Defamation Solutions

The Litigation Privilege and Collateral Defamation Actions

Spawning Litigation Actions
I get the same question a couple of times a week, so I decided that a article on the litigation privilege is in order, so I will have a place to send potential clients for a detailed discussion. (I also briefly discuss the police report privilege.)

The question from potential clients almost always comes up in the context of wanting to start a collateral action* for defamation in response to something that is being said in some other court action. Here are the most common examples:

— A husband is going through a divorce, and his wife or a witness or the wife’s attorney filed a declaration with the court stating that he was physically abusive to the children. He wants to file an action against his wife (or the witness or the attorney) for defamation for the false claims made in the declaration.

— Someone is seeking or has obtained a restraining order against the caller, and in support of the request for a restraining order the person filed false declarations and gave false testimony in court. The caller has absolute proof, including emails and recordings, showing that the statements were false. The caller wants to sue for defamation because of all the false statements, which are now a matter of public record.

— An attorney sent a letter to an employee’s employer, claiming that the employee stole property and trade secrets from his former employer, and threatening to sue if the property is not returned or if the employer makes use of any of the trade secrets. Based on the letter, the company fires the employee rather than to run the risk of a lawsuit. The employee did not take any property from the former employer and is not using any trade secrets, and wants to sue the former employer and its attorney for defamation.

— An employee is suing for wrongful termination, and the deposition of one of his former co-workers is taken. At that deposition, the co-worker falsely claims that she was sexually harassed by the employee suing for wrongful termination. As a result of this claim, the court grants a motion for summary judgment and throws out the action, and the employee’s marriage is severely strained because of the claim of infidelity. The employee wants to sue the co-worker for defamation for what she said at her deposition.

— A person is sued for fraud, and in the complaint there are dozens of false allegations, stating that the defendant engaged in illegal conduct and made misrepresentations to the plaintiff in order to cheat her out of money. After the complaint is served, the plaintiff dismisses the action, but the complaint is now a matter of public record, and anyone doing a search on the Internet can find this complaint with all its lies. The defendant wants to sue for defamation.

Statements Made in Conjunction with Litigation are Privileged

None of the above circumstances would permit an action for defamation. A quick definition is necessary to explain why. Defamation requires an UNPRIVILEGED false statement. Therefore, if a statement is privileged, it cannot be defamatory.

Read the rest of this entry »

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Anti-SLAPP Motions are Used For Just About Everything

Paris Hilton Greeting Card

This case is a few years old, but it illustrates how anti-SLAPP issues can come up in just about any context. In this entertaining case, Hallmark Cards published a card using Paris Hilton’s likeness, and her ridiculous tag-line, “that’s hot”.

Hilton sued for the unauthorized commercial use of her image and, incredibly, Hallmark brought an anti-SLAPP motion, claiming the card was a matter of public interest. The trial court denied the anti-SLAPP motion, finding the card and its speech was not a matter of public interest, and the Court of Appeals for the Ninth Circuit agreed.

“First, ‘public interest’ does not equate with mere curiosity. Second, a matter of public interest should be something of concern to a substantial number of people. Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. Third, there should be some degree of closeness between the challenged statements and the asserted public interest; the assertion of a broad and amorphous public interest is not sufficient. Fourth, the focus of the speaker’s conduct should be the public interest rather than a mere effort to gather ammunition for another round of private controversy. Finally, … [a] person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people.”

Here is the complete opinion.

 

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Why It Is a Really Bad Idea to Use Litigation as a Means to Discover Defamation

Defamation - Shot in Foot

I get this type of call perhaps twice a week, so I decided to post this article, in order to provide detailed information to prospective clients who bring up these issues.

Here is the scenario. The caller is convinced that he is being slandered, but does not know exactly what is being said. He may know who is making the statements, but has heard only rumors about what is being said, or has witnessed only the consequences of the statements. Often the issue will arise in the workplace, where because of the statements of a co-worker, the caller is being passed over for promotions, or perhaps was terminated because of those statements. Other times it might be a neighborhood situation, where the caller feels he is being shunned by neighbors and has reason to believe it is because of something said at an HOA meeting.

