Protecting The Right To Speak And Write And Blog

I stayed out of the public debate and discussion of the Gawker lawsuit because while I privately came down on the side of Gawker, the specifics of the case made me uncomfortable and I don’t think it was an ideal case to determine what is free speech and what is not.

However, the same lawyer, Charles Harder, who argued the case against Gawker, is back with another libel suit, this time against Techdirt and its founder and lead writer Mike Masnick. Regular and longtime readers of this blog will know that I am friends with Mike and have supported his efforts to speak out on Techdirt about all sorts of tech policy issues over the years.

The specifics of the Techdirt case are easier for me to get excited about. Mike has consistently and rigorously debunked the claims of Dr. Shiva Ayyadurai that he (Dr Ayyadurai) “invented” e-mail. Dr. Ayyadurai is upset with Mike about this and so he hired Charles Harder to file a $15mm libel suit against Techdirt and Mike.

Regardless of whether Dr. Ayyadurai invented email or not (I highly doubt it), we have a long standing history in scientific and technical circles and in the United States of freely, openly, and publicly debating and discussing technical issues like this. Through that sort of public debate and discussion we determine what is real and what is not and we also move the understanding of science and technology forward. These public debates can get nasty and personal, and that is unfortunate, but I believe it is better that we allow for this debate than set legal precedent that wealthy people can stifle debate by suing publications out of business.

So, I am urging everyone who cares about the legacy of free, open, and public speech and debate about technical issues to support Mike and Techdirt’s efforts to defend themselves. Mike wrote a blog post about this issue last week and this is taken from that post:

I am beyond thankful to the many of you who have reached out and offered to help in all sorts of ways. It is heartening to know so many people care about Techdirt. At some point soon, we may set up a dedicated legal defense fund. But, in the meantime, any support you can provide us will help — whether it’s just alerting people to this situation and the danger of trying to stifle a free press through meritless lawsuits, or it’s supporting Techdirt directly (or, if you have a company, advertising with us). As always, you can support us directly as a Friend of Techdirt, or check out some of the other perks you can get in our Insider program. You can also support us via Patreon.

I am hoping that Mike sets up a dedicated legal defense fund and plan to contribute to it if he does. I will let AVC readers know if that happens. Until then, let’s all get behind Mike and put a stop to this nonsense.


Comments (Archived):

  1. andyswan

    The difference of course is that in one case, the DISCUSSION itself has value beyond the DESTRUCTION of the person on the receiving end. Will be an interesting case to watch get thrown out :)I think you chose your battle well, Fred.

    1. pointsnfigures

      Agree with Andy and Fred. When a media property actively works to destroy a person because it doesn’t agree with them-or wants to out them in the case of Peter Thiel, it’s a lot different than when it’s about facts.

      1. PhilipSugar

        Peter picked his battle well as well. He went after them not for publishing about him but about Hulk Hogan.

        1. LE

          Hard to wrap my head around what Thiel did plain and simple. I wasn’t a gawker reader but I kind of gather that he made a great deal of enemies and was a (for lack of a better way to put it) ‘a dick’ so all of the sudden the knives came out and people felt he got what he deserved. That’s vindictive. I am more in favor of crimes standing on their own. I wonder what people would think if the lawsuit was for outing Thiel in a well loved publication that had wide support.What’s fair is fair. (Note my comment in defense of lawyers elsewhere as proof of that).

          1. PhilipSugar

            I think he was an angry wealthy man that lashed out.

        2. Salt Shaker

          Thiel likely would not have underwritten the HH case if he hadn’t been personally and previously aggrieved by Gawker. He was able to take them on in a tangential way vs. being the plaintiff, out front and center. He kept his powder drier (though not entirely dry). My hunch is most people don’t even know who Thiel is, let alone that he picked up the tab.

          1. Elizabeth Spiers

            Well, he didn’t have much choice. He wouldn’t have had any grounds to sue them personally. The Clarium reporting was accurate, if unflattering, and Owen Thomas’s post noting that he was gay was legally protected speech (whatever you think about the ethics, or whether it should be protected). So if Thiel had tried to sue Gawker himself (I can’t imagine on what grounds), it would have never seen the light of day. The only way he could get back at them was to help someone else who potentially had a case that wouldn’t immediately get thrown out.

          2. Salt Shaker

            Fair point. Outing someone as being gay hardly constitutes libel or defamation, particularly in a modern day era of acceptability. As a defense, one can cite case law and even reference pop culture, as in the classic episide of Seinfeld (“we’re not gay, not that there’s anything wrong with it.”)

