Reminder: These are my own views, and not the views of any other organization. Longer disclaimer here.
A brief sum-upÂ of where we are in the Ellora’s Cave v. Dear Author litigation. There are four major things going on right now.
A. The claim by EC against DA alleging defamation.
B. The motion for a temporary restraining order by EC (discussed hereÂ and also peripherallyÂ here: the TRO hearing was continued by the judge, and so is in temporary limbo.)
C. The removal of the case to federal court (discussed here and here: we’re waiting for the judge to rule on the remand motion).
D. The counterclaim by EC against DA alleging abuse of process.
This post touches on threads A and D. Often I use “Jane” and “DA” interchangeably to refer to the defendants as a whole. Because Jane Litte, in her personal capacity, and Dear Author, the LLC, have replied separately, in this post I will refer to them separately.
Where we are:Â On October 22, DA filed an answerÂ to Ellora’s Cave’s claimsÂ and a counterclaim. Jane did not file an answer on that time, and so I put off discussion of those two. On October 24, EC moved to remand the case to state court, something I’ve talked about before. As a result of that, the parties jointly moved on October 29th to extend the time for responsive pleadings. The judge denied that motionÂ on November 6, and that same night, Jane filed her answer in her personal capacity.
So here’s where we are.
Â Thread A: The original defamation claim.
While memoranda in support and in opposition of the TRO are flying, with potential hearings, the original lawsuit continues to trundle on.
Just so you know what you’re looking at when you download the documents, the complaint and the answer are both initial pleadings–meaning that they tell the court what the plaintiff wants and what their grounds are for wanting it. In return, the defendant lets the court know what they agree with, what they might potentially dispute, and if they have any defenses or counterclaims.
PleadingsÂ usually don’t set out the case in detail. They’re not briefs where they lay out their reasons for winning and losing in detail; they’re skeleton sketches. Both Jane and Dear Author’s answers areÂ pretty boringÂ for the most part.Â All they’re doing isÂ going through the original complaint filed by EC paragraph by paragraph and saying whether they admit or deny the paragraph. So you’ll see (unsurprisingly) that Jane and Dear Author agree that EC publishes books and that Dear Author reviews books, and you’ll also see (unsurprisingly) that Jane and Dear Author deny that Jane libeled EC and acted with hatred and ill-will. Sometimes, the answer will say, “We don’t really know about this, so prove it.”
You could go through this paragraph by paragraph if you wanted, but you already know the gist of what’s going to be said.
The answer gets interesting on page 4 ofÂ bothÂ DA’s Â and Jane’s answers, which is where the affirmative defenses are. If you’re wondering what an affirmative defense is, you can figure it out by what you’ve just seen. You’ve just seen plain old defenses–that is, denying factual allegations or conclusions from those. So imagine that a mother comes home and finds all the cookies she’s baked gone. “Jimmy,” she asks, “did you eat the cookies?”
“No, I didn’t!” Jimmy could say. That’s a regular old defense–he’s denying the facts of the accusation.
But there are also affirmative defenses:
“You said I could have some cookies if I finished my homework, and I finished my homework!”
“A bad man came over and held a gun to my head until I ate all the cookies!”
“Your sisters came over, and I had to give them something, and then Aunt Lobelia said I should have a cookie with them.”
Those are potential affirmative defenses: things that get Jimmy off the hook that don’t rely on denying the facts of the accusation.
So Dear Author and Jane both pleadÂ affirmative defenses. Their affirmative defenses are not the same for both DA and Jane (and I knewÂ they wouldn’t be). Here’s a brief summary of them, and my thoughts on them.
1. Dear Author is immune under Section 230 of the Communications Decency Act.
This is the only affirmative defense that DA makes that Jane does not.
I apologize in advance for my total dorkgasm about this. I tried to hold myself back and I failedÂ and I would hide my head in shame but it’s too interesting for me to even manage that.
A bit of background about CDA immunity: The Communications Decency ActÂ (47 U.S.C. s. 230(c)(1)) says that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
The easy way to see what this means in action, and to understand why we have this law, is to imagine this: Can you sue Google if some random person harasses you using a Gmail account?Â Without the CDA, the answer would be “maybe” and that maybe would depend on a number of factors which don’t matter, because so long as it depends, every time some jerkÂ wanted to sue about somethingÂ wrong on the internet, said jerkÂ would try to attach Google or Facebook or Yahoo as a defendant because they have money. The CDA says that services would mostly be immune, and so the answer turns into “never” instead of “maybe.”
So that there’s your average, run of the mill, CDA case.
