Animal Law Podcast #99: The Case of the Prohibited Protest

Mariann Sullivan: Oh, that's really nice to hear. I'm very flattered. And I'm really excited that you're a guest again, because you always have important stuff to tell us. And I feel like First Amendment stuff, which, you know, is one of your areas of expertise, is just more and more and more important for animal lawyers.

So this is good timing. So let's start, in time honored fashion, with the facts. Probably a lot of listeners know something about foie gras and why it has always been kind of a particular target of animal rights activists, but some may not. So you can just start off by setting us up by telling us what foie gras is and why people are upset about it.

Matthew Struger: Sure. Foie gras is the diseased liver of force fed ducks and geese. It's typically produced by shoving a pipe down a bird's throat, pumping large quantities of food into the bird's stomach. Some birds stomachs explode during the process. Those who don't, after a process of this force feeding for weeks or months, their livers bloat up to about ten times their normal size, and those birds are then slaughtered and their, diseased fatty liver is sold as foie gras. I sometimes say it's the cruelest food, although there's a lot of competition there.

Mariann Sullivan: There certainly is.

Matthew Struger: But it is at least so cruel that it's banned. It's either production or sale is banned in at least a dozen countries. It's banned in the entire state of California. It was banned in New York City.

Mariann Sullivan: For a moment.

Matthew Struger: The courts put that ban on hold and now that ban is back. There's not too many foods that are straight up banned in countries, or even cities or states in the United States, for their cruelty.

Foie gras is one of them.

Mariann Sullivan: So I'm not sure you know the answers to these questions all about the foie gras, cause that's not what the case is about, but I just thought I'd go through it. You know, I live in New York and I'm pretty familiar with Hudson Valley foie gras, which I think is either the only one left or the major producer of foie gras.

Is there any place else in the U. S. that foie gras is produced? And it seems to me that most of the foie gras that's sold is produced in the U. S. I don't think it travels real well.

Matthew Struger: I think that's right. And Hudson Valley certainly is the main villain. They're the ones who are funding and sometimes being plaintiffs in most of the litigation, challenging at least the California ban. I didn't follow the New York ban that closely, but I think they even intervened in that case or they were amicus, one or the other.

So yes, Hudson Valley, number one villain in the United States, whether there are other more small time producers, I don't know.

Mariann Sullivan: Yeah, I don't either, so I think that's fair. But like I said, not terribly relevant to the subject, but I just wanted a little background, you know, about what the animals are going through.

And you mentioned it's banned in California. It was banned in New York City, like there was a decision, but the case is still ongoing. I don't know whether the injunction is... it's not banned in DC, which is where this case takes place. And there's no particular regulation about it in DC, right?

Matthew Struger: That's right, it's as legal as any other food in D. C., as in most of the rest of the country.

Mariann Sullivan: So who are your clients here? And tell us a little bit about their campaign and what they're doing and why they're doing it.

Matthew Struger: Sure, my clients are three activists, who are part of what they call the D. C. Coalition Against Foie Gras, it's a sort of newly formed grassroots animal rights volunteer organization in D. C. that is seeking to end the sale of foie gras in the district.

Mariann Sullivan: Yeah, and this is a really annoying question, but I'm gonna ask it anyway, because I find this really interesting. Do they think of foie gras as a particular harm, or do they see attacking foie gras as part of a theory of change regarding the way people think about animals? You don't have to answer this, but I'm curious to know. I'm always interested in people who protest, and their reasons, and their theories of change.

Matthew Struger: Yeah, it's not a question I've asked my clients directly, but knowing them and knowing hundreds of people like them and my 20 something years in the movement, my guess is it's more the latter. It's more the theory of change. They're all dedicated animal rights activists, they're anti fur activists, they're vegans.

So I'm guessing it's less a specific objection to foie gras, whereas they wouldn't have an objection to other animal products, and it's more like the fur industry or like a lot of other people who go after industries that are sort of on their last legs, sort of seen as an easy win.

Mariann Sullivan: Yeah, and it's always difficult to choose what to be against because there's an enormous, enormous quantity of things to be against and foie gras is certainly an excellent choice. All right, tell us a little bit about Kinship and I assume it's pronounced Metier or something along those lines and why your clients chose them as the focus of their foie gras protests.

Matthew Struger: Sure, I think that's how it's pronounced. So these are two high end restaurants that share a location, or at least they share a building. I think they're on either side of the same building. They're very high end restaurants, 250 a plate or more, at least at the more expensive one, which is Metier, and...

Mariann Sullivan: That's really high end!

Matthew Struger: It's a French restaurant, it regularly serves foie gras.

The owner, Eric Ziebold, is something of a pretty acclaimed chef. He's been the commencement speaker at the Culinary Institute of America, but he's also somebody who was already subject to a good bit of controversy before this campaign kicked off. Back in, I think it was 2017, either way, a number of years ago, there was a fairly significant controversy over allegations that Ziebold had something of an abusive workplace and very low pay, 11 an hour, given what the cost of the restaurants were there. And then just last year, he had a more significant controversy over allegations that he was using racist language in the kitchen.

So, you know, these activists sort of chose Kinship and Metier, you know, primarily because it was serving foie gras and it was a target that was in Central City. So it was accessible for many people, but also in part because it was a restaurant that was already reeling a little bit from controversy.

