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.
Crunchy Frog says:
Even though Leiter was morally justified in sending the C&D letter, the question of it having legal force is still entirely open, and deserving of conversation on a law blog. Unfortunately for him, whatever sympathy he might have garnered has now evaporated.
Some people just can’t resist showing their asses in public.
January 25, 2011, 2:17 pmStephen Lathrop says:
Don’t worry too much about people who can’t afford a legal consultation. They’re judgment proof, and the legal barracudas aren’t going to waste real resources going after them. Everybody knows it, on both sides. Once you get poor enough, you get to say whatever you want. “Freedom’s just another word for nothing left to lose.”
January 25, 2011, 2:19 pmx says:
Leiter just doesn’t get information.
The prescient adage of the open-source software movement was that “information wants to be free.” Increasingly, it is becoming clear that information actually cannot be anything but free (at least, not for very long).
Of course it’s suitable to post his letter on here.
January 25, 2011, 2:20 pmKazinski says:
Obviously when writing anything about Brian Leiter, the proper thing to do would be do clear it with him first, and of course let him edit the content to his liking. As I’m sure he extended the same courtesy with you, before he called you “passive aggressive” and your criticized your “creepy, malicious behavior.”
Lets face it there will always be individuals out there with that kind of pathology, that see others perceived infringements as totally beyond the pale, no matter how minor or innocent; but their own behavior is always completely justified, and even restrained given the outrageous behavior they are reacting to.
January 25, 2011, 2:21 pmBill Poser says:
I fail to see the problem with your posting of Professor Leiter’s letter. On the one hand, as you say, it poses legal questions of public interest suitable for discussion on this blog. On the other hand, it contains nothing of a personal nature that Prof. Leiter might reasonably wish to remain confidential, nor does it appear to be something sent off rashly in a fit of emotion that he might soon have regretted sending and would not have pursued.
January 25, 2011, 2:22 pmTaylor Swift says:
What makes this seem “creepy” and “malicious” or “passive aggressive” is the failure to acknowledge the personal dimension of the issue. For Professor Leiter, the cease and desist letter is inseparable from the issue of the blog itself, which understandably upset him. By discussing (and expressing skepticism about) a problem so personal to Professor Leiter as if it were merely a hypothetical problem, you caused Professor Leiter to believe that your true intention was to personal harm him through the guise of nonaggressive academic analysis.
Of course that is what lawyers do all of the time–there is very often a real person and a painful real-life problem behind the fact patterns we discuss for purely intellectual ends. Ordinarily, however, we can justify this distance between the facts and our reactions to them because they occur to people who are, socially or chronologically or geographically, “far away” from us. In this case, however, the fact pattern involved a person who is at least socially very close to you–a fellow prominent legal blogger.
Arguably discussion of facts “close” to us could produce even more meaningful conclusions–we may in fact be distorting the issue by ignoring the personal dimensions involved.
January 25, 2011, 2:23 pmHm. says:
IANAL and I think this time that might make my opinion count even more!
I think your reasoning is quite sound. Even if the C&D letters are legitimate and the speech they’re targeting isn’t protected, it serves for the betterment of the public’s knowledge that these letters not only be posted, but also discussed.
I can’t see how it would be “creepy, malicious behavior.” The C&D targeted websites are already publicly available to view. The matter that is discussed in the C&D letters is part of the public sphere by virtue of being on the internet. If you had gone through his trash and published truly private legal matters, then that would be creepy and malicious, and I bet illegal anyways.
What’s creepy and malicious was the blog dedicated to hating one guy. I can see why _he_ would think it’s creepy and malicious to publicize the blog by blinking to it, but it’s not as if the publicity was positive.
January 25, 2011, 2:26 pmEugene Volokh says:
Stephen Lathrop: Are you sure that’s right? My sense is that many people are in the zone where they have something to lose, but not enough to be able to spend tens of thousands of dollars on litigation.
Say, for instance, that you have a house, with a value above whatever homestead exemption is provided under your state’s law. Or say that you have a small business with assets worth tens of thousands of dollars. Or say that you have twenty thousand dollars in a bank account.
You can’t really afford to defend even a relatively inexpensive court case (relatively inexpensive as court cases go), at least unless you’re willing to mortgage your home or spend your life savings. But a company that wants to set an example to others, or a lawyer who is willing to spend his own time suing you for personal reasons of his own, could force you to spend that much money — or risk losing the amount they’re demanding, if you fail to defend yourself and end up getting a default judgment against you.
Given this, it seems to me, the temptation to surrender to the legal threat, even an unfounded one, can often be pretty substantial. And it’s especially so if the demand is that you take down someone else’s speech — to which you might not have any emotional attachment — rather than your own. Or am I mistaken on this?
January 25, 2011, 2:27 pmCalderon says:
We can only assume that Leiter’s old post is an example of his “strange sense of humor” where he “think[s] [he's] humorous, but sometimes people don’t pick that up.” We should all get in on the jokes and have a good chuckle at the claim that posting a letter to a service provider is “unbelievabl[e]!” and “creepy, malicious behavior.” I mean, really, the fact that he describes the correspondence as “my private letter to the service provider” gives away the fact that he’s joking. Who would ever believe that sending a letter to a company, with no confidentiality agremeent in place, could be considered “private?”
January 25, 2011, 2:28 pmkatahdin says:
‘Creepy and malicious’ seems rather over the top, but if one wanted to avoid naming real people as a matter of etiquette, couldn’t the legal issues be explored with a redacted copy of the letter?
I think the last lawyer I hired billed something like $250 an hour. I am certainly happy whenever Professor Volokh gives me a (free!) education that lets me avoid that.
January 25, 2011, 2:30 pmBob Lipton says:
Without going into it in detail, I think a certain amount of background information, such as you’ve now given, might have been appropriate at the time. Does one have a right to say things on the Internet. Of course. Were the things said tortious or merely critical? One would have to take a look at them, and that was not offered in the original; instead, choice of language assumed a non-tortious interpretation.
Bob
January 25, 2011, 2:30 pmEugene Volokh says:
Bob Lipton: I did link to the blog; but beyond that, my thinking at the time was — and continues to be — that there was nothing tortious about the use of the name brianleiter.powerblogs.com. There might have been something tortious (say, libelous) in the blog itself; but that was not what Prof. Leiter complained about in the cease-and-desist letter.
Katahdin: I’m not sure why it’s proper to avoid naming the authors of cease-and-desist letters as a matter of etiquette, especially when the authors are relatively prominent figures, and when there’s plausible reason to think that they might be using unsound legal arguments to suppress (or at least make less visible) speech that criticizes them. Can you elaborate on that, please?
January 25, 2011, 2:39 pmCrunchy Frog says:
I can’t tell if this is parody or not.
January 25, 2011, 2:39 pmAri71 says:
Brian Leiter is not exactly one to talk about making private information public. (See the comments, in which he “outs” a conservative blogger).
January 25, 2011, 2:41 pmBob from Ohio says:
What reasonable person would call EV “creepy” or “malicious”?
EV is always extremely polite and reasonable, even when he front paged a recent comment of mine to criticize it.
From Wikipedia about Leiter:
“His sometimes combative blogging style was derided by freelance journalist Mark Oppenheimer in the Boston Globe as “verbal soccer hooliganism”.”
That describes Leiter pretty well, don’t you think?
January 25, 2011, 2:44 pmIlya Somin says:
It seems to me that if you threaten to use the power of the state to shut down someone’s speech, your effort to do so is necessarily a fit subject for public debate – even if the law is on your side. The use (or attempted use) of government power is a matter that we all have a stake in, not just the parties immediately involved.
January 25, 2011, 2:45 pmDebrah says:
…I want to deal with the broader issue of whether it’s “creepy, malicious behavior” to post such a demand letter…
~~~~~~~~~~
I find Leiter’s choice of words a bit odd and hyperbolic-to-the-max given that he seems to revel in the idea that he is a well-known entity, something to which he alluded in his letter by saying that there was a “misappropriation of my name in order to advertise and draw attention to his [Burgess-Jackson's] web site”.
If false information about Leiter were being published, it’s understandable he’d want to put a stop to it; however, this seems more like a cyber cat fight whose foundation rests on Leitner being a known entity.
On one hand, he says that Keith Burgess-Jackson — (whose hyphenated last name is an ancillary issue all its own…..who are these people! ? !) — used his name as a draw, which would indicate that Leiter believes himself to be a man of some known significance…….
……and on the other hand, he demands that he not be discussed and all about this incident be kept private.
I’ve never heard of either of these two men!
January 25, 2011, 2:45 pmanguslander says:
I wouldn’t have published the cease and desist letter if it’s point truly was to protect Leiter and his family from a series of personal attacks. In that case the dispute strikes me as private – one that’s none of our business because it doesn’t significantly affect our interests – and should thus be left alone.
That said (a clearer cut case, in my view) I also wouldn’t advertise a private email, taken out of context and intended for private consumption. Contra this: http://leiterlawschool.typepad.com/leiter/2010/05/the-racist-email-by-the-harvard-3l.html. (No doubt Leiter would say that because it’s already in the public square he did no harm treating it as an appropriate subject for dissection, although if it really was inappropriate to publish it in the first instance, I’d think it’s also inappropriate to further advertise it / add to the legitimacy of its initial leak.)
January 25, 2011, 2:48 pmdht says:
I would be interested to know how this letter got into Prof. Volokh’s possession in the first place. As a private citizen, regardless of how well known I may be in some circles, my expectation would be that private correspondence with anyone, corporation or individual, would remain private, or at worst, be used in a legitimate forum to counter my complaint. Instead, this letter seems to have appeared on a completely unrelated blog.
