Gators Attack Juicy Campus

University of Florida Student Body President, Kevin Riley, and Chief Information Officer, Marc Hoit, recently issued this letter to the Florida Attorney General asking that the Florida Office of the Attorney General launch an investigation into Juicy Campus, the well-known gossip site. They did not elaborate on what kind of investigation they expect the state to launch.

I agree that JuicyCampus.com contains terribly defamatory posts about many people. However, if you are gullible enough to believe anything you read on JuicyCampus.com, your opinion cannot be all that influential. I also think that asking the government to launch an investigation because a few thin-skinned people have had their feelings hurt is asking for a level of governmental paternalism that used to (in my day) piss college students off. Kids these days…

The letter reads:

“[JuicyCampus] is used to anonymously post gossip regarding students. The anonymity, and the guarantee that information about a user’s identity will not be tracked, provided by JuicyCampus emboldens users to post false and damaging statements about others. These posts often amount to cyberbullying and raise issues of public welfare and safety.” (source)

Mr. Riley and Mr. Hoit, in their zeal to go crying to the teacher, seem to have neglected to do their homework. JuicyCampus.com is protected from liability for the actions of its users by 47 U.S.C. § 230, which was passed in order to ensure that online businesses would not have to grind to a halt while they police their users’ actions. The phone company is under no obligation to make sure you don’t use your phone to set up a contract killing, a drug deal, or to make sure you don’t say nasty things about your co-workers. Similarly, internet service providers should receive the same laissez-faire treatement, lest censorship become the bastard child of technology. See Robert Corn-Revere, New Technology and the First Amendment: Breaking The Cycle of Repression, 17 Hastings Comm. & Ent. L.J. 247, 264 (1994). Naturally, the internet =/= phone lines. However, unless the website in question actually assists in the production of the offending material, it is not liable. See, e.g., Craigslist Wins Section 230 Case. The much-misunderstood Fair Housing Council v. Roommates.com decision did not change that rule, but rather reinforced it. In that case, Roommates.com provided pull-down menus that guided users to create potentially discriminatory housing postings. Therefore, they lost their Section 230 immunity. Craigslist is, like JuicyCampus, free-form and fully protected.

Despite their claim that JuicyCampus raises issues of public welfare and safety, the signatories of this foolish missive appear to be clueless as to how JuicyCampus has cooperated with the authorities in the past.

In situations where Juicy Campus posts have crossed the boundary from nuisance or harassment to outright threat, the site has cooperated with authorities. In December, Carlos Huerta, a senior at Loyola Marymount University, in Los Angeles, posted a message on Juicy Campus alleging that he would start a shooting spree on campus. At the request of the police, Mr. Ivester traced the threat to Mr. Huerta, who was arrested and released without charges. (source)

I agree JuicyCampus most likely hurts a few people’s feelings. There may even be an anecdote or two that raises the complaints beyond mere alligator tears. However, the vast majority of the content on JuicyCampus is innocuous or just plain silly. It seems to me that the only purpose served by this letter was a desire to appear to care about a non-problem.

I have been to bathrooms at the University of Florida where I saw defamatory material written on the wall. No investigation was launched – at least not at the level of the state Attorney General - and nobody called for the building to be torn down. The logic of blaming the forum for the actions of the participants is as illogical as closing a public park because someone held up a defamatory sign.

Section 230 is an example of Congress getting an issue right — internet commerce must be allowed to grow, even if that growth causes a few stretch marks.

Kevin Grierson said:

I don’t think it’s the job of the law to limit the options of law-abiding citizens and businesses because of the potential harm to the Darwin-Award-winning segment of our society.

Similarly, it is not the job of the state to intervene in every example of hurt feelings – even if it is a widespread issue. The next time you take a flight, look at the immense hassle you have to go through. Flying in America is an experience that is a pain in the ass because we passed rules designed to affect the behavior of a few of the worst people in society. Then, we handed the rulebook to dumbest nitwits we could find. Do you really want the government passing rules and launching investigations that may wind up placing the same kind of restrictions on the greatest tool for mass communication ever invented? I sure don’t.

