A brief recap of where we are in the EC/DA litigation.

This blog post discusses the memos in support and in opposition to the motion for a temporary restraining order.

This is an exceedingly LONG piece. I’ve actually cut stuff out of it. My goal is not to rehash the TROs, but to try and make what is happening understandable to a lay person. I am not unbiased: I admit to strong free-speech preferences. Also, I think Ellora’s Cave is not the most professional outfit on the planet. These biases may color my outlook so please take that into account.

I’m going to start with a brief description of what has happened:

Ellora’s Cave wants Jane to take down the blogpost (and maybe other things).

Jane does not want to do that.

EC’s lawyer says that the blogpost is defamatory and serves no purpose and should be removed.

Jane’s lawyer says the blogpost is substantially true, was well-researched, and is of vital important to the romance community.

Jane’s lawyer says the judge should only grant the injunction if EC posts a bond equivalent to the harm the injunction would cause DA: namely, $150K.

Here’s my take:

On the basis of the exhibits currently available to the court, someone has to be lying.

In general, I think a judge would be extremely unlikely to squelch speech at this stage when there exists evidence from multiple people stating that the blogpost is substantially truthful.

EC is missing proof of a vital part of their case–namely, that Jane acted with actual malice–and I don’t know how they will ever be able to prove it, but they seem to think that proving that Jane dislikes EC is proof that she acted with actual malice. No.

For those who want a longer explanation for what I think about this–I have a much, much longer discussion below the fold. It ranges over issues like the relative skill of the lawyers, when to be dickish, et cetera.

I said on Twitter the other night that there’s a difference between a good lawyer and a merely competent one, and that the lawyer for Ellora’s Cave (I refer to the party and the lawyer as “EC” throughout) has all the hallmarks of being competent, while Marc Randazza is a very good one.

A little bit of background is in order. When Ellora’s Cave first brought suit against Dear Author, it made a motion for a TRO. That motion, in full, stated:

Now come Plaintiffs, by and through undersigned counsel, and hereby move the Court for a Temporary Restraining Order to enjoin the Defendants from publishing false and defamatory statements about Plaintiffs and their business. The reasons in support of this Motion are detailed in the attached Memorandum. (p. 15 of this PDF)

This is a perfectly competent motion for a TRO. It is also an exceedingly sloppy motion for a TRO. (In fact, when I first read Randazza’s opposition, I thought there were some sloppy elements in construction—but when I went back and looked at things from start to finish, any sloppiness in his opposition is due to the fact that the underlying motion is fundamentally sloppy to begin with. Slop begets slop.)

What do I mean by sloppy? Well, if you’re going to enjoin someone from engaging in conduct, you should really be very, very specific about what it is that you want them to do. For instance, if you’re seeking a restraining order against a vindictive ex, you want that restraining order to say things like, “Don’t come within 50 feet of me,” and “stop calling me at work.” You don’t want to say, “stop being a bad person” even if you want them to stop being a bad person, because what does that even mean?

On its face, this is a motion for a “stop being a bad person” kind of restraining order.

Now we get to EC’s Memorandum in support of the Motion (p. 16 of this PDF). The first page of that memorandum describes the facts of the case as EC wants us to believe them: namely, that Jane published a no good, very bad, defamatory blog post, and that this has hurt EC.

EC then cites the standard of review for granting a TRO, claiming:

They have a substantial likelihood of success on the merits; They will suffer irreparable injury if the injunction is not granted; No third parties will be harmed; The public interest is served by the injunction.

The remainder of the memorandum in support is devoted to proving that EC meets these criteria. The problem is that the memo is not devoted to discussing Jane’s potential “false and defamatory statements” about Plaintiffs in general. The memo talks entirely about the single allegedly defamatory blogpost.

What this means is that even though EC is trying to enjoin Jane from ever saying anything false and defamatory about EC ever again for the rest of her life, the support they offer is in support of a motion they did not make: which would be to make Jane take down that one blog post.

Part of the problem is that the attorney for EC appears to be use the word ‘publish’ in a way that does not track typical usage. The blog post in question was published. It is not currently “being published” as anyone understands that word. The act of publication is not continuous: It was published once, it does not need to be continually republished day after day in order to persist, and so if you want it taken down, you should ask for only that. If you ask for someone to not publish things in the future, you’re actually asking to track everything they might say in the future. Is this what EC really wants?

