About that blogger who didn't get to use the journalist shield law...

David Carr — at the NYT — is not too sympathetic:

In the pre-Web days, someone like Ms. Cox might have been one more obsessive in the lobby of a newspaper, waiting to show a reporter a stack of documents that proved the biggest story never told. The Web has allowed Ms. Cox to cut out the middleman; various blogs give voice to her every theory, and search algorithms give her work prominence....

“I view our case as a blow for the First Amendment,” said [the man who won at $1.5 million judgment from her]. “If defamatory speech is allowed just because it is on the Internet, it cheapens the value of journalism and makes it less worthy of protection.”

Herman Cain's lawyer, Lin Wood, a defamation expert.

He says he's not there to file lawsuits against the women who are accusing Cain, but to "give him my legal evaluation of whether any of these particular statements are potentially actionable." Whatever he says about filing lawsuits, his presence on Cain's team is a way to caution accusers and, at the very least, influence them to be careful about what they say.

Wood has some interesting names on his list of former clients:

Wood represented Richard Jewell, who was suspected and cleared of the Atlanta Olympic Park bombing and later filed libel suits against media organizations and a local college, some of which were settled.

Wood's other notable clients included John and Patsy Ramsey, suspected but later cleared in the unsolved murder of their daughter, JonBenet Ramsey. The couple filed defamation suits against a number of media companies.

Wood also filed a defamation lawsuit against Vanity Fair magazine writer Dominick Dunne on behalf of former Congressman Gary Condit, who was romantically involved with intern Chandra Levy but never an official suspect in her 2001 murder. The suit was settled for an undisclosed amount.

Those are all people who were dreadfully accused in the press.

Note to Cain accuser: Saying "very specific instances" does not equal specifying instances.

The still-unnamed woman communicates through a lawyer:

The lawyer, Joel P. Bennett, who represents a former employee of Mr. Cain’s at the National Restaurant Association, said the accusations did not center on a single exchange that could be easily misinterpreted, which is how Mr. Cain has characterized it. Mr. Bennett said there were multiple episodes that led his client to file a formal complaint with the restaurant association.

“Mr. Cain knows the specific incidents that were alleged,” Mr. Bennett said during a brief news conference outside his Georgetown office. “My client filed a written complaint in 1999 against him specifically and it had very specific instances in it, and if he chooses not to remember or to acknowledge those, that’s his issue.”

This is maddening. Very specific instances. Okay. That's what we need to hear about. What are they?! They don't become very specific instances because you say "very specific instances"! That's still completely abstract. Get specific. Get specific to the point where we can judge for ourselves whether the details amount to something that counts against Cain and that exposes you to a defamation lawsuit if the details are false.

Mr. Bennett described his client as “anxious” to rebut Mr. Cain’s comments while maintaining her desire not to become “a public figure.” 

You want to accuse and remain impervious to any tests of your truth-telling.

Mind-boggling!

Sarah Palin threatens to sue Random House over "Rogue."

Ha. I said it the other day: "Let's focus on Random House, the venerable publishing house."

"Was Random House aware that [Joe McGinniss] was making a desperate overtime bid to save face?"

"And if so, why did it allow him to come forth with most of those tawdry accusations without proof or proper sourcing?"

McGinniss's sleaziness has been well understood. Let's focus on Random House, the venerable publishing house.

In the email [at the link], McGinniss reveals that his manuscript, then under legal review at Crown/Random House, could not prove its most headline-grabbing allegations. And yet, many of these “salacious stories” that lacked “proof” (in McGinniss’s own words) ended up in the book, and on televisions everywhere during the author’s current media tour … without proper sourcing, and without any apparent new evidence to support them.

It's hard for a public figure to sue for defamation in the United States, but this email may be the proof of reckless disregard for the truth that Sarah/Todd/Bristol Palin would need.

That doesn't mean they should sue. It would boost the profile of McGinniss and his book and shine a spotlight on his various allegations.

"Things that I never imagined people would care about are now being plastered all over blog sites..."

"... including pictures of me from when I was 17 and tweets that have been taken completely out of context. I tweeted once (it was reported that I said it twice) that 'I wonder what my boyfriend @RepWeiner is up to.'"

