Steubenville, Ohio: Gang Rape + SLAPP Suit

December 2, 2012

SLAPP suits are never pretty.

This one is particularly troubling.

A couple of members of the Steubenville, Ohio Big Red football team were accused of kidnapping and raping a 16 year old girl at a party. (source, source)

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.

codysaltsman photo

The photo and related tweets are available here. Tweets like “whore status” and “I have no sympathy for whores.”

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)

The defamation suit names Goddard and 15 defendants, known only by their screen names and IP addresses. (UPDATE: Amended complaint here)

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.


Press Prosecutions Relating to Occupy Movement Live On

December 2, 2012

By J. DeVoy

Around this time last year, large bands of police descended upon “Occupy” encampments from coast to coast, seeking to decamp the rebelling hipsters once and for all.  What you may not know, though, is that the Los Angeles Police Department radically changed their press policy immediately before its efforts to disperse the movement: only members of the “official” press pool were allowed to report on the raid. (Source)  Rogue journalists, as defined by the LAPD, would be arrested on sight.

Surely there was some kind of previous, quiet announcement of how to become a member of the official press pool so that bloggers, citizen journalists, and other non-traditional news sources wouldn’t (theoretically) be prejudiced, right? Apparently not:

[T]he day before [the raid], the LAPD had selected a handful of local news organizations and given them permission to report on the action from an embedded position. If you weren’t on the list, you weren’t a journalist. It was that simple.

NSFWCorp’s article (which is, by most standards, safe for work) draws the important parallel between the modern police state and prior repressive regimes around the globe.  Political activists are detained with painful zipcord handcuffs, held for hours and even days, and even forced to sit in their own excrement.  While Levine is not unbiased, his account requires little imagination to believe.

A year later, Levine is still being prosecuted for his crimes as not being a member of the official press pool.  While California and Los Angeles fiscally burn, the LAPD seem content to play their fiddle for one man possessing the temerity to document their actions.


Steve Swander

November 24, 2012

Steve Swander, R.I.S.

We lower the Satyricon’s flag to half mast today in honor of Steve Swander, the Immediate Past President of the First Amendment Lawyers’ Association. Mesothelioma took his life at 3:45 AM today.

His practice was based in Fort Worth, Texas, where the local weekly described him as an expert at fighting authorities in the State of Texas over “morals laws.” (source) Swander was a much-respected soldier in the ongoing battle to preserve civil liberties and freedom of expression. (source) And, he did so in Texas – hostile territory for someone on his side of the fight. (source)

The Dallas Observer wrote of him:

Swander is a professorial type who speaks carefully and almost winces when he comes to the more colorful details of what obviously is a specialty, the relationship between body parts and free speech. He spiels off the history of clear latex pasties: the court decision that caused the clubs to switch to non-latex pasties in order to change their status to Class A dance halls and escape location limits, followed by a new ordinance in 1997 focusing on the breast beneath the nipple, struck down by the court, thereby allowing clubs to operate with non-flesh-colored pasties as dance halls rather than sexually oriented businesses. (source)

That might not be a typical selection for a eulogy, but Swander wasn’t a typical guy. I see that quote and a big smile breaks out across my face, as I remember Steve.

And, it isn’t just me… my inbox is bursting with expressions of respect and sorrow from fellow members of the First Amendment Bar. If you knew Steve, this would be of no surprise to you. If you didn’t know Steve, and you saw the list of names in the “from” lines on those emails, you would think that a Supreme Court justice had just passed away. This was a bona-fide First Amendment Bad Ass.

Normally, I wouldn’t share FALA emails with the rest of the world, but I think I can make a limited exception in this case.

The current president of the organization, Daniel Aaronson, wrote about observing Steve as he prepared to take over the FALA helm.

I saw a man who conducted himself with a quiet calm grace that made all respect him. I will truly miss Steve and on behalf of all of FALA I will take the liberty of saying that we will all miss him.

Thank you Steve for your dedication to the First Amendment, to our organization and for just being you. You will be remembered.

The usually irreverent Paul Cambria, provided this particularly somber expression of respect:

When a person dies there is a set of numbers on the left of their tombstone representing the day their life began then a dash and a set of numbers on the right representing the day their life ended, but the dash represents their life. In Steve’s case that dash was filled with good things, good friends and good accomplishments great guy will be missed by all of us.