          3. PhilipSugar

            We totally agree.

    2. fredwilson

      picking your battles is one of the most important things one can do. my kids taught me that 🙂

  2. William Mougayar

    What might make a difference in this case, is if other media properties also bandied together to support Techdirt. That way, the wall of attack is much higher. Regardless, there can’t be a 2nd precedent to them winning this against Techdirt, because then – who knows who will be next?

  3. VincentWright

    Tweeted… (And this is PERFECT: “These public debates can get nasty and personal, and that is unfortunate, but I believe it is better that we allow for this debate than set legal precedent that wealthy people can stifle debate by suing publications out of business.”)

  4. DRM

    The most difficult and uncomfortable cases e.g. Gawker are, in fact, precisely the time to step up and express your view on free speech. That’s the whole point – the most uncomfortable scenarios are the ones in which it matters most.

    1. Campbell Macdonald

      I think there are substantive differences between the cases and I think it’s wrong to treat them as equal. In the Gawker case, they released a sex tape that neither party authorized. I think this is unacceptable, even for public figures.In the second, someone is making a public claim and techdirt is disputing the public claim.I realize these are being fought on similar legal grounds, but some content is different and should be able to remain private.

      1. Jess Bachman

        The Universal Declaration of Human Rights on free speech and expression does not have a carve out for sex tapes. If only “authorized” information were protected, the press would have no function but to amplify the “official” record. Gawker can both be morally reprehensible, unacceptable, AND protected speech.

        1. Campbell Macdonald

          Jess: Yes, I realize I’m talking about limits, though the line I’m talking about is not just authorization (authorized sex tapes = porn, which is fine). Are you saying there should be no lines? We draw them for libel and defamation. I think it’s reasonable to say some (defined) unauthorized, private content does not belong in the public.

        2. PhilipSugar

          Agree completely but where is the line between authorized and stolen? Or if you were not the one that had it stolen are you just reporting on stolen information?In the Erin Andrews case she sued the people with deep pockets that were “responsible for it being stolen” not the press.

      2. Vendita Auto

        Jimmy Swaggart might agree with you. I find it strange that had Trump been talking about a mans crotch rather than females ? The law is not often an ass.

      3. PhilipSugar

        I think you are exactly right and Andy nailed it with the top comment that Fred picked his battle wisely. Peter Theil did the same thing. It’s one thing to out me or to say I am a bullshitter. That’s freedom of speech.It’s another thing to knowingly publish a sex tape that was stolen.It’s interesting though because then what does that mean about emails that are stolen?

        1. LE

          Press often publishes stolen and/or leaked information. What makes a sex tape any different? Nobody cared much that Trumps bus talk outed him in fact they used it greatly to their advantage.

          1. PhilipSugar

            You are right that always is the challenge. The only thing that is universal is people universally don’t like it if it’s about them or somebody they support or like.

        2. Campbell Macdonald

          I think it depends on the content. If it pertains to facts around things that I am arguing for in public, then that is likely fair. If it is around personal proclivities, likely out of bounds.LE: the fact that the press does it doesn’t make it right. That’s what we are discussing. Trumps comments were private (yes) but also revealed potentially illegal actions (assault). If you are breaking the law and reveal it (except to a spouse or lawyer), I believe that can be shared. Hulk Hogan wasn’t breaking the law.

          1. LE

            but also revealed potentially illegal actions (assault)There is not a carve out in the law for information obtained illegally that highlights illegal activity. So I can’t break into your house and film your collection of stolen merchandise and then get off simply because I have ‘revealed potentially illegal actions’. Now in some cases (say with two party consent on phone calls) prosecutors might decide not to go forward, as is there discretion, but as a very general rule you can’t break the law in order to highlight a crime that has been committed. Can you do things like break the speed limit or run red lights in order to highlight what someone else is doing? Maybe but I don’t think the way the law is written this is allowed it’s more prosecution discretion (lawyers can feel free to chime in on this one).

          2. PhilipSugar

            You know but interesting. I have to really think.I don’t think it matters about personal proclivities. I mean yes it makes you a scumbag, but that’s allowed. Stars have dealt with this forever. Look at TMZ. (I watched that once, what a train wreck)Opinions? No question. (I went to Breitbart once, what a train wreck)As I said people never mind if it’s not about them or people they like. They get mad as hell if it’s about them.I might be changing my mind, but I’m not sure. Part of me says it is the 1st amendment. They numbered them for a reason. If I get somebody to break into your house and take that is a crime. But obtained illegally and I didn’t take possession? That gets tougher especially in the internet age. You can just report on what is out there even if it was stolen, you aren’t taking possession, you didn’t authorize it’s theft.

