Archive for October, 2011

I’m on the New Lawyer2Lawyer Podcast

Monday, October 31st, 2011

Lawyer2Lawyer logoI’m on the new episode of the Lawyer2Lawyer podcast talking about the Virginia State Bar’s disciplinary case against attorney Horace Hunter because of his blogging. It’s a case that pits legal ethics rules against the First Amendment.

The host of the program is Bob Ambrogi, and other guests are Kevin O’Keefe, CEO of LexBlog, and Peter Vieth, legal editor of Virginia Lawyers Weekly.

I really enjoyed doing the show, and it’s a great case to talk about.

Trial of Accused Terrorist Blogger Tarek Mehanna Set to Open Today

Thursday, October 27th, 2011

Tarke Mehanna forward mugshotAccused terrorist blogger Tarek Mehanna (Image: Sudbury Police Department.)

Opening statements are expected to begin today in the trial of Tarek Mehanna on terrorism-related charges stemming from alleged support for Al Qaida.

Federal prosecutors say the 29-year-old, born in Pittsburgh and raised in Boston, aided Al Qaida by promoting the organization’s cause on his blog. Specifically, prosecutors say he translated into English distributed online Al Qaida texts originally written in Arabic.

Mehanna is asserting the First Amendment in defense. His lawyers argue that his speech is constitutionally protected, since it was not done in coordination with a terrorist organization. They have sought from the judge a jury instruction on constitutional free-expression rights.

Mehanna faces life in prison if convicted.

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It’s Over in Aurora: Ex-Mayor in Ontario Gives Up on Lawsuit Against Blog

Wednesday, October 26th, 2011


Ex-Aurora Mayor Phyllis Morris. (Image: Phyllis Morris Campaign, used without permission.)

Back in January, I blogged about the taxpayer-funded litigation campaign waged by the mayor of Aurora, Ontario. She got the town council to pony up funds to go after the Aurora Citizen blog and anonymous critics voicing opposition to Morris via the blog’s comments. As it turns out, the lawsuit didn’t help Morris’s political fortunes. Morris suffered a landslide loss in her bid for re-election. And then, the town council voted to de-fund her lawsuit – something that probably never should have been funded on the taxpayer dime in the first place. This summer, a judge rebuffed Morris’s attempt to get a court order to unmask the three anonymous contributors who were, apparently, the authors of the content Morris found most objectionable.

After that string of setbacks, Morris has now voluntarily discontinued her suit – meaning that she’s given up entirely on the litigation.

Thanks to Blog Law Blog reader Chris for sending me a note about this one.

The discontinuance is functionally a vindication for the defendants, who are blog proprietor-moderators William Hogg and Elizabeth Bishenden, contributor Richard Johnson, three anonymous commenters, and host WordPress.com.

It’s hard to tell what all exactly the material was that Morris contended was defamatory. Her suit claimed that material on the Aurora Citizen subject her to “ridicule, hatred and contempt.” But the what and why is not clear. A post from September 16, 2010 reprints a letter received from the town attorney demanding the removal of certain comments from the Aurora Citizen – a request the blog complied with, so we can’t see exactly what those comments were, and they seem to be about a different town official. Another post suggests that some material posted over the course of August 24, 2010 through October 2, 2010 was the basis of a defamation allegation at some point. So I’m guessing this and this might have annoyed her. But I can’t tell with any particularity what the offending language was.

Here’s what the Aurora Citizen had to say:

It was manifestly unfair that the defendants were put to the time and expense of legal fees at the hands of Ms. Morris, most especially in light of the fact that Ms. Morris used tax dollars to pursue them in what appeared to be a politically motivated attack intended to silence their efforts to hold her government accountable.

It is equally telling that Ms. Morris discontinued the litigation when she was called upon to fund it out of her own pocket rather than use taxpayer funds as initially intended. She was fully prepared to use town resources to support her private lawsuit, at the towns’ sole risk and expense to her sole potential gain, despite the fact that the Town’s Code of Conduct states clearly that “public office is not to be used for personal gain”.

While the defendants, Hogg and Johnson defended their principles with their own funds — Phyllis Morris did not.

