Cyber-Slapp

wsj ^ | April 10, 2008 | JAMES TARANTO

[george76]

Kathleen Seidel is a New Hampshire mother of two. She runs a blog, Neurodiversity.com, about autism--a topic of special interest to her as one of her children had an "autistic spectrum diagnosis." There is a theory that thimerosal, a preservative formerly used in vaccines, causes autism. Seidel has written skeptically of that theory, and of the trial lawyers who have sought to cash in on it.

Last month one of those lawyers, Clifford Shoemaker, had Seidel served with a subpoena demanding that she report for a deposition and produce a voluminous collection of documents, described in her motion to quash the subpoena:

" The subpoena commands production of "all documents pertaining to the setup, financing, running, research, maintaining the website ..."

Seidel's response raises some tricky legal questions--for instance, whether independent bloggers have the same legal privileges as journalists (privileges that, at least in federal court, rest on fairly shaky ground to begin with).

Assuming that Seidel's representations are accurate, this is a classic Slapp, an acronym for "strategic lawsuit against public participation." Such legal actions may become more common as citizens increasingly participate in public debates by way of blogs and other Web media.

From reading Seidel's brief, it is clear that she is either savvy or well-advised about the law. But many bloggers probably aren't, and would be intimidated into silence by such an effort. It might behoove the ACLU, or some organization devoted to civil liberties, to devote some resources to figuring out how to defend speech that is inconvenient to plaintiffs lawyers.

[Constitutions Grandchild]

Now THAT’S a scary story. Very, very scary.

[McKayopectate]

Damn straight! This could extend into the political arena. The First Amendment will take a serious beating.

Can we secede a portion of the country and start our own?

[Constitutions Grandchild]

I truly don't want to be a prophet of doom, but I pray that this isn't the beginning of something as sinister as what has been going on in far too many black communities’ churches, resulting in more Duke-type cases. Looking back on our case, (Duked and Nifonged before it became a popular turn of phrase), I realize we were the canary in the mine. This present article is beginning to raise the same hair on the back of my neck. If the canary dies, we're in for a bumpy ride. We need a spotlight on this one.

[DB]

While there are exceptions, in general I hate lawyers.

[BIV]

Well, it is a classic SLAPP. Georgia and California, and a few other states, have anti-SLAPP statutes with punitive “slap back” provisions. There is no federal analogue except maybe, and then weakly, the “Noerr Pennington” Doctrine. But at least one federal case I am aware of in California adopted the California anti-slapp rule.
I oppose any so-called journalistic privilege. Evidentiary privileges have always been limited because they tend to subvert the truth-finding function of juries and courts. Protecting an informant just doesn’t rise to the level of sanctity of communication as that between spouses, client/attorney, priest/penitent, etc.

[BlazingArizona]

Can anyone explain how a SLAPP suit does NOT violate the First Amendment? Seems to me that any judicial order enjoining a person from speaking freely on a general-interest political topic would be an automatic violation.

[Minn]

It might behoove the ACLU, or some organization devoted to civil liberties, to devote some resources to figuring out how to defend speech that is inconvenient to plaintiffs lawyers.

Sure. The ACLU will get around to that as soon as they are done fighting the publicly financed Muslim school in Minnesota.

[G Larry]

“all documents pertaining to the setup, financing, running, research, maintaining the website ..”

Dear Jerk,
There is NO DOCUMENTATION pertaining to setup, financing, running, or maintaining the website.
Please find attached all of my research files proving that your pursuits are fraudulent.
Bye Bye!

[Constitutions Grandchild]

Not sure why that came to me, as I have exactly the same impression of the ACLU’s dedication to true free speech. I may be unfair to the ACLU, as heretofore there weren't too many conservatives who were being stopped from exercising their rights. It was usually those minorities who had out of the mainstream things to say.

You may have noticed the roles have changed. Conservatism is no longer mainstream. I always was a pair of brown shoes with a tuxedo. Haven't been able to fit in since I left high school (and it was starting to get uncomfortable there way back then).