Is Merely Explaining The Streisand Effect To Someone A 'Threat'?

from the paranoid-much? dept

Ken White, over at Popehat, has a story on the ridiculous situation concerning how lawyer/psychotherapist Jose Arcaya is going after lawyer Scott Greenfield (whose work we often mention around these parts). The history of how it got this far is a bit convoluted, and you can read the full Popehat post for the details, but here’s my shortened version: An apparently unsatisfied former client of Arcaya left a negative review of Arcaya on Yelp. Arcaya sued for defamation, arguing that being called “absolute scum” is not merely an opinion because of the use of the word “total” (which as far as I can tell is not actually used in the review — though perhaps he means “absolute” or perhaps something was edited. Also, for the record, the review appears to call him “absolute scum” not “absolute scum bag” though I doubt the difference matters):

Regarding the matter of whether “absolute scum bag” should be deemed defamation per se rests with the present court. Mr. Boka tTots out a series of cases indicating the word “scum” and “scum bag” do not fall in that category. However, by adding the word “total” he impugns everything about me, including character and capacity to carry-out legal work. It coincides well with the Dillon standard of defamatjon per se: a maliciously intended attack on my professional capabilities, an all encompassing put-down (i.e., “absolute scum”, not just “scum bag” Or “scum”)…

Anyway, the former Arcaya client reached out to White, who in turn reached out to Greenfield. Greenfield then reached out to Arcaya, trying to explain to him, nicely, that suing over someone calling you “absolute scum” on Yelp is probably not a productive venture and might — just possibly — backfire, thanks to a little thing called the Streisand Effect. About five or six years ago, a lawyer had told me that the Streisand Effect was losing its power because lawyers now recognized it. And yet, we keep discovering new lawyers who have no idea about it at all.

Now, some might take this as a friendly bit of advice about how a course of action could potentially backfire once it is revealed to the public. But Arcaya, apparently, took Greenfield’s explanation of how the Streisand Effect works… and claimed that it was Greenfield threatening him with the Streisand Effect. In response, Arcaya subpoenaed Greenfield and defended this move by apparently arguing that Greenfield was somehow threatening him in describing how the Streisand Effect tends to work, and claiming that Greenfield was somehow associated with “an illegal gang.”

Again, while I have no evidence that he was part of that illegal gang, as a lawyer Greenfield still should not have served as a conduit for that criminal enterprise. Rather than calling me Greenfield should have contact [sic] the Attorney General’s office or the police to denounce what he had learned. Because of his failure to uphold the principle of propriety as a server of the law, I lodged a complaint the [sic] First Department’s Discipline Committee.

Oh, right. Beyond just issuing the subpoena, Arcaya filed a wonderfully handwritten bar complaint against Greenfield — for daring to explain a basic online phenomenon. Wow.

What’s amazing is how frequently we’ve seen this kind of reaction. From Charles Carreon to Prenda Law, those who find themselves faced with the public reacting negatively to their own lawyerly overreactions assume that “the public” speaking out is some sort of “illegal gang” out to get them. They don’t realize that it’s not about them (at all), but rather the public exercising its free speech rights to criticize what the public believes is an abuse of power.

Either way, the idea that merely explaining the Streisand Effect to a lawyer who was about to step right into it is some sort of threat concerning a “criminal gang” that somehow violates proper lawyerly activities is so ridiculously laughable, that I’d argue it’s even more ridiculous than flipping out and suing over someone calling you “absolute scum.”





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Comments on “Is Merely Explaining The Streisand Effect To Someone A 'Threat'?”

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41 Comments
Michael (profile) says:

Again, while I have no evidence that he was part of that illegal gang, as a lawyer Greenfield still should not have served as a conduit for that criminal enterprise

So he thinks “The Streisand Effect” is some kind of criminal gang? If it were, I’m pretty sure the internet would have already shamed them into changing their name to something a little more manly. I could see that name for a boy band, but I’m pretty sure a band using that name would end up causing some kind of infinite loop of legal irony.

sigalrm (profile) says:

Re: Re: Re:

Actually, I think it’s a little more nuanced than that:

It’s (apparently) ok to call someone scum. It only turns defamatory when you preface it with an absolute, like “total scum”, or “complete scum”, thereby omitting the possibility that the defamed individual might be a quasi, hybrid, or otherwise partial scum. A possible example might be an incompetent scum.

