note a parallel in former President Donald Trump, who used defamation for leverage in business and called for plaintiff-friendly libel reform.  At the same time, defamation defendant President Trump won a nearly $300,000 award against Stormy Daniels thanks to fee-shifting under the California anti-SLAPP law.

The problem with anti-SLAPP legislation in the United States is that it does not weigh factors that the Western Cape High Court took into account, such as the relative power of the plaintiff and the defendant.  Yes, anti-SLAPP laws in the United States and Canada protect environmentalists against developers.  American anti-SLAPP laws also protect fantastically wealthy and sloppy media conglomerates against individuals whose lives are ruined by mistakes and falsities on the internet, which never forgets.  The threat of fee shifting, characteristic of anti-SLAPP legislation and usually foreign to U.S. civil litigation, is especially terrifying in light of enormous U.S. transaction costs, including the high-dollar rents of American corporate defense firms.  Anti-SLAPP laws are the darling of the professional media defense bar, and, lest the journalist's aphorism be conveniently forgotten, we might ought follow the money.

For that reason, the High Court's "abuse of process" approach is intriguing.  The court's articulation of abuse of process, as applied to Mineral Commodities, while not the sole basis of the court's holding, accords with the American common law test.  The American tort may be expressed as "(1) use of judicial process (civil or criminal), (2) ulterior or improper motive, (3) process used not for its designed or intended purposes, and (4) resulting harm."

Typically, in the American context, abuse of process is exceedingly difficult to prove, because courts are generous in accepting the plaintiff's plea of honest intentions to negate the second element.  Mineral Commodities pleaded its genuineness, but the High Court was willing to doubt, sensibly, looking at the parties and the uncontroverted facts.  Maybe a bit less judicial generosity would allow abuse of process to police SLAPP better than the corporate-friendly statutes that 30 U.S. states have embraced, and for which media corporations are now lobbying Congress.

The opinion in the High Court was delivered by Deputy Judge President of the Western Cape High Court Patricia Goliath.  Her surname was not lost on commentators (below), who played on the "David vs. Goliath" ideal of anti-SLAPP.  Curiously, DJP Goliath, who served on the Constitutional Court in 2018, is embroiled presently in turmoil within the High Court.  In 2019, she alleged she had been pressured by President Zuma for favorable assignments of cases in which he was involved.  Possibly in retaliation for not playing ball, she has been, she has alleged further, subject to gross misconduct and verbal abuse, if not worse, by High Court President John Hlophe.  JP Hlophe denies the allegations.

I am indebted, for spying the case, to attorneys for the defendants, Odette Geldenhuys and Dario Milo, of Webber Wentzel, who wrote about the case for the Sunday Times (South Africa) (subscription required) and for the INFORRM blog.

The case is Mineral Sands Resources Ltd v. Reddell, No. 7595/2017, [2021] ZAWCHC 22 (High Ct. Wn. Cape Feb. 9, 2021) (South Africa).

Uber suffers high court loss, but binding arbitration, blanket disclaimers still devastate consumer rights

Image by Mike Lang CC BY-NC-SA 3.0

Signs of life were spotted on the dead planet of consumer rights in click-wrap agreements. But don't get too excited; the life is microbial and already has been exterminated by the corporatocracy.

A blind man who was refused Uber service because he had a guide dog was successful in the Massachusetts Supreme Judicial Court last week in voiding loss of his disability discrimination claim because Uber failed to give him sufficient notice of its terms and conditions compelling defense-friendly arbitration.

Uber can easily correct its notice problem—and likely has already; this plaintiff signed up in 2014—so the rest of us are out of luck if we have an Uber problem.  But the plaintiff's rare win exposes the abject failure of federal and state law to protect consumer rights against gross overreach by online service providers.  And the case arises amid a deluge of reported ride-share sexual assaults, from which service providers have been widely successful in washing their hands of legal responsibility.

In the instant case, the Massachusetts high court followed 2018 precedent in the First Circuit, also applying Massachusetts law to the same Uber interface, to conclude that Uber's means of obtaining the plaintiff's consent to the app's terms and conditions (T&C) in 2014 fell short of the notice required to bind a consumer to a contract.

