Thread by @WhippleMarc

Okay we're about to go live with tonight's exciting episode of the Nicky Mouse Club. Please stand by.

#Threadnought

Hooking up my laptop fan stand because it's about to get HEATED all up in here!

Chat participant: Nick's pronouns are late/late.

Heh.

AND WE'RE LIVE!

Nick: Oh, boy. Oh, BOY. It has been a couple of days.

Nick, you have never been righter.

Nick's been busy. And he doesn't mean to complain. Which surprises no one. Nick doesn't know HOW to complain. It is known.

Nick is told that a filing is coming. Soon. Maybe very soon. Nick's no expert, he admits. He's humble like that. So he's not going to talk procedure. *whew*

He's going to bring us the Straight Dope, of course. The public... the WORLD... demands it. But he's going to talk to top men. TOP. MEN. That Dope will be Straight.

But what we're going to talk about tonight is the appellate arguments. Which are de novo. Blank slate. New ball game. It's like a rehearing, but different.

Word counts are limited. Precision is key. You can't just randomly insult disabled persons in your appeals briefs. Unlike on, say, your livestreams.

We're going to go back through the opinion - as much of a JOKE as it was - and then we're going to cross reference appeals possibilities with filings. Because you can't add to the record. (Aside: 💯)

Whiskey must be prepared. Please stand by.

As the approach to an appeals court is different than the approach to a trial court, so too will Nick's approach to discussing them differ. It's deep, you dig? DEEP.

Nick points out that you have to respect the court in your appeal while pointing out why they were wrong. And try to respect your opponents. Nick doesn't think that'll last. The other side, they're not respectful. They're disrespecters. It is known.

The appeals court disregards posturing and nonsense. Of course so are trial courts supposed to. But did Judge Chupp disregard it? No, Nick doesn't think so. But the appeals judges, they may.

*random insult of Marchi, Judge Chupp*

The judge's job is to apply the facts to the law. (Aside. Or something like that.) Not to heal the anime community. Maybe it should be, but it's not.

Oooh, I got mentioned! Not by name. My name is not worthy of Nick's mouth. I don't dispute it. But it's an honor just to be nominated.

Anyway, the win condition is very different for Vic than for the defts, Nick points out sagely. (Aside: It sure is. Vic has to actually prove something. Defendants don't have to prove anything. Ace legal analysis, Nick.)

Nick believes the word count limit for an appeal is 20K words. And that's not a lot. Not a lot at all. Especially for people who file 1300 page filings, but be that as it may.

Nick has thoughts. A lot of thoughts. Weeks worth of thoughts. This stream will reflect them. And not Ty's thoughts. Nick doesn't ask permission. Nick doesn't get approval. Nick answers to no man.

Nick's thoughtstream was so powerful, so intricate, that it carried him past his point. This is the risk of having an intellect this powerful. Please stand by.

Superchat: Vic announces he will appear at a con in AL! Viewer wants to support Vic but doesn't like travel. Nick encourages them to broaden their horizons.

Superchat: Apparently KickVic is in "full meltdown." (Aside: Wut?) Anyway, ha ha!

Back to win conditions. They pain Nick. They hurt him in his soul. Because people don't understand. THEY DON'T.

Ty was a bit clumsy last time when he said all that about "having already won," and "the lawsuit is almost not important." It's important. It's meritorious. You don't bring lawsuits that aren't meritorious. Well-known fact. The idea is to make people whole. People who have HURT.

In a way, the lawsuit is MORE important for the defendants than Vic. Except in the way that it isn't. It's complex. Even Nick, Master of Rhetoric, is struggling to explain that.

Vic's reputation. It's what matters. It's been hurt. The lawsuit is one way to address this pain. Public opinion is another. Vic, he's staying back. He's trying to encourage healing. That's the kind of man he is. Except the whole, you know, suing everybody.

And Nick is willing to admit that Vic is far from perfect. He has, for example, pants that lend themselves to homophobic jokes so well that even Nick, the Goldenhearted, can't resist making them.

A long stream of ranting about how Vic's actions are only problematic to dog-murdering types, and how if people couldn't proposition people for sex the HUMAN RACE would go extinct. Is that what you want, KickVic? IS IT?

It is. It's self-evident.

There will never be a lawsuit that says hugs are bad, says Nick. (Aside: o rly?)

To Funimation, this story is about jellybeans, consensual kisses, and twin booty, says Nick. And not a man draws breath who walks away from hot 'n ready twins, he observes. IT'S IN AUSTIN POWERS, PEOPLE. CASE. CLOSED.

