Defending a Savage “Slapp” Suit


Now, sue me you son of a bitch.

Defending one of his "SLAPP" suits would be shooting fish in a barrel. It would be worth the aggravation, just to humiliate his sorry ass in front of a jury – and the public.

With 75 jury trials under my belt, I could handle my own defense absolutely free. And I will guarantee you, I could make the litigation very expensive – for him. And whip his ass to boot.

Of course, you would almost certainly have a solid argument to dismiss for failure to state a claim. But I wouldn’t raise it. That’s what they want. From Savage’s point of view, this is cheap harassment. How much time do they have in it? Draft a complaint and summons, pay somebody to serve it, then file a memorandum to oppose the motion to dismiss – which you can figure you’re going to lose. We’re talking 40 hours max. And of course, the Defendants have the time and expense of responding to Savage’s nonsense, which is the whole idea.

What they don’t count on is an actual trial on the merits. In fact, such a trial would be their worst nightmare. Which is exactly why I would give them one.

Of course, I’d deny everything. Then I would file an "affirmative defense" to the libel charge. It seems that truth is a defense to libel, and everything I said is one hundred percent true. Everything.

Now clearly, “Michael Savage Sucks” is not meant to be taken literally. It’s the same thing as saying “Michael Savage is an asshole” – which he clearly is. But not literally. While he certainly has an asshole, he isn’t one in any literal sense, and statements of hyperbole aren’t libel. So, your real defense is that “Michael Savage sucks” is a statement of hyperbole, obviously not intended to be taken literally.

On the other hand, you just never know how a judge is going to rule on these things. So you will need to be prepared to prove that it is the literal truth. You will need to be prepared to prove that Michael Savage really does suck – penises – just in case.

Damn. I guess we’re forced to delve into his sex life during discovery.

In fact, you might go ahead and put right in your answer something like "upon information and belief, Michael Savage is a practicing homosexual, who regularly engages in fellatio with other men." Can you say that? Sure you can. Just put a call out on your website to "eyewitnesses" who can "verify rumors" that Michael Savage is a homo. Don’t you worry. Someone will show up claiming to be one of his partners, and that person’s testimony will be every bit is credible as the testimony of say, Paula Jones.

And of course, his sex life is a 100 percent relevant subject of enquiry.

"How many times you been married, Mike?"

"How many female sexual partners have you had?" Here’s where it gets good. Either he’s had lots of them – meaning he’s another right-wing moral hypocrite like Bill Bennett. Or he hasn’t had very many – and you know what that means. It’s actually a beautiful little line of inquiry. "Sowing wild oats" is one of those things healthy men do – particularly when they’re young. Did he? Is that his whole problem, lady’s and gentlemen of the jury? Is all of this right wing anger just misdirected sexual frustration? That isn’t directly "relevant" but it is a "subtext" the jury can be made to recognize. In other words, even if he “wins” on the narrow factual issue, he loses.

You can ask if he ever has "problems" in bed with his wife – assuming he has a wife. If he doesn’t? Even better. Does he have "problems"? If he can’t "get it up" for his old lady, that is certainly some evidence of his "leanings". And you can ask her, too. Just notice her for deposition, put her under oath and ask away.

We haven’t even gotten to the meat of your defense. So far we’re just slapping him around a little bit – something I dare them to complain about having filed their frivolous "SLAPP" suit to start with.

Your real defense is so simple, it’s downright elegant. Who’s fault is it that advertisers shun Michael Savage? Is it your fault, or it his fault. "Ladies and gentlemen we will prove the only person causing Michael Savage to lose advertisers is Michael Savage".

Think about it just a minute. Does he make homophobic, misogynistic, jingoistic, racist or other extremist statements? Is he blaming YOU for complaining about it? Or does he deny making those kinds of statements? You will be able to shovel truckloads of the horseshit that comes out of his mouth for the jury’s edification – just in case he denies making homophobic, misogynistic, jingoistic, racist or other extremist statements.

So you’re defense is “no proximate cause”. He has a radio – and now a TV – microphone he bellows into on a daily basis. “You do want people to tune in and listen don’t you?” What’s he going to say? No? “In fact you want lots of listeners to attract advertisers, don’t you?” He doesn’t want advertisers? I thought that’s what he was complaining about in his suit. “Well, can’t your advertisers just tune in and hear for themselves you homophobic, misogynistic, jingoistic, racist and extremist statements?” He’ll deny making such statements. “Well then, can’t they just tune in and see that you don’t make such statements”?

