anti-SLAPP, Charles Harder, Daniel Ortiz University of Virginia, Jeff Dorrell, Jeffrey Dorrell Hanszen Laporte, President Trump, Stephanie Clifford v. Donald J. Trump, Stormy Daniels v Trump, Texas Citizens Participation Act, Thomas Retzlaff, University of Virgina School of Law, Van Dyke v. Retzlaff
It has been said that politics make strange bedfellows. But in this case, politics has nothing to do with it as both President Trump and your American Hero & Honorary Admin of the BV Files Thomas Retzlaff are both admirers of one another having met several times before – most recently January 22, 2020.
But, hey, BV Files, why are President Trump and Retzlaff allies in a case before the U.S. Supreme Court? you ask. Well, hold on a minute, friends, and we shall tell you!
The scope and power of Texas’ Anti-SLAPP statute seems boundless. To wit, the POTUS himself, Donald J. Trump, was saved the ignominy of an embarrassing and salacious trial against his arch-rival and former paramour Stormy Daniels and her PR-loving attorney, Michael Avenatti.
The wild case, Stephanie Clifford v. Donald J. Trump, started in New York federal court, transferred to California federal court, and was ultimately dismissed under the Texas Citizens Participation Act (“TCPA”), the lone-star state’s version of an Anti-SLAPP law meant to protect the right to free speech, free association, and freedom to petition the government.
Back in 2018, Daniels (real name Stephanie Clifford) was attempting to get out of a “hush deal” concerning her alleged affair with Trump when her then-attorney Michael Avenatti released a sketch of a man who threatened Daniels into remaining silent back in 2011.
The case stemmed from a Trump tweet that called Daniels “a total con job.”
In a concise and well-written opinion, Judge Otero analyzes Ms. Clifford’s (aka Stormy Daniels) defamation-related claims against President Trump under the TCPA. The TCPA effectively requires the plaintiff to prove each element of each claim before conducting any discovery, except under some limited circumstances. Defamation claims are very difficult to prove with many defenses and loopholes, requiring a plaintiff to have his or her “ducks in a row” or face a very expensive dismissal with prejudice.
In the October 2018 decision, Judge Otero concluded that Daniels had failed to establish a prima facie case for defamation. The judge saw “con job” as “rhetorical hyperbole” outside the scope of something that could be disproved. What’s more, Daniels had failed to demonstrate “actual malice,” meaning Trump had knowledge of falsity or recklessly disregarded the truth. That’s a standard that public figures must meet to carry defamation claims — and when folks like Trump say they want to reform libel laws, that’s usually what they’re attacking.
President Trump defeated Ms. Clifford’s defamation claims with standard defenses of opinion/hyperbole (as opposed to factual assertion) and that Ms. Clifford suffered no real damages, an element of almost all civil claims.
*** CLICK ON IMAGE TO VIEW ON YOUR MOBILE DEVICE ***Daniels v Trump - ECF 46 - order granting TCPA attny fees & sanctions
As this case shows, defamation claims are especially perilous and subject to dismissal under the TCPA, and should be carefully pled – – if pled at all. Failure to do so could result in mandatory sanctions and reimbursement of the defendant’s attorneys’ fees, which can easily exceed $100,000.
In the end, the judge ruled that Daniels’ owes President Trump $293,052.33 in attorneys’ fees, costs, and TCPA sanctions.
She has appealed this decision to the U.S. Ninth Circuit Court of Appeals.
But Judge Otero’s dismissal raised another issue, and while some are paying attention to the case as merely the latest chapter in Stormy Daniels’ feud with the President of the United States, the case has raised a consequential legal matter of special interest to all media companies: SLAPPs, or Strategic Lawsuits Against Public Participation.
Daniels’ complaint was dismissed under Texas’ anti-SLAPP statute, which provides protection against frivolous litigation intended to chill one’s free speech activity. Media companies (such as the BV Files) frequently get hauled into court, and like Trump here, publishers often rely upon SLAPP protections to quickly extradite themselves from nuisance suits before legal bills pile up and the costs of defending amount to victories for plaintiffs no matter the merits of the claims.
However, it’s become controversial whether federal courts should be applying SLAPP laws enacted by states. Some federal circuits have come to the conclusion that SLAPP standards impermissibly regulate federal rules of civil procedure, which guide judges to analyze a complaint’s plausibility rather than its likelihood of success. Put a different way, on matters of public concern where First Amendment rights are implicated, the burden of showing a winnable case shifts to the plaintiffs at a very early stage.
