Charles Carreon: Popehat.com, by Kenneth Paul White

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The Oatmeal v. FunnyJunk, Part V: A Brief Review of Charles Carreon's Complaint
Jun 19, 2012
By Ken White.
Law

Note: our entire series of posts about the Oatmeal v. Funnyjunk situation is now complied under the Oatmeal v. Funnyjunk tag.

Background: our previous coverage of the epic and (epically ridiculous) battle between FunnyJunk attorney Charles Carreon and The Oatmeal can be found here: Part I, Part II, Part III, and Part IV.

A few days ago I discussed a report — which proved true — that FunnyJunk's attorney Charles Carreon had sued Matthew Inman of The Oatmeal, IndieGoGo, and two charities in a fit of what can only be described as unbalanced, from-Hell's-heart-I-stab-at-thee pique.

Today, as promised, I'm going to talk a bit about the merits of — no, the substance of — you know, scratch that. I'm going to talk about the butthurt that Charles Carreon angrily crayoned down and chucked at a federal judge.

I. Preliminaries

Mr. Carreon's complaint is now hosted many places, including (in redacted form, without large exhibits) here. The entire thing, with exhibits, is now available on PACER as well.

I'm not going to explain all of the problems with it. First, that would be a monstrously long post. Second, I'm not going to do anything that might help Charles Carreon, whose behavior in this matter is contemptible. So: you'll have to wait for motion practice to see the defendants' approach to issues of jurisdiction, standing, California's anti-SLAPP statute, and a full treatment of Mr. Carreon's eccentric view of California charitable law. I have no doubt that Venkat Balasubramani will do a spectacular job for Matthew Inman, with whatever assistance he and Mr. Inman decide to accept. (Thanks, by the way, to the attorneys, paralegals, law students, and other professionals who have offered pro bono help. Stand by. You never know who might need it.)

So: the complaint. Let's begin by quoting an applicable Federal Rule of Civil Procedure looming over it, and over Mr. Carreon: Rule 11.

b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery;

. . . .[emphasis added]

Violations of Rule 11 may lead to monetary sanctions by the court.

On to the complaint itself.

II. Causes of Action and Prayers For Relief

As the Courthouse News Service report correctly suggested, Carreon's complaint names Matthew Inman (proprietor of The Oatmeal), IndieGoGo Inc. (the web site that hosted the fundraiser), the American Cancer Society, the National Wildlife Federation, and a number of "Does," or as-of-yet-unidentified defendants to be named later. After Mr. Carreon's summary of what he believes the facts and the law to be, there are three causes of action — that is, three claims based on which Mr. Carreon believes he is entitled to relief.

The first cause of action seeks to impose a constructive trust upon the proceeds of Inman's BearLove charity. To over-simplify, trust is a legal structure that puts restrictions on the use of an asset and imposes obligations on its manager, the trustee; a constructive trust is a remedy that a court can impose by ordering that an asset be treated as if it were in a trust, with its use restricted and supervised. Mr. Carreon asserts that the court must impose a constructive trust because Mr. Inman and IndieGogo have violated California charity law. Of course, under California law, a constructive trust is a remedy, not a cause of action– it's what you get if you prove a violation you have standing to complain about, not the violation itself.

The second cause of action asserts a trademark violation under the Lanham Act, 15 U.S.C. 1125, against Mr. Inman and one of the Does. Mr. Carreon asserts that (as, if you thought about it, you would expect) he trademarked his name, that somebody started a fake Twitter account in the name @charles_carreon, and that this hurt him. Mr. Carreon thinks that this person was incited by Mr. Inman, or "on information and belief" was Mr. Inman himself. "On information and belief" is lawyer-speak for "I have no evidence whatsoever, but I kind of like to imagine that it's true, and who knows what I'll find in discovery." Mr. Carreon goes on to complain that the fake @charles_carreon tweets were "abrasive and provoking" and "engendered negative responses" to him, which is upsetting because he "makes it a habit to engage in tempered speech even on matters of heated debate." Yes, it's totally true, as anyone who has read about this story or met Charles Carreon could attest: interacting with him is clearly a memorable joy, akin to being farted upon by a unicorn, and his actions normally inspire only adulation and the occasional rapturous fainting incident.

The third cause of action is against Inman and the Does again, this time for the awkwardly named "Inciting and Committing Cybervandalism In The Nature of Trespass To Chattels, False Personation, and Identity Theft," which believe it or not you will not find in the California Civil Code. Here Mr. Carreon asserts that Inman incited others to hack Mr. Carreon's website (which he immediately detected and stopped) or use his email address to sign him up for websites and goods and services he did not want. Mr. Carreon asserts once again "on information and belief" (or, as I prefer to say, "ass-damply") that Mr. Inman perhaps did these things himself.

Finally, we have the "prayer for relief," where Mr. Carreon says what he wants out of all of this. He wants (a) an order imposing a trust over the BearLove proceeds, (2) an order barring Doe No. 1 or Inman from using his name "in any manner," (3) an order requiring IndieGoGo to comply with certain California charity laws Mr. Carreon thinks ought to apply to them, (4) a order requiring the National Wildlife Foundation and the American Cancer society to do things Mr. Carreon thinks they are supposed to be doing, (5) damages, (6) disgorgement by Mr. Inman and IndieGoGo of "ill-gotten profits," (7) triple damages, (8) attorney fees, (9) an order requiring the defendants to report to the court about how they are complying with what Mr. Carreon wants them to do, (10) punitive damages, and (11) a formal judicial declaration of most wanton and hurtful trespass unto fee-fees. I may have made one of those up.

