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BROWN WHITE & OSBORN LLP

KENNETH P. WHITE (Bar
No. 173993)
333 South Hope Street, 40th Floor
Los Angeles, California 90071-1406
Telephone: 213. 613.0500
Facsimile: 213.613.0550
kwhite@brownwhitelaw.com
Attorneys for Defendant
JOHN DOE

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

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JAMES WOODS,
Plaintiff,

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v.

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Case No. BC589746

JOHN DOE, ET AL.,

Defendants.

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Assigned to: Hon. Mel Recana

DEFENDANT JOHN DOES

OPPOSITION TO PLAINTIFFS EX
PARTE APPLICATION TO
CONDUCT EARLY DISCOVERY;
DECLARATION OF KENNETH P.
WHITE; EXHIBITS
Date:
Time:
Dept.:

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August 27, 2015

8:30 a.m.
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DEFENDANT JOHN DOES OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION TO CONDUCT EARLY DISCOVERY
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MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION

Plaintiff James Woods (Plaintiff) is abusing the court system to lash out at a

constitutionally protected political insult the very sort of insult he routinely uses himself.

Now, by this ex parte application, he seeks further to abuse this Courts processes to identify

an anonymous critic. The Court should deny it, or at a minimum set a briefing schedule so

that the important First Amendment issues presented can be briefed properly and resolved on

a full record, and so that Defendant John Doe (Mr. Doe) may file his anti-SLAPP motion.

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Plaintiff, an internationally known actor, is active on Twitter, a social media platform.

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There he is known for engaging in rough-and-tumble political debate. Plaintiff routinely

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employs insults like clown and scum, and even accuses others of drug use as a rhetorical

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trope:

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But Plaintiff apparently believes that while he can say that sort of thing to others,

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others cannot say it to him. He has sued Mr. Doe for a derisive tweet referring to him as
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cocaine addict James Woods still sniffing and spouting in the course of political back-and-

forth. Complaint at 9. He also complains, at length, that Mr. Doe has called him things

like a clown and scum. Naturally, Plaintiff has himself called others clown or scum

on Twitter.

Plaintiff now seeks early discovery allowing him to subpoena Twitter to obtain Mr.

Does identity. He tried once before; Twitter objected because the subpoena was

procedurally defective and did not give Mr. Doe notice. This Court should reject Plaintiffs

request, or at a minimum order a briefing schedule to address it:

x Plaintiff cannot prevail on his claims. It is axiomatic that only provably false

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statements of fact can be defamatory. Mere rhetorical hyperbole not meant to be

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taken literally cannot be, and is absolutely protected by the First Amendment. In

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the context of Twitter specifically including Plaintiffs own penchant for

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hyperbole there Mr. Does statement cannot be taken as a factual assertion that

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Plaintiff is a cocaine addict. Rather, Mr. Does tweet was part of a familiar

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meme, or in-joke, referring to Plaintiff that way as an insult.

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x Because Plaintiff cannot prove defamation, he is not entitled to pierce Mr. Does

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anonymity. The First Amendment protects the right to speak anonymously, and

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prevents Plaintiff from using legal process to unmask an anonymous speaker when

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he has no case.
x Plaintiff will be filing an anti-SLAPP motion on September 1, 2015, which will

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stay discovery and render the issue moot.

x Mr. Doe, and Twitter, should have a full and fair opportunity to address the First

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Amendment issues raised by Plaintiffs request.

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Therefore, this Court should deny the ex parte application, or else set a briefing

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schedule so that all interested parties may be heard on reasonable notice.

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DEFENDANT JOHN DOES OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION TO CONDUCT EARLY DISCOVERY
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II.

STATEMENT OF FACTS

A.