The problem with this sort of case is that you can’t determine if you are being defamed until you know what is being said. The consequence of a false statement can be severe, but that does not mean the statement is defamatory. For example, you might be entirely correct that you are being passed over for promotions because of something being said by a co-worker, but that co-worker might simply be saying that you are lazy and should not be promoted. That statement is not defamatory, because it is an opinion. Defamation can be very nuanced, and whether a statement is defamatory can come down to a single word or even the voice inflection used.

Before I can take a case, I have to know what was said. In cases where the prospective client does not have direct evidence of what is being said, I have a simple screening process. Read the rest of this entry »

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Reporting a Fact is Never Defamatory

Facts are not defamatoryIt is never defamation to report a fact, even if that fact is that a person was charged with a crime they did not commit. I understand why callers sometimes don’t understand this distinction. The completely innocent caller was falsely arrested, so it seems like a newspaper that reports the arrest is somehow making a false statement that the caller committed a crime. But look closer, caller. The paper did not report that you committed the crime, the paper reported that you were ARRESTED for the crime. Truth is an absolute defense to any defamation claim, and it is true that you were arrested.

I also see this come up often in the context of an expunged criminal conviction. The caller was arrested and convicted for some youthful indiscretion, and later had the conviction expunged. Years later, the caller was either fired from or denied a job because a background investigation revealed the conviction. “But I had that expunged, so they shouldn’t be able to report it to my employer!”, the caller exclaims. The caller wants to sue for defamation, because in his mind the offense was expunged, and therefore it never happened. Since it never happened, it must be defamatory to claim that it did, right?

Not so much. Expungement does not change reality. The caller was arrested and convicted, so it is not a false statement to report that fact, and therefore there is no basis for a defamation claim. Note, however, that I am only talking about defamation claims. There are Labor Codes that make it illegal to discriminate on the basis of expunged criminal convictions. Go here for a discussion of those Labor Code sections.

What I don’t understand is how so many attorneys miss this point and pursue doomed defamation claims for their clients.

A recent example of this that caught my eye is a case out of Nevada. As reported by the Las Vegas Sun, the accounting firm of Deloitte & Touche was hired to perform an audit of a company called Global Cash Access Holdings, Inc., which is a publicly traded company that provided cash access services to the Nevada gaming industry.

The accounting firm uncovered information from an FBI bulletin which claimed that the two men who founded the company – Robert Cucinotta and Karim Maskatiya – were involved in criminal activity. As they were required to do by law, Deloitte & Touche disclosed this information to the audit committee. Cucinotta and Maskatiya were not happy with this disclosure, and felt it amounted to defamation because they were never convicted of any crimes and there was no evidence that they did anything criminal. They sued Deloitte & Touche, claiming that the disclosure cost the company $400 million in market capitalization and cost them $100 million personally.

But can you see why the comments by Deloitte & Touche were not actionable defamation? The accounting firm simply reported information that was contained in the FBI bulletin, as it was required by law to do. Certainly if those allegations against two principals of the company proved to be true it would greatly impact the value of the company, so that information was quite properly reported.

The Nevada Supreme Court, in a decision written by Justice Michael Cherry, said, “We agree with our sister jurisdictions that those who are required by law to publish defamatory statements should be privileged in making such statements.” In this case the court said Deloitte’s communication to the audit committee of the cash access company was required by the federal securities law.

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Anti-SLAPP Victory — Shaheen Sadeghi v. Delilah Snell

Defamation Road Less TraveledI just wish counsel would run these cases past me before filing a defamation action. Here is a tale of a SLAPP that should have been spotted a mile away.

The tale starts with an article in OC Weekly. The article was about a guy named Shaheen Sadeghi. The article was extremely favorable to Sadeghi, referring to him as the “Curator of Cool” and discussing his amazing success in Orange County. OC Weekly even put his visage on the cover of the paper. Truly, it was a positive article that most would kill for.

