What’s happening in a Chicago court right now should scare every American

By Richard Kaplan, @steemship

As some of you know, I am a former lawyer, once licensed to practice in California in the United States. I do not trust the legal system or the government much anymore; true “justice” is for the wealthy only. But I am glad to provide some legal perspective here on Steemit. As long as we have a government built on laws, then I hope I can serve some small purpose by helping others understand this landscape.

In a Chicago court right now, there is a case you need to know about. Artists around the world are angry about the precedent it could set. Plenty of lawyers are upset also, because the case should have been thrown out long ago. But this case could affect other people, too: it could affect you and me.

The case of Fletcher v. Doig is a civil case, yet it challenges one of the most fundamental guarantees in American law: the presumption of innocence.

This case has the power to re-write American law. Rarely since the Salem witch trials or the McCarthy Red Scare in the 1950s have we seen such a blatant attempt to require a defendant to provide proof of his innocence (or, as it’s called in civil law, lack of liability).

Sure, there have been plenty of phony lawsuits and trumped-up prosecutions of innocent people. Courts have made mistakes, shown bias, and miscarried justice many times. But I cannot remember another case where the court has turned the tables on the defendant like this and forced him to prove that he is not responsible.

Fletcher v. Doig involves a landscape artist named Peter Doig, whose work is worth a lot of money. (The first picture in this post shows a genuine Doig painting at auction.) Fletcher owns a piece of art and he has sued Doig for millions of dollars, claiming that Doig painted it, and that Doig’s refusal to acknowledge this is costing Fletcher millions of dollars.

Here is a picture of the piece Fletcher claims was painted by Doig:

So Doig is being asked to prove that he DID NOT paint the desert landscape picture above. If he cannot prove it, the plaintiff may collect millions of dollars from him.

Apparently, this plaintiff has what he thinks is a genuine Doig painting, and if it is, it is worth a lot of money. Doig the artist is saying that it isn’t his work; it was painted by someone named Doige with an “e”. Doige with an “e” is dead, apparently, so no one can ask him, but according to the evidence, there actually was another Peter Doige (with an “e”). Both Doig and Doige grew up in Canada, painted, and could have had the opportunity to meet the man who bought this piece.

The facts are odd and they’re disputed. Either side could win. I can see why the judge thought there was enough of a question to warrant trial. But that’s not the point.

The point is that no court should ever put a defendant in the position of having to prove that he DID NOT do something. In American law, we have something called the burden of proof. In every criminal case and in every civil case, that burden is on the moving party, which is the prosecutor (criminal) or the plaintiff (civil). Yet from the start, the whole thrust of this case has been to cast the artist’s claim in doubt. He has denied ever having painted the work in question.

Forcing an artist to defend his claim that he did NOT paint something sets a dangerous precedent. For artists. For lawyers. And for people like you and me.

Someone could post a blog article on Steemit tomorrow with my name on it, saying that it was penned by the famous Richard Kaplan, a.k.a. @steemship . And if I denied that I did so, could that person take me to court, suing me for the lost cost of that post? If it had been written by me, well, it might have earned a million dollars in rewards on Steemit. I am, after all, a long tenured writer in the short history of Steemit and I even co-authored the famous Steemit 101 e-book. But because Joe Noob posted the piece bearing my name, and Joe Noob is not yet known to a large audience, it earned 17 cents.

Could I be liable for the difference? If such a case went to court and the other side dragged in the precedent of Fletcher v. Doig with Fletcher having won (if that’s the outcome later this week), then does that mean I have to defend my own innocence? It’s not my piece! What more do I have to say, do, or prove?!

Let’s imagine another scenario. A Snowden-type whistleblower has decided to publish something inflammatory on Steemit. It implicates the government using information that was classified by law. And that whistleblower must remain anonymous for fear of persecution and reprisal.

Now in a prosecution or civil case of someone who claims NOT to be the writer, to what extent should that defendant have to prove himself innocent?

Screw that. Proving guilt or liability is the job of a prosecutor or a plaintiff. The defendant has no such burden in American law, though he or she is welcome to offer up a defense. May it stay that way.

Shame on the judge for letting the Fletcher v. Doig case get this far. If Doig loses, it puts every artist and content creator in jeopardy of facing the same kind of witch hunt someday. And it severely weakens a bedrock principle in American law.

-Peace, Richard, @steemship

#law
#art