Defamation

CAIR v. Whitehead (Letter)

Threat Type: 

Correspondence

Date: 

01/06/2004

Party Receiving Legal Threat: 

Andrew Whitehead

Type of Party: 

Large Organization

Type of Party: 

Individual

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

The Council on American-Islamic Relations (CAIR) sent a cease-and-desist letter to Andrew Whitehead, claiming that Whitehead had made defamatory statements about the organization on his website. The letter stated that CAIR would file a lawsuit against Whitehead unless Whitehead agreed to voluntarily cease-and-desist the publication of defamatory statements about CAIR. Furthermore, the letter stated that CAIR would file a lawsuit if Whitehead published the cease-and-desist letter, claiming that it was personal and confidential. The letter is currently openly available on Whitehead's website.

CAIR followed through with its threat and intitated a lawsuit in April 2004. More information on that lawsuit is available here.

 

Content Type: 

Jurisdiction: 

Subject Area: 

Internet Solutions v. Marshall

Date: 

11/01/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Tabatha Marshall

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Middle District of Florida; United States Court of Appeals for the Eleventh Circuit

Case Number: 

6:07-CV-1740-ORL-22KRS (district court); 08-12328-FF (appeals court)

Legal Counsel: 

Matthew T. Farr (district court); Marc J. Randazza - Randazza Legal Group (appeal)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

On November 1, 2007, Internet Solutions, a company that runs a number of employment recruiting and Internet advertising businesses, including VeriResume, sued blogger Tabatha Marshall in federal court in Florida.

Marshall runs a blog and website at www.tabathamarshall.com, on which she writes about suspicious online job solicitations and so-called "phishing" practices. Part of her site consists of the "PhishBucket," a "directory of companies/individuals suspected of targeting job seekers with deceptive offers." Included in the PhishBucket is an entry for "VeriResume (Internet Solutions)," which bears the statement "Pending Investigation Phisher" at the top-right of the page. The entry also contains physical and web addresses for the company, links to posts about it (internal and external), and names of affiliated companies. The PhishBucket also includes entries for other companies operated by Internet Solutions, including Ask America, Scout 2007, Too Spoiled, and USA Voice.

Marshall's site also contains articles relating to her research and views about certain companies and their online job solicitations. Among these is a post entitled "Something's VeriRotten with VeriResume." In this post, Marshall excerpts a sample email from VeriResume soliciting job applications, criticizes the company's position on resume fraud, and links to other sites (like the Better Business Bureau) with information about VeriResume and Internet Solutions. She invites readers to "[c]heck out the research and YOU decide if you want to give them your info."

Several users submitted comments to the post that were critical of VeriResume. One user, who claimed to be a company employee, alleged that the company engages in a "bait-and-switch" routine after applicants submit their information, according to documents attached to the complaint. In an update to her original post, Marshall summarized these user's comments and expounded on the situation.

Starting on October 30, 2007, a representative of VeriResume (or Internet Solutions -- the record is not clear on this point) contacted Marshall via email, claiming that information about VeriResume and other companies posted on Marshall's website was incorrect and asking her to remove it. According to Marshall, the company representative also contacted her landlord, claiming that Marshall was operating a business in her house, a claim that Marshall disputes. On October 31, 2007, one day before filing suit, counsel representing VeriResume and ten other Internet Solutions-affiliated companies sent a cease-and-desist letter to Marshall via email. (For more information on the emails and letter, please see the CMLP database entry, VeriResume v. Marshall (Email)).

Internet Solutions's complaint includes claims for defamation, false light invasion of privacy, and injurious falsehood (trade libel). It alleges that Marshall has "author[ed], post[ed], and publish[ed]" statements claiming that Internet Solutions engages in "phishing," "scams," and other criminal and fraudulent conduct. It requests compensatory and punitive damages, and an injunction requiring Marshall to remove the allegedly defamatory posts and prohibiting her from making future defamatory statements about the company.

Marshall was served with the complaint on November 3, and she has 20 days to respond. Marshall maintains that she merely posts her opinions, publicly available information, and third-party comments and asks her readers to draw their own conclusions. She is seeking legal assistance in this matter.

Update:

4/8/2008 - The court dismissed the complaint, holding that it lacked personal jurisdiction over Marshall.

4/24/08 - Internet Solutions indicated to Marshall that it intends to file an appeal and commence another lawsuit in Washington state.

04/29/08 - Internet Solutions filed a notice that it has appealed the dismissal to the 11th Circuit.

06/06/2008 - Internet Solutions filed its appellate brief with the 11th Circuit.

07/16/2008 - Marshall filed her appellate brief with the 11th Circuit.

02/10/2009 - The 11th Circuit certified a question to the Florida Supreme Court: "Does posting allegedly defamatory stories and comments about a company with its principal place of business in Florida on a non-commercial website owned and operated by a nonresident with no other connections to Florida constitute a commission of a tortious act within Florida for purposes of Fla. Stat. section 48.193(1)(b)?"

