Bloggers are protected as “Media” – Comins v. VanVoorhis (Chapter 2)

April 13, 2014

It’s an all-too-common scenario: A blogger criticizes someone online, and then gets sued for his statements.   But two things make this case unique: First, the plaintiff sued because of the blogger’s characterizations of him shooting two dogs at close range; second, the defendant blogger was in Florida – and thus protected by Fla. Stat. § 770.01. (I am proud to have represented Mr. VanVoorhis, the blogger in this case).

Florida’s pre-suit notice statute, § 770.01, requires defamation plaintiffs to alert defendants to the allegedly defamatory material before filing suit. The statute reads, in its entirety:

770.01 Notice condition precedent to action or prosecution for libel or slander.

Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory

Florida’s appellate courts have interpreted this very strictly. Essentially, the statute doesn’t let you sue someone (as long as they are covered by the statute) unless you meet its conditions. It has a tendency to relieve courts of the burden of at least some frivolous defamation litigation, because the statute requires a defamation plaintiff to focus his attention on what, precisely, he finds to be defamatory and to articulate his concerns in writing. Theoretically, we must presume that such an exercise generates at least some self-reflection by parties and attorneys who might otherwise file unsupportable SLAPP suits.

The fact that 770.01 applies to newspapers and periodicals has never been challenged. When the legislature added “other medium” to the statute in 1976, I think it was being forward-thinking in trying to make the statute broad enough to embrace new media that might come into being. I always felt that “other medium” was clear enough. The Internet is a “medium,” so why shouldn’t 770.01 protect bloggers? We raised that issue at the trial court in this case, and the court gave us a pretty succinct ruling in our favor. (Trial Court Order).

Comins appealed, and he took the position that the words “other medium” did not extend to the Internet, and even if it did, it would only apply to news media. (Appellant’s brief at 14-15). Comins further argued that even if it extended to the Internet, Mr. VanVoorhis was not a “media defendant,” since he was not “a journalist.”

We argued that the language “or other medium” includes the Internet, and most certainly includes blogs. (Answer Brief). In fact, we took the position that the statute should apply to everyone, media, non-media, or anyone else. (The court did not hold that broadly). However, we also argued that no matter how the court looked at the scope of 770.01, it should apply to our client, because he was a “media defendant,” despite the fact that he “only” published on a blog.

The essential point, which the appellate court agreed with, is that a “journalist” is not something you are but is rather something that you do. Mr. VanVoorhis’ blog was journalism, and thus he was considered to be a “media defendant.” In agreeing, the appellate court gave us some wonderful language supporting the proposition that bloggers serve an essential function.

[I]t is hard to dispute that the advent of the internet as a medium and the emergence of the blog as a means of free dissemination of news and public comment have been transformative. By some accounts, there are in the range of 300 million blogs worldwide. The variety and quality of these are such that the word “blog” itself is an evolving term and concept. The impact of blogs has been so great that even terms traditionally well defined and understood in journalism are changing as journalists increasingly employ the tools and techniques of bloggers – and vice versa. In employing the word “blog,” we consider a site operated by a single individual or a small group that has primarily an informational purpose, most commonly in an area of special interest, knowledge or expertise of the blogger, and which usually provides for public impact or feedback. In that sense, it appears clear that many blogs and bloggers will fall within the broad reach of “media,” and, if accused of defamatory statements, will qualify as a “media defendant” for purposes of Florida’s defamation law as discussed above.

There are many outstanding blogs on particular topics, managed by persons of exceptional expertise, to whom we look for the most immediate information on recent developments and on whom we rely for informed explanations of the meaning of these developments. Other blogs run the gamut of quality of expertise, explanation and even- handed treatment of their subjects. We are not prepared to say that all blogs and all bloggers would qualify for the protection of section 770.01, Florida Statutes, but we conclude that VanVoorhis’s blog, at issue here, is within the ambit of the statute’s protection as an alternative medium of news and public comment.

The presuit notice requirement of section 770.01 applies to allegedly defamatory statements made in such a public medium the purpose of which is the free dissemination of news or analytical comment on matters of public concern.(Op. at 23-24)

In other words, if a blog is a legitimate news source, it is just as protected as if it were The New York Times.

But, the court did not go so far as to say that everyone gets protection under the statute, and not every blog is a member of the media. There are certainly blogs out there that have different missions, and those would not be covered.

This is a great decision for bloggers, especially those who might find themselves under the threat of a defamation suit in Florida.

