Sympathy for Alex Jones

            Democrats reacted with outraged contempt after then-candidate Donald Trump pledged in 2016 to “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.” Trump’s proposal, Brown political-science professor Corey Brettschneider wrote in a Politico piece typical of the response, “would run contrary to our long-established understanding of the First Amendment freedoms of speech and the press.”

So what’s with their crowing over the nearly $1 billion a Connecticut jury ordered Infowars host Alex Jones to pay the families of eight children murdered at Sandy Hook elementary school?

            Jones behaved reprehensibly. He repeatedly ranted on the airwaves that the 2012 massacre was a false-flag hoax perpetuated by the government in order to justify gun control, the parents were “crisis actors” and that the victims either never existed or might have been murdered by their own parents. Some people believed this garbage; 20% of Americans told a poll they think mass shootings are faked. Families reported receiving death threats and vicious communications from Jones’ followers.

Jones finally admitted the tragedy was “100% real” this past August.

Jones has a long history of cruelty and reckless rhetoric for profit. “He has had a role in spreading virtually every incendiary lie to dominate headlines over the past decade, including Pizzagate, the false claim that Democrats trafficked children from a Washington pizzeria; the ‘great replacement theory’ that ignited deadly neo-Nazi violence in Charlottesville, Virginia; Covid vaccine lies; and the 2020 presidential election falsehoods that brought a violent mob to the Capitol on January 6, 2021,” noted The New York Times.

Despite committing a litany of the most egregious crimes against journalism, however, Jones is a journalist. Not a good journalist. Nor a responsible one. Because no one, certainly no media organization I can think of, can credibly or clearly draw a line between a “conspiracy theorist” like Jones and an acceptable “mainstream” publication that speculates about nonexistent links between Saddam and Al Qaeda, missing WMDs that were actually found or quashes the Hunter Biden laptop story before finally admitting that it’s actually a real thing. Let he who is without misinformation cast the first editorial—not that self-awareness has made much of an appearance following the Jones verdict.

Suing the media is hard because in a world where reporters are human, turning honest mistakes into legal causes of action would make journalism impossible. The wide latitude given to press organizations has a downside: it protects bad actors like Jones.

In the Jones case, however, the legal system was also a justice system. Defamation is a clearly defined exception to the First Amendment; the pain and trouble Jones caused a group of grieving parents merits punitive compensation. The guilty verdict was justified. But the $1 billion damage award?

Hell yes, say liberal commentators. WBUR, the NPR affiliate in Boston, said $1 billion “is a start.”

“A small but crucial consolation,” observed Slate.

“Alex Jones’ lawsuit losses are not enough,” an editorialist opined at NBC News’ website.

“Tonight, I come to you with a spring in my step, a song in my heart, emotionally and spiritually refreshed,” said Stephen Colbert. “You know how, as humans, we have to accept the fact that, sometimes, bad things happen to good people? Well, by the grace of God, sometimes, bad things happen to Alex Jones. That’s a good thing.”

The tap-dancing on Jones’ presumed fiscal grave falls along ideological lines. Democrats, it seems, do approve of Trump’s wish to “open up the libel laws”—when the perpetrator is, like Jones, a Trumpian Republican.

            In 1994 an angry jury in New Mexico ordered McDonald’s to pay $2.9 million (equivalent to $5.8 million today) to a woman who was severely scalded by a spill of the fast food chain’s coffee. The verdict, subsequently reduced by the trial judge to a quarter of that amount, was dubbed the “poster child of excessive lawsuits” by ABC News and energized the tort reform movement.

            A fact that particularly agitated the jury was that McDonald’s had received 700 other complaints about burns from its coffee, which was hotter than industry norms, yet had refused to lower the temperature. The plaintiff’s injuries were severe; she required reconstructive surgery.

            Even by the eye-popping standards of some of the biggest libel verdicts in recent history, the scale of the Jones figure is breathtaking. Oberlin College ordered to pay $33 million to a local bakery it helped to smear as racist; Amber Heard dinged for $10 million for falsely accusing Johnny Depp of abuse; blogger Tasha K told to remit $4 million to Cardi B for saying she was a coke-addicted prostitute suffering from sexually transmitted diseases; other high-profile verdicts amount to pennies on the dollar compared to the Jones verdict.

            Alex Jones’ behavior was repugnant. But no one was injured as a result. Was his behavior 200 times more egregious or harmful than McDonald’s?

Conservatives, Adam Serwer writes in an Atlantic essay sarcastically titled “The Martyrdom of Alex Jones,” “defend their own right to defame others while insisting that the law itself should be changed to make it easier for powerful political figures to silence their critics. What they conceive of is a society, backed by right-wing control of the federal judiciary, in which they have a right to say whatever they want about you, and you have a right to shut up and like it.”

Unlike Serwer, I don’t know what conservatives are secretly thinking. I do know that, whatever was said, no matter how outrageous the speech was, a $1 billion judgement sends a chilling message to anyone who expresses themselves in a public space. The message of the Jones verdict is not that lies or disinformation are harmful, but that there are two classes of libel defendants in American courts—one organized, corporate, connected and protected by judges and fellow members of the establishment and thus barely accountable; the other individual, ostracized, on the outside and thus fair game for jurors and judges seeking to make outsized points.

            The gleeful reactions of otherwise sober editorialists to this bloated verdict speaks to how rageful partisanship has become a blinding force in American politics. Defeating an ideological adversary is no longer enough. Like the nuclear weapons that can destroy humanity many times over, nothing short of radical overkill will do. Foes must be obliterated, proportionality and oft-repeated devotions to free speech be damned.

(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, co-hosts the left-vs-right DMZ America podcast with fellow cartoonist Scott Stantis. You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)

 

In Defense of Defamation Lawsuits

            “He that filches from me my good name robs me of that which not enriches him, and makes me poor indeed,” Iago tells Othello in Shakespeare’s play. The belief that defamation is serious, and that the perpetrator of libel or slander deserves to be punished, is a standard trope in popular culture.

The Hollywood screenwriter falsely accused of communist sympathies struggles to clear his name in the 1950s. The journalist breaks a big story only to be smeared by the rich and powerful men whose crimes he exposed. The narrative of the innocent person sent to prison for a crime he didn’t commit relies on dual tragedies, the injustice of undeserved suffering as well as a conviction that results in society wrongly believing that the condemned is an evildoer.

