Columbia Global Freedom of Expression seeks to contribute to the development of an integrated and progressive jurisprudence and understanding on freedom of expression and information around the world.  It maintains an extensive database of international case law. This is its newsletter dealing with recent developments  in the field.

“Although it is said that laughter is the best medicine, examples from our work show it is often a bitter pill to swallow,” Barbora Bukovská, Senior Director for Law and Policy, ARTICLE 19, addressed our audience at Columbia University last Friday.

In case you missed it: We gathered to discuss humor and its complexity in the context of free speech and the digital landscape at Panel and Roundtable What’s in a Joke? Humor in Free Speech Jurisprudence and Content Moderation. We welcomed humor researchers, lawyers, judges, activists, free speech scholars, and other guests. More than one hundred people followed us online on Zoom, X, YouTube, and through Internet Society livestream channels.

The event offered a unique opportunity to preview – as well as question and critique – the forthcoming toolkit on humor in free speech jurisprudence and content moderation, authored by Alberto Godioli (University of Groningen), Sabine Jacques (University of Liverpool), Ariadna Matamoros Fernández (Queensland University of Technology), and Jennifer Young (University of Groningen). The toolkit’s approach is interdisciplinary and turns to perspectives from literary studies, sociology, communications, and the law. We invite you to watch the full recording of the panel and roundtable discussions on YouTube or Vimeo.

This week, we are focusing on strategic lawsuits against public participation, or SLAPPs, – vexatious legal tools used to stifle public debate. They target journalists, activists, human rights defenders, and other critical voices and are a surging global phenomenon – from Ecuador to the Gambia to Serbia to Turkey to Thailand.

The cases we are sharing with you are examples of SLAPPs from the United States. One of them, Roy and Kayla Moore v. Sacha Baron Cohen, spans humor and critique of a public figure: The US District Court dismissed Judge Moore and Kayla Moore’s claims of defamation, intentional infliction of emotional distress, and fraud against comedian and actor Sacha Baron Cohen, determining that the interview in question was a “satire,” through which Cohen did not make any “independent factual assertions” or comment on the “truth or accuracy of the allegations.” To dive into more case law on SLAPPs, revisit our Special Collection Paper “How are courts responding to SLAPPs? Analysis of selected court decisions from across the globe.”

In Memoriam. Freedom of expression community lost two icons this month – Richard N. Winfield, US First Amendment Lawyer and Founding Director of the International Senior Lawyers Project (ISLP), and Helen Darbishire, Founder and Executive Director of Access Info. Before leading ISLP and its many interventions in free speech cases nationally and internationally, Richard served as general counsel for The Associated Press for thirty years. Under Helen’s leadership, Access Info has become a global reference in defense of the right to information. We are honoring the legacy of both.

Last Friday, Hawley Johnson (CGFoE) moderated the discussion on What’s in a Joke? Humor in Free Speech Jurisprudence and Content Moderation toolkit presented by its authors – Alberto Godioli (University of Groningen), Sabine Jacques (University of Liverpool), and Jennifer Young (University of Groningen).

 

At a roundtable on humor and free speech moderated by Laura Little (Temple University Law School), Mehdi Benchelah (UNESCO), Judge Darian Pavli (European Court of Human Rights), Lady Justice Stella Isibhakhomen Anukam (African Court on Human and Peoples’ Rights), and JUDr. Barbora Bukovská (ARTICLE 19) joined us.

At a roundtable on humor and free speech moderated by Laura Little (Temple University Law School), Mehdi Benchelah (UNESCO), Judge Darian Pavli (European Court of Human Rights), Lady Justice Stella Isibhakhomen Anukam (African Court on Human and Peoples’ Rights), and JUDr. Barbora Bukovská (ARTICLE 19) joined us.

The full recording is available on YouTube or Vimeo.

United States
CoreCivic v. Candide
Decision Date: June 14, 2022
The US Court of Appeals partly affirmed the district court’s dismissal of CoreCivic’s defamation claims against Morgan Simon and Candide group under California’s anti-SLAPP statute. Morgan Simon, the co-founder of Candide Group, had published three articles on Forbes.com criticizing CoreCivic, an operator of private prisons and immigrant detention centers in the US. Simon claimed that CoreCivic managed detention centers, which were involved in separation of families, profited off mass incarceration and lobbied for harsher criminal justice and immigration law. Simon added a clarification in the article that “the terminology of ‘family separation’ tends to focus on the detention of children” while including a direct quote from CoreCivic that “[it] does not and has never housed children separated from their parents.” CoreCivic argued that these statements implied that it detained children separated from their parents, which was false. The Court of Appeals rejected CoreCivic’s argument since it had failed to adequately plead the falsity of allegedly defamatory statements. The court determined that the statements did not defame CoreCivic by implication as interpreting these statements in any other way than suggesting that “CoreCivic did not detain such children” would be unreasonable. The court remanded the judgment back to the district court with respect to CoreCivic’s defamation claims regarding lobbying statement. Judge Bea dissented from the majority opinion on the issue of CoreCivic’s implied defamation claim.

