Prior Restraints

Gonzales v. Dunkle

Date: 

08/28/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Dunkle

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of Pennsylvania

Case Number: 

2:2007cv03577

Legal Counsel: 

Pro Se

Publication Medium: 

Blog
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Issued

Description: 

On Aug. 28, 2007, the U.S. Justice Department filed a civil lawsuit against John Dunkle, an anti-abortion activist from Reading, Pennsylvania, seeking injunctive relief for alleged violations of the Freedom of Access to Clinic Entrances Act ("FACE"), 18 U.S.C. § 248.

According to the complaint, Dunkel posted messages on his webpage and blog encouraging readers to kill an abortion provider by shooting her in the head. The postings allegedly targeted a former clinician at the Philadelphia Women's Center and included her name, home address, and photograph, along with instructions about how to kill her and avoid detection.

The complaint alleged that Dunkle's postings constituted a "threat of force to injure, intimidate and interfere with a person providing reproductive heatlh services" in violation of FACE. The government moved for a preliminary injunction, requiring Dunkle to remove the postings in question and prohibiting him from posting the same or similar messages in the future.

Dunkle, acting as his own legal counsel, filed a response to the motion for injunctive relief and a motion to dismiss. He argued that his writings were not "threats" under FACE and also maintained that some of the content was posted by a third party. The government contested Dunkle's claims, including his argument that the postings were not legally cognizable as "threats" under the statute.

On Nov. 8, 2007, after an evidentiary hearing, U.S. District Judge Thomas Golden granted a permanent injunction, ordering Dunkle to remove the postings and barring him from posting similar messages in the future. The injunction contains the following statement: "Nothing in this Order shall prohibit Defendant from picketing, creating, publishing and disseminating anti-abortion information so long as such activities do not constitute illegal threats and elicit violence." The court also denied Dunkle's motion to dismiss as moot.

Jurisdiction: 

CMLP Notes: 

sam reviewing

 

Content Type: 

Subject Area: 

Experian Information Solutions v. Sheehan

Date: 

08/18/1997

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Experian Information Solutions, Inc.

Party Receiving Legal Threat: 

William A. Sheehan, III

Type of Party: 

Large Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Western District of Washington

Case Number: 

C97-1360WD

Legal Counsel: 

Grant J. Silvernale, Noel Treat

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Denied
Injunction Issued

Description: 

William A. Sheehan sued a number of credit reporting agencies, including Experian, in federal court in Washington, alleging violations of the Fair Debt Collections Practices Act and the Fair Credit Reporting Act. In that litigation, Experian asserted a counterclaim against Sheehan for defamation, commercial disparagement and other torts based on the statements appearing on Sheehan's website.

According to documents filed in that case, Sheehan operated a personal website, on which he posted criticism of government officials and credit reporting agencies. His postings included comments about Experian, allegedly calling its employees "liars" and "scumbags." Sheehan also allegedly posted employees' home addresses and telephone numbers.

Experian moved for a temporary restraining order and a preliminary injunction to prohibit Sheehan from posting on his website: (1) "any false or defamatory statements about Experian, its employees or agents"; and (2) "any other language specifically calculated to induce others to harass, threaten or attack Experian, its employees or agents, including, but not limited to, their social security numbers, home phone numbers and maps to their homes." In June 1998, the court denied the first part of Experian's requested order, but granted the second.

In July 1998, the court granted Sheehan's motion to dissolve the temporary restraining order and denied Experian's motion for a preliminary injunction. The court reaffirmed its prior ruling that the first part of the restraining order would constitute an unconstitutional prior restraint on speech because it asked the court to prohibit speech that had not yet been found to be defamatory. It further held that the second part of the restraining order constituted an unconstitutional prior restraint because Sheehan's online speech was protected by the First Amendment since there was no evidence that he had published anything that could be deemed an incitement to imminent unlawful action.