I mean, they had to close for a brief period over the controversy last year, and picking a target that has already, you know, sort of on the ropes can be very strategic sometimes.

Mariann Sullivan: Yeah, absolutely. Tell us a little bit about... well actually first, something you mentioned that they serve foie gras, I know that became a, you should excuse the expression, bone of contention, whether they serve foie gras or not. We can go into that later, but do you just want to pin that down right now, why you, in spite of their denials, why your clients believe they served foie gras?

Matthew Struger: Certainly, it's uncontested, Ziebold concedes that when the protests started in late 2022, they certainly were advertising, selling, and serving foie gras. After the protest started, it seems that they took foie gras off the menu. There was some dispute about this. There was a Valentine's Day prefix menu that went up in February of this year that had foie gras on the menu.

You know, the restaurant claims that was a mistake and the actual menu that night did not actually serve it. But it didn't matter much for our case. The ask of the DC coalition against foie gras. was not just stop selling it, but pledge to not sell it again. Because otherwise, if they, packed up and stopped the protests the second it came off the menu, Ziebold and Kinship and Métier could just put it right back.

Mariann Sullivan: Yeah, tell us a little bit more about the protests. That was the ask, and I know that it's a little difficult to do this because the reports of the parties are kind of very, very far apart about what really happened here. As I was reading the first report, I was like, "Oh my God, this is unbelievable."

And then I was reading the second one and I was like, "Oh, it wasn't that unbelievable at all." So tell me a little bit about the factual allegations about what the protests were like.

Matthew Struger: Sure. The activists first approached Kinship and Métier and told them they were going to be a target of a campaign and asked them to take that pledge to both stop selling foie gras and to pledge to never serve it again. And they said that if the restaurant didn't, the coalition intended to start holding regular protests at the restaurant.

The restaurant refused, so the coalition made good on its word, and that involved, you know, a series of tactics. Those were protests outside the restaurant that had bullhorns and chalking and chanting and signs. It even involved some protestors going into the restaurant and protesting inside the restaurant until they were asked to leave.

And that's sort of a function of trespass laws, that if a place is open to the public, you can be there until you're asked to leave. And some protestors, you know, know that law pretty well and will do these kinds of disruptions on the theory that they can go in and until they're asked to leave, they can be in there.

So they sometimes went inside the restaurants. They had activists call the restaurants frequently asking them to stop serving foie gras and they had people leave negative online reviews about the restaurant related to them serving foie gras. Later the campaign sort of spun out into some, at least, threats of protests against a flower shop that Ziebold's wife, who is also the co owner of the restaurant, ran and just said, you know, we're going to start targeting other places as well.

But those protests never happened. And either way, that's sort of the allegations about the coalition protesting the restaurants.

Mariann Sullivan: Right. The allegations on the part of Mr Ziebold were more dramatic. I mean, he said things like, they were asked to leave and they didn't leave and just not... I don't know. They seemed much more inappropriate.

Matthew Struger: Yeah, so I don't want to candy coat this at all. I mean, this was on the sort of bleeding edge of radical protests. This wasn't your normal kind of, we're going to, you know, silently hold a candle outside this place. I mean, these were aggressive, radical activists who were maybe pushing some boundaries, admittedly.

This being, you know, 2022 and 2023, everything that happened was caught on multiple cell phone cameras, because everyone loves to record everything. And so one of Ziebold's allegations is the protesters came inside the restaurant and they stayed for 20 minutes and they didn't leave when asked to leave, when the cell phone video shows that people went inside and Eric Ziebold instructed his staff to lock the doors to the restaurant and then locked the doors to the restaurant and kept everybody inside for 20 minutes until the police arrived. And then he asked the police, you know, arrest them for trespassing and they said, "No, you locked the doors and that's probably false imprisonment. So everybody just calm down and, go home."

Police were called many times. Police never cited or arrested anyone in connection with any of these protests. So they were maybe a little bit more aggressive. They were a little bit more radical, but there was plenty of like law enforcement involvement in watching the protests and being called and trying to ask to mediate things, but there were never any arrests or even threats of arrests.

Mariann Sullivan: Yeah, that was actually one of my questions. I wasn't totally clear on whether the police had been called and responded. So, I guess that was one thing that Mr. Ziebold tried, and having been unsuccessful, he decided to bring legal action. Tell us about, this is under an anti stalking law, and that's where this case starts.

I promise everybody, this is where it gets really interesting, because the law here is... not that the facts aren't interesting, but the law is really interesting. Because an anti stalking law, that sounds like a good thing to a lot of people, you know, domestic violence, that sort of thing, it brings right, but it's being used apparently in creative ways.

And so he brought an anti stalking petition. So can you tell us a little bit about DC's anti stalking law and the procedure for obtaining an order under it?

Matthew Struger: Sure, I'm going to talk about more than just DCs, I think, because this is just a tactic that is exploding amongst people who are trying to silence their critics. I have numerous cases here in California involving, in California they're called civil harassment restraining orders, and just took one on behalf of some activists to the California Supreme Court twice.

So yes, civil harassment or anti stalking restraining orders procedures are important. They're motivated by legitimate interests. Usually intimidating, often gender based harassment that serves no legitimate purpose, usually some kind of jilted romantic interest that, you know, becomes... turns into just insane stalking.

