Citizen Media Law Project -

Colorado Man Charged With Criminal Libel For Comments on Craigslist

David Ardia — Tue, 02 Dec 2008 13:57:10 -0500

The Loveland Connection is reporting that a Colorado man has been charged with two counts of criminal libel after allegedly posting comments about a former girlfriend and her lawyer on Craigslist.com's "Rants and Raves" section:

The case in Loveland began when a woman approached the Loveland Police Department in December 2007 about multiple postings made about her between November and December 2007. At least one post suggests that she traded sexual acts for legal services from her attorney, according to court records. There's also mention about a child services visit made because of an injury found on her child.

Police obtained search warrants for records from Craigslist.com and other Web sites and identified J.P. Weichel as the suspect, the former boyfriend of the woman, who shares a child with her. In August, detectives confronted Weichel at his workplace, where police said he admitted to the postings because he was "just venting," according to the court file.

We haven't been able to get our hands on the charging documents, but it appears that Weichel has been charged under Colorado's criminal libel law, Colo. Rev. Stat. 18-13-105, which defines criminal libel in shockingly broad terms:

(1) A person who shall knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule, commits criminal libel.

(2) It shall be an affirmative defense that the publication was true, except libels tending to blacken the memory of the dead and libels tending to expose the natural defects of the living.

Unfortunately, Colorado isn't the only state with a criminal libel provision on its books. Nor is this the first criminal libel case we've seen in Colorado arising from online speech. See State of Colorado v. Mink, where a college student was investigated for posting a satirical online journal that was critical of professors at the University of Northern Colorado (note that prosecutors eventually decided not to file charges).

At least 16 U.S. states have such laws which trace their roots back to at least the 15th century. According to the Media Law Resource Center (via ABCnews.com), they found 77 reported actual or threatened criminal libel prosecutions between 1965 and 2002. In 2008, at least 13 such cases have been brought in Wisconsin, Colorado, Minnesota, Florida, Louisiana, Montana and Oklahoma, the MLRC reports.

The charges against Weichel constitute a class 6 felony that carry a punishment of up to 18 months in prison. A hearing is scheduled for later in December 2008.

You can monitor the progress of this case in our database entry, State of Colorado v. Weichel.

Opening the Government, Starting with the Transition

Dan Gillmor — Tue, 02 Dec 2008 10:28:49 -0500

I’m a signer of a letter on a new site called “An Open Transition,” where a group of folks led by Larry Lessig:

celebrates the incoming administration’s decision to put a Creative Commons license on its Change.Gov transition website, thereby allowing anyone to share, remix and otherwise reuse and copy the material there;

and asks that this philosophy be extended widely in the new administration, and around the government in general.

Politico has a short story on this here.

The Role of Internet Intermediaries in Censoring Online Speech

Sam Bayard — Mon, 01 Dec 2008 12:48:33 -0500

Today I came across two excellent pieces touching on the role of intermediaries in censorship/regulation of online speech internationally:

The first is Rebecca MacKinnon's detailed blog post on her research on censorship of Chinese blogs. She looked at Chinese blog-hosting services, including foreign brands offering services inside China, and tried to determine how much variation exists in terms of "what gets censored and how it gets censored." She found remarkable variation between the 15 blog hosts examined:

Of 108 pieces of content on a variety of public affairs and news-related subjects from a variety of sources (ranging from Xinhua to dissident websites), the most censor-happy company deleted over half, while the most laid-back company censored only one.

Based on these findings, MacKinnon concludes that Internet filtering is only part of Chinese Internet censorship, that the Chinese government has outsourced domestic web censorship to the private sector, and that the private sector is carrying out censorship in an inconsistent way, among other things. Her post contains her fantastic presentation slides, which give concrete, visual examples of how the censorship works.

The second is a New York Times Magazine article by Jeffrey Rosen called "Google's Gatekeepers." It looks at three lawyers in Google's highest echelon, who ultimately decide what to do in response to demands by foreign governments (and Sen. Lieberman) to remove objectionable content. As you might imagine, this gives them incredible responsibility (and discretion) for determining what speech stays online. The article is generally optimistic about how Google has handled that responsibility so far, but expresses some understandable anxiety about the future:

Given their clashing and sometimes self-contradictory missions — to obey local laws, repressive or not, and to ensure that information knows no bounds; to do no evil and to be everywhere in a sometimes evil world — Wong and her colleagues at Google seem to be working impressively to put the company’s long-term commitment to free expression above its short-term financial interests. But they won’t be at Google forever, and if history is any guide, they may eventually be replaced with lawyers who are more concerned about corporate profits than about free expression. “We’re at the dawn of a new technology,” Walker told me, referring not simply to Google but also to the many different ways we now interact online. “And when people try to come up with the best metaphors to describe it, all the metaphors run out. We’ve built this spaceship, but we really don’t know where it will take us.”

Besides the important free speech issues, the article raises interesting questions about the professional responsibility of lawyers faced with potentially conflicting imperatives of pursuing their client's best interests and upholding larger ideals of social justice and human rights. It would make an excellent case study for a law school ethics class.

Jury Finds Lori Drew Not Guilty on Felony Charges

Sam Bayard — Wed, 26 Nov 2008 16:29:01 -0500

Wired/Threat Level reports:

Lori Drew, the 49-year-old woman charged in the first federal cyberbullying case, was cleared of felony computer-hacking charges by a jury Wednesday morning, but convicted of three misdemeanors. The jury deadlocked on a remaining felony charge of conspiracy.

It's not entirely clear how the jury could have found Drew guilty on the misdemeanor charges and not the felony charges. The felony counts required the government to show that Drew gained unauthorized access to MySpace's servers to obtain information "to further tortious acts," namely inflicting emotional distress on Megan Meier. Indictment ¶ 18. I'm not 100% sure on the details, but it sounds like the misdemeanor charges required only unauthorized access for purposes of gathering information about Megan (i.e., not in order to "further tortious acts"). One would have thought that proving "unauthorized access" was the hard part of the government's case, not showing that Drew and her gang intended to inflict emotional distress on Megan (which seems pretty obvious).