January 25, 2011, 2:54 pmMike says:
I would think that the booming business in $2000/copyright infringement settlement letters and ADA Infringement lawsuits would disagree with you. http://www.adaabuse.com/
January 25, 2011, 2:56 pmSteve says:
The “passive-aggressive” aspect is the act of publicizing nasty statements that someone else is trying to silence. To put it more directly: “Here are some really nasty things that someone is writing about Brian Leiter. I’m going to link them here at my widely-read blog, so that we can discuss the legalities of Leiter’s attempt to silence this person.”
In this particular case, I think the legal issues are interesting (and non-pretextual), and it’s not really possible to discuss the situation without providing a link to the site in controversy (in part because the inclusion of Leiter’s name in the URL is an important fact).
In other cases where cease and desist letters are published, both by Prof. Volokh and others, the legal issues are less interesting, and the purpose seems less to stimulate a legal discussion and more to illuminate a controversial attempt to shut down speech.
Owning a widely-read blog implies the power to override, as a de facto matter, many attempts at censorship or suppression of speech. “You’re trying to keep my friend from saying X on the Internet? Fine, now I’m going to give X 100 times more publicity by writing about your threat!” Sometimes the shaming is deserved, sometimes perhaps not. But the passive-aggressive element is that the blogger rarely comes out and says that his primary purpose is to punish the would-be censor by publicizing the disputed material. Instead, it’s like “oh, I’m just reporting on a dispute that I thought my readers might find interesting.”
January 25, 2011, 2:57 pmanguslander says:
IlyaSomin,
“The use (or attempted use) of government power is a matter that we all have a stake in.” Really? Preliminary correspondence in divorce proceedings? All landlord-tenant disputes? Seems to me there is a fuzzy line on one side of which we become busybodies – at least spiritually opposed to libertarianism – when we stick our noses in. You need a more refined principle.
January 25, 2011, 2:59 pmDavid M. Nieporent says:
Understandably? Unless there were death threats on the blog — which we can presume there weren’t, or BL would have taken slightly more aggressive legal action than a mere C&D letter — it’s hard to understand. I’ve been the victim of, for lack of a better term, cyber-stalking; it did not “upset” me, so much as it amused me. Given how hyper-aggressive Leiter himself is at verbally attacking those who dare dissent from his views, it would take extreme irony for him to get upset about someone returning the favor.
But even if he was upset about the blog, that hardly justifies getting upset about the publishing of the C&D. Except to the extent it exposed Leiter’s lawyerly shortcomings, I suppose.
January 25, 2011, 2:59 pmCalderon says:
I had never seen the link from Ari71 before; interesting, though sad, stuff. When I read his comment before clicking the link, I had thought he has referring to Leiter’s bizarre campaign to out Prof. Adler when Adler was posting here as “Juan Non-Volokh.” Just another example of Leiter’s sense of humor, I’m sure.
January 25, 2011, 3:02 pmBlue says:
Nicely put. My basic belief is that if someone like Leiter goes around throwing their legal weight against non-lawyers those who are the target of their actions have every right to seek out counsel about how to deal with the action as they see fit. This includes the posting of correspondence that was directed at them unilaterally. It is obscene to claim that the recipient of such an unsolicited letter has any obligation–legal or moral–at all. It is even more obscene to suggest that my actions impose any responsibilities at all upon third parties. I cannot unilaterally create a responsibility on another merely by the act of initiating conversation.
January 25, 2011, 3:03 pmKevin P. says:
Brian Leiter is a thug and a bully, demonstrated by his own actions and speech. His attack on Eugene Volokh is sadly typical.
January 25, 2011, 3:09 pmSteve says:
This is the Julian Assange view, and it’s really quite radical. It reflects a normative judgment that there really shouldn’t be such things as cease-and-desist letters and that speech shouldn’t be shut down via the power of the state. In furtherance of those ends, even in cases where “the law is on the side” of the speech-suppressor, we will frustrate the law by publicizing the offending speech under the guise of having a robust debate about whether it should have been suppressed. “Hey everybody, here’s a blog post A wrote about B – do you agree that A should have been forced to take it down?”
People have widely differing views concerning what should be secret, what should be private, etc. But the nature of privacy is that it may take only a single Julian Assange or Ilya Somin to, in effect, make the privacy decision for all of us.
January 25, 2011, 3:13 pmBruce Hayden says:
All that I can say about his charge that EV is passive aggressive, etc., is that this guy sure doesn’t follow this blog site very well, or, really know that many lawyers – despite apparently teaching something supposedly related to law (whatever Law and Philosophy means). What EV did this is the same thing that I have seen him do so many times here, which is to throw out his legal thoughts to us, and let us at them. I would like to think that this may hone his reasoning, but that really isn’t in need of improvement.
And, yes, you get into the problem of attacking people who buy ink by the barrel here. Attacking EV, like Leiter did here, on his own turf, just is not smart. EV will just, again, post Leiter’s statemets (apparently passive-aggressively), and let us make fun of the guy for being both thin skinned and clueless.
January 25, 2011, 3:14 pmSeaDrive says:
IANAL. As a practical matter, I think it would be better to sanitize the issue in hope of staying above fray, not that there is any guarantee of that. Prof. Leiter has let his emotions get the best of him, but the risk of that was perhaps foreseeable.
Of all the conspirators, EV is distinctly the most focused on legal issues.
January 25, 2011, 3:15 pmBruce Hayden says:
Interesting take there.
I do think that there is private information that should be kept secret or confidential. I would throw trade secrets in that category, as well as sufficiently personal information. I sure don’t want my SS# or my credit card information out on the Internet.
But what Leiter, and the others where this as come up, have been trying to extend the “private” realm to cover stuff that may be embarrassing or inconvenient to them, but not for any really better reason. And, I would suggest that Ilya, et al. are right to use their public platform and question that, and, yes, while doing so, making the information even more public.
January 25, 2011, 3:20 pmGrover Gardner says:
Would anyone here want his or her own private legal correspondence put up for discussion on the web? What if your wife were suing her OB-GYN, or your son was involved in legal trouble?
As for passive-aggressive… Only Eugene knows for sure. :-) Why was this private email forwarded to him to begin with? If he was only interested in the legal issues, why not redact the names?
Is it creepy? A friend of mine used to say that there are two kinds of people in the world–creeps and a**holes. The difference is that a**holes don’t know they’re a**holes, but creeps know they’re creeps. If you think about it for a minute, it explains an awful lot of human behavior. :-)
January 25, 2011, 3:20 pmTed says:
You’re destined to be disappointed. Oh, and with such expectations, I would recommend you have your secretary review your “private” emails and letters to non-clients.
January 25, 2011, 3:23 pmElemenope says:
…as one Harvard professor wrote me: “les mots justes”…
Epic.
You have to be really solidly up your own ass to use gratuitous loan-phrases from other languages when native idioms would serve fine. I mean, I get when there’s a certain je ne sais quoi about a concept you’re expounding, where a hapax legomenon or nonce word is the only thing that will serve to nail the aesthetic gestalten of the intended communication, but really, ceteris paribus, when your Weltanschauun requires gratuitous meertaligheid to express effectively, it’s time to look for a little personal parsimony.
Really, how hard would it have been for the Harvard professor to say: “How very apt.” That way he can be snooty and more of his audience will know it.
January 25, 2011, 3:24 pmKazinski says:
I remember reading Burgess-Jackson’s blog back when this came up. It seemed spot on. The feud seems like it still flares up intermittenly, this is from Burgess-Jacksons new blog in 2009:
There is lots more, it’s great stuff.
January 25, 2011, 3:29 pmQET says:
I’m still trying to understand the basis for Leiter’s and his Harvard’s sympathizer’s diagnosis of passive-aggressive. I understand he really really objected to what EV did. I just don’t see the soundness of that characterization. It worries me when a professor of philosophy at a leading university mistakes the application of such a concept.
January 25, 2011, 3:30 pmTed says:
How does this frustrate the law? What is the offending speech is, in fact, libelous? Or was, in fact, a real death threat? How does showing that you libeled someone — or intent to kill them — lead to a robust debate about whether it should be suppressed. I would think most people agree that libel and true deaths threats should be suppressed. You, no?
January 25, 2011, 3:31 pmUrso says:
My unsolicited advice is that you should ignore Leiter’s name-calling and don’t get drawn into some stupid flame war.
January 25, 2011, 3:31 pmrbj says:
Isn’t the recipient of a letter considered to be the owner of it and can do with it what he wants? Now with doctors & lawyers (among others) there are ethical constraints on them publishing, when there is a client situation, but I don’t think it goes back the other way. (Clients/patients being able to publish their correspondence.) And letters to third parties, how could those be considered to have any expectation of privacy.
January 25, 2011, 3:32 pmTed says:
Agreed. Perhaps he should be invited to post a response as a guest blogger here…that would be fun.
January 25, 2011, 3:35 pmEric T. says:
I think that, when a person is clearly disturbed, that the C&D letters shouldn’t be published. And that is due to the risk of givign attention to the disturbed person.
I have no problem publishing C&D letters in general, and agree that they often serve for intelligent discussion, but it should really be done in circumstances where the risk of harm (from emotionally unstable people getting more attention) is lower.
I think it’s a poor choice.
January 25, 2011, 3:35 pmBel says:
Wikileaks is not about expression but information. As Revel said freedom of speech must be guaranteed even for a mad man but information must be limited.
January 25, 2011, 3:44 pmOpinions are free.
Eric S. says:
“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”
That’s hysterical.
As to the original point, of course Leiter would offer a “different view” – he comes off as an enormous d-bag in light of L’affaire Powerblog
January 25, 2011, 3:45 pmdht says:
We have come a long way from Henry L. Stimson.