          3. Campbell Macdonald

            I think TMZ is roughly equal to Gawker. And you’re right, I’m making arbitrary rules, basically around decency and rights to privacy. This is a super grey area.But there is a spectrum here:1) Fappening: illegal. Hacker charged. 18 months2) Gawker: Hogan (funded by Trump) won. Large damages3) TMZ: Can essentially show whatever they want as long as it is truthful?4) Techdirt: Clearly not a private issue. Individual making a claim that is likely false. A publication taking that on: feels like solid ground. This is not private content obtained illegally, it is public debate.I would love to see TMZ reined in for sharing private content. Much of what they seem to do is corner stars in public. Which while lame, is legal.

          4. PhilipSugar

            Never actually been to Gawker. Didn’t know what Fappening was had to look that up.It’s hard.I think this is a clear case. You say you invented email.Like almost all things computer science the obviously was a collaborative effort.One of the inventors says it best: Tomlinson himself is said to have been quite modest about his place in history. Despite earning a critical place in the email lore, he told the University of Maryland in an interview in 2002 that email advances were made possible by “stepping on the heels of the previous one and is so closely followed by the next that most advances are obscured.” He added that he thought “few individuals will be remembered” in the history of email’s founding.

  5. JimHirshfield

    Free speech! “Free”, like liberated and unrestrained…not like “free beer”.

        1. Girish Mehta

          ….A Beer that shall set you free ?

          1. JimHirshfield

            Umm…all beer sets you free, no?

    1. Mario Cantin

      In some quarters you get both!

      1. JimHirshfield

        Show me the way to this magical place

        1. Mario Cantin

          Sorry, I didn’t mean free beer, I meant you sometimes get unrestrained speech all-too-gratuitously offered — particularly *if* you’re the one paying for the beer. Not such a magical place, when put this way.

          1. JimHirshfield

            Rain on my parade

  6. kevando

    Gotta stop fake news some how..

  7. Pete Griffiths

    What is the damage model?How does he justify $15m of damages?

    1. Vasudev Ram

      Yes, good question.

  8. Mike Cautillo

    My friend was right when he said “Don’t clog the issue with facts.” It seems now more than ever, so I’m grateful for independents freedom of expression!!

  9. Frank W. Miller

    The Internet is not a movie theatre. Noone is forcing people to come to websites. You should be able to say what you want and deal with whatever consequences ensue.

  10. Jess Bachman

    Um.. I’m pretty sure Al Gore invented email.

    1. Vasudev Ram

      He invented the Internet too, and emailed you about it, right?

      1. Jess Bachman

        Yeah, he posted about it on his BBS, Gorenet, back in 1978.

        1. Vasudev Ram

          Yeah right, I remember building out the Gorenet hardware and some of the software for him, back then. with a small team. One of my early freelance jobs. Everything was hand soldered and the code was entered by hex keypad. And carrier pigeons delivered the network packets …

    2. JimHirshfield

      Ah, well played!

    3. Twain Twain

      Actually the pony invented email (express mail).He may even have been a unicorn but VCs weren’t around back then to back him.https://uploads.disquscdn.c

  11. Vendita Auto

    One wonders if this is based on no win no fee ?

  12. Tom Labus

    We heading into a period of “alternate reality” that will want to be the only version of reality.

  13. Peng Jin

    The crippling legal process has been used to create unfair advantages for many years. I certainly hope at some point, with the power of the Internet, crowdfunding and smart contracts, we will see a case where the aggregated power of the people can out-manuver the rich and powerful. If successful, it could point all of us to a new direction for future conflict resolution.

    1. jason wright

      yes, but from the perspective of the 99% a media corporation is a rich and powerful entity. the idea of media corporations as ‘victims’ doesn’t fit with my observation of the balance of power they hold over the people.

  14. Salt Shaker

    Challenging times today regarding free, meaningful, or even innocuous speech. Often subjective and open to interpretation, sometimes lacking in any fact based hypothesis or opinion, occasionally mean spirited and defaming. When Trump’s spokesperson says don’t judge DJT based on “what comes out of his mouth” you know the speech bar has been set at a level never seen before.

