Outing Atrios

October 29, 2003 3:29 PM

Donald Luskin threatens to sue and "out" blogger Atrios.Donald Luskin, right-wing blogger, has threatened to sue the enigmatic Atrios for "numerous libelous statements regarding Mr. Luskin" in a post on Atrios' blog. Particularly interesting is the threat by Luskin's attorney to use a subpoena to learn Atrios' identity -- which, as far as I know, is a pretty closely-held secret.
posted by Mid (58 comments total)

Anybody that names their blog Eschaton is automatically cool in my book.
posted by insomnyuk at 3:32 PM on October 29, 2003

So I guess being Paul Krugman's personal stalker has worn out as a way to beg for relevancy, has it?
posted by Space Coyote at 3:33 PM on October 29, 2003

I don't know a lot about the feud between these two, but I find the subpoena threat to be a low blow, likely intended to intimidate. All Luskin needs to do is serve a subpoena and file a lawsuit and Atrios will be "outed," regardless of the merits of the lawsuit.

I suppose this is a risk that Atrios runs by blogging anonymously, but, still, not cool.
posted by Mid at 3:34 PM on October 29, 2003

Damn. I thought you meant "out" as in "out as gay." In which case I'd be doing the stalking, 'cause Atrios has a sexy brain.

Still, in general, folks who engage in personally-directed critiques on the web should have the courage to be nonymous.
posted by stonerose at 3:37 PM on October 29, 2003

Beat me by 60 seconds; the already-posted warning came up on preview. ;)

This is a horrible precedent, as it's beyond a lawsuit of O'Reilly and Fox v. Groening's fame in which one wants to use the claim of infringment. Luskin would be smart enough to know libel is a tricky charge to begin with: Threatening bloggers, especially ones who make their careers out of blogging, with legal expenses for having opinions, isn't going to hold much water either in the court or the feild of public opinion. It seems pretty clear that the threat of outing Atrios is the sticking point of the issue, and what makes Luskin think he's got clout to get his demands done. I seem to recall that being called "extortion."

That in mind, Luskin is a bullying, piece of shit pansy-ass. If he wants me now, he can do a WHOIS.
posted by XQUZYPHYR at 3:38 PM on October 29, 2003

Donald Luskin is insane. I just thought I would point that out.
posted by moonbiter at 3:41 PM on October 29, 2003

XQUZYPHYR: Ostensibly, Luskin's attorney is going after the people who were commenting upon the entry and calling him a stalker. But if the readers are the ones who have made the remarks, then there's no reason to go after Atrios. In fact, as I noted in the LGF-MeFi libel thread, the law seems to acknowledge that forum operators are excluded from any libel charges. The question is who the law will see as the forum operator: Blogspot or Atrios? Even so, revealing Atrios' name could constitute an invasion of privacy, and a possible countersuit, along the lines of Jane Doe's suit against the RIAA.

And, having said all that, Luskin is an ass.
posted by ed at 3:47 PM on October 29, 2003

Is he going to sue Glenn Reynolds too?
posted by homunculus at 3:49 PM on October 29, 2003

You expect anyone to take *seriously* someone who still uses BlogSpot to host their blog...? Sheesh.
posted by davidmsc at 3:53 PM on October 29, 2003

You expect anyone to take *seriously* someone who still uses BlogSpot to host their blog...? Sheesh.

It's good enough for Dave Barry and Salam Pax.
posted by Space Coyote at 3:55 PM on October 29, 2003

Here's the Batzel v. Smith decision from the U.S. Court of Appeals, Ninth Circuit (PDF). It establishes a very clear precedent that a forum operator is not responsible. I hope Atrios doesn't cave. Since the chief allegations from attorney Jeffrey J. Upton involve how other users interpret a joke, then it seems clear to me that the law is on Atrios' side.
posted by ed at 3:58 PM on October 29, 2003

We Stalked. He Balked. Oh, the irony!
posted by moonbiter at 4:01 PM on October 29, 2003

You expect anyone to take *seriously* someone who still uses BlogSpot to host their blog...? Sheesh.

