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Is Merely Explaining The Streisand Effect To Someone A 'Threat'?

from the paranoid-much? dept

Mon, Apr 20th 2015 12:33pm — Mike Masnick

Ken White, over at Popehat, has a story on the ridiculous situation concerning how lawyer/psychotherapist Jose Arcaya is going after lawyer Scott Greenfield (whose work we often mention around these parts). The history of how it got this far is a bit convoluted, and you can read the full Popehat post for the details, but here's my shortened version: An apparently unsatisfied former client of Arcaya left a negative review of Arcaya on Yelp. Arcaya sued for defamation, arguing that being called "absolute scum" is not merely an opinion because of the use of the word "total" (which as far as I can tell is not actually used in the review -- though perhaps he means "absolute" or perhaps something was edited. Also, for the record, the review appears to call him "absolute scum" not "absolute scum bag" though I doubt the difference matters):

Regarding the matter of whether "absolute scum bag" should be deemed defamation per se rests with the present court. Mr. Boka tTots out a series of cases indicating the word "scum" and "scum bag" do not fall in that category. However, by adding the word "total" he impugns everything about me, including character and capacity to carry-out legal work. It coincides well with the Dillon standard of defamatjon per se: a maliciously intended attack on my professional capabilities, an all encompassing put-down (i.e., "absolute scum", not just "scum bag" Or "scum")...

Anyway, the former Arcaya client reached out to White, who in turn reached out to Greenfield. Greenfield then reached out to Arcaya, trying to explain to him, nicely, that suing over someone calling you "absolute scum" on Yelp is probably not a productive venture and might -- just possibly -- backfire, thanks to a little thing called the Streisand Effect. About five or six years ago, a lawyer had told me that the Streisand Effect was losing its power because lawyers now recognized it. And yet, we keep discovering new lawyers who have no idea about it at all.

Now, some might take this as a friendly bit of advice about how a course of action could potentially backfire once it is revealed to the public. But Arcaya, apparently, took Greenfield's explanation of how the Streisand Effect works... and claimed that it was Greenfield threatening him with the Streisand Effect. In response, Arcaya subpoenaed Greenfield and defended this move by apparently arguing that Greenfield was somehow threatening him in describing how the Streisand Effect tends to work, and claiming that Greenfield was somehow associated with "an illegal gang."

Again, while I have no evidence that he was part of that illegal gang, as a lawyer Greenfield still should not have served as a conduit for that criminal enterprise. Rather than calling me Greenfield should have contact [sic] the Attorney General's office or the police to denounce what he had learned. Because of his failure to uphold the principle of propriety as a server of the law, I lodged a complaint the [sic] First Department's Discipline Committee.

Oh, right. Beyond just issuing the subpoena, Arcaya filed a wonderfully handwritten bar complaint against Greenfield -- for daring to explain a basic online phenomenon. Wow.

What's amazing is how frequently we've seen this kind of reaction. From Charles Carreon to Prenda Law, those who find themselves faced with the public reacting negatively to their own lawyerly overreactions assume that "the public" speaking out is some sort of "illegal gang" out to get them. They don't realize that it's not about them (at all), but rather the public exercising its free speech rights to criticize what the public believes is an abuse of power.

Either way, the idea that merely explaining the Streisand Effect to a lawyer who was about to step right into it is some sort of threat concerning a "criminal gang" that somehow violates proper lawyerly activities is so ridiculously laughable, that I'd argue it's even more ridiculous than flipping out and suing over someone calling you "absolute scum."

ArcayaPartialFiling (PDF)ArcayaPartialFiling (Text)

DepositionSubpoena (PDF)DepositionSubpoena (Text)

Veryveryangry (PDF)Veryveryangry (Text)

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Filed Under: defamation, free speech, jose arcaya, ken white, scott greenfield, slapp, streisand effect
Companies: yelp

42 Comments

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Michael, 20 Apr 2015 @ 12:43pm

Again, while I have no evidence that he was part of that illegal gang, as a lawyer Greenfield still should not have served as a conduit for that criminal enterprise

So he thinks "The Streisand Effect" is some kind of criminal gang? If it were, I'm pretty sure the internet would have already shamed them into changing their name to something a little more manly. I could see that name for a boy band, but I'm pretty sure a band using that name would end up causing some kind of infinite loop of legal irony.
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alanbleiweiss (profile), 20 Apr 2015 @ 12:46pm

butt-hurt attorneys. Fueling the Streisand effect is really an art form for them.
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Anonymous Coward, 20 Apr 2015 @ 12:51pm

I read the title for this article and felt threatened!
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Anonymous Coward, 20 Apr 2015 @ 12:59pm

When you are paranoid and think that the whole world is organized in a gang that is out to get you, the Streisand effect proves you were right all along.
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Spaceman Spiff (profile), 20 Apr 2015 @ 1:03pm

An explanation is in order
Since you invented the term Mike, perhaps you should be so good as to explain what it is to Arcaya, and that it is too late anyway to stop it from turning him into the toasty turd that he is already!
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Anonymous Coward, 20 Apr 2015 @ 1:07pm

Another failure...
It clearly states on that form: "PLEASE PRINT LEGIBLY OR TYPE IN ENGLISH"...

