Jumping To Conclusions

Is Donald Luskin insane? If this post on Atrios is what it purports to be, he just might be; at a minimum, he sure doesn't have any common sense.

Dear “Atrios”:

This firm represents Donald L. Luskin, a Contributing Editor to National Review Online and author and host of Poorandstupid.com, among other activities. You recently linked to Mr. Luskin’s October 7, 2003, posting on his website entitled “Face To Face With Evil,” in which he chronicles his attendance at a lecture and book signing presented by Paul Krugman. You chose the unfortunate caption “Diary of a Stalker” for your link. More importantly, your readers, in responding to your invitation to comment, have posted numerous libelous statements regarding Mr. Luskin. Picking up on the theme you introduced, several have made false assertions that Mr. Luskin has committed the crime of stalking. Such a statement constitutes libel per se, an actionable tort subjecting both the author and the publisher to liability for both actual and punitive damages. As a result of your control over and participation in the comment section of your site, as well as the fact that Mr. Luskin has personally brought these libelous comments to your attention already, you face personal liability for their distribution.

Threatening a libel suit because Atrios (parroting Paul Krugman) accused Luskin of "stalking"? There are so many things wrong with this that I don't know where to begin. But let's start with this: for a statement to be libel, it must be untrue. Not only must it be untrue, but it must be perceived as a statement of fact. While "stalking" is certainly a real crime, it is also a figure of speech. Would the reasonable reader, seeing that comment, think that Donald Luskin has committed the crime of stalking -- that is, causing a reasonable fear of bodily harm in a victim through a course of conduct directed at that person? Or would the reasonable reader understand it to be a metaphor, understand that Luskin is being accused of being unduly obsessed with attacking Krugman's views?

Not only does the context here make it highly likely that it would be understood as the latter, but all the surrounding circumstances make it even clearer. That is, we have an anonymous speaker making the accusation on the internet. Most people who spend time on the internet quickly realize that hyperbole and overheated rhetoric is common, and doesn't have any special significance, particularly when anonymous.

The second problem with the threatened lawsuit is that it's unlikely that Atrios would be held responsible for the comments made by his readers. Atrios is providing a forum for their views, but that's not enough. Congress, in one of the few things it has done right, has provided a safe harbor for those who run "interactive computer services" so that they're not liable if a user of those services makes a defamatory statement. (That's the general rule; there are exceptions.)

Now, I should note that this is merely a demand letter, not a lawsuit, and it's possible that it is meant solely to intimidate. But if it actually provides a preview of Luskin's future legal strategy, then he and his attorneys need their heads examined. Didn't they learn anything from the Fox News-Al Franken suit? These sorts of suits make the plaintiffs look foolish and bullying, and give extra publicity to the defendants. And that's all they accomplish. What can he be thinking?