Just because they haven't sunk money into a domain name and hosting doesn't mean their words are meritless.
posted by angry modem at 4:04 PM on October 29, 2003

good catch, homonculous
posted by cell divide at 4:04 PM on October 29, 2003

was not clear if the letter was an email or actual posted letter...anything sent thru email is pure hot air and need not be dignified with response or even notice.

that said, real lawyers do not send letters threatening to sue (for one, it can be quite illegal to do so...think barratry) -- either they sue or they do not sue. lawyers that do otherwise are just asking to be disbarred...
posted by dorian at 4:06 PM on October 29, 2003

It's good enough for Dave Barry and Salam Pax.

You miss davidmsc's point. You'll need to find high-profile conservative blogspotters in order for him to take blogspot seriously.
posted by stonerose at 4:14 PM on October 29, 2003

I have never quite understood the difference between real lawyers and not-real lawyers. My divorce lawyer was real. When the court fun was finished, he suggestedwe go out for a drink. Later I discovered I got billed for his three martinis.
posted by Postroad at 4:14 PM on October 29, 2003

As moonbiter pointed out, Luskin has already admitted that he stalked Krugman. Truth is an absolute defense to a defamation claim.

Given the fact that the client has already admitted that Atrios's statement is true, I don't see how any claim against Atrios could survive a motion to dismiss. The issue, in my mind, isn't whether Atrios would win -- it's whether he wants to risk the expense and publicity of dealing with this whiner.

Dorian, I don't think there's an ethical issue for the attorney if his client could actually bring a claim against Atrios. A letter is much less expensive for everyone than filing a complaint, and courts would rather see these issues resolved informally. However, attorneys shouldn't use specious threats of litigation to intimidate people into silence. That's why the basis for this letter is perplexing and, frankly, more than a little bit disturbing.
posted by subgenius at 4:16 PM on October 29, 2003

Further, subgenius, not a single statute or code violation was in that letter. That's highly circumspect.
posted by ed at 4:19 PM on October 29, 2003

it's amazing how when the right wing runs out of, you know, ideas or facts, stuff like that (which happens an awful lot in these "there's no WMDs fucking anywhere and there's a one-dead-GI-a-day-in-Iraq" days), there's always a guy who plays Tom DeLay and decides to play a little _real_ hardball to fuck with those liberals.

Recall Atrios?
Redistrict him?
Rally your five buddies in the Supreme Court to kick his ass for good?

heh.

Atrios is way smarter than Luskin, that's for sure, and it isn't even a big accomplishment _per se_ -- sadly, almost everybody is.

but being anonymous forever on the Net if your blog becomes a popular read is -- well, you get a better chance of seeing Flipper swimming in Boston Harbor, as Teddy Kennedy would say. Just ask Salam Pax.
Sooner or later you'll get yourself a stalker or, simply, somebody who's fucking insane and willing to use a lawyer to figure out who you are.

I just hope Atrios isn't trying to stay anonymous due to contractual -- or political -- reasons. I'd hate to see him suffer or lose his/her job because of Luskin's little trick.

and if your reading this, A., I'll be happy to send out a few bucks to help out with your legal costs if bad shit will actually be coming down.

posted by matteo at 4:31 PM on October 29, 2003

Beyond being unethical, overly litigatious and lame this is also hugely hackable. If there's an anonymous person who's a borderline thorn in someones foot and if some third party doesn't like this anonymous person then it would be possible for a third party, or even the owner of the blog to falsely post under this persons pseudonym. You'd be gambling that the fear of their identity being revealed would outweigh their willingness to fight against false accusations.
posted by substrate at 4:35 PM on October 29, 2003

that's exactly what I mean, real lawyers know perfectly well about things like barratry, extortion, SLAPP, etc. whatever you want to call it.

if they know they have a decent case, they damned well go ahead and file it; if not, they generally don't.

