July 1, 2010

Over at Media Matters, Eric Boehlert is writing about me.

Eric Boehlert. Eric Boehlert? Oh, I know where I read his name recently. He's a character in Iowahawk's brilliant "I'll Take a Cashier's Check, Mr. Breitbart." He's the one handing out the assignments:
EZRA KLEIN: hey boehlert whats the assignment

ERIC BOEHLERT: 3 part essay

ERIC BOEHLERT: 1. Explain why unemployment report shows stimulus is working

ERIC BOEHLERT: 2. link BP oil spill to teabaggers

ERIC BOEHLERT: 3. spin latest Gallups

JOSH MARSHALL: crap crap crap and I have a lab assignment for global warming due

ERIC ALTERMAN: o fack me looks like an all niter...
Ha. But why is he on my case? "Ann Althouse continues to blog about Journolist; appears to have no idea what it was," he says. Well, then, release the archive so I can cure my terrible ignorance. That's all I want.
Althouse continues to post item after item about Journolist, despite the fact that... Althouse has no idea what Journolist was.
Stop me before I blog ignorantly again, Eric. Send me the archive. Or send it to Breitbart and collect $100,000 and I'll get to it that way.

Boehlert goes on to quote me saying that if I were to sue a Journolist member for defamation — something I'm not inkleined to do — I would be able to get discovery into the archive. Eric B. says:
Althouse, a law school prof and very public blogger, was thinking out loud about suing the owner of Journolist to find out if any of the 400 journalists on the listserv ever wrote anything nasty about her in their private emails. (Ego much?)
Eric Boehlert continues to write about me like that even though he has no idea what the thing I wrote that he just quoted says.  I cited a specific item of defamation against me that was published on the web and that remains there. If I were to sue based on that remark, I would be able to get discovery into relevant evidence about that claim. Moreover, I know that there are specific, related remarks about me in the Journolist archive, because that remark was tweeted, in Ezra Klein's own words, "after I was alerted to her thread on Journolist."

Boehlert imagines that one of my commenters nails his argument for him. Here's that comment:
I would think a law professor might have a better grasp of this. But on what grounds would you seek the archives? To borrow a popular argument of the right, where in the Constitution does it say you have the right to know what others are saying about you, especially when you have no proof they are saying anything defamatory about you.
Clue to Boehlert: Not all law is in the Constitution. The tort of defamation is a matter of state law. The extent of discovery is a matter of procedural law. I don't need a constitutional right. (Conceivably, there is a right that would bar my access to the archive, but I don't need a constitutional right to discovery if I bring a defamation claim.)

So, Boehlert, your post is incredibly lame, but, as a law professor, I'll give you a rewrite. I think Media Matters portrays itself as a champion of truth, so... see if you can get a little closer to something that feels a little more truth-y.

***

On a related note: Yesterday, James Taranto, in Best of the Web, opined that a journalist's shield law would prevent discovery into the Journolist archive in a defamation suit:
Seems to us it would depend on the venue. Most states have some sort of shield law protecting reporters from having to disclose confidential sources, but the specifics vary from state to state. In federal court, however, there is no such privilege.
The privilege is about shielding confidential news sources — informants. The Journolist archive contains the statements of journalists talking to each other. I don't see how the privilege could apply.
[Journalists] should, of course, have all the legal protections of the First Amendment, which among other things mean that Althouse almost certainly would not win her defamation suit against Klein. His offending tweet, it seems to us, is a constitutionally protected opinion rather than a false statement of fact.
One reason I have no interest in suing is that I want the broadest First Amendment rights here. I would not want to have to argue that the statement in question — "Ann Althouse sure has a lot of anti-semitic commenters" — is not an opinion but a false statement of fact. But I'm afraid it is, quite plainly, a false statement of fact.

62 comments:

Trooper York said...

Well you are trying to get Mel Gibson to comment here.

Under his real name and not just as Cedarford.

New said...

In my opinion, Prof. Ann is right and Eric B. and Ezra K. are wrong. They always are-they are the US Pseudo-intellectuals.

Keep it up, Ann!

Angst said...

Remind me to NEVER piss-off the Althouse.

Old Dad said...

If I had just pocketed a $100,000 grand for ratting out my friends, I'd be covering my ass, too.

Fen said...

Oh noooos Ann! The cool kids are ganging up on you.

What a bunch of pathetic punks.

Hey Libtard Eric, we know what your little club was: a conspiracy to spin the news for the Democrat party. You little dweebs were busted, so for once in your life show some shame and stfu.

