Defamation

Democratic National Committee v. FreeRepublic

Threat Type: 

Correspondence

Date: 

05/10/2007

Party Issuing Legal Threat: 

Democratic National Committee

Party Receiving Legal Threat: 

James Robinson, on behalf of FreeRepublic.com

Type of Party: 

Organization

Type of Party: 

Organization

Publication Medium: 

Forum

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

On May 10, 2007, a user on the FreeRepublic forum posted that he had heard on a XM Satellite Radio talk show that DNC Chairman Howard Dean had called Kansas Governor Kathleen Sebelius asking her to politicize the recovery effort from a tornado in Greensburg, Kansas, by dragging her feet on requesting federal aid and then blaming the lack of response on President Bush.

That same day, the DNC, through counsel, sent a cease-and-desist email to the webmaster of FreeRepublic. The email complained that FreeRepublic had not only repeated the defamatory statements of the radio show host, but indicated that the host's source was "extremely reliable and in a position that would give him direct knowledge of these revelations." The email asserted that the statements were "false and defamatory," "libelous and slanderous," and "clearly threaten to interfere with the DNC’s operations and ability to solicit support and raise funds." The email demanded that FreeRepublic remove the defamatory statements and post a prominent retraction.

The FreeRepublic did not remove the statements, and there is no indication that the DNC has taken any further action.

Incidentally, the DNC also sent a cease-and-desist letter to XM Satellite Radio, complaining about the original radio show broadcast. XM posted audio clips of the show on its website, but it does not appear that the DNC sent them a cease-and-desist letter in regard to that posting.

 

Content Type: 

Jurisdiction: 

CMLP Notes: 

David Russcol editing

 

Sam Reviewing

 

Subject Area: 

Flavaworks v. Cannick

Threat Type: 

Correspondence

Date: 

07/18/2007

Party Issuing Legal Threat: 

Flavaworks, Inc.

Party Receiving Legal Threat: 

Cannick, Jasmyne; Tarver, Bernard

Type of Party: 

Organization

Type of Party: 

Individual

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Description: 

The Chicago Department of Public Health released a Winter 2006 report regarding a “cluster” of HIV and other STD outbreaks at a Chicago apartment building. The report noted that the outbreaks were associated with Flavaworks, an Internet pornography company that had used the building as a base for some of its pornographic ventures – including the site, "Cocodorm.com." Flavaworks subsequently was involved with investigations stemming from the report and other legal issues. Alongside print media coverage of the Flavaworks situation, bloggers Cannick and Tarver wrote posts critical of the company. According to the bloggers' sites, both received e-mails from Flavaworks asking for those posts to be removed. They refused.

Flavaworks then filed a complaint with Tarver's Web host, alleging that Tarver's use of a Cocodorm photo in his post infringed the company's copyrights. The Web host removed the photo from the blog without consulting Tarver. Tarver then replaced the photo, prompting the Web host to shut down his blog until he explained the situation. His blog was put back online without the photo, but the blog post remained intact.

In June 2007, a Flavaworks attorney sent letters to Cannick and Tarver alleging that they had defamed the company in their posts. Interestingly, the letter took issue with the bloggers' statements that Flavaworks was trying to shut down their blogs simply because they had criticised the company. It warned the bloggers that they would face legal action if they each did not issue an immediate public retraction and pay $250,000 before July 18. Both bloggers refused.

Flavaworks did not pursue legal action following Cannick's and Tarver's rejection of the terms of the letter. Although Cannick noted in a blog post that she had received notice Flavaworks was suing her, this statement referred to the letter discussed above, rather than a case filing.

Content Type: 

Jurisdiction: 

Subject Area: 

CMLP Notes: 

Might be worth checking Cannick's and Tarver's blogs in case Flavaworks decides to revive the issue later, but it seems to be over. 10/17/2007. {MCS}

Strahl v. Oh-Willeke

Date: 

07/13/2007

Threat Type: 

Correspondence

Party Issuing Legal Threat: 

Joe Strahl; Mr. Trademark Inc.

Party Receiving Legal Threat: 

Andrew Oh-Willeke

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Publication Medium: 

Blog

Status: 

Concluded

Description: 

On his blog "Wash Park Prophet," Andrew Oh-Willeke wrote a post entitled "Mr. Trademark Abuse" about Leo Stoller, an entrepreneur who has litigated a number of trademark infringement claims asserting rights in the word "stealth." (According to the New York Times, Mr. Stoller apparently also has registered trademarks for the words "bootlegger," "hoax," and "chutzpah.")

A few days later, Oh-Willeke received an email from Joe Strahl, Vice President of Mr. Trademark Inc., the purported owner of the registered trademark "Mr. Trademark ®." The email asserted trademark rights in the words "Mr. Trademark" and complained that the blog post about Mr. Stoller wrongly created the impression that Stoller was associated with Mr. Trademark Inc. The email also appeared to raise a libel claim, arguing that the company's "reputation as a trademark search company and agent is being harmed by the defamatory and libelous post." Strahl threatened legal action unless all posts using the words "Mr. Trademark" were taken down.

Oh-Willeke responded by adding a disclaimer to the original post, which says:

Notice: The title of this post "Mr. Trademark Abuse", should in no way be confused with the firm "Mr. Trademark® Inc." which has no relation to Mr. Stoller, according to its representative Joe Strahl VP. Of course, if you had a brain, you would have realized that simply from the context of the post, but I'm putting it here for anyone too thick headed to understand that point on July 16, 2007 in response to a cease and desist e-mail I received today when I opened my work e-mail this morning.

Oh-Willeke also wrote Strahl an email denying that he made any false statements of fact and critiquing Strahl's trademark claim. It is worth reproducing here in full:

I have received your e-mail and have posted a disclaimer in the post in an abundance of caution. Nevertheless, I believe that you[r] cease and desist e-mail is off base. I will not remove the post or change the title as you have requested.

1. I am not trying to sell trademark services in this post.
2. I have made no false statements of fact.
3. I clearly identify the factual basis of my statements.
4. You, like Mr. Stoller, seem to fail to appreciate that a registered trademark is not a monopoly on use of certain words, it is merely a ban on marketing goods or services in a confusing fashion.
5. From context, it is clear that "Mr. Trademark Abuse," the title of my post,is something very different, indeed the opposite of, "Mr. Trademark," which you have registered.
6. Also, from context, it is clear that I am not using the words in a manner intended to have secondary meaning.
7. I seriously doubt that your registered trademark would withstand court scrutiny as it is merely descriptive of the services you provide. Descriptive trademarks are inherently weak. In the same way, it is impossible to get a valid trademark on “Liquor Store” or “Dry Cleaner” for a liquor store or dry cleaner respectively. Your own trademark verge[s] on frivolous itself.

