lundi 13 avril 2015

Toronto Star, journalist defend homophobe Douglas Handshoe's libel lawsuit; hire top legal talent

Shortly after having homophobic blogger Douglas Handshoe's libel suit removed to federal district court, the Toronto Star and its investigative journalist Peter Edwards have hired a highly experienced lawyer who clerked at the U.S. Supreme Court and has won important victories in Mississippi libel cases. Luther Munford of Butler Snow is the third attorney working the case. Today, the defendants filed their defense, which includes challenging the personal jurisidction of Mississippi courts over the Canadians, and also claims as "substantially true" the report of Handshoe's homophobia.

In the article at issue in the lawsuit, The Star was reporting on a  legal victory by a gay couple in Nova Scotia over Handshoe in that province's Supreme Court. Tellingly, the legal award to Charles Leary and Vaughn Perret included damages for defamation, including a context of blatantly homophobic rhetoric published by Handshoe on his blog "Slabbed."

Handshoe filed his latest lawsuit in county circuit court this past February alleging that an article that referred to him as homophobic was defamatory. At about the same time, he also sued the Halifax Chronicle-Herald newspaper with similar allegations. Both newspapers have said Handshoe did not serve them properly, and both filed a variety of other defenses. The Star's defense is succinct compared with that of the Chronicle-Herald, but the legal talent hired by both newspapers indicates they take this legal challenge from Handshoe very seriously. Handshoe is self-represented.

Both newspapers claim Handshoe is a "vortex public figure," which means he interjected himself into public controversies. In U.S. defamation law, this places a much higher burden of proof upon libel plaintiff Handshoe.

The Chronicle-Herald hired the law firm Daniel Coker Horton & Bell, and filed a detailed defense that directly contests head-on Handshoe's allegtions, intentions, and motivations. Lead attorney Jackson Ables, III, has litigated "print media and motion picture defamations," according to the firm's web site. "His defense of a libel action over Orion’s 'Mississippi Burning' led to the reopening of the investigation of the 1963 murder of Medgar Evers and to the conviction of Evers' murderer in 1994," states the Ables online biography. Legal observers have said that Ables is particularly well suited to fight this legal conflict, where Handshoe's homophobia is pitted against Canadain values of civil rights, freedom of expression, and equality.

The Toronto Star's libel specialist Luther Munford attended University of Virginia law school, as well as Oxford and Princeton Univerisites. He has helped his clients prevail against libel claims on summary judgment motions in at least two two major Mississippi case: McDonald v. Raycom TV Broadcasting, Inc. and Blake v. Gannett.

Ironically for "investigative blogger" and Catholic school St. Stanislaus alumnus Douglas Handshoe, both newspapers cite freedom of speech and the First Amendment to the U.S. Constitution. Handshoe, who as a defendant in defamation lawsuits filed by Leary & Perret, used the strictures of Mississippi libel law to his advantage, will now have the burden placed on him of proving that he is not homophobic. Proving the falsity of an alleged defamatory statement is a burden placed on the plaintiff under Mississippi law.

Given that three justices of the Nova Scotia Supreme Court, three circuit judges of the U.S. Court of Appeal for the Fifth Circuit, and the Chief Judge of a U.S. district court have found Handshoe's publications to be homophobic, this looks like more than an uphill battle.

Both newspapers, however, appear prepared for war.






mardi 31 mars 2015

Halifax Chronicle-Herald newspaper defends, removes legal-clown Handshoe's "homophobic" libel lawsuit to federal court of Judge Guirola

 Citing eighty defenses in a 29-page document, the Halifax (Nova Scotia) Chronicle-Herald newspaper has defended a defamation lawsuit filed by inveterate homophobic blogger Douglas Kyle Handshoe. Attorneys for the newspaper also removed the lawsuit to the U.S. District Court for the Southern District of Mississippi, where Chief Judge Louis Guirola will preside over the case.

Handshoe sued the newspaper in mid February, 2015, alleging that the province's largest daily libelled him by referring to him as homophobic. The suit was filed in Hanock County Circuit Court, Mississippi. At the same time, Handshoe also filed suit on similar grounds against the Toronto Star and its reporter Peter Edwards, as reported here.

Chief Judge Louis Guirola also presided over a case involving Handshoe of first impression for the federal legisltation known as the SPEECH Act, in which Handshoe prevailed over Trout Point Lodge, Charles Leary, and Vaughn Perret. The unfair nature and pitfalls of the SPEECH Act as applied in the Trout Point case were recently the topic of a major law review article that analyzed what happened when Trout Point appealed Judge Guirola's decision to the U.S. Court of Appeal.

In its defense, The Chronicle-Herald noted the variety of homophobic epithets published by Handshoe, as found by the Nova Scotia Supreme Court in 2012 and 2014 decisons awarding $817,000 in damages and costs. The document filed by acclaimed libel attorney Jackson Ables, III, refers to the "general and a specific, anti-homosexual animus on the part of Plaintiff," citing statements made to the federal district court about Perret & Leary when Handshoe once sued Randall Cajun of this blog.  The defense also refers to findings by Judge Guirola, repeated by the Court of Appeal, that Handshoe's publications about Perret & Leary were "homophobic." The newspaper also bases part of its defense on the First Amendment to the U.S. Constitution.

Attorney Ables also asserted: 
 FIFTY-FIRST DEFENSE
Plaintiff must prove that he is not possessed in fact of and that he does not express an irrational fear of, aversion to, or is not inclined to discrimination against homosexuality or homosexuals, and that The Chronicle Herald has actually published in this district and division a false statement of purported fact about him that explicitly said that he is and Plaintiff must prove that that statement about him was not substantially true but was actually false and wherein so.
FIFTY-SECOND DEFENSE
If the Plaintiff is a homophobe, then any actual fear or aversion which the Plaintiff himself may have had or still has towards homosexuality and/or alleged homosexuals has been, by definition, irrational and, thus, is not legally sanctionable by this Court, and the Plaintiff may not seek “damages” from The Chronicle Herald for his harboring any such irrational fear. However, any pretense by which the Plaintiff may have feigned (or encouraged any conclusion) that he is homophobic, if done for commercial reasons, would be sham and false and thus could not be actionable, in any context.
No only is the newspaper defending, it is also seeking monetary sanctions against Handshoe:
For the reasons explicitly set forth in this pleading, The Chronicle Herald avers that this action was filed pro se and filed in violation of Fed. R. Civ. P. 11 and that it is also violative of the Mississippi Litigation Accountability Act. Moreover, the filing and the maintenance of this civil action was intended to vex the Defendant and Plaintiff’s actions since the filing of it likely will unlawfully multiply these proceedings.
The Halifax daily also made the intriguing assertion: "The defendant avers, upon information and belief, that the plaintiff may have received, or accepted, or agreed to accept or receive things of value or other assistance whatever the form thereof, as an inducement to commence or to prosecute this civil action."

Mr. Handshoe has seemingly set himself up for a major court battle, and discovery of his modus operandi. What will the Toronto Star, an even larger and financially mightier newspaper do next in its response to legal clown Douglas Handshoe?

He seems to make enemies everywhere he goes. . . . perhaps he'll prove to be his own worst enemy.

