Federal Court held that Sac County Prosecutor Ben Smith’s threat to prosecute ED Magedson and Xcentric was likely to be found to be illegal retaliation, and likely to be found to have violated the civil right of free speech First Amendment of the United States Constitution

It has come to Ripoff Report’s attention that Michael Roberts Rexxfield and page1.me has been making false statements about Ripoff. It may be that he is mad that his actions were criticized in the Ripoff Report and in his immature tantrum over being criticized, he has decided to try and stain the reputation of the Ripoff Report or it may be that he is making a living trying to undermine the Ripoff Report.  Either way, Roberts must resort to distortions and lies about the Ripoff Report.  As you the readers of the Ripoff Report know, the Ripoff Report provides a forum where people’s complaints are posted for the world to see.  The person or business may respond for free (no charge) and the public can judge the person/business by their reaction to criticism.  In some cases, the person/business can even pay for an arbitrator to review the allegations and make a finding of whether they are true or not.

FALSE STATEMENT NUMBER ONE:  Ripoff Report has committed crimes.

FALSE STATEMENT NUMBER TWO:  Ripoff Report Founder Ed Magedson is under criminal investigation that will lead to prison.

There is nothing illegal about what Ripoff Report does as a forum for criticism.  Regarding the allegations of a criminal investigation that will lead to prison, the US District Court in Cedar Rapids Iowa ordered Ben Smith, the Sac County Attorney and prosecutor to stop his investigation of Ed Magedson founder of Ripoff Report and Xcentric Venture LLC, the company that operates the RipoffReport.com website. 

The Court determined that Xcentric was likely to prevail in the suit alleging that the prosecutor was violating the right to free speech guaranteed by the First Amendment of the US Constitution and alleging the prosecutor acted improperly by attempting to get even for past criticism of his actions. Criticism of Sac County Attorney Ben Smith had been published on RipoffReport.com.  Smith publicized that he was attempting to prosecute Ed Magedson and Xcentrtic for reports about a case that he prosecuted and for which he was criticized in the Ripoff Report.  To protect Ripoff Report, Magedson and Xcentric sued Smith in Federal Court for abusing the power of his elected public office to violate the right of free speech. The Federal Court has preliminarily found that Xcentric and Magedson will likely prevail at trial.

Michael Roberts has apparently been telling people that paying him or his business entities will somehow result in Ed Magedson going to jail, or Ripoff Reports being removed from the Internet.  Roberts allegedly refer to information posted on the internet by, or at least about, the very prosecutor that has been ordered to discontinue his investigation due to his misconduct.

On August 19, 2015, in US District Court in Cedar Rapids Iowa, The Honorable Mark W. Bennett, U.S. District Court Judge, Northern District of Iowa, approved the recommendation made by United States Magistrate Judge Leonard T. Strand, who heard testimony from Smith, Magedson, and Xcentric, and considered briefs and evidence presented by both parties to the lawsuit. The court ruled against Smith and entered a preliminary injunction ordering Smith not to bring criminal charges against Xcentric or Magedson, not to continue his investigation of Xcentric and Magedson, and to stop disclosing information obtained through investigation. The order will remain in place during Xcentric’s lawsuit against Smith for civil rights abuses. The Court found that Xcentric is likely to prevail in that lawsuit and that Sac County Prosecutor Smith suppressed free speech by suing in civil court and performing a reckless criminal investigation against Magedson and Xcentric for posts on Ripoff Report that embarrassed and ridiculed Smith. The Court acknowledged that Xcentric’s described Smith’s actions as illegal retaliation.

The reports posted to Ripoff Report criticized Smith or his conduct in the murder trial of Tracy Richter, who is Michael Robert’s ex-wife. The background story behind the preliminary injunction started in 2001 when a 20 year old man named Dustin Wehde was shot to death in the home of Micheal Roberts and his wife Tracy.  Tracy said she shot Wehde in self-defense after she was attacked by Dustin and another man.  Michael said he was out of town on business. When Michael took a police polygraph, the lie detector did not clear him of suspicion because of the way he answered questions about whether he arranged for Dustin Wehde to come to his house that night. Michel Roberts remained under suspicion. The polygrapher interpreted Roberts answers as deceptive. https://www.scribd.com/doc/287338996/Michael-Roberts-99-Deceptive-Polygraph-on-Dustin-Wehde-Murder-Reprint   At the time, the Sac County Attorney did not charge anyone with murder, apparently accepting Tracy’s account of self-defense.

Time passed, Michael Roberts and Tracy broke up and she changed her name to Tracy Richter.  They fought over child custody.  Wehde’s family sued Tracy, and evidence was gathered and shared as part of that lawsuit, and then the lawsuit was dropped.

