The big attack on TAH (Updated)

So many of you noticed last weekend that we were told we only had a few days left on the internet because the Ship of Fools had this big plan to get us kicked off the internet. I’m sure some of you are wondering what the big plot was. Well here’s the .pdf of the letter that Wickre’s real estate lawyer sent to our hosting service last Thursday; RACKSPACE_DEMAND_20130711163847.

Actually, it was a huge laugh – 14 pages of misinformation charging us with everything from violating the terms of service to bestiality. None of it was true. The lawyer charged that we were posting social security numbers of his client on the blog – the only social security numbers that were ever posted were mine & TSO’s by his client. here’s a sample of this lawyer’s idiocy;

First of all, we’ve been on the internet as This Ain’t Hell for nearly seven years. Secondly, doesn’t that analysis of the Supreme Court decision sound like it was written by Wittgenfeld and Sharkey? I’m sure they had their input since they’re part of the cabal arrayed against us. Kind of like an assemblage of our dumbest valor thieves.

I like how Mr. Riffkin, Esquire, drags out the scary armed veteran thing. And I wonder how he knows that 60% of us are combat veterans and 85% were polled as gun owners. I never asked you guy how many of you own guns, and I’m sure Mr. Riffkin didn’t either.

Um, no we’ve never received any “cease & desist” letter from any lawyer. They said it was because they couldn’t find me. Ya know, even though there’s a big arrow to my house on Google Earth. But the funniest part of the whole letter is the the part where they don’t want the hosting company to copy my lawyer (TSO), probably out of fear that they’ll be treated like he treats most buffoons.

But, the upshot is that I removed the addresses, phone numbers, the (our) social security numbers, and we’re cool with the hosting company now. That’s probably why one of the Wickre trolls posted more addresses and phone numbers on the blog the other night to get us in trouble again. Because you’ll notice that most of the complaints about us in that letter are actually things that they did to us.

So Wickre emailed last night that he’s calling a truce – probably because he learned that we function within the law here and that we’re untouchable. In the meantime, Wittgenfeld thinks he’s actually won something, because he’s doing the happy dance in his tiny, lonely corner of the internet unaware that yet another strike on us has failed miserably. The last message I got from our host was;

Hello,

Thanks for your response and permission to send the response. We will send this to the complainant and let them know that we consider the matter closed at this time. If we receive any other information that we need to send to you we will open a ticket for your review and assistance.

Best Regards,
Rackspace AUP

From TSO:

I’m sharing our response with you guys, because you are what makes us great. We were advised not to do that by our legal advisor, but I just can’t shake the feeling that we owe you guys this much at least. Although we want the thing with Wickre to die out, we do owe you something in terms of journalistic integrity, so you can read our response.

Mr. Schoenbaum:

I both write for and represent the military blog This Ain’t Hell, but you can see it from here (the “Blog”). I am writing in response to a complaint submitted on July 11, 2013 (the “Complaint”), by Michael L. Riffkin, Esq. (“Riffkin”) on behalf of his client Paul Wickre (“Wickre”).

The Complaint represents the website hosting equivalent of a strategic lawsuit against public participation. Wickre is significantly less interested in any terms of use issues than he is in silencing free speech and veterans’ advocates operating within the law. To date, Wickre has commented no fewer than 118 times on the Blog, which is odd considering his aversion to the nature of what we write. Those 118 comments from his IP address are directly traceable to him. They do not include the numerous comments which were deleted by the authors because they contained social security numbers of bloggers, phone numbers and addresses for the bloggers and other commenters, and some indecipherable strings of letters and numbers.

The Complaint is full of obfuscation, misstatements regarding case law, and lies regarding easily verifiable facts. I will endeavor to respond to only the issues of import regarding the Complaint.

