Above the Law has been sued by University of Miami law professor Donald Jones. Others are opining on the details of how the suit arose, but I’m here to tell you how I think it will (or should) end.
First, the back story: Prof. Jones was arrested on a misdemeanor charge of soliciting a prostitute. Above the Law picked up the story and, in its legal tabloid fashion, ran with it making him their “Lawyer of the Day” and publishing the police report. They did an update on the not guilty plea, and then followed up again with a post entitled “The Nutty Professor: A Commemorative Graphic.” He has alleged the graphic is racist.
He sued ATL for $22M for portraying him in a false light, invading his privacy and violating the university’s copyright on his faculty photo. (His claims are set forth in this Complaint.)
Others are opining on the merits of the suit and the First Amendment issues. The links to those posts are below. But I’m going to zoom right past all that and try to hit the crux of the case, why it was brought, and how I think it should be resolved without further litigation.
Prof. Jones, you see, has had the charges dismissed. Yet when you Google “University of Miami law professor Donald Jones,” up pops those ATL posts on the first page, since ATL has some pretty impressive Google juice. And nowhere are there any posts from ATL about the charges being dismissed, because that post hadn’t been written. So it’s pretty safe to say that Prof. Jones is steamed. Big time.
Jones has had his Google reputation pretty seriously impaired. If repairing that reputation was his true motive, then by bringing suit, he has taken one step toward fixing it. Blogs all over are covering the story and now everyone knows the criminal case was tossed. That solves one problem.
But it creates another problem, that of a law professor starting a lawsuit that might have some pretty dubious merit (see below). And that isn’t so hot if you’re working the law professor circuit.
Working under the assumption that what Jones truly wants is his name back, and not $22 million, then the resolution of this dispute would seem to be pretty straightforward.
First, ATL publishes an “oops” (assuming they knew about the dismissal). Not for posting the initial stuff, all of which is likely protected under the First Amendment. Rather, I’m going to guess that someplace in the pit of his stomach, ATL founder and editor David Lat probably feels that if he is going to skewer a law prof that was arrested in this manner, that he probably ought to update his readers with news that the charges were dismissed. That doesn’t go to any legal duty, but to human nature. It’s just the right thing to do. So it may be that a mea culpa is in order for not updating the story in a more timely fashion.
(Of course, if they didn’t know, that wouldn’t apply.)
Prof. Jones, it should be noted, also wants the old posts taken down. I don’t see ATL and Lat caving in to that demand. But, if they elect to write a new post updating the status of the criminal charges, then those old posts should probably have an updated link at the bottom referencing the new post. Bloggers run these types of updates all the time.
So I’m going out on a limb here to suggest that if ATL runs an update on the charges being dismissed with a mea culpa (if that part applies) on not telling its readers earlier, that would probably suffice. Since that is the type of update should probably be done anyway now, and there is no downside to ATL and Jones has his reputation updated.
On the flip side, if ATL makes a motion to dismiss (and I presume this is already being worked on) and Jones loses, he doesn’t look so hot as a law prof. So Jones has a pretty good motive to accept those terms.
And if the two of them want to talk this over in a local tavern, I’ll buy the beer.
Others opining on the subject:
- Law Professor Sues Above the Law Blog, Alleging ‘Viciously Racist Series of Rants’ (National Law Journal)
- Law Professor Sues “Above the Law” (Michael Krauss @ Point of Law)
- Law Professor Sues “Above the Law” blog; Time to go back to complaint-drafting school (Copyrights & Campaigns)
- Blog Sued: Above the law.com not above the law (Law and More)
- Lawsuit of the Day: Jones v. Minkin (Above the Law)
- Prof. Donald Jones’ Lawsuit Against Above The Law (Eugene Volokh @ Volokh Conspiracy)
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Update (11/4/09) Prof Jones has wisely dropped the lawsuit
Links to this post:
Marc Randazza, My Weird, Scary Hero
We’d have covered the lawsuit filed by University of Miami law professor Donald Jones against the legal gossip site Above the Law yesterday, except that we were busy. And everyone else got to it first. Suffice it to say that the lawsuit …posted by Patrick @ November 04, 2009 5:04 PM
LAW PROFESSOR SUES ABOVE THE LAW BLOG FOR “NUTTY PROFESSOR” POST
Parody image reference–with apologies to Jerry Lewis and Eddie Murphy. University of Miami law professor D. Marvin Jones —who made the pages of this blog when he was arraigned on charges that he allegedly solicited a hooker—is back in …posted by Blogonaut @ November 03, 2009 12:07 PM
The Jones vs. ALT lawsuit is, in my opinion, frivolous. No reasonable person reading any of the ALT posts would conclude therefrom that professor Jones is a “pimp” or a “drug dealer”–which is lynch-pin of the suit and the alleged ‘sting’ of the alleged wrongs.
