Despite a certain irony in Dan Bilzerian suing TMZ for publishing a story about a woman who claimed to have gotten chlamydia from him, it happened. The story was first published at The Dirty, which makes infinite sense, and then picked up by TMZ. Bilzerian sued the Dirty, and then TMZ. Why? Because he can.
Dan Bilzerian is an Internet celebrity, known for his extravagant, jet-setting and partying lifestyle. He has a particularly strong social media presence on the website <instagram.com> (“Instagram”), boasting over 12 million followers. He regularly shares photographs of himself
posing with scantily-clad women, large sums of cash, expensive cars, planes, firearms, and extravagant homes. He has been dubbed the “King of Instagram” and “Instagram’s Playboy King.”
You can’t tell instagram followers whom to love, right? But then, when a guy has a few bucks, and is willing to part with them, suing media who write about your alleged loathsome diseases is an excellent way to make sure no one writes about stuff that drips from one’s penis. And that’s precisely what Anti-SLAPP legislation exists to prevent.
Strategic Lawsuits Against Public Participation (“SLAPP” suits) are an affront to the freedoms of expression and of the press. Plaintiffs file SLAPP suits against media outlets not because of any objective merit, but to punish defendants for exercising their free speech rights. Such suits have a chilling effect on others who might also be inclined to do so.
TMZ, fortunately, isn’t some small fry in a bathrobe writing furiously into the night, but a successful and well-funded celebrity gossip outlet, owned by Harvey “I’m a lawyer!!!” Levin. What does a lawyer do when someone with a few bucks of his own tries to shut you down with a lawsuit? He hires a better lawyer to smack the miscreant upside the head. Enter Marc Randazza, who promptly filed an anti-SLAPP motion and had Bilzerian’s suit dismissed.
And that’s what should piss off, and embarrass, every legislator in New York. You see, Randazza quickly ended Bilzerian’s attempt to silence unpleasant stories about him with a simple motion. It was prompt. It was effective. It protected the First Amendment right to fairly report on a public figure about a matter of public interest. But there’s more!
Not only did Randazza prevail on the special motion to dismiss, but the Anti-SLAPP statute provides that the miscreant who wrongfully sought to use the courts to silence unpleasant stories has to pay for the legal fees of the target of his misadventure. In this instance, TMZ was awarded $22,000 in attorney’s fees.
In other words, Bilzerian not only got smacked for bringing a frivilous suit against a party for the exercise of its rights under the First Amendment, but he paid the price of their attorney for doing so. It’s not that TMZ can’t afford to defend itself, but why should it? And why should Bilzerian, because he had a few bucks, be able to use them to silence TMZ?
But this only happened because Nevada has one of the most robust Anti-SLAPP laws in the nation. If the suit had been brought in New York, this wouldn’t have been the case, as New York has no anti-SLAPP law. That’s right, big bad New York, bastion of legal sophistication, has nothing. And it’s not just the TMZs of the world who get sued. It’s anyone. And it’s everyone.
Eric Turkewitz made this point over a year ago, on his blog and in the New York Law Journal.
I’ve now been sued twice for defamation over postings I’ve made on my law blog. And you know what? It sucks.
On both occasions, I was reporting on what happened in a courtroom, on cases I was not involved with either as counsel or litigant. And on both occasions judges tossed the lawsuits in the pleadings stage as the suits assaulted my right to fairly report and comment on judicial proceedings. You can’t (successfully) sue people for reporting on what transpired in court, or for their opinions on what happened.
But, you know what else also happened twice? Despite both cases being utterly without merit, and both cases aggressively acting to discourage free and robust newsgathering and discussion, both plaintiffs were able to walk away while I was forced to spend enormous time on my defense including preparing documents, hiring counsel and wrestling with my insurer.
We should have federal anti-SLAPP legislation, but we don’t. Instead, it’s been left to the states to fix the problem in their own courts. It takes little to sue. Any moron can do it. If he can afford the filing fees, the burden shifts to the other side to defend. How much is it worth to keep content on a screen, because the question isn’t whether you’re right or wrong to publish something, but the cost of winning. Without anti-SLAPP legislation, winning still carries a cost, and that cost gets paid out of the content producer’s pocket.
When empty lawsuits are used to retard free speech, all writers suffer.
