In the United States we value freedom of speech, and we particularly value freedom of political speech. Sometimes there are attempts to stifle political speech through the courts, and one such attempt is labeled SLAPP.
A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
The District of Columbia, where the WorldNetDaily lawsuit against Esquire Magazine was filed, has a new anti-SLAPP law. The DC law provides for expedited dismissal of SLAPP suits. Does it apply to this lawsuit?
- The Erie Doctrine – Wikipedia
- Washington City Paper motion and memorandum made invoking DC anti-SLAPP statute albeit not in a diversity jurisdiction.
I don’t know about the DC law in particular, but in my own jursidiction (Massachusetts), an anti-SLAPP motion will fail unless the defendant was engaged in “petitioning”, i.e., petitioning the government. The archetypical example is the neighbor who asks a local zoning board of appeals not to approve a developer’s request for a variance in the neighborhood, and the developer sues for libel or whatever, based on the presentation the neighbor made to the ZBA. If the DC statute is this kind of statute, I wouldn’t think that an anti-SLAPP motion would work, as Esquire was not petitioning the government. But of course, Esquire probably has good First Amendment defenses.
The lawsuit against Esquire invokes diversity of citizenship subject matter jurisdiction. Under the Erie doctrine, a federal court sitting in diversity will apply the state law of the state (or D.C.) where it is located if the law is substantive (i.e., creating or affecting the legal rights of one of the parties to the lawsuit); if the law is procedural (i.e., dealing with procedures in place to enforce a litigant’s rights), then federal law applies. Erie will only be applied if the federal and state laws conflict. Although there is no federal anti-SLAPP statute, the application of state anti-SLAPP laws in diversity will always present an Erie issue because anti-SLAPP laws clash with the Federal Rules of Civil Procedure (FRCP).
Erie becomes incredibly complex where laws have both procedural and substantive elements or when the distinction between procedural and substantive is not easily made. (Also, my summary above is a gross oversimplification.) If I remember correctly–it has been several years–my first year Civil Procedure class spent at least 2 weeks on the Erie doctrine.
Federal courts have not been consistent in interpreting whether state anti-SLAPP laws are procedural or substantive. For example, the Ninth Circuit has held that CA anti-SLAPP statutes can be invoked in diversity actions in CA federal courts; the First Circuit, on the other hand, has found that ME and MA anti-SLAPP statutes should not be applied because they are procedural in nature.
To my understanding, the D.C. anti-SLAPP statute went into effect on March 31, 2011. Therefore, I think it is highly unlikely that there is a definitive answer to whether the D.C. federal court sitting in diversity would apply the D.C. anti-SLAPP statute, at least at this time.
Where did you find the picture of Farah’s Mom and Dad for this article?
Thank you very much for sharing your expertise.
The DC ant-SLAPP law is very new, but has already been invoked in a very high profile case against a local give-away newspaper, the DC CityPaper.
Snyder owns the Washington Ethnic Slurs, a pro football team, and took affront at an article in the CityPaper. He first filed in NY, but refiled in DC. Snyder’s lawyer at one time said that the intent was to bankrupt the alternative newspaper.
The paper started an onlne legal defense fund. I mean to go to their site later today to make a contribution, because this, like the suit against Esquire, is a truly First Amendment threat, an effort to use the governmental tort system to drive an honest opinion expressor out of busines.
This case and any ensuing court opinions should be an interesting precursor to the Esquire suit.
DEREK’S PDF AKA Obama’s Long form Birth Certificate
Opening Obama’s long-form PDF file in Microsoft Word 2007 in US ASCII reveals the following:
…4 0 obj
x M ;n 1
Is Derek the name of the forger of Obama’s long form Birth Certificate????
[Well documents don’t scan themselves. Somebody had to do it. I guess Derek is a good a name as any. Besides, everybody knows the forger’s name is Mike. Please try to keep up. Doc.]
from WND’s filing “…caused confusion, mistake and deception through their publication of false and misleading information and description of fact…”
that’s confusing, is WND sueing themselves?
The outcome of the motion in the Snyder case may be useful for understanding the legal application of the D.C. anti-SLAPP statute, but it will tell us nothing about whether Esquire can invoke the protection of the anti-SLAPP law in federal court: the Snyder case was filed and (as far as I can tell) is proceeding in the Superior Court of the District of Columbia, which is equivalent to a state trial court.
A state’s anti-SLAPP law can, of course, be resorted to in that state’s trial and appellate courts. But how state courts apply their own anti-SLAPP statutes does not, generally have significant influence on a federal judge’s Erie analysis: In theory, the rationales underlying the Erie doctrine tell us that federal judges should defer to a state’s legislative or judicial determinations on whether its own laws are substantive or procedural in nature. In practice, however, there are too many examples in the Erie doctrine case law, where federal judges, on all levels, reach conclusions about the nature (substantive vs. procedural) of a state law that are wholly incompatible with a state’s jurisprudence on the subject.
Sorry, John, but that file does not contain the “Derek” string. MS s/w is well known for modifying files when you least expect it. You need to use something like wordpad or notepad or Quick View. And don’t use internet explorer to download the file. Get yourself a real browser like firefox. BTW, what’s Bo up to lately?
I verified that it’s there under the conditions John describes. The reason it’s not apparent is because of the encoding.