Uber required ride-share passengers to assent to the T&C by clicking "DONE" after entering payment information.  The court explained that the focus of the app's virtual page was on payment, and the language about the T&C, including the link to the terms themselves, was marginalized in page location and diminished in type size.  (The law gives the plaintiff no special treatment because of his blindness, and the case suggests no contrary argument.)  Uber knew how to do better, the Court reasoned, because drivers signing up with the app plainly must click "I AGREE" to their T&C: an easy fix for app makers.

The Court adopted for the Commonwealth what has become widely accepted as the two-part test for online T&C contract enforcement, "[1] reasonable notice of the terms[,] and [2] a reasonable manifestation of assent to those terms."  It is not necessary that a consumer actually read, or even see, the terms.  The Court acknowledged research (Ayres & Schwartz (2014); Conroy & Shope (2019)) showing that a vanishing number of consumers ever read, much less understand, T&C.  But the law requires only that the consumer be given the opportunity.

This approach to "click-wrap" agreements, kin to "browse-wrap" agreements, dates back to "shrink-wrap" agreements, by which a consumer could be bound to hard-copy license terms upon opening a product box, and earlier to the simple doctrine in analog contract law that a person's mark can bind the person to a contract that she or he has not read.

The rule works well to smooth commerce.  But the problem for consumer rights is that T&C have become unspeakably onerous.  British retailer GameStation made headlines in 2010 when it was reported that 7,500 online shoppers unwittingly(?) sold their "immortal soul[s]" as a term of purchase; that demonstration is not unique.  Legendary cartoonist Robert Sakoryak turned the infamously voluminous iTunes "terms and conditions" into a graphic novel (2017) years after South Park mocked Apple mercilessly (2011).  On a more serious note, the problem has generated ample scholarship, including at least two books (Kim (2013); Radin (2014)), and has been a flashpoint of controversy in European privacy law, which, unlike American law, requires a bit more than a token click-box to signify a person's consent to process personal data, especially when the person is a child.

The Massachusetts Court recognized the scope of Uber's T&C as a factor to be weighed in the sufficiency of notice.  "Indeed," the Court wrote, "certain of the terms and conditions may literally require an individual user to sign his or her life away, as Uber may not be liable if something happened to the user during one of the rides."  Uber's terms "indemnify Uber from all injuries that riders experience in the vehicle, subject riders' data to use by Uber for purposes besides transportation pick-up, establish conduct standards for riders and other users, and require arbitration."

Though arguably subject to a rare override in the interest of public policy, such terms still can prove prohibitive of legal action when a passenger becomes a crime victim.  And that's been happening a lot.  Uber itself reported in 2019 that over the preceding two years, the company had received about 3,000 claims of sexual assault each year (NPR).  The problem is so prevalent that ride-share sex assault has become a plaintiff's-attorney tagline.  Yet recovery is easier promised than won.  Even if a consumer somehow prevails in arbitration, a process hostile to consumer rights, T&C such as Uber's also limit liability awards.

Litigants have struggled to circumvent ride-share app providers' disavowal of responsibility.  In November, the federal district court in Massachusetts rejected Uber liability as an employer, because drivers are set up as independent contractors, a convenience that has summoned some heat on app service providers in the few states where legislators worry about employment rights in the gig economy.  Lyft won a case similarly in Illinois.  Meanwhile a Jane Doe sex-assault claim filed in New York in 2020 takes aim at Uber upon a direct-negligence theory for failure to train or supervise drivers (N.Y. Post).

In 2018, Uber and Lyft relaxed enforcement of compelled arbitration clauses in sex-assault claims (NPR)—if they hadn't, they might eventually have suffered a humiliating blow to their T&C, as unconscionability doctrine is not completely extinct in contract law—so hard-to-prove direct-negligence cases such as N.Y. Doe's are hobbling along elsewhere too.  Oh, Uber also relaxed its gag on sex-assault victims who settle, allowing them to speak publicly about their experiences (NPR).  How generous.

All of this is tragic and avoidable, if routine.  But in the Massachusetts case, I saw a troubling legal maneuver that goes beyond the pale: Uber counter-sued its passenger.

In a footnote, the Massachusetts Court wrote, "In arbitration, Uber brought a counterclaim for breach of contract against the plaintiffs, alleging that they committed a breach of the terms and conditions by commencing a lawsuit and pursuing litigation in court against Uber. Through this counterclaim, Uber sought to recover the 'substantial unnecessary costs and fees' it incurred litigating the plaintiffs' lawsuit."