The Chronicle-Herald defense to Douglas Handshoe's claims: How to write a libel defense in Mississippi

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DOUGLAS HANDSHOE PLAINTIFF
VS. CIVIL ACTION NO. 1:15-cv-106-LG-RHW
THE HALIFAX HERALD LIMITED AND JOHN DOE DEFENDANT
ANSWER AND DEFENSES



(any and all formatting errors are the result of pasting text--apologies)

Reserving first hereby, and not waiving, each and every defense, objection and matter in avoidance presently applicable, or which may arise hereafter, comes now The Halifax Herald Limited (hereinafter “The Chronicle Herald”), by counsel, and, in response to the allegations of the Complaint, or to so many thereof as the Defendant is obliged to response, would very respectfully show unto this Honorable Court the following:
FIRST DEFENSE
The Complaint fails to state any claim against The Chronicle Herald upon which relief can be granted.
SECOND DEFENSE
The Plaintiff has not complied with the process requirements of the treaty law extant between
the Commonwealth of Canada and the United States of America, more particularly The Convention
on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
The process which Plaintiff attempted was not authorized and was invalid.
THIRD DEFENSE
The process required by The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters was not served in compliance therewith, and service
was, therefor, not authorized and thus was invalid.
FOURTH DEFENSE
The Plaintiff also has not complied with the substantive or the procedural requirements of
Mississippi Code Section 13-3-57. The process which Plaintiff attempted was not authorized and
is invalid.
FIFTH DEFENSE
That process contemplated by Mississippi Code Section 13-3-57, when and if authorized,
must be served in compliance therewith. The Plaintiff’s attempted service of process did not comply
with the substantive and/or the procedural requirements of Mississippi Code Section 13-3-57.
SIXTH DEFENSE
The Plaintiff may have failed to join a necessary party.
SEVENTH DEFENSE
Plaintiff has not pleaded any facts sufficient to authorize bringing a civil action in this District or Division; venue is improper.
EIGHTH DEFENSE
The “claim” asserted is barred by Miss. Code Section 15-1-35.
NINTH DEFENSE
Plaintiff lacks standing to assert the claim he has asserted against The Chronicle Herald.
TENTH DEFENSE
The Chronicle Herald owed the Plaintiff no such “duty” as Plaintiff has concluded exists or
attempted to allege.
ELEVENTH DEFENSE
The Chronicle Herald has not breached any actual duty at law respecting any matter of which
the Plaintiff complains.
TWELFTH DEFENSE
Plaintiff has not specifically alleged wherein any words used concerning the Plaintiff himself
was factually false.
THIRTEENTH DEFENSE
Plaintiff asserts, in conclusory fashion, that the blog he calls “Slabbed New Media, LLC”
(hereinafter the blog “Slabbed”), a non-party, published or reported in this District and Division
matter which is not specifically described in the Complaint. Plaintiff further alleges, and in like
fashion, that certain of that specifically undescribed, but allegedly reported matter (which was
allegedly published on a date or dates likewise not specified in the Complaint) was “categorized”
thereafter by The Chronicle Herald. And Plaintiff further asserts, in like manner, that the category
into which the blog’s reporting was placed by The Chronicle Herald was what plaintiff contends was
“homophobia,” but all without specifying the particular form or forms of “homophobia” to which
Plaintiff is referring, and without even generally describing to what unspecified, undated reporting
by Slabbed he is alluding. Plaintiff’s conclusions and any “allegations” intermingled therewith are
not actionable as libels stated of the Plaintiff himself by The Chronicle Herald.
FOURTEENTH DEFENSE
The Plaintiff avers or implies that The Chronicle Herald, as a Canadian newspaper, owed to
the Plaintiff himself a legal duty to conduct one or more independent, conclusive investigations into
the alleged merits of each of five separate, but unnamed, civil actions allegedly filed by others
against the Plaintiff himself and, apparently, his defenses thereto, these civil actions filed somewhere
(not alleged) on unspecified dates, in unspecified courts in the Commonwealth of Canada or in the
State of Louisiana. However, the Plaintiff does not allege: any specific allegation anyone made
about him personally in any one or more of those five “suits,” or that any specific allegations were
made against him personally in any of those “suits,” or that any such unspecified allegations (if made
against him in any of those five “suits”) was factually false or wherein it was false, or that The
Chronicle Herald itself had originally made any of those unspecified allegations or had itself filed
any of those five “suits.” Plaintiff’s conclusions and any “allegations” intermingled therewith are
not actionable as libels stated of the Plaintiff himself by The Chronicle Herald.
FIFTEENTH DEFENSE
The Plaintiff avers, in conclusory fashion, that the five unidentified suits filed against him
personally were filed not by The Chronicle Herald but, by individual persons who obviously are not
named parties to the instant civil action, and that those several suits by others, allegedly brought
against him personally, were “designed to harass and defame Plaintiff.” Even if that were true, the
Plaintiff does not aver, not even in a conclusory manner, that The Chronicle Herald designed to
harass or defame the Plaintiff himself thereby; nor does he allege that the Defendant filed any of
those five “suits” against him. Plaintiff’s conclusions and any “allegations” intermingled therewith
are not actionable as libels spoken of the Plaintiff himself by The Chronicle Herald.
SIXTEENTH DEFENSE
Those individual persons, to whom the Complaint alludes as having brought “five” suits
against him, had individual duties to determine the existence of good faith bases in fact and in law
allegedly underlying any civil actions they actually brought against the Plaintiff himself in the courts
of the United States and to do so before they filed those suits. The Chronicle Herald, however, was
under no such duty as bound Plaintiff’s adversary litigants. And The Chronicle Herald owed no
such or any other “duty” to the Plaintiff himself to preinvestigate (before reporting thereon) the
ultimate merits of any suits those persons brought against the Plaintiff in the courts of the United
States concerning any unspecified (in his complaint) allegations any of those individuals actually
made or implied therein against the Plaintiff himself. Moreover, these unnamed persons’ allegations
against the Plaintiff himself, if any, were themselves protected by the litigation privilege so that no
defamation claims could be brought against those persons by the Plaintiff, unless their litigation
privilege was overcome by Plaintiff in respect of each of those five “suits.” Moreover, The
Chronicle Herald’s own reporting on those privileged proceedings was and is separately privileged.
The Chronicle Herald was privileged to report upon activities occurring in proceedings covered by
a separate litigation privilege.
SEVENTEENTH DEFENSE
Those individual persons to whom the Complaint alludes as having brought “five” suits
against him, had individual duties to determine whether there were proper bases in fact and in law
underlying other suits, if any, brought against the Plaintiff himself in the courts of the
Commonwealth of Canada. The Chronicle Herald, however, as a newspaper reporting current
events, had no such investigatory “duty” to the Plaintiff himself as to any suits brought by others
against the Plaintiff elsewhere or as to any unspecified allegations any of those individuals made
therein and elsewhere against the Plaintiff here. The Chronicle Herald was privileged to report on
contemporaneous news.
EIGHTEENTH DEFENSE
Whether or not the judgment predicated thereupon was enforced in Canada or was
enforceable elsewhere after its rendition, the Supreme Court of Nova Scotia nevertheless made a
finding of fact in its Decision dated February 14, 2014, in Trout Point Lodge, et al. Handshoe, which
recited in material part the following:
[6] The present and former actions are . . . a response to Mr.
Handshoe’s defamatory actions conducted through the Internet
[i.e. by “blogging”]. Justice Hood summarized Mr. Handshoe’s
activities:
. . . .
[7] . . . The [defamatory] statements contained anti-gay rhetoric
and homophobic content.
. . . .
[10] • Mr. Handshoe has continued to repeatedly publish
words referring to the personal [i.e., individual] [male]
plaintiffs as “[redacted],” “[redacted],” “[redacted],”
“[redacted],” “[redacted],” and “[redacted].”
• Mr. Handshoe republished the following: “I’ll add
here, in case it is not self-evident, that I built dossiers on all
the players in the social group and I intend through time to
roll out each and every one in excruciating detail. . . . The
reason for this is that this band of gay men act as a unit that
will also scatter like [redacted] when the heat is applied.”
• . . . Handshoe referred to . . . the Plaintiffs as “the
[redacted].”
Id. (Emphasis added.) It is incontrovertible that such a finding was made in the courts of the
Commonwealth of Canada and that the Decision was legally issued and the Court’s act legally done
under the laws of the Commonwealth of Canada. The Supreme Court of Nova Scotia found the
Plaintiff had made homophobic or anti homosexual utterances in the words quoted hereinabove.
The findings of fact within this Decision by the Supreme Court of Nova Scotia and published
there by that court, standing alone, were an ample factual basis for any opinion contemporarily
published in Canada to the effect that Plaintiff had so comported himself and/or so operated his
business as to cause reasonable inferences that he was and had been (a) a blogger, and (b) an “anti
homosexual blogger,” (emphasis added) which, if a mere opinion, and/or if factual or substantially
true, cannot be a libel actionable by the Plaintiff. Moreover, The Chronicle Herald is privileged to
publish contemporaneous reports on court proceedings. Fair comment on these court proceedings
in which there is a public interest is not actionable.
NINETEENTH DEFENSE
Heretofore, the Plaintiff wrote to a sitting judge of this District Court that certain named
individuals (persons whom Plaintiff had earlier characterized as homosexuals) were “anonymous
[redacted]” (Civil Action no. 1:13-cv-00254-HSO-RHN, ECF No. 10, P. 2), indicating his personal
animus against persons whom he also claimed were homosexuals. Such statements on the public
record of this District Court bespeak both a general and a specific, anti-homosexual animus on the
part of Plaintiff.
TWENTIETH DEFENSE
This civil action was facetiously brought; Plaintiff himself appears to court the public to
conclude that he is, inter alia, an “anti homosexual blogger,” not a pro homosexual blogger,
wherefor no public opinion formed consistent with his designs or posturing to that effect can
plausibly constitute his sustaining a cognizable “injury” or “loss” proximately caused by any true or
substantially true utterance to that same effect.
TWENTY-FIRST DEFENSE
The phrase “anti homosexual blogger” is not a statement constituting defamation per se under
settled Mississippi law.
TWENTY-SECOND DEFENSE
The phrase “anti homosexual blogger” is not defamatory whether in the abstract or as applied
to the Plaintiff himself whether in an opinion or in any factual statement which is true or
substantially true.
TWENTY-THIRD DEFENSE
The words complained of and attributed to the defendant are protected by Freedom of the
Press as guaranteed by the First Amendment to the Constitution of the United States.
TWENTY-FOURTH DEFENSE
The words complained of and attributed to the defendant are protected by Freedom of Speech
as guaranteed by the First Amendment to the Constitution of the United States.
TWENTY-FIFTH DEFENSE
Any statement actually written by The Chronicle Herald about the Plaintiff himself and
concerning which Plaintiff has not specified wherein it was factually false as concerning him is not
actionable as a “libel.”
TWENTY-SIXTH DEFENSE
Any factual statement actually written by The Chronicle Herald about the Plaintiff himself
which is substantially true is not actionable.
TWENTY-SEVENTH DEFENSE
Plaintiff has not averred any statement allegedly written about himself by The Chronicle
Herald that was of a nature that the Plaintiff himself has regarded as arising to the level of a nonactionable
“insult” and therefore such clearly could not constitute any actionable “libel,” a greater
offense that offering an insult.
TWENTY-EIGHTH DEFENSE
Plaintiff’s mere conclusory averments that unspecified false statements were written about
him personally, or that even specified statements allegedly written concerning him personally were
“false,” does not suffice to show Plaintiff himself was libeled without his explicitly pleading wherein
what was said about him was entirely false and, thus, was not substantially true.
TWENTY-NINTH DEFENSE
The Chronicle Herald reported the news as it occurred and fairly commented upon it, as was
its right and privilege.
THIRTIETH DEFENSE
The Plaintiff was and is a public figure, and he voluntarily became such.
THIRTY-FIRST DEFENSE
The Plaintiff was and is a vortex public figure, and he voluntarily became such.
THIRTY-SECOND DEFENSE
The Plaintiff has not alleged that, or wherein, The Chronicle Herald has acted toward the Plaintiff himself out of an animus of actual malice toward the Plaintiff personally.
THIRTY-THIRD DEFENSE
None of what the Plaintiff alleges was written about him personally by The Chronicle Herald
is actionable under the laws of the United States of America or of the State of Mississippi which
laws are, rather, directly repugnant to the “claim” purportedly made in this civil action.
THIRTY-FOURTH DEFENSE
The Plaintiff did not properly demand before filing this civil action any retraction of the allegedly libelous statement he has pleaded as being allegedly written about the Plaintiff himself; because the Plaintiff did not specify wherein the alleged falsity of any words allegedly written about him personally were false in fact but merely offered a conclusory, non-specific, general assertion of
“falsity” which does not suffice.

