February 4th, 2015

New York Needs More Robust Anti-SLAPP Legislation (Op-Ed)

This piece I wrote appears in today’s New York Law Journal. [Brackets] refer to endnotes in the original, and I’ve added some links:

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I’ve now been sued twice for defamation over postings I’ve made on my law blog. And you know what? It sucks.

On both occasions, I was reporting on what happened in a courtroom, on cases I was not involved with either as counsel or litigant. And on both occasions judges tossed the lawsuits in the pleadings stage as the suits assaulted my right to fairly report and comment on judicial proceedings.[1] You can’t (successfully) sue people for reporting on what transpired in court, or for their opinions on what happened.

But, you know what else also happened twice? Despite both cases being utterly without merit, and both cases aggressively acting to discourage free and robust newsgathering and discussion, both plaintiffs were able to walk away while I was forced to spend enormous time on my defense including preparing documents, hiring counsel and wrestling with my insurer.

When empty lawsuits are used to retard free speech, all writers suffer.

This problem affects institutions above me in the pecking order of journalistic influence (traditional media) as well as those below (anonymous or pseudonymous commenters in countless Internet forums).

For example, in Rakofsky v. Washington Post, et al., I was part of the massive “et al.” [2] that included about 80 other lawyers, law firms, media companies, and John Doe/pseudonymous defendants. It seems that one Joseph Rakofsky, a neophyte New Jersey lawyer, went down to Washington D.C. to lead a murder defense. Except that he had never tried a case before. Of any kind.

The trial didn’t work out so well for Rakofsky or the client. The judge declared a mistrial partway through, and said (among other things), that it was “readily apparent” that Rakofsky’s performance was “not up to par under any reasonable standard of competence under the Sixth Amendment,” and “below what any reasonable person could expect in a murder trial.”

After The Washington Post wrote the story up, so too did many law bloggers, of which I was one, as well as the ABA Journal, Reuters and others, giving a variety of perspectives and adding depth to the already-reported story. Rakofsky sued so many people and companies that discussed what happened that the suit was instantly dubbed Rakofsky v. Internet. [3] Ultimately it was dismissed, since writers were relying on what transpired in court, or how Rakofsky presented his skills and qualifications on his websites. But there were no sanctions for his efforts to try to quash free speech.

The second suit, reported on the front page of this newspaper on Jan. 2, 2015, involved orthopedist Michael Katz. Dr. Katz had conducted a defense medical exam in a personal injury case (not one of mine). I found out that Queens Supreme Court Justice Duane Hart had repeatedly called Dr. Katz a liar in open court regarding his testimony. I then had the audacity to use my blog for original reporting on the subject, as well as offering my opinions on its significance.

Dr. Katz sued me. Once again the case was tossed at its initial stage, and once again there was no sanction for a litigant trying to suppress free speech by means of a lawsuit. [4]

But make no mistake about this, bringing hollow lawsuits that can’t even state a claim, and that clearly violate the robust freedoms ensconced in the First Amendment and fair reporting laws, have a chilling effect on others. While I continue to write about issues that I find important, there is no doubt that others hold back, fearful that they will be sued in order to intimidate them from writing, if that writing is critical.

Did I say that this affects writers? Well it also affects readers, who are deprived of the news and opinions that have been fearfully withheld.

Lawsuits to silence critics, such as these two against me, are called Strategic Lawsuits Against Public Participation, or “SLAPP suits.” They have become so common, with clearly significant free speech repercussions, that many states now have powerful anti-SLAPP legislation that stop the suits cold and award costs and attorneys fees to the victims.

According to Harvard University’s Berkman Center for Internet & Society, 28 states have anti-SLAPP statutes. [5] Unfortunately, the one for New York is exceptionally limited, and applies only to permits and applications in the real estate context. [6] It does not protect free speech in the abstract.

But legislation is pending in both the Assembly and Senate that would ameliorate that unnecessary limitation, and hold litigants and lawyers accountable for attempting to restrict the rights of others to speak and write freely. [7]

While some suits would nevertheless continue with pro se litigants, lawyers would be on notice that attempting to use litigation as a cudgel upon which to exert free speech concessions would backfire. Both litigants against me, it’s important to note, were represented by counsel. And both lawyers must have known that the suits were doomed from the outset.