03/03/2010 - Florida Supreme Court heard oral argument on the certified question.

06/17/2010 - Florida Supreme Court issued its decision on the certified question:

We answer the rephrased certified question in the affirmative. We conclude that posting defamatory material on a website alone does not constitute the commission of a tortious act within Florida for purposes of section 48.193(1)(b), Florida Statutes. Rather, the material posted on the website about a Florida resident must not only be accessible in Florida, but also be accessed in Florida in order to constitute the commission of the tortious act of defamation within Florida under section 48.193(1)(b). 

9/30/2010 - District Court dismissed case based on lack of personal jurisdiction.

Content Type: 

CMLP Notes: 

User submitted through threat form

Status checked on 6/5/2008, no case in Washington yet (AAB)

Updated 1/22/09 - VAF

Jurisdiction: 

Subject Area: 

Jury Awards $10.9 Million Against "God Hates Fags" Church

On Wednesday, a federal jury in Maryland handed down a $10.9 million verdict against the Westboro Baptist Church, a fundamentalist Christian church in Kansas that publishes a website at www.godhatesfags.com, on which it disseminates its rabidly anti-homosexual views. Among other things, the church advocates the view that God kills U.S. soldiers in Iraq and Afghanistan as punishment for America's tolerance of homosexuality and for the presence of gays in the U.S. military.

Jurisdiction: 

Subject Area: 

Content Type: 

Citizen Media Law Podcast #2: Legal Threats Database; Orthomom Defamation Action; Iranian Blogger Sued in Canada

This week, David Ardia previews our legal threats database, Colin Rhinesmith talks about a recent decision on First Amendment protections for anonymous bloggers, and Sam Bayard spotlights a defamation suit involving an Iranian blogger in Canada.

Download the MP3 (time: 9:30)

Music used in this podcast was sampled and remixed from a track titled "Jazz House" by the Wicked Allstars, available on Magnatune.

To subscribe to the Citizen Media Law Podcast, visit our Subscriptions page or go directly to the podcast feed.

 

Jurisdiction: 

Subject Area: 

Khalaji v. Derakhshan (Letter)

Date: 

07/27/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Hossein Derakhshan; Hosting Matters, Inc., and GoDaddy.com, Inc.

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

Blogger Hossein Derakhshan operates two blogs in English and Farsi at www.hoder.com and www.hoder.com/weblog. He wrote a series of blog posts in 2005 criticizing Mohammed Mehdi Khalaji, a fellow at the Washington Instute for Near East Policy.

On July 27, 2007, Khalaji's lawyers sent a letter to Derkhshan, his domain registrar (GoDaddy), and his hosting service (Hosting Matters, Inc). According to the letter, Derakhshan's posts alleged that Khalaji was working for a right wing think tank that openly supported the policy of 'regime change" in Iran and was "giving ideas to the cruelest and dirtiest enemies of Iran and humanity." The letter also took issue with a claim that Khalaji was "the only Iranian who has worked for both Khameni's office and Dick Cheney's, who intends to bomb Khalaji's former office building plus thousands of men, women and children living in the surrounding area." Derakhshan disputes the accuracy of Khalaji's translations of these statements.

As well as demanding that the hosting company and domain registrar take down the defamatory statements, Khalaji sought an apology and $10,000 in settlement. After a lengthy back-and-forth between Derakhshan and Hosting Matters about what material Derakhshan would take down from his blogs, Hosting Matters terminated Derakhshan's accounts in August 2007. Days later, Derakhshan's blogs were back online with a different hosting service, 1&1 Internet, apparently with the disputed posts still in place.

Khalaji filed a lawsuit against Derakhshan in the Ontario Superior Court of Justice in October 2007. (For more information, please see the CMLP's database entry, Khalaji v. Derakhshan.)

Jurisdiction: 

Subject Area: 

Content Type: 

Khalaji v. Derakhshan

Threat Type: 

Lawsuit

Date: 

10/19/2007

Party Receiving Legal Threat: 

Hossein Derakhshan

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

International

Court Name: 

Ontario Superior Court of Justice

Case Number: 

07 CV 342132 PD

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

In October 2007, Mohammed Mehdi Khalaji, a fellow of the Washington Institute for Near East Policy, filed a defamation lawsuit in the Ontario Superior Court of Justice against prominent Iranian-born, Canadian-based blogger Hossein Derakhshan. Khalaji alleges that, in a number of posts beginning in October 2005, Derakhshan made defamatory comments about him in Persian.

Specifically, Khalaji takes issue with Derakhshan's claims that he (Khalaji) was working for a right-wing think tank that openly supports the policy of "regime change" in Iran, that he was "giving ideas to the cruelest and dirtiest enemies of Iran and humanity," and that he was "the only Iranian who has worked for both Khameni's office and Dick Cheney's, who intends to bomb Khalaji's former office building plus thousands of men, women and children living in the surrounding area." Derakhshan disputes the accuracy of Khalaji's translations of these statements.

