And Whose Fault Was That?, or, Ignore the Streisand Effect at Your Your Client’s Peril

To review the bidding in the Dietrich matter,

  1. two teenage boys were prosecuted in juvenile court for sexually assaulting a teenage girl,
  2. the judge apparently imposed a gag order barring people — including the girl — from revealing the names of the assailants,
  3. when the assailants accepted a plea bargain, the girl was angry about what she saw as a lenient sentence and expressed her views on Twitter, including the names of the assailants,
  4. the assailants’ lawyers asked the court to hold her in contempt of court for violating the gag order,
  5. there was a great deal of public commentary (and, I think, public outrage), some of which included the names of the assailants, and
  6. the lawyers withdrew the contempt motion.

Now here’s the explanation given by one of the lawyers, from the Courier-Journal (Louisville):

David Mejia, an attorney for one of the teens, said now that the Louisville teen’s story has gone global because of a Courier-Journal article on Saturday there was no reason to continue the contempt motion.

“What could contempt do now?” Mejia said in an interview, adding that the boys names have already been circulated far beyond the original tweet. “Seems like a rather useless exercise doesn’t it?["]

Well, yes — but wasn’t it the lawyer’s own actions that dramatically increased the chances that the story would “go[] global”? (According to the story, both assailants’ lawyers asked that the girl be held in contempt.) What’s more likely to global:

  1. a story about a sexual assault victim being threatened with criminal punishment by her assailants’ lawyers for revealing the assailants’ names, or
  2. a story about a sexual assault victim revealing her assailants’ names (and even complaining about the risk that she’d be held in contempt, though I suspect that this itself reflected some earlier threats by the lawyers), and the lawyers saying “oh, of course not, we certainly aren’t going to move for contempt sanctions, and we’re sure the judge wouldn’t impose any sanctions on her own”?

To be sure, it’s possible that the teenage boys, or perhaps their parents, pushed the lawyers into this, and generally speaking it’s the lawyer’s job to do what the client asks (so long as it’s legally permissible), once the client has been counseled about the risks. Still, the lawyers are the experts in this kind of situation, and usually — especially when the client is not someone who is highly sophisticated or experienced — the lawyer’s advice is followed. So it looks like there was a pretty substantial strategic error made here, and there seems to be a high probability that it was the lawyers’.

Of course, this is all hardly new, which just makes the strategic error even more clear: This is an instance of the Streisand effect, in which an attempt to use the legal system to suppress speech just draws more attention to the speech. (The effect is named after an incident in which a privacy-minded Barbara Streisand sued trying to get an aerial photo of her mansion removed from a collection of photographs — which only led to much more public attention being drawn to that photo.) There’s a lesson there for lawyers, a lesson that is important regardless of whether you think the underlying legal claim is justified or not.

UPDATE: Funny (though obviously hyperbolic) comment, from commenter YourLittleBrother:

Should these attorneys bill their time for filing this motion? If so, to which party?