AS280: Richard Carrier's Lawsuit, with Andrew Torrez

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:28 Thomas: Hello and welcome to Atheistically Speaking. This is episode 280, nice round number, and I'm your host Thomas Smith. Alright, got an interesting one for you today. I think a lot of you, no doubt, have heard that Dr. Richard Carrier, someone who I've had on the show before, someone who was actually going to come on the show to talk about Jesus mythicism, but now it doesn't look like that would really be appropriate. We'll see. He's going through some legal battles. He has sued several people for Defamation. Now, I don't really want to get into the details of this, but just so that everybody's on the same page, I'm going to read PZ Myers's small post.

Very, very short, a couple paragraphs. One of our writers, Richard Carrier, has been banned from Skepticon for his repeated boundary-pushing behavior. This is obviously a serious accusation, and we've been investigating further. We now have several firsthand reports of persistent, obnoxious sexual behavior in defiance of specific requests that he cease. We believe his accusers. Again, I'm just reading PZ Myers's post here on Freethought Blogs. I will link it. Here at Freethought Blogs, we are sex positive, but we are also committed to the principle of consensual sexual behavior. We go further and beyond demanding

0:01:49 Thomas: That there always be consent. We also insist on respect for your partners. No no means no, not just because it's held as a dogmatic rule, but because it reflects a sincere appreciation of the autonomy of other people. We cannot tolerate violations of this essential principle. While Dr. Carrier has been a valued contributor to this network, we have to demand support of that principle in actions as well as words. After a review of the evidence so far, Richard Carrier's posting privileges have been suspended pending further evaluation, evaluation and all comments on his blog have been closed. If you wish to make a testimonial pro or con about Dr. Carrier, you can send them to me.

There's a link in confidence. We will consider all the evidence before making final decision on his case. We also support Skepticon and their commitment to equality and justice if you do to donate. So that's the entire post, post in its entirety. Again, I don't know the details. I don't want to speculate, but just so we know the facts of the case at hand, he was banned, apparently accused of boundary-pushing behavior of some kind or another. Now, I thought this was interesting for many reasons. First off, like I said, Richard Carrier has launched a lawsuit. The lawsuit is defamation. This involves First Amendment stuff. I think that is a perfect thing to ask an expert lawyer.

0:03:11 Thomas: I happen to know one by the name of Andrew Torrez, Harvard Law graduate. I thought I would get to the bottom of what cases like these mean, what normally happens, what's okay to say, what isn't okay to say. And that's info that I think is good in general anyway, even regardless of this, because I'm very interested in free speech, it's a very important value in my mind, and I know a lot of you agree with me, but there are limits to free speech and this is an interesting case to see what those limits are, what's going on here, so I'm having Andrew on to tell us more about the details, the legal details of cases like these.

In addition to that, I think a lot of you will likely care, being most likely atheists, will care about Richard Carrier, or maybe situations like these, where this case might go, is likely to go, and and the people involved. If not Dr. Carrier, you may care about somebody he has sued in this lawsuit. So I think it's important to the community, and I think this will be a good chance to learn a lot about the legal ramifications and also discuss a bit about the specifics of this case. I reached out to Dr. Carrier and invited him to come on to answer questions himself. He declined. That's okay. Makes sense. You

0:04:31 Thomas: Know, pending litigation, I understand you don't want to comment, but I just wanted to put that out there. I definitely reached out him. He said he would be interested to hear the audio, so I will send this to him. But certainly no harm, no foul there if he didn't want to come on. But having said that, I still would really like to know about the legal details and ramifications of this thing. So we're going to go over to my legal expert, my podcast partner over on Opening Arguments, Andrew Torrez. Quick side note. If you haven't checked out Opening Arguments, definitely do so. Andrew just did an excellent, excellent episode on Monday. It was actually an extra episode on Hillary's email scandal.

He actually went through all the case law to an extent that we don't know if anyone else has done on a podcast. We'll just say they haven't. We're going to guess that they haven't. And he broke it down for us, makes it really, really easy to win your next argument with your family, with your conservative Trump Trump-supporting family over this. So definitely check out Opening Arguments. Again, I just want to hand it to Andrew on that last episode about Hillary's emails. He really put the time and effort in, read every case involved with With this statute, and it's such useful information, so take advantage of that podcast. It is a resource for me. I'm so happy to be a

0:05:51 Thomas: Part of it. Andrew Torrez, to talk about the specifics of of the Carrier case.

[0:06:08] So anything I say here, I am commenting on this for entertainment general informational purposes only. This is not intended to create a legal relationship or constitute legal advice. Don't take legal advice from a podcast. This lawsuit was filed on September 20th in federal court. Here's the way I read a complaint when it comes across my desk. The first thing I do is I scroll down to the bottom. So this lawsuit is linked at the Friendly Atheist article. And by the way, this is one of my favorite parts of OA, opening arguments, because Andrew has taught us how to read several legal documents and it's not as scary as it might seem. He can give

[0:06:50] you tips and tricks to be able to actually read these things. And I would do that. Like, I would click through. If you enjoy – I know nobody enjoys reading legal documents but me. But, you know, if you follow Hollywood stories and like so-and-so sued so-and-so and you read the characterization of that, reading the complaint is always a little better. Yeah, and it's public, right? I mean, this is all publicly available. You can go find it. That's right. Right. And usually, if you click through to enough links, you will find, you know, the first news outlet that covers when a lawsuit is filed will link to a copy of the complaint. And so what do you do when you get a complaint? And so, you know, particularly

[0:07:31] in the celebrity world, you know, there may be dozens of pages of just, you know, scurrilous accusations and like all sorts of salacious details and everything. And, you know, you can get caught reading the story, but the first thing you want to do is you want to figure out what all of those details, which is going to be the first two-thirds, three-quarters, four-fifths, you want to figure out what all of those details are meant to serve, right? Like, what are those facts trying to fit what pattern? And what you do is you flip through the pages until you find the text that says, count one. Okay. And here,

