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Jones v. Dirty World, LLC

Date: 

12/23/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Dirty World Entertainment Recordings, LLC; Hooman Karamian; Dirty World, LLC; Dirty World Entertainment, LLC

Type of Party: 

Individual

Type of Party: 

Media Company

Court Type: 

Federal

Court Name: 

U.S. District Court, Eastern District of Kentucky

Case Number: 

2:09-cv-00219-WOB

Verdict or Settlement Amount: 

$338,000.00

Legal Counsel: 

Alexander C. Ward and Alexis B. Mattingly (Huddleston Bolen LLP) and David Gingras (Gingras Law Office, PLLC) (for defendants Hooman Karamian and Dirty World, LLC)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

On December 23, 2009, a Jane Doe filed a lawsuit in federal court. The plaintiff intended to sue TheDirty.com, alleging that a number of posts on the blog (self-described as a "reality blogger . . . all about gossip and satire") defamed her.

According to court documents, TheDirty operates through user-submitted posts. Readers of the site submit posts, and TheDirty's editor, Nik Richie, selects some of the submissions for publication on the site. Richie also adds one or two sentences of comment to each post.

The contested posts made a number of crude comments about the sexual affairs of the plaintiff, a Cincinnati Bengals cheerleader and schoolteacher. The posts made claims about the plaintiff's promiscuity, among other topics.

The complaint alleged that the posts made a number of false statements about plaintiff's sexual history, and included four counts: defamation, libel per se, false light, and intentional infliction of emotional distress. The plaintiff later filed an amended complaint, more specifically alleging the purported identity of the website's operator, and adding a second libel per se count (bringing the total to five).

Instead of suing the Arizona-based company that operated TheDirty.com, however, the plaintiff named a California company which operated a website called TheDirt.com. According to news reports, this led to a failure to serve the intended defendants. With the served defendant making no response, the plaintiff eventually moved for a default judgment, which was granted by the district court. The default judgment included an $11 million damage award, $10 million of which was punitive.

When the operator of TheDirty.com announced publicly that it had nothing to do with TheDirt.com, the plaintiff moved for leave to file a second amended complaint seeking to add the Arizona operator of TheDirty.com.  The plaintiff did not voluntarily vacate the $11 million judgment; instead, she indicated that she did not trust TheDirty.com's operator when it disclaimed a relationship with TheDirt.com, but wanted to be sure that all of the appropriate parties were named. The amended complaint included the same five counts as the first amended complaint.

Now identified and served, TheDirty moved to dismiss and made two arguments: that jurisdiction in Kentucky was lacking, and the CDA § 230 protected TheDirty. Since the plaintiff only alleged that TheDirty "published" the disputed material, as opposed to "creating" it, TheDirty argued that § 230's protections applied.

The plaintiff, in response, made a number of § 230 arguments. First, she argued that, by adding comments to the user-submitted posts, the operator of TheDirty became a "creator" of the content. Second, she argued that TheDirty was designed to "encourage" users to post defamatory material. Third, she argued that because TheDirty claimed ownership of user-submitted material, the site and its operators become "publishers."

After TheDirty submitted a reply, the court denied the motion to dismiss. The judge focused mainly on the jurisdiction questions, and only briefly discussed § 230, ruling that discovery was required before the § 230 question could be resolved. Shortly thereafter, TheDirty answered the second amended complaint.

Seven months later, TheDirty moved for summary judgment. The motion focused on two arguments: (1) that the disputed posts were submitted by users of the site, and (2) the comments that Richie added to the user-submitted posts were non-actionable opinion. At this point in the litigation, the plaintiff's real name appeared in the case caption.

The plaintiff responded, arguing that because Richie read each user-submitted post before approving it for publication on TheDirty, and because TheDirty encouraged "the development of defamatory material," § 230's protections did not apply. TheDirty then filed another reply, responding in detail to the idea that TheDirty "created" the posts at issue. TheDirty argued that § 230 caselaw was well-established, and that performing editorial/moderation functions did not suffice to make TheDirty the "creator" of the posts.

On January 10, 2012, the district court judge denied TheDirty's motion for summary judgment. The judge based his § 230 ruling on two cases: Fair Housing Council of San Fernando Valley v. Roommates.com, and Federal Trade Commission v. Accusearch. Taken together, according to the judge, these cases stood for the proposition that if a website "specifically encourage[s] development of what is offensive about the content" of the disputed post, § 230 provides no protection. The judge ruled that TheDirty's name and management style, combined with Richie's added comments to the post, meant that TheDirty encouraged the offensive content.

Updates:

05/09/12: The U.S. Court of Appeals for the Sixth Circuit granted Jones's motion to dismiss the TheDirty's interlocutory appeal of the district court's denial of their summary judgment motion. The Court of Appeals held that the denial of a motion to dismiss is not a final order, and that there were not sufficient interests at stake to hear TheDirty's appeal prior to final adjudication.

01/25/13: The first trial of the matter ends in a hung jury after two days of deliberation; the district court judge declared a mistrial.

07/11/13: After retrial, a jury awarded Jones $338,000 in damages.

08/12/13: The trial court denied the defendants' motion for judgment as a matter of law, again rejecting the application of Section 230 to the facts of the case. Based upon the legislative intent of Section 230 to encourage voluntary censorship of offensive content, the court held that the protection of the statute does not extend to intermediaries who actively encourage the posting of offensive material: "[T]he Act's text indicates that it was intended only to provide protection for site owners who allow postings by third parties without screening them and those who remove offensive content."

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

Blog Post

CMLP Notes: 

1/12/2012: Pulling it together; will be done first thing tomorrow (JS)

1/13: Ready for review (JS)

1/13: JH editing

Fraley v. Facebook

Date: 

03/18/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Facebook, Inc.

Type of Party: 

Individual

Type of Party: 

Large Organization

Court Type: 

Federal

Court Name: 

U.S. District Court, Northern District of California (removed from California Superior Court, Santa Clara County)

Case Number: 

5:11-cv-01726-LHK (subsequently 3:11-cv-01726-RS, after reassignment)

Legal Counsel: 

Cooley LLP (Michael G. Rhodes, Matthew D. Brown, Jeffrey M. Gutin)

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Description: 

On March 18, 2011, five plaintiffs (including two minors) sued Facebook in California state court. The plaintiffs claimed to represent the class of people injured by Facebook's introduction of a "Sponsored Story" system, through which Facebook turns certain types of user behavior (such as "liking" a company) into paid advertisements that include the user's name and/or picture.

