Mediaboss Marketing

from the wrong-about-libel-and-wrong-about-this dept

People are finding cool new (probably illegal) ways to unmask people they want to sue. In this case, its a guy who didnt like some things said about him. But in order to get a libel lawsuit going, the plaintiff needs to have a defendant to sue. Heres where all the bad faith begins, as uncovered (and reported) by Paul Levy of Public Citizen.

Frederic Eshelman, a pharmaceutical magnate, resents being criticized by an anonymous gmail user who called him a piece of shit and urged companies to stop collaborating with Eshelman for, among other things, abusing police resources when heused his political influenceto secure the arrest and prosecution of hunters whocorner-crossed his hunting reserveto get from one bit of public land to another. To move forward a defamation claim, he would have to get a subpoena to Google enforced in a California court, and those courts have protected the First Amendment right to speak anonymously by requiring plaintiffs to present complaints that state valid defamation claims, and to present evidence in support of that claim. And Eshelmans supposed defamation claim is more than a little bit fanciful.

Fanciful is putting it kindly. Theres no valid defamation claim here, even if Eshelman manages to convince a court hes not a public figure. (Thats going to be tough to claim, since hes already made headlines at the Washington Post.) But were not even at that point yet. Eshelman wants to unmask the Doe he wants to sue, and he appears to be twisting the truth in hopes of keeping his subpoena to Google from being blocked.

So, instead of just filing a suit for defamation in his home state of North Carolina and domesticating a subpoena to Google in California, hewent straight to the federal court there, invoking28 U.S.C. 1782, a procedure enacted to enable litigants in proceedings outside the United States to obtain needed discovery from US courts. Eshelman doesnt actually have any lawsuits pending abroad his excuse for using this procedure is that, among the recipients of the critical email was a company in India (SEE UPDATE BELOW) and a company in Germany (although as far as I can tell, the company he claims is in Germany is really in California).

The update Levy has added to this post comes from Google the recipient of the questionable subpoena. Google dug around a bit on 6 Degree PRs website and discovered the CEO of the company actually lives in the Philadelphia area, which means every entity Eshelman wished to exploit to bypass the First Amendment is actually a US entity or resident. The First Amendment applies.

Eshelmans use of this loophole to bypass First Amendment scrutiny would be problematic enough if it was his idea. But it wasnt. As Levy notes, it was likely his lawyers idea.

Eshelmans counsel, from the well-known libel litigation boutiqueClare Locke, told me that he has used the section 1782 procedure several times before, always successfully.

Now, that doesnt necessarily mean every Section 1782 action filed by this firm has ultimately involved US-based entities. But it does suggest the firm has played a little loose with the facts to acquire subpoenas to unmask litigation targets.

Fortunately, this bogus attempt to unmask a critic is likely to go nowhere. Both Public Citizen [PDF] and Google [PDF] have filed motions asking the judge to quash the illicitly obtained subpoena. Both make the same point: this is bad faith litigation wholly unsupported by the known facts. This is from Public Citizens motion:

On January 13, 2023, Eshelman filed an Ex Parte Application for an Order Pursuant to 28 U.S.C. 1782 against Google LLC, seeking subpoenas to learn from Google the identity of an anonymous American citizen who criticized him in a single email. [] As grounds for the request, Eshelman purportedly intends to file two defamation actions against Doe in foreign courts, claiming that the email was sent to two international business contacts. Neither the application nor Eshelmans supporting declaration alleges that Eshelman suffered any injury to his reputation in either of the two foreign countries, Germany and India.

Googles take:

The Application appears to be an attempt to circumvent the policies of the United States. The U.S. has a policy of protecting speech and public debate under the First Amendment. See, e.g., Bigelow v. Virginia, 421 U.S. 809, 829 (1975) (The policy of the First Amendment favors dissemination of information and opinion). There is evidence demonstrating that this matter involves a U.S. citizen or resident who sent an email to U.S. recipients, implicating the First Amendment. The Anonymous Speakers statement is plainly an opinion based on disclosed facts. This statement would not be actionable in U.S. courts, evidencing an intent to evade the protections of the First Amendment.

[]

Applicant does not appear to have any basis to bring claims under Indian or German law, and he has not shown that his possible claims are actionable or that foreign proceedings are even viable. Instead, this appears to be a purely domestic dispute without a clear connection to foreign countries.

