Reposted on behalf of @Symbolman from Take Back The Media:
Takebackthemedia.com took a little time to dissect the latest Sherrod filing in her case against Breitbart for defamation. Specifically her lawyers response to Breitbart’s Pro Bono lawyer’s curious filing for a change of venue that threw everything but the kitchen sink in there, including precedent law from between 21 to 60 years ago, one of which has long since been invalidated by CONGRESS. (You’d think his lawyers might notice that.)
TWITTER now stars in these court papers (Keith Olbermann broadcasts were used as a reference in Breitbart’s previous Change of Venue filing, in a bizarre “neener neener” fashion. You had to be there.)
Just so you know, Breitbart’s lawyers hosed themselves by FIRST moving the venue from DC TO DC court, THEN demanding it be moved to California, because Breitbart can’t possibly make it to DC or run his site from an IPhone. Gosh, he hardly EVER goes there, well, except for CPAC, and an alcohol saturated Book Release, and speaking at the Heritage Foundation, and.. well, Sherrod’s lawyers have assembled a nice little fact pattern that may explain why Breitbart seemingly blacks out and wakes up, elsewhere, DC, Las Vegas, sometimes even in California.
So, here are some nuggets for you to digest, if you want to read the entire filing by Sherrod’s lawyers in answer to Breitbart’s last filing, you can download that HERE. This is Da Kine, brothers and sisters. Primo lawyering. Breitbart’s lawyers are handed their asses on a plate, piled high, with Grey Poupon at the side.
Let’s get started:
TWITTER Statements by Breitbart and O’Connor are in use in Sherrod lawsuit. Breitbart’s TWITTER Taunting is apparently now part of the Sherrod case. And oh baby, is he still DUMB. In a Twitter exchange months ago I warned him to shut his big fat mouth, but NO. Instead he called my wife a racist and blocked both of us. He calls nearly everyone a racist before he blocks them. His special way of saying, “Kiss my ring.”
Sherrod’s lawyers take no prisoners:
INTRODUCTION
“When Plaintiff first filed her lawsuit in February 2011, Defendants Andrew Breitbart and Larry O’Connor each issued public statements taunting Mrs. Sherrod to “Bring it On,”1 suggesting that Defendants were interested in defending the merits of their defamatory statements. Now, however, several months later, they have thrown up a series of removal, transfer, and dismissal motions, each designed to impose a procedural artifice delaying or preventing an on-the-merits defense of their statements, and each designed to play games with the jurisdiction and venue of the federal courts. Most troubling, however, is the fact that Defendants’ various submissions to this Court demonstrate a consistent pattern of misstating the applicable legal standards and authorities—and also the facts alleged in the Complaint.”
First, Defendants have filed a Special Motion to Dismiss under the District of Columbia Anti-SLAPP Act of 2010, an act that—by their own admission—did not become effective until March 31, 2011, nearly a month and a half after the Complaint in this case was filed. To compound this obvious problem, Defendants fail entirely to explain how the Act could possibly have any retroactive effect; instead, they merely conclude it is retroactive in a footnote with a cursory citation to a case that was limited and distinguished by the D.C. Court of Appeals just last year. Moreover, Defendants offer no explanation for why their motion is not procedurally defaulted by the plain language of the statute they are attempting to employ—given that they filed more than two weeks after the statutory deadline had passed. With all of these (and other) fatal flaws, Defendants’ “special” motion fails as a matter of law and should be summarily rejected.
1
See http://biggovernment.com/... http://twitter.com/... (“Oh… in case anyone missed it, because it was kind of late on Saturday night when I said it… let me repeat: ‘Bring it on!’”).
Here’s another TWITTER statement by Breitbart, begging Holder to hold Sherrod accountable FOR racial Discrimination. (He OWNS it, Now he gets to Pay for it):
As alleged in the Complaint, Defendants’ publications—including those on BigGovernment.com, YouTube.com, and Twitter.com—when taken as a whole, clearly accuse Mrs. Sherrod of admitting that she exercised her USDA job in a racially discriminatory manner.
33
28
29
A fourth statement was posted by Defendant Breitbart on Twitter that same day: “Will Eric Holder’s DOJ hold accountable fed appointee Shirley Sherrod for admitting practicing racial discrimination?” Id.
