Marc Randazza Defeats The Very Sensitive Raanan Katz On Prior Restraint Issue

You may also like...

59 Responses

  1. CheshireLion says:

    I wonder sometimes if cases like this will be the flash point for some businesses to start lobbying against section 230 of the Telecommunications Act of 1996. Though the chances are there are already people working to undermine it already.

  2. Erich says:

    Great post. Haha, but not perfect, I found a flaw!
    Well, no, not really, just a double "the" — "putting blogging into the the context…"

  3. Chris says:

    I wonder sometimes if cases like this will be the flash point for some businesses to start lobbying against section 230 of the Telecommunications Act of 1996. Though the chances are there are already people working to undermine it already.

    I'm sure there are, but Section 230 is very important to online businesses and social network sites like Google, Facebook, and Amazon. So there are very powerful interests dedicated to keeping it on the books.

  4. The win is nice, and there is a good deal of very nice language, but the opinion's assertion that a PRELIMINARY injunction could have been entered against online criticism could have been entered had plaintiff only provided proof that the criticism was hurting its business is very disturbing.

  5. @Paul:

    I was thinking the same thing. The only difference between an injunction and this order was an affidavit by some lost customer saying:

    "Before purchasing from plaintiff, I searched Google, found a review site, and read the review by defendant. Then I decided not to do business."

    That's it? The next case will have that attached.

  6. Darryl says:

    The conclusion in the opinion is very broad and right on point.

  7. ysth says:

    Shouldn't it say "So sue me, Raanan"?

  8. Darryl says:

    Paul, wouldn't the Plaintiff still have to show that the "criticism" was a false statement of fact? Having your business hurt by opinions or truthful statements couldn't possibly be actionable, could it? At least in Texas you have to show "independently tortious" activity in order to have a claim for tortious interference.

  9. @Darryl:

    IANAL, but I think the point here is that you won't know a criticism is a false statement of fact until after discovery. And that's a pretty painful, expensive process to go through.

    Since the case (under this show-lost-business-for-prior-restraint suggestion) can't be dismissed in the early stages, this sets a supporting precedent for harassing lawsuits.

  10. XS says:

    The sun must be extraordinarily bright in Florida.

  11. Pub Editor says:

    What are the odds Katz decides to appeal this to the Florida Supreme Court? I mean, he'll lose there, too — I'm just wondering if there will be a further appeal.
    (And the Florida Supreme Court probably has the discretion to decline to hear the case.)

  12. JeffM says:

    I am not arguing what the law is, but I am dubious that the receipt of monetary damages after the fact can always remedy the harm that defamation can do, and obviously a monetary judgment that cannot be collected is no remedy at all.

    So I can see a moral argument for prior restraint in certain limited situations. It is of course easier to argue what the law is, but that does not make the law moral.

  13. BCP says:

    Good result, but the unintended consequence will be that you won't be able to enjoy a meal in a diner in Florida anymore without John Goodman making a scene.

  14. Todd Knarr says:

    @Michael: I think the ruling covered the "lost business" argument in the final bit quoted about the person on the sidewalk with the "DON'T BUY HERE!" sign. Even if customers saw the sign and decided not to buy, that wouldn't be enough to justify an injunction. The person with the poster would have had to go inside the dealership and directly approach individual customers. Someone reading the review and deciding not to buy would be in the position of someone who saw the sign and decided not to buy from that dealership.

  15. Anonymous Coward says:

    I like how Mark's official title at Popehat is "First Amendment Badass"

  16. Pub Editor says:

    Jeff:

    "I am dubious that the receipt of monetary damages after the fact can always remedy the harm that defamation can do, and obviously a monetary judgment that cannot be collected is no remedy at all."

    My sense is that for most defamation plaintiffs, monetary damages are a second-order concern, subsidiary to the twin goals of (1) having a court of law declare that the defamatory statement was false, and (2) discouraging any third parties from repeating the defamatory statement.

    Although many jurists would deny it, the money damages are more about inflicting pain upon the defamer, pour encourager les autres, not really compensating the plaintiff. Treble damages in some other contexts (like antitrust) serve a similar purpose: punishing the defendant, so that other potential defendants are put on notice.

    Beyond that, I'm not sure that your "moral argument for prior restraint in certain limited situations" is nearly enough to overcome the practical arguments that exist against prior restraints on speech — e.g., chilling effect, the difficulty for a restrained person of knowing what speech is still OK, potential for abuse by the powerful and the connected, etc.

  17. Dan says:

    @Pub Editor
    Compensatory damages are intended to compensate–to, as much as possible, put the plaintiff back in the same position they'd be in if the tort had never happened. Sure, that often can't really happen (money won't replace the leg that you lost in the car wreck), but that's the goal. They are explicitly not intended to punish the defendant, only to make the plaintiff whole.

    Punitive or exemplary damages are intended to punish the defendant. Both compensatory and punitive damages can be available to a defamation plaintiff, depending on the facts of the case. It's too broad of a statement to say the the purpose of all money damages is to punish the defendant.

  18. Pub Editor says:

    Thank you, Dan. Believe it or not, I do understand the distinction between compensatory damages and punitive damages, although I did not mention that in my post. Mea culpa.

    Jeff was saying that compensatory damages, in a defamation case, cannot really make the plaintiff whole. Which is probably true in many or most instances. He was indicating that this insufficiency was part of a moral argument to justify prior restraint.

    I was saying (1) that plaintiffs may have slightly different goals than seeking "wholeness" through compensatory monetary reparations (regardless of what the legislature or judges "intend" for compensatory damages to accomplish in the defamation context), (2) that punitive damages do exist, and exist in part to discourage similar behavior by similarly placed potential defendants, and (3) that none of this added up to a sufficient argument in favor of prior restraint.

