Free Speech

The Government Responds to the DMLP Amicus Brief in United States v. Auernheimer

On Friday, the Department of Justice filed its appellee brief before the U.S. Court of Appeals for the Third Circuit in United States v. Auernheimer.

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Real or Fake, It's Protected by the First Amendment: Court Awards Fees in "Storage Wars" Case

StorageA California court recently held that an allegedly fake reality television show can be an expression of free speech that warrants protection under the First Amendment.

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Metadata Surveillance, Secrecy, and Political Liberty (Part Two)

(This is the second part of a two-part post. In Part One, Bryce Newell examined the implications of government collection and analysis of metadata relating to electronic communications. Today, Bryce picks up from where he left off, considering the implications of government surveillance under different conceptions of freedom.)

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Massachusetts v. D'Ambrosio

Threat Type: 

Criminal Charge

Date: 

05/01/2013

Party Receiving Legal Threat: 

Cameron D'Ambrosio

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Lawrence District Court (District Court Department of the Trial Court of Massachusetts)

Legal Counsel: 

Geoffrey DuBosque, The Law Offices of Geoffrey DuBosque, PC

Publication Medium: 

Social Network
Other

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

The plaintiff, an 18-year old who aspires to be a rapper, posted lyrics on his Facebook page referencing the Boston Marathon bombings two weeks after the bombings occurred. D'Ambrosio also posted that the White House was a "federal house of horror." While his Facebook page has since been removed, in one line of the rap, D'Ambrosio wrote, "everyone you will see what I am going to do, kill people." D'Ambrosio also recorded a Youtube video and sent text messages that referenced the content of this rap.

On May 1, 2013, D'Ambrosio did not attend school, and at least one student, who had seen the Facebook post, notified school officials, who then notified police. D'Ambrosio was arrested one week after the Facebook post and charged with Communicating a Terrorist Threat under Mass. Gen. Laws c. 269, section 14, a felony charge that can bring up to 20 years in prison. According to Chief Solomon of the Methuen Police Department, D'Ambrosio did not make threats against particular individuals or the school in his rap. Judge Lynn Rooney of Lawrence District Court originally set D'Ambrosio's bail at $1,000,000 but this was subsequently revoked, and D'Ambrosio was held without bail.

On May 2, 2013, D'Ambrosio was arraigned in Lawrence District Court and, represented by his attorney Geoffrey DuBosque, plead not guilty on charges of making a bomb threat.

After D'Ambrosio's arrest, Fight for the Future and the Center for Rights posted a petition on their website entitled "Free Cameron D'Ambrosio!" The website detailed D'Ambrosio's arrest and argued for protection of D'Ambrosio's First Amendment privileges and freedom of speech on the internet. The petition received over 90,000 signatures.

On June 6, 2013, a grand jury refused to indict D'Ambrosio on a charge of making terrorist threats and Judge Rooney ordered that he be released on personal recognizance. On June 27, 2013, the charges against D'Ambrosio were officially dropped.

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Metadata Surveillance, Secrecy, and Political Liberty (Part One)

(Following on from Rebekah Bradway's post last week regarding government-created metadata as public records, we are pleased to present a two-part post from Bryce Newell on the role of metadata in government surveillance. -- Ed.)

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Ourway Realty, LLC d/b/a Plainridge Racecourse v. Keen

Date: 

06/04/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Thomas Keen

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Commonwealth of Massachusetts, Norfolk County Superior Court Dept.

Case Number: 

2012-00963

Legal Counsel: 

Prince Lobel Tye LLP: Jeffrey J. Pyle; American Civil Liberties Union of Massachusetts: Matthew R. Segal, Sarah Wunsch

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

The plaintiff owns the Plainridge Racecourse, a harness horse-racing track in Plainville, Massachusetts. Thomas Keen maintains the website "NoPlainvilleRacino" which opposes the development of a gaming facility in Plainville, Massachusetts.

On April 20, 2012, Ourway Realty d/b/a Plainridge Racecourse sent a cease and desist letter to Keen which cited a photograph Keen had posted on his NoPlainvilleRacino website. The picture showed an individual who was suspected of breaking and entering into a building on the Plainville Racecourse. Underneath the picture, another user left a comment that said, "I wonder if they checked the racetrack, lol." The cease and desist letter alleged that Keen's posting was "objectionable, unprofessional and actionable" and stated that Keen posted the photo to "associate the alleged crime" with Plainville Racecourse. The letter demanded that Keen remove the posting, refrain from posting "similar damaging material" in the future. The letter also demanded that Keen issue an apology on his website, Facebook, and the Sun Chronicle newspaper.

