Archive for October, 2010

Suit Says Mom Blogger Promised Puff Piece for Dental Work

Thursday, October 28th, 2010

From Jose Martinez in the New York Daily News: Mommy blogger Lyss Stern agreed to write puff piece to pay off $45K dental bill then reneged: suit Almost as soon as Lowenberg & Lituchy DDS filed the lawsuit in Manhattan Supreme Court, they said they were filing paperwork to dismiss it. Odd.

Justice for a Blogger Ganged Up On By Sheriff and Church

Wednesday, October 27th, 2010

Out of Florida is an extremely interesting story involving religion, police, and anonymity for bloggers. Sandhya Bathija has posted about it on The Wall of Separation: I Sued The Sheriff: Unmasked Blogger Gets Some Justice In Florida. Bathija writes:

What would theocracy look like if it ever came to America? … After an anonymous blogger criticized Jacksonville’s First Baptist Church and its pastor Mac Brunson, Sheriff’s Office Detective Robert Hinson engaged in a crusade to find out the blogger’s identity. Operating at the church’s request, Hinson – a member of the congregation who served on the pastor’s security detail – even secured a subpoena from the State Attorney’s Office ordering the Internet service to provide the information.

The blogger, Tim Rich, ended up filing a federal civil rights lawsuit against the City of Jacksonville, the Jacksonville Sheriff’s Office, and an assistant state attorney. That suit has now settled to the tune of $50,000. As part of the settlement, the Sheriff’s Office has agreed to provide better training to its detectives on First Amendment issues.

Rich’s post on the settlement is here: FBC Jax Watchdog: Lawsuit Settled with Eye Toward Making Positive Changes

Jury Instructions on Blogs

Tuesday, October 26th, 2010

For a while now, trial judges have been careful to warn juries against using social media to communicate about their trial. Here is an example of how that is being done. Below are recent jury instructions from the case of Digital Ally, Inc. v. Todd Elder & Co. from a state court in Jackson County, Missouri.


Your deliberations and verdict must be based only on the evidence and information presented to you in the proceedings in this courtroom. Rules of evidence and procedure have developed over many years to make sure that all parties in all cases are treated fairly and in the same way and to make sure that all jurors make a decision in this case based only on evidence allowed under those rules and which you hear or see in this courtroom. It would be unfair to the parties to have any juror influenced by information that has not been allowed into evidence in accordance with those rules of evidence and procedure or to have a juror influenced through the opinion of someone who has not been sworn as a juror in this case and heard evidence properly presented here.

Therefore, you must not conduct your own research or investigation into any issues in this case. You must not visit the scene of any of the incidents described in this case. You must not conduct any independent research or obtain any information of any type by reference to any person, textbooks, dictionaries, magazines, the use of the Internet, or any other means about any issues in this case or any witnesses, parties, layers, medical or scientific terminology, or evidence that is in any way involved in this trial. You are not permitted to communicate, use a cell phone, record, photograph, video, email, blog, tweet, text, or post anything about his trial or your thoughts or opinions about any issue in this case to any other person or to the Internet, “facebook”, “myspace”, “twitter”, or any other personal or public web site during the course of this trial or at any time before the formal acceptance of your verdict by me at the end of the case.

If any of you break these rules, it may result in a miscarriage of justice, and a new trial may be required.

The complete document is available on Westlaw at 2010 WL 3417831.

N.H. Blogger King to Get Pre-Election Hearing

Monday, October 25th, 2010

Yesterday’s Nashua Telegraph reported that lefty New Hampshire blogger Christopher King has succeeded in getting his hearing for an injunction moved up to before the November 2 general election. King is seeking a court order to have him un-barred from Republican campaign events.

Kashmir Hill on Anonymous Flames

Friday, October 22nd, 2010

Forbes blogger Kashmir Hill discusses model Liskula Cohen, business student Carla Franklin, and Tornoto constable Adam Josephs – all recipients of online abuse – in a post about unmasking anonymous bloggers and commenters: Civilizing the Internet, One Lawsuit at a Time (For Now).

She observes:

People can be meaner online — it’s easier to be harsh in a digital communication when you don’t have look into the faces of those you’re lashing out at. … When flame throwers are cloaked in anonymity, the “harsh” dial is often turned up a few notches.

Update on Tarazi v. Geller

Thursday, October 21st, 2010

Andrew Welsh-Huggins of the Associated Press updates the Atlas Shruggs defamation lawsuit: Blogger, lawyer cite free speech in Ohio lawsuit.

