do we not laugh? If you poison us, do we not die?
And if you wrong us, shall we not revenge?
-- Shakespeare, The Merchant of Venice, III, i
I do not know Gerald Posner personally, but I know of him quite well. During the mid-1990s, I represented a client suing him and his publisher over an advertising campaign for his book. The title of the lawsuit was "Robert J. Groden v. Random House, Inc., The New York Times Company, and Gerald Posner." How the federal judiciary handled that lawsuit, how it departed from precedent, and how it affected the future course of the law, are the primary subjects of this blog.
It is an unpleasant story -- as difficult to write as it is to absorb -- about otherwise bright men (and women) who simply lacked the foresight to anticipate the rapid development of this new communications medium, and the consequences that it would portend. They apparently assumed that, in issuing their edicts, they could falsify the facts of the Groden case to conceal what actually occurred, guarantee the silence of the attorney who brought it by disbarring him, and continue to tout their falsehoods in a line of subsequent citations, confident in their self-delusion that they could never be brought to account. These are judges who, just as one example, thought it okay to decide an unfair competition lawsuit by pretending to be completely oblivious to the complaining party's injured products, not even deigning to mention them. They are the paragons of judicial excellence and virtue that America offers as an example to the rest of the world. Both individually and collectively, they exercised shockingly poor judgment.
This is the personal message I convey to them here and now:
When Mr. Groden's matter came before you, the judiciary of the Second Circuit at both the district and appellate court levels, the graphical World Wide Web was in its infancy, and most practicing lawyers derided the use of keyboards as secretarial work. Nevertheless, attorneys who had bothered to familiarize themselves with the rudimentary technology understood even then the potentialities that it would soon realize. Hyperlinked briefs in Adobe Acrobat format on CD-ROM discs; demonstrative exhibits on videocassettes or laser discs; and Harvard Graphics slideshows, for example, heralded the use of sophisticated multimedia in litigation. Back then, the major outlets controlled the media and we were all consumers, rather than creators, of content. There were no blogs. There was no YouTube. "Syndication" referred to TV stations running repeats of old shows that few people watched. The innovative tools with which individuals could create compelling content for large audiences would soon become available to anyone with a desktop or laptop workstation and access to a network.
I explicitly warned the courts then that, due to the timelessness of public curiosity about the Kennedy assassination, this matter could not successfully be swept into the dustbins of the federal court archives -- that it would resurface, I warned you that the true facts of that case would emerge without intermediation by the mainstream news media. These were my parting words to you then:
"Lying may be entrenched in public and private life, but it has no place in judicial decisions. The federal judiciary cannot and will not succeed in maintaining, protecting, nourishing and nurturing the lies that were told by judges in the case of Groden v. Random House. They are disproved by the facts of the documentary record, and those facts are uncontroverted and incontrovertible. They will emerge to the light of day, and when that happens, I believe that the prestige and credibility of this Court will incur damage."You ignored my warning. The meaning of this technological innovation -- the Internet -- to us is that the false judicial reports of the Groden proceedings, and the judiciary's continued reliance upon them as authority in numerous subsequent citations, cannot be maintained as viable precedents any longer. Indeed, false judicial reporting is itself an artifice doomed to extinction. The formerly untrammeled power of the federal judiciary to falsify reports of judicial proceedings with practical impunity, which is precisely what occurred in the Groden litigation, is now constrained by the presence of the World Wide Web in a way that was never possible before its advent. The threat of employing Stalinist-type disciplinary tribunals to punish attorneys for criticizing judges will be insufficient to contain exposes of intentional dishonesty, deceit, and falsehood. In due time -- not merely as a result of this blog, but cumulatively from those that already exist or are bound to follow -- as more such incidents are brought to light and lawyers are emboldened to resist, rather than meekly acquiesce, neither the organized bar nor the public will stand for such underhanded, overreaching practices. And, just as the pervasiveness of the Web has altered the ways in which the public relates to mainstream media and both the legislative and judicial branches of government, so too, it will change their relationship to the judicial branch.
In today's world, no one is immune from humiliation and disgrace. No one, no matter what his station or his claim to legitimacy, authority, and deference.
Round One was yours. You had your say, and you spread your libel. On behalf of the Government of the United States, you told the press, the Bar, and the public that the critics of the Warren Commission failed to produce any evidence of a conspiracy to kill President Kennedy, which was an absolutely intentional false misrepresentation as your own court records show, and you smeared the attorney who confronted you with that evidence while representing one of those critics. On behalf of the Government, you told the press, the Bar, and the public that the dispute over President Kennedy's assassination was essentially meaningless because it was not susceptible to factual determination. And you changed the law for the specific purposes of thwarting us from proving otherwise and defaming us. However, there has been a change in circumstances. The Web has matured, with the result that you can no longer control public perception of what has occurred in a case before you. Your dishonesty and deceit cannot withstand scrutiny. No longer may you hide like cowards from the public's gaze. Now, it is my turn to respond with the facts, using the exact same court record you strained to avoid fifteen years ago. Together, we shall see whom the public chooses to believe, whom they regard as trustworthy, and who not.
I have returned to the public forum to make good on my promise to you; to ensure public access to the honest services of their judiciary; and to make actions such as those I now perform safer for those who will follow in my wake.
Not for myself, nor for Robert Groden, but for our generation, for the afterborn, for the damage that you did to their right to know, for your sanctimony and hypocrisy, for your cronyism, for your defense of the indefensible, for your complicity in the cover-up of a horrendous crime, and for your poisoning of the judicial process . . .
. . . at long last, the time of reckoning has arrived. Prepare to be judged.
Next: Woody Allen Takes the Money Without Breaking a Sweat (introducing the New York Civil Rights Law)
Coming: How they changed the law for Robert Groden; why they found it necessary to change the law; the mechanisms they employed; the evidence they ignored; the long-term consequences; and a fundamental disagreement over the role an attorney must play in the judicial process.
