Court To Racist Douchebags: It's Not Defamatory For A Newspaper To Call You 'Racist Douchebags'

from the how's-all-that-racism-and-douchebaggery-working-out-for-you dept

When is it defamatory to call people "racist douchebags?" Well, let's start with the "douchebag" part. This is always a statement of opinion and never actionable. Calling someone (in this case, several someones) a "douchebag" is like calling them an "asshole." It's not something that is possible of defaming anyone since it's always, without exception, a statement of opinion.

Calling someone a racist is almost always a statement of opinion. Unlike calling someone a felon or a child molester, claims of racism are based on perception. This makes them closer to a statement of opinion than an actionable fact.

So, calling people "racist douchebags" isn't defamatory. And it certainly isn't defamatory in a situation like this, where the group of people being called "racist douchebags" acted like racist douchebags. In this case, six members of a South Carolina high school football team sued the Charleston City Paper for calling them "racist douchebags." The events leading to the Charleston paper's column were filled with douchebaggery of the racist variety. (h/t Adam Steinbaugh)

Here's the super-dry take on the events from the South Carolina Appeal Court's decision [PDF] -- a take made even drier by the school's press conference statements.

Superintendent McGinley asked the School District's diversity consultant, Kevin Clayton and Associate Superintendent Louis Martin to conduct the investigation. Mr. Clayton and Mr. Martin interviewed the students on the football team and the coaches. The investigation revealed that "players would gather in a circle and smash the watermelon while others were either standing in a group or locking arms and making chanting sounds that were described as 'Ooo ooo ooo,' and several players demonstrated the motion." Superintendent McGinley stated the AMHS team named the watermelons "Bonds Wilson" and drew a face on each watermelon "that could be considered a caricature."

Some football players had created their own post-game ritual of demolishing a watermelon bearing the name of the defeated school while making monkey noises. Most of the schools this predominantly-white school faced during the football season were predominantly black. The "Bonds Wilson" referenced on this particular watermelon was the name of a segregated school that used to be located on the campus where Academic Magnet High School is located. It was named after two African-American educators. The students demolishing the "Bonds Wilson" watermelon were AMHS students.

The paper's op-ed opened with this paragraph, which triggered the football players. (And the lawsuit.)

Today, Charleston was consumed by one story and one story only: the removal of Academic Magnet football coach Bud Walpole amid allegations that his players more or less behaved like racist douchebags. And if there's one lesson to be learned from all of this[,] it's this: big toothy grins, watermelons, and monkey noises don't mix. Any sensible person can see that.

It went on to point out any of the adults overseeing AMHS's students and football team could have stopped this. But no one did until the ritual became public knowledge.

The point is that an entire team of players thought it was OK to draw a grinning face on a watermelon, smash it on the ground each time they beat a largely black team, and make monkey noises—and no one apparently told them to stop.

No one said, "Hey guys, I know not a single one of you has a racist bone in your body, you know, because that's a bad thing, and well, you're an Academic Magnet kid, and you come from a good middle-class white family and you're going to college, and there's no way in hell you'd, you know, draw a racist caricature on a watermelon and make monkey noises and do it fully aware of, like, what all that stuff means, because if you did, knowing all that stuff, then yikes, people might start thinking you're racists. Hell, I'd think you're a racist, and, well, I just don't know if I can deal with the fact that Charleston's best and brightest students are racist douchebags. I mean, it's just a joke right? Right?"

The paper's publisher argued these statements were protected speech. It noted the columnist had formed his opinions based on the students' actions as depicted in statements made by the school during its press conference. Those facts led the columnist to the conclusion the students acted like "racist douchebags" and the football coach at least implicitly condoned racist douchebaggery.

The students hilariously argued this was actual malice, engaged in by the paper "without any investigation, without any evidence, without anything to come to that conclusion." Perhaps the plaintiffs failed to attend the press conference in which the school said football players were demolishing watermelons painted with the names of predominantly-black schools while making monkey noises.

This was not the students' stupidest argument. This one is:

Appellants asserted the players' motives were not racially based but more akin to the movie Castaway where Tom Hanks drew a face on a volleyball and named it "Wilson;" here, the football players drew a face on the watermelon and named it "BondsWilson."

Oh, OK. [Recalls classic scene in "Castway" where Hanks' character beats the hell out of "Wilson" while conjuring Jim Crow imagery.]

The court could not disagree more. It upholds the lower court's decision by pointing out obvious things about defamation law that the plaintiffs' lawyer should have used to dissuade them from suing.

