SLAPP

The SLAPP-Happy Story of Rakofsky v. Internet

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

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Legal Guide Updated With D.C.'s New Anti-SLAPP Law

We're pleased to announce that we have updated the CMLP Legal Guide on the District of Columbia's anti-SLAPP law to incorporate its brand new anti-SLAPP statute that came into effect on March 31, 2011.  A SLAPP, or "Strategic Lawsuit Against Public Participation," is a lawsuit filed in retaliation for speaking out on a public issue or controversy.

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Colocation America v. Garga-Richardson (2nd Lawsuit)

Date: 

10/29/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Archie Garga-Richardson; Scamfraudalert.com; Does 1-25

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of the State of California, County of Los Angeles

Case Number: 

BC448509

Legal Counsel: 

Pro se

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

In October 2010, Albert Ahdoot and Colocation America, a company providing computer server co-location to companies operating on the Internet, sued Archie Garga-Richardson, the founder and operator of ScamFraudAlert.com, in California. The plaintiffs claimed that Garga-Richardson committed trade libel and both intentional and negligent interference with economic advantage against the company by posting statements on his website impugning the honesty of Ahdoot and Colocation America.

Garga-Richardson moved on February 4, 2011, to strike the lawsuit under California's anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16.  Garga-Richardson argued that the plantiffs' claims were really an attempt to bring a defamation lawsuit in the guise of trade libel and tortious interference claims.  Garga-Richardson further argued that the plaintiffs' conduct was a matter of public interest and his comments upon that conduct were an exercise of his right of free speech.  As the plaintiffs' claims stem from that exercise, he argued, their lawsuit was a SLAPP and should be struck.

The plaintiffs opposed the motion to strike, arguing that Garga-Richardson had filed his special motion to strike after the 60-day window for filing such a motion had closed.  The plaintiffs also argued that Garga-Richardson's motion was a de facto motion for summary judgment, and that he had not provided the statutory notice required for such a motion under California law.

On April 7, 2011, the court granted Garga-Richardson's special motion to strike.  The court wrote that while Garga-Richardson's motion was a day late, the court would exercise its discretion to consider and rule on the motion.

The lawsuit was the second filed by Colocation America against Garga-Richardson.  Details on the first case, filed in April 2009, are available here.

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CMLP Notes: 

Archie faxed us all the documents we posted. - AAB 4/29/11

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Messing with SLAPPs in Texas

Strategic lawsuits against public participation, or SLAPPs, are one of the most bullying types of litigation out there.  But while the majority of US states have enacted special anti-SLAPP statutes to discourage them, Texas - certainly known for doing things big - is currently considering what could be the strongest anti-SLAPP measure yet.

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Federici v Pignotti et al

Date: 

12/17/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

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

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

Virginia Eastern District Court, Alexandria

Case Number: 

1:2010cv01418

Legal Counsel: 

Amy Owen, Kirstin Zech, Sarah Bagley

Publication Medium: 

Blog
Forum
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

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

Update:

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

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

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

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First Amendment Alert! Author arrested for writing a book

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

I don't necessarily have a problem with that.

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

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

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

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

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"Fred Ross" Files Anti-SLAPP Motion Against Patterson City Attorney

A couple of weeks ago, my good friend and all-around First Amendment bad ass Marc Randazza called on a bunch of law bloggers to make March "Anti-SLAPP Month" in honor of Congressman Steve Cohen (D-TN)’s propos

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Could a National Anti SLAPP Law be on the Horizon?

Congressman Steve Cohen, D-TN is our First Amendment Bad Ass of the week.

Mr. Cohen introduced The Citizen Participation Act, a federal anti-slapp bill. The bill describes its purpose as follows:

To protect first amendment rights of petition and free speech by preventing States and the United States from allowing meritless lawsuits arising from acts in furtherance of those rights, commonly called ‘‘SLAPPs’’, and for other purposes.

It is about time.

