Should Streisand Warnings Join Miranda Warnings?

Apropos Tuesday's post "Are Employment Lawyers Disclosing the Reputational Risks of Litigation to Their Clients?," Krista Lee Baughman (Dhillon Law) writes about a similar question related to libel law. (Baughman is a prominent libel lawyer, see, e.g., Starbuck v. Meta Platforms, the new Large Libel Models lawsuit.)

[A]s a defamation lawyer, one of the (many) things I flag for clients in the very first consultation is the risk of the "Streisand Effect" if they make their complaints public, along with the fact that their names will forever be tied to their case when they are subject to a background search and potentially also a Google search if the matter gets press. I also flag the possibility that, in cases where the defendant has postured themselves publicly as a "social justice warrior," then even the demand letter we send might be made public by the defendant, e.g. via a social media post claiming that the defendant "spoke up and now is being pressured to abandon their free speech rights," etc.

I think these are essential points to raise in early calls with would-be defamation clients, even if you end up talking yourself out of a job, and I'd counsel employment lawyers to raise the possibility with their clients as well.

I hope other lawyers do the same.

Comments

[ah....Clem]

"You have the right to remain silent. Anything you say publicly can and will be repeated all over the internet for the entire world to see."

(Hat tip to Mike Masnick for inventing the term "Streisand effect")

[Purple Martin]

Tangentially...

Dance like on one is watching. Email like you'll someday be ordered to read it aloud in a recorded deposition.

[Bubba Jones]

"even if you end up talking yourself out of a job"

There are a lot of lawyers who don't have this luxury.

[CommentMonkey]

It's a necessity, not a luxury. Bad cases are much worse than having too little work, both from a mental health and financial perspective.

I think most lawyers - at least litigators - would agree that they have more regrets about cases they shouldn't have taken, or shouldn't have taken without better managing client expectations on the front end, than any other professional mistakes. That is certainly the case for me.

[ReaderY]

It seems that there are plenty of lawyers perfectly willing to take clients’ money to lose cases knowing from the beginning that they are going to lose.

[ReaderY]

An old Rumpole of the Bailey episode comes to mind, S3 E2, Rompole and the Golden Thread. Rumpole is hired by a party leader in the fictional former British African colony of Naranga to defend against a charge of murdering a prominent clergyman. He arrives to find his client in good spirits, well taken care of, with the guards strangely aloof and not interfering very much. Rumpole learns he was hired to make a big speech about the rights of defendants and not make too much of a defense. His client is confident that members of his tribe, inspired by a spirited defense speech, will find a way to spring him out of jail.

Instead, he investigates. He learns that his client is secretly married to a member of a rival tribe. The marriage was kept secret because of a culture of bitter tribal conflict in which such a marriage is anathema. He was with his wife at the time of the murder. Rumpole brings the wife into court to testify. The audience gasps. His client is immediately freed.

And very shortly after being freed, the client is killed by his own tribesmen, the very people who would have sprung him if he had been convicted with his secret intact, for treason against the tribe for having such a wife.

[tuphat]

I generally like Rumpole, but here he essentially gets his (innocent) client killed. Not very good lawyering, imho.

Wondering if She Who Must Be Obeyed would approve.

[Bored Lawyer]

You should give the Streisand warning. But in song. One of Babs' songs.

[Ridgeway]

Memories?

[David Nieporent]

Has anyone asked Barbara Streisand for her thoughts about the Streisand Effect?

[cannpro]

If you win a defamation case can you seek damages for the Streisand effect, since the defamatory speech was communicate even further as a result of the suit?

[Bill R]

Yep,
https://reason.com/volokh/2025/05/05/nearly-2m-award-upheld-for-former-college-tennis-coach-who-sued-over-rumor-of-improper-sexual-relationship-with-player/

[Tom Smith the Lesser]

I think not, at least not with that case as your precedent. There the salacious rumor spread was by parties other than the plaintiff. That rumor spread was foreseeable by the defendant. Here it is the action of plaintiff in filing suit that is the proximate cause of the spread (of the complaint on the Internet)

[Tom Donahue]

I once worked in the law department of a very large US corporation, with many T14 grads, federal appellate and even Supreme Court clerks, and still had to introduce and explain the Streisand Effect many times. Given that history, I'd wager most attorneys (other than the very online types who read things like Volokh) have no idea.