As I said recently, even though my identity is no longer a semi-secret, I don't promote my firm or my legal career on this blog. My firm has noting to do with Popehat's content and exercises no editorial control over it. I write here to promote issues that are important to me, for self-expression, because the community of readers and bloggers and commenters is a joy, and because I learn from that community every day. I certainly don't name clients and talk about their cases in an identifiable way here.
Today, with a client's permission, I'm making an exception. I'm doing so to tell you about the successful resolution of a First Amendment pro bono case. I'm doing so because the case is all about free speech, bogus legal threats, and SLAPP suits, some of Popehat's core topics. Sure, it's no Marc Stephens drama, but it's in our wheelhouse.
The pro bono client is Michael Hawkins of For the Sake of Science, and the adversary is Dr. Christopher Maloney, a licensed naturopath in Maine. You can read Michael Hawkins' account of the case here. This is my account.
1. The Setup: Past Blogging About Dr. Maloney
I wrote twice about Christopher Maloney in 2010, addressing his threats to science bloggers who criticized his advocacy of naturopathy and called him a "quack" based on that advocacy. Many other bloggers — including not only Mr. Hawkins, but PZ Myers and others — wrote about him, criticizing his legal threats and arguing the position that anyone who promotes naturopathy is, by definition, a quack. I find the the criticisms of naturopathy vastly more convincing than the defenses, but I haven't blogged about the science of it — you're looking at someone who took the "Physics for Poets" track at Stanford, writing essays about how the Pythagorean theorem made me feel.
So didn't think much about Dr. Maloney until this October, when Michael Hawkins wrote to me and told me that Dr. Maloney had sued him.
Mr. Hawkins is a thoughtful and hard-working young scientist with a bright future ahead of him. He works nights to put himself through college during the day, and writes an entertaining and frequently informative blog. Here's the best thing about having a small firm with your name on the door, instead of a being a cog at BigLaw, like I was for the first five years of my private sector career: when someone deserving like Michael Hawkins writes and asks for help, you don't have to go through a pro bono committee. Instead, I got up, talked to my awesome managing partner in the next office, and within a few minutes agreed to help Michael Hawkins pro bono. Excelsior.
2. The Lawsuit
Mr. Hawkins was under the not-uneasonable impression that Dr. Maloney had already sued him. That's because he received a package calculated to terrify him. I've uploaded that package here. It includes a threatening cover letter, a civil complaint, and a proposed settlement. It's a remarkable document, for reasons I'll discuss. Here are some of its most notable features:
1. Dr. Maloney is represented by attorney Maeghan Maloney. I understand that Ms. Maloney is Dr. Maloney's wife. She's also a member of the Maine State Legislature. (Incidentally, Maine state legislators take the following oath: "I ____ do swear, that I will faithfully discharge, to the best of my abilities, the duties incumbent on me as ____ according to the Constitution and laws of the State. So help me God." So, I guess she hasn't sworn to uphold the Constitution in general.)
2. On closer inspection, I realized that Dr. Maloney had not yet sued Mr. Hawkins — rather, Ms. Maloney was threatening to do so if Mr. Hawkins did not execute a settlement agreement within a short deadline. Mr. Hawkins' misapprehension was quite understandable for a non-lawyer, though: the package was calculated to terrify, and the attached summons implied that it had already been filed, even though the cover letter says it will be filed later.
3. Dr. and Ms. Maloney's central legal theory was expressed in the cover letter: "As should be clear to you, you can say anything you want against naturopathic doctors, but you cannot attack and bully a single person." This is not, to put it mildly, a correct statement of law. The First Amendment protects Mr. Hawkins' right to call naturopaths in general quacks, and to call Dr. Maloney in particular a quack for promoting naturopathy. Dr. and Ms. Maloney's theme seizes upon the increasingly fashionable — and utterly insipid and unprincipled — trend of invoking the word "bullying" as if it is some talisman that wards off the First Amendment and the rule of law. I've talked about parallel arguments by censors here and here.
4. Dr. and Ms. Maloney's complaint asserts claims for intentional infliction of emotional distress (or, as I like to call it, Butthurt In the First Degree), libel per se (meaning, roughly, libel so obvious it doesn't require special proof of actual damages), libel, and injunctive relief. The complaint centers around the things Mr. Hawkins has written about Dr. Maloney on the internet, as well as a pamphlet Mr. Hawkins handed out. Much of it reveals statements that are, on their face, protected by the First Amendment. Much of the rest of it relies on factual assertions that were easily disprovable by reference to posts still available on the internet.