Mr O’Connor TWEETS Show that he travels to DC as well. Oops.
“Mr. O’Connor routinely travels here, too:19
On April 10, 2011, Mr. O’Connor publicly alerted his “DC pals” that it “[l]ooks like I’ll be there tomorrow,”20 explaining that he’d be spending nearly a week in the District.21
See http://bigjournalism.com/.... See, e.g., http://video.cpac.org/... (video of Defendant Breitbart’s keynote speech at the
2010 CPAC conference in Washington, D.C.). See http://www.life.com/....
In addition to these personal appearances, Mr. Breitbart has been a frequent contributor to the Washington Times.
See http://www.urbanskishow.com/....
In light of Defendants’ extensive travel and connections here, it is no wonder they carefully distinguish their contacts with the District (“[n]either Breitbart nor O’Connor have [sic] ever lived or worked in D.C.,” Defs.’ Mem. at 4) from their contacts with Georgia (“neither Breitbart nor O’Connor regularly does or solicits business, engages in any other persistent court [sic] of conduct, or derives substantial revenue from goods used or consumed or services rendered in Georgia,” id.).
See http://twitter.com/.... See http://twitter.com/.... “
On Breitbart’s Eric Holder TWEET Statement (Defendants describe TWITTER as a “Playful” Medium) Gosh, he was just being FUNNY, like Limbaugh when HE gets caught:
Statement #6: “Will Eric Holder’s DOJ hold accountable fed appointee Shirley Sherrod for admitting practicing racial discrimination?”
…
“While the statement may end with a question mark, there is nothing rhetorical about it. It is a call to action by Mr. Breitbart to the Attorney General to “hold accountable” Mrs. Sherrod for “admitting practicing racial discrimination,” the conduct Mr. Breitbart falsely accused her of doing. Despite its publication in what Defendants describe as a “playful” medium, see Defs.’ Mem. at 24, the statement is directly illustrative of the seriousness of the conduct of which Mrs. Sherrod is accused. Mr. Breitbart clearly implies that Mrs. Sherrod engaged in criminal wrongdoing and that her conduct rose to a level requiring investigation by the nation’s top law enforcement official—hardly a flippant allegation.”
Considering Breitbart & O’Connor hardship of travelling to DC as Venue:
“According to Defendants, they “typically” work on Mr. Breitbart’s websites while in California, see Defs.’ Mem. at 3, and Mr. Breitbart purportedly “would not be able to perform many of his duties as publisher of and contributor to the Breitbart Websites from Washington, D.C.,”…
Although Defendants may prefer to defend this case near their homes, they cannot obtain transfer solely for their ease.
Second, in this age of iPhones, iPads, BlackBerrys, and laptops, Defendants’ claim that they could not attend to Mr. Breitbart’s websites while litigating here strains credulity. Indeed, Mr.O’Connor recently made this point himself—chastising as “incredible and, frankly, unacceptable” a reporter’s claim that she could not correct a blog post on the New York Observer’s website because she was temporarily out of the office.6
As Mr. O’Connor put it:
‘Ms. Stoeffel, let’s get real. I edit a web site and I own two Verizon broadband cards and a smart phone that can amend the site at any moment. If for some reason those devices fail, I have two colleagues I can call at any given moment to fix an error on the site. And Breitbart.com is a relatively small operation. Surely there are systems in place at the New York Observer to fix an outright lie that appears on their site.’
Defendants do not explain why these same tools would not allow them to meet the needs of Mr. Breitbart’s websites while they spend a few days across the coming months litigating in the District.
Third, Defendants fail to mention that they routinely travel to the District when it suits their interests to do so—further contradicting their position. In fact, both Mr. Breitbart and Mr. O’Connor were personally hand-served with the Complaint in the District of Columbia while voluntarily attending a conference here and promoting their websites and radio show. Indeed, within days of filing his motion to transfer, Mr. Breitbart traveled to the District to attend at least two separate events:
On September 12, 2010, Mr. Breitbart gave a speech at the “Taxpayer March on Washington” rally;13
See http://www.youtube.com/....
See http://biggovernment.com/... indignation/; see also http://www.youtube.com/... http://www.youtube.com/....
See http://www.breitbart.tv/... see also http://www.wmal.com/....
