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Luskin v. Atrios: WTF??

| 87 Comments | 5 TrackBacks
Calpundit links over to Atrios - who has received a lawyer-letter from an attorney representing Donald Luskin. The claim is that by claiming that Luskin 'stalked' Krugman, and by allowing commenters who then spun off of that theme, that Mr. Luskin was libeled. God knows, I'm not a fan of Atrios, who I think is part of the Jackie Goldberg/ suicidal-lemming wing of the Democratic Party. But this is just embarrassing.
Luskin - who, as far as I know, is a grown-up, writes with pretty sharp elbows himself:
Paul Krugman began his Tuesday column for the New York Times - inevitably, about the blackout - with one of the few truthful statements I can ever recall him uttering: "We still don't know what started the chain reaction on Thursday."
And it seems like pots should be careful about calling kettles black, no matter that the pot has been careful to tread - barely - on the side of the line which divides actionable from exceptionable behavior. And pundits who use slings ought to be able to take a stone or two, and the fact that Mr Luskin can't - the fact assuming that the letter Atrios posted was genuine (and the lawyer's name does check out on the firm website) - certainly drops him a few kilometers below credible in my view. Free speech - even hurtful speech - is something the folks at NRO (and others) have championed for some time. It appears that they neglected to mention that it only matters when someone else's ox is being gored. Personally, I'm hoping it's some kind of prank. In that case, I'll personally email Mr. Luskin an apology. Watching and waiting...

5 TrackBacks

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Luskin v Atrios stirs some memories from Deinonychus antirrhopus
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87 Comments

This is un-f---king-believable. I had come over to post any comment anywhere to draw attention to this outrage to find that you're already on top of it. (I had even formulated in my head the bit about "I am no fan of Atrios, but".)

I have to hope that the letter is a prank and that NRO would feel great embarrassment at being associated with this type of intimidation. But if that were so, then the lawyer and his firm are being misused/defamed.

Luskin may be carrying his point too far, but he actually has a point. He is being accused of serious misconduct or criminal activity.

Accusing someone of a crime is libel. Repeating a libel, knowing it to be a libel, is also libel. I'm all for free speech, even for the rough-and-tumble, but intentionally accusing someone of a crime is actionable.

Defamation FAQ

I dunno. Perhaps it might be useful for a libel suit or two. There has been a lot of crap lately written down that's just not true---take for instance, the whole imminent meme. Might be good for people to think about what they're writing before they go off and spout.

Luskin may be carrying his point too far, but he actually has a point. He is being accused of serious misconduct or criminal activity.

Nope, nope, nope. As many commentators have pointed out, "stalking" has many meanings besides the definitions contained in any criminal statutes. Atrios never said "Luskin has committed the crime of stalking."

Luskin has described himself as Paul Krugman's stalker in the past. (It's called a "metaphor", though as Matt Yglesias has pointed out, conservatives have declared war on metaphor.) Atrios was only repeating Luskin's own self-description.

Luskin has, however, called himself a stalker.

Robin's beyond dead wrong on this one.

Is any of this actionable? Beats me, I'm not a lawyer. But I don't see the point in dragging NRO into this. Sure, they publish Luskin's work, but I see no evidence that they're in any way connected to Luskin's lawsuit, supposing it's legit.

I do wonder about the wisdom of Atrios posting the Upton letter. Seems strange to me.

Someone give me the heads up here please, Cliff Notes version -

IS
1) Luskin suing Krugman?
2) Luskin suing Atrios?
What is the deal with Atrios? explain simply please.

Luskin is stupid to sue here, he's just showing that he's petty and ruining his own credibility. The guys at National Review have a reputation for being excellent writers and professionals. If you want all out flame warfare go read Ann Coulter, whom they kicked out for being sloppy as well.

Luskin suing diminished himself as a professional and NRO as well.

It seems obvious to everyone that Luskin is just doing this for some spiteful fun and tit for tat. In the process he makes himself look worse and Krugman look sympathetic. I even sympathize with the arrogant runt a bit, Luskin's going way too far. He's being an asshole and diminishing his own logic in the end!

Where's Joe Katzman when you need him?
Joe give this schmuck a call please.

Mike

The link to evidence that Luskin "called himself a stalker" doesn't work.

My gut feeling is that there's some nefarious double-secret probation counter-espionage going on here. That is, it's an effort to discredit Luskin by making him appear anti-free speech.

2 can play that game. Have a look at this Instapundit post.

Thanks, that just makes him look even more lame.

2 can play that game. Have a look at this Instapundit post.

Thanks, that just makes him look even more lame.

Sad turn of events - Luskin was cruising and had attained the high ground (partly due to Krugman's ill advised "stalking" comment). Now Luskin has thrown himself back into the dirt. Bad move regardless of the legal question.

I'm certainly no fan of suits intended to silence speech, but libel laws exist for a reason. And I'd like to point out that in the anti-speech suit I've been following on my blog, the only relief the targets have seen has been through a libel suit.

If Luskin has no case, nothing will happen beyond threatening letters -- unless he chooses to go the loon route and represent himself. If Atrios believes he did nothing wrong, he should be prepared to defend himself. If you think Atrios did nothing wrong, then maybe you should help him out with his defense -- chip in a little cash to defray the legal costs, or whatever.

