[See also Least restrictive means analysis , and compare Conduct ]

Original source: http://legalminds.lp.findlaw.com/list/cyberia-l/msg19185.html

Subject: Re: Bozofilters
From: "Peter D. Junger" <junger@SAMSARA.LAW.CWRU.EDU>
Date: 4 Jun 1999 11:21:20 -0000

Mike Godwin writes:

: Indeed, one of the reasons I've been successful in my work over the last
: nine years has been my absolute insistence on refusing to lie to the press
: and to the public -- this is what gave me the credibility I needed to
: discredit Time and Marty Rimm when the time came. (I explain this approach
: to public affairs at length in my book, by the way.)
: This does not mean that I've never made mistakes or mispoken or said
: something that turned out to be factually incorrect, of course. I'm only
: human, after all.
: But if someone has a good argument for me to try to engage in a
: conversation with people who shout "Liar!" in my face at every opportunity,
: I would be interested in hearing it. In the meantime, filtering such people
: out altogether seems to me to be the most civil -- and even the most humane
: -- solution.

As I recall the great war, one of the most striking features was that those who were angry with Mike Godwin---those who claimed that he was lying and who made that claim with, I am sure, utter sincerity---were not lawyers.

Mike now admits that EFF came close to supporting censorware, but at the time he was not prepared to admit that point, especially to people who did not appreciate his contribution to the victory over the CDA as much as he did and to people who were already concerned with the next battle while he wanted to bask in the glory of having won the last one. (One of those whom Mike most unkindly attacked was an Australian who could see what was coming in Australia where there is no First Amendment and who was thus naturally unappreciative of any argument that seemed to favor censorware or so-called ``voluntary'' rating systems.) No lawyer on the lists where the great war was fought ever claimed that Mike was lying as far as I can recall. If his opponents made a strong argument his normal response was to ignore it and to attack some hypothetical argument that was never made---such as the argument that all filtering programs, including kill-files and what are now apparently called bozo-filters that are used by private individuals, are bad. In general Mike acted like a trial lawyer at a deposition where there was no judge to keep him in line. He was rude, asked misleading questions, mischaracterized what his opponents were saying, and generally acted like a bully, but he did not lie. But I am sure the continual mischaracterization of their position did sound like lies to his opponents, rather than like the sort of court-room tactics that most---I hope---lawyers would consider uncalled for in an academic discussion of political and legal issues, issues that were, and are, to those who believe in free speech of the utmost importance.

Now the really sad thing is that when Mike's opponents, not understanding that a lawyer doesn't think that he is lying when he insists on responding to an argument that his opponents did not make and repeatedly denied ever making, called him a liar, he totally lost control. I don't think that that would have happened if they had just called Mike a lawyer.

I don't know what Mike would have done if they had just pointed out that it is conduct like Mike's that makes us lawyers so unpopular with those who cannot tell a lie from a misleading characterization of an argument.

-- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu
NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists