by Paul Alan Levy
About a year ago, the blogosphere was alight with discussion of an important statute of limitations decision from the federal court in Philadelphia, rejecting a libel suit brought by Arthur Alan Wolk, a well-known trial lawyer specializing in aviation accidents, against Walter Olson, a conservative blogger whose Overlawyered blog focuses on cases and lawyers that illustrate his support for the cause of tort deform and, indeed, his broad opposition to various forms of social legislation. Not content to pursue his arguments against that ruling on appeal, Wolk has filed a new lawsuit naming not only the original defendants but their lawyers and several other individuals and organizations.
In an April 2007 blog post, Olson’s blog questioned whether Wolk might have entered a settlement that underpaid his client to get scathing opinion about Wolk vacated, and whether the potential conflict of interest had been fully vetted. Wolk, insisting that the blog post was false in several ways, brought suit in May 2009 in Pennsylvania state court against Olson and others and invoked the discovery rule to avoid the one-year statute of limitations for libel suits by alleging that he had not discovered the critical blogs until he Googled himself in April 2009. The complaint itself set forth the blog post, and attached it as an exhibit, showing April 8, 2007 as the date of publication. The defendants removed the case to federal court and sought dismissal of the suit as untimely, noting that Pennsylvania, like most states, applies a one-year statute of limitations to libel claims. The court, accepting as true Wolk’s allegation about when he actually learned about the alleged defamation, nevertheless applied the mass media exception to the discovery rule and held that Wolk could not sue based on claims of ignorance about criticisms that were widely available to the public.
The principle here is an important one – it is all too easy for the target of criticism to claim that he didn’t hear of a particular article about him until shortly before he chooses to file suit, and almost impossible to prove when the plaintiff really learned about the article. Applying the discovery rule to such defamation claims would undermine the important protection that the fairly short limitations period provides. Indeed, because the decision provides important protections for the bloggers whose criticisms of corporations and political figures Public Citizen often defends, we considered filing our own amicus brief on the appeal. The public policies at stake are explained in the excellent Third Circuit amicus brief submitted by the Reporters Committee for Freedom of the Press on its own behalf as well as for several major media entities.
Wolk Opens New Fronts in His Attack on His Critics
Not content with taking his chances on appeal, however, Wolk has asked the trial judge to set aside her original order on the theory that, by moving the Overlawyered blog to a different blogging platform in 2008, changing the URL, and adding various tags, Overlawyered republished the 2007 blog post, and therefore should have disclosed that fact while the motion to dismiss was pending so that he could advance that argument.
He has also embarked on a campaign of new suits against the same defendants. First, he filed a state-court “suit in equity” that was promptly removed to federal court; according to the PACER docket, he recently dismissed that action. Then, a few days ago, he filed suit seeking both damages and injunctive relief against the original defendants and others, complaining that they failed to remove their original blog posts after they knew they were wrong because they had learned his side of the story (including support from other lawyers in the case), that they republished the original story at various times in 2008, and that the defendants bragged about having won on their statute of limitations argument even though, in Wolk’s view, they should not have. He also faults the defendants’ lawyers for having won on the statute of limitations even though their arguments were faulty and because they failed to disclose the 2008 republications in arguing that the suit based on the 2007 blog post was time-barred.
The newest suit, which unlike his original libel suit has been filed pro se, ups the ante in several respects. Wolk has sued two dozen anonymous individuals who posted comments about him on a Reason blog post that criticized Wolk for threatening to sue Reason; the complaint vaguely alleges that the anonymous posters accused Wolk of heinous crimes, but because the allegedly defamatory comments on the attached exhibit are blacked out it is difficult to assess the claim of defamation. Public Citizen often defends anonymous Internet speakers against subpoenas to identify them, although we choose our clients carefully because we agree that the illusion of anonymity that the Internet affords should not be a shield for deliberately false statements of fact. Wolk has also endeavored to block removal by adding several Pennsylvania residents (including lawyers), and he has apparently tried to prevent the original defendants’ lawyers from continuing in the case by suing them as well.
