Blogger Hal Turner Pursues §1983 Case After Acquittal on Threats Charges

February 5th, 2013 by Eric E. Johnson

Blogger Hal Turner of North Bergen, N.J. is currently pursuing a federal civil-rights lawsuit against the Connecticut State Capitol Police. The cause of action is under 42 U.S.C. §1983 – the general civil-rights statute that allows lawsuits against state officials acting in violation of the federal Constitution.

Last year, Turner was arrested for comments he made on his blog that were interpreted by as a threat against Connecticut state legislators. He wrote, “TRN advocates Catholics in Connecticut take up arms and put down this tyranny by force. … 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.” (Blog Law Blog, Oct. 21, 2011: State v. Turner: Incitement to Violence and Jurisdictional Questions)

Turner ended up winning an acquittal. Now he is seeking $50 million in his civil suit.

Most recently, Turner is proclaiming a victory of sorts in that suit because the State of Connecticut has retained outside counsel. His statement says, “On Friday, January 25, 2013, a Partner from the mega law firm McCarter & English, LLP filed his appearance in the case and asked the US District Court in New Jersey for an extension of time to answer Turner’s lawsuit. This represents a significant change from the state’s prior decision to utilize its own Attorney General’s Office, which assigned Assistant Attorney General Philip Miller to the case.”

I’m not sure what it means that the state has obtained outside counsel. McCarter & English is a large regional law firm, although I don’t think it is accurate to call them a “mega firm.”

Turner is something of a self-employed First-Amendment tester. He apparently started out as a frequent caller to conservative talk radio shows, then branched out into blogging and webcasting. He currently operates the Turner Radio Network, which bears no relation to media tycoon Ted Turner. (And I can’t figure out why neither Ted Turner, nor his merger-partner Time Warner, hasn’t shut down Hal Turner’s use of “Turner Radio Network” name on trademark grounds.)

No matter how much you like the First Amendment, Hal Turner is one of those people who is hard to root for. His varied causes have included Holocaust denial, white-supremecist causes, and threatening judges.

While involved with white-supremecist groups, Turner was a paid informant on those groups to the FBI. But any effort on his part to work against those groups can contextualize only so much of his ranting.

In June 2009, angered about a case upholding municipal handgun ordinances, Turner blogged that federal judges of the Seventh Circuit Court of Appeals “deserve to be killed” and, referencing a Thomas Jefferson quote, wrote that “their blood will replenish the tree of liberty.”

Those comments got him a conviction in 2010 with a 33-month federal sentence. He was released from prison in 2012 to serve out the remainder of his sentence from a halfway house in New Jersey.

Some Blog Law for Super Bowl Sunday

February 3rd, 2013 by Eric E. Johnson

NFL logoHappy Super Bowl Sunday!

For some NFL-related blog law, I’ll refer you to a paper I wrote, The NFL, Intellectual Property, and the Conquest of Sports Media, 86 North Dakota Law Review 760 (2010).

It includes mention of the NFL’s extremely aggressive stance toward bloggers that attempt to do play-by-play coverage of games, including it’s ejection of a New York Newsday reporter from Giant Stadium for live blogging.

My conclusion is that the NFL’s press policies and its assertions of intellectual-property ownership represent a threat to press freedoms of the sports and news media.

Sense of Personal Betrayal at Root of Real Housewives Star Suit Against Blog Commenter

January 31st, 2013 by Eric E. Johnson

Reality-television star Lisa Hochstein is suing a blog commenter for saying Hochstein “was an escort who also did soft porn in Vegas.”

Hochstein, who is an ensemble case member of Bravo’s The Real Housewives of Miami, says the defendant, Jessica Lederman, has been to Hochstein’s house. And that’s apparently what spurred her to sue.

“This person is an acquaintance we’ve invited in our home and who has smiled in our faces. She had no shame in saying these horrible things,” Hochstein told the Miami Herald. “The fact that she knows me and I’ve seen her in my home, well, it just sits the wrong way . I’m not going to go after every blogger and commenter out there. Trust me, I’ve been called way worse. I have thick skin as part of this whole show, but this really struck a chord.”

The legal claims appear to be intentional infliction of emotional distress and defamation with a prayer for $15,000.

Hochstein says she didn’t file the lawsuit for publicity reasons. Instead, it’s personal.

“I didn’t want it to get out of hand and I’m all for freedom of speech, but when you know someone personally and act like you’re friendly with them and then go making an accusation like that, it’s a big deal. What have I done to her?”