if, however, they want to avoid misunderstanding as well as unneeded cost, sure they might try to have some sort of mediation or arbitration outside of the courts system, but they surely do not go around making baseless threats (through email no less, not even registered mail...) -- they make contact in a courteous and well-formalized manner, and attempt civil discussion.

threatening a lawsuit when you do not mean to actually go through with it, can land you in all sorts of damn-hell-ass-kings trouble.
posted by dorian at 4:36 PM on October 29, 2003

Remember kids, when a 'liberal' says it its libel and slander, when a self described conservative sys it its 'opinion'. Look at Bill o'rielly, he has no problem calling people idiots.
posted by MrLint at 4:37 PM on October 29, 2003

From letter:

"This firm represents Donald L. Luskin, a Contributing Editor to National Review Online and author and host of Poorandstupid.com, among other activities. You recently linked to Mr. Luskin’s October 7, 2003, posting on his website entitled “Face To Face With Evil,” in which he chronicles his attendance at a lecture and book signing presented by Paul Krugman. You chose the unfortunate caption “Diary of a Stalker” for your link. More importantly, your readers, in responding to your invitation to comment, have posted numerous libelous statements regarding Mr. Luskin."

I hope Krugman sues Luskin for libel first, and wins. Then on his way to jail (yes, jail) I hope Luskin steps in some dog shit.
posted by dgaicun at 4:41 PM on October 29, 2003

The lack of a reference to a statute is not that suspect, as he's alleging a common law tort. Further, this is essentially a cease-and-desist letter, the kind of which is sent all the time. It's always preferable to seek an extra-judicial resolution before filing a suit.

That being said, Donald Luskin and Jeffrey Upton are probably just trying intimidate atrios in this case. It would be unfortunate if atrios was forced to reveal his identity when he has no reason to otherwise. I'm surprised, frankly, that any decent lawyer would go along with Luskin's mad desire to pursue atrios on this.
posted by monju_bosatsu at 4:41 PM on October 29, 2003

Remember kids, when a 'liberal' says it its libel and slander, when a self described conservative sys it its 'opinion'. Look at Bill o'rielly, he has no problem calling people idiots.

Hmm?...refresh please.
posted by thomcatspike at 4:56 PM on October 29, 2003

Donald is on a crusade.
posted by moonbiter at 4:57 PM on October 29, 2003

There are definitely idiots who engage in stalking behavior on the internet, or who otherwise childishly attempt to stifle dissent by seeking or making reference to personal information, or threatening further stalking. That kind of behavior is about as cowardly as it gets. Those making such attempts invariably end up looking like the impotent fools they are.

Looks like Luskin's well down that path.
posted by fold_and_mutilate at 5:04 PM on October 29, 2003

Good god I hate the term blogger or blog.
posted by xmutex at 5:05 PM on October 29, 2003

fold_,

what you say is true -- but to a certain extent. one thing is trying to stalk the user of a discussion site just to bother him, or to find a photo of him/her just to moronically Photoshop it -- that's bad enough, childish and stupid -- but to threaten legal action in order to scare somebody who doesn't really want to give up on his anonimity status is entirely another thing
suppose Atrios' blog is a violation of a contractual agreement Atrios has with his/her employer (I know he talks about his wife in the blog, but it could be a smokescreen, and Atrios could be a woman for all I know), Luskin's sad stunt could get Atrios fired. who cares if Luskin will look like an impotent fool afterwards (he doesn't look good to begin with, so it's all downhill) if Atrios ends up unemployed?

oh, yeah, I forgot:
I also hope that Atrios' wife isn't a CIA undercover agent


posted by matteo at 5:20 PM on October 29, 2003

I also hope that Atrios' wife isn't a CIA undercover agent

If she is, outing her may violate the Patriot Act (assuming the DOJ enforces it consistently.)
posted by homunculus at 5:42 PM on October 29, 2003

Luskin and Rove can be frogmarched together... how sweet!
posted by moonbird at 5:46 PM on October 29, 2003

Good god I love xmutex.
posted by majcher at 6:19 PM on October 29, 2003

Good god I hate the term blogger or blog.

