Post updated here.
The mainstream media has noticed that something is amiss in Steubenville, Ohio. (Rape Case Unfolds on Web and Splits City).
And Jezebel gives credit where it is due — to a blogger who refused to let the story die. (We Wouldn’t Know About the Steubenville Rape Case If It Wasn’t for the Blogger Who ‘Complicated’ Things).
I won’t comment beyond my earlier post on the case, because I have been brought in to help defend the blogger.
SLAPP suits are never pretty.
This one is particularly troubling.
A blogger, Alexandria Goddard, wrote about the incident. Naturally, she was outraged. She wrote another post, in which she also provided a copy of a photo, allegedly taken (or merely transmitted) by a Cody Saltsman.
Saltsman has not been charged with a crime. He denies, under oath, being at the party at all.
Nevetheless, the comments sections in Goddard’s blog lit up with negative opinions of the young man.
So his parents sued for defamation. (source)
Cody Saltsman and his parents, James and Johna Saltsman, filed the lawsuit through their attorney, Shawn Blake, seeking an injunction to force Alexandria Goddard of Columbus, who runs the blog site prinniefied.com, to remove alleged false and defamatory statements from the blog site. The Saltsmans also are seeking monetary damages in excess of $25,000. (source)
On Friday, the judge gave the plaintiffs the right to issue subpoenas to ascertain the identities of the 15 pseudonymous defendants. (source)
Jefferson County Common Pleas Judge David Henderson Thursday said attorney Shawn Blake can issue the subpoenas but the people whom Blake is trying to identify have the right to file their own motion to quash the subpoena.
The judge said Goddard, if she knows the identity of the annonymous people, should notify those people of the pending discovery and tell them they have 14 days to file a motion to stop the subpoena and the information being released that will make their identity known. The judge said the Internet providers who will be subpoenaed also should notify their customers of the pending discovery. (source)
For the most part, the defamation claims are off the mark. In the initial complaint, Goddard had a clean Section 230 defense. Since then, the plaintiff filed an amended complaint, which at least tries to plead around Section 230.
As far as the comments go, the majority of them appear to be non-actionable on their face. Review the amended complaint. Some of them, without knowing all the facts, might be capable of a defamatory meaning. For example, some of them accuse the kid of being the “ringleader.” That might be an issue, depending on the actual provable facts. On the other hand, some of them are downright silly to include in a defamation complaint.
Regardless, it seems like Saltsman will have some difficulty in this case (after all, the photo above seems to confirm some of the negative comments). I suppose he may have merely come into possession of the photo from someone who was there, rather than taking it himself, but it seems like a fair comment to presume he was there if he was tweeting and distributing the photo. I don’t see how he can deny that he was joking about it with his buddies on Twitter (unless all of the tweets and photos are part of an elaborate fabrication). I’m really not sure what else you could say about someone to damage their reputation further after you have those facts established.
Sickcrimes blog sums up the allegations for us here:
A girl was raped by at least two football players in Steubenville, Ohio and the act was photographed and/or filmed by several other teens at the scene of the crime. Did they try and stop the two fucknuts? Hell, no. Did they report the heinous act? What do you think? What they DID do was post about it on Facebook, Twitter and Instagram.
I am really not sure what you can say about a kid that would be more damning than that. Yes, some of the statements might be false statements of fact. But, even if they are, Mr. Saltsman comes to the case with a reputation already colored by his actions after-the-fact. Is it worse to say he was the “mastermind” of the rape? Yes. Is it worse to say that he “orchestrated” the rape? Yes. But, it is sort of like The Dude’s car in The Big Lebowski. When he finds it in the impound lot, it has been crashed, and a vagrant used it as a toilet. Is it really all that much worse when it finally gets blown up?
If the photo above is authentic, and not a complete fabrication, then this guy might have bigger problems than whether someone said something mean about him on the Internet. He certainly has some pretty foolish people advising him. Had he never filed this lawsuit, he would have gone off to college, everyone would have forgotten about it, and that would have been the end of it.
Now, at the very least, he breathed all kinds of new life into the story. At worst, the defendants might have to prove the truth of the matters asserted in their statements. If they can’t do so, and lets just say (for the sake of argument) that Saltsman wins the defamation suit, then what? He’s still the guy who kept photographic momentos of a gang rape and who joked about it on Twitter.
Anonymous has now targeted Hunter Moore.
In a release published today, Anon writes:
Greetings citizens of the world, We are Anonymous.
This is a call to all Anonymous worldwide, you have a chance to make a real difference in the lives of hundreds of bullied teenagers and protect them from real harm such as rape or stalking.
Hunter Moore, Founder of previous revenge pornography site http://www.isanyoneup.com is coming back stronger than ever from the shutdown of his previous website. This capitalist makes money off of the misery of others.
People submit pictures of others naked to his website and he posted their social networking profiles along with the pictures.
This time he is taking it a step further and plans to list physical addresses next to the victims pictures along with a map to their house, self proclaiming that he has singlehandedly enabled the stalking of hundreds.
His servers are up. he already has domains he is secretly testing and will go public soon. He hides behind a loophole of section 230 of the United States online decency act which states he cannot be held legally accountable for third party submitted content.
This is a call to all of anonymous. We Will hold hunter moore accountable for his actions, we will protect anyone who is victimized by abuse of our internet, we will prevent the stalking, rape, and possible murders as byproduct of his sites.
Operation Anti-Bully. Operation Hunt Hunter engaged. We are Anonymous, we are Legion, we do not Forgive, we do not Forget, Hunter Moore, EXPECT US. (source)
I applaud them for it. I do have one issue with the missive — I don’t think that Moore is as protected by Section 230 as he likes to believe.
But, lets set the legal issues aside for this post: Moore is a douchebag, and deserves everything that Anonymous may throw at him. Here’s why:
Once upon a time, girls weren’t all paranoid about being raped, having shit slipped in their drink, or being stalked. Then, douchebags discovered rohypnol, stalking, etc., which ushered in a new era of “Why has this asshole just showed up at my table with a drink in his hand? Does he think I’m an idiot?”
Now, thanks to these clowns, you need to convince the girl that she should have sex with you AND that you’re not going to rape her or cut her into little pieces. Girls who were once approachable are scared to death to even have a conversation with you in a bar. All because of douchebags who need to circumvent rejection with drugs. And stalking. Lots and lots of stalking.
The douchebag’s MO is to shit out a cloud of fear. That cloud of fear supports an ecosystem that only benefits two kinds of people — other douchebags and second-wave feminists who absolutely love women in fear, because it makes their bullshit message resonate with just enough terrified women to keep a few of them signing up for their classes. Never forget the best way to control behavior is through FEAR. Just like the TSA, fear creates a justification for existence. There is the implied message of “If you challenge me, I’ll fucking spank you, so you better choose wisely.” But, if you take away fear, the assholes evaporate.