First, the circuit court found that all of the factual statements in the articles were "accurate reproductions of comments made publicly by School District officials, and thus [were] protected by the fair report privilege." Next, the circuit court found the remaining statements in the articles were "merely expressions of the writer's opinions and ideas on a matter of public concern. Under established First Amendment jurisprudence, Jones Street [Publishers] cannot be held liable for such statements."

[...]

The court indicated that it was "settled law that expressions of opinion on matters of public concern are immune from liability for defamation." The court noted that once the factual statements in the articles that summarized the statements made by the School District are removed, none of the remaining statements "assert[] any verifiable, objectively provable fact. They are expressions of the editorial writer's ideas and opinions, using rhetorical hyperbole to emphasize his views."

More simply put:

We do not find that the term "racist douchebag" can "reasonably [be] interpreted as stating actual facts" about Appellants.

Especially when, as the court notes, even the plaintiffs agreed that declaring something or someone to be "racist" is a matter of opinion. A footnote contains statements made by the players and coach in court that attest to the Appeals Court's stated fact:

Appellant Adam Ackerman was asked, "Do you believe that whether or not something is racist is a matter of opinion?" Appellant replied, "It is a matter of opinion."

Appellant R.M. was asked, "[D]o you think that people can have different opinions as to what is racist?" Appellant responded, "Absolutely."

Appellant C.F. was asked, "Do you think whether or not the watermelon ritual, the perception of the watermelon ritual, whether or not that's racist is a matter of opinion?" Appellant responded, "[I]t is a matter of opinion, but it's also—it's an opinion generated on what you've heard."

Appellant Coach Walpole was asked, "Who determines whether or not something is racist?" Appellant responded, "It's up to the—it depends on what it is, up to the individual interpretation, I don't know."

More inadvertent hilarity. In their effort to prove they weren't "racist douchebags" by claiming they didn't believe beating watermelons bearing black school names while hooting like monkeys was racist, the appellants made it clear the labeling of something or someone as "racist" is a matter of opinion, not a statement of fact. Trying to rid themselves of the "racist douchebag" label only made it easier to apply and even less likely to result in a victory.

There's nothing here for the "racist douchebags." They will continue to be "racist douchebags" upon their return to the lower court where their lawsuit will be dismissed. Maybe they'll continue to be "racist douchebags" long after the last check to their representation has cleared. Who knows. But for at least one awful night in South Carolina, they were racist douchebags.

This douchebaggery might have faded into the background months ago, but the plaintiffs desire to be proven right apparently outweighed their desire to put this racist activity behind them. Welcome back to the news cycle, douchebags.

Filed Under: 1st amendment, charleston, defamation, free speech, opinion, racist douchebag, south carolina
Companies: charleston city paper


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  • icon
    Stephen T. Stone (profile), 15 Nov 2019 @ 10:54am

    Appellants asserted the players' motives were not racially based but more akin to the movie Castaway where Tom Hanks drew a face on a volleyball and named it "Wilson;" here, the football players drew a face on the watermelon and named it "BondsWilson."

    This is so much of a reach that it could be one of Dhalsim’s moves in a Street Fighter game.

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  • icon
    Thad (profile), 15 Nov 2019 @ 10:55am

    Racist douchebags: "But what if it really was defamatory, because [series of goalpost-shifting non sequiturs that have nothing to do with defamation law]?"

    reply to this | link to this | view in chronology ]

  • identicon
    bt, 15 Nov 2019 @ 11:17am

    On to Bigger Things

    Not to worry, I'm sure this exercise will raise their stature and one or more of them will end up running for office or joining the Federalist Society where there intellectual rigor will be recongnized and rewarded.

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  • identicon
    Baron von Robber, 15 Nov 2019 @ 11:17am

    "Some football players had created their own post-game ritual of demolishing a watermelon bearing the name of the defeated school while making monkey noises."

    "The students hilariously argued this was actual malice"

    Dammit, my Irony-O-Meter exploded.

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  • icon
    Bloof (profile), 15 Nov 2019 @ 11:26am

    Well, if there's one thing we all know by now it's that filing and losing a lawsuit over being called a racist is a surefire way to get people to stop calling you one, and surely isn't going to get the fact you're known for being a racist douchebag repeated across the internet until the end of time.

    Seriously though, if you don't want to be called a racist douchebag, stop being racist douchebags. It's not hard, the vast majority of humanity manage to live their lives without making monkey noises and smashing watermelons to taunt African Americans.

