Prior Restraints

Subject Area: 

New Hampshire Court Tramples on Constitution, Reporter's Privilege, Section 230, What Have You

A reader recently tipped us off to a troubling ruling from a trial court in New Hampshire: The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., No. 08-E-0572 (N.H. Super. Ct. Mar.

Jurisdiction: 

Subject Area: 

Monex Deposit Co. v. Gilliam

Date: 

03/04/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Richard Gilliam; Jason Gilliam; Steven Bowman

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Central District of California; Superior Court of California, County of Orange

Case Number: 

8:09-cv-00287-JVS-RNB (federal); 30-2009, 00249439 (state)

Legal Counsel: 

Jason Gilliam - Pro Se

Publication Medium: 

Forum
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued
Material Removed

Description: 

On March 4, 2009, Monex Deposit Company and Monex Credit Company (collectively "Monex"), two companies in the precious metals business, filed a lawsuit suit against Jason Gilliam, Richard Gilliam, and Steven Bowman for publishing allegedly defamatory statements on the website MonexFRAUD.com and attempting to extort money from Monex.  Monex initially sued in California state court, but the Gilliams removed the case to federal court.

In its complaint, Monex claims that the Gilliams and Bowman threatened to "continue to libel Monex on their website, . . . share information with government regulators, and . . . interfere with Monex's relationships with investors and banks" unless the company paid them $15 million dollars.  According the complaint, the defendants called Monex's president a "ruthless sociopath" and the firm's sales pitch "flat-out lies," in addition to other comments.  Monex alleges that the defendants made these false statements on MonexFRAUD.com and in comments posted on other websites, including YouTube and Digg.

In addition to defamation and extortion, Monex's complaint alleges cyberpiracy, unfair competition, racketeering, interference with contract, attempted conversion, trade libel, interference with prospective economic advantage, and trade secret misappropriation. The Gilliams, father and son, allegedly lost approximately $32,000 with Monex.  On March 16, Jason Gilliam filed counter claims against Monex, including racketeering and breach of fiduciary duties.

On March 24, 2009, a federal court in California granted Monex's request for a temporary restraining order against the Gilliams and Bowman, expiring on April 7, 2009. The temporary restraining order prohibits them from taking any steps to extort money from Monex by (1) threatening to publish information about Monex on any forum or share information about Monex with third parties, or (2) threatening to defame Monex or its employees.  The order also barred them from retaining, disclosing, or using any Monex trade secret or proprietary information. 

The court also ordered the Gilliams and Bowman to show cause why a preliminary injunction should not issue, continuing the terms of the temporary restraining order until judgment or dismissal.  If granted, the preliminary injunction would also bar the defendants from "publishing or republishing any negative statements about Monex on any website" and require them to "remove, from any website over which they have sufficient control, all negative material about Monex that they have published or republished there, and to stop using the word MonexFRAUD."  It would also bar them from operating the MonexFRAUD website or any "other websites critical of Monex."  

Update:

04/09/09 -The court issued a preliminary injunction, prohibiting the defendants from (1) making any efforts to extort money from Monex by threatening to publish or share information about Monex or defame Monex or its employees; (2) operating www.MonexFRAUD.com or any other website using the Monex name in combination with any modifier that implies illegal, unlawful or unethical conduct; (3) publishing or republishing on any website, including www.MonexFRAUD.com, any statement that "Monex does not have title to or the ability to deliver precious metals sold under contract to any Monex customer; that Monex was expelled from the National Futures Association for fraud; that Monex operates a boiler room; that Monex violates any federal or state statutes regulating the business operations of Monex; that Monex has been charged by the Internal Revenue Service with tax evasion; and that Monex fails to accurately disclose to customers account and trading terms (collectively "Prohibited Statements"); (4) disclosing, using, or retaining any trade secret documentation or other proprietary information belonging to Monex.  The injunction also requires the defendants to remove all previously published Prohibited Statements within 24 hours.  It does not prohibit the defendants from (a) making statements regarding their own business dealings with Monex, including losses they have sustained; or (b) communicating with any governmental entity concerning matters within the scope of that entity's legislative, administrative, or regulatory responsibilities.

05/07/2009- Monex filed an amended complaint in district court. 

Jurisdiction: 

CMLP Notes: 

Source: OCRegister.com

UPDATED 7/24/09- AVM added information on amended complaint and uploaded am. compl.

 

Priority: 

1-High

Content Type: 

Subject Area: 

The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc.

Date: 

11/12/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Implode Explode Heavy Industries, Inc.

