Bear with me, if you will. This story requires some background to make sense of it; I promise it gets much more exciting at the end.
“Atrios” is the nom de guerre of a blogger –pretty much the pre-eminent left-of-center blogger in terms of hits and links. His real name is a reasonably well-kept secret, a secret to which I for one am not privy. His reasons for writing under a pseudonym are presumably professional ones: most likely his employer at his day job doesn’t want to be in a position of being caught in the back-splatter every time Atrios goes after someone.
The Luskin-Krugman “stalking” controversy
Recently, Atrios has been going after one Donald Luskin, whose literary skill and integrity are precisely appropriate to his role as a contributing editor of National Review Online. Luskin’s job there is to abuse Paul Krugman. Luskin and his allies have described his activity as “stalking.” Luskin might best be described as a professional character assassin, with the reservation that, as character assassins go, he’s not really up to professional standards: too much enthusiasm, not enough self-discipline.
As the result of a confrontation at a book-signing, Krugman (in an unscripted television appearance) accused Luskin of “stalking” him physically as well as cybernetically, and there’s been a grand bloggic Donnybrook in the subject, featuring among others Brad DeLong and Glenn Reynolds. Atrios has pointed out that Luskin has, on at least one occasion, suggested to his readers that physical violence (albeit only in the form of a pie in the face) be directed at Krugman. No doubt Luskin would say that he was joking, and would disclaim any responsibility — while laughing heartily — were someone to carry out his suggestion. That fact, and Luskin’s clinically pathological self-report of his emotions on meeting Krugman, (And I walked away, with my skin crawling, worried that I’d gotten too close to something infectious) ought to inform any judgment about whether Luskin in fact acted in a way that would have put a reasonable person in Krugman’s position in fear.
Atrios, unlike the undersigned, allows comments, and Atrios’s commenters tend to be a rowdy bunch. One day, Atrios had a post whose full text was as follows:
By Donald Luskin
where the “By Donald Luskin” was a link to Luskin’s own weblog. Some of Atrios’s commenters became … well, let’s just say “enthusiastic” … and made rude remarks about Luskin’s veracity, literary taste, sexuality, and mental health. It is, I suppose, possible that one or another comment actually strayed across the line that divides derision from actual libel : as Luskin himself did, for example, when accusing one of Krugman’s supporters, who had written a number of hostile emails to NRO, of a “denial of service attack,” which names a crime.
For example: some of the claims about Luskin’s sexual relations or desires might well qualify as libellous if meant seriously, and if one of them weren’t prefaced with “I heard.” But I read them as purely figurative. The claims that Luskin is “completely $@$#%$ insane” or “needs an intervention” seem to me at about the same level: mere insults rather than claims of fact. It wasn’t as bad as what Luskin writes (gets paid for writing) about Krugman, but it was certainly rough.
Today Atrios received an email from someone purporting to be a lawyer representing Luskin, demanding that he remove the entire post, along with its comments, some of which (the lawyer doesn’t bother to say which ones) the lawyer asserts are libellous. The letter contains an explicit threat to try to force Blogger.com, Atrios’s service provider, to reveal his identity.
It’s barely possible that this is just a hoax, though the name of the purported lawyer matches that of a real lawyer at a real Boston firm.
Even if the threatened lawsuit is without merit (as it very probably is: Luskin clearly being a public figure, he would have to show that Atrios had acted with “actual malice” in not taking down whatever his commenters might have said that might be false and damaging to Luskin, and moreover show that a comment calling Luskin “certifiably insane,” for example (1) embodied a claim of fact rather than a statement of opinion or a metaphor and (2) that Luskin was not, in fact acting in a way that could lead a reasonable person to form the opinion that Luskin is suffering from a serious Axis I disorder)– even, I say, if the suit is without merit, the threat to expose the real identity lying behind “Atrios” is a grave threat, and to some extent Atrios is at the mercy of Google, which now owns Blogger.com. (Unless, that is, his blogger account is in the name of a discreet friend.)
In addition, of course, Atrios’s site is a non-commercial effort; he doesn’t have a revenue stream out of which to pay the big legal bills associated with defending a libel suit. This lawsuit is a threat to the ability of every one of us to continue to make his views known in this new medium. Luskin’s threat is, as one blogger notes, a classic SLAPP suit. The point is not to win damages, but to drive a critic into the ground and thus deter others.
[SLAPP stands for Strategic Litigation Against Public Participation: a sleazy trick invented by real estate developers who wanted to intimidate community groups organized in lawful opposition to their plans. Such suits now banned by the laws of some states.]
Atrios suggests a mass de-linking from Luskin’s pitiful little “Poor and Stupid” site. (No, I’m not making it up: Luskin thinks that liberalism is “a conspiracy to keep you poor and stupid.” Well, presmably Luskin is well-paid at NRO, so I’d have to say we were only one-for-two in his case.) That would be a good gesture; doing the same with NRO would be a better one. But of course most persons of taste never blogrolled to either of those slimy outlets in the first place.
Taking Luskin, or NRO, off the blogrolls isn’t good enough. (Assuming that, is, that this doesn’t turn out to be a hoax, that Luskin doesn’t sober up in the morning and back down, and that NRO doesn’t fire him.) They have to be utterly sent to Coventry, with no one linking to anything posted there, ever.
That may seem extreme, and it would certainly be hard to maintain, but if Luskin is going to try to drive Atrios out of business, the only adequate response is an attempt to drive Luskin out of business, and if NRO stands behind Luskin, then NRO has to get the same treatment.
And the success of any such attempt depends on the right-bloggers’ willingness to be loyal to Holy Mother Blogistan rather than the VRWC.
Glenn Reynolds, who sided with Luskin in his clash with Krugman, clearly thinks Luskin has gone too far, but doesn’t say what if anything he plans to do about it. If people like Glenn and Eugene Volokh let it be known at NRO that they don’t have any interest in having their essays published by an outlet that tries to suppress blogging, that would sting far more deeply than anything those of us in Blue Blogistan could do.
Except, of course, figuring out a way to help pay the legal bills, if it comes to that.
Update Some time ago, Stuart Levine offered some legal thoughts that may be relevant. [*]
Second update Walter Olson of Overlawyered thinks that Luskin himself might be at risk of a libel suit. The Right Blogosophere seems to be coming home, with everyone from the Emperor Misha to Luskin’s colleagues at NRO telling Luskin he’s out of line.