Welcome: I'm the "deep and progressive thinker" you linked to. I also have a pony tail. And, what's worst of all, I think Rakofsky's claims are pretty interesting. But then again, I turned my card in to the guildmasters on the blawgosphere long ago.
Joseph Rakofsky made a little money this week, accepting $5,000 from the University of St. Thomas Law School and Deborah Hackerson as settlement of a claim he brought against them for defamation. Some 70-plus defendants remain in the suit, referred to by some, including me, as Rakofsky v. The Internet, with most defendants apparently counting on motions to dismiss to end the action.
Rakofsky is a brand-spanking new lawyer. He tried his first jury trial, a murder case, in Washington, D.C. When the trial court declared a mistrial, the judge had harsh words for Rakofsky’s performance at trial. Those words were reported in The Washington Post, and then the case went viral on the legal internet. Rakofsky became a whipping boy for tongue-cluckers coast-to-coast and beyond. He should not have tried a murder case as his first case. He advertised deceptively. He is what Jose Baez would have become had Baez lost the Casey Anthony case.
I’m drawn to the underdog in every fight, so I am watching this case. Rakofsky is an easy target for keyboard warriors, folks who talk the talk regardless of whether, or how often, they darken a courthouse door. Yes, he walked, stumbled, and apparently failed. But I give him credit for putting himself on the line, in open court.
I’ve ordered a copy of the trial transcript in the case that caused all the furor. I’ve seen a piece or two of transcript. There is no doubt the judge slammed him with words that would make any self-respecting trial lawyer blush. In his lawsuit, Rakofsky contends that there was some tactical purpose, or at least benefit to his client, behind his inexperienced stumbling. That is a tall order. The transcript has yet to arrive. I am anxious to evaluate that claim.
What interests me about the Rakofsky case is less whether he erred at trial. I assume he did. The judge’s words leave little doubt about it. What interests is whether the tort of mobbing, taking shape in the context of employment law, will find its way into disputes of this sort. It should.
Rakofsky sued for defamation, contending that the scores of folks who mocked him uttered untruths that damaged his reputation. But what if the initial press reports were accurate? What if the trial court did declare a mistrial for manifest necessity because of ineffective assistance of counsel? Does that mean that subsequent efforts to ruin his reputation, to fan the flames, as it were, are not actionable? It is one thing to report on a judge’s assessment of a lawyer’s performance at trial; quite another to saddle Rakofsky up and make him into you very own hobby horse.
The tort of mobbing recognizes that even truth can be turned to malicious purpose. We recognize this in the context of publication of private facts, and permit suit for invasion of privacy. But what about republication with malice of public truths? In the Rakofsky case, news organizations had every right to report the facts of this case as they saw them. Thereafter, did private writers cross a line the law is prepared to recognize by seeking less to report facts than to shame and humiliate him?
Several of the motions to dismiss in the case on behalf of bloggers cite First Amendment grounds in support of their position. That begs the larger question of whether every crackpot with a keyboard in this country can cloak himself or herself in the First Amendment and call themselves the press. It strikes me that bloggers indisputably have a right to speak, but that they are private entities accountable for the consequences of their speech. Hitting the send button on your laptop doesn’t make you The Washington Post.
The common law recognizes a tort of outrage, or intentional infliction of emotional distress. To prove it, one need show an intent to inflict distress and the infliction of that distress. The speech supporting the distress can, in fact, be true. It is an open question whether there a tort of Internet mobbing can gain traction in the courts. The Rakofsky case might provide a means of testing it.
The Internet has lowered the barriers to entry into print to almost nothing. Yet a look at most online newspapers' comments sections suggests that much of the speech is fit for a psych ward. Just why newspapers and bloggers permit anonymous posting is an open question: Cowards can say anything they like from behind a pseudonym. Bloggers at least craft an online identity and, as the Rakofsky case shows, can be found if someone wants to hold them to account for their speech. Yet even blogging, a world without editors, resembles a vast libidinal playground, where bullies rumble and roar. Why not a tort that gives a plaintiff a club with which to strike back?