January 25, 2011, 3:46 pmGrover Gardner says:
An amendment to my previous post: Perhaps the C&D letter was published on the recipients blog, in which case Eugene merely copied it from that source. (I can’t tell because the link to said blog is dead.) In that case it would seem to be fair game for discussion, in the odd way that such things work on the internet…
January 25, 2011, 3:47 pmShelbyC says:
But sometimes he tells people politely that they’re wrong. That’s passive-agressive.
January 25, 2011, 3:48 pmDavid M. Nieporent says:
Yes, but while KBJ’s blog was somewhat… quixotic, often rude and occasionally crude, the notion that he was “disturbed” is just Leiter being Leiter.
January 25, 2011, 3:50 pmDebrah says:
Thank you for reminding me of who Leiter is.
It’s all coming back to me now.
The post of his that you highlight changes everything…..for it’s obvious that he’s exceedingly selective with what he characterizes as “private”.
Eugene! Use the brilliance that resides in the innermost regions of your cerebral nexus to demolish this girly-girl !
January 25, 2011, 3:54 pmBrian says:
Posting the letter and the link are separate issues. It seems to me that posting the letter was entirely justified.
Posting the new link to the website is arguably unjustified, depending on how close an issue (2) and (3) are, and Volokh’s confidence that he has not overlooked an important issue that another could discern much better by seeing the actual site. This last point is constrained by Leiter’s original complaint and a subjective idea of what the relevant scope of the issue is (i.e. how well pleaded the complaint would have to be if something relatively different were actually wrong with the site).
It seems that (3) was not at all close, and without seeing the site I can’t say about (2). That inclines me to say that posting the site was necessary for a full understanding of the situation.
Regardless, a full understanding of the situation was not necessary to “advance a discussion about the role of legal threats in constraining speech (rightly or wrongly) online,” as a conclusion could be that cases like this are contingent on the outcome of (2).
Ultimately I think that for someone as brilliant as Volokh, it was wrong to post the new link in case he had overlooked relevant information, since a) there was such a small chance of that, b) if someone actually came up with a specific idea of why linking provided important information Volokh could later edit his post to include the link, and c) posting the link had the certain downside of increasing the prominence of the malicious blog. For most people, it would have been much more justifiable to direct attention to the site.
January 25, 2011, 3:57 pmHowever, if I were Volokh I would apologize for posting the new link since it was irrelevant to the hypothetical discussion at hand regarding what sorts of cease-and-desist letters are valid.
wm13 says:
Two points:
First, Brian Leiter would be a thug and a bully, except that hard left law professors have no actual power (except over their unfortunate students). Leiter most reminds me of one of those hissing cockroaches in a jar, and when you poke him with a blade of grass through the holes, he jumps all around and makes the most amusing noises. Great fun.
The lawyers and others here who express the belief that their commercial and legal correspondence is “private” are idiots. If you want to keep something private, keep it inside your head. Do not write a letter, ever, that you would not be happy to see published on the front page of the New York Times.
January 25, 2011, 3:58 pmBlue says:
I disagree completely. Not to defend Wikileaks, but that website is publishing secret documents that have been generated with that expectation among a willing set of recipients. Leaking those documents is a breech of confidence. in contrast, the recipient of a C&D letter has not agreed in advance to any level of confidence at all.
January 25, 2011, 3:59 pmDissent says:
Eugene:
Having myself been the target of an obsessed person who set up a site about me (with my real name in the url until I contacted the service provider), I can empathize a bit with BL on this. I certainly wouldn’t have actually linked to the offending blog. I’m not sure I would have even mentioned the name of the blog or his name, as it’s possible to discuss the legal question without naming names as long as the content of his letter to the ISP is provided.
That said, I don’t think your behavior was malicious or creepy. I think the behavior of the provider who forwarded the letter to you is much more disturbing. As a matter of customer privacy, if my ISP got a complaint about me, I would hope that they wouldn’t be forwarding it to a non-involved third party.
Lest I seem hypocritical, I note that I have published cease-and-desist letters from lawyers on my blog with the lawyers’ names revealed. But in that case, I was the recipient of the C&D’s and not a third party, and my blog’s privacy policy warns people that I will not respect the privacy of nutty threats, etc.
January 25, 2011, 4:04 pmMB says:
If Leiter really thinks it was so creepy, I don’t see why he would alert his readers to it. Presumably what makes it “creepy” is that in Leiter’s view, this is a private matter that does not merit academic discussion. Calling further attention to it seems inconsistent with his premise that it does not merit discussion and is outside the scope of permissible blog fodder.
Of course, Leiter’s been blogging about this fellow’s anti-Leiter blog for some time, so the real problem seems to be that Leiter thinks he should have a monopoly on the topic. See http://leiterreports.typepad.com/blog/2005/10/keith_burgessja_1.html
January 25, 2011, 4:10 pmSteve says:
It frustrates the law when the law permits A to suppress B’s speech, but C, D, and E all republish B’s speech under the pretext of discussing whether it should have been suppressed. One wonders whether Prof. Somin thinks we should be permitted to have a robust debate about the contents of a sealed court file.
Well, that’s your standard for what ought to remain private. Others have a different standard. Some people (I am not one of them) believe that it is improper to publish a private letter even if you were the recipient. I suspect Assange would argue that letters between two government officials aren’t comparable to letters between private individuals and that in some sense they’re everybody’s business.
But Prof. Somin didn’t include any qualifier like the one you reference. He simply said that we should be entitled to have a robust debate any time A threatens to use the power of the state to shut down B’s speech. That holds true whether B is Keith Burgess-Jackson or Julian Assange.
January 25, 2011, 4:10 pmDebrah says:
A case can be made for this view; however, most likely by those already sympathetic to Leiter.
One has to admit to the human aspect of visceral insight beyond the grasp of our rational minds.
If I didn’t have confidence in Eugene’s legal/intellectual rigor and if I didn’t think he was a reasonable guy — although he can be a meanie when he wants! — and if we didn’t have the reminder of Leiter’s promiscuous violation of the so-called “privacy” of others (cited above), then I might buy into a “passive-aggressive” scenario.
But I do.
And we do.
And so, I don’t.
January 25, 2011, 4:12 pmCarl The EconGuy says:
Geez. I didn’t know Brian Leiter from a rock, and now that I’ve followed up on some of the links in this thread, I’m sorry I do. It’s what someone once called “dysfuntional knowledge.”
Seems to me Leiter should be hired to take over for Olbermann at MSNBC. What I want to know is if people like these two are typical of the unhinged left or if they are just the role models they all aspire to? Talk about the madness of the lefty crowd!
Anyway, thank you all for the Conspiracy.
January 25, 2011, 4:17 pmwm13 says:
BTW, there is a typical Leiter misstatement (ok, lie) which some people seem to be taking at face value. Keith Burgess-Jackson is a tenured professor at the University of Texas; I know of no evidence that he is “disturbed” or “vicious.” I suspect that anyone who read a few thousand randomly selected words by Leiter and Burgess-Jackson would not characterize Burgess-Jackson as the disturbed or vicious one.
January 25, 2011, 4:18 pmdht says:
Academic politics are vicious because the stakes are so low.
January 25, 2011, 4:26 pmliamascorcaigh says:
“as one Harvard professor wrote me: ‘les mots justes’”
Ah, the Sideshow Bob of the Ivy League.
January 25, 2011, 4:29 pmUrso says:
Dd you catch this gem from Leiter’s blog?
January 25, 2011, 4:31 pm“The scandal du jour for the Spring was the racist e-mail from a Harvard 3L, which brought forth the usual assortment of confused and know-nothing commentary from the right-wing end of the blogosphere. Plus ça change, plus c’est la même chose.” Not to mention that, in the same paragraph as the “mot juste” quote, Leiter uses “tour de force.” How worldly!
Debrah says:
Ha!
Perhaps that’s why he’s criticizing Eugene.
To get more attention.
I concur that Leiter is a Leftist piece of work.
January 25, 2011, 4:32 pmKazinski says:
I’m as rightwing as they come, but I think Leiter’s pathology is his own, not an endemic feature of the left. It may well be more prevalent there, but it is hardly a widespread feature. Thank God.
January 25, 2011, 4:39 pmMB says:
I agree that there are some situations where it would be preferable not to publicize a malicious website that has been targeted with a C&D letter, even where the C&D letter itself might make an interesting topic of academic inquiry. On the other hand, it may be difficult for the reader to evaluate the validity of a C&D letter without seeing the underlying blog itself. Where the lines should be drawn (ethically and legally) is a really interesting problem. But to my mind, what happened here isn’t even a close call. The problem with Leiter’s position is that Leiter himself already links to and discusses the offending blog. Once a prominent blogger expends thousands of words in multiple blog posts excoriating someone for their criticism of that blogger, he shouldn’t turn around and say that it’s creepy for another prominent blogger to repost the link because this is a private matter.
January 25, 2011, 4:41 pmBob from Ohio says:
wm13:
I just read a month or so of Keith Burgess-Jackson’s blog and Leiter’s blog.
Burgess-Jackson seemed perfectly normal–kinda boring but fairly typical conservative views.
Leiter, on the other hand, throws insults around like water. He likes “insane” to describe people he does not like. I have not read Leiter in several years, no reason to start up, its exactly as I remember.
I think “creepy” is a projection.
Good advice. Leiter carries grudges for years it seems.
January 25, 2011, 4:48 pmkatahdin says:
I was thinking of a situation where Mr. Smith has sent such a letter to Ms. Jones, and it is a genuinely ambiguous situation legally. One could discuss the legal issues by referring to Mr. S and (especially, perhaps, deferring to the privacy of the recipient) Ms. J.
