Tony La Russa Drops Action Against Twitter
Even when a lawsuit is weak on merit it sometimes achieves its purpose. I will have no part in filing a meritless lawsuit, but sometimes it is appropriate to push the envelope.
Take the case of Tony La Russa, famous baseball manager. Like so many other well known people, someone hijacked his name and image on Twitter, leading many “followers” to believe that the musings coming from this Twitterer (Twitterite?) were coming from the real deal. La Russa tried to persuade Twitter to intervene and remove the fake identity, but sure as there is a fail whale, the fine folks at Twitter refused to cooperate.
La Russa filed suit and got a lot of grief for doing so, with most legal experts citing the Communications Decency Act (CDA) as a barrier to the suit. But, obviously, this is not a typical CDA situation. Yes, La Russa was seeking to hold Twitter liable for the “postings” of third parties, and that is classic CDA material. But there are some interesting side issues. For example, a website cannot encourage visitors to post copyrighted e-books for download and then expect to escape liability under the CDA because third parties are the ones actually posting the books. In that case, the Digital Millennium Copyright Act would trump the CDA. Like a copyright, people have a pecuniary interest in there own identities. Should Twitter be permitted to assist in those that would steal that identity?
The La Russa case will not be providing any answers to this question, because it has been withdrawn, but not before Twitter deleted the offending account. Most are reporting this story as a victory for Twitter, but didn’t La Russa get exactly what he asked for in the first place?
For more on this story, go here.
An International Context for the Single Publication Rule
I’ll return to explain the concept in more detail, but here is an article that very nicely summarizes the competing international approaches to the American Single Publication Rule.
Another Blogger Bites the Dust
Another blogger learned this week that you are judged by what you say.
Tara Richerson is a teacher in Washington. She had been blogging since 2004 and many of her postings were about her job. According to court records, when she was demoted from her position as a coach at the school, she wrote the following missive:
“Save us White Boy! I met with the new me today: the person who will take my summer work and make it a full-time year-round position. … But after spending time with this guy today, I think Boss Lady 2.0 made the wrong call in hiring him. … He comes across as a smug know-it-all creep. And that’s probably the nicest way I can describe him. … And he’s white. And male. I know he can’t help that, but I think the District would have done well to recruit someone who has other connections to the community. … Mighty White Boy looks like he’s going to crash and burn.”
The 9th U.S. Circuit Court of Appeals concluded that Richerson’s blog contained “several highly personal and vituperative comments” that justified the Central Kitsap School District’s decision to transfer her from her job as a curriculum specialist and instructional coach to a classroom teaching position. The court found that Richerson’s speech was disruptive, eroded work relationships and interfered with her job performance, which involved mentoring teachers.
“Common sense indicates that few teachers would expect that they could enter into a confidential and trusting relationship with Richerson after reading her blog,” the court wrote in its Tuesday opinion. “Accordingly, the district court did not err in concluding that the legitimate administrative interests of the school district outweighed Richerson’s First Amendment interests.”
The court ruled that Richerson’s blog attacking co-workers, the union and the school district was not protected speech, and therefore she was not unlawfully demoted over it.
According to court records, Richerson was transferred out of her coaching job in July 2007 after school officials discovered her blog months earlier. Another of the blog entries that Richerson came under fire for was one entry in which she allegedly attacked a teacher and union negotiator, who complained to school officials about it. It read: “What I wouldn’t give to draw a little Hitler mustache on the chief negotiator.”
The lesson to learn is that you can and will be held accountable for the things you say. Even if your comments do not cross the line into defamation, they may still be considered inappropriate for other reasons. It is disingenuous for people like Richerson to cry foul and cite the First Amendment when they are held responsible for their own comments. The First Amendment does not state that you can say whatever you want with no fear of repercussion. If someone feels strongly enough about an alleged wrong to blog about it, then they should be willing to stand by those convictions.
