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

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

Update:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I am an independent anonymous person.

Please repost my blog immediately.

Thank you.

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

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

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

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

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

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

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

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

Update:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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