And so these procedures are good. They seek to provide sort of a quick, truncated procedure, usually using forms that average people can fill out. And most people go in without an attorney, they go in pro se, and they can usually get a temporary restraining order with no notice to the other side. So you just go in alone, ex parte.

Those are almost always rubber stamped. And then the actual hearing is set out usually some, you know, a couple of weeks, usually three or four weeks out. And there's, unlike a normal civil process, there's no discovery, there's no motion practice. Often there's not even a responsive pleading.

There's just a, "Hey, you know, somebody's filed a restraining order petition against you, show up in a couple of weeks and tell your side of the story as to why it shouldn't happen."

But those procedures that make them sort of usable for normal people and normal victims of legitimate stalking and harassment, Also make them very attractive for someone who's just looking to shut up his or her critics. So you can just go into court and get an order saying don't come anywhere near me or my business.

And that ends a protest campaign. So more and more people are trying to get those kinds of orders instead of suing for the normal torts that people would do to shut someone up, say defamation or interference. Business Advantage or something like that, because you can go in and you can get this real quickly, and, and it can really shut somebody down.

To prevent that, most of these statutes have pretty significant guardrails built into the statute to prevent abuse, and they usually work. So in both California and D. C., any restraining order that's based on the restraining party's speech as opposed to their conduct, has to involve speech that falls outside the First Amendment.

So you have to prove that the speech is a threat or that it was an incitement or something else, even defamation. So the First Amendment protections are built into the statute itself. In California, and for a little while in D. C., but the case was kind of shifting on this, the speech or conduct also had a lack of legitimate purpose.

So, you know, there were two lawyers, of course, they were lawyers who sued each other over one playing basketball too late at night, and they went up to the Court of Appeal, and the Court of Appeal said, "Sorry, playing basketball, even if it's annoying, is a legitimate purpose."

Basically said you could go through the normal procedures with discovery and motion practice of a civil case for nuisance, but just because something's a nuisance doesn't mean that it's harassment that lacks legitimate purpose.

Mariann Sullivan: Yeah, no, these are really for kind of, they're sort of an emergency kind of application for something that's a little bit dire, right?

Matthew Struger: Yeah, yeah, exactly. And I think more importantly for these cases, only a human person can get an anti stalking or civil harassment restraining order. They're not available to corporations. It's maybe one of the few places in animal law where the human personhood exceptionalism is helpful. And then, and finally while not specifically baked into anti harassment statutes themselves, these actions, at least in California and DC, are also subject to those jurisdictions anti SLAPP laws. Happy to talk about what anti SLAPP laws are or not, but that's sort of helpful.

Mariann Sullivan: Yes, we're definitely getting to that. That's crucial. But first, before we get to it, tell us specifically about this order. What was the order that was imposed on your clients?

Matthew Struger: Yeah, so in response to the protest, Eric Ziebold sought one of these D. C. anti stalking order protections against three of the activists in the D. C. coalition against Foie Gras. Um, the magistrate judge who heard the motion ex parte on the emergency basis, you know, entered the temporary anti stalking order and that restrained the activists from being anywhere near his restaurants, the target restaurants.

Or saying anything, quote, false, unquote, about the restaurants online. And so before they ever even knew the lawsuits existed, the first notice that my clients received was an order saying, don't say anything false about this guy online and don't go anywhere near his restaurants.

Mariann Sullivan: And you said it set down a date for a hearing that people could come in and say, this order was improperly imposed. Is that a standard factor when these orders

are issued?

That's the due process?

Matthew Struger: That's usually yeah, the both the due process and the just process, is that usually a temporary restraining order issues, whether it does or not, the court sets the final hearing, you know, some time out both in California and DC that tends to be about a month out.

And so that allows the restrained party, or the, you know, if the TRO does an issue still just the respondent or the defendant, time to sort of gather their whatever they're going to present, testimony or anything else to present to the judge, just say why the restraining order shouldn't issue.

Mariann Sullivan: All right, so let's take a moment out and now let's do what you just did for... and it's a little confusing that both laws are called anti something. For what you just did for anti stalking laws, now you want to do for anti SLAPP laws. Tell us what anti SLAPP laws are in general and DCs in particular.

Matthew Struger: Sure. So back in the late 1980s, early 1990s, researchers and activists noted a trend where wealthy interests were filing frivolous lawsuits against their critics that didn't appear to be designed to win. They just seemed designed to shut the other side up. And the thinking, which I think is right, and you know, give them credit, it may be smart, is that people with limited means, who are usually the protesters or the critics, are intimidated by the judicial system, so they don't have money to hire lawyers.

They're unfamiliar with the process. Some don't know the difference between civil and criminal proceedings, and they just don't want to be in years of litigation. So, for the wealthy though, litigation is just the cost of doing business. Oftentimes, that cost is less than the criticism is imposing on them.

So the idea is, file these lawsuits in the hopes that the critics will just cave and agree to shut up in exchange for the lawsuit going away. And the research termed these lawsuits, strategic lawsuits against public participation, which is something of a, a backronym, I think, but, um, but you know, it's S L A P P or a SLAPP.

So in 1992, California enacted. The first anti SLAPP law, and it works something like a motion to dismiss, but unlike motion to dismiss, it's evidentiary. So early in a case in California, it's within 60 days of being served, I think in D. C. it's probably, I think it was within 30, I'm not sure. But a defendant can ask the court to dismiss the case as a SLAPP, and there's two steps to an anti SLAPP motion that involves some burden shifting.