However, the handwriting is hardly legible.

If I was a judge, I'd throw that out on the basis of not following directions
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Anonymous Coward, 20 Apr 2015 @ 1:07pm

For someone so concerned about defamation, you'd think he would be less eager to imply that an attorney is part of an "illegal gang" based on zero evidence.
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Anonymous Coward, 20 Apr 2015 @ 1:07pm

Sigh
Why does no one ever learn?
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Anonymous Coward, 20 Apr 2015 @ 1:09pm

Wow
Mike's part of an illegal gang? What's more, he created it? What madness is this?
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PRMan, 20 Apr 2015 @ 1:09pm

lawyer/psychotherapist
lawyer/psychotherapist...

Explains a lot...
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Anonymous Coward, 20 Apr 2015 @ 1:11pm

When Jose Arcaya is finally hit by the Streisand Effect, who wants to bet that he tries to send some kind of legal threat to Ms Streisand telling her to immediately call off her gang?
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Anonymous Coward, 20 Apr 2015 @ 1:23pm

26 people have marked that review as "useful"...
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Anonymous Coward, 20 Apr 2015 @ 1:26pm

Re:
What do you mean finally hit, it has happened he has appeared on it spiritual home.
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Anonymous Coward, 20 Apr 2015 @ 1:31pm

Re: Re:
Rather, when it hits him. When he feels the effects.
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connermac725 (profile), 20 Apr 2015 @ 1:49pm

Warnings do work on Idiots
hey look there its a pile of shit "don't step in in"
to which the warned party stomps in it repeatedly then blmaes the person who warned him.
NOT really very good lawyers are they
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Anonymous Coward, 20 Apr 2015 @ 2:15pm

Dear Arcaya,

Miss Streisand has a song that you can't refuse.

The Internet.
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That One Guy (profile), 20 Apr 2015 @ 2:27pm

Re:
Yeah, I found that rather striking, and hypocritical, myself. Calling someone 'scum' is defamatory, but implying that someone is a member of an illegal gang isn't?
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sigalrm (profile), 20 Apr 2015 @ 2:53pm

Re: Re:
Actually, I think it's a little more nuanced than that:

It's (apparently) ok to call someone scum. It only turns defamatory when you preface it with an absolute, like "total scum", or "complete scum", thereby omitting the possibility that the defamed individual might be a quasi, hybrid, or otherwise partial scum. A possible example might be an incompetent scum.

By this logic, it's not defamatory because he only stated that Greenfield is a member of an illegal gang, not a "complete" or "total" member of an illegal gang....
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radarmonkey (profile), 20 Apr 2015 @ 2:53pm

Degrees of Scum
This really seems like a updating of the the Churchill quip:
Churchill: "Madam, would you sleep with me for five million pounds?"

Socialite: "My goodness, Mr. Churchill... Well, I suppose... we would have to discuss terms, of course... "

Churchill: "Would you sleep with me for five pounds?"

Socialite: "Mr. Churchill, what kind of woman do you think I am?!"

Churchill: "Madam, we've already established that. Now we are haggling about the price”
Arcaya seems fine with being called a scum ... he just seems to not like the level of scum he's being called.
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That Anonymous Coward (profile), 20 Apr 2015 @ 3:24pm

the stupid it burns
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Blackfiredragon13 (profile), 20 Apr 2015 @ 3:44pm

Re: Wow
Great now you likely just gave anti-TD and out of the blue accusations to hurl at mike.
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Jake, 20 Apr 2015 @ 4:43pm

"Lawyer/psychotherapist"? Really? I don't know about New York State, but around here I'm pretty sure 'psychotherapist' is one of those job titles you don't get to use unless you've spent a certain amount of time in medical school. Doing that while simultaneously studying for your bar exam strikes me as a recipe for being mediocre at both. And I do not even want to contemplate the procedural and conflict-of-interest questions that arise from someone acting as both therapist and attorney for a client.

Also, is it just me or is putting "PHD" after your name without specifying what it's a PHD in usually a bad sign?
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Anonymous Anonymous Coward, 20 Apr 2015 @ 5:15pm

The totality of it all
I really wanted to call him a total scumbagel. But after reading the article and comments I now understand how total might be misinterpreted. So now he is partly a scumbagel and partly the stuff I scrape off my shoe after stepping in dog excrement.

