Tax Lawyer's Blog

Professor D. Marvin Jones, a University of Miami law professor, has filed a lawsuit seeking damages of $20,000,000 against Above the Law.com  (ATL) for insinuating that he had committed the crime of solicitation of a prostitute and for posting a photo-collage that: 1) portrayed him in a false light; 2) invaded his privacy; 3) and infringed on a copyright based on the unauthorized use of his photograph.

Jones, acting pro se, filed a complaint in federal court in Miami against ATL Founding Editor David Lat, as well as ATL’s parent company and David Minkin, the parent’s co-founder and publisher.

The Facts

Here is a synopsis of the story by Ben Sheffner of Copyrights & Campaigns blog:

Prof. Jones was arrested and charged with solicitation of prostitution, after Miami police said that he offered $20 in exchange for sex to a woman who turned out to be an undercover cop. Of course, the story was irresistible to Above the Law, which delights in highlighting lawyers’ most unlawyerly behavior.

And so the blog ran numerous posts on Jones, dubbing him “The Nutty Professor” and posting the “incident report” on his arrest, on which it commented, “Note the tension between (1) Professor Jones’s pimpin’ ride, a Mercedes SL500, and (2) his alleged offer of a mere $20 to the ‘undercover officer posing as a prostitute.’” It also ran a photo-collage forwarded by a reader, which depicted Jones’ face on a $20 bill and imagined him conversing with prostitutes.

The charges were later dropped, and his record “expunged,” reports the National Law Journal, and Jones remains on the Miami faculty.

Defamation Suits are Risky

Professor Jones must know that defamation suits are a risk. This is true because a defendant’s best defense is that the statements made about the plaintiff are true. In this case that means ATL will do everything in its power to prove that Professor Jones did, in fact, solicit a prostitute. All of this will be played out on a public stage and will result in a thorough exploration of the events leading up to Mr. Jones arrest.

I don’t think Professor Jones wants to go there. I am quite certain he doesn’t want to go there with a fool for a lawyer.

Innocent Until Proven Guilty

Although there is no indication that the police supplied Dr. Jones’ arrest information to ATL and encouraged its publication, many police organizations engage in this repugnant practice.

I remember years ago in Florida the police would provide to the press for publication the names, addresses and mugshots of men they had arrested for solicitation of prostitution. In effect, the state was conspiring with the media to punish suspects before those suspects were convicted of a crime. The reputations of these men, not to mention their marriages, were shattered even in those cases where the charges were dropped.

I believed this to be unconstitutional then as I do now.

An arrested man is innocent until proven guilty, not until a cop says he’s guilty. 

Again, the publishing of an arrested man’s name and mugshot in such a manner so as to give the impression that he is guilty of the crime for which he has been charged is a form of pre-conviction punishment. If the phrase “innocent until proven guilty” is to have any meaning at all, this conduct must be considered unconstitutional. If the state had no hand in the publication of the defamatory information and, therefore, there is no constitutional violation, the media organization publishing it should still be liable in tort.

There is a reason that members of the media bend over backwards to say that a suspect is only an alleged criminal.

The Future of Blogger Defamation Suits

Finally, here’s what Electric City Web Log says about the potential for more defamation suits against bloggers:

[I]n the blogosphere, the victim of defamation might well be a non-famous person who has merely made the defamer really angry. Given the amount of blogging that is going on, we are likely to see a quantum leap in suits for defamation (and certain related torts, such as invasion of privacy).

One wonders whether the Supreme Court will step in to raise the burden on plaintiffs, as it did to protect news outlets reporting on public figures. Among the factors encouraging the Court to do so are (1) the potential “chilling effect” on speech of such lawsuits, especially in view of the fact that most bloggers probably have modest means and no insurance and (2) a certain “assumption of the risk” that bloggers undertake in joining this rough-and-tumble medium. On the other side, though, is the fact that the Supreme Court is more cautious than it was in the 1960s about trying to rewrite state law.

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