Hopefully, there has been a lesson learned from this experience. Freedom of expression is a fundamental democratic right of all Canadians — but it is a right that will be attacked, and will need protection.

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Unfounded Allayances for a Misarchitected Law

Tuesday, October 25th, 2011

Huge pile of building rubbleMisarchitected.
(Photo: EEJ)

Over at Technology & Marketing Law Blog, Eric Goldman has written that the just-enacted California Reader Privacy Act may impose a new burden on individual bloggers who are on the receiving end of subpoenas. Paul Alan Levy, a lawyer with Public Citizen, a leading public-interest law firm, doesn’t agree. Levy says that the phrase “commercial entity” in the bill could not be construed to cover individuals because, individuals can’t be “entities.”

In this post, I’m going to take issue with what Levy says, and I’m going to offer some things to bolster Goldman’s critique.

Let me note at the outset that Levy is a heavy-hitting litigator who fights the good fight. He’s on the right side of battle after battle, doing pro bono impact litigation that makes our world a better place. So, I’m certainly not at odds with Levy in the greater scheme of things. But I do think that Goldman points out a serious flaw in California’s new privacy law, one that is bad for bloggers, and one that’s worth dwelling on for a bit.

Also, I’m a California litigator. I’ve spent a lot of time puzzling over California statutes. I’ve come to believe that California statutory law needs some watchdogging. So I offer my comments in that vein.

Here’s Levy’s argument that the statute won’t apply to individual bloggers:

… Professor Goldman ignores the limiting impact of the word “entity.” An individual is not an entity; rather, an entity is defined by Black’s Law Dictionary as an organization whose identity is separate from its members.

First, while a dictionary can be helpful resource for readers stumbling across unfamiliar legal words, it is not, at least in my view, a particularly persuasive foundation for interpreting a statute. Regardless, however, I don’t think the definition that Levy cites excludes natural persons. If you look at the whole definition, it clearly says that an entity can have a separate legal existence from its members, but the definition doesn’t say that a natural person can’t be an entity.

At any rate, dictionary definitions are really beside the point. The fact is, there’s a plentitude of legal precedents considering “entity” to embrace an individual person. For instance, many statutory schemes explicitly define “entity” to embrace an individuals. One prominent example is the U.S. Bankruptcy Code. See, 11 U.S.C. § 101(14).

Moreover, courts have plainly used the word “entity” to refer to an individual person. In discussing what the word “individual” meant, for instance, New York’s high court held, “An individual is one entity, one distinct being, a single one, and when spoken of the human kind means one man or one woman.” People v. Doty, 35 Sickels 225, 1880 WL 12385 (N.Y. 1880).

In defining “sole proprietorship,” a D.C. court used the word “entity,” saying, “A sole proprietorship is an entity that is so identified with its owner that the business either must undergo a fundamental change or cease to exist upon the owner’s death or retirement.” Hunter Innovations Co. v. Travelers Indem. Co. of Connecticut, 605 F. Supp. 2d 170, 173 (D.D.C. 2009).

Levy makes other arguments, however:

The statute itself confirms this construction, in that it limits any disclosure (voluntary or compelled) to a “government entity,” but limits compelled disclosure to “any person, private entity, or government entity.”

This is a helpful argument, one which I find somewhat persuasive. But it’s not the end of the matter. The fact is, “person” under the law frequently includes such entities as corporations. Often – I would even say most of the time – when the law means an individual human being, and not things such as corporations, the law uses the term “natural person.” In fact, a neighboring section of the California Civil Code, Section 1798.3, says that “‘individual’ means a natural person” and “‘person’ means any natural person, corporation,partnership, limited liability company, firm, or association.” If “person” includes “corporation,” that arguably makes the term “private entity” redundant of “person,” except that ”person” might embrace a public corporation (i.e., a corporation with publicly traded shares), whereas, perhaps, “private entity” would not.