The first amended complaint alleged three causes of action: (1) Facebook violated California's right of publicity statute, which protects against misappropriation of a person's identity for monetary gain; (2) the Sponsored Stories, being unlawful, fraudulent, and unfair, violated California's unfair competition law; and (3) Facebook's actions constituted unjust enrichment.

After Facebook removed to federal court, the plaintiffs filed a second amended complaint (which alleged the same three causes of action). Facebook then moved to dismiss, arguing that: (1) the plaintiffs lacked standing because they had failed to allege any actual monetary/commercial injury (because their names/likenesses lacked commercial value); (2) CDA § 230 protected Facebook because the Sponsored Stories constituted mere "editorial functions"; (3) Facebook's actions fell within the right of publicity law's exception for "newsworthy" content; (4) the unfair competition claims failed because Facebook does not charge its users; and (5) California does not recognize an unjust enrichment claim.

After the parties exchanged memoranda on the motion to dismiss, on December 16 the judge ruled in favor of the plaintiffs, with the exception of dismissing the unjust enrichment claim.

The court (Koh, J.) first rejected Facebook's standing and § 230 arguments. With respect to the standing issue, the court found that alleging a violation of the California statute constituted a concrete and particularized injury. The court rejected Facebook's § 230 claim because (according to the complaint) Facebook creates, at least in part, the Sponsored Stories, and such actions go above and beyond mere editorial functions.

With respect to the right of publicity claim, Facebook argued that the Sponsored Stories were "newsworthy" within the meaning of the statute because users are "public figures to their friends." The court disagreed, holding that the newsworthiness exemption does not apply to "commercial rather than journalistic" uses. The court went on to state, however, that the fact that users might be "celebrities to their friends" was sufficient to establish that the users had commercially exploitable names and likenesses protected under the statute. The court also ruled for the plaintiffs with respect to Facebook's argument that the plaintiffs consented to the Sponsored Stories by agreement to Facebook's terms of service, and ruled that Facebook's profiting from the Sponsored Stories sufficed to show actual damages (at least at the motion to dismiss stage).

The court rejected Facebook's challenge to the unfair competition claim, but dismissed the unjust enrichment claim, holding that unjust enrichment is not an independent cause of action in California but only a remedy or measure of damages on another claim. Thus, the main thrust of the plaintiffs' complaint remained: both the right of publicity and the unfair competition claims survived, while the independent unjust enrichment claim was dismissed.

Updates:

1/9/2012: Facebook answers the plaintiffs' second amended complaint.

3/16/2012: Facebook files a motion to consider relating a second civil action arising out of allegedly similar facts, E.K.D. v. Facebook, Inc. (a.k.a. C.M.D. v. Facebook, Inc.), No. 12-cv-01216. The second case involved, inter alia, allegations that Facebook was using the names and likenesses of minors who were incapable of giving consent under California law. The plaintiffs opposed the motion, raising concerns about delaying proceedings in Fraley. On March 21, 2012, Judge Koh allowed the motion and related the second case, directing that it to be assigned to her, but refused to consolidate the second case with Fraley because of the delays that would result.

3/29/2012: The plaintiffs file a motion to certify the class, which Facebook opposes. This motion is not acted upon by the Court for another four months (see entry below for 8/1/2012).

6/12/2012: The plaintiffs file a motion for preliminary approval of a class action settlement reached with Facebook and certify the class for settlement. (Only a redacted version of this document was originally available; an unredacted version was made available to the public on September 4, 2012.)  Among other things, the proposed settlement would require Facebook (1) to provide expanded notice to its users that they consent to use of their names and likenesses in Sponsored Stories advertisements, and requiring additional provisions obtaining consent from the parents or legal guardians of users under 18, (2) to pay up to $10,300,000 in attorneys' fees and costs, and (3) to distribute $10,000,000 to cy pres recipients nominated by the parties.  The proposed cy pres recipients include the Joan Ganz Cooney Center, the Center for Democracy and Technology, the Electronic Frontier Foundation, the MacArthur Foundation, the Campaign for Commercial-Free Childhood, the Consumers Federation of America, Consumers Union, the Berkeley Center for Law and Technology, the Center for Internet and Society at Stanford Law School, the Information Law Institute, the High Tech Law Institute, the Berkman Center for Internet and Society, the Consumer Privacy Rights Fund, Connect Safely, and Wired Safety.  [Disclosure: the Citizen Media Law Project is a project of, and hosted at, the Berkman Center for Internet & Society.]

6/22/2012: The plaintiffs in the related action move to intervene and to oppose the proposed class action settlement with Facebook, arguing that specific issues in the second case relating to the use of the names and likenesses of minors made it inappropriate to certify the plaintiffs in the related case as part of the settlement class. Both the plaintiffs in Fraley and Facebook opposed the motion to intervene, and the plaintiffs in the related case filed a reply brief.

7/3/2012: An individual claiming to be part of the settlement class files a pro se motion requesting that the Court add certain charities to the cy pres settlement.

7/11/2012: The Center for Public Interest Law and the Children's Advocacy Institute file an amicus curiae brief in opposition to the proposed settlement, arguing that the proposal does not protect minors in California in accordance with California law, and that the stipulated attorneys fees are excessive in light of the fact that the members of the class would receive no compensation.

On the same date, Judge Koh recused herself from the Fraley case without specific explanation. In a separate order, she clarified that she would nevertheless retain the related case,  C.M.D. v. Facebook, Inc., No. 12-cv-01216. The Fraley case is subsequently assigned to U.S. District Judge Richard Seeborg.

7/25/2012: The Court (Seeborg, J.) denies the motion of the plaintiffs in the related action to intervene as moot, stating that their motion to intervene itself raised the objections that they wished to raise, but granting them the right to argue in opposition to preliminary approval of the class settlement at a hearing scheduled for August 2, 2012. The Court also noted that, as putative members of the class in Fraley, they would also have standing to submit written objections and appear at a hearing on final approval if preliminary approval were granted.

