"Roman Candle" turns 20: Secrets of Elliott Smith's accidental masterpiece (slideshow)
Elliott and the friends with whom he recorded in middle school in Texas (photo courtesy of Dan Pickering)
Topics: Politics News
Frank VanderSloot is an Idaho billionaire and the CEO of Melaleuca, Inc., a controversial billion-dollar-a-year company which peddles dietary supplements and cleaning products; back in 2004, Forbes, echoing complaints to government agencies, described the company as “a pyramid selling organization, built along the lines of Herbalife and Amway.” VanderSloot has long used his wealth to advance numerous right-wing political causes. Currently, he is the national finance co-chair of the Mitt Romney presidential campaign, and his company has become one of the largest donors ($1 million) to the ostensibly “independent” pro-Romney SuperPAC, Restore Our Future. Melaleuca’s get-rich pitches have in the past caused Michigan regulators to take action, resulting in the company’s entering into a voluntary agreement to “not engage in the marketing and promotion of an illegal pyramid”‘; it entered into a separate voluntary agreement with the Idaho attorney general’s office, which found that “certain independent marketing executives of Melaleuca” had violated Idaho law; and the Food and Drug Administration previously accused Melaleuca of deceiving consumers about some of its supplements.
But it is VanderSloot’s chronic bullying threats to bring patently frivolous lawsuits against his political critics — magazines, journalists, and bloggers — that makes him particularly pernicious and worthy of more attention. In the last month alone, VanderSloot, using threats of expensive defamation actions, has successfully forced Forbes, Mother Jones and at least one local gay blogger in Idaho to remove articles that critically focused on his political and business practices (Mother Jones subsequently re-posted the article with revisions a week after first removing it). He has been using this abusive tactic in Idaho for years: suppressing legitimate political speech by threatening or even commencing lawsuits against even the most obscure critics (he has even sued local bloggers for “copyright infringement” after they published a threatening letter sent by his lawyers). This tactic almost always succeeds in silencing its targets, because even journalists and their employers who have done nothing wrong are afraid of the potentially ruinous costs they will incur when sued by a litigious billionaire.
Numerous journalists and bloggers in Idaho — who want to write critically about VanderSloot’s vast funding of right-wing political causes — are petrified even to mention his name for fear of these threats. As his work on the Romney campaign brings him national notoriety, he is now aiming these tactics beyond Idaho. To allow this scheme to continue — whereby billionaires can use their bottomless wealth to intimidate ordinary citizens and media outlets out of writing about them — is to permit the wealthiest in America to thuggishly shield themselves from legitimate criticism and scrutiny.
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VanderSloot is a devout Mormon and has been an active member of the Church of Jesus Christ of Latter-Day Saints (LDS) since 1965. Over the last decade, he has continuously inserted himself into the political realm in all sorts of inflammatory and influential ways, clearly making him a public figure and fair game for scrutiny.
He has a history of virulent anti-gay activism, including the spearheading of a despicable billboard campaign condemning Idaho Public Television for a documentary, entitled It’s Elementary, that was designed to provide “a window into what really happens when teachers address lesbian and gay issues with their students in age-appropriate ways” (the image on the left shows one of VanderSloot’s “homosexual lifestyle” billboards after it was defaced with the word “YES!”). VanderSloot denounced the documentary as a threat to children: “if this isn’t stopped, a lot of little kids will watch this program and create questions they’ve never had . . . little lives are going to be damaged permanently,” he said. In 2008, VanderSloot’s wife, Belinda, donated $100,000 to California’s anti-gay-marriage Proposition 8 campaign.
Then there was VanderSloot’s behavior in response to an award-winning investigative series by The Post Register, a small, independently-owned newspaper in Mormon-heavy Idaho Falls, which unearthed the story of a pedophile in the local Boy Scouts troop who had molested dozens of scouts (the national Boy Scouts of America had succeeded in having the subsequent civil case sealed from public view). The Post Register sued to obtain those sealed records, and then detailed how a Mormon bishop knew of his pedophile history yet still recommended him as a Scout master, how he was protected by several Boy Scout lawyers who were aware of more abuse but did not tell the boys’ parents, and how top-level local and national leaders of the Mormon Church had also received warnings. The newspaper then began uncovering the presence of several other scout-master pedophiles. As the Post Register‘s courageous Managing Editor, Dean Miller, detailed here, the backlash against the paper, its editors and reporters was severe: the Boy Scouts in that part of Idaho is associated with and heavily supported by LDS, and “some counties that [the] newspaper serves are more than 70 percent Mormon, and for generations scouting has been the official youth program for Mormon boys.”
