A Lesson In How Not To Do A Defamation Threat, Courtesy Of Lawyer Casey Cummings

Oh, the defamation threat letters we see. They are all too frequent. Thankfully, some people know how to respond to them well. This one was found via Popehat and involves NY lawyer Michael Popsis receiving a defamation threat letter written by Florida lawyer Casey Cummings on behalf of his client David Shavolian. Shavolian got some attention a few years back when a sexual harassment lawsuit was filed against him by a former employee. The allegations in the lawsuit were somewhat salacious, leading to news coverage, such as in the Daily News, which posted the headline: “Boss made her stand beside him while he urinated: harassment suit.” The allegations in the lawsuit itself went even further, including the following (as laid out in the ruling in the case):

Popsis had written about the case, but not the particularly tabloid worthy aspects of it. Rather, he had focused on the benchslap that Savolian’s lawyer had received for trying to get the case dismissed by arguing that the allegations, if true, did not fit under the state’s anti-harassment laws. The judge found that to be quite incredible:

This Court is aghast that any attorney would, with a straight face, claim that the conduct alleged (which, solely for purposes of this motion, is deemed to be true) does not fit squarely within the City and State anti-discrimination and anti-harassment laws. Talk about a hostile work environment! If defendants are correct, these laws, and similar ones throughout the country, would have to be scrapped as ineffective and rewritten from scratch. Based on the totality of the complaint, including matters not mentioned above, defendant Shavolian seems to have hired plaintiff principally so that he could sexually harass her, and, once she was beholden to him for her employment, to have followed through completely.

[I]f plaintiff is to be believed, Shavolian showed his true colors well before he hired her, and, conceivably, plaintiff accepted employment with the idea of bringing this lawsuit. Be that as it may, the City and State have made clear that the conduct alleged is unacceptable in the workplace and have imposed liability for it (and, in this Court’s humble opinion, rightfully so).

Quite a classic benchslap, which Popsis found interesting. Now the letter from Shavolian’s current lawyer, Casey Cummings, argues that that post about the benchslap is somehow defamatory. It does not, of course, include any clear explanation of what factual statements are defamatory (because that would be difficult). Rather, all it does is include a somewhat bizarre declaratory defamation ruling from the state of Florida… filed against “Anonymous John Doe 1.”

Seriously, go look at how questionable that lawsuit is. It is super sketchy. It highlights three sites that it declares are “defamatory” including the NY Daily News story linked above, a blog post at The Real Deal (a blog about NY real estate) and a link at Ripoff Report highlighting the story. The blog post at the Real Deal appears to be gone, but the others still remain.

But notice what the lawsuit says. It does not accuse the NY Daily News of defamation. It does not accuse The Real Deal of defamation. It does not accuse Ripoff Report of defamation. It accuses “Anonymous John Doe 1” of writing the content on all three of those sites. Really. And then, it says that “Anonymous John Doe 1” may reside in Florida, to give the court jurisdiction.

The Defendant may reside within the State of Florida, although the actual residence of the Defendant is unknown in that the Defendant has chosen to publish the Digital Defamation anonymously on an Internet Service Provider (ISP) known as Therealdeal.com, Nydailynes.com and Ripoffreport.com. Any attempt at service of process so as to obtain in personam jurisdiction would be a futile act based upon the Defendant’s concealment of his identity and place of residence.

Got that? This anonymous John Doe 1 has used these three “ISPs” to publish “digital defamation” anonymously. Even though the article in the Daily News has a byline. And while the original story on The Real Deal is down, a quick check shows that its stories appear to carry bylines as well.

From there, the lawsuit makes a bunch of bizarre claims, without ever actually identifying the “defamation” in question. At first, I wondered if maybe it was referring to comments posted below those articles, but if that’s the case, it should have made that point much more clearly. But, in paragraph 30 of the complaint, it makes it clear that it’s talking about the original articles themselves, because it notes that “the various titles of the Digital Defamation are…” and then lists the titles of the original posts themselves, rather than, say, comments beneath them.