This problem affects institutions above me in the pecking order of journalistic influence (traditional media) as well as those below (anonymous or pseudonymous commenters in countless Internet forums).
Like Turk, I was part of the Great Rakofsky Suit. Like Turk, Randazza represented me. Like Turk, we won. Like Turk, the New York court not only took forever to decide the motion to dismiss, there being no expedited anti-SLAPP motion, but like Turk, there was no attorneys’ fees, no sanctions, no cost, to Rakofsky for suing the internet. It’s not that we didn’t win, but that he didn’t lose. He tried, and there was no cost to him for his effort to try to silence us. It was our problem, right though we were at all times.
It’s not like the State of New York would have to reinvent the wheel. Nevada already has a statute, a particularly good one, and New York can just glom it up, word for word, yell “aye” and, boom, big bad New York would have an anti-SLAPP law on the books to protect the exercise of free speech and press.
In 2008, both the New York Senate and Assembly took a big step forward when they unanimously passed the Libel Terrorism Protection Act, which protects us from lawsuits in foreign jurisdictions that don’t have the same free speech protections as the First Amendment.
The Legislature should be able to rally around this anti-SLAPP bill in the same manner, and protect the First Amendment rights of all New Yorkers.
Get it done already. This is just ridiculous and embarrassing that we have to look to Nevada for the sound legislation. And if you don’t think this problem happens in New York, bear in mind it’s the home of Trump Tower, where there’s a guy who isn’t antagonistic to using a few bucks to shut down his critics by making it too expensive to disagree.
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If it was utterly without merit, why did he need to hire a lawyer? Why couldn’t he argue it pro se?
Because law isn’t simple and still requires competent representation, even when a suit is frivolous. Actually, especially when a suit is frivolous.
My favorite cases to read are ones where anyone decides to go pro se. Especially when lawyers choose to defend themselves it can get entertaining.
Christopher Jorgenson needs to read the Winkelman lawsuit on behalf of their autistic son. When the lawyer they hired did nothing, Sandee quit her job as a nurse to take ove; Jeff took a second job to support their family. Sandee lost in Ohio district court, then in the 6th circuit–both ruling non-lawyers could not represent their child’s interest. And then the Winkelmans won in the US Supreme Court–not only for themselves but for all parents of special needs children who are denied an appropriate education and cannot finance a lawyer.
Gloria, comments like yours are deeply endearing and extremely dangerous. For every Winkelman, there are ten thousand litigants crushed by the system. Don’t condemn all those people to failure because of one outlier success. Comments like your destroy lives because it gives fools hope. Not even fools deserves to have their lives destroyed. Don’t do it.
I know you are right. To better understand what the Winkelman faced, I researched other cases. What is really sickening is how often school systems deny appropriate eduction to special needs children–all over the nation. I also know few parents could learn law fast enough and thoroughly enough to do this pro se. But if any do, they no longer have the barrier the Winkelmans faced.
This truly is an unique story. But it also shows that despite being rare it is possible for a pro se litigant.
And it’s possible for a college dropout to become a billionaire by starting Facebook. Still, it’s not a good idea. And when it comes to special needs children, all the more reason to never encourage a person to go pro se, as the life lost isn’t theirs, but their child’s.
When the choice is pro se or lawyer, I can agree: lawyer up. But in many other cases, the choice is pro se or Nothing Whatsoever.
Are you saying that in the latter instance, Nothing is the better option?
And, does that calculus change if the choice is “don’t continue”, rather than “don’t start”?
First, it’s hardly that simple. Second, you’re now going way off topic, which you don’t get to do. Third, you’re question begging, as your underlying assumption (But in many other cases, the choice is pro se or Nothing Whatsoever.) is flawed. But since you’ve gone way off topic, this isn’t the place to discuss it.
Back to anti-SLAPP. California is supposed to have the strongest legislation, but once the anti-SLAPP motion is won and an attorney fee awarded, it can be close to impossible to collect. I know of one lawyer who is notorious for filing meritless lawsuits, yes plural, losing, and not paying. That makes it very difficult for his targets to get representation. When the fee shifting of anti-SLAPP doesn’t work, this lawyer may lose the suit he filed but he actually wins.
You can’t get blood from a rock. That’s true of all judgments.
A series of SLAPP suits dismissed for being frivolous, and unpaid judgments based upon them, would seem to be fodder for the disciplinary committee.