If a student feels aggrieved by the content on Juicy Campus, he or she has the right to file a private cause of action. If the speech rises to the level of a true threat, the police will get involved. Asking the government to launch an investigation into a public forum because of the actions of a minority of participants in that forum is an act of abject foolishness.

There are some areas where the government should never venture – including criminal investigations of activities involving free speech. Fortunately for us, I do not believe that Bill McCollum will take any action. Mr. McCollum, a die-hard Republican, has an excellent record when it comes to free speech issues. McCollum has tirelessly pursued child predators and human traffickers, but he has courageously resisted calls from social conservatives to investigate and prosecute mainstream pornography. McCollum understands the meaning of being a conservative, and is not likely to intervene in a situation that could be cured either through the marketplace of ideas or over-cured by government intervention.

I don’t mind Mr. Riley or Mr. Holt raising the alarm about Juicy Campus. They were well within their First Amendment rights to express their opinion, and to petition the government to take any steps they liked. They crossed the line by purporting to speak for the tens of thousands of students at the University of Florida. I called McCollum’s office, which confirmed that there has been exactly ONE complaint about Juicy Campus by University of Florida students — and that was launched by the student body president himself. Who were these two ass-hats speaking for but themselves?

I encourage Mr. Riley and Mr. Holt to do their homework before they try to start a government investigation into people saying naughty things about one another. I have always found the University of Florida to be a shockingly intellectually complacent institution (and yes, I am a Gator), but this is a new low. Had this been a less enlightened attorney general, their foolish letter very well could have caused real damage to free speech on the Internet.

Memphis Police Sue to Out Anonymous Critic

From Commercial Appeal via hawkhead at biglawboard

Memphis Police Director Larry Godwin and the city of Memphis have filed a lawsuit to learn who operates a blog harshly critical of Godwin and his department.

The lawsuit asks AOL to produce all information related to the identity of an e-mail address linked to MPD Enforcer 2.0, a blog popular with police officers that has been extremely critical of police leadership at 201 Poplar.

“In what could be a landmark case of privacy and the 1st Amendment,” the anonymous bloggers write on the site, “Godwin has illegally used his position and the City of Memphis as a ram to ruin the Constitution of the United States. (source)

There is a suggestion that this may have something to do with stopping investigation leaks, so I’ll reserve judgment for the moment. However, it certainly looks like an angry public figure stomping on the First Amendment. Comments from anyone who knows more about the case are invited.

Pseudonymous Speech and Message Board “Acting” and the AutoAdmit Case

A fascinating post on Big Law Board:

Isn’t it obvious, from all we’ve seen throughout the years on various message boards, that monikers are mainly acting names behind which someone hides in order to provide entertainment value for the owner of the moniker and/or others?

Now, I don’t condone the googlebombing and outing of the female Does in the XOXO case, and I think they will get what’s coming to them for causing damage to REAL law students, but I believe some of them just made some stupid comments, not directed at any one person, all in the name of acting and entertainment.

If Brad Pitt starred in a movie, playing a role as a racist asshole, that’s fine. What’s the difference? Teh interwebz should allow for acting without the formal title of “actor.” (source)

This seems like a valid point. As the court noted in Reno v. ACLU:

Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, “the content on the Internet is as diverse as human thought.

If that is the case, then why can’t everyone also be an actor? I follow a few chat boards, and I do enjoy waiting for the next hilarious post by “Creepy Old Guy” or “Pale Blue Dot,” and I am certain that the real-life people behind these monikers are nothing like their online personas. And, I don’t expect them to be.

Auto Admit Update

I have been meaning to blog about this, but I’ve been obsessed with fatherhood… fortunately, Dave Hoffman over at Concurring Opinions sums up the pwnage that was visited upon AK47 here.

AK47 Comes Back Swinging

AutoAdmit pseudonymous defendant “AK47″ has made a few errors in judgment. First his statements on the AutoAdmit board. Bad judgment? Yes. Legally actionable? Probably not. But, that didn’t stop anyone from including him as a defendant.

Next error in judgment - this pro se motion to quash.

Back on February 28, I wrote:

My prediction — had Mr. AK47 written his motion a little more skillfully, he might have had a great chance. Unfortunately for him, the motion is so poorly drafted that it will take some charity on the Court’s part for it to fly. I hope that for the First Amendment’s sake, the judge is feeling the love.

