While the interests that appear in Eugene Volokh’s post vary widely, sexual themes are rarely among them. So it figures that the one time he decides to get wild and crazy, some nutjob would try to shut him down.
Check out the Appellant’s Emergency Motion to Seal Portions of Court Filings Referencing Libelous Statements Made by Others in Wolk v. Olson (3d Cir.). To review the bidding, Arthur Wolk sued Overlawyered.com, alleging Overlawyered had libeled him. The case was dismissed on statute of limitations grounds, and Wolk appealled. Glenn Reynolds (Instapundit), Marc Randazza (Legal Satyricon), Ed Whelan (National Review Online), and I signed an amicus brief supporting Overlawyered’s position in the appeal. Wolk’s lawyers then filed a response in opposition to the motion for leave to file that amicus brief.
That response, filed on Wolk’s behalf by his lawyers, made a false assertion about a post of mine on incest law. And it also wrongly suggested — with no foundation whatsoever — that my incest law post gave Wolk “more than a reasonable basis to question whether at least one of the amicus bloggers seeking this Court’s audience, one of whom apparently has a penchant for discussing sexual misconduct, may be responsible for the horrible accusations of sexual misconduct against Wolk on Reason.com.”
No one asked me to sign on as amicus, which deeply hurt my feelings. On the other hand, I try to avoid posting about incest, which may explain why I was left out of the club. But I digress.
Eugene’s point is that his post, ripping Wolk for his absolutely irrational allegations and utter absence of logical reasoning, would be subject to being “unposted” by dint of Wolk’s attempt to have paper submitted in the open subsequently sealed, post hoc. In other words, what is will no longer be, and a published post based on open allegations would then be subject to court order directing that it be unpublished. There’s a concept.
This raises a few interesting notions on the internet. Initially, the idea that publication of something that appears in open court papers would be subject to post hoc revision would put free speech in the toilet. Wolk’s crazy allegations were a worthy, almost mandatory, subject of scrutiny. He made the allegations, and they demanded Eugene’s attention. He made them in paper filed in court, and that’s just about as open as it comes. Wolk did what he had to do, and Eugene did what he had to do. That’s how scrutiny works.
Now, Wolk is ashamed of being exposed as irrational, so he wants his papers sealed. My bet is that he wishes that he never wrote the papers, never made such ridiculous allegations. But he did, and he can’t unfile his papers. Sealing them is the next best way to keep the craziness under wraps.
So Wolk files in the open and then seeks to have his openly filed papers deemed sealed, nunc pro tunc. Because we all know how well the legal fiction nunc pro tunc unrings the bell. It would be one thing if that’s where it stopped, but Eugene’s point is that his motion to seal isn’t the ending point, but the beginning. It’s the set up for obtaining an order to take down Eugene’s post, because it quotes the contents of papers that, in the world only a lawyer could love, can’t be seen because of the after-the-fact sealing.
The question isn’t whether Eugene quotes Wolk faithfully, before ripping his head off, but whether his post, entirely proper at the time, can be rendered improper afterward. Imagine the havoc that could wreak. I wonder if the order would require me, having read Eugene’s post, to forget everything I saw?
But there’s a secondary aspect to this that makes it even more ridiculous. Even if the court granted Wolk’s motion, sealed his papers nunc pro tunc, and ordered Eugene to take down his post that quotes from sealed papers, what about the cache? This is the internet, guys. Nothing is every truly taken down. Nothing online really disappears. It’s out there somewhere. Always and forever. There is no unringing the internet bell.
I can imagine the day after Eugene is ordered to remove his post about Wolk, and Wolk googles away to make sure that Eugene isn’t being contemptuous. “Aha!”, Wolk exclaims. “There it is, the offending post that faithfully quotes my improvident submission,” says Wolk. “That Volokh was ordered to make it disappear and yet it’s still there for the world to see.” What would the court have Eugene do?
The power of the Third Circuit Court of Appeals is awesome. Truly awesome. But not as awesome as the power of the internet. It can order a man to be put to death, but it cannot order the internet to obey it’s legal fiction. It can order Eugene Volokh to take down his blog post to protect Wolk from himself, but it cannot order the virtual universe to forget it existed. It’s there, forever and ever. There’s no going back.
Eugene asks that others who share his interest in maintaining the integrity of critical commentary on the internet stand with him and oppose Wolk’s attempt to retroactively censor the blawgosphere when it calls him out. Even though I wasn’t asked to sign on as amicus, I stand alongside Eugene Volokh now.
And to the Third Circuit, my expectation is that the court will not only reject Wolk’s application with extreme prejudice (of the legal sort), but recognize that the publication of critical commentary in the blawgosphere is every bit as worthy of full and unfettered protection as any other publication.
If Wolk doesn’t like being ridiculed, then he ought to think long and hard about what he puts into his court papers. The solution to nuttiness isn’t to shut down the people who point it out, but to not behave nutty.