Popehat Signal: Urologist Threatens Penis-Enhancement Forum

New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

Popehat Signal courtesy of Nigel Lew. Thanks, Nigel!

It's time for the Popehat Signal, the feature in which we seek pro bono help for an online writer threatened with frivolous and censorious litigation.

Thundersplace.org is a forum devoted to discussing penis enhancement of various sorts. There's a forum for everything on the internet, you know.

Last April a user wrote a post describing a harrowing experience with surgical penis enhancement. How harrowing? I read it and I cringed so much my cringer broke. I am completely without cringe now. I can watch primary debates without any change to my affect.

The anonymous user claimed to be a patient of Dr. James Elist, a Beverly Hills urologist. Suffice it to say that this was not a positive consumer review.

This, my friends, is America. So Dr. Elist hired an attorney, Elliott Benjamin of Parker Mills LLP in Los Angeles. Mr. Benjamin sent a legal threat to both thundersplace.org and, incredibly, Cloudflare. Mr. Benjamin asserts that thunderspace.org has an obligation to verify the accuracy of statements by forum users:

You have permitted these inaccurate and negative postings to appear on the Website without seeking to verify the veracity of their contents.

Mr. Benjamin demands the usual suspects:

Consequently, on behalf of our client, we hereby demand that (1) you immediately remove the negative content posted by your member "txhog", together with all related threads and postings, from the Website, (2) thundersplace.org immediately cease and desist from any further derogatory postings of any kind about Dr. Elist, (3) you immediately provide us with the name and contact information of the user posting such disparaging comments, and (4) you post an announcement in a conspicuous place on the Website acknowledging that the defamatory statements have been removed due to your inability to verify their accuracy. Failure to comply with the foregoing demands will leave our client with no alternative but to take action and seek all legal remedies available to him.

Mr. Benjamin's letter on behalf of Dr. Elist bears several prominent signs of aggressive bogosity. First, the letter utterly fails to specify what statements of fact in the forum post are false. You know my mantra: vagueness in defamation threats is a hallmark of meritless thuggery.

Second, and even more importantly, Mr. Benjamin's bumptious threat ignores the law governing the situation. His premise — that the forum is obligated to police user comments and verify their accuracy — is absolutely wrong as a matter of law. Under Section 230 of the Communications Decency Act of 1996, thundersplace.org is absolutely not liable for defamation for things that its forum users write; its owners are only liable for things they write themselves. This is not a close call. Nor is it an obscure or difficult point of law; it is the single most relevant, obvious, and dispositive legal issue concerning Mr. Benjamin's threat.

As always, such a threat raises questions. Did Mr. Benjamin send a legal threat whilst completely ignorant of the law governing it? Or did he know the law and just hope that he could dishonestly bully someone who didn't? For that matter, did Mr. Benjamin advise his client Dr. Elist of the Streisand Effect — the principle of internet culture under which his threat (all the more so because of its transparently feckless nature) would naturally draw several orders of magnitude more eyes to the anonymous complaint on the forum? I wrote Mr. Benjamin to ask, but received no response.

Regrettably, our broken legal system allows litigants and lawyers to inflict massive expense, stress, and violations of rights upon people whether they act from ignorance or mere thuggery or both. California has a strong anti-SLAPP statute, and thundersplace.org stands an excellent chance of prevailing on an anti-SLAPP motion and recovering attorney fees if Dr. Elist and Mr. Benjamin proceed on their meritless theory. But thundersplace.org — which does not make its owners much money — can't afford to hire a California attorney.

Can you help? Can you look past the somewhat snigger-worthy circumstances and assist an American in vindicating their constitutional and statutory rights? Our system is broken, and our rights are therefore too often merely hypothetical. But every time someone like you stands up for someone who can't afford legal assistance, our rights become a little less hypothetical and a little more actual. Every time a lawyer agrees to stand up against a patently frivolous claim like this one, it becomes a little harder to bully people through feckless threats. Every time a lawyer steps in and a threatener slinks away, a few more threats are deterred. The robustness of our freedom doesn't just depend on the big cases, the Cohen v. California or Brandenburg v. Ohio. It depends upon lawyers willing to contribute a few hours to making rights a reality. Will you help? Please consider it.

Updated With Awesomeness: A response already! David Casey is a repeat signal-responder — a few years ago he was instrumental to the resolution of a bogus dental threat. Now David Casey and his partner Brian Lynch have stepped up to offer assistance to the forum targeted here. They deserve thanks. You may not be the target of this threat, but when lawyers like David and Brian work pro bono, they are defending everyone's rights. Thanks!