By this logic, it’s not defamatory because he only stated that Greenfield is a member of an illegal gang, not a “complete” or “total” member of an illegal gang….

radarmonkey (profile) says:

Degrees of Scum

This really seems like a updating of the the Churchill quip:

Churchill: “Madam, would you sleep with me for five million pounds?”

Socialite: “My goodness, Mr. Churchill… Well, I suppose… we would have to discuss terms, of course… “

Churchill: “Would you sleep with me for five pounds?”

Socialite: “Mr. Churchill, what kind of woman do you think I am?!”

Churchill: “Madam, we’ve already established that. Now we are haggling about the price”

Arcaya seems fine with being called a scum … he just seems to not like the level of scum he’s being called.

Jake says:

“Lawyer/psychotherapist”? Really? I don’t know about New York State, but around here I’m pretty sure ‘psychotherapist’ is one of those job titles you don’t get to use unless you’ve spent a certain amount of time in medical school. Doing that while simultaneously studying for your bar exam strikes me as a recipe for being mediocre at both. And I do not even want to contemplate the procedural and conflict-of-interest questions that arise from someone acting as both therapist and attorney for a client.

Also, is it just me or is putting “PHD” after your name without specifying what it’s a PHD in usually a bad sign?

Anonymous Anonymous Coward says:

The totality of it all

I really wanted to call him a total scumbagel. But after reading the article and comments I now understand how total might be misinterpreted. So now he is partly a scumbagel and partly the stuff I scrape off my shoe after stepping in dog excrement.

The ‘him’ is up for grabs, use a Ouija board.

Noah Callaway says:

The Power of Streisand Grows

“About five or six years ago, a lawyer had told me that the Streisand Effect was losing its power because lawyers now recognized it”

This seems to me like the Streisand Effect gaining power. It is causing lawyer’s to curtail their awful behavior before they do stupid things, instead of after doing them.

Nick (profile) says:

new term?

I think this calls for a new term: The Streisand Paradox. Anyone naïve enough to incur the wrath of SE and is either unaware of SE or unable to conceptualize it without its history or name might take its expiation as a threat. So, do you explain it to would-be victims or just let the Effect play out to let them understand, first hand, its sheer power?

DNY (profile) says:

A pet peeve

Does anyone else feel that the use of the phrase “reached out to” to mean “e-mailed” or “sent a letter to” is like fingernails on a blackboard?

I have never seen it used so often in succession as in this article. I can’t stand it! It makes every relationship, even that of plaintiff and defendant, sound like something out of Rogerian psychotherapy!

Coyoty (profile) says:

I want to sue my parents for warning me against touching a hot stove. Clearly they were allied with the stove with the intention of causing me harm, which was borne out when I touched the stove and it burned me. I believe they also conspired with the cat to have me scratched when I pulled its tail. I question whether the cat would have considered that action without my parents suggesting it.

Trialia (profile) says:

...Oh ye gods...

…and little fishes. Seriously.

Quite apart from Arcaya’s sheer, astounding level of ignorance about both the ways in which the internet and online communities work, and the incoherence of his self-composed “legal documents, I have to look at his paperwork and wonder honestly whether Arcaya has a secretary or anyone in that role. I sincerely doubt it. Many of his sentences are visibly missing words, to the point where they barely make a lick of sense!

He’s missing half the single-syllable words in his phrases, such as “to”, “went”, “wait”, “way”, “in”, “my” and others, and his punctuation has clearly had a spellcheck run on it but nothing more, as he’s missing the possessive from several names (i.e. Boka rather than Boka’s when he clearly means the latter) along with a failure to close punctuation marks on several phrases where he’s attempted to use them.

I wouldn’t be surprised, given his name, if English is not his first language. In which case he’d have done even better to hire someone to make sure his legal documents were coherent, and maybe they’d have been able to point out the ridiculousness of his last few paragraphs!

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