Newt Gingrich's Lawyer Displays Ignorance Of Both Twitter And The Law In Sending C&D

from the wow dept

Wed, May 20th 2009 7:40am — Mike Masnick

It really was just a few weeks ago that we were told that lawyers knew better than to send a clueless cease-and-desist letter... and then we get this story. Apparently a group that is in favor of a certain law that Newt Gingrich opposes sent out a Twitter message that included the @newtgingrich username to stir up some interest in a petition they were working on. This is part of how you use Twitter to communicate with others and get attention from certain people. But apparently Gingrich's lawyer was upset that Gingrich's name was being "used" in a message in favor of a law Gingrich opposes, and sent a ridiculously bad cease-and-desist letter that the folks at the Citizen Media Law Project dubbed: "How to Make Your Client Look Bad, in Three Easy Steps."

First, the lawyer clearly didn't understand Twitter and how it works since using @newtgingrich is the equivalent of sending a public letter "Dear Newt Gingrich" -- which certainly wouldn't be an abuse of his name. Second, the lawyer not only didn't understand Section 230, but insisted that Tucows, the registrar behind the site that hosted the petition (and also republished the tweet) was somehow responsible for the content of the Twitter message: "continued display of the offending tweet 'can expose any and all involved parties (including Twitter, ContactPrivacy.com and/or TuCows) to substantial ongoing, and even personal liability.'" Of course, that's not even close to true. Then, on top of that, the lawyer basically tried to throw in claims on every law he could think up:

trademark infringement, violation of Gingrich's and Anuzis' publicity rights, false advertising, false designation of origin, tortious interference with prospective economic advantage and contractual relations, common law and computer trespass (could Twitter trespass upon its own computer?), conversion, traditional fraud and wire fraud, breach of contract (i.e., Twitter's terms of service), violation of the Computer Fraud and Abuse Act, and even RICO violations.

All for a Twitter message. Seriously. So, what was that about lawyers knowing better than to send bogus cease-and-desist letters?

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Filed Under: cease and desist, newt gingrich, safe harbors, twitter

53 Comments

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spaceman spiff, 20 May 2009 @ 8:01am

Lawyers who should know better
Lawyers won't "know better" regarding sending bogus C&D letters until they are hit hard in the pocketbook. There should be a statutory fine of many thou$and$ for each invalid C&D an attorney sends. A couple of those whacks upside the head will change a lot of their attitudes about this cruft!
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Avatar28, 20 May 2009 @ 8:06am

law student?
Maybe Newt has a law student working for him that sent that? I hope TuCows' lawyers got a good laugh out of it
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Anonymous Coward, 20 May 2009 @ 8:07am

lawyers dont know better maybe much of the public doesnt know better either and think like the lawyers do. law doesnt protect only from smart people it protects from the dumb and ignorant.
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Anonymous Coward, 20 May 2009 @ 8:22am

Hit in the pocketbook for sending C&D letters?

Really?

Just what authority does a C&D have? It is a person sending you a letter telling you to stop doing something. Here is a hint, ignore it. Does the letter scare you? Did it hurt your feelers? Grow a pair and ignore it or I might just have to call a Waaaaaahambulance
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Karen, 20 May 2009 @ 8:31am

Poking around, it looks like (1) the tweet in question was possibly redacted (deleted and reposted, I assume) so it's less misleading, and/or (2) the real problem is that while it said one thing, it linked to a petition for exactly the opposite.

But frankly, there's so much smoke being blown, I'm not sure what actually happened... but I think I'll fail to get *too* outraged just yet. As with the artist-sued-by-clip-art stories, I think I'd give the thing a couple days to shake out.
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bob, 20 May 2009 @ 8:36am

Newt
I do not think that Newt was directly involved with this.
Newt has said that some abridgments of free speech might be appropriate.
My hope is that he's not talking of political speech.
Though with all the screaming ninny's in the world, just about all speech is now political.
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Anonymous Coward, 20 May 2009 @ 8:40am

swing and a miss
C&Ds are probably helping the postal service. The twitter posters should send a C&D back saying that unless the intimidation and harrasment stops that it will press suit for intimidation and harrasment, both of which ARE actually illegal. Whether or no it goes anywhere it hurts him politcally which is more important. Same of party up to it's same old tricks trying to say it "gets it"
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Anonymous Coward, 20 May 2009 @ 8:41am

sorry
the above post failed for typing accuracy, I apologize.
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Anonymous Coward, 20 May 2009 @ 8:52am

