The Cure For Hurtful Speech Is Not The Courts

There have been three incidents that I know of where bloggers have been threatened with libel litigation for what were essentially political speech.

Luskin v Atrios

Niewert vs. Wizbang (in this case, Niewert just advocated libel suits against Wizbang)

And now, we can add another – MEMRI vs Juan Cole

I publicly oppose all three.Cole doesn’t make it easy on me; his post recounting the threat is headlined “Intimidation by Israeli-Linked Organization Aimed at US Academic.” Of course the fact that it’s an Israeli-linked organization makes the crime far, far worse – in Prof. Cole’s eyes.

But as far as I am from supporting Cole – and I’m really, really far from supporting him (I have a post in the blog queue about despicable Columbia professor Joseph Massad and Cole’s support of him) – I can’t remain silent when someone, even someone I admire like MEMRI, uses the heavy hand of the law to attempt to quash what is essentially political speech.

I think Prof. Cole is flat wrong about virtually everything he says about MEMRI. I think that his responses to MEMRI’s challenges are laughable. Ali, of Iraq the Model has recently taken him to school on Iraqi history.

But in lawyering up and trying to intimidate Cole into silence (as opposed to shaming him with facts, which would be a good thing) MEMRI has gone too far.

I’ll be emailing a copy of this post to Yigal Carmon at MEMRI, and I’d encourage my readers to let him know what you think as well.

39 thoughts on “The Cure For Hurtful Speech Is Not The Courts”

  1. You’re right, all down the line. Juan Cole is another homorless “anti-Zionist” sophist, rendered obsolete by the invention of the Chomskybot. He hates MEMRI because the truth hurts.

    But of course MEMRI should not sue him, nor do I think such a suit would ever be filed after a minimal amount of competent legal advice. Cole waxes indignant about the suppression of the Israeli media (as if that were MEMRI’s doing) and assumes that stomping out free speech is typical (ahem) Israeli practice. But Carmon’s approach is typical of a lot of European countries, where it’s easy to sue for libel and everybody is always threatening to do it.

    It’s funny to see Cole claim that MEMRI is violating the intellectual property of Arab writers. If those crazed, homicidal Egyptian editorials constitute “intellectual property”, then I’m glad I don’t have any.

  2. You know, if you wanted to have a good laugh, you could compare and contrast [h]At[e]rios reaction to the threatened Luskin/Atrios suit, with his reaction to the threatened MEMRI/Cole suit. If hypocrisy was a tangible substance, he’d be covered in oozing, clammy orange-green slime right now…

  3. A word of explanation for the above is in order – sorry. In the Luskin matter, our pal Atrios stood behind the First Amendment and said his commenters were free to speak out. In the Cole matter, he’s arguing that the demand letter received by Cole – an activity protected in some large part by MEMRI’s free speech and due process rights – is a violation of the law.

  4. Actually, I believe Cole is not wrong about the role of Fallujah in the 1920 revolt; more importantly, he’s right about the power of the event. Leachman was killed by the al-Dhari clan in Fallujah, and it was a highly symbolic event. And, of course, there’s the fact that history tends to be written by the victors … so it has perhaps assumed a larger role as a result of Sunni dominance of the country. Cole would acknowledge that.

  5. Seems doubtful that MEMRI would pursue legal action. A libel suit is expensive, grueling, and opens one up to discovery of a kind that most people want to avoid. And given the nature of Cole’s statements, there’s a very good chance they’d be viewed as protected opinions rather than false statements.

    The threat is probably just extra verbiage they tossed in for effect.

  6. praktike

    bq. _”And, of course, there’s the fact that history tends to be written by the victors”_

    That’s partially the problem. Seems to me we’ve had this discussion about history and the perception from those that lived it versus those that report or document it. Seems somehow someway somewhere something always gets lost in the translation. I can only imagine 100 years from now how society will deal with every political pundits book written today as opposed to the historical evidence that refutes most as lies and speculation.

    As for the libel lawsuits until people come to their senses we will continue to spend huge amounts of money because the coffee was hot and no warning sign was on the cup. So excuse me for smoking it’s the tobacco company’s fault. Excuse me for being fat it’s the fast food industries fault. Excuse me for being violent it’s the MSM’s and movie industries fault. Until we see these inane circumstances for what they truly are we will continue to grovel and beg forgiveness all the while believing we have no control or responsibility over what we do or say. It’s always some lame excuse or somebody else’s fault.

  7. I’m with the coffee woman. A business hands you the cup filled with that super-hot coffee out the take out window, they should be sure the lid is secured properly. Either that, or they should hand you the cup and the lid so you can do it yourself.

