awate.com v. PFDJ
1. On January 4, 2008, Sophia Tesfamariam, an Eritrean-American who has written many hit pieces against anyone whom she, or the tyrannical Eritrean regime she supports, identify as “enemy of Eritrea”, wrote an article that we consider excessive even by her standards.
2. The article, which was published in americanchroncile.com (in addition to the usual Eritrean-regime-cheerleading websites), accused the founder and publisher of awate.com, Saleh Gadi Johar, of crimes so heinous we will not repeat them here.
3. There are several factors to consider here. (a) This strategy—“when you can’t defeat their ideas, destroy their reputation or their person”–is the stock-and-trade of the Maoist People’s Front for Democracy & Justice (PFDJ), Eritrea’s ruling regime, a tactic which the organization, under various names, practiced for nearly 40 years. (b) Sophia Tesfamariam is a late entrant into Eritrea’s 50 plus-year long political squabble and a mere foot soldier of the Eritrean regime trying to compensate for her late entry by excessive partisanship. (c) Saleh Gadi Johar, an Eritrean-American, is a thorn on the side of the ruling regime primarily because he is the founder and publisher of awate.com.
4. This being the background information, we at awate.com saw Sophia Tesfamariam’s campaign as a proxy campaign waged by the PFDJ against awate.com. So while the official name of the case was “Saleh Johar aka Saleh Gadi, Plaintiff, v. Sophia Tesmariam, Defendant“, to us it was always awate.com v PFDJ. As has happened with previous targets of the PFDJ, Saleh Gadi Johar was supposed to be castigated, ostracized, demoralized and cease his activism and shut down awate.com.
5. We had a choice to ignore the accusations or to fight them. Many Eritreans who are familiar with the practices of the PFDJ saw Sophia Tesfamariam’s excessive attacks, falsehood, fabrication, and defamation in the same manner we did and encouraged us to fight back.
6. Unlike the rest of the world, the United States requires a very high threshold when it comes to proving “libel”— defined as “malicious, false and defamatory writing or image.” This is because the US has very high regard for freedom of expression (the First Amendment in its constitution) and fears that anything done to curtail freedom of speech will negatively affect the political rights of Americans.
7. Libel is the only tort law where the burden is reversed. That is: Saleh Gadi Johar had to prove that the accusation was false; no matter how outrageous the accusation, Sophia/PFDJ did not have to prove that the accusation was true.
8. There is a higher burden for “public individuals”: to prove a case of libel, they must also prove that there was malice aforethought in the words of the defamer.
9. Finally, there is the case of jurisdiction. If the slanderer lives in one state, and the victim in another, where should the case be filed? If the case is filed in the victim’s court, the slanderer can argue that the court has no jurisdiction over her; if the case is filed in the slanderer’s jurisdiction, the cost for the victim to file a case will be prohibitive.
10. We were advised by all the attorneys we contacted that (a) the case would be very expensive (there is hardly any attorney who takes libel cases on contingency basis); (b) there was very little chance of prevailing.
11. Despite these odds, Saleh Gadi Johar and awate.com decided to proceed with the case. This is in no small part to the feedback we received from our supporters (including a Paltalk session in late February 2008 and dozens of emails and phone calls.) We engaged our readers and enlisted the support of hundreds of well-wishers who pledged their time, their expertise and their funds (see Appendix 1 below on fundraising.)
12. Despite the near-certain likelihood of not prevailing, there are several reasons for why we pursued the case. One: people like Sophia Tesfamariam and other PFDJ bomb-defusing robots dispatched by the PFDJ MUST know that there is a price to be paid for their reckless defamation. At the end of the day, they should know that the PFDJ will not appear in a court of law on their behalf and once they are deemed a liability, it will dispose of them like cigarette butts. (Or, let them stay stowed in refrigerated mortuaries for months.) Two: since court papers are public documents, we want to show the people how the so-called “fearless tigers and tigresses” act when they actually feel something is really at stake. (Hint: it is exactly the same way that their “Lion of Nakfa” acted when his throne was in danger during the border war with Ethiopia.) Three: We wanted future victims to learn from the case, and adjust their cases accordingly.
13. awate.com organized a defense fund, an advisory committee. To ensure transparency in the amount raised, we asked our friend Tesfaldet Meharenna (asmarino.com) to set up the pledge portal for the fundraising campaign. We held consultation talks on January 25, 2008 with Washington, DC-based attorney Clayborne E. Chavers. Since Sophia Tesfmariam lives in Virginia and Saleh Gadi Johar lives in California, the case could be brought in the US District Court of either jurisdiction. Moreover, the Digital Millenium Copyright Act authorizes people to sue for libel for material that appears in the world wide web (the jurisdiction is anywhere), as was the case with Sophia Tesfamariam’s defamatory article.
