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Why Blogs Can't Be Trusted, or: 'Statements Made Here Are Not Likely Provable Assertions of Fact'

The refrain that bloggers can't be trusted to produce accurate, factual information and reporting is a familiar one. Now, though, courts are beginning to give the cliche some legal bite. While in the short run those cases are wins for the individual bloggers involved, the bigger picture suggests that we shouldn't be too quick to celebrate.

Jurisdiction: 

Subject Area: 

Content Type: 

Obsidian Finance Group v. Cox

Date: 

01/14/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Crystal Cox

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

U.S. District Court, District of Oregon

Case Number: 

CV-11-57-HZ

Verdict or Settlement Amount: 

$2,500,000.00

Legal Counsel: 

Pro se

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)
Verdict (plaintiff)

Description: 

On January 14, 2011, Obsidian Finance Group, LLC, and Obsidian Senior Principal Kevin Padrick filed a defamation suit in Oregon federal court against blogger Crystal Cox. The complaint alleged that Cox had written a number of false and defamatory statements on her website, obsidianfincancesucks.com, and on "other websites." The statements quoted in the complaint involve "tax fraud," "fraud against the government," "hir[ing] a hitman," and other statements.

Obsidian moved for partial summary judgment, arguing that Cox's statements on her blog constituted defamation as a matter of law. Obsidian argued that because Cox had "no evidence to support the truth of any of her statements," the judge should grant summary judgment as to the question of liability, leaving the question of damages for trial. Padrick also filed a declaration denying the truthfulness of Cox's statements, and included copies of Cox's blog posts.

On May 4, 2011 Cox answered Obsidian's complaint, filed an opposition to Obsidian's motion for summary judgment, and made a number of counterclaims. Her counterclaims alleged conspiracy, harassment, and defamation.

After Obsidian and Cox traded another round of briefs on the summary judgment motion, and after Obsidian answered Cox's counterclaims, the judge ruled against Obsidian on the summary judgment question. The opinion focused on the fact that Cox's contested posts were "replete with scattershot, hyperbolic accusations," and that the "broad context" of the posts (including the name of the blog) meant that Cox's assertions were "less likely to be viewed as statements of fact." The judge also announced his intention to, sua sponte, grant summary judgment in favor of Cox. He then gave Obsidian two weeks to file a brief in opposition of this new summary judgment ruling.

Obsidian then filed an opposing brief; Cox did not respond. The judge then granted summary judgment for Cox as to all but one blog post. The judge wrote that "blogs are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact." He again found that the blogs' incendiary titles would cause readers to "view [the posts] with a certain amount of skepticism and with an understanding that they will likely present one-sided viewpoints rather than assertions of provable facts." The judge cited blogs' "setting and format," which create a "looser, more relaxed communication style" less likely to be seen as factual. Furthermore, the judge found that the "general tenor" of Cox's posts suggested that she had a "personal vendetta" against Obsidian, which "undermine[d] the reader's expectations" that Cox's assertions were factual.

The judge also described Cox's language – "a fanciful diatribe" – as undercutting a reader's expectation of factual information. And while certain statements from Cox's post could, in isolation, be seen as arguably factual, when "the content and context of the surrounding statements are considered," they would not be understood as assertions of fact.

The judge did deny summary judgment as to one post Cox made on another website, bankruptcycorruption.com. He found that because the post was removed from the less factual context of obsidianfinancesucks.com, read more like a "factual narrative," and contained some "fairly specific allegations," it would be possible for a fact-finder to read the post as asserting facts.

Obsidian then moved for summary judgment on Cox's counterclaims, and Cox filed a memorandum in support of her claims.

On October 14, 2011, Obsidian moved for sanctions against Cox, arguing that she had not been cooperating in discovery. 

UPDATES:

November 2, 2011: the district court allowed attorneys fees but denied further sanctions against Cox, and ordered Cox to comply with discovery requests. On November 9, Obsidian filed a motion to compel, requesting answers to multiple interrogatories and discovery requests. Cox objected, relying upon, inter alia, Oregon's right of retraction statute (O.R.S. § 31.215) and Oregon's media shield law (O.R.S. §§ 44.510–44.540). In a verbal order on November 28 the judge denied application of the right of retraction and shield law. 