In his lawsuit, which was filed on October 19, 2007, Khalaji seeks $2 million in damages based on these and other allegedly defamatory statements, which he claims are malicious and designed to incite violence against him and his family.

Prior to the lawsuit, on July 27, 2007, Khalaji's lawyers sent a letter to Derkhshan, his domain registrar (GoDaddy), and his hosting service (Hosting Matters, Inc), demanding that defamtory posts about him be taken down. Hosting Matters ultimately terminated Derakhshan's accounts in August 2007. Days later, Derakhshan's blogs were back online with a different hosting service, 1&1 Internet, apparently with the disputed posts still in place. (For more on the letter threat, please see the CMLP's database entry, Khalaji v. Derakhshan (Letter).)

Content Type: 

Subject Area: 

CMLP Notes: 

Needs updating

Status checked on 6/5/2008, couldn't find anything new.  Derakhshan does mention in a Feb. 2008 post that he has a pro bono lawyer, but the details seem to be in Persian. (AAB) 

AVM 6/11/09 - Derakshan was arrested in Iran on 11/1/2008 and has been detained without charge. I do not know how the Canadian court would react to this, I imagine the case is on hold. 

Jurisdiction: 

Video Professor v. Justin Leonard

Date: 

07/11/2007

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Justin Leonard; Leonard Fitness, Inc.

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Nevada

Case Number: 

07-cv-1726-WYD-CBS

Legal Counsel: 

Paul Alan Levy

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

Justin Leonard runs the websites infomercialratings.com and infomercialscams.com. These websites give consumers the opportunity to voice their criticisms and defenses of various products and services. Pages on these websites are devoted to criticisms and defenses of Video Professor, Inc., a Colorado company that develops and sells video tutorials on a variety of computer-related topics. Apparently, a number of anonymous posters made critical statements about Video Professor's products on these forum pages.

On July 11, 2007, Video Professor's president sent a letter to Justin Leonard, requesting that Leonard provide the company with contact information for each person who had posted comments to his websites relating to Video Professor. Leonard did not respond to this request.

In August 2007, Video Professor filed a John Doe lawsuit against 100 anonymous defendants (and some anonymous corporations and LLCs too!) in federal court in Colorado. The complaint includes claims for violations of the Lanham Act, violations of a Colorado consumer protection statute, tortious interference with business relations, and common law product disparagement/defamation. The complaint states that the anonymous defendants made false and defamatory statements about Video Professor's products, but does not identify any specific statements.

Video Professor moved ex parte for an order authorizing it to conduct discovery, in the form of third-party subpoenas requiring the recipients to produce documents identifying the anonymous posters. The court granted the motion.

On September 6, 2007, Justin Leonard's company, Leonard Fitness, Inc., received a subpoena, requesting that it produce identifying information for the author of every post on Leonard's websites relating to Video Professor. Along with the subpoena, Video Professor provided a check for $40.81 to compensate Leonard for his expenses in complying with the subpoena.

The Public Citizen Litigation Group took up the matter on behalf of Leonard and sent a letter to Video Professor's counsel objecting to the subpoena and laying out the reasons why, in its view, the subpoena was invalid.

Specifically, the letter argued that the subpoena encroached upon the rights of the anonymous defendants to engage in anonymous speech on the Internet without meeting the legal requirements necessary to justify disclosure of their identities. It also argued that the subpoena was unduly burdensome because it called for information relating to all postings about Video Professor on Leonard's sites, rather than identifying which postings were allegedly defamatory or otherwise unlawful. Finally, the letter stressed that the check provided with the subpoena was not sufficient to compensate Leonard for the work he would have to do to comply with the subpoena.

Communications ensued between Public Citizen and counsel for Video Professor. Video Professor narrowed the list of anonymous posters to 43. It also endeavored to provide Public Citizen with evidence supporting its allegations for each of the postings.

On or around October 18, 2007, Public Citizen sent a notice to each of the 43 posters identified by Video Professor. The letter informed the posters of the pendency of the lawsuit and the request for identifying information about them. It encouraged them to hire a lawyer and explained that Leonard would not produce any documents before October 31, 2007, in order to to give them the opportunity to file a motion to quash the subpoena in federal court. It also indicated that Public Citizen had asked Video Professor for evidence to support its claims, and that Public Citizen (on behalf of Leonard) would move to quash the subpoena should it determine that Video Professor had not done so.

On October 19, 2007, Public Citizen sent Video Professor a letter, explaining that it had sent the notice. The letter also questioned the legal adequacy of the Lanham Act claims and the adequacy of Video Professor's factual showing on the defamation claims. It requested more documents to establish, among other things, the falsity of the statements at issue.

We are not aware of the filing of any motion to quash yet.