This is, thankfully, one of those issues about which there is no partisan divide. Vexatious litigants trying to silence others are not part of any political party. The chilling effect such suits have on free speech effects us all equally, from the most prominent newspapers to the most casual individual looking to discuss the issues of the day.

In 2008, both the New York Senate and Assembly took a big step forward when they unanimously passed the Libel Terrorism Protection Act, which protects us from lawsuits in foreign jurisdictions that don’t have the same free speech protections as the First Amendment. [8]

The Legislature should be able to rally around this anti-SLAPP bill in the same manner, and protect the First Amendment rights of all New Yorkers.

Endnotes:

1. New York Civil Rights Law §74.

2. 2013 NY Slip Op 50739 (2013).

3. Scott Greenfield, Simple Justice, http://blog.simplejustice.us/2011/05/13/rakofsky-v-internet/, May 11, 2011.

4. Katz v. Lester Schwab, Dwyer & Katz, et al., 153581/2014.

5. http://www.dmlp.org/legal-guide/state-law-slapps.

6. Civil Rights Law §70-a and §76-a.

7. S1638-2015 and A258-2015; also, S1539-2015.

8. Matthew Pollack, New York Strikes Back Against Libel Tourism, http://www.rcfp.org/browse-media-law-resources/news/new-york-strikes-back-against-libel-tourism, Reporters Committee for Freedom of the Press, April 1, 2008, last viewed January 25, 2015.

January 8th, 2015

Je Suis Charlie

Translation: Mohammed overwhelmed by fundamentalists
Bubble: It’s hard to be loved by idiots

Two of the cartoons on this page are caricatures of the prophet Mohammed. Before yesterday, I couldn’t imagine circumstances where I would publish them, both because this blog doesn’t deal with religious issues and because such caricatures are offensive to Muslims.

I just don’t run around looking to insult the religious beliefs of others. To each their own, so long as it doesn’t impact others.

But I also write and publish and enjoy the magnificent freedom of speech. I’ve been discussing that subject a lot recently, though that was due to attempts to silence by force of law, not guns.

There’s no doubt that the horrific assault yesterday on the sharply satiric French political magazine Charlie Hebdo is not just an assault on all writers, but an assault on all that believe in free speech.

It doesn’t matter if we approve or not of the content of the magazine’s speech. That has nothing to do with the right to publish it.

What if we allowed ourselves to be intimidated into silence by force of guns on the subject of religion? What other subjects would be next? And who gets to make those decisions?

If we do not stand up to people now that wish to take away the fundamental right to express opinions, then when will it happen? And if not us, who then?

The answer to speech with which we disagree is more speech, not less.

Translation: “I am the prophet, asshole!” “Shut up, infidel!”

I think that the vast majority of Muslims are appalled by what has been done in their name. And now, because a small group of people have bastardized their religion, they see these depictions getting widespread dissemination.

We must, however, choose between the lesser of two evils. Do we remain silent in the face of violent attempts to censure, or do we speak out and insult perfectly innocent people in the process?

But there seems to me to be little alternative other than to stand up to evil, and the sooner the better. I suspect that those innocent Muslims know this all too well, as the militants within their religion may have killed thousands of Jews, Christians and Hindus around the world, but mostly they have killed their fellow Muslims. And done so by the millions.

The slaughter yesterday, and the need to respond, reminds me of a poem:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

Let’s hope that the pen is indeed mightier than the sword. You can see a wide selection of cartoon responses compiled here and here. But this is the one that I will close with, from Philadelphian Rob Tornoe:

January 5th, 2015

Things Get Worse for Dr. Michael Katz…(Updated x2)

Samson Freundlich with New York Law Journal front page story: Criticism of Doctor was Protected Speech, Judge Finds

So there’s the story, as the feature on the front page of Friday’s New York Law Journal: Justice Cynthia Kern‘s decision throwing out the defamation case Dr. Michael J. Katz stupidly started against me and my co-blogger Samson Freundlich.

I previously blogged about this dismissal, but now it’s front page news. (NYLJ: Criticism of Doctor Was Protected Speech, Judge Finds)

And if the whole legal community didn’t already know that Justice Duane Hart had eviscerated Katz by repeatedly calling him a liar, they surely know now.

