Pundit Fights Make Bad Law
I've represented some difficult types — lawyers, doctors, internet phenoms, securities gurus, etc. — but I've never represented a professional pundit. That might be lack of contacts. It might be luck. Or it might be that, as a lawyer, I'm not willing to cave in to the client's demands, no matter how inane. That seems to disqualify me to represent modern pundits. As far as I can tell, when they go shopping for lawyers, they are looking for someone with no client control whatsoever — or, at least, someone willing to subordinate good lawyering to feckless theatricality.
Bill O'Reilly successfully cowed Fox's lawyers into an embarrassing doomed crusade to stop Al Franken's otherwise forgettable book, resulting in a judicial smackdown that was, given the circumstances, surprisingly mild. Michael Savage tried to work out his issues in a bizarre rant in lawsuit form; he and his tractable lawyer got their asses handed to them. Glenn Beck tried to sue a satirist and got thoroughly bitch-slapped.
But this phenomenon does not appear only when pundits are on the offense. Lawyers defending pundits also show a depressing and unprofessional willingness to indulge them.
Geller, who writes and talks an awful lot about how Islam will be the death of all of us any day now, was naturally drawn to the noisy and annoying tumult over Fathima Rifqa Bary. In brief, one contingent claimed that the young Bary was justifiably afraid that her Muslim parents would murder her for converting to Christianity and that she required the protection of the courts; the other side claimed that the fears were invented as part of an attempt to fan the flames of anti-Islamic sentiment. The legal portion of the dispute became moot when she turned 18. Determining what her teenaged estrangement was about, and what caused it, and what her relationship with her parents is now (or should be) is an exercise in sifting through conflicting and shouty claims of advocates.
Geller, not surprisingly, saw Bary as an icon of how Islam Will Destroy Us All, and wrote a number of Geller-style excitable things, including unflattering things about Omar Tarazi, who acted as the attorney for Bary's parents Mohamed Bary and Aysha Risana Bary in proceedings in their home state of Ohio. Tarazi didn't like that. He sued Geller for defamation in federal court in Ohio.
Tarazi's suit is not a model of good pleading. In his meandering narrative amended complaint, he asserts that Geller falsely stated that he was hired by CAIR, that CAIR is a criminal organization, and that he perjured himself in court documents about his connections to CAIR. Yet he intersperses those claims with complaints about Geller's social and political advocacy and statements of opinion about the case in general, even though that advocacy is very clearly protected by the First Amendment.
Tarazi's suit is very defensible by Geller. Most of the advocacy he complains about is inarguably protected. His complaint that Geller falsely stated that he was paid by CAIR conflicts, thematically, with his complaint that Geller wrongly called CAIR a criminal organization. After all, if (as he suggests) CAIR is a perfectly benign organization, how can it be defamatory to suggest that he was paid by it? Finally, what appears at first glance to be the most serious allegation — that Geller falsely accused Tarazi of perjuring himself about whether he was paid by CAIR — loses most of its steam when you see that Tarazi is accusing Geller of saying that others are reporting that Tarazi perjured himself. Even if that's read as a false assertion of fact by Geller — which is far from certain — Geller can defend it if she can establish a basis for believing that he was, in fact, paid by CAIR. Moreover, if she can establish that he was a public figure, generally or for a limited purpose, she can prevail by showing a lack of malice. The game-plan for defending a case like this is clear, to any reasonable lawyer.
But the lawyers in this case are defending Pamela Geller. There are no clear game-plans. There is only noisy dogma.
Geller's lawyers filed a motion to dismiss. This, by itself, was perfectly sensible. In federal court, as in the vast majority of state courts (where they are often called "demurrers"), a motion to dismiss is the right way to test, early in the case, whether the factual allegations in the complaint are sufficient on their face, even if taken as true, to state a legally valid claim. As any first-semester law student knows, the judge will the facts in the four corners of the complaint along with any judicially noticeable facts (like the fact that December 3, 2010 was a Friday, or the existence of a court pleading), and determine whether, if they are true, they show that the plaintiff has a legal claim. Good lawyers don't pack their motions to dismiss with arguments about facts outside the four corners of the complaint, because they are irrelevant, and almost always serve to antagonize the judge, who doesn't want to deal with that shit.
Geller's lawyers took a different path — the path of using the motion to dismiss as a vehicle for one of Geller's rants about Tarazi, Bary, and Islam. Their motion argues extensively about evidence outside the four corners of Tarazi's complaint and attaches extensive evidence to contest it, including a chatty and self-promoting declaration from Geller. It reads like a press release or a blog post. Geller justifies this heaping helping of extrinsic facts with very weak tea — she argues that she's challenging the court's subject matter jurisdiction under F.R.C.P. 12(b)(1) on the grounds that Tarazi's claims are so bogus that he can't make the $75,000 cutoff for federal diversity jurisdiction. If that sounds like a highly questionable excuse, it's because it is — though courts can consider some extrinsic evidence to consider whether they have jurisdiction, they can't use such a motion as an occasion to resolve the core dispute of the case: “If satisfaction of an essential element of a claim for relief is at issue . . . the jury is the proper trier of contested facts.” (Arbaugh v. Y & H Corp., 546 US 500 (2006).) The judge has already rather dryly remarked that he will not consider Geller's declaration, or the extrinsic evidence, except as "necessary" to resolve jurisdiction, which is very likely a tell.
This will probably sound like dreary law wonkery to our non-lawyer readers. But using a motion to dismiss to embark on such a rant about the true facts of the case is generally a signifier of hackery or craziness, and rubs judges the wrong way. It's the legal equivalent of getting on an elevator and, when a stranger politely and indifferently says "hi, how are you", responding "WELL, I HAVE SOME UNPLEASANT DISCHARGE FROM MY GENITALS THAT I HOPE TO HAVE CLEARED UP TODAY, THANK YOU FOR ASKING!!!" This gives judges migraines.
Perhaps Geller views the motion as an opportunity to "have her day in court" — to achieve attention to her viewpoints that she is not getting through her highly traveled web site or many media appearances. That would be odd thinking. Nobody but lawyers and a very few interested people actually read legal documents, as opposed to news (or blog) reports of legal documents. It's a poor forum not well calculated to draw much attention, like an advertisement in Newsweek. Her lawyers should know better, or should strive to have better control over her. The promotion of punditry makes bad lawyering.
[By the way, I note that all the criticized litigants in this post are conservative pundits. Though I can't think of any liberal examples off of the top of my head, I am deeply skeptical that liberal pundits are any better about this. Perhaps someone can suggest an example.]
Last 5 posts by Ken White
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