14. We informed Mr. Chavers that our defense fund is roughly $32,500. Mr. Chavers was quite blunt: he said that it is customary for libel cases to cost $100,000 and that he is aware of cases that exceeded a $1,000,000. Awate.com informed Mr. Chavers that Saleh Gadi requires nothing from Sophia Tesfamariam other than a public apology and a retraction of her slanderous statement.
15. After a few email exchanges, we engaged his services at $300/hr (his normal rate is $500/hr; he agreed to the discount on the basis of sharing mutual friends). On April 2, 2008, we signed a retainer agreement and, per our agreement, paid a retainer fee of $10,000. We replenished that with another $10,000 upon attorney’s request. (See Appendix 1.)
16. On May 20, 2008, The Chavers Law Firm sent a letter to Sophia Tesfamariam demanding “(1)…a published apology for, and retraction of, certain libelous statements contained in the Article, and (2) to advise you of your liability for such statements.”
17. The Defendant did not respond to the letter. On August 27, 2008, The Chavers Law Firm sent a follow-up letter to Sophia Tesfamariam. “As I have received no response to my previous letter, I am preparing to file a defamation action against you on behalf of my client…” says the letter, “… unless I receive a reply from you within ten business days from your receipt of this correspondence.”
18. Hearing no reply for 7 months, on December 31, 2008, we filed a motion with the Superior Court of California, County of Sacramento, accusing Sophia Tesfamariam of libel.
19. The plaintiff, Saleh Gadi Johar, lives in the Sacramento, California area and the defendant, Sophia Tesfamariam, lives in Reston, Virginia.
20. California, like most American states, exercises a “long-arm statue” to protect its residents: its courts may exercise jurisdiction over out-of-state residents so long as:
(a) there is sufficient contact (in quantity and nature) between the defendant and the state;
(b) it meets a reasonableness test (does not unduly burden the defendant);
(c) “specific personal jurisdiction” is not ruled out. The test for specific personal jurisdiction in cyberspace is: “the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity than an entity conducts over the Internet.”
21. The defendant, Sophia Tesfamariam, argued (swore in an affidavit) that she did not know that Saleh Gadi Johar lived in California.
22. This sworn affidavit was made despite the fact that the “hizbawi mekete” (mob action) that she co-led once made a big deal about how it is registering “victory from Europe to the home of the Awate Team, in San Jose, California.”
23. Her sworn affidavit was also made despite the fact that a cursory search, as well as the “contact us” section of awate.com clearly provides California as the address.
24. In defense of the plaintiff’s claim that her article appeared at a California-based Website (americanchronicle.com), the defendant’s lawyer argued that americanchronicle.com is a “passive” website.
Facts vs Opinion
24. Our libel case was predicated on the basis that the defendant told malicious and defamatory lies because her entire article attempted to give the appearance that it was factual: based on alleged “interviews” she had, the Defendant made accusations of grave crimes allegedly committed by plaintiff on unnamed victims in unnamed places at unnamed times.
25. In her defense, the defendant’s lawyer claimed that she was merely expressing an opinion, which is a right she has as an American.
26. Sophia Tesfamariam’s lawyer argued that the manner of writing she is most associated with—“epithets, fiery rhetoric or hyperbole”—is something that should convince any court that there is no “doubt that the article was opinion.” Therefore, read “in that context—as it must be—the average reader would see the article simply as an opinionated, polemical broadside against a political opponent, rather than a defamatory statement of fact.”
26. Further, argued the defendant’s lawyer, the plaintiff and “his supporters have given as good as they’ve got on the Internet” (without giving an example of the plaintiff having done so) reducing the case to an opinionated chatter between two feuding sides arguing about something that is going on half-way around the world in Eritrea. Therefore, he argued, litigating this was not the business of the California courts.
Private Citizen vs Public Figure
27. As we stated earlier, proving libel cases are hard, and even harder if the victim can be shown to be a “public figure.” The more prominent the public figure, the harder the case to prove.
28. The defendant then found it useful to exaggerate the prominence of the plaintiff by claiming that Saleh Gadi Johar is a public figure who “has been prominent in Africa for decades.” Additionally, because he is a “media figure…[with] ready access to the media and ability to confront critics…”, he is a public figure.