Please refrain from taking further unreasonable action.

This precipitated an email exchange between Oh-Willeke and Strahl, in which Strahl continued to assert his trademark rights and demanded that the posting (or at least the title) be taken down. Oh-Willeke pointed out, among other things, that that the registered mark "Mr. Trademark" did not consist of the words "Mr. Trademark" alone, but rather the words in connection with a drawing of a little man, and that the registration document expressly stated that "no claim is made to the exclusive right to use 'trademark' apart from the mark as shown."

No resolution appears to have been reached between Strahl and Oh-Willeke.

Update:

As of 10/08/07, Oh-Willeke's blog had not included any updates regarding the situation.

Subject Area: 

CMLP Notes: 

Looks like this one stopped at the exchange of letters. No further reference from Wash Park Prophet as of 10/10/07. {MS}

SB: to-do: monitor for developments. perhaps add some legal analysis about how bad Strahl's claim is

Jurisdiction: 

Content Type: 

eAppraiseIT v. Crowley

Threat Type: 

Lawsuit

Date: 

06/19/2007

Party Issuing Legal Threat: 

eAppraiseIT, LLC

Party Receiving Legal Threat: 

Pamela Crowley

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Circuit Court of the Eighteenth Judicial Circuit in and for Brevard County

Case Number: 

05-2007-CA-027976

Legal Counsel: 

Eric A. Lanigan

Publication Medium: 

Forum
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Denied
Withdrawn

Description: 

Crowley runs www.mortgagefraudwatchlist.org, a part-free, part-subscription database of mortgage fraud reports and information. She also is a moderator of AppraisersForum.com, a message board for mortgage appraisers. Crowley wrote posts on both sites criticizing eAppraiseIT, a mortgage appraisal management company. Her posts allegedly accused eAppraiseIT of demanding that appraisers engage in “unethical” activities and reported that she had received information showing that eAppraiseIT tampers with electronic appraisal documents. Her posts also allegedly urged appraisers not to send any documents to the company, suggested that eAppraiseIT pressures individual appraisers to manipulate appraisal values, and indicated that evidence of eAppraiseIT's inappropriate actions had been delivered to law enforcement and regulatory bodies.

EAppraiseIT sued Crowley over these comments in Florida state court, alleging defamation and tortuous interference with business relations. The company filed a motion to enjoin Crowley from discussing eAppraiseIT on her Web sites for the duration of the lawsuit, and the court granted EAppraiseIT an emergency hearing to consider the motion. The court denied the motion at the closing of the hearing, citing Florida appellate case law stating that courts may not enjoin "an actual or threatened defamation." The court earlier (page 10) indicated that the prior restraint doctrine under the First Amendment provided a strong argument against the requested injunction as well.

 

Update:

2/6/2008 - eAppraiseIT voluntarily dismissed the action. Marc Randazza has an excellent post with details.

Content Type: 

CMLP Notes: 

 

Docket available at Brevard court site, though no documents. Better description coming once more documents/news is available. 10/17/07 {MCS}

to-do: create threat entry for letters sent by eAppraiseIt -- see page 6 of the transcript of PI hearing

Jurisdiction: 

Subject Area: 

Ronson v. Lavandeira

Date: 

07/12/2007

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Samantha Ronson

Party Receiving Legal Threat: 

Jill Ishkanian; Mario Lavandeira; Sunset Photo and News, LLC

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

California Superior Court, Los Angeles County

Case Number: 

BC374174

Legal Counsel: 

Bryan J. Freedman (for Lavandeira); Snipper Wainer & Markoff (for Ishkanian)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)
Settled (partial)

Description: 

Samantha Ronson, a prominent DJ and friend of movie star Lindsey Lohan, sued popular celebrity blogger Mario Lavandeira (aka Perez Hilton) and others for libel in California state court in June 2007.

According to Ronson's complaint, the online magazine "Celebrity Babylon" published statements in late May 2007 accusing Ronson of of planting drugs in Lohan's car and "setting up" Lohan for press photographers in exchange for money. On June 1, Lavandeira allegedly republished these statements on his blog, adding that Ronson had been "toxic" for Lohan. Additionally, on June 13, 2007, Lavandeira allegedly published a posting under the headline "Blame Samantha!," which stated: "Was Lindsay Lohan betrayed by her lezbot DJ pal Samantha Ronson? Australia's NW magazine seems to think so. And we wouldn't disagree!"

In addition to Lavandeira, Ronson sued the Sunset Photo and News agency, which operates Celebrity Babylon, and Jill Ishkanian, its editor-in-chief. The complaint asked for $20 million in damages.

On September 4, 2007, Lavandeira filed a motion to strike the complaint pursuant to California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16). On November 1, 2007, the court ruled on the motion to strike, granting it in full. The court held that Lavandeira's website was a "public forum" and that his posts about Ronson concerned a "matter of public interest" because Ronson had injected herself into the public eye by associating with Lohan and because of the role illegal drugs played in the story. The court further held that Ronson had failed to produce sufficient evidence to meet the burden imposed by the anti-SLAPP statute. Specifically, the court ruled that Ronson was "at least" a limited purpose public figure under the circumstances, and that she had failed to bring forward any evidence that Lavandeira had acted with malice or reckless disregard for the truth of the statements. At the end of the hearing, Lavandeira's lawyer indicated that he would be submitting a motion for attorneys fees.

We have another document, entitled "Stipulation for the Entry of an Order Granting Motion to Strike Complaint Brought By Defendant Mario Lavandeira and Striking and Dismissing Complaint as to Lavandeira; [Proposed] Order Thereon." It is dated October 31, 2007, and appears to be a stipulation between the parties, whereby Ronson would agree to the entry of an order by the court granting the motion to strike and dismissing the complaint and Lavandeira would agree to waive his right to recover attorneys fees under section 425.16. Only one signature appears on the document - Ronson's -- and we have not been able to confirm whether this document was ever fully executed and filed with the court. Given the contents of the November 1 hearing transcript, however, it seems unlikely that it was.

