OpEd: Anti-SLAPP Laws & A Current Example Of Why Its Important

Recently Never Stop Media learned of a lawsuit filed against Mercado Media Productions LLC on the basis of “wantonness”.  The lawsuit filed on behalf of Matthew and Andrew Blevins who operate the YouTube channel “The Enforcer” claim that Mercado engaged in a defamatory statement accompanied with allegations of harassment, bullying and intimidation.  Read the article here:  https://neverstopvoices.com/blogs/news/mercado-media-facing-defamation-lawsuit

     NSM reached out to Matthew Blevins for comment regarding the lawsuit.  In an email exchange Matthew Blevins responded with the following quote: “The bottom line is Andrew Mercado defamed us in front of thousands and we intend on holding him accountable.  However, I cannot comment on details in the litigation.  Also, I’m sure you are already aware but I just want to remind you that republishing/repeating defamatory statements is defamation in itself.  As you have probably noticed, we are very vigilant about protecting our reputation.  We hope you exercise due diligence in verifying the accuracy of your reporting”.  

After the release of our article regarding the recent lawsuit, NSM was sent communication from Matthew Blevins to Mercado Media Production LLC that read: “I also saw that you collaborated with a local troublemaker (that calls himself a journalist) to create a fake news article to spread your defamation around to a larger audience.  You shouldn’t have done that.  And since you continue to harass us, I’ve requested a copy of your military service records.  Do you want to go ahead and forward me a copy of your DD214?  The department of records said it would take a week or two to get the documents”.

Trouble maker?  Calls himself a journalist? Fake news article? Was this opinion or the start of False Light and Defamation on their part against Never Stop Media?  As a journalist having written a sound proof article, NSM gave Matthew Blevins the opportunity to comment on various aspects of his email to Mercado, so we wrote the following: “I wanted to follow up to see if you had a comment regarding your recent “harassment” email to Andrew Mercado?  Your claim in the lawsuit is that Andrew Mercado is continuing to harass, bully, and intimidate you and your brother Andrew and that in some way “invading your privacy”  Do you consider threats to release his military records an invasion of his privacy?  When you continuously send Andrew Mercado emails do you think that a judge could deem those communications as “harassing” and how will that weigh in with the current lawsuit and the outcome of the case?  Do you think your continuous contacting Andrew Mercado fits the Alabama Harassing Communications Statute Section 13A-11-8?”

Blevins fired back with the following response: “This is your first and only warning to stop contacting me.  Any further communications will be deemed harassment and I’ll take appropriate action to address it.  In the meantime, I’ll be meeting with my counsel to discuss my legal options regarding your defamatory article.  If I choose to take action, you’ll receive a letter from my counsel shortly”.

Now, these are very serious allegations and threats that NSM does not take lightly, so NSM responded with the following:  “As a journalist I have every legal right to contact a subject of an article to inquire for comment.  I’ll use your response as a comment for any future articles I may write regarding this lawsuit that I also have every legal right to cover.  I am curious though as to which element(s) of the article you find to be “defamatory”?  Please be specific so that as a company we can look into all remedies should there be a need for any.  Was it just unflattering as to the factual nature that offends you where you believe you have legal right to take legal action or are you just following in the documented history that the Blevins family has when it comes to filing lawsuits against people who say/write unflattering factual things about them?  Sending me empty threats Matthew won’t get you very far.  I’m far more versed in law than Mercado and I have a wicked legal team with a better track record of winning than Daddy does.  So please, let me know where you believe NSM made a mistake in our reporting, and if it needs to be corrected we will correct it.  Otherwise, please don’t threaten me, it hasn’t ended well for others who have done the same.  I’ll look forward to your timely response”.

While we continued to try and maintain professionalism attempting to get an actual comment or a description of the alleged defamatory statement, NSM was met with more threats, intimidation tactics and name calling by Matthew Blevins.  NSM attempted to contact Matthew Blevins with legitimate business purpose for this article and received quotes from Blevins stating: "kiss my ass".

Accusations of harassment and defamation thrown once again at Never Stop Media.  We have been here before with an all too familiar case involving CJ Halliburton of CJTV.  Halliburton attempted this same tactic in a Wisconsin Circuit Court where he lost against NSM.  Read The Article Here:  https://neverstopvoices.com/blogs/news/what-really-happened-with-cjtvs-restraining-order-against-me


Let’s add a bit of context here for the reader which will lead to what this article is actually about using the current situation.  After the release of our first article, doing some more investigative work and with the help of confidential sources, NSM found some very interesting history with the attorney representing Matthew and Andrew Blevins.  That attorney is none other than their father, Jerry M. Blevins.