When did the anti-anti-SLAPP movement pick up steam? Well, that dates to the time that Trump attempted to countersue a student of the infamous Trump University, and the case went up to the Ninth Circuit. In Makaeff v. Trump University, the now-retired Alex Kozinski authored an influential concurring opinion. Other appellate justices like Brett Kavanaugh then took the cue and ran roughshod over district judges using anti-SLAPP rules.
So now, Trump is back at the Ninth Circuit defending the worth of an anti-SLAPP statute thanks to Stormy Daniels’ appeal. Even more incredible, he’s represented by Charles Harder, who has built somewhat of an anti-media reputation after slaying Gawker in the Hulk Hogan sex tape lawsuit. Ironically, it’s become the duo of Trump and Harder who are faced with the task of saving SLAPP analysis in the Ninth Circuit, which Kozinski once called the “Hollywood circuit.”
Clark Brewster made arguments for Daniels in her effort to overturn a “knockout [that] was swift and punishing,” plus a result meaning she’d be responsible for paying $293,000 of Trump’s legal bills. Brewster said this was a case of first impression, meaning the legal issue at play is novel.
While appellate circuits have come to conflicting conclusions about applying SLAPP laws in federal circuit, this case involves a California judge applying Texas’ anti-SLAPP statute. Last August, in Klocke v. Watson, the Fifth Circuit ruled Texas’ anti-SLAPP statute doesn’t apply in federal court, raising the odd prospect that Texas lawmakers enacted legislation of benefit to those living outside of their own state in defending lawsuits from their own citizens (like Stormy Daniels). “The issues of comity control,” Brewster said. “You have to give deference to the sister circuits.”
“Given that the Fifth Circuit doesn’t apply the TCPA [Texas’ anti-SLAPP statute] in federal court, why should we apply it here?” asked Ninth Circuit judge Kim Wardlaw of Harder.
“That’s a good question,” responded Harder, who at first seemed to struggle with voicing words few would have ever predicted would come out of his mouth.
At the hearing, Harder called Texas’ anti-SLAPP statute a “substantive” change (rather than a procedural one), and added it was virtually identical to California’s anti-SLAPP statute, which has repeatedly been affirmed by the Ninth Circuit. He then quoted Justice Wardlaw in Makaeff v. Trump University when she wrote:
Through anti-SLAPP laws, the legislatures of Arizona, California, Guam, Hawaii, Nevada, Oregon, and Washington have decided to impose substantive limitations on certain state law actions. Refusing to recognize these limitations in federal court is bad policy. If we ignore how states have limited actions under their own laws, we not only flush away state legislatures’ considered decisions on matters of state law, but we also put the federal courts at risk of being swept away in a rising tide of frivolous state actions that would be filed in our circuit’s federal courts.
Shifting to his own thoughts on the matter or at least his best attempt at advocacy, Harder added, “It’s good law in the Ninth Circuit to apply the anti-SLAPP statutes. And when you have the TCPA, which has been held by Texas law to be substantively identical to the California anti-SLAPP statute, there’s no reason not to apply it.”
“The only reason is, had you brought this case in Texas federal court, you would not have this motion available to you, right?” asked Wardlaw.
“At the time we filed it, the Klocke decision had not come about,” answered Harder. “If our case had preceded the other one, perhaps the Fifth Circuit would have been persuaded otherwise. I don’t know.”
Harder then made the point that without federal court application of anti-SLAPP statutes, plaintiffs would “forum-shop” their suits into such jurisdictions in order to gain advantage. Said Harder, “This court correctly recognized that if the legislature wants to get rid of SLAPP suits, you apply the SLAPP statutes everywhere they can be applied including in federal courts. Klocke wasn’t looking at forum shopping. I think it missed an important point.”
Given the hundreds of thousands of dollars on the line, and most important, an appellate circuit split on the big issue, don’t be shocked if this case winds up at the Supreme Court no matter which way the Ninth Circuit comes down.
Which is the reason why Retzlaff was in Washington, DC, in January meeting with a group of attorneys who have joined forces to make certain that the Texas Citizen Participation Act is available in federal court!
*** CLICK ON IMAGE TO VIEW ON YOUR MOBILE DEVICE ***US Supreme Court Petition - Van Dyke v Retzlaff
And if were not already convinced that SLAPP suits are a bad thing, just CHECK THIS OUT!!
And here is a special article by Admin Mike who has been forced to telework from home. One of his relatives is in the US military and Admin Mike has some real nice suggestions on some websites you can use to improve your work. CHECK IT OUT!!
BEIJING – President Xi Jinping announced today that China is opening free web services to aid U.S. service members working at home due to novel Coronavirus restrictions.
