Note: our entire series of posts about the Oatmeal v. Funnyjunk situation is now complied under the Oatmeal v. Funnyjunk tag.
The most astonishing thing about Charles Carreon — the attorney whose ill-considered threat is at the heart of the Oatmeal/FunnyJunk debacle I wrote about yesterday — is that the man markets himself as an internet lawyer.
Yet Charles Carreon seems mystified by the most basic elements of internet culture that even the rawest YouTube-watching tyro could explain. For instance, he seems taken aback by the notion that sending a smug lawsuit threat to a professionally snarky and frequently cheerfully vulgar online cartoonist with a rabid following could lead to the public relations catastrophe he now faces. Carreon sounds notes of wounded innocence in his interview with MSNBC:
"I really did not expect that he would marshal an army of people who would besiege my website and send me a string of obscene emails," he says.
"I'm completely unfamiliar really with this style of responding to a legal threat — I've never really seen it before," Carreon explains. "I don't like seeing anyone referring to my mother as a sexual deviant," he added, referencing the drawing Inman posted.
If this were an 80-year-old probate lawyer, I could write this off as culture shock. But in a self-described "internet lawyer," this failure to anticipate the natural and probable consequences of such a legal threat in such a subculture was nothing less than incompetence — a grave departure below the standard of care. Regrettably it's all too common. Lawyers send threats to silence critics without any apparent consciousness of the Streisand Effect — without understanding, as any minimally competent attorney in this arena would, that such threats will naturally lead to several orders of magnitude more people hearing about the complained-about content, and also to a much more negative view of the client. The questions are clear: have these lawyers heard of the Streisand Effect? Do they counsel their clients about the likely impact of their legal threats? If not, how do their clients react later when they find out the hard way?
But Charles Carreon's sin is not merely one of willful ignorance. He's also guilty of wretched hypocrisy.
"It's an education in the power of mob psychology and the Internet," Carreon told me.
Charles Carreon likes and supports one type of bullying — the type that makes money for him, the type he is licensed by the State Bar to use — but hates and condemns another kind, the kind that doesn't make him money, the kind that any sort of rube who never went to law school can employ.
See, a legal threat like the one Charles Carreon sent — "shut up, delete your criticism of my client, give me $20,000, or I'll file a federal lawsuit against you" — is unquestionably a form of bullying. It's a form that's endorsed by our broken legal system. Charles Carreon doesn't have to speak the subtext, any more than the local lout has to tell the corner bodega-owner that "protection money" means "pay of we'll trash your shop." The message is plain to anyone who is at all familiar with the system, whether by experience or by cultural messages. What Charles Carreon's letter conveyed was this: "It doesn't matter if you're in the right. It doesn't matter if I'm in the wrong. It doesn't matter that my client makes money off of traffic generated from its troglodytic users scraping content, and looks the other way with a smirk. It just doesn't matter. Right often doesn't prevail in our legal system. When it does, it is often ruinously expensive and unpleasant to secure. And on the way I will humiliate you, delve into private irrelevancies, harass your business associates and family, disrupt your sleep, stomp on your peace of mind, and consume huge precious swaths of your life. And, because the system is so bad at redressing frivolous lawsuits, I'll get away with it even if I lose — which I won't for years. Yield — stand and deliver — or suffer."
Our system privileges Charles Carreon to issue that threat, rather than jailing or flogging him for it. And so Carreon supports bullying like that. He's got a license to do it. He knows that his licensed threats — coming, as they do, on the [slightly odd] letterhead of a lawyer — inspire far more fear and stress than the complaints of a mere citizen, and by God he plays it to the hilt.
By contrast, Charles Carreon doesn't like shows of force that you or I can muster. "I'm completely unfamiliar really with this style of responding to a legal threat," he sniffs. There's a whiff of Paul Christoforo of Ocean Marketing in there — the sentiment "how was I to know that I was picking on someone stronger than I am? Is that fair?" But what he means is "if the people I threaten don't have to dig into their pockets to go hire a lawyer, and spend unpleasant hours with that lawyer, and lay awake at night worrying, and rely on a lawyer who is part of my privileged culture, but can stand up for themselves . . . how can I intimidate them so easily?" Perhaps some rude Oatmeal followers did actually send true threats or abuse to Charles Carreon's office — which I condemn. That's morally wrong and not helpful to the cause of free speech; it's harmful. But I fail to see why Charles Carreon sending that threat letter is more legitimate, admirable, or proper than ten thousand Oatmeal fans sending back the message that Charles Carreon is a petulant, amoral, censorious douchebag. It doesn't take lawyers, it doesn't take law school, it doesn't take any special privilege conferred by the state — it only takes a robust right of free expression — sending it back by blogging it, tweeting it, posting it on Facebook, and posting it in comments on forums. Charles Carreon has power derived from an inadequate legal system and letters of marque from the State Bar; The Oatmeal has the power of goodwill and community respect earned by talent. There's no reason to exalt Carreon's power and condemn The Oatmeal's.
Not everyone agrees, and Charles Carreon's whine of "mob psychology" is a cri de coeur to the contrarians: the people who think the Streisand Effect is too mean, who sympathize with Joseph Rakofsky over the people he sued for criticizing him, the people who sympathize with Crystal Cox even when she attacks the children of her opponents. Let's not let these people — who would like us meekly to pick up our phones and call our lawyers and start dishing out money and submit to the law's delay — detain us. (Professional contrarians would probably find a way to criticize The Oatmeal for calling out Charles Carreon, whilst simultaneously excusing FunnyJunk for sending its flying monkeys to abuse The Oatmeal when its proprietor complained last year.)
I'm not saying the law has no value. It does. The rule of law is important — especially in resisting the powerful. And getting legal advice is a good thing. Those are reasons that I encourage lawyers to offer pro bono help to bloggers hit with bogus legal threats. But the internet can help shift the balance of power away from professional bullies like Charles Carreon to the people they bully. Let it be so. Don't threaten violence, and expel and condemn those who do. Don't engage in actual harassment — like abusive telephone calls — or endorse those who do. Do get legal advice when you can. But name and shame. Call out censorious thuggery. Stand up against FunnyJunk and Charles Carreon and their ilk by writing about them and spreading the word about them. And if they can dish it out but can't take it? Tough shit.
Edit to add: from commenter desconhecido, a hilarious and ironic blast from Carreon's past: "Please don’t take me for a copyright hawk, but this seems like a ruling that benefits a company that has made a habit of turning other people’s work into their payday, and is being encouraged to keep on doing it."
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