I grew up adoring Herbie the Love Bug. Herbie was the odd-car out. Short,
stubby, and, next to the Camaros and Firebirds and Chargers,
. But Herbie had a heart of gold. Despite it’s undersized engine
and buggish shell it managed to overcome and win not only the race but
our hearts and minds.
My pre-adolescent adoration spread to Volkswagen in general, who artfully
played to the counterculture crowd in the 1960s. Their VW bus actually
became a symbol of the freedom-loving hippy generation. The VW became
part of a costume – you wore the Bug or Bus like you would love
beads, tie-dye, peace symbols, sandals, a doobie and an acoustic guitar.
I didn't learn until many years later about how the VW "love bug"
sprang up during pre World War II Nazi Germany. On reflection, it made
sense for VW to reject orthodoxy and embrace the free-loving, free-speaking
ways of America’s “flower children.” Which car company
would want to be associated with the goose-stepping, iron crossed Wehrmacht?
So imagine my surprise when recently Volkswagen knocked the dust off its
old playbook and used an arm of the government to trample all over our
cherished freedom of speech.
It went like this. Simona Farrise, a tenacious litigator and fierce defender
of the justice system, was engaged in a heated trial with VW, Ford Motors,
Nissan and a few others. Her client, Richard Steiner, was dying of lung
cancer caused by exposure to asbestos.
The defense had already taken over 50 depositions and spent millions of
dollars during discovery, but that wasn't enough. VW asked the Court
to order the Farrise Firm to take down portions of their website. The
pages in question dealt with attorney Farrise’s verdicts against
other asbestos brake manufacturers in other cases dealing with other diseases.
The Court, regrettably, not only acquiesced, but went further. The Court
ordered attorney Farrise to take down her
entire website. Whoa Nellie! Isnt that a bit extreme, especially in a freedom
loving country like the US of A? I mean, haven’t good men and women
died for our right of free speech? Don't’ we decide in this
country to encourage unfettered, unlimited speech and decide later if
a line was crossed that warrants punishment?
It gets weirder. The Court had already admonished the jurors not to “google
the lawyers” or do any of their own research. And we all know that
jurors who violate such admonishments are subject to fines or jail for
contempt. Neither VW, Ford nor any other defense counsel offered any evidence
that particular jurors either had or surely would violate the “gag” rule.
Added to which there was nothing on said website that rose to the level
of false, inflammatory or prejudicial misinformation. Attorney Farrise
had simply posted her verdicts in other friction cases. The truth. The
facts. Nothing defamatory. When did telling the truth become…
Nonetheless, the Court ordered Farrise to take down its website for the
duration of the trial, which was slated to last 6-7 weeks. It must be
said that the defense lawyers were not ordered to take down their websites.
Nor was Volkswagen or Ford ordered to take down any of it’s websites.
So where are we? The matter is now before the Supreme Court of California.
This should be a no-brainer. Even a big lummox like Walter Sobchak in
“The Big Lebowski” knew that “the Supreme Court has
prior restraint…” Strategically, VW might rejoice that they
trampled on the rights of the Farrise firm. Good for you. A rag- around
that stomach punches a plaintiff lawyer is, after all, a "win."
But there’s a larger sin here. VW, like so many tyrants before, hate
a justice system in which common folks are allowed to decide the fate
of … tyrants. VW implored the Court to force a plaintiffs firm
to take down a truthful website without a shred of evidence or even
suspicion of juror misconduct. In so doing VW exposed a cynical and hostile presumption
qua jurors are untrustworthy, dishonest, and rogue.
Shame on VW! Shame on the Court for blessing such contemptible nonsense.
And high fives to Simona Farrise for taking this fight to the Supreme
Court of California, which should, as Professor Sobchack pounded home,
"roundly reject" this nasty display of prior restraint. If the
lovable Herbie knew what its brutish parent was doing today it would blow a gasket.
Ford joined in VW's motion to restrain speech.
The inflammatory content that VW and Ford wanted to suppress on the Farrise
Firm's website mentioned a verdict against Ford in two prior meso
cases. Obscene, defamatory, riot inciting hate speech? You decide.