The only potentially defamatory claim stated was about whether or not Shavolian had been arrested — which is alleged in a comment below the Ripoff Report story, but is clearly not in the original Daily News story. The lawsuit goes on to (incorrectly) cite Section 230 of the CDA to say that Shavolian cannot sue the Daily News, Real Deal, Ripoff Report or Google (hang on, we’ll get back to that) directly for defamation. We’re big believers in Section 230 protections around here, but while they would apply to Ripoff Report and Google, if he’s really claiming the original articles on the Daily News and Real Deal were defamatory, then Section 230 wouldn’t apply. It only applies to the intermediaries, not the original publishers.

Finally, to top it all off, having pretended that “Anonymous John Doe 1” wrote the articles at the Daily News and the Real Deal, and claiming that he can’t sue those sites directly and then saying it would be impossible to identify Anonymous John Doe 1, he requests a declaratory judgment in his favor since Anonymous John Doe 1 will obviously not show up in court.

It’s pretty clear what the intention here is: get a confusing/confused court ruling saying “defamation” to then wave around to threaten people into taking down stories that are not defamatory. Since no Anonymous John Doe 1 was identified, and because the Florida court apparently didn’t even do the most basic review of the details here, it gave a ruling in favor of defamation — using some more procedural nuttiness, saying that it was “in rem” — a ruling against the content itself, rather than the person (I’m not even going to dig down into how ridiculous a rabbit hole that is…). And then, based on that, it issued an order that “Anonymous John Doe 1” remove those three web pages and, on top of that, that Google, Yahoo and Bing remove those links from their search results.

And, yes, that’s really, really sketchy. It seems like a backdoor way to get a court to claim “defamation” without allowing a defense, and then being able to wave that ruling around to try to take down stories that almost certainly are not defamatory.

Shavolian’s lawyer in that case, Steven Andrews, played some interesting games there. I don’t see how it could possibly be appropriate to tell the court that “Anonymous John Doe 1” wrote the articles at The Daily News and The Real Deal, when even a glance at those pages would show otherwise.

And, finally, that brings us back around to the letter that a different lawyer representing Shavolian, Casey Cummings, sent to Pospis arguing that Pospis’s post about the benchslap was somehow controlled by this nutty ruling, and thus he needed to take it down. Even leaving aside just how sketchy and questionable the original ruling is, Pospis’s post didn’t reference any of the three links listed in that ruling at all. The whole thing stinks of trying to mislead.

Unfortunately for Shavolian and Casey Cummings, Pospis actually understands the law and sent a lovely response along with an even more detailed blog post that highlights other reasons why this is frivolous, beyond even those discussed above. Pospsis didn’t even bother to dig into the ridiculous Florida ruling and what is alleged there. Instead, he just makes two other key points.

First, even if what Pospis wrote was defamatory (which it wasn’t), the statute of limitations on defamation in NY is one year. And his post was published more than a year ago. In the letter, this is expressed deliciously by citing the NY statute followed by “see also a calendar.” Second, there is absolutely nothing in Pospis’s post that even remotely approaches anything defamatory. In his letter, Pospis points to the hallmark of defamation bullies: the failure to cite a single statement:

In that vein, I note that you fail to identify even a single false statement of fact in the post that you have falsely and irresponsibly characterized as “defamatory.” As such any defamation action commenced in New York would be patently frivolous and subject the plaintiff and/or its attorney to sanctions, including attorney’s fees.

In the blog post, Pospis goes further, noting that his original post was commenting on a matter of tremendous public interest, involving public court documents. He concludes:

I have zero tolerance for bullies who threaten to misuse defamation law to censor protected expression. I certainly hope, for the sake of his practice and his clients, that Mr. Cummings has better things to do with his time than threaten out-of-state lawyers with meritless defamation lawsuits.

It is indeed a dark day for free expression when lawyers are dissuaded, under the threat of litigation, from writing about and/or commenting on judicial proceedings. Free speech is more likely to die by a thousand ostensibly innocuous cuts (e.g., threats like Mr. Cummings’), rather than by sweeping legislative reforms, constitutional amendments, and the like.

It still is quite amazing how frequently people (including some lawyers) think that if they can throw around semi-official looking claims, people will ignore the details. Sometimes, though, it backfires in a big, bad way.

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