But everyone has their detractors, and Sadeghi’s was a woman named Delilah Snell. After disclosing that Snell happens to be the girlfriend of a OC Weekly editor, the article reports on a dustup between Snell and Sadeghi, as told by Snell. Here is what the article said:

Still, some say Sadeghi will do whatever it takes to succeed. Delilah Snell, owner of Road Less Traveled, a shop in Santa Ana that sells environmentally friendly gifts and home goods, met with him in 2008 to discuss an opportunity to move to the Camp. (Full disclosure: Snell is the girlfriend of OC Weekly editor Gustavo Arellano.) She says the rent rate he gave was way too high, at least triple what she was paying, and she declined the offer. Then, she claims, he made a threat. “He basically said to me, ‘If you don’t move into my center, I will copy your business,'” she says.

Snell, co-founder of the Patchwork Indie Arts & Crafts Festival and a pioneer in Orange County’s eco-movement, believes her store is the model for the Camp’s SEED People’s Market, an airy, 12,000-square-foot gallery-type outlet that sells sustainable products and handmade crafts. Sadeghi owns the store with his wife, Linda. Snell claims that SEED has approached many of the vendors featured at Road Less Traveled and even used a photo of her shop in a promotional email sent out to customers. (The Weekly has a copy of the email.)

The article then goes on to tell Sadeghi’s side of the story:

Of Snell’s accusations, Sadeghi responds, “I think she’s full of it.” He says his business plan for SEED was dated “five years before she developed a business plan.”

“It’s a whole different store, whole different vibe,” he says, “and it has nothing to do with Road Less Traveled.”

The article then returns to singing the praises of Sadeghi, providing examples of how he is beloved by his tenants at his business centers like The Lab in Costa Mesa.

Sadeghi sued Snell in Orange County Superior Court, alleging in his complaint that Snell “orally accused Mr. Sadeghi of threatening to copy Ms. Snell’s business idea and plan if Ms. Snell did not move into Plaintiff’s retail center.” Sadeghi then alleged causes of action for slander, slander per se, libel, libel per se, invasion of privacy/false light, intentional interference with economic prospective advantage (sic), negligent interference with economic prospective advantage (sic), unfair competition, and injunctive relief. Whew! All arising from the statements Snell allegedly made to the OC Weekly, claiming that Sadeghi had said “If you don’t move into my center, I will copy your business.” Snell responded with an anti-SLAPP motion.

A quick aside to discuss the “Wall of Wrong”.

A potential client will call me, and during the call will tell me about 20 evil deeds committed by the defendant. In their mind, they have been horribly wronged, and they want to sue. Fair enough, but for a legal action each wrongful deed must be viewed independently to determine if it is actionable. I call the wrongful acts the “Wall of Wrong”, and each wrongful act is an item on that wall. (I considered calling it the Shelves of Wrong, but that didn’t seem as catchy.) I explain to the client that to determine if there is a case, we must walk up to the wall, take down each item and examine it independently to see if it will support an action. If not, it is tossed away never to be discussed again.

The reason this exercise is so important is because the client groups all the perceived wrongdoing together, and views it as a single act that certainly must support an action. But when all the conduct that does not support the action is stripped away, the client will often see that there is no action or that what is left remaining is pretty petty.

One more point to keep in mind in the defamation context is that just because something is false does not mean it is defamatory.

So let’s take Mr. Sadeghi to the Wall of Wrong to see if he has a case. Here, there are only two items to examine: (1) the claim that he was going to copy Snell’s business, and (2) that he pressured Snell to lease space in his center with the aforesaid threat. Let’s take those items off the shelf one at a time and decide if they will support a suit.

“I will copy your business.”

Sadeghi alleged that he never said he was going to copy Snell’s business. So, is it defamatory to falsely claim that someone said he was going to copy your business? Of course not. That statement, whether true or false, does not accuse Sadeghi of any wrongdoing. Imitation is the sincerest form of flattery. As the court put it in granting the anti-SLAPP motion, “Pepsi copies Coke. Gimbel’s Copies Macy’s. This is the nature of business.” Mr. Sadeghi, take that statement from the Wall of Wrong and never speak of it again.

Pressuring Snell to lease space.

Is it wrong to pressure someone to lease space in a mall? Of course not. But let’s refine that a little. Is it wrong to say you will copy someone’s business if they don’t lease space from you? Sometimes creating an analogous fact pattern makes it easier to analyze. Let’s say you have a chain of pizza restaurants, and a landlord comes to you and says, “we really want a pizza place like yours in our center, so we just want you to know that if you don’t lease the space, we’re going to create a pizza place just like yours for our center.”