THIRTY-FIFTH DEFENSE
ANSWER
I. PARTIES
1. The allegations of paragraph 1 of the Complaint are admitted, save and except any
conclusory implication meant to be conveyed by the adjective “investigative” as modifying the noun
“weblog.” The conclusions set forth in paragraph 1 of the Complaint require no response.
2. The Halifax Herald Limited is organized under and by virtue of the laws of the Commonwealth of Canada, a sovereign treaty signatory, with the United States of America, to The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and the Halifax Herald Limited is located at the physical address alleged in Halifax, Nova Scotia. Any allegation in paragraph 2 which is not explicitly admitted is denied, including Plaintiff’s
characterization that The Chronicle Herald so stands in relation to the Plaintiff as to be fairly
characterizable as a “defendant” concerning any “fact” pleaded in the Complaint. (The Chronicle
Herald was that phrase herein for the sake of brevity only and without conceding anything related
to the point here made.) The conclusions set forth in paragraph 2 of the Complaint require no
response.
3. The conclusory assertions of paragraph 3 of the Complaint require no response.

II. “JURISDICTION AND VENUE”
4. The allegations of paragraph 4 of the Complaint are denied. The conclusions set forth in paragraph 4 of the Complaint require no response.
5. The allegations of paragraph 5 of the Complaint are denied. The conclusions set forth in paragraph 5 of the Complaint require no response.
6. The Chronicle Herald does not dispute that the Plaintiff is seeking a recovery in excess of $75,000 in actual damages, exclusive of interest and costs, plus punitive damages. The Chronicle Herald denies each and every other allegation of paragraph 6 of the Complaint. The conclusions set forth in paragraph 6 of the Complaint require no response.
III. FACTUAL BACKGROUND
7. The allegations of paragraph 7 of the Complaint, were those true as stated, are not the
responsibility of The Chronicle Herald, and the Defendant is not liable to Plaintiff therefor.
Nevertheless, The Chronicle Herald demands that the Plaintiff provide strict proof of each and every
fact alleged in paragraph 7 of the Complaint because The Chronicle Herald specifically denies any
allegation thereof which Plaintiff purports is chargeable to The Chronicle Herald, and it denies
generally every other allegation of paragraph 7 of the Complaint. The conclusions set forth in
paragraph 7 of the Complaint require no response.
8. The allegations of paragraph 8 of the Complaint, were those true as stated, are not the
responsibility of The Chronicle Herald, and the Defendant is not liable to Plaintiff therefor.
Nevertheless, The Chronicle Herald demands that the Plaintiff provide strict proof of each and every
fact alleged in paragraph 8 of the Complaint because The Chronicle Herald specifically denies any
allegation thereof which Plaintiff purports is chargeable to The Chronicle Herald, and it denies
generally every other allegation of paragraph 8 of the Complaint. The conclusions set forth in
paragraph 8 of the Complaint require no response.
9. The allegations of paragraph 9 of the Complaint, were those true as stated, are not the
responsibility of The Chronicle Herald, and the Defendant is not liable to Plaintiff therefor.
Nevertheless, The Chronicle Herald demands that the Plaintiff provide strict proof of each and every
fact alleged in paragraph 9 of the Complaint because The Chronicle Herald specifically denies any
allegation thereof which Plaintiff purports is chargeable to The Chronicle Herald, and it denies
generally every other allegation of paragraph 9 of the Complaint. The conclusions set forth in
paragraph 9 of the Complaint require no response.
10. The allegations of paragraph 10 of the Complaint, were those true as stated, are not
the responsibility of The Chronicle Herald, and the Defendant is not liable to Plaintiff therefor.
Nevertheless, The Chronicle Herald demands that the Plaintiff provide strict proof of each and every
fact alleged in paragraph 10 of the Complaint because The Chronicle Herald specifically denies any
allegation thereof which Plaintiff purports is chargeable to The Chronicle Herald, and it denies
generally every other allegation of paragraph 10 of the Complaint. The conclusions set forth in
paragraph 10 of the Complaint require no response.
11. The allegations of paragraph 11 of the Complaint, were those true as stated, are not
the responsibility of The Chronicle Herald, and the Defendant is not liable to Plaintiff therefor.
Nevertheless, The Chronicle Herald demands that the Plaintiff provide strict proof of each and every
fact alleged in paragraph 11 of the Complaint because The Chronicle Herald specifically denies any
allegation thereof which Plaintiff purports is chargeable to The Chronicle Herald, and it denies
generally every other allegation of paragraph 11 of the Complaint. The conclusions set forth in
paragraph 11 of the Complaint require no response.
12. The allegations of paragraph 12 of the Complaint, were those true as stated, are not
the responsibility of The Chronicle Herald, and the Defendant is not liable to Plaintiff therefor.
Nevertheless, The Chronicle Herald demands that the Plaintiff provide strict proof of each and every
fact alleged in paragraph 12 of the Complaint because The Chronicle Herald specifically denies any
allegation thereof which Plaintiff purports is chargeable to The Chronicle Herald, and it denies
generally every other allegation of paragraph 12 of the Complaint. The conclusions set forth in
paragraph 12 of the Complaint require no response.
13. The actual pertinent reportage of The Chronicle Herald, in its entirety, literally speaks
for itself. Any allegation of paragraph 13 of the Complaint, or any implication by the Plaintiff
related thereunto, which is or may appear to be at variance with The Chronicle Herald’s actual
reportage, and/or any fair comment by The Chronicle Herald, is denied. The conclusions set forth
in paragraph 13 of the Complaint require no response.
14. The allegations of paragraph 14 of the Complaint are denied as worded. The conclusions set forth in paragraph 14 of the Complaint require no response.
15. The Chronicle Herald specifically denies that the Plaintiff has pleaded the occurrence of any alleged publication by The Chronicle Herald of anything actionable ex delicto by the Plaintiff
himself as against The Chronicle Herald. The conclusions set forth in paragraph 15 of the
Complaint require no response.

