Fresh from a late night viewing of “The People v. Larry Flynt,” I noticed a Google alert, “Winemaker Sues Anonymous Commenters on Wine Blog.” A few clicks later I find out that Charles Smith of K Vintners filed a complaint and caused subpoenas to be served on Google to get the IP addresses of the anonymous commenters. But since we’ve been running around all over the city of Houston like a chicken with its head cut off attending wine and beer tastings and dinners, I didn’t have time to gather all the facts.
En route to event number 7 in as many days, I argued with Joe that this was not so much about whether Smith “had a case;” whether he could actually get IP addresses and identity of the anonymous commenters, or whether Google was even a proper party to subpoena. But the issue here, of which I had serious concern; was the potential effect of such a suit on blogs. Would they cease to issue negative reviews? Would they start writing only fluff about wines and winemakers? And would anyone who felt a blog had “libeled” him by criticizing his wines or his skill as a winemaker now feel empowered to file suit against the blog writer.
Much of it was self-serving. Because, again, whether or not the plaintiff had a snowball’s chance in Hell of winning was not the point. Because the law doesn’t matter when you’re dealing with unpaid bloggers who write for the love of the wine and the passion of sharing their knowledge with others. Let me repeat that: Who is wrong or right really doesn’t matter. This is what $60,000 in loans and 3 years of law school teaches you. It is the suit itself that matters. Whether some winemaker with hurt feelings has a case doesn’t matter. What matters is the hassle, the time and the money in responding to a frivolous lawsuit.
Because that’s what a libel law suit is really about. It is designed to punish the critic, and quash the criticism.
This morning I decided to peruse the blogosphere. And what I noticed was that while everyone en masse was writing another “He’ll never win” post; no one was providing details on what caused Mr. Smith to get his panties in a bunch. Everyone was dancing around the story. No one was writing about the substance of the complaint.
What I found was a big steaming pile of chickenshit.
And we don’t serve that here at Another Wine Blog.
Let me just say, after reading the blog post, the comments and the complaint, I can tell you Smith’s suit is not totally without merit. “John Does 1-10” cited in the complaint did besmirch Smith’s reputation in that the commenter or commenters allege that the renowned Wild Hair Jus Savant is not really the winemaker for K Vintners. Quoting from the comment on July 21, 2010:
Chuck is a lot of things…but seldom the winemaker…this is a fact. I have known him for years so I will also be anonymous. That he is highly successful speaks more about the business he is in and he knows that. He is just selling widgets to the masses in a style that makes them buy. That is the beauty of America.
This isn’t simply Larry Flynt lampooning Jerry Falwell. In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) Falwell sued (quoting the Supreme Court decision) “to recover damages for, inter alia, libel and intentional infliction of emotional distress arising from the publication of an advertisement “parody” which, among other things, portrayed respondent as having engaged in a drunken incestuous rendezvous with his mother in an outhouse.” There is a point in the movie where Flynt’s attorney, played by the talented Edward Norton asks if anyone would actually believe that Rev. Falwell (whom in later years my own father was quite often mistaken for by strangers on airplanes) actually committed incest with his mother in an outhouse. Therein was the crux of the case. You see, if no one would possibly believe the cartoon, then there could be no damage to the Reverend’s reputation.
To prove libel, you must prove malice, and intentional or reckless disregard for the truth. To boil this down, it means you knew something was a lie, and to be mean, you printed it anyway, intentionally to hurt the reputation of someone. Or you had a pretty good idea it was untrue, but didn’t care and printed it anyway.
There are several ways to defend yourself against a libel charge. If the person is a public figure, who has actively put himself in the public eye say by running for office or hosting a talk show, it’s much harder to prove malice. That’s why even though probably malicious; blatherings from a faux News Anchor about the President’s religion or his citizenship cannot be considered libelous. Because the President put himself into the limelight by the mere fact the he campaigned for and overwhelmingly won the highest office in the land.
Fair comment or opinion can be a defense. If a blogger comments that he finds a particular wine flawed or undrinkable, that’s clearly an opinion, and being offered as such. If one says, “this winemaker is an arrogant asshat” that again is opinion, and also fair comment if the winemaker has put himself out as an humble and congenial guy.
Then there is the truth. Say we dine at the New York restaurant of a 5-star chef on an evening when he is in Los Angeles. We write “Chef So-and-So obviously didn’t cook this fabulous meal, he was only the inspiration or the recipe writer.” If we could show that indeed the Chef was not in New York, we’d have the truth on our side.
Say one comments that a particular winemaker is not the only person involved in the winemaking. That he has many talented individuals working for him that contribute to the quality and success of the wine. Unless said wine is a one-man operation, the comment technically would be true. Perhaps a young winemaker compares herself to Helen Turley. And a blogger posts, “she is no Helen Turley.” Or if the bar for winemaker is set at Helen Turley, then perhaps the blogger opines about the novice, she’s no winemaker.
Now the erudite Miss Winemaker may be embarrassed. Her feelings may be hurt. She may be furious because she was disrespected in front of her peers, fans or loyal subjects. But in all probability the Court would not find find malice, nor libel.
The commenter or blogger is really only stating an opinion.
Also probably not libel in the eyes of the court.
What is puzzling here, is why Mr. Smith would feel it necessary to file suit, unless it was to quash criticism, or perhaps scare Mr. Gray who had written a less-then-charitable accounting of his visit to K Vintners. Mr. Gray depicted Smith as a cartoon character, posting unattractive pictures that compared Smith to the Japanese cartoon character pet Pikachu. Perhaps negative in some adult eyes, understandable given Mr. Gray’s self-reported affinity for Japan.
My father had a favorite phrase when we children took offense at some trivial slight; “Thou protesteth too loudly!” (My Dad was all about using King James English in his pet phrases). What he meant by this was, that if untrue, then why were we taking such issue with it? Why not just laugh it off? Turn the other cheek? Chalk it up to jealousy, or in this case, probably some disgruntled employee?
By calling such loud attention to…I mean really…blog comments; is this just a ploy for attention?
Is it generating more publicity for someone already known as a “master promoter”? It was in his venue, that we encountered Big John Bates and the lovely Tristan Risk.
Is it crying “wolf”?
Because, to me, it plants in the wine drinkers’ mind a reasonable doubt that what has been put forth as true is false, and what is accused to be false, is perhaps, indeed, true.
What do you think?
You’re no Jack Kennedy! Here’s a video where another famous guy got his feelings hurt…