The Chilling Power of Incredible Defamation Claims
Techdirt's Mike Masnick, one of the few bloggers who (along with Public Citizen's Paul Alan Levy and Simple Justice proprietor Scott Greenfield) dared to discuss Arthur Alan Wolk's defamation lawsuit against Reason, implicitly chides us for disabling comments on my recent post describing how the litigation was resolved:
Wolk also promised to sue us if we did not "correct" our post. Instead, we posted a direct reply to Wolk…and never heard from him again….
The Reason post…notes that just because the case has been settled, it "does not mean it never happened, so we are keeping our original posts and adding a link to the joint statement by Overlawyered.com and Wolk." Similarly, we don't believe that there is any benefit to taking down factual posts on historical events, even if they ended in an out-of-court settlement. In fact, we're a bit disappointed that Overlawyered would agree to take down historical posts without a court-ordered reason to do so. Meanwhile, the Reason blog notes that because it does "not want to see any further lawsuits filed as a result of comments on our site," it was disabling comments on that post.
We will neither remove historical posts nor disable comments. As we noted in our last post on Mr. Wolk's email to us, we believe his intent in these lawsuits and threats was to silence people from talking about him—and we do not intend to be silenced by such threats when they do not appear credible to us.
While Masnick's resistance to bullying is commendable, our experience with Wolk vividly shows that credibility, in the sense of a plausible legal theory backed up by evidence, is not necessary to drag someone into expensive, time-consuming litigation. The issue with comment threads, for instance, arose because Wolk accused us of inciting readers to defame him. The alleged defamation consisted of crude jokes that no reasonable person would take seriously, the point of which was to mock people whose first impulse when they see something that offends them is to file a lawsuit. Because the Hit & Run commenters were obviously not asserting any facts, what they said could not have amounted to libel (just as the 1983 Hustler ad parody cartoon depicting a drunken Jerry Falwell having sex with his mother in an outhouse did not amount to libel). Even if the comments had been defamatory, federal law shields websites from liability for statements posted by visitors. None of this stopped Wolk from suing us (along with the commenters themselves) over those remarks as well as our own blog posts. Hence our concern about comment threads getting out of hand and chewing up even more of our time and resources.
If you are curious about the basis for Wolk's other claims, you really should take the time to look at his July 26 complaint (PDF), which rewards close study. It names 40 or so defendants, including pseudonymous commenters such as "Barely Suppressed Rage," "Latter Day Taint," and "Not Arthur Wolk." That last one had me imagining an Abbott-and-Costello-style scene in which a process server attempts to let "Not Arthur Wolk" know he has been sued:
Process Server: Are you "Not Arthur Wolk"?
Man: Yes, I am not Arthur Wolk.
Process Server: You've been served.
Man (looking at papers): Wait a minute. I am not "Not Arthur Wolk."
Process Server (puzzled): So you're Arthur Wolk?
Man: No, I'm not Arthur Wolk.
Process Server: You've been served.
And so on. But I digress. The complaint includes 34 counts, some of them highly creative. According to Wolk, saying mean things about him online constituted not only libel but also "Conspiracy to Engage in Internet Bullying," "Harassment by Internet," "Internet Stalking," "Invasion of Privacy," "Intentional Infliction of Economic Harm," and "Intentional Interference with Contractual, Actual and Prospective Business Relations." My three favorites: "Theft" (because "the defendants have conspired in the name of their perverted sense of nonexistent Constitutional protection for libel, and furtherance of their bizarre reactionary political goals to steal the plaintiff's life and profession from him"), "Conspiracy to Commit Assault" (because "defendants knew or had reason to know that their continuing conduct would cause severe injury to the plaintiff"), and "Extortion" (because "the defendants are attempting to extort something of value from the plaintiff, his reputation, to enhance the visibility and credibility of their websites and to use that destruction as a means to obtain more illegal tax deductible contributions").
The complaint says "the damages suffered by Wolk have been horrific." For instance, he "does not sleep," he "does not show his face at Bar functions," and he "now must carry a gun to protect himself from the nut balls who are incited by these defendants all with the sole intention of causing the lunatic fringe who are devotees of these defendants from [sic] doing him bodily harm." It is no wonder that Wolk worries about "nut balls," given the brave stance he has taken against the vast conspiracy bent on taking him down and destroying the American justice system:
Defendant Reason.com…is one of the mouthpieces for Overlawyered.com and its mentors, Manhattan, Cato and Enterprise, which are co-conspirators, and is the attack dog for inter alia, The Reason Foundation, a euphemism for the policies and goals of the Libertarian Party, a right wing fringe element that espouses what amounts to an abandomnent of the institutions of our Republic and its substitution with a Govermnent by putative journalists, self appointed intellectuals and right wing pundits but whose real goal is to work with Overlawyered.com and Olson, Frank, Manhattan, Cato and Enterprise, and their respective trustees to assassinate the character of individuals chosen for that purpose because they are a threat to the America without laws Reason Foundation wants. Reason Foundation raises funds for their anti-consumer, anti-Government, anti-court, anti-judge and often anti-Semitic, anarchistic views by proving to their donors how vicious they can be on their various media sites including Reason television, Reason.com and Reason magazine. Reason.com attempts to accomplish these ends by re-publishing with new commentary publications of Overlawyered, Frank and Olson for the purpose undermining the civil justice system in the United States, by forming an Internet tag team so if one of them is silenced for their falsity, the other simply republishes with more false and defamatory comment to keep the libel alive. The idea is to whip up a frenzy to prove their dedication to the causes of the Libertarian party, much like the Nazi's of the early 1930s, which will cull more donations from their very rich donors and blind them to the dangers to American institutions of their radicalism. It is believed and therefore averred that employees or agents of Reason.com are the anonymous bloggers.
These outlandish accusations are a more florid version of the theory set forth in Wolk's October 22 complaint (PDF), which avers that we "joined a conspiracy to destroy the good name and reputation of Wolk by inciting a feeding frenzy of internet defamation for the sole purpose of destroying Wolk's reputation and advancing the political and social agendas of Reason," i.e., "tort reform legislation and antiplaintiff, anti-trial lawyers agendas." To back up that conspiracy theory, the complaint cited hyperlinks between websites as evidence of a "co-partnering relationship"—a method that may ultimately implicate the entire World Wide Web in this plot. Although the conspiracy is imaginary, Wolk's outrage at it resulted in a year of costly legal maneuvering, during which we were repeatedly pressured to settle the case by agreeing to censor ourselves. The pressure came not just from Wolk but from a legal system that focuses more on making cases go away than on addressing their merits. Ultimately, Wolk backed down, which is a vindication of sorts for the defiant strategy recommended (and practiced) by Masnick. But while he was never actually sued, we weren't so lucky.
Last month Paul Alan Levy, who was sued (briefly) by Wolk but admirably resisted his "campaign of intimidation against anybody and everybody who reported in unfavorable terms about his litigation," asked, "Has Arthur Alan Wolk Finally Learned That He Cannot Sue Every Critic?" Unfortunately, this is the sort of question you have to ask if you are trying to assess the odds that you will be sued for saying things that reflect negatively on thin-skinned rich people, even when they are not defamatory. The answer has nothing to do with the truth of what you say or the likelihood that the person you offend can actually win his case if and when its merits are finally addressed. In short, credibility does not enter into it.
Again, we are glad this litigation is over and would like to get on with our other work, so we ask readers to exercise self-restraint in their comments so as to forestall any more claims that we are inciting others to libel.