More than a year ago Ahmed Mohamed — later derisively known as "Clock Boy" — had a run-in with Texas school administrators and law enforcement. Your preconceptions may have driven your reaction. Was he a victim of insipid if-you-see-something-say-something culture, as my preconceptions suggested? Or was he part of a public relations stunt designed to promote a narrative that Muslims are victims of discrimination, as many claimed? Did he make a clock out of electrical components that was mistaken for a bomb by hysterical and foolish people, or did he pile a handful of electronics into a case intending that it provoke, as some have argued? This post isn't likely, or intended, to change your mind on that.
Whatever Ahmed and his family intended before the incident, after the incident they sought to make maximum use of it. That effort included lawsuits against media commentators and local officials. This week, Mohamed Mohamed (the father) and Ahmed Mohamed (the son), who were in my opinion poorly represented, ran headlong into the buzz saw of Texas' vigorous anti-SLAPP statute.
Mohamed Mohamed, acting (with questionable judgment) on behalf of Ahmed Mohamed, filed a civil complaint in Dallas County, Texas naming The Blaze, Glenn Beck, the Center for Security Policy ("CSP"), CSP member Jim Hanson, Fox Television, Fox correspondent Ben Ferguson, commentator Ben Shapiro, and Mayor Beth Van Duyne. The complaint, a painfully disorganized and meandering composition, asserted (ambiguously) libel, asserting that (1) Glenn Beck, Jim Hanson, and Mayor Van Duyne suggested on Beck's show that the Mohamed family staged the incident for PR, (2) Fox 4 News correspondent Ben Ferguson suggested that the incident was planned by Mohamed Mohamed, and (3) Ben Shapiro told Fox News that he thought the incident was a hoax.
Mohamed's complaint vexes me. Not every statement one can utter is protected by the First Amendment; some statements are genuinely defamatory and outside legal protection. Defamation claims — particularly on matters of great public controversy — ought to be made in a clear and effective matter to limn the constitutional and factual issues at play. Mohamed's complaint falls short. It carelessly conflates statements of fact and statements of opinion, fails to articulate precisely what statements of fact are alleged to be false, and seems drafted without any informed thought about how to resist the inevitable anti-SLAPP motion.
The defendants, most of whom were quite well-represented to date, pounced. Fox and Ferguson came first, moving to dismiss under Texas' anti-SLAPP statute. As I've explained before, an anti-SLAPP statute gives defendants a procedural vehicle to ask the court to dismiss a lawsuit aimed at protected speech, and to recover attorney fees if they win. Fox and Ferguson argued that Mohamed had bolixed up the type of defamation they claimed1, that Fox and Ferguson were merely reporting on proceedings by the school district and city and were therefore protected by Texas' reporting privilege, that their repeating of the Mayor's statements was an accurate report of a public official's statement on a matter of public concern and therefore privileged under Texas law, and that Ferguson's commentary was a statement of opinion and rhetorical hyperbole rather than fact and therefore not defamatory.
Fox and Ferguson's motion was comprehensive and supported by facts, evidence, and extensive legal citations. Mohamed's opposition was scattered and perfunctory. It did a very poor job of addressing the crucial distinction between protected opinion and potentially defamatory fact, devoting a few pages of poor argument unsupported by legal authority. So it is not surprising that the court granted Fox and Ferguson's motion in full and awarded more than $80,000 in fees to Fox and Ferguson.
Blaze and Beck, through one set of lawyers, and CSP and Hanson, through another, also filed anti-SLAPP motions — motions too vast to host here. Their core argument throughout was that their challenged statements were opinion, commentary, and hyperbole, not potentially defamatory statements of fact — and they were substantially aided in those arguments by the very language of Mohamed's complaint. Mohamed attempted to fix this problem by filing an amended complaint. But the amended complaint mostly served to emphasize the rough-and-tumble cable-tv-hyperbole nature of the defendants' commentary, and to add references to mostly anonymous trolls who reacted with (arguably factual) accusations to the controversy. Mohamed's amended complaint also undermines itself by arguing how Beck's and CSP's statements should be understood as an accusation of involvement in terrorism, which merely serves to emphasize the statements' hyperbolic and opinion-based nature. Mohamed's single brief in opposition to both anti-SLAPP motions is, once again, woefully inadequate to the task. It utterly failed to engage the crucial distinction between fact and opinion — the heart of the case — and offered no useful authorities nor persuasive arguments on that point.