ADDED: Imagine if Anthony Weiner were a Republican. (I know, it's such a hackneyed visualization, but it's important here.) The liberal/lefty blogs would be shredding him mercilessly. I'm not saying Weiner's not getting his hair mussed. But if he were a Republican, the feeding frenzy would be of a different magnitude entirely.

IN THE COMMENTS: Freeman Hunt writes:

So the media is just accepting this absurd assertion that all his accounts were hacked? They were all hacked for the purpose of sending a boner photo to some woman in Seattle? And he hasn't bothered to contact law enforcement?

Right.

Must be nice to be a Democratic politician.

Nevadabob writes:

1) Weiner hasn't reported the alleged hack to the FBI.

2) Facebook hasn't announced any investigation of Mr. Wiener's allegedly hacked account.

3) Twitter (the company) knows the IP address of the computer that really sent the tweet. However, Twitter hasn't announced any investigation. They also haven't released the IP address of the person who actually sent the tweet so we can see if that IP address belongs to the Democrat Rep. Wiener

yfrog knows the IP address of the person that actually uploaded the obscene photograph Mr. Wiener's yfrog account. Thusfar, yfrog has not released that IP address so that we can track down the nefarious hacker who did that. Also, Mr. Wiener could request that they release that IP address to the public so we could help him track down the hacker. But he hasn't.

Mr. Wiener so far refuses to tell us what his own IP address is. And, he is refusing to answer detailed questions that would allow us to determine if the IP address which sent the tweet is at his home in New York.

It's trivially easy to determine if his accounts have REALLY been hacked. Is the FBI investigating? He is, after all, a sitting member of Congress and it is a felony to impersonate a member of Congress. It's also a felony to hack people's Facebook and Twitter accounts.

I'm left to wonder why hasn't Mr. Wiener reported this breach of Homeland Security to the proper authorities? Is it because falsely reporting this would itself be a felony?

ADDED: Is it news if a politician is unfaithful to his wife? It's not important (unless there's some big hypocrisy involved, as there is with politicians who have made their careers spouting "family values"). But I think it is news when a politician mishandles his internet communications. Minor news, but worth noting.

And it's really news — serious news — if either: 1. the internet accounts of a politician have been hacked in an effort to destroy the man, or 2. the politician makes the false statement that he has been victimized by a crime. One or the other has occurred in this case (unless I'm failing to see some other option).

Should we all be closing our Twitter accounts lest some devious prankster destroy our reputation? Or has Weiner —  for his own purposes — maligned Twitter's business and undermined the Twitter-user's sense of security? I want to know!

AND: If Weiner is lying about his accounts getting hacked, he could be sued by Twitter (and the other companies) for defamation.

ALSO: NBC News reports "Lewd Photo Sent Over Rep. Weiner's Hacked Twitter Account... his Twitter account was hacked." Not that Weiner makes that claim, but an outright assertion that his account was hacked. Twitter is getting slimed here. Does it deserve it?

Should psychiatrists offer opinions about the mental conditions of various characters in the news?

The official rule of the American Psychiatric Association is that they can speak generally but it's unethical to give a professional opinion about an individual. The rule grew out of a case involving Barry Goldwater:

Just before the 1964 election, a muckraking magazine called Fact decided to survey members of the American Psychiatric Association for their professional assessment of Senator Barry Goldwater of Arizona, the Republican nominee against President Lyndon B. Johnson....

The survey, highly unscientific even by the standards of the time, was sent to 12,356 psychiatrists, of whom 2,417 responded. ... Half of the respondents judged Mr. Goldwater psychologically unfit to be president. They used terms like “megalomaniac,” “paranoid” and “grossly psychotic,” and some even offered specific diagnoses, including schizophrenia and narcissistic personality disorder....

There were several attempts at a psychodynamic formulation of Mr. Goldwater’s character. One unsigned comment called the candidate “inwardly a frightened person who sees himself as weak and threatened by strong virile power around him,” and added that “his call for aggressiveness and the need for individual strength and prerogatives is an attempt to defend himself against and to deny his feelings of weakness.”...

Goldwater sued for libel and won, which led to the APA rule barring opinions. Obviously, it brings psychiatry into disrepute when ordinary people can see it used dishonestly to promote a political goal. But I don't see why it's so bad for psychiatric experts to speculate and opine about public figures. We the people need to think about the events in the news, and some expert opinion is helpful. Let us decide which experts are worth hearing from. The political hacks will be enjoyed or condemned as we see fit. But some analysis is going to be good. Frame it as speculation and hedge appropriately: I would need to meet with the individual to make a professional diagnosis, but here's what I can say....

