Like every journalist, I'm grateful for laws that protect people exercising their First Amendment rights against dubious lawsuits designed to harass or intimidate.

But in practice, anti-SLAPP suits can be deeply unsatisfying, as two recent cases—one involving fitness guru Richard Simmons, the other a man on a self-proclaimed mission to stop revenge porn and cyber-bullying—make clear.

I've written before about Simmons, who sued the National Enquirer and Radar Online after they wrongly reported he had transitioned to a woman. In September, a Los Angeles County Superior Court judge ruled Simmons was on the hook for their legal fees because it's not defamatory to say someone is transgender.

It was a groundbreaking LGBQT ruling, but it came (literally) at Simmons' expense.

The original bill from counsel at Davis Wright Tremaine; Kendall Brill & Kelly and Jassy Vick Carolan was $221,888.  According to the Hollywood Reporter, the judge recently ruled that was excessive and lowered it to $130,000.

Still, that's a lot of money to pay a publication that printed a huge factual error about you on its front page.

A Texas appeals court last week dove into another sticky anti-SLAPP suit in a case that showcases the uglier side of the internet.

“Digital vigilante” James McGibney owns the website BullyVille.com, which focuses on exposing revenge pornographers, pedophiles and other online bullies. As Wired magazine noted in a 2016 profile, this made him “a bona fide target for online degenerates.”

McGibney hit back. In 2014, he filed suit in Texas state court, going after defendants that he said made comments such as “I would like to bury a hatchet right in [McGibney's] f_cking damn face,” and “It will be really funny seeing someone post pics of your wife Christina when she is shopping at Smith's with ur two kids.”

McGibney said they also bombarded his advertisers and celebrity endorsers with hateful comments.

He sued for claims including defamation, harassment and tortious interference with business contracts.

[A]ll of Defendants' postings are in fact verbal acts that are specifically intended to harass, intimidate, annoy, cause worry, terrorize, violate Texas Penal Codes, and impose as much mental anguish and pecuniary harm as possible,” wrote his lawyer at the time, John S. Morgan, who is based in Beaumont, Texas. “None of Defendants' postings at issue constitute opinions that are protected under the First Amendment of the United States Constitution.”

Wrong.

Within a month—before anyone was even served—McGibney withdrew the suit and refiled it in federal court in California, where he lives.  It was later dismissed on jurisdictional grounds. Nonetheless, one of the defendants, Neal Rauhauser, hit him with an anti-SLAPP suit in Texas.

McGibney, who had appeared on shows such as Dr. Phil, Anderson Cooper and Maury Povich, was a public figure, Rauhauser's lawyer, Jeffrey Dorrell of Hanszen Laporte argued. “The right to criticize public figures harshly—even cruelly and unfairly—is one the framers of the First Amendment used with relish,” he wrote, adding there is “now no visible limit” on how hateful comments can be about a public figure without losing constitutional protection.

The judge, Donald Cosby of the 67th District Court in Tarrant, Texas, agreed, ruling that McGibney “brought this suit against Rauhauser willfully and maliciously to injure Rauhauser by deterring Rauhauser from exercising his constitutional rights—specifically, to truthfully criticize plaintiffs.”

Without holding a hearing, the judge socked McGibney with a $1 million penalty plus $300,000 in attorneys' fees. He subsequently lowered the penalty to $150,000, but kept the legal fees intact.

Cosby also ruled that McGibney had to give Rauhauser six domain names and publish for 365 consecutive days a “written apology on the first page of all websites” that he owned “for making certain allegations” against Rauhauser and his lawyer, and  admitting that he had no evidence to support them.

So…wow.

On April 19, the Court of Appeals for the Second District in Texas un-did much of that. Writing for the panel, Chief Justice Bonnie Sudderth ruled that the trial court judge abused his discretion in imposing non-monetary sanctions.

The panel also held that the $150,000 penalty was excessive and vacated it.  Moreover, they found that the award for attorneys' fees was not reasonable.

For one thing, some billing statements from Hanszen Laporte were “so heavily redacted as to be meaningless.” Looking at one entry, Sudderth wrote all that could be gleaned is “that the attorney exchanged several emails with his client, adjusted something, completed drafting an affidavit of some sort, and continued researching and drafting something else.”

She also noted there were charges “for legal work related not only to a different case but also one in which Appellee was not a party,” and bills for “reviewing the entire files of trial court cases outside of this court's jurisdiction, when the rulings from those cases would yield no authoritative—or even persuasive—authority to guide the trial court in the instant case.”

Sweeter still, the appeals court ordered Rauhauser to “pay all of the costs of this appeal,”

The case will go back to Cosby.

Thomas Retzlaff, who was also sued by McGibney but was not part of the anti-SLAPP suit, said on an anti-McGibney blog, “Mr. Dorrell and Hanszen Laporte is still going to be awarded a decent amount of money. Remember–pigs get fed, hogs get slaughtered. The Court of Appeals just felt we were being a bit of a hog here. But you know that Judge Cosby will give our side every benefit of the doubt when it comes time to do this shit over.”

As for McGibney, he said in an interview, “I've learned a lot from this. I can assure you there is no way in hell I'm ever going to sue someone for defamation again.”

 

Lateral Watch

Trial ace Henry “Hank” Asbill is jumping from Jones Day to Buckley Sandler, where he'll be a partner in the 150-lawyer firm's white-collar and complex civil litigation practices in Washington.

Asbill brings the experience of more than 100 trials and 30 appeals with him, including defending former Virginia Gov. Robert McDonnell, whose convictions were vacated by the U.S. Supreme Court in 2016.

For more, see Hank Asbill Jumps to Buckley Sandler From Jones Day

 

Gibson, Dunn & Crutcher snagged M. Kendall Day, a former acting deputy assistant attorney general in the Justice Department's Criminal Division.

He joins more than 50 former U.S. Department of Justice lawyers at Gibson Dunn, where Day will work in the firm's white-collar practice.

For more, see Gibson Dunn Adds Ex-DOJ Official, Anti-Money Laundering Pro

 

What I'm Reading

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With Chadbourne Suit Behind Her, Kerrie Campbell Continues Gender Equity Struggle

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Greenspoon Marder Opens LA Office With 6-Lawyer Group

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No Standing for Monkey to Bring Selfie Copyright Suit

Sorry Naruto.

McIver Defense Promises to Appeal Jury's Guilty Verdict for Murder

Atlanta attorney Claud “Tex” McIver was convicted of felony murder for the 2016 shooting of his wife, Diane McIver.

Judge Keeps $125M Provigil Settlement Intact, Denying Claim Document Wasn't Final

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Jury Awards $417K Despite Facebook Posts of Injured Man Running Race

Oh, c'mon–the photos showed the injured plaintiff competing in a Tough Mudder race.