Most Twitter users are by now familiar with “subtweeting,” which is when someone tweets about their enemies or rivals without actually mentioning them. This weekend, we were entertained by blogging lawyer Ken White, who wrote an entire post titled “So You’ve Been Threatened With A Defamation Suit” without acknowledging that his friends are currently being sued for defamation by Brett Kimberlin. Is White “subblogging”? Here is our favorite passage from his post:

Criminal defense attorneys like me tell our clients about something we call the Martha Stewart Rule: lots of people get into trouble not because the did something wrong, but because they heard they were being investigated for doing something wrong, and they panicked and started lying and deleting files and setting cabinetry on fire and making angry statements to the press and generally venting their agitation. They go to jail for stuff they did when they lost control over themselves, or they go to jail because in their panic they generated new evidence of prior wrongdoing.

A defamation threat — like many legal threats — presents the same risk. A not-real-problem can be transformed into a real-problem by panicky behavior: quickly deleting things, quickly changing things, writing new things when you’re all atwitter, saying incriminating things you don’t mean because you’ve turned your mouth to “on” and wandered off, and so forth.

White’s denialism is more subtle in this post than previous ones. This does not signal an acceptance of the reality of Kimberlin’s lawsuit, but newly-sublimated denial: “a not-real problem can be transformed into a real problem by panicky behavior,” White says, as if to suggest that Kimberlin’s suit is not real, and is only being made real by the understandable panic of the people being sued. Yet if White sought to tamp down on self-destructive behavior by his friends, he has failed. Readers will recall that weeks ago, we identified a man named Kender McGowan as the original creator of the @kimberlinunmask Twitter account, which exists for the sole purpose of defaming Kimberlin. McGowan appeared in the comments of our post to deny responsibility, but on Monday night he admitted it was all a lie.

We wonder: who is McGowan’s counsel? Did Ken White’s subblogged advice about the “Martha Stewart rule” resonate with Kender, or does he imagine that admitting to his earlier lies will protect his friends like Aaron Walker Stalker who have used the account, too? Either way, he has run afoul of White’s “Martha Stewart rule” already. If White was trying to massage the situation through subtle means, then perhaps he was too subtle.

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