Is Atrios in California? Or in some other state with a strong anti-SLAPP law?

here is the url for Luskin's calling himself a stalker

http://www.nationalreview.com/nrof_luskin/truthsquad050703.asp

The big question no one is asking, of course, is... how does someone sue a supposedly anonymous blogger?

the lawyer says he'll go after Blogspot to get Atrios' real name. but that's nearly impossible, since Blogspot doesn't ask for your name or any other ID when you sign up - just a username and password. all you could do is track IP addresses for postings, which would be a big hassle potentially involving many ISPs fro mBlogspot to Atrios.

Atrios is in PA, i believe (Philly).

After trolling through the comments to the post in question, I'm convinced that this is the comment Luskin's lawyers were referring to. There are a few others who nod in agreement and make references to Hinckley.

Pretty tasteless, but is it libelous? Claiming that someone has committed a crime is libel per se, but would the suggestion that someone is so unhinged that they have a propensity to kill someone also be included?

Considering Luskin's lawyers have so far declined to cite the offending post themselves, I have to agree with Atrios that this is an attempt to intimidate him by "outing" him through a subpoena.

Uh, learn to read your links, folks. Luskin's statement was clearly a sarcastic response to this: "He's even starting to get personal — referring to me in his latest posting as his 'stalker-in-chief.'"

Gus -- That's your evidence? Where does Luskin call himself a stalker?

Let's see... are you referring to the title? But that's a reference to Krugman's calling Luskin the "stalker-in-chief". Anyone who wants to defend Krugman or Atrios on this basis had better think twice -- it's not really a defense.

Searching that page for "stalk" only finds three instances -- the title, the quote from Krugman, and a link to the same article in the sidebar.

Nowhere do I see Luskin say "I'm stalking Krugman" or "I'm Krugman's stalker". I can't see any indirect statements to that effect, either. In fact, I see that Krugman has twice accused Luskin of stalking him.

Where do you see Luskin calling himself a "stalker"?

Remember, folks, for it to be actionable, the statement about Luskin not only has to be a lie, he has to suffer damages. Good luck on that part.

Not if it's libel per se, J. Michael.

If this lawsuit is real, it's ridiculous, whether or not it has any possible legal legitimacy. I don't think anyone seriously believes that Luskin is "stalking" Krugman in anything that approaches the legal criminal definition. Atrios said something stupid? Well, dog bites man.

I think Luskin does an excellent job of exposing Krugman's lies and distortions, but, ironically, sometimes falls prey to the same character faults that he rightly criticizes Krugman for. Namely, that he is too thin-skinned and is unwilling to admit his mistakes. He would actually be a much more effective critic of Krugman if he would tone down somewhat.

Isn't Luskin also a "public figure" ?-- if so, wouldn't that raise the bar so high that Luskin couldn't win?
Especially when Luskin's NRO column about Krugman (cited above) appears to be titled "We Stalked. He Balked.".

How about some hypothetical scenarios?
Is it possible that Luskin thinks he can intimidate Atrios by having deeper pockets -- that Atrios doesn't have the money to fight a long battle? But ,if so, wouldn't Luskin (and anyone else funding Luskin ) then be opening themselves up to a massive countersuit? Any lawyers out there?

Pretty tasteless, but is it libelous? Claiming that someone has committed a crime is libel per se, but would the suggestion that someone is so unhinged that they have a propensity to kill someone also be included?

Yes.

"Libel per se applies only to slanderous publications which impute to the plaintiff one of the four following categories:

1. a crime involving moral turpitude,
2. a loathsome disease (e.g. a sexually transmitted disease),
3. Unchastity (particularly concerns women)
4. conduct that would adversely affect ones business or profession"

http://www.chillingeffects.org/defamation/faq.cgi#QID526

Accusing someone of being insane to the point of being a danger to others falls into categories 2 and 4, IMHO.

And here's what Luskin has to prove:

"Ordinarily 4 elements must be proven by the plaintiff:

1. The making of a false statement of fact concerning the plaintiff.

2. An unprivileged "publication" of that statement to someone other than the person defamed.

3. The statement is understood in such a way as to damage the reputation of the plaintiff.

4. If the defamatory matter is of public concern, fault--at least amounting to negligence on the part of the publisher."

http://www.chillingeffects.org/defamation/question.cgi?QuestionID=408

Items 1, 2, and 3 are slam-dunks. The fourth one is where the defense would hinge, IMHO.