The oral argument in front of the Ninth Circuit Court of Appeal is fascinating, and can be heard in its entirety here. I explain to clients that judges and justices tend to paint with a broad brush, and if you find yourself arguing technicalities and minutia, you are probably not going to prevail. Richerson’s attorney did an outstanding job, but he was forced to argue that the adverse job action was based on benign blog posts, not the post set forth above. That was a tough argument to sell.
Communications Decency Act Shields Craigslist from Liability
I’ve explained here several times that the Communications Decency Act is a necessary evil because you could never have open forums for discussion on the Internet if the operators of the websites were required to read and approve every message posted. Perhaps the Amazons of the world would have the resources to hire a huge staff to monitor all postings, but any popular discussion site that started to attract thousands of visitors would likely be required to stop offering a public forum if it became responsible for the things posted by visitors.
Some attorneys still don’t understand this reality. Take the case of Richard M. Berman. Poor Richard was shot by someone using a handgun purchased from a for sale ad posted on Craigslist. He hired attorney Paul B. Dalnocky, who sued Craigslist for more than $10 million, claiming it was responsible for the handgun ending up in the bad guy’s hands. The civil complaint alleged Craigslist “is either unable or unwilling to allocate the necessary resources to monitor, police, maintain and properly supervise the goods and services” sold on its site. When interviewed for an article on Law.com, attorney Dalnocky said, “We weren’t seeing Craigslist as a publisher — we were seeing it as a regular business that should have monitored its business better. I mean, how can you run a business with millions of ads and have only 25 employees monitoring it?”
No, Mr. Dalnocky, the question is, how would a service like Craigslist be possible if attorneys could sue for things posted in those millions of ads? The answer is it wouldn’t be possible. You allege “millions” of ads are posted on Craigslist. Let’s assume a person could review 1000 ads during a work day. That’s probably not realistic, because that means the person would need to review more than two ads per minute (assuming an eight-hour work day with two 15 minute breaks). Some ads go on for pages so I don’t think one could really review more than two ads per minute, but let’s go with 1000 just to keep the numbers simple. Thus, Craigslist would need to hire 1000 employees for every one million ads posted. It’s going to be very difficult for old Craig to maintain his business model that permits me to post free ads for my 8-track tapes if he is required to hire thousands of employees.
And, Mr. Dalnocky, what would those thousands of employees be looking for, exactly? Guns can be legally sold, and I did not see anything in the court’s decision about any alleged illegality of the gun sale in question. Rather, your complaint alleged that Craigslist was liable because it breached its “duty of care to ensure that inherently hazardous objects, such as handguns, did not come into the hands of . . . individuals, such as Mr. Ortiz.” (Ortiz was alleged to have shot Richard Berman.) What, in that ad, would have put the reviewer on notice that this gun sale was going to end badly?
The attorney representing Craigslist is no doubt a subscriber to the Internet Defamation Blog, and therefore knew that the Communications Decency Act (CDA) is not limited only to claims for defamation. Craigslist moved for dismissal under §230, which states that no “provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider,” and that no “cause of action may be brought and liability imposed under any State law that is inconsistent with this section.”
The court properly dismissed the case under the CDA because, let’s say it all together, a website operator cannot be held liable for comments (or ads) posted by third parties, and is not liable for failing to somehow monitor those comments (or ads). One of the earliest cases involving the CDA was an action against Ebay. Someone sued, claiming that Ebay should be held liable for the counterfeit items that were being posted and sold, trying to impose on it an obligation to review and investigate every ad. Ebay prevailed in that action, and Craigslist properly prevailed in this one.
The full court decision can be found here.
Illinois Case May Provide Crack in Communications Decency Act
Speedskater Shani Davis
I think there is little doubt that someday a court will permit a circumvention of the Communications Decency Act. As explained here numerous time, the CDA makes a website or website provider immune from liability for content posted by others. But there are constant skirmishes at the fringe. For example, if the website somehow “highlights” the posting or adds its own editorial comments, does it then become responsible for the content? What if a court orders the poster to remove the defamatory content, but the site refuses to cooperate in the process? Can’t the argument then be made that the website operator is then publishing the content since the original poster has disowned it? And while the CDA contemplates that the original poster will be responsible for the defamatory content, what if the person who posted the content dies and the victim is left with no remedy?