Type of Party: 

Organization

Type of Party: 

Organization

Court Type: 

State

Court Name: 

Rockingham County Superior Court, New Hampshire

Case Number: 

08-E-572

Legal Counsel: 

William L. Chapman, Jeremy D. Eggleton - Orr & Reno, PA

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued
Material Removed

Description: 

The following is a user-submitted description:

Mortgage lender Mortgage Specialists filed a petition for injunctive relief against Implode-Explode Heavy Industries, a website that reports and publishes stories concerning the US housing-finance sector.  In one story, Implode Explode covered Mortgage Specialists, a New Hampshire corporation.  As part of the story, Implode Explode posted a .pdf copy of a document it received from an anonymous source, detailing Mortgage Specialists' loan volume in recent years.  Mortgage Specialists sued Implode Explode seeking an order compelling Implode Explode to refrain from posting the document, to disclose the identity of the source of the document, to produce all other documents obtained from the same source, and to disclose the identity of an anonymous poster who commented on the article about Mortgage Specialists and allegedly made defamatory statements.

The trial court rejected Implode Explode's arguments on personal jurisdiction and on the merits, granting all of Mortgage Specialists' requests for relief.  Implode Explode has a filed a motion to stay the injunctive order pending appeal to the New Hampshire Supreme Court.  Questions on appeal would involve: the right to publish under the New York Times standard; the protection of sources under the New Hampshire qualified reporter's privilege; the application of the test for injunctive relief where the petitioner's claims are against a third party and not the respondent; and the application of the Dendrite Test to the compelled disclosure of anonymous posters on websites.

Update:

4/7/09 - Implode-Explode Heavy Industries, Inc. filed a notice of appeal from Justice McHugh's order.

4/14/2009 - Justice McHugh stayed most of his order pending pending appeal.

6/22/2009 - Citizen Media Law Project and Reporters Committee for Freedom of the Press submitted amicus brief in N.H. Supreme Court. ML-Implode filed its appellant's brief.

7/22/2009 - Mortgage Specialists filed its appellee's brief.

8/6/2009 - Implode-Explode filed its reply brief.

Jurisdiction: 

Priority: 

1-High

Content Type: 

Threat Source: 

User Submission Form

Subject Area: 

Mitan v. Davis

Date: 

02/20/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Emory Davis; Carol Davis; Vitramax Group, Inc.; Ronald Rash; Achim Neumann; Dwight McNeil; Craig Cullinane; Linda Cullinane; Thomas F. Cullinane, Jr.

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Western District of Kentucky

Case Number: 

3:08-CV-117-S

Legal Counsel: 

J. Fox DeMoisey and Jonathan E. Breitenstein - DeMoisey Law Office, PLLC (for Emory M. Davis, Carol C. Davis, and Vitramax Group, Inc.); Sandra Finley Keene (for Ronald Rash); Louis Barbone - Jacobs & Barbone (for Linda, Thomas & Craig Cullinane)

Publication Medium: 

Print
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

On February 20th, 2008, the Mitans filed a lawsuit in U.S. District Court for the Western District of Kentucky against eight individuals located throughout the U.S. and Vitramax Group, Inc., alleging libel and slander.  The Mitans' complaint claims that Emory and Carol Davis created a website called the "Mitan Alert" in October of 1999, and that a U.S. Bankruptcy Court previously found the website to be defamatory and ordered them "to cease and desist publication of the website, to remove it from viewing on the Internet, and never to publish the website again." 

The complaint further alleges that the Davises sent printed pages of the website to the other defendants via fascimile, and that the other defendants then transmitted those printed pages to third parties.  The Mitans do not identify any specific allegedly defamatory statements, but allege that the web pages "tend to prejudice [them] in their trade, calling and/or profession since the information damages [their] reputation for honesty, integrity, and morality."

Ronald Rash, Achim Neumann, Craig Cullinane, Linda Cullinane, and Thomas F. Cullinane, Jr., submitted motions to dismiss the complaint based on lack of personal jurisdiction. The Cullinanes also argued that section 230 of the Communications Decency Act barred the claims against them because the Mitans only alleged that they "received, faxed or discussed or discussed the content of a website that [they] did not author, edit or create."

The court granted the motions to dismiss for lack of personal jurisdiction, finding that Rash, Neumann, and the Cullinanes did not have sufficient minimum contacts with Kentucky.  The court rejected the Mitans' argument that receiving information from Kentucky was sufficient to confer jurisdiction.  The court did not reach the Cullinanes' section 230 argument.

The case is ongoing against Carol and Emory Davis and Vitramax. They filed an answer and counterclaims alleging abuse of process in June 2008.

CMLP Notes: 

The complaint notes that "Mitan Alert" previously was found to be defamatory in U.S. Bankruptcy Court.  Whoever edits this entry should hunt down that case and add it as an additional threat entry.  {MCS}

 

RP--I have a ton of docs to up load next week.

