Tuvell v. Marshall ⸻ Story │ Record │ Discussion
▶ At first glance, this Case Study may seem strangely out-of-place here, dealing as it does with a (State) Tort (Defamation, “CyberLibel”), rather than (Federal) Judicial Misconduct. But the singular circumstances of the case make it very suitable for our study — as an object-lesson in the closed-mindedness of (some sectors of) the American public to the taboo subject of Judicial Misconduct.
Namely, this case illustrates how difficult it is for victims of Judicial Misconduct to make their voices heard — not just in specialized courtroom settings, but in the generalized public/Internet forum of ideas/conversation/dialectic. For in this case, the Plaintiff was inexplicably/unmercifully pilloried/excoriated for merely attempting to appropriately raise a discussion of Judicial Misconduct, on a (self-professedly) well-known open-minded/open-opinion blogsite, hosted by a (self-professed) lawyer and professional legal ethicist(!). “With ‘friends’ like those, who needs ‘enemies’?”
Besides that object-lesson, this case additionally presents a rather extreme legal novelty: its resolution requires (in part) the (State) defendant/judge/jury to consider/examine/determine whether or not (Federal) Judge Casper committed Judicial Misconduct (Falsification of Facts) in the (Federal) case Tuvell v. IBM! ◀
The Defendant in this case, Jack Marshall, is a lawyer and (self-professed) professional ethicist (with special expertise in legal ethics) of long standing in Alexandria, Virginia, founder and president of a nationwide company, ProEthics Ltd. ⌥, which specializes in ethics education/training/consulting. On the side he also runs a “blogsite” (= “blog-oriented website,” where “blog” = “Internet/Web-based log of writings/opinions” (see https://en.wikipedia.org/wiki/Blog), often/typically (as here) incorporating an interactive “commentary” feature), EthicsAlarms, which (self-)professes to be “the per-eminent [sic] and most visited ethics commentary blog on the web” ⌥.
The Plaintiff, Walter Tuvell, first learned of the EthicsAlarms blogsite on Aug 2 2017, when he tripped upon it while doing some Internet research (Google search unrelated to Judicial Misconduct). Immediately attracted by the prospect of raising a serious discussion of Judicial Misconduct (closely related to judicial/legal ethics) on the blogsite, Plaintiff visited EthicsAlarms to read some of its blog posts and follow-up comments, but he was initially taken aback to observe the site seemed to be primarily concerned with partisan politics, wrapped in a thin veneer/sheen of ethics-like language (as opposed to serious whole-life ethics (legal-oriented or not), per se, as advertised on the About page ⌥); and not only that, but as a secondary observation, Plaintiff noticed that EthicsAlarms seemed to be mostly “left-to-right leaning” (as, indeed, Defendant himself observed shortly afterward, on Sep 19 ⌥). And so, uncertain that raising a non-partisan/political topic (such as Judicial Misconduct) would be welcome on the blogsite, Plaintiff postponed doing so, opting instead to settle into a routine of checking-in with EthicsAlarms occasionally, to gauge whether the political/partisan content he’d stumbled into was a permanent feature, or was a temporary aberrational deviation from the About page’s proclaimed design/intent.
After several weeks of monitoring EthicsAlarms, but seeing no let-up in its markedly political/partisan orientation (often devolving to invective/rants/name-calling, almost entirely with a right-leaning slant (except for some few commenters)), Plaintiff wrote to Defendant, privately, politely inquiring as to the accuracy of his observations (disparity between the “high-minded” About page and the “low-minded” blog/comment contents) — without judgmentality however: that is, without criticizing/complaining/accusing/condemning/reprimanding/taking-to-task the blogsite for its focus on politics/partisanship, or for “taking sides” (one way or the other, left vs. right).
And that’s when all hell broke loose, over the remarkably brief period of a mere 5 days (Sat Aug 26 – Wed Aug 30), giving rise to the Defamation case here documented. The triggering event appears to be — not Plaintiff’s inquiry per se — but Marshall’s (incorrect) characterization of Plaintiff as an “academic” (for Marshall’s views of “academics” generally, see Marshall, Anti-Academics ⌥).
