Ken White (2014): Science Fiction Community Generates This Weekend's Buffoonish Defamation Threat: "Sean P. Fodera is a science fiction writer who works in the publishing industry. He's angry. He started out angry over ongoing upheaval in the science fiction and fantasy literature community. That upheaval is mirrored in the gaming community and skeptic community and other communities with devoted and vocal fanbases. It's a conflict between two groups: a group that thinks the communities have a problem with racism, sexism, and harassment and should take steps to address it, and a group that thinks that the first group is engaged in free-speech-suppressing political correctness and should be resisted. A full description of the dispute would be too lengthy for this post...

...The Daily Dot published a post about this ongoing dispute, and in the course of doing so quoted and linked to some of the angrier things that Fodera said about Mary Robinette Kowal, a science fiction author and officer of the Science Fiction and Fantasy Writers of America. Kowal has spoken out against harassment in the science fiction and fantasy literature community, and SFWA is currently a locus of controversy about such allegations and the official reactions to them. In forum threads on SFF.net, Fodera complained at rather tedious length about Kowal, called her things like "incompetent," said that she agitated him in a manner he compared to how dogs agitate him, and sneered that she was a hypocrite for complaining about sexism given how she sometimes dresses:

I find it very funny and ironic that she would jump on this bandwagon. For a long time, her website featured an array of photos of her in a diaphanous white outfit, posing on a beach. No metal bikinis or such, but they were not innocuous writer headshots either. One of them, with her recumbent on the sand with legs exposed, made her somewhat attractive. I also recall she's fond of wearing tight-fitting gowns and plunging necklines when she attends cons and award ceremonies.

I'll have to add "phony" to "incompetent" and "arrogant" in the mental tags I've assigned her.

Girls give up the right to complain about sexism unless they dress conservatively. It is known.

Anyway, if Fodera was angry before, this coverage made him really angry. How dare someone quote him and link to the full quotes! He penned this threat:

I will note that since I now have the name of the writer, and I can prove that the quotes were edited to change their meaning, I have a very good case for a libel suit. I suppose no one noted that I work in the legal profession within the publishing industry, and have taught college courses on the subject.

BTW, as of now, it looks like the article was "shared" 1,200 times already. That makes each of those sharers a part to the libel, and makes each of them equally culpable in the eyes of the law. I'll speak to my attorney first thing tomorrow.

The Streisand Effect predictably ensued. Multiple people—author John Scalzi, for instance—wrote about Fodera's bumptious legal threat, and the Daily Dot article probably got several orders of magnitude more traffic than it otherwise would have.

Though Fodera works "in the legal profession" and has "taught college courses," he does not appear to have a firm grasp of the subject matter.

First, Fodera thinks that the Daily Dot article is defamatory. It isn't. The article quotes things he wrote on the internet. It links to his original text so that the readers can judge for themselves. Fodera seems to think that the Dot article wrongly paraphrases or selectively quotes him. That's a tendentious and unpersuasive reading. Take, for instance, how the Dot quoted and paraphrased him in his dog analogy:

He calls Kowal, who is a Hugo-award-winning author, "an unperson… no one you should have heard of." Then he goes on to compare her to an aggressive dog:

“Oh, I know she has no power over me. Still, I get agitated when I think about her. There was a lot of good I could have done for SFWA, and she was a primary factor in my not being able to do it… In a way, it's like my reaction to dogs… My brain kept saying 'it's a service dog; they're well-trained; he won't hurt you,' but my body wanted nothing more than to dump my bowels and flee…”

But the Dot directly links to Fodera's own words. The Dot description and partial quote is fair and accurate. And the readers can determine that for themselves by following the link.

Is it possible for misquoting someone to constitute defamation? Yes. But the bar is set very high. In Masson v. New Yorker Magazine, the United States Supreme Court examined whether fabricating quotes and attributing them to an interviewee could be defamatory. The court applied the familiar "gist" or "sting" doctrine, saying that misquotes are only "false" for defamation purposes if they materially change the meaning of the quote:

We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan, 376 U. S., at 279-280, and Gertz v. Robert Welch, Inc., supra, at 342, unless the alteration results in a material change in the meaning conveyed by the statement. The use of quotations to attribute words not in fact spoken bears in a most important way on that inquiry, but it is not dispositive in every case.

Here, the Dot has not materially changed the meaning of Fodera's words. Frankly I don't think they've changed the meaning at all. Moreover, they've linked the words so the reader can review them directly. The Supreme Court's discussion of misquotes was premised in part on the notion that the misquote misleads the reader and gives them no notice that the quote might not be exactly what the speaker said; the Dot's article serves up a way for the reader to read the underlying words if the paraphrase or partial quote interests them. Courts increasingly recognize that linking to one's sources for a challenged statement makes it less likely that it will be treated as defamatory.

Fodera's claim of defamation therefore appears specious.

Second, Fodera appears confident that if the Dot article is defamatory (and it isn't), then anyone who merely links to it is a participant in defamation. That confidence is misplaced; it's not clear whether Fodera is ignorant of the law or merely argumentative about it. While not firmly established in every jurisdiction, the emerging trend is for courts to rule that merely linking to defamatory content does not republish it for defamation purposes. Eric Goldman has good coverage of this issue.

New York, regrettably, has only a mediocre anti-SLAPP statute that wouldn't be of assistance if Fodera is foolish enough to follow up his threats with a lawsuit. But as the sad case of Rakofsky v. The Internet demonstrates, New York judges are still prepared to dismiss frivolous and censorious lawsuits. Moreover, any lawsuit would be an extinction-level event for Fodera's reputation and credibility in the publishing industry, as it ought to be. I would not hesitate to light the Popehat Signal to find pro bono assistance for anyone Fodera menaces.

It's banal to be a trash-talking blowhard on the internet. Fodera could have gotten away with that — there are so many blusterers, and so little time to care about them. But Fodera has transformed himself into something else, something more iconic: the big talker who can dish it out but can't take it. Nobody respects that person. Nobody should. Fodera strikes me as a sad and stunted person, lashing out at someone for holding a mirror up to him.

I sent Mr. Fodera an email seeking comment, and asking for responses to some specific questions, but have not heard back as of the time of this writing.


#noted

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