I just took down a post, something I have only done four times previously. This decision, unlike the others, was the resolution of a genuine ethics conflict, created in part by the recent discussions here.
Tonight I received a terse demand, phrased as a request but with a time deadline,* from a former commentary subject insisting that I remove a critical post here from nearly a year ago. The post was not factually incorrect, nor did it make any factual assertions that could support a credible defamation claim. My commentary was pure opinion, though a fairly harsh one. I have pledged, following the inspirational example of Ken at Popehat and also attorney/blogger Marc Randazza, not to countenance web censorship involving bogus legal threats, and thus drafted and came within a finger-stroke of sending a rejection of the demand, and a strongly worded one.
Then I re-read the post at issue. It was a criticism of a tweet from a professional that I believed, and believe, had the effect of unfairly impugning an entire workplace and the identifiable colleagues of the tweeter. The tweet was wrong, but I realized that I was also wrong to highlight it here. I have been writing quite a lot lately about the inherent Golden Rule violation of web-shaming individuals for single and isolated unethical acts that fall short of illegality or such outrageous callousness or cruelty that there is a duty to warn others. I think there is a toxic cultural trend, fed by the power of the internet, that will soon make web bullies and assassins of us all, and potential victims as well. I want to fight that trend, not contribute to it. I think, in the case of that post, I was on the side that I now believe is the wrong one. It was a stupid and thoughtless tweet. It did not justify a web-shaming on Ethics Alarms.
My conflict was that in taking the post down, I was also acceding to what I believe is an unethical practice, using threats to force bloggers to censor legitimate commentary. Way back in the days of the Ethics Scoreboard, I was once threatened with legal action over a completely factual post exposing the unethical practices of a viatical settlement firm. The post contained little but the company’s own marketing material, but I was subjected to a full take-down demand by the company’s general counsel. At the time I had neither the resources nor the time to make a stand against a deep pockets and demonstrably ruthless company, and the Scoreboard was being read by about 12 people a day: I caved. (I also filed an ethics complaint against the lawyer, who was engaging in extortion on behalf of her employer—an ethics violation, though one few bar associations bother to enforce.) I vowed then not to cave again….though I have, once.
How do I make it clear to the demanding subject that I am taking down the post not because of the threat, but because I decided, in spite of the threat, that it was the right thing to do? I again read my response to the subject making that case, and I have to admit, it still sounds like a face-saving, “You can’t fire me, I quit!” effort. I’m sure that’s what the recipient will think it is, and thus my taking down of the post involved will be seen as a capitulation, and may even encourage more misuses of litigation threats against other bloggers. That thought almost caused me to come within a finger-stroke of not sending the second response, and returning to the earlier defiant one.
But it is unethical to neglect to do something you know is right just because the wrong people will get satisfaction from it, or misconstrue your motives. Standing on principle, in this case the principle of unfettered opinion blogging, is not virtuous if it requires one to perpetuate a wrongful act, and as in this case, violate another ethical principle.
The post is gone.
Ethics Alarms 
By making this post, of course.
There’s another issue – as long as you know you’re trying to do the right thing, while it may be convenient if others know it too, what do their opinions matter?
Also, posting the letter the lawyer sent you would be nice.
I do so love to watch a lawyer be a douchbag…
Seconded. You remove the post because YOU think it’s presence is unethical, and you post the bumptious legal threat because it was an unethical and illegal bumptious legal threat.
Thirded? Even if you redact identifying information – I’d like to see the tone of the letter.
Jack doesn’t redact identifying information when he’s posting about other unethical lawyers and threats, so why this one?
I think that redaction also defeats much of the point.
I’ll be happy to post the e-mail. It is an unusually oblique threat, mentioning s it does no legal action, but the threat is clear.
Well, wait a minute. Maybe I won’t. This is fruit of the poisonous tree stuff. I shouldn’t have posted about her, and she shouldn’t have felt the need to try to bully me to take it down. Is it fair now to make her name public in connection with conduct that but for my error, would have never occurred?
Thuggish behavior by lawyers must be called out and spotlighted. I am sure that most will be able to see them threat implicit in the letter…
As for it being “fruit of the poisonous tree stuff” (which is totally going to be the name of my punk-ska-folk music fusion band in law school), the lesson is simple – Don’t act like a fucking censorious twatwaffle if you don’t want people to see you being a censorious twatwaffle.
It does not matter that the original post should have been taken down due to it’s “shaming” nature (and we’ll have to agree to disagree as to whether that is bad), what matters is the behavior of the lawyer.
If you don’t teach these asshats about the Streisand Effect, how can you ever expect them to learn?
1. The primary twatwaffles are the clients, not the lawyers.
2. The letter I received was not from the lawyer, and may well have been a bluff.
3. You want me to webshame someone whose conduct was in response to webshaming that I decided was unjust, and removed.
4. Fruit of the poisonous tree.
5. It would be a good band name.
The legal threats deserve shaming no matter if they resulted from a legitimate gripe. That’s not at all fruit of the poisonous tree.
