Friday, July 25, 2025
The process is the punishment
The Times reports on how Media Matters is crumbling under the weight of the barrage of legal action over its reporting on Nazi speech on Twitter–an ongoing lawsuit in the Northern District of Texas (with pieces on appeal in the Fifth Circuit), investigative subpoenas (claiming consumer fraud) from the Texas and Missouri AGs, and a new FTC investigation. The group has cut staff, may need to shut down (X demanded that in settlement talks), and has been overwhelmed with legal costs. On that last point, MM owes the Elias Group (the firm of Democratic voting-rights attorney Marc Elias) more than $ 4 million in fees (reduced to about $ 2.5 million) and has shifted its work to other groups. Mike Masnick questions (and has since 2023) whether Elias was the right firm to hire, given the specificity of First Amendment work.
Some thoughts:
• Most of the money in the X suit has been spent on procedural stuff. X judge-shopped to Reed O’Connor, who issued iffy-to-awful decisions refusing to dismiss for lack of PJ (awful decision–this was my Civ Pro final) and improper venue (ditto on both); refusing to enforce a forum-selection clause and transfer venue to the N.D. Cal. (dubious, tied to questionable litigation choices–the Fifth Circuit just mandamused O’Connor and told him to do a proper transfer analysis); denying discovery requests seeking member and donor lists (managed to get that one right, but barely); and denying a 12(b)(6) (a weak, simplistic decision, with a complete failure to address the First Amendment implications–not sure whether that can be blamed on MM’s attorneys).
• Masnick raised the prospect of “another Bollea” when the suit was filed, arguing that it requires a good First Amendment team. The Times story suggests we may be headed in that direction. The combination illustrates an important First Amendment principle–we need to defend speakers such as Gawker when it does something kind of sleazy because otherwise the machine comes for “reputable” speakers.
• Honestly, I was surprised some First Amendment firm or organization had not taken this pro bono or at some reduced cost, given the obvious First Amendment stakes.
• Here is where attorney’s fees come into play. MM brought a § 1983 action to enjoin the Texas subpoena in the D.D.C.; the court found personal jurisdiction based on the mailing of the subpoena. If MM prevails in that action, it might recover attorney’s fees.* Same with its action to stop the FTC investigation.
But the X suit creates the real money drain. So here is where the call for a federal anti-SLAPP statute comes into play. We need some fee-shifting in actions triggering First Amendment defenses, which would go a long way to tamping down on performative litigation. I need to think more about what that statute should look like and how to avoid unintended over-deterrence.
[*] Well, maybe. Under Lackey, MM no longer prevails if the D.D.C. grants a preliminary injunction and the AG moots the case by withdrawing the subpoena. On the other hand, perhaps the D.D.C. will not deem the case moot based on the mere withdrawal of the subpoena. This shows the problems and open questions surrounding Lackey.
Posted by Howard Wasserman on July 25, 2025 at 03:31 PM in Civil Procedure, Constitutional thoughts, First Amendment, Judicial Process, Law and Politics | Permalink
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