Jun 212010
 
 June 21, 2010  Posted by  Court, Featured News, Online

As a pseudoanonymous blogger and privacy advocate, I’ve occasionally blogged about the use or abuse of legal process to unmask anonymous bloggers or to silence critics (cf, the “Stokklerk” case, the attempts to unmask critics of a development project, the A.Z. v. Doe case, and the HipCheck16 case). Despite some progress made, most notably in the application of the Dendrite standard by some courts, individuals and their lawyers continue to use or exploit the legal process in an attempt to silence critics. The ridiculous legal threats and lawsuit against PogoWasRight.org by Dr. Lillian Glass illustrate why we need greater protections from misguided individuals and their lawyers.

Background

In January 2008, I wrote some blog entries that were very critical of some “media psychologists” for their statements about a celebrity who was experiencing what appeared to be significant mental health problems. I blogged about the celebrity’s right to privacy, what the ethical standards for psychologists say about offering psychological opinions of people you’ve never assessed, why I thought Glass’s conduct was particularly egregious, and the exemption granted by California and the American Psychological Association that allowed Glass and a few others who are not licensed psychologists to call themselves “media psychologists” (most media psychologists are licensed). Both the California State Board of Psychology and the APA would shortly thereafter take some small steps to address media psychologists’ compliance with the ethical standards.

Threat Letters Arrive and PogoWasRight.org Takes the Fight to Them

In June 2009, more than a year after the posts were written, I received an absurd threat letter from Glass’s lawyer in California, Martin E. Jacobs. Wondering idly whether the statute of limitations had become merely advisory, I was surprised to read that not only had I allegedly defamed Glass and shown “malice” by writing “Google cache is not her friend,” but I had supposedly invaded Glass’s privacy because Glass’s therapist allegedly revealed Glass’s “intimate issues” in a comment or comments posted under the blog. After reading the letter through twice, I didn’t find a single claim against me or the blog that I thought had merit. I did go back and edit one blog entry’s title to make it clear that I was referring to verbal stones and not physical stones, but only because I hadn’t anticipated a physical construction of the title and thought clarifying that would be the right thing to do now that it had been brought to my attention, even if I didn’t’ believe that anyone would wait a year and a half to express their concern if they were really worried by it.

But if the purpose of the letter was to intimidate me into removing the blog entries and comments, it failed miserably. As the blog’s privacy policy clearly states:

If you send any legal, quasi-legal, or just downright nutty threats via email, do not expect any privacy of your email. Please note that I do not scare easily. I have kids, and there’s nothing you can threaten me with that will even come remotely close to scaring me as much as the day they both got their driver’s licenses.

I might have been wrong, but Jacobs’s letter had read like it was written by a family lawyer or a lawyer without serious knowledge or experience with online defamation cases and appeared to be no more than the threats of a puffed-up schoolyard bully. The second threat letter was no more effective in intimidating me, even though they indicated that they knew my identity and I would be unmasked when Glass sued me if I didn’t accede to her demands. Rather than intimidating me, the second threat letter convinced me that this was an attempt to chill speech and that the blog would not be bullied.

Restraining my first impulse to just send a suitably snarky reply to Jacobs, I contacted the Electronic Frontier Foundation (EFF), who offered their support and assistance.  Because of EFF’s help, I was vigorously represented in California  by the law firms of  Colette Vogele and Gregory Rutchik.  Thanks to Jacobs having asserted twice that I would be (not might be) sued, my lawyers were able to file a Jane DOE suit in federal court for declaratory relief and judgment [Complaint and Exhibits A-D (pdf, 31 pp), Exhibits E-J (pdf, 31 pp)].

Litigation on Both Coasts

Now facing probable (if not almost certain) legal defeat in California,  Glass switched coasts and served me with a summons with notice in New York for defamation, naming me in the summons and seeking $1 million. The actual complaint never got filed, so it’s anyone’s guess how they would have tried to get around the statute of limitations and other serious obstacles they faced. Glass’s east coast lawyer was Peter D. Raymond of Reed Smith.

Reed Smith is one of the largest law firms in the country. It participates in the Defense Counsel Section of the Media Law Resource Center, which has this requirement for membership:

Since membership in the Defense Counsel Section is limited to “Defense Counsel Only” we feel it is appropriate to request that each proposed member firm [list their media clients (or a representative sampling of same), and] confirm that it does not represent plaintiffs in libel, privacy or related actions, at least in actions against media defendants and/or journalists.

_____ No, neither I nor my firm represent plaintiffs in libel, privacy or related actions.

Despite assurances given, Reed Smith represented Glass against this blog. Do they not consider blogs “media defendants?” I have no idea why they would represent anyone against a blog in a defamation action and file a notice and summons that would unmask a previously pseudoanonymous blogger, but I think their conduct was shameful.

Because the blog was now involved in litigation on the east coast as well as the west coast, the Electronic Frontier Foundation assisted the west coast team in locating local counsel for the New York case, and I found myself with a number of great law firms and organizations who expressed interest in representing me. For the New York case, I was represented by Kurt Wimmer and his colleagues at Covington & Burling. Covington & Burling is also one of the biggest law firms in the country. Like Reed Smith, Covington & Burling participates in the Defense Counsel Section of the Media Law Resource Center. Unlike Reed Smith, Covington & Burling actually defended the media in this case.

Kurt Wimmer has been rated one of the best lawyers in America for a number of areas of law including First Amendment law and media law, and was recently honored by the Reporters Committee for Freedom of the Press for his efforts to get a journalists’ shield law. Having been fortunate enough to be represented by him, I can see why he is so highly regarded. Thanks to the great support of EFF, I truly had a legal “dream team” on both coasts who worked beautifully together, and Glass wound up dropping all claims on both coasts with prejudice.

But I shouldn’t have had to go through any of that as the case was a non-starter from the get go.

PogoWasRight.org was able to fight back and would have litigated rather than make any concessions to what seemed to be an attempt to chill speech. Could prolonged litigation on both coasts have cost me dearly financially? Undoubtedly, and another blogger might have given in rather than risk financial ruin defending against a ridiculous lawsuit.

While the threats and lawsuit in this case are easily condemned, condemnation is not enough. What protects the next blogger who may have fewer resources than PogoWasRight.org from similar litigation for engaging in protected speech? What additional protections or standard do we need or what penalties do we need for misguided plaintiffs or their lawyers who might use or misuse the legal system this way?