In any event, Judge Wu has not yet ruled on Drew's motions to dismiss the indictment for failure to state an offense and for judgment of acquittal based on lack of evidence of intent, either of which could result in the complete dismissal of all charges against Drew. This is where the important legal precedent will be set, because the court will finally have to decide whether or not violating a website's terms of use is a federal criminal offense and, if so, whether someone can commit that crime without even reading the relevant terms of use.

The Wired/Threat Level post has links to all of Kim Zetter's fantastic coverage of the trial.

News Links

David Ardia — Tue, 25 Nov 2008 19:18:34 -0500

I usually send this out to the CMLP's team of intrepid bloggers to pique their interest, but with the Thanksgiving holiday upon us, I figured I'd avoid the middleman.

Things that caught my eye this week...

BlockShopper Brings in the Big Guns - It's nice to see Blockshopper.com throwing some additional resources into this fight. If the plaintiff succeeds on its trademark claims, it will drastically change the way we communicate online. For more on the case, see our database entry, Jones Day v. BlockShopper LLC.

Censorship in the 21st Century: Targeting Intermediaries - I've been chewing on this bone for some time now. Intermediaries, especially domain name registrars, are clearly the weak link in the free speech chain.

Could bloggers be muzzled by lobbyist regulations? - Shows that threats to speech can come from many directions. See also this crazy law in Louisiana that appears to force lawyers in the state who blog to seek approval from the state bar association.

Gerken: The Invisible Election - A great follow-up to work the CMLP and others did to facilitate citizen reporting of election problems. Now it is time to analyze the data and begin deploying resources to fix the problems.

Search Engines Aren't Liable for Gambling Ads Per 230--Cisneros v. Yahoo - Another great post by Eric Goldman, who invariably is the first person I go to for my CDA 230 fix.

A scenario for news - Jeff Jarvis offers some insightful observations about how news is changing. Must reading for anyone who wants to see journalism evolve and expand.

California Real Estate Companies Pursue Bogus Lanham Act Claim Against Tenants

Sam Bayard — Mon, 24 Nov 2008 19:47:37 -0500

Paul Levy of Public Citizen recently tipped us off to a new John Doe case in federal court in California. In this case, two real estate companies, Parkmerced Investors Properties LLC and Stellar Larkspur Partners LLC, have sued eighteen unknown defendants for violation of the Lanham Act (15 U.S.C. § 1125(a)), libel, and tortious interference with contract. The lawsuit revolves around anonymous and pseudonymous postings to Apartment Ratings, a forum site that invites discussion about residential apartment buildings in locations throughout the United States.

Parkmerced Investors Properties LLC owns Parkmerced, a community of 3000+ units in San Francisco. Stellar Larkspur Partners LLC owns the Larkspur Shores Apartment Homes, a community of about 350 apartments in Larkspur, California. In the last couple of years, users of Apartment Ratings have posted a large number of comments, both positive and negative, about these two properties. Some of the postings deal with issues like increasing rents and other expenses, maintenance problems, construction noise, crime, and the responsiveness of management to complaints. In their complaint, Parkmerced and Stellar Larkspur identify eighteen allegedly false and misleading statements, all of which purport to relate to personal experiences of persons living in or visiting the Parkmerced and Larkspur Shores properties.

The complaint reads as if the Lanham Act were simply a federal cause of action for defamation or trade libel, which is particularly troublesome because the only basis for the federal court's jurisdiction is the Lanham Act claim. After identifying the allegedly false and misleading statements, count 1 of the complaint alleges: "Defendants' activities constitute false or misleading descriptions of fact and false or misleading representations of fact in violation of §43(a) of the Lanham Act, 15 U.S.C. § 1125(a)[,] because Defendants misrepresent the nature, characteristics and qualities of the Apartments." Cmplt. ¶ 33.

Superficially, this looks like a false advertising claim under 15 U.S.C. § 1125(a)(1)(B), but that statute also requires that the allegedly false or misleading statement be made "in commercial advertising or promotion." The purpose of this limitation is precisely to protect the free speech rights of critics and consumers. See J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 27:95 (4th ed. 2008). The complaint alleges no fact suggesting that the anonymous defendants criticized the two properties in connection with commercial advertising or promotion.

Instead, there is one throwaway paragraph:

Upon information and belief, Defendants include employees, agents or representatives of competing residential apartment communities in the Bay Area, parties or their agents adverse to the Apartments in other proceedings, other persons who are not current or former tenants of the Apartments, and/or persons misrepresenting their identities.

Cmplt. ¶ 11. Even if true, this allegation would not establish that any of the statements were made in connection with commercial advertising or promotion.

There is another possibility: Parkmerced and Stellar Larkspur may be trying to state a claim for infringement of an unregistered trademark under 15 U.S.C. § 1125(a)(1)(A). Unfortunately for them, this cause of action requires use of a trademark "on or in connection with any goods or services" in a way that is likely to cause consumer confusion about the source or sponsorship of those goods or services. But the plaintiffs don't even allege ownership of valid trademarks, much less consumer confusion or use in connection with a good or service.

What's more, the complaint's own allegations establish beyond any doubt that this dispute has everything to do with ordinary criticism and nothing to do with trademark infringement, false advertising, or any other competitive injury. Here's a sample of the statements on the website that are quoted in the complaint:

I used to live at Villas Parkmerced up until last year. I do not think the new management is sincerely trying to improve anything. All of the improvements being made by Parkmerced are being done a [sic] surface level in an attempt to justify raising rents and attracting new tenants. They are not fixing the problems that cause the leaks, broken heat, washing machines, or elevators. I sincerely believe they only have their best interest at heart and not that have [sic] current or future tenants. . . . (Cmplt. ¶ 20)

If you are looking to rent at larkspur shores, DONT. Construction noise, poor management, tacky decor, and an indifferent staff make this one of the worst choices to live [sic]. I have lived here for almost two years and have watched this once quaint neighborhood transform into a slum. If you are a current tenant and are posting on here because you are as fed up as I am, you have to understand we do have rights and I beg you to contact ____s at Marin Fair Housing ______, Alliance Residential Corporate Office located in Phoenix, AZ . . ., when you call this number there is a dial by name directory to screen calls, if you type in "___" "___" you get the voicemail of ____, probably not the most appropriate contact, but with enough people calling I am sure he will pass the message on to someone who is. Anyone who would like to unite and get a petition going to demand action, please feel free to post. I'll be sure to spread the message. (Cmplt. ¶ 26)

The apartment sticks [sic] from all the people that live on one level. The office does not care about your problems. Maintenance does no [sic] care. The [sic] get new management and don't tell. But worst of all i am pregnant and i moved in 3 months ago and me and my boyfriend started to notice every time we came home the apartment would smell like old people, [sic] A stinky restroom, old food evettime [sic] it smells different. They won't do anything about it. . . . (Cmplt. ¶ 28).

