I previously posted a critical account of the lawsuit filed against former President Jimmy Carter by David Schoen of Montgomery, Alabama and Nitsana Darshan-Leitner of Ramat Gan, Israel. I view the filing as not just meritless but a direct threat to free speech in the misuse of common law and consumer protection laws. This morning, I received an email from David Schoen and I felt (with his approval) he has a right to be heard in full on the issue.
Here is David Schoen’s response:
I read your blog on the Carter case and you make your view of the case quite clear. Naturally, I disagree completely and don’t think it implicates free speech rights at all (or I wouldn’t have brought it); but I have no doubt we would never agree on that. Expecting that some would misunderstand it as putting the right to speak at issue, I went to the extraordinary step in the Complaint of expressly writing in the Introduction that the case was not intended in any way to challenge Carter’s right to say or write anything he likes, true or not on this subject or any other; rather it is a consumer action seeking compensation for those who spent their money in reliance on the further representations that all in the book relfects a completely accurate account of historic events – which Carter’s closest associates and colleagues, Middle East experts who in many case were there for the events depicted, say simply is false. leading them to publicly condemn him and disassociate themselves fully from him and his book. I don’t suggest for a moment that this will or should change your view of the case. I just would have liked to have seen that reflected in your blog – just as I would have liked to have seen the precedent an action of this nature reflected somewhere in your call for sanctions. I would have thought you would consider the same at least relevant to that discussion.
I wonder though, what it is that makes a guy in your position feel the need or believe it to be appropriate to engage in personal attacks toward me. (This one happens to me toward me; but I suppose my question, if rhetorical, goes beyond me). I don’t know exactly what you mean when you refer to my “wage array” of volunteer projects or something like that (and maybe “wage” is simply a typo); but I would think that maybe my background ought to have least given pause to lead you to perhaps contact me to see what motivated me or what the thinking is behind the case before writing such biting personal attacks. I don’t think you would have changed your view of the case; but it seems to me it would have been a decent thing to do before engaging in the personal attacks.
I think I have some sense of the First Amendment and its great value. In cases with First Amendment implications, I have represented folks as diverse as the Imperial Wizard of the KKK in Mississippi in a very difficult and emotionally challenging challenge to a march permit and anti-masking law (I am an Orthodox Jew and this man hates Jews most), to a Jehovah’s Witness sued by a hospital and doctor, on what they believed to be her deathbed, to try to force her to take a blood transfusion (winning the case, notwithstanding my own strongly held personal and religious views), to a Muslim inmate in Alabama locked in solitary confinement for a year and a half simply because he led a group discussion on the propriety of reparations for African-Americans as a result of the enslavement of their ancestors (leading to the appointment of the first Muslim cleric ever in the Alabama prison system), to university students challenging public officials’ public prayer to begin football games (representing the student who was beaten up for his protest and then charged criminally and a group of students suing over the practice, leading to more death threats than in any other case I have handled), and I could go on considerably further. With respect to other civil rights (public interest) cases, in giving me the award you blithely refer to, the American Bar Association wrote and announced that in researching the award, they determined that I have done more through my civil rights litigation to change the face of public institutions in the South, including prisons, jails, voting rights, public schools, child welfare, systems, etc,, than any lawyer of my generation. Two months ago, I successfully represented indigent and homeless sex offenders in Alabama in their constitutional challenge to the State’s Community Notification Act which, in effect, subjected them to a life sentence for their inability to comply. The point here is not to blow my own horn or to try to persuade you that you should feel differently about the Carter case. Rather it struck me that the title of your position, which I would think/hope reflects your life’s interests – holding an endowed Chair in “Public Interest Law” at least might have made you consider, even as nothing other than a courtesy, contacting me first to see if I am deserving of the personal attack, going well beyond the case. Assuming you have a genuine interest in public interest law, as I of course assume you do, after seeing on my website the kinds of public interest matters to which I have devoted my time, it really doesn’t strike you as the decent thing to do to perhaps reach out to me – maybe not before attacking the lawsuit, but before attacking me?
It is all your prerogative, of course, and you have exercised it as you deem appropriate. I find it disappointing, and maybe especially so, since you are a respected professor at my undergraduate alma mater and a person students undoubtedly identify as something of an authority on public interest law and lawyers. I guess we just have very different views on such matters.