Content Type: 

CMLP Notes: 

to-do: monitor status

Jurisdiction: 

Subject Area: 

Summary Judgment Granted in BidZirk v. Smith

I blogged about Orthomom's victory on Friday. Here's another big win for a blogger recently. Last Monday, the United States District Court for the District of South Carolina granted summary judgment to Philip Smith in the lawsuit brought against him by BidZirk, LLC, Daniel Schmidt, and Jill Patterson.

Jurisdiction: 

Subject Area: 

Content Type: 

Warman v. Fournier

Threat Type: 

Correspondence

Date: 

09/10/2007

Party Receiving Legal Threat: 

Constance Wilkins-Fournier; Mark Fournier

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Forum
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

Richard Warman is a Canadian human rights lawyer based in Ottawa. Formerly with the Canadian Human Rights Commission, Warman is best known for initiating human rights complaints against members of white supremacist and neo-Nazi movements for engaging in hate speech on the Internet.

In September and October 2007, Warman sent two letters to Mark Fournier and Connie Wilkins-Fournier, proprietors of the right-wing Canadian forum/website, Freedominion.ca. The letters accused Fournier and Wilkins-Fournier of libel, stated Warman's "intention to commence an action for libel against [them]," and requested a complete retraction. The letters claimed that posts written by the Fourniers and forum participants were libelous in that they accused Warman of engaging in censorship, stifling free speech, and being a "professional complainer," among other things.

A number of websites and bloggers have proclaimed their support for the Fourniers and their condemnation of what they see as Warman's attempts at censorship. Among them are neo-Nazis that Warman has targeted in the past. There is no evidence that the Fourneirs condone the positions espoused by these neo-Nazi supporters, however. In fact, a significant portion of Freedominion.ca's user base appears to be supporters of Israel and Jewish causes.

On or around November 23, 2007, Warman filed a lawsuit in the Superior Court of Justice in Ottawa.

Subject Area: 

CMLP Notes: 

to-do: need to create entry for lawsuit

Content Type: 

Jurisdiction: 

New York Court Dismisses Orthomom Defamation Action

On Tuesday, October 23, Justice Marcy Friedman of the New York Supreme Court dismissed a lawsuit seeking discovery from Google (dba Blogger) regarding the identities of the anonymous operator of the blog "Orthomom" and an anonymous commenter to the blog. The court's opinion is potentially important because it addresses the difficult question of what standard a court should apply when deciding whether to unmask an anonymous defendant in a defamation action.

Jurisdiction: 

Subject Area: 

Content Type: 

Video Professor v. Does

Date: 

08/16/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John and Jane Does 1-100; John Doe Corporations 1-10; Other John Doe Entities 1-10

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Colorado

Case Number: 

07-cv-1726

Legal Counsel: 

Paul Alan Levy (for third party, Justin Leonard)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Justin Leonard runs the websites infomercialratings.com and infomercialscams.com. These websites give users of infomerical products the opportunity to voice their criticisms and defenses of these products and associated sales tactics. Pages on these websites are devoted to criticisms and defenses of Video Professor, Inc., a Colorado company that develops and sells video tutorials on a variety of computer-related topics. Apparently, a number of anonymous posters made critical statements about Video Professor's products on these forum pages.

In August 2007, Video Professor filed a John Doe lawsuit against 100 anonymous defendants (and some anonymous corporations and LLCs too!) in federal court in Colorado. The complaint includes claims for violations of the Lanham Act, violations of a Colorado consumer protection statute, tortious interference with business relations, and common law product disparagement/defamation. The complaint states that the anonymous defendants made false and defamatory statements about Video Professor's products, but does not identify any specific statements.

Video Professor moved ex parte for an order authorizing it to conduct discovery, in the form of third-party subpoenas requiring the recipients to produce documents identifying the anonymous posters. The court granted the motion.

On September 6, 2007, Justin Leonard's company, Leonard Fitness, Inc., received a subpoena, requesting that it produce identifying information for the author of every post on Leonard's websites relating to Video Professor. Along with the subpoena, Video Professor provided a check for $40.81 to compensate Leonard for his expenses in complying with the subpoena.

The Public Citizen Litigation Group took up the matter on behalf of Leonard and sent a letter to Video Professor's counsel objecting to the subpoena and laying out the reasons why, in its view, the subpoena was invalid.

Specifically, the letter argued that the subpoena encroached upon the rights of the anonymous defendants to engage in anonymous speech on the Internet without meeting the legal requirements necessary to justify disclosure of their identities. It also argued that the subpoena was unduly burdensome because it called for information relating to all postings about Video Professor on Leonard's sites, rather than identifying which postings were allegedly defamatory or otherwise unlawful. Finally, the letter stressed that the check provided with the subpoena was not sufficient to compensate Leonard for the work he would have to do to comply with the subpoena.

Communications ensued between Public Citizen and counsel for Video Professor. Video Professor narrowed the list of anonymous posters to 43. It also endeavored to provide Public Citizen with evidence supporting its allegations for each of the postings.