On June 4, 2012, Ourway filed a complaint against Thomas Keen in the Superior Court in the Commonwealth of Massachusetts for defamation. The complaint stated that the posting "intimates that criminals are clearly associated with the Plaintiff's present operations," and alleged that because of Keen's posting, Ourway suffered severe economic harm. The plaintiff requested damages, injunctive relief to remove "offensive material" from Keen's website, and an order prohibiting future publication of "information similar in nature."

On July 20, 2012, Keen served a Special Motion to Dismiss on Ourway pursuant to Massachusetts' anti-SLAPP statute, G.L. c. 231, § 59H. Keen's memorandum of law in support of the motion asserted that the comment at issue was removed prior to the commencement of litigation and called the plaintiff's action a "class example" of a SLAPP suit. The memorandum cited Keen's right to petition under Massachusetts' anti-SLAPP statute, saying that Keen's website satisfies at least four of the five forms of right to petition protected under the law:

  1. The site contains a "written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding" over whether a "slot parlor would be good for Plainville[,]" an issue that the Plainville Board of Selectmen will negotiate with Ourway under the MA gaming statute.
  2. The site is "reasonably likely to enlist public participation" because it encourages "residents to contact selectpersons and ‘tell them a racino is not in Plainville's best interest.'"
  3. The site is "reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceeding" because the website elicits readers to contact town officials regarding their stance on the racino.
  4. The site's stance on racino falls under the final definition of § 59H, "any other statement falling within constitutional protection of the right to petition government" as the website was "intended to organize" a community "around an issue of concern."

The memorandum further argued that Ourway could not show by a preponderance of the evidence that the petition caused the plaintiff actual injury or that Keen's right to petition lacked any "reasonable factual support or arguable basis in law." It cited the "lol" from the user's comment, saying that "statements written ‘not for serious effect' are simply not libelous."

Keen also served an affidavit which discussed his opposition to the casino development and his establishment of the NoPlainvilleRacino website. His affidavit detailed the origin of the photograph, which was taken by a webcam of a burglar who broke into Keen's home; that photo was posted by the Plainville Police Department on its Facebook page. An administrator of the No Plainville Racino Facebook page shared the photo on that page, under which a Facebook user posted the comment in question.

On August 17, 2012, Ourway served Keen with an Opposition to Keen's Special Motion to Dismiss. The memo in opposition said that the anti-SLAPP statute was not meant to protect Keen's conduct, as § 59H is not meant to be an "absolute privilege." The memo in opposition uses the example of an "individual [going] onto any website regarding pending legislation and mak[ing] comments or insinuations unassociated with . . . the site, such as baseless accusations of accusing their opponents of a crime or harboring criminals and then hid[ing] behind the statute" as an example of what the statute was not intended to cover.

On September 12, 2012, Keen served a Reply in Support of Special Motion to Dismiss Pursuant to G.L. c. 231 § 59H, saying that Ourway's memo in opposition differed from the complaint's allegations and that Ourway failed to meet its burden of proof.

Keen's anti-SLAPP motion papers, Ourway's opposition, and Keen's reply were filed with the court on September 17, 2012, pursuant to Superior Court Rule 9A, and was docketed by the court on September 19, 2012

On December 13, 2012, the court allowed Keen's Special Motion to Dismiss, finding that the plaintiff's complaint is based on Keen's "petitioning activities" on his website and that Ourway failed to establish that the "petitioning activities were devoid of factual or legal merit." Keen applied for an award of attorneys' fees, and on April 8, 2013, was awarded $24,776.00 in fees and $136.37 in costs.

Ourway initially appealed the court's ruling, but stipulated to dismissal of its appeal on April 30, 2013.

