BOXING DAY BRAWLIN': Johnson v. BuzzFeed/Huffington Post
Why we will appeal en banc the recent ruling by the 5th Circuit
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A 2-to-1 recent ruling by the 5th Circuit in Johnson v. Huffington Post didn’t go my way, at least at first blush. For those unaware I am locked in a bitter fight with the Huffington Post after they smeared me as a white nationalist and a Holocaust denier several years ago. The Huffington Post was sold — really given — to BuzzFeed so my one lawsuit could well wind up ending Huffington Post and BuzzFeed.
It’s more complicated as so many things are, and I intend to see it through to the end. Whose end — The Huffington Post/BuzzFeed or mine — remains to be seen! Stay tuned!
Naturally my lawyer — the ultra capable Joe Sibley — and I will be appealing en banc, which I’m told means that the whole Fifth Circuit gets to weigh in. I am not a lawyer (thank the Gods!) but I’m told this means that all 17 judges or so get a say.
Odds there are pretty good, in light of the changes to the 5th Circuit. Yes, the 5th Circuit has become a lot more right-wing in recent years, whatever that means. Predictions are hard, especially about the future. Who knows what will happen? That’s what makes it so much fun.
I address myself today to those well meaning centrist Democrat and moderate Republican patriots who put aside party to pursue kindness, mercy, and the virtues generally. This posting is for you.
This issue of so-called media organizations smearing people need not be a partisan issue, and indeed ought not be. Real journalists seek truth. They admit error and they move humbly through the world.
In the spirit of full disclosure and contrary to what you may have written about me I am a bit confused politically. Just as I can order one of a few hundred things at Starbucks so too do I think I have the right to order off menu politically. I’m not here for red team or blue team.
I do tend to like strong personality types because they have that fire in the belly. I’ve donated to the extreme right and to the extreme left and a few in the mushy middle. I’m probably the only person who has backed both Steve King of Iowa and Alexandria Ocasio-Cortez of New York. I have backed both Senators Ted Cruz of Texas and Sheldon Whitehouse of Rhode Island. I am drawn to the strong horse and though I donate politically, I rarely vote. If voting were important do you really think they would let us do that? I’m independently minded and prefer my independent streak.
My bipartisanship really comes from a place of no partisanship. It isn’t easy, to be sure. I try to treat people as individuals who have their own way of approaching the world. I like to try on perspectives like you try on clothes. I don’t think any party or ideology has a monopoly on what’s true.
We are human beings trying, often in vain and in error, to figure it out. Even journalists. Mercy, kindness, humility, honesty — these are the virtues to cultivate.
We need an honest press in this country and so we need to take the issue of misinformation or disinformation more seriously. If Republicans are formed by reflection and choice how can we choose well if we have poor information?
Gresham’s law governs money. It’s the idea that “bad money drives out good money.”
I think the same is true of information — please call it Johnson’s corollary — “bad information drives out good information.”
You tend to hoard the truth and keep it to yourself, especially if the bad information could be threatening to the mob or the powers that be. Less quality information leads to poorer decision making, more incompetence, and ultimately a weakening of social trust.
There’s even a paper on this very topic.
The post-truth era has taken many by surprise. Here, we use massive language analysis to demonstrate that the rise of fact-free argumentation may perhaps be understood as part of a deeper change. After the year 1850, the use of sentiment-laden words in Google Books declined systematically, while the use of words associated with fact-based argumentation rose steadily. This pattern reversed in the 1980s, and this change accelerated around 2007, when across languages, the frequency of fact-related words dropped while emotion-laden language surged, a trend paralleled by a shift from collectivistic to individualistic language.
This decline in rationality coincided with the rise of divisive technologies — tabloid culture, 24 hours infotainment, and social media — which made us, in a McLuhanite way, made us more hateful and polarized.
I suspect this decline in rationality is ultimately how civilizations die — when neighbors fear talking to one another or can’t trust one another or can’t gather in His name. Blessed are the peacemakers and goddamn the dividers. Empathy comes from loving your neighbor as yourself. Is that possible in a world where you don’t know him? Instead, we hunker down. Misinformation is both a source of pollution and poison. It’s not a coincidence that foreign actors invest so heavily in using social media or tabloids to cause chaos.