In the real world, however, there is little sympathy for a person whose reputation has been damaged by a falsehood spread by a malicious enemy. One example is actor Johnny Depp’s $50 million defamation lawsuit against his ex-wife Amber Heard, who has countersued him for $100 million. Both parties accuse each other of physical and emotional abuse.

Much of the public commentary in response to Depp’s trial, currently underway in Virginia, is of the eye-rolling “they both deserve each other” variety. This happens a lot.

I’ve learned from personal experience as the plaintiff in two defamation cases that it’s often hard for society to separate the victim from his victimizer. Some suspect that the victim somehow brought the libel down on herself. Others think that whatever was said wasn’t that serious, and that the target of slander ought to brush it off and move on. Sometimes the libeler benefits from high social status that prompts outside observers to sympathize with them—the media elites who sided with snide Gawker over downscale Hulk Hogan in the sex-tape case come to mind. Many people simply don’t like lawsuits or those who file them.

Americans’ bias against defamation plaintiffs has created a lopsided judicial landscape in which it is nearly impossible for even the most meritorious defamation claims to make it to a jury trial, much less result in a substantial damage award.

In 1999 I wrote a cover story for The Village Voice that criticized graphic novelist Art Spiegelman for, among other things, deploying disproportionate power within New York’s publishing world. As if to prove my point, the artist’s allies and colleagues went after me with threats of violence. One of Spiegelman’s buddies, a pornographic illustrator whose name I won’t mention here because it would only further his further desire to aggrandize himself at my expense, decided to teach me a lesson—via identity theft. He wrote an obnoxious email, signed my name to it, and sent it to my colleagues and employers. My editor at the New York Times op-ed page believed it was from me and fired me.

As if that wasn’t bad enough, the creep sent out more out more messages under my name.

My lawyer hired a proto-cyberdetective to identify him, costing me thousands of dollars. After we tracked him down, we sent several cease-and-desist letters—which he ignored. To the contrary, he replied that he had done nothing wrong and would feel free to use my name in the future however he pleased.

I sued. New York case law is clear: impersonation of a journalist or “man of letters” is libel per se, or an act of written defamation so extreme that it is necessary only to prove that it happened, not to prove specific lost business opportunities. At a pretrial hearing a judge commented that the defendant “couldn’t have done more harm to Mr. Rall if he had walked up behind him in the street and shot him in the head.”

Because Spiegelman’s avenger didn’t have a defense, he filed for one delay after another. Online, he characterized me as a humorless jerk who was angry that he had made fun of me. Both tactics worked. My lawyer eventually died of brain cancer; my case is still technically pending on the court docket 23 years later. And many people in the cartooning community think that the two of us deserve each other, or that he’s a free-speech martyr. Never mind that I had never done anything to the guy, met him, or even heard of him guy before he tried to destroy my career.

I know I was right. The law was on my side. But those things didn’t matter.

The last two decades have seen a flurry of legislation that has made justice even more elusive for defamation plaintiffs. The most pernicious are “anti-SLAPP” laws, which stop discovery, dismiss cases and force plaintiffs to pay defendants’ legal fees. Because anti-SLAPP laws have been sold to state legislators and the public as a tool for small individual defendants to fight off big corporate plaintiffs in frivolous liable claims, they are popular with Republicans and Democrats alike: the ACLU, former labor secretary Robert Reich and TV host John Oliver are all fans of anti-SLAPP laws.

Actually, anti-SLAPP laws solve a problem that doesn’t exist. If a plaintiff lashes out at you with a libel lawsuit, the first thing your lawyer will do is file something called a “motion for summary judgment.” If the lawsuit is baseless, the judge will throw it out right at the start, and you’ll walk away paying zero to nominal legal fees.

Because there is no distinction under U.S. law between rich and poor plaintiffs and defendants, anti-SLAPP laws perversely protect some of the worst people in the world against their victims. Donald Trump used anti-SLAPP against Stormy Daniels after she sued him for calling her a con woman; her case was tossed and she was ordered to pay Trump’s $300,000 legal fees. Trump also used anti-SLAPP to further bankrupt a victim of his Trump University scam. He’s currently using anti-SLAPP against Jean Carroll, who says the former president raped her in a dressing room.

Libel-loving newspapers have been having a field day with anti-SLAPP. There is no question that The New York Times gleefully and intentionally smeared Sarah Palin as inspiring a mass shooter, yet wants the ex-Alaska governor to pay their fees—even though New York’s anti-SLAPP law was enacted after she sued. The National Enquirer knew that Richard Simmons wasn’t transitioning from male to female, yet Photoshopped images of him wearing women’s clothes on its cover story to that effect. He was right, they were wrong, he sued, they hit him with anti-SLAPP, the victim was ordered to pay his attacker $130,000. My readers are well aware of how The Los Angeles Times, then owned by the LAPD pension fund, intentionally smeared me and went after me with anti-SLAPP as well.

From the Scarlet Letter to people’s tendency to turn away from the homeless and physically disabled to the observation by moviemakers that audiences tend to lose affection for a character after he suffers a wound, the psychology of our reptilian brain often causes us to feel revulsion for fellow humans visibly suffering from an injury. The plaintiff often notices the glint of contempt in the eyes of the judge in a defamation case: why can’t you just stop whining and go away?

But the proper way to consider someone sleeping on the street is to think that there but for the grace of God go you. And the same thing is true when you look at a defamation case. Johnny Depp might just be a wuss lying about getting beaten up by his younger wife. But it’s far more likely that he thinks he was destroyed by ruinous lies, and that he has no choice but to sue in order to set the record straight. It’s a serious claim, one that anyone in his position should have the right to explore before a judge and jury.

 (Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, is the author of a new graphic novel about a journalist gone bad, “The Stringer.” Order one today. You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)

 

How Do You Feel About Sarah Palin? It Shouldn’t Matter.

