I say it often: vagueness in legal threats is the hallmark of meritless thuggery.
Today, let's look at a case study.
Retraction Watch Reports on Dr. Bharat Aggarwal
The blog Retraction Watch tracks, and probes, retractions in scientific journals. They say they do so because retractions are a "window into the scientific process," because doing so helps create a repository of retractions and publicize them, because retractions can be the lead-in for a great story about misconduct, and because tracking retractions can help keep scientific journals honest.
Since last January, Retraction Watch has been covering a story regarding a researcher named Dr. Bharat Aggarwal at MD Anderson Cancer Center. For instance, Retraction Watch has reported that people on the internet have accused Dr. Aggarwal of manipulating images in published studies, that MD Anderson is investigating the allegations, and that Dr. Aggarwal has acknowledged the existence of the investigation. Retraction Watch reported when Dr. Aggarwal or editors withdrew papers from publications, and when another journal "corrected" one of his publications.
Dr. Aggarwal Threatens Retraction Watch — Badly.
In March, Dr. Aggarwal — through the Houston firm Paranjpe & Mahadass LLP — threatened to sue Retraction Watch and demanded that Retraction Watch delete all of its posts about Dr. Aggarwal. The letter is here. It is an unusually foolish entry into the genre of ill-considered defamation threats.
Let's take a look:
March 26, 2013
RE: Dr. Bharat Aggarwal! Retraction Watch
First and foremost, this letter is a good faith attempt to resolve the matter described below without resorting to litigation. Our office has been retained by Dr. Bharat Aggarwal and it has come to our attention that you have an ownership interest in the website www.retractionwatch.wordpress.com. commonly known as Retraction Watch, which has several blogs relating to our client's papers and employment with MD Anderson. After careful review of the articles and blogs, we have found that a vast majority of the statements posted on Retraction Watch are untrue and defamatory. Furthermore, Dr. Aggarwal is not a public figure and is entitled to his privacy. However, due to the recent blogs that have been posted on Retraction Watch, Dr. Aggarwal has been brought into the public eye in a negative manner.
We hereby demand that all articles and blogs relating to Dr. Aggarwal be removed from Retraction Watch and all other related web sites that you control, or have an ownership interest in, within 20 days of the receipt of this letter. If the demands listed above are not met, Dr. Aggarwal has instructed our firm to file a lawsuit against you and all other owners of the website. Please feel free to write our office with any questions or if you would prefer that we direct this matter to your attorney.
Let's take this bit by bit.
Our office has been retained by Dr. Bharat Aggarwal and it has come to our attention that you have an ownership interest in the website www.retractionwatch.wordpress.com. commonly known as Retraction Watch, which has several blogs relating to our client's papers and employment with MD Anderson.
Sensible and careful lawyers writing demand letters about web sites make a reasonable effort to use accurate language. Retraction Watch has multiple blog posts about Dr. Aggarwal. Retraction Watch is a blog; it does not have "several blogs" about Dr. Aggarwal. If you are an attorney, and you are not familiar with common terminology used to describe the subject of your threats, consult someone who is familiar, or you will make yourself look foolish and diminish your credibility immediately. This attorney has signaled from the opening of his letter that he is either sloppy or does not understand what he is talking about. That is not a strong bargaining position.
After careful review of the articles and blogs, we have found that a vast majority of the statements posted on Retraction Watch are untrue and defamatory.
This sentence was a very stupid thing to write.
If Mr. Mahadass means to assert that the "vast majority" of things Retraction Watch has written are "untrue and defamatory," he can't be taken seriously. The most cursory review of Retraction Watch's posts about Dr. Aggarwal show that Retraction Watch has reported an investigation the existence of which Dr. Aggarwal has conceded, the withdrawal or revision of Dr. Aggarwal's articles by journals, and the existence of accusations against Dr. Aggarwal. Those facts have been covered by the Houston Chronicle, and are supported by, for instance, quotes from Dr. Aggarwal and links to the journals taking action. Mr. Mahadass doesn't explain how any of those things are untrue. He can't. He doesn't specify a single false statement of fact in Retraction Watch's coverage. Remember: vagueness in a legal threat is a tell of meritless thuggery.
Perhaps Mr. Mahadass means to suggest that the "vast majority" of statements in the comments at Retraction Watch are untrue and defamatory. If so, he is either incompetent or deceitful. Retraction Watch is not liable for statements by commenters under Section 230 of the Communications Decency Act. It is known. If Mr. Mahadass did not know this, he lacks the competence to be sending demand letters about online content. If Mr. Mahadas did know this, but sent a letter implying that Retraction Watch is liable for what its commenters say, he is deceitful — and deceitful in a very clumsy way.
Perhaps Mr. Mahadass means to suggest that the "vast majority" of statements on Retraction Watch are false and defamatory because Retraction Watch occasionally linked other sites that questioned Dr. Aggarwal, like the now-defunct Abnormal Science or the site Science Fraud. Leave aside the fact that those links are asides forming a miniscule percentage of Retraction Watch's coverage, making the "vast majority" bluster look very foolish. Mr. Mahadass is, once again, being either incompetent or deceitful. If he thinks that linking to another site necessarily constitutes republication of that site's content, he's incompetent, because that's not the law. If he knew that, but sought to suggest otherwise to Retraction Watch, he's being deceitful.
