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Corrente has been operating for the last month under something of a threat, something in the nature of an implied possibility of legal action that could be taken against us, at least Lambert and myself, as the “owners and managers” of the website, for not exercising “due care,” in that we allowed one of our commentators, “Bringiton,” to publish a post, “Lies, Damnable Lies And Political Commentary,” to which one of its several subjects, Stephen Diamond, took strong exception.

Mr. Diamond is a professor of law and political science and teaches both at Santa Clara University Law School. In addition, he is a practicing labor lawyer and provides council to a variety of labor unions and associated organizations. Professor Diamond also maintains a blog,Global Labor and The Global Economy where you can find his impressive resume in the side bar.

Bringiton’s post appeared on our front page on 6/11/08. Professor Diamond published a response, on his own blog, also dated 6/11/08, which was cross-posted at No Quarter and Rezco Watch, where his work often appears.
The next day, 6/12/08, Professor Diamond sent Lambert an email requesting that we take down the offending post, the entire comment thread that it generated, any follow-up posts, and that we issue a correction and retraction. Lambert had connectivity problems for several days, and we didn’t get the email until June 15th. By that time, Professor Diamond had published the email on his own site as an update to his original response, and the email was also featured at No Quarter and Rezko Watch.

In view of its previous public circulation, we assume that Mr. Diamond will not object to our posting his original email as it arrived in Lambert’s Inbox.

UPDATE; I apologize for the failure of several links, especially those to Professor Diamond's blog. They are now fixed.

From: Stephen Diamond
Subject: Post on Lies, Damnable Lies
To: lambert_strether.corrente@yahoo.com
Date: Thursday, June 12, 2008, 7:57 PM
Dear Mr. Strether and Ms. Appet,

I am writing to you to request that you remove the post by an individual known as “Bringiton” entitled “Lies, Damnable Lies and Political Commentary” on the Correntewire.com website, together with the associated comment sections and the follow up posts by each of you. In addition, in conformance with California Civil Code Section 48a, I ask that you publish a correction and retraction.

I do not believe that you have exercised the due care that is expected of the owners and managers of a website.

I believe these posts to be defamatory of me and my professional work and of my reputation as a lawyer and a professor of law, which depends heavily on my widely established and long held reputation for veracity and accuracy.

As long as those posts remain on your site where they are accessible to the wider public, they damage my reputation and thus my ability to earn a living. The”Lies, Damnable Lies” post claims that my blog posts on Global Labor, which state that 1) there is a relationship between Senator Obama and Bill Ayers, are “unfounded accusations” and “bullshit”; 2) that I am a “demagogue”; and 3) that I have an undefined relationship to an entity Bringiton calls the “vast right wing conspiracy.”

As to the first claim, I have not “accused” anyone of anything. My statements about the relationship between Senator Obama and Mr. Ayers are factual. There is ample evidence of the longstanding relationship between the Senator and Mr. Ayers, particularly the fact that they worked closely together on the $110 million dollar Chicago Annenberg Challenge grant program as detailed on my blog, Global Labor from as early as 1995. On my blog I am fastidious about qualifying statements that are speculation or conjecture.

As to the second charge, there is no evidence provided by “Bringiton” that I am a demagogue. Nor is there any proof of the existence of a right wing conspiracy or that I am associated with it in any manner whatsoever. I have been on the left in a very public manner my entire adult life. To suggest otherwise is, as I stated, at the outset, damaging to my reputation.

While I will consider the matter settled if you remove the blog post by the end of today, I reserve my right to pursue any and all other claims against you or the website. If your site is represented by legal counsel, please refer this letter to them and provide me with their contact information. In addition, I request that you provide me with the name and contact information for Bringiton so that I may write to him or to his legal counsel.

Sincerely,

Stephen Diamond, J.D.
Associate Professor of Law
Santa Clara University School of Law

Admitted to practice in New York and California

http://www.scu.edu/law/faculty/profile/d...

In fairness to Professor Diamond, it should be noted that he does not view his email as a “threat,” according to a comment which he left at Rezko Watch in response to a post by “Pundita,” the title of which was Stephen Diamond threatens to sue Corrente

Correction: Steve Diamond writes "I did not threaten to sue, I just asked Corrente to obey the law."

