Lawfare

Guest Post by The Zman

The weaponization of the law, particularly the civil courts has become so common, that we no longer notice it. The most obvious example is when  someone gets acquitted of a crime, but then the alleged victim goes to civil court for damages. Alternatively, some hate thinker gets off in state court, but the the feds come in and charge the guy with civil rights violations. It’s an obvious abuse of the law in order to get around the jury system, but it is now just another feature of a system more concerned with vengeance than justice.

The college rape hoax phenomenon is another variation on this. A mentally unstable coed makes claims that can never be proved, but the school, fearing Title IX litigation, punishes the accused anyway. The SPLC is doing something similar with their litigation against the website, The Daily Stormer. The point of the suit is to shut down the site, because the people at the SPLC don’t like the content. Even if the case is eventually tossed, the point is to intimidate the owner and anyone who holds similar opinions.

This bizarre story is a new twist on how the lawfare game is being played.

Tumblr has released account information for close to 300 anonymous users to a revenge porn victim in what online privacy advocates say is a major violation of the First Amendment.

The 27-year-old New York victim, who first learned that an unauthorized video of her having sex with a boyfriend when she was just 17 had been posted on Tumblr ​​last winter, plans to sue the users for disseminating child pornography.

“The ultimate goal is to expose these people,” said attorney Daniel Szalkiewicz, who represents the Bronx victim.

“There is no First Amendment protection for child porn,” Szalkiewicz said.

On Monday​,​ Tumblr complied with a June 7 order issued by a Manhattan state court judge to release the email addresses and account names of 281 Tumblr users.

You’ll notice the legal base stealing. Is this woman a victim? We can’t know that until it is established that the video was shot without her consent. If she agreed to the filming, which is most likely, then she is the victim of her own stupidity. Then you have the legal fiction that this is child pornography. No one in their right mind would call this child porn. Clearly, her lawyer is hoping that fear of being tarred with “child porn” is enough to coerce a settlement. The Mafia would be envious of this maneuver.

What we have now is litigation in the shadow legal system. The lawyer has coerced the company into aiding him in what amounts to a shakedown. The lawyer is also using the media to threaten his targets with exposure and all that comes with it, unless they agree to pay him off. It is a clever legal trap. In order for these people to defend themselves, they first have to admit to viewing the material. A First Amendment defense would argue that they had a right to look at what was posted on the site, even if it was illegally posted.

Once you admit to viewing the material, you run the risk of losing the initial claim and then having to argue about whether it constitutes a violation of child porn laws. You don’t have to be a graduate of Harvard Law to see that the easiest way out of this trap is to settle as a group and get some sort of non-disclosure in place. In other words, this case is not brought in the interest of justice or to mitigate harm done to the alleged victim. It is a shake down and what most people would consider extortion, even if the court does not.

This goes back to the Servile State post. No one in this sordid relationship is free in any meaningful way. The big bad company is being forced to supervise its users, to make sure they do not violate the ever shifting morality of the people in charge of the state. If they fail in that duty, they are forced to help punish the users they did not properly supervise, by ratting them out to the state. The result here is that everyone is responsible for everyone else. It turns everyone into both a slave and slave master.

That’s the other aspect of lawfare. It is uncivilized. Into the Middle Ages, tribes in Europe still practiced the wergeld. This was the price put upon a man’s life based on his rank. If a rich man killed a poor man, by accident or on purpose, he could pay the victims family in gold for the value of his life. You can see how this can quickly get out of hand. Not only would rich people feel free to kill inconvenient poor people, they would be tempted to kill their families too. No family to pay, means to no wergeld to pay.

That’s what we have with lawfare. Instead of the law determining if a crime has been committed and then determining the guilt or innocence of the accused, the process is about determining the price of this woman’s honor, as it were. In the future, the courts may be forced to post prices for posting revenge porn so that angry ex-boyfriends know in advance the risk of hitting send. At the same time, young women will now know what they can get for agreeing to be filmed having sex with that guy they picked up at the bar.

That’s sarcasm, obviously, but lawfare is not a good thing for a society. What cases like this do is undermine the respect for law. It is why the bar associations used to forbid advertising on TV. They knew that greasy sleezeballs in their ranks would go trolling for slip and fall cases and phony disability claims. That’s been the result and as a consequence the public’s respect for lawyers has declined. If you want to have a low-trust society, erode public faith in the law. That’s exactly what lawfare is doing in America.