Defamation

Jacobson v. "Almostinnocentbystander"

Threat Type: 

Lawsuit

Date: 

04/23/2012

Party Receiving Legal Threat: 

Anonymous user "almostinnocentbystander"

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

First Judicial District, State of Idaho, Kootenai County

Case Number: 

CV-2012-0003098

Legal Counsel: 

Joel Hazel & Duane Swinton, Witherspoon Kelley (for Cowles Publishing Co., d/b/a The Spokesman-Review)

Publication Medium: 

Blog
Website

Relevant Documents: 

Status: 

Pending

Description: 

On Febraury 14, 2012, Republican presidential nominee Rick Santorum spoke at an event in Coeur d'Alene, Idaho. The Kootenai County Republican Chair, Tina Jacobson, was present at the event and appeared on the stage with Santorum.

The blog Huckleberries Online – which is operated by the Spokesman-Review, owned by the Cowles Publishing Company – covered the event through a blog post with gathered Twitter messages from reporters at the event. According an affidavit filed by the plaintiff, in the comments field following the blog post, a user by the name of "almostinnocentbystander" made the following comment:

Is that the missing $10,000 from Kootenai County Central Committee funds actually stuffed inside Tina's blouse??? Let's not try to find out.

A user by the name of "Phaedrus" then replied, "[m]issing funds? Do tell." User "OutofStaterTater" posted. "Yes, do tell, Bystander. Tina's missing funds at the local GOP, Sheriff Mack, and John Birch Society are coming to town, things are getting interesting around here." Almostinnocentbystander replied:

@Phaed - the treasury has gone a little light and Mistress Tina is not allowing the treasurer report to go into the minutes (which seems common practice). Let me rephrase that ... a whole Boat load of money is missing and Tina won't let anyone see the books. Doesn't she make her living as a bookkeeper? Did you just see where Idaho is high on the list for embezzlement? Not that any of that is related or anything . . . 

The timestamps on the comments were between 3:31pm and 5:25pm. According to the affidavit of Daniel Olivera, manager of the Huckleberries Online blog, the posts by almostinnocentbystander, Phaedrus, and OutofStaterTater were removed around 6pm that day. Mr. Olivera posted the following two days later:

On Tuesday, Huck's online poster almostinnocentbystander made a baseless allegation against Tina Jacobson, Chairwoman of the Kootenai County Republican Central Committee. I deleted that post and three others that referred back to it as soon as I saw them. I also informed almostinnocentbystander that posting privileges at Huck's online have been revoked. In response today, almostinnocentbystander e-mailed this: 'I apologize for and retract my derogatory and unsubstantiated commentary regarding Tina Jacobson.' Huck's online commenters should feel free to flag posts they think are inappropriate -- DFO.

On April 23, 2012, Jacobson filed a complaint in the District Court of the First Judicial District of Idaho, Kootenai County, alleging libel based on the statement made by "almostinnocentbystander." On April 25, Jacobson issued a subpoena duces tecum to Cowles Publishing, seeking the identifying information for "almostinnocentbystander" as a defendant, and "Phaedrus" and "OutofStaterTater" as third-party witnesses. Cowles Publishing filed a motion to quash the subpoena on May 11, arguing that the plaintiff has failed to meet the anonymous speech disclosure standards set forth in Dendrite Int'l v. Does, Doe v. Cahill, and the U.S. District Court for the District of Idaho's S 103, Inc. v. Bodybuilding.com, LLC. Cowles also argued that disclosure in this case would violate Idaho's common law reporter's privilege.

On May 21, 2012, Jacobson responded to the motion to quash. Jacobson argued that Cowles could not take advantage of the state's reporter's privilege law because the company was acting as an Internet service provider, and not as a newspaper, with respect to the Huckleberries Online blog. Jacobson further argued that the commentators had waived their rights by violating the Huckleberries Online terms of service, which instruct users to not post defamatory material, and that the Dendrite test is met, because the comments were defamatory per se. 

