Jameswoods Doe Oppo

8/20/2019 Jameswoods Doe Oppo

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DEFENDANT JOHN DOE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO CONDUCT EARLY DISCOVERY

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BROWN WHITE & OSBORN LLP KENNETH P. WHITE (Bar No. 173993)333 South Hope Street, 40

th Floor

Los Angeles, California 90071-1406Telephone: 213. 613.0500Facsimile: 213.613.0550

[email protected]

Attorneys for DefendantJOHN DOE

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

JAMES WOODS,

Plaintiff,

v.

JOHN DOE, ET AL.,

Defendants.

Case No. BC589746

Assigned to: Hon. Mel Recana

DEFENDANT JOHN DOE’SOPPOSITION TO PLAINTIFF’S EXPARTE APPLICATION TOCONDUCT EARLY DISCOVERY;

DECLARATION OF KENNETH P.WHITE; EXHIBITS

Date: August 27, 2015Time: 8:30 a.m.Dept.: 45


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1DEFENDANT JOHN DOE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO CONDUCT EARLY DISCOVERY

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MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION

Plaintiff James Woods (“Plaintiff”) is abusing the court system to lash out at a

constitutionally protected political insult – the very sort of insult he routinely uses himself.

Now, by this ex parte application, he seeks further to abuse this Court’s processes to identify

an anonymous critic. The Court should deny it, or at a minimum set a briefing schedule so

that the important First Amendment issues presented can be briefed properly and resolved on

a full record, and so that Defendant John Doe (“Mr. Doe”) may file his anti-SLAPP motion.

Plaintiff, an internationally known actor, is active on Twitter, a social media platform.

There he is known for engaging in rough-and-tumble political debate. Plaintiff routinely

employs insults like “clown” and “scum,” and even accuses others of drug use as a rhetorical

trope:

But Plaintiff apparently believes that while he can say that sort of thing to others,

others cannot say it to him. He has sued Mr. Doe for a derisive tweet referring to him as


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“cocaine addict James Woods still sniffing and spouting” in the course of political back-and-

forth. Complaint at ¶ 9. He also complains, at length, that Mr. Doe has called him things

like a “clown” and “scum.” Naturally, Plaintiff has himself called others “clown” or “scum”

on Twitter.

Plaintiff now seeks “early discovery” allowing him to subpoena Twitter to obtain Mr.

Doe’s identity. He tried once before; Twitter objected because the subpoena was

procedurally defective and did not give Mr. Doe notice. This Court should reject Plaintiff’s

request, or at a minimum order a briefing schedule to address it:

Plaintiff cannot prevail on his claims. It is axiomatic that only provably false

statements of fact can be defamatory. Mere rhetorical hyperbole not meant to be

taken literally cannot be, and is absolutely protected by the First Amendment. In

the context of Twitter – specifically including Plaintiff’s own penchant for

hyperbole there – Mr. Doe’s statement cannot be taken as a factual assertion that

Plaintiff is a “cocaine addict.” Rather, Mr. Doe’s tweet was part of a familiar

“meme,” or in-joke, referring to Plaintiff that way as an insult.

Because Plaintiff cannot prove defamation, he is not entitled to pierce Mr. Doe’s

anonymity. The First Amendment protects the right to speak anonymously, and

prevents Plaintiff from using legal process to unmask an anonymous speaker when

he has no case.

Plaintiff will be filing an anti-SLAPP motion on September 1, 2015, which will

stay discovery and render the issue moot.

Mr. Doe, and Twitter, should have a full and fair opportunity to address the First

Amendment issues raised by Plaintiff’s request.

Therefore, this Court should deny the ex parte application, or else set a briefing

schedule so that all interested parties may be heard on reasonable notice.

//


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II.