The other allegedly false statements are of the same basic character. If this is what the Lanham Act is meant to protect against, I'll eat my hat.

Armed with these allegations, Parkmerced and Stellar Larkspur have subpoenaed Apartment Ratings, asking for information identifying the authors of the critical comments made about them. They've asked for the identities of those users who wrote the eighteen statements quoted in the complaint, as well as other users who wrote things not specifically mentioned in the complaint. One of those users contacted Paul Levy, who last week filed an excellent brief asking the court for a protective order against the subpoena and moving to strike the plaintiffs' state-law claims under the California anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16).

Mr. Levy argued that the website's anonymous posters have a qualified right to engage in anonymous speech, and that the plaintiffs' facially invalid Lanham Act claim cannot justify disclosing the posters' identities. (As noted, without the Lanham Act claim, the federal court has no subject-matter jurisdiction over the case, so the potential merit of the libel and tortious interference claims should not matter.) Based on the same weakness, Mr. Levy argued that the plaintiffs could not establish the probability of success required to survive his client's anti-SLAPP motion to strike.

If the court does not grant Mr. Levy's motions, I'll have to concur with Eric Goldman that federal trademark law is "completely broken," adding only that federal false advertising law is no better off.

You can monitor the progress of this case in our database entry, Parkmerced Investors Properties LLC v. Does.

Lori Drew Trial Ongoing, Legal Issues Still Unclear

Sam Bayard — Fri, 21 Nov 2008 12:27:30 -0500

Lori Drew's trial for allegedly violating the Computer Fraud and Abuse Act (CFAA) began this week. There has been some great coverage of the proceedings, including the following highlights:

A couple of noteworthy points:

First, the prosecution's star witness Ashley Grill, Drew's former employee, admitted that it was her idea to set up the fake MySpace account for "Josh Evans" and that she sent the last message from "Josh" to Megan Meier in October 2006 saying that the world would be a better place without Megan. Grill testified that Drew and Drew's daughter Sarah were with her when she created the fake account, but that none of them read MySpace's terms of service. Daniel Solove aptly suggests that, if the prosecution fails to introduce further evidence that Drew knew that she was violating MySpace's terms of service, then she might be entitled to a directed verdict dismissing the case.

Second, the defense elicited on cross examination of Tina Meier that Megan herself created a fake MySpace profile in December 2005, pretending to be an eighteen-year-old. This ironic tidbit just underscores how widespread terms of service violations are and how dangerous the prosecution's theory of the CFAA could be.

Finally, while all the dramatic testimony is a great boon to the media, it seems potentially wasteful to go through all of this before the court rules on Drew's motion to dismiss the indictment. If Drew is right that her alleged conduct cannot form the basis of a CFAA violation, then there's no reason to spend days and days on the specifics of Drew's conduct or the morbidly fascinating details of Megan's last months and days.

For background and access to underlying court documents, see our database entry, United States v. Drew.

Jones Day v. BlockShopper: Court Chooses Legal Formality Over Common Sense

Sam Bayard — Thu, 20 Nov 2008 06:59:58 -0500

Last Thursday, a federal district judge denied BlockShopper.com's motion to dismiss Jones Day's complaint alleging trademark infringement and dilution. The lawsuit arose out of BlockShopper's reports on two condominium purchases by Jones Day associates Dan Malone Jr. and Jacob Tiedt. In the reports, BlockShopper used Jones Day's trademark (its name) to identify the law firm as Malone and Tiedt's employer and linked from each associate's name to their biographies on the firm's website.

In its motion to dismiss, BlockShopper argued that its conduct could not confuse consumers or dilute Jones Day's trademark as a matter of law. The CMLP joined Public Citizen, EFF, and Public Knowledge in moving the court for permission to file an amici curiae brief in support of BlockShopper's motion. Judge Darrah denied both BlockShopper's motion to dismiss and our motion for leave to file an amici curiae brief.

Jones Day convinced Judge Darrah of the United States District Court for the Northern District of Illinois that BlockShopper's arguments required resolution of factual issues not appropriate on a motion to dismiss. While this position is superficially appealing, it confuses the court's obligation to credit factual allegations with its duty to determine whether the alleged facts state a cause of action.

Stripping out the legal conclusions in the complaint (which are plentiful), the alleged facts are that BlockShopper used the Jones Day name to refer to the activity of its associates in the course of reporting on local real estate transactions, provided deep links to the firm's website, and hosted advertisements. (That BlockShopper used photos from the firm's website goes to a potential copyright infringement claim, not its trademark claims.) In its brief, Jones Day disclaimed any objection "to the use of 'Jones Day' in a truthful manner as the employer of certain individuals," Pl.'s Opp., at 13, leaving only the links and advertisements.

Despite the plaintiff-friendly standard on a motion to dismiss, nothing precluded Judge Darrah from determining what the law requires. Trademark infringement and dilution must require something more than merely linking to a trademark owner's website (the relevance of unrelated advertisements is not clear, except perhaps to block a "noncommercial use" defense). None of the cases cited by the judge remotely suggest that linking alone can result in consumer confusion or blurring of the distinctiveness of a trademark owner's mark. For good reason, the proposition defies both reason and experience.