Theres basically no chance this ends up going Eshelmans way. These are shady tactics in service of a libel lawsuit Eshelman has zero chance of winning in a US court. Hopefully, the court will quash the subpoena and force Eshelman to play by the (US) rules. And, if he has to do that, hopefully hell realize moving forward with a lawsuit is only going to net him another loss. If Eshelmans smart (and theres nothing here that suggests that he is), hell quit while hes only this far behind.

Filed Under: 1st amendment, defamation, frederic eshelman, gmail, section 1782, subpoena Companies: clare locke, google

Read the rest here:
Pharma Exec Trying To Dodge First Amendment By Pretending He's ... - Techdirt

(The Daily Signal) The Senate will vote soon on thecontroversial nomination of D.C. Judge Loren AliKhan to the U.S. District Court for the District of Columbia.

The Senate Judiciary Committee voted 11-10 entirely along party lines Thursday to advance AliKhans nomination to a full Senate floor vote, despite a coalition of more than a dozen legal and policy organizations urging senators to vote against her confirmation.

During her short 11 years as a litigator, she has developed a remarkably long record of advocacy againstreligious freedom, reads a coalition letter sent to the chairman of the Senate Judiciary Committee, Sen. Dick Durbin, D-Ill.,and to Sen. Lindsay Graham, R-S.C., the panels ranking member. All of the Democrats on the committee voted in AliKhans favor, while all the Republicans opposed her confirmation.

While we recognize all attorneys must represent the best interest of their clients, each attorney is at liberty to determine which arguments to use, the letter continues. The courts have continuously rejected her discriminative arguments against people of faith and their houses of worship, and faith-based organizations.

AliKhan currently serves as an associate judge on the District of Columbia Court of Appeals and previously worked as the D.C. solicitor general.

First Liberty Institute, a nationwide legal organizationprotecting religious liberty,drafted the letter that was signed by 16 organizations, includingthe Christian Legal Society, The Heritage Foundation, The American Association of Christian Schools, the Faith & Freedom Coalition, and the Lutheran Center for Religious Liberty. (The Daily Signal is the news outlet of The Heritage Foundation.)

As a litigator, Loren AliKhan repeatedly took extreme positions in opposition to theFirst Amendments[protections] for religious organizations, houses of worships, and citizens, Hiram Sasser, executive general counsel for the First Liberty Institute, said in an email to The Daily Signal. She poses a grave threat to the religious liberty rights of all Americans. The Senate should reject her nomination.

In several cases, AliKhan has employed anti-religious liberty arguments, according to First Liberty.

In theSupreme Courtcase Hosanna-Tabor v. Equal Employment Opportunity Commission, AliKhan called on the court to strike down the ministerial exemption, which prevents government interference in the employment hiring practices of religious institutions.

According to the letter, AliKhan argued that Nothing in any right under the Religion Clauses grants religious organizations such a sweeping exception. The Supreme Court unanimously called her position untenable and hard to square with the text of the First Amendment, which gives special solicitude to the rights of religious organizations.

The most egregious example of AliKhans hostility to religious freedom, according to the coalition letter, was demonstrated by herargument that houses of worship meeting outdoors, masked and socially distanced pose a greater threat to the COVID-19 pandemic than the allowed city-wide protests.

Arguing before theD.C. District Court, AliKhan, according to the letter, chose not to bring in a medical expert to support her claims, instead she brought in a Ph.D. in Poli-Science. He asserted that the risk of spreading COVID-19 is higher for events where people are standing (for a church service) than where they are moving (for a protest).

Alikhan-Coalitons-Letter-Download

The Senate is expected to vote on AliKhans nomination later this month.

See the original post:
Religious freedom coalition urges Senate to reject judge nominee ... - The Lion

Estimated read time: 4-5 minutes

SALT LAKE CITY The city of St. George must issue a permit for a Utah-based group that organizes drag performances to host an all-ages drag show in a public park, a federal judge ruled, calling the city's attempt to stop the show unconstitutional discrimination.

"Public spaces are public spaces. Public spaces are not private spaces. Public spaces are not majority spaces," U.S. District Judge David Nuffer wrote in a Friday ruling granting the preliminary injunction requested by the group. "The First Amendment of the United States Constitution ensures that all citizens, popular or not, majority or minority, conventional or unconventional, have access to public spaces for public expression."

