From: Black Unicorn <unicorn@access.digex.net>
Date: Fri, 27 May 94 14:57:00 PDT
To: tcmay@netcom.com (Timothy C. May)
Subject: Re: Unicorn suit
In-Reply-To: <199405272113.OAA26739@netcom.com>
Message-ID: <199405272154.AA05325@access1.digex.net>
MIME-Version: 1.0
Content-Type: text/plain


Timothy C. May scripsit


> 
> If enough people know that Black Unicorn = Fritz Foobar, then the
> linkage can be made and the "damage" done. As others have said, you
> apparently have some uptight customers. That's not my problem, or
> anyone else's who makes the normal kind of comments on the Net.

I agree on all counts.

> (Tmp
> goes beyond normal, but if your lawsuit was centered around the
> "damages" aspect, then potentially nearly any of our opinions could be
> "damaging" because of your overly sensitive European customers. That's
> not right.)

Where those opinions are cast as fact, and done maliciously I have to 
disagree with you.

Where they are legitimate extentions of argument and discussion, I do.

> 
> I'd say you have some sleazy friends, then. For them to fax off copies
> of what they think of as rants is bad enough, but for one of your
> contacts to then "alert" the others is mind-boggling.

The context was blurred with each successive forwarding.
I might add that as the forwarding went on, it ventured farther into the 
"business associate" types, and much farther from the "friend" catagory.

It's hard to outline without blowing the entire cake, which I'd prefer 
not to do.  Suffice it to say that the distribution was never intended to 
get as far as it did.

> 
> > 
> > No.  You are speaking a truth.  My ideas do fall in line with your 
> > definition of cryptoanarchy.  They do not however make me a radical 
> > anarchist bent on the destruction of nations as tmp alleged.
> 
> Tmp was just using a label. I'll admit the semi-forgery was not
> kosher, though these semi-forgeries are transparent to anyone who
> looks at the headers.

The forgeries, while offensive, were not the main point of contention.  
The defamation was.
 
> But calling you an anarchist bent on the destruction of nations is
> acceptable characterization in a political debate. If I say Bill
> Clinton wants to destroy the health care system, this is normal
> political rhetoric. If Detweiler calls me a Satanist, so what?

I think this comes down to a basic question of line drawing.  We could 
argue all year on this point and get nowhere, so I will merely state my 
position and leave it there.

Where a person communicates a knowingly false or negligent accusation or 
characterization about another to a third party, and material damages 
insue, the communicator is liable in my view.

As I have pointed out before, totally anonymous systems make this 
childish and trival threshold of convience entirely moot.  I hope to live 
to see this day.

> ("What if your customers were Moral Majority Christians?" you might
> ask. Then I'd say that all one has to do is tell one's customers the
> truth.

And this is supposed to convince moral majority christians?

> Under no circumstances can the 'damage" caused by tmp's kind of
> free spech be considered assault.

Again, we just differ here.  I understand and respect your opinion, and 
hope as a practical matter that totally anonymous systems will make this 
a realpolitik reality.

> I'm a free speech absolutist. That
> the comments tmp made came in a heated forum for such political debate
> makes it all the more wrong for a lawsuit.)
> > I've been on the list for some time now, lurking then posting when I had 
> > a feel for who read it, and where it went.  I never felt threatened by my 
> > presence on the list, and never did it occur to me that anyone on the 
> > list could or would "out" me to my business associates.
> 
> Even if they do, so what? Not to sound angry here, but suppose I
> speculated that Black Unicorn = Fritz Foobar? Would the "damage" that
> ensued be my fault? I just don't get it.

Not in so far as you characterized your accusation as an opinion.

This is why there is so much "to do" in libel law about newspapers 
printing "alleged murderer" and so forth.  In theory it's silly.  We all 
know the public reads "murderer" as if the word alleged was never there 
to begin with.  This is a question of damages.  How much damage could 
said accused actually quantify because of this statement?  Who knows, 
probably not much.  In addition if there was no intent on the part of the 
press, there is no case.  Free speech is fairly well guarded in this 
situation.

Non-Media antics are another matter, and can be much more damaging.
 
> That the Cypherpunks list is not public--except when it gets gatewayed
> to Usenet, as has happened a few times--is little protection. If I
> cite your views--but don't quote them verbatim--in a forum where your
> Swiss customers see them somehwo, have *I* committed a crime or tort?