See how it works? His advertisers aren’t pulling out because of what you say. They’re pulling out because of what he says.

And of course, we will be delving into what his advertisers say during discovery. You will request every communication he has ever had with his advertisers – including specifically the reasons his advertisers pulled their ads. Guess what those letters WON’T say?

“Dear Mr. Savage, we know you’re not a homophobic, misogynistic, jingoistic, racist and generally extremist asshole, but those dirty rotten liberals are saying you are. Unfortunately, even though you are a noble patriot ‘standing up for America’, we are not. We’re gutless cowards, motivated solely by the bottom line – the way you say we should be – and we couldn’t possibly risk losing sales or tarnishing our ‘corporate image’ sticking up for a noble patriot like yourself.”

No, those letters will say something like, “we have listened to your broadcasts, and frankly we don’t want to be associated with your homophobic, misogynistic, jingoistic, racist and generally extremist views”. Alright, they’ll use more diplomatic language, but that will be the gist of it. Don’t worry, the jury will “get it”.

But wait, you’re not finished. You need to prove to the jury that ordinary people are offended by Michael Savage – without any help from you. There is a really great source of such proof. His own “hate mail”, which you can demand that he produce. How much “hate mail” do you suppose he gets? Dozens of pieces a day? Hundreds? Thousands, maybe? Does he keep it? He’ll say he doesn’t, but that’s OK. Discovery is “continuing”. Just make sure he understands that he has to send you a copy of his hate mail, as he receives it. By the time the case is calendared for trial, you should have an impressive portfolio. Oh, and have a dozen or so people send him some “test mail” every so often. If you don’t get their letters, you’ll know he’s holding out. If he holds out, you can file a motion to compel – at great expense to him to defend. You will also have some really nasty misconduct to present to the jury. Jury’s hate parties who conceal evidence.

Now, there’s another little wrinkle in the rules you can take advantage of. Of course, you will file your “Motion for Summary Judgment”. That’s a motion that basically says there isn’t enough of a factual question to waste a jury’s time with. Every defendant files one, and includes some of the evidence. In order to claim there is “insufficient evidence”, the judge has to see what the evidence is. That Motion for Summary Judgment – and all of the exhibits to support it – are now part of the court file, which is part of the public record.

So you’re just going to have to file into record all of those pieces of “hate mail”, all of the correspondence from advertisers, all of the depositions – including the questions about whether he’s a “switch hitter”, deposition questions to his wife about his “performance”, an affidavit from your gay witness who says he and Michael “got it on” [trust me, you’ll find one], and in general every piece of embarrassing, humiliating and inflammatory evidence you’ve got in your briefcase.

Since it’s all public record, you now call a press conference. Now you could make the press go get their own copies of all of this shit, but I really think you should be considerate. You should have “press copies” of your motion – and all of the attached evidence – ready to distribute to them. Believe me, the press will really appreciate it.

Now, Savage’s lawyers aren’t stupid. They will try and stop your discovery. They will seek “protective orders” to keep you from asking embarrassing questions. They will say that production of all of those documents is “unduly burdensome.” Boy, I hope so. Because my argument to the judge at the hearing on the Motion to Compel – which I will absolutely file – will go something like this. “Gee, your honor, I’m just as sorry as I can be at having ‘burdened’ Mr. Savage in his ‘SLAPP’ suit. I certainly wouldn’t want him to have to incur any unnecessary expense or bother in efforts to harass me. I realize that ‘undue burden and hardship’ are things he is supposed to be able to dish out, not put up with himself.” The judge will give you everything you ask for.

At some point, his lawyers might realize their “SLAAP suit” is becoming more trouble than it’s worth. They might ponder taking a voluntary dismissal. Bullshit on that. That’s why you filed a counterclaim with your answer. I like claiming abuse of process, myself. You will also have filed a Rule 11 motion [for frivolous complaint]. You probably won’t win that one if you’ve really raked him over the coals with your own frivolous discovery. You want a claim for the jury – so they can’t quit. You may have a procedural problem claiming “Abuse of Process” before they dismiss. No problem. Have you’re complaint ready to roll, and make sure they know that the minute their dismissal hits the clerks office, you’re filing your complaint.

They don’t get to quit and go home. They’ve earned an ass whipping, and they’re going to get one. By the time you’ve got a jury in the box, Michael Savage will be feeling like Brer Bear with his hands and feet stuck to the “tar baby”. And it’s about to get a whole lot worse.