Seven Machos said...

I offer my services to depose Cedarford at no charge. In fact, I will pay $100 for the opportunity to do so (but, naturally, petition for fees and expenses later).

SteveR said...

I see Eric has never studied law in his meteoric rise to overrated liberal icon.

Lamar said...

If you wanna see anti-semitic comments, there's always the Washington Post. Oh wait...isn't that where Klein 'works'?

LL said...

Ouch! That one is going to leave a big welt.

Chase said...

There is a reason that Satan made his first appearance as a "serpent". Today it would be translated "liberal journalist".

Original Mike said...

Yeah, I'd be careful Ann. I hear they are really smart.

Big Mike said...

Remind me to NEVER piss-off the Althouse.

Never say, directly or in so many words, "so sue me" to a lawyer.

knox said...

I had never read Klein's apology about the anti-semitism here. This is a really lame excuse for someone who is in the field of, well, reading:

Althouse is right on one point: She does not have "a lot" anti-Semitic commenters. ... I had been looking at comments rather than attaching them to names.

Who goes through comment sections and ignores names? Nobody. He's either lying or tragically lazy.

[I know this is old news at this point, but these journolist guys really are embarrassingly inadequate.]

Trooper York said...

Ezra Klein is the kind of guy who would collect the clothes of his
Länsman and tell them not to worry. The were just going to be fumigated.

We have seen his ilk before.

lemondog said...

Eric Boehlert continues to write about me like that even though he has no idea what the thing I wrote that he just quoted says.

Another serious, fact-checking journalist

Issob Morocco said...

Like Norman Rockwell's Thanksgiving Day painting, Eric Bohlert is laid out on a blog platter, having been carved up by Althouse. Such lefty petulance has met it's match in a great photographer who happens to teach law in her spare days of the week!
Meade keep the knives away and Ann happy!! ;-)

Cheers!

Blue@9 said...

" To borrow a popular argument of the right, where in the Constitution does it say you have the right to know what others are saying about you,"

Wow, who made that comment? I'd like to introduce Boehlert and this commenter to the rules of civil discovery. Not pretty.

Dead Julius said...

I think your continued talk about this ridiculous hypothetical lawsuit might be hindering the leaking of the Journolist archive.

Just sayin'...

I suggest, Althouse, that you clearly vow to not pursue this silly legal action if the Journolist archive is leaked.

Do you want to settle scores? Or do you want information to be free? Sometimes we have to choose between the two.

And about the lawsuit: You might have a legal case; I'm not a lawyer so I don't know that. But I do know that you will lose the respect of many readers if you proceed with it, and furthermore you will be ravaged in the tech press. Usually we need to look at the UK to see people blatantly abusing the defamation statutes; this would bring the war right here to our homeland and the nerds would be pissed!

Issob Morocco said...

Instead of the "Summer of Recovery" perhaps getting ahold of the Journolist archives could turn it into the "Summer of Discovery"!!

garage mahal said...

journolist goes from sizzle to........fizzle.

Seven Machos said...

Julius -- You need some advice as well: learn to read. Althouse has said she has no plans to proceed with any lawsuit. The point is that Klein did defame her and that the archive would be discoverable in a defamation lawsuit.

It's clear that you aren't lawyer. Lawyers know how to read and to draw obviously proper inferences. Your stance as above the fray would play better if you could understand what you read in the fray.

Fen said...

Libtard: that you clearly vow to not pursue this silly legal action if the Journolist archive is leaked.

She already did that, you fucking moron.

Geez. You Democrats really need to be beat with the silly bat until you get some common sense.

You're so dishonest.

Robin said...

Divus Julius would be ashamed of Dead Julius.

Jeff said...

As the person whose comment was quoted, I for one never considered that argument to be a refutation of your right to know what members of Journolist are saying about you. Rather I was throwing out a ridiculous argument used by the right to argue against abortion rights and healthcare rights. Lots of things aren't in the Constitution like the right to privacy, the right to travel, etc. Yet the Constitution argument is one of the first ones proffered as if it settles the debate.

But the issue as I see it is since you have any evidence you are being defamed on Journolist, I don't see how you have any right to the archives. Ezra Klein's tweet most certainly isn't evidence as it isn't directed at you but your readers. That's why I'm surprised that you, a law professor, think you have a clear case. As I said, Jessica Valenti has a better defamation case against you then you do against either Journolist or Ezra Klein. Do you think she has a right to all of your e-mails from that time period? I'm guessing not.