It appears that my prayers were answered by the First Amendment gods, because Judge Droney took the very unusual measure of appointing pro bono counsel for AK47 - John R. Williams (who seems to be pretty bad ass).

Williams argued the Motion to Quash on May 5. As a result of Williams’ work at that hearing, Judge Droney ordered Plaintiffs counsel to brief him on whether the court has subject matter jurisdiction. As discussed here, the entire case could potentially unravel, depending on how the judge rules on the subject matter jurisdiction question.

Plaintiffs counsel responded with this memorandum. I am not very impressed. I’d have given it a D plus if it were submitted in one of my classes.

Today, AK47’s attorney really opened up a box of PWNAGE. If Mr. Williams is correct, then the plaintiffs made a pretty bad tactical blunder (as if filing this frivolous case wasn’t enough of a blunder).

First off, it seems that Mr. Williams found the same ironic quote authored by the Plaintiff’s counsel:

The plaintiffs’ lead attorney in this case has appropriately written that “[b]y mischaracterizing tort claims as copyright claims, plaintiffs seek to take advantage of a more favorable legal regime. This sort of gamesmanship is undesirable.” Lemle, “Rationalizing Internet Safe Harbors,” Stanford Public Law Working Paper No. 979836 (April 10, 2007), http://ssm.com/abstract=9798736. That, of course, is exactly what the plaintiffs have done here. The only basis for federal jurisdiction of this action is the plaintiffs’ claim that one of them, Doe I, “owns valid copyrights in her photographs and has registered these copyrights with the United States Copyright Office.” The plaintiffs now admit that Doe I has no such copyright at all. They argue, somewhat disingenuously, that this inaccurate claim was a mere “typographical error” and that another plaintiff in fact owns and has registered a copyright.

D’oh!

The Lemley-PWN aside, is Attorney Williams making too much hay out of a mere “typographical error?” Normally, I would say so. However, upon closer inspection of the argument, he seems to have a point. It seems that the plaintiffs have had multiple chances to fix the “error,” and only now raise it as a “typo.” Further inspection of the pleadings leads to the suggestion that perhaps it was not a typo at all.

Then comes the jurisdictional whup-ass.

The federal jurisdictional “hook” upon which the plaintiffs rely is gossamer thin in any event, as demonstrated by the fact that in their briefs opposing the motion to quash they do not even attempt to argue that they can win their copyright action. That it was manufactured specifically to allow the plaintiffs to get into federal court with their state law case can hardly be doubted, since the alleged copyright was not registered until a mere two days before this suit was filed, and it was registered by the plaintiffs’ attorney in this action. (source)

I don’t know if Judge Droney will simply toss this action - but he certainly seems to have adequate grounds to do so.

Read Williams’ memo here.

AutoAdmit update - AK47 motion to quash argued - plaintiffs respond

Pseudonymous defendant, AK47, had his motion to quash heard on Monday, May 5. He was represented by court-appointed counsel.

The fact that the court appointed counsel to represent AK47 in a civil case suggests that Judge Droney realizes the important First Amendment issue in this case, and he does not want to wind up being the judge in a “bad case” because the party was incapable of making his arguments pro se.

Judge Droney did not rule on AK47’s motion yet. He did ask plaintiffs’ counsel to file a supplemental memorandum within one week on whether the court has subject matter jurisdiction. That memorandum is attached here.

All of the claims in this case are state law claims except the copyright infringement claim. It is upon that claim that the entire federal case hinges, and that claim is (at best) only valid against one defendant — and questionable (at best) against even that single defendant. If that claim vaporizes, the whole federal case might be dismissed.

The supplemental jurisdiction argument seems rather flimsy. Allegedly, someone took a photograph of one of the plaintiffs from a public website, where she had posted it, then uploaded it to a website called “hide behind.” Technically, yes, that is copyright infringement (unless it was fair use, an issue I will not spend my time analyzing at this point). Then, someone linked to those images from other websites.

