Nursing Student Dismissed Over Blog Posts
Happier Days at the Nursing School
Another reminder that you will be judged by what you write.
A student dismissed from the University of Louisville’s nursing school because of her Internet postings has sued the university, alleging that it violated her First Amendment rights.
The nursing school expelled Nina Yoder on March 2, saying her MySpace postings “regarding patient activities and identification as a University of Louisville School of Nursing student violates the nursing honor code which you pledged to uphold,” according to a copy of her dismissal letter, which was attached to the suit.
In her blog postings, copies of which she attached to her own complaint, Yoder makes caustic comments about Christians and blacks. I attempted to go to the website to make my own determination about the appropriateness of her comments, but she appears to have taken down her MySpace page.
According to an article posted at courier-journal.com, the nursing school is upset because some of Yoder’s postings are about specific patients (although they are not mentioned by name). In one of her postings, she wrote about a birth she witnessed: “Out came a wrinkly bluish creature, all Picasso-like and weird, ugly as hell … screeching and waving its tentacles in the air.” I’m not sure a patient would want the miracle of her child’s birth described in that way by someone who should, like any medical professional, respect her privacy, but I can also see that as a failed attempt to humorously describe what she had seen.
But there was far more. The school officials were probably equally unimpressed when Yoder wrote about how the nursing school is in downtown Louisville, adjoining an area “inhabited by humanoids who have an IQ of 10 and whose needs and actions are basically instinctive. As in, all they do is ––––, eat, –––– and kill each other.” She did, however, graciously concede, “OK, maybe I am generalizing yet again.”
As discussed in my prior blog posting, Yoder and her supporters are using the “there’s so much trash on the Internet you can’t hold my trash against me” defense. As Yoder wrote in her letter requesting reinstatement to the nursing program, “If profanity was grounds for dismissal for the School of Nursing, the nursing school would go bankrupt.”
The court has not yet set a hearing date on Yoder’s request that the nursing school be ordered to reinstate her. We’ll know then if the trash defense worked.
[UPDATE] Thanks to Web Savy Med Student for providing me with an update on this case. I was unable to find the court’s ruling, but according to Web Savy and other sources, Yoder took the case to court and was reinstated to the nursing school. The court dodged any free speech issues, and instead decided the matter strictly on the honor code. Although her comments were “objectively distasteful”, according to the court those comments did not deal with her profession and did not violate any confidentiality since the patient could not be identified.
Anonymous Posters Are Not Immune from Defamation Claims
Liskula Cohen striking a pose
There is a saying in the legal profession that “bad facts make bad law.” More often, bad descriptions of a case lead to the perception of bad law. The case of the hot cup of McDonald’s coffee is cited to this day as an example of out-of-control personal injury cases because people erroneously believe it was only about a foolish woman putting a cup of hot coffee between her legs. Now, the case of an offended model may turn out to be to defamation what the coffee case was to personal injury.
Here’s the background. Model Liskula Cohen was clowning around at a party where some less than flattering photos were taken. (America’s Next Top Model has taught us that models look very different without their makeup.) Those photos ended up on a blog and the prepubescent boys had to make their prepubescent remarks, such as: “How old is this skank? 40 something?” … “She’s a psychotic, lying, whoring, still going to clubs at her age, skank.”
This case is being reported as the one where “a model is suing because someone called her a skank.” Thus, if she is ultimately awarded damages, this will be the case that is cited as evidence that the civil justice system is out of control because you can sue if someone says you are unattractive.
Look carefully at the comments. Defamation arises when someone falsely accuses someone else of, basically, illegal, immoral or unethical conduct. The comments don’t charge her merely with being a skank, but claim she is psychotic, a liar and a whore. The action would never have survived review if all that had been said is that she is a skank. That term is ill-defined and nebulous enough that arguably one could from the pictures form the opinion that word is an appropriate description. But what is the justification for the remainder of the remarks? What is the factual basis for calling her psychotic, or saying she is a lying whore? The comments go far beyond calling her a skank.