Oof, that's embarrassing, Jeffrey Upton is a fellow Brunonian. Anyway, I'm a lawyer (not a First Amendment specialist, but then, neither is Mr. Upton, nor, obviously, is Mr. Luskin), and, without having read the offending comments, I'll hazard a wild guess and say there's no remote possibility that they're actionable. Mssrs. Upton and Luskin need to have a gander at a little-known case known as New York Times v. Sullivan (U.S. 1964) - sorry, don't have the cite handy, but it should not be necessary to anyone who has graduated law school. Speech critical of public figures is protected by the 1st Am. unless it exhibits "actual malice," i.e. unless it's untrue and the speaker or writer knows that it is untrue. This is on top of the fact that, as posters have noted, no one commits libel by making a generalized suggestion that someone is a 'stalker' when that person constantly comments on his target, attends that person's public events, and even off-handedly refers to himself as a stalker. It's (barely) conceivable that some Atrios commenter could be shown, in court, both to have actually accused Luskin of something which would damage Luskin's reputation and to have actually known that the accusation was false. But the idea that Atrios is responsible for every single implication of every single commenter on every single thread - especially when the odds of a commenter committing actionable liber are very, very remote - is laughable.
Mr. Upton could fairly have issued a polite request that Atrios correct any false impressions, but starting out with a threat of a lawsuit? I can't wait to see it. Filing frivolous lawsuits is grounds for sanctions; Upton and Luskin would probably end up owing Atrios money.

Item 1 is hardly a slam dunk. If a comment is reasonable understood to be satire or the like, it is not a false statement of fact. It is a question of fact, but there is a strong argument that all of the stalker comments were merely satirical - i.e., intended as derisive comments on Luskin's, uh, focus on Krugman, rather than as truthful factual statements about Luskin's state of mind - and were understood as such.

Robert, I agree with your assessment that a straight-up libel case would hinge on damage, which is questionable at this point.

But my question was whether a comment about someone's propensity to commit a crime would fall under the definition of libel per se, and I'm not sure it does. A comment like "Luskin might just try to kill Krugman he's so obsessed with him" is not even a statement of fact.

Speech critical of public figures is protected by the 1st Am. unless it exhibits "actual malice," i.e. unless it's untrue and the speaker or writer knows that it is untrue.

You might want to read New York Times v. Sullivan again. I think there's something in there about "reckless disregard" for whether the statement is true or false.

Accusing someone of a crime is difficult to pass off as "satire", particularly (in Krugman's case) when that accusation is made on a news program.

In the case of Atrios, if the comment in question is the one Bill Herbert pointed to, the tone is not satire, and neither are many of the comments following.

Have a look at this nothing.

Have a look at this nothing.

Bill -- there are a lot of entries in that comment thread that out-and-out state Luskin is insane.

IMHO, Atrios should at least try to do the minimum they're asking him to do. It can only help his position, and it might avoid a costly, painful suit. Even if he has a good defense, the lack of loser-pays makes it a losing proposition for him.

"Accusing someone of a crime is difficult to pass off as "satire."

First, no one accused Luskin of commiting a crime. The term stalker has meanings outside of its criminal definition.

Second, the fact that a comment was made on a "news program" (I believe it was on one of the cable babble shows, no?) doesn't change the legal status of the statement. You can make satirical comments on "news programs."

Third, the tone is a question of fact. I read the comments and didn't take them seriously. I thought everyone was joking and did not think for a second that anyone had any factual insight into Luskin's state of mind. Reasonable people can disagree, but I'm sure many others took them to be jokes. In the comments of many blogs, insults fly fast and furious - the most offensive ones are often the most satirical.

Since most of aren't 2L (2nd year law students), I'll suggest a redirection - there's a spirited set of dialogs going on; in the media, in publications, on the Web in journals and blogs.

A lot of that is overheated; I've specifically targeted Hesiod as someone who drives the dialog downward with an overemphasis on vitriol and a general tone of disrespect.

I don't like that. It's not interesting, it's not fun, and it's not effective (look up the phrase "gone to the White House, ha, ha, ha").

But we have somehow lost the capability to either brush off the mud, or to use social pressure or maybe our own wits to respond. Instead we reach for a lawyer - or a gun.

And that's bullshit.

Luskin was unhappy about what was said about him? Hell, he has a national magazine to stand on as a platform. The cure for bad speech is more good speech.

Instead, he moves to intimidate Atrios; to silence him.

I firmly believe that the pro-Palestinian forces on campus have the right to organize, speak, and otherwise publicly show their beliefs. What they don't have a right to do is shut out and shup up people who disagree with them.

The difference between what Luskin is doing and what the pro-Palestinian thugs who break up college speeches in favor of Israel is simple - he used a lawyer, and they use chairs and trash cans.

And they're equally worthy of our disdain.

A.L.

So Luskin defenders think the blogger is legally liable for the comments on his site? So if I posted: "I think Atrios, Kofi Annan, and Tom Daschle should be shot. I'd like to recommend this course of action to any readers.", that would mean the proprietors of this (fine) site would be liable if Daschle wanted to sue.

Bloggers can not be responsible for their insane commentators. That's the important principle here.

Quite wrong A.L., the moral equivalence you propose is actually offensive. And I think you lower the very discourse you attempt to defend. In your comparison, the thugs violate the law; Luskin works within it. Libel law remains a part of our society of laws.

Bill Herbert,
Ah, you're right, it's been a little while and, yes, you've corrected me (as I said, not a First Am. specialist) - it doesn't have to be actual knowledge of falsity, it can be reckless disregard for the truth. That's quite a high standard, though - recklessness is higher than negligence, and comes quite close to a knowledge standard. The Court's general point, of course, was that there's a very wide berth for criticism of public figures. In a situation where Internet commenters read some remarks about a public figure such as Luskin, conclude that he's obsessed with Krugman, and then toss off a metaphorical accusation that he's a "stalker," could that be shown to constitute reckless disregard for the truth? I don't see how it's possible. Even if some commenters were levying an actual, serious accusation that Luskin was committing the felony of stalking Krugman, could anyone show, with admissible evidence, that said commenters displayed "reckless disregard" for the truth? Again, I can't envision how that's possible.

