We’ve discussed Billy Mitchell a couple of times here at Techdirt, both times due to his overtly litigious nature, rather than his apparent video game playing prowess. See, Mitchell is rather well known primarily as the record holder for video game scores, including briefly holding the Guinness World Record for a Donkey Kong high score, until he was stripped of it. See, Twin Galaxies, an official tracker of such video game records, determined based on video evidence that Mitchell wasn’t playing an official version of the arcade cabinet of the game. Upon being stripped of his records, Mitchell sued for… defamation. Oh, and he also sued the Cartoon Network over a very clear parody depiction in part inspired by his gregarious personage.
But back to the defamation suit, which Mitchell filed against Twin Galaxies. He recently got the court allow him to proceed to trial after Twin Galaxies brought an anti-SLAPP suit to the court.
In his ruling on Twin Galaxies’ anti-SLAPP motion, Judge Gregory Alarcon ruled that Mitchell is a public figure in the gaming community and that Twin Galaxies was discussing a controversy of public interest to that community. That means Mitchell will have to prove at trial both the falsity of Twin Galaxies’ claims and that the organization acted with “actual malice” in making them.
While the ruling is careful not to “weigh evidence or resolve conflicting factual claims” on that score until the full trial, Judge Alarcon does tip his hand a little as to what evidence he finds potentially compelling. In particular, the judge seems interested in why Twin Galaxies refused to interview a number of witnesses Mitchell put forward to testify to the authenticity of his score performances.
Apparently at issue is that Mitchell wanted a witness, specifically the referee of his Donkey Kong high score, to be interviewed and considered by Twin Galaxies prior to their having negated Mitchell’s high scores. Here’s the problem: that referee has also been banned by Twin Galaxies for cheating in trying to get high scores in an unrelated video game. Still, the court notes that, at this stage, the deference is given to the plaintiff and, in that specific light, Twin Galaxies’ refusal to consider witness testimony is enough to let this proceed.
Mitchell, true to his self-promoting history, is taking a victory lap on all this, as though he’d won a trial. He hasn’t. Instead, he’s opened himself up to discovery.
Even as Mitchell has met his burden of “minimal merit” in the anti-SLAPP motion, Judge Alarcon also writes that Twin Galaxies has “satisfied the low burden to show a reasonable possibility of prevailing in this action” in a separate motion.
The scoreboard has presented evidence to “[support] that its statement does not show actual malice,” the judge writes, and which “supports that Twin Galaxies did not harbor doubt as to the truth of its statement, as its statement was made after Twin Galaxies’ lengthy investigation on the dispute. The testimony of [Twin Galaxies owner and CEO Jace] Hall’s belief that eyewitness evidence was unnecessary may reasonably go in [Twin Galaxies’] favor on this point, undermining [Mitchell]’s claim that [Twin Galaxies] acted with reckless disregard of the truth.”
It’s important to be able to keep two things in your head at once: that Mitchell may well have validly broken the Donkey Kong record as he claims and that Twin Galaxies did not do anything close to reaching the actual malice standard required for a defamation case of a public figure. And, despite Mitchell’s public statements to the contrary, the lawyer for Twin Galaxies doesn’t seem particularly worried.
Mitchell was helped in the anti-SLAPP motion, Tashroudian says, by the fact that “at this early stage the court is bound to accept whatever Mitchell puts forward as true.” That includes a lot of what Tashroudian calls hearsay evidence involving phone calls where Hall allegedly told Mitchell and Twin Galaxies founder Walter Day that he “didn’t care about certain evidence.”
“The court is not allowed to determine the credibility of these statements [at this point] and must accept them as true,” Tashroudian tells Ars. “[At trial] we’ll be able to show that Mitchell is not credible because we have numerous situations of documented falsehoods in his papers. I’m confident that… after all of the evidence has been adduced, and when Billy is deposed and not allowed to hide behind declarations, the truth will come out.”
I have no tea leaves to read, but those are the words of an attorney quite confident in the video evidence his client has to back up its statements. All I’ll say is that Mitchell had damned well better be right that he broke those Donkey Kong records on a legit and standard Donkey Kong machine if he’s really goin to proceed to discovery.