It’s commendable to call out bullies, but if a case involves some close question of law, where such a letter might not be bullying, the legal issues can be discussed independently of the identities of the participants.
January 25, 2011, 4:48 pmDebrah says:
Honto ?
Es verdad ?
Really?
That surprises me, although I may have you confused with another commenter, because I seem to recall many of your responses have been rather….how do you say?….progressive.
I consider myself a centrist for the most part, btw.
January 25, 2011, 4:50 pmGrover Gardner says:
No, passive-aggressive is serving wine in little airline bottles (carefully hoarded for just such an occasion) when you don’t like the people your wife invited for dinner. I’ve always been in awe of my father-in-law for that trick.
January 25, 2011, 4:53 pmAaron says:
The problem with your SS# on the net is entirely practical. Companies treat knowledge of your SS# as an authorization to do things in your name. This is the problem. Knowledge of your SS# should no more be treated this way than knowledge of your middle name. Passwords and credit card numbers can at least be readily changed in case someone else learns them, and makes their normal use at least somewhat reasonable. This really doesn’t work in the case of social security numbers, and it is unreasonable that they are so used.
January 25, 2011, 4:54 pmanon says:
Considering your own ranking in the wwwsphere, you did (advertently or inadvertently) provide “brianleiter.powerblogs.com” with some very nice google fu.
I think you could have posted much teh same stuff but with a bit more care to the persons involved.
I think Taylor Swift has it right, though I will still not buy her albums.
I was reading an ER blog this morning, and the ER doc there posted about a very real case, but without any identifying information. Are you sure you could not have done the same?
January 25, 2011, 4:58 pmwordsmith says:
Leiter and Burgess-Jackson have each asserted that the other suffers from mental illness.
January 25, 2011, 5:04 pmDo these allegations defame the mentally ill?
Dilan Esper says:
I’m in favor of publishing C&D letters. But I think I have a somewhat different reason than some others.
Most C&D letters I see are egregious, whether or not they are justified given the underlying facts. What I mean by that is that the general approach of most lawyers is to try and make the recipient feel that he or she will basically go to the gas chamber if the material isn’t taken down or retracted or the activity isn’t discontinued. And that the recipient may still go to the gas chamber even if he or she promptly complies.
I know why this is done– both because it works and because lawyers are inveterate waiver-phobes, constantly worrying that any argument that isn’t asserted in every single context will be deemed waived. Nonetheless, this reflects terribly on our profession– it makes us look like bullies, and if the recipient takes the time to find out the actual content of the law, often dishonest bullies as well.
So I think the publication of C&D letters may lead to some moderation of their content. Lawyers who know that these letters will become potentially public documents will have an incentive to write letters that do the job (explaining their client’s legal position) without making them and their clients look like asses. It certainly can’t hurt.
January 25, 2011, 5:11 pmDebrah says:
I’m still having trouble with Keith Burgess-Jackson’s name.
I’m sure he’s a nice guy, but what’s up with the hyphen?
Did he take his spouse’s last name because she (and I’m assuming there’s a “she”) didn’t want to drop hers after the marriage?
I once knew a guy who had a last name that consisted of half of his own last name and half of his wife’s last name.
Odd, but I give him credit for not getting into hyphens.
January 25, 2011, 5:16 pmIspep Teid says:
That’s offensive to us girly men.
January 25, 2011, 5:18 pmElbabe says:
After some thought, I think Leiter’s main problem is that you’ve stepped into some kind of academic equivalent of a pissing contest. Leiter and this other blogger are having some kind of dispute (Who knows who’s actually correct.) and you have stepped right into the middle of it. As a question of taste, publishing the C&D letter is fine. As you mentioned, it is done all the time.
January 25, 2011, 5:19 pmDebrah says:
LIS!
Let me put a fine point on the subject by saying that “metrosexual” — what was once defined as a guy who knows how to dress and takes care of his body, etc. — is great.
Just don’t have the emotional/psychological sensibilities of a girl.
I think Leiter is coming dangerously close in this instance.
January 25, 2011, 5:32 pmSecurityGeek says:
This post encouraged me to visit ChillingEffects.org for the first time in a while, where I saw that Glenn Greenwald of all people had just filed a DMCA complaint against a blogspot blog. Interesting.
January 25, 2011, 5:33 pmDon Miller says:
When my sister got married, she and her husband each kept their own name
When they had their first child, I was struck by the number of people who assumed they would hyphenate the child’s last name.
January 25, 2011, 5:34 pmEric T. says:
David:
I was speaking (or at least attempting to) in general terms. I think I did a lousy job of communicating that. I didn’t go to the guy’s site and review his commentary, as that is someone else’s pissing match.
I’ve been cyber-stalked and know others who have also, and the only real point I was trying to make is that there is no clear yes/no answer on these things when deciding whether a threat should be published.
I once held back from publishing a threat I received because I thouht the lady ranting at me by email was, to put it politely, off her meds. (My crime was linking to her site.)
January 25, 2011, 5:37 pmTed says:
Doesn’t defamation have to be directed at a specific person?
January 25, 2011, 5:39 pmTed says:
I would ask why all last names are not hyphenated, perpetually. It would make tracing genealogy a lot easier. Seriously though, do you have a point or are you just being passive-sexist?
January 25, 2011, 5:42 pmDebrah says:
Well, spill it.
What did they end up doing with the child’s last name?
January 25, 2011, 5:44 pmDebrah says:
I’m being deliberately and unadulteratedly sexist.
While I adore sensitive men, I think we’ve packed the magnet with that schtick.
Women are just now beginning to admit it: it’s endlessly more compelling in all ways when a man kind of takes charge.
Hyphenating his name to appease the manic testosterone-inspired, yet fleeting, urges of his lover/wife just doesn’t do it.
January 25, 2011, 5:52 pmDon Miller says:
Dad’s name
January 25, 2011, 6:01 pmgreat unknown says:
there have been a few comments that wonder how EV got his hands on the letter. Lieter himself, in the quote above, explains
So here we have one party to the correspondence pretty much asking EV to publicize the issue.
January 25, 2011, 6:06 pmDebrah says:
Good!
If a woman wants to keep her last name after marriage, fine.
Unless the guy has a really great-sounding last name, I’d want to keep mine as well.
However, she shouldn’t expect her husband to alter his for the sake of some silly nod to “equality”.
While it goes without saying that men and women should be rewarded equally for the same professional performance, etc….. they will never be “equal”. They are different humanoids, even as we all flail about with this notion that it isn’t true.
January 25, 2011, 6:10 pmDG says:
I once received a CD letter based on a research note that I had not yet published. It was laughable. And, as a bonus, the lawyer who had been hired to send it was a “noted First Amendment expert” who wrapped himself in the constitution. The letter and accompanying emails were amongst the most shockingly offensive things I have ever seen emanate from a lawyer. I’ve kept everything and may post it as some point.
The thing that angered me was that a guy was threatening to sue me for writing a clearly labeled opinion that hadn’t even been published yet. And nothing in that opinion was untrue – every fact was independently verifiable. This held no water with the lawyer who clearly was willing to write anything to make money. It wouldn’t have offended me so much except the guy claims to be the head of an organization to defend the rights of writers.
Needless to say, I published and he did nothing. so much for the “Hollywood Power Lawyer”…
January 25, 2011, 6:17 pmlucia says:
Leiter’s post, quoted by EV explains how EV came to have a copy of the letter:
As a private citizen who is not a lawyer, I am amazed that a lawyer (e.g. Leiter), or anyone (e.g. dht) would consider a cease-and-desist letter a private communication that would not be forwarded to others.
If I wrote anyone cease and desist letter, demanding take down of a publicly readable web site or blog and intimating a threat to sue, I would anticipate the worried recipient might forward my letter to any number of people, including their personal attorney, private groups that exist to provide advice to bloggers and, most especially, legal bloggers who frequently blog on first amendment issues.
If I received a cease and desist letter, I would feel free to forward it to similar groups.
You are not mistaken on this. Moreover, if the words in question are those of a third party, bloggers or service providers are likely to be willing to take down content when the potential loss is quite small. When faced with a sufficiently aggressive person, few want to risk even as “paltry” a sum as $1000 and their own time and energy explaining the matter to an attorney who will be defending the matter in some state, somewhere. Yes.
Many people can afford to spend the $1000, but they might prefer to spend the money on a fancy evening gown or opera tickets rather than spend money for the fun of upholding the first amendment.
My sister and I have always agreed that passive-aggressive behavior is highly under rated.
January 25, 2011, 6:26 pmKirk Parker says:
Dilan,
Well, here’s hoping! Not meaning this personally at all, but don’t you think the problem in many, many cases isn’t the fact that the C&D letter makes the lawyers look like bullies, but rather that the impression given is accurate?
January 25, 2011, 6:28 pmKirk Parker says:
Grover Gardner,
But you can actually buy those things retail, so maybe the butts of his jab don’t realize they’re being jabbed at?
January 25, 2011, 6:29 pmlucia says:
Come on. Everyone knows correct rule is: Change names if that moves you forward in the alphabet. Keep name otherwise.
January 25, 2011, 6:34 pmClayton E. Cramer says:
You are wrong about this. Can many afford to spend thousands of dollars to hire an attorney? Sure, because most people have savings, once upon a time, equity in a home, or an attachable paycheck. It is cheaper to hire an attorney to deal with a ridiculous lawsuit.
At least a C&D letter is an improvement over going directly to filing a $75,000 complaint in federal court–over something that would, if litigated, perhaps generate a $200 judgment. But the cost of fighting such a suit is so high that few can afford to fight it. It is easier just to pay out thousands in legal fees and settlements, instead of tens of thousands to take it to trial.
