As a lawyer, both civil and criminal, I’ll be first to admit that the law empowers me to indulge in rank and vicious intimidation of people whose words offend me if I am so inclined. I need not sue them. I need only subpoena them, demanding their appearance at some proceeding (often a deposition or a hearing) and demanding a lengthy list of documents. Will I get away with it every time? Not entirely — some targets will have the resources and sophistication to retain counsel to quash my subpoena, or at least drastically limit it. But good lawyers are very expensive. And judges, regrettably, are in my experience far too slow to sanction attorneys who impose massive burdens on third parties through subpoenas calculated to fish at best and to silence at worst. So even if I, a subpoena-wielder, am thwarted in my efforts to obtain documents, I win, because I have imposed a cost in time, money, and worry on my target.

Case in point: Virginia attorney Clifford Shoemaker’s subpoena to a blogger who criticized him.

Neurodiversity is a blog written by Kathleen Seidel, a New England parent of an autistic-spectrum child. Seidel brings rigor, thoroughness, and a scientific sensibility to her blogging on autism and disability issues. How does this earn her an attorney’s enmity? Well, as Walter Olson of Overlawyered points out, she has questioned the now-well-known and controversial litigation asserting that vaccines cause or contribute to autism. That’s a hot-button topic. A few days ago she wrote a blog post questioning recent developments in vaccine litigation. Specifically, she pointed out that prominent vaccine attorney Clifford Shoemaker (1) was making an assload of money off of vaccine litigation, (2) had incorporated the “Institute for Chronic Illnesses”, purported to engage in genuine research. She pointed to other ties between the Institute and vaccine lawyers, and drew the eminently reasonable conclusion that the Institute had powerful incentives to generate research that would support the claims of vaccine attorneys like Shoemaker.

Within hours, Shoemaker subpoenaed her.

The subpoena is extremely broad, demanding all documents (including financial records) related to the creation and operation of the website, all communications with a dizzying array of people that seems to include anyone connected to the vaccine issue, and all communications with anyone one a huge list of people who blog about autism and vaccine issues. The subpoena is not issued as part of a case against Seidel, but under the auspices of the very vaccine case Seidel blogged about.

The subpoena, in my opinion, is a regrettable example of the way the law permits unscrupulous lawyers retaliate against people who criticize their litigation tactics. Mr. Shoemaker’s subpoena — which thuggishly demands practically every record reflecting every communication Seidel has had with anyone concerning the issues she blogs about — is not only clearly intended to punish and intimidate, it has that inescapable effect. Seidel has filed a motion to quash pro se. It’s very well written and an excellent effort, but I hope that some lawyers in her jurisdiction will offer to supplement it pro bono, as her arguments would be even stronger if supported by applicable precedent (and by a strong argument for sanctions). But even if she prevails on her pro se motion, the experience will be draining, time-consuming, and stressful, and the ways of making Shoemaker pay for it are just too few and too weak in American law.

Lawyers like Mr. Shoemaker — persons for whom, for whatever reason of temperament or personality disorder are unable to endure public criticism — are becoming increasingly bold in issuing harassing subpoenas to critics. Often their justification (and I anticipate this is what we will see from Shoemaker) is the specious, circular, and speech-adverse argument that criticism reflects a dire conspiracy against them and their clients. Overlawyered has done a bang-up job of documenting this. But Seidel and the other bloggers and journalists and citizens have a clear right to criticize Shoemaker and his ilk. The law does a good job of protecting such people from criminal prosecution and a mediocre job of protecting them from civil suits (we need more anti-SLAPP statutes), but a poor job of protecting them from this particular avenue of harassment. That should change. And interested observers should do their part to impose their own informal sanctions on the Shoemakers of the world by pointing them out and decrying their unethical and censorious behavior in a clear, strong, and Google-accessible way.

Mr. Shoemaker, shame on you. You bullying is contemptible, and if there is any justice in this situation, you will get your critic-intimidating, oversensitive ass handed to you in the motion to quash.

Last 5 posts by Ken

• Like Clockwork - November 3rd, 2009
• Baaaaaaaahhhh! - November 2nd, 2009
• Monday Blawg Reviewing - November 2nd, 2009
• Facebook's Excuse: It's a Halloween Thing? - November 1st, 2009
• Well, thank you, Harvey. I prefer you, too. - November 1st, 2009