Mitan
v. Davis
Slip
Copy, 2008 WL 5233188
W.D.Ky.,2008.
December 15, 2008 (Approx. 1 page)

In re
Davis
347 B.R.
607
W.D.Ky.,2006.
August 14, 2006 (Approx. 10 pages)

In re
Davis
334 B.R.
874
Bkrtcy.W.D.Ky.,2005.
December 07, 2005 (Approx. 20
pages)

Mitan
v. Davis
243
F.Supp.2d 719
W.D.Ky.,2003.
February 03, 2003 (Approx. 5 pages)

In re
Emory M DAVIS, Carol C Davis, Debtor(s).
2003 WL
25759801
United
States Bankruptcy Court, W.D. Kentucky.
Trial Filing (Approx. 2 pages)

In re
Mitan
178
Fed.Appx. 503
C.A.6 (Mich.),2006.
April 27, 2006 (Approx. 6
pages)

In re
Mitan
371 B.R.
244
E.D.Mich.,2007.
June 04, 2007 (Approx. 5 pages)

U.S.
v. Mitan
Slip
Copy, 2009 WL 604695
E.D.Pa.,2009.
March 06, 2009 (Approx. 10 pages)

 

Priority: 

1-High

Content Type: 

Threat Source: 

Westlaw Alert

Subject Area: 

Jurisdiction: 

Sienna/Johnson Development v. Calvin

Date: 

12/13/2005

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Chris Calvin; Committee for Responsible Development

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Fort Bend County District Court (TX)

Case Number: 

05-DCV-146667

Legal Counsel: 

John Keville - Lee Keller King

Publication Medium: 

Forum

Status: 

Concluded

Disposition: 

Injunction Issued
Settled (total)

Description: 

In December 2005, Texas real estate developer Sienna/Johnson Development and its senior vice president Douglas Goff sued Chris Calvin and the Committee for Responsible Development (an organization co-chaired by Calvin).  Sienna and Goff alleged that Calvin posted critical comments about them on three community websites and used multiple pseudonyms to create a false impression of widespread community opposition to the developer's plans to build apartments near his home.  The complaint, filed in Texas state court, included claims for defamation, business disparagement, public nuisance, and tortuous interference with prospective contract.

In December 2006, the parties settled the case. As part of the settlement, they jointly moved the court to enter an "Agreed Permanent Injunction," which prohibited Calvin and his wife Amy from posting anonymous or pseudonymous statements about Goff, Sienna, or any of their partners, affiliates, directors, officers, or employees.  The agreed injunction specifically excluded "truthful critical statements" made in the Calvins' own names.  The court issued the agreed injunction and dismissed the case.

Jurisdiction: 

CMLP Notes: 

Docket available via search at http://tylerpaw.co.fort-bend.tx.us/default.aspx.  There's also a suit involving the same parties (07-CV-154927) listed as an "Accounts, Contracts, and Notes" case.  Presumably it's something tangental to the original suit -- nonpayment of some award or somesuch -- but worth checking out to make sure.

Source: Houston Chronicle 

Priority: 

1-High

Content Type: 

Subject Area: 

Pressler v. Mills (Lawsuit)

Date: 

01/30/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Scott J. Mills; CAIPNJ a/k/a CAIPNJ.org; CAIPNJRadio

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Superior Court of New Jersey, Chancery Division, Bergen County

Case Number: 

BER-C-40-09

Legal Counsel: 

Pro se

Publication Medium: 

Blog
Broadcast

Relevant Documents: 

Status: 

Pending

Description: 

Sheldon H. Pressler, a principal of the law firm Pressler & Pressler LLP, sued Scott Mills, publisher of the CAIPNJ blog, for defamation in New Jersey state court.  The complaint also named CAIPNJ.org and CAIPNJRadio as defendants.  Pressler alleges that Mills made false and defamatory statements on his blog and Internet radio show about Pressler and his business activities.  Pressler has moved the court for an order permanently enjoining the defendants from libeling him, requiring them to publish a retraction on the first page of the CAIPNJ.org website, and to publicly retract them during radio broadcasts.

Update:

2/5/2009 - The court set a hearing date of March 13, 2009 for a hearing on Pressler's request for a permanent injunction, but denied Pressler's request for a temporary restraint on Mills's publishing activities.

3/12/2009 - Mills filed an answer and counterclaims.

3/13/2009 -- The court denied Pressler's request for an injunction.

Jurisdiction: 

Content Type: 

Threat Source: 

User Submission Form

Subject Area: 

Roe v. McClellan

Date: 

07/31/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Jack Justin McClellan

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of California, Los Angeles County; Court of Appeal, Second District, Division 3, California

Case Number: 

PS010050 (trial court); B203651 (appeal)

Legal Counsel: 

Jack Justin McClellan (pro se, trial court hearing); Richard Mario Procida - Law Office of Richard Mario Procida (on appeal)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued
Material Removed

Description: 

In summer 2007, parents in Santa Clarita, California sought an injunction against Jack McClellan, a self-proclaimed pedophile who maintained websites promoting his belief that "girl-love" is positive and healthy. 

According to the MLRC, McClellan's website stated that its purpose was "to promote association, friendship; and legal, nonsexual, consensual touch[ing] (hugging, cuddling, etc) between men and prepubescent girls."  In 2007, McClellan visited a number of events and places where children congregate in California and the Pacific Northwest in order to photograph children in attendance and to provide commentary on his websites, according to an appellate decision in the case.  His website included photographs of fully clothed children taken at these public events and places.