More:

Miami Herald: #RHOM’s Lisa Hochstein speaks out on controversial blog commenter lawsuit

TMZ.com: ‘REAL HOUSEWIVES’ STAR Sues Internet Commenter Over Call Girl Remarks

Sunshine Week 2013 Set for Mid-March

January 30th, 2013 by Eric E. Johnson

Sunshine Week – Your Right to KnowSunshine Week, a journalist-created annual event to raise awareness about open government, will be held March 10–16, 2013. The initiative is being coordinated by the Reporters Committee for Freedom of the Press and the American Society of News Editors.

A schedule of events, many of which will be in Washington, D.C., has been put up at the event’s website.

Sunshine Week is sponsored annually by the John S. and James L. Knight Foundation. Corporate mass-media firm Bloomberg LP has kicked in a grant for 2013.

What is now Sunshine Week was started as Sunshine Sunday in 2002 by the Florida Society of Newspaper Editors. The group launched the event in response to efforts afoot in the Florida legislature to add several exemptions to the state’s public-records law. FSNE credits its initiative with leading to the defeat of around 300 exemptions proposed in the Sunshine State legislature.

Blog Law Blog can’t help but wonder if the Florida-born Sunshine Week is meant to correspond with Spring Break in Daytona Beach. The timing sure is peculiar. And, when you think about it, open-records laws and in-mouth margarita mixing can both lead to exposures of a type. Yikes. Well, here’s to hoping for more being revealed by governments than drunk college students this spring.

Aaron Swartz, Champion of Online Freedom, Dead at 26

January 15th, 2013 by Eric E. Johnson

Aaron Swartz, a computer programmer who helped create RSS – the open blog syndication standard – and who helped launch Reddit, took his own life on Friday.

His funeral is today in Highland Park, Illinois.

Swartz was facing the prospect of a very long time in prison because of his alleged attempt to download the JSTOR academic archive database, ostensibly to make it available for free.

Swartz was very much a good guy. His prosecution is an example of what happens when the justice system loses its moral compass. He will be very much missed.

A memorial website has been set up.

More:

How to Stop Annoying Notifications on Your Phone

January 9th, 2013 by Eric E. Johnson

Does your phone give you a peppy little notification sound, but then not give you any indication of what it was notifying you about, even after you thought you turned all the notifications off in all your apps?

Would you like to set an alarm on your phone that vibrates silently, without forcing you to choose some sound to play?

If your answer to either of these questions is yes, then I have the simplest hack in the world for you: Silence.

Here you can download an mp3 file consisting of one second of silence:

[right click to download]

Put this little block of silence on your phone like you would a song.

To get rid of all default sound notifications across all apps, select the block of silence as your default notification sound. If you want a specific app to actually be able to notify you with a sound, then if the app allows you to select a different notification sound, then do so for that app.

To have a silent vibrating alarm, then, with your clock or alarm app, select this as the alarm sound, then optionally select vibrate.

You could also choose silence as the personalized ringtone for someone – if that suits your purposes.

The block of silence – or several of them together – is also a way to add spacers between songs in your iTunes playlist (or Banshee, Amarok, Clementine, or other music player software).

Why did I choose to put this up on the blog today? Well, you guessed it, my phone just made a little notification sound and it left no trace of why.

I like my little phone most of the time, but I’m tired of it acting like everything it does is the MOST IMPORTANT thing in my life.

DING! I JUST UPDATED YOUR AIRLINE APP!! Gee, thanks for letting me know that while I’m getting cut off in a construction zone during a rainstorm. And if your battery level gets too low for your comfort, why don’t you let me know that, too, and I’ll just pull over on the side of this bridge and try to flag down a trucker so I can take care of that for you.

After decades of advancement in electronics, we have somehow circled back to the equivalent of the blinking 12:00 from VCRs of the 1980s.

Maybe technology really is cyclical.

Intellectual Property and Social Media (Part 1)

January 6th, 2013 by Eric E. Johnson

Right now at the American Association of Law School’s annual conference, the Section on Intellectual Property is about to present a panel called “Intellectual Property and Social Media.” It’s another on-point topic for Blog Law Blog

The abstract/write-up is below. I’ll blog some realtime coverage on Twitter @tweetlawtweets with a follow-up posted here later.

Social media, such as Facebook, Twitter, Pinterest, and 23andMe, have changed the ways we communicate, create, innovate, and advertise. As the components of creation and brand- ing become more social, collaborative, instantaneous, and atomistic, various legal doctrines that have long governed copyright, patent, and trademark law may need to be rethought. Social media are being used to further genetic research, change how content is made, and draw users into the innovative process. This panel considers the challenges raised by social media to traditional intellectual property law, and explores the doctrinal implications of those challenges.

