“About half the practice of a decent lawyer is telling his clients that they are damned fools and should stop.”
—Elihu Root, Lawyer, Statesman, Nobel Laureate
I sometimes like to imagine that I am a simple country lawyer. With an office. Maybe a couple of law partners to spread out the workload. A nice general practice. Imagine if you will . . .
A man walks into the office. He is medium height, athletic build. A receding hairline. “Mr. Cheethum?” he asks.
“No,” I reply. “I’m Howe. Cheethum and Dewey are my law partners. They are out of town for the Zen of Litigation seminar in Sedona. How can I help you?”
The man pauses at the doorway. “I was really hoping to speak to Mr. Cheethum. He comes highly recommended.”
I pick up my pipe and fill it with tobacco, then eye my visitor. “Like I said,” I smile, “Cheethum and Dewey are my law partners. We all chip in together around here. Why don’t you sit down and tell me why you wanted to see Mr. Cheethum?”
The man sits down and pulls out a file. “I am desirous of suing a blogger who has defamed me. I believe he teaches at a University not 20 miles distant.” I light my pipe and nod sagely. “Well,” I croon, “we can certainly help you with that. Pray tell, what did this blogger say that you believe constituted defamation?”
The man seems to have trouble saying it. He tries to speak, but it is as if a great force is making him bite his tongue. I stare at him for well over a minute while he goes through the mental gymnastics of getting himself to speak. Finally, he softly mutters “rape.”
I take a drag on my pipe and give him my best flinty stare. I say nothing. Finally, he speaks again. “Rape. Rape, I say! He has accused me of rape!”
I start taking notes. “Did you, in fact, rape this blogger?” I ask.
The man gives me a confused stare. “What?” he asks.
“Did you rape this blogger? Is what this blogger says true? If it is true, we don’t have a case. If it is even close to true, we don’t have a case. So, I ask you once again, did you rape this blogger?”
The man shakes his head. “You don’t understand. He is not claiming that I raped him. He says I raped some woman. An unnamed woman. At a conference. Years ago. And this woman purportedly contacted him and said that I raped her, and he published her story, as if it were the truth. And, before you ask, no, I did not rape her. Assuming there even is a ‘her.’ Assuming he did not just make this whole story up.” He hands me the file, which has the offending blog post printed out. I review it, and hand it back to him.
“Okay,” I reply. “Let’s start at the beginning. If we are going to sue someone, it has to be worth it. Does this blogger have any money? Without money at the end of the rainbow, there is no reason to sue.”
My putative client ponders the question. “Yes. He has some money. He is an assistant professor, and I think he makes about $65k per year. He has a book coming out. He has a house. He owns, or part owns, this website with a number of bloggers. Can we sue him?
“Let’s think this through. Based on this, I think that you very well may qualify as a public figure. That means he will argue that the 1964 United States Supreme Court case of New York Times v. Sullivan provides him a First Amendment defense. In other words, he will say that we cannot prevail in our lawsuit unless we prove that he had actual malice, i.e. that he either knew what he said was false or exercised reckless disregard to whether it was true or not. So, let’s assume the worst case scenario, and that case applies. That’s a tough nut to crack. But we can still sue him, and take his deposition, and maybe he was reckless. At the very least, we can force him to tell us who this anonymous woman is.”
The man looks dubious. “Really? We can force him to do that?”
I smile and nod. “Absolutely. We will send him interrogatories asking for the name. We will demand he turn over his emails, and get her emails. We can subpoena his email provider and web host to get their records, and the same with his phone company. If none of that works, we will take his deposition and I, or Cheethum, will sweat it out of him. We will find out.”
He still looks dubious. “Isn’t there a shield law in this state?”
I laugh out loud and pull out a volume from the Minnesota Statutes. “Sure we have a shield law. But we also have an exception. And here it is:
Subdivision 1. Disclosure prohibition; applicability. The prohibition of disclosure
provided in section 595.023 shall not apply in any defamation action where the person seeking disclosure can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice.
Subd. 2. Disclosure conditions. Notwithstanding the provisions of subdivision 1, the identity of the source of information shall not be ordered disclosed unless the following conditions are met:
(a) that there is probable cause to believe that the source has information clearly relevant to the issue of defamation;
(b) that the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights.’
So, if he claims that Sullivan applies, he has therefore injected the issue of actual malice into the equation, and we get the name. If he doesn’t, then the only thing we have to prove is that the statement was false, and guess what, you get to testify that it was the biggest damned lie in US history, and he has no way of proving that it wasn’t false, because he can’t use this person’s hearsay statements at trial, especially if this person is anonymous. So the only thing that the jury hears is you saying that you were defamed. And he is there holding only his proverbial in his hands. So, we either get the name or we win at trial, a slam dunk win.”
I can see that he is warming to me. “What was your name again?” he asks.
“Howe,” I reply.
“Well, Mr. Howe,” he asks, “what about Barrett v. Rosenthal? Someone told me that the blogger will rely upon that case as a defense. And that it is an iron clad defense to defamation.”
I shake my head in a most dismissive fashion. “That is a California case, and is not binding here. Second, it does not apply to this blogger. You see, Barrett dealt with the distributor doctrine. Let’s say that you run an internet forum, and Johnnie Trollmunster posts a defamatory post on your forum. You are a distributor, and under Barrett, you have protection. It is like being a newsstand. If you sell an issue of the New York Times that happens to contain a defamatory article, you can’t be sued. But, the New York times can be sued, even under Barrett. This blogger is the actual publisher of the information, not a ‘distributor’ as that term is used in Barrett. He wrote the article. He quoted the anonymous source. He’s like the New York Times and the reporter all rolled into one. If he defamed you under the law of this state, he can be sued, period.”
My new client nods his head. “Let’s sue him!” he cries.
I pull out some pre-printed fee agreement forms and a pen. “First,” I say, “there is the small matter of my fee . . . ”
This, of course, is a total work of fiction. Any resemblance to any person, living or dead, is purely coincidental.