In November of 1996 Jerry M. Blevins’ paralegal, Mary Parks, began complaining to Blevins that the smoke from the smoking lounge near her office was irritating her allergies.  Parks aimed her complaint towards the management of the Bell Building in Montgomery owned by W.F. Barnes Corporation.  When the issue was not resolved to Parks’ satisfaction, she enlisted the aid of her employer, Jerry M. Blevins.  On February 20th 1997, Blevins wrote to Barnes stating that Ms. Parks demanded that smoking on the second floor of the Bell Building cease at noon on that date with a demand for $25,000 in settlement.  On February 21st 1997, Blevins wrote to Barnes again, stating that the settlement offer was withdrawn and that Ms. Parks has every intention of proceeding with civil and criminal litigation.  On February 24th 1997 Parks sued Barnes seeking ex parte temporary restraining order to ban smoking on the second floor of the Bell Building.  The restraining order was granted on March 4th 1997.  On the same date, Malcomb Daniels, a reporter with the Montgomery Advertiser newspaper, contacted Blevins for information about Parks’ lawsuit.  On March 5th, the newspaper published an article on the lawsuit and the grant of the temporary restraining order.  On March 6th, 1997, the newspaper ran a follow-up article on the lawsuit entitled “Building Owner Wants Lawyer Investigated”.  The article quoted Frank Barnes saying: “He tried to extort money out of me because I refused to pay his demands.”  In addition, the article reported that Mr. Barnes had written to the Alabama Bar Association and the attorney General’s office to request an investigation of Blevins.  Blevins sued Barnes and the newspaper, alleging defamation, invasion of privacy and intentional infliction of emotional distress.  The trial court entered a summary judgment for Barnes and the newspaper on all claims.  Blevins appealed to the Alabama Supreme Court.  The court only addressed the claims as they related to the defamation claims and did not review the claims alleging invasion of privacy and intentional infliction of emotional distress.

This 1997 case has a lot of similarities to the current case against Mercado Media Productions LLC for the defamation claim and the current threat of legal action against Never Stop Media for the article they wrote.  The courts weighed heavily the comments that Barnes made to the reporter and the letter written to the attorney general.  What is interesting in this case are the verbiage used by Barnes and the verbiage used by Blevins.  Barnes felt that Blevins was trying to “extort” money from him.  Blevins felt Barnes was accusing him of “extortion”.  So the courts went to the dictionary definition of both words being used.  The crime of extortion is defined as “knowingly obtaining by threat control over property of another, with the intent to deprive him of the property.  Extort however includes the meaning “to obtain from a person by force, intimidation, or undue or illegal power.  Barnes use of the word “extort” is what the Supreme Court has characterized as “rhetorical hyperbole”.  Because the word “extort” is not confined to its meaning that suggests the crime of extortion and because the use of the word in the context in which it was spoken indicates that it was rhetorical hyperbole, the court concluded that Barnes’ statement did not amount to slander per se because it did not charge Blevins with an indictable offense.  As for Barnes’ quoted statement in the news article the court ruled that the average reader could easily see that Barnes believed the lawsuit was unwarranted and that the settlement offer of $25,000 was simply a way for the attorney recover money for his client.  The court stated that Barnes’s comment when read in context with the remainder of the article, impugns Blevins professional reputation. 

Rhetorical Hyperbole which NSM has been widely known to use,  is a 1st Amendment-based doctrine that often provides protection to exaggerated, over-the-top speech in defamation cases.  It is defined as “extravagant exaggeration employed for rhetorical effect.  The doctrine provides breathing space for freedom of speech by ensuring that even heated and emotional rhetoric deserves free speech protection in a free society.  In a few of the most iconic Supreme Court cases the court deemed certain words as hyperbole, not defamation.  For example in Greenbelt Cooperative Pub. Ass’n v. Bresler 1970 that the use of term “blackmail” to refer to a developer’s negotiating style was rhetorical hyperbole more than an imputation of criminal conduct.  The court reasoned that even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered the developers negotiating position extremely unreasonable.  In 1974 the U.S. Supreme Court again applied the rhetorical hyperbole defense to protect the union’s use of the term “scab” in Letter Carriers v Austin.  The court reasoned that he use of the term in union disputes was an example of loose, figurative language, rather than defamation.  In Milkovich v. Lorain Journal Co. 1989, the U.S. Supreme Court again discussed the doctrine of rhetorical hyperbole.  The court noted that the Constitution protects statements that cannot reasonably be interpreted as stating actual facts about an individual made in debate over public matters in order to provide assurance that public debate will not suffer for lack of imaginative expression or the rhetorical hyperbole which has traditionally added much to the discourse of our Nation.  Rhetorical hyperbole doctrines or defense has often protected editorial writers from defamation suits.  The thinking is that those types of writers are often writing more than simply straight forward news reporting and thus are entitled to use more figurative language in their descriptions.  While the doctrine primarily appears in defamation cases, the concept occasionally arises in true threat cases.  In Watts v. United States 1969 a young draft protestor was prosecuted for violating a federal anti-threat law for saying that the first person he would put in his scope is L.B.J., referring to President Lyndon Baines Johnson.  The U.S. Supreme Court reversed his conviction, reasoning that he had engaged in political hyperbole rather than a true threat.