All of this going around in circles, of course, just illustrates that this statute is poorly drafted. It’s another home run by the folks in the California Legislature. I wish someone would come up with a ballot initiative to force the California Legislature to employ a huge army of well-paid staff to draft and analyze legislative language. It would be worth every penny. The alternative is half-baked text or the made-to-order work product of lobbyists. (Although, with the ACLU, EFF, and (ahem) Google lobbying for this, you’d think made-to-order language would have been pretty good.)

Okay, let’s go on to Levy’s next argument:

A similar understanding that an individual is not an entity is shown by the fact that “government entity” is defined to include any “state or local agency” or “any individual acting or purporting to act for or on behalf of a state or local agency.” If “government entity” included individuals, this last clause would not be needed[.]

Hmmm. I get exactly the opposite out of that. By including individuals within the term “government entity,” the legislature, it seems to me, shows that it understands individual persons to qualify as a kind of entity.

Levy’s bottom line:

So the individual blogger is plainly off the hook as a “commercial entity.” A corporation that blogs, yes. A partnership blogs, yes. But not an individual.

I very much disagree with the phrase “plainly off the hook.” I’d go with “arguably.” Levy makes a fine argument. But, in my mind, that’s all it is: an argument. Take it from me – a member of the California bar who has spent approximately eleventeen bazillion billable hours researching and briefing issues of California statutory interpretation: This is not an easily-disposed-of issue.

But while we are on the subject of phraseology, I note that Goldman’s word for describing the new statute is “misarchitected” – a word which, technically speaking, doesn’t seem to exist. That’s not a knock on Goldman. To the contrary, as I’ve pointed out before, I think it’s part of the job of a law professor to use big words and to even make up new words. Every once in a while, I slip a big, nonexistent word by law-review editors. And count me on board with this one. I’m already thinking about how I can stick misarchitected into one of my working manuscripts.

In the meantime, when it comes to the Reader Privacy Act, I simply do not find Levy’s allayances persuasive. Thus, I must offer the California Legislature my regretulations on a job not-super-well-done.

Later this week, I’ll explain my biggest problem with the Reader Privacy Act.

More from me:

Yikes! Is My Blog Regulated By California’s Reader Privacy Act? Is Yours?

Monday, October 24th, 2011

Looking up at the California capitol dome on a sunny day
The California Capitol. (Photo: EEJ)

Well, this is terrifying.

Eric Goldman, in a new blog post, hypothesizes that California’s newly enacted Reader Privacy Act could be read to impose statutory requirements on bloggers. The law requires “book services” to give notice to persons who are the target of a personal-information-seeking subpoena served on the book service. In other words, if someone throws a subpoena at an online book service in order to find out what books someone is reading, the book service has to first reach out to that someone before turning over the information.

So far, that doesn’t sound too bad.

But where Professor Goldman gets alarmed … (Let me just pause to note that while I would feel comfortable calling Eric Goldman by his first name, if I start saying “Eric argues” or “where Eric gets alarmed” on this blog, people are going to think I’m talking about myself in the third person. And while I’m generally okay with people thinking I’m a bit eccentric, I don’t want people thinking I’ve got the mindset of a marginal presidential candidate who is slowly losing touch with reality.)

So, anyway, as I was saying, where Professor Goldman gets alarmed is in looking carefully at who qualifies as a “book service” and who is therefore is obligated under the new law:

Let’s look closely at who is required to comply with the law — recognizing that the statute has a private cause of action that will be enforced by a rapacious privacy plaintiffs’ bar.

What?!? A “rapacious” plaintiffs’ bar?!? In CALIFORNIA?!?!? I can’t believe that. Anyway, as Goldman was saying …

[C]learly this covers Amazon and other online book retailers. But in this day and age, what is a “book” and, more importantly, what isn’t? The statute defines a book as:

paginated or similarly organized content in printed, audio, electronic, or other format, including fiction, nonfiction, academic, or other works of the type normally published in a volume or finite number of volumes, excluding serial publications such as a magazine or newspaper

… [W]hat about blogs? Are they “book services”? Before you discount the latter, consider that many blogs are, in fact, paginated (at least in the URL–see Blog Law Blog as an example).