The 'him' is up for grabs, use a Ouija board.
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madasahatter (profile), 20 Apr 2015 @ 6:33pm

Re: An explanation is in order
It's more fun to watch the effect unfold and take no prisoners.
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madasahatter (profile), 20 Apr 2015 @ 6:33pm

Re: An explanation is in order
It's more fun to watch the effect unfold and take no prisoners.
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Anonymous Coward, 20 Apr 2015 @ 7:08pm

wow
geez did he write that letter after ingesting liquid dubstep?
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Noah Callaway, 20 Apr 2015 @ 7:36pm

The Power of Streisand Grows
"About five or six years ago, a lawyer had told me that the Streisand Effect was losing its power because lawyers now recognized it"

This seems to me like the Streisand Effect gaining power. It is causing lawyer's to curtail their awful behavior before they do stupid things, instead of after doing them.
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Padpaw (profile), 20 Apr 2015 @ 8:02pm

what law school is creating all these lawyers that have no idea how the law works?
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Joe K, 20 Apr 2015 @ 11:41pm

*curses*. foiled again.

Is Merely Explaining The Streisand Effect To Someone A 'Threat'?

only if you simultaneously stroke the cat that lies across your lap.
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Anonymous Coward, 21 Apr 2015 @ 3:05am

Re: Re: Re:
Like almost, but not quite, entirely unlike scum?
Or maybe quite the opposite? Hmmmm...
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cubicleslave (profile), 21 Apr 2015 @ 6:03am

Re: Wow
If Mike is the ringleader of an alleged "illegal gang", then I say we need shirts! After all, most gangs wear some identifying colors, right?
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tqk (profile), 21 Apr 2015 @ 7:21am

Re: Re: Wow
TD sells t-shirts, you know? A few pages down from the top, "Support TechDirt - get great stuff", Insider Shop, TechDirt Gear, Perks and More. I wonder if there's a "Streisand Effect Cabal" shirt.
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Dirkmaster (profile), 21 Apr 2015 @ 7:44am

What this actually reveals
I would never hire this guy, not because of anything he has done, but because what he DIDN'T do. Aren't lawyers supposed to do research? I mean, multiple hundreds of dollars an hour research. Clearly this fellow's research isn't work a tinker's damn.
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Lord_Unseen (profile), 21 Apr 2015 @ 7:48am

Re: *curses*. foiled again.
"Do you expect me to feel threatened?"
"No, but you probably will anyway."

Hmmm... Doesn't seem to have quite the same punch to it.
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Nick (profile), 21 Apr 2015 @ 8:47am

new term?
I think this calls for a new term: The Streisand Paradox. Anyone naïve enough to incur the wrath of SE and is either unaware of SE or unable to conceptualize it without its history or name might take its expiation as a threat. So, do you explain it to would-be victims or just let the Effect play out to let them understand, first hand, its sheer power?
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Anonymous Coward, 21 Apr 2015 @ 10:54am

This is neither here nor there, but saying that the Streisand Effect "was losing its power" because lawyers recognize it is like saying gravity is losing its hold on us because no one is jumping off bridges.

The fact that people wisely decline to test the force does not unmake it.
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DNY (profile), 21 Apr 2015 @ 12:46pm

A pet peeve
Does anyone else feel that the use of the phrase "reached out to" to mean "e-mailed" or "sent a letter to" is like fingernails on a blackboard?

I have never seen it used so often in succession as in this article. I can't stand it! It makes every relationship, even that of plaintiff and defendant, sound like something out of Rogerian psychotherapy!
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Coyoty (profile), 21 Apr 2015 @ 9:21pm

I want to sue my parents for warning me against touching a hot stove. Clearly they were allied with the stove with the intention of causing me harm, which was borne out when I touched the stove and it burned me. I believe they also conspired with the cat to have me scratched when I pulled its tail. I question whether the cat would have considered that action without my parents suggesting it.
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Pragmatic, 22 Apr 2015 @ 2:32am

Re: Sigh
They probably think they're the exception to the rule?
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Nah, 29 May 2015 @ 8:31am

A motion to dismiss this case has been filed; in reply, Arcaya argued that the case was frivolous and that he didn't understand it. These are unwise from an ethics standpoint.
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Trialia, 18 Aug 2015 @ 3:23pm

...Oh ye gods...
...and little fishes. Seriously.

Quite apart from Arcaya's sheer, astounding level of ignorance about both the ways in which the internet and online communities work, and the incoherence of his self-composed "legal documents, I have to look at his paperwork and wonder honestly whether Arcaya has a secretary or anyone in that role. I sincerely doubt it. Many of his sentences are visibly missing words, to the point where they barely make a lick of sense!

He's missing half the single-syllable words in his phrases, such as "to", "went", "wait", "way", "in", "my" and others, and his punctuation has clearly had a spellcheck run on it but nothing more, as he's missing the possessive from several names (i.e. Boka rather than Boka's when he clearly means the latter) along with a failure to close punctuation marks on several phrases where he's attempted to use them.

I wouldn't be surprised, given his name, if English is not his first language. In which case he'd have done even better to hire someone to make sure his legal documents were coherent, and maybe they'd have been able to point out the ridiculousness of his last few paragraphs!
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Got none, 26 Aug 2015 @ 3:59pm

Re: ...Oh ye gods...
he has two offices, one in westchester and one in Manhattan. The city office is a one man show. He's from South America but has been here long enough to be coherent in English. I think he's just OUTRAGED at the INJUSTICE OF IT ALL.
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