So in the first step, the defendant, the speaker, the activist, has to show that it's actually a suit that involves some kind of retaliation for speech or protected conduct. And there's different ways you could show that, but basically, most states you have to show, you know, this is the elements of this claim require them to prove that I spoke out on an issue of public interest.

And if the defendant shows that, the burden then shifts to the plaintiff. to show that he or she has a probability of prevailing on the merits because you can still sue somebody over protest activity if it's legitimate and you could win. But if you can show that both it is a SLAPP and that the other side isn't going to prevail, like basically doesn't have the facts or even the legal pleading to show that they're going to win, then the court can dismiss that early on.

Mariann Sullivan: I'm sorry. Can you just, my brain blipped. Who has the burden on that?

Matthew Struger: On the first prong, on showing that it is an action that arises out of speech, the speaker or the defendant, the person being sued, the critic, has that burden. If that defendant meets that burden, the burden then shifts to the plaintiff, usually the wealthy person trying to shut somebody up, to show that basically the case is legit.

And if they show the case is legit, then they can proceed. But if they can't show the case is legit, then there's basically two results. The anti SLAPP motion gets granted, and there's two things that happen when an anti SLAPP motion gets granted. First, the case is dismissed with prejudice, meaning the plaintiff, the wealthy person, can't go back and file another case over that same action.

And the second is that the plaintiff has to pay the defendant's attorneys, and that's really important because again, the speakers often have limited means, they can't go hire expensive lawyers, and so it gives an incentive for lawyers like me to take cases on behalf of people who can't pay them a penny on the idea that if we win the anti SLAPP motion, the bad guy is going to be paying my bills.

The fee shifting also serves as a deterrent because if the plaintiff, the wealthy person, knows that they might be paying two sets of lawyers, both their own and the other side's, it's, you know, much less likely that the SLAPP will be financially incentivized for the plaintiff to file that SLAPP in the first place.

Mariann Sullivan: Yeah. No, that's a great explanation. And my explanation for why I got confused probably didn't happen to anybody else, but I'm just saying it is because I think of anti SLAPP as being a lawsuit, but it's not. It's a procedure for bringing motion within another lawsuit. So the plaintiff is the person who filed the first lawsuit, the wealthy person, as you like to characterize them, and the defendant remains the person who's bringing the, it's just a motion that the defendant can bring.

Matthew Struger: That's right, and you know, I have a lot of trouble because I still think of myself and came up as a lawyer, as a plaintiff's attorney, I was bringing claims against the bad guys on behalf of the aggrieved, whether those were animal rights activists or other social justice activists, and in anti SLAPP, you're the defendant.

And so you really get used to saying, you know, the other side is defendant, the other side is defendant. And it takes some getting used to to realize that they're switched in this context.

Mariann Sullivan: It is, I mean, I spent most of the first year of law school trying to keep plaintiffs and defendants straight. You would think that I would have it by now, but no. All right, so before we get back to the case. We're talking about now, there's this motion being brought, there's an opportunity to get lawyers involved, and that ended up being you, in California, and two other lawyers, well I think one is in D. C., but one is not. Chris Carraway, who's in Denver I believe. Can you explain how this defense team, the DREAM team, came together?

Matthew Struger: Sure. I... I think I mentioned this before, but I've done a lot of anti SLAPP work against civil harassment restraining orders here in California. I think probably more than any attorney in the state or country maybe. I had cases for a lot of housing rights activists because landlords are big, big proponents of doing this.

And took one of those cases to the California Supreme Court twice and got successful rulings out of the court both times. Uh, and then also for some animal rights activists who were protesting vivisectors houses here in California back maybe 15 years ago, and then for somebody who, you know, some of these proud boys, some of these like white nationalists were suing basically their critics online, and trying to get civil harassment restraining order saying you can't talk about me.

So I had a lot of experience, and I think people in the movement sort of knew I did these kinds of cases. I probably had eight different people reach out to me saying there are these activists in D. C. who need representation. This is the situation.

I just kind of said, listen, I'm like, I'm busy. I'm barred in D. C., but I'm not there. Let them keep trying and I kind of said no ten times before I said yes but nobody else would take it like literally they called a lot of attorneys including a lot of animal rights attorneys and I know at least one of them, a prominent animal rights attorney in DC told them the case was unwinnable and that they should just concede and sort of throw in the towel and agree to the injunction.

But, before I came on, Bonnie Clapper, who's a New York based attorney who does a lot of work with Direct Action Everywhere, was helping doing some negotiations. She couldn't make an appearance or litigate the case, but she was trying to see if there was some kind of resolution she could reach with the other side.

That was ultimately unsuccessful, but she couldn't come in and actually litigate it. So I finally said, okay, I'm pretty busy, but I can do this, but I'm going to need some help. So. Chris Carraway is an old and dear and good friend, and he is currently at the Denver University Animal Activist Defense Project.

That name might not be exactly right, but that's basically what it is. He's a former public defender, and since this had an anti stalking element to it, this sort of has this quasi criminal aspect to it. It sort of incorporates the DC criminal stalking law into a civil procedure. I asked if he would be part of it, he said yes. And then I did not previously know, but learned of, Nigel Barilla, who's, very smart, you know, one of these Harvard grads, kinda academic, maybe a little bit more, uh, risk averse than I am, which is maybe a good thing sometimes in some of these cases.