Later, Michael Roberts became part of a scheme to hack RipoffReport.com, and take money from businesses for bringing down Ripoff Reports.  Roberts approached Ripoff Report and asked for a lot of money, €105,000.00, to reveal the solution to the hack, which Ripoff Report refused to pay. See here a link to the document sent to Ripoff Report attorneys where Michael Roberts attempted to extort Ripoff Report. Roberts asked for immunity for himself and the creator of the HACK. Ripoff Report technicians found the hack, repaired the damage, and closed the vulnerability.  Robert’s scheme unraveled for several reasons, including because several of the conspirators were going to jail for different crimes, and members of the group had turned against one another. 

In 2011, 10 years after the shooting, Ben Smith was elected Sac County Attorney. He decided to revive the cold case and prosecute Tracy Richter.  Ben Smith apparently disregarded the failed polygraph that did not clear Michael Roberts as a suspect in the murder investigation. See here a link to the failed polygraph.   https://www.scribd.com/doc/287338996/Michael-Roberts-99-Deceptive-Polygraph-on-Dustin-Wehde-Murder-Reprint

One of the conspirators in the hack scheme, Darren Meade, approached Sac County Attorney Ben Smith, claiming to have information about Tracy Richter and Michael Roberts.  Ben Smith ignored that and prosecuted and convicted Tracy in spite of it. Smith helped Michael gain custody of two of Tracy’s children and flee the United States.  Ben Smith married the daughter of one of the prosecution’s main witness.  Meade began seeking ways to raise public awareness about the prosecutor’s actions, and the flaws in the case against Tracy Richter.

Meade convinced Ripoff Report’s Founder Ed Magedson that the Sac County Prosecutor Ben Smith perpetrated a great injustice. Meade began writing reports about Ben Smith and posting them on Ripoff Report, and the reports became featured articles. Magedson did not write any of the reports and provided no content. He did allow Ripoff Report to be the forum for presentation of Meade’s information and opinions. Magedson is passionate against prosecutorial misconduct and decisions that bring convictions against innocent people and ruin lives. 

The reports written by Meade pointed out things that offended Ben Smith, and ridiculed his conduct as Sac County Attorney. The reports also detailed Meade’s opinion that Michael Roberts set up Tracy Richter in order to marry another woman, take the family business all to himself, and to take the children away from Tracy Richter. 

Michael Roberts / Rexxfield started a public campaign to destroy Ripoff Report with negative publicity and harass anyone who participated in Ripoff Reports consumer protection programs. He demanded that Ripoff Report take down reports about him, and worked to get information about himself removed from other internet outlets.

Sac County Prosecutor Ben Smith worked with Michael Roberts, using his government power as a prosecutor to “investigate” with subpoenas and at least one search warrant. He filed multiple unsupportable criminal charges against Meade in Sac County Iowa, including charges under California law for actions alleged to have taken place only in California. He requested that information be removed from Ripoff Report.  Then he offered Meade immunity to testify against Magedson.  He released Ed Magedson’s confidential information from his personal email account, including attorney client emails in an effort to damage Magedson and Ripoff Report, and publicly threatened to charge Magedson with crimes. Crimes that never happened.

Ultimately, in order to protect freedom of speech and the Ripoff Report, Magedson and Xcentric Ventures LLC filed a civil rights lawsuit against Sac County Attorney Ben Smith.  The suit alleged that Smith abused government power to retaliate against his critics.  First, Magedson and Xcentric asked the Court to order Ben Smith to stop his investigation and stop the attempt to charge Magedson with crimes during the civil rights lawsuit. In legal terms, Magedson and Xcentric applied for a preliminary injunction.

The Court granted the request and issued the order.

THE PRELIMINARY INJUNCTION AGAINST SMITH GRANTED BY FEDERAL COURT JUDGE IN IOWA

The Court found that Xcentric was likely to prevail with claims that Smith’s threat to prosecute Magedson and Xcentric was illegal retaliation, and violated the civil right of free speech and the First Amendment of the United States Constitution.  “Plaintiffs are entitled to First Amendment protection regardless of whether they were content providers with regard to any statements about Smith that have been published on Ripoff Report. . . In short, the plaintiffs have had their confidential records and privileged communications seized and disclosed and have been threatened with criminal prosecution as a result of statements posted on Ripoff Report. I have no difficulty concluding that these consequences would “chill a person of ordinary firmness” from continuing to engage in protected First Amendment activity.”

The Court’s ruling is detailed in a 52 page Memorandum Opinion and Order.https://www.scribd.com/doc/281648518/Xcentric-Ventures-LLC-and-Magedson-v-Ben-Smith-Case-Doc-No-056-C-15-4008-MWB-Memorandum-Opinion-and-Order-RE-Report-and-Recommendation-on-Mot  

The Memorandum Opinion and Order cover the procedural history of the case, and includes findings of facts on multiple topics. The Memorandum Opinion specifies that Xcentric was likely to prevail on claims that Smith’s conduct infringed civil rights of free speech, in violation of the First Amendment of the United States Constitution.