  19. JeffM says:

    @ Pub Editor

    I admit I did not try to define what situations might morally warrant prior restraint, nor did I try to define what prior restraint might entail. However, as it has come to be used, "prior restraint" does not mean only restraint prior to initial publication, but restraint while litigation on the merits is pending, which in the US takes years (I was involved in litigation that spanned more than a decade; I can't tell you much fun an interlocutory appeal to the US Supreme Court is). Justice in the US is always denied because it is always delayed, but the lawyers do collect a lot of fees, which is nice for them.

    I am not impressed by the "chilling effect" argument: why should prior restraint be any more chilling than a monetary penalty except for the judgment proof.

    As for the "difficulty of knowing what speech is still OK," that seems to be simply assuming that "prior restraint" must be broad or vague. If X says that, absent a showing of any credible evidence, Y should stop saying that X and Z conceived a child while married to others because it is false, I do not see why that is vague or unclear. Here, however, we may be talking past each other. What I am contemplating is generally not restraint prior to publication, but restraint during litigation. (Of course, we could just dispense with the law and its delays altogether and revert to duels and blood feuds.)

    As for your implication that the courts have been corrupted by the powerful and connected, that entails that those defamed cannot even expect to get the money that the law pretends to offer in compensation for their wrongs. Surely if the the powerful and connected can manipulate or control the judiciary to get unwarranted injunctions they can also manipulate or control the judiciary to get unwarranted verdicts.

  20. My favorite sidebar to this story: Do a whois search for the owner of ranaankatz.com

    Domain Name: RANAANKATZ.COM
    Registry Domain ID: 1731471353_DOMAIN_COM-VRSN
    Registrar WHOIS Server: whois.godaddy.com
    Registrar URL: http://www.godaddy.com
    Update Date: 2013-07-05 14:17:22
    Creation Date: 2012-07-03 18:38:31
    Registrar Registration Expiration Date: 2014-07-03 18:38:31
    Registrar: GoDaddy.com, LLC
    Registrar IANA ID: 146
    Registrar Abuse Contact Email: abuse@godaddy.com
    Registrar Abuse Contact Phone: +1.480-624-2505
    Registrant Name: Reverend Crystal Cox
    Registrant Organization:
    Registrant Street: PO Box 2027
    Registrant City: Port Townsend
    Registrant State/Province: Washington
    Registrant Postal Code: 98368
    Registrant Country: United States
    Registrant Phone: +0.4062704046
    Registrant Phone Ext:
    Registrant Fax:
    Registrant Fax Ext:
    Registrant Email: savvybroker@yahoo.com

  21. Pub Editor says:

    @ JeffM:

    I am not impressed by the "chilling effect" argument: why should prior restraint be any more chilling than a monetary penalty except for the judgment proof.

    Prior restraint, generally through preliminary injunctions and TROs, does not have the benefit of jury and appellate review prior to execution.

    Also, I think that, for most people, a court order here and now has more chilling effect than the possibility of an adverse verdict many months or years down the road. Violation of a prior restraint injunction can also lead to imprisonment for contempt — all before there has been any jury trial or appellate review, as noted.

    I suppose I can't prove it, but it happens that SCOTUS agrees with me: “A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted…. A prior restraint, by contrast, … has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976).

    As for the "difficulty of knowing what speech is still OK," that seems to be simply assuming that "prior restraint" must be broad or vague.

    Narrow prior restraint orders (including restraint during litigation) are interesting hypotheticals. What I have actually seen, though, in this space and elsewhere, are broad orders like the injunction in Michigan forbidding one member of a class action from communicating with other members of the class, or the original prior restraint order in the Roger Shuler case down in Alabama, which forbade "'any defamatory statement about Petitioners, including, but not limited to' the specified statements." (subsequently amended) Perhaps this is an unrepresentative sample, and other judges are more careful. But I am skeptical.

    With a defamation case, we have the benefit of focusing on particular statements; but when a judge is crafting a prior restraint order, the order almost always encompasses speech beyond those specific statements that are already in the air — as the Michigan and Alabama examples show.

    Surely if the the powerful and connected can manipulate or control the judiciary to get unwarranted injunctions they can also manipulate or control the judiciary to get unwarranted verdicts.

    Just because the powerful and connected already have a number of weapons in their arsenal does not mean that we as a society have to give them more weapons.

  22. Sami says:

    Huzzah!

  23. Daniel Neely says:

    Have there been any updates in the Majed Moughni case? A cursory googling turned up nothing since shortly after the initial prior restraint order.

  24. A says:

    Raanan Katz attempted to hold Chevaldina in criminal contempt for continuing to write blog posts after the injunction was ordered, but attorneys Jeffrey Crockett, David Zack, Richard Burton, Ben Kuehne, Marc Burton, and Daniel Poterek successfully obtained an eleventh hour stay of the injunction just before the criminal contempt trial was slated to begin. Thankfully the Third District issued some very pointed and insightful rulings during this appeal, including issuing the eleventh hour stay prior to issuance of its opinion in the main appeal rendered yesterday.

  25. JeffM says:

    @ Pub Editor

    I appreciate the sense and thought that goes into your replies. Nevertheless, I think you keep missing the point of my comment. I am neither arguing the law as it purports to be nor the law as it works through the thoroughly corrupt system actually in place in the US. I am arguing morality, and I see no reason to defer to SCOTUS, the apex of that systematic corruption, on morality.

    If a person is defamed and cannot get prompt relief, the person may be harmed, perhaps severely, perhaps permanently. US law makes a pretense of providing a remedy through money damages at the end of a long, expensive, aleatory and frequently corrupt process. This is morally disgusting.

