July 5th, 2018

Are Democrats Losing the First Amendment?

If Democrats aren’t careful they risk surrendering a core American value to conservatives.

I don’t usually write about partisan politics, because if I did I would never stop, but in this case it deals with the First Amendment.

By way of background, it seems that liberals lost the use of the American flag as conservatives appropriated it as their own. This, no doubt, began in the 1960s when antiwar protesters started burning it. Liberals have struggled to recover.

Stephen Colbert built an entire satiric show around the concept that waving the flag somehow meant that you were patriotic — while ignoring the values that the flag stands for.

A similar battle is now taking place regarding another potent American symbol, the national anthem.

We may now be seeing yet another version with a battle over the First Amendment. The New York Times decided, in a fit of epic stupidity, to highlight that right wing nut job conspiracy theory propagator Alex Jones hired noted First Amendment attorneys Marc Randazza and Jay Wolman to defend him in a defamation suit from the parents of Sandy Hook massacre victims. Crackpot Jones claimed the massacre was a hoax.

This is what we lawyers like to call in legalese, logical. Because if you have a First Amendment problem you’re not going to hire a matrimonial or real estate attorney. When I was sued for defamation the first time, in the infamous Rakofsky case, I was part of a large group of lawyers who hired Randazza. There was a damn good reason for it.

But no, the Times decided to highlight the fact that Randazza also represents a Nazi in one of his other First Amendment defenses. Note to the Times, which should know better: If you’re going to represent free speech issues you are not likely to be representing the late Mr. Rogers and his neighborhood. You will sometimes defend people out on the fringes of society, many of whom are widely detested. Benign language that the majority loves isn’t where free speech battles are fought.

This article was a follow-up to an Adam Liptak article in the Times about the First Amendment being “weaponized” by the right.

Lets be clear: The First Amendment is not an issue of the left or the right, as all people benefit from its protections. Those who defend the First Amendment firmly believe that an infringement upon it is an infringement upon everybody’s rights, regardless of whether you come from the left or the right. Lawyers that defend free speech are not really defending the speaker. They’re defending the constitution.

This is not to say that the Democrats are the only fools in this battle over American symbols. The Republicans, for example, have lost the Statue of Liberty as they elevate bigotry over the statue’s central message. Why it is that Democrats have not created a flag with the torch of liberty to constantly wave remains a mystery to me. This will haunt the GOP for decades to come. That issue was a gift to Democrats, just as surely as the burning of American flags was an inadvertent gift to Republicans.

And so, dear New York Times, don’t be so quick to make the First Amendment a battleground of partisanship, the way it has for the flag, anthem and statue. It will not end well for those who believe in free speech. And that doesn’t just mean not ending well for you as a major media outlet, but for all Americans.

January 13th, 2015

Roca Labs, Snake Oil and Randazza

I’m on a roll lately writing about idiotic defamation cases, so I might as well do one more. I’ve ignored this one until now. And no, this isn’t about me.

It’s about irreverent First Amendment badass Marc Randazza being sued by Roca Labs.

Who/what is Roca Labs? It makes a weight loss product. And you know what that means?

It means that some folks will call it bunkum, tommyrot and malarkey, say it’s snake oil, and challenge its effectiveness. The owners will undoubtably be called frauds, con men, quacks, hustlers and charlatans, and some may even call them bad names. And that’s before knowing anything else about the product or the people peddling it.

When you combine weight loss potions, tonics, goos, mixtures and other concoctions with free speech, that kind of thing is to be expected.

Yes, my friends, I’ve whipped out that thesaurus again and I’m trying to make good use of it.

Where was I? Oh yes, snake oil. Even Dr. Oz is not immune from such attacks for pitching weight loss products. Just Google Dr. Oz snake oil weight loss and see what you get.

And so it happened that someone gave a negative review of the Roca Labs product on a gripe site called PissedConsumer. I know, I know, you are shocked! Shocked! That such a thing would happen.

But rather than take it in stride, or correct any possible mistakes, the company foolishly brought a lawsuit trying to rid the site of the bad review. The company claimed that, in exchange for a “discount,” buyers of the product agree not to make disparaging comments about it, and that this was “tortious interference.”

So they sued PissedConsumer, despite the fact it is immune from suit under Section 230 of the Communications Decency Act, which protects websites (mine included) from being accountable for the comments that are left on them.

Randazza came in to defend in his own inimitable and very colorful way.

Do I have to tell you what happened next, dear reader? Now people who had no idea that PissedConsumer or this review even existed learned about it.

