The Latest in the SLAPP Wars

Recent decisions have created a wrinkle in the procedural issues related to anti-SLAPP laws. As we discussed in April, the DC Circuit created a split in the circuits when it departed from the general holding that anti-SLAPP statutes could be used in diversity cases applying state law. In Abbas v. Foreign Policy Group, LLC, the DC Circuit Court of Appeals held “a federal court exercising diversity jurisdiction may not apply the D.C. Anti-SLAPP Act’s special motion to dismiss provision” and that federal courts must follow the Federal Rules.

Conversely, the plaintiff in Diamond Ranch Academy, Inc. v. Filer made the same procedural argument to no avail to a federal court in Utah which held the California Anti-SLAPP Statute was applicable to a diversity defamation action. Diamond Ranch Academy, Inc. (“DRA”), a youth rehab center in Utah, brought suit against Chelsea Filer, a California resident and outspoken critic of such treatment centers — having attend one as a minor. Filer started a website called www.drasurvivors.com and, according to the plaintiff’s complaint, “made defamatory statements about DRA on Facebook pages, blogs, and other media, both in writing and orally.” This ongoing discord in the Federal Judiciary evidences the need for Federal Anti-SLAPP law, such as the SPEAK FREE Act currently proposed in Congress. Since its introduction, the SPEAK FREE Act has garnered widespread support.

This push-and-pull is also happening in various state legislatures. The debate-taking place in Nevada exemplifies the different perspectives. In 2013, the Nevada legislature expanded its anti-SLAPP statute to protect any communications “made in direct connection with an issue of public interest in a place open to the public of in a public forum” creating a special motion to dismiss meritless claims against free speech awarding court costs, attorney’s fees, and a possible penalty if the motion is granted. While the new law attracted media and technology firms, it drew criticism from certain business owners who complained that the bar for bringing a well-founded defamation case was too high. In March of this year, a group led by Wynn Resorts introduced Bill 444 to roll back the measures in Nevada’s Anti-SLAPP statute. Bill 444 swiftly passed in the State Senate 21-0.

After significant pushback from supporters of the Anti-SLAPP law, including a vigorous debate before the Assembly Judiciary Committee, the bill was significantly amended. Most of the language gutting the anti-SLAPP law was removed in the amended version, leaving the bill with only two minor procedural changes. For now, the Nevada anti-SLAPP statute is safe and other legislatures in Colorado and Washington are preparing for a similar process.

If you or your organization have been threatened with a defamation lawsuit, or if you would like to learn how to create safeguards to minimize the risks of such a lawsuit, please contact Ward & Ward PLLC for a consultation with one of our attorneys. From pre-publication review through trial, the lawyers at Ward & Ward have considerable experience representing media, nonprofit, and commercial clients with various First Amendment issues.

The Intersection of Free Speech and Trademark Law

We recently discussed the convergence of Anti-SLAPP laws and copyright law. As ongoing litigation in the Federal Circuit demonstrates, the First Amendment also intersects intellectual property law in the context of trademark rights.

In April, the Federal Circuit upheld the U.S. Patent and Trademark Office’s denial of trademark registration for an Asian-American band called “The Slants.” The Court reasoned that denying registration for a “disparaging” trademark as defined by the Lanham Act did not amount to a First Amendment violation since the “PTO’s refusal to register appellant’s mark does not affect his right to use it. No conduct is proscribed, and no tangible form of expression is suppressed.” A week later the earlier opinion was vacated and the Court voted for a sua sponte en banc hearing for another chance to answer this constitutional question: whether denying registration for a  “disparaging” trademark violates the First Amendment.

More recently, in what the Consumer Law & Policy Blog called “Another Important Win for Free Speech,” the Fourth Circuit, in Radiance Foundation v. NAACP, held that the Radiance Foundation’s characterization of the NAACP as “National Association for the Abortion of Colored People,” did not infringe on the NAACP’s trademark rights. Citing New Kids on the Block v. News Am. Publ’g, Inc., the Court held that if such a characterization constituted trademark infringement, “many social commentators and websites would find themselves victims of litigation aimed at silencing or altering their message, because, as noted, ‘it is often virtually impossible to refer to a particular product for purposes of comparison, criticism, point of reference or any other such purposes without using the mark.’”

The line of demarcation between Constitutionally-protected free speech and disparaging names unworthy of trademark protection will likely remain a “moving target” for years to come, and will have substantial economic impact for those that wish to keep or enforce trademarks that are viewed as “disparaging” – just ask the Washington Redskins.  Check back for further updates on this interesting intersection of free speech and trademark law.