SLAPP suits are all-too common and are a scourge on our legal landscape. Personally, they have been good for me, as I earn a significant income by defending these kinds of suits, but as much as I love money, I love free speech more (and I'm sure that I could sell that time elsewhere). A SLAPP suit is a "Strategic Lawsuit Against Public Participation." In other words, it is a lawsuit that some hosebag files against a critic -- not because he hopes to win anything, but because the mere filing of the suit is punishment enough for the critic. Lawsuits are expensive, and when a rich douchebag has plenty of money to spend on attorneys's fees, he can afford to sue a couple of critics, thus scaring the bejesus out of anyone else who might criticize him.

The Public Participation Project had this to say about SLAPPS:

Regardless of who is speaking and who is suing, everyone is losing when SLAPPs are allowed to continue. These meritless lawsuits clog the courts, waste resources and contribute to a general culture of litigousness. Instead of answering speech with speech, SLAPP filers answer speech with subpoenas and spurious claims.

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CMLP and Cyberlaw Clinic Call On Illinois Supreme Court to Preserve Broad Purpose of Citizen Participation Act

With the help of Harvard Law School's Cyberlaw Clinic, CMLP and a coalition of media and advocacy organizations submitted an amicus curiae brief to the Illinois Supreme Court this week, urging the court to reject two lower courts’ narrow i

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Dunne v. Lara

Date: 

05/22/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Charles Lara

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of the State of California, Santa Barbara County; Court of Appeal of the State of California, Second Appellate District, Division Six

Case Number: 

1267944 (trial level); B 210779 (appellate level)

Legal Counsel: 

Patric Weddle - Law office of Patric H.R. Weddle

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Description: 

In 2008, Dunne, the owner of a motorcycle repair shop in Santa Barbara sued Lara, a former customer, who published statements about the shop on DucatiSpot, a forum for Ducati motorcyle enthusiasts.  According to court documents, Lara allegedly posted comments falsely suggesting that the repair shop had been operating without required registrations and that it had been raided by the FBI.

Lara moved to strike the complaint under California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16).  The trial court denied the motion and Lara appealed.  On appeal, in November 2009, the California Court of Appeal, Second District, held that Lara's statements were not entitled to the protection of the anti-SLAPP statute because they were not connected to an issue of public interest.  The court reasoned that Lara's comments "expressed only personal dissatisfaction about a single service provider and were not connected to an ongoing discussion on an issue of broader public interest."  Dunne v. Lara, 2009 WL 3808345 (Cal. Ct. App. Nov. 16, 2009).

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1-High

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MagicJack, LP v. Boing Boing

Date: 

03/11/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Happy Mutants LLC

Type of Party: 

Organization

Type of Party: 

Organization

Court Type: 

State

Court Name: 

Superior Court of the State of California, County of Marin

Case Number: 

CV091108

Legal Counsel: 

Marc E. Mayer, Jill P. Rubin - Mitchell Silberberg & Knupp LLP

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

In March 2009, MagicJack, LP, the maker of an Internet telephone device and subscription service, sued the parent company of Boing Boing over a blog post by Rob Beschizza criticizing MagicJack's End-User Licensing Agreement (EULA) and various aspects of its website.

The post, published in April 2008 on Boing Boing Gadgets and titled "MagicJack's EULA says it will spy on you and force you into arbitration," notes how the MagicJack EULA purported to allow MagicJack to target ads at users based on their calls and required users to submit to arbitration. The post calls the targeted-ad provision a "systematic privacy invasion" and also makes fun of the visitor counter on MagicJack website, calling it "a fake, a javascript applet that increments itself automatically." Cory Doctorow republished the post on the Boing Boing home page under the title "MagicJack net-phone: swollen pustule of crappy terms of service and spyware."