So it's not enough that our warped American enslavement to corporatocracy allows Uber and its ilk to impose crushing, if industry-norm, T&C on customers, depriving them of rights from Seventh Amendment juries to Fourteenth Amendment life.  Uber moreover reads its own indemnity clause with the breathtaking audacity to assert that it is entitled to recover attorney's fees from a consumer who dares to make a claim—a claim of disability discrimination, no less. This reactionary strategy to chill litigation by weaponizing transaction costs exemplifies my objection to fee-shifting in anti-SLAPP laws.  Uber here shamelessly pushed the strategy to the next level.

Nader (2008)
Photo by Brett Weinstein CC BY-SA 2.5

Compelled consumer arbitration has stuck in the craw of consumer and Seventh Amendment advocates, such as Ralph Nader, for decades.  Nader is widely quoted: "Arbitration is private. It doesn't have the tools to dig into the corporate files. It's usually controlled by arbitrators who want repeat business from corporations not from the
injured person."  As the corporatocracy is wont to do, it pushes for more and more, ultimately beyond reason.  Industry pushing got a boost when the Trump Administration set about dismantling the Consumer Finance Protection Bureau.  Make no mistake that compelled arbitration is somehow about a free market; a free market depends on a level playing field, a fair opportunity to exercise bargaining power, and transparency of transactional information.  The unilateral imposition of an absolute liability disclaimer upon penalty of fee-shifting in a secret tribunal is none of that.

I'm tempted to say something like "enough is enough," but I would have said that 20 years ago, to no avail.  So I can only shake my head in amazement as we double down on the abandonment of civil justice in favor of secret hearings to rubber-stamp rampant venality.

Full disclosure: I use Uber, and I like it.  Taxis got carried away with their market monopolization, and a correction was needed.  Now that's feeling like a Catch-22.

The case is Kauders v. Uber Technologies, Inc., No. SJC-12883 (Jan. 4, 2021) (Justia).  Justice Scott Kafker wrote the opinion for a unanimous Court.  In amicus briefs, the ever vigilant U.S. Chamber of Commerce and the "free market"-advocating New England Legal Foundation squared off against plaintiffs' lawyers and "high impact lawsuit"-driving Public Justice.

Law students ponder litigant Trump

(Cross-posted at Trump Litigation Seminar and The Savory Tort.) In the fall semester, I had the privilege of exploring Trump litigation in depth with a team of law students in my Trump Litigation Seminar.  These students are to be commended for plowing through more than 27,000 pages of court records, which are compiled and publicly available at our course blogsite, a project of The Savory Tort.  In addition to our case reviews and discussions, students completed skills exercises in discovery, pleading, public relations, negotiation, and statutory interpretation, and rounded out the semester with research and writing.  From the final papers, with author permission, here are selected abstracts.

Screenshot of PAC ad, via WNYC

Jessi Dusenberry, Anti-SLAPP Law and Donald J. Trump for President, Inc. v. Northland Television, LLC.  President Donald Trump filed a lawsuit against a small news organization in Wisconsin for defamation.  The news organization, WJFW-TV, ran an advertisement that showed President Trump calling COVID-19 a “hoax,” as a graph tracking the rate of infections showed an upward track on the screen.  Many news stations ran the same ad, but the Trump campaign chose to sue only WJFW-TV, which is owned by a small company that has only two other local TV stations.  The political organization that produced the ad later joined the case as a defendant.  The lawsuit was initially filed in Circuit Court, but later was removed to federal court.  The lawsuit against WJFW-TV follows President Trump’s legal strategy of filing frivolous lawsuits to force the defendant to spend money in legal fees to get the case dismissed.

Unlike many other states, Wisconsin doesn’t have an anti-SLAPP law to prevent the use of the courts to intimidate people who are exercising their First Amendment rights.  This paper provides general background on strategic lawsuits against public participation (SLAPPs) and the need for anti-SLAPP legislation, as well as the jurisdictional differences in drafting anti-SLAPP legislation.  The paper goes into further detail on California’s anti-SLAPP legislation, beginning with the types of speech covered by the statute.  The paper also analyzes significant judicial interpretations of the anti-SLAPP legislation in California.  Finally, the paper explores the applicability of California’s anti-SLAPP protections to media defendants.