Isn’t that awesome? I did a nested double-blockquote! Who knew you could even do that? Hey, wait a minute! That’s ME he’s talking about! AIYEEEAAHHH?!?!? There’s nothing like waking up in the morning and finding out that the California legislature has just done something that might expose you to private plaintiffs’ actions.

But wait, I can actually breathe a sigh of relief, because I’m pretty confident I don’t count as a “commercial entity” under the law. And since I’m not a commercial entity, the law’s requirements don’t apply to me.

But what about you, dear reader? Does your blog have advertisements on it? Even AdSense or Amazon affiliate links could, in Goldman’s view, possibly expose a blogger to “commercial entity” status.

And that’s just one more reason not to have ads on your site. As I said in regards to the question of whether having an ad-bearing blog imposes tax liability (in a post that my WordPress installation faithlessly labeled “page 1075“):

My advice for most bloggers is this: Dump the ads. Why bother putting ads on your blog unless it is going to make you substantial amounts of money? Ads clutter up blogs. They look terrible, and they are often for products that are either ridiculous (like herbal cures) or kindov depressing (like life insurance). That detracts from a user’s experience. And if ads cause you to have legal trouble – and even trying to figure out if you have legal trouble is a kind of legal trouble – then you should flush them down the drain.

I’ll have more to say on California’s Reader Privacy Act in posts this week. I’ll weigh in on the debate between Paul Alan Levy of Public Citizen and Goldman about whether an individual can be an “entity’ under the new act. I’ll also explain my biggest problem with the new law.

State v. Turner: Incitement to Violence and Jurisdictional Questions

Friday, October 21st, 2011
Mugshot of "Hal" Turner from the Connecticut State Capitol Police

Connecticut State Capitol Police mugshot of blogger Harold Turner

As a new feature here at Blog Law Blog, I’m publishing selected court opinions in their full form.

The first opinion I am putting up is State v. Turner, a new trial court opinion out of Connecticut.

In this criminal matter, blogger Harold Turner (“Hal Turner”) is alleged to have violated Connecticut’s incitement statute with material he posted to his Turner Radio Network or “TRN” blog (which Google’s Blogger has taken offline).

Upset by a pending bill in the Connecticut legislature regarding finances of the Catholic church, Turner, while being located in New Jersey, is alleged to have blogged:

TRN advocates Catholics in Connecticut take up arms and put down this tyranny by force. To that end, THIS WEDNESDAY NIGHT ON THE “HAL TURNER SHOW” we will be releasing the home addresses of the Senator and Assemblyman who introduced bill 1098 as well as the home address of Thomas K. Jones of OSE. …

It is our intent to foment direct action against these individuals personally. These beastly government officials should be made an example of as a warning to others in government: Obey the Constitution or die.

If any state attorney, police department or court thinks they’re going to get uppity with us about this, I suspect we have enough bullets to put them down too …

Turner was arrested after this post and before the home addresses were released.

Turner claimed he was protected by the First Amendment and that, as a jurisdictional matter, the Connecticut statute shouldn’t apply to blogging he did in New Jersey.

On the extraterritorial jurisdiction issue, the court quoted precedent to hold that since the threatened action was “closely tied to the public welfare of” and was “intended to produce … detrimental effects within” Connecticut, the court had jurisdiction under the statute.

On the First Amendment question, the court applied the U.S. Supreme Court’s standard announced in Brandenburg v. Ohio (1969). Under that case, in order to qualify as incitement, and therefore be denied First Amendment protection, the speech at issue must be “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In other words, the keys are imminency and likelihood.

The court held that blogging Tuesday about “THIS WEDNESDAY NIGHT” qualified as imminent.

As to likelihood, one might wonder how likely it really was that such a blogged rant would actually produce action. Indeed, it does seem a little dubious to believe that Turner had some reader out there ready to do his bidding. But the court held – properly I think – that this issue should go to the jury. In sum, the judge’s reasoning was: These are crazy times and there are lots of crazy people out there. In the court’s own words:

Of course, most Connecticut Catholics or other citizens would not have been persuaded by the defendant’s message to take up arms and attack state officials with physical force. However, the court cannot overlook the fact that we live in an age of terrorism and violence, including violence concerning difference in religious doctrine, and that there are unstable individuals with access to firearms … One need only go back approximately ten years from today’s date to recall the devastation that religious fanaticism can produce in this country.