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    • identicon
      Anonymous Coward, 15 Nov 2019 @ 11:36am

      Re:

      Hey I'm sure there's someone, somewhere who's been called racist when they were not (or at least a majority of people would not consider them racist).

      But they probably didn't sue over the insignificant slur.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 15 Nov 2019 @ 12:15pm

        Re: Re:

        I am certain that being called a douchebag is defamatory.

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 15 Nov 2019 @ 12:37pm

          Your opinion doesn't carry the weight of law. The court’s opinion does.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 15 Nov 2019 @ 1:17pm

          Re: Re: Re:

          Have you tried not being a douchebag?

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 15 Nov 2019 @ 1:56pm

          Re: Re: Re:

          And I am certain you are wrong.

          reply to this | link to this | view in chronology ]

        • icon
          James Burkhardt (profile), 15 Nov 2019 @ 2:10pm

          Re: Re: Re:

          Defamation is about false statements of fact.

          No reasonable person would assume that if Bob was being called a douchebag the intent was to say that Bob was literally a sack with a syringe used in the process of douching a vagina.

          Instead it would be understood as a perjorative, and as a perjorative would be an expression of opinion, just as much as being called an asshole.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 15 Nov 2019 @ 2:49pm

            Re: Re: Re: Re:

            To be fair, some people really are literal assholes. Assholes with legs, a torso and other related bits but assholes nonetheless.

            reply to this | link to this | view in chronology ]

            • icon
              nasch (profile), 18 Nov 2019 @ 6:29am

              Re: Re: Re: Re: Re:

              To be fair, some people really are literal assholes. Assholes with legs, a torso and other related bits but assholes nonetheless.

              You are literally misusing the word literal. It sounds like you intend it for its original meaning, but are actually using it in the horrible new meaning that just adds emphasis and actually means the exact opposite of the original meaning: figurative. I beg you to stop.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 18 Nov 2019 @ 6:47am

                Re: Re: Re: Re: Re: Re:

                It's actually valid either way.

                If (part) of you is not a literal asshole then you have a horrible deformity or injury.

                The figurative meaning is self explanatory where all of a person is compared to an asshole.

                reply to this | link to this | view in chronology ]

                • icon
                  nasch (profile), 18 Nov 2019 @ 7:04am

                  Re: Re: Re: Re: Re: Re: Re:

                  He did not say part of them is an asshole. He said "some people really are literal assholes." Which is literally wrong. There is no person who is an actual walking talking anal sphincter. And claiming that "to have" and "to be" mean the same thing, as you are doing, is just as wrong.

                  reply to this | link to this | view in chronology ]

                  • identicon
                    Anonymous Coward, 18 Nov 2019 @ 8:43am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Oh god. In the "literally is its own antonym" sense what you said is true no matter what now.

                    However there is a psychological disorder people are diagnosed with if they believe their own body parts aren't them. Some people try to cut off their limbs because they think their limbs are somehow not their person and want to be rid of the alien thing on their body.

                    If this is some kind of "I am my soul" religious thing then good luck with your religion.

                    reply to this | link to this | view in chronology ]

                    • icon
                      nasch (profile), 18 Nov 2019 @ 9:05am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      In the "literally is its own antonym" sense what you said is true no matter what now.

                      Yes, but rest assured I never use it in that way.

                      However there is a psychological disorder people are diagnosed with if they believe their own body parts aren't them.

                      Quite true, but not related in any way to what the other guy was saying.

                      If this is some kind of "I am my soul" religious thing then good luck with your religion.

                      No idea where you got that from. This is an "I am not literally a sphincter and neither is anyone else" thing.

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                  • icon
                    Scary Devil Monastery (profile), 21 Nov 2019 @ 6:29am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    "There is no person who is an actual walking talking anal sphincter."

                    I've seen an even dozen or more highly placed white house staff and residents fitting that description though. A few of whom do look the part.

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        • identicon
          Anonymous Coward, 15 Nov 2019 @ 4:56pm

          Re: Re: Re:

          "I am certain that being called a douchebag is defamatory."

          ianal, but I thought that in the us, in order to be defamatory it had to be true.
          Obviously it is not true - right?

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 15 Nov 2019 @ 11:47pm

          Re: Re: Re:

          What about calling you a fat, sad, old, impotent, fuckwit?

          reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 18 Nov 2019 @ 5:00am

          Re: Re: Re:

          "I am certain that being called a douchebag is defamatory."