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Monsarrat v. Filcman

Date: 

04/30/2013

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Deb Filcman, Ron Newman, Does 1-100

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Middlesex Superior Court Department of the Trial Court of Massachusetts

Case Number: 

MICV2013-00399-C

Legal Counsel: 

Dan Booth (Booth Sweet LLP), Zachary C. Kleinsasser, Michael J. Grygiel (Greenberg Traurig, LLP)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

On February 4, 2013, Jonathan Graves Monsarrat filed a complaint in the Superior Court Department of Middlesex County, Massachusetts against defendants Deb Filcman, Ron Newman, and John and Jane Does 1-100. The complaint alleges that the defendants posted defamatory comments about the plaintiff on the website www.LiveJournal.com beginning on February 4, 2010, which related a linked-to blog post by defendant Filcman on the Somerville Journal's "Wicked Local" webpage. Defendant Newman administers the "davis square" forum on the site on which Monsarrat alleges many of the defamatory responses were posted. As LiveJournal is an online forum, many users are known only by aliases; Monsarrat asserted claims against these commentators by naming them as "John and Jane Does 1 through 100" until their identities could be ascertained through the discovery process.

The defendants' posts concerned Monsarrat's arrest on January 29, 2010, in connection with charged of keeping a noisy and disorderly home and serving alcohol to persons under 21. While these charges were ultimately dismissed against Monsarrat, the plaintiff alleges that the defendants' comments ruined his "reputation, regard, esteem and goodwill." The complaint cites to many of the comments posters made to the "davis square" forum, alleging that these posts are particularly defamatory as they affect him and his businesses locally.

Monsarrat's complaint included claims for: defamation; a violation of Massachusetts' Unfair and Deceptive Trade Practices Act, Mass. Gen. L. ch. 93A; business disparagement; common law copyright infringement (based on photographs taken from Monsarrat's website); intentional infliction of emotional distress; and civil conspiracy.

The complaint alleges that the defendants "intentionally planned and orchestrated this cybersmear attach" [sic] and that defendants "conspired together" to commit the acts which injured Monsarrat. Monsarrat's complaint claims damages amounting to over $500,000 from medical expenses, lost wages (documented and anticipated), and reputational damages.

On April 30, 2013, Monsarrat filed an amended complaint. The amended complaint included all of the initial allegations, and added that under Monsarrat's fourth claim for relief - common law copyright infringement - the defendants' misappropriation was not "for fair use or satire purposes" but instead "in furtherance of their collective willful, wanton and tortious conduct." The amended complaint also included additional damage demands in the form of "costs and disbursements plus interest from the date of commencement" of the action.

On May 14, 2013, defendant Newman's attorney sent a letter in response to Monsarrat's complaint. The answer described Newman's discussion on the LiveJournal forum as "promoting respectful, lively conversation without imposing ham-fisted restraint on the free speech of the community." The letter addressed each of the complaint's assertions in turn, including asserting that:

  • no statements attributed to Newman could sustain a defamation claim;
  • the complaint did not state a Chapter 93A claim against any defendant, and Monsarrat had failed to send a pre-suit demand letter to Newman as required under Chapter 93A;
  • on the business disparagement claim, Monsarrat's complaint did not point to any "actionably false statements" by the defendants, and did not identify any of the plaintiff's products that were disparaged;
  •  "there is no such thing" as common-law copyright infringement;
  • Monsarrat's infliction of emotional distress claim would fail as the complaint does not show that the defendant acted without privilege;
  • on the conspiracy claim, the complaint does not "identify any statement or action by which Mr. Newman could be inferred to have agreed to injure the plaintiff"; and
  • punitive damages for defamation have not been permitted in Massachusetts since 1974.

The May 14th letter claims that Monsarrat's claims are wholly without merit and were brought in bad faith, and demands that Monsarrat's attorney file a notice voluntarily dismissing the complaint with prejudice or else face sanctions.

On May 28, 2013, defendant Filcman's attorney sent a letter in response to Monsarrat's complaint. The letter contends that Filcman's article on Monsarrat's January 2010 arrest is protected under the First Amendment and adds that the plaintiff's allegation of a "wide-spread cyber-smear campaign" is without basis "in fact or law" and "frivolous, abusive, and harassing." In addressing the defamation claims, the letter points to Massachusetts' fair report privilege that provides a safe harbor on fair and accurate reports. The letter also asserts that there is "no such thing" as a common law copyright claim, and under the federal Copyright Act, the plaintiff's photograph was not federally registered and his claim would therefore fail.

On June 7, 2013, Monsarrat's attorney filed a voluntary dismissal with prejudice (a copy of the official text is posted on LiveJournal). No settlement was reported on the docket of the court and no payments were made.

