Freedom Is A Two-Way Street (or why Libertarians need lawyers too)

At Techdirt, Tim Cushing tells of an utterly astounding situation at the hands of some website that sells stuff called Kleargear, which curiously subtitles itself “Geeks Rule,” which had in its terms of sale (since removed following its public outing and disgrace) this fascinating non-disparagement clause.

Non-Disparagement Clause

In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees.

Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid.

Whoever wrote this should get an award, both for his fertile imagination and his ability to completely ignore rational transitions. It’s not easy to be that crazy.

As Tim explains, Jen Palmer found out about this clause the hard way, after not receiving her order from Kleargear and leaving a bad review at Ripoff Report.

That was the end of it, Jen thought, until three years later when Jen’s husband got an email from Kleargear.com demanding the post be removed or they would be fined.

Fined?  Like the government, except by a website?  Come on, that can’t be possible, can it? Not only did Kleargear demand payment of its fine, but when the fine wasn’t paid, it reported the fine as an unpaid debt on the Palmer’s credit report.  The full story is definitely worth your time to read.

So, outrageous, right? Absurd? Ridiculous? Wrong?  Except for the fact that many on the internet extol the virtues of freedom to contract without regulation.  After all, we’re all big boys and girls, and we can pick and choose who we want to do business with. And we all read the terms of service on websites thoroughly and make intelligent decisions based on them. And nobody would be so utterly insane as to include a term that would fine us $3500 for uttering a negative word, in the interest of “fair and honest public feedback.”

At Popehat, Clark wrote something nice about lawyers.

I’m not a lawyer, but I’m intensely interested in the law, read law blogs, and read court decisions for fun. After a decade of that … I probably know less about the law than a 1L in the second week of September.

One thing I have learned, though, is that in addition to the regulations and laws, there are vast bodies of precedent, doctrine, and just process dealing with how one goes about interacting with the law. The more I learn the more I shake my head at the barracks blog “lawyers” who want to make arguments based on what they consider the plain reading of some statute or another. Oh, sure, if we’re just talking Platonic ideals and hot air, it’s good stuff, and I like that sort of conversation myself.

…but if we’re talking about actually going to court and interacting with the machinery of the all-powerful state, it’s not remotely enough. Would you voluntarily show up at a fist fight after having read an e-book on wrestling, when your opponent is a professional bar bouncer?

Among the many things that disturb me greatly is that people turn to the internets to learn things about the law, often finding exactly what they’re looking for, confirming their belief that they’re right and validating their view of how to handle legal stuff.  The problem is that they too often read what non-lawyers have to say, getting their legal advice from Gawker or Boing Boing rather than, say, from a lawyer.

In a follow-up post, Clark addresses the trope that the law ought to be “simple,” so anybody can do it.  Following up on a thoughtful comment to his first post, he gives some examples of how things get complicated despite how simple they appear when you don’t want to think too hard.

I could go on for hours.

Young libertarians who haven’t seen how crufty and hairy the real world is often want to say “specify it in a contract!”, but in the absence of an accreting law code, contracts might end up being 20,000 pages long…and those 20,000 pages could be used to harbor weird gotchas and surprises, so reviewing contracts would suddenly cost much much more than it does now.  So it does make sense to keep the accumulated decisions outside the contract proper, in some other document.

Lawyers, at least the honest and reasonably competent ones, are no less aware of the nightmare of the system.  We live it. We sit there for hours waiting for our ten seconds to save a life or fortune.  We stare into the face of the person who put their trust in us, trying to explain the insanity of why the IRS can seize the bank accounts of an ordinary business because, well, just because.

It’s easy to hate lawyers. We are the visible cogs of a badly broken wheel, and the ones close enough to smack.  We get it. But if you think you would do better without us, you’re wrong.

We aren’t the ones who fouled the system.  I hate to be the bearer of bad news, but you did it to yourself. You demanded the government fix every evil to make it a perfect world, and they did as you wanted.  You came up with a brilliant explanation of why you deserve to win your case, just as the other guy did the same for his case, and each of you thinks it’s so simple that no lawyer should be needed to prevail. You inserted a clause for a $3500 fine if someone says anything mean about you.

Lawyers aren’t here because we made up an arcane, terrible system to force poor, innocent people to pay us.  We’re here because you would destroy each other without us.  And what we do isn’t easy, and you can’t do it yourself.  Sure, out of 100,000 cases, a guy without a lawyer wins one, and it makes the headlines.  Ask yourself what happened to the rest of the guys without a lawyer. It’s not pretty.

If you don’t like lawyers or the law, get along with everybody.  But you can’t do it, and that’s why we exist.

25 comments on “Freedom Is A Two-Way Street (or why Libertarians need lawyers too)

  1. AP

    I’m reminded of the occasional client who’s well read, smart and usually in the science/engineering/computer field (sorry about the stereotype here) who tells me he’s read “the law” and his defence is “logical” and the judge will understand all this once I/we explain it to him.

      1. Brian Drake

        I suppose I should avoid doing business with Kleargear in the future, lest they reinstate the Clause retroactively and require me to turn over my firstborn. I’d hate to see my failure to do so on my credit report. Ridiculous.

