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Bitch-SLAPPed: Poulter, Ernst lawsuit threats intimidate critics like Comic Book Hut (and me) into silence

by 06.21.2022

UPDATE, 6/22/2022, 1:30PM EST, YouTube creator Comic Book Hut briefly broke his week-long silence in a now-removed video where he states, “It doesn’t look like we’re doing any more videos on this channel anymore” because he says he is being threatened to be sued. The original article follows below the copied Hut video.
 

 
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“I feel very vulnerable right now and very uncomfortable doing this video.”

That was the introduction to a now-deleted video by YouTube creator Comic Book Hut on June 12, outlining his fear of reporting on former Washington Times journalist and “Soulfinder” creator Douglas Ernst, after revealing that the video content of his channel included several private sources of information, including pre-made videos and free comic books to review from Ernst.

“These sort of short-clipped videos that I have on my channel that include music, those were not created by me. Those videos were created by Douglas Ernst,” Hut stated, divulging his private sources included none other than Ernst, who he says provided him with the videos and comic books to review, and promised he would prove his case in further videos reports.

“I will have a follow-up video on that… I will have three videos up this week on them. This one, a second one and another at the end of the week which will be a lot of fun, that’s going to be fun…” Hut stated. The videos have yet to be published.

Ernst has since confirmed sending comic books to Hut to review, in a public June 13 tweet stating “Hut told me he wanted to do HONEST reviews years ago. He asked if I was done with books he could read. I said sure. Now he is making the case that he was dishonest. That’s on HIM.”

And to sending the derogatory videos to Hut, in another June 13 tweet, stating “I gave Hut clips that he wanted of Ethan [Van Sciver] lying about me and my friends. I gave him clips about Iconic [Comics] that Richard [C. Meyer] deleted.”

Hut stated in the video: “He… started feeding me certain information on some of the prominent people in Comicsgate like Ethan Van Sciver and Richard C. Meyer and I started doing videos on them talking about them…”

Hut’s original confessional video, and other anti-Comicsgate videos Hut created targeting Ethan Van Sciver, Richard C. Meyer and Mitch Breitweiser have all since been removed by Hut from his channel.

Hut has even removed videos whose sources appear to have been someone other than Ernst, including videos about Preston Poulter’s ongoing litigation against Ethan Van Sciver to wrest the Comicsgate trademark from Van Sciver and Antonio Malpica at the U.S. Patent and Trademark Office’s (USPTO) Trademark Trial and Appeal Board (TTAB).

In one now-removed, early March 2022 video, “#COMICSGATE TRADEMARK UPDATE: MALPICA LOSES and POULTER COULD WIN TM,” Hut was showing what he thought was a federal judge’s ruling in Florida against the Comicsgate trademark that Antonio Malpica had registered in July 2020 following a Sept. 2018 application. This would have been big, breaking news for Hut’s small channel. But the video was factually inaccurate. He got it wrong.

The document showed on the video matched a petition for reexamination that would not be filed until March 23 at the USPTO by Poulter’s attorney as the agency now considers whether Malpica used the Comicsgate trademark in commerce prior to an Aug. 2020 legal deadline in an ex post facto, ex parte hearing retroactively created by a change to federal trademark law in late 2020.

Malpica hadn’t “lost” anything as of the posting of the video in early March. At that point, the reexamination motion hadn’t even been filed yet. The Hut video was misinformation.

As of this writing, the reexamination of the original Malpica mark still has not yet been adjudicated, although a review of other reexamination ex parte proceedings shows the motions appear to take about two months to be adjudicated from the time of the institution of the ex parte proceeding, which began on May 9.

Apparently, Hut didn’t always understand the context of what his sources were sending him sometimes. Was he a puppet?

But now all those videos are gone, and Hut says he fears for his safety: “This is not a joke. And I’m very concerned for the safety of my family after this comment.”

Hut’s video was responding to a direct message confirmed by Ernst that stated “All I did was be nice to you. Call me when your [redacted] dies if you need money for [redacted] funeral. Also, I hope my script feedback helped.” Ernst has confirmed he previously helped Hut pay for his mother’s funeral.

Hut responded to the direct message directly on the video, stating, “This is about as vile and disgusting a comment as it gets. This is not professional…” Hut added, “He thinks that family is a weakness of mine. My family’s my strength. It’s not my weakness.”

Since then, Hut has appeared on a June 12 Jon Del Arroz video where Hut partially revealed emails from Ernst with video attachments.

 

‘Chilling effect’

Ernst for his part has since threatened lawsuits “if any laws are broken” in a June 15 tweet: “This is one of the last things I will say about this topic: An army of online goons is causing problems for my friends and family. If laws are broken, then I will seriously examine how to hold the appropriate individual accountable for his actions in a court of law.”

Since then, Comic Book Hut has gone radio silent. He never released the two follow-up videos he had promised. Was he intimidated by Ernst’s non-specific threat of a lawsuit?

If so, Ernst’s lawsuit threat could be having a “chilling effect” on Hut’s speech, intentional or not, even if there was no actual cause for concern on Hut’s part. Hut was simultaneously acting as a whistleblower and a journalist by breaking this news on his channel, even while seemingly violating journalistic ethics by divulging a source.

In this case, however, Hut promised to produce more videos, and now he isn’t producing more videos. He sounds scared. He also could not be reached for comment, because he has had me blocked on Twitter ever since I revealed Comicsgate.org to the community in 2020, and in any event, said in his video he has closed his direct messages on Twitter.

