Some Overlawyered readers may be familiar with the work of longtime New York writer Paul Brodeur, whose best known book was a critique of the asbestos industry and who went on to write books about what were in some cases less widely accepted public health risks, such as electrical transmission lines. Now an appeals court in California has dismissed a lawsuit Brodeur brought “over a scene in the 2013 film, American Hustle, where defending the notion that microwaves take the nutrition out of food, Jennifer Lawrence comments, ‘It’s not [B.S.]. I read it in an article. Look, by Paul Brodeur.'” Defendants portrayed the film as a “screwball comedy” which explicitly added fictional elements to the real-world ABSCAM scandal, and Lawrence’s character as one whose statements were portrayed as unreliable. The judge cited a number of other factors, including Brodeur’s legal status as a public figure and well-known commentator in the 1970s. [Hollywood Reporter]
Faced with a $140 million verdict from a Florida jury over its publication of a sex tape including wrestler Hulk Hogan, Gawker Media has filed for Chapter 11 bankruptcy [CNN Money] Forbes profiles a boutique law firm that with Thiel’s help has made suing Gawker its “bread and butter.” Nick Lemann notes that the “uniquely legally privileged position of the American press” dates back to the period of New York Times v. Sullivan and some other pro-press decisions, and may be up for rethinking in public opinion “at a moment when the press is far more vulnerable, economically and culturally, than it used to be.” [New Yorker] My recent posts on Gawker, Peter Thiel, and paying others to sue are here, here, and here.
There has been much coverage of the revelation that Peter Thiel has funded Hulk Hogan’s lawsuit against Gawker behind the scenes, especially following the Silicon Valley figure’s acknowledgment that he views taking down the notoriously scurrilous publisher as a public service (“one of my greater philanthropic things that I’ve done”) and has sought out and funded other litigants besides Hogan in order to make that happen. As I said in my explainer the other day, the decay of age-old rules against outsider funding of litigation (“champerty and maintenance”) is a broader trend that has left many sectors of society more exposed to the dangers of litigation, with the press just the latest.
I’m quoted by Alison Frankel in her Reuters column on this (“Our ancestors were not complete fools,” I say) and by Timothy Lee at Vox (“‘Some people following the Thiel story appear to be surprised that these weapons can be used by rich and powerful people in order to get their way,’ Olson tells me.”; also see Ezra Klein’s piece). And Lee recounts a recent episode that passed with little notice at the time:
Last year, the liberal magazine Mother Jones defeated a defamation lawsuit filed by Republican donor Frank VanderSloot. Winning the lawsuit cost Mother Jones, a relatively small nonprofit organization, and its insurance company $2.5 million in legal fees.
If VanderSloot’s goal was to punish Mother Jones for writing an accurate but unflattering story about him, a loss was almost as good as a victory. His lawsuit sought $74,999 (staying just under the $75,000 threshold that would have allowed Mother Jones to move the case to federal court and away from an Idaho jury that might have favored the hometown plaintiff). So “winning” the lawsuit cost Mother Jones 30 times as much as the amount it would have had to pay if it had lost.
What was really ominous was what happened after VanderSloot’s loss. He “announced that he was setting up a $1 million fund to pay the legal expenses of people wanting to sue Mother Jones or other members of the ‘liberal press.'”
Of journalists raising the alarm about the Thiel episode, Josh Marshall notes that unlike the usual pattern of litigation by wealthy persons against the press, in which the plaintiff must undertake some risk of reciprocal damage through discovery and bad headlines, the Thiel model allows the one in the background with the grudge to inflict hurt at little risk except financial to himself. “If Thiel’s strategy works against Gawker, it could be used by any billionaire against any media organization,” argues Felix Salmon.
Meanwhile, some other writers echo the point I made about how, once funding other people’s lawsuits for ideological reasons came to be applauded as public interest law, it was unlikely that the weapon would not be used against the full range of targets including the press. Tyler Cowen tries putting the shoe on the environmentalist foot, while Eugene Kontorovich at the Volokh Conspiracy observes that “Thiel’s conduct fits into the ‘public interest’ or ‘ideological’ litigation paradigm” and claims that “By current standards, Thiel’s funding should raise no eyebrows — unless one also wants to revisit public interest litigation, class actions and contingent fees.”
You know what? Maybe it’s time we did revisit those things, including the ideological litigation paradigm. And Andrew Grossman has a tweetstorm and exchange with Kontorovich that comes closer to capturing my own mix of feelings on the subject.