If the experts don't do it, the pseudoexperts will. As for the fear of lawsuits, libel law is constrained by free speech values. Mere opinion in not libel. And public figures have to meet a high standard to prove libel.

Why then did Goldwater win his lawsuit? The linked article, by psychiatry professor Richard A. Friedman and published in the Science section of today's New York Times, says:

The Supreme Court awarded the senator $1 in compensatory damages and $75,000 in punitive damages — and, more important, set a legal precedent that helped change medical ethics for good.

Of course, any lawyer knows that the Supreme Court doesn't award damages. It only affirms the lower court's decision. But what is this Supreme Court case and how did it deal with the free speech issue? Hello? New York Times? Don't you wonder how this case would square with New York Times v. Sullivan (second link, above)? So did Justices Black and Douglas, dissenting from the denial of certiorari in Ginzburg v. Goldwater! Justice Black wrote:

This case perhaps more than any I have seen in this area convinces me that the New York Times constitutional rule is wholly inadequate to assure the 'uninhibited, robust, and wide-open' public debate which the majority in that case thought it was guaranteeing....

This suit was brought by a man who was then the nominee of his party for the Presidency of the United States. In our times, the person who holds that high office has an almost unbounded power for good or evil. The public has an unqualified right to have the character and fitness of anyone who aspires to the Presidency held up for the closest scrutiny. Extravagant, reckless statements and even claims which may not be true seem to me an inevitable and perhaps essential part of the process by which the voting public informs itself of the qualities of a man who would be President. The decisions of the District Court and the Court of Appeals in this case can only have the effect of dampening political debate by making fearful and timid those who should under our Constitution feel totally free openly to criticize Presidential candidates. Doubtless, the jury was justified in this case in finding that the Fact articles on Senator Goldwater were prepared with a reckless disregard of the truth, as many campaign articles unquestionably are. But, even if I believed in a balancing process to determine scope of the First Amendment, which I do not, the grave dangers of prohibiting or penalizing the publication of even the most inaccurate and misleading information seem to me to more than outweigh any gain, personal or social, that might result from permitting libel awards such as the one before the Court today. I firmly believe it is precisely because of these considerations that the First Amendment bars in absolute, unequivocal terms any abridgment by the Government of freedom of speech and press.

So the jury found that the New York Times standard was met, and the Court of Appeals affirmed. The Supreme Court declined the case, with Justices Black and Douglas arguing for greater free-speech protection.

And when I say "the New York Times standard was met," I mean the legal standard from the case New York Times v. Sullivan. I do not think the New York Times standard of journalism was met for this article!

Syracuse University College of Law threatens to bring "harassment" charges against a student who blogs about law school life.

FIRE reports:

[Len] Audaer's ordeal began on October 15, 2010, when he was summoned to a meeting with SUCOL Associate Professor of Law Gregory Germain due to "extremely serious" charges. In the meeting, held on October 18, Audaer learned that the charges involved "harassment" for his alleged involvement with SUCOLitis. The anonymous, satirical blog attributed obviously fake quotes to SUCOL students, faculty, and staff. The blog included a disclaimer stating, "No actual news stories appear on the site."

So the blog names students and quotes them saying things that they did not say, and the idea is, it's satire and everyone should know that the quotes are fake. But how would you feel — in a tough job market — knowing prospective employers will Google your name and see that quote?

This is similar to a problem I have had with the blog Sadly, No!, which allows commenters to use my name and comment, pretending to be me. I complained, because I don't want my name attached to quotes that aren't mine, and the answer was that readers know it's satire.

Not all readers pick up on satire. (Remember Fox Nation picking up an Onion story about Obama and presenting it as news?) And satire usually has some element of truth in it. A real individual — especially a student who is looking for a job — has to worry about what people will think. And when readers enter a blog because they've Googled a name, they may not stay around long enough to absorb the context. If non-idiots can make a mistake about The Onion, which is a well-known and well-done satire, I would have even more anxiety about an obscure and possibly not-very-well-written satirical blog. 

