Chuck Johnson files libel lawsuit in Missouri for some reason

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.

Notes:

  1. While it would be par for the course for Chuck Johnson to threaten to sue himself for libel, Charles Johnson is a different blogger.
  2. 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.

11 comments

  1. Charlie Galvin says:

    You may have to eat more crow, Adam. Where is the court clerk’s FILED stamp? A draft complaint is not a lawsuit.

    • AdamSteinbaugh says:

      I left myself a wee bit of wiggle-room on that. But if he told the Daily Caller that he was filing in “an hour” and leaked this simultaneously, and then *doesn’t* file, well, I’ll save some crow for him.

      • Grant says:

        We’re two days into this business, and Missouri’s eFiling database doesn’t show a suit has been filed…

  2. Scott Jacobs says:

    “and then anti-SLAPP Johnson so hard that he’ll never be able to afford to eat at Arby’s again.”

    As if they let him in…

  3. Scott Jacobs says:

    “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.””

    Does it count if they knew or suspected it was false, and posted it in a “lolz we do this on purpose to show the same level of care Chucky does” way?

    • AdamSteinbaugh says:

      It would have to be, to a reader-in-the-know, a statement of fact. This wasn’t. It was clearly tongue-in-cheek parody.

      Now, if they were making a statement of fact, but did it thinking “aw, heck, let’s purposefully get this wrong because that’s what he does,” that would meet the requirements of actual malice. Assuming there was evidence of that, of course.

  4. Matthew Cline says:

    … 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), …

    But what if the disclosed evidence is taken out of context? If you take the a large enough sampling of Chuck’s former Twitter feed as context, it’s clear that when he wrote “take out” he meant “dig up dirt on”. Of course, the CNN reporter might not have read enough of his Twitter feed to see that, but what if s/he did? Would that not only meet the actual malice requirement, but also make CNN’s characterization not count as a statement based on disclosed evidence?

    • AdamSteinbaugh says:

      There was probably enough disclosed by CNN: as far as I recall, they referred to him as a journalist and showed the tweet. The disclosed-facts rule protects even the most objectively unreasonable conclusions, like CNN’s “maybe he was making a threat of violence” conclusion.

      And it’s the same rule that protects Johnson when he offers truthful evidence (“here are photos of the alleged rape victim’s social media”) and somehow concludes that they suggest the alleged victim is lying.

      As for actual malice, making a mistake in not providing greater context wouldn’t qualify. If some producer sent an email saying “it’s clearly not a threat and these other tweets make that clear, but I don’t care,” that would show actual malice.

  5. Katie says:

    Charles Johnson has spoken to a St. Louis publication about his alleged reasons for choosing St. Louis:

    “I have confidence that the good people of Missouri will see Gawker’s malicious lies about me for what they are,” Johnson wrote Tuesday night in an e-mail. “I hope they won’t forget how often Gawker has insulted the inhabitants of the Show Me State.”

    http://www.stltoday.com/news/local/crime-and-courts/article_b31c966c-76da-508d-8d5e-b669ff737f5d.html

    This makes me wonder a couple of things.

    1) Is Johnson planning on using jury selection to his advantage, and that’s why he chose Missouri? I think he’s implying that the Gawker coverage of Ferguson was offensive and that Missourians should keep that in mind. The fact that the only interview he’s given on the subject is in a small, St. Louis paper might indicate that he wants to reach a specific audience (e.g. a potential jury).

    2) Or is Johnson using Missouri for some other undisclosed strategic reasons? You mentioned Missouri’s non-applicable, weak anti-SLAPP statute; other people have cited that he happened to have a lawyer in St. Louis that he’s used in the past. Something that might support this is his hesitancy to disclose the above reason to any national publications, or on his website/social media.

    I’d be interested to know your thoughts, and a more-detailed break-down of the complain itself. But I also worry that maybe his lawyer reads and considers these analyses.

  6. shay simmons says:

    “While it would be par for the course for Chuck Johnson to threaten to sue himself…” Maybe he’s channeling the notoriously pugnacious (and inept) Braxton Bragg, who once famously picked a fight between himself as company commander and himself as quartermaster.

    Causing the post commander to declare “”My God, Mr. Bragg, you have quarreled with every officer in the army, and now you are quarreling with yourself.”

  7. Un-confused says:

    I’m so glad the clown has been booted off twitter for good.

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