Tuesday April 10, 2007

Miami blogger receives bizarre letter from lawyer of Miami Herald columnist

Here’s something! Last November Henry Gomez did a post about Marifeli Pérez-Stable, an FIU professor and Miami Herald columnist. The post links to a report and quotes an e-mail by an Indiana University professor that makes some pretty serious accusations against Pérez-Stable:

In 1993, I wrote an academic study entitled “Academic Espionage: U.S. Taxpayer Funding of a Pro Castro Study“ for the Institute for U.S. Cuba Relations in Washington, D.C. The report was translated into Spanish and published in Miami’s “Diario las Américas” newspaper. I used only one quote from the Pérez Méndez debriefing, which indicated that one of the participants of that project, Professor Marifeli Pérez-Stable, “was a DGI agent who responded to Cuban intelligence officials Isidro Gómez and Jesús Arboleya Cervera. Pérez-Stable, who had organized another DGI front group called the Cuban Culture Circle, was receiving $100 for every person that traveled to Cuba through that organization. According to Pérez-Méndez, Pérez-Stable replaced DGI agent Lourdes Casal after her death in Havana, and the DGI and ICAP prepared the yearly plans for Pérez-Stable.”

. . . wherein DGI is the Cuban intelligence agency. Good, right? Well, I guess word was slow to get around, but two weeks ago Henry got a letter from Pérez-Stable’s lawyer basically claiming that posting the accusation consisted of slander, insisting that it be taken down, and making veiled references to monetary damages:

Please provide me within thirty days of receipt of this letter or April 28, 2007 the name of your insurance carrier with information of all available limits.

Oh, and the letter came headlined “Not for Publication.” Henry, to his credit, talked to a lawyer who assured him that not only did he not have to take down shit, he could go ahead and post the letter, because NfP requests are just that — requests, not legally binding.

Now, I have no idea whether Pérez-Stable is guilty of any of this — I rather doubt it. But I think baseless accusations are best answered with openness and information (possibly information along the lines of why your accuser might have other motives), not with legal threats. It sounds to me from reading the EFF FAQ on Online Defamation Law that Henry is very much within his rights here:

A public figure must show “actual malice” — that you published with either knowledge of falsity or in reckless disregard for the truth.

Obviously Henry made it clear that he was repeating the words of somebody else, and that individual would seem to have at least reasonable credibility. What’s this lawyer thinking, anyway?

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  1. Alex    Tue Apr 10, 11:23 AM #  

    Uh oh Alesh, you republished the email? Expect a letter yourself.

    What galls me the most of this is that the lawyer is the vicepresident of the Miami ACLU. I talked to him at the Little Havana debate and asked him why would he want to be on the wrong side of the issue. I see that letter as nothing but a chilling attempt on free speech.



  2. lara    Tue Apr 10, 04:19 PM #  

    thanks for posting this. there has been recent discussion, which i heard about on npr, about a “blogging ethics.” i think the great thing about blogging is that people are putting their thoughts out there.



  3. alesh    Tue Apr 10, 06:00 PM #  

    You asked him why he’d be on the wrong side of the issue and what’d he say, Alex?? I considered calling him for a quote for this article, but “why are you on the wrong side of this issue” didn’t seem like a reasonable question to call someone and ask. I guess I could have asked him whether he considers Perez-Stable a public figure, but whatever…

    - – -

    It’s funny you should mention that, lara, because Alex did a post about those proposed rules the other day (I think he bogarted #1, but nevermind).

    Here is a pretty good discussion of the rules, but I think the confusion comes from what sort of authority they’d originate with. The author seems to assume that the rules would be passed as law or something. The truth is that the blogger decides what goes on his blog! — the only other arbitrator is the law. Unfortunately the law needs to change in some areas, but as it comes to slander/defamation I think it’s pretty well balanced.



  4. Alex    Tue Apr 10, 10:53 PM #  

    Ooops, so I did. Thanks.

    He said that he considers it a libel (not slander, slander is used for spoken defamation) issue, not a freedom of speech issue. He said other things, but since this may end up in court, I’m not at liberty to repeat them.

    I think it was a pretty reasonable question. Given that he is the VP of the ACLU, you’ll think he’ll be on the side of the citizen journalism. An ACLU type should’t be sending chilling letters, especially to ordinary citizens. But you can think of your own brilliant question.