November 29, 2011: The case went to a one-day trial. The jury in the case found for the plaintiff Obsidian for $1,000,000, and for Kevin Padrick for $1,500,000. The jury instructions for the case make no mention of a negligence or other fault requirement for defamation in Oregon, specifically stating that the defendant's knowledge of the statement's truth or falsity was irrelevant to the determination.

November 30: In a written order, the district court judge clarified his oral ruling from November 28. The judge noted that Oregon's right of retraction law applies only to statements made in print or broadcast media, and does not apply to Internet blogs. As for Oregon's media shield law, the court found that the law only applies to a person "conected with … any medium of communication to the public," and that the statute defines "medium of communication" as "any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system." The court declined to include blogs as part of that definition, and noted that even if it did, O.R.S. 44.530(3) states that the provisions of the shield law "do not apply with respect to the content or source of allegedly defamatory information, in civil action for defamation wherein the defendant asserts a defense based on the content or source of such information."

As for the substantive claim of defamation, the court rejected several First Amendment claims made by Cox. The court found that Obsidian and Padrick were not public figures as defined in New York Times v. Sullivan, that the jury did not have to find that Cox was negligent when publishing her statements under Gertz v. Robert Welch, Inc. because Cox is not a "media" defendant, and that the statements Cox made were not on a matter of public concern.

January 4, 2012: Cox filed a Motion for a New Trial and in the Alternative for Remittitur. The Motion argued that, for three separate reasons, the Court should grant a new trial. First, Cox argued that even if plaintiffs were treated as private figures, under Gertz the jury should have been instructed that she could be held liable for proven compensatory damages only if the jury found negligence, and for presumed damages only if the jury found actual malice. Second, Cox argued that because Kevin Padrick was a court-appointed bankruptcy trustee, he should be treated as a public official with respect to his duties. Third, she argued that a new trial or remittitur is required because the evidence presented did not support a finding of $2.5 million in damages.

January 11, 2012: Electronic Frontier Foundation ("EFF"), a non-profit digital rights organization, filed an amicus brief in support of Cox's Motion for a New Trial. In its brief, EFF supported Cox's arguments that the court should have instructed the jury to apply a negligence standard in order to find her liable for defamation, and that the damage award lacked evidentiary support. Additionally, EFF urged the court to reconsider its finding that Cox was not a "media" defendant. EFF argued that Oregon's retraction statute should be interpreted to include Internet publishers, because "Internet publication is no different ... than the broad publication methods identified in the statute." EFF also argued that Cox should be protected under Oregon's shield law, because she was "engaged in a medium of communication to the public."  EFF maintained that the court, in ruling against Cox on both issues, created an "unnecessarily hostile" environment for Internet speech.

January 30, 2012: Plaintiffs opposed Cox's motion for a new trial. Plaintiffs argue that any objection over the jury instruction is waived by a failure to timely object to the motion under FRCP Rule 51. Plaintiffs further argue that the minimum-fault rule in Gertz should not apply to this case, and that Oregon's shield law and retraction statute are inapplicable.

March 27, 2012: The district court denied Cox's motion for a new trial. The court first rejected Cox's argument that Padrick should be considered a "special purpose" public official. According to the court, private bankruptcy trustees do not qualify as public officials of any sort. The court also ruled that the "matter of public concern" category was not so broad as to encompass Cox's allegations.

The court next rejected Cox's argument, based on Gertz and other cases, that defamation defendants can only be held liable for compensatory damages if the jury finds negligence. After an extended discussion of Supreme Court case law, the district court concluded that "the question of what standard of liability to apply to a private plaintiff who sues a non-media defendant over allegedly defamatory statements made on a private issue, remains unanswered" as a matter of constitutional law. While the Supreme Court has repeatedly stated that media defendants receive no more First Amendment protection than other defendants, the district court stated that the Supreme Court has not yet "squarely held" that negligence is required in cases like Cox's.

After briefly disposing of EFF's arguments under Oregon's retraction statute and shield law, the district court also ruled that "the evidence supports the damages awarded to each of the plaintiffs," and denied Cox's motion on this ground as well.

March 30, 2012: Cox filed her notice of appeal to the 9th Circuit Court of Appeals.

April 24, 2012: Plaintiffs filed a notice of appeal. They appealed (1) the district court's order denying their motion for partial summary judgment and giving notice that it intends to grant summary judgment for the defendant, (2) the court's supplemental opinion denying their supplemental motion for summary judgment as to blog posts not previously submitted and granting summary judgment for the defendant with respect to all but one blog post, and, (3) the court's oral ruling ordering that their expert witness could not testify to the influence on buyers of derogatory statements appearing in a search engine results page.