Normal people understand that the rumor mill is not the Huffington Post is not the New York Times is not the scientific method is not the Gospel truth. And normal people are more forgiving. As human beings we understand gradation and context. We get that things, well, they might be more complicated than the musings of a twenty-something blogger wannabe from Brooklyn or the Tenderloin.
But, alas, on Google all context is stripped. This is why I’ve long argued for a right of rebuttal and not necessarily a European right to be forgotten. I don’t want to be forgotten but I do want a fair hearing. I do want a right to forgive and be forgiven. If the Huffington Post libels me I should be able to have a Crome or Brave plug in whereby I can offer my version of events. Readers can toggle between the two versions at their heart’s content. You could even imagine a response to a response and so on.
Taking care of pollution requires careful regulations and so that’s the case with libel. You shouldn’t be able to call someone a white nationalist or a Holocaust denier and then run away. You should have to put some skin in the game, or at the very least call for comment. Responsible journalists — like those at Reuters, L.A. Times, New York Times, Washington Post, and Wall Street Journal — all call for comment. The ability to smear people with impunity is a form of mob activity. It’s reputational arson. It’s past time to put out the fires.
What we really ought to consider is how the mob (and mobbed up foreign actors) use tabloids to achieve their ends and how the Huffington Post is mobbed up.
We might consider Arianna Huffington herself whom The Guardian once called “the most upwardly mobile Greek since Icarus.” Unlike Icarus Huffington seems to get out just in time. At least, thus far.
First there was her strange marriage to Michael Huffington, a man who was raised Presbyterian, became Episcopalian at age 38, and ultimately joined the Greek Orthodox Church in 1996 after a visit to Istanbul, Turkey.
Michael had served as a senior Defense official during the Reagan era and then, upon divorcing Arianna, came out as bisexual. OK! This is, after Michael sold his father’s domestic oil operations to a French company and then the entire family business to a Taiwanese one and ran unsuccessfully against Dianne Feinstein for the U.S. Senate.
Arianna did OK too. Then there was her foray with blogging where she left AOL holding the $315 million bag. (For comparison Jeff Bezos bought The Washington Post for $250 million.)
Then her strange time on the Uber board and her palling around with Masha Drokova, Putin’s Charlie Kirk. Did I mention she wrote a book about Picasso? And allegedly hired PIs to spy on people?
I’m told she’s working on a startup to encourage people to go to sleep because no foreign adversaries of ours want to put us to sleep so they can take power.
Super normal behavior guys. Not a spy or an agent of a foreign power, no, not at all!
As it happens I am not the only person suing the Huffington Post, nor even I am the only person suing the HuffPo in the 5th Circuit.
I have company in Derrick Evans, a black environmentalist and academic from Gulfport, Mississippi, who has falsely been accused of selling drugs. Derrick, have your people call mine!
Eric Wemple of The Washington Post expands what Ashley Feinberg, formerly of Huffington Post, got wrong in her drive by characterization of Professor Evans while trying to tear down the Supreme Court nomination of Brett Kavanaugh.
…Feinberg got specific in reference to one incident: The April 1984 death of David Anthony Kennedy of a drug overdose — from cocaine, Demerol and Mellaril — in a Palm Beach, Fla., hotel suite. He was the 28-year-old son of Robert F. Kennedy. Here’s how Feinberg phrased the connection between that tragedy and Georgetown Prep:
Two Prep students — David’s brother Doug, and his friend Derrick Evans — had helped David Kennedy score the coke. Doug, class of ’86, had been at the center of Georgetown Prep social life, which the former student characterized as “weekly frat-style parties with the neighboring sister schools and other private schools,” often hosted by Kennedy at his family’s house in McLean, Virginia.
Evans is suing HuffPost and Feinberg over the characterization: “As a result of [HuffPost’s and Feinberg’s] knowing and reckless publications of outrageously false and defamatory statements, Mr. Evans has suffered significant injury to his reputation and emotional distress, for which he seeks compensatory damages, as well as punitive damages in an amount sufficient to deter such egregious conduct in the future,” notes the complaint signed by attorney John P. Sneed of Wise Carter Child & Caraway, P.A., of Jackson, Miss.