Having reaped the whirlwind of scorn for suing the charities, Mr. Carreon will no doubt protest that he didn't sue them for money, he just asked that they comply with the law. In fact, it's going to be difficult and expensive for the charities to respond at all. Even though Mr. Carreon named the charities as defendants in the caption, he doesn't name them as defendants in any of the three causes of action, and yet he asks the court to issue orders directing them to do things, and his demands for damages and attorney fees doesn't make it clear whom he thinks should be paying him. Also, in paragraph six identifying the parties and the court's jurisdiction over them, Mr. Carreon only says "The Charitable Organization Defendants are . . ." before trailing off awkwardly without conclusion, like a former friend or family member mulling how to create a diversion rather than answer the question "how can you tolerate being associated with this vexatious twatwaffle?" This means that the charities will have to pay lawyers to research how to put into fancy federal-court language the basic message "attention entitled dipshit: what exactly are you suing us for?"

In addition, there are patent defects, provably false statements, and rank hypocrisies in the complaint. Let's mention just a few:

III. Legal, Factual, And Moral Bogosities

Sweet Charity: Mr. Carreon's theory of how California charity law governs the defendants is wholly harebrained. As but one example: Mr. Carreon asserts that California Government Code section 12599 controls The Oatmeal, even though that statute by its own terms applies to "any individual, corporation, unincorporated association, or other
legal entity who for compensation" engages in fundraising in California — professional telemarketers and fundraisers, in other words. In a similarly wrong-headed or deliberately deceptive vein, Mr. Carreon claims that Government Code section 12599.6(b) requires charities like the ones he has sued here to "exercise and establish control" over "all fundraising activities conducted by others for their benefit." Except that's not what Government Code section 12599.6 says at all. It says "A charitable organization must establish and exercise control over its fundraising activities conducted for its benefit, including
approval of all written contracts and agreements . . . ." Mr. Carreon made up the part requiring charities to police fundraising they don't control themselves or contract out. That's why if your kids sell lemonade in order to donate the proceeds to save the pandas, the World Wildlife Fund doesn't have to come and proofread their signs and make sure that they aren't misstating the ingredients of the snickerdoodles or coercing the Jenkins kid up the block to buy seconds.

True Versus Truthy: Mr. Carreon makes a number of factual assertions that appear to play rather fast and loose with the requirements of Rule 11, cited above. Take, for example, his claim in paragraph 37 that "Mr. Inman's stated intention is to turn over only $20,000 of the amount raised by the Bear Love campaign" to the charities. Mr. Carreon's own exhibits show that he is lying. Mr. Inman said that he was trying to raise $20,000 (at the time of this writing he has exceeded ten times that) and that he would donate half to one charity and half to the other. Later, when results far exceeded expectations, Mr. Inman posted an update, saying "a lot of people have been asking what I plan to do with the extra money we raised over the initial $20,000. 100% of it is going to charity. I’m going to add 2 more charities to the list, in addition to the ACS and the NWF." Mr. Carreon also implies falsely in paragraph 30 — as he has stated falsely to the media — that the bear-loving mother Mr. Inman drew was meant to be Mr. Carreon's mom, when in fact the post makes it perfectly clear that the statement is directed a FunnyJunk, a web site that does not actually have a mother (unless, perhaps, its mother is AOL).

Take also Mr. Carreon's dark speculation that some sort of skullduggery must be at work for anyone to find the email he uses because he has not posted it anywhere on the internet "except where required by law or internet regulations [sic]." In fact, aside from PACER and WHOIS entries (which Mr. Carreon conceded) he also made the email address available in his California State Bar profile, his Oregon State Bar profile, as the contact email for his "RagingBlog" blog captioned "Charles Carreon" (since deleted, hours after someone pointed it out in comments on this site), repeated all over his http://www.american-buddha.com site (where he's fond of posting his own emails to people), and in his own 2009 press release. In short, Charles Carreon's email address was easily accessible to anyone reasonably good at using Google. I don't find Google sinister. Perhaps Mr. Carreon does, particularly after this whole episode.

You Can't Say That! Mr. Carreon claims that Mr. Inman "incited" others to create a false Twitter account using his name, and to commit "Cybervandalism." Yet despite his ability to quote Mr. Inman in great detail in an embarrassingly pearl-clutching quasi-Victorian effort to cause horror and disgust at Mr. Inman's comedic style, Mr. Carreon does not cite a single thing that Mr. Inman said that sounds like incitement. Not a "go email him," not a "don't put up with this guy," not a "let's show him," not a single word encouraging any action other than donations. This is in sharp contrast to Mr. Carreon's client, FunnyJunk, which accused Mr. Inman of wanting to shut FunnyJunk down and urged its users to "Contact Oatmeal anyway [sic] you can." It also contrasts with Mr. Carreon himself, who became incensed when Mattel's trademark attorney would not respond to his emails about a porn doll that Mr. Carreon thought infringed a Mattel property, and urged his readers to contact the hapless attorney. (Both FunnyJunk and Carreon, in those examples, provided contact information for their targets — Inman redacted Carreon's contact information from the letter he published and linked his Wikipedia page rather than his web site.) But those examples, no doubt, are just different.

The implications of Mr. Carreon's argument – which will be demolished by apt First Amendment case citations in due course — are frightening. Mr. Carreon cannot cite a single thing Mr. Inman said to incite or encourage anyone to take any illegal action against Mr. Carreon. Instead, Mr. Carreon's argument seems to be that Mr. Inman committed actionable incitement not by calling for action, but merely by criticizing, ridiculing, and reviling Mr. Carreon. No First Amendment cases support such a proposition. The implications of Mr. Carreon's argument reveal its fatuity. Mr. Carreon's argument necessarily means that the more popular or listened-to a speaker is, the less they can say, for fear that an audience will be "incited" to do something illegal against whomever they are criticizing. Mr. Carreon's argument necessarily means that the more contemptible a person's behavior is, the less that others can criticize it, for fear of "incitement." It's a deeply unprincipled position, because the category of "critical speech that might cause someone to do something wrong" infinitely malleable and can be used to attack almost any criticism one doesn't like. Mr. Carreon has not articulated, will not articulate, and cannot articulate the line between permissible criticism and his open-ended definition of "incitement." It's an un-American and pro-totalitarian position, because it effectively asserts that the government should have a license to censor speech based upon the naked assertion that someone might react to it the wrong way — a proposition that American courts have spent a half-century refuting. In a man who has quite literally wrapped himself in the flag and attempted to portray himself as a defender of the First Amendment, it is a sign of weakness of character.