I can see how he might not view his email as a threat: it is couched in the language of request, a claim of defamation, and an insistence only that he retains his right to take further action if we refuse to accede to his requests. However, it is not a small thing to ask a website to censor itself, and to suggest that failure to do so could result in legal action.

Before we go much further, let’s get some definitions straight. No one “owns” this website. It is a joint effort. The domain name is registered to me, and Lambert has taken on the responsibility of maintaining a relationship with the company that provides our server. Costs are shared, and we accept monetary contributions from our readers. We have an open policy for both posting and commenting; register and when your account is approved you can do either. Access is a privilege that can be revoked, which protects us from being overrun by trolls, but we have rarely had to revoke that privilege.

I'd like to clarify a point of contention that came up in Professor Diamond’s initial response to Bringiton's post. When Professor Diamond tried to register at Corrente so that he could join the discussion or post his own reply, there was a delay in the approval process of some hours, leading him to assume that it was some kind of deliberate attempt to keep his opinion off of Corrente. It wasn’t. Lambert was tending to his life, and registrations had backed up. We had also been having some software problems. We had no idea that Professor Diamond had attempted to register, or that he had written a response to Bringiton’s post, which had only been posted that day. We heard from the reader who had first brought our attention to Professor Diamond’s work on his blog that he had written his own post in response to Bringiton's, to which, in a separate post, we linked.

We do not pre- or post-edit the work of contributors for content. Nor are we the publishers of what gets posted to Corrente. What we offer is a community of commentary. We prefer to influence what gets posted here by our own response in comments, or in our own posts. Lambert and I were among the original quartet who started Corrente, so we are not indifferent to the issue of the quality of what gets posted here, consistent with our commitment to encouraging a genuinely free atmosphere in which readers and commentators can say what they think.

That is the context in which we considered Professor Diamond’s complaints, which we did with great seriousness, and I’m not referring only to the legal implications. We did seek and receive legal advice from several sources. As important to us was a careful consideration of our ethical obligations to Professor Diamond, as well as to our readers, to ourselves, and to Bringiton.

From our legal advisers we learned that case law favors the notion that we are not liable for what is posted to Corrente, that a website such as ours, like a discussion board, is not considered the publisher of such posts. But I have no intention of attempting to make a legal argument here. More important to us, Lambert and myself, and the rest of the Senior Fellows who post here, is our conviction that Bringiton’s post does not defame Professor Diamond. We have it on good legal authority that this is the case, but that wouldn’t be good enough for us if we didn’t believe that in a very real and practical sense, the First Amendment guarantee of freedom of speech is at stake here.

We say this with all due respect to Professor Diamond, and with appreciation for the patience he has shown in letting us have the time to consider our position. We hope, in the end, that he will agree with us.

First, let me point out that Bringiton made no negative statements about Professor Diamond’s professional status; to the degree that mention was made of his work as a teacher or a lawyer, it was complimentary. The focus of Bringiton’s analyses was a particular bit of writing that the professor had published on his own blog, which made it public and available to criticism. All of what Bringiton had to say about Diamond’s blog posts was an opinion, which is always what analysis is. Links were provided to the posts that were being discussed so that any reader could go and read what Professor Diamond had to say and make up his/her mind as to the acuity of Bringiton’s critique. In fact, many readers disagreed with Bringiton and agreed with Professor Diamond, as reflected in the long and wide-ranging comment thread the post stimulated.

It is difficult to see how even a highly negative opinion of a blogger who uses a pseudonym could damage Professor Diamond’s professional reputation, or his ability to earn a living. But even if that were some kind of remote risk, how would any critique of public writing be possible, if anyone could claim that any negative opinion expressed about a piece of such writing amounts to defamation? No doubt that is why opinion is clearly protected under the First Amendment.

With our concurrence, what Bringiton has agreed to do, if Professor Diamond desires it, is to make clear, either in a separate post, or in an update to the original post, or both, that nothing in the post should be construed as a criticism of the Professor’s professional work as a lawyer, teacher, consultant, or his performance in any other professional capacities, nor was it meant to suggest anything about Professor Diamond on a personal level.

