Note: This is going to be long and boring if you don’t like lawyer-speak. For those of you being threatened by Bernath though, it wouldn’t hurt to educate yourself a little on what his threats actually mean.
They say that if the facts are in your favor in a lawsuit, you argue the facts. If the law is in your favor, you argue the law. Apparently the Bernathian corollary to this maxim is that when neither is in your favor, you just make shit up.
Lately he’s been contacting everyone under the sun to let them know they’ll be sued. Not only does he have the keenest of legal minds in his corner, he’s also got the expert testimony of Wittlessone and Wickre. That alone should make it must-see TV. Like a Scopes Trial of certified lunatics.
Here’s his phone call to one of our commenters that was forwarded to us:
Let me give you an example of how batshit this guy is. From his absurd restraining order petition he is allegedly shopping to Oregon judges: “He [ME, TSO] has assembled a team of assassins, he says, he has published my address along with GPS.” In a different email he talks about how I don’t have “a pot to piss in.” So let’s just review those to start. I’ve never published his address or his “GPS”. He has though, all over the place. But put that part aside as well.
If I don’t have a pot to piss in, how exactly am I paying this band of assassins? For that matter, when did I ever say I had a team of assassins? Do you know how expensive it would be to have a TEAM of assassins? The karate lessons and black kimonos for the ninjas alone would put a serious dint in the pot that I don’t have to piss in, no?
Saw this on Ace this weekend, which made me think of my nascent team of assassins:
Anyway, dude is unable to tell the truth, so his lying about facts isn’t a surprise. As the Supreme Court of Oregon said about him:
The record contains overwhelming evidence that applicant does not possess that requisite good moral character and fitness to be a practicing attorney in Oregon. Applicant’s brief to this court does little to resolve the doubts raised by the Board about his character. We conclude that applicant has failed to prove by clear and convincing evidence that he is a person of good moral character and fit to practice law in Oregon.
It should come as no surprise to anyone then that he is also lying about case law. He cites to two cases, and I wanted to share them, because he has both the facts of the cases wrong and the actual holdings. (Again, as the Supreme Court noted of Bernath: “He wrote a letter to Varner after entry of the award against him wherein he misrepresented the law and threatened to sue her if she did not agree to settle with him for $500.”) This is what he is doing now, misrepresenting the law in order to try to get us not to sue him for defamation, copyright infringement and being a general pain in the ass. (That last one might not be an actual Tort, but then again, neither is “Menacing.”)
From one of his more recent emails: “Do look up Wanted Posters, $105,000,000 judgment in Oregon.” This is his go-to on all things “Wanted [Dead or Alive] Poster”. I’m sure it will shock you to know that he has the facts and law wrong on this one as well. The case he is trying (unsuccessfully) to reference is Planned Parenthood v. ACLA. (ACLA, not ACLU; it is an anti-abortion group.)
A bit of background on this one so you can have the context… This ACLA group put up “Wanted” posters with the names and addresses of abortion providers. When some of the providers were killed, ACLA would update their wanted posters by putting an X across the persons face. In other words, it was an actual hit list basically. When some dude killed one of the Doctors, he went on the lam to Canada, and was actually contacting the website administrator and getting help from him. So, it wasn’t some sort of passive thing, dude was actually helping a murderer. Here’s the relevant part of the case:
ACLA was aware that a “wanted”-type poster would likely be interpreted as a serious threat of death or bodily harm by a doctor in the reproductive health services community who was identified on one, given the previous pattern of “WANTED” posters identifying a specific physician followed by that physician’s murder. The same is true of the posting about these physicians on that part of the “Nuremberg Files” where lines were drawn through the names of doctors who provided abortion services and who had been killed or wounded. We are independently satisfied that to this limited extent, ACLA’s conduct amounted to a true threat and is not protected speech.
As you can tell from reading the opinion itself, it wasn’t just a “Wanted poster”, it was their active cheering for Murder. But let’s look at what Bernath purports is a “Wanted: Dead or Alive Poster” that was posted. Does it call for Murder? Does it call for Assault? Do we have a list of other Stolen Valor guys we’ve had assassinated? Of course not. The Wanted poster says that:
“Daniel Alan Bernath” is “Wanted by Vets” as a “Valor Thief.” And if he is found, “interface with him and make his life hell until he returns the bogus uniforms, medals and stolen valor [sic] to” TAH or a VSO. It contains the dire warning that “Bernath is a liar and extremely annoying.”
Bear in mind that this public mockery is exactly what the Supreme Court itself called for in Alvarez v. United States.:
The Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counterspeech, of refutation, can overcome the lie. Respondent lied at a public meeting. Even before the FBI began investigating him for his false statements “Alvarez was perceived as a phony,” … Once the lie was made public, he was ridiculed online… and a fellow board member called for his resignation… There is good reason to believe that a similar fate would befall other false claimants…. Indeed, the outrage and contempt expressed for respondent’s lies can serve to reawaken and reinforce the public’s respect for the Medal, its recipients, and its high purpose.