The story also introduces a new term to the legal lexicon, boneheaded, as in, this was a boneheaded suit to bring. That was the quote the paper elected to use:

Turkewitz said he was disappointed of the deep reluctance of judges to find cases frivolous and impose sanctions. “This was a really bone-headed lawsuit to bring, and all it did was make Dr. Katz look even worse,” he said.

Now I think that boneheaded should be one word, and not hyphenated, but lexicography isn’t my long suit, and I suppose that is a digression for another day.

While I was disappointed that Katz and his lawyers weren’t sanctioned, it’s clear to me that rebroadcasting in this suit the lacerating remarks Justice Hart made about Katz was one of the dumber moves I’ve seen in my 28 years practicing law.

And now, due to the prominence of the story, the legal community also knows that it was the Nassau County firm of Ruskin Moscou Faltishek that led to this debacle. Well played, gentlemen, well played.

Readers are left to guess for themselves why a firm would elect to start a case it must inevitably lose that also embarrasses the client.

Update (1/5/15): Forbes now has the story also: Personal Injury Lawyer Gets Personal About Lawyers that Sue Him

Updated #2 (1/6/15 @ 12:15 pm): From Techdirt’s Tim Cushing: Hilariously Stupid Defamation Suit Against A Blogging Lawyer Tossed By New York Judge

December 29th, 2014

The WSJ Rips Me Off — Now What? (An Open Letter)

To the editor:

This past weekend in the Notable and Quotable area of your editorial section, you copied a long excerpt from a recent posting I made here. It was about Google Cars eviscerating the personal injury bar due to my expectations of improved safety.

I was struck with several different reactions:

1. It was nice of you to notice the piece. I’m both Notable and Quotable in the WSJ. I wish my family felt that way. Aww shucks, and all that.

2. My, oh my, you certainly copied a big chunk of my piece, didn’t you? A word count shows you took 44% of my post. That sure is a lot given our copyright laws, isn’t it?

3. Didn’t you think it might be worthwhile in the online version to supply a link so that readers would understand that my posting was a celebration of the diminution of my business, and not a complaint?

4. Most importantly, don’t folks rip off your content all the time? And don’t you complain? What kind of example are you setting for others?

It’s this last point that I want to dwell on — though I think your selective editing on #3 is pretty important — because it seems that such wanton copying only encourages others to do the same. This is part of that whole moronic “content wants to be free” claptrap that is prattled by those who’ve never created anything.

Now you might think, hey, we can just take your words under the “fair use” doctrine! But 1st Amendment guru Marc Randazza seems to say otherwise, and he isn’t particularly kind to you in doing so. Randazza writes,

As someone who blogs, it bugs me when other people steal my work and re-post it on their own blogs. It bothers me even if they provide a link back. Why? Because fuck you. This is my work. If you want to quote part of it, you’re most welcome. You feel like you need to do a large block quote? Go ahead. You hate it and want to ridicule it? Go ahead. You think I’m awesome? You must be sick.

What I’m getting at is fair use is fine, but just ripping off my shit is douchetastic.

Yeah, he’s colorful. But that lede is also followed by him understanding the gist of the piece, as opposed to your selective edits to take it out of context:

The theme of Eric’s article is that self-driving cars may cut down on accidents, insurance rates, deaths, etc., and he actually states that he cheers the thought that he might be put out of business.

Interestingly enough, the Wall Street Journal cuts off its plagiarism right before Eric makes that point. Instead, the WSJ dishonestly makes it look like Eric is whining that he won’t have as much work.

Ok, being quoted out of context? That’s all part of speaking in public. Some douchebag will always do that.

Like me, Randazza — who was my counsel in Rakofsky v. Internet — understands that quoting out of context isn’t the real problem. We both write in public and when we do so we put on our big-boy pants and deal with it.

No, the real problem is theft. You weren’t commenting on what I wrote, the way Jacob Gershman did in his WSJ Law Blog post. You simply cut and pasted my work onto your editorial page without asking.

Randazza goes on to the far more important fair use (or lack thereof) argument, one that should be second nature to you and your lawyers at the WSJ:

But what really bothered me about this is how the WSJ simply stole Eric’s work, and couldn’t be bothered to actually do any of its own — except putting the plagiarized portion next to some ads. They put it in the print version too.

And that is not fair use. It is even more ironic and douchey when you know that Eric’s work is on the WSJ [website], but behind a paywall.

I know that the WSJ must have lawyers on staff. I can’t imagine why they never learned anything about fair use. Because this is not fair use.