On May 29, 2012, Cowles replied to Jacobson's response, asserting again that the statements at issue were protected opinion, that Jacobson is a public figure and thus must also show actual malice, and that Olivera's subsequent investigation into the comments made by "almostinnocentbystander" were subject to protection under the reporter's shield law.

On July 10, 2012, Judge Patrick Luster denied the motion to quash as to "almostinnocentbystander." The court opted to apply the standard for disclosure of anonymous commentators set forth in S 103, Inc., which requires that the plaintiff (1) make reasonable efforts to notify the defendant of a subpoena, (2) demonstrate that the plaintiff would survive a summary judgment motion, and (3) that the court balance the anonymous poster's First Amendment right of free speech against the strength of the plaintiff's case. The court found that Jacobson had made reasonable efforts to notify all three commentators. On the sufficiency of Jacobson's pleadings, the court found first that Jacobson was a public figure for purposes of the lawsuit. Second, the court found that the allegation of a missing $10,000, paired with the almostinnocentbystander''s retraction showed the requisite fault. The court further found that the balance of interests favored disclosure, because "the First Amendment does not protect defamatory speech."

In contrast, the court found that Jacobson had not met the burden for disclosure as to "Phaedrus" and "OutofStaterTater," and accordingly quashed the subpoena as to those parties.

The court ordered Cowles to comply with the subpoena as to "almostinnocentbystander" within fourteen days.

Content Type: 

Subject Area: 

CMLP Notes: 

7/16 AFS created

Jurisdiction: 

Beaverton Grace Bible Church v. Smith

Date: 

02/22/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Julie Anne Smith; Hannah Smith; Kathy Stevens; Jason Stephens; Meaghan Varela

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Circuit Court of the State of Oregon: Washington County

Case Number: 

C121174CV

Legal Counsel: 

Linda K. Williams; Herbert G. Grey

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

On February 22, 2012, O'Neal and the Beaverton Grace Bible Church filed a complaint in the Circuit Court of the State of Oregon for Washington County against Julie Anne Smith, her daughter, and two other blog commentators (the Stephens), alleging defamation and requesting $500,000 in damages arising out of critical comments on the Church's Google reviews page and Smith's blog.

According to the complaint and news sources, Julie Anne Smith and her family were congregants at Beaverton Grace Bible Church for several years when one of the church's employees was dismissed in late 2008. The Smiths met with Pastor O'Neal to express their concerns about this situation and were later allegedly instructed to recant these concerns. The Smiths did not do so and stopped attending church services.

Later, after Oregon police began investigated allegations of child molestation against the Pastor and church, Pastor O'Neal "excommunicated" the Smiths. In response, starting in early 2009, Julie Anne Smith posted her concerns on the Google review page for Beaverton Grace Bible Church, and when these were taken down, she began a blog called Beaverton Grace Bible Church Survivors. Her comments and blog expressed opinion that the church was a "creepy" and unsafe environment and condemned O'Neal for his "extra-biblical legalistic teaching[s]" and allowing a known sex offender into the church. This blog received many similar comments, such as those by the Stephens.

In response, O'Neal and the Beaverton Grace Bible Church filed the complaint in this action. On April 26, 2012, the defendants filed a special motion to strike the defamation claim under Oregon's anti-SLAPP statute. This motion also asserted as defenses that: the speech was comprised of protected opinion; the church and Pastor O'Neal are public figures and there is no evidence of actual malice; and the church autonomy doctrine applies.

On the same day, Beaverton Grace Bible Church and O'Neal filed an amended complaint. An additional defendant, Meaghan Varela, was added for her comments on Smith's blog, and more allegedly defamatory speech on the blog was identified. Accordingly, on May 1, 2012, the defendants filed a second special motion to strike in response to the additional allegations of the amended complaint, as a supplement to their first motion. On May 14, Beaverton Grace Bible Curch and O'Neal opposed the motions to strike and filed a declaration by a congregant to demonstrate that the allegation of allowing a known sex offender access to the church was a false statement.