Last 5 posts by Ken White

Comments

  1. Daniel says

    Thanks, Popehat, for finally giving me something law-related I can link to when my wife asks why there are penis enlargement sites in my internet history. It's legal research honey, I swear!

  2. chriscm says

    I think I deserve a substantial amount of credit for refraining from penis jokes, by the way.

    You've got the perfect amount of credit. Any more credit and it might hurt!

  3. DMcDowell says

    Given that the post is written in the first person, can we infer from the demands that the good doctor has had more than one patient with these issues?

  4. TimL says

    As disappointed as I am that you did not make penis jokes, I am sure that the other commenters will not disappoint.

  5. mcinsand says

    >>I think I deserve a substantial amount of credit for refraining from penis jokes, by the way.

    Ken, as much as I enjoy this site and your writing, I could not disagree more. Missed opportunities are wasted opportunities. In a story like this, you really needed to rise to the occasion. If that's a problem, though, I'm sure 'Dr.' Elist might be able to help.

  6. Ken in NJ says

    I think it's just awesome that his website offers a live chat with a "Male Enhancement Consultant." Unfortunately they seem reluctant to discuss this incident. I also suspect that encouraging people mentioning it to call the office to discuss it might not be the most prudent course of action

  7. James says

    Mr. Benjamin sure is acting like a prick. Maybe he should stop dicking around with these off-cocked legal threats and act like a functioning member of society. I hope the courts give this tool the shaft, knock on wood.

  8. McFate says

    I can see the conversation now:

    "With the insurance you have, you can't afford an A-list doctor. Hell, you can't even afford a B-list doctor."

    "So, who are you referring me to?"

    "Dr. E-list."

  9. Scott Jacobs says

    I think I deserve a substantial amount of credit for refraining from penis jokes, by the way.

    Indeed. You remained upright in your conviction to not thrust any juvenile jokes or puns, thus proving your rigid dedications to civility.

    Sadly, it really does appear that Mr. Benjamin's and Dr. Elist have really cocked it up here, and acted like a pair of nuts.

    A response already!

    I'm thrilled you were able to find someone to erect a proper defense for the website…

  10. Paul says

    As much as we all are quick to stand up for the hard task of thrusting puns or double-entendres into our posts here, it should be obvious that there is little challenge in such comments, however long they might be. It would be far more difficult, given the rigid nature of legal writing, to insert them into formal documents, especially when they're intended to come before a court. Perhaps our host can tell us: Is there a pre-existing system by which we might award points for the number and quality of such double-entendres used in such legal affairs?

  11. DMcDowell says

    Can the Doctor sue the attorney for causing greater harm to his rep than if he'd simply left it alone? It seems to me that Mr. Benjamin should have advised the doctor that there was no grounds for action to be taken.

  12. TimL says

    @Paul

    My recollection is that Ken blogged about a judge in Texas who wrote like this in one of his rulings. I'm not good with searches, but I am guessing that someone else could find it.

  13. Sami says

    Man, a total difference between men and women right here:

    I started reading the original post, but I'm tired, so I got bored. I get the impression, though, that it's totally a thing every man I know would cringe at massively.

    "Painful night-time erections? That sounds bad, I guess. Waking up to bloodstained sheets? Meh, in my sex we call that puberty."

    It's weirdly hard to empathise sometimes with anatomy you just don't have.

    Although I do want to give every user of that site a hug and tell them, "Sweetie, no. Just no. Resist body shaming! Your penis is big enough!"

    Because even if it's half an inch erect, there are workarounds at worst and just say no to letting people cut into your man bits!

  14. AH says

    And credit's given, Ken. You could of been a real cock about it.

    AAAAANYwho, hat's off to David Casey too. Way to stand up for that first amendment!

  15. Tradegeek says

    "I think I deserve a substantial amount of credit for refraining from penis jokes, by the way."

    Ken, we all know you are all about the strait and narrow. When somebody is getting the shaft, there is no need to droop down to the level of childish humor to get to the point. Just not the way to get a head.

  16. Coragerous Coward says

    This is the best two sentences on the Internet today: I read it and I cringed so much my cringer broke. I am completely without cringe now.

  17. Dictatortot says

    Salud, Messrs. Casey & Lynch, and all the props to you both. So shines a good deed in a naughty world. (I'll stop now, before a penis joke becomes unavoidable.)

  18. solaric says

    Has there been any progress on that federal anti-SLAPP legislation (H.R. 2304)? It's great here that California has such a strong state one, and I too am fortunate enough to live in a state that has at least a basic anti-SLAPP law, but something even stronger would be better, and there's still the issue of someone who ends up in federal court based on federal law. The EFF seemed pretty positive on it last May when it was introduced, and I've seen various letters of support pop up since introduction, but otherwise I can't seem to find anything on its progress one way or another.