The full court opinion:

More:

Legal Guide to Blogging Occupy

Wednesday, October 19th, 2011


Photo: David Shankbone, CC BY 2.0.

The wonderful folks at the Citizen Media Law Project of Berkman Center at Harvard Law School have put together a guide for citizen journalists covering Occupy Wall Street. They have done a tremendous job of going through the relevant law in a very comprehensive, yet very concise way. And it makes for interesting reading even for those who are not planning to go to Zuccotti Park and blog, tweet, or snap pictures for Flickr.

Among the questions they tackle:

  • Do I have the right to record police action at the protest?
  • Do I have a right to record the protesters?
  • May the police search me?
  • May the police seize my camera and view its contents?

Here are just a few interesting tidbits from the guide:

  • “There is no law in New York that prohibits the publication of private facts about individuals, and so you cannot be sued in civil court for publishing such facts” [Other states are contrary –EEJ]
  • “You might also have a specific First Amendment right to record the activities of the police in public. This right has been recognized in jurisdictions outside of New York, and would trump any state law that would otherwise prohibit such recording. However, no New York court has ruled on the existence of this right.” [Wouldn't it be interesting if Occupy Wall Street forced the issue in this jurisdiction? –EEJ]

Angela Daly: Private Power and New Media

Friday, October 14th, 2011

Logo of the European University InstituteAngela Daly of the European University Institute’s Department of Law has posted to SSRN Private Power and New Media: The Case of the Corporate Suppression of WikiLeaks and its Implications for the Exercise of Fundamental Rights on the Internet (SSRN No. 1772663).

Here’s the abstract:

The focus of this paper will be the recent conduct of various corporations in withdrawing Internet services provided to information portal WikiLeaks in light of the controversy surrounding WikiLeaks publishing classified documents of correspondence between the US State Department and its diplomatic missions around the world in late 201’3 The implications for freedom of expression (especially the right to access information) on the Internet will be examined in the wake of WikiLeaks, particularly in the context of the infringer being a private actor, and one comprising a mono- or oligopoly. The motivation of these private actors in contributing to the suppression of WikiLeaks will be assessed to examine whether it constitutes an example of Birnhack and Elkin-Koren’s ‘invisible handshake’ i.e. the ‘emerging collaboration’ between the state and multinational corporations on the Internet that they posit is producing ‘the ultimate threat’. The legal recourse open to WikiLeaks and its users for the infringement of fundamental rights will be examined, especially the First Amendment to the US Constitution since the geographic location for these events has mostly been the USA. Finally, the postscript to the WikiLeaks controversy will be considered: the “information warfare” conducted by hackers will be examined to determine whether the exercise of power of these Internet corporations in a way which infringes fundamental rights can be checked by technological means, and whether hackers are indeed the true electronic defenders of freedom of expression.

UK Anti-Terrorism Law Invoked Against Dad Who FB’d Photo of Daughter Eating Ice Cream in Mall

Tuesday, October 11th, 2011

Four-year-old girl eating ice cream on a seat fashioned like a pink Vespa scooter

The face of terrorism? (Photo: Chris White)

Chris White used his cell phone to take the adorable photo at right of his 4-year-old daughter eating ice cream in the Braehead Shopping Centre in Glasgow, Scotland. And with that, Mr. White took his fateful step toward becoming a terrorist – or so it would seem in the view of authorities who then swooped down on him.

To be entirely frank, I would understand authorities accusing me of terrorism for bringing my 3- and 6-year-old boys into a shopping mall. They go berserk in public spaces. Generally, you can’t capture a non-blurry photo of my boys with a cell phone – they move too fast. Often they are moving fast in a way that constitutes an immediate threat to property and person. But this photo of Chris White’s daughter seems to me to have nothing-to-do-with-terrorism written all over it.