The Chronicle of Higher Education has picked up the story:

SUCOLitis aspires to be something like The Onion of law-school life. The Syracuse, N.Y., satirical news blog has attracted thousands of views with fake headlines about beer pong, third-year students serving burritos, and the election of the university’s “sexiest Semite.” It delights in attributing fake quotes to students and faculty, as well as to famous alumni like Vice President Joe Biden, who is quoted as calling SUCOLitis “even funnier than me.”

Syracuse University officials aren’t laughing....

A spokeswoman for the law school, Jaclyn D. Grosso, won’t discuss details of the case. In an e-mail, she tells Wired Campus only that a faculty prosecutor has been appointed to investigate claims that a student violated the code of conduct, and to file a charge if appropriate.

She adds, “According to the faculty prosecutor, a motion has been filed with the hearing panel for a protective order to prevent public disclosure of the names of the students, faculty, and staff who were targeted in the blog, or who testify in the case, unless they consent to have their names disclosed. This was done to protect their privacy rights.”

I'd really like more information about this case, and the law school is suppressing it — apparently in order to protect the students who worry that their reputations are suffering injury. The blog is no longer public, so I can't see what kinds of fake quotes were used and how obviously satirical the writing was. Free speech is important, and I'm suspicious of charges of "harassment," but defamation is different. If you report that a person said something they didn't say, that can be seen as a lie.

Here's a hypothetical: A satirical blog aggressively goes after an individual law student, attributing all sorts of damaging quotes to him: confessions to drug use, cheating on exams, and plans to sexually harass co-workers instead of getting any work done if he gets that job at the law firm. Imagine a satirical blog, written anonymously by another student who's interviewing for the same job. You see the point.

And by the way, to be admitted to the bar, your need to pass a character review.

The NYT likens real, consensual sex to a false allegation of rape and frets once more about privacy and the internet.

"Duke Winces as a Private Joke Slips Out of Control," reads a NYT headline. I wondered what Duke winced? John Wayne is too dead to wince, and who cares what some Euro-aristocrat feels? Turns out it's Duke, the University, and the article is about that college girl who made big, detailed PowerPoint presentation about her sex conquests and sent it out to "a few friends" by email, whence it migrated to the web, purportedly to her shame and dismay. Supposedly, the young woman — Karen Owen — didn't mean for her hilarious writing to go viral. Is that so? My experience with writers is that they want readers. But that's a side issue ignored by the NYT, which is fixated on Duke University:

On campus, students were abashed, if not a bit fatigued by the notoriety.

Just four years ago, the Duke men’s lacrosse team was embroiled in scandal when a woman falsely accused three Blue Devils players of having raped her at a party where she was to perform as a stripper. One year later, the charges against the players were dropped and the prosecutor in the case, Michael B. Nifong, was disbarred.

What?! Why liken real sex between consenting individuals to a false charge of rape?! "Notoriety" — that's a ridiculous umbrella term.

Seven of the 13 athletes Ms. Owen wrote about were — or still are — on the lacrosse team. This incident has angered many of those who are already sensitive to their image, according to students and alumni who know them. The lacrosse players contacted would not comment.

Huh? So... those 7 guys aren't the ones who were falsely accused of rape, are they? And are the lacrosse players really so "sensitive" that it bothers them for people to know that they had actual sex with classmates?

On campus, other students had plenty to say.

Kishan Shah, 18, a pre-med student from Carmel, Ind., said the university should not revoke Ms. Owen’s degree, but “they should let her know that she has disgraced the school.”

Who suggested the crazy punishment of revoking her degree? And since when do we punish people for talking about their sexual encounters? If she's lied about someone, maybe they have a defamation claim, but it's hard to see how a young man is hurt by the rumor that he had sex with a woman, even if she thinks he wasn't a good enough lover.

Mike Lefevre, a 21-year-old senior and the president of the student body, said that people were not sure whom to be more concerned about. “Should we be more worried about the young woman’s privacy or worry about the individuals who were named?” he said. “It’s not so clear to us who was the victim, and who we should reach out to.”

Give me a break. If you do things with people, they can talk about it. These days the talk is on the internet. Get used to it. If you don't like it, try limiting your sexual encounters to people who love and respect you. And quit whining.

I crack down on Newsbusters for saying "CNN Host Calls for Crackdown on 'Bloggers' in Wake of Sherrod Incident."