Questionable Aspects of the New Lawsuit
In addition to recounting at length the allegations that support his contention that the 2007 blog posting is false, the new action is replete with questionable claims. For example, although Pennsylvania is one of several states that adheres to the hoary doctrine that “equity will not enjoin a libel” (the Supreme Court has yet to address this question), a major thrust of Wolk’s new complaint is for injunctive relief compelling the removal of all of the blogs that he claims are defamatory. And although the act of defamation is complete once the allegedly defamatory matter is first published, and the “single publication rule” forbids the bringing of successive claims based on the continued availability of the publication, a major thrust of his new complaint is that Olson and others were legally obligated to remove the posts once he apprised them of facts that, he alleges, told them that the original publication was false. If Wolk is correct on the facts, it would certainly be more responsible for bloggers to acknowledge their error, but there is no continuing legal duty to revise an existing publication that the defendant has learned was erroneous. Indeed, in some ways the new complaint undercuts Wolk's original libel suit by charging that the authors of the Overlawyered blog "never bothered to check the facts before posting the [underlying] blog [post]." Wolk is unquestionably a public figure, and a failure to investigate is negligence, not the actual malice that is needed to sustain a libel suit by a public figure.
And however strongly Wolk may believe that the statute of limitations ruling was in error, or even that it was obtained by improper non-disclosure of facts, it is not defamatory to blog about a litigation victory, to express the opinion that Wolk’s lawsuit was untimely, and to make fun of Wolk by suggesting that a ruling finding that he did not file his own lawsuit in time reflects poorly on Wolk’s ability as a plaintiff’s lawyer. Similarly, Wolk repeatedly complains that, in describing the ruling against him, some bloggers referred to his either not seeing or claiming not to have seen the Overlawyered blog post about him. As confident as Wolk may be in his own veracity, others are not required to take him at his word, and in any event, these references relate as well to the underlying policy problem with applying the discovery rule. Regardless of whether Wolk’s claim about when he saw the post is accurate, it is simply too easy for any libel plaintiff to claim not to have seen a widely available publication and hence to evade the statute of limitations.
The Worst Aspect of the New Suit
But to my mind, the most obnoxious aspect of the new lawsuit is the transparent attempt to interfere with the defense of the libel suit by joining the defense lawyers as defendants in the case. Not only does this create a potential conflict of interest between the defendants and their lawyers, but it also poses the possibility of making the lawyers witnesses in the case. Yet it appears that the lawyers were doing no more than providing zealous representation to their clients by making reasonable legal arguments in defense of their clients’ free speech. The date of the blog post was set forth in the complaint; defendants were entitled to argue for dismissal based on that date. Nor is such litigation necessary: if Wolk believes the lawyers engaged in litigation misconduct, he is free to seek sanctions against them from the judge before whom the alleged misconduct took place.
To my mind, changing the blogging platform and tags without changing the content does not constitute a new publication, though perhaps that is a litigable issue. But the lawyers’ failure to mention the changes — even assuming they knew about them — does not seem to me the sort of deliberate withholding of evidence that would warrant sanctions not to speak of tort remedies.
By suing the lawyers — the very sort of attack that Wolk complains about when directed against plaintiffs-side trial lawyers by the tort deform crowd — Wolk has forfeited any claim to sympathy that he might otherwise have had based on his contentions about the falsity of the original Overlawyered blog post. I was inclined to give him the benefit of the doubt on the merits of what Olson's blog said about him, although not on the actual malice or limitations issues. But no more.
2. When I criticize people online, it is my practice to notify them so that they can have a fair chance to post a response. I did so with Wolk (and Olson). Seven minutes later, I received the following response:
Knowing nothing at all about the facts you criticize my lawsuit? I hope you have insurance.
Today I received a summons indicating that Wolk has initiated a new action in which I am named as a defendant, along with Public Citizen, Inc., Public Citizen Foundation, Inc., Public Citizen Litigation Group, and citizen.org. No actual complaint was served with the summons.
I shall have more to say about this matter later, after I see the new complaint. Suffice it to say that although I much prefer to appear in litigation as a lawyer rather than as a party, and although I am aware of some bloggers who have decided not to post about the new lawsuit because they are worried about being named in further suits, I do not intend to be silenced by being named in this action.
On August 8, Wolk dismissed the writ of summons proceeding in which Public Citizen and I are named as defendants, but told me the same day that he is "assembling a lawsuit against you and others that will be filed shortly." I expect to post further about that soon.