Ellison Violates Lawsuit Settlement

My question about one of the requirements in the Ellison/Fantagraphics lawsuit settlement has been answered, sort of.

I asked

The settlement said that Gary Groth (or someone representing him) will get to post an essay on Ellison’s message board within five business days of the agreement. So does anyone have a link? Google didn’t turn one up. I can’t imagine that no one would be talking about it if it was posted… so does that mean one of the provisions of the settlement wasn’t met?

The Comics Journal has updated their history page about the suit with a new version of the Settlement Agreement (PDF file) that:

contains the 500 word Statement by Gary Groth that Harlan Ellison agreed to run on his website — unedited and unaltered — according to the settlement agreement signed by both parties… This Statement was sent to Ellison’s lawyer on August 20, 2007; despite the fact that the Settlement Agreement stipulated that it be posted on his web site for 30 days, it has not yet been posted — two weeks later.

The 500 words are contained in Exhibit C of the PDF link above. They begin

Unlike those who threaten, intimidate, bully, extort by lawsuit, and carry out physical assaults, I believe the corrective to forms of speech one doesn’t like is more speech — i.e., the truth.

They go on to address, from Groth’s perspective, three labeled BIG LIEs [sic] of Ellison’s, covering his accusing Groth of embezzlement, Ellison asserting that Fantagraphics’ legal bills were covered by insurance, and about an example of Ellison “engaging in ad hominem rhetoric that he himself denounces.”

The statement concludes:

On the one hand, Ellison objects to being referred to as a “dilettante” and on the other likens me to a child molester. It is an example of someone being able to dish it out but unable to take it (without filing a lawsuit). It is an example of someone believing in free speech — for himself but not for his opponents.

I’m not terribly surprised that Ellison has resisted posting such a direct statement of his apparent hypocrisy in this entire matter. But as I read it, by not doing so within the legally stated period of time required, Ellison is now in violation of the settlement, correct?

Update: Ellison’s lawyer has claimed that the rebuttal statement isn’t in keeping with the agreement, and so Ellison doesn’t have to do what he said he would in publishing it.

In the comments, a reader adds links to a discussion thread which also makes the interesting point that “Ellison’s website” harlanellison.com is not owned or managed by Ellison, and the actual owner is not a party to the suit or the settlement.

I’m now fully in agreement with the gentleman who said that, regardless of the actual agreement, Ellison’s reputation as a free speech advocate is the thing ruined by all of this.


10 Responses to “Ellison Violates Lawsuit Settlement”

  1. Don MacPherson Says:

    Is Ellison in violation of the agreement? On the surface, it appears that might be the case. A closer study reveals a potential loophole.

    The agreement notes that Groth’s rebuttal statement is to be posted on Ellison’s website, http://www.harlanellison.com, for 30 days within five days of the settlement agreement being signed. The rebuttal statement was provided to Ellison’s lawyer Aug. 20, six days after the agreement was signed, so yes, the rebuttal should have turned up on the website.

    But where on harlanellison.com should the rebuttal appear? The agreement is silent on that. There’s no mention of prominence, of apparent links, etc. Yes, the spirit of the agreement would be for the rebuttal to be public and visible, but given the wording (or lack thereof) in the agreement, is it enforceable?

    Section 15 of the agreement notes that if any one part of the agreement is found to be unenforceable, the other conditions remain in effect and enforceable.

  2. Paul O'Brien Says:

    Clause 6 is silent about WHERE the statement should be posted, and I suppose you might make a technical argument that an unlinked page somewhere on the domain is sufficient. But I can’t see a court accepting that view. Given the purpose of the clause, it’s obviously implicit that the statement has to be linked from the main site. I think they’d regard “the Plaintiff’s website” as meaning the overall entity as a reading experience (for want of a better term) rather than the purely technical sense of a URL somewhere on that domain, because the latter meaning makes the clause an absurdity.

    However, the Settlement Agreement is silent about how prominent any link has to be, which strikes me as a fairly major omission. Perhaps they were unable to reach agreement on that point, but it seems an odd thing to leave unresolved.

  3. Johanna Says:

    Don, Paul, thanks for your informed insight. Don, especially for answering the implicit question about how this affects the overall agreement. My question then is, what penalty, if any, does Ellison face? Or does forcing him to live up to what he agreed to require more expensive lawyers?

  4. Paul O'Brien Says:

    I’m not going to speculate on what the consequences might be if he’s in breach. That’s the sort of thing that can vary wildly between jurisdictions. (For example, I don’t know whether this has some sort of court-sanctioned status or whether it’s regarded purely a private contract.)

  5. Don MacPherson Says:

    Paul’s point that there may be no actual action a court can take in this case is a valid one. This settlement seems to have been hashed out by the parties and their lawyers outside of any direct court involvement.

    Honestly, I think it’s too early to declare that Ellison is in violation of the agreement. Yes, it certainly seems that way, but other factors may be in play. Just as it’s reasonable to think that the rebuttal ought to be posted in a visible place on Ellison’s website, it’s also reasonable to expect that Ellison would have *some* say in the content of the rebuttal.