According to the complaint, Evans was among the “only black students” at Georgetown Prep when he arrived from his native Mississippi on a full academic scholarship in 1982. Evans would go on to work as a history professor, lecturer and co-founder of a middle school for low-income kids in Boston. And as for allegedly helping to score cocaine for David Kennedy: “Had Ms. Feinberg or her editors at HuffPost undertaken even the most basic internet search of publicly available articles concerning the investigation into David Kennedy’s death, they would have learned, if they did not already know, that Mr. Evans actively assisted law enforcement in identifying and prosecuting the individuals who actually sold the illegal narcotics to David Kennedy,” argues the complaint.
Did you catch that? Feinberg’s target actually helped law enforcement prosecute the drug dealer! It gets far worse.
Feinberg and her family have long had mental health issues — her father and her sister both killed themselves. Believe me, I’m sympathetic, and found my own mental health severely challenged by the 24-7 news cycle, social media, and the lockdown. (I’ve had a huge recovery ever since I ignored them all.)
So I ask with a lot of understanding: What responsibility does the Huffington Post have to Ashley to make sure she doesn’t harm herself from what she’s posting online?
In a sense, Huffington Post, with its incessant demands for content for its youthful writers, is taking advantage of them. They say journalists publish pieces for hate clicks so they can make money but we all know that no one in online journalism makes much money. This is more analogous to someone walking up every day and dancing up to the guillotine, hoping that it won’t suddenly cut their head off.
Feinberg’s reporting is the sort of sloppy reporting we’ve come to expect from the Huffington Post. It’s why the publication lost $20 million in 2020 and why it was essentially gifted to BuzzFeed. BuzzFeed, in turn, has lost more than 40 percent off of its SPAC target. The company faces increasingly dire and mounting financial problems. Good.
Having worked to bankrupt Gawker I look forward to bankrupting BuzzFeed/Huffington Post too. Somebody has to do it. Might as well be me.
This Buzzpo/HuffFeed (lol) merger gave me a new opportunity — and responsibility. Careful readers of this site know that I considered suing Ryan Mac of BuzzFeed after he published hacked data (likely from the Israelis or Emiratis) from Clearview and even made a searchable database of the stolen information.
To my utter delight my Huffington Post grants me the opportunity to take out BuzzFeed too! Alas Ryan got away and works for the New York Times but I’ll be keeping a careful eye on him. Please let me know if you see him slipping up.
The fly by night nature of journalism is a system wide problem. Irresponsible behavior becomes a way whereby journalists decamp to more powerful publications. Incredibly BuzzFeed’s own editor-in-chief Ben Smith ran to the New York Times after he published the discredited Russian collusion dossier, itself now an apparent work of Russian intelligence.
These lack of standards and of accountability mean that most of these publications wind up being the witting or unwitting tools of foreign intelligence operations who are only too able to play the bloggers to take out their targets.
I take this very seriously. Smearing those of us working on essential technology imperils our national security and even our physical health.
This is precisely what happened to me.
When I met with members of Congress to discuss genetics it was to prepare our country for the sorts of calamities that I thought might be coming thanks to what I knew about the Chinese bioweapons program. I told Congressman Andy Harris and Phil Roe about the rise of companies like Beijing Genomics Institute (BGI) which I knew was working to build massive databases. The FBI later shared a very similar warning to mine. China wants to control the future of Americans’ health care.
And lo and behold, what do you know, “Bam!” Here comes the pandemic.
While I couldn’t do much to change the discourse around coronavirus my company Traitwell.com did ultimately release an app so people could make an informed decisions about their likelihood of contracting bad covid. That company, of which I am CEO, continues to grow.
If you have your DNA from 23andme.com or Ancestry we’d love to help you (or your family) make informed decisions about your covid risk (as well as your educational attainment). We’re soon to launch our own kit. The tagline of Traitwell sums it up: “Know your DNA. Know yourself.”
