My Web Libel Adventure

By Jonathan Wallace

I am what is often referred to in First Amendment writing and jurisprudence as a "small speaker". I have been publishing The Ethical Spectacle monthly on the Net since January 1995. Within a month or two after the first issue went up, I got a report from my web host indicating that 1500 "unique users" had visited the site. I was amazed that so many people had read my work, because I had had no idea what to expect from this Internet thing. Today--six years later--readership averages about 35,000 unique visitors a month. (Actually, this number is somewhat understated because the software that produces the report counts each domain as a unique visitor, even if it is shared by several users who visit the site at different times. Thus counts as a single visitor.)

As I mention in another essay in this issue, there is an idea out there that the Internet is a wonderful, virtual Hyde Park corner, where anyone can stand up and say anything in perfect freedom and safety. This is a beautiful dream, but it is not real.

Publishing the Spectacle has been a series of firsts. My first letter from a reader; the first time someone wanted to republish something I wrote; the first time an essay of mine was assigned by a teacher as homework; the first letter from an Italian teenager, a South African physician, or from an author whose work I had read; the first time a quote from me turned up in someone else's .sig file. That's the good stuff. Then there are the dark firsts, such as the first email telling you that you deserve to be shot down like a dog and the writer would do it himself if his eyesight hadn't gotten so bad.

Last summer I experienced another first: being sued for the first time on account of something I had written on the Web. Absurdly, it wasn't even an article in the Spectacle.

In the summer of 1998, I had a run-in with a company from whom I purchased a major appliance; I ended up with a unit sitting in my house which I did not want. I then entered a kind of Through-The-Looking-Glass world where I could not get redress from the seller or from American Express, through whom I had charged the unit. So, in the end, I put up a web site describing what had happened to me, and giving some other interesting information I received from the Better Business Bureau and from the New York State Attorney General. (Notice I am being rather vague here; I will explain why at the end.)

I also put up a web site complaining about Amex's role. After extended wrangling, and several suspensions of my card, Amex credited me half the price of the appliance, and I sold it for half what I'd paid, so I covered my losses (except for my time and aggravation). I took down the Amex page, but left the other site up, because I had never received any kind of redress from the company. I updated that site one more time, the following February, after receiving a phone call from another unhappy customer.

In August 2000, a woman knocked on the door of my home on Eastern Long Island on a weekend afternoon, and served me with a summons and complaint for libel. "Don't shoot me," she said as she handed me the papers, "I'm just the messenger." Since two years had elapsed, I had all but forgotten about the whole affair, but the company clearly had not. After some initial shock, I went to the law library the following Monday morning, and in a few hours of research, discovered the following:

I practiced law for ten years, but had never before seen a complaint with so many fatal defects.

I called the attorney who had drafted and served it, Gary Gramer, Esq. Gramer has been in the news a good deal recently because he is representing some women who were forced to strip by Nassau County police officers. First, I asked what his client was looking for.

"I think we could settle this if you took the page down and made a payment of, say, five thousand dollars," Gramer said airily.

On the web site, I had mentioned certain legal matters involving the company. I asked Gramer if he had represented the company in any of them. He got huffy then, and said, "That's neither here nor there."

I pointed out that he appeared to be suing me for the falsity of statements that he might personally know to be true.

What happened next was interesting. Mr. Gramer had a chance to shout, scream, defend the integrity of his client, and call me a liar. He did none of these things. Instead, he said, quite calmly, "Well, truth is a complete defense, isn't it?"

I am not a mind reader, and so I cannot guess exactly what was in Gramer's mind at that moment. I can, however, offer a constitutionally protected opinion consistent with the facts as I know them. An attorney making such a reply (not necessarily Mr. Gramer, of course) might, in my opinion, have known there was nothing false on the site. And not particularly care. Because I was going to have to incur legal fees, or at least spend substantial time in court, getting his complaint dismissed. Beyond that, such an attorney wouldn't necessarily have foreseen any negative consequences for himself or his client of bringing the case, even if it was completely groundless. No sanctions, no disbarment, no punitive damages or payment of my attorney's fees. Because none of these things might be available to me under the state system in which the hypothetical attorney functioned. And such an attorney therefore may have thought I would give up, pull the page, and even pay money before I would bother to fight.

Insetad, I served Gramer with an answer containing ten affirmative defenses and seven counterclaims. And I began preparing a motion to dismiss the complaint.

Gramer engaged in some other behavior over the next six weeks which I found highly unprofessional: I wrote him a series of letters which he ignored. Though some of these were to stake out a position and as such didn't require a reply, others asked for very specific information which he knew and should have shared with me. For example, I asked him if he had filed the complaint with the court yet, and if so what was its index number? I needed the information to make my motion to dismiss and file my answer. In my opinion, Gramer had disregarded the following provision of the New York State Canons of Ethics (the rules governing attorney behavior):

A lawyer should be courteous to opposing counsel and should accede to reasonable requests regarding court proceedings, settings, continuances, waiver of procedural formalities, and similar matters which do not prejudice the rights of the client.

When Gramer's fax ate one of my letters, he had his secretary telephone to ask me to send another copy--which he then ignored like all the rest. In the end, I had to call the clerk of the court to ask for the index number.

I had already spotted three fatal procedural infirmities in the complaint, but the clerk told me there was another one as well, which I did not spot: the summons was improperly drafted. The clerk accordingly had rejected it when Gramer tried to file it, ending the lawsuit unless he served me with a new, correct form of summons. Six months later, Gramer has not tried to start the case again.

What is the moral of the story? As a small, Internet speaker, I should have had the right (if we really lived in that "Hyde Park" metaphor) to relax knowing that everything I said on the site was true. Instead, even though I knew I was right, I had to adjust myself for what might have been years of battle...and even a negative outcome, if the case were litigated before an inexperienced or a bad judge.

Large media have the political power and the money to fight these kinds of battles. Time Magazine spent millions to win a libel suit brought by Ariel Sharon. Small speakers are defenseless. Only the fact that I am an attorney evened the balance. If I hadn't been, I probably would have pulled the page instead of defending myself. Despite its truth and the social utility of informing other potential customers of certain facts about Gramer's client.

The Internet has not really leveled the playing field. Note that, although my interest in telling this story has outweighed the natural caution I feel, I refrained from naming Gramer's client, telling you specifics about the incident, or providing you a link to the page. The site hangs in cyberspace, protected not only by the valiant but unreliable shield of Truth, but by the more certain shield of the statute of limitations. By repeating my statements from the other page, or even by linking to it, I could be said to have re-published them, starting a new one year limitation period. I have no interest in re-fighting a battle I already won. Here, then, is an example of how the anxiety which a bully inflicts on a small speaker warps language and interferes with freedom of speech. Even when one has been completely truthful. An attorney sued me on an expired cause of action, in the wrong court, with a doubly inadequate pleading-- and I'm still worried he will do it again.