Note: our entire series of posts about the Oatmeal v. Funnyjunk situation is now complied under the Oatmeal v. Funnyjunk tag.

Background: our previous coverage of the epic and (epically ridiculous) battle between FunnyJunk attorney Charles Carreon and The Oatmeal can be found here: Part I, Part II, Part III, and Part IV.

A few days ago I discussed a report — which proved true — that FunnyJunk's attorney Charles Carreon had sued Matthew Inman of The Oatmeal, IndieGoGo, and two charities in a fit of what can only be described as unbalanced, from-Hell's-heart-I-stab-at-thee pique.

Today, as promised, I'm going to talk a bit about the merits of — no, the substance of — you know, scratch that. I'm going to talk about the butthurt that Charles Carreon angrily crayoned down and chucked at a federal judge.

I. Preliminaries

Mr. Carreon's complaint is now hosted many places, including (in redacted form, without large exhibits) here. The entire thing, with exhibits, is now available on PACER as well.

I'm not going to explain all of the problems with it. First, that would be a monstrously long post. Second, I'm not going to do anything that might help Charles Carreon, whose behavior in this matter is contemptible. So: you'll have to wait for motion practice to see the defendants' approach to issues of jurisdiction, standing, California's anti-SLAPP statute, and a full treatment of Mr. Carreon's eccentric view of California charitable law. I have no doubt that Venkat Balasubramani will do a spectacular job for Matthew Inman, with whatever assistance he and Mr. Inman decide to accept. (Thanks, by the way, to the attorneys, paralegals, law students, and other professionals who have offered pro bono help. Stand by. You never know who might need it.)

So: the complaint. Let's begin by quoting an applicable Federal Rule of Civil Procedure looming over it, and over Mr. Carreon: Rule 11.

b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery;

. . . .[emphasis added]

Violations of Rule 11 may lead to monetary sanctions by the court.

On to the complaint itself.

II. Causes of Action and Prayers For Relief

As the Courthouse News Service report correctly suggested, Carreon's complaint names Matthew Inman (proprietor of The Oatmeal), IndieGoGo Inc. (the web site that hosted the fundraiser), the American Cancer Society, the National Wildlife Federation, and a number of "Does," or as-of-yet-unidentified defendants to be named later. After Mr. Carreon's summary of what he believes the facts and the law to be, there are three causes of action — that is, three claims based on which Mr. Carreon believes he is entitled to relief.

The first cause of action seeks to impose a constructive trust upon the proceeds of Inman's BearLove charity. To over-simplify, trust is a legal structure that puts restrictions on the use of an asset and imposes obligations on its manager, the trustee; a constructive trust is a remedy that a court can impose by ordering that an asset be treated as if it were in a trust, with its use restricted and supervised. Mr. Carreon asserts that the court must impose a constructive trust because Mr. Inman and IndieGogo have violated California charity law. Of course, under California law, a constructive trust is a remedy, not a cause of action— it's what you get if you prove a violation you have standing to complain about, not the violation itself.

The second cause of action asserts a trademark violation under the Lanham Act, 15 U.S.C. 1125, against Mr. Inman and one of the Does. Mr. Carreon asserts that (as, if you thought about it, you would expect) he trademarked his name, that somebody started a fake Twitter account in the name @charles_carreon, and that this hurt him. Mr. Carreon thinks that this person was incited by Mr. Inman, or "on information and belief" was Mr. Inman himself. "On information and belief" is lawyer-speak for "I have no evidence whatsoever, but I kind of like to imagine that it's true, and who knows what I'll find in discovery." Mr. Carreon goes on to complain that the fake @charles_carreon tweets were "abrasive and provoking" and "engendered negative responses" to him, which is upsetting because he "makes it a habit to engage in tempered speech even on matters of heated debate." Yes, it's totally true, as anyone who has read about this story or met Charles Carreon could attest: interacting with him is clearly a memorable joy, akin to being farted upon by a unicorn, and his actions normally inspire only adulation and the occasional rapturous fainting incident.