In response to this six-part exposé — which won the Scripps Howard Award for Distinguished Service to the First Amendment – VanderSloot went on a virtual jihad against the newspaper and the principal reporter who exposed the scandal, Peter Zuckerman. VanderSloot bought numerous full-page newspaper ads in The Post Register that attacked the story and explicitly identified the reporter, Zuckerman, as “a homosexual” (Zuckerman had previously written for a small Florida paper about being gay when he lived in that state, but had kept his sexual orientation largely a secret since he moved to rural Idaho). Vandersloot’s full-page ad expressly described the “speculation” that Zuckerman’s homosexuality had made him hostile to the Scouts and LDS: “the Boy Scout’s position of not letting gay men be Scout Leaders, and the LDS Church’s position that marriage should be between a man and a woman may have caused Zuckerman to attack the scouts and the LDS Church through his journalism.” While the ad absurdly sought to repudiate the very “speculation” about Zuckerman which it had just amplified (“We think it would be very unfair for anyone to conclude that is what is behind Zuckerman’s motives”), the predictable damage was done. Zuckerman’s editor, Dean Miller, explained: “Our reporter, Peter Zuckerman, was not ‘out’ to anyone but family, a few colleagues at the paper (including me), and his close friends”; but after VanderSloot outed him to his community in that ad, “strangers started ringing Peter’s doorbell at midnight. His partner of five years was fired from his job.”
VanderSloot has also long used his wealth in electoral politics: it was VanderSloot’s LearJet that was rented by the state’s far-right Lt. Governor, Jim Risch, to fly around the state as Risch successfully campaigned in 2008 to replace Larry Craig in the Senate. But he has taken his political activism to a new level this year with his vigorous support for Romney’s candidacy. VanderSloot has become the Romney campaign’s national finance co-chairman; four companies he controls gave a total of $1 million to Restore Our Future, the pro-Romney SuperPAC; he “has held Romney fund-raisers at his Idaho Falls ranch in both the 2008 and 2012 campaigns”; and Romney lavishly praised him this way: “Frank’s vision and sense of social responsibility is second to none and he never ceases to amaze me.” It merits much more attention that such a prominent and significant Romney backer is repeatedly using his vast wealth to bully reporters, bloggers, and activists out of writing about him with threats of frivolous though potentially bankruptcy-inducing legal claims.
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The examples of VanderSloot’s silencing of critics are numerous. On February 6, Mother Jones posted an article about VanderSloot and Melaleuca by its staff reporter, Stephanie Mencimer, headlined “Pyramid-Like Company Ponies Up $1 million for Mitt Romney.” It detailed VanderSloot’s ties to Romney, the controversial business history of Melaleuca, and the attacks on (and community outing of) Zuckerman by VanderSloot for his Boy Scout/pedophile investigative series. But for the last full week, if one clicked on the link to where that story once was on the Mother Jones website, the article was no longer there, replaced by an “Access Denied” error message.
That’s because Mother Jones – like so many outlets which have written about VanderSloot over the years — quickly received objections and a demand for retractions from Melaleuca’s in-house lawyers (and then received the same thing from Kirkland & Ellis, a large law firm retained by Melaleuca in D.C., where the Mother Jones bureau is located). So alarmed were Mother Jones editors at the prospect of being sued by such deep pockets that they did not edit the piece in accordance with the dictates of Melaleuca lawyers but actually removed the entire article from the Internet, and, until yesterday
afternoon, it had been deleted for more than a week. Mencimer’s article was re-posted only late yesterday. The revised article contains numerous tortured edits and corrections (all about trivial issues) designed to placate VanderSloot’s lawyers and to correct what were a couple of minor errors; tellingly, nobody from Mother Jones was willing to be quoted, even anonymously, for this article.