    How long will it take a civil case to come to trial? How long does the appeal process take? If during that process defamation is allowed to continue, how does that balance the moral rights of the possibly defamed against the moral rights of the possibly truthful? Civil suits in the US may not come to trial for years, and in the meantime people may lose jobs, marriages may be broken, etc. How much money is a good marriage worth? Meanwhile, lawyers cite cases as though the law necessarily has moral validity. I do not deny that some laws have moral validity, but that does entail that all laws have moral validity. The law is the creature of the state, that "bastard child of might and right."

    The whole point of my comment would go away if a case of defamation were guaranteed to go to trial in a week. That is not time for discovery, you say. So be it: I should not make accusations, at least not against private parties, without adequate evidence. Justice delayed is justice denied, and the whole point of the US legal system is to deny justice through systematic delay while the lawyers collect their fees.

  26. Marconi Darwin says:

    Ken, why do you think that judges in the trial courts decide so wrongly on what should by now be crystal clear? Heck, prior restraint was in pop-culture (Walter Sobchak) at least a decade ago.

  27. Matthew Cline says:

    @JeffM:

    If you're talking about how the law should be, and the courts handed out prior restraint injunctions to prevent the plaintiff from being harmed in the time until the trial, then people who filed frivolous defamation suits would be able to shut up their opponents until the suit got thrown out. To balance that out, you'd have to not only enact a penalty for filing frivolous defamation suits, but make the penalty severe enough so that no one would look at it simply as a fee for temporarily shutting their opponent up. But you'd have to make sure that this penalty didn't discourage people with a legitimate grievance from filing their complaints.

  28. JeffM says:

    @ Mathew Cline

    I do not think that you have read me carefully.

    First, I'd be happy to dispense with prior restraint if trials were speedy. A trial on the merits guaranteed within a week of filing of a claim of defamation would be a perfectly adequate substitute. The defendant presumably already has the evidence for his or her assertions so a speedy trial places no burden on the defendant and the plaintiff controls the time of filing.

    Second, the American rule already is an invitation to file frivolous law suits. So is the reluctance of the courts to sanction frivolous law suits. If the problem is frivolous law suits, there are many things that could be done to make them very painful, jail for example. Moreover, in order to protect non-defamatory speech, sanctions for frivolous claims of defamation could be made far more severe than sanctions for other frivolous claims.

    Third, I think you are assuming what I have not said. I have not said that "prior restraint" should be automatic or broad. For example, we already hold public figures to a much higher standard with regard to claims of defamation: I have little problem with that and can see why the moral balance may strongly disfavor prior restraint with respect to public figures or even matters of legitimate public concern. Nor do I see any reason to restrain before trial assertions that are supported by some reasonable quantum of credible evidence. For example, in the current Kimberlin suits, the defendants should morally be able to avoid prior restraint by showing that there are reasonable grounds for viewing Kimberlin as a public figure, for their assertions about his wrongdoing, and for his being defamation proof.

    I am not arguing law. The law is hopelessly and incurably corrupt. If I am ever on a jury, I shall have no qualms whatsoever about ignoring the judge's instructions on the law if those instructions offend my sense of morality. I see absolutely no moral argument for permitting prolonged exposure of assertions about a private person that, if false, would be defamatory and that have no reasonable evidentiary support.

  29. Rob says:

    First, I'd be happy to dispense with prior restraint if trials were speedy. A trial on the merits guaranteed within a week of filing of a claim of defamation would be a perfectly adequate substitute. The defendant presumably already has the evidence for his or her assertions so a speedy trial places no burden on the defendant and the plaintiff controls the time of filing.

    So, what you want is a system that

    1) is physically impossible and/or financially ruinous (the reason for the long waits is partially because you'd have to have an absolutely massive justice system to deal with cases that quickly) and

    2) doesn't afford defendants enough time to organize a defense.

    Yeah, I think I'll pass.

  30. @ Daniel Neely: The upshot of the Majed Moughni situation is here: http://pubcit.typepad.com/clpblog/2013/03/judge-agrees-to-vacate-prior-restraint-against-critic-of-mcdonalds-settlement-for-now.html.

    The settlement was eventually approved. There were never any disciplinary proceedings against Moughni.

  31. Peter H says:

    JeffM,

    A trial within a week of filing a claim is insane.

    First, what if the defendant were simply away from home for a week (say, on vacation) at the time of the filing and could not be served?

    Second, many suits should not go to trial, but be dismissed as a matter of law. For example, if a plaintiff accuses a defendant of defamation because the defendant said that the plaintiff is "evil and a pox on humanity", that suit should never go to trial, because the statement is of pure opinion, and the plaintiff has failed to state a claim of defamation. There is no fact to be tried. But crafting a brief making that argument, getting that brief reviewed by a judge, having the plaintiff make an opposing brief, and ruling on both of those briefs cannot possibly be accomplished in a week, especially while at the same time all parties are preparing for imminent trial.

    Furthermore, witnesses can't be subpoenaed last minute like that, nor can documents be subpoenaed that quickly. Suppose my defense centers around an email which the plaintiff supposedly sent, but the plaintiff challenges the authenticity of the email and claims it's been fabricated. If I can subpoena the company that runs the email server to have them authenticate it, that would bolster my defense substantially, but if that company is tardy in replying, I won't have the evidence I need for such a trial.

  32. Carl says:

    Yeesh, I was expecting some slanderous satire, not just a picture of him in public. What a pathetic crybaby.

