David Schoen Responds To Criticism Over Lawsuit Against Jimmy Carter

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

52 thoughts on “David Schoen Responds To Criticism Over Lawsuit Against Jimmy Carter”

  1. 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. It’s a blind spot that affects many otherwise rational people albeit a giant, massive, glaring blind spot.

  2. David Schoen:

    “What I think troubles me most here, though, is the acceptance, at least by some, that either generally all facts are really susceptible to being described in “versions” and that there are no events that either actually happened or did not happen; rather it can all be put within the realm of perception or someone’s “version.” No truth or falsity as to any facts.”


    “The truth is rarely pure and never simple.”

    ~Oscar Wilde

    So long as men are the medium through which the truth is known it will be always only be a perception of the truth. The world, and in particular the Middle East, does not lend itself to black or white truths. That is not to say that some things cannot be rendered to a certainty, but in the area of diplomacy I’ll accept Talleyrand’s observation that, “A diplomat who says ‘yes’ means ‘maybe,’ a diplomat who says ‘maybe’ means ‘no’, and a diplomat who says ‘no’ is no diplomat.”

    I find Wilde and Talleyrand more to my liking on notions of truthfulness and diplomacy than Schoen’s play for profit to the tune of $5 million. (By the way save your class notices to me, I’ll opt out) If your interest is the welfare of the public, why must it come with a price tag payable to your clients?

    Let’s call this suit what it is — in the interests of objective truth, of course.

  3. In court yesterday and missed this little ditty. Me thinks the lawyer doth protest too much. He may indeed “have some sense of the First Amendment,” but to reanimate the old bromide “a little knowledge is a dangerous thing.”

    To couch this as a consumer protection case is the laughable part, and to equate JT’s comments as an ad hominen attack takes it into the realm of the absurd. If he thinks he got his thin-skin worked over on this blog just wait until he takes a gander at that Rule 11 order.

  4. I took a business law class in college & I loved it. The professor was a lawyer and extremely challenging. He would call on you to recite the fact of the case assigned and how you thought it should be decided. No matter what answer you gave he would take the opposite side, aggressively, and make you defend your position. I felt this was an amazingly important class as it made me think very hard about what I believed and how I reasoned. It seemed to me that, if this was representative of a legal education, lawyers would be prepared to really reason, think, explain and argue their points.

    This email disproves that. Minuscule thinking, no reasoning, but he does get the argument part.

  5. “What I think troubles me most here, though, is the acceptance, at least by some, that either generally all facts are really susceptible to being described in “versions” and that there are no events that either actually happened or did not happen; rather it can all be put within the realm of perception or someone’s “version.” No truth or falsity as to any facts.”


    Oh well … I am now going to retire to another thread wherein I will write the thought that popped into my head.

  6. Israel is neither above criticism nor are they a state with a spotless record on either human rights or diplomacy. There is also a history of trying to silence critics of Israel’s policies like Professor Ilan Pappé and Dr. Norman Finkelstein by neoconservatives and the most hawkish in the Israeli right who inevitably try to paint any criticism of the Israeli government as antisemitism. Such actions are false equivalences at best and thuggish repression at worst. I have great empathy for the Jewish people and acknowledge their right to exist as a state, but being a state – no matter how horrific the circumstances that led to the founding – comes with responsibilities. Quite frankly, and I’ve said this before, over the last 40 years or so the State of Israel has not always lived up to those responsibilities. The Israeli people, much like the American people, deserve a much better government than they have – one that respects the rule of law both domestic and international instead of carrying water for the military/industrial complexes agenda of perpetual war. The Holocaust is not carte blanc to be either an abusive or an aggressor state and remain free from criticism or consequence. If Israel doesn’t like being criticized? Then their government should act better than it does, but especially as related to the peace process and their increasingly poor treatment of Palestinians in Gaza. The people of Gaza have human rights too that are just as worthy of respect as the human rights of any Israeli. A dual state solution is the only pragmatic path to peace and the far right in the Israeli (and American) government deserve to be criticized for actions they take counterproductive to gaining a lasting peace between Israel and her neighbors.

    And what raff said.

  7. Thanks CEJ. I just wish I had proofread it and caught my typos ahead of time! I was going to type it correctly, but some very famous person suggested that I leave it the way it was. You would know him/her if I told you, but I don’t want to ask his/her permission. But I am a nice guy!

  8. Hey Raff,

    You are so right; and Mr. David Schoen may be just the man I’ve been looking for to sue Rupert Murdoch and Roger Ailes!