[0:08:11] this is on page 26 of 35. So again, you could do the math. The first four-fifths are all various allegations and facts. And then we get to count one, which is defamation per se. Okay. Now that tells us what this first cause of action is. It's for defamation. You might say, what does it mean and why does it say per se? And the reason there has to do with the particular type of defamation that is being alleged. So what is defamation? Defamation is a tort, which means that it is a civil wrong committed between individuals. It covers both libel

[0:08:51] and slander, which is a – libel is a written statement of defamation. Slander is a spoken statement of defamation. They both follow the same law, and the elements of a defamation claim are, number one, that you must have a communication that is defamatory, that is, one that is tending to expose a person to public scorn, hatred, contempt, or ridicule. Number two, that statement must be published. And the notion of publication, if you think about, you know, this encompasses slander. So, you know, slander is spoken aloud in front of somebody else,

[0:09:31] Right? Published in some way, disseminated to, and all it really requires is that it's disseminated to a third person. Number three, the statement must be provably false. Okay. Number four, you must have fault in some way on the part of the defendant. And we're going to talk about that in a minute, because that standard changes based on whether the person you're suing is a public figure or a private figure. And number five, the statement has to cause harm to someone else. All right. So, defamation per se is a subcategory of defamation that

[0:10:11] answers a little bit of the elements from items numbers one and five, which is to say there are some statements that are considered so egregious that they are defamatory per se. Say that in other words, you don't have to prove that they defame a person, we can infer that they defame a person, right? So, for example, right, like if you said, um, Eli Bosnick is a comic collecting geek who, you know, hoards tens of thousands of of comic books. True, right? True. In addition to it not being provably

[0:10:51] false, uh, one of the things you could argue is, hey, look, like in his community. Like calling him a comic book geek is a term of endearment, right? Like that doesn't lower anyone's opinion of him in any way whatsoever. So, you know, it's not clear that just saying, oh, haha, he likes comic books, is really even an insult, because you'd be like, yeah, I love comic books. But when you have a statement that is defamatory per se, the typical categories of that are when you insinuate that someone has committed a criminal offense, that they have – and this is the way the case law says it, so don't blame me that they have a, quote, loathsome disease.

[0:11:32] I think you might be able to infer what the court is trying to avoid saying there, that they have a condition that is incompatible with their business, trade, profession, or office, or that they are guilty of serious sexual misconduct, okay? Okay. And that is the typical categories of defamation per se. We're going to see that this case was filed in Ohio. Ohio has a more broad category. They have a case that says defamation per se is any statement that reflects upon the character of the plaintiff by bringing him into ridicule, hatred, or contempt, or affects him injuriously in his trade or

[0:12:12] profession. And so I would say, as we start thinking about the merits of the lawsuit, defamation per se means if you accuse somebody of a crime or of sexual misconduct or wrongdoing. Which seems to be happening here, right? Yeah. And as you read these paragraphs, it says, defendant's demonstrably false statements without privilege, individually and collectively impute to the plaintiff serious criminal offenses involving moral turpitude. So that's what defamation per se means. Count two, then, we move to is another count of defamation per se. This one has a slightly expanded

[0:12:52] allegation that says the statements injured the plaintiff's reputation within his business and professional circles in Ohio and in the community at large, and have adversely affected the plaintiff's scholarly credibility and opportunities for teaching, writing, speaking, book sales, etc. Okay. Same allegation. Count three is tortious interference with a business expectancy. And this tort is sometimes called with future tortious interference, with future business relations. It's sometimes shortened just to tortious interference. But it works like this. Suppose, Thomas, that you have an existing

[0:13:33] sales agreement whereby you are supplying apples to Company A of the Amalgamated Apple Corporation, right? And you're selling them for a dollar an apple, right? And you have a 10-year contract. And I come by and I say, I want you to break that contract and stop selling apples to the Amalgamated Apple Corporation and start selling them to me, and I'll pay you $1.25. Under normal contract law, in which contract law imputes sort of no moral wrongdoing to anybody, it just says you've broken the contract, so we're going to give the person with whom you broke the contract the benefit of the bargain.

[0:14:13] But you don't get additional damages on top of that. Do you just get whatever's outlined in the original contract for breaking it? Right. So you could imagine that it would be worth your, it would be in your interest to break the contract. Yeah, if you make it worth my while, if you're going to pay me enough for apples, Andrew Torrez. And so what tortious interference does, that's a tort, that allows the Amalgamated Apple Company to not only sue you for breach of contract, but they can sue me for tortious interference, because what I have done is I have tortiously interfered with your existing contract with the Amalgamated. So just for trying to get them to cancel it, or me to cancel it, or whatever, right?

[0:14:53] Okay, so when you know, if somebody says, I was thinking it would have to involve like some sort of lies or something, I, because when we're, because maybe I was uh mixing it up with the with the rest of the case, which is slander and all that. But it it's even just saying

[0:15:07] Like, hey, hey, just get out of this contract, I'll pay you more or something. Yeah, right. Oh, okay. So that is the main tort of tortious interference. Some states, and Ohio, I believe, is one of them, recognize not only tortiously interfering with existing business relations, which is the example that I just gave you, but also tortiously interfering with future business relations. Obviously, that's a lot more speculative. But think about the scenario in which you have a startup software company and you are fulfilling your orders, and I am your competitor. And what I do is jam up

[0:15:47] your phone lines and cut your internet and whatever. Right. And as a result, your startup company fails to fulfill the orders. Everybody cancels. You miss the holiday season. You lose out on a ton of business. You could imagine a court going, you could imagine putting on the evidence and I have actually done this in a previous case, putting on the evidence that says, hey, look, if we had they directly cost us $150,000 in contracts. But we were also growing before this happened. And this wrongful action reasonably cost us our expectation that we would be doing a million dollars in business by now. And we want

[0:16:27] to recover the million dollars. Now again, you would have elements of how do you prove that, what kind of certainty. So does that maybe explain, because a lot of people saw the dollar figures that have been made public in this lawsuit. And does that maybe explain that

[0:16:44] thinking, like why those dollar figures might seem high? Yeah, no, it actually doesn't. Oh, okay. Uh -oh. We'll see then. That interference with prospective business relations is, it can be a tough, it can be a tough tort to prove, but it is a valid cause of action. Okay. Count four is intentional infliction of emotional distress. And that tort came about as an extension of torts of violence. Okay. So for example - When you say came about, do you mean in our legal system or in this case? In our legal system, yes. Right. So for

