Mark Bennett, the Texas Tornado, let me know that the Supreme Court denied certiorari in Scott Ogle suit against Texas. It was unfortunate, but unsurprising. Exceptionally few cases get to the big show, regardless of wrongfulness on the law or the “injustice” of the outcome. This makes little sense to non-lawyers, as they see SCOTUS as the court of last resort, the last chance to correct a grave wrong. Perhaps it should be, but it’s not.
The same day, the same order list, included another case for which cert was denied, Herrick v Grindr. Herrick was the victim of an ex-boyfriend who weaponized the dating app Grindr to make Herrick’s life a misery. But Herrick wasn’t suing the guy wielding the bludgeon, but the bludgeon, for the harm done him. Eric Goldman explains.
This case involves an e-personation attack caused by fake Grindr postings from an ex-boyfriend. The victim claims to have contacted Grindr dozens of times seeking relief, to no avail. The victim sued Grindr for the attack, styling the case as a products liability claim to get around the obvious Section 230 immunity. Nevertheless, the lower court twice ruled for Grinder largely on Section 230 grounds, in a thoughtful and powerful opinion that earned the Technology & Marketing Law Blog’s Judge-of-the-Day award, followed by an even more thoughtful and powerful second opinion. In a non-precedential summary order, the Second Circuit affirms.
The focus wasn’t on Herrick, either to disparage him or his claim, or to trivialize the harm his ex-boyfriend did to him which was extreme and outrageous. It was a straightforward Section 230 safe harbor analysis, that as awful as people can be to each other, the protection of Section 230 means that the weapon used, in this instance Grindr, isn’t liable for the viciousness of the person who abused it, no matter how badly it harmed the victim.
This is law. People do bad things. Bad things happen to people, but the law addresses the full panoply of human conduct, not just the particularly bad outcome in any individual case. No doubt the misery Herrick’s ex did him was substantial, but that doesn’t mean a hole magically develops in the law so that Herrick’s suit can proceed while the law otherwise continues to serve its purpose.
Then again, for some of those on the Herrick’s side of the fence, there is no concern for Section 230 safe harbor, which is seen as nothing more than a protection that allows websites and apps to avoid the responsibility they would impose to protect their victims from harm. This is a view gathering support from both the right and left, both of which abhor the idea that they can’t dictate the content of the web to suit their demands and desires.
Ironically, they may share a hatred of this safe harbor, but their notions of who would be protected if it were gone are opposite. Neither seems to have the self-awareness to grasp this distinction, and both believe that they will own the future such that their vision of authoritarian control will prevail. But I digress.
Suit against Grindr wasn’t Herrick’s only recourse. There was criminal prosecution of the ex. There was a civil suit for damages against the ex. But Grindr was the “deep pockets,” and so suit was filed against it. For its part, Grindr could have chosen to help Herricks, at the very least responded to his cries for help, but it didn’t. Much as it still received the protection of Section 230, this was no shining moment for Grindr, which proved itself as callous as possible. And, to be fair, the complaint’s effort to circumvent Section 230 to hold Grindr liable for its inexplicable failure to help Herrick was well done. Still, the law precluded relief.
After the Supreme Court issued its order list on the first Monday in October, Prof. Goldman twitted about the denial of cert in Herrick v. Grindr, noting his earlier writing about the case and the Second Circuit’s decision. Herrick’s lawyer, Carrie Goldberg, did not take it well.
It’s understandable that a lawyer, particularly a lawyer for whom professional detachment is a struggle, would be disappointed to learn that certiorari was denied. Indeed, not only was this bad for the plaintiff, Herricks, for whom no legal solace against Grindr will come, but for the larger war against Section 230 that persists in preventing hegemony of the internet. It hurts to lose.
But Goldberg’s reaction to Goldman’s twit appears to be a call to make him suffer the same harm that her client suffered, to implore some unduly passionate nutjob to e-personate Goldman so that he should become the target that Herrick was at the hands of his ex-boyfriend. As sick and twisted as Herrick’s ex might have been, this effort to target Goldman for attack, for harm, was even worse.
Eric Goldman’s attention to this case was as a lawyer, a law professor. While Herrick surely suffered terrible harm, it was at the hands of his ex-boyfriend. Goldberg, a lawyer, would be playing the ex-boyfriend to Goldman, the academic, not because he did anything to her or her client, but because his view of the law differed from hers. And his view of the law was, and remains, correct.
So Carrie Goldberg would call on her twitter followers to attack a law prof, as her client was attacked by some sick guy he picked on Grindr, for disagreeing with her legal position?
In an attempt to be generous, maybe this wasn’t Goldberg’s purpose, even if that’s the noxious odor that emits from her twit. Maybe she was just venting about the “injustice” done Herrick by the denial of cert and took it out on Goldman, because he was her legal nemesis and she lost all control over her more vicious impulses in a fit of pique.
But when a lawyer calls for an attack on a prawf whose commentary disputes her legal theory, “destroy Goldman like my client was destroyed by his ex-boyfriend,” we’ve reached a new depth. If this was just extremely poor judgment born of excess emotion, then the twit should be deleted and an apology offered. If not, then there is a serious question of whether this is the sort of conduct one should expect of an attorney.
Goldberg’s twit is inexcusable. Hopefully, when she comes to her senses, she will see that and make amends. Lawyers don’t call for attacks on other lawyers because they disagree with their legal position. Not sane ones, anyway.