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DMLP files brief seeking First Amendment scrutiny in United States v. Auernheimer

Yesterday the Digital Media Law Project, with help from the Cyberlaw Clinic, filed an amicus brief in the United States Court of Appeals for the Third Circuit in United States v.

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Baker v. Haiti-Observateur Group

Date: 

09/10/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Leo Joseph, Haiti-Observateur Group

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

Southern District of Florida

Case Number: 

12-cv-23300-UU

Legal Counsel: 

Sanford Lewis Bohrer, Scott Daniel Ponce, Amanda Jean Hill, Eric Benjamin Funt, Jonathan Douglas Stratton, Pedro Gassant (Holland & Knight LLP)

Publication Medium: 

Print
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Denied

Description: 

On Sept. 10, 2012, Haitian Prime Minister Laurent Lamothe and "prominent businessman" Patrice Baker filed suit in federal court against Haiti-Observateur Group, an online and printed news publication, and Leo Joseph, a Haitian-American journalist who owns and edits Haiti-Observateur. The plaintiffs claimed that the defendants published defamatory statements in two articles, titled "La Haitel en vente pour 25 million $?" and "Global Voice et SOWCI ensemble pour ruiner la TELECO." The articles reported on the roles Lamothe and Baker played in the sale of the Haitian telecommunications company Haitel, claiming that the plaintiffs orchestrated or already profited from the sale.

The complaint alleged that 10 specific statements published were false and defamatory, calling the statements "outrageous, scandalous and reminiscent of a tabloid publication." The plaintiffs argued that the statements were defamatory both (1) facially, saying the statements attributed conduct including illegal business practices, racketeering, corruption and conspiracy to the plaintiffs; and (2) per quod, implying degrading conduct when taken in context and thereby exposing the plaintiffs to "distrust, hatred, contempt and obloquy." The complaint alleged that the defendants' statements were "false and conjured to destroy reputations" and had injured the plaintiffs' good names, "stellar" reputations, and standing in their communities, noting the large Haitian population that resides in the Southern District of Florida, where the suit was filed. In filing suit, the plaintiffs sought damages, interests, costs, and attorney's fees.

On Jan. 16, 2013, the clerk entered a default against defendant Joseph because he failed to respond to the complaint. Haiti-Observateur Group had already been dismissed as a defendant in the plaintiff's amended complaint.

On Feb. 5, 2013, the plaintiffs filed a motion for entry of default judgment, attaching a proposed order for the court to use. The court formally issued the same order on Feb. 6. The order stated that the plaintiffs had succeeded on the merits of their defamation claim, that the defendant's statements were made with actual malice, and that the damage to the plaintiffs' reputation constituted irreparable harm. Further, the order permanently enjoined Joseph from publishing any future communications about Lamothe or Baker "in either their professional, personal or political lives."

On March 4, 2013, Joseph filed a motion with the court to set aside its entry of default and default judgment. Joseph claimed that the court's order constituted an unconstitutional prior restraint and that the court was not allowed to permanently enjoin defendants in defamation cases. Joseph also argued that the order contained an error of law because there were no well-pleaded allegations of actual malice, and therefore the plaintiffs failed to state a claim. He argued that the complaint had not alleged clear and convincing evidence of actual malice, but merely presented a legal conclusion not entitled to the assumption of truth, especially in the case of default. Joseph further argued that the plaintiffs were not entitled to a presumption of injury, and that he had not been properly served.

In an opposition filed on March 21, 2013, the plaintiffs claimed that they properly pleaded actual malice because the complaint listed the defamatory statements and alleged that they were made with knowledge of their falsity or reckless disregard for the truth. Lamothe and Baker claimed there was a presumption of injury because "the defamatory statements made malign their position and professional competence and their fitness to engage in their profession." The opposition also stated that the damages suffered by the plaintiffs fell under a business interference exception to the general rule against injunctive relief and prior restraints on speech, because there was an inference of adverse effects on the plaintiffs'
relationships and difficulty quantifying the actual damages. The plaintiffs also claimed that the defendant was properly served.