8/1/2012: The Court issues an order on several pending matters, including: (1) denying without prejudice the plaintiffs' 3/29/2012 motion to certify the class, in order to take it off the court's calendar while settlement is pending; and (2) denying the 7/3/2012 motion to expand the list of proposed cy pres recipients.

On the same date, Facebook filed a brief in response to the 7/11/2012 amicus brief from the Center for Public Interest Law and the Children's Advocacy Institute.

8/2/2012: The Court holds a hearing on preliminary approval of the class action settlement, which is taken under advisement.

On the same date, the Electronic Privacy Information Center, the Center for Digital Democracy, Consumer Watchdog, the Privacy Rights Clearinghouse, and a group of privacy-oriented parties file letters with the Court opposing the settlement as insufficient and/or seeking to add additional privacy-oriented organizations to the list of cy pres recipients.

8/17/2012: The Court denies the motion for preliminary approval of the class action settlement, without prejudice, stating that there are "sufficient questions regarding the proposed settlement that it would not be appropriate simply to grant the motion and postpone resolution of those issues to final approval[.]" Among other issues, the Court questioned (1) whether the size of the class is a sufficient justification for monetary relief limited to cy pres payments, (2) whether the $10 million in cy pres payments was an adequate proxy for an award of damages, (3) whether the $10 million figure for payment of attorneys' fees was appropriate, and (4) the specific nature of the injunctive relief that would be granted against Facebook. The Court directed that the parties respond directly to these issues on any renewed motion for approval of the class action settlement. 

8/31/2012: Facebook's brief in support of the motion for preliminary approval of the settlement rejected by the court is docketed. The brief asserted in support of the settlement that the plaintiffs' likelihood of success in the litigation is low based upon a wide range of defenses asserted by Facebook, including:

  • that Facebook's users consented, impliedly or expressly, to appear in Sponsored Content;
  • that plaintiffs cannot prove economic injury, or that such injury is de minimis;
  • that plaintiffs cannot base claims upon Sponsored Content that does not feature names or identifiable photographs, that is unrelated to "products, merchandise, goods or services," or that promotes news, public affairs, sports, political campaigns and other matters in the public interest;
  • that Facebook's republication of user comments was protected by the First Amendment and/or immunized by 47 U.S.C. s. 230; and
  • that the plaintiffs cannot establish that any of Facebook's conduct was unfair or fraudulent under California's unfair competition law.

As a result, Facebook argued that the proposed settlement provided concrete and immediate benefits to users that address the goals of the lawsuit, in a manner that was fair when balanced against the plaintiffs' likelihood of success and the extended effort that would be required to reach an uncertain result.

10/5/2012: The parties submit a proposed Amended Settlement Agreement and Release to the Court. According to the revised agreement, Facebook would commit to the following actions providing relief to the plaintiff class within six months of a final settlement:

  • revision to its Terms of Use to provide improved notice with respect to the Sponsored Stories program;
  • creation of a mechanism allowing users to view those aspects of their interactions and content on Facebook that have been displayed in Sponsored Stories, and to control which of these interactions and content are used in Sponsored Stories;
  • controls that allow parents to prevent the use of minors' names and likenesses in Sponsored Stories, and an automatic block of such use for minors who state that their parents do not use Facebook;
  • additional information for parents about how advertising works on Facebook; and
  • good faith efforts to cooperate with plaintiffs' counsel to identify and to correct information appearing on Facebook that incorrectly or insufficiently describes how advertising on Facebook works.

In addition, Facebook would agree to pay twenty million dollars ($20,000,000) into a settlement fund. From this settlement fund, authorized claimants from the plaintiff class would be entitled to a one-time payment of $10 each, with the remainder distributed to cy pres recipients on the following schedule: Center for Democracy and Technology (10% of cy pres distribution), Electronic Frontier Foundation (10%), MacArthur Foundation (10%), Joan Ganz Cooney Center (10%), Berkman Center for Internet and Society (Harvard Law School) (6%), Information Law Institute (NYU Law School) (6%), Berkeley Center for Law and Technology (Berkeley Law School) (6%), Center for Internet and Society (Stanford Law School) (6%), High Tech Law Institute (Santa Clara University School of Law) (6%), Campaign for Commercial-Free Childhood (6%), Consumers Federation of America (6%), Consumer Privacy Rights Fund (6%), ConnectSafely.org (6%), and WiredSafety.org (6%).

However, if payment of $10 to each authorized claimant would exhaust the settlement fund, the proceeds of the fund would be distributed to authorized claimants pro rata -- unless the proceeds to each claimant would be less than $5, in which case the Court would have the discretion to order either that (A) the pro rata amount be paid to claimants or (B) the entire settlement fund be paid to the cy pres recipients in the amounts set forth above.

Plaintiffs' counsel would also be entitled to file a motion for payment of their reasonable attorneys' fees and costs out of the settlement fund, and the named plaintiffs would be entitled to payment of no more than $12,500 each out of the settlement fund as an incentive award for their participation in the case. The Court would retain discretion with respect to attorneys' fees and incentive awards, and a decision not to approve fees or incentives in any particular amount (or at all) would not affect the settlement. Any attorneys' fees or incentive awards would be deducted from the settlement fund before payments to members of the class are calculated, as would any costs of administrating the settlement fund.

10/25/2012: Facebook files a memorandum in support (only redacted version available) of the parties' joint motion for approval of the revised settlement, arguing that the settlement is fair in light of the plaintiffs' likelihood of success.

11/15/2012: The Center for Public Interest Law and the Children's Advocacy Institute file an updated amicus memorandum in opposition to the amended settlement, raising, inter alia, concerns about the opt-out (as opposed to opt-in) mechanism for parental consent proposed by the new settlement, the capacity of minors to agree to Facebook's terms of service, the ability of plaintiffs' counsel to adequately represent the interests of minors, and the risk of depletion of settlement funds through excessive attorneys' fees.

12/03/2012: The Court grants preliminary approval of the amended settlement agreement, stating that "[t]he Settlement Agreement appears to be the product of serious, informed, noncollusive negotiations and falls within the range of possible approval as fair, reasonable and adequate."