Involuntary Porn sites (like those run by Hunter Moore, Eric Chanson, Craig Brittain, and Chance Trahan) are the online equivalent of the asshole who goes to a bar with roofies in his pocket, or who stalks a girl who won’t give him the time of day. They punish all women through fear because they got rejected by their high school prom date or some chick in a bar or…whatever. They get off on the smell of fear and the resultant power over a woman and this is the drug that gives them the warm tinglys.
Imagine if no women had to live in fear of a shithead ex-boyfriend or these dickless fucks. Forget the morality of what they do, if you want, and think about from a purely utilitarian / economic perspective. Without these nimrods, a woman would always feel comfortable letting you take naked pictures of her. Women would feel comfortable sending you those pics as a “hey good morning” present. More naked pictures of girls means a better world for everyone, in my humble opinion.
Real men don’t get off on scaring women. Real men get off on trying to take that fear away.
Not because we are nice, or chivalrous. OK, some of us are, but more importantly, it’s because we want more naked pics and Hunter More and Craig Brittain are fucking with that.
So fuck you, Hunter Moore. Fuck you, Eric Chanson. Fuck you, Chance Trahan. And Fuck you, Craig Brittain.
Any man who gets off on putting women in fear loses his man card.
Good hunting, Anonymous.
A court in the Northern District of Illinois recently concluded that accusations that an internet service provider might have falsified an account in order to leave comments anonymously cannot survive a motion to dismiss.
In Hadley v. GateHouse Media Freeport Holdings, a county board member filed a complaint against the publisher of the Journal-Standard for allegedly defamatory remarks made in the comments on its website. 2012 WL 2866463 (N.D. Ill. 2012). The plaintiff stated that under an article published by the Journal-Standard, a person using the name “Fuboy” posted the comment: “Hadley is a Sandusky waiting to be exposed. Check out the view he has of Empire from his front door.” Id. The defendant cited to the Communications Decency Act, reasoning that because it is an internet service provider, it is immune from liability for statements posted on its site that cannot be attributed to it. Id.
The plaintiff countered in his opposition, however, that it is possible that “Fuboy” was actually a creation of the defendant used as a proxy to convey the information anonymously. Id. The court rejected this argument, saying that, not only was this allegation not included in the complaint, but claiming this was “sheer speculation,” and the accusation was not enough to survive a motion to dismiss. Id. For those reasons, the court dismissed the complaint against the Journal-Standard.
The decision is fairly short and to the point, leaving no room for speculation about why the plaintiff might have made this allegation in its opposition to the motion to dimiss. But Hadley also failed to allege that the newspaper created the comments in his complaint, leading one to believe that the accusation was not grounded in any proof. It seems that the plaintiff’s counsel were engaged in some creative lawyering in an attempt to work around 47 U.S.C. § 230. Although no doubt publishers may have created screen names in an attempt to leave anonymous comments in the past, it is few and far between. Additionally, such an accusation would need to be properly pleaded in the complaint.
This decision shows once again that Section 230 is a powerful tool for Internet service providers.
By J. DeVoy
This blog often features articles on developments in § 230 of the Communications Decency Act, or the Digital Millennium Copyright Act, but the significance – and nuance – of such rulings may not be immediately appreciable to many readers. Hopefully such posts are helpful to lawyers. However, they are important to non-lawyers and even only casual users of the Internet. In order to provide retroactive context to those articles and background for future ones, we provide this brief history of Internet-related laws.
In the two decades since the Internet reached large-scale consumer adoption, its role in business, recreation and every facet of life has been largely taken for granted. However, it interacts with the law in a number of ways that some might not expect. With services such as Google, Facebook and YouTube thoroughly integrated with every facet of life – with established brands as banal as Tide laundry detergent vying to be “liked” by you on facebook, to political campaigns posting videos directly to the user-generated video site – that it is easy to overlook the patchwork of federal law that allows the internet to operate.
Federal law embraced the internet with some of its existing measures, such as the Cable Privacy Act of 1984, 47 U.S.C. § 551 (requiring cable companies – which have today become internet service providers including Time Warner and Comcast – to provide notice to subscribers before turning over personally identifying information pursuant to a lawful subpoena). This law remains particularly significant in protecting anonymous activity and speech online, ranging from blog comments to the use of BitTorrent – all of which can be done without behind an IP address until the user’s internet service provider is subpoenaed and provides notice to its customer that his or her personally identifying information will be produced unless the subpoena is quashed.
Criminal law has also been instructive in shaping the law of the internet. The Stored Communications Act, 18 U.S.C. §§ 2701-2712, prohibits service providers such as Google and Facebook from turning over users’ passwords and internal messages (such as messages and chat logs from one Facebook user to another) without a court order. Additionally, hacking – a topic given great attention in the 1990s, but still persisting today – was made punishable with both criminal and civil penalties by 18 U.S.C. § 1030.
Perhaps the greatest tool of all for the internet, though, has been Section 230 of the Communications Decency Act, 47 U.S.C. § 230. Section 230 immunizes service providers like Yahoo and Google for the acts of its users. When someone opens a blogspot blog that allegedly defames someone, it is not Google’s fault – rather, liability falls on the shoulders of the blog’s author. Similarly, message board operators are not liable for the torts of their users who may post tortious material to the website. If they were, services such as Yahoo’s finance message boards and (unintentionally hilarious) Yahoo Questions would have never taken off. This protection is not vitiated if a web service edits or deletes a user’s submission. 47 U.S.C. § 230(c)(2).
While courts have consistently upheld § 230’s protections for online service providers, the law has not been an absolute shield. Where a site creates its own content that is tortious, then the service can be held liable. Similarly, if the site requires a user to post tortious material as a condition of using its service, then the site is not afforded § 230 protections. Fair Housing Counsel v. Roommates.com LLC, 521 F.3d 1157, 1166 (9th Cir. 2008) (“By requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-populated answers, Roommate becomes much more than a passive transmitter of information” and thus not entitled to § 230’s immunity). For pure social media sites, § 230 provides valuable immunity against litigation from angry parents and the thin-skinned. In states with strong anti-SLAPP statutes, § 230 has worked in tandem with these laws to create a fortress around internet companies, protecting them from common law claims and requiring parties with attorneys foolish enough to bring these claims to pay the companies attorney’s fees in most cases. (California and Seattle, where numerous social media companies are based, allow defendants to recover attorneys’ fees incurred in successful anti-SLAPP motions).
There is, however, one hole in § 230 – it expressly does not apply to intellectual property claims. 47 U.S.C. § 230(e)(2). Thus, online service operators were potentially liable for hundreds of thousands of dollars in damages if their users copied and distributed copyrighted content on their sites. In 1998, however, Congress enacted the Digital Millennium Copyright Act (“DMCA”) to combat this problem. 17 U.S.C. § 512. Within this legislation, Congress granted certain entities, such as internet service providers, immunity from infringement as transitory networks where the infringing data does not reside – but it imposed burdens onto both web hosts, web sites and even right holders.
