David Ardia's blog

Back in February, Denise Finkel, a 2008 graduate of Oceanside High School on Long Island, sued four of her former high school classmates and their parents after the students created a private Facebook group called "90 Cents Short of a Dollar," which allegedly contained false and defamatory statements about her. 

Rather surprisingly, Finkel also sued Facebook, claiming that the über-popular social network should be held liable for publishing the defamatory statements because it "should have known that such statements were false and/or have taken steps to verify the genuineness" of the statements. Complaint ¶ 28.  (The complaint also alleges that the students' parents are liable for negligently failing to supervise their children.)

As Eric Goldman presciently noted at the time, "[w]ith respect to the claim against Facebook, this lawsuit is unquestionably DOA."  After all, even a cursory reading of the complaint demonstrates that Facebook qualifies for protection under Section 230 of the Communications Decency Act. Indeed, our database is littered with the wreckage of similar claims filed against social networks that ran aground on Section 230's protective shoals.   read more »

In a closely watched case that challenged (at least in Massachusetts) our long held understanding that truth is an absolute defense to a defamation claim, the jury has returned a verdict for the defendant, finding that it acted without actual malice when it sent an email to its employees stating -- truthfully -- that one of its salesman had been terminated because he violated the company's travel and expense policies.

The case, Noonan v. Staples, Inc., D. Mass, No. 06-10716, involved Staples, the office supply chain, and one of its former employees, Alan Noonan.  Back in February, we reported that the U.S. Court of Appeals for the First Circuit had held that Noonan could hold Staples liable for defamation based on a truthful email a superior sent to employees explaining the reason for Noonan's termination, so long as he could prove that the email was sent with "actual malevolent intent or ill will."  Not surprisingly, the First Circuit's decision sent shock waves through the media defense bar, with Robert Ambrogi, Executive Director of the Massachusetts Newspaper Publishers Association, characterizing it as "the most dangerous libel decision in decades."   read more »

Anyone who has spent even a few minutes looking for case documents in the federal courts knows what a crusty old system the federal government provides for searching and accessing filings in U.S. district courts and some federal circuit courts.  While these court records are ostensibly public, the sheer hassle of getting to them renders the documents largely inaccessible.  That is about to change, in a big way. 

The folks over at Princeton's Center for Information Technology Policy, along with Berkman's own Steve Schultze, just released a plugin for Firefox (you are using Firefox to read this post, right?) that begins to set these documents free, one motion to dismiss at a time.  Here is how the developers at Recap describe it:

RECAP users automatically donate the documents they purchase from PACER (Public Access to Court Electronic Records) into a public repository hosted by the Internet Archive. And RECAP saves users money by alerting them when a document they are searching for is already available from this repository. RECAP also makes other enhancements to the PACER experience, including more user-friendly file names.   read more »

Exercising one of the freedoms Americans celebrate on Independence Day -- the freedom to threaten an ill-conceived lawsuit -- Alaska Governor Sarah Palin directed her lawyer to publish an open letter to Shannyn Moore, an Alaska blogger, radio personality, Huffington Post contributor, and frequent guest on MSNBC, threatening to file a defamation lawsuit against her.  The letter also warned the Huffington Post, MSNBC, the New York Times, The Washington Post, and other news organizations that Palin would be "exploring [her] legal options"  if they claimed "as 'fact' that Governor Palin resigned because she is 'under federal investigation' for embezzlement or other criminal wrongdoing." 

The oddly worded four-page letter warns of severe consequences for news organizations that republish rumors suggesting Palin embezzled funds in the construction of a Wasilla, Alaska, sports arena.  In the letter, Attorney Thomas Van Flein states:   read more »

As part of today's launch of YouTube's Reporters' Center, which features how-to videos on news reporting, the Citizen Media Law Project created a short video addressing some of the newsgathering and privacy issues people are likely to face as they head out with camera in hand to cover the news.  The two-part series of newsgathering videos (the first video is embedded below, the second video should be up later this week) describe the legal and practical issues you may encounter as you gather documents, take photographs or video, and interview others. 