So you want to protect free speech by punishing free speech?
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Anonymous Coward, 20 May 2009 @ 8:59am

"@newtgingrich is the equivalent of sending a public letter "Dear Newt Gingrich"

This is defined where? In someones mothers basement no doubt.
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Anonymous Coward, 20 May 2009 @ 9:11am

sorry old fucks + relatively new tech = comedy gold...
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Anonymous Coward, 20 May 2009 @ 9:14am

young fucks + ignorance of the law = stupid statements.
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Farrell, 20 May 2009 @ 9:25am

This is totally besides the point that Tucows is a CANADIAN company!

ttyl
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Ryan, 20 May 2009 @ 9:54am

Re:
It is the de facto equivalent of a public letter addressed to a specific person. Are you disputing this?
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hegemon13, 20 May 2009 @ 9:58am

Re:
Uh, ignorance of what law?
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Danny, 20 May 2009 @ 10:02am

Smart lawyer
"Winning" this is irrelevant. 90% of the time the threat (and cost) of litigation is enough to cause the person posting to retract their statements.

Newt Gingrich has nothing to loose. Chances are the threat will work, if it doesn't it's not like he's paying for the lawyer from his own pocket.
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Bettawrekonize, 20 May 2009 @ 10:28am

When I took my business law courses one of the main things my lawyer teachers said is that lawyers always sue everyone in sight for everything in sight. They know that most of their charges won't stick but it's just common practice for them to do so. One of the reasons for this is if that they do overlook something that they could have successfully sued for they themselves (being experts representing novices) could potentially get sued because, as lawyers, they're supposed to know what they can sue for. So they just sue for everything as a matter of brute force.
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Anonymous Coward, 20 May 2009 @ 10:33am

Ignorance of the fact that a C&D letter is just a request on you to do something. You don't have to pay any attention to it if you don't want to.

Read the letter. It states "if you don't comply, our client will consider further legal action"

If what you didn't wasn't true or against the law, then ignore it, stop crying about it being sent. Grow a pair.
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Grae (profile), 20 May 2009 @ 10:36am

Re:
My feelers are hurt pretty bad. I may not ever fully regain use of them.

Others will be sensing their surroundings, finding food, and avoiding predators at a college level while I remain forever at an eighth grade level.

:'(
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Mike (profile), 20 May 2009 @ 11:01am

Re:
Ignorance of the fact that a C&D letter is just a request on you to do something. You don't have to pay any attention to it if you don't want to.

You seem to be missing the point. The whole idea is that people will not ignore it, because they can just flip it around and make the lawyers (and their clients) look awful. Any lawyer SHOULD recognize this. The fact that they don't is quite amazing.

Read the letter. It states "if you don't comply, our client will consider further legal action"

Did anyone say otherwise?

If what you didn't wasn't true or against the law, then ignore it, stop crying about it being sent. Grow a pair.

You have totally missed the point.
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Grae (profile), 20 May 2009 @ 11:03am

Re:
Can you explain this with more detail? I'm having a hard time imagining the reality in which a lawyer must "sue for everything" or be opened to be sued themselves. It seems like judges would be fairly upset at such a practice, as it would likely waste thousands of hours of court time.
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Anonymous Coward, 20 May 2009 @ 11:07am

No Mike, I didn't, I was responding to other posters, not you.

I totally understand the point that the C&D letter can make their client look bad, I was talking to the posters that posted first here.

You know, you seem quick to jump on people who you disagree with but let slide all the folks that post incorrect things here (like poster 1).

You do this in a lot of talk of copyright issues also. Orrr, do you expect us to just ignore the comments and only respond to the article?
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OC, 20 May 2009 @ 11:43am

Don't be naive
"So, what was that about lawyers knowing better than to send bogus cease-and-desist letters?"

Mike, surely you aren't that naive? Of course they know it won't matter. There might be a handful that doesn't but the major players know this but they are of course in it for the money, just like the rest of us. If it goes any further it will buy him a new porsche.
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Anonymous Coward, 20 May 2009 @ 12:10pm

Re: Re:
"I'm having a hard time imagining the reality in which a lawyer must "sue for everything" or be opened to be sued themselves."

