With all due respect to the attorneys quoted in the piece, the story is a load of shit.  It paints the picture that you can and will be sued for posting anything negative about anyone or anything.  We understand that there is only so much space available for a story, but this one was so halfway done, that we question the article’s intent.  Newspapers are losing their grip on the dissemination of information, as blogs and citizen journalists deliver information to the masses.  It almost seems like the L.A. Times was trying to scare us all from encroaching on their turf – and that it must have consciously failed to complete the story.

The article quotes our friend Professor Eric Goldman, of Santa Clara University, as saying that someone can be sued for saying “My dentist stinks.”  Conveniently, this is the end of the quote – convenient because it supports the message behind the piece, i.e., don’t be mean to people and hurt their feelings by writing unkind things about them.  We’re sure that, if the entirety of Professor Goldman’s input were published, he would have gone on to state, unequivocally, that “My dentist stinks” would never carry the day in court.  In fact, in California, bringing such a frivolous suit would leave the plaintiff paying everyone’s attorneys’ fees, after getting hit with a special motion to strike pursuant to the state’s anti-SLAPP statute.  We’ve never seen Goldman shill for the “fraidy cat” contingent, and we bet our entire publication’s credibility that he didn’t do so this time.

Let’s break it down LS style, in case someone out there is now afraid to complain about how much her dentist stinks on yelp after reading the article.  There are two ways the statement “My dentist stinks” can be interpreted:

First is figuratively, i.e., “stinks” being an expression of opinion about the quality of service provided by the speaker’s dentist.  Such statements are not actionable.  Period.  This is an expression of an opinion.  People should not be afraid to express their opinions for fear of being sued.  Such a result would be a horrible manipulation of the justice system in the United States and an assault on the free speech principles that the Framers tried to make inviolate.

Although it’s absurd, let’s look for a moment at the literal meaning as well, i.e., “stinks” being a description of the odor that the speaker’s dentist has.  Again, at bottom, this is an expression of opinion.  The whole idea of which scents are good and which ones are bad is wholly subjective.  Stating that you think a particular person or thing “stinks” is merely a classification of your individual preference for another odor over the one associated with the described person or thing.  So, even using the literal meaning, the statement “My dentist stinks” can only be interpreted as a statement of opinion.  Accordingly, such a statement can never be used to support a legitimate lawsuit.

Even suggesting that the speaker’s dentist could sue is a dangerous thing.  Let’s assume that said dentist has a larger war chest than the speaker (probably true – if the speaker had any real funds, he would have gone to a better dentist in the first place).  Mr. Shitty Dentist will bring his lawsuit, because he read in the L.A. Times that it was a viable claim (far be it from his bottom-feeding attorney to try to talk him out of it), and the poor complaining patient is forced to hire his own attorney to defend his right to express his opinion.  Chances are, our defendant can’t really afford to litigate the thing to completion.  So what’s left?  Consent judgment.  Retraction.  What do you think the next patient who gets a bad filling will do?  Are you getting the idea that anti-SLAPP statutes are becoming more and more important?  Unfortunately, The L.A. Times fails to mention that a federal anti-SLAPP bill has been introduced in the House, or that it’s picking up sponsors, but really could use a stronger push from the public.

In case you’re not familiar, a Strategic Lawsuit Against Public Participation or “SLAPP” suit is the name given to the frivolous lawsuit brought by our dentist, not for the purpose of vindicating any real right, but instead designed to silence his critics and make an example out of them.  The unfortunate reality is, without some mechanism to prevent it, a moneyed plaintiff can afford to hire an ethically challenged attorney to bury the defendant in paperwork and discovery requests long before the merits of his case are decided.  As more and more people are given a voice on the Internet to express their opinion, the SLAPP suit is becoming a favorite tactic of companies and wealthy individuals who want to privatize censorship.  An anti-SLAPP statute is designed to prevent this abuse of the legal system, giving a financially disadvantaged SLAPP defendant a fighting chance of quickly dismissing the suit and recovering his attorneys’ fees incurred in so doing.

Bottom Line: the free exchange of ideas should not be prevented because a couple of people *might* get their feelings hurt.  If people end up keeping their complaints to themselves based on a fear that there is a lawsuit lurking in response to every email or discussion board rant, the marketplace of ideas will be forever diminished.  Unfortunately, for every hundred people who read the L.A. Times’ article, ten or twelve may keep their criticisms to themselves and thereby reinforce the power of the politeness police.

L.A. Times Reader

If you have something to say, and you are afraid of being sued, ask a lawyer for a pre-publication review of your comments.  Many lawyers provide this service cheaply, or sometimes free of charge.

Press for anti-SLAPP legislation.  First Amendment Bad Ass Congressman Steve Cohen (D-TN) has introduced a federal version of California’s successful anti-SLAPP statute.  Contact your representative and let them know you think this is a good idea.

This article was originally posted on The Legal Satyricon

Understandably, Paul and his campaign staff are a bit upset about the story.  It paints the picture of a college dropout who regularly participated in felonious assaults on women — one to which Kentucky voters may have a hard time relating.  In response, a spokesperson for the campaign has hinted that there may be a defamation suit in the works, and GQ’s Editor-in-Chief, along with the rest of the left, doing their best Glenn Beck impression, just want to know why there’s been no denial.  Why isn’t he answering questions?  Don’t we have a right to know?