Jurisdiction: 

Content Type: 

Subject Area: 

Warman v. Beaumont

Date: 

01/06/2005

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Jessica Beaumont

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

International

Court Name: 

Canadian Human Rights Tribunal

Case Number: 

T1106/8705

Verdict or Settlement Amount: 

$4,815.00

Legal Counsel: 

Paul Fromm (non-lawyer, aided Defendant)

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Verdict (plaintiff)

Description: 

Over a two-year period, Jessica Beaumont wrote and published over 1000 posts on a white supremacist forum called Stormfront White Nationalist Community, using the pseudonym "Jessy Destruction."

Here are some illustrations of her alleged postings: Regarding blacks moving to western Canada, she wrote, “It could get worse, lets just cross our fingers and hope they all die off from AIDS.” Regarding mixed-race relationships, she wrote, "Ever seen a tar black negroid and a chink? That’s a pretty sick/funny site," and she recalled witnessing a white man “with a veiled muslim that looked fresh off the boat, with the mud baby in the stroller!” Regarding Jews, she wrote, "I don’t understand why someone would attack helpless dogs [as] opposed to going after those dirty Jewish animals directly," and, "I believe that Jews are literally spawn of Satan himself." In one post she summed up her feelings for non-whites as follows: "I just don’t feel the need to be-friend non-whites, as they can do nothing for me, nor would I like to associate with them. I am fine with my own kind, and always will/have been. Theres my f*cking answer. Good enough?"

In January 2006, Richard Warman, an Ottawa-based lawer who specializes in human rights law, filed a complaint against Beaumont before the Candian Human Rights Tribunal. He alleged that, by publishing discriminatory statements on the Internet, Beaumont had exposed individuals and minority groups to hatred and/or contempt in violation of the Canadian Human Rights Act. The Canadian Human Rights Commission, of which Warman formerly was a member, participated in the litigation.

After a hearing, the tribunal found for Warman, and entered an order prohibiting Beaumont from communicating similar hate messages through the Internet in the future. The tribunal also ordered her to pay special compensation of $3,000 (Canadian) to Warman for discriminatory statements written against him, including calling him "that retarded jew warman." (Although Warman is not Jewish, the tribunal reasoned that "it is obvious that Ms. Beaumont perceived him as such.") Additionally, the tribunal levied a $1,500 (Canadian) penalty against Beaumont, payable to the government of Canada.

During the hearing, avowed neo-Nazi Paul Fromm testified on Beaumont's behalf, and while not a lawyer, provided Beaumont with assistance.

(Candian Dollar amounts were converted into U.S. Dollars for purposes of the "Verdict or Settlement Amount" field.)

Jurisdiction: 

CMLP Notes: 

Looking in the database, there's a chance this should have a settlement amount of $4815.

- Chris Wells

You are correct, Chris. I added the appropriate amount to the verdict field

Content Type: 

Subject Area: 

OMDA Oil & Gas, Inc. v. Porcari

Date: 

03/01/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Arthur J. Porcari

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

District Court of Dallas County, Texas; Court of Appeals, Fifth District of Texas, at Dallas

Case Number: 

No. 07-01850-M (trial level); No. 05-07-00390-CV (appellate level)

Legal Counsel: 

David F. Morris

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Denied
Injunction Issued

Description: 

OMDA Oil & Gas sued Arthur J. Porcari after he posted comments on private investor boards including the Yahoo! OMDA Investor Chat Board.

In June 2004, Porcari, a large stockholder of publicly traded shares in OMDA, told the Chairman of OMDA Adam Barnett that he believed that OMDA shares were undervalued and offered to assist the firm in expanding its operations. Barnett accepted the offer, and Porcari took over the firm's communications operations (he did not, however, become an officer of the company). In March 2006, Barnett and Porcari had a falling out over Barnett's management of the company, and Barnett put an end to Porcari's work for OMDA.

Before and after his involvement with Barnett, Porcari posted comments on the Yahoo! chat board criticizing OMDA's management and replying to Barnett's posts.

On March 1, 2007, OMDA sued Porcari in Texas state court, alleging that his Yahoo! posts were defamatory, constituted business disparagement, and breached Porcari's fiduciary duties to OMDA by disclosing confidential information obtained during his involvement with the firm.