    And duh, of course he considers Perez-Stable a public figure. He says so himself in his letter to Henry. She is/has been, among other things, a magazine editor and publisher, a Herald commentator and contributor and is quoted/asked plenty times in the media about Cuba.



  5. alesh    Wed Apr 11, 07:00 AM #  

    Exactly!: if she’s a public figure, libel (aka defamation) needs to meet that extra standard — not just a reckless disregard for the truth, but the plaintiff has to prove malice on the part of the alleged libeler. Maybe he knows something we don’t know, but it looks to me like that’s just laughably impossible.

    He said other things, but since this may end up in court, I’m not at liberty to repeat them.

    Huh? Isn’t that something people say when they’re a party to a lawsuit? And even if you were, why couldn’t you repeat something he said??



  6. Jonathan    Wed Apr 11, 08:43 AM #  

    I don’t think the lawyer’s membership in the local ACLU chapter necessarily means anything. AFAIK local ACLU organizations are autonomous and set their own agendas. The national ACLU and its local chapters are selective in their defense of civil liberties and IMO have often been on the wrong side of important issues. There’s nothing wrong with that but there’s also no reason to be less skeptical about the ACLU than about other political interest groups.



  7. Alex    Wed Apr 11, 10:23 AM #  

    I’m not a party. It’s up to Henry if he wants to reveal anymore of the ongoing discussion – and he has a forum to do that. Sometimes these things resolve better with less publicity, sometimes they need more.

    Jonathan: rest assured I’m not skeptical of the ACLU, as I’ve been a member for several years. I do think that contributing attorneys, especially those who are/have been directors of a chapter, would prefer to see themselves failing on the side of civil liberties, not the other side.

    Conservatives often accuse the ACLU of being selective, either because they don’t know how it really operates -or just out of malice. It can’t go after every possible civil liberties case out there. It depends on contributions and the pro-bono work of practicing attorneys. The national ACLU in particular has had its hands full for a while with the myriad ramifications of the Patriot Act and the refusal of the federal courts to consolidate several cases into one.



  8. alesh    Wed Apr 11, 10:43 AM #  

    Um…. so you’re “not saying” to protect Henry? Otherwise you’re a third party at a public conversation with no obligation to remain mum, right?

    BTW, it’s a little funny, but actually lawywers are supposed to represent whatever side they’re hired by, and are supposed to be able to put their personal feelings aside.



  9. Alex    Wed Apr 11, 11:03 AM #  

    Correct, no obligation. I approached De Leon on my own, Henry wasn’t there any longer. I’m not “protecting” Henry, but since he’s the one being sued and I’m not, it’s his privacy and his decision. Obviously he published the letter and his answer, and will publish more as he sees fit.

    You keep giving me these little semi-sarcastic lessons – I know perfectly well what an attorney does and you know that. But he’s not under any obligation to accept any case, and if he does take one that IMO questions his ACLU ideals, then I can call him on that.

    In any case, why not make this into a discussion about blogger’s liabilities? I think it’s a lot more interesting. Your link to the EFF is a good start.

    For example: what are the exact charges made against Perez-Stable in the email and would they go beyond mere disagreement or dislike? And it’s a blogger (or a newspaper for that matter) liable for reproducing those allegations, even if he clearly identifies them as allegations?



  10. lara    Wed Apr 11, 12:09 PM #  

    thanks for leading me to the discussion on blogger ethics.



  11. Jonathan    Wed Apr 11, 12:41 PM #  

    WRT the ACLU, people often differ on the meaning of “civil liberties,” so saying that the ACLU defends civil liberties begs the question. I have yet to hear of an ACLU group that doesn’t oppose the right to arms, for example; and from what I remember the ACLU position on what constitutes right and wrong in racial-preferences cases is the opposite of my own. Which is perfectly OK. All I’m saying is that the ACLU is an activist group with an agenda, like many other groups. The fact that the words “civil liberties” appear in the ACLU’s name doesn’t entitle the organization to a presumption of correctness in the positions it or its local affiliates or attorneys take on particular issues.

    And it’s a blogger (or a newspaper for that matter) liable for reproducing those allegations, even if he clearly identifies them as allegations?

    I don’t see how a blogger could be liable for merely repeating an allegation. News organizations do this all the time: So-and-so is accused of…



  12. alesh    Wed Apr 11, 01:43 PM #  

    Alex~

    No sarcasm intended. Actually that part of the comment was intended for general clarification, not really directed at you.