29. The Defendant also argued that the plaintiff also meets the “limited purpose public figure” because he “started what his supporters call a ‘prominent online journal,’ and his supporters credit him with being ‘instrumental in exposing the atrocities and crimes committed by PFDJ…’”
California Court Outcome
30. The Defendant’s motion to quash (under the California anti-SLAPP statue) was granted.
31. The defendant’s lawyer argued that the defamatory article she wrote was an opinion and not a fact—and this is evident to any reader based on the “epithets, fiery rhetoric or hyperbole” writing style she has trademarked.
32. The defendant argued that the Plaintiff is a public figure who has been “prominent in Africa for decades” and, as a public figure, the standard for proving libel is higher.
33. The defendant argued that she had no idea that the Plaintiff lived in California.
34. The so-called tigress relied on the First Amendment, the right of Americans to express opinion freely, a right she does not think Eritreans in Eritrea deserve, a right granted to her by a system of government she maligns non-stop.
35. In 2010, we explored the idea of bringing a case to court in the Defendant’s jurisdiction.
36. By then, almost all of the funds raised for the legal defense were exhausted (see report.) Reporting this in 2009 and 2010 and asking for additional funds from our readers would have tipped our hand to the Defendant, something that would have been tactically counterproductive, specially given that she could counter-sue. Thus, we opted to do our own lawyering and for the Plaintiff to represent himself in Virginia’s Superior Court.
37. More importantly, we did not, as promised, update our readers on money raised for, and money spent by the legal defense fund. Unfortunately, this (temporary secrecy) was the only way to not tip our hand to the Defendant that we had exhausted our options.
38. It has hardly escaped the notice of the followers Eritrea’s politics that the Eritrean Internet has been mercifully spared the “epithets, fiery rhetoric or hyperbole” of Sophia Tesfamariam over the past two years.
39. She has reserved her “epithets, fiery rhetoric or hyperbole” to oral presentations at PFDJ community meetings. However, even that has landed her in hot water with the Jewish community in Canada recently after she made yet another disparaging remark classified as “hate speech” in Canada.
39. Having said this, Sophia Tesfamariam lives in a bubble of self-reinforcement: her fans love the “epithets, fiery rhetoric or hyperbole”, and she, in turn, loves the adulation from her fans, and she may never be able to break this addiction and is likely to come back with more. She will continue to do so as long as her supporters don’t mind subsidizing her vulgarity and raising funds for her legal defense—as they had to do in this case—whenever a victim decides to hold her accountable.
40. Therefore, if you are subjected to her “epithets, fiery rhetoric or hyperbole” bordering on or clearly crossing the slander/libel line; if her articles are published in websites which are not “passive” (one where readers are engaged in commentary to the said article and plot strategies based on her articles); if you can demonstrate that she is sufficiently vested in your jurisdiction; if you have the finances to wage a legal battle in court and, lastly, you are not a public figure, by all means, consider granting her the pleasure of having to explain herself, in a court of law, why what she is doing is exercising her First Amendment rights as an American citizen.
41. Since Sophia Tesfamariam is a mere “stand-in” for the PFDJ, we would recommend the same sort of action against any other PFDJ stand-in: Eritreans who reside in countries where their rights are protected (the libel cases in Europe are more relaxed) should definitely exercise their rights and tell the PFDJ: enough.
42. Finally, to all our supporters who helped us raise the funds, provided legal assistance and research (particularly when we were in our self-representation stage), we thank you from the bottom of our hearts. We, for tactical reasons, delayed disclosing how much money was raised and how it was spent—and you trusted us, and for that we thank you.
43. While there are many people to thank, we want to single out R.H. (his name to be disclosed only with his permission) who donated $2,000 USD to the fund and pledged to sell his house to raise more funds if need be. It was determination like that which propelled us forward when we had moments of doubt.
43. Of course, awate.com would not be awate.com if it pulled punches: as we thank all our supporters, we want to tell some of our “former supporters”—most of whom now populate the EPDP retirement club and spend more time attacking Eritrean opposition than they do the Eritrean regime—that we hope for the day that we have enough resources to return their donations. Over the last 3 years, they have displayed every base behavior we associate with the PFDJ. The money they donated is our only reminder that once upon a time we were fellow-travellers, and we wish to cleanse ourselves of that bad memory.
Funds raised: $33,791 (net of processing fees; net of declines. )
How funds were spent:
Chavers Law Firm, P.C. $20,000 (retainer fee: see attorney’s communication below)
Self-representation: $06,005 *
Federal and state tax
and miscellaneous: $7,786 **
* Self-representation includes travel to Virgina, court filing, and consultation fees.
** awate.com is NOT a 501(c)(3) per IRS designation and its revenues are treated as ordinary income subject to federal and state taxes.