Free Speech For Me, But Not For Thee: In this lawsuit and his public statements about it Mr. Carreon wears the guise of Innocence Abused, but he does so quite awkwardly and unconvincingly. He portrays himself as shocked and appalled at the crassness of some of The Oatmeal's cartoons, and has pretensions to "tempered speech," but quite frankly he's full of shit. Before he became Easily Offended Aunt Agnes for purposes of this lawsuit, Carreon threw elbows. As I pointed out in Part IV, the site that Mr. and Mrs. Carreon apparently operate — to which Mr. Carreon contributes — has satirical photoshops of politicians he doesn't like having sex, or topless on a photoshopped can of "Tits and Rice." But his satire does not extend only to politicians. The site also hosts a photoshop of a newspaper columnist altered so that it appears she is masturbating two men simultaneously. Apparently Mr. and Mrs. Carreon didn't like her columns.

Some time ago, Mr. Carreon lived in Ashland, Oregon, and the site was hosted on a network owned by the City of Ashland. When the columnist depicted in the two-dicks-at-once photoshop complained that the picture was pornographic and a copyright violation, the City of Ashland pulled the plug on the site. (That's what you get when you let the government host your content.) Carreon sued the city for First Amendment violations, representing the site. He lost in United States District Court and again on Appeal based on the city's limited liability — the courts found that he failed to demonstrate that the site takedown was the result of a city policy or lack of appropriate training. For what it's worth, city liability aside, I think the photoshop was clearly neither a copyright violation nor legally obscene in a manner permitting government censorship. But the point is that here, defending the right of the site he and his wife wrote for to post pornographic images of newspaper columnists who wrote things they disagreed with, Mr. Carreon waxed rhapsodic about free speech:

"Internet censorship is just the latest outbreak of a disease that government always suffers from — wanting to control what people can say," says Carreon, "We are shining a light on a problem that no one in Ashland knew about — the existence of a censor inside of the City who could, and did, turn off websites for totally improper reasons. In the case of American Buddha, it was a complaint from conservative columnist Kathleen Parker, who was the subject of a risque cartoon [sic] that was posted on the American Buddha website http://www.american-buddha.com, In other cases, we don't know what the reasons were, but the websites were turned off."

. . .

Asked why the case was important enough to justify an appeal to the Ninth Circuit, a project that can easily cost a client a healthy five-figure sum, Carreon explained: "The issue is one of first-impression, because whether a municipal Internet system subjects a city to First Amendment restrictions is, strictly speaking, a new one. On the other hand, it's just a replay of the old Jehovah's WItness cases, where an unpopular religion found its message blocked by restrictions on the use of loudspeakers and pamphleteering. American Buddha is a digital pamphleteer, entitled to the same protections as the works of the Founding Fathers, who wrote 'The Federalist Papers' pseudonymously, and circulated them secretly to avoid Royal prosecution. The Revolutionary War was in large part, a war against censorship. And it's not over."

Compare that position to the one he assumes here, asserting that Matthew Inman's impudent BearLove image is so horrific that charities ought to be court-ordered to make him stop using it to raise money for them. Compare his words about anonymity to his desire to find the person who made an obviously satirical Twitter account mocking him. Compare his stirring rhetoric, which invoked the Founders and the Revolutionary War and past victims of censorship, with his current rhetoric, which invites comparison to the Comics Code Authority and Thomas Bowdler and Judge Louis A. Goodman. Compare who he has claimed to be, and who he wishes he were, to who he has become as a result of his petulance and ego. Compare, and shake your head.

Note: Many of the observations in this post come from people who offered comments on our prior chapters, including but not limited to Nicholas Weaver, W Ross, joe, Ann Branson, Keith R, MJ, and Jack. They have my thanks. I suspect that the longer Charles Carreon continues to dig, the more illuminating things readers will find in his past writings and actions. That is as it ought to be.

First Edit: ArsTechnica refers to this as a "devastaing nuclear attack." If you've followed Carreon, you know that means it's not my fault, but Walt Disney's.

Second Edit: In the "abject and unapologetic hypocrisy" category, this page on the American Buddha web site shouldn't be missed. Headed "MEMO TO ANN COULTER — YOU'LL GET YOURS, BITCH!", it includes writing attributed to Charles Carreon, including this:

Since Medusa wasn't human, it was perfectly okay for Perseus to smite her head from her shoulders. Since Coulter has abandoned her humanity for money, influence, and the adulation of fools, it is perfectly okay to use whatever means are necessary to bring an end to her reign of terror, including publishing her decapitated visage, snake ringlets and all. It doesn’t matter whether you’re left wing, right wing, libertarian or anarchist, don’t let this reactionary Medusa turn you to stone — stalk her carefully, using your mirror-shield to avoid looking directly into her eyes — and when you are close enough, one clean slice directly above the shoulders will do the trick.

Again, compare that to Charles Carreon's hand-wringing about incitement and tone and content. Hat tip: commenters Jonathan and Grifter.

[admin]

The Oatmeal v. FunnyJunk, Part VI: The Electronic Frontier Foundation Steps In
Jun 21, 2012
By Ken White.
Effluvia

Note: All of our coverage of the Oatmeal v. FunnyJunk matter is collected under this tag.

Only a very brief update today. Matthew Inman of The Oatmeal was already represented by the eminently qualified Venkat Balasubramani, whose initial response to Charles Carreon's bumptious demand was near-perfect. Today the Electronic Frontier Foundation announced that it would be joining the fight at Venkat's side.