See, e.g., http://video.cpac.org/... (video of Defendant Breitbart’s keynote speech at the 2011 CPAC conference in Washington, D.C.).
See http://www.goproud.org/... breitbart-headlined-by-singersongwriter-sophie-b-hawkins/.
See http://gwrepublicans.org/.... See http://www.freedomworks.org/....
On April 21, 2011, Mr. Breitbart attended an event hosted by DC Caller and Americans for Tax Reform to promote his new book.7
That same week, Mr. Breitbart attended an event hosted by the Heritage Foundation, again to promote his book.8
These appearances in the District followed at least four others in the few months since Mrs. Sherrod filed her complaint:
On March 12, 2011, Mr. Breitbart co-hosted a radio program with Representative Michelle Bachman on D.C.-based radio station WMAL to discuss the Pigford litigation pending in this courthouse.9
On February 10, 11, and 12, 2011, Mr. Breitbart spent several days in the District attending the CPAC Conference at the Marriott Wardman Park Hotel, where he was personally served with the summons and Complaint in this case.10
On February 10, 2011, Mr. Breitbart hosted a party at the 18th Street Lounge for the organization “GOProud.”11
On February 8, 2011, Mr. Breitbart gave a speech at George Washington University, where he saw fit to condemn Mrs. Sherrod as “a much worse person than I ever thought.”12
These appearances are typical of a pattern of frequent trips here:
Yep. Apparently there is also video footage of Breitbart getting drunk as a skunk at this Book Opening Party. Guess that’s not admissible. Maybe he blacks out and wakes up in DC sometimes. Or Vegas.
On April 15, 2010, Mr. Breitbart attended and spoke at a Tea Party rally that was part of “Washington, D.C. Tax Day”;14
From February 19-21, 2010, Mr. Breitbart attended the CPAC Conference at the Marriott Wardman Park Hotel;15 and
On October 21, 2009, Mr. Breitbart held a press conference at the National Press Club.16
Presumably, there are others.17 Indeed, just days ago Mr. Breitbart admitted on a radio show: “I think that I spend a lot of time [unintelligible] you know, in Washington, maybe, you know, two weeks, three weeks out of the year. And every time I get on the plane, I feel like I’m leaving Las Vegas, thinking thank god I’m leaving this hell hole.”18 Notwithstanding Mr. Breitbart’s obvious contempt for the District of Columbia, Plaintiff would expect that a trial in this case would take less time than Defendant Breitbart has already admitted he voluntarily spends in D.C.
–For the record, we were sued in a SLAPP suit for a single statement on Takebackthemedia.com for a half a million dollars IN CHICAGO, while we lived IN CALIFORNIA. We know a little bit about this kind of suit and legal implications, perhaps even more than Breitbart’s Pro Bono lawyers, who in my opinion are putting on a legal dog and pony show for a client that may very well end up living in a van down by the river when this suit is over. Guess you get what you pay for. –
On the tacky addition of the SLAPP motion to dismiss to the case:
“First, Defendants have filed a Special Motion to Dismiss under the District of Columbia Anti-SLAPP Act of 2010, an act that—by their own admission—did not become effective until March 31, 2011, nearly a month and a half after the Complaint in this case was filed. To compound this obvious problem, Defendants fail entirely to explain how the Act could possibly have any retroactive effect; instead, they merely conclude it is retroactive in a footnote with a cursory citation to a case that was limited and distinguished by the D.C. Court of Appeals just last year. Moreover, Defendants offer no explanation for why their motion is not procedurally defaulted by the plain language of the statute they are attempting to employ—given that they filed more than two weeks after the statutory deadline had passed.”
On arguing the case in a court they’re trying to get a case dismissed from, using a venue statute amended by CONGRESS TWENTY-ONE YEARS AGO:
“Fully cognizant that this case was originally filed in D.C. Superior Court and then removed by Defendants to this Court, Defendants nonetheless argue for dismissal under a statute that would only apply if the case had originally been brought here. For that straightforward reason, much of their brief is moot. Defendants then compound their mistake by asserting that caselaw predicated on a version of the venue statute amended by Congress twenty- one years ago dictates the correct venue. It does not. The removal statute, 28 U.S.C. § 1441, governs venue in this case and makes venue proper here.“
Why this is the proper venue because of their Pigford defense? Pigford Schmigford:
“Indeed, Defendants themselves have stated in no uncertain terms, both in writing and directly to the Court during the April 7, 2011 conference in chambers, that they will seek discovery from USDA officials and from third parties in the District of Columbia related to the Pigford cases that are currently pending before Judge Friedman of this Court.2 Although Plaintiff unequivocally believes that Pigford-related discovery is irrelevant to this case, Defendants should not be permitted to transfer this case all the way to California only to turn around and demand discovery and testimony from third parties located in the very district they left. Defendants’ pleadings make clear, however, that this is exactly what they intend to do.”