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

1/3/2011: In Progress; all docs collected, need to pull together summary. (JS)

Priority: 

2-Normal

Shawnee Mission East High School v. Sullivan

Date: 

11/21/2011

Threat Type: 

Disciplinary Action

Party Receiving Legal Threat: 

Emma Sullivan

Type of Party: 

Government
School

Type of Party: 

Individual

Publication Medium: 

Micro-blog

Status: 

Concluded

Description: 

The Shawnee Mission East High School in Kansas on Nov. 22, 2011, ordered Emma Sullivan, a student, to write an apology to Kansas Gov. Sam Brownback after Sullivan tweeted criticism of Brownback during a school field trip to the Kansas state capitol.

During a Kansas Youth in Government field trip on Nov. 22, Sullivan tweeted "Just made mean comments at gov brownback and told him he sucked, in person #heblowsalot." as a joke to her friends.  She did not actually speak to Brownback.

The next day, Shawnee Mission East Principal Karl Krawitz, who was notified of the tweet by members of Brownback's staff, called Sullivan into his office.  She told CNN that Krawitz told her that her tweet had embarrassed the school and the school district. He asked her to write an apology to Brownback.  Sullivan refused, citing her right to free speech and her parents' support.

After her situation came to media attention, the Shawnee East School District reviewed the situation.  The district determined that no apology was required and that no further action would be taken against Sullivan.  

On Nov. 28, 2011, Brownback also issued an apology, saying that "My staff overreacted to this tweet, and for that I apologize." The Associated Press reports that he said "Freedom of speech is among our most treasured freedoms."

Jurisdiction: 

Content Type: 

Subject Area: 

Priority: 

2-Normal

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

Date: 

01/31/2011

Threat Type: 

Police Activity

Party Receiving Legal Threat: 

Puerto 80 Projects, S.L.U.

Type of Party: 

Government

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court, Southern District of New York

Case Number: 

11-cv-3983

Legal Counsel: 

Durie Tangri LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

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

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

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

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

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

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

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

Jurisdiction: 

Content Type: 

Subject Area: 

Ingraham v. Gray

Date: 

08/18/2010

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Madeline B. Gray d/b/a NickerNews.net

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Maine Superior Court

Case Number: 

BELSC-CV-10-41

Legal Counsel: 

Preti, Flaherty, Beliveau & Pachios LLP

Publication Medium: 

Blog

Relevant Documents: 

Description: 

In August 2010, married couple Alexis and Brett Ingraham sued blogger Madeline Gray for defamation based on statements posted on Gray's website (NickerNews.net) and distributed via flyers. The Ingrahams' alleged that in a series of blog posts in 2010, Gray accused them of neglecting and abusing the horses at their farm, and that these statements were false and harmful to the Ingrahams' reputations, social standing, and profession.

Gray moved to dismiss the complaint on the grounds that the Ingrahams were being prosecuted by the Kennebec (Maine) County District Attorney for animal cruelty, attaching the State's complaints listing seven counts of animal cruelty. Gray argued that in light of the State's case, the Ingrahams had failed to assert sufficient facts to support their claim. The court rejected Gray's argument, asserting that the pending criminal action was not sufficient to "defeat the adequacy of [the Ingrahams'] allegations."

The Bangor Daily News reported in June 2011 that the Ingrahams had been convicted of six misdemeanor counts of animal cruelty. Subsequently, Gray moved for summary judgment in the defamation case based on a theory of collateral estoppel. According to Gray's Motion for Summary Judgment, "a criminal conviction conclusively establishes all facts essential to the conviction and is preclusive in favor of a third party in a subsequent civil action." The Ingrahams opposed the motion, arguing that the statements at issue in the case were broader than the issues in the criminal action, and that the nature of their guilty pleas in the criminal action was such that they were not precluded from arguing that the underlying factual allegations in that action were false.

Jurisdiction: 

Content Type: 

Subject Area: 

Pan Am Systems v. Hardenberg

Date: 

09/06/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Chalmers Hardenberg, C.M. Hardenberg, P.A., Atlantic Northeast Rails & Ports

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

U.S. District Court, District of Maine

Case Number: 

2:11-cv-00339-NT

Legal Counsel: 

Preti Flaherty Beliveau & Pachios, LLP

Publication Medium: 

Print
Other

Relevant Documents: 

Description: 

In September 2011, Pan Am Systems, Inc. (a railway transportation company), its subsidiary Springfield Terminal Railway Co., and its former President and CEO David Fink sued Atlantic Northeast Rails & Ports (ANRP) for defamation and false light. The complaint also named Chalmers Hardenberg as owner, editor, and publisher of ANRP and C.M. Hardenberg, P.A., as an owner and principal of ANRP. The complaint alleged that the defendants distributed false and defamatory information about the plaintiffs through newsletters and e-bulletins. Among the information cited in the complaint were discussions of Pan Am's service and reliability, a Springfield Terminal derailment, and David Fink's removal from Pan Am.

Defendants subsequently filed a motion to dismiss for failure to state a claim, arguing, among other things, that as to the defamation claim: (1) the statements were true; (2) all of the plaintiffs were public figures, and there were insufficient allegations to support a claim of actual malice; (3) there were insufficient allegations of negligence; (4) some of the challenged statements were non-actionable opinion; and (5) some of the statements were protected by the fair report privilege. With respect to the false light claim, defendants argued that the statements were not "highly offensive," as required for such a claim, that corporations are not entitled to bring false light claims in Maine, and that the complaint did not adequately plead fault.

Plaintiffs opposed the motion to dismiss claiming, among other things, that: they had pleaded the existence of false statements of fact; it was inappropriate to resolve conditional privileges on a motion to dismiss; the existence of actual malice was a factual matter to be resolved after discovery; the plaintiffs were, in any event, private figures; and the defendants' statements did not involve matters of public concern, such that a claim for presumed damages could proceed without a showing of actual malice. Plaintiffs also argued that the individual plaintiff, Fink, had adequately pleaded a false light claim.

Jurisdiction: 

Content Type: 

Subject Area: 

Live Tweeting from the ‘Restaurant of Broken Dreams’

When web developer Andy Boyle overheard a couple discussing their marital woes in a Burger King in Boston on Nov. 7, he immediately recognized the entertainment value and began tweeting a play-by-play.