STATEMENT OF FACTS

A. Twitter Is A Social Media Platform Known For Hyperbole

Twitter is a social media platform – that is, a place for people to interact

electronically. One court described its function as follows:

‘Twitter’ is a ‘real-time information network that connects’ users to the ‘latest

information about what you find interesting. At the heart of Twitter are small bursts

of information called Tweets. Each Tweet is 140 characters in length....’ Twitter users

may choose to “follow” other users. If user No. 1 decides to ‘follow’ user No. 2,

Twitter messages (Tweets) posted by user No. 2 will show up on the home page of

user No. 1 where they can be read. (United States v. Cassidy, 814 F.Supp.2d 574, 576 (D.

Md. 2011).)

Plaintiff is a Twitter user under the name @realJamesWoods, and Mr. Doe is a

Twitter user under the name @AbeListed.

Twitter is known for hyperbole, overheated rhetoric, and ad hominem attacks. It’s

“notorious for spreading misinformation.”1 It’s known for being relentlessly insulting: “the

Twitter universe is never happier than when it's being snarky, or downright nasty, to

someone.”2

B. Plaintiff Participates In Twitter’s Rough-And-Tumble Culture of Insult

Plaintiff himself is a well-known part of Twitter’s culture of political hyperbole. He’s

been called “Obama’s biggest twitter troll”3 and a “prolific, highly articulate, and politically

1 New Scientist, Twitter Bots Grow Up and Take Over the World , July 30, 2014, retrieved fromhttps://www.newscientist.com/article/mg22329804-000-twitter-bots-grow-up-and-take-on-the-world/

2 CNN.com, Study: Twitter Opinions Don’t Match the Mainstream, March 4, 2013, retrieved from

http://www.cnn.com/2013/03/04/tech/social-media/twitter-reactions-public-opinion/.3 Daily Beast, How James Woods Became Obama’s Biggest Twitter Troll, December 31, 2014,

retrieved from http://www.thedailybeast.com/articles/2014/12/31/how-james-woods-became-obama-s-biggest-twitter-troll.html.


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incorrect conservative voice on Twitter.”4 He has suggested publicly on Twitter that his

vocal conservative advocacy will cost him work in Hollywood.5 Plaintiff has stated publicly

that he expresses himself on Twitter to avoid mainstream media “editorializing.”6 He revels

in Twitter’s culture of insipid insult, retweeting (that is, repeating so that his Twitter

followers can see) vulgar and abusive insults directed at him.7

Plaintiff enjoys rhetorical excess and insult himself. He calls people “clown” and

“scum,” notwithstanding that he complains about Mr. Doe saying those things to him.

(Exhibits E, F to White Decl.) He makes jokes about eating a sandwich rather than saving

drowning political figures he doesn’t like (Exhibit G), and suggests that he wouldn’t mind

killing people wearing shirts with offensive and incendiary messages. (Exhibit L.) He

responds to insult with insult; when a pundit called him a “dick,” he shot back “I’m not sure,

coming from him, if ‘dick’ is a menu choice! Lol.” (Exhibit J.) He forthrightly ridicules

opinions he doesn’t like, such as Justice Anthony Kennedy’s statement “gays ask for equal

dignity in the eyes of the law.” (Exhibit K.) And, as is noted above, he has repeatedly used

the fatuous “you’re on cocaine” insult in the course of Twitter fisticuffs:

//

4 Daily Caller, James Woods: I’ll Probably Never Work In That Town Again, October 9, 2013,retrieved from http://dailycaller.com/2013/10/09/james-woods-ill-probably-never-work-in-that-town-again/#ixzz3k38zCMXD.

5 “Woods, who recently appeared in White House Down and Jobs, was replying to a tweet thatquestioned the wisdom of his outspoken declarations. "I don't expect to work again. I thinkBarack Obama is a threat to the integrity and future of the Republic. My country first." TheGuardian, James Woods Claims Hollywood Is Against Him After Anti-Obama Tweets,retrieved from http://www.theguardian.com/film/2013/oct/10/james-woods-tweets-barack-obama.

6 Twitch.com, ‘For the Record’: James Woods Explains Why He’s Giving Up on The MSM andSticking To Twitter, October 11, 2013, retrieved from http://twitchy.com/2013/10/11/for-the-record-james-woods-explains-why-hes-giving-up-on-the-msm-and-sticking-to-twitter/.

