If The Carpet Doesn't Match The Drapes, Keep Your Mouth Shut
I'm a terrible decorator. If it were up to me, the house would have my college-era Matisse red-fish-in-the-bowl poster and some off-blue throw pillows. So I'm sympathetic to the notion that skills, and tastes, in home decoration vary wildly.
Still, some decoration choices inspire comment. Take, for instance, the decorating choices in a large house on Lake Avenue in a nice town in Connecticut, pictured (at least for now) here and here and here. There are some pictures below the the jump below.
Don't make fun of them, or attorney Brendan J. O'Rourke of New Canaan, Connecticut may threaten to sue you.
See, some people think the decorating choices in this fine house on Lake Avenue are worthy of critique, and possibly even of vivid ridicule. Consider these:
Those are pictures, by the way, that the owners of the house — who are trying to sell it — arranged to be posted on the internet to advertise it.
When the Hooked on Houses blog featured it — not to make fun of it, but as a quirky and interesting house — some of the resulting comments were jibes at the decor. The same happened when Blogger Christopher Fountain talked about the house. He drew comments like this:
And what’s wrong with clown-themed decor? Appeals to both sellers and any possible buyers
Such is life on the internet, as anyone who has spent more than five minutes on the internet knows. The internet is where people, freed by distance and anonymity, write what a substantial percentage of people who have ever visited the house on Lake Avenue have been thinking: "holy shit, this decoration looks like something out of a crazy person's tequila nightmare."
So no harm, no foul, right? Someone posted pictures of their house on the internet to sell it, other people made fun of the pictures. That's life on the internet. That's life in a society with free expression.
Oops, send in the lawyers. Attorney Brendan J. O'Rourke of O'Rourke & Associates sent a threatening letter to blogger Fountain objecting to the comments made about the house on Lake Avenue. In case the letter gets taken down, I've hosted it here. Here's the heart of it:
We are in the process of evaluating various causes of action that our clients have by reason of the contents of your website and the statements you have made therein concerning the premises. We are also evaluating your conduct in the context of your status of an attorney and real estate broker, both of which professional positions create duties and obligations concerning how you conduct yourself and communicate with the public.
My clients are attempting to sell their property at what is known to be a difficult time and your website and related comments constitute an attempt to interfere with the sale of the property. As such we request that you withdraw from your website all material pertaining to the above premises. Failing to do that, we will take all appropriate action.
Let's cut to the chase — this is a loathsome, petty, thuggish threat, but also a rather transparent one. Consider:
1. Brendan J. O'Rourke carefully avoids specifying exactly what statement on Fountain's site is objectionable, and exactly how, which any competent attorney would do in any genuine cease-and-desist letter — as opposed to a thuggish bluff.
2. Brendan J. O'Rourke carefully avoids specifying exactly what rule of conduct for lawyers or real estate brokers Fountain has allegedly broken, as any competent attorney would in any genuine cease-and-desist letter directed at conduct that violated some rule or law the attorney could articulate.
3. Brendan J. O'Rourke speaks of "evaluating various causes of action." A genuine cease-and-desist letter by a competent attorney will specify particular causes of action. Failing to specify one almost always means if I specify one I will look like an ass because it will be transparently bogus, so I will bluff.
4. Brendan J. O'Rourke's central premise is spectacularly fatuous. I'd like him to explain this to me: what class of potential house-buyer would refrain from buying the house based on comments on a web site making fun of the decor, but would still have bought it if they had seen the decor in person? Perhaps Mr. O'Rourke is familiar with a class of homebuyers who make choices based on comments they read on obscure blogs like Mr. Fountain's or mine.
This is most likely a bluff. We have no basis to believe that Mr. O'Rourke would actually sue Mr. Fountain based on the blog comments — such a suit would be profoundly frivolous. Regrettably Connecticut does not have an anti-SLAPP statute, so it might be difficult to recover fees if Mr. O'Rourke did, but I seriously doubt Mr. O'Rourke would be that foolhardy. Aside from the First Amendment and Section 230, he'd face a wide array of proof problems.
Rather, it appears likely that Mr. O'Rourke — like so many lawyers who send vaguely threatening letters to web sites — figured that he could intimidate Mr. Fountain. That attempt appears to have been unsuccessful. More importantly, it was remarkably foolhardy. Anyone with ever a passing familiarity with the internet and blog culture would have realized that the probable impact of this vaguely threatening letter would be to more widely publicize the criticisms of his clients' home. That's exactly what has happened. O'Rourke's threatening letter was posted and commented on — as many such letters are — and then big-time blogger Walter Olson of Overlawyered picked it up, which is where I saw it. Such letters are widely regarded by people who have seen them as thuggish at worst and hilarious at best, and sending one often results in the content it complains of getting more attention — often by orders of magnitude — than it otherwise would have. If the content of Mr. Fountain's blog is actually harmful to his clients' chances of selling the home on Lake Avenue, Mr. O'Rourke has guaranteed that harm will be far more widespread than it otherwise would have been.
What goes through the mind of a lawyer who sends such a letter? Perhaps Mr. O'Rourke is not sufficiently familiar with internet culture to recognize this probable result. Perhaps he gambled — foolishly — that his letter would intimidate Fountain into silence. Perhaps he will let us know. Perhaps he regrets it already.
[Note that I have not named the sellers of the home. They are only guilty of having eccentric decorating taste and of receiving bad legal advice.]
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