What term would you prefer to describe these things?

I know he talks about his wife in the blog, but it could be a smokescreen

I dunno - maybe I'm just gullible, but the couple of times I've seen Atrios mention "Mrs Atrios" it seemed to be sincere. Like the one about the Sam Katz people calling up and talking in her language. You'd have to believe that either a) Atrios himself is of that foreign ethnicity and created an imaginary wife or b) he made the anecdote up, or cribbed it from someone else. b) doesn't square at all with the Atrios I believe I've come to know, and a) isn't a whole lot closer.

I guess I have always gotten the impression that the guy wouldn't be willing to put the effort into some craftily created fictive identity; the casualness of his voice could be a put-on, but the frequency with which he posts and the speed with which he gets ahold of things would lead one to believe that he simply wouldn't have time to stage-manage his presentation that much.

Whatever the case is, someone should do something about this. Organize some kind of web-wide anti-Luskin blowout. Neal Pollack, where art thou?
posted by soyjoy at 7:16 PM on October 29, 2003

This is confusing. Let's review:

1. Luskin attends Krugman book signing, blogs it under the title "Face to Face With Evil".

2. Atrios blogs the Luskin entry under the "unfortunate" title "Diary of a Stalker".

3. Luskin's shysters threaten libel action, discovery motions, court dates, etc. WTF - Luskin thinks it is OK to call Krugman "evil" but it is a tort to call him a "stalker"?

4. Where is lawtalkingguy?

5. Atrios has a secret identity. Does he wear a mask, like Mr. Wrestling No. 2? Will he lose his blogging powers if his identity is exposed?

6. Aren't conservatives supposed to be for tort reform and against frivolous lawsuits?
posted by crunchburger at 7:49 PM on October 29, 2003

Perhaps I'm confused, but I swear I briefly met Atrios at some philly blog thing awhile back... Is his identity really that much of a mystery?
posted by ph00dz at 7:52 PM on October 29, 2003

ph00dz: "Perhaps I'm confused, but I swear I briefly met Atrios at some philly blog thing awhile back... Is his identity really that much of a mystery?"


INT. DARK, SMOKE-FILLED STUDY -- NIGHT

LUSKIN lights a reading lamp,
picks up a BLACK PHONE, dials a number.
Waits.
Beat.

LUSKIN

Ramon? Is this line secure? Huh, O.K.
Listen, call the guys from the Bald Man job.
Yeah, the Virginia job...
I need another stakeout. At this ph00dz
individual, run a whois or something,
he's on this MetsFilter site or something,
sounds like another commie operation.
Find out who this ph00dz person's
Philadelphia buddy is -- pronto
...
No Ramon, no, it's not a wet operation.
Not this time, I think...

Hangs up, EXITS

FADE OUT
posted by matteo at 8:10 PM on October 29, 2003

Rumor has it that Atrios is a teacher at a Philly area high school, so a (threatened) lawsuit such as this could lead to negative repercussions for his career.

I'm on the other side of the political spectrum from him and therefore not a huge fan of his politics--except for his persistent and vociferous defense of gay rights, for which he deserves much praise--but this lawsuit threat is asinine and sucky.
posted by Asparagirl at 8:44 PM on October 29, 2003

Heh. Perhaps.
posted by davidmsc at 8:48 PM on October 29, 2003

Looks to me like Luskin's attorney may be the infamous Mary Rosh. :-)
posted by nofundy at 5:03 AM on October 30, 2003

Atrios entertained the idea of attending a conference in California with other webloggers, so it's possible he's under a pseudonym by choice rather than necessity.

I'm hoping this thin-skinned dope's legal threat will help push Eschaton further up the ranks of weblogs. He's a smart and funny angry liberal, and it's a great read.
posted by rcade at 5:47 AM on October 30, 2003

I'm hoping this thin-skinned dope's legal threat will help push Eschaton further up the ranks of weblogs. He's a smart and funny angry liberal, and it's a great read.