Politics and the Media, Old & New (Part 1)

January 5th, 2013 by Eric E. Johnson

Right now at the American Association of Law School’s annual conference, the Section on Internet and Computer Law and the Section on Mass Communication Law are about to have a panel on a great topic: “Politics and the Media, New and Old”.

The abstract/write-up is below. (It’s very on-point for Blog Law Blog.) I’ll blog some coverage live once we start up, both here and on Twitter @tweetlawtweets.

As the Supreme Court recognized in ACLU v. Reno, “the Internet is ‘a unique and wholly new medium of worldwide human communication’.” Among its unique features is that the Internet democratizes the opportunity to engage in political speech by offering ready access to any speaker with an Internet connection to large potential audiences at the local, state, national or global levels. This program assesses the impact the Internet has had to date on the relationship between the media and public officials or political candidates. Traditional newspapers are struggling to find a sustainable business model and appear to be losing some influence over the policy agenda or public officials’ conduct. Internet-only publications and other forms of political speech on the Internet have a complicated relationship with traditional media organizations, which, of course, also rely on the Internet to interact with their audiences. To what extent are these changes fostering or inhibiting democracy? Is law reform necessary in response to these changes?

Negligence’s X Factor

December 29th, 2012 by Eric E. Johnson

Cardozo Law Review de novo logoCardozo Law Review de novo just published a very short article of mine: Negligence’s X Factor, 2012 Cardozo L. Rev. de novo 318 [pdf download]. It’s just 4 pages.

Law students are familiar with the Hand Formula from Torts:

B < PL

Judge Richard Posner, working off an opinion by Judge Learned Hand, offered that this is a way of defining negligence: a precaution should be undertaken where the burden of doing so (B) is less than the probability of something going wrong (P) multiplied by the loss that would result (L).

My article reworks this inequality into an equation:

Bx = PL

Then I discuss what may follow from calculating the value of x.

I am very appreciative to the editors at Cardozo Law Review for their help this this.

The New Blawg 100

December 20th, 2012 by Eric E. Johnson

ABA Journal December 2012 coverThe ABA’s 2012 Blawg 100 is out, and, though Blog Law Blog made the list last year, this year it was not to be.

But plenty of great blogs are on the list. And through tomorrow, you can vote for the readers’ choice favorites by going to the page.

You really, actually, should vote. Why? Extremely low voter turnout is making this one election where you can really make a difference. Did your vote for president last month really matter? But your vote here might literally make the difference. Blogs that are really crushing it might have a couple hundred votes. Meanwhile, there are super-deserving blogs just barely in the double-digits. So vote!

Here’s Blog Law Blog’s suggestions for who deserves your ballot, and who’ve already gotten mine:

  • Technology & Marketing Law Blog by Eric Goldman and Venkat Balasubramani. This is the best blog out there closest to the subject matter covered on Blog Law Blog. And maybe the only honor better than Blog Law Blog’s making the Blawg 100 last year was that the description included a quote from Eric G. himself with a complement. So vote for T&M Law Blog.
  • The Volokh Conspiracy by Eugene Volokh and others. This is an old-line prestige blog, dating all the way back to January 4, 2004. It’s still one of the best.
  • SCOTUSblog. I agree with the fan quoted in the ABA Journal who called SCOTUSblog “extraordinary.” But I’ve got to strongly disagree as that admirer goes on to say SCOTUSblog “sets the gold standard to which all blawgs should aspire.” That’s insane. For most bloggers, aspiring to do what SCOTUSblog does would just make you go crazy. Not even aspiring, but just thinking about aspiring makes me exhausted.
  • 43(B)log by Rebecca Tushnet. Rebecca’s prolificness also exhausts me – maybe even more so than SCOTUSblog, since Rebecca’s blog is a solo effort. One of my favorite features is the play-by-play coverage of academic conferences. (And yes, her coverage goes well beyond Section 43(b) of the Lanham Act – banning importation trademark-infringing goods – but she does keep a germanely close eye on trademark law.
  • Wall Street Journal’s Law Blog. I’m getting the shout out to these folks despite their generic name. “Law Blog” is really uninspired and too close to “Blog Law Blog” for my taste. But this is still a great blog.

Also, vote for these Blawg 100 honorees from colleagues of mine at Texas Tech. They’re not on subjects close to Blog Law Blog’s usual fare, but they are great blogs nonetheless:

Blogger’s Fair-Use Argument Regarding Copyrighted Photo Questionable

November 20th, 2012 by John S. Merculief II

Screengrab of RK Associates blogA blogger’s use of a photo of the target of her posts has prompted a copyright infringement lawsuit from the person she writes about – and leads to some interesting questions about fair use of copyrighted material.