Update:

On July 23, 2012, the court granted the defendants' special motion to strike. The court found that the statements made were on "issues of public interest," that several of the statements were not provable assertions of fact, and that the balance were pure opinion. The court awarded $16,750 in attorney's fees to defendants  Kathy Stephens and Jason Stephens, and invited defendants Julie Ann Smith, Hannah Smith, and Meaghan Varela to submit statements for fees.

Content Type: 

CMLP Notes: 

KMB created

AFS edited to include motion to dismiss 7/27 AFS

Originally submitted by OMLN attorney Linda Williams, who represents some of the parties.

Jurisdiction: 

Subject Area: 

Art of Living Foundation v. Does 1-10

Date: 

11/05/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John or Jane Doe ("Skywalker"), John or Jane Doe ("Klim")

Type of Party: 

Large Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court, N.D. California, San Jose Division

Case Number: 

10–CV–05022–LHK

Legal Counsel: 

Joshua Koltun

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)
Settled (partial)

Description: 

Substantive Proceedings

The Art of Living Foundation is an international nonprofit organization that, according to its website, is "engaged in stress-management and service initiatives." Two former followers, Skywalker and Klim, published anonymous blogs (entitled "Leaving the Art of Living" and "Beyond the Art of Living") criticizing the Art of Living's practices and their leader, Sri Sri Ravi Shankar. In addition to their critiques, they also provide excerpts from the Art of Living's teaching manuals and other materials (normally provided to members in courses for a fee).

On August 14, 2010, Skywalker and Klim received a demand from Art of Living (from its headquarters in India) to take down this material. The branch of Art of Living in the United States (based in California) also filed a complaint on November 5, 2010, in the U.S. District Court for the Northern District of California. Art of Living alleged copyright infringement under federal law for the blogs' publication of portions of the "Breath Water Sound Manual." In addition, Art of Living alleged misappropriation of trade secrets, defamation, and trade libel under California law, based on the aforementioned publication and the Does' critical statements about the organization.

On January 31, 2011, the Does filed a motion to dismiss the defamation and trade libel claims for failure to state a claim. They also filed a special motion to strike the defamation, trade libel, and trade secrets claims under California's anti-SLAPP statute. Art of Living filed both an opposition to the motion to dismiss and an opposition to the motion to strike on March 17, 2011, to which the Does replied (reply re: motion to dismiss; reply re: motion to strike) on April 6, 2011. After a hearing in May, on June 15, 2011, U.S. District Judge Koh dismissed the defamation and trade libel claims and denied (without prejudice) the motion to strike. Judge Koh found that the statements at issue were opinions rather than assertions of fact, resolving the defamation claim, and that Art of Living did not sufficiently allege harm or damages for the trade libel claim. Judge Koh also held that discovery on the trade secrets claim could not proceed until Art of Living identified the trade secrets with reasonable particularity.

On July 14, 2011, Art of Living proceeded to amend their complaint in accordance with the June 15th order, removing the dismissed claims from their complaint. Art of Living also provided further detail and content identification in regards to the remaining copyright infringement and trade secrets claims. The Does answered the amended complaint on July 28, 2011.

The Does then filed a second special motion to strike on September 12, 2011 (with the redacted version entering the docket on January 9, 2012), this time directed at the remaining trade secret claim. This motion was opposed by Art of Living on September 29, 2011. Additionally, on September 27, 2011, the Does filed a motion for summary judgment on the copyright infringement claims. Art of Living filed an opposition to this motion on October 11, 2011, which the Does replied to on October 24, 2011. 

In an order on May 1, 2012, Judge Koh granted summary judgment on the copyright infringement claim. Judge Koh found that Klim was entitled to summary judgment based on noninfringement, and that Art of Living did not provide enough support for its claim of authorship of the manual to pursue a copyright infringement claim against Skywalker because the copyright registration certificate was obtained after the litigation began). The district court also granted Klim's motion to strike the trade secrets misappropriation claim while denying the motion to strike in regards to Skywalker. While Skywalker conceded that there was at least some overlap between his blog postings and the materials Art of Living designated as trade secrets, Art of Living presented no evidence that Klim misappropriated any of these materials.