Newsbusters is getting a lot of attention for an article with that flashy headline, but the headline is completely unjustified by the video it purports to analyze. Let me walk you through the text and show you what I mean:

Anchors Kyra Phillips and John Roberts discussed the "mixed blessing of the internet," and agreed that there should be a crackdown on anonymous bloggers who disparage others on the internet.

Phillips and Roberts agreed that there should be a crackdown on anonymous bloggers who disparage others. Take note. You'll see that they don't. And what does that have to do with the "Sherrod Incident" referenced in the headline? Andrew Breitbart is the polar opposite of anonymous. He seems to love getting his name out there and all over everything. And the disparaging of Shirley Sherrod was done through her own image and words in a video clip.

Newsbusters quotes Roberts telling us what we know:  the short clip of Sherrod's speech made her seem a lot worse than the whole clip. But, as Roberts notes, we did go further and get the whole context.

Phillips brings in the the problem of anonymous bloggers:

"There's going to have be a point in time where these people have to be held accountable," Phillips said. "How about all these bloggers that blog anonymously? They say rotten things about people and they're actually given credibility, which is crazy. They're a bunch of cowards, they're just people seeking attention."

Roberts cites a conversation with Andrew Keen, author of "The Cult of the Amateur: How Today's Internet is Killing Our Culture":

"Well what Andrew talked about with me was this idea of a gatekeeper but there are huge first amendment rights that come into play here - freedom of speech and all that. And he said the people who need to be the gatekeepers are the media to check into these stories," said Roberts.

So, Roberts isn't saying there should be a government crackdown. He recognizes the First Amendment, and says Keen said he wanted the media to be the gatekeepers. Newsbusters says:

Phillips wanted to go even further, asking if "there's going to come a point where something's going to have to be done legally" about anonymous bloggers.

So... legally... does that imply a government crackdown or is Phillips only suggesting that there can be defamation lawsuits brought by individuals in which the identity of "anonymous" — really, the word should be pseudonymous — bloggers can be discovered?

"There has to be some point where there's some accountability. And companies, especially in the media have to stop giving these anonymous bloggers credit," she said.

So, Phillips ends up back at the idea that the media need to shift and winnow the material that comes up through the internet. Where's the crackdown?

"If you're in a place like Iran or North Korea or something like that, anonymous blogging is the only way you could ever get your point of view out without being searched down and thrown in jail or worse," said Roberts. "But when it comes to a society like ours, an open society, do there have to be some checks and balances, not national, but maybe website to website on who comments on things?"

Not national... I think that means he's saying the federal government should not be doing the checking and balancing. Roberts is saying that "website to website" something should be done — maybe just a rejection of anonymous comments. It's annoying that Roberts doesn't distinguish between pseudonymous bloggers and anonymous (or pseudonymous) commenters, but I don't see any place where he agrees even with Phillips's use of the word "legally," which was completely vague and most likely referred only to defamation lawsuits.

CNN's two regulation-happy reporters...

They never mentioned regulation! I think they were talking about the marketplace of ideas in which we are all the gatekeepers. In that marketplace of ideas, I'm cracking down on Newsbusters! This much-linked article is reeking crapola. And yet it is raking in traffic.

CNN's two regulation-happy reporters think the Sherrod situation can help bring attention to the "necessity" of blogging reform if she brings a defamation lawsuit against Andrew Breitbart.

What is the sentence with that word "necessity" in it? I went to the video, and I couldn't find it. I listened to the end of the segment 3 times, and it seems to me that the 2 reporters peter out with Roberts talking about how we all have to "be aware" and how he always tells young people not to put naked pictures of themselves on the internet.

"Regulation-happy"? "Blogging reform"? "Crackdown"? What nonsense!

IN THE COMMENTS: Old Dad said...

CNN's real problem is cablecasting boring and pedestrian filler.

Exactly. Newsbusters, ironically, is making them seem exciting. I think Roberts knew they were being pointless and tedious. That's why went all naked teenagers!!!!! in the end.

Over at Media Matters, Eric Boehlert is writing about me.