In May of 2009 Jerry Blevins and His wife Carol Blevins filed a lawsuit against the Elmore County Board of Education and the Alabama State Board of Education and asked a judge to enter an order for the Wetumpka Elementary School to give their sons who were ages 7 and 8 at the time excused absences until the school year ended, over a swine flu scare.  Circuit Judge Charles Price dismissed the case and said he did not have the authority to take steps sought by the parents.  The Elmore County School Systems Attorney Spud Seal stated “our issue was whether he had the right to withdraw the children from school and then we provide services for the children which we had no obligation to do.”  At the time of the case dismissal there were no reported swine flu instances in Elmore County.  Blevins threatened to take the case to Federal Court.

In June of 2010 Jerry M. Blevins brought forth legal action against the City of Tuskegee, Alabama and other defendants alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964 and various state-law claims.  More specifically Jerry M. Blevins, who is “white”, claimed he was denied health insurance during his tenure as Tuskegee County Municipal Prosecutor on the basis of his race, and that he was terminated after notifying the City Council of his intent to file a complaint about the alleged disparate treatment.  To summarize what happened, Jerry m Blevins claimed the alleged disparate treatment and retaliation in violation of Title VII.  Title VII makes it unlawful for an employer to discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, or national origin.  Title VII excludes any person elected to public office in any State or political subdivision of any State by the qualified voters; or an appointee on the policy making level or an immediate advisor with respect to exercise of the constitutional or legal powers of the office.  Neither party in the suit disputed that Blevins was an “appointee” as contemplated by the exemption.  The defendants in the case relied on the list of factors and maintained that the Tuskegee Municipal Court prosecutor is a position of policymaking authority and the court agreed.  Based on the defendants Motion for partial Summary Judgment which was granted, the courts dismissed all claims over which the court had original jurisdiction and declined to exercise supplemental jurisdiction over the remaining state-law claims.

Also in 2010, Jerry M. Blevins did not like another decision by the courts and filed yet another litigation against Beth Chapman the 2010 Secretary of State for Alabama where he was seeking declaratory and injunctive relief and contending that an Alabama Code violated the Equal protection Clause of the 14th Amendment and that he should be entitled to stand as a candidate in the 2010 election for judgeship of the 19th Judicial Circuit.  The Alabama Code that Blevins fought here was about residency and that each circuit judge must have resided in the circuit for which he is elected or appointed for at least 12 months preceding his election or appointment and must reside in such circuit during his continuance in office.  The court concluded that because the residency requirement for judges of the 19th Judicial Circuit imposed by the 1975 Alabama Code passed constitutional muster the trial court’s summary judgment in favor of the Secretary of State concerning Blevins complaint for declaratory and injunctive relief was affirmed.

The reason NSM outlined a handful of these cases and why we posed the question to Matthew Blevins of “was our article defamatory or was it just factually unflattering” is because this family has a documented history of filing in our opinion, frivolous lawsuits against people when they don’t get their way presumably over some sense of entitlement in their white privilege or when they are criticized by someone in the public including what could be deemed a SLAPP lawsuit against Mercado Media.  Now, the real purpose of this article using this entire situation as a perfect example of why Anti-SLAPP laws are extremely important especially for journalists like Mercado Media Productions and Never Stop Media.

SLAPP, short for Strategic Lawsuits against Public Participation have become a common tool for intimidating and silencing criticism through significant litigation costs and baseless legal proceedings.  Anti-SLAPP laws are intended to prevent people from using the courts, and potential threats of lawsuit, to intimidate people who are exercising their 1st Amendment rights of speech, press, assembly or association.  In terms of reporting, news organizations and individual journalists have used Anti-SLAPP statutes to protect themselves from the financial threat of a groundless defamation case brought by a subject of an investigative story.  Only 32 States in the country have adopted or amended their Anti-SLAPP laws.  Minnesota where Mercado is from, previously passed an Anti-SLAPP law, but it was struck down as unconstitutional.  Alabama, where Matthew and Andrew Blevins are from has no SLAPP protections.  And Wisconsin, where Never Stop Media is from also does not have an Anti-SLAPP law.  For the most part, Anti-SLAPP laws are broad enough to suits aimed at silencing or retaliating against journalists or news outlets for critical reporting.  These laws provide critical protections to the news media- allowing defendants to secure a quick dismissal before the costly discovery process begins, permitting defendants who win motions, to recover attorney’s fees and costs, automatically staying discovery once the defendant has filed an Anti-SLAPP motion, and allowing defendants to immediately appeal a trial court’s decision of Anti-SLAPP motion.