GlassDoor is a Yelp-like forum on the topic of what it’s like to work at employers, and a much-used tool for those checking on the job market. Now California law firm Layfield & Barrett and its attorney Philip Layfield have filed a suit seeking to unmask John Does who posted a dozen disobliging comments, and Layfield’s comments at Above the Law are drawing further attention to the controversy. [Timothy Geigner, TechDirt]
Sponsored by Reps. Blake Farenthold (R-Texas) and Anna Eshoo (D-Calif.), H.R. 2304, the Speak Free Act would introduce a federal procedural remedy against certain lawsuits that discourage speech. “The Act would allow a person who is SLAPPed to file a special motion to dismiss such lawsuits and collect legal fees from the person or entity that filed the initial SLAPP.” A letter from supportive groups cites the importance of not chilling reviews and feedback in the online economy. 28 states have enacted anti-SLAPP legislation in widely varying forms; “SLAPP” is originally an acronym for “Strategic Lawsuit Against Public Participation.” [Ronald Bailey, Reason; TechFreedom podcast with Evan Swarztrauber and Moriah Mensah]
- Allowing suits against Facebook, Twitter, Reddit, YouTube, et al., for comments made by users of those platforms? A perfectly horrible idea [Ken at Popehat, Robby Soave/Reason, a more judicious view of Section 230]
- Wipe that true thing: “France says Google must take ‘Right to Be Forgotten’ worldwide” [WSJ/MarketWatch, earlier]
- MedExpress vs. attorney Paul Alan Levy: “eBay seller who sued over negative feedback dinged $19k in legal fees” [ArsTechnica]
- Copyright takedown order over random ink blotches 
- Weight-loss firm Roca Labs, which took aggressive legal approach toward limiting negative commentary about its products, runs into FTC trouble [Adam Steinbaugh, Ken White at Popehat]
- “California libel retraction statute extended to cover online publications” [Eugene Volokh]
- “Florida Moving Company Attempting To Sue Its Way Back To Yelp Respectability” [Tim Cushing, TechDirt]
- Eugene Volokh weighs in again on Oregon Sweet Cakes case, agrees with my view that agency’s order against Melissa and Aaron Klein’s speech is overbroad;
- Canada: “Ruling in Twitter harassment trial could have enormous fallout for free speech” [Christie Blatchford/National Post, earlier]
- Also in Canada: Law Society of Alberta cites controversial-speech veteran Ezra Levant, a lawyer, over column criticizing human rights commission [National Post]
- “Lawyer Can’t Unmask Anonymous Critic on Avvo, Court Rules” [Robert Ambrogi]
- “Couple ordered to pay $280K for ‘frivolous’ lawsuit against Hoboken bloggers, judge says” [Jersey Journal via @NJCivilJustice]
- Las Vegas lawyer’s libel suit provokes laughs but there’s a serious point at stake [Adam Steinbaugh, Popehat]
- “Freedom will not bow to bloody attacks”: legislature in Iceland repeals blasphemy law in response to Paris massacre [IB Times] But Charlie Hebdo itself, in Paris, says it will run no more prophet Muhammad cartoons [WaPo and more: Michael Moynihan, Politico Europe]
- March of “cyberbullying” law continues: “New Zealand passes law making it punishable by fine or jail time for “causing emotional distress” on the Internet [The Register]
- Wisconsin John Doe prosecutors tapped email and text communications of conservative activists, also got bank records [M.D. Kittle, Wisconsin Watchdog]
- Rare instance where pro-speech, anti-harass groups agree: ICANN shouldn’t zap site-owner privacy [Online Abuse Prevention Initiative via @sarahjeong] More: Cathy Gellis, Popehat;
- “Researcher Headed To Australian Supreme Court In Attempt To Hold Google Responsible For Posts At Ripoff Reports” [Tim Cushing, TechDirt]
- When you vigorously deny an accusation, do you defame the accuser as a liar? [Popehat on Bill Cosby litigation]
- “They do this because they can.” [Mark Steyn on Preet Bharara’s “prosecutocracy” and the Reason subpoena, earlier here, here, etc.]
- Remember, badspeak can be evidence of wrongthink: “[London Mayor] Boris Johnson ‘could be breaching sex discrimination laws’ for defending Sir Tim Hunt over sexism row” [Independent]