Archive for the ‘First Amendment’ Category

Je Suis Charlie

It'sHardToBeLovedByIdiots

Translation: Mohammed overwhelmed by fundamentalists
Bubble: It’s hard to be loved by idiots

Two of the cartoons on this page are caricatures of the prophet Mohammed. Before yesterday, I couldn’t imagine circumstances where I would publish them, both because this blog doesn’t deal with religious issues and because such caricatures are offensive to Muslims.

I just don’t run around looking to insult the religious beliefs of others. To each their own, so long as it doesn’t impact others.

But I also write and publish and enjoy the magnificent freedom of speech. I’ve been discussing that subject a lot recently, though that was due to attempts to silence by force of law, not guns.

There’s no doubt that the horrific assault yesterday on the sharply satiric French political magazine Charlie Hebdo is not just an assault on all writers, but an assault on all that believe in free speech.

It doesn’t matter if we approve or not of the content of the magazine’s speech. That has nothing to do with the right to publish it.

What if we allowed ourselves to be intimidated into silence by force of guns on the subject of religion? What other subjects would be next? And who gets to make those decisions?

If we do not stand up to people now that wish to take away the fundamental right to express opinions, then when will it happen? And if not us, who then?

The answer to speech with which we disagree is more speech, not less.

I-Am-The_prohpet

Translation: “I am the prophet, asshole!” “Shut up, infidel!”

I think that the vast majority of Muslims are appalled by what has been done in their name. And now, because a small group of people have bastardized their religion, they see these depictions getting widespread dissemination.

We must, however, choose between the lesser of two evils. Do we remain silent in the face of violent attempts to censure, or do we speak out and insult perfectly innocent people in the process?

But there seems to me to be little alternative other than to stand up to evil, and the sooner the better. I suspect that those innocent Muslims know this all too well, as the militants within their religion may have killed thousands of Jews, Christians and Hindus around the world, but mostly they have killed their fellow Muslims. And done so by the millions.

The slaughter yesterday, and the need to respond, reminds me of a poem:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

Let’s hope that the pen is indeed mightier than the sword. You can see a wide selection of cartoon responses compiled here and here. But this is the one that I will close with, from Philadelphian Rob Tornoe:

RobTornoe

Things Get Worse for Dr. Michael Katz…(Updated x2)

Samson Freundlich with New York Law Journal front page story: Criticism of Doctor was Protected Speech, Judge Finds

Samson Freundlich with New York Law Journal front page story: Criticism of Doctor was Protected Speech, Judge Finds

So there’s the story, as the feature on the front page of Friday’s New York Law Journal: Justice Cynthia Kern‘s decision throwing out the defamation case Dr. Michael J. Katz  stupidly started against me and my co-blogger Samson Freundlich.

I previously blogged about this dismissal, but now it’s front page news. (NYLJ: Criticism of Doctor Was Protected Speech, Judge Finds)

And if the whole legal community didn’t already know that Justice Duane Hart had eviscerated Katz by repeatedly calling him a liar, they surely know now.

The story also introduces a new term to the legal lexicon, boneheaded, as in, this was a boneheaded suit to bring. That was the quote the paper elected to use:

Turkewitz said he was disappointed of the deep reluctance of judges to find cases frivolous and impose sanctions. “This was a really bone-headed lawsuit to bring, and all it did was make Dr. Katz look even worse,” he said.

Now I think that boneheaded should be one word, and not hyphenated, but lexicography isn’t my long suit, and I suppose that is a digression for another day.

While I was disappointed that Katz and his lawyers weren’t sanctioned, it’s clear to me that rebroadcasting in this suit the lacerating remarks Justice Hart made about Katz was one of the dumber moves I’ve seen in my 28 years practicing law.

And now, due to the prominence of the story, the legal community also knows that it was the Nassau County firm of  Ruskin Moscou Faltishek that led to this debacle. Well played, gentlemen, well played.

Readers are left to guess for themselves why a firm would elect to start a case it must inevitably lose that also embarrasses the client.

