April 11, 2007

Suing a Blogger

Big, powerful law firms like Nashville's King & Ballow really ought to hire someone with journalistic and new media experience to advise them on how to handle clients who complain about things published by bloggers. Then they wouldn't do stupid things like issue threats of libel suits that they can't win against bloggers who, it turns out, have lots of friends willing to make the law firm and its client look bad for it..

That thought occurred to me as I read that Nashville blogger Katherine Coble is being threatened by the powerful Nashville law firm King & Ballow with a libel lawsuit unless she removes from her blog something she wrote that offended one of the law firm's clients. King & Ballow sent Coble a "demand letter" demanding she take down a post she published. K&B and the client - the headhunter firm JL Kirk Associates - are already getting blowback - and it's only going to get worse as word of the case spreads throughout the blogosphere.

Someone at King & Ballow and someone at JL Kirk Associates should, right this minute, go Google "Warren Kremer Paino Advertising" and "Lance Dutson" and see how WKPA's frivolous and baseless libel/defamation lawsuit against a blogger worked out. (Short version: They soon dropped it, but not before coverage by a zillion blogs and news media coverage made them look like blithering idiots bent on squelching free speech.)

NashvilleIsTalking.com has a great chronological recap of the story so far, including a link to the original post.

If I were advising King & Ballow and JL Kirk Associates at this point, charging them only slightly less per hour than King & Ballow charged JL Kirk Associates to have a paralegal or lawyer hack together that demand letter, I'd tell King & Ballow and JL Kirk Associates that now that they have threatened to sue Coble, the entire contents of the original post and all subsequent posts have become items of news interest.

That's not good news for King & Ballow or JL Kirk Associates because it means that I and the rest of the world's 71 million bloggers are perfectly free to republish them in their entirety in the course of reporting on this story. I could, for example, make a copy of Coble's web page and upload it like this. Or I could make a PDF file of Coble's web page and upload it like this. See? Those are objects of news coverage and I have a complete right to republish them as illustrations of my story. In fact, republishing them whole is crucial to properly covering this story as only by reading the whole post can one see what Coble wrote in context and judge for themselves whether JL Kirk Associates has been wronged or if King & Ballow is blowing some king-sized smoke.

It would only takes one journalist blogger - like, me, for example - to republish Coble's blog post. (Check!) And it would only take one journalist blogger who has connections to organizations like the Media Bloggers Association and often is linked by big blogs like Instapundit - someone like, me, for example - to turn this story this huge deal in the blogosphere. (Didn't have to - someone else did!) And it would only take a few dozen other bloggers linking to it to push it up into the top 10 results when someone searches Google for "King & Ballow" or "JL Kirk Associates." (Happening!)

That's why, by threatening to sue Coble, King & Ballow and JL Kirk Associates have made it MORE likely that the comments that King & Ballow and JL Kirk & Associates don't like will be read by lots more people than it otherwise would have, and will be republished countless times on the Internet in more places than JL Kirk Associates can possibly afford to pay King & Ballow to threaten to sue.

To summarize, K&B is asserting on behalf of its client that some of the info in Coble's original post are false and defamatory. The demand letter also says some of the comments that Coble's readers' posted on her blog are false and defamatory - though recent case law appears to protect bloggers from legal liability for words written by their readers. (You'd think the fine lawyers at K&B would know that.)

Coble is on safe legal ground if the things she wrote are either true or are expressed as opinion, and it is clear from her post that she is describing her perspective, feelings and emotions - that is, her opinion of the event. Coble even began her post by stating that it is a write-up of "our experiences" with JL Kirk Associates, another way of saying that what follows is her perceptions and her opinions of what took place.

As for whether King & Ballow actually will sue Coble, I have my doubts. Law firms often send threatening letters hoping to get results without going to court, and this may be what they're trying to accomplish here. Law firms make money by representing clients - demand letters involve billable hours - and law firms make money by suing targets with deep pockets. The Cobles aren't deep pockets - there's simply no money for King & Ballow or JL Kirk Associates in suing Katherine Coble - and there are only high legal fees and more bad publicity for JL Kirk Associates. A quick Google search of "JL Kirk Associates" shows they don't need that.

There's also a lot of downside risk for JL Kirk Associates. One of their complaints, according to the King & Ballow demand letter, is that Coble implied that the fee they asked the Cobles to pay was based on the amount of the Coble's tax refund. (Coble wrote that the amount they were asked to pay "neatly" coincided with their tax refund, "which is a matter of public record.")

If King & Ballow proceeds with a lawsuit, the rules of discovery mean that Coble's defense team would immediately be able to demand and get access to all JL Kirk Associates documents internal regarding how they determine what fees to charge customers. I doubt JL Kirk Associates wants that information made public - even if Coble's suspicions are unfounded. (And that information would be made public - the blogosphere would see to it.)

Of the other three complaints in the King & Ballow letter, the first alleges a factual error in Coble's blog post - but my cursory Google search found plenty of evidence that Coble's statement was true or at least that she had reason to believe it was true. The second and third complaints involve statements of opinion made by Coble, and opinion is protected speech.

What Coble needs right now is a blog-savvy lawyer to write a response letter to King & Ballow, and if you are that lawyer I'd encourage you to do so for free or for a very low fee. Do that and you'll be a hero to the blogosphere, and probably get lots of nice mentions in lots of blog posts.

As for JL Kirk Associates, if I was in the job market - and, as it turns out, I am - I wouldn't use them. Not because of what Katherine Coble wrote, nor because of what I found about them via Google, but because they and their law firm decided that threatening to sue a blogger to squelch criticism was a better business tactic than addressing problems that may exist with how they do business.

Update: Bad news for JL Kirk Associates: Instapundit is on the story. He thinks at least part of the demand letter "suggests a lack of familiarity with federal law on the subject."

Update: Newscoma says the blogosphere doesn't like bullies, and she's got links to lots of bloggers weighing in on the story.

Update: As of around 6:45 p.m. today, Technorati found 30 posts mentioning JL Kirk Associates. Google's blogs search tool found 30 as well. Bet on both numbers to rise. (Click the links to see if I'm right!) Updating the Update: As of midnight, the tally is 53 on Technorati 47 on Google Blogs.

Update: Say Uncle wonders if JL Kirk Associates knows what a stupid move they made.

Update: Silfray Hraka says the question now is: "At what point does the owner of JL Kirk & Associates realize his business is now worthless?"

Update:: The answer would be right about now, courtesy of Bob Krumm.

Memo to King & Ballow: Cut your losses now. Advise JL Jirk Associates to drop the lawsuit threat. It's killig whatever was left of their good reputation - and you don't need the collateral damage.

Thursday April 12 Updates
7 a.m.: Technorati 76, Google Blogs 87. Memo to JL Kirk Associates: This thing is exploding across the 'net. By lunchtime more than 100 blogs will be writing about this. Cut your losses now! Call off your attack dog!

Captain's Quarters considers the facts of the case. Memo to King & Ballow and JL Kirk Associates: CQ is a very widely read blog!

Sean Braisted digs up the Better Business Bureau file on JL Kirk Associates in Nashville. It's kinda thick.

9:30 a.m.: .: Technorati 91, Google Blogs 117.

Further updates in a new post here...