My Attorney's Response Letter

Last November I wrote a post about the Alaska International Film Festival.  Last week I received a letter from their attorney saying I had libeled them.  This is my attorney's letter in response. 

March 19, 2010

Mr. Robert Jassoy
Law Offices of Robert K. Jassoy
110 W. “A” Street, Suite 950
San Diego, CA 92101

Re:    Your Client:    Alaska International Film Festival
My Client:    whatdoino-steve.blogspot.com

Dear Mr. Jassoy,

Your March 10, 2010, letter to “Mr. John Doe aka Steve, whatdoino@alaska.net” threatening a suit for libel and other tort claims has been forwarded to me for a response. Because your demands are without legal or factual basis, my client does not intend to remove his blog post as you have demanded. Whether or not the activities of your client are of more than passing interest to him, my client does have strong feelings about folks who try to use bullying or intimidation to interfere with the free flow of ideas and information concerning matters of public interest or concern. And that would be the effect, as well as the apparent purpose, of your letter.

My client chooses, as do many bloggers, to conduct his on-line activities at this site using the anonymity of the name he has chosen. However, he has nothing to hide. His name is Steven Aufrecht. He is Professor Emeritus of Public Administration at University of Alaska Anchorage, respected both in his previous academic career and his current avocation as a blogger and commentator. His identity is widely known, and in any event, he provides ready access for those who wish to contact him.

If your client has nothing to hide, we would ask that you disclose the name and contact information of the owner of the Alaska International Film Festival, whose legal interests you represent. My client does not know whether, as you assert in your letter, “awards-based film and screenplay competitions” and “virtual film festivals” are “viable and important avenues for independent filmmakers seeking recognition for their works.” However, he doesn’t feel the need to question your opinion about this matter, or your right to express that opinion. We don’t doubt that

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there are legitimate contrasting points of view concerning your client’s activities, and my client would be happy to continue an open, direct and civilized conversation about some of these issues.

You do not explain in your letter what, if any, specific facts in my client’s blogpost you consider false and defamatory. You don’t seem to dispute that the “film festival” is not a “festival” in any traditional or commonly-accepted sense of that term, which would usually connote some on- site event at an announced time and place, and would usually involve the screening of films submitted. (Perhaps it is your position that what is or is not a “festival” is a matter of opinion.) Nor do you dispute that your client has chosen to appropriate a name for itself that is as close as one might get to the name of the actual established and prestigious Alaska film festival, the Anchorage International Film Festival. Nor do you dispute that your client attempted to make the public think that it has a place of business in, or other substantial contact with, Alaska, e.g., by advertising that it has a suite of offices at a “place” in Anchorage that turns out to be only a small mailbox. Nor do you dispute that other commentators have questioned whether factors such as these should raise flags of caution among members of the public interested in events calling themselves film festivals, and have questioned whether under these circumstances the label “scam” might be appropriate to use in expressing their opinion about your client’s “festival” – or that my client fairly quoted the source of such earlier opinion, and attributed it so that readers could go to that source for more information and judge it for themselves. Nor do you dispute that your client falsely represented to the public that its Alaska “film festival” is more established than it is, and has traded off the existing AIFF, by talking about the awards that it gives out “each year” when in fact it has apparently never given out awards before at all, and, indeed, apparently has not even existed before this year.

The only thing you specifically identify in your letter as being objectionable is that my client raised a question about whether your client’s “film festival” might be characterized as a “scam.” I’m sure you understand that the law allows great latitude in how one chooses to characterize, or express an opinion about anything at all, including a commercial enterprise soliciting money from filmmakers around the world under circumstances such as this. For the sake of argument, I will grant you that reasonable people could differ in their opinions about whether to characterize your client’s activities as a scam — but that’s the nature of opinions, isn’t it?

If my client had called your client’s activities a scam, it would be fully protected by the First Amendment and common law. A fortiori, his raising the question about how your client’s activities are appropriately characterized under these circumstances, or noting that such questions have been raised by others, is also fully protected. The fact that, as you recognize, film festivals and competitions are important to independent filmmakers (and to the larger public, we believe) makes it all the more important that discussion and debate on the nature and quality of such events be uninhibited, wide-open and robust.
I was pleased to see in your firm’s on-line advertising that one of your specialties is “anti- SLAPP” litigation. This means that I don’t need to explain to you about laws like the one your state found necessary to enact specifically to counter what it found to be the “disturbing” use of litigation to chill the valid exercise of free speech and other First Amendment rights. It also means that you

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should easily grasp why any suit like the one you have threatened in your letter to Dr. Aufrecht would be thrown out, and fees assessed against your client, if a motion were filed pursuant to an applicable SLAPP statute.

I can appreciate that you would consider the matter “resolved” if you could succeed in getting those who raise questions about your client’s business, or who might portray its activities in less than flattering terms, to submit to the censorship of your threats and remove these discussions from the public arena. Fortunately, the law does not give you a right to require this.

I have represented news media and others engaged in exercising their First Amendment rights for over three decades, and have taught a university course dealing with these subjects for almost as long. I am fairly confident in the advice I am giving my client. If you wish to point out legal authorities and facts indicating I am wrong, however, I would be happy to consider them and discuss this further with Dr. Aufrecht. And, as noted above, if your client is willing to identify himself or herself, and t openly exchange information and views about the nature and activities of this business the public at large, and independent filmmakers in particular, are being asked to support, my client looks forward to continuing that conversation.

Sincerely,


D. John McKay
cc:    Dr. Steven Aufrecht (via e-mail)