SLAPP

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

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

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

Date: 

06/04/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Thomas Keen

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Commonwealth of Massachusetts, Norfolk County Superior Court Dept.

Case Number: 

2012-00963

Legal Counsel: 

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

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

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

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

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

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

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

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

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

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

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

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

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

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

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Subject Area: 

Ascend Health Corp. v. Wells

Date: 

05/03/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Brenda Wells

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of North Carolina: Eastern Division

Case Number: 

4:12-CV-00083-BR

Legal Counsel: 

John Bussian (The Bussian Law Firm, PLLC); Mark Prak, Charles Coble, Eric David (Brooks, Pierce, McLendon, Humphrey & Leonard LLP)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

University Behavioral Health of Denton ("UBH") is a private psychiatric hospital in Texas owned by Ascend Health Corporation, where Brenda Wells, a North Carolina resident, was once treated. Dr. Khan is UBH's medical director, while Dr. Kresch is the President and CEO of Ascend. Wells operates the blog page "Worst Hospitals in America: UBH/Mayhill" at http://ubhdenton.wordpress.com/ (she also owns ubhdentonsucks.com, which redirects to this blog page). Wells promotes this blog, criticizing UBH and its doctors, on social media sites like Facebook and Twitter and encourages readers to submit their own stories. 

On May 3, 2012, Ascend Health Corporation, UBH, and Drs. Khan and Kresch filed a complaint against Brenda Wells in the U.S. District Court for the Eastern District of North Carolina. In the complaint, the plaintiffs alleged five claims for relief: defamation under North Carolina law, violation of the North Carolina Deceptive Trade Practices Act, libel under Texas law, business disparagement under Texas law, copyright infringement, and civil conspiracy. With respect to the North Carolina defamation and Texas libel claims, the plaintiffs referred to statements on the blog in which Wells implied she was held against her will, the doctors were unqualified, the facilities were unsanitary, and more. With respect to the two business-related claims, the plaintiffs argued they suffered reputational harm as a result of the false and defamatory commentary posted on Wells's blog. The plaintiffs also argued that Wells reproduced UBH and Ascend's copyright by taking images of facilities and doctors from their websites and copying the images on her blog. 

In response, Wells filed motions to dismiss on June 15, 2012. First, Wells argued that under North Carolina's choice of law, Texas substantive law rather than North Carolina law should govern this dipute. Wells also argued that the plaintiffs' copyright infringement claim should be dismissed under Rule 12(b)(6) as the plaintiffs failed to prove that they had valid copyrights in the images. Most notably, Wells moved to dismiss the Texas libel and business disparagement claims under the Citizen Participation Act, Texas's anti-SLAPP statute. To support the dismissal of the libel claim, Wells argued that: the allegations in the complaint were not set out with sufficient particularity to satisfy the statute; statements on the blog were non-actionable expressions of opinion and/or were non-defamatory; the blog statements were substantially true; plaintiffs could not prove that Wells acted with the requisite level of fault; the statements are commentary on an issue of public concern; Section 230 immunizes Wells from liability for third-party content on her blog; and the statute of limitations bars claims arising from many of the statements.

The plaintiffs filed an opposition to Wells's motion to dismiss on July 6, 2012. The plaintiffs relied primarily on a choice of law argument, arguing that federal procedural law and North Carolina substantive law govern, which, along with public policy, preclude application of the Texas anti-SLAPP statute. The plaintiffs also argued that Wells is an editor, not an "information service, system, or access software provider," and therefore is not eligible for Section 230 immunity. Further, the plaintiffs argued that the "matter of public concern" privilege does not apply because Wells's blog is not a "publication by a newspaper or other periodical." After arguing that the defamation claims not barred by statute of limitations in Texas or North Carolina, the plaintiffs argued that the complaint's allegations are sufficient to support a case for defamation per se. The plaintiffs also noted the completion of copyright registration to sustain the copyright infringement claims.

On July 23, 2012, Wells replied, reaffirming her argument that Texas's law and anti-SLAPP statute are applicable to this case. Wells also reasserted that plaintiffs failed to meet the burden of proof under the anti-SLAPP statute, and therefore their claims should be dismissed under Rule 12(b)(6) for failure to state a claim.

The court granted in part and denied in part the motions to dismiss in an order on March 14, 2013. The court dismissed both North Carolina claims after finding that Texas substantive law governs under North Carolina's choice of law doctrine. The court also dismissed the civil conspiracy claim and copyright infringement claim, finding that Wells's use of the images for criticism was transformative, noncommercial and constituted fair use. The court denied the motion to dismiss the plaintiff's claims for Texas libel and business disparagement, rejecting the applicability of Section 230. As Wells herself posted to the blog and significantly altered some content that originated with third parties, the court held that Section 230 immunity did not cover her content. Wells's fair reporting privilege argument was also rejected; the court held that as a blogger Wells would not be entitled to the privilege, distinguishing blogs from newspapers and other traditional news sources. In Judge Britt's words, "Postings on the blog are not published at regular intervals. They are not composed of articles, news items, or the like."  

On April 22, 2013, the plaintiffs filed a notice of voluntary dismissal with prejudice, thereby dismissing all remaining claims against Wells. As of July 2013, Wells's blog and critical commentary remained available.

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Jurisdiction: 

Zhang v. China Free Press, Inc.