    It’s just very odd that you’d mention having a conversation with the lawyer and then say you’re “not at liberty to repeat” what he said. What you mean is you don’t want to repeat them which of course is fine, but it concerns me because the only explanation I can think of is that he said something that makes this case look worse for Henry then the information we currently have. As far as I know as of right now nobody is being sued?!

    I’m not an expert on blogger’s rights, but my understanding is that repeating the allegations would fall into a grey area if Stable were not “a public figure” — you’re responsible for what you publish, even if someone else actually said it (the only exception is something like comments, and then only if they’re unmoderated, which is why #1 in those proposed blogger ethic rules irritated lots of people — once you start moderating comments, you take a higher degree of responsibility for their content). If she is a public figure, then libel requires proof of malice. Maybe De Leon thinks he can prove that Henry had malice towards Stable — that’d be quite a feat, though!!

    Jonathan~

    The ACLU has some wacky positions, that’s for sure. But even when I disagree with them (Steve cites an example where they fought Caller-ID on the grounds that callers had a right to anonimity!) I’m glad there’s someone out there fighting for the CL extreme.

    I certainly agree with your right to disagree with them. And it may well be true that different chapters have slightly different perspectives. But there’s an overwhelming cohesive position that is central to the ACLU’s position, and it pretty clearly goes against trying to silence a blogger trying to get to the bottom of some possible espionage, so I think Alex’s point is quite valid.

    I repeat that I believe that a blogger (or a newspaper) CAN be held liable for repeating accusations. It may depend on the source of the allegations — if the accuser is a law-enforcement agency, it’s one thing. But an unverified accusation by a private individual is another. (I think.)

    The Section 230 FAQ might shed a little light, along with the other EFF link in the post.



  13. Alex    Wed Apr 11, 02:13 PM #  

    Ah yes, the famous “ACLU oppose second amendment rights” arguments. Actually, the organization clearly says they are neutral about it (Policy #47).

    “The ACLU agrees with the Supreme Court’s long-standing interpretation of the Second Amendment [as set forth in the 1939 case, U.S. v. Miller] that the individual’s right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms.”

    So what they oppose is the belief that guns should not be regulated. Two different things. BTW, there are plenty cases in which the ACLU has opposed laws that violated other liberties in cases related to gun control, for example, illegal search and seizures.

    Now the liability: there is such thing as second and third person liability, when you repeat accusations you either know not to be true or you should have reasonable qualms about them. Newspapers are liable also under that. What’s interesting in this case — and why I think De Leon just fired a letter without looking closely at it (apart from a couple mistakes in the letter) — is that Henry is commenting on an email sent to the Herald’s publisher by the original author. He’s thrice removed from the original allegations.

    Basically De Leon could fire the same letter at you -even though you are just commenting on the controversy, and you even say you rather doubt the allegations are true. I’ll go further, under his premise somebody could put up a post saying the allegations are a fabrication and they would be liable, just by repeating them.

    And that’s what I mean by chilling effect. It has nothing to do with the merits of the case itself, just with the fact that defending against a lwasuit (and you are right, at this point there’s only the threat of one) is expensive and time consuming. Other bloggers had the same information up and took it down upon receipt of the letter.

    That was basically the gist of my conversation with De Leon as far as free speech protection. The part I’d rather leave up to Henry to discuss is the specific defenses in his case. I’d just say one more thing: De Leon is aiming at libel per se, where malice is implicit.



  14. Jonathan    Wed Apr 11, 09:49 PM #  

    The ACLU position on the 2A is a cop-out. It’s as if they said that they’re neutral about free speech and oppose the belief that speech should not be regulated, and that only speech by govt officials fulfilling their lawful duties is Constitutionally protected. Which is obviously absurd. And I think they are misinterpreting Miller too. My understanding is that Miller implies that the only weapons whose possession by US citizens is Constitutionally protected are weapons that are suitable for military use. Do some googling if you want to learn more about the case from people who take it more seriously than the ACLU does.

    But not to digress. My point (to reiterate) was that there are multiple definitions of civil liberties, and the ACLU’s positions are not obviously the best ones. Plenty of people, probably many more than belong to the ACLU, believe strongly in civil liberties yet disagree with the ACLU on important issues. For example, Wikipedia says the ACLU had 500,000+ members in 2005. Meanwhile the National Rifle Association has around 4 million members. And that’s just one civil-liberties issue on which the ACLU is at odds with a lot of other people. So I don’t think the ACLU is owed any more deference than are other civil-liberties supporters, and given its modest membership size it may be owed less deference than are some of its competitors.