For most self-hosting bloggers and other internet users, the DMCA is fairly straightforward. The service provider must register an agent to receive DMCA notices with the U.S. Copyright Office for $105, which is listed in an online registry of DMCA agents. When receiving a proper DMCA take-down notice under 17 U.S.C. § 512(c)(3)(A), the service operator must remove the infringing content within a reasonable period of time, or risk being held liable for infringement. The DMCA take-down process requires rights holders to seek out instances of infringement and send notices to infringers, but unlike a lawsuit for infringement, does not require the right holder to obtain a copyright registration certificate (or, in some circuits, merely an application).
While many small website operators do not comply with the DMCA, rights holders often send DMCA-compliant take-down notices, which are honored with the removal of allegedly infringing content. For large services that stake their entire existence on user-submitted content, however, complying with the DMCA becomes remarkably more complicated. For a service such as YouTube (or, more in your author’s practice area, a “tube site” containing pornography) the DMCA takes no complex new dimensions that are still unsettled despite the DMCA being more than a decade old, and the user-generated segment of web entertainment not being significantly younger.
For instance, the Second Circuit’s recent decision in Viacom v. YouTube, vacating many of the Southern District of New York’s 2010 conclusions about how the DMCA operates, has created significant uncertainty about the meaning of 17 U.S.C. § 512(c)(1). For a service such as a large “tube” site, particularly one that monitors its submissions to avoid unlawful or inappropriate content, there is a question as to what is required in addition to a DMCA take-down notice to constitute “actual notice” of infringement, or “facts or circumstances from which infringing activity is apparent.” Id. The Second Circuit’s decision also re-opens the question of what constitutes the “right and ability” to control infringing material: Namely, whether this standard is contiguous with the same standard articulated in the doctrine of vicarious copyright infringement, or subject to a different, DMCA-specific standard as previously found by the Southern District of New York (requiring “specific knowledge” of infringement in order to have the right and ability to control it).
The DMCA contains additional twists and turns for both service operators and rights holders. If a service provider has users who consistently engage in copyright infringement, it must ban them in accordance with an established, publicized policy to terminate these repeat infringers. 17 U.S.C. § 512(i). Additionally, there is a question as to what constitutes an effective termination – while banning by e-mail address may satisfy the procedural requirements of this provision, the ease of creating new e-mail addresses ensures that this action would fall short of substantively fulfilling it. Service operators must also act as an ombudsman for counter-notifications seeking the reinstatement of non-infringing content under § 512(g)(3).
For right holders, fair use of the copyrighted work must be considered before sending a takedown notice. § 512(c)(3)(A) (requiring “good faith belief” of infringement and signing of notice under penalty of perjury). Failing to satisfy this requirement, or sending a DMCA take-down notice that is otherwise improper – such as to remove critical, non-infringing material, or to assert the rights of a third party who the notice-sender does not represent – makes the misrepresenting notifier liable for the uploader’s damages, costs and attorneys’ fees under § 512(f). (Similarly, a misrepresentation in a § 512(g) counter-notification also triggers the penalties of § 512(f)). Counterbalancing this restriction, though, is the right holder’s power to issue a federal subpoena under § 512(h) – again, without even a copyright registration – in order to identify an infringer. While this provision of the DMCA is infrequently used, the jurisprudence of § 512(h) is a fascinating sub-topic for another time.
However, the DMCA provides no protection for trademark infringement committed by a third party. While proposed laws like PIPA and SOPA addressed the full theater of potential intellectual property infringement, the DMCA protects only against copyright infringement liability. Thus, a novel theory from plaintiff’s attorneys is that a third party’s use of a trademarked name in an internet posting constitutes trademark infringement and unfair competition under 15 U.S.C. §§ 1114 and 1125. While this is a frivolous claim to bring against a service provider, it can be pled to avoid a motion to dismiss in jurisdictions without robust anti-SLAPP statutes that allow for the inclusion of evidence in anti-SLAPP motions. This leads to summary judgment and, in many cases, settlement – a detriment to the companies falling prey to these questionable suits.
Acting in conjunction, federal criminal, telecommunications and copyright law has created an ecosystem ripe for enormous online commerce. Without these laws, the multi-billion dollar companies that dominate the internet likely would not exist. While the ecosystem is still in flux, and will be as both technology and IP laws change, services such as Facebook, YouTube, Pinterest and Tumblr are here to stay.
By J. DeVoy
Earlier this week, Facebook announced its $1B acquisition of hipster staple Instagram. Everywhere you look, social media companies based on seemingly fragile social momentum are receiving gigantic valuations and making initial public offerings. Zynga has $8.8 billion in market capitalization – it’s best known for FarmVille, brogrammers and abusing trademark law. Groupon has lost more money than many firms will ever see, yet IPO’ed, reifying billions of dollars of wealth for shareholders.
Yet California does not have a monopoly on tech. In fact, California is absurdly expensive. Nevada, in contrast, is dirt cheap. And, based on the success of firms like SirsiDynix and Adobe in Utah – seriously, Utah – it’s clear that Silicon Valley does not have a stranglehold on programming and tech manpower. For all but the most elite developers, young workers will go where the work is – and even then, they will pursue the most challenging opportunities.
But this raises the question of why, exactly all of these wildly successful social media companies started in California. What is it about California? What is so profoundly different about the state that gives it a monopoly over these companies?
Maybe it’s one of the country’s best, oldest and most litigated anti-SLAPP statutes?
I know how much we like to wax poetic about the importance of 47 U.S.C. § 230 on this blog, and write about how liberating compliance with the DMCA is. But the reality is that if some unethical shithead wants to try to grab some cash from your pocket, he/she can and will sue you on utterly frivolous grounds – and if it happens in a state without a good anti-SLAPP statute, and especially a hellhole like Florida or New York, you’re going to just have to grin and eat the costs of proving, for the eightieth time, that the Roommates.com case and its § 230-vitiating FHA violations are in fact an extreme outlier.
That is, unless you live in a state like California with a kick-ass anti-SLAPP statute. Among others, I would include Washington, Oregon and Texas on the list of states with a good anti-SLAPP statute. I think, too, that Nevada can and should be one of these states.
There’s some really good stuff in Nevada’s anti-SLAPP statute. In October 2011, I wrote about the following provision, which gives a slight testosterone injection to California’s fee-shifting regime:
Reasonable attorneys’ fees are awarded independent of the Court’s discretion, and the prevailing anti-SLAPP movant has his own cause of action for compensatory damages, punitive damages, and attorney’s fees. (source)
However, this is all meaningless if it applies only to expression made to a governmental entity. If this statute is going to have teeth and apply to social networking services that are wrongly sued for third parties’ postings on them, the range of protected expression must be drawn more broadly. California and Texas provide some good examples of how to define this.