It’s impossible to tell at this stage if they’re asking for a ridiculous thing or using language in a ridiculous way. And—more importantly—this is one of those instances which is hard to call out. As a non-party, I can say things like, “the attorney for EC appears to use the word ‘publish’ in a way that does not track typical usage.” But beating up on other attorneys for not being more than mildly competent is sometimes perceived as collegial dickishness. (One must distinguish legal dickishness—mocking a silly argument—and collegial dickishness—mocking lawyers for being shit at their jobs–and party dickishness–which is making fun of the actual parties to the lawsuit. The former is generally acceptable, the middle option is often dangerous, and the last is rarely okay unless the parties in question are engaging in seriously unethical behavior.) (Full disclosure: my tolerance for legal/collegial dickishness is sky-high in comparison with the national average for lawyers; it’s probably right around normal for party dickishness until you cross the ethical line and then I say, eat them alive.)

Now you see why I say that slop begets slop: A fundamentally sloppy motion, supported by a memorandum that appears to be in support of a different motion, means that any response has to address both those meanings without coming outright and saying, “I’m addressing two different things here because the attorney for the other side can’t use his words.”

I’m not saying anything about the sentence at the end of the memorandum in support of the motion for a TRO saying that they want the identities of all the commenters, because what is that? I don’t know. It’s not even legally significant. It’s just…there. Because.

There are other things that a good opposition to a preliminary motion will do.

It will explain the law to the judge and tell him where he can verify that the lawyers are telling the truth. It will explain the facts (and in so doing, paint a vivid picture of who/what/where/when/why). It will explain how the facts apply to law, and in doing so tell a story of the litigation at present. It will immediately sum up the litigation and give the judge a working explanation for what is going on. In some cases, it will also educate opposing counsel about things they do not appear to understand.

In this instance, there’s a sixth goal. Technically a motion for a TRO is not the same thing as a trial on the merits. You could win on the merits and lose a TRO. You could lose on the merits and win a TRO. But realistically a TRO hearing is kind of a mini-merits trial in the sense that it gives the parties an idea of whether the arguments will sink or swim. If the judge agrees with Randazza and says, “I cannot see how Ellora’s Cave has a prayer of a chance of prevailing on the merits,” that sends a certain message to opposing counsel. So another goal is to win the mini-trial, because that could influence whether the opposing party decides to continue with the lawsuit or dismiss it. Just about any case with a TRO contains a little dance to this effect: “Yes, this isn’t a real trial on the merits, but we all know that this could easily decide the case. We are going to pretend it won’t because reasons, but it usually does. So.”

Got that?

Now, finally, we get to the opposition motion. This is the first chance that Randazza has to introduce the concept of Dear Author and what it means to the romance community. He does. He explains that Dear Author “has become a respected source for news and information for the romance novel community.” (p.2) He immediately positions Jane as a reporter who investigates facts. He talks about the things she has accomplished in the community–as being someone who provides information to authors without a legal background, and who lets them know what will happen in scary situations, and simultaneously as someone who provides a springboard for discussion of those issues.

(I’m glad that this was included as background, because up until this point, there has been little discussion in the case itself of what the DA community is and does–and there’s no way a federal judge will understand that unless it’s explained up front. Like it or hate it, there is a DA community, and it provides a place where authors and readers can discuss the changing publishing industry and what that means at large. The remedy that EC asks for would have a huge effect on that community.)

(An aside: as I write this, I’m also tracking Twitter. I see that there’s occasional surprise that the tone of the brief is so conversational. That’s actually a hallmark of a good brief. Go read the briefs in SCOTUS filings and you’ll often see the same conversational tone, complete with vivid analogies. Excellent lawyers are excellent because they made good arguments and make them easy to understand. Lawyers who are merely competent think that they need to prop up their importance by making themselves sound important.)

Randazza sums up the litigation—including showing that he’s aware that EC has a motion on its face and a shadow motion that it might be trying to make instead—with this: “Ellora’s Cave is understandably concerned about any negative view of its business, but it has no right to ask this Honorable Court to use its equitable powers to suppress the truth, to suppress fair comment, and to suppress future unknown statements. The First Amendment protects [Jane’s] right to publish on matters of public concern, and her mission mandates that she share her findings with the author community. Given that her writing is a matter of public concern, about a public figure, [Jane]’s First Amendment rights are given an exalted position – one which makes sustaining a defamation claim against her in this context a virtually impossible task.” (p.2)

That right there? That’s a bite-size explanation of why Jane wins everything and EC loses completely. Not just this motion, but the whole shebang.

From here on out, it’s just a matter of convincing the judge to chew and swallow that bite-size explanation.

First, Randazza points out that EC is asking for a prior restraint. (p.3) I want to break down what this means here, because there’s a lot of legal shorthand in that page of the brief that might not be 100% clear to laypeople upon a first reading.