From Pixabay by Gerd Altmann

Richard Grace, The Truth, the Whole Truth, and Everything but the Truth: Tort Reform and Social Media.  The tort of defamation has been changed irreconcilably by the advent of social media, which have provided famous or notorious plaintiffs additional means to combat and remedy alleged damage to their reputations, regardless of the merits, leaving plaintiffs of more ordinary means no alternative but to rely on a system that is heavily defendant-favored and cost-prohibitive.  In the “Twitter Age,” a period of revolutionary growth in connectivity and ability to spread information globally via social media, the ultimate affirmative defense to defamation, truth, seems almost to have become subjective, with division and polarization increasing at an alarming rate.  Reasoned conclusions have been replaced by echo chambers.  Whether it is “alternative facts,” or the notion that being “morally right” is more important than being “precisely, factually, and semantically correct,” the rapid growth in ability to editorialize and disseminate "truth" has wider implications for the “search for the truth” of modern litigation.

This paper first aims to discuss several theories of reform to the tort of defamation.  The paper explores the actions of a serial defamation litigant, Donald Trump, specifically in the matters of Trump v. O’Brien and Miss Universe L.P. v. Monnin, the latter involving an entity owned by Trump, which were selected to demonstrate the ability of a defamation plaintiff to leverage the public sphere as an extra-judicial remedy.  These cases were chosen to represent pre- and post-Twitter outcomes.  O’Brien was decided prior to Twitter becoming a social media mainstay, whereas Miss Universe was more recent.  Finally, the paper considers the external issues this gap in tort remedy for reputational damage has caused, particularly with regard to § 230 of the Communications Decency Act, which has provided social media companies, service providers for purposes of the act, with statutory immunity from tort actions for defamation.  Ultimately, the jurisprudence of defamation law has enabled a two-tiered system of remedies: for those who must bear the cost and burden of litigation, and for those who can litigate the matter outside of the courtroom, in the court of public opinion.

Pa. electoral map from 2012 (CC BY-SA 3.0)

Alyssa McCartney, The President Who Cries Voter Fraud: A Recurring Theme of Baseless Allegations.  In 2019, Pennsylvania enacted its first update to the Election Code in nearly eighty years. On a bipartisan vote, the General Assembly passed a measure to allow “no reason” mail-in ballots. Act 77 allows any registered voter to request a ballot by mail, fill it out in the time framed outlined, and send it back to be processed. In the wake of a global pandemic that left Americans unable to leave their homes, this necessary update would cause quite the controversy in months to come. Explaining a new process comes with challenges, but tack on a President purposely fanning the flames of doubt, mail-in ballots have been tough to sell. The primary election used the updated process for the first time on June 2, 2020. Receiving nothing but praises and positive feedback, the measures enacted seemed to keep tensions at ease. That is, until the sitting President’s re-election campaign filed suit against Pennsylvania Secretary of State Kathy Boockvar and the Commonwealth’s sixty-seven counties. As President Donald J. Trump continued to allege baseless voter fraud accusations, the American people grew more restless in a year that’s already full of uncertainty. As a key swing state in presidential elections, Pennsylvania took center stage in Trump’s war on the election “rigged by Democrats.”

This article aims to address Trump’s relentless allegations of voter fraud—something that is not new for him. By analyzing Pennsylvania and offering an insight into Centre County election protocols, this article will squash the baseless accusations to show the election results are fair, free, and not riddled with fraud. Although President Trump refuses to concede in hopes of the United States Supreme Court intervening, he lacks any standing and cannot offer substantial evidence to support his claims. In short, these frivolous lawsuits are an attempt to undermine our democratic process by a man who has no shame spinning the narrative to suit his needs.

From Flickr by Gage Skidmore (CC BY-SA 2.0)

Natalie Newsom, Make America Great Again.  In 2015, Donald Trump announced that he was running for President of the United States in a controversial statement outside his towering building in New York City. What ensued in the months following was a campaign that shattered presidential norms with Trump having a scattered history of sexual misconduct allegations, zero experience in elected office, and a tendency to make offensive and derogatory comments. These comments caused Rafael Oliveras López de Victoria to file a lawsuit on September 24, 2015, to ban Donald Trump from becoming President. Oliveras López argued, albeit unsuccessfully, that there is a particular caliber of moral solvency expected of U.S. Presidents, and that the court should intervene in situations in which a presidential candidate fails to meet that criterion.