The Superior Court of California, Los Angeles County, granted a temporary restraining order and preliminary injunction against McClellan and his websites on August 3, 2007.  McClellan was arrested for violating the order and served 10 days in jail.

After a hearing on August 24, 2007, in which McClellan represented himself, the Superior Court issued a permanent injunction barring McClellan from:

(1) harassing, attacking, threatening, assaulting (sexually or otherwise), hitting, following, stalking, keeping under surveillance, blocking the movement, loitering, with or around Jane Roe, Jane Roe 2 [the anonymous plaintiffs], or any minor child; (2) contacting (directly or indirectly), telephoning, sending messages, mailing, e-mailing, photographing, videotaping, and otherwise recording or publishing any image of Jane Roe, Jane Roe 2, or any minor child without the parent or guardian's written consent; (3) taking any action, directly or through others, to obtain the addresses or locations of Jane Roe, Jane Roe 2, or any minor child; (4) being within 10 yards of any place where children congregate, including schools, playgrounds, and child care centers; and (5) loitering where minor children congregate, including, but not limited to schools, parks, and playgrounds.

McClellan appealed, arguing that the injunction violated his First Amendment rights because it was based on the content of his speech that promotes sexual relations with children as being healthy, and because it constituted a prior restraint on his publishing activities. 

The California Court of Appeal, Second District, affirmed the lower court, reasoning that the injunction did not bar McClellan from expressing his views, but rather from voyeuristic and stalking activity that is "offensive, frightening, menacing, and not protected by McClellan's free speech or assembly rights." Although the decision is not entirely clear, it also suggests that McClellan invaded the privacy of those children whose photographs appeared on his website, both by appropriating their likenesses for an exploitative purpose and casting them in a false light.

Jurisdiction: 

CMLP Notes: 

to-do: check for appeal to Cal Supreme

Content Type: 

Threat Source: 

MLRC

Subject Area: 

Patriot Act’s National Security Letter Gag Provisions Choke on First Amendment Grounds

The Second Circuit Court of Appeals struck down one of the most constitutionally repugnant provisions of the PATRIOT Act -- the portions of the Act that place recipients of so-called "national security letters" (NSLs) under a permanent, unreviewed, lifetime gag order. See Doe v. Mukasey, __ F.3d __ (2d. Cir. 2008).

Jurisdiction: 

Subject Area: 

Mystery Blogger Caught Up in First Amendment Flap

On Monday, the blog-hosting service Blogger took down a blog called "Jeffrey Denner's ineffective assistance of counsel" after Jeffrey Denner notified Blogger that a Massachusetts court had issued a restraining order prohibiting one Derrick Gillenwater from using the words "Jeffrey" or "Denner" or "Jeffrey Denner&qu

Jurisdiction: 

Subject Area: 

Denner v. Gillenwater

Date: 

10/10/2008

Threat Type: 

Other

Party Receiving Legal Threat: 

Derrick Gillenwater

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of the Commonwealth of Massachusetts, Suffolk County

Case Number: 

No. 05-5469

Legal Counsel: 

Christopher Carbone (withdrawn); Derrick Gillenwater (Pro Se)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued

Description: 

Derrick Gillenwater sued lawyers Jeffrey Denner and Kevin Barron for malpractice in Massachusetts state court.  During the litigation, Gillenwater allegedly sent a threatening email to Denner and Barron, stating that he would "send his blog posting out to the media" and that he would raise his damages demand by $1 million if he had to "send a 93A letter."  (Exactly what all this means, we do not know.)  In response, Denner and Barron filed an emergency motion to dismiss or, in the alternative, for a preliminary injunction.

On October 10, 2008, Associate Justice Lauriat of the Massachusetts Superior Court issued a temporary restraining order against Gillenwater, prohibiting him from using the words "Jeffrey" and/or "Denner" and/or "Jeffrey Denner" in any blog post prior to an October 14 hearing on the defendants' motion.  The court also restrained Gillenwater from filing with the court or otherwise publishing a document captioned "Motion of Plaintiff Gillenwater for Summary Judgment" and from contacting either defendant.  

On October 21, 2008, Justice Spurlock of the Massachusetts Superior Court ruled that Gillenwater had violated the restraining order by continuing to publish his blog (located at http://jeffreydenner.blogspot.com).  Gillenwater apparently left the substance of his previous postings intact and simply replaced "Jeffrey Denner" with "Geoffrey Dinnir" in the text.  The court directed Gillenwater to comply with the October 10 order and further prohibited him from "using in his depiction in his blogspot [sic] that could be reasonably interpreted as referring to Jeffrey Denner or Kevin Barron."  The court also enjoined Gillenwater from filing his motion for summary judgment "or any other pleading unless he receives prior permission from this court."  Mr. Gillenwater's blog is no longer online.

