from the how-do-you-say-streisand-effect-in-german? dept
How big of an embarrassment is Robert F. Kennedy Jr.? Beyond all the anti-vax nonsense, he filed a ridiculously embarrassing lawsuit against Facebook because he was fact checked. The case was laughed out of court earlier this year. And now he’s trying to abuse the courts to out a pseudonymous blogger for writing about how RFK Jr. spoke at a German rally last year that appeared to be organized by folks with ties to rightwing extremists.
Paul Levy from Public Citizen, who is trying to stop RFK from succeeding in this bullshit effort, has a blog post with all of the details.
Our latest effort to defend the right to speak anonymously about issues of public concern brings us up against Robert F. Kennedy Jr.
Last summer, Kennedy spoke at an August 29 rally convened by the German far right to protest government restrictions aimed at corralling the COVID pandemic. Kennedy was, apparently, the third choice speaker, after appeals from a rightwing group called Querdenken to Donald Trump and Vladimir Putin went unheeded. But when this group learned that Kennedy was coming to Germany for other reasons, it issued a public invitation and he responded. The German right waxed rhapsodic about the way in which Kennedyâ€™s presence was lending legitimacy to their activity.
The rally and his speech were widely covered in the mainstream media, which reported that his rally was heavily attended by neo-Nazis and that a variety of antisemitic and neo-Nazi factions had been involved in organizing the event. Kennedy was infuriated by this coverage of the audience to whom he had become connected by speaking at the rally. His position is that any neo-Nazis were at some other rally on the same day, and that Querdenken is a fine group unsullied by neo-Nazi or anti-Semitic ties. Our expert witness says otherwise.
Kennedy took no action against the New York Times, Wall Street Journal and others who took note of these connections. Instead, he directed his ire at what, I assume, he viewed as a defenseless target: DowneastDem, an otherwise obscure blogger on the Daily Kos who generally writes about German and Maine politics. This blogger wrote a post entitled â€œAnti-Vaxxer RFK JR. joins neo-Nazis in massive Berlin ‘Anti-Corona’ Protest,â€ linking in turn to an eyewitness account in a major Berlin newspaper whose sub-headline mentioned the participation of neo-Nazis (English translation here). Kennedy responded by having a lawyer post a heated comment in the form of an open letter, denying the accuracy of the blog post and demanding that it be taken down immediately.
As Levy notes, the mere denial by Kennedy’s lawyer wasn’t enough — and Kennedy hired the pre-eminent law firm these days for trying to shut people up, Boies Schiller Flexner. As you may recall, the “Boies” in Boies Schiller Flexner is David Boies, who famously was deeply involved in trying to silence Harvey Weinstein’s accusers, deeply involved in trying to punish Theranos whistleblowers, and also tried to silence reporting on the Sony hack years back.
As recounted by Levy, RFK Jr. got the lawyers at Boies Schiller Flexner to convince a court to do some sketchy things in order to try to unmask the blogger:
When the blogger did not take the post down, Kennedy upped the ante, calling in a large firm, Boies Schiller Flexner, to file a pre-action petition for discovery to identify Kennedyâ€™s critic. The proceeding was filed in Kennedyâ€™s hometown court, Westchester County, New York, despite the fact that Daily Kos, owned by California company Kos Media, cannot be subpoenaed there, and despite the fact the New York has deliberately limited the reach of its long-arm statute to preclude defamation suits against alleged defamers who do not live in New York. The petition was verified, not by Kennedy himself but by his lawyer, who swore on personal knowledge that the blog post was false, even though the lawyer had not been in Berlin and thus could not have personal knowledge of what had happened there. The local judge nevertheless authorized the issuance of a subpoena to identify DowneastDem, deciding that admissible evidence that the allegedly defamatory statements were false was not needed because under existing precedents in New Yorkâ€™s Second Department, mere allegations of wrongdoing were enough to support issuance of a pre-litigation subpoena.