“This lawsuit is a blatant attempt to abuse the legal process to punish a critic,” said EFF Intellectual Property Director Corynne McSherry. “We're very glad to help Mr. Inman fight back.”

Aces.

So, it looks like Matthew Inman is going to be just fine without likes of me or even Kevin. Nonetheless, it's not year clear who is representing the charities or IndieGogo, let alone the satirists and critics who may next be the subject of Carreon's wrath. So: my offer to attempt to find and coordinate pro bono help to any defendant (named or Doe) in this case remains. Thanks again for the many kind offers of help from lawyers, law students, and other professionals. (Fair warning: I may keep you in mind next time some other blogger is threatened with a bogus suit.)

First Edit: By the way:

Ironically, the threat of the first lawsuit never materialized. Carreon admits he was misinformed: Before demanding the $20,000, which was based on FunnyJunk's "estimate of advertising losses sustained due to the taint of being accused of engaging in willful copyright infringement," Carreon was told that all Oatmeal comics had been taken off the FunnyJunk site, even though they hadn't. "If I had known… no demand would have gone out," he says.

Correct me if I am misinterpreting it, but it sure sounds to me like Mr. Carreon is revealing a confidential attorney-client communication between himself and FunnyJunk in order to make himself look less ridiculous. Did FunnyJunk authorize Mr. Carreon to make that disclosure, which could prejudice FunnyJunk?

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Update: Charles Carreon Files First Amended Complaint
Jun 25, 2012
By Ken White.
Law

Just a very brief update in the Oatmeal v. FunnyJunk saga — Charles Carreon has filed a First Amended Complaint.

I've downloaded it from PACER. It's available here.

Busy day ahead, but I hope to offer commentary by tomorrow morning.

Edited to add: I've praised PACER as a resource for citizens to become informed about court proceedings and practice investigative blogging — for instance, in my Anatomy of A Scam Investigation series. If you are interested in a particular federal case, you can get a PACER account and sign up for automatic email notifications each time a document is filed in the case. You'll know what's happening as quickly as the media and participants do.

[admin]

The Oatmeal v. FunnyJunk: Request For Pro Bono Help In Bay Area
Jun 27, 2012
By Ken White.
Law

[Note: our prior coverage of the Oatmeal v. FunnyJunk debacle is collected in this tag.]



Thanks much to the lawyers, law students, paralegals, technical experts, and others who have previously offered pro bono help to people caught up in Charles Carreon's litigation arising from The Oatmeal v. Funnyjunk perfect storm of internet ridiculousness.

I'm writing today, and throwing up the Popehat Signal, to make a very specific follow-up request. I'm looking for a lawyer admitted in United States District Court for the Northern District of California, and preferably working in the Bay Area, to act as pro bono local counsel for someone involved in this case. Lead counsel is a figure of unmitigated awesomeness and consummate qualifications for the case at hand. [Please do not speculate about details in the comments. You'll find out soon enough.]

Drop me an email, please.

[admin]

The Oatmeal v. FunnyJunk, Part VII: Charlie The Censor Files A Motion
Jun 30, 2012
By Ken White.
Law

[All of our coverage of the Oatmeal v. FunnyJunk debacle is collected under this tag.]

Here it was, Saturday night, and I was all set for a relaxing evening: a few beers at the Yard House and then a movie with my lovely wife, perhaps a few (or a few dozen) turns of Civ V (with the expansion), and sleep. Or maybe I was going to spend the evening conferring with my shadowy Illuminati brethren, spinning our web to control your destiny. It really depends on whom you ask.

Our pal Charlie the Censor had other plans.

Charles Carreon, fresh from amending his complaint against Matt Inman, IndieGoGo, and two charities, filed an application for a temporary restraining order, seeking court intervention to prevent IndieGoGo from distributing the astounding $220,000 Matt Inman's BearLove campaign raised to fight cancer and help bears.

Adam Steinbaugh scooped me on this, and has both the documents and some good analysis. I learned of it via a PACER email and considered starting a post immediately, then considered the likely consequences if I started typing the standard for preliminary injunctions into my iPhone in the middle of date night, and reconsidered.

I'm only going to offer only limited analysis; I'll provide the opposing briefs when they pop up on PACER. For now, consider this:

1. Charlie the Censor continues to assert that Matt Inman is a "commercial fundraiser for charitable purposes." However, as I noted in Chapter V, the statute doesn't seem to support that claim. Mr. Carreon offers no legal authority or argument for why Inman falls into the definition. To be fair to him, he does assert the proposition "plainly" and "clearly" several times, and I think once he may have said "strenuously," though I may be misremembering that.

2. Charlie the Censor correctly states that preliminary relief (including both temporary restraining orders and preliminary injunctions) are employed by courts to prevent "irreparable harm." However, he fails to note that "irreparable harm" generally excludes pure monetary harm. Such harm is not irreparable because it can be addressed by an award of damages against the alleged wrongdoer. Hence, it is generally not a basis for preliminary injunctive relief. “(P)laintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial. Los Angeles Memorial Coliseum Comm'n v. NFL (9th Cir. 1980) 634 F2d 1197, 1202 [monetary harm alone does not constitute irreparable harm]. Here, Mr. Carreon is allegedly concerned that Mr. Inman will abscond with the money, or that donors will be deprived of the monetary value of tax write-offs. Both of those harms can be addressed by money. They're not irreparable. There are exceptions, but this will be a problem for him.

3. Charlie the Censor uses the application as a vehicle to accuse Mr. Inman and IndieGoGo of defrauding donors by falsely suggesting that their donations would be tax-deductible. Yet as Adam Steinbaugh pointed out in a comment here, IndeGoGo offers perfectly clear guidance on this subject. In other words, it's so clear that even a Popehat reader can find it.

