Okay. So it’s not really a news flash – it’s kinda the bread and butter of the L.A. Times to print whiney panic pieces. However, this story hit upon our sweet spot. Reporter David G. Savage writes to warn us all about the dangers of criticizing others on teh interwebs. The advice to bloggers and emailers: “think twice before sending a message.”
With all due respect to the attorneys quoted in the piece, the story is a load of shit. It paints the picture that you can and will be sued for posting anything negative about anyone or anything. We understand that there is only so much space available for a story, but this one was so halfway done, that we question the article’s intent. Newspapers are losing their grip on the dissemination of information, as blogs and citizen journalists deliver information to the masses. It almost seems like the L.A. Times was trying to scare us all from encroaching on their turf – and that it must have consciously failed to complete the story.
The article quotes our friend Professor Eric Goldman, of Santa Clara University, as saying that someone can be sued for saying “My dentist stinks.” Conveniently, this is the end of the quote – convenient because it supports the message behind the piece, i.e., don’t be mean to people and hurt their feelings by writing unkind things about them. We’re sure that, if the entirety of Professor Goldman’s input were published, he would have gone on to state, unequivocally, that “My dentist stinks” would never carry the day in court. In fact, in California, bringing such a frivolous suit would leave the plaintiff paying everyone’s attorneys’ fees, after getting hit with a special motion to strike pursuant to the state’s anti-SLAPP statute. We’ve never seen Goldman shill for the “fraidy cat” contingent, and we bet our entire publication’s credibility that he didn’t do so this time.
Let’s break it down LS style, in case someone out there is now afraid to complain about how much her dentist stinks on yelp after reading the article. There are two ways the statement “My dentist stinks” can be interpreted:
First is figuratively, i.e., “stinks” being an expression of opinion about the quality of service provided by the speaker’s dentist. Such statements are not actionable. Period. This is an expression of an opinion. People should not be afraid to express their opinions for fear of being sued. Such a result would be a horrible manipulation of the justice system in the United States and an assault on the free speech principles that the Framers tried to make inviolate.
Although it’s absurd, let’s look for a moment at the literal meaning as well, i.e., “stinks” being a description of the odor that the speaker’s dentist has. Again, at bottom, this is an expression of opinion. The whole idea of which scents are good and which ones are bad is wholly subjective. Stating that you think a particular person or thing “stinks” is merely a classification of your individual preference for another odor over the one associated with the described person or thing. So, even using the literal meaning, the statement “My dentist stinks” can only be interpreted as a statement of opinion. Accordingly, such a statement can never be used to support a legitimate lawsuit.
Even suggesting that the speaker’s dentist could sue is a dangerous thing. Let’s assume that said dentist has a larger war chest than the speaker (probably true – if the speaker had any real funds, he would have gone to a better dentist in the first place). Mr. Shitty Dentist will bring his lawsuit, because he read in the L.A. Times that it was a viable claim (far be it from his bottom-feeding attorney to try to talk him out of it), and the poor complaining patient is forced to hire his own attorney to defend his right to express his opinion. Chances are, our defendant can’t really afford to litigate the thing to completion. So what’s left? Consent judgment. Retraction. What do you think the next patient who gets a bad filling will do? Are you getting the idea that anti-SLAPP statutes are becoming more and more important? Unfortunately, The L.A. Times fails to mention that a federal anti-SLAPP bill has been introduced in the House, or that it’s picking up sponsors, but really could use a stronger push from the public.
In case you’re not familiar, a Strategic Lawsuit Against Public Participation or “SLAPP” suit is the name given to the frivolous lawsuit brought by our dentist, not for the purpose of vindicating any real right, but instead designed to silence his critics and make an example out of them. The unfortunate reality is, without some mechanism to prevent it, a moneyed plaintiff can afford to hire an ethically challenged attorney to bury the defendant in paperwork and discovery requests long before the merits of his case are decided. As more and more people are given a voice on the Internet to express their opinion, the SLAPP suit is becoming a favorite tactic of companies and wealthy individuals who want to privatize censorship. An anti-SLAPP statute is designed to prevent this abuse of the legal system, giving a financially disadvantaged SLAPP defendant a fighting chance of quickly dismissing the suit and recovering his attorneys’ fees incurred in so doing.
Bottom Line: the free exchange of ideas should not be prevented because a couple of people *might* get their feelings hurt. If people end up keeping their complaints to themselves based on a fear that there is a lawsuit lurking in response to every email or discussion board rant, the marketplace of ideas will be forever diminished. Unfortunately, for every hundred people who read the L.A. Times’ article, ten or twelve may keep their criticisms to themselves and thereby reinforce the power of the politeness police.
This post here is designed to undo as much of that as possible, and to do what the L.A. Times’ article should have – to alert readers to the fact that yes, there is a lawsuit-happy mob out there. There are ethically challenged lawyers who are all too pleased to earn fees by filing SLAPP suits. However, there are ways that the public can protect itself without simply self-administering a ball gag.
If you have something to say, and you are afraid of being sued, ask a lawyer for a pre-publication review of your comments. Many lawyers provide this service cheaply, or sometimes free of charge.
Press for anti-SLAPP legislation. First Amendment Bad Ass Congressman Steve Cohen (D-TN) has introduced a federal version of California’s successful anti-SLAPP statute. Contact your representative and let them know you think this is a good idea.