The Internet Is For Baseless Legal Threats: Popehat, Greenfield And Volokh Triple-Streisand Edition!
from the often-more-entertaining-than-porn,-the-other-thing-the-net-does-well dept
It has long been stated that the Internet is for porn. And while that's never really going to change, it also appears that the Internet has another purpose: baseless legal threats. Something tends to get lost in the ether(net), stripping away many people's ability to think clearly when confronted with criticism. This isn't necessarily a new thing, but we do seem to be "enjoying" a spike in confrontational (but baseless) legal threats.
From Teri Buhl's unpublishable tweets to On Press Inc.'s libel/liable difficulties to Ken Matherne's unintentionally hilarious grab bag of misspelled legal terms to Prenda Law's desperate Hail Mary defamation suits, the internet is practically swimming in misguided legal theories and badly written threats.
Here's another story to add to the corpus asshattus of baseless legal threats. The very brief back story: A little over two years ago, The Volokh Conspiracy and Scott Greenfield's Simple Justice blog covered the story of a certain Norman Golb, a University of Chicago professor who found himself tangling with Lawrence Schiffman, the head of Judaic Studies at NYU, over the origins of the Dead Sea scrolls.
These two academics went head-to-head, attacking each other at various internet locations. Norman Golb's son, Raphael, also stepped into the fray, creating more than 50 aliases in an effort to emulate a groundswell of support for his father's viewpoint. Then he went one step further, impersonating Schiffman and sending emails to NYU students and staff suggesting he (as Schiffman) had committed plagiarism in one of his articles.
The end result: Raphael Golb was handed an indictment for identity theft, impersonation and harassment. All of this over an academic pissing match.
Flash-forward to just a few days ago, and both Eugene Volokh and Scott Greenfield receive identical emails pertaining to this story, both containing legal threats.
Law Offices ofThe offending post at Volokh contained nothing more than a quote of the People v. Golb opinion and a First Amendment analysis of the decision. (Interestingly, considering the threats, Volokh agreed with the decision that found in favor of Schiffman.) Greenfield's post was a bit more in depth and was written as the case was headed to court.
Rieders, Travis, Humphrey, Harris,
Waters & Waffenschmidt
161 West Third Street
PO Box 215
Williamsport, PA 17701
E-MAIL TO: Eugene Volovh [firstname.lastname@example.org]
FROM: Clifford A. Rieders, Esquire
DATE: March 13, 2013
RE: Lawrence Schiffman
CC: Professor Lawrence Schiffman
Please be advised that the undersigned represents Professor Lawrence Schiffman, previously Professor of Hebrew and Judaic Studies, New York University, Skirball Department of Hebrew and Judaic Studies, now Vice Provost of Yeshiva University.
Dr. Schiffman's name was the subject of illegal and criminal misconduct by Raphael Golb. Your website has been provided to me as one of the locations where the criminal postings occurred.
Please confirm that within five (5) work days of the date of this email the following will occur:
1. Complete removal of the blog material;
2. Removal of index entries on search engines;
3. Cancellation of fraudulent email accounts;
4. Removal of any other mention or reference to Dr. Schiffman by Mr. Golb or anyone responding to him.
We will need your certification as to all efforts made to expunge the material.
I enclose as Exhibit 1 news release by the office of Manhattan District Attorney Robert M. Morgenthau announcing the arrest of the 49-year-old Raphael Golb for creating multiple aliases to engage in the campaign of impersonation and harassment relating to the Dead Sea Scrolls and scholars of opposing viewpoints. Mr. Golb was arrested on charges of identity theft, criminal impersonation, and aggravated harassment.
I am also enclosing as Exhibit 2 letter from Director, Witness Aid Services Unit, District Attorney of the County of New York, providing a temporary order of protection which the court issued in the aforementioned criminal case.
I am advised that Mr. Golb has been convicted and appeals denied. Unfortunately, there continue to be current blogs containing Golb's fabricated story, as though Dr. Schiffman acknowledged or admitted some wrongdoing. I am enclosing not only a variety of sampling but also the platform, address and the blog as well as URLs.
Please contact me as soon as possible at ...
Volokh's reaction was to break one of his own rules:
The e-mail from Mr. Rieders of course offers no explanation of how this is a "criminal posting," because of course it isn't. Fortunately, I can tell that there is absolutely zero basis for the demand letter; other recipients of the e-mail might not be so lucky.Greenfield's response is nearly identical. (Nearly.)
I generally do not publish letters sent to me, but unfounded demands such as this are an exception. This is especially so because demonstrating the unsoundness of the lawyer's argument requires showing the entirety of the letter — both the particular language that the letter included ("criminal postings," the demand for "[c]omplete removal of the blog material," the demand for "[r]emoval of any other mention or reference to Dr. Schiffman by Mr. Golb or anyone responding to him," and so on) and what the letter didn't include (any specific explanation for why the material would indeed be legally actionable).