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Twitter Is A Social Media Platform Known For Hyperbole

Twitter is a social media platform that is, a place for people to interact

electronically. One court described its function as follows:

Twitter is a real-time information network that connects users to the latest

information about what you find interesting. At the heart of Twitter are small bursts

of information called Tweets. Each Tweet is 140 characters in length.... Twitter users

may choose to follow other users. If user No. 1 decides to follow user No. 2,

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Twitter messages (Tweets) posted by user No. 2 will show up on the home page of

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user No. 1 where they can be read. (United States v. Cassidy, 814 F.Supp.2d 574, 576 (D.

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Md. 2011).)

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Plaintiff is a Twitter user under the name @realJamesWoods, and Mr. Doe is a

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Twitter user under the name @AbeListed.

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Twitter is known for hyperbole, overheated rhetoric, and ad hominem attacks. Its

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notorious for spreading misinformation.1 Its known for being relentlessly insulting: the

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Twitter universe is never happier than when it's being snarky, or downright nasty, to

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someone.2

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Plaintiff Participates In Twitters Rough-And-Tumble Culture of Insult

Plaintiff himself is a well-known part of Twitters culture of political hyperbole. Hes

been called Obamas biggest twitter troll3 and a prolific, highly articulate, and politically

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New Scientist, Twitter Bots Grow Up and Take Over the World, July 30, 2014, retrieved from
https://www.newscientist.com/article/mg22329804-000-twitter-bots-grow-up-and-take-onthe-world/

CNN.com, Study: Twitter Opinions Dont Match the Mainstream, March 4, 2013, retrieved from
http://www.cnn.com/2013/03/04/tech/social-media/twitter-reactions-public-opinion/.
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Daily Beast, How James Woods Became Obamas Biggest Twitter Troll, December 31, 2014,
retrieved from http://www.thedailybeast.com/articles/2014/12/31/how-james-woods-becameobama-s-biggest-twitter-troll.html.

DEFENDANT JOHN DOES OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION TO CONDUCT EARLY DISCOVERY
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incorrect conservative voice on Twitter.4 He has suggested publicly on Twitter that his

vocal conservative advocacy will cost him work in Hollywood.5 Plaintiff has stated publicly

that he expresses himself on Twitter to avoid mainstream media editorializing.6 He revels

in Twitters culture of insipid insult, retweeting (that is, repeating so that his Twitter

followers can see) vulgar and abusive insults directed at him.7

Plaintiff enjoys rhetorical excess and insult himself. He calls people clown and

scum, notwithstanding that he complains about Mr. Doe saying those things to him.

(Exhibits E, F to White Decl.) He makes jokes about eating a sandwich rather than saving

drowning political figures he doesnt like (Exhibit G), and suggests that he wouldnt mind

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killing people wearing shirts with offensive and incendiary messages. (Exhibit L.) He

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responds to insult with insult; when a pundit called him a dick, he shot back Im not sure,

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coming from him, if dick is a menu choice! Lol. (Exhibit J.) He forthrightly ridicules

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opinions he doesnt like, such as Justice Anthony Kennedys statement gays ask for equal

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dignity in the eyes of the law. (Exhibit K.) And, as is noted above, he has repeatedly used

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the fatuous youre on cocaine insult in the course of Twitter fisticuffs:

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Daily Caller, James Woods: Ill Probably Never Work In That Town Again, October 9, 2013,
retrieved from http://dailycaller.com/2013/10/09/james-woods-ill-probably-never-work-inthat-town-again/#ixzz3k38zCMXD.
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Woods, who recently appeared in White House Down and Jobs, was replying to a tweet that
questioned the wisdom of his outspoken declarations. "I don't expect to work again. I think
Barack Obama is a threat to the integrity and future of the Republic. My country first." The
Guardian, James Woods Claims Hollywood Is Against Him After Anti-Obama Tweets,
retrieved from http://www.theguardian.com/film/2013/oct/10/james-woods-tweets-barackobama.
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Twitch.com, For the Record: James Woods Explains Why Hes Giving Up on The MSM and
Sticking To Twitter, October 11, 2013, retrieved from http://twitchy.com/2013/10/11/for-therecord-james-woods-explains-why-hes-giving-up-on-the-msm-and-sticking-to-twitter/.
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Twitchy.com, Unending Stream of Mindless Bile: James Woods Retweets Liberal Followers,
August 8, 2014, retrieved from http://twitchy.com/2014/08/08/unending-stream-of-mindlessbile-james-woods-retweets-liberal-followers/.

