Michael Nellis 03 June 2003
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02 Jun 2003
What a pair of goddamned idiots. How a judge can do something like this is beyond me. And as for Little Miss Goody Two-shoes, I have no doubt that she is a snivelling, PC twit.
Well -- I don't know much about judicial procedure but from a layman's point of view this ruling sucks from start to finish.
To address point #1: I suppose that his being served with the court order before being served with the law suit could be chalked up to a clerical error, and that this constitutes a rather minor point and an invalid criticism. Except for:
Point #2: he was tried and found against in what amounts to a secret trial. One of the amendments in the U.S. Bill of Rights guarantees your right to face your accusers in open court. In failing to advise Max of the lawsuit and to require him to show up at a hearing and to show just cause why such a court order should not be issued, he was denied his right to defend himself and found against arbitrarily.
Point #3 (subpoints 1, 2, & 4): The Katy Johnson who is Miss Vermont 1999 and 2001 can hardly be the only person with the first name Katy and the last name Johnson. In fact Johnson is a fairly common family name. Nor is she the only Miss Vermont. Subpoint #3 is marginally acceptable in that it could allude to one specific Katy Johnson. In any event, the court order should specifically identify that Katy Johnson who was Miss Vermont '99 & '01. Whether it does or not I can't say as I haven't seen a copy of it. I doubt that it does, though, since the order is reported to be overbroad in the first place.
Point #4: This point, more than any part of this ruling, smacks of a wholesale free speech violation. The source article, from the New York Times, quoted Max's lawyer, John C. Carey:
Katy Johnson holds herself out publicly, for her own commercial gain, as a champion of abstinence and a woman of virtue. The public has a legitimate interest in knowing whether or not her own behavior is consistent with the virtuous image that she publicly seeks to promote.
See, she made of herself a public person by running for and winning the position of Miss Vermont. She further opened her life to public scrutiny by creating a personal web site[01]. Not to mention that she was featured in Teen Magazine. What really has a bug in my britches about this affair, however, is that Max is basically prohibited from talking about his own life. The material on his web site[02], which site has pretty much the same commercial application Johnson's does, was apparently about his relationship with Johnson. It was as much about himself as it was about her. And it was apparently part and parcel of his promoting his own products. Further to that, however, is the very valid point that the public to whom Johnson appeals has every freedom to access any and all information about Johnson so they can develop their own opinions about her credibility. This alone is a flaw fatal to Judge Lewis's ruling. But it goes further than that.
The source article states:
In her lawsuit, Ms. Johnson maintained that Mr. Max had invaded her privacy by publishing accurate information about her and had used her name and picture for commercial purposes.
Now, this is especially important. What this twitterpated airhead should be doing is to sue Max for libel. Except she obviously can't. As I've mentioned elsewhere: in the U.S. libel must be published with a reckless disregard for the truth. You cannot slander a person by telling the truth about them. Furthermore, U.S. libel law also requires malicious intent. Yet Johnson apparently admits in her lawsuit that Max's material was posted as commercial speech. So this censorship is the only recourse she has to squelch speech she finds unpopular. And I have no doubt whatsoever that this is censorship. Her lawyer, Santucci, was quoted as saying in the press release,
"This victory should send a clear message to all parasitic smut peddlers who live off the good names of others." and, [Ms. Johnson] "emphatically denies the story contained on Tucker Max's Web site."
Okay, people, why all the bafflegab? If she denies the story, that should be because it is not true and she has grounds for libel. Yet in the papers that were filed she apparently states that the information is accurate. Then too, there is Santucci's obvious ad hominem attack against Max; his condemnation that Max is of those "parasitic smut peddlers"[03]. Smut, is not a legal term, and like pornography, to which, I assume, it alludes, smut is not illegal. Not to mention that the material is probably not pornographic at all. Nor is Max parasitic if he is running his own business. But the negative affective connotation created is that Max is some kind of squirming-brained pervert who deserves everything he gets including a good old fashioned lynching. And, of course, in the public perception "those" kind of people shouldn't be allowed recourse to rights and freedoms. Plus, one generally engages in ad hominem attacks when one can come up with no valid counter-argument to the arguments of one's opponent. Unfortunately, this is mostly a side issue. More to the point is the attempt to gag Max to keep him from even talking about the lawsuit itself.
At any rate, the only conclusion at which I can arrive about Katy Johnson's comportment in this affair is that she is attempting to squelch real and true information about herself because it paints her in an unflattering light[04]. And Judge Lewis' ruling is so patheticly bad and such an obvious first amendment violation that it should not have been made in the first place. The only thing she got right on this one was her decision in Point 5-2.
