A Short Post on Jack Thompson

Like most of the other legal gaming blogs, I occasionally find it necessary to comment on the activities of attorney Jack Thompson (as of this posting, he is still licensed in Florida). As a courtesy to another member of my profession, I will not delve into his long history with the gaming industry or the gaming community, or the series of statutes he has sponsored which have been struck down. On a basic level, I agree with him that titles with adult content should not be placed in the hands of children (I, however, disagree on the implementation and place a greater responsibility on the parents, but that is a separate matter for discussion at a later date).

However, today Jack issues this complaint, which was reposted by Kotaku. I have now forced myself to read it in its entirety, and it falls well beyond the norm of complaint drafting and more into the realm of a self-promoting tirade (not to mention the occasional typographical error, the first of which I found on page 5). While I could probably write an entire post critiquing his form and use of language, or all of the complaints he lists, I will rather focus on the specific complaint against Kotaku.

A short comment before I begin: I am not licensed in Florida, but as this is a federal claim, I feel competent to comment on it. Moreover, this is merely commentary, nothing more, and I do not claim it to be definitive, exhaustive, nor to have any actual legal effect. These are simply my observations on the matter.

Why this claim? Well, first, it’s not a claim at all. Let’s look at the specific statutes he references.

18 USC 241 and 242

This statute, most notably, is a criminal statute. The basic premise of criminal law is that it is not a private action. When someone violates a criminal statute, it is the job of the government to bring charges and try the suit. If you were to assault me, I could only bring a civil suit. The District Attorney (or a similar official) would have to bring criminal charges. His reference to the statute is misguided at best.

42 U.S.C. § 1983

This is a civil claim, but once again, Mr. Thompson has missed an important element of the statute: The entity must be operating under color of law or authority. Here is a lengthy article on the statute. I can see no stretch of the imagination under which Kotaku or Gawker could be viewed as operating under the color of state authority or law.

42 USC § 1985 (3)

Under Griffin v. Breckenridge, 403 U.S. 88, the bias of the conspirators must be “some racial, or perhaps otherwise class-based, invidiously discriminatory animus.” Jack does not have any of these, unless he wants to claim that somehow Kotaku is discriminating against the class of people he claims to represent. Rather, I believe most reasonable jurists would see their actions as non-conspiratory (as conspiracy is an essential element) and non-discriminatory on a class level.

Section 1988 is not worth discussing, as it only allows for attorney’s fees in the event of a victory. There is no substantive issue to discuss.


While I can’t say how this case will turn out, I am at least glad that Mr. Thompson had the common sense to avoid a libel/slander claim against Kotaku, which would have likely failed as Mr. Thompson is undoubtedly a public figure. While many of these claims are relatively novel, they also seem to be relatively poorly constructed as a way to include a blog he particularly dislikes.

As a side note to anyone who wishes to pick up a cause as Mr. Thompson has:

Sensationalism will typically not yield the best results. Being reasonable and agreeable to compromise generally works much better.

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About Mark Methenitis

Mark Methenitis is an attorney in Dallas Texas. Mark received his Juris Doctorate and his Master of Business Administration from Texas Tech University and his Bachelor of Arts from The University of Texas.

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