This is not an average, run of the mill deployment of the CDA. Once upon a time, I read every appellate-level CDA immunity opinion that was available, and most if not allÂ of the published trial level opinions. In all that reading (okay, it’s not that much reading),Â I don’t think I ever saw the CDA deployed in precisely this way.
Here’s a different question: Is Google immune from suit under the CDA if Larry Page, the CEO of Google, harasses you using a Gmail account?Â That’s closer to what we have here.
Almost every CDA case that I have seen had a provider of an information service being sued for something posted by someone who was essentially a random, unaffiliated, user of the service. Jane appears to be the owner of Dear Author (from state LLC filings).Â I have never seen an opinion granting CDA immunity to an entity where the speech in question was made by the owner of the official site owned by the entity. To be perfectly fair, I have never seen an opinionÂ denying CDA immunity under those circumstances, either, and I suspect that is because nobodyÂ thus far has had the chutzpah to make the claim.Â So far as I know, this is a novel and therefore extremely interesting (to me) use of the CDA.
Whether DA gets immunity on thisÂ question will turn on whether Jane’s speech is that of “another information content provider.” The closest we have to on-point legal authority–and this is actually only tangentially relevant–here is the 9th Circuit’s opinion inÂ Fair Housing Council of San FernandoÂ v.Â Roommates.com.
Short version of Roommates.com… No, there is no short version. There is only a less long version, which commences:Â It is illegal to specify certain preferences in a housing search. So, for instance, you can’t say “I will rent this house to whites only.” (You’re allowed toÂ actually discriminate under certain circumstances, but you’re not allowed toÂ say that you’re discriminating in all circumstances.) Â Roommates.com allowed people to sign up to look for roommates, andÂ had boxes for people to check so that you could specify that you would not be interested in a male roommate, or a gay roommate, or a roommate with children.Â The question (well, one of the questions) in the case: was including those checkÂ boxes the speech of the individual looking for a roommate (in which case Roommates.com would not be liable under the CDA), or was Roommates.com an “information content provider” of the speech?
The important part of the decision (for our limited purposes) is this: “[T]he fact that users are information content providers does not preclude Roommate from also being an information content provider by helping ‘develop’ at least ‘in part’Â the information in the profiles.” In other words, under the reasoning in Roommates, just because Jane was the speaker of the underlying speech doesn’t necessarily mean that Dear Author is not also an information content provider responsible for the speech.
My first knee jerk reaction to this defense was that it wasÂ novel and daring and also doomed to failure, because it strikes me as flat-out freaking weird to say that an entityÂ is not liable for speech by the owner that directly relatesÂ to a central mission of the entity and occursÂ on the entity’s website. If that’s the case, then no entity could ever be found liable for anything said online. Google could make a Google Doodle that was outright defamatory, and then say, “Whoa, that was the speech of the person who created it!” And it can’t be the case that entities aren’t liable for things that are obviously the creation of the entity. The fact that some underlying person also came up with it is irrelevant; the entity wasÂ responsible for developing and creating it.
But the more I thought about it, the more I convinced myself that there’s more here than my knee-jerk reaction thought.
Let’s take some place like Salon or the Huffington Post, where there is some sort of editorial review process, but–basically this editorial process means that essentially random people can put up terrible opinions for pure clickbait purposes. Is that speech inherently the speech of Salon? Or is Salon providing a service in the form of a platform and minor editorial content? What about the Guardian? The Washington Post? This is an open question underÂ the CDA, and if you think about it, it’s one that has potentially huge ramifications for journalism. My gut feeling is that in the case of something like Salon, this is clearly speech ofÂ another information content provider and should be immune, although I don’t believe that a court has ever held that.
Applying that back toÂ the case of Dear Author, it doesn’t seem quite so bizarre to suggest that Dear Author is immune, for instance, for guests posts. Or for posts written by Janine or Robin (who I believe areÂ independent contractors and not corporate officers in any capacity).Â That’s just the Salon principle writ small.
So what about DA’s liability for things written by Jane? This could turn on some interesting factual scenarios about DA’s internal structure which I don’t know. My gut sense says, for instance, that if DA the entity treats Jane’s articles precisely the same way as it treats articles written by other independent contractors, she has a much greater chance of success.
All that being said, Jane’s earlier declaration indicates that discussion of publishers is a primary mission of Dear Author. I’m not convinced a judge will buy that DA itself is not an “information provider” responsible for the development of the blogpost in question when the discussion of publishing houses is so central to its mission that Jane says “I cannot, in good conscience, maintain a blog about this subject withoutÂ being free to report on all publishing houses.” TRO response, Exhibit A, at 9.
