Schmalfeldt Assists Alex Jones

Not directly, but quite ironically.

Let me explain.

I’ve been remiss in keeping up with my reporting on the Gilmore v. Jones, et al. defamation LOLsuit filed in the U. S. District Court in Charlottesville, Virginia. Brennan Gilmore took the cell phone video of a car ramming into a crowd of protestors in Charlottesville that was posted on Twitter. He is suing Alex Jones and others, claiming that their comments about him and his connection to the event he recorded were defamatory.

IANAL, but it seemed to me that the existing case law would lead the judge to dismiss the case. However, he denied most of the motions to dismiss, allowing the suit to go forward against most of the defendants. Because the judge’s ruling appears to be at odds with case law, the lawyers representing a group of defendants which includes Alex Jones have filed a motion seeking either reconsideration of the ruling or permission to file what is called an interlocutory appeal of that ruling. An appeal would allow the Fourth Circuit to rule on the matter before any significant time and resources are spent on discovery and, perhaps, a trial. Aaron Walker, the lawyer representing a second group of defendants, has filed brief supporting the Jones, et al. motion. (Disclosure: I work with Aaron as a paralegal on First-Amendment-related cases.) Two of the cases he cites in his brief are Schmalfeldt v. Grady, et al., No. 4:17-cv-01310 (D.S.C. 2017) and Schmalfeldt v. Johnson, et al., No. 15-CV-1516 (E.D. WI. 2016).

So it may be that Bill Schmalfeldt’s ineptly conducted pro se lawfare will provide support for the dismissal of a suit against Alex Jones.

Heh.

What I Saw In Court Yesterday

Here’s what I saw during the Gilmore v. Jones, et al. hearing on motions to dismiss at the U.S. District Court in Charlottesville, Virginia.

First of all, I saw Judge Moon from up close. At one point in his presentation, Aaron Walker  (representing Lee Stranahan, Jim Hoft, Scott Creighton, Michele Hickford, and Words-N-Ideas) was using a poster to clarify some of the points he was making. Because there wasn’t an easel in the courtroom, he asked me to hold it, and the judge asked me to bring right up to the bench. Judge Moon seemed to be familiar with the material in the written briefings from the Plaintiff and the three groups of defendants, and he engaged counsel from both sides with questions to clarify factual details. He did not ask many questions regarding the legal theories presented.

Andrew Grossman (representing Alex Jones. Lee Ann McAdoo, InfoWars, and Free Speech Systems) spoke first. He first attacked Gilmore’s claim that the court had jurisdiction over the defendants he represented. None are from Virginia. Because the only claims against them are based in state law, the requirements of the Virginia long arm statute must be met, and he noted that the Plaintiff has offered no evidence to support that assertion. Then he argued that, even if the court had jurisdiction over his clients, the things they were accused of saying or writing were expressions of opinion of the sort protected by the First Amendment and, thus, not actionable.

Aaron Walker went next. He made the same jurisdictional argument for his out-of-state clients. Then, he argued that the court lacked subject matter jurisdiction with respect to the case against Lee Stranahan. Stranahan and Gilmore are both residents of Virginia, and without a federal issue, a federal court doesn’t have jurisdictions over residents of the same state concerning a state law matter. The poster I held for the judge detailed the evidence for Stranahan’s residency in Virginia (extensive) versus Gilmore’s claim that Stranahan is resident of Texas (essentially non-existent). Initially, Gilmore had claimed that Stranahan had a Texas driver’s license, but his lawyers have backed off that claim when they were informed that Stranahan is legally blind. They now claim that Lee’s Texas voter registration was renewed in late 2017, but Stranahan has submitted two declarations relating to his Virginia residency, stating in one that he did not renew his registration and does not know how or even if it might have been renewed. Walker also argued that the remarks made by his clients concerning Gilmore were protected by the First Amendment and not actionable.

Brandon Bolling spoke for Allen West. He was brief and to the point. At the time the allegedly defamatory comments were published, the websites and social media accounts using West’s name were not under his control, and the Plaintiff has done nothing to show that West was in control of those sites. West had nothing to do with the remarks. If there is a case for defamation, it can’t be against someone who wasn’t involved. West should be dismissed from the case.

Two lawyers spoke on behalf of the Plaintiff. Andrew Mendrala of the Georgetown Law Civil Rights Clinic went first. He spent a good portion of his time on the issue of jurisdiction, and he made the statement that Stranahan had only submitted one declaration with respect his residency and that Stranahan had not dealt with the Plaintiff’s assertion that he was registered to vote in Texas. That was incorrect. During a recess, the error was pointed out to him, and he refused to correct the record.

Brianne Gorod of the Constitutional Accountability Center spoke for Gilmore as well. She asserted that the court did not need to consider the requirements of the Virginia long arm statute but should make a determination of personal jurisdiction based only on the limitations of due process imposed by the Fourteenth Amendment.