While Zynga, Groupon, Facebook, Google and many others that have yet to publicly reveal their wealth are Delaware Corporations, they all do business in California – and are protected by Cal. Code of Civil Procedure 425.16. Broad First Amendment protections. Mandatory fee shifting for a successful motion. Washington and Seattle-based Avvo Inc. are shaping up to be a similar success story, and a longer post about their recent anti-SLAPP victory is forthcoming.
An anti-SLAPP statute is not the cure-all for Nevada’s drive to diversify its economy, attract new businesses and encourage diversification. California’s (and specifically the bay area’s) success in social media is attributable to numerous covariants including an entrenched, educated and highly skilled workforce, fed by CalTech, Stanford and UC Berkeley. Silicon Valley is also host to a surfeit of venture capital and private equity firms; needless to say Las Vegas is not. However, flying from Las Vegas to SFO is at most a proposition of $200 and… 90 minutes? possibly less? This is hardly a barrier to innovation and financing.
The cynic in anyone who understands markets is that the latest tech bubble (perhaps more accurately, the social bubble) is exactly that – an inflated payout for the investors in these services. But good for them – they got paid, and you’re reading this blog. Who’s the idiot now? Regardless of how absurdly overvalued some of these services seem and doubtless are, billions of dollars in paper wealth are being created – and Nevada can capture some of it by making a small but important change to an existing law. Making Nevada a hospitable place for social media ventures will create or attract jobs to Nevada, especially economically battered and casino-reliant Southern Nevada, and enrich those companies’ employees. Like the Canadians in the South Park episode “Canada on Strike,” Nevadans must stand up and scream at their representatives: Give us Internet money!
As a tourism mecca, Las Vegas knows a lot about getting the world’s ultra-wealthy to leave a lot of their money here. By providing sufficient protections to new media businesses, the same dynamic can play out with the rich investing in new businesses, rather than a blackjack table.
(I have nothing against blackjack.)
Connecticut Sen. Joe Lieberman, who is not particularly known for his friendliness toward the First Amendment, is at it again. As chairman of the Senate homeland security committee, Lieberman urged Twitter to stop hosting pro-Taliban tweets last fall, in addition to persuading Internet companies to remove blog posts that promote terrorism.
It appears he’s now taking the idea one step further by proposing an amendment to section 230 of the Communications Decency Act. (Source.) Section 230 (47 U.S.C. § 230) grants immunity to Internet Service Providers from being held liable for the comments of third parties to their websites. Basically, it’s what shields review sites like TripAdvisor or Yelp from butthurt business owners holding them liable for disgruntled third parties’ reviews. It is also what allows all of you to say whatever you want in the comments without The Legal Satyricon being taken to task for it (legally).
However, Lieberman’s proposed amendment would change that. The new language reads:
“No A provider or user of an interactive computer service shall may be treated as the publisher or speaker of any information provided by another information content provider.”
Although Lieberman is touting this amendment as an anti-terrorist effort, this action will have a chilling effect on all forms of Internet speech. Service providers from Comcast to Consumerist may now be treated as publishers to content posted to their websites. This opens up the possibility that review sites and others that rely on third parties for content will be held responsible for those very same deranged, sub-literate contributions. Lieberman’s proposed amendment will have a chilling effect on free speech, as any site that does not want to drown in legal bills likely won’t accept anonymous comments. If you’re a sissy with paper-thin skin or an obsession with “bullying,” rejoice, I suppose.
Long before the rise of the Internet, anonymous speech has provided an outlet for those who wanted to make their voices heard, but were unable to so for fear of retaliation. The issue of anonymous speech was discussed in great detail in McIntyre v. Ohio Elections Committee, which involved a woman who handed out unsigned political leaflets that opposed a tax levy. The Supreme Court held that such speech was protected:
“Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority.”
Needless to say, inhibiting anonymous speech is an attack on this right in gross. It will be a grave day if this amendment succeeds. Although anonymous speech on the Internet is not always
the most intelligent, it still has its place in public discourse – for me to poop on. Civil liberties should not be victims in the attempt to curb terrorism, yet we have already succumbed to the Scylla and Charybdis of the TSA and NSA in entrusting our rights to the benevolent government. At this point, what’s one more right ceded to the security theater’s alphabet soup?
UPDATE: It used to suck. However, Governor Sandoval signed SB 286 into law, and therefore, now Nevada’s anti-SLAPP statute is awesome. See post here.
By J. DeVoy
Nevada is something of a curiosity in terms of litigation and its laws. It has nearly comprehensive regulations for brothel operation, yet very little binding precedent. I recently did some broad research on receivership of a Nevada company for a public filing, and netted fewer than a half-dozen cases – in both federal and state courts – in the state’s entire history. This has been common among most legal issues in Nevada. Compared to other states, Nevada does not have much precedent going for it. Consequently, legislative history in Nevada is heavily emphasized in the courts and especially on matters of first impression – which arise far more often than one would believe.
Another twist on law practice in Nevada is that the state desperately tries to differentiate itself from California – despite adopting many California tests with respect to spousal asset division. So it is not surprising that Nevada’s anti-SLAPP statute is a pathetic shadow of California’s.
Nevada’s anti-SLAPP laws are found in NRS 41.635-70. They aren’t all bad, either: The attorney general may intervene on behalf of a SLAPPee and file a special motion to dismiss under the anti-SLAPP law. NRS 41.660. The special motion is treated as a motion for summary judgment – operating as an adjudication on the merits – and discovery is stayed while it is pending. Id. The statutes requires the court to award reasonable attorney’s fees to the prevailing anti-SLAPP movant, and creates a separate cause of action for the prevailing movant, allowing him or her to bring an action for recovery of compensatory and punitive damages, and attorney’s fees in that action, against the SLAPPer. NRS 41.670.
Here’s the rub: The statute can only be used against cases designed to silence “good faith communication in furtherance of the right to petition.” NRS 41.660(1). Good for Nevada to protect political speech and all, after its been established in everything from Connick v. Myers and Boos v. Barry to the “God Hates Fags” case (Snyder v. Phelps) to be the most important type of speech one can make, but there are a lot of qualifications in that sentence. What is a ”good faith communication in furtherance of the right to petition”? NRS 41.637 has the answer:
“Good faith communication in furtherance of the right to petition” defined. “Good faith communication in furtherance of the right to petition” means any:
- Communication that is aimed at procuring any governmental or electoral action, result or outcome;
- Communication of information or a complaint to a Legislator, officer or employee of the Federal Government, this state or a political subdivision of this state, regarding a matter reasonably of concern to the respective governmental entity; or
- Written or oral statement made in direct connection with an issue under consideration by a legislative, executive or judicial body, or any other official proceeding authorized by law
which is truthful or is made without knowledge of its falsehood.