Further complicating all this is that Roommates.com is not controlling authority in Ohio, and that decision has been the subject of serious criticism. The decision was a sore enough point that it was called en banc in the 9th Circuit (that is: the judges of the 9th Circuit voted to rehear the case by a panel of 11 judges, after the opinion delivered by the three-judge panel; interestingly enough, the same judge that wrote the opinion in the three-judge panel also write the majority for the en banc panel, so see how far that en banc call got the 9th circuit).
In any event, I have no idea if anything is going to happen with this but it concentrated myÂ dorkiness to such a degree that I almost imploded.
My dorkiness is not done. The other fascinating thing about this defense: As a general rule, when you see a business entityÂ plus the owner get sued, usuallyÂ what happens is the owner does her best to duck out under some combination of limited liability rules while the business entity faces the claim. This is the first time I’ve seen someone claim that the business is immune but the owner is liable.
The reason I held off on discussion of the answer is that I wondered ifÂ Jane would claim in her reply that this was speech by Dear Author and that she was therefore not liable for itÂ in her personal capacity. (For the record, I know precisely jack about LLC forms in Iowa and don’t know ifÂ that is even remotely possible.) That, coupled with the CDA claim from DA, wouldÂ have been evenÂ more interesting (to me) (possibly not to anyone else in the world) than this bare claim–it would have forced EC to either argue that Jane’s speech was in her personal capacity (in which case DA would be off the hook under the CDA)Â or that it was in her corporate capacity (in which case Jane would personally be off the hook under limited liability principles)–meaning that potentially (but not necessarily) EC would have been forced to dismiss the lawsuit against one of them right off the bat. (As a further sidenote, this might have had interesting implications for whether Jane/DA could share a lawyer, too.)
But that didn’t happen and now I am really going to stop boring you with my dorktastic legalÂ counterfactuals. What this should convince you of is that nobody wants this case to turn on the CDA because as exciting as it is to legal dorks to make new law and blaze new precedent, it also has the potential to prove exceedingly expensive for both sides.
2 & 3. Â Truth and Substantial Truth.
I don’t think I need to go into these too much. We all understand that truth is a defense to defamation, yes? And that substantial truth is also a defense to defamation?
These defenses will turn on what comes up at discovery. No need to rehash the public evidence; we’re just going to await further evidence.
4. Qualified Privilege
I’m going to admit up front that qualified privilege is not my wheelhouse. That being said, here’s the barebones statement. A statement may be shielded by qualified privilege under these circumstances:
A communication made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which, without this privilege, would be actionable…
Hahn v. Kotten, 43 Ohio St. 2d 237, 245-46.
As an example: If you fire an employee because you think they’re lying to customers, and a potential employer calls and says, “Why did you fire this employee?” and you say, “Because they’re lying to customers,” that communication may be made under qualified privilege.
Here are further considerations:
The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only.
Id.Â at 246.
The sticky part of this defense is going to be whether publication was “in a proper manner and to proper parties only,” since it was an internet post.
I seem to have a vague memory that qualified privilege can sometimes operate more broadly for journalists, butÂ I know absolutely nothing about how precisely that works. It may be statutory and determined on a state-by-state basis? Or maybe not? See how little I know!–and I don’t want to spend hours figuring it out at this point. I’m going to wait for the briefs (if they come). Whether Jane as a blogger will be considered a journalist is an open question.
And finally, this defense doesn’t get DA/Jane anything more than what’s asserted in #7: if the speech here is privileged communication, it doesn’t mean that it’s completely nonactionable. It just means that EC has to prove that Jane spoke with actual malice.
5. Failure to state a claim
When I took Civil Procedure as a law student, lo in the dark and ancient days of 2004, I was taught that in order to state a claim upon which relief could be granted, all you had to do was vaguely wave your hand in the direction of the elements of a claim, cursorily allege that they had, in fact, been met because of reasons vaguely mumbled,Â and the court would allow you to proceed.
Since then, two Supreme Court cases have raised the bar. The standard for pleadings, as stated in Ashcroft v. Iqbal, is:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a â€œshort and plain statement of the claim showing that the pleader is entitled to relief.â€ As the Court held in Twombly, 550 U. S. 544, the pleading standard Rule 8 announces doesÂ not require â€œdetailed factual allegations,â€ but it demands more than an unadorned, the-defendant-unlawfullyÂ harmed-me accusation. Id., at 555 (citing Papasan v. Allain, 478 U. S. 265, 286 (1986)). A pleading that offers â€œlabels and conclusionsâ€ or â€œa formulaic recitation of the elements of a cause of action will not do.â€ 550 U. S., at 555. Nor does a complaint suffice if it tenders â€œnaked assertion[s]â€ devoid of â€œfurther factual enhancement.â€ Id., at 557.