Ronson and Ishkanian previously settled for an undisclosed amount in October 2007.

Update: In early December 2007, Lavandeira filed a motion seeking $93,000 in attorneys' fees from Ronson pursuant to the anti-SLAPP statute.

1/23/08 - News reports indicate that the court awarded Lavandeira approximately $85,000 in attorneys fees under the anti-SLAPP statute.

5/5/08 - News reports indicate that Ronson is trying to get her lawsuit reinstated, arguing that her original lawyer did not zealously defend her interests because of a fee dispute. Lavandeira has filed papers in opposition.

6/4/08 - News reports indicate that the court has rejected Ronson's attempt to re-open the case.

12/10/08 -  The Los Angeles Times is reporting that Ronson has sued her former attorney, Martin Garbus, for malpractice over his handling of her case.

Content Type: 

CMLP Notes: 

I think Ronson is trying to reopen the case - need to check

Threat Source: 

MLRC

Jurisdiction: 

Subject Area: 

Essent v. Doe

Threat Type: 

Lawsuit

Date: 

06/19/2006

Party Issuing Legal Threat: 

Essent Healthcare, Inc.

Party Receiving Legal Threat: 

John Doe(s)

Type of Party: 

Large Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Sixty-Second Judical District of Texas, Lamar County; Court of Appeals, Sixth Appellate District of Texas at Texarkana

Case Number: 

No. 76357 (trial court); No. 06-07-00123-CV (appellate)

Legal Counsel: 

James R. Rodgers

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Subpoena Quashed

Description: 

In June 2007, a subsidiary of Essent Healthcare, Inc. filed suit in Texas state court against an anonymous blogger and an undefined number of anonymous posters to his blog. Essent's petition contains claims for defamation, trade disparagement, breach of contract, and breach of the duty of loyalty.

The case revolves around a blog called "The-Paris-site," which focuses on Essent's Paris Regional Medical Center (the "Hospital") in Paris, Texas. The operator of the blog goes by the pseudonyms "Frank Pasquale" (no relation to the law professor) and "fac_p". He posted critical remarks about the Hospital on the blog, including statements that, according to Essent, assert or imply that the Hospital is engaged in Medicare fraud. He also posted statements that allegedly accuse the Hospital of having a high incidences of bacterial infections and of post-surgical complications.

Anonymous users also posted comments on the blog. Some of the comments included information that Essent claims is confidential patient health information. Essent maintains that these anonymous posters (and possibly the blog operator himself) are current or former Hospital employees, and that these disclosures of patient information violate the Health Insurance Portability and Accountability Act ("HIPAA"). Essent's petition contains no claim for violations of HIPAA as such, but asserts that anonymous employee posters breached their employment contracts with the Hospital, and their duties of loyalty to it, by disclosing confidential information in violation of HIPAA.

Essent filed an ex parte request for an order compelling SuddenLink Communications, the anonymous blogger's internet service provider, to disclose his identity. On June 19, 2007, the court issued an order directing SuddenLink to do so, and SuddenLink subsequently sent notice to the blogger pursuant to the Cable Communications Act, which contains an interesting requirement that a cable operator may not disclose "personally identifiable information concerning any subscriber" unless the cable operator first notifies the subscriber. 47 U.S.C. 551(c).

On August 3, 2007, a lawyer representing the anonymous blogger wrote a letter to the court, opposing disclosure of his client's identity. Essent submitted briefs, arguing that the blogger's objection was unfounded. On September 14, 2007, Scott McDowell, the district judge, issued a letter ruling, rejecting the blogger's objection, stating that he would sign an order requiring SuddenLink to disclose the blogger's name and address, and requesting that Essent prepare the order. The September 14 letter ruling stated that the "burden by plaintiff has been met to meet the requirements of the exceptions to the [Cable] Communications Act to grant the request by Plaintiff." On September 24, counsel for the anonymous blogger filed a letter pointing out that no evidentiary support had been provided by Essent to justify disclosure of his client's identity and arguing that, in the absence of such evidence, even the lowest standard of review imposed by court's before unmasking an anonymous poster had not been met.

On September 27, Essent submitted an affidavit from a Hospital representative, indicating that the statements in Essent's petition were true and attaching copies of the blog and various documents regarding the hospital's contract claims against the anonymous employee posters. On October 1, the court signed an order compelling SuddenLink to disclose the name and address of the anonymous blogger. The order stated that the court had considered the September 27 filing and everything else previously submitted to the court.

On October 9, counsel for the anonymous blogger filed a petition for a writ of mandamus asking a Texas appellate court to order the trial court to withdraw its order. On December 12, 2007, the appellate court conditionally granted the writ of mandamus, ordered the trial court to vacate its previous order, and sent the case back to the trial court for further consideration. The court held that the Cable Communications Act gives courts no independent authority for ordering non-party discovery, and that the trial court had entirely failed to consider the Texas rules of civil procedure relating to non-party discovery and therefore had lacked authority to issue its order. Additionally, the appellate court offered the trial court "some guidance" in applying the Texas rules of discovery in light of First Amendment protection for anonymous speech. The court indicated that it would follow Doe v. Cahill in requiring that a plaintiff produce evidence sufficient to survive a summary judgment motion before ordering disclosure of an anonymous defendant's identity. "Summary judgment" is a legal term of art, and applying this standard means that the plaintiff must show that it has sufficient evidence for each of the elements of its claim. The court, like the Delaware Supreme Court in Cahill, loosened the standard somewhat, however, indicating that a plaintiff at this preliminary stage of the litigation need not provide evidence for elements of his/her claim that are nearly impossible to show without knowing the defendant's identity (such as whether the defendant acted with the requisite degree of fault).

Content Type: 

CMLP Notes: 

to-do: monitor status

Status checked on 6/4/2008, no new information.  The-Paris-Site alludes to hearings in early '08, but hasn't followed up with what happened in them.  (AAB) 

Jurisdiction: 

Subject Area: 

Kaplan v. Salahi

Threat Type: 

Lawsuit

Date: 

09/12/2006

Party Issuing Legal Threat: 

Lee Kaplan

Party Receiving Legal Threat: 

Yaman Salahi

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

California Superior Court, County of Alameda

Case Number: 

BS06288332

Verdict or Settlement Amount: 

$7,500.00

Legal Counsel: 

Pro Se (for Small Claims), Adam Gutride (for Appeal)

Publication Medium: 

Blog

Status: 

Concluded

Disposition: 

Verdict (plaintiff)

Description: 

Lee Kaplan, a freelance journalist and columnist for FrontPageMag.com, sued Yaman Salahi, a student blogger at the University of California at Berkeley, in small claims court for libel and interfering with business relations.