4. As Adam explains in his post, Charlie the Censor's motion illustrates how petty he is. By filing and amending his lawsuit, he's tried to reframe the narrative to be about him vindicating the rights of donors everywhere, enforcing California charity law, and preventing abuse of charities. But the motion reveals that he was willing to let IndieGoGo off the hook — abandon his opposition to their 4% fee and capitulate on his quest to have a court order them to comply with what Mr. Carreon imagines it to be — if they just agree to breach their contract with Mr. Inman and send the money directly to the two charities. In other words, he wants to save face, to achieve some sort of pathetic victory over Mr. Inman, no matter how mean and small. I find this more pitiful than maddening, actually.

5. Charlie the Censor says, in explaining why the Court should prohibit IndieGoGo from releasing the money to Inman, "[a]lthough he induced many donors to donate,his desire to engage in showboating with the proceeds does not demonstrate the sober, responsible attitude appropriate to the trustee of a charitable fund." Sorry, Charlie, could you repeat that? I think you were saying something about a sober, responsible attitude, but I somehow got distracted.

6. Charlie the Censor seems to have turned down his outrage a few notches regarding the fact that IndieGoGo gets a 4% fee. Perhaps he realized how thoroughly that is disclosed on IndieGoGo's website. Or perhaps he realized that a 96% return to the charities is vastly better than the cut charities usually get from fundraising conducted in their name under the statutory scheme he seeks to impose upon IndieGoGo and Mr. Inman.

7. Charlie the Censor remains outraged that Mr. Inman wants to sully the good reputation of charitable fundraising through a "publicity stunt." This is truly an excellent point. If charity fundraising is characterized by anything, it's high levels of dignity. You'd never see a publicity stunt like people standing in front of a comically outsized check. You'd never see politicians and celebrities using charitable donations for attention. You'd never see something like an eating contest to promote an anti-hunger charity. No, like anything associated with money, it's really quite pure. Thank goodness we have people like Charlie the Censor who are willing to use the legal system to tell people what to think, what to say, and how and why they may donate to charity, to keep it that way. [Or maybe you don't think Charlie the Censor should be telling people what kinds of charitable campaigns shouldn't be allowed because the offend his delicate sensibilities. Maybe you think that it's none of Charlie the Censor's damn business if someone like Matt Inman wants to point to a bad actor -- a bad actor like Charlie the Censor -- to inspire people to donate money to a good cause in defiance. If you feel that way, it's too late to donate to BearLove -- but it's not too late to donate a few bucks to Ann Bransom's campaign, premised on the notion "My intentions in donating my own money are nobody's business."]

Watch for an update Monday night.

FIRST UPDATE: Sunday July 1st, 3:00: PACER just informed me that IndieGoGo filed its opposition. I downloaded it. Here is the memorandum of points and authorities, and the relevant supporting declarations are here and here.

IndieGoGo's opposition is devastating. The main points may be summarized as follows:

1. Even though Carreon filed suit on June 15, 2012, and even though he knew exactly when IndieGoGo would transfer the funds, Carreon delayed until June 28, 2012 to file his application for a TRO — after IndieGoGo had already transferred the money, and after IndieGoGo told Carreon they had already transferred the money. As IndieGogo points out, Carreon offers no explanation for his delay.

2. IndieGoGo explains that it was only ever in possession of about half of the money anyway — the half contributed by credit card. If you contribute at IndieGoGo through PayPal, the money goes directly to the person who started the campaign (here, Mr. Inman.) If you contribute through a credit card, the money goes to IndieGoGo. IndieGoGo gives its estimate of how much was left after fees.

3. At Mr. Inman's request, IndieGoGo distributed the credit card money directly to the two charities, the National Wildlife Fund and the American Cancer Society. So Mr. Inman doesn't get to take his picture with the entire pile of money (only the part that came through PayPal) and Charlie the Censor gets a petulant amoral victory. However, because Charlie the Censor was willing to abuse litigation and frustrate the charitable purpose of Mr. Inman's campaign, Mr. Inman's approach was strategically sound. The pedagogical point that Mr. Inman could have achieved by taking the picture has been achieved by the nationwide attention to Mr. Carreon's appalling and unprofessional behavior.

4. IndieGoGo argues, as I did above, that because this involves money, there is no showing of irreparable harm, and thus preliminary injunctive relief is inappropriate.

5. IndieGoGo argues that it is immune from Charlie the Censor's cause of action against it under Section 230 of the Communications Decency Act, which generally speaking says that online service providers are not liable for the postings of their guests and customers. (That's why if you post something defamatory on Facebook, Facebook is not liable the way a newspaper would be if it printed your op-ed making the same defamatory statement.)

6. IndieGoGo — unlike Charlie the Censor — engages in a thoughtful and persuasive discussion of pertinent authorities on California charity law, and establishes rather convincingly that he lacks standing to sue. (Charlie the Censor probably foresaw this argument, which is why his First Amended Complaint attempts to drag the California Attorney General into the case.)

This is an extremely well-drafted rebuke to Charlie the Censor and would be humiliating to any normal attorney. In the case of Charlie the Censor, he'll probably try to sue PayPal next.

SECOND UPDATE: July 1: [I made you an original version of this update, but apparently I eated it.] The Electronic Frontier Foundation has filed their opposition on behalf of Mr. Inman. It's awesome. So is their commentary.

Just a few important points from the opposition:

1. The EFF eviscerates Carreon's argument that Mr. Inman is a commercial fundraiser, using — and I know this will be shocking if you have been following the case so far — actual law.

2. The EFF invokes the First Amendment in a way that IndieGoGo does not, explaining that charitable fundraising is protected speech entitled to more deference than standard commercial speech, and thoroughly refuting Mr. Carreon's quasi-Victorian couch-fainting (and deeply hypocritical) approach to fundraising decorum.