MagicJack filed a lawsuit for defamation and "unfair competition" in California state court.  Boing Boing moved to strike the complaint under California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16).  In May 2009, the court granted the motion to strike.  It ruled that MagicJack's claims target protected speech activity because the statements "involve consumer information affecting a large number of persons" and that posting on the Boing Boing site "provides information about [MagicJack's] product not only to the 'substantial' number of people who have already purchased the device, but also to other consumers who might be considering purchasing such a device." 

On the merits, the court held that MagicJack had not established a probability of prevailing on its claims. Regarding the homepage counter, the court found that MagicJack's own evidence "shows that the counter is not counting visitors to the website." Regarding the EULA, the court found that Boing Boing's statements, read in context, did not imply that MagicJack was eavesdropping on its customers' calls.  Rather, the court found that Beschizza's statements expressed his non-actionable opinion that "analyzing phone numbers for purposes of targeted advertising amounts to 'spy[ing],' 'snooping,' and 'systematic privacy invasion.'"

On Boing Boing's motion for attorneys' fees, the court made MagicJack pay Boing Boing's fees in the amount of $52,754 and its costs in the amount of $1,221.03. In a post announcing the victory, Beschizza indicated that the award did not quite cover Boing Boing's costs, but they're nevertheless happy with the outcome, adding "we don't like being bullied, and we wanted the chance to tell anyone else threatened by this company what to expect."

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Denying Anti-SLAPP Coverage, Massachusetts High Court Draws Activist/Journalist Boundary

A ruling by the highest court in Massachusetts could impact the methods that activists use to advocate their causes, by setting a boundary between activism that is protected by the state's anti-SLAPP statute and factual reporting, which is not.

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Ness v. Rondberg

Date: 

03/19/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Terry Rondberg; Michelle DePalma

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of the State of California, San Diego County; California Court of Appeal, Fourth Appellate District - Division One

Case Number: 

No.37-2008-00052535-CU-DF-NC (trial level); D053855 (appellate level)

Legal Counsel: 

Carlos Negrete

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued
Material Removed

Description: 

Peri Ness, the founder of Synergy Yoga, filed a lawsuit in California state court against Terry Rondberg, a former student of Synergy Yoga, and Michelle DePalma, a former teacher there, after they created TruthAboutSynergyYoga.com.  According to an appellate decision in the case, the website accused Synergy Yoga of being a cult and Ness of being a cult leader.

The trial court granted Ness a temporary restraining order, which prevented Rondberg and DePalma from publishing and maintaining TruthAboutSynergyYoga.com. The website no longer hosts content, but promises to return.

Rondberg and DePalma filed a special motion to strike the complaint under California's anti-SLAPP statute (Code Civ. Proc., § 425.16).  The court denied the motion on procedural grounds.  Rondberg and DePalma appealed, and a California appellate court affirmed the trial court's ruling.

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CMLP Notes: 

EK - editing [11/05/09]

Priority: 

1-High

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Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty, USA Inc.

Date: 

06/03/2003

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Stop Huntingdon Animal Cruelty, USA, Inc.; Animal Liberation Front; David Agranoff; Kevin Kjonaas; Does 1 through 100

Type of Party: 

Individual
Large Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Superior Court of the State of California, San Diego County; California Court of Appeal, Fourth District

Case Number: 

GIC812248 (trial court); No. D042950 (appeal)

Legal Counsel: 

Christine L. Garcia - Animal Rights Law Office

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Injunction Issued

Description: 

Huntingdon Life Sciences (HLS) and one of its employees filed a lawsuit in California state court against Stop Huntingdon Animal Cruelty, USA (SHAC), the Animal Liberation Front (ALF), and animal rights activists associated with both groups.  The plaintiffs sought an injunction against protest activities at the HLS employee's home, and against posting information about demonstrations and identifying information about HLS employees on SHAC's website.

The Superior Court issued a preliminary injunction prohibiting SHAC from placing or maintaining on any website any information regarding any HLS employee or business associate, among other things.