    And if you don’t think getting scalded by boiling coffee on your sensitive bits is a serious injury, try it out on your own bits at home.

  8. Dingo

    It’s not the hot coffee that’s the problem. If you spill it on yourself you are the one to blame. If someone else spills it on you it’s an entirely different matter. The questions now lead to intent, neglect and malice.

  9. As in any lawsuit, the question of fault lies in the facts. There’s no rule of law that absolves a vendor of liability for any injuries caused by their product after it leaves the vendor’s possession. Nor should there be, since doing so would encourage vendors to make products that survive an inspection by a buyer but may fail in their primary purpose once employed by the buyer.

    You put a lid on a cup of coffee to keep the coffee inside the cup while it is being moved. If she was tossing the cup around like a football, that’s one thing. But if she’s moving it across her lap and it flips off, spilling the coffee, she would have been better off not having the lid on at all. Putting a lid on improperly is really the worst thing to do.

    Unfortunately, I think I’m getting to get slammed for going off topic here. So I apologize in advance….

  10. Praktike

    It’s not the coffee that’s the issue. It’s the inane lawsuits. Urban legend or not it’s that mentality that leads others to believe they truly have a claim. Which is my point concerning the lawsuits mentioned by A.L. As long as we as a society entertain the thought that we have no responsibilities for our own actions we will continue down this path of sheer lunacy.

    As for Dingo’s claim you ordered the hot coffee so you assume the responsibility for handling it properly once it is in your care. One only need to be burned by the stove once to ensure it’s off prior to placing your hand on it again. But then again maybe I should sue Westinghouse for not telling me the stove gets hot.

  11. Look, the coffee was 180 friggin’ degrees, okay? That’s absurd, and they admitted they hadn’t thought about the safety issue; it was made that hot for taste.

    McDonalds refused to settle for $20K, so they went to court.

    There are frivolous lawsuits out there, but this isn’t one of them.

    If Westinghouse makes a stove that heats to a jillion degrees and burns the f*ck out of you when you get near it, it’s their fault.

  12. Praktite

    Now I’m going ask the stupid question. Would you put a hot cup of coffee between your knees at home? I suppose we sue the wife now because she gives her husband a hot cup of coffee while he sits in his easy chair watching the news. Since the end table is cluttered with the remote, newspapers, junk mail a reading lamp, ashtray, cigarettes, and lighter he would do such a silly thing. Better yet let’s sue the Mr. Coffee for making the coffee hot. Wake up and smell the coffee! In this case hot is relative but I would certainly hope an elderly lady knows the difference between freezing, cold, warm, tepid, hot! This is what I mean about lunacy and accepting responsibility for your own actions.

  13. I thought the point of the “hot coffee” suit was that McDonald’s had received warnings about their coffee temp before, but deliberately kept it at 180 degrees so that it would still be hot when you got wherever you were going.

  14. I am damned tired of seeing that stupid, fallacious truism.

    History is not written by the winners. History is written by the historians. Athens lost the Peloponnesian War, but Thucydides who wrote the account, not some hypothetical Spartan scholar. The Union won the American Civil War, but it was the Southern Historical Society which put its stamp on the ineradicable popular perception of the “Lost Cause”. The Soviets crushed the Wehrmacht, but it is through the eyes of von Mellenthin that we most clearly see the vast wreckage of Kursk.

    History is not written by the winners; it is written by the historians.

  15. Cole is correct in MEMRI’s slant, or cherry-picking data, however. That needs to be noted. “Here’s an example”:http://www.juancole.com/2004/11/intimidation-by-israeli-linked.html

    Also people here seem to forget when Cole says things that people here would agree with – for example, going forward with the voting, but not being able to vote in the Sunni area, he suggested a slate based on percentages. Like most, he sees elections as crucial to any chance of success. Also, he never fails to call a large part of the insurgents amoral killers, of the worst sort.

    Coffee

    I’ll need to find the cite on the coffee case – but there was an outstanding history of mcdonald’s coffee giving people burns – 180 degree is simply too hot – dingo, do you really want to stand behind this stupid urban myth? You are simply incorrect here. Best to admit it, get the issue past, and get on to more important things.

  16. Can’t we as a society expect people to understand that coffee is HOT, and it’s supposed to be HOT, and in fact wouldn’t even be the same product if it wasn’t HOT. This is the perfect example of litigation run amuck. This is where all the stupid disclaimers come from.

    How specific must they be, when “Coffee is HOT” not enough? Do we really need “Don’t place HOT coffee between your legs and squeeze”? If this had been written on the cup, would McDonalds have won the lawsuit? Isn’t there a practical limit beyond which you must assume that a competent adult doesn’t need mollycoddling?