The most interest facet of the Oliveras López lawsuit is what it reveals about American politics and morality. As it stands now, making offensive comments aimed at protected classes in the United States will not stop you from becoming President, the most highly regarded public-servant position in our nation. That fact seems to run afoul of another phenomenon that exists in the United States today, in which people may be fired from their government jobs for social media posts featuring alcohol or expletives. This leaves the question of why a double-standard exists. This paper aims to address the problem of that gap between the law and morality and discusses what the case filed by Mr. Oliveras López teaches us about restoring faith in American decency.

E. Jean Carroll in 2006 by Julieannesmo (CC BY-SA 3.0)

Pedro Raposo, Trump, Sexual Assault, and Defamation.  Defamation has proven a useful tool to survivors who have been keeping their accusations to themselves for fear of coming forward, and have since managed the strength to come forward against their abusers. Notably, many individuals who have been abused in the past may have concealed their stories for too long, and the statute of limitations for sexual assault have run. With a defamation suit, survivors are able to reopen the issue of their sexual assaults by addressing the accused's statements.  President Donald Trump has not been able to escape this recent wave of sexual misconduct allegations ushered in by the #metoo movement. To date, there have been nineteen women who have accused Trump of sexual misconduct. The three cases focused on here were brought by former “Apprentice” contestant Summer Zervos, adult film star Stephanie Clifford, and author E. Jean Carroll.  Two of these cases have reached variable results, with the court ruling the allegation in the Zervos case to be actionable against Trump, while the defamation claim in Clifford’s case was defeated by Trump’s legal team. 

Snapshot of Trump deposition in CZ-National

Spencer K. Schneider, Paying for Privacy.  As public opinion of the courts diminishes, it is important to consider the role that public access to the courts, or lack thereof, plays in this public opinion. In the United States, courts have a long history of public access to both proceedings and documents, much of which is grounded in the First Amendment. However, this access is not absolute, and the wealthy and powerful often seek to keep court documents under seal and out of the public’s view. One of these wealthy and power individuals is Donald Trump, a frequent litigator to say the least. This paper analyzes court decisions in Trump Old Post Office LLC v. CZ-National and Low v. Trump University, respectively, to make public and seal the video depositions of Donald Trump taken during each case’s discovery, and the effect that allowing wealthy parties to seal court documents can have on the public perception of the courts.

José Andrés on Flickr by Adam Fagen (CC BY-NC-SA 2.0)

Ricardo J. Serrano Rodriguez, Trump Old Post Office LLC v. Topo Atrio LLC and the Court of Public Opinion.  This paper attempts an exploratory study of the plausibility of public opinion influence in the case of Topo Atrio through media outlets such as newspapers, television, radio, and social media platforms. The ways that public opinion is formed have changed throughout our history. Since the times of the public square, public opinion influences the way that individuals conduct themselves in society. This influence changes the dynamics of social interaction in a deep manner and polarizes the judgment of the public. The internet and social media have expanded the reach of the public sphere to a point of near immediate dissemination of information. Now, newspapers are not only physical, as the name suggest, but digital also, which multiplies the publisher’s reach. Donald Trump is a public figure who also has made a brand out of his name and relied on this brand in his quest for political approval. In the case of Topo Atrio, ... José Andrés and Donald Trump, through their corporations, entered into an agreement in which Andrés would run a restaurant in Trump’s Old Post Office Hotel. The controversial comments about immigration made by Donald Trump when he announced his candidacy created a bustle of publicity that followed him to the end of his presidential term. But could it really influence the court of law?

Pixabay by Christian Dorn

Matthew R. Stevens, The Art of the SLAPP.  This paper dives into two cases, Makaeff v. Trump University and Clifford v. Trump, and dissects the anti-SLAPP issues and motions made in the cases. More specifically, the paper views the anti-SLAPP issues in these cases through the broader scope of anti-SLAPP legislation’s underlying policy goals. While extremely important and inextricably connected to the legal results of each case, the application of substantive law is not the primary focus of this paper. There is a plethora of variables that distinguish the two cases, but the key point of divergence on which this paper focuses is Trump being a defamation plaintiff in one case, and a defamation defendant in the other. It is also important to narrow the scope of SLAPP suits themselves. SLAPP suits can apply to far more than just free speech, but this paper focuses the scope of SLAPP suits through the lens of defamation claims. The paper’s ultimate goal is to use these two cases as examples to see whether anti-SLAPP legislation is operating as intended within the context of the greater policy goals of the legislation.