IV. CAUSE OF ACTION [SIC]
COUNT 1: DEFAMATION [SIC]
16. The Chronicle Herald reavers all of its defenses, responses and affirmative defenses
to every preceding and every subsequent numbered paragraph of the Complaint as and for its
response to paragraph 16 of the Complaint.
17. The allegations of paragraph 17 of the Complaint are denied by The Chronicle Herald. The Chronicle Herald specifically denies that the Plaintiff has expressly and specifically pleaded what was allegedly false in any statement actually published in Canada by The Chronicle Herald, and it further specifically denies that the Plaintiff has expressly and specifically pleaded that any publication by The Chronicle Herald of a false statement about the Plaintiff has occurred in this district and/or division, or to whom the alleged “publication” was made, or when. The conclusions set forth in paragraph 17 of the Complaint require no response.
18. The allegations of paragraph 18 of the Complaint are denied by The Chronicle Herald. The Chronicle Herald specifically denies that the Plaintiff has expressly and specifically pleaded what was allegedly false in any statement actually published in Canada by The Chronicle Herald and further specifically denies that the Plaintiff has specifically pleaded that any publication by The Chronicle Herald of a false statement about the Plaintiff has occurred in this district and/or division, or to whom the alleged “publication” was made, or when. The conclusions set forth in paragraph 18 of the Complaint require no response.
19. The allegations of paragraph 19 of the Complaint state nothing specific or material
to Plaintiff’s “claim” and are therefor unintelligible; each and very “allegation” of paragraph 19 of
the Complaint is denied. The conclusions set forth in paragraph 19 of the Complaint require no
response.
20. The Chronicle Herald reavers the responses to paragraphs 7 through 19 of the Complaint as and for a part of its response to paragraph 20 of the Complaint and, further, specifically denies the allegations of paragraph 20 of the Complaint. The conclusions set forth in paragraph 20
of the Complaint require no response.
21. The Chronicle Herald specifically denies each and every allegations of paragraph 21
of the Complaint and demands strict proof thereof. Plaintiff has wholly failed to allege his alleged
special damages in the manner and with that specificity expressly required by the Federal Rules of
Civil Procedure. Plaintiff reavers its denials as to any implied, but unpleaded and unspecified,”
falsity,” as to any alleged, but unspecified, “publication,” and as to any attempt to imply that the
essential “causation” may be presumed to have stemmed from any matter, the actual, specific falsity
of which and the actual publication here of same were, neither one, specifically pleaded, at all. The
conclusions set forth in paragraph 21 of the Complaint require no response.
V. PRAYER FOR RELIEF
Having pleaded neither the actual falsity of any alleged libel allegedly uttered by The
Chronicle Herald, nor any publication thereof in this district or division, nor any causation of any
actionable effect thereof upon himself, The Chronicle Herald declares that the Plaintiff is entitled
to no relief that may be granted by this Honorable Court, wherefore, The Chronicle Herald denies
that the Plaintiff may demand judgment against it for “actual damages,” or punitive damages, or any
other form or manner of relief alluded to in his Complaint.
AND NOW, having answered the allegations of the Complaint, The Chronicle Herald would
show the following additional and alternative objections, defenses and matters in avoidance, as
contemplated by Fed. R. Civ. P. 8.
THIRTY-SIXTH DEFENSE
The claim asserted is barred by the statute of limitations.
THIRTY-SEVENTH DEFENSE
For the reasons explicitly set forth in this pleading, The Chronicle Herald avers that this
action was filed pro se and filed in violation of Fed. R. Civ. P. 11 and that it is also violative of the
Mississippi Litigation Accountability Act. Moreover, the filing and the maintenance of this civil
action was intended to vex the Defendant and Plaintiff’s actions since the filing of it likely will
unlawfully multiply these proceedings.
THIRTY-EIGHTH DEFENSE
Any statement yet to be shown to have been actually uttered by The Chronicle Herald about
the Plaintiff himself will be shown to have been justified as the contemporaneous reporting of the
occurrence of a local court decision and thus privileged and, if shown to have been published here,
then to have been published under circumstances in which that privilege was not actionably
exceeded.
THIRTY-NINTH DEFENSE
Any statement shown to have been actually written by The Chronicle Herald about the
Plaintiff himself will be shown to have been true or substantially true.
FORTIETH DEFENSE
The Plaintiff voluntarily instigated or injected himself into each of the controversies alluded
to but not described in the Complaint and assumed thereby all risks attendant to his doing so. The
Chronicle Herald exercised no dominion or control over the Plaintiff’s deliberately chosen and
pursued courses of action or over the responses of other persons thereto, whether reasonable in
nature or not.
FORTY-FIRST DEFENSE
The Plaintiff is estopped to complaint of the reportage of The Chronicle Herald and all fair
comment related thereto.
FORTY-SECOND DEFENSE
By injecting himself into various controversies as aforesaid, the Plaintiff waived the privilege
of complaining, against The Chronicle Herald, or anyone else, in respect of any matters of fact or
opinion that he invited or authorized others to comment upon, whether in agreement or in opposition,
or that were the subjects of judicial findings of fact about himself, or that might be regarded as noncomplimentary, even insulting, and whether or not and however those matters were published or reported about by others, including by The Chronicle Herald.
FORTY-THIRD DEFENSE
“Homophobia” is a defined term having a general acceptance as to meaning. If, as implied
in his Complaint, Plaintiff himself is in fact not afraid of or averse to homosexuality and/or not afraid
of or averse to alleged homosexuals, nevertheless he has so expressed or published opinions or
descriptive words of a pejorative suggestion and/or so comported himself as to create a fair inference
that he is or may be so averse or afraid, thus a homophobe, as that term is generally defined and as
he and his statements have been characterized by various courts here and in Canada.
FORTY-FOURTH DEFENSE
The Chronicle Herald’s actual actions and writings are protected by freedoms of the press
and of free speech to the full measures set forth in the First Amendment to the Constitution of the
United States of America, The Constitution of the State of Mississippi (1890) and the case decisions
thereunto appertaining (as well as by the common law and the laws of the Commonwealth of
Canada).
FORTY-FIFTH DEFENSE
The Plaintiff is the so-called moderator, editor and/or publisher of all content allowed to be
posted to “slabbed.org.” Nothing is published or can be published thereon which Plaintiff himself
does not pre-approve for publication or re-publication and/or personally endorse by such publications, whereby he invites further such content to be posted there and foreseeably invites all
controversies related thereunto, whatever the sources, whatever the contents thereof, and whatever
motivates same.
FORTY-SIXTH DEFENSE
Prior to the alleged “publication” by The Chronicle Herald of unspecified false matter using
the phrase pleaded in the Complaint, The United States Court of Appeals for the Fifth Circuit
expressly held concerning the Plaintiff that this District Court (in Civil Action No. 1:12-cv-00090-
LG-JMR) had noted that, by using “Slabbed” to do so, Plaintiff had posted information “which can
be [fairly] characterized as derogatory, mean spirited, sexist and homophobic.” (Emphasis added.)
These filings are matters of public record, in both courts. But, the Plaintiff did not seek any manner
of redress in this Court or in the Court of Appeals regarding either of those findings as just quoted;
neither had he filed or prosecuted any cross-appeal respecting same, to any purpose or any effect,
in the Court of Appeals. Neither did the plaintiff seek any manner of relief against substantially
similar findings of fact made in the Supreme Court of Nova Scotia.
FORTY-SEVENTH DEFENSE
Plaintiff must prove that The Chronicle Herald has acted toward him with actual malice and must do so by clear and convincing evidence but The Chronicle Herald has no such animus; thus, the Plaintiff has no evidence of this sort or that may plausibly be so construed.
FORTY-EIGHTH DEFENSE
The Chronicle Herald’s neutral reportage of court decisions and other contemporaneous occurrences of matters of interest in Nova Scotia was justified.
FORTY-NINTH DEFENSE
The United States Court of Appeals has now so ruled in No. 13-60002 that this District Court
may take judicial notice of this Plaintiff’s website’s content and of juridical filings by Plaintiff in this
and other jurisdictions in the context of proceedings upon, inter alia, the First Defense. Plaintiff is
estopped to deny the contents of any of same.
FIFTIETH DEFENSE
The Plaintiff may not seek damages for statements of opinion contained in substantially
accurate reports by The Chronicle Herald concerning any statement or opinions that the Plaintiff has
expressed, published or pleaded, however inappropriate or grotesque, and even if Plaintiff’s opinions
or pejoratives are not themselves legally actionable by those whom the Plaintiff describes or of
whose actions he apparently disapproves.
FIFTY-FIRST DEFENSE
Plaintiff must prove that he is not possessed in fact of and that he does not express an
irrational fear of, aversion to, or is not inclined to discrimination against homosexuality or
homosexuals, and that The Chronicle Herald has actually published in this district and division a
false statement of purported fact about him that explicitly said that he is and Plaintiff must prove that
that statement about him was not substantially true but was actually false and wherein so.
FIFTY-SECOND DEFENSE
If the Plaintiff is a homophobe, then any actual fear or aversion which the Plaintiff himself
may have had or still has towards homosexuality and/or alleged homosexuals has been, by definition,
irrational and, thus, is not legally sanctionable by this Court, and the Plaintiff may not seek
“damages” from The Chronicle Herald for his harboring any such irrational fear. However, any
pretense by which the Plaintiff may have feigned (or encouraged any conclusion) that he is
homophobic, if done for commercial reasons, would be sham and false and thus could not be
actionable, in any context.
FIFTY-THIRD DEFENSE
Plaintiff has sustained no cognizable or non-cognizable direct loss or injury to himself.
FIFTY-FOURTH DEFENSE