In the week since the story was first published, the most salacious charges therein have been largely discredited, and only one question remains (at least as far as we’re concerned):  If the story was really false, can Dr. Paul prevail in a libel suit against GQ?  The answer to that question is not a simple “yes” or “no” — but hey, what fun would it be if it were.

Since Rand Paul is a public figure, he must successfully prove, not only that the statements in the story were false, but that GQ published them with knowledge of their falsity, or at least with reckless disregard for whether they were false.  This standard, which comes from the Supreme Court decision of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), is known by the term of art “actual malice.”  (Be on the lookout for upcoming dissents from Kagan about whether this should still be the standard.)  As you might imagine, this is a pretty difficult hurdle to clear, and as a result, most public figures don’t bother with the trouble, and as a result, we’re able to pass the time in the grocery store checkout aisle reading headlines about which Brangelina star is single-handedly fighting off the Masonic alien takeover plot that threatens to end all organized world governments.

The public policy involved here is a good one.  It should be harder for public figures to sue people and shut them up.  A public figure is in a better position than the ordinary citizen to answer an erroneous news item with an explanation, so unless the publishing entity is actively spreading lies, or isn’t even bothering to check whether something is a lie, there’s no foul.

Moving on with the analysis of the instant fact pattern, assuming for the sake of argument that the GQ story was false, under which circumstances would actual malice be present?  Again, for the sake of argument, let’s assume that GQ wasn’t aware that the story was false.  They had a source who claimed it was true; isn’t that enough?  Maybe.  Did they have two confirming sources?  I’m guessing no.  Personally, I roll my eyes at any news item based on *factual* accounts provided by a source that must, for whatever reason, remain anonymous.  Anyone who doesn’t realize that such garbage is, at best, propaganda should seriously consider euthanasia.  Does reporting on anonymous tips rise to the level of “reckless disregard for the truth,” I say “yes,” but I’m sure there are plenty who would disagree.

Don’t be confused, however, between the right that everyone has to remain anonymous, in criticizing or participating in public discourse, and the shoddy practice of quoting an anonymous source.  In the former, the speaker had better give some hard, verifiable facts before she should be given any credibility whatsoever.  The latter is, nine times out of ten, unforgivable deception that any reputable news outlet will avoid if it has any notions of integrity.  If the magazine you’re reading is citing anonymous sources, as long as you’re aware they’re probably printing lies, there’s no need to worry about it.  If you’re voting in elections based on that information, though, pay attention to this:  Anonymous sources in every state election commissions’ offices all confirm that the 2010 mid-term elections will be actually held on Wednesday, November 3rd.  See you at the polls then.

This article was originally posted on The Legal Satyricon

This 2 hour seminar will examine social attitudes toward law, lawyers, and legal institutions through the viewing and examination of Hollywood films.  Film depictions of law students, juries, and judges will also be considered.  Each seminar session will focus in as much depth as possible on a particular film or films and a particular problem or aspect of law, law practice, ethics, or the image and status of the lawyer in American culture raised by the film(s).  The majority of the films will be viewed outside the classroom and will be considered as texts providing contemporary depictions of the subject matter to be examined in class.  In addition, readings will be assigned for each film and will form the basis for class discussion.  The films will be reserved in the library.  This will be a paper course which may be used to satisfy the Upper Level Writing Requirement.

My understanding is that this course is just another excuse for chicks in law school to watch Legally Blonde (2001) for the 4,821st time.  What a great way to spend your tuition dollars at a professional school!

Normally, I’m not the one in this forum to bitch about the state of legal education.  Marco & Co. do it regularly enough that I don’t have to.  (See here, here, and here.)  On the whole, my law school experience was a good one.  I took as much advantage of our externship program as I could, and I went out of my way to take classes from adjunct professors who I knew actually practiced what they were preaching.  What I object to is courses that have students watch reruns of “L.A. Law” (1986), or other fictional portrayals, as a means for teaching about the practice of law.  Aren’t there other subjects that could be presented that have more merit?

One subject jumps quickly to my mind, and regular readers of this blog will recognize it immediately.  I would call it “Streisand 101,” taking its name from actress and singer, Barbara Streisand, who effectively demonstrated that simply filing a lawsuit can bring about the exact opposite result from what you hoped to achieve.  It would be a skills course, aimed at training young lawyers to talk their clients down from filing certain kinds of lawsuits — the kind that end up splashed all over blogs like this one, fueling negative publicity for the client.  The intent would be to teach how to 1) determine the unintended consequences of a particular cause of action; and 2) effectively communicate those consequences to the client, giving them the opportunity to back away before doing any real damage.  The primary pedagogical tools would be roll playing and reviewing news stories about past P.R. blunders.

Finding great teaching examples would be about as challenging as falling off of a log.  Just this week, outdoor clothing maker, The North Face (TNF), is in the news again, moving forward with their lawsuit against The South Butt (TSB).  (You can find my previous coverage of the case here.)  Before TNF filed their lawsuit, TSB had a whopping $5,000 in gross sales — after months of being in business.  Now, TSB’s selling that much every hour.  Their attorney claims that, with 14 new employees, TSB has created more jobs in its home state than the Obama’s $800 billion stimulus plan.  (Source.)

The only downside that I see to so educating the next crop of attorneys is that a huge source of entertainment will be snuffed out.  What will we read about for fun when Micheal Jordan’s attorney convinces him not to sue the people who congratulate him?

This article was originally published on The Legal Satyricon