As a matter of policy, the decision is absurd. Deep linking is a ubiquitous feature of the web. Nearly every website and blog in existence relies extensively on linking. As Paul Levy wrote in September: "That is what web sites do – they link to other web sites (that’s what makes it a 'World Wide Web')." The court's decision exposes anyone who takes advantage of this basic feature of Internet communication to the prospect of substantial litigation costs.

If a defendant can't get a trademark claim thrown out on a motion to dismiss, then costly discovery looms, as well as the prospect of hiring an expert to testify to what everyone who actually uses the Internet already knows -- there's no chance that readers would perceive any affiliation or sponsorship just based on a link, or that linking diminishes a trademark's power to identify the trademark owner's goods or services. As Corynne McSherry at EFF aptly puts it:

[B]y allowing the case to go forward, the court has made BlockShopper's defense much more expensive, even if BlockShopper is confident (as it should be) that it will win in the end. Thus, the court has sent a signal to news sites and blogs everywhere: no matter what the Lanham Act says, if you link to a trademark owner's site, or use a mark in a headline or post, you'd better have a pretty decent legal budget.

What's more, this gives trademark owners tremendous leverage to silence unfavorable speech.

The court succeeded in ignoring all these pragmatic concerns by single-mindedly focusing on the procedural posture of the case, something done at the urging of Jones Day. See e.g., Pl. Opp., at 1 (arguing that the court should reject BlockShopper's argument that the relief sought "would radically overturn the long established and ubiquitous Internet practice of websites linking to other websites" because "Defendants have not established (and of course cannot do so in the course of a motion to dismiss) that there even is such a practice"); Pl.'s Opp. to Request for Judicial Notice, passim (arguing that court should not take judicial notice of the linking practices of the Chicago Tribune).

BlockShopper will have to fight this one out. We can only hope that other courts don't follow Judge Darrah in his deference to legal formality at the expense of common sense. For updates on the case, see our database entry, Jones Day v. BlockShopper LLC.

Douchetastic Defamation Suit Filed

Marc Randazza — Wed, 19 Nov 2008 16:46:44 -0500

Michael Minelli, a 27-year old "club promoter," is spewing vinegar at Simon and Schuster, publisher of the book Hot Chicks with Douchebags. Apparently, Mr. Minelli finds the description "douchebag" to be inaccurate, and to say the least, neither sweet nor fresh.

In his complaint, Minelli seeks at least $10,000 in damages per count in his five-count action for defamation, intentional and negligent infliction of emotional distress, invasion of privacy, and a loss of that fresh feeling (to his goodwill, anyhow).

Minelli says he "has been, is now and continues to be called a douchebag by friends, acquaintances, coworkers, employers and strangers alike." (source)

The book, which began as a popular website describes Minelli in less than flattering terms -- stating (at page 202) that Minelli's "popped-collar, spikey-haired presence was so far beyond regular douche, so far beyond uberdouche, he could spontaneously create a new element on the periodic tables--Douche Nine." Minelli's complaint explains that "a Douchebag is, inter alia, 'a feminine hygiene device used for cleansing.'" (Complaint at 3). It also states "The Publication depicts Plaintiff as a 'Douchebag' and a dubious man." (Complaint at 4).

This case seems pretty clearly headed for disaster. It is obvious that the book does not use the term "douchebag", as Minelli claims, to describe a feminine hygiene product. The Merriam Webster dictionary defines "douchebag" as an "unattractive or an offensive person." Whether Mr. Minelli is unattractive or offensive is certainly a matter of opinion.

"Under the First Amendment there is no such thing as a false opinion. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974). An alleged defamatory statement “must be provable as false before there can be liability under state defamation law.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990).

The term “douchebag” may have different meanings to different people. C.f. McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) (finding that the term “scam” “means different things to different people . . . and there is not a single usage in common phraseology. While some connotations of the word may encompass criminal behavior, others do not. The lack of precision makes the assertion ‘X is a scam’ incapable of being proven true or false.”); Lauderback v. Am. Broad. Cos., Inc., 741 F.2d 193, 196 (8th Cir. 1984) (insurance agent referred to as a “crook”). “Clearly, if the statement was not capable of being verified as false, there could be no liability for defamation.” Woodward v. Weiss, 932 F. Supp. 723, 726 (D.S.C. 1996).

The only thing that Minelli will succeed in accomplishing with this lawsuit is adding to the number of people who think he is a douchebag and increasing the sales of the book.

Workshop on Managing Online Reader Contributions and Comments

David Ardia — Tue, 18 Nov 2008 17:39:36 -0500

This Thursday I'll be participating in a "collaborative workshop" involving newspaper editors and media lawyers addressing the challenges associated with managing online reader contributions and comments. The half-day workshop is sponsored by the New England Newspaper Association, New England Press Association, and Prince, Lobel, Glovsky & Tye.

I am especially excited about this conference because it won't be the usual panel of pontificating lawyers up on a dais (in fact, more than half the panelists are online editors). Instead, the focus will be on the practical issues news organizations are facing, such moderating "gutter talk," dealing with anonymity, preventing online harassment, and responding to subpoenas. I'll be giving an overview of the immunity provisions in section 230 of the Communications Decency Act, but I expect the conversation will quickly move to how law, journalistic ethics, and basic civility interact online.

The conference, which runs from 9:00am to 1:30pm at the Crowne Plaza in Worcester, Massachusetts, costs $25 per person. The registration fee includes a luncheon talk by Josh Benton, founding director of the Nieman Journalism Lab, who will discuss the "changing journalist-audience relationship." If you are interested in attending, please use this registration form.

If you are in the Boston area on Thursday, please consider stopping by.

Nude Bike Riding Protected by the First Amendment

Marc Randazza — Tue, 18 Nov 2008 11:45:05 -0500

Michael "Bobby" Hammond, 21, inspired by his recent participation in the annual World Naked Bike Ride -- an event that protests against car culture, decided to take his vintage 10-speed bicycle for a spin through the streets of Portland, Oregon while wearing nothing but a bicycle helmet.

