Former Sen. James Abourezk (D-S.D.), an Arab-American who virtually coined the term “The Israel Lobby” in the 1970s, has been called everything from “jerk” to “Jew-baiter.” Just don’t call him “traitor.”
That’s the message of a lawsuit the one-time Senator now has pending before a judge in South Dakota. Abourezk is seeking $5 million in damages, plus a public apology, for having been “defamed” by the suggestion that he is guilty of treason against his country.
The defendant in this instance is Mike Marino, a 21-year-old from suburban Philadelphia who operates the Web site ProBush.com.
The site features a “Traitors List” that includes not only Abourezk but also such putative enemies of the state as Susan Sarandon (“Tribunal for you,” Marino writes), former President Jimmy Carter, a musician called Noodles and Dr. Patch Adams (the real one, not the character played by Robin Williams in the 1998 biopic).
Marino says he would have taken Abourezk off the list if he had “asked nicely” at the start.
“But to throw this lawsuit in my face — it’s just kind of intimidating,” Marino said in an interview. “I mean, when you were 21 did anyone have a lawsuit against you?”
Abourezk’s lawsuit against ProBush.com basically argues this: Marino charged the former Senator with being a traitor; treason is a felony; and someone cannot falsely accuse an individual of committing a crime.
Marino has claimed that the list is essentially a parody, rather than a legal judgment. The site avers, “If you do not support our President’s decisions you are a traitor,” which is a somewhat less exclusive definition than that used by the federal government or the courts.
The Traitors List includes the Dixie Chicks and former Rep. Gary Condit (D-Calif.). Marino says most of the names were taken from a petition circulated by the group Not In Our Name, which opposed the overthrow of Saddam Hussein in Iraq. The list now includes nearly 200 names.
Legal experts are in seemingly universal agreement that Abourezk’s case will not succeed. Law professor and First Amendment specialist Eugene Volokh, who has joined an amicus brief filed on Marino’s behalf, calls it “one of the 99 percent of all cases that will never be cited as precedent,” arguing that the case covers “settled law” on free speech.
Broadly speaking, politicians are among the last public figures protected from even the most baseless charges.
Abourezk, nevertheless, has cast himself as the champion of free speech in this matter.
“You can’t use the First Amendment to club someone else over the head so they can’t speak,” said Abourezk’s lawyer, Todd Epp, who likened the charge of “traitor” to that of “child molester” and other such criminal ilk.
Epp called the Traitors List on ProBush.com a “criminal demonization of people who don’t agree with the president.”
“Can you use free speech to keep someone else from speaking? That’s what this case boils down to,” he said.
Volokh expressed puzzlement at that explanation.
“I certainly hope that someone who used to be a Senator would not be chilled by people calling him names,” said Volokh, who teaches at the University of California at Los Angeles. “That people will call you names is, unfortunately, part of the political game.”
In response, Epp said that in bringing the suit Abourezk also hopes to protect others who might not share his “thick skin” and could be cowed into silence by the prospect of appearing on a list of “traitors.”
Epp said he has three other clients, including one “big name” from Hollywood, prepared to join the suit if it reaches the discovery phase.
Marino says he was watching a particularly unruly and invective-laden protest against President Bush last summer when he got the idea for the Web site.
“I was a little sick of the protesters,” Marino admitted. “I decided to take a pretty liberal conservative view [of Bush’s opponents]” — he used “liberal” to mean “ill-mannered” — “and act like they do, [but] on the ’Net.”
ProBush.com reads like a shrine to the president. It includes flattering photos of the chief executive, plus links to products such as the George W. Bush Elite Force Action Figure and tributes to figures such as former White House Press Secretary Ari Fleischer.
There is also a link to the Traitors List, as well as to a Patriots List. Both lists have been trademarked by the site.
Abourezk was searching his name on the Internet site Google when he discovered Marino’s site, his attorney said.
As one of the more colorful and controversial figures to serve in the Senate, Abourezk is no stranger to ridicule and even vilification. But something about being called a traitor flipped a switch in the onetime Navy man.
“I think ‘disgusted’ is the right word,” Epp said, describing Abourezk’s reaction.
Epp, a law partner of Abourezk’s, was enlisted to look into the matter. ProBush.com was listed with a domain registry that kept its subscribers anonymous, but Marino was smoked out when Epp threatened suit and the Pennsylvanian’s account was canceled.
Through Epp, Abourezk then sent a cease-and-desist letter to Marino. It included a demand for a public apology, plus $2,000 to cover legal fees. That number soon grew to $5,000.
“That kind of scared me a little bit — being 21 and all,” said Marino, who works for a small tech firm in Bluebell, Penn.
The defamation lawsuit that ensued asks for $2 million in actual damages, plus punitive damages of $3 million. It also seeks to recover attorney fees.
Abourezk left the Senate in 1979 and soon after established the American-Arab Anti-Discrimination Committee, which continues to operate. The group would seem to have been a natural extension of the work the lawmaker had been doing in Congress, where he crusaded against forces that he believed were steering U.S. policy against the Arab world at the behest of Israel and its allies in Congress.
A 1994 article in the Arab News recounted the then-Senator’s efforts at one point to “expose the Israel lobby” for attempting to “control” a particular committee hearing “through improper electronic penetration” by its officials.
Episodes such as this made Abourezk something of a hero among some segments of the Arab-American community and on the political left, where there was strong sentiment against Israel for its “occupation” of Palestinian territories after 1967.
Abourezk has shown something of a sensitivity over time toward what he contends are efforts to quell dissent from the political left.
In a December 2002 op-ed, he accused the Bush administration and its supporters of engaging in “a form of modern-day McCarthyism” by questioning the patriotism of those who opposed efforts to depose Hussein.
He said that Rep. Nick Rahall (D-W.Va.), with whom he had recently gone to Baghdad, had been called a “traitor” by a GOP opponent in his district. (An Internet search turned up no record of the statement.) Abourezk suggested people ought to instead question the patriotism of “those in the Bush administration who seem to delight in the prospect of the annihilation of innocent Iraqi civilians.”
Still, not all of Abourezk’s allies are on board. The leader of the group antiwar.org, for one, has condemned the former lawmaker, saying he is “horrified” that Abourezk filed suit.
Groups such as the Free Speech Foundation, meanwhile, have lent assistance to Marino out of concern that if the suit succeeds, it will begin to set limits on what can be said online.
“It’s lawsuits like this that, if unanswered, would have the effect of putting restrictions on Internet speech,” said Jeff Gannon, a foundation official who has been helping Marino. “If the suit actually went forward, it would break new legal ground.”