Dead Julius said...

@Seven, Fen-

No, Ann has written:

"I am not threatening to sue"

and then in this post that she's "not inkleined to [sue]" and that she has "no interest in suing".

Meanwhile, she has posted about this hypothetical lawsuit a few times now, with suggestive wording like "If I were to bring a defamation suit...", even reminding us readers that "though when [she] practiced law, [she] worked in the litigation department".

Nowhere does she clearly and unequivocally state that she will NOT be suing; and whether her not suing is or is not conditional on the Journolist archives being leaked.

And if I were a liberal thinking about leaking these archives because I want the info to be free-- free like freedom, not free like beer-- then it would give me pause that they might be used in an abusive lawsuit that has already been hypothesized, if not outright threatened.

Dead Julius said...
This comment has been removed by the author.
Seven Machos said...

the issue as I see it is since you have any evidence you are being defamed on Journolist, I don't see how you have any right to the archives. Ezra Klein's tweet most certainly isn't evidence as it isn't directed at you but your readers. That's why I'm surprised that you, a law professor,

Oh my God, what an ass clown. He even pulled out you! a law professor!

As for this non-lawsuit, read up on FRCP 26(b) so that you can begin to understand what discovery is and how federal courts expect parties to any lawsuit to disclose material related to the lawsuit.

Right to privacy: The right of the people to be secure in their persons, houses, papers, and effect...nor shall any State deprive any person of life, liberty, or property, without due process of law

Right to travel: Congress shall make no law respecting...the right of the people peaceably to assemble...nor shall any State deprive any person of life, liberty, or property, without due process of law

Dead Julius said...

@Seven, Fen-

(sorry for multi-edits)

No, Althouse has written:

"I am not threatening to sue"

...and then in this post that she's "not inkleined to [sue]" and that she has "no interest in suing".

Meanwhile, she has posted about this hypothetical lawsuit a few times now, with suggestive wording like "If I were to bring a defamation suit...", even reminding us readers that "when [she] practiced law, [she] worked in the litigation department". (Those quotes are from the link above.)

Nowhere does she clearly and unequivocally state that she will NOT be suing; and whether her not suing is or is not conditional on the Journolist archive being leaked.

If I were a liberal thinking about leaking this archive because I want the info to be free-- free like speech, not necessarily free like beer-- then it would give me pause that they might be used in an abusive lawsuit that has already been hypothesized, if not outright threatened.

Seven Machos said...

Julius -- Why should Klein be able to defame people with impunity? Why is it wrong to remind him that there are consequences for such behavior?

Also, what do you care what Althouse does, anyway? What's your stake it it? Say Althouse does sue and she loses and everybody hates her. What the fuck do you care?

Finally, why should Althouse not sue but it's okay for 400 journalists to keep their archive that attempted to shape the news private?

Seven Machos said...

And you can't even get your argument right so you keep deleting it and re-posting it. Also interesting: I could be wrong, but you seemed to show up here right around the time this issue came up initially.

traditionalguy said...

Slandering the Professor is something like bombing Pearl Harbor and sailing triumphantly back home. The attack brings a retribution that is relentless and sure. I am reminded of an excellent history by Max Hastings on the end game against the Japanese Empire. It is called "Retribution- the Battle for Japan 1944-1945". Reading that book would frighten Barry Obama into a catatonic state. Those leaders wouldn't hesitate to kill anything that got in America's way.

edutcher said...

This exchange reminds me of a bit I saw in Mad magazine about 50 years ago.

Beatnik writes to San Francisco advice columnist, "I'm a sadist, my wife is a masochist. She keeps begging me to beat her, I keep saying, 'No'. What's happening here?"

Columnist writes back, "You're winning, man".

Give her a month. She'll wear them down.

Seven Machos said...

Trad -- Exactly. Leftist journalist defames Althouse and its commentariat. Althouse points out that she could sue because of said defaming.

Let's try to keep in mind who did the thing that was wrong here.

Dead Julius said...

@Seven-

Why should Klein be able to defame people with impunity? Why is it wrong to remind him that there are consequences for such behavior?

You don't respond to a Tweet with a defamation suit. The only folks who have done so, that I know of anyway, are overly-litigious businesses who are trying to cover their mistakes. It might be available legal option but it is contrary to the spirit of the Internet and to free speech in general.

Also, what do you care what Althouse does, anyway? What's your stake it it?

I would like the archive to be leaked. Uncertainty about how the leaked info will be used might very well be causing a potential leaker to hold back.