Southern Utah Drag Stars and its CEO, Mitski Avalx, sued the city of St. George in May after the city denied the group permits for an all-ages show it aimed to host in a public park in April. A complaint filed in federal court accused city officials of "flagrant and ongoing violations of their free speech, due process, and equal protection rights," and asked for St. George to reverse its decision and authorize a drag show at the end of June.

A city events coordinator told Drag Stars, Avalx said, that the group could start advertising for the April show before obtaining a permit. The city council later denied the permit, citing a never-previously-enforced ordinance that forbids advertising before permit approval.

The permit denial based on that ordinance, Nuffer wrote in his ruling, was a pretext for discrimination.

"Public officials take an oath to 'support, obey, and defend the Constitution of the United States and the Constitution of the State of Utah,'" Nuffer wrote. "They do not merely serve the citizens who elect them, the majority of citizens in the community, or a vocal minority in the community."

The city now may not enforce any new advertising prohibitions against the group or its show, Nuffer ruled, ordering that the performance must "take scheduling precedence over any other event."

In a statement, the city of St. George said it is committed to ensuring public parks and facilities remain viable and open to residents and those who want to hold special events.

"Our intent is always to follow the law both when we enact laws and when we enforce laws, and we will continue to do so," the statement said. "We have read Judge Nuffer's opinion and while we are disappointed in the result, we are currently evaluating our options in light of the ruling."

The lawsuit marked the most recent development in a fight over drag shows in St. George. Since HBO filmed a drag show in a public park last year for an episode of its series "We're Here," the city has emerged as a flashpoint in the nationwide battle over drag performances as they've garnered newfound political scrutiny in Republican-controlled cities and states.

Public events like drag queen story hours and the all-ages event that Avalx intended to put together have been increasingly targeted in legislatures throughout the country. In May, Florida Gov. Ron DeSantis signed a ban on minors attending drag shows, and Montana Gov. Greg Gianforte signed a ban on people dressed in drag from reading books to children at public schools and libraries.

In Utah, a proposal from a St. George Republican to require warning notices for events like drag shows or pride parades in public places stalled after advancing through the state House of Representatives in March. The proposal stemmed from the pushback that resulted from the HBO-produced drag show in St. George.

City officials issued permits for the show over objections from some council members and community activists. City Manager Adam Lenhard resigned months later after writing councilmembers to say that he could not legally deny the show permits, according to emails obtained by The Salt Lake Tribune.

Avalx founded Southern Utah Drag Stars after the fallout, hoping to showcase drag for members of the LGBTQ+ community in a rural place where such forms of entertainment are often lacking.

"I made it my mission to continue to do these events and not just one month out of the year, but to do so people that were like me when I was little ... can see that there are queer adults that get to live a long and fulfilled life," Avalx said in an interview with The Associated Press. "My biggest ambition was to provide a public space where people can go to a park and enjoy a show that's meant for everyone."

Link:
A Utah city violated the First Amendment in denying a drag show permit, judge rules - KSL.com

OPINION:

Freedom for me and none for thee has moved from a mere mantra to a disquieting, freedom-shattering reality in some sectors, with many citizens and government officials flagrantly forgetting the reality that liberty and justice are truly for all.

Arrests and court battles around the globe showcase what happens when people mistakenly assume their beliefs and whims are Gospel truths and, as a result, engage in attempts to snuff out the opposition and impede rivals freedom, speech and human rights.

Lets briefly look at three arrests and legal battles that should have Christians on edge, engaged, and fighting for the continuance of their rights:

Christian street preacher handcuffed, detained

A man who attended a recent Pride rally in Reading, Pennsylvania, found himself arrested after joining those protesting the event.

Damon Atkins was handcuffed, arrested and charged with criminal disorderly conduct, with footage of the incident quickly making the rounds. Mr. Atkins offense? He was apparently shouting Bible verses. And according to the video, he recited a Scripture 1 Corinthians 14:33 after a police officer told him to be quiet.

SEE ALSO: British pro-life advocate again arrested for thoughtcrime of silent prayer near abortion clinic

Im not being rude, Im just here to spread the Gospel of good news. Jesus Christ saved me and he can save everyone, including you, Mr. Atkins said, directly addressing the officer in question.