Update (1/5/15):  Forbes now has the story also: Personal Injury Lawyer Gets Personal About Lawyers that Sue Him

Updated #2 (1/6/15 @ 12:15 pm): From Techdirt’s Tim Cushing:   Hilariously Stupid Defamation Suit Against A Blogging Lawyer Tossed By New York Judge

The WSJ Rips Me Off — Now What? (An Open Letter)

Turkewitz - Wall Street JournalTo the editor:

This past weekend in the Notable and Quotable area of your editorial section, you copied a long excerpt from a recent posting I made here.  It was about Google Cars eviscerating the personal injury bar due to my expectations of improved safety.

I was struck with several different reactions:

1.  It was nice of you to notice the piece. I’m both Notable and Quotable in the WSJ. I wish my family felt that way. Aww shucks, and all that.

2.  My, oh my, you certainly copied a big chunk of my piece, didn’t you?  A word count shows you took 44% of my post. That sure is a lot given our copyright laws, isn’t it?

3.  Didn’t you think it might be worthwhile in the online version to supply a link so that readers would understand that my posting was a celebration of the diminution of my business, and not a complaint?

4.  Most importantly, don’t folks rip off your content all the time? And don’t you complain? What kind of example are you setting for others?

It’s this last point that I want to dwell on — though I think your selective editing on #3 is pretty important —  because it seems that such wanton copying only encourages others to do the same. This is part of that whole moronic “content wants to be free” claptrap that is prattled by those who’ve never created anything.

Now you might think, hey, we can just take your words under the “fair use” doctrine! But 1st Amendment guru Marc Randazza seems to say otherwise, and he isn’t particularly kind to you in doing so. Randazza writes,

As someone who blogs, it bugs me when other people steal my work and re-post it on their own blogs. It bothers me even if they provide a link back. Why? Because fuck you. This is my work. If you want to quote part of it, you’re most welcome. You feel like you need to do a large block quote? Go ahead. You hate it and want to ridicule it? Go ahead. You think I’m awesome? You must be sick.

What I’m getting at is fair use is fine, but just ripping off my shit is douchetastic.

Yeah, he’s colorful. But that lede is also followed by him understanding the gist of the piece, as opposed to your selective edits to take it out of context:

The theme of Eric’s article is that self-driving cars may cut down on accidents, insurance rates, deaths, etc., and he actually states that he cheers the thought that he might be put out of business.

Interestingly enough, the Wall Street Journal cuts off its plagiarism right before Eric makes that point. Instead, the WSJ dishonestly makes it look like Eric is whining that he won’t have as much work.

Ok, being quoted out of context? That’s all part of speaking in public. Some douchebag will always do that.

Like me, Randazza — who was my counsel in Rakofsky v. Internet — understands that quoting out of context isn’t the real problem.  We both write in public and when we do so we put on our big-boy pants and deal with it.

No, the real problem is theft. You weren’t commenting on what I wrote, the way Jacob Gershman did in his WSJ Law Blog post.  You simply cut and pasted my work onto your editorial page without asking.

Randazza goes on to the far more important fair use (or lack thereof) argument, one that should be second nature to you and your lawyers at the WSJ:

But what really bothered me about this is how the WSJ simply stole Eric’s work, and couldn’t be bothered to actually do any of its own — except putting the plagiarized portion next to some ads. They put it in the print version too.

And that is not fair use. It is even more ironic and douchey when you know that Eric’s work is on the WSJ [website], but behind a paywall.

I know that the WSJ must have lawyers on staff. I can’t imagine why they never learned anything about fair use. Because this is not fair use.

If you want the details, and the law of how you screwed this up, because your lawyers may be on vacation this time of year, go read Randazza’s full piece. He’s even kind enough to cite case law for you.  I’ll give you a hint though — and this comes from a guy who defends this stuff all the time –he’s pretty clear you fouled up:

Ultimately, the WSJ blew it here because they didn’t add anything to the original — they just lifted it and reposted it.

So now what do you do?

WSJ-TurkewitzWSJ-TurkewitzWell, here’s my suggestion: You write me a nice note that says, “Oops! I can’t believe we just took so much of your property and reprinted it without asking! We really shouldn’t have done that.”

And you also say that you shouldn’t have made it look, on your index page, as if I submitted it to you in this fashion, as seen in the graphic to the left, since I played no part in its appearance there. And that if you were going to edit my piece to imply something different, then a link should have been provided so that your readers could see full context.