October 10, 2012: Crystal Cox filed her opening brief. Cox argued, among other things, that she is entitled to a new trial because the district court gave faulty jury instructions on the fault standards applicable to her claim.

First, Cox asserted that Gertz applies to all public speakers, regardless of whether they are members of the institutional press. Therefore, she argued, even if the plaintiffs are private figures, the jury should have been required to find that she acted negligently in order to hold her liable for damages, and, in order to find her liable for presumed damages, the jury should have had to find that she acted with actual malice.

She further argued that her speech was on a matter of public concern, because allegations that a person is involved in crime generally constitute speech on matters of public concern, particularly allegations of fraud within a government program. She distinguished Dun & Bradstreet v. Greenmoss Builders, Inc. on the basis that her speech was (1) not solely in her interest or that of her specific business audience, (2) available to the public at large, (3) not solely motivated by desire for profit, and (4) not objectively verifiable.

She also argued that allegations of tax fraud by a court-appointed bankruptcy trustee do not lose their public concern status even if they deal with an incident that has not yet been a matter of public discussion. She argued that, as a matter of policy, it is unwise to grant lower protection to speakers unearthing a single instance of misconduct than to those covering a broader national problem or large-scale issue after particular misconduct is discovered. She notes that the absence of an existing controversy may be relevant to whether the plaintiff is a public figure, but not to whether the speech is on a matter of public concern.

Cox relied on dictum in Newcombe v. Adolf Coors Co. to argue that the Ninth Circuit has found Gertz to require a showing of negligence even in private concern cases, and therefore, even if she is found to have spoken on a matter of purely private concern and the plaintiffs are found to be private figures, the court should have instructed the jury that she was only liable if she was negligent.

With respect to the plaintiffs' status as private or public figures, Cox argued that a court-appointed bankruptcy trustee should be treated akin to a public official with regard to the performance of his duties, and that, under New York Times v. Sullivan, the district court therefore should have instructed the jury that the plaintiffs had to prove actual malice. She cited to several state court cases finding that when a court-appointee has government-delegated duties affecting citizens' money or property, those holding such positions should be considered public officials with regard to the performance of their duties. She further argued that that the protections of Sullivan apply to her, regardless of whether she was a member of the institutional media, citing several Supreme Court cases that have applied the case to non-media speakers.

October 17, 2012: The Reporters Committee for Freedom of the Press filed an amicus curiae brief in support of reversal. The Committee noted that the distinction between media and non-media defendants in private-figure libel suits creates heightened interest in broadly defining the term "news media."

Although the Supreme Court has interpreted Gertz to prohibit strict liability in state defamation laws only when the laws are applied to speech on matters of public concern, the Committee argued that it is unresolved whether Gertz is limited to media defendants and that several states do not apply Gertz to nonmedia defendants. This distinction, the Committee argued, makes the definition of "media defendant" critically important in libel cases.

As such, the Committee urged the court to interpret the term "media defendant" broadly enough to include any content provider who has the intent, when gathering information, to disseminate it to the public.

The Committee stated that the Supreme Court has long recognized that the definition of "press" does not depend on the medium of distribution and that many courts, including the Ninth Circuit, have held that testimonial privilege applies to individuals engaged in the practice of compiling information for public dissemination, regardless of their membership in the traditional press. According to the Committee, in the same way that an author's function, not the medium of publication, triggers a shield law's protection, an author's function should determine whether he or she could be classified as a member of the media entitled to the protections afforded by Gertz.

Finally, the Committee argued that courts must apply a broad definition of whether speech is in the public interest for purposes of establishing the standard of fault in libel cases. The Committee examined a number of Supreme Court and Ninth Circuit cases that demonstrate that, when evaluating speech's public nature, courts interpret public concern broadly and look to the "point" of speech by evaluating factors like the target audience and the speaker's motivation. In this case, the Committee argued that, by narrowly focusing its public concern analysis on speech that exposes public corruption, the lower court failed to comply with the broad principles outlined by the Ninth Circuit and the Supreme Court. Therefore, the Committee recommended that the Ninth Circuit reverse the lower court's ruling and remand for a more thorough assessment of whether Cox meets the public concern test under the proper constitutional standards.

