Maybe we're too tough on whiny, litigious, censorious businesses. After all, we infantilize their customers and employees. We run the justice system so that they can be sued for any damned-fool thing, so that they lose (in terms of ruinous attorney fees) even when they "win" in court.
So maybe businesses aren't entirely wrong to figure this: if everyone else gets to act like children, why should we be expected to act like adults? Why shouldn't we get a piece of this vexatious, tantrum-throwing, consequence-free litigiousness?
Forever 21 is thoroughly butthurt over the existence of a blog devoted to humorous comment on its fashion choices, WTForever 21. WTForever 21 mercilessly skewers, and occasionally praises, the Forever 21 fashions that (God above help me) my daughters will be considering before I know it. Forever 21 self-identifies throughout as an independent site not affiliated with Forever 21, and nobody but a drooling idiot could confuse Forever 21 with its amusing (if somewhat earnest) critic site.
But this is America, and someone's butthurt, so someone must threaten to sue.
In this case the emissary of butthurt is an in-house counsel at Forever 21 named Jerry Noh, a 1997 law school grad who really ought to know better. Despite the fecklessly thuggish task facing him, let nobody say Jerry Noh didn't do his best. He gamely claims that WTForever 21 threatens confusion with Forever 21's mark, complains that the "WTF" part threatens to associate Forever 21 with an offensive phrase (ignoring, or perhaps not grasping, how this second argument undercuts the first), and blusters that Forever 21 will be suing for trademark and copyright infringement, dilution, unfair competition, and "other unlawful conduct."
Here's the thing: Noh — and Forever 21 — are full of shit. WTForever 21 is entirely non-commercial and clearly critical and (to some extent) satirical. Non-commercial critical and satirical sites do not infringe copyright or trademark and are protected by the First Amendment. The discussion of why is too long and dreary for this post, but the strong trend is for courts to protect gripesites under First Amendment, fair use, and non-commercial analysis, in large part due to the efforts of various organizations that have stepped up to support gripesite bloggers. As a result cooler heads generally counsel companies against picking fights with gripesites.
When companies have prevailed over critical sites, it's often been through rank thuggery — through wearing down critical sites with the stress, ruinous expense, and inconvenience of censorious litigation. That's Forever 21's credible threat here — not so much that they'll prevail, but that they'll make this blogger's life miserable. It's the threat of a loathsome bully. Good for the blogger, Rachel Kane, for standing up. When people like Rachel Kane stand up to bullies, it makes it a little bit easier for each and every one of us to stand up to bullies. And boo hiss to Jerry Noh and Forever 21 for their thuggery — thuggery which, in typical Streisand Effect fashion, has drawn several orders of magnitude more eyes to WTForever 21 than otherwise would have heard of it.
Mr. Noh, and Forever 21, are in California. I don't know where Ms. Kane is. If Forever 21 sues, I hope that they sue in a jurisdiction like California that has a strong anti-SLAPP statute. Such state statutes — and the proposed federal Citizens Participation Act — serve many purposes: (1) they provide a procedural vehicle for a swift and decisive attack on a censorious suit, (2) they award attorney fees to the prevailing defendant, which both encourages attorneys to take on cases for defendants who might otherwise not be able to afford it and inflicts consequences on censorious plaintiffs.
There are many lawbloggers out here who talk about free speech and decry thuggery like that displayed by Forever 21 and Jerry Noh. Let's put some skin in the game. So, WTForever21 and Rachel Kane, because you've stood up, let me make you this offer: if Forever 21 sues you, I'll do my best to find you a competent lawyer who will take the case in a manner you can afford — either a public interest group, a lawyer willing to take it on the expectation of recovering fees through a successful anti-SLAPP motions, or a lawyer willing to do it pro bono. Who knows? That lawyer might be me. I've had some success with anti-SLAPP motions. I call on my fellow lawbloggers — particularly ones who have expressed interest in First Amendment issues — to make the same pledge. Let's back the people who stand up against the thugs.
Last 5 posts by Ken White
- How The University of Chicago Could Have Done A Better Job Defending Free Speech - August 29th, 2016
- Gawker, Money, Speech, And Justice - August 18th, 2016
- Lawsplainer: No, Donald Trump's "Second Amendment" Comment Isn't Criminal - August 9th, 2016
- Why Openness About Mental Illness is Worth The Effort And Discomfort - August 9th, 2016
- A Rare Federal Indictment For Online Threats Against Game Industry - July 28th, 2016