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Posts Tagged ‘Calumny’

The Oatmeal redefines legal badassery

This is how you do it.

1. Create a brilliant web comic with thousands of fans.

2. Keep tabs on unauthorized redistribution of your own intellectual property on the web.

3. Identify websites that profit from unauthorized, unattributed copies of your work. Contact them regarding the copyright infringement.

4. When the infringement doesn’t stop, write a factual, sourced, entertaining blog post detailing the activities of one of said websites. Get the website to remove your stuff.

5. Wait about a year.

6. Receive a letter alleging defamation against said website from a lawyer whose main claim to fame is litigation over a porn site (not that there is anything wrong with that), demanding an unreasonable settlement.

7. Remain calm.

8. Respond with wit and sarcasm, remaining calm and clearly outlining a counteroffer.

9. Raise the demanded settlement amount online in sixty-four minutes.

10. Continue raising orders of magnitude more than the originally demanded amount.

11. Sit back and allow the world to marvel at your epic pwnage.

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Crystal Cox is Getting So Much Free Speech Coming at Her, She Probably Got Some in Her Eye

Redwood sunlight by NPS Photo [Public domain], via Wikimedia CommonsThere is not much I can add to the saga of Crystal Cox except for a few dirty puns. The bottom line of this story is that a “blogger” is not always a journalist. Sometimes a “blogger” is just an extortionist. I will relate the story by shamelessly quoting from better legal bloggers.

A good summary, in dramatic form, of how Crystal Cox operates comes to us from Jordan Rushie:

Imagine this…. you Google yourself. To your surprise, a whole bunch of stuff that is blatantly untrue comes up. Being an adult, you call the person who wrote it. This is how the conversation goes down:

“Did you write all that stuff on a website about me?”
“Yup. I’m an investigative blogger journalist!”
“Um, a bunch of the stuff you wrote about me is untrue. Actually all of it is.”
“Oh sure, I know. But I’m a journalist blogger so I can say whatever I want. First Amendment, bitch! But tell you what – I’m also reputation manager. If you pay me $2,500 a month, I’m sure a lot of that untrue stuff would go away.”
“Uhhhhhh… wait a second. You wrote a bunch of stuff that’s untrue about me. And now you’ll only take it down if I pay you?”
“Yup! And if you DON’T pay me it’s going to get worse! I’m going to buy a bunch of domain names that involve you and your family. Not only will I smear your reputation, but I’ll smear theirs, too! I’ll write all kinds of stuff, like call your wife a slut! I’ll even go after your four year old child!”
“That’s extortion!”
“No silly, it’s not extortion! It’s journalism! Investigative journalism!”

You’re probably saying to yourself “nah, that couldn’t happen. That’s illegal. A person could get in a lot of trouble for doing something so irresponsible and probably illegal.”

Too bad that’s exactly what Crystal Cox did. Twice now. Maybe more.

Crystal Cox first came to the public’s attention last year, when a judge ruled against her in a defamation suit and ordered her to pay $2.5 million. After some hand-wringing over what this might mean for other bloggers, it eventually became clear that Crystal Cox actually runs an online, reputation-based protection racket. That is many things, but it ain’t journalism.

At the heart of the current kerfuffle is first amendment bad-ass Marc Randazza (Full disclosure: he’s my lawyer in this thing I’ve got going on. That’s how I know he is a bad-ass.) When Crystal Cox did not get what she wanted from Marc Randazza, she went after him by registering dopey domain names like marcrandazzasucks.com. When that didn’t work, she went after his family, registering domains in the name of his wife and three-year-old daughter.

This is not a valiant warrior fighting the forces of darkness to defend freedom of speech. While it may be true that the front-line warriors for free speech (and I mean the speakers themselves, not their attorneys), are often ultimately fighting to clear the way for people who actually have something useful to say, Crystal Cox doesn’t even fit that description. She is not a reporter, journalist, or even the kind of blogger who just regurgitates other people’s news in a restated format (something about which I know a thing or two.) She is not a blogger in any meaningful, useful, constructive sense. She is a thug, nothing more, as court documents and her own statements and actions amply demonstrate.

