All I Wanna' Do is Just Get Sued . . .

On the topic of blogger liability, I've received a number of questions from readers via email and comments. Which is understandable.
When I hit "publish" on my Dr. Phil TMI post, I was more than a little nervous. When it got "stumbled," I almost threw up. I worried I might be fending off lawsuits from the big man left and right, even though I only spoke the truth.
So where to begin? Especially since it's been at least a hundred years since I graduated law school and, being a criminal defense lawyer, my best advice (in Texas) is not to give a breath sample. Hmm.
Well, an abbreviated primer on the "first amendment right to free speech" might be helpful. To begin with, it's almost a misnomer because you do not have an absolute right to free speech.
You can't scream 'FIRE! FIRE!' in a crowded movie theater when there is none, for example, much as you might like to. My disruptive urge usually strikes in church. I often imagine what would happen if I stood up in my chair and screamed, "He's lying! He's lying!" in the middle of a sermon. But I digress.
What else can you not say? Well, you can't call for the violent overthrow of the government. It's considered sedition and the feds will come and get you.
Or other words that incite lawlessness. Like, "let's kill all the abortion doctors. Here are their names and addresses. Call me if you run out of bullets."
So what can you say? Well, different types of speech are more closely regulated than others, and for the most part, this hierarchy makes intuitive sense. Commercial speech, for example, gets and deserves much more scrutiny than most other forms of speech. This advertisement on the right for Chase & Sanborn coffee certainly crosses my line, though it probably passes constitutional muster, unless it makes a false claim.
What children can say in school is a hot topic. Remember "Bong Hits 4 Jesus," waved by a student from the stands of his school's football stadium? Ultimately it was held that this is not constitutionally protected speech and the student lost his court battle.
On a more benign note, what if a blogger like me happens to love Avon's Skin-So-Soft and believes, from my anecdotal experience, that it prevents mosquito bites? Suppose I jump onto my blog to rave about this lotion and it's mosquito-repelling properties. What then?
Well, it all depends. If Avon supplied me a free sample of its lotion and asked for an unbiased review, we wade into murky waters. If Avon paid me to review its lotion, we are in murkier waters still, especially if I do not disclose to my readers that I have a financial relationship with the manufacturer.
And what if I'm flat-out wrong? What if Skin-So-Soft offers no mosquito protection? Well, then I might really run into some trouble. The FTC (Federal Trade Communications) is considering new rules that would make not only advertisers but bloggers liable for "false claims" about a product made on blogs. Even if the blogger's "false claim" is unintentional.
It remains unclear whether getting the product for free would establish a financial relationship between the manufacturer and the blogger and therefore trigger liability under the proposed new FTC rules. So they are worth keeping an eye on.
Your best bet, when reviewing products, is to use that ubiquitous word we are all growing to loathe: transparency. Conspicuously advise your readers that you were given the product for free, or that you are being paid to review it, and by whom. Period. No exceptions.
But what if your review is negative and you bought the product yourself? Could you still get sued? Apparently so. A professor reviewed a book and slammed it, saying things like "the only good thing about this book is its binding." The author sued the professor. A frivolous suit, in my opinion, but who ultimately wins is really beside the point. It's a battle you don't want to fight.
As you can see, there is no safe harbor for avoiding a lawsuit.
Moving on along, suppose you hate your kid's school. The administration has terrorized your child and you suspect certain school officials are making false reports about the number of "special-ed" students they are "treating," in order to defraud medicaid.
This is a much stickier wicket because you are moving into the area of libel.
A mom blogger in Texas was sued by the Galveston Independent School District for posting things the district considered defamatory. And if her assertions -- things like the district employees lied, used their positions for personal gain -- are false, they certainly would be defamatory.
Moral of the story? If you put negative information about your kid's school on your blog, be prepared for a lawsuit. Even if everything you write is true. Because although truth is an absolute defense to a defamation claim, it won't stop you from getting sued.
Suppose you want to blog about your evil employer. You think you've got an "anonymous" blog (which I'd call an oxymoron, were anyone to ask). So off you go, on your anonymous blog, criticizing your employer (and providing enough facts to enable someone to identify the employer). You claim they promote tortoises over hares and engage in otherwise discriminatory activities. Blog at your peril, baby. And I'm not talking just about your job.
Because can they sue you? Yes. Would they lose if you can prove you told the truth? Yes, again. But would you spend thousands of dollars defending your blog post, lose your home, and end up living in your parents' basement? Most likely.
The point is, oftentimes a "win" is only a win in principle. The media will love you for about . . . two hours. They won't be around later to pay your mortgage or your grocery bill. So, as we learned in kindergarten: stop, think, look, and listen.
My mother has asked me legal questions for years. Yet she still asks me, every time I see her, "can I sue them for that?" and "can they sue me for that?" And every time, my answer is the same.
"Mom, anyone can sue anyone for anything at any time. Is there a clerk down there at the courthouse reviewing petitions, throwing out the ones that are ridiculous? NO. NO. NO."
And can you really afford to go manno e' manno with these guys and hire a big gun to prove you told the truth? You've got, what . . . a homeowner's insurance policy that may or may not tender a defense for you? While the school probably carries error and omissions coverage that will pay for a lawyer to beat you about the head for the rest of your life.
Then we have the bloggy gossip situation. Is it a crime to be mean online? While researching this topic, I came across the Lori Drew case -- about the mom who allegedly assisted in creating a fictional "lover boy" account on Facebook to taunt another girl. It's not completely on point, but it's instructive.
After state officials determined there was no state crime with which to charge her, the U.S. government used a federal anti-hacking statute to prosecute Drew -- because there is no federal cyber-bullying statute, either.
But before you cheer, hold on a minute. While I am as outraged and up in arms as you are that a grown-up woman would trick a teenager and possibly drive her to suicide, there's a lot more to this case. It should make each and everyone of us afraid to ever click "I agree" to a "terms of use" contract on a website, again. Because, really, do you ever read them?
The government used Drew's violation of MySpace's terms of use to mash her conduct into a federal crime. The judge is now considering whether to dismiss her federal misdemeanor convictions as I write this, and it looks like he will. But whatever his ruling, it will have important ramifications for us all.
Suppose, for instance, you go to a blog that says, "by submitting a comment, you agree to leave no comment that would hurt someone's feelings" and you leave a comment that does. Are you now subject to federal criminal prosecution? Because arguably, you violated the blog's terms of use.
And what if the questionable comment is left on your own blog? Could the subject of the negative comment sue you for allowing a comment that might violate your blog policy to remain on your site? I don't know. But I'm researching the Drew case and will report back soon.
In the meantime, make sure your facts are correct and if you are expressing an opinion, explicitly state it as such. If you want to write about a bad hamburger, say "in my opinion, McDonald's hamburgers are horrible." Do not state it as fact.
Because in my opinion, opinions are rarely actionable. Erroneous facts, on the other hand, are. Perhaps the best advice, though hardly lawyerly, is this: Never, ever publish a post when you are angry. And if your post makes you feel queasy or hesitant, stop. Pay attention to your gut. Edit it and publish it when that queasy feeling is gone. Or ask a trusted friend to read it first before you send it out into the world forever.
Blogging can be a tricky business. Alrighty then. Time for a break from the seriousness, time out for a Mojito. Just don't blog about your church pastor, after you've had one.
UPDATE: 6/13/09 at 11:07pm from the New York Times (re blogger product reviews) can be found here.

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