Anonymity in Art of Living v. Does

Throughout the proceedings described above, there was an ongoing issue with respect to the defendants' ability to proceed anonymously.

On November 9, 2010, Art of Living filed a motion for leave to take expedited discovery. Pursuant to an ex parte order by Magistrate Judge Beeler, on December 20, 2010, Art of Living subpoenaed Google and Wordpress to reveal the identities of bloggers Skywalker and Klim. Not long after being notified of this by Google, the Does filed a motion to quash the subpoena. In response, Art of Living filed an opposition on March 22, 2011, and the Does replied on April 28, 2011. On August 10, 2011, Magistrate Judge Lloyd denied the motion to quash in regards to Skywalker's claim while granting it for Klim, finding that the copyright claim was a sufficient basis for permitting identification of Skywalker.

In response, on August 24, 2011, Skywalker filed a motion for relief from the order of the Magistrate Judge regarding the motion to quash. On August 31, 2011, Public Citizen, joined by the Electronic Frontier Foundation and the ACLU, submitted an amicus brief. This brief urged the court to apply the balancing test adopted in Dendrite Int'l v. Does, despite the copyright claim being considered in the case. Art of Living's opposition to the motion for relief was filed on September 16, 2011, and Skywalker replied on September 30, 2011.

On November 9, 2011, Judge Koh granted the motion, finding that Skywalker's First Amendment right to anonymous speech outweighed Art of Living's need for discovery at this time. Judge Koh applied the Highfields Capital two-part test (which relied heavily on Dendrite) for determining whether to allow discovery seeking the identity of an anonymous defendant: "(1) The plaintiff must produce competent evidence supporting a finding of each fact that is essential to a given cause of action; and (2) if the plaintiff makes a sufficient evidentiary showing, the court must compare the magnitude of the harms that would be caused to the competing interests by a ruling in favor of the plaintiff and by a ruling in favor of the defendant."

In a case management conference and corresponding minute order on May 9, 2012, Judge Koh again denied all of Art of Living's motions to disclose Skywalker's identity. By also refusing to extend discovery a setting the trial date and length, these rulings potentially allowed Skywalker to defend at trial anonymously.

Related Case and Settlement

On June 8, 2012, Judge Koh granted Art of Living's motion to relate Art of Living Foundation v. Eng-An Chou (Docket no. 5:12-CV-02748-LHK) to this case. Chou involves Art of Living's claim that Eng-An Chou breached her contracts with Art of Living by disclosing some of the organization's confidential texts to Skywalker for posting on his blog.

The next week, the cases were referred to Judge Joseph C. Spero for a Magistrate Judge Settlement Conference. The conference was held on June 12, 2012 and a settlement was reportedly reached. As part of the settlement agreement, Skywalker and Klim published a joint statement informing readers of the settlement and would proceed to freeze their blogs on June 19, 2012. The joint statement noted that there are no restrictions on the Does to create new blogs, and that no identity had or would be disclosed in relation to this litigation and settlement. Art of Living also agreed to drop the lawsuit with prejudice (also dropping the separate suit against Chou) and to pay Skywalker and Klim's attorney's fees.

Jurisdiction: 

Subject Area: 

Content Type: 

Britain's New Libel Bill: Better on Libel Tourism, But Worse on Anonymous Online Speech

Britain's effort to reform its defamation laws and shed London's title of "libel capital of the world" has been chugging along for several years, but now it looks like it's in sight of the last stop: The government unveiled its proposed new defamation bill in early May.  So what has all this time and effort wrought?

Jurisdiction: 

Subject Area: 

How Should We Measure Damages for Defamation Over Social Media?

On April 24, 2012, a Texas jury awarded $13.78 million to a married couple in a case based upon an extended campaign of defamation on the website Topix.com - to be specific, more than 1,700 separate statements accusing the plaintiffs of a wide array of criminal activity and, shall we say, unusual sexual practices, among other misconduct.