The Opinion is critical of Smith’s conduct, stating that “The finder of fact could easily determine that Smith is treating this investigation differently, and indeed obsessively, because he is angry and embarrassed by Ripoff Report posts that have criticized and ridiculed him. . . .” The Court citing aggressive retaliatory tactics Smith used, such as relying on Ripoff Report’s avowed enemies to provide the content of Smith’s own affidavit (there was evidence that Michael Roberts provided content and so did John Brewington), filing the affidavit as public record rather than the usual sealed filing, and publicizing his allegations before filing any charges.

The court also noted that Smith charged the author of the postings, Darren Meade, with crimes based on vague allegations, and began prosecution against Meade, but failed to support the charges with specific allegations. Smith offered Meade immunity if he would testify against Magedson. When Meade refused, Smith dropped all charges against Meade rather than even attempting to prove a case.

The Court also found that Smith’s actions in obtaining and releasing confidential information without legal justification was “most troubling” and stated “it is very difficult to consider this over-the-top behavior as being anything other than retaliatory.” One legal scholar commented about this part of the Court’s opinion by saying “When I see the phrase ‘over-the-top behavior’ in a court opinion, usually bad things are about to happen.”

The preliminary injunction issued in defense of free speech obviously brings some relief to Ripoff Report’s operator Xcentric Ventures and Ed Magedson, who had reason to fear that Smith would have him arrested and imprisoned for allowing free speech on the RipoffReport.com website. 

However, Prosecutor County Attorney Ben Smith’s abuse of power and disregard for civil rights continues to be a problem for Ripoff Report.  For example, Smith illegally leaked confidential information from his “investigation” to bloggers and internet trolls such as John Brewington Paladin PI, who continue to harass, intimidate or smear Ripoff Report, Magedson, and Xcentric.  Read more here about John Brewington Paladin PI attempted extortion to Ripoff Report in-house attorney.

BEN SMITH SAC COUNTY PROECUTOR HELPING MICHAEL ROBERTS BUSINESS

Smith also shared information with Roberts.  Roberts has claimed that he literally wrote the crime book for criminal prosecution of Xcentric and Magedson, and recruited the prosecutor to do it. He uses the claim to boost credibility for his anti-Ripoff Report business, and he solicits contributions to help get Ripoff Report shut down.  Roberts also claims to be able to suppress Ripoff Reports in search engine results. When Roberts’ expensive service fails to suppress or hide Ripoff Reports, he tells his customers to keep paying him because if they just keep giving him money, he will be able to get Magedson arrested, convicted, and jailed, among other things.  

Smith threatened to prosecute Xcentric and Madgeson for the postings about Roberts by calling Michael Roberts a witness, and calling the criticism retaliation for witness testimony.  However, Michael Roberts never testified at the murder trial. The Court pointed out that case law prevents Smith from using Iowa’s law against witness retaliation to prosecute Xcentric for criticism of someone who was not a witness. The Court’s Memorandum Opinion explains that criticism of Michael Roberts cannot be considered a crime, rejecting Smith’s main stated legal basis for investigating or attempting to prosecute Xcentric or Magedson. 

Additional Arguments by Xcentric and Magedson

The Court granted the preliminary injunction because of Freedom of Speech under the First Amendment to the United States Constitution.  Xcentric and Magedson also argued that there were other reasons for the Court to issue the preliminary injunction against Smith.  The Court did not follow those arguments, but granted the preliminary injunction to protect Magedson and Xcentric based on the First Amendment.

There has been some public attention to the fact that the Court did not accept and follow Xcentric’s argument for immunity based on Section 230 of the Communications Decency Act, and the fact that Magedson did not write any of the reports about Ben Smith or the Tracy Richter murder trial.  Section 230 of the CDA provides Xcentric and Magedson immunity against publisher liability for postings on the Ripoff Report, unless the company develops the content that is the subject of potential liability.  Smith attempted to present evidence suggesting that Magedson should be liable as a publisher because Magedson spoke many times to Meade on the telephone, communicated with him in email, helped him with rent and medical bills and Xcentric paid for some PR and consulting work. 

The Memorandum Opinion states that at this stage in the case Section 230 immunity would not be a basis for issuing the preliminary injunction. The Court also stated that “this is not a final decision as to the plaintiff’s immunity under the CDA. Both sides will have the opportunity to conduct significant discovery on this issue between now and the time of trial.” At present, the Court has issued a preliminary injunction to stop Sac County Attorney Ben Smith’s investigation of Xcentric and Magedson because his persecution is found to be a retaliation against the exercise of free speech and an offense to the First Amendment of the U.S. Constitution.

The additional arguments presented by Ripoff Report included arguments based on the Fourth Amendment, the Sixth Amendment, and Section 230 of the Communications Decency Act.  The fact that the Court did not follow the arguments in granting the preliminary injunction may mean that Xcentric and Magedson will not continue to present evidence to support them as the lawsuit goes forward. However, the Judge’s ruling is preliminary, and Xcentric and Magedson remain free to develop these additional arguments in the discovery phase of the case, in motions, and ultimately at trial. 

Other related stories about Sac County

Read more about ED Magedson – Founder, Ripoff Report
http://www.edmagedson.com/did-you-know/

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