While this is important speech to protect, finding a case where it can be used is like threading a very small needle. It is also a bit discouraging that Nevada had to make it clear to its citizens – and mostly its political operatives and public officials – that such conduct is disallowed.
Broadening the scope of Nevada’s statute would still encompass these types of speech. But it would make the anti-SLAPP useful for actually preventing SLAPP suits. Nevada did introduce its anti-SLAPP statute in 1993 and last amended it in 1997, before the dawn of mass internet access era (where every petty asshole with $500, delicate sensibilities and a desperate or unethical lawyer is a defamation plaintiff), which explains the limited view of “public participation.”
Nevada’s anti-SLAPP statutes have some very good provisions. The SLAPP defendant can move on his or her own, or the AG can intervene (largely because the cases are explicitly political under the current regime). Reasonable attorneys’ fees are awarded independent of the Court’s discretion, and the prevailing anti-SLAPP movant has his own cause of action for compensatory damages, punitive damages, and attorney’s fees. While that’s not quite as iron-clad as California’s bond requirement, that’s pretty impressive. But the scope of application is just pathetic. California’s anti-SLAPP statute covers any “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue,” which includes:
(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law,
(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,
(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or
(4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
Would it kill Nevada to integrate C.C.P. § 425.16(e)(3) and (4) into NRS 41.637? Mindful of California’s creeping influence in Nevada, there is not a reason to borrow strictly from that state when plenty of others have good anti-SLAPP statutes. Oregon and Washington have them as well. More analogous to Nevada in character is Texas, which recently unleashed its own anti-SLAPP statute protecting:
1. the right of free speech
2. the right to petition; or
3. the right of association
Tex. Civ. Prac. and Remedies Code § 27.005(b). Expansive and detailed definitions of what these terms embrace can be found in Tex. Civ. Prac. and Remedies Code § 27.001. An overview of the new Texas law is available at the Citizen Media Law Project.
There are good models for Nevada to draw from in enhancing its anti-SLAPP statute without blindly deferring to California. I will readily admit that Nevada is not a first-teir state like California, New York or Massachusetts (the latter two of which have mediocre-to-abysmal anti-SLAPP statutes), but it is a global and national tourism destination. Why should the state compete only to be the best in hotels and gambling, especially when Macau’s rise threatens that position? Nevada can compete in other areas as well, including the laws it enacts. Nevada already has a business-favorable legal climate – why not a speech-favorable one as well?
It is not seriously disputed that SLAPP suits arise from all sorts of things other than speech about pending government issues. Website owners or administrators covered by 47 U.S.C. § 230 get sued for third parties’ statements and must pay the cost of defense. Whiny, entitled olds constantly sue people for commenting – often accurately – on their own disgusting or unlawful public deeds. Yet, the victims of those suits must bear the cost of defense because their speech did not relate to some pending agriculture bill.
While copyright infringement is of a different genus than defamation, one must wonder whether the 200+ Righthaven lawsuits filed in Nevada would have been resolved differently if the state had a stronger anti-SLAPP statute. Many of the defendants used the news articles in question to discuss political events, or public interest items; in fact, the District of Nevada has never denied a properly raised argument that the defendant’s use of the content was non-infringing fair use. Combined with Righthaven’s problems with standing, as Courts have repeatedly held that it did not have sufficient rights to sue, what other purpose could its lawsuits serve? If the statute were more broadly constructed, it could have challenged these sham copyright lawsuits – requiring Righthaven to pay the victorious defendant’s attorneys’ fees and giving the successful movant a new cause of action against Righthaven, allowing the plaintiffs’ bar to jump in the fray. (Query whether Righthaven would pay any such judgments.)
To broaden the scope of the anti-SLAPP statute, some compromises may have to be made. The separate cause of action might have to be scrapped in favor of the SLAPP filer simply having to post a bond for the anti-SLAPP movant’s fees, which would be awarded upon a successful motion. Perhaps a Texas-style “loser pays” model would be approached. The provision allowing the Nevada Attorney General likely would have to be scaled back to apply only in political cases (rather than general matters of public interest) so as to avoid issues with the government picking sides. Perhaps none of these things would have to change. The scope of protection, however, absolutely must. As it stands now, Nevada’s courts are begging to be used as an abusive litigation hell-house against those who dared to speak freely.
By J. DeVoy
In a decision from the U.S. District Court for the Northern District of California, Yahoo’s spam filtering of its e-mail addresses is a valid exercise of its power as a content provider under 47 U.S.C. § 230, better known as § 230 of the Communications Decency Act, or simply § 230. The case is Holomaxx Technologies v. Yahoo!, Inc., Case No. CV-10-4929-JF. The Court’s order, available here, was reached after Yahoo moved to dismiss the claims against it under 12(b)(6), with § 230 serving as an affirmative defense – and basis of the motion – on claims three through six.
The court addressed two main issues:
Whether the court could consider Yahoo’s affirmative defenses – Because Yahoo filed a Rule 12(b)(6) motion to dismiss, Holomaxx challenged the Court’s authority to consider Yahoo’s affirmative defenses, specifically those arising from § 230. The court agreed with Yahoo that affirmative defenses under the Communications Decency Act can be raised at the 12(b)(6) phase and be used to defeat claims brought against the defendant, so long as they are raised in the Complaint and readily ascertainable from its allegations. Goddard v. Google, Inc., 640 F. Supp. 2d 1193, 1200 n. 5 (N.D.Cal.2009); Langdon v. Google, Inc., 474 F .Supp 2d 622, 630-31 (D.Del 2007); see also Jones v. Block, 549 U.S. 199, 215 (2007). Thus, as the claims against Yahoo naturally invited a defense under § 230 of the Communications Decency Act, the service provider was entitled to raise them as affirmative defenses that negated the plaintiff’s claims in a 12(b)(6) motion to dismiss.
Whether § 230 provides immunity for e-mail spam filters – As there is little question that Yahoo offers an interactive computer service, the court’s inquiry turned to whether Yahoo blocked or filtered material it found “to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable,” and did so in “good faith” as required by statute. Holomaxx contended that its e-mails were normal business communications that did not fall within these categories. Furthermore, because of the association of “harassing” and “objectionable” with the other terms – “obscene, lewd, lascivious, filthy [and] excessively violent,” – Holomaxx contended that its e-mails were not harassing or objectionable merely because they were unwanted.
What constitutes “objectionable” content under § 230 is largely undefined by the courts at this point. Precedent from the Northern District of Illinois suggests that much deference should be lent to the service provider’s subjective understanding of what is “objectionable” under the statute. e360 Insight, LLC v. Comcast Corp., 546 F. Supp. 2d 605, 608 (N.D. Ill. 2008). Yahoo produced evidence that approximately 2 million e-mails each year were sent by Holomaxx to invalid e-mail addresses, or resulted in an opt-out by the end-user, even with Yahoo’s filtering in place – a number that would have been higher without spam protection.