    The wait is over – to quote Mr. Schoen “some simply don’t think a lawsuit is appropriate ever if one accepts the premise that there are LIES presented as the truthful reporting of historic events.”

    And “More specifically, it is frustrating that some cannot conceive of the concept that what Fox News (AKA: Faux Spews) presented as truth or a “completely accurate” account of historic events simply is neither either (sic) because the events never occurred or because they occurred in a very different manner – not subject to perception or misperception (sic).”

    Mr. Schoen, forgive me for not contacting you immediately as it may be prudent of me to curb my enthusiasm and await the outcome of this case.

    I wish you “Good Night and Good Luck” and if you see a smiley face at the end of this sentence it was the result of hitting the colon key followed by the right closed parentheses key, if not well then never mind. 🙂

  9. Mr. Schoen,
    With all due respect, I do not believe you. To bring up an unknown and unnamed party as evidence that you didn’t suggest the tactic that you utilized, is lame and not germane to the discussion. You signed your name to the complaint so defend it’s merits and don’t try to hide behind a hidden party. If you are so concerned about the truth in publishing, you could make a career out of filing actions against every Fox News personality who has written a book. Or you could go on the news and discuss the lies about the Jewish military attacks on civilians in those relief boats try to reach Gaza. I agree with Buddha that you doth protest too much. I sit just a coincindence that you are attacking someone who just happened to suggest some negatives things about Israel? I don’t think so. Thank you for your time.

  10. I’d like to respond to some of the comments. I apologize ahead of time for wasting the time of those who feel that this further response is just that. Maybe you will just skip the rest.

    First, as I wrote to Professor Turley, I think it is very kind of him to have afforded me an opportunity to respond and to note the response. I recognize that I could have just posted one like this; but it was his idea to use my email as a post and I thought that was terrific – even if he did so while taking some pleasure in knowing how it would be received by this audience. (don’t know how to put a smiley face here).

    Second, for the especially cynical, so you don’t have to guess or automatically draw negative assumptions, probably not good for you or me, I am not being paid anything for my work in this case – as has been my practice for probably the majority of my cases. I have to hope that the monority of them provide enough to afford me to take the pro bono ones, a practice many of my friends who are far better lawyers than I follow as well. I was paid a small fee initially to do a bit of legal research by a person who was interested in the legal issue involved and that was the extent of it. I did not bill for my email to Professor Turley or for this response.

    As for the comments regarding my failure to address the merits of the case, that was solely a function of the fact that I was writing a personal email to Professor, who wrote so stridently in his criticism of the case, and I did not see any use in wasting his time trying to show him the error in his perspective. Frankly, I did not and do not consider that an area to which he would be open to changing his mind, based on what he has written. I beg to differ with those of you who cite the words where my name specifically is mentioned and then assert that there was no personal critcism or certaintly not enough to warrant a complaint on that front. I take the Professor’s vigorous call for sanctions, especially couched as it is, along with other comments about the attorneys in the case to be an attack on motives, agenda, and the amount of consideration and research that went into the decision to file as the kind of criticism that, especially given my past work, at least would have led me to reach out to the object of my criticism first to try to see what kind of person this is and what his/her stated motivation, forethought, etc. was regarding the filing of the case. That was the focus of my email. Obviously, since I filed the lawsuit, I am prepared to discuss its merits and good faith basis for it anytime. I did not write thinking that because I am a good person or a person who has done some good with civil rights cases, that I deserve a pass on criticism or that anyone should consider either those or this case or me, for that matter as having any merit. Perhaps, as suggested, I am not as thick-skinned as one would hope in my line of work.

    I don’t any of the following would change the mind of anyone on this list whose post I have read about whether there should have been a lawsuit, etc. (except perhaps J.Brown, whose post seemed to reflect someone perhaps open to listening on the subject); but to me they are some important factors:

    1. I wish, given the vitriol and the clear, to you at least, basis for sanctions here, that I could tell you whose idea it was to frame the lawsuit as it was and to rely on the causes of action raised. I can say without reservation, and especially say in trying to discern some common traveler factors among you (which I know is a risky/foolish endeavor), that you universally would respect the stature, opinion, and good sense of that person and I would venture to guess that certainly Professor Turley and perhaps others of you know, respect, and perhaps count this person among your friends. However, based on the kinds of things written here and his position at present, I will refrain either from asking his permission or from explaining further on my own. You can either trust me on this or not and you certainly can conclude that that is irrelevant to your evaluation in any case. I just make the point for whatever it is worth and so, if you care to trust me on it, you don’t just relegate it to the work of an irresponsible lawyer or publicity hound.

