Techdirt's Mike Masnick Squares Off Against Charles Harder in SLAPP Fight

Mike Masnick
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Mike Masnick is the founder and CEO of Techdirt, a leading news and analysis website about the technology industry.

What are the chances the Motion Picture Association of America comes to support Techdirt's Mike Masnick, a guy who has never been shy about poking the trade association for its attitudes on copyright and other matters?

Maybe pretty good, actually.

In January, Masnick was hit with a $15 million libel lawsuit over a series of articles that doubted Shiva Ayyadurai's claim to have invented email. Since then, Masnick has presented this as "Techdirt's First Amendment fight for its life," not least because the plaintiff is represented by Charles Harder, the attorney who helped bring down Gawker through his representation of Hulk Hogan in a dispute over a published sex tape. 

While ordinarily, some in the entertainment industry would like to stick it to Masnick, the case has quickly progressed to something of significance to other creators and studios.

In reaction to the lawsuit, Masnick filed both a motion to dismiss as well as a motion to strike. Even though Ayyadurai's lawsuit was filed in Massachusetts, the latter motion was premised upon California's anti-SLAPP statute, which is meant to deter frivolous claims attacking one's First Amendment protected activity on matters of public interest.

"Even if Massachusetts defamation law were held to apply to Ayyadurai’s claims, the Court should nonetheless apply California law to the anti-SLAPP question, which has to do with immunity from suit rather than substantive defamation law," state defendants' motion arguing California, not Massachusetts, has the “the most significant relationship” to the issue at hand.

Masnick and Techdirt also argue that Ayyadurai is unlikely to prevail in his lawsuit because the blog posts in question raise "non-actionable opinions," based on facts reported by others. Masnick's legal papers say Ayyadurai's accomplishments as a 14-year-old, while working as a research fellow at the University of Medicine and Dentistry of New Jersey, is not something that can be proven, and that the essential functions of email were developed before his work there. The defendants add, "Additionally, while Ayyadurai may not enjoy being called a 'fake' or a 'liar,' such rhetorical hyperbole is not actionable in the absence of a false and defamatory statement of fact."

On Friday, Harder responded. Naturally, right off the bat, he's attacking the premise that California's anti-SLAPP law should be used to kill the lawsuit given where the complaint was filed and the fact that Ayyadurai is a Massachusetts citizen.

"Defendants are asking the Court to ignore Massachusetts choice-of-law principles to apply California law to this case," states the opposition. "In doing so, Defendants seek to abuse California’s anti-SLAPP statute."

The fight gives Harder the opportunity to raise one of his biggest pet peeves with the California law aimed at bolstering the First Amendment. Harder writes, "One of the ways the California anti-SLAPP statute has been abused by defendants is through the right to an automatic interlocutory appeal. This allows a defendant to file a meritless anti-SLAPP motion, immediately appeal the denial of the motion, and thereby stay the case in the trial court for an extended period of time, often up to two years. Meanwhile, the plaintiff’s evidence grows stale during the lengthy stay, and the plaintiff is forced to incur substantial fees to oppose the meritless appeal, following the meritless motion. Thus, if this Court applies the California anti-SLAPP statute, Defendants likely would attempt to immediately appeal the ruling, for the purposes of delaying the action and driving up Dr. Ayyadurai’s legal fees and costs."

It should be noted that Florida has passed an anti-SLAPP statute, but it was not enacted in time for Gawker to use it in the Hulk Hogan case.  Twenty-eight states and the District of Columbia have similar statutes, although California is perhaps the most generous to defendants. Since film studios frequently find themselves in court over claims that connect with their expression, they've enjoyed employing anti-SLAPP laws over the years. And studios are fiercely protective of this right. Before a Georgia judge recently held that a federal court shouldn't apply a state anti-SLAPP law in a defamation case against CNN, the MPAA filed an amicus brief arguing otherwise. When a legal columnist at TheWrap wrote earlier this month that anti-SLAPP laws are a “dirty little secret” that's been “seized by giant media conglomerates to squelch suits.” MPAA lawyer Ben Sheffner quickly wrote a column in defense of why it was important to protect against the chilling of free speech at a time when "the biggest threat to artistic freedom in the United States comes not from the heavy hand of government censorship, but instead from individuals, unhappy with the way they are portrayed."

For this reason, we won't be surprised if the MPAA decides to lodge its two cents in the Techdirt defamation fight. At stake is whether plaintiffs can do an end-run around anti-SLAPP laws by strategically placing lawsuits. That's something studios will care about.

If the Massachusetts judge decides to apply California's anti-SLAPP law, it will first mean some analysis on whether Ayyadurai's claims arise from a matter of public interest. Masnick's lawyer Robert Bertsche writes there can be "no question" of the public nature of the claims given that the plaintiff holds himself out as a world-renowned scientist. Harder retorts that "regardless of whether Dr. Ayyadurai’s invention of email is a matter of public interest, his reputation and integrity is not a matter of public interest."

The judge would then look at the merits of the case. Or stated differently, does Ayyadurai have a likelihood of success on his claims?

Harder rejects the proposition that statements about his client at Techdirt constitute opinion or rhetorical hyperbole. He at least thinks it's inappropriately decided at this stage. As for the notion that it was the government that invented email, he writes, "This is incorrect. At the time Dr. Ayyadurai invented email, the research conducted by the U.S. government, including ARPANET, was focused on building reliable computer networks that facilitated the transmission of electronic messages, primarily for use in military applications. The U.S. government was not interested in creating, nor did it create, an electronic system that replicated the paper-based interoffice mail system in existence at the time. Id. Dr. Ayyadurai has not, and does not, claim to be the inventor of electronic messaging, which includes a broad set of methods of exchanging text messages using electronic and electrical devices, such as Morse code, dating back more than a century."