Two news reports today pertain to “Law and Justice,” and I think both demonstrate fundamentally absurd views of law and justice.

The first is an editorial in the New York Times criticizing Supreme Court “Justices” Scalia and Thomas for their dissenting opinion in the case In Re Troy Anthony Davis, arguing that not only is it permissible, but legally required, that we execute an innocent person. (There is also a NY Times news article about the case.)  These two “justices” argued, in part, that a federal law should preclude an innocent death-row inmate from being allowed to present proof of innocence — and that it is constitutionally permissible to execute an innocent person.

The second issue was also widely reported (in many media outlets, including CNN, NPR, CNET, and the New York Post): New York Judge Joan Madden ordered Google to reveal the identity of an anonymous blogger who offended a model by describing her as “whoring,” “lying,” and “skanky.” (You might also wish to read a vivid account of the March court hearing here.)

This is a fascinating case because it illustrates some mistakes that lawyers and judges make.

• First, of course, model Liskula Cohen made a huge mistake when she hired Steven Wagner as her attorney. It’s hard to imagine any competent attorney advising a client to file suit against an anonymous blogger whose insults were visible to only a handful of people on a single day, knowing that the litigation would result in vast re-publication of the insults, and guarantee that news headlines would (quite properly) refer to Ms. Cohen as the “Skank Model.”  This case should never have been filed; the only “justification” for litigating this is to generate publicity for Ms. Cohen’s lagging modeling career (which would be an improper abuse of the courts).
• Second, the judge made a mistake (perhaps acting in a “legally correct, but unjust” way) by concluding that obviously-absurd comments about the sexual experience of a 37-year-old fashion model could potentially create a valid claim for defamation.  I can’t find a complete copy of the offensive post, but news accounts report that the blog described Ms. Cohen as the “Skankiest in NYC” and as a “psychotic, lying, whoring … skank.”  What I find absurd is that Ms. Cohen (or anyone else) could believe that the blogger’s statements were “factual” in nature. They are insults, and nothing more; nobody would believe that the anonymous blogger actually knew anything about Ms. Cohen’s sexual history.  Even if Ms. Cohen asserted that she was a virgin desparately concerned about her moral reputation, there would be no defamation case here; since she has now publicly described herself as a “serial monogamist,” it’s even harder to understand her objection to the hyperbolae in the anonymous blog posts.

If I focused exclusively on the legal issue here, I might conclude that Judge Madden’s ruling was correct, but Judge Madden clearly understood that this case raised serious First Amendment issues, and that anonymous speech is actually constitutionally protected.  Accordingly, I believe that her ruling was not just “wrong,” but “unjust and immoral.” I hope that the anonymous blogger finds support to appeal this incorrect ruling.

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