    1. LE

      Long history with the press of making so much out of someone changing their mind (this is not related to DJT and what comes out of his mouth which for sure is extreme btw). Constant clips roll showing that a flip flop (when the facts change or the person simply starts to think differently) of that being a bad thing. When it’s a good thing. [1][1] And not the same treatment and humiliation with medicine and science which is often changing information previously given as fact and absolute. You never see an article about that with the same belittling attitude as you do with politics.

    2. Twain Twain

      July 2016, Ray Kurzweil of Google: “Emotions and human language are the cutting edge of human intelligence. Emotions are not a sideshow. Consciousness is subjective. And, fundamentally, that (i.e., subjectivity) is not a scientific concept.”That means current technology is unable to help us filter for meaning or whether something is fake, innocuous or malicious.

  15. Chris Harvey

    What many people don’t know is that there are state laws to protect against this kind of behavior. They are called “AntiSLAPP” statutes and protect journalists and other people from being chilled in exercising their right to free speech. Marc Randazza is a great resource for these things as he is a blogger, journalism-educated, and Georgetown Law graduate. He also helped draft Nevada’s antiSLAPP statute.…EDIT: What SHOULD exist though is a federal law to protect journalists and other individuals in exercising their free speech. It’s not enough that the First Amendment can eventually vindicate you. What you need is not just a shield but a spear to fight back: in the form of money damages and attorney’s fees if the billionaire or well-financed adversary loses. Quickly.

    1. Derek Kerton

      Right. And aggressive lawyers like Charles Harder deliberately file the suit in a state that does NOT have AntiSLAPP laws, so the protections are too easily avoided.In this case, Techdirt is in CA, where there is protection, but the case was filed in MA, where there basically isn’t.The Plaintiff isn’t seeking to win in court (IMHO) – they have a terrible poker hand. It is seeking to bankrupt Techdirt before it gets to court, or just to make Techdirt suffer enough that other publications will be scared into silence on the subject of “who invented email”.

  16. jason wright

    doesn’t the court decide the amount of money that is to be awarded as compensation in such cases, and doesn’t that amount determine whether the publisher goes of out business or not?are you saying that the Gawker lawsuit was prosecuted to put Denton out of business?are you saying that the Techdirt lawsuit is being prosecuted to put Mike Masnick out of business?

    1. LE

      A large award is just a starting point for negotiations and potential downside. Higher number more leverage for the winner because of the unknown.

      1. jason wright

        it troubles me when i see an award that will bankrupt a publisher. it seems not to account for all the other stories and content that did not attract a lawsuit. it’s an issue of balance. one strike and you’re out is draconian.

  17. jason wright

    the speaker, writer, blogger has a duty to defend the principle of ‘free’ by being responsible about what they say, write, and blog. there’s no carte blanche to publish anything and everything and regardless of the potential damage it may inflict.

    1. Derek Kerton

      Relevance to this case?

      1. jason wright

        relevant to all cases. the principle underpins any story/ case.

        1. Derek Kerton

          Ok. But in this case the reporter wrote what appears to be a factual takedown of the claim to have invented email. Citing prior art as evidence.So how is your admonition relevant?

  18. ZekeV

    We should decide libel claims in court rather than through violence, but there is a certain moral hazard where plaintiffs have high upside with limited downside. This is particularly true where cases can be financed with other peoples’ money or by the attorney via contingency fee arrangements. A European-style “loser pays” rule, plus personal liability for plaintiffs’ attorneys, could solve the moral hazard issue, and I think should be considered.

    1. LE

      What is ‘personal liability for plaintiffs’ attorneys’?Also ‘loser pays’ doesn’t mean a wealthy person won’t sue. All it does is change the number and make it less advantageous but not a show stopper. And it cuts both ways also being a disadvantage for a defendant.

      1. ZekeV

        Our current system, with a few exceptions, is that parties bear their own costs of litigation regardless of outcome. This allows plaintiffs’ attorneys to behave like anti-fragile Talebian risk-takers to pursue extra-large contingency verdicts, where their downside is limited but upside is great. In extreme bad faith cases, the court may impose costs on a losing party including a losing plaintiff, and may even sanction the attorneys, but it is rare. By loser pays / personal liability for attorneys, I mean that if the client loses and can’t pay the lawyer is also on the hook. This is absolutely a double-edged sword, and works to place an incentive on both sides of a dispute to think objectively. It also makes plaintiff lawyering as an entrepreneurial venture a VERY DIFFERENT game from what it is currently.