          Only if you can satisfactorily prove to a court that the accusation of being a "douchebag" is meant to convey that the target is, in fact, a physical hygiene product.

          Otherwise, as the OP describes, the accusation is considered opinion which, much like the epithets of "asshole" is protected as freedom of opinion and speech.

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    • identicon
      Anonymous Coward, 15 Nov 2019 @ 2:11pm

      Re:

      this part does seem to undermine their claim.

      reply to this | link to this | view in chronology ]

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    identicon
    Anonymous Coward, 15 Nov 2019 @ 12:17pm

    False-light defamation does not require a false statement of fact, but simply portraying someone in a defamatory light.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 15 Nov 2019 @ 12:47pm

      You mean like portraying a bunch of White kids who painted a racist portrait on a watermelon, named the watermelon after a majority-Black high school, and smashed the watermelon while behaving like monkeys — all actions that people would likely consider racist — as racist douchebags?

      Because that sounds less like “false-light defamation” and more like “the honest-to-God truth”. If the assholes don’t like how they’re characterized, they should do something about their character. Attacking the speech of those who accurately characterized what the assholes did only makes them look worse.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Nov 2019 @ 1:20pm

      Re:

      Have you threatened to rape anyone today bro?

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 21 Nov 2019 @ 7:36am

      Re:

      "False-light defamation does not require a false statement of fact, but simply portraying someone in a defamatory light."

      True but irrelevant.

      Example of false-light defamation: "<blah> is obviously a Klan member, i saw him dancing around a flaming cross dressed in white robes" - when <blah> did no such thing.

      NOT false-light defamation; describing a ritual hate ceremony with multiple key points traditionally and historically associated with racist behavior visavi black people - and calling it "racist".

      So we are not calling coming down on the white trash portrayed in the OP "defamatory".
      And neither is the judge who for some reason appears to have a better grasp on what constitutes defamation than you do.

      reply to this | link to this | view in chronology ]

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    identicon
    Anonymous Coward, 15 Nov 2019 @ 12:20pm

    So we have another litigant being called out on a "journalism" website and personally attacked while his case is being ridiculed.

    You'd think EVERYONE online is up in arms about all that stuff (like SLAPP laws), but it's really just a very small echo chamber that won't stray speechwise into territory it cannot control or censor.

    Rose McGowan accused a prominent attorney of offering to arrange to have her defamed online so that people who Googled her would find what the lawyer wanted planted. That is an example of weaponizing search engines.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 15 Nov 2019 @ 12:42pm

      we have another litigant being called out on a "journalism" website and personally attacked while his case is being ridiculed

      The case from these “litigants” rests on an idea that they themselves said is bullshit while on the record. They deserve ridicule.

      Rose McGowan accused a prominent attorney of offering to arrange to have her defamed online so that people who Googled her would find what the lawyer wanted planted.

      Can she prove her accusation? Because what she said sounds a bit defamatory to me.

      reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 15 Nov 2019 @ 12:43pm

      Re:

      With how the quality of this site (and its comment section) has slowly been deteriorating and increasing amounts of bias creeping into its content over recent years I'm just happy that it hasn't gone the way of Ars Technica yet (they used to do journalism too at some point).
      With how the media landscape has been transforming that's still something to celebrate and expectations of objectivity are in the current political climate no longer realistic I suppose.

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 15 Nov 2019 @ 12:48pm

        Go read Breitbart if you hate Techdirt and what it’s become so much that you have to keep coming back every day to tell us how much you hate it. Nobody here wants to hatefuck you, son.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 15 Nov 2019 @ 2:10pm

          Re:

          Must one choose?

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 16 Nov 2019 @ 7:57am

          Re:

          I pointed out my dislike for bias and polarising, which has become chronic in modern media and I've slowly seen begun worming its way here too after reading this sites content for about 7 years, in which I commented twice in total on an article and the first thing you can think of is proving my point by displaying a picturebook example of echo chamber mentality?

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 16 Nov 2019 @ 1:14pm

            Re: Re:

            "I pointed out my dislike for bias and polarising, which has become chronic in modern media"

            As if media in the past was devoid of all bias and polarizing.

            reply to this | link to this | view in chronology ]

          • icon
            Stephen T. Stone (profile), 16 Nov 2019 @ 1:30pm

            If you have a problem with polarising media, find media that isn’t polarising. If you have a problem with the direction Techdirt has taken, either be a better commenter (i.e., stop whining) or go find a different site. Exposing yourself to something you dislike (e.g., hatewatching, hatereading) will eventually have an effect on your psyche. And I can tell you this from experience: The effect is never good.

            reply to this | link to this | view in chronology ]

          • identicon
            Rocky, 16 Nov 2019 @ 3:35pm

            Re: Re:

            How about framing it better then, because your post came across as whinging rather than a thoughtful critique.