7 Twitchy.com, ‘Unending Stream of Mindless Bile’: James Woods Retweets Liberal Followers,

August 8, 2014, retrieved from http://twitchy.com/2014/08/08/unending-stream-of-mindless-bile-james-woods-retweets-liberal-followers/.


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Perhaps because he’s so consistently combative, or perhaps because he’s played the

role of drug users in his movie career, “James Woods is on cocaine” has become a Twitter

in-joke or meme. There are many examples of this joke being levied against him before Mr.

Doe made it. (Exhibits H, I, M.)


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C. Plaintiff’s Claims Against Mr. Doe

Plaintiff complains that Mr. Doe has used “childish name-calling” against him, and

has used “derogatory terms such as ‘prick,’ ‘joke,’ ‘ridiculous,’ ‘scum,’ and ‘clown-boy.’”

Complaint at ¶ 8. However, even Plaintiff does not seem to suggest those insults are

actionable. Rather, Plaintiff complains that Mr. Doe called him “cocaine addict James

Woods still sniffing and spouting.” Mr. Doe did use words to that effect. They were part of

an exchange of rhetorical hyperbole and insult consistent with Twitter culture and employing

the known “cocaine” meme or in-joke levied at Plaintiff. (Exhibit N to White Decl.) As is

set forth below, no rational person familiar with the context could take them to be a serious

factual assertion that Plaintiff uses cocaine.

Mr. Doe has informed Plaintiff that he will be filing an anti-SLAPP motion by

September 1st; Plaintiff responded by noticing this ex parte application. (White Decl. at ¶ .)

Previously Plaintiff attempted to subpoena Mr. Doe’s identity from Twitter; Twitter


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responded with objections, pointing out that Plaintiff’s subpoena was defective in multiple

respects. (Exhibits A, B to White Decl.) Twitter has indicated that, in the event this Court

permits Plaintiff to issue a new subpoena, it will object to it and potentially seek to quash it.

(Exhibit O to White Decl.).

III.

ARGUMENT

This Court should deny the ex parte application, or at a minimum set a briefing

schedule for full briefing of the request. Because Plaintiff seeks to pierce the anonymity of

an online speaker, he must make a prima facie case of defamation. He can’t, because the

expression he complains of is plainly insult and hyperbole, not a provable false statement of

fact. Therefore, Plaintiff isn’t entitled to the subpoena. Moreover, discovery will be stayed

when Mr. Doe files his anti-SLAPP motion.

A. THE FIRST AMENDMENT PROTECTS MR. DOE’S ANONYMITY

This Court should deny this ex parte application because Mr. Doe has a First

Amendment right to anonymous speech. Under well-established California law, the Court

should not allow Plaintiff to use legal process to pierce that anonymity unless he can

demonstrate he can prevail. He cannot; his case is a vexatious slap at a critic.

Both the California Constitution and the U.S. Constitution afford Mr. Doe a right to

privacy and anonymity. ( Digital Music News LLC v. Superior Court (2014) 226 Cal.Ap.4th

216, 228. That right protects anonymous speech online:

Both California courts and federal courts have recognized the value in

extending the protections afforded anonymous speech to speech made via the

*229 Internet. (See generally Reno v. American Civil Liberties Union (1997)

521 U.S. 844, 870, 117 S.Ct. 2329 [138 L.Ed.2d 874, 117 S.Ct. 2329]; Krinsky

v. Doe 6, supra, 159 Cal.App.4th 1154, 72 Cal.Rptr.3d 231.) “The use of a

pseudonymous screen name offers a safe outlet for the user to experiment with

novel ideas, express unorthodox political views, or criticize corporate or

individual behavior without fear of intimidation or reprisal. In addition, by


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concealing speakers’ identities, the online forum allows individuals of any

economic, political, or social status to be heard without suppression or other

intervention by the media or more powerful figures in the field.” (Krinsky v.