David Schoen
I’m weighing in months and months after the main voices were heard on this blog thread (is that what you call it?) because I was involved in a situation that I didn’t want to AFFECT by speaking here to any EFFECT. Let that remain difficult to understand; I will explain THAT in a few months more. But I do want to weigh in now with apologies for tardiness.
Mr. Schoen has probably spent good time and good effort doing lots of good work, much if not most of it pro bono. All that says about him is that his heart is in the right place. Perhaps. But can we presume Jimmy Carter’s heart is not in the right place, even if he takes a position that we find unbelievably wrong-headed? So having one’s heart in the right place is not really the issue when it comes to THIS lawsuit brought by THESE plaintiffs against THIS defendant, an author.
Are there no anti-SLAPP suits in NY? It is pretty obvious (and we didn’t have to wait until May to find or figure it out) that this lawsuit was filed for the purpose of having a splash and of controlling people’s (NOT Carter’s — but other authors’) behaviors. OK, splash splash, the lawyer did as he wanted and as the courts let him do, and OK OK, perhaps some other author somewhere who was hoping to publish a book that told a “truth” that Mr. Schoen (or others like him) would dispute was thereupon told by a prospective publisher: “Hey listen, it’s a great book but our legal dept. said no go.” We would never hear of that, would we? Even if the rejected author got some hot-shot lawyer to sue the unwilling publisher (and not bother to serve it!) probably no courthouse-reporter would pick up the story and the judge would just dismiss after a quickie motion to dismiss for failure to state a claim.
But hey, what does this say about how we conduct ourselves in this free country of ours?
Well, let me tell you about a little unknown chapter in the continuing saga of PEOPLE LIKE SCHOEN VERSUS PEOPLE WHO WANT TO SPEAK ABOUT SOMETHING PEOPLE LIKE SCHOEN DO NOT LIKE:
Schoen, I believe (and I don’t want to mention names because somebody wouldn’t like it) writes letters to people and threatens them if he learns that they are about to publish something he opposes, for whatever reason. I have no evidence of this; I guess I am probably not supposed to know about this. BUT IT WORKS.
See, you sue an ex-President, you advertise yourself as a “First Amendment Chill Specialist,” and you get a certain cache. Then people will approach you to use your newfound (newly created) power to attack whomever THEY want to chill, and you do it when you want, and you get the thrill, and wow, you never have to feel powerless or frightened again. Powermongers — what a pitiful waste of some great brains. But after all, after being academics and fighters for causes for a long time, perhaps some of them just crave the feeling they did not perhaps get when they were behaving in more predictable and acceptable ways.
Although nobody can actually PREVENT someone like Carter (or Smith or Jones or Doe or Roe) from publishing something you oppose, and although your lawsuit against them will come to NOTHING if they manage to find a publisher who will go ahead right in the face of an expensive lawsuit, you still have the power to scare LOTS OF PEOPLE with the specter of litigation. As an experiment, 20 years ago, I asked 100 people WHAT TWO THINGS they feared the most out of a list of 100 unpleasant things. The top two at that time were AIDS (68 out of 100 put it in the top two) and a LAWSUIT (54)!
Because I was subjected to a war-of-attrition litigation in the 80s, 90s, and this last decade too, I became aware of the enormous power the threat of lawsuit has over people. One of my witnesses was sued so many times he accidentally defaulted on one of the storm of complaints and ended up with a $250,000 judgment against him and was put out of business. NO OTHER WITNESS WOULD GET ON THAT STAND, of course, after it happened.
People like Schoen are not about truth — answer me if you like, Mr. Schoen — I have NOTHING and I own NOTHING and I’ll say anything I PLEASE because you can’t take anything from ME — they are about exercising power. Schoen has done NOTHING to Carter and of course he couldn’t and he knew that. But he has prevented someone else out there from saying something that some publisher out there figured might invite flak from Mr. Schoen or the people who model after him.
I am filled with contempt.
By the way, I am a Jew and I support Israel and I voted for Carter.
Horus wrote: “It seems as though he’s all for free speech as long as it is speech that agrees with his views on Israel and the occupation by Israel of the terrotories.”