  33. JeffM says:

    Peter H

    What you mean is that it is not in the economic interest of lawyers to have cases resolved quickly. In your hypothetical, you just explained why the case is meritless in a single sentence, but writing a single sentence hardly maximizes billable hours.

    I am a reasonable person. The clock need not start ticking to trial until the defendant is served. And if a week is too brief, let's make it a month. What do you propose: three or four years to allow the lawyers to maximize their take?

    Let's consider your examples. The plaintiff complains of being called evil and a pox on humanity. You say that is not defamatory as a matter of law. Fine: then the suit is frivolous on its face: the lawyer who represents the plaintiff should be liable for the defendant's legal costs, and the plaintiff should be jailed for subjecting someone to the judicial process. (Admittedly, sensible rules like that would make pleasures such as watching the antics of Charles Carreon rare, but you can't have everything.) You are arguing on the assumption that the rules of civil procedure have some sort of moral standing; I assume on the contrary that they are a scam purposely designed to generate billable hours.

    Your other example involves Person A citing as evidence an email sent by Person B and Person B denying having sent it. The trial can be adjourned for the few days necessary to determine whether A or B has committed perjury. Civil case decided automatically against the perjurer, and the criminal case to begin.

  34. NS says:

    @JeffM

    And then what, you take the looser out behind the courthouse, and shoot them? Trials take time because all the evidence, and all the applicable law must be examined, and that doesn't happen in the blink of an eye.

    Let's take a hypothetical, you have asserted that the US system of law is "hopelessly and incurably corrupt." Let us say that you are sued for libel on the basis of this complaint. It is currently 9:12 EST, Friday, Feb. 7th, 2014 as of writing, you now have until 10:45 EST Friday, Feb. 14th to find documentary evidence to back this claim, craft a defense against this suit, which may either involve finding a lawyer, or researching the applicable case law yourself, getting the time off work, and getting any witnesses you may wish to have testify on your behalf lined up.
    Oh, and since the plaintiff, in your words "controls the time of filing" they have had the time the needed to carefully craft their suit such that it may not be at all clear to you what they are claiming is a false statement of fact, so you may be preparing to defend entirely the wrong part of your speech. The judge also only had a week to prep for this case, as well as who knows how many others, so he didn't really get a chance to have a close look at the complaint, and doesn't have a lot of sympathy for your confusion of it's wording. How do you think this is going to go for you?

    It is not the job of the law to be moral, that is a job for people. The laws purpose is to be fair. Though there are many flaws in the current system, it is meant to give both sides ample opportunity to represent themselves before final judgement is handed down. In your system, only the plaintiff has the opportunity to carefully consider their position, defendants, their counsel, and even the judges would be under almost unimaginable pressure, dealing with an impossible deadline. Only plaintiffs would have the ability to present well thought out arguments, well written (or, indeed, proofread) briefs, and have their evidence and witnesses well presented. I see no benefit to the cause of justice, morality, or fairness in setting up a system guaranteed to produce kangaroo courts of an order that makes the current system seem the height of enlightenment.

    It seems to me that you are making the same mistake that many make when dreaming up solutions to problems in complex systems; you look at the one or two areas that irritate you, and you pull them out, assuming that this will fix the entire problem. It sounds like you went through a lengthy battle in the courts recently, I guess that took up a lot of your time, and financial resources. That sucks. So you've dreamt up a system where trials are quick, and therefore cheap, but there is a cost to that. You talk about making an appeal to the supreme court, well, if we didn't allow appeals, you wouldn't have had to pay billable hours to prepare for that, would you? I wonder if that would be more to your liking?

  35. ZarroTsu says:

    @Marc

    Registrant Email: savvybroker@yahoo.com

    HAHAHA.

  36. JeffM says:

    @ NS

    I am fully aware of the appeals process having gone through it in two separate cases. The case that was most profitable for the lawyers had two sets of appeals, the first being an interlocutory appeal. That went to the court of appeals and then again to the court of appeals en banc and finally to SCOTUS before it was sent back to the court of first instance, where the verdicts admittedly did not get appealed to the Supremes. Justice delayed is justice denied. Nine years to get a verdict that a child could have rendered in a minute. Even SCOTUS ruled in our favor 7-2 on the merits, as had the court of first instance and the court of appeals en banc, so it needn't have been a very bright child.

    How long has Prenda Law been getting rich by using the legal system to extort money?

    How about Charles Carreon and his antics?

    My defense in your hypothetical. I admit I wrote the words. As for the so-called law, it is not a "legal person" and so cannot be defamed. Even if the "law" has standing to sue, my assertion is opinion and so privileged. As for the facts, the pages of Popehat, the decisions of the North Carolina bar in the case of Mike Nifong, etc. can give me more than enough to avoid any showing of malice or a reckless disregard of the truth. Shall we discuss administrative law and civil money penalties, a process some of my friends went through, where the judge works for the prosecutor who wrote the rules in the first place? The cost of defending so exceeds the fine that it makes no sense to do anything but pay it. The government has done nothing about Prenda Law because the government runs the same racket.

    I have no wish to argue with you because you and I fundamentally agree. The law and morality have nothing to do with each other.

  37. Pub Editor says:

    @ JeffM

    "Nine years to get a verdict that a child could have rendered in a minute. Even SCOTUS ruled in our favor 7-2 on the merits, as had the court of first instance and the court of appeals en banc, so it needn't have been a very bright child."

    Admittedly I know none of the details of your case; but the fact that the court of appeals chose to hear the case en banc (when they generally are not required to do so), and the fact that at least 4 SCOTUS justices chose to hear the case (unless it was a denial of cert with 2 dissents), and the fact that the SCOTUS decision was not unanimous — all of these points indicate that the decision was not one that "a child could have rendered in a minute."

