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 guessing that Schoen billed his client for the time he took to write the e-mail to JT.
It speaks incredibly well of JT that he put up this response.
Buddha Is Laughing
1, February 17, 2011 at 1:31 pm
Now that I think about it a bit more, it might be “arugmentum bonus vir”.
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It’s all Greek to me … I know, I know … that was pretty lame
Now that I think about it a bit more, it might be “arugmentum bonus vir”.
BTW, I’m sure mespo will correct me if I screwed up my Latin grammar. 🙂
marc,
Ad hominem literally translates as “to the man”, ergo a statement of personal good deeds could also be ad hominem in defense or “ut vir in tutaminis”. However, a “good man” argument would be “argumentum bonus alio”.
Blouise,
Upon reading you post, I went back and re-read the original column by the Prof. I too found no ad hominem attack but only criticism of the filing with the only “exception” being the suggestion that Rule 11 be applied as a result of the filing being insufficient. Nowhere was the assertion made that Schoen was himself insufficient, only that the filing was of dubious merit at best.
The lady doth protest too much, methinks.
I find it interesting that he does not respond to the content of your criticism except for the wage typo, (which as mysteriously disappeared from your website.) Well, the wides of sin are death.
His argument seems to be that he has done a lot of good lawyerly deeds in the past so therefore this is a good case. What would you call that ? It’s the opposite of an Ad Hominem e.g. He is a bad person therefore his case sucks. It’s I am a good person therefore my case is correct. “Ex Hominem” ?
“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.” (Schoen)
What??!!
This is what the Prof wrote about Mr. Schoen:
“Schoen’s bio lists a degree from George Washington University and has received an award from the American Bar Association for his pro bono work. He certainly has a wide array of volunteer projects and he cites his work as a commentator. He also lists being a member of the National Board of Directors of the Zionist Organization of America and the recipient of the Migdal Ohr Tower of Light Award “by a leading Israeli organization.”
Where is the personal attack? The Prof criticizes the law suit and questions its standing.
Geez … I thought lawyers had to be a little more thick-skinned than Mr. Schoen appears to be …
What Nal said
If this is successful and I hope it is not… Mr. Bush has some problems to worry about…..real problems…. His book……Pointless Decisions….is replete with fanciful fact versus reality….somedays I just have to wonder not if he was binging but how much he had been…
“The courts should come down hard on Schoen for using the judicial system as a publicity tool.”
Bingo!
Follow the money. Who is paying Schoen’s fees? I suspect a pro-Israel lobby, which is fine. Their counter-arguments may have merit. The lawsuit has achieved it goal: get publicity of their counter-arguments, and discredit Carter’s arguments. The courts should come down hard on Schoen for using the judicial system as a publicty tool.
This guy isn’t an idiot, but a zealous advocate for an aggrieved client. It is the litigator’s job to fashion a remedy for his/her clients. I am reminded of my Civil Procedure professor, who said of McPherson in “McPherson vs Buick” that the client did not cross the threshold with a sign on his neck proclaiming “I am a new tort theory”. The same can be said of many inmportant cases. Turley’s leap to a conclusion of sanctions, without a hearing, proofs, etc. is the real stretch her. We need more quixotic lawyers, not less.
What Mike A. said. The ball most certainly doesn’t have an eye or a hand upon it. Unless, of course, the ball in question isn’t Constitutionality, common law or consumer protection, but rather being an apologist and political operative for Israel. He’s all over that ball.
“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.”
All authors of non-fictional books have those who will criticize and question the authors version of events. How is this any different?
There is much that is false in “The Decider’s” book, but is he being sued over it? Last time I checked, no. And he shouldn’t be. There are many who have read the book and either know from past history that his version of events is highly questionable or will do some research themselves to either verify or debunk said version.
Mr. Schoen’s compassion and commitment to the Constitution are laudable. That doesn’t change the fact that he blew it this time around. My personal opinion of the complaint remains unchanged. The fact that it is framed as a consumer fraud action does not affect its substance. It is a political attack by individuals offended by Pres. Carter’s opinions on Israel’s treatment of the Palestinians. Each of us has at least one blind spot, and Mr. Schoen is no exception.
Nice e-mail, other than the fact that it does not address the merits of the issue. The case is frivolous. More importantly, to say that the lawsuit is not intended to challenge what one has to say is simply unbelievable. Either this guy is disingenuous or incredibly naive (and others are taking advantage of him). Attempting to silence others is a tactic consistently used by many pro-Israel groups. Say something negative about Israel and they are going to be on your case in one way or another, disrupt your meetings, not let you speak, lobby to get you denied tenure, etc. Who is going to dare write a book about Israel if they fear they could be sued for millions? This is what they want you to fear.
Wow, he really doesnt have any clue whatsoever what free speach is. Its idiots like Schoen that justifies the general public’s view of ALL lawyers of being scum.
This case should go down in history as the poster child for the most ridiculous class action ever filed, and Schoen’s name & face should be seen as synonymous with “vexation litigant” forevermore.
It’s pity that Rule 11 doesnt allow for sanctions to be applied in totally unfounded cases such as this, which are only crafted for malicious intent, so that the amount they were falsely pursuing against the Defendants is doubled and applied to each Plaintiff separately so that they truly reap what they sow.
FYI:
Palestine: Peace Not Apartheid
http://en.wikipedia.org/wiki/Palestine:_Peace_Not_Apartheid