What an idiot you are. He defended an Imperial Wizard of the KKK for crying out loud. Maybe you didn’t know what that meant when you read his post.
The Ultimate Jewish thank you!
30+ years of peace on the Egyptian border (camp david)
Who brokered that — the tooth fairy!
“Plaintiffs Drop Suit Over Jimmy Carter Book”
Who didn’t see that coming …
UPDATE: http://mediadecoder.blogs.nytimes.com/2011/05/05/plaintiffs-drop-suit-over-jimmy-carter-book/?smid=tw-mediadecoder&seid=auto
Plaintiffs Drop Suit Over Jimmy Carter Book
By JULIE BOSMAN
A $5 million lawsuit against Simon & Schuster over a book by former President Jimmy Carter was dropped by the plaintiffs on Thursday, three months after it was filed. The plaintiffs in the class-action suit had argued that Mr. Carter’s ‘Palestine: Peace Not Apartheid,’ about the Arab-Israeli conflict, was falsely marketed as ‘absolute truth.’
When the suit was filed in February, Simon & Schuster immediately condemned it, calling it frivolous, without merit and a ‘chilling attack on free speech.’
On Thursday, after the suit was dropped, Adam Rothberg, a spokesman for Simon & Schuster, said in a statement: ‘In the face of a powerful argument for the rights of free speech for authors and publishers, the plaintiffs wisely withdrew their action. We hope that they will consider this the end of the matter.’
Mr. Rothberg said there had been no financial settlement between the parties.
The suit was filed by David I. Schoen, a lawyer in Montgomery, Ala. He said the book contained inaccuracies that the publisher refused to correct. Some reviews of the book, which was published in 2007, said that Mr. Carter had included misrepresentations of the history of the conflict in the Middle East. Writing in the The New York Times, Ethan Bronner called the book ‘a narrative that is largely unsympathetic to Israel.’ Mr. Carter was especially criticized for his use of the word ‘apartheid’ in the title.
In an interview on Thursday, Mr. Schoen said the lawsuit, which was filed in Manhattan federal court, had ‘technical jurisdictional concerns.’ He said he intended to file suit again in state court, beginning in New York.”
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Oh really now, Dave?
What ever its other merits or lack there of the law suit is infantile, and wells being clearly aimed at punishing free speech.
My guess it main motivation is money, ie., a new yacht and codo in Colorado as punishment/reward becasuse somebody said something Mr. Schoen didn’t like.
Mr. Schoen is conspicous by his absence after multiple responses to his comments.
Let he who is without spin cast the first stone.
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If indeed it is Mr. Schoen you are more than welcome to see how a free speech blog operates….. Everything is great until you cross that magic line…. Please do stay…we like to see how peoples minds operate….. Or at least more than 50% of us do… I like peoples real life experiences…
David Schoen:
Without the knowledge that you took the case pro bono, it is reasonable to assume that you’re getting paid by a client. To assert that a reasonable assumption is cynical is probably not good for you or me.
Since this case is pro bono, does that mean you won’t be getting any recompense if you prevail?
Since you’ve done the legal research, how many cases have there been like yours? Since your complaint doesn’t reference any other cases, I’m going to go out on a limb here and assume none. Or at least none that have been successful. It is reasonable to question the motives of bringing a unique case that no other attorney had thought to bring, or will, almost surely, not be successful.
David Schoen: “… My greatest area of naivete, I suppose, despite representing the Klan in the past, being subjected to very real death threats and other similar conduct for past civil rights cases, I simply did not expect the case to provide the basis for routine discourse, in response to various articles and blogs concerning the case, regarding whether the Holocaust happened, whether it was such a bad thing after all, whether all Jews are “vile people”, etc. I’d sure rather know that these folks are out there than have them underground; but I find it very disappointing, perhaps in my naivete.”
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What a remarkable non-sequitur in a response to the heretofore scrupulous good manners on this blog thread. The victim-card won’t get you very far here, neither will it ward off criticism of a case that seems to back-door a First Amendment issue. Don’t even attempt to imply an equivalency of that nature on this blog.
Thank you, CEJ.
As ever, one lives to be of service.