    As NS says, "It sounds like you went through a lengthy battle in the courts recently, I guess that took up a lot of your time, and financial resources. That sucks." Agreed.

    You say that "The law and morality have nothing to do with each other," which is true enough — but the thrust of your earlier comments was proposing reforms to the law (such as allowing more open-handed use of prior restraints on speech, especially during litigation; or quicker trials) that would, in your view, make the law and the administration of law more moral.

    And cheaper.

  38. JeffM says:

    @ Pub Editor

    You are missing the point: all three courts ruled in our favor overwhelmingly, but when the Solicitor General asks the Supreme Court to hear a case, it is my understanding that certiorari is almost automatically granted. The whole doctrine of sovereign immunity is just a vehicle for the government to get away with things that no one else can. Ask a child whether one party to an executory contract can be excused while the other party is not (the issue in our case), and see whether the child can determine what is just. Had we lost that case, it would have bankrupted us, thrown hundreds out of work, and expanded the extent that the government can cheat without consequence. You may know little about the jurisprudence surrounding sovereign immunity and the "big" Tucker Act, but morality has nothing at all to do with it. It stems historically from the axiom that the king can do no wrong and goes on from there. (If I remember correctly, the general principle under federal law is that the government can void its contracts without penalty if the contracts are prohibited by later legislation of general applicability, but that principle is subject to several qualifications, which I no longer remember. The questions in our case were whether it was a "penalty" for the government to be denied the yet-to-be-realized benefits of its bargain under the void contract and whether the legislation was of general applicability. SCOTUS decided 7-2 that the legislation was not of general applicability and remanded and so did not opine on the issue of voiding our yet-to-be realized benefits but not our yet-to-be-performed obligations.)

    I started by making what was explicitly framed as a moral argument in favor of limited prior restraint, grounded on the maxim that justice delayed is justice denied. I was answered with lectures about my lack of understanding of the practicalities created by the rules of civil procedure, which in fact cause the delay giving rise to a moral problem, as well as your comments about the systematic corruption of the courts in favor of the "powerful and connected."

    As for my lack of understanding of the rules of civil procedure, it is true that I have only a casual understanding of what they are, but I have been on the receiving end of those rules and understand their effects all too well. I have actually had the misfortune of being involved in one way or another in three pieces of civil litigation, two of which went to trial, and a number of threatened pieces of litigation. I have been deposed, answered interrogatories, and been cross-examined quite a few times. So I have far more experience of being subjected to the judicial system than most of the unfortunates who are potentially subject to its Kafkaesque rituals and mind-bending expense.

    I find it interesting that no one bothered to respond to the purely moral argument. No one answered my hypothetical of whether long delayed money damages and a retraction might compensate for a marriage destroyed. Moreover you misunderstand my purpose. I have no hope that the law will be made more moral or even more affordable for people of ordinary means. None of the people who batten on the wealth of the populace through the legal system have any financial incentive to permit those things to happen.

    My purpose is to de-legitimize the whole corrupt system. Is sovereign immunity moral? The answer I will get is that it is the law. Yes it is, but that does not answer the moral question. Is it moral that tort law does not undo the damage done by defamation? The answer I will get is that the tort system is what the law provides. Yes it is, but that does not answer the moral question. Is it moral that people are subjected to frivolous and vexatious lawsuits with little recompense? Why then are so few sanctioned? How did Prenda Law escape for so long? Why was Charles Carreon not disbarred and prosecuted for attempted extortion?

    I shall let you have the last word if you wish because I greatly doubt that we can convince each other. To me, the civil law is an instrument of immorality designed to enrich a guild at the expense of the public weal. Thank you for being polite and thoughtful over what is a fundamental disagreement.

  39. Elizabeth McClellan (@popelizbet) says:

    @JeffM, do you have any evidence for your assertion that the RCP lead to delay in the legal process? Comparisons between pre-1934 federal court case lengths to post, with (or without for that matter) adjustment for resources relative to docket size, or similar statistics for states pre- and post-adoption? You admit that you know little about them but have seen their effects. In my experience people who do understand them, even those with serious critiques, near-universally agree that they still constitute an improvement over the pre-RCP era.

    You also seem to conflate corruption/inefficiency in the courts with corruption/inefficiency in the state bar. It's not the courts that can disbar a Carreon. Should it be? That's a separate argument.

    Can a suit compensate for a broken marriage? No. But the question itself is disingenuous. If it's actionable defamation, you are filing suit with the intention of proving the statement to be false. If your spouse doesn't believe the evidence of falsity you want a court to accept, or give it enough credence to work on the relationship and any trust issues arising without a court deciding the issue of defamation, I submit that the marriage had problems a speedier decision wouldn't have assuaged.

    Public policy has balanced what you frame as a moral issue against the moral issue of allowing people with more resources to enjoin speech they don't like, and made a decision you disagree with. That's fine; I disagree with public policy on a daily basis. But your stirring condemnation of the whole profession without exception or nuance comes across as the emotional reaction of someone burned in litigation, not a reasoned or consistent position.

    Then again, my experience informs my position. Thanks to the system and rules you so despise, today I was able to get a deadbeat ex husband relying on his ex wife's poverty to keep him from being called into account to not only stop trying to reduce his obligation but to agree to quickly and without further delay pay her the sum he had been claiming inability to pay, or go to jail – all to keep the judge from making a much more damning ruling due to his repeated and willful refusal to produce evidence and not doctor the evidence he did produce. Pre-RCP he might well have been allowed to withhold and even doctor evidence with little to no sanction – this doctoring was not obvious and took time for me to discover that I only had because the judge had a mechanism to force production in enough time for me to aggressively examine it. Had he been able to Matlock the proceedings by showing up at trial with evidence I hadn't been able to compel him to produce, I might not have caught it. As it was, the threat of very severe sanctions got a result for my client slightly better than we would likely have gotten if the judge had ruled before they caved and decided to cut their losses, since he agreed to a specific lien on some valuable assets that the court was unlikely to have ordered sua sponte, but found acceptable in exchange for waiving the most severe sanctions (while still imposing some so he didn't get off scott free for failing to abide by a court order.)

