[Thomas Leavitt is of course a frequent contributor to Politech. --Declan] --- Date: Tue, 06 Jan 2004 12:36:55 -0500 From: "Paul Levy" <plevy@private> To: <declan@private> Subject: Big victory for the free speech -- the right to boycott We have recently received an order from Judge Guzman granting the motion of Talk Radio Network to dismiss the lawsuit that it brought against Thomas and Gunilla Leavitt, among others, for their web sites denouncing talk radio host Michael Savage and urging consumers to contact Savage's advertisers to express their outrage at his bigotry. The "voluntary" dismissal was filed on the day that TRN was finally due to file its response to our motion to dismiss. One word to the wise when people have to defend these cases -- we have been finding that when we couple a motion to dismiss for lack of personal jurisdiction with a motion to dismiss because a complaint does not present a valid claim under the First Amendment, many judges are refusing to address the request for dismissal on the face of the complaint without FIRST requiring the defendant to submit to discovery on the issue of personal jurisdiction. The rules require all grounds for dismissal to be joined in a single motion at the outset of a case, so it is not clear how to avoid this problem, but I raise it for consideration. In the Leavitts' case, for example, the judge deferred briefing on the motion to dismiss to allow the plaintiff to take discovery. Understandable at one level, because many cases say that discovery is allowed to determine whether there might be a basis for personal jurisdiction; yet that fact gives plaintiffs with meritless suits an incentive to seek discovery as a way to keep applying the financial pressure that the suit is intended to impose on a critic. And many judges will not require briefing BEFORE the discovery, because they only want to consider the motion to dismiss once. Ironically, though, we used this order as a basis for taking our own discovery on jurisdiction, inquiring into the nest of interlocking companies established by the Foundation of Human Understanding (which owns Talk Radio Network) to determine whether the citizenship of the "real" plaintiff was in California, which would prevent them from maintaining suit in federal court based on diversity of citizenship. We will never know whether it was the threat of this discovery or the need to answer our motion to dismiss that ultimately persuaded TRN to throw in the towel (somebody else in litigation against TRN will have to pursue that one). Still, this strategy of countering discovery with discovery is not one that can be done cheaply, and the possibility that the litigation will be expensive and more time consuming makes it harder for defendants to find pro bono representation. If, for example, we did not have donations to support our work, and the support of Jenner and Block as our local counsel, and other private practitioners who were providing pro bono representation of the Take Back The Media web site (a complete list is in our press release below), we might well not have been able to pursue this discovery strategy for the Leavitts. More important, if we want to come up with the best legal protection against this sort of harassing litigation, we really need to find ways to get the cases dismissed on their face. Anyway, a nice victory for free speech (and for your list, which is how the Leavitts found us in the first place). Here is our press release: Talk Radio Network Drops Suit That Aimed to Shut Down Web Sites Critical of Right-Wing Radio Host WASHINGTON, D.C. - The Talk Radio Network today dropped a suit aimed at shutting down Web sites that urge people to boycott companies that advertise on a nationally syndicated right-wing radio show. The suit was filed against four people who operate three Web sites critical of right-wing radio host Michael Savage. Public Citizen, which has a history of defending speech on the Internet, is representing two of those Web site operators, Thomas and Gunilla Leavitt of Santa Cruz, Calif., who created www.savagestupidity.com. Their site, which Public Citizen defended on First Amendment grounds, criticizes offensive and bigoted comments made by Savage, who rails against African-Americans, Hispanics, Jewish liberals, women, gays, liberals and a variety of other groups on his show, "Savage Nation." The Web site also has audio clips from the show and calls for the public to write letters to Savage's advertisers urging them to withdraw their support from his program. The Web site urges the public to boycott advertisers who continue to support Savage. The Talk Radio Network, based in Grants Pass, Ore., filed suit on May 12 in the U.S. District Court in the Northern District of Illinois, alleging that the defendants are running commercial Web sites that make false and malicious statements about Savage and attempt to interfere with Talk Radio Network's relationships with advertisers, specifically Culligan, an Illinois-based company. The suit asked the court to shut down the Web sites and force the operators pay several hundred thousand dollars in damages. In a brief (posted at http://www.citizen.org/documents/leavitt%20dismiss%20memo.pdf) filed in June, Public Citizen argued that the network's suit was flawed in many ways. First, it was filed in the wrong court, because the Leavitts live in California. Second, the site expressed the Leavitts' opinion about Savage, and the statements they made about him are to their knowledge true, so the criteria for libel of a public figure were not met. Finally, the network argued that the posting of clips of Savage's show violated its copyright, but the U.S. Supreme Court has repeatedly made clear that such a "fair use" of material is protected under the First Amendment. "The Leavitts have every right to criticize Savage's statements. Also, calling for a boycott is a time-honored action that has long been protected by the First Amendment, and the court would have recognized that," said Paul Alan Levy, an attorney with the Public Citizen Litigation Group who represented the Leavitts. "We're pleased that the company has seen fit to drop its case." David Layden and David Bradford of Jenner & Block were local counsel for the Leavitts. Julie Trester of Meckler, Bulger & Tilson in Chicago, and Gregory Todd, a solo practitioner in New York, represented the other main defendant in the case. ### Paul Alan Levy Public Citizen Litigation Group 1600 - 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 http://www.citizen.org/litigation/litigation.html --- Date: Tue, 06 Jan 2004 12:40:22 -0500 From: "Paul Levy" <plevy@private> To: <declan@private> Subject: An additional thanks Mime-Version: 1.0 Our press release should also have mentioned Lee Werdell, a private practitioner in Medford, Oregon, who was our local counsel in the discovery dispute with TRN Paul Alan Levy Public Citizen Litigation Group 1600 - 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 http://www.citizen.org/litigation/litigation.html _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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