Salahi's blog, Lee Kaplan Watch, monitored and commented critically on Kaplan's pro-Israel articles and activities. Kaplan claimed that Salahi made false statements about him, including that Kaplan "represents the very worst of journalistic integrity and honesty, violating ethical norms by impersonating others and writing fabricated biographies of various persons involved in campus activism." Kaplan also claimd that Salahi sent letters and emails to Kaplan's potential employers.

Kaplan won in small claims court, and the judgment was affirmed on appeal. Salahi was ordered to pay Kaplan $7,500 in damages. The court did not release an opinion regarding its decision.

Content Type: 

Jurisdiction: 

Subject Area: 

Barrett v. Rosenthal

Threat Type: 

Lawsuit

Date: 

11/03/2000

Party Issuing Legal Threat: 

Steven J. Barrett; Terry Polevoy; Christopher E. Grell

Party Receiving Legal Threat: 

Ilena Rosenthal; Tim Bolen; Jan Bolen; Hulda Clark

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

California Superior Court, Alameda County

Case Number: 

833021-5

Legal Counsel: 

Mark Goldowitz, Lisa Sitkin, Roger Myers, Katherine Keating

Publication Medium: 

Email
Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Dismissed (total)

Description: 

The plaintiffs, Dr. Stephen J. Barrett and Dr. Timothy Polevoy, operated websites devoted to exposing health frauds. Ilena Rosenthal directed the Humantics Foundation for Women and operated an Internet discussion group. Barrett and Polevoy claimed that Rosenthal and her co-defendants committed libel by distributing defamatory statements in emails and Internet postings to various forums. Specifically, they alleged that Rosenthal republished two Usenet newsgroup messages "accusing Dr. Polevoy of stalking women and urging 'health activists . . . from around the world' to file complaints to government officials, media organizations, and regulatory agencies." They also alleged that Rosenthal posted a message to a newsgroup stating that Quackwatch, the organization associated with Barrett's website, "appears to be a power-hungry, miguided bunch of pseudoscientific socialistic bigots," that it was "an industry funded organization," and that it was being sued by many doctors and health organizations. They claimed also that Rosenthal posted another message to a newsgroup referring to Barrett and Polevoy as "quacks."

Rosenthal moved to strike the plaintiffs' complaint pursuant to California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16). She claimed that her statements were protected speech, and argued that the plaintiffs could not establish a probability of success on the merits of their lawsuit because she was immune from liability under CDA 230 (which insulates a "provider or user of an interactive computer service" from being held liable as the publisher or speaker of "any information provided by another information content provider"). She also argued that her statements were non-actionable statements of opinion.

The district court granted the motion, finding that Rosenthal's statements concerned an issue of public interest within the scope of the anti-SLAPP statute, and that all but one of the alleged defamatory statements were non-actionable statements of opinion. The only remaining statement appeared in an article that Rosenthal received via e-mail from her co-defendant, Tim Bolen. This article accused Dr. Polevoy of stalking a Canadian radio producer. Rosenthal posted a copy of the article on two newsgroups devoted to alternative health issues, not on her own discussion group. The trial court held that Rosenthal's republication of Bolen's article was protected by CDA 230.

The California Court of Appeal reversed the trial court, insofar as its decision applied to the statement about Dr. Polevoy's alleged stalking. It held that CDA 230 did not protect Rosenthal from liability as a "distributor" of the defamatory material under the common law of defamation.

In November 2006, the California Supreme Court reversed the Court of Appeal, holding that CDA 230 prohibits "distributor" liability for Internet publications. It also held that CDA 230 protects individual users of interactive computer services, and that it protects "active" republication as well as "passive" republication of others' statements. On the "distributor" issue, the California Supreme Court followed Zeran v. Amercia Online, 129 F.3d 327 (4th Cir. 1997), which also refused to draw a distinction between a "distributor" and a "publisher' for purposes of CDA 230. Both cases are widely regarded as important decisions standing for the proposition that, in the words of Eric Goldman, "no one is liable for other people's content online -- period (except for claims not covered under the statute -- IP, federal criminal law, ECPA)."

It is unclear from the docket sheets what the status of the lawsuit is with respect to the remaining defendants, but there has been no action in the trial court since 2004.

Update:

Tim Bolen reports that Judge Stephen Dombrink of California Superior Court, Alameda County, dismissed the case against the remaining defendants in March 2009.

Content Type: 

CMLP Notes: 

This case is complicated in terms of parties, subsidiary lawsuits, etc. to-do: someone shoudl clarify what is going on/happened to the defendants other than Rosenthal, and check for related lawsuits (there appears to have been one in the Northern District of California)

Jurisdiction: 

Subject Area: 

Zeran v. America Online

Threat Type: 

Lawsuit

Date: 

04/23/1996

Party Issuing Legal Threat: 

Kenneth Zeran

Party Receiving Legal Threat: 

America Online, Inc.

Type of Party: 

Individual

Type of Party: 

Intermediary

Court Type: 

Federal

Court Name: 

W.D. Oklahoma

Case Number: 

5:96-CV-00598; 1:96CV01564 (EDVA); 97-1523 (4th Cir.)

Legal Counsel: 

Patrick Carome, John Payton, Samir Jain, Randall Boe

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Shortly after the Oklahoma City bombing, an unknown person posted messages on an AOL bulletin board purporting to offer for sale t-shirts and other items which supported or made light of the bombing in Oklahoma City. The messages contained Kenneth Zeran’s first name and phone number.

After Zeran received outraged calls and death threats, he complained to AOL, which removed the postings but did not post a retraction. Similar messages continued to appear on AOL for several weeks despite Zeran’s request that AOL block such messages.

Zeran originally filed negligence and defamation claims in Oklahoma, claiming that AOL was responsible for the postings. AOL moved to have the suit transferred to Virginia, where it was decided.