If you want the details, and the law of how you screwed this up, because your lawyers may be on vacation this time of year, go read Randazza’s full piece. He’s even kind enough to cite case law for you. I’ll give you a hint though — and this comes from a guy who defends this stuff all the time –he’s pretty clear you fouled up:

Ultimately, the WSJ blew it here because they didn’t add anything to the original — they just lifted it and reposted it.

So now what do you do?

Well, here’s my suggestion: You write me a nice note that says, “Oops! I can’t believe we just took so much of your property and reprinted it without asking! We really shouldn’t have done that.”

And you also say that you shouldn’t have made it look, on your index page, as if I submitted it to you in this fashion, as seen in the graphic to the left, since I played no part in its appearance there. And that if you were going to edit my piece to imply something different, then a link should have been provided so that your readers could see full context.

Then you say, “What can we do to make this up to you!?”

And I say, because I’m a nice guy and willing to give you the answer in advance in case you are worried about lawsuits, “You owe me a beer and we’ll call it even.”

Why would I let you off the hook so easily? Because I have bigger concerns than the 12 rupees you might owe me for swiping my stuff without permission, that concern being your implicit endorsement of such practices.

Because that endorsement hurts all writers, both you and me together. (I know, it’s gotta suck for some at the WSJ to be in agreement with a personal injury attorney.)

And you say to me, “Wow, we’ve never received such a nice lawyer letter before! And your suggestion that we admit an error sounds perfectly reasonable, because if we don’t admit it was an error, others that copy our stuff might possibly throw this little theft back at us one day as a defense, ‘Hey, if youse guys at da Journal can steal 44% of that idiot-lawyer-blogger’s content, why can’t we just take 44% from youse, huh?’ ”

You’ve probably never been offered such a good deal, that being the actual, real-world benefits of saying “oops.”

Now I know that you probably get pitched a bazillion times a day from kings and queens, presidents and prime ministers and all manner of CEOs and genuflecting flacks trying to use your paper as a forum for their brilliant thoughts and ideas. You might simply have thought I’d be grateful to have my words appear in your august periodical in its widely read editorial area, even if you didn’t ask me and you selectively neutered out the main point.

But what you did was wrong from a much broader and fundamental point than a simple copyright violation of my little blog. You violated the ancient Golden Rule: If you steal from others then you can’t complain when others steal from you.

I await your oops letter. And my cold beer. It’s for your own good.

Your new bestest, BFF and beer drinking buddy,

/s/ E.T.

Updated P.S. – I should have also noted, when writing this story, that you are in good company. Both the Daily News and the New York Times have likewise ripped me off, with the details at those links.

July 31st, 2014

More Motions to Dismiss Against Dr. Michael Katz

Justice Hart’s opinion of Dr. Katz.

Your familiarity with the defamation suit against me by Dr. Michael Katz will be presumed. Very briefly, he’s the guy that sued me because Justice Duane Hart called him a liar about 25 times and I reported it. He can’t sue the judge, so he figured he would sue me. I’ve moved to dismiss and have him sanctioned for his frivolous suit, frivolous conduct, and making an improper demand for $200 million.

My co-defendants have now also made motions to dismiss. Samson Freundlich did a “me too” motion (Affid – Freundlich) that includes this gem of a sentence that gave me a laugh:

I hereby reiterate, stress, pinpoint, underscore, focus, resonate, emphasize and magnify their same, similar and identical legal posture to myself, defendant SAMSON FREUNDLICH and incorporate into this affirmation all of their said motion papers-including, but not limited to, their memorandum of law with their annexed respective exhibits previously submitted to this honorable court and heretofore respectfully adopt, restate and recapitulate, without exception, all of their legal and factual arguments presented therein in their entirety.

And co-defendants Lester, Schwab, Katz & Dwyer and its partner Paul Kassirer, cross-moved with this filing today: Memo of Law. Theirs is a bit different than ours since we did an original publication of blog posts and theirs deals primarily with an email that Kassirer sent.

Additional documents in that filing are Kassirer’s Affidavit and this July 29 Order where the defendants in the underlying action tried to get a different doctor to do a new defense medical exam after Justice Hart made mincemeat out of Katz, out of concern that Katz would be shredded on cross-examination due to the judicial findings by Justice Hart that he had lied. That application for a new medical-legal exam was denied.