BACKGROUND:

The Blog was founded in 2006 by Jonn Lilyea, the proprietor and chief blogger for the site. The Blog currently features a number of authors who all have served in the Armed Forces of the United States during a period of war. Mr. Lilyea served in Iraq during Desert Storm, and I served in Afghanistan during Operation Enduring Freedom, both of us serving in the Army in the capacity of Infantrymen. Generally the Blog centers on military and veteran themed posts, and is classified as a military blog, or “milblog.” Since its inception, the Blog has been honored no fewer than three times (2008, 2011, 2012) as a National Finalist for “Military Blog of the Year” which is sponsored by Military.com, USAA and other organizations from time to time. Although it does not have huge traffic numbers when compared to other blogs, this year alone it has had over 1.5 million unique visitors and 4.2 million actions. It is one of the few military blogs that is still growing in terms of monthly traffic.

Wickre disingenuously insinuates that he and Mr. Phillip D. Monkress (“Monkress”) are the emphasis of the Blog . This has no basis in fact and is contradicted by the fact that Wickre was unknown to the Blog before May of this year, and Monkress was first covered in July of 2012. As noted above, by that time the Blog had already been twice named a finalist for Military Blog of the Year.

Wickre further makes a series of allegations not supported by any facts, nor germane to Internet Hosting, including that the Blog conspired to “plan and activate numerous harassing phone calls, email campaigns, and at least one Denial of Service attack.” There is nothing in the record that shows exactly to what he is referring. There is not a single blog posting supporting such a statement. As regards the “Denial of Service attack”, none of the bloggers has sufficient knowledge of what that even means, much less the capability to effectuate it, and we are unaware on whom such an attack would be focused. We are vaguely aware that it has something to do with hackers taking down a website, but we are unaware of any website Wickre owns.

Wickre also alleges that two State’s Attorneys are investigating harassing calls with 8-10 victims. Again, we have no knowledge of any such calls. However we would appreciate Wickre putting us in touch with these prosecutors, because we also have been the target of harassing calls, all of which originate from phone numbers located in Wickre’s hometown. Among the highlights of these have been claims that the caller was a law enforcement official. We would be more than happy to aid law enforcement in searching for the perpetrator or perpetrators of this harassment. Nonetheless, again, none of that is germane to the Complaint

The authors of the Blog have appeared on FoxNews, CSPAN, BBC, CNN, HLN, ABC, MSNBC, Al Jazeera, NPR and other television and radio programs as experts on Stolen Valor. Their comments on this issue have also appeared in newspapers and other periodicals including the Military Times, Washington Post, Des Moines Register, and the Atlanta Journal Constitution.

Riffkin incorrectly identifies the issue at heart in United States v. Alvarez, 567 U.S. ___ (2012), as well as the opinion issued by the Supreme Court. He also fails to address the supervening events related to Stolen Valor. Contra Riffkin’s assertion, the Court did not rule on “display or decorations or medals incorrectly worn” but rather ruled that a law addressing false claims of military valor was overbroad. This plurality decision (Justice Kennedy) in fact specifically addressed the correct response in the marketplace of ideas, suggesting that such cases as that of Mr. Alvarez (who falsely claimed to have been a recipient of the Medal of Honor) should be left to military blogs, like This Ain’t Hell:

The Government has not shown, and cannot show, why counter speech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counter speech, of refuta¬tion, can overcome the lie.…The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the unin¬formed, the enlightened; to the straight-out lie, the simple truth…

Further, while Riffkin excoriates military bloggers as an “Internet band of vigilantes” who “accuse, denigrate, report to the authorities…” those who are found falsifying their military careers, he fails to note that in response Congress has passed a new Stolen Valor law. In fact, their response to the Alvarez decision is embodied in two aspects of the First Amendment:

1. Congress shall make no law…abridging the freedom of speech, or of the press;2. or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Having disagreed with the plurality decision in Alvarez, the Blog joined thousands of others in petitioning Congress for a new law which would pass constitutional muster. This effort was successful when President Obama signed into law a new Stolen Valor Law on June 3, 2013.

The genesis of Wikre’s argument with the Blog is Stolen Valor as it relates to his former employer, Monkress of All-Points Logistics. Monkress claimed in advertisements and public appearances that he was a former member of the Navy’s elite SEAL (Sea, Air, Land) Team IV. The United States Navy has subsequently released Monkress’ military records under a Freedom of Information Act request. He has not gone through any of the requisite training to be a Navy SEAL.