(Original BLB post: Ohio Lawyer Sues Atlas Shrugs Blogger.)

Toronto Police Officer Takes Aim at Anonymous Commenters

Wednesday, October 20th, 2010

Adam Josephs dealing with bubble-blowing protestors in a YouTube video from TheRealNews.

An article in the Montreal Gazette written by reporter Mike Barber discusses the broader implications of a lawsuit brought by a Toronto constable against his online detractors: Toronto cop’s lawsuit shows bubble may be bursting for anonymous online comments.

The constable, Adam Josephs, gained fame as “Officer Bubbles” when a viral video showed him threatening to arrest a protester for blowing bubbles in close proximity to police during the G20 summit in June 2010.

The lawsuit asks for $1.2 million in damages and seeks the identity of 25 anonymous YouTube users.

Josephs’ lawyer, James Zibarras, decries his client suffering a “massive backlash that we say is disproportionate and incommensurate to what happened, and started getting to the point where it included threats.”

“There has to be a mechanism to bring some level of control to the situation,” Zibarras said according to the Montreal Gazette story.

Those comments make it seem like the gravamen of Jospehs’ complaint is more cyberbullying than defamation.

And that, in turn, makes the entire affair somewhat ironic.

It was Josephs’ demeanor, itself seen as bullying, which fired up his anonymous online tormentors. One imagines, of course, that the lawsuit will work in turn to extend the torrent of invective aimed at Josephs.

The internet may be new, but meanness, umbrage, and cyclical reprisal are as ancient as anything.

Blogger Bother in the Bathroom

Tuesday, October 19th, 2010

For Joe Miller, preserving conservative values apparently means using force to maintain distance at the urinal bank.

The security detail for Republican candidate for U.S. Senate Joe Miller of Alaska arrested online journalist Tony Hopfinger of Alaska Dispatch on Sunday, releasing him about 20 minutes later. They took Hopfinger into custody and handcuffed him after he peppered the candidate with questions and followed him into a bathroom after a town hall meeting at Central Middle School in Anchorage.

Miller explained his version of events to an Anchorage television station:

“It went very well until we started to leave the building. We had one individual that started to hound me all the way out the door,” Miller said to KTVA / CBS 11. “That’s fine, but you’re violating somebody’s personal space, following me into the bathroom – that just gets beyond the pale.”

Huh? It’s violating someone’s private space to follow them into a public bathroom asking questions? I’ll be darned. Over the years I could have had a lot of people arrested, including some law firm partners and a few of my clients, not to mention hundreds of drunk, chatty strangers at ballgames.

On a separate note, is Alaska Dispatch a blog or a newspaper?

There’s some kerfuffle over this.

The Miller campaign calls the Alaska Dispatch a blog and Hopfinger a blogger, including in phrases such as “irrational blogger,” “liberal blogger,” and “the blogger appeared irrational, angry and potentially violent.”

Now the Alaska Dispatch doesn’t refer to itself as a blog. It has “blogs” within it, but the operation calls itself in sum an “online newsmagazine” and emphasizes its employment of professional journalists and its commitment to turning a profit on ad revenues. But many blogs fit that bill.

Moreover, Alaska Dispatch doesn’t have a print component and it was started by Hopfinger and his wife Amanda Coyne in their spare bedroom in 2008.

That sounds bloggish to me.

I conclude that for purposes of Blog Law Blog, Alaska Dispatch is a blog and Hopfinger is a blogger. But even if Joe Miller means “blogger” as an insult, Blog Law Blog does not. Blog Law Blog believes bloggers are respectable members of society. Even in middle school bathrooms.


Sally Brown Richardson on Virtual Property in Community Property Regimes

Monday, October 18th, 2010

File this one under: She got the Jeep, I got the blog.

Sally Brown Richardson has posted to SSRN a paper titled Classifying Virtual Property in Community Property Regimes: Are My Facebook Friends Considered Earnings, Profits, Increases in Value, or Goodwill? The paper is forthcoming in the Tulane Law Review.

Here is the abstract:

Virtual property, or that property which exists only in the intangible world of cyberspace, is of growing importance. Millions of people use some form of virtual property every day, be it an e-mail account, a blog, or a Facebook profile. Billions of dollars are spent to acquire property in the virtual world. And the economic and social impact of virtual property is only likely to increase at light year speed.

