Wednesday, February 19, 2014

tiara for Ps, tee-are-oh for Ds



STATE OF NEUWESTIA
NEUWESTIA DISTRICT COURT
MEMORANDUM AND ORDER



Gays R Heroes, LLC vs. Universal Non-Stick Formula and Harold Caidagh
Docket No. 2014-01485


February 18, 2014

Lewis S. Lyspe, Esq.
Butz, Cox & Dynia P.C.
2697 Peter Aste Way
Rimmington, Neuwestia 50196
Attorneys for Plaintiff

Chester B. Redweld, Esq.
Law Offices of Chester B. Redweld
5291 Scheperdeis Court
McBoulder, Neuwestia 50189
Attorney for Defendants


Dear Counsel:

This letter memorandum and order contains the Court's decision and rationale concerning the initial Temporary Restraining Order requested by Plaintiff, Gays R Heroes, LLC's in the same filing as Plaintiff's Complaint. For the reasons set forth below, the Court grants the Temporary Restraining Order sought by Plaintiff, but amended as described in this Memorandum's discussion below.

Facts

Plaintiff Gays R Heroes, LLC is a lobbying and advocacy organization whose charter states its mission as:

to advance, and advocate for, the notion of granting to all gay, lesbian, bisexual, transgender, cross-dressing, gender-confused, sexuality-ambivalent Americans the same rights and advantages enjoyed by heterosexual Americans.

See Plaintiff's Brief in Support of Temporary Restraining Order, p. 6.

On or about June 6, 2009, one or more members of Plaintiff's collective found themselves browsing the internet and specifically landing on the URL address, http://www.pezcandy.blogspot.com.  One such member of Plaintiff's collective, a Mr. Serge Spoogian, decided to bookmark that URL and return at a later date.  On some unspecified date thereafter, but no later than July 4, 2009, Mr. Spoogian forwarded the URL address to a Mr. Byggr Klyvlen Stiemer, the Public Affairs Coordinator at Plaintiff's place of business.

On or shortly after July 5, 2009, Mr. Stiemer sent a Company Alert email to the entirety of Plaintiff's membership, notifying them of Trigger Alerts regarding the website found at the URL.*1

As described in the Company Alert:
Please be advised that the website found at http://www.pezcandy.blogspot.com is hereby officially recognized as warranting Trigger Alert cautions for our Membership.  Our review of the website found numerous insensitive remarks suggesting a homophobic, misogynistic, bigoted, reactionary and, very likely, Republican authorial perspective which manifests itself callously and with little to no regard for its readership's individual trigger points and other possible dangers leading to a potential self-harm episode for one or more of our Members.
Thereafter, Mr Steimer claims, he made weekly visits to the URL to check on whether the Trigger Alert could or should be lifted.  At no point did he find a reason to lift the Trigger Alert and, according to Mr Steimer's affidavit, the Trigger Alert remains active today.

In its application for a Temporary Restraining Order, Plaintiff requested that the Court visit the URL and review the materials published there.  Plaintiff suggested that it should take "no more than ten or fifteen minutes of reading" to determine that the materials published at the URL were not only offensive, but rose to the level of infringing the civil rights and liberties of Plaintiff's various members.

The Court's review of the URL and the materials located within gave sufficient reason for issuance of a Temporary Restraining Order.  The Court found numerous instances of homophobia, misogyny, racial bigotry, religious bigotry, and incitements toward violent implementation of the aforementioned negative social behaviors.

For example, the Court found at least 78 references to "fucking whacked out feminists," at least 35 derogatory references to gay men as "pomeranians nipping at [the author's] heels," at least 7 derisive references to "fellators," and at least 24 references to "Zion = Death."  There were also at least 17 open appeals toward anarchism, and 18 enticements to engage in "rock 'em sock 'em robots."

It is possible that with more time spent reviewing the site more closely, these numbers could increase by significant amounts.