On February 10 — four days after the Mother Jones piece was first posted – Forbes published an article entitled “Meet the Men Behind Romney: Four Contributors Mitt Probably Doesn’t Want You to Know About”. Written by Elliot Suthers – a Forbes blogger and GOP operative (he worked on the campaigns of McCain 2008 and Saxby Chambliss) — the article examined what it called (based on this 2004 Forbes profile and complaints to government agencies) Melaleuca’s “somewhat shady business model,” and also referenced the “number of anti-gay causes” which VanderSloot has funded.
But again, if you click on the link to the Forbes site where the article originally appeared — here – you will be greeted by a message error; the only evidence of the article is found from other sites that linked to it. Forbes, too, received complaints from Melaleuca lawyers which caused them to remove the article entirely. The very day the article was published, Melaleuca’s General Counsel, Ryan Nelson, sent an email to Suthers (as well as to various Forbes editors) accusing him of making “defamatory statements” and directing: “We expect immediate action here and no more stonewalling from you.” It warned them that “this is serious business” that “will escalate this quickly if you do not help us resolve these issues immediately.”
These national magazines are encountering what small local journalists and bloggers in Idaho have confronted for years. The website 43rdStateBlues is written by a collection of Idaho Democrats and they all write under pseudonyms. In 2007, one of them (“TomPaine”) wrote a critical post about VanderSloot, and then quickly received a letter from Melaleuca’s in-house General Counsel at the time, Ken Sheppard, threatening a lawsuit if the post was not removed within 24 hours. The website complied by removing the post, but wanted their readers to know why the post was removed. So another poster (“d2″) explained that they had received a letter from Melaleuca’s lawyers demanding its removal, and then posted the lawyer’s letter.
Melaleuca responded by obtaining an after-the-fact copyright certificate for that lawyer’s letter, then demanded that the hosting company remove the letter from the website on the ground that it constituted copyright infringement (the hosting company promptly complied), and Melaleuca then sued the website for copyright infringement for having published the now-copyrighted lawyer’s letter without their consent. Worse, as part of that lawsuit, Melaleuca issued a subpoena demanding the identities of both anonymous bloggers — the one who wrote the original post about VanderSloot (“TomPaine”) and the one who posted the lawyer’s letter (“d2″). A district court in Idaho ordered the website to disclose to Melaleuca the identity of the blogger who posted the lawyer’s cease-and-desist letter, but refused to compel disclosure of the identity of the other blogger. It’s almost impossible to imagine any more thuggish attempts to intimidate people from speaking out and criticizing VanderSloot: this was a tiny website being sued for trivial offenses in federal court by a company owned by a billionaire.
There is no journalist or blogger too small to evade VanderSloot’s threats. The Idaho Agenda is a website that covers issues of interest to the state’s LGBT community. On February 2 of this year, one of its bloggers, James Tidmarsh, wrote a piece entitled “Romney Receives Big Money from Idaho’s Not-So-Gay-Friendly Melaleuca Company.” When he received an accusatory letter from a Melaleuca lawyer, Associate Counsel Michael LaClare, Tidmarsh spoke to friends to decide what to do, but before he could respond, he received a follow-up missive by email from a different company lawyer, General Counsel Ryan Nelson, demanding compliance. When Tidmarsh emailed Nelson to say that he was working on a response, the Melaleuca lawyer responded: “We really need to address this issue today or else we will have to consider escalating this issue to a much more serious level.”
Although Tidmarsh noted what was plainly true — that “the facts included in the post are a matter of public record found elsewhere, including the internet, periodicals and newspapers” — he was afraid of being sued by a billionaire and thus removed the post entirely. This is what one now finds when one clicks on a link to the original article.