On December 1, the blog-hosting service Blogger took down another blog called "Jeffrey Denner's ineffective assistance of counsel" (located at http://dennerlaw.blogspot.com/), after receiving a copy of the court order from Denner.  Blogger restored this blog after its pseudonymous operator "Boston Bob" informed the company that he is not Derrik Gillenwater.  See our database entry, Denner v. Boston Bob.

Jurisdiction: 

Content Type: 

Subject Area: 

Denner v. Boston Bob

Date: 

12/01/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Boston Bob

Type of Party: 

Individual

Type of Party: 

Individual

Court Name: 

Superior Court of the Commonwealth of Massachusetts, Suffolk County

Case Number: 

No. 05-5469

Legal Counsel: 

Boston Bob (Pro Se)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

On December 1, 2008, the blog-hosting service Blogger removed the blog titled "Jeffrey Denner's ineffective assistance of counsel" after Jeffrey Denner delivered to it a court order prohibiting Derrick Gillenwater from using the words "Jeffrey" or "Denner" or "Jeffrey Denner" in any blog postings. Blogger notified the anonymous operator of the blog, who goes by the moniker "Boston Bob."  On December 2, Boston Bob replied as follows: 

The problem is, I'm not Derrick Gillenwater, nor do I operate under his
authority.

I am an independent anonymous person.

Please repost my blog immediately.

Thank you.

Blogger restored the blog and indicated that it would notify Mr. Denner.

Boston Bob created the blog in mid-October 2008, after apparently meeting Derrick Gillenwater and discussing Gillenwater's malpractice lawsuit against Jeffrey Denner and Kevin Barron, two Boston lawyers. Gillenwater himself is a blogger, and at the time he also operated a blog dedicated to criticizing Jeffrey Denner and discussing the lawsuit at http://jeffreydenner.blogspot.com.

At around the same time that Boston Bob started his blog, Denner and Barron obtained a restraining order and then a preliminary injunction from a Massachusetts state court prohibiting Gillenwater from blogging about Denner and from filing motions or pleadings without prior permission of the court.  For details, see our database entry, Denner v. Gillenwater.

Boston Bob published only three posts before Blogger temporarily removed the blog, all of which related to Gillenwater's lawsuit and alleged malpractice on the part of Denner and Barron. Since the takedown, Boston Bob has published a series of posts criticizing the court's gag order as unconstitutional.

Jurisdiction: 

Content Type: 

Subject Area: 

George S. May International v. Xcentric Ventures

Date: 

09/15/2004

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Xcentric Ventures, LLC; Rip-Off Report.com; BadBusinessBureau.com; Ed Magedson; Various John Does, Jane Does, and ABC Companies

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of Illinois

Case Number: 

1:04-cv-06018

Legal Counsel: 

James Kenneth Borcia; David O Yuen; Maria Crimi Speth

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Issued
Material Removed
Settled (total)

Description: 

In September 2004, management consulting firm George S. May International Company (GSMIC) filed a  lawsuit against Ripoff Report, a consumer review website.  GSMIC's complaint included claims for defamation, "false descriptions and representations" in violation of the Lanham Act, trade libel, and deceptive trade practices.  It alleged that the site and operator Ed Magedson published false and misleading user comments accusing the company of "illegal and immoral activities." Cmplt.¶¶ 11-12

A federal district court in Illinois granted GSMIC's motion for a temporary restraining order.  The TRO prohibited Xcentric from "making, hosting or transmitting false or deceptively misleading, descriptions, statements or representations concerning George S. May, its business, owner, officers, employees and/or agents." GSMIC also requested a preliminary injunction, but the parties ultimately agreed to extend the TRO and the court never ruled on it.  In October 2008, GSMIC successfully moved the court for a finding of contempt of court for violating the TRO, and Xcentric subsequently removed eight postings that the court found violated the TRO.

Before resolution of a  complex series of motions, including one for partial summary judgment arguing that section 230 of the Communications Decency Act (CDA 230) protected Xcentric and Magedson from liability, the parties settled the case on undisclosed terms. 

Jurisdiction: 

CMLP Notes: 

Source: seomoz.org.

Priority: 

1-High

Content Type: 

Threat Source: 

Blog Post

Subject Area: 

Violet Blue v. Burch

Date: 

07/01/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

David "Ben" Burch; Nina Alter

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of California, County of San Francisco

Case Number: 

CCH-08-568060 (Burch); CCH-08-568061 (Alter)

Legal Counsel: 

Mark Levine (for Burch); Nina Alter (Pro Se)

Publication Medium: 

Blog
Email
Wiki

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Denied

Description: 

In July 2008, sex columnist Violet Blue requested a restraining order in San Francisco Superior Court against David "Ben" Burch and Nina Alter.  Blue claimed that Burch sent her a threatening email, that Alter published disparaging statements about her on Burch's blog Kicking Pebbles, and that both posted several disparaging statements about Blue on Boing Boing and her Wikipedia page.  The court denied Blue's request for a restraining order, finding that she failed to meet her burden of proof.

