Wampum

Luskin’s Threatened Suit

by Dwight Meredith

As all of you know by now, Donald Luskin has threatened to sue Atrios for libel as a result of this post. The complete text of the post is:

Diary of a Stalker

By Donald Luskin.

-Atrios 12:45 PM

The text of the letter written by Luskin’s attorney to Atrios is here.

One definition of libel is:

A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.

One of the elements of a libel case is that the allegedly defamatory statement must be false. Statements of opinion can not be libelous. Only false statements of fact can be actionable.

Professor Balking suggests that Luskin’s suit will fail:

But read in context, Atrios' post is (a) not an allegation of actual criminal behavior, and (b) is a protected statement of satire and opinion. He is making fun of Luskin's own comparison of himself as someone who stalks Paul Krugman. Luskin's argument that Atrios has libeled him shouldn't survive a motion for summary judgment.

I agree completely. In addition, it seems to me at least that Luskin is in fact a stalker as my dictionary defines the verb to “stalk.” If so, then Atrios' post can not be actionable as it is true. My Britannica-Webster dictionary gives three relevant definitions of the verb “stalk.”

The first definition is “to hunt stealthily.” Luskin has been “hunting” Paul Krugman in the sense that he has repeatedly tried to show that Krugman is wrong, dishonest and not to be believed.

Has he done so “stealthily?” I think so. In his effort to prove Krugman a liar, Luskin resorts to simply making stuff up and misrepresenting the contents of government reports without revealing to his readers that he is doing so. That is sufficiently secretive to constitute “stealth” in my book.

The second definition of “stalk” is “to walk with a haughty or pompous bearing.” I find Luskin’s writing to be unbearably pompous. Whether or not others do is a matter of taste and opinion. As noted above, opinion is not actionable.

The third definition is to "follow usually in a persistent or furtive way.” It seems hard to argue that Luskin has not been persistent in following Krugman’s writing.

Thus, Luskin will have a difficult time proving an essential element of a claim for libel. He will not be able to prove that Atrios' post is false.

The next issue whether Atrios can be held liable for the statements made by others in his comment section. Professor Balking says no:

What the 9th Circuit held (and what the 4th Circuit also held before them) is that section 230 of the 1996 Telecom Act protects people who run websites from being sued for republishing the libels of another person. Section 230 states that " no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

So much for Luskin's lawyer's claim that the comments "constitutes libel per se, an actionable tort subjecting both the author and the publisher to liability for both actual and punitive damages."

It has been suggested that Luskin is threatening suit so as to reveal Atrios’ identity. Luskin’s lawyer writes:

Determining your identity for the purpose of making service of process can be easily accomplished through a subpoena to Blogspot.com.

That may not be so clear. David Glynn of Poor Attitude has a post up describing a time when he worked for a small internet service provider. A County Clerk was charges with embezzlement. In an attempt to locate material with which to impeach certain prosecution witnesses, her lawyer subpoenaed records of the local ISP, looking for the names of posters to a local message board.

The ISP hired a lawyer to fight the subpoena and filed a motion to quash (that is, to make the subpoena unenforceable). According to Bad Attitude:

The judge ruled against Priscilla Schrock in her attempts to force the internet service provider to reveal whatever information relating to the identities of message posters, stating that her right to collect information for her defense was not greater than the rights of message board posters to remain anonymous.

If that ruling is followed, Google (which owns Blogger) would not have to reveal Atrios’ identity in response to any subpoena Luskin's lawyer may serve.

Luskin’s proposed suit is a bad joke. It is frivolous in the sense that it has little or no legal or factual merit. It is also frivolous in that it appears to have an improper purpose.

I can not delink Luskin as 1) this is not my site, and 2) MB has more sense than to have linked to him in the first place. I have removed the link to Luskin’s employer, NRO, from the blogroll at PLA. I will replace the link if NRO finds the good judgment to disassociate itself from Luskin.

Posted by Dwight Meredith at October 30, 2003 09:14 PM | TrackBack