No such “injury” as Plaintiff alleged is cognizable in the context Plaintiff has alleged.
FIFTY-FIFTH DEFENSE
Any alleged injury or loss which the Plaintiff claims he has sustained by being characterized
as an “anti homosexual blogger” falls within the ambit of the doctrine of de minimus non curat lex.”
FIFTY-SIXTH DEFENSE
The publication, in Halifax, Nova Scotia, Commonwealth of Canada, of an opinion or a
statement of fact fairly characterizing the Plaintiff as being an “anti homosexual blogger” cannot
plausibly have impaired any cognizable interest he might possess or have plausibly diminished his
public persona or reputation as an anti homosexual blogger, moreover it addressed a contemporaneous decision in a local court proceeding. The Chronicle Herald was not chargeable
with any error in the court decision reported or any offense taken to that decision by the party against
whom the decision issued. The Defendant reported the local current news with reasonable accuracy
when describing the Supreme Court’s findings.
FIFTY-SEVENTH DEFENSE
Plaintiff has failed to mitigate, or avoid entirely, any alleged direct loss or injury he has claimed conclusorily.
FIFTY-EIGHTH DEFENSE
The defendant avers, upon information and belief, that the plaintiff may have received, or accepted, or agreed to accept or receive things of value or other assistance whatever the form thereof,
as an inducement to commence or to prosecute this civil action.
FIFTY-NINTH DEFENSE
Plaintiff is estopped to assert that any direct loss or injury he has allegedly sustained was
caused by The Chronicle Herald as opposed to being caused by some other actor or circumstance,
and whether actionable or otherwise.
SIXTIETH DEFENSE
The Chronicle Herald invokes Section 85-5-7, Mississippi Code.
SIXTY-FIRST DEFENSE
The Plaintiff has confected or exaggerated any alleged direct “loss” or “injury” to himself for
which he seeks recovery of compensatory damages from The Chronicle Herald.
SIXTY-SECOND DEFENSE
Any direct loss or injury the Plaintiff himself may have sustained was proximately caused or contributed to by Plaintiff’s own actions or by the actions of other individuals or entities for which
The Chronicle Herald is neither answerable nor liable.
SIXTY-THIRD DEFENSE
Plaintiff has not properly asserted a claim for any special damages.
SIXTY-FOURTH DEFENSE
Punitive damages against this Defendant cannot be justified in this case, and any award of punitive damages to Plaintiff against this Defendant would violate the due process clause of the Fourteenth Amendment to the Constitution of the United States of America in that the basis for awarding punitive damages is vague, standardless, and not rationally related to any legitimate
governmental interest.
SIXTY-FIFTH DEFENSE
Punitive damages against this Defendant cannot be justified in this case, and any award of
punitive damages to Plaintiff against this defendant would violate the due process clause in Article
3, Section 14, of the Constitution of the State of Mississippi in that the basis for awarding punitive
damages is vague, standardless, and not rationally related to any legitimate governmental interest.
SIXTY-SIXTH DEFENSE
Punitive damages against this Defendant cannot be justified in this case, and any award of
punitive damages to Plaintiff against this Defendant would be violative of the procedural
safeguards provided to this Defendant under the Fifth and Sixth Amendments to the Constitution
of the United States of America (as applied to Mississippi and other individual states through the
Fourteenth Amendment to the Constitution of the United States of America) in that punitive
damages are penal in nature, and this Defendant is entitled to the same procedural and evidentiary
safeguards accorded to those charged with crimes against the United States of America or against
any individual state thereof before any such penalty can be assessed.
SIXTY-SEVENTH DEFENSE
Punitive damages against this Defendant cannot be justified in this case, and any award of
punitive damages to Plaintiff against this Defendant would violate this Defendant's right to
protection against "excessive fines" as provided in the Eighth Amendment to the Constitution of
the United States of America (as applied to Mississippi and other individual states through the
Fourteenth Amendment to the Constitution of the United States of America).
SIXTY-EIGHTH DEFENSE
Plaintiff’s claims for punitive damages cannot be sustained, because an award of punitive
damages under Mississippi law by a jury, who, before retiring to consider the issue, (1) is not
provided a standard constitutionally sufficient for determining the appropriateness of, or the
appropriate amount of, a punitive damages award, (2) is not instructed on the limits on punitive
damages imposed by the applicable principles of deterrence and punishment, (3) is not expressly
prohibited from awarding punitive damages or determining the amount of an award of punitive
damages, in whole or in part, on the basis of invidiously discriminatory characteristics, including the
corporate status of a Defendant, (4) is permitted to award punitive damages under a standard for
determining liability for punitive damages that is vague and arbitrary as to damages permissible,
and/or (5) is not subject to judicial review on the basis of objective standards, would violate this
Defendant’s substantive and procedural due process and equal protection rights guaranteed by the
Fourteenth Amendment to the Constitution of the United States of America and the double jeopardy
clause of the Fifth Amendment as incorporated into the Fourteenth Amendment, and by the
Mississippi constitutional provisions providing for due process, equal protection and the guarantee
against double jeopardy.
SIXTY-NINTH DEFENSE
Any award of punitive damages in this case would violate this Defendant’s right to
procedural due process guaranteed by the Fifth Amendment and the Fourteenth Amendment of the
Constitution of the United States of America and corresponding provisions of the Mississippi
Constitution, if the jury is not authorized to apportion damages separately and severally against joint
tortfeasors where the punitive damages are predicated upon the alleged enormity of the wrong
committed by each alleged tortfeasor.
SEVENTIETH DEFENSE
The submission of punitive damages to a jury, upon the pretext of having the jury make
"findings of fact" about the degree of reprehensibility of this Defendant’s alleged conduct, is
violative of this Defendant’s rights to the due process of law. No jury can engage in such a finely
tuned exercise of deterrence calibration. No jury is institutionally competent to make such a
necessary determination to justify a constitutionally permissible deterrence calibration.
SEVENTY-FIRST DEFENSE
The submission of punitive damages to a jury, upon the pretext of having the jury make
"findings of fact" about the disparity between the harm, if any, suffered by the Plaintiff and the
punitive damages sought and/or any punitive damages awarded, is violative of this Defendant’s
rights to the due process of law. No jury can engage in such a finely tuned calculation of a
constitutionally acceptable disparity between the harm, if any, suffered by the Plaintiff and the
punitive damages sought and/or any punitive damages awarded. No jury is institutionally competent
to make such a necessary determination to justify a constitutionally permissible disparity or
correlation.
SEVENTY-SECOND DEFENSE
The submission of punitive damages to a jury, upon the pretext of having the jury make
"findings of fact" regarding the differences between the punitive damages awarded by themselves
and those imposed in comparable cases, is violative of this Defendant’s rights to the due process of
law. Jurors have no such information, experience or competency and go well beyond their lawful
fact-finding function when allowed to make such determinations without any basis or competency
for doing so.
SEVENTY-THIRD DEFENSE
Plaintiff’s claims for punitive damages cannot be sustained because an award of punitive
damages under Mississippi law without proof of each separate element by evidence beyond a
reasonable doubt would violate this Defendant’s substantive and procedural due process rights under
the due process provisions of the Mississippi Constitution and the Constitution of the United States
of America.
SEVENTY-FOURTH DEFENSE
Any imposition of punitive damages based upon theories of respondeat superior, agency,
vicarious liability, or joint and several liability violates the due process clause of the Fourteenth
Amendment of the Constitution of the United States of America, and the corresponding provisions
of the Mississippi Constitution.
SEVENTY-FIFTH DEFENSE
Any imposition of punitive damages against this Defendant would violate the due process
clauses of the Fourteenth Amendment of the Constitution of the United States of America and the
Mississippi Constitution, in that the bases for imposing liability and for awarding punitive damages
are vague, retroactive, limitless, standardless and not rationally related to any legitimate
governmental interests.
SEVENTY-SIXTH DEFENSE
Any imposition of punitive damages against this Defendant based upon wealth would violate
the equal protection clause of the Fourteenth Amendment to the Constitution of the United States
of America.
SEVENTY-SEVENTH DEFENSE
To the extent that it seeks punitive damages, the complaint violates this Defendant's rights
to substantive due process, as provided in the Fifth and Fourteenth Amendments to the Constitution
of the United States of America, and therefore, fails to state a basis upon which punitive damages
can be awarded.
SEVENTY-EIGHTH DEFENSE
Plaintiff’s claim for punitive damages cannot be sustained because Mississippi law regarding
the standard for determining liability and the amount of punitive damages fails to give this Defendant
prior adequate notice of the conduct for which punitive damages may be imposed and is void for
vagueness in violation of this Defendant's due process rights guaranteed by the Fourteenth
Amendment to the Constitution of the United States of America.
SEVENTY-NINTH DEFENSE
Plaintiff’s claim for punitive damages cannot be sustained because, under Mississippi law,
a jury award of punitive damages, to the extent not subject to post-trial and appellate court reviews
under constitutionally adequate, objective standards to insure that the award is rationally related to
the state’s legitimate goals of deterrence and retribution, further violates this Defendant's due process
rights guaranteed by the Fourteenth Amendment to the Constitution of the United States of America.
EIGHTIETH DEFENSE
Any removal of homophobic, anti homosexual(s), or anti homosexuality matter or content
from his blog or other records or date compilations would constitute spoliation of evidence.
WHEREFORE The Halifax Herald Limited denies that it is liable to the Plaintiff, in any
amount, and it demands to be dismissed.