Trying to shut her down is not necessarily the answer, though. In some ways, it is helpful to know that people like her are out there. As Marc Randazza says: “Sunshine is the best disinfectant. The cure for bad speech is more speech.”

Consider this my ray of sunshine.

Photo credit: Redwood sunlight by NPS Photo [Public domain], via Wikimedia Commons.

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Thoughts on Andrew Breitbart (Spoiler: they’re not good)

I’m very sorry for Andrew Breitbart’s family. They didn’t ask for the storm of crap that is likely to come from his passing. They ought to be able to mourn in peace. As it stands, though, opinions will swirl in a hostile online environment that Breitbart himself helped to create.

I can’t actually muster much enthusiasm to write about this guy, but several people have asked me my thoughts (although I’m not sure why). More than twenty-four hours have passed, which is reportedly more time than Breitbart allowed before ripping into Ted Kennedy (apparently this is a popular talking point among people who did not like Breitbart). That gives me some small measure of smug moral superiority. All I really have to say is that he was a thug and a liar.

He died of natural causes. That is being widely reported alongside the news that we don’t know how he died. That these two statements don’t yet go together ought to be clear, but if we learned anything from Andrew Breitbart, statements don’t have to be mutually consistent to be truthy.

The casualties of his mendacity are many. As so often happens, others have written more eloquently than I, so I turn to the words of this Tumblr blogger (h/t Karnythia):

Andrew Breitbart dropped dead unexpectedly today. His fellow journalists, eager to justify one of their own and “Make Some Larger Sense Of It All”, are already embarrassing themselves with their eulogies. Breitbart was the “cutting edge of the new journalism.” He “was among the first to see” that with the internet, the old standards of journalism no longer applied.” Blah, blah, blah.

No. Andrew Breitbart was nothing more than an accomplished liar. His “gotcha” journalism was deliberately dishonest but he justified his lies in the name of a higher truth. If he victimized his liberal targets with fabricated videos, that was OK because the larger truth (as defined by the Radical Right) was being served.

This is how fascists think.

I’m skipping the eulogies.

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Not All Opinions are Created Equal: Martha Sperry, Frivolous Lawsuits, and the Impossibility of Arguing with Some People

“Why are people hating me for having my own opinion?”

Spend any significant amount of time engaging in discussions (arguments) on the internet and you will hear this. This is different from a situation with two people reaching an impasse between two opposing viewpoints. This refers to a person who basically refuses to defend their position, preferring to demand respect for an opinion because dammit, it’s their opinion.

I have yet to encounter a situation where it is not a craven attempt by someone who cannot defend their position to cast the attention back on the person who is kicking their butt. “No, I can’t defend what I am saying but you’re being mean!!!1!!!” is mostly how it goes.

I signed up for a Disqus account last week, and my third comment left on a blog thread garnered this response. I think this must be a record, but I do not expect any sort of prize.

It bothers me as an attorney (albeit an infrequently-practicing one), a blogger, a writer, and one who just enjoys a good argument now and then. It bothers me because it’s dishonest. No one hates you for having your own opinion, so don’t be so damn dramatic.

It bothers me because it is lazy. The argument is not going your way, so you are going to punt back to the other side.

Most of all, it bothers me for reasons that go beyond dishonesty. Trying to end an argument by appealing to some equitable notion that “everyone is entitled to their opinion” does not even deserve to be called “wrong,” because (and I cannot say this adamantly enough) not all opinions are created equal, and opinions are not worthy of respect or consideration if the opinion holder cannot or will not make an effort to defend them rationally and objectively.

This is why there can be no “honest” differences of opinion over the scientific theory of evolution versus ideas like creationism or its bastard stepchild, intelligent design, because their proponents are either ignorant of, or choose to ignore, highly relevant facts.

Let me be clear: people are free, thanks to the First Amendment, to state nearly any opinion they want, however crazy or groundless it may be. They are not free from challenge or criticism. In fact, challenge and criticism are essential to anyone learning anything, ever. Should those critics be polite? Sure, but honesty and integrity are much more important.