Anyway, that's it. That's all they had. And they have not changed their tune. They have not responded. They have not exhibited THE SLIGHTEST REMORSE FOR TRYING TO DENY TWIN BOOTY IS A THING.

*random Monica Rial insult*

something something affidavits shot of whiskey something

If you're going to investigate danger in the workplace you should INVESTIGATE THE COMPLAINANT TOO says Nick, Master of Human Resources Law.

(Aside: Oh, God, he's really doing the "she was complaining she got harassed because she got turned down" thing, this is so, so, so pathetic.)

ANYway, anybody who wants to can learn the story of this "investigation." Including all the changes in Monica's story. Material changes. And witnesses who denied it. And how she claimed Vic yanked her hair like a caveman every time he was in arm's reach of her for a decade.

And Jamie? Don't get Nick started on her. Friendly hugs. All the time. She needed her some Vic-hugs. Constantly. Like heroin. But let somebody TOUCH SOMEBODY'S HAIR, and it's the end of days. What a hypocrite. Nick, he's disgusted. And Nick doesn't disgust easy.

Nick's computer is acting up. Probably from hackers. But he's on it. Never fear. They shall not prevail.

Superchat: *random insult of me and my wife*

Funimation has SAID IN THEIR AFFIDAVITS that it was not their intention to say whatever it is Nick's on about, frankly, he's drifting a bit. I told you he had a lot of thoughts.

All Funimation had to do to win was produce the paper that said Vic did what they say he did, and THEY. WOULDN'T. DO. IT.

(Aside: Nick is POUNDING on this, and frankly, it's not even wrong. Nick. Does. Not. Understand. Human. Resources. Law.)

Why didn't it come out? THINK ABOUT IT. It's obvious. So obvious. So very, very obvious. That Nick can't bring himself to say it. It's that obvious.

All RON had to do to win was produce HUNDREDS OF WOMEN to back up his story. And did he? No. Of course not. Just his laughable trio of jealous and bitter hags. Pfft. Nick is unimpressed.

(Aside: Nick just did a "suave" voice and guys, I have never been closer to just clicking that X. I do it for you. Send money.)

Nick wants you to know, you hypocrites who work with these "fine, upstanding ladies," that YOU ARE NEXT. They will get you too. The moment they can. That's how they roll. Over YOU. So put on your Good Boy Pants. Though Nick knows you have a hard time with pants. Oh, he knows.

Anyway, enjoy the world you are building, you... bad world-builders.

Vic wins, to return to our muttons, by proving the defendants said things that couldn't be true. And that's important. That's an important win. But it's not VICTORY. (Get it?)

Because does the money REALLY undo the damage? Maybe. Depends on how much. But in the long run? What does it profit a man if he gaineth some middling damage awards but loseth his soul? NOTHING. That's what.

But getting the WORD out. Getting people to buy tickets to cons and hear Vic say, "I DIDN'T DO THAT?" THAT is the win condition. And how lawyers can't see that, Nick doesn't know. It's shameful. It's embarrassing. You're bad, and you should feel bad.

Nick hopes that now the record on Public Figure is fixed, Vic will speak up. (Aside: I sure hope Nick is telling the truth about not advising Vic.) Come out publicly and defend himself. Expose the wreckers. Hang some traitors.

something Superchats something knives something I got distracted, sorry

Nick wants to sell knives to Vic supporters and put the proceeds in the GFM, which is against some silly rule, but Nick's going to show them to us, not that he's trying to sell them or anything (Aside: WHee, I love knives!)

First: A lovely little handmade fixed-blade skinning knife. Looks quite well-made.

Second: same sort but larger. Handle looks a bit slick but again, craftsmanship looks good.

Last knife is a fantasy Bowie-style knife, sharp on the back edge. Not practical, but yet again it looks well put together. Nice wooden scabbard with brass rivet work and leather accent straps.

(Aside: Nick says they are "Klingon" style knives. Um, what?)

Nick, Master of Weapons Law, says he'll check the laws of any state where he might be asked to send the knives, so never fear. (Aside: … nope. Not doing it.)

Superchat: If Vic loses the appeal, won't that just open the door to everybody slandering Vic?

Nick: They're already doing that, that's why we're in court. But you can't sue everybody all the time. (Aside: Fair.)

Superchat: Have you ever listened to Vic's music?