DATED: March 30, 2015.

Respectfully submitted,
THE HALIFAX HERALD LIMITED

Reader comment: Jennifer Handshoe an officer of Slabbed New Media, LLC

Real Malice received an intriguing reader comment: during a recent hearing in 24th Judicial District Court for Jefferson Parish, Louisiana, in the case of process server Chris Yount against blogger Douglas Handshoe and attorney Bobby Truitt, Doug's wife, Jennifer Handshoe, showed up in court. Her hubbie, though, was notably absent. The Handshoes' attorney Connie Sue Montgomery reportedly told Judge Schlegel that Jennifer was present as an "officer" of Slabbed New Media, LLC, and was thus privy to events unfolding in court regarding a defamation case centered on the publication of a minor child's sexually explicit drawing on Handshoe's blog Slabbed.

Slabbed New Media was incorporated by Mr. Doug in Mississippi in 2011. Douglas is the only person listed with the Secretary of State as being a member of the company. Handshoe has in fact in court filings stated that he is the sole member of the company.



Assertions made to a court by an attorney in response to a judge's question -- now there's a situation where one should always tell the truth.

So, was the representation to the court false, or is Mrs. Handshoe really an officer/member of Slabbed New Media?

If Connie Sue misrepresented facts to the judge, did she just beccome a participant in Mr. Doug's schemes.

Did Mr. Doug just paint a big legal liability bullseye on his wife's back?

Was Douglas Handshoe afraid to show up on the Louisiana side of the border, where he might be served with discovery or subpoenas? Reliable sources say he has been notably absent in Louisiana court hearings on numerous occasions over the past several months. He seems to dislike being discovered.

Jennifer Handshoe works for the Mississippi State Department of Health as an Early Intervention Service Coordinator. Her Supervisor there is Michael Cruthird, whose name sounds awfully familiar. . . . Gerald Cruthird is one of Mr. Handshoe's Mississippi attorneys. . . . . And, lo and behold, Sheila Cruthird works as an accountant for Douglas Handshoe, CPA.

Who are the Cruthirds and what is their relationship to the Handshoes?

Early Childhood Intervention is "a support and educational system for very young children (aged birth to six years) who have been victims of, or who are at high risk for child abuse and/or neglect."

Was Mrs. Handshoe, an expert in child abuse or neglect, part of the decision to published Chris Yount's minor child's drawing on Slabbed alongside text that allegedly defamed Mr. Yount by suggesting he had molested his child?

Stay tuned . . . 



mardi 24 mars 2015

USA v. Moses Shepard: Cyberstalking, 18 U.S.C. § 2261A and the First Amendment

The case of US v. Shepard, No. CR 10-1032-TUC-CKJ (D. Ariz. Jan. 13, 2012) made significant distinctions from its predecessor, the more famous US v. Cassidy, on the topic of criminal cyberstalking. The criminal defendant in this case was charged with cyber harassment under federal law 18 U.S.C. § 2261A. He argued to the court that the criminal statute was unconstitutionally vague and offended his free speech rights under the First Amendment to the U.S. Constitution. 