Date: 

06/14/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Weican Null Meng; China Free Press, Inc.

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

Central District of California

Case Number: 

CV12-5216-DMG (PLAX)

Legal Counsel: 

Weican Null Meng: Marc J Randazza, Jason A Fischer (Randazza Legal Group); China Free Press, Inc.: Howard Loring Rose, James Rosenfeld, John Rory Eastburg, Kelli L Sager (Davis Wright Tremaine LLP)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

Zhang Ziyi is an international motion picture actress who has appeared in films such as Crouching Tiger, Hidden Dragon and Memoirs of a Geisha. On June 14, 2012, Zhang filed a complaint in the Central District of California against the corporation China Free Press, Inc., alleged to be doing business as Boxun News, and Boxun News's owner, Weican Null Meng. The complaint alleged five claims: (1) libel per se, (2) false light invasion of privacy, (3) intentional interference with prospective economic advantage, (4) negligent interference with prospective economic advantage, and (5) unlawful and unfair business practices under California's Business and Professional Code.

The complaint asserted that Boxun News published three articles on its website that included statements that Zhang was a prostitute who had sexual relations with Chinese government officials, among others, and that she received "outlandish payments" for doing so. One article, it stated, claimed that Zhang was under investigation by Chinese authorities and had been banned from leaving China. According to the complaint, these reports had been republished by other media outlets around the world. The plaintiff claimed that the defendants "willfully, knowingly, oppressively, and maliciously conspired" to publish false and defamatory statements about Zhang in order to "damage her, harm her, expose her to hatred, contempt, ridicule and obloquy, damage her business, and wrongfully promote their own business interests" at her expense. In filing suit, Zhang sought: general, special, and punitive damages; attorney's fees; and injunctive relief.

On August 15, 2012, defendant Meng filed a motion to dismiss the complaint for lack of personal jurisdiction. Meng, a resident of North Carolina, said he administered the Boxun News website from North Carolina and that the site's servers are leased from a Texas company. He claimed that the site generates no revenue and has limited user interaction. Thus, Meng asserted that his contacts with California did not satisfy due process. He argued that the claims did not arise from his California activities, and that there was no foreseeable harm from the allegedly tortious material. Meng also disputed Zhang's assertion that China Free Press was doing business as Boxun, stating that they were separate and distinct entities.

On August 17, 2012, while his motion to dismiss for lack of personal jurisdiction was pending, Meng filed a special motion to strike the complaint under California Code of Civil Procedure § 425.16 -- California's anti-SLAPP statute. Meng asserted that he fulfilled the requirements under § 4.25.16 because (1) his expressive conduct was made in furtherance of his right of petition or free speech, and (2) his speech was connected to a public issue. He claimed that Boxun News' status as a news reporting agency, and publishing a story dealing with "corruption at high levels of the Chinese government, are archetypical examples of conduct made in furtherance of protected speech." Because the allegedly defamatory statements included allegations of Zhang having allegedly unlawful affairs with Bo Xilai, a prominent politician in the Chinese Central Communist Party, the motion stated, the allegations were incidental to "a major political scandal." Thus, Meng argued that because Bo Xilai's fitness for an office of public trust was involved, reporting on the alleged affair was a matter of public interest. The motion stated, "While some elements of the scandal may seem trite, our own country's experience shows us that from seemingly small sexual acts, great political consequences may flow."

The motion to strike claimed that because Zhang was a public figure, due to her international fame, she needed to prove that Meng published the statements with actual malice. He claimed that she could not satisfy this, as Meng had relied on information from trusted sources, verified the information with an independent source, and adhered to proper journalistic standards practiced by mainstream newspapers. Meng also claimed that his sources were entitled to anonymity for this matter and that "outing them for prosecution in China [was] the sole purpose of this litigation." He argued that the underlying information was "too politically sensitive" for distribution without anonymity protections, stating, "This is no mere conjecture: Boxun reporters have been imprisoned for their contributions to the site." In his motion, Meng sought dismissal of the case, as well as costs and attorney's fees.

On January 4, 2013, Zhang filed oppositions to both of Meng's motions. In her opposition to Meng's motion to dismiss for lack of personal jurisdiction, Zhang claimed that the court could exercise jurisdiction because Meng purposefully directed his conduct in California, Zhang's harm was likely to be felt in California, and Meng did not satisfy his burden to present a compelling case that the exercise of jurisdiction would be unreasonable.

Zhang's opposition to Meng's motion to strike argued that Meng failed to meet his burden under the anti-SLAPP statute. Zhang asserted that as a news outlet, Boxun News was not considered a public forum protected under the statute. She argued that the defamatory statements did not concern a matter of public interest -- giving examples of statements saying Zhang had several boyfriends -- as they had "nothing to do with Mr. Bo's fitness for office." Therefore, the opposition claimed, the defamatory statements were not related to any major political scandal, a public issue, or any public interest. Further, the opposition argued that even if a person is a public figure, not all discussion of her is a matter of public interest.