[0:17:24] Example, you would be able to sue me for assault if I came up and attacked you and and beat you bloody and senseless, right? For a while, if I came up and let's imagine that we're in my office and I've cornered you in my office and I slam my fist against the wall like inches away from your head and I'm screaming at you at the top of my lungs and I'm belittling you, but I haven't physically hit you yet, right? But I've terrified the hell out of you and - You're a terrifying man. Let's face it. Some of our hypotheticals

[0:18:04] are more realistic than others. And so what I do is just impose my physical will upon you without physically assaulting you. And I do so in a way that is outrageous and likely injurious and everything else. This is kind of like an extension of something we talked about a couple of episodes ago in opening arguments. The difference between attempted murder and murder is competence. So the idea was, should we really let – I've done – the act I've committed is sort of just as heinous as the act of actually

[0:18:45] beating you senseless. I just, you know, stopped short of beating you senseless. And doesn't it make sense that you should be able to sue if you have actual, you know, medical losses and, you know, therapy bills and the like? I mean, doesn't it make sense to think that you should be able to sue me for that as well? And that is the typical, you know, the paradigmatic case of intentional infliction of emotional distress. Well, yeah, that's interesting because that seems quite a bit different than what what we're talking about here, but does it get applied in these cases normally? It almost never gets applied in defamation cases.

[0:19:25] And the reason is because the elements of the tort of intentional infliction of emotional distress are that you have intentional conduct, that the conduct be extreme and outrageous, that there be a causal connection between that and the the distress suffered by the plaintiff, and that that conduct causes distress of a severe nature. So it's very, very difficult to think about cases that fit that mold. The only one that I can think of in a defamation context was the rather famous Falwell versus Flint case that That was the

[0:20:05] basis for The People vs. Larry Flint, if you saw that movie. Oh, I didn't, but I've heard of it. Yeah. Well, so what happened was in the mid-1980s, Hustler Magazine put out a parody ad. And at the time, there still is a lovely, bitter aperitif called Campari. Campari and they were trying to sell it, uh, to, to market it to, uh, to women. I don't really know why. I mean, it's kind of a like bartender ingredient now, but Campari was trying to market it as a beverage for people to just drink.

[0:20:45] Um, this was not a particularly successful ad campaign.

[0:20:50] And Campari's ad campaign was Campari talks to X about their first time, right? And this was, you know, late 1970s, early 1980s. So, you know, that was like risque and it would be in the pages of, you know, Cosmopolitan and whatever as these one and two page splash ads of, you know, Campari talks to Billy Dee Williams about his first time. And all of the answers would be, Billy Dee Williams is awesome. He probably never did the Campari because he was too busy doing the Colt 45 ads, which were amazing. And all of the answers would be what counts for sexual innuendo at a time in which Three's Company was considered high comedy, but

[0:21:30] was really talking about the first time he drank Campari, she drank Campari, right? So that's the ad. Hustler decided to do a parody of that ad in which they talked to Jerry Falwell, leader of the Moral Majority, founder of Liberty University, about his first time, however, explicitly being his first sexual experience. And the ad insinuated that his first time was drunkenly with his mother in an outhouse after they had kicked out the goat. I think I've got those details correct. And most people know this as a defamation case because it established the absolute

[0:22:12] defense of the right of parity. But what a lot of people don't know is that the Falwell v. Flint case, the lower courts actually did not find in Falwell's favor on the defamation counts, but actually found that the Hustler parody ad was not defamatory because nobody could have taken it seriously that he had copulated with his mother in an outhouse after kicking out the goat. But they did find on the intentional infliction of emotional distress claim. And the Supreme Court essentially essentially said, no, that's not going to count as conduct that's extreme and outrageous

[0:22:52] when directed at a celebrity. And so they overturned on everything. And that is what just sort of jumps to mind when I think about the intersection of defamation and intentional infliction of emotional distress. That is not to suggest that garden variety defamation cases couldn't also be IIED cases. They could be. Would it happen more often that maybe the defamation part holds up in court, but they say, you know what, this isn't extreme, emotional, whatever the wording legalese you

[0:23:25] used was? And the way in which I think that would come about would be if you were defaming a private person. And that is, I had said we were going to sort of pass lightly over the fourth element, the fault prong. But the standards are very, very different when you defame a private person versus defaming a public figure. And this is a well -known case called New York Times versus Sullivan that basically says if you are defaming a private figure, somebody who there's no public interest whatsoever and

[0:24:05] you're running around saying horrible stuff about them, They only have to prove that you committed negligence in order to be defamatory, right? So if you failed to exercise the proper standard of care, jumped to a conclusion and started telling everybody that, then that would be defamation against a private person. And so you see this in the business context sometimes. I'm surprised we don't see more of this in, you know, like Yelp reviews and the like, right? Because it's really, really easy to like, you know, sort of observe conduct, say a huge conclusion, like this place employs criminals and they don't care at all about their

[0:24:45] customers and run around it, you know, and somebody who owns a restaurant is not a public figure, right? They didn't put themselves out there for discussion. And that's really – the First Amendment is kind of the backdrop of all of this. Is whenever you punish somebody for speech, you have a potential First Amendment issue. And you want to sort of err on the edge of – I shouldn't say err on the edge of. The values that animate the First Amendment, I think, argue pretty strongly for as narrow a construction of anything that restricts speech as is possible that is nevertheless consistent with protecting

[0:25:25] the ordinary rights of average people. Right. I think we've talked about it a bit before that the, I would say, is it safe to say the standard of evidence is pretty high? Like the bar is pretty high when it comes to cases like this. Is that fair to say? I mean, in this country, the truth pretty much protects you from this. And not only that, it sounds like even if, what someone was saying about me or something wasn't true, it sounds like even then, the bar tends to be pretty high in these cases. Am I wrong? Yeah,

[0:25:57] yeah, that's right. So under the New York Times v. Sullivan standard, private individual, private person, negligence standard. Public figure – Oh, public – oh, that's the key. Okay. There have been lots of cases that are litigated on what constitutes a public figure, but the public figure standard is what's called actual malice. And that does not quite mean what you would think of. Like when you think malice, you think hatred, I'm coming at you with a knife. But what that really means is that means either knowing falsity or reckless disregard as to the truth or falsity of a statement. Right.