I will let Mr. White explain what happened in his own words:

Walking down the shopping mall a man approached me from behind as I was carrying my daughter in my arms. He came from behind me, cutting in front of me and told me to stop. That was quite a shock as I am wary of people with crew cuts and white shirts suddenly appearing in front of me [Me too. –EEJ], but then realised he was a security guard. He then said I had been spotted taking photos in the shopping centre which was ‘illegal’ and not allowed and then asked me to delete any photos I had taken. I explained I had taken 2 photos of my daughter eating ice cream and that she was the only person in the photo so didn’t see any problem. i also said that I wasn’t that willing to delete the photo’s and there seemed little point as I had actually uploaded them to facebook. He then said i would have to stay right where I was while he called the police …

The older police officer … said that there had been a complaint about me taking photos and that there were clear signs in Braehead shopping centre saying that no photographs were allowed. I tried to explain that I hadn’t seen any clearly displayed signs and that I had taken 2 photos of my daughter. … He then said that under the Prevention of Terrorism Act he was quite within in his rights to confiscate my mobile phone without any explanation for taking photos within a public shopping centre[.] … He then said on this occasion he would allow me to keep the photos, but he wanted to take my full details. Name, place of birth, age, employment status, address. … The police officer also said that the security guard was within his rights to now ask me to leave Braehead Shopping Centre and bar me from the premises which I was happy to oblige.

The UK Prevention of Terrorism Act apparently allows the UK’s Home Secretary or a court to issue a “control order” that can restrict a terrorist suspect’s liberty in various ways, including prohibiting the person from possessing a mobile phone. I don’t see in the act where it allows a police officer to exercise that power on the spot when confronting a person the officer believes to be a suspect. But maybe someone who understands UK law better can chime in on that.

Well, after Mr. White started a Facebook page called Boycott Braehead, the story was picked up by the BBC, and within hours the management of Braehead was apologizing and announcing a change in policy so that people will be able to take photos of friends and family. They are also saying they will implement the change at all 11 centers owned by the same company.

Meanwhile, the Boycott Braehead page has 22,381 likes. Check that: 22,475. (It’s going up as I write this.) Now it’s 22,498.

More:

Everybody Loses: Tarazi v. Geller Settles

Monday, October 10th, 2011
Headshots of Tarazi and Geller

Attorney Tarazi and blogger Geller (Photos: Tarazi, Geller)

Ohio attorney Omar Tarazi has settled his lawsuit against Atlas Shrugs blogger Pamela Geller. The defamation claim stemmed from Geller’s allegations that Tarazi had ties to terrorists.

Under the terms of the settlement, Geller must delete five posts. No money changes hands.

Both sides are claiming victory – Of course.

In an end to what she termed “litigation jihad,” Geller blogged about the settlement, ”Islamic supremacism has suffered a stunning and well-deserved defeat, and a good, stiff kick in the ass.”

Tarazi was more subdued, blogging, “Pamela Geller finally caved in and agreed to permanently take down all of her defamatory posts regarding me to settle the lawsuit.”

The row came out of the 2009 case of Rifqa Bary, an Ohio girl who ran away from her Muslim parents and converted to Christianity. Tarazi was the attorney for Rifqa Bary’s parents. Bary said that her father had threatened to kill her for apostasy. (Authorities were apparently unable to find any corroboration for Bary’s allegation.) Geller, according to a quote on her site, is the “heroine of the right wing blogosphere.” She is also the executive director of a group called Stop Islamization of America

So, who really won?

Well, for fans of our winner-take-all adversarial system of civil litigation, that’s the shame of settlements. You really can’t say who won. Every time there’s a settlement, both sides can say they’ve reached a favorable outcome. That’s true by definition.

But if you want my outsider opinion, I would say nobody won. In fact, I think they both lost.

Geller is taking down her posts. That means she’s been muzzled. That’s clearly a loss for someone who puts herself out there, according to quotes on her website, as “a paragon of courage and fearlessness” and “an irrepressible firebrand.”

Tarazi, on the other hand, is getting no money out of the suit. The litigation was undoubtedly expensive for him to pursue, and when you ask for $10 million as an opening demand and then walk away with nothing, that’s a defeat in my book.