At first, the story seemed unbelievable: a street preacher detained for refusing to stop speaking and sharing his biblical beliefs? I assumed there was more to the story some sort of threat or illegal action aside from mere protest or reciting Scripture but the district attorney in Berks County, Pennsylvania, ended up dropping the charges.

From what I have seen thus far, I believe this was an unlawful arrest and could open the city of Reading and their police department to legal action, County Commissioner Christian Leinbachsaidafter the incident.

The Berks County District Attorneys Officeadded: After review of the video of the incident, including body-worn cameras, and a review of the case law, we did not believe we could prove a criminal case of disorderly conduct.

The shocking ordeal makes one wonder what would have happened if someone didnt catch the bizarre interaction and arrest on video.

Woman arrested after praying silently

Meanwhile, across the pond, theres a bizarre British case about a woman who has been detained twice while praying silently in her head outside of an abortion clinic.

Isabel Vaughan-Spruces troubling case made headlines this year after a video showed police asking why she was silently speaking to the Lord outside of a clinic.

The legal conundrum started in December when Ms. Vaughan-Spruce, director of the U.K. March For Life, was detained in Birmingham, England, while presumably uttering prayer on a public street near the clinic.

In footage of the incident, Ms. Vaughan-Spruce tells a police officer she might be praying in her head it but isnt in protest; then, he arrests her.

Charges were later dropped, but she was arrested just weeks later for the same offense.

She is continuing to fight for clarity surrounding her right to silent prayer within the vicinity of abortion clinics. Ms. Vaughan-Spruce and others are also challenging and questioningPublic Space Protection Orders, regulations implemented at the local level to create buffer zones around clinics where pro-life protesters are unwelcome.

Ex-gay Maltese man faces charges over sharing his testimony

Finally, theres a deeply troublinglegal case unfolding in Malta believed to be the first of its kind anywhere. It surrounds ex-LGBTQ activist Matthew Grech, who is on trial after sharing his story of embracing Jesus.

Mr. Grech told me this year that he came under fire after sharing his story on a local Maltese outlet, as the nation has cracked down on conversion therapy. Thus, when he shared his journey of choosing Christianity over his former life, it led to legal problems.

Despite criticizing Maltas laws on conversion therapy and sharing his personal quest to change his actions, Mr. Grechs interview didnt appear to advertise conversion therapy.

Police give me a call, and they say Three people reported you to the police and reported the presenters as well because theyre claiming that you breached Maltese law, which says that you cannot advertise so-called conversion practices, Mr. Grechtold me. And so I turned up to the police station with my lawyer. We exercised our right to be silent.

Now, Mr. Grech, whose court case started this month,could facemassive fines and even five months in prison.

Each of these cases presents deeply troubling scenarios and ramifications unbefitting of any free and democratic society. Regardless of where one stands on LGBTQ issues, faith or the individuals actions, these cases, though anecdotal, point to a terrifying pattern of abuse and disregard for free speech and expression and, frankly, legal sanity.

With culture continuing to shape-shift in such profound ways, discerning Christians would be smart to pay attention to these cases, speak up boldly and work to peacefully ensure Fthat irst Amendment rights are upheld.

These cases show the dire consequences that can come when we abdicate this responsibility.

Billy Hallowell is a digital TV host and interviewer for Faithwire and CBN News and the co-host of CBNs Quick Start Podcast. He is the author of four books.

Go here to see the original:
Christians must work to ensure First Amendment rights stay protected - Washington Times

from the but-it-won't-stop-people-from-thinking-you're-racist-assholes dept

The First Amendment protects speech, even the horrible stuff. It cant protect the speaker from being criticized for being abhorrent, despite what many abhorrent people believe. It can, however, in certain cases, protect the speaker from being punished for this speech.

Its not blanket coverage. The person engaging in the speech generally has to be punished by a government entity for this protection to kick in. A private company can fire someone for their speech without worrying too much about the Constitution. But a state entity needs to be far more careful, even when its dealing with its own employees.

The added wrinkle is the First Amendment limitations placed on government employees. Most speech is protected, but speech made while acting as a government employee via their official duties is less protected than speech made off the clock as just a regular, non-government person.