The trial court granted OMDA a temporary injunction restraining Porcari from publishing defamatory, disparaging or negative statements about OMDA or any of its officers, directors, members, shareholders or affiliates, and from disclosing information he obtained between June 1, 2004 and March 31, 2006.

In June 2007, Porcari appealed the trial court's grant of the injunction. In October, a Texas appellate court reversed the trial court's decision, finding that the injunction constituted an unconsistutional prior restraint on Porcari's speech. The court ruled that claims of defamation and trade libel are not themselves sufficient to justify prohibiting a litigant from making negative statements about a company because damages can redress the harm. The court further held that the order requiring Porcari to refrain from disclosing any information obtained in the period from June 2004 to March 2006 was overbroad in restricting Porcari from communicating matters of public knowledge, rather than restricting the disclosure of confidential information only.

Update:

1/7/2008 - OMDA filed a petition for review to the Texas Supreme Court.

06/06/2008 - OMDA's petition to the Texas Supreme Court was dismissed for want of jurisdiction. (scroll down or Ctrl+F "porcari")

Jurisdiction: 

CMLP Notes: 

In a shareholder bulletin, the Chairman mentions that a letter was sent to Porcari prior to the litigation. Jill has not been able to find out anything about what was in the letter.

to-do: finish entry for letter threat

Status updated 6/6/2008, OMDA trying to appeal the Appeals Court decision. (AAB)

06/18/2009 - updated to include Texas Supreme Court's denial of OMDA's appeal (LB)

Content Type: 

Subject Area: 

Xyience Inc. v. Bergeron

Date: 

07/18/2007

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Xyience Inc.

Party Receiving Legal Threat: 

Richard Bergeron

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal
State

Court Name: 

District Court, Clark County, Nevada; United States Bankruptcy Court, District of Nevada

Case Number: 

07-A-544781-C; BK-08-10474-MKN

Legal Counsel: 

Richard Bergeron (Pro Se)

Publication Medium: 

Social Network
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued

Description: 

Xyience Inc., a manufacturer of energy drinks and supplements, sued Rich Bergeron in Nevada state court over statements posted on his MySpace.com page and website, unlimitedfightnews.com. According to the complaint, Bergeron posted an article to his MySpace page that contained allegations that that Xyience was under investigation by the Securities and Exchange Commission and that a class action lawsuit was pending against the company. Xyience contends that Bergeron is the author of these statements, but he maintains that he found these statements in an email widely circulated on the web, which he merely posted to his MySpace page with a disclaimer. (MySpace removed the posting and Bergeron's profile shortly thereafter.) Mr. Bergeron provided us with links to other websites where the article apparently still appears (here, here, and here).

The complaint further alleges that Bergeron posted to his website a report entitled "Xyience Investigative Report: Creator Russell Pike's Criminal Tendencies Revealed," in which he claimed that the company and its majority shareholder, Russell Pike, were defrauding investors and conspiring with Dana White, president of Ultimate Fight Challenge, to defraud investors. The complaint claims also that Bergeron "continues to post defamatory articles" about the company on his website, but does not identify any specific statements.

The complaint sets forth claims for defamation, tortious interference with prospective economic advantage, and intentional interference with contract. Xyience alleges that Bergeron's reports have cost the company millions of dollars due to lost investor contributions, prompting the company to seek $25 million in damages.

Alongside the complaint, Xyience filed a motion for preliminary injunction to compel Bergeron to take down his reports and to prohibit him from publishing any future reports about Xyience. On July 27, 2007, Bergeron filed a motion to quash service of summons (i.e., a motion to dismiss) for lack of jurisdiction, arguing that the Nevada court does not have personal jurisdiction over him because he is a resident of Massachusetts without significant contacts with Nevada.

