VW Gone Buggy

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, wimpy . 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… illegal?

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 roundly rejected 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 that jurors 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.

Postnotes:

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.