Then you say, “What can we do to make this up to you!?”

And I say, because I’m a nice guy and willing to give you the answer in advance in case you are worried about lawsuits, “You owe me a beer and we’ll call it even.”

Why would I let you off the hook so easily? Because I have bigger concerns than the 12 rupees you might owe me for swiping my stuff without permission, that concern being your implicit endorsement of such practices.

Because that endorsement hurts all writers, both you and me together. (I know, it’s gotta suck for some at the WSJ to be in agreement with a personal injury attorney.)

And you say to me, “Wow, we’ve never received such a nice lawyer letter before! And your suggestion that we admit an error sounds perfectly reasonable, because if we don’t admit it was an error, others that copy our stuff might possibly throw this little theft back at us one day as a defense, ‘Hey, if youse guys at da Journal can steal 44% of that idiot-lawyer-blogger’s content, why can’t we just take 44% from youse, huh?’ ”

You’ve probably never been offered such a good deal, that being the actual, real-world benefits of saying “oops.”

Now I know that you probably get pitched a bazillion times a day from kings and queens, presidents and prime ministers and all manner of CEOs and genuflecting flacks trying to use your paper as a forum for their brilliant thoughts and ideas. You might simply have thought I’d be grateful to have my words appear in your august periodical in its widely read editorial area, even if  you didn’t ask me and you selectively neutered out the main point.

But what you did was wrong from a much broader and fundamental point than a simple copyright violation of my little blog. You violated the ancient Golden Rule: If you steal from others then you can’t complain when others steal from you.

I await your oops letter. And my cold beer. It’s for your own good.

Your new bestest, BFF and beer drinking buddy,

/s/ E.T.

Updated P.S. - I should have also noted, when writing this story, that you are in good company. Both the Daily News and the New York Times have likewise ripped me off, with the details at those links.

More Motions to Dismiss Against Dr. Michael Katz

DrMicheaelKatz-Pinocchio

Justice Hart’s opinion of Dr. Katz.

Your familiarity with the defamation suit against me by Dr. Michael Katz will be presumed. Very briefly, he’s the guy that sued me because Justice Duane Hart called him a liar about 25 times and I reported it. He can’t sue the judge, so he figured he would sue me. I’ve moved to dismiss and have him sanctioned for his frivolous suit, frivolous conduct, and making an improper demand for $200 million.

My co-defendants have now also made motions to dismiss. Samson Freundlich did a “me too” motion (Affid – Freundlich) that includes this gem of a sentence that gave me a laugh:

I hereby reiterate, stress, pinpoint, underscore, focus, resonate, emphasize and magnify their same, similar and identical legal posture to myself, defendant SAMSON FREUNDLICH and incorporate into this affirmation all of their said motion papers-including, but not limited to, their memorandum of law with their annexed respective exhibits previously submitted to this honorable court and heretofore respectfully adopt, restate and recapitulate, without exception, all of their legal and factual arguments presented therein in their entirety.

And co-defendants Lester, Schwab, Katz & Dwyer and its partner Paul Kassirer, cross-moved with this filing today: Memo of Law. Theirs is a bit different than ours since we did an original publication of blog posts and theirs deals primarily with an email that Kassirer sent.

Additional documents in that filing are Kassirer’s Affidavit and this July 29 Order where the defendants in the underlying action tried to get a different doctor to do a new defense medical exam after Justice Hart made mincemeat out of Katz, out of concern that Katz would be shredded on cross-examination due to the judicial findings by Justice Hart that he had lied. That application for a new medical-legal exam was denied.

Motion to Dismiss/Sanction Against Dr. Michael Katz

DrMicheaelKatz-Pinocchio

This is what Justice Duane Hart thinks of Dr. Michael Katz

Remember how I reported that I’d been sued again for defamation? Justice Duane Hart in Queens had ripped Dr. Michael Katz a new one in open court for acting like Pinocchio. And the good doctor, not being able to sue the judge for calling him a “liar” about 25 times or so, figured he would sue me instead for reporting it. (Shooting the Messenger (I’ve Been Sued Again))

Both Scott Greenfield (Turkewitz Sued By “Liar” Doctor, Michael Katz) and Marc Randazza (Judge Admonishes Expert Witness – Expert Witness Sues Blogger Who Reported On It) mocked the lawsuit.