Xi said, “China offers these services in the spirit of military cooperation, in keeping with our long tradition of respecting international human suffering, and not in any way as an admission of fault for creating the virus. Nope. Nuhuh.”
China’s government highlighted the following services with explanations:
1. People’s Liberation Army Knowledge On Line (PLAKO)
In addition to fast connections, users can learn about People’s Liberation Army (PLA) careers, connect with PLA friends, and access training for totally nonaggressive skills like building military facilities on remote islands or driving tanks through civil demonstrations. PLAKO encourages all military users to post deployment pictures with geolocation. This site also connects the PLA Navy with anyone who has skills with aircraft carrier design, maintenance, or deck landings. Like, any skills at all.
With a giant server nestled in the Ministry of Public Security, SurfPanda offers excellent speeds, availability, and convenient fields to list political beliefs. SurfPanda protects military users by blocking content deemed as unsuitable by a panel of open-minded censors. Get lightning fast connections to any website around the world that is not critical of China.
3. Uncle Xi’s House
This site uses powerful servers to present information on Chinese Communist Party membership benefits such as social networking, exclusive access to Beijing’s hottest clubs, and training in suppressing political dissent. Users get access to the popular “Commie Mingle” dating site and can win free Huawei phones for hot Party talk.
4. 23 Million and Me
China has millions of American DNA profiles but that’s not nearly enough. Service members can submit their DNA to learn about their ancestry and if they’re in an ethnic group that needs government control, like Uighurs. To ensure safety from the People’s Armed Police, this site uses the most up-to-date firewalls produced by the People’s Armed Police.
Xi also announced that, in a complete coincidence, the entire population of Wuhan has voluntarily relocated. Wuhan has also been renamed “Qīng Bái,” the Mandarin term for “innocence.”
Proud Boys Lawyer Suspended for 6 Months. But He Suggests He Wouldn’t Have Been Busy Anyway
Decatur solo practitioner Jason Lee Van Dyke, an attorney with a history of lawyer discipline sanctions, was suspended from practicing law for six months, followed by a year of probation.
An attorney accused of obstructing justice by interfering with a witness in a pending criminal case was suspended for six months, followed by one year of probation.
Decatur solo practitioner Jason Lee Van Dyke, an attorney with a history of lawyer discipline sanctions, said the COVID-19 pandemic was delaying his trial, and he chose to take the suspension during a time most lawyers aren’t practicing much anyway.
“I had to choose between attempting to run a law practice with this hanging over my head,” he said. “Or I could take the six month active suspension and reopen my business in six months.”
The original petition in Commission for Lawyer Discipline v. Van Dyke alleged that Van Dyke was charged with filing a false report to a peace officer, because of a false statement about an alleged theft of his firearms.
While jailed, Van Dyke told his father to tell a state’s witness not to answer the door and to “make himself scarce,” the petition said. The court in the criminal case found in January 2019 that Van Dyke was wrong in making the witness unavailable. In the end, Van Dyke pleaded no contest to the charge and got probation for two years, said the petition.
“I did deny their allegations, and I still deny them,” said Van Dyke about the lawyer discipline case.
Visiting Judge Dennise Garcia, who was appointed to preside over the disciplinary case in Wise County’s 271st District Court, ruled that Van Dyke committed professional misconduct. She found he engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, and that his conduct amounted to obstruction of justice.
Claire Reynolds, a spokeswoman for the State Bar of Texas Office of Chief Disciplinary Counsel, which represents the lawyer-discipline commission, declined to comment.
‘Spread the word’
Van Dyke’s profile on the State Bar of Texas website shows that he has a disciplinary record.
He was put on probation in 2018 in an agreed judgment that found that he was representing a plaintiff, and that the defendant in that case ended up filing a grievance against Van Dyke. Van Dyke then threatened the complainant with criminal or disciplinary charges to gain an advantage in the civil matter, according to court documents. And he kept representing the plaintiff, even though his own interests were adverse, the judgment said.
Van Dyke was suspended from practicing law in March, April and May of 2019, followed by probation that just ended on Feb. 29. In that case, a grievance committee entered an agreed judgment that found that Van Dyke threatened a complainant, Thomas C. Retzlaff, with physical violence, which is a criminal act that reflects poorly on an attorney’s honesty, trustworthiness or fitness.
Retzlaff filed the complaint in Van Dyke’s current discipline case. The pair are also embroiled in litigation in federal court, with Van Dyke suing Retzlaff for defamation.
Retzlaff in an email, “I feel it is very important to spread the word about people like Van Dyke.”
And this will never not be funny…
We are saving room in this article to add more stuff tomorrow. So be sure to come on back and CHECK IT OUT!!