Anything wrong with that? Sure, he’s pressuring you to rent the space with the threat of opening a competitor if you don’t, but that’s fair. When a landlord is looking for an anchor store in their mall, don’t you think they play Macy’s and Neiman Marcus off one another? Mr. Sadeghi, take that statement from the Wall of Wrong and never speak of it again.

So we are left with nothing on the Wall of Wrong, meaning that there is no case to pursue. This case should never have been filed, and the court properly granted the anti-SLAPP motion.

A SLAPP is not saved by numerous legal theories.

The other essential takeaway from this case is that nine causes of action do not a case make if the basis for the action is defective. In other words, if it was not defamatory for Snell to claim that Sadeghi said “If you don’t move into my center, I will copy your business,” then those words will not support any other legal theories like intentional infliction of emotional distress or unfair competition.

Further information about the case and the Court’s minute order can be found here, and the original article in question can be found here.

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Saying Your Letter Cannot be Published Does Not Make it True

In a prior posting, I discussed how ineffectual cease and desist letters are, and how some recipients of such letters will even post them as a sort of badge of honor.

In an apparent attempt by some attorneys to keep from having their letters published, I have now seen a number of instances where the attorney sending the letter adds the following language:

“You are not authorized to disclose the contents of this letter publicly or to disseminate it…”

Some even go so far as to claim that the letter is copyrighted, asserting that by publishing the letter the recipient will be violating copyright law. This is all hogwash, but I suppose the attorneys reason that the recipient may not know that it is hogwash, and it may prevent some of them from putting up the letter and making fun of the attorney and his or her client for sending it.

For a great example of this, and how instead of achieving the intended purpose it only invited greater comment, check out this amusing article by techdirt. The article is also a great example of not knowing when to hold them, and when to fold them.

I learned long ago to view every letter I draft as a potential trial exhibit. Don’t send a letter you would not want to see projected onto a wall for the judge and/or jury to view and critique. That rule now applies to the Internet. If an attorney feels the need to insert language falsely claiming that the recipient is not allowed to show it to anyone else, then that is a letter that probably should not be sent.

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Peer Review Process for Doctors is a Protected Activity Under SLAPP Statute

Anti-SLAPP Motion against doctor
The California Court of Appeal just ruled that I know what I’m talking about when it comes to SLAPP law, and that I have saved many doctors from filing actions that would have been met with successful anti-SLAPP motions and thereby cost them many thousands of dollars, paying the other side’s attorney fees.

OK, the Court didn’t actually mention me by name, but that’s the way I read it. You see, most doctors (depending on their practice) want and need medical privileges at one or more hospitals. Without those privileges, their practices are really crippled. So when a hospital decides to revoke those privileges, it is a big deal for the doctor.

Following the revocation, the doctors want to do something, anything, to pressure the hospital’s board to reinstate the privileges. That often brings them to my door, wanting to sue for defamation, claiming that someone said something that cost them their privileges, and that they suffered damages as a result.

I have always refused such cases, because I am of the opinion that under normal circumstances, the entire medical peer review process qualifies as an official proceeding. Therefore, it falls under both the anti-SLAPP statute and the absolute privileges of Civil Code section 47. No matter how you try to plead the action, it will come back to the fact that the decision to fire the doctor was a protected activity.

Leading us to the case of radiologist John Nesson versus Northern Inyo County Local Hospital District. Read the rest of this entry »

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Judge Orders Man to Apologize to Ex-Wife on Facebook

Facebook Censorship

Clients sometimes ask me to seek a letter of apology as part of a defamation settlement. I have managed to do so on a number of occasions, but I usually recommend a letter of retraction as opposed to a letter of apology, because the latter is often a deal breaker.

In our society, a true apology is a big deal (as opposed to an “I apologize if you were offended” type of apology). Many defendants would rather pay money than to apologize, which is somehow viewed as weak. After all, a real apology seeks forgiveness from the other side, so it sticks in the craw of most defamers that they are basically asking the victim to pass judgment on them.