Nick: No, except the one time he groped and restrained me in his hotel room and made me listen to it. (Aside: it's even worse than that makes it sound.)

Once again, ne'er-do-wells and scoundrels are causing technical difficulties. Please stand by.

And the Order granting the motions to dismiss is up. That's where we're going next. Prepare yourselves.

A brief tangent about why The Mug got taken down from Nick's merch site. Ironically, it has to do with the artist describing the mug in a way that got it autoflagged for IP issues. It'll be back, if you didn't get one. (Yay?)

Even Nick, Master of IP Law, couldn't have anticipated this, so everybody just chill. It'll be back. Demand will be met. And Nick, he will have his revenge. Nobody plays the slippery eel like Nick, you'll see.

Back to the order. Nick already explained it as well as anyone literally could, so he doesn't want to go over it in detail. So we'll hit the high points. Such as they are.

Nick wants to make clear that when he says "problem for Chupp," he just means the legal opinion. Nothing's actually going to happen to the judge. Much as he might deserve it.

The judge couldn't dismiss the TI count if Slatosch's affidavit is admitted. He can't. Can't do it. The stars would fall from their courses. But somehow, it got dismissed. Everybody needs to watch for falling stars, is my observation

Judge Chupp has, throughout the case, just avoided making rulings. (Aside: I'm not even a litigator and that one made me roll my eyes.) And if there's no ruling how can Ty object? Nick's at a loss. He's lost. The judge has marooned him, metaphorically. (Aside: Ow, my eyes.)

And that silly Rule 11 agreement? It can't interfere with JUSTICE. That's not what agreements do. They can't. JUSTICE MUST PREVAIL. But we'll read it anyway. Just to show how ridiculous this whole business is.

Reading the silly agreement. Please stand by.

Does the agreement mention "evidence?" No it does not. Does it mention amended pleadings? No it does not. So should the judge have admitted the HellFiling ,the affidavits, Ty's parking validation? I think you know the answer.

As he has noted before, Nick points out that Judge Chupp is a sloppy legal writer. (Aside: Yeah.)

And that law review article? MEANINGLESS. Inapplicable. Nonbinding. The authors were unserious people. Using it to outright VIOLATE the TRCP? A TRAVESTY.

And without that law review article? THE WHOLE ORDER SINKS INTO THE MORASS FROM WHICH IT SPRANG. Because the rules are clear. So, so clear. Clear like crystal. Crystal from the heart of a star. They're that clear.

So why did the judge rule that way? He's a coward, opines Nick, Master of Legal Psychology. Or he would, if he were not so charitable. Which he is. So he takes it back.

Anyway, this TRCP nonsense? Law review articles? Rule 11 Agreements? All cover. Cover for... error. Reversible error. And unwillingness to rule. Which is obvious, did Nick mention that?

Nick is told that Vic is appealing all 17 counts, but he is not told whether the evidentiary standards are going to be appealed, or whether the TCPA even applies.which probably doesn't make sense to you lesser beings, but it's an open question. Vic's team. They'll decide.

Nick, charitable person that he is, finds an element of the ruling which is, well, it's okay. Probably. Not worth devoting his prodigious analytical ability to, anyway. On we go.

Nick is going to cover the appeals filings, by the way. All of you who think he's afraid? WRONG. SO WRONG. *random misogynistic insults* He'll do it. But not because you want him to. Because he can.

Nick, by the way, is willing to concede that the TCPA may apply in this case. Not that it's a winning argument. But that raising it as a defense may not be TOTALLY LUDICROUS. You can't ask for more evenhanded analysis than that. You can't.

something the Judge cited a big chunk of the petition to make it look like he was paying attention something I got distracted again

The judge decided Vic was a public figure because the courtroom was full of lookie-loos, which is NOT HOW YOU DECIDE THAT, Nick points out. Lane v. Phares? Distinguishable. Is anybody named Lane in this case? Is anybody named Phares? YOU TELL NICK.

(Aside: I am now recalling fondly the delightful moments I spent finishing and filing my income taxes a few short hours ago.)

The court found that Vic didn't establish his prima facie case by clear and specific evidence, and this is where we must really begin, says Nick, Master of Appellate Strategy.

Nick is pulling up the elements. Not that he needs to, but he is prudent like that. A lot of people nitpick, you know. This is the curse of great thinkers. Please stand by.

Nick is going to go through the elements as if VIC WERE A PUBLIC FIGURE. He's steelmanning. Straw men are beneath Nick. But you knew that.

