When “Support” is Really a “Tantrum”

Facts are sexist!!!

Ann Bartow posted a piece over at Feminist Law Professors that started out seeming to be a rather nice bit supporting Prof. Mark Lemley, one of the attorneys representing Brittan Heller and Heide Iravani in the AutoAdmit suit, — and a defendant in Anthony Ciolli’s countersuit — a case that the Eastern District of Pennsylvania has allowed to go forward — in part.

Bartow writes:

Mark Lemley got involved with this case, in my opinion, because he is a progressive, good-hearted, moral and generous person. (source)

I can’t be sure why Lemley got involved in that case. I directly asked him that question, and he didn’t answer me. Nevertheless, I believe that Prof. Bartow’s assessment of him is accurate. He does seem like a genuinely good-hearted, generous, and moral person, and I have never heard a single person say otherwise. His involvement in the case did puzzle me, which is why I asked him about it. While his silence was disappointing, I can understand that for liability reasons, it was better that he not reply.

I suspect that he got bamboozled into the case — that he wasn’t told the whole truth until he was already waist deep in the muck, and then it was too late to back out gracefully. Accordingly, I think it is kind of nice that Bartow supported Prof. Lemley. Hell, the man was one of my heroes before I saw the Auto Admit case with his name on it. I still reverently respect him and personally like him, and a part of me hopes that he can disprove the allegations against him. However, if the allegations do stick, like him or not, adults must answer for their actions.

Regardless of Lemley’s motivations, Prof. Bartow’s piece is not at all about supporting Lemley. Behind all of her compliments for him, this post is just Bartow’s latest anti-free-speech diatribe (see commentary on a previous one here), further demonstrating that second-wave feminists have turned the Auto Admit case into their cause-celebre. They just can’t wrap their heads around the fact that sometimes, occasionally, the poor female victim(s) can lie, be spiteful, be unethical, be misled, or just plain wrong. Or, if they can wrap their heads around it, they would rather set themselves on fire than admit it.

Bartow writes:

[I]t seems pretty obvious to me why Anthony Ciolli was named in the original law suit. ISP immunity under Section 230 does not apply to the authors of contested material. Ciolli was clearly posting comments at the AutoAdmit discussion board under at least one pseudonym, “Great Teacher Onizuka.” The plaintiffs had every reason to suspect that he was posting under others as well, and that he could have been personally responsible (and liable) for some of the actionable material. They could not rule him out without conducting discovery in the context of litigation, and they could not do a thorough investigation of the matter unless Ciolli was a named party. Once the plaintiffs knew either that Ciolli was not a bad actor or that they would be unable to prove that he was a bad actor, they dismissed him. Any competent lawyer would have done the same thing. This is Civil Procedure 101. (emphasis added)

Ciolli was “clearly” posting under a pseudonym. Was he? Was it clear? Was it about the girls? Was it negative? Then why include this?

Lets teach Prof. Bartow a little bit about Civil Procedure. Or, better yet, lets teach everyone else about it, because I can’t see Bartow getting off her shrill perch — but I’d rather not let people in the blawgosphere be misled.

Even if Ciolli were not a defendant, the plaintiffs would have had every right to subpoena and depose any person who may have possessed relevant information. In fact, after Ciolli was dropped from the case, Heller and Iravani’s lawyers did, indeed, take his deposition to make sure that they did not leave any stones unturned. Any competent law professor would know that this was not only possible, but proper. Any competent blogger would have at least read Ciolli’s complaint to find that fact. But, lets not let a pesky thing like the facts get in the way of a Dworkin wanna-be’s tirade.

If the reason Heller & Iravani sued Ciolli was because he “might have” posted under multiple personas, then why did they not name each and every moniker on Auto Admit? Everyone on Auto Admit could have had multiple monikers. In fact, law professor Brian Leiter is rumored to have posted on Auto Admit under the name “Tokyo Rose.” I posted on AutoAdmit under my real name. Why not name me? By Bartow’s post-hoc rationalization, Leiter and I both could have been one of the defendants until we were ruled out in discovery, no? Furthermore, if there was ever a suspicion that Ciolli used another moniker, then why wasn’t that allegation ever made, on information and belief, in the complaint?

I’ll tell you why not, because the Plaintiffs’ own published statements contradict Bartow’s made up “facts.” The “theory” that Mr. Ciolli was another pseudonymous poster never arose until Heller & Iravani’s lawyers started grasping for a way out of possible sanctions, and their cheerleaders started to see their lovely pre-packaged daydream unravel.

A competent attorney does not file suit against each and every person who could hypothetically be a defendant. (As in if the facts and the law were stretched like a goatse about to snap). If that were the case, then every lawsuit would name hundreds of defendants, including people who did nothing wrong, and let discovery sort out who was actually liable. Meanwhile hundreds of additional defendants would need to report that they were defendants in civil actions and live under the cloud of litigation while plaintiffs took their own sweet time figuring out if they had sued the right person. No, it doesn’t work that way and Professor Bartow should know that.

Bartow then throws out her own “theory.”

My theory on why Ciolli is suing Lemley and the plaintiffs? To scare away other potential plaintiffs, and to discourage other lawyers from representing them.

To scare other potential plaintiffs who might bring a lawsuit against him? I should hope so, since pages 23-29 of this decision make it pretty clear that Ciolli has brought a proper claim for wrongful initiation of civil proceedings against Iravani and her attorneys. Ethics and judgment are supposed to discourage lawyers from bringing baseless claims. It is a shame when someone must file suit in order to “scare” potential plaintiffs from abusing the courts and filing frivolous claims for an improper purpose.

The AutoAdmit case has been shown to be more of a shakedown, legal extortion, than a suit calculated to vindicate any real legal interests. While some might point out that over-inclusiveness and scattershot complaints are more common than I might like, the fact is that Bartow’s post is less about backing a nice guy – and more of a way of backpedaling and acting as an apologist for misuse of the legal system. Ethics matter, and the reason that so many lawyers miss that lesson is professors like this seem to disagree.

Ciolli had some pretty damning evidence to present in his case. Unfortunately for him, the E.D. Pa. ruled that it was excluded by FRE 408. Lets sit back and see if Ciolli’s lawyer in that case can find an alternate way of getting the information before the court. If he can, I’d imagine that Ciolli will prevail — which will probably give Bartow an excuse to blame it on the “patriarchy,” because in Bartow-world, the only women who are ever wrong or ill-motivated are those who disagree with her.