Ken Popehat White (Again) Shows How To Respond To A Completely Thuggish Legal Threat Letter

from the rhetorically-speaking dept

It’s been a while since we’ve seen a really good response letter to a — as Ken White likes to call them — “bumptious” legal threat letter. But here we’ve got one, courtesy of Ken himself, representing Chad Loder. Loder is a writer who has been calling out propagandist Andy Ngo and The Post Millennial, a propagandist rag that Ngo sometimes writes for. The Post Millennial was apparently sad about that and sent Loder a very silly legal threat:


Here’s the text of the letter:

From: Sam Coppola
Sent: September 29, 2021 2:29 PM


Subject: The Post Millennial v Loder et al.

UNDER RESERVE

We are special counsel to The Post Millennial (“TPM”) who have advised us of various recent posts and allegations you have made publicly and on your Twitter account.

Our client advises us that the posts and allegations are false and misleading (eg: TPM is NOT Ngo’s “disinfo site” or a “disinformation website vilifying the Anti-Defamation League”, it is an independent news organization; TPM is NOT “run by Andy Ngo”, it is a site owned an operated by Matthew Azrieli as is publicly stated on TPM’s website. As specifically denied by Andy Ngo, he does NOT provide “kill lists of journalists…”; Our client and TPM are NOT “neo-nazis” and do NOT “publicly incite violence” or “target journalists with death threats”, in California State legal proceedings case No 21TRR000739 Chad Loder vs Sarah Mason you falsely believe “…that this account is popular with members of the far-right, including violent extremists” and Exhibit L where you indirectly and purposely falsely publish that “Andy Ngo knowingly defended pedophile Amos Yee”, et…) and were done only with malice and intent to harm our client and interfere with its commercial dealings.

Such posts are also a direct violation of Twitter Rules in respect of “Abuse/harassment” since they harassed and targeted our client and Andy Ngo and incited other people to do so including your directed @(TPMadvertiser) tags. Your posts also published private information (a private chat transcript with Sheri Freed) again contrary to law and the Twitter Rules. As you are aware, Twitter has taken these violations very seriously and even suspended the accounts of well known Canadian politicians for abuses such as those made by you.

You are on formal notice to:

  1. Cease and Desist publishing any false, misleading, abusive, and harassing posts;
  2. Remove all of the unlawful posts;
  3. Publish a retraction and apology satisfactory to our client and sent to the public and the clients and customers which you tortiously interfered with.

If you fail to do so within 3 days, our client will be obliged to exercise all other rights and recourse it may have, including without limitation, commence legal proceedings against you without further notice or delay and hold you liable for any and all damages thereto.

PLEASE GOVERN YOURSELF ACCORDINGLY.

The main block of the 2nd paragraph is almost entirely inscrutable. It throws in some legal jargon but not in any manner that makes sense. The letter mixes up a bunch of things and suggests that TPM might take legal action, but also that Twitter might act? All in all it’s nonsensical, but Ken White is the master in responding to these kinds of letters, so I’ll let him take it from here:

On whose behalf do you write? You claim to be “special counsel” to The Post Millennial
(“TPM”). Congratulations, I’m sure.1 Yet most of your threat is a gripe about things Mr. Loder
said about Andy Ngo, who is apparently an “editor at large” for TPM. (Again – congratulations,
I’m sure.) Moreover, after asserting that you represent TPM, you lose track and refer to “our
client and TPM.” Do you represent Mr. Ngo as well? You seem intent on distancing Mr. Ngo
from TPM, pointing out that he does not “run” TPM. I’m sure everyone understands why you’d
want to clarify that. But you also seem to be arguing that criticisms of Mr. Ngo are false and that
Mr. Ngo is perfectly respectable. How, then, is it defamatory to associate TPM with him? That
was a rhetorical question. Since your legal theories are nonsense, it doesn’t matter.

For what it’s worth, the footnote links to this article calling bullshit on a nonsense story spread by The Post Millennial and a few other sites that are focused on driving whatever silly culture war the Trumpist world delights in this week.