The inquiry then turned to whether Yahoo took such measures in good faith. Holomaxx alleged that Yahoo acted in bad faith, but failed to plead – or produce evidence showing – that Yahoo acted with an absence of good faith. In failing to produce any evidence on this point, Holomaxx failed to meet its evidentiary burden and could not show Yahoo acted with the absence of good faith that is prohibited by § 230. Moreover, Holomaxx failed to establish Yahoo’s duty to discuss its reasons for blocking Holomaxx’s mail, or provide a remedy for such blocking, because no such duty exists – its imposition would be a disincentive for the development of blocking and filtering technologies inconsistent with § 230(b)(4).
The court therefore dismissed these claims against Yahoo, though giving Holomaxx the opportunity to amend its Complaint and cure these deficiencies – a task Holomaxx may not be up to, given court’s ruling. Indeed, the court specifically noted that Holomaxx needs “significantly greater factual detail” to sustain these claims.
The takeaway from this case is the expanded understanding of what content is “objectionable” under § 230, which appears to be almost any kind of communication as long as a meaningful, harmful effect can be shown. One person’s whine does not establish harm, but 2 million spam e-mails a year, which reach dead addresses or are greeted with an opt-out, crosses the threshold for what is “harassing” or “otherwise objectionable.”
Representative Steve Cohen (D-TN) represents the people of Memphis, TN. His district also includes Graceland. That can’t be a coincidence, because he is the Congressional King of Free Speech legislation.
Cohen sponsored HR 2765, the Libel Tourism bill, and Obama signed it into law on Tuesday. The new law now protects Americans from defamation judgments that plaintiffs might obtain abroad — in countries where free speech receives less protection than it does in the USA. The need for such a law arose back when American author Rachel Ehrenfeld wrote a book, “Funding Evil: How Terrorism is Funded and How to Stop It,” and published it in New York. A Saudi, Khalid Bin Mahfouz, did not appreciate how he was portrayed in the book — as a major financier of terrorism. He filed suit in the U.K., and based on the sale of 23 copies sold in England, the U.K. court exercised jurisdiction over Ehrenfeld. She refused to appear, so the judge entered a default judgment against her for $225,000. (source)
There is a reason that Bin Mahfouz chose to file suit in the U.K. Britain’s libel laws are very favorable to plaintiffs, and they don’t have a pesky First Amendment
Bill of Rights to get in the way of wealthy plaintiffs attempts to trample on others free speech rights.
Bin Mahfouz is one of the world’s most notorious libel tourists, having used or threatening to use plaintiff-friendly British courts to sue for libel at least 36 times since 2002. (source)
The next time Bin Mahfouz decides to sue an American in the UK, he is going to need to obtain the judgment by getting the UK court to impose First Amendment protections as well as Due Process considerations.
But wait, there’s more. Our heroes over at Public Citizen lobbied for an additional measure to be added to the bill. The bill also provides new strength to Section 230.
The discussion on the floor just before passage recognizes the need to extend section 230 protection because, otherwise, plaintiffs are tempted to try to suppress speech “by suing a third-party interactive computer service, rather than the actual author of the offending statement. In such circumstances, the service provider would likely take down the allegedly offending material rather than face a lawsuit. Providing immunity removes this unhealthy incentive to take down material under improper pressure.” (source)
Here’s the beautiful thing about this: Without this addition to the law, web hosting companies and other “interactive service providers” would likely have become the targets for libel tourism suits. Libel tourists, frustrated by their attempts to impose foreign libel standards on American speakers, would simply have sued the service providers. Since Section 230 only protects you in U.S. courts, that might have meant that American service providers would have simply become collateral damage in the fight against free speech.
Now, even if a service provider is the target of a foreign libel suit, the foreign court will either need to apply Section 230, or its judgment will not be enforceable in the United States. This creates a pretty good incentive for some online service providers to locate their businesses inside the United States.
The Legal Satyricon would like to extend its First Amendment Bad Ass award to Cohen — our only two-time winner. At the same time, we are also joyfully compelled to extend the award to Paul Allen Levy and his team at Public Citizen. Boys, your country is in your debt.
If we can get a national anti-SLAPP law on the books — another project that Rep. Cohen is working on — we may find that the First Amendment is entering a period of renaissance.
By J. DeVoy
In Danielle Citron’s paper Cyber Civil Rights, which she discussed at Denver Univeristy’s “Cyber Civil Rights” Symposium (summarized by Eric Goldman here), her contempt for existing First Amendment freedoms could not be clearer. Though anonymous speech can shock and offend people, Citron proposes eliminating it completely.
First, Citron advocates the elimination of § 230 immunity under the Communications Decency Act of 1996 as it applies to certain claims against Internet Service Providers (ISPs). Additionally, she envisions a regime where ISPs must keep records of the IP addresses assigned to their subscribers in perpetuity. Second, the reason for this shift in policy arises from the reported victimization of women by online harassers. Can’t men be victims too? I’ll consider these propositions in turn.
I. Citron’s proposed legal changes are asinine, impractical, or both.
The elimination of § 230 immunity for ISPs, however limited in scope, opens a veritable Pandora’s box of new problems for services providers. If consumers think they pay too much for internet service now, they should just wait to see how they’ll internalize the costs of almost limitless liability for defamation, privacy invasion, and intentional and negligent infliction of emotional distress claims – even when meritless! Inevitably someone has to pay the legal bills to fight these claims, and the ISP isn’t going to sacrifice profits doing so.
At Concurring Opinions, Michael Froomkin believes that allowing this framework to become law entails a value judgment. He’s right, but for a different reason: allowing these claims is in itself a value judgment weighing emotional damages over fiscal ones. Why not repeal § 230 in its entirety so that ISPs have distributor liability for violations of intellectual property laws by others, such as sharing movies and music? The costs of insuring against such liability would be explosive. Still, restricting the repeal of § 230 only to harassment-based claims is unfair to entities that lose millions of dollars in calculable financial damages through piracy and have no recourse against the ISP.
For the law to rescind any § 230 protection for ISPs would contradict the entire point of the internet. The purpose of § 230 was to allow operators, including ISPs, to provide resources to the public without regard for how irresponsibly it would use them. Similarly, ISPs will be loath to expand the reach and range of internet coverage when adding new subscribers will multiply their liability. Swaths of the country have limited or no access to high-speed internet, a reality lost on the elites. Increasing the ISPs’ costs of doing business with unsophisticated consumers will obstruct the end user’s internet access.