A “prior restraint” is a fundamental concept in First Amendment law. First Amendment law abhors the notion of saying, “You cannot speak unless you get your idea cleared with the government first.” This is because the presumption in the First Amendment is that your speech is protected until it has been proven to not have protection. A prior restraint assumes the opposite: that speech is unprotected until it’s proven to be protected. The exceptions to this rule are extremely narrow—usually national security has to be at stake—which is why there’s a comment about troop movements. (Someone LOLed about that on twitter—but that wasn’t one of Randazza’s rhetorical flourishes. It’s a reference to Near v. Minnesota, the seminal case on prior restraints, which says that prior restraints suck donkey balls and we will only consider allowing what is effectively pre-censorship to occur where national security is at stake.)

How does this apply to EC’s motion? As written, it’s a ridiculous request for an impermissibly broad prior restraint. It literally asks for a gag order—they ask Jane to never publish anything false and defamatory about Ellora’s Cave ever again. And I want to break down exactly how that would play out so you can see why this is such a ridiculous thing. If the court grants that injunction as written, and Jane violates it, she could suffer severe repercussions for contempt of court in addition to any defamation charges. But how is Jane to know that a court will find a critical statement defamatory without litigating it in the first instance? Under the proposed injunction, if she wants to avoid going to jail, her only safe course would be to go to the court and say, “I want to publish this post about the industry; is this okay?”

This changes the game, and I hope shows you why prior restraints are widely considered unconstitutional. Before, if Jane published a defamatory statement, she might get sued, and if she lost, she would have to pay damages. Under the proposed injunction, if Jane publishes a defamatory statement, she’s in contempt of court and could get thrown in jail. That’s what EC is asking for here: the right to potentially subject Jane to jail time for doing nothing but speaking, where they didn’t have that right before.

But even the motion as EC may have intended it is a (slightly less ridiculous, but still unsupportable) request for a prior restraint. It’s saying that Jane’s speech must be banned until the court determines that her speech is allowable. This is still a prior restraint: It assumes her speech is unprotected and suppressible without a full hearing on the matter, and that’s still improper.

So that’s the background you need when Randazza quotes case law that basically says, “This is a prior restraint,” and “prior restraints suck donkey balls and we will not have them.”

With that as backdrop, Randazza gets into the nitty-gritty of the matter.

First, he claims that Jane’s statements are true, and cites numerous exhibits (A, B, C, D, E, F, G) to prove the veracity of them. I’m not going into detail about the factual claims; the community has discussed the facts ad nauseum and this adds basically nothing to add that hasn’t already been said. Nothing there will come as a massive surprise to anyone who’s glanced at this before.

Randazza warns against playing the game of “everything Jane says must be the literal truth or she loses.” His point is simple: Jane’s post says that EC is in poor economic health, and they appear to be in poor economic health—and that is all that matters. Here’s one of his rhetorical flourishes: “Ellora’s Cave nit picks minor possible factual inconsistencies, as a child might try to remove peas from goulash. However, even if a child despises peas, it does not make the goulash itself poisonous. Analysis of a defamation claim like this is like reasoning with the child who complains that because there are peas in the goulash, the goulash itself is inedible.” (p. 8)

And indeed, he cites New York Times v. Sullivan for this point. For those who missed the mention of this case on Twitter or the Smart Bitches podcast, the case centered on this ad placed in the New York Times by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. The libel suit that followed nitpicked factual inaccuracies—like the fact that King had only been arrested four times rather than seven—when in reality nobody would have said, “Oh, I guess it’s okay to use the power of the government to terrorize black leaders so long as you do it no more than four times.” In other words, even if Jane is wrong about some exact fact she recited, the broad view of the picture she painted–that Ellora’s Cave is a company struggling with serious liquidity issues–is true, and there’s no need to engage in an exact parsing of language.

Randazza notes that there is an alternate view for EC’s troubled outlook. Maybe, he says, EC isn’t unable to meet its financial obligations–it’s just unwilling to do so–but for fuck’s sake, that should still make authors flee in droves. There’s a footnote about this: “Even if Ellora’s Cave were in perfect financial health, these are the symptoms of an ailing company. It is as if a perfectly healthy person were suffering from a severe headache, muscle pain, weakness, diarrhea, vomiting, and abdominal pain. A reasonable person might say, with all candor and right to do so, that the patient appears to have Ebola symptoms. Of course, the subject might counter that they were only suffering from a hangover. But, the First Amendment would permit either observation.” (p.7)

This is probably the only thing I feel truly meh about in the entire opposition. Yes, it’s a cute rhetorical flourish. But I would have chosen a different analogy. I think Ebola was used to be up and current, but given that two of the Ellora’s cavemen were potentially exposed to Ebola recently, it could be perceived as party dickishness–and in a situation where it’s not uncool to poke fun at the parties. I doubt that was Randazza’s intent–I doubt he knew about the cavemen/Ebola connection, but like I said, meh. But I doubt the court will know about that, either, and so I suspect it’s not going to matter.