When Randazza — my attorney in the Rakofsky v. Internet suit — wrote about it, Roca asked him to please stop. As you might guess, asking a First Amendment lawyer to surrender his own First Amendment rights gave Randazza a chuckle. He published the Roca missive.

And then, having not humiliated themselves enough by bringing the first suit, and by trying to get Randazza to surrender his own rights, they decided it would be wise to then sue Randazza. Really, you can’t make this stuff up.

I went through the Complaint looking for the reason for the suit — that is to say, some actual words that Randazza used that are false facts and, therefore, might be defamatory. Because that is what you need in a defamation case, false facts. Being mocked and ridiculed, it may surprise you, won’t cut it in a free speech society.

What I found was them quoting a satiric Halloween tweet from Randazza:

“Some fucker put Roca Labs’ shit in my kids candy bag!”

It took them 38 paragraphs to actually get to this. And from there went on to cite Techdirt and BoingBoing articles that Randazza didn’t write that ripped on Roca. The complaint also cites to portions of briefs Randazza wrote, which I thought was downright silly since there is a litigation privilege with respect to such legal filings. That means you can’t bring a defamation action over them. (See analysis by Adam Steinbaugh)

If there is a cognizable claim in Roca’s papers, I sure can’t find it.

This suit is destined for the trash heap of history. And you know why I know this? Because so much of this complaint is filled with crap. If you want to be amused, look at paragraph 80 where Randazza is “accused” of mocking the Roca Labs legal team.

By putting this in the Complaint Roca has shown that they don’t need Randazza to horsewhip them; they do just fine with self-flagellation.

They also spend some time discussing some of Randazza’s other First Amendment clients, including various pornographers. Apparently, giving legal counsel to those that need it is frowned upon by Roca. Go figure.

Over at Popehat, Ken White notes about the Complaint in a post titled Roca Labs, Lacking A Hornet Nest Into Which It Could Stick Its Dick, Has Sued Marc Randazza, that:

Roca Labs complains that Randazza’s purpose is to “mock, ridicule, humiliate, harm, and continue his war against ROCA,” but that’s not very specific. Roca Labs complains about statements in articles by TechDirt and tries to attribute them to Randazza, but doesn’t explain exactly what Randazza said and exactly how it was wrong. That lack of specificity is probably deliberate — if Roca Labs admitted they were mad over the term “snake oil,” they’d have to confront the fact that the phrase is obviously protected opinion. See, e.g., Phantom Touring v. Affiliated Publ’ns, 953 F.2d 724, 728, 730–31 (1st Cir.1992) (holding that description of theatre production as “a rip-off, a fraud, a scandal, a snake-oil job” was no more than “rhetorical hyperbole”).

Many others have now written about this, I’ve provided some links below, and you can Google “Roca and Randazza” to get more. That might not be as sexy as Bogey and Bacall, but it’s certainly amusing.

While others have written about this, and I hate to do “me too” postings, I write anyway because I think it’s important that when people sue with the intent of silencing their critics, that others take note and expose the attempted censure. And I think that silencing the criticisms is exactly what was intended.

This, by the way, just scratches the surface on much of the weirdness, threats and lawsuits that are going on.

Elsewhere:

Roca Labs Sues Opposing Lawyer, Marc Randazza, Because Of What We Wrote On Techdirt (Techdirt, one of 17 stories it has on this weirdness)

Roca Labs Sues Marc Randazza For Defamation (Adam Steinbaugh)

A Case That Will Want to Make You Gag (Above the Law)

Weight loss firm demands $1 million from website hosting negative reviews (Ars Technica)

December 29th, 2014

The WSJ Rips Me Off — Now What? (An Open Letter)

To the editor:

This past weekend in the Notable and Quotable area of your editorial section, you copied a long excerpt from a recent posting I made here. It was about Google Cars eviscerating the personal injury bar due to my expectations of improved safety.

I was struck with several different reactions:

1. It was nice of you to notice the piece. I’m both Notable and Quotable in the WSJ. I wish my family felt that way. Aww shucks, and all that.

2. My, oh my, you certainly copied a big chunk of my piece, didn’t you? A word count shows you took 44% of my post. That sure is a lot given our copyright laws, isn’t it?

3. Didn’t you think it might be worthwhile in the online version to supply a link so that readers would understand that my posting was a celebration of the diminution of my business, and not a complaint?

4. Most importantly, don’t folks rip off your content all the time? And don’t you complain? What kind of example are you setting for others?