With this mind set in mind, one can fully appreciate the frustration of Mark Byron. He and his wife were divorcing and fighting over the custody of their son. When the judge issued an order limiting his custody, he went to his Facebook page to vent, posting:

“… if you are an evil, vindictive woman who wants to ruin your husband’s life and take your son’s father away from him completely — all you need to do is say that you’re scared of your husband or domestic partner… , “

But there was a problem. The judge had also ordered Byron not to do “anything to cause his wife to suffer physical and/or mental abuse, harassment, annoyance, or bodily injury.” His wife was blocked from his Facebook page, but she got wind of the posting anyway and her attorney charged into court seeking a contempt order, asserting that the posting violated the protective order.

The judge agreed that it violated the order, and gave Byron a choice. The normal result for violation of a court order is a fine and/or some time in jail. The judge told Byron he could go to jail for 60 days for the violation of the order OR he could post an apology on Facebook. Byron decided he’d eat a little crow and post the apology rather than to sit in jail for two months. Here is what he posted:

I would like to apologize to my wife, Elizabeth Byron, for the comments regarding her and our son … which were posted on my Facebook wall on or about November 23, 2011. I hereby acknowledge that two judicial officials in the Hamilton County Domestic Relations Court have heard evidence and determined that I committed an act of domestic violence against Elizabeth on January 17, 2011. While that determination is currently being appealed, it has not been overturned by the appellate court. As a result of that determination, I was granted supervised parenting time with (my son) on a twice weekly basis. The reason I saw (my son) only one time during the four month period which ended about the time of my Facebook posting was because I chose to see him on only that single occasion during that period. I hereby apologize to Elizabeth for casting her in an unfavorable light by suggesting that she withheld (my son) from me or that she in any manner prevented me from seeing (my son) during that period. That decision was mine and mine alone. I further apologize to all my Facebook Friends for attempting to mislead them into thinking that Elizabeth was in any manner preventing me from spending time with (my son), which caused several of my Facebook Friends to respond with angry, venomous, and inflammatory comments of their own.

This case is being reported as a judge who trammeled on the free speech rights of a party, but I really don’t see it that way. Would it have been better for the judge to jail Byron with no offer of an alternative? There was another case where a judge told a shoplifter he could go to jail or stand in front of the store wearing an apology sign for a day. People also got up in arms about that verdict, but I think so long as it is offered as an alternative to normal jail time. For the record, to judges everywhere, if you are about to send me to jail, please offer me some crazy punishment as an alternative. On the other hand, if the judge had simply ordered the apology, I would have a problem with that result.

Where I think the judge got it wrong was his determination that Byron had violated the order. The judge had ordered him not to do anything to cause his wife “to suffer physical and/or mental abuse, harassment, annoyance, or bodily injury.” His Facebook posting was an absolutely true statement, and it only became “about” his wife if the reader was familiar enough with the circumstances to connect the dots. The comments were not even addressed to his wife, since she was blocked. To order someone not to say anything that might “annoy” someone else, and then hold them in contempt for doing so, is not appropriate in this country.

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How India Deals with Twitter Defamation

Pooja Bedi suffers Twitter Libel

Pooja Bedi

I recently reported on a Twitter defamation case in Australia, and how strange things can get without a law like the Communications Decency Act. Now comes a case out of India.

India has a police unit called the Cyber Crime Investigation Cell (CCIC). Although I don’t want to see defamation criminalized, because that then gives the government the power to silence unpopular speech, I do admit the thought of an agency you could turn these things over to is slightly appealing.

In the case in India, the CCIC is investigating a complaint filed by actor Pooja Bedi against an anonymous Twitterer (Tweeter?, One who Tweets?), for allegedly defaming her on Twitter. According to Bedi’s complaint to the cyber crime unit, someone has been trying to tarnish her image on Twitter. Bedi has also alleged someone was threatening violence and writing ill about her.  “These things are serious in nature and need to be investigated,” said Bedi in her complaint.

However Bedi said after the police complaint was filed, the accused deleted her account and changed her Twitter ID to @missbollyB, even apologizing to Bedi through her posts. Cyber crime cell officers said they had registered a case of defamation based on Bedi’s complaint. The police have sent a request to US authorities to provide information necessary for the probe.