October 17, 2012: SCOTUSblog filed an amicus curiae brief in support of neither party. SCOTUSblog stated that, while it takes no position on the merits of the dispute, it filed a brief to illustrate how the criteria for liability applied by the district court could generate incorrect results in the case of a blog that provides a public service and should receive First Amendment protections

The brief notes that SCOTUSblog could be subject to allegations of libel and defamation like those asserted in this case, because it publishes strongly worded critiques that may offend their subjects.

Moreover, SCOTUSblog asserted that it could not satisfy several of the criteria articulated by the district court, leaving it vulnerable to an adverse decision in a defamation case: only one of the blog's contributors has any training in journalism, the blog does not have media credentials or proof of affiliation with any recognized news entity, it does not as a general rule do any fact-checking, and it does not maintain notes of conversations, interviews, or research. Given that the court did not specify how many characteristics the defendant would need to posses to qualify for First Amendment protections afforded to "media," the blog expressed concern that it would not qualify. This risk of liability would, it argued, have a chilling effect on the content the blog posts, which will result in less complete coverage of the Supreme Court.

SCOTUSblog therefore requested that the Ninth Circuit establish that non-traditional news sources that provide a useful public service by gathering, analyzing, and disseminating information receive the same First Amendment protections afforded to traditional news sources, even if they cannot make the showings the district court outlined in this case.

December 7, 2012: The plaintiffs filed their response brief and cross-appeal. According to Obsidian and Padrick, Cox failed to preserve objections to the jury instructions at trial. The plaintiffs further argued that the trial court did not commit a plain error that warranted reversal despite Cox's failure to object, because "First Amendment protection of false speech [is] the exception, not the rule." Any error that did occur was harmless, plaintiffs claimed, because "Cox's undisputed conduct establishes negligence and a reckless disregard for the truth or falsity of [her] statements."

On cross-appeal, plaintiffs argued that the district court erred in finding that certain of Cox's blog posts were non-actionable opinion and granting Cox summary judgment on those blog posts. Plaintiffs noted that these posts, which purported to be "Truthfully Posted," asserted that the plaintiffs had committed numerous crimes, including fraud, bribery, money laundering, and possibly hiring a hit man. According to the plaintiffs, "[t]here is nothing figurative or hyperbolic about these accusations," and it "is not necessarily a reasonable assumption" that "reasonable readers will view blogs as inherently less reliable than other sources of information." Thus, they argued, the trial court should have left the question of whether these posts contained opinions to the jury.

February 4, 2013: Cox replied, arguing that, even under plain error review, the judgment below must be reversed because: Gertz applies to all public speakers; Cox spoke on matters of public concern; Gertz applies even to speech on matters of private concern; and Padrick was a public official for purposes of the Sullivan analysis. She also asserted these arguments were preserved for review because the trial court was "aware of Cox's position that she was entitled to First Amendment protections" and had rejected her objection earlier in the trial. Additionally, Cox argued that the district court correctly held that the other blog posts at issue were not libelous. Cox conceded that Internet speech "is not categorically immune from defamation liability," but, based on the context of the statements at issue, Cox claimed, "even the statements that might in isolation seem like factual assertions would be seen by reasonable readers as opinions."

January 17, 2014: The Ninth Circuit issued its opinion. The court held that "liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and actual damages."

The court, reviewing the judgment de novo, concluded that Gertz's protection for defendants in private defamation actions is not limited to institutional media defendants; the court held that a "First Amendment distinction between the institutional press and other speakers is unworkable" and constitutional protections cannot turn on the identity of the speaker-regardless of whether "the defendant was a trained journalist, formerly affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others' writings, or tried to get both sides of a story." The court noted that the Supreme Court has "repeatedly refused in non-defamation contexts to accord greater First Amendment protection to the institutional media than to other speakers," and that every other circuit to consider the question has found that Gertz applied broadly to non-institutional speakers.

The court did not decide whether Gertz is limited to speech involving matters of public concern, because it found that Cox's statements addressed such issues. The court stated that "[p]ublic allegations that someone is involved in crime generally are speech on a matter of public concern," and the allegations in this case "raised questions about whether [defendants] were failing to protect the defrauded investors because they were in league with their original clients." This allegation was not merely a matter of private concern because it was not "solely in the individual interest of the speaker and its specific business audience," was published at large, and was not "like advertising" and therefore "unlikely to be deterred by incidental state regulation."