Jeff said...

SevenMachos, you need to brush up on your comprehension skills: they aren't very good.

Furthermore, Ezra's comment was directed at Ann's readers not her, so it's a bit of a trick to argue she was also defamed by it. Then there's the obstacle of proving the statement was intended as fact instead of opinion. Then can his statement be proven to be demonstrably false? There you have the fun of determining whether one might reasonably interpret a comment to be anti-Semitic or not. Not to mention trying to define what is " a lot."

Even the argument about Ann's readers being defamed is suspect given their anonymity.

You should also consider why Ann said one of the reasons she isn't filing suit is because she wants First Amendment rights to be kept as broad a possible. Maybe you want to be less free, but a lot of us don't.

Seven Machos said...

Jeff -- Allow me to educate you on something very, very elementary: discovery in a lawsuit comes before you have to prove any of the claims you make. All of the things you claim that must be proven would occur after the discovery process. But thanks for playing.

I have never encouraged Althouse to file any lawsuits against anyone.

Finally, you miss the easiest defense, which is that Althouse is a public figure.

New said...

Seven Nachos: You do not get it, right? Well, let me spell out for you: Ezra, Eric, Sully, etc. are just plain old jealous guys. They are pseudo-intellectuals. They will hide all the dirt. They not have standards, as others (like me, in Obama/Biden camp). We make mistakes, we own it. The fact that they are saying things about Ann shows that they are nervous: Ann is more popular, Ann is more scholarly, they are found with their hands in a cookie jar (JournoList to spin news). Now, they are ashamed. See the movie Spanish Prisoner. Steve Martin has a line there: They are guilty.

lucid said...

Boehler is a thought-police wannabe who usually is revealed, as here by Althouse, as misinformed and buffoonish and tendentious.

Jeff said...

Seven Machos—

Allow me to educate you.

You're overlooking that a Motion to Dismiss may be granted before discovery. As the comment was directed towards Ann's readers, what's her legal standing? Basically her one argument is the comments directed at her readers damages her reputation.

And when it comes to defamation, public figures and limited public figures have to go an extra step by proving the statement was made with actual malice. Good luck proving that. And what's more, even if Ann were to prove Ezra's statement is false, that's STILL not enough to win a defamation case.

So even if she were to get to discovery, Ann would probably only get access to posts relevant to her rather than all of the archives. She would have to turn over some her comment archives, too, and who knows what else? Then she would likely go on to lose. Her case is nowhere near the slam dunk she or you think it is. Winning defamation cases is difficult.

If proving defamation were that easy Glenn Beck, Ann Coulter and Rush Limbaugh would all be broke by now.

Seven Machos said...

You're overlooking that a Motion to Dismiss may be granted before discovery.

Not based on any of the things you brought up. Not based on the claims made in a case.

Way to bring up the defense I myself brought up and argue it against me.

If proving defamation were that easy Glenn Beck, Ann Coulter and Rush Limbaugh would all be broke by now.

Yeah. And Ezra Klein.

Anyway, enjoy your first year of law school, kid.

Seven Machos said...

Furthermore -- There's no need to get a court to compel discovery of Althouse's comment archive. It's all publicly available.

You sure are silly.

JorgXMcKie said...

I believe I've found the source of Dead Julius' problem. It comes when he writes: "If I were a liberal thinking . . ."

That's the point. He and his liberal associates should try thinking. I know it's much, much harder than emoting, but they really should give it a shot.

tom swift said...

"Lots of things aren't in the Constitution like the right to privacy, the right to travel, etc. Yet the Constitution argument is one of the first ones proffered as if it settles the debate."

This is a very odd statement. Pair of statements. Whatever.

The constitutional argument is the only one which can settle a dispute if the matter concerns constitutionality. A tautology, and perfectly true. Rights which are not in the Constitution are not constitutional rights. Another tautology.

The question of constitutionality is the only real handle the courts have on the legislature. It comes under the courts' function of resolving disputes between laws. It is not merely a cheapjack way for the judges to pretend that they're closet legislators. Anything short of a statement in the Constitution implies no hold over the legislature, since the legislature can generally change prior acts of the legislature which are turning out to be inconvenient. But the legislature can't so modify the Constitution.

Q.E.D.

mc said...

Laughably Mr. B is "...still waiting for the Washpost to hire reporter to cover the liberal movement."

http://mediamatters.org/blog/201006280029

You can't beat sense into people.

What's the saying? Wrestling with a pig just leaves you filthy and the pig enjoys it--or something along those lines.

