DMLP Amicus Efforts

The Digital Media Law Project contributes to amicus curiae briefs in a variety of cases with important implications for online speech, journalism, and the public good. Below is a list of amicus efforts we have led or participated in. We are always looking for new amicus opportunities — please don't hesitate to contact us if you are trying to build a coalition or attract amicus support.
  • Bank Julius Baer & Co. Ltd v. Wikileaks, No. CV08-0824 (N.D. Cal. Feb. 26, 2008). CMLP drafted portions of an amicus curiae brief and assisted in organizing a coalition of media organizations, including the Citizen Media Law Project, Reporters Committee for Freedom of the Press, Los Angeles Times, Gannett, Associated Press, and Society of Professional Journalists, opposing an injunction ordering the shutdown of the Wikileaks.org website. On February 29, 2008, the court dissolved the injunction and on March 5, the bank withdrew its lawsuit.
  • Hatfill v. Mukasey, No. 08-5049 (D.C. Cir. Mar. 10, 2008). CMLP joined 28 of the country's leading news organizations, press associations, and nonprofits in filing an amicus curiae brief opposing the contempt citation issued against Toni Locy, a former reporter for USA Today.
  • Jones Day v. BlockShopper LLC, No. 08CV4572 (N.D. Ill. Sept. 19, 2008). CMLP joined Public Citizen, EFF, and Public Knowledge in submitting an amicus curiae brief in support of BlockShopper.com's motion to dismiss Jones Day's trademark claims against it based on BlockShopper's reporting on the home purchases of two of Jones Day's associates.  The court denied permission to file the brief.
  • Dugas v. Robbins, No. BACV2008-491 (Mass. Sup. Ct. Nov. 7, 2008).  CMLP joined with the Online News Association, Media Bloggers Association, New England Press Association, and Globe Newspaper Company to submit an amicus curiae brief arguing that the Massachusetts anti-SLAPP statute applies to all parties who engage in petitioning activities, including members of the news media and professional bloggers. The court denied permission to file the brief.
  • Noonan v. Staples, Inc., No. 07-2159 (1st Cir. Mar. 11, 2009). CMLP joined other media organizations and media law advocacy groups in seeking permission to submit an amicus curiae brief urging the U.S. Court of Appeals for the First Circuit to grant rehearing en banc. In Noonan, a three-judge panel of the First Circuit held that an outdated Massachusetts statute allowed a former Staples employee to hold the company liable for defamation based on a truthful email sent to employees explaining the reason for his termination, so long as he could prove that the email was sent with "actual malevolent intent or ill will." The court denied permission to file the brief.
  • Maxon v. Ottawa Publ'g Co., No. 2008-MR-125 (Ill. App. Ct. Mar. 24, 2009). CMLP and other media and advocacy organizations submitted an amicus curiae brief urging an Illinois appellate court to protect the rights of anonymous Internet speakers by imposing important procedural safeguards before ordering disclosure of their identities. The court granted permission to file the brief.
  • Barnes v. Yahoo! Inc., No. 05-36189 (9th Cir. May 21, 2009). CMLP joined Public Citizen, the Center for Democracy and Technology, and the Electronic Frontier Foundation in submitting an amicus curiae brief in support of Yahoo!'s petition for rehearing.  The brief asked the court to amend its previous opinion to omit dicta indicating that Section 230 of the Communications Decency Act cannot be raised on a motion to dismiss, as well as to clarify that Section 230 applies to federal as well as state law claims.  The court amended its opinion along the lines suggested in the brief.
  • The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., No. 2009-0262 (N.H. June 22, 2009). CMLP and the Reporters Committee for Freedom of the Press joined forces to submit an amicus curiae brief urging the New Hampshire Supreme Court to defend the First Amendment rights of a website that covers news about the mortgage industry.  The brief analyzed constitutional limitations on prior restraints in cases involving publication of leaked documents and urged the court to apply New Hampshire's qualified reporter's privilege to online news publishers. The court granted permission to file the brief. On May 6, 2010, the New Hampshire Supreme Court ruled that the lower court’s injunction was an unlawful prior restraint on speech and that the Implode-O-Meter website was covered by the state's reporter's privilege.