Sym, the responsibility varies depending on several factors including how much editorial control exercised by the site owner, but the bottom line is that the law does require responsibility.

Robin, as someone who has probably spent over a million and a half dollars (little of it my own cash, fortunately) in legal fees in my career, I'm amused by your position.

One of the major failings of our society - one usually pointed out by the right - is the collapse of social norms, and their replacement by inflexible and usually badly-applied regulation and law.

The fact is that merit only has a small part to play in resolving a conflict once it goes legal. the cost - in money, energy, and attention - becomes the determining factor as each side attempts to see how recently the other party read 'Bleak House'.

A.L.

Sym, if you said that and there was nothing done by the proprietor of this blog in response (a "fuck off, troll" at minimum), I would seriously question whether he was actually encouraging such comments or not.

All true, A.L., and yet that doesn't close the distance between illegal physical violence and legal process.

Bill -- there are a lot of entries in that comment thread that out-and-out state Luskin is insane.

IMHO, Atrios should at least try to do the minimum they're asking him to do.

Yes, there are a few comments on the thread that cannot reasonably be deemed "satire." But I don't agree that Atrios is at all obligated to remove something that, according to him at least, they won't even specify.

He emailed the attorney to ask for the specific comment they deemed libelous and hasn't heard back from them.

Interesting. A key point here, I think, is that Krugman himself has specifically accused Luskin of stalking him literally, not metaphorically. Then Atrios calls Luskin a stalker, without specifying whether he means literally or metaphorically. Normally such a case would be a slam-dunk for the defense, since it should be assumed that the metaphorical definition was meant. Question: does the fact that Atrios's comment was made after Krugman specified that he meant it literally, indicate that Atrios also meant it literally? I don't really see it, but I suppose some sort of case can be made along those lines.
I certainly think Luskin has a good case against Krugman. Anyone know whether he's pursuing one?

1) as shown, luskin has not accepted the use of stalker, rather he has attacked it. the "we stalked" is not attributable to him (it's a headline, almost always not written by the writer) if he didn't write the headline, he'd be well advised to have it changed (add ""s or remove stalked from the head)

2) stalking is a crime, and all common usages refer to that. calling someone a "stalker" doesn't connote that someone is hunting deer in common usage, rather one is trying to connote images of psychopathic individuals bent on killing/maiming/kidnapping their victims.

3) krugman's usage is directly related to luskin's pursuit of him in print, and is attempting to characterize it as criminal. this seems to be prima facie libel

4) atrios... well anything that takes him out has my support, though not sure how well this could be carried out in court (the town drunk saying mean things about you doesn't really amount to libel... its more likely that havng atrios saying nice things about you would be harmful to your reputation and possibly libel)

5) getting worked up over someone suing for this is BS... forum shopping (perle, i think) or suing for something that is true is much worse than this... ann coulter calls someone a traitor, which is similar, if not worse, but she backs it up by referencing people's actions and words which in her mind make them traitors... bill got called a rapist frequently, but there were women making the accusation... vince foster did have a rather mysterious death, etc... luskin's behaviour is on the record and is completely legitimate, not even close to criminal (he's denouncing krugman's opinions in print for goodness sakes, not saying how much he'd like to eat his liver or have his children or whatever)

6) This only makes NR look bad cause you want it to look bad... they don't exactly have control over who he sues... and you're trying to judo the intimidation by saying that it harms their rep... pot, kettle, frying pan...

Luskin is hardly NR's biggest problem... a little something called "Derbyshire" is NR's biggest problem.

HH, funny last post, though Derbyshire, unlike Luskin, can actually do math.
But by your standards of blog policy, I'm sure the Rottweiler or LGF's commenters have made libelous/violent/threatening comments about Daschle/Chirac/Annan/Krugman. The owners of the sites did not add 'fuck off, trolls'. If Tom Daschle or Krugman actually started suing right-wing blogs, they would be laughed out of court and roundly denounced by the blogosphere. People have been called far worse than Luskin has by bloggers and by commenters. I think bloggers should have the right to call people whatever they want to call them. Some people here seem to believe that should be a crime.

others, did Krugman ever clearly announce that Luskin was literally stalking him? He never took legal action, or said 'Luskin is literally stalking me.' For all we know, he was using it in the same metaphorical sense that Glenn Reynolds did.

Sym, Krugman in fact did say that Luskin was actually stalking him during an interview, I think on FNC. I ain't going to bother looking it up, so take it for what it's worth. Maybe someone else will. It's definitely out there.

Mac Thomason: Nice attempt at a troll on both yours and Yglesias' part, but rather like a saltine cracker in substance (i.e. it has none).

Need you actually be reminded that it was DeLong (who, I assume, falls on "your" side in this debate) who took Reynolds to task for calling Krugman's "stalker" (literal) comment inappropriate when Reynolds had previously suggested that Luskin was "stalking" Krugman in the clearly figurative/metaphorical sense?

