Why Lawyers Can't Control the Web
Via Techdirt, Florida lawyer Joel Hirschhorn went the full bluster route. According to his website, his Miami firm is "nationally renowned" in criminal and white collar defense, which makes sense given his URL of acquitall.com. This could explain why I've never heard of him, not being sufficiently appreciative of lawyers who are nationally renowned.
Nonetheless, it appears he found time away from being nationally renowned to stray into first amendment law on behalf of his online sports betting client and go after commenters at 800Notes.
800notes is one of those sites that gets even more bogus legal threats than we do. The site which lets its users track and discuss telemarketers recently received a threat from a lawyer, Joel Hirschhorn, representing a guy named Adam Meyer, who sells some sort of "Adam Wins" sports betting thing. Not surprisingly, the 800Notes page for "Adam Wins" has a number of comments, many of which are from people who are not fans of Adam or his telemarketing. Adam's lawyer, Hirschhorn, mistakenly threatened the site 800Notes with defamation for the comments on those pages. Of course, as is well established in both the statute and in the case law, 800Notes is protected from liability on the comments of its users thanks to both Section 230 of the CDA and basic common sense about who's legally liable for statements.So many things wrong here that it's hard to keep straight. Generally, if a lawyer is going to throw his weight around, figure out before hand whether the nice folks you're trying to persuade aren't more knowledgable than you in the particulars of the law.
Paul Levy [from Public Citizen], representing 800Notes then called Hirschhorn to explain the law to him... only to have Hirschhorn abruptly hang up on him:I then called Hirschhorn myself to try to discuss the law with him and to give him the names of cases from both the Florida Supreme Court and federal trial and appellate courts in Florida that support the immunity of Forte's company; I also hoped to explain the Dendrite process to him so that, assuming he could prove falsity and damages, he could pursue the anonymous posters if that was his client's choice. Hirschhorn bragged that he is not just a member but the founder of the First Amendment Lawyers Association, but acknowledged that he himself did not know anything about the law in this area; instead, he said, he hires others who know the law to help him.
But when you go on the attack with an internet entity, particularly one dedicated to outing scum like 800 telemarketers, you should anticipate that word of your antics are going to become widely known. Unless you're not only correct in your attack, but prepared to have your conduct widely scrutinized, the bluster is going to come back to haunt you on the internet forever. Whereas before nobody really knew much about "nationally renowned" Joel Hirschhorn, now lots of people do.
Then there is the very sad story of Arthur Alan Wolk, whose crusade against Overlawyered took a turn for the worst after he lost his defamation suit. Still filled with anger and accusations, Wolk has decided that he can relitigate by creating a conspiracy of evil blogs dedicated to his ruination. He's filed another suit against Overlawyered, Reason, and even thrown in some allegations about Popehat and ALM's Law.com to round out his recitation of horribles.
Wolk's ostensible purpose is to both cleanse the internet of the myriad bad things written about him and vindicate his honor, so he's chosen to pursue the strategy of suing a bunch of blogs and commenters for the same underlying conduct alleged in a prior failed suit by recalibrating his claims to sound in wild conspiracies of lies and deceit. What are the chances this is going to work?
Unlike Hirschhorn, Wolk sounds terribly sad and pathetic, an old lawyer trying to salvage his dignity in a world he doesn't know or understand, slinging some wild nastiness.
Defendant Walter K. Olson (Olson, also sometimes called Internet Bully and Internet Stalker or Overlawyered defendant), is an individual, a citizen and resident of the State of New York., a lawyer who now lives in Washington D.C. where he moved to become an instigator for the ultra right wing policies of Cato and who with Frank runs Overlawyered for the benefit of ultra right wing organizations and their trustees, and who assists Frank by editing the defamatory publications on Overlawyered to bring discredit on lawyers and judges whose views and experience may be different than his by failing to investigate the facts, false reporting, ignoring mandates of judges and lying to the public.
Who knew Wally was so evil? But then there's the libertarian thugs:
Defendant Reason.com is another Internet bullying site organized under the laws of the State of California, with its principal place of business in Los Angeles, California. It is one of the mouthpieces for Overlawyered.com and its mentors, Manhattan, Cato and Enterprise, which are co-conspirators, and is the attack dog for inter alia,
The Reason Foundation, a euphemism for the policies and goals of the Libertarian Party, a right wing fringe element that espouses what amounts to an abandonment of the institutions of our Republic and its substitution with a Government by putative journalists, self appointed intellectuals and right wing pundits but whose real goal is to work with Overlawyered.com and Olson, Frank, Manhattan, Cato and Enterprise, and their respective trustees to assassinate the character of individuals chosen for that purpose because they are a threat to the America without laws Reason Foundation wants. Reason Foundation raises funds for their anti-consumer, anti-Government, anti-court, anti-judge and often anti-Semitic, anarchistic views by proving to their donors how vicious they can be on their various media sites including Reason television,
Reason.com and Reason magazine Reason.com attempts to accomplish these ends by re-publishing with new commentary publications of Overlawyered, Frank and Olson for the purpose undermining the civil justice system in the United States, by forming an Internet tag team so if one of them is silenced for their falsity, the other simply republishes with more false and defunctory cormment to keep the libel alive.
The idea is to whip up a frenzy to prove their dedication to the causes of the Libertarian party, much like the Nazi's of the early 1930s, which will cull more donations from their very rich donors and blind them to the dangers to American institutions of their radicalism. It is believed and therefore averred that employees or agents of Reason. com are the anonymous bloggers.
And this is only paragraph 6 of the Wolk complaint (broken up from its single paragraph form into smaller, more readable bites), and already we've got the Nazis involved. Nothing ever ends well when the complaint compares the defendants with the Nazis, or when the plaintiff wears a tin foil hat.
What this reflects is the arrogance of lawyers in believing that they can control the internet. Neither bluster nor averment is going to bend the internet to our overwhelmingly mighty lawyer will. I know, it's hard to fathom that the world doesn't shake when we threaten or act, but the internet is a different animal from anything we've ever before known.
As lawyers, it's time to come to grips with some hard realities that now exist and appear likely to be the norm going forward. First, we are subject to ridicule online just like Babs Streisand. Expect that every swing of your big lawyerly muscle is going to be rebroadcast in unkind terms by a lot of people who carry weight on the internet that lawyers can only dream of.
Second, expect that our claims and allegations will be subject to scrutiny far beyond our wildest dreams, and there's a darn good chance that if there's a flaw, any flaw, even the slightest, it's going to be magnified beyond your wildest imagination and become a testament to your incompetence.
And third, and most importantly, regardless of all else, the internet is populated some very smart and some very crazy folks. If the former don't get you, the latter will.
In other words, it's a game that's very hard to win, even if you're absolutely right. To be fair, however, few of these internet antagonists are anything close to right, making the likelihood of perpetual online humiliation and ridicule a near certainty.
If your purpose is not to look pathologically stupid on the internet in perpetuity, then don't do it.