Zhang's opposition further argued that there was a probability that the plaintiff would prevail on her claims because she could satisfy the required elements and the allegedly defamatory statements caused her to lose at least two potential jobs. Furthermore, the opposition claimed that there was clear and convincing evidence that the defamatory statements were made with actual malice because (1) Meng's sources provided unsubstantiated information that was not first-hand knowledge, (2) Meng was skeptical of about reports he received and altered an article to try to make the story more believable, (3) Meng did not attempt to contact Zhang to get her side of the story before publishing, and (4) the articles "suggest a malicious campaign [and] increasingly take on a threatening tone," going beyond the ordinary practice of journalism. Alternatively, the opposition argued that if the court needed more evidence to prove actual malice, it should deny the motion so Zhang can obtain the names of the confidential sources and complete necessary discovery.

On January 11, 2013, Meng filed responses to both of Zhang’s oppositions. In his reply in support of his motion to dismiss, Meng claimed there was no personal jurisdiction because his conduct was not directed toward California and that the court’s jurisdiction over him would be unreasonable. In Meng’s reply in support of his motion to strike, he claimed his website was a public forum under the statute because “public access, rather than the public’s ability to comment, is the hallmark of a public forum.” Meng asserted that Zhang’s “role in the Bo Xilai affair is inherently of public interest.” He argued that the public’s interest in Zhang is heightened both by her celebrity and her involvement in the scandal, nothing that “the legal and political ramifications of her reported relations with Bo Xilai are of particular public interest.”

In his reply, Meng also argued that Zhang was not likely to prevail on the merits of the case, stating that even if the allegedly defamatory statements were false, the relevant question was whether Meng knew of their falsity. Meng argued that Zhang’s evidence failed to demonstrate that she could prove this and that she had not even contacted Meng regarding this matter. He claimed that the identities of his confidential sources were unnecessary to prove actual malice, and that more discovery would “not cure what ails the Plaintiff’s case” but would prejudice Meng. Meng argued that Zhang's request for disclosure of the sources did not pass the three-part test that federal courts rely on for determining when a journalist’s sources must be disclosed, citing the 2nd Circuit case Garland v. Torre, because (1) the information sought did not go to the heart of Zhang’s claim, (2) Zhang had not presented evidence showing she had attempted to get the information from alternative sources, and (3) the sole purpose of the lawsuit was in “an effort to silence Boxun News.”

As of July 15, 2013, no hearing has been scheduled regarding the motion to dismiss or the motion to strike. 


Content Type: 

Jurisdiction: 

Subject Area: 

Haywood v. St. Michael’s College

Date: 

07/24/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

St. Michael's College, Christopher Hardy, Logan Spillane

Type of Party: 

Individual

Type of Party: 

Individual
School

Court Type: 

Federal

Court Name: 

United States District Court for the District of Vermont

Case Number: 

2:12-cv-00164

Verdict or Settlement Amount: 

$0.00

Legal Counsel: 

Jeffrey J. Nolan and W. Scott Fewell (Dinse, Knapp & McAndrew) (for Saint Michael’s College), William B. Towle (Ward & Babb) (for defendants Spillane and Hardy)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

In January 2012, a professor at St. Michael's College posted a profile of John D. Haywood, a candidate for President of the United States in the New Hampshire Democratic primary, to a college-owned website. His students, Logan R. Spillane and Christopher Hardy, had written the profile of Haywood to fulfill a requirement for a journalism class. In preparing to write the article, the students had spoken to Haywood on the phone, interviewed several of his associates in his home state of North Carolina, and read his campaign website.

On July 24, 2012, Haywood filed a pro se lawsuit for libel against St. Michael's College, Spillane, and Hardy, alleging that the profile of his candidacy contained false statements about his policy positions, and that this profile injured his reputation and reduced his chances of winning the election. He identified sixteen allegedly false statements, including that Haywood had offered "a solution to global warming which is to spray particles into the atmosphere as a way to reflect the sun's heat back into space, which, in his opinion, would cool the earth." Haywood denied that he ever claimed to have the solution to global warming. Instead, he identified particle insertion as "one of the most promising areas for research" into how to cool the planet.

Haywood also claimed that the students' efforts to contact his associates in North Carolina for comment were evidence of malice, because Haywood was trying to keep his candidacy a secret from his associates. The students' actions harmed him, he asserted, because they informed his friends and family, many of whom are Republicans, that he was running for president in a Democratic primary.

Haywood sought $120,202.15 to fully reimburse his advertising costs, an additional $1,000,000 in damages for the reputational injury he suffered in his community, and $50,000,000 in punitive damages.

The students and the college filed special motions to strike under Vermont's state anti-SLAPP statute, 12 V.S.A. § 1041. Both the students and the college argued that the lawsuit fell within the statute's scope, as "a suit arising from the defendant's exercise, in connection with a public issue, of the right to freedom of speech." 12 V.S.A. § 1041(a). The students' brief argued that that the fact that Haywood was running as a Democrat in New Hampshire is both undisputed and public, and therefore should not form the basis of a libel claim, and that the other claims of falsity were "quibbles and nitpicks." Both briefs argued that the suit was an improper attempt by the plaintiff to prevent the description of his policy stances in a manner he did not approve and asked the court to dismiss the libel claims and award costs and reasonable attorney's fees for all work associated with litigating the claims.

Haywood filed a response opposing the special motions to strike, arguing that it was the defendants who had had violated his First Amendment rights. Specifically, he claimed that the defendants infringed his right to expression by publishing a profile which may have led to "untold multitudes" not to read his webpage. Haywood further stated that the defendants had "no right to appeal an interlocutory order dismissing the motion under 12 V.S.A. section 1041 (g) as the federal courts of appeal are governed by the Interlocutory Appeals Act."

