Michael Savage loses censorship bid, victory for free speech [fs]

[Declan McCullagh <declan () well com>]

[Thomas Leavitt is of course a frequent contributor to Politech. --Declan]

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Date: Tue, 06 Jan 2004 12:36:55 -0500
From: "Paul Levy" <plevy () citizen org>
To: <declan () well com>
Subject: Big victory for the free speech -- the right to boycott

We have recently received an order from Judge Guzman granting the motion
of Talk Radio Network to dismiss the lawsuit that it brought against
Thomas and Gunilla Leavitt, among others, for their web sites denouncing
talk radio host Michael Savage and urging consumers to contact Savage's
advertisers to express their outrage at his bigotry.  The "voluntary"
dismissal was filed on the day that TRN was finally due to file its
response to our motion to dismiss.

One word to the wise when people have to defend these cases -- we have
been finding that when we couple a motion to dismiss for lack of
personal jurisdiction with a motion to dismiss because a complaint does
not present a valid claim under the First Amendment, many judges are
refusing to address the request for dismissal on the face of the
complaint without FIRST requiring the defendant to submit to discovery
on the issue of personal jurisdiction.  The rules require all grounds
for dismissal to be joined in a single motion at the outset of a case,
so it is not clear how to avoid this problem, but I raise it for
consideration.

In the Leavitts' case, for example, the judge deferred briefing on the
motion to dismiss to allow the plaintiff to take discovery.
Understandable at one level, because many cases say that discovery is
allowed to determine whether there might be a basis for personal
jurisdiction; yet that fact gives plaintiffs with meritless suits an
incentive to seek discovery as a way to keep applying the financial
pressure that the suit is intended to impose on a critic.  And many
judges will not require briefing BEFORE the discovery, because they only
want to consider the motion to dismiss once.

Ironically, though, we used this order as a basis for taking our own
discovery on jurisdiction, inquiring into the nest of interlocking
companies established by the Foundation of Human Understanding (which
owns Talk Radio Network) to determine whether the citizenship of the
"real" plaintiff was in California, which would prevent them from
maintaining suit in federal court based on diversity of citizenship.  We
will never know whether it was the threat of this discovery or the need
to answer our motion to dismiss that ultimately persuaded TRN to throw
in the towel (somebody else in litigation against TRN will have to
pursue that one).

Still, this strategy of countering discovery with discovery is not one
that can be done cheaply, and the possibility that the  litigation will
be expensive and more time consuming makes it harder for defendants to
find pro bono representation.  If, for example, we did not have
donations to support our work, and the support of Jenner and Block as
our local counsel, and other private practitioners who were providing
pro bono representation of the Take Back The Media web site (a complete
list is in our press release below), we might well not have been able to
pursue this discovery strategy for the Leavitts.   More important, if we
want to come up with the best legal protection against this sort of
harassing litigation, we really need to find ways to get the cases
dismissed on their face.


Anyway, a nice victory for free speech (and for your list, which is how
the Leavitts found us in the first place).  Here is our press release:


Talk Radio Network Drops Suit That Aimed to Shut Down Web Sites
Critical of Right-Wing Radio Host

 WASHINGTON, D.C. - The Talk Radio Network today dropped a suit aimed
at shutting down Web sites that urge people to boycott companies that
advertise on a nationally syndicated right-wing radio show. The suit was
filed against four people who operate three Web sites critical of
right-wing radio host Michael Savage. Public Citizen, which has a
history of defending speech on the Internet, is representing two of
those Web site operators, Thomas and Gunilla Leavitt of Santa Cruz,
Calif., who created www.savagestupidity.com.

 Their site, which Public Citizen defended on First Amendment grounds,
criticizes offensive and bigoted comments made by Savage, who rails
against African-Americans, Hispanics, Jewish liberals, women, gays,
liberals and a variety of other groups on his show, "Savage Nation." The
Web site also has audio clips from the show and calls for the public to
write letters to Savage's advertisers urging them to withdraw their
support from his program. The Web site urges the public to boycott
advertisers who continue to support Savage.

 The Talk Radio Network, based in Grants Pass, Ore., filed suit on May
12 in the U.S. District Court in the Northern District of Illinois,
alleging that the defendants are running commercial Web sites that make
false and malicious statements about Savage and attempt to interfere
with Talk Radio Network's relationships with advertisers, specifically
Culligan, an Illinois-based company. The suit asked the court to shut
down the Web sites and force the operators pay several hundred thousand
dollars in damages.

 In a brief (posted at
http://www.citizen.org/documents/leavitt%20dismiss%20memo.pdf) filed
in June, Public Citizen argued that the network's suit was flawed in
many ways. First, it was filed in the wrong court, because the Leavitts
live in California. Second, the site expressed the Leavitts' opinion
about Savage, and the statements they made about him are to their
knowledge true, so the criteria for libel of a public figure were not
met. Finally, the network argued that the posting of clips of Savage's
show violated its copyright, but the U.S. Supreme Court has repeatedly
made clear that such a "fair use" of material is protected under the
First Amendment.

 "The Leavitts have every right to criticize Savage's statements. Also,
calling for a boycott is a time-honored action that has long been
protected by the First Amendment, and the court would have recognized
that," said Paul Alan Levy, an attorney with the Public Citizen
Litigation Group who represented the Leavitts. "We're pleased that the
company has seen fit to drop its case."

David Layden and David Bradford of Jenner & Block were local counsel
for the Leavitts.  Julie Trester of Meckler, Bulger & Tilson in Chicago,
and Gregory Todd, a solo practitioner in New York, represented the other
main defendant in the case.
###


Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation/litigation.html

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Date: Tue, 06 Jan 2004 12:40:22 -0500
From: "Paul Levy" <plevy () citizen org>
To: <declan () well com>
Subject: An additional thanks
Mime-Version: 1.0

Our press release should also have mentioned Lee Werdell, a private
practitioner in Medford, Oregon, who was our local counsel in the
discovery dispute with TRN

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation/litigation.html
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