Since the copyright in that image was not registered until after the infringement, the only damages available are actual damages or disgorgement of the infringer’s profits — no statutory damages nor attorney’s fees are available. Since we are talking about a personal photo, not a commercial image, nor are we talking about a photo used for profit, the “actual damages” from the copyright infringement are unlikely to be more than a token amount.

This case is not about copyright infringement. The “real claims” are appropriation of another’s name or likeness, unreasonable publicity, false light, intentional and negligent infliction of emotional distress, and libel. If those claims have any merit against any of the remaining defendants, then those claims are more properly litigated in state court.

The copyright claim seems to be a manufactured excuse to get this action into federal court. As the plaintiffs own attorney has written. “By mischaracterizing tort claims as copyright claims, plaintiffs seek to take advantage of a more favorable legal regime. This sort of gamesmanship is undesirable.” Rationalizing Internet Safe Harbors, Mark Lemley at 11.

A constructive way to deal with offensive anonymous speech

Princeton University students seem to have figured out that the cure for bad speech is good speech, not crybaby censorship or really stupid lawsuits.

Maybe they should send Yale the memo.

See Fighting Gossip With Graphics

AK47 Pwned

Excuse me while I greedily devour this slice of humble pie.

It appears that the statements made by the infamous “AK47″ were far worse, and more extensive, than those that appeared in the AutoAdmit complaint.

I have previously railed against AK47, but suggested that he should be outed by a bounty, rather than by a subpoena. See here.

It appears that Keker & Van Nest opened up the whup ass file in drafting this opposition to AK47’s terrible motion to quash. However, I must say that it was a whole lot of overkill. The same thing could have been accomplished in a one-line opposition “the issue is moot.” Apparently, AT&T has already outed AK47. Accordingly, the 29 page opposition is a bit puzzling.

My guess is that KVN must be using this case as a “training exercise” for its younger attorneys. Otherwise, I can’t see why they would be going to the wasteful lengths they have thus far.

If you want to see the dumbest thing ever done in litigation, feast your eyes on this letter that AK47 sent to the Plaintiffs’ attorneys.

Kentucky Fried First Amendment Rights

Rep. Couch

I won’t pick on the Commonwealth of Kentucky… even though doing so might be really easy. That would be an unnecessary cheap shot. I will, however, I will make fun of one Kentucky legislator.

Kentucky Representative Tim Couch filed a bill this week to make anonymous posting online illegal. The bill would require anyone who contributes to a website to register their real name, address and e-mail address with that site. Their full name would be used anytime a comment is posted.

If the bill becomes law, the website operator would have to pay if someone was allowed to post anonymously on their site. The fine would be five-hundred dollars for a first offense and one-thousand dollars for each offense after that.

Representative Couch says he filed the bill in hopes of cutting down on online bullying. He says that has especially been a problem in his Eastern Kentucky district. (source)

Yeah, I’m sure it is a big deal in Eastern Kentucky. At least Couch admitted this much:

Represntative Couch says enforcing this bill if it became law would be a challenge. (source)

Challenge #1, genius, you would have to amend the Constitution. The First Amendment protects an individual’s right to speak anonymously. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (“[A]n author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.”).

What this donkey also fails to remember is that without anonymous speech, there would likely be no United States of America. Neither Alexander Hamilton nor Benjamin Franklin affixed their names to their missives that fed the fires of the Revolution. If they had, they likely would have perished in the hangman’s noose, or in King George’s dungeons. The Federalists and Anti-Federalists alike were forthcoming in their political debates because they were shielded by their pseudonymity.

Someone buy this
for Rep. Couch

Today, political dissidents, corporate whistle-blowers, and other guardians of liberty are shielded by their anonymous nature. Without the ability to speak anonymously, the marketplace of ideas would feel a chilling wind blow through it, and more than a few members would close up shop.

Anonymous speech, if actionable, is not without consequences. Doe v. Cahill, a Delaware Supreme Court case from 2005, has been widely accepted as the blueprint for how to handle this issue. That case held that a plaintiff in a defamation action must provide evidence sufficient to overcome a motion for summary judgment before unmasking an anonymous speaker. That seems to adequately protect both anonymity and the reputations of those who are victimized by unfair attacks. Many courts have adopted a similar standard. The bottom line seems to be that if the plaintiff’s case is not completely frivolous, then he can get to the anonymous speaker’s identity.