January 25, 2011, 6:36 pmKirk Parker says:
Debrah,
So much for your centrism…
January 25, 2011, 6:40 pmDebrah says:
LOL!!!
January 25, 2011, 6:41 pmMike G says:
As a totally non-lawyer person using mere common sense:
1) Letters from people to other people should be private unless the people involved both think it should be public.
2) Letters from lawyers attempting to indicate the possibility of legal action are not letters from people to people, they’re legal documents. And legal documents are fair game in public.
3) Really, really hilariously bad letters of either type can be made public so the rest of us can have a laugh at their authors’ expense, but
January 25, 2011, 6:42 pma) burning some dweeb for merely being a dweeb in public is usually a punishment beyond what fits the crime
b) burning some dweeb lawyer in public for abusing the law is always fair and just.
JR says:
This is a side issue,but it appears Ari71 is mistaken, since the guy in question was quite openly gay according to this discussion (scroll into the comments).
January 25, 2011, 6:43 pmDebrah says:
Notice I said “for the most part”.
It often depends on the weather as well.
:>)
January 25, 2011, 6:44 pmKirk Parker says:
Debrah,
Oh, dear. How can I fix this for you? Let me try:
Yes, indeed, it’s a complete and utter shock to learn that someone like that might end up with the “emotional/psychological sensibilities of a girl”. (nttawwt!)
January 25, 2011, 6:50 pmBob Lipton says:
I ask you to consider the proposition that the linkage constitutes, at some level, an endorsement. Look at the blogroll at the right side of this page. Do they constitute a ‘fair and balanced’ — whatever that may mean — list of well-written blogs from all over the political spectrum, intended to let the discerning reader winnow the good from the bad on his own, to note the good points made by each side? I haven’t checked it in detail, but I strongly suspect not. I would imagine that it consists mostly of people whose political position is largely in agreement with yours.
Nor is the use of a takedown letter particularly unusual. If Professor Leitner was of the opinion that these letters were libelous, he had the choice of suing or attempting to cure. Surely a takedown letter is less extreme and, should it be done, less expensive for everyone.
I think the real issue is the use of Professor Leitner’s name in the title. It would make me feel odd to see my name as the title of something attacking me. although we may have little rights when it comes to our names, we all tend to feel a little proprietary about them
As for the rest of it, while once I get my way I tend to let sleeping dogs lie, Professor Leitner is certainly entitled to his opinion of you. While ‘passive aggressive’ may sting in a way that “Whiny smug, self-satisfied creep with a weird sense of humor” (which might be said of Professor Leitner) would not — probably because of its air of disinterested and intellectual analysis — they amount to the same thing. Somehow, when we think of things to say to hurt others, we think of what would hurt us.
Bob
January 25, 2011, 6:52 pmKenB says:
I don’t see this as a particularly close call. Nastygrams, as I refer to any sort of demand letter, should be fair game for public disclosure. If you are embarrassed that your particular nastygram has seen the light of day, you should not have sent it.
January 25, 2011, 6:54 pmhedberg says:
I occasionally read KB-J’s blog (which used to be called “Anal Philosopher” for purportedly non-sexual reasons) and occasionally Leiter’s. I also read a bit of KB-J’s “I hate Leiter” when it existed. Best I can tell, they’re both right.
As I recall, KB-J adopted the hyphenated name some years ago for personal reasons related to family relationships, not because of a marriage or marriage-type relationship. I’m sure he’d tell, if asked.
January 25, 2011, 6:57 pmMrmandias says:
“The scandal du jour for the Spring was the racist e-mail from a Harvard 3L, which brought forth the usual assortment of confused and know-nothing commentary from the right-wing end of the blogosphere. Plus ça change, plus c’est la même chose.” Not to mention that, in the same paragraph as the “mot juste” quote, Leiter uses “tour de force.””
Sounds like Wodehose pastiche.
January 25, 2011, 7:00 pmInstapundit » Blog Archive » EUGENE VOLOKH ON the ethics of publishing cease-and-desist letters. I think it’s fine. I’m not sur… says:
[...] VOLOKH ON the ethics of publishing cease-and-desist letters. I think it’s fine. I’m not surprised that people who are doing the bullying feel [...]
January 25, 2011, 7:01 pmM says:
In my opinion:
January 25, 2011, 7:01 pm1. Professor Volokh should have redacted the personal information in the original post.
2. Assuming Prof. Volokh didn’t redact that information, Prof. Leiter should have sent him a private e-mail asking him to do so.
3. Prof. Leiter shouldn’t have dug up that old post, as it seems like he was doing it only to take a swipe at Prof. Volokh.
4. Prof. Volokh shouldn’t have responded in kind by reposting the original post.
I’m a law student, and I have all the respect in the world for both Profs. Volokh and Leiter, but that none of those four things happened makes them both look petty and immature to me. I hope they get over their personal animosity.
Dissent says:
You raise some valid (and excellent) points. I do think, though, that we could actually have a “cleaner” discussion of the original question as to the legal claims without knowing the parties involved. The fact that BL himself links to the offending blog on his own site removes my concern about EV’s conduct in linking to it, and I probably should have looked at BL’s blog. In light of those facts, BL’s accusations about EV seem more like PKB.
January 25, 2011, 7:01 pmnsgbf23v54re6 says:
“I e-mailed the blog service provider that this was a tortious misappropriation of my identity ”
Rule #1 of e-mail: never send in an e-mail anything you don’t want published all over the interenet and archived for eternity.
Rule #2: There is no such thing as a private e-mail.
This story is not about publishing cease and desist letters, it is about newbies who don’t understand what the internet is.
January 25, 2011, 7:01 pmAnym_Avey says:
After considering this post for a while, in light of the specific accusations made against Volokh by Leiter and the responses generated (by Leiter in particular)…I’m just a bit dumbstruck. It is rather like witnessing an entire symphony’s worth of instruments gain sentience and begin following the music of their own accord, yet with no idea that they’re being played.
Well done, professor Volokh. If I ever decide to take up chess, remind me to keep my person a good two or three restraining orders’ worth of distance from you.
January 25, 2011, 7:06 pmMatt says:
I’ve not waded through all the 100+ comments here, so forgive me if others have made this point. But in this case the context it’s necessary to know something about Keith Burgess-Jackson, namely, that he’s crazy. He’s also morbidly obsessed with Leiter, though that’s hardly the only evidence of his craziness. The blog in question did not only use Leiter’s name in a way that designed to deceive, but then was full of stuff that went from, at best, odd, to usually paranoid and weird, to making fairly disgusting remarks about Leiter’s family- his wife and children. It was also totally unhinged. I find it quite hard to believe that anyone on this blog, if subjected to similar behavior, would not have responded in a similar way. If Burgess-Jackson were merely criticism Leiter, even very strongly, that would be fine. Even if he were saying “Leiter is a big jerk” or something, he’d be within his rights. But unless you think that using a deceptive domain name to get people to come to a place where what, if we don’t think the internet should have special rules (and why should it?) would clearly be liable, (as well as vulgar garbage about Leiter’s family) then this letter seems completely fine to me, and re-printing it seems mostly to serve to draw attention to the deranged and plausible libelous ravings of Burgess-Jackson.
January 25, 2011, 7:17 pmEugene Volokh says:
M: (1) Can you elaborate, please, on why it’s improper to quote the names of the people sending cease-and-desist letters?
My thinking is that it’s proper to link the authors to the letters, so that the authors can be properly faulted if the letters are too aggressive (or properly unfaulted if the letters are proper). When someone seeks to suppress — or even to make less visible — a publication, I would think that it’s proper to note this fact for the record, and let people pass judgment on it. And this is especially so when the author of the cease-and-desist is a relatively prominent commentator. Or am I mistaken on this?
(2) It also seems to me that when one person criticizes another for something the target of the criticism has written, it’s proper for the target of the criticism to quote the earlier writing in the course of responding, so that readers can evaluate the matter more easily. What am I missing here?
January 25, 2011, 7:22 pmGimlet says:
http://academicthug.powerblogs.com = “les mots justes”
January 25, 2011, 7:25 pmpmorem says:
Reading the comments here, and where Ari71 linked above, a question comes to mind as to where Leiter stands on the use of sock-puppets.
Perhaps EV knows the answer.
January 25, 2011, 7:25 pmJR says:
FWIW, I agree with M’s comments. But having now read through Leiter’s lenghty post about Burgess-Jackson, Dissent appears to be wrong, Leiter appears to have assiduously avoided linking to the “hate blog,” for good reason it seems
January 25, 2011, 7:27 pmOutlander says:
The question of whether it’s prudent to publish private information–whether leaked documents (ala Wikileaks), letters like C&D letters, or information one overhears–has been explored in depth for decades. I think the best answer lies in journalism.
As I understand it, when deciding whether to publish private information, the journalist essentially weighs the balance of harms–the harm to the public by the information being concealed vs. the harm to the parties to the private information. The big downside to this test is that the person weighing the harms may have a bias in favor of disclosure. With established journalists, you can rely on social norms to curb that bias–if the journalist releases too much, he and his publication are subject to criticism and may lose sources or advertisers. But social norms don’t serve as an effective deterrent to marginalized members of society..
…Which leads me to ask what I feel is the more interesting question, which is, when should one be legally prohibited from releasing private information? Unfortunately, that subject is well beyond the scope of a blog comment!
January 25, 2011, 7:29 pmEugene Volokh says:
Matt: Prof. Leiter’s post did suggest that Burgess-Jackson had made some bad statements related to Prof. Leiter’s wife and children. And before posting this post I quickly reviewed the Internet Archive copy of the Burgess-Jackson blog items present as of the time of the cease-and-desist letter, to see if I could find the charges (just in case they influenced my judgment about the issue). But I couldn’t overuncover anything that obviously fit the category of “fairly disgusting remarks about Leiter’s family.”