As a practice note, I have often said that filing a defamation claim in Florida without sending a 770.01 notice should be per se legal malpractice. The simple exercise of sending a letter, where you articulate your legal theory, should be no great burden on any plaintiff. This case should make that clear. We certainly believed (and argued) that the defense should have prevailed on the merits. See Answer brief at 36-68. However, neither the trial court nor the appellate court ever looked at the merits — since the claims were barred completely by the plaintiff’s failure to comply with the simple exercise of sending a pre-suit letter.

Conversely, if you’re defending a blogger in Florida, do not fail to raise the 770.01 issue at the pleading stage. While it may be more satisfying to prevail on the actual merits of the case, this route is a lot easier and cheaper than a trial on the merits.

Case Documents:

    Comins Appellant Brief

    Van Voorhis Answer and Cross-Appeal Brief

    Comins’ Reply and Cross-Appeal Opposition

    Van Voorhis’ Cross-Appeal Reply Brief

    Appellate Court Opinion


Law Enforcement Priorities

April 13, 2014

I’ve been involved in the debate over whether we should criminalize “revenge porn.” As much as I despise the practice, I don’t agree with new criminal laws to punish it. In fact, I just spent some time on a panel at Stanford Law School, in the company of three people I greatly admire — one of whom (Attorney Erica Johnstone — one of the founders of “Without My Consent“) is a strong proponent of enacting new criminal laws to punish “Non-Consensual Porn.”

We had a very respectful debate over our differing opinions. During that discussion, I shared one of my rationales — that law enforcement just won’t give a shit. I’ve personally spoken with prosecutors about revenge porn cases in which the victim is underage — so a bona fide child pornography prosecution, wrapped up in a nice little bow for them. All they need to do is go grab the perpetrator.

The reaction?

“We just don’t have the resources to go after every one of these guys.”

Ok, fair enough. A 14 year old girl who had her life thrown upside-down. A child who expected that the state might give a shit about her. She’s not a priority. I’m not going to shit on law enforcement for making that judgment call, although that might seem to be a proper reaction. Lets look at it this way — that 14 year old girl had her life thrown upside down, but somewhere maybe, there’s an 8 year old girl tied up in a basement, and they need the resources they have in order to go save her. Fair enough?

But then, if that’s our rationale for ignoring the 14 year old, how are we ever going to convince a detective or a prosecutor to go after the ex-wife of a 35 year old guy who might wind up on an Non-Consensual Porn website, because his ex got pissed off at him and submitted some cock shots to the latest NCP site?

We aren’t.

When I get interviewed about this kind of thing, I often mock our law enforcement priorities – stating “If there were some underage kids drinking, or an old lady smoking pot for her glaucoma, they’d send in the troops. But, not for this kind of thing.”

Yeah… exactly. Swat teams for small amounts of marijuana, which never hurt anyone. Meanwhile, the kids I represent in civil cases can’t get law enforcement to give a shit about them, because resources.

You know, resources spent going after middle aged women who are buying plant food – because sometimes you might catch someone with a little bit of weed. (One of many sources)


Natural Selection in Action!  

March 31, 2014

Once more, with feeling…. I will NOT listen to clergy members (at least if they tell me to let a hyena eat my balls)

 


I wish I was a good enough person to have thought of this

March 23, 2014

Great “protest” at Fred Phelps’ funeral.  (here)


Revenge Porn Scumbags Spanked With $385,000 Judgment

March 18, 2014

Kevin Bollaert

Kevin Bollaert

Founders of the revenge porn site You Got Posted, Eric Chanson and Kevin Bollaert, have been ordered to pay an Ohio woman $385,000, including $75,000 in punitive damages, for distributing child pornography – photos of her when she was underage. (judgment) The plaintiff, represented by Randazza Legal Group, sued You Got Posted’s operators after finding several sexually explicit images of herself as a minor on the site. The $385,000 judgment is the end of her case against two of You Got Posted’s operators.

The woman sued as “Jane Doe,” and the federal court for the Southern District of Ohio awarded her a judgment of $385,000 against Kevin Bollaert and Eric Chanson on March 18, 2014. The Court awarded the plaintiff $150,000 each on two child pornography claims, and $10,000 on her right of publicity claim. Additionally, the Court awarded the plaintiff $75,000 in punitive damages based on Bollaert and Chanson’s conduct. In total, the Court awarded $385,000 against Kevin Bollaert and Eric Chanson. Additionally, the Court prohibited Kevin Bollaert and Eric Chanson from ever again publishing her images.