On April 9, 2013, the judge issued an order on the motion to set aside the default judgment. The court found that the complaint's assertion that "[d]efendants' statements were made with actual malice" was a legal conclusion and thus did not fulfill the requirements for a well-pleaded allegation. Therefore, the court ordered the plaintiffs to file a second amended complaint setting forth the facts that support their allegation of actual malice. Regarding whether the order was an unconstitutional prior restraint, the court found that because the plaintiffs had not asked for an injunction in their complaint, injunctive relief should not have been entered. The order stated, "[T]he Court cautions Plaintiffs that prior restraints on speech are disfavored." The court noted that the plaintiffs sought to enjoin more than just defamatory speech, and "[j]udgments that enjoin the publication of non-defamatory statements are invalid." Because there is a well-settled rule prohibiting injunctions in defamation cases, the court noted, the plaintiffs were required to include specific facts in their second amended complaint that would warrant such "extraordinary relief." The court also found that there was no proof of the plaintiff's assertions that the defendant had been properly served.

The plaintiffs filed a second amended complaint on April 19, 2013, which asserted that defendant Joseph knew that the allegedly defamatory statements were false, in part because of his business relationship with a shareholder of Haitel, and also because it was common knowledge that Haitel was never sold. Additionally, the second amended complaint included a new claim of tortious interference with advantageous relationships. The plaintiffs claimed that the alleged defamatory statements caused the plaintiffs' business relationships and political counterparts to question whether Baker was being investigated by the FBI and whether Lamothe acted consistently with Joseph's allegations, causing damage to the plaintiffs. The second amended complaint also asked the court to enjoin Joseph from publishing false and defamatory statements concerning the plaintiffs.

On April 25, 2013, Joseph filed a motion to dismiss the second amended complaint for failure to state a claim. Joseph claimed that the second amended complaint did not satisfy the pleading requirements because it did not directly quote the specific statements alleged to be defamatory and the plaintiffs did not attach copies of the relevant articles. Joseph also asserted that the second amended complaint did not allege that Joseph published the statements with actual malice because it did not allege Joseph's subjective knowledge of falsity. Joseph also argued that the plaintiffs failed to state a claim for tortious interference, because (1) that claim was based on the same statements as the defamation claim and would fail with it and (2)  the second amended complaint did not properly allege all of the elements of the claim.

The court issued its order on the motion on May 30, 2013. It agreed with Joseph that the second amended complaint was defective because the court could not determine whether the statements were defamatory without the plaintiffs submitting the relevant articles and because the plaintiffs merely summarized the allegedly defamatory statements. The court granted the plaintiffs an opportunity to cure this in a third amended complaint. The court also advised the plaintiffs that some of the summarized statements were not clearly defamatory. Regarding actual malice, the order stated that the second amended complaint's allegation that Joseph had knowledge of the falsity of his statements, while "not a model of clarity," could arguably be sufficient to support the plaintiffs' claim of actual malice. The court thus ordered the plaintiffs to file a more definite statement of the allegation. The court further stated that "a determination on whether the single publication rule bars [the tortious interference claim] is premature at present." The order also stated that the plaintiffs could only amend their complaint "to cure the defects identified in this order," and that the order was the final opportunity for the plaintiffs to cure the defects.

On June 14, 2013, the plaintiffs filed a third amended complaint. The third amended complaint asserted, among other things, that Joseph had acknowledged the falsity of his statements in a teleconference and that he acted with actual malice "by utilizing his publication to publish statements which benefit him and his business partners/creditors while having knowledge as to their falsity." The third amended complaint gave exhibit citations for each statement allegedly written by the defendant. It contained no claim for tortious interference.

On June 25, 2013, Joseph filed a motion to dismiss the third amended complaint for failure to state a claim. The motion argued, among other things, that:

(1) the plaintiffs exceeded the scope of leave to amend they were granted, because the third amended complaint "was premised almost entirely upon statements that are different than the ones summarized in the [second amended complaint]";

(2) as to three of the articles identified in the new allegations, the plaintiffs did not satisfy the statutory requirement in Florida that requires a plaintiff to issue a retraction demand before filing a defamation suit;

(3) the alleged statements were not actionable as defamation, because some of the plaintiffs' summaries of alleged statements did not reflect actual statements in the articles, the plaintiffs did not allege what parts of some of the statements were false, and some of the statements did not identify the plaintiffs, were opinion or rhetorical hyperbole, or fair and accurate reports of government information; and

(4) the plaintiffs did not sufficiently plead actual malice, because rather than alleging facts to indicate Joseph's state of mind at the time of publication, they relied upon alleged facts occurring only after the statements were published.

