jameswoods doe oppo
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DEFENDANT JOHN DOE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO CONDUCT EARLY DISCOVERY
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BROWN WHITE & OSBORN LLP KENNETH P. WHITE (Bar No. 173993)333 South Hope Street, 40
th Floor
Los Angeles, California 90071-1406Telephone: 213. 613.0500Facsimile: 213.613.0550
Attorneys for DefendantJOHN DOE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
JAMES WOODS,
Plaintiff,
v.
JOHN DOE, ET AL.,
Defendants.
Case No. BC589746
Assigned to: Hon. Mel Recana
DEFENDANT JOHN DOE’SOPPOSITION TO PLAINTIFF’S EXPARTE APPLICATION TOCONDUCT EARLY DISCOVERY;
DECLARATION OF KENNETH P.WHITE; EXHIBITS
Date: August 27, 2015Time: 8:30 a.m.Dept.: 45
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MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
Plaintiff James Woods (“Plaintiff”) is abusing the court system to lash out at a
constitutionally protected political insult – the very sort of insult he routinely uses himself.
Now, by this ex parte application, he seeks further to abuse this Court’s processes to identify
an anonymous critic. The Court should deny it, or at a minimum set a briefing schedule so
that the important First Amendment issues presented can be briefed properly and resolved on
a full record, and so that Defendant John Doe (“Mr. Doe”) may file his anti-SLAPP motion.
Plaintiff, an internationally known actor, is active on Twitter, a social media platform.
There he is known for engaging in rough-and-tumble political debate. Plaintiff routinely
employs insults like “clown” and “scum,” and even accuses others of drug use as a rhetorical
trope:
But Plaintiff apparently believes that while he can say that sort of thing to others,
others cannot say it to him. He has sued Mr. Doe for a derisive tweet referring to him as
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“cocaine addict James Woods still sniffing and spouting” in the course of political back-and-
forth. Complaint at ¶ 9. He also complains, at length, that Mr. Doe has called him things
like a “clown” and “scum.” Naturally, Plaintiff has himself called others “clown” or “scum”
on Twitter.
Plaintiff now seeks “early discovery” allowing him to subpoena Twitter to obtain Mr.
Doe’s identity. He tried once before; Twitter objected because the subpoena was
procedurally defective and did not give Mr. Doe notice. This Court should reject Plaintiff’s
request, or at a minimum order a briefing schedule to address it:
Plaintiff cannot prevail on his claims. It is axiomatic that only provably false
statements of fact can be defamatory. Mere rhetorical hyperbole not meant to be
taken literally cannot be, and is absolutely protected by the First Amendment. In
the context of Twitter – specifically including Plaintiff’s own penchant for
hyperbole there – Mr. Doe’s statement cannot be taken as a factual assertion that
Plaintiff is a “cocaine addict.” Rather, Mr. Doe’s tweet was part of a familiar
“meme,” or in-joke, referring to Plaintiff that way as an insult.
Because Plaintiff cannot prove defamation, he is not entitled to pierce Mr. Doe’s
anonymity. The First Amendment protects the right to speak anonymously, and
prevents Plaintiff from using legal process to unmask an anonymous speaker when
he has no case.
Plaintiff will be filing an anti-SLAPP motion on September 1, 2015, which will
stay discovery and render the issue moot.
Mr. Doe, and Twitter, should have a full and fair opportunity to address the First
Amendment issues raised by Plaintiff’s request.
Therefore, this Court should deny the ex parte application, or else set a briefing
schedule so that all interested parties may be heard on reasonable notice.
//
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II.
STATEMENT OF FACTS
A. Twitter Is A Social Media Platform Known For Hyperbole
Twitter is a social media platform – that is, a place for people to interact
electronically. One court described its function as follows:
‘Twitter’ is a ‘real-time information network that connects’ users to the ‘latest
information about what you find interesting. At the heart of Twitter are small bursts
of information called Tweets. Each Tweet is 140 characters in length....’ Twitter users
may choose to “follow” other users. If user No. 1 decides to ‘follow’ user No. 2,
Twitter messages (Tweets) posted by user No. 2 will show up on the home page of
user No. 1 where they can be read. (United States v. Cassidy, 814 F.Supp.2d 574, 576 (D.
