Fri, Apr 16, 5:13 PM

Mr. Halperin,

Thank you for your letter. For ease of reference, I have pasted your latest letter to me and my responses to your letter are in red below. These responses are not exhaustive and do not constitute a waiver of any defenses or arguments that CASE may invoke or make….

1.  CASE still falsely asserts, “David Halperin has a short seller problem of his own.” Halperin has repeatedly stated that he has no connection to short sellers, and no evidence has ever emerged, or exists, to the contrary. Your client stating that Halperin has a short seller “problem” is like saying someone has a drinking problem, a drug problem, or a gambling problem. It is a false, defamatory, actionable statement.

The statement “Dave Halperin has a short seller problem of his own” is not a provably false actionable statement. It is an opinion. The fact that you deny having connections to short sellers is irrelevant here—and note, CASE explicitly says that you don’t have connections to short sellers and does not dispute your statement.  CASE does have the opinion that you are apathetic towards short sellers actions towards for-profit education companies. That you have a short seller problem is CASE’s opinion, one which you can dispute and we can debate whether it rises to a problem. But it is an opinion.
More to this: even if CASE kept the statement that you have short-seller connections, it is not defamatory. Not every false statement is defamatory. The false statement must expose you to contempt or injures you in your business or trade. Thus comments that you have a drinking problem are defamatory because that would hurt you in your business and your reputation. Having connections or problems with short-sellers does not harm your business or hurt your reputation. If you disagree, send me a legal citation that supports your position and CASE will consider it.

2. CASE has modified the section that contains the false assertion that Halperin’s then-organization Campus Progress was “running a million-dollar campaign” targeting for-profit schools — an assertion that has been coupled in the past with innuendo that Campus Progress was funded by short-sellers. But the section remains false and defamatory. In fact, the falsehoods are worse than before.

The section now reads in part, “The organization he headed[16], Campus Progress, was, according to both the Daily Caller and Politico, running multi-million dollar advertisement campaigns targeting for-profit schools that was ‘on the exact same side of the issue as the wealthy short-sellers.’”

This new statement is false and defamatory. The articles referenced, both of which Halperin cited in his original email to Mr. Kandrach, were opinion articles by outside contributors, “political consultant” Natasha Mayer and CREW executive director Melanie Sloan, not Daily Caller or Politico editors or reporters. The Daily Caller and Politico did not make these charges, and it is false and defamatory to say so; it falsely imbues the charges with the credibility of national news reporting operations. Just as it would be false and defamatory to say that, “according to the New York Times, where civil rights protestors outnumber the police and National Guard, the Insurrection Act authorizes the president to employ the military” — when in fact Senator Tom Cotton wrote that in a June 3, 2020, opinion article that was published in the New York Times. Second, as Halperin’s original email indicated, neither opinion article even said, as CASE now writes, that Campus Progress was “running multi-million dollar advertisement campaigns.” Mayer claimed, falsely, that Campus Progress was “running a million-dollar campaign,” while Sloan merely proclaimed, “major ad campaigns require major donors.” So CASE’s revised statement is false as to both the sources cited and the substance claimed.

This is not false and defamatory. It is not clear how this assertion harms your reputation. In an effort to be reasonable, however, we have clarified this sentence.

The revised web page now adds Halperin’s statement, which was already publicly available but CASE previously ignored, that the ad campaign cost $4000. But CASE then adds, “His assertion is dubious. Television advertising rates, even for non-profits, are expensive.” CASE’s apparent lack of information and expertise on such matters does not transform their falsehood into truth. Campus Progress produced the ad in-house, for zero dollars. The total ad buy — for about ten 30-second TV spots shown locally on one cable TV system in Washington DC during “Morning Joe” and “Fox & Friends” — was about $4000. (The rate had nothing to do with Campus Progress being a non-profit.) CASE’s new statement — implying that Halperin did not tell the truth about the cost of the ad buy — is false and defamatory.

This is not false and defamatory. CASE is entitled to its opinion that market rates in the DC area are much higher calling into question your unsupported assertion. CASE has provided your side of the story and CASE disagrees for its own reasons. You are more than welcome to take to your website and explain why CASE is wrong. CASE’s assertion is not false and defamatory.