Well, the motion to dismiss was filed this morning. And with it, the motion for sanctions. Against both the doctor and the lawyers who drafted this misbegotten, ill-advised, mongrel of a suit destined for the trash heap of history.

Having sued me on five separate causes of action, the memo runs a bit long. But this is the lede from the Memo of Law:

Last year Justice Duane Hart in Queens made numerous acidic comments about well-known defense orthopedist Michael J. Katz, calling him a liar at least 25 times (among other things). Eric Turkewitz reported on these extraordinary court proceedings on his law blog. Since Katz can’t sue the judge, he sued Turkewitz instead for reporting on what the judge said, claiming defamation, as well as a kitchen sink of other claims based on the exact same protected conduct. Not only must the case be dismissed since such reportage is absolutely protected by the law, but sanctions should be imposed against the plaintiffs for each of the clearly frivolous claims.

Part of that kitchen sink of claims that were alleged, to act as a bastard surrogate for defamation, is prima facie tort. About this, the brief says:

Prima facie tort was designed to provide a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy. It is not a catch-all alternative for every grievance, annoyance, gripe and squawk  that is not independently viable.  There is no cause of action for saying mean things about someone on the Internet. Not in this country.

For those that care about the sanctions part, and what it means in New York, the brief gets there at page 28 after deconstructing each of the causes of action, and includes this piece:

It is important to note that the CPLR sanctions are set at $10,000 per prevailing party and each individual claim.  For the purposes of this matter, there are two plaintiffs and two defendants and five frivolous claims, thus subjecting the plaintiffs to as much as $200,000 in costs under CPLR 8303-a.  A long analysis of this subject was done by Justice Lebedeff in In Re Entertainment Partners Group, Inc. v. Davis,.

The complaint he filed is here, where Katz confesses in exquisite and meticulous fashion about the judicial reaming he got. You’ll find it on pages 15-30. Yeah, you read that right, it took him 15 pages to describe all the times he was called a liar.

Having confessed, conceded, declared, attested and otherwise sung to the world that Justice Katz did, in fact, call him a liar, it is remarkable that any lawyer would take this matter and sue me for reporting on what happened in court. Any lawyer worth a damn knows the suit is empty, which means to me that the only logical reason it could have been taken is either because Katz offered the firm enough money to do so, or Katz is a friend/relative of someone at the firm. But friends don’t let friends file frivolous suits.

Which is why the most important word a lawyer needs to know is “no.” Placing your client, and yourself, in the line of fire for sanctions is, as we say in legalese, an ill-considered, imprudent, insane, misguided, half-baked, bird-brained, blockheaded, short-sighted and otherwise dumb-ass thing to do. I’ve said this before my friends, and I’ll say it again: I have a thesaurus and I’m not afraid to use it.

For those that care about such things, this is the transcript of the original testimony on April 12 2013.

The transcript of the July 1st proceeding is here.

The transcript of the July 8th proceeding is here.

A supporting affidavit from my counsel is here.

The video of the one minute and 56 second exam that Katz did was up on YouTube, but YouTube took it down, despite it being part of a legal proceeding.
——————

Update (7/31/14): My co-defendants have now also moved to dismiss.

Lawyering Under the Lights (And Thoughts on the Rakofsky Dismissal)

spotlight_r

OK, the Rakofsky v. Internet decision is in, and the motions to dismiss were all granted. The motion for sanctions was denied. (Your familiarity with the facts will be assumed.) You can read a variety of opinions on the subject here: Simple JusticeTechdirt, Popehat, Lawyernomics, Philly Law Blog, My Shingle.

But I’m not writing to rehash the opinion (Here, if you want to read it). I’m writing instead because of the bizarre scenario that occurred where I wore three different hats. And to give my thoughts on standing my ground in this fight.

First I was a blogger that mentioned Rakofsky in a post about attorney advertising.

Then I was a defamation defendant telling him to go shit in a hat after he sued me for stating my opinion, along with a gazillion others.

And then I was local counsel for 35 defendants (16 authors). Almost all of them were highly opinionated attorneys, had law blogs, and knew perfectly well how to stand on their own two feet in the well of the courtroom. (Client list) There wasn’t a flinching fawn anywhere in this group.