SHAC moved to strike the complaint pursuant to California's anti-SLAPP statute, Cal. Code Civ. Proc. § 425.16. The trial court denied the motion because the issuance of a preliminary injunction indicated a likelihood of success on the claims.

On appeal, the California Court of Appeal reversed the Superior Court ruling on the anti-SLAPP motion and ordered it to dismiss a number of the claims, leaving others intact.

In addition, the appellate court ordered that the preliminary injunction be more narrowly tailored. According to the appellate court, the injunction improperly required removal of all references to HLS employees, including those in newspaper articles republished on the SHAC website. The court further explained that, while SHAC could be enjoined from publishing the names, addresses, other identifying information of HLS employees, or reports of illegal activity, SHAC must be allowed to publish legitimate news items about HLS and its employees.

It is not clear what happened after the case returned to the trial court.

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CMLP Notes: 

Under review HCF (10/19/2009)

Priority: 

1-High

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Massachusetts Supreme Judicial Court Hears Oral Argument in Anti-SLAPP Case

On Monday, the Massachusetts Supreme Judicial Court (SJC) heard oral argument in Fustolo v.Hollander, No.

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Advanced Armament Corp. v. Garner

Date: 

05/06/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Ian Hale Garner

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Oregon

Case Number: 

06:08-cv-06142

Legal Counsel: 

Michael H. McGean - Francis Hansen & Martin LLP

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

Advanced Armament Corp., a Georgia manufacturer of silencers for firearms, sued Ian Hale Garner in Oregon over statements he posted on Internet chat rooms for gun enthusiasts.  Advanced Armament brought suit in federal court in May 2008 seeking damages and injunctive relief for defamation and interference with contractual relations. In particular, Advanced Armament sought to prevent Garner from "making, stating, or posting any defamatory statements," including but not limited to statements about its "products, designs, customer relationships, business plans and contracts." Compl. ¶ 4.

Garner moved to strike the complaint under Oregon's anti-SLAPP statute, arguing that American Armament's claims arose out of written statements in a public forum concerning issues of public interest.  He argued that the chat rooms were public forums because "[i]n this case, anyone who is interested" in the topic "may in fact register and gain access," analogizing chat rooms to newspapers, magazines, and newsletters. Def.'s Reply Mem. in Supp. of Mot. to Strike at 3-4. Garner argued that his statements concerned an issue of public interest because the two chat rooms had "thousands of members each." Id. at 6. He also pointed out American Armament described itself as providing weapons to police departments and the U.S. government, making its activities a matter of public interest. Id. at 5.

American Armament countered that Garner was not speaking in the public interest when he made the statements because he had a relationship with one of its business competitors, which was also financing Garner's defense.  Pl.'s Supp. Brief in Opp. to Def.'s Mot. to Strike at 4.

The case proceeded to discovery before it was dismissed in April 2009 because the parties had reached a settlement.  

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CMLP Notes: 

Under review, HCF (10/14/2009)

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1-High

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CMLP and Cyberlaw Clinic Endorse Anti-SLAPP Protection for Staff of Media and Advocacy Organizations

On Thursday, the Citizen Media Law Project (CMLP) joined the American Civil Liberties Union of Massachusetts (ACLUM) and the Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Association in submitting an amicus curiae brief urging the Massachusetts Supreme Judicial Court to reverse a lower court’s decision in

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Jim Dolan Shows Why Anti-SLAPP Laws Are Good (And Why New York Needs a Better One)

Now, I am not from New York.  Thus, I don't know much about Jim Dolan, the owner of Cablevision, Newsday, Madison Square Garden, and the New York Knicks.  But the local press offers a sense of the man.  The New York Daily News said that he is "a little bit wacky, lashing out indiscriminately behind the scenes, speaking nonsense whenever he talks at all.&q

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Citing Anti-SLAPP Law, New York Court Dismisses Libel Case Against Unmasked Commenter

Long before Liskula Cohen's case brought online anonymity into the m

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