3. CASE’s reliance on the statements of then-staff members of CREW to support its false charges still omits the essential fact that CREW, during the period that Melanie Sloan was attacking Campus Progress and other critics of for-profit colleges, received funding from a foundation connected to John Sperling, founder of the for-profit University of Phoenix. https://web.archive.org/web/20150206052604/http://crewexposed.com/wp-content/uploads/2014/08/BadEducation.pdf  Any reasonable person reading these statements by CREW staff about Halperin and other critics of for-profit colleges would want to know that CREW might have been influenced by its funding tied to the for-profit college industry. The CREW operation of today, which has a strong reputation for integrity, is not the same one that was taking funding from a foundation tied to John Sperling. To leave out this essential information presents the criticisms of Halperin and others in a false and defamatory manner.

CASE is not aware of any requirement to provide the reader with the identity of who supports the organization CASE relies upon for evidence. Send me a legal citation for the proposition of law you assert exists here and my client will consider it.

4. CASE’s revised web page deletes its false and defamatory statement that Halperin “writes nasty, thinly sourced screeds about for-profit schools in the guise of objective news stories.” But it repeats the statement that Halperin is a “so-called journalist,” retaining the implication that Halperin calls himself a journalist when he does not, as the previous email to Mr. Kandrach stated. CASE also retains its suggestion that there is something improper about Halperin both writing about an issue and engaging in advocacy on that issue, when there is not. CASE’s statements are false and defamatory.

CASE does not see how calling you a journalist is defamatory or even a “so-called” journalist. You describe yourself as an investigative writer, you have published an online book, and you have a website where you write articles. You seem to be creating a paper-thin distinction that likely does not exist. Either way, unless you have case law to the contrary, calling you a “so-called journalist” is not defamatory. In an effort to be reasonable, however, we have removed the “so-called journalist” line.

6. Halperin’s previous email to Mr. Kandrach noted that the CASE web page falsely states that criticisms made by Melanie Sloan, then the executive director of CREW, about Campus Progress – “I find it outrageous and, in fact, unethical” and “blurs the lines between political advocacy and journalism… present [myself] as a journalist writing objective articles, but then churning out vitriolic stories” — were statements about Halperin as an individual. The Sloan statements on their face were regarding Campus Progress, not Halperin specifically.

Oddly, the revised CASE page corrects the second inaccurate quotation attribution, but leaves the first:

“You can’t pretend to be unbiased when you’re actually an advocate,” said Melanie Sloan, a longtime D.C. ethics watchdog, has said about the “dual role”[28] of Halperin. “I find it outrageous and, in fact, unethical.”[29]

Compare that with the actual passage, which is in the above-mentioned opinion article by Natasha Mayer:

For some of Campus Progress’s journalistic targets, the organization’s dual role, which is far less known than its high-profile reporting, can be angering.

“You can’t pretend to be unbiased when you’re actually an advocate,” said Melanie Sloan, the executive director of Citizens and Responsibility and Ethics in Washington (CREW) who found herself in Steiger’s crosshairs upon agreeing to take a job with Davis. “I find it outrageous and, in fact, unethical,” Sloan said.

https://dailycaller.com/2011/01/11/campus-progress-reports-on-for-profit-schools-issue-while-coordinating-with-liberal-coalition-to-push-regs/

The Mayer article indicates Sloan is talking about Campus Progress, not Halperin in particular. The CASE description of Sloan’s statement is false and defamatory.

CASE disagrees that it is defamatory but in an effort to be reasonable, this has been corrected.

7. CASE rewrote the portion of the web page discussing Halperin’s funding, but did not eliminate the false and defamatory nature of that section. The false and defamatory reference in the text to Halperin’s funding being “obscure” has been deleted, but there remains a header to that section entitled, “Obscure Funding.” The page continues to proclaim, “The opaque arrangement is the latest example of the lack of transparency afflicting Halperin.”  As Halperin’s previous email noted, Halperin discloses his donors. He has no such affliction. In obvious contrast, CASE still does not state on the [.       ] website who has funded its work on this website.

This is not defamatory. It is opinion. As you well know, donor disclosure is a publicly debated issue. CASE complies with the law concerning its disclosure obligations. But you have advocated for more transparency. This section just demands that you practice what you preach and on your website inform the public how much TICAS is paying you. Because your website does not disclose this information, your funding is obscure. You can disagree but CASE is entitled to its opinion that your funding is obscure.

8. The revised page still falsely implies that Department of Education officials did something improper “carr[ying] out a planned leak” of new proposed government regulations.

