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On Receiving a Cease & Desist Letter

In between teaching, writing, research dean-ing, traveling, workshopping, and spending a little time with my family, I got a nasty cease and desist letter the other day in connection with one of my blogs.  Not this one; instead, this one, in which I and a co-blogger write about what’s happening in our little suburb of Pittsburgh.  What happened, and why?  More below the jump.The short just-the-facts version is that about a month ago, a neighbor alerted me to a mini brouhaha unfolding down the block.  Another neighbor was re-landscaping a backyard and in the process was about to block access to a stone path that had run between two adjacent lots for several decades and that was, in popular understanding, protected by a recorded easement.  I put up a short post about communal interests embedded in claims that sound initially in purely private property, and a lively comment thread ensued, the bulk of which took aim at my allegedly communist (and Communist) sensibilities.  In the course of the thread, one commenter (apparently a child who uses the path to walk to school) “outed” the landscaping family by name, and a second commenter suggested that the owner, who is apparently a lawyer, should have known better than to buy a piece of real estate without checking the record for easements.  Eventually the comments got repetitive, and I shut them off.  The attention of the blog moved on.

Except that the landscaping homeowner is in fact a lawyer, and that person’s father is a lawyer and a person of influence in my little suburb, and that father’s ex-wife (mother of the homeowner; are you following?) is also a person of influence here.  And so, a nastygram arrived unannounced in my inbox and in the inboxes of my two co-bloggers.  (At the time there were two; now, there is one.)  Delete the allegedly defamatory post (for the blog had impugned the professional reputation of the landscaping homeowner!), or face the consequences.  There was and is no doubt that the point of the letter was to suppress community discussion of the path-blocking landscaping project.  Whether an easement was recorded, and what became of that easement if it no longer exists today, are questions that remain unanswered, to the best of my knowledge.

And the nastygram was engraved with a “Not For Publication” notice on each page.

I’ve sent and received enough nastygrams on behalf of clients to understand what they really mean, I know enough about the Communications Decency Act to understand what it really means, and I know enough lawyers and law students and law professors to understand that if we stood and fought, we’d have some fun and some stress and in the end we would likely prevail. 

A lot of knowledge can be a dangerous thing.  This is where the story gets interesting and perhaps worth blogging about.

Co-blogger number one, not a lawyer, asked immediately that we delete the post.  The details aren’t important; the point is that he was scared out of his wits by the prospect of defending a lawsuit.  Co-blogger number two, also not a lawyer, was chagrined by the letter’s reflection of local social hierarchy, but he decided that he had better things to do with his time than get caught up in this little mess.  He withdrew from the blog.

Blogging lesson number one:  All of the noblest rhetoric from Chilling Effects and the EFF and law faculty colleagues is terrific, but it doesn’t mean a lot when your co-blogger turns to jelly.  Should lawyers blog with non-lawyers?  Maybe not; maybe lawyers simply see the world in a different light.  My co-bloggers and I didn’t (and don’t) have a formal co-blogging agreement or liability-shielding arrangement, but even if we had, it’s clear that the dynamic would have played out essentially as it did.  We had discussed dealing with hypothetical defamation claims, and I had walked through the immunity analysis under Section 230 of the CDA.  All seemed well.  But when push came to shove, the non-lawyers got extremely nervous.  There was no trust.  At that moment, our relative aversion to risk was quite different, and I felt that I couldn’t leave the post up if it meant that my co-blogger would remain frightened.

So down the post came.

At that point, I was short two co-bloggers and quite unhappy about having my time hijacked by an unwarranted attack by local powers-that-would-be.  I countered.  I announced that posting on the local blog (the target) was indefinitely suspended, and on my other (solo) (regional) blog, I explained why, pointing to an attack by local powers.  I posted the explanation elsewhere as an act of passive but solo resistance.  For the posts, click here (the local blog) and here (the regional blog).

Those posts triggered an interesting reaction:  The readership of the local, suspended blog howled in protest and clamored for the return of the blog.  Other bloggers in town, in Pittsburgh, and even in a couple of instances around the country added posts that were by turns both sympathetic and outraged.  After a week’s hiatus, blood returned to my co-blogger’s head.  His courage restored, I was persuaded to resume local co-blogging — with its attendant risk of aversion asymmetry.  For the post announcing our return, with accompanying changes, click here (the local blog).  For my related reflection on the implications of the whole episode for community blogging, click here (the regional blog).

We have been assured, indirectly, that the author of the nastygram, and his client, will not be pursuing that matter further.

Blogging lesson number two:  Community good will is a powerful thing to have on your side.  Don’t screw it up.

There are a couple of strictly “legal” questions left over.

One is a nuance of the CDA.  Something that I omitted from the narrative above was this:  The comment that was the specific object of the claimant’s wrath was authored by one of my co-bloggers.  Does Section 230 immunize me from liability for a tort allegedly committed by a co-blogger?  Here’s the statutory text:  “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.”  Read that text carefully.  There’s a good argument to be had that one co-blogger is not liable for the torts of another co-blogger.  There is also an argument to be had that one co-blogger remains liable.  Much depends on the meaning of “provider” in that sentence.  Eric Goldman has written about these issues.  Check out his full paper at SSRN, or read some excerpts.

Two is the meaning of the “Not For Publication” notice engraved on the cease-and-desist letter.  (Above, note that I refrained from immediately posting the letter itself, again in deference to my co-blogger.)  It is just short of inconceivable that a restrictive notice of that sort would be enforced as a matter of copyright law, though to my knowledge the proposition has never been tested.  The more intriguing question to me is ethical.  Is an ethical lawyer permitted to intimidate a non-represented party (or, for that matter, a lawyer representing another party) in this way?  Is there any precept of the Rules of Professional Conduct or the Model Code that would apply here?  At the Legal Ethics Forum, David McGowan suggests that the answer is no — but that the rules might be amended to proscribe this tactic.  His post also includes some pointers to posts on the copyright question.