In his email, Professor Diamond characterizes his blog posts as non-accusatory, dealing only in facts, and exhibiting a fastidious care “about qualifying statements that are speculation or conjecture.” Based on my own reading of Bringiton’s post, I dare say Bringiton would agree with that statement. Based on my own reading of Professor Diamond’s blog posts I certainly agree. His posts are filled with facts, a torrent of facts, often interesting and entirely accurate, for instance, his discussion of the American Communist Party. I would also agree that his tone is not accusatory, and that his work in the posts sighted by Bringiton contain clearly identified* speculations and conjecture. However, the conclusions that he often claims arise solely from his accumulation of facts usually imply an accusation, as, for instance, his claims about a long-standing relationship between Obama and William Ayers which has never been acknowledged by Obama or Ayers, and it was one of Bringiton’s observations in his post that the claim of a factual conclusion is often undermined by the number of conjectural and speculative assumptions upon which those so-called factual conclusions are built. In other words, Bringiton did not find Professor’s arguments compelling or convincing. Other readers may not agree and may find them entirely compelling and convincing. But the point here is that Bringiton has every right to his opinion about the persuasiveness of Professor’s Diamond’s arguments, and every right to express them in a blog post.

What of those two words, “bullshit,” and “demagogue,” that Professor Diamond highlights in his email as especially objectionable? “Bullshit,” may be hyperbolic, but hyperbole is also protected speech. In the context of Bringiton’s post, my own interpretation was that it was another word for “truthiness,” which Bringiton’s post was attempting to show was the end result of Professor Diamond’s way of arguing. No doubt, other interpretations are possible. We were not surprised that Professor Diamond doesn’t agree with Bringiton. We were surprised that the professor considered the disagreement defamatory. After all, a cogent argument was offered to support the characterization of “bullshit.” It could well be wrong, or unconvincing, but it was not plucked out of the air; it was based on a considered analysis of what Professor Diamond had written. Again, let me emphasize we are talking about one person’s opinion, not some ultimate truth, and as such, surely it is protected speech. The blogosphere is filled with such controversial opinions and pointed criticisms that could be considered professionally damaging; if they were all to be considered defamatory, there would be no blogosphere.

In fact, in Professor Diamond’s first response to the post, he made some rather broad assumptions about Corrente, and the people associated with it

If they start to foam at the mouth about you I guess what you are saying is having some kind of impact, so the lumping of my work along with others under the title of a recent blog called "Lies, Damnable Lies, and Political Commentary," should perhaps be viewed as a kind of praise.

But the fact that the site (something called Corrente - apparently run by Leah Appet, an affiliate at some recent date of an outfit known as MoveOn.org) refuses to register me in order to respond - after several attempts over a number of hours - is the sign of dirty pool. And this is combined with personal remarks about me on their blog by someone hiding behind a fictitious name. (Do the site's web masters realize, or care, that I teach at a law school?)

So instead of continuing my frustrating attempts to respond on their site, let me point out a few things about the comments today of "Bringiton" on Corrente. What we will discover is, in fact, a new form of McCarthyism entering today's political discourse, only this time from the authoritarian left.

Thus is the entire blog characterized as a part of the authoritarian left and associated with a "new McCarthyism." During the course of the post, we and Bringiton find ourselves in the company of Fidel Castro, Tom Hayden, then and now, Russian tanks entering Prague in 1968, Hugo Chavez and his “attempts to turn neighbor against neighbor in an overhaul of his intelligence services,” and so much more. It’s difficult to do justice to the wide-ranging nature of Professor Diamond’s style of argumentation, so I urge anyone who has followed me thus far, to go read his post.

It is certainly arguable that being characterized as members of the authoritarian left, as defined by Professor Diamond, could be highly damaging in any number of professional contexts, but no one at Corrente would have thought to call the post defamatory. Also, Professor Diamond writes from the assumption that Bringiton is a supporter of Obama, but, as even a cursory glance at our archives could have informed Mr. Diamond, Bringiton was a supporter of Hillary Clinton, and a skeptical critic of Obama..

