Monday, June 19, 2006

The Unintended Consequences Of Claiming You've Been Defamed

With the rapid rise of the blogosphere, it seems almost a daily occurrence that someone sends a letter to a blogsite asserting they've been defamed by either a post by the blog itself or a visitor posting a comment on the blog. It seems to me, though, that taking the step of sending a letter claiming you've been defamed in the blogosphere often has the complete opposite effect you intended, which is to clear your good name.

A South Bend group, which calls itself "No Special Rights", held a press conference last month to accuse Advance Indiana of "shockingly unkind defamatory comments" for characterizing their campaign to stop a gay rights ordinance as "bigoted" and the group as a "Christian hate group." AI, in response, apologized for criticsm directed at one individual but stood by the characterization of the No Special Rights organization. The coverage of the incident actually had the effect of driving traffic to this site where people could read and learn more about just how bigoted the group's message was towards gays and lesbians.

During the May primary, Democratic congressional candidate Kris Kiser threatened to sue Bil Browning and his blog, Bilerico, if he did not remove a post by a contributor, Marla Stevens, in which she leveled scandalous charges against Kiser and his partner. AI wrote of the incident:

A post on on Thursday by gay rights activist Marla Stevens has caused quite a stir in Kiser's campaign. Steven's post was replete with scandalous and damning accusations against Kiser and Johnson. Bil Browning, editor of, removed the post under the threat of a lawsuit from the Kiser campaign.

While Bilerico removed the offending post, the coverage and attention which ensued from Kiser's claim of being defamed resulted in far more people learning about the allegations Stevens leveled in her post, true or untrue, than had Kiser simply ignored it altogether. Other blog sites, such as A Commonplace Book, re-posted Steven's post on their sites and dared Kiser to sue them.

Today, Taking Down Words experienced its first threat of a lawsuit for defamation by Indianapolis attorney Steve Laudig in response to a commenter's post on TDW's site recently. TDW graciously agreed to remove the offending commenter's post, but not without posting this for the benefit of its readers:

Wow. We've really made it. Someone threatened to sue TDW over the weekend. Not surprisingly, it was over a comment made on one of the Lawrence threads. Given that tidbit, we bet you can guess from whence the threat came.

Here's the thing. It's the policy of the blogmistress to leave this site open for comments. Every once in a blue moon, she'll run across something unseemly. Or someone will write to point out an overly insulting or offensive comment. Typically, such missives are removed. It's happened fewer than a dozen times, but we're not a wholly insensitive crew.

However, asking nicely is key. TDW ain't a bad gal, nor does she particularly want the blog to get so over-the-top that no one reads it. (Which is why more than one Lawrence thread has been shut down.)

But if you threaten to sue straight out of the gate, we've got little choice but to let folks know about it. After all, it's the people who posted here who would most likely be open to liability, not the blog itself. Accordingly, we'll post the note received via TDW-mail over the weekend. For the record, the offending comment, though it was actually phrased as a question, not a statement, has been removed. And also for the record, TDW ain't a great law student, but she did pretty well in First Amendment law. So this made her giggle. Always remember, kids, that truth is an absolute defense to defamation.

TDW then proceeds to print in full the letter it received from Laudig. In the letter Laudig accuses a "former son-in-law" of posting "false and defamatory" information about him. AI omits the name of the former son-in-law because Laudig, by his own admission, can't say for sure it's him, even though he names him in the letter. He assures us that it is defamation "per se" because "it falsely attributes implies (sic) improper activity and directly accuses me of criminal activity." Laudig assured TDW that "if this posting is immediately removed I will not seek legal redress against you or the owner of the site since you will have done what you can to mitigate any damages I may suffer." Laudig signed the letter "Yours in the First Amendment."

Now I probably read TDW as much and as often as about anyone, and I honestly don't recall reading the specific post Laudig references in his letter, perhaps because I've become bored with the whole Lawrence mess. But thanks to his letter I know all about it as does a lot of other people I suspect Laudig would prefer not know about it, including his former son-in-law, who just might have his attorney send him a letter if he in fact was not the person who posted the offending comment.