Moving to Citron’s second proposal, “traceable anonymity” is an oxymoron; if someone is traceable, he or she is not truly anonymous. Many ISPs currently retain users’ IP addresses for a period of several months based on a provider’s values and price tolerance. In the case of online harassment, the effect of the speech is almost immediate, obviating the need to have an eternal record of one’s ISP history. The reality that any injured party’s legal claim is curtailed by a statute of limitations further weakens the case for a permanent record of IP addresses. The wrongs Citron fears are quickly and easily ascertained; there is no need to keep a record of IP addresses like an individual’s medical history, retroactively looking for problems over years and decades.
Finally, intermediary technology can easily frustrate the goal of a permanent IP address record. Proxy servers for programs such as Tor and Ghostsurf can be located overseas, outside the reach of American jurisdiction, and mask a user’s IP address behind several layers of proxies. In theory, this technology makes the speaker untraceable. More laws would be needed to govern this behavior, further micromanaging internet use, or we have to admit that this kind of conduct is unmanageable. Maybe shame can work. Given the gender disparity of online harassment Citron cites, perhaps those concerned about it can frame the use of proxy servers as unmasculine and geeky.
II. The First Amendment is, and should remain, gender-neutral.
At its core, this debate exists because women report online harassment more often than men. Equalists, firm in their denial that people of different genders or backgrounds could ever be dissimilar in any way, naturally find this repugnant and attribute it to superstructures of power, hate, resentment and gender struggle that can only be defined in academic terms. In reality, the causes may be simpler and should be subject to more rigorous research before becoming the basis of new law.
First, some assume that female harassment online is underreported. To the contrary, it could be over-reported. Surely no woman would wrongly accuse men of wrongdoing. Nope, never ever. On the other side of this coin, why isn’t there concern about men underreporting their online harassment? Because men silently struggle with smear campaigns against them in real life, there is reason to believe it doesn’t happen online and, as in real life, continues without discussion (let alone a report to law enforcement).
The second core assumption is that all, or even most, harassment is male on female. While Citron cites studies that show female web identities are harassed more often, there is no way to tell that all of these harassers are male. Though it may stun feminists, some women really do enjoy tearing down other women, and may take advantage of anonymity’s veil to do so. In the case of men, their harassers may be other men or even females who revel in the torture and emasculation of lesser men. These avenues’ lack of exploration undermines the validity of the assumption that online harassment is solely about men’s power over women.
Even if these assumptions are true, this is a reality of having free anonymous speech. While nobody is condoning online harassment, discomfort in the face of unpopular speech does not render it inappropriate. If it did, the outcomes of People v. Flynt, New York Times v. Sullivan and Pickering v. Board of Education would have all been rather different. Perhaps this discussion would be changed if the First Amendment was a civil rights statute. Even then it would be unseemly to prioritize the harm done to one group over another when both are affected, as Citron notes both men and women suffer from online harassment. The First Amendment is not a statutory enactment, however, and it holds much greater regard in our legal system. As there is no legal basis for limiting constitutional protections because one group has its feelings hurt more than the other, Citron’s proposal would be an improper encroachment on the First Amendment.
In all, Citron’s proposal is an intrusion on the First Amendment for the sake of protecting people’s feelings. This is a thoughtful but misguided goal. Inasmuch as I dislike having my feelings hurt, the purpose of the First Amendment is to allow people to say what they want, anonymously if they wish, within the bounds of the law. When Anonymous turns an internet persona like Paul Fetch into a “lolcow,” they are exercising their rights to disagree with his speech and have violated no law, however much Fetch may dislike it. Prospectively limiting this right based on under-researched gender bogeymen is unconscionable and unconstitutional. When exercised legally, the right to speech – and lulz – is and should be unfettered.
Jay DeVoy is a third-year law student at the University of Wisconsin Law School. There, he is the President of his Federalist Society chapter, on the executive board of the Wisconsin Moot Court board, and a member of the Wisconsin International Law Journal. DeVoy previously has held editorial positions with various student newspapers and dedicated his time to raising awareness of First Amendment and free market issues.
This is an interesting Section 230 decision that clarifies one of the many possible lines between enjoying Section 230 protection and losing it, namely what kinds of legal claims treat an interactive computer services as a “publisher or speaker” within the meaning of the statute and what kinds do not. It should also serve as a cautionary tale for online service providers including bloggers who allow comments.
Ms. Barnes’ ex-boyfriend is a bit of a douchebag. After they broke up, he created a fake personals ad for her on Yahoo and impersonated her on various online forums:
Barnes did not authorize her now former boyfriend to post the profiles, which is hardly surprising considering their content. The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the addresses, real and electronic, and telephone number at Barnes’ place of employment. Before long, men whom Barnes did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex. (Op. at 5315-16)
Barnes demanded that Yahoo take the information down, but Yahoo was not very responsive — even though it had a policy providing for the removal of fake profiles if the complaining party provided a copy of her drivers’ license.
During the same period, a local news program was preparing to broadcast a report on the incident. A day before the initial air date of the broadcast, Yahoo broke its silence; its Director of Communications, a Ms. Osako, called Barnes and asked her
to fax directly the previous statements she had mailed. Ms. Osako told Barnes that she would “personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it.” Barnes claims to have relied on this statement and took no further action regarding the profiles and the trouble they had caused. Approximately two months passed without word from Yahoo, at which point Barnes filed this lawsuit against Yahoo in Oregon state court. Shortly thereafter, the profiles disappeared from Yahoo’s website, apparently never to return. (Op. at 5316)
This is where Yahoo messed up.
Barnes attempted to plead around Section 230 in a number of creative ways. She claimed that since Section 230 only relieved online service providers of being held to be the publisher of defamatory material, that did not relieve Yahoo of the obligation to take down allegedly defamatory material. Barnes then tried to argue that Section 230 only applies to websites that try and remove some objectionable material.
Leaving no stone unturned, Barnes reminds us that the statutory purpose of the Amendment is to encourage websites affirmatively to police themselves, not to provide an excuse for doing nothing. This argument from statutory purpose has more force to it, because section 230(c) is, after all, captioned “Protection for ‘good samaritan’ blocking and screening of offensive material.” Cf. Roommates, 521 F.3d at 1163-64. It would indeed be strange for a provision so captioned to provide equal protection as between internet service providers who do nothing and those who attempt to block and screen offensive material. As the Seventh Circuit has recognized, ifsection (c) did provide equal protection, then “[internet service providers] may be expected to take the do-nothing option and enjoy immunity” because “precautions are costly.” GTE Corp., 347 F.3d at 660. (Op. at 5328-29)
Although none of her key arguments made it around Section 230, she did have one persuasive theory: Breach of contract.
As noted above, Yahoo engaged in discussions with Barnes and promised to remove the material. However, Yahoo failed to do so.
