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Defamation roundup, August 13, 2011

Here are a few bits of news on the defamation lawsuit beat:

1. Thomas Cooley Law School, who sued two lawyers and some anonymous bloggers over comments made online about the school, has been sued by those same lawyers for alleged fraud in the reporting of graduate employment statistics:

Cooley filed a lawsuit (PDF) against Kurzon Strauss last month in response to solicitations the firms posted on Craigslist and JD Underground that included a draft of a purported class action complaint contending that Cooley incorrectly reported its graduates’ job placements. David Anziska told the ABA Journal at the time that the firm intended to countersue Cooley as well as the school’s lawyers at Miller Canfield.

Cooley has also been in the news for a creative re-imagining of law school rankings and for planning an expansion to a new campus in Florida.

2. Proving that the defamation Streisand effect extends beyond the legal profession, a doctor in Minnesota is appealing a court ruling that says comments posted online that are critical of his bedside manner do not constitute defamation:

Amusingly, part of the reason that Dr. McKee is apparently filing the appeal is because he claims that the same guy started writing a bunch more critical messages about him online after the ruling came out. However, the guy, Dennis Laurion, insists that he hasn’t posted anything since the lawsuit began, and suggests that perhaps all of those anti-McKee posts came about because of the negative publicity associated with the lawsuit. Specifically, he notes that “there was an influx of Internet chatter about McKee after a link to a story about McKee appeared on the high-traffic website reddit.com.” So what next? Will Dr. McKee try to sue a bunch of Reddit posters too? I’m sure that will go over well…

3. Finally, the story of a Philadelphia attorney who, after seeing a 2007 article about himself on the internet in 2009, sued quite a few people for defamation and various other claims. The lawsuit was dismissed as untimely, but the lawyer kept on suing, adding as defendants the lawyers who got the case originally dismissed. It is an interesting case.

Photo by Ralf Peter Reimann. Used under a Creative Commons license.

Justice isn't always pretty. (Photo by Ralf Peter Reimann. Used under a Creative Commons license.)

Obviously defamation law is of interest to me, as is the notion that it can be used to bully people into silence on the internet. I can honestly say that I do not know all the facts in any of these cases, since I only have access to what is on the internet. That’s the thing, though–if no one is allowed to comment on a matter of public interest until they have all the facts, then there would be no public discussion of any kind, ever. I strongly believe that, in almost all circumstances, the proper response to allegedly defamatory speech is more speech. As Justice Brandeis wrote in his concurrence in Whitney v. California:

If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.

All Constitutional issues aside, there is a more immediate point to this, that Justice Brandeis could not have understood: lawyers cannot control the internet. Scott Greenfiled nails it:

Neither bluster nor averment is going to bend the internet to our overwhelmingly mighty lawyer will.  I know, it’s hard to fathom that the world doesn’t shake when we threaten or act, but the internet is a different animal from anything we’ve ever before known.

As lawyers, it’s time to come to grips with some hard realities that now exist and appear likely to be the norm going forward.  First, we are subject to ridicule online just like Babs Streisand.  Expect that every swing of your big lawyerly muscle is going to be rebroadcast in unkind terms by a lot of people who carry weight on the internet that lawyers can only dream of.

Second, expect that our claims and allegations will be subject to scrutiny far beyond our wildest dreams, and there’s a darn good chance that if there’s a flaw, any flaw, even the slightest, it’s going to be magnified beyond your wildest imagination and become a testament to your incompetence.

And third, and most importantly, regardless of all else, the internet is populated some very smart and some very crazy folks.  If the former don’t get you, the latter will.

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