Weighing in with an Amicus Letter in Ted Rall v. Los Angeles Times, Project Censored calls the LA Times’ legal tactics “backwards and obscene.”
Project Censored is the sixth major First Amendment organization to support me with an Amicus Letter to the California Supreme Court.
Thanks also to the National Coalition Against Censorship for filing an Amicus Letter on my side with the California Supreme Court as I defend myself against the LA Times and its billionaire owner, which are trying to bankrupt me because I criticized their close political ally and former business partner, the LAPD.
Thank you to the Comic Book Legal Defense Fund for filing an Amicus Letter in my case against the LA Times and in favor of free speech with the California State Supreme Court! Anti-SLAPP laws should not be abused by giant corporations to stifle free expression.
Whether journalists in California will keep basic employment protections and whether libel will remain actionable are now important issues in the hands of the California state Supreme Court. We filed our Petition to Review with the court yesterday. Please read it here. It’s a good primer about an important case. And please wish me luck. I need it!
Thank you for your continued support.
I have written extensively about my lawsuit against the LA Times. As I prepare for the next, do-or-die, stage of my case, it’s time to explain why Rall v. Los Angeles Times et al. has broad implications beyond me personally.
Freedom of the press is at stake.
The subtle yet fundamental question here is: who needs freedom of the press? The obvious answer is journalists: reporters and pundits. But journalists’ freedom to report and editorialize is in grave danger from a surprising enemy: their employers.
Once was, reporters like Woodward and Bernstein were on the same side as their employers. In this age of corporate aggregation of newspapers and other media outlets by publicly-traded media corporations and individual billionaires, however, newspapers and other media outlets are often compromised by their quest for profits, as the LA Times’ parent company was when it allowed its stock to be sold to the LAPD pension fund. In this struggle the media companies have framed themselves as guardians of press freedom at the expense of journalists, ironically securing the power to screw journalists in the guise of First Amendment protections.
If the California Supreme Court refuses to hear my case — which is probably what will happen — or hears it and rules for the Times’ anti-SLAPP motion against me, the court will send a chilling message to journalists and pundits across the country. Most Americans, and most reporters, live in states with anti-SLAPP statutes modeled on California’s.
The threat to journalists is unmistakable: rock the boat and you risk being destroyed.
Write an article critical of a powerful institution like the LAPD, the nation’s highly militarized, largest and most brutal police forces, controlling a $16 billion pension fund, and they can pull strings to get you fired. It can also happen in a tiny town like Baker City, Oregon.
Even worse, you can’t find another job because they use falsified “evidence” to smear your reputation for honesty. Even if you can prove that it’s BS — as I did — media companies use their editorial endorsements of jurists and politicians to rig the courts with their allies so you, the victim, get dunned hundreds of thousands of dollars for the villainous media company’s legal fees!
I have advice for journalists thinking about covering police abuse: don’t. The price for doing your job — termination, defamation and bankruptcy — isn’t worth it.
If I could go back to 2015 when the LAPD-owned LA Times trashed my reputation in service to a thin-skinned police chief, I would not draw or write anything about the cops. It’s too dangerous.
I have learned how big media companies have stacked the bench with sympathetic judges, lobbied for laws that protect them from accountability for breaking the law and used their influence to crush individual journalists for such crimes as reporting the news or having worked long enough to earn a high salary. The system doesn’t even pretend to be fair. Many judges are former prosecutors; how can they justify not recusing themselves from cases involving the cops?
Now there is a $330,000 judgment against me for having the gall to defend my reputation in court. Unless the California Supreme Court overrules it, that judgment will be final and will grow bigger. Journalists and pundits aren’t covering my case — they’re afraid, as they ought to be — but they are watching. If the judgment stands, who will be stupid enough to take on the LAPD or similar institution?
As if the chilling effect on journalists wasn’t enough reason to watch my case, the Times is arguing (so far, successfully) that media companies should no longer extend protections against discrimination by gender, age and sexual orientation to their workers. Unless the court overturns the lower court rulings against me, the door will be pushed open for the Times and other California media corporations to fire, say, its African-American or transgender employees without redress in the courts.
Then there’s the damage to defamation law. For hundreds of years it has been possible for a person wrongfully slimed by a news publication to go to court to try to clear their name. Abusive anti-SLAPP motions have made a mockery of libel law to the point that the National Enquirer, represented by the same lawyer as the Times, falsely claimed Richard Simmons had become a transsexual woman and Simmons was ordered to pay $130,000 to the Enquirer!
