I’ve always been a committed fan of free speech. More than a fan, actually: it was something I believed in fighting for.
In my previous career as an Internet professional I became more and more concerned that when it came to speech taking place over the Internet, free speech values were too easily being compromised. I went to law school in order to put myself in a position to do something about it. So when I saw the Popehat Signal seeking a lawyer’s assistance to defend someone’s speech, I knew I had to answer the call.
Charles Carreon, an attorney, had raised the ire of many on the Internet through his unfounded litigation, both threatened and actual, against the web cartoonist Matt Inman. One of his many critics began a blog, at Charles-Carreon.com, where a “Satirical Charles” blogged about his exploits in an exaggerated manner as a method of commenting on Carreon’s quixotic legal endeavors. He began it anonymously, using the anonymous domain name registration service provided by Register.com. Unfortunately Carreon, incensed at the mocking commentary, used the threat of a trademark infringement lawsuit to pressure Register.com into revealing the blogger’s identity. Once armed with that information he then threatened to sue the blogger via a 10-point letter that essentially said, maybe not today, and maybe not tomorrow, but someday, when it would be most expensive, inconvenient, and difficult to defend, Carreon was going to sue the blogger for violating Carreon’s trademark rights in his name.
Carreon does indeed have a trademark in his name, but that fact is irrelevant. Trademark law does not preclude others from invoking an otherwise trademarked term in commenting on the subject. Were it to do so the law would run afoul of the First Amendment’s guarantees of free speech. Thus the threats to sue the blogger for such commentary also ran afoul of those First Amendment free speech guarantees.
But First Amendment rights don’t defend themselves. Left on his own, the blogger would either have had to run a huge risk of fighting and potentially even losing an expensive lawsuit, or he would have had his speech chilled if he took the safer path to yield to the threats and stop blogging about Carreon’s belligerent behavior. Fortunately he was able to obtain counsel in the form of Paul Levy from Public Citizen, but as a DC-based lawyer Paul needed local counsel to help get access to the California courts, and that’s where I came in. Carreon’s threats to sue made it necessary to head him off at the pass and sue first, and so we did, asking a court to declare that the blogger in no way violated any of Carreon’s rights in using the domain name for his commentary. My job was to help achieve that result.
Which was surprisingly difficult. Filing the lawsuit itself was fairly straight forward (apart from some atypical delay caused by transient problems in the electronic court filing system that day), but filing isn’t enough: in most jurisdictions a lawsuit doesn’t really get going until the defendant has been served a copy of it, officially putting him on notice of the lawsuit and starting the clock on requiring a response. Normally service is very straight forward, but in this case it was anything but as Carreon meticulously avoided it, first by not accepting service via email (which was his prerogative but would leave him having to pay for the costs incurred in serving him otherwise), then by refusing to accept a copy of the lawsuit by mail (indeed, instead of accepting it he put it in an envelope and mailed it back!), and then by refusing to answer the door for the process server we had to dispatch on multiple occasions. All of this became very expensive in terms of cost and delay and was extremely inappropriate, particularly for a member of the bar with duties to the profession and the courts he practiced in. Eventually I had to personally serve him by locating him outside a one of these courts where he had just appeared for a hearing on behalf of a client.
Which is what officially began the case, but no sooner had it begun when it ended. In an attempt to avoid having to pay the extra costs associated with the service, he offered a complete settlement on the merits and a small sum of money for “costs.” This represented a good deal (for us!) because it left our client’s free speech rights vindicated yet didn’t preclude recovery of the fees for the time we had expended in the case so far.
Generally speaking, in the United States each party in litigation pays its own lawyers’ fees. But there are certain laws like the Lanham Act, which governs trademarks, that allow for attorney fees to be recovered by the prevailing party. Under the Lanham Act this recovery is reserved for “exceptional” cases, and we argued that this case most definitely qualified as one.
Unfortunately the court only partially agreed: we had argued that the 10-point threat of litigation against the blogger was so egregious as to have rendered the case exceptional from the outset, but the court felt otherwise and denied recovery of fees from that portion of the case. The court did, however, award the fees involved with the difficulty in effecting service at the beginning, and it also awarded fees incurred for responding to his “unnecessary, vexatious, and costly tactics” once we had begun the process of asking the court for our fees. Instead of making cogent arguments against such recovery – arguments it appears the court would have been amenable to – Carreon instead had tried to pursue an ever-rotating set of fantastic theories of malfeasance by our client’s counsel. Carreon’s efforts in this regard included demanding discovery (and, particularly onerously, of privileged communications between client and counsel and attorney work product), which is something that normally happens near the beginning of a lawsuit, not after the merits have already been decided, and caused us to spend more time, energy, and money to address. As a result, the court decided, Carreon snatched defeat from the jaws of victory and turned this lawsuit into an “exceptional” case warranting our recovery of the fees accrued for the time we spent having had to respond to this conduct.
Ultimately Friday’s ruling represents a solid victory for us, our client, and the free speech ideals that had been threatened. Recovering the fees (note: we still need to collect, but the ruling awarding them is a crucial first step) is a nice reward for our efforts and good for the cause of defending free speech in the future. It’s important that people like our client can get legal help when faced with groundless threats against their speech, and there will be many more sources of help when those lawyers can somehow get paid for providing it. Also, dunning aggressive litigants for the expense incurred by their unfounded legal bullying has the effect of dissuading others from pursuing the same tack, thereby leaving more speech to thrive.
It has been a privilege to help fight for this outcome, and I’m glad that when the call for help came, I was able to step up and do so. As I said above, this is exactly the type of work I became a lawyer to do, and I am proud to have gotten the chance to.