Irina Chevaldina maintains a blog styled “RK Associates” whose sole purpose seems to be criticize the business dealings of Miami-area businessman Ranaan Katz. The blog intro says:

This blog presents publicly available information about RK Centers (former RK Associates), including court records, media publications and opinions. Raanan Katz is the owner of RK Associates (Centers). Raanan Katz is a minor owner of Miami Heat.

The offending picture of Katz is a head shot apparently taken courtside (by someone other than Katz) at a basketball game in Israel. The picture appears in several posts, recently with the message “He ripped off special needs little Jewish girl” superimposed over his chest.

Here’s where it starts to get interesting: Katz apparently bought certain rights to the photo, in the interest of bringing a copyright infringement suit against Chevaldina, which he then did in the U.S. District Court for the Southern District of Florida. Her lawyers have filed a motion to dismiss the case. In it, Chevaldina’s lawyers correctly point out that Katz cannot make any claim of infringement occurring before he bought the rights on May 29, 2012, absent any evidence that he bought the right to sue for past infringement.

The other claims in the trial motion – at Defendant’s Second Motion to Dismiss, Katz v. Chevaldina, No. 1:12-CV-22211-JLK, 2012 WL 4504086 –  lay out the battleground for the brewing legal fight.

The lawyers lead with the argument that Chevaldina can successfully raise a fair-use defense under the Copyright Act:

When determining the fair use of copyrighted materials for purposes such as criticism, comment, news reporting, teaching, scholarship or research, courts look to the following factors:

1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2) the nature of the copyrighted work;

3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107. [other citations omitted]

No one factor in the fair use analysis is dispositive, and they must be weighed together.

Now, Chevaldina’s lawyers seem to say that because Chevaldina wants to criticize Katz the businessman, it is OK for her to use a copyrighted picture of Katz the basketball fan to do so. Criticism in the Copyright Act sense more typically references criticism of the copyrighted work itself (think of book or movie reviews, analyses of museum exhibits, and the like).

So it will be interesting to see how that part of the case develops.

Chevaldina’s lawyers also correctly point out that courts value news uses of copyrighted works in the fair-use analysis:

In assessing the components of the four factor test, the Court is mindful that, while § 107 does not accord the statutory factors any particular weight in relation to one another, the characterization of defendant’s use as news related carries great weight in the analysis of fair use.

They further assert that Chevaldina’s use is a news use. Their brief lacks any exposition on this point, though.

Chevaldina’s lawyers also contend that her use of the photo is transformative, another key element in a Copyright Act fair-use defense:

The transformative nature of copyrighted material’s use is determined by whether the use adds something new to the copyrighted work, altering the first with a new expression, meaning or message; the more transformative the work, the less will be the significance of other factors potentially weighing against fair use.

Of course, the use in question does not have to transform the photo itself to be a transformative use.

So, again, it will be interesting to see how this all plays out as the case moves forward.

Taking Judicial Notice of Blogs

November 9th, 2012 by Eric E. Johnson

Daylight exterior

This is the Stanley Mosk Courthouse in Los Angeles. Under the Ragland case, my picture of it here does not permit it to take judicial notice of itself. (Photo: EEJ)

A new California case concerns whether a court can take judicial notice of a blog.

When a court takes “judicial notice” of something, it gives a party a pass on proving something with testimony. So, for instance, you can get a court to take judicial notice of the fact that November 6, 2012 was a Tuesday. You won’t have to produce a witness to testify as to that.

So, how about taking judicial notice of blogs?

This won’t come as a shocker. A court can take judicial notice of the existence of a blog, but not the truth of factual assertions made on the blog. (Can you imagine if it were otherwise!?)

Here’s what the court said in Ragland v. U.S. Bank National Association, 209 Cal.App.4th 182 (Cal. App. 2012):

As evidentiary support for the request for judicial notice, Ragland offers 12 exhibits, [including] printed pages from various Web sites and blogs (exhibits 2–6 and 8–12)[.] Ragland’s request for judicial notice requires us … to take judicial notice of, and accept as true, the contents of those exhibits. While we may take judicial notice of the existence of … Web sites, and blogs, we may not accept their contents as true.

Id. at 193.

Presumably, the court can also take judicial notice not only of the existence of the blog, but also the fact that certain statements exist on the blog. That makes sense, since the judge and all parties can independently access a blog just by using the internet.

But blogs can and do change. There’s clearly a separate question as to what is required as proof that a blog said a certain thing on a certain date. That presumably requires testimony in the form of an affidavit or declaration – though that’s not hard to do.