The three lawyers for the Defendants then offered their rebuttals. Here are the highlights: Grossman pointed out that the case law in the Fourth Circuit (Virginia is in the Fourth Circuit) required the court to apply the state’s long arm statute. Walker pointed out the misrepresentation by the Plaintiff with respect to the Stranahan declarations and cited their locations in the record. Bolling simply repeated the fact that Allen West didn’t say or publish what Gilmore claimed and that there was no evidence to support Gilmore’s claim.

The judge took the case under advisement, and we’re waiting for a ruling.

Stay tuned.

Gilmore v. Jones, et al. News

A hearing was held this morning before Judge Moon in the U.S. District Court for the District of Western Virginia in Charlottesville on motions to dismiss. The Defendants were represented by three legal teams. One represents Alex Jones. Lee Ann McAdoo, InfoWars, and Free Speech Systems. The Second represents Lee Stranahan, Jim Hoft, Scott Creighton, Michele Hickford, and Words-N-Ideas. The third team represents Allen West.  All three teams stress both the facts and the law related to the case.

The Plaintiff’s attorneys spent most of their time trying explain why the case should be left standing in spite of the facts and law.

The judge did not rule from the bench, so it will be a while before we know whether the case will go forward.

I’m blogging this brief summary from a Taco Bell in Charlottesville. I’ll post a more complete report when I get home.

Meanwhile, my podcasting partner Stacy McCain (who also attended the hearing) will be reporting his observations at The Other McCain.

Stay tuned.

Shoe Leather Journalism

My podcasting partner Stacy McCain and I plan to be in Charlottesville tomorrow to cover the motions hearing in the Gilmore v. Jones, et al. defamation LOLsuit. Brennan Gilmore, the person who made the cell phone video of a car ramming into a crowd and killing a woman during the Charlottesville riot, is suing Alex Jones and a random collection of bloggers, claiming that they are somehow responsible for alleged harassment done by third parties. While the hearing will deal with motions to dismiss, the judge has deferred consideration of the award of costs and attorneys’ fees pursuant to any applicable anti-SLAPP statutes and consideration of sanctions for now.

Contributions to our Shoe Leather Journalism Funds via the big yellow DONATE button at The Other McCain or the Tip Jar on the right are always greatly appreciated.

Gilmore v. Jones, et al. News

I have previously reported that several of the defendants in the Gilmore v. Jones, et al. case had filed a motion for sanctions against the plaintiff and his attorneys for violations of Rule 11 of the Federal Rules of Civil Procedure, that the plaintiff and his attorneys had filed a motion seeking to delay consideration of sanctions until after the 13 November hearing on motions to dismiss, and that defendants who file the sanctions motion have opposed any such delay. The court has denied the plaintiff’s motion seeking the delay and has ordered that briefing for the sanctions motion go forward. The motion will be before the court on the 13th.

I plan to be in Charlottesville on the 13th to cover the hearing.

Stay tuned.

Gilmore v. Jones, et al. News

I reported earlier this week that several of the defendants in the Gilmore v. Jones, et al. lawsuit have filed a motion for sanctions against the plaintiff and his attorneys. Yesterday, Gilmore’s lawyers filed a motion seeking to delay consideration of that motion until after the motions hearing scheduled for 13 November.

Late last night, those defendants filed an opposition to the plaintiff’s motion.

I plan to be in Charlottesville on the 13th to cover the hearing which should deal with motions to dismiss and, depending how the judge rules on the plaintiff’s motion, Rule 11 sanctions.

Gilmore v. Jones, et al. News

A group of the defendants in the Gilmore v. Jones, et al. lawsuit has filed a motion seeking sanctions against the plaintiff and his attorneys for violations of Rule 11 of the Federal Rules of Civil Procedure. Here is a copy of their brief in support of that motion.

The Gentle Reader should note that this motion and brief were served on the plaintiff and his attorneys over three weeks ago, and they were not filed with the court until the plaintiff refused to correct the deficiencies alleged in the brief.

Gilmore v. Jones, et al. News

The defendants have filed their replies to Gilmore’s opposition to their motions to dismiss. Here is Allen West’s.

Here is the reply from Jones, Infowars, Free Speech Systems, and McAdoo.

Here is the reply from Hoft, Stranahan, Creighton, Wilburn, Hickford, and Words-N-Ideas.

A common theme among the defendants’ replies seems to be “Look, we have made evidence-based attacks on Gilmore’s assertion that the Court has jurisdiction which he did not bother to answer.”

Hoft, Stranahan, Creighton, Wilburn, Hickford, and Words-N-Ideas also filed an opposition to the amicus brief submitted by the First Amendment and Media Law “Scholars.”

The court has scheduled a hearing on the motions to dismiss for 10 am on 13 November.

Stay tuned.

Gilmore v. Jones, et al. News

A group of parents of children who were murdered at the Sandy Hook Elementary School are suing Alex Jones for defamation. They sought leave to file an amicus brief in the Gilmore v. Jones, et al. LOLsuit which did not appear to have any purpose other than to bad mouth Alex Jones. They offered no facts or law related to the Gilmore case. Judge Moon has declined to let the brief onto the case docket.