Portland Police were not amused. Mr. Hammond was arrested for indecent exposure under Portland, Or., City Code § 14.24.060, which states that "it is unlawful for any person to expose his or her genitalia while in a public place, or a place visible from a public place, if the place is open or available to persons of the opposite sex." However, Mr. Hammond's conduct was held to be protected speech, and the charges were dismissed.

A few weeks after he participated in the World Naked Bike Ride in Portland, he and a friend, Walter Geis, were dismayed at the amount of traffic in front of his house. He and Geis then stripped down and held their own small nude bike ride to "express a message in support of bikes and against cars, foreign oil, the Iraq war, and air pollution." (source) The appropriately-named Multnomah County Judge Jerome LaBarre (you can't make this stuff up) dismissed the inevitable charges that followed.

LaBarre said the city's annual World Naked Bike Ride -- in which as many as 1,200 people cycled through Northwest and downtown Portland on June 14 -- has helped cement riding in the buff as a form of protest against cars and possibly even the nation's dependence on fossil fuels. (source)

Hammond's assertion that his nakedness was protected First Amendment expression and therefore beyond the purview of the Oregon nudity ordinance drew support from Portland v. Gatewood, 76 Ore. App. 74 (Or. Ct. App. 1985). In that case, the Appellee argued that the language of Portland City Code § 14.24.060 was overbroad because it prohibited speech that is protected under Article I, Sect. 8 of the Oregon Constitution, a provision that is even more protective of free speech rights than the First Amendment. Under the ordinance's plain language, nude protests or theatrical productions would be banned. The Oregon Court of Appeals upheld the ordinance, but did so by interpreting it as containing implied constitutional safeguards.

We read the challenged ordinance as focusing on the goal of regulating conduct which the city council has determined to be injurious to health, safety and morals, i.e., the prohibition of public nudity or indecent exposure not intended as a protected symbolic or communicative act. Id. at 82.

The Gatewood court also held that "[t]he question of whether nudity in a particular case is a symbolic or communicative act is a question of fact." Apparently, in Hammond's case, Judge LaBarre determined that the facts supported Mr. Hammond's position that he was engaged in symbolic political speech -- thus the Ordinance (under the view expressed in Gatewood) did not apply.

Two New Ripoff Report Cases Filed

CMLP Staff — Mon, 17 Nov 2008 11:00:06 -0500

Eric Goldman reminds us (here, here) that angry companies and individuals are still suing Xcentric Ventures, LLC and Ed Magedson left and right over reports submitted to Ripoff Report. Ripoff Report is a website that allows users to post reports about individuals and companies that they believe have "ripped them off" or treated them unfairly. The website has attracted much criticism and litigation for refusing to remove allegedly false reports and offering a service to aggrieved businesses called the "Corporate Advocacy Program" ("CAP"), under which, for a fee, the website will investigate "rip-off" reports targeting member companies and post prominent rebuttals to those reports.

Ripoff Report has been remarkably successful in fighting off lawsuits for defamation and other torts based on user-submitted reports. In large part, this success is due to section 230 of the Communications Decency Act" ("CDA 230"), which states that no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1).

Plaintiffs' lawyers have therefore been forced to get creative. One possibility is to claim that Ripoff Report posts defamatory reports in order to extort money from aggrieved companies (see, for example, Cambridge Who's Who Publishing v. Xcentric Ventures), but at least one court has rejected the argument that the CAP program strips Ripoff Report of CDA 230 immunity. See GW Equity, LLC v. Xcentric Ventures, LLC, No. 3:07-CV-976, slip op. at 11-12 (N.D. Tex. Oct. 8, 2008) (magistrate report and recommendation, subject to approval by district court). A more common path is to allege the Ripoff Report creates or develops the allegedly defamatory content itself. Two cases recently filed against Xcentric Ventures and Ed Magedson take this approach.

In Certain Approval Programs v. Xcentric Ventures, Certain Approval Programs, LLC, a company that provides real estate investment consulting services, and its CEO Jack Sternberg, sued Xcentric and Magedson in Arizona federal court. They allege that an anonymous Ripoff Report user posted a defamatory report about them in August 2007, in which the user claimed that their "Buyers First" real estate investor education program was illegal and a "scam," and that Mr. Sternberg had been arrested for fraud in the 1990s and owed millions of dollars as a result. Cmplt. ¶¶ 38, 51.

In an attempt to get around CDA 230, the plaintiffs further allege that Xcentric and Magedson added their own defamatory content to the report by doing the following six things:

adding the words "Rip-off Report:" to the title created by the site user and using it to create a "title meta tag" (which generates the url for the webpage and the title for that page that appears in search engine results);
using information submitted by the site user to generate a "description meta tag" (which generates the two lines of text displayed below the title in search engine results);
creating "keyword meta tags" for the report using the words "rip-off, ripoff, rip off, Jack Sternberg Ken Preuss Buyers First, Company, Con Artists";
providing the site user with the defamatory category "Con Artists";
designing and publishing the website's logo that appears on each report and says "for consumers, by consumers," "Ripoff Report," and "Don't let them get away with it . . . let the truth be known!"; and
creating and registering the domain name of the website -- www.ripoffreport.com.

Certain Approval and Sternberg claim that Ripoff Report's own content falsely suggested that they "rip off" consumers and are trying to "get away with it." Id. ¶ 51. Regardless what one thinks about the merits of these allegations, the complaint in this case is well-crafted and sophisticated. Among other things, it includes screenshots that walk you through the creation of a "rip-off" report and demonstrate how title and description meta tag data show up in search engine results. Xcentric and Magedson filed an answer in September 2008, and the parties are headed into the discovery phase of the lawsuit.

The second case is more prosaic. In Barnes v. Xcentric Ventures, A.H. Barnes, a California attorney who operates several businesses that help attorneys and other individuals find employment, sued Xcentric and Magedson in California state court. He alleges that anonymous users of Ripoff Report submitted false and defamatory reports claiming, among other things, that he was dishonest, that he was "cooking the books," and that he had engaged in a pattern of criminal activity including breaching the privacy of his customers, software piracy, data theft, and deliberately violating federal anti-SPAM laws and regulations. Cmplt. ¶¶ 15-17.