Just for kicks, you might give “Court TV” a ‘heads up’. Make sure you promise them a good show – which they will get. They will probably pass, but it’s worth an email to them, just in case they’re interested.

The jury is going to be all yours. Let me give you some numbers. Rush Limbaugh claims 17 million daily listeners. That means 263 million people DON”T listen to him everyday. Less than one person in ten is a “ditto-head”. Since Limbaugh is the “king” of right-wing hate radio, Savage’s numbers will be even lower. And don’t forget, a lot of those 17 million people listen to Rush, because they hate him, and get a strange pleasure at having him piss them off. Guess what else? You may not believe this, but there are large numbers of people who have never heard of Savage, Limbaugh or any of the rest of them.

So you just ask the jury panel, “has anyone heard of Michael Savage?” You shouldn’t have any trouble identifying the small number of ditto-heads in the jury pool, and sending on their way. And don’t forget, there will be plenty of “your” people in the jury pool too. Look for earrings on the men, and pack that jury with as many blacks and women as you can, with one exception. Watch out for bleach blonde ‘mall girls’. They’re poison – on any jury.

For black jurors, the older the better. You want black juror’s old enough to remember “colored” drinking fountains. If you’re in Chicago – where some of these cases have been filed – and you have two or three older blacks on the jury, mention the “Emmett Till case” three times so they hear it. Emmett Till was a black boy from Chicago lynched in Mississippi in 1955. Nobody else will know what you’re talking about, but every black person in Chicago who is old enough – we’re talking mid-fifties and up – will remember that case like it was yesterday. They will not be amused at Savage’s racist ravings. “Ladies and gentlemen, Emmett Till would be 58 years old today. It wasn’t that long ago, folks. And some people,” and you point at Michael Savage “are still living back then”.

Now we’re ready to unveil our “theme” for the case.

Every case has one. It is the “golden thread” – the working concept that takes all of the evidence and “synthesizes” it into simple and clear picture. Our theme comes straight out of the Republican National Committee. This case is about “personal responsibility”.

You’ve seen that phrase. It is the phrase the right-wingers use to justify their “got mine, get yours” social Darwinism. If the working poor have a hard time commanding a decent wage in the “market place”, well that’s just because of their own “decisions”. They should take “personal responsibility” for their “failure” in life.

Your summation to jury goes something like this.

“Ladies and gentlemen, let me tell you what this case is not about. It is not about Michael Savage’s first amendment rights. The government is not trying to silence him, or to punish him for anything he has said. The question is not whether Michael Savage has the right to his homophobic, misogynistic, jingoistic, racist and generally extremist views. The question isn’t whether he has the right to broadcast those views. The real question is whether he has the right to have Proctor and Gamble subsidize his extremist views.

“He operates in the “free market” – something he claims to believe in. So does Proctor and Gamble. So does Culligan. [So does name a few more.] They have the right to decide whether they want their corporate image, and their “good will” with the consuming public associated with the homophobic, misogynistic, jingoistic, racist and generally extremist views of Michael Savage. His extremist views are his product in the market place. If Proctor and Gamble isn’t buying his product, whose fault is that?

“Michael Savage says it’s our fault.

“I say Michael Savage needs to take “personal responsibility” for the product he has chosen to offer his advertisers. I say that if Michael Savage turns on a microphone and broadcasts his extremist views over the airwaves, he needs to stop blaming other people for essentially repeating the same stuff he has already broadcast. I say that if Michael Savage chooses to be inflammatory and provocative – to put on a good show and attract listeners – he needs to stop blaming the people he inflames and provokes, because advertisers are afraid that the “blow back” from his provocations will cost them business.

“Ladies and gentlemen of the jury, Michael Savage needs to take his own conservative advice. He needs to recognize that decisions have consequences, and if advertisers are offended by his extremist views, that isn’t our fault. It’s his own fault. He needs to stop “blaming other people” for his troubles in the “free market”, and start taking a little ‘personal responsibility’”.

Yes, folks. Both here, and anywhere else, never miss a chance to take their own rhetoric and shove it up their ass.

And don’t worry. No jury in America will find you liable for his loss of advertisers. As for your counterclaim – the one for punitive damages. – well, I wouldn’t want to be sitting at his table while the jury is out.

That, my friends, is how you play “smash mouth football”. So sue me, Savage – or Weiner – or whatever your name is. I’m not moving to dismiss. I’m not objecting to jurisdiction. We’re picking a jury, and I’m kicking your ass into next week.

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