Testicular Fortitude and Free Speech

Among various iterations, The Urban Dictionary defines “Testicular fortitude” as:

“A more academic English translation of the Spanish word “cojones”, that originally stood for testicles, two spheric glands part of the reproductive system of males, also commonly known as balls.To have testicular fortitude is to show strength, courage and sagacity in challenging situations. The story of how strength and courage is related to two nuts encased in shriveled skin hanging from between a man’s legs is a fascinating story that i don’t have the time to go into right now.

You can’t win with reserve and lassitude
And you can’t face the unforgiving multitude
Without the manly trait of testicular fortitude”

Strength. Courage. Sagacity. Principled words or words about principles.

Some will be amused (and likely others disgusted) by a recent story circulating the blawgosphere about freedom of speech and the aforementioned male genitalia. In a piece entitled Is A Ban on ‘Truck Nuts’ Unconstitutional? Elie Mystal at Above The Law reports on a  a South Carolina woman  given a $445 ticket for her truck’s nuts. Mystal writes,

So, for those playing along at home, South Carolina will defend to the death your right to display the Confederate Flag, the symbol of a regime committed to slavery and racial oppression, but plastic testicles is a bridge too far.

Yes, like most obscenity cases, this one is turgid with hypocrisy….

The woman’s name is Virginia Tice. According to WCSC News-Charleston, Tice did it because she wanted to make a statement. The ABA Journal has this wonderful quote from her lawyer:

“She’s such a sweet lady and she just says ‘I don’t want to pay the fine.’ We’ll let a jury decide whether this is really criminal behavior. I don’t want to take away from the importance of free speech, but it’s really comical,” attorney Scott Bischoff of the Savage firm tells the newspaper, explaining that he plans to pursue a First Amendment defense.

Aww, she’s just a girl who needed some nuts on her truck.

The fact that it is a female who proudly decorated her truck with a symbol of male virility should not be lost on anyone who relishes irony.

Despite the absurdity of truck nuts as a constitutional issue, there is something to be said about refusing to yield or surrender one’s freedom of speech, irrespective of the crass symbolism associated with the underlying message.

Which brings me to the St. Thomas School of Law and its librarian, Deborah “Debby” Hackerman.  Both parties are co-defendants in the online defamation case stylized by Scott H. Greenfield as “Rakofsky v. The Internet” . (See the side bar for my proudly displayed “Proud Member of the Rakofsky 74″ badge).

Scott is righteously (and rightfully) indignant over news that both St. Thomas School of Law and Hackerman have capitulated surrendered conceded succumbed kowtowed submitted prostrated assumed the position settled Rakofsky’s claim for a mere $5,000 “nuisance” payment. Scott minces no words in his updated post, The Weakest Link (Space Alien Update):

There are many things a student can learn in law school.  The newest thing is to be a witless coward, cave in when there’s not a reason in the world and buy off one’s problems.  Welcome to St. Thomas School of Law, where Deborah Hackerson will be your guide.

St. Thomas School of Law Stipulation

Rakofsky graciously offered to settle the case with all of the defendants for the “nominal” amount of $5,000.  One would have thought that all the defendants laughed.  Obviously, not all.

It was silly, an extortion attempt by a child.  And they seized it.

What student could possibly go to a school that would pay off Rakofsky rather than tell him to go shit in his hat?  A chain is only as strong as its weakest link, and nothing could be weaker than to succumb to paying off Joseph Rakofsky.

Mark Bennett at Defending People in a similarly castrative post, expresses his utter disdain for this improvident settlement:

By settling with Rakofsky, the law school and Hackerson have painted a great big target on themselves for anyone else who wants to file a frivolous lawsuit. (Hear that, disgruntled unemployed St. Thomas grads? File that lawsuit; they’ll settle for nuisance value!)

Most of the defendants are fighting Rakofsky. They’ve joined together in several groups to share resources and hire counsel—not just because they can win the suit, but also because fighting is a matter of principle: they are fighting for free expression, and for the First Amendment. Because if you give one schmuck like Rakofsky money instead of utter humiliation in court, every schmuck whose feelings you hurt is going to file a lawsuit against you, and you’re going to have to either a) join the happysphere and stop speaking the truth; or b) spend your life settling vacuous defamation suits.

Maybe the settlement was forced on Hackerson and the University by their insurer. I mean only this: the insurance company might have refused to defend them if they didn’t accept the settlement. If so, then like every other defendant the law school and Hackerson had two options: give in to extortion, buying peace at the cost of  your right to free expression; or hire a lawyer and fight.

Ultimately, the Board of Regents of St. Thomas School of Law, Hackerson and their insurer, Travelers, will have to live with their decision to pay Rakofsky to “buy peace” and make this litigation go away. However, the internet and the blawgosphere have a prodigious institutional memory.

Initially, I assumed that the “St. Thomas” of “St. Thomas School of Law” was “St. Thomas the Apostle” or perhaps “Thomas More”. Apparently, the school’s namesake is “Thomas Aquinas”

In his Summa Theologica, St. Thomas Aquinas wrote:

Virtue denotes a certain perfection of a power. Now a thing’s perfection is considered chiefly in regard to its end. But the end of power is act. Wherefore power is said to be perfect, according as it is determinate to its act.
St. Thomas Aquinas identified four cardinal virtues: prudence, temperance, justice, and fortitude.
Quaere: Does this settlement reflect any of these four cardinal virtues?
Was this a prudent settlement? No. Prudence demands the exercise of sound judgment based upon foresight. Settling a case when all other defendants choose to exercise their freedom of speech is imprudent.
Was this a temperate settlement? No. Temperance requires moderation in action, thought, or feeling; restraint.  Paying a nuisance fee to settle a defamation claim wholly devoid of merit and lacking jurisdiction is intemperate.
Was this settlement just? No. justice is moral rightness based upon ethics, rationality, law, natural law,  fairness, or equity. To settle a case for the sake of expediency is unjust.
Was this settlement fortitudinous?  No. It lacks what is depicted in the photo below.

Via abovethelaw.com

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5 Responses to “Testicular Fortitude and Free Speech”

  1. Ted Brooks Says:

    Very nice commentary, Antonin! I’ll refrain from specific “lightning-rod” comments, but this is pretty pathetic. I always try to convince my clients (lawyers) that SETTLE is just another way to spell SELL-OUT. Of course, I have a vested interest in a case going to trial, but I’m just sayin’…

  2. Antonin I. Pribetic Says:

    Thanks Ted. This is a teachable moment for lawyers, law schools, and law students alike. If they don’t know the difference between principle and principal, then there is a serious problem.

  3. St. Thomas University School of Law and Deborah Hackerson Settle With Joseph Rakofsky | Popehat Says:

    […] law bloggers have been openly contemptuous of St. Thomas’ decision — as they should […]

  4. Bradley Shear Says:

    Antonin, Great post. I agree. I find it appalling that a school that allegedly teaches the law would lack any testicular fortitude to fight for the First Amendment.

  5. Antonin I. Pribetic Says:

    Scutum reliquisse praecipuum flagitium, nec aut sacris adesse aut concilium inire ignominioso fas; multique superstites bellorum infamiam laqueo finierunt. (To abandon your shield is the basest of crimes; nor may a man thus disgraced be present at the sacred rites, or enter their council; many, indeed, after escaping from battle, have ended their infamy with the halter.) ~ Publius Cornelius Tacitus, De origine et situ Germanorum (Germania) anno domini XCVIII

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