My reading between the lines is that both sides got tired of pursuing this and agreed to call it off.

In our adversarial system of justice, if everyone gets tired of fighting, that’s not only a loss for both sides, it’s a defeat for the system.

Tarazi said about the settlement, “I am … look[ing] forward to moving on with my life.”

How sad is our litigation system when a lawyer plaintiff wants to move on with his life?

More:

Upcoming Media Law in the Digital Age Conference in Atlanta

Wednesday, October 5th, 2011

Logo for Media Law in the Digital AgeKennesaw State University’s Center for Sustainable Journalism and the Citizen Media Law Project of Harvard University’s Berkman Center are putting on a one-day conference in Atlanta on October 22, 2011 called Media Law in the Digital Age.

It looks like an excellent conference. They’ve got some great panelists that I’d love to see, including:

  • Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press
  • Eric P. Robinson, blogger-proprietor of our cross-continent rival blog, Blog Law Online, and deputy director of the Reynolds Center at my hometown college, the University of Nevada, Reno
  • Carlos Miller, blogger-proprietor of the Photography is Not a Crime blog, and double-arrestee for taking pictures of police officers
  • Victor Hernandez, director of domestic newsgathering for CNN’s U.S. operations
  • David McCraw, in-house counsel for the New York Times in charge of newsroom legal affairs and FOIA litigation

I wish I could go myself. Leonard Witt, j-school prof at Kennesaw State and exec director of the Center for Sustainable Journalism, passed along to me a promo code you can use to get a 15% discount if you register for the conference: MLDA11

I feel very special handing out discount codes. Huh? What’s that? No, I don’t have any discount codes for Christian Louboutin shoes. Gosh, my blog’s not that exciting.

The ALL CAPS Defense to Defamation

Monday, October 3rd, 2011

Sucks VERY Corrupt Liar EXPOSEFollowing up on Obsidian Finance Group v. Cox, should we go ahead and Confront the ELEPHANT IN THE ROOM?

The case introduces an underappreciated strategy for sidestepping defamation liability. Call it the ALL CAPS libel defense.

If you look closely at the decision, the key behind Cox’s victory seemed to be her wild use of ALL CAPS, Title Caps, and bold typeface, combined with a strong helping of over-the-top invective and continual references to forthcoming proof.

Take a look at this analysis from U.S. District Judge Marco A. Hernandez [pdf]:

Finally, the statements are not sufficiently factual to be susceptible of being proved true or false. Cox repeatedly poses her statements as questions or asserts that she will prove her accusations. For example, she asserts that “a Whole Lot” of the “Truth” is “Coming Soon,” that she “intend[s] to Expose every Dirty Deed,” that Padrick “WILL BE EXPOSED,” that “YOU [meaning Padrick] will BE Indicted SOME TIME, someday,” and that she “WILL PROVE IT ALL.” Padrick Decl. at pp. 1-13. She tells the reader to “STAY TUNED,” and she asks “Kevin Padrick, Guilty of Tax Fraud?” Id. She also states that Padrick is a “cold hearted evil asshole” and is a “Cruel, Evil Discriminating Liar.” Ex. 1 to Padrick Decl.

Defendant’s use of question marks and her references to proof that will allegedly occur in the future negate any tendency for her statements to be understood as provable assertions of fact. Her statements contain so little actual content that they do not assert, or imply, verifiable assertions of fact. They are, instead, statements of exaggerated subjective belief such that they cannot be proven true or false.

Considering all of the statements in the record under the totality of circumstances, the statements at issue are not actionable assertions of fact, but are constitutionally protected expressions of opinion. Plaintiffs’ motion for summary judgment on the liability of the defamation claim is denied.

One way of thinking about this is that Cox’s unconventional style underminded her own credibility to an extent that the court was loathe to treat her allegations seriously enough to make them the basis of a libel case. I’m sorry if that’s harsh. (I know Ms. Cox will probably read this.) But that’s how I interpret the judge’s ruling.

So, I guess the lesson is that if you are going to defame someone, (1) put your foot on the gas, (2) put your pinky on the shift key, and (3) DON’T HOLD BACK!