Amicus Filed for Quashing Subpoena of Blogger Related to Duke Lacrosse Scandal

November 8th, 2012 by Eric E. Johnson

Duke University has issued a subpoena seeking a blogger’s notes and correspondence, and the Reporters Committee for the Freedom of the Press has filed an amicus brief urging the court to quash the subpoena.

The underlying case is McFadyen & Carrington v. Duke University, which stems from the Duke lacrosse scandal. The subpoena is aimed at blogger, author, and history professor KC Johnson (formally, Robert David Johnson).

Johnson’s blog is Durham-in-Wonderland.

The brief was filed in federal court in Maine. With RFCP filing the brief are the Maine Press Association, MaineToday Media Inc., Bangor Publishing Co., and the Maine Association of Broadcasters.

2012 Election Coverage from a Blog Law Perspective

November 7th, 2012 by Eric E. Johnson

vote button red white and blue over American flagAs promised, here’s your blog-law-focused election coverage:

Barack Obama, a critic of SOPA, beat Mitt Romney, a foe of net neutrality, for President of the United States.

The main Congressional race of interest from a blog-law perspective is still to call at this hour. But Republican Congresswoman Mary Bono Mack, sponsor of the 1998 Copyright Term Extension Act, is trailing Democratic challenger Raul Ruiz by 48.6% to 51.4% with 66.5% reporting. Mack, widow of entertainer Sonny Bono, for whom the copyright term extension law was named, was also an early proponent of SOPA, those she later said the bill raised “legitimate concerns.”

Other key players in internet law won re-election easily.

Democratic Representative Zoe Lofgren from Silicon Valley, who is one of the strongest members of Congress when it comes to resisting legislation that threatens blogs and the internet, was re-elected with 72.4% of votes cast.

Republican Representative Darrell Issa, a very vocal critic of SOPA, handily won re-election in the California 49th.

Republican Representative Lamar S. Smith, the House Judiciary Committee Chair and chief advocate of SOPA, cruised to re-election in the Texas 21st by a margin of 25 points.

Republican Senator Orrin Hatch, sponsor of the 1998 Copyright Term Extension Act, was re-elected from Utah.

Illegal to Post Images of Your Ballot?

November 6th, 2012 by Eric E. Johnson

We’re seeing lots of chatter about people posting photos of their ballots taken with phones (such as on the ABC/Yahoo Live Stream and NBC News Blog.)

The Citizen Media Law Project at Harvard Law School has a wonderful chart, backed up with citations to statutes, of state laws concerning taking photos in polling places. And guess what – yikes, it’s illegal plenty of places.

It sure seems like these laws are behind the times. And there’s reason to think that taking video and photos in the ballot booth is quite the opposite of socially pernicious. For instance, there’s this video (albeit unverified) of a person trying to vote for Obama with the machine registering a vote for Romney:

Vote Obama-Biden for Pro-Blogger Internet Policy

November 5th, 2012 by Eric E. Johnson

Many of you out there are single-issue votes when it comes to the office of president. And, of course, that single issue is blog law. Or not.

But if you issue is blog law, your candidate is Barack Obama.

While blog law did not take center-stage (or even side-stage or backstage or offstage) at the debates, we do know something of candidates’ positions on blog law. Happily, Scientific American asked the candidates for president 14 questions related to science. In truth, I’m not sure internet policy is a “science” question, but, as it so happens, SciAm included the following: “What role, if any, should the federal government play in managing the Internet to ensure its robust social, scientific, and economic role?”

Interestingly enough, the candidates’ answers are importantly different. And Governor Mitt Romney takes a position that is squarely against the interests of bloggers. So, if you are voting on the basis of blog law, vote Obama-Biden.

Let’s take a look at what they said.

President Barack Obama:

A free and open Internet is essential component of American society and of the modern economy. I support legislation to protect intellectual property online, but any effort to combat online piracy must not reduce freedom of expression, increase cybersecurity risk, or undermine the dynamic, innovative global Internet. I also believe it is essential that we take steps to strengthen our cybersecurity and ensure that we are guarding against threats to our vital information systems and critical infrastructure, all while preserving Americans’ privacy, data confidentiality, and civil liberties and recognizing the civilian nature of cyberspace.

That’s a pretty boring response that seems designed to offend no one. There is one nugget of a controversial-stance taking inside of it. When the president says “any effort to combat online piracy must not reduce freedom of expression, increase cybersecurity risk, or undermine the dynamic, innovative global Internet,” he seems to be talking about the hypercopyright bill SOPA, which I’ve blogged about several times. That’s good, because anti-SOPA is pro-blogger.

