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Jun 15, 2012 
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Note: our entire series of posts about the Oatmeal v. Funnyjunk situation is now complied under the Oatmeal v. Funnyjunk tag.
In Part One, I praised The Oatmeal's awesome response to a frivolous, censorious, thuggish demand letter from attorney Charles Carreon on behalf of FunnyJunk. In Part II, I wrote about how Charles Carreon likes the type of bullying he is licensed to practice but not the type that any dope with an AOL account can pursue.
Recent developments merit comment.
First, Mr. Carreon altered his personal web site, leaving a notice that it was down "due to security attacks instigated by Matt Inman," the author of The Oatmeal. This caused much I'm-an-internet-lawyer speculation about whether the accusation against Mr. Inman is defamatory. My opinion based on experience litigating First Amendment issues: probably not. It can be read literally, as claiming (falsely, based on the evidence) that The Oatmeal specifically instructed readers to commit "security attacks" against Mr. Carreon. It can also reasonably be read to assert "I'm butthurt because The Oatmeal said mean things about me, and some of his readers read his description of my behavior and as a result attacked my website." To generalize briefly, if the statement is reasonably susceptible to a non-defamatory meaning, then it's not defamatory. That, by the way, is one of the reasons that Mr. Carreon's original demand letter was frivolous.
Second, Mr. Carreon changed his web site again. At the moment it redirects to a site offering a free download of his book, headed with a slowly cycling and somewhat creepifying message, one line at a time:
TO THE PEOPLE OF THE INTERNET
PLEASE ACCEPT THIS GIFT, WHICH IS ALL THAT I HAVE TO GIVE
THIS IS THE ONLY BOOK I HAVE WRITTEN, AND I WROTE IT FOR YOU
THANK YOU FOR COMING, WHATEVER BROUGHT YOU HERE
PLEASE ENJOY THE WRITING
I HOPE YOU LAUGH, AND LEARN TOO
MAY WE ALL TOGETHER MAKE THIS WORLD A PLACE OF PEACE AND HAPPINESS
I studied these words for some time, searching for a hidden message or code that would cause me to have an it's-a-cookbook! moment. So far, nothing. Given his target audience of The Oatmeal fans, I would have recommended a shorter message, like IT'S DANGEROUS TO GO ALONE, TAKE THIS.
This would seem to be a conciliatory message, a signal that this matter ought to subside, that Mr. Carreon will cease explicit or implicit threats and slip below the waves of the internet scandal-of-the-week cycle.
Alas, it seems that is not to be.
Third, Mr. Carreon gave another interview, this time to Dave Thier of Forbes, thinking that doing so again would make things better.
This was a key opportunity to push the conciliatory approach reflected in his web site and convince internet inhabitants to lose interest and wander away to look at something shiny.
But it didn't go that way at all.
“So someone takes one of my letters and takes it apart. That doesn’t mean you can just declare netwar, that doesn’t mean you can encourage people to hack my website, to brute force my WordPress installation so I have to change my password. You can’t encourage people to violate my trademark and violate my twitter name and associate me with incompetence with stupidity, and douchebaggery,” he says. “And if that’s where the world is going I will fight with every ounce of force in this 5’11 180 pound frame against it. I’ve got the energy, and I’ve got the time.”
Charles Carreon is doubling down. Charles Carreon is going full Rakofsky. You should never go full Rakofsky.
It's clear that Charles Carreon is still issuing censorious threats — he's just making them vague. But as I say here all the time, vagueness in a legal threat is the hallmark of frivolousness and thuggery. What few specifics he offers are plain wrong. I've yet to see any statement by The Oatmeal asking readers to contact Carreon or his client at all, let alone a request that they hack or otherwise abuse them. (In fact, it's Carreon's client who explicitly asked his supporters to contact The Oatmeal.) The argument Carreon seems to be advancing is "if you have an audience, and you point out obnoxious behavior by someone and ridicule it, then you should be treated as inciting any conduct in which any reader engages." That's a familiar argument — you see it from threatening lawyers and indifferent or incompetent judges — but it's plain wrong. Speech is only actionable incitement when it intended to create, and likely to create, a clear and present danger of imminent lawless action. A person who genuinely gave a shit about the First Amendment, as opposed to wallowing in his own stinking petulance, would know that.
The implications of Mr. Carreon's position are profoundly chilling. Under the rule he seems to suggest, if you write about bad behavior by someone else, even if you don't urge action, you run the risk that you will be held liable when one of your readers is inspired to hack or threaten or harass. Perversely, this means that the more criminal or unconscionable or horrific the conduct you are describing, the greater legal risk you take by writing about it. That's not the law, thank God. The very suggestion is un-American and contemptible.
Moreover, note that Mr. Carreon is suggesting that it is actionable not only to inspire people to undertake (alleged) illegal action, but actionable to inspire people to "associate me with incompetence with stupidity, and douchebaggery." In other words, if your criticism of someone's conduct leads others to form an opinion of him, and express that opinion, that's actionable. That's true to the extent that someone states false facts about a person — for instance, by falsely accusing them of child abuse. But The Oatmeal offered satirically expressed opinions about Mr. Carreon's conduct in a letter which The Oatmeal presented to his readers to review. To the extent that The Oatmeal opined that Mr. Carreon is incompetent, stupid, and a douchebag, those are classic opinions absolutely protected by the First Amendment. Under First Amendment law governing defamation, they are particularly protected because The Oatmeal presented the facts based on which he drew his opinions — namely, the letter itself. Under the theory that Mr. Carreon seems to be advancing, if I wrote you a letter suggesting that your wife beds down with diseased ocelots and calling for your children to be flogged, and you publish the letter and say that it suggests that I am a disturbed person of low character, then you would be legally responsible if people formed the same opinion based on the evidence you provided. Indeed, under Mr. Carreon's apparent theory, if he criticizes The Oatmeal's response to him as vulgar or unprofessional or uncivilized, he's legally responsible for people agreeing with him. This is not law, this is madness. And bear in mind that Mr. Carreon markets himself as a First Amendment champion.
Mr. Carreon says this to his latest interviewer:
He may have a very difficult time proving that Inman “instigated attacks,” as he said on his website, but he’s certain he can find some legal recourse for what’s going on right now – “California code is just so long, but there’s something in there about this,” he says.
Oh, Mr. Carreon, indeed there is. There's California's magnificent anti-SLAPP statute, under which you'll be paying the attorney fees of anyone you sue. There's California's judgment debtor exam law, under which you can be interrogated about your income and assets in preparation for garnishing your income and, if necessary, seeking liquidation of your assets to satisfy a judgment for attorney fees against you. There's California's sanctions statute, under which you can be sanctioned for bringing suit to harass or without adequate legal or factual basis.
Read them carefully. And think. Think hard. Step back from the precipice. This can get better, by you letting it go. Or it can get worse. Much, much worse.
[Note: Mr. Carreon asserts that his site was hacked. I don't know whether that is true or not. If it is, it cannot be attributed to The Oatmeal standing up for himself. But if you are doing anything illegal -- like hacking, or making true threats -- you are a foe, not a friend, of the First Amendment. If anyone has any information on another person hacking or making true threats, you should turn them in to face criminal or civil consequences. On the other hand, bear in mind that "your criticism led to my site being hacked and me getting death threats!" is now the cry of nearly every person who becomes the internet's asshole-of-the-week, and the claim should not be accepted without proof.]
Last 5 posts by Ken White
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Free Speech, Lawyers Behaving Badly, Legal Threats, Oatmeal v. FunnyJunk