            Scrolling through the comments sections under news stories about Sarah Palin’s defamation lawsuit against the New York Times—dismissed by a judge while a non-sequestered jury was still deliberating and no doubt next heading to an appeals court—provides ample evidence of the dismal state of political tribalization in this country. With few exceptions conservatives wanted to see her prevail against a media outlet they revile, while liberals who care neither for her politics nor her style argued that she deserves to lose because she helped contribute to the rhetorical toxicity in which they themselves are unwittingly participating.

Politics is personal. But the personal shouldn’t obscure policy.

            If they stopped to think about it, lefties ought to sympathize with Palin. Declaring herself “powerless,” Palin testified: “I was in Wasilla, up against those who buy ink by the barrel and I had my No. 2 pencil on my kitchen table.”

She’s not wrong. Having been a few million votes away from being a heartbeat away from the presidency 14 years ago may well make her something of a historical immortal, but that past doesn’t alter the present truth. Palin is now a private citizen, a relative David challenging a $7 billion Goliath with iconic cultural clout and the deepest of establishment ties, backed by decades of case law that protects media defendants to the extent that most aggrieved would-be plaintiffs never dare to sue. The New York Times, on the other hand, is hardly a sympathetic defendant. As progressives recall, the Times allowed reporter Judith Miller to propagandize in favor of invading Iraq, ran interference for Hillary Clinton against Bernie Sanders, and studiously stifles ideological expression to the left of the corporatist wing of the Democratic Party.

Without Palin’s proto-Trumpism, from a team-politics mindset she’d be the left’s inherent favorite.

            I am impervious to her charms. As I said in 2008, I voted for Barack Obama in large part because I worried that John McCain’s age and health increased the likelihood that the kooky Alaska governor would wind up in control of nuclear launch codes. I will always have contempt for anyone who thinks it’s cool to shoot wolves from a helicopter. But none of that matters in her lawsuit, which comes down to an important question: our society and democracy rely on robust freedoms of the press, but must the First Amendment remain a license to defame and an inducement to journalistic laziness, as has become the case since the 1964 case New York Times v. Sullivan?

            Defenders of free expression have often found themselves legally allied with controversial and disreputable figures. In 1978 the ACLU supported a neo-Nazi group’s application to march through the streets of Skokie, Illinois, a Chicago suburb where many survivors of the Holocaust lived. Hustler magazine publisher Larry Flynt received support from high-profile celebrities in his 1977 obscenity trial in Cincinnati as well as his 1983 legal defense against Moral Majority founder Jerry Falwell; the Association of American Editorial Cartoonists, of which I am a member and a former president, supplied an amicus brief in the Falwell case. The ACLU has consistently opposed attempts to ban the burning of the American flag at political protests.

The fact that these legal battles involved fascists, a notorious pornographer and profound disrespect of a revered national symbol is neither ironic nor bizarre; censors rarely target milquetoast or middlebrow expression.

            Several aspects of Palin v. New York Times ought to concern liberals and progressives.

            First and foremost, journalists who don’t check their facts and then print outrageous falsehoods about a person, even a public figure like Palin, ought to risk legal exposure. If it can happen to her, it can happen to you. Yet Federal Judge Jed Rakoff, 78, a liberal appointed by Bill Clinton, stated in his dismissal ruling: “Certainly the case law is clear that mere failure to check is not enough to support ‘reckless disregard’ in the context of any libel claim.” If he’s right, “reckless disregard for the truth” is a phrase without meaning—and that needs to change.

            Evidence favorable to Palin’s “actual malice” argument was brushed off in media coverage and, apparently by the judge. “What was missing from the whole production was any indication that Bennet was out to smear Palin,” wrote Erik Wemple of The Washington Post. Maybe there wasn’t a “smoking gun,” as Wemple noted. But what about motivation? What about conflict of interest? Former Times editorial page editor James Bennet—responsible for smearing Palin—has a brother, Michael Bennet. Michael happens to be a United States senator from Colorado—and Palin endorsed his Republican opponent. Michael despises Palin, calling her an “extremist.” Maybe James, a Democrat from a family of Democrats, doesn’t share his brother’s opinion of Palin. But I wouldn’t bet on it.

Rakoff didn’t allow the jury to hear that tidbit.

Ex post facto (or retroactively applied laws) are specifically prohibited under the Constitution. Palin sued in 2017 yet Rakoff ruled that her case was subject to the state’s newly-amended “anti-SLAPP” law enacted in 2021 and so requires her to meet the high bar set by Sullivan for public figures to prevail in libel and defamation claims. Do we want to live in a country where the rules change after the game has started?

Every plaintiff and defendant should enjoy an equal playing field but that doesn’t appear to be the case here. The Times was permitted to make the distracting, spurious argument that Palin’s reputation wasn’t harmed. “The Masked Singer. Do they put on inciters of violence?” David Axelrod asked during closing arguments. Under straight defamation, Palin would have to show she had lost income or opportunities. But she sued for defamation per se, a finding that what the Times said about her was so over-the-top that she deserves punitive damages without having to prove actual damages.

There are other indications that the judge harbored animus against Palin. “She is, of course, unvaccinated,” Rakoff remarked on January 24th after she tested positive for COVID-19. Of course, vaccinated people get the virus too. I did.

Then there was the judge’s unusual decision to dismiss her case while the jury was deliberating. Under anti-SLAPP, she will be ordered to pay the Times’ attorneys’ fees. Palin didn’t get justice but rather a brutalist simulacrum of due process. She was teased with the possibility of victory, both sides’ attorneys’ fees mounting at her expense, only to have it snatched away at the whim of one man rather than the judgement of 12 peers. And we were deprived of a clear jury verdict on a matter of public importance.

            Experts believed Palin’s right-wing politics might hurt her with her jury in New York, one of the most liberal cities in the country. “In this case, you have a very prominent plaintiff who is suing in a city that I would say would not be her favorite place to be judged,” First Amendment attorney Floyd Abrams, who sides with the Times, told Politico.

It didn’t help her with the judge. And it’s disgusting. Whatever Palin has done to the body politic or to wolves in Alaska, she is the victim here. No one, including the Times, disputes that the newspaper unfairly characterized her as being partly responsible for a fatal mass shooting when there was no evidence that that was true.