I am a blogger, and the mere fact that this suit was filed has chilled my free speech. (Who wants to incur the expense of defending even a frivolous suit in Florida?)
I have a proposed resolution that holds high the baton of free speech that ATL has been implicitly handed in this marathon: If Jones moves the court to dismiss WITH PREJUDICE today (not tomorrow) then ATL agrees to forego Rule 11 sanctions.
Otherwise, Jones already looks like an illiterate boob who is not the brightest tool in the drawer (he asks the court for a jury trial on all “friable” issues and the look and feel of this complaint is less than professional) and when (not if) the case is dismissed, and the trial court holds that no reasonable attorney would have filed or maintained the action–Jones’ reputation as a legal ‘scholar’ will suffer far more damage that at the hands of the law student’s parody cartoonish Photoshoped image that transparently motivated the good professor to improvidently file this bull-shit lawsuit in the first instance.
An interesting aspect of the suit is that once ATL answers, Jones won’t be able to discontinue without getting permission from ATL.
But how will Professor Jones recover from the best of the blogposts analyzing the merits of his suit, Copyright & Campaigns’ “Time to go back to complaint drafting school”?
While a plaintiff seeking to recover for damage to his reputation isn’t under an obligation to ask that defamatory material be taken down or a retraction made before filing suit, typically when such a request has been made that fact is included within the complaint, along with the defendant’s refusal. It’s churlish not to give the other party the chance to make things right, and it makes the aggrieved look better that he did so if and when things come to litigation.
I’d assume that Professor Jones made no such request, since the allegation is omitted, EXCEPT:
The complaint really is one of the worst drafted I’ve seen. I thought that the commenters on various blogs saying it would be unacceptable work for a first year associate, or comparing it to a pro se prisoner suit, were exaggerating. Then I read it. It’s horrible, as well you know. Perhaps Jones did make a retraction request, and forgot to mention it among many other mistakes.
Without knowing a thing about the underlying arrest, I can say that Professor Jones deserves to have his reputation savaged for filing such a botched abortion of a pleading, in federal court no less. Really, on a matter of such importance I’d expect better from a 3L intern on the first draft.
But how will Professor Jones recover from the best of the blogposts analyzing the merits of his suit, Copyright & Campaigns’ “Time to go back to complaint drafting school”?
He won’t recover from that. But two things to consider:
1. Any one that Googles him 5 years from now will know that the charges were dropped; and
2. He can’t un-ring the bell when it comes to the Complaint that he should have known would be discussed widely and been ultra careful with.
Instead of looking backwards and what he did (and plenty of blogs are covering that angle), I’m trying to look forward to what he should do next.
And what he should do is figure out a way to bail out of this thing quickly. I’ve suggested a (partially) face-saving way to do it.
You’re a good man Eric.
Sadly, in these days of modern times, we live in a world in which one is better off as a brilliant sleazy lawyer, rather than a poor lawyer who observes the rules. Evil men prosper.
Witness: Eliot Spitzer has a sweet gig with Slate, while Professor Jones, whose charges will be the subject of ridicule until the internet is scrapped in favor of a new cybernetic system involving painful cerebral implants.
In any case, I doubt Jones reached out. The one time I dealt with David Lat over the tubes (a misunderstanding about hotlinking), he was quite willing to do the right thing. He struck me as a decent guy. I suspect he’d be willing to do the right thing by anyone, if asked rather than sued.
But when a suit is filed, over matters of honor rather than business or money, all bets are (sometimes) off. What motive does Lat (who has advertising injury coverage and therefore a free defense) have, now, to do a thing for Professor Jones, other than to move for dismissal of his suit and then to ridicule him further?
If my appraisal of personalities is correct, the time for Jones to have moved forward was before this suit got filed. Jones’ reputation is wrecked. Above the Law, now, has no reason in the slightest to publish a retraction or correction: Go straight to Rule 12(b)(6), and thence to Rule 11.
What motive does Lat (who has advertising injury coverage and therefore a free defense) have, now, to do a thing for Professor Jones, other than to move for dismissal of his suit and then to ridicule him further?
I’m actually not suggesting he do anything for Jones, but rather, for his readers. Updating the prior posts to reflect that the case was dismissed is the kind of thing that should be done simply because it is an important piece of information.
If my appraisal of personalities is correct, the time for Jones to have moved forward was before this suit got filed.
No question about that.
Jones’ reputation is wrecked.
True, but it was already damaged. He just did a lousy job of damage control.
The question for him now is whether he will let this suit fester and further damage his reputation, or look for some token (the prior posts being updated), and use that to call it a day.