5. Dr. and Ms. Maloney's demand for injunctive relief, to me, perfectly represents how unprincipled, contemptible, un-American, and freakishly censorious their entire threat scheme was. The complaint they served on Mr. Hawkins was incomplete — it cut off at the seventh page, so you can't tell what's in the prayer for relief — but here's what they demand in the text of the injunctive relief cause of action:
35. . . . . Injunctive action is necessary to prevent further expansion of Defendant Hawkins' comments. A temporary restraining order, a preliminary injunction or a permanent injunction is necessary, as Defendant has refused to limit or remove postings.
36. Such injunctive action would need to apply all [sic] blogging and social media, as Defendant Hawkins has threatened he will repost all his material. It would also need to apply to all allied bloggers reposting Defendant Hawkins' materials since several have explicitly offered to host him and maintain a copy of his blog. [Emphasis added]
That's right — a Maine state legislator just suggested that a Maine court should issue an injunction prohibiting unnamed, unserved people — potentially including you — from re-posting what Mr. Hawkins had to say about Dr. Maloney.
6. Dr. and Ms. Maloney included a proposed settlement in the package, and demanded that he execute it as a cost of not being sued. The settlement required Mr. Hawkins to remove all references to Dr. Maloney from his blogs and social media, never to post or incite any "defamation" about him again (meaning God knows what — under Maloney's unprincipled approach, this would effectively prevent Mr. Hawkins from ever writing about Dr. Maloney), and not to "intimidate" him.
7. Note that any Google search like "Christopher Maloney quack" tends to yield more results for prominent bloggers like PZ Myers than results from Mr. Hawkins. PZ Myers' rhetoric about Dr. Maloney has been far more forceful and vivid. But PZ Myers is a well-established large-scale national blogger with resources and a professor position and wide support. Mr. Hawkins is a student in Maine of modest means. He has the talent to be a nationally known blogger, but isn't yet. Censors are by their nature cowardly thugs: they go after the easy targets. They go after the people they think will roll over easily. That, ultimately, was the point that made me decide that I wanted to do whatever was necessary to help Mr. Hawkins, and do so pro bono. Game on.
3. Putting the Team Together
Having agreed to represent Mr. Hawkins pro bono, I decided to put a strong team together to deter Dr. and Ms. Maloney from filing this utterly frivolous suit. Here's the thing: litigating to vindicate important First Amendment issues is great, but ultimately litigation is terrifying, exhausting, and miserable for clients, even when they're not paying for it. My goal for Michael Hawkins the blogger was to preserve his First Amendment rights, but my goal for Michael Hawkins the young student was to keep him out of distracting litigation and get him back to studying stuff I'm too dumb to grasp.
I know how to write a "you'd be crazy to file this lawsuit" letter, and I can be legally and factually convincing in such a letter, and my qualifications won't make the other side snicker. But in this unique case, I was looking for a little something in addition, a je ne sais quoi. So I asked Marc Randazza to come on board. I've written admiringly about Randazza's work here a lot, and I've had the privilege of being co-counsel with him on matters, and I've come to the conclusion that he's one of the most effective First Amendment and IP litigators in the United States of America. Would I invite him to my church to talk about the First Amendment? No. He'd probably say "fuck" a lot, and though 90% of my parishioners would find him irresistible, 10% would be offended. But if you have a First Amendment or IP case, and you need an effective and aggressive litigator, and you want someone whose murum aries attigit approach will terrify the other side, he's the man you want on your side. It's not just about his litigation skills and command of First Amendment law. It's the fact that saying "my attorney/co-counsel is Marc Randazza" inspires abrupt incontinence like saying "bring out the gimp!"
Marc's a mensch, and he agreed immediately. Quoth Mark to my request: "SLAPP suits make angry. Quacks don't like to see me angry."
But I'm in Los Angeles, and Marc is in Vegas, and we needed boots on the ground in Maine — an effective and aggressive local counsel familiar with Maine practice and procedure. Mr. Hawkins found him — Jed Davis of Mitchell & Davis PA of Augusta, Maine. Jed was sensible, knowledgeable, supportive, and a joy to work with — he's the first guy I'm going to call if I have a client who needs a lawyer up there.
4. Waging War
Once we had the team together, I sent an email to Ms. Maloney telling her that we represented Mr. Hawkins. She called me almost immediately. Let me say this about Ms. Maloney: I find her SLAPP threat appalling and contemptible, and I do not countenance it for a second, but she was always courteous and professional in her communications with me. Moreover, she was doing this for someone she loves, so I tend to cut her a little slack.
We negotiated a schedule for me to send her a letter about the proposed complaint. I did so. It was about ten pages long. I wrote it, and Randazza threw some good bits in, so use your imagination. The thrust of it was this: (1) many of the factual assertions in the SLAPP suit are provably untrue, (2) Mr. Hawkins has an absolute First Amendment right to say that Dr. Maloney is a quack, unless he is implying false statements of fact, which he was not, (3) Maine's ludicrous decision to license naturopaths does not confer upon them some sort of protection from being called quacks for promoting naturopathy, (4) Maine's anti-SLAPP statute is quite useful, and we would be using it to dismiss the SLAPP suit and seek attorney fees, and (5) in addition, we were contemplating a malicious prosecution case after winning.
