Courts

D-List Celebrity Has A+ Lawsuit Against SLAPP

Plaintiff brags his way out of a case.

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Slap text in comic splash iconKathy Griffin might not be on the D-List anymore. She used to have a reality show called My Life on the D-List, but that ended up catapulting her career so maybe it’s a C-List now? I’m not an expert at tracking these things. In any event, Griffin used her star power to amplify a viral video showing a Tennessee man, Sam Johnson, harassing a high school boy wearing a dress to prom. The jerk ended up losing his gig as CEO of a telehealth company and decided to sue Griffin as the midwife of the consequences of his own actions.

The district court kicked the case to the curb for lack of personal jurisdiction because, outside of her recurring guest role on Seinfeld, Kathy Griffin has no connection to Tennessee. But Johnson appealed and we’re off to the Sixth Circuit.

Griffin is represented by Holland & Knight and Greenberg Traurig and her brief focuses on this jurisdiction question and, in the alternative, argues that Johnson failed to state a claim for various reasons. Normally, I’d link to the brief here, but PACER is refusing to allow downloads right now because it’s a “$2 Billion system” that’s utterly useless.

But an amicus brief filed by TechFreedom with pro bono assistance from Geoffrey Pipoly, Annie Avery, and Jean-Claude André of Bryan Cave Leighton Paisner LLP, addresses another key factor in the case — the fact that Johnson’s ego torpedoed his own case.

SLAPP cases are bad. Strategic lawsuits against public participation weaponize the legal system to squelch free speech by throwing annoying and costly hurdles in the way of speakers to get them to abandon the public square altogether. In addition to raising key points about the proper interaction of a world-wide web with personal jurisdiction, the amicus asks the court to do society a solid and take a stand against SLAPPs.

Because a filer cannot state explicitly that their lawsuit’s primary purpose is to stifle protected speech, SLAPPs typically “masquerade as ordinary lawsuits.”

This case, however, is unique. Its filer, Mr. Johnson, has effectively admitted that this case is a SLAPP, brought with the aim of stifling the speech of his critic, Ms. Griffin. On April 7, 2023, Mr. Johnson was asked by a user on Twitter how his lawsuit against Ms. Griffin was going. In response, Mr. Johnson did not say that his lawsuit was going well because he expected to prevail on the merits of his claims. He did not say that his lawsuit was going well because he looked forward to receiving compensation for having been terminated from his job. Rather, Mr. Johnson said that his lawsuit was going well because Ms. Griffin had not “mentioned any private citizen by name online since 2021,” an accomplishment he further described as a “[b]ig win for the common folks.”

(citations omitted)

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Between Trump, Ron DeSantis, and this guy, it’s a sad reality that a free and open society hinges mostly on the complete inability of stupid trolls to keep their mouths shut. If these folks could stop bragging about their “clever” bad faith acts it would be a lot harder to squash them in court.

In the Johnsons’ world, Ms. Griffin should be liable in tort for nothing more than making comments—themselves protected by the First Amendment—about Mr. Johnson’s own public behavior. In the Johnsons’ world, Ms. Griffin should be liable in tort for republishing a video of Mr. Johnson’s own public behavior, even though the Johnsons do not dispute that the video contains no lies. But in the real world, the law does not work that way.

Ha. Honestly, this brief is the literary equivalent of dropping successively bigger anvils on the Coyote for 20 minutes.

“Mr. Johnson is free to say whatever he wants in public, and do whatever legal things he wants in public,” Pipoly said. “What he should not be permitted to do is use the courts as an instrument to silence his critics for just commenting on what he did in public.”

Bad SLAPPs like this one get filed all the time and that’s why it’s so important to have amici focusing on these abuses of the legal system when the defendant’s counsel might overlook that angle in favor of the airtight jurisdictional argument.

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Although the First Amendment may ultimately hand a SLAPP target a victory on the merits, the damage has been done: the process is the punishment. And the costs imposed on SLAPP targets are substantial indeed, especially to ordinary Internet users: a recent calculation estimates the cost of defeating a meritless defamation lawsuit at between $21,000 and $55,000.

Defendants should get fees and the courts should award even more fees when the inevitable “strategic appeal against paying the price” — a SAAPP if you will — fails. While some states have taken the plunge on anti-SLAPP legislation it should be a priority everywhere.

But this is America so instead we’ll complain about a fake free speech “crisis” instead of doing anything about it.

TechFreedom-Griffin-Amicus-Brief-June-2023

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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