It should be challenging to sue for libel, not impossible.
“The quote/unquote truth doesn’t matter,” Los Angeles Times/National Enquirer lawyer Kelli Sager said in court. So far, she’s been right. Judges have bent over backwards to believe the Times’ many lies and ignore the plain truth right in front of them. Hopefully a court outside LA will let me get my day in court.
(Ted Rall, the 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.)
I was wronged. All I wanted was a trial by jury, a right enshrined in Anglo-Saxon legal tradition in the Magna Carta 803 years ago.
Is this still America? No. America is dead.
Not only have I been denied that fundamental right, I have been punished for having had the temerity to seek redress in the courts.
Justice is when wrongdoers are punished and victims are compensated. Instead, the California court system has provided Anti-Justice. The wrongdoers are getting off scot-free. I, the victim, am not merely being ignored or brushed off. I am being actively punished.
The ruling in Ted Rall v. Los Angeles Times et al. came down last week. The California Court of Appeal ruled in favor of the Times’ “anti-SLAPP” motion against me. Anti-SLAPP law supporters, including the Times, say they’re supposed to be used by poor individuals to defend their First Amendment rights against big companies. But that’s BS. The Times—owned by the $500 million Tronc corporation when I filed suit, now owned by $7 billion biotechnology entrepreneur Dr. Patrick Soon-Shiong—abused anti-SLAPP to destroy me.
My case was simple. I drew cartoons mocking the LAPD and then-Chief Charlie Beck for the Times, criticizing them for abusing people of color and the poor. A new publisher, Beck’s pal, took over. Beck asked publisher Austin Beutner to fire me and to smear me so I couldn’t work anymore. So the Times ran two pieces announcing that I’d been fired, not for offending Beck—violating their own Ethical Guidelines, they kept his identity secret—but for supposedly lying in a blog post discussing a jaywalking arrest in 2001. I hadn’t lied. I told the truth. And I proved it.
“One hell of a defamation case,” a lawyer told me. Another, a top expert on libel, said: “If you don’t win your case, defamation law in California is dead.”
But as the Times’ lawyer kept saying in court, “the quote/unquote truth doesn’t matter.” She was right. What mattered were power, money and influence.
The ruling means my case will probably never go to trial. The court has already ordered me to pay $330,000 to the Times for their legal fees because hey, a guy with $7 billion obviously needs and deserves to get cash from a cartoonist the Times used to pay $300 a week. That sum will definitely be higher—perhaps double—by the time the Times files the rest of its padded legal fees.
I will never get discovery, which means neither I nor the readers of the Times will ever learn the details about how then-publisher Austin Beutner (now superintendent of LA schools, where teachers are on strike because Beutner doesn’t want to give them a proper raise) arranged for the LAPD pension fund to become #1 shareholder of the Times’ parent company. Neither I nor the readers of the Times will ever know just how deep the corruption between the LA Times and the LAPD went, or to what extent the Times agreed to provide police-friendly coverage.
For me personally the ruling necessarily means bankruptcy and/or being forced to leave the United States so I can continue to earn a living. This used to be the kind of thing that happened to journalists in other countries, not the U.S. Unfortunately, I couldn’t even get the ACLU behind me—because they don’t want to be seen as opposing the anti-SLAPP law.
I’m much luckier than Jamal Khashoggi—though the scorched-earth litigation tactics and lies deployed by National Enquirer/LA Times attorney Kelli Sager makes me pretty sure they would do the same thing to me if they could get away with it.
But the court’s real message isn’t directed toward me. What the court did in brazen deference to the LAPD and the LA Times and in direct opposition of the law was to send a message to journalists in California: do not mess with the cops and do not mess with a newspaper owned by the cops.
If you do your jobs, we will crush you.
At a time when reporters who still get to work are grateful to merely see their salaries slashed rather than join the ranks of the unemployed, you’d have to be a total goddamned idiot to criticize law enforcement.
There is one last slim reed of hope: the California Supreme Court. I am petitioning the high court to reverse the Court of Appeal’s anti-SLAPP ruling. But the odds are long. They hear fewer than five percent of appeals.
During his confirmation hearing Supreme Court justice Brett Kavanaugh said that as a judge he wanted even the losing side to come out of the process feeling that his side had been heard and carefully considered.
I feel the opposite.