0:26:36 Thomas: And I think those words were used, right? In this case? Yes, yes, yes, yes.

[0:26:40] Absolutely. Let me just ask you straight up, just so there's no confusion. Richard Carrier, in this case, public person in this regard. Yeah, I think not only is that my view, I think that's the way this complaint is pled. Okay, so they didn't even - This complaint is pled acknowledging that Richard Carrier is a public figure. And in fact, if you look through the allegations that discuss the potential damages, let me find the appropriate paragraph here. If you scroll back to page six, starting at paragraph 19, you have as part of the allegations in the statement of facts, and this is Dr. Carrier alleging this about himself, right? Through and as

[0:27:21] a result of his accomplishments in a career spanning more than a decade, Dr. Carrier has become well -known to the public throughout the United States as a professional writer, lecturer, and teacher, and has created for himself a unique public personality and image, and his image, likeness, and public personality have become commercially valuable commodities. And then as you continue to read through, he has to make that allegation in order to allege that he's been harmed, that that reputation has been damaged, but that his aspect of defining that damage is in and of itself, I think, an admission and an understanding that he's a public figure. Okay, yeah, yeah, that makes sense. And I should add,

[0:28:01] public figure gets defined on a case -by -case basis, right? Right. So there's a doctrine of the limited public figure, for example. So a blogger in the atheist community is not a public figure like Kim Kardashian is a public figure. But in terms of being sued by other atheists or suing other atheists, he is a public figure within that community. Right. Sort of context dependent. Exactly. Again, remember that the animating principle behind this is the First Amendment. And so the question is, is this somebody whom it's reasonable to think that there

[0:28:41] is a First Amendment value in discussing, in encouraging open and public debate about, right? That's not a test that's put forth. I want to be very, very clear. I know we have lawyers who listen. That's not the test that the court uses, but that's kind of what's going on in the background in separating out this doctrine, right? Right? Because the reason why you want to prohibit defamation is really simple, right? We don't want people going around telling malicious lies about people that hurt them. But the reason why you'd want to scale that back is we don't want to have to chill people from talking about legitimately interesting subjects of political, social, philosophical debate. And

[0:29:21] it's like, if I just said, something random about, again, Kim Kardashian or Donald Trump or something, it's not like he's going to be able to sue me for saying something that's not true because he's so public that we value the ability to just be able to say like, ah, Donald Trump probably, I don't know what, what can I say about Donald Trump? How far can I go before I've possibly, I'm sure this is something Eli has tested.

[0:29:47] Can we not make it you? Because I don't want to reveal attorney-client privilege here. There's the best way to think about it, right? Go to the grocery store and there's still some grocery stores that still stock the Inquirer and the Star and you know what used to be considered the the uh the tabloids in the aisle and you know Hillary Clinton has son uh with Bat Boy, right? Is uh, you know, Bat Boy, like with the ears and everything, right? Like that's a valid headline on that. So you know the fact that that doesn't meet the New York Times v. Sullivan standard, standard, uh, is a pretty solid indication of how

[0:30:27] far you can go. And I, you know, and I, I presume they, they are ready and lined up to say, no, no, no. Like you're the three crackpots we brought in and, you know, we investigated their stories and it seems like it checks out. So we felt comfortable going forward with the bat boy story. And that's where, you know, I mean, I have to say as much as I might feel bad for, you know, Hillary Clinton in having to read, You know, about her illicit son with Batboy. That's the line that we draw as a free society that wants open debate, right? We say we do not – we would rather err on the side of having

[0:31:07] people say mean things about public figures. And look, like particularly in the internet age, like I don't want to downplay, you know, what saying mean and untrue things about somebody can do to a person's reputation, right? Like that can be very, very serious. But we've decided as a society, we'd rather take that risk than have people say, well, gosh, I really feel strongly about this. I want to talk about this as a political issue, but I'm afraid if I do that a presidential candidate might sue me, right? Or that, you know, somebody else. And, you know, and that's the line that we're talking about.

So can we apply that here? Because I can imagine, again, knowing really nothing about that you do about these cases and how they tend to go and what's reasonable, all that. I mean, I can't imagine, given a hypothetical, someone spreading lies about somebody else, hypothetically, to not speak about this case, but I can imagine, sure, even though person X is public, person Y said a bunch of really damaging things that that caused their career to tank or something like that. I mean I could imagine that that being a reasonable thing to want to sue for, but how does that

[0:32:18] apply here? So here, for example, if I were to be making the argument on behalf of the defendants, I would look to paragraph 25 in the complaint, which is on page seven, which says, Dr. Carrier has for many years been an outspoken advocate for ethical conduct in the treatment of women and men and an ardent defender of responsible sex-positive feminism and ethical non-monogamy. And then it goes on to say, as a crucial part of that advocacy, he himself has always respected anyone's stated boundaries and would never subject anyone to harassment of any kind. Okay. So those are political issues, right? Sex positive feminism, ethical non-monogamy. And it

[0:32:58] certainly seems at least to be an argument to me to be able to say, hey, look, if somebody is a public defender of ethical non-monogamy, right, let's take a look at whether his conduct matches up with the arguments that he's making, right? That's not to defend intentional and recklessly malicious falsehoods, but it is to say that that debate is something we would expect publicly in a way that we would not expect the debate over a random person. Random convention goer. I usually do it like John Smith, but I have been trying not to use Smith in our conversations.