Excellent analysis and recommendation, Eric. No matter what today’s pain is, online reputation for the future cannot be underestimated as a reason to take certain actions. I’m sure that Jones is in great pain over these events, but unless he has a non-law (maybe even a non-public) career alternative in mind, he better stick with the big picture. Hopefully he’ll take your words to heart. I can’t see why ATL wouldn’t adopt your suggestion for their part. Your suggestion is the right thing for an online journalist to do, and even a tabloid can show some class, at least when it caters to lawyers.
Gotta disagree with you bud. The problem is that you are assuming this prof is being rational. To me, the complaint comes off as a little, well, nuts. I mean do you know that according to the professor, you have committed defamation because you said he was arrested and the prof claims he was not? But anyone even slightly aware of the law of the first amendment would say that the incident report can be quoted without problem.
No, this professor seems to have gone off the deep end. If i was a federal judge, i would sanction him.
And btw, are we sure the charges were dismissed? the prof says they were, but he also says he was never arrested.
Btw, funniest thing in the complaint is asking for a jury on every issue that is “friable.” yes, he spelled it that way, with an f instead of a t.
The problem is that you are assuming this prof is being rational.
True, but if he is irrational, like Pants Pearson, then it doesn’t matter what anybody writes. He’s just an easy punching bag. But those types of posts are easy to write and don’t really amount to anything, so I’m taking a stab at rationality.
Btw, funniest thing in the complaint is asking for a jury on every issue that is “friable.” yes, he spelled it that way, with an f instead of a t.
Yeah, I saw that, and it has been mentioned by many. But I’ve had my fair share of typos over the years, especially when I try to self-edit. And I wouldn’t want anyone to flay me for one of mine.
There’s plenty to discuss on the substance (or lack thereof) without riffing on that stuff.
Before this lawsuit I had never heard of Prof Donald Jones or Above the Law. Now that I have heard of both I took the time to look up Donald Jones. This guy plays from a loaded deck. It has only race cards. If he picks up prostitutes that would be the most understandable thing about him. Jones should have kept a lower profile. His lawsuit brought more attention to himself then the post on ATL, and he is a person who looks bad when scrutinized. “The nutty professor is too cute to be an accurate description. He’s just a nut, and a racial rabble-rouser. Even if I thought he was innocent of soliciting prostitutes (and I do not think that at all) his own words and views condemn him for the jerk that he is.
Let me turn some of this racial talk around. It is really likely that the police made up a story about him offering $20 for sex, or it more likely that, faced with a black professor who has written extensively about how the authorities unfairly treat blacks, and in light of the national controversy generated by the arrest of notable black professor in Massachusetts (admittedly a much more questionable case) the police decided to drop charges rather than be caught up in controversy over such a minor charge. What the truth is I do not know. But anyone can make allegations. I think my theory is as good as the theories of Mr Jones.
He is an apologist for the OJ verdict. Go to http://www.pbs.org/wgbh/pages/frontline/oj/themes/ and http://www.pbs.org/wgbh/pages/frontline/shows/smith/closer/jones.html
Actually, the case ended pretty much as I SUGGESTED YESTERDAY–by unilateral dismissal by Professor Jones:
“If Jones moves the court to dismiss WITH PREJUDICE today (not tomorrow) then ATL agrees to forego Rule 11 sanctions.”
With al due respect, you recommended a stipulated disposition; the Professor (wisely) dismissed UNILATERALLY.
You suggested that ALT negotiate the disposition of this patently stupid case — and even agree to edit some posts.
Again, with all due respect, that is the difference between a ‘litigator’ (whose first instinct is to compromise) an a true trial lawyer (whose default positions is ‘lets pick a jury’).
Truth be told.
I didn’t say that ATL should edit the substance of any post. I indicated that they should:
1. Create a new post that shows the disposition of the matter. And that this wasn’t because they had to for Jones, but because it makes sense for the readers. And they have, in fact, done better than that by offering up the opportunity to Jones to write something. Not because they have to, but because it makes good blogging sense. If he writes it, you can bet it will generate tons of interest.
2. As to editing prior posts. just to be clear, I never said the substance of any post should be touched. But I did say that they should add a link to the bottom linking to the new post on the subject that updates readers as to the final disposition. Again, this type of update makes good sense from the perspective of readers.
If you read my post, you will see that I don’t suggest ATL do anything for Jones, but that they do those two things for the the readers (not really the readers of today, but the readers 3 years from now that stumble on the story.) But that type of updating also gives Jones a (partially) face-saving way to drop a lawsuit that was ill-considered to start with.
As to whether you think I am hard-nosed enough to tell someone to go stuff it, you can read this piece from one of the first internet defamation cases brought, where I defended a poster on an internet forum and did exactly what you suggest:
http://www.turkewitzlaw.com/cases/internet-defamation-cyberlibel-first-amendment.htm
I’ve probably picked 50-100 juries and taken many cases to verdict. So you’re preaching that tune to the wrong person.