Matthew Inman, creator of the Oatmeal, has filed his response to Carreon’s Temporary Restraining Order application. The Electronic Frontier Foundation, which is representing Inman in conjuntion with Venkat Balasubramani has a release here, and the actual response is here. Inman’s own declaration is here.
Carreon’s TRO application, and Indiegogo’s response, were discussed here.
Where the Indiegogo response detailed the reasons why Carreon’s theories on California charity law and standing to sue are facepalm moments in Internet litigation history, the EFF’s opposition tag-teams with the broad side of the First Amendment. Pesky little thing, isn’t it?
1. Carreon’s initial complaint to Inman on behalf of FunnyJunk was a bit more abrasive than usual. Most cease-and-desist letters are sent via email, regular mail, or if you want to underscore the seriousness (or be able to prove the letter was received), by registered mail. Carreon used a process server to do it. Meaning that Carreon/FunnyJunk paid someone to show up to his house and hand him a legal document. A good way to get the relationship off on the right foot, right?
Although my contact information is widely available online, Mr. Carreon served a copy of the letter on [me] personally, by sending a process server to my Seattle apartment in the evening of Sunday, June 3, 2012. I believe that the personal service of the letter, with a process server to knock on my door, was designed to intimidate me.
2. The deed is done — well, almost. Inman already took a photograph of the money using his own money. The PayPal money he briefly held onto has already been signed over in a check to the NWF and American Cancer Society, who are likely to receive it shortly. Inman says he still intends to send the photo and the comic to FunnyJunk. Carreon’s plan to prevent Inman’s “showboating” (and, as the EFF points out, one of the major intentions of every donor to the Bear Love campaign, save for Carreon’s self-serving $10 donation to gain standing) is foiled, and his baseless speculation that Inman might embezzle the funds is laid
In other words, there’s nothing left for Carreon to restrain, unless he intends to stop Inman’s lawyers from sending checks directly to the charities. If he proceeds with the TRO request, that will only further demonstrate that Carreon doesn’t know when it’s time to back down from an unwise fight. As if we needed further proof.
3. Moreover, Carreon has suffered no actual harm as a result of his donation, because his attempt to gain standing as a person ‘deceived’ by the terms of the donation is akin to deliberately stepping on a banana peel and suing the gorilla:
Mr. Carreon, however, cannot claim such a deception. He voluntarily donated to the BLGCB campaign, with full awareness that it was hosted by Indiegogo (with its attendant transactions costs); that the $20,000 level had been reached (and well surpassed–when Mr. Carreon made his donation on June 14, the night before he filed this lawsuit, more than $170,000 had already been raised[...]; that the campaign was criticizing him and his client; that the contribution would not necessarily be tax deductible; and that Mr. Inman had not registered as a commercial fundraiser. Thus, under the circumstances here, Mr. Carreon cannot manufacture an injury in fact, nor show that his choice to donate caused him to lose money or property.
This sounds like a precursor to a motion to dismiss. If a plaintiff doesn’t have an “injury in fact,” a Federal court can’t hear the case. Not that there’s much left to pick at: Carreon’s entire case is largely based on his purported concern that Indiegogo deceives people by taking a service fee out of the donations, but his own filing shows that he offered to settle and drop that from his lawsuit. His sole focus was on Inman, and to keep after him, Carreon raised the specter of Inman embezzling money or diverting it to a “charity” (Carreon’s quotations, not mine) connected to himself. That concern is gone, as Inman has already directed that every penny be sent directly to the charities. Carreon’s only remaining allegation against Inman, then, is his suggestion that Inman will get a tax write-off and the donors won’t — a suggestion that the EFF shows is baseless, as Inman might actually incur a tax liability, not a writeoff.
4. The EFF is, unlike Carreon, not going to shield the judge’s eyes and will happily (and repeatedly) use the word “Fuck” in their briefs. Good for them.
5. That’s because the First Amendment protects such language — and, as the EFF describes in detail, Inman’s speech. The brief notes what’s clear to everyone (except Carreon, apparently): that the entire lawsuit is about lashing back at a critic. The EFF, however, hangs Carreon with his own words, pointing to his filings’ lamentations that Inman isn’t a “fit” person to raise money on behalf of charities because he raises it “to revile [his] legal adversaries” and induces donors “to express in [sic] approval of [his] hate campaign against [Carreon].” After thoroughly decimating Carreon’s suggestions that Inman’s speech is ‘commercial’ speech unprotected by the First Amendment, the EFF notes that the injunction sought by Carreon would act as an impermissible prior restraint on speech by preventing Inman from carrying out the expressive acts he promised his donors: the photo of the money and the drawing.
6. The EFF saw Carreon’s request to appear telephonically because it would be cost-prohibitive for him to travel to Caifornia for the hearing, and raised him: the Federal Rules of Civil Procedure require that a party seeking a TRO pay a bond before it is issued. The EFF asked that Carreon put his money where his mouth is and be required to pay a bond before the court issues any injunction. Not that one would be issued anyway.
7. The EFF, like the rest of us, is reading Popehat.
As yesterday, please consider donating to another IndieGoGo fundraiser to raise funds for the Electronic Frontier Foundation, which is representing Inman, and Americans for the Arts, to support artists and the First Amendment rights that protect them.