Prior Restraints

Web Restrictions Not The Answer to Juror Online Research

Juror use of the Internet to do research or communicate about trials is a growing and persistent problem. So, what can a judge do? For several years now courts have been giving jurors more detailed admonitions and jury instructions against educating themselves about cases online, to little effect.

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Cash Cutoff for Mugshot Sites A Dangerous Idea

If you're arrested, your arrest is public information: your name, your address, what you're accused of. Many news organizations publish this information on a daily basis for their communities, as part of their news coverage.

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Ellis v. Chan

Date: 

02/13/2013

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Matthew Chan

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Georgia Superior Court for the County of Muscogee

Case Number: 

5413dm409 (Superior Court); A14A0014 (Court of Appeals)

Legal Counsel: 

Oscar Michelen (Cuomo LLC); William J. McKenney (McKenney & Froelich)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued

Description: 

Linda Ellis is the author the motivational poem "the Dash" and actively enforces her copyright to this poem. Matthew Chan runs the Extortion Letter Info website (ELI), featuring a message board often used for exposing alleged copyright trolls and "extortion letter schemes." An individual who claimed to have received a copyright infringement notice and settlement offer from Ellis contributed to a discussion on ELI in 2012. This discussion developed into insults, accusations of copyright trolling and extortion, and other comments that Ellis interpreted as threats to her safety.

On February 13, 2013, Ellis filed a petition for a "stalking temporary protective order" with the Georgia Superior Court, asserting that she was "in reasonable fear of her safety." Ellis alleged that Chan posted threats of death such as "we are coming after you," along with personal information such as her home address. In this petition, Ellis requested that Chan be restrained from any acts that harass or intimidate her or her family and approaching within 1000 yards of her.

Chan presented a memo in opposition to Ellis's petition for an order of protection at the hearing on February 27. In it, he argued that the charges brought by Ellis were inappropriate under the OCGA §§ 16-5-90(a) and 94(d) and the elements of this charge of stalking could not be satisfied. Chan argued that a protective order for stalking was inappropriate as Ellis failed to prove by a preponderance of the evidence "that [Chan's] actions ... placed [Ellis] in reasonable fear for [her] safety by establishing a pattern of harassing and intimidating behavior." Chan also argued that Ellis failed to satisfy every element of the statute, such as contact and the purpose of harassment and intimidation. Chan did not contact Ellis directly, and did not follow or place her under surveillance. Further, Chan argued that his online speech, including the posting of Ellis's home address, was protected by the First Amendment. Lastly, as penalty for allegedly abusing the court system, Chan moved for sanctions against Ellis for filing a petition without substantial justification pursuant to OCGA § 9-15-14.

After the hearing, the Superior Court of Muscogee County issued a broad permanent protective order on March 4, 2013, with a cover sheet entitled "Domestic Relations Case Final Disposition Information Form." In the order, Judge Frank Jordan held that Chan "placed [Ellis] in reasonable fear for [Ellis's] safety" by contacting Ellis and posting her personal information in order to harass and intimidate her. Judge Jordan also emphasized Chan's ability to remove posts as the moderator and his decision not to remove those directed at Ellis. Judge Jordan permanently ordered Chan to remove all posts related to Ellis and to stay 1,000 feet away from her. Chan was also ordered to refrain from "contact of any type, direct, indirect, or through another person, . . . including but not limited to: telephone, fax, email, voicemail, mail, texting, spoofing, Facebook and other forms of social media."

On March 27, Chan filed a notice for appeal to the Court of Appeals of Georgia. Due to delays in production of the transcript from the case, Chan requested multiple extensions of time to file the transcript; his third application for an extension of time to file the transcript was granted on June 28, 2013.

UPDATES:

October 1, 2013: Chan filed his appellant's brief with the Court of Appeals, alleging that the trial court made four reversible errors.

First, Chan argued that the facts alleged cannot meet the elements of the charge of stalking, because publicly posting comments about Ellis online was not contacting her within the meaning of the statute, and that even if posting comments could constitute contact, he did not post his comments "for the purpose of harassing or intimidating" her. Second, Chan argued that he was deprived of due process because the court found him guilty of violating a statute (OCGA §§ 16-5-90(a)(2), relating to stalking in violation of a court order) that he had not been charged with violating. Third, Chan argued that the court improperly admitted an ex-parte affidavit containing "inflammatory, unsupported allegations." Finally, Chan claimed that his speech was protected under the First Amendment, the Georgia Constitution, and the Communications Decency Act.