This week, after a length hearing, the court granted both motions. According to a triumphant press release by CSP's attorneys, the trial court pressed Mohammed's lawyers for specific false factual statements without result. I've seen no transcript, but that would be consistent with the poor quality of the papers. The court has now issued orders granting the motions and invited these defendants to submit affidavits documenting their attorney fees for recovery. I'm going to estimate that those fees from these defendants will total between $200,000 and $300,000. Mohamed's only consolation is that the court refused to make the findings necessary to pile separate monetary sanctions on top of the attorney fees.
Ben Shapiro has an anti-SLAPP motion scheduled for hearing at the end of the month. The motion argues forcefully and effectively that Shapiro's commentary was also opinion, not fact. His argument is, if anything, stronger than that of the other defendants, and I'd say his chances of prevailing are excellent. Mayor Van Duyne also has a motion pending. The motion — filed by a City Attorney — is dramatically less thorough than that filed by the other defendants, possibly to her peril, but she may benefit from the collective impact of the other motions, even though some of her statements are more susceptible to interpretation as factual claims.
Out of all of the sound and fury, this case mostly turned on one of the legal issues most familiar to Popehat readers — the distinction between statements of fact (potentially defamatory) and hyperbole and opinion (not potentially defamatory unless they imply false facts). Whether or not the commentary about the Mohamed family was fair or decent or rational, it was patently opinion based on reported facts about an issue of public interest, and therefore protected by the First Amendment.
Mohamed has been utterly crushed by the Texas anti-SLAPP statute. This is the right result; his frivolous lawsuit was a classic SLAPP, calculated to harass detractors, garner publicity, and wage political war through other means. Though he could have been much better represented, the result would likely have been the same, and should have been. This observation is not an endorsement of political or religious triumphalism accompanying this result.
- This is tedious, but basically, Fox argued that Mohamed accused defendants of libel per se (meaning libel falling into certain specified categories that does not require proof of resulting damages — for instance, an accusation of a crime) when in fact the facts showed only garden-variety libel, sometimes called libel per quod, because nobody accused Ahmed of a crime. ▲
Last 5 posts by Ken White
- "Clock Boy" Gets His Clock Cleaned with Texas' Anti-SLAPP Statute - January 11th, 2017
- In a Crowded Field, University of Oregon Distinguishes Itself At Unprincipled and Lawless Censorship - January 10th, 2017
- Popehat's 2016 Censorious Asshat of the Year: The City of Parma Police Department - January 6th, 2017
- There's A Pony Born Every Minute - January 6th, 2017
- Criticizing An Adverse Witness -- Free Speech or "Retaliation"? - January 5th, 2017
Great read. It does suck that proper legal attack and defense in this country require hundreds of thousands of dollars in legal fees effectively preventing poor people with a legitimate legal issue from seeking justice.
Good advice for more reasons than one, usually attributed to Mark Twain: Never sue a man who buys ink by the barrel.
Got to agree that Mohamed Mohamed acted with questionable judgment and likely had poor counsel.
And congratulations for using "limn" in a blog post. My great-great-grandpappy was a limner, but I can only draw flies.
Doesn't the clock boy have a separate suit against the school district and police department alleging some kind of civil rights violations?
If so, would a judgment granting attorney's fees in this case be collectible against the proceeds of the other suit? Seems like they may have really screwed themselves here.
One would hope that better representation would have told him he didn't stand a snowball's chance in hell.
I always feel as though the lawyer should be on the hook for some of that cash, given the horrible job he did.
Do you mean limit here?
is anyone else waiting (with bated breath) the dialog between Ken and Kenfoilhat re: "actual malice" and Buzzfeed?
So, is the son on the hook for any of this?
Perhaps better representation did tell him that, but that answer wasn't good enough for him, so he ended up with shitty representation.
Holy shit. While it's right that the defendants shouldn't be out of pocket for a frivolous case, that's a brutal cost for a family to have to bear – one that goes well beyond any pain that they deserve to suffer for bringing this case. I feel sorry for them.