Standard of Review

In an application for a Temporary Restraining Order, Plaintiff must show (1) the possibility of irreparable harm to Plaintiff and/or its membership, (2) caused directly by Defendant's activity, (3) with Defendant refusing to curtail such activity when requested, and (4) the irreparable harm to Plaintiff(s) cannot be remedied by payment of money damages.  Tiezer v. Kochauld, 341 Neu. App. 118, 125 (2003).

Ex parte considerations of a Plaintiff's request for Temporary Restraining Order are available only when Plaintiff shows (1) egregious repeated harmful conduct by Defendant, (2) numerous attempts to obtain Defendant's agreement to reduce and/or cease the harmful conduct, (3) notice to Defendant of Plaintiff's intent to seek a T.R.O. was given at least 48 hours before the application was made, and (4) Defendant fails to respond to Plaintiff's notice of intent and does not file responsive papers with the Court.  Drei Karte Monte, Inc. v.  Steugezenmarx, 356 Neu. App. 492, 508 (2006).

In the present matter, Plaintiff contends that it notified Defendants on at least 635 occasions, via comments left after blog posts and via emails sent to the blog operator, of its request to have Defendants work toward minimizing and, eventually, eliminating the various Trigger Points regularly found in Defendants' web content.  See Stiemer Aff. at pp. 5-16.  Plaintiff further asserts that it gave Defendants advance notice of 5 business days before filing its Complaint and Motion for Temporary Restraining Order, yet heard no response from Defendants at any time.  Id. at 17.

The Court did not hear from Defendants nor their counsel at any point prior to the issuance of this Memorandum and Order.  No opposition papers were filed regarding the present T.R.O.  No response to the Complaint was filed.  Thus, the Court proceeded as an ex parte matter.

Issues, Analysis and Decision

Plaintiff asserts that Defendants' website content creates a living, perpetual incitement for readers to initiate violence against Plaintiff's membership, consistently defames Plaintiff's membership, and repeatedly encourages readers to organize for the purpose of oppressing Plaintiff's members and denying them the civil liberties and rights to which they are entitled.*2

The Court agrees.

Neuwestia law allows free speech with a broad scope of protection for speech, in order to enable a vigorous public debate and vibrant public policy discussion on all matters that capture the imagination and attention of Neuwestia's citizens.

However, there are limits to such speech.  One such recognized limit is that which is imposed when a citizen's speech encourages violent action.  In the landmark case of IMO Video Activity of Chris Crocker d/b/a Tarzie, 396 Neu. App. 1, 47 (2012), we held:

Plaintiffs here, a collective of gossip columnists and twitter commenters, contend that they are entitled to say whatever they like about Britney S__________, because Ms. S is a public figure and therefore not entitled to protection from defamation laws.  What Plaintiffs fail to note, however, is the destructive emotional impact upon Chris Crocker, d/b/a Tarzie, as demonstrated by the heartfelt video that Crocker produced and published here.  The propensity for Crocker, d/b/a Tarzie, to engage in self-harming, self-mutilation, or suicide as a result of exposure to Plaintiffs' gossip and snark regarding Ms. S, means that Plaintiffs cannot avail themselves of the normally extant defamation shield which is operative when the subject is a public figure.  Reversed.

The Court finds the Crocker d/b/a Tarzie opinion and reasoning dispositive here.  Defendants here are not entitled to any form of shielding from the ramifications of their provocative conduct on the blog here at issue.  The Court therefore GRANTS the Temporary Restraining Order sought by Plaintiff.  A copy of the Order is attached hereto as Appendix A.

So say we all.

STATE OF NEUWESTIA
NEUWESTIA DISTRICT COURT

/S/

______________________________
Hon. Manus Rist Flappe, Neuwestia District Judge


_________________________________

*1 "Trigger Alert," as defined by Mr. Stiemer in his February 9, 2014 Affidavit, is "a sensitivity warning given to Plaintiff's members regarding various materials found within American culture which are deemed to be potential triggers of negative or counter-productive psychological and emotional reactions, with the capacity to influence certain sensitive persons toward suicidal ideation."  See Stiemer Aff. at p. 4.