3. The EFF ably demonstrates that Mr. Inman did not, in fact, make any false statements about the fundraiser.

4. The EFF offers an answer — a resounding "no" — to the now common question "can Charlie the Censor manufacture standing by just making a donation?" Again bringing law to Mr. Carreon's rhetoric-fight, the EFF demonstrates that Mr. Carreon has no standing to police charities under California law.

The rest is entertaining rubble-bouncing. That's going to leave a mark.

THIRD UPDATE: July 2, 2012 at 3:30 PST: Judge Chen has issued an order asking Mr. Inman to submit evidence that he has, in fact, sent checks to the two charities, suggesting this would make the motion moot. This is a very strong indication that Judge Chen will deny the motion as moot if Mr. Inman supplies the evidence.

Fourth Update: July 3, 2012 at 3:30 PST: Mr. Inman's attorney responded to the Court's order by filing a declaration indicating that he personally mailed the checks written by Mr. Inman to the two charities. That's it. Really nothing to see.

[admin]

Oatmeal v. FunnyJunk, Part VIII: Charles Carreon Gets Sued, Paul Alan Levy of Public Citizen Joins The Fray
Jul 2, 2012
By Ken White.
Law

[All of our coverage of Charles Carreon's legal voyage of self-discovery is collected under this tag.]

Everyone knows what you do when someone like Charlie the Censor sues you. You lawyer up. If you're very lucky, you have funds to hire a good lawyer, or you can get the backing of extraordinary advocates like those at the Electronic Frontier Foundation.

But what do you do if someone like Charlie the Censor just threatens to sue you at some unspecified future time or place, but doesn't yet? Do you simply wait and see? Do you live your life under that cloud?

Well, you could. But that's chilling. Fortunately, once someone like Charlie the Censor utters frivolous censorious threats, the law offers a remedy to the bold.

You lawyer up, and you take it to him.


A couple of weeks ago, when Charles Carreon began his douchetastically logarithmic process of doubling down and redoubling and redoubling again upon his bad behavior, blogger John Doe (not, I believe, his actual name) started a satirical blog called "Censoriousdouchebag — a satirical diary about Charles Carreon" at charles-carreon.com. On the blog, John Doe offers apt satirical commentary on Charlie the Censor's rhetoric, approach to law, and general behavior. You know what happens next, don't you? The "real" Mr. Carreon responded with a responded in characteristic form with a threatening letter to Register.com, asserting that he would sue Register.com if they did not reveal the identity of John Doe and close down his site.

Fortunately John Doe didn't have to stand up to this alone. Somebody put him together with Paul Alan Levy of Public Citizen, whose pro bono efforts on behalf of bloggers and website owners I have praised before. Paul blogs at the Consumer Law & Policy Blog and specializes in litigation involving free speech on the internet. Paul agreed to step in for John Doe. He wrote to Mr. Carreon and calmly and professionally refuted his claims with citations to relevant cases — several of which Paul had personally litigated and won.

Now normally, when a formidable subject matter expert like Paul Alan Levy steps up to oppose you, citing cases that he previously won that demonstrate your claim is without merit, you might moderate your tone a bit. Not Charles Carreon. He turned the censorious thuggery to 11:

As far as when and where I will sue your client, be certain that it will occur if your client does not cede the domain, and advise her of ten things:
1. That there is essentially no statute of limitations on this claim, and the prima facie laches defense [ed. note: that's an equitable defense that asserts "you waited too long to file this."] would not kick in for at least three years.
2. That venue in this action can be validly laid in at least three places, maybe four, if she doesn't live in Arizona, Florida, or California.
3. That I am capable of employing counsel to handle my claim against her, who will incur attorneys fees and seek recovery of the same. I filed pro se against Inman simply for the sake of convenience and the need for speed, and not from a lack of resources.
4. That the law in this area cannot be predicted with certainty, will evolve substantially over the next three years, during which I will be using digital forensics to establish actual trademark damages in addition to seeking the maximum cybersquatting penalty of $100,000.
5. That a judgment that recites that the domain was obtained by fraud upon the registrar, in the form of a misrepresentation that she did not know of my trademark on the name, might well be non-dischargeable in bankruptcy.
6. That a judgment can be renewed indefinitely until collected, and that California judgments accrue 10% interest, which can compounded once ever ten years by capitalizing the accumulated interest.
7. That you cannot guarantee that Public Citizen will provide her with free legal services on June 1, 2015, when I may very well send the process server 'round to her door.
8. That I have the known capacity to litigate appeals for years (check my Westlaw profile, and of course, the drawn out history of Penguin v. American Buddha, now in its third year, having passed through the Second Circuit and the NYCA, and still hung up in personal jurisdiction in the SDNY).
9. That the litigation, being of first impression in virtually every Circuit, grounded in a federal question, involving a registered trademark, and dispositive of many open issues in the field of Internet commerce and speech, might very well continue for a decade.
10. That Public Citizen might well be unable and/or unwilling to provide her with representation until the resolution of such an extended course of litigation.

Mr. Carreon also demanded that Paul Alan Levy convey Mr. Carreon's disquiet about this case, and Public Citizen's involvement in it, to Ralph Nader. I am unable to make the preceding sentence any more hilarious, and so will hang my head in shame and move on.

Confronted with competent opposing counsel with a mastery of the relevant law explaining that his claims are meritless, Charles Carreon went full thug. His threat amounts to saying "you know, sure, your client has this nice 'legal authority' and 'rule of law.' But I might sue tomorrow or I might sue three years from now. I might sue in any one of three or more states. Your client might not have pro bono help then. And however meritless my claim might be, I will grind your client forever. So surrender." As I said in Chapter Two of this saga, Charlie the Censor is engaged in the sort of thuggish bullying endorsed and licensed by our broken legal system.