    You can't say I did it for the money, because I did it pro bono. And even though I'm living my life at the expense of the common weal, in your view, I support mandatory pro bono requirements starting in law school and continuing on into practice, with no option to buy out through donations. You've tarred a whole profession without even a nod to the systems already in place and proposed/developing to alleviate the problems you blame on the system's very existence. Again, this lack of nuance comes across as an absolutist position developed as a reaction to personal misfortune more than a reasoned critique. You aren't the first and won't be the last to develop such a view, and for that the system and the profession are partially at fault. But making sweeping assertions, some of which are provably incorrect, based on three lawsuits and a few high profile bad actors, to indict a fifty-state-plus-federal system is not necessarily defensible as a philosophical position.

  40. John Beaty says:

    Elizabeth, get back to us when sanctions for filing frivolous motions/lawsuits are sanctioned with teeth. Nothing I have seen or heard of indicates that this is even under consideration.

    The 50-state-plus-federal system as it is currently, acts in no small part to perpetuate itself.

  41. CJK Fossman says:

    @JeffM
    You wrote:

    I started by making what was explicitly framed as a moral argument in favor of limited prior restraint, ….. I was answered with lectures about my lack of understanding of the practicalities created by the rules of civil procedure,

    Apparently you forgot about this reply:

    Beyond that, I'm not sure that your "moral argument for prior restraint in certain limited situations" is nearly enough to overcome the practical arguments that exist against prior restraints on speech — e.g., chilling effect, the difficulty for a restrained person of knowing what speech is still OK, potential for abuse by the powerful and the connected, etc.

  42. CJK Fossman says:

    @John Beaty:

    What is your so-called point?

    And why are you addressing it to Elizabeth?

  43. Doc Railgun says:

    I think that few commenters have bothered to respond to the 'US legal system is corrupt and only exists to enrich lawyers' is because it is yet another libertarian delusion which they are only free to have because the US's government and laws are the way they are now.
    How many times have we all heard someone claim that such and such is broken and if only the powers that be would allow the complainer to step in and fix things said organization would be saved!
    I wonder if JeffM thinks Ken is lying when he has said over and over that there are rules in place to protect the fools that defend themselves in court rather than hiring an attorney?

    Finally, how rude is it to go to a blog frequented by lawyers and say that all they care about is enriching themselves? The implication then is that all attorneys are purposefully screwing over their clients to perpetuate this supposedly currupt system.

  44. Doc Railgun says:

    @CJK Fossman,

    It seems clear to me: she was arguing that the US legal system was not corrupt and evil and in at least did not purposefully drown the puppies of at least one citizen. That runs counter to their argument, so she must be wrong, lying, or part of the conspiracy they're warming us about. Possibly all three at once.

  45. CDH says:

    Interesting case. When I was a young lawyer, I'd signed onto the EFF's cooperating counsel list, and was contacted by fellow who put up a website complaining that his eye doctors had blinded him with poorly implemented corrective surgery. As it happens, the eye doctors sued him for his website, and sued his first lawyer for representing him. As a sane person, I turned them away because I was not in the market to become an additional defendant in search of my own lawyer. This sue the lawyer strategy is quite effective.

  46. John Beaty says:

    I answered Elizabeth because I was answering her argument that JeffM was being a meanie, and she knew that because she did something nice for someone.

    As for the rest, as Scott Greenberg likes to say, "You can beat the rap, but you can't beat the ride." The idea that someone can defame you, and you MIGHT be able to get some satisfaction after dumping 10s to 100's of thousands of dollars into a black hole, but you will never get your reputation back, is what JeffM is talking about.

    I am very, very grateful that at 2 of the three times it mattered, I was able to afford good counsel. They inform my life, protect my finances and are generally good folks. They also support the system that has required me personally to pay over $150,000 in legal fees to possibly win one case, as case that, if you looked at it with the eyes of a 4-year-old, you would agree that it is clear who is right and who is wrong. But my family is up against a very, very wealthy man, and HE AND HIS LAWYERS will continue to file motions that they have been enjoined from making, in courts they are prohibited from using, alleging facts that they have acknowledged are false, and not one judge has said anything but, "Shame on you." Not even, "Don't do that again." At this point he has had to put up over $4 million in bonds, and it is pocket change to him. But over $1M of that is my family's payments to lawyers. (L&R Exploration Ventures, Grynberg Petroleum Company should bring up the relevant cases if you are interested.)

    I can find you thousands upon thousands of similar cases. It's not a few, it a large number, and many others not doing anything to help fix the problem. If you read JeffM's original comment, he tries to say that if YOU are defamed, the defamer should have to put up or shut upon pain of sanctions. This is not unfair to the defendant, it's fair to the defamed! IF you don't like it, keep your mouth shut. Or be willing to take your commentary to a court very quickly and show them why you would win on the merits. Otherwise, here's a Preliminary Injunction, come back when you have more evidence. This would protect the the defamed person, without leaving the defamer without recourse if, in fact, what he was saying is true. Otherwise, you end up in Prenda territory. Most people simply cannot afford it, and so end up eating crap that they should not be forced to.