The college replied to Haywood's response, noting that the motion to strike "is not an appeal and § 1041(g) is not relevant at this time." However, the college argued that, "to the extent Plaintiff is arguing that 12 V.S.A. § 1041 is a state statute that incorporates aspects of state procedure, the District Court for the District of Vermont has already ruled that this is no bar to bringing an anti-SLAPP motion to strike in federal court," citing to Bible & Gospel Trust. 1:07-CV-17, 2008 WL 5245644 (D. Vt. Dec. 12, 2008).

On Sept. 26, 2012, St. Michael's college filed a motion to dismiss. The motion argued for the application of North Carolina defamation law, because the alleged defamation constituted an "aggregate communication," as it was published online, and Haywood was domiciled in North Carolina at the time of publication. The college further argued that, as a matter of law, the profile was not libel per se under North Carolina law, because all of the disputed statements, when considered on their face, and without reference to the context surrounding the publication, were simple descriptions of policy positions which did not subject Haywood to ridicule or disgrace.

The college also argued that, even if Vermont or New Hampshire law applied, the defendants' statements would not be defamatory, because they would not tend to lower the plaintiff in the esteem of a respectable group of people.

Finally, the college argued that Haywood is a public figure and therefore must show that the defendants acted with actual malice, knowing the statement was false or acting with reckless disregard for the truth. Haywood could not show actual malice, it argued, because the complaint contained nothing more than "naked assertions " that did not constitute even a "bare factual showing that the Defendant purposefully acted without concern for the truth."

The students also filed a motion to dismiss, which the college joined. The students' motion noted that the only evidence of actual malice cited in Haywood's brief was an allegation that the students interviewed his associates in North Carolina "for one purpose only: pressuring the Plaintiff from continuing his campaign." The students argued that these interviews were not evidence of malice, but were part of standard journalistic practice. The students also argued that the complaint did not allege injury for which damages could be awarded, arguing that "[i]t is not a reasonable inference nor reasonably foreseeable nor a proximate cause that a St. Mike's freshman journalism class assignment actually derailed a fringe candidate's campaign to unseat an incumbent President."

Following Haywood's filing of an amended complaint, which further addressed the embarrassment allegedly caused by the statements at issue, both the students and the college renewed their motions to dismiss and their motions to strike.

Haywood responded to the renewed motions, reiterating his prior arguments and alleging that the special motions to strike were frivolous and intended to delay and that costs should be awarded if he was required to travel to a hearing on the Motion to Strike.

On December 14, 2012, after supplemental briefing on the anti-SLAPP provision, the court issued an opinion and order granting the defendants' renewed motions to dismiss the amended complaint for failure to state a claim and defendants' special motions to strike under Vermont's anti-SLAPP statute. The Court awarded the defendants costs and reasonable attorney's fees.

In evaluating the 12(b)(6) motions to dismiss, the court ruled that Vermont law indicated that the law of the state where the plaintiff was domiciled controlled. However, it noted that special damages can occur in more than one jurisdiction. It therefore ruled that Haywood could seek damages for the loss of the election under New Hampshire law, and for his reputational injury under North Carolina law. However, the court determined that Haywood's claim must be dismissed under either North Carolina or New Hampshire law.

The court held that Haywood failed to state a libel claim because: (1) his claim did not satisfy the elements of libel under North Carolina law; (2) his claim did not establish the state of mind or injury elements of a libel claim under New Hampshire law; and (3) his claim did not establish that the profile was written or published with actual malice.

The court held that the profile was not libel under North Carolina law because it did not impugn the plaintiff's character, finding that the policy positions described in the profile were, in many cases, "simply a hair's breadth away from Plaintiff's true position," and not "so outlandish" that they would expose him to public hatred, contempt, or ridicule. The court also found that Haywood had not identified any contextual elements that would alter a reader's understanding of the profile and provided "no factual underpinnings to his conclusory allegation that the student Defendants intended to defame Plaintiff." Rather, the court found that the "students had a contrary motive, as they submitted the Profile in fulfillment of an assignment in journalism, a profession that relies on factually accurate reporting. They had nothing to gain, and a grade to lose, by writing falsehoods." Finally, the court concluded that "[d]amages are particularly "speculative and uncertain" in this case, given that Plaintiff lost the election by a significant vote ratio (more than 116 to 1)." Aycock v. Padgett, 516 S.E.2d 907, 910 (N.C. Ct. App. 1999) ("[t]he notion that the loss of an election constitutes special damages for which a court may grant relief is far too speculative and uncertain to entertain.").

The court also held that the profile was not libel under New Hampshire law, because New Hampshire law requires the plaintiff to demonstrate an injury to his reputation, and the only reputational injury Haywood alleged was that his friends and family discovered that he was running as a Democrat.

The court also found that Haywood failed to satisfy his burden to prove the students' state of mind. A New Hampshire plaintiff can only recover compensatory damages if he shows the defendants were negligent, and Haywood did not allege negligence. The court likewise found that Haywood could not meet the heightened standard for defamation that applies to public figures under the First Amendment. The court noted that, as a person running for the highest public office in the country, Haywood was a public figure for purposes of defamation law and needed to establish by clear and convincing evidence that a defamatory falsehood was made with actual malice. His allegations that the students contacted his associates to pressure him into ceasing his campaign did not rise above a speculative level, as there was "no immediately apparent reason why the student Defendants would have such a motivation." The court concluded that Haywood was conflating the actual malice standard with malice in the colloquial sense and overlooking the fact that the reckless disregard standard is subjective and requires an assessment of the defendant's actual state of mind.