Trying to get around CDA 230, Barnes alleges that Ripoff Report and Magedson updated the title of the defamatory thread about him to include the statement "UPDATE Ex-Employee responds . . . SCAM, FRAUD and tons of SPAM." Id. ¶ 18. He alleges more generally that Ripoff Report "deliberately and intentionally alters the content of its purportedly anonymous third-party postings to enhance the salaciousness and magnitude of known defamatory content." Id. ¶ 8. As Eric Goldman notes, this is a "'garden-variety' complaint . . . that doesn't break any new ground," and he's probably right to "smell summary judgment for the defense" on this one.

We'll be monitoring these two in our legal threats database.

Schools Lack Authority to Punish Online Student Speech

Mary-Rose Papandrea — Thu, 13 Nov 2008 16:28:00 -0500

One of the major issues facing schools is whether they have authority to discipline their students for speech on the Internet. In an article I wrote that will appear in the December 2008 issue of the Florida Law Review, I argue that public secondary schools have virtually no authority under the First Amendment to punish students for online speech. I decided to write this article after hearing about cases all over the country where schools punished their students for creating parody websites mocking their teachers or school administrators or for making offensive comments about school officials or fellow students on the Internet. One of the more interesting cases arose in Connecticut, where the court upheld a school's decision to punish a student for calling school officials "douchebags" on livejournal.com. Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008).

Some have argued that we should not get too worked up about schools restricting their students' expression because they are minors and therefore entitled to lesser First Amendment protection. At first blush, the argument that there are differences between children and adults that could justify the restriction of minors' speech rights seems noncontroversial. Certainly if by "children" we mean persons from birth to age 18, claims that children are emotionally and mentally less mature and more vulnerable than adults is obvious. Most of the students asserting their free speech rights, however, are not pre-school or elementary school students. Instead, almost all plaintiffs in student speech cases are at least 12 years old, and the vast majority are in high school. Thus, when considering the free speech rights of students, in practical terms the discussion is about the free speech rights of adolescent students. The emotional, developmental, and cognitive differences between high school students-who are minors and given fewer rights-and recent high school graduates-who are typically over age 18 and enjoy full constitutional rights-is not so obvious. Furthermore, the Supreme Court has never held that adults who less emotionally or intellectually developed are somehow not entitled to benefit from First Amendment protection.

Commentators arguing that minors have reduced free speech rights point to Supreme Court cases upholding laws aimed at protecting minors from profanity and sexually explicit expression. Notably, however, none of the Court's cases addressing the speech rights of children concern the right of minors to speak; instead, they all focus on protecting children from hearing or receiving speech that is regarded as harmful. Furthermore, all of the Court's cases involve indecent or sexually explicit expression. It is by no means clear that the Court would extend its protectionist approach to violent speech or to other kinds of expression that are not indecent or profane.

Another argument some have made against juvenile speech rights is that the various theoretical justifications for the First Amendment-the promotion of self-government, the search for truth in the marketplace of ideas, and the fostering of autonomy and self-fulfillment-all have little application to minors. This is by no means clear, however. A primary goal of public education should be to prepare minors to be political actors by training them to think rationally and critically. Without some education about how to exercise their free speech rights, students would enter the adult world without the necessary skills to contribute to the political world. On a practical level, politically aware young people can have an impact on the political dialogue and influence the way their parents and other adults vote. Allowing the "marketplace of ideas" to flourish at school and on the Internet helps prepare students to be participants in democracy where the free exchange of ideas and diversity of viewpoint are cherished. Given that young people spend the bulk of their time in school acquiring knowledge and developing their belief systems, the theory of the marketplace of ideas has particularly strong currency for them. The role of the freedom of expression in promoting autonomy and self-fulfillment has perhaps even more resonance with respect to minors than with adults. Adolescence is a time of tremendous growth, self-awareness, and personality development. Allowing students to express themselves freely promotes the development of their individuality. Some commentators have suggested that juvenile speech is simply low value speech not worthy of full constitutional protection, but even if such a broad generalization were true, the Supreme Court has never denied full First Amendment protection to adult speech simply because it is "low value."

Because neither Supreme Court precedent nor First Amendment theory allows student speech right claims to be dismissed out of hand, we are left to consider whether there is something special about public schools that would justify granting them broad power to restrict student speech on the Internet. The Court has frequently cited the "special characteristics" of the school environment to justify restrictions on student speech rights. The Court has not been clear about what these special characteristics are, but surely the Court is concerned about giving school authorities the power to maintain quiet and orderly classrooms. Clearly it is unobjectionable for teacher leading a physics lesson to tell students that they can't talk about the presidential election during class. In this way, permitting schools to restrict speech that disrupts their work closely resembles the ability of, say, courtroom deputies to enforce certain rules of conduct while court is in session or any number of other time, place, and manner restrictions that we tolerate in any number of public fora. For the most part, however, communications on the Internet do not intrude into the public space, and therefore by their very nature cannot cause an immediate disruption to the work of the school.

While schools have limited authority under the First Amendment to punish student speech on the Internet, this does not mean that they are helpless to act. In cases of violent expression, school officials can seek help from law enforcement authorities who are trained to assess the likelihood of an actual threat to the safety of the school and its students. Teachers and administrators who are truly defamed can seek redress through civil lawsuits. But for the most part, the primary approach that schools should take is not to punish their students for their speech on the Internet, but to educate them about how to use this medium responsibly.

Lori Drew Trial To Start Next Week

Sam Bayard — Wed, 12 Nov 2008 12:16:08 -0500

Believe it or not, the criminal case against Lori Drew heads to trial next Tuesday. Federal prosecutors in Los Angeles indicted Drew last May for her alleged role in a hoax on MySpace directed at Megan Meier, a 13-year-old neighbor of Drew's who committed suicide in October 2006. Prosecutors claim that Drew violated the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, by accessing MySpace servers "without authorization" or "in excess of authorization" because she violated the social networking site's terms of service by creating an account with inaccurate registration information and engaging in hurtful speech.