On or around October 18, 2007, Public Citizen sent a notice to each of the 43 posters identified by Video Professor. The letter informed the posters of the pendency of the lawsuit and the request for identifying information about them. It encouraged them to hire a lawyer and explained that Leonard would not produce any documents before October 31, 2007, in order to to give them the opportunity to file a motion to quash the subpoena in federal court. It also indicated that Public Citizen had asked Video Professor for evidence to support its claims, and that Public Citizen (on behalf of Leonard) would move to quash the subpoena should it determine that Video Professor had not done so.

On October 19, 2007, Public Citizen sent Video Professor a letter, explaining that it had sent the notice. The letter also questioned the legal adequacy of the Lanham Act claims and the adequacy of Video Professor's factual showing on the defamation claims. It requested more documents to establish, among other things, the falsity of the statements at issue.

Update:

12/26/2007 - Video Professor filed a notice of voluntary dismissal, ending the case.

07/10/2009 - Consumer Law and Policy Blog reports that the websites infomercialratings.com and infomercialscams.com have been taken down.

Content Type: 

CMLP Notes: 

 

Jurisdiction: 

Subject Area: 

Loan Center of California v. Krowne (Email)

Threat Type: 

Correspondence

Date: 

04/18/2007

Party Receiving Legal Threat: 

Aaron Krowne

Type of Party: 

Organization

Type of Party: 

Individual

Publication Medium: 

Blog

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

Krowne operates The Mortgage Lender Implode-O-Meter (ml-implode.com, mortgageimplode.com), a Web site that posts information about mortgage lending companies that have gone out of business or are expected to go out of business. On April 18, 2007, Krowne posted an e-mail from an anonymous source claiming to be a recently-laid-off employee of mortgage lender Loan Center of California (“LCC”). The e-mail stated that LCC was shutting down and that only a “skeleton crew” of employees remained to “clean up the mess.” It also accused LCC of fraud and various other improper business activities.

According to Krowne's case filings, LCC attorney Michael Huber contacted him within hours of the e-mail's posting. Krowne says he was threatened with a lawsuit, and thus chose to remove the e-mail and all mention of LCC from his site. LCC filed suit nonetheless, bringing claims of defamation, unfair business practices, and interference with contract. (Please see the CMLP's Database entry for the related Loan Center v. Krowne lawsuit.)

Content Type: 

Subject Area: 

CMLP Notes: 

Unfortunately, there isn't any information available on the threat emails other than a brief mention in Krowne's case filings.

Jurisdiction: 

Cha v. Flamm

Threat Type: 

Lawsuit

Date: 

08/31/2007

Party Receiving Legal Threat: 

Bruce Flamm

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of California, County of Los Angeles

Legal Counsel: 

Brian Birnie

Publication Medium: 

Print
Website

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

In 2001, Kwang Yul Cha, a Korean fertility researcher and fertility clinic operator, co-wrote a paper entitled "Does prayer influence the success of in vitro fertilization-embryo transfer? Report of a masked, randomized trial." The controversial paper, which appeared in the Journal of Reproductive Medicine, reported a higher success rate for in vitro fertilization in women who were prayed for compared to those who were not.

In March 2007, Bruce Flamm, a clinical professor of obstetrics and gynecology at the University of California at Irvine and an enduring critic of Cha's prayer study, published an article entitled "Prayer Study Author Charged With Plagiarism" in Ob. Gyn. News, a print medical news journal that is also available online. The one-page article included the following break-out text: "This may be the first time in history that all three authors of a randomized, controlled study have been found guilty of fraud, deception, and/or plagiarism." (Emphasis added.)

The allegations of fraud and deception related to Cha's co-authors, Rogerio Lobo and Daniel Wirth. The allegation of plagiarism related to Cha's co-authorship of another article, published in Fertility and Sterility in 2005. The LA Times reported in February 2007 that Alan DeCherney, editor-in-chief of Fertility and Sterility, had identified this second article as plagiarized (after it was published). DeCherney later retracted this comment when Cha threatened to sue him and the LA Times.

Cha filed a lawsuit against Flamm for defamation in California state court on August 31, 2007. Cha alleges that the implication of "found guilty" in the sentence quoted above is that he has been convicted of plagiarism by a court or administrative body, which he has not.

According to Flamm's lawyer, the meaning of the sentence, when read in the context of the article as a whole, is not that Cha has been convicted of plagiarism by a jury, but has been found by his scientific peers to have been guilty of plagiarism, an assertion which is supported by DeCherney's earlier statements. Flamm claims not to have known that DeCherney in fact retracted his statement after also receiving legal threats from Cha.

The court granted Flamm's motion to strike the complaint under California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16) on November 20, 2007. Cha's attorneys filed a motion to vacate the decision based on new evidence and other arguments, and the court granted that motion on January 24, 2008, reversing the dismissal.

On April 21, 2008, the Superior Court again dismissed the case.