Although Riffkin claims that Wickre’s first foray at the Blog was “very noble and highline defenses of Mr. Monkress,” it was actually a 35 paragraph rambling and incoherent soliloquy that contained such hyperbole as [spelling and grammatical errors in original]:

No different, than the mob piling on in Western Europe in the 1930?s and finding that claimed anti-social existance justified genocide to societies moral offenders such as homosexuals, Gypsies, Jews, the mentally infirm, and old people. This mass hysteria, well repeated in minature here, is nothing new, than moral one-upmanship, cloaked in mob tactics. The writers of these posts, are on the slippery slope to the worst of humankind. Bathed in patriotic cliches, the writers, are not defenders of moral ethics, nor enforcers as they would proclaim, but simply another mob action in the oldest human emotive state, of group cruelty, directed at one, but in its essence leads to the worst, frenzied lynchings, the “science” of eugenics, or forced sterilization, mass murder, genocide and war.

Riffkin then asserts that various misogynistic statements attributed to Wickre are the result of a mistaken identity. Again, we have no idea what he is talking about. The references to racial and misogynistic tendencies comes from an email sent by Wickre to Monkress on May 7, 2011, forwarded to the Blog by a whistleblower. [For instance: “IN the rest of my work life until I am dead in the grave, I never want anything to do with women in my career at all, and you can do with it what you will.”] If Riffkin or Wickre would submit identification on any blog posting or comment that should be attributable to a “10 year old site of [a] racist-misogynist Indian” instead of Wickre, we would be happy to address that.

Lastly, Wickre claims that the Blog has unfairly targeted his wife (“Williams”), claiming [again, not edited for spelling and/or grammar]:

Ms. Williams is the wife of Mr. Wickre and is a quiet non-involved actor. Because of her relationship to Mr. Wickre the bloggers decided to personally attack her and put her personal information on the website, in an attempt to harm Mr. Wickre further. Her privacy has been severely disturbed for nothing more than being married.

On that point we finally agree, it was severely disturbed for being married. Alas for Williams however, it was not a blogger or commenter who brought her up, but rather Wickre himself in a comment posted at 11:12 PM on June 6, 2013:

I am in Bethesda MD, wealthy and my wife is in Congress, And yes I own Jaguars, which you never will…

Just raise the bile, you anonymous posters, keep it up,

I am 57 , white, European and the worst enemy you wish to have. IP tracking, your history, your past. Keep it up, I am here. Where are you? Come see me, as I will see you, past the Internet. Yes It is true I work for DHS and have access to the most sophisticated forensics in real time. Keep talking and posting so we can locate and find and excuse, Come on, let me geo-locate and get your community and carrier, break the IP as we did Jonns and get within 70 feet of his home, for our collective memory.

Wickre closes this missive with “TSO; Gotcha Baby!” Shortly after this was posted, a friend received a phone call from Wickre (at 6:00 am in Normandy where he was honoring D-Day) which contained the exact same phrase. This voicemail has been stored for law enforcement. Apparently Wickre was unaware he had the wrong person’s phone number.

Wickre alleges six specific “violations of the Terms of Service” which I will address serially. Please note that page 1 of the letter denotes a certain order to the claims which does not actually conform with the manner in which he later addresses each.

1) Mature Language/Porn.

Wickre seems aghast at the mature language sometimes used on the Blog. As someone with a wife “in Congress” however, he must be used to obscenities from time to time.

Speaker of the House, John Boehner once referred to a bill as a “piece of shit” and later told the Senate Majority Leader to “go fuck yourself.” Vice President Joe Biden referenced a key legislative victory for his administration as a “big fucking deal.” Former Vice President Richard Cheney once referred to a New York Times reporter as “an asshole.”

Regardless of whether Wickre finds such language offensive, it is the language of our times, especially in dealing with heated political issues. The Blog is a military blog written by veterans of combat, largely for veterans of combat. The military vernacular is not one that would commonly be used in a place of worship, a third grade classroom, or apparently Wickre’s household. However, no less an authority than the Supreme Court has ruled that such language falls within the purview of Free Speech. Take for instance Cohen v. California where the court held that wearing a jacket bearing the words “Fuck the Draft” was within the rights of an individual. The Blog concedes willingly that it uses phrases that might not be appropriate to everyone, however there are thousands of blogs that Wickre can visit and not have to face the daunting threat of curse words.

