I also wanted to note that in his lawsuit against Above The Law, Prof. Jones seeks a clearly unconstitutional remedy: “Enjoining Abovethelaw to remove all articles and posts concerning Professor Jones.”
Even if the Above The Law posts are actionable, and can lead to damages liability — which I’m nearly certain isn’t the case — surely the remedy would be at most damages plus, perhaps, an injunction against continued distribution of the constitutionally unprotected speech. (There’s some controversy about whether such injunctions are allowed, even when they’re limited to specific statements that have been found at trial to be unprotected, but most recent cases that I’ve seen allow them, and there’s Supreme Court authority for that result.)
But here, Prof. Jones is asking the court to order total removal (not just redaction) of all posts concerning Prof. Jones, which would include links to and quotes from newspaper articles — clearly constitutionally protected — and the like. That would be a constitutionally impermissible remedy, even if some of the items in the posts were punishable.
drunkdriver says:
How is Prof. Jones incompetent? Let us count the ways. From substance, to form, to the very idea of filing a suit that only draws more attention to his embarrassing episode, there is basically nothing he’s done that isn’t full of fail. It all looks like something done by a NONlawyer.
This man is not qualified to practice law. I hope he teaches only inconsequential fluff courses.
Quote
November 3, 2009, 3:44 pmEvan says:
He teaches Constitutional Law, Criminal Procedure, and Employment Discrimination. I don’t think that he really thought he could the posts removed, it’s probably just a negotiating tactic. At least I hope so.
Quote
November 3, 2009, 3:52 pmSteve says:
I am getting ready to throw the flag for a piling-on penalty.
Quote
November 3, 2009, 3:58 pmrarango says:
[Comment removed for pointless vulgarity. –EV]
Quote
November 3, 2009, 4:03 pmSpecast says:
I don’t think this is incompetence, because I don’t think the point of this suit is to obtain the relief requested therein. The point is to publicize the fact that charges were dropped and that he is (presumably) innocent of a very embarassing, very publicized allegation of sexual misconduct. And it’s worked, to some extent: the reports I’ve read all mention those desired facts.
From a cost/benefit standpoint, isn’t this a great way to achieve that goal? He risks sanctions, but (a) such penalties orders aren’t very common, (b) he has a reasonable sympathy argument here, and (c) the cost of those sanctions is WAY less than the cost of buying this kind of publicity.
I’m not saying what he’s doing is right (it isn’t), but if you or I were in a similar situation, wouldn’t you at least think about a move like this?
Quote
November 3, 2009, 4:04 pmAnderson says:
Remembering the threads where John Yoo’s competence was discussed, including whether it had any bearing on his employment as a law professor, I wonder whether those who argued for “incompetence has no bearing” have the same view about Prof. Jones?
Quote
November 3, 2009, 4:23 pmdrunkdriver says:
Anderson,
can you point me to someone saying “incompetence has no bearing” on employment as a law professor?
Quote
November 3, 2009, 4:34 pmPatHMV says:
Specast... I had never heard of the man before this. Now I have heard of him, heard he was arrested for allegedly soliciting a prostitute, and drawn negative opinions of his professional capabilities. If his goal was to publicize simply the fact that his arrest record was expunged, he has failed epically, at least as far as I am concerned. I have no sympathy for him trying to use the law to bully someone’s exercise of their free speech rights, and the natural reaction of a great many people is NOT to believe that “expunged arrest” equals “completely innocent.” So no, even if his motive was as you suggest, it was not a good idea in any way, shape, or form.
Quote
November 3, 2009, 4:40 pmwm13 says:
Anderson: Like Brian Leiter, I am semper idem. Tenured law professors cannot be fired for incompetence in practicing law outside of their tenured employment. It simply isn’t on the list of causes for justifiable dismissal.
Quote
November 3, 2009, 4:44 pmCurt Fischer says:
Suppose you are right, and Prof. Jones has a conscious strategy to use the legal process as a vehicle for public relations. I would personally find the complete lack of respect for the law and legal process exhibited by adopting such a strategy to completely undermine Prof. Jones’ credibility as a law professor. I hope I’m not alone.
On a somewhat related note, did anyone see this column in the NYT about blackmail? It notes that blackmail is illegal unless “sanitized by lawyering”, that is, unless you include a threat of taking legal action, and then drop the suit/charges when you are paid off in an out-of-court settlement.