The Covid app has done pretty well but we are still jabbing everyone instead of sequencing them and testing them. How interesting that we live in a world where Facebook says that giving people their genetic likelihood of contracting a fatal disease is misinformation. Could it be that Big Pharma owns this country?
Notwithstanding The Huffington Post hit jobs on my reputation I remain an investor in numerous genetics companies. (In addition to Traitwell I often invest in companies that serve the national interest. If you’re interested please write me directly.)
These genetics companies are working right now to solve crime, to track the pandemic, and to build biobanks to help us identify those least of these most in need of help.
That fake bad reputation among fake journalists harms those least able to help themselves. It also cost me tens of millions of dollars and limited my freedom to operate in the service of our country.
The knock-on effects are significant. By blacklisting me Silicon Valley venture firms — themselves heavily compromised by Chinese, Israeli and Russian penetration and invested in rival foreign facial recognition firms — decided not to invest in our game changing facial recognition company, whose main use is to protect our children. I had to hide my own involvement in the company but this, too, leaked.
My fellow Clearview.AI cofounder Hoan Ton-That, brilliant in technology but initially unsophisticated about the intelligence implications of facial recognition, was forced to go take UAE money when I came under sustained assault. Hoan brought in Richard Clarke whose firm Dark Matter is under FBI investigation. According to a 2019 Reuters report Clarke can credibly be called an Emirati spy — just like he can be called an Israeli asset before that. Needly to say the Emiratis have been extremely bad actors and continue to weaponize our court system and media environment.
As life becomes more difficult for journalists financially they turn to foreign backers (or billionaires backed by foreign interests) to finance their operations. These entities then can’t credibly be called media businesses in any meaningful sense and so they are likely to make serious mistakes (or to weaponize
When media publications make huge mistakes they ought to go out of business. I know a bit about that, too. When my subordinate published wrong information about the Charlottesville carnage without even bothering to consult me the publication I founded had to go out of business. This was the right approach. I do not believe that rank-and-file journalists should pay that price alone. That responsibility falls to editors and publisher.
We need fewer publications getting it wrong — and so many more empowered to get it right. I do not fully understand why it falls to me to hold the press accountable but it’s not a responsibility I turn away from. In fact, I rather like it.
It’s my view that we will see more publication killing lawsuits against the media in the not so distant future and that these lawsuits stand a strong case of restructuring not just the media but the Internet itself.
Peter Thiel, Hulk Hogan and my efforts to end Gawker were the beginning of a larger conversation about whether a free press means a press free from consequences.
We’ve seen foreigners weaponize our libel laws. We will begin to see Americans use those same libel laws to take down mobbed up publications.
I support making bloggers accountable.
Let’s return to Johnson v. Huffington Post and explore the issues present in the latest ruling.
Judge Jerry E. Smith, aged 75, wrote the opinion for the 5th Circuit. He was joined by Judge Carolyn Dineen King, aged 83. Neither Smith nor King have much of a technical education.
No, I don’t think it a coincidence that the youngest judge on the three judge panel — Judge Catharina Haynes, aged 58, went to Florida Institute of Technology, from which she graduated, aged 19, first in her class. It is she, not her ancient colleagues, who understands that Johnson v. Huffington Post is about reputation on the Internet and what redress normal, private people might have against injurious publications publishing on the Internet.
King is an interesting figure. She was married to fellow 5th Circuit Judge Thomas Morrow Reavley who remained the longest serving federal judge in the country before he died last December at 99 years old! His obituary is worth reading in its entirety but still you have to wonder what a 99 year old has to contribute. We have a kritarchy and a gerontocratic one at that.
You can review Judge Smith’s long career here. It’s pretty clear from it that he’s a more libertarian member of the 5th Circuit, as evinced by his students, including George Mason professor Ilya Somin who defends him when he sounds off on President Obama.
Smith’s friends rather implausible argued that Judge Smith, who had served as a Republican Party activist before Reagan nominated him to the bench, wouldn’t allow politics to affect his work. Why he’s so impartial that he won’t even recommend restaurants in Houston or New Orleans, they say. Weird! When someone has to say you are apolitical, you are usually pretty political.
You can listen to him here.