We are unsure of the source of the Complaint’s pornography assertion; there are certainly no graphic images on the blog, which is the typical medium one thinks of with regards to pornography. If Rackspace believes that any of the comments is likely to be used for sexual gratification by a reader, we are certainly amenable to removing it immediately, however all the comments seem to be rhetorical hyperbole and insults, not something geared towards sexual arousal by the reader.

2) Inciting violence, threats, abuse, and harassment.

It is worth noting again that Wickre has left over 118 comments on the Blog. The Complaint references “calls from a self identified blog poster in Missoula, Montana” but there are not in the slightest bit germane. Whatever “blog poster” lives in Missoula, Montana, I can assure you that he is not an author for the Blog, nor did he get the phone number from us. Neither of course did any of the authors encourage him to call anyone. Such issues are rightly handled by law enforcement through investigations, not by filing complaints with a website hosting company.

Criminal threats are defined in law as those made with the intention to place someone in fear of injury or death. It is the intention of the person making the threat that matters. The intent of a person who makes threats is usually determined by the circumstances surrounding the case. (http://www.criminaldefenselawyer.com/crime-penalties/federal/Criminal-Threats.htm) When someone places a condition precedent to something (“if you touch my moon pie, I will punch you in the face”) it removes the “threat” from any (nascent) justiciable statement. Most of the cited comments (again, comments, not blog postings) listed are of the “if”… “then” variety that is not a threat. No rational human being could possibly think that commenter “Nik” was pining to “hammer a six-inch spike through [Wikre’s] penis” as one example listed in the Complaint.

Wickre, over the course of two months, has followed a predictable pattern of attack, stir up trouble, and then immediately withdraw. In fact, he was clearly “trolling” for comments like those listed. Take for instance this comment left by Wickre at 5:42 AM on May 25, 2013:

Outspent, outtalked, out manuevered, you can ramble on all night. You will never find me. But I have you by clever means, those that we want. Outspent, outfoxed, really stupid in your opposition, you are nothing.

Not interested in you unless you irritate me. There is the fake IP world you traffic in, and then there is the real world of States Attorneys, Courtrooms and prosecution, with real time jail, probation agents and fines.

Don’t really care about your IP ramblings, you idiots, not interested in you. Sniperscope ready, we want Lilyea and accomplices to teach a lesson to you morons.
Lilyea is a disturbance. TSO is a traitor, The rest of you are misguided.

It seems implausible to assume that a man so worried about threats would make such comments absent a goal of inciting just what he purports to want to fight against.

Riffkin asserts that:

This is a violent crowd with over 60% of the bloggers seeing combat action and 85% polled owning weapons. This gives my client great concern and reasonable fear for his safety and the safety of his family.

This statement reflects the tired old trope that veterans of combat action are more prone to violence than others, a meme which has been dismantled more times than would be practicable to reproduce here. (However, for a good discussion of the issue, one need only read this by the Department of Veterans Affairs: http://www.blogs.va.gov/VAntage/6026/the-%E2%80%9Cdangerous%E2%80%9D-veteran-an-inaccurate-media-narrative-takes-hold/). Ironically, Riffkin’s client, Wickre, has pled guilty to resisting arrest and violation of probation, while the authors of the Blog have no such history of violence outside that which they were hired to visit upon enemies by the United States Government.

The Blog welcomes the opportunity to address some of the charges made by Wickre in the “real world of States Attorneys, Courtrooms and prosecution, with real time jail, probation agents and fines.” The Blog is confident that it would be fully exonerated in any proceeding. Nothing currently on the Blog by any of the writers could conceivably give rise to criminal proceedings or successful civil litigation.

3) Defamation and Libel.

The Blog is no stranger to the specter of threatened defamation and libel lawsuits. Of the 30 or so threatened lawsuits, none has ever materialized. Of those 30 or so, only one has ever consulted an attorney, and that attorney quickly withdrew his threats.