On September 6, 2007, the court granted Xyience's motion for a preliminary injunction. The court's order requires Bergeron to "remove any and all articles or postings regarding false claims about Xyience from the internet" and prohibits him from making any statements suggesting or implying that Xyience is being investigated by the SEC. It also requires Bergeron to remove "any and all articles or postings claiming that Xyience is defrauding investors and/or is conspiring with Dana White or the Ultimate Fight Challenge to defraud investors" and prohibits him from making any future represenations to that effect. On the same day, the court dismissed Bergeron's motion to quash the service of summons.

Update:

10/01/2007 - Bergeron filed a motion to dismiss the complaint.

3/20/2008 - Xyience filed a notice of removal to the United States Bankruptcy Court.

3/28/2008 - Bergeron filed a motion to suspend bankruptcy proceedings and for summary judgement on oustanding claims.

6/05/2008 - Counterdefendant Ferttita filed an application for order to show cause regarding unauthorized recording of court proceedings.

Jurisdiction: 

CMLP Notes: 

Still pending as of 6/5/20008. Updated 6/06/08 {JMC}

Updated 1/29/08 - VAF

Content Type: 

Subject Area: 

eAppraiseIT v. Crowley

Date: 

06/19/2007

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

eAppraiseIT, LLC

Party Receiving Legal Threat: 

Pamela Crowley

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

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

Case Number: 

05-2007-CA-027976

Legal Counsel: 

Eric A. Lanigan

Publication Medium: 

Forum
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Denied
Withdrawn

Description: 

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

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

 

Update:

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

Jurisdiction: 

CMLP Notes: 

 

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

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

Content Type: 

Subject Area: 

Hargrave Military Academy v. Guyles

Date: 

05/08/2006

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Hargrave Military Academy; Wheeler Baker

Party Receiving Legal Threat: 

Jerry Guyles; Melissa Guyles; Stewart Guyles

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Western District of Virginia

Case Number: 

7:06CV00283

Legal Counsel: 

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

Publication Medium: 

Email
Print
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Issued
Settled (total)

Description: 

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

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

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

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

Jurisdiction: 

Content Type: 

Subject Area: 

The Permanente Medical Group v. Cooper

Date: 

03/15/2005

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

The Permanente Medical Group, Inc.; Kaiser Foundation Health Plan, Inc.

Party Receiving Legal Threat: 

Elisa Cooper

Type of Party: 

Large Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

California Superior Court, Alameda County

Case Number: 

RG05-203029

Legal Counsel: 

Elisa Cooper (Pro Se)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Issued

Description: 

Permanente Medical Group, Inc. and Kaiser Foundation Health Plan, Inc. (Kaiser) sued fomer employee Elisa Cooper in California state court in March 2005. The complaint alleged that Cooper breached a confidentiality agreement and invaded the privacy of Kaiser patients by posting on her personal blog documents containing the confidential health information of Kaiser member patients. Kaiser asked the court to enjoin Cooper from pubishing this information and to return any documents in her possession containing this information.

Cooper disputes that she published Kaiser internal documents. According to her blog, Cooper found a Kaiser document called the "Systems Diagram" on a public website long after she was terminated from her employment with Kaiser. The Systems Diagram apparently containd names, IP addresses, computer codes, and screenshots that Cooper considered a breach of HIPAA, a federal law that protects the confidentiality of patient health information. In her account, Cooper posted links to the Systems Diagram on her blog in order to bring the breach to the attention of government agencies, but did not host the materials.

On March 24, 2005, the court issued a preliminary injunction barring Cooper from disseminating patient information. On December 19, 2005, the court granted summary judgment to Kaiser on its invasion of privacy claim. On January 19, 2005, the court entered a permanent injunction barring Cooper from the posting health information of Kaiser's member patients and ordering her to destroy all materials in her possession containing this information.

On her blog, Cooper indicated that she would be appealing the ruling, but we have been unable to determine the status of her appeal.

Jurisdiction: 

CMLP Notes: 

to-do: it appears that Kaiser sent Cooper a cease-and-desist letter (see page 5 of Plaintiff's Memorandum in Support of Summary Judgment) - need to create related database entry for the letter

Content Type: 

Threat Source: 

MLRC

Subject Area: 

Pages

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