[0:33:38] So, you know, John Brown, let's say. Yeah, we can talk shit on that guy all day. Right. So, okay. So there wouldn't be a big difference. Right. So in other words, like it's totally reasonable to say if I went online and started posting stuff about my, you know, neighbor, John Brown and said, you know, boy, John Brown seems to have an awful lot of women over during the day. Like why on earth am I doing that? Right. There's no first amendment value in that. That. Whereas when you have a public figure who has taken positions, it's perfectly reasonable to say, okay, now let's match up with this conduct. And the really good example of that is Donald

[0:34:19] Trump, Newt Gingrich, Bill Clinton, right? If you want to go through and look at political figures. But now I have to ask about the truth. How does that impact it? Now, I don't know what happened. I don't know how much, I don't really want to go into that, but we could, deal in hypotheticals, right? We could say, let's say hypothetically, this stuff ended up being completely made up about carrier and then vice versa. What if

[0:34:44] it was pretty much so let's so let's do that first. Let's, you know, this was a little bit of a rabbit trail from the intentional infliction of emotional distress. Oh, yeah. Count four. Just to just to wrap it all up. Count five is negligent infliction of emotional distress, um, I will tell you, that's a controversial tort. It is, for example, it is not recognized in Maryland. It is recognized in Ohio. It is exactly what you would think it is, except that the predicate conduct is merely negligent, is not extreme and outrageous. So I do not, I have to tell you, not a tort in Maryland. I don't have direct experience.

[0:35:25] I have defended defamation suits before. I have considerable experience in those sorts of issues, uh, I do not have any direct experience on count five on the, uh, okay, on the negligent infliction. But is it fair to say in general when you're launching a suit of any kind, are you kind of throwing everything you can at it? Are you kind of just whatever and

[0:35:47] we have, and we've talked about that before. So, yes. So, as as you think about that, right, intentional infliction of emotional distress is obviously inclusive of negligent infliction. Yeah, I was thinking that. If you were alleging that somebody has intentionally, outrageously caused you this harm, then that obviously has not met with the standard of due care, which is what you need to prove in order to prove negligence. So you will often allege as many causes of action as plausibly fit the facts. And then as the case goes on and evidence is produced during discovery, you winnow down those allegations. Allegations. So now we're

[0:36:27] going to talk about the substance of the allegations, but I want to draw a really, really important distinction here first. And that is the difference between being able to win on a motion to dismiss versus being able to win ultimately on a motion for summary judgment or at trial. And those are kind of the three stages that you think about. So a motion to to dismiss can be brought for a variety of reasons, and we are going to talk about one of them here that is a particular wrinkle. Usually, you file a motion to dismiss under what's called 12B6,

[0:37:08] that is Rule 12 of the Federal Rules of Civil Procedure, subsection b, subsection 6, which is failure to state a claim upon which relief can be granted, which is to say that that all of the facts as alleged, even if true, do not constitute a reason to maintain a lawsuit, right? And I think I've given you that example before. There is a thing you can do where you say, you know what, even if we grant all this, I wouldn't even owe this person anything anyway under the law, so whatever. I know it probably wasn't as official as you would put it, maybe polish it up a little bit when you submit that, but Yeah.

[0:37:44] sometimes it's that close. Right. And, you know, it can involve a lot of different reasons. One of the most fun cases I ever had was back as an associate when I was with Covington and Burling. And this was, you know, 10 years ago. Gosh, 15 years ago now as I think about it. And I was doing work for the alcohol industry. And a gentleman had taken one of the class action lawsuits that was filed against the tobacco industry and had done a global search and replace and replaced the word tobacco with alcohol. And then had sued every – I think this

[0:38:24] guy was in Wisconsin and had sued every alcohol manufacturer and bar, alcohol manufacturer who sold products in the state of Wisconsin and every bar in the state of Wisconsin and had served them with this complaint, which was like 320 pages long and sued literally thousands of people. And I was the person who was fortunate enough to draft the lead motion to dismiss on behalf of all of the alcohol manufacturers. And the complaint was hilarious, right? Because literally what he had done was done a global search and replace, deleted tobacco and inserted

[0:39:05] alcohol, and then inserted like 100 pages of rambling stories about how he was an alcoholic in the middle of it. And so it led to things like a lengthy discussion of smokeless alcohol as sort of obvious. And so what I did was I moved to dismiss the thing under Rule 12b6 because as pled, it didn't make any sense. It didn't state a cause of action. And, you know, and he was taking something that was a class action lawsuit filed by the attorney general in Wisconsin and bringing it himself. So, you know, the allegations were things like plaintiff and the people of Wisconsin have been harmed, you know, by that. And like, you

[0:39:45] don't get to do that, right? And he had sought, he made up the damage numbers. But I want to say that there was a request for a million billion dollars. That's how I remembered. I could be wrong. Could have been billion million. Yeah. But, you know, it was something where I multiplied it out and it was, you know, if taken seriously, it was a quadrillion dollars, which was several times. A number several times larger than the – not just the gross national product of the United States, but the actual net value of all assets in the country. So it was a fun – So when it's so ridiculous,

[0:40:25] you can just say like, even if true, this doesn't make any sense. And it doesn't have to be that level of ridiculous, right? It just has to – and this is a real process we could go through. But that's what a motion to dismiss means. It means I don't have to be in this court. Get me out now. And the reason for that is if you can't get out on a motion to dismiss, then you're going to have to go through the discovery process.

And you're going to have to pay a lawyer to answer the complaint. You're going to have to pay a lawyer to produce the documents. You're going to have to pay a lawyer to ask the other side for documents, to take depositions, to defend depositions. And that all costs money. So are you saying that's what the defendants likely would or should do is that why you went to motion to dismiss

[0:41:32] to ultimately prevail on summary judgment or at trial is in of itself a different kind of hardship than if you can get out on a motion to dismiss. In a case like this, when you're sued for defamation, there's very little as the defendant that you can do, right? You are playing defense essentially. And it's like defense in – it's like being out in the field in baseball, right? The best you can do is give up no runs. You can't score runs when you're out in the field playing defense. And in actual legal terms, unless it falls into a number of specific categories that really aren't present in this case, we

[0:42:13] don't have fee shifting in just sort of general defamation cases. So, everything you're spending on legal fees as a defendant is something you're spending to get to zero, to get out of the case, right? So no matter, just again, hypothetically, if this was just all nonsense, let's say I just filed some nonsense thing against you for something you said, if it was just total nonsense, what do you do? Because you can't get any of the money back that you have to spend. I mean, are you