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to â€œstate a claim to relief that is plausible on its face.â€ Id., at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonÂable inference that the defendant is liable for the misconduct alleged. Id., at 556. The plausibility standard is not akin to a â€œprobability requirement,â€ but it asks for more than a sheer possibility that a defendant has acted unlawÂfully. Ibid. Where a complaint pleads facts that are â€œmerely consistent withâ€ a defendantâ€™s liability, it â€œstops short of the line between possibility and plausibility of â€˜entitlement to relief.â€™â€
Got that? Let me summarize: It’s no longer just enough to recite the elements of the claims in federal court and say, “They have done all these things; curse them mightily.” A plaintiff actually has to allege facts that plausibly give rise to an inference that the person is liable.
In this case, the answers don’t specify exactly what defendants think are missing, but we can infer some of what is missing.Â For instance, under the Twombly/Iqbal standard, Ellora’s Cave hasÂ to allege facts indicating that Jane acted with actual malice. The complaint simply asserts that Jane acted with malice and hatred. It does not allege any facts from which weÂ could draw any reasonable inferences about Jane’s state of mind.
That’s going to have to be corrected or this litigation is unlikely to go anywhere on EC’s part.
6. Failure to join an indispensable party
The basic idea is this: When a court hears a case, they don’t want to monkey around. They want to resolve all the issues that can be resolved, and they want to resolve them as efficiently as possible.
In this case, the claim is that Tina Engler is not a party to the lawsuit, but the claim makes statements about Tina Engler which could be construed as defamatory. The court does not want to resolve this lawsuit, only to have Tina Engler say, “Oh, guess what, that resolved all the issues between DA and Ellora’s Cave, but I was also defamed, and now I am going to sue separately, so let’s do it all again!” That would be inefficient and painful. In cases like this, a party can ask for a person who is not part of the suit but who should necessarily be involved to joinÂ in, and–if the court agrees that that person’s presence is necessary–that person will have to join in, and the act of joining an additional party to the litigationÂ is called joinder.
Joinder is governed byÂ Rule 19 of the Federal Rules of Civil Procedure.
What’s going to happen with this? Well, if you take a look at Rule 19(b), it lays out the options. First, the court is going to have to decide if Engler’s absence would leave DA/Jane “subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations” — which I think is not going to pose many difficulties under the current circumstances.
At that point, if the court agrees with me,Â either the court willÂ order that Tina Engler be joined to this litigation, or, if that’s not possible for some reason, the court will have to decide if it’s better to have the lawsuit go forward, knowing that it will be incomplete, or to dismiss itÂ altogether.
This is one of those things that you do to cover your bases. You don’t want your client to have to defend againstÂ two lawsuits, so a good lawyer always makes sure you’ve joined all necessary parties.
7. Lack of actual malice
I’ve talked about the requirement that a defendant have actual malice–a legal standard meaning thatÂ Jane/DA wouldÂ have to know that they were lying, or should have known that they were lying, not that Jane/DA did not like Ellora’s Cave–in order to be liable for defamation.
I still think that this is the simplest, straightest path to the answer, and that it will prove dispositive in this case. It’s going to be really hard for Ellora’s Cave to prove that Jane was lying.Â Tina Engler hasÂ statedÂ that the rumors about Ellora’s Cave are false and were started by authors who wanted their rights back. Even if she can prove this, itÂ means that other people told DA/Jane lies. If that is true, that actually legally exonerates Jane. If other people told Jane lies, and Jane believed those lies, Jane is not liable for defamation. It’s that simple.
Thread D. The counterclaim.
This is very brief. Just so you know, a counterclaim is exactly what it sounds like. It says, “you claim I hurt you, and so now I’m claiming that you hurt me, too.”
DA claims abuse of process. This is a tricky claim to win; in essence, DA will have to prove that the litigation was filed for the purpose of harassing Dear Author and silencing and intimidating authors, cover artists, and editors. Proving that kind of purpose on EC’s part will be difficult.
We’ll see how that plays out.
 This is not as exciting or as impressive as it sounds–there aren’t that many of them. I stopped keeping up with CDA immunity questionsÂ circa 2011, so I’m no longer up to date. But I vaguely think that if there had been anything massively changing the law, I’d have seen it on the cyberprofs listserv or in theÂ brief search that I just conducted. This is my way of saying that my understanding of the CDA is probably not total shit. It is also my way of saying that this is something that I think is interesting, which means that I will probably have more to say about it than, say, the questions of qualified privilege or joinder, which I think are boring as hell.