Federal district judge George H. Wu still has not decided Drew's motion to dismiss the indictment for failure to state an offense, in which she argued that the CFAA does not apply to mere violations of website terms of service. According to Drew's attorney Dean Steward, who spoke with the Wall Street Journal Law Blog a few weeks ago, Judge Wu wants to hear additional testimony "regarding the MySpace terms of service and the way MySpace works" and apparently intends to bring this information out at trial. Why the court does not require the parties to present this evidence as part of a pre-trial hearing on the motion to dismiss the indictment is not clear -- the judge's approach seems to blur his responsibility for ruling on the proper interpretation of the CFAA with the jury's responsibility for determining Drew's factual guilt.

In recent developments, distinguished computer crime expert and law blogger Orin Kerr joined the defense team in mid-October. Just this week, Judge Wu indicated in a pretrial conference that he was inclined to grant Drew's motion to exclude evidence of Megan Meier's suicide at trial. The court apparently agrees with Drew's arguments that this is evidence is not relevant to the issue in the case (whether she accessed MySpace server's without authorization) and would unfairly prejudice her before the jury. This is obviously good thing for Drew, especially because the government successfully blocked her attempt to waive her right to a jury trial. (Under Federal Rule of Criminal Procedure 23, a criminal defendant cannot waive a jury trial without the consent of the government.)

As bad (and hopefully unusual) as Ms. Drew's conduct is alleged to have been, this case has important implications for all Internet users. If applied beyond the confines of this prosecution, the government's theory would impose criminal penalties for ignoring or violating a website's terms of service, something that probably millions of Internet users do every day, often without even knowing it.

We'll monitor the progress of the case in our database entry, United States v. Drew.

Court Rejects Bid to Silence Mortgage Watchdog Website

Sam Bayard — Tue, 11 Nov 2008 10:00:05 -0500

The Mortgage Lender Implode-O-Meter, a mortgage watchdog website, announced on Friday that a federal judge denied a motion for a preliminary injunction against it filed by Global Direct Sales, LLC, the Penobscot Indian Nation, Christopher Russell, and Ryan Hill. The plaintiffs in the lawsuit operate the Grant America Program, a seller-financed down payment assistance program for low- to moderate-income homebuyers. The requested injunction would have barred the Implode-O-Meter and others from "disseminating untrue, false and/or misleading statements regarding Plaintiffs, their business and their business dealings."

Ruling from the bench, federal judge Deborah Chasanow found that the plaintiffs had failed to satisfy the ordinary requirements for issuance of a preliminary injunction, including a probability of success on the merits of their defamation claim and a showing of irreparable harm without the injunction. The court also indicated that the likelihood of harm to the defendants and the public interest weighed against granting the injunction. According to Implode-O-Meter's description of the ruling,

The Court found that such an injunction would chill speech of Defendants and others. She found this to be most troubling in light of the fact that there is perhaps no topic that has any greater public interest right now than the economy, including the home mortgage industry and its role in the troubles of the day. For that reason, she found that any injunction would harm Defendants and disserve the public interest. (source)

Given its ruling on these narrower grounds, the court did not reach Implode-O-Meter's First Amendment argument that the requested injunction would be an unconstitutional prior restraint on speech, also a strong argument against the sought-after relief.

The case revolves around an article written by Krista Railey that criticized the Grant America Program and the business ethics of Global Direct Sales principals Christopher Russell and Ryan Hill. The Implode-O-Meter site hosts Railey's "FHA Mortgage Whistleblower" column, where the article appeared. During the hearing on the motion for a preliminary injunction, the plaintiffs' attorney identified five allegedly defamatory statements in the article:

(1) that the Plaintiffs are engaged in "laundering" money through their seller down-payment assistance program; (2) that Plaintiff Christopher Russell had made a "copycat" website of the AmeriDream website [AmeriDream was a charity founded by Russell and Hill]; (3) that Russell had tried to "extort" money from AmeriDream; (4) that the Grant America Program had not been "approved" by HUD; and (5) that the seller contributions to the program were a "concession." (source)

The complaint lists additional allegedly defamatory statements, including that the Grant America Program was a "scam," and that Russell and Hill had treated a charity they founded "like their own personal piggy bank." Cmplt.¶ 37. The plaintiffs filed suit in September against Implode-O-Meter, its operator Aaron Krowne, Railey, and others. The case is pending in the United States District Court for the District of Maryland.

Railey, Krowne, and the other defendants maintain that the article was accurate and well documented through publicly available information. It looks like Judge Chasanow agrees, at least on the current state of the evidence.

You can monitor the progress of this lawsuit in our database entry, Global Direct Sales, LLC v. Krowne.

These Anonymous Critics ARE Cowards

Dan Gillmor — Mon, 10 Nov 2008 21:50:02 -0500

The AP reports, "Palin derides anonymous critics on Fox as cowards," a reference to a recent Fox News segment in which a correspondent relayed a variety of negative attacks from, he said, members of the McCain campaign staff against Sarah Palin.

No matter what you think about Palin in general, she's right in this case. It's a perfect example of why anonymous critics should not be taken seriously -- in fact why they should often be flatly disbelieved.

Consider the source. Remember the avalanche of lies that emanated from the McCain campaign this fall? These folks were spewing untruths as a matter of routine. Now we're supposed to suddenly start trusting them? Strike one.

Even though Palin betrayed a remarkable ignorance to go along with her arrogance, the notion that she doesn't know Africa is a continent can't be taken seriously. Strike two.

And then there's the refusal of the person who allegedly said this to allow his or her name to be attached to the slander. Strike three.

This isn't precisely like an anonymous comment on a blog, where we don't know anything about the person posting it. In this case we know -- or, rather, we've been told by a news organization that itself is often untrustworthy -- that the comments came from a dishonest political campaign.

The anonymous comment on a blog or news article deserves less than no credibility. The Palin attacks, given the source, deserve about as much trust: zero at most.

(Note: I'm sorry to see that so many journalists have reported this garbage as if it was news. They're playing directly into the hands of the slimy folks.)