It really is great--he almost always has interesting stuff up--the recent thing about the upcoming "withdrawal" from iraq to get bush reelected being a good example. And his "Shorter" versions of various statements and stories is usually perfect.
posted by amberglow at 5:52 AM on October 30, 2003

I emailed Upton, because I'm embarrassed that he graduated from my alma mater and still pulled this crap:

-----------------------

Subject: In re: Luskin v. Atrios from a fellow Terrier.

Mr. Upton--

While I am aware that you will not comment on pending litigation, I feel I must write to express my dismay that a graduate of my alma mater would stoop to pursuing such an indefensible legal strategy-- especially when the libel that is claimed was willingly taken up by the plaintiff a full five months prior to the libelous article by Atrios.

I refer, of course, to the "Krugman Truth Squad" column entitled "We Stalked.  He Balked." published on 7 May 2003 in the National Review Online.

http://www.nationalreview.com/nrof_luskin/truthsquad050703.asp

While I do understand an attorney's duty to represent the interests and desires of his client to the best of his ability, I also feel that Mr. Luskin-- and your firm-- both would have been better served by a simple refusal and a referral to another attorney.

I had hoped that BUSL had educated its students that well at least.

Sincerely,
Timothy Miller
CLA'91
posted by Cerebus at 6:11 AM on October 30, 2003

You expect anyone to take *seriously* someone who still uses BlogSpot to host their blog...? Sheesh.

One of the advantages of BlogSpot would be anonymity in the WHOIS registry, it being filled out to Pyra, not Atrios.
posted by XQUZYPHYR at 6:14 AM on October 30, 2003

We are talking about bloggers, right?

So will someone explain to me again why the fuck this matters in the slightest?
posted by briank at 6:41 AM on October 30, 2003

Nothing matters brian. Death is the only release.
posted by i_cola at 6:55 AM on October 30, 2003

that said, real lawyers do not send letters threatening to sue (for one, it can be quite illegal to do so...think barratry) -- either they sue or they do not sue. lawyers that do otherwise are just asking to be disbarred...

In fact, the opposite is true (in the U.S. anyway). In defamation cases, one of the key questions is whether a demand to cease and issue a retraction was issued, and if so, whether the defendant complied.

By the way, you are all way too dismissive of the merits of this type of claim. I know your dislike of Luskin is clouding your judgment, but people (especially those of you who are bloggers) need to realize that the libel and slander laws apply to communications on the internet. There is a crime called "stalking." Under nobody's version of events has Luskin come remotely close to committing that crime. If someone accuses him of stalking Krugman, it's arguable that that person has committed "slander per se," and the only question is damages. The defense that Atrios is only hosting the forum is not dispositive, since he referred to Luskin as a stalker in the title. I'd be very careful propogating the "stalker" label, as several have done in this thread and in the trackbacks.

Obviously there's a lay meaning of the word "stalker" that is broader than the criminal definition of "stalking." And that might ultimately be the difference. But I wouldn't place all my eggs in that basket. And at the very least, the lawsuit will give Luskin subpoena power. He may very well be able to determine who Atrios is, and even who the comment posters are.
posted by pardonyou? at 7:21 AM on October 30, 2003

pardonyou -

Luskin publishes commentary related to Krugman worldwide on his website. Seems to me that Luskin is at least a limited purpose public figure w/r/t discussions of Krugman and politics. This would make his case a lot tougher.

Also, hyperbole is protected by the 1st amendment. In Illinois, for example, there is the "innocent construction" rule in defamation per se cases. If the statement can be given an "innocent construction" -- i.e., one that falls outside of the per se categories, then defamation per se will not lie. Courts use this rule all the time to construe hyperbolic speech as "mere hyperbole" or "rhetorical exaggeration."