Still, I might well have missed something; could you let me know what it was, so I can better evaluate that assertion? (Naturally, if you’d prefer to do it by e-mail, so you don’t have to quote the comments on-blog, please feel free to do that.)
January 25, 2011, 7:38 pmXBradTC says:
Well, the good professor did not favor to himself when he sent the C&D letter over his title and position as a professor. One might reasonably assume he was writing not as a private citizen, but as a representative of a public entity. And no recipient of mail from a public entity has a duty to presume that information is private, to the best of my knowledge.
January 25, 2011, 7:42 pmEugene Volokh says:
Outlander: Could you elaborate, please, why you would consider cease and desist letters to be “private information” that one should generally be reluctant to publish (though I realize you’re not saying that one should never publish them)?
I can understand why one might be hesitant to publish letters that are part of a conversation that is seen as confidential by both parties, whether letters between lawyers and clients, letters between friends, or even letters between government officials who see their conversation as confidential. But why would a cease-and-desist letter sent to a stranger, with whom one doesn’t have any preexisting confidential relationship — asking or demanding that the stranger suppress or make less accessible a particular publication — be properly seen as “private information”?
January 25, 2011, 7:42 pmXBradTC says:
Will that email be considered private?
January 25, 2011, 7:43 pmSPQR says:
Eugene, I’ve tried hard but I’m afraid that I’m reduced to thinking that “creepy” is a synonym for “daring to criticize me”. Its a fundamentally frivolous claim by him against you. Certainly, Leiter is in need of basic education of the “Streisand Effect”.
January 25, 2011, 7:50 pmDilan Esper says:
Sometimes it is. Bear in mind, though, that part of my complaint is that even the non-frivolous ones often read like they are frivolous.
For instance, you might have a situation where someone has posted some copyrighted material on a website. And it really is a valid claim of infringement. But instead of just writing a letter that says, in substance “it has come to our attention that you have posted [X] on your website; that material infringes our client’s copyright for [Y] reasons, and our client demands that you remove the material at once”, Larry Litigator will write a letter that says that as a result of posting the material, his client has suffered millions of dollars of damages, and is also entitled to statutory damages of $150,000 per work infringed (which is the upper limit for statutory damages in cases of WILLFUL infringement only), as well as attorney’s fees, and Larry will further write that the material infringes his clients trademarks and trade dress (even though it doesn’t), which will result in an award of treble damages (again, available only if the infringement is willful), etc.
The point being that even the typical MERITORIOUS cease and desist letter is written in this bombastic and borderline dishonest fashion. It just makes the whole profession look bad.
January 25, 2011, 7:54 pmGrover Gardner says:
Grover Gardner,
But you can actually buy those things retail, so maybe the butts of his jab don’t realize they’re being jabbed at?
Well, no, but they weren’t the objects of the p/a behavior! *They* probably thought it was a cute way to serve wine. That’s the beauty of it. But his wife knew he maintained a pricey wine rack in the basement. Of course if she *said* anything then the guests would be embarrassed, so she had to keep her mouth shut. I mean, what could she say? “Couldn’t you serve the good wine?” “Don’t we have something better than this?” That wouldn’t do. She had to spend the rest of the evening worried that the guests thought she was the sort of low-class person who drank wine from airline bottles. It really ruined the evening for her.
She got back at him with the classic old gambit of “redecorating” the TV room and tossing out his favorite recliner, claiming it was infested with fleas.
January 25, 2011, 8:05 pmMatt says:
could you let me know what it was, so I can better evaluate that assertion?
I haven’t looked at Burgess-Jackson’s blog in a very long time. For a while it was mildly amusing, as it was so obviously nuts. But there were dozens of deranged posts a day, and I’ll be damned if I’m going to go swim in that gutter now. But given that you’re interested in doing so, you might want to try harder. You’re the one, after all, liking to this blog by an insane person.
Will that email be considered private?
Classic.
January 25, 2011, 8:06 pmEugene Volokh says:
XBradTC: Yes, I would happily keep such an e-mail private, if the sender so asked me (though since the point of the e-mail would be to alert me to some reasons that would assertedly support Prof. Leiter’s actions, I take it that the sender’s purpose would be that I say something about the subject matter).
January 25, 2011, 8:09 pmM says:
Professor Volokh,
Thanks for your response. “Petty” and “immature” were too strong of words for me to use, so I apologize for that. I still think, though, that the back-and-forth on this isn’t entirely “blog-worthy” (but maybe I’m wrong, and it is, at least to the extent that we can think and talk about the topic constructively). Instead, perhaps what I mean to say is that the personal animosity could have been avoided. I haven’t read too many of the other comments in this thread, but there do seem to be a few nasty ones about Prof. Leiter. Maybe that’s an unavoidable consequence of the internet forum, and I do not deny he probably brought a lot of it on himself (he tends to come off rather bitingly), but I can’t help but to think that you knew the reposting would get under his skin and would also make him look bad to your audience. That’s not to say he didn’t have it coming as he did dig up that long forgotten post to slight you, which I don’t defend at all.
This is a good point, and it certainly reflects your commitment to the marketplace of ideas (I’m thinking back to the short paper you wrote on Snyder v. Phelps), but I don’t think it works quite well on the facts here. Quite simply, it seems as though Prof. Leiter was being harassed. Of course, we can hypothesize a more extreme case – say, the information sought to be suppressed is extremely invasive and that there is no question whether it is tortious. I presume, then, that you wouldn’t link the author to the letter, or even link the letter at all? I further presume that the reason why you would not is that you would not want to perpetuate the tortious information. But if that’s the case, then I don’t see why we shouldn’t treat Prof. Leiter’s letter similarly.
I anticipate that you will respond by saying that it was not clear whether Prof. Leiter’s C&D letter was correct about whether the information was tortious. Assuming that is true, I am not certain sure why the “default action” is to go ahead and post the letter. You are rightfully concerned about how the use of C&D letters may chill speech, but I am doubtful that these concerns are warranted here. That is, I would agree with you where the information sought to be suppressed is of some (social) value, but here, there simply seems to be harassment. It seems to me, then, that the balance of the competing concerns, speech and privacy, weighs in favor for the latter.
Also, I’m skeptical about whether we should treat Prof. Leiter as something of a “public figure” as you seem to suggest. I don’t mean to draw analogues to free speech, and so my point is merely one of etiquette: I think the material found on Prof. Leiter’s blog and and any other materials he has made public to be entirely “fair game,” but nothing else. I’m not sure whether this assertion demands justification, but I’ll leave it at that for now.
I think you’re right here, so I retract point #4.
January 25, 2011, 8:12 pmMB says:
Whether he linked to it or simply quoted it at length doesn’t seem relevant to me. Posting extensive commentary about something on your blog and then being angry when someone else discusses the same topic because it’s “private” or because it “draws attention” to the offending blog is silly. Whether the principle supposedly at issue is privacy or simply “don’t feed trolls,” Leiter’s own blog already put this whole mess before a good chunk of the readership of the legal blogoshpere.
January 25, 2011, 8:15 pmFat Man says:
wm13 is not me, but he has said what I would have said.
The interesting question is which of the commenters above is one of Leiter’s sockpuppets.
January 25, 2011, 8:18 pmM says:
I should say: if Prof. Leiter, on his own blog, linked to the offending blog and discussed it at length prior to Prof. Volokh posting on it, then I think Prof. Volokh is correct, and that the C&D letter is “fair” game. In such a case, Prof. Leiter would have “opened the door” to the otherwise inadmissible information.
January 25, 2011, 8:29 pmTexasBob says:
Let me make sure that I understand this:
Prof Number 1 pens a complaint.
Prof Number 2 publishes said complaint.
Prof Number 1 pens another complaint.
Prof Number 2 publishes that complaint also.
Do I detect a pattern here?
January 25, 2011, 8:36 pmM says:
Just found this:
January 25, 2011, 8:41 pmhttp://leiterreports.typepad.com/blog/2005/10/keith_burgessja_1.html
I think Prof. Volokh is correct; I was wrong in criticizing him.
Spartan79 says:
Slightly OT, but illustrating a creative way of combating blustering lawyers and the clients they represent when sending CD letters. Years ago, a software publishing company used the name of a prominent astronomer (whose name will go unmentioned but whose ego was as big as the cosmos – no more hints) as the name of a new upgrade of their software product during it’s development stage. The naming was intended as a compliment. After said prominent astronomer unleashed his lawyers on the miscreant software publishing company, demanding that they C&D with the unauthorized use of his name, they quickly complied, renaming the developing product instead “BHA”. Within weeks it was widely know in the industry and among knowledgeable consumers that the acronym stood for “butt-head astronomer”.
January 25, 2011, 8:59 pmMatt says:
M- I don’ think that link is fully relevant here. In it, Leiter points to many examples of the ways that Burgess-Jackson is, frankly, crazy. (And not just about Leiter, either.) But, those were all to Burgess-Jackson’s odd and crazy original blog (it may still be going- I’m not interested), “anal philosopher”. That was a blog about Burgess-Jackson himself- his personal blog. He later started up his truly crazy blog that was devoted entirely to saying crazy to libelous things about Leiter, the one that’s the subject of the C&D letter here. I can’t say that I’ve read every bit of Leiter’s blog or that I recall every page, but I don’t recall seeing him ever link to Burgess-Jackson’s deranged hate blog, and with good reason. Since that was a separate blog, the link you give isn’t directly relevant to this issue, it seems to me.
