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.