Eric Boehlert. Eric Boehlert? Oh, I know where I read his name recently. He's a character in Iowahawk's brilliant "I'll Take a Cashier's Check, Mr. Breitbart." He's the one handing out the assignments:

EZRA KLEIN: hey boehlert whats the assignment

ERIC BOEHLERT: 3 part essay

ERIC BOEHLERT: 1. Explain why unemployment report shows stimulus is working

ERIC BOEHLERT: 2. link BP oil spill to teabaggers

ERIC BOEHLERT: 3. spin latest Gallups

JOSH MARSHALL: crap crap crap and I have a lab assignment for global warming due

ERIC ALTERMAN: o fack me looks like an all niter...

Ha. But why is he on my case? "Ann Althouse continues to blog about Journolist; appears to have no idea what it was," he says. Well, then, release the archive so I can cure my terrible ignorance. That's all I want.

Althouse continues to post item after item about Journolist, despite the fact that... Althouse has no idea what Journolist was.

Stop me before I blog ignorantly again, Eric. Send me the archive. Or send it to Breitbart and collect $100,000 and I'll get to it that way.

Boehlert goes on to quote me saying that if I were to sue a Journolist member for defamation — something I'm not inkleined to do — I would be able to get discovery into the archive. Eric B. says:

Althouse, a law school prof and very public blogger, was thinking out loud about suing the owner of Journolist to find out if any of the 400 journalists on the listserv ever wrote anything nasty about her in their private emails. (Ego much?)

Eric Boehlert continues to write about me like that even though he has no idea what the thing I wrote that he just quoted says.  I cited a specific item of defamation against me that was published on the web and that remains there. If I were to sue based on that remark, I would be able to get discovery into relevant evidence about that claim. Moreover, I know that there are specific, related remarks about me in the Journolist archive, because that remark was tweeted, in Ezra Klein's own words, "after I was alerted to her thread on Journolist."

Boehlert imagines that one of my commenters nails his argument for him. Here's that comment:

I would think a law professor might have a better grasp of this. But on what grounds would you seek the archives? To borrow a popular argument of the right, where in the Constitution does it say you have the right to know what others are saying about you, especially when you have no proof they are saying anything defamatory about you.

Clue to Boehlert: Not all law is in the Constitution. The tort of defamation is a matter of state law. The extent of discovery is a matter of procedural law. I don't need a constitutional right. (Conceivably, there is a right that would bar my access to the archive, but I don't need a constitutional right to discovery if I bring a defamation claim.)

So, Boehlert, your post is incredibly lame, but, as a law professor, I'll give you a rewrite. I think Media Matters portrays itself as a champion of truth, so... see if you can get a little closer to something that feels a little more truth-y.

***

On a related note: Yesterday, James Taranto, in Best of the Web, opined that a journalist's shield law would prevent discovery into the Journolist archive in a defamation suit:

Seems to us it would depend on the venue. Most states have some sort of shield law protecting reporters from having to disclose confidential sources, but the specifics vary from state to state. In federal court, however, there is no such privilege.

The privilege is about shielding confidential news sources — informants. The Journolist archive contains the statements of journalists talking to each other. I don't see how the privilege could apply.

[Journalists] should, of course, have all the legal protections of the First Amendment, which among other things mean that Althouse almost certainly would not win her defamation suit against Klein. His offending tweet, it seems to us, is a constitutionally protected opinion rather than a false statement of fact.

One reason I have no interest in suing is that I want the broadest First Amendment rights here. I would not want to have to argue that the statement in question — "Ann Althouse sure has a lot of anti-semitic commenters" — is not an opinion but a false statement of fact. But I'm afraid it is, quite plainly, a false statement of fact.

"Well, I'd like to know whether they are defaming me on JournoList."

That's something I blogged back in March 2009.

I'd still like to know. Don't I have a right to know what a gang of 400 journalists are saying about me, as they endeavor to shape my reputation, decide that all the good people must avoid linking to me, or whatever it is they do?

If I were to bring a defamation suit based on Ezra Klein's lie "Ann Althouse sure has a lot of anti-semitic commenters," I would seek access to the Journolist archive, and I believe I would get it. There is no privilege that would shield this information from discovery. Lawyers, argue with me if you think I'm wrong.

I'm not the litigating type — though when I practiced law, I worked in the litigation department — and I am not threatening to sue. I am saying this to make one more argument for why the Journolist archive needs to be made public.

Propagating the notion that Tea Partiers must be stupid.