Informative EFF Post on the SPEAK FREE Act

The Electronic Frontier Foundation‘s “Deeplinks Blog” has an excellent post on the SPEAK FREE Act (the proposed Federal Anti-SLAPP law) we posted about on Thursday. The EFF post provides a very good summary of the purpose of the Act, how the proposed law would work in practice, and the background of SLAPP litigation.  Take a look HERE.

If you or your organization have been threatened with a defamation lawsuit, or if you would like to learn how to create safeguards to minimize the risks of such a lawsuit, please do not hesitate to contact Ward & Ward PLLC for a consultation with one of our attorneys. From pre-publication review through trial, the lawyers at Ward & Ward have considerable experience representing media, nonprofit, and commercial clients with various First Amendment issues.

Federal Anti-SLAPP Statute proposed in Congress

The always informative DC Anti-SLAPP Law blog has a great post on the proposed SPEAK FREE Act of 2015.  Given the ever-evolving anti-SLAPP landscape, and the confusion/discord over the application of state Anti-SLAPP statutes to claims in Federal Courts, the time is ripe for a Federal statute.

If you or your organization have been threatened with a defamation lawsuit, or if you would like to learn how to create safeguards to minimize the risks of such a lawsuit, please do not hesitate to contact Ward & Ward PLLC for a consultation with one of our attorneys. From pre-publication review through trial, the lawyers at Ward & Ward have considerable experience representing media, nonprofit, and commercial clients with various First Amendment issues.

Copyright Enforcement and the California Anti-SLAPP Law

Anti-SLAPP laws are typically associated with defamation lawsuits. So how can an Anti-SLAPP law help copyright owners who enforce their rights? An ongoing class action dispute against Warner Brothers and other defendants shows one way.

One of the claims in the class action suit against Warner Brothers and others arose from the defendants seeking subpoenas under the Digital Millennium Copyright Act (DMCA). A provision in the DMCA permits copyright owners to seek federal court subpoenas of ISPs in order to identify alleged copyright infringers. The defendants’ use of this process ultimately led to a claim against them for abuse of process.

In response, the defendants sought to dismiss the claim using California’s Anti-SLAPP law. The defendants argued that petitioning courts for redress of copyright rights is protected activity under the California Anti-SLAPP law. The defendants further argued that the plaintiffs could not establish a probability of success on the merits, as required under the law. A U.S. District Court agreed and recently dismissed the abuse of process claim.

Ward & Ward’s attorneys have substantial experience with Anti-SLAPP litigation, pre-publication screening and review for media and non-profit clients, negotiating licensing agreements on behalf of rights holders, and protecting the intellectual property rights of our clients. If you would like to discuss any such matters, please contact us.

Appeals Court: D.C. Anti-SLAPP Law’s Provision Not Available in Federal Court

A federal appellate court has made an important ruling regarding the D.C. Anti-SLAPP Act. On Friday, the U. S. Court of Appeals for the District of Columbia decided Abbas v. Foreign Policy. While dismissing a defamation case against the Defendant, the Court also held that federal courts sitting in diversity jurisdiction may not apply the Anti-SLAPP Act’s special motion to dismiss provision. The Court reasoned that the provision conflicts with federal procedural rules and therefore does not apply in federal court.

The D.C. Anti-SLAPP Act helps protect those threatened with litigation arising out an “act in furtherance of the right of advocacy on issues of public interest.” It is defined to combat “SLAPPs” – Strategic Lawsuits Against Public Participation. The law is most commonly associated with defamation lawsuits.

The Court’s ruling considerably impacts the landscape of defamation litigation in the District of Columbia. Some questions remain open – for instance, whether the Act’s special motion to quash provisions can still apply in federal court.

Have you or your organization been threatened with a defamation lawsuit? Would you like to reduce the risk of such lawsuits and ensure compliance with defamation and media laws? Ward & Ward PLLC has demonstrated success in these areas and can assist you. Call or email for a consultation with one of our attorneys.

Ward & Ward wins big for a highly respected NGO

Ward & Ward PLLC recently obtained a comprehensive victory for a highly respected NGO. Ward & Ward successfully defended C4ADS from claims for defamation and punitive damages brought by Kaalbye Shipping International. The high-profile lawsuit, characterized as a “David versus Goliath battle,” attracted significant attention, including articles in Foreign PolicyVocativ, and elsewhere.