Call her thin-skinned if you want, but the case is about whether Google can be compelled to turn over the name of the blogger who made these unjustified remarks. Reports say Cohen buried her head in her hands and broke down in a Manhattan court this past Wednesday, crying as vulgar insults about her were read aloud from the “Skanks in NYC” web site.
Anne Salisbury, a lawyer for the blogger, is seeking to characterize the statements about Cohen as nothing more than “youthful, jocular, slangy” comments which are common on the Internet. And therein lies the rub; the fact that so much trash exists on the Internet is not justification for more trash. We need to defend the right of people to post anonymously on the Internet, but if we are going to fight for their rights, they should be prepared to accept responsibility when the comments step over the line into defamation.
The case was argued on March 11, 2009, and the judge is expected to issue a ruling in a few weeks. For a great description of the courtroom scene, go to Obscenities Fly In “Skank” Hearing. (Note that, once again, the title refers only to the “skank” remark.)
Anonymous Speech is an Protected Freedom – To a Point
A recent decision out of Maryland illustrates the legal tension that exists between anonymous Internet defamers and those they victimize.
Someone trashed a Dunkin’ Donuts, claiming it was unsanitary and dirty. DD didn’t appreciate that comment, and sought the identity of the person who had posted the comment. In deciding whether the message board was required to disclose that information, Maryland’s highest court decided that the victim of the comments must go onto the board and basically give notice to the defamer. This gives the defamer an opportunity to protect his anonymity by removing the offending comment (although some unscrupulous sites won’t allow the person that posted the comment to take down his own message). Then the victim must persuade the court that the comments constitute defamation. Defamation is not protected speech, so the court can then require disclosure.
Don't Bite Off More Than You Can Chew
It’s a tough course for the victim, because being forced to go into the lion’s den will often only fan the flames. However, as this case makes clear, a victim may well be barred at the door if he does not have the fortitude to take that step.
For a more general discussion of the Maryland case, go to Internet Free-for-All Promises An Ongoing Test of Free Speech. For a more detailed discussion of the legal issues, go to Maryland High Court Sets Legal Standard for Outing Online Foes.
Blogger Can’t Sue for Defamation on His Own Site
Lord of the Rings
In a fun bit of irony, a blogger has been hoisted on his own petard. This was a UK case, but the common law principles would likely yield the same result here.
First a little defamation law. Defamation is based on one’s loss of reputation, so you can never defame someone to themself. In other words, if you send a letter to Joe telling him what a liar he is, Joe can’t claim defamation because it is not possible that your letter caused him to lose reputation. (If it makes him realize what a liar he is, that’s just too bad.)
Further, if Joe then shows the letter to someone, you still can’t be held liable because it was Joe that published the statement to a third party.
In the UK case, the plaintiff had created a blog to tell about how he was molested by a Catholic priest. To make the story more interesting, the priest also happened to be son of writer JRR Tolkien. The defendant posted a comment on the plaintiff’s blog, claiming plaintiff had created the story in order to extort money from the Catholic Church. Plaintiff brought legal action for defamation.
“No can do,” said the court. Since the blogger had the ability to screen comments (whether he had chosen to do so or not), he was responsible for publishing the content. Under common law defamation, the situation was no different than Joe showing the defamatory letter to a third party.
You Can’t Sue Me, I Have the RIGHT to Defame You!
One of our current defamation suits involves a man that was accused of being a pedophile. He is not a pedophile, and the defendant freely admits that she does not really think he is a pedophile. Indeed, the Defendant says that our client has never done anything that would warrant her making such a claim. But that doesn’t stop her from making the claim anyway, because she doesn’t like him. That’s why we are suing her for defamation.
Here’s where the case gets stranger. Even though Defendant admits our client is not a pedophile, her attorney brought an anti-SLAPP motion claiming that our complaint should be thrown out because Defendant’s false statements are protected speech. Confused? Let me see if I can walk you through opposing counsel’s logic.