The court then turned to the motions to strike under Vermont's anti-SLAPP law. The court noted that some federal courts have decided that state anti-SLAPP provisions conflict with the Federal Rules of Civil Procedure and have therefore declined to apply them in federal court. However, the District Court followed the District of Vermont's earlier holding in Bible & Gospel Trust that there is no direct conflict between the Vermont anti-SLAPP statute and the Federal Rules, and that "the state interest outweighs any federal interest."

In evaluating the merits of the anti-SLAPP motions, the court looked primarily to California precedent interpreting an analogous anti-SLAPP provision, because the Vermont Supreme Court had not interpreted the Vermont anti-SLAPP statute.

The court concluded that the defendants met their threshold burden of proving that their conduct is protected by the anti-SLAPP statute because (1) the profile was published in a public forum, and (2) the publication was in furtherance of the students' right to free speech and involved speech concerning a public issue. Citing CA law, the court found that "[a]n Internet website that is accessible to the general public ...is a public forum." Cole v. Patricia A. Meyer & Associates, APC, 206 Cal. App. 4th 1095, 1121 (Cal. App. 2d 2012).

The court also found that "it is clear that the writing of the profile was an exercise of the students' freedom of speech." It noted that California courts have identified three categories of speech concerning a public issue: (1) the subject of the statement precipitating the claim was a person or entity in the public eye; (2) the statement precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; and (3) whether the statement or activity precipitating the claim involved a topic of widespread public interest." Wilbanks, 121 Cal. App. 4th at 898.22. The students' speech concerned a public issue under all three definitions: (1) as a candidate for President, Haywood was in the public eye; (2) Haywood's candidacy had the potential to affect large numbers of people; and (3) the election (and each issue addressed in the profile) was a topic of widespread public interest.

Finding the Plaintiff's burden satisfied, the court then considered whether the plaintiff could prove that: (1) the defendant's exercise of his or her right to freedom of speech was devoid of any reasonable factual support and any arguable basis in law; and (2) the defendant's acts caused actual injury to the plaintiff. The court found that Haywood failed to make that showing.

The statements in the profile had reasonable factual support, according to the court, because they were quite similar to the statements on Haywood's campaign website. The court further found that defendants' speech had a "decidedly firm basis in law" because, as it ruled in granting the defendants' motions to dismiss, Haywood's claim was not legally sufficient. Finally, court found that the actual injury Haywood alleged was "highly speculative, considering that he lost the primary by an overwhelming margin; the Profile was published only on the St. Michael's College website; and Plaintiff's alleged reputational injury derived primarily from a true statement contained in the Profile."

Finally, the court held that the defendants were entitled to the entirety of their attorney's fees and costs, not just those relating to the litigation of the anti-SLAPP motions. The court's analysis of Vermont law governing other fee shifting provisions led him to conclude that the Vermont courts would interpret the fee-shifting clause broadly. The court held that the legal work on the various motions was "inextricably linked," and "severance of the work ... is untenable." Finally, the court held that this interpretation of the fee shifting provision advanced "the policy of the anti-SLAPP statute, as it guarantees that costly litigation will not chill protected expression."

Haywood filed a notice of appeal pro se on Jan. 2, 2013.

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Lawsuits by Doctor, Dentist Over Patients' Reviews Dismissed

A doctor in New York and a dentist in Oregon have both found out that it may not be easy to sue for libel over online reviews of their services, after their separate lawsuits were both dismissed. And it turns out that most of the dentists and doctors who have sued over online reviews have reached similar results.

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Jurisdiction: 

Filler, et al. v. Walker, et al.

Date: 

05/31/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Susan Walker; Does 1-25

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of California: County of Los Angeles, Central District

Case Number: 

BC462605

Verdict or Settlement Amount: 

$50,259.60

Legal Counsel: 

Niloo Savis

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

Dr. Aaron Filler filed a complaint against former patient Susan Walker in Los Angeles Superior Court on May 31, 2011. In his complaint, Filler alleged defamation and interference with prospective economic advantage in response to Walker's review of Dr. Filler on a physician rating site. 

On August 24, 2011, Walker filed a motion to strike based on California Code of Civil Procedure §§ 425.16 and 45, California's anti-SLAPP statute. Walker's motion argues that Walker is shielded from liability as the "dissemination of consumer information about medical care is a vital ‘public issue' and the internet is a ‘public forum,' and that Dr. Filler is a public figure subject to the burden of proving actual malice. Filler filed an opposition to this motion on September 16, 2011, also requesting leave to amend the complaint to plead more specific factual allegations to establish actual malice. Walker replied to Filler's opposition on September 22, 2011.

After a hearing on April 19, 2011, Walker's motion to strike was granted. In the order filed on May 8, 2012, Judge Elizabeth White held that Filler's claims arose from Walker's act of free speech in connection with a public issue under CCP § 425.16 and that Filler did not establish a probability of prevailing on these claims. In accordance with this order, Judge White later ordered Filler to pay $50,259.65 to Walker for attorneys' fees and costs. 