This is a quote from a letter from CREW’s chief counsel to Arne Duncan. Have you threatened CREW with defamation? What was CREW’s response? If CREW retracted its assertion to Arne Duncan, please send it to me and my client will consider it.
Either way, apparently the Inspector General for the Department of Education and the Department of Justice thought the early release of documents may have exposed some people to potential ethics violations and federal conflict of interest violations. Investigations into this planned leak lasted years, including inquiries from legislators. Some people are of the opinion, including CASE, that what these officials did was a bad thing.

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Dear Mr. Sheehy,

Thank you for responding to my communications with your email.

CASE’s third published version of a webpage about me, like the first two, contains statements that are false and defamatory, that are harmful to my reputation and ability to earn a living.

Without conceding any other claim, I will point to one section that is particularly actionable. This is it:

David Halperin has a short seller problem of his own.

In January 2011, at the height of concern about short-sellers influencing the Obama administration’s crackdown on for-profit colleges, a news website raised questions about Halperin’s possible involvement.[15]

According to articles authored by Natasha Mayer, a political consultant, and Melanie Sloan, director of CREW, and published in the Daily Caller and Politico, Campus Progress, which was run by Halperin,[16] was running a multi-million dollar advertisement campaigns targeting for-profit schools that was “on the exact same side of the issue as the wealthy short-sellers.”[17]

Mr. Halperin disputes this, stating that he only paid $4,000 for the television ads. His assertion is dubious. Television advertising rates, even for non-profits, are expensive. Either way, Campus Progress’s television campaign led the Daily Caller to ask whether Campus Progress was “doing the short-sellers’ dirty work.”[18]

Halperin has denied any contact with “those Wall Street short-sellers.”[19] But, at the very least, his statements indicate that he has no issues with investors shorting for-profit education stocks—or lobbying government to take action.[20] “Nor are we concerned,” he added, “…that government officials have accepted Eisman’s offers to receive information from him on the for-profit education industry.”[21]

1. CASE continues to publish the false statement, “David Halperin has a short seller problem.”

You assert in your email to me, “Not every false statement is defamatory. The false statement must expose you to contempt or injures you in your business or trade. Thus comments that you have a drinking problem are defamatory because that would hurt you in your business and your reputation. Having connections or problems with short-sellers does not harm your business or hurt your reputation.”

Your statement ignores an obvious point: that a central premise of CASE’s website is that short sellers of for-profit college stocks have engaged in unsavory behavior. CASE’s page on Robert Shireman on the same [       ] website refers to short seller Steven Eisman as “notorious,” says Eisman had an “ethical conflict” and “a financial incentive to trash the non-profit sector he was shorting at the time of his testimony,” and says Eisman and other short sellers were “trying to manipulate the federal regulatory process for personal financial gain.” So, reading CASE’s website, your client saying that I have “a short seller problem” suggests I am associating with business entities that are unethical and unsavory. Moreover, your client’s words suggest that I am corrupt: that I have taken actions or written words not because I believe that those things will advance the public interest, or to aid students and taxpayers, but because someone with a financial interest in the policy outcomes paid me or otherwise influenced me to do those things. That, clearly, is the short seller “problem” that CASE’s website asserts, and it is entirely false and defamatory.

Such false allegations are defamatory and harmful to me as an attorney, consultant, and public interest advocate because they can damage things including, but not limited to: my reputation; my credibility and ability to work with organizations, businesses, and individuals; my credibility and ability to work with government officials; my ability to obtain clients; my ability to obtain financial support from charitable foundations; and my ability to earn a living.

In the context of CASE’s allegations about short sellers, CASE’s false statement that I have a “short seller problem,” is an allegation of a fact (not opinion) just as surely as if CASE had claimed that I have a drug problem or a gambling problem.

2. CASE continues to publish these false statements: “According to articles authored by Natasha Mayer, a political consultant, and Melanie Sloan, director of CREW, and published in the Daily Caller and Politico, Campus Progress, which was run by Halperin,[16] was running a multi-million dollar advertisement campaigns targeting for-profit schools that was ‘on the exact same side of the issue as the wealthy short-sellers.'[17]  Mr. Halperin disputes this, stating that he only paid $4,000 for the television ads. His assertion is dubious. Television advertising rates, even for non-profits, are expensive. Either way, Campus Progress’s television campaign led the Daily Caller to ask whether Campus Progress was “doing the short-sellers’ dirty work.”[18]