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Perhaps because hes so consistently combative, or perhaps because hes played the

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role of drug users in his movie career, James Woods is on cocaine has become a Twitter

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in-joke or meme. There are many examples of this joke being levied against him before Mr.

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Doe made it. (Exhibits H, I, M.)

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DEFENDANT JOHN DOES OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION TO CONDUCT EARLY DISCOVERY
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C.

Plaintiffs Claims Against Mr. Doe

Plaintiff complains that Mr. Doe has used childish name-calling against him, and

has used derogatory terms such as prick, joke, ridiculous, scum, and clown-boy.

Complaint at 8. However, even Plaintiff does not seem to suggest those insults are

actionable. Rather, Plaintiff complains that Mr. Doe called him cocaine addict James

Woods still sniffing and spouting. Mr. Doe did use words to that effect. They were part of

an exchange of rhetorical hyperbole and insult consistent with Twitter culture and employing

the known cocaine meme or in-joke levied at Plaintiff. (Exhibit N to White Decl.) As is

set forth below, no rational person familiar with the context could take them to be a serious

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factual assertion that Plaintiff uses cocaine.

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Mr. Doe has informed Plaintiff that he will be filing an anti-SLAPP motion by

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September 1st; Plaintiff responded by noticing this ex parte application. (White Decl. at .)

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Previously Plaintiff attempted to subpoena Mr. Does identity from Twitter; Twitter
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DEFENDANT JOHN DOES OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION TO CONDUCT EARLY DISCOVERY
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responded with objections, pointing out that Plaintiffs subpoena was defective in multiple

respects. (Exhibits A, B to White Decl.) Twitter has indicated that, in the event this Court

permits Plaintiff to issue a new subpoena, it will object to it and potentially seek to quash it.

(Exhibit O to White Decl.).

III.

ARGUMENT

This Court should deny the ex parte application, or at a minimum set a briefing

schedule for full briefing of the request. Because Plaintiff seeks to pierce the anonymity of

an online speaker, he must make a prima facie case of defamation. He cant, because the

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expression he complains of is plainly insult and hyperbole, not a provable false statement of

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fact. Therefore, Plaintiff isnt entitled to the subpoena. Moreover, discovery will be stayed

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when Mr. Doe files his anti-SLAPP motion.

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A.

THE FIRST AMENDMENT PROTECTS MR. DOES ANONYMITY

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This Court should deny this ex parte application because Mr. Doe has a First

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Amendment right to anonymous speech. Under well-established California law, the Court

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should not allow Plaintiff to use legal process to pierce that anonymity unless he can

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demonstrate he can prevail. He cannot; his case is a vexatious slap at a critic.

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Both the California Constitution and the U.S. Constitution afford Mr. Doe a right to

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privacy and anonymity. (Digital Music News LLC v. Superior Court (2014) 226 Cal.Ap.4th

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216, 228. That right protects anonymous speech online:

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Both California courts and federal courts have recognized the value in

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extending the protections afforded anonymous speech to speech made via the

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*229 Internet. (See generally Reno v. American Civil Liberties Union (1997)

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521 U.S. 844, 870, 117 S.Ct. 2329 [138 L.Ed.2d 874, 117 S.Ct. 2329]; Krinsky

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v. Doe 6, supra, 159 Cal.App.4th 1154, 72 Cal.Rptr.3d 231.) The use of a

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pseudonymous screen name offers a safe outlet for the user to experiment with

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novel ideas, express unorthodox political views, or criticize corporate or

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individual behavior without fear of intimidation or reprisal. In addition, by

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DEFENDANT JOHN DOES OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION TO CONDUCT EARLY DISCOVERY
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concealing speakers identities, the online forum allows individuals of any

economic, political, or social status to be heard without suppression or other

intervention by the media or more powerful figures in the field. (Krinsky v.