As Levy further notes, RFK’s lawyers started a new lawsuit in California based on the questionable NY subpoena, and that’s where Levy and Public Citizen have entered the case, seeking to quash the effort:
Thus, we filed a petition to quash the subpoena, and secured a briefing schedule that would give both sides a fair opportunity to brief the issues. Kennedyâ€™s lawyers started trying to avoid having to address our arguments, first filing a parallel motion to compel Kos Media to comply with the subpoena, with a hearing date before our motion to quash was scheduled to be heard, then trying to strike our motion papers altogether. Once those efforts were denied, Kennedy, using an unusual California procedure that gives parties a peremptory strike to change the judge assigned to a case, claimed that the judge who had rejected his procedural evasions was prejudiced against him, and got the case reassigned. At this point, however, our motions are fully briefed and the cross-motions are scheduled to be heard on November 2, 2021.
Kennedyâ€™s opposition to the motion to quash was rhetorically strong but surprisingly anemic in substance. We had anticipated that he would use his considerable resources to produce eyewitness affidavits from his German collaborators to attest to his version of the facts â€“ that is why we insisted on a briefing schedule that would give us ample time to find eyewitnesses to the rally at which he spoke. Instead, his opposition is based only on Kennedyâ€™s own affidavit. Kennedyâ€™s affidavit says broadly that the blog post contains false statements, which seems inadequate to the task of showing based on personal knowledge what was said at the rally, and by whom, considering that he does not appear to be fluent in German, and at the end of his speech, as shown on his own website, he appears to have headed to his bus to leave as soon as he was done speaking. On this sort of evidence, Kennedy risks a William Westmoreland style outcome -â€“ that is to say, a ruling that, so far as the record shows, what DowneastDem said about his participation in the protest was essentially true.
As Levy notes, underneath all this nonsense, there is an interesting question regarding anonymity:
If the case gets past Kennedyâ€™s failure to present any admissible evidence of falsity, the utter lack of personal jurisdiction in the New York court, and the expiration of New Yorkâ€™s one-year statute of limitations since DowneastDem posted her blog article, the California judge could end up reaching an interesting issue that has been bothering me since we achieved our first round of success in getting the Dendrite analysis (or the related Cahill approach some state courts have adopted)â€” whether the requirement of an evidentiary showing extends to the issue of actual malice. Cases like Krinsky leave that issue open, and this case could be a good one to explore it.
Imagine, for example, that Bill Clinton wanted to identify an anonymous blogger who said, in 2021, that Clinton had sex with a White House intern â€“ would Clinton get to identify his accuser by doing no more than swearing under oath, â€œI did not have sexual relations with that womanâ€? Or, considering the wealth of publication about Clintonâ€™s conduct, would some showing on the issue of actual malice be required?
Similarly here, the defamation claim is not addressed to speech that is based on personal knowledge about what occurred in the course of a controversy that occurred in private, or between two or three people; so the speech was not based on facts known only to the defendant. The blogger here presented her take on what happened at a public rally, heavily covered by the mass media, and with thousands of people present (the very first post about this litigation on the web site of Children’s Health Defense claimed the â€œspeech that Kennedy delivered [was] to more than 1 million peopleâ€ (although that same blog post said that the speech was on August 22 â€“ you can see how careful Kennedy is with facts); another said that this was â€œone of the biggest demonstrations in [German] history.â€ In context, the blog post could represent DowneastDemâ€™s opinion about the meaning of the media reports (which would not be actionable). Alternately, it could be treated as a characterization of the facts reported by the many media reports; if the characterization of such facts is itself a fact, it would not likely be the product of actual malice considering how many reputable media sources made just the same statements.
If Kennedy had sued DowneastDem as a Doe defendant in either Maine or New York, his lawsuit would have been vulnerable to a motion to dismiss under the anti-SLAPP laws in those two states, and he would have had to present prima facie evidence of actual malice without knowing the Doeâ€™s identity. Where Kennedy has evaded anti-SLAPP motions by seeking the remedy of outing his critic, without actually filing an action that could be met with an anti-SLAPP motion, it is fair and reasonable to require him to present evidence that suggests some likelihood that the allegedly false facts about a widely-reported public event were stated with actual malice, before a court issues an order depriving the blogger of the First Amendment right to speak anonymously.
Of course, all of this has created something of a Streisand Effect. How many people were aware that RFK spoke at this German rally before all of this? How many more people are aware now?
Filed Under: anonymity, defamation, downeast dem, germany, rallies, rfk jr., robert f. kennedy jr., subpoena
Companies: daily kos