This last hypothetical is precisely the issue that is presented by a case currently pending in Illinois. The mother of US Olympic speedskater Shani Davis is suing Google for refusing to remove a blog posting that was made by a user who has since died. There is no doubt that under normal circumstances, Google would be protected from immunity under the CDA. But the blogger, Sean Healy, died of cancer a year after publishing the article in question.
The post by Healy was entitled, “Memo to Cherie Davis,” and claims that the speedskater’s mother made disparaging comments about the views of the US Speedskating Federation. Cherie Davis claims in her suit that she made no such comment. She further claims that because Healy cannot be made to answer in damages and/or remove the content, Google must step up and make things right with this now dormant blog, that just sits on Google’s server, continuing to defame plaintiff.
I’m hopeful that this will be the case that opens a tiny crack in the CDA. I applaud the CDA for protecting websites from liability. As I have explained here before, if website operators became liable for the content posted by others, none could risk having a public discussion board. But I always contended that the open marketplace of ideas can still exist even if we make website operators subject to cooperating with court orders. If a court finds that content is defamatory, there is no reason that a site should fight to maintain that content. The website will be protected by the necessity of a plaintiff having to go to court to have that determination made. Website operators contend even that is too onerous, since they will then have to remove the content, but this is belied by the fact that website hosts, including Google, already comply with demands made under the DMCA to remove copyrighted material.
I’ll keep you posted on the results of this case.
Trial Judges Still Struggling With Application of Anti-SLAPP
A recent decision by the California Court of Appeal, which reverses a trial court’s decision to dismiss the underlying defamation case, beautifully illustrates how trial courts still do not understand the anti-SLAPP statute. It’s unfortunate the plaintiff had to go through an appeal in order to educate this particular judge. The following summary of facts and quotes are taken from the Court of Appeal’s opinion. I apologize for the long post and multiple citations, but I want to have a place where people can be directed for the proper anti-SLAPP considerations and standards.
The action appears to have roots going back to 2003, when there was an altercation between Rabbi Chaim Seidler-Feller, Director of Hillel at UCLA, and Rachel Neuwirth, a journalist working in the Los Angeles area. Neuwirth alleged that Seidler-Feller had attacked her without provocation in October 2003. Shortly after this attack, she alleges in her complaint, “disciples of Seidler-Feller maintained in public print that [she] had provoked the attack by making inc[e]ndiary statements” to him. Neuwirth denied these allegations. As a result of her injuries, she said, she sought legal redress and reached an “amicable settlement” with Seidler-Feller and Hillel accompanied by a letter of apology from Seidler-Feller, “published in various tribunals,” in which he “acknowledged that the attack upon [Neuwirth] was unprovoked, that he took full responsibility for said attack and apologized for his actions.” Continue reading
“Lying” Comment Was Not a Verifiable Fact Given Context
Tom Martino
Context is everything in a defamation action.
In the recent Ninth Circuit case of Gardner v. Martino, plaintiffs sold a new boat from their showroom. The buyer of the boat claimed the boat was defective, and went onto a radio show to talk about the failure of the plaintiffs to address the problems. During the show, the host, Tom Martino, listened to the complaints of the buyers and commented that the sellers were “lying” when they claimed that they had tested the boat after performing certain repairs.
The plaintiffs/sellers took umbrage with that remark, and sued Martino, the radio station and the production company for defamation. Defendants responded with an anti-SLAPP motion, claiming the statement was merely an opinion and therefore could not constitute defamation. The trial court agreed with defendants and ruled that as a matter of law the comments did not constitute defamation. Under the anti-SLAPP statute, plaintiffs were ordered to pay all of defendants’ attorney fees.
I have commented here before that far too many attorneys think they can take on a defamation action, treating it like any other tort claim. This case illustrates what can happen when the attorney does not fully understand all the nuances of free speech and defamation. No doubt when the attorney was told the radio host called the plaintiffs “liars” that was viewed as an automatic case of defamation. And, in fact, in most cases calling someone a liar would constitute defamation. But here, the attorney apparently failed to consider the context of the statement.