Jurisdiction: 

Subject Area: 

Content Type: 

Brown v. Doe

Date: 

03/27/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John or Jane Doe

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Clark County District Court, Nevada

Case Number: 

A-12-658911-C

Legal Counsel: 

Tony L. Abbatangelo

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On March 27, 2012, Mary and Phil Brown filed suit in Nevada state court against an annonymous online commenter. According to news reports, a commenter on the Las Vegas Review-Journal's website posted allegedly defamatory statements about the plaintiffs' romantic history. The Browns instituted the defamation action and subpoenaed the Review-Journal for the commenter's identity.

On April 6, Doe, through an attorney, filed a motion to quash the subpoena. Doe argues that the court should apply the Dendrite test to determine whether Doe's identity should be revealed. According to the motion to quash, the Browns failed to meet the first three prongs of the Dendrite test by failing: (1) to make reasonable attempts to contact Doe; (2) to allege the specific defamatory statements at issue; and (3) to allege a prima facie case that could withstand summary judgment by failing to demonstrate that the comments were made negligently. In arguing that Doe's contested post was not written negligently, Doe alleges that the post was written based on information from individuals with knowledge of the Browns' relationship history. Finally, under the fourth Dendrite prong—a balancing test between the parties' rights—Doe argued that the Browns had suffered little if any harm from the comment, and that the Review-Journal's comment sections were so filled with "nonsensical comments" that no reader would take them seriously. 

Content Type: 

CMLP Notes: 

4/20/12: JS creating

Jurisdiction: 

Subject Area: 

Judge Explains His Decision on Blogger to the Chicken Littles

Federal Judge Marco A. Hernandez got a lot of attention and cyberchatter late last year when he held that blogger Crystal Cox was not protected by Oregon's reporters' shield law, leading to a $2.5 million defamation verdict against her. See Obsidian Finance Group, LLC v. Cox, No. CV-11-57-H (D. Or. Nov. 30, 2011).

Jurisdiction: 

Subject Area: 

Guadagnini Violin Shop v. TruthTeller1790

Threat Type: 

Lawsuit

Date: 

01/23/2012

Party Receiving Legal Threat: 

Eric Swanson, a.k.a. TruthTeller1790

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Circuit Court for Cook County, Illinois

Case Number: 

2012-L-000802

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On January 23, 2012, the Guadagnini Violin Shop (the "Shop") and owner Chunyee Lu filed suit in Illinois state court against a then-anonymous online reviewer. The complaint alleged that on January 21, 2011, a person using variations on the screen name "TruthTeller1790" posted negative reviews of the Shop on multiple user-review sites, including Yelp and Kudzu. All of the reviews were posted from the same IP address. Plaintiffs attached copies of the contested reviews to the complaint, and alleged that the reviews contained numerous libelous statements, such as allegations that Guadagnini Violin Shop performed unnecessary repairs and sold overpriced and falsely-identified instruments.

The complaint alleged counts of defamation (per se and per quod), false light, and tortious interference, and sought money damages.

On February 7, 2012, plaintiffs filed an amended complaint, identifying Eric Swanson as "TruthTeller1790." According to the amended complaint, plaintiffs traced the IP address linked to the reviews to cable provider RCN Corporation, which identified Swanson as that address's subscriber. The amended complaint alleged that Swanson operated a competing Chicago violin shop.

In addition to the original four counts of defamation, false light, and tortious interference, the amended complaint added counts of violations of Illinois' Consumer Fraud and Deceptive Business Practices Act, its Uniform Deceptive Trade Practices Act, and a common-law trade disparagement claim. The amended complaint also added requests for punitive damages.

Content Type: 

Subject Area: 

CMLP Notes: 

3/23/2012: JS creating

Jurisdiction: 

Ron Paul Campaign Gets a Lesson on Civil Liberties

Ron Paul's presidential campaign has been having a rough go of it: He has yet to win a Republican state primary or caucus.  But now his campaign's also-ran streak extends into the courtroom too, in a victory for the right to anonymous free speech.

