Wolk recently settled his lawsuits against Reason Magazine and against the Overlawyered defendants, and yesterday the defendants announced that settlement.  Reason posted a statement defiantly promising to keep its previous posts about Wolk online, but turning off the comment feature for the claimed purpose of protecting readers against being sued for what they might say in response.   Overlawyered went a bit further.

Overlawyered issued a joint statement with Wolk noting that it had learned, after making its original post, that Wolk had, in fact, “t[aken] precautions for his clients” in the incident that Overlawyered had originally criticized.  Not quite an apology, not quite a retraction, but certainly a correction of the record. 

At Reason, Jacob Sullum wrote about the settlement:

On August 12 he dropped the California complaint as well, and he recently agreed to a resolution consisting of mutual releases in which he promises not to sue us again for our past posts and we promise not to sue him over his litigation so far. That’s about as good an outcome as we could have reasonably expected, since the main issue for us all along has been maintaining the freedom to report and comment on issues of public concern.

But then Sullum concludes:

Wolk also sued certain pseudonymous Hit & Run commenters. He recently dismissed the suit against them, which was pending in New York state court, with prejudice, which means he cannot sue them again for the comments that were the subject of that lawsuit. 

Note to commenters: This costly and time-consuming litigation is over, and we do not want to see any further lawsuits filed as a result of comments on our site. Because it is impossible for us to screen and monitor all comments, we have disabled them on this post.

To be clear, no one enjoys being sued.  Whether justified or frivolous, there are costs involved of time, angst and, yes, money.  It’s painful to throw money in the toilet over complete nonsense, and as Overlawyered exists to point out, the American system doesn’t serve to protect the innocent civil defendant from the costs of our legal system. 

That said, we have to make a choice.  Stand up and take the hits, or hide under the bed and avoid any possibility of being sued, whether justifiably or not.  Paul Levy, after having written some posts about Wolk’s litigation, addressed this problem:

Wolk responded by threatening to sue me, as well as Techdirt and Scott Greenfield over their comments; he actually did sue me for about a week, although he dropped that action while muttering about how he was going to sue me later.  But with Techdirt, Greenfield and me, Wolk encountered a new phenomenon — bloggers who refused to cower before his threats, and even invited him to file suit if he thought he had a valid claim.  He has not done so, and I am confident that his bullying in that regard is at an end.  Note to other bloggers tempted to comment on Wolk: coraggio!

While I wouldn’t call it bullying, mostly because I hate this abused word, the reality is that one has to decide whether to stand up for things you believe in and, when someone threatens to take a punch or two, take the hit.

The defendants in Rakofsky v. Internet aren’t defending because it’s fun, but because they have made a few choices.  The first choice was to speak out against the egregious wrong that was done to a defendant in a murder case due.  The second choice was not to cower in the corner when threatened for having told the truth and said what needed to be said.  Despite the absurdity of Rakofsky having taken the offensive and attacked the blawgosphere, the defendants have to pay for their choice.  And they are, with one notable exception.  Unfortunately, New York doesn’t have an effective anti-SLAPP statute.

The case might be over by now, but for the delays caused by Rakofsky’s inability to find an attorney to represent him.  His original, nominal lawyer, Richard Borzouye, ran for cover. His  Craigslist ad didn’t pan out.  Bear in mind, had Rakofsky been prosecuted for his conduct, many if not all of the defendants in this case would be the first to defend him.  But Rakofsky isn’t a defendant. He’s the plaintiff, the attacker.  Aside from the fact that his claims are absurd and doomed to fail, what sort of perverse, twisted lawyer would take up his cause?  None, it would appear. 

To the credit of the profession, not a single lawyer, no matter how greedy, desperate or psychotic, has been willing to go so low as to be the hired gun in such a disgraceful attack.  I’m not sure I would have believed that there wasn’t some lawyer, somewhere, who was so slimy that he would grab the money and try to use the notoriety of the case for his own benefit. 

Some lawyers relish in trying to spin a dead loser into “the good fight,” as if no one would notice that they rep’d the attacker and were lying through their teeth.  That no lawyer is that disgraceful comes as something of a pleasant surprise. We’ll see whether disappointment will eventually set in should Rakofsky finally find someone who shares his “values.”

Yet Jacob Sullum’s Wolk post, where he closes the comments to his readers to avoid any further “costly and time-consuming litigation,” provides a disturbing legacy.  He has silenced his own readers in capitulation.  This time, it’s to avoid a known quantity, a particularly litigious plaintiff.  What about next time?  The internet is filled with potential plaintiffs who will take umbrage with our posts, our disclosures, our descriptions.  People get angry about stuff all the time.  Threats fly constantly.  Takedown letter come in from lawyers regularly.  It happens.

We have a choice.  Those of us who have chosen to write about substantive issues of public interest can either shut up or man up.  It doesn’t matter that we’re protected by law.  It doesn’t matter that claims are frivolous.  We are the targets.  And when we capitulate to threats or litigation, we only make ourselves bigger, easier targets. 

Of course, what’s the big deal of suffering the burdens of threats and litigation when we’re enjoying the vast riches and great prestige of blogging.