Roy and Kayla Moore v. Sacha Baron Cohen
Decision Date: July 13, 2021
The US District Court dismissed Judge Moore and Kayla Moore’s claims of defamation, intentional infliction of emotional distress and fraud in a case against Sacha Baron Cohen, since their claims were barred by the Standard Consent Agreement (SCA) and the First Amendment respectively. Cohen interviewed Judge Moore in which he used a wand that supposedly detected enzymes secreted by sex offenders and pedophiles. Cohen’s conduct was related to press reports of sexual misconduct accusations against Judge Moore which surfaced during his 2017 election campaign. Judge Moore asserted that Cohen had defamed him by falsely painting him as a sex offender. While Judge Moore’s claims were barred by an agreement signed by him prior to the interview, his wife, Kayla Moore’s claims were barred by the First Amendment as the alleged conduct discussed issues of public concern. The court observed that claims of reputational injury stemming from satirical publications related to are usually dismissed since they do not contain statements that could be reasonably interpreted as stating facts by the viewers. In the present case, the court determined that Cohen’s interview was a “satire” on the sexual misconduct allegations faced by Judge Moore. The court noted that Cohen had a history of portraying “ridiculous characters conducting absurd interviews of seemingly unsuspecting individuals” in different episodes of the series ‘Who is America’. The court adjudged that it was “abundantly clear” to a reasonable viewer that Cohen used humor to comment on the accusations against Judge Moore, and that he did not make any “independent factual assertions” or comment on the “truth or accuracy of the allegations.”

Bauer v. Brinkman
Decision Date: April 16, 2021
The Supreme Court of Iowa (US) affirmed the lower court’s dismissal of Richard Bauer’s defamation claim against Bradley Brinkman, holding that Brinkman’s use of “slumlord” on Facebook constituted protected opinion and rhetorical hyperbole rather than a factual assertion. The dispute arose when Brinkman called Bauer, manager of Bauer Apartments, a “slumlord” on Gabbie Lynch’s social media post because Bauer objected to the construction of a neighbouring dog care facility. The Court reasoned that the context surrounding the use of a term must be considered to determine whether it is protected as rhetorical hyperbole. The Court noted that his tone “was pointed, exaggerated, and heavily laden with emotional rhetoric and moral outrage,” thus alerting readers that the statements were expressions of personal judgment. The Court observed that on Lynch’s social media post there was no discussion regarding Bauer’s management of properties. The Court further noted that Brinkman did not attempt to provide any support for the statement that Bauer was a slumlord; therefore, a reader was alerted it was an insult and a “single, excited reference” rather than a factual assertion that he was an unscrupulous landlord.

Correction Note: Last week’s newsletter mistakenly referred to The Case of Schild & Vrienden (S&V) as a case from the Netherlands; a Belgian court issued the ruling.

● Upcoming Webinar – The Role of Justice Actors in Combating SLAPPs. How can judges, prosecutors, lawyers, and bar associations fight back against SLAPPs? The UN Special Rapporteur on the independence of judges and lawyers and the American Bar Association Center for Human Rights are gathering judicial and legal experts for a discussion this week. On October 28, 2024, Special Rapporteur Margaret Satterthwaite presented her recent report, Justice Is Not for Sale: the Improper Influence of Economic Actors on the Judiciary, to the UN General Assembly. She emphasized that powerful economic actors weaponize justice systems through SLAPPs, which “masquerade as a defense of private interests, but in fact seek to suppress legitimate criticism, oversight or resistance to [powerful economic actors’] activities.” At the webinar, Professor Satterthwaite will review the report’s findings, and panelists will share their thoughts on the role of justice actors in tackling SLAPPs. November 1, 2024. 9:00 AM ET. Register to join via Zoom.