Subsection 230(c)(1) creates a baseline rule: no liability for publishing or speaking the content of other information service providers. Insofar as Yahoo made a promise with the constructive intent that it be enforceable, it has implicitly agreed to an alteration in such baseline. Therefore, we conclude that, insofar as Barnes alleges a breach of contract claim under the theory of promissory estoppel, subsection 230(c)(1) of the Act does not preclude her cause of action. (Op. at 5335)
The moral of the story? If you are an online service provider (including a blogger who allows comments on your blog) and someone calls you up or emails you and asks that you remove objectionable material, you have two choices: 1) You can refuse to do so and rest assured that Section 230 will likely provide you with immunity; or, 2) If you say you will remove the material, follow through on your promise to do so, because once you say you will, you have modified the “baseline rule” of Section 230.
Ann Bartow posted a piece over at Feminist Law Professors that started out seeming to be a rather nice bit supporting Prof. Mark Lemley, one of the attorneys representing Brittan Heller and Heide Iravani in the AutoAdmit suit, — and a defendant in Anthony Ciolli’s countersuit — a case that the Eastern District of Pennsylvania has allowed to go forward — in part.
Mark Lemley got involved with this case, in my opinion, because he is a progressive, good-hearted, moral and generous person. (source)
I can’t be sure why Lemley got involved in that case. I directly asked him that question, and he didn’t answer me. Nevertheless, I believe that Prof. Bartow’s assessment of him is accurate. He does seem like a genuinely good-hearted, generous, and moral person, and I have never heard a single person say otherwise. His involvement in the case did puzzle me, which is why I asked him about it. While his silence was disappointing, I can understand that for liability reasons, it was better that he not reply.
I suspect that he got bamboozled into the case — that he wasn’t told the whole truth until he was already waist deep in the muck, and then it was too late to back out gracefully. Accordingly, I think it is kind of nice that Bartow supported Prof. Lemley. Hell, the man was one of my heroes before I saw the Auto Admit case with his name on it. I still reverently respect him and personally like him, and a part of me hopes that he can disprove the allegations against him. However, if the allegations do stick, like him or not, adults must answer for their actions.
Regardless of Lemley’s motivations, Prof. Bartow’s piece is not at all about supporting Lemley. Behind all of her compliments for him, this post is just Bartow’s latest anti-free-speech diatribe (see commentary on a previous one here), further demonstrating that second-wave feminists have turned the Auto Admit case into their cause-celebre. They just can’t wrap their heads around the fact that sometimes, occasionally, the poor female victim(s) can lie, be spiteful, be unethical, be misled, or just plain wrong. Or, if they can wrap their heads around it, they would rather set themselves on fire than admit it.
[I]t seems pretty obvious to me why Anthony Ciolli was named in the original law suit. ISP immunity under Section 230 does not apply to the authors of contested material. Ciolli was clearly posting comments at the AutoAdmit discussion board under at least one pseudonym, “Great Teacher Onizuka.” The plaintiffs had every reason to suspect that he was posting under others as well, and that he could have been personally responsible (and liable) for some of the actionable material. They could not rule him out without conducting discovery in the context of litigation, and they could not do a thorough investigation of the matter unless Ciolli was a named party. Once the plaintiffs knew either that Ciolli was not a bad actor or that they would be unable to prove that he was a bad actor, they dismissed him. Any competent lawyer would have done the same thing. This is Civil Procedure 101. (emphasis added)
Ciolli was “clearly” posting under a pseudonym. Was he? Was it clear? Was it about the girls? Was it negative? Then why include this?
Lets teach Prof. Bartow a little bit about Civil Procedure. Or, better yet, lets teach everyone else about it, because I can’t see Bartow getting off her shrill perch — but I’d rather not let people in the blawgosphere be misled.
Even if Ciolli were not a defendant, the plaintiffs would have had every right to subpoena and depose any person who may have possessed relevant information. In fact, after Ciolli was dropped from the case, Heller and Iravani’s lawyers did, indeed, take his deposition to make sure that they did not leave any stones unturned. Any competent law professor would know that this was not only possible, but proper. Any competent blogger would have at least read Ciolli’s complaint to find that fact. But, lets not let a pesky thing like the facts get in the way of a Dworkin wanna-be’s tirade.
If the reason Heller & Iravani sued Ciolli was because he “might have” posted under multiple personas, then why did they not name each and every moniker on Auto Admit? Everyone on Auto Admit could have had multiple monikers. In fact, law professor Brian Leiter is rumored to have posted on Auto Admit under the name “Tokyo Rose.” I posted on AutoAdmit under my real name. Why not name me? By Bartow’s post-hoc rationalization, Leiter and I both could have been one of the defendants until we were ruled out in discovery, no? Furthermore, if there was ever a suspicion that Ciolli used another moniker, then why wasn’t that allegation ever made, on information and belief, in the complaint?
I’ll tell you why not, because the Plaintiffs’ own published statements contradict Bartow’s made up “facts.” The “theory” that Mr. Ciolli was another pseudonymous poster never arose until Heller & Iravani’s lawyers started grasping for a way out of possible sanctions, and their cheerleaders started to see their lovely pre-packaged daydream unravel.
A competent attorney does not file suit against each and every person who could hypothetically be a defendant. (As in if the facts and the law were stretched like a goatse about to snap). If that were the case, then every lawsuit would name hundreds of defendants, including people who did nothing wrong, and let discovery sort out who was actually liable. Meanwhile hundreds of additional defendants would need to report that they were defendants in civil actions and live under the cloud of litigation while plaintiffs took their own sweet time figuring out if they had sued the right person. No, it doesn’t work that way and Professor Bartow should know that.
Bartow then throws out her own “theory.”
My theory on why Ciolli is suing Lemley and the plaintiffs? To scare away other potential plaintiffs, and to discourage other lawyers from representing them.
To scare other potential plaintiffs who might bring a lawsuit against him? I should hope so, since pages 23-29 of this decision make it pretty clear that Ciolli has brought a proper claim for wrongful initiation of civil proceedings against Iravani and her attorneys. Ethics and judgment are supposed to discourage lawyers from bringing baseless claims. It is a shame when someone must file suit in order to “scare” potential plaintiffs from abusing the courts and filing frivolous claims for an improper purpose.
The AutoAdmit case has been shown to be more of a shakedown, legal extortion, than a suit calculated to vindicate any real legal interests. While some might point out that over-inclusiveness and scattershot complaints are more common than I might like, the fact is that Bartow’s post is less about backing a nice guy – and more of a way of backpedaling and acting as an apologist for misuse of the legal system. Ethics matter, and the reason that so many lawyers miss that lesson is professors like this seem to disagree.
Ciolli had some pretty damning evidence to present in his case. Unfortunately for him, the E.D. Pa. ruled that it was excluded by FRE 408. Lets sit back and see if Ciolli’s lawyer in that case can find an alternate way of getting the information before the court. If he can, I’d imagine that Ciolli will prevail — which will probably give Bartow an excuse to blame it on the “patriarchy,” because in Bartow-world, the only women who are ever wrong or ill-motivated are those who disagree with her.