Cert Denied, Attack The Messenger

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 In a non-precedential summary order, the Second Circuit affirms.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.

14 thoughts on “Cert Denied, Attack The Messenger

  1. That Anonymous Coward

    Ah the 230 is the downfall to everything sacred brigade.

    I read the original complaint and what kept shocking me was what seemed to be a complete lack of doing anything but deciding Grindr was at fault & putting all efforts into that.
    He & many of his friends kept reporting the profile as fake, but not one of them seemed to ever suggest calling the cops on the ex.
    While they did mention some ‘police reports’ those seemed to only be about some of the more aggressive suitors who turned up on his door.

    There was talk about impersonation on platforms involving the couple (its been a minute so I forget who catfished who) so there was a “smoking cell phone” pointing to the possibility this wasn’t a massive corporate conspiracy but a nasty breakup with an ex.

    Grindr sent them to my job b/c they tracked me everywhere!!! – Umm didn’t your ex know where you worked?

    Grindr sent them to my home!!! – Umm didn’t your ex know where you lived?

    Grindr might need a better reporting system, much type was spent extolling the virtues of Growlr (IIRC) who had a clear way to report impersonation & them comforting the target. They even went so far as to ban the ip address the account used… (protip: sounds good, does nothing)

    An actual police report c/s/w/ould result in an investigation, requests for information, records tying it to the bad actor, possibly arrest (NY Law, not my jam). Instead much time was spent trying to get Grindr to notice the difference between a fake & real accounts, concocting a scenario where they were GPS tracking him & generating conversations arranging for hook-ups.

    Side note: I’m teh gay one, I follow lots of porn stars. They are constantly trying to shut down accounts impersonating them, using their name to collect money. I’ve heard of several real stars accounts being shut down for impersonation… of themselves. There is a large pool of scammers, stealing money from users, and right or wrong those reports might get more attention than my ex is pretending to be me & setting up dates.

    While I feel bad that he had pushy “dates” showing up, my sympathy hit its limit when the number is 1200+ and there is no lawsuit or police report about the ex. I could get the ex to stop or I could get a few more dudes showing up and add some more 0’s to my settlement.

    What happened to her client was so horrible she had no problem wishing it upon someone who disagreed with her view of the situation.
    She is heading to Congress to demand they fix 230… and all I can hear in my head is Tiffany screaming how 230 is a conspiracy to protect terrorists and harm her. (Remember she listed her dog as a witness to her being ‘stalked’)

    Reply
    1. SHG Post author

      Herrick’s response left some obvious gaps, which belie his complaints. On the other hand, Grindr didn’t cover itself in glory here either.

      Reply
      1. That Anonymous Coward

        Grindr is in a position that many things find themselves falling into, being a tool of evil.
        Tech never seems to prepare for the bad outcome, even if they’ve seen it happen to others.

        Remember Boaty McBoatface?
        Public polls for names are a REALLY bad idea if you don’t have some sorts of controls, the fact there were no controls after the 100 other times these things were hijacked is magical thinking that it won’t happen to us this time. (If they had to use the highest rated names the newest Mountain Dew Flavor would have been called Gushin Grannies, 2nd place wasn’t much better it was (word explicitly banned from this blog) did nothing wrong.)

        The problem is every possible solution can open the door to more problems, so many never start. If we don’t have a report this profile button, we don’t have to look into it. If we give them the button people will misuse it, then we have to deal with appeals, then we have to deal with more reports and tit for tat.

        If only 1 out of every 1000 users is stalking their ex, its not a big enough problem to worry about yet. Paying customers probably get better results.

        FB makes people send in “proof” of who you are the McLovin DL was accepted, actual ID was called fake.

        Grindr needs to look at what happened and what they reasonably could have done, but the app can be run from a pay as you go/burner phone. You can open 200 email accounts in minutes, you can cycle through pictures of your ex, your IP will change. Barring a national ID system that confirms people as people (and well thats working so well) how much can any app do?

        There is a lot of mystery about what Herrick did, said, etc. that leaves me questioning if this is just one of those times when both sides are crappy & the only winner is us b/c 230 survived.

        Reply
  2. JR

    We existed for a long time without 230, but we also didn’t have the inter webs for long time. I think most people see what will happen if 230 gets gutted. Whatever twisted logic used can take down lots of other things. I can’t wait until I can go after Charter Cable because I don’t like a reply to post at SG. Maybe a should hit USPS because I don’t like message on some junk mail.

    I see fun times ahead.

    Reply
  3. shenebraskan

    “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.”

    I dunno how many times this lesson has to be learned before “both sides” get it. I wish both honest, genuine conservatives, who say they want the gummint out of people’s business, and honest, genuine liberals, who say they value free speech, could just get along. But, if wishes were horses…

    Reply
  4. Everett

    I think part of the problem is the lack of practical remedy. Using your list…

    Suit against Grindr wasn’t Herrick’s only recourse:

    There was criminal prosecution of the ex >> Which is not in Herrick’s control. He can go to the police, he can exhort prosecutors to do something, but they have no obligation do so, and he cannot make somebody file a criminal complaint, or even take him seriously.

    There was a civil suit for damages against the ex. >> Assuming that the ex could make Herrick whole for the harm he caused, he would have to find an attorney that was willing to take a risk on that, survive an AntiSLAPP, and hope that there was still some recovery left. The attorney is running a business. Herrick might be fortunate enough to find a pro bono willing to take the case, but it’s tough to find somebody willing to take on a full blown litigation for free. And all of the assumes that there is something to recover from Herrik’s ex. Even if Herrick WON against his ex, there is at least one California Supreme Court case that interprets 230 to mean that the Interactive Computer Service doesn’t have to take down defamatory speech.

    For its part, Grindr could have chosen to help Herrick, 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. >> Which is somewhat the point. Section 230 gives Grindr the freedom to control content on its service, but no incentive or motivation to do so.

    I agree that the person responsible should be the speaker, not the megaphone. But we have given injured individuals no practical means of doing that without the speaker’s cooperation.

    Reply
    1. SHG Post author

      Herrick isn’t special. Many injured parties have no recourse, practical or otherwise. On the other hand, it’s theoretical since Herrick never bothered to try any other avenue of redress, and can’t take comfort in the apple being sour anyway.

      Reply
    2. That Anonymous Coward

      “For its part, Grindr could have chosen to help Herrick, at the very least responded to his cries for help, but it didn’t”
      Where is this shown?

      Unsworn statements in a complaint that also claims that Grindr was secretly using the GPS satellite network to send people to his job demanding the hot sex.
      This is like the mentions of police reports, but no details offered about the facts.

      I’m pretty sure that someone talking to the media that the police ignored someone’s ex sending men seeking rape play sex might motivate them to get off their behinds. I can recall several cases where psychos did this to people & the police did investigate and bust the perpetrator.

      You manage to list all of these possibilities as if they are the only possible outcomes from these actions, I don’t share your pessimism that nothing will work so no reason to try (but then people told me I’d never beat Prenda… oh look they are in prison).

      1,200+ men send to his home & job… and the only police reports seem to be about the few guys who were pushy & unwilling to accept they had been catfished.
      To send 1,200+ men to bother your ex requires a lot of anger, one starts to wonder if someone was picking at the scab. (My mind recalls a statement in the filing about previous catfishing between the couple.)
      1,200+ men sent to his home/job… but he still maintained his own account on the site that was the portal sending forth creepy dudes.
      1,200+ men… a couple police reports, “me & my friends sent reports about the fake account”
      The first 5 randoms that show up to meet up with me for sex that I did not setup will result in a phone call to the cops.

      Reply

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