Doe 6, supra, 159 Cal.App.4th at p. 1162, 72 Cal.Rptr.3d 231.) “The ‘ability to

speak one’s mind’ on the Internet ‘without the burden of the other party

knowing all the facts about one’s identity can foster open communication and

robust debate.’ ” ( Doe v. 2TheMart.com Inc. (2001) 140 F.Supp.2d 1088,

1092.) ( Digital Music News LLC, 226 Cal.App.4th

at 228-29.)

When a litigant seeks to pierce an online speaker’s anonymity, California courts

require more than a request. They require a showing of compelling need that outweighs the

the privacy right involved. Digital Music News LLC , 226 Cal.App.4th

at 229-230. In the

context of defamation actions against anonymous internet speakers, California courts require

the plaintiff to make a prima facie case of defamation to be entitled to a subpoena to an

Internet Service Provider. (Krinsky, 159 Cal.App.4th

at 245-46.) If the Plaintiff can’t do that

– for instance, because the complained-of language is internet hyperbole, not a statement of

fact – California Courts quash such subpoenas. ( Id. at 247-48.)

Plaintiff cannot make a prima facie case because as is discussed below the

complained-of language is obvious rhetorical hyperbole, not a provable statement of fact.

Therefore the Court should not allow them to issue a subpoena.

B. Mr. Doe’s Insult Was Hyperbole, Not A Statement of Fact

Plaintiff can’t make a prima facie case of defamation because he can’t cite a false

statement of fact. Only provably false statements of fact can be defamatory; insults,

hyperbole, and “loose and figurative expressions of opinion” cannot be. (See, e.g., Paterno

v. Superior Court (2008) 163 Cal.App.4th

1342, 1356.) Mr. Doe’s “cocaine addict” tweet – a

clear reference to the Twitter in-joke about Plaintiff – cannot be taken as a statement of fact,

especially in the context of Twitter – a context that Plaintiff helped to construct.

//


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Case after case has recognized that speech on internet forums like Twitter is likely to

be viewed as opinion or hyperbole, not fact. That’s particularly true when the statements are

couched in bombastic language:

In Krinsky, the court found that posts on a Yahoo! Finance board that accused the

plaintiff of misconduct using terms like “mega scum bag” and “cockroach” were

not statements of fact. “A reasonable reader of this diatribe would not

comprehend the harsh language and belligerent tone as anything more than an

irrational, vituperative expression of contempt for the three officers of SFBC and

their supporters.” (159 Cal.App.4th

1175-76.) (noting that debate or criticism often

becomes “heated or caustic” on the internet).

In Summit Bank v. Rogers (2012) 206 Cal.App.4th

669 (2012), the court reviewed

numerous authorities for the proposition that “online blogs and message boards are

places where readers expect to see strongly worded opinions rather than objective

facts.” ( Id. at 696-97.) The court explained that in determining whether a

statement is taken as fact or bluster, the court must consider how someone familiar

with the context would view them: “Rogers’s statements must be viewed from the

perspective of the average reader of an Internet site such as Craigslist’s ‘Rants and

Raves,’ not the Bank or a banking expert who might view them as conveying

some special meaning.” ( Id.)

In Chaker v. Mateo (2012) 209 Cal.App.4th

1138, the court found that an ex-

lover’s rant on a review site called “Ripoff Report” was non-actionable opinion.

Because the defendant’s statements were made “on Internet Web sites which

plainly invited the sort of exaggerated and insulting criticisms of businesses and

individuals which occurred here,” the defendant’s statements that plaintiff “picks

up street walkers and homeless drug addicts and is a dead beat dad would be

interpreted by the average Internet reader as . . . insulting name calling . . . .” ( Id.

at 1149.)


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A statement is not automatically one of opinion because it is made on a forum like

Twitter. But here, there were no factors that would suggest that the @abelisted tweet was

meant to be a statement of fact instead of mere Twitter bluster. ( Bently Reserve L.P. v.