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 uninformed, the enlightened; to the straight-out lie, the simple truth. See Whitney v. California, (“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence”). The theory of our Constitution is “that the best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting).
(I edited out some of the internal stuff that wouldn’t make sense, but you can go read the entire decision here. Start on page 14.)
So, unlike in PP v. ACLA, we aren’t trying to get people to murder someone, and then cheering when they do, we are doing EXACTLY what the Supreme Court said should happen. The “105 million Wanted Poster case” really then has nothing to do with us, especially since they decided the case based on the “Freedom of Access to Clinics Entrances Act” and no one here has tried to get Bernath NOT to have an abortion and/or NOT to provide abortions. It’s the idiotic twaddle and misapplication of law that Bernath has already been censured for by the Oregon Supreme Court.
Bernath also likes to cite to The Dirty case. He tries to use that to make Jonn and I liable for various comments that have been left. Mind you that none of the comments themselves are actionable, but he tries to make it sound like they are. For instance, again from his RO Application against me:
the other people, such as [MCPO] admit that they are causing me fear and are doing so until Seavey tells them to stop (if ever.)
Um, yeah no on several grounds. No one is trying to cause him fear, and I do not have some sort of Svengali-mental hold on commenters. I’m lucky if I can get Jonn to agree with me on things, much less telling commenters how to behave. I have a better chance of ordering my Boston Terrier to stop farting on me than I do telling commenters what they can’t and can’t say. Nor will I. Nor should I. Because the Communications Decency Act codified at 47 U.S.C. § 230. Section 230(c)(1) says:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
In Captain Dummy Talk, that means Jonn and I aren’t responsible for what you guys say. But Bernath thinks he can get around that via The Dirty Case.
[Note, take even for instance what Bernath calls a threat in his voice mail “I wish I had more time to dedicate to crubstomping these douchetools.” That’s not a threat. That’s allowable rhetorical hyperbole not directed at anyone. No court in the US has ever held something similar to that constituting a threat. There is no imminent harm implied to any specific party, nor could any rational person think that there was.]
Back to The Dirty… The background on that one you might be familiar with. A website called “The Dirty” asks users to send in information that would be salacious in nature. One person sent in something claiming that a Bengals Cheerleader, Sarah Jones, had “slept with every other Bengal Football player” and that one of her paramours subsequently “tested positive for Chlamydia Infection and Gonorrhea” and thus she likely had those diseases too. These weren’t just comments on an existing post, The Dirty actually took the email, posted it, and added commentary. In other words, they took this anonymous (and defamatory) comment and made it their own.
Even the court’s opinion makes this clear:
[T]he CDA provides only a sort of qualified immunity that can be lost by the site’s intentionally developing and/or materially contributing to the illegal or objectionable material.
Let’s just assume for these purposes that the court is right on that, which is not a given, since it was only the opinion of one Federal judge, in Eastern Kentucky (where Bernath does not live) and the case is on appeal. (Worth noting is that almost 30 entities have filed amicus briefs saying the judge got it wrong, and none saying he got it right.) So again, assuming that is right, it is worth noting that what brought all of this up was defamatory statements and the role that the blog played in forwarding them. Again, per that opinion of one judge:
The Evidence in this Case Demonstrates That [The Dirty blogger] Played a Significant Role in Adopting and Developing Actionable Content.
The problem here for Bernath is he still can’t point out anything defamatory, which is why he is going to his half-assed claim for Intentional Infliction of Emotional Distress. Here’s an example of the bullshit he is sending me almost daily, this allegedly from “The Family of Dan Bernath” not to be confused with the other 3 people who send me emails from the same account, “Secret Satire Squirrel”, “Satire Defense” and “Daniel Bernath”:
Dan Bernath is a 100% Vietnam War (at Vietnam, not NJ) veteran.
Since your harassment, he is afraid to leave house and he now carries several large caliber weapons. He cannot sleep at night because of the fear that you or your friends will carry though on their threat to come here and deal with him.
He is now suffering from a stress disorder that manifests with painful rash like symptoms on his stomach, side and back. You have intentionally caused him emotional distress. It is time that you leave him and his family alone.
This argument suffers from a few irremediable deficiencies. 1) No one has threatened him. 2) He has sent unsolicited emails over 100 times, which doesn’t show someone who is afraid, or in fear, but rather someone who wants to stir shit up. 3) No one is trying to “cause him emotional distress” or hives or any other such thing, we’re trying to get him to give up his lie about being a CPO. (Failing apparently, if based only on the voicemail.)
