Sunday, August 15, 2004

 

Sacred Cows Make The Best Hamburger

"The first thing we do, let's kill all the lawyers."
- William Shakespeare (Henry VI)


One of the perils of an American public education is that one is generally exposed to generalizations and platitudes as opposed to material that is truthful, timeless, interesting and relevant. The average geography textbook has feel-good text along the lines of "There are many good roads in Framistan", whereupon hitting the real adult world one suddenly finds out that Framistan is a junta-ruled pesthole specializing in exporting bad seeds to the First World and manipulating futures prices on their natural resources to the detriment of the world economy. The average civics curriculum is painfully out of touch with the realities of government operations. I well remember one class on the government of New York City that had us focusing for an interminable amount of time on the Department of Markets, no, not the financial markets, but the bureaucracy that regulated the wholesale and retail food markets. The slight problem with this class was that when I got a copy of the then-current city charter, the Department of Markets had been abolished about two revisions before the current charter, and its' functions subsumed into various other agencies. When I brought this up, the teacher politely smacked me down and told me to get with the program (In elementary school in the late 60s, we had textbooks that were so old they referred to plans for a tunnel between Brooklyn and Staten Island, five years after the Verrazano Bridge had opened; when I pointed out this minor fact, the teacher insisted that I write my homework according to the textbook's version of reality).

It's somewhat reminiscent of that scene in "Back To School" where the economics professor is giving an example of widget production, and Rodney Dangerfield gets up and delivers a hilarious lecture on how to do things in the real world. In higher education, of course, the disconnect between academic reality and the real world is quite well known as Messrs. Merton and Scholes learned the hard way during that little party at Long Term Capital Management. However, one thing seems to be a total sacred cow at all levels of academia, and that is law and lawyers. Obviously there is a need for both, but when things like SLAPP suits happen, someone has to start asking questions as to where the checks and balances really are in this world.

SLAPP stands for Strategic Legal Action against Public Participation. It's basically a technique used by lawyers to shut people up when they criticize some sacred cow (usually a corporation or some servant of the public) either as a whistleblower or merely voicing their opinion. If these suits do receive face time in front of a judge, they are likely to be thrown out as frivolous, however, the plaintiffs in these affairs tend to count on the fact that they have a lot of resources and can pay lawyers beaucoup bucks to keep the thing going long enough to run up a significant bill for the defendant, who will hopefully cave in long before it gets to a judge (remember that the mere act of filing a lawsuit doesn't require anything beyond the ability to get the paperwork out and pay the fees, hence the old joke about suing the Pope for being Catholic. Ultimately such suits won't prevail, but the defense effort and cost is so onerous that it is impractical to fight). The logic used by the plaintiffs is that the defendants are somehow impairing their ability to do business or defaming them, in the same logical sense of freedom of speech not being equivalent to license (in other words, no yelling "Fire" in a crowded theater; I once had the misfortune of being caught in a nightclub on Staten Island back around 1980 that was quite overcrowded, and there was a severe bottleneck at the exit as the clubgoers tried to exit for a breather in between band sets. Some idiot decided to yell "Fire" because he thought it was funny. The crush getting out was decidedly unfunny, there were a lot of scrapes and bruises).

Of course, any sensible person or entity when confronted with a legal action will try to Make It Go Away very quickly, and as any person who has been on jury duty recently will tell you, the mere presence of a jury pool, much less the empaneling of a jury is enough to make the parties get back to the negotiating table such that very few cases actually do get to trial. However, the problem here is that sometimes SLAPP suits (or the threat of them) are coming from parties such as spammers and other dubious businesses trying to preserve whatever veneer of respectability they might have. Usually the white hats are volunteers or other small fry with a complaint, and thus the lack of resources to defend against this sort of thing are especially acute. Not that every respondent in this sort of thing is totally on the side of the angels, but a cursory look at some of the incidents I've seen shows that there may be a serious question as to whether the First Amendment is being infringed. In one case, someone was criticized on a public BBS. (Obviously, since I'm a scared little rabbit I won't recount the specifics). The criticism was a sort of ongoing needling thing, a bit biting at times, but something that a public figure (albeit minor, but the complainant makes plenty of information about himself public on the web) would be subject to. (An interesting question here is what level of biting criticism actually crosses the line into actionable. I would suppose that for example, suggesting that someone co-hosted a Martin Bormann telethon would be close to the line, but would not cross it unless the allegedy aggrieved was in the tzitzit business).

The complainant had his attorneys threaten a SLAPP suit, and the webmaster is now forced to manually delete every reference ever made on the board to that person, or face an expensive defense. For some reason this reminds me of the apocryphal story about the producers of "The Godfather" agreeing not to use the word "Mafia", and another Hollywood type saying that was like asking the producers of "Patton" not to use the word "Nazi".

There are certain companies that are predisposed to threatening or filing this sort of action, particularly in the case of former employees, contractors or other parties who've had dealings with them and have been in some manner been disillusioned with those companies. There isn't an issue with NDAs or non-competes in these cases, which would be an entirely different legal issue, these are people who are nominally exercising their First Amendment rights. If there is proprietary, defamatory or other injurious material in the respondent's public commentary, surely an injunction can be sought such that there is a timely independent judicial review of whether there merit to the complaint, as opposed to a mere intimidation effort.


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