    For example, if Groth had rebutted with a 500-word tirade that Ellison had a yen for the manual masturbation of Canada geese, I don’t think Ellison could be reasonably expected to post that.

    I’m not suggesting Groth’s rebuttal isn’t exactly what the parties expected, but it’s also reasonable to give Ellison and his legal adviser some time to examine that rebuttal, even if such an examination isn’t allowed for in the agreement.

    To be honest, I think it’s a moot point. Given Groth’s decision to dispose of the matter through this settlement, I can’t see him tossing it out over this one point. After all, anyone with an interest in the rebuttal will no doubt see it, and Ellison comes off looking petty and even more of a “villain” in the conflict by failing to abide by the agreement. There’s a good chance that may be more satisfying for Groth than actually forcing Ellison to post the rebuttal on his site.

  6. Don MacPherson Says:

    I just noticed that Ellison’s legal counsel has replied to this issue.

    Apparently, the rebuttal will not be posted on Ellison’s website.

    To be completely fair, the lawyer is correct that one could interpret Groth’s rebuttal as going beyond the scope of what was agreed upon for the statement.

    That being said, there’s also a tone in the reply that leads one to believe that there was a reluctance to post the rebuttal in any case, that Ellison feels his correction and retraction of his controversial comments to be sufficient remedy.

    Again, I can’t see Groth and Fantagraphics going to war all over again over this one element. The damage to Ellison’s credibility might be compensation enough.

  7. Paul O'Brien Says:

    Don makes a fair point – there might be a dispute as to the terms of the Rebuttal Statement. Clause 6 provides that the statement shall “not exceed 500 words”, and must be “for the purpose of rebutting” certain specified allegations. None of that would be necessary if the text of the Statement had already been agreed. On the other hand, the clause goes on to require that “A copy of the Defendants’ Rebuttal Statement shall be attached to this Agreement as Exhibit C,” which strikes me as an odd provision if the statement doesn’t exist yet – but perhaps that’s the way they do things in that jurisdiction.

    So, assuming for the moment that the text of the Statement hadn’t been agreed when the Agreement was signed, is there anything in it that might cause problems?

    Maybe. The statement goes beyond merely rebutting the specified points, and essentially alleges that Ellison made the statements in bad faith. It might be argued that this goes beyond the stated purpose of the Rebuttal Statement. One paragraph ends by challenging Ellison to produce evidence, which is a funny way of drawing a line under a dispute.

    It could also be argued that the whole tone of the statement contravenes clause 4, which prohibits the parties from making further “ad hominem attacks” on each other. Now, admittedly, that’s a very nebulous concept. But the opening line of Groth’s “Rebuttal Statement” is “Unlike those who threaten, intimidate, bully, extort by lawsuit and carry out physical assaults…” In context, this certainly seems to be directed at Ellison – who else could it be aimed at? – and I have some difficulty seeing what it has to do with rebuttal.

    Then again, the statement DOES rebut the three claims in question, and it might be argued that Groth is entitled to be as colourful as he likes, so long as the statement as a whole is genuinely directed to the agreed purpose – which it is.

    So, like Don, I would agree that (based on the information in the public domain) it is by no means self-evident that Ellison is necessarily in breach of the agreement. He may have an arguable case that this statement does not comply with the requirements of clause 6. There ARE two ways of looking at this.

  8. Alan Coil Says:

    Goods points, Paul.
    —–
    Johanna, if the first section you quoted, it says:
    “The settlement said that Gary Groth (or someone representing him) will get to post an essay on Ellison’s message board within five business days of the agreement.”

    At the forums, the Administrator has said:
    “Fantagraphics is supposed to post it on my site. They can easily do so either here or on the Pavilion.” (Here being the forum; Pavilion being the main Ellison comment page.

    http://harlanellison.com/heboard/forum/viewtopic.php?t=1750&postdays=0&postorder=asc&start=210

    ((7th post down))

  9. Johanna Says:

    Yeah, and the response to that was

    “I raised it in an email to Gary Groth. He says he actually did try to post the statement to the pavillion not once but twice. Each time it was blocked, giving him a message along the lines of “You have been bad.” Is it possible that the pavillion is somehow set up to automatically reject messages that come from email addresses containing words like “groth” and “fantagraphics”? So it seems like the criticism from you and others about Fantagraphics failing to take the initiative to post here may have been a bit misplaced.”

    The admin later responds that it was probably a filter misinterpreting something and goes on to say:

    I have a request from Groth to post his rebuttal now, and asked in what form he wanted it up. I will be happy to put up whatever gets this resolved provided it’s with the permission of Harlan or his legal counsel.

    So it looks like Groth/Fanta doesn’t get to post it themselves, after all. Lots of interesting (in the sense of watching tawdry gossip) followup in that harlanellison.com thread.

  10. Alan Coil Says:

    Groth DOES get to post it himself, but couldn’t, possibly because of coding problems. There is no block on Groth or Fantagraphics. Groth could possibly still post it at this point, but has asked the Admin to do so.

    Whether that happens immediately or not, we shall see.




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