Furthermore, Dr. Aggarwal is not a public figure and is entitled to his privacy. However, due to the recent blogs that have been posted on Retraction Watch, Dr. Aggarwal has been brought into the public eye in a negative manner.
This, once again, is a stupid thing to write. Whether Dr. Aggarwal is a "public figure" might be debatable — though it's difficult to argue he isn't after the Houston Chronicle has reported on this controversy. But even if he is a private figure for purposes of defamation law, Retraction Watch can still freely print true statements about him. Moreover, he has no entitlement to privacy that would prevent anyone from writing about an investigation into the validity of his scientific publications. He has no right not to be "brought into the public eye in a negative manner" by accurate reporting on the existence of investigations. The validity and reliability of cancer research published in scientific journals may be of very little interest to most citizens, but it is quintessentially a matter of public interest for purposes of the First Amendment.
We hereby demand that all articles and blogs relating to Dr. Aggarwal be removed from Retraction Watch and all other related web sites that you control, or have an ownership interest in, within 20 days of the receipt of this letter.
Extravagant demands with no basis in law are also reliable tells of meritless thuggery. Note that Mr. Mahadass does not merely demand that Retraction Watch correct specified incorrect statements in its coverage of Dr. Aggarwal. Rather he demands that Retraction Watch not talk about Dr. Aggarwal at all and delete all mention of him, including parts that quote his own words. Dr. Aggarwal is not entitled to such relief by any stretch of the law or his imagination.
If the demands listed above are not met, Dr. Aggarwal has instructed our firm to file a lawsuit against you and all other owners of the website.
Why can Mr. Mahadass threaten suit, if his demands have no basis in law? He can do so because the system is flawed. He can do so because he knows that many bloggers don't make money from their hobby and can't afford expensive lawyers. He can do so because he knows many people will yield to an unjustified demand because of the stress, uncertainty, and expense of litigation. He can do so because the legal system does not adequately impose consequences on meritless lawsuits. He can do so because the legal system confers upon him the power of a schoolyard bully that can shake down kids for lunch money, because the grown-ups aren't around and are ineffective when they are around.
Yet Retraction Watch need not yield like a bullied kid.
First, Texas has a new and strong anti-SLAPP statute that will let Retraction Watch dismiss any lawsuit early and recover fees and costs. I've explained before how anti-SLAPP statutes help shorten meritless defamation cases and inflict costs on the parties who bring them.
Second, the internet helps call bullies out. Dr. Aggarwal and Mr. Mahadass, I'd like you to meet the Streisand Effect. You're going to have a lot to talk about. Query: have you met before? Mr. Mahadass, before you sent a bumptious letter making legally unsupportable threats against a blog with a wide audience, did you know about the Streisand Effect, and did you advise your client about the potential consequences of your letter?
Third, some of us are not willing to put up with this sort of thing any more. When entitled parties and thuggish attorneys can threaten bloggers with meritless lawsuits with impunity, everyone's right to free speech is threatened. That's why I use the Popehat Signal to seek out pro bono defense for bloggers threatened with censorious lawsuits, and why I work to connect threatened bloggers with free speech groups that defend them. I've almost always been very pleased by the response from the legal community when I've asked for help for a blogger. I've helped people find help in Texas before. Retraction Watch hasn't asked me for help. But if they ask, I'm confident I can get it for them. They shouldn't have to take anything down because they can't afford a lawyer. If you'd like to help — if Retraction Watch needs help — reach out.
My Dialogue With Mr. Mahadass
In closing, I note that I wrote to Mr. Mahadass asking for a comment about this post. Here's our dialogue. See if you can spot the scare quotes that made me laugh out loud.
Dear Mr. Mahadass:
I am an attorney in Los Angeles, a member of the First Amendment Lawyers Association, and a blogger. When I write I often focus on free speech issues, particularly legal threats against bloggers, SLAPP suits, and related issues. In addition, I often arrange pro bono assistance for threatened bloggers.
I write in connection with your lawsuit threat against the blog Retraction Watch on behalf of your client Dr. Aggarwal. I am investigating the threat in order to write about it.
Are you willing to make any comment about the matter? I am particularly interested in whether you will comment on what specific statements of fact on Retraction Watch you believe are false, the basis for your demand that all articles about Dr. Aggarwal be removed, your familiarity with Texas' anti-SLAPP statute, your familiarity with the Streisand Effect, and related issues.
Please let me know if you'd be willing to answer some questions.
I will more than happily discuss these matters with you if you are confirming your representation of the owners of Retraction Watch. I have been keeping up to date with the posts and the "free speech" posts regarding this case. Please feel free to investigate as much as you want. Send me a confirmation letter of your representation and we can begin,
I am not representing anybody. My interest, for now, is as a writer on SLAPP issues and legal threats. I have not been asked to assist the site. If I am asked, my role will be to to solicit pro bono legal assistance from them.
I am writing about your threats, for my audience of people interested in legal threats, and asking if you would like to comment.
Thanks for your correspondence. Best wishes on your website.
Edited to add: Even though I haven't yet lit the Popehat Signal, I've already gotten three offers of pro bono legal help from Texas attorneys, including one with anti-SLAPP experience. You people rock.