In honor of our fallen friend and colleague, I lower the flag to half mast and award Mr. Swander a posthumous First Amendment Bad Ass award.

If there is an afterlife, I am certain that Steve has already gotten to work there making sure that the place is more fun for the rest of us when we arrive. When you get there, if the angels are bare-breasted, and not wearing bikini tops, you can probably thank Steve.

Rest in slack, Steve.


Court rules “Dirtiest Hotels” list not defamatory

November 2, 2012

By Marc J. Randazza

The U.S. District Court of the Eastern District of Tennessee at Knoxville recently granted a motion to dismiss after it determined that a plaintiff hotel failed to successfully state a claim of defamation against defendant hotel review site TripAdvisor.

In Kenneth M. Seaton, d/b/a Grand Resort Hotel and Convention Ctr. v. TripAdvisor, LLC, the Grand Resort sued after it was ranked No. 1 of 10 on TripAdvisor’s “2011 Dirtiest Hotels” list. According to the Order, one user claimed that the hotel’s bathtub had “dirt at least ½ inch thick” and was filled with dark hair.  The photograph that accompanied the listing was a photograph of a ripped bedspread.  The complaint levied that TripAdvisor was liable for “maliciously and wrongfully contriving, designing and intending to cause respected customers to lose confidence in the Plaintiff and to cause the public to cease and refrain from doing business with the Plaintiff and to cause great injury and irreparable damage to and to destroy Plaintiffs business and reputation by false and misleading means.” It also claimed that TripAdvisor “singled out” the hotel and defamed it with “unsubstantiated rumors and grossly distorted ratings.”  The plaintiff asked for $5 million in compensatory damages and $5 million in punitive damages.

The hotel furthered argued that TripAdvisor should be liable because the list was presented as “factual, verifiable information,” rather than opinion or hyperbole, stating that a ruling in favor of TripAdvisor would make it “more dangerous than ever in a ‘lawless no-man’s land’ on the Internet.”

The Court disagreed with the hotel, contending that a reasonable person would be able to tell the difference between an opinion and factual information, and that the list was an “unverifiable rhetorical hyperbole.”  As an example, the Court stated that any person who could not distinguish between the subjective opinion “it is hot” and the objective fact “it is one-hundred degrees” is not a reasonable person.  Much in the same way, TripAdvisor’s list is hyperbole.

TripAdvisor’s list is no different than other lists that surround us, the Court said—from law schools, restaurants, judges and hospitals.  Readers may or may not consider those rankings in making a decision, but a reasonable person would see the rankings as online users’ opinions, and the ranking itself is subjective and therefore not defamatory.

Read the full order here.


From engagement photo to political attack ad…

October 11, 2012

In May of 2010, Thomas Privitere and Brian Edwards, a gay couple, hired a photographer to take pictures of the two men in a New York City park.  Their favorite photograph displayed the two men kissing and holding hands with the Brooklyn Bridge in the background.  The couple liked the picture so much that they posted it on the Internet as their engagement photo.

Cut to Spring of 2011:  Public Advocate of the United States, a conservative nonprofit, needed a photograph for a political flyer to take a Republican State Senator from Colorado to task for voting to approve same-sex civil unions.  Public Advocate ran across Privitere’s and Edwards’ engagement photograph on the Internet.  Presumably, the nonprofit believed Coloradans would find an image of two men innocently and chastely kissing inherently gross, and decided to use the photo for its attack ad.  Before doing so, Public Advocate doctored the image – removing the Brooklyn Bridge and replacing it with imagery reminiscent of a Colorado mountaintop.

Unsurprisingly, Privitere, Edwards, and their photographer were not flattered when they discovered that the couple’s engagement photo had been used by a right wing “think tank” to appeal to Colorado voters’ homophobia.  Earlier this month, the three filed suit against Public Advocate in federal court for copyright infringement on the photograph and misappropriation of the couple’s likeness.

Public Advocate’s use of the engagement photo should certainly be morally reprehensible to any reasonably tolerant person, and the photographer appears to have a very strong copyright infringement claim against the nonprofit.  Public Advocate has no real fair use defense here.  The political mailer was not meant to criticize or parody the original photograph.  Instead, it was meant to denigrate a politician’s views on same sex marriage or civil unions.