You don't need to get that far. If Buzzfeed had reported "Donald Trump hired Russian hookers for pissplay," you might need to talk about actual malice (assuming it's false). To the best of my knowledge, Buzzfeed reported "there's a report asserting that Donald Trump hired Russian hookers for pissplay." That's provably true: the report exists, and it says what Buzzfeed purports.
Aaron: I reckon limn fits better. What would it mean to limit the issues at play?
Encinal, I hope not. He's a kid (somewhere in the 10-12 range at the time of the incident, if I recall correctly); he didn't call the lawyer.
I feel like his parents have made a series of poor choices.
@En Passant
I think it was Samuel Clemens who wrote that.
What?
Excellent article. Someone took a knife to a nuclear exchange.
Don't. They brought it on themselves. Besides, I doubt they'll end up paying for it anyway. I wouldn't be surprised to see some like-minded advocacy group, probably CAIR, doing a fundraiser in order to pay for the fees.
bolixed vs bolloxed. I have somehow never run into the first spelling before, but apparently it's more common?
Regardless, this is an excellent example of writing to persuade people with different belief systems. I thought you'd lost the knack for that recently.
Should mention that the case against KDFW Fox and Ben Ferguson was dismissed a few weeks ago (dec 27, 2016) and those defendants have already been awarded just over 80k in legal fees.
Should also mention the Mohamed's lawyer – Susan Hutchison. Very poor advice to file this suit and her pleadings were very sloppy. She handed the case right to the defendants.
Chalk one up for 1A.
This post didn't show up in my RSS feed (Feedly). I noticed when you posted about it on Twitter and then double checked to make sure I hadn't overlooked it. I wanted to let you know in case it's something you can fix on your end.
ETA: Yesterday's post about University of Oregon also didn't make it to the feed, but last week's about Popehat's 2016 Censorious Asshat of the Year did.
It's just too bad you ended your asshat awards too soon. IMO, deserving of this sort of action is the hat suing Mike Masnick over at techdirt: First amendment suit
This has been going around for awhile, and this guy got a settlement from Gawker which proves nothing. As a guy who was around and in the biz at the time – nope this ***hat did NOT invent email, and is suing a pretty good outfit for pointing that out.
@FoxOTR:
I should mention something I spent several paragraphs on and linked to documents about? Hokay.
@Ken White
Ah, I see. There it is in the 6th paragraph. How did I miss it? Maybe present the rulings in chronological order?
also, the plaintiffs are barred from any appeal unless they pay tens of thousands up front.
@Jordan Chandler
And his grandparents.
@Dudefella
That's something I've been wondering about, and haven't gotten a clear answer. It seems like defamation law does hold people liable for repeating others' claims. For instance, if I'm a publisher, and I publish a book by Ken White claiming that Trump hired hookers for piss play, I can be held liable in a defamation suit. Surely the act of publishing a book does not constitute making the assertions contained within it, but merely constitutes informing its readers of the author's assertions. Why did congress have to exempt websites? Again, a website that hosts a discussion forum is clearly simply presenting other people's claims. Where is the line between repeating speech and participating in it?
The short answer:
I was wrong.
Traditionally, the republication of a libel is just as libelous as the original publication. It doesn't matter whether the republisher couches the republication in terms like "allegedly" or "so and so said that."
There is something called the "neutral reportage doctrine," which grants the press absolute immunity from libel suits when they republish potentially defamatory statements in the course of fairly reporting on a public figure. I had assumed that the doctrine would apply here. But in doing a little research, I learned a few things that I evidentially forgot after law school (more likely, forgot as soon as possible after the exam): (1) the original decision that set forth the neutral reportage doctrine, Edwards v. Nat'l Audubon Soc., 556 F.2d 113 (2d Cir. 1977), was extremely narrow to begin with; (2) it's been narrowed further since; and (3) only a few courts have adopted the doctrine.
So yeah, probably doesn't apply to Buzzfeed; my bad. You're likely correct; actual malice would probably be the test. Unless I'm missing something else, too, which is entirely possible.
The law has been adequately addressed; I popped in to address the tech. His clock was total crap. He didn't actually build a clock, he extracted the timekeeping mechanism from another clock, put it in a new case and wired low power to it, then he wandered around his school showing it off like a little Muslim mousetrap until somebody bit. This comment is not intended to excuse the stupidity of the school personnel who bit. I suspect Daddy was the one who set the mousetrap.