It gets better. Ken breaks out his French (thoughtful for the Canadians):

You may believe that you can intimidate Mr. Loder with frivolous legal threats because
Canada, despite being quite delightful in many other ways, indulges such vexatious litigation
calculated to silence critics on behalf of the thin-skinned, the vengeful, and the cynically
partisan. Au contraire, mon ami. The United States, conscious of the dangers of libel tourism
and pro-censorship legal systems, has enacted the SPEECH Act, 28 United States Code § 4102.
The SPEECH Act prohibits American courts from recognizing foreign defamation judgments
obtained under regimes that do not provide defendants with free speech protections as robust as
those available under the First Amendment to the United States Constitution and the laws of the
relevant states. American courts have found that there is “no meaningful dispute that the law
applied by [Canadian courts] provides less protection of speech and press than First Amendment
and [state] law. Canadian defamation law is derivative of the defamation law of the United
Kingdom, which has long been substantially less protective of free speech.” (Trout Point Lodge,
Ltd. v. Handshoe, 729 F.3d 481, 488 (5th Cir. 2013) (upholding refusal to recognize Canadian
libel judgment under SPEECH Act). Any Canadian judgment you obtain against Mr. Loder will
be worthless – both because Canadian courts lack personal jurisdiction over him (as also required
by the SPEECH Act) and because his speech is clearly protected by American law.

Then, he highlights why it would be equally stupid to file a lawsuit in the US:

Perhaps you plan to sue Mr. Loder in America. It would be my pleasure, M. Coppola, to
introduce you and your client or clients to one of our anti-SLAPP statutes. Any suit you file in
the United States will fail for multiple reasons, and result in you paying Mr. Loder’s legal fees
under an anti-SLAPP statute.

He then goes through all the many reasons, including:

Astoundingly, your threat is based largely on things Mr. Loder or his attorney said in
court filings. Such statements are absolutely privileged from defamation claims
under relevant law. Cal. Civ. Code § 47(b), Pollock v. University of Southern
California, 112 Cal.App.4th 1416, 1430-1431 (2003) (declaration filed in court
absolutely protected by litigation privilege); Holland v. Jones, 210 Cal.App.4th 378,
382 (2012) (litigation privilege barred defamation action because it was based on
statements “whether true or false or made with malice or without it, in her declaration
in [court] proceedings [that] fall squarely within the litigation privilege. They are
communications made in a judicial proceeding by a litigant to achieve the objects of
the litigation with some connection to the action.”).

Reading this, you get the feeling that Ken was pretty excited to search out any Canadian reference he could think of:

Your threat is also a jumbled, oily poutine of complaints about opinions, insults, and
heated rhetoric. But under American law, statements can only be defamatory if
they’re provably false statements of fact. “Thus, rhetorical hyperbole, vigorous
epithets, lusty and imaginative expressions of contempt, and language used in a loose,
figurative sense have all been accorded constitutional protection.”

There are a few more reasons included as to why any such lawsuit will fail (you can go read the whole letter if you’d like) but the final one is also worth highlighting here:

Finally, I am informed that in Canada a defamation defendant carries the burden of
proving that a challenged statement is true. This hardly seems polite. In the United
States, which values free speech and scorns the censor and the litigious bully, the
burden is on the defamation plaintiff to prove that a challenged statement is false.
You will fail to carry that burden. Take, for example, your gripe that Mr. Loder
described TPM as a “disinformation website vilifying the Anti-Defamation League.”
Even assuming this statement were a provable statement of fact – a laughable
proposition – your clients’ own words will thwart any effort to disprove it

But, truly, the cherry on top is the closing. As we’ve seen over and over again, letters that close “please govern yourself accordingly” are hallmarks of lawyerly bullying, so it’s nice to see how Ken turns it all around on Mr. Coppola:

Direct all further patently frivolous threats and other communications to me. Kindly
govern yourself.

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Companies: the post millennial

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Comments on “Ken Popehat White (Again) Shows How To Respond To A Completely Thuggish Legal Threat Letter”

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34 Comments
ECAsays:

stats.

https://en.wikipedia.org/wiki/The_Post_Millennial

Interesting for a company thats 4 years old, in Canada, that does Local, and National news, deciding to step into the USA news markets.
"The Post Millennial is backed by private investors, but their identities have not been made public. Other funding sources remain unclear, with proceeds from advertising or subscriptions undefined."

https://rimonlaw.com/team/saverio-sam-coppola/
Here is the lawyer, Sam.
"who focuses his practice on entertainment, media and commercial tax law. Mr. Coppola represents financiers, film, television, gaming, technology and web clients in entertainment law, tax and corporate law related issues. He also has significant experience in worldwide tax credits and structuring co-productions and ventures with Canadian, U.S., European and Asian companies."

seems like person who knows how to hide the money?

https://en.wikipedia.org/wiki/Andy_Ngo
then lets see Andy Ngo.
Born in California, lives in Portland Or.
Seems to be Mostly freelance.
"an American conservative journalist,[1][2][3] author, and social media personality known for covering and video-recording demonstrators.[4] He is the editor-at-large of The Post Millennial, a Canadian conservative news website.[5] Ngo is a regular guest on Fox News,[6] and has published columns in outlets such The Spectator[7] and The Wall Street Journal.[8]"
References 1,2,3,4, seem to tell allot about this person.