In May of 2013, the plaintiff sued Kevin Bollaert and Eric, Roy, and Amy Chanson for publishing sexually explicit images of her on the website You Got Posted. In related legal action, on December 10, 2013, the California Attorney General’s Office indicted and arrested Bollaert on counts of conspiracy, identity theft, and extortion in connection with You Got Posted. (Arrest Warrant Here)

The judgment comes on a default. But, it was not an ordinary default. The Chanson defendants retained the services of a law firm in India to defend them — yes, a law firm that doesn’t even have a single license in the United States, much less the court where this matter was pending. They tried to pretend that they were actually pro se, while using these unlicensed “attorneys” as their counsel. When we figured that out, we moved to strike all of their pleadings. (Motion here). The court granted the motion. (order) Eric Chanson didn’t bother trying again and after a prove-up hearing he and his compatriot got their just desserts.

The message this $385,000 judgment sends to people who run revenge porn sites is unambiguous. These sites irreparably harm their victims, and often without any criminal action against them. In this case, a civil suit allowed our client to obtain justice against the people who exploited her. Marc J. Randazza and J. Malcolm DeVoy IV of the Randazza Legal Group and Prominent First Amendment Bad Ass, H. Louis Sirkin handled the case on behalf of Jane Doe.


Was Saint Patrick Really Italian?

March 17, 2014

Irish is, without a doubt, the dominant immigrant culture in Massachusetts. Growing up there, in a town where Sicilians were the plurality, St. Patrick’s Day was always a little underwhelming. Instead, we celebrated St. Joseph’s day on March 19. Of course, every St. Joseph’s Day, someone would bring up the old story that St. Patrick’s day should be “our” day too — since St. Patrick was really Italian. We wanted to believe it, so we did.

Every year, articles pop up repeating the story that St. Patrick was really Italian. Even GoErie.com repeats the tale.

St. Patrick was born around 432 AD and died around 461 AD. He was Italian not Irish. Story is that St. Patrick was kidnapped at age 16 from Rome and brought to Ireland as a slave. (source)

Reviewing multiple sources finds conflicting stories of St. Patrick being born as early as 370 and dying around 460 AD. He was born Maewyn Succat. A number of sources say he was born in either Scotland or in Wales to parents Calpurnius and Conchessa, who were reportedly high status Romans.

Given the time periods in play, it is certainly likely that there would be high ranking Romans in Britain at that time. However, at that time, being “Roman” didn’t necessarily mean that one came from Rome.

For centuries before Maewyn’s birth, the concept of being a Roman expanded beyond the narrow definition it had in the early Republic. In 212 AD, Emperor Carcalla issued the Constitutio Antoniniana, which granted Roman citizenship to all free men in the Empire. Even before that, select groups of conquered peoples and powerful and important rulers of conquered lands were often granted full Roman citizenship.

So, it seems that Maewyn Succat was most likely a Roman. But, he could have been “Roman,” without possessing have a single strand of DNA originating from from the Italian peninsula.

Nevertheless, for the sake of argument, lets just assume that his family came from ancient Patrician blood, and that his parents were born in the shadow of the Colosseum. While this is entirely unlikely, lets say that’s how it was — and therefore, little Maewyn Succat was so Roman that he bled eagle blood and preferred his wine mixed with wolf’s milk.

Does that make him Italian?

One problem with claiming him as Italian is the difficulty of accurately defining “Italian.” What we now call “Italians” are really a mixture of a diverse ebb and flow of ethnicities made up of pre-Roman populations like the Etruscans, who later mixed with various Celts, Greeks, Germanic tribes. Sicily? Don’t even get me started. “Italy” as a nation didn’t even exist as an idea until the Risorgimento in the 1800s.

Back then, some like Austrian Prince Metternich angrily declared that Italy was nothing more than a “geographical expression.” Those who drove the Risorgimento would have found this insulting, but after Italy gained unification and independence, Massimo d’Azeglio seemed to affirm it by writing “we have made Italy; now we must make Italians.”

At the time of reunification, only about 3% of “Italians” spoke Italian. Even the King, Vittorio Emanuele, barely spoke it. Even today, much of Italy communicates in regional dialects at home, which are often mutually unintelligible.

So I suppose the answer is this: St. Patrick was likely Roman of some color or another. It is unlikely that he was Roman under the definition used by Italians who try and claim him. It is very likely that little Maewyn was actually some kind of Gaul. Even if he was as Roman as Marc Antony, most Italians trying to claim him as their very own have a somewhat loose grip on their own connection to the Romans as their ancestors.