[0:42:50] just going to try to find the quickest way out, which is what the motion to dismiss that you mentioned? Yeah, no, that's right. Now, look, there are in very, very extreme cases, if you were to file something that is so frivolous as to sort of be beneath contempt, then I could move for sanctions in the federal system, their Rule 11 sanctions. But that's a really, really high bar to hit. As long as you have sort of anything that is arguable and characterizable, it puts me as the defendant in that difficult situation of having to start making an economic calculation

[0:43:30] of what does this do to me in terms of how do I evaluate a decision to go forward? Think about when we were on CogDiss and I think it was Tom was telling us about his company and how they just engage in sort of nuisance settlements, right? They were like a Fortune 300 company. And if they're sued and the plaintiff will go away for $20,000, they do that because it makes sense to do that rather than to fight on for values that are larger than that. And then obviously, if you have a situation where you're being hit time and time again, it may make sense to take a stand. Yeah, but it's a calculation you have to do. But

[0:44:10] there's a financial calculation and there's a particular financial calculation here where we're talking about individuals who've been sued in an individual capacity or – I mean one of the things that I find interesting about the lawsuit is although PZ Myers has been sued on behalf of Freethought Blogs, there are no allegations about the commercial aspect of Freethought Blogs. And I don't know any of the workings on that. But I would imagine that there's some mild commercializable aspects there. But he's being sued in his individual capacity and for the act of engaging and hosting

[0:44:51] individual political speech, and not for anything that's in a commercial context. And the motives that are alleged are not commercial motives. So you're saying Carrier could have said that he profited from this, but he didn't? Is that what you're trying to say? Yeah. And in specific, what I'm about to say is where I think you have a potential motion to dismiss is in the following areas. So the summary of what I previously said is in a defamation case, even in a public figure defamation case, it's very, very hard to get out on a motion to dismiss because it's easy for the plaintiff to just say, hey, we got to have discovery on these particular facts.

[0:45:31] And if that's all you're alleging, that makes it very, very difficult. However, there is another subsection of the Rule 12 of the Federal Rules of Civil Procedure, which is 12b -2. And that is lack of personal jurisdiction over the defendant. And we've talked about this before, but if you go through and look, now what we'll do is we'll go to the complaint and we'll scroll back up to the page one, which is the caption. You will see the caption tells us this was brought in federal court in the Southern District of Ohio in the Eastern Division. The Eastern Division doesn't matter at all, but we're in federal court in Ohio.

[0:46:11] We see Dr. Carrier lives in Ohio. Then when you look at the defendants, you see the defendants live in Minnesota, Minnesota, Minnesota, Minnesota, Missouri, Missouri, and Arizona. So what we have there is diversity jurisdiction. So all of the parties, all of the defendants and the plaintiff are from different states. The amount in controversy exceeds $75,000. We know it's $2 million. And so that gives you federal court jurisdiction. But so now you have to ask yourself, why can we bring in somebody from Missouri and hail them into court in Ohio? And for that, we

[0:46:51] scroll down to page two. And so there's a little section that says jurisdiction and venue. Paragraph one is subject matter. I just explained that. Citizens of different states amount in controversy exceeds $75,000. That's true. Paragraph two, this court enjoys personal jurisdiction over the non-resident defendants, which are all of them, pursuant to Ohio's long-arm statute, blah, blah, blah, and the due process clause of the 14th Amendment because defendants committed acts outside the state of Ohio intended to cause and causing injury in the state, including but not limited to the intentional publication of defamatory statements of and concerning an Ohio resident whose professional activities are centered in the district. Huh, so as you look at that

[0:47:31] let's go back to our baseline rule. Our baseline rule is if you have not intentionally availed yourself of it, of a state's jurisdiction, you may not be sued there. But I thought the internet, if you're on the internet just blogging away and then somebody reads it in that state, does that not count or if, if you're on the internet for and transacting international state commerce. So let's go to that Ohio long arm statute. Here's what it says. And I'll try and read this as least legal boringly as possible. It says, court may exercise personal jurisdiction over a person who

[0:48:13] acts directly or by an agent, blah, blah, blah. One, transacting any business in the state. So now that immediately, I think, brings you within the ambit if you are an online internet business and you have any customers in Ohio. Two, contracting to supply services or goods. Three, causing tortious injury by an act or a mission in the state. And that three is really like you live in Missouri, you're on vacation, you're driving through Ohio and you get into a car accident in Ohio, right? Like that's your tortious act that causes injury in Ohio. It's your fault. You've got to go back to Ohio. The plaintiff gets to sue you in Ohio even though you live in Missouri

[0:48:53] because you hit his car in Ohio. Four, causing tortious injury if you regularly solicit business in the state. Five is causing injury by breach of warranty. We're not going to go through that. But six, this is the provision they cite in the lawsuit. Causing tortious injury in the state to any person by an act outside the state committed with the purpose of injuring persons when he might reasonably have expected that some person would be injured thereby in the state. In connection with the internet, there's a pretty recent Ohio Supreme Court decision. It's called Kaufman Racing Equipment versus Roberts that that involved an Ohio company, Kauffman

[0:49:33] Racing Equipment, that built engine blocks and automotive equipment and stuff. And then Roberts, who was a resident of Virginia, never been to Ohio, and was reviewing the Kauffman Racing Equipment stuff on a website. So pretty analogous to this case, I think. And the Ohio Supreme Court said that Roberts could be, that the courts could exercise personal jurisdiction over Roberts in Ohio because he was specifically targeting an Ohio business and, you know, with terrible

[0:50:13] reviews of their product and trying to harm their Ohio business. And so the way in which I think it's arguably distinguishable in this case is I don't know that the harm of which Dr. Carrier is complaining is sufficiently confined to the state of Ohio so as to bring this within the ambit of the Ohio long-arm statute. So for example, he complains about being banned from Skepticon. Well, Skepticon is a Missouri corporation and the convention takes place in Missouri. The other things that he lists in his complaint as to being potentially