And then Barack Obama invited him to the White House. Even back when I was Ahmed's age, I would have been embarrassed to show such a crude instrument to the President. I voted for Hillary the other month not because she was the better person, but on account of stability and continuity, which are things I value in a President, however, I will have zero problemo if our incoming El Caudillo banishes them to Daddy's native land, where at least they won't have to worry too much about a six-figure American court judgment for attorney fees.
Haven't they fucked off to Qatar yet? Seriously, didn't they make a huge deal about how they were leaving America to go hang out in Qatar, benevolent rapist theocracy of their dreams? Why aren't they gone yet?
Orderofthequaff is giving clockboy too much credit. All he died was pry the case off a digital clock and stuff the guts into a pencil case.
Now, I have no idea how Ahmed actually presented this clock to people around his school. For all I know it was just, "hey look, this is what's inside a digital clock". But on the media rounds, certainly, he presented it as "I made this". (side note, it's seriously disappointing how quick media outlets were to lap up this story of a genius kid who invented a clock from spare electronics, without checking any of it. Shit, I was ripping digital appliances apart by the time I was kindergarten, my parents never told me it was a sign of genius!)
Ahmed's dishonesty, which I can't really hold against him since he's just a kid, certainly fed the theory that he or his father deliberately did this to embarrass local officials and get media attention. Though somehow I think the usual suspects would have accused them of that regardless.
@DoctorX
I think the joke's on you. ;)
What about the Holy Ghost?
The thing is,mthe is the Law, and then there are the Rule.
The Rules say that if you leave a bar loudly proclaiming that you are going to get your stuff and be back looking for trouble, and you come back in with your hand under your jacket, you are supposed to get shot by the general sense of the room.
The Rules say that if you are a member of a minority that is generally considered (because of multiple real incidents) to be prone to commit bombings, coming to school with something in a makeshift casing that has a bright red timer-like disolay, you are asking for trouble.
The Rules are seldom fair, and are often based on the premise that Nature abhors no vacuum more than one with ears.
"The Rules say that if you are a member of a minority that is generally considered (because of multiple real incidents) to be prone to commit bombings, coming to school with something in a makeshift casing that has a bright red timer-like disolay, you are asking for trouble."
Right, and it's vital that kids who are members of those minorities learn these rules as soon as possible so they can run their lives accordingly and have some hope of leading normal lives. Before they do any normal kid stuff, they need to remember that they are a member of a minority whose actions will be evaluated under different standards than those applied to their peers.
I wonder if Susan Hutchison was the first attorney they approached or whether they had to go through a string of them before they got her to agree to represent them.
I also wonder if her firm was handling that on a contingency basis or money up front. Personal Injury firms usually advertise that they work for contingency fees. If so, they didn't cash in on this one.
@OrdewroftheQuaff:
I had heard they didn't allow him to bring the clock to the White House, but couldn't find anything confirming or denying that.
A breakdown of the tech here, if you're interested.
@Jay:
Don McLean Mohamed?
@Jay
The Holy Goat.
It should be mentioned that the Mohameds' attempts to get redress for non-speech offenses — namely Ahmed's allegedly illegal handcuffing, arrest, detention, and interrogation without his parents — are still pending in a completely different case, Mohamed v Irving Independent School District et al., No. 3:16-cv-2283 (N.D. Tex., filed August 8, 2016). In that case, motions to dismiss from all the defendants (city, school district, and school principal) have been fully briefed since November 22, with no hearing date yet set.
Unfortunately, the Mohameds' counsel in that case is the same bloviating Susan Hutchison, and I'm guessing that the defendants will at least succeed in their motion for parts of the complaint to be struck as "inflammatory, irrelevant, and prejudicial".
@Alan:
Irrelevant? I was enthralled by the details of the family's history, especially the extensive details on the family's travels and Ahmed's education.
@M B:
I suspect it was homesickness. In the civil complaint Ken linked to above, it stated that the family had moved back to the Sudan, but "The kids all became very homesick for the U.S.A. and the family moved back to Irving…"
The Wikipedia article on the Ahmed Mohamed clock incident states that " In late 2015, his family decided to accept a scholarship from the Qatar Foundation and move to Qatar, partially because of unevidenced accusations of terrorist links and continued harassment from conspiracy theorists. They returned to the Dallas area on June 27, 2016, saying they missed the relatives who had stayed in the U.S., and they would return to Qatar in the fall.