Palin’s personality and politics are irrelevant. The question here was not whether or not you like Sarah Palin. It was whether James Bennet engaged in “reckless disregard for the truth,” part of the standard of “actual malice” under Sullivan that Palin’s attorneys need to clear, or the paper got to walk away without paying her—indeed, she has to pay them—because it issued a correction after it discovered it was wrong.

It still is.

(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, co-hosts the weekly DMZ America podcast with conservative fellow cartoonist Scott Stantis. You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)

Ted Rall v. Los Angeles Times: What You Need To Know

My lawsuit against the Los Angeles Times is a long, complicated story. The following is an attempt to bring you up to speed in digestible form.

I became the staff cartoonist of the Los Angeles Times in 2009. Unbeknownst to me, in 2014 the LAPD Pension Fund became the biggest shareholder of Tribune Publishing, parent company of the Times. No one at the Times told me to lay off cartoons about the cops, probably because my editors too were unaware of the secret deal. In 2015 the Times fired me at the request of the LAPD.

The LA Times’ Nutty Audio
I was walking from a Bill Maher show taping to dinner in West Hollywood in October 2001 when an LAPD motorcycle officer confronted me, handcuffed me and roughed me up, drawing a crowd of passersby. He wrote me a ticket for jaywalking. I had not been jaywalking. I filed an Internal Affairs complaint about the false arrest but nothing came of it.
Image result for charlie beckIn July 2015 a LA Times reporter informed me that the officer had secretly audiotaped my arrest, that the LAPD (actually, it was Police Chief Charlie Beck, see below) had given the Times (actually, to publisher Austin Beutner, see below) the tape and that the tape showed I had lied about being handcuffed and mistreated by the cop in a 2015 blog that was posted with a cartoon that I did for the Times about an LAPD jaywalking crackdown.
The sound quality is atrocious. It’s 6-1/2 minutes of static, wind and traffic noise. There is evidence that it was spliced or otherwise tampered with. The LAPD audio neither confirms nor denies my account, which was truthful. Nevertheless, the Times decided to terminate me AND to publish a libelous “Editor’s Note” to readers intended to destroy my reputation as a journalist so that I would never work again.
I had the audio “enhanced”—cleaned up so that voices and other sounds could be heard. The enhancement confirmed my version of the encounter, including a woman shouting “Take off his handcuffs!” at the officer. I sent the vindicating evidence to my editors at the Times. They ignored me.

The Times Doubles Down
Three weeks passed. During this time, pressure built on the Times to reverse their decision. Journalistic organizations, Times subscribers commenting on their website, letter writers and social media from left to right urged the Times to reinstate me. They refused questions from reporters at other press outlets, censored the letters and shut down online comments at latimes.com. Thanks to the enhanced audio, the Times knew it had libeled me in the Editor’s Note. Rather than issue a retraction and offer me back my job, the Times issued a second article, this one by the Times’ ombudsman, that doubled down on the allegations from the first article, which they knew to be false.

My Lawsuit
I waited seven months for the Times to do the right thing. Finally, in 2016, I sued the Times, its parent company Tribune, and four individuals for defamation and wrongful termination. I am determined to defend my reputation against these scurrilous smears.

Here are the individual defendants:

Austin Beutner
Image result for Austin BeutnerTimes publisher at the time, hedge-fund multi-billionaire Austin Beutner was subsequently fired by Tribune for trying to orchestrate an inside-the-boardroom coup. Beutner secretly met with LAPD Chief Charlie Beck, who subsequently resigned in disgrace. At this meeting Beck handed Beutner the audio recording from 2001. Beck demanded that I be fired for criticizing the police in my cartoons; Beutner, Beck’s political ally and a man who’d like to run for mayor or governor, complied. (The Times still hasn’t told readers where the audio came from.) Beutner is currently the superintendent of the Los Angeles public school district, the largest in the country. His refusal to give teachers a raise prompted an acrimonious walkout by educators.

Nicholas Goldberg
Image result for nick goldberg la timesTimes editorial page editor Nicholas Goldberg, a middle manager, appears not to have been trusted with inside knowledge of the high-level conspiracy between Beutner and Beck. It’s hard to know anything for sure before the courts grant discovery, but Goldberg’s role was likely limited to that of hatchet man: his by-line is on the Editor’s Note.

Paul Pringle
Image result for paul pringle la timesBypassing Goldberg, Beutner probably assigned Times investigative reporter Paul Pringle to look into my story. Pringle informed me that the LAPD was accusing me of lying and questioned me at length about what happened the evening of the jaywalking arrest. Pringle, who worked the “cop shop” beat for years and thus spent a lot of time with police, made clear that he believed the cops, not me. Among other silliness, he asked why the low-quality audio didn’t contain the sound of my driver’s license (made of paper) hitting the ground after the officer tossed it or the click of the handcuffs going on. He also wondered why there was no sound of me arguing with the officer; I repeatedly explained that I was compliant, that I don’t argue with cops. In order to determine the authenticity of the LAPD audio, he told me, he asked the LAPD if it was legitimate. Pringle won the 2019 Pulitzer Prize for Investigative Journalism.

Deirdre Goebel Edgar
Image result for deirdre edgarUntil 2018 Deirdre Goebel Edgar was the “Reader’s Representative” of the Times. The reader’s representative is the ombudsman of a newspaper; though paid by the paper her duty is akin to Internal Affairs at a police agency: to make sure the paper is upholding journalism’s highest ethical standards in service to readers. Indeed, in 2014 she authored the Times’ Ethical Guidelines. Among other things, the guidelines require that the subject of a critical story be interviewed at length, in person, to give their side. Edgar wrote the second “doubling down” article in 2015 smearing me as a liar. She did not contact me.

The Times Hits Me With an Anti-SLAPP Motion
Image result for kelli sagerCalifornia’s anti-SLAPP (strategic lawsuit against public participation) law was designed to stop individuals and whistleblowers from being slammed by big corporations like real estate developers out to crush community activists by tying them up in court with frivolous defamation claims. After I sued the Times, Kelli Sager—a high-powered $715/hour attorney employed by such reputable enterprises as the National Enquirer to fend off legitimate libel lawsuits—hit me, a fired $300/week cartoonist, with an anti-SLAPP motion alleging that I was using my power and influence to deprive the Times of its First Amendment free speech rights. The Times is currently owned by Dr. Pat Soon-Shiong, who is reportedly worth $7 billion. Soon-Shiong gets a lot of good press that he doesn’t deserve; he has continued to employ Sager.
Before the case begins, the anti-SLAPP motion must be resolved. First up: the trial court.