Jurisdiction: 

Subject Area: 

Content Type: 

No, Sandra Fluke Does NOT Have a Valid Defamation Claim Against Rush Limbaugh

A Note from the Staff of the CMLP: This post contains a candid discussion of First Amendment issues, including the use of terms that some readers might find offensive. We do not censor such terms in a blog contributor's post when relevant to the topic discussed, because we believe that an analysis of the constitutional right to use certain language requires the freedom to discuss that language plainly and openly.

Jurisdiction: 

Subject Area: 

Content Type: 

Ron Paul 2012 v. Does 1-10

Threat Type: 

Lawsuit

Date: 

01/13/2012

Party Receiving Legal Threat: 

John Does 1-10

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

U.S. District Court, Northern District of California

Case Number: 

CV-12-00240

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

On January 13, 2012, Ron Paul's presidential campaign organization sued anonymous YouTube users in federal court over a video posted on YouTube by user "NHLiberty4Paul" on January 4, 2012. The video is critical of then-Republican presidential candidate Jon Hunstman, focusing on Huntsman's ambassadorship to China. It concludes by suggesting that viewers vote for Ron Paul instead.

The complaint alleges that the video was created by parties opposed to Paul's presidential campaign, and was "deliberately calculated" to harm Paul's reputation by attaching his name to a "malicious" and "offensive" video. It further states that the video is "a classic case of dirty politics," and that Paul's campaign has absorbed "scathingly negative" media attention from news outlets that believed the video originated from the Paul campaign. The complaint alleges two counts of infringement of the Paul campaign's unregistered trademark in the name "Ron Paul" under 15 U.S.C. 1125(a), and a count of defamation. The campaign seeks monetary damages, the removal of the video, and injunctions against future use of the "Ron Paul" mark.

On January 18, the Paul campaign applied for expedited discovery to identify the YouTube users who posted the video. The application argues that the case cannot proceed until the defendants are identified, thus warranting expedited discovery on this point. The campaign seeks documents both from YouTube and from Twitter, where an account also called "NHLiberty4Paul" exists. Paul's campaign manager, Jesse Benton, also filed a declaration (scroll down) stating that the Paul campaign did not produce the Huntsman video.

UPDATE:

On January 25, a magistrate judge denied without prejudice the campaign's motion for expedited discovery. The magistrate applied the test from Columbia v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), which requires plaintiffs to (1) identify the anonymous persons with some specificity; (2) describe all other attempts the plaintiff has made to find the anonymous persons; (3) show that the lawsuit could survive a motion to dismiss; and (4) show a "reasonable likelihood" that the anonymous persons could be identified through discovery. Since the Paul campaign's motion did not address these factors, the magistrate denied it but invited the campaign to refile with the appropriate information. 

On January 27, Public Citizen, the Electronic Frontier Foundation, the American Civil Liberties Union, and the Digital Media Law Project filed a motion for leave to file an amicus brief in the case, urging the court to clarify the order of January 25th and impose the standard first articulated in Dendrite International v. Doe, 775 A.2d 756 (N.J. App. 2001). This standard requires (1) plaintiffs to provide reasonable notice to potential defendants and an opportunity for defendants to defend their anonymity before issuance of a subpoena; (2) plaintiffs to allege with specificity the speech that has allegedly violated the plaintiff's rights; (3) the court to ensure that the claim states a cause of action upon which relief can be granted as to each statement and against each defendant; (4)  plaintiffs to produce evidence supporting each element of its claims; and (5) the court to weigh the potential harm to the plaintiff from being unable to proceed against the harm to the defendant from losing the First Amendment right to anonymity.

On February 1, 2012, the court granted the motion to file an amicus brief, and instructed the Paul campaign to address the arguments raised by the amici if they decide to refile a motion for expedited discovery.