Md. 2011).)
Plaintiff is a Twitter user under the name @realJamesWoods, and Mr. Doe is a
Twitter user under the name @AbeListed.
Twitter is known for hyperbole, overheated rhetoric, and ad hominem attacks. It’s
“notorious for spreading misinformation.”1 It’s known for being relentlessly insulting: “the
Twitter universe is never happier than when it's being snarky, or downright nasty, to
someone.”2
B. Plaintiff Participates In Twitter’s Rough-And-Tumble Culture of Insult
Plaintiff himself is a well-known part of Twitter’s culture of political hyperbole. He’s
been called “Obama’s biggest twitter troll”3 and a “prolific, highly articulate, and politically
1 New Scientist, Twitter Bots Grow Up and Take Over the World , July 30, 2014, retrieved fromhttps://www.newscientist.com/article/mg22329804-000-twitter-bots-grow-up-and-take-on-the-world/
2 CNN.com, Study: Twitter Opinions Don’t Match the Mainstream, March 4, 2013, retrieved from
http://www.cnn.com/2013/03/04/tech/social-media/twitter-reactions-public-opinion/.3 Daily Beast, How James Woods Became Obama’s Biggest Twitter Troll, December 31, 2014,
retrieved from http://www.thedailybeast.com/articles/2014/12/31/how-james-woods-became-obama-s-biggest-twitter-troll.html.
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incorrect conservative voice on Twitter.”4 He has suggested publicly on Twitter that his
vocal conservative advocacy will cost him work in Hollywood.5 Plaintiff has stated publicly
that he expresses himself on Twitter to avoid mainstream media “editorializing.”6 He revels
in Twitter’s culture of insipid insult, retweeting (that is, repeating so that his Twitter
followers can see) vulgar and abusive insults directed at him.7
Plaintiff enjoys rhetorical excess and insult himself. He calls people “clown” and
“scum,” notwithstanding that he complains about Mr. Doe saying those things to him.
(Exhibits E, F to White Decl.) He makes jokes about eating a sandwich rather than saving
drowning political figures he doesn’t like (Exhibit G), and suggests that he wouldn’t mind
killing people wearing shirts with offensive and incendiary messages. (Exhibit L.) He
responds to insult with insult; when a pundit called him a “dick,” he shot back “I’m not sure,
coming from him, if ‘dick’ is a menu choice! Lol.” (Exhibit J.) He forthrightly ridicules
opinions he doesn’t like, such as Justice Anthony Kennedy’s statement “gays ask for equal
dignity in the eyes of the law.” (Exhibit K.) And, as is noted above, he has repeatedly used
the fatuous “you’re on cocaine” insult in the course of Twitter fisticuffs:
//
4 Daily Caller, James Woods: I’ll Probably Never Work In That Town Again, October 9, 2013,retrieved from http://dailycaller.com/2013/10/09/james-woods-ill-probably-never-work-in-that-town-again/#ixzz3k38zCMXD.
5 “Woods, who recently appeared in White House Down and Jobs, was replying to a tweet thatquestioned the wisdom of his outspoken declarations. "I don't expect to work again. I thinkBarack Obama is a threat to the integrity and future of the Republic. My country first." TheGuardian, James Woods Claims Hollywood Is Against Him After Anti-Obama Tweets,retrieved from http://www.theguardian.com/film/2013/oct/10/james-woods-tweets-barack-obama.
6 Twitch.com, ‘For the Record’: James Woods Explains Why He’s Giving Up on The MSM andSticking To Twitter, October 11, 2013, retrieved from http://twitchy.com/2013/10/11/for-the-record-james-woods-explains-why-hes-giving-up-on-the-msm-and-sticking-to-twitter/.