Personally, I have no doubt at the moment that this ruling will never survive on appeal. But assuming that it does for the sake of argument, where would that leave us? Basically, you could be prohibited from talking about your ex-spouse or ex-boy or girlfriends completely just because they think you are talking about them behind their backs. The infamous photos of the nude Doctor Laura, or the video of Pamela Lee Anderson, taken by their then boyfriends, would be banned from servers in the U.S., although I don't see how anyone could stop the same material from being mirrored on a server in Holland or a country where pornography is not the perversion it is in the puritannical Benighted States of Amerika.
Mind you, such incidents are likely to be few and far between for several generations. The slippery slope is a very real phenomenon in the physical world, but most people make the mistake of thinking of slippery slope movements as being fairly quick. They can be, if the wrong people take power in the worst of circumstances. The Taliban is the best current example of that, but they were operating in a socio-cultural climate conducive to such a movement. More often, however, the slippery slope is akin to glaciation. While a slope must be in place, it still requires the slow and patient accumulation of hundreds of snowfalls before the glacier begins to move. In this metaphor, what happened with the Taliban was more akin to an avalanche from ice breaking off at the foot of the glacier. The glaciation metaphor can be used, however, to describe the movement from one extreme of religious intolerance to the other in regard to witchcraft in Middle Ages/Early Renaissance Europe. In 1108, the then pope published the Canon Episcopoli, in which he decreed that there was no such thing as satanism and that it was heresy to believe in witchcraft of that sort. By 1484-85 the socio-cultural climate was ripe for the two chief heretic hunters to trigger the witchhunts that went on until the early 18th century. The deciding factor was that in 1484 the pope was a paranoid lunatic who believed witches were trying to assassinate him by hex. He ruled that it was heresy to NOT believe in satanist style witchcraft[05]. And this mindset is still alive and well today among christian religious fanatics[06].
At any rate, to drag myself back on topic, let's get around to the most likely threat against free speech if this ruling is allowed to stand: third party intervention.
Basically, I fully expect that if this ruling is not overturned, censorship advocates, such as the MacDworkinites[07], will be quick to exploit the precedent to demand that pornographers remove from the internet material that features former girlfriends. Of course, the term "girlfriend" will mean any female with whom a male has had any kind of relation at all, however casual. And, of course, they will not care if the girlfriend in question has given consent. Sounds rather like conspiracy theory, but there seems to be a precedent upon which this reasoning is based. In The Myth of Male Power[08], a case was reported wherein a male and a female co-worker who were joking around were overheard by a third (male) co-worker. As some of the jokes were risqué, this third party decided that the the female was being sexually harassed, and filed a complaint against the male. Apparently, even though the female had participated willingly in the interchange and had denied that she was being harassed, her male co-worker was found guilty of sexual harassment[09].
Third party intervention is clearly another snowflake in the avalanche that could someday sweep down and destroy this end of the global village.
FOOTNOTES:
[01] Ms. Johnson's site is www.katyjohnson.com
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[02] Mr. Max's site is www.tuckermax.com
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[03] Yeah, yeah, I know. Adversarial process. Intellectually: Carey is probably just shooting off his face to create a prejudicial atmosphere as part of his game plan. Emotionally: it still sucks.
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[04] Unfortunately I haven't seen the material in question. It was removed due to the court order. However, it could very well have been written so as to tell the whole truth about Max's relationship with Johnson and still have been slanted to make her come across as the Whore of Babylon. To quote myself: it's not just what they say, it's how they say it; and what they don't say.
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[05] Deviance and Moral Boundaries
Nachman Ben-Yehuda -1985
ISBN 0-226-04335-5
Dewey # 302.542 B479
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[06] Satanic Panic: The Creation of a Contemporary Legend
Jeffrey S. Victor
ISBN 0-8126-9191-1 (cloth)
Dewey #364.1 V643
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[07] MacDworkinism is a term coined by Nadine Strossen, president of the ACLU. It refers to proponents of the Catherine MacKinnon and Andrea Dworkin style of censorship advocacy which targets pornography from a most blatant political correctness viewpoint. The difference is, they attempt to invoke censorship from an extreme left-wing political stance rather than from an extreme right-wing religious stance.
Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights
Nadine Strossen (Pres. ACLU) -1995
ISBN 0-684-19749-9
Dewey # 363.47 S924
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[08] The Myth of Male Power
Warren Farrell -1993
ISBN 0-671-79349-7
Dewey # 305.32 F245
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[09] However, I don't know if that case went to civil trial or not. In a sane and rational system, such a decision would never be allowed to stand any more than Judge Lewis's ruling. Plus, the harassment complaint would have been handled at the corporate level, and probably by people with no previous experience in such matters. Their PC decision was almost certainly a matter of erring on the side of caution; basically: well, let's find this guy guilty to make sure
nobody sues us because we didn't.
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