Well, time to eat a little crow here. I predicted that Chuck Johnson, a self-described “First Amendment absolutist” widely reviled for his racist-leaning tirades (among other things), would never file a libel lawsuit after threatening (and failing) to sue half of the western internet for libel.
But now he’s actually done it, filing a lawsuit in… a county court in Missouri?… over several pieces documenting his shenanigans on Gawker. The complaint (“leaked” to one of Johnson’s friends, so it’s possible that it hasn’t been filed at all) is below.
Chuck, a resident of California, also tells the Daily Caller that he’s going to be suing CNN and a CNN reporter for characterizing a tweet as an assassination threat (which is not defamatory because it’s a statement based on disclosed evidence), as well as Politico for this piece, and Charles Johnson. 1
But wait, let’s get back to the Missouri thing. Johnson — a California resident whose website’s corporation is also incorporated in California — tells the Daily Caller that he is suing “first in Missouri and then in Fresno.” This will not go well.
Why Missouri? Well, Johnson already has a lawyer in Missouri for an unrelated case, but that’s his only apparent connection to the state. Perhaps Johnson is motivated by a lazy convenience (“your honor, I sued in Missouri because I have a lawyer here” will not fly), but perhaps Missouri’s weaksauce anti-SLAPP statute (which would not apply to this case) is more appealing than having to deal with California’s Hulk-Hogan-on-steroids anti-SLAPP statute. 2
Further, it’s almost impossible to have simultaneous lawsuits for the same issue in different states. While there are some old cases holding that you can sue for different damages incurred to your reputation in different states, these are almost always the result of a plaintiff being barred by a statute of limitations in his home state. So, they go forum-shopping elsewhere. That’s a bad idea: it wastes judicial resources and looks more like harassment-through-litigation than a good-faith attempt to recoup damages.
What does that mean? Johnson has no business suing in Missouri. This case will get kicked for lack of personal jurisdiction or venue (perhaps after being removed to a federal court, as the parties are from different states and Johnson is seeking twenty million dollars), and either dismissed outright or transferred to a relevant jurisdiction. Gawker could file for declaratory relief in New York and ask that the case be transferred there, but it’s probably better to ask that it be transferred to California and then anti-SLAPP Johnson so hard that he’ll never be able to afford to eat at Arby’s again.
That brings us to the substance: this case is absolutely frivolous.
First, Chuck Johnson is a public figure. He’s so well-known that when Twitter banned him, he didn’t learn about it by checking his email, but by turning on CNN to hear them talking about it. Because he’s a public figure, he’ll have to show actual malice. This is a bit of a misnomer: while that sounds like it means that he’ll have to show that the Gawker writers just plum didn’t like him and were big meanies about the whole affair, that’s not what it requires. Johnson will have to show by clear and convincing evidence – a standard just south of “beyond a reasonable doubt”, but more demanding than your average civil lawsuit — that Gawker’s reporters knew that their stories were false or that they suspected they were false and said, “screw it, let’s say he did it anyway.”
That’s strong medicine, and it’s almost impossible to show if the case becomes subject to an anti-SLAPP motion.
Second, it will be difficult for Johnson to show that there were false statements of fact. When a court evaluates whether a statement is one of an objectively disprovable false statement of fact or, instead, one of opinion or hyperbole, the court looks to the whole context of the article, including what an informed reader would make of it, to determine whether a reasonable person would conclude that the article asserts a fact.
Almost everything — if not everything — is opinion, either outright or based upon disclosed facts. Johnson, for example, is suing over being called the “web’s worst journalist.” I look forward to a court ranking journalists to determine whether he’s the worst. Johnson also cites descriptions of his reporting as “flawed” as defamatory. The article itself links to other journalists’ work criticizing Johnson’s reporting. This is almost certainly opinion based on disclosed information.
Johnson also tries to tie anonymous comments as having been “solicited” by Gawker. This is completely, wholly barred by the Communications Decency Act — so clearly so that it should be sanctionable to even attempt this route.
As for the infamous “did Chuck Johnson shit on the floor?” articles, each of these articles were clearly hyperbolic, asking questions based on quoting Johnson himself rather than making an assertion that Chuck Johnson did, in fact, shit on a floor. The articles were, to a knowledgeable reader, clearly a parody of Johnson himself: pulling something from an unprotected social media account and purporting to leap to conclusions (while very clearly making it apparent that it was a joke.) No reasonable person would conclude from these posts that Chuck Johnson shat on a floor and had intercourse with a sheep.
Okay, no, the post ends here. Chuck Johnson is suing in a completely irrelevant state over jokes about him shitting on the floor and trying to upend clear law in the process.
This is less the behavior of a “First Amendment absolutist” and more of a nutty vexatious litigant.
UPDATE: One of Johnson’s causes of action is for false light — that is, that Gawker stated things that were true (or paraphrased) in such a manner that they implied something else about him. As Prof. Chip Stewart points out, whether false light is even recognized in Missouri is dubious, and it certainly won’t be applicable here.
- While it would be par for the course for Chuck Johnson to threaten to sue himself for libel, Charles Johnson is a different blogger. ↩
- With some procedural jujitsu, this may not matter. As I’ll discuss in a coming post, California residents can be held to California’s anti-SLAPP statute even when they sue in other states, assuming they’re in federal court. ↩