On March 27, 2007, the district court granted AOL's motion to dismiss. See Zeran v. America Online, Inc., 958 F.Supp. 1124 (E.D. Va. 1997).

On November 12, 1997, the Fourth Circuit Court of Appeals affirmed the decision on appeal. See Zeran v. America Online, Inc., 129 F.3d 327, 328 (4th Cir. 1997). The Court of Appeals based its ruling on Section 230(c)(1) of the Communications Decency Act, which states: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

The Court of Appeals also rejected Zeran's argument that Section 230 should not apply in this case because the messages at issue had been posted before the statute was enacted.

Jurisdiction: 

Subject Area: 

Content Type: 

Omega World Travel v. Mummagraphics

Date: 

02/08/2005

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Omega World Travel, Inc.; Gloria Bohan; Daniel Bohan; Cruise.com

Party Receiving Legal Threat: 

Mummagraphics, Inc.; Mark W. Mumma

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of Virginia

Case Number: 

1:05-cv-00122

Verdict or Settlement Amount: 

$330,000.00

Legal Counsel: 

Kelly Wallace, Richard Scott Toikka

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Verdict (plaintiff)

Description: 

Mummagraphics, Inc., run by anti-spam activist Mark Mumma, operated websites devoted to opposing spam messages. Mumma received a number of unsolicited emails from Cruise.com, a subsidiary of travel agency Omega World Travel, Inc. In early 2005, Mumma posted comments on one of his websites accusing Omega, Cruise.com, and Daniel and Gloria Bohan (Omega's founders) of being "spammers." Mumma also posted a photo of the Bohans taken from the Omega website with a caption describing them as "cruise.com spammers."

In February 2005, Omega, Cruise.com and the Bohans sued Mumma and Mummagraphics in federal court, claiming defamation, copyright infringement, trademark infringement, and unauthorized use of the Bohans' likenesses. Mummagraphics and Mumma counterclaimed for violations of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act) and an oklahoma anti-spam statute.

The federal court granted summary judgment to Mummagraphics and Mumma on all of the plaintiffs' claims, except the defamation claim. It granted summary judgment to Gloria Bohan, Omega, and Cruise.com on the defendants' counterclaims based on the CAN-SPAM Act and Oklahoma law. Mummagraphics appealed, and the Fourth Circuit affirmed dismissal of the counterclaims. Omega World Travel, Inc. v. Mummagraphics, 469 F.3d 348 (4th Cir. 2006).

The defamation claim went to trial, and the plaintiffs won a $2.5 million jury verdict in their favor. On June 1, 2007, the court vacated the original judgment and remitted the judgment to $330,000 -- $10,000 each in compensatory damages to Omega World Travel, Cruise.com, and Gloria Bohan, and $100,000 each in punitive damages to Omega, Cruise.com, and Bohan. Plaintiffs are seeking to enforce the judgment in the United States District Court for the Western District of Oklahoma.

Jurisdiction: 

Subject Area: 

Content Type: 

Hargrave Military Academy v. Guyles

Threat Type: 

Lawsuit

Date: 

05/08/2006

Party Issuing Legal Threat: 

Hargrave Military Academy; Wheeler Baker

Party Receiving Legal Threat: 

Jerry Guyles; Melissa Guyles; Stewart Guyles

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Western District of Virginia

Case Number: 

7:06CV00283

Legal Counsel: 

Jane Glenn (Defendants); Joshua Wheeler, Rebecca K. Glenberg (Amicus Curiae)

Publication Medium: 

Email
Print
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Issued
Settled (total)

Description: 

After their son was expelled from the Hargrave Military Academy for stealing, Jerry and Melissa Guyles wrote a letter to other parents of Hargrave students, discussing their son's expulsion and their interactions with the administration, and expressing their view that the director of the School, Wheeler Baker, was lacking in leadership qualities. They subsequently set up a website called "HargraveHasProblems.com," on which they posted a copy of the letter and stories from other parents.

Baker and the school sued for defamation, interference with contract, and other torts under Virginia and North Carolina law. They sought, and the court granted (without notice or a hearing), an extraordinarily broad temporary restraining order barring the Guyles from contacting parents or operating the website. The plaintiffs then moved for sanctions against the Guyles for violating the terms of the temporary restraining order and to convert the temporary restraining order into a preliminary injunction.

The Guyles appeared in the action through counsel, and the ACLU filed an amicus curiae brief on their behalf, arguing that the temporary restraining order was an unconstitutional prior restraint on speech in violation of the First Amendment.

The parties eventually settled the dispute in a court mediation session. The terms of the settlement were not disclosed to the public. The court never ruled on the First Amendment question.

Jurisdiction: 

Subject Area: 

Content Type: 

CAIR v. Whitehead

Threat Type: 

Lawsuit

Date: 

03/29/2004

Party Issuing Legal Threat: 

Council on American-Islamic Relations

Party Receiving Legal Threat: 

Andrew Whitehead

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Circuit Court for the City of Virginia Beach, Virginia

Case Number: 

CL04000926-00

Legal Counsel: 

S. Lawrence Dumville, Reed D. Rubinstein

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

Andrew Whitehead published statements on his website, Anti-CAIR, that denounced the Council on American-Islamic Relations (CAIR) as a "terrorist supporting front organization" that had strong financial ties to Hamas and other Islamic terrorist organizations. In April 2004, CAIR sued Whitehead over these and similar comments in Virginia state court. During the discovery phase of the litigation, Whitehead requested extensive documentation regarding CAIR's finances and relationships with Hamas, Saudi Arabia, and Islamist organizations.

In April 2006, shortly before a hearing in which the court was to decide on several of Whitehead's discovery requests, the parties settled, and the case was dismissed with prejudice by stipulation. The terms of the settlement were not made public. Whitehead reported on his website that "the parties have reached a mutually agreeable settlement," but noted that "[t]he policies and procedures of Anti-CAIR (ACAIR) have not changed in any way as a result of the CAIR lawsuit settlement." Whitehead issued no apologies, retractions, or corrections, and the statements that triggered the lawsuit are still posted on his website.

Content Type: 

CMLP Notes: 

to-do: create separate entry for the letter -- an unpublished entry for the letter is already created on the site.

