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September 7, 2007

New Round of Contention Between Harlan Ellison and Fantagraphics Over Mediated Settlement

By David P. Welsh

What promised to be the last word in the Harlan Ellison vs. Fantagraphics, et al lawsuit seems to have triggered a new round of contention between the parties.

The mediated settlement between the litigants, released over three weeks ago, allowed the defendants "to post on [Ellison's] web site for 30 days a rebuttal of no more than 500 words regarding Ellison's comments that [Fantagraphics publisher Gary] Groth had embezzled funds in the Fleisher litigation and solicit[ed] contributions to the Fantagraphics Legal Defense Fund under false pretenses, and that likened Mr. Groth to a child molester."

No such rebuttal has appeared on Ellison's site, though Fantagraphics has posted a PDF of an amended version of the settlement which includes the rebuttal (Exhibit C, page 18) to The Comics Journal's home page. Groth's rebuttal, coming in at precisely 500 words according to my word processing program, reads as follows:
"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. This is my attempt to put those principles into action."

"Between the time Harlan Ellison launched his lawsuit against Fantagraphics, et al., and now, he has made a number of false accusations and defamatory public statements about me, to wit:

"BIG LIE #1: Ellison accused me of embezzling monies from our Legal Defense Fund during the '80s and spending the embezzled funds on a tropical vacation in the Bahamas (on his weblog, February 17, and in his initial complaint as well). This is untrue. I never took funds for my personal use from our Defense Fund. Every cent we raised from 1980 to 1987 went toward paying our legal bills. I defy Ellison to offer evidence to the contrary.

"BIG LIE #2: Ellison accused me of defrauding the contributors to our current Defense Fund by misrepresenting how our attorneys were being paid. Ellison claimed that the costs of our lawsuit were borne by either an insurance company or a 'guardian angel' (possibly both). He wrote 'IIIIIIII do not have an insurance company or a secret financial angel behind do you...' [emphasis mine] And: 'You need no Defense Fund, Gary, so why not tell your folk the name of the entity(ies) paying the bills for a firm that must already have logged in tens of thousands of dollars of time, while BloatedLyingIronic Harlan seems to struggle along with only two blind, crippled, diabetic (also brilliant, masterful, rational) guys whose legal offices number their staffs in the total of ONE EACH?'

"'BloatedLyingIronic Harlan Ellison' is in fact lying. We had no insurance company or guardian angels to cover our legal bills. Our only 'guardian angels' are those artists who thought our cause just enough to help us after we'd announced our Defense Fund -- artists and friends such as Art Spiegelman, Robert Crumb, Ralph Steadman, Joe Sacco, Frank Thorne, Jeff Smith, Megan Kelso, Tony Millionaire, Gilbert & Jaime Hernandez, Bill Willingham, Daniel Clowes, Peter Bagge, Barry Windsor-Smith, and too many others to enumerate.

"What's interesting about Ellison's assertion is that there's no way he could have known the truth or falsity of it, yet he made it anyway -- and emphatically!

"BIG LIE #3: '...Apart from much of the crap Groth publishes, they [sic] are like serial child molesters who publicly do Good Works, and privately indulge in heinous behavior.' This isn't technically a lie, but an example of Ellisonian hypocrisy, of engaging in ad hominem rhetoric that he himself denounces. 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."
Ellison's legal counsel, John H. Carmichael, has released a statement outlining the reasons for his client's unwillingness to post the rebuttal on his site in accordance with the terms of the agreement:
"Dear All:

"Gary Groth has published his 'rebuttal' statement referred to in the recent settlement agreement between Harlan Ellison and the Fantagraphics Defendants in the above referenced case. The settlement agreement stated that Mr. Ellison would permit the Defendants to post on Mr. Ellison's website a 500 word rebuttal to: 'statements made by Plaintiff that accused Mr. Groth of embezzling funds in the Fleischer case ... soliciting ... funds under false pretenses ...' and 'statements which likened Mr. Groth to a child molester.' See Settlement Agreement. Page 4, Paragraph 6.

"The grant of this short rebuttal was not an opportunity to grandstand on the First Amendment -- Fantagraphics' supposed knightly championing of it and Mr. Ellison's alleged disregard of it -- thereby perpetuating the one-upsmanship on the topic, as to who believes in the First Amendment more, etcetera. In our opinion, the Defendants overreached both the letter and the spirit of the settlement agreement. It was precisely this sort of sniping Mr. Ellison intended to quell as a by-product of the main thrust of this case, which was to correct the record.

"The parties had not yet privately resolved their disagreement on whether Mr. Groth's 'rebuttal' was an overreaching First Amendment screed or within the limited scope of the settlement agreement. The Defendants published it anyway.

"Regarding the substance of the rebuttal: It is important to point out that at the time Mr. Groth's objections to the two statements were made known to Ellison, Ellison took steps to investigate, correct, retract and even apologize for any inaccuracy. We believe these are the appropriate steps to take, both legally and morally, when confronted with a legitimate concern about the veracity of a public statement. As to the prior hyperbole that both sides have engaged in, this settlement agreement was to put an end to it once and for all.

"In the case of Ellison v. Fantagraphics et al., the settlement agreement speaks for itself on the subject and no further comment need be made."

"Mr. Ellison considers the matter closed."
this article was prepared by David P. Welsh as a favor to this site, with Mr. Welsh working unsupervised and retaining final cut
posted 4:30 am PST | Permalink

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