The third cause of action is against Inman and the Does again, this time for the awkwardly named "Inciting and Committing Cybervandalism In The Nature of Trespass To Chattels, False Personation, and Identity Theft," which believe it or not you will not find in the California Civil Code. Here Mr. Carreon asserts that Inman incited others to hack Mr. Carreon's website (which he immediately detected and stopped) or use his email address to sign him up for websites and goods and services he did not want. Mr. Carreon asserts once again "on information and belief" (or, as I prefer to say, "ass-damply") that Mr. Inman perhaps did these things himself.

Finally, we have the "prayer for relief," where Mr. Carreon says what he wants out of all of this. He wants (a) an order imposing a trust over the BearLove proceeds, (2) an order barring Doe No. 1 or Inman from using his name "in any manner," (3) an order requiring IndieGoGo to comply with certain California charity laws Mr. Carreon thinks ought to apply to them, (4) a order requiring the National Wildlife Foundation and the American Cancer society to do things Mr. Carreon thinks they are supposed to be doing, (5) damages, (6) disgorgement by Mr. Inman and IndieGoGo of "ill-gotten profits," (7) triple damages, (8) attorney fees, (9) an order requiring the defendants to report to the court about how they are complying with what Mr. Carreon wants them to do, (10) punitive damages, and (11) a formal judicial declaration of most wanton and hurtful trespass unto fee-fees. I may have made one of those up.

Having reaped the whirlwind of scorn for suing the charities, Mr. Carreon will no doubt protest that he didn't sue them for money, he just asked that they comply with the law. In fact, it's going to be difficult and expensive for the charities to respond at all. Even though Mr. Carreon named the charities as defendants in the caption, he doesn't name them as defendants in any of the three causes of action, and yet he asks the court to issue orders directing them to do things, and his demands for damages and attorney fees doesn't make it clear whom he thinks should be paying him. Also, in paragraph six identifying the parties and the court's jurisdiction over them, Mr. Carreon only says "The Charitable Organization Defendants are . . ." before trailing off awkwardly without conclusion, like a former friend or family member mulling how to create a diversion rather than answer the question "how can you tolerate being associated with this vexatious twatwaffle?" This means that the charities will have to pay lawyers to research how to put into fancy federal-court language the basic message "attention entitled dipshit: what exactly are you suing us for?"

In addition, there are patent defects, provably false statements, and rank hypocrisies in the complaint. Let's mention just a few:

III. Legal, Factual, And Moral Bogosities

Sweet Charity: Mr. Carreon's theory of how California charity law governs the defendants is wholly harebrained. As but one example: Mr. Carreon asserts that California Government Code section 12599 controls The Oatmeal, even though that statute by its own terms applies to "any individual, corporation, unincorporated association, or other

legal entity who for compensation" engages in fundraising in California — professional telemarketers and fundraisers, in other words. In a similarly wrong-headed or deliberately deceptive vein, Mr. Carreon claims that Government Code section 12599.6(b) requires charities like the ones he has sued here to "exercise and establish control" over "all fundraising activities conducted by others for their benefit." Except that's not what Government Code section 12599.6 says at all. It says "A charitable organization must establish and exercise control over its fundraising activities conducted for its benefit, including

approval of all written contracts and agreements . . . ." Mr. Carreon made up the part requiring charities to police fundraising they don't control themselves or contract out. That's why if your kids sell lemonade in order to donate the proceeds to save the pandas, the World Wildlife Fund doesn't have to come and proofread their signs and make sure that they aren't misstating the ingredients of the snickerdoodles or coercing the Jenkins kid up the block to buy seconds.

True Versus Truthy: Mr. Carreon makes a number of factual assertions that appear to play rather fast and loose with the requirements of Rule 11, cited above. Take, for example, his claim in paragraph 37 that "Mr. Inman's stated intention is to turn over only $20,000 of the amount raised by the Bear Love campaign" to the charities. Mr. Carreon's own exhibits show that he is lying. Mr. Inman said that he was trying to raise $20,000 (at the time of this writing he has exceeded ten times that) and that he would donate half to one charity and half to the other. Later, when results far exceeded expectations, Mr. Inman posted an update, saying "a lot of people have been asking what I plan to do with the extra money we raised over the initial $20,000. 100% of it is going to charity. I’m going to add 2 more charities to the list, in addition to the ACS and the NWF." Mr. Carreon also implies falsely in paragraph 30 — as he has stated falsely to the media — that the bear-loving mother Mr. Inman drew was meant to be Mr. Carreon's mom, when in fact the post makes it perfectly clear that the statement is directed a FunnyJunk, a web site that does not actually have a mother (unless, perhaps, its mother is AOL).

