Like most of the other legal gaming blogs, I occasionally find it necessary to comment on the activities of attorney Jack Thompson (as of this posting, he is still licensed in Florida). As a courtesy to another member of my profession, I will not delve into his long history with the gaming industry or the gaming community, or the series of statutes he has sponsored which have been struck down. On a basic level, I agree with him that titles with adult content should not be placed in the hands of children (I, however, disagree on the implementation and place a greater responsibility on the parents, but that is a separate matter for discussion at a later date).
However, today Jack issues this complaint, which was reposted by Kotaku. I have now forced myself to read it in its entirety, and it falls well beyond the norm of complaint drafting and more into the realm of a self-promoting tirade (not to mention the occasional typographical error, the first of which I found on page 5). While I could probably write an entire post critiquing his form and use of language, or all of the complaints he lists, I will rather focus on the specific complaint against Kotaku.
A short comment before I begin: I am not licensed in Florida, but as this is a federal claim, I feel competent to comment on it. Moreover, this is merely commentary, nothing more, and I do not claim it to be definitive, exhaustive, nor to have any actual legal effect. These are simply my observations on the matter.
Why this claim? Well, first, it's not a claim at all. Let's look at the specific statutes he references.
18 USC 241 and 242
This statute, most notably, is a criminal statute. The basic premise of criminal law is that it is not a private action. When someone violates a criminal statute, it is the job of the government to bring charges and try the suit. If you were to assault me, I could only bring a civil suit. The District Attorney (or a similar official) would have to bring criminal charges. His reference to the statute is misguided at best.
42 U.S.C. § 1983
This is a civil claim, but once again, Mr. Thompson has missed an important element of the statute: The entity must be operating under color of law or authority. Here is a lengthy article on the statute. I can see no stretch of the imagination under which Kotaku or Gawker could be viewed as operating under the color of state authority or law.
42 USC § 1985 (3)
Under Griffin v. Breckenridge, 403 U.S. 88, the bias of the conspirators must be "some racial, or perhaps otherwise class-based, invidiously discriminatory animus." Jack does not have any of these, unless he wants to claim that somehow Kotaku is discriminating against the class of people he claims to represent. Rather, I believe most reasonable jurists would see their actions as non-conspiratory (as conspiracy is an essential element) and non-discriminatory on a class level.
Section 1988 is not worth discussing, as it only allows for attorney's fees in the event of a victory. There is no substantive issue to discuss.
Conclusion
While I can't say how this case will turn out, I am at least glad that Mr. Thompson had the common sense to avoid a libel/slander claim against Kotaku, which would have likely failed as Mr. Thompson is undoubtedly a public figure. While many of these claims are relatively novel, they also seem to be relatively poorly constructed as a way to include a blog he particularly dislikes.
As a side note to anyone who wishes to pick up a cause as Mr. Thompson has:
Sensationalism will typically not yield the best results. Being reasonable and agreeable to compromise generally works much better.
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Wednesday, April 25, 2007
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7 comments:
I am glad that you took a deeper look into the issue. It's interesting to see what steps he is willing to take to get what he wants. The question that I can see is: Did Kotaku conspire with it's readers to write these things on the blog. Unfortunitly, knowing Brian, who used to write in the law sections of the Rocky Mountain Tribune, understands the law behind that and knows not to do that. I think this is another attempt to annoy people he doesn't like as he must have more time on his hands than I do.
I agree totally on the "we must not fight fire with fire" way of thinking. We need to find some level-headed, middle of the ground way to come to a mutual agreement.
Think of it as a sort of hostage negotiation sort of mentality. Even Jack Thompson can be diffused, if the correct tactics are used.
He doesn't even make a good lawyer?
I am not exactly fluent with United States law but this suit sounds quite laughable and would be fined himself if this was made in an Australian court
I think that the discriminatory basis that Thompson was alleging was probably religious discrimination, as he alleges elsewhere in his complaint, but like you said, there's no inherent private right of action in the section he cites so the point is moot.
A question for those who might know:
Does this complaint cross the boundaries of rule 11? It seems as though even the most cursory research would have shown that his complaint couldn't be sustained, or is Rule 11 not interpreted that strictly?
I'm glad to see an intelligent and thoughtful commentary about this issue. I've seen Thompson being criticized more and more in credible news outlets.
I've been following Thompson for a long time. I'm a gamer myself, and I do agree (like most gamers my age) with some of the things he has to say, mostly because I'm a psychology major and I try to follow violence issues. The problem is, he is a sensationalist with a history of simply being offensive to people he disagrees with. In turn, these are the responses he gets from the layperson. Not that that is right mind you. In one example, a gamer who agreed with him contacted him to get more information and for help understanding the issues, and he responded saying that a gamer didn't really have the I.Q. to understand anything he would say. Besides that, his actions (and sometimes his words as well) don't match what he says his goal with the gaming industry is.
I applaud you for your rational analysis of legal gaming issues. As member of the gaming community and of as one of the people concerned about violence in the media, I thank you for giving all of us a perspective that's actually helpful.
Reviewing Thompsons actual legal briefs displays exactly what Mark pointed out on a regular basis.
In a professional document, rhetoric such as "Are you kidding me?" and ".........Not!" have no place and are a sign of exactly how serious Thompson takes these issues. Regularly calling people stupid and dumb among other colorful names is the same thing. Typos... Dubious self glorifying... creative law sitation...
I will give Thompson something, his briefs are not nearly as dull as most proper legal documents prove to me.
It is my opinio that Thompson has given up on "winning the war" and his current flamboentness is a mechanism to promote his debate series, book, and television appearances. Notice how eager he is to publicly spout truly vicous and adversarial comments to the mass "gaming public" But becomes much more congenial to website and industry professionals when it comes to providing them with information and inviting them to dialogues (see his recent Jason Della Rocca intercourse wherein he offers to assist Della Rocca in finding an event agent to set up a debate between the two and only becomes confrontational when Della Rocca backs out of the debate for pay concept clearly trying to goad him into a fight.)
Thompson will not push his agenda at any cost to himself (see the recent Della Rocca engagement again) and his specialty in law is a little niche, it should come as no surprise that he is trying to make a career out of his outrageous video game industry personality.
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