Gee Texas doesn't take kindly to Islamic lawfare. How sad.
Clock Boy, along with his father Clock Daddy, should seek moving venue to Maryland where they can get better representation: Brett Kimberlin The Speedway Bomber would surely step up.
For those commenting at the kids technical prowess at saying he "invented" you are either disregarding the age of the child or ignoring it intentionally. He's too young to fully understand the implications of what he did. At his age what he did was probably pretty cool, not only to himself but to his peers as well. As adults we know it was nothing of significance but the type of investigatory exploration of electronics that he performed is more than 99% of his peers would attempt.
IMO the reaction of the school and police was over broad and reactionary precisely because of his ethnicity. That was wrong in the same way that his lawsuit targeting the press was. IMO he had a valid claim of mistreatment by the police, but he won't find recourse in the courts for that because of qualified immunity.
His parents should have stuck with bringing this to the public's attention and using the publicity to shame the police department for their bad behavior. (and if they were serious used it during the next sheriff's election to get him fired) In effect by launching these suits they've punished themselves in a dollar amount that would bankrupt 90% of Americans. Fortunately from them they can declare bankruptcy and throw off the bulk of these claims, but the financial cost of that is tremendous and it's unfair to the media groups that will be stuck with these legal costs.
Nothing about these suits was good and they should be very angry with their lawyer, particularly for the quality of her work based on the filings.
@Trent:
I agree, but I don't believe it is the only reason. I believe Terri Burke, Executive Director of the ACLU of Texas, said it best:
Right. Truth is not always a defense to libel. True statements made maliciously about a private figure are not always protected. Truthfully reporting that a false claim was made is not always protected. Literal truths that imply things that are false are not always protected.
@Trent
He was 13, not 7.
Where I grew up, most boys that age assembled their own PCs from spare components of discarded PCs. Which doesn't require much electrotechnical genius (basically just finding compatible components, sliding cards into slots, connecting cables, trying a different combination if it doesn't work), but is still a lot more involved than prying the case off a clock. And they didn't consider it some sort of commendable achievement – it's just what they did so they could play video games.
I suppose it's debatable whether Ahmed's "I built it" statement (made to the media in the days after the incident) was innocent exaggeration, or something his father told him to say to maximize positive publicity.
But the "boy genius scientist's dreams crushed by racism" narrative that the media (and implicitly, even President Obama) ran with based on that statement, was definitely idiotic.
Of course, the conspiracy theories claiming that his dad planned the whole thing in advance and used his child as a prop, is a little far fetched as well.
My compromise theory, based on the publicly available evidence and Occam's Razor, is this:
1) Boy takes a commercial clock out of its case, and puts it into a pencil case to show to his friends — either because he just thought it looks cool, or because he thought it looked like a bomb and he wanted to prank his friends. (Boys will be boys.)
2) School and police overreact, as they have many times in recent years (in different cases involving children of different races/religions) as a result of terrible "Zero Tolerance" policies.
3) Boy's father, Islamic(Islamist?) cleric, political advocate, and participant in past publicity stunts, now (after the fact) sees it as an opportunity to advance his "portraying America as islamophobic" agenda, and goes 'all in' with the media publicity, resulting in high-profile and pretty clearly staged/coached press and social media appearances for the boy.
@Brian Kemp :P
However, Actual Malice (since Trump is a public figure) is a very, very high bar to overcome when someone is truthfully reporting that a third party made a claim, regardless of whether that claim is libelous. It would require first proving that they knew the third party claims were false (which, thus far, even the US intelligence agencies can't determine) and then, knowing it was false, they published with the intent of harming Trump's reputation rather than because it was, even if false, major political news.
@ineth
If you and all the people you knew were disassembling random electronic gear and reassembling it in different containers at the age of 13 you were a very serious nerd and all your friends were as well and you likely had engineer parents in some seriously upper class neighborhoods.. Though technically it's not any different to take a clock apart and reassemble it as it is to put computer parts together, neither is technically challenging in any regard or requires any special skills.