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Is Rush Limbaugh Facing a Claim for Defamation?

Rush Limbaugh Liable for Slander

I’m getting calls from media outlets about some comments made by Rush Limbaugh, and whether they constitute defamation. I’m always happy to talk to you reporters and provide comments, but thought I’d put this post up to provide some background for your articles.

Apparently Rush Limbaugh weighed in on the controversy over religious organizations being forced to pay for birth control for their employees. Following an appearance by Sandra Fluke, a Georgetown University student, at an informal House Democratic hearing last month. Ms. Fluke testified in favor of Mr. Obama’s mandate, which Georgetown and other Catholic institutions have roundly condemned as an infringement on their religious rights.

At the hearing, Ms. Fluke said fellow students at her Jesuit university pay as much as $1,000 a year for contraceptives that are not covered by student health plans.

On Wednesday, during his radio show, Limbaugh allegedly said:

“What does that make her? It makes her a slut, right? It makes her a prostitute . . . she wants to be paid to have sex … She’s having so much sex she can’t afford contraception.”

Accusing a woman of being unchaste is the classic, old-school form of slander. Here is the definition of slander under California’s Civil Code § 46:

Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;

4. Imputes to him impotence or a want of chastity; or

5. Which, by natural consequence, causes actual damage.

I’ll bet you never knew it was slander to accuse a man of being impotent, but I digress. There it is in black and white – it is slander to impute to a woman a “want of chastity”. (For those of you who carefully read the section and see that it said “imputes to HIM . . . a want of chastity”, you get bonus points. However, there is a catchall statute that provides statements of gender in statutes don’t exclude the other gender, so you can’t accuse men or women of being loose.)

So is Rush Limbaugh toast?

Not at all, because defamation law makes clear that context is everything. Back in 2009 I wrote about the case of radio commentator Tom Martino who stated on his consumer show that the sellers of a boat were “lying”. The plaintiffs/sellers took umbrage with that remark, and sued Martino for defamation. Defendants responded with an anti-SLAPP motion, claiming the statement was merely an opinion and therefore could not constitute defamation. The trial court agreed with defendants and ruled that as a matter of law the comments did not constitute defamation. Under the anti-SLAPP statute, plaintiffs were ordered to pay all of defendants’ attorney fees.

A true opinion cannot constitute defamation unless it is offered as an assertion of fact. While it was true that the radio program host accused the plaintiffs of “lying” to their customer, that could not seriously be taken as an assertion of fact given the context of the show. As the court observed, “The Tom Martino Show is a radio talk show program that contains many of the elements that would reduce the audiences’ expectation of leaning an objective fact: drama, hyperbolic language, an opinionated and arrogant host and heated controversy. In the context of the show, Martino was simply listening to the complaint of a caller, and possessed no independent knowledge of the facts beyond what he was being told. It could not be taken, in that context, that he intended his “lying” comment to be taken as a verifiable fact.

So it is with Rush Limbaugh. He knows nothing about this woman who believes others should pay for her birth control, and he was engaging in a little hyperbole about what that makes her. He was creating a false syllogism to make a point, claiming that based on her testimony she wants to have sex, she can’t have sex without birth control, she wants someone else to pay for her birth control, so she is being paid to have sex.

As the old saying goes, you can sue for anything, but a defamation action by Ms. Fluke would not survive the first motion (especially if I was the attorney defending free speech).

And speaking of free speech, the fight for free speech should not depend on the politics of the speaker. Here is a colorful article from someone who hates Limbaugh, but quite properly would fight for his right of free speech.

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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NOTICE PURSUANT TO BUSINESS & PROFESSIONS CODE SECTION 6158.3: The outcome of any case will depend on the facts specific to that case. Nothing contained in any portion of this web site should be taken as a representation of how your particular case would be concluded, or even that a case with similar facts will have a similar result. The result of any case discussed herein was dependent on the facts of that case, and the results will differ if based on different facts.

This site seeks to present legal issues in a hopefully entertaining manner. Hyperbolic language should not be taken literally. For example, if I refer to myself as the “Sultan of SLAPP” or the “Pharaoh of Free Speech,” it should not be assumed that I am actually a Sultan or a Pharaoh.

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