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BROWN WHITE & OSBORN LLP
KENNETH P. WHITE (Bar
No. 173993)
333 South Hope Street, 40th Floor
Los Angeles, California 90071-1406
Telephone: 213. 613.0500
Facsimile: 213.613.0550
kwhite@brownwhitelaw.com
Attorneys for Defendant
JOHN DOE

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

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FOR THE COUNTY OF LOS ANGELES

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JAMES WOODS,
Plaintiff,

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v.

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Case No. BC589746

JOHN DOE, ET AL.,
Defendants.

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Assigned to: Hon. Mel Recana

DEFENDANT JOHN DOE’S
OPPOSITION TO PLAINTIFF’S EX
PARTE APPLICATION TO
CONDUCT EARLY DISCOVERY;
DECLARATION OF KENNETH P.
WHITE; EXHIBITS
Date:
Time:
Dept.:

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August 27, 2015
8:30 a.m.
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DEFENDANT JOHN DOE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO CONDUCT EARLY DISCOVERY
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MEMORANDUM OF POINTS AND AUTHORITIES

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I.

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INTRODUCTION

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

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

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

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

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

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

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

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

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

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trope:

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

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others cannot say it to him. He has sued Mr. Doe for a derisive tweet referring to him as
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DEFENDANT JOHN DOE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO CONDUCT EARLY DISCOVERY
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“cocaine addict James Woods still sniffing and spouting” in the course of political back-and-

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

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

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on Twitter.

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

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

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

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request, or at a minimum order a briefing schedule to address it:
x Plaintiff cannot prevail on his claims. It is axiomatic that only provably false

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

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

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

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

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

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

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

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

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

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he has no case.
x Plaintiff will be filing an anti-SLAPP motion on September 1, 2015, which will

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stay discovery and render the issue moot.
x Mr. Doe, and Twitter, should have a full and fair opportunity to address the First

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Amendment issues raised by Plaintiff’s request.

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

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

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//

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

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STATEMENT OF FACTS

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A.

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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:

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

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

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

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

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

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

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Md. 2011).)

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

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Twitter user under the name @AbeListed.

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

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

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

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someone.”2

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B.

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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

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

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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/.
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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-becameobama-s-biggest-twitter-troll.html.

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DEFENDANT JOHN DOE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO CONDUCT EARLY DISCOVERY
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incorrect conservative voice on Twitter.”4 He has suggested publicly on Twitter that his

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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-inthat-town-again/#ixzz3k38zCMXD.
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“Woods, who recently appeared in White House Down and Jobs, was replying to a tweet that
questioned the wisdom of his outspoken declarations. "I don't expect to work again. I think
Barack Obama is a threat to the integrity and future of the Republic. My country first." The
Guardian, James Woods Claims Hollywood Is Against Him After Anti-Obama Tweets,
retrieved from http://www.theguardian.com/film/2013/oct/10/james-woods-tweets-barackobama.
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Twitch.com, ‘For the Record’: James Woods Explains Why He’s Giving Up on The MSM and
Sticking To Twitter, October 11, 2013, retrieved from http://twitchy.com/2013/10/11/for-therecord-james-woods-explains-why-hes-giving-up-on-the-msm-and-sticking-to-twitter/.
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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-mindlessbile-james-woods-retweets-liberal-followers/.

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DEFENDANT JOHN DOE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO CONDUCT EARLY DISCOVERY
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Perhaps because he’s so consistently combative, or perhaps because he’s played the

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

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

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

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

Plaintiff’s Claims Against Mr. Doe

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

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

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

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

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

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

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

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

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factual assertion that Plaintiff uses cocaine.

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

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

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Previously Plaintiff attempted to subpoena Mr. Doe’s identity from Twitter; Twitter
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DEFENDANT JOHN DOE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO CONDUCT EARLY DISCOVERY
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responded with objections, pointing out that Plaintiff’s subpoena was defective in multiple

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

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

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(Exhibit O to White Decl.).

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III.

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ARGUMENT

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

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

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

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

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

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when Mr. Doe files his anti-SLAPP motion.

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A.

THE FIRST AMENDMENT PROTECTS MR. DOE’S ANONYMITY

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

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

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

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

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

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

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216, 228. That right protects anonymous speech online:

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Both California courts and federal courts have recognized the value in

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extending the protections afforded anonymous speech to speech made via the

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

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

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

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

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

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individual behavior without fear of intimidation or reprisal. In addition, by
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DEFENDANT JOHN DOE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO CONDUCT EARLY DISCOVERY
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concealing speakers’ identities, the online forum allows individuals of any

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

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

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

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

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

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

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1092.) (Digital Music News LLC, 226 Cal.App.4th at 228-29.)

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

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

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the privacy right involved. Digital Music News LLC, 226 Cal.App.4th at 229-230. In the

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

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

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Internet Service Provider. (Krinsky, 159 Cal.App.4th at 245-46.) If the Plaintiff can’t do that

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

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

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

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

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

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B.

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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

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

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

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v. Superior Court (2008) 163 Cal.App.4th 1342, 1356.) Mr. Doe’s “cocaine addict” tweet – a

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

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

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DEFENDANT JOHN DOE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO CONDUCT EARLY DISCOVERY
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Case after case has recognized that speech on internet forums like Twitter is likely to

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

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couched in bombastic language:
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In Krinsky, the court found that posts on a Yahoo! Finance board that accused the

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

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

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

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

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their supporters.” (159 Cal.App.4th 1175-76.) (noting that debate or criticism often

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becomes “heated or caustic” on the internet).
x In Summit Bank v. Rogers (2012) 206 Cal.App.4th 669 (2012), the court reviewed

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

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

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

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

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

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

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

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some special meaning.” (Id.)
x In Chaker v. Mateo (2012) 209 Cal.App.4th 1138, the court found that an ex-

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

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

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

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

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

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

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at 1149.)

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DEFENDANT JOHN DOE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO CONDUCT EARLY DISCOVERY
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A statement is not automatically one of opinion because it is made on a forum like

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

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

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Papaliolios (2013) 218 Cal.App.4th 418, 433-34 [reviewing factors that might make internet

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

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

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

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

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

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statement of fact by readers. (Krinsky, 159 Cal.App.4th at 1162; Summit Bank, 206

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Cal.App.4th at 697.) It wasn’t professionally uttered, but was part of a series of tweets with

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

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

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

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

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

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

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

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

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

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

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

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petty and malicious.

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

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

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

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

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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.)

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

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facts. (Tamkin v. CBS Broadcasting (2011) 193 Cal.App.4th 133, 148.)

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

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Doe’s anonymity.

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C.

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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

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

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

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

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

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

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

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

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

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

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

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

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patently hyperbole and insult, not a statement of fact.

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D.

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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

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

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

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

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parte.

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