I think the OP is testament enough to the fact that lawyers do sue everyone that they can for everything that they can. Most of the charges get rejected of course. If you've read enough cases you'll know that many of the charges that lawyers do make get rejected and that, besides the main thing that they hopefully do expect to win, they sue for a lot of things that any novice knows they're not going to win. Certainly the lawyers know they probably won't win either, the lawyers aren't stupid.

It might very well be unlikely that not suing everyone for everything will open you up to a lawsuit (that's not the point I'm making. Then again, one can get sued for lots of bogus things but being sued successfully is a whole different issue). But overlooking something substantial can. There is also an off chance that the lawyer very well might get judgment in favor of one of their stupid claims. So why do lawyers try to sue everyone in sight for everything in sight? Do you have a better explanation? I can only think of two possible explanations.

A: To avoid potentially being sued for overlooking something (even if the chances are slim of being sued and even slimmer of being sued successfully).

B: In the off chance that they actually win one of those dubious claims (then they get more money and it's good for their reputation).

If these reasons aren't the reason then why do they do so? Do you have a better reason? I think that there is little denying that most lawyers do throw in bogus charges, go read many day to day lawsuits and see how many charges judges simply throw out.
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Anonymous Coward, 20 May 2009 @ 12:11pm

Republican Lawyers
You expected better from a Lawyer representing a Republican?
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Grae (profile), 20 May 2009 @ 12:46pm

Re: Re: Re:
So judges are okay with what is essentially frivolous lawsuit after frivolous lawsuit?
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Jason, 20 May 2009 @ 12:53pm

Re:
Coward, thanks to your comment, I decided to grow a pair of feelers. Couldn't have done it without you.
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Jason, 20 May 2009 @ 12:58pm

Re: Re: Re:
"Do you have a better reason?"

Of course, it's simple. Billable hours. They don't get paid for winning. They paid for playing.
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Jason, 20 May 2009 @ 1:02pm

Re:
Coward, may I direct your attention to the "reply to this comment" links. These are provided for your benefit so that you may distinguish replies to the article from replies to comments.

Now, it may seem confusing at first, but keep practicing and someday you'll be an intarwebs pro, too.
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Killer_Tofu (profile), 20 May 2009 @ 1:06pm

How Lawyers survive
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Killer_Tofu (profile), 20 May 2009 @ 1:07pm

How Lawyers survive
It is how lawyers survive. They try to create as much confusion about laws as possible. That way everybody needs them.
Why do you think so many things are written in legalese instead of plain english?
They exist to continue the need for their existence.

I can understand some to help people understand what comes out of congress sometimes, but that doesn't excuse the actions of many.
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Anonymous Coward, 20 May 2009 @ 1:33pm

Coward, may I direct your attention to the "reply to this comment" links. These are provided for your benefit so that you may distinguish replies to the article from replies to comments.

Yeah, that doesn't really work. But since I quoted what others had posted, I thought maybe you could figure that one out. Guess not. Mike obviously didn't or he missed my point.
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Anonymous Coward, 20 May 2009 @ 2:16pm

Re: Re: Re: Re:
I remembered this reason after posting (but I didn't want to flood the forums more than I already have). The thing about this is that many lawyers get paid by contingency, that is, they only get paid if they win as a percentage of what they win. However, I do think you make a good point and chances are that lawyers who don't get paid by contingency are more likely to file dubious claims than ones who do (but I'm sure that lawyers who get paid by contingency are also in the habit of filing dubious claims as well, even if they know they will lose).
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Grae (profile), 20 May 2009 @ 2:58pm

Re: Don't be naive
He's not being naive.

This is a follow up to Do Lawyers Know Better Than To Send Mindless Cease & Desist Letters?

Which was a response to Why Not Follow Twitter's Example on Trademark Enforcement?