What makes this particular threat so outrageous is how plainly frivolous were the accusations of “defamation.” Melaleuca’s letter cited three offending statements by Tidmarsh: first, that VanderSloot “has a pretty solid anti-gay history in Idaho” — a statement that is plainly true in light of his involvement with the nasty campaign against the Public Television documentary, his outing of local reporter Peter Zuckerman to his Idaho community, and his steadfast support for anti-gay politicians such as Romney and Risch (moreover, Melaleuca’s General Counsel, Ken Sheppard, doubled as an official with the “Concerned Citizens for Family Values,” to which Melaleuca and VanderSloot were large donors); in any event, the characterization of VanderSloot’s causes as “anti-gay” is pure political opinion. The threatening letter also complained about Tidmarsh’s statement that VanderSloot “attacked” Zuckerman and “knock[ed] him for his sexuality” — again, also plainly true given the contents of that full-page newspaper ad that outed Zuckerman to his not-very-gay-friendly rural Idaho community in the context of attacking his journalism. And the third complaint — about the mention of VanderSloot’s wife having donated $100,000 to the Prop 8 campaign — is just bizarre: she did exactly that, and there is no suggestion that the claim is false.
The effect, if not the intent, of these frivolous threats, pure and simple, is to intimidate those who cannot afford to defend themselves from criticizing the very public, politicized acts of Frank VanderSloot and his company. That’s why one no longer can even read most of the criticisms that prompted these warnings.
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Most of those who have been successfully bullied out of their free speech rights are reluctant to talk about what happened for fear of further retribution. But now, VanderSloot may have picked the wrong person to bully.
Jody May-Chang is an independent journalist and an LGBT spokesperson in Boise. By coincidence, she was one of the local reporters who interviewed me last weekend when I spoke to the annual Bill of Rights dinner of the ACLU in Idaho. At the end of the interview, she mentioned to me the series of threats issued to local LGBT journalists and bloggers by VanderSloot. Unbeknownst to May-Chang at the time, she, too, had been targeted for the crime of speaking critically of the Idaho CEO.
Back in 2007, in the midst of the campaign to replace GOP Sen. Larry Craig, May-Chang wrote an innocuous post about VanderSloot’s support for Lt. Gov. Risch. In it, she described VanderSloot’s involvement in the campaign against the public television documentary, and wondered aloud if the GOP Senate candidate shared VanderSloot’s anti-gay views. She also included the official photograph of VanderSloot taken from the Melaleuca website: a common practice for journalists when writing about a public figure.
In response, she was sent a letter from LaClare, Melaleuca’s counsel, accusing her of copyright infringement (for use of the photo) and defamation (for, among her things, her “characterizations of Mr. VanderSloot as ‘anti-gay’”). May-Chang never actually received that letter back when it was sent in 2007, and because she soon thereafter moved her website to a different URL, Melaleuca likely assumed she complied with its demands and removed the post. But then the recent Mother Jones article cited and linked to May-Chang’s post at its new URL, and Melaleuca likely learned that way that it was still posted on the Internet. As a result, they immediately sent May-Chang another letter – four years after her original post – demanding removal of what it called “inflammatory rhetoric published as fact” and “false accusations of bigotry.” Company lawyers have subsequently called her several times at home, repeating their standard pattern of badgering their targets until they comply.
But May-Chang is determined not to succumb to this bullying or to relinquish her right to opine and report on the conduct of a very significant political figure in her state. Though she did remove the photograph of VanderSloot, she refuses to relinquish her right criticize his political activism. As she put it to me: “his legal team insists that neither VanderSloot nor his company have an anti-gay position, but when placed up against his actions that assertion is laughable.” She added:
I think the real issue here is about promoting a religious social agenda that fits in with the LDS belief system, and VanderSloot’s connection to the Romney presidential campaign. VanderSloot has been getting a lot of press lately about his $1 million donation to Romney’s super pac, and now Melaleuca attorneys are ratcheting up their efforts to protect what they consider the company’s squeaky clean public image. They do this with threatening letters demanding that news organizations and bloggers scrub their websites of information they consider damaging or face legal action.
Despite her resolve, May-Chang works as an independent journalist and, like most other targets of VanderSloot’s threats, is fearful of the financial consequences of defying his demands. She is nonetheless determined not to permit a highly politicized billionaire to create a Free Speech and Free Press shield of immunity around himself with baseless, bullying legal threats.