It makes me wonder: Are law students taught at all about these abuses of legal process and the law? Does the fact that these types of abuses are possible undermine “the rule of law”? I’m not a lawyer, so I don’t know, but I would be very interested to hear the conspirators’ views on the topic.
Quote
November 3, 2009, 4:49 pmPLR says:
If Holder can have a (politically convenient) lapse about the Fourth Amendment in the Shubert case, I don’t see why Jones can’t have a lapse about the First Amendment, especially if his client tells him the injunction is very very important.
And I bet he talks with his client every day about this case.
Quote
November 3, 2009, 5:02 pmthecabbage says:
Anderson: Like Brian Leiter, I am semper idem. Tenured law professors cannot be fired for incompetence in practicing law outside of their tenured employment. It simply isn’t on the list of causes for justifiable dismissal.
Then the list of causes for justifiable dismissal should be expanded. This is, in my eye, an indictment of academia generally. If a law professor practices law on the side, and does so incompetently, then it speaks to his ability to do his job.
It’s not that he should be fired automatically, but to suggest that this is not even a factor to be considered is astonishing.
Quote
November 3, 2009, 5:12 pmAnderson says:
If a law professor practices law on the side, and does so incompetently, then it speaks to his ability to do his job.
Emphasis of course on “incompetently.” Losing a case isn’t incompetence.
But as we’ve seen from these threads, this complaint is making the law faculty at Prof. Jones’s school look like a collection of nimrods. For the school to have no recourse is perverse. Exactly how much of a legal incompetent can Jones demonstrate himself to be, and the school still be legally obligated to hold him out to the public (including current and prospective students) as an example of their faculty?
... The bar has to be higher than “bringing discredit” — god knows from some perspectives, appearing on Glen Beck’s show or signing a letter to an editor could do that in *some* people’s eyes. What would be needed would be a hearing at which legal experts could testify as to whether “incompetence” was met.
Quote
November 3, 2009, 5:25 pmCassandra says:
As a former Miami Law Student, I have a question?
Are all critical race academics this incompetent or is it just the ones at the University of Miami? I always knew Jones and friends were useless. They inject racism into everything to cover up their sub-par legal expertise, and shout “racism” if you question them.
Fortunately now everyone else knows it, and Dean White can get out her pink slips.
Quote
November 3, 2009, 6:07 pmDavid M. Nieporent says:
It should be noted that it’s not clear that this professor is actually admitted to practice anywhere. Not Florida, nor DC or Maryland (where his bio suggests he worked in the past.) Unless under some name variant.
Quote
November 3, 2009, 6:07 pmHow a Smart Person Can Look Stupid « Tim Nuccio’s Blog says:
[...] Law Professor Seeks Clearly Unconstitutional Injunction [Volokh Conspiracy — Eugene Volokh] [...]
Anderson says:
It should be noted that it’s not clear that this professor is actually admitted to practice anywhere.
Interesting. That would take away the possibility that the school could rely on bar discipline (which can be a joke in itself). Good catch, David N!
Quote
November 3, 2009, 6:23 pmSpecast says:
A couple of you have disputed my notion that Jones’s lawsuit was a good way of seeking favorable publicity. And I share your thoughts about his fitness as a lawyer and especially a law professor. But the VC is a legal website and we (or at least most of us) are lawyers, so the technical merits of the suit are important to us. I strongly suggest, however, that most readers of, say, the Miami Herald or other local (to Jones) papers are less likely to focus on the technical merits of the pleading (which are unlikely even to be reported), and more on the fact that ATL falsely/erroneously accused Jones of a nasty crime and repeatedly roasted him (okay, hosted a roast) because of it. I strongly suspect that this wider group of readers will be much more sympathetic to Jones than you (and I) are. And, as everyone knows, the media will report the filing of the suit more prominently than they will report the eventual dismissal.
That’s a win for Jones.
Quote
November 3, 2009, 6:51 pmConstantin says:
No, it’s universal uselessness. You’ve diagnosed it properly.
Quote
November 3, 2009, 7:14 pmPatHMV says:
Still wrong, Specast. AbovetheLaw is also a legal website which is NOT widely read by the people of Miami. To the extent that the Miami Herald notices this and writes another story regarding Prof. Jones and his arrest, that simply reminds more average Joes that he was once arrested for allegedly going whoring. Those people had either never heard of his arrest before or had perhaps heard about it and forgot it. Prof. Jones is a local figure, ATL is some national blog that most people in Miami have never heard of, so they won’t care much about whether ATL did something wrong or not.