A Strategic Lawsuit Against Public Participation (“SLAPP”) is a lawsuit or a threat of lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Winning the lawsuit is not necessarily the intent of the person filing the SLAPP. The plaintiff’s goals are accomplished if the defendant abandons the criticism to make the lawsuit go away.
To guard against the use of lawsuits designed to quash free speech, California passed an anti-SLAPP statute. Code of Civil Procedure Section 425.16 provides a quick procedure a defendant can use to stop a SLAPP suit. Rather than goes through a year of costly litigation, a defendant can bring a simple motion to strike the complaint. The court then decides whether the speech in question is protected free speech.
Section 425.16 applies to causes of action “against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1).) Such acts include: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”
So, the first three types of protected speech arise from the traditional forums – statements made in places like court, during a city council meeting or at some other public forum. The fourth criteria can be outside a public forum, such as on a blog on the Internet, but that section requires that the matter being discussed concern a “public issue.” There are many competing court decisions that have tried to define what constitutes a public issue.
In our case, defense counsel argued that the Defendant’s false claim that Plaintiff is a pedophile is protected speech because stopping that behavior is a matter of public interest. He actually argued with a straight face that even when the accusation is a complete lie, one can accuse another of being a child molester and be protected from suit because the subject matter is so important. So, under defense counsel’s approach, certain topics would automatically enjoy heightened free speech protection, regardless of the circumstances. This obviously would make the job of defamers easier, because we could simply create a list of topics we find are important enough to be matters of “public interest” and the defamer could falsely accuse intended victims of those items, knowing the speech is protected.
The judge didn’t think that was a very good idea either. Motion denied. Defamatory speech is not protected speech under the anti-SLAPP statute.
Judicial Attitudes Often Do Not Match Reality
I originally reported this as a Canadian case, but one of the parties to the action called to inform me this was a U.S. case. Turns out there is on Ottawa, Illinois. Who knew? In relating the story I wasn’t particularly concerned about the location because I was using the case to illustrate a judicial attitude rather than a point of law.
The action involves a dispute over a bed and breakfast. The plaintiffs were seeking approval of the B and B from a planning commission. Some in the community apparently did not want the approval to go through, and posted comments about the plaintiffs on the Internet. Plaintiffs considered what was said to be defamatory, and sued.
The judge found in favor of poster “birdie1″ after determining that the comments were no more than opinions and therefore were not defamatory as a matter of law.
But it was the judge’s comments about the case against ”FabFive from Ottawa” that caught my eye. The plaintiffs were seeking to force the website to disclose the identity of that poster. In denying that request and ultimately dismissing the action, the judge concluded that “no reasonable person would give credence to comments posted anonymously at a web site.”
Virtually ALL comments are posted anonymously on the Internet, but in this judge’s estimation, no one takes them seriously. I can just picture this judge — probably a Luddite who refuses to use a computer — reading the complaint and saying to himself, “FabFive from Ottawa? What’s a FabFive? No one is going to listen to someone calling himself FabFive.”
Lesson to learn: No case is ever a “slam-dunk” (as so many potential clients like to tell me) because there are always humans in the equation. When you read the law, keep in mind that there may be “elements” that you will need to prove that are not specified in any statute or case law but which arise from the attitudes of the judge or jury.
Facts versus Law on Summary Judgment Motions
When pursuing an action for defamation, on the Internet or off, the first hurdles faced are the dispositive motion to strike under the anti-SLAPP statute and/or a motion for summary judgment. In their desire to clear their dockets, courts sometimes overreach when ruling on these motions. A recent case illustrates the point on a motion for summary judgment, where the court confused the distinction between facts an law.