7 Twitchy.com, ‘Unending Stream of Mindless Bile’: James Woods Retweets Liberal Followers,
August 8, 2014, retrieved from http://twitchy.com/2014/08/08/unending-stream-of-mindless-bile-james-woods-retweets-liberal-followers/.
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Perhaps because he’s so consistently combative, or perhaps because he’s played the
role of drug users in his movie career, “James Woods is on cocaine” has become a Twitter
in-joke or meme. There are many examples of this joke being levied against him before Mr.
Doe made it. (Exhibits H, I, M.)
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C. Plaintiff’s Claims Against Mr. Doe
Plaintiff complains that Mr. Doe has used “childish name-calling” against him, and
has used “derogatory terms such as ‘prick,’ ‘joke,’ ‘ridiculous,’ ‘scum,’ and ‘clown-boy.’”
Complaint at ¶ 8. However, even Plaintiff does not seem to suggest those insults are
actionable. Rather, Plaintiff complains that Mr. Doe called him “cocaine addict James
Woods still sniffing and spouting.” Mr. Doe did use words to that effect. They were part of
an exchange of rhetorical hyperbole and insult consistent with Twitter culture and employing
the known “cocaine” meme or in-joke levied at Plaintiff. (Exhibit N to White Decl.) As is
set forth below, no rational person familiar with the context could take them to be a serious
factual assertion that Plaintiff uses cocaine.
Mr. Doe has informed Plaintiff that he will be filing an anti-SLAPP motion by
September 1st; Plaintiff responded by noticing this ex parte application. (White Decl. at ¶ .)
Previously Plaintiff attempted to subpoena Mr. Doe’s identity from Twitter; Twitter
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responded with objections, pointing out that Plaintiff’s subpoena was defective in multiple
respects. (Exhibits A, B to White Decl.) Twitter has indicated that, in the event this Court
permits Plaintiff to issue a new subpoena, it will object to it and potentially seek to quash it.
(Exhibit O to White Decl.).
III.
ARGUMENT
This Court should deny the ex parte application, or at a minimum set a briefing
schedule for full briefing of the request. Because Plaintiff seeks to pierce the anonymity of
an online speaker, he must make a prima facie case of defamation. He can’t, because the
expression he complains of is plainly insult and hyperbole, not a provable false statement of
fact. Therefore, Plaintiff isn’t entitled to the subpoena. Moreover, discovery will be stayed
when Mr. Doe files his anti-SLAPP motion.
A. THE FIRST AMENDMENT PROTECTS MR. DOE’S ANONYMITY
This Court should deny this ex parte application because Mr. Doe has a First
Amendment right to anonymous speech. Under well-established California law, the Court
should not allow Plaintiff to use legal process to pierce that anonymity unless he can
demonstrate he can prevail. He cannot; his case is a vexatious slap at a critic.
Both the California Constitution and the U.S. Constitution afford Mr. Doe a right to
privacy and anonymity. ( Digital Music News LLC v. Superior Court (2014) 226 Cal.Ap.4th
216, 228. That right protects anonymous speech online:
Both California courts and federal courts have recognized the value in
extending the protections afforded anonymous speech to speech made via the
*229 Internet. (See generally Reno v. American Civil Liberties Union (1997)
521 U.S. 844, 870, 117 S.Ct. 2329 [138 L.Ed.2d 874, 117 S.Ct. 2329]; Krinsky
v. Doe 6, supra, 159 Cal.App.4th 1154, 72 Cal.Rptr.3d 231.) “The use of a
pseudonymous screen name offers a safe outlet for the user to experiment with
novel ideas, express unorthodox political views, or criticize corporate or
individual behavior without fear of intimidation or reprisal. In addition, by
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concealing speakers’ identities, the online forum allows individuals of any
economic, political, or social status to be heard without suppression or other
intervention by the media or more powerful figures in the field.” (Krinsky v.