Jurisdiction: 

Priority: 

1-High

Content Type: 

Threat Source: 

Blog Post

Subject Area: 

Court Rejects Bid to Silence Mortgage Watchdog Website

The Mortgage Lender Implode-O-Meter, a mortgage watchdog website, announced on Friday that a federal judge denied a motion for a preliminary injunction against it filed by Global Direct Sales, LLC, the Penobscot Indian Nation, Christopher Russell, and Ryan Hill.

Jurisdiction: 

Subject Area: 

Global Direct Sales, LLC v. Krowne

Date: 

09/19/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Aaron Krowne individually and dba The Mortgage Lender Implode-O-Meter and ML-Implode.com; Krowne Concepts, Inc., Implode-Explode Heavy Industries Inc.; Justin Owings; Krista Railey; Streamline Marketing, Inc.; Lorena Leggett

Type of Party: 

Individual
Organization
Government

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Maryland

Case Number: 

8:08-cv-02468

Legal Counsel: 

Tamara Good - Good Law PC; Charles J. Borrero; Henry R Abrams - Saul Ewing LLP (withdrawn); Julie S Turner - The Turner Law Firm (withdrawn)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Global Direct Sales, LLC, its principals Ryan Hill and Christopher Russell, and the Penobscot Indian Nation sued Aaron Krowne, Krista Railey, Implode-Explode Heavy Industries, Inc. (IEHI), Krowne Concepts, Inc. (KCI), and others after Krowne's mortgage watchdog website, The Mortgage Lender Implode-O-Meter, published an article written by Railey that criticized the Grant America Program. The Grant America Program is a seller-financed down payment assistance program for low- to moderate-income homebuyers, operated under an agreement between Global Direct Sales and the Penobscot Indian Nation.

The Implode-O-Meter site hosts Railey's "FHA Mortgage Whistleblower" column, where the article appeared. In her article, Railey allegedly made a number of false and defamatory statements, including that the Grant America Program was a "scam," and that Russell and Hill had treated another charity they founded "like their own personal piggy bank." Cmplt.¶ 37. In response to an angry comment by Russell, Railey conferred with Krowne and other website editors, who edited the article to "tone down" the commentary and removed references to the word "scam" from the article before it was republished on Railey's blog (apparently the original version that appeared online was a draft published inadvertantly). The plaintiffs filed suit nonetheless. Railey, Krowne, and the other defendants maintained that the article was accurate and based on publicly available information.

The plaintiffs filed a motion for a temporary restraining order and preliminary injunction on September 26, 2008. The defendants filed a response on October 7, arguing that the requested injunctive relief would constitute an unconstitutional prior restraint on speech, and that the allegedly defamatory statements were not actionable. 

Update:

At a hearing on November 3, 2008, the court denied the plaintiffs' motion for a temporary restraining order and preliminary injunction. Noting that the "article is out there, has been and cannot be eliminated from the internet," and that damages would be available later, the court held that the plaintiffs had failed to establish irreparable harm. The court also found that an injunction "would affect a First Amendment right of the defendants" and would "stifle rather than foster appropriate debate."

The court subsequently dismissed three defendants-Aaron Krowne, Justin Owings, and Lorena Leggett-for lack of personal jurisdiction, and a fourth defendant, Streamline Marketing, Inc., without prejudice.

On November 11, 2009, the remaining defendants (IEHI and KCI) filed a special motion to dismiss under Maryland's anti-SLAPP law, arguing that the plaintiffs filed the suit in bad faith because of defendants' exercise of their First Amendment rights and rights granted by the Maryland Declaration of Rights.

Plaintiffs responded on December 7, 2009, contending that Maryland's anti-SLAPP law does not apply in federal court because it is predominantly procedural and conflicts with the Federal Rules of Civil Procedure. They also argued that the statute was inapplicable because it only applies to communications "regarding any matter within the authority of a government body," and "multiple" statements in the article at issue did not involve such matters. Plaintiffs further claimed that the complaint was filed in good faith, that the article was not entitled to First Amendment protection because it "contains both false statements of fact and unsupported opinion that implies defamatory facts," and that the article was prompted by constitutional malice in "retaliation for the plaintiffs' refusal to advertise on [defendants'] website." Throughout the brief, the plaintiffs relied heavily on a declaration provided by the author of the article at issue, Railey, which "admit[ted] that ‘there are significant problems with the final published article" and that the "article contains and implies false statements of fact and is misleading in a material manner." 

The defendants filed a reply in support of the special motion to dismiss on January 26, 2010. They argued that the Maryland's Anti-SLAPP statute was applicable, because it is not inconsistent with federal rules. Defendants also claimed that the article "addressed an issue within the authority of a government body, . . . Plaintiffs cannot satisfy their burden for their defamation claim, and . . . this suit was brought in bad faith to drive Defendants out of business and thereby silence them." Defendants contrasted Railey's declaration for the plaintiffs with a "much earlier declaration," in which she stated "I stand behind all of the statements I have made in my article about the Plaintiffs and believe each and every one of them to be based in truth and supported by my research."

