Posted on behalf of Symbolman:
Takebackthemedia.com dissects the latest Breitbart filings in Sherrod’s case against Breitbart for Defamation. His lawyers respond to Sherrod’s lawyers re: Change of Venue, plus Defendants are all SLAPP-HAPPY, which is looking like it’s designed to extend legal wrangling, and put off the dreaded Discovery.
But... but... Breitbart exclaimed he was all FOR Discovery! He tweeted, “BRING IT ON!” Yeah, well, maybe he’s not so hot for it, after all. Would You put his ass on the witness stand? (In the end I hope to hell they do, though I would suspect Breitbart would settle long before that.) Is he using KOCH Brother’s money? Soros? Is Breitbart one of the greatest democratic moles of all time? America wants to KNOW, baby.)
And Please, please please, dear Judge, just use the federal court where we DON’T want to be to get us to California and use California law IN the federal court because it’s way better, see?
They also tell us all about how if the dog hadn’t stopped to lick his ass, he would have caught the rabbit. Something about Sherrod didn’t say “Simon Says” or some such legal bullshit.
So it goes:
REPLY IN SUPPORT OF SPECIAL MOTION TO DISMISS COMPLAINT UNDER THE DISTRICT OF COLUMBIA ANTI-SLAPP ACT OF 2010 BY DEFENDANTS ANDREW BREITBART AND LARRY O’CONNOR
‡I. PRELIMINARY STATEMENT Shirley Sherrod’s opposition papers do not defend or even address her statements that Andrew Breitbart is “one person that I’d like to get back at” and how it would be a “great thing” if his website was shut down – the very statements that define her case as a classic SLAPP suit. Sherrod does not raise any substantive arguments that the claims asserted in the Complaint are not directly implicated by the language of the D.C. Anti-SLAPP Act of 2010. To the contrary, she seeks damages against a journalist as a result of his commentary on a speech given by a high- ranking government official. This is a classic SLAPP suit and precisely the situation the statute was intended to address.
Instead of responding on the merits, Sherrod contends that the statute should not be applied at all on a variety of procedural grounds. These arguments have been asserted against anti-SLAPP statutes in other jurisdictions and have been uniformly rejected.
Gosh! That evil person wants to SHUT Breitbart UP, and SHUT down his site. Him. That loving, caring man devoted to rooting out racism. See? That makes it a SLAPP suite.
Oops. No, it doesn’t, said the Plaintiff in their last glorious filing. Red Meat for the winners, which had us laughing so hard we weren’t able to post, but you can read those HERE.
Basically, Sherrod’s lawyers were standing on Breitbart’s head and having a relaxing smoke, maybe talking football, while Breitbart struggled and bubbled, and whined. Sherrod’s team sewed it all up nice and neat, either Defendants DIDN’T File in time, or they did and it was a joke, and even if they didn’t MEAN TO, either way they needed to PAY for court costs for being frivolous and not handing out party hats to everyone. So now Breitbart is walking around with a piece of toilet paper stuck to his heel and hoping no one will notice. Doesn’t look like they’ll be able to pull it off, but then again, I’m neither a lawyer nor a Judge. Guess we’ll see.
I’m betting the answer will be, "Get this SLAPP crap out of my court. You’re lucky I don’t make you pay for this bullshit, twice." Only in like, cool, warm legalese. They don’t get to use the old Gong Show Hook to yank them out of the courtroom.
Plus, they call him a "Journalist." Whoa. Didn’t he go to some commie socialist school and major in roller skating around campus in shorts while being ignored and getting really pissed, and stuff? Or did he attend sixteen universities like Sarah Palin and get that Journalism sheep skin?
For the reasons set forth in Defendants' Rule 12(b) motion, the case does not belong in this Court and should be transferred to the Central District of California. It is apparent that Sherrod is seeking to avoid California's more mature anti-SLAPP statute in order to commence discovery in a far away and inconvenient forum for the Defendants. If the Court declines to transfer the case for improper venue, the Defendants suggest that the Court consider holding a conference to discuss how to approach the SLAPP issues in light of the concurrently filed Rule 12(b) motion. In the event the Court finds that this is the proper Court to rule upon the anti- SLAPP motion, it should be granted for the reasons stated herein. …
Please, please, please, oh pretty please let us move it to California? PLEASE? We KNOW we’re going to get our asses handed to us in DC, we just KNOW it. Can’t we just talk about it for a little while more, a conference, maybe text some, Skype? You know we DID file this pile of spoor, and that means you at least have to THINK about maybe dealing with it, if nothing else to get that SMELL out of the room. Besides, we have to look GOOD for Breitbart by filing lots of big words and many papers because we just know the bastard's going to get sued more and come running to us. Pays the bills, you know how that is, right, Judge? Just grandfather this sucker in, we were busy interviewing Breitbart and couldn’t file in time, you know how that idiot goes on, and on, and on…
SLAPP statutes are retroactive and that they apply in federal court. Sherrod’s claim that the issue is a straightforward either/or, procedural/substantive analysis, is wrong. To the contrary, the tests for retroactivity and applicability in federal court are not contradictory because they serve different purposes. The Court should follow this well-established precedent and apply the D.C. Anti-SLAPP Act in this Court.
THIS part kills me. They SEEM to be making the case for the other side. PLEASE let us move this to California, because in California they have better laws to aid us in this frivolous SLAPP garbage, and by the way USE DC LAW IN THIS COURT to get us over There, because California law is BETTER and should be applied right here. They say that shit a LOT. Over and over.