I took the gig as local counsel because I assumed it would be easy. The case clearly had no merit, would need a simple motion to dismiss, and  **poof** it would be gone. I figured six months, tops, and First Amendment guru Marc Randazza was going to do all the heavy lifting as our pro hac vice counsel while I worried about local procedure on my home court.

Now lawyers working either on contingency or for a flat fee make those kinds of calls all the time, balancing the time they think they will invest in a matter against the value gained. But this took two years, confounding all expectations, and required a lot of extra time with some pretty sharp minds looking on. While I’ve had high profile cases before — including one that hit 60 Minutes some years back — I didn’t have blogging lawyers as clients and a profusion of popcorn eating armchair pundits looking on and reading the filings.

Most readers only know me through this blog, not by watching the actual practice of law. I have a separate website for my law practice (which I still hate), and I do that on purpose.  The contents over here are opinion and news, and the contents over there are a digital brochure for lawyering. I rarely link to the website, or even mention it, and it’s seldom visited relative to this blog’s traffic. People here don’t watch me practice law.

But everything was now different as I became a crazy cocktail of blogger, defendant and lawyer — shaken (not stirred) together. And folks were watching.

Given that blogger/defendant/lawyer brew , it puts me in a good position to shed some light on why this took two years, as some have criticized New York’s judiciary system for the delay. This is the short version of the procedural morass — including plaintiffs’ counsel quitting and our first judge retiring:

I know that this seems like a lot, but it really is the short version.  It should have been simple, but it wasn’t. That sucks for those involved, but really, what were the odds that the plaintiffs’ lawyer would quit and then the judge would retire? Those were both biggies.

Is it possible the case could go on further with an appeal? I suppose it is, but as pointed out elsewhere, the judge was quite charitable toward Rakofsky by not sanctioning him, perhaps believing he’d been punished enough with the scathing online commentary, albeit much of it brought on by his own conduct.

But appellate judges might not be as dismissive as the trial court was of his having held himself out as a New York lawyer and putting a New York law office on his letterhead when he’s not admitted here. Leaving aside the cost of an appeal, there is much to lose by having appellate judges look at the conduct that many were already criticizing.

I gave up long ago trying to make predictions about this case, so I won’t make any here about whether it’s truly over. In fact, I try not to make predictions on any of my cases since the vagaries of life and litigation tend to upset the prediction applecart.

But assuming it is over, since that is what logic tells me, we move to the ultimate question: Was it worth being part of the defense team?

first-amendment-719591The answer has to be yes. The clients I have are like-minded individuals that cherish the First Amendment and are willing to fight for it. They could have easily ponied up the $5,000 that Rakofsky wanted early on to make the case go away, but they elected to fight. These are the types of people you want in your foxhole.

The message should go out loud and clear to all that consider bringing a frivolous suit against us. We make our living within the justice system, many of us by battling in the courtroom well. We have a pretty good grasp of how the courts work and the bounds of our freedom to speak and to write that are immortalized in the Bill of Rights.

We think it’s important to shine a light on ethical issues that we see with respect to attorney conduct that we believe crosses red lines, in the grand hope that such light becomes a disinfectant for the legal community. We do not want to see the cops’ Blue Code of Silence or the medical community’s White Coat of Silence darken our profession.

We will not cower or wilt under fear of empty threats or vacuous suits. Those that attempt such intimidation will find hardened and opinionated citizens who don’t care to relinquish our rights to speak freely. We know how to stand on the ramparts to fight for those rights, and we know how to win.  Representing such resolute individuals, despite the procedural shambles that ensued, has been my honor.

Was it worth doing? You’re damn right it was.

Holding My Tongue

Last weekend a story lit up around the legal blogosphere about a troublemaker named Carlos Miller.

Miller, it seems, wanted to take pictures and video on the Miami-Dade Metrorail. The security guards — a private company called 50 State Security — told him to stop, because it was illegal. He said no, because he knew it was perfectly legal. He got roughed up and arrested for his efforts.

He could have said no, of course, and gone on his merry way. That is, in fact, what 99% of the population would do. It seems like such a small thing to do; just turn off the camera.