Specifically, he contended that his speech could not constitute incitement to lawless action. Instead, he claimed, it was political speech, "a call to ‘rally the troops' to use public information about Appellee to show her hypocrisy vis-a-vis the theme of her poem." Chan further argued that the trial court's order violated the Georgia Constitution, because "Georgia courts have held that the State Constitution provides even broader protection of speech than the First Amendment to the United States Constitution." Chan also asserted that many of the allegedly threating posts were posted by other parties, and, as a provider of an interactive computer service, he cannot be treated as the publisher or speaker of those posts under Section 230 of the Communications Decency Act.

Chan further argued that the court's order was overbroad, unduly burdensome, and exceeded the relief demanded by Appellee, because it "did not just require the Appellant to remove the few offending posts that Appellee placed in the record; it forced Appellant to remove all 1,900 posts . . . related to Appellee and her business practices and it forced him to do so forever."

October 21, 2013: Ellis filed her appellee's brief, arguing that the elements of Georgia's stalking law were met, that Chan received proper notice of the charges he faced, and that, with respect to the alledegly inadmissible affidavit, Chan failed to object to the on hearsay grounds, much the affidavit was admissible, and any error was harmless.

Additionally, Ellis argued that the First Amendment provides Chan no protection, because his speech was a true threat-speech that was "intend[ed]" to put her "in fear of bodily harm or death." Even if Chan's speech was protected, Ellis contended that the trial court's order was narrowly tailored "because it is reasonably limited and allows other forms of communication." Ellis claimed that the permanent injunction is a content neutral time, place, and manner restriction subject to intermediate scrutiny because it merely "limits the place for speech, namely the Internet," leaving "open other channels of communication."

Finally, Ellis argued that the CDA does not protect Chan from responsibility for content posted by other users on his website. Relying on Jones v. Dirty World Entertainment Recordings, LLC, 840 F. Supp. 2d 1008 (E.D. Ky. 2012), Ellis urged the court to find that Chan does not qualify for CDA protection because he "posts offensive content, comments, and encourages others to do so by responding to pending forum posts." This conduct, Ellis contended, makes Chan "more than a mere spectator on the ELI website, he is the ringleader."

 

October 30, 2013: Timothy B. McCormack of McCormack Intellectual Property Law Business Law P.S. submitted an amicus curiae brief in support of Ellis. McCormack argued that the First Amendment does not protect Chan because his speech was a true threat, and that the CDA's safe harbor protection does not apply because he participated in and encouraged harassing speech. He further argued "for a bright line rule" that Internet harassment is illegal, regardless of physical proximity," and highlights the negative consequences of Internet bullying.

November 1, 2013: Chan filed a motion requesting leave to file a supplemental reply brief in response to McCormack's brief.

As of November 5, 2013, the case has not been scheduled for argument.

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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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Aghast at Ag-Gag Legislation: Silencing Speech for What it Reveals

Ag-gag cowWith the ubiquity of smart phones and digital communication, most of us whisk our phones out to record anything we find significant without giving it a second thought. But when one Utah woman did this in early February, she was charged as a criminal -- solely because the activities she recorded took place on agricultural land.

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The Journal News Fallout: Limiting the First Amendment to Protect the Second

Dietz Development LLC v. Perez

Date: 

10/31/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Jane Perez

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Fairfax County Circuit Court, Virginia

Case Number: 

2012-16249

Legal Counsel: 

James T. Bacon, Allred, Bacon, Halfhill & Young P.C.; Rebecca Glenberg, ACLU of Virginia; Paul Alan Levy, Public Citizen Litigation Group

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued

Description: 

Dietz Development is a construction contractor based in Washington, DC. According to the complaint, Jane Perez, a high school classmate of Dietz Development owner Christopher Dietz, hired Dietz Development to do work on Perez's home. Disagreements arose over the nature of the work, which resulted in a lawsuit over unpaid invoices in July 2011. The lawsuit was dismissed after Dietz failed to timely file a bill of particulars (a more specified factual statement following a complaint) under Virginia court rules.