At bottom, I don't think Luskin has any chance of prevailing in a lawsuit. However, he could easily expose A's identity in a complaint and also run up serious legal fees for A. These consequences are likely more pressing on A than the legal merits.
posted by Mid at 7:30 AM on October 30, 2003

Mid, I completely agree that Luskin would have a very uphill battle to win the case, and I probably should have made that more clear. However, I don't think his case is frivolous, and as you suggest, at the very least he can make life extremely uncomfortable and expensive for Atrios.

My main point is that I don't think people truly realize the implications of internet communications. If someone is litigious enough (like, apparently, Luskin), he or she can make your life miserable.
posted by pardonyou? at 7:56 AM on October 30, 2003

He may very well be able to determine who Atrios is, and even who the comment posters are.

First part yes, second part no. HaloScan allows you to comment ad-hoc - your name and email etc. are unverifiable, which means the only thing retrievable is your IP address, which in many cases (AOL etc.) would be extremely difficult to trace to an individual computer.

Also, strict term or layman's version, I think it would be hard for Luskin to separate Atrios' use of "a stalker" in his "caption" (WTF is up with that? A caption goes with a photo, not a blog entry) and his own use of it in the headline phrase "We Stalked."
posted by soyjoy at 7:59 AM on October 30, 2003

Of course, there's a downside for Luskin: People will donate to Atrios, and there are probably attorneys who will take on the case pro bono. And discovery would probably be much more expensive (and possibly even as embarrassing) for Luskin, since his conduct is at the heart of the stalking issue. I don't see a Luskin Offense Fund materializing any time soon....
posted by subgenius at 8:02 AM on October 30, 2003

which means the only thing retrievable is your IP address, which in many cases (AOL etc.) would be extremely difficult to trace to an individual computer.

Yes, the IP address is what I was referring to. But remember that Luskin would have subpoena power to force AOL (for example) to identify the user who was assigned that IP number. Is that possible from a technical standpoint (I truly don't know...)

I don't see a Luskin Offense Fund materializing any time soon....

Certainly not from the left. But if you restrict your surfing to left-leaning sites, you'd make the mistake of assuming Luskin has no support. In fact, he's very popular among the conservative crowd (although instapundit thinks this lawsuit idea is unwise).
posted by pardonyou? at 8:19 AM on October 30, 2003

Pardonyou?, I totally appreciate the fact you see liberal bias up and down this thread. However, there's a difference between an idelological supporter and someone who will give Luskin cash money to intimidate someone who has used his own words (i.e., stalker) against him.

Despite the fact I advocate turning the means of production over to the proletariat, I wouldn't pay for Atrios to threaten a conservative blogger if the situation was reversed. YMMV.
posted by subgenius at 8:36 AM on October 30, 2003

When I started hosting online forums for my previous job we looked into the IP address question and were told that since providers such as AOL generate IPs on the fly it's extremely difficult to track down who went where when, even when a subpoena is involved. Retrieval software may have improved in the interim, though, I haven't been paying attention to it as much lately. Looks like the issue's gonna heat up now, though. Anybody around here an expert?

Also, pardonyou?, remember that even some of the most rabid anti-Atrios bloggers are seeing and declaiming the stupidity of this.
posted by soyjoy at 9:04 AM on October 30, 2003

Stupid liberals clogging up our courts with their silly lawsuits...oh, wait.
posted by Ty Webb at 9:37 AM on October 30, 2003

it's those "trial lawyers" again...
posted by xian at 12:44 PM on October 30, 2003

Tom Tomorrow is reporting that Neal told him he wanted Tuesday to be "Donald Luskin is a Stalker" day in the blogosphere. Others, Tom notes, have already agitated for tomorrow (the day, not the guy) but Neal won't be back to blogging till Monday, so we're all supposed to distort our entire lives around him.

I'm in!
posted by soyjoy at 1:26 PM on October 30, 2003

By the way, in case anyone comes back wondering what happened with this, the situation has apparently been amicably resolved.
posted by soyjoy at 9:38 AM on November 6, 2003