Seems like people on both sides of the debate are capable of acting and reasoning like third-graders in a cafeteria. See also, your post.

Robin -

I'm glad we agree on something!

But my core point is that it's equally possible to be a bully with a stick and with a three-piece suit, and that in either case, we respond first to the intent - to bully into silence - and then, appropriately, to the means.

A.L.

Re hey's comment "as shown, luskin has not accepted the use of stalker, rather he has attacked it. the "we stalked" is not attributable to him (it's a headline, almost always not written by the writer) if he didn't write the headline, he'd be well advised to have it changed (add ""s or remove stalked from the head)"

I would note:
1) I personally doubt that Luskin's NR column --or much of NR for that matter -- receives the service of an editor.
2) As I recall, the column "We stalked. He balked"
was published in May 2003 --kinda late to argue that the impression given in the column's title has not spread throughout the blogsphere -- or that, at this late date, that impression can be put back in the bottle.
3) Similarly, kinda hard to argue that Luskin disagrees with the depiction --given that he has apparently not had the title changed in the months since it appeared.
4) Similarly, it could be argued that the concerns expressed by some of Atrios' commenters were, in part, fanned by the words of Luskin himself.

In my opinion, a jury looking at Luskin's past columns on Krugman might very well conclude that
Luskin's comments were not objective criticism of policy differences, but were wildly emotional, irrational and filled with many distortions indicative of compulsive hatred.

If so, Luskin might find it very hard to prove that Atrios commenters showed a reckless disregard for the truth --that their comments about him had no connection to reality.

I think Luskin has a case. You know, you have to be responsible for what you post - even on the Internet. Just because your not a professional journalist doesn't mean you can get away with calling someone a "stalker" when they are not. That's like calling Charles Johnson of LGF a "child rapist". Oops, that did happen. (Indymedia said he was "arrested for sexual harassment of mentally challanged children"). Don't you think he should be able to sue?

Luskin was on Hannity & Colmes a few nights ago. He's likely suing Krugman (for calling him a stalker), unless Krugman "publicly appologizes". (Yea, Right)

Larry -

Yes, Krugman did say that Luskin "stalked him", even "publicly". Which is, of course, false.

Krugman deserves it. Atrios, not really, but they shouldn't of posted up the letter/lawsuit, and instead should of just deleted the blog entry.

A. L.

Bullying "Atrios"? No, you don't bully pseudonyms. Atrios can change his handle any time he wants and have a reputation as good as new - does Luskin have the same option?

If Atrios is not willing to be outed, then why should he have free rein to traffic in this stalker nonsense, figuratively or otherwise?

This isn't against pseudonyms per se - you in particular have behaved responsibly IMO.

But Atrios? Forget it. Out him, or else it's not a level playing field. His supporters can buy him a laptop, and I'm sure they support using litigation to get what they want - let them pay for his lawyers.

Yes, I'd like to see the lawyers far from bloggers. But the way to do that is to be responsible citizens in posting. So IMO everybody ought to be "bullying" Atrios, not the man who's going to turn up on "Donald Luskin stalker" Google queries for the rest of his life.

"His supporters can buy him a laptop, and I'm sure they support using litigation to get what they want"

Unlike such anti-frivolous lawsuit conservatves as Bill O'Reilly and Donald Luskin, right? They would never ever use litigation to get what they want. Really, aren't any of you conservatives experiencing any cognitive dissonance arguing for the mother of all frivolous lawsuits?

As for Krugman, allow me to quote someone far upthread: "As many commentators have pointed out, "stalking" has many meanings besides the definitions contained in any criminal statutes. Atrios never said "Luskin has committed the crime of stalking."

Krugman has never said that, either. He said 'Luskin is stalking me', but he probably just meant that Luskin is paying a disturbing amount of attention to him. Which he is.

Why isn't Luskin suing Krugman, anyways? Why is he picking on a blogger with the fraction of the audience (or money?) If he did sue Krugman, Krugman could point to a Luskin column that recommends throwing pies at Krugman at book signings. Luskin is therefore counselling his readers to physically assault Krugman. If anything, Krugman should be suing him.


Why isn't Luskin suing Krugman, anyways? Why is he picking on a blogger with the fraction of the audience (or money?) If he did sue Krugman, Krugman could point to a Luskin column that recommends throwing pies at Krugman at book signings. Luskin is therefore counselling his readers to physically assault Krugman. If anything, Krugman should be suing him.

I agree. In addition, he has made numerous false accusation of Krugman, some of which are listed in articles at the URL attached to this message ( http://home.netcom.com/~rdavis2/luskin.html ).

I agree that the "stalker" term should be taken figuratively as Atrios himself used it. Let's face it -- when you write things like, "I have looked evil in the face. I've been in the same room with it. I don't know how else to describe my feelings now except to say that I feel unclean, and I'm having to fight being afraid," after having met the object of your criticism, you sort of have to expect that kind of talk.