In a certain lawsuit brought against me and a number of media companies, lawyers, and bloggers by a certain young lawyer who Shall Not Be Named, news of a new settlement has surfaced. Back in December, an apology of sorts appeared on the blog of one Martha Sperry, along with some none-too-subtle swipes at people who would dare to use their blogs to call things as they see them and fight against frivolous lawsuits (an earlier almost-retraction appeared in October 2011). Other legal bloggers have addressed this quite admirably–I would direct you to Crime and Federalism‘s take-down of her apology for some excellent commentary.

Sperry’s blog post, aside from demonstrating a remarkable unwillingness to stand up for herself, also includes commentary from a few of my co-defendants taking her to task. Her responses invariably return to “I have my opinion and you have yours, so can’t we all just have ice cream?” I’m paraphrasing. Here’s a bit of what she actually said:

At this point, the matter seems more about tearing things down rather than building things up. And I fail to see the point of that.

You are certainly entitled to your opinion and I honor that.

I don’t know Martha Sperry, and I am sure she has her reasons for curling up in a ball and whimpering in response to a frivolous, meritless, groundless, jurisdictionless lawsuit, whatever those reasons may be. Her most recent comments to her blog post suggest that she remains a defendant in the lawsuit by He Who Shall Not Be Named (which makes her post all the more puzzling). At the end of the day, I don’t care if she settles with the plaintiff, or if she sells off all the assets of her business, moves to the South Pole, and tries to live as a penguin. I only care to the extent that it makes fighting for my own First Amendment rights (and by extension, hers) more difficult.

I also only care to the extent that pretending that an acknowledgment that “different people have different points of view” counts as an argument. It is actually laziness of the highest order. I disagree with every fiber of my being that we should always focus on “building things up.” We should, however, always focus on truth. When our opinions do not help us come to a greater understanding of the truth, then they are worthless.

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Celebrating a Year of Censorship and Attempted Censorship!

This monkey wonders why people are such asshats to one another...The always-intriguing and entertaining Popehat has put out his nominees for the “Censorious Asshat of the Year,” and the field is indeed proud. I am of course reblogging this for reas0ns, but I invite my reader(s) to take a look at the whole list and marvel at the human capacity for inanity.

To those who would use our hallowed legal system to try to quiet the voices of  those who would dare to hurt their fee-fees, intentionally or not, I simply have this to say:

Photo credit: The Thinker… by law_keven on Flickr.

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“‘Wacky’ does not a successful libel lawsuit make.”

From the Wikimedia Commons

Did the astronauts of Apollo 17 take this photo, or was it Photoshopped using 1972-era technology? (Hint: the first option is correct.)

From the annals of silly lawsuit history comes the case of Bill Kaysing versus Jim Lovell, circa 1997. A handy timeline of the case is here.

You may Know Jim Lovell as the commander of the 1970 Apollo 13 mission, who was later played by Tom Hanks in the movie of the same name.

Bill Kaysing was a purveyor of moon hoax theories, and is often credited as starting the moon landing conspiracy movement. He was the author of books like We Never Went to the Moon: America’s Thirty Billion Dollar Swindle.

In 1996, after an encounter with Kaysing and some correspondence, Lovell was quoted in an article by Rafer Guzmán in Metro, a weekly Silicon Valley-area newspaper:

Speaking from his office in Illinois, Lovell said of Kaysing: “The guy is wacky. His position makes me feel angry. We spent a lot of time getting ready to go to the moon. We spent a lot of money, we took great risks, and it’s something everybody in this country should be proud of. His problem is, he saw that movie Capricorn One and now he thinks that’s really the way it goes.”

Eager to defend his legacy of bravely standing up to mountains of peer-reviewed scientific evidence, sued Lovell for libel on August 29, 1996, specifically for calling him “wacky.”

Keep in mind that truth is a defense to defamation.

Kaysing, who wrote a book called We Never Went to the Moon, filed what amounts to a nuisance suit against the astronaut last year following a Metro article in which Lovell called the writer “wacky.” Legal experts who were contacted agree that calling someone “wacky” does not a successful libel suit make. If anything, Kaysing’s wild accusation that Lovell is a liar who participated in a government conspiracy to fool the public is more harsh than being called wacky. (Source)

I don’t see how one can argue that calling a person “wacky” is anything other than a statement of opinion. I also don’t see how it is any worse than what Kaysing said about Lovell in the same article:

Kaysing considers Lovell almost a comedian. “He’s essentially a sort of comic Manchurian Candidate,” he says. “He’s been either brainwashed, hypnotized, programmed or whatever to present this spurious story of having gone to the moon.”