Superior Court
At trial court in Los Angeles, the Times filed a motion for summary judgement against me, arguing my claim to be frivolous. The judge at the time, who retired a few months later, denied the Times’ motion.
Switching tacks, Sager filed a motion demanding that I post $300,000 cash bond to guarantee the Times’ legal fees in the event that it won anti-SLAPP and won a judgement that required me to pay the Times’ attorneys’ fees, because I live in New York and not California. The judge knocked it down to $75,000. Hundreds of people contributed to my GoFundMe. I posted bond. Every year I pay the bond company $1250 to hold the money.
After a blizzard of stalling tactics by Sager, Judge Joseph Kalin heard the anti-SLAPP motion in 2017. Just days before the second and third of three anti-SLAPP arguments, attorney Carney Shegarian abruptly fired me as his client. I do not know why. I quickly found a new attorney but Judge Kalin ruled that I had to represent myself against Sager in oral arguments.
Anti-SLAPP requires judges not to assess the evidence, but to assume that all the claims are true to see if the complaint has any merit. Kalin assessed the evidence, agreed that the audio enhancement showed I was innocent, and nonetheless ruled against me. He ordered me to pay the Times $330,000 for Sager’s fees.
I appealed.

Court of Appeal
Earlier in 2019 the Court of Appeal, also in Los Angeles, heard my appeal. Like Kalin, the Court of Appeal ignored the anti-SLAPP rule about assessing evidence. During oral argument Justice Elizabeth Grimes, seemed shocked when my attorney Jeff Lewis brought it up. Grimes ruled for the Times.
I appealed. The California Supreme Court accepts fewer than 5% of petitions for review so I was pleasantly surprised when they agreed to hear my appeal. Seven major First Amendment organizations issued amicus letters supporting my appeal to the state Supreme Court.
My petition was a “grant and hold,” which means it’s tied to the outcome of a related case, in this situation Stanley Wilson v. CNN. Wilson claims he was wrongly terminated and defamed by CNN as a ruse, with the real reason being race discrimination.

California Supreme Court
The high court ruled in favor of Wilson in a ruling that urges lower courts to grant discovery in anti-SLAPP cases, something that was denied us. As we petitioned and against long odds–they reject more than 95% of appellants–the court remanded us back to the Court of Appeal with instructions to rehear us in light of Wilson.
A favorable ruling by the Court of Appeal would mean that the $330,000 judgement would be erased, we can begin discovery and, four-plus years after the fact, the actual case would commence.

What Do the NY Times and LA Times Have in Common with the National Enquirer? They All Love anti-SLAPP Laws

Image result for national enquirer richard simmons sex change

The National Enquirer is in the news rather than reporting it—not for printing that Elvis is alive and well, but for its alleged role as “a dirty-tricks shop for Donald J. Trump in 2016,” as The New York Times put it in an article that described the supermarket tabloid as “the most powerful print publication in America.” The Enquirer served as a propaganda rag for The Donald, first targeting Ted Cruz during the primaries and then amplifying anti-Hillary conspiracy theories like “PizzaGate,” the ridiculous stories that candidate Clinton was sleeping with Huma Abedin and that she had hired a “hitman” to murder people who annoyed her.

It paid $150,000 for the story of a former Playboy model who said she had an affair with our current president—so they could bury it. (They call this a “catch-and-kill” deal.)

Even for the pond-scum standards of the National Enquirer, this is super sleazy. Mainstream media outlets like the Times are pointing out how gross and yucky the Enquirer is and they’re right to do so.

What these august guardians of the Fourth Estate are not as eager to talk about is how, when it comes to a little-known law with a massive effect on libel and defamation law, respectable print institutions like the New York Times are on the same side as such exemplars of yellow journalism as the National Enquirer.

Twenty-eight states—including many of the most populous—have “anti-SLAPP” laws ostensibly designed to protect newspapers, radio and television outlets from being sued for libel or defamation.

Their real purpose is to allow the media to get away with murder.

Let’s say a newspaper prints an article that destroys your reputation: for example, you’re a teacher and the piece says you sexually assaulted students. Now let’s say that you’re innocent. Not only that, you can prove you’re innocent. So you sue the paper for defamation or libel.

In the old days, your lawsuit would head to discovery and then to trial where a jury of your peers would weigh the evidence. If 12 men and women good and true agreed that the paper had lied about you and hurt your reputation, they might award you damages to make up for lost wages and other financial harm. After all, even a verdict in your favor probably wouldn’t cause a school district to be willing to hire you.

Now we have anti-SLAPP. If you live in a state with one of these pretzel-logic statutes, the odds of getting justice are very low. It doesn’t matter how brazen the lie about you was or how much it hurt you or your livelihood. Even if you can prove the paper knew what they said about you wasn’t true when they decided to print it, an anti-SLAPP motion will probably stop you dead in your tracks—assuming you can find a lawyer willing to represent you in a state with an anti-SLAPP law in the first place. As a defamation law expert in California told me, “Defamation law is effectively dead. There is no redress.”

Here’s how it works. First you sue. Then the paper that slimed you files an anti-SLAPP motion. Discovery—subpoenaing each other’s documents, deposing witnesses on both sides—halts before it begins. So you can’t collect evidence. Years pass. Legal bills mount. Without access to documents and witnesses you have to convince a judge—not a jury—that your case doesn’t involve “privileged communications”—whatever that is—and that you’ll probably prevail before a jury. Of course, the judge doesn’t know that. Odds are you’ll never see that jury. Here’s the best part: after the judge tosses your case, you—the victim!—have to pay the legal fees of the publication that tried to ruin you.

Because they violate the centuries-old right to trial by jury, two state Supreme Courts—in Washington and Minnesota—have gotten rid of their anti-SLAPP statutes, ruling them unconstitutional. But there’s still a long way to go before sanity prevails; if anything, the momentum is for more states to legalize defamation with anti-SLAPP laws.

