Definitely loving all of this. And right up front (just in case the defendant thinks she can rob Peter Techdirt to pay Paul Eric Posey), I’ll make it clear this post will be filled with colorful expression, hyperbole, highly opinionated takes on the lawsuit, and… possibly… archaic slang.

A lot of people (especially the most awful ones) think libel laws in this country are too restrictive. They claim it’s almost impossible to rifle through someone’s wallet via court order because someone said something about them they didn’t like. In most cases, those people are like the defendant here — someone who probably thought it was impossible to get successfully sued for libel in the United States.

You know these people. They’re the ones who cry libel every time one of their own is insulted but say dumb shit like “facts don’t care about your feelings” when other people complain about the garbage flowing out their social media accounts.

The saddest thing about this case is that this person continued to do the libel even after she knew what she was saying on social media was definitively not true. (h/t Volokh Conspiracy)

A jury has awarded more than $1.1 million in damages to the drag performer who sued a blogger for defamation.

The unanimous verdict was returned Friday. The jury found that blogger Summer Bushnell defamed Post Falls resident Eric Posey when she accused him of exposing himself to the crowd while he performed in drag at the Coeur d’Alene City Park bandshell in June 2022.

That’s hilarious. Not so much for Eric Posey, who was falsely accused of exposing himself. He sued the blogger in 2022 for claiming something had happened that actually hadn’t happened.

And, of course, the posting Posey sued Bushnell over was motivated by her own bigotry. It was also an attempt to rouse a rabble that rarely needs an excuse to be roused.

The day of Posey’s performance, June 11, 2022, Bushnell posted a video of herself discussing the mass arrest of Patriot Front members near City Park, as well as footage from Posey’s performance.

“Why did no one arrest the man in a dress who flashed his genitalia to minors and people in the crowd?” she said in the video. “No one said anything about it and there’s video. I’m going to put up a blurred video to prove it.”

Yes, this is the kind of person who thinks posting an edited video can “prove” anything. However, it did prove this: there are plenty of suckers in Idaho and some of them wear government-issued uniforms. After racking up a few thousand views on social media, the edited video generated national news coverage as well as a local police investigation. Fortunately, the criminal charges were dropped after prosecutors took a look at the unedited video.

City prosecutors ultimately declined to file charges and stated publicly that the unedited video showed no exposure.

Here’s what Bushnell posted, as included in Posey’s lawsuit [PDF] against the blogger:

Here’s the same shot in unedited form:

After being sued by the drag performer, the blogger claimed this was all just an unfortunate misunderstanding. The video had been passed on to her by another person who had blurred the crotch area and Bushnell was just passing along this information.

But that excuse only lasted until she was called to the stand to testify.

Wendy J. Olsen, legal counsel for Posey, questioned Bushnell about Facebook messages she sent to multiple friends, including ones in which she references being able to see Posey’s genitals in an unedited video.

“And you knew at the time it was false,” Olsen said.

“It was not accurate,” Bushnell replied.

“You knew that at the time,” Olsen said.

“Correct,” Bushnell said.

That’s libel, folks. That’s fully admitted defamation by the defamer on the record in court during a jury trial. That can’t be undone. That’s how you lose a libel case in the United States. You say something defamatory, knowing it’s not true.

Bushnell’s lawyer, despite the $1.1 million damages award and despite his client’s own admission she had lied to people about the drag performer, continues to engage in self-delusion of his own.

Attorney Colton Boyles, who represents Bushnell, told jurors that his client’s allegations were “close to the line” but did not cross the line into defamation. He maintained that Bushnell’s “honest belief” is that Posey exposed himself, though she admitted on the witness stand that she never saw the “fully exposed genitals” she described to others.

“That remains her steadfast testimony to this day,” Boyles said.

There’s a very good reason Colton Boyles would represent someone like Bushnell. And it’s not because he’s such a great litigator. No, this is all ideological. Colton’s decision to take this case was likely motivated by his own personal animus against people like drag performer Eric Posey.

Boyles, whose full name is Dennis Colton Boyles, was recently retained by the Community Library Network – the group of Kootenai County libraries outside of Coeur d’Alene – whose board members have ambitions of restricting books and services.

He defended former Idaho Lt. Gov. Janice McGeachin when she lost a public records lawsuit to the Idaho Press Club.

Boyles pleaded guilty to a driving under the influence misdemeanor late last year and is on unsupervised probation until Dec. 12.

He has appeared as a guest on far-right internet shows, such as “The Pete Santilli Show.” Pete Santilli was a vocal supporter of anti-government activist Ammon Bundy during the armed occupation of the Malheur National Wildlife Refuge.

Ammon Bundy’s governor campaign paid Boyles’ firm $5,000 in 2022 for legal advice.

In an Epoch Times documentary, Boyles pushed deep state conspiracy theories about Child Protective Services.