● Serbia: Judge’s Lawsuits Set to Chill Press Freedom. In a joint statement, OBC Transeuropa, Free Press Unlimited, and International Press Institute express their solidarity with Serbian investigative media outlet KRIK and urge Serbian officials to ensure anti-SLAPP safeguards are in place. KRIK’s journalists are now dealing with 16 SLAPPs; two of the cases were initiated by Judge Dušanka Đorđević and her husband Aleksandar, a lawyer connected to the Ministry of Finance. The couple claimed data protection violations after KRIK had included the profile of the judge and details about her assets in the database that monitors the Serbian judiciary. On top of seeking penalties of €6,500 in damages, the plaintiffs ask the court to impose ten-month prison sentences and two-year bans on journalism. “The outcome will be a test for the Serbian judiciary’s independence and commitment to the rule of law,” the joint statement underscores.

● Türkiye: Parliament Expected to Vote on ‘Foreign Agent’ Law. The Committee to Protect Journalists (CPJ) calls on the Turkish Parliament Members to repeal the foreign “influence agent law” in a looming vote. The bill introduces a crime “against the security or political interests of the state” and carries severe prison sentences. Özgür Öğret, CPJ’s Türkiye representative, said the country is about to follow other states in “establishing a judicial tool for demonizing and censoring independent journalists and researchers who work with foreign partners or receive foreign funding.” Similar laws in Russia, Kyrgyzstan, and Georgia point to this dangerous regional trend. Last month, UN and regional human rights experts issued a joint declaration on Protecting the Right to Freedom of Association in Light of “Foreign Agents”/ “Foreign Influence” Laws in which the experts repeatedly underlined the harm and stigmatization of civil society that such laws provoke. In a recent ruling on Kobaliya and Others v. Russia, a case concerning Russia’s evolving “foreign agents” legislation, the ECtHR found violations of freedom of expression, freedom of association, and respect for private and family life.

This section of the newsletter features teaching materials focused on global freedom of expression which are newly uploaded on Freedom of Expression Without Frontiers.

UNESCO Issue Brief: The Misuse of Financial Laws to Pressure, Silence, and Intimidate Journalists and Media Outlets, by Edward Pittman and Elisa Juega. A new UNESCO issue brief outlines a growing trend in allegations of financial wrongdoing as tools to silence journalists. Based on 120 relevant cases dated between 2005 and 2024, the brief detects a significant increase in cases between 2019 and 2023 – 60% of those reviewed. The most frequent charges are extortion, tax evasion, and money laundering; among other allegations identified are blackmail, embezzlement, and foreign funds obtained illegally. Regionally, more cases occur in Asia and the Pacific, and Eastern Europe and Central Asia. As a tactic to target journalists, the misuse of financial laws has features different from other ways of silencing critical voices: accusations of financial wrongdoing almost exclusively come from state actors; unlike defamation charges, such accusations do not require an established connection between journalists’ published work and the charge; facing the complexity of alleged financial crimes, journalists and media outlets need tax and other legal expertise, which they often do not have access to.

● Media Freedom and Pluralism in the Republic of Cyprus: An Overview, by Natalie Alkiviadou. In this overview of the media landscape in the Republic of Cyprus published by the International Press Institute, Natalie Alkiviadou, Senior Research Fellow at the Future of Free Speech project at Vanderbilt University, points to vulnerabilities and structural problems. SLAPPs also threaten media freedom in Cyprus in the current absence of anti-SLAPP safeguards. Natalie brings up two examples: one is a pending case concerning journalists Sara Farolfi and Stelios Orphanides and their investigation into a Libyan-owned company in Cyprus; the other is a SLAPP initiated by former President ​​Nicos Anastasiades against Makarios Drousiotis, a prominent journalist and the author of Mafia State – a book that led to criminal proceedings against Anastasiades.

● Job Opening – Legal Program Manager at TrialWatch. The Clooney Foundation for Justice is hiring a Legal Program Manager for the TrialWatch project to support and expand their global trial monitoring. A human rights lawyer in their early to mid-career years committed to “promoting fair trial rights across the world and reforming unjust legal systems” will be the ideal candidate. Apply here.

● Job Opening – Research and Policy Program Coordinator at Knight Institute. The Knight First Amendment Institute is accepting applications for the Research and Policy Program Coordinator position. The Coordinator will lead and facilitate a range of production and publication processes, report to the Research Director and the Policy Director, and work closely with the research program team and contributors. Learn more here.

This newsletter is reproduced with the permission of Global Freedom of Expression.  For an archive of previous newsletters, see here.