One of the rumors that is currently making the rounds on celebrity gossip sites is that Jennifer Lopez's ex-beaux Beau Casper Smart enjoyed two trysts with transgender individuals. As someone with a functioning brain, this does not interest me in the slightest.
What does interest me is free speech on the Internet and defamation. And when a notorious gossip site, TheDirty.com, received a threatening letter regarding a user-submitted rumor about Mr. Smart, the site's response letter was at the top of my reading list. Fortunately, it didn't disappoint, and it provides further proof that (a) the Communications Decency Act (Section 230) needs to be part of every torts class and (b) some lawyers are really, really bad at writing 'F U' letters.
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Grading the Original Letter: D-
Though we only have snippets of the original letter from Ms. Cris Armenta, Esq., the parts that were mocked by TheDirty's counsel highlight a few glaring screw-ups.
For one, the letter was addressed to "Hooman Karamian," and the salutation was "Dear Mr. Hooman." This may be a bit nitpicky, but as his counsel points out, TheDirty.com founder's legal name is Nik Lamas-Richie. Also, starting a letter with "Dear Mr. [First Name]" is a bit too informal, isn't it?
Next, there was this excerpt, again mocked in the response letter:
"We are well aware that this is not the first time that you been [sic] revealed to have made false and defamatory statements ... "
Okay, there's no way Microsoft Word would've missed that grammatical error. Proofread your letters before sending, especially if they are directed at a pseudo-celebrity -- there's no way that this letter was not going to end up on TMZ.
Finally, and most importantly, you've got to understand law before threatening to use it. Ms. Armenta cited the infamous Sarah Jones lawsuit as part of her threat. Basically, a district court issued one of the worst decisions we've ever seen and held TheDirty.com liable for a user-submitted gossip nugget. At the time Ms. Armenta sent her letter, the appeal was pending, though earlier this week, the Sixth Circuit reversed. To anyone paying attention, however, that reversal was a foregone conclusion.
More importantly, and again, credit here goes to Mr. David Gingras, Mr. Ritchie's attorney, but in her own district, the Central District of California, the law is established: the CDA is a shield against defamation claims brought as a result of user-submitted content. Heck, that's pretty much been established everywhere, except that one lonely Kentucky court.
In short: proofread and cite good law. She gets a D-, with bonus points for zealous representation and for us not having the full letter.
Grading the Response: A
Mr. Gingras didn't just stoop to taking a red pen to Ms. Armenta's letter -- he also provided a sarcastic, rodeo-themed treatise on the state of the law: the CDA is a shield, so if you must sue, target the sources themselves (two transgender individuals who claimed to have relations with Mr. Smart). Also, should the rumors prove false, and were the CDA not to exist, there's still an actual malice standard to contend with, since Mr. Smart is a public figure.
As for style-points, in reference to Ms. Armenta's phrasing "not your first time at the defamation rodeo," Mr. Gingras peppered the letter with reverences to rodeos, cowgirls, and of course, a cute little cowgirl clipart affixed next to his signature.
Well played. Style, substance, and clip art nets an A.
- Amici Tech Giants Raise Stakes in TheDirty v. Cheerleader Case (FindLaw's Sixth Circuit Blog)
- Understanding the Legal Issues for Social Networking Sites and Their Users(FindLaw's Legal Technology Center)
- The 'F U' Response Letter: Two Examples for Inspiration (FindLaw's Strategist Blog)