Yet another great example on the national level of the boom-a-rang effect can be seen by the impact a letter from House Speaker Dennis Hastert's lawyer to a little-known watchdog group threatening to sue it for defamation had. The watchdog group, Sunlight Foundation, accused Hastert of using federal highway funding to help him and his buddies make millions in a land deal in a report it released via its website. And of course the watchdog group obliged the Speaker by posting his attorney's letter in full, wearing it like a badge of courage. It appeared that the letter more than the original report drew the attention of the mainstream media to its susbtance. If the Speaker had simply ignored it, perhaps the mainstream media would have as well.

The best step to follow if you believe you have been defamed by something written on a blog site, is to quietly contact the blog site's owner or editor and express your concerns about the item without threatening a lawsuit right out of the box and kindly request its removal or correction. You might be surprised at how effective this form of communication works.


Anonymous said...

So which of TDW's targets do you think she would have responded to if she had been asked to remove comments from her blog? NONE.

Let me take your abusurd suggestion to 'let it be' a bit further...what you are suggestion would be the same as the following suggestions:

Women should not report rapes - just keep it to themselves because if they report the rape then everone will know they've been 'dirtied' and it may just end up a he said/she said case in which one's personal life is exposed.

Children should not tell anyone about daddy diddling with their thing or daddy asking them to diddle with his? The person the child tells might not believe them.

If falsely accused of a crime just go along with being falsely charged and convicted because it's just easier to go along with the charges than to stand up for the truth?

Obviously, I disagree strongly with your suggestion - it has a 'blackmail' smell to it!

Anonymous said...

WOW. I didn't get that at all. I thought the post was about asking a blogger to remove a comment politely BEFORE sicking a lawyer on them.

How we got to rape, and incest, I don't know!

Gary R. Welsh said...

Anonymous 9:36--I can't speak for TDW, but I'm aware of comments that were promptly removed there that were clearly problemmatic. I have removed numerous posted comments from this blog in the past, which are usually always posted anonymously.

I'm with anonymous 10:00--I don't know how you arrive at the talk of rape and incest in the context of this discussion

Anonymous said...

Not sure why anonymous is comparing apples and oranges. Things that are clearly crimes should be reported.

In TDW's case, and in practically every other that I've seen online, the statements never fit the required proofs to rise to the level of defamation, and would never hold up. And you have to consider that website owner isn't legally responsible for what is posted in comments, any more than a building owner would be liable for grafitti scrawled on the side of their building.

Anonymous said...

The suggestion to kindly ask that a post/comment be removed is a good one - in theory. If you are on the receiving end of spiteful posts to blog/web sites, it is difficult to keep your emotions in check. Ask any one of us who has been on that receiving end. If Eric Miller's Advance America had posted a hateful missive about a gay rights activist, for example, I just don't see that activist calling Mr. Miller and nicely asking him to remove the post. However, leaving our emotions at the door in any and all circumstances in order to handle the issue with diplomacy and tact is something to which we can all aspire.

Anonymous said...

For a bunch of lawyers and wanna be lawyers, perhaps you all should heed your own advice and be quiet. I suggest you let others argue the defamation issue because the more you defend yourselves the more you reveal your potential malice behind the content that you have both incited and actually posted or allowed to remain posted on your site. Further, yes truth is only a defense, but if someone can carry their burden it will then shift to you to defend the truth of the matters you have asserted on your blogs. My question for you is this: are you comfortable with that? Your blogs are either a site for people to come to vent and rumor and can't be held accountable for content.. or your sites are accountable and you stand by them as the truth. In that case, ethics and journalistic standards apply to your blogs (especially seeing as you all want press credentials). My thinking is you can't have it both ways and must pick one. Perhaps it is nearing time for some lawyers and wanna be lawyers to get lawyers as some are becoming drunk by their power and may soon be sobered up by lawsuits. This discussion of First Admendment is ridicuous as there is no right for people to sit at work and be on the blog unless it is a part of their job duty. TDW's attempt at a legal arguement is really misplaced. Ask the Enquirer if they have EVER had to pay up. Yes, they have! Everyone CAN BE reachable...

Anonymous said...

A.I., I think it's time to ban someone and/or start posting IP addresses.
"anonymous" needs to understand that it's impossible to be so online.