Take also Mr. Carreon's dark speculation that some sort of skullduggery must be at work for anyone to find the email he uses because he has not posted it anywhere on the internet "except where required by law or internet regulations [sic]." In fact, aside from PACER and WHOIS entries (which Mr. Carreon conceded) he also made the email address available in his California State Bar profile, his Oregon State Bar profile, as the contact email for his "RagingBlog" blog captioned "Charles Carreon" (since deleted, hours after someone pointed it out in comments on this site), repeated all over his www.american-buddha.com site (where he's fond of posting his own emails to people), and in his own 2009 press release. In short, Charles Carreon's email address was easily accessible to anyone reasonably good at using Google. I don't find Google sinister. Perhaps Mr. Carreon does, particularly after this whole episode.

You Can't Say That! Mr. Carreon claims that Mr. Inman "incited" others to create a false Twitter account using his name, and to commit "Cybervandalism." Yet despite his ability to quote Mr. Inman in great detail in an embarrassingly pearl-clutching quasi-Victorian effort to cause horror and disgust at Mr. Inman's comedic style, Mr. Carreon does not cite a single thing that Mr. Inman said that sounds like incitement. Not a "go email him," not a "don't put up with this guy," not a "let's show him," not a single word encouraging any action other than donations. This is in sharp contrast to Mr. Carreon's client, FunnyJunk, which accused Mr. Inman of wanting to shut FunnyJunk down and urged its users to "Contact Oatmeal anyway [sic] you can." It also contrasts with Mr. Carreon himself, who became incensed when Mattel's trademark attorney would not respond to his emails about a porn doll that Mr. Carreon thought infringed a Mattel property, and urged his readers to contact the hapless attorney. (Both FunnyJunk and Carreon, in those examples, provided contact information for their targets — Inman redacted Carreon's contact information from the letter he published and linked his Wikipedia page rather than his web site.) But those examples, no doubt, are just different.

The implications of Mr. Carreon's argument – which will be demolished by apt First Amendment case citations in due course — are frightening. Mr. Carreon cannot cite a single thing Mr. Inman said to incite or encourage anyone to take any illegal action against Mr. Carreon. Instead, Mr. Carreon's argument seems to be that Mr. Inman committed actionable incitement not by calling for action, but merely by criticizing, ridiculing, and reviling Mr. Carreon. No First Amendment cases support such a proposition. The implications of Mr. Carreon's argument reveal its fatuity. Mr. Carreon's argument necessarily means that the more popular or listened-to a speaker is, the less they can say, for fear that an audience will be "incited" to do something illegal against whomever they are criticizing. Mr. Carreon's argument necessarily means that the more contemptible a person's behavior is, the less that others can criticize it, for fear of "incitement." It's a deeply unprincipled position, because the category of "critical speech that might cause someone to do something wrong" infinitely malleable and can be used to attack almost any criticism one doesn't like. Mr. Carreon has not articulated, will not articulate, and cannot articulate the line between permissible criticism and his open-ended definition of "incitement." It's an un-American and pro-totalitarian position, because it effectively asserts that the government should have a license to censor speech based upon the naked assertion that someone might react to it the wrong way — a proposition that American courts have spent a half-century refuting. In a man who has quite literally wrapped himself in the flag and attempted to portray himself as a defender of the First Amendment, it is a sign of weakness of character.

Free Speech For Me, But Not For Thee: In this lawsuit and his public statements about it Mr. Carreon wears the guise of Innocence Abused, but he does so quite awkwardly and unconvincingly. He portrays himself as shocked and appalled at the crassness of some of The Oatmeal's cartoons, and has pretensions to "tempered speech," but quite frankly he's full of shit. Before he became Easily Offended Aunt Agnes for purposes of this lawsuit, Carreon threw elbows. As I pointed out in Part IV, the site that Mr. and Mrs. Carreon apparently operate — to which Mr. Carreon contributes — has satirical photoshops of politicians he doesn't like having sex, or topless on a photoshopped can of "Tits and Rice." But his satire does not extend only to politicians. The site also hosts a photoshop of a newspaper columnist altered so that it appears she is masturbating two men simultaneously. Apparently Mr. and Mrs. Carreon didn't like her columns.