According to the complaint, on January 31, 2012, Perez posted a critical review of Dietz Development on Angie's List, including the following statements:

  •  "Dietz Development LLC was to perform: painting, refinish floors, electrical, plumbing and handyman work. I was instead left with damage to my home and work that had to be reaccomplished for thousands more than originally estimated."
  • "My home was damaged; the 'work' had to be re-accomplished;"
  • "I won on summary judgment (meaning that the case had no merit)."
  • "he invoiced me for work not even performed and also sued me for work not even performed"
  • "This is after filing my first ever police report when I found my jewelry missing and Dietz was the only one with a key."

Perez also posted substantially similar material on Yelp.com on February 6, 2012. On May 11, 2012, Perez filed similar statements with the Virginia Department of Professional and Occupational Regulation (DPOR).

On August 13, 2012, Perez posted further statements on Yelp.com regarding Dietz Development, including that the company "is not legitimate in lacking BBB Accreditation." On August 27, 2012, Perez posted again on Yelp.com, stating that Dietz had received sanctions from the DPOR and that "the Consumer Protection Agency and the Office of the Attorney General are also good sources who stated that Dietz has been sued by another client for 'unfinished work'."

Dietz Development filed a complaint in the Fairfax County Circuit Court in Virginia on October 31, 2012, alleging defamation based on the statements above and seeking $750,000 in damages and an injunction removing the statements from these websites and preventing Perez from making similar statements in the future. Dietz denies all of the statements made above, and claims that (1) the invoices and lawsuit focused only on work that had been completed, (2) that he had returned the key immediately following termination of their relationship, (3) the Better Business Bureau has given Dietz Development an A+ ranking, (4) no sanctions were imposed by the DPOR, and (5) that Dietz has not been sued by other clients. 

Also on October 31, 2012, Dietz filed a motion for preliminary injucntion, arguing that an injunction should be issued here because the statements are defamatory per se, Dietz Development cannot "direct marketing at those who see" the material posted by Perez, and this information will cause the plaintiffs future monetary harm. Dietz conceded that "this would to a small extent reduce [Perez's] freedom of expression until there is a final hearing," but argued that Perez "has no financial interest in this speech, and she would not be prevented from pursuing any work opportunity or ongoing business concern." Dietz argued that an injunction favors the public interest because "[t]he public interest is met in the preservation of truthful communications and presentation of accurate information in making consumer choices."

Perez filed an answer on November 19, 2012. On December 4, 2012,  Perez filed an opposition to the preliminary injunction. The opposition claimed that the suit filed against Perez is a "SLAPP" suit, and argued that an injunction should not be issued because the reviews are currently not accessible to a usual web search (because Perez removed the Yelp review and the Angie's List review is only viewable behind a paywall), issuing an injunction would harm Perez's right to free speech, and the statements are either true or published without the requisite degree of fault. Perez also stated that she intended to introduce evidence showing that Dietz was investigated and sanctioned by the DPOR, and that lawsuits and Attorney General investigations had been filed in the District of Columbia against Dietz Development.

On December 5, 2012, the court issued a brief order granting the preliminary injunction in part. The court ordered:

(1.) The Defendant shall remove any post that refers to the "loss of jewelry;" and

(2.) The Defendant shall modify any post that refers to "...'Summary Judgment' (meaning that the case had no merit)" to "...'Summary Judgment' (meaning the case was dismissed with prejudice in my favor)"; and

(3.) For any future publication, the Defendants shall comply with paragraphs (1) and (2) above. 

Update:

On December 17, 2012, Perez filed a motion for reconsideration of the preliminary injunction, arguing that such an injunction constitutes a prior restraint.

On December 26, 2012, while the motion for reconsideration was pending, Perez filed a petition for review with the Supreme Court of Virginia under Virginia Code § 8.01-626. The petition argues that the injunction was an impermissible prior restraint, and violated principles of equity because injuries due to libel are considered to have an adequate remedy in monetary damages.

On December 28, 2012, the Supreme Court of Virginia issued a summary reversal of the injunction, finding both that the injunction failed to state the duration of the injunction under Virginia Code § 8.01-624, and that "the Preliminary Injunction was not justified and that the respondents have an adequate remedy at law."

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CMLP Notes: 

AFS did first draft 12/14/12 first update 12/17/12 and second update 1/2/13

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Ballot Disclosure Laws: A First Amendment Anomaly

Today, the Digital Media Law Project is launching a new guide to photography and filming at this year’s presidential election, Documenting the Vote 2012. This resource provides a wide range of information for all fifty states plus the District of Columbia, regarding laws that restrict the use of cameras in and around polling places (as well as other journalistic activities).