    2. I understand the basic premise of some complaints about the lawsuit, especially (of course) those who claim it to be an attack on free speech; but I have difficulty understanding why it seems to some conceptually beyond the reach of consumer protection laws. I’d like to give you some examples to illustrate the point; but that just doesn’t work well on a blog, unless I want to make a career out of defending the example. Anyone can distinguish the examples, but I believe I could show you why such distinguishing factors were of no moment to the underlying question.

    3. What I think troubles me most here, though, is the acceptance, at least by some, that either generally all facts are really susceptible to being described in “versions” and that there are no events that either actually happened or did not happen; rather it can all be put within the realm of perception or someone’s “version.” No truth or falsity as to any facts. More specifically, it is frustrating that some cannot conceive of the concept that what Mr. Carter presented as truth or a “completely accurate” account of historic events simply is neither either because the events never occurred or because they occurred in a very different manner – not subject to perception or misperception.

    Now I fully understand that is not the complaint at all here by some. Some simply don’t think a lawsuit is appropriate even if one accepts the premise that there are lies presented as the truthful reporting of historic events. That is a different question, I also could address in another forum. But I wish those of you in the first camp – a sort of moral equivalence camp in which there is no black or white or truth or lie – all is perception, that you could at least consider the directness with which carter’s closest aides and confidantes wrote in exposing outright lies in the book and the dangers they believe such lies pose on developing opinions on events (based on false representations of facts) and the very evil of doing what Mr. Carter did. Again, I know for most or all of you that wouldn’t get you to agreeing a lawsuit is right; but I would hope it would at least get through a bit to those of you who would portray the case as about a group that just like that Jimmy told the uncomfortable truth, or that Jimmy just called it like he saw it and others claim to see things differently. That, for sure is not what this case is about. True there are examples of untruths given in the complaint that reflect exaggeration or understatement of characterizations that his aides have said are untrue or unfair; but the heart of the lawsuit is about facts and events which are presented by Mr.Carter on issues that are key to anyone who buys such a book based on the promise that it will provide a true account of the events, in a manner is demonstrably, unequivocally, and indisputably false – at least that is what the lawsuit charges and what Dennis Ross, Ken Stein, and others of carter’s biggest supporters, closest friends, aides, and confidantes have said and have written in the most adamant terms. Dennis Ross calls carter’s presentation of certain facts in his book which are critically important to understanding the peace process “untrue,” “illegitmate,” and “myths” which mislead the public and otherwise genuinely risk undermining the peace process itself. He cites as demonstrable fact, Carter’s intentional (and continuing after being corrected) juxtaposition of maps presented by the two sides, knowing that he has juxtaposed them and has done so for a bad purpose. Respected Emory University Professor Ken Stein, one of carter’s longest standing supporters, friends, confidantes, etc. is even more blunt. He writes that Carter’s book is “replete with factual errors, copied materials not cited, …and simply invented segments.” He then explains unequivocally how he knows and can prove this to be the case. The grave danger, he notes, is that, especially coming from a person with the stature of a former President, such falsehoods, told often enough (read, believed, and repeated by readers of his book)”become the base-line for shaping and reinforcing attitudes and for policymaking.” Professor Mel Konner wrote to the same effect, expressing his bafflement with Carter’s blatant distortion of the truth about historic facts and events. Again, these are all mainstream folks who were huge Carter fans and friends. I understand that might not convince you that a lawsuit is appropriate; but it should for some fairminded people disabuse you of the notion that this matter is about Carter’s version of things vs. others and that all are equally valid. At any rate, that would be a jury’s role to evaluate.

    4. I also would like you to know, for whatever value you place on it – to at least consider when you write about the frivolity of a case of this nature, that it has no basis in law, etc. the following: the last time I am familiar with that this exact law and other similar provisions from other States in actions bought by other book readers claiming to have been deceived by a book that was marketed a truthful account of events when it was not,the responsible publisher immediately settled the cases, undoubtedly feeling ashamed at having so misled its readers.

    5. Finally, for those of you who suggest the plaintiffs should have just requested a refund, I’d like you to know that every effort anyone with whom I am familiar made to get the publisher to take some action, to just acknowledge some factual errors, based on what all of the experts and participants in the underlying events had written, was completely rebuffed and, indeed Carter’s response reportedly was to go on a book tour continuing to insist on its complete accuracy, knowing that simply was not true.