Governor Mitt Romney:

It is not the role of any government to “manage” the Internet. The Internet has flourished precisely because government has so far refrained from regulating this dynamic and essential cornerstone of our economy. I would rely primarily on innovation and market forces, not bureaucrats, to shape the Internet and maximize its economic, social and scientific value.

Thanks to the non-governmental multi-stakeholder model, the Internet is — and always has been — open to all ideas and lawful commerce as well as bountiful private investment. Unfortunately, President Obama has chosen to impose government as a central gatekeeper in the broadband economy. His policies interfere with the basic operation of the Internet, create uncertainty, and undermine investors and job creators.

Specifically, the FCC’s “Net Neutrality” regulation represents an Obama campaign promise fulfilled on behalf of certain special interests, but ultimately a “solution” in search of a problem. The government has now interjected itself in how networks will be constructed and managed, picked winners and losers in the marketplace, and determined how consumers will receive access to tomorrow’s new applications and services. The Obama Administration’s overreaching has replaced innovators and investors with Washington bureaucrats.

In addition to these domestic intrusions, there are also calls for increased international regulation of the Internet through the United Nations. I will oppose any effort to subject the Internet to an unaccountable, innovation-stifling international regulatory regime. Instead, I will clear away barriers to private investment and innovation and curtail needless regulation of the digital economy.

Romney’s pro-big-telecomm stance against net neutrality should be very concerning for bloggers. I’ve explained why net neutrality is important for bloggers. (In fact, I’ve written about it a lot.)

On that basis, Blog Law Blog officially endorses Barack Obama for president of the United States. (Just to be completely clear, that’s coming from the Blog Law Blog Editorial Board, which is me, and does not necessarily reflect contributor viewpoint.)

So go and vote. And beginning tomorrow, I will provide you with some of America’s least comprehensive election coverage. (But, hey, it is likely be America’s only election coverage solely devoted to blog law issues!)

Court Ruling Seems to Overlook the Online Fact v. Opinion Question

November 1st, 2012 by John S. Merculief II

From contributing blogger John S. Merculief II –

Recently I posted about Chaker v. Mateo, No. D058753, 2012 WL4711885 (Cal. Ct. App. Oct. 4, 2012). It dealt a strong victory for free speech rights, but in my opinion, the California appellate court turned something of a blind eye to the issue of the relative legitimacy of internet postings.

The court reached its decision largely on the basis that the online statements at issue were incapable of being defamatory because they were merely nonactionable opinions. In doing so, however, I think the courts are overlooking the reality that many users of such internet forums actually treat postings they read as fact.

The case principally involved the online postings of Wendy Mateo regarding her daughter Nicole’s ex-husband, Darren Chaker. Here are the key facts:

  1. Nicole Mateo and Chaker had a contentious custody battle over their child.
  2. Wendy Mateo posted degrading comments about Chaker in online forums.
  3. Chaker sued for defamation.
  4. Wendy Mateo filed an anti-SLAPP suit and won.
  5. The appellate court affirmed that she was merely exercising her First Amendment free speech rights in the matter.

The Chaker court points out that “the context in which the statements are made” is an extremely important aspect of the “totality of the circumstances” examination of whether a statement is actionable. “This contextual analysis demands that the courts look at the nature and full content of the audience to whom the publication was directed.”

The two online sites where Wendy Mateo posted her comments were:

  • Ripoff Report, which describes itself as “a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals.”
  • A social networking site into which Chaker had inserted himself by posting a professional profile.

In arriving at its findings, the court acknowledges and openly joins a trend I see as sad and disturbing: “In determining statements are nonactionable opinions, a number of recent cases have relied heavily on the fact that statements were made in Internet forums.”

By giving credence to the idea that internet forums generally yield nonactionable opinions, I think the courts are overlooking the reality that many users of such forums actually treat postings they read as fact.

It is true that, around the watercooler, someone making a claim he knows to be unsupported by fact, will add, “I saw it on the internet, so it must be true,” as a sarcastic verbal signal that he knows his point is a weak one – even if he is not willing to yield it.

But the thing is, for many people, “I saw it on the internet, so it must be true” is not a sarcastic expression, but rather words to live by.

Does that make such a user legally “unreasonable”? That appears to be the judgment in recent cases. But if courts truly are to look at the “nature … of the audience to whom the publication was directed,” perhaps a better way to articulate the standard is “reasonable when viewed from the perspective of a typical user of an internet forum.”

To be sure, the Chaker court does not actually use the term “reasonable person” nor even the word “reasonable” in its roughly 10-page opinion. But I believe what it’s saying, in joining the internet-forum-as-opinion trend, is that a reasonable person would not go to those sites expecting facts.

And I don’t know whether that makes sense, given actual usage behaviors regarding visitors to internet forums.