The YouTube initiative aims to educate budding videographers on a wide array of issues associated with news reporting, such as how to fact check stories, avoid breaking the law while reporting, and adhere to journalistic principles.  According to YouTube's press release:   read more »

Today, Harvard Law School's Cyberlaw Clinic submitted an amicus curiae brief urging the New Hampshire Supreme Court to defend the First Amendment rights of a website that covers news about the mortgage industry. The Cyberlaw Clinic, with the assistance of local counsel Paul Apple of Drummond Woodsum & MacMahon in Portsmouth, NH, filed the friend-of-the-court brief on behalf of the Citizen Media Law Project and the Reporters Committee for Freedom of the Press (RCFP) in the case of The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc.    read more »

Spring is upon us and with it comes commencement season at universities across the country (Harvard's 358th commencement is this Thursday, FYI).  This is a tough time for graduates in almost every discipline, but especially so for journalism grads.  At least that is the conventional wisdom. 

Which is why it is so refreshing to see a shift in perspective occurring (perhaps even, gasp, a paradigm shift?) at two of this country's preeminent journalism schools: the Columbia Graduate School of Journalism and UC Berkeley Graduate School of Journalism.  In commencement speeches last month, Nicholas Lemann and Barbara Ehrenreich both exhorted the graduates to view these difficult times as an opportunity to reinvent journalism.

From Nicholas Lemann's speech at Columbia (posted by Clay Shirky because Columbia didn't see fit to post it!? - I guess that answers my question about a paradigm shift):    read more »

From the we-aren't-making-this-up-department:

Johnny I. Henry, an inventor of the vibrating toilet seat, filed a lawsuit last week against Google, Inc. and AOL, claiming that search results delivered by Google and hosted by AOL are defamatory.  In his pro se complaint, Henry, who is African-American, asserts that Google's search results include links to, and snippets of text from, sites that contain pictures of him with captions containing a racial epithet. 

Had Henry chosen to use Google with the SafeSearch preference set to "Use strict filtering," he wouldn't have seen the sites and been offended. That's because the sites in question appear to host sexual content. "Safe Search currently applies to sexual content only, not to racial epithets," explained a Google official in an e-mail.  

Henry's lawsuit will almost certainly be dismissed pursuant to section 230 of the Communications Decency, which protects search and service providers like Google and AOL from liability for content created by third parties.

You can follow further developments in this case, which likely won't last long, by checking out our legal threats database entry, Henry v. Google. 

Shortly after the election last November, a call went out within the conservative blogosphere to use Twitter to organize conservatives online.  Not long thereafter, Michael Patrick Leahy and Rob Neppell started the website Top Conservatives on Twitter and pushed like-minded conservatives to use the Twitter hashtag #TCOT (the # allows twitterers to tag their tweets so others can easily search for the term on Twitter), which quickly caught on with the Tax Day Tea Party crowd. 

When internal disagreements forced Leahy and Neppell to go their separate ways, many liberal-leaning sites crowed "Top Conservatives on Twitter FAIL."  Among the sites that reveled in the conservative breakup was Teablogging.net, an anonymous blog created "to chronicle the lead-up to the April 15 conservative hysteria Tax Day Tea Parties and to serve as a central repository for low-brow teabag-related sex jokes," which started referring to the TCOT acronym as "Teabagger Catfight On Twitter" and labeled Leahy a "notorious douchenozzle." (Can you tell this story isn't going to end well?)    read more »

The Associated Press is reporting that craigslist has decided to replace the "erotic services" section of its site with a new adult category that will be reviewed by craigslist staff (craigslist just issued a statement confirming the change).  The decision follows several months of pressure from officials in a number of states who have been trying to force the online classified site to drop its "erotic services" section, claiming that the ads facilitate prostitution. 