It seems that the Irish should be permitted to maintain their claim over Maewyn Succat. Not that he was Irish either. But, if his historical significance is that he was an important missionary in Ireland, and he died there, well then they can have him.

The only thing they can’t have is the story about him banishing the snakes from Ireland. That’s not true. Glaciers did it almost 10,000 years before St. Patrick was born. (source)

So, this St. Patrick’s Day, the correct thing to shout is Erin go Bragh, and not Viva Italia.


No…. Section 230 does not prohibit you from being responsible

March 15, 2014

There are three kinds of people who talk about Section 230: 1) Those who know the law and speak the truth, 2) Those who know the law, but lie, 3) Those who don’t know the law, and still spew stupidity.

I’m not going to try and separate the 2s from the 3s. I just want to spread the truth. But, once armed with the truth, would you dear readers please yell BULLSHIT at the 2s and 3s when you hear them speak?

A really brief overview: 47 USC Section 230 is the federal statute that provides legal immunity to online service providers for lawsuits based on content provided by third parties. Because of this law, if someone posts a defamatory comment on this blog, I am not liable for that content. Period. There are some very very narrow exceptions, which don’t warrant discussion for the purposes of this post — because we aren’t going to delve into nuance here.

I want to clear up one bit of bullshit that seems to continue to walk the earth, sort of like a legal bullshit zombie. The bullshit is the notion that if I delete ANY comments on this blog, then I lose my Section 230 immunity.

This comes to mind because this Friday, I had the pleasure of speaking at the Attorney At Blog conference. During that conference, a very nice lady “informed” the audience that her blog would delete problematic comments, but they couldn’t, lest they lose Section 230′s protection.

I felt like a dick having to correct her. But, I can’t let a room full of people leave dumber than they came in. If you come to a place for CLE credit, the least you should do is learn something true, right? Shockingly, she defended her position by saying that it was based on the advice of her attorney. I advised her to fire that attorney immediately.

Read the statutory language below:

(c) Protection for “Good Samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1) (emphasis added)

I do delete comments from time to time. If I notice them and they are “excessively violent” or “harassing” or “otherwise objectionable,” I delete them. Why? First, its my blog, so my fucking rules. You have a right to express yourself, but not necessarily here. Second, I have absolutely no doubt in my mind that I can delete one comment and leave 100 filthy, objectionable, harassing, defamatory, nasty, and brutish comments and still not be liable.

Section 230 has been a wonderful thing. It has allowed the Internet to grow, and allowed services like Facebook, Craigslist, Fling.com, Pissedconsumer.com, and any number of other fun websites to exist. It allows me to have a comments section on each post, without worrying about whether I’ll be liable for something posted there. It does foster free speech online. So hooray Section 230.

Despite the fact that Section 230 gives me the right to be arrogant when it comes to the comments on my blog, it does not prohibit me from being responsible. I know very well that Section 230 is not there because of any Constitutional mandate. It is an immunity from liability bestowed upon us by Congress — and what Congress gave us, Congress can take away. One day, I expect that Congress will take away Section 230 (at least in part).

Why?

Because we can’t have nice things… One day, it is going to be the wrong Senator’s daughter who gets a rape threat or defamed on a comment somewhere, and you’re going to see some rollback to the freedom that Section 230 has given us. And that will be too bad, because it didn’t need to be that way.

You see, lots of bloggers and tech companies realize that Section 230 does allow them to have their own rules – and they act responsibly in the face of that freedom. If someone posts a comment on my blog saying that they are going to rip a woman’s eyes out and fuck the eye sockets (a threat lobbed at the nice lady who was misinformed about Section 230) then by the power of The Dude, I will delete that comment (and ban the commenter forever)MJR Dudeist Minster

Unfortunately, there are Section 230 protected websites who decide that they will simply go all the way to the edge of what Section 230 protects today. I at least respect them (on some level) when their rationale is “fuck you, Section 230 says I can, so everyone can suck it.” But, there are the liars and dipshits who say “If I delete any posts, I lose my Section 230 protection.”

If you are at a fifth grade reading level or better, the plain language of the statue should make it clear to you that this just isn’t true.

If you’re a Section 230 protected website operator and your lawyer has ever told you that you can’t act responsibly, lest you lose protection, then pick up your phone and dial his number (or her number, whatever). I presume you’ll get his voicemail. Leave this message “Hey, you’re either really stupid, or fucking dishonest. In either event, you’re fired, fucktard.”

Thank you. You are now less stupid.


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