In any event, I'm happy to certify that no efforts whatsoever will be made to expunge the material in that blog post; my response to Mr. Rieders and Prof. Schiffman will be a link to this post.
Eugene is much nicer than I am. Had he not calmly and succinctly explained the email's massive failing, I would have been constrained to respond, bite me. I am happy to say that because of Eugene's parsing of the unfounded email, I can maintain my dignity, merely refer to Eugene's response, and add, "what he said."At this point, Ken White at Popehat (never one to suffer "feckless legal bullies") stepped in and attempted to divine who was behind these legal threats and ascertain their rationale for shooting their own client in the foot.
So, what he said. Asshole.
Dear Mr. Rieders,White received this in response:
I am an attorney in Los Angeles, a member of the First Amendment Lawyers Association, and write at a blog called www.popehat.com regarding various legal matters, particularly including free speech and legal threats based on online comment.
Today I noticed two posts — one by Eugene Volokh, and one by Scott Greenfield — discussing legal threats you have sent.
Are you willing to answer questions about those threats? I am planning on writing a post about them, and would like to solicit your position first.
My questions are these:
1. Did you actually draft this threatening email yourself, or was it some underling?
2. Did you actually select the recipients of the letter, or were the targets selected by some automation, or by a non-lawyer?
3. I ask #2 because I am attempting to grasp, in looking at Professor Volokh's post about the Golb matter (http://www.volokh.com/2013/01/29/no-first-amendment-violation-in-e-mail-impersonation-case/), how Professor Volokh's analysis of a published appellate case could possibly be actionable in any way, let alone "criminal."
4. What is your theory on how a discussion of the allegations against Mr. Golb — including allegations that he wronged your client, Mr. Schiffman — could be actionable or "criminal"? Is it your position that your theory has any support in any legal authority accessible to the general public?
5. I recognize that you would not be so unprofessional as to disclose your confidential communication with a particular client. Therefore, let me frame my next series of questions as follows: Are you familiar with the Streisand Effect? Is it your practice to advise clients, before sending out extravagant legal threats demanding the removal of information about them from the internet, about the risks posed by the Streisand Effect — the risk that your threats will result in the challenged content being seen by several orders of magnitude more people? Is it your practice to advise clients that there may be particular risks in threatening bloggers with popular blogs known for being vigorous supporters of the First Amendment?
6. Do you believe that your representation of Mr. Schiffman in the course of making these threats falls within the standard of care for attorneys in your community?
Any response you would like to offer would be appreciated, and will be incorporated into my post commenting on your threats.
I have no idea what you are talking about, who you are or who you represent. Please therefor, [sic] do not respond again [sic]White and a couple of his readers went digging for who was actually behind these threats and found, unsurprisingly, that it was someone at the Rieders Travis law firm, as all the emails were sent from the same originating IP address. It seems rather unlikely that the same person who sent the original threatening emails would have "no idea" what Ken was talking about. Unless, of course, someone was generating fake email addresses and impersonating members of the Rieder Travis legal team, but that would just be insanely ironic considering the original subject matter.
The implications of these baseless legal threats for the threatening party are potentially huge. Both Ken White and Scott Greenfield mention the Streisand Effect. Apparently, Cliff Rieders (the person purportedly sending the ill-advised emails) is unfamiliar with the term. If he was, perhaps he wouldn't have bothered irritating this trio of bloggers, because what he's unleashing is going to do quite a bit of harm to his client's interests.
White and Greenfield both have updated their posts to include the news that the Supreme Court in California has granted review of Golb's conviction. The order granting leave to appeal is dated March 11th. The threatening emails arrived on March 13th. This order directly contradicts Cliff Rieders' statement in the last paragraph of his email.
I am advised that Mr. Golb has been convicted and appeals denied.It certainly looks as though someone's trying to whitewash the web in advance of an appeals hearing. White theorizes that Rieders is blasting out identical emails to anyone who turns up in a rudimentary Google search for Schiffman and Golb. If this was a targeted takedown effort, Rieders likely would have avoided these blogs, choosing to go after more complicit writers. Unfortunately for Rieders and his client, he threatened the wrong people and his clumsy efforts are being debated in the court of public opinion. On top of that, the posts he wanted removed will remain live. Now, he and his client will be linked to unflattering stories about baseless legal threats, leading to even more bloggers pushing back against the takedown attempts.
It's the Streisand Effect and the only way to win is not to play. Many participants aren't even aware they're playing until it's too late. A full withdrawal of the threats, along with an apology, is about the only way to limit the damage. But, if the past is any indication, this will probably get a lot worse for Rieders (and more entertaining for the rest of us) before it gets any better.