The FOTPT concept doesn’t care whether the “fruit” independently would warrant adverse consequences. It usually does. The fact that without X, where X was unjust, you would not have access to Y, is the theory, which is tough, but logical. And it applies here without question. That, combined with the fact that the letter itself makes only an implied threat, not an actual one, and only suggests legal coercion because I can’t imagine what else would be coming after the supposed 10 working day “deadline” expires, makes going any further with this wrong. In addition, it’s irrelevant to the post, which was aimed at my conflict, not her conduct now.
This isn’t “I was doing bad X and found out about bad Y.” It’s “I did bad X, and then they did bad Y in response.” It’s not FOTPT. The applicable rule is “two wrongs don’t make a right.”
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This post is about your ethical quandary, but it brought up the threat itself.
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Only an implied threat? Implied threats ARE threats.
Christ, TGT, do you have skew everything people say to make out like your point has any validity?
But although the clients may be the primary vulgar pastries, the law firm is willing to make money by enabling people’s censorious whims. The clients may be jerks for having those whims but the lawyers should be the ones telling them it’s unacceptable to base legal threats on them- redact the clients, if your conscience nags, but the lawyers deserve to have their willingness to act thuggishly known.
This is why I suggested “redacted”. You obviously feel she shouldn’t be named here – but I think it could be instructive to see the letter. A redaction in this scenario makes sense. It’s not an “original issue”. It has history whereby the decision has been made to allow for anonymity. That’s why.
A redaction may defeat the point of “web-shaming”. However, if the point is to read the letter and know more about the threat, then the point still stands. It’s all about your view and your goal.
There’s nothing to the letter that I didn’t already describe in the post, Tim. She sent it, not a lawyer. It says, “Please remove my name regarding this post…” It then says I have 10 working days to comply. Is that a threat? Sure. Is it a threat to bring legal action? More likely, it’s a threat to bring a threat, a “do this or you’ll hear from my lawyers.” Is that still an effort to use a bogus legal threat to get me to censor my blog? I take it as such. Could she deny it, based on what she actually wrote? Sure. No lawyer, now specific threat…just a deadline. Then what? Am I supposed to play out the game for 10 days before doing something?
You grit your teeth and do it anyway. If someone issues a demand that you do something you might not mind doing if asked, maybe it’s OK to refuse on principle- but if it’s something you feel is right (rather than just “meh”) then you are obligated to do it, even if it makes someone think you’re weak.
If you’re explicitly a not a consequentialist in ethical matters, why entertain a consequentionalist line of thought? You’re doing it because it’s right, and after being presented with evidence, you’ve decided it’s worth doing. I always thought the benefit of ethics was mostly about facing oneself in the mirror the next day anyway.
I guess, if you wanted to make a point about squeaky wheels not being the only one getting the grease, and you felt some sort of point needed to be made, and a penance of some sort were in line, then perhaps you could try to find an old post that it also may apply to as well; where the person didn’t complain, but now appears to be unworthy of the critiue, or perhaps make such cursory glances routine, with the one you feel dirty about being the first of them.Then it;s just part of a larger self correcting mechanism you occasionally delve into.
Huh? Consequentialism is using unpredictable, after the fact results to determine whether conduct is right or wrong. That would mean that I would judge my act ethical if no one used it as a precedent for caving when threatened with legal action, and and unethicak if it was so used. It is not consequentialism to try to assess what the consequences of an act will be, and take those likely consequences into consideration in a utilitarian balancing analysis when determining the best and most ethical course. You are advocating an entirely self-centered ethics system, where only the abstract matters, and reality does not. That’s garbage, and certainly not consistent with my positions here.
My bad. I misinterpreted. .
“How do I make it clear to the demanding subject that I am taking down the post not because of the threat, but because I decided, in spite of the threat, that it was the right thing to do?”
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You lay out the details as you have here.
If the offending party chooses to believe otherwise, that is their problem/weakness.
Walking around puffed up with yourself because you beat an opponent that actually quit is only an illusion of strength/power.
You know, a lot of this web stuff is virgin territory.
You have to make it up as you go. 🙂
Regarding redaction: Are you and/or the lawyer in question aware of the Internet Wayback Machine? Google it. Chances are your post is already enshrined for digital eternity, and you can’t erase it even if you want to.
As an example, my site has been crawled and archived 450 times since 1998.
Here’s what it says about yours:
http://www.ethicsalarms.com has been crawled 81 times going all the way back to November 5, 2009.
Permanent archiving has an interesting impact on the demand for retractions; I’d be interested in your thoughts on it.
It’s a little like so-called “public documents” that the public would still have to search for and know what it was looking for to find. For all intents and purposes, based on what such letters want, a retraction has the desired effect. About two years ago I agreed to take down another post under threats of a law suit, and even though the suit was without merit, (The post was about another suit I thought was without merit), it just wasn’t worth the time and money to stand on principle. The post itself had been read by about 30 people; it was a relatively minor issue, and sometimes you have to use triage.