Papaliolios (2013) 218 Cal.App.4th

418, 433-34 [reviewing factors that might make internet

speech factual].) It was not labeled as a fact. The @abelisted account did not suggest any

factual basis for the insult, nor any way that @abelisted could know it. There were no

indicia that @abelisted was some sort of reliable reporter on such issues. It was not

surrounded by factual statements. It wasn’t made by a known person; rather, it was said

anonymously, which California courts recognize make it even less likely to be viewed as a

statement of fact by readers. (Krinsky, 159 Cal.App.4th

at 1162; Summit Bank , 206

Cal.App.4th

at 697.) It wasn’t professionally uttered, but was part of a series of tweets with

questionable diction, grammar, and construction. In short, every possibly factor pointed to

it being a mere insult, not a statement of fact.

Plaintiff, through his conduct and Complaint, provides the best arguments for Mr.

Doe’s insult being non-factual. Plaintiff places the tweet squarely in the context of “a

campaign of childish name-calling,” (Complaint at ¶ 8) which is exactly the sort of

expression that’s protected opinion rather than actionable fact. Moreover, by suggesting

people he disagrees with are smoking crack (Exhibits C, D), that he’d rather eat a sandwich

than save two liberal politicians from drowning (Exhibit G) , and that he’d like to kill a man

for wearing a hideously offensive 9/11 shirt (Exhibit L), Plaintiff has demonstrated that he

knows perfectly well that this sort of rhetoric is not to be taken at face value. (These are

but a few examples; there are many, many more.) He has demonstrated that this lawsuit is

petty and malicious.

Plaintiff can’t show a false statement of provable fact, so he can’t make a prima facie

case of defamation. Nor can he make a prima facie case for his second cause of action of

False Light Invasion of Privacy. First, that claim is defective when combined with a

defamation claim based on the same facts. “When an action for libel is alleged, a false-light

claim based on the same facts (as in this case) is superfluous and should be dismissed.”


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( McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961, 965.)

Moreover, if a defamation claim cannot succeed, nor can a false light claim on the same

facts. (Tamkin v. CBS Broadcasting (2011) 193 Cal.App.4th

133, 148.)

Plaintiff can’t make a prima facie case on either claim, and isn’t entitled to pierce Mr.

Doe’s anonymity.

C. Mr. Doe’s Anti-SLAPP Motion Will Stay Any Subpoena

Mr. Doe informed Plaintiff that he’d be filing an anti-SLAPP motion if this matter

could not be resolved by August 31, 2015; Plaintiff’s response was to rush to court ex parte

to try to get discovery first. That gambit should fail.

Mr. Doe’s anti-SLAPP motion, which he will file September 1, will automatically

stay all discovery. (Cal. Code Civ. Proc. § 425.16(g).) Plaintiff may make a noticed motion

for discovery to help him carry his burden of proof. ( Id.) But if Plaintiff is looking for

discovery to pierce Mr. Doe’s anonymity, that motion should fail. Section 425.16(g)

discovery may only be permitted to the extent it allows a plaintiff of carrying its burden of

showing a likelihood of prevailing on the merits. Discovery that is not directly relevant to

the legal defense Mr. Doe is asserting is not permitted. ( Blanchard v. DIRECTV, Inc.

(2004)123 Cal. App. 4th 903, 922, 2; Taheri Law Group v. Evans (2008) 160 Cal. App. 4th

482, 492–493.) Mr. Doe’s identity has nothing to do with his defense – that his tweet is

patently hyperbole and insult, not a statement of fact.

D. At The Least, The Court Should Permit Full Briefing

At the very least, the Court should permit a full briefing schedule to allow Mr. Doe to

vindicate his First Amendment rights. Mr. Doe’s counsel prepared this brief without the

benefit of seeing the application and does not know exactly what arguments or evidence

Plaitniff will bring to bear. The issues presented here are too important to be resolved ex

parte.

//


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Jameswoods Doe Oppo

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Transcript of Jameswoods Doe Oppo