Mariann Sullivan: I think most everybody's more risk averse than you are, Matthew. That's, that's the story on the street.

Matthew Struger: Yeah, I sometimes hear that I'm the preferred attorney in the movement because I'll tell people that they can do what they want to do.

It's just a reputation I'm a little proud of. But anyway, Nigel had been doing some work with advancing law for animals. And I know you've had Vanessa Shikib on the show before. She's a dear friend and I was telling her about the case and she said, you should reach out to my co counsel in one of my DC cases, Nigel, see if he might be interested.

And, and he was, he actually does a lot of, sort of pro bono, on both sides, anti stalking order litigation in D. C., so he had knowledge of the procedures. And the procedures in these cases can be, you know, they're weird, they're truncated, they're short. You kind of have to know what you're doing.

In D. C., you file documents with the court, not through the e filing system, but by emailing them to the judge. Just little things like

Mariann Sullivan: It's all those little things that are the hardest to figure out whenever you're not in a jurisdiction that you practice in all the time.

It's like, which building?

Matthew Struger: Yes, absolutely. And even people who practice in DC probably don't know these procedures. So, Chris has kind of the criminal knowledge. Nigel had the local knowledge and also they're both brilliant, and then I sort of had the kind of anti SLAPP experience and the sort of first amendment experience.

That's kind of how the team came together, basically through connections and luck, which I'm always telling law students. I don't feel like people tell them about those enough, like, go to the conferences, meet people, that's part of how you do this, it's really kind of social.

Mariann Sullivan: Yeah, absolutely. And, I hope growing that there are more people out there who it is possible to find than there used to be. So, all right, we have a basic idea. Let's get back to the case. So the clients are served with this order. The matter is set down for hearing. I assume they could have just appeared at that hearing and contested the order, but then you entered the procedure.

You got a few continuances. What did you end up having to file? And I guess one thing I'm curious about is why you had an opportunity, as we talked about, due process, or at least process, to go in there and they had an opportunity to go in there and present their side of the story. And now they were represented.

Why go add anti SLAPP suit on top of that ability to just go in there and contest what's going on? Did it give you certain advantages?

Matthew Struger: Yeah, I think it does give us certain advantages, I mean, well, one is both the retributive incumbents compensatory function of we get the attorney's fees if we win. Where you don't get the attorney's fees if you just beat the anti stalking restraining order.

And it's also, it kind of flips the advantages. I mean, then you're the moving party. You get the reply brief, you get the take the first punch. I always like having the first punch and the last punch. And so it's sort of like you get to fight the battle much more on your grounds and to foreground your own story and your own evidence, as opposed to just coming in and defending against the other side's story and the ultimate merits hearing.

And if you lose the anti SLAPP, you could still win on the merits hearing. So it also just gives you, another round in the fight, that you don't get if you just come in and oppose it straight out.

Mariann Sullivan: Yeah, good point. So this, the anti SLAPP law had not previously been, this hadn't been litigated before in D. C., right? About the application of anti SLAPP law to anti stalking law.

Matthew Struger: That's right, and the anti SLAPP law in DC is relatively new, 2015 I think, where we've had California since 1982. The anti stalking order provision is brand new, but it used to be an anti civil harassment like California. But even that, as far as we could tell, there are no case law applying, the anti SLAPP law to civil harassment petitions.

And at least in California, that was always something of a contested issue, whether the anti SLAPP law was designed to protect against those kinds of lawsuits. And so I thought it would be fun to try to bring the first one in DC, or at least establish that law that the anti SLAPP applies to those kinds of cases.

However, you know, the other side didn't even fight us on it. They didn't argue that it shouldn't apply. So, that was an easier fight than I thought we were going to get on that issue.

Mariann Sullivan: Huh, I can't imagine why it wouldn't apply, but I'm sure it's a complicated area which you could talk about for a long time and we probably don't have time to go into. But I'm intrigued. And all right, so your client's first argument, I think it was the first argument, relied on this distinction between the applicability of the anti stalking law to individuals and to businesses; the chef and the restaurant.

And that ended up kind of being disponsive, which means that if this weren't a podcast where we could do whatever we want, we wouldn't necessarily have the opportunity to discuss everything else. And I do want to get to everything else because you made a number of really interesting arguments, which I think other people who might be confronted with these issues would want to know about.

But let's just talk about that issue because that seemed like, from the very beginning, it seemed kind of obvious these laws were passed to protect victims, not to protect businesses.

Matthew Struger: Yeah, and that was our argument, basically. This is a procedure that applies to people, corporations can't bring it. And the owner of a corporation can't just say, "The people criticizing my corporation are stalking me." If you could say that, then what's the point of having the prohibition on corporations bringing anti stalking orders?

It's just an end round. So we said, Eric Ziebold, his name is very associated with these restaurants. He's a renowned chef. These are his restaurants. So some of the signs, you know, said Eric Ziebold tortures ducks or something to that effect. So his name was part of it.