With respect to cberstalking, Shepard was charged with the following:
In Count One, Shepard was charged as follows:
From on or about August 6, 2009, though April 13, 2010, at or near Tucson, in the District of Arizona , MOSES ANTONIO SHEPARD, with the intent to harass, [] and cause substantial emotion[al] distress to Linda Mari Arnaud, a person in another State, did use the mail, any interactive computer service, and any facility of interstate or foreign commerce to engage in a course of conduct that caused substantial emotional distress to Linda Mari Arnaud, to wit, MOSES ANTONIO SHEPARD repeatedly contacted Linda Mari Arnaud by means of electronic mail; in violation of Title 18, United States Code, Sections 2261A(2)(A) and 2261(b)(5) and (b)(6).
Indictment, Doc. 22, p. 1. As the jury was instructed, the elements of stalking as alleged in Count One requires proof beyond a reasonable doubt of the following elements:
First, that at the time of the acts charged in the indictment, Linda Mari Arnaud and Defendant were in different states;
Second, that the Defendant used the mail, any interactive computer service, or any facility of interstate or foreign commerce, as charged in the indictment;
Third, that the Defendant engaged in a course of conduct with the intent to harass or cause substantial emotional distress to Linda Mari Arnaud; and
Fourth, that as a result of that course of conduct, Linda Mari Arnaud experienced substantial emotional distress.
Jury Instructions, Doc. 715, p. 14.
Shepard tried to argue there was some objective standard for "substantial emotional distress" and that the criminal cyber statute inhibited his right to free speech in an uncsontitutional way. 

On this issue of criminal acts via the Internet, the district court judge stated:
To violate 18 U.S.C. § 2261A, a defendant must act with the intent to "kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress" to another person, and must actually cause substantial emotional distress to another person. There is no requirement that a defendant must be aware of the exact point where his conduct causes substantial emotional distress.
So, the subjective mental state of the victim remains critical to determining cyber-stalking. The "free speech" argument failed as well.
 Although Shepard argues that a person's First Amendment rights may be infringed because that person may refrain from expressing an idea or innocuous thought because of the alleged vagueness, it is a defendant's intent to kill, injure, or harass, etc. that precludes 18 U.S.C. § 2261A from infringing on First Amendment rights when a person expresses him or herself without the intent proscribed by the statute. The Court finds 18 U.S.C. § 2261A is not unconstitutionally vague on its face. United States v. Shrader, 1:09-0270, 2010 WL 2179572 (S.D.W.Va. 2010).
The judge then went into further discussion of the U.S. Constitution as applied in Shepard's case:
Shepard also asserts that, as applied to him, 18 U.S.C. § 2261A is unconstitutional. He points out that the Supreme Court has held that the First Amendment:

do[es] not permit [the government] to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). Therefore, Shepard asserts that, for the speech at issue to fall outside the purview of the First Amendment, this Court must determine whether the speech (1) invited imminent lawlessness and (2) that the imminent lawlessness was likely to occur. However, Shepard has not provided any authority that Brandenburg is the only basis to conclude speech is not protected by the First Amendment. Rather, freedom of speech "is not an unlimited, unqualified right . . . the societal value of speech must, on occasion, be subordinated to other values and concerns." Dennis v. United States, 341 U.S. 494, 505 (1951); Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942) (benefit of speech which is of slight social value may be outweighed by social interest in order and morality). The freedom of speech "referred to by the First Amendment does not include a freedom to disregard these traditional limitations." R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1992); see also Watts v. United States, 394 U.S. 705 (1969) ("true threats" are not protected by the First Amendment); Giboney v. Empire Storage & Ice Co.,336 U.S. 490 (1949) (speech integral to criminal conduct is not protected by the First Amendment).
The Supreme Court and other courts have consistently held that constraints of free speech exist in certain well defined contexts and situations perhaps most fully expressed in the Chaplinsky decision. The judge then moved on to an intriguing case where First Amendment consideration did put a halt to a criminal prosecution in the contemporary Internet context (a la 2011), United States v. Cassidy. As the Electronic Frontier Foundation summarized Cassidy:
A federal district court judge in Maryland has blocked the government's use of a federal anti-stalking law to prosecute a man for posting insults and criticism of a public figure to Twitter, ruling that "the First Amendment protects speech even when the subject or manner of expression is uncomfortable and challenges conventional religious beliefs, political attitudes or standards of good taste."
 The issue in Cassidy, however, was cyber harassment of someone who was arguably a public person, who was a Tibetan Buddhist religious leader. In Shepard, though, the target did not qualify for "public person" status. The judge differentiated Cassidy:
In United States v. Cassidy, ___ F.Supp.2d ___, RWT 11-091, 2011 WL 6260872, (D.Md. 2011), the court distinguished those circumstances where harassing conduct was targeted towards a particular person and received outside a public forum from a circumstances in which harassing conduct is posted on, if effect, a public bulletin board. That court recognized that the government has a strong and legitimate interest in preventing the harassment of individuals. See e.g, Thone v. Bailey, 846 F.2d 241, 243 (4th Cir. 1988). Moreover, unlike the conduct discussed in Cassidy, the alleged harassing conduct in this case was not directed to a public figure and was not based on critiquing political or religious leaders.
The Court finds the government has a strong and legitimate interest in preventing the harassment of individuals and that the governmental interest is unrelated to the suppression of free expression. Furthermore, the Court finds that the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Indeed, any incidental restriction on Shepard's First Amendment freedoms does not violate the First Amendment because the speech is integral to the alleged criminal conduct. United States v. Stevens, 130 S.Ct. 1577, 1584 (2010) (First Amendment does not protect "speech integral to criminal conduct").
Thus Cassidy may not have been the blow to the federal criminal cyberstalking statute that some commentators thought. Cyberstalking remains a crime, and the First Amendment will not keep all such criminals from being convicted for such online conduct.

jeudi 19 mars 2015

Since same-sex marriage is recognized by the federal government, why do some U.S. Senators' online contact forms discriminate, while others express equality??

In the United States of America same-sex marriage is recognized by the federal government. As Wikipedia tells it:
 On October 18, 2012, the Second Circuit Court of Appeals became the first court to hold sexual orientation to be a quasi-suspect classification and applied intermediate scrutiny to strike down Section 3 of DOMA as unconstitutional in Windsor v. United States.[14] The U.S. Supreme Court ruled in Windsor on June 26, 2013, that Section 3 violated the Fifth Amendment.[15][c] As a result of the Windsor decision, married same-sex couples—regardless of domicile—have federal tax benefits (including the ability to file joint federal income tax returns), military benefits, federal employment benefits, and immigration benefits.[16][17][18][19] In February 2014, the Justice Department expanded federal recognition of same-sex marriages to include bankruptcies, prison visits, survivor benefits and refusing to testify against a spouse.
So, why then do the comment submission forms on United States senators' web sites discriminate against married gay people? Here, for example, is Louisiana Senator David Vitter's comment form:
 Do you see any acknowledgement of married same-sex couples?

Compare this with Vermont Senator Leahy's comment form:


And this is California Senator Boxer's form:

Not quite as all-inclusive as Senatory Leahy, but a good try!