Since the start of my case it has been painfully obvious that the fix was in. As the plaintiff and as the victim of deliberate and repeated libel on behalf of one of the most corrupt police agencies in the country, I was the aggrieved party. Yet the courts treated me just like the Times did when they canned me: I was guilty until proven innocent and guilty even after having been proven innocent.
Pretzel logic has been a constant since 2015, when Beutner’s Times ran a piece about me which read that “a man and a woman can be heard speaking in the background at one point, but only a few of their words are intelligible…[they] appear to be having a conversation unrelated to the jaywalking stop.” Hey morons: if you can’t hear what they’re saying, how can you hear what they’re not saying?
The court’s ruling was no more intelligent.
The anti-SLAPP law requires judges to consider a theoretical construct at the anti-SLAPP stage of a case. Without judging the evidence, assume that the plaintiff’s case is 100% as presented, 100% accurate, all his evidence 100% true. Then assume that nothing the defense says is true. Would there be a smidge of a case there? If yes, the case moves forward.
As in many other anti-SLAPP cases, the judges didn’t even pretend to do that.
When my attorney Jeffrey Lewis mentioned that basic aspect of anti-SLAPP during oral arguments (listen here), the judges reacted as though they’d never heard such a thing before! Times lawyer Sager knew Lewis was correct which is why she didn’t touch the issue in her rebuttal. Yet the ruling in favor of the defendants didn’t mention, much less rebut the evidence rule. To the contrary: the justices ignored my arguments and evidence, assuming everything I said to be false. And they took everything the Times said, not at face value—because anyone reading the pieces could tell they were false—but beyond, crediting their goodwill beyond even what the Times alleged in its defense (for example, saying that the Times sent my enhanced audio for professional analysis, something the Times never claimed).
A couple decades ago I wrote that the court system was the last functional branch of government, the final resting place of the proposition that injustice could be addressed even when the villain was powerful. Perhaps I was right then. It certainly isn’t true now.
Any American who trusts the court system is a fool.
(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.)
Listen for yourself to the oral arguments in the most recent Ted Rall v. Los Angeles Times anti-SLAPP hearing. I’m defending myself against Dr. Pat Soon-Shiong and the LA Times’ defamation as a favor to the LAPD.
More care goes into the making of a sandwich.
That’s what I was thinking last Thursday as I watched oral arguments in the California Court of Appeals in Los Angeles.
Case after case came before a three-judge panel. They concerned a variety of matters. Hundreds of thousands of dollars, perhaps millions, were at stake. More importantly, so were hard-built professional careers and reputations. With so much that mattered hanging in the balance, you’d hope to see these cases handled with sensitivity, decorum and thoughtfulness—and you’d be sorely disappointed.
There was a real estate deal gone wrong that I would have needed to read up on in order to understand. A physician was resisting a subpoena for his patients’ records filed by the state medical board, which suspected him of overprescribing opioids. And there was me, former editorial cartoonist for The Los Angeles Times, defending myself from an “anti-SLAPP” motion that, if successful, would end my lawsuit before it began and bankrupt me with a court order for me—the victim—to pay the Times hundreds of thousands of dollars for their legal fees.
It ought to be illegal for a police department to own a newspaper. But it’s not. In 2015 the LAPD pension fund was a major shareholder of Tribune Publishing, owner of the Times. Annoyed at my cartoons about him, then-LAPD Chief Charlie Beck asked the Times then-publisher Austin Beutner, now LA schools superintendent, to fire me as a political favor. He did. Beck also wanted my reputation destroyed so I could never work again, in order to send a message to journalists: don’t mess with the LAPD. Beutner, Beck’s political ally and a man with ambitions to become mayor or governor, complied by ordering that the paper publish two libelous articles about me portraying me as a liar.
The second one was published after I proved I had told the truth.
I sued for defamation and wrongful termination in 2016.
Since then Times attorney Kelli Sager, who also represents the National Enquirer in its smear of gay icon Richard Simmons, has waged a scorched-earth litigation campaign designed to intimidate, harass and delay my quest to clear my name. Sager filed the anti-SLAPP, a law designed to be used by individuals to defend themselves against powerful corporate entities, against me. She convinced the court to force me to pay $75,000 just to be able to continue my case for something called a “Section 1030”—a law whose intent is to discriminate against out-of-state plaintiffs (I live in New York.) Last week, during oral arguments in open court, she compared me to a “pedophile.”