In the face of what amounts to an extortionate threat to abuse the legal system, some clients would cave, or live in fear for years. Some lawyers would advise their clients to cave, or would abandon the cause. John Doe is not such a client, and Paul Alan Levy is not such a lawyer.

So they've sued Charles Carreon for declaratory relief in the same federal court in which Charlie the Censor previously sued Matt Inman, IndieGoGo, and two charities. Read Paul's post about it here — it's informative, measured, and also tells the tale of how Register.com screwed the pooch and betrayed John Doe. I've also uploaded a copy of the lawsuit here. The lawsuit seeks declaratory relief — that is, it establishes that there is a legal dispute between Charles Carreon and John Doe, and asks the federal court to resolve it by ruling that John Doe's site is protected satire and does not violate Carreon's rights. The complaint is simple and straightforward, and attaches the relevant exhibits, including Paul's argument about the law to Carreon and Carreon's responsive thuggish tirade quoted above.

Paul Alan Levy isn't alone. I put up the Popehat Signal seeking local pro bono counsel, and Cathy Gellis — Bay Area attorney and blogger at Digital Age Defense — graciously responded and has stepped in as pro bono local counsel.

The willingness of lawyers like Paul and Cathy to stand up against people like Charles Carreon is essential to the defense of the First Amendment. I disagree with both of them on some issues, but I have nothing but admiration and respect for their service here.

Read Paul's complaint and the exhibits. I'll provide details on the case as it progresses.

[Disclosure: I provided limited legal assistance to Mr. Doe, mostly including helping him find suitable pro bono counsel. Nothing in this post reveals attorney-client communications between Doe and me, nor is intended to. The quotes above are taken from the exhibits to the public record complaint.]

A closing word about proportion: This is not something on which I should throw the first stone from my glass house. However: Charles Carreon isn't the worst person in the world. He's not the worst person on the internet. If his antics illuminate the flaws in our legal system and encourage people to support free speech and change the system, that's good. If he's just the freak of the week, that's not particularly good. Just sayin'.

[admin]

Oatmeal v. FunnyJunk, Chapter IX: Charles Carreon Dismisses His Lawsuit
Jul 3, 2012
By Ken White.
Effluvia

[All of our coverage of Charles Carreon's big day in court is collected under this tag.]

On July 3, 2012, just short of 4 P.M., Charles Carreon filed a notice of dismissal of his lawsuit against Matt Inman, IndieGoGo, the American Cancer Society, the National Wildlife Federation, and (as a party to be joined "if feasible") the Attorney General of California. As drafted, the notice dismisses all parties, including Does.

Mr. Carreon's filing is here.

Some initial thoughts:

1. Mr. Carreon can dismiss the case without leave of court because no party has yet answered.

2. Dismissal is, without court intervention, without prejudice, meaning that Mr. Carreon could re-file if he wanted. Will he? Who knows.

3. Based on some quick research, it appears to me that Mr. Carreon's voluntary dismissal of the action does not preclude Mr. Inman from seeking attorney fees and costs under the Lanham Act. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 394–95 (1990). That doesn't mean that Mr. Inman will, or should, seek fees, for practical reasons too lengthy to discuss in this post. [Edited to add: behold the dangers of "quick research" -- a kind term for "talking out of your ass" or, more popularly, "blogging." This is probably wrong, for reasons I may address in another post. But I leave it up as an example of ass-dampery.]

4. Mr. Carreon could walk away from this particular set of opponents. But somehow I doubt he will. I predict that he will crow that he achieved a victory by "forcing" Mr. Inman and IndieGoGo to handle the charitable contributions differently than they otherwise would have. And I suspect he will continue threatening and suing others. Time will tell.

Edited to add: here's the Electronic Frontier Foundation's statement.

Second, Bizarre Update: Just got a message from a twitter account in the name of Jonathan Lee Riches — who, as Adam Steinbaugh points out, is a vexatious serial litigant who is either crazy or some sort of performance artist. He filed two frivolous motions to intervene in Carreon's case in NDCA.

The purported Jonathan Lee Riches Twitter account said "@Popehat @oatmeal carreon dropped his lawsuit because inman is suing him in another case , # 4:12-cv-00490-rcc , district of arizona tuscon." I checked the Arizona docket and there is, indeed, a pro se lawsuit filed in the name of Matt Inman, using the bizarre and farcical style of Riches. Whether this is actually Riches or someone else doing it for the lulz is unclear.

However, whoever did it, I submit they've crossed a line they may regret. Filing a frivolous and farcical lawsuit as performance art in your own name is one thing. Filing it falsely under someone else's name is a false statement to the courts. It is very arguably a federal felony under 18 U.S.C. section 1001. I often write here about abuse of 18 U.S.C. section 1001 by the government, but I'm going to have to chew over whether or not this ought to be charged as a crime or not.

[admin]

The Oatmeal v. FunnyJunk, Part X: Philanthropy > Douchebaggery
Jul 9, 2012
By Ken White.
Law

[All of our coverage of Charles Carreon's transformation from an obscure attorney to a figure of internet-wide ridicule is collected under this tag.]

It's time for some updates, boys and girls. I'm at an undisclosed location vacationing with the family, so I will by necessity be brief.

Money Talks. In This Case It Says "F.U.": Matt Inman has, as promised, posted pictures of the money he raised for charity. The pictures are beautiful. The triumph of good over evil usually is.

Forget It, He's Rolling: Charles Carreon, having dismissed his suit against Matt Inman, IndieGoGo, and two national charities, has now declared victory. Carreon apparently believes he prevailed because Judge Chen asked Mr. Inman to submit proof that he had written checks to the two charities. But Judge Chen did so in the context of requesting the basis he needed to deny Carreon's application for a temporary restraining order as moot. This is roughly like crowing that you dominated the captain of the firing squad by making him offer you a blindfold and a cigarette before shooting you.