Update:

10/25/2009 - the California Court of Appeals affirmed the dismissal.

02/2010 - The Callifornia Supreme Court declined to hear the appeal. 

Content Type: 

Jurisdiction: 

Subject Area: 

Snyder v. Phelps

Date: 

06/05/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Fred W. Phelps, Sr.; Westboro Baptist Church, Inc.; Rebekah Phelps-Davis; Shirley Phelps-Roper; John Does; Jane Does

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Maryland, United States Court of Appeals for the Fourth Circuit

Case Number: 

1:06-cv-1389-RDB (trial), 08-1026 (appeals)

Legal Counsel: 

Jonathan L. Katz

Publication Medium: 

Verbal
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Dismissed (total)
Verdict (plaintiff)

Description: 

The Westboro Baptist Church is a fundamentalist Christian church that contends that God kills soldiers in Iraq and Afghanistan as punishment for America'stolerance of homosexuality and for the presence of gays in the U.S. military. The church operates a number of websites, including www.godhatesfags.com, on which it disseminates its rabidly anti-homosexual views. The church has gained notoriety for staging protests at the funerals of U.S. soldiers in order to draw attention to its message.

Albert Snyder's son, Lance Corporal Matthew Snyder, was a U.S. Marinewho was killed on March 3, 2006 during active service in Iraq. His bodywas returned to the United States, and his family held a funeral forhim on March 10, 2006 in Westminster, Maryland.

Westboro Baptist Church pastor and founder Fred Phelps and members of his congregation picketed Matthew's funeral, holding signs expressing anti-gay, anti-American, and anti-Catholic slogans, including "God hates you" and "You're going to hell."

Westboro Baptist Church also posted an essay on its website entitled "The Burden of Marine Lance Cpl. Matthew A. Snyder." In the essay, statements indicated that Albert and his wife “raised [Matthew] for the devil,” “RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery,” “taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity,” and “taught Matthew to be an idolator.”

On June 5, 2006, Snyder filed a lawsuit in federal court in Maryland against Westboro Baptist, Fred Phelps, and anonymous members of the church congregation. The complaint included claims for defamation, two counts of invasion of privacy (intrusion on seclusion and publicity given to private life), and intentional infliction of emotional distress.

On September 18, 2006, the defendants filed a motion to dismiss the complaint on jurisdictional and substantive grounds. The Court denied the motion on October 30, 2006.

Snyder's amended complaint, filed February 23, 2007, named Phelps's two daughters, Rebekah Phelps-Davis and Shirley Phelps-Roper, as additional defendants. Two months later, Phelps-Davis and Phelps-Roper filed a motion to dismiss and for summary judgment on grounds similar to their father's September 2006 motion. The Court denied this motion in June 2007.

Although the record is not entirely clear, it appears that the defendants renewed their motions for summary judgment, and, on October 15, 2007, the Court granted summary judgment for the defendants on the defamation claim and the invasion of privacy claim based on publication of private facts. The court announced its decision in open court, commenting that “These comments — as extreme as they may be — they are taken in termsof religious expression. This is not the type of language that one is going to assume is meant as a statement of fact.” The decision was memorialized in an October 16, 2007 order.

The jury trail comenced on October 22, 2007 to hear the remaining counts of invasion of privacy (intrusion upon seclusion) and intentional infliction of emotional distress. On October 31, 2007 the jury handed down a $10.9 million verdict against the defendants. This figure is made up of $2.9 million in compensatory damages, $6 million in punitive damages for invasion of privacy, and $2 million in punitive damages for causing emotional distress. After the verdict, Fred Phelps indicated his intent to appeal to the Fourth Circuit Court of Appeals.

The defendants' practice of protesting at the funerals of fallen soldiers is infamous, and Congress passed a federal statute on May 29, 2006 that prohibits protests of the sort involved in this case. The Kansas legislature approved a similar prohibition in April 2007.

Update:

2/4/2008 - Judge Bennett granted in part Defendants' motion for remittitur and cut the jury award down to $5 million, applying both federal constitutional and state common law standards. The courtleft the jury's compensatory damage award of$2.9 million intact but reduced the total punitive damages to $2.1million.

2/11/2008 - Phelps filed statement of intent to appeal.

9/24/2009 - The Fourth Circuit issued an opinion reversing the judgment of the district court and vacating the jury award.  The appellate court found the Phelps' speech (both website and picketing) protected by the First Amendment.

3/02/2011 - The U.S. Supreme Court affirmed the Fourth Circuit Court of Appeals.  Chief Justice Roberts, writing for the majority, held that a suit for intentional infliction of emotional distress must fail  because Phelps' speech was on a matter of public concern.  He held that the context of a funeral did not transform the context of the speech from public to private, because the Westboro Baptist Church picketed on public land.