Wickre lists roughly three pages of allegedly libelous statements, none of which rises to the level of an actionable statement. A perfect illustration of the issues involved here was present in a recent court decision in Colorado dealing with another individual accused of Stolen Valor. In that case (Gidduck v. SOCNETCOM) the court awarded all attorneys’ fees to the Defendant milbloggers, and threw the case out with prejudice. The court there noted that:

The statements by Defendant Warrington that Plaintiff Giduck was a liar, fraud, scammer and imposter because he misrepresented his credentials are not actionable. Opining that someone is a liar, a fraud or was untruthful about his or her background, is, perhaps unfortunately, a common implement in American discourse. Such epithets are obviously statements of opinion and are protected under the rules enunciated in Milkovich and Burns….

Defendant Niblett’s statement that Plaintiff Giduck is a “piece of shit” or, a “fool,” a “fraud,” a “poser civilian,” and a “clown” are patently Niblett’s opinion and are not actionable. If every statement along these lines formed the basis for a libel or slander case, the courts of this country would be entirely devoted to the litigation of defamation claims. These are statements of opinion and are protected under the rules enunciated in Milkovich and Burns…

The statements attributed to these Defendants regarding Giduck were blunt, uncomplimentary, and probably “rhetorical hyperbole.” But they were also privileged statements of opinion protected by the First Amendment as applied in a litany of Supreme Court and Colorado appellate cases.

Each of the comments regarding Wickre on the Blog fall into the same categories of rhetorical speech as the claims made about Gidduck. None of them are legally actionable as defamation.

4) Violation of the Privacy of Wickre and Williams.

Wickre voluntarily came to the Blog and inserted himself into an issue of public interest, to wit, the potential Stolen Valor allegations against his former boss Monkress. (Wickre was terminated from that employment by Monkress.) As shown above, Wickre brought up his heretofore unknown wife, Williams, in his comment threatening Congressional action against the Blog:

I am in Bethesda MD, wealthy and my wife is in Congress

All further comments regarding Williams deal with clarification by readers and commenters (and myself: “Your wife is not ‘in congress’ she works for a congressman”) and stem from this initial statement. In fact, everything in the comments is public information which Williams herself shares on her Linked In profile (http://www.linkedin.com/pub/karen-williams/B/4BA/444) and on a public interest website devoted to publicizing the salaries of Congressional staffers (http://www.legistorm.com/person/Karen_M_Williams/16500.html). It is highly unlikely that anyone would ever have known about his wife had Wickre not insinuated that she was a Member of Congress.

5) Copyright Violations of the State of Maryland.

A search of the Maryland Judiciary Case search (located here: http://casesearch.courts.state.md.us/inquiry/inquiry-index.jsp) reveals that Paul Wickre has 35 entries, ranging from civil (a 2000 “Foreclose rights of redemption” for instance) to criminal (pled guilty to resisting arrest and violating probation in 2007) to a fugitive warrant issued by the Commonwealth of Virginia. Such things are a matter of public record, and if the State of Maryland has a copyright for their website, they seem reticent to publicize it anywhere. In fact, the site access “Terms of Use” that Riffkin mentions in his complaint specifically states:

While much information is made available to the public through this site, some information may be restricted or require registration to obtain. All of the information collected at this site becomes a public record that may be subject to inspection and copying by members of the public, unless an exemption in law exists.

If there is a violation of a copyright owned by the State of Maryland, then it would be the copyright holder themselves that would put forth that claim, not Wickre who seeks only to exclude from the discussion his history of violence.

6) Boosting the Search Engine Rankings of the Google Search page/rank algorithm. (Odd capitalization contained in the complaint.)

Again, we have no idea what he is referencing here. Although he says one can “manually hit the browser again and again” to raise the traffic, at least on the site meter we use (“Get Clicky”) it would only register that person once. Additionally, the stated terms of service as contained in the Complaint discuss “third party sites” and we have neither the time, the inclination, nor impetus to send traffic to a third party.

Virtually every blogger tries to optimize search engine results. When one Googles “Stolen Valor” we want the Blog to be high up in the search results. Although I am sure it is possible to do something to alter that artificially, no one who writes for the Blog has the technological know-how to do so. The Blog is not set up to be some sort of revenue cash cow; each year it costs thousands of dollars more to maintain than it brings in from advertisements.