But this wasn't really activity directed at him, this was activity directed at the corporation. These were protests of a business. And we said, just basically, you can't stalk a business. You might be able to go in civilly as a business, in regular civil procedures with discovery and a trial and say, "Oh, you've defamed my business or you're tortiously interfering with our economic advantage," or something like that, but that's not what the anti stalking truncated procedures are designed for. Like you said that ended up being dispositive. The judge basically said this activity wasn't directed at Ziebold personally this was directed at his restaurants.

Mariann Sullivan: Yeah. And I mean, obviously every corporation has people, I mean, it's, it's a fictional entity, there's going to be people involved. So yeah, it is hard to see how that could be separated out, but there were lots of other arguments made and a few that I'm interested in, but please add whatever ones you think were particularly interesting.

He argued that it didn't apply, the anti SLAPP didn't apply, cause it wasn't about, he wasn't talking about speech, he was talking about conduct. Is that a valid distinction, and how do you make it if it is? And do you think it would have been made here if the judges got into that?

Matthew Struger: I don't know. I mean, people who are trying to suppress speech often try to rely on this sort of speech conduct distinction. I think I was on this show six, seven years ago now, talking about ag gag laws, and that's something we've been, you know, we've been fighting these ag gag laws since 2015, you know, almost a decade now.

And in every case we file, we're still litigating those. You know, the other side comes in and says, "Well the recording, you know, the undercover recording on factory farms is conduct, that's not speech." We say well it's conduct preperatory to speech, or it's conduct intertwined with speech. Basically, you can't outlaw the conduct of putting pen to paper and then say you're not outlawing speech.

You can't prohibit, you know, the making of a protest sign, and then say you're not going after speech. Some of the like most notorious cases the left hates get at this principle. I mean, Citizens United, they said the defense was giving money to campaigns isn't speech, it's conduct. At least that was one of them. And the court said, restrictions on speech can happen at any point in the process. If you cut off some act, that's like preparatory or like directly involved with speech, you know, you're affecting speech.

So to the extent the conduct was going in the restaurant or the conduct was leaving a review online, you know, using a computer to leave a review online, it's all part of a protest campaign and it's all part of speech that's protected by the First Amendment.

Mariann Sullivan: Yeah, certainly leaving a review online. I mean, like, that, like, or you have to type. There's sort of conduct involved in that. But another thing about the social media, I mean, a lot of what they talked about was social media posts. Another thing about them, I guess it's not inconceivable, but it's hard to imagine how a social media post would rise to the level of stalking in any case. I mean, stalking...

People say all sorts of things on social media. I guess it's possible. I mean, it certainly didn't happen here, but it's possible.

Matthew Struger: Yeah, I mean, the big true threats case that was decided by the Supreme Court this last year, Counterman, was about Facebook posts and the like. So there are plenty of cases of sort of stalking and civil harassment that arises out of stuff people say online, but usually it's stuff that's directed at the person, either on their wall or tagged them, yeah, and involves some kind of real threat, correct.

Mariann Sullivan: Another type of conduct that they talked about, and they kind of emphasized it, particularly when talking about Mr. Ziebold's wife was monitoring. Like that word is in the statute, but what the hell does that mean? I mean... Presumably, it means more than just looking up somebody's social media and figuring out some info about them.

Otherwise, we would all be monitoring everybody all the time, like, that's just what people do. Like, what does that word mean? Or is that yet to be litigated?

Matthew Struger: Yeah, I don't think DC has any great law on exactly what monitoring means, but you know, my sense of it is, and if you think of the sort of quintessential of a stalking situation, you know, it's somebody following you down the street, it's somebody hanging out outside your house for no legitimate purpose, you know, not connected to any like protest or anything, but because there's some sort of animosity usually that grows out of some misdirected romantic interests.

And that monitoring means that kind of thing. And you're right. Ziebold said that because people researched who owned the business and then researched what other businesses those people owned and what their phone numbers were, or even like went on their Facebook page to see like where they were having yogurt, you know, doing whatever they're doing was basically the type of monitoring that accounted to stalking.

Again, the court never got to that issue...

Mariann Sullivan: Yeah, I know, I'm just going through some of these issues because I think there's so many interesting issues that the court never got to. Because it actually ended up being fairly easy for the court to decide. And I just wanted to go through a little bit, you already alluded to them, but your arguments, in addition to the main argument, which was successful, that the statute simply didn't apply, were First Amendment arguments, and that is your area.

That's why you were involved in this. And yet I guess the law shifted a little bit after this case was decided to actually confirm what your arguments are. So rather than going through all of that process, can you kind of just summarize for us what some of the First Amendment issues would be, in a case where they became relevant and how they would be resolved, at least under DC law?

Matthew Struger: Sure. And you're right that the law shifted after we had argued the case, but before the case had been decided.

So we had to move on. Like a month in between where there was this case called Mashoud v. Boone that was pending before basically the equivalent of a D. C. Supreme Court. So there's the D. C. Trial Courts, there's the D. C. Court of Appeal, sits in three judge panels like most appellate courts. And then if there's going to be further review from that court, it's the D. C. Court on Bonk. So it's all the justices on the D. C. Court of Appeal. And so there was a D. C. Full court en banc, court of appeal case about a guy who found out that his wife was having an affair with somebody at this firm where she was having an internship, I believe.