    Then and today, all the publisher would have had to do would be to seriously address these falsehoods concerning the historic events in the book and acknowledge publicly that the falsehoods and misrepresentations are just that. Then and today, if they just tendered back the purchase price to those who want the same, there would be no lawsuit. You don’t think that is fair to ask, perhaps; but I do, purely as a consumer matter.

    I will admit to some naivete, as has been suggested, in a lot of areas. One is the reaction to this lawsuit, both positive and negative. 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. Sorry for any typos and for the length of the additional response.

  11. Mr. Schoen wrote:

    “…to perhaps contact me to see what motivated me or what the thinking is behind the case before writing such biting personal attacks.” Later in the letter, he repeats the idea of, “If only Prof. Turley had contacted me….”

    I re-read the original post – as BiL pointed out, it’s totally lacking in a personal attack on Mr. Schoen.

    Two comments:

    1) As professionals, our work needs to stand on it’s own. As others have pointed out, Mr. Schoen’s comments do nothing to refute Turley’s specific comments, for instance about the filing being more of a PR release than a real legal argument, etc. It doesn’t matter if David is a really great guy, or meant well, what he publicly filed with the court has to stand on it’s own. We don’t expect the court to read the filing and think of what “nice guy David” and perhaps take it to mean what he “meant that it should say.” The filing is what it is, and that’s the basis on which this professional actions is going to be viewed.

    2) I’m glad I didn’t pursue becoming a lawyer, because I can see how my own head would have become twisted by the work… This whole letter seems to say, “Your critique of my work is really a “biting personal attack” on me. But, see… I’m such a nice guy with all these other good things I’ve done, so don’t critique this case!” That’s totally nuts and I’m glad I didn’t go into a profession that warps your head that way.

    (begin sarcasm mode:) Instead, I’m an Architect, so when you critique one of my designs, it REALLY IS a personal attack on me! But, hey, unlike the law where you’re theoretically making rational, factual arguments, I can just say that if you don’t like my design, you clearly have bad taste, and imply that you are simply a less sophisticated, interesting person.(end self-mocking sarcasm mode.)

    Are we really supposed to think that Mr. Schoen looked around for the worst example of a misleading “non-fiction” book that was cheating consumers, and picked Mr. Carter’s book as that most glaring example? Or the subject matter and/or politics had nothing to do with his decision?

    Now that Mr. Schoen has a contact in the Israeli legal system, I’d be fascinated to see if he puts some effort into applying the same reasoning that leads him to defend the human and civil rights of disadvantaged people in the US to defending the human and civil rights of disadvantaged people in Israel? Perhaps he could help to prevent some Palestinian families from having their homes demolished? I guess time will tell.

  12. Nal
    1, February 17, 2011 at 3:33 pm
    I’m guessing that Schoen billed his client for the time he took to write the e-mail to JT.


  13. Why didn’t he just advise his clients to return the book for a refund if they didn’t like what it said?

  14. I’m no political scientist, but it seams to me that Schoen’s criticism of Carter (via lawsuit) is representative of what is becoming a widespread phenomenon in this nation, but has existed for decades with respect to Israel: Opposing sides of an argument refuse to acknowledge the other side’s version of the facts as even remotely true. Instead of promoting debate, which free societies view as healthy, such behavior shuts off debate entirely, making a society intellectually poorer.

    With that said, I wish Schoen approached this suit with the same fairness and desire for equality as it seems drove him in his previous work. So what if he’s been a good civil rights lawyer? That doesn’t make him immune to criticism for filing a ridiculous lawsuit which–although he states otherwise–is a frontal assault on the marketplace of free ideas. I’ve never read Carter’s book, but I’m going to assume that he basically says Israel is causing itself more harm than good by steadfastly adhering to seemingly useless policies which systematically oppress an entire population (hence the use of the term “apartheid”). I’m not trying to put words in Schoen’s mouth, but it seems his complaint contends that President Carter is saying small details (I don’t doubt Schoen considers them extremely significant details) are incorrect, and not that the underlying premise of the book is flawed.

    I, being part Jew myself, believe a Jewish state is a good idea, although I do not believe it necessary to the survival of the Jewish people. More importantly, I don’t think it unreasonable to believe the First Amendment, free expression and the marketplace of ideas are all more important to the survival of all people, Jews included. Here’s hoping that rule 11 sanctions are issued, and that this case is not heard on its merits.

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