All of that factors into this recent decision [PDF] by the Third Circuit Appeals Court. (h/t Eric Goldman)

At the center of this lawsuit are a bunch of Philadelphia cops who decided to be terrible online. In 2019, accountability activists Plain View Project outed several disturbing social media posts linked to these officers (as well as those made by officers from other major police departments). In response, the Philadelphia police commissioner stated that 13 officers would be fired for their posts, which contained invective targeting several protected groups.

The posts were described by the District Court as having spanned a multitude of topics such as protestors and their treatment, the use of violence against child molesters, Islam and its followers, refugees, police brutality, and much more. However, the posts also ridiculed and belittled members from the LGTBQ community, reportedly using individuals who are transgender as punch lines in their jokes, or worse, threatened violence against them African Americans, Muslims, Mexicans, and foreign refugees were not spared as Plaintiffs played racist bingo, mocking as many ethnic or religious groups as possible.

In short, garbage people saying garbage things online. But these people were cops, who are expected to hold themselves to a higher standard. Their employer, the Philadelphia police department, obviously felt these posts went too far. 72 officers were investigated. The twelve officers bringing this lawsuit were punished to some extent for violating the PPDs social media policy, which said employees were prohibited from using ethnic slurs, personal insults, obscenities, or engaging in harassment, defamation, or fraud.

This governed use of social media while in uniform and on the clock. The policy also noted that personal use of social media services by employees would be scrutinized to ensure these rules were followed.

The 12 disciplined officers sued, claiming the policy was unconstitutional and that their discipline was illegal First Amendment retaliation.

The Appeals Court (mostly) agrees.

The Constitutional guarantee of free expression is a pillar of our democracy, and yet, it can be bitter medicine particularly when prescribed in defense of social medias more antisocial viewpoints.

[]

This Court does not condone the Appellant officers use of social media to mock, disparage, and threaten the very communities that they are sworn to protect. While we do not opine on the merits of their suit, our rules of procedure dictate that the Appellant officers have stated a claim of First Amendment retaliation at this juncture.

Thats the thing about the First Amendment. In order for it to provide protection for the best of us, it also has to protect the worst of us. People who never utter anything hateful rarely need to worry about the government stepping on their free speech rights. Horrific criminals sometimes generate the best Fourth and Fifth Amendment case law. Bigoted assholes are, unfortunately, necessary to the establishment of solid First Amendment precedent.

But it wont protect these officers from further criticism and condemnation from the general public. So, while this lawsuit can proceed, theres no reason we cant use this decision to link these officers names to their hateful social media posts. All of the following are taken directly from the decision:

Officer Christian Fencio (terminated):

In a response to a 2015 shared post describing refugees rejecting a food delivery because it bore a Red Cross logo, Fencio commented, Good, let them starve. I hate every last one of them. In a 2013 post, Fencio commented, Should have shot him, on an article detailing a theft in Missouri.

Officer Thomas Young (suspended, allowed to retire in lieu of termination):

In a post from 2015, Young commented on a shared YouTube link titled, Migrant Workers are Thrown Over Motorway Barrier by Police. Young replied, They should gather them up and send them back where they came from.

Officer Thomas Gack (restricted duty, termination):

In one 2015 post, Gack shared a meme depicting a box of shotgun shells edited to read, ISIS LOAD, 00 BUCK & BACON BITS. [] In another post, Gack mocked female politicians. One of Gacks 2013 posts highlighted in Plain View reflects the comment Ha ha ha in response to another post mocking families with incarcerated fathers.

Officer Edward McCammitt (suspended, retired):

In 2017, McCammitt shared a picture of an officer spraying a protester with mace with the caption, PARTICIPATION TROPHIES NOW IN LIQUID FORM! In a 2017 post, he shared a picture of a bumper detached from a vehicle, with the caption, THIS BUMPER WILL TAKE AN ANIMAL HIT AT 65 MPH OR A PROTESTER, WHATEVER. One of McCammitts posts from 2015 says, Like and share If you support the Confederate flag.

Officer Tanya Grandizo (placed on restricted duty, still employed by the PPD):

[S]he reposted a list of all the reasons why Muslims cannot be good American[s], which concluded, Therefore, after much study and deliberation, perhaps we should be suspicious of ALL MUSLIMS in this country, because they cannot and will not integrate into the great melting pot of America.