On July 12, 2010, the court denied the defendants motion to dismiss pursuant to Maryland's anti-SLAPP statute. The court applied the statute because it "is limited in its scope and appears not to conflict with the Federal Rules of Civil Procedure." However, the court concluded that there were genuine issues of material fact as to whether "the suit was brought in bad faith," the article "was regarding any matter within the authority of a government body," and "whether Defendants maliciously published the article."

The attorneys for IEHI and KCI subsequently filed motions to withdraw from the case, and, on May 31, 2011, the court granted them. In doing so, the court advised the defendants that, as corporate entities, they could not move forward without representation. The court subsequently defaulted both entities for failure to answer the complaint through counsel. Plaintiffs then filed an unopposed motion for default judgment as to liability against the defaulted defendants, for summary judgment, and for a permanent injunction. The court denied that motion on April 9, 2012, finding that, although the plaintiffs' had properly pled the elements of defamation, a final judgment could not be entered while the claims against defendant Railey were still pending.

On July 6, 2012, IEHI and KCI, represented by new attorneys, filed a motion to vacate the entry of default. The court granted the motion, finding that the defendants' had established "the viability of four defenses to Plaintiffs' defamation claims"-they "demonstrated, with ample factual support,: (1) Plaintiffs . . . are government entities, and as such, under the First Amendment cannot maintain actions for defamation or libel; (2) Plaintiffs cannot meet their burden to prove falsity . . .; (3) the author, Railey, was not an agent of the IEHI and Krowne Concepts . . .; and (4) Plaintiffs do not allege that they suffered any harm as a result of Defendants' statements." The court decided that the defendants' yearlong delay in moving to vacate the default was not dispositive, as it did not prejudice the plaintiffs.

On July 1, 2013, the defendants moved for summary judgment. They elaborated on the claims included in their motion to vacate the judgment and raised, for the first time, a defense under Section 230 of the Communications Decency Act, claiming that the defendants "did little more than provide a canvas upon which third parties placed material." Plaintiffs responded to the motion by arguing that Section 230 was inapplicable. According to plaintiffs, IEHI "was responsible for both creating and developing" the article as a "joint project" with Railey. Relying on Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008), the plaintiffs argued that a website is a content provider "even if it did not ‘create' the content as long as it ‘materially contributes to the illegal conduct.'" Plaintiffs argued that IEHI materially contributed to the article because IEHI editors performed research for the article, edited the article before it was published, exchanged drafts, and "had the last say on what was published."

The district court dismissed the case on summary judgment on Sept. 18, 2013, holding that even if the plaintiffs' allegations were true, Section 230 "immunize[d] IEHI from this defamation action." The court noted that "determining what makes a party responsible for the ‘development' of content under Section 230(f)(3) is unclear," but that, under Roommates.com, 521 F.3d at 1163, "one is responsible for the ‘development' of information when he engages in an act beyond the normal functions of a publisher (such as deciding to publish, withdraw or modify third-party content) that changes the meaning and purpose of the content." On the other hand, the court stated, if an internet service provider "only passively displays content that is created entirely by third parties, then it is only a service provider with respect to that content."

The court found that, in this case, "[h]olding IEHI liable for mere control of the website on which allegedly defamatory content was published is precisely the type of conduct that falls squarely within the protections of the CDA." The court held that even if plaintiffs' assertions that "Railey received direct input from Krowne, that [an editor] performed research and that drafts were exchanged, and IEHI had the last say on what was published" were true, these actions merely amounted to "monitoring and publication of content on its network - ‘actions quintessentially related to a publisher's role.'" "[E]ven assuming Krowne edited or altered the content of the allegedly defamatory article," the court noted, "IEHI would still be immune." The court therefore concluded that Section 230 barred the plaintiffs' defamation claims.

By party agreement, the complaint was withdrawn as against KCI, and Penobscot Indian Nation was removed as a Plaintiff. The claims against Railey appear to have been settled outside of court. According to the docket, the case was terminated on September 25, 2013.

Jurisdiction: 

CMLP Notes: 

Updated 1/29/09 - VAF

Content Type: 

Threat Source: 

MLRC

Subject Area: 

Mitchell v. Trummel

Date: 

03/01/2001

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Stephen Mitchell; Council House, Inc.