Jurisdiction: 

Content Type: 

Subject Area: 

Tarek Mehanna and the Freedom for the Thought That We Hate

Suppose you and I are friends. We've grown up together. We've shared conversation; we've traded ideas. Now suppose that as I've gotten older, I've changed. In fact, I've become a zealot. One day I bring up the topic of suicide bombers. And, to your surprise, I actually sympathize with people who strap explosives to their chests and go looking for crowds of innocents.

Jurisdiction: 

Content Type: 

Subject Area: 

Apple, Inc. v. Odioworks, LLC

Date: 

11/01/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Odioworks, LLC

Type of Party: 

Large Organization

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of California (Oakland)

Case Number: 

4:09-cv-01818

Legal Counsel: 

Abhishek Bajoria, Matthew Mickle Werdegar, Melissa Jeanne Miksch, and Michael S Kwun of Keker & Van Nest LLP; Fred von Lohmann of The Electronic Frontier Foundation

Publication Medium: 

Wiki

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

In November 2008, Apple, Inc. threatened legal action against Odioworks, LLC, a corporation that operates public wiki site BluWiki, if Odioworks did not take down information published on BluWiki about how to use an iPod or iPhone with third-party software.   Odioworks complied with the takedown request, but filed a lawsuit on April 27, 2009, in federal district court in Oakland seeking a declaratory judgment to protect it from future threats from Apple.

After the judge rejected Apple's motion to transfer the case to the San Jose division, Apple withdrew its legal threats against BluWiki and Odioworks in July 2009.  Odioworks republished the previously removed information on BluWiki and agreed to dismiss its claims without prejudice.  The case was dismissed on August 11, 2009.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Source: Ars Technica

Priority: 

2-Normal

Why Blogs Can't Be Trusted, or: 'Statements Made Here Are Not Likely Provable Assertions of Fact'

The refrain that bloggers can't be trusted to produce accurate, factual information and reporting is a familiar one. Now, though, courts are beginning to give the cliche some legal bite. While in the short run those cases are wins for the individual bloggers involved, the bigger picture suggests that we shouldn't be too quick to celebrate.

Jurisdiction: 

Content Type: 

Subject Area: 

Obsidian Finance Group v. Cox

Date: 

01/14/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Crystal Cox

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

U.S. District Court, District of Oregon

Case Number: 

CV-11-57-HZ

Verdict or Settlement Amount: 

$2,500,000.00

Legal Counsel: 

Pro se

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)
Verdict (plaintiff)

Description: 

On January 14, 2011, Obsidian Finance Group, LLC, and Obsidian Senior Principal Kevin Padrick filed a defamation suit in Oregon federal court against blogger Crystal Cox. The complaint alleged that Cox had written a number of false and defamatory statements on her website, obsidianfincancesucks.com, and on "other websites." The statements quoted in the complaint involve "tax fraud," "fraud against the government," "hir[ing] a hitman," and other statements.

Obsidian moved for partial summary judgment, arguing that Cox's statements on her blog constituted defamation as a matter of law. Obsidian argued that because Cox had "no evidence to support the truth of any of her statements," the judge should grant summary judgment as to the question of liability, leaving the question of damages for trial. Padrick also filed a declaration denying the truthfulness of Cox's statements, and included copies of Cox's blog posts.

On May 4, 2011 Cox answered Obsidian's complaint, filed an opposition to Obsidian's motion for summary judgment, and made a number of counterclaims. Her counterclaims alleged conspiracy, harassment, and defamation.

After Obsidian and Cox traded another round of briefs on the summary judgment motion, and after Obsidian answered Cox's counterclaims, the judge ruled against Obsidian on the summary judgment question. The opinion focused on the fact that Cox's contested posts were "replete with scattershot, hyperbolic accusations," and that the "broad context" of the posts (including the name of the blog) meant that Cox's assertions were "less likely to be viewed as statements of fact." The judge also announced his intention to, sua sponte, grant summary judgment in favor of Cox. He then gave Obsidian two weeks to file a brief in opposition of this new summary judgment ruling.

Obsidian then filed an opposing brief; Cox did not respond. The judge then granted summary judgment for Cox as to all but one blog post. The judge wrote that "blogs are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact." He again found that the blogs' incendiary titles would cause readers to "view [the posts] with a certain amount of skepticism and with an understanding that they will likely present one-sided viewpoints rather than assertions of provable facts." The judge cited blogs' "setting and format," which create a "looser, more relaxed communication style" less likely to be seen as factual. Furthermore, the judge found that the "general tenor" of Cox's posts suggested that she had a "personal vendetta" against Obsidian, which "undermine[d] the reader's expectations" that Cox's assertions were factual.

The judge also described Cox's language – "a fanciful diatribe" – as undercutting a reader's expectation of factual information. And while certain statements from Cox's post could, in isolation, be seen as arguably factual, when "the content and context of the surrounding statements are considered," they would not be understood as assertions of fact.

The judge did deny summary judgment as to one post Cox made on another website, bankruptcycorruption.com. He found that because the post was removed from the less factual context of obsidianfinancesucks.com, read more like a "factual narrative," and contained some "fairly specific allegations," it would be possible for a fact-finder to read the post as asserting facts.

Obsidian then moved for summary judgment on Cox's counterclaims, and Cox filed a memorandum in support of her claims.

On October 14, 2011, Obsidian moved for sanctions against Cox, arguing that she had not been cooperating in discovery. 

UPDATES:

November 2, 2011: the district court allowed attorneys fees but denied further sanctions against Cox, and ordered Cox to comply with discovery requests. On November 9, Obsidian filed a motion to compel, requesting answers to multiple interrogatories and discovery requests. Cox objected, relying upon, inter alia, Oregon's right of retraction statute (O.R.S. § 31.215) and Oregon's media shield law (O.R.S. §§ 44.510–44.540). In a verbal order on November 28 the judge denied application of the right of retraction and shield law. 

November 29, 2011: The case went to a one-day trial. The jury in the case found for the plaintiff Obsidian for $1,000,000, and for Kevin Padrick for $1,500,000. The jury instructions for the case make no mention of a negligence or other fault requirement for defamation in Oregon, specifically stating that the defendant's knowledge of the statement's truth or falsity was irrelevant to the determination.