January 25, 2011, 9:06 pmCanonymous says:
If your interest was purely academic, you didn’t need to identify Leiter in the post. I take it that that wasn’t your sole motivation, you wanted to do something in response to what you saw as a questionable attempt on Leiter’s part to have some online speech removed. On the one hand, it’s laudable that you’re trying to protect online speech. On the other, your protecting the speech of someone who (in my opinion) is clearly deranged (isn’t this post an indication?). You waded into an ongoing battle and probably should have picked your fights more carefully. I can’t confirm that Matt was right that Burgess-Jackson dragged Leiter’s family into this on one of his two blogs dedicated exclusively to Leiter. My recollection was that Matt is right, but that’s just my recollection. It wouldn’t have been out of character. Among other things, he went to the flickr page of someone who did guest posts on Leiter’s blog and then posted on his own blog his thoughts about how unattractive he thought the poster’s wife was. I think you could have shown a bit more discretion than picking this fight with Leiter. It’s clear that Burgess-Jackson had an unhealthy obsession with Leiter and even if Leiter’s legal judgment was mistaken (a point on which you seemed to concede there was some honest disagreement), I think it’s reasonable for someone in Leiter’s position to try to do something to deal with this nutjob. Maybe you disagree or you think there was a better remedy.
January 25, 2011, 9:23 pmW.C. Varones says:
I think you made Brian Leiter cry like a baby.
Does that mean you are out of your mind?
January 25, 2011, 9:25 pmKazinski says:
Yes. I remember that too. I think that is the source of some of the animus between Leiter and EV. And of course shows a serious lack of judgment from EV, allowing Adler to blog on a much higher profile blog than Leiter’s, while sheltering a an obvious conservative from the academy by allowing him to blog anonymously, depriving right (yes I mean left) thinking scholars from their justified revenge in denying him tenure for his apostasy.
January 25, 2011, 9:36 pmWTarkin says:
Am I the only one who thinks that, in view of his behavior, it is hilariously appropriate that Mr. Leiter holds the “Joseph D. Jamail Centennial Chair in Law” at UT?
January 25, 2011, 9:39 pmXiaoding says:
“It frustrates the law when the law permits A to suppress B’s speech, but C, D, and E all republish B’s speech under the pretext of discussing whether it should have been suppressed”
Uh, when did that happen? Only a link to the site was published. In addition, the speech was never suppressed, merely the URL was changed.
January 25, 2011, 9:40 pmMatt says:
You definitely could have presented the issue in such a way that doesn’t expose his name or the url of the actual “offending” website. That probably would have been the more polite thing to do if you genuinely have an interest in the particular legal question here. Protecting the names of clients and creating appropriate hypotheticals is something that lawyers do all the time (or so I’ve heard).
January 25, 2011, 9:46 pmStephen Lathrop says:
Several, including EV, have questioned my assertion about the speech freedom that comes from being judgment proof. I lived it at one time, as the publisher of a small weekly newspaper that took strong stands and did investigations. We were careful to get stuff right, and we never got sued, but we got threatened all the time. When another publisher I knew learned we didn’t even carry libel insurance, he was aghast.
But the newspaper was incorporated, and although it was growing rapidly (in time, it became the most successful weekly in Idaho), during the first few years it owned no property to speak of, rented office space and production equipment, and contracted printing. The seven staffers were all young, and dirt poor, but having a blast and sharing in the prospect of future gains.
Every extra dollar in income was already spoken for by the expenses incurred for growth. You always paid for paper before you got the money from advertisers. If anyone sued, that would have put our corporation out of business instantly. But whoever sued would lose whatever they spent. And we would have been back in business shortly, with a new corporation. We had very loyal readers and advertisers.
And like I said, we were careful. We almost always knew what we were talking about, and we always thought we did. We were never reckless or negligent. That was a real position of strength, and it worked time and again to face down hostile adversaries, including major corporations, who didn’t like what we published.
However, that was in the 70s. I guess the real question is how much have things changed since? Anyone who wants to tell me why what I just described couldn’t work now will add to my understanding. Maybe there are special game-changer legal fiddles that come courtesy of the internet? That wouldn’t surprise me. I’m a bit cynical about the internet as a journalistic medium.
January 25, 2011, 9:46 pmStephen Lathrop says:
As for cease-and-desist demands (see my foregoing at 9:46 for context), we got some of those. The response was always the same. Every complaint was published verbatim, together with the key previously published allegations that elicited the complaint, and any other information we had to show that it was nonsense. After experience, we got so we could somewhat predict where hostile threats might crop up, and sometimes withheld a bit of information for later publication. We would add that to the reply. In time the local legal community started advising bullying-minded plaintiffs that picking a fight might not work out.
January 25, 2011, 10:02 pmgreat unknown says:
question for the experts: are “Matt’s” comments regarding Burgess-Jackson libelous?
January 25, 2011, 10:08 pmathEIst says:
Dilan Esper
It just makes the whole profession look bad
HA HA HA HA HA HA HA HA HA HA HA
January 25, 2011, 10:13 pmStephen Lathrop says:
I should also mention that I do understand EV’s point about being in a financial zone where you do have something to lose, but not enough so that you can afford a legal defense. Basically, that’s the unfortunate position of most of the middle class, most of the time, and of course it makes many people timid. You can hardly blame them.
January 25, 2011, 10:14 pmElemenope says:
I have a hyphenated last name, you insensitive clod!
(No, but seriously. I do.)
January 25, 2011, 10:31 pmDebrah says:
This has turned into quite a drama.
“All Volokh’s Children”
January 25, 2011, 10:32 pmDan Lavatan says:
I can’t imagine why anyone would pay attention to a c&d letter that somehow made it through their spam filter. In fact, I wouldn’t consider anything legally binding that wasn’t an order backed by at least 5 out of 9 justices on the supreme court. Even those rulings don’t really apply to online stuff; it’s not like there are a bunch of lawyers in sealand that can sue you there.
January 25, 2011, 10:33 pmDan Lavatan says:
You don’t need to hire an attorney if you are representing yourself and the law is on your side. I know plenty of people who have won pro se cases against $1k/hr attorneys. They may have fools for clients, but since justice is blind, fools often win.
January 25, 2011, 10:37 pmleo marvin says:
It’s all a giant misunderstanding. Anyone familiar with Bryan Leiter’s blogging knows that “creepy, malicious behavior” is just his adorable way of saying “I respectfully disagree. Love you, EV! xoxoxo, Bryan.”
OK, kidding aside, I think there are equities on both sides of EV’s question, but on balance I’d have preferred he extended Leiter the (undeserved) courtesy of redacting to the extent necessary to avoid driving additional traffic to Burgess-Jackson’s site.
January 25, 2011, 11:36 pmAJK says:
But it’s not a hypothetical — it really happened! Making legal threats is a matter of public interest. Why should anyone bend over backwards to protect Brian Leiter from being embarrassed by what he has exposed to the public eye?
January 26, 2011, 12:28 amIlya Somin says:
Really? Preliminary correspondence in divorce proceedings? All landlord-tenant disputes? Seems to me there is a fuzzy line on one side of which we become busybodies – at least spiritually opposed to libertarianism – when we stick our noses in. You need a more refined principle.
No. I think my principle works fine for those situations too. If you ask the state to back you up in a divorce dispute or landlord tenant dispute, the fact that you did so or threatened to do so is a legitimate subject for public discussion. In most such cases, of course, there is little need for any actual discussion because the legal arguments involoved are completely unoriginal. In Leiter’s case that’s not true, since he was at least arguably pushing the limits of the law.
January 26, 2011, 12:44 amIlya Somin says:
This is the Julian Assange view, and it’s really quite radical. It reflects a normative judgment that there really shouldn’t be such things as cease-and-desist letters and that speech shouldn’t be shut down via the power of the state.
No, I merely said that in such cases it’s legitimate to make your effort or threat to use state power to shut down the speech public. I do believe that there are rare cases where the state is justified in suppressing speech. But that doesn’t mean its efforts to do so (or those of private parties who try to get the state to do it) should not be publicized.
January 26, 2011, 12:48 amPaul Barnes says:
I have corresponded with KJB over the past few years, and have been a regular reader of his blog for around 7 years. His name is hyphenated because he wanted to honour his mother’s maiden name so he legally changed his to include hers.
January 26, 2011, 1:13 amClayton E. Cramer says:
I was told by a number of attorneys that federal judges hold pro se defendants in contempt, and if you make any mistakes at all, they will not give you the benefit of the doubt. Gee, defend yourself against sharks who make extensive use of discovery motions to run up their bill, make one mistake, and the judge decides to get back at you for not hiring an attorney, and grants their summary judgment motion for $75,000 plus their fees. That makes loads of sense.
I am inclined to think that civil litigation needs to be turned entirely into Single Payer Legal Care. Every lawyer works for the government; no private attorneys allowed; every attorney gets randomly assigned to civil suits, and they get paid $35,000 a year to start. I think you would be amazed at how rapidly the ethics of the profession would improve.
January 26, 2011, 1:15 amhedberg says:
Interesting idea, but who would finance our political campaigns? And, how would we ever get another candidate of John Edwards’s stature?
January 26, 2011, 1:25 amMB says:
I hadn’t noticed that previously. But I got quite the giggle out of it once you pointed it out. (However, Leiter, along with Gergen, the prof he consulted about torts law, both have since decamped from Texas to Chicago.)
January 26, 2011, 2:08 amanguslander says:
I’d be wary of endorsing a moral principle licensing conduct (“public discussion”) that – e.g. in the divorce case – can devastate two people, merely on the basis that one of them made an original legal argument. Also, invoking our interest in monitoring the government to justify peering into every human interaction that has (interesting, of course!) legal dimensions seems perverse – an authorization (even if largely theoretic) of extensive encroachments on traditionally private spheres of life in the name of constraining the state. It’s a cure worse than the disease.