The court refused to apply Sullivan's actual malice standard, however, holding that bankruptcy trustees are not "tantamount to public officials."

On the plaintiffs' cross-appeal, the court affirmed the district court's grant of summary judgment on the other blog posts at issue in the original suit. The court found that the "general tenor of Cox's blog posts negates the impression that she was asserting objective facts," and that the name of the website-obsidianfinancesucks.com-"leads ‘the reader of the statements [to be] predisposed to view [the blog posts] with a certain amount of skepticism.'" The court also relied on the fact that Cox's stream of consciousness-like sentences indicated that they were expressions of "feelings rather than assertions of fact." Cox's "consistent use of extreme language," including her assertion that one of the plaintiffs had hired a hit man to kill her, also weighed in favor of finding that the blog posts did not assert facts. Finally, the court held that the statements at issue were not "sufficiently factual to be proved true or false" because they were published on a "non-professional website containing consistently hyperbolic language."

The court remanded the case to the district court to conduct a new trial on the single post still at issue in compliance with Gertz, stating that the district court must instruct the jury that it cannot find Cox liable for defamation unless it finds that she acted negligently and that it cannot award presumed damages unless it finds that Cox acted with actual malice.

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Blog Post

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Tell Us, Judge Posner, Who Watches the Watchmen?

In what is now their widely publicized exchange, U

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Righthaven's Copyright Trolling is a Bankrupt Idea

It’s been several months since we last checked up on Righthaven.  How is everybody’s favorite copyright troll doing?

Well, they might be going bankrupt:

The Las Vegas copyright-trolling firm Righthaven told a Nevada federal judge Friday [September 9, 2011] it might file for bankruptcy protection, or cease operations altogether.

To prevent that, Righthaven is asking U.S. District Judge Philip Pro to stay his decision requiring Righthaven pay $34,000 in legal fees to an online commenter it wrongly sued for infringement.

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Baby Brady Photos Removed, But Did AG's Office Overstep Its Bounds?

If you've been living in Boston, you've undoubtedly heard the recent uproar over a local website publishing a photo of Ben Brady, the 20-month-old son of New England Patriots quarterback Tom Brady and supermodel Gisele Budchen, playing with his parents on a Costa Rican beach.

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The SLAPP-Happy Story of Rakofsky v. Internet

By now, you've perhaps heard of the plight of one Joseph Rakofsky, the man who sued everyone who ever wrote about him on the Internet. In short: Man represents defendant in murder trial; judge declares mistrial; judge says scathing things about man's professional competence; newspaper covers the unusual mistrial; law bloggers pick up story; man brings 75-defendant lawsuit against everybody who wrote about him. CMLP's full run-down of the lawsuit is live; give it a click for the nitty gritty. Go ahead, I'll wait.

Jurisdiction: 

Subject Area: 

Content Type: 

Rakofsky v. The Internet

Date: 

05/11/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Over 70 Named Parties; Newspapers, Journalists, Bloggers, and other Individuals

Type of Party: 

Individual

Type of Party: 

Individual
Organization
Large Organization
Media Company

Court Type: 

State

Court Name: 

Supreme Court of the State of New York; County of New York

Case Number: 

105573-2011

Legal Counsel: 

Eric Turkewitz of the Turkewitz Law Firm, also a defendant, and Marc J. Randazza of the Randazza Legal Group (for at least 16 individuals comprising 35 named defendants); Chetan A. Patil and Kevin T. Baine of Williams & Connolly, L.L.P. (for the Wash

Publication Medium: 

Blog
Email
Print

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

In March 2011, Joseph Rakofsky represented a defendant in a murder trial in Washington, D.C. According to court filings, on April 1 he withdrew as counsel, leading to a mistrial, at which time the presiding judge made a number of unflattering statements about Mr. Rakofsky's performance at trial. The Washington Post originally reported on the mistrial. Other publications, like the Washington City Paper, soon followed. From there, Mr. Rakofsky's story spread throughout the legal blogosphere, drawing comment from dozens of bloggers.