Yep, and it’s a comment, a bit inserted by the creating application, almost certainly the name of a saved custom setting. To me, that endorses the obvious, that someone slapped it on a scanner and hit the button as routine business, no thought to appearance or presentation.
The only comments that are permanent (cannot be altered/tossed by the opening application) in a PDF file are “%PDF-[version]” and “%%EOF”
Like all the other fluff, a bit of data out of context, with no meaning on its own. Certainly doesn’t prove a guy named Derek created the file. It might help identify what Mac it was scanned onto. ’bout it.
That’s why you don’t examine the file “under the conditions John describes”.
There is only one Mac and Ronald is his name-oh.
Eleventy bazillion sold and still going strong.
I looked at a few other PDFs in ASCII (MS Word 2010, though I did download with Chrome), and the BC had far less extra, non-garbage, code. It does make it look like it was “slapped on the scanner” and that was about it.
I did find myself considering that, scrolling through pages of garbage characters was rather similar to reading a birther legal brief. The only difference was that one had a few lines of useful and correct information, and the other was a birther legal brief.
Are they using this to stifle participation or speech or as just another way to get their name and book out their in the more mainstream press? Are they just looking for some free publicity, by any means necessary? It would be telling if they chose to drop the suit at an early stage, prior to any real action. The lawyers in the room may be able to explain how long they can drag this on without suffering consequences when they drop it.
as Corsi’s book has many factual errors, do you think he would wish to be cross examined. No Way, there will be no trial!
> the BC had far less extra, non-garbage, code
It depends on the settings. Some PDFs appear as almost complete ASCII (including the text), others are crammed with binary stuff.
> No Way, there will be no trial
Aren’t Corsi/Farah banned from pursuing their claims by the unclean hands doctrine? Or would that require the act to be more precisely the same (such as “misquoting and misrepresenting is something both sides have done” vs. “… but only Esquire has hurt somebody’s business, so it’s not the same”)?
The case in the D.C. district court. Case No. 11-01179.
WND and Hearst are both Deleware corporations. Warren lives in NYC.
Wrong article numbnuts!
Sorry to continue to be non-SLAPPy here, but I was curious about this “Derek” thing. So i went to my “go-to” tool, the UNIX od command.
“od” gives you a byte-by-byte view of any file, in what its manual page refers to as an “unambiguous representation” of each byte. In short, it lets you see exactly what’s in a binary file without an application trying to get all smart on ya.
What I found is that the second line of the file, bytes 9 through 21, begins with a percent sign, and then is followed by ASCII characters with their highest bit set, and ends with a “newline.”
The specific output of “od -c” for that line is:
% 304 345 362 345 363 247 363 240 320 304 306 \n
If you strip off the high order bit, the octal values are then:
% 104 145 162 145 163 047 163 040 120 104 106 \n
Which (break out your handy ASCII table!) is:
Which is — almost — what John and Dr. C report.
I checked this several times — the character before the apostrophe is definitely an “s”, not a “k” (note that the numeric value is the same as the character 2 places later).
No idea what this proves or disproves, but I thought someone might appreciate some closer-to-the-bone data.
I can show my work more thoroughly if anyone really cares, but I thought this was already getting geeky enough. If so, is there a better thread to discuss this? And is there some way to preformat a chunk of text in a reply?
PS: I’m fully on the “…and none of this matters one whit” side. I’m just nerdy as all hell about this kind of thing.
Hi, me again. A couple of quick expansions on the above:
1. Oops. It really is “%Derek’s PDF” . So never mind that part. (A bug report is heading out to my OS vendor…)
2. I suspect I’m not the only one who winds up gathering lots of PDF files as clutter in their download directory. In my case, I had 664 of them. So I wrote a quick script to see what they have as their first comment line.
It turns out that 80 of them had: “%Derek’s PDF.”
So either one White House intern is responsible for over 10% of the PDF files I’ve downloaded in the last couple of years, or there’s some fairly popular bit of PDF-generatin’ code out there written by someone named “Derek.”
I already posted this info in another thread — “Derek” is Derek Noonburg, who is the programmer who created the open source xpdf program in the 1990’s. That program was incoporated into another piece of collaborative software which was in turn used in the Mac OS software for scanning & PDF conversion application. In other words, Derek is the guy that wrote a piece of the program that Apple now uses in Mac computers to handle the “scan to PDF” function.
You’ll find my other posts about Derek Noonburg in the comments to this thread:
Mr. Noonburg has a post up on his blog about this where he says, “It appears that whoever wrote the PDF generation software built into MacOSX took the string “Derek’s PDF”, set all the high bits, and used that as the comment. I have no idea who wrote that software, but I’m guessing his name just might be Derek.”
My tongue-in-cheek meter is not giving me a good reading on this one.
Well, the timeline is this:
Derek Noonburg writes the xpdf program in the 90’s.
Noonburg is also part of the CUPS (Common Unix Printing System) collaborative.
Apple incorporates CUPS into Mac OS in 2002.
Apple buys CUPS in 2007. See http://www.cups.org/
If it’s not Noonan’s easter egg, then there’s another programmer named Derek…. but it seems to me that he’s still the mos tikely candidate.
So this is how deep the conspiracy goes: an “open source” (read “cahmanist”) project that moves this code into place years in advance of the BC forgery, plus the bug planted in the MacOS “od” command, to make me think the comment actually said “Deres” (As in “de-rez”. Get it? Get it?.
We’re all doomed.