            It's easy, just frame what you want to convey as questions and use the answers:
            How has the quality deteriorated?
            What kind of bias has crept in?

            reply to this | link to this | view in chronology ]

            • icon
              Wendy Cockcroft (profile), 19 Nov 2019 @ 5:27am

              Re: Re: Re:

              None. We've all stayed the same while he moved further to the right. Whenever he leaves his echo chamber he finds himself in an alien world in which everyone appears to have succumbed to the evils of liberal socialism, in which all people are equal and it's not okay to abuse women, then expect them to keep quiet about it.

              reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 15 Nov 2019 @ 1:19pm

        Re: Bye Felicia!

        reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 18 Nov 2019 @ 6:35am

        Re: Re:

        If this isn't just general bitching, and you have a specific complaint about this blog post, why don't you share it? What did Tim get wrong? What is low quality about it? Don't just complain, do something to at least educate the rest of the audience.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Nov 2019 @ 1:18pm

      Re:

      That’s a pathetic strawman even for you Jhon boy.

      reply to this | link to this | view in chronology ]

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        identicon
        Sarah McLaughingstock, 18 Nov 2019 @ 6:32am

        Re: Re:

        Pathetic is when anonymous people are verbally aggressive like the little cockroaches they are.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Nov 2019 @ 11:48pm

      Re: Bring it in motherfucker.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 18 Nov 2019 @ 6:28am

        Re: Re: Bring it in motherfucker.

        So Mike is picking a fight with me by letting his audience verbally abuse me.

        Noted.

        reply to this | link to this | view in chronology ]

        • icon
          Toom1275 (profile), 18 Nov 2019 @ 9:24am

          Re: Re: Re: Bring it in motherfucker.

          [Asserts facts not in evidence]

          reply to this | link to this | view in chronology ]

        • icon
          bhull242 (profile), 18 Nov 2019 @ 3:40pm

          Re: Re: Re: Bring it in motherfucker.

          Even if true, failing to stop third parties from going after you isn’t “picking a fight”. It’s just not taking an action that would prevent you from being provoked.

          Besides, you went first.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Nov 2019 @ 5:07pm

          Re: Re: Re: Bring it in motherfucker.

          'Mike is picking a fight...'

          He's letting you dig your hole as deep as you want to go! What's wrong with that?

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 18 Nov 2019 @ 5:30pm

            Re: Re: Re: Re: Bring it in motherfucker.

            John Smith ignores advice to stop digging, then whines about the consequences of digging into a land mine. News at fucking eleven.

            reply to this | link to this | view in chronology ]

        • icon
          Wendy Cockcroft (profile), 19 Nov 2019 @ 5:28am

          Re: Re: Re: Bring it in motherfucker.

          Nobody is forcing you to post here. If you don't like it here, get out.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Nov 2019 @ 12:23pm

    Even if it were defamatory, nominal damages of a dollar (like what Trump got against USFL) would be appropriate.

    reply to this | link to this | view in chronology ]

  • icon
    Mononymous Tim (profile), 15 Nov 2019 @ 8:16pm

    Typical douchebag mentality

    The guiltier the conscience, the bigger the offense taken, because they're afraid people will believe it, and they're too stupid to realize that fighting it only makes them even bigger douchebags.

    Good job, guys! 👍

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 17 Nov 2019 @ 9:56am

    Maybe all they really objected to was the redundancy?

    reply to this | link to this | view in chronology ]

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    identicon
    Anonymous Coward, 18 Nov 2019 @ 6:33am

    Is Tim a lawyer? Is Mike?

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 18 Nov 2019 @ 6:36am

      Re:

      Is Tim a lawyer? Is Mike?

      Are you under the impression a law degree is necessary to comment on matters of the law?

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 18 Nov 2019 @ 6:40am

        Re: Re:

        No, but many state governments are with their UPL statutes. ANY lawyer can file a UPL claim, to protect their profession. Such a lawsuit would allow discovery into what's really going on underneath the surface.

        This isn't general commentary, but moves to specific cases with in-depth analysis that definitely raises a question for a jury. The extreme fixation on certain types of litigants and litigation is also questionable.