And so he started emailing people who worked at that law firm saying, you know, this guy's scum, you know, he stole my wife from me. He's a bad guy. I can't believe you're hiring him. You know, this is despicable. And the man who was, you know, at the firm who was having the affair filed a, well, it was then a civil harassment petition, against him saying, you know, this man's harassing me. He's, you know, calling my work and saying they shouldn't, have anything to do with me. And the first husband, the speaker, said, well, this is protected speech. There's nothing here that's outside of the First Amendment.

And the trial court said no, it doesn't have to be a specific, recognized exception to the First Amendment. It basically just has to sort of lack a legitimate purpose. And, you know, maybe you didn't have a legitimate purpose here. And that went up to the Court of Appeal. The Court of Appeal split 2 1 with the majority affirming so then it was on appeal and the question on appeal was basically does speech have to be recognized as an exception to the First Amendment to form the basis of an anti stalking or civil harassment restraining order.

And the ACLU came in and Eugene Volokh and a bunch of people on the side of the defendant in that case saying, yes, of, of course speech can't be the basis of any civil liability or criminal liability if it's not a recognized exception to the first amendment. So the speech has to be a threat.

It has to be fraud. It has to be defamation it has to be, you know, one of the few recognized exceptions to the first amendment to form the basis of an anti stalking order and the court of appeal en banc agreed with that and said, basically, yes, if the speech is the basis, it has to be a recognized exception.

And they said, you know, there's no exception here. He was sending these, letters, they weren't threatening, they weren't inciting anything, they weren't fraudulent, they weren't defamatory, they were all truthful statements, and they're annoying, and certainly the guy didn't like them, but it doesn't mean that they can be the basis of any civil liability.

And that was basically what we argued too. That was like, listen, Ziebold doesn't like anything everybody's saying here, but there's really nothing here that's outside the first amendment or certainly nothing that rises to the level of a threat that would qualify as stalking.

Mariann Sullivan: Yeah, no, that does. It seems obvious now that it's decided, but I guess it wasn't, since they had to go bank to decide it. What about defamation? That can be outside the First Amendment, but are we just going to end defamation law and just get protective orders every time somebody says something we don't like, that's not true?

Like, how bad does it have to be in order to warrant this kind of emergency application?

Matthew Struger: Yeah, I don't know that we actually argued it explicitly and we might, maybe we'll get to this. This case is looks like it's going to go on appeal. But there is the question of sort of, well, even if it's outside the First Amendment, is that still enough for an anti stalking order? Like yeah, defamation is outside of the First Amendment, but saying someone defamed me is usually a civil tort for money damages that involves normal discovery procedures and all...

Mariann Sullivan: And pretty high standards of proof.

Matthew Struger: Exactly. Yeah, and high standards of proof. And so it doesn't really seem like an anti stalking order procedure is the right place to litigate a defamation claim. And so, I think somewhere lurking in our argument was this idea that, yes, threats and incitement and the sort of like personal harm, or you know, the real like threats to physical safety types of exceptions to the First Amendment can support an anti stalking order.

But something like Defamation probably shouldn't, but I don't know that we ever like quite made that explicit. We might have to later.

Mariann Sullivan: Yeah. When you first hear about this, you tend to think of it, well, is this right or wrong? But that's not really the question here. The question is, is it an emergency? And does that, I mean, if somebody defames you, you can sue them. If somebody is doing something illegal or breaking into your restaurant, you can call the cops, which they did, and apparently nothing happened, or you can file a complaint.

It's the erosion of the emergency nature, I guess, that makes these laws fairly dangerous in the free speech area.

Matthew Struger: Yeah, and they're designed to prevent stalking, I mean that's why it's called an anti stalking order, so, you know, they're not called anti defamation orders.

Mariann Sullivan: So, there will be an appeal or it looks like it.

Matthew Struger: Well, we'll see. Ziebold was first represented by, what looked to be like basically, a medium sized firm in D. C. that did a lot of maybe like white collar criminal defense. I'm not quite sure how he ended up with those lawyers. I think they even admitted they were kind of out of their depths in the First Amendment stuff.

So when we came in, he brought in other counsel. He brought in Clement and Murphy, who are something of a notorious firm. Paul Clement may be one of the, if not, The most respected appellate advocate in the country in the, in the top five, a former Solicitor General under George W. Bush, who defended, Guantanamo and all the war on terror horrors.

And then, has been known more recently for his work striking down gun laws across the country. He brought and argued the Bruin case in the Supreme Court, and then was kind of forced out of his old big law firm, which I believe was Kirkland Ellis. Because they didn't like the blowback they were getting from his second amendment work, and he founded a firm that is I think, almost every attorney there is like clerked on the Supreme Court, you know, very prestigious, expensive, you know, everybody there is billing four figures an hour, even four years out of law school.

So I don't know if Ziebold's, you know, paying those rates or sort of how it happened, but a younger lawyer at that firm joined up in the defense and was arguing more of the First Amendment things. It didn't end up working. And so the judge granted the anti SLAPP and then we moved for attorney's fees.

We're asking for 182,000, I think, from Ziebold himself to pay, for the cost of the legal defense in all three cases combined. Ziebold is very, very, very adamant that he's not going to pay a penny and that he thinks it's unfair that he might have to pay a penny. The clients are still communicating with Mr. Ziebold because they're still trying to get him to sign the pledge and to stop the protests and to sort of wrap this all up. And he's saying he won't settle the case with them at all unless they agree to sort of waive the fees that he owes their lawyers. Ziebold said in some of those communications, you know We filed the appeal because we had to and we don't want to pay the fees. So, maybe the appeal's a bluff or just treading water until they can find out whether they want to actually bring it.