As to the use of the word, “demagogue,” it is clear from the context that the word is not meant to convey any notion of personal or professional conduct on the part of Professor Diamond, not in regards to his performance in a classroom, for instance, nor as a consultant. The word is used to describe the professor’s manner of argumentation in a very specific bit of writing, about a very specific subject, to wit, the neglected (by the mainstream media) possibility that Barack Obama has been importantly influenced by a long-standing relationship with what Professor Diamond calls “the new authoritarian left.” Perhaps “demagogic” would have been a better choice of word, but to assert that the post contains no argument in support of that claim is to entirely misconstrue and mischaracterize what is going on in Bringiton’s post. That, at least, is my opinion. And it is in the nature of opinions that there can be more than one based on the same set of facts, or the same example of writing. Again, I am not arguing that anyone need agree with Bringiton’s post, I am only arguing that it is an honest opinion piece that plays well within the rules of what constitutes protected speech. As does, let me point out, Professor Diamond’s own copious posting about Barack Obama’s possible susceptibility to influences from that “new authoritarian left.” Please notice that however critical Bringiton is of the specific analysis, nowhere in the post is there any suggestion that Professor Diamond has overstepped the bounds of legally protected discourse.

All that having been said, once again, Bringiton, with our concurrence, is prepared to offer Professor Diamond an update to the post that makes clear the limited nature intended for the use of the word “demagogue.”

Finally, as to Professor Diamond’s complaint that some vague conspiratorial connection between his work and rightwing critics of Obama is being drawn by Bringiton, I think the Professor misreads the post. But that is the point about opinions, isn’t it? Two people can read the same post and come to different conclusions. But both sets of opinions and conclusions are protected speech.

In this particular case, lack of familiarity with Corrente and the nature of the concerns reflected in posts and comments during the Democratic primary may have led the professor astray. Most of the regular contributors at Corrente were Edwards’ supporters. When he dropped out, Obama did not become the second choice of most of us, Hillary Clinton did. I think I was the only Obama voter in the group. In part this happened because of the ferocity of the attacks on both Clintons, along with the recycling of so many old, previously debunked Clinton narratives on the part of both the SCLM and, to the shock and surprise of most of us, many of our brothers and sisters in the liberal blogosphere. As a result of Corrente’s resistance to this abandonment of a previously rigorous media critique, we became a haven of sorts for Hillary supporters, and many of our posts were critical of aspects of the Obama campaign, a critique that even as an Obama voter, I fully supported.

Thus the mention by Bringtiton of Professor Diamond’s link to a post by Ed Morrissey, a well-known right-wing blogger, was, I believe, meant more as a question posed to Corrente readers and commentators who have been participating in an on-going discussion of whether or not they are ready to insist on the same rigorous media critique on behalf of Barack as they were on behalf of Hillary, than as an accusation that Professor Diamond is part of the VRWC.

Bringiton also attempts in his post to show the way that a negative view of Obama traveled from a small right-wing group who called a news conference, into the pages of the Washington Post via Dana Milbank, and thence to a post by Professor Diamond. Readers can judge for themselves whether Bringiton’s argument is convincing. But surely, he has the right to make that argument.

The last reference to the VRWC is toward the end of the post and, in my view, is meant to be a satiric speculation. No one here at Corrente is claiming that Professor Diamond is anything other than what he represents himself as – a man of the left, although not, to be sure, of the new authoritarian left.

Once again, Bringiton, with our concurrence, is ready to make that clear in an update to the post, if Professor Diamond so desires.

It would have been easy enough for us to accede to Professor Diamond’s request and just take the post down. The more we considered that possibility, the more we realized that were we to do that, we might as well close down Corrente. How could we or any of our readers or commentators feel free to express an opinion after such a capitulation? Short of submitting our posts to a lawyer, how could we, or Bringiton, or anyone commit analysis to the virtual page, without having at least one eye cocked over a shoulder.

Isn’t that precisely what is meant by "a chilling effect?"

What freedom of speech requires are not monuments to the idea, what it requires are open spaces, with the farthest possible horizons and the fewest number of boundaries. What keeps freedom of speech, that lifeblood of democracy, alive and well is the practice of it.

We hope that Professor will find our offer to clarify those issues he denoted in his email sufficient to allow him to agree with us.

*Update: the word "identified" in this paragraph, which was what I meant to write, has replaced "identifiable," which was what I mistakenly typed.