The only case he should be looking at is the one that proves his claim is specious, Snyder v. Phelps. Now, many of us thought that case was decided wrongly, not least of which was me, who was there in the Supreme Court to listen to oral arguments. But, it was 8-1 against Mr. Snyder, not exactly sliding through by the skin of its teeth. That case dealt with the Westboro morons picketing the funeral of Mathew Snyder, a fallen marine. Mr. Snyder sued based on the same tort that Bernath is alleging, “Intentional Infliction of Emotional Distress.”
As the court cited the issue in Snyder:
To succeed on a claim for intentional infliction of emotional distress in Maryland [or Oregon for that matter], a plaintiff must demonstrate that the defendant intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress.
Mr. Bernath claims that our mocking him for lying about his CPO status, and for photoshopping his head onto a guy’s uniform who earned medals that Bernath did not is “extreme and outrageous conduct.” Frankly that argument is asinine on the face of it, but even were it to be such in the fantasy world which claims Bernath as a citizen, the next line of the opinion is what will doom Bernath:
Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case.
Further,
Speech deals with matters of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” Connick, supra, at 146, or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public…” The arguably “inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.” Rankin v. McPherson, 483 U. S. 378, 387 (1987).
Clearly Stolen Valor is an issue of public concern. In fact, as I noted earlier in Alvarez, the Supreme Court has already said it *IS* a matter of public concern. So even if there were people out there that thought the mocking of Bernath was “extreme or outrageous” (as indeed the jury in Snyder found) then it would still fail because of the First Amendment.
Now, either Bernath doesn’t know the Snyder decision, in which case he ought not be a lawyer, or he doesn’t care. My guess is the latter. Bernath flat out knows he is guilty of defamatory statements and copyright infringement. In fact, he admitted as much to me in an email (from made up identity “SSS”):
If you sue for defamation then we shall explore in great detail what “fame” you have and how a person who drives veterans to suicide can lose “fame.” *[NOTE, see below for more on this.]
Besides, Mr. Bernath never said anything about you. SSS did. You acknowledge me when you called me “Satire Defense.” […]
Another point. Mr. Bernath has a $100,000 judgment against him from workers comp in Oregon and another from one of his lawyers. Plus Yelp has a $20k judgment against him.
Mr. Bernath lives on SSA and VA money and has no assets. The way the law is set up, of course, the government’s work comp judgment lien is well ahead of any judgment you may get. (You won’t get any).
He seems to set up a few ludicrous defenses. He maintains that he’s not saying anything, that it was some unknown entity who hacked into his email, Facebook and website. That’s absurd on the face of it. All we’d have to do is show that it was his Facebook (it comments on his daughters pages occasionally), that it was his email (it is the one listed for his place of business), and that it was his website (which “who is” says is registered to him)…. if he *had* been hacked, that would be an affirmative defense, but he would have to prove that. In other words, we don’t have to prove that he wasn’t hacked, he would have to prove that he was. Of course he can’t do that.
His second line of defense is that it was protected satire. For several reasons this would fail as well, not least of which is that on 20 separate Facebook accounts (including that of the Department of Veterans Affairs) he wrote:
Daniel A Bernath Here’s the court case where Mark C. Seavey was convicted of being a sexual predator. [link to his dopey website]
That is a statement of fact, not a satire.
In Indiana, a communication constitutes defamation per se if it imputes: criminal conduct; a loathsome disease; misconduct in a person’s profession or occupation; or sexual misconduct.
[* NOTE: above he wanted to explore how I could be damaged, since I am “a person who drives veterans to suicide.” Alas for Bernath, this isn’t a defense that will work in Indiana, as “damages” aren’t necessary under Defamation per se. In fact, I could be the most loathsome guy since Alex Rodriguez, and the court still won’t look at that.]
Simply stating somewhere else that something is “satire” doesn’t work as a legal panacea, or every person in the world would put up a Facebook post that says “everything I ever wrote or write in the future is satire.” Clearly such a farcical attempt at defeating the law would not succeed, nor would Bernath’s claim here. He might very well append his statements on his website saying that it is satire, but those Facebook comments don’t have any of the required elements of parody or satire which could excuse them. And he knows it.
So, anytime I decide to sue on Defamation or Copyright Infringement (he stole the TAH website in toto) then he plans to cross complain with a ton of BS. And not just me, but about ½ of you reading this. In the meantime he has resorted to contacting Secret Service to get me blocked from my occasional forays to the White House, and has been contacting military bases to let the commanders know that you guys are “violating the Posse Comitatus Act”.
So, he’s got nothing in terms of legal basis, but he’s got Wittgenfeld in his corner. And so there’s that….
For any who might be curious about The Dirty case, MSNBC did a 6 part story on Ms Jones. I’m going to boldly predict she gets two things when her lawsuit is decided on appeal. Jack and Shit.