In this particular battle, David prevailed. Ward & Ward attorneys Daniel Ward and Taimur Rabbani initially filed a declaratory judgment action on behalf of C4ADS in response to Kaalbye’s repeated threats of litigation.  Kaalbye responded by filing multiple defamation counterclaims against C4ADS.  C4ADS filed a Special Motion to Dismiss Kaalbye’s defamation counterclaims. If granted, a Special Motion to Dismiss under the D.C. Anti-SLAPP act provides for dismissal with prejudice of the targeted defamation claims, and the award of attorney’s fees and costs. In a recent Opinion, Judge Thomas Motley granted C4ADS’ Special Motion to Dismiss, dismissing with prejudice all claims brought by Kaalbye Shipping against C4ADS.

Have you or your organization been threatened with a defamation lawsuit? Would you like to create safeguards to minimize the risks of such a lawsuit? From pre-publication review through trial, the lawyers at Ward & Ward have considerable experience representing media, non-profit, and commercial clients with various First Amendment issues. Call or email Ward & Ward PLLC for a consultation with one of our attorneys.

Will Kiobel Grant the Privilege to Commit Human Rights Violations?

Kiobel v. Royal Dutch Petroleum, 132 S.Ct. 472 (2011), has presented the United States Supreme Court with a number of questions regarding the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”). The U.S. Court of Appeals for the Second Circuit refused to apply the ATS to Royal Dutch Petroleum. In Kiobel, the facts involved a foreign company acting in a foreign land against foreign plaintiffs – commonly referred to as a “foreign cubed” situation. The Solicitor General, in an Amicus brief, indicated that while the foreign cubed situation (such as is found in Kiobel) causes problems, there are certainly cases where a corporation should be liable under the ATS. In that Amicus brief, the Department of Justice argued that the Second Circuit’s 2-1 ruling is a proper application of the ATS in this particular case, but “insofar as the court addresses whether a corporation can be a proper defendant in a suit under the ATS, the judgment of the court of appeals should be reversed.” The Department of Justice argues that a liberal application of the Second Circuit’s ruling would be in error. In Du v. Cisco, the foreign cubed problem is not an issue. The Solicitor General’s warning regarding the overbreadth of the Second Circuit’s ruling should be heeded. Cisco is a U.S. corporation headquartered in California, which implicates issues irrelevant to the Dutch-based Royal Dutch Petroleum.

All interested parties are awaiting rehearing in the Kiobel case. On February 28, 2012, oral arguments were held in front of the Supreme Court.  A week later, the Supreme Court stated that it would hold additional arguments as to “[w]hether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

The Obama Administration has urged the courts to use caution in ATS cases, while also acknowledging that the Second Circuit’s position is too broad. The present issue of “extraterritorial application” to foreign corporations has put the Executive Branch on alert, fearing that Kiobel, as well as future cases, could have ramifications throughout the political and foreign policy spectrums of the United States. While President Obama has repeatedly supported ATS application to corporations, his administration has asked “to close the U.S. courts to most lawsuits involving claims that a foreign corporation helped a foreign government engage in human rights abuses in that country.”

Given its recent opinions, it would be inconsistent for the Supreme Court to grant corporations the privilege to avoid ATS liability. Just one month ago, in American Tradition Partnership Inc. v. Bullock, 567 U. S. ____ (2012) (reaffirming Citizens United v. FEC, 130 S.Ct. 876 (2010)), the Supreme Court held that corporations have the same legal status as people under the First Amendment. If corporations are to be afforded legal benefits as individuals, they should be saddled with the same legal burdens.

As an American corporation, Cisco should have no special privilege to commit human rights violations under the ATS when a private citizen would be liable for the same action. Cisco, as a corporation operating under and availing itself of the laws and protections of the United States, should be accountable to U.S. courts for its actions.

If you have any information regarding Cisco’s ongoing support for the Chinese Communist Party’s continued oppression of its citizens, please do not hesitate to contact Daniel Ward. Any such communications will be kept confidential.

Let Cisco Systems know that their continued and knowing support of the Chinese Communist Party’s efforts to violate the human rights of peaceful political dissidents like Du Daobin, Zhou Yuanzhi, and Liu Xianbin will no longer be tolerated. Contact your elected representatives — let them know how you feel. Finally, if you haven’t already done so, sign the Electronic Frontier Foundation’s petition – Tell Cisco: Stop helping China abuse human rights!.

China’s Latest Internet Crackdown

The news spread rapidly this weekend: China was conducting a massive internet crackdown to suppress online “rumors” of political unrest within China’s Communist Party, including posts that military vehicles had entered the streets of Beijing.  As described by the New York Times, Wall Street Journal, Washington Post, and the BBC, to name a few, China’s latest censorship attempt involved temporarily preventing the nation’s hundreds of millions of internet users from being able to post comments on the nation’s two largest “Twitter-like” microblogging operators, Sina Corp. and Tencent Holdings Ltd.  In addition, a reported six people were detained and sixteen websites were shutdown as part of the crackdown effort.