Judge Smith is also heavily involved in the controversial Federalist Society, which is a dark money group funded by right-wing billionaires. (It’s also the same group that picked nearly all of Trump’s court picks so maybe I shouldn’t be hoping for the best en banc.)
Smith even moderated a panel on libel law where he admits to reading the libertarian Volokh Conspiracy nearly every day.
Smith can reliably be counted on to rule however Conservatism Inc. — Libertarian Edition wants him to — on affirmative action and Obamacare, especially. Indeed let’s not forget that judicial activists are on the right, as well as the left. Judge Haynes rightly called him out for being a policymaker on the bench. If you sell a product to the nation you should be accountable to the nation as a whole.
One of Smith’s worst rulings in particular stands out to me. Smith ruled in favor of the cigarette companies after a class action lawsuit was filed by smokers who had died or suffered injuries as a result of the tobacco companies lying about the harmful, addictive effects of nicotine. The cancer stick providers were represented by Kenneth Law.
Smith said the Castano v. American Tobacco Company case hinged on “the novel and wholly untested theory that the defendants [the tobacco companies] fraudulently failed to inform consumers that nicotine is addictive and manipulated the level of nicotine in cigarettes to sustain their addictive nature.”
Smith made it all but impossible to hold the tobacco companies accountable. We know how history unfolded — a massive $206 billion settlement against the tobacco companies just two years after Castano.
Smith then was on the wrong side of history. As with the tobacco companies, so too with the Internet defamation industry, which metastasizes around us.
I prefer that term — Internet defamation industry — because journalists have standards. They have code of ethics. They eschew conflicts of interest.
I am proud to work with journalists. In the last few years I’ve spoken to reporters from the BBC, CNN, The L.A. Times, The Financial Times, The New York Times, Politico (under the old management), The Intercept, The Wall Street Journal, The Washington Post, Reuters, The Rolling Stone (under the new management), and a host of independent journalists. Many of these journalists I consider if not personal friends, then at least warm fellow defenders of truth and the American way.
I’ve been quoted warmly, accurately, and hurriedly by these journalists. Sometimes they make mistakes. Hey, we are all human! But most importantly there are rules in engaging with these journalists. They have editors. They call for comment. They affix corrections. They behave transparently. They listen. A journalist who behaves in a responsible manner will never have a problem with me. I will even give them the benefit of the doubt if they make an honest mistake.
Unfortunately we live in a world where journalists are becoming few and far between and they are becoming more and more rare because Google and Facebook are killing their industry by robbing them of the ad revenue they depend upon.
In a world of Google libel laws need to become tighter, as they are in the UK. In a pre-Google era you could move to another state. I did just that when I was smeared in California and left for the great state of Texas. But you cannot escape the defamation in the Internet era. It follows you everywhere you go.
Smith compares the smearing of yours truly to that a Texan shopping in a store in another state but this isn’t a case about physical goods. It’s about the Internet. And besides, Google has operations in Texas.
That two federal judges — one nominated by Reagan and the other by Carter — came to the wrong conclusion about the impact of malicious articles on the internet is not altogether surprising. I doubt the elder judges experience Google searches when they apply for a job, or go out on a date, or meet someone new. Despite not being a public figure I have a Wikipedia page that is edited by foreign countries to defame me.
I am routinely described as a Holocaust denier and a white nationalist, especially on Twitter, even though I am the father of non-white children and currently dating a non-white woman. I cringe to think of how this will affect my daughter as she grows up. It is extremely unfair and disgusting.
It’s caused me a lot of mental anguish, affected my business relationships, and even made me consider taking my own life.
Judge Haynes, who dissented, gets it right.
She mentions the recent court case of Ford Motors Company vs. Montana Eighth Judicial District Court where the Supreme Court ruled 8-0 that there was personal jurisdiction when there’s a defective product that results in harm.
I’d argue that Huffington Post is a defective journalist product — it doesn’t follow any of the rules of journalism — and its defectiveness can be seen its failure to make any real money. That lack of real money, in turn, results in cutting corners, like fact checking.
Extending from the real to the virtual domain.
Judge Haynes makes mention of two cases.
Calder v. Jones (1984)
Hustler (Keeton) and National Enquirer (Calder) are mobbed up publications.