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France Soon to Say "Get Lost" to its Criminal Offense to the President Law

The Legal Committee of France's Chamber of Representatives voted unanimously on March 27 to propose to repeal the offense of insulting the President of the Republic, which is still a crime under article 26 of the French Press law. French Representatives will now vote on April 18 to adopt the proposal to repeal article 26, then will send the proposal to the Senate.

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RT the Hate: France and Twitter Censorship, Part Two

Last October I wrote about the rise in popularity among French Twitter users of the hashtag #unbonjuif ("a good jew"). In December we saw a growth in other offensive hashtags, including the homophobic #Simonfilsestgay, ("if my son is gay") or the xenophobic #SimaFilleRamèneUnNoir ("if my daughter brings a Black man home").

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Giving Thanks for Free Speech: NH Supreme Court Upholds the Right to Dress Up as Bigfoot for the Fun of It

Fighting for the First Amendment can often mean confronting and defending vile, caustic, hurtful, and downright disgusting speech. But not all free speech cases address the words of the most hateful or offensive amongst us. Every once in a while you get a case concerning speech at its most fun and playful.

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Garcia v. Nakoula

Threat Type: 

Lawsuit

Date: 

09/18/2012

Party Receiving Legal Threat: 

Nakoula Basseley Nakoula; Google, Inc.; YouTube; Does 1-200

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

California Superior Court, Los Angeles County (state); United States District Court for the Central District of California (federal)

Case Number: 

BC492358 (state); 2:12-cv-8315 (federal district court); 12-57302 (Ninth Circuit)

Legal Counsel: 

Timothy Alger, Perkins Coie (for defendants Google and YouTube)

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Description: 

This case concerns the "Innocence of Muslims" video, which portrays the Prophet Muhammad in a highly offensive light and caused protests throughout the world in the fall of 2012.

Cindy Lee Garcia was an actress who appeared in the film. According to the complaint filed on September 19, 2012, Garcia was never informed during the production of the movie of the offensive and inflammatory nature of the film. According to the complaint, "Plaintiff was unaware of the vile content contained in the Film, as the content and overall purpose of the Film was concealed from them at all times . . . ." The complaint further claims that Garcia has received death threats because of the film, was fired from her job, and has been informed by her family that she is no longer permitted to see her grandchildren.

The complaint alleges invasion of privacy under the California Constitution, false light, violation of California's right of publicity statute, violation of California's unfair competition law, and intentional infliction of emotional distress. As against defendant Nakoula and 50 doe defendants allegedly associated with Nakoula, Garcia also alleges fraud and slander. Garcia also sought a temporary restraining order blocking distribution of the film.

On September 20, 2012, the California Superior Court for Los Angeles County denied the temporary restraining order, finding a lack of likely success on the merits.

According to the docket (search for case BC492358) plaintiff Garcia filed a request for dismissal without prejudice, which was granted on September 25, 2012.

Update:

On September 26, 2012, Garcia filed a federal complaint in the United States District Court for the Central District of California, re-alleging fraud, unfair business practices, libel, and intentional infliction of emotional distress against defendant Nakoula and the doe defendants allegedly associated with Nakoula. Garcia also alleges copyright infringement as against all defendants, claiming that Nakoula's contract never addressed copyright ownership, and her performance in the film vested her with a copyright interest in the film. Garcia notes in the complaint that she filed five DMCA "takedown" notices to YouTube on September 24th and 25th, which were not acted upon by the time of the complaint's filing.

On October 17, 2012, Garcia filed an application for a temporary restraining order to take down the video on YouTube. Garcia again argued that her performance was independently copyrightable from the Innocence of Muslims film, and that neither Nakoula nor YouTube had a license to use the performance. Garcia cites the recently-signed WIPO Audiovisual Performances Treaty for this proposition (which is currently in the ratification process) and statements made by the United States Patent and Trademark Office suggesting that actors are currently treated as authors under copyright law. Garcia filed a request for judicial notice with the statements from the USPTO.

On October 18, 2012 the court issued a minute order on Garcia's application, rejecting an ex parte ruling on the injunction and transforming the application to a motion for a preliminary injunction. The court ordered any opposition briefs from the defendants to be filed by October 29, and a reply filed by November 5, before a hearing scheduled for November 19, 2012.

