Apr 27, 2011

Case Law (Pt 2): Philip R. Klein

Here are a few more articles concerning In re John Does 1 and 2. Since Philip still continues to refer to the decision as Klein v. Google, perhaps he’s still angry that the Texas Supreme Court used his 202 petition as an example of a frivolous lawsuit.

Philip believes he deserves special treatment – from his latest editorial:
The rules are different for us. You have to know this.
In truth, the rules are the same for Philip R. Klein as Operation Kleinwatch and the Sam The Eagle Political Review.

After Philip commented on the “fair and balanced” nature of the Southeast Texas Record’s coverage of this decision, the Record followed with this editorial on Sunday:

The Southeast Texas Record editorial 

Philip Klein gets a First Amendment lesson about equal protection
4/24/2011 10:00 PM

You've got to wonder about Google. You'd think the American company that created the world's most popular internet search engine would be a staunch advocate for freedom, a resolute opponent of tyranny.

But you might be wrong. With disturbing frequency, Google is lining up on the wrong side of the struggle for individual rights.

The Communist government in China wanted Google to censor its search results to prevent Chinese citizens from gaining access to information it deemed too provocative. Were the Google moguls outraged? Did they adamantly refuse? No, they meekly acquiesced.

Local political commentator Philip Klein, who's developed a reputation for making outlandish posts on his Southeast Texas Political Review blogs, found himself the butt of uncomplimentary, anonymous comments on other blogs. Klein wanted Google to supply the names of the bloggers posting anonymously at Operation Kleinwatch and Sam the Eagle so he could sue them for defamation.

Were the Google goliaths aghast at this brazen assault on the time-honored American practice of anonymous publication? No, they readily agreed to cooperate with Klein.

This is the same Philip Klein who invoked his First Amendment right to free speech to defend himself against a defamation suit filed by a public official who took offense at one of his posts.

"Comments regarding elected officials, as well as public officials and events surrounding them, is firmly protected by the First Amendment of the United States Constitution," Klein declared at the time. "Clearly, sources that report misconduct and events are further protected."

Apparently the First Amendment right that protects Klein when he criticizes other individuals does not protect individuals who criticize him.

Because Google was agreeable, Jefferson County District Judge Donald Floyd granted Klein's motion to compel discovery of the names of the anonymous bloggers. Just recently, however, the Supreme Court of Texas overruled Floyd, affirming the federal law that prohibits disclosure of subscriber identity without consent.

Let that be a lesson to the likes of Google and Klein who think principle is a journey.

Southeast Texas Record news story

Texas SC Stops Google’s release of blogger IDs to Klein
4/19/2011 11:52 AM By Steve Korris


AUSTIN - Google Inc. can't give Beaumont blogger Philip Klein the names of critics who call themselves Operation Kleinwatch and Sam the Eagle, the Supreme Court of Texas ruled on April 15.

All nine Justices agreed that Jefferson County District Judge Donald Floyd abused his discretion when he granted a motion to compel discovery of the names. Klein writes a political blog called Southeast Texas Political Review.

His opponents write the anonymous blogs Operation Kleinwatch and Sam the Eagle. Klein has been involved in litigation with Google to discover the identities of the anti-Klein bloggers so he could sue them for defamation.

Floyd granted Klein's motion to compel discovery because Google agreed to provide names to Klein's businesses, PRK Enterprises and Klein Investments, but the agreement didn't impress the Justices.

"It is true that except where specifically prohibited, the procedures and limitations set forth in the rules pertaining to discovery may be modified in any suit by agreement of the parties," they wrote in an unsigned opinion.

"But PRK and Google were not the only parties to the proceeding," they wrote.

They wrote that Rule 202 requires service of a petition on all with adverse interests.

"PRK and Google could not modify the procedures prescribed by Rule 202 by an agreement that did not include relators," they wrote.

They wrote that the rule requires a court to order a deposition only if it might prevent a failure or delay of justice or if the likely benefit outweighs the burden.

"The trial court did not make either of these findings," they wrote. "Nor can the required findings be implied in support of the trial court's order compelling discovery."

They wrote that PRK made no effort to present a basis for an exception to federal law that prohibits disclosure of subscriber identity without consent.

"Not only are the allegations in its petition and motion to compel sketchy, they mostly concern possible causes of action by Klein, who is not a party to the proceeding," they wrote.

"The rule does not permit the findings to be implied from support in the record," they wrote.

"The intrusion into otherwise private matters authorized by Rule 202 outside a lawsuit is not to be taken lightly," they wrote.

PRK petitioned for discovery against Google and two John Does, in anticipation of suing for copyright violations, defamation, and invasion of privacy.

Google agreed to respond to a subpoena seeking identities of all persons responsible for Sam the Eagle and Operation Kleinwatch, including literary and financial contributors.

Google agreed to provide email and account addresses as well as entry logs and posting logs for a year.

Floyd signed the order in January 2010, and Ninth District appeals judges denied a writ of mandamus last April.

Jeffrey Dorrell represented those behind Sam the Eagle and Operation Kleinwatch.

John Morgan represented Klein's businesses.

The SLAPP’’ED IN TEXAS Blog

Update in a SLAPP caseAPRIL 19, 2011 by Alicia Wagner Calzada

One of the cases we have been following is the Beaumont case of In Re John Does 1 and 2, a SLAPP suit aimed at revealing the identities of anonymous bloggers “Operation Kleinwatch” and “Sam the Eagle Weblog” who blog about another blogger, Philip Klein. Klein’s company (but not Klein himself) obtained a discovery order which subpoenaed from Google the identities of the anonymous bloggers. The John Does moved to squash the subpoena and the court denied the motion, ordering the identities to be revealed.

On Friday, the Texas Supreme Court granted mandamus relief to the anonymous bloggers, ruling the the trial court had abused its discretion.

Friday’s opinion is interesting in that it calls the allegations in the lawsuit “sketchy,” and notes that the plaintiff in the lawsuit was a company, not Philip Klein, yet the allegations in the lawsuit “mostly concern possible causes of action by Klein, who is not a party to the proceeding.” This is a classic description of a lawsuit with no merit, that is being used as a tool to harass speech.

If the Texas Citizen Participation Act had been in place, this case could probably have been handled through a motion to dismiss and might not have had to seek the extraordinary relief of a writ of mandamus ruling from the Texas Supreme Court.

Other links

See these articles (requires subscription):

8 comments :

Anonymous said...

He's hopeless. Phil doesn't know whether to pontificate as a legal genius or smirk and giggle in the style of a Hollywood gossip columnist.

Anonymous said...

We were discussing this editorial while eating lunch at the Beaumont Country Club today.

Anonymous said...

Gus, my utmost respect and admiration to your attorney in this landmark decision.

Anonymous said...

This guy is a scumbag, a total piece of shit.

Anonymous said...

LOL, case law and Klein is the loser.

Anonymous said...

The Supremes deliver Klein's head on a platter..now Osama bin Laden is shot in the head and dumped in at sea...gee, is it Christmas already?

Anonymous said...

Philip bashing W.L. Pate, do I sense a bit of jealousy on Philip's part. W.L. had a successful radio program at a time when Philip's boring program went flat as a re-thread tire.

Anonymous said...

The IDIOT blasted Judge Walker today falsely claiming marital infidelity on Judge Walkers' part. 75 year old men on oxygen generally don't cause their marriage to fail by cheating. What will cause a marriage to break up is when a wife sees her husbands health failing and attempts to get him to change his will and void their prenumptual agreement and he refuses. Klein is a lying sack of @$#*.