Nick points out, quite correctly, that you can't defame someone by saying things *to them.* Somebody ELSE has to hear it.

Nick will now discuss Actual Malice and I think I feel my soul trying to escape my body from sheer excitement. (Or something.)

Remember, it has to be LEGALLY defamatory, if you want to legally sue somebody legally in a court of legal law. As opposed to whatever other kind of defamatory there is. Courts don't care about that kind.

And now over to the First Amended Petition, on the off chance that the court is right that the Second Amended Petition is, you know, ludicrously inadmissible.

And now, analysis of Funimation's tweets about disengaging from Vic. Please stand by.

Those tweets are a statement, all right. A statement they are.

And the presence, the MERE PRESENCE, of this tweet in the record, gives the lie to all of the judge's equivocation and dissembling. CASE. CLOSED.

Now, was it Actual Malice? Well, the company that MADE the tweets had the report. And if the report says that Vic didn't do what he was accused of, well, then, they knew. Oh, they knew. And if they knew? ACTUAL MALICE. (Aside: There's a... problem... with that.)

Funimation is flat-out saying that their statements don't say what literal random people on the Internet say they said. If you can believe such a thing. I know it's hard. Do your best. That's all Nick asks.

If the *gist* of what is *not* in the statement makes Vic look bad, well, then, I think we all know where that goes. You know it. I know it. Nick knows it. And Nick knows we know it..

And, Nick graciously concedes, it might LOOK like a problem that there's no actual evidence that Marchi defamed Vic in this pleading, but that's just what it LOOKS like. Because she put it in HER filing. Like a CHUMP.

Now we're looking through Vic's deposition from Johnson because even Nick can't remember EVERYTHING. Or at least he has the modesty to pretend so the rest of us won't feel bad.

*random physical insult of Marchi*

Does the Tweet of Shame cast Vic in a negative light? OBVIOUSLY. So is it therefore defamatory? YOU BETCHA. (Aside: think you left out a step or two there, Nick.)

something something Van Der Linden he said she said something I'm struggling here, people, I really am, truly he has a dizzying intellect, I'm dizzy anyway

If a jury sees Marchi's crocodile tears and is swayed, that's one thing, but that's a different question, points out Nick. Juries are stupid.

*random insult about special needs people and Judge Chupp*

(Garbage. Human. Being.)

Mocking defendant's 517 page filing, because who files giant filings full of trash? Who does that, Nick wonders? What does that tell you about the strength of their actual CASE? What, indeed?

Rial's ludicrous assertion that she didn't mean to call Vic "the legal definition of harassment" should likewise be a question for the jury, claims Nick, Master of Twittorial Analysis.

Recap of Rial's story about the hotel room. Not really grooving on Nick reading a story about sexual assault, but that's just me. In any event, Nick points out, it's FILLED WITH INCONSISTENCIES. Chock full o'inconsistencies, really.

It's so full of inconsistencies that Nick is having a hard time finding them. Please stand by.

Still looking. Chat is amusing itself. As chats do.

Nick just wants to find the actual point in the document. Even though it doesn't really matter because the tweet is in the interrogatories and Bob's your uncle, DEFAMATION. But Nick, he is a stickler.

Still looking for Monica's "stupid story." This is rapidly departing from sticklerdom, and nigh approaches madness. THE MADNESS OF TRUTH.

FOUND IT! In your FACE, doubters, wreckers and kulaks! Now we will read it carefully. Please stand by.

Okay "read it carefully" may have been optimistic. And again, Nick reading a sexual assault story. THROW MONEY.

Monica was worried about her FRIENDSHIP with Vic. Who worries about friendship with someone who ASSAULTED them? Nobody, that's who. So the only logical conclusion? LIES. (Aside: I'm sorry I had to relay this, but he really is implying it.)

*mockery of sexual assault victim*

(You know what I think of that.)

something something no patios OBVIOUS LIES yeah yeah whatever something

Anyway, is there clear and specific evidence against Rial? Well, were you not paying ATTENTION as Nick led you through this twisting path of truth? If you were, you know the answer.

Chat: The lawyers should have asked if these alleged assault victims went to therapy, and if they'd already been in therapy, and I haven't wanted the ability to slap someone through the Internet so badly for days and days.

Last but not least, well, okay, maybe least, Nick isn't saying, Ron Toye.

something something defamation by implication this is so incredibly tedious something

All of these unspecific opinions obviously support a prima facie case and since Toye can't show it *wasn't* about Vic, well, again, I think we all know what that means.