On February 12, 2012, the Ron Paul Campaign filed a revised application for expedited discovery. The court invited the amici Public Citizen, the Electronic Frontier Foundation, the American Civil Liberties Union, and the Digital Media Law Project to file a memorandum addressing the revised application. The amici filed a memorandum on February 22, 2012. On February 29, 2012 the Ron Paul campaign committee filed a reply brief.

On March 8, 2012, the court again denied the campaign's motion for expedited discovery.  The judge declined to determine which test, Seescandy.com or Dendrite, applied in the case, and instead looked to the common factor in both tests: whether the plaintiff had "filed a valid complaint so the Court can be assured that the alleged claims will withstand a motion to dismiss."  The court ruled that the Paul campaign had not, writing that its arguments failed to connect the YouTube video to a commercial venture as required by the Lanham Act.  As such, its trademark claims failed to overcome the first hurdle in both tests, and no further decision as to which test applied was needed. 

Having decided that the federal causes of action failed to state a claim, the court declined to grant expedited discovery on the basis of the remaining state-law defamation claim.  The court also noted that if the Lanham Act claims were dismissed, "issues develop" over the court's ability to exercise supplemental jurisdiction over the state law claims.

Content Type: 

CMLP Notes: 

1/20/12: Sharkey created

1/23/12: JH editing

2/7/12: AS edits

3/8/12: AB edits

3/15/12: AS added some interlocutory docket entries

Threat Source: 

RSS

Jurisdiction: 

Subject Area: 

Jones v. Dirty World, LLC

Date: 

12/23/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Dirty World Entertainment Recordings, LLC; Hooman Karamian; Dirty World, LLC; Dirty World Entertainment, LLC

Type of Party: 

Individual

Type of Party: 

Media Company

Court Type: 

Federal

Court Name: 

U.S. District Court, Eastern District of Kentucky

Case Number: 

2:09-cv-00219-WOB

Verdict or Settlement Amount: 

$338,000.00

Legal Counsel: 

Alexander C. Ward and Alexis B. Mattingly (Huddleston Bolen LLP) and David Gingras (Gingras Law Office, PLLC) (for defendants Hooman Karamian and Dirty World, LLC)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

On December 23, 2009, a Jane Doe filed a lawsuit in federal court. The plaintiff intended to sue TheDirty.com, alleging that a number of posts on the blog (self-described as a "reality blogger . . . all about gossip and satire") defamed her.

According to court documents, TheDirty operates through user-submitted posts. Readers of the site submit posts, and TheDirty's editor, Nik Richie, selects some of the submissions for publication on the site. Richie also adds one or two sentences of comment to each post.

The contested posts made a number of crude comments about the sexual affairs of the plaintiff, a Cincinnati Bengals cheerleader and schoolteacher. The posts made claims about the plaintiff's promiscuity, among other topics.

The complaint alleged that the posts made a number of false statements about plaintiff's sexual history, and included four counts: defamation, libel per se, false light, and intentional infliction of emotional distress. The plaintiff later filed an amended complaint, more specifically alleging the purported identity of the website's operator, and adding a second libel per se count (bringing the total to five).

Instead of suing the Arizona-based company that operated TheDirty.com, however, the plaintiff named a California company which operated a website called TheDirt.com. According to news reports, this led to a failure to serve the intended defendants. With the served defendant making no response, the plaintiff eventually moved for a default judgment, which was granted by the district court. The default judgment included an $11 million damage award, $10 million of which was punitive.

When the operator of TheDirty.com announced publicly that it had nothing to do with TheDirt.com, the plaintiff moved for leave to file a second amended complaint seeking to add the Arizona operator of TheDirty.com.  The plaintiff did not voluntarily vacate the $11 million judgment; instead, she indicated that she did not trust TheDirty.com's operator when it disclaimed a relationship with TheDirt.com, but wanted to be sure that all of the appropriate parties were named. The amended complaint included the same five counts as the first amended complaint.

Now identified and served, TheDirty moved to dismiss and made two arguments: that jurisdiction in Kentucky was lacking, and the CDA § 230 protected TheDirty. Since the plaintiff only alleged that TheDirty "published" the disputed material, as opposed to "creating" it, TheDirty argued that § 230's protections applied.