As the importance of virtual property continues to rise, laws pertaining to virtual property must similarly develop. Among the emerging legal issues yet unaddressed by scholarship or jurisprudence is how community property regimes will respond to virtual community (or separate) property. Because the acquisition of virtual property such as websites, domain names, e-mail accounts, and even Facebook pages, create a property interest, in the nine community property states, community property laws impact what rights spouses have in such property. Thus, spouses are on the brink of litigating issues such as whether a Uniform Resource Locator (URL) is community or separate property, whether a website generates an increase in separate property, whether e-mail contacts are profits, and whether Facebook friends create goodwill. Community property jurisdictions must be prepared to quickly adapt to the reality of virtual property if the regimes wish to avoid being left in the wake of cyberspace. To aid courts in their impending task of considering virtual property in a community setting, this Article examines how different forms of virtual property should be classified in community property regimes. After explaining the classification scheme within community property jurisdictions, the Article details examples of virtual property likely to be present in modern couples’ lives, and considers how the identified examples of virtual property should be classified.

Let the Sun Shine In

Friday, October 15th, 2010

One of the best legal tools available to bloggers and traditional journalists alike is the Freedom of Information Act.

FOIA, as it’s called, allows anybody to obtain copies of government records upon request. There are exceptions, of course. You can’t get national-security-sensitive classified materials this way, and you can’t get information such as tax returns or medical records that would violate an individual’s right to privacy. But you can get a lot. Once you realize the scope of what the government is required to turn over, it’s truly flabbergasting. We’re lucky to live in such an open society.

The best resource that I know of to help you navigate FOIA is the Federal Open Government Guide from the Reporters Committee for Freedom of the Press. RCFP also offers this super handy FOIA letter generator, although I personally would favor a slightly friendlier tone than what comes out of RCFP’s boilerplate. (The civil servant who will read your letter is compelled by law to respond, so you might as well be nice about it.)

You should also know that state governments generally have similar laws, sometimes called “sunshine” or “open records” laws. RCFP has a State Open Government Guide that can let you in on those laws as well.

Shirley Sherrod’s Prospective Lawsuit Against Blogger Andrew Breitbart

Thursday, October 14th, 2010

Although the controversy involving Shirley Sherrod got lots of press coverage several weeks ago, one issue that has escaped the spotlight is the possible legal liability. Yet that’s a live issue.

The former USDA employee stated that she will sue Andrew Breitbart, the conservative blogger who posted the edited video of Sherrod on his Big Government site.

But there’s no word that I could find on whether such a lawsuit is going forward.

The Christian Science Monitor has analyzed the prospective Sherrod v. Breitbart case saying, “The lawsuit could be a landmark for the blogosphere.”

Well, just about any case, before it starts, has the potential to wind up as a landmark. I’m not sure this one offers exotic, uncharted legal territory. But there is no doubt that the underlying controversy is an important paragraph in the history of the blogosphere. And a lawsuit, if it were filed, could wind up exploring the issue of what counts as malice or negligence in blog publishing. Such a lawsuit could also set precedent for who counts as a public figure in today’s hyper-interconnected era.

In case you need background: A heavily and deceptively edited video of a speech Sherrod gave to the NAACP Freedom Fund led to accusations that Sherrod was racist. U.S. Secretary of Agriculture Tom Vilsack then demanded and got Sherrod’s resignation. After the unedited tape was revealed, Vilsack apologized and tried to re-hire Sherrod with a promotion. Sherrod accepted the apology but turned down the job offer.

Finke Files Reposting Suit

Wednesday, October 13th, 2010

The Hollywood Reporter, Esq. reports that Tinsel Town blogger Nikki Finke of is pursuing a copyright infringement lawsuit in Los Angeles against, which allegedly reposted Deadline stories verbatim.

Hwd. Rptr.’s Matthew Belloni says the complaint is brought by Deadline’s parent, Media Corp., against Arthur Meyerovich and Alina Kaganovsky, who are alleged to be behind BoxOfficeWorld.

Vintner vs. Venters

Tuesday, October 12th, 2010

Winemaker Charles Smith and K Vintners LLC has filed a libel suit against anonymous commenters to a post on wine blog The Gray Market Report. The post that pulled in the allegedly defamatory comments is Charles Smith is a wine cartoon. Really.

