Avenatti: Alleged Nike Extortion Attempt Was 'Speech' Protected by First Amendment


I’ll give it to Michael Avenatti: You can’t fault him for a lack of audacity.

If you’ve been paying attention to the stoat-like creature so aptly referred to as the “creepy porn lawyer,” who’s now facing a battery of charges in multiple cases, you’ll already know he thinks a presidential run still isn’t out of the question.

And why not? I know that the only thing funnier than seeing Marianne Williamson prattle on about love and dark psychic energy would have been seeing a bravado-puffed serial prevaricator explaining to America why his complete lack of ethics or experience in anything except high-end ambulance chasing made him presidential material, all while he was sporting an electronic ankle bracelet.

If you think he couldn’t top that, you clearly don’t know you some Michael Avenatti. Oh lordy, no, you don’t. He’s now claiming his alleged extortion attempt was actually just free speech protected under the First Amendment.

The most pressing of Avenatti’s legal problems at the moment is his alleged attempt to extort $22.5 million from Nike. Avenatti had purportedly threatened to expose that the athletic-wear giant had been involved with shenanigans involving high school and college athletes if they didn’t pay up.

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This plan didn’t just have a few flaws in it so much as it was mostly made of flaws.

Let’s set aside the fact that most Americans would be about as surprised about the news that supposedly “amateur” college athletes were receiving some form of remuneration as they would be if they found out that fictional billionaire playboy Bruce Wayne actually doubled as a masked superhero named “Batman.” Let’s also set aside the fact that Michael Avenatti’s trust level with the public is such that if he were to relay to us the information Mr. Wayne was indeed this Batman, we might actually be disinclined to believe him. Why would this present a serious threat to Nike even if he did have something on them?

No, it’s because of this: Why would you pay a guy who can’t keep quiet to keep quiet? Nike would look even more guilty if it ever came out that they paid Avenatti to keep his trap shut — not to mention stupid. Why did Avenatti not think representatives from Nike would have him arrested the moment they had enough evidence to go to police?

The answer is, at least if new legal filings are to be believed, Avenatti doesn’t really believe anything he allegedly did is actually a crime.

Do you think Michael Avenatti will be convicted?

“Mr. Avenatti is being charged with a speech crime,” Avenatti attorneys Scott Srebnick and Jose Quinon wrote in a Monday filing that attempted to convince a judge to toss the extortion charges, according to the New York Post.

“Every one of the acts of speech attributed to Mr. Avenatti in the Indictment was independently lawful and independently protected by the First Amendment. He had the right to publicly expose truthful information about Nike’s misconduct.”

So here’s the hitch: Avenatti’s vehicle for getting the money from Nike was for him to be hired as an internal investigator. He also demanded that his client, a former employee of the sportswear company, get money.

“He had the right to demand from Nike a settlement of his client’s claims, as attorneys do across the country every day,” the filing reads.

“He had the right to demand a settlement on terms that may seem extraordinary to some, as is often the case when attorneys make opening settlement demands. He had the right to demand attorney’s fees for himself as part of the overall settlement of his client’s claims. And, Nike had no inherent right to be free from exposure of its own misconduct.”

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This seems somewhat at odds with the fact that Avenatti allegedly threatened, on a conference call with Nike’s lawyers, that he’d “go take $10 billion off your client’s market cap … I’m not f—ing around.”

That sounds an awful lot like a shakedown and not so much like an opening offer. But that’s just me.

It remains to be determined whether or not Avenatti said this, of course, and we all ought to have the presumption of innocence. That said, it’s worth noting he allegedly made these remarks during a conference call — a form of communication that, last I checked, can be very easily recorded by a number of means. You do the math on the likelihood this was uttered by our favorite lawyer.

I also quite like the part in the filing where Avenatti’s lawyers say that “Nike had no inherent right to be free from exposure of its own misconduct.” The same could be said for any blackmail victim where the material the blackmailer has against them is accurate. In other words, this sentence is literally casting blackmail as an activity protected under the First Amendment.

I’d also like to extend my sympathy to the prosecution and bench in the Avenatti case inasmuch as this is the second inane attempt by Avenatti’s attorneys in a week to have the Nike charges dismissed. Last week, they argued their client was only being charged because he was an opponent of President Donald Trump.

“The [U.S. Attorney’s Office – Southern District of New York] substituted its own personal impressions of Mr. Avenatti, drawn from his aggressive public persona, long feud with President Trump, and brief entanglement with the USAO-SDNY in the Michael Cohen investigation,” that filing read, accusing the prosecution of basically being pawns of the Trump administration.

I’m kind of interested with what defense his lawyers are going to come up with when it comes to the Stormy Daniels case, where it’s alleged he bilked her out of hundreds of thousands of dollars. Was his purported forgery of her signature to get her book advance his First Amendment right, too?

Or maybe they’ll get even more obscure — it was his Third Amendment right, which protected him against having to quarter troops in his home in times of peace. It has as much to do with the Daniels allegations case as the First Amendment does with the Nike case, but the Third Amendment has to be three times as powerful as the First, right? Isn’t that how this works? Anyway, I’m sure the Daniels case all comes down to Trump, who somehow made Avenatti’s very anti-Trump client turn against him and accuse him of stealing her book advance.

Either Avenatti is still directing his own defense to a dangerous extent or it seems — at least to this lay observer of the legal system — he’s somehow managed to find lawyers as brazenly incompetent as he is. Neither augurs well for his chances in this trial.

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C. Douglas Golden is a writer who splits his time between the United States and Southeast Asia. Specializing in political commentary and world affairs, he's written for Conservative Tribune and The Western Journal since 2014.
C. Douglas Golden is a writer who splits his time between the United States and Southeast Asia. Specializing in political commentary and world affairs, he's written for Conservative Tribune and The Western Journal since 2014. Aside from politics, he enjoys spending time with his wife, literature (especially British comic novels and modern Japanese lit), indie rock, coffee, Formula One and football (of both American and world varieties).
Morristown, New Jersey
Catholic University of America
Languages Spoken
English, Spanish
Topics of Expertise
American Politics, World Politics, Culture