CMLP and Leading Online News Organizations File Amici Curiae Brief in Cape Cod Defamation Case

David Ardia — Mon, 10 Nov 2008 12:36:03 -0500

On Friday, the Citizen Media Law Project joined with the Online News Association, Media Bloggers Association, New England Press Association, and Globe Newspaper Company, publisher of The Boston Globe and Boston.com, to submit an amici curiae brief that argues that the Massachusetts anti-SLAPP statute applies to all parties, including members of the news media and professional bloggers, who engage in petitioning activities.

The case involves a defamation lawsuit filed against Peter Robbins, author of the Robbins Report, a blog that appears on the popular community website Cape Cod Today, and an anonymous commenter on that blog. The dispute arose over a March 11, 2008 blog post by Robbins entitled Barnstable Harbor: Filling in and falling in, in which he criticized a number of individuals, including plaintiffs Joseph Dugas and attorney Paul Revere III, who had challenged orders and permits issued by the Town of Barnstable Conservation Commission and the Massachusetts Department of Environmental Protection that authorized dredging in Barnstable Harbor. (See my earlier post on the case for additional background.)

On August 29, 2008, Robbins filed a special motion to dismiss the complaint pursuant to Massachusetts' anti-SLAPP law, Mass. Gen. Laws ch. 231, § 59H. (For general information on SLAPPs and the various state laws that protect against them, see our legal guide.) In their opposition to Robbins' motion, Dugas and Revere argue that if Robbins is a member of the news media, he cannot invoke the anti-SLAPP law. In addition, they argue that, because he receives compensation for his blogging activities, Robbins lacks a sufficient interest to qualify for protection under the law.

We disagree with both assertions and, with the help of Harvard Law School's Cyberlaw Clinic, filed a "friend of the court" brief explaining why a compensated blogger would be entitled to the protections of the anti-SLAPP law regardless of whether he or she is characterized as a member of the news media.

Under the Massachusetts anti-SLAPP statute, a party may file a special motion to dismiss if a complaint has been filed against it as a result of the party's "exercise of its right of petition under the constitution of the United States or of the commonwealth." M.G.L. c. 231, § 59H. A court must grant such a motion and award the defendant his or her attorneys' fees and court costs unless it finds that the party’s exercise of its right to petition "was devoid of any reasonable factual support or any arguable basis in law" and "the moving party’s acts caused actual injury to the responding party." Id.

The statute defines the "right of petition” to include written or oral statements that are

"made before or submitted to" a government body;
"made in connection with an issue under consideration or review" by a government body;
"likely to encourage consideration or review of an issue" by a government body;
"likely to enlist public participation in an effort to effect such consideration" by a government body; or
"any other statement falling within constitutional protection of the right to petition government."

Note that the anti-SLAPP statute does not protect "free speech" in the abstract, but only statements that fit within the five categories outlined above. Nonetheless, a good deal of online speech could fit into these categories, especially if it is aimed at influencing government policy or encouraging public participation in order to influence government policy.

In our brief we note that the Massachusetts anti-SLAPP law does not limit the type of party that may bring a special motion to dismiss and that one court in the Commonwealth has already ruled that a newspaper article "falls squarely with[in] the protection of [the anti-SLAPP law] as a '. . . written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding.'" Salvo v. Ottoway Newspapers, 1998 WL 34060940, at *2 (Mass. Super. May 13, 1998) (quoting Mass. Gen. Laws ch. 231, § 59H).

The fact that Robbins receives compensation for his publishing activities also does not preclude application of the anti-SLAPP law. Under the Massachusetts Supreme Judicial Court's holding in Kobrin v. Gastfriend, a blogger who is compensated for his work can still have a personal interest in an issue under governmental consideration sufficient to qualify for protection under the statute. He or she can have a direct interest in a matter under governmental consideration; an interest in an issue as a member of the community directly affected by that issue; or an interest in informing the public and engendering discussion about issues of public concern.

Moreover, in at least one case involving online speech, a Massachusetts appellate court applied the anti-SLAPP law to statements on a community website. MacDonald v. Paton, 782 N.E.2d 1089 (Mass. App. Ct. 2003). In that case, Elsa Paton operated a site that reported on local affairs in Athol, Massachusetts and the surrounding community. Mark MacDonald, a former Athol selectman, sued Paton and others after a local newspaper published an article referring to him as a "Gestapo agent," and Paton published a user-submitted "dictionary entry" for the term "Nazi" that referenced MacDonald. The court held that Paton's publication of the statement was "petitioning activity" within the meaning of the anti-SLAPP statue because "the Web site served as a technological version of a meeting of citizens on the Town Green, a space where concerned individuals could come together to share information, express political opinions, and rally on town issues of concern to the community." MacDonald, 782 N.E.2d at 1093-94.

If you would like to read our entire brief, it's located here. A hearing on Robbins' motion to dismiss is scheduled for November 13, 2008 in Barnstable Superior Court.

(You can follow further developments in the case by going to our legal threats database entry, Dugas v. Robbins.)

Charges Filed Against Google Executives in Italy Over User Video

Sam Bayard — Fri, 07 Nov 2008 12:43:19 -0500

Our intern Arthur Bright wrote an excellent post this summer on the prospect of criminal defamation charges being filed against Google executives in Italy over Google Video's hosting of a clip featuring the abuse of a teenager who has Down syndrome. Ars Technica reports that Italian authorities have now filed charges:

When Internet video hosts get dragged into the court room, chances are
good they're getting sued for something related to copyrighted
material. But rumors have persisted since July that Google execs might
get hauled before a judge in Italy to answer to charges of defamation
for a video that briefly appeared on Google Video Italia. Now, sources
are saying that charges have been filed against individuals that
include Google's Chief Legal Officer in a case where the actual
perpetrators may walk.

Arthur's post examined whether EU law might provide CDA 230-like protection for web hosts such as Google from lawsuits based on third-party content, using a procedural mechanism similar to that found in the DMCA. His preliminary conclusion was that EU law does provide this protection. Sounds like some Italian prosecutors disagree, or at least believe that the provisions Arthur cited don't apply to criminal actions (which looks like a strong argument). This should be an interesting case, and it could potentially illuminate the contours of EU law on third-party content.