Scott Greenfield over at Simple Justice gets threatened with litigation a lot. He gets threatened more than I do. I'm trying not to resent this. Yes, Scott's blog output is more robust, and he has decades and decades more experience in annoying people, but I like to think that I provide an atisanally annoying experience. Are you not libeled?
Anyway, this time Scott's being threatened by an Ohio attorney named Dean Boland. Boland caught some bad publicity a few years ago for . . . well, let's the United States Court of Appeal for the Sixth Circuit describe it:
To help defendants resist child-pornography charges, technology expert and lawyer Dean Boland downloaded images of children from a stock photography website and digitally imposed the
children’s faces onto the bodies of adults performing sex acts. Boland’s aim was to show that the defendants may not have known they were viewing child pornography. When the parents of the children involved found out about the images, they sued Boland under the civil-remedy provisions of two federal child-pornography statutes. The district court granted summary judgment to the parents and awarded them $300,000 in damages. We affirm.
Anyway, Scott wrote about this case quite sympathetically, suggesting that Boland's actions did not warrant civil or criminal liability. Now, more than a year after asking Scott nicely to take the post down, Boland has resorted to threats.
By way of summary, you cite to a Wired article and quote as follows: “Boland was an expert witness for the defense in a half-dozen child porn cases and made the mock-ups to punctuate his argument that child pornography laws are unconstitutionally overbroad because they could apply to faked photos.”
This quoted statement is false. The exhibits were not used for that purpose at all. This statement is false and defamatory and is causing me professional financial harm which is calculable.
This statement in the article is defamatory and false: “As a result, in 2007 he found himself the defendant in a deferred federal child-porn prosecution in Ohio….” I have never been involved in any prosecution, never been a defendant in a criminal matter and have maintained good standing as a lawyer in Ohio with a no discipline record. I did not enter into any agreement called a “deferred prosecution agreement” nor even words to that effect. This statement is false and defamatory and damaging to my professional reputation.
“Given that Boland was prosecuted (even though it resulted in a deferred prosecution)” Again, this is a false statement. I was never prosecuted for any conduct in this case nor any other. I never entered a deferred prosecution agreement with the government. This statement is defamatory and causing me real, financial harm which is calculable.
Very bad judgment appears to be Mr. Boland's habit. This is an incredibly stupid and reckless approach, certain to trigger the Streisand Effect and generate far more bad publicity. Scott's comments are all supported by the Sixth Circuit decision describing Boland's case. And that's not all. I went on PACER and pulled many filings from Boland's case. I pulled, for instance, Boland's Pretrial Diversion Agreement with federal prosecutors, which includes stipulated statements of fact consistent with Scott's (and the Sixth Circuit's) description. I pulled a federal prosecutor's leter threatening to revoke that Pretrial Diversion Agreement based on Boland's apparent denials of facts in the civil case. I pulled a transcript of his expert testimony that seems to support the characterization of it. I pulled Boland's own pro se filings from the civil case, which supported Scott's (and the Sixth Circuit's) characterizations.
Based on reading Boland's pro se filings, I suspect he has some sort of elaborate semantic theory in mind: the agreement was a "Pretrial Diversion Agreement" and not a "deferred prosecution agreement," and so forth. That's frivolous. Truth is an absolute defense to defamation, and for these purposes truth means "substantial truth." A harmful statement is true for purposes of defamation law if it gets the "gist" or "sting" of the harmful fact right. Under this doctrine it doesn't matter what you call Boland's agreement; it matters that its nature and effect were correctly described. The same is true for any linguistic argument Boland might construct about the exact nature of his expert testimony.
It's rare to see a defamation threat directed at statements that are so clearly and easily proved true based on the public record. Boland doesn't need a defamation suit. He needs a good friend to talk him out of this idiocy. This will not end well for him.
Stupid defamation threats: don't make them.