O'Brien's book (Amazon)

Judson Watt, Press Protections in Civil Discovery: Trump v. O'Brien.  Donald Trump is a well-known public figure who is famous for his litigious nature. In 2006, he filed a defamation lawsuit against a well-known reporter and author in the New Jersey courts. This lawsuit survived a motion to dismiss and was allowed to move into the pre-trial discovery phase. Donald Trump was allowed to pepper the defendant with requests for document production and interrogatories concerning his confidential sources. This paper addresses the decision of the trial court to allow pretrial discovery to proceed even though Trump failed to meet his burden to establish actual malice by the defendant, as required by the Supreme Court since New York Times v. Sullivan. This paper shows that the trial court disregarded statutes and case law by allowing the case to continue into the discovery phase.

This paper gives a basic overview of the hurdles faced by public figures in filing a defamation case. It examines and explains journalistic privileges in reporting on public figures and how these privileges were applied by the trial court. It examines various statutes and case law binding in New Jersey and New York at the time of the suit. This paper shows that this case was wrongly decided from the beginning and that it never should have moved into pretrial discovery. The trial court failed properly to apply the precedents of New Jersey or New York, and, as a result of this failing, a reporter was subjected to an endless stream of interrogatories, discovery, and legal harassment by a wealthy public figure. Indeed, this story is the embodiment of the motivations for press shield laws, and the importance of these laws in a democratic society.

Canadian privacy advocate deploys anti-SLAPP law in suit by electronic exam proctoring company

John Oliver's Big Coal SLAPP nemesis, Bob Murray, retires

Pixabay by Aksa2011

An IT specialist at a Canadian university is defending a lawsuit against a U.S. tech company over its allegations of copyright infringement and his allegations of infringement of student privacy.

Proctorio is an Arizona-based company offering online testing to academic institutions.  It's similar to ExamSoft, which is used by my law school, the Massachusetts Bar, and other academic and licensing organizations.

Needless to say, businesses in the mold of Proctorio and ExamSoft have taken off since the pandemic.  But these businesses are not without their problems, and their widespread use has brought unwanted scrutiny to their terms of service.

For example, the Electronic Frontier Foundation raised a red flag over ExamSoft in anticipation of its adoption to administer the California bar exam.  Examsoft's terms of service afford the company overbroad reach into the computers of users and, worse, collection of biometric data from studying their faces on screen.  My students have raised legitimate concerns about ExamSoft, and I will not be administering a "closed-book" final exam because I share those concerns.

UBC (GoToVan CC BY 2.0)

Related privacy worries motivated University of British Columbia learning technology specialist Ian Linkletter, MLIS, to tweet out the URLs of unlisted Proctorio instructional videos located at YouTube, meaning to make his case that the company is excessively intrusive of student privacy.  In response, the company sued Linkletter in British Columbia for copyright infringement and breach of confidence.

Now Linkletter has filed for dismissal under British Columbia's anti-SLAPP law.  Linkletter told the Vancouver Sun that fighting the lawsuit for just "more than a month has cost him and his wife tens out thousands of dollars."  Read more in Linkletter's public statement of October 16.

B.C.'s anti-SLAPP law was enacted unanimously by lawmakers in March 2019.  Oddly enough, B.C. lawmakers passed one of Canada's first anti-SLAPP laws in 2001, but quickly repealed it over doubts about its efficacy.  I wrote recently about the dark side of anti-SLAPP laws.  Never have I denied that they are sometimes deployed consistently with their laudable aims; rather, my concerns derive from their ready abuse when deployed against meritorious defamation and privacy causes.   

The case is Proctorio, Inc. v. Linkletter, Vancouver Reg. No. S-208730 (filed B.C. Sup. Ct. Sept. 20, 2020) (civil claim).

Bye, bye, Bob

[UPDATE, Oct. 27, 2020. To be clear, I wrote that sub-headline before this happened: "Coal giant Robert Murray passes away just days after announcing retirement" (Stephanie Grindley, WBOY, Oct. 25, 2020).]