It's certainly fair to use the term figuratively to describe the level of obsession that Luskin does have for Krugman. Let's be honest here. Don Luskin watches every public move Krugman makes, and works feverishly to find an angle to attack him from at every opportunity. That may not meet the definition of the crime of stalking, but I'm not sure what else you'd call it.

Some of Atrios' commenters meant the term seriously and literally, but I haven't seen any evidence that Atrios himself did.

Please. A pseudonymous blogger posts a forgettable seven word blog entry months ago and Luskin hires a white shoe law firm to go after him? What a pathetic thin-skinned jerk. "Embarassing" is about right. Atrios seems to have a lot of lawyers and journalists who post over there and would be only too willing to jump in and help. He'll raise any funds he needs. (Hell, he broke his laptop and someone bought him a new one in a matter of minutes). He can only come out of this smelling of roses.
But I'm concerned about this outing his identity thing. He's made clear he very much wants to separate blog-life from real life and as a very high profile blogger, who despite his moderate Dem politics attracts a lot of vitriol, he probably doesn't need the hassle being identifiable would cause him professionally or personally. And gawd knows Luskin is obsessive enought to follow through with that. (I mean, people have phoned and hassled some of his commenters homes and offices based on their using real names or email addresses in comments).
And I'm not a blogger but can anyone reasonably expect you guys to fact check comments? (Especially the quantity Atrios gets).
At any rate, I think Tom Tomorrow's post is about right: "I believe what we are witnessing here is Luskin's meltdown, the moment at which he becomes a laughingstock even to those inclined to agree with him. It's the sound of one man's credibility flushing down a toilet. He has, in short, just made a motorcycle jump over a shark tank."
We can only hope.

Sym, what the LGF and Rottweiler people do, theoretically, is besides the point. I haven't seen any comments like those you describe nor have you provided any evidence of them, but I would have a problem with them if there was no apparent denunciation of them, and I don't necessarily believe anyone should be sued for it. Doesn't change the fact that Atrios apparently encouraged these comments.

If Luskin thinks that one of Atrios' commentators
actually stated libel, why is he not sueing the commentator instead of Atrios. If someone wrote a Letter to the Editor at the New York Times which
was libel, would the injured party not sue the author of the letter, instead of the New York Times?

Luskin comes across as more than a little deranged. An objective observer - say Spinsanity - would surely judge his pursuit of Krugman; whatever the merits or demerits of Krugman's own arguments. I think the space Luskin has been given is the result of a "my enemy's enemy must be my friend" logic - not a reflection of his talent or the power of his arguments.

Doesn't change the fact that Atrios apparently encouraged these comments.

Proof please.

I can't believe the number of webloggers lining up behind Luskin on this. Atrios is guilty of nothing other than the strong figurative use of language to criticize a public figure. If that's a crime, he'll be in the cell next to Luskin himself.

It's obscene for a person who makes a living writing strongly voiced political commentary to use legal threats to attempt to silence a critic. Would anyone countenance Paul Krugman using the same tactic to silence Luskin?

If I'm the editor of National Review, I'd be ashamed to be professionally associated with Luskin after this point. It's definitely a jump-the-shark moment for his credibility, especially when you consider that he's not sharing his attempt to silence Atrios with the readers of his weblog.

It's pretty silly, but a tempest in a teapot, basically. Atrios behaved badly, and Luskin apparently overreacted, in other than a figurative sense.

I think the substance of most of his commentary is pretty, well, substantive, but like a lot of folks he does have a tendency to go way over-the-top in characterizing people with whom he disagrees. He's no Krugman in that, but there's some of the same flavor to it.

Sounds to me like, in a weak moment, he had his lawyer send out a typical lawyer's letter, something that, if it happened, I trust he'll be embarrassed about.

You don't have to look very far to see example of defaming statements of public figures on any blog, right or left. In my view, the most right-leaning blogs tend to also have the most over the top commenters (the Howard Dean is a metrosexual thread on LGF is an example with clearly defaming comments which LGF doesn't attempt to tone down). But so what? If Howard Dean filed suit against LGF for trying to label him a homosexual, it would be just as despicable as Luskin's suit. But I hope that poster Robert Crawford is drafting a letter to LGF right now.

"That may not meet the definition of the crime of stalking, but I'm not sure what else you'd call it."

Er, "Watching?" Like, say, "Sullywatch" and those other watch-blogs? That's essentially what Luskin has here. If we're gonna call it "stalking," then Franken "stalks" O'Reilly, David Corn "stalks" Bush, etc. To call it "stalking" is just as damaging to the discourse as running around calling people Fascists.

Also as posted above, I saw no condemnation from Atrios of these comments, the comments were based on his "stalking" post. If he condemns the comments, just say he does. Then he'd really get a lot of people on his side in this.

"If Howard Dean filed suit against LGF for trying to label him a homosexual, it would be just as despicable as Luskin's suit."

Er, no, it would be more so because Dean would be seen embarrassed for being called gay. Not a good idea if you're running as a Dem in a major campaign or not. Clearly mot the same as being called a stalker or psycho.

"It's obscene for a person who makes a living writing strongly voiced political commentary to use legal threats to attempt to silence a critic. Would anyone countenance Paul Krugman using the same tactic to silence Luskin?"

You mean like accusing Luskin of stalking him?