Because anti-SLAPP motions are themselves the subject of years-long litigation and appeals, trial lawyers rake in hundreds of millions of dollars a year from the anti-SLAPP racket. The only victims are plaintiffs forced into bankruptcy.

Run a Google search for “criticism of anti-SLAPP laws” and you’ll likely come up empty. News articles about anti-SLAPP contain countless quotes in favor, none against.

Media companies love anti-SLAPP laws because they allow them to run “fake news” day after day without the slightest worry of being held accountable for their perfidy. Even liberal former labor secretary Robert Reich has fallen for anti-SLAPP propaganda, which holds that such laws help poor individuals defend themselves against frivolous lawsuits filed by deep-pocketed corporations when, in fact, the opposite is more often true.

A California court recently ruled in favor of an anti-SLAPP motion filed against fitness icon Richard Simmons by the National Enquirer. Simmons had sued the tabloid after it falsely published a BS cover story (which it described as “shocking!”) claiming Simmons had undergone a sex change to become a woman. He had not. Simmons said he “has a legal right to insist that he not be portrayed as someone he is not” and “to be portrayed in a manner that is truthful.” Few reasonable people would disagree.

Simmons got screwed.

Check out the Orwellian Enquirer argument the judge bought hook, line and sinker: “Plaintiff has no right to suppress speech about him, even false speech, if it is not harmful to his reputation.” The judge ordered Simmons—the victim—to pay $130,000 to the Enquirer, which admits it lied about him. “Falsity is not enough” to prove defamation, said Enquirer attorney Kelli Sager.

The anti-SLAPP business has become shameless. Sager even defended the Daily Mail after it ran a fake-news story connecting First Lady Melania Trump to an escort agency.

The Los Angeles Times recently made a similar anything-goes argument in favor of its anti-SLAPP motion against me. In 2015, when the #1 shareholder of the Times’ parent company was the LAPD pension fund, the then-LAPD chief ordered the then-publisher, his political ally, to fire me and run a fake-news story describing me me as a liar and fabulist. After I proved it was the Times and not me who lied, Kelli Sager—the National Enquirer lawyer who also represents the upscale Los Angeles Times—told the court: “This is not a case about the quote-unquote truth.”

After I sued for defamation, the trial judge—in the same courthouse as the Simmons case—ruled that I—the victim—must pay the Times $330,000 in their legal fees even though I had shown they were liars and that they knew what they printed about me was untrue at the time. Like Simmons, we are appealing.

The Enquirer recently hit the Playboy model in the Trump case, Karen McDougal, with an anti-SLAPP motion that would force her to pay its legal fees.

For my money the most outrageous California example of abuse I’ve read recently is former Trump attorney and fixer Michael Cohen’s anti-SLAPP motion against Stormy Daniels. Cohen said Daniels lied about having an affair with Trump—which is plainly false.

Cohen has been sentenced to three years in prison for arranging hush-money payoffs to Karen McDougal and Stormy Daniels. Too bad he won’t be bunking with the publishers of the National Enquirer and The Los Angeles Times.

(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, is the author of “Francis: The People’s Pope.” You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)

 

SYNDICATED COLUMN: The “Thin Grey Line” — The Media’s Conspiracy of Silence on Defamation and Libel

Even the shirt is “fake news.” Look at the text. It’s not actually printed on the fabric. (from LATimes.com)

I am suing for the Los Angeles Times and the $638 million newspaper conglomerate Tronc for the defamation and wrongful termination they carried out as a favor for the chief of Los Angeles Police Department.

I don’t know how things will turn out. But I have learned a lot about the justice system.

            I’ve learned there’s a “Thin Grey Line” — a conspiracy of silence that media outlets use to shield one another from public scrutiny and accountability. It’s not President Trump’s supposed “fake news.”

It’s No News At All.

A black hole.

If media misconduct falls in the woods, whatever sound it makes receives no coverage in “rival” media outlets.

The Thin Blue Line is a 1988 movie describing how police protect one another from allegations of wrongdoing by clamming up about what they know, leading to the railroading of an innocent man. Similarly, media organizations conspire to keep allegations of libel and other wrongdoing out of the public eye. You don’t cover my bad behavior and I won’t cover yours.

Of course, some libel lawsuits are too big to ignore. In those cases the Thin Grey Line slants their coverage to make the victims look like petulant crybabies or greedy pro-censorship fascists.

I learned about the Thin Grey Line when I reached out to media organizations about my situation with the LA Times. Although certain outlets did a good job covering my case — the UK Guardian and the New York Observer stood out — big papers like the New York Times and Washington Post wouldn’t touch it.

“Cartoonist Critical of Police Fired as Favor to LAPD after LAPD Pension Fund Buys Major Interest in LA Times’ Parent Company” has all the components of a major story: big guy crushes little guy, privacy violations, secret police spying on citizens going back decades, ugly conflicts of interest, a police department pension fund that bought newspaper stock so it could leverage it into editorial control of major newspapers, a criminal conspiracy at the highest levels of local government.

If the villain wasn’t a media company, a media outlet would be all over it.

Most U.S. media outlets ignored my story. Most that put out reports were either online-only or based overseas.

Some, like NPR, explained that my story required investigative reporting for which they didn’t have a budget.

Rall v. Los Angeles Times is a natural fit for The Intercept, the news site dedicated to the Snowden revelations and perfidy by government and the press. Indeed, an Intercept reporter worked the story, spending hours talking to me. Then he took it to his editors — who killed it. Was someone higher on the food chain connected to the Times or LAPD? Were they reluctant to take on a fellow media outlet? All I know is, the guy never called me back. That’s unusual to say the least.

Historically, problems at the local daily newspaper have been red meat to an alternative newsweekly, the scrappy underdog in many metro media markets. New York’s late Village Voice used to love taking on the Times, Post and Daily News. But things are different now. Journalists who follow Los Angeles are shocked that LA Weekly won’t cover my two-year-old lawsuit.

Major libel verdicts against media outlets get buried by the Thin Grey Line. A jury dunned the Raleigh News & Observer $9 million for libel in 2016. Two Cal Coast Weekly writers owe their defamation victim $1.1 million as of 2017. You probably didn’t hear about those.