On May 11, Mr. Rakofsky filed suit in New York state court against the Post, the City Paper, and many bloggers who had written about him. At issue is the way Mr. Rakofsky's removal from the murder trial has been characterized: In his complaint, Mr. Rakofsky maintains that he left the murder trial by his own motion. Media coverage, like the Post article, focused on the judge's comments about Mr. Rakofsky's command of legal procedures, the fact that Mr. Rakofsky stated in court that he had never before tried a case, and an alleged email from Mr. Rakofsky to an investigator instructing the investigator to "trick" a witness into changing her testimony. The Post quotes the judge as telling Mr. Rakofsky that his trial performance was "below what any reasonable person would expect in a murder trial." A transcript of the judge's comments is now available. The bloggers sued by Mr. Rakofsky generally describe him as "too incompetent to handle the case," or otherwise suggest that the mistrial was due to Mr. Rakofsky's "inexperience."

Mr. Rakofsky initially sued 74 parties; the complaint often names both individual bloggers and their associated businesses. (For example, the complaint names both "The Law Offices of Michael T. Doudna" and "Michael T. Doudna, individually.")

The initial complaint contains two causes of action: (1) defamation, and (2) violations of sections 50 and 51 of the New York Civil Rights Law, alleging that defendants used Mr. Rakofsky's name and picture for commercial purposes without his consent.

On May 16, Mr. Rakofsky amended his complaint to add a count of intentional infliction of emotional distress and a count of interference with Mr. Rakofsky's contracts with other clients. The number of defendant parties also rose to 75.

As of June 1, 2011, some defendants apparently had not yet been served. 

On June 3, New York attorney Eric Turkewitz and Nevada attorney Marc Randazza, representing approximately 30 of the named defendants (including Mr. Turkewitz himself), motioned for a time extention for all defendants, to help organize what the motion calls "the oncoming blizzard of paperwork" as various defendants respond to the complaint. Mr. Turkewitz also submitted an affidavit in which he discussed the background of the case and the legal issues involved.

On June 4, New York attorney David Brickman, representing defendants Maxwell Kennerly and Mr. Kennerly's law firm The Beasley Firm, filed a motion to dismiss. The accompanying memorandum argues that Mr. Kennerly's blog post is a combination of opinion and fair reporting of court proceedings; thus, according to the memo, the case should be dismissed.

One June 13, Mr. Brickman, also representing Mirriam Seddiq and Jameson Koehler, filed two more motions to dismiss. The motions are mostly identical to Mr. Kennerly's motion.

Update:

6/13/2011 - Rakofsky's attorney, Richard Borzouye, files notice that on July 1 he will move to withdraw from the case. On the same day, acting pro se, Rakofsky files a memo opposing the pro hac admission of Marc Randazza.

6/15/2011 - Defendant Mace Yampolsky answers the complaint and asserts affirmative defenses including, inter alia, that the court lacks personal jurisdiction, that the complaint fails to state a claim for which relief can be granted, and that Rakofsky's lawsuit is frivolous. Yampolsky also seeks sanctions and attorneys' fees.

6/17/2011 - Marc Randazza and Eric Turkewitz file “reply affidavits” in support of Randazza's pro hac admission; the "affidavits" discuss communication between Rakofsky, Borzouye, and the defense.

6/22/2011 - Reuters and its reporter Daniel Slater file notice of a motion to dismiss. The motion and accompanying memo discuss the merits of the defamation and misappropriation claims.

On the same day, Eric Turkewitz files an affidavit, partially opposing Richard Borzouye's motion to withdraw as Rakofsky's attorney. Turkewitz expresses concern with the corporate plaintiff's impending lack of counsel.

6/24/2011 - Defendant Michael Doudna files notice of a motion to dismiss for lack of personal jurisdiction; the motion also seeks sanctions against Rakofsky for bringing a "frivolous" lawsuit in "bad faith." Harmony Kenney, who operated Doudna's website, files a supporting affidavit.

7/20/2011 - The Washington Post, its reporter Keith Alexander, and its researcher Jennifer Jenkins, move to dismiss. The motion discusses both substantive issues (including that the Post article is protected by the fair report privilege) and jurisdictional issues (long-arm jurisdiction over Alexander and Jenkins).

7/21/2011 - Georgia attorney Jeanne O'Halleran files a motion to dismiss, and an accompanying affidavit. The memorandum in support of the motion argues, inter alia, a lack of personal jurisdiction and that O’Halleran’s statements were a fair and accurate report, and asks for sanctions. The filings include a copy of the D.C. murder-trial transcript from the day before the mistrial, and a copy of the investigator's "motion" that raised ethical issues.

