It's time for the Popehat Signal, the feature in which we seek pro bono help for an online writer threatened with frivolous and censorious litigation.
Thundersplace.org is a forum devoted to discussing penis enhancement of various sorts. There's a forum for everything on the internet, you know.
Last April a user wrote a post describing a harrowing experience with surgical penis enhancement. How harrowing? I read it and I cringed so much my cringer broke. I am completely without cringe now. I can watch primary debates without any change to my affect.
The anonymous user claimed to be a patient of Dr. James Elist, a Beverly Hills urologist. Suffice it to say that this was not a positive consumer review.
This, my friends, is America. So Dr. Elist hired an attorney, Elliott Benjamin of Parker Mills LLP in Los Angeles. Mr. Benjamin sent a legal threat to both thundersplace.org and, incredibly, Cloudflare. Mr. Benjamin asserts that thunderspace.org has an obligation to verify the accuracy of statements by forum users:
You have permitted these inaccurate and negative postings to appear on the Website without seeking to verify the veracity of their contents.
Mr. Benjamin demands the usual suspects:
Consequently, on behalf of our client, we hereby demand that (1) you immediately remove the negative content posted by your member "txhog", together with all related threads and postings, from the Website, (2) thundersplace.org immediately cease and desist from any further derogatory postings of any kind about Dr. Elist, (3) you immediately provide us with the name and contact information of the user posting such disparaging comments, and (4) you post an announcement in a conspicuous place on the Website acknowledging that the defamatory statements have been removed due to your inability to verify their accuracy. Failure to comply with the foregoing demands will leave our client with no alternative but to take action and seek all legal remedies available to him.
Mr. Benjamin's letter on behalf of Dr. Elist bears several prominent signs of aggressive bogosity. First, the letter utterly fails to specify what statements of fact in the forum post are false. You know my mantra: vagueness in defamation threats is a hallmark of meritless thuggery.
Second, and even more importantly, Mr. Benjamin's bumptious threat ignores the law governing the situation. His premise — that the forum is obligated to police user comments and verify their accuracy — is absolutely wrong as a matter of law. Under Section 230 of the Communications Decency Act of 1996, thundersplace.org is absolutely not liable for defamation for things that its forum users write; its owners are only liable for things they write themselves. This is not a close call. Nor is it an obscure or difficult point of law; it is the single most relevant, obvious, and dispositive legal issue concerning Mr. Benjamin's threat.
As always, such a threat raises questions. Did Mr. Benjamin send a legal threat whilst completely ignorant of the law governing it? Or did he know the law and just hope that he could dishonestly bully someone who didn't? For that matter, did Mr. Benjamin advise his client Dr. Elist of the Streisand Effect — the principle of internet culture under which his threat (all the more so because of its transparently feckless nature) would naturally draw several orders of magnitude more eyes to the anonymous complaint on the forum? I wrote Mr. Benjamin to ask, but received no response.
Regrettably, our broken legal system allows litigants and lawyers to inflict massive expense, stress, and violations of rights upon people whether they act from ignorance or mere thuggery or both. California has a strong anti-SLAPP statute, and thundersplace.org stands an excellent chance of prevailing on an anti-SLAPP motion and recovering attorney fees if Dr. Elist and Mr. Benjamin proceed on their meritless theory. But thundersplace.org — which does not make its owners much money — can't afford to hire a California attorney.
Can you help? Can you look past the somewhat snigger-worthy circumstances and assist an American in vindicating their constitutional and statutory rights? Our system is broken, and our rights are therefore too often merely hypothetical. But every time someone like you stands up for someone who can't afford legal assistance, our rights become a little less hypothetical and a little more actual. Every time a lawyer agrees to stand up against a patently frivolous claim like this one, it becomes a little harder to bully people through feckless threats. Every time a lawyer steps in and a threatener slinks away, a few more threats are deterred. The robustness of our freedom doesn't just depend on the big cases, the Cohen v. California or Brandenburg v. Ohio. It depends upon lawyers willing to contribute a few hours to making rights a reality. Will you help? Please consider it.
Updated With Awesomeness: A response already! David Casey is a repeat signal-responder — a few years ago he was instrumental to the resolution of a bogus dental threat. Now David Casey and his partner Brian Lynch have stepped up to offer assistance to the forum targeted here. They deserve thanks. You may not be the target of this threat, but when lawyers like David and Brian work pro bono, they are defending everyone's rights. Thanks!
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