It’s this last point that I want to dwell on — though I think your selective editing on #3 is pretty important — because it seems that such wanton copying only encourages others to do the same. This is part of that whole moronic “content wants to be free” claptrap that is prattled by those who’ve never created anything.

Now you might think, hey, we can just take your words under the “fair use” doctrine! But 1st Amendment guru Marc Randazza seems to say otherwise, and he isn’t particularly kind to you in doing so. Randazza writes,

As someone who blogs, it bugs me when other people steal my work and re-post it on their own blogs. It bothers me even if they provide a link back. Why? Because fuck you. This is my work. If you want to quote part of it, you’re most welcome. You feel like you need to do a large block quote? Go ahead. You hate it and want to ridicule it? Go ahead. You think I’m awesome? You must be sick.

What I’m getting at is fair use is fine, but just ripping off my shit is douchetastic.

Yeah, he’s colorful. But that lede is also followed by him understanding the gist of the piece, as opposed to your selective edits to take it out of context:

The theme of Eric’s article is that self-driving cars may cut down on accidents, insurance rates, deaths, etc., and he actually states that he cheers the thought that he might be put out of business.

Interestingly enough, the Wall Street Journal cuts off its plagiarism right before Eric makes that point. Instead, the WSJ dishonestly makes it look like Eric is whining that he won’t have as much work.

Ok, being quoted out of context? That’s all part of speaking in public. Some douchebag will always do that.

Like me, Randazza — who was my counsel in Rakofsky v. Internet — understands that quoting out of context isn’t the real problem. We both write in public and when we do so we put on our big-boy pants and deal with it.

No, the real problem is theft. You weren’t commenting on what I wrote, the way Jacob Gershman did in his WSJ Law Blog post. You simply cut and pasted my work onto your editorial page without asking.

Randazza goes on to the far more important fair use (or lack thereof) argument, one that should be second nature to you and your lawyers at the WSJ:

But what really bothered me about this is how the WSJ simply stole Eric’s work, and couldn’t be bothered to actually do any of its own — except putting the plagiarized portion next to some ads. They put it in the print version too.

And that is not fair use. It is even more ironic and douchey when you know that Eric’s work is on the WSJ [website], but behind a paywall.

I know that the WSJ must have lawyers on staff. I can’t imagine why they never learned anything about fair use. Because this is not fair use.

If you want the details, and the law of how you screwed this up, because your lawyers may be on vacation this time of year, go read Randazza’s full piece. He’s even kind enough to cite case law for you. I’ll give you a hint though — and this comes from a guy who defends this stuff all the time –he’s pretty clear you fouled up:

Ultimately, the WSJ blew it here because they didn’t add anything to the original — they just lifted it and reposted it.

So now what do you do?

Well, here’s my suggestion: You write me a nice note that says, “Oops! I can’t believe we just took so much of your property and reprinted it without asking! We really shouldn’t have done that.”

And you also say that you shouldn’t have made it look, on your index page, as if I submitted it to you in this fashion, as seen in the graphic to the left, since I played no part in its appearance there. And that if you were going to edit my piece to imply something different, then a link should have been provided so that your readers could see full context.

Then you say, “What can we do to make this up to you!?”

And I say, because I’m a nice guy and willing to give you the answer in advance in case you are worried about lawsuits, “You owe me a beer and we’ll call it even.”

Why would I let you off the hook so easily? Because I have bigger concerns than the 12 rupees you might owe me for swiping my stuff without permission, that concern being your implicit endorsement of such practices.

Because that endorsement hurts all writers, both you and me together. (I know, it’s gotta suck for some at the WSJ to be in agreement with a personal injury attorney.)

And you say to me, “Wow, we’ve never received such a nice lawyer letter before! And your suggestion that we admit an error sounds perfectly reasonable, because if we don’t admit it was an error, others that copy our stuff might possibly throw this little theft back at us one day as a defense, ‘Hey, if youse guys at da Journal can steal 44% of that idiot-lawyer-blogger’s content, why can’t we just take 44% from youse, huh?’ ”

You’ve probably never been offered such a good deal, that being the actual, real-world benefits of saying “oops.”

Now I know that you probably get pitched a bazillion times a day from kings and queens, presidents and prime ministers and all manner of CEOs and genuflecting flacks trying to use your paper as a forum for their brilliant thoughts and ideas. You might simply have thought I’d be grateful to have my words appear in your august periodical in its widely read editorial area, even if you didn’t ask me and you selectively neutered out the main point.