I have no idea if Luskin has a case or is just trying to intimidate Atrios, but I DO think that libel law is an important part of protecting free speech. I know a few people just decided that I'm insane, but hear me out: Accusing someone of criminal acts is a way to discredit them and push them out of public debate. We punish libel in order to keep people from using that tactic.

Look at the Petswarehouse case: a lawyer began helping the defendants in a case clearly intended to silence speech. So, the plaintiff claimed that the lawyer was under investigation by the bar. The intent was to discredit the opinions and assisstance of the lawyer, and to force him away from the case. Instead, the lawyer sued the guy for libel and has gotten a judgement for $50,000. Now the original suit is likely to fall apart, because of the libel case.

Yeah, maybe Luskin's going too far by pursuing Atrios. But a threatening letter isn't a summons, and as ugly as a cease-and-desist letter can be, it's not yet a court case.

"Er, no, it would be more so because Dean would be seen embarrassed for being called gay. Not a good idea if you're running as a Dem in a major campaign or not. Clearly mot the same as being called a stalker or psycho."

So you're saying that Luskin suing Atrios is a good idea?

And re:Dean, I'm sure if he fought it, Sean Hannity would just say that that's all the more evidence against him. But whatever. Luskin clearly can call various liberal public figures all sorts of nasty names, as do many others in the right wing media machine, but he can't take it. Atrios, his commentators, and probably even Krugman did nothing more than what Coulter, O'Reilly, and other right-wing pundits have been doing. Either it's wrong for both, or acceptable for both, but don't try splitting hairs to claim that it's somehow different when Coulter slanders left-wingers.

"So you're saying that Luskin suing Atrios is a good idea?"

Please read all the comments before you reply next time.

Indeed Robert, it is undeniable that Krugman's dismissing Luskin as a "stalker" on H&C was an attempt to shut down the debate and worm his way out of responding to any of his criticisms. Same with calling people who disagree with him "liars," etc.

I did read all the comments, and I just re-scrolled through them. Maybe I missed it, or maybe you posted it under a different name, but I can't find a post where you (HH) say anything close to "Luskin suing Atrios is a bad idea." Or even, "Luskin is being a dumbass by doing this." Other posters on this thread clearly do, but I think I'm justified asking you that question since you haven't stated your position.

Here's the problem with libel law. It's too complicated. The average citizen, and even the average lawyer, doesn't understand it. When someone threatens a defamation suit the immediate chant is "First Amendment! Freedom of speech!", ignoring the reality that the First Amendment protects citizens from government censorship. It doesn't give a citizen a license to defame another citizen. The fact is that even though it is very difficult to hold someone liable for defaming a public, or limited public, figure, certain categories of libel claims are easy to prove. Someone has already posted the categories of libel per se, which include false accusations of committing a felony (the law has moved away from the more limiting definition of a "crime involving moral turpitude"). When someone publishes a statement that is libelous per se, the plaintiff does not have to prove damages or malice. The bar is lowered. As for Luskin's lawyer's letter to Atrios, it doesn't say Atrios libeled Luskin. It says the comments posted by his readers libeled Luskin. So, what is Atrios' responsibility for his readers' comments? That's even murkier for the average person, or lawyer, to understand. While the Communications Decency Act protects ISPs and chat room hosts from liability for content posted by others, it doesn't address website publishers (or bloggers). The courts have looked to the degree of control, moderating or editing exercised by the host, but there isn't a bright line test. The simpler analysis is to look at the terms of service of the host, such as Blogspot, Haloscan and LiveRack. They prohibit threats, obscenity, infringement of intellectual property rights, etc. Analyzing Atrios' responsibility from a breach of contract perspective is much simpler. Whatever liability he may face for allowing his readers to post threats or libelous comments aside, he promised his service provider that he wouldn't let it happen. For that reason he should delete any obscene, libelous or threatening posts. Would that be an affront to freedom of speech or the First Amendment? No, because it's not the government dictating what can and can't be said. It's the contract Atrios agreed to, and no one made him do it.

HH, go read the Rottweiler (Atrios links to him). Much to my surprise, he makes an argument identical to mine, and says that he does not want to have to police his comments board for every defamatory thing a commenter might say. He also notes a case when some madman tried to hold LGF liable for its comments. He hates Atrios (says he suffers from a mental disease; Atrios' should get Luskin's lawyers) but he delinked Luskin.

Besides, I'd place a bet that I could go on one of those boards and write "Abu Mazen/ Kofi Annan/ Chirac should be killed right now", and noone would censor me. I'm willing to test this if you'd like.
Good on you for falling into the 'suing is a dumb idea' camp, though.

The Chilling Effects website is not the only definition for libel. Here is one I found:

"What is Libel?

Libel and slander are legal claims for false statements of fact about a person that are printed, broadcast, spoken or otherwise communicated to others. Libel generally refers to statements or visual depictions in written or other permanent form, while slander refers to oral statements and gestures. The term defamation is often used to encompass both libel and slander.

In order for the person about whom a statement is made to recover for libel, the false statement must be defamatory, meaning that it actually harms the reputation of the other person, as opposed to being merely insulting or offensive.