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Beaverton Grace Bible Church v. Smith

Date: 

02/22/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Julie Anne Smith; Hannah Smith; Kathy Stevens; Jason Stephens; Meaghan Varela

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Circuit Court of the State of Oregon: Washington County

Case Number: 

C121174CV

Legal Counsel: 

Linda K. Williams; Herbert G. Grey

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

On February 22, 2012, O'Neal and the Beaverton Grace Bible Church filed a complaint in the Circuit Court of the State of Oregon for Washington County against Julie Anne Smith, her daughter, and two other blog commentators (the Stephens), alleging defamation and requesting $500,000 in damages arising out of critical comments on the Church's Google reviews page and Smith's blog.

According to the complaint and news sources, Julie Anne Smith and her family were congregants at Beaverton Grace Bible Church for several years when one of the church's employees was dismissed in late 2008. The Smiths met with Pastor O'Neal to express their concerns about this situation and were later allegedly instructed to recant these concerns. The Smiths did not do so and stopped attending church services.

Later, after Oregon police began investigated allegations of child molestation against the Pastor and church, Pastor O'Neal "excommunicated" the Smiths. In response, starting in early 2009, Julie Anne Smith posted her concerns on the Google review page for Beaverton Grace Bible Church, and when these were taken down, she began a blog called Beaverton Grace Bible Church Survivors. Her comments and blog expressed opinion that the church was a "creepy" and unsafe environment and condemned O'Neal for his "extra-biblical legalistic teaching[s]" and allowing a known sex offender into the church. This blog received many similar comments, such as those by the Stephens.

In response, O'Neal and the Beaverton Grace Bible Church filed the complaint in this action. On April 26, 2012, the defendants filed a special motion to strike the defamation claim under Oregon's anti-SLAPP statute. This motion also asserted as defenses that: the speech was comprised of protected opinion; the church and Pastor O'Neal are public figures and there is no evidence of actual malice; and the church autonomy doctrine applies.

On the same day, Beaverton Grace Bible Church and O'Neal filed an amended complaint. An additional defendant, Meaghan Varela, was added for her comments on Smith's blog, and more allegedly defamatory speech on the blog was identified. Accordingly, on May 1, 2012, the defendants filed a second special motion to strike in response to the additional allegations of the amended complaint, as a supplement to their first motion. On May 14, Beaverton Grace Bible Curch and O'Neal opposed the motions to strike and filed a declaration by a congregant to demonstrate that the allegation of allowing a known sex offender access to the church was a false statement.

Update:

On July 23, 2012, the court granted the defendants' special motion to strike. The court found that the statements made were on "issues of public interest," that several of the statements were not provable assertions of fact, and that the balance were pure opinion. The court awarded $16,750 in attorney's fees to defendants  Kathy Stephens and Jason Stephens, and invited defendants Julie Ann Smith, Hannah Smith, and Meaghan Varela to submit statements for fees.

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CMLP Notes: 

KMB created

AFS edited to include motion to dismiss 7/27 AFS

Originally submitted by OMLN attorney Linda Williams, who represents some of the parties.

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Nevada Needs A Revised Anti-SLAPP Statute, But The Ninth Circuit Gives Us Some Daylight

As a lawyer licensed in five states (MA, FL, CA, AZ, and NV) and who practices free speech law nationwide, I am in a position to comment on the relative merits of various states' views on First Amendment principles. Among the many states where I have worked on cases, Flori-duh is the worst. Hands down.

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Art of Living Foundation v. Does 1-10

Date: 

11/05/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John or Jane Doe ("Skywalker"), John or Jane Doe ("Klim")

Type of Party: 

Large Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court, N.D. California, San Jose Division

Case Number: 

10–CV–05022–LHK

Legal Counsel: 

Joshua Koltun

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)
Settled (partial)

Description: 

Substantive Proceedings

The Art of Living Foundation is an international nonprofit organization that, according to its website, is "engaged in stress-management and service initiatives." Two former followers, Skywalker and Klim, published anonymous blogs (entitled "Leaving the Art of Living" and "Beyond the Art of Living") criticizing the Art of Living's practices and their leader, Sri Sri Ravi Shankar. In addition to their critiques, they also provide excerpts from the Art of Living's teaching manuals and other materials (normally provided to members in courses for a fee).

On August 14, 2010, Skywalker and Klim received a demand from Art of Living (from its headquarters in India) to take down this material. The branch of Art of Living in the United States (based in California) also filed a complaint on November 5, 2010, in the U.S. District Court for the Northern District of California. Art of Living alleged copyright infringement under federal law for the blogs' publication of portions of the "Breath Water Sound Manual." In addition, Art of Living alleged misappropriation of trade secrets, defamation, and trade libel under California law, based on the aforementioned publication and the Does' critical statements about the organization.

On January 31, 2011, the Does filed a motion to dismiss the defamation and trade libel claims for failure to state a claim. They also filed a special motion to strike the defamation, trade libel, and trade secrets claims under California's anti-SLAPP statute. Art of Living filed both an opposition to the motion to dismiss and an opposition to the motion to strike on March 17, 2011, to which the Does replied (reply re: motion to dismiss; reply re: motion to strike) on April 6, 2011. After a hearing in May, on June 15, 2011, U.S. District Judge Koh dismissed the defamation and trade libel claims and denied (without prejudice) the motion to strike. Judge Koh found that the statements at issue were opinions rather than assertions of fact, resolving the defamation claim, and that Art of Living did not sufficiently allege harm or damages for the trade libel claim. Judge Koh also held that discovery on the trade secrets claim could not proceed until Art of Living identified the trade secrets with reasonable particularity.