But what you did was wrong from a much broader and fundamental point than a simple copyright violation of my little blog. You violated the ancient Golden Rule: If you steal from others then you can’t complain when others steal from you.

I await your oops letter. And my cold beer. It’s for your own good.

Your new bestest, BFF and beer drinking buddy,

/s/ E.T.

Updated P.S. – I should have also noted, when writing this story, that you are in good company. Both the Daily News and the New York Times have likewise ripped me off, with the details at those links.

September 20th, 2012

Is Kyle Prall an Extortionist?

Kyle Prall, founder of bustedmugshots.com, is seen in an undated police booking photo from the McLean County Sheriff's Department. Prall's website collects publicly accessible police booking photos and displays them. People who find their mug shots displayed on Prall's website, or others like it, can have the pictures removed for what they refer to as a "nominal fee." REUTERS/McLean County Sheriff's Office/Handout

Earlier this year the legal blogosphere saw a disturbing act, when First Amendment attorney Marc Randazza was the subject of abuse. A woman, that he declined to represent, bought URLs with his name, and those of his wife and child, and sought to destroy his Google reputation with her search engine friendly rantings. Then she offered to pull the postings down for a fee.

Bloggers ripped her up, down and sideways for her conduct, amid claims that this was extortion.

But she is not alone, it appears, in this type of racket. Enter, stage right, Kyle Prall, from Travis County Texas.

Kyle Prall doesn’t dwell in the sewer of creating content and then pretending to be in the “reputation management” business of offering it to be removed, but he is darned close.

His modus operandi is to get mug shots from those that are arrested, put them on the BustedMugshots.com, and index them with the name, town and state of the arrest. In other words, in a very SEO-friendly manner to make sure that anyone Googling the person’s name will find the picture.

Never mind that a mug shot isn’t a conviction of anything. You really think he cares? This is about reputation destruction.

Then he offers to remove the information for a fee. Reputation management, at your service. So what if he played a huge part in destroying that reputation?

From Reuters today comes the story and the, ahem, fees, for having him help you recover your internet reputation by taking down the mug shot and arrest information that he put up. The subject is Janet LaBarba, one of Kyle Prall’s victims:

LaBarba paid what the site describes as “nominal” fees – $68 per photo for service within 10 business days, $108 within 24 hours – to make the photos disappear. An Internet search of her name now leads to genial photos of LaBarba pictured with lots of friends.

I’m not a criminal defense guy, so I won’t give definitions of extortion. But I do wonder what others have to say on it, because it sure looks extortionate to me.

More importantly, perhaps, I wonder what Kyle Prall tells his family and friends what he does for a living. Does he tell them that he deliberately tries to hurt others so that he hopes to profit from the pain he induces?

When the book of his life is ultimately written, what will he say that he did for society? Who did he help? What did he create? What is his legacy?

What will his tombstone say?

Marc Randazza: Super Lawyer, Super Blogger?

The Marc Randazza Round-Up

Every once in awhile it happens that a bunch of people start to appreciate something, or someone, that was sitting under their noses the whole time. It seems that this week that someone or something is First Amendment lawyer Marc Randazza.

I’ve written before about Marc Randazza, since he is my lawyer in the Rakofsky matter. While I don’t always share his political views, and wouldn’t necessarily want him to use his profanity around my kids, I have nothing but the highest praise for his defense of the First Amendment. That’s why I hired him.

This is someone that clearly believes that the answer to speech with which we disagree is more speech. And that was his logic in defending in a piece on CNN…wait for it…. Rush Limbaugh for his “slut” comments.

And so, without further ado, a Marc Randazza Round-Up! Because I love alliteration. And he earned it. Here are some of the finer pieces that have spilt across keyboards lately regarding Marc Randazza:

Marc Randazza: First Amendment Badass (Popehat)

Marc Randazza, Hero (Simple Justice)

Marc Randazza: 1st Amendment Lawyer Exemplar (An Associate’s Mind)

Marc Randazza would support me, right? (Defrosting Cold Cases)

The Time I Unleashed Marc Randazza on the ABA (Corporate Tool)

Regarding Marc Randazza (Sam Devol)

Marc Randazza, First Amendment Lawyer, on the Rush Limbaugh Fiasco (Crime and Federalism)

Marc Randazza: The Mark of Excellence (Declarations and Exclusions)

Marc Randazza: Why I Went To Law School (Philly Law Blog)

Keep Your Eye on the Prize: Advice for Solos & All Lawyers from Marc Randazza (My Shingle)