Remember Joseph Rakofsky?
He's the guy — technically a lawyer — who chose to represent a man accused of murder at trial even though he had never tried a case before. This led inevitably to a mistrial and to a judicial observation that Rakofsky's advocacy was below the standard one would expect of a defense lawyer at a murder trial. News organizations and bloggers commented unfavorably. Stung by criticism, Rakofsky sued a wide swath of media outlets and internet writers, asserting feckless theories of defamation. Some stood defiant; a cowardly few caved.
So, remember him? Well, anyway, he's back.
Eric Turkewitz reports that reports that Rakofsky — now representing himself — has filed a gigantic motion seeking a dog's breakfast of court orders. Rakofsky wants to amend his complaint to add 14 defendants, he wants an order deeming his complaint adequate in order to head off motions to dismiss (no, really), he wants his former lawyer sanctioned, and he may want a pony and a pat on the head. The motion is a freakish mess, of a quality I would normally associate with mid-range pro se work — not as bad as a homeless psychotic pro se, but not as good as a reasonably articulate and experienced pro se, like a tax protester or something.
Several people have noted that Rakofsky seeks to add a cause of action for "internet mobbing." Now, you might say that there is no such cause of action, whether under New York law or anywhere else. But Rakofsky is more clever than you. Rakofsky might take the lives of helpless men into his hands when he is manifestly not qualified to do so, but Rakofsky has a certain low craftiness. He knows that the din of insipid anti-bullying rhetoric is growing steadily louder, and that some people are willing to turn their concerns about bullied children into broad and unprincipled doctrines that allow anyone to lash out at critics. Rakofsky is encouraged in this mindset by the leaders of his state. New York state senators are advocating "cyberbullying" legislation, and are premising it on the assertion that we need to revisit our dusty old notions of freedom of speech and come around to the progressive viewpoint that expression is a privilege, not a right:
And yet, proponents of a more refined First Amendment argue that this freedom should be treated not as a right but as a privilege – a special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated. British Philosopher John Stuart Mill long argued that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm from others.”76 His “harm principle” was articulated in an analogy by Oliver Wendell Holmes, Jr. (1841-1935), and still holds true today: “The right to swing my fist ends where the other man’s nose begins,” or, a person’s right to free speech ends when it severely infringes upon the safety and well-being of another.
In the case of cyberbullying, the perceived protections of free speech are exactly what enable harmful speech and cruel behavior on the Internet. It is the notion that people can post anything they want, regardless of the harm it might cause another person that has perpetuated, if not created, this cyberbullying culture.
You might say that this is mere jibber-jabber by a politician, not anything supported by law. But jibber-jabber can be terribly powerful and seductive when brought to bear on behalf of the nation's children, whether temporal or emotional. Why, even professionals nominally devoted to the vigorous defense of constitutional rights can be seduced right into insipid advocacy of hysterical and unprincipled tort remedies.
So: don't blame Rakofsky. He's just got his finger on the pulse. But a dilemma remains: what is the nature of this newly invented tort of internet mobbing? What are its elements? Well, with the encouragement and help of Scott Greenfield, I think I have come up with a set of elements worthy of a jury instruction:
INTERNET MOBBING: ESSENTIAL FACTUAL ELEMENTS
[Plaintiff] asserts that [Defendants] have committed the tort of internet mobbing and hurt [Plaintiff's] feelings really quite badly. The law recognizes that this is a shame. To establish that [Defendants] have committed the tort of internet mobbing, [Plaintiff] must prove the following:
1. That [Defendant] joined a group of three or more persons [including co-bloggers, commenters, and sock puppets];
2. That some member of the group made some use of the internet;
3. That the use of the internet including writing something about [Plaintiff];
4. That something could be described in one or more of the following ways:
d. Uncomfortably true,
e. Emotionally distressing,
f. Bad for business and/or branding or Google rank,
g. Just not kind;
5. That deep and progressive thinkers believe that the right of [Plaintiff] to be free of any such comment outweighs the right of [Defendant] to speak;
6. That at least one other member of the group committed an overt act endorsing or acknowledging the writing through a link, tweet, cross-post, thumbs up, +1, or lol;
7. That [Plaintiff] is, in at least one person's view, special, and thus deserving of the protection of the legal system from criticism or dissent.
Glad to be of help. There's a whole internet of butthurt potential clients out there. Better get cracking.
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