by Paul Alan Levy
As I noted in an update to my previous blog post about him, Arthur Alan Wolk responded to the post by threatening to sue me, and then suing me three days later, albeit without filing an actual complaint that would tell me the basis for his complaint against me. On the same day, he threatened to sue another lawyer blogger, Scott Greenfield, and two days later he threatened to sue the Techdirt blog.
This time, however, Wolk had a new experience. Instead of expressing concern about his threats, Techdirt, Greenfield and Public Citizen have defied him, promising not to be silenced.
Last Sunday night at 10 PM, Wolk filed a praecipe to discontinue the lawsuit that he had filed against Public Citizen and me. Because he had previously dismissed the lawsuit that I originally criticized, this meant that there was no longer any lawsuit pending against the Levine Sullivan firm and various others of the defendants named in that suit. Wolk did, however, follow that up this past Monday with the following warning:
I am assembling a lawsuit against you and others that will be filed shortly. Many, based on your incredible misrepresentations, have followed suit to continue this non-stop defamation of a person who has done more for the protection of the rights you claim to support than your organization ever dreamed of.
You owe me a public apology for not getting the facts right and then twisting them to damage me in my efforts to make sure that people who need it are compensated for aircraft accidents caused by the manufacturers who through manipulation of our Government get away with murder. I have raised a thousand children , helped countless widows to pay their mortgages and health care and for food. How dare you diminish my work and libel me like you did!
I am appalled that knowing of my efforts and zeal to protect my clients that you didn’t at least reach out to me and get the facts. All you did was ask to see the exhibits which no doubt you would have published so that the false accusations of heinous crimes would be all over the internet again. There are protections you should be fighting for that should protect people, citizens, children and others from internet and stalking and bullying. Instead you became a participant. Shame on you and your organization. Failing to get the facts straight for a lawyer is malpractice, but for someone who claims to be on the victims’ side, it is worse.
For the moment, however brief, you are not a defendant but what you should do is correct the record so I don’t have to divert my resources and attention to something that never should have been published.
I responded by asking Wolk to specify what facts he contends I got wrong. I have heard nothing from him since then, although I have continued to address his actions in other forums (here and here). And neither Techdirt nor Greenfield has been sued, or received any further threats.
This leads me to wonder whether Wolk has finally come to the recognition that filing libel suits against his critics is not always the wisest way to respond to criticism. In fact, I found it encouraging that Wolk posted a comment on the Volokh Conspiracy, taking issue with a blog post about the denial of Wolk’s motion to vacate based on the alleged “fraud on the court.” Assuming that Wolk believes that he has persuasive arguments against the speech he doesn’t like, his best remedy ought to be more speech.
Wolk’s Specific Contentions Against Techdirt
Although Wolk has never told me the basis for his libel claims against me (other than his apparent belief that, as a consumer advocate, I should never criticize a champion of the widows and orphans of airplane crashes), his threat of litigation against Techdirt leads me to question his understanding of libel law. In pertinent part, Wolk said this:
You relied I believe on an equally erroneous posting by Paul Alan levy which is why he is now sued. Let me be very clear. I believe in the First Amendment but at the same time your abuse of it will not stand without a fight. I gave everyone including Mr. Levy and all the defendants in my lawsuit the opportunity to correctly report what they want and each declined. Fix this lying false and absurdly malicious article or I will sue you.
I filed my original lawsuit on time. The judge was defrauded. The record is clear on that and if you had made even the slightest effort to read the complaint, read the Rule 60 Motion or anything else before running off at the mouth you would have known that. I am giving you the opportunity to correct your site without liability for your libel.
(A nitpick perhaps, but Wolk’s statement about giving me the opportunity to correct my report is inaccurate. Indeed, I wrote to him before I posted to seek information about one aspect of his lawsuit; he never responded. And his threat to sue me contained no specific statements about what he disputed and what he demanded I change)
Perhaps I am reading this too closely, but I understand Wolk to be telling Techdirt that its libel lay in disagreeing with Wolk about two statements: that Wolk’s original libel suit was filed on time, and that Judge McLaughlin was defrauded.
If that is all the threatened libel suit is about, Wolk would lose as a matter of law. Both of these are largely questions of law and not questions of fact. To be sure, there are underlying questions of fact – when did Wolk file his lawsuit? When was Frank’s content first posted on the blog? What changes were made on the blogging site during the year 2008? Did defense counsel tell the judge about the changes? But so far as I know there is no dispute about those facts. The disagreement is about the legal consequences of those facts. Techdirt’s statements about those legal questions are opinions that not only are not actionable under Pennsylvania law (or the law of any other state) but, indeed, are protected by the First Amendment given the key principle that, under the First Amendment, there is no such thing as a false idea.
There are other serious problems with Wolk’s claim that he can sue Techdirt for disagreeing with his contention that Judge McLaughlin was defrauded. First, as Techdirt’s second blog post about Wolk points out, Judge McLaughlin rejected Wolk’s 60(b) motion, suggesting that she does not feel that she was defrauded. Moreover, neither Techdirt nor I has accused anyone of fraud; it is Wolk who is accusing the lawyers for his litigation adversaries of fraud. If anyone has published a libel, it would be Wolk (his briefs to the Court are absolutely privileged, of course, but his threatening communications are not). The statement that lawyers other than Wolk have committed fraud is not “of and concerning” Wolk, and under libel law a plaintiff may only sue over statements “of and concerning” the plaintiff. That is, in fact, a condition of liability under the First Amendment. So, if the two statements identified in his threatening communication to Techdirt are what Wolk is threatening Techdirt over, his lawsuit would be frivolous.