“I would say it is a state- and federal-funded kidnapping system,” Boyles said.

[…]

In 2021, Boyles donated $500 to Post Falls School Board candidate David Reilly, a former radio host who has expressed antisemitic views and attended the 2017 white supremacist Unite the Right rally in Charlottesville, Virginia.

With competent representation, the blogger may have been able to secure a settlement in the low thousands. She might have been able to walk away with nothing more than a public apology. But she chose to retain a showboating rube. I hope he can explain to Bushnell how he just cost her hundreds of thousands of dollars and makes it clear that no matter how many libs the two have collectively “owned,” being stupid on social media can’t really be considered a stable revenue stream.

We have pointed out just how ridiculous Elon Musk’s SLAPP lawsuit against the Center for Countering Digital Hate is, so much that I supported the filing of an amicus brief in support of CCDH, even as I find CCDH’s positions and research to be generally problematic and misleading. But, even if their research methods aren’t great, they still deserve their right to speak out, and they should not face ruinous litigation from a petulant CEO who only pretends to support free speech.

On Thursday, there were oral arguments in the case, and to say they did not go well for Elon would be an understatement. The judge appeared to openly mock the company for its terrible legal arguments. And, most importantly, he (correctly) pointed out how “antithetical” to free speech this lawsuit appeared to be:

“You put that in terms of safety, and I’ve got to tell you, I guess you can use that word, but I can’t think of anything basically more antithetical to the First Amendment than this process of silencing people from publicly disseminated information once it’s been published,” Breyer said.

“You’re trying to shoehorn this theory by using these words into a viable breach of contract claim,” the judge added.

This was exactly the point that was raised in the amicus brief (brilliantly put together by Harvard’s Cyberlaw clinic). That the claims of “breach of contract” were a nonsense attempt to stifle speech, and hoping that by not including a defamation claim it would somehow avoid First Amendment scrutiny. The judge, Charles Breyer, seemed to have figured out ExTwitter’s sneaky plan pretty easily.

Near the end of the hearing, the judge noted that if something is proven to be true a defamation lawsuit falls apart. Why, he said, didn’t Musk’s X bring a defamation suit if the company believes X’s reputation has been harmed?

“You could’ve brought a defamation case, you didn’t bring a defamation case,” Breyer said. “And that’s significant.”

Yeah, because everyone knows that there was no actual defamation.

The judge appeared also to see through the nonsense of the breach of contract claims directly. ExTwitter claims that CCDH should be liable for the loss of ad revenue of advertisers leaving the platform in response to CCDH’s research report. But, the judge pointed out how tenuous this was, to the point of calling the argument “one of the most vapid extensions of law I’ve ever heard.”

But in order to make this case, X had to show the group knew the financial loss was “foreseeable” when it started its account and began abiding by Twitter’s terms of service, in 2019, before Musk acquired the site.

X lawyer Hawk argued that the platform’s terms of service state that the rules for the site could change at any time, including that suspended users whom the group says spread hate speech could be reinstated.

And so, Hawk said, if changes to the rules were foreseeable, then the financial loss from its reports on users spreading hate should have also been foreseeable.

This logic confused and frustrated the judge.

“That, of course, reduces foreseeability to one of the most vapid extensions of law I’ve ever heard,” Breyer said.

There are times, in a courtroom, where you shouldn’t read very much into things a judge says. And then there are times where it’s pretty clear the judge understands just how how wrong one side is. This is one of the latter cases.

According to a friend who attended the hearing (virtually, since it was on Zoom), these quotes don’t even get to how bad the hearing was for Elon. Apparently, at one point the judge asked ExTwitter’s lawyer “are you serious?” which is never a good thing. ExTwitter’s lawyer also had to walk back a few arguments in court, including when the company tried to apply the wrong terms of service to a separate non-profit they had tried to drag into the case. And, finally, towards the end of the hearing, apparently ExTwitter’s lawyer tried to claim that they had pled actual malice (which, you know, is kind of important), only to have CCDH’s lawyer point out that they had not. CCDH is right. You can look at the amended complaint yourself.

None of that is likely to go over well with this judge.

Enlarge (credit: NurPhoto / Contributor | NurPhoto)

It looks like Elon Musk may lose X's lawsuit against hate speech researchers who encouraged a major brand boycott after flagging ads appearing next to extremist content on X, the social media site formerly known as Twitter.

X is trying to argue that the Center for Countering Digital Hate (CCDH) violated the site's terms of service and illegally accessed non-public data to conduct its reporting, allegedly posing a security risk for X. The boycott, X alleged, cost the company tens of millions of dollars by spooking advertisers, while X contends that the CCDH's reporting is misleading and ads are rarely served on extremist content.

But at a hearing Thursday, US district judge Charles Breyer told the CCDH that he would consider dismissing X's lawsuit, repeatedly appearing to mock X's decision to file it in the first place.

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