  • United States v. Stevens, No. 08-769 (U.S. July 24, 2009). CMLP joined the Reporters Committee for Freedom of the Press in submitting an amicus curiae brief urging the U.S. Supreme Court to strike down a federal statute that criminalizes the possession, creation or sale of a wide variety of depictions involving animals.
  • Fustolo v. Hollander, No. SJC-10485 (Mass. Oct. 1, 2009). CMLP joined the ACLU of Massachusetts and the Lawyers' Committee for Civil Rights Under Law of the Boston Bar Association in submitting an amicus curiae brief arguing that the Massachusetts anti-SLAPP statute applies to all parties who engage in petitioning activities, including members of the news media and paid staff of advocacy organizations.
  • Holder v. Humanitarian Law Project, Nos. 08-1498 & 09-89 (U.S. Nov. 23, 2009).  CMLP joined a coalition of academic researchers in submitting an amicus curiae brief urging the U.S. Supreme Court to interpret the federal "material support" for terrorism statute to protect speakers whose professional duties require them to communicate with, or about, proscribed groups for purely lawful purposes.
  • Hammer v. Ashcroft, No. 09-504 (U.S. Nov. 25, 2009).  CMLP joined the Reporters Committee for Freedom of the Press and twenty-three news media organizations in submitting an amicus curiae brief asking the U.S. Supreme Court to review federal rules that prohibit in-person interviews with death row inmates and ban the inmates from telling the press about the treatment, conditions, or actions of any other inmates.
  • Wright Development Group LLC v. Walsh, No. 08-2783 (Ill. Mar. 3, 2010). CMLP and other media and advocacy organizations submitted an amicus curiae brief to the Illinois Supreme Court, urging the court to reject two lower courts’ narrow interpretations of the state’s Anti-SLAPP statute, known as the Citizen Participation Act.  The brief argues that a SLAPP defendant should be entitled to appellate review of a lower court ruling denying a motion to dismiss under the Citizen Participation Act, even when the case is subsequently dismissed on other grounds.  The brief also argues that the Citizen Participation Act protects statements made to the press at a public forum on an issue of public and governmental concern.
  • Barclays Capital Inc. v. Theflyonthewall.com, Inc., 10-1372-CV (2d Cir. June 21, 2010). CMLP, EFF, and Public Citizen submitted an amicus curiae brief to the Second Circuit Court of Appeals, urging the court to apply First Amendment scrutiny to the “hot news misappropriation” doctrine.  The brief, which was filed in support of neither party, highlights a long line of Supreme Court cases protecting truthful reporting of lawfully obtained facts and explores how traditional forms of intellectual property such as copyright and trademark include First Amendment “safety valves” to help ensure their protections do not stifle the free flow of information and vigorous public debate.  It also argues that First Amendment protection for sharing factual information is especially important in today’s online media environment, where both citizens and professional journalists process, comment upon, and share information from a plurality of sources at a breathtaking pace.  On June 20, 2011, the Second Circuit held that the "hot news" claims were preempted by federal copyright law, finding that the record below did not support a finding that there was an "extra element" of the defendant's conduct that would allow New York state law to punish that conduct without running afoul of preemption.