On October 19, 2012, Occupy Los Angeles moved to intervene in the case, in support of the plaintiff. The court denied this motion in a minute order on November 15th.

On October 29, 2012, Google and YouTube filed an opposition brief against a preliminary injunction. Google and YouTube argued that Garcia's brief appearance in the film does not vest her with any copyright interest, and that the lawsuit is a plain attempt to censor the video because of its offensiveness. Google and YouTube also filed an opposition to the request for judicial notice of certain factual circumstances around the film and the USPTO's opinions regarding the WIPO treaty.

On November 5, 2012, Garcia filed a reply to Google and YouTube's opposition to the preliminary injunction. Garcia argued that denial of authorship rights to actors in films contravenes the custom and practice of the film industry, and that First Amendment concerns should not be addressed, due to lack of state action.

On November 28, 2012, Timothy Alger, attorney for defendants Google and YouTube, filed a declaration wherein he stated that he had obtained a copy of a copyright and likeness release filled out by Garcia in relation to this film, which assigns any copyright interest in her performance to Nakoula. After Garcia's attorney expressed doubts as to the authenticity of this document, Alger went to Nakoula (who is referred to in this document by his alternative name, "Mark Basseley Youssef") who signed his own declaration stating that Garcia signed this release.

On November 29, 2012, Garcia filed a request to cross examine both Nakoula and Alger. Google and YouTube filed an opposition to this request on November 30th. The court denied the request to cross examine on the same day, noting that the declarations would not be used for disposition of the pending motion for preliminary injunction. On the same day Garcia filed a request to strike the two declarations, accompanied by a declaration by James Blanco, a handwriting analyst, who concluded based on comparison of specimen handwriting samples that Garcia is not the person who signed the copyright and personality release.

Also on November 30th, the court issued a minute order denying the motion for a preliminary injunction. The court found that Garcia was unlikely to be able to prove success on the merits of her copyright claim, as the Ninth Circuit case Aalmuhammed v. Lee would suggest that she should not be considered the author of the final film, and to the extent that a copyright interest could be found in the performance it is likely that Garcia gave Nakoula an implied license under the Ninth Circuit case Effects Associates v. Cohen.

On December 21, 2012, Garcia filed a notice of appeal of the preliminary injunction ruling to the Ninth Circuit. The Ninth Circuit's scheduling order has appellant briefs due January 18, 2013, with appellee's brief due February 15, 2013, or 28 days after service of the appellant's brief.

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AFS created post and edits through 1/3/12

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Announcing a Guide to Reporting at the 2012 Republican and Democratic National Conventions

Click here to download
the guide (pdf)
As you may have seen on our home page today, the DMLP has released a Guide to Reporting at the 2012 Republican and Democratic National Conventions. I wanted to share a little more about why and how we decided to release this document.

As we mentioned already, the conventions are creatures of chaos. Thousands of journalists and even more demonstrators will descend upon these cities. These crowds are typically met with an overwhelming police presence, and the clashes between protesters and the police typically result in numerous arrests. Avoiding police detention as a journalist is often a challenge, as a large tangle of laws regulates crowd behavior, and police often enforce these complex laws with sweep arrests of whole crowds.

Many experienced journalists are not strangers to such tough situations, but the nature of the conventions as "national special security events" presents special concerns, especially around the norms journalists establish with local law enforcement. The Secret Service takes the lead during these national security events, and the normal journalist–police relationships that allow journalists to report from over police lines are likely to be jettisoned in favor of a strict enforcement of the law.

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Balancing Interests for an Open Internet: Verizon Challenges the FCC's Net Neutrality Rules

This July, Verizon Communications and MetroPCS Communications filed a brief in the U.S. Court of Appeals for the D.C. Circuit, arguing that the Federal Communications Commission (FCC) lacks the authority to enact net neutrality rules and that these neutrality rules are unconstitutional under the First and Fifth Amendments. Now, debate over the FCC's approach to net neutrality is not a recent development.

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Olympic Citius Altius Fortius Pan-American: The U.S. Olympic Committee's Exclusive Rights

The U.S. Olympic Committee ("USOC") has a reputation for aggressively policing their exclusive rights to certain words, phrases, and symbols. And they have a special act of Congress to back them up.

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