On the irony of their claim (Breitbart’s lawyers in their last filing seemingly got the brilliant idea that since they alleged Keith Olbermann called Tea Party “Racists” on his show on MSNBC that Breitbart was freed up somehow to attack and defame Sherrod.):
“Defendants’ posture here is especially ironic because the tactics and statements they defend exemplify exactly what they claim to be fighting against. According to their brief, Defendant Breitbart was a “well-known [] defender of the Tea Party” who was angered when “claims of racial slurs were being fabricated by the ‘left’ and the ‘progressive media’ as a tactic to marginalize growing support for the Tea Party movement.” Id. at 17-18. To get back at them, however, Mr. Breitbart falsely accused Mrs. Sherrod of the same type of prejudice that was being unfairly leveled at the Tea Party. That tactic is unacceptable, no matter who employs it. In Defendants’ case, however, by specifically and falsely stating that Mrs. Sherrod admitted practicing racial discrimination in the course of her federal duties, it amounts to defamation.”
See. It’s all just RHETORICAL, HYPERBOLIC statements made in the midst of battle. Oops, nope.
“Finally, in an effort to divert the Court’s attention from the narrow, specific defamatory statements about Mrs. Sherrod that are the subject of this action, Defendants veer far afield of the legally relevant facts alleged in the Complaint. Defendants suggest that because they are journalist-bloggers writing about public affairs, they have the license to malign and defame someone when it helps them to “turn[] the rhetorical tables” on a political issue. See Defs.’ Mem. at 20 [Dkt. 22]. Indeed, there is little other explanation for the inclusion in Defendants’ brief of pages of background detailing the arguments between the NAACP and the Tea Party in 2009 and 2010. Id. at 16-21. Defendants attempt to justify their actions as mere “rhetorical,” “hyperbolic” statements made in the midst of battle. Id. at 30. But Shirley Sherrod was not part of that political battle. In fact, she was not even a member of the NAACP when they honored her with an award in March 2010…
…Defendants’ posture here is especially ironic because the tactics and statements they defend exemplify exactly what they claim to be fighting against. According to their brief, Defendant Breitbart was a “well-known [] defender of the Tea Party” who was angered when “claims of racial slurs were being fabricated by the ‘left’ and the ‘progressive media’ as a tactic to marginalize growing support for the Tea Party movement.” Id. at 17-18. To get back at them, however, Mr. Breitbart falsely accused Mrs. Sherrod of the same type of prejudice that was being unfairly leveled at the Tea Party. That tactic is unacceptable, no matter who employs it. In Defendants’ case, however, by specifically and falsely stating that Mrs. Sherrod admitted practicing racial discrimination in the course of her federal duties, it amounts to defamation.
This case is not about politics, the Tea Party, or the NAACP. It is about specific false and misleading statements made about one woman who had nothing to do with the controversy Defendants so meticulously describe in their brief.”
Just to be clear, Breitbart and his lawyer don’t seem to consider Racist to even BE Defamatory anymore, either, apparently to Breitbart using the term Racist is “the New Black”:
Defendants further strain credulity by suggesting in their brief that their statements are non-actionable because certain of the terms they use “no longer carry any objective defamatory weight under libel law.” Defs.’ Mem. at 34. This is a bold assertion in any context, but it is especially audacious here given the national uproar that arose when Defendants first broadcast their statements about Mrs. Sherrod’s racist “admissions.”
So, go READ this document if you want to be further reviled, or exhilarated as Sherrod’s lawyers shove Breitbart’s pleadings up his ass like Hitler receives a fat pineapple in Hell each day at 4:00, Sharp.
Our Pleasure.