Taylor Eason has blogged about the lawsuit at

The Gray Market Report was not sued, nor the blogger W. Blake Gray, nor Google, the host via Blogger. Instead, it’s a suit targeting John Does 1-10. Google has been served with a subpoena to turn over identifying information.

Gray Market Report has published the complaint and some details in a post headlined Attention readers: Charles Smith may be suing you.

The complained of comments accuse Charles Smith of being a “promoter” and “marketing-whiz” and not the winemaking brains in the operation. There’s also accusations of verbal harassment of employees.

The statements are good ones for exploring the issue of fact/opinion dichotomy in libel law. They are all somewhat close to the line, and you can bet it will be an issue as to whether the statements are factual assertions capable of defamatory meaning or unactionable expressions of opinion.

Peter Colwell: If You Are Reading This, You Are Engaged and Aware

Monday, October 11th, 2010

Peter Colwell has written a note in the William Mitchell Law Review titled “If You Are Reading This, You Are Engaged and Aware”: Serving the Diversity of Interests in Blogs Written by Service Members.

Here is an excerpt:

The current regulatory regime governing blogs written by members of the military comes from official policy memoranda, Army Regulation 530-1, Operations Security (OPSEC), and Uniform Code of Military Justice (UCMJ) articles. This regime fails to provide clear guidance to service members on what is required of them as bloggers, exactly what material they may publish on their blogs, and what the process is for review of blogs. The result is a perception of arbitrary punishment and a potential threat of “chilling” blogging by service members. Further, the regulatory scheme is centered on security considerations and fails to balance or adequately consider the other interests in blogs written by service members in combat zones.

This Note proposes that congressional legislation is necessary to regulate blogs written by members of the armed forces in combat zones. This legislation should weigh the concerns for operational and national security as well as the interests of service member authors, the military, the public, and the literary and journalist community to which these blogs contribute. Congress should enact a statute that creates a committee of civilian journalists and military officials to conduct reviews of blogs and only allow blog removal by vote. The journalists would have insight into journalistic concerns and ethics as well as the journalistic value of a particular blog, while the military representatives would be able to halt publication of blogs that present genuine security risks. The statute should establish concise guidelines, informed by First Amendment jurisprudence, for the review of the postings to curb the discretion of the committee, and it should require written reports on decisions to shut down a blog.

The cite is 36 Wm. Mitchell L. Rev. 5249.


Friday, October 8th, 2010

A while back I posted a news item about, a gossip blog that targets ordinary, non-celebrity people who have had the misfortune to wind up in an unflattering photograph, and then barrages them with a spleen-venting hate-filled spew of off-the-charts invective.

The site delivers cyberbullying with assembly-line efficiency.

Before you click on any links, let me warn you that should be considered “safe for work” only to the extent you are eager to experience the thrilling adventure of looking for a job in the midst of an economic meltdown. As a law professor who writes about media law, I figure I have a good-to-go explanation for anyone prying into my browsing history. But your results may differ.

Let’s take a look at’s legal disclaimer:, The world’s first ever reality blogger™ is all about gossip and satire. The content that is published contains rumors, speculation, assumptions, opinions, and factual information. Postings may contain erroneous or inaccurate information. All images are credited to their original location. The owner of this site does not ensure the accuracy of any content presented on ©

Wow. Well, good luck with that!

This is a sweepingly ambitious disclaimer. I’ve got to say, I can’t imagine it working. Proclaiming that you don’t ensure the accuracy of your content will be about as effective at preventing a defamation judgment as crediting sources of photographs will be in preventing copyright claims. Which is to say, not at all.

About the only way I could imagine a disclaimer like this having any chance at all would be if the publication making the disclaimer was engaged in some activity so socially worthwhile that it was guaranteed to gain the sympathies of the court.

But TheDirty is not crusading for civil rights or trying to save whales. They are not even trying to take jaded celebrities down a peg or two. Ambushing private people with a torrent of meanness and taunting is not the kind of thing that will charm a court into stretching the law.

TheDirty is a ticking A-bomb of litigation. Blog Law Blog will be watching (in a trench 10 miles away wearing welding goggles).

Artie Can Now Meow a Sigh of Relief

Thursday, October 7th, 2010

A LAWSUIT THAT GAVE YOU PAWS: Artie, the Boston-based blogging cat, is the beneficiary of the confidential settlement of a federal lawsuit over the reposting of a newspaper article. Eight lives and counting.