Given what a threat this conduct is to free speech, free press and political debate, I assured May-Chang that if she is sued by VanderSloot and/or his company, I would work endlessly to raise the funds she needed for vigorous legal representation. There is no question that there will be ample willing donors ready to support an independent journalist and a stalwart activist for LGBT equality in Idaho who is the target of a steamrolling, intimidation campaign from a right-wing billionaire fanatic and Romney finance co-chair, especially one plagued with the history that VanderSloot has. And it is not hyperbole to say that it is urgent that someone stand up to and stop Frank VanderSloot and his team of subservient lawyers who are abusing the law and their own resources to threaten, bully and silence vulnerable people from engaging in perfectly legitimate political speech.
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Threatening journalists and bloggers with baseless lawsuits and trying to suppress free debate is a recognized menace. Close to 30 states in the U.S. have adopted so-called anti-SLAPP statutes — designed to punish “strategic lawsuits against public participation” (SLAPP). Those statutes create causes of action against those who abuse the legal system not to vindicate legal rights, but to intimidate and silence critics. Organizations such as The Public Participation Project now exist exclusively to defend those victimized by SLAPP suits or the threat of them. Those anti-SLAPP statutes have repeatedly been used to defeat abusive lawsuits brought to stifle legitimate speech by media outlets and bloggers. As the Project explains: ”such lawsuits turn the justice system into a weapon, and have a serious chilling effect on the free speech that is so vital to the public interest. The lawsuits also cost media organizations thousands of dollars. Even a meritless suit can drag on for months – sometimes even years – and tactics such as aggressive discovery can pile on the costs.” And lawyers — whether working in-house for a corporation or a private law firm — have an independent duty not to threaten frivolous lawsuits for improper ends (Melaleuca did not respond to a message left yesterday for its General Counsel, Ryan Nelson, seeking comment for this article).
The reality is that most people who threaten to bring defamation lawsuits rarely do so. There are few things more invasive than being a defamation plaintiff. Because one must prove reputational injury, and in most cases must prove that one’s business or financial interests have been harmed by the allegedly defamatory statements, virtually every aspect of a person’s private and business life — anything relating to their reputation and financial activities — is subject to discovery and investigation. That “truth is a defense” allows sweeping discovery into the allegedly defamatory statements. Beyond that, those like VanderSloot who are public figures, suing over articles clearly about matters of public interest, have a very high burden to meet in order to prevail, and proving actual damages is difficult in the extreme.
But many people who threaten to bring such suits — especially those with deep pockets making threats against those who cannot afford to defend themselves — know full well that it will never get that far because the threats themselves will suffice. That’s the dynamic that has to change, and (this is addressed to any lawyers for VanderSloot and Melaleuca reading this) this is the dynamic that will change if someone stands up to these pernicious tactics.
Anyone who is the national finance co-chair of Mitt Romney’s presidential campaign deserves probing, substantial scrutiny. That’s equally true of someone who continues to use their vast wealth to influence the outcome of our elections and our most inflammatory political debates. And it’s certainly true of someone who has made it a regular practice of threatening journalists, bloggers and activists who shine light on his political and business practices. Journalists like Jody May-Chang who focus their journalistic light on people like Frank VanderSloot provide all of us with a vital public service, and deserve our full-fledged support when they are targeted with threats and retribution.
Elliott and the friends with whom he recorded in middle school in Texas (photo courtesy of Dan Pickering)
Heatmiser publicity shot (L-R: Tony Lash, Brandt Peterson, Neil Gust, Elliott Smith) (photo courtesy of JJ Gonson photography)
Elliott and JJ Gonson (photo courtesy of JJ Gonson photography)
"Stray" 7-inch, Cavity Search Records (photo courtesy of JJ Gonson photography)
Elliott's Hampshire College ID photo, 1987
Elliott with "Le Domino," the guitar he used on "Roman Candle" (courtesy of JJ Gonson photography)
Full "Roman Candle" record cover (courtesy of JJ Gonson photography)
Elliott goofing off in Portland (courtesy of JJ Gonson photography)
Heatmiser (L-R: Elliott Smith, Neil Gust, Tony Lash, Brandt Peterson)(courtesy of JJ Gonson photography)
The Greenhouse Sleeve -- Cassette sleeve from Murder of Crows release, 1988, with first appearance of Condor Avenue (photo courtesy of Glynnis Fawkes)