I just caught a case of alleged defamation. This one is square in the world of politically charged blog comment flame wars. A friend of mine is active in the Architects & Engineers for 9/11 Truth movement. While I’m willing to bet we don’t have all the information on what happened that day (why building 7 fell when it wasn’t hit by an airplane for instance), I don’t consider myself a “truther.” But, that’s not the subject of this post. The line I’m interested in now is the line of when we, as lawyers, should get involved in the flaming blog comment debates on this, or other hot topics.
My client has been active in this political space for several years under a pen name. A while ago, his arch-rival published his private information including home address. This was quickly taken off the site. Recently, on a different site, my client’s arch-rival “outed” him again, but erroneously. The arch-rival stated that my client was someone he isn’t. Of course my client isn’t happy about being outed, outed incorrectly, and associated with views he doesn’t share.
When I made the notes it read like a law school exam hypothetical for torts or 1st Amendment class.
My initial gut-check reaction is “if you can’t stand the heat, stay out of the kitchen.” People who engage in heated political debate usually understand that things get ugly fast. Heck, I’ve been called all kinds of names on legal blogs (indirectly because my name wasn’t used). Some of those really tempted me to get into the fray, but eventually just made me smile to myself and be sad for the people who can’t engage without name-calling. And, one would think if lawyers can’t engage in civil debate online, why should we expect any more from the average Joe posting on a conspiracy blog?
Then I read the posts naming my client. Then I re-read the law. Colorado actually has a criminal defamation statute. The post in question specifically targets my client, who is known to live in Colorado by the guy writing the post. Yes, it’s a political blog, but my client is a private person and the posts trash my client’s professional abilities.
Legally, I think my client has a good case.
What should we do?
It seems that almost any letter initiating or threatening legal action of any kind will find its way to the internet, at least on JD Supra and on any number of watchdog sites. It’s happened here on Lawyerist, and I’ve used this tactic offensively myself in the iFart v. Pull My Finger trademark litigation. Posting letters from lawyers that overstep is almost required these days, so I need to be very sure that any letter I write is something I’m willing to stand behind personally, morally, and ethically—not just legally. It seems that many lawyers stop with the legal standard. If they even engage in the ethical standard, they allow the diligent representation requirement to give them permission to send dumb letters under a short-term analysis of what diligent representation means. They fail to look at the bigger picture.
I have to look at the big picture. This is not just about my client’s reputation; it’s about my reputation too. This is even more important to me when you consider that we’re talking about hot political topics and conspiracy theories.
I don’t take a position on the substantive issue of if the towers were brought down in a controlled demolition organized by some secret organization or a faction of the Bush administration. I want to remain neutral in that while still helping my client accomplish a goal in his long-term benefit. Yes, he gets to define his long-term interest—but it’s my job to examine this in a context beyond the post in question and not go off half-cocked and probably make the situation worse.
What will we do?
We’re going to write a letter to the administrators of the blog. It will be written with the assumption that it will be posted on the blog in question, and my client has told me he plans to post it on his blog. We’re going to ask for a reasonable remedy, not something asinine. We’ll avoid a threatening tone, opting instead to identify the situation as objectively as possible in a tone of healing the conflict instead of escalating. In short, we’ll take the high road.
Maybe this is a naive approach. I could definitely make a lot more money if I escalated the conflict by writing like a jerk. I’m betting you’ve seen some lawyers needlessly escalate conflict (perhaps motivated by self interest….) in what should be a direct violation of ethics standards, but is generally written off as “diligent representation” as the industry turns it’s head.
Where is the line for blog comment flame war defamation?
It depends. It’s shifting in every case. The black-letter law of defamation does a pretty good job filtering the wheat from the chaff in most cases. Unfortunately, defamation laws were developed in an era when people didn’t have the ability to publish reputation-damaging material to the world with the stroke of the “enter” key. I believe standing defamation laws have inherent practical issues of jurisdiction and actual recovery. There are probably millions of actionable defamatory blog comment posts every day. Is that how it should be? Some say “yes.”
I talked with Jason Jones, former lawyer and editor of the internet marketing watch-dog blog saltydroid.info about this topic. Jason and I don’t agree on everything, but I definitely respect his knowledge and experience in this area. Jason rests firmly in the “if you can’t stand the heat, stay out of the kitchen” camp of blog comment debate. Jason made a point to agree that while it’s possible to defame at the stroke of a key, it’s almost as easy to mitigate any damage. Jason also likes the idea of a new cause of action relative to this type of defamation that requires the plaintiff to show a minimum level of damage before filing a defamation claim.
He’s also of the opinion that most non-lawyers will back down from legitimate political (or other) speech when they receive a threat letter on legal stationery. And, Jason is quick to point out that many of the alleged defamatory posts happen after a series of escalating and inflammatory posts on the part of multiple parties, until someone’s feelings get hurt—until someone crosses some line.
Here’s my favorite quote from my conversations with Jason.
“In a truly transparent world a liar will always be outed as a liar anyway. And if everyone felt secure speaking freely, the whole world would change.”
Are we chilling free speech?
So, where is the line?
The art of being a lawyer in this area is having the courage to look beyond the black letter of the law relative to a specific post and put the entire situation in the context. In this area, I think it’s fair to say that the prima face case of defamation is only the beginning of the analysis.
This is a developing area of cultural engagement. Where do you draw the line?