Randazza then points out that EC is a limited public figure, and so under Ohio law, “the plaintiff must demonstrate, with convincing clarity, that the defendant published the defamatory statement either with actual knowledge that the statement was false, or with reckless disregard as to whether it was false.” (p. 11-12)

Here follows a jab at EC’s lawyer. This is as close to collegial dickishness as Randazza gets: “While Plaintiffs claim that the article was ‘published by Defendants with malice, hatred and ill will towards Plaintiffs,’ Plaintiffs fail to demonstrate legal actual malice.” (p. 12)

My translation: “You filed a defamation action but you think that ‘actual malice’ means ‘published in a snit’? Please read any case on libel before proceeding, because you’re embarrassing yourself.” This is appropriate collegial dickishness. When someone demonstrates that they don’t actually know what legal words mean, and they’re a lawyer, you get to point out that they don’t know what legal words mean.

The last portions of the opposition are fairly easy to untangle for a nonlegally trained audience. Basically, Randazza responds to the last elements required for a temporary restraining order.

Remember that EC has to prove that they will suffer irreparable harm if the blogpost is not taken down. (Randazza says no: first, the harm is not irreparable, and second, if EC’s reputation is in the shitter, it’s because they have not paid by their authors, not because Jane wrote the post.)

Second, Randazza says that the public has a strong interest in being able to discuss the viability of EC. Since EC holds author’s rights, and authors might need to decide what to do next, the right to have an EC death pool is of extraordinary interest to authors deciding what to do with their upcoming books.

Finally, Randazza says that in cases where an injunction is issued, the person asking for the injunction needs to post a bond: that is, in the event that they are wrong, they need to make sure they can make good the losses of the person who was hurt by the injunction. He asks for a bond of $150,000, and supports this with evidence.

(Sidenote: I conclude from this that DA’s Amazon affiliate fees are somewhere around five figures. Awesome.)

There is a LOT more than Randazza could have said. But filings to the court have page limitations for a reason, and I think the court will get the point without having it sharpened and plunged repeatedly into their brain. There are specific exhibits here that make specific claims as to the dollar amounts owed, and when those dollar amounts went missing.

One last thing about those exhibits. I wondered if I should point this out, because I wasn’t sure I wanted to give EC any ideas of litigation strategy. But this one is well and truly broadcasted—so much so that there’s no doubt in my mind that a clear signal is being sent that EC needs to wake up and realize that this lawsuit could be the final nail that breaks their coffin.

If you read Jane’s declaration (Exhibit A), she makes the following statements:

¶ 13: “Patty Marks, CEO, of Plaintiff, perjures herself repeatedly in the affidavit filed in support of the motion for temporary injunction.” ¶ 31: “The Plaintiff knowingly and repeatedly made these false assertions about the affiant’s statements in order to abuse the judicial process and use the process in order to intimidate the affiant and any other critic into silence.” ¶ 56: “To date, between October 1, 2014, the date of the filing of the state court petition and the declaration on October 21, 2014, the undiscounted attorney’s fees incurred are approximately $30,000.”

These are not idle claims. It’s obvious to me, and I hope it should be obvious to counsel for Ellora’s Cave, what saber is being rattled here. The claims here track F.R.C.P. Rule 11(2)(b)(1) and (3): namely, the requirement that motions/pleadings filed with the court must not be filed to harass, and must have an evidentiary basis. A Rule 11 violation is one of the only ways that a party can recover attorney fees—and Jane is saying that if EC doesn’t stop harassing her, they are potentially out $30K and running. Jane’s laying the groundwork for a motion to sanction EC and letting them know what kind of damages she’s talking about.

I doubt Jane wants this to be a massive secret or she wouldn’t have put some of that stuff in this declaration. If I were Ellora’s Cave, I don’t know how I would feel about continuing on with this case. Of course, I am not Ellora’s Cave. And if I were Ellora’s Cave, none of us would be here now and I would have spent this morning writing something other than this.

That’s as good a place as any to abruptly end this absurdly long blog post.