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DOJ's Public Statements Provide a Road Map for Citizens to Sue in Cop Recording Cases

Qualified immunity for police might be a thing of the past

In May 2010, Christopher Sharp used his cell phone to record video of his friend being arrested by the Baltimore Police at the Preakness Stakes. The police demanded that Sharp surrender his phone, stating that the contents might be evidence; when the phone was returned, Sharp discovered that the video he had made, plus a number of other unrelated videos, had been deleted.

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Suffolk County Police Department v. Datz

Date: 

07/29/2011

Threat Type: 

Police Activity

Party Receiving Legal Threat: 

Philip Datz

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court, Eastern District of New York

Legal Counsel: 

Robert Balin, Samuel Bayard, and Alison Schary, Davis Wright Tremaine LLP; Corey Stoughton, New York Civil Liberties Union; Mickey Osterreicher, National Press Photographers Association (Of Counsel)

Publication Medium: 

Broadcast

Relevant Documents: 

Status: 

Pending

Description: 

According to CBS, on July 29, 2011, Philip Datz ("Datz") was in Bohemia, New York filming police activity following a car chase as a videographer for the Stringer News Service. During the course of his filming, Suffolk County Police Sergeant Michael Milton ("Milton") approached and ordered him to leave. Datz moved approximately a block from where he was initially located and continued to film the police activity. Milton approached Datz a second time, arrested him, and seized his camera and videotape. (Datz's recording of the encounter can be viewed here.)

Datz was charged with obstructing governmental administration, N.Y. Penal Law § 195.05. The charge was later dismissed.

On April 11, 2012, Datz filed a lawsuit in the United States District Court in the Eastern District of New York against Milton and Suffolk County, alleging that the police violated Datz's rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution, Article I, Sections 8 and 12 of the New York State Constitution, as well as the Privacy Protection Act (42 U.S.C. § 2000aa). The complaint also contains claims of false arrest, assault, and battery. According to the complaint, Suffolk County Police seized the videotape from his camera as evidence and held it until one hour after his release that evening.

The complaint also makes several allegations  in support for its demand for injunctive relief against Suffolk County barring the county from obstructing journalists and members of the public who are recording police activity in public places. These allegations include several other incidents where Suffolk County police and firemen ordered Datz to stop filming police activity from public property, and some instances the police deliberately expanded crime scene perimeters to keep the press from filming crime scenes. 

Sergeant Michael Milton answered the complaint on May 2, 2012.

The case is currently in discovery. As of February 2014, dispositive motions are due March 24, 2014.

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CMLP ANNOUNCEMENT: Mass. SJC Rejects Prior Restraints and Supports Right to Stream and Archive Court Proceedings Online

The following is cross-posted with permission from our good friends at the Cyberlaw Clinic at Harvard Law School. The original post can be found here

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Won't Somebody Please Think of the Children?: A Few Modest Thoughts on Mass. Senate Bill No. 785

On February 7, 2012, the Joint Committee on the Judiciary of the Massachusetts Legislature will hold a hearing on Massachusetts Senate Bill No.

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United States v. Puerto 80 Projects, S.L.U.

Threat Type: 

Police Activity

Date: 

01/31/2011

Party Receiving Legal Threat: 

Puerto 80 Projects, S.L.U.

Type of Party: 

Government

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court, Southern District of New York

Case Number: 

11-cv-3983

Legal Counsel: 

Durie Tangri LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Puerto 80 is a solely-owned limited liability company based in Arteixo, Spain. The company operates a website entitled Roja Directa, which provides a chronological listing of sporting events with links to websites that are streaming live broadcasts of those events over the Internet. The website also operates a series of message boards and a small blog.

On January 31, 2011, an agent with the United States Department of Homeland Security, Immigration and Customs Enforcement division, filed an affidavit for a warrant to seize several domain names, including rojadirecta.org and rojadirecta.com. Using a recently-modified civil forfeiture law passed in 2008, the agent alleged that these domain names were property used for the commission of criminal copyright infringement, and thus subject to seizure. According to the United States, Roja Directa linked to websites streaming sporting events, the copyrights of which are owned by the NFL, NBA, NHL, and WWE. These organizations did not license the webcasts. This seizure was part of a larger IP enforcement campaign called Operation in Our Sites, which began in June of 2010 and continues today.