Doe 6, supra, 159 Cal.App.4th at p. 1162, 72 Cal.Rptr.3d 231.) The ability to

speak ones mind on the Internet without the burden of the other party

knowing all the facts about ones identity can foster open communication and

robust debate. (Doe v. 2TheMart.com Inc. (2001) 140 F.Supp.2d 1088,

1092.) (Digital Music News LLC, 226 Cal.App.4th at 228-29.)

When a litigant seeks to pierce an online speakers anonymity, California courts

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require more than a request. They require a showing of compelling need that outweighs the

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the privacy right involved. Digital Music News LLC, 226 Cal.App.4th at 229-230. In the

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context of defamation actions against anonymous internet speakers, California courts require

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the plaintiff to make a prima facie case of defamation to be entitled to a subpoena to an

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Internet Service Provider. (Krinsky, 159 Cal.App.4th at 245-46.) If the Plaintiff cant do that

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for instance, because the complained-of language is internet hyperbole, not a statement of

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fact California Courts quash such subpoenas. (Id. at 247-48.)

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Plaintiff cannot make a prima facie case because as is discussed below the

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complained-of language is obvious rhetorical hyperbole, not a provable statement of fact.

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Therefore the Court should not allow them to issue a subpoena.

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B.

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Mr. Does Insult Was Hyperbole, Not A Statement of Fact

Plaintiff cant make a prima facie case of defamation because he cant cite a false

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statement of fact. Only provably false statements of fact can be defamatory; insults,

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hyperbole, and loose and figurative expressions of opinion cannot be. (See, e.g., Paterno

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v. Superior Court (2008) 163 Cal.App.4th 1342, 1356.) Mr. Does cocaine addict tweet a

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clear reference to the Twitter in-joke about Plaintiff cannot be taken as a statement of fact,

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especially in the context of Twitter a context that Plaintiff helped to construct.

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DEFENDANT JOHN DOES OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION TO CONDUCT EARLY DISCOVERY
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Case after case has recognized that speech on internet forums like Twitter is likely to

be viewed as opinion or hyperbole, not fact. Thats particularly true when the statements are

couched in bombastic language:

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In Krinsky, the court found that posts on a Yahoo! Finance board that accused the

plaintiff of misconduct using terms like mega scum bag and cockroach were

not statements of fact. A reasonable reader of this diatribe would not

comprehend the harsh language and belligerent tone as anything more than an

irrational, vituperative expression of contempt for the three officers of SFBC and

their supporters. (159 Cal.App.4th 1175-76.) (noting that debate or criticism often

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becomes heated or caustic on the internet).

x In Summit Bank v. Rogers (2012) 206 Cal.App.4th 669 (2012), the court reviewed

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numerous authorities for the proposition that online blogs and message boards are

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places where readers expect to see strongly worded opinions rather than objective

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facts. (Id. at 696-97.) The court explained that in determining whether a

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statement is taken as fact or bluster, the court must consider how someone familiar

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with the context would view them: Rogerss statements must be viewed from the

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perspective of the average reader of an Internet site such as Craigslists Rants and

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Raves, not the Bank or a banking expert who might view them as conveying

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some special meaning. (Id.)

x In Chaker v. Mateo (2012) 209 Cal.App.4th 1138, the court found that an ex-

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lovers rant on a review site called Ripoff Report was non-actionable opinion.

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Because the defendants statements were made on Internet Web sites which

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plainly invited the sort of exaggerated and insulting criticisms of businesses and

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individuals which occurred here, the defendants statements that plaintiff picks

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up street walkers and homeless drug addicts and is a dead beat dad would be

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interpreted by the average Internet reader as . . . insulting name calling . . . . (Id.

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at 1149.)

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A statement is not automatically one of opinion because it is made on a forum like

Twitter. But here, there were no factors that would suggest that the @abelisted tweet was

meant to be a statement of fact instead of mere Twitter bluster. (Bently Reserve L.P. v.