        1. LE

          where their downside is limited but upside is greatI think there is a misconception that just because the upside in a case is large the amount of effort that goes into preparing an offense doesn’t matter much because, well, it’s just time or something like that. That is not the case. The time that an attorney (and I am not an attorney and don’t particularly have a reason to defend them) spends is lost to other things that they could be doing. And of course there are obvious operational fixed expenses. If Harder takes on this case he does have significant skin in the game is my point. Doesn’t mean I agree with what he is doing just presenting another side to the argument.

          1. ZekeV

            The issue is that the cost (downside) of pursuing claims, while meaningful, is often relatively small compared to the potential damages, which present a sort of unbounded upside. Firms like Harder’s or what was formerly Edelson McGuire have no problem financing speculative cases. Should attorneys be incentivized financially to pursue speculative cases? Hm…This looks a lot like the classic Talebian concave risk function, where it is worth paying the costs of failure repeatedly in hopes of achieving a big win. This is not true in every type of litigation, but does seem to be part of what has motivated some strategies on the plaintiff side. I would argue it’s the reason there is a professional plaintiffs’ bar in the US whereas there is not so much in most European countries. There is both good and bad in this.As to the ethics of taking on cases such as the email defamation matter, I agree it is not an easy question. As it happens I am an attorney, so it’s something I have thought about a lot but have no silver bullet answer. Yes in principle our system works b/c everyone has a right to counsel. I definitely respect lawyers who are willing to defend unpopular defendants both in civil and criminal context. I do have some doubts about the role of profit in determining client selection — clearly there are some firms that are consistently on the side of evil. And I’m not saying Harder is one of them. I am still not sure what I think about the whole Gawker litigation, and its progeny.

  19. creative group

    CONTRIBUTORS:Arguing the technical merits, timelines, etc is totally different from libel. You know libel when you hear and view it using the SCOTUS definition. It appears one civil litigation won will promote others with deep pockets. SAD

  20. Derek Kerton

    “Regardless of whether Dr. Ayyadurai invented email or not (I highly doubt it),”Fred: I’m curious as to whether you pulled your punches in the above line as a DIRECT result of the aggressiveness of Harder and Ayyadurai. Chilling effects.You did not say that “Ayyadurai didn’t invent email”, even though that is probably what you believe. Were you afraid to state your opinion on your own blog? People, think about that!!I’ve had the same apprehensions when commenting right on this page…”should I write what I actually think, or will I get sued for speaking my mind”.That’s scary as hell. It sure doesn’t feel like Free Speech.Support Techdirt’s defense if you like free speech, people.

    1. fredwilson

      I pull punches all the time. It’s who I am and how I roll.

  21. Mark Watkins

    Who is going to decide what is a “legitimate” lawsuit? It’s easy to get agitated about a particular case; much harder to come up with an apriori method of shutting down such cases.We have courts to decide these things….The only solution I can see is a “loser pays” approach, to increase the cost of a frivolous attack. Of course, this also disincentivizes less affluent plaintiffs. No 100% perfect solution. But a loser-pays approach would decrease the prevalence of bad lawsuits.

  22. Steven Kane

    +1″Free speech is the right to yell ‘theater’ at a crowded fire.” – Abbie Hoffmann

  23. pwrserge

    Free speech is not a license to defame. As Buzzfeed’s latest escapades show, the “press” has been given free reign to run rampant for far too long. The press is given special privileges in the expectation that they will observe basic codes of integrity. (Like the “old fashioned” idea that a story not verified by two independent sources won’t even get published.) These days, “free speech” is being used as a shield by people who would shout down those that disagree with them at the drop of a hat. (See the semi-regular “protests” at Milo Yiannopoulos events.) That’s unacceptable.When major news outlets can publish things they know to be false without any regards for the consequences. It’s time to bring a little sanity back to the table.

  24. Vasudev Ram

    Wow, this is surprising news. I know Mike from having been a member of the TechDirt Insight Community, which he founded, earlier, for some time. I had thought then that it was an innovative method of crowdsourcing expertise. Hope it works out well.

  25. Jann Scott Live

    well, see everybody loves free speech until it gets up in their face, then everybody hates it . Ask me I have offended every special interest group at one time or another and they all act the same ” how dare you? ” ,know what I’m sayin?. It goes with the territory…

  26. jason wright

    he invented email? these MIT types take the biscuit.

  27. Ana Milicevic

    One would think that the person who invented email would have better things to do with their time and resources than file frivolous lawsuits.