Doe 6, supra, 159 Cal.App.4th at p. 1162, 72 Cal.Rptr.3d 231.) “The ‘ability to
speak one’s mind’ on the Internet ‘without the burden of the other party
knowing all the facts about one’s identity can foster open communication and
robust debate.’ ” ( Doe v. 2TheMart.com Inc. (2001) 140 F.Supp.2d 1088,
1092.) ( Digital Music News LLC, 226 Cal.App.4th
at 228-29.)
When a litigant seeks to pierce an online speaker’s anonymity, California courts
require more than a request. They require a showing of compelling need that outweighs the
the privacy right involved. Digital Music News LLC , 226 Cal.App.4th
at 229-230. In the
context of defamation actions against anonymous internet speakers, California courts require
the plaintiff to make a prima facie case of defamation to be entitled to a subpoena to an
Internet Service Provider. (Krinsky, 159 Cal.App.4th
at 245-46.) If the Plaintiff can’t do that
– for instance, because the complained-of language is internet hyperbole, not a statement of
fact – California Courts quash such subpoenas. ( Id. at 247-48.)
Plaintiff cannot make a prima facie case because as is discussed below the
complained-of language is obvious rhetorical hyperbole, not a provable statement of fact.
Therefore the Court should not allow them to issue a subpoena.
B. Mr. Doe’s Insult Was Hyperbole, Not A Statement of Fact
Plaintiff can’t make a prima facie case of defamation because he can’t cite a false
statement of fact. Only provably false statements of fact can be defamatory; insults,
hyperbole, and “loose and figurative expressions of opinion” cannot be. (See, e.g., Paterno
v. Superior Court (2008) 163 Cal.App.4th
1342, 1356.) Mr. Doe’s “cocaine addict” tweet – a
clear reference to the Twitter in-joke about Plaintiff – cannot be taken as a statement of fact,
especially in the context of Twitter – a context that Plaintiff helped to construct.
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Case after case has recognized that speech on internet forums like Twitter is likely to
be viewed as opinion or hyperbole, not fact. That’s particularly true when the statements are
couched in bombastic language:
In Krinsky, the court found that posts on a Yahoo! Finance board that accused the
plaintiff of misconduct using terms like “mega scum bag” and “cockroach” were
not statements of fact. “A reasonable reader of this diatribe would not
comprehend the harsh language and belligerent tone as anything more than an
irrational, vituperative expression of contempt for the three officers of SFBC and
their supporters.” (159 Cal.App.4th
1175-76.) (noting that debate or criticism often
becomes “heated or caustic” on the internet).
In Summit Bank v. Rogers (2012) 206 Cal.App.4th
669 (2012), the court reviewed
numerous authorities for the proposition that “online blogs and message boards are
places where readers expect to see strongly worded opinions rather than objective
facts.” ( Id. at 696-97.) The court explained that in determining whether a
statement is taken as fact or bluster, the court must consider how someone familiar
with the context would view them: “Rogers’s statements must be viewed from the
perspective of the average reader of an Internet site such as Craigslist’s ‘Rants and
Raves,’ not the Bank or a banking expert who might view them as conveying
some special meaning.” ( Id.)
In Chaker v. Mateo (2012) 209 Cal.App.4th
1138, the court found that an ex-
lover’s rant on a review site called “Ripoff Report” was non-actionable opinion.
Because the defendant’s statements were made “on Internet Web sites which
plainly invited the sort of exaggerated and insulting criticisms of businesses and
individuals which occurred here,” the defendant’s statements that plaintiff “picks
up street walkers and homeless drug addicts and is a dead beat dad would be
interpreted by the average Internet reader as . . . insulting name calling . . . .” ( Id.
at 1149.)
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A statement is not automatically one of opinion because it is made on a forum like
Twitter. But here, there were no factors that would suggest that the @abelisted tweet was
meant to be a statement of fact instead of mere Twitter bluster. ( Bently Reserve L.P. v.