The Court also addressed liability under the captive audience theory. If Snyder were seen as a captive audience at his son's funeral, he could possibly recover from the harmful effects of the speech because he would be an unwilling listener. However, the Court stressed that the picketers didn't interrupt the funeral, shout profanities, or behave "unruly." Snyder couldn't see any of the signs during the funeral and in fact didn't know what they said until after the funeral was over.

The Court left open whether time, place or manner restrictions restricting picketing at funerals would violate the First Amendment.

Jurisdiction: 

Subject Area: 

Content Type: 

OMDA Oil & Gas, Inc. v. Porcari

Date: 

03/01/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Arthur J. Porcari

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

District Court of Dallas County, Texas; Court of Appeals, Fifth District of Texas, at Dallas

Case Number: 

No. 07-01850-M (trial level); No. 05-07-00390-CV (appellate level)

Legal Counsel: 

David F. Morris

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Denied
Injunction Issued

Description: 

OMDA Oil & Gas sued Arthur J. Porcari after he posted comments on private investor boards including the Yahoo! OMDA Investor Chat Board.

In June 2004, Porcari, a large stockholder of publicly traded shares in OMDA, told the Chairman of OMDA Adam Barnett that he believed that OMDA shares were undervalued and offered to assist the firm in expanding its operations. Barnett accepted the offer, and Porcari took over the firm's communications operations (he did not, however, become an officer of the company). In March 2006, Barnett and Porcari had a falling out over Barnett's management of the company, and Barnett put an end to Porcari's work for OMDA.

Before and after his involvement with Barnett, Porcari posted comments on the Yahoo! chat board criticizing OMDA's management and replying to Barnett's posts.

On March 1, 2007, OMDA sued Porcari in Texas state court, alleging that his Yahoo! posts were defamatory, constituted business disparagement, and breached Porcari's fiduciary duties to OMDA by disclosing confidential information obtained during his involvement with the firm.

The trial court granted OMDA a temporary injunction restraining Porcari from publishing defamatory, disparaging or negative statements about OMDA or any of its officers, directors, members, shareholders or affiliates, and from disclosing information he obtained between June 1, 2004 and March 31, 2006.

In June 2007, Porcari appealed the trial court's grant of the injunction. In October, a Texas appellate court reversed the trial court's decision, finding that the injunction constituted an unconsistutional prior restraint on Porcari's speech. The court ruled that claims of defamation and trade libel are not themselves sufficient to justify prohibiting a litigant from making negative statements about a company because damages can redress the harm. The court further held that the order requiring Porcari to refrain from disclosing any information obtained in the period from June 2004 to March 2006 was overbroad in restricting Porcari from communicating matters of public knowledge, rather than restricting the disclosure of confidential information only.

Update:

1/7/2008 - OMDA filed a petition for review to the Texas Supreme Court.

06/06/2008 - OMDA's petition to the Texas Supreme Court was dismissed for want of jurisdiction. (scroll down or Ctrl+F "porcari")

Content Type: 

CMLP Notes: 

In a shareholder bulletin, the Chairman mentions that a letter was sent to Porcari prior to the litigation. Jill has not been able to find out anything about what was in the letter.

to-do: finish entry for letter threat

Status updated 6/6/2008, OMDA trying to appeal the Appeals Court decision. (AAB)

06/18/2009 - updated to include Texas Supreme Court's denial of OMDA's appeal (LB)

Jurisdiction: 

Subject Area: 

Rapacchiano v. Visceglia

Threat Type: 

Lawsuit

Date: 

01/08/2007

Party Receiving Legal Threat: 

Anthony Visceglia; Felice A. Visceglia

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court, Camden County, New Jersey

Case Number: 

L-000-238-07

Legal Counsel: 

Pro se

Publication Medium: 

Forum
Social Network

Status: 

Concluded

Disposition: 

Default Judgment
Settled (total)

Description: 

Patrick Rapacchiano sued Anthony and Felice Visceglia for defamation for publishing critical statements about him on Mr. Visceglia's MySpace page and in an online forum. Rapacchiano sued in New Jersey state court, and the Visceglias failed to answer. The court appears to have entered a default judgment against them, but the amount of the judgment is not clear from the record.

After the plaintiff obtained a garnishment order for the defendant's wages, the parties settled.

Content Type: 

Jurisdiction: 

Subject Area: 

DirectBuy v. Leonard

Threat Type: 

Correspondence

Date: 

09/21/2007

Party Receiving Legal Threat: 

Justin Leonard

Type of Party: 

Organization

Type of Party: 

Individual

Publication Medium: 

Forum

Relevant Documents: 

Description: 

Justin Leonard of Scottsdale, Arizona publishes three websites: infomercialblog.com, infomercialratings.com, and infomercialscams.com. These websites give consumers the opportunity to voice their criticisms and defenses of various products and services.