As we and others have noted (see here, here, and here), craigslist is entitled to broad immunity under section 230 of the Communications Decency Act ("Section 230"), the federal statute that protects operators of websites and other interactive computer services from liability for publishing the statements of third parties.  Section 230's protection is not limited to civil liability.  And while it does not apply to federal criminal law, see 47 U.S.C. § 230(e)(1), the most plausible reading of the statute's language is that it preempts state criminal actions inconsistent with it.   read more »

I sent this list out to the CMLP's team of intrepid bloggers to pique their interest, but with things being a bit slow around the office today, I figured I'd avoid the middleman. 

Things that caught my eye this past week:   read more »

I'm excited to welcome Kimberley Isbell, the Citizen Media Law Project's new staff attorney.

Kimberley is a Fellow at the Berkman Center for Internet and Society (where the CMLP is based).  She received her J.D. degree from Harvard Law School in 2000, where she was Editor-in-Chief of the Harvard Law Record and President of the HLS Civil Liberties Union. Prior to joining the Berkman Center, she was an associate at Arnold & Porter and Hogan & Hartson in Washington, DC and Hunton & Williams in Richmond, Virginia.

While in private practice, Kim specialized in intellectual property and technology counseling, prosecution, and copyright and trademark litigation.  She did a lot of Internet and e-commerce licensing work, handled clearance, registration, and management of trademark assets, and gained experience in advertising review and promotions law, among many other things. She is the former chair of the American Bar Association Intellectual Property Law Section's Committee 205 – Trade Identity and Unfair Competition.

Please join me in welcoming Kim! 

Back in November 2006, the New England Patriots went on the offense and filed a lawsuit against StubHub Inc., one of the largest online ticket resellers, claiming that the company encourages fans to violate Massachusetts' anti-scalping laws and the team's prohibition against reselling tickets.  The lawsuit, filed in Suffolk Superior Court, also named as defendants two local residents and 50 "John Does," who allegedly resold their season tickets on StubHub.com.

After a long, drawn out period of discovery, StubHub moved for partial summary judgment, arguing, among other things, that under Section 230 of the Communications Decency Act it shouldn't be held responsible for the actions of its users.  In what appears to be a troubling expansion of the Ninth Circuit's holding in Fair Housing of Council of San Fernando Valley v. Roommates.com, 521 F.3d 1157 (9th Cir. 2008), Superior Court Justice Ralph Gants threw the flag and held that StubHub was not entitled to immunity. NPS LLC v. StubHub, Inc., 2009 WL 995483 (Mass.Super. Jan. 26, 2009).   read more »

A judge in Knox County, Tennessee has refused to order news organizations to disable online comments on their stories related to a murder case or to police the comments by requiring posters to provide verifiable identifying information.  Defense attorneys representing four suspects in a 2007 fatal carjacking had filed a motion in February asking the judge to restrict media coverage in order to prevent jurors from learning about the case.

Two local news organizations, the Knoxville News Sentinel and WBIR-TV, quickly moved to intervene in the case and convinced the judge that such a ban would be an impermissible prior restraint on speech.

In the eight-page order he issued yesterday, Judge Richard Baumgartner wrote:

Any prior restraint of expression bears a "heavy presumption against its constitutional validity."   A defendant "carries a heavy burden of showing justification for the imposition of such a restraint." . . .   read more »

I'm excited to welcome Eric Robinson, a noted media and First Amendment lawyer, as a guest blogger. Eric is a Staff Attorney at the Media Law Resource Center, a nonprofit information clearinghouse which monitors and promotes First Amendment rights in libel, privacy, and related fields of law. He previously worked at the Reporters Committee for Freedom of the Press and in staff positions for federal, state and local elected officials. He teaches media law classes, and has written articles for various professional and academic publications, including the recently-published Encyclopedia of the First Amendment.

Please join me in welcoming Eric!

Last month, we reported that President Obama had begun making good on his promise of reinvigorating the federal Freedom of Information Act ("FOIA").  One of the first tangible steps involved Attorney General Eric Holder instructing government agencies to favor release of documents to the public. Well, the good news keeps coming, with President Obama having recently submitted a budget for fiscal year 2010 that includes $1 million for the new Office of Government Information Services ("OGIS") that would serve as an "ombudsman" for FOIA requests by accepting citizen complaints, issuing opinions on disputes, and fostering best practices within the government.