Papaliolios (2013) 218 Cal.App.4th
418, 433-34 [reviewing factors that might make internet
speech factual].) It was not labeled as a fact. The @abelisted account did not suggest any
factual basis for the insult, nor any way that @abelisted could know it. There were no
indicia that @abelisted was some sort of reliable reporter on such issues. It was not
surrounded by factual statements. It wasn’t made by a known person; rather, it was said
anonymously, which California courts recognize make it even less likely to be viewed as a
statement of fact by readers. (Krinsky, 159 Cal.App.4th
at 1162; Summit Bank , 206
Cal.App.4th
at 697.) It wasn’t professionally uttered, but was part of a series of tweets with
questionable diction, grammar, and construction. In short, every possibly factor pointed to
it being a mere insult, not a statement of fact.
Plaintiff, through his conduct and Complaint, provides the best arguments for Mr.
Doe’s insult being non-factual. Plaintiff places the tweet squarely in the context of “a
campaign of childish name-calling,” (Complaint at ¶ 8) which is exactly the sort of
expression that’s protected opinion rather than actionable fact. Moreover, by suggesting
people he disagrees with are smoking crack (Exhibits C, D), that he’d rather eat a sandwich
than save two liberal politicians from drowning (Exhibit G) , and that he’d like to kill a man
for wearing a hideously offensive 9/11 shirt (Exhibit L), Plaintiff has demonstrated that he
knows perfectly well that this sort of rhetoric is not to be taken at face value. (These are
but a few examples; there are many, many more.) He has demonstrated that this lawsuit is
petty and malicious.
Plaintiff can’t show a false statement of provable fact, so he can’t make a prima facie
case of defamation. Nor can he make a prima facie case for his second cause of action of
False Light Invasion of Privacy. First, that claim is defective when combined with a
defamation claim based on the same facts. “When an action for libel is alleged, a false-light
claim based on the same facts (as in this case) is superfluous and should be dismissed.”
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( McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961, 965.)
Moreover, if a defamation claim cannot succeed, nor can a false light claim on the same
facts. (Tamkin v. CBS Broadcasting (2011) 193 Cal.App.4th
133, 148.)
Plaintiff can’t make a prima facie case on either claim, and isn’t entitled to pierce Mr.
Doe’s anonymity.
C. Mr. Doe’s Anti-SLAPP Motion Will Stay Any Subpoena
Mr. Doe informed Plaintiff that he’d be filing an anti-SLAPP motion if this matter
could not be resolved by August 31, 2015; Plaintiff’s response was to rush to court ex parte
to try to get discovery first. That gambit should fail.
Mr. Doe’s anti-SLAPP motion, which he will file September 1, will automatically
stay all discovery. (Cal. Code Civ. Proc. § 425.16(g).) Plaintiff may make a noticed motion
for discovery to help him carry his burden of proof. ( Id.) But if Plaintiff is looking for
discovery to pierce Mr. Doe’s anonymity, that motion should fail. Section 425.16(g)
discovery may only be permitted to the extent it allows a plaintiff of carrying its burden of
showing a likelihood of prevailing on the merits. Discovery that is not directly relevant to
the legal defense Mr. Doe is asserting is not permitted. ( Blanchard v. DIRECTV, Inc.
(2004)123 Cal. App. 4th 903, 922, 2; Taheri Law Group v. Evans (2008) 160 Cal. App. 4th
482, 492–493.) Mr. Doe’s identity has nothing to do with his defense – that his tweet is
patently hyperbole and insult, not a statement of fact.
D. At The Least, The Court Should Permit Full Briefing
At the very least, the Court should permit a full briefing schedule to allow Mr. Doe to
vindicate his First Amendment rights. Mr. Doe’s counsel prepared this brief without the
benefit of seeing the application and does not know exactly what arguments or evidence
Plaitniff will bring to bear. The issues presented here are too important to be resolved ex
parte.
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