Free Speech

Newport Television, LLC v. Free Press

Date: 

07/01/2011

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Free Press

Type of Party: 

Media Company

Type of Party: 

Organization

Legal Counsel: 

Corie Wright (Policy Counsel for Free Press)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Non-profit media reform organization Free Press recently created a brief video related to its "Change the Channels" campaign, a campaign to resist what it calls the "covert consolidation" of media companies. The video included a critique of Jacksonville, Florida stations WAWS-TV (a Fox affiliate) and WTEV-TV (a CBS affiliate), who share a common website. The video was posted on YouTube.

Newport Television, LLC, a television station holding company that is the owner of WAWS-TV and the operator of WTEV-TV, sent Free Press a cease-and-desist letter on July 1, 2011, demanding that Free Press remove all WAWS and WTEV content from the video, including the stations' logos. Newport alleges that Free Press's use of the  logos constitutes copyright infringement. The letter also suggests that use of the stations' logos was false and misleading. Newport further requested that YouTube remove the Free Press video under the notice-and-takedown procedures of the Digital Millennium Copyright Act. YouTube complied with this takedown request on July 7.

On July 8 Free Press responded to Newport's letter, rejecting Newport's copyright claim and its suggestion that any of the material in the video was false or misleading. Free Press further asserted that the DMCA takedown filed by Newport was without merit, constituting tortious interference with contract and a unlawful misrepresentation under the DMCA. Free Press also asserts that they have filed a DMCA counter-notice with YouTube, demanding that the video be reinstated.

The issue is still pending.

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At the Intersection of Anti-SLAPP and Anonymity

Slap! by Vermin Inc, on Flickr

Consider two cases: In Colorado, clothing company Façonnable is attempting to sue an anonymous Wikipedia editor (or, possibly, more than one; the number is sort of up in the air) over some unflattering edits to the company's Wikipedia page. But first, Façonnable has to figure out who the editors are--thus, a subpoena to the ISP allegedly attached to the editors' IP address.

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Façonnable USA Corp. v. John Does 1-10

Date: 

04/07/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Doe Wikipedia Editors & ISP Skybeam, Inc.

Type of Party: 

Large Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

U.S. District Court, District of Colorado

Case Number: 

1:11-cv-00941-CMA -BNB

Legal Counsel: 

Paul Alan Levy & Michael H. Page of the Public Citizen Litigation Group, and John Seiver of Davis Wright Tremaine LLP (for Skybeam)

Publication Medium: 

Wiki

Relevant Documents: 

Status: 

Pending

Disposition: 

Settled (total)
Withdrawn

Description: 

On April 7, 2011, clothing company Façonnable filed suit in Colorado federal court against a set of John Doe defendants.  According to the complaint, around March 1, 2011, one or more anonymous individuals edited the Wikipedia entries of Façonnable and its parent company M1 Group. The edits discussed "purported" ties between M1 and Hezbollah. (A preserved copy of the Façonnable page is included among the court documents.) The complaint alleges trade libel, violations of Colorado's Consumer Protection Act (for false representations of Façonnable's goods/activities), and federal Lanham Act violations--specifically, that the Wikipedia editors falsely described Façonnable's goods/activities, constituting "acts of infringement."

Façonnable also alleges that the IP addresses of the anonymous Wikipedia editor(s) are associated with Colorado ISP Skybeam, Inc. and that on March 4, 2011, Façonnable emailed (scroll down) Skybeam requesting the identities of the anonymous editors. Skybeam declined to provide the information without a proper summons.  In response, simultaneously with the filing of the complaint, Façonnable moved for expedited discovery to subpoena Skybeam for the editors' identities.

On April 8, 2011, the case was referred to a magistrate judge, and on April 18, the magistrate granted Façonnable's motion for expedited discovery. A few days prior, Façonnable had contacted Skybeam to request that the Wikipedia editors' identifying information be preserved. Once its motion was granted, Façonnable subpoenaed Skybeam for that information; Skybeam then responded with a letter objecting to the subpoena. On April 29 Skybeam moved for a modification of the discovery order, arguing that the magistrate judge applied too lenient a standard in granting discovery by failing to account for the editors' First Amendment anonymous speech rights. Façonnable opposed the motion.

On May 24 the magistrate judge denied Skybeam's motion. Expressing concern that Façonnable would have "no ability to vindicate its rights," the magistrate held that the subpoena was a "content neutral" oversight of online speech, and thus the subpoena satisfied a "heightened sensitivity" to the editors' First Amendment rights. The magistrate ordered Skybeam to comply with the subpoena by June 3.