November 30: In a written order, the district court judge clarified his oral ruling from November 28. The judge noted that Oregon's right of retraction law applies only to statements made in print or broadcast media, and does not apply to Internet blogs. As for Oregon's media shield law, the court found that the law only applies to a person "conected with … any medium of communication to the public," and that the statute defines "medium of communication" as "any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system." The court declined to include blogs as part of that definition, and noted that even if it did, O.R.S. 44.530(3) states that the provisions of the shield law "do not apply with respect to the content or source of allegedly defamatory information, in civil action for defamation wherein the defendant asserts a defense based on the content or source of such information."

As for the substantive claim of defamation, the court rejected several First Amendment claims made by Cox. The court found that Obsidian and Padrick were not public figures as defined in New York Times v. Sullivan, that the jury did not have to find that Cox was negligent when publishing her statements under Gertz v. Robert Welch, Inc. because Cox is not a "media" defendant, and that the statements Cox made were not on a matter of public concern.

January 4, 2012: Cox filed a Motion for a New Trial and in the Alternative for Remittitur. The Motion argued that, for three separate reasons, the Court should grant a new trial. First, Cox argued that even if plaintiffs were treated as private figures, under Gertz the jury should have been instructed that she could be held liable for proven compensatory damages only if the jury found negligence, and for presumed damages only if the jury found actual malice. Second, Cox argued that because Kevin Padrick was a court-appointed bankruptcy trustee, he should be treated as a public official with respect to his duties. Third, she argued that a new trial or remittitur is required because the evidence presented did not support a finding of $2.5 million in damages.

January 11, 2012: Electronic Frontier Foundation ("EFF"), a non-profit digital rights organization, filed an amicus brief in support of Cox's Motion for a New Trial. In its brief, EFF supported Cox's arguments that the court should have instructed the jury to apply a negligence standard in order to find her liable for defamation, and that the damage award lacked evidentiary support. Additionally, EFF urged the court to reconsider its finding that Cox was not a "media" defendant. EFF argued that Oregon's retraction statute should be interpreted to include Internet publishers, because "Internet publication is no different ... than the broad publication methods identified in the statute." EFF also argued that Cox should be protected under Oregon's shield law, because she was "engaged in a medium of communication to the public."  EFF maintained that the court, in ruling against Cox on both issues, created an "unnecessarily hostile" environment for Internet speech.

January 30, 2012: Plaintiffs opposed Cox's motion for a new trial. Plaintiffs argue that any objection over the jury instruction is waived by a failure to timely object to the motion under FRCP Rule 51. Plaintiffs further argue that the minimum-fault rule in Gertz should not apply to this case, and that Oregon's shield law and retraction statute are inapplicable.

March 27, 2012: The district court denied Cox's motion for a new trial. The court first rejected Cox's argument that Padrick should be considered a "special purpose" public official. According to the court, private bankruptcy trustees do not qualify as public officials of any sort. The court also ruled that the "matter of public concern" category was not so broad as to encompass Cox's allegations.

The court next rejected Cox's argument, based on Gertz and other cases, that defamation defendants can only be held liable for compensatory damages if the jury finds negligence. After an extended discussion of Supreme Court case law, the district court concluded that "the question of what standard of liability to apply to a private plaintiff who sues a non-media defendant over allegedly defamatory statements made on a private issue, remains unanswered" as a matter of constitutional law. While the Supreme Court has repeatedly stated that media defendants receive no more First Amendment protection than other defendants, the district court stated that the Supreme Court has not yet "squarely held" that negligence is required in cases like Cox's.

After briefly disposing of EFF's arguments under Oregon's retraction statute and shield law, the district court also ruled that "the evidence supports the damages awarded to each of the plaintiffs," and denied Cox's motion on this ground as well.

March 30, 2012: Cox filed her notice of appeal to the 9th Circuit Court of Appeals.

April 24, 2012: Plaintiffs filed a notice of appeal. They appealed (1) the district court's order denying their motion for partial summary judgment and giving notice that it intends to grant summary judgment for the defendant, (2) the court's supplemental opinion denying their supplemental motion for summary judgment as to blog posts not previously submitted and granting summary judgment for the defendant with respect to all but one blog post, and, (3) the court's oral ruling ordering that their expert witness could not testify to the influence on buyers of derogatory statements appearing in a search engine results page.

October 10, 2012: Crystal Cox filed her opening brief. Cox argued, among other things, that she is entitled to a new trial because the district court gave faulty jury instructions on the fault standards applicable to her claim.

First, Cox asserted that Gertz applies to all public speakers, regardless of whether they are members of the institutional press. Therefore, she argued, even if the plaintiffs are private figures, the jury should have been required to find that she acted negligently in order to hold her liable for damages, and, in order to find her liable for presumed damages, the jury should have had to find that she acted with actual malice.

She further argued that her speech was on a matter of public concern, because allegations that a person is involved in crime generally constitute speech on matters of public concern, particularly allegations of fraud within a government program. She distinguished Dun & Bradstreet v. Greenmoss Builders, Inc. on the basis that her speech was (1) not solely in her interest or that of her specific business audience, (2) available to the public at large, (3) not solely motivated by desire for profit, and (4) not objectively verifiable.

She also argued that allegations of tax fraud by a court-appointed bankruptcy trustee do not lose their public concern status even if they deal with an incident that has not yet been a matter of public discussion. She argued that, as a matter of policy, it is unwise to grant lower protection to speakers unearthing a single instance of misconduct than to those covering a broader national problem or large-scale issue after particular misconduct is discovered. She notes that the absence of an existing controversy may be relevant to whether the plaintiff is a public figure, but not to whether the speech is on a matter of public concern.

Cox relied on dictum in Newcombe v. Adolf Coors Co. to argue that the Ninth Circuit has found Gertz to require a showing of negligence even in private concern cases, and therefore, even if she is found to have spoken on a matter of purely private concern and the plaintiffs are found to be private figures, the court should have instructed the jury that she was only liable if she was negligent.