The most common SLAPP suits are of course defamation suits which date back to the 17th Century and unlike most English law, it’s reverse onus, meaning that once someone alleges a statement is defamatory, the burden is on the defendant to prove that it is not.  A common tactic with SLAPPs is called forum shopping where a plaintiff finds a court that will be more favorable towards the claims to be brought that the court in which the defendant resides in.  So for those who asked why was the lawsuit against Mercado filed in Elmore County instead of another, this could be one reason.  The scary part of SLAPPS is the actual effectiveness at silencing critics, inclusion of extra defendants, inclusion of plaintiffs with no real claim, making claims that are difficult to disprove, ambiguous wording that lets plaintiffs make spurious allegations without fear of perjury, refusal to consider any settlement offer other than cash, extensive and unnecessary demands for discovery, attempts to identify anonymous critics, appeals on minor points of law and demands for broad rulings when appeal is accepted.  The main purpose that plaintiffs are attempting to achieve with is to drain defendants of their financial resources by making the lawsuit as costly as possible and in most cases the plaintiff’s motive may not be legal victory but merely to waste a defendant’s time and money. 

In our last article, we highlighted the importance of being a “public figure” and what the Supreme Court deemed a “public-figure” to be.  This will be one element that is extremely crucial in Mercado’s defense since he won’t be able to file an Anti-SLAPP Motion.  While their won’t be a SLAPP defense, there is still a strong 1st Amendment defense in the right to free and un-hindered speech.  Another strategy to consider is the Vexatious Litigant claim.  This is why we highlighted these specific cases brought forth from Jerry M. Blevins.  Vexatious litigation is brought on solely to harass or subdue an adversary.   Litigation, by its very nature is adversarial and lawyers can use tactics to try and advocate and achieve a positive result for their client.  But there are risks if lawyers engage in conduct that unreasonably drives up the costs of litigation and can result in a lawyer being compelled to pay the other side’s legal fees and costs under the Federal Statute 28 USC 1927.  Other mechanisms that provide sanctions for bad-faith litigation is Rule 11 of the Federal Rule of Civil Procedure which authorizes sanctions for making representations that are “legally frivolous” or “factually misleading”. 

Could the lawsuit against Mercado and the threat of lawsuit against Never Stop Media be deemed vexatious in nature or a form of a SLAPP suit?  Some in the public eye could argue that is in fact the case.  It is imperative for lawmakers to continue to work on legislation in the remaining states to enact Anti-SLAPP laws that continue to provide more protections for journalists in order to give higher protections for free speech, criticism and investigative stories that may not paint subjects of the articles in a flattering light.  But it is also important for the public to help protect journalism instead of continuing to chastise everything as “fake news” and attempt to validate who is or isn’t a real journalist.  Without the work of journalists or independent journalists providing us with reliable information, who would report on issues of public interest, denounce wrongdoings, social inequalities and unpunished crimes?  Protecting journalists and independent journalism is not only a concern for journalists; it’s a concern for all.  Journalism makes an impact on people’s lives.  It is key in advancing human rights and has a basic function to hold the powerful accountable.  The information that journalists provide to us is a public good which needs public support.  Free independent media allows the public to make informed decisions and hear a diversity of opinions.  Journalists in the United States should be able to report on public health questions, public school funding, drug safety, question elected officials, sometimes aggressively, and raise controversial issues along with a plethora of other topics without fear of reprisal and frivolous lawsuits.

In the United States, the media are sometimes referred to as the “Fourth Estate” or fourth branch of the government.  While the Constitution established the executive, legislative and judicial branches, the phrase “Fourth Estate” reflects the unofficial but widely accepted role the news media play in providing citizens with information they can use to check government power.  An independent press includes a diversity of voices and opinions, not just those that politicians want covered.  Investigative journalists conduct deep research on important topics to uncover facts that citizens need to know.

Freedom of information is fundamental in any democracy.  Freedom of expression and information is the first and most important of freedoms.


***Disclaimer*** In no way is Never Stop Media a licensed attorney or giving legal advice for defense in any court litigation.  This article is meant as educational in nature and some opinions have been expressed.

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