In other, if distantly related, anti-SLAPP news, Bob Murray is resigning and retiring as board chairman of American Consolidated Natural Resource Holdings Inc., successor of Big Coal's Murray Energy.  It was a tangle with Murray that turned HBO comedian John Oliver into an anti-SLAPP champion.  And, I admit again, HBO's use of anti-SLAPP law was textbook and laudable after Murray brought a groundless suit against the network.

While I disagree with Oliver over anti-SLAPP, he's one of my favorite comedians and social activists, and definitely was the mic-drop-best live act I've ever seen.  Here are his key Murray Energy treatments from Last Week Tonight.

The first, June 18, 2017, drew Murray's lawsuit.

The second, November 10, 2019, followed up with a paean to anti-SLAPP, wrapping up with a musical tribute to Murray.

Trump supporter vs. MSNBC's Joy Reid heats up for round 2, following reversal on free speech issues

It looks like the two-year-old defamation case by Trump supporter Roslyn La Liberte against MSNBC personality Joy Reid is about to heat up.

Racial Slurs and Other Not-So-Pleasantries

Eponymous host of MSNBC's ReidOut and "one of the few Black women to anchor a major American evening news program," Joy Reid has stirred up her share of schismatic controversy (e.g., "series of homophobic blog posts" (Glenn Greenwald), "casual Islamophobia" (Erik Wemple (pay wall))).  In June and July, on Twitter and Instagram, Reid called out MAGA-hat-bearing Roslyn La Liberte at a Simi Valley, California, City Council meeting (La Liberte at 4:17:45 to 4:19:57) for, as alleged in La Liberte's complaint, "yelling racial slurs at a minor," including that he would "'be the first deported ... dirty Mexican!,'" and "making ... racist statements and ... being racist."

A well circulated image of La Liberte and the 14-year-old boy at the council meeting, showing La Liberte mocking being choked but not actually talking to the boy, lent credence to Reid's characterization and its viral duplication.  Trolling responses came fast and furious in the Twittersphere and via email to La Liberte, the latter along the lines, "'You are a dirty white woman b***h,'" and "'I’m glad everyone in the entire world knows what a racist piece of s**t you are f**k you a*****e'" (asterisks in complaint).

However, La Liberte denied yelling racial slurs, and her story is backed up by the youth himself.  He described their exchange as "civil."  At least once during the meeting, a racial slur was directed at the boy, his mother said, but it wasn't uttered by La Liberte.  Cited in the complaint, Fox 11 L.A. untangled the story (June 29, 2018).

 

'Racist,' as a Matter of Fact

La Liberte sued Reid in the Eastern District of New York on a single count of defamation.  Alleging defamation per se, La Liberte in the complaint asserted, "Accusations of racist conduct are libelous on their face without resort to additional facts, and, as proven by this case, subject the accused to ridicule, hate, and embarrassment."

That point alone, on the merits, is interesting.  When I made a similar claim many years ago, colleagues and observers told me that an accusation of racism is opinion only, devoid of fact and incapable of defamatory meaning, even if one were asked to resign one's job as a result of the accusation.  Other colleagues, whose counsel I favor, disagreed and asserted that accusing an academic of racism is akin to accusing a youth coach of a child sex offense, in that the claim will persist indefinitely if one does not powerfully contest it.  Distinction between an individual's "racism," and "institutional" or "systemic" racism might complicate the legal analysis, but popular culture has pondered that distinction only recently.

Anti-SLAPP as the Sword of Goliath

A second compelling issue in the La Liberte case is the operation of anti-SLAPP law.  Anti-SLAPP laws, which vary in their particulars across the states, typically allow a defendant to attain fast dismissal of a lawsuit that is a "strategic lawsuit against public participation," that is, a lawsuit through which the plaintiff means to use tort law to suppress the defendant's exercise of civil rights, such as the freedoms of speech, assembly, and petition.  

That sounds good, but problems with anti-SLAPP law are legion.  One big problem is that American defamation law already tilts wildly in favor of defendants, a First Amendment prophylaxis gone corybantic, such that plaintiffs cannot usually get anywhere near the requisite burden of proof without the benefit of discovery.  Anti-SLAPP procedure allows the defendant to terminate the case before discovery can even happen.  

Joy Reid (Luke Harold CC0 1.0)

Designed in principle to protect, for paradigmatic example, a grassroots environmental campaign against the might of an unscrupulous real estate developer, anti-SLAPP in reality is more often deployed by the Goliaths of the latter ilk against Davidic pursuers.  Anti-SLAPP (ab)users include President Trump, Bill Cosby, and Big Media.  No wonder anti-SLAPP is the darling of the media defense bar.  The sad thing is that it's convinced the nonprofit media advocacy crowd to play along.