However, were the couple’s rights of publicity violated?  That question is a much harder one and could likely swing either way should this case proceed to trial. Rights of publicity laws are generally intended to protect persons from the unauthorized commercial use of their likenesses.  For example, Nevada’s rights of publicity laws define “commercial use” as being “for the purposes of advertising, selling, or soliciting the purchase of any product, merchandise, goods, or service.”

Here, Public Advocate has a strong argument that the flyers that it produced were purely political speech protected by the First Amendment.  The organization was not attempting to use the photograph for any commonly recognized “commercial” purpose.  Rather, it was using the image to advance its objection to homosexual civil union.

On the other hand, Public Advocate’s own website proclaims that some of its primary goals are to provide “strong and vocal opposition” to “[s]ame sex marriage and the furtherance of so-called ‘Gay Rights’” and to decry the “mainstream media’s promotion and glorification of . . . homosexuality.”  (Public Advocate is the organization that infamously compared same-sex unions to state-sanctioned bestiality, and claimed that allowing gay men to serve in the Boy Scouts was akin to “being an accessory to the rape of hundreds of boys.”)  Its website prominently asks social conservatives for contributions so that it might continue spreading its message to the masses.  If a court were to view the political mailer containing the doctored photograph as, in part, a solicitation for increased funding, the requisite “commercial use” may very well be present.

 

 


Happy Banned Books Week!

October 2, 2012

Read this today


In 1982, the Supreme Court found that students’ First Amendment rights were violated when the Island Trees School District removed Slaughterhouse Five and eight other books from library shelves. This served as the inspiration for a week-long celebration of the freedom to read, and thirty years later, Banned Books Week is still going strong. Source.

Sadly, book banning is not something that has been relegated to the dark days of an intolerant past. There are plenty of pearl clutchers and busybodies out there who work diligently to make sure that theirs is the only viewpoint that matters. You know…to protect the chiiiilllllldren. The group seeking to ban books is overwhelmingly parents (shock) and sexual activity is the most popular reason. Just so you know, violence came in at fifth place behind bad language and “other”. Source.

So please take some time this week to celebrate the written word and give a virtual middle finger (or literal if the opportunity presents itself) to those who think a book on a shelf can hurt anyone or anything.


Awfully Convenient…

September 30, 2012

Nakoula Basseley Nakoula, the director of the “Innocence of Muslims” movie, which has been blamed for setting off riots and murders in Islamic countries, has (conveniently?) been arrested for violating the terms of his probation. Among the terms of his probation: He was not allowed to se the Internet or a computer, which I presume he had to do in order to create and distribute his film. (source). From the sounds of it, the guy isn’t the most savory character in the world.

So yeah, it seems to me that he probably violated his probation.

Greg Pollowitz at The National Review wrote:

Listen, if you’re a two-time felon who is out on parole and told not to use an alias in business dealings or use the Internet and then you lie to reporters at the AP and WSJ using your alias and admitting you used the Internet, then what do you think is going to happen? (source)

Which is the only reason that he is now being held without bail, right? (source). Right?

It doesn’t have the slightest bit to do with the content of his film or the way that a bunch of idiots, brainwashed with superstition, reacted to it.

Let us presume that my cynicism is misplaced. Let us presume that it has nothing to do with that. It still sends the wrong message — that when the government does not like your speech, it can find a way to get you, First Amendment or no First Amendment.

Nikki Finke and Dominic Patten, at Deadline Hollywood saw it this way:

His arrest today is an apparent U.S. attempt to appease worldwide Muslims and their clerics and governments demanding for the YouTube video to be removed and its filmmaker punished. In an address on Tuesday condemning the content of the video, President Obama explained, “The strongest weapon against hateful speech is not repression, it is more speech.” This legal action is a way to preserve America’s  First Amendment principles but at the same time find a roundabout but legitimate way to punish Bakoula for the crudely made film that portrays the Muhammad as a religious fraud, womanizer and pedophile. (source)

I’m not saying that Nakoula should get a free pass for his probation violations. I am not saying that Finke and Patten are correct. Pollowitz has a hell of a good point. Nakoula couldn’t have made his probation violations any more public, and thus prosecutors had to do something.

Nevertheless, if Muslims are allowed to riot and kill people because they are offended at how their imaginary friend gets portrayed, I’m allowed to be offended when the government sends the message (on purpose or not) that “if you publish a film that we don’t like, we’ll find a way to put you in jail.”


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