    Anybody remember the Asimov story where an ever expanding army of robots infantilized the entire human race simply by removing all risk and responsibility?

    Personally, I like I good cup of HOT coffee. I’ll gladly assume the risk of enjoying one. Lawsuits like the McDonalds coffee one, if successful enough, would eventually take that right away from me. Would this really be better than expecting folks to understand what HOT means?

    BTW, here’s a tip on brewing coffee:

    What is the “perfect” brewing temperature for a “perfect” cup of coffee? What temp should a cup of coffee be served at?

    The correct brewing temperature is between 195 F and 205 F. This is for the temperature of the water that is being distributed on top of the ground coffee. I measured the temperature on our Bun machine here in the office and it was 198 F. By the time it gets to the carafe it is down into the 180s and that is perfect.

  17. JC-

    “dingo, do you really want to stand behind this stupid urban myth?”

    Uh, I’m not sure what I’m supposed to be standing behind here. But I can say with regard to all lawsuits, including the potential MEMRI claim, that what often gets reported is filing the suit, not the dismissal of the suit later after a defendant’s motion to dismiss.

    Here, the threat of litigation won’t be enough to stop Cole unless his lawyer believes MEMRI has a cognizable claim and that the potential damages of the ensuing lawsuit will be much higher than the cost of defending it.

  18. I know the coffee is off topic, but this comment REQUIRES a rejoinder anyway:
    “the Asimov story where an ever expanding army of robots infantilized the entire human race simply by removing all risk and responsibility”

    The story is “The Humanoids”, orignially published as “With Folded Hands…” the author was Jack Williamson. Frivilous lawsuits may be interesting, but getting your facts straight about science fiction stories is IMPORTANT

    ;-)

  19. As I’ve said elsewhere, Cole has my vote on this one. I don’t like Cole or his opinions, and I think he often uses his genuine expertise on Iraq to pretend to a false expertise on Israel and advance his anti-Israeli political positions. (His implied assertion that MEMRI’s lawsuit is an official, Israeli-organized attempt to silence him is a case in point.) With that said, however, MEMRI’s attempt to intimidate him by threatening legal action is despicable and should be opposed no matter what one may think of Cole’s (or MEMRI’s) politics.

  20. Oscar,
    Sorry for the mistake! Thank you for correcting the record. It is horrifying to think that this could have lived an an internet archive forever. ;-)

  21. Lurker

    You forgot that identifying science fiction stories incorrectly with an SF fan is like getting a player’s career batting average wrong around a baseball fan.

  22. I don’t agree with what MEMRI’s doing, but Cole is an utter loon on the subject of Israel. His attempts to link the Abu Ghraib prison scandal and the April violence in Fallujah back to Israel were simply speaking over-the-top, something I’ve seen few of his fans admit.

  23. Dingo – errp! Sorry, wrong guy – my error…

    “Abu Aardvark some thoughts about MEMRI here”:http://abuaardvark.typepad.com/abuaardvark/2004/11/dear_memri.html

    I’m glad A.L., that you oppose the attempt to silence Cole – but really, _I think Prof. Cole is flat wrong about virtually everything he says about MEMRI_, would you stand by that, in reference to this one particular criticism of MEMRI, by Juan Cole and Abu Aardvark? That MEMRI consciously picks and chooses to highlight examples of Arab press, that back what MEMRI pre-claims is happening in the Arab press?

    Even if you put a different spin on it, you must admit that MEMRI does this.

  24. Cole accused MEMRI of being an anti-Arab propoganda machine. Its not something that one can respond to with facts because Cole insulted MEMRI’s integrity and its motivations. I don’t know a lot about MEMRI’s finances, but MEMRI is in some kind of business (perhaps financed by gifts) that translates arab into english. If its work is undercut by accusations of bias — which most of its non-arab-speaking consumers are in no position to judge — then its business will fail. This situation is a bit different than most of the opinion providers that make up the blogosphere. They are supposed to be biased.

    I would also add that most libel lawsuits are brought to “set the record straight.” Sometimes, the plaintiff only ask for $1 in damages. Would that make a difference to anyone?

    Patrick

  25. JC: “MEMRI consciously picks and chooses to highlight examples of Arab press, that back what MEMRI pre-claims is happening in the Arab press …”

    Transcribing the entire output of the Arab press is not an option, so what are you suggesting? That these things are not happening in the Arab press (MEMRI invents them?) or that it’s politically incorrect for MEMRI to point them out?

    I’m sure there are thousands of articles published in the Middle East every day that do not, for example, advocate biological warfare against Israel. The very many articles that do advocate such things – often in official state publications – are the ones that ought to concern us, and these things were largely invisible to the West until MEMRI came along.