A true opinion cannot constitute defamation unless it is offered as an assertion of fact. While it was true that the radio program host accused the plaintiffs of “lying” to their customer, that could not seriously be taken as an assertion of fact given the context of the show. As the court observed, “The Tom Martino Show is a radio talk show program that contains many of the elements that would reduce the audiences’ expectation of leaning an objective fact: drama, hyperbolic language, an opinionated and arrogant host and heated controversy. In the context of the show, Martino was simply listening to the complaint of a caller, and possessed no independent knowledge of the facts beyond what he was being told. It could not be taken, in that context, that he intended his “lying” comment to be taken as a verifiable fact.
The two corporate defendants in this case were Westwood One and Clear Channel Communications, both huge companies. No doubt these communication giants hired big firms that billed hundreds of hours at $650 per hour. Now the plaintiffs, who felt hurt by being attacked on the radio and just wanted to clear their reputations, are on the hook for perhaps $100,000 in legal fees.
I am all in favor of taking steps to defend your reputation – it’s what I do – but proceed with caution with an attorney that really knows this area of the law.
Twitter comments basis for a Internet defamation lawsuit
Courtney Love
Twitter comments (along with others) have now become the basis for a Internet defamation lawsuit.
Courtney Love, always a class act, has been posting “tweets” about fashion designer Dawn Simorangkir, also known as Boudoir Queen. Simorangkir claims that Love failed to pay money that was owed to her. Love claims otherwise, and refered to Simorangkir as a “nasty lying hosebag thief”, as well as accusing her of being a drug addict and a prostitute, according to the Associated Press.
Assuming the comments were false, the statements are clearly defamatory, but the case will still present some interesting issues if it ever makes it to trial. Defamation is always about reputation, and defamatory remarks do not always translate to loss of reputation. Given the context of the statements and the person making them, will anyone believe that Simorangkir is guilty of the acts claimed by Love?
[Update] In March 2011, Love settled the Internet defamation lawsuit by paying Dawn Simorangkir a reported $430,000. So did Love learn anything from this experience? Apparently not.
Now she is being sued by her former attorney, Rhonda Holmes. Ms. Holmes is piqued that Love allegedly tweeted:
“I was fucking devastated when Rhonda J Holmes Esq of San Diego was bought off.”
Love is also alleged to have stated that she had been “hiring and firing lawyers” and claimed that Holmes had “disappeared” and stopped taking her calls after “they got to her.”
No reasonable person could interpret these statements as meaning anything other than Love was accusing Holmes of taking a bribe, but Love’s current attorney argued the point anyway. In a demurrer to the complaint he claimed that “there is no limit to one’s imagination regarding the possible meaning of a phrase like “they got to her.”
Right.
The Los Angeles Superior Court judge hearing the matter didn’t buy it either, and overruled the demurrer.
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 author of the blog published the following:
I would have to say that the first place award for “Skankiest in NYC” would have to go to Liskula Gentile Cohen. How old is this skank? 40 something? She’s a psychotic, lying, whoring, still going to clubs at her age, skank.
Yeah she may have been hot 10 years ago, but is it really attractive to watch this old hag straddle dudes in a nightclub or lounge? Desperation seeps from her soul, if she even has one.
Enjoy the pic.
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.)
[Update] As I predicted, the Judge ruled in favor of Liskula Cohen, holding that “the thrust of the blog is that [Cohen] is a sexually promiscuous woman”, entitling her to the information she was seeking and to pursue her legal action.
The creator of the site and the comments turned out to be a Rosemary Port, who claimed through her attorney that Google “breached its fiduciary duty to protect her expectations of anonymity.” Port claimed she was going to sue Google for millions of dollars, but apparently someone explained that such a suit would never fly, and she never pursued the action.
After revealing Rosemary Port’s identity, Cohen decided to drop her legal action, stating, “This is about forgiveness. It adds nothing to my life to hurt hers. I wish her happiness.” Sounds pretty classy and un-skank like to me.