But you probably did hear about Hulk Hogan’s $140 million libel verdict against Gawker, which put the site out of business. Most coverage bemoaned the supposed effect on press freedom, not Gawker’s crazy decision to publish a video of Hogan having sex or to keep it online after Hogan’s lawyer offered to let the whole thing go for zero cash if Gawker took it down.

            Legacy media still hasn’t figured out the Internet. But they’re good at propaganda. Exploiting Trump’s bombastic “fake news” broadsides against the press, they’re casting themselves as party organs of the anti-Trump “Resistance.”

“Democracy dies in darkness,” The Washington Post tells its readers.

“The truth is more important now than ever,” quoth The New York Times.

Hilariously, The Los Angeles Times: “Speaking truth to power.” (But not to the chief of police!)

            As a journalist and satirist who relies on the First Amendment, I am sympathetic to worries that news outlets might self-censor due to the threat of libel suits. But corporate media looks ridiculous when they portray every defamation and libel plaintiff as sinister threats to press freedom. And it’s downright silly to pretend that every libel and defamation case is inherently frivolous.

“The $140 million payout mandated by a Florida court in Hogan’s privacy case against Gawker, which was bankrolled by Silicon Valley billionaire Peter Thiel, was a chilling development for media companies that are already battling to keep costs down,” Keith Gessen wrote in Columbia Journalism Review.

Nowhere in Gessen’s piece did he mention that Gawker could have saved every penny of that $140 million by exercising a modicum of editorial judgment. Or that Thiel’s role merely leveled the playing field between an individual and a (then-) deep-pocketed media outlet.

The Hogan verdict is only “chilling” to publications so arrogant and stupid as to fight for the right to gratuitously publish material that can ruin a person’s life — material with zero news value — without a legal leg to stand on.

Based on the coverage of the Gawker-Hogan coverage I’ve read since the 2016 verdict, most media outlets are still pushing the Thin Grey Line narrative that Hogan had no grounds to complain. I say that Hogan has the right not to have his sex acts posted to the Internet without his permission.

Thin Grey Line aside, I bet most people agree with me.

(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, is the author of “Francis: The People’s Pope.” You can support Ted’s independent political cartoons and columns and see his work first by sponsoring his work on Patreon.)

SYNDICATED COLUMN: Media Companies Are Abusing Anti-SLAPP Laws to Publish Fake News with Impunity

Image result for national enquirer richard simmons

The National Enquirer and Radar Online published a series of news stories that reported that Richard Simmons, the fitness instructor and TV personality, was transitioning to become a woman. “Richard Simmons: He’s Now a Woman,” read an Enquirer headline.

He’s not.

The Enquirer lied about Simmons. So he sued.

Seems like a straightforward case of libel. Yet, insanely, thanks to California’s constitutionally dubious, nonsensical “anti-SLAPP” statute, a judge has ordered him — a bona fide victim of “fake news” — to pay the Enquirer $122,000. The miscarriage of justice in Simmons’ case is worth thinking about as well-intentioned progressives try to defend the Fourth Estate from toxic smears by President Trump.

Proposals like a federal “shield” law to protect journalists and their sources could help shore up the First Amendment. But the current push for a national anti-SLAPP law like the one that slammed Simmons is woefully misguided and would only bolster Trump’s argument that the media publishes lies with impunity.

Simmons, a gay icon who calls himself “an avid supporter of the LGBTQ community,” sued the media outlets for libel in Los Angeles. Simmons presented key evidence, an Enquirer document indicating that the newspaper could not rely on its source for the Simmons transgender story, his former assistant.

The landmark 1964 U.S. Supreme Court case Sullivan v. New York Times established a standard that, in order to prove libel, a public figure such as Simmons must show that the defendants either knew a story was false at the time of publication, or that they had reckless disregard for the truth. Simmons seems to have the makings of a successful case on both counts.

Simmons says he sued because the stories violated his privacy and falsely portrayed him as someone he’s not. Also, given that as many as one out of four Americans are uncomfortable with and/or actually despise transgender people, it would not be unreasonable for Simmons to worry that he might lose business as a result.

Twenty-eight states have anti-SLAPP (“strategic lawsuit against public participation”) laws. They’re presented as a way for a poor individual or whistleblower to defend themselves from deep-pocketed corporations. The reality is a classic case study in unforeseen consequences: poorly-written, confusing anti-SLAPP laws are routinely abused by giant media outlets so they can avoid being held accountable for reckless smears and to send a chilling message to victims who seek redress in the courts.

The assumption behind anti-SLAPP appears to have originated during the Reagan-era “tort reform” movement. Courts, conservatives claimed, were clogged by frivolous lawsuits filed by giant companies. In 1996, for example, Texas cattlemen sued talk host Oprah Winfrey under the state’s “veggie libel” law for saying that she’d stop eating burgers. But there is no statistical evidence that the problem, if it exists at all, is widespread or can’t typically be disposed of by the standard litigation tactic of filing a motion for summary judgment.

In states like California, a libel or defamation defendant like the National Enquirer can file an anti-SLAPP motion as soon as it receives a lawsuit. Discovery stops. Plaintiffs aren’t allowed to subpoena documents or depose witnesses. A judge reads the legal complaint, assumes everything the plaintiff says is true and everything the defendant says is false and, based on those assumptions, assesses whether the case has minimal merit. If so, the anti-SLAPP motion is denied and the case moves forward.

If not, the case is thrown out of court and the plaintiff is ordered to pay the defendant’s attorneys’ fees. (The supreme courts of Minnesota and Washington have declared anti-SLAPP laws unconstitutional because they violate plaintiff’s right to a jury trial.)

That’s what happened to Richard Simmons. He is appealing.

Anti-SLAPP laws rely on a flawed theory. In reality, deep-pocketed interest groups like the cattlemen who sued Oprah aren’t deterred by the potential expense of having to pay the defendant’s legal fees. Moreover, the statutes are extremely confusing, featuring more exceptions to exceptions than French grammar. Moreover, anti-SLAPP asks judges to act against their very nature; for example, judges are not supposed to assess the evidence, but simply take everything the plaintiff says at face value. In case after case, judges simply can’t help themselves.

Judges are gonna judge.