So remind me again why we need another stupid law that would, if passed and enforced, smother a portion of our most cherished freedom?

Rep. Couch, you are our latest ass-hat.

AutoAdmit Update - Feministe Comments, Anthony Ciolli throws down the gauntlet

The Feministe blog made a supportable yet caustic (look who’s talking) attack on AutoAdmit poster and pseudonymous defendant, AK47. One of AK47’s arguments against his identity being revealed in discovery was that he wasn’t talking about anyone in particular when he made his nasty comments on AutoAdmit.

Jill Filipovic has this to say:

I think my favorite part is when AK47 says that the suit is frivolous and will probably be dropped, “but only after John Doe 21 is identified and humiliated on the internet and elsewhere.” Aww, poor baby — I’m playing the world’s tiniest violin for you, I really am. I know the prospect of being identified and humiliated on the internet must be just terrible for you. So I’ll offer you a compromise: Once you’re outed and your name gets attached to the various times you called people niggers and said women (with extremely common first names!) should be raped, I’ll only use your first name when I post about what should happen to you. Of course, I’ll first make a habit of using your full name on my blog so that everyone knows who you are by the time I decide your last name isn’t really necessary anymore, and I’ll post pictures of you and say where you go to school, and I’ll paint a picture of you as a disgusting and horrible human being who deserves to have something bad happen to him, but when I finally suggest that you should be punched in the face for being such a jackass, I’ll be sure to only refer to you as John, not John Doe. Therefore, you will have absolutely no reason to feel humiliated or threatened. (source.)

I have to agree with Filipovic. When I criticized his motion, I didn’t go into a lot of detail. Nevertheless, this was certainly his least persuasive argument. I can write all the hypotheticals I want about morons named George or philanderers named Bill — everyone knows who I am talking about.

Here is where it gets interesting:

Anthony Ciolli, a former defendant in that suit makes a very joins in the AK47 pile-on. Far from defending AK47’s speech — Ciolli attacks and condemns the pseudonymous defendant and calls for AK47 to be outed, but through private means.

Outing an anonymous speaker should be subject to a reasonable standard. The case law so far seems to be developing along just such a standard: Show that you have a real cause of action with some likelihood of success before unmasking someone, no matter how disgusting their speech may be.

Naturally, he is referring to the Doe v. Cahill standard, which has been supported in some form or another by all courts that have considered the anonymous speech issue.

Ciolli then notes that the very issue of anonymous speech was at the center of a tiff on the Feministe blog between pseudonymous blogger Zuzu and professor Ann Bartow. Link to tiff here. Apparently Bartow did not appreciate being the subject of Zuzu’s criticism so she threatened her with legal action.

After pointing out that the Plaintiffs in the AutoAdmit case might have a moral gripe, but not a valid legal claim, Ciolli offers a solution worthy of a young conservative: Let the market out AK47.

A smarter way to handle this would be through private action. A few weeks ago, a lawyer offered a $15,000 bounty for the identity of the author of the Patent Troll Tracker blog. I saw no legal basis for that unmasking, but if someone wanted to rat him out for $15K, I saw nothing wrong with that either. FYI - it worked.

Why doesn’t Feministe offer a reward for the identities of some of the worst posters? You seem to have lots of fans, most of whom agree that at least some of these trolls should be outed. Pass the hat, create a reward fund, and watch AK47’s friends turn on him. Then you can splash his name from one end of the internet to the other, and let society (and future employers) judge him for his speech.

That method would a) not create bad precedent that could cause unintended consequences, b) preserve the First Amendment, c) be a lot more fun.

Wouldn’t you rather see him betrayed by a friend than pried from his rock by a court? Even if you aren’t motivated by constitutional concerns, isn’t that method just so much more poetically satisfying? (source)

Putting his money where his mouth is, Ciolli offered to pony up the first $100.

Not only does that sound reasonable, but it seems that Feministe and Ciolli have found some common ground. That bodes well for this being a good-karma day.

Update: Sadly, Feministe has turned down Ciolli’s proposal.