Last July I described how internet-famous troll Todd Kincannon had filed a federal lawsuit against South Carolina state bar officials, claiming that they were infringing upon his First Amendment rights by threatening him with attorney discipline based on his speech. There have been developments! Sort of.
Kincannon doggedly employs his modest talents to achieve notoriety, like the kid in Rudy if his goal had been to be an third-string insult comic instead of a Notre Dame football player. His litigation strategy has been less persistent. As I argued before, though Kincannon is a lawyer, his initial complaint looked less like a professional federal pleading and more like a LiveJournal post or possibly some sort of law-themed emoticon. Kincannon claimed, both in public and in unsolicited correspondence to me, that he had thrown the complaint together at the last minute to beat the statute of limitations, and would file an amended "more conventional pleading."
That was July 2014, six months ago.
It's not uncommon to file a complaint to beat the opposition to the courthouse, and then amend it to correct any errors or omissions. Most plaintiffs will amend quickly, before the other side files a response, so they don't need the court's permission. Kincannon did not, despite saying that he would. Months passed. Eventually the federal court, of its own accord, issued an order to show cause. The Court pointed out that (1) the summons it had issued had expired after 120 days when Kincannon didn't serve them on the defendants, and (2) the rules require the plaintiff to, as the Federal Rules of Civil Procedure put it, pull his thumb out of his ass.
Ignoring an order to show cause from a federal court is an atypical strategy, but Kincannon does not see himself as someone bound by convention. He didn't respond to the OSC. So a couple of days ago the Magistrate Judge recommended that the court dismiss Kincannon's suit for failure to prosecute. The assigned District Judge will likely follow that recommendation. The dismissal will be without prejudice, meaning that Kincannon could conceivably refile it. I, for one, would not want to return to a federal judge with a complaint previously dismissed for failure to prosecute. I would not expect good fortune.
It is possible, I suppose, that Kincannon has reached some sort of settlement with the defendants. I've never seen defendants accept a settlement that contemplated letting a case die like a pet rat forgotten in the garage, but it's possible. It's also possible that this is part of some shrewd legal strategy on Kincannon's part. Perhaps he has them now exactly where he wants them.
But I feel bound to repeat the question that skeptics asked from the start: was this all some sort of publicity stunt by Kincannon? Was his purpose to excuse his failure to deliver a book — called Racking-Fracking-Argle-Bargle-Libruls or something — though people had prepaid for it? Did he want to generate buzz around his book? Did he want to fund-raise? Did he just want attention? Given the history of state bars meddling in censorship, I was prepared to accept the proposition that there might be some substance to Kincannon's suit. But now — well. Perhaps other more sympathetic followers of the story will offer a plausible explanation. Or maybe Kincannon will explain.
It would be regrettable if Kincannon, through a crass and clumsy tactic, has diminished the credibility of the fight against bar association censorship.
Last 5 posts by Ken White
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
- The Power To Generate Crimes Rather Than Merely Investigate Them - June 19th, 2017
- Free Speech, The Goose, And The Gander - June 17th, 2017
- Free Speech Tropes In The LA Times - June 8th, 2017
- I write letters - June 1st, 2017