Most of that story appears on the EthicsAlarms blog page for Aug 27 ⌥ itself (just the part about “Morning Ethics Warm-Up,” blog item #1, and its comments), devoted to the ensuing skirmish. But rather than tell the whole story at this point, let’s move on to the next section(s), where full details are discussed (in the Complaint and Exhibits referenced there).
End (So Far …)
Plaintiff filed Civil Action (tort) against Defendant on Sep 13 2017, alleging one count of defamation (“cyberlibel”):
- Cover Sheet.
- Complaint. ➔ Main Narrative of the case (for evidence supporting this Complaint, see the Exhibits Addendum infra).
- Certificate of Service.
- Schedule (Tracking Order).
- Proof of Service.
- Defendant’s Motion to Dismiss.
- Plaintiff’s Opposition to Motion to Dismiss.
So: this is where the case stands at the time of this writing. Updates will be posted as they occur.
Addendum: Exhibits (Evidence)
By the general (“notice” or “plausibility,” see Introduction) “pleading” rules (Massachusetts Rules of Civil Procedure (MRCP) ⌥) (see also Massachusetts Superior Court Rules (MSCR) ⌥), the Complaint (supra) only “tells the bare story,” in a short/simple/plain/concise/direct manner. However, in so-called “special matters” cases, such as defamation (and certain others, such as fraud), more definite pleading statements, with greater specificity/“particularity,” are required. But in any event, the Complaint is not permitted, by rule, to proffer actual “evidence” (nor, for that matter, any technical discussion of the law).
Thus, for the purposes of this Case Study, we provide the relevant evidence here in this Addendum (not in the Complaint itself), in the form of the following list of exhibits (notation: the “Comp ¶” citations in this section refer to the numbered/tagged paragraphs of the Complaint). Note that, due to the extremely time-compressed duration of activity in this case (only 5 days), all the interactions ever conducted between Plaintiff and Defendant (apart from the Tuvell v. Marshall suit itself, of course, discussed supra) are represented here (except for the sole missing exception reported in Comp ¶14·B).
This means: the complete story of Tuvell v. Marshall is given here (the formal/official Complaint-related items supra, together with the following list of evidentiary exhibits).
That is: what’s provided on this webpage is the whole set of claims/evidence. So you can be the judge/jury!
- EthicsAlarms, About ⌥ (Comp ¶6).
- EthicsAlarms, Concepts and Terms ⌥.
- EthicsAlarms, Comment Policies ⌥.
- EthicsAlarms, Rationalizations and Misconceptions ⌥.
- EthicsAlarms, Progressive Exodus ⌥.
- Marshall, Anti-Academics ⌥.
- Hawbecker v. Hall ⌥ (Comp ¶2ƒ1).
- Marshall visit to Boston ⌥ (Comp ¶2(i)(e)).
- Boston Business Litigation Blog ⌥ (Comp ¶2(i)(g)).
- Marshall on Massachusetts Lottery ⌥ (Comp ¶2(i)(h)).
- Marshall Against Elizabeth Warren ⌥; again ⌥ (Comp ¶2(i)(i)).
- Marshall April Fool apology ⌥ (Comp ¶16).
- Emails to Marshall, Aug 26 2017 (Comp ¶6).
- Email to Marshall, Aug 27 2017 (Comp ¶10).
- EthicsAlarms Blog page, Aug 27 2017, relevant part ⌥ (cf. Comp passim, esp. ¶14). ➔ Main Evidence (“Exhibit A”).
- Judicial Misconduct USA website (obviously).
- Email to Marshall, Clarification(s), Aug 29 2017 (Comp ¶15).
- Email to Marshall, Demand Letter, Aug 30 2017 (Comp ¶16).
(In addition to all this “admissible evidence,” one can also find a certain amount of “inadmissible hearsay” concerning Jack Marshall on the Web, but it’s inappropriate/irrelevant/useless to cite that information here.)