The statement(s) alleged to be defamatory must have been published to at least one other person (other than the subject of the statement) and must be "of and concerning" the plaintiff. That is, those hearing or reading the statement must identify it specifically with the plaintiff.

The statement(s) alleged to be defamatory must also be a false statement of fact. Since name-calling, hyperbole, or exaggerated and heated words cannot be proven true or false, they cannot be the subject of a libel or slander claim.

The defamatory statement must also have been made with fault. The extent of the fault depends primarily on the status of the plaintiff. Public figures, such as government officials, celebrities, well-known individuals, and people involved in specific public controversies, are required to prove actual malice, a legal term which means the defendant knew his statement was false or recklessly disregarded the truth or falsity of his statement. In general, in most jurisdictions private individuals must show only that the defendant was negligent, that he failed to act with due care in the situation.

A defamation claim will likely fail if any of these elements are not met."

According to this definition Atrios' comments come no where near libel.

Calling Luskin a stalker is a valid description of his tactics. I donít see anywhere where the specific legal term is applied. Since stalk/stalking/etc. is a common word beyond any legal meaning and Luskinís actions do meet the common definition he has no leg to stand on. Additionally, except in titles, capitalizing the first letter of a word is indicative of a specific meaning. The term Libel and libel are not exactly the same.

Luskin got his panties in a wad and is looking to take it out on Atrios. (Was that a Libelous statement? Didnít I just accuse him of wearing panties? Has his reputation been harmed? If so I wanna be sued too!)

"I don't necessarily believe anyone should be sued for it." - Me

I disagree, though. Your blog, you need to police it if things get out of hand. Again, I'm not talking about legal action but you are responsible to some extent.

Mr. Upton should acquaint himself with Rule 11.

He should also remember to not put threats into letters. Always say "we will be forced to strongly consider legal action" instead of "we will take legal action." What happens after 72 hours, chump?

Luskin is a deranged ass who has conducted himself as a dictionary stalker, though not a legal one. He described his own behavior when saying "We stalked; he balked."

Loser, loser, loser.

Well, well, well. I don't think Luskin has a case here, but I can't feel too bad for Atrios as he's extremely obnoxious. But I don't think he was accusing this guy of being a real stalker, just speaking figuratively. He should have a right to do that, and sound stupid.

Now as far as the commenters in his blog, they're the worst of the worst on the net, and his readers are a bit too fanatical for my tastes. The Turner Diaries post is an example of this. A rabid person trying to connect dots that only exists in his imagination.

Anyways, Luskin is looking like a bigger idiot as well.

No symphatetic characters here.

Why isn't Luskin suing Krugman, anyways?

Just guessing out loud here, but I assume he is. My guess is that Atrios is collateral damage - Luskin was advised by counsel that he would have a stronger case against Krugman if he could show that Krugman's defamation had been picked up by others, and that Luskin had taken steps to respond.

Did I mention that it is just a guess? If a lawyer has thoughts on how a libel suit might be agressively pursued, I imagine we would all be interested.

However annoying or enlightening you may find Atrios, there is little to suggest that he has been a particular target of Luskin's ire.

Some confusion--maybe someone here can clear up--I've yet to read a single post from Luskin on Krugman that had even a grain of truth to it, or wasn't just a "rearranging deck chairs on the Titanic" kind of thing. I mean, I get disagreeing with Krugman as a matter of polemics, or indeed of policy perscriptions, and I'm sure most people on this board do. Good for you. But as a matter of economic theory, or indeed of recitation of facts (separate from interpretation of same, which goes back to my previous point), Luskin is currently batting exactly 0. So why would anyone give a shit about what he has to say? he has proven himself infinitely inferior to Krugman as an economic theorist, and he hasn't managed to nab Krugman lying about simple fact in 3 plus years. worst of all (and shame on any of you here who do the same) he doesn't understand the difference between laying out facts and interpreting them. Krugman, last we checked, is on the Op-Ed page, and is thus expected to do the former and more than expected to do the latter. Does this really confuse anyone here?

Sym:
others, did Krugman ever clearly announce that Luskin was literally stalking him? He never took legal action, or said 'Luskin is literally stalking me.' For all we know, he was using it in the same metaphorical sense that Glenn Reynolds did.

Yes, Krugman accused Luskin of stalking him literally, not metaphorically. "That's a guy, that's a guy who actually stalks me on the web, and once stalked me personally." This is pretty clear, he accused Luskin of committing the crime of stalking, and I think Luskin has a very good case against him. Atrios is a different matter.

Don Williams asks:
If someone wrote a Letter to the Editor at the New York Times which was libel, would the injured party not sue the author of the letter, instead of the New York Times?
Actually, no, the law is crystal clear on this, the Times would be liable, and since the Times has deeper pockets than a letter writer, and is easier to find, too, the injured party would definitely sue the Times. They might also sue the letter writer, after forcing the Times to cough up that person's contact information.
The law on blogs like Atrios is less clear, but if you read the lawyers' letter, they rely on the fact that Atrios himself participated in the conversation, and therefore knew what was being written, and had an obligation to remove the offending comments. I don't think the case is particularly good, but it's not completely frivolous either. At least not on those grounds.

Luskin: what a f-in botsie!

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