January 26, 2011, 2:24 amG Joubert says:
As a lawyer I’ve sent many C&D letters. While writing them I’ve always been cognizant of the possibility –indeed likelihood– that the letter would be read by numerous others besides the addressee, and maybe even get media attention. So, I always wrote carefully accordingly. I don’t know what the big deal is if you’re being ethical.
January 26, 2011, 2:42 amMB says:
Look, I don’t think it’s a good idea to be pro se in federal court. (The legal profession exists for a reason.) But if you mean “hold pro se defendants in contempt” as in contempt of court, it really doesn’t happen much. And in fact, federal courts are required to give pro se litigants the benefit of the doubt. The Supreme Court has ruled that pro se pleadings and motions must be broadly construed, or read more leniently than when written by a lawyer. Usually the problem for pro se parties at summary judgment is a failure to offer any evidence at all to support their claim. That’s not a small mistake in a federal case, and there’s no way for the judge to allow the case to continue if a pro se makes that mistake. And generally, winning at summary judgment doesn’t mean you win legal fees, which I think is what you are referring to.
January 26, 2011, 3:32 amHaro says:
Leiter apparently did this kind of thing even when he was in high school:
http://iraqwarwrong.blogspot.com/2005/05/old-chum-resurfaces.html
http://iraqwarwrong.blogspot.com/2005/06/original-leiter-reports.html
January 26, 2011, 4:39 amDoc Rampage says:
Yeah, he said things about Leiter such as that Leiter was morbidly obsessed with Leiter, that Leiter deceived people, that Leiter was weirdly paranoid, etc. But as I recall, the KBJ insulted Leiter, he quoted examples of Leiter’s own writing to do so –unlike you who simply throws out wild accusations. If KBJ really were so unhinged and really said evil things about another person’s family, you presumably could come up with some examples.
The purpose of KBJ’s blog was predicated on the fact that Leiter is an academic thug who uses personal attacks rather than debate –much like Leiter did to EV in the letter that EV quoted. KBJ was just letting Leiter know how it felt to be on the other side of that sort of attack. A wiser man might have learned something from the experience, but not, apparently, Leiter.
January 26, 2011, 4:50 amRicardo says:
If Brian Leiter was offended by this, all I can say is that it couldn’t have happened to a nicer and more level-headed guy.
January 26, 2011, 7:00 amDavid M. Nieporent says:
You were told incorrectly. Pro se defendants are given every benefit of the doubt; most federal judges bend over backwards to be extra solicitous of them and their “mistakes.”
I hate dealing with pro se adversaries, because they make cases take much longer because they don’t know what they’re doing, and because the judges will let them have multiple bites at the apple to get it right.
Discovery motions? In federal court? Federal judges hate discovery motions. A party, especially a pro se, has to go out of his way to refuse to comply with discovery obligations before a court will permit a motion.
If you make the “mistake” of failing to actually supply admissible evidence in response to a motion for summary judgment, then, yes, the judge will grant summary judgment.
Judges hate dealing with pro se parties not because judges hold them in contempt, but because pro se people are generally kooks who don’t know what they’re doing but think they know what they’re doing. Which wastes everyone’s time.
January 26, 2011, 7:26 amBlue says:
I really want to bring the conversation back to this point for a moment. I find it utterly strange that there is any expectation at all that an unsolicited missive of any type carries with it a legal or ethical requirement that its contents be kept private. My feeling is that the provision of a confidential correspondence relationship is one that must be agreed upon by both parties prior to binding either. It is arrogance of the highest degree for lawyers to send e-mails with threats into the ether and then complain when they are published (which is why I loathe the nonsense boilerplate about private communication at the bottom of many e-mails sent by them–it makes me want to broadcast whatever they have written as broadly as possible).
January 26, 2011, 8:25 amx says:
Blue, I rather agree.
It is pointless to try to cabin information. If you need something to be private, either don’t say it to someone you don’t trust, or get the person you’re going to tell to agree to keep it private.
January 26, 2011, 10:24 amDavid says:
Speaking of publishing cease-and-desist letters, how about this blast from the past?
Patent Humor
I go to the Blue Jeans Cable site every year or so just for the sheer enjoyment of rereading the takedown.
January 26, 2011, 10:42 amThe Ethics of Publishing Cease-and-Desist Letters « Interesting Tech says:
[...] Read more here Posted in Uncategorized , interesting, science, tech | No Comments » [...]
January 26, 2011, 10:49 amDebrah says:
I see.
Still rather odd.
January 26, 2011, 1:07 pmlucia says:
Leiter’s blog appears to not permit comments. Am I mistaken?
January 26, 2011, 1:31 pmDebrah says:
I’m sure he’s as selective with regard to free speech as he is regarding what he characterizes as “private” issues.
In any case, your avatar might also present a challenge for him.
In this dust-up, Eugene would be the cat and Leiter, the mouse.
January 26, 2011, 2:02 pmrichard40 says:
I definitely think it is OK to publish. I would go further than that. I think the law should be changed so sending a cease and desist letter, of any letter threatening legal action, that is not based on solid law, should itself be a tortous offense, entitling the recipient of the letter to have a legal claim. This would provide an excellent deterrent to the scum that send garbage letters solely to intimidate others, when they know they have no real case.
January 26, 2011, 3:33 pmBob Lipton says:
Wouldn’t that be subsumed under ‘loser pays’?
Bob
January 26, 2011, 3:37 pmNL says:
Definitely seems wrongheaded to think that you can threaten legal action and expect that threat to be kept in confidence. Legal action seeks to brandish the force of law, which stems from the implicit threat of state-sanctioned violence in the event the ruling of law isn’t respected. Such threats shouldn’t receive any sort of privacy presumption.
It’s hard not to interpret this as a matter of Leiter being embarrassed and blaming other people for drawing attention to the situation.
You could argue it’s crass and tabloid-like to publish something like this, but I think that’s easily balanced and probably outweighed by the intellectual benefits of discussing the letter and the legal issue.
It also seems rash to imply the blogger was insane. Based on the few examples cited he could just be a poor writer prone to blunt exaggerated statements, or he could have been writing ironically.
January 26, 2011, 4:24 pmlucia says:
Given the topic of the blog post EV linked, Leiter having no comments does seem to suggest an anti-free speech attitude on Leiter’s part.
January 26, 2011, 4:39 pmDebrah says:
Aha!
We are reminded afresh.
Such a “significant” topic for Leiter, yet no discussion platform exists for his commentariat…..as the one Eugene provides here.
Illustrative, that.
January 26, 2011, 5:49 pmElliot says:
Doesn’t such a letter presume subsequent court action if the recipient fails to comply? That would seem to aim it straight towards a public disclosure.
January 26, 2011, 6:51 pmleo marvin says:
I couldn’t be less of a fan of Bryan Leiter, but I disagree. I think bloggers inclined to suppress disagreement and criticism are more likely to screen comments and allow only the favorable ones. Bloggers who turn off comments entirely are more likely to have made a cost-benefit analysis that the time required to moderate is worth more to them than the opinions of their readers. I’m grateful that Eugene, Orin, et al, value our opinions enough to do the dirty work of thread moderation. However else I may feel about bloggers like Barnett, Balkin, and Leiter who decide otherwise, I wouldn’t accuse them of being anti-free speech.
January 26, 2011, 6:54 pmDesiderius says:
“Eugene, I’ve tried hard but I’m afraid that I’m reduced to thinking that “creepy” is a synonym for “daring to criticize me”. Its a fundamentally frivolous claim by him against you. Certainly, Leiter is in need of basic education of the “Streisand Effect”.”
“Creepy” is a word very laden with political meaning in the circles most steeped in PC-wave feminism as well as the Radical Chic left (sic) with which it is inbred. Snobs for the people.
I’m not sure what is gained by pussy-footing around Leiter’s nature. Doesn’t history teach that not standing up to such folks only gets us more of them? Or is this the most effective way of so standing?
January 26, 2011, 6:56 pmDesiderius says:
Debrah,
“Such a “significant” topic for Leiter, yet no discussion platform exists for his commentariat…..as the one Eugene provides here.
Illustrative, that.”
Not necessarily. Leiter’s amen chorus is easy enough to find. I like making room for voices like Barnett’s that would get shouted down in a comment section to first get a fair hearing. Mob doesn’t always know best.
January 26, 2011, 6:58 pmDebrah says:
Well, I hadn’t thought about Randy Barnett; however, must admit that it’s a bit strange to decide to contribute to a blog and yet harbor a distaste for the blog process…..
…..as in not entertaining commentary responses to your work.
But, oh well.
January 26, 2011, 8:29 pmlucia says:
Leo–
It’s not the lack of comments alone that give the impression of Leiter not really wanting to foster conversation. It’s there being no comments on his 2010 highlights post which pretty complains about other people writing things at their own blog where those people happen to discuss things Leiter appears to wish undiscussed.
I know nothing else about Leiter, but this gives a certain impression.
I will grant that not providing others a platform to comments is pretty far from actually preventing speech. We are, after all, all discussing Leiter here. But his complaining and calling EV names for daring to post speech Leiter would prefer not posted… just doesn’t make Leiter look like a person who is enthused about the idea that other people get to decide for themselves what to speak about.
January 26, 2011, 9:44 pmStephen says:
I definitely agree that if what Leiter describes happened is true he is absolutely an injured party. Whether that injury is being harassed by a nutter on the internet or if it is tortious misappropriation of his name is a different question.
I would have to hope that, as a lawyer himself, he would be able to recognise the difference between a sob story and a sound legal argument.
February 16, 2011, 7:02 pmStephen says:
If you don’t understand a word you can just look it up. We have the technology.
February 16, 2011, 7:11 pm