Officer Anthony Anzideo (restricted duty, still employed by the PPD):

Anzideo shared a USATODAY.COM news article from 2015 reading 9 Dead in shooting at black church in Charleston, S.C., to which Anzideo added the caption, This is horrible..Hope they track this POS down and take him out. In 2016, in response to a news article he posted from 6ABC.COM titled Woman Shot and Killed in Lower Salford; 2nd Victim Shot in Lansdale, Anzideo responded POStake him out.

Officer Anthony Acquaviva (placed on Giglio List, terminated):

In 2015, Acquaviva shared a post on Facebook from a fellow Officer in this action, Joseph Przepiorka, depicting a man with a beard overlaid with the text reading, ALL I WANT TO DO IS MOVE TO YOUR COUNTRY, RAPE YOUR WOMEN, BOMB YOUR BUSES, RIOT IN YOUR STREETS AND DEMAND THAT YOU ACCEPT MY RELIGION. WHY CANT YOU BE MORE TOLERANT? In 2015, Acquaviva shared another post with the graphic of the United States overlaid with the text FUCK OFF WERE FULL. In a 2016 post, Acquaviva shared an image of generic police officers with the text, SHARE IF YOU THINK IT SHOULD BE LEGAL . . . TO THROAT PUNCH A CIVILIAN THAT SPITS ON A MAN IN UNIFORM.

Officer Kristine Amato (suspended 30 days, still employed by the PPD):

Responding to a 2017 post by Appellant Przepiorka about an article titled YouTube fight video shows what not to do when the cops come, Amato commented Shes a racist reporter plain and simple. she not only took a swing at the cop but also continued to resist and strike the officer In 2017, Amato responded to a video shared by another titled Tulsa Officer Uses Car To Run Down Armed Suspect, with the comment, Awesome.. hopefully the wheels went over her scumbag ass.

Officer Joseph Przepiorka (suspended, retired):

One of Przepiorkas posts from 2017 depicted a skeleton draped in the American flag and touting an automatic weapon with the words, DEATH TO ISLAM at the top. [] Przepiorka shared a picture of professional wrestler Steve Austin emblazoned with the confederate flag and the text, Give Me A Hell Yeah FOR TRUMP. In another post, he shared a picture of a white cap embroidered with the words, MAKE AMERICA NOT A BUNCH OF CUNTS OFFENDED BY EVERYTHING AGAIN.

Officer William Bowdren (placed on Giglio List, removed from Gun Violence Task Force, still employed by the PPD):

[B]owdren commented, Vroom Vroom on an article [] titled Tennessee Passes Bill Allowing People To Hit Protestors Blocking Roads. In 2017, Bowdren shared an article from 6ABC.COM titled Mother and boyfriend both charged in teens murder, to which he added the caption, These animals need to be tortured and mutilated in a public square.

Officer Raphael McGough (received letter of reprimand, still employed by the PPD):

In 2017, McGough shared an article titled, UPDATING: In Progress Antifa Marching To Confront Patriots Decide To Take On Police, on which McGough commented, [a]nd we know who the liberal scum are rooting for. In another post, McGough commented, You reap what you sow, in response to an article on BREITBART.COM with the title Baltimore Residents Blaming Murder Increase on Lack of Police After BLM Protestors Demanded Pullback.

Officer Francis Sheridan (threatened with a reprimand, still employed by the PPD):

Sheridan responded to anothers shared link bearing the text CHILD RAPIST RAPED and a graphic photo with Thank God for Prison Justice! In the 2017 comment, Sheridan responded to a news link captioned A teenager arrested for raping a baby will avoid prison, with the comment, If this is a true story, these assholes need to be exterminated!

So, its mostly just the sort of thing you expect to see on Facebook. Except its cops, rather than just regular people. This speech is protected, even if it violates the ethics policies of the police department. As the court sees it, theres enough of a whiff of retaliation to allow the lawsuit to continue. It doesnt necessarily mean these cops (current and former) are on their way to victory. It just means the First Amendment likely protects this sort of commentary (as awful as it is), even when its made by people who should definitely know better.

Filed Under: 1st amendment, 3rd circuit, bigotry, philadelphia pd, police, social media

Link:
Third Circuit Says First Amendment Protects Cops Who Want To Be ... - Techdirt