In a persuasive holding the 9th Circuit Court of Appeals indirectly reiterated to litigators and the courts the importance of distinguishing questions of fact and law on motions for summary judgment.1 At the district court level in Posey v. Lake Pend Oreille School District, plaintiff Posey lost his first amendment retaliation claim on summary judgment because the court concluded that Posey acted as a public servant purely as a matter of law. Taking the issue up on appeal, Posey contested whether his conduct occurred pursuant to his official duties, providing the 9th Circuit with the opportunity to decide precisely what type of question Posey had presented to the district court, and whether the issue was proper for summary adjudication.Initially, the Court noted the elusive and vexing nature of the distinction between questions of law and fact, and chose to rely on guiding language from the U.S. Supreme Court: “Facts that can be ‘found’ by ‘application of . . . ordinary principles of logic and common experience . . . are ordinarily entrusted to the finder of fact.’ ” Moreover, ‘An issue does not lose its factual character merely because its resolution is dispositive of the ultimate constitutional question’ at issue . . . for ” ‘the rule of independent review’ will always require the court [to] independently . . . evaluate the ultimate constitutional significance of the facts found.”
The court went onto conclude that the issue of whether speech is made by a private citizen or public actor is a mixed one of fact and law, further concluding that the parties dispute over the scope of Posey’s precise duties presented a genuine issue of material fact sufficient to defeat the appellee’s motion. Aside from the obvious effect on 1st Amendment pleading, the case also kindly reminds of the importance of isolating each issue in opposing motions for summary judgment. As done by Posey, making a factual issue out of the basis upon which the court will decide a question of law may very well carry a matter to the trier of fact, which is exactly where distressed and sympathetic plaintiffs’ cases truly belong.
1. Posey v. Lake Pend Oreille School District, et al., 2008 DJDAR 15780.
Biegel v. Norberg — Chilling On-Line Reviews?
Yelp is based in San Francisco and is viewed there as a favored son for some reason. When someone dares to challenge Yelp or its postings, many of our Northern California neighbors get exercised. I received several calls from media outlets over the past couple of days, seeking comment on the case of Steven Biegel v. Christopher Norberg, an Internet defamation case involving Yelp.com.
The simple facts are these. Norberg was treated by Biegel, a Chiropractor. Norberg was told the treatment would cost a certain amount if he was paying for it out of his own pocket, but his insurance company was allegedly billed at a much higher rate. This apparently bothered Norberg, so he posted a review on Yelp.com, giving Biegel just one star and questioning the honesty of his billing practices. When Biegel complained about the review, Norberg replaced it with a new entry, accusing Biegel of attempting to harass him into silence. Biegel then responded by suing Norberg for defamation. The trial is set for March 2009.
Note that Yelp is not being sued, only the person that actually posted the allegedly defamatory statements. Nonetheless, many are bothered by such a lawsuit, concerned that it will have a chilling effect on the willingness of people to post their views on sites such as Yelp.com and Citysearch.com. Some have suggested to me that just as the website is immune from liability for anything said by visitors, that immunity should be extended to the visitors as well.
I fought at the forefront of cases involving the Communications Decency Act, which shields website operators from liability for the comments of others, because that make infinite sense. We would not have open forums and dialog on the Internet if the website operators had to fact check every comment posted.
But on the issue of whether those who post the comments should be protected, I find myself cast as the curmudgeon, seeking to stifle freedom of speech. Here is how the San Francisco Chronicle quoted me:
“Sites that are seemingly well intended are turning into wastelands of defamatory and unspecified allegations,” said Aaron Morris, a partner with Morris & Stone LLP in Orange County who is not involved in the case. “There needs to be some sort of blowback against unfettered speech. People should be able to go on and say, ‘That’s not a true statement about me, and I need to be able to attack this.’ “
If everyone played nice, review sites would not be a problem. But they don’t. Suits against those who post defamatory statements won’t chill free speech, but they will chill defamatory speech, and that’s a good thing. You see, those seemingly helpful reviews you are reading on line are being gamed big time, and there must be a means to fight back. I receive calls every day from businesses that are being falsely trashed by competitors. In one case it was discovered that a company had employed a full time defamer (my designation, not theirs), whose job was to spend all day every day, creating false identities in order to post false reviews, blogs and websites about competitors. I’d love to say that it will all come out in the wash; that a good business will receive enough good reviews to override the false statements, but that is not the case. Whereas a legitimate reviewer will post their remarks and go about their business, these professional defamers utilize SEO methods to move the defamatory blogs and websites to the top of the heap. Honest reviews don’t stand a chance against the bogus ones.