On June 1, Skybeam filed objections to the magistrate's decision with the district court, and moved to stay the order to comply with the subpoena. On June 2, the district court judge granted the stay. Skybeam's memo accompanying its objection expands on the First Amendment concerns in the case (and the need for strict scrutiny in deciding whether or not to enforce the subpoena), discusses the viability of Façonnable's federal Lanham Act claims, and argues for a more stringent five-step test before revealing anonymous speakers' identities.

On June 27, Façonnable filed an unopposed motion for an extension to reply to Skybeam's objections.

Update:

On July 18th, Façonnable filed a notice of voluntary dismissal with prejudice. According to news reports and subsequent court documents, the company reached a settlement with the John Doe defendant.

On July 22, Skybeam moved to vacate the magistrate judge's order to reveal the Doe identities. Skybeam argued that, although the apparent settlement had mooted the question of the propriety of the magistrate's order, Skybeam was entitled to have the order vacated to avoid setting precedent. Skybeam's motion includes some information about the possible terms of the settlement, stating that on July 11, Façonnable offered to dismiss the case, if the John Doe's attorney "would make certain representations on behalf of the Doe . . . including that Doe was not one of the plaintiff's competitors." (The actual settlement terms have not been made public.)

On July 27, the District Court Judge granted Skybeam's motion to vacate, which was unopposed.

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Threat Source: 

Blog Post

Subject Area: 

The SLAPP-Happy Story of Rakofsky v. Internet

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

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Banned in (Much of) Britain, and Beyond?

Social media are abuzz about English Premier League footballer ("soccer player" to us Yanks) Ryan Giggs, who has obtained an order from a British court requiring Twitter to reveal the identity of various tweeters who identified him as having had an affair with model and Big Brother contestant Imogen Thomas.

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Wrink A Bull Kennels v. Jonathan & Ashley Avidan

Date: 

03/04/2011

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Jonathan & Ashley Avidan

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Blog
Website

Relevant Documents: 

Status: 

Pending

Description: 

The letter sent from Wrink a Bull Kennels is a Cease and Desist order for what she calls malicious and comments that are slander.All of the comments made on the BLOG and to the Department are accurate and supported by medical documentation.

Content Type: 

Subject Area: 

Federici v Pignotti et al

Date: 

12/17/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

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

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

Virginia Eastern District Court, Alexandria

Case Number: 

1:2010cv01418

Legal Counsel: 

Amy Owen, Kirstin Zech, Sarah Bagley

Publication Medium: 

Blog
Forum
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

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

Update:

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

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

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

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First Amendment Alert! Author arrested for writing a book

I'm the first to admit that Phillip Greaves is not the most sympathetic figure in America. Greaves wrote "The Pedophile's Guide," which was originally for sale on Amazon.com before the online retailer bowed to public pressure and pulled the book from its online shelves.

I don't necessarily have a problem with that.

But, I have a big problem with today's developments. The Orlando Sentinel reports that Polk County Sheriff Grady Judd had Mr. Greaves arrested in Pueblo, Colorado on obscenity charges.

Lets remember that Grady Judd's jurisdiction is home to meth labs, cops who diddle children, and a pretty high incest rate.

Despite the "real crime" in his jurisdiction, Judd instructed his detectives to request an autographed copy of the book. Mr. Greaves obliged and Judd used that as his justification for having Greaves indicted on obscenity charges in his little caliphate of inbred-methistan.

Greaves told ABC News last month he wasn't trying to promote pedophilia and was not himself a pedophile: "I'm not saying I want them around children, I'm saying if they're there, that's how I want them to [behave]." (source)

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FTC Flexes Blogger Rules Again

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

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

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

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Louisiana Joins Unconstitutional Cyber-Bullying Statute Club

The first rule of Unconstitutional Cyber-Bullying Statute Club is you do not talk about Unconstitutional Cyber-Bullying Statute Club.

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United States v. White (updated)

Date: 

10/21/2008

Threat Type: 

Criminal Charge

Party Receiving Legal Threat: 

William White

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of Illinois

Case Number: 

08-CR-851

Legal Counsel: 

Nishay Kumar Sanan; Chris M. Shepherd

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

The United States indicted William White, webmaster of the white-supremacy website Overthrow.com, alleging that he solicited others to harm "Juror A," the foreperson of the jury that convicted Matt Hale, another white supremacist, of soliciting the murder of a federal judge in 2003.

The indictment alleged that White targeted Juror A in an article posted to the Overthrow.com front page entitled "The Juror Who Convicted Matt Hale."  The post allegedly read:

"Gay anti-racist [Juror A] was a juror who played a key role in convicting Matt Hale.  Born [date], [he/she] lives at [address] with [his/her] gay black lover and [his/her] cat [name]. [His/Her] phone number is [phone number]. . . ."