  47. JeffM says:

    @ elizabeth

    No. I have no evidence whatsoever that the rules of civil procedure as they exist now are more dilatory than the rules of civil procedure a century ago. That is utterly irrelevant to whether they are immorally dilatory currently. I have seen, multiple times, those rules stretch the process out for years on end. And I gave an example with which I am quite familiar because I was personally involved. Because you are a lawyer, I shall let you estimate what are the time and expense involved pre-trial in a case with an interlocutory appeal on points of law to a federal appeals court, reheard en banc, successfully appealed to the SCOTUS, and then remanded to the court of original jurisdiction without any change to the original decision about the law. And all of that before there even was a trial. If you believe that such a process can ever benefit the average citizen, then you are delusional. They say that the law provides a remedy for every wrong, which may even be true provided that you can afford the time and the expense and if the law acknowledges that it is a wrong.

    Moreover, many cases that I was personally involved in were settled regardless of the merits because the expense of litigating them was far in excess of the damages claimed. That was the whole basis of the Prenda Law scam. And if you say that Prenda Law was abusive, it continued for many years in many fora: the rules invite such abuse.

    I am entirely unconcerned with the difference between where the courts have jurisdiction and where the bar has jurisdiction so I am not conflating anything material. The courts and the bar are merely component parts of the judicial system. There is no fundamental moral reason that the courts must defer to the bar to police those who are officers of the court. (I might feel that the distinction was important if the US system distinguished between barristers who are officers of the court and solicitors who are not.) Nor is there any fundamental moral reason why violations of the code of professional responsibility are not classed as felonies requiring mandatory prison sentences.

    No, you are being disingenuous by rejecting my hypothetical. You are saying that if A claims to have thousands of photographs demonstrating that B cheated on spouse C and B cannot convince C that A is lying because A can delay for years failing to produce such photographs, the marriage was not valuable to either A or B and there is therefore no cognizable damage done. I have been married for 47 years, and I do not completely understand the dynamics of my own marriage, let alone the dynamics of anyone else's marriage. You must be very wise indeed if you understand what is sufficient cause for every divorce, where precisely the tipping point lies, and whether a specific marriage has value or not.

    Your public policy is just another name for law. You choose to frame your arguments in terms of the law as it exists. I see no reason why morality should be trumped by law even if it is called public policy, nor have you given one. It has been public policy for decades that people should be jailed for smoking marijuana; that does not persuade me that it is moral.

    Moreover, I have tried to be careful about what I have said about the profession and the members thereof. I do not assert that every practicing member of the profession is corrupt except in the sense that practicing members participate in and profit from a system that, in its entirety, is immoral and that practicing members mostly share and promulgate an ideology that justifies and sometimes even glorifies that system from which they profit.

    Nor does the fact that sometimes the judicial process reaches a morally defensible result say anything except that it is not universally immoral in its decisions. There is a middle ground called "some" between "all" and "none." My fundamental point, however, is that by the time a just result is reached, far too much time has elapsed. That objection would still obtain even if every result reached was morally just, and you have failed to prove that even a majority of the results reached are morally just, let alone timely. You simply assume it.

    As for the fact that you won a case pro bono, I have only your word for it that your win represented a moral victory (although I must admit that the circumstances as you have presented them make it seem that it was a moral victory). But notice, even according to your version of the facts, the lawyer who facilitated an attempted fraud on the court escaped scot free to do it again. Professional courtesy for the members of the guild who cannot abide even by the rules set by the guild itself? Quis custodes custodiet?

    What you have not said is what percentage of your cases you do pro bono, 50%, 75%, 90%. If it is 2%, then 98% pay the piper, do they not? I am not sure that I see much moral worth in doing well by one client out of 50 and doing well by yourself for the other 49.

  48. JeffM says:

    @ cjk fossman

    You said that I forgot about a reply. Actually I responded to it.

  49. JeffM says:

    Doc Railgun

    Since I have been talking about civil law, I was not aware that Ken had said that attorneys are provided gratis to plaintiffs and defendants in such cases. Perhaps I missed Ken's statement to that effect. Would you please point out to me where he said it?

    I was completely unaware that free representation is available in civil disputes. I admit that that truth vitiates much of my argument. I shall have to take advantage of it and sue my attorneys, who have systematically failed to disclose such an important fact to me for many years. I guess in their case they have been "purposefully screwing me over."

    As for being rude, I am sorry that you are so sensitive. I did not realize that lawyers were so delicate in their feelings. I have not found them to be over-sensitive to my feelings when being deposed or cross-examined.

  50. CJK Fossman says:

    @JeffM

    And later claimed it didn't happen.

  51. JeffM says:

    @CJK Fossman

    Where did I assert that? Please specify date and time.

  52. CJK Fossman says:

    @Jeff M

    Here's the time stamp: JeffM • Feb 7, 2014 @1:54 pm

    As already quoted, you wrote "I started by making what was explicitly framed as a moral argument in favor of limited prior restraint, ….. I was answered with lectures about my lack of understanding of the practicalities created by the rules of civil procedure…"

    If you want to claim that's an unfair reading, that can be your opinion.

  53. CJK Fossman says:

    @Jeff M

    And in the same post, you went on to say, "I find it interesting that no one bothered to respond to the purely moral argument. "

    So I guess my reading is fair, after all.

  54. JeffM says:

    @cjk fossman

    In your first post addressed at me (Feb. 8, 2:13 pm), you quoted something that I said in a post made Feb. 7, at 1:54 pm, and then you claimed that I "forgot" about addressing a "reply," which you also quoted. What you mis-characterized as a "reply" was not a reply at all because it was was posted Feb 6, at 11:34 am, more than 24 hours before my quote. Quite cleverly, you left out the time stamps for both quotations. Even more cleverly, you failed to mention that I did reply to the post from Feb. 6, at 11:34 am, with a response made Feb. 6, at 12:56 pm.