Which was a response to Lesson For Companies Being Over-Aggressive In Trademark Protection: Look At Twitter

The gist of it is that Mike has asserted that lawyers appear pretty clueless in wielding the legal hammer to pound square solution pegs into round problem holes without prudence. He was challenged on this, and he is simply showing that yet again, despite what's said about how clueless or smart lawyers claim to be about using their legal tools, their actions speak louder than their words.
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Anonymous Coward, 20 May 2009 @ 4:18pm

Re: Re: Re: Re: Re:
The thing about this is that many lawyers get paid by contingency,

Some may, but most do not.
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Anonymous Coward, 20 May 2009 @ 4:19pm

Re:
This is defined where? In someones mothers basement no doubt.

Is that you, Newt?
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Anonymous Coward, 20 May 2009 @ 4:25pm

Re:
Yeah, that doesn't really work.

Strange how those "reply to this comment" links seem to work for others, isn't it? What kind of browser are you using in which those links don't work?
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Mike (profile), 20 May 2009 @ 5:05pm

Re:
Yeah, that doesn't really work.

Uh, actually the "reply to this comment" absolutely does work.

But since I quoted what others had posted,

You quoted no one.
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Mike (profile), 20 May 2009 @ 5:11pm

Re:
No Mike, I didn't, I was responding to other posters, not you.

That was not at all clear from your reply. I apologize, but others have pointed out, that's why we have a "reply to this comment" link.

You know, you seem quick to jump on people who you disagree with but let slide all the folks that post incorrect things here (like poster 1).

Not true at all. I frequently correct people who are wrong, even if I agree with the point they're trying to make. See http://www.techdirt.com/article.php?sid=20090519/1127454934&threaded=true#c249 as an example.

That said, we get over 1000 comments a day. I pick and choose who I respond to. That means trying to focus on folks who I think are making a bigger point. The random ranters (one side or the other) usually aren't worth the time.

You do this in a lot of talk of copyright issues also. Orrr, do you expect us to just ignore the comments and only respond to the article?

Again, I pick and choose what it's worth responding to personally. And to be frank, #1's post wasn't as egregious as you make i tout to be. I expect others in the comments to handle factual errors of other commenters in many cases -- but normally they make it obvious who they're responding to. I assume that top level comments (as yours was) are in reference to the article itself.
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Mike (profile), 20 May 2009 @ 5:13pm

Re: Republican Lawyers
You expected better from a Lawyer representing a Republican?

Who said anything about partisanship? I expect bad behavior from all sorts of people, no matter what their political beliefs are. I also expect good behavior from all sorts of people, no matter what their political beliefs are.

Why even bring up the party? It's a meaningless issue for something like this.
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Bettawrekonize, 20 May 2009 @ 5:24pm

Re: Re: Don't be naive
You think that these lawyers are dumber on the subject than novices? If novices like ourselves know that most of the silly, ridiculous claims they make have zero legal standing then certainly the lawyers who do it (who are not novices) know. It's these peoples job to practice law, they've gone to school for many years, I find it terribly hard to believe they know less than the average novice. They know, they're just pretending not to.
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Anonymous Coward, 20 May 2009 @ 5:33pm

Re: Re: Don't be naive
Heck, I seen an episode on the Peoples Court (they don't have many lawyer cases but in this case a lawyer was suing for his hours) where there was a lawyer who was suing for a bunch of things. He won his main case but many of the charges didn't stick. One of the charges had something to do with emotional distress or stress or some other nonsense (don't ask me how that got in there) and at one time the judge looked at him and said something like, "you know you're not going to get anything for emotional distress." The lawyer said something like, "I didn't expect to" and that he threw it in for dramatic effect or some nonsense. He knew most of his charges won't stick (he admit so), but he threw them in anyways probably by force of habit. These lawyers aren't that stupid they only pretend to be.
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Bettawrekonize, 20 May 2009 @ 5:33pm

Re: Re:
He probably made the same mistake I did, he forgot to go to threaded view
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Azrael, 21 May 2009 @ 12:58am

Re: Lawyers who should know better
No, that would be better : 3 bogus C&D letters = lose their licences for a year. And for their employer: 3 of your employees get suspended = the entire firm is closed for 3 years.
That would be a fair 3 strikes law.
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Anonymous Coward, 21 May 2009 @ 5:35am

First post:

Lawyers won't "know better" regarding sending bogus C&D letters until they are hit hard in the pocketbook.

My reply 4th post

Hit in the pocketbook for sending C&D letters?

Really?