The bizarre Artiegate lawsuit is over. (BLB: Purr-loined Story Gets Cat Blog Sued)

Some months ago the Las Vegas Review-Journal, through its legal henchman Righthaven, sued Allegra Wong of Boston over her blog, written from the perspective of her cat, Artie, which allegedly reposted an LVRJ story about a fire at a bird sanctuary.

After bashing Wong, who is, or was, unemployed, with a claim for $75,000, Righthaven has now agreed to dismiss the matter pursuant to  a confidential settlement, as reported by Steve Green in the Las Vegas Sun. (Look at the last few paragraphs of the story.)

I’m guessing that something like $20 bucks changed hands. Maybe zero. The writing was on the wall that the court was looking to give Righthaven the absolute minimum amount of damages possible.

It’s too bad that the settlement is confidential, because I can imagine it was, for Righthaven, embarrassingly low. But I’m happy for Ms. Wong and Artie.

Does the R. Allen Stanford Criminal Trial Gag Order Apply to Blogs?

Tuesday, October 5th, 2010

Noting that there has been a willingness to attempt to try the R. Allen Stanford / Ponzi-scheme case in the press, Judge David Hittner of the U.S. District Court for the Southern District of Texas issued a sua sponte gag order [pdf] in the case on Friday.

Here’s the operative section:

[T]he Court hereby

ORDERS that from this date until the final disposition in this case: [the attorneys, the parties, all witnesses, and alleged victims,] their representatives, and their agents, including publicity agents, shall not give, authorize, or permit any extrajudicial statement to any person associated with any public communications media relating to the trial, the parties, the witnesses, or the issues in this case, which [may interfere with a fair trial and which is not public record].

Now, you tell me: Does that stop the victims, parties, and attorneys from blogging about the case?

The phrasing of the order is definitely from the era of old media. It’s written as if the people subject to the gag order are not themselves associated with “public communications media”. These days, aren’t we all?

On the face of it, it doesn’t look like the order bans blogging. But I can’t believe that Judge Hittner meant to bar parties and witnesses from trying the case on CNBC but meant to allow them to try the case in the blogosphere.

As a point of comparison, we are now seeing jury instructions that explicitly ban blogging by jurors about their cases. So why wasn’t this order phrased with the web in mind? This sure looks like another example of the judiciary failing to keep pace with changing times.

SCOTUS October 2010 Term Gets Underway

Monday, October 4th, 2010

Front of the U.S. Supreme Court building

It's another first Monday at 1 First St. (Photo: Eric E. Johnson)

Today is the first Monday in October, and that means the U.S. Supreme Court begins a new season at 1 First St, NE. It will be Elena Kagan’s first time on the bench.

Here’s what’s on the docket that could have relevance to blogs:

Snyder v. Phelps — The Kansas-based Phelps family carries on a series of highly bizarre, religion-fueled protests of funerals of soldiers killed in combat. The convoluted theology is hard to understand, but Fred Phelps and his followers choose to picket services for fallen heroes as a way of warning the world of God’s wrath toward gay persons. No, I can’t explain it to you. But suffice it to say they take both crazy and mean to new extremes. The question for the highest court is whether the First Amendment shields Phelps and friends from state-law judgments for intentional infliction of emotional distress. (SCOTUS Blog, CMLP)

Schwarzenegger v. Entertainment Merchants Association — Cyberviolence squares off against the Constitution. (Level 9: The First Amendment. And the screen taunts: FINISH HIM!!!) A California law restricts the sale of violent video games to minors. Will the Bill of Rights protect underage gamers from Sacramento lawmakers? (SCOTUS Blog)

AP Coverage of EFF’s Involvement in Righthaven v. Democratic Underground

Friday, October 1st, 2010

Associated Press logoIt’s nice to see that another newspaper reporter in Las Vegas is writing about Righthaven, that is, unaffiliated with the Las Vegas Review-Journal and in addition to Steve Green with the Las Vegas Sun.

Cristina Silva of the Associated Press is following the story now, and yesterday she reported (Forbes, on the Electronic Frontier Foundation’s involvement in one of the Righthaven suits, an action against Democratic Underground. (Complaint [pdf]; answer and counterclaim [pdf].)

I am quoted in the story:

“The news media has just not done stuff like this before,” said Eric E. Johnson, a University of North Dakota law professor who focuses on copyright infringement and intellectual property issues. “The news media has this sense of public responsibility and a deep sense of ethics and the public trust … this seems like a straightforward effort to make money. It’s mean.”