        There's talk about non-lawyers pretending to be lawyers, but what about the other way around, where lawyers use non-lawyers or pretend to be non-lawyers to avoid professional liability?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Nov 2019 @ 7:47am

          Re: Re: Re:

          IANAL

          If I were the subject of such an inquiry I would get a lawyer to file anti-trust, RICO, slapp, and any other remedy available to me against the bar association responsible for such an inquiry obviously designed to attack journalists and others discussing the law without claiming or offering legal services before courts.

          reply to this | link to this | view in chronology ]

        • icon
          bhull242 (profile), 18 Nov 2019 @ 3:56pm

          Re: Re: Re:

          No, but many state governments are with their UPL statutes. ANY lawyer can file a UPL claim, to protect their profession. Such a lawsuit would allow discovery into what's really going on underneath the surface.

          First, what is a UPL statute, and how is it related to any of this?

          Second, since Techdirt, Tim, and Mike are located in California, that really only matters if California has such a statute and that it could apply in this instance.

          This isn't general commentary, but moves to specific cases with in-depth analysis that definitely raises a question for a jury. The extreme fixation on certain types of litigants and litigation is also questionable.

          IANAL, but the ability to comment, even in depth, on particular cases or talk primarily about certain types of litigants or litigation is protected by the First Amendment. There is also nothing suspicious about preferring to comment on certain types of litigants and litigation.

          There's talk about non-lawyers pretending to be lawyers, but what about the other way around, where lawyers use non-lawyers or pretend to be non-lawyers to avoid professional liability?

          I don’t know for sure, but I don’t think there’s anything illegal about that. Also, professional liability can be avoided just by adding a disclaimer that states that nothing you’re saying constitutes legal advice, so that would be unnecessarily convoluted and possibly counterproductive.

          reply to this | link to this | view in chronology ]

          • icon
            bhull242 (profile), 18 Nov 2019 @ 4:23pm

            Re: Re: Re: Re:

            Just realized UPL stands for Unauthorized Practice of Law. In this case, someone claiming to be a non-lawyer (whether they are or aren’t or speaking on behalf of a lawyer or not) to make commentary (in-depth or not) about certain litigants or litigation without actually providing legal advice doesn’t constitute practicing law, unauthorized or not. Furthermore, a lawyer who is a member of a given state’s bar probably can’t do anything that would break that state’s UPL statute, as they are expressly authorized to practice law in that state. Though I could be wrong about that,

            UPL statutes are meant to prevent non-lawyers or lawyers not admitted to a given state’s bar or admitted to participate pro hac vice in a case in a given state from practicing law in that state (or, in the case of an admission pro hac vice, from practicing law outside of that case or related cases and without the assistance of local counsel). It’s possible that in some cases, they may restrict lawyers who are authorized to practice law in that state from practicing law outside of a given field, but that would be the only way UPL statutes would restrict lawyers licensed to practice law in a given state in any way. (Other statutes and/or ethical rules may impose additional restrictions, but not UPL statutes.) They are also not meant to prevent journalistic commentary or analysis of any given case or litigant by anyone, as that in itself doesn’t constitute any sort of practice of law as intended to be restricted by UPL statutes. These would include giving legal advice to particular client(s), representing someone besides yourself in court or a similar judicial proceeding, or falsely claiming to be a lawyer (or falsely claiming to have an active license to practice law in a given state or something similar). Commentary, analysis, or reciting facts or quotations from any case, law, statute, or contract does not constitute unauthorized practice of law unless you’re also falsely claiming to be a lawyer, and so they aren’t covered by any UPL statutes. Such things are also protected by the First Amendment, so unless something stated is a statement of fact known to be false by the writer and has defamatory meaning, is a “true threat”, breaks a contract, or infringes on copyright, it cannot form the basis of a lawsuit.

            reply to this | link to this | view in chronology ]

  • icon
    nasch (profile), 18 Nov 2019 @ 7:02am

    No, but many state governments are with their UPL statutes.

    Are you claiming that this blog could be an unauthorized practice of law?

    The extreme fixation on certain types of litigants and litigation is also questionable.

    Questionable in a "what someone chooses to write about is clearly protected by the first amendment" way.

    There's talk about non-lawyers pretending to be lawyers, but what about the other way around, where lawyers use non-lawyers or pretend to be non-lawyers to avoid professional liability?

    Do you have some reason to think that is happening here? There's probably some biographical information about Tim Cushing somewhere; do you see anything indicating he might have a law degree?

    reply to this | link to this | view in chronology ]


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