Just what authority does a C&D have? It is a person sending you a letter telling you to stop doing something. Here is a hint, ignore it. Does the letter scare you? Did it hurt your feelers? Grow a pair and ignore it or I might just have to call a Waaaaaahambulance
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Anonymous Coward, 21 May 2009 @ 7:17am

Re:
Like this?
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Grae (profile), 21 May 2009 @ 11:27am

Re: Re: Re: Don't be naive
Yes, I do think they are dumber than novices.

Are you freaking kidding me?

Name one--just ONE--profession in the world where you would keep your job if you knew how to do it, but "just pretended not to." If I had a lawyer bill me for filing motions/charges that he knew would be smacked down by a judge that lawyer would be fired on the spot.

Your assertion that years of schooling means that someone's professional integrity cannot possibly be questioned by a "novice" is absurd.

You cannot teach common sense,
you cannot teach work ethic,
you cannot teach personal ethics.
You can teach about these things, but school cannot instill them within a person.

To summarize, if you act dumb, then you are dumb. If it really is a matter of merely "acting" dumb, then thankfully you have a very easy way to stop being dumb. If it's not acting, then your problem is a little more difficult to rememedy.
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Grae (profile), 21 May 2009 @ 11:34am

Re: Re: Re: Don't be naive
See my response to Bettawrekonize: acting stupid means you're stupid. As long as it's only an act you're blessed with a way to cure yourself, unlike genuinely stupid people.
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Anonymous Coward, 21 May 2009 @ 12:54pm

Re: Re: Re: Re: Don't be naive
Part of it might have to do with psychology. They figure, if I ask for A B and C and C is kinda absurd (but not too absurd) but A and B are reasonable and then I ask for X Y and Z, when the judge reads X Y and Z then C won't seem as unreasonable in comparison and that might increase the chances of granting C. I'm not saying I agree with this logic and I'm not saying the judge will fall for it but that won't prevent lawyers from using it.
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Anonymous Coward, 21 May 2009 @ 2:51pm

Re: Re: Republican Lawyers
Sure, and when acceptable behavior is set by "> committee, or talking heads and not by the individual (which Twitter does), the group better make sure everyone portrays themself in an individualistic manner.

To put it another way, everyone involved needs integrate acceptable behaviors that the culture brings. Lawyering is not an acceptable practice in the Twitscape.

Alternatively, it will have attendancy to make the entire effort (if indeed led by committee) appear very non-genuine.
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Anonymous Coward, 21 May 2009 @ 2:59pm

Re: Re: Re: Republican Lawyers
The link failed, Revised:
Sure, and when acceptable behavior is set by committee, or talking heads and not by the individual (which Twitter does), the group better make sure everyone portrays themself in an individualistic manner.

To put it another way, everyone involved needs integrate acceptable behaviors that the culture brings. Lawyering is not an acceptable practice in the Twitscape.

Alternatively, it will have attendancy to make the entire effort (if indeed led by committee) appear very non-genuine.

To expand slightly on this point: Twitter is a platform that enables one-to-one as well as one-to-many communication. If they feel the need to get a lawyer involved, that's the old approach and they're doing it wrong.
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Mike (profile), 22 May 2009 @ 12:16am

Re:
First post:

I honestly have no clue what you're responding to at this point. Honestly, the "reply to this comment" link is really helpful.

Use it.
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Anonymous Coward, 26 May 2009 @ 5:19pm

Join Dear Newt??
The problem with the argument that @username=Dear User is in how it was used in the post. When I have twittered and I reply to a user or direct a post to a user the @username goes at the START of the post (as "Dear User" would), so you would get "@newtgingrich Join us in signing this petition" which would transliterate to "Dear Newt, Join us in signing this petition."

Instead, what was written was "Join @newtgingrich in signing this petition" which would transliterate to "Join Dear Newt in signing this petition". I think that the intention to confuse people reading the post is fairly obvious, especially considering that it is a petition in favor of a law that Newt publicly opposes.

Now, does that make the response rational? No. Newt should have tweeted that he thought it was a bad law and that he doesn't support it and called them out on their misleading tactics publicly (as others from the left and right had done in blog posts) and moved on with his life. Responding the way he did makes him look bad, but don't defend the clearly deceptive practices of the accused tweeter.
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