It was stupid, stupid, stupid, on every level for Prof. Jones to file this suit.
Quote
November 3, 2009, 7:57 pmMike S. says:
I don’t know about Florida law, but if the point was publicity or enhancing a negotiating position might that not be criminal abuse of process?
Quote
November 3, 2009, 8:12 pmdrunkdriver says:
Excellent observation: his complaint does not list a bar number or state that he’s admitted to practice in any jurisdiction.
What an embarrassment.
Quote
November 3, 2009, 8:25 pmBlargh says:
What’s the SoL on these causes of action in FL? Most of the ATL posts were in late October of last year...
Quote
November 3, 2009, 10:28 pmrjasonc says:
Here is a preview of the case.
http://www.youtube.com/watch?v=vnJnA_mt_UA
Quote
November 4, 2009, 3:02 amNickM says:
IMO this gives a new meaning to “Those who can’t, teach.”
Nick
Quote
November 4, 2009, 3:33 amDudeman says:
Much as I hate to seem to defend Prof. Jones, it is not “practicing law” to appear pro se. If he is not admitted in FL, a bar number would be irrelevant.
I’ll appear specially for the above purpose only. I agree that the Complaint is an embarrasment both in drafting and proof-reading. I would expect more from a 1L.
Quote
November 4, 2009, 9:43 amStephen G says:
I see no scenario in which a law professor’s reputation as a scholar would not suffer some damage by publicizing a complaint like Professor Jones filed.
Not only is the Complaint riddled with spelling and grammatical errors, the irony of an African American law professor who does not know how to spell the name of the President of the United States is remarkable. (Not to mention the obvious irrelevance of the POTUS to a complaint attempting to plead defamation related torts.)
The word “attempt” is apropos here, because Professor Jones, a professor of Constitutional law, somehow missed the fact that the Supreme Court of his home State of Florida expressly disallowed the common law tort of “false light in the public eye” a year ago, which is one of the three claims for relief that Jones tries to plead.
Essentially, Jones has traded a few people knowing that he was arrested for allegedly soliciting prostitution for everyone knowing the professor was arrested but never charged because (he claims) he was falsely arrested for DWB in an expensive car—as well as the entire legal community now knowing that (at least in this instance) Jones’ legal writing is appallingly bad and his legal research (if any) sloppy enough to get a first year associate fired.
There are also the inevitable questions about the underlying incident that at this point have gone undiscussed by Professor Jones, such as the substance of his behind-the-wheel conversation with a female undercover police officer if not about money for sex, that will soon become the subject of formal discovery.
No, this complaint was hastily conceived, poorly executed, improvidently filed, and has turned into a public relations disaster for Professor Jones and for the University of Miami School of Law.
Quote
November 4, 2009, 11:33 amThe_U says:
I attend UM. The vast majority of the students at the school read abovethelaw. Yesterday, everyone on campus was discussing this issue.
Quote
November 4, 2009, 11:41 amStephen G says:
PS: Florida’s statute of limitations for defamation is two (2) years. (Fla. Stat. sec. 95.11(4)(g).) Florida applies the single publication rule, meaning that the statute of limitations period begins to run when a defamatory statement is first published. (Fla. Stat. sec. 770.07).
Quote
November 4, 2009, 11:49 amTweets that mention The Volokh Conspiracy » Blog Archive » Law Professor Seeks Clearly Unconstitutional Injunction -- Topsy.com says:
[...] This post was mentioned on Twitter by Moshe Glickman, Zena Contreras, greychampion, Danette Miller, Mario Tankovic and others. Mario Tankovic said: The Volokh Conspiracy » Blog Archive » Law Professor Seeks Clearly ... http://bit.ly/lMQ7K [...]
More on Prof. Jones’s suit against Above the Law says:
[...] Volokh, a preeminent free speech analyst, weighs in on the complaint and is anything but complimentary. Above the Law itself collects links here, [...]
Myrtle Beach Attorney says:
If you would like to find information about Colorado Springs Real Estate, visit the Real Estate Book, the web
Quote
December 2, 2009, 8:58 pm