More Gilmore v. Jones, et al. News

Some of the parents of children who were killed during the Sandy Hook Elementary School mass shooting are suing Alex Jones for statements they allege are defamatory. Those plaintiffs are seeking to file an amicus brief in the Gilmore case.

IANAL, but when I read the proposed brief, I could not figure out what legitimate connection it had to the Gilmore case. Two of the defense lawyers agree with me.

Alex Jones may be a jerk who makes over-the-top comments, and these parents may have a valid case against him, but their alleged claims are separate from Gilmore’s alleged claims. As Aaron Walker writes,

The Undersigned Defendants recognize that the proposed amici have suffered a devastating personal loss. A parent should never have to bury his or her children, and one suspects that only those who have had to do so can imagine the pain the amici feel. However, their real pain does not entitle them to file an amicus in a case where they have nothing useful to offer this Court.

I’ll also note that these plaintiffs from Connecticut seem to have a proper grasp of personal jurisdiction and are suing Jones in Texas rather that in their home state as Gilmore is attempting.

Gilmore v. Jones, et al. News

Defendants Hoft, Stranahan, Wilburn, Hickford, and Word-N-Ideas have filed a brief in reply to the amicus brief filed on behalf of “legal scholars” which suggested that the court should have personal jurisdiction over the defendants.

Full Disclosure: Exhibit A is my declaration as an expert witness on behalf of these defendants.

Another Amicus Brief in Gilmore v. Jones, et al.

Another group of law professors has filed a second brief in support of the plaintiff’s amended complaint in Brennan Gilmore’s defamation lawsuit. They seek to convince the court that Gilmore has properly pleaded a defamation case and that quashes any protection the defendants’ might enjoy under the First Amendment.

IANAL, but at first glance, this brief does appear to do a better job of pleading a defamation case that Gilmore’s amended complaint did. I’m not sure how that helps Gilmore’s case.

UPDATE—The judge has issued an oral order granting the motions to file the two amicus briefs.

Gilmore v. Jones, et al. News

Brennan Gilmore’s opposition to the motions to dismiss his amended complaint was due yesterday, and it was filed on time. Here’s a redacted copy. I have not included the exhibits because they would have to be heavily redacted.

A group of “legal scholars” is seeking to file an amicus brief on behalf of the plaintiff. They argue that existing case law should allow the court to exercise personal jurisdiction over the defendants.

IANAL, but the case law that seems most on point is a case the “scholars” attack: Young v. New Haven Advocate. Young was a similar personal jurisdiction case which also originated in the Western District of Virginia. In that case, the District Court ruled that Virginia’s Long Arm Statute applied to out-of-state defendants in a defamation suit, and the ruling was reversed by the Fourth Circuit Court of Appeals.

The “scholars” seem to be arguing that because the New Haven Advocate is a local Connecticut newspaper with no (or trivial) circulation in Virginia and Infowars is an Internet website which can be viewed in Virginia, the facts of Young and Gilmore are sufficiently different so that Young should not apply. But if I read the Young decision by the District Court correctly, personal jurisdiction in that case was based on the publication of the alleged defamation on the newspaper’s website. That strikes me as essentially similar facts.

We’ll see if the court accepts the amicus brief and if it agrees with the amici.

UPDATE—The jurisdictional claims in Gilmore don’t seem to be all that different from Young.

This court concludes that the exercise of personal jurisdiction over these defendants is proper under Code of Virginia § 8.01-328(A)(3), as the defendants’ Connecticut-based Internet activities constituted an act leading to an injury to the plaintiff in Virginia. Likewise, this court holds that the defendants’ Internet activities are sufficient to satisfy the requirements of constitutional due process.

Young v. New Haven Advocate, 184 F. Supp. 2d 498, 511 (W.D.Va. 2001)

The “scholars” do not appear to have done their homework.

Gilmore v. Jones, et al. LOLsuit News

The last of the defendants has filed his motion to dismiss.

IANAL, but it seems to me that this LOLsuit should be dead based on the lack of diversity between Brennan Gilmore and Lee Stranahan—unless Gilmore can find some way to prove that Lee really doesn’t live in Virginia. That’s a shame, because it gives the court a way to dismiss the case without having to get to the question of Gilmore’s apparent failure to state a claim upon which relief can be granted. Dismissal for failure to state a claim is with prejudice and kills the suit’s claims. Dismissals for lack of jurisdiction is usually without prejudice which allows the claims to be filed in a suit or suits in the appropriate forum(s).

Gilmore’s consolidated response to the motions to dismiss are due on 19 June.

Stay tuned.

Bonus I’m Not Making This Up, You Know

In an apparent rush to prove that they have failed to do their due diligence for their client’s case, the lawyers representing Brennan Gilmore in the Gilmore v. Jones, et al. LOLsuit filed this—

They’ve alleged that Lee Stranahan has a Texas Driver’s License and state in footnote 1 that he hasn’t denied having one. Lee is legally blind. He doesn’t have a driver’s license.

Almost every lawyer that I’ve discussed this case with views the behavior of Gilmore’s lawyers, especially their lack of due diligence, as sanctionable.