Why such a drastic move? As the Director of a Chinese media website told the Detroit Free Press, the crackdown was intended to “send[] a signal to the Internet companies and users that the government is watching you.”  More specifically, the censorship and detentions apparently intended to quell rumors of a coup, sparked by the sudden removal of Bo Xilai, a high-profile Chinese official who was, until recently, favored to join the top echelon of Chinese political power. As reported by Time, however, “Bo’s rise was derailed last month when a key deputy, former police chief and Chongqing vice mayor Wang Lijun, made a surprise visit to a U.S. consulate. Wang spent an evening at the consulate and was then detained by state security officers upon leaving. Wang has also been removed from his official post.”

The bigger question is whether the crackdown was successful.  Not exactly, according to many who have suggested that it may have resulted in exactly the opposite intended result due to the intense media coverage.  After all, “What is the best way to stop ‘rumors’?, Zhang Xin, one of China’s most prominent real estate developers, asked the 3-million-plus followers of her Sina blog.  It is transparency and openness.  The more you don’t allow speech, the more rumors there will be.”

As is seen in Du v. Cisco, Cisco supports and profits from the Chinese Communist Party’s oppressive censorship of its citizens.  If you have additional information regarding this ongoing support by Cisco, please do not hesitate to contact Daniel Ward.  Any such communications will be kept confidential.

Let Cisco Systems know that their continued and knowing support of the Chinese Communist Party’s efforts to violate the human rights of peaceful political dissidents like Du Daobin, Zhou Yuanzhi, and Liu Xianbin will no longer be tolerated. Contact your elected representatives— let them know how you feel.  Finally, if you haven’t already done so, sign the Electronic Frontier Foundation’s petition – Tell Cisco: Stop helping China abuse human rights!

 

Kiobel v. Royal Dutch Petroleum: Supreme Court Oral Argument Recap

As has been widely reported, the Supreme Court recently heard oral argument in the case of Kiobel, et al. v. Royal Dutch Petroleum, et al. (10-1491), to determine whether liability under the Alien Tort Statute (ATS) extends to corporations that have allegedly committed grave human rights abuses.  Petitioners argued that it does, on the ground that international law forbids specific acts, not actors, and even if it did not, domestic law governs when international law is silent.  Respondents disagree, asserting that international law simply does not recognize corporate responsibility; thus, corporations cannot be liable under the ATS.

Post-argument analysis has been far-reaching, with many commentators speculating that the Justices seemed most interested in the extraterritoriality issue, i.e., whether US courts even have the authority to decide cases with absolutely no connection to the US.  To name a few, SCOTUSblog describes how Justice Kennedy’s questions on that very topic were devastating to Petitioners’ case.  Similarly, NPR features a piece that describes the human rights abuses at issue, along with the perspective of John B. Bellinger III, former State Department counsel who also filed an amicus brief in the case on behalf of a half-dozen multinational corporations.  In the NPR piece, and in a Washington Post op-ed, Bellinger contends “that international law binds nations and individuals, but not corporations,” and that neither the ATS nor international law allows American judges to adjudicate actions that have occurred in other countries and “that have absolutely nothing to do with the United States.”

As it turns out, the legal speculators were correct.  Last week, the Supreme Court ordered re-argument in Kiobel to answer the following narrow question: “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”  As described by SCOTUSblog, while the Justices did not elaborate on the decision in the order itself, reports from a private conference last week reveal that they found themselves faced with the option of either granting cert in Rio Tinto PLC, et al., v. Sarei, et al. (11-649), a case that directly raised the issue of extraterritoriality, or expanding the review of the Kiobel case.  Based on the order that came down, they apparently chose the latter.

Notwithstanding the recent development, the New York Times last week featured a post-argument op-ed that serves to take us back to the heart of the case.  Susan Farbstein and Tyler Giannini, Harvard Law Professors who filed amicus briefs in support of the Petitioners in Kiobel assert: “In exchange for rights, corporations accept certain responsibilities, including liability for harms committed by their agents. Corporations should not receive greater legal protections than people. Relief from suffering, and accountability for human rights violations, should not depend on whether an individual or a corporation is responsible for the abuse.”  Also focused on the merits, Marco Simmons, Legal Director at Earth Rights International, writes that during oral argument the Justices, especially Justice Alito, “asked difficult questions that suggested skepticism about using the ATS for transnational human rights cases,” however, “they did not ask pointed questions that supported applying different rules to human beings and corporations.”   Finally, Georgetown Law features a post-argument roundtable , which featured Paul Hoffman, counsel for Petitioners, along with several prominent authorities in international and human rights law.