Jurisdiction: 

Subject Area: 

Draker v. Schreiber

Date: 

09/01/2006

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Anna Draker

Party Receiving Legal Threat: 

Benjamin Schreiber; Lisa Schreiber; Ryan Todd; Lisa Todd; Steve Todd

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

38th Judicial District Court, Medina County, Texas; Court of Appeals of Texas, San Antonio

Case Number: 

06-08-17998-CV (trial); No. 04-07-00692-CV (appeal)

Legal Counsel: 

Regina Bacon Criswell - Law Office of Regina Bacon Criswell; Ron A. Sprague - Gendry & Sprague, P.C.

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Material Removed

Description: 

Benjamin Schreiber and Ryan Todd, two 16-year old Clark High School students, posted a false MySpace page about their assistant principal Anna Draker in March 2006. The page was online for approximately one month before Draker learned of it. She contacted MySpace, and the social networking site took the page down at her request.

Draker sued the students and their parents in Texas state court, alleging that the page contained defamatory text and pictures and falsely depicted Draker as a lesbian, which she is not. Draker alleged that the students' parents negligently failed to supervise their children's use of the internet.  Later, she amended her complaint to include a claim for intentional infliction of emotion distress.

The students moved for summary judgment, asserting that because the "exaggerated and derogatory statements" included on the MySpace website were not assertions of fact that could be objectively verified, they were not defamatory as a matter of law.  The court agreed and dismissed the defamation claim against the students.  The students and parents then filed a motion for summary judgment on the negligence and intentional infliction of emotional distress claims. The court also granted this motion and dismissed the remainder of Draker's claims. 

Draker appealed the dismissal of her intentional infliction of emotional distress claim.  The Texas appeals court affirmed the lower court's ruling on August 13, 2008, holding that Draker's intentional infliction of emotional distress claim failed because it was duplicative of her defamation claim.

One of the students was also charged criminally, as a juvenile, with retaliation and fraudulent use of identifying information. (For more information, please see the CMLP's database entry on the related Texas v. Schreiber criminal matter).

Content Type: 

CMLP Notes: 

to-do: get other filings if possible

 

Threat Source: 

MLRC

Jurisdiction: 

Subject Area: 

Cisneros v. Sanchez

Date: 

08/24/2005

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Elena Cisneros

Party Receiving Legal Threat: 

Robert Sanchez

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal
State

Court Name: 

County Court, Cameron County, Texas; United States District Court for the Southern District of Texas

Case Number: 

2005-CCL-01024-A (State); 1:05-cv-00259 (Federal)

Verdict or Settlement Amount: 

$150,000.00

Legal Counsel: 

A. Peter Thaddeus, Montgomery English

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed
Retraction Issued
Settled (total)

Description: 

Robert Sanchez lost an election for City Commissioner in Brownsville, Texas, but kept the forum on his campaign website active after the election. Elena Cisneros, the wife of Sanchez's former opponent, sued Sanchez for defamation in Texas state court claiming that pseudonymous users of the site posted statements stating that she had used cocaine.

Cisneros claimed that Sanchez had posted some of the statements under a pseudonym, and that he was responsible for the postings of others because he had refused to remove them, even though he was aware of their defamatory character.

Sanchez removed the case to federal court on grounds that Section 230 of the Communications Decency Act (47 U.S.C. § 230(c)) protected him from liability. On Cisneros's motion to remand, the federal court held that, as an affirmative defense, CDA 230 did not provide proper grounds for removal of the action to federal court when the parties were both from Texas and the plaintiff had asserted only state law claims for relief. The court therefore remanded the case to state court, and the parties then reportedly settled the case for $150,000. Sanchez issued a full apology and retraction.

Jurisdiction: 

Subject Area: 

Content Type: 

Shamblin v. Martinez

Threat Type: 

Lawsuit

Date: 

11/06/2006

Party Issuing Legal Threat: 

Gwen Shamblin; Kent Smith; Regina Smith; 64 Other Members of the Remnant Fellowship Church

Party Receiving Legal Threat: 

Anonymous Blogger; Rafael Martinez

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Circuit Court of Williamson County, Tennessee

Case Number: 

No. 6648

Legal Counsel: 

G. Philip Anderson

Publication Medium: 

Blog
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Withdrawn

Description: 

An anonymous blogger made critical statements about Gwen Shamblin, leader of the Remnant Fellowship church, and about the group's beliefs and practices. One of the statements implied that two Remnant Fellowship members who were indicted for beating their eight-year old son to death had relied on advice from "Remnant leadership." Other statements detailed the prices paid by Shamblin for properties she owned. The anonymous blogger also allegedly posted photographs of the children of Remnant Fellowship members, family photos, names and ages of children, and members' home addresses.

Sixty-seven members of the group, including Shamblin, filed a lawsuit against the anonymous blogger in Tennessee state court, claiming defamation and false light invasion of privacy. The plaintiffs also named Reverend Rafael Martinez, who runs a website dedicated to warning the public about cults, in the complaint. Martinez maintains that he had no connection whatsoever to the anonymous blogger. The complaint alleges that Martinez defamed the plaintiffs by making statements that the church's practices were "dangerous and destructive" and indicating that church doctrine advocated "extreme fasting" and "extreme discipline for children," including spankings and whippings.

Martinez moved to dismiss the claim against him in January 2007. The court granted his motion in April 2007, but granted the plaintiffs permission to amend the complaint. Rather than amending, the plaintiffs voluntarily withdrew the lawsuit.

Content Type: 

CMLP Notes: 

 

 

Jurisdiction: 

Subject Area: 

Coons v. Oliphant (Lawsuit)

Date: 

01/31/2007

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Ron Coons

Party Receiving Legal Threat: 

John Oliphant

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Circuit Court for Davidson County, Tennessee

Case Number: 

07C339

Publication Medium: 

Email
Social Network

Relevant Documents: 

Status: 

Pending

Description: 

On December 22, 2006, John Oliphant sent a mass email and posted on his MySpace page an article entitled "the Worst Party Guest Ever," in which he made insulting remarks about Ron Coons. According to court filings, Oliphant accused Coons of drugging women at a party and included a picture of Coons and a caption saying "He's a pervert Dude."

On January 4, 2007, Coons's lawyer sent Oliphant a letter threatening legal action if he did not publish a retraction and apology. (Please see the CMLP Database entry on the related letter for more information.)

Coons sued Oliphant for defamation in Tennessee state court on January 31, 2007. Oliphant answered in March 2007 asserting, among other things, that his statements were true.