So what about the Norbergs of the world, who just want to post their comments without fear of legal action? Yes, the target of the criticism can file an action, but he will pay a heavy price if the posting was not defamatory. The poster can first respond with a simple anti-SLAPP motion, which stops everything including discovery and allows the court to determine whether the speech was protected and whether the plaintiff has a chance of prevailing. If the motion is granted, the plaintiff pays all of the poster’s attorney fees. He’ll then come to me, and we’ll file a SLAPP BACK action, suing the prior plaintiff for malicious prosecution, winning the poster millions of dollars and me a beach house (individual results may vary). Now who is chilled?
Dude, Who’s my plaintiff? — Courts allow anonymous plaintiffs
On August 12, 2008, the Second District U.S. Court of Appeals reaffirmed the national and local trend toward recognizing a litigant’s right to proceed anonymously through the courts. In order to sue under a pseudonym, plaintiff’s generally must show that the need for confidentiality outweighs the public’s right to know and any prejudice suffered by defendant due to the secretive pleading. While not necessarily a light burden for plaintiffs, the real strain of the increasingly minted right is on defendants.
Depending on the context of the suit, major public out-lashes could be directed at defendants helpless to stop the tide. For instance, defendants sued civilly (publicly) for sexual abuse stand to lose much in the way of reputation, and eventually income, no doubt due in large part to the public’s natural inclination to distance themselves from what might be a perpetrator. While public scrutiny of the would be victim once would serve as a blow-off valve to some extent, now defendants are not only left to deal with an unrelenting public reaction, but will dually reap heightened scrutiny for the same allegations as plaintiffs who have convinced the court of the need for confidentiality will have generally shown that they would face unwarranted injury should their identities be disclosed. In other words, defendants will have no way to call public attention to a plaintiff’s credibility, and the public will be informed, or may very well assume, that defendants or their associates had posed a threat to the plaintiff prior to or during the litigation.
Defendants’ aggressive depiction of all factors assessed by courts of their jurisdiction in deciding whether or not to permit plaintiffs to act incognito is the only recourse afforded to diminish the risk of anonymous lawsuits. Particularly, considering the public has a well established right to know who is using the court system, focusing on the lack of need to preserve a plaintiff’s identity and the severe damage that could be inflicted on a defendant’s personal and/or professional reputations as a result of the anonymous lawsuit would be key. Also, seeking an anonymous designation as a defendant may also assist in preventing unfair prejudice. Ultimately, regardless of a defendant’s choice of tactics the courts have once again increased the need to vigorously litigate cases at the earliest of stages, which requires a heightened state of readiness, and can make litigation all the more daunting.
1. Sealed Plaintiff v. Sealed Defendants, Docket No. 06-1590-cv (Dist. 2d, 2008).
2. Id. at 7-8.
Undefended Case Results in Huge Jury Verdict
It’s amazing what you can do when the defendant doesn’t show up at trial.
A South Florida jury has awarded a record $11.3 million in damages to a woman who was defamed by another woman on the Internet.
Sue Scheff of Weston, Fla., sued Carey Bock of Mandeville, La., in December 2003 over the messages posted calling her a crook, a con artist and a fraud, USA Today reported Wednesday. The dispute was centered on a referral business Scheff runs that helps parents of troubled children find appropriate schools, the newspaper said. After their transaction involving Bock’s two sons, Bock began posting the messages, the jury was told.
Bock was unable to pay an attorney and did not attend the Broward County, Fla., trial or enter a defense, and Scheff said she doubted she’d see any money at all.