Papaliolios (2013) 218 Cal.App.4th 418, 433-34 [reviewing factors that might make internet

speech factual].) It was not labeled as a fact. The @abelisted account did not suggest any

factual basis for the insult, nor any way that @abelisted could know it. There were no

indicia that @abelisted was some sort of reliable reporter on such issues. It was not

surrounded by factual statements. It wasnt made by a known person; rather, it was said

anonymously, which California courts recognize make it even less likely to be viewed as a

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statement of fact by readers. (Krinsky, 159 Cal.App.4th at 1162; Summit Bank, 206

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Cal.App.4th at 697.) It wasnt professionally uttered, but was part of a series of tweets with

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questionable diction, grammar, and construction. In short, every possibly factor pointed to

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it being a mere insult, not a statement of fact.

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Plaintiff, through his conduct and Complaint, provides the best arguments for Mr.

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Does insult being non-factual. Plaintiff places the tweet squarely in the context of a

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campaign of childish name-calling, (Complaint at 8) which is exactly the sort of

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expression thats protected opinion rather than actionable fact. Moreover, by suggesting

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people he disagrees with are smoking crack (Exhibits C, D), that hed rather eat a sandwich

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than save two liberal politicians from drowning (Exhibit G) , and that hed like to kill a man

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for wearing a hideously offensive 9/11 shirt (Exhibit L), Plaintiff has demonstrated that he

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knows perfectly well that this sort of rhetoric is not to be taken at face value. (These are

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but a few examples; there are many, many more.) He has demonstrated that this lawsuit is

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petty and malicious.

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Plaintiff cant show a false statement of provable fact, so he cant make a prima facie

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case of defamation. Nor can he make a prima facie case for his second cause of action of

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False Light Invasion of Privacy. First, that claim is defective when combined with a

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defamation claim based on the same facts. When an action for libel is alleged, a false-light

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claim based on the same facts (as in this case) is superfluous and should be dismissed.
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(McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961, 965.)

Moreover, if a defamation claim cannot succeed, nor can a false light claim on the same

facts. (Tamkin v. CBS Broadcasting (2011) 193 Cal.App.4th 133, 148.)

Plaintiff cant make a prima facie case on either claim, and isnt entitled to pierce Mr.

Does anonymity.

C.

Mr. Does Anti-SLAPP Motion Will Stay Any Subpoena

Mr. Doe informed Plaintiff that hed be filing an anti-SLAPP motion if this matter

could not be resolved by August 31, 2015; Plaintiffs response was to rush to court ex parte

to try to get discovery first. That gambit should fail.

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Mr. Does anti-SLAPP motion, which he will file September 1, will automatically

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stay all discovery. (Cal. Code Civ. Proc. 425.16(g).) Plaintiff may make a noticed motion

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for discovery to help him carry his burden of proof. (Id.) But if Plaintiff is looking for

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discovery to pierce Mr. Does anonymity, that motion should fail. Section 425.16(g)

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discovery may only be permitted to the extent it allows a plaintiff of carrying its burden of

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showing a likelihood of prevailing on the merits. Discovery that is not directly relevant to

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the legal defense Mr. Doe is asserting is not permitted. (Blanchard v. DIRECTV, Inc.

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(2004)123 Cal. App. 4th 903, 922, 2; Taheri Law Group v. Evans (2008) 160 Cal. App. 4th

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482, 492493.) Mr. Does identity has nothing to do with his defense that his tweet is

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patently hyperbole and insult, not a statement of fact.

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D.

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At The Least, The Court Should Permit Full Briefing

At the very least, the Court should permit a full briefing schedule to allow Mr. Doe to

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vindicate his First Amendment rights. Mr. Does counsel prepared this brief without the

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benefit of seeing the application and does not know exactly what arguments or evidence

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Plaitniff will bring to bear. The issues presented here are too important to be resolved ex

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parte.

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