[0:50:54] denied the opportunity to speak at are things that have no strong connection to Ohio. So, for example, the Center for Inquiry, the Freedom from Religion Foundation, the American Humanist Association, the Council for Secular Humanism, and this is from paragraph 23, hundreds of other secular community groups across the entire United States, including Ohio and beyond, who cater to humanists, atheists, and skeptics, as well as ethical societies and churches and religious organizations who have hired him for interfaith work. So I think there is, at least on the face of it to me, reasonable grounds for

[0:51:34] the defendants to say, I don't know that this court has personal jurisdiction over me because I wasn't targeting Dr. Carrier's Ohio-based activities. I don't really care. I was commenting on this political activity. And to the extent that it has effects, the effects that he's alleged are primarily non-Ohio effects. And so there's no reason to drag me down into the state of Ohio. Now, obviously, I could get into a lot more of the details there. But what you're looking for from a defendant's perspective in this case is how do I

[0:52:14] avoid sort of the imbalance problem that we've talked about before, right? The fact that the best I can do is get to zero, get out of this case, and I can't get any money. And even if I win, I'm not going to get paid for my legal fees and for the time and the effort that I've spent on this. And I have to say from a political standpoint, right, and certainly as somebody who has stated strong opinions in podcasts and on my social media pages, I would want to be very, very leery on the idea that a private person engaging in speech on a public issue could

[0:52:55] be dragged into court across the country on the basis of a statement they've posted on the internet. With no commercial context, right? And that's why I think that that's significant, right? Like if I'm selling stuff and if we're selling goods across the country, then okay, that's a little bit different than if I'm just out there speaking on a Facebook page. So I think that notion – that notion of lack of personal jurisdiction is certainly an important component in telling the story alongside – look, I would certainly take the 12b6 shot as well for reasons that are

[0:53:35] – Yeah. The 12b6 is failure to state a cause of action. And I would state that as well and say that the facts as alleged do not rise to the actual malice standard because there's no allegation of knowing falsity and there cannot be. And in fact, there are allegations about the kind of investigation that was undertaken that are present in that. But again, that's sort of subject to the issue that I described earlier, which is to say it's very, very difficult to resolve a potential factual dispute on an early motion to

[0:54:15] dismiss because the plaintiff will always say, well, look, just let me have discovery and I'll prove X, I'll prove Y. So everything you've been saying is an effort, hypothetically, if you were the defendant to try to keep it from going that far. Like, these are the things you would pursue. And then to put it in simple terms, when you said the thing a minute ago, you'd take the 12b6 shot, whatever the heck it

[0:54:36] was.

0:54:37 Thomas: Is that loosely speaking saying you didn't know these things were false? You had reason to believe they were true or you had a reasonable kind of suspicion that they were true? Is that what that means? Or I guess I'm not.

[0:54:50] Remember that the New York Times v. Sullivan standard for proving defamation against a public figure is actual malice. That is that the person publishing the statement either knew it to be false or engaged with reckless disregard for the truth. And I would say, and you can read through and read the allegations for yourself, the allegations themselves demonstrate there's some criticism of the degree of investigation that was undertaken, but the allegations themselves identify that steps were taken to investigate the process, right? So the conduct about which is complained is conduct that is repeating

[0:55:30] an allegation made by someone else and then saying, we are trying to investigate this allegation. And I would certainly feel very comfortable arguing in court that that by definition cannot meet the New York Times standards. Remember, the New York Times v. Sullivan standard is one that says bat boy is okay. K. You've got to be worse than that. And in order to be worse than that, you either have to know that the thing is false, or you have to truly not care whether it's true or false. And the the allegations here seem to suggest that yeah exactly now would I would I feel a hundred percent confident I don't I

[0:56:10] don't think I would feel a hundred percent confident that we're going to win on a 12b6, but I, I think that it's a, a defensible argument, let's say for the sake of argument, again, 100 hypothetical, for the sake of argument. Let's say the case is totally true. Like there was uh slander or whatever or libel or whatever. Let's say that's granted. What would have been then the correct thing to do lawsuit-wise?

[0:56:35] Like, would he have had to sue them in a different court in a different - Yeah, you sue them in the state in which they committed the wrong and in which they resigned, right? So, you'd have to do different lawsuits for each state? Yeah. There would be one in Minnesota, one in Missouri, and one in Arizona. Yeah. I'm getting the impression that this is not likely to go anywhere.

0:56:56 Thomas: But I don't know how much can I speculate on that legally and not be liable

[0:57:02] for anything. Yeah, no, look, you can absolutely comment on the case, which is what we're doing. This is a public document that we are reviewing. And, you know, I think we've been very fair in how we've gone about doing that. Ultimately, my judgment is on the facts that are presented in the complaint, I don't see how those facts constitute the damages that are being sought against the individuals who have been sued. And I think that for an awful lot of reasons, the easiest one is the fact that the lawsuit concedes that Dr. Carey is a public figure. The standard for proof for a

[0:57:42] public figure is unbelievably high. Is Batboy. Yeah, is Batboy. No, it's not even Batboy. Batboy is fine, right? Yeah, is better than Batboy. And nothing is better than Batboy. And the allegations themselves show that there was, you know, complain about the inadequacy of the investigation as opposed to complaining about there being a total disregard, right? Like, you know, I have to, I mean, it really is sort of on the level of, well, I mean, again, the best way to think about this is to understand that as this complaint is pled, Dr. Carrier

[0:58:22] is, I keep using Kim Kardashian, but maybe I should be using political figures, right? Maybe I should be saying is on a level with Donald Trump or Hillary Clinton. That's the standard that you have to prove. And right now, yeah, I mean, you have 50 million people who have said that, you know, Hillary Clinton was dragged into the car after an appearance and replaced with a body double, right? And how much, you know, that's demonstrably false and has been undertaken with zero investigation. And yet none of those people are going to be sued for defamation. The worst of them could, yeah, I don't know. But ultimately, that's sort of the box in which you put yourself, and the courts

[0:59:02] are sort of very, very reluctant to do much of anything once you've put yourself in that box. Thanks for giving way more of your time than I even intended for you to have to give, but I really appreciate it. I think this is good info for everybody, I think it informs us on something that involves a lot of people in the atheism community that, I know, I care about

[0:59:22] and I'm interested in, and so thank you for providing that insight for us. Yeah, no problem. And I believe people can find you on a little podcast called Opening Arguments. So check that out. We have like one or two listeners, I know, but... Yeah. In common, you mean? Probably a couple in common, yeah. Thanks for having me on again. Thanks.