And I know just what that feels like. Because the same exact thing happened to me. After April 2020, when Preston Poulter applied for the Comicsgate trademark and was threatening to deplatform creators, he warned me on May 6, 2020 after I regrettably cursed him out on Twitter that “You might want to get ready to change your website.”

The implication was clear: After wresting control of the Comicsgate trademark from Antonio Malpica, even though I had purchased the domain and hosting for Comicsgate.org in Nov. 2019, months before Poulter had ever filed an intent to use application of the Comicsgate mark at USPTO, he would come for my website next, an unsettling thought as I set about completing the website, which launched its beta in Dec. 2020.

I sought counsel from an attorney, Scott Houtteman, who now represents Van Sciver and who helped secure the Malpica mark on Van Sciver’s behalf via an assignment recorded in April 2021.

Since then, the plan has vastly expanded. As revealed recently by “Cyberfrog” creator Ethan Van Sciver, I have been developing a crowdfunding platform at Comicsgate.com, the sister website of Comicsgate.org. I can report the alpha build is functional as developers are speedily working toward completion. I consider it a valuable investment in the future of Comicsgate, and I hope creators will place the same faith in it as I did when I began this project. In November, it will be three years since I started all this.

For the most part, I’ve done the recent work on Comicsgate.com quietly. I go on fewer livestreams. I make a lot fewer videos than I used to. Now perhaps a lot of that is simply there is just no time, but in no small part of the reason for that is the stated threat of costly litigation. I’m working on something that somebody else has threatened to take away.

“What if I say the wrong thing?” you wonder. “Maybe this article will be used against me.” as you scrap another draft. You start acting in risk-adverse manners. It’s like doing business with a loaded gun on the table.

It’s called a “chilling effect” by the Supreme Court for a reason.

Just recently, on June 20, I was reminded of this by That Umbrella Guy [Tug], who posted on Twitter that he was now being threatened with a lawsuit over his world-famous coverage of the Johnny Depp-Amber Heard defamation trials.

Of course, Tug is not one to be intimidated. He’ll never stop reporting, I’d wager. But what if he were? Wouldn’t that suck? We need more alternatives to corporate media outlets that push one-sided narratives.

Litigation threats to reporters, content creators and other private individuals on social media routinely occur in this space, and that is a threat to all creators in this space, whether they realize it or not. It’s a part of the culture war.

It is also a practice — threatening lawsuits as a means of silencing critics — that is explicitly condemned by press freedom organizations, such as Reporters Committee for the Freedom of the Press, which writes at ProtectPressFreedom.org: “The threat of legal action targeting journalists, sources, or news outlets is often used as a way to silence reporting.”

Bitch-SLAPPed

It’s called SLAPP, or Strategic Lawsuits Against Public Participation, which work against particularly independent reporters and whistleblowers from otherwise exercising their constitutional rights. It can apply to both lawsuit threats against critics of public governmental institutions or private corporations and individuals. And it is absolutely a danger to not only press freedom, but freedom of speech on social media.

These lawsuits, or threatened lawsuits, are designed to make you shut up.

Again, Hut was going to make more videos — until he didn’t. Now, it is worth noting that New York State, where Hut lives, recently expanded its own anti-SLAPP law protecting journalists in 2020, allowing for suits brought in state court against constitutionally protected speech to be promptly dismissed. In theory, Hut could motion under the law that his videos were constitutionally protected speech and get any case brought against them dismissed.

All told, 31 states have anti-SLAPP laws to varying degrees on the books, and 19 don’t.

However, federal circuit courts are split on whether state anti-SLAPP laws apply in federal suits. As a result, groups as diverse as the American Bar Association and the National Taxpayers Union have recently advocated in favor of a federal anti-SLAPP law.

As Daniel A. Horwitz argues in a June 2020 essay, “The Need for a Federal Anti-SLAPP Law,” many people engage in self-censorship for fear of bullshit SLAPP suits: “Civil litigation is prohibitively expensive for the vast majority of Americans, roughly 40% of whom lack the means to pay even a $400 emergency expense without going into debt. As a consequence, abusive litigants can frequently intimidate critics into silence by threatening or filing baseless SLAPP suits alleging claims like defamation, business disparagement, and any number of other speech-based torts. Understandably, when faced with the prospect of having to spend tens—if not hundreds—of thousands of dollars in legal fees to defend one’s right to speak freely, for many people, agreeing to self-censor in exchange for avoiding or securing the dismissal of a SLAPP suit is an attractive proposition.”

Sound familiar? One can argue that Poulter’s case on the trademark is a SLAPP-style suit designed to silence Comicsgate creators. It’s to hamper Van Sciver down with legal bills when Poulter knows Van Sciver has been using Comicsgate in commerce since July 2018, long before his own April 2020 application. At this moment, Poulter is engaged with Van Sciver in three separate legal venues. All told, Poulter is currently engaged in litigation in no less than four legal venues as a plaintiff. In a fifth he’s being sued by his former attorneys.

It’s all supposed to weigh down Van Sciver’s business.

Suffice to say, having seen just a small bit of these types of suits just in and around Comicsgate, I tend to agree with the need for Congress to intervene to create a consistent framework for these anti-SLAPP laws’ application, and to stop baseless litigation that intimidates journalists and has a chilling effect on speech more broadly. Because of these loopholes, currently, content creators have to beware, as venue shopping is very easy for plaintiffs, who will continue to be emboldened to intimidate potential critics with threats of nonsense litigation until Congress steps in. Because it works.

Robert Romano is the Editor-in-Chief of Comicsgate.org.

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