Internet forums admittedly are often places for “outrageous claims” where some (the Chaker court says “most”) “visitors are completely aware of the unreliable nature of these posts.” And that seems to tilt the needle toward unactionable opinion.

But if a goodly number of those visitors treats those same claims as hard, verified (or at least verifiable) fact, doesn’t that tilt the needle into the realm of actionable statement of fact?

What Will The Big Mouse Do About Star Wars Fanfic?

October 31st, 2012 by Eric E. Johnson

Now that George Lucas has announced he’s selling Lucasfilm, including Star Wars, to Disney, the big question in my mind is what will happen to Star Wars fan fiction?

Lucas has long been welcoming of fanfic adaptations of his Star Wars properties. The House of the Mouse, on the other hand, has long been the leader in pursuing ever larger copyright entitlements, dismissing issues of cultural and expressive freedom.

So, will the copyright stormtroopers be coming after camcorder-weilding Star Wars geeks?

Joe Mullin tackles the issue on Ars Technica: Disney owns Lucasfilm: will it have room for Star Wars fan movies?

Mullin’s post includes an embedded YouTube video with an awesome Cops spoof featuring stormtroopers. It’s so awesome, I’ll just embed it here, too.

You can’t tell me the world’s not a little bit better when Hollywood outsiders can create and distribute gems like this:

Former Mayor Must Pay $21,275 in Bloggers’ Legal Bills

October 29th, 2012 by Eric E. Johnson

Aurora town logo(Image: Aurora, Ontario website, used without permission.)

A court in Ontario has ordered a former mayor to pay $21,275 in legal bills accumulated by bloggers defending themselves against a local politician’s attempt to silence online criticism.

In 2010, Phyllis Morris, then mayor of Aurora, Ontario, waged a litigation campaign against online critics while she was running for re-election. Notably, she got the town council to foot the bill for the lawsuit with taxpayer money. Months later, well after she lost the election, she voluntarily dismissed her lawsuit.

But defendants William Hogg, blog proprietor-moderator, and Richard Johnson, a blog contributor, kept the case file open to press the court for a money award to pay their defense bills.

Their push paid off.

According to the Toronto Star, in making the award, the Ontario Superior Court characterized Morris’ lawsuit as an attempt to hit her critics “quickly and hard,” in order to quiet her opponents “sooner rather than later in the weeks leading up to the October 2010 elections.”

Blogger Christopher Watts has more about the court’s award, plus a link to the court’s opinion, on his blog, Temporary Sanity.

Prior coverage on Blog Law Blog:

Coverage of the fee award:

Court treats degrading online postings as protected free-speech opinions

October 19th, 2012 by John S. Merculief II

From contributing blogger John S. Merculief II –

A California appellate court has affirmed a lower court’s ruling granting a woman’s anti-SLAPP motion against her daughter’s ex-husband regarding online postings the woman made about him.

The genesis of Darren Chaker’s lawsuit against Nicole Mateo and her mother, Wendy, was apparently a contentious custody battle in Texas courts regarding the former couple’s child. This battle appears to have helped prompt Wendy Mateo’s online comments, which in turn led to Chaker’s defamation suit.

In granting Wendy Mateo’s anti-SLAPP (“Strategic Lawsuit Against Public Participation”) motion to strike the defamation suit, the appellate court affirmed that she was merely exercising her First Amendment right to free speech in the matter.