      2. Nigel Declan

        If you wanted to be extra, extra, extra sure that the agreed-upon price of, say, seventy-two million dollars was not mistakenly recorded as seven point two billion dollars, in case a decimal point was forgotten, it is probably worth shelling out for the extra ink, even if it means having to spend an extra one (1) or two (2) seconds of contract reading time.

        1. SHG Post author

          Or just check to make sure the number is right? Actually, I know the answer (and I was only joshing) that by spelling it out as well as writing it numerically, there can be no mistake or alteration as to the correct number. See? I coulda been a civil lawyer.

    1. David

      The question to help avoid automated posts I got was “three + 4 =”. I think that needs to be fixed so that questions are in the format e.g. “three (3) plus (+) four (4) equals (=)” with the correct response being “seven (7)”.

      That aside, I do wonder what the legal effect if any might be in various jurisdictions of someone clicking to agree to terms and conditions, but then immediately sending an e-mail indicating that it had not been possible to express conditional or modified agreement, hence the e-mail — and that failure to respond within a reasonable time would be deemed acceptance of the modified terms (e.g. objecting to arbitration, or choice of laws or forum, etc.)?

      1. Marc R

        Obviously contract laws vary by state, but in your hypothetical the likely result is:

        Company A says “to accept our TOS, click here.”

        You click. Then you send email “delete paragraphs 1,3, and 4, and add ‘the laws of NY rather than arbitration in Antarctica apply.'”

        Company A never responds. You carry on until someday a dispute arises and Company A says “please select one of the 3 following arbitrators from Ice Zone 4 so we can have arbitration by helicopter within 72 hours.”

        You respond “too bad, we’re going to NYC per my email that you never responded to.”

        YOU LOSE.

        Company A says our TOS is an offer which you accepted by clicking. Your email was merely an offer to amend the contract you already accepted. By not emailing you back, Company A did not accept your modification.

        1. SHG Post author

          This is a constant question by non-lawyers why they can’t change things they don’t like through a bit of craftiness, outsmarting the bad dude and turning the tables on them. The short answer is because that’s not how it works, and if they were on the other side, they might better understand why this wouldn’t, and shouldn’t, work. It’s very hard to overcome the myopia of wanting to be right.

          The solution is unfortunately clear and unpleasant. If you don’t like the deal, don’t take it.

  2. Jim Majkowski

    I can sympathize; if consumer contracts can feature mandatory arbitration clauses, why cannot Kleargear include non-disparagement clauses with fanciful liquidated damages provisions? Why should those pesky statutes make a difference?

  3. pj_cryptostorm

    We ‘outed’ a privacy service earlier this year with a clause in their ToS stating that, at their sole discretion, they could cancel a paid customer’s service, keep their (prepaid) money, demand “damages” to be calculated at their sole discretion, and if said damages were not paid timely, sue (thereby to receive attorney’s fees, plus additional stipulated damages) their putative “customer” to boot.

    Which seems a bit much.

    Some folks were shocked – shocked! – to find such language in terms of service. Most couldn’t be bothered to care. The clause is still in there, and people are still giving money to the company in question. No word on how many “customers” they’ve sued yet, or not.

    Then there’s the ToS for leasing dedicated server hardware. Don’t ask.

    Read a few dozen ToS from the tech world, sadly, and a few dozen fairly egregious terms will jump right off the page. Nobody really seems to care – which is something of a mystery. Good to see this one caused a ruckus; sobering to realise there’s quite likely similar language in a few dozen – or a few hundred – other ToS out there, as-yet undiscovered…

  4. PDB

    I like to tell people that there would be no need for lawyers — if only people would stop trying to screw each other over or hurt each other. Wishful thinking.

    Just as if people would eat their vegetables and exercise regularly, there would be (almost) no need for doctors.

    Humanity is doomed.

    1. UltravioletAdmin

      Nah, even when people aren’t trying to screw each other, people are going to need attorneys. Just because someone’s honest doesn’t mean there isn’t confusion or blame. Or mean there may not be an honest dispute about intentions and money.

      Now would it be cheaper in this ideal world? Yeah, but likely my tuition wouldn’t of been more than my parent’s house.

      1. SHG Post author

        I don’t think he was being literal. He was making a point about people’s litigious and belligerent nature.

  5. Pingback: New From KlearGear: Free Speech, Only $3,500 Plus Shipping And Handling | Popehat

  6. Frank

    You’ll probably need a lawyer if such a circumstance happened to you, but you honestly think any judge is holding up this agreement if it gets before him or her? This ain’t a case that should strain counsel in stomping all over.

  7. Carlos

    One overlooked thing from the source article, the non-disparagement clause did not exist at the time of purchase.

  8. Legomenon

    Ha ha, great post. Everybody hate lawyers and cops, but as you say, if people just got along with each other, we wouldn’t need them around.

  9. Charles B. Frye

    I’m thinking of putting in my contract with clients a clause requiring them to read this post. Then, when they don’t, informing them that I am displeased with them and automatically disqualify them from consideration for “Client of the Year.”

    Good post. Thank you.

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