New First Amendment Clause - The Right To Libel For Profit?
Rocker Partners got a lot of press a few months ago when they issued forth a press release indicating that their virtue had been assaulted, and that they intended to counter sue everyone and anyone that had ever said anything nasty about them - your's truly included. I have written about this, and changed my online moniker to The Easter Bunny in tribute to this important turn of events.
So it came as a surprise when today, Rocker Partners and Gradient filed their expected motion to dismiss (obligatory, really), and I got a chance to see, filtered through Ms. Remond's expert gaze, how they chose to respond.
There was no demand to overturn the suit on the basis of the charges being baseless. No affirmative defense indicating that they "din't do it." Instead, they don't deny any of it, but rather take the, IMO, arrogant position that their right to spread false and misleading information (if the charges are true) and profit by it is actually what the American Revolution was all about - that their God-given right to collude with disparate parties in order to make money (at the expense of long shareholders) is actually protected under the Constitution's First Amendment - our cherished Freedom Of Speech.
Why is this so surprising? Well, for starters Rocker sued a message board poster for making snide comments about him on Yahoo (the case was laughed out of court) - apparently his appreciation of Constitutional law has experienced an unexpected Renaissance now that he is under the microscope - and further has indicated that he intends to "counter sue" me for essentially the same thing. And yet, tut tut, apparently we are not cloaked in the protective mantle of God, Country and Grandma's Apple Pie that the First Amendment offers up. No, if we had been making untold millions by scheming to engineer price drops in stocks we were short, colluding with disparate entities in a manner eerily akin to what some have called racketeering (I take no position on these allegations, giving all parties the benefit of the doubt, and taking a neutral stance on the charges' merits until a court of law and jury has weighed in), then ostensibly we would have been celebrating our Freedom of Speech. But if we are critical of these folks' shenanigans in the financial markets, then we are fair game for the gunslinging attorneys from NJ and whatever muscle they can muster.
Who knew that is what the Constitution meant - Separation of Church and State, Right to Assembly, Freedom to Worship, and, oh, Freedom to Frontrun Research Reports Written and Edited to Destroy Stock Prices..
Let's just say that I expected something a bit meatier. Something that roundly declared that the defendants didn't do the things that the OSTK suit said they did - not that pretty much admits that they did, but then seeks to excuse it with a free speech defense.
Where are the Seths of the world now, who were saying that there was no merit to any of this as it was all a fabrication of Byrne's fevered imagination? Wasn't Barrons banging the "it's all in wacky Patrick's head" drum recently? Along with the WSJ? Guess what? Apparently it isn't - but if Gradient and Rocker are to be believed, it is now merely their artful celebration of the American way.
Apparently the defendants aren't disputing that they did what the suit claims they did. I can't find any evidence of that. No, they are taking the position that it is OK to do it, on account of our forefathers and such.
Best of luck with that in front of a jury of postal workers and auto mechanics and retirees and veterans. I'm sure they will be excited to hear that they fought in wars to protect Wall Street's right to denigrate stocks they are short. Hell, I'm feeling patriotic just thinking about it.
I may have to fly in just to hear the opening arguments. I'll bring a little flag. Maybe sing the national anthem..."By The Hedge Fund's Mad Glare...Ashtrays Whizzing Through Air..."
Perhaps little ribbons or plastic bracelets can help support the Wall Street "Freedom Fighters" protect our rights in their own special way. I have to stop now - I'm choking up...
Am I the only one scratching my head when I read Carol's piece, thinking "that's the best they could come up with?"