Again, it is not my responsibilty to guard myself against defamation.  I 
did to some extent, but to say that because I did not choose an entirely 
anonymous method that anyone might defame me is to my thinking, silly.

On the other hand, those who are enough in the public image are usually 
given the burden.  (Public figure exception)  This would also apply to 
your Clinton example.

> Not in my view, though the law may think so. (I still say it's free
> speech, even if "damaging." Many things are damaging...negative book
> reviews, unflattering opinions, etc. Sadly, the American legal sytem
> is moving toward allowing these "damages" to be the basis for suits.)

Book reviews also fall into a public figure catagory.  As do most of the 
tabloids.  I agree, there is a problem.  

What redress is there however for the defamed?

Can Joe Blow really call my clients and produce forged evidence that I am 
a fugitive white collar criminal, destroy my business and hide behind 
free speech blankets?

Again, it's a question of line drawing.


> 
> The proper and normal response to accusatory rants is to answer them. 

I guess it's my turn to sound angry.  When was the last time you answered 
tmp publically?  I don't mean this to be a barb... but I just don't think 
that direct confrontation is always the answer.  As it was, my case was 
quickly resolved between the parties.  How much more free speech can you 
get?  He's welcome to violate the settlement agreement, and I can push a 
claim again.  How likely this is to win in the courts is an issue for 
legal speculation.

> 
> Are you calling for limits on "accusatory rants"? The Founding Fathers
> would not be amused.
> 

Of course not.  

Rants and active defamation are two issues much distinct.

I simply am exercising my legal rights in so far as I was harmed.  As it
turned out, tmp corrected the situation and was quite cooperative when we
finally talked.

> > The real difficulty in these affairs is that not to file a suit is often 
> > more damning than anything.
> 
> 
> I think your reputation would have no lasting damage done to it by
> ordinary speech. Even so, Detweiler's rants are clearly broad-brushed
> insults, which courts should not regulate.

Again, we have a line drawing contest here.  I just go a little father, I 
don't even think extensively father.  Frankly I don't think U.S. courts 
go much farther either.
 
> Your uptight Swiss clients should be taught not be believe everything
> they read. 

I should be able to conduct business, without interference, in peace, 
with whomever, whenever, whatever, and however uptight, as I choose.  

Period.

> > 
> > A settlement is vindication enough in my case.
> > 
> 
> Except that Detweiler's "apology" was obvious satire, almost identical
> to the "apology" he posted to the Cypherpunks last December. He is
> likely now planning a much more massive assault on you and his other
> perceived enemies....a campaign of fabricating quotes, arguing with
> himself via different pseudonyms, etc.

The settlement was much more extensive then a mere public retraction.
 
> And now that he knows your uptight Swiss customers are so sensitive, he
> will probably try to find ways to let them know about your "anarchist"
> leanings. 

And to the extent that he does so anonymously, I will have no redress.  I 
accept this.

> If he's as smart as I think he is, he'll use the network of remailers.
> He'll also try to fabricate quotes that make you seem like a truly
> vicious money launderer, perhaps with insinuations that your furniture
> business is a cover for drug trafficking. (If I were Detweiler,
> licking my wounds, plotting revenge, that's what I'd do.)

Again, I accept this as a possibility.

As for the drug trafficking, since truth is an absolute defense to libel, 
I will have no case.

> If this happens, as I predict it will, your recourse will be to either
> try to force the remailer operators to produce the logs (so you'll
> have somebody to sue), to sue the remailer operators per se (which
> will become a test of common carriage, unless they back down),

I will not sue an overseas remailer like Julf.
I will be tempted to ask a local one if tmp is indeed breaking a 
legitimate settlement agreement, I will not sue if I am refused.

> or--best of all--to tell your Swiss customers that bizarre rants are
> the outcome of a society which tolerates free speeech and that they
> should ignore all posts allegedly written by you unless the posts are
> coming from your site, or, better, have been digitally signed by you.

Easier said than done.  Luckly I believe I have this taken care of.

> As Nat Henthoff says, "sunlight is the best disinfectant." 

Indeed.

> 
> 
> --Tim May
> 
> -- 
> ..........................................................................
> Timothy C. May         | Crypto Anarchy: encryption, digital money,  
[...]

-- 
073BB885A786F666 nemo repente fuit turpissimus - potestas scientiae in usu est
6E6D4506F6EDBC17 quaere verum ad infinitum, loquitur sub rosa    -    wichtig!