Principally at issue in the case of Chaker v. Mateo, No. D058753, 2012 WL4711885 (Cal. Ct. App. Oct. 4, 2012) were the online postings of Wendy Mateo regarding ex-son-in-law Chaker’s business practices and moral character. Examples:
  • “This guy is … a deadbeat dad.”
  • “He may be taking steroids so who knows what could happen.”
  • “He uses people, is into illegal activities, etc.”
  • Varied accusations of fraud, deceit, picking up street walkers, and homeless drug addicts
The court found that the postings, while not on sites that were truly interactive, were at least on the internet, which functions as a worldwide bulletin board (read: public forum):
  • Something called “Ripoff Report,” which describes itself as “a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals.”
  • A social networking site into which Chaker had inserted himself by posting a professional profile (the opinion styles him as working in “forensics”).
As such, the court found that the comments Wendy Mateo posted were of public interest, regarding each forum.
But the court went on to conclude that the statements were nonactionable opinions (or, in other words, free speech) rather than actionable statements of fact by considering the statements’ contexts – internet forums – as likely places for opinions rather than facts, and not so much their content: “In determining statements are nonactionable opinions, a number of recent cases have relied heavily on the fact that statements were made in Internet forums.”
In fact, in analogizing to a prior case it handled in which a defendant had posted nine claims against a bank and its CEO in an expletive-laced rant, the court said:
In finding the defendant’s statements were nonactionable opinions, the [prior] court relied in part on the fact they were posted on the Internet Craigslist “Rants and Raves” Web site and lacked “ ‘the formality and polish typically found in documents in which a reader would expect to find facts.’” Summit Bank v. Rogers, 206 Cal.App.4th 669, 696–701, 142 Cal.Rptr.3d 40 (2012).
Here’s a review of California’s anti-SLAPP statute (Cal Civ. Proc. Code § 425.16). According to the court’s opinion:
The statute, as subsequently amended, provides in part:
  • (b)(1) A cause 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 shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. …
  • “ ‘(e) As used in this section, “act in furtherance of a person’s right of petition or free speech … in connection with a public issue” includes: … (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. …
Note that the statute sets up a two-part test. In plain terms, first, the defendant must show that the statement that the plaintiff complains of qualifies as free speech in connection with a public issue.
If the defendant succeeds with Step One, the case is not necessarily resolved: The plaintiff must then show that he at least has a reasonable chance of prevailing if the case goes to trial, in order for the case to proceed from there.
Here, the court found that Wendy Mateo’s online postings fit the criteria for California’s anti-SLAPP statute.
Further, the court found that the postings were in online forums where people do not expect to read factual information.
As such, the court foreclosed on Chaker’s defamation suit by concluding that Wendy Mateo’s online postings are nonactionable opinions, i.e. free speech.
Left unanswered, though, is the question of what to do about the reality that many people treat online forums as sources of fact. More on this in a follow-up post, coming soon.

Trademark Infringement in the Presidential Election?

October 17th, 2012 by Eric E. Johnson

Romney Believe in America - Get the DetailsI don’t want to spoil anything, so click here if you want to find out about the details of the Romney tax plan, including how he will cut $5 trillion in spending without increasing the deficit.

Cute, huh? (At least if you are a Democrat.) Now that you’ve seen that, let’s think about the legal implications. The website, romneytaxplan.com, is a product of the Democratic National Committee. Yet the website conspicuously carries the Romney campaign logo and uses the Romney campaign’s slogan and adopted typestyle. So, is there a trademark problem?

Yes and no.

This is a good example of why it is so important in evaluating intellectual property problems to not only apply the blackletter law, but to also ask the practical question: Would this plaintiff sue?

Trademark law should generously protect parody uses of trademarks. Yet it doesn’t always. Consider this parody ad that appeared in a humor magazine called Snickers:

One taste and you'll drink it oily. Michelob Oily.

The case was Anheuser-Busch, Inc. v. Balducci Publications, 28 F. 3d 769 (8th Cir. 1994). Anheuser-Busch, brewers of Michelob, sued for trademark infringement and trademark dilution. The federal district court dismssed the case, but the Eighth Circuit Court of Appeals reversed, holding that the brewery could continue on with its action. I seriously disagree with that case. And there several cases upholding dismissals in the realm of trademark parody. But the Anheuser-Busch case is still, regrettably, good law.

There’s also the case the U.S. Chamber of Commerce pursued against a prankster group, The Yes Men, who produced a faked Chamber of Commerce press release and website to go along with a fake press conference they held about support for climate change legislation.

The fact is, the Romney campaign can sue the DNC and the case would have some legs.

But will they?

No way.

There’s no way the Romney campaign is going to draw attention to the website and look humorless and loser-y by filing suit. Or even threatening. So it’s a good call by the DNC to ignore precedent that points to a potential for legal liability. Calculated risk-taking is often the right prescription when advising clients about IP liability concerns.

U.S. v. Michael Upholds Indictment for Facebook Threat to Police

October 17th, 2012 by Eric E. Johnson

Venkat Balasubramani at Technology & Marketing Law Blog has a good analysis of U.S. v. Michael, (S.D. Ind., Oct. 9, 2012), a case which rejected a Facebooker’s attempt to dismiss an indictment for threatening posts directed at the DEA. (That’s “Drug Enforcement Agency” for our overseas readers). Read Balasubramani’s post for background. Here I want to add my opinion.

I agree with Balasubramani that there has been “a disturbing number of cases that involve criminal liability for these types of statements posted online.”

But I’m less troubled by the indictment in this particular case.

Here’s what Michael posted to Facebook, broken down:

These guys will get whats coming to them … My master assures me that the DEA will be exterminated and humiliated before the end is over …

No true threat there. It sounds like Michael is “threatening” the DEA with the a return of Christ. That’s not a real threat, and it should be protected speech. Next:

WE R COMING FOR YOUR