  • Glik v. Cunniffe, No. 10-1764 (1st Cir. Jan. 23, 2011).  CMLP, joined by Dow Jones & Company, Inc., GateHouse Media, Inc., Globe Newspaper Company, Inc., The Massachusetts Newspaper Publishers Association, Metro Corp., NBC Universal, Inc., New England Newspaper and Press Association, Inc., The New York Times Company, Newspapers of New England, Inc., the Online News Association, and the Reporters Committee for Freedom of the Press, submitted an amicus curiae brief to the U.S. Court of Appeals for the First Circuit in support of plaintiff-appelle Simon Glik.  Amici argued that the Massachusetts Wiretap Statute is unconstitutional if applied to criminalize recordings where the subjects of those recordings cannot reasonably expect their communications to be private.  The court denied permission to file the brief.  On August 26, 2011, the First Circuit issued a sweeping decision in the case upholding the First Amendment right to openly record the activities of government officials in public, and finding that the Wiretap Statute cannot be interpreted to criminalize such conduct.
  • Globe Newspaper Company, Inc. v. Superior Court for County of Norfolk, No. SJC-10798 (Mass. Mar. 21, 2011).  CMLP, joined by Community Newspaper Holdings, Inc., GateHouse Media, Inc., Massachusetts Newspaper Publishers Association, Metro Corp. d/b/a Boston Magazine, and New England Newspaper and Press Association, Inc. submitted an amicus curiae brief to the Massachusetts Supreme Judicial Court arguing that a public right of access to inquest materials allows journalists, bloggers, and other news gatherers to inform citizens on matters of public concern.  On December 13, 2011, the SJC agreed with the amici and ruled that inquest materials in Massachusetts are subject to the public's right of access as soon as (1) a district attorney decides not to pursue an indictment or (2) a grand jury rules upon a request for an indictment.
  • American Civil Liberties Union of Illinois v. Alvarez, No. 11-1286 (7th Cir. Apr. 22, 2011).  CMLP joined the American Society of News Editors, the Association of Capitol Reporters and Editors, the National Press Photographers Association, the Radio Television Digital News Association, the Reporters Committee for Freedom of the Press, and the Society of Professional Journalists in submitting an amicus curiae brief in support of plaintiff-appellant American Civil Liberties Union of Illinois, challenging the Illinois Eavesdropping Act.  Amici argued that the Act is so broad that it inhibits the basic right to gather information. On May 8, 2012, the U.S. Court of Appeals for the Seventh Circuit agreed with the amici, directing the district court to issue a preliminary injunction against the application of the law to the ACLU of Illinois.
  • Baker v. Goldman Sachs & Co., No. 11-1591 (2nd Cir. July 1, 2011). CMLP, with 45 other media organizations, joined an amicus curiae brief drafted by the Reporter's Committee for Freedom of the Press opposing appellant's motion to subpoena a Wall Street Journal reporter for his notes and non-confidential sources, arguing that New York's reporter's privilege should protect the reporter from having to comply. The court denied permission to file the brief.
  • Jenzabar, Inc. v. Long Bow Group, Inc., No. 2011-P-1533 (Mass. App. Ct. January 18, 2012). The Digital Media Law Project (formerly the Citizen Media Law Project) filed an amicus curiae brief urging affirmance of the trial court's grant of summary judgment in the defendant-appellee's favor.  Defendant-appellee Long Bow Group, a documentary film company, posted speech critical of plaintiff-appellant Jenzabar on its website, and used Jenzabar's name in metadata to identify that content for users and search engines.  The DMLP argued that Jenzabar's invocation of trademark law to prohibit the use of its name in metadata was an effort to render Long Bow's protected speech inaccessible on the Internet and was therefore barred by the First Amendment and Article 16 of the Massachusetts Declaration of Rights. The Massachusetts Appeals Court affirmed summary judgment in favor of Long Bow, holding that: (1) Jenzabar's infringement claim failed because it did not present sufficient evidence to support a finding of likelihood of confusion; (2) allegations that Jenzabar's trademark was used for the purposes of critical commentary could not support a dilution claim; and (3) the fact that Long Bow's website did not possess a tendency to deceive consumers was fatal to its Massachusetts statutory claim for unfair and deceptive trade practices.