The government argued that White was "aware that individuals associated with the white supremacist movement, who were the target audience of 'Overthrow.com,' at times engaged in acts of violence directed at non-whites, Jews, homosexuals, and persons perceived by white supremacists as acting contrary to the interests of the white race."  (Indictment ¶ 5a.)  In order to corroborate the claim that White intended the post to incite violence against Juror A, the indictment also references previous posts by White in which he published the addresses of other white supremacist "targets," often with commentary enticing his readers to kill or otherwise harm these individuals.  (Indictment ¶¶ 5b-5e.)

A superseding indictment, filed on February 10, 2009, included more examples of previous Overthrow.com posts that advocated violence against white supremacist "targets."  White moved to dismiss both indictments, claiming that his article represented protected speech under the First Amendment and did not constitute a true threat.  Claiming bias, White also moved for recusal of all judges from the Northern District of Illinois.  Since this motion was unopposed, Judge Hibbler recused himself and was replaced by Judge Lynn Adelman of the Eastern District of Wisconsin.

In her July 21, 2009 order, Judge Adelman granted White's motion to dismiss, finding that his speech was protected under the First Amendment.  Specifically, she noted that the posts "do not expressly solicit or endeavor to persuade another person to harm Juror A. . . . nowhere in them does defendant expressly advocate that Juror A be harmed."  Analyzing prior case law, she goes on to state that "the cases relating to disclosure of personal information, even under threatening or intimidating circumstances, uniformly support the proposition that defendant's speech is protected."

The government has appealed the decision to the Seventh Circuit Court of Appeals.

UPDATE:

On June 28, 2010 the Court of Appeals for the Seventh Circuit reversed the dismissal of an indictment against White, finding that the indictment was legally sufficient and the First Amendment issue is properly addressed by the requirement of proof beyond a reasonable doubt at trial, not by a dismissal of the indictment.

Since criminal solicitation is an inchoate crime, the act of asking another to commit a crime is the punishable act. The crime is complete once the words are spoken with the required intent. Whether the First Amendment protects White's right to post personal information turns on his intent in posting that information. If the intent was to request someone to harm the juror, then the crime of solicitation is complete. The Court of Appeals ruled that this is an inquiry into the facts and the inferences that may be drawn from the facts regarding White's intent, and is a question for the jury.

Jurisdiction: 

CMLP Notes: 

08/04/2009 - LB editing

Priority: 

1-High

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Citizen Media Law Project, EFF, and Public Citizen Advocate First Amendment Scrutiny in Hot News Cases

The Citizen Media Law Project, EFF, and Public Citizen have jointly submitted an amicus curiae b

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Seventh Circuit Vacates Contempt for E-Mail Barrage

The Seventh Circuit Court of Appeals has vacated the summary contempt citation and sentence imposed by U.S. District Judge Robert Gettleman after his court e-mail account was inundated with messages after infomercial pitchman Kevin Trudeau urged his supporters to e-mail the judge. FTC v. Trudeau, No. 10-1383, slip op. (7th Cir. May 20, 2010).

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Theriot v. Does

Date: 

05/07/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Does 1-100

Type of Party: 

Individual
Government

Type of Party: 

Individual

Court Type: 

State

Court Name: 

24th Judicial District Court for the Parish of Jefferson

Case Number: 

687.191

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

On May 7, 2010, the Parish of Jefferson in Louisiana and its interim President, Steve Theriot, filed a lawsuit in state court against unnamed Does for defamation.  According to the Complaint, the Does "systematically published messages on the Internet using the forums and blogs on Nola.com and Slabbed.wordpress.com," which comments were allegedly defamatory.  (Complaint ¶ 5)  The Complaint alleges that the defamatory material included statements "that members of Jefferson Parish Government such as Mr. Theriot are unethical and deceitful." (Complaint ¶ 6)  The Complaint seeks "[d]amages for embarrassment and emotional suffering[; . . . d]amages for loss of personal reputation; [. . . and d]amages for loss of business opportunity," as well as costs and attorneys' fees.

The same day the Complaint was filed, Plaintiffs issued a subpoena to New Orleans Net LLC, the operator of the Nola.com website, seeking the identities of the posters using 11 Nola.com screen names.

UPDATE: According to news reports, Theriot has dismissed the lawsuit.

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Threat Source: 

RSS

Subject Area: 

FTC Endorsement Rules Get Their First Workout

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

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Right for the Wrong Reasons: DC Court of Appeals Vacates 30-Year Computer Ban

Cyanide and Happiness, a daily webcomicIt is hard to know how to feel when a court does the right thing for the wrong reasons.  On April 2, in United States v. Russell, the D.C. Court of Appeals vacated an immutable 30-year computer and Internet ban as a condition for the supervised release of a sex offender.

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