*2 Plaintiff also asserts that the content of Defendants' blog is objectionable because it is likely favorable toward, and endorsed by, the Republican Party and its membership.  While the Court fully understands Plaintiff's argument, it does not accept the assertion that these quasi-Republican traits are actionable under the laws of Neuwestia.  See, e.g., Lindsay's Log Cabin v. The Fabulous Poodles, 348 Neu. App. 274, 279 (2004).

11 comments:

Chet Redweld said...

I like how neither the Judge, nor his law clerk, nor the typist caught the typo of "LLC's" in the first sentence.

This is top-flight jurisprudence.

What I like more than the typo is the fact that the decision was rendered upon the idea that Defendants hadn't objected or responded, yet the Judge had my name, address, and status as Defendants' counsel in his records. If I never gave him an appearance as counsel for Defendants, how did he know to send the memo opinion and order to me? And if he know to send that stuff to me, why didn't he let me know the Plaintiffs had a TRO pending to which I may like to respond?

Justice in Neuwestia depends largely on party politics and having a good time at a Key Party.

Priscilla Houle-Eaton said...

This was a good decision. So far I've got half my wish and am hoping to be made whole.

Don't be jealous, Redweld. It's obvious Lyspe is a better lawyer than you.

Chet Redweld said...

Yes, proceeding ex parte while knowing who represents your adversary, that's definitely "good lawyering" and not unethical.

Thank you for that comment, Ms Houle-Eaton. Commentary like yours helps my client understand the immorality and unethical practices of our adversaries here.

Legal Pedantry Blowhard said...

What happened to the requirement of likely success on the merits? I'm not aware of any TRO or other ethical remedy involving restraint where the party seeking restraints doesn't have to show likely success on the merits.

I bet you never even went to law school. You probably spent a month working as a mail room clerk at a law firm, and think that gives you the same insights as a practicing lawyer.

Priscilla Houle-Eaton said...

It's really quite obvious that he's nowhere near the caliber of lawyer that Lewis Lyspe is. Lyspe reminds me of Glenn Greenwald.

Lewis S. Lyspe, Esq. said...

JELLY!

Prof. Corey Robin, Leading Expert said...

I told you that this would be a grand slam victory for Plaintiff. Thanks to my invaluable expert perspectives, they won the first round with a knockout punch. By the time I finish comparing Defendants to Sarah Palin and Mitt Romney, they'll be dead in the water.

This is what happens when you are a Reactionary.

Chet Redweld said...

Professor Robin, I would like to invite you to ensure your Tegretol prescription is at the proper dosage, and is filled with a new batch, on or before March 7, 2014.

That's the date on which I'll be taking your deposition.

Prof. Corey Robin, Leading Expert said...

I don't take Tegretol. I don't suffer from bipolar disorder. I've never been treated for any mental health infirmity or psychological issue.

Besides, you have no right to access my medical treatment records. I'm not a party to this case.

Chet Redweld said...

You may want to talk with Mr Lyspe about those assumptions you just made, Professor.

The Notice of Deposition regarding your expert testimony will include a Subpoena Duces Tecum requiring you to produce evidence of your academic and professional accomplishments, as well as your medical records -- in order to verify that your expertise is not going to be tainted by any organic or psychological health issue.

But don't take my word for it. I'm not your lawyer. Ask Mr Lyspe.

Chet Redweld said...

What happened to the requirement of likely success on the merits? I'm not aware of any TRO or other ethical remedy involving restraint where the party seeking restraints doesn't have to show likely success on the merits.

Perhaps you should spend more time researching Neuwestia case law, and less time generalizing about matters on which you seem ill informed.