Thursday, November 29, 2007

Threats Database/Is There an MCRA Claim Here?

The Citizen Media Law Project has set up a threats database to log instances of threats leveled (typically by lawyers and government authorities) against persons for their online speech. I'm not sure how effective the database will prove as a shaming mechanism, but it certainly raises awareness about the problem and lets you know Who the Bad Guys Are and What They're Up To.

As for How To Get 'Em Back, I wonder if the Massachusetts Civil Rights Act doesn't furnish threat recipients with a cause of action for damages against lawyers who target "objectionable" speech with demand letters. Chapter 12, § 11H of the Massachusetts General Laws makes it unlawful for any person "to interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth." That section authorizes the state Attorney General's office to bring a civil case against violators to enjoin their unlawful practices.

Section 11I gives any person "aggrieved" by a § 11H violation the right to sue for compensatory damages. If the plaintiff prevails, he or she is entitled to attorney's fees and costs.

Although it warns that the law was not intended to create a "vast constitutional tort," the Supreme Judicial Court tends to read the MCRA pretty broadly. Speech certainly isn't "free" — at least not completely — if it's tortious, or if it infringes another person's intellectual property rights. But speech that isn't and doesn't (respectively) certainly is constitutionally protected, and a letter from an attorney has to qualify as an "attempt to interfere by threats, intimidation or coercion." My guess is that if any of the claims contained in an attorney's demand letter (defamation, copyright infringement, trademark infringement or dilution, etc.) has any merit, the MCRA claim would fail. If the asserted claim is a loser, the threatened party could well be entitled to damages — and certainly so if the case is frivolous.

A preemptive lawsuit would no doubt provoke a counterclaim from anyone who thinks he or she had asserted a nonfrivolous claim in the initial threat letter. But it has more kick than a lawsuit for declaratory relief, which would simply result in a statement from the court that the contested speech is not actionable, and the prospect of compensatory damages and attorney's fees adjusts the underlying economics of the confrontation in the threatened party's favor. At the very least, the MCRA offers a colorable predicate for a "threat letter-in-reply."

Finally, and perhaps most significantly, I don't see any reason why an attorney who overstated his or her client's position in a demand letter could not be personally named as a defendant in an MCRA case.

I'd be curious to know to what extent other jurisdictions carry laws similar to the MCRA.