Send Lawyers, Guns and Money

by Brian on October 30, 2003

You’ve probably all seen the news that Donald Luskin is now legally stalking Atrios. Through his lawyer (who I’m sad to say is a Brown grad) Luskin wants Atrios to go through his comments board and delete all the posts that could be considered defamatory. I’m not sure it’s possible to defame Luskin, and I’m pretty sure being forced to trawl through Atrios’s comments section is not something anyone should be legally obliged to do. (Isn’t that a cruel, or at least unusual, punishment?)

This looks little better than a nuisance suit, and the most just outcome is that it turns out to be a costly one for Luskin. (Luskin conspiring to keep himself poor and stupid does have a certain artistic quality to it, so maybe the suit isn’t all bad.)

The original legal demand is here, Atrios’s response is here and there’s a list of well-wishers here. I’m pleased to see some conservatives living up to their oft-quoted line about disagreeing with what you say but agreeing with your right to say it. The best comment so far (unsurprisingly) is from Andrew Northrup, with Brad DeLong not far behind.



JP 10.30.03 at 7:44 pm

This looks little better than a nuisance suit, and the most just outcome is that it turns out to be a costly one for Luskin.

Yes, but as people in other comment threads have noted, Luskin’s real goal is just to screw with Atrios by forcing him to reveal his identity. I think comparing this to Plame-gate may be a bit overboard because there isn’t really any intimidation in it per se, but it’s still bad. He just wants to spite Atrios by messing up something he’s worked hard at maintaining for a long time.


Thorley Winston 10.30.03 at 11:47 pm

My understanding of using is that you do not have to provide an actual name to register, just a user name and/or email address. In which case, I do not see how subpoenaing would necessarily result in disclosing Atrios’ identity unless he actually registered under his real name. Is my understanding of this correct or do you need to provide an actual name?

As far as the merits of the suit, while defamation is generally not in my field, it seems like it could be a difficult thing to prove since “stalker” can have more connotations then just the legal definition (IIRC Volokh had a piece on a similar issue in which a Democratic politician sued unsuccessfully for being referred to as a “traitor” or “treasonous”). It could be difficult to prove the elements of defamation as well as holding Atrios responsible for the comments made on his board (if he is even liable for what others post on a forum he provides). Anyone know of any similar case law?

Initially I found the story a little difficult to be believe. Jeffrey Upton’s biography does not indicate that he handles defamation cases and AFAIK neither he nor Luskin have publicly said that they are considering legal action against Atrios (anyone can claim they received an email from anyone else just as anyone can claim to be anyone else via email – the lack of an email address and several other details I’ve noticed in my own legal correspondence made me suspicious of the initial posting of the supposed email). However I did some information including an article on (click on my name to read the article) written by Donald Luskin in which he proposed requiring posters on online stock discussion boards to reveal their identities to weed out some of the scam artists. If you scroll down to then of the article, you’ll also see comments by a Jeffrey Upton of Hanify & King as follows:

Message board posters may be unaware of the risk that they take when they post a message about a company, and that the qualified anonymity they enjoy may lull them into a false sense of security … Many computer users probably don’t see the difference between expressing their opinions in a bar and expressing them in a chat room or on a bulletin board. In the eyes of the law, there really is no difference. But as a practical matter, because the statements are in a more permanent written form and are published to a much larger audience, the potential for litigation and damages is much, much greater.

This would seem to be consistent with the text of the email Atrios posted on his site.


Ted Barlow 10.31.03 at 1:49 am

I never used Blogger Pro, but Atrios does. He probably has a credit card on file with them (unless there’s some double-secret PayPal method that I’m unaware of.) So I think that a subpoena could expose him.


Thorley Winston 10.31.03 at 2:22 pm

Thanks Ted, well I guess that answers the question of Atrios’ risk of being outed.

Does anyone know of any case law in which the owner/operator of a forum/medium was held or considered liable for someone else who used it with the owner/operator’s knowledge to defame another and/or to make terroristic threats while the owner/operator did nothing? It seems to me that if there is such case law and Luskin were to pursue legal action that might the stronger route than claiming that Atrios personally defamed him.

I cannot wait to see what Volokh has to say on the matter.

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