It's the "Teabonics" Flickr set, collecting photographs from Tea Party events that depict signs with spelling or grammar errors. Example:



The first commenter says: "I guess that's why they call it 'fee'-dom." A few comments down someone asks if maybe it's Photoshopping. Yes, it's so easy to Photoshop errors onto people's signs. (I wonder if there are any defamation lawsuits based on the photographic lie that results.)

Via Wonkette, where commenters are having fun mocking someone who wrote "I did’nt serve 22 years for Socialism":

I love the “Did’NT Serve” sign.

Seems the three Rs for Teabaggers is Retardism, Racism, and Recidivism not that librul reading, riting and rithmatics.

Simpleton white dumbfuck retards, all.

So, one man served in the military for more than 2 decades and then misplaced an apostrophe, and another is skilled in the detection of racism and the use of mental disability as metaphor.

Al Sharpton is threatening to sue Rush Limbaugh for defamation? But that's what Rush wants, isn't it?

Let me explain my theory, which I based on: 1. my understanding of litigation and 2. my familiarity with the way Rush Limbaugh's mind works. Note: 1. I'm a law professor, and 2. I listen to Rush all the time, and I pay particularly close attention when he contrasts what people say and what they are really trying to do.

So Rush writes this op-ed in the WSJ. Go over there and read the details about his thwarted investment in the St. Louis Rams. I just want to focus on what he said about Al Sharpton, who was one of the key people who made a conspicuous fuss about Limbaugh:

In 1998 Mr. Sharpton was found guilty of defamation and ordered to pay $65,000 for falsely accusing a New York prosecutor of rape in the 1987 Tawana Brawley case. He also played a leading role in the 1991 Crown Heights riot (he called neighborhood Jews "diamond merchants") and 1995 Freddie's Fashion Mart riot.

Sharpton threatens to sue because of that, reports CNN, which adds:

The Crown Heights riot began after a Hasidic Rabbi accidently struck and killed an African American boy with his car. The boy died from the injuries–sparking four nights of riots. The Rabbi was not charged, but Sharpton played a large role in rallying on behalf of the young boy’s family and the African American community.

According to a statement put out by Sharpton’s media consultant, a study New York Governor Mario Cuomo commissioned showed Sharpton was not involved in the Crown Heights incident until after the rioting concluded.

"Mr. Limbaugh's blatant and defamatory statements regarding the Crown Heights Riots falsely give the impression that Rev. Sharpton was present during the violence that occurred when in reality he had been called in by the family after the violence," Sharpton’s statement says.

"In terms of Freddie's Fashion Mart, Rev. Al Sharpton, along with local elected officials supported the protests. However, a lone gunman who disagreed with the nonviolent nature of the protests entered the store and killed seven people and himself… For Mr. Limbaugh to imply that Rev. Sharpton has anything to do with someone that killed people and himself is blatantly wrong," the statement continues.

CNN doesn't bother to fact check either Limbaugh's assertions or Sharpton's. What did Sharpton really do in relation to those old incidents?

I think Limbaugh was baiting Sharpton. Sharpton now has to talk about those old riots and the way he acted back then. If he sues, it will draw intense attention to the details of what happened, and we'll have to debate about the precise language Limbaugh used and how close to accurate it was. The question of the damage to Sharpton's reputation will be put in issue, and there will be discovery and factfinding relating to Sharpton's reputation and how much money it is worth. That's pretty risky for Sharpton, who likes to pose as an elder statesman nowadays. Meanwhile, Limbaugh, who may not want to begin any litigation, will have the opportunity to counterclaim, accusing Sharpton of defamation.

Look out, Reverend Al, it's a trap!

ADDED: This whole NFL controversy is a gift to Rush. I don't think Rush cared much about being one of the investors in the Rams. He wouldn't have had any serious power running things, and the group of investors came to him about it. Now, he's the center of attention, everyone's talking about him, and plenty of them are embarrassing themselves with careless, stupid, and nasty racial pandering — producing audio clips which he will play on his show, accompanied by scathing mockery and insistence that the mainstream media air his side of the story. If they do not, that's more fuel for Rush's red-hot critique of media. If they do, then he's on mainstream media, telling it his way at last.

"They wanted the excuse to run the fabricated quote."