  • Ron Paul 2012 Presidential Campaign Committee, Inc. v. Does, 3:12-cv-00240-MEJ (N.D. Cal. January 27, 2012). The Digital Media Law Project joined the Public Citizen, the American Civil Liberties Union, and the Electronic Frontier Foundation in filing an amicus memorandum on the proper standards for discovery of the identities of anonymous online speakers. The plaintiff, the campaign committee for 2012 Republican presidential candidate Ron Paul, alleged that the Doe defendants were owners of a YouTube and Twitter account named "NHLiberty4Paul," and that under this pseudonym, Defendants uploaded a video on YouTube entitled "Jon Huntsman's Values" that attacked Huntsman and ended with the following text: "American Values and Liberty - Vote Ron Paul." The plaintiff claimed that the Does' use of Ron Paul's name in the video constituted false designation of origin in violation of the Lanham Act, 15 U.S.C. § 1125(a), false description and representation in violation of the Lanham Act, 15 U.S.C. § 1125(a), and common law libel and defamation. Accordingly, the plaintiff sought expedited discovery as to the identity of the Does. After receipt of the amici's brief, the court denied the plaintiff's motion, finding that the Ron Paul campaign had failed to plead actionable claims. The plaintiff voluntarily dismissed the case without prejudice.
  • Commonwealth v. Busa, No. 1101CR005277 (Boston Mun. Ct. May 21, 2012). The Digital Media Law Project sought leave to file an amicus brief in a criminal prosecution in Boston Municipal Court, in order to challenge the constitutionality of Massachusetts' anti-counterfeiting act, Mass. Gen. Laws c. 266, § 147. Section 147 criminalizes, inter alia, the unauthorized manufacture, use, display, or distribution of any item or service bearing a word, image, or other mark that has been used and registered by another to identify goods or services. However, unlike traditional trademark protection, Section 147 is not limited to uses in commerce or where there is a likelihood of confusion, and contains no exceptions for fair use or other uses protected by the First Amendment. Accordingly, the DMLP argued that Section 147 is overbroad, in violation of the First Amendment.  Similarly, because Section 147 prohibits display or manufacture of fixed expression without any of the additional elements found in trademark law, the DMLP argued that the statute is preempted by federal copyright law under the Supremacy Clause. The Commonwealth of Massachusetts subsequently decided not to pursue, and the defendant's unopposed motion to dismiss was granted on June 20, 2012.
  • Seaton v. TripAdvisor, LLC, No. 12-6122 (6th Cir. filed Feb. 27, 2013). The DMLP submitted an amicus brief to urge the Sixth Circuit to affirm the United States District Court for the Eastern District of Tennessee's finding that a "dirtiest hotels" list published by consumer review website TripAdvisor was protected opinion under the First Amendment and Tennessee defamation law. The DMLP argued that websites using crowdsourcing to aggregate citizen reports and rely on that data to draw conclusions cannot be liable for defamation, as such conclusions would be protected in Tennessee under the doctrine of opinion based on disclosed facts. The DMLP argued that a decision adverse to TripAdvisor would chill reliance on crowdsourced data and that the use of crowdsourcing to collect data has become common in both data-based journalism and in academic research and is now crucial to journalists’ ability to play their traditional watchdog function. On August 28, 2013, the Sixth Circuit issued a decision affirming the district court's dismissal of the case and its denial of leave to amend the complaint, ruling that TripAdvisor's description of the Grand Resort as the "dirtiest" hotel was rhetorical hyperbole, and could not be read as "an actual assertion of fact."