I am not sure why St. Thomas and Ms. Hackerson paid nuisance value to get out of the suit. It troubles me not at all that they put a little money in Rakofsky’s pocket. This is not a critical suit defining press freedom. It’s a sandbox battle between parties fighting over the right to behave like bullies. Perhaps St. Thomas and Ms. Hackerson just wanted out because they did not like the company this suit forced them to keep.
I have a couple friends who are defendants in this suit, at least I think I do. The last time I wrote about this suit strong words were tossed my way by a few who felt betrayed. I wish they would get out of this mess as well. Whether Rakofsky is an incompetent lawyer or not is not the issue. At least one issue, and the only issue that interests me, is whether emerging legal doctrine regarding the regulation of speech will permit a plaintiff to strike back when he believes that an online cabal has set their sights on destroying him for no reason other than it makes them feel good about their blogging prowess.
I will soon be in Seattle and the occasion is pure joy: My oldest son, Isaac, is getting married. The years have passed and the sorrow of losing him to the wide world is replaced now with a joy I have not yet known. My family is being given a gift, the gift of love. All that my wife and I are called upon to do is accept the gift of a new daughter. Can it truly be?
The wedding has long been in the planning stages. The idea has grown and taken on a delightful shape all its own. This spring my wife and I were walking the national seashore on the Outer Cape. I saw a tiny set of footprints in the sand, no larger than the paw of a large dog. At once, I had a full heart. I could see a grandchild leaving those footprints. My son’s child, a child he will have with his wife, the woman he has chosen to mark out his own place in the world. I am dumbstruck with awe.
"I am ready," I said to my wife.
She smiled as she always does when I dare to hope. She conceded she was, too. Some day, I hope to spend a cloistered afternoon with my wife and grandchild, a doting old fool.
My life has been a mad scramble of promises broken and kept. I am with the prophet Isaiah, a man of unclean lips. I know my sins, and they weigh me down. Only a fool grows old with satisfaction. Time oppresses. It is fleeting and threatening always simply to end. There is so much I would like to try again.
I could have been a better student. A better husband. A better parent. A better son. Better at everything. It is enough some days, this sense of false starts and near misses, to make me want to quit the game. But then chaos, the only god I know, beckons, and the dance begins anew. I fully intend to kick and scream my way into silence. Life is, as Theodore Roosevelt said, strife.
But today I smile. This is not my fight. I am but one of a set of sheltering arms, united in the hope that Isaac and his bride know joy, and that they will learn the hard satisfaction of years spent struggling together. Suddenly something like faith blossoms: I am the instrument of purposes far greater than my own. And I am profoundly grateful. And luckier than I have any right to be.
I spoke this afternoon to an adversary turned friend – Kevin O’Connor, if you must know – about the wedding. "You hardly seem old enough to have a child about to marry," he said. Oh, I am old enough, I assured him. He told me about his kids, and I was, of course, envious. His brood is younger. He has much magic to come under his own roof.
I am a restless sort of soul. This summer I took the better part of a month off to rest up for the new year. Instead of lolling, I wrote a book on jury nullification and sent it off to a publisher awaiting it. I am all ass and elbows struggling forever to get somewhere, or is it to escape from something? It wearies me.
But there is no weariness in the celebration to come. Yes, my family is complex. There will be people at this wedding the thought of whom could disturb a night’s sleep. I am banishing these demons for a spell.
My children, my wife and I have shared good times, and bad. We’ve seen loved ones die, and those we love struggle at death’s door. We’ve laughed, we’ve cried, and we’ve cut our own path. I have learned to like the silence of an empty nest. My children are adults with purposes of their own. We’ve done all this, but I have now the pure pleasure of seeing a much-loved son embrace the one he loves and declare to the world: "She and I are one." I am awestruck.
So forgive me my joy and my satisfaction. I fully intend to spend time simply thanking the heavens for my good fortune. Healthy children, a wife who has recovered her health after many scary years, and now a new daughter and, in my son, a new and suddenly richer man. I suppose the grandchildren can wait, at least for a little while. But really, kids, time is short ....
Reprinted courtesy of the Connecticut Law Tribune.