On the same day, the Washington City Paper and its associated defendants file a motion to dismiss on similar grounds, along with affidavits from its reporter, publisher, and parent company VP/CFO. The City Paper and O'Halleran are both represented by Davis Wright Tremaine.

7/22/2011 - The trial court grants Richard Borzouye's motion to withdraw as Rakofsky's attorney. The court stays proceedings until September 14, to allow Rakofsky to find a new attorney.

6/28/2012 - The court (Hagler, J.) holds a hearing on the pending motions to dismiss and on a motion by Rakofsky to submit a second amended complaint. The defendants, through selected representatives among defense counsel, and the plaintiffs, represented by a new attorney (Matthew Goldsmith, Esq.), argue the application to Rakofsky's claims of the fair report privilege, the republication privilege (for those defendants who republished an original account in the Washington Post), 47 U.S.C. § 230 (for one defendant who operates an online forum), Rakofsky's status as a public figure, and assorted jurisdictional issues. Plaintiffs' counsel also argue that new claims that they have proposed to add to the case are not duplicative of their defamation claim. At the end of the hearing, Judge Hagler took the motions under advisement, but stated to plaintiffs' counsel:

...Right now there's a very high standard to hold a newspaper liable for -- pardon the pun -- for libel, l-i-b-e-l. ... I don't see how you make that burden. And what I suggest is, is that you seriously speak to your client about withdrawing all these claims. And at the end of the day, I'm going to make a decision. I don't think it's going to be -- based upon this argument, and I'm not making a ruling now, it doesn't look like it's going to be in your favor.

(Transcript p. 91, ll. 10-20).

7/1/2012 - Rakofsky, in a letter to the court over his own name, argues that his proposed claim for negligence in his second amended complaint is not duplicative of his defamation claim.

1/2/2013 - After a six month period in which plaintiffs did not withdraw their claims as urged by the court at the June 28, 2012 hearing, the defendants represented by the Turkewitz Law Firm and Randazza Legal Group file a motion for sanctions against plaintiffs and attorney Goldsmith for vexatious conduct and frivolous claims.

 4/29/2013 - The court consolidated all pending motions and issued an order addressing these motions. The court dismissed claims for lack of personal jurisdiction against the defendants that so moved, finding that Rakofsky did not establish that the defendants engaged in any purposeful activity and minimum contacts in New York, such that New York's long-arm jurisdiction statute would apply. The court also granted the motions to dismiss on the defamation claim substantively, finding that the defendants' statements regarding the mistrial were not defamatory, the allegations of incompetence and substance of the allegations of bad ethical behavior were protected by New York's fair report privilege, and all other statements were either opinions based on disclosed facts or pure opinion. The parties that republished or summarized the Washington Post story were also found to have a valid wire service republication defense.

The court also dismissed the intentional infliction of emotional distress claim, finding no showing of the requisite "extreme and outrageous conduct," and the intentional interference with contract claim, finding that claim inadequately  pleaded. The court dismissed the misappropriation of name or likeness claims under N.Y. Civil Law §§ 50-51, finding this reporting under the "newsworthiness" exception to those claims.

The court denied Rakofsky's leave to amend the petition to add claims of injurious falsehood, prima facie tort, and negligence, finding the injurious falsehood and negligence claims duplicative, and finding that Rakofsky will be unable to to plead special damages for the prima facie tort.

The court also denied without prejudice Rakofsky's motions to discontinue the action against eight of the defendants, and for default judgment against seven of the plaintiffs, because Rakofsky did not adequately identify the parties at issue. As to the motion for default, the court advised Rakofsky to consider "if it is appropriate to seek this relief again based on the rulings herein." The court declined to issue sanctions sought by both sides.

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The Sound of Fury in Recent Righthaven Cases

Two legal developments in Nevada and Colorado last week make Righthaven (previous post here) a textbook example of how not to win a lawsuit.  In their cases against the Democratic Underground (of which details can be found in the CMLP legal threats database) and Brian Hill (whose case filings are available on Scribd), Righthaven appears to be suing without owning the copyright and picking a fight with the judge handling dozens of still-pending cases, respectively.

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Is Righthaven Harming the News Industry?