Last summer the lower court in L.A. ruled against me on the anti-SLAPP, saying that even though I showed that I was truthful and the Times was not, I must pay $330,000 (as of then) in legal fees to the Times. I appealed, which is why I was in court last Thursday.
We knew it was going to be tough. Shortly beforehand the court issued a “tentative opinion” that indicated the Court of Appeals planned to buy Sager’s arguments lock, stock and barrel. Those arguments were lengthy and complicated but they could be summarized as: the First Amendment allows newspapers to publish anything they want, the truth doesn’t much matter and if you slap a veneer of officialdom on libel—in this case, the Times claimed, it was merely reporting on what the LAPD said about me—it becomes “privileged,” i.e. inactionable.
My attorney Jeff Lewis emphasized several points.
First, he pointed out, the tentative opinion disregarded California anti-SLAPP case law that requires that I be given the benefit of the doubt, not the Times, when considering their anti-SLAPP motion. In Overstock.com, Inc. v. Gradient Analytics, Inc. (2007), for example, the court ruled that “the plaintiff’s burden of establishing a probability of prevailing is not high: We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant’s evidence only to determine if it defeats the plaintiff’s submission as a matter of law.” The tentative opinion was rife with references to my supposed (in)credibility and purported to evaluate the evidence presented.
The justices seemed surprised by Jeff’s argument. They asked him to cite case law examples. He did. They wrote them down.
I hope they take notice and change tack, still, anti-SLAPP motions are commonplace in California courts. How could any judge be unaware of important cases like Overstock or the standard that plaintiffs get the benefit of the doubt in anti-SLAPP?
Jeff countered the Times’ argument that they were merely passing on what the LAPD records given to them said. It matters because “fair and true” journalistic reports about government records are “privileged.” Much of the Times’ hit pieces against me concerned the Times’ own cursory sham investigation of me. One judge asked Sager whether the Times was arguing that both the LAPD and the Times’ references were privileged. Sager repeated that the LAPD ones were, repeatedly ignoring the Times question until, after being pressed, she played dumb, insulting the court’s intelligence by pretending not to understand the issue.
No one pressed her on that or on her “pedophile” remark. Whereas the judges expressed great concern for the reputation of the doctor in the previous case about overprescribing, none spoke against comparing a cartoonist to a pedophile, further slandering me.
Jeff asked why the court’s tentative ruling ignored our most important anti-SLAPP case law precedent, Wilson v. CNN. There was no clear answer. Whether it was intentional or they forgot, people have been fired from far less prestigious jobs for considerably less shoddy work.
Lewis asked the court to consider the chilling message they would send to journalists at news outlets like the Times if they ruled for the Times against me: if you criticize the LAPD, you can be destroyed even though you did nothing wrong. And you can’t sue. There is no redress. There is no justice.
We await the court’s ruling.
UPDATE: Listen to the oral arguments here:
(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.)
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.)
(Duplicate first page – keep scrolling, please.)
It’s game time! We have reached the most important stage in “Ted Rall v. Los Angeles Times et al.”
Let me explain.
From the beginning of this case attorneys have told me that the toughest barrier to clearing my name and getting my day in court would be California’s anti-SLAPP law, a statute frequently used by publications to defend themselves against defamation lawsuits.
Upon being sued a defamation defendant can file an anti-SLAPP motion. Discovery cannot begin until it is resolved. If defendant prevails, plaintiff’s case is thrown out and plaintiff pays defendent’s legal fees. If plaintiff prevails, the case begins discovery, subpoenas, etc. A lower court, the California Superior Court in Los Angeles, heard the LA Times’ anti-SLAPP motion. They ruled for the Times, awarding them $356,000 in legal fees.
But that decision is automatically appealable de novo (without consideration for what the lower court decided). So I appealed to California’s Court of Appeals.
We filed an Opening Brief. The Times filed a Reply Brief. This is our Reply Brief to their Reply. No more briefs now. Now we wait for the court to assign a hearing date. At that date or shortly thereafter, probably in early 2019, the Court of Appeals will hear oral arguments.
Although lawsuits are always long and time-consuming and stressful, most attorneys believe that a jury will side with me in this matter, rather than the Times/LAPD.
Please read the brief!
I look forward to reading your thoughts and comments. This case is important to me, but it also has sweeping implications for employment law and the freedom of journalists to operate free of censorship by government agencies and officials.