Is it defamatory to say someone has been brainwashed? Not particularly. Nor is it defamatory to call someone “wacky.” Fortunately a judge agreed and dismissed the suit on September 25, 1997.

It makes for a fun example of the limits of using the courts to fix your public image. If someone says you are wacky, demonstrate how they are wrong (if you can), or determine if you really are wacky and try to fix it. If you are a conspiracy theorist, public opprobrium from an establishment figure like an astronaut ought to boost your image among the conspiracy-minded. Unless someone has said something blatantly and demonstrably false that has harmed you, don’t ask the courts to fix it for you. Even then, it’s a tough row to hoe.

Bill Kaysing passed away in 2005. Since a deceased person has no cause of action for defamation, let me just say this: the guy was wacky. Wacky, wacky, wacky. He was also absurd, bugged out, crazy, daft, deranged, dotty, foolish, harebrained, idiotic, loony, nutty, odd, and silly. (Yes, I borrowed Eric Turkewitz’s thesaurus).

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Today really is the day that they’re gonna throw it back to him

Liam Gallagher is suing Noel Gallagher for libel. The two brothers were in Oasis, a band that was big in the ’90s, but I can’t remember which brother did what in the band. I never thought that much of the band. I honestly felt like listening to them made me simultaneously dumber and a bigger d-bag. Many, many people loved them for whatever reason, though. Anyway, they broke up, one or more members started new projects or solo careers, blah blah blah. Then one mouthed off about the other to reporters in July:

While the London press conference was set up for [Noel] Gallagher to talk about his solo career, it did not take long for reporters to ask about the state of his relationship with Liam.

The pair fell out two years ago just before a gig in Paris and have not spoken since.

“I had a sweepstake on how long it would take,” Gallagher laughs, when the first question was put to him just two minutes into the event.

The guitarist explains how the brothers’ row escalated after Liam cancelled their V Festival slot “because he had a hangover”, although the official reason given at the time was that he was suffering with laryngitis.

Oh, snap! A rock star was hungover before a show? That’s hardly implausible, but who knows what actually happened that specific morning? Anyway, fast-forward one month, and a lawsuit ensues:

Former Oasis frontman Liam Gallagher is suing his brother Noel over his claims the band once cancelled a gig because the singer was hungover.

Noel Gallagher told journalists at a press conference in July that it was the real reason why the band pulled out of the V Festival in 2009.

The official explanation at the time was that Liam Gallagher had laryngitis.

In a statement, he said he had “tried to resolve this amicably but have been left with no choice but legal action”.

“All I want is an apology,” he added.

I’m no expert on UK law, but I have to wonder if it is wise to involve the courts in a demand for an apology a mere two months into a dispute. Also, if your brother refuses to apologize to the point that you feel you have to sue, do you really think an apology will ever be forthcoming? These two don’t seem to have ever been a portrait of brotherly harmony.

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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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…and then there were 79

Two defendants in a certain lawsuit I have mentioned (in which I am also a defendant) have settled with the plaintiff for $5,000. From Eric Turkewitz’s blog:

Joseph Rakofsky, who sued 81 people and entities for defamation (including me), has settled his suit against two of them. The University of St. Thomas School of Law and one of its staffers, Deborah Hackerson, have paid Rakofsky $5,000.

A copy of the stipulation and release, obtained from the County Clerk’s office, is here: St.ThomasLawSettlement

University of St. Thomas School of Law, from newyorkpersonalinjuryattorneyblog.com

University of St. Thomas School of Law, from newyorkpersonalinjuryattorneyblog.com

Scott Greenfield noted:

Rakofsky graciously offered to settle the case with all of the defendants for the “nominal” amount of $5,000.  One would have thought that all the defendants laughed.  Obviously, not all.

It was silly, an extortion attempt by a child.  And they seized it.

What student could possibly go to a school that would pay off Rakofsky rather than tell him to go shit in his hat?  A chain is only as strong as its weakest link, and nothing could be weaker than to succumb to paying off Joseph Rakofsky.