    As for why an ACLU-affiliated attorney is helping this professor go after Henry, I don’t know. Seems to me that she is a public figure and Henry is not acting maliciously. But, again, what do I know. I do know that threatening bloggers with lawsuits of this type is, as a practical matter, much more likely to bring bad publicity to the people making the threats than it is to silence the bloggers.



  15. Alex    Thu Apr 12, 12:08 AM #  

    Well, you ar wrong in both analogy and interpretation. The analogy because the 1st and 2nd amendments are not comparable in scope, as written. It doesn’t say “a well regulated” anywhere on the 1st amendment.. You’ll note the ACLU position is that the government has the authority to regulate weapons and that doesn’t infringe our rights, just like a driver’s license an a car registration doesn’t infringe your freedom of movement. BTW, they don’t say anywhere that only “government officials performing their public duties” are protected by the 2nd amendment, as your analogy suggests.

    The interpretation of Miller is totally the opposite. Is “military use” weapons that are not protected, as you’ll find out real quick if you try to buy a tank, a rocket launcher or a nuclear warhead. I don’t think you need googling to verify this.

    Comparing the NRA to the ACLU in terms of defense of civil liberties is a joke. The NRA has an extremely narrow agenda. Just because more people endorse something doesn’t imbue it with credibility. American Idol is the most popular TV show by far.



  16. Christopher Jahn    Thu Apr 12, 01:21 AM #  

    The ACLU has 500,000 members.
    The NRA has 4 million.

    Why is that? Is it because the NRA is “better” than the ACLU (as Jonathon seems to imply?)

    Not at all-

    NRA members can get discounts on products by showing their membership cards.

    ACLU members get shot at when they show their membership cards.

    No mystery at all.



  17. Jonathan    Thu Apr 12, 08:26 AM #  

    Your responses perfectly illustrate my main points, which are that opinions about the scope of civil liberties differ, and that therefore the ACLU and its idiosyncratic understanding of civil liberties do not deserve any special deference.



  18. Alex    Thu Apr 12, 10:16 AM #  

    OK, but any reasonable person would say the ACLU is at the forefront of freedom-of-speech issues, regardless of whether they agree with the prganization or not. Certainly more than the NRA, which I’d guess is pretty supportive of the Patriot Act, for example. So it’s very valid to question De Leon.



  19. Jonathan    Thu Apr 12, 01:49 PM #  

    OK, but any reasonable person would say the ACLU is at the forefront of freedom-of-speech issues, regardless of whether they agree with the prganization or not.

    No, the ACLU is at the forefront of advocacy for a particular leftist view of freedom of speech, a view that many believers in free speech disagree with. This view treats political speech as deserving of protection but not so-called commercial speech. It treats some kinds of personal behavior on public property as matters of free expression, but it treats religious behavior on public property as not deserving of Constitutional protection. If you ask me, the Libertarian Party, despite its political ineffectiveness, is much more on the forefront of freedom-of-speech issues than the ACLU is. But maybe I am not a reasonable person.

    BTW, you might read this.

    Certainly more than the NRA, which I’d guess is pretty supportive of the Patriot Act, for example.

    The NRA doesn’t support the Patriot Act. IIRC the NRA and the ACLU took a common position on this issue.

    So it’s very valid to question De Leon.

    Who said it wasn’t?



  20. Alex    Thu Apr 12, 02:38 PM #  

    Ugh. I won’t go to the trouble of finding all the instances where the ACLU has defended decidedly right-wing speech and religious speech, because you either know of them already or are certainly capable of finding them. Maybe you just can’t see the diference between regulation and supression (_regulated_ commercial speech, exclusivist religious speech. You are not a consequentialist, are you?). Following that logic, anarchists are the biggest defenders of civil liberties.

    BTW, I’m sure the irony of your cute link game is lost on you, since Libertarianism is a circular argument by definition.

    The NRA doesn’t like the Patriot Act? Strange bedfellows indeed. I don’t care much for the NRA to be updated on their every position. But I would bet a good number of those 4 million members agree with it.



  21. alesh    Thu Apr 12, 04:06 PM #  

    LOL, Christopher.