On July 14, 2011, Art of Living proceeded to amend their complaint in accordance with the June 15th order, removing the dismissed claims from their complaint. Art of Living also provided further detail and content identification in regards to the remaining copyright infringement and trade secrets claims. The Does answered the amended complaint on July 28, 2011.

The Does then filed a second special motion to strike on September 12, 2011 (with the redacted version entering the docket on January 9, 2012), this time directed at the remaining trade secret claim. This motion was opposed by Art of Living on September 29, 2011. Additionally, on September 27, 2011, the Does filed a motion for summary judgment on the copyright infringement claims. Art of Living filed an opposition to this motion on October 11, 2011, which the Does replied to on October 24, 2011. 

In an order on May 1, 2012, Judge Koh granted summary judgment on the copyright infringement claim. Judge Koh found that Klim was entitled to summary judgment based on noninfringement, and that Art of Living did not provide enough support for its claim of authorship of the manual to pursue a copyright infringement claim against Skywalker because the copyright registration certificate was obtained after the litigation began). The district court also granted Klim's motion to strike the trade secrets misappropriation claim while denying the motion to strike in regards to Skywalker. While Skywalker conceded that there was at least some overlap between his blog postings and the materials Art of Living designated as trade secrets, Art of Living presented no evidence that Klim misappropriated any of these materials.

Anonymity in Art of Living v. Does

Throughout the proceedings described above, there was an ongoing issue with respect to the defendants' ability to proceed anonymously.

On November 9, 2010, Art of Living filed a motion for leave to take expedited discovery. Pursuant to an ex parte order by Magistrate Judge Beeler, on December 20, 2010, Art of Living subpoenaed Google and Wordpress to reveal the identities of bloggers Skywalker and Klim. Not long after being notified of this by Google, the Does filed a motion to quash the subpoena. In response, Art of Living filed an opposition on March 22, 2011, and the Does replied on April 28, 2011. On August 10, 2011, Magistrate Judge Lloyd denied the motion to quash in regards to Skywalker's claim while granting it for Klim, finding that the copyright claim was a sufficient basis for permitting identification of Skywalker.

In response, on August 24, 2011, Skywalker filed a motion for relief from the order of the Magistrate Judge regarding the motion to quash. On August 31, 2011, Public Citizen, joined by the Electronic Frontier Foundation and the ACLU, submitted an amicus brief. This brief urged the court to apply the balancing test adopted in Dendrite Int'l v. Does, despite the copyright claim being considered in the case. Art of Living's opposition to the motion for relief was filed on September 16, 2011, and Skywalker replied on September 30, 2011.

On November 9, 2011, Judge Koh granted the motion, finding that Skywalker's First Amendment right to anonymous speech outweighed Art of Living's need for discovery at this time. Judge Koh applied the Highfields Capital two-part test (which relied heavily on Dendrite) for determining whether to allow discovery seeking the identity of an anonymous defendant: "(1) The plaintiff must produce competent evidence supporting a finding of each fact that is essential to a given cause of action; and (2) if the plaintiff makes a sufficient evidentiary showing, the court must compare the magnitude of the harms that would be caused to the competing interests by a ruling in favor of the plaintiff and by a ruling in favor of the defendant."

In a case management conference and corresponding minute order on May 9, 2012, Judge Koh again denied all of Art of Living's motions to disclose Skywalker's identity. By also refusing to extend discovery a setting the trial date and length, these rulings potentially allowed Skywalker to defend at trial anonymously.

Related Case and Settlement

On June 8, 2012, Judge Koh granted Art of Living's motion to relate Art of Living Foundation v. Eng-An Chou (Docket no. 5:12-CV-02748-LHK) to this case. Chou involves Art of Living's claim that Eng-An Chou breached her contracts with Art of Living by disclosing some of the organization's confidential texts to Skywalker for posting on his blog.

The next week, the cases were referred to Judge Joseph C. Spero for a Magistrate Judge Settlement Conference. The conference was held on June 12, 2012 and a settlement was reportedly reached. As part of the settlement agreement, Skywalker and Klim published a joint statement informing readers of the settlement and would proceed to freeze their blogs on June 19, 2012. The joint statement noted that there are no restrictions on the Does to create new blogs, and that no identity had or would be disclosed in relation to this litigation and settlement. Art of Living also agreed to drop the lawsuit with prejudice (also dropping the separate suit against Chou) and to pay Skywalker and Klim's attorney's fees.

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Anti-SLAPP Law in Arizona

Note: This page covers information specific to Arizona. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

A.R.S. § 12‑752 allows you to counter a SLAPP suit against you by filing a motion to dismiss. The statute also provides that the court shall grant the moving party costs and reasonable attorney fees, if the court grants the motion to dismiss.