[1:00:06] all right. Well, lots to say. A lot to say, seriously. First off, we recorded for almost two hours. I actually had to cut a lot of that. I think I'm going to release some of it as a bonus content. I asked some questions that I think were actually pretty interesting, especially the ramifications of it for me as a podcaster, like what I can say, all that stuff. But it just, we talked for so long. Time flies when I'm talking to Andrew. I love doing it. So I didn't want that to go on too long, especially knowing that I wanted to do some amount of commenting on it. All right, so my kind of verdict is, and of course, this is just my opinion, and I'm not an expert.

You've heard the expert, now it's time for the non-expert. My opinion is that this lawsuit is not going Is not going anywhere. I think the public figure thing is pretty deadly. Not only that, with With the help of production assistant extraordinaire Haley, we've gone through all of the posts, the original posts, what the accusations are, Carrier's posts, and almost all of these, so The Orbit, Stephanie Zvon, Free Thought Blogs, PZ Myers, Lauren Lane, Aimée Frank, just about all of them report allegations. They just say allegations. So they say Richard Carrier was alleged to have done something like this and we believe it or something, you know, that according to,

1:01:33 Thomas: Based on what I've heard from Andrew, I don't, I just don't see how that could hold up in any sort of lawsuit. It doesn't make any sense to me. If someone was accused of something, and I report, say I write on my blog, Richard Carrier was accused of something. How on earth could that be defamation? I really don't, that's just not the country we live in. We live in America. It's pretty, I mean, it's pretty lax. We value, as Andrew said, we value the the First Amendment very highly. I worry that this entire thing is mainly to strong-arm some sort of reaction.

1:02:13 Thomas: I worry. That's a worry I have. Again, I'm being very careful. I don't want to get added onto this lawsuit. I get it. I mean, from Richard's perspective, if he didn't do anything and he's seeing that these accusations were published, I could totally understand how frustrating that would be. I am absolutely not going to speak to whether or not the accusations are true. I'm not going give an opinion on that. I don't know. I wasn't there. I don't know what's going on. But everything I'm seeing here, the Orbit, Freethought Blogs, the Lauren Lane article, the people named in the lawsuit, they all say, pretty much, that he's accused of stuff. And that seems to be reporting news.

I don't really see how that could possibly be anything but a totally valid exercise of our First Amendment rights in this country. So I don't really see it going anywhere, I'll be honest, especially if, say, Richard is totally telling the truth in everything that he's said about these accusations, I do feel for him a bit. As a public figure, it does sound like the burden's incredible, you know, you're not able to... The burden is Batboy, as Andrew said so many times. I would certainly have sympathy for someone who was in that predicament where they were totally innocent, and accusations were made, and there's really nothing you can do, unfortunately, for you. I don't know if that's the situation Dr. Carrier is in, I'm not going to speculate, again, but I would feel for

1:03:56 Thomas: Him, certainly, and I understand the impulse to want to try to do something about it, but it seems as though, based on our expert testimony here, about how the law works. It doesn't seem as though this is valid. So that is entirely my opinion. My opinion is that this doesn't seem valid. I'm not an expert. We had one on. You already heard from the expert. You can judge for yourself. So unfortunate all around. But I think it's... I wanted to know all this. I'm very glad that Andrew taught us about all this. I didn't know a lot of this, being someone who has a podcast, who exercises his First Amendment rights. If we didn't have the First Amendment, I wouldn't have a show.

You know, if I wasn't able to give my opinion on stuff on this show, it wouldn't exist. So I'm glad to have learned more about that, even totally irrespective of this case, to know what I can and can't say. Uh, it sounds like I can't talk shit on my neighbor. I can pick some guy who lives, you know, some, some non-public figure and just totally make stuff up about them or, or even non-made up stuff potentially sounds like, I can do that. That's a no go, but it sounds like a public figure. Um, you, I'm able to give my opinion on it. I'm able to, as long as I frame it that way, which I believe I have here, I

1:05:17 Thomas: Am able to do that. So valuable knowledge. I really think that is valuable because you see the arguments all the time. You see commenters. I see commenters all the time. How dare you speculate on this? How dare you? Whatever. That's defamation. Now I know what defamation is. And now I feel armed for that. And it's because all thanks to Andrew Torrez. And if you want more, Andrew, check out Opening Arguments. So that's my show for today. I need to, oh, it's Thursday. I got to thank my patrons, my very kind patrons over at patreon.com/atheist. I am very, very privileged to say that I've got some new patrons to thank.

Thank you Daylin Samis-Grix, thank you Eliza Lamb, thank Pretheist, thank Chuck, John Reynolds, Brad McCloskey, Randy, Hertzey Hertz, Robert Lisiewski, Kirk Mudle and Adam Brenton. Thank you, thank my kind new patrons. I can't tell you how much I appreciate it. With all of your help, I am so close to going full-time on podcasting. It's a scary thought, but I'm going to do it because it's worth it, and I want to have more, even more time to put into the show, put out great content for you guys. So with that said, I've got to thank my top all-time greats. That's Hunter Ashe. That's Sakashite Fukasami. That's Jesse. That's Inciting Incident

1:06:37 Thomas: Podcast, alongblackcock, Kaylee Reiser, Zimu Zinu Jr., Jonathan Jonathan Moyet, J. Alden, Walt, Ian Rosano, Pretheist, Roger Metcalf, robert schepis, Sammy, Adrian Borschoff, Blackhawks, Aerosign Sharks, Steve Sigmund, Peter Skelton, Brian Gearfort, Dale and Matt Garrett, thank you guys so very kindly for being my top patrons. All right, that's it for the show. Lots of great stuff coming for you next week, of course, with the help of my production assistant, Haley. She's helping me really get new guests and find interesting things to talk about. I'm loving where the show's going lately. So thank you so much for listening and I will see you next week.