Shouldn't all federal senator's have to acknowledge federal law and the decision of the U.S. Supreme Court? Check your senator's web site, and urge them to take action if they are discriminating against married same-sex couples!

mercredi 18 mars 2015

Chilling speech and avoiding discovery: the legal antics of a homophobic Mississippi blogger (he makes enemies everywhere he goes)

 "intrepid, courageous patriots who understand our 
United States Constitution and believe in the necessity for absolute freedom of speech."  
Anne-Marie Vandenweghe describing Douglas Handshoe & 
Bobby Truitt in 2015

Oh, really?
intrepid, courageous patriots who understand our United States Constitution and believe in the necessity for absolute freedom of speech. - See more at: http://slabbed.org/2015/02/05/whistleblower-guest-post-anne-vandenweghe-darkness-allows-evil-to-flourish/#sthash.M56LeYti.UUifuQhf.dpuf
intrepid, courageous patriots who understand our United States Constitution and believe in the necessity for absolute freedom of speech. - See more at: http://slabbed.org/2015/02/05/whistleblower-guest-post-anne-vandenweghe-darkness-allows-evil-to-flourish/#sthash.M56LeYti.UUifuQhf.dpuf

Free speech? For me only, thank you

Sometime recently, homophobic Mississippi blogger Douglas Handshoe sued two newspapers, the Toronto Star and the Halifax Chronicle-Herald for libel. He also sued an investigative reporter for the Star, Peter Edwards. He filed the actions in Hancock County Circuit Court, Mississippi. In 2013, Handshoe sued Nova Scotia legal commentator Michael Coyle for libel, also in Hancock County, for an article on his legal affairs web site that described Handshoe's defeat in Nova Scotia Supreme Court. That same year he also sued Yours Truly, also for libel, also in Hancock County, for writing about his history with felon Fred Goodson. He also sued Trout Point Lodge, Charles Leary, Daniel Abel, Chris Yount, Nova Scotia Enterprises, and Aaron Broussard for conspiracy, abuse of process, and malicious prosecution, also in Hancock County, in retaliation for being sued for defamation over what one federal judge termed his "campaign" to damage and harass.

In each case, Douglas Handshoe used his own lawsuits as fodder for expanding his blog content and/or his Twitter feed.

In the recent lawsuits against the Canadian newspapers, Handshoe has reportedly alleged it was defamatory to publish that he is "homophobic." Handshoe actually alleges that a court of law has never found him to be anti-homosexual. Gee, Doug, guess you have never read the following court decisions:
  • Nova Scotia Supreme Court Justice Muise in 2011: "In addition in the case at hand, the blogs contain comments based on the actual or perceived sexual orientation of the intended targets.  Those comments  are clearly meant to be derogatory and insulting.  I will not reproduce them here.  It is the type of expression that engenders harmful results such as discrimination and hatred.  It is not the type of free expression that deserves protection and  fostering."
  • U.S. District Court Chief Judge Guirola in 2012: "Handshoe has published numerous entries on 'Slabbed' about Plaintiffs, many of which may be characterized as derogatory, mean spirited, sexist and homophobic." 
  • U.S. Circuit Court Judge Walker-Elrod in 2013 on Handshoe's homophobic rhetoric: "grotesque" and "reprehensible."
  • Nova Scotia Supreme Court Justice Coady in 2014: "The statements also contained anti-gay rhetoric and homophobic comments."
 In May of 2013, Handshoe filed a Digital Millenium Copyright Act take-down notice with Google, swearing under penalty of perjury that the Creative Commons photograph of him that appears on this blog was his own intellectual property. His notice was promptly published to the Chilling Effects Clearinghouse, where it belongs. Google appears to have ignored him.

Who says the U.S. Supreme Court said copyright was about protecting the right to speak? Not in Mr. Doug's universe. All I can say is, Handshoe gives me chills.

Handshoe also just sued Daniel Abel, Loyola University of New Orleans, university legal clinic attorney Ramona Fernandez, Chris Yount and a law student in U.S. federal district court in Mississippi for "abuse of process" and "malicious prosection." Suing a law school student working in a legal clinic on behalf of a minor child goes beyond the pale; but not for Doug, resolutely supported by his wife Jennifer Handshoe. Such a clinic usually reserves its time and resources to help those less fortunate in need of legal aid; now they will have to waste their time dealing with Mr. Doug over a case where he used a child's sexually-explicit drawing for his own selfish ends.

Catholic school St. Stanislaus alum, Handshoe delved into the divorce court file of Mr. Yount, whose only connection to Handshoe was serving him with legal process, apparently looking for embarassing material to publish on his blog "Slabbed." Good way to try to avoid being served with legal complaints in the future, no?

Seems like Handshoe also publicly accused the Sun Herald newspaper and its Political Editor Paul Hampton of being on the take: "Enter Doug Handshoe of the Slabbed blog, who has a tendency to go off half-cocked."

Read more here: http://www.sunherald.com/2014/08/27/5766185_from-the-im-not-in-it-for-the.html#storylink=cpy

It seems like Handshoe, with the help of his buddy attorneys Bobby Truitt and Connie Sue Montogomery, will stop at nothing to silence words about him he doesn't like. Those words might be on a blog, like this one, in a newspaper, or in a court document.

Handshoe rants about being the ultimate defender of free speech and the consummate enemy of chilling effects. The facts appear to say distinctly otherwise. A bit lopsided in your fervent online advocacy, Doug?

Discover me? No thanks

Handshoe also has a special penchant for fastidiously avoiding discovery, even though he loves filing his own lawsuits and legal challenges. "Abuse of process," anyone?

One has to wonder when the courts--especially Hancock County Circuit Court--are going to wake up and take a full, long look at what's occurring to the integrity of their system. Most often, if Handshoe hurls an accusation against someone, it's because he's truly engaged in exactly the same conduct he's claiming his opponent engages in. "Litigation terrorism," anyone?

On the topic of Handshoe and avoiding discovery, let's review a few examples:
1. In the first Canadian litigation against him, he simply didn't show up, despite being personally served with legal process (by Chris Yount). Thus, no discovery.

2. In the second Canadian litigation against him, court records show he filed an affidavit related to his ultimately-unsupported allegtions of "unclean hands." Under Nova Scotia law, the opposing party has a right to cross-examine a person whose affidavit is submitted into evidence. Handshoe went to the extent of making the extraordinary request to the Nova Scotia Supreme Court to relieve him from the obligation of being cross-examined. He lost, and as soon as he lost, he pulled his own affidavit so that no one could ask him questions under oath. Hmmm, wonder why?

3. In 2014, there was a U.S. district court case in Mississippi between Magnolia Group and O'Dwyer Realty. According to Magistrate Judge Walker, a defendant sought from the plaintiff [not Handshoe] "disclosure of communications among Douglas Handshoe/Slabbed.org and Magnolia Group, Keith Aschliman or William Washburn." The secretive Mr. Handshoe intervened in the lawsuit "in an effort to prevent disclosure" of those communications. "Handshoe seeks to prevent Magnolia Group from disclosing what he asserts are confidential communications," according to the judge's decision. Again, Handshoe lost. "In the instant case, Defendant Bunch is not asking Handshoe to disclose confidential information or the identity of confidential sources. In fact, Defendant Bunch has not requested any disclosures whatsoever from Handshoe or Slabbed.org." Of course, that did not prevent Handshoe from wasting the court's time with his silly motion, trying to chill any speech or disclosure about him that he could not control.

4. In his 2012 SPEECH Act removal case, Judge Louis Guirola noted about Handshoe: "In his Memorandum in Support of his Motion for Summary Judgment, Handshoe represented to the Court that 'disposition of the case need not involve discovery and turns on legal issues which [the] Court [could] resolve by the litigants' respective motions for summary judgment.' The record indicates that there has been no discovery in this action." Enough said.

5. In his failed attempt to get a Canadian copyright judgment against him tossed out under the SPEECH Act, Handshoe filed an anti-suit injunction motion in Judge Louis Guirola's court, trying to get Judge Guirola in Mississippi to order Judge Piper Griffin in New Orleans to put a stop to Daniel Abel's defamation suit against Handshoe. Too bad this violates a basic principle of the federal democracy: The constitutional right of each state to maintain its own independent judicial system for the resolution of legal disputes. This is a fundamental tenet of the USA's federal system of government. Again, legal tactics (or are they antics?) that violate the U.S. Constitution isn't beyond Handshoe.

6.  Right now in that same New Orleans Civil District Court, Handshoe attempted to have the libel lawsuit against him stopped by filing not one, but two anti-SLAPP (strategic lawsuit against public participation) motions. Both were denied by Chief Judge Piper Griffin, and the time came for answering discovery. Court documents show Handshoe is, yet again, adamantly refusing to comply with his legal obligation to be discovered. Daniel Abel's motion to get a court order compelling him to answer discovery will soon be heard. A similar motion to compel his discovery is scheduled for May in the copyright judgment case against him   . . .  stay tuned.