But at the same time if you got an assembly together at your local school of 13 year olds and asked the kids to raise their hand if they'd assembled their own computer without assistance you'd be dealing with single digits (the only reason you'd get any is because of gaming, not natural curiousness about electronics) and if you asked them to raise their hand if they'd disassembled a different electronic device (such as a digital clock) and put it into a different container you would be lucky to get a single hand. Now you may get more hands if you were in a part of the country where the children were likely to have engineer or technicians parents who worked in field designing and assembling such devices and/or routinely did such activities with their children or were in a school for gifted kids. But such places are few and far between IMO. In most of the US kids would get their asses beat if they disassembled an electronic device that wasn't hopelessly broken.
I'll say it again, at 10/12 or 13, whatever of these ages the kid was what he did isn't common. It also wasn't a big deal or even notable for it's skill. What it was, was a great example of how schools have worked to stamp out any sort of inventiveness in children. How racist and/or religious bigoted attitudes by school staff and police escalated the entire situation into a bomb scare. How an innocent kid exploring electronics was treated with automatic assumptions of illegal intent (even though he's a child and well below the age where such an action is common enough to be even on the radar). How many people saw the double standard that "brown" kids are treated with more aggressive police action, automatically assumed motives and harsher penalties. And it presented an epic example of how zero tolerance policies are destroying inventiveness, exploration and experimentation within our schools.
This got so much attention because if he'd been a blond haired white kid he would have been suspended at the worst, not arrested. And the press ran with it because it got people watching and reading and selling advertising (it also had a great picture of a kid in handcuffs behind his back). It ran circles in the tech world because it showed how behavior that 20 years ago would have been praised and got the kid into programs to purse interests like Robotics and have turned into reactions that get your arrested. It was all over the pages in the communities of people trying to get rid of zero tolerance policies and among the people fighting such reactionary and dangerous over-reactions in schools. And it got attention among the people that fight racism and bigoted religious views in our schools. And of course the reaction by the alt-right fanatics and racists who jumped all over it trying to point to conspiracy theories and bad motives and how all Muslims are terrorists only exacerbated the press coverage and triggered a Streisand effect that kept it in the news for days because the circus was drawing eyeballs.
What the kid did wasn't notable or skilled in any way. But what he did wasn't common in his age group and it exhibited interest in things that most kids his age aren't interested in spending their free time doing. Attacking this behavior and ascribing motives just like the police did is just plain stupid. We've done a damn good job of stamping out this type of exploration in this country. When I grew up if I'd done what he did I would have been encouraged to do more and explore electronics as a potential career, not arrested and expelled. And that's exactly why the public was so interested in this story.
Trent, you're still giving the kid too much credit. He didn't reassemble anything. He pried the case off a digital clock, and stuffed the still-connected-guts into a pencil case. It doesn't seem he ever disconnected the components from one another.
No complaints about the rest of your post. I'm sure if Ahmed actually had built a digital clock out of spare electronic components, the same people would have accused him of staging this to make a political spectacle.
Also, taking far too much credit for what you've done seems totally in character for a 13 year old, even for plenty of adults. Nothing unusually sinister about that.
@Obama's boyfriend
What's sad is that the qualifier "Islamic" has to be included.
Trent says January 13, 2017 at 11:43 pm:
Exactly.
When I was about that age in the 1950s, with no prior approval from anybody I built a "Tesla coil", or what might sorta kinda pass for one. I wound the contraption on oatmeal boxes with #18 bell wire, and made electrical connections with alligator clips. I attached it to an old Model T spark coil multivibrator and some dry cell batteries.
It could make electrical arcs long enough to notice. It sounded like a small chain saw cutting through nails, and would wipe out all AM radio reception within in a large radius. If you were foolish enough to touch the wrong part it would throw you backward with your own muscles.
It was hardly a paragon of safe design for naive users, and definitely not FCC approved. I was probably in felony violation of 47 U.S.C. § 151 et seq. every time I turned it on.
I took it to school. Was I expelled? Did some idiot teacher call the cops? Nope.
My teachers thought it was cool and wanted me to demonstrate it for all the kids in science classes. They encouraged me to "study more science and engineering". So I did.
If a kid did that today, he'd be in jail, or maybe federal prison. That's a national disgrace.