At some point, someone at this school is going to be charged with teaching ethics.  How does a school so utterly lacking in principle do this?  It can’t, but I guess no one thought of that when it approved of its insurance carrier buying its way out.

Mark Bennett wrote:

By settling with Rakofsky, the law school and Hackerson have painted a great big target on themselves for anyone else who wants to file a frivolous lawsuit. (Hear that, disgruntled unemployed St. Thomas grads? File that lawsuit; they’ll settle for nuisance value!)

Most of the defendants are fighting Rakofsky. They’ve joined together in several groups to share resources and hire counsel—not just because they can win the suit, but also because fighting is a matter of principle: they are fighting for free expression, and for the First Amendment. Because if you give one schmuck like Rakofsky money instead of utter humiliation in court, every schmuck whose feelings you hurt is going to file a lawsuit against you, and you’re going to have to either a) join the happysphere and stop speaking the truth; or b) spend your life settling vacuous defamation suits.

I can’t really add anything to that. I hadn’t been expecting any news about this case for a while. The plaintiff’s attorney has withdrawn and the next hearing isn’t until September 15, when the court will hear Marc Randazza’s motion for admission pro hac vice. I also had not planned on commenting much on the case. It’s just not any fun anymore. Still, this news is disappointing.

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When “best interest of the child” meets the First Amendment

A Pennsylvania man has started a free speech debate, of sorts.

A bitter, divorced Pennsylvania man’s blog has triggered a free-speech debate, officials say.

Doylestown resident Anthony Morelli created his blog, ThePsychoExWife.com, in 2007 as a way to blow off steam about his ex-wife, The Philadelphia Inquirer reported Sunday.

But then his ex-wife, Allison Morelli, found out about the Web site and became very upset, calling it “heartbreaking” and potentially harmful to their 9- and 12-year-old sons.

At a June 6 custody hearing, Bucks County Court Judge Diane Gibbons ordered Anthony Morelli to take down the Web site and banned him from mentioning his ex-wife “on any public media” or saying anything about his children online “other than ‘happy birthday’ or other significant school events.”

At that point, Mr. Morelli did not stop posting, and the judge ordered that the site be taken down. Did this violate Mr. Morelli’s free speech rights? Many people believe it did, to the point that a campaign has begun to bring his website back:

We are asking for help in this defense because it is an issue that faces any parent that is divorced. Imagine a judge telling you that you cannot talk about your children on “any public media” – which would include things like Facebook updates, Twitter, or your personal blog – or you will lose custody.  Imagine the far-reaching consequences for bloggers everywhere if orders such as this one are left unchallenged?  There goes your online support group.  There goes your Facebook and Twitter updates.  Your website, personal OR commercial – ordered gone under threat of incarceration and having your beloved children removed from your custody.  This order flies in the face of our civil rights, and your civil rights, too! Imagine trying to protect your children from abuse and a judge telling you that you must hide the abuse and protect the abuser by not allowing you to talk about the abuse in public, we can’t let this stand.

While you're busy blogging, your children might be lost in a cornfield!

This does not appear to be a question of defamation, in that I don’t think the mother is specifically charging that statements on the blog were untrue, but rather that they would be harmful to the parties’ children if the children saw them. Most states, Pennsylvania included, follow the “best interest of the child” doctrine when determining child custody and orders relating to parenting. The question is, does the best interest of the children trump the father’s First Amendment rights?

I am very hesitant to support curtailing anyone’s freedom of speech and expression based on the extremely fuzzy “best interest” standards. In my experience, though, judges often place “best interests” above any rights of the parents, basic common sense, and the laws of gravity. Since I cannot directly review the blog in question, all I can say is that it seems to have contained some rather unpleasant stuff (just as anything at the forefront of a free speech debate does). I can see how the contents of the blog would be relevant to an ongoing custody case, since the nature of the parents’ relationship affects the children  on a daily basis. I can see a judge exercising some sort of review to make sure neither parent is defaming the other (in any medium, really). To issue a blanket injunction against most forms of communication with (or about) the children, though, does not sit well.

The blog seems petty, to me at least. Even if his ex-wife is a psycho, he is taking the low road. The point is that the low road ought to be his to take if he wants.

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