Monday, September 17, 2018

Popehat blogger trashed me to The New York Times, but his words about Hulk Hogan lawsuit against Gawker prove his thinking is an inconsistent mess

Ken White, of Popehat blog
You might expect that a First Amendment "expert" would be able to produce consistent thoughts in his area of specialization. But if you are looking for consistency from Ken White, Los Angeles-based attorney and proprietor of the Popehat blog, you likely will be disappointed.

White wormed his way into our lives by trashing me in a New York Times article about my unlawful arrest and incarceration in fall/winter 2013-14 -- all growing from a defamation lawsuit by Alabama GOP thug Rob Riley and his "close friend," lobbyist Liberty Duke.

After acknowledging that Judge Claud Neilson's temporary restraining order and preliminary injunction were unlawful prior restraints under the First Amendment, White decided to engage in classic "blaming the victim." From The Times' article, by reporter Campbell Robertson:

“You’ve got a situation where sometimes there’s no good guys,” said Ken White, a former federal prosecutor in Los Angeles who writes about and practices First Amendment law. . . .

. . . Mr. White and others say that before a judge can take the step of banning speech, libel must be proved at trial, or at least over a litigation process more involved than a quick succession of hearings, with the only evidence presented by the plaintiffs.

“Idiocy is not a zero-sum game,” Mr. White said. “I think you can say that what the court is doing is unconstitutional and troublesome and also that Shuler is his own worst enemy.”

Does White present any examples that cause him to conclude that I'm "not a good guy" in this matter -- or that "I'm my own worst enemy"? Nope. Is is possible Mr. White and Mr. Robertson were both being just a tad disingenuous? Yep.

Robertson mentions that the National Bloggers Club (NBC), a group led by the Republican activist Ali (Akbar) Alexander, had threatened to sue me for defamation, while failing to mention they had no grounds, under the law, for such a lawsuit, and they never actually filed one. Robertson also neglected to mention that, in the weeks leading to my arrest, Akbar's gang of right-wing mouthbreathers published numerous posts claiming I was "RogerS," a commenter at a liberal blog who was encouraging left-wing activist Brett Kimberlin to file a RICO lawsuit against the NBC. I, of course, was not RogerS and had nothing to do with the Kimberlin-NBC contretemps.

Hulk Hogan, at Gawker trial
Most glaringly, Robertson failed to mention that White had publicly supported the Akbar gang -- even though Akbar himself has a criminal record on the felony level and a history as a troller for gay sex on the Grindr geosocial app -- and even tried to arrange legal help for them in the Kimberlin case. In fact, White sought help for the NBC in a post dated Oct. 20, 2013, three days before my arrest. Hmmm.

Of all the lawyers in the country with knowledge of the First Amendment, Campbell Robertson sought out Ken White (from California) about my case (in Alabama)? And White just happens to be the guy who supported the right-wing blogging loons who had attacked me based on a rumor that had no basis in reality? Again, hmmm.

Even more curious is that White does not seem to agree with himself regarding the First Amendment issues in my case. In 2016, White wrote about the Hulk Hogan lawsuit, funded by Silicon Valley billionaire Peter Thiel, that put Gawker Media out of business. From White's Popehat post on the subject:

Gawker has occasionally provided quality journalism and entertainment. That doesn't stop me from despising its amoral and repulsive ethos. Gawker's utter destruction produces a feeling of glee in my guts but disquiet in my heart. As I've written before, I'm not sure that the ruinous verdict against Gawker was just, I don't think that the amount of damages awarded was defensible, and I'm concerned that the result was a product of the brokenness of our legal system.

But observers seem eager to push the wrong message about that brokenness. The scary part of the story isn't that the occasional vengeful billionaire might break the system and overwhelm even a well-funded target with money. Such people exist, but getting sued by them is like getting hit by lightning. No, for most of us the scary part of the story is that our legal system is generally receptive to people abusing it to suppress speech. Money helps do that, but it's not necessary to do it. A hand-to-mouth lunatic with a dishonest contingency lawyer can ruin you and suppress your speech nearly as easily as a billionaire. Will you prevail against a malicious and frivolous defamation suit? Perhaps sooner if you're lucky enough to be in a state with a good anti-SLAPP statute. Or perhaps years later. Will you be one of the lucky handful who get pro bono help? Or will you be like almost everyone else, who has to spend tens or hundreds of thousands of dollars to protect your right to speak, or else abandon your right to speak because you can't afford to defend it?

The system isn't just broken for affluent publications targeted by billionaires. It's broken for everyone, and almost everyone else's speech is at much greater risk. Don't point to Peter Thiel as an exception. He's just a vivid and outlying expression of the rule.

So, there you have it: Ken White admits courts allow plaintiffs (like Rob Riley and Liberty Duke) to abuse the system, by filing malicious and frivolous lawsuits, in order to stifle free speech -- and this was roughly three years after White had admitted an Alabama court ruled unlawfully against me.

Why in the hell was this guy trashing me to The New York Times? I have some thoughts about that, but first, I have another example of Popehat's confused and inconsistent thinking.

(To be continued)

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