The case is pending.

Content Type: 

Threat Source: 

MLRC

Subject Area: 

Jurisdiction: 

CMLP Notes: 

Status checked on 6/3/2008, no new information (AAB)

Updated 1/29/09 - VAF

Status checked 6/17/09; no further information - CMF

AutoAdmit

Threat Type: 

Lawsuit

Date: 

06/08/2007

Party Issuing Legal Threat: 

John Doe I; John Doe II

Party Receiving Legal Threat: 

Anthony Ciolli; Mathew C. Ryan; Ryan C. Mariner; Individuals whose true names are unknown

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

District of Connecticut

Case Number: 

3:07CV00909

Legal Counsel: 

Marc Randazza (Ciolli); Charles E. Vermette, Jr.; Daniel J. Hoppe, Jr.; Orlando P. Ojeda, Jr.; W. Anthony Collins, Jr. (A horse walks into a bar); John R. Williams (AK47); Joseph G. Fortner, Jr.; Susan J. O'Donnell (Matthew C. Ryan, aka ".D")

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)
Subpoena Enforced

Description: 

Two female Yale Law School students, captioned as Does I & II, sued Anthony Ciolli, the former chief education director of the popular law school admissions forum, AutoAdmit, and a host of pseudonymous users of the forum over vulgar, sexually explicit, and threatening comments posted about them on the forum. In addition to making numerous derogatory and sexually explicit statements about the two students, pseudonymous users of the site created another website, t14talent: The Most Appealing Women @ Top Law Schools (now defunct), and posted photographs of one of the students without her permission. (Although the complaint is not entirely clear on this point, the student claims copyright ownership in these photographs in addition to publicity rights, indicating that she may have been the creator of the photos and posted them online.)

According to the complaint, the two students complained about the forum postings to the AutoAdmit staff, but AutoAdmit did not remove the material. Ciolli disputes that he had any authority to remove the offensive postings.

In June 2007, the two students sued in federal court in Connecticut, asserting claims of defamation, copyright infringement, unauthorized appropriation of name and likeness, unreasonable publicity given to another's life, false light invasion of privacy, and other torts. Soon after filing, they moved to proceed anonymously, and the court granted that request.

In August 2007, the plaintiffs moved to modify the court's scheduling order in order to give them time to investigate the identity of the pseudonymous defendants and to amend their complaint. The court granted the initial request and two subsequent requests for thirty-day extensions, the last of which was requested on October 4. According to a tip posted on David Lat's Above the Law blog, it is unlikely that the court will grant a fourth extension, so an amended complaint may be forthcoming relatively soon.

Update:

11/8/07 - Plaintiffs filed an amended complaint dropping Ciolli from the lawsuit.

1/24/08 - Plaintiffs filed a motion for expedited discovery seeking to uncover the identities of the pseudonymous posters listed in the complaint.

1/29/08 - Court granted motion for expedited discovery.

2/22/08 - Pseudonymous defendant "AK47" moved to quash the subpoena directed at AT&T requesting information about his identity.

3/2/08 - Plaintiffs deposed former defendant Anthony Ciolli, at which Ciolli acknowledged that his AOL Instant Messenger username is "AnthonyCiolli."

3/4/08 - Former defendant Anthony Ciolli filed a lawsuit in Pennsylvania state court against the plaintiffs, their lawyers, and other defendants for wrongful initiation of civil proceedings, abuse of process, libel, slander, false light invasion of privacy, tortious interference with contract, and unauthorized use of name or likeness.

3/18/08 - Plaintiffs issued a subpoena to AOL seeking the names of "all persons who have registered or used" the username "AnthonyCiolli" and related information about the account, including "other user names and login IDs and/or Internet Protocol ("IP") addresses associated with the IM username 'AnthonyCiolli.'"

4/7/08 - Ciolli filed a motion to quash the AOL subpoena in federal district court in Virginia.

06/13/08 - The court denied AK47's motion to quash the subpoena seeking his identity from AT&T.

08/05/08 - Plaintiffs filed an amended complaint that names Mathew C. Ryan (previously known by username ":D") as a defendant. Legal Satyricon "can confirm with 100% certainty that the guy in the complaint is neither an attorney nor a law professor."

8/13/08 - Defendant "a horse walks into a bar", a.k.a Ryan Mariner filed a motion to dismiss, arguing that the plaintiff's have stated no cause of action against him and that they have failed to prosecute the action against him despite offers to accept service made through counsel. 

9/10/08 - Plaintiffs filed papers in opposition to Mariner's motion to dismiss.

9/19/08 - The United States District Court for the Western District of Virginia held that the plaintiffs' subpoena to AOL seeking the names of "all persons who have registered or used" the username "AnthonyCiolli" was facially invalid because it was issued from the wrong court.  The court determined that it should have issued from the United States District Court for the Eastern District of Virginia. Because the court concluded that it lacked jurisdiction, it did not reach the merits of Anthony Ciolli's motion to quash

10/26/08 - Plaintiffs filed a notice of settlement and request for dismissal against defendant "Whamo."

3/31/09 - Pennsylvania federal court largely denied the defendants' motion to dismiss Anthony Ciolli's complaint in Ciolli v. Iravani, but gave defendants leave to renew their motion after jurisdictional discovery.  The court also struck certain allegations from the complaint relating to settlement negotiations in the Connecticut lawsuit. 

4/30/09 - Connecticut federal court denies Matthew Ryan's motion to dismiss. 

5/21/09 - Matthew Ryan files his answer to the second amended complaint in Connecticut federal court.