Somebody just asked for a Lemoine/Rekieta fanfic in chat and I better have some money in my Ko-Fi, scorch it and sear it, I'm going to need medication.

So anyway, Monica's story, it's inconsistent, she's obviously covering up something, Ron talking about it is just him talking his book, it's all about Vic, it's in the record, Ron said he was sure Vic assaulted 4 people, how can you ignore that? You can't. Unless you're a COWARD.

And the prima facie case? It's THERE. It's IN THE RECORD. The appeals court, they will have to acknowledge it.

Now, is Plaintiff's response to the TCPA motion the BEST FILING EVER? No. Nick's not afraid to say it. It's not the best EVER. It has issues.

But is the EVIDENCE THERE? Have you NOT BEEN PAYING ATTENTION? It is THERE. It is SO THERE. RIGHT HERE SEE WHERE NICK'S POINTING DON'T YOU SEE IT WHAT ARE YOU, BLIND?

So if that appeal is well-drafted *no pause for laughter though there probably should have been* it's a slam-dunk. It just is. The evidence is there.

Now could the appeals court find that the prima facie case for actual malice was not met? They could. If they are that cowardly. If they are DETERMINED to stretch the law nigh to breaking. It's possible.

And the appeals court could just say "NO." They could. And then the TXSC? They have discretion. If the appeals court just ghosts and says "no," like Chupp, did Nick mention he's a coward, there may not be anything there to interest them.

Nick's running out of steam. This is hard on him. He gives and he gives. And he has to be ready to discuss Meyer v. Waid. It could happen any time. So. Superchats.

But by the way, that bald dummy claiming Ty would be filing too early if he appeals before the sanctions ruling?

The rules say that that just means the appeal is effective WHEN THE CLOCK ACTUALLY STARTS, says Nick, Master of Texas Appellate Procedure.

So Ty could file RIGHT NOW. TODAY. And on the OFF CHANCE that those chuckleheads citing, you know, the rules of appellate procedure and the law and stuff, are right, all that happens is that the clerk of the appeals court puts the appeal in a shiny box and holds it carefully.

Then, the second the appeals period actually starts, they reverently remove it from the shiny box and enter it with vigor and certainty. So it's actually PRUDENT to file early. So there.

*random fake Marchi comment*

Superchatter: I was at a con once and I saw Monica practically throwing herself at Vic, we all know where this is really coming from. Nick: Who do you believe anymore? That's the question. The eternal question. But I know who I don't believe. Oh yes, I know.

Nick says that the framing for the appeal should be that if the defendants get away with this, defamation is dead in Texas. DEAD. VANISHED. KAPUT. Maybe the appeals court is okay with that, Nick warns. If they are, we can't win. But if they aren't. WE WIN.

People can disagree with Vic, Nick says, but if you think the ruling was anything but amateur hour, you're lying. It was bad. Objectively bad. Even if his conclusions were RIGHT, he got there the wrong way. Turrible. Just turrible.

Someone asks about intern-chan doing something. Nick says he'll ask her about it.

Superchatter: Do you think Vic would do the audiobook of my 1/3 finished novel?

Nick: He'd consider any professional gig but you need to finish the book and put a proposal together before you approach anybody. (Aside: Right answer.)

Superchatter mentions me again. I'm FAMOUS! Famous for being a "low-T stooge," but hey, I'll take what I can get.

Superchatter: Isn't the TCPA unconstitutional? Nick: Probably but the TXSC doesn't care, apparently.

Nick says that his life is better without Twitter. I believe that. I really do.

*random Lemoine disability insult*

And that's the stream for tonight. I hope you enjoyed it as much as I didn…. wait. Hold on. There may be more.

… outro playing. I don't know if that's legally binding, because Nick has a question he wants to answer.

Question: If this is overruled on appeal doesn't that mean THE TCPA IS DEAD? Nick: No, courts will always weasel around and avoid things. Courts just always get this wrong. Not like Ty and Nick. They get it.

*last-minute victim blaming reference*

Nick: None of this makes sense. These people are irrational. They just are. How can a man of reason deal with this? It's hard. It's so hard.

And that's a wrap.

And off to read the comments. Why? Because it's like he said. I'm irrational. It's a fair cop.

Part of why this made me roll my eyes should be obvious to anyone. But if you don't get the legal joke, it's that judges are SUPPOSED to not make rulings without reasons. Nick may feel the judge didn't make rulings he had a good reason to make. But that phrasing is just... wrong.