Party Receiving Legal Threat: 

Paul Trummel

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court, King County, Washington

Case Number: 

01-2-04698-5 (trial court); No. 486624 (appeals court); No. 75977-4 (supreme court)

Legal Counsel: 

Richard Dubey; Beth Gordie; Paul Dayton; Leslie Clark; Pro Se (sporadically)

Publication Medium: 

Print
Verbal
Website

Status: 

Concluded

Disposition: 

Injunction Denied
Injunction Issued
Material Removed

Description: 

Stephen Mitchell, the administrator of Council House, Inc., a nonprofit housing complex for low-income senior citizens in Seattle, sought a restraining order against Council House resident Paul Trummel in 2001 after Trummel allegedly verbally accosted staff and residents, disrupted meetings, posted his newsletter on resident doors without permission, spied on residents at night by listening outside their apartment doors, and threatened to report residents to criminal authorities if they failed to meet with him, among other things.  The trial court granted a restraining order that prohibited Trummel from making any attempt to contact Mitchell or to keep Mitchell "under surveillance," and from going within 1,000 feet of Mitchell's residence or workplace, from entering or coming within 500 feet of Council House, and from "contacting in person, by email, electronically, by telephone, by writing, or through any third person, any resident of Council House and any board member, staff or employee of Council House at any location." 

Five months later, Mitchell moved for a finding of civil contempt for violation of the antiharassment, claiming that Trummel violated the "surveillance" provision of the anti-harassment order by posting stories on the Internet about events at the Council House.  He alleged that staff and residents felt endangered by Trummel's posting of their private information, including their home addresses, on the website and that they "felt under contiued surveillance by Trummel." Trummel argued that Mitchell's definition of "surveillance" was too broad and that he was exercising his First Amendment rights when posting about events at Council House, occurring both before and after the anti-harassment order was issued.

The trial court found Trummel in civil contempt and ordered him to edit his website "to assure that is in compliance with the . . . anti-harassment order" by, at a minimum, deleting the "names, addresses and any other personal information regarding past and present Council House staff, residents, employees, board members, or agents including legal council." The court determined in a later hearing that Trummel continued to be in contempt and modified the original harassment order, adding language restraining Trummel from "attempting to keep under suveillance" any current or former resident of Council House.  At this point, Trummel deleted identifying information about residents from his website.

Trummel then began using an off-shore website to post information about staff and residents of Council House.  At a subsequent hearing, at which Trummel was not represented by council, the court found him in contempt again and ordered him jailed.  He remained in jail for almost four months.  

Trummel appealed the contempt findings and anti-harassment orders. The Washington Court of Appeals affirmed the trial court in all respects.  On further appeal, the Washington Supreme Court vactated the contempt findings on grounds that posting information about events and people at Council House did not constitute "surveillance." The court vacated those portions of the anti-harassment orders that restrained Trummel from attempting to keep residents and staff  under surveillance, from contacting current or former residents and staff, and from going within 100 feet of any past, current, or future Council House Board member, resident, or employee. The court did not reach Trummel's arguments that the anti-harassment and contempt orders violated the First Amendment. See generally Trummel v. Mitchell, 131 P.3d 305 (Wash. 2006).

Jurisdiction: 

Priority: 

2-Normal

Content Type: 

Threat Source: 

MLRC

Subject Area: 

Judge Lenard v. Markus

Date: 

12/31/2007

Threat Type: 

Other

Party Receiving Legal Threat: 

David O. Markus

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Florida

Case Number: 

Crim. 06-20373

Legal Counsel: 

Pro se

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

David O. Markus, an attorney who writes the Southern District of Florida Blog, was silenced by a gag order issued by Judge Joan Lenard of the United States District Court for the Southern District of Florida, in connection with the "Liberty City 7" case (involving an alleged plot to blow up the Sears Tower). Markus had written posts about the case and called into question the gag order that Judge Lenard imposed on Lyglenson Lemorin, his wife, and his lawyer Joel DeFabio after Lemorin was acquitted by a jury.  Judge Lemorin had declared a mistrial as to Lemorin's co-defendants and issued the gag order to help ensure an impartial jury pool for the new trial.

Markus appeared before the court on behalf of DeFabio in order to challenge the gag order. Judge Lenard then extended the gag order to cover DeFabio's "agents," which clearly applied to Markus. Because of the order, Markus could no longer blog about the case.

Markus filed a petition for writ of mandamus with the Eleventh Circuit Court of Appeals, asking that the appeals court lift the gag order. Judge Lenard then modified the gag order so that it only applied to the underlying terrorism case, not to statements about Lemorin's impending immigration case in the Southern District of Florida.  As a result of this modification, the Elevent Circuit dismissed Markus's petition.

Jurisdiction: 

Content Type: 

Threat Source: 

MLRC

Subject Area: 

Moore v. O'Bannon

Date: 

03/01/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Valerie O'Bannon

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Mississippi Chancery Court; Mississippi Circuit Court, Hines County

Publication Medium: 

Website

Status: 

Pending

Disposition: 

Injunction Issued

Description: 

Reverend Ronald K. Moore and his wife sued Valerie O'Bannon after she created a website claiming that she had a five-month affair with Moore. According to the MLRC, Moore obtained an injunction from a Mississippi chancery court shutting down the website in February 2007 and attempted to have O'Bannon put in jail when she failed to do so.  Moore later refiled the case in Circuit Court in Hines County.

Priority: 

2-Normal

Content Type: 

Threat Source: 

MLRC

Subject Area: 

Jurisdiction: 

Pages