    I then pointed out to you (politely) that I had responded (Feb 8, 6:57 pm). You in turn then said (Feb 9, 10:50 am) that "later" I had "denied" having responded. I asked for a citation of this denial. You repeated the exact same quotation that you started with. That was a bit perplexing: how what I said could be a denial that I responded to a reply to what I said seems to violate temporal possibility. Presumably, however, you were conceding that I had not forgotten to reply to the post of Feb. 6, 11:34 am, as you had originally asserted, but that the quotation from Feb. 7, 1:54 pm either denied that I had posted a reply on Feb. 6, 12:56 or, more logically, essentially contradicted my earlier position.

    You have not in fact cited any post where I denied making some other post. But perhaps you meant to imply that somehow my post on the 7th was so inconsistent with my post on the 6th as to "deny" its substance. You quote nothing from my reply on the 6th, the one that you originally asserted I had forgotten to make, and you make good use of ellipses in quoting my post from the 7th. I give the quote now without your sly ellipses

    "I started by making what was explicitly framed as a moral argument in favor of limited prior restraint, (grounded on the maxim that justice delayed is justice denied). I was answered with lectures about my lack of understanding of the practicalities created by the rules of civil procedure, (which in fact cause the delay giving rise to a moral problem,) …"

    The parentheticals are what you omitted, and I do not see that they are inconsistent with what I had said the previous day. Nor do I see that the quotation, even truncated, is a denial of something I have said.

    As far as I am concerned, your style of argumentation, with its mis-characterization, selective quotation, and suppression of relevant facts, fully makes my case for the moral bankruptcy of the law.

  55. CJK Fossman says:

    @JeffM

    Okay, I admit it. Your prolixity defeated my attempts to wade through it, though I think you ascribe way too much cleverness to my actions.

    How my actions, of whatever kind, relate to the moral bankruptcy of the law escapes me.

    But let's just save some time. I think the cure you propose would be worse than the disease.

  56. John Beaty says:

    CJK, That's a brilliant way to avoid dealing with an argument. Have you thought of becoming a lawyer?

  57. CJK Fossman says:

    @John,

    Thank you, although you too much credit my frazzled neurons.

  58. Castaigne says:

    @JeffM: Just a question here from the peanut gallery. You keep talking about moral this and moral that and how this is moral and that is immoral…what morality are you subscribing to?

    Pat Robertson's?
    Pol Pot's?
    What's-their-faces over at Westboro Baptist?
    Radical Marxist feminism?
    Mitt Romney's?

    You see, morality is a tricky things because every single person in the world has a different one. While a lot of us may share some of the same morals, there's no guarantee there. What's moral for the goose is not necessarily moral to the gander.

    Like sovereign immunity. You think sovereign immunity is immoral. I think it's absolutely moral; it was a prime component of Catholicism during its height and the removal of soverign immunity from the Church (and its ensuing subjection to secular law) has allowed Protestant infiltrators to dismantle the Church from within. The concept of sovereign immunity is thus to me absolutely moral.

    So, two questions:
    1) What do you personally define as moral? Exhausting list, please.
    2) Who made you the arbiter of such? As in, why should we care about moral opinions? Why should they have the force of law?

  59. JeffM says:

    @ Castaigne

    First, I simply reject the premise of moral relativism. Pol Pot, for example, was not moral.

    Second, I acknowledge that my perception of what is moral may not be shared by others. That does not preclude me from living my life by what I view as moral or asserting my views on morality. Moreover, the fact that the moral views of some differ from mine does not make mine wrong. Only for moral relativists does voting determine morality.

    Third, I find your view that the Catholic Church should be free of the secular law completely repugnant. According to that view, pedophile priests are to be left for the Church to control: we have seen how well that has worked out. Nor have I consented that if the Church harms me, the Church should be immune. Now I am fully aware that Pius the 9th did indeed opine that it was error to say that "in the case of conflicting laws [between state and the Catholic Church], the civil law prevails." He also opined that it was error to say that "every man is free to embrace and profess that religion, which guided by the light of reason, he shall consider true." I do not find Pio Nono's opinions authoritative in any respect. If you believe that I as a non-Catholic must submit to the rulings of the Catholic Church and am not free to choose my religion, you are several hundred years out of step with what most Americans believe to be moral. Of course that common view may be wrong so I am interested in hearing your arguments in favor of benefit of clergy and against freedom of religion.

    Fourth, with respect to the sovereign immunity of the state, the general view (not mine alone) is that it has no moral basis. That explains why the Tucker Act, eliminating much of the federal government's immunity, is well over 100 years old. Here too, I am interested in hearing your moral argument about why the federal government should be immune from being answerable at law on the same terms as a citizen.

    Fifth, I certainly am under no obligation to provide you with an exhaustive list of moral precepts. I do say, however, that I took some care to state the moral precepts that underlie my moral criticisms of American civil law. The most important is that justice delayed is justice denied. The other is that a legal system so expensive that the average citizen, whether fault free or not, is likely to be impoverished if caught up in it is immoral because it lies when it promises "justice to all." Moreover, the argument that the American legal system is by and large moral comes almost exclusively from those who profit from it and are certainly not disinterested.

    Finally, as to your question about why morality should have the force of law, it seems somewhat incongruous to appear to concede that morality does not have the force of law and yet complain of the law being called immoral. In fact, if morality is relative as you seem to imply with your comment about Pol Pot, it is simply impossible for the law to be moral because morality lies only in the eye of the beholder.