The plaintiff, in response, made a number of § 230 arguments. First, she argued that, by adding comments to the user-submitted posts, the operator of TheDirty became a "creator" of the content. Second, she argued that TheDirty was designed to "encourage" users to post defamatory material. Third, she argued that because TheDirty claimed ownership of user-submitted material, the site and its operators become "publishers."

After TheDirty submitted a reply, the court denied the motion to dismiss. The judge focused mainly on the jurisdiction questions, and only briefly discussed § 230, ruling that discovery was required before the § 230 question could be resolved. Shortly thereafter, TheDirty answered the second amended complaint.

Seven months later, TheDirty moved for summary judgment. The motion focused on two arguments: (1) that the disputed posts were submitted by users of the site, and (2) the comments that Richie added to the user-submitted posts were non-actionable opinion. At this point in the litigation, the plaintiff's real name appeared in the case caption.

The plaintiff responded, arguing that because Richie read each user-submitted post before approving it for publication on TheDirty, and because TheDirty encouraged "the development of defamatory material," § 230's protections did not apply. TheDirty then filed another reply, responding in detail to the idea that TheDirty "created" the posts at issue. TheDirty argued that § 230 caselaw was well-established, and that performing editorial/moderation functions did not suffice to make TheDirty the "creator" of the posts.

On January 10, 2012, the district court judge denied TheDirty's motion for summary judgment. The judge based his § 230 ruling on two cases: Fair Housing Council of San Fernando Valley v. Roommates.com, and Federal Trade Commission v. Accusearch. Taken together, according to the judge, these cases stood for the proposition that if a website "specifically encourage[s] development of what is offensive about the content" of the disputed post, § 230 provides no protection. The judge ruled that TheDirty's name and management style, combined with Richie's added comments to the post, meant that TheDirty encouraged the offensive content.

Updates:

05/09/12: The U.S. Court of Appeals for the Sixth Circuit granted Jones's motion to dismiss the TheDirty's interlocutory appeal of the district court's denial of their summary judgment motion. The Court of Appeals held that the denial of a motion to dismiss is not a final order, and that there were not sufficient interests at stake to hear TheDirty's appeal prior to final adjudication.

01/25/13: The first trial of the matter ends in a hung jury after two days of deliberation; the district court judge declared a mistrial.

07/11/13: After retrial, a jury awarded Jones $338,000 in damages.

08/12/13: The trial court denied the defendants' motion for judgment as a matter of law, again rejecting the application of Section 230 to the facts of the case. Based upon the legislative intent of Section 230 to encourage voluntary censorship of offensive content, the court held that the protection of the statute does not extend to intermediaries who actively encourage the posting of offensive material: "[T]he Act's text indicates that it was intended only to provide protection for site owners who allow postings by third parties without screening them and those who remove offensive content."

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1/12/2012: Pulling it together; will be done first thing tomorrow (JS)

1/13: Ready for review (JS)

1/13: JH editing

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Everybody's Public to Somebody?: Social Media and the Public/Private Divide

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First Amendment doctrine is sort of obsessed with the idea of a public/private divide – the idea that we can clearly slice society up into those things that are "public" (about which we want robust discussion, so we protect that discussion with the Bill of Rights) and those that are "private" (less societally important, so less protected).

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A New Heavyweight Steps in the Ring as Round 2 Begins in Obsidian v. Cox

Given the hoopla it caused a few weeks ago, you may already be aware of the somewhat notorious ruling in the Obsidian Finance Group v.

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Promoting Vetted News Content on Social Media (or, How Not to Give Your Lawyer a Heart Attack)

By now, it is a given that many journalists have a regular presence on social networking services. The value of social media for gathering information, developing the journalist’s public persona, and promoting the journalist’s work is well-recognized.

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No, the Sky is Not Falling: Explaining that Decision in Oregon

There's been a lot of buzz online (and now in the New York Times) about a decision by a federal judge in Oregon last week that held that blogger Crystal Co

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