by Paul Alan Levy
Over the past couple of months, I have blogged (here and here) about Arthur Alan Wolk’s campaign of intimidation against anybody and everybody who reported in unfavorable terms about his litigation against Walter Olson, Ted Frank and Overlawyered for having criticized his handling of a piece of litigation. The result was an new barrage of blogging about Wolk, bringing the Streisand effect to bear with a vengeance.
Wolk responded by threatening to sue me, as well as Techdirt and Scott Greenfield over their comments; he actually did sue me for about a week, although he dropped that action while muttering about how he was going to sue me later. But with Techdirt, Greenfield and me, Wolk encountered a new phenomenon — bloggers who refused to cower before his threats, and even invited him to file suit if he thought he had a valid claim. He has not done so, and I am confident that his bullying in that regard is at an end. Note to other bloggers tempted to comment on Wolk: coraggio!
Wolk recently settled his lawsuits against Reason Magazine and against the Overlawyered defendants, and yesterday the defendants announced that settlement. Reason posted a statement defiantly promising to keep its previous posts about Wolk online, but turning off the comment feature for the claimed purpose of protecting readers against being sued for what they might say in response. Overlawyered went a bit further.
Overlawyered issued a joint statement wth Wolk noting that it had learned, after making its original post, that Wolk had, in fact, “t[aken] precautions for his clients” in the incident that Overlawyered had originally criticized. Not quite an apology, not quite a retraction, but certainly a correction of the record. The statement is posted in a slightly obscure location on the home page of overlawyered.com; it will be interesting to see how long the statement remains there. (If it disappears, the complete statement is reproduced on Techdirt as well as the Reason posting linked above). Overlawyered also removed the original post as well as its subsequent posts about the litigation, and promised not to say anything more; the joint statement also asked "all others on the internet" who had previously posted about the litigation to take down whatever they said.
Mike Masnick’s response on Techdirt shows his customary verve and defiance against threats. He explains why Techdirt is not removing any previous posts, and why it is not blocking comments. I generally agree with his take on the matter, with one exception. Masnick says he is “a bit disappointed that Overlawyered would agree to take down historical posts without a court-ordered reason to do so.” With respect to the postings about the litigation, I agree, but I differ with respect to Overlawyered’s original accusations against Wolk.
My reading of the record of the case suggests to me that Overlawyered had a very strong statute of limitations argument against the suit against him, and a strong defense based on the actual malice requirement (indeed, actual malice has to be proved by clear and convincing evidence). Overlawyered may well have had a reasonable defense that its original post expressed opinion rather than fact. But in the end, my reading of the record was that Wolk had put forward a substantial case that he was not guilty of the wrongdoing that was discussed in the original Overlawyered post. Overlawyered pointed to some documents and raised the possibility that Wolk had sold out some of his clients to avoid the impact of an order in the case directed at him personally. In response, Wolk not only denied the charge but produced information from other lawyers in the case rebutting that contention.
So what were the Overlawyered defendants to do? Yes, they had some powerful legal defenses, but on the other hand, maybe they concluded in retrospect that they were wrong. And if that is what they concluded, then what a responsible blogger does is correct the error. If the blogger has been threatened with litigation, or is involved in litigation, there are of course various tactical reasons that might bear on how the blogger should proceed. But just because you have a solid legal defense, just because you can avoid a court order, doesn't mean you shouldn't correct mistakes. (In this regard, the author of the post, Ted Frank, did not agree to the speech restrictions and, indeed, defiantly stands by his original post. I welcome him to explain his position in the comments)
Moreover, there are various ways to correct mistaken posts. One way is a new post acknowledging the error while leaving the original up. Another is a detailed explication of the original post, explaining what the blogger got right but fessing up to mistakes in other respects (a recent example of that is here). But another approach is to remove the original post while acknowledging that the target of the criticism had a point.
Wolk has a long history of bullying his critics, and I hate to see a bully get rewarded. On the other hand, his fundamental objection to the gist of Overlawyered’s original post was apparently sound, even if he waited too long to file suit.
But this bully has only got so much reward. His overreaction has created a long public trail that will remain part of his legacy, and that can never be completely erased. Moreover, Overlawyered’s takedown does not mean that the original post is erased from the public record. It appears in various litigation documents that are available in the court’s records (available to all the world on PACER and RECAP, as well as any other web sites that have reposted some of those documents). We will be on the lookout for the possibility of an effort to seal that public record.
There is one more lesson to be learned from the Wolk situation. His standard line in response to criticism includes this implicit threat of litigation: “I hope you have insurance.” Although I have long urged hobby-bloggers to obtain libel coverage by buying a comprehensive rider in their homeowners' or renters’ insurance (I have a hobby blog, and I post comments on other blogs that criticize various people and companies; so I have such insurance), Wolk’s standard line has impelled me to look into affordable insurance that is available for professional bloggers. I hope to post about the results of my investigation in the not too distant future.