As regards this last claim, we honestly have no idea what he is talking about, and would welcome the opportunity to discuss it with Rackspace.

CONCLUSION

Wickre voluntarily came to the Blog , even admitting he did so to defend his former employer. Since that time he has left over a hundred comments, and sought to have the Blog removed through any means available to him. The Complaint is merely one in a string of harassing attempts to silence critics of Monkress and All-Points Logistics (“APL”). This issue with Stolen Valor and APL is a matter of public interest because APL receives in excess of $40 million per annum in taxpayer funds, and the Stolen Valor act has once again made it illegal to falsify a military record with the intent to financially benefit.

If there are any blog postings or comments on the site with which Rackspace takes issue, we are more than happy to take a look at them, and edit or remove should that be deemed necessary for our continued presence on Rackspace servers.

We wish to close by noting the falsifications and professional ethics lapses in the Complaints’ penultimate paragraph which I will cite in full (one again, grammatical errors remain uncorrected):

We have already contacted the blog owners with formal cease and desist and they refuse to take down the offending material. In fact, the co-blog hoster functions as the blog lawyer, and he is extremely biased. Therefore, we would request that you NOT copy him on this complaint as that will set off another round of denigrating speech, threats and incitement to action.

No formal cease and desist of any nature has been proffered to This Ain’t Hell with the exception of this complaint. Wickre in an email to me admitting as much:

Back in May, I was informed that the APL lawyer could not determine your household address for service of the cease and desist order coming from Ford-Harrrison. Their agents as an aide to civil process, attempted to get you on the phone from your mulit[ple addresses to determine your actual address for service. That is what I know of it, and once determined, for civil process purposes, I hope you agree that there has been no further contact to people at your residence(s) once your were located in May.

Wickre is not represented by APL, or Ford Harrison. The “we” of “we have already contacted” is not accurate. Nor is it true that we were in fact contacted. Mr. Lilyea’s address is listed on the Blog’s website, along with two separate phone numbers at which he can be contacted. No contact took place save for one phone call from a lawyer for APL who agreed with Mr. Lilyea that they were without legal right to demand anything. Further, on May 18, I contacted APL’s attorney via email, at which time I stated:

Should you chose to file suit against our blog, you may do so at either my home or work address which I would be happy to supply.

She has never contacted me. Neither has Wickre’s current lawyer, despite repeated entreaties that he do so.

Riffkin’s assertion that I am “extremely biased” is the most truthful thing he has written in the complaint. Zealous advocacy of a client is what is expected of any attorney. However, I do so within the framework of what is legal, and any assertion to the contrary is specious and vindictive. In attempting to exempt my client from his legal representation in this controversy, Riffkin is trying to “stack the deck” towards his client in an unethical manner.

Based on the aforementioned facts, it would be inappropriate and unnecessary for Rackspace to interrupt the service of the Blog. We would like to reiterate the Blog’s demonstrable commitment to abiding by the user agreement through the administrators policing of comments on a near-24-hour basis for potentially inappropriate information–nearly all of which originate from an IP-address located in the vicinity of Wickre’s domicile (including his posting of my date of birth, location and social security number.) In each instance, the Blog has immediately removed such comments and will continue to do so.

As a leader in the milblog community, the Blog has measures in place to prevent members of the public from engaging in such behavior. Although this particular issue may be easier resolved by simply banning Wickre and others from known IP addresses from commenting or accessing the site, the Blog owners have been resistant to such an extreme course of action up and until individual comments cross the line into inappropriateness.

We look forward to working with Rackspace to identify any posts or comments that run afoul of the terms of use. Nonetheless, the vast bulk of the Complaint here either is factually challenged, incorrect as a matter of law, or the erroneous interpretation of events.

Mark Seavey, Esq.

 

TSO ADDS:  It is over guys.  Do not contact Wickre or his attorney.  Let it fade into the night.  Riding on a unicorn.   If this comes up again, it will likely be in a real courtroom, and we don’t want to have to defend something stupid.  While we know that we’ve done nothing wrong, we don’t want to have to defend against nonsense if we can help it.  Sort of like the designated batter rule.  It is what it is.

Category: "Teh Stoopid"