But Miller isn’t part of the 99%. He’s part of the 1%. He has a website called Photography Is Not A Crime, where he documented his altercation. You can see the video of what happened. With a website by that name, it doesn’t take a genius to quickly figure out that Miller has an agenda. He risked being beaten up — or worse if things escalated as such things tend to do — for his agenda.

The story buzzed quickly around the blogosphere, so I won’t rehash all the details. You can read them from , GreenfieldPhilly Law Blog and many more.

But I held my tongue, or in the case, backed slowly away from the keyboard. The story broke January 21st, and I was picking a jury in a medical malpractice case the next day in an upstate (read: conservative) county.

While it wouldn’t take me long to type up a post on the subject, what would happen if a juror (impermissibly) Googled me and saw the post? What if I had a different opinion about troublemaker Carlos Miller than the juror?

I have the burden of proof at trial and need five out of six jurors to agree with my presentation to return a favorable verdict. And that post would be the very first thing that a juror would see.

The criminal defense bar gets the opportunity to be, well, a bit more colorful if they want. They only need one juror on their side, giving them more leeway.

Two short points: First, clients come first. They always have, they always will. Any practicing lawyer who blogs, and has the burden of proof at trial, has to pick stories very carefully.

Second, about Miller. While it might sound trite for me to quote a commercial when discussing him, I couldn’t get it out of my mind on the long drive back home. Nor could I dismiss the images used in that commercial, of Einstein, King, Ali, Earhart and so many more. The commercial is iconic:

Here’s to the crazy ones. The misfits. The rebels. The troublemakers. The round pegs in the square holes. The ones who see things differently. They’re not fond of rules. And they have no respect for the status quo. You can quote them, disagree with them, glorify or vilify them. But the only thing you can’t do is ignore them. Because they change things. They push the human race forward. While some may see them as the crazy ones, we see genius. Because the people who are crazy enough to think they can change the world, are the ones who do.

You can read Marc Randazza’s take on the case for the reason’s why Carlos Miller is a troublemaker to celebrate.

Blogging and Guns Drawn and Memorial Day

A terrifying story over at Patterico’s Pontifications, written by conservative blogger and Los Angeles prosecutor Patrick Frey. This is a very short snippet:

At 12:35 a.m. on July 1, 2011, sheriff’s deputies pounded on my front door and rang my doorbell. They shouted for me to open the door and come out with my hands up.

When I opened the door, deputies pointed guns at me and ordered me to put my hands in the air. I had a cell phone in my hand. Fortunately, they did not mistake it for a gun.

They ordered me to turn around and put my hands behind my back. They handcuffed me. They shouted questions at me: IS THERE ANYONE ELSE IN THE HOUSE? and WHERE ARE THEY? and ARE THEY ALIVE?

Considering that the issue of free speech is how the cops arrived at his door, the story is extraordinary. Why they arrived at his door is the subject of his piece.

On the same subject, Popehat has a piece on why free speech is important, not just for those you agree with, but for those you don’t.

And Scott Greenfield has more on why it’s so important to pass the word around regarding these issues.

This is Memorial Day weekend. People fought and died for this country based upon its core principles. One of those principles is free speech. It’s something to think about when you see those flags in your neighborhood.

Banning Anonymous Speech: Reality Mimics April Fool’s Gag

Really, who’d a thunk it? On April 1st I went live with a gag about Joe Lieberman proposing to ban anonymous speech on the Internet. I used a new blog: McIntyre v. Ohio to run it anonymously. Lots of fun was had, and I did a deconstruction of the hoax the day after, but no journalists were actually taken in.

But were real life politicians actually suckered into it? Or did they come up with this idea on his own?

Two bills  now pending in the New York State Senate and Assembly propose to ban anonymous speech. Yes, this would be in flagrant disregard of prior constitutional case law on the First Amendment. And that primary case is McIntyre v. Ohio for which my “other blog” is named.

The legislation — conjured due to concerns over cyber-bullying — would require anyone with a website:

“upon request remove any comments posted on his or her web site by an anonymous poster unless such anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate.” By “web site,” the bill means just what it seems to: Any New York-based website, including “social networks, blogs forums, message boards or any other discussion site where people can hold conversations in the form of posted messages.”

