alt.education

Cyber-Slapp

By JAMES TARANTO

Kathleen Seidel is a New Hampshire mother of two.
She runs a blog, Neurodiversity.com, about autism--
a topic of special interest to her as one of her
children had an "autistic spectrum diagnosis." There
is a theory that thimerosal, a preservative formerly
used in vaccines, causes autism. Seidel has written
skeptically of that theory, and of the trial lawyers who
have sought to cash in on it.

Last month one of those lawyers, Clifford Shoemaker,
had Seidel served with a subpoena demanding that she
report for a deposition and produce a voluminous
collection of documents, described in her motion to
quash the subpoena:

The subpoena commands production of "all
documents pertaining to the setup, financing, running,
research, maintaining the website
http://www.neurodiversity.com" - including but not
limited to material mentioning the plaintiffs--and the
names of all persons "helping, paying or facilitating
in any fashion" my endeavors. The subpoena demands
bank statements, cancelled checks, donation records,
tax returns, Freedom of Information Act requests,
LexisNexis(R) and PACER usage records. The
subpoena demands copies of all of my
communications concerning any issue which is
included on my website, including communications
with representatives of the federal government, the
pharmaceutical industry, advocacy groups,
non-governmental organizations, political action
groups, profit or non-profit entities, journals, editorial
boards, scientific boards, academic boards, medical
licensing boards, any "religious groups (Muslim or
otherwise), or individuals with religious affiliations,"
and any other "concerned individuals."

Seidel asserts that she has no connection to any of
the parties in the case:

The subpoena was not issued in good faith because
its manifest purpose is not to elicit information
relevant to determining Bayer's liability for Wesley
Sykes' [the plaintiffs' son] medical and
developmental problems, but to indulge his parents'
and their attorney's curiosity about my motivations
and associations; to aggressively communicate their
suspicion that I am not merely a fellow citizen who
openly, intelligently and conscientiously disagrees
with their public statements and actions, but a covert
agent of the government, the pharmaceutical industry,
or some other hidden force; to disrupt my
relationships with my associates and news sources;
and to intimidate, harass and retaliate against me for
exercising my constitutional right to report and
express opinions about matters of widespread public
interest in which plaintiffs and plaintiffs' counsel are
involved. These are not legitimate reasons to invoke
the judicial subpoena power. Indeed, in so doing, Mr.
Shoemaker has engaged in a sanctionable abuse of
his authority as an officer of the court.

Seidel's response raises some tricky legal questions--
for instance, whether independent bloggers have the
same legal privileges as journalists (privileges that, at
least in federal court, rest on fairly shaky ground to
begin with).

Assuming that Seidel's representations are accurate,
this is a classic Slapp, an acronym for "strategic
lawsuit against public participation." Such legal
actions may become more common as citizens
increasingly participate in public debates by way of
blogs and other Web media.

From reading Seidel's brief, it is clear that she is
either savvy or well-advised about the law. But many
bloggers probably aren't, and would be intimidated
into silence by such an effort. It might behoove the
ACLU, or some organization devoted to civil liberties,
to devote some resources to figuring out how to
defend speech that is inconvenient to plaintiffs lawyers.