Ngo loves capitalism. And seems to have gathered info on how to create rhetoric, and getting reactions. Which really means he likes to stand out in a crowd, Force things to happen, abit of a instigator. FOX NEWS journalism on the front lines.

That Anonymous Cowardsays:

Re:

Govern yourself accordingly is always the give away.

Actual lawyers do stupid things like this because they expect that people will be scared of their bar card & degree. They send a pointless letter that makes the client happy, bills them more hours, and then never file a case (or if they do they pray the malpractice policy is paid up to date.)

At least he didn’t welcome them to the big leagues.

PaulTsays:

Re:

It’s like the old joke – what do you call the person who graduated bottom of their class at medical school? Doctor.

Passing the bar and being a competent lawyer aren’t necessarily the same thing, and some lawyers will write stuff like this despite knowing better because they know that have no real case to fight in court but know that sufficiently threatening legalese will get many people to cave even if they’re laughing at the letter in the meantime.

Anonymoussays:

Re:

It actually makes me wonder if the original letter was legit, or just designed to provoke a response.

It makes me want to write a comment involving ponies, and then send a cease and desist letter to Tech Dirt claiming it’s defamation and threatening to invoice the Rico act. My guess is that writing a response to such a letter would cause Mr. White’s head to explode from an overload of pure joy.

Anonymoussays:

Re: Re: Re:

I have no clue who John Steele is. I’m just talking about how Ken White is a piece of shit in ways that people either don’t know about or tend to conveniently ignore.

Y’all have a really bad habit here on Techdirt of assuming that some people are other people. That kind of paranoia drives down the quality of discussion.

Anonymoussays:

Re: Re: Re: Re:

I have no clue who John Steele is. I’m just talking about how Ken White is a piece of shit in ways that people either don’t know about or tend to conveniently ignore.

And I’m just talking about how other people who Ken White has accurately pointed out as pieces of shit are other people you either don’t know about or conveniently ignore.

Y’all have a really bad habit here on Techdirt of assuming that some people are other people.

If it bothers you that much you can always create an account and post your rant there, but seeing that people who do so usually make a single post to thump their chest in support of things like suing grandmothers for porn they’ve never heard of, they tend to… not go over well.

That kind of paranoia drives down the quality of discussion.

What sort of quality of discussion were you expecting when you led off with insults?

Anonymoussays:

Re: Re: Re: Re:

Look. Don’t know whatever you’re saying about Ken White here, but his argument here against the stupid threats is perfectly good. No one should ever mention Ken White because you don’t like him, or because he possibly did some asshole things (i literally have no idea, but it doesn’t matter.)

Randazza has definitely proven himself an asshole over the years. And yet he has made perfectly good arguments that were worth noting in a case that was worth noting. He has also made some spectacularly bad arguments.

But it sounds like your biggest problem is with the First Amendment. I in no way support transphobes, TERFs, or other haters, but they can say what they want as long as they aren’t violating specific, narrow laws regarding things like threats. We are free to argue against people like that (and i encourage more of it), and lawyers are free to defend them legally, whether or not they agree with a defendants shit. That’s how lawyers work.

John85851says:

Re: Re:

"They send a pointless letter that makes the client happy, bills them more hours, and then never file a case"
Doesn’t it violate legal ethics to take money from a client to file a lawsuit that the lawyer should know has no merit?
I’ve said this over and over: shouldn’t judges start disbarring lawyers for doing this? Maybe some disbarments will send a message that lawyers need to stop sending letters or filing cases like this.

That One Guysays:

Re: Re: Re:

As far as I’m aware judges have little to do with the disbarment process beyond sending ‘hey you might want to look into this person’ letters with the bulk of the disbarment work done by the various state bar organizations and as many articles on TD alone have made all too clear you have to really go above and beyond in making yourself toxic as a lawyer for them to even think of going after your license.

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