A federal magistrate judge issued a warrant for the seizure of the domain names. This order applied specifically to the URLs only, and not the servers which contain the Roja Directa website. The warrant ordered the domain name registries for the ".com" and ".org" top level domains, as well as Puerto 80's registrar for "rojadirecta.com" and "rojadirecta.org," to transfer ownership of the domain name to the United States, who then displayed a page informing the public that the domain name had been seized.

According to Puerto 80, the company attempted to negotiate with the United States for the return of the domain names, but reached no agreement. On June 13, 2011, Puerto 80 filed a petition for release of its seized property pursuant to 18 U.S.C.§ 983(f) in the United States District Court for the Southern District of New York. Puerto 80 argued that linking to other websites does not constitute criminal copyright infringement, there is no risk that evidence will be unavailable should the government decide to initiate a forfeiture proceeding, and the restriction of the expressive content of the website before an adjudication of whether the content was infringing was a prior restraint of speech. The United States filed a memorandum in opposition, arguing that the actions of Puerto 80 constituted criminal copyright infringement, to release the domain name would allow continuation of that infringement, and the domain name seizure was not a prior restraint because Roja Directa was able to move the websites to new domains housed outside of the United States.

On August 4, 2011 the district court denied Puerto 80's petition for release.The court did not find the hardship necessary for a § 983(f) dismissal, and suggested that the First Amendment arguments were best left to a motion to dismiss against the forfeiture complaint. Puerto 80 filed an appeal to the United States Court of Appeals for the Second Circuit on August 18, 2011, and shortly thereafter filed a motion for expedited appeal, which the Second Circuit granted.

Puerto 80 filed its opening brief to the Second Circuit on September 16, 2011. The United States filed a response brief on November 15, 2011. The court also accepted an amicus curiae brief from the Electronic Frontier Foundation, filed on November 22, 2011.

Puerto 80's reply brief to the government's response is due on December 6, 2011, with argument before the Second Circuit slated for the week of December 19th.

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Bigfoot Spotted Fighting for Free Speech at the New Hampshire Supreme Court

Back in March, I wrote a snippet about a guy who brought suit against the State of New Hampshire for its burdensome permit requirements for filming in Monadnock State Park. See Plaintiff's motion for summary judgment.

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Bay Area Rapid Transit v. Protesters

Threat Type: 

Police Activity

Date: 

08/11/2011

Party Receiving Legal Threat: 

No Justice No Bart, Anonymous, other protesters

Type of Party: 

Government

Type of Party: 

Organization

Publication Medium: 

Email
Forum
Social Network
Verbal

Status: 

Pending

Description: 

According to SF Weekly, on July 3, 2011, a homeless man named Charles Hill was shot to death by police officers for the San Francisco Bay Area Rapid Transit District ("BART"). Two and a half years earlier, BART police used lethal force against 22-year old Oscar Grant. Both cases have lead activist groups to stage protests against BART and its police force.

On July 11, 2011, protesters with No Justice, No BART  and other organizations staged a protest in the Civic Center Station, where Hill was shot. According to SF Gate, approximately 100 protesters attended and some blocked the doors of trains, leading BART to temporarily close the station.

According to a BART press release, BART and San Francisco police officers learned of a further protest planned for August 11, 2011 early in the week of August 8th. They believed that protesters were planning to coordinate protests at the station using cell phones, and in an attempt to disrupt that coordination shut down cellular service to specific stations in the BART system. According to Scientific American, BART did this by disabling power to the cell phone and wireless network base stations it owned in the underground system. According to CBS San Francisco, the August 11th protest never materialized.

According to Mashable, web activist group Anonymous responded to BART's closure of cellular service by shutting down the consumer-relations website mybart.org on August 14, 2011, leading to the website's indefinite suspension. Anonymous also organized further protests on August 15, 2011, leading to additional station closures, though no reported cell phone service disruption.

The Bay Citizen reports that the FCC is investigating BART's decision to disable cell phone service in the stations. On August 29, 2011, a group of public interest organizations led by Public Knowledge filed a petition for declaratory ruling to the FCC, arguing that BART's actions violated the Communications Act of 1934.

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BART Phone Blackout: Did the S.F. Transit Agency Violate Free Speech Protections? Part 2

This is the second half of an analysis of the free speech issues implicated by the Bay Area Rapid Transit (BART)'s shutdown of mobile phone service on Aug. 11 in order to prevent scheduled protests.  The first part of the blog is available here.

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