But for the time being, it looks like we're going up on appeal and the fee motion's still to be litigated. We filed our fee motion, I think his opposition's due on Friday and then we have 30 days to file our reply.

Mariann Sullivan: Wow. He sounds like a chef out of a bad television show. It's like the cliche of the angry chef. Alright, here's a question that's a little bit out of left field, but somewhere in their papers where I was looking at it, they alluded to the idea that this activity kind of reached a RICO level. They didn't use the word RICO, but I think they used the word racketeering.

And I don't think that they were going there, but is that something that makes you nervous? In the same way that these laws, which were developed for a different kind of harm, are being used against ordinary people. Do you worry about RICO too? I mean, of course, we're all very familiar with RICO at the moment because of the Trump issues. Do you worry that RICO could be weaponized by anti animal rights activists, lawyers?

Matthew Struger: Yeah, I think two answers, specifically and then generally, specifically in the sort of anti stalking, context of this case, no, because, again, for the same reasons that everything else in this case isn't, this is just, isn't the right vehicle. This is it's anti stalking for an individual.

It's not sort of RICO against a business. You know, part of our argument was that the restaurant could go file any of these torts in civil court if it wants to, that actually accrue to the restaurant, whether that be tortious interference or defamation or RICO or whatever.

And now it looks like Ziebold is, you know, sending cease and desist letters, saber rattling that he's going to file that case in civil court. So you know, in that sense, yeah, you know, he very well might, I think, at least in this case, the First Amendment protections are pretty clear. RICO doesn't defeat the First Amendment, nor does any other statute.

Um, so...

Mariann Sullivan: But I was thinking also of just other types of animal rights cases where, or perhaps it wouldn't be so much of a First Amendment issue. I just wondered whether it's kind of a thought since RICO is on everybody's mind these days, it's kind of a thought that had risen to my mind.

Matthew Struger: Yeah, I know back in the 1990s or maybe it was the early 2000s, you know, PETA came in on behalf of pro life activists who are getting hit with RICO lawsuits over their protest activity against abortion or reproductive rights. And I mean, PETA came in and decided that the pro life people are basically just saying you can't say that just because people are talking to each other and forming a protest that, that harms a business, that it's RICO.

And so, these already have been sort of weaponized in ways that could threaten the movement. And, but you know, it's not something I've seen in the last, I don't know, maybe 15 years.

Mariann Sullivan: Well, keep your eyes open. So you've been doing a lot of speech law on behalf of animal rights. You don't do exclusively animal law, certainly, but animal law has had a lot of speech cases, really. I mean, you talked about one, the ag gag cases, which you were on the podcast about, the bus ad cases, which you were on the podcast about, and there's the famous crush video case.

That's a little... Bit different. The labeling cases. There's a lot of First Amendment issues in animal law. So just taking a step back, big picture, how would you advise people in animal rights about what they need to know and how they need to be prepared? And, you know, not just prepared for something bad to happen, but prepared to do as much as they can do without getting into trouble.

Though it sounds like they can get into trouble even if they don't do anything wrong, but that's always the case.

Matthew Struger: Well, I mean, anybody can file a lawsuit over anything. I always like to tell people you don't have to have a legitimate basis to do so, unfortunately. Well, fortunately or unfortunately, I mean, I filed a case saying that the orcas at SeaWorld were slaves. So, you have to have some wiggle room to sort of bring the new and interesting cases.

And I don't love the idea of restricting the way plaintiffs can bring cases, but you know, as far as what activists know, you know, just don't do anything that's too stupid. I think that's the real, is the real advice, you know, do not threaten anyone, do not do anything that could be taken by a reasonable person to be a threat.

There's plenty of unreasonable people that think like, Hey, ho, you know, this guy has got to go is a threat that you're going to take him down the street and kidnap him or something. But, you know, I think that a reasonable person could think is going to actually, you know, threaten them with fear, bodily violence or property damage.

Don't say anything that's false. You can say your opinions all day long, but if it's something that's capable of being proven, true, or false. Don't say false things, that's how you

Mariann Sullivan: Yeah, and mention it's your opinion from time to time. When it's your opinion.

Matthew Struger: Yeah, sure.

Mariann Sullivan: Excellent advice. Uh, anything I should have asked you that I didn't?

Matthew Struger: I don't think so.

Mariann Sullivan: Well, this is really, really enlightening. I'm looking forward to see what happens next. Are they still out there protesting?

Matthew Struger: You know, I don't know. I know there have been some protests post decision. I think they've maybe even been put on hold while they're trying to, negotiate with Mr. Ziebold because he showed some interest in maybe reaching a resolution that didn't involve attorney's fees. But then when they tried to take him up on that, he backtracked and said any resolution has to mean he doesn't pay anybody anything.

So, my understanding is the protests either have started up again or will be soon.

Mariann Sullivan: All right. Next time I'm in D. C., I'll make sure to drop by. Thanks so much, Matthew. This has really been... we went deep and you took us very deep into the issues and I really appreciate it.

Matthew Struger: Thanks for having me on. I love being on.