Some time ago, Mr. Carreon lived in Ashland, Oregon, and the site was hosted on a network owned by the City of Ashland. When the columnist depicted in the two-dicks-at-once photoshop complained that the picture was pornographic and a copyright violation, the City of Ashland pulled the plug on the site. (That's what you get when you let the government host your content.) Carreon sued the city for First Amendment violations, representing the site. He lost in United States District Court and again on Appeal based on the city's limited liability — the courts found that he failed to demonstrate that the site takedown was the result of a city policy or lack of appropriate training. For what it's worth, city liability aside, I think the photoshop was clearly neither a copyright violation nor legally obscene in a manner permitting government censorship. But the point is that here, defending the right of the site he and his wife wrote for to post pornographic images of newspaper columnists who wrote things they disagreed with, Mr. Carreon waxed rhapsodic about free speech:

"Internet censorship is just the latest outbreak of a disease that government always suffers from — wanting to control what people can say," says Carreon, "We are shining a light on a problem that no one in Ashland knew about — the existence of a censor inside of the City who could, and did, turn off websites for totally improper reasons. In the case of American Buddha, it was a complaint from conservative columnist Kathleen Parker, who was the subject of a risque cartoon [sic] that was posted on the American Buddha website http://www.american-buddha.com, In other cases, we don't know what the reasons were, but the websites were turned off." . . . Asked why the case was important enough to justify an appeal to the Ninth Circuit, a project that can easily cost a client a healthy five-figure sum, Carreon explained: "The issue is one of first-impression, because whether a municipal Internet system subjects a city to First Amendment restrictions is, strictly speaking, a new one. On the other hand, it's just a replay of the old Jehovah's WItness cases, where an unpopular religion found its message blocked by restrictions on the use of loudspeakers and pamphleteering. American Buddha is a digital pamphleteer, entitled to the same protections as the works of the Founding Fathers, who wrote 'The Federalist Papers' pseudonymously, and circulated them secretly to avoid Royal prosecution. The Revolutionary War was in large part, a war against censorship. And it's not over."

Compare that position to the one he assumes here, asserting that Matthew Inman's impudent BearLove image is so horrific that charities ought to be court-ordered to make him stop using it to raise money for them. Compare his words about anonymity to his desire to find the person who made an obviously satirical Twitter account mocking him. Compare his stirring rhetoric, which invoked the Founders and the Revolutionary War and past victims of censorship, with his current rhetoric, which invites comparison to the Comics Code Authority and Thomas Bowdler and Judge Louis A. Goodman. Compare who he has claimed to be, and who he wishes he were, to who he has become as a result of his petulance and ego. Compare, and shake your head.

Note: Many of the observations in this post come from people who offered comments on our prior chapters, including but not limited to Nicholas Weaver, W Ross, joe, Ann Branson, Keith R, MJ, and Jack. They have my thanks. I suspect that the longer Charles Carreon continues to dig, the more illuminating things readers will find in his past writings and actions. That is as it ought to be.

First Edit: ArsTechnica refers to this as a "devastaing nuclear attack." If you've followed Carreon, you know that means it's not my fault, but Walt Disney's.

Second Edit: In the "abject and unapologetic hypocrisy" category, this page on the American Buddha web site shouldn't be missed. Headed "MEMO TO ANN COULTER — YOU'LL GET YOURS, BITCH!", it includes writing attributed to Charles Carreon, including this:

Since Medusa wasn't human, it was perfectly okay for Perseus to smite her head from her shoulders. Since Coulter has abandoned her humanity for money, influence, and the adulation of fools, it is perfectly okay to use whatever means are necessary to bring an end to her reign of terror, including publishing her decapitated visage, snake ringlets and all. It doesn’t matter whether you’re left wing, right wing, libertarian or anarchist, don’t let this reactionary Medusa turn you to stone — stalk her carefully, using your mirror-shield to avoid looking directly into her eyes — and when you are close enough, one clean slice directly above the shoulders will do the trick.

Again, compare that to Charles Carreon's hand-wringing about incitement and tone and content. Hat tip: commenters Jonathan and Grifter.

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