Several weeks of negotiation ensued. The Maloneys made settlement demands incorporating censorship, and we rejected them. One of the primary impediments to settlement was Dr. and Ms. Maloney's catastrophic failure to grasp elements of the relevant technology: they had reached the entirely irrational conclusion that Mr. Hawkins was somehow putting invisible tags about Dr. Maloney on every single thing he posted at his blog. They persisted in this irrational and unsupported belief despite claiming to have sought expert computer advice. I wouldn't let that expert fix your computer, guys. As near as I can tell, the tag cloud on Mr. Hawkins' blog was returning search results for searches about Dr. Maloney even though Mr. Hawkins had only written about him three times this year.
Ultimately we settled the case to our complete satisfaction. Dr. Maloney waived all his dubious claims about all of Mr. Hawkins' prior posts about him. Mr. Hawkins agreed only to tag posts "Christopher Maloney" when they discussed Christopher Maloney. In fact, that's what Mr. Hawkins was already doing; Dr. Maloney's irrational belief to the contrary was based on his failure to grasp how search results work. (His view might have something to do with how elderberries impact SEO; I'm not sure.) Mr. Hawkins also agreed to take the tag cloud off his blogs. Frankly tag clouds are irritating — I don't use one here for that reason — and Mr. Hawkins didn't care about it.
You might be asking why Mr. Hawkins offered the Maloneys anything at all. Why not go balls to the wall, say not a penny for tribute, make a stand? Ken, you might say — you talk about not backing down, how could you allow a client to offer anything?
Here's the thing: there's a difference between blogging about First Amendment cases and defending them. My client was not the First Amendment. My client was Michael Hawkins, a young man who works nights and studies days and doesn't have a lot of free time to spend on this nonsense. Was our defense absolutely correct? Yes. Should we have prevailed in our anti-SLAPP motion and malicious prosecution suit if the Maloneys had filed their complaint? Yes. Was Mr. Hawkins under any obligation to offer anything at all to the Maloneys? No. But success was not just about vindicating Mr. Hawkins' rights. It was about preserving his life. Even successful litigation — and even litigation you aren't paying for — is miserable and time-consuming. That's why SLAPP suits are so evil. Offering some face-saving fillip to the other side to ward off litigation might not be viscerally satisfying to First Amendment absolutists, but it's the right thing for the client. The settlement meant that Mr. Hawkins had nothing to worry about any more about his past posts and preserved his right to blog about whatever he likes in the future. We were satisfied.
5. A First Amendment Call To Arms
Across America, censorious SLAPP threats like the one Dr. and Ms. Maloney sent to Michael Hawkins succeed every day. They succeed because most defendants aren't as smart or determined or brave as people like Michael Hawkins or Rhys Morgan. (I am not throwing the first stone at anyone who yields to a SLAPP threat. I can't.) They succeed because most defendants don't understand their First Amendment rights. They succeed because most defendants don't know a First Amendment lawyer. They succeed because most defendants don't have the money to fund a lawsuit. They succeed because many jurisdictions don't have an effective anti-SLAPP statute. They succeed because many lawyers who care about the First Amendment aren't in the position to do pro bono work, or worry that they don't know the issues well enough or that it will take too much time. They succeed because the American legal system is, for the most part, set up to make it easy for plaintiffs to extort defendants without significant risk.
Do you care? If you do, good. Whether you are a lawyer or a blogger or concerned citizen, you can do your part to change all that.
1. Educate yourself about anti-SLAPP statutes and make your feelings known to your state and federal representatives about them. Does your state have a robust anti-SLAPP statute? It ought to. Join the debate about a federal anti-SLAPP statute. Educate your self about the debate over more general "loser pays" laws. Make decisions, and tell your representatives that these issues matter to you.
2. If you blog, write about First Amendment issues. Link to resources on First Amendment issues. Publicize SLAPP suits and help the Streisand Effect operate — if SLAPP threateners know that their threats will result in many orders of magnitude more bad publicity, they will be slower to threaten.
3. If you blog, and you know about someone who needs help in a SLAPP suit, use your soapbox to ask for help.
5. If you're a lawyer — especially a lawblogger — consider doing an occasional pro bono case. Many of them — like this — will resolve without litigation. Other lawbloggers will be happy to talk to you, make suggestions about how to handle the case, share work product, and generally make it an easier experience. The arrival of a qualified and aggressive attorney upon the scene can often scare SLAPP-threateners away.
Join the good fight.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016