"They wanted the opportunity to do it.  These people are scum. They are literal professional scum and they are responsible in many ways for the deteriorating standards and quality of journalism.  They are leading the pack. They are found on both the news side and the sports side, and they are doing everything they can to promote disunity and discord throughout our culture and society while holding themselves up in their own minds as great unifiers and people who care only about social justice.  When they're basically just incompetent, irresponsible, impersonators of journalism."

"We are no longer at the point that it is acceptable to throw things at the wall and see what sticks."

"There was a time probably when the community was more forgiving of things that were inaccurate or fudged in some fashion — whether simply misunderstood or an author had some ax to grind. There is less tolerance for that sort of problem now."

Wikipedia evolves.

The model insisted on outing the blogger who called her a "skank."

And look, it's a woman — a young woman — a pretty young woman.

Speaking out for the first time since a court order forced Google to reveal her identity, blogger Rosemary Port tells the Daily News that model Liskula Cohen should blame herself for the uproar.

"This has become a public spectacle and a circus that is not my doing," said Port, whose "Skanks in NYC" site branded the 37-year-old Cohen an "old hag."

"By going to the press, she defamed herself," Port said.

"Before her suit, there were probably two hits on my Web site: One from me looking at it, and one from her looking at it," Port said. "That was before it became a spectacle. I feel my right to privacy has been violated."

But before you celebrate Port's seemingly wise anti-litigation statement, take note that she's suing Google... for $15 million federal lawsuit against the Web giant.

"When I was being defended by attorneys for Google, I thought my right to privacy was being protected," Port said.

"But that right fell through the cracks. Without any warning, I was put on a silver platter for the press to attack me. I would think that a multi-billion dollar conglomerate would protect the rights of all its users."

In her suit, she'll charge Google "breached its fiduciary duty to protect her expectation of anonymity," said her high-powered attorney Salvatore Strazzullo.

"I'm ready to take this all the way to the Supreme Court," Strazzullo said. "Our Founding Fathers wrote 'The Federalist Papers' under pseudonyms. Inherent in the First Amendment is the right to speak anonymously. Shouldn't that right extend to the new public square of the Internet?"

How hard did Google fight? Surely, there's no absolute right to hide your identity. Why should someone who commits the tort of defamation escape a lawsuit by hiding behind a pseudonym? It's not fair to the people who have the guts to show their names when they libel people. They get stuck being defendants in defamation suits.

The key is for courts to have a high standard in determining whether there really is defamation before they order that the name be revealed. Otherwise, someone who has not actually suffered a legally remediable injury can use a lawsuit for the wrong purpose: to inflict the injury of making a pseudonymous writer's name public.

Note that Liskula Cohen is now dropping her defamation suit against Port. That's good for Port. It's bad to be sued for $3 million. But it suggests that the disclosure of the name was the point of the lawsuit. Courts should not allow themselves to be used for that purpose. And Google's lawyers should fight hard to make courts see it that way.

"Just because 'actual malice' is a tough standard to meet doesn’t mean you aren’t in big trouble if someone meets it."

When the threat of a defamation suit really should scare a blogger.

Tattoo girl confesses.

"I asked for 56 stars and initially adored them. But when my father saw them, he was furious. So I said I fell asleep and that the tattooist had made a mistake."

Yes, confess now, after we all heard your story and knew you were the liar. You know, Kimberley Vlaeminck sued the tattooist, Rouslan Toumaniant. He now has reason to sue her for defamation.

Political stories I'd blog if I felt more like it.

1. Obama wants to bankrupt to bankrupt the coal industry (and the SF Chronicle sat on the audiotape).

2. Josh Marshall slurs Joe the Plumber as "Joe the Skinhead."

3. Jonah Goldberg pretend-looks back on the Obama presidency -- his "precipitous fall from would-be messiah, to near pariah."

4. "We’ve got to have a civilian national security force..."

5. Sarah Palin receives a (Canadian) prank call.

6. Old radical rag referred to community organizing and had a circular logo.

7. Fred Thompson speaks for John McCain, and John Kerry speaks for Barack Obama. Both do a nice job.

8. Another Senatorial candidate files a defamation lawsuit. The matter in dispute: godlessness.

9. Instapundit had more traffic in September than in October. Me too. Political fever peaks in September. By October, we're just trying to make it to the end.

10. And now, it's November, and this list hits the round number 10. The feeling is: Let it end!