The proliferation of anti-SLAPP laws at the state level has generated a circuit split over what to do with them when a defamation case lands in federal court on diversity jurisdiction.  The analysis boils down to whether anti-SLAPP law is procedural, in which case it may not override federal rules, or substantive, in which case the federal court must apply the law of the state that governs the case.  The last couple of years have seen the emergence of a circuit split on the question, though the most recent precedents (2d, 5th, 11th, D.C. Circuits, contra 1st, 9th Circuits) point to the procedural conclusion, with which I agree.  

As a result, defamation cases that would have been smothered at birth in state court are given a chance to gasp for air in federal court.  Meanwhile, media advocates, including John Oliver—with whom I am loath to disagree, but he just doesn't get it—have been pushing hard for federal anti-SLAPP legislation.  A bill is pending in Congress, and with left-wing media advocates and right-wing mega-corporations on the same side, David's death blow might be but weeks away.

La Liberte arose amid this anti-SLAPP circuit split and was, in fact, the occasion on which the Second Circuit joined the recent majority trend.  The court reasoned that the California anti-SLAPP procedure, the defamation having occurred in California, is incompatible with Federal Rules of Civil Procedure 12 and 56, governing motions to dismiss and for summary judgment.

Limited-Purpose Public Figures and the Involuntarily Infamous

La Liberte at the
City Council meeting

Also while the case rested with the Second Circuit, the court reversed the trial court on one more issue, the erroneous classification of La Liberte as a limited-purpose public figure.  That classification would compel La Liberte to prove the often fatal-in-fact fault standard "actual malice," that Reid knew her statements were false or was reckless with regard to their truth or falsity.  

La Liberte had not pleaded actual malice.  And, according to the court, her activism in speaking at city council meetings did not convert her from a private figure to a public figure.  La Liberte was never singled out in news coverage, the court observed, until after the alleged defamation catapulted her to public attention.  A defendant who is responsible for making a plaintiff infamous cannot thereafter escape liability by characterizing the plaintiff as a public figure.  

Incidentally, it's typically ironic that the media defendant here, Reid, purported to defend her free speech with the anti-SLAPP law while seeking to use the First Amendment-protected petitioning of the city council of the plaintiff, La Liberte, to defeat her effort to protect her reputation.

Enter 'the Lawyer for the Damned'

After remand to the Eastern District of New York, La Liberte terminated her representation by Wade, Grunberg & Wilson.  WG&W is a self-described "boutique firm" in Atlanta that boasts of a plaintiff's defamation practice, not a common thing, but maybe a growth area in our polarized post-truth society.  "The law of defamation is nuanced, peppered with landmines under the First Amendment, Anti-SLAPP Statutes, absolute immunities, and qualified privileges," WG&W writes on its website. "We know where those landmines are and, more importantly, how to navigate successfully around them."  WG&W notified the court of its withdrawal on September 28, 2020.

Wood, 2011 (Gage
Skidmore CC BY-SA 3.0)

The reason I suspect the case might now heat up, or at least jump on the express train to settlement town, is that on October 5, 2020, L. Lin Wood entered his appearance for the plaintiff.  Wood already had signed on some of the court papers, but he seems now to be stepping front and center.  Wood's breakthrough claim to fame was representing Richard Jewell, the man wrongly accused of the 1996 Centennial Olympic Park bombing against The Atlanta Journal-Constitution (there's a 2019 movie directed by Clint Eastwood).  His subsequent client list includes JonBenét Ramsey's parents, Gary Condit, Herman Cain, Elon Musk, and the Catholic high school student in the 2019 Lincoln Memorial confrontation, Nick Sandmann, as against The Washington Post.  Wood boasts that CBS news personality Dan Rather tagged him, "the lawyer for the damned."

The case is La Liberte v. Reid, No. 1:18-cv-05398 (E.D.N.Y. Sept. 30, 2019), reversed and remanded by No. 19-3574 (2d Cir. July 15, 2020).  I've not mentioned an ISP immunity issue in the case, on which the Second Circuit affirmed in favor of the plaintiff; read more by Eric Goldman (July 30, 2020).