Battlefoam Learns Why Legal Threats Can Be Dangerous
The Streisand Effect is one possible bad consequence of a legal threat designed to remove content from the internet.
But it's not the only possible bad consequence.
Battlefoam makes storage containers for miniatures used in wargaming. If you don't know what that means already you'll just be irritated if you try to find out, so don't bother. Battlefoam's exec Romeo Filip was angry at some things someone wrote at a site called The Blood of Kittens Network. That site is "devoted to spreading a heritical understanding of the Warhammer 40k universe to neophytes and devotees alike." Again, if you don't know what that means, you very likely don't want to know. Just nod your head and move along.
Anyway, Battlefoam and Filip got some Arizona lawyers to write a very blustery cease and desist letter. It's not the worst cease-and-desist I've ever seen — it does some things to avoid the Streisand Effect, like specifying particular statements that Battlefoam thinks are false — but its language and demands are extravagant. It also offers a short drop-dead date for capitulation.
Lawyers offer short deadlines hoping to convey seriousness and determination. Sometimes it works. Other times, it conveys "there's no point in negotiating with these people."
As followers of The Oatmeal saga will recall, a subject of blustering legal threats need not stay on the defensive; there are offensive options as well. That's exactly the approach Blood of Kittens and its owner, Nicolas Hayden, took. They siezed the initiative and filed a strong declaratory relief action in Northern California, seeking a court determination that the posts about Battlefoam and Filip are protected by the First Amendment. They are being represented pro bono by First Amendment badass Marc Randazza and his colleague Gil Sperlein, also a notable First Amendment practitioner.
Now, unless Battlefoam can get the action dismissed or moved, Blood of Kittens has chosen the forum, the time, and the framework of the litigation, and is represented by two exceptional First Amendment practitioners.
Had Battlefoam's lawyers written a less blustery, less demanding letter, this might not have happened. They could have written a polite but firm letter saying they wanted to discuss resolution of concerns about false statements. They could have avoided purple prose and demands for things they could never get in court. Then Hayden might not have been able to attract two of the nation's best defamation defense attorneys to work for him for free. He might not have attracted anyone to file a declaratory relief suit, and indeed the grounds for such a suit (the clearly presented immediate controversy) might have been unclear.
But Battlefoam's lawyers decided to please their client with a take that type of letter.
Hey guys. Was it worth it?
Edited to add: Thanks to a commenter, I see that Romeo Filip did a podcast yesterday. At about the 60 minute mark he talks at length about the litigation, demonstrating that he doesn't understand declaratory relief, attorney fees, or the law. Plus, in a case in which he says it is defamatory to say he physically assaults critics, he shrewdly jokes (Kind of — I think) about punching critics in the face. Genius. Sheer genius. I presume his attorneys didn't know he was making their job so much more difficult. If he has meritorious claims — if Blood of Kittens posted false statements of fact with the requisite intent — he just significantly reduced his chance of winning. Clients.
Last 5 posts by Ken White
- Sorry, Melissa - July 20th, 2014
- "Crisis Manager" Xavier Hermosillo Shrewdly Defuses Immigration Tumult By Threatening Cartoonist - July 16th, 2014
- Gleeful Troll Todd Kincannon Files First Amendment Suit Against South Carolina Attorney Authorities - July 15th, 2014
- Warrants: Bulwark Of Liberty, Or Paper Shield? - July 15th, 2014
- Monday Schadenfreupdates (Now Updated!) - July 14th, 2014