    I know it's an election year and all, but going by the Public Participation Project's national map of states with their own laws on the books already it looks to me at least that this might be one of the rare cases where there is a pretty deep well of universal support across the spectrum. Any issue that can get everyone from strong red Utah/Oklahoma to strong blue Hawaii/Vermont on the same side, not to mention hugely powerful states like Texas and California, would seem like a stronger then normal chance to get something done. I guess to some extent no news is good news in that I haven't heard of it getting utterly neutered or anything either, but for the last 9 months when I see another unfortunate case like this I find myself checking to see if the federal ball has moved forward any. It'd be a nice positive story for the politicians to make some hay with sure, but it'd also be an honest good for the country.

    Edited to add: here's the Congressional page for it for others interested. It seems to have been picking up a reasonably steady stream of cosponsors which seems like a good sign to me, but I don't know how to find out from there what the committee has done or discussed about it, if anything.

  19. says

    Many thanks to Ken and the other fine lawyers here, who stand up for the small bloggers and discussion forums. Without Popehat, many of us would be taking the shaft.

  20. Doctor X says

    This post is awesome.

    The comments are awesome.

    The fact lawyers so quickly "rose to the occasion"–get it?–to insert their raging expertise into this censorious ass . . . hat . . . "asshat" . . . what did you think I meant–is TRULY awesome!

  21. Albert ARIBAUD says

    "You just contact the mayor’s office Popehat guy. He has a special signal he shines in the sky; it’s in the shape of a giant cock."
    (almost) Hit Girl, in Kick-Ass 1.

  22. albert says

    Dr.E practices in Beverly Hills, specializes in wee-wees*, Johnsons, Willies, tools, birds, poles, spears, making mighty swords, turning guns into rifles, turning cool Cadillacs into hot rods, etc. and has a huge web presence, all of it good (so I've seen in a quick perusal).

    But I'm not good at digging up dirt on other folks, as my garden already runneth over.

    Is he really a urological Mr. Clean, or what?
    ……………..
    * according to one site, there are at least 1500 other terms
    . .. . .. —- ….

  23. Mercury says

    "Last April a user wrote a post describing a harrowing experience with surgical penis enhancement. How harrowing? I read it and I cringed so much my cringer broke. I am completely without cringe now."
    ——————————————————————————

    Can a Memory-Foam mattress be subpoenaed?

    What if it's a "smart" Memory-Foam mattress?

    In light of the FBI vs. Apple dust-up I think this is worth determining with some certainty…

  24. MelK says

    CloudFare? Isn't that an Uber rival, but for Air travel?

    And, by the way, if there was such a typo, it's been fixed.

  25. Aaron says

    I read it and I cringed so much my cringer broke. I am completely without cringe now. I can watch primary debates without any change to my affect.

    Sentences like these are why I read Popehat year after year.

  26. ysth says

    What a dick.

    Whoever CloudFare might be, they appear to have sent the threat letter to CloudFlare's office instead.

  27. BadRoad says

    Who else thinks Mr. Benjamin and Dr. Elist should both be blackballed?

    @Paul

    As much as we all are quick to stand up for the hard task of thrusting puns or double-entendres into our posts here, it should be obvious that there is little challenge in such comments, however long they might be. It would be far more difficult, given the rigid nature of legal writing, to insert them into formal documents, especially when they're intended to come before a court. Perhaps our host can tell us: Is there a pre-existing system by which we might award points for the number and quality of such double-entendres used in such legal affairs?

    Good point! I'm eager to see the contents of everyone's briefs.

  28. Achillea says

    Mr. Benjamin sure is acting like a prick. Maybe he should stop dicking around with these off-cocked legal threats and act like a functioning member of society. I hope the courts give this tool the shaft, knock on wood.

    And impose some stiff penalties. Time for the rubber to hit the road.

  29. Fasolt says

    @somebody,

    I believe a Cloudflare is what happens when you light your farts. That might be complete cockamamie though.

  30. Stephen Joyce says

    Dr Elist is not the only massive bloody cock in this story…
    But the other one isn't a result of his handiwork.

  31. andrews says

    According to the firm website, referenced above, it appears that Mr. Benjamin is an expert in real estate transactional law. As a result, people ought to lower their expectations of him when it comes to things which involve tort claim litigation.

    There are rules in many states advising lawyers to avoid areas in which they are not competent, but he is in California, and my knowledge of that state is extremely limited. Before posting rules-based criticism, be sure to check the rules applicable in that state.

Trackbacks