Which is how Simmons, the gay icon, wound up on the hook for $122,000, forced to pay a newspaper that lied about him, that oppressed him, that common sense says owes him an apology and a retraction, as a martyr to transgender rights. Los Angeles Superior Court Judge Gregory Keosian ruled that Simmons falsely being declared a woman did not expose him to “hatred, contempt, ridicule or obloquy,” so no more defamation occurred than if they had falsely described the color of his clothes.

“While, as a practical matter, the characteristic may be held in contempt by a portion of the population, the court will not validate those prejudices by legally recognizing them,” Keosian ruled.

If Simmons loses his appeal, California’s Court of Appeals will order him to pay the publications even more money.

To most people, Simmons’ case is a mere judicial curio. Not for me. I’ve taken an interest in anti-SLAPP laws since 2016. That was when the Los Angeles Times, defended by the same lawyers as the National Enquirer, filed a California anti-SLAPP motion against me. I had sued the Times for defaming me in a pair of articles they ran as a favor to the Los Angeles Police Department, which I had criticized as the paper’s editorial cartoonist, by falsely accusing me of lying and fabulism.

Like the judge in Simmons’ case, Judge Joseph Kalin failed to follow the letter of the anti-SLAPP statute. He ignored the minimal-merit standard. In his decision, he stated that the facts in the case were in my favor, not the Times. Nevertheless, he ruled against me using logic counter to the anti-SLAPP law and awarded the Times and their lawyers — the party that victimized me — $350,000. I am appealing too.

In both these cases and countless others, wealthy media conglomerates are shaking off cases that deserve their day in court before a jury, and collecting hundreds of thousands of dollars at a time from plaintiffs victimized by brazen journalistic malfeasance. Media companies might be winning in courthouses — but they’re getting clobbered in the court of public opinion.

(Ted Rall, the editorial cartoonist and columnist, is the author of “Francis: The People’s Pope.”)

Ted Rall vs. LA Times: Here’s Rall’s Appellate Brief Challenging the Times’ Nasty, Abusive “anti-SLAPP” Motions

Yesterday my attorneys filed, and California’s Court of Appeals accepted, our Appellate Brief in my defamation and wrongful termination lawsuit against the Los Angeles Times et al.

I sued in 2015. The Times filed three anti-SLAPP motions against me, halting the case because they’re scared of facing a jury and want to intimidate me. In 2017 a lower-court judge ruled for the Times, ordering me to pay them $350,000 in the Times’ attorneys fees. This document is our appeal of the 2017 decision.

If successful, the $350,000 judgement will be vacated and I can build my case to take to a jury.

If not, the $350,000 stands, plus more fees for the Times defense of this appeal. And my case dies. And Californians who work for media companies will have no recourse in the courts if their employer discriminates against them, even if they do so for racist or sexist or homophobic reasons.

Please read our brief below; it’s an interesting read. I look forward to hearing your thoughts and reactions. Thank you for your incredible support!

 

Ted Rall vs. Los Angeles Times: anti-SLAPP Appellate Brief by Ted Rall

Lawsuit Update

It has been a while since I filled you in on what’s going on with my lawsuit, so if you’ve been wondering, here’s what’s what.

The original judge in my case, Teresa Sanchez-Gordon, retired. That was a bummer for me because she seemed to understand the case and its importance, and for the most part, she ruled in my favor. LA Superior Court handed the LA Times’ anti-SLAPP motion against me over to a temporary substitute judge, a retired gentleman brought back for a few months in order to help the court dig out of its formidable backlog. Judge Joseph Kalin informed us that he had over 500 cases on his docket. He also said that he had read all of the documents in my case over the previous week. Considering that they are over a foot high and amount to thousands of pages, call me skeptical. No human being could possibly handle all that work.

Adding to the challenge was getting sabotaged by my own lawyers. Rather than send a seasoned litigator to argue the crucial anti-SLAPP hearings (of which three were scheduled), Shegerian & Associates sent a junior associate just a few of years out of law school to argue against Times attorney Kelli Sager, a veteran litigator with decades of experience at a major white-shoe law firm that represents giant corporations trying to crush workers. She was timid, unprepared and failed to fight back when Sager said things that simply weren’t true. Unsurprisingly, the judge ruled against me.

With two more hearings to go, I asked the firm to send out the litigator that we had agreed upon. Carney Shegerian responded with a Notice of Termination. That’s right: my own lawyer fired me! It’s not because I was rude or anything like that. I wasn’t. I don’t know why he did it but I do know that other lawyers tell me that this kind of behavior, dumping a client right before a crucial hearing, is highly unethical.

I managed to find a new attorney in time for the next hearing, but Judge Kalin refused to grant me a continuance to allow my new lawyer time to familiarize himself with my case, and forced me to do my own oral argument. Naturally, the Times lawyer didn’t grant me the basic courtesy of a continuance. All along, they have been playing by scorched-earth tactics.

OK, so I did better than the junior litigator: the judge acknowledged that I had told the truth about my jaywalking arrest in 2001. Which means that the Times never should have written those two articles libeling me and that they should have retracted them and that they should have hired me back immediately. Instead, Judge Kalin ruled that, as a newspaper, the First Amendment gives the Times the right to publish anything, even lies, because of the anti-SLAPP law. Strike two.

Now we go to the Court of Appeals, where we will ask the Court to reverse Judge Kalin’s ruling.

I have a sharp new legal team for the appeal: appellate attorney Jeff Lewis and trial lawyer Roger Lowenstein. We’ve been strategizing and I feel we have a strong case base on the both the content and the spirit of the law, not to mention precedent.

We are drafting our appellate brief, which for anti-SLAPP the court considers de novo, or without consideration for the lower-court ruling. Then the Times gets to respond. Then the court sets a hearing date. Best guess right now is that the appeal will be heard in mid-2018.

If we prevail at that stage, then the case really begins: discovery, subpoenas, depositions of Times employees, etc. If we lose, that’s it. And I’ll owe the Times hundreds of thousands of dollars in THEIR legal fees. Anti-SLAPP is brutal and desperately needs reform to stop these megacorporations from abusing it to crush individual plaintiffs.

In the meantime, I will be incurring substantial costs related to the case, so if you feel inclined to support my fight against the collusion between the LA Times and LAPD Chief Charlie Beck, you can help out at http://gofundme.com/tedrall.

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