Consider defendant lawyers Rob Riley and Christina Crow, who claim our constitutional arguments must fail because the lawyers are private, not state, actors. But a U.S. Supreme Court ruling that is closing in on being 40 years old, blows a hole in the Riley-Crow contentions. From our reply brief (which is embedded, along with our appellants' brief at the end of this post):
But this argument fails because Riley simply cannot get around the U.S. Supreme Court’s finding in Lugar v. Edmondson, 457 U.S. 922 (1982): “Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.” This is exactly the kind of unlawful collaboration that led to Roger Shuler’s arrest and incarceration, making Riley and Co. state actors.
Crow tries a similar approach, but it also fails. From our reply brief:
Crow’s private-actor argument fails for the same reason the Riley argument fails above, at No. 10, per the U.S. Supreme Court finding in Lugar. Crow’s legal argument on the “state actor” issue fails on other grounds. For example, she cites Willis v. University Health Services, Inc., 993 F. 2d 837 (11th Cir., 1993). But that case was decided at summary judgment, after extensive discovery, and provides no support for Crow’s claim that the Shulers’ complaint should be subject to a motion to dismiss. The same is true of Rayburn v. Hogue. In short, Crow provides zero legal basis for her “state actor” argument.
Attorney David Gespass, who visited me twice in jail and offered no strategy for gaining my release and seeking justice against those who caused my wrongful arrest, takes an interesting approach to allegations that he made false and defamatory statements to another attorney about me. Gespass doesn't really deny that he made defamatory statements to Paul Alan Levy, of Ralph Nader's Public Citizen in Washington, D.C. Rather, Gespass claims he made the statements outside the statute of limitations, so the defamation count should be dismissed.
But that is not the only consideration. Alabama's discovery rule means the date I discovered the injury to my reputation also is a prime factor. On top of that, Gespass makes some odd arguments along the way:
Gespass’ time-bar argument regarding the Shulers’ defamation claim also fails. Gespass does not deny that he spoke to D.C.-based lawyer Paul Alan Levy and made false and defamatory statements about Mr. Shuler to Levy. Gespass acknowledges in a previously filed document (Motion to Dismiss) that the statute of limitations in the instant case runs to March 26, 2014. On page 4 of that motion, Gespass acknowledges that his defamatory statements to Mr. Levy took place before March 27, 2014. In other words, Gespass admits his defamatory statements were made inside the March 26, 2014, window, while Roger Shuler still was incarcerated, but yet he tries to claim they are time-barred. A key question, which Gespass conveniently ignores, is: When did Shuler learn of the defamation? Roger Shuler communicated with Mr. Levy a second time, on Oct. 16, 2016, and Levy related several defamatory statements that had been made to him by “another First Amendment litigator.” Shuler states that David Gespass is the only other First Amendment litigator with whom he has ever communicated, so it clearly was Gespass who made the defamatory statements to Levy – and Gespass, in his Motion to Dismiss, does not deny it. Also, the defamation claim, coming on statements of 10/16/16, is not time barred.
Rollins falsely claims the Shulers have supported their defamation count with “bare, conclusory allegations . . . without any factual support.”Strangely, Rollins follows this assertion with a full page of factual allegations from the Shulers’ complaint, supporting the defamation count. That doesn’t count the roughly 35 pages of direct evidence, attached as exhibits to the Shulers Rule 59 motion (Doc. 162), supporting their defamation count. Much of this defamatory material remains on the Web today.
Rollins and Co. aren't the only ones trying to wriggle off the accountability hook. Tech giant Google allegedly sold ads to someone associated with Rollins to help promote their defamatory Web sites. Google claims responsibility should not land at its feet:
Google’s primary argument is that Sec. 230c of the Communications Decency Act (CDA) protects if from liability for selling advertising to the owner of a Web site that promotes defamatory material. First, Google claims Sec. 230c bars any claims against Google for content that was created by a third party. Sec. 230c, however, does not say that; it says: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Also, there are no facts in the record that content in the ad was created by a third party. Google further cites a district-court case – Am. Income Life Ins. Co. v. Google Inc. – for its holding that Google is immune under Sec. 230 for allegedly defamatory content found on Web sites. First, Am. Income is not controlling law in the Eleventh Circuit. Second, it involves allegations that certain Web sites published defamatory information that appeared on Google searches. In other words, Am. Income involved Google’s role as a service provider. The instant case, however, involves Google’s role as a seller of advertising – a business that reportedly produces about $14 billion annually. There is nothing in Sec. 230 that protects a distributor of ads for a defamatory Web site. The issues here involve Google’s role as a purveyor of advertising, not as a service provider. Google claims that it allows third-party advertisers to display ads on Web sites, while Google itself plays a benign role. First, the $14 billion in revenue that Google reportedly receives from its advertising business hardly suggests a benign enterprise. Second, Google’s own Web site for AdSense states: “Ads are reviewed to ensure they’re high quality and relevant to your content or audience . . . .” Google admits that it is supposed to review ads – and presumably is supposed to review the Web sites to which the ads refer -- but someone failed miserably with the ad at issue in this case.
So, Google makes about $14 billion a year off advertising and admits it is supposed to review ads for quality, but it claims no responsibility for running ads that promote blatantly defamatory Web sites.
We haven't even gotten to the most outrageous claim from defendants in "The Jail Case" appeal. We will address that in an upcoming post.
(To be continued)