Or perhaps Carreon believes he achieved victory because the cash Mr. Inman photographed was technically his own funds, not the funds he raised and forwarded to worthy charities. If this is what Mr. Carreon needs to live with himself, I say we let him cherish it. Oh, very well done, Mr. Carreon.

The Law Should Be What I Say It Is: Stinging from his recent infamy, Mr. Carreon has started a website called Rapeutation. Because being ridiculed based on your bad behavior is equivalent to sexual assault, you know.

The purpose of Rapeutation — aside from scrawled-on-the-asylum-wall poetry and disturbing videos — is to advocate for a new, rather ill-defined cause of action to address something called "Distributed Internet Reputation Attack":

Distributed Internet Reputation Attack (DIRA): noun, an attack against the reputation of an individual that harnesses the distributed efforts of large numbers of both human and digital Internet zombies to proliferate unmanageable quantities of disparaging information in an effort to alter the conduct of the individual or entity.

The use of the word "zombies" is always a signifier of serious and credible legal analysis.

[T]he frequency of DIRAs makes it apparent that old laws concerning defamation need reforming to take account of the pernicious effects of allowing Internet mobs to run riot, placing meaningful limits on what is fair play in the realm of social media. Suggestions will be made for ways to deal with the problem that will protect publishers from being required to play censor, including the creation of a new DIRA tort.

Even in lashing out, Carreon is unoriginal. Entire-internet-suer Joseph Rakofsky already offered the ass-damp tort of "internet mobbing," which in his case meant multiple bloggers criticizing him for making his very first trial an attempt to defend a man accused of murder. Rakofsky's fawners — the sort who figure that being an underdog is automatically a sign of having a defensible argument — have rushed to promote (in notably ambiguous terms) this supposed tort. And now comes Charlie the Censor.

But I must ask — why is a new tort necessary?

If anyone has uttered false statements of fact about Mr. Carreon, the law provides a remedy through the tort of defamation. That's still true in the internet age – it doesn't matter if the false utterance is made by blog, twitter, or cartoon on Facebook. What change could Mr. Carreon be suggesting?

Unless . . . Mr. Carreon, through the Trojan horse "fair play," is suggesting a major revision of fundamental First Amendment concepts solely to protect his own wounded pride and the feelings of his ilk. Will Mr. Carreon seek to change the familiar, crucial, and exquisitely American concepts that satire and parody are protected speech? Will he seek to erode the rule that statements of opinion cannot be defamatory if they do not imply false statements of fact? Will he seek to overturn the decades of precedent that speech does not fall outside the aegis of the First Amendment simply because it hurts somebody's feelings? Will he offer some insipid and unprincipled volume-based exception to the First Amendment, under which one or two people may criticize him, but ten thousand may not? Is Mr. Carreon foolish enough to imagine for a moment that such exceptions to free speech principles would not be abused — or is he too enraged to care?

People I respect — people I trust — say that Mr. Carreon was in the past a decent man who defended free speech. For such a man to stoop to undermine one of his own principles, and one of the most important principles of American society, is nothing short of tragic.

[admin]

Innocently, And With No Intent To Cause Any Mischief Whatsoever
Jul 26, 2012
By Ken White.
Fun

[admin]

The Oatmeal v. Funnyjunk, Part XI: What Remains
Sep 10, 2012
By Ken White.
Effluvia

[All of our coverage of Charles Carreon's journey from relative obscurity to fading infamy is collected under this tag.]

It's been a while since we visited the strange world of Charles Carreon's claims against Matthew Inman and The Oatmeal, hasn't it?

There's been nothing new on the direct confrontation between Charlie the Censor and Inman since Charlie slunk away braying that he had prevailed. Inman has done his level best to troll Carreon by raising more than $1.1 million for a Nikola Tesla Science Center, but Carreon has not risen to the bait. There hasn't even been so much as an effort to tie Tesla to the Freemasons or Rosicrucians or something.

If the Carreon/Inman battle has ended, Charlie the Censor's battles with his detractors have not. You may recall that in Chapter Seven I described how the author of the satirical blog Censoriousdouchebag, aided by Paul Alan Levy of Public Citizen and attorney and blogger Cathy Gellis, took the initiative by filing a declaratory relief action against Carreon. This allowed the blogger to preempt Carreon's contemptible and censorious threats against him by asking a federal judge to rule upon the threats without Carreon himself filing suit.

The suit proceeds — more about that later — but the most notable action has been outside of court. As the blogger himself describes, in July Carreon sent a letter to the blogger's employer, Walgreens. Ostensibly the letter asks Walgreens to preserve digital evidence based on Carreon's unsupported presumption that the blogger must have used Walgreens computers or internet connections to blog about Carreon. The context and content of the letter, however, suggest that Carreon's true motives are retaliation and intimidation. Carreon hopes to get the blogger in trouble with his employer and thus impose a high cost upon his decision to exercise his First Amendment rights to criticize and ridicule Carreon. Remember — Carreon has spent much of his career styling himself as a free speech lawyer.

Now, "please preserve digital evidence" letters can have a legitimate purpose, and are not uncommon. I've sent a few myself (for instance, when a stalker used CraigsList from work to post fraudulent "looking to trade sex for a room" advertisements in the name of a romantic rival.) But they are also a favored tool of legal thugs. Charles Carreon is not himself a convicted domestic terrorist, but by sending this letter he's using a tactic akin to what convicted terrorist Brett Kimberlin used in an effort to intimidate critical bloggers. Carreon's history of conduct in this case suggests his purpose in writing the blogger's employer in this manner. Stay tuned.

[Disclosure: I provided limited legal assistance to the blogger, mostly including helping him find suitable pro bono counsel. Since then, though I have not appeared in the case, I have continued to offer limited pro bono advice. Consider my words accordingly. Nothing in this post reveals attorney-client communications between the blogger, the legal team, and me.]