In fact, the falsity of your client’s false statement goes beyond the Mayer and Sloan statements, because CASE claims Campus Progress ran a “multi-million dollar” campaign, when Mayer only invented (and Sloan linked to) the allegation of a “million dollar campaign.” I can tell you that Campus Progress’s entire budget in 2011 was less than $2 million, so we could not have run a multi-million dollar campaign or even a million dollar campaign on this issue. The assertion of a million dollar campaign is also false. There is no evidence for it. I pointed you to my previous public denial of this false charge at https://www.republicreport.org/2014/daily-caller-rabid-defender-for-profit-colleges-attacks-school-tied-clintons/ . Here’s another one, from 2011: https://genprogress.org/press-listings/campus-progress-responds-to-false-allegations-of-connection-to-shorts/. I also provided you in my previous email with specific details about the production of the ad and the ad buy, explaining why the campaign cost about $4000.

CASE’s published response, “His assertion is dubious,” constitutes CASE asserting that I am lying to conceal the actual amount Campus Progress spent. This false assertion that I am lying about this matter is defamatory; it can harm my reputation and my ability to be effective and earn a living as an advocate and lawyer.

Moreover, the implication of the multi-million or million dollar campaign claim, made by Mayer and Sloan and repeated and made worse by CASE, is that Campus Progress had a large amount of money to spend on the for-profit college issue, and that that money came from people shorting for-profit college stocks. The implication is underscored when your client repeats in the same paragraph Mayer’s false accusation that Campus Progress was “doing the short-sellers’ dirty work.”

Those statements by your client suggest, again, that I am corrupt: that I have taken actions or written words not because I believe that will advance the public interest or to aid students and taxpayers but because someone with a financial interest in the policy outcomes paid me or otherwise influenced me to do those things. The statements further suggest that I am now lying about the amount spent on the advertising campaign in order to conceal this corruption.  Such false allegations are defamatory and harmful to me as an attorney, consultant, and public interest advocate because they can damage things including, but not limited to: my reputation; my credibility and ability to work with organizations, businesses, and individuals; my credibility and ability to work with government officials; my ability to obtain clients; my ability to obtain financial support from charitable foundations; and my ability to earn a living.

CASE also falsely implies that my denial of connections to short sellers is hedged, or made with intent to deceive, quoting an interview I did with Corporate Crime Reporter. CASE writes, “Halperin has denied any contact with ‘those Wall Street short-sellers.’” I did use the word “those” in that interview, but in public statements and statements to you I have made clear that I have no connections to any short sellers.

The bottom line is that neither I, nor Campus Progress, had or have any connection to short sellers of for-profit college stocks, and short sellers of for-profit college stocks have never provided funding to Campus Progress or me. CASE has no evidence to the contrary, yet CASE now has published these false statements on three successive versions of its website. CASE’s false claims question my integrity and honesty, and can harm my reputation and ability to earn a living.  The entire passage from CASE that I quoted at the beginning of this message is false and defamatory, and I again demand that your client delete it, along with the rest of its web page at https:[    ] david-halperin-republic-report/

Also, the homepage of [        ] still repeats the false statement that, as your previous email to me explained, CASE corrected elsewhere after I complained: “According to CREW: David Halperin ‘blurs the lines between political advocacy and journalism… present [myself] as a journalist writing objective articles, but then churning out vitriolic stories.’” As you know, CREW’s Melanie Sloan made that statement about Campus Progress, not about me. It is false and defamatory to state that Sloan said it about me. (By the way, attributing the quote to “CREW” is also highly misleading, because the words were written 10 years ago, by a CREW leader who no longer works there, and at a time when CREW was receiving funding tied to the for-profit college industry; it’s not the same CREW that is widely respected today.) In addition to my demands above, and in my prior emails, and reserving all other claims against you, I demand that you delete that false statement also.

I stated in my previous email to you that “my next response will also include a demand for monetary damages.” In addition to deleting the entire page at https:[     ]david-halperin-republic-report/ and the sentence on [    ], referencing me, that I note just above, I ask that CASE make a donation of $5,000.00 to the UNCF, a gift that will help provide college scholarships for students of color. (For your convenience, here is the link: https://secure2.convio.net/uncf/site/SPageNavigator/2016Donate.html.) I make this demand while reserving all rights to seek additional and greater monetary damages if this matter is not resolved to my satisfaction.

/s/ David Halperin

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April 20, 2021, 12:00 PM

From: Shawn Sheehy
To: David Halperin