Righthaven, a copyright-enforcement entity that sues first and asks questions later, comes up a lot here at the CMLP, both on the blog and in the legal threats database.  As a recent profile on CNN.com illustrates, Righthaven’s founder Steve Gibson thinks he is simply enforcing content owners’ rights within the digital landscape:

What really is happening here is a realization of the infringement community that the days of merely receiving a takedown letter are over, and that people will have a means to protect their ownership rights. Like you're taught in grammar school, it's not right to take someone else's work, whether it's cheating or plagiarizing. Whether the Internet permits you to do it, that doesn't make it right.

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Content Type: 

Federici v Pignotti et al

Date: 

12/17/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Monica Pignotti, Jean Mercer, Charly Miller, Linda Rosa, Larry Sarner, Advocates for Children in Therapy, John Does 1-10

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

Virginia Eastern District Court, Alexandria

Case Number: 

1:2010cv01418

Legal Counsel: 

Amy Owen, Kirstin Zech, Sarah Bagley

Publication Medium: 

Blog
Forum
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Virginia Psychologist Ronald S. Federici is suing multiple parties from multiple states (Florida, New Jersey, Nebraska, Colorado) for defamation, conspiracy, and tortious interference. Defendants are authors of blogs, forum comments, and websites that were critical of his writings and practices. Plaintiff has also named John Does 1-10, alleging conspiracy with unidentified anonymous bloggers and others.
Public documents on this case are available via Pacer.

Update:

3/28/11 -  The court granted the defendants' motions to dismiss for lack of personal jurisdiction.  The court also granted the motion of defendants Pignotti and Mercer to dismiss for failure to state a claim.

5/31/11 - After the claims against the named defendants were dismissed, Federici moved to dismiss without prejudice the claims against the John Doe defendants.

6/1/11 - The court granted Federici's motion to dismiss the remaining claims against the John Does. 

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FTC Flexes Blogger Rules Again

The Federal Trade Commission has reached a second settlement with a marketer over apparent violations of the Commission's rules requiring disclosure of compensated endorsements, particularly on blogs and social media, as well as other contexts in which the compensation (which may include free samples or discounts) is not "reasonably expected by the audience."

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FTC Seeks to Clarify -- and Justify -- Its Blogger Endorsement Guidelines

The Federal Trade Commission recently issued a factsheet in response to questions it received about its revised guidelines requiring disclosure of compensated endorsements.

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7th Circuit Holds Blogger Can Be Prosecuted For Threatening Juror

An alleged white supremacist can be prosecuted under a federal solicitation statute for posting on his blog the name, address and photograph of a juror who helped convict the "leader of a white supremacist organization" of soliciting the murder of a federal district court judge and obstruction of justice, the federal Seventh Circuit Court of Appeals held in a ruling in late June. U.S. v. White, No. 09-2916 (7th Cir. 2010).

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FTC Endorsement Rules Get Their First Workout

The Federal Trade Commission has announced that it has completed its first investigation under the "blog-ola" rules it adopted last year, which require bloggers and other social media posters who receive a free or discounted product or service to disclose the freebie in their reviews or commentary about the product or service, or face the possibility of an FTC enforcement action.  See "Guides Concerning the Use of En

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Calling Out Former Porn Stars? Beware of '2257 Regs'

Celebrity blogger Perez Hilton made a career for himself by taking shots at the Hollywood elite and celebs du jour.

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The Persian Version: Why Support for ACTA Undermines U.S. Promotion of Internet Freedom

"To know and not to know, to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it . . ." –Definition of Doublethink from 1984, George Orwell

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Why Are Bloggers Still Sitting at the Kids' Table? The Popularity of Online News and the Federal Shield Law

Well, it turns out this whole Internet thing is getting pretty popular. According to the Pew Internet and American Life Project, more Americans now get their news from the Internet than from old-fashioned newspapers.

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Google's MP3 Blog Removals: Bloggers, It's Up to You

That feeling—as if a couple dozen voices cried out in terror and were suddenly silenced. If you felt some similar disturbance in the force last week, you might be aware that Google pulled the plug on several MP3 blogs it had previously hosted on its Blogspot service. On Wednesday, The Daily Swarm reported that several prominent bloggers had found their blogs yanked from Google's service.

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Olympic Athletes Can Tweet to Their Hearts' Content

Rejoice, all ye Olympian fans, the International Olympic Committee ("IOC") has said that its athletes can use Twitter!

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