With respect to the plaintiffs' status as private or public figures, Cox argued that a court-appointed bankruptcy trustee should be treated akin to a public official with regard to the performance of his duties, and that, under New York Times v. Sullivan, the district court therefore should have instructed the jury that the plaintiffs had to prove actual malice. She cited to several state court cases finding that when a court-appointee has government-delegated duties affecting citizens' money or property, those holding such positions should be considered public officials with regard to the performance of their duties. She further argued that that the protections of Sullivan apply to her, regardless of whether she was a member of the institutional media, citing several Supreme Court cases that have applied the case to non-media speakers.

October 17, 2012: The Reporters Committee for Freedom of the Press filed an amicus curiae brief in support of reversal. The Committee noted that the distinction between media and non-media defendants in private-figure libel suits creates heightened interest in broadly defining the term "news media."

Although the Supreme Court has interpreted Gertz to prohibit strict liability in state defamation laws only when the laws are applied to speech on matters of public concern, the Committee argued that it is unresolved whether Gertz is limited to media defendants and that several states do not apply Gertz to nonmedia defendants. This distinction, the Committee argued, makes the definition of "media defendant" critically important in libel cases.

As such, the Committee urged the court to interpret the term "media defendant" broadly enough to include any content provider who has the intent, when gathering information, to disseminate it to the public.

The Committee stated that the Supreme Court has long recognized that the definition of "press" does not depend on the medium of distribution and that many courts, including the Ninth Circuit, have held that testimonial privilege applies to individuals engaged in the practice of compiling information for public dissemination, regardless of their membership in the traditional press. According to the Committee, in the same way that an author's function, not the medium of publication, triggers a shield law's protection, an author's function should determine whether he or she could be classified as a member of the media entitled to the protections afforded by Gertz.

Finally, the Committee argued that courts must apply a broad definition of whether speech is in the public interest for purposes of establishing the standard of fault in libel cases. The Committee examined a number of Supreme Court and Ninth Circuit cases that demonstrate that, when evaluating speech's public nature, courts interpret public concern broadly and look to the "point" of speech by evaluating factors like the target audience and the speaker's motivation. In this case, the Committee argued that, by narrowly focusing its public concern analysis on speech that exposes public corruption, the lower court failed to comply with the broad principles outlined by the Ninth Circuit and the Supreme Court. Therefore, the Committee recommended that the Ninth Circuit reverse the lower court's ruling and remand for a more thorough assessment of whether Cox meets the public concern test under the proper constitutional standards.

October 17, 2012: SCOTUSblog filed an amicus curiae brief in support of neither party. SCOTUSblog stated that, while it takes no position on the merits of the dispute, it filed a brief to illustrate how the criteria for liability applied by the district court could generate incorrect results in the case of a blog that provides a public service and should receive First Amendment protections

The brief notes that SCOTUSblog could be subject to allegations of libel and defamation like those asserted in this case, because it publishes strongly worded critiques that may offend their subjects.

Moreover, SCOTUSblog asserted that it could not satisfy several of the criteria articulated by the district court, leaving it vulnerable to an adverse decision in a defamation case: only one of the blog's contributors has any training in journalism, the blog does not have media credentials or proof of affiliation with any recognized news entity, it does not as a general rule do any fact-checking, and it does not maintain notes of conversations, interviews, or research. Given that the court did not specify how many characteristics the defendant would need to posses to qualify for First Amendment protections afforded to "media," the blog expressed concern that it would not qualify. This risk of liability would, it argued, have a chilling effect on the content the blog posts, which will result in less complete coverage of the Supreme Court.

SCOTUSblog therefore requested that the Ninth Circuit establish that non-traditional news sources that provide a useful public service by gathering, analyzing, and disseminating information receive the same First Amendment protections afforded to traditional news sources, even if they cannot make the showings the district court outlined in this case.

December 7, 2012: The plaintiffs filed their response brief and cross-appeal. According to Obsidian and Padrick, Cox failed to preserve objections to the jury instructions at trial. The plaintiffs further argued that the trial court did not commit a plain error that warranted reversal despite Cox's failure to object, because "First Amendment protection of false speech [is] the exception, not the rule." Any error that did occur was harmless, plaintiffs claimed, because "Cox's undisputed conduct establishes negligence and a reckless disregard for the truth or falsity of [her] statements."

On cross-appeal, plaintiffs argued that the district court erred in finding that certain of Cox's blog posts were non-actionable opinion and granting Cox summary judgment on those blog posts. Plaintiffs noted that these posts, which purported to be "Truthfully Posted," asserted that the plaintiffs had committed numerous crimes, including fraud, bribery, money laundering, and possibly hiring a hit man. According to the plaintiffs, "[t]here is nothing figurative or hyperbolic about these accusations," and it "is not necessarily a reasonable assumption" that "reasonable readers will view blogs as inherently less reliable than other sources of information." Thus, they argued, the trial court should have left the question of whether these posts contained opinions to the jury.

February 4, 2013: Cox replied, arguing that, even under plain error review, the judgment below must be reversed because: Gertz applies to all public speakers; Cox spoke on matters of public concern; Gertz applies even to speech on matters of private concern; and Padrick was a public official for purposes of the Sullivan analysis. She also asserted these arguments were preserved for review because the trial court was "aware of Cox's position that she was entitled to First Amendment protections" and had rejected her objection earlier in the trial. Additionally, Cox argued that the district court correctly held that the other blog posts at issue were not libelous. Cox conceded that Internet speech "is not categorically immune from defamation liability," but, based on the context of the statements at issue, Cox claimed, "even the statements that might in isolation seem like factual assertions would be seen by reasonable readers as opinions."

January 17, 2014: The Ninth Circuit issued its opinion. The court held that "liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and actual damages."

The court, reviewing the judgment de novo, concluded that Gertz's protection for defendants in private defamation actions is not limited to institutional media defendants; the court held that a "First Amendment distinction between the institutional press and other speakers is unworkable" and constitutional protections cannot turn on the identity of the speaker-regardless of whether "the defendant was a trained journalist, formerly affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others' writings, or tried to get both sides of a story." The court noted that the Supreme Court has "repeatedly refused in non-defamation contexts to accord greater First Amendment protection to the institutional media than to other speakers," and that every other circuit to consider the question has found that Gertz applied broadly to non-institutional speakers.