    Alex~ I still agree that De Leon’s position is peculiar in light of his ACLU membership (then again, on its face the position would be peculiar from any lawyer, as it’s apparently so groundless).

    Having said that, Jonathan raises an interesting point that has had some influence on what I think of the ACLU. I generally think of them as taking the broadest possible interpretation of civil liberties principles and issues, which they are clearly not doing in the case of gun laws. Not that their position is indefensible.

    Currently the top three issues on the ACLU’s “Ugrent Action” list are Shutting down Guantanomo, Condom distribution, and reversing the Patriot Act. Surely gun restrictions are closer to the concept of civil liberties two of those issues?

    Unlike Jonahtan, I actually happen to agree with the ACLU on all of these positions. I just happen to think that it tarnishes their claims to protecting civil liberties in the broadest possible sense.



  22. Jonathan    Thu Apr 12, 05:46 PM #  

    “...I won’t go to the trouble of finding all the instances where the ACLU has defended decidedly right-wing speech and religious speech, because you either know of them already or are certainly capable of finding them. Maybe you just can’t see the diference between regulation and supression (_regulated_ commercial speech, exclusivist religious speech. You are not a consequentialist, are you?)...”

    You are confused as usual. The ACLU defends all kinds of people but only certain kinds of activities. I was referring to the range of activities that the ACLU defends, not to the identity of the people pursuing these activities.

    As for the difference between regulation and suppression, this is a matter of degree and intent. For example, handgun ownership is theoretically permitted in New York City, but the regulations there make it so burdensome as to be effectively prohibited. I don’t think the ACLU minds, because they do not recognize the right to arms, but consider whether speech would be free if the same “regulation” that NYC applies to guns were applied to, say, newspapers and blogs. This is the exact reason why the ACLU opposed the McCain-Feingold law, the proponents of which argued that it imposes only reasonable restrictions and not suppression on speech. (Just to make it clear, in case you haven’t figured it out, I think McCain-Feingold is a bad law.)

    I don’t see the difference between commercial speech and religious speech. “Exclusivist” is a label you stuck on, not an obvious or meaningful characteristic of religious speech. The Constitution, to which the ACLU pays limited deference, does not say anything about speech being free unless it is exclusivist.

    BTW, I’m sure the irony of your cute link game is lost on you, since Libertarianism is a circular argument by definition.”

    Your comment doesn’t make sense. Libertarianism isn’t an argument, it’s a political doctrine.



  23. Jonathan    Thu Apr 12, 06:03 PM #  

    Alesh, I agree with the ACLU on some issues.

    What I dispute is that they take the “broadest possible interpretation of civil liberties principles and issues.” They take a strong position that is characteristic of the civil-liberties views of people on the Left side of the Democratic Party. But they do not take strong, pro-civil liberties positions on the right to arms, the free exercise of religion or the application of anti-discrimination laws to racial-preferences programs.

    As I wrote before, there’s nothing wrong with any of this, but at the same time it’s not reasonable to treat the ACLU as though its positions were somehow the default pro-civil liberties positions.

    This kind of discussion would be much improved if we could stick to specific issues and avoid labels as much as possible.



  24. Alex    Thu Apr 12, 09:42 PM #  

    “I was referring to the range of activities that the ACLU defends, not to the identity of the people pursuing these activities.”

    Silly verbal contortions. You said “a particular leftist view”, which is not true, and “treats religious behavior on public property as not deserving of Constitutional protection” which is not true either. “Exclusivist” means it excludes all other religions as a matter of official policy. When you have Christian prayer in public schools, that’s exclusionary and not protected. That is not just the ACLU’s view, it’s the view of the courts.

    “I don’t see the difference between commercial speech and religious speech”

    Uh? You were the one who brought them up, so if you are confused don’t blame me. You meant to say all speech is the same? You got a couple hundred years of jurisprudence and a mountain of settled law to reverse. Better get to work.

    “Your comment doesn’t make sense. Libertarianism isn’t an argument, it’s a political doctrine.”

    A political doctrine at its core is an argument. But whatever, call it what you will, libertarianism is still circular logic. I guess it doesn’t make sense to you, “as usual”, but if you haven’t figured that out by now, lotsa luck with your “politically inefficient” “doctrine”.

    “This kind of discussion would be much improved if we could stick to specific issues and avoid labels as much as possible.”

    Ha! Mira quién habla.