C. Defendants timely filed their motion. Sherrod also contends that the motion should not be considered because it was untimely, as it was not filed within 45 days of service of the Complaint. The motion was filed on April 18, 2011 pursuant to two Court orders issued on March 15, 2011 and April 12, 2011. Sherrod consented to both orders and requested her own extension to file opposition papers, which the Defendants agreed to as a matter of course. See April 26, 2011 Minute Order. Sherrod’s citation to Blumenthal v. Drudge, 2001 WL 587860 (D.D.C. Feb. 13, 2001) is irrelevant, because there were no court-ordered extensions in that case.
The extension ordered by the Court is broad and unambiguous; it extended the time for Defendants to "answer, move, or otherwise plead in response to Plaintiff’s complaint." (emphasis added). This standard and straightforward language necessarily includes any response, including a Motion to Dismiss pursuant to the D.C. Anti-SLAPP Act. Sherrod does not cite the parties’ agreed-upon language for the orders; rather, she claims that "at no point in time did Defendants ask for an extension of the statutory deadline for this motion, nor would Plaintiff have consented if asked." Opp. 13 n.7. Not surprisingly, Sherrod cites no authority drawing any distinction between a "statutory" deadline or some other type of deadline.
"Otherwise" Plead? Looks an awful lot like an, "I know you are but what am I?" line of reasoning, only with big words, and citations, and crazy weird but cool funky punctuations. "You never said we couldn’t when you did, but then you didn’t not change your mind, because we say so, right here with lots and lots of words, like when you had to bulk up your binder in school by writing REALLY BIG."
Simple. I agree with Plaintiff. There’s simply NO reason for a SLAPP suit. Junk. They blew the deadline. This is like a cat in a litter box trying desperately to cover up what’s left of tuna.
Sherrod’s contention that Breitbart does not "show any signs of having his First Amendment rights 'muzzled,' as his persistent blog postings and national tour to garner publicity for his new book evidence," does not affect the applicability of the anti-SLAPP statute to this case. Opp. 17; see also Opp. 3 n.2. It is well recognized that media defendants such as Breitbart are fully entitled to utilize the procedures afforded by anti-SLAPP statutes notwithstanding their ability to continue to exercise their First Amendment rights.
Nope, he’s not muzzled. Just ask Rep Weiner. I'm sure he'd agree. Can’t wait for Sherrod’s lawyers to dive on that little jewel. Breitbart waving a penis picture around, scraped off the internet by a madman, and going on CNN unchallenged, to make remarks about Rep Wiener associating, you know, wink, wink, with them young girls. A sleazy remark not vetted by either CNN OR Breitbart, which came from a person exposed by The Smoking Gun who’d been charged with drunk driving, physically abusing a woman, and a frequent poster to PORNO sites. Breitbart's jizz bucket mopper. Yeah. Ask the FBI while you're at it. They’ve got all the particulars. A lot of us made sure.
In any event, Sherrod ignores the fact that she repeatedly threatened to sue Defendants and opined that it would be a "great thing" if their website was shut down. Moreover, she and her attorney actually have been successful in silencing Breitbart. For example, on October 31, 2010, her then-counsel Rose Sanders gave an interview wherein she objected to Breitbart’s scheduled appearance on ABC News’ election night coverage, stating "Having him on that show is like rewarding a Klansman – giving a Klansman an award for burning a cross on Shirley Sherrod’s house."11 ABC then dropped Breitbart from the election night coverage. Furthermore, Sherrod is continually scrutinizing Breitbart’s public statements and attempting to use his speech against him in this litigation. Her opposition papers are replete with cites to public statements Breitbart has made, none of which are relevant to the merits or to the claims at issue in the Complaint.
11 See Joe Strupp, Sherrod's Attorney Blasts ABC, Says Hosting Breitbart Is 'Like Rewarding a Klansman,' Media Matters for America, available at http://mediamatters.org/... (attached as Exhibit 1).
Hey! Props to Media Matters, way to go guys! NOW Breitbart CLAIMING Sherrod’s Attorney was actually THE ONE responsible for getting Breitbart KICKED OFF OF ABC’s Election Night Coverage. Guess they didn't notice the HUGE outcry from the Public at Large, who HAMMERED ABC continuously with emails, while social media lead the way, TWITTER hashtags, Blogs, etc urged ABC to take out that trash, all aimed at Breitbart, branding him as a Serial LIAR, and NOBODY wanting to hear another goddamn word he had to say. Not ONE WORD.
Nope. It was THE WEB that rose up, the People sick and tired of him. Not a single individual. A Tsunami. Guess Breitbart’s lawyers don’t Tweet or read blogs. Hey, wait a minute, doesn’t HE own a blog? Maybe they read that one. But he’s a JOURNALIST. Because they said so.
When word of a potential lawsuit emerged I predicted in the end it would boil down to the definition of what constitutes a "journalist" -- here in the age of New Media. I still say I’m right.
Gotta love that quote, "Hosting Breitbart is like rewarding a Klansman." Beautiful and apt. Which, by the way, is an OPINION. Breitbart’s team is pushing that for their client. First Amendment. Bullshit. Don’t think that will fly. Please.
For the reasons set forth in Defendants’ motion to dismiss pursuant to Rule 12(b)(6), and their concurrently filed reply brief, each of the purportedly defamatory statements fails as a matter of law because it was a non-actionable expression of opinion based on truthful disclosed facts, non-actionable opinion that is not a provably false statement of fact, or a constitutionally-protected expression of opinion.
Uh huh. Maybe for Larry Flynt. Not for this insufferable excuse for a human being.
Toast. Mach 2.
Next up, we’ll go boil down the next Filing of documents. It’s sweet.
Yet, they refuse to admit Breitbart has “a purty mouth.” But if it keeps up like this…