    If Cole and others think that the Middle East media is being mischaracterized by MEMRI, then why don’t they start their own media project? They could translate all the Saudi articles that advocate peaceful relations with Israel, and all the Friday mosque sermons that urge tolerance and understanding of non-Muslims. Except that MEMRI – which actively searches for such things, in spite of what Cole thinks – would beat them to it.

    The truth is that people like Cole agree with pretty much everything in the articles that MEMRI presents, except for the graphically blunt and violent tone. They don’t want peace, love, and understanding – they want relentless political war against Israel. And they don’t like it when someone points out what kind of company they keep.

  26. PD Shaw

    As the link in my previous post shows it is difficult to obtain damages in cases of libel. The $1 figure makes little difference. As you say most cases are brought before the courts to set the record straight. The lawsuits by the those that A.L. has pointed out will most likely not even pass the test of libel. My opinion is the suits were filed strictly for publicity sake and nothing more. As I stated before it’s the frivolous lawsuits like these that do little more than tie up our judicial system.

  27. Worth mentioning at this juncture that a frivolous lawsuit can either cause the lawyer to be sanctioned by that court under “Federal Rule of Civil Procedure 11″:http://www.wvnb.uscourts.gov/frcp.htm#rule11, or reprimanded by his/her state bar under the state equivalent of “Model Rule of Professional Conduct 3.1″:http://www.abanet.org/cpr/mrpc/rule_3_1.html or both.

    Even if the amount in question is $1 it still represents time and expense to the court system. While the use of Rule 11 as a weapon can itself be frivolous — it may be a worthwhile motion if the suit is this egregious or if it’s simply meant as harassment. Although it’s not as easy to apply Rule 11 sanctions — see In re Kunstler, 914 F.2d 505 (4th Cir., 1990) (i.e., William Kunstler) — it’s still on the books, FWIW.

  28. I suppose we can all disagree with the merits of MEMRI v. Cole — that’s what lawsuits decide, right?

    I do want to point out that the purpose of lawsuits is not necessarily to award money — they are for conflict resolution. Not all conflicts are readily quantifiable, particularly ones involving intangibles. Libel lawsuits protect reputations. A $1 verdict can patch a reputation as convincingly as anything short of a retraction.

    I would also point out that this type of reputaton-affirming litigation has been around hundreds of years. Abraham Lincoln handled lots of lawsuits involving the alleged sexual exploits of people in his community. See http://jala.press.uiuc.edu/16.2/steiner.html. If anything, Americans are less litigious on issues of reputation than they were 150 years ago.

    Patrick

  29. _They could translate all the Saudi articles that advocate peaceful relations with Israel, and all the Friday mosque sermons that urge tolerance and understanding of non-Muslims_

    That book would be as thin as _Mafia Members Who’ve Died of Natural Causes_.

  30. If someone has a libel/defamation suit, they would have some steep hills to climb. For one thing, their lawyers would have to show that their client has suffered actual harm, that they are not a public figure — see Gertz v. Robert Welch; hell, see Falwell v. Flynt — and that the purpose of the suit is not to chill public speech, since a number of SLAPP statutes are on the books. Then there’s the fact that the blogger could file a counterclaim for his/her legal fees and other damages: the defendant can very well sue the plaintiff in the same action.

    There’s also the court of public opinion, and if you are indeed a lobby or public interest it may reflect poorly if you’re suing someone because you don’t like what they say. Not a point of law but the whole point of lobbying is to elicit sympathy for your cause, right? And not the other side?

    BTW, Anthony Lewis’ “Make No Law”:http://www.amazon.com/exec/obidos/search-handle-form/002-4878239-5418404 tells about the 1964 Sullivan case, the major case in this area, a public figure suing to stifle free speech and getting a comeuppance.

  31. BTW – Since a website can be viewed in almost any country in the world, an internet writer could theoretically be sued for libel under any kind of libel laws that exist anywhere.

    Similarly, a writer living in the US could in theory be indicted by a Saudi court for posting materials that are illegal in Saudi Arabia – not just obscenity, but any kind of Christian or Shi’a material.

    All of which is not as scary as it sounds, because unless they indict or sue you where you live, they’re just wasting their time. And suing Cole for libel in the US – on the basis of speech which is obviously political – would equally be a waste of time.

    This is the interesting thing: MEMRI threatened to sue the University of Michigan. If U of M had assets or investments in Israel, they might actually be somewhat vulnerable to a libel suit in Israel. Cole, of course, is a tool of the divestment cult. Is MEMRI doing his job for him?

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