On September 21, 2007, DirectBuy, a company that apparently helps customers to buy furniture directly from manufacturers, sent a cease-and-desist letter to Leonard through its lawyers, Dozier Internet Law, P.C. The letter claims that Leonard and his users had defamed the company by referring to its direct-buy plan as a "scam" and a "nightmare." It threatens a lawsuit unless Leonard removes "all defamatory and disparaging statements" about DirectBuy from his websites and compensates the company for its attorneys fees and costs. Most interestingly, the letter ends with an assertion of copyright on behalf of the law firm:

Please be aware that this letter is copyrighted by our law firm, and you are not authorized to republish this is any manner. Use of this letter in a posting, in full or in part, will subject you to further legal causes of action.

Public Citizen Litigation Group got involved on behalf of Leonard. Lawyers for the group not only posted the Dozier firm's letter, but sent a powerful (yet cheeky) response entitled "How not to write a cease and desist letter -- an open letter in response to your September 21 threat." The response not only disputes DirectBuy's defamation claim and its expansive reading of the important recent CDA 230 case, Fair Housing Council v. Roommate.com, 489 F.3d 921 (9th Cir. 2007), but also takes the Dozier firm to task for its copyright warning, calling it "the worst thing about your letter". The Public Citizen lawyer continued:

Such a posting [of the letter] would be fair use. Moreover, inquiry by my colleague Greg Beck produced the interesting information that the copyright in the letter has not been registered. Sadly, according to what you told him, you have been successful in this intimidation because none of your cease and desist letters has ever been posted.

There is always a first time. We are posting the letter on the Public Citizen web site (the letter can be found at http://www.citizen.org/documents/directbuycd.pdf) so the public can assess our differences by comparing your contentions with our responses. By this letter, we are inviting you to test the validity of your theory that a writer of a cease and desist letter can avoid public scrutiny by threatening to file a copyright law suit if his letter is disclosed publicly on the Internet.

There appears to have been no developments after Public Citizen's response letter.

Content Type: 

Jurisdiction: 

Subject Area: 

CMLP Notes: 

Status checked on 6/3/2008 (AAB)

Status checked 6/17/09; no new info (CMF)

Update 7/10/09-AVM Website is now down. Leonard sold the site and its new owners have been sued by video professor. I put in a link to the story but will create a new entry for the new lawsuit. 

Unknown Homeowner v. Madison

Threat Type: 

Correspondence

Date: 

09/01/2007

Party Receiving Legal Threat: 

Mike Madison; Joe Polk; Third Co-Blogger

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Blog

Status: 

Concluded

Description: 

Mike Madison and two co-bloggers published Blog-Lebo, which covers matters of local interest in Mt. Lebanon, Pennsylvania.

In September 2007, Madison posted about a neighborhood dispute that arose when a local homeowner re-landscaped his backyard and blocked (or threatened to block) a stone path that was popularly understood to be protected by a recorded easement. Many readers commented on the post. One commenter identified the homeowner by name and another (apparently one of Madison's co-bloggers) commented that the owner, who is a lawyer, should have known better than to buy real estate without checking the record for easements.

Days later, Madison and his co-bloggers received a letter from the lawyer/homeowner demanding that they remove the post or face a lawsuit for defamation. Madison, a lawyer and law professor experienced in Internet law, was willing to stand up against what he saw as legally and factually baseless claims. His co-bloggers had a different reaction altogether -- one wanted to take the post down immediately, and the other withdrew from the blog. (It looks like the second co-blogger also withdrew at some point later.) In a subsequent blog post on his madisonian.net blog, Madison sums up the dilemma he faced as follows:

Blogging lesson number one: All of the noblest rhetoric from Chilling Effects and the EFF and law faculty colleagues is terrific, but it doesn’t mean a lot when your co-blogger turns to jelly. Should lawyers blog with non-lawyers? Maybe not; maybe lawyers simply see the world in a different light. My co-bloggers and I didn’t (and don’t) have a formal co-blogging agreement or liability-shielding arrangement, but even if we had, it’s clear that the dynamic would have played out essentially as it did. We had discussed dealing with hypothetical defamation claims, and I had walked through the immunity analysis under Section 230 of the CDA. All seemed well. But when push came to shove, the non-lawyers got extremely nervous. There was no trust. At that moment, our relative aversion to risk was quite different, and I felt that I couldn’t leave the post up if it meant that my co-blogger would remain frightened.

So down the post came.

Madison not only took down the "offending" post, but ended up suspending Blog-Lebo entirely (see his explanation for the suspension on Pittsblog). The surprise happy ending to the story is that Blog-Lebo's readers clamored for the blog to return, one of Madison's co-bloggers (Joe Polk) rethought the situation, and the blog is back up.

Jurisdiction: 

Subject Area: 

Content Type: 

Co-Blogging and Cease-and-Desist Letters

Mike Madison published a thoughtful and thought-provoking post the other day on his madisonian.net blog about the effect that a cease-and-desist letter can have on a collaborative blogging (or "co-blogging") relationship. Madison publishes on a number of blogs, one of which is Blog-Lebo, which covers matters of local interest in Mt.

Subject Area: 

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