9/29/09 - Plaintiffs filed a Notice of Settlement and Request for Dismissal of Action Against Defendant ":D", A.K.A. Matthew C. Ryan

10/16/09 - Plaintiffs filed a Notice of Voluntary Dismissal of Action Against Remaining Defendants Without Prejudice by Doe 1, Doe 2

10/23/09 - Court dismissed case

Content Type: 

CMLP Notes: 

TO DO: Monitor

Updated 6/16/09 - CMF

Updated checked on 08/05/2008. {MCS}

Jurisdiction: 

Subject Area: 

BidZirk LLC v. Smith

Threat Type: 

Lawsuit

Date: 

01/10/2006

Party Issuing Legal Threat: 

BidZirk LLC; Daniel Schmidt; Jill Patterson

Party Receiving Legal Threat: 

Philip Russ Smith

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of South Carolina

Case Number: 

6:06CV00109

Legal Counsel: 

Pro Se

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Injunction Denied

Description: 

BidZirk, LLC is a reseller of items on eBay. Philip Smith contacted the company and engaged it to sell certain items on his behalf. Unhappy with the prices that he received, Smith published a four-part blog posting entitled "Special Report: You Gotta Be Berserk To Use An eBay Listing Company! The Whole Story." In the post, Smith depicted his negative experience with BidZirk and his interactions with the company's president, Daniel Schmidt. In the course of this discussion, Smith reproduced BidZirk's logo and made snarky comments about it. He also discussed more generally the positive and negative aspects of using an eBay listing company, such as BidZirk, and provided a checklist for readers to consult in deciding whether to do so. Additionally, he linked to an article on another website that discussed Schmidt and Patterson's upcoming wedding and contained a photograph of them.

Bidzirk, Schmidt and Patterson sued Smith in federal court in South Carolina in early 2006. The complaint included claims for violations of the Lanham Act (BidZirk), defamation (Schmidt), and "invasion of privacy" (Schmidt and Patterson). The "invasion of privacy" claim originally appeared to be a claim for misappropriation of name and likeness, but the plaintiffs adopted a "false light" theory in briefs opposing summary judgment.

BidZirk moved for a preliminary injunction barring Smith's use of its trademark and the district court denied the motion. The district court adopted the Report and Recommendations of the magistrate judge, which concluded that Smith's blog post fit the statutory exemption to trademark dilution for "news reporting or news commentary." See BidZirk v. Smith, No. 6:06-00109 (D. S.C. Apr. 10, 2006) ; see also 15 U.S.C. § 1125(c)(4)(C). BidZirk appealed, and the Fourth Circuit affirmed the district court.

Update:

9/26/2007 - Smith filed a motion for summary judgment.

10/22/2007 - The district court granted summary judgment to Smith, reaffirming that Smith was entitled to the statutory exemption for "new reporting and news commentary." It also sanctioned the plaintiffs' counsel $1000 for filing and refusing to withdraw a "lis pendis" on Smith's condo.

2/19/2008 - Smith filed a letter request for a hearing regarding sanctions. Court denied the request.

Content Type: 

CMLP Notes: 

to-do: create threat entry for the letter threat (see complaint para. 12);

 

Jurisdiction: 

Subject Area: 

Melvin v. Doe

Threat Type: 

Lawsuit

Date: 

06/14/1999

Party Issuing Legal Threat: 

Joan Melvin

Party Receiving Legal Threat: 

John Doe(s)

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Twentieth Judicial Circuit of Virginia, Loudon County; Court of Common Pleas, Alleghany County, Pennsylvania

Case Number: 

No. 21942 (Virginia); GD 99-10264 (Pennsylvania)

Legal Counsel: 

Ann Beeson, Ronald Barber, Witold Walczak

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Joan Melvin, a Pennsylvania Superior Court judge, sued the anonymous operator or operators of the website, "Grant Street '99," because of statements that appeared on the website accusing her of political activity and lobbying in connection with the gubernatorial appointment of another judge.

Melvin initially sued the anonymous defendant(s) for defamation in Virginia state court and sought an ex parte order requiring America Online (the website's hosting service) to disclose the identity of the webmaster. The Virginia court dismissed the action for lack of personal jurisdiction, and Melvin re-filed the lawsuit in Pennsylvania state court and subpoenaed AOL for discovery of the identity of the webmaster. Through counsel, the anonymous defendant(s) moved for a protective order against discovery of their identities on grounds that the First Amendment protected the right to engage in anonymous political speech.

The trial court initially stayed discovery of the identity of the defendant(s) and allowed ordinary fact discovery to proceed in order to give the defendant(s) the opportunity to show that Melvin could not prevail in the lawsuit. The defendant(s) moved for summary judgment, arguing, among other things, that Melvin could produce no evidence of economic harm. The trial court denied the motion for summary judgment, finding that Melvin had brought forth evidence of falsity, defamatory meaning, and actual harm. At this point, the court denied the defendant(s)' motion for a protective order barring discovery of their identities pending a trial on all issues but malice.

The anonymous defendant(s) appealed. The Superior Court quashed the appeal, holding that the denial of a motion for a protective order was not an appealable collateral order. The anonymous defendant(s) appealed to the Pennsylvania Supreme Court, which reversed the decision of the Superior Court, holding that the discovery ruling was appealable. The court remanded the case to the Superior Court "for consideration of Appellants' constitutional question, namely, whether the First Amendment requires a public official defamation plaintiff to establish a prima facie case of actual economic harm prior to obtaining discovery of an anonymous defamation defendant's identity." Melvin v. Doe, 836 A.2d 42, 50 (Pa. 2003).

Melvin voluntarily dropped the lawsuit in 2004.

Later, former Alleghany County employee John Chapman revealed that he was behind "Grant Street '99."

Content Type: 

CMLP Notes: 

SB editing

Jurisdiction: 

Subject Area: 

Health Solutions Network v. Baker

Date: 

01/29/2007

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Health Solutions Network, LLC; Ralph Penton

Party Receiving Legal Threat: 

Jerry Baker

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of Pennsylvania

Case Number: 

2:07-CV-00369

Legal Counsel: 

Pro se

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed
Settled (total)

Description: 

On his blog, "Miscellaneous Debris," Jerry Baker accused Health Solutions Network, LLC, of being behind spam emails coming from RXCart.org. Baker explained how he supposedly traced the emails back to Health Solutions and disclosed the name and phone number of Health Solution's founder, Ralph Penton. Penton maintained that he received harassing and threatening phone calls as a result.

In January 2007, Health Solutions and Penton sued Baker in federal district court in Pennsylvania for defamation, trademark infringement and dilution, tortious interference with contracts, and restraint of trade or commerce in violation of 15 U.S.C. § 1. The complaint did not make clear exactly how Baker's statements constituted trademark infringement and dilution, or how (or with whom) he entered into a conspiracy in restraint of trade.

In June 2007, Health Solutions and Penton voluntarily dismissed the lawsuit with prejudice. The "with prejudice" designation leads us to believe that the case was settled, but the record is unclear.

Content Type: 

Subject Area: 

Jurisdiction: 

Threat Source: 

MLRC

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