This is in stark contrast to the previous administration, which submitted a budget for fiscal year 2009 that sought to locate OGIS in the Department of Justice and provided no funding for its work.  Instead, under President Obama's budget plan, OGIS will be housed in the National Archives and Records Administration, as required by the OPEN Government Act of 2007.

While the FOIA ombudsman is only one part of the comprehensive reforms included in the OPEN Government Act, it plays an important oversight role for a law that is more honored in the breach than in the observance by government agencies.   read more »

Last month, Phoenix police raided the home of Jeff Pataky, a blogger who runs Bad Phoenix Cops, a blog that, not surprisingly, has been highly critical of the Phoenix Police Department.  According to The Arizona Republic, Pataky's home was raided by ten Phoenix police officers who handcuffed his girlfriend for three hours while they conducted the raid.  "We have heard internally from our police sources that they purposefully did this to stop me," Pataky told the Republic.  "They took my cable modem and wireless router. Anyone worth their salt knows nothing is stored in the cable modem."

The search warrant lists "petty theft" and "computer tampering with the intent to harass" as potential crimes. Pataky, who was away on a business trip when the raid occurred, says he has yet to see an affidavit that explains why they had probable cause to conduct the raid.    read more »

In what appears to be the first lawsuit related to debt collection activities on a social network, a Michigan woman is suing two debt collection agencies and their principals for violating the federal Fair Debt Collection Practices Act for, among other things, posting information about her indebtedness on her MySpace page.  The lawsuit, filed on March 23, 2009, seeks damages in excess of $25,000 together with equitable and declaratory relief.

According to her complaint, Paula Newland fell behind on her payments on a 2005 Chevy Impala in January 2009.  Shortly thereafter, she alleges that the defendants began engaging in various harassing and abusive collection activities, including disclosing private information to her family, friends, and neighbors, publishing private information on her MySpace page, and threatening to "camp out" in front of her home "all weekend."  The complaint doesn't describe what the defendants allegedly posted on her MySpace page.

The six count complaint alleges violations of the Michigan Collection Practices Act, federal Fair Debt Collection Practices Act, and Michigan Consumer Protection Act, as well as claims for Intentional Infliction of Emotional Distress, Intrusion Upon Seclusion, and Disclosure of Embarrassing Private Facts.

According to Wired's Threat Level Blog, which first reported the case:   read more »

United States Senator Benjamin Cardin today introduced legislation that would allow newspapers to become nonprofit organizations in what he described as "an effort to help the faltering [newspaper] industry survive."

The proposed Newspaper Revitalization Act would allow "newspapers for general circulation" to operate as nonprofits under section 501(c)(3) of the U.S. Internal Revenue Code, similar to public broadcasting.  Under the bill, newspaper nonprofits would not be allowed to make political endorsements, but would be allowed to report on all issues, including political campaigns. Advertising and subscription revenue would be tax exempt and contributions to support coverage or operations could be tax deductible.

According to Cardin's press release (finally not yet available on his website?!):

The measure is targeted to preserve local newspapers serving communities and not large newspaper conglomerates. Because newspaper profits have been falling in recent years, no substantial loss of federal revenue is expected.   read more »

While we are generally in favor of allowing new technologies into the courtroom (e.g., live blogging, webcasts, Twitter, etc.)  in order to make it easier for the public to monitor the functioning of our court systems, sometimes technology can be taken too far. 

The New York Times reports today that a juror in Arkansas used Twitter to send updates during a civil trial that resulted in a $12.6 million judgment against the defendant, which may be overturned as a result.  The Times also reported that on Monday of this week, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent Fumo, demanded that the judge declare a mistrial after a juror posted updates concerning the case on Facebook and via Twitter.  See Defendant Fumo's Motion for Immediate Voir Dire of the juror.  According to the Times, the juror even told his readers that a "big announcement" was coming Monday. But the judge decided to let the trial continue, and the jury found Mr. Fumo guilty.    read more »