Indeed, if I am reading his contentions correctly, one may well question whether Wolk has a firm grasp of modern libel law. He is, to be sure, an aviation lawyer, so perhaps it is not fair to demand expertise in this very different area of tort law. Still, he has been a plaintiff in about a dozen libel suits by now, so one would have expected that he would have picked up the rudiments by now.
Wolk’s Threat to Scott Greenfield
Questions about Wolk’s grasp of libel law are further confirmed by his public exchange with Scott Greenfield, a New York criminal defense lawyer and blawger who posted what seemed to me a pretty thoughtful piece entitled “Why Lawyers Can't Control the Web” and drawing together the cases of Joseph Rakowsky, Joel Hirschhorn, and Arthur Alan Wolk. He suggested that many lawyers don’t understand the interplay between their legal contentions and sound public relations considerations. Before quoting at length from Wolk’s (now dismissed) complaint, Greenfield said this: “Unlike Hirschhorn, Wolk sounds terribly sad and pathetic, an old lawyer trying to salvage his dignity in a world he doesn't know or understand, slinging some wild nastiness.”
Wolk replied directly on Greenfield’s blog (as I had invited him to do on mine), but instead of addressing the facts his focus was on Greenfield’s adjectives:
“I am the pathetic old lawyer trying to salage his dignity you claim by suing internet stalkers and bullies like you.
This old pathetic lawyer got an 89 million dollar verdict last year and has over one billion dollars in verdicts and settlements for air crash victims.”
Wolk then went on to say,
“I don't mind honest criticism, but what you said about me is dishonest and a lie. Take the vindictives down and say you're sorry or join the crowd. Don't complain that I didn't give you a chance.
I hope you have insurance.”
Greenfield’s response, challenging Wolk to file suit, is classic and worth a read as well.
Does Wolk really believe that he can bring a successful libel suit over Greenfield’s use of “vindictives” (which, in context, plainly refers to the phrases “sad and pathetic . . . old lawyer”). This is name-calling plain and simple, and one thing that is clear from libel law is that this sort of name-calling is non-actionable opinion. So again, Wolk is threatening a libel suit he cannot possibly win on the merits.
An additional lesson can be drawn from the way his libel litigation is now being conducted. Wolk’s original lawsuit against Olson and others was filed by a Philadelphia law firm on Wolk’s behalf; those lawyers filed the Rule 60 motion on Wolk’s behalf, and are still representing Wolk on appeal. Wolk’s most recent suit against Olson — claiming that he reached a settlement with Walter Olson and trying to enforce that — was also brought for him by counsel. But not even any of the junior lawyers in the Wolk firm have put their names on his new lawsuits against other defendants, perhaps because they are looking down the road to the Dragonetti Act stage of the case when the victims of Wolk’s libel litigation can turn the tables on him and proceed against him for damages and attorney fees, invoking a special Pennsylvania law that allows such countersuits. Even lawyers may be joined as defendants if their culpability is sufficient. The number of typographical errors in Wolk’s pro se complaints and threats leads one to question whether he is even having his employees review his papers before he sends them out.
Will the Blogosphere Now Be Emboldened to Express Views About Wolk?
In my view, with his latest threats against Public Citizen, Techdirt and Greenfield, followed by his inaction when each of us stood up to him, Wolk has crossed an important line that will ultimately cost him the chilling effect that his persistent threats and suits had earned him.
Indeed, it seems to me that Wolk has put himself into Zugzwang, where none of his next moves can help him. By bringing new lawsuits against the Reason defendants in Los Angeles and against Ted Frank and the Manhattan Institute in New York, it appears that Wolk is beginning to come to terms with the personal jurisdiction problems of trying to sue all of his critics in Philadelphia. It will be increasingly difficult for Wolk to sue more and more critics; Scott Greenfield is also in New York, but Techdirt is in Northern California; he risks spreading himself thin if he sues there too. And the more defendants he adds into the case, the wilder his conspiracy theories seem. In fact, adding Public Citizen and me as defendants runs counter to the basic theory of his previous complaints, which is that the criticism against him is part of a vast right-wing conspiracy to bring down trial lawyers. Is that why he has not filed a complaint – because he can’t work us into his conspiracy theory? As Wolk brings in more defendants, it is more likely that judges will stop taking him seriously and will be unwilling to let him continue.
Moreover, the more defendants he adds, the greater the risk he runs that someone will bring a Dragonetti Act suit against him. My general advice to clients has been to seek an award of fees where they are warranted but to refrain from filing malicious prosecution actions once they win their cases, because such suits end up being a distraction. However, not every defendant may be so restrained.
And yet, the chilling effect he has achieved will dissipate if he does not add every one of the new critics, especially those whom he has threatened. Otherwise, other bloggers will learn that it is possible to criticize Wolk and even to defy his threats without facing suit. In the update to my last post on this subject, I noted that some bloggers have told me that they are pulling their punches about Wolk because even the threat of frivolous litigation is intimidating.
The example set by Public Citizen, Scott Greenfield and Techdirt in standing up to his threats may have some effect. It is my sense that there is now a perception that Wolk has gone too far, and that law and policy bloggers have some responsibility to step up despite the risk. We will see whether that happens in the coming weeks.