  • Tuteur v. Crosley-Corcoran, No. 13-cv-10159 (D. Mass. filed May 1, 2013). The DMLP joined the Electronic Frontier Foundation in submitting an amicus brief in a dispute arising between two authors of different blogs. The case centers on DMCA takedown notices issued by defendant Crosley-Corcoran to the hosts of plaintiff Tuteur's blog, which Tuteur claims interfered with the publication of her blog. Tuteur's complaint asserts (1) a claim under 17 U.S.C. § 512(f) for knowing and material misrepresentations in a Digital Millennium Copyright Act takedown notice; and (2) a claim for tortious interference with Tuteur's contractual relationships with her website hosts. The DMLP and EFF submitted their amicus brief to urge the court to recognize that (1) that a Section 512(f) claim can be based on misrepresentations as to infringment alone, independent of whether there are misrepresentations as to ownership or authorization, and (2) that a party sending a takedown notice must consider questions of fair use before they may form a good faith belief that content is infringing. The court ruled that Tuteur could proceed on her claims, but did so applying a standard of liability significantly more restrictive than that urged by the EFF and DMLP.
  • U.S. v. Aurenheimer, No. 13-1816 (3rd Cir. filed July 8, 2013). On January 13, 2011, Daniel Spitler and Andrew Auernheimer were indicted in federal court in New Jersey for their alleged roles in a data breach that resulted in the acquisition of personal information of approximately 120,000 AT&T customers from an unsecured AT&T website. They were charged with (1) conspiracy to access a computer without authorization, and (2) fraud in connection with personal information. Both charges are violations of the Computer Fraud and Abuse Act ("CFAA"), 1030 U.S.C. § 1030. Because Aurenheimer shared the gathered information with the news website Gawker in order to alert the public as to the vulnerability of AT&T's website, the government alleged that the conspiracy was in furtherance of a criminal violation of a New Jersey statute, NJSA 2C:20-31, that criminalizes unauthorized computer access and disclosure of the accessed data. The result of the invocation of the New Jersey statute was the elevation of the CFAA charge from a misdemeanor to a felony. Spitler accepted a plea agreement, while Aurenheimer was convicted on both counts on November 20, 2012. On appeal, the Digital Media Law Project filed an amicus brief challenging the constitutionality under the First Amendment of elevating Count I from a misdemeanor to a felony based on Aurenheimer's publication of true information on a matter of public concern. 
  • Jones v. Dirty-World Entertainment Recordings, LLC, No. 13-5946 (6th Cir. filed Nov. 19, 2013). The DMLP joined the American Civil Liberties Union, the Electronic Frontier Foundation, and a number of other scholars and organizations dedicated to online freedom of expression in filing an amicus brief in a case raising critical issues regarding the scope of protection granted to online intermediaries under Section 230 of the Communications Decency Act. The case arose from allegedly defamatory statements published by users of the website TheDirty.com regarding the sexual behavior of the plaintiff. Although TheDirty.com specifically does not approve of its users posting content that amounts to defamation, the district court rejected TheDirty.com's Section 230 defense to liability for these comments on the basis that the site and its owner "encouraged" defamation by soliciting gossip and ribald user submissions and by responding to such ribald content with positive comments. Having been instructed that TheDirty.com was responsible for its users' statements, a jury found TheDirty.com liable and awarded more than $300,000 in damages to the plaintiff. On appeal to the Sixth Circuit, the DMLP joined the case as an amicus in order to highlight the fact that many websites that crowdsource information for important public purposes, such as gathering data on consumer fraud, health and safety issues, or abuse of legal process, ask users to submit data that could damage the reputation of individuals or businesses. These sites, the DMLP argued, should not lose the protection of Section 230 just because certain users might abuse these platforms to submit false information. The Sixth Circuit agreed in an opinion dated June 16, 2014, finding that Section 230 protected TheDirty.com and reversing the jury verdict.
  • Naffe v. Frey, No. 13-55666 (9th Cir. filed Feb. 10, 2014). The DMLP filed an amicus brief in a case involving a deputy district attorney who criticized the plaintiff on his personal blog; the plaintiff then sued the blogger for violation of her civil rights under 42 U.S.C. Section 1983.  The DMLP argued that those holding public office, when clearly acting in their private capacities, should be permitted to share their views without fear of liability under Section 1983; to hold otherwise would chill substantial amounts of speech from those with a valuable viewpoint on important issues.

Last updated on June 27th, 2014

   
 
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