The bills will go nowhere, of course, because the First Amendment allows anonymous speech. For a good read on the long and deep history of such speech in the United States, read the concurring opinion of Justice Clarence Thomas in McIntyre.

For more on the subject:

New York to Publius: You’re Done Bully Boy (Simple Justice)

The New York Bill that Would Ban Anonymous Online Speech (Time)

Laughable Online Censorship Attempt Won’t Last a New York Minute (Huffington Post)

As for those that were in on my April Fool’s gag, they deserve once again their due credit for assisting:

Joe Lieberman v. the Internet: It’s not over. (Adam B. @ Daily Kos)

End of Section 230 Protection for Bloggers? (PattericoPatterico’s Pontifications)

Thanks To Senator Lieberman, You Guys Are Going To Get Me Sued (KenPopehat)

Dear Commenters: We Can’t Protect You Anymore (MystalAbove the Law)

Anti-terrorism law threatens First amendment? (Frank Point of Law)

Section 230 Amendment strips websites of immunity from anonymous commenters(RandazzaLegal Satyricon)

A Free Speech Disaster — The End of Anonymous Commenting? (CubanThe Cuban Revolution)

Lieberman to Internet: You’re Fungus (Greenfield Simple Justice)

Anonymous Commenting Legislation By Joe Lieberman? (TannebaumMy Law License)

Blind-Squirrel Lieberman Finds Acorn (BennettDefending People)

A One-Two-Punch Against Free Speech (DraughnWindy Pundit)

The Community You Create (Zubon Kill Ten Rats)

First Amendment Malpractice (Barovick at NY Medical Malpractice Law)

Will Free Speech in America Meet Its Match In Lieberman? (WiseWise Law Blog)

 

Rakofsky Moves to Amend His Defamation Case (Updated x2)

Joseph Rakofsky, as seen on a copy of his website, which has since been taken down.

Joseph Rakofsky, who last year sued the Internet for defamation and then amended his suit to add more parties, is now asking the court for permission to amend his suit again.

The proposed Second Amended Complaint weighs in at a staggering 268 pages, with 1,223  separately numbered paragraphs. No, I haven’t read it, but I see that it does contain a brand new tort he calls Internet mobbing, which I understand is a claim that prohibits use of the Internet for criticism and revokes the First Amendment. Feel free to wander amidst the legalese and let me know what these papers actually claim.

I will get to it, of course, since I am one of the defendants and also local counsel to 35 defendants. Marc Randazza is lead counsel for our group.

The motion to amend is made because, in New York, you only get to amend a complaint once as of right, which right he already used up just days after starting the suit. After that judicial permission is needed, or else a plaintiff could be constantly moving the goal posts making the case impossible to defend to conclusion.

Mr. Rakofsky also asks for additional relief in the form of amending the caption to correct the name of the lead defendant, the Washington Post, which had originally reported the story of Mr. Rakofsky’s troubles defending a murder trial in Washington D.C. and the judge’s highly uncharitable comments about his representation. The same judge added more just weeks ago when Rakofsky’s former client was sentenced to 10 years after a plea, and called the defense “clueless” and “motivated by self-interest,” according to Jamison Koehler who practices in that neck of the woods.

Other requested relief is to delete eight defendants from the caption because they settled with Rakofsky, including St. Thomas School of Law. And he seeks a default judgment against seven defendants who didn’t bother to answer the complaint at all, presumably because they are out of state and not subject to jurisdiction in New York.

Previously he had moved to add Yahoo! Google and Tech Dirt, but that relief is not mentioned in the Notice of Motion. The current attempt to amend the amended complaint is actually shorter this time than last.

There are numerous motions pending to dismiss. These papers do not address any of those motions.

Documents:

Cross-Motion and Affidavits (total, three pages)

2nd Amend Complaint pt 1 (part 1, 118 pages)

2nd Amend Complaint pt 2 (part 2, 151 pages)

Update (6/8/12):

My Affidavit in Opposition: ET-OppAffFinal

Our Memo of Law in Opposition: Rakofsky Opp to SAC -Final

Update (6/26/12):

Rakofsky’s Reply Memo of Law:ReplyOnMotionToAmend

 

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