Activities protected by the Arizona Anti SLAPP Statute

The Arizona anti-SLAPP statute applies to legal actions involving “a party’s exercise of the right of petition.” A.R.S. § 12‑751 defines “exercise of the right of petition” as

any written or oral statement that falls within the constitutional protection of free speech and that is made as part of an initiative, referendum or recall effort or that is all of the following:

Anti-SLAPP Analysis as Mind-Reading Exercise in Illinois

What IL Courts will need to decide SLAPP casesSo this case slipped by me when it first came down in January, but it raises my ire enough to come back to a bit late. It's Sandholm v. Kuecker, the Illinois Supreme Court's attempt to make sense of the state's anti-SLAPP statute, and it's an impressively terrible piece of work.

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Jurisdiction: 

Darm v. Craig

Threat Type: 

Lawsuit

Date: 

07/01/2011

Party Receiving Legal Threat: 

Tiffany Craig

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Multnomah County Circuit Court, Oregon

Case Number: 

1107-08823

Legal Counsel: 

Linda Williams

Publication Medium: 

Social Network

Status: 

Pending

Description: 

In July 2011, medical spa doctor Jerrold "Jerry" Darm sued blogger Tiffany Craig for defamation in Multnomah County Circuit Court in Oregon.  Darm alleged that Craig defamed him when she wrote about a 2001 disciplinary order against the doctor from the Oregon Board of Medical Examiners. 

Craig wrote on June 30, 2011, on her blog that Darm was reprimanded for demanding sex from a patient, and that Darm was required to have a chaperone when examining adult female patients.  The order in fact states that Darm touched and kissed the patient, from which the patient inferred Darm was seeking sex. The order did require the presence of a chaperone for Darm's treatment of adult female patients.  Craig did not mention that the order against Darm was lifted in 2009.

According to OregonLive.com, Craig moved in August to dismiss Darm's lawsuit under Oregon's anti-SLAPP laws.  Craig argued that "'the gist' of the blog entry is true and the statements, in context with a provided hyperlink to state medical board records, were opinions based on those facts." Craig also argued that Darm, as a prominent local doctor, is a public figure.  Darm argued that because he never treated Craig, his record is not a matter of public interest.

OregonLive.com also reports that the court ruled in September that the case is a matter of public interest, and that Twitter is a public forum.  A hearing is set for Oct. 20, when Darm will have to present a viable defamation claim.

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Subject Area: 

Priority: 

1-High

Jurisdiction: 

Sherrod v. Breitbart

Date: 

02/11/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Andrew Breitbart, Larry O'Connor, John Doe

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of the District of Columbia, Civil Division

Case Number: 

000157 11

Legal Counsel: 

Baker & Hostetler LLP (for Defendant O'Connor); Katten Muchin Rosenman LLP (for Defendant Breitbart)

Publication Medium: 

Blog
Micro-blog
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

On February 11, 2011, former United States Department of Agriculture official Shirley Sherrod filed in District of Columbia Superior Court a defamation lawsuit against Andrew Breitbart and Larry O'Connor, two individuals involved with the prominent conservative political blog BigGovernment.com. The complaint also names a John Doe defendant.

The complaint stems from a March 2010 speech Sherrod gave to the NAACP, and the defendants' subsequent treatment of that speech. On July 19, 2010, Breitbart posted on BigGovernment an edited video of Sherrod's speech, along with allegations that Sherrod carried out her USDA duties "through the prism of race and class distinctions." The complaint also discusses slides added to the video of the speech that allege that Sherrod "discriminates against people due to their race." Along with Breitbart's post discussing Sherrod's speech, the complaint also alleges that O'Connor posted the edited video to YouTube, and that the John Doe defendant provided Breitbart and O'Connor with the unedited video and assisted in editing it.

After the defendants' alleged actions, Sherrod left her job with the USDA; the complaint alleges that the White House asked for her resignation because of the edited video and ensuing media uproar. Sherrod's complaint alleges defamation (for the edited video, blog post, and a Twitter post promoting the video and post), false light, and intentional infliction of emotional distress, and also seeks punitive damages.

The defendants removed the case to the U.S. District Court for the District of Columbia. Sherrod responded by moving to remand, arguing that the other defendants knew that the John Doe lived in Georgia (where Sherrod lives), and that Doe's citizenship defeats federal diversity jurisdiction. The defendants opposed remand on the grounds that a John Doe defendant's citizenship is irrelevant for diversity-jurisdiction purposes.

On the same day (April 18) that they filed their opposition to remand, the defendants moved to dismiss, both pursuant to Federal Rule 12(b) and under the D.C. Anti-SLAPP Act. The Rule 12(b) motion argues improper venue (with an alternative request to move the case to California, where Breitbart and O'Connor live), as well as substantive grounds (that the blog post was non-actionable opinion, and that the edited video was an accurate depiction of Sherrod's speech). The anti-SLAPP motion incorporates the motion to dismiss in arguing that Sherrod cannot show that her claims are likely to succeed.

On May 19, Sherrod filed memoranda opposing both motions to dismiss. Her opposition to the anti-SLAPP motion argues, among other things, that the D.C. Anti-SLAPP Act was passed after the lawsuit began and does not apply retroactively, and/or that it does not apply in federal court. Her opposition to the Rule 12(b) motion argues both that venue in D.C. is proper, and that the defendants' comments are non-opinion and "indefensible." Sherrod also filed a reply in further support of her motion to remand. On June 3, the defendants filed replies in support of both motions to dismiss.

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At the Intersection of Anti-SLAPP and Anonymity

Slap! by Vermin Inc, on Flickr

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

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