That said...every issue from Holder to Gore to anything Clinton cannot be effectively worked through with our media. They are willing to fold up hundred year old shops just to feel like they managed to get that last bit of propaganda out there...they are committed.

Jeff said...

What's silly is your argument that Ann was defamed. You keep saying it, but you've yet to prove it. Ann has done more to damage her reputation than Ezra's tweet. I thought liberals were the ones who were supposed to play the victim, but I can see that's not true. This is all sound and fury signifying nothing. Have fun.

Seven Machos said...

Jeff -- Sadly, you don't get to decide.

Up next for you, Marbury v. Madison. Don't forget to look up mandamus. Then, the boy who pulled the chair out from under someone. Was there intent?

Jeff said...

Tom, go tell that to a Tea Partier. Or Glenn Beck. I didn't call it a ridiculous argument because I believe it. They do.

Seven Machos said...

Jeff -- (1) The examples you brought up are things that are actually in the Constitution.

Jeff said...

Sorry, they aren't.

Here's a resource for you:

http://www.usconstitution.net/constnot.html

The "Right to Privacy" is a fine example of what conservatives like to call judicial activism. They brag about loving and supporting the Constitution but don't even know what is or isn't in it.

Next what will you tell me? Alexander Hamilton advocated for a smaller federal government?

Seven Machos said...

Jeff -- You are thinking, naturally, of sex. This seems to be all leftists can think about when it comes to the Constitution. That and, of course, abortion.

Perhaps you should read the document. You might stumble across this text: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.

This is a right to privacy.

Revenant said...

They brag about loving and supporting the Constitution but don't even know what is or isn't in it.

The right to privacy certainly isn't.

Congress is forbidden from taking actions that violate the right to privacy only (a) if the action falls outside their enumerated powers (in which case it is banned whether it violates privacy or not) or (b) if the privacy violation also runs afoul of one of the other restrictions, e.g. unreasonable searches.

Seven Machos said...

So there is a right to privacy in the Constitution, but it is limited in some ways. Like every right.

Paul Zrimsek said...

Who goes through comment sections and ignores names?

Someone who's accustomed to a forum where everyone's saying the same things?

James said...

Jeff?
"Furthermore, Ezra's comment was directed at Ann's readers not her, so it's a bit of a trick to argue she was also defamed by it."

A trick, you say? as in difficult to pull off?

You mean like a big McDonalds stockholder saying:

'Gosh, everyone - It sure does seem like those Nazis loved eating at Burger King. (tee hee) I'm just saying...'

Difficult like that imaginary example? (Seven - I felt the need to add the 'imaginary', watching your running gun-fight with him, so I don't end up wasting people's time explaining that the 2d ended before the establishment of Burger King)

Because then I don't think that word means what you think it does, Vizzini...

John said...

It is funny how Klen and Boehlert know just enough about defamation law to be dangerous. That pretty much describes their state of knowledge about anything. Yet, that doesn't stop them from pontificating on nearly anything and everything and expecting people to take them seriously.

Christoph said...

Ann, I don't read nearly all of your posts and often miss the site for weeks at a time, but when I do come I stay a while because I always think you're very fair-minded, a good writer, and even when I disagree with you (as I did strongly last time I was here commenting if I remember right), intellectually honest.

But I also like the site and you because you're really cute. I don't even think I'm the only guy who thinks so.

So I guess you have a lot of sexist commenters too.

I suppose that means you're sexist.

Ger said...

What am I missing?

Why does the Divine Miss Ann feel that she has any right to the Journolist materials?

Do we have a right to get copies of all her emails of the past few years?

dehavenje said...

Why don't they take the $100K, especially if there is nothing to hide. Then they can laugh all the way to the bank --- I just sold a bag of crap for $100,000. But they won't......

Ann Althouse said...

"What am I missing? Why does the Divine Miss Ann feel that she has any right to the Journolist materials?"

What you are missing is that I never claimed to have a right.

Ger said...

Okay..."right" was perhaps the wrong word. I didn't intend it to be used in any legal definition. My bad, I forgot a lawyer was involved.

Substitute "claim", or "reasonable justification to demand possession" or "hand them over to me cuz I said so".

Hmmm..."claim" probably also has some lawyerly-like connotations so forget that word also.

Seven Machos said...

What is property but a bundle of rights? And why can't someone ask for that bundle for nothing, or for $100,000?

Akai_Tsuki said...

I see Eric has never studied law in his meteoric rise to overrated liberal icon.
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