The court did not decide whether Gertz is limited to speech involving matters of public concern, because it found that Cox's statements addressed such issues. The court stated that "[p]ublic allegations that someone is involved in crime generally are speech on a matter of public concern," and the allegations in this case "raised questions about whether [defendants] were failing to protect the defrauded investors because they were in league with their original clients." This allegation was not merely a matter of private concern because it was not "solely in the individual interest of the speaker and its specific business audience," was published at large, and was not "like advertising" and therefore "unlikely to be deterred by incidental state regulation."

The court refused to apply Sullivan's actual malice standard, however, holding that bankruptcy trustees are not "tantamount to public officials."

On the plaintiffs' cross-appeal, the court affirmed the district court's grant of summary judgment on the other blog posts at issue in the original suit. The court found that the "general tenor of Cox's blog posts negates the impression that she was asserting objective facts," and that the name of the website-obsidianfinancesucks.com-"leads ‘the reader of the statements [to be] predisposed to view [the blog posts] with a certain amount of skepticism.'" The court also relied on the fact that Cox's stream of consciousness-like sentences indicated that they were expressions of "feelings rather than assertions of fact." Cox's "consistent use of extreme language," including her assertion that one of the plaintiffs had hired a hit man to kill her, also weighed in favor of finding that the blog posts did not assert facts. Finally, the court held that the statements at issue were not "sufficiently factual to be proved true or false" because they were published on a "non-professional website containing consistently hyperbolic language."

The court remanded the case to the district court to conduct a new trial on the single post still at issue in compliance with Gertz, stating that the district court must instruct the jury that it cannot find Cox liable for defamation unless it finds that she acted negligently and that it cannot award presumed damages unless it finds that Cox acted with actual malice.

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

Blog Post

Antioch University v. The Antioch Papers

Date: 

02/29/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Brian Springer, Tim Noble, TheAntiochPapers.org, theantiochpapers@gmail.com

Type of Party: 

School

Type of Party: 

Organization

Legal Counsel: 

Robert J. Fitrakis

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Description: 

The Antioch Papers, an investigative journalism and media arts website, maintains and "open archive for primary source materials that document the institutional life of Antioch College and by extension Antioch University."  Source materials have been gathered through publicly accessible archives and through submissions by institutional whistle blowers.

On February 29, 2008, Antioch University sent a letter to The Antioch Papers demanding the removal of documents that the University alleged included attorney/client privileged communications and proprietary business and financial planning documents.

The Antioch Papers responded in a letter dated March 12, 2008, asserting a First Amendment right to publish the materials at issue.

No further actions on this dispute have been reported; the operations of Antioch College were suspended in July 2008, apparently rendering this demand moot.

 

Jurisdiction: 

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Subject Area: 

Health Reporters Unite! How One Doctor's Complaint Turned a Public Database Private

Kansas City Star reporter Alan Bavley had a hunch. After years of investigating the health care industry, Bavley began to suspect that state medical boards did not adequately discipline doctors who committed malpractice. Physicians battling substance abuse, for example, were punished far more harshly.

Jurisdiction: 

Content Type: 

Subject Area: 

Darm v. Craig

Date: 

07/01/2011

Threat Type: 

Lawsuit

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.

Jurisdiction: 

Content Type: 

Subject Area: 

Priority: 

1-High

Admission Consultants, Inc. v. McGraw Hill Publishing Co.

Date: 

08/22/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

McGraw Hill Publishing Co.; McGraw Hill News Bureaus

Type of Party: 

Organization

Type of Party: 

Media Company

Court Type: 

State

Court Name: 

New York Supreme Court

Case Number: 

Index No. 111503/07

Legal Counsel: 

No appearance

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Subpoena Enforced

Description: 

Admission Consultants, Inc. petitioned the New York Supreme Court to order McGraw Hill, publishers of the BusinessWeek "B-School" forums, to disclose the registration information of several BusinessWeek forum posters.  The posters allegedly defamed Admission Consultants in their posts.

On October 3, 2007, the New York Supreme Court ordered the disclosure of the posters' identities.  McGraw Hill disclosed the required information.  Two of the forum users had registered using Google's Gmail service, leading Admission Consultants to seek the identities of those users in a separate action.

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

Public Citizen

CMLP Notes: 

Source: Paul Levy of Public Citizen, via Phil Malone

Priority: 

2-Normal

Al Jazeera's Laudable Embrace of Creative Commons

Last week the Online News Association's annual conference came to Boston.  Naturally, many prominent news organizations showed up, tchotchkes in tow, to woo attendees – including Reuters, MSNBC, NPR, and CNN among many others.

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Righthaven's Copyright Trolling is a Bankrupt Idea

It’s been several months since we last checked up on Righthaven.  How is everybody’s favorite copyright troll doing?

Well, they might be going bankrupt:

The Las Vegas copyright-trolling firm Righthaven told a Nevada federal judge Friday [September 9, 2011] it might file for bankruptcy protection, or cease operations altogether.

To prevent that, Righthaven is asking U.S. District Judge Philip Pro to stay his decision requiring Righthaven pay $34,000 in legal fees to an online commenter it wrongly sued for infringement.

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He Tweets, He Misses! Court Blocks Gilbert Arenas's Preliminary Injunction

Basketball Wives: Los Angeles lives! And one of the reasons is an athlete's Twitter habit.

Jurisdiction: 

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Subject Area: 

$60,000 Ruling Against Truthful Blogger Tests Limits of the First Amendment

One of the first things I learned as a journalist, and later again as a media lawyer, was that under the First Amendment the "truth" could not be subject to a viable defamation claim. True statements are simply constitutionally immune and plaintiffs cannot sidestep all of the common law and constitutional protections for true speech through creative pleadings that would merely re-label defamation as another cause of action.

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Los Terroristas de Twitter?

Imagine you live in a country where criminal attacks on civilians are alarmingly familiar, and reliable reporting from the local media is regrettably unfamiliar.  You hear about an attack on your local school, so you take to the Internet to spread the word on Facebook and Twitter to warn people before it's too late.  Mercifully, the report you heard was mistaken, and everything's okay...

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