The Ethics of Publishing Cease-and-Desist Letters

In the Internet era, it has become commonplace for people to publish cease-and-desist letters that they or others have received. This makes possible a discussion about whether the cease-and-desist letter was indeed legally sound, or was just blowing smoke — and, therefore, whether the sender was justified in sending the letter. (See, for instance, the Academic Advantage cease-and-desist letter, though that involved an extreme example of frivolousness.) It can also help advance a discussion about the role of legal threats in constraining speech (rightly or wrongly) online. The ChillingEffects.org site is one example of an organized means of doing this. Google, among others, apparently forwards cease-and-desist letters that it gets to that site. But often the letters are just posted on various blogs.

It seems to me that this practice is helpful, especially in an environment where lawyers often send such letters to non-lawyers, or to small companies that might not be able to afford litigation, or even a consultation with a lawyer about the letter. The letters offer a powerful tool for lawyers or for those who can afford lawyers to suppress speech even when the speech turns out to be legally protected. Not all letters, of course, fall in this category; some of them are eminently justified, if the speech is indeed unprotected. But the general practice of often posting such letters still strikes me as good, especially in the absence of any reasonable privacy claim in such letters (setting aside unusual circumstances).

Prof. Brian Leiter’s post from a few weeks ago offers a different view, though, and characterizes one post of mine that did this as being “unbelievabl[e]!” and “creepy, malicious behavior.” Here’s Prof. Leiter’s criticism:

*When The National Law Journal profiles five lawprof bloggers, you know law blogging has gone mainstream–but most striking was that my description of Eugene Volokh’s blogging style as “passive-aggressive” struck a chord with a number of readers (as one Harvard professor wrote me: “les mots justes”). The aptness of the characterization dawned on me about five years ago (if readers will forgive a slight but perhaps interesting tangent). Briefly: a mentally ill individual, with what turned out to be a long history of harassing those against whom he had grievances, real or imagined, created a blog devoted to insulting, defaming, and harassing me (and my wife, my children, my parents, and anyone who reminded him of me!) and initially appropriated my name for the URL address in order to drive traffic to his ‘hate blog’. (The blog is now defunct.) After consulting with my colleague Mark Gergen about the law, I e-mailed the blog service provider that this was a tortious misappropriation of my identity (the URL was then changed). That would have been the end of the matter, except the proprietor of that service forwarded my e-mail to Volokh, who–unbelievably!–decided to post my letter on his blog, linking as well (and thus giving newfound publicity) to the vicious hate blog of the disturbed individual. Talk about creepy, malicious behavior under the guise of discussing a legal question! It didn’t take much judgment to determine that the author of the hate blog was out of his mind (the repeatedly expressed wish to “make Brian Leiter cry like a baby” might have been a hint), nor did it occur to Volokh that perhaps my private letter to the service provider was not a fit subject for his commentary in a public forum. A true tour de force of passive-aggressive blogging!

Here is the post of mine to which Prof. Leiter is referring:

Keith Burgess-Jackson runs a site that’s strongly critical of Texas law professor Brian Leiter. That site used to be http://brianleiter.powerblogs.com, but powerblogs has moved it to http://academicthug.powerblogs.com following this letter from Brian Leiter:

… I am writing to put you and your company, American Powerblogs Inc., on notice that a user of your service, Powerblogs, has engaged in tortious misappropriation of my name in order to advertise and draw attention to his web site. Keith Burgess-Jackson, who runs the site in question (www.brianleiter.powerblogs.com), has not received my permission to register my name, or any variation of my name, or to otherwise utilize my name, or any variation of my name, in order to promote or otherwise identify his site. Please close down that particular URL immediately. Thank you for your prompt attention to this matter.

Very truly yours,
Brian Leiter
Joseph D. Jamail Centennial Chair in Law,
Professor of Philosophy, and Director of the Law & Philosophy Program
The University of Texas at Austin …

Here’s my question for those who know tort law, and especially Texas tort law: Is Prof. Leiter’s legal claim at all sound? My sense is that it is not:

(1) There’s no right of publicity claim, I think, both because the site doesn’t make any money and is thus not commercial, and because it’s opinion writing rather than advertising or merchandising.

(2) There’s no right of privacy claim (at least in the disclosure of private facts sense), because no embarrassing private information is being disclosed.

(3) One could argue a “false light” invasion of privacy theory, claiming that the use of Leiter’s name would suggest to some readers that he is the one posting to the site, but I strongly doubt readers would draw such an inference, given the site’s obvious content.

Am I mistaken? Are there some special Texas doctrines that cut in Prof. Leiter’s favor? Please post only if you are knowledgeable about tort law; I’m curious what the legal rules are, not what they in theory ought to be. (The ethics of the situation, as opposed to the law of it, are also a separate matter that I leave aside for this post.)

This led to an interesting discussion in the comments; some commenters suggested that Prof. Leiter was correct, and that the blog’s name was potentially tortious, and others disagreed. My thinking continues to be that Prof. Leiter was not correct, and the use of the name in this context is not “tortious misappropriation.” (For an interesting case dealing with this general issue, but under the rubric of state and federal unfair competition law, and federal trademark and anticybersquatting law, see Lamparello v. Falwell (4th Cir. 2005), which dealt with a falwell.com criticism site.)

But in any event, here I want to deal with the broader issue of whether it’s “creepy, malicious behavior” to post such a demand letter — especially given a serious question about whether the letter is accurate with regard to the law — and whether it should have instead be treated as a “private letter” that is “not a fit subject for his commentary in a public forum.” As I suggested above, I think such public commentary on letters sent by lawyers making legal assertions in an attempt to get online speech taken down (or moved) is indeed suitable (especially, but not only, when the authoring lawyer is himself a relatively prominent figure). But I’d love to hear what readers might think.