Haynes rightly focuses in on the Internet issue and how the Internet changes everything and nothing when it comes to businesses.
The reality of the modern world is that printed newspapers are far less common than virtual ones. But just as we are bound to apply constitutional provisions to modern situations—often, unimaginable to the founders—we are bound to apply Supreme Court and circuit precedent. Therein lies my disagreement with the majority opinion. Because I believe that modernity does not excuse our obligation to apply existing legal frameworks, I respectfully dissent.
…
“Grannies with cooking blogs,” the majority opinion warns, “should not, expect lawsuits from Maui to Maine.” At this point, we’re talking in circles. HuffPost is not a “grannie” with a passive “cooking blog.” It’s a publication. Of course, there must be some relatedness for personal jurisdiction. But there is, here. HuffPost is not accidentally found in Texas but is actively seeking Texas readers and, more importantly, the money from advertising to them. It benefits from its Texas readership through money made off of Texas-specific advertising; if it does so in Maui as well, so be it. It is not an accident that Texans can access HuffPost, and the approach HuffPost takes towards Texas is the modern equivalent of Keeton sending magazines to New Hampshire.
This case does not involve the individual author or a “grannie” who talks virtually to her friends in other states.
Haynes notes that Huffington Post isn’t exactly analogous to the Internet comments of your grandma. It’s not the New York Times or The Washington Post but it’s a real publication. It’s so real in fact that it lost $20 million! You have to be pretty real to be allowed to blow $20 million don’t you?
I think, in fact, a better way to think about it is a mobbed up publication.
The comparison to the Larry Flynt’s Hustler or The National Enquirer shouldn’t be understated. We have a lot of mobbed up publications running around our country, making a mockery of the First Amendment. What these journalists really want is the prerogative of the whore — freedom without responsibility.
No wonder so many of them are plugged into the oldest profession.
The late Larry Flynt has an FBI file that is, well, “absolutely wild,” according to Vice.com. And of course, Generoso Pope Jr, has longstanding ties to the mob. Pope got his funding from Frank Costello and the Luciano crime family.
You can get a sense of it by watching an interview with Mike Wallace and Generoso Pope and then the trailer for a new documentary on the National Enquirer.
Of the two documentaries on the National Enquirer I recommend Enquiring Minds: The Untold Story of the National Enquirer (2014) over Scandalous: The True Story of the National Enquirer (2019) because the former exists sort of before the Trump moment and is more helpful on the history.
You get a sense of how crazy the money is behind The National Enquirer and how it is a tool of both the mob and intelligence.
David Pecker, who until recently owned the National Enquirer, had deep connections to Israeli intelligence, too — connections which were probed by the Mueller report. Pecker’s National Enquirer became the sort of place where foreign actors could launder repetitional attacks on political adversaries and face few consequences.
Indeed one such repetitional attack was undertaken when the then richest man — Jeff Bezos — was targeted by the National Enquirer over his affair. The hope was to take Bezos out of contention for the JEDI DOD contract. That Oracle’s CEO Larry Ellison was explicitly bidding for that JEDI DOD project and that he has extremely close ties to Benjamin Netanyahu, the former Israeli prime minister, should not go unremarked. We cannot live in a world where foreign spies or hackers take data off your phone (à la Hunter Biden) or steal your diary (à la Ashley Biden) and then blackmail you with a hostile report in the American press or we will all have a Jeffrey Epstein in our pockets.
In the case of BuzzFeed/Huffington Post we have Ryan Mac trafficking in material stolen by foreign hackers from Clearview and then turning that very data into a search engine. That’s pretty much a hostile act by a foreign player against an American company and far from being punished, Mac was rewarded with a job at the New York Times.
We also have a concerted smearing operation running against Americans like yours truly and like Elon Musk. Again, BuzzFeed/Huffington Post participates in that smear job which imperils American security by making it impossible for Musk and other tech luminaries to operate.
The explicit question here is to what extent are our publications obliged to follow the norms of the profession. Norms are ultimately what beget rules and rules beget the law.
I believe in the rule of law. I welcome the opportunity to clear my name. And I look forward to helping other Americans get their day in court.