In a one-page order, a Gwinnett County Superior Judge has given the go-ahead for attorneys representing the host of a Salem Radio Network Sunday night syndicated talk show and podcast focused on Second Amendment rights to proceed with a defamation lawsuit against the maker of ChatGPT.
It marks a significant shift in the trajectory of the case, which OpenAI LLC sought vigorously for a dismissal.
Ahead of the Dr. Martin Luther King, Jr., holiday. Judge Tracie Cason on January 12 denied a motion to dismiss filed by OpenAI.
With that decision, OpenAI was unable to convince the court that it lacked proper jurisdiction and, more importantly, that it was not ChatGPT that created the defamation but an individual who used ChatGPT’s output without independent verification for an article that centers around Mark Walters.
Cason, for one, believes the case should proceed at the state level, rather than in a federal district court. And, it brings another blow to DLA Piper/Atlanta’s Brendan Krasinski, who represents Open AI. Krasinski first filed a motion to dismiss Walters’ case in July 2023.
As RBR+TVBR previously reported, Walters in June 2023 sued OpenAI LLC for defamation on the grounds the company’s ChatGPT is guilty of “hallucinating” and creating a phony legal complaint that purportedly accused him of embezzlement when ChatGPT subscriber Fred Riehl, editor-in-chief of the AmmoLand Shooting Sports News daily news-wire, used it to research a verified Second Amendment case pending in Washington, D.C.
In its motion to dismiss, OpenAI through the DLA Piper/Atlanta attorney argued that its terms of use “make clear that ChatGPT is a tool that assists the user in the writing or creation of draft content and that the user owns the content they generate with ChatGPT.” As such, the company claims, “Riehl agreed to abide by these Terms of Use, including the requirement that users ‘verify’ and ‘take ultimate responsibility for the content being published.’ As a matter of law, this creation of draft content for the user’s internal benefit is not ‘publication.’”
Cason is not wholly convinced, and reached her decision “after carefully considering” the oral arguments from each party on Dec. 6, 2023.
On May 4, 2023, Riehl interacted with ChatGPT regarding a lawsuit he was reporting on: The Second Amendment Foundation v. Robert Ferguson. It’s described by Law360 as “high-stakes litigation involving gun owners and sellers seeking to block a newly enacted ban on manufacturing and selling assault weapons in Washington.”
In the interaction with ChatGPT, Riehl provided a correct URL of a link to the complaint on the website of that case’s plaintiffs, the Second Amendment Foundation. Riehl asked ChatGPT to provide a summary of the accusations in the complaint. That’s where the trouble starts. ChatGPT responded that the document “[I]s a legal complaint filed by Alan Gottlieb, the founder and executive vice president of the Second Amendment Foundation (SAF), against Mark Walters, who is accused of defrauding and embezzling funds from the SAF. The complaint alleges that Walters, who served as the organization’s treasurer and chief financial officer, misappropriated funds for personal expenses without authorization or reimbursement, manipulated financial records and bank statements to conceal his activities, and failed to provide accurate and timely financial reports and disclosures to the SAF’s leadership. The plaintiff seeks various forms of relief, including the recovery of misappropriated funds, damages for breach of fiduciary duty and fraud, and removal of Walters from his position as a member of the SAF’s board of directors.”
The problem with this response? “Every statement of fact in the summary pertaining to Walters is false,” Walters offered Judge Cason’s court through his legal counsel, John R. Monroe. Walters is not a party to the lawsuit, says he is not accused of defrauding and embezzling funds from the Second Amendment Foundation, and that he has never held the roles of Treasurer or CFO at the SAF. Walters also notes that an erroneous case number was also shared by ChatGPT.
“In effect, OAI’s argument is tantamount to the neighborhood gossip who says, ‘Now I don’t know if it’s true, but I heard that ….’ The disclaimer does not negate the libel,” Walters’ attorney said in court documents.
Walters is known to Second Amendment advocates for his Armed American Radio, which produces a podcast that led Salem to distribute a live show available on a market-exclusive, barter basis by SRN each Sunday from 8pm-11pm Eastern. Additionally, AAR produces the “Armed American Radio Daily Defense,” airing at 4pm Eastern each weekday.
The programs focus on Second Amendment issues pertaining to gun ownership rights in the U.S. And, the Sunday show can be heard on such stations as JVC Media-owned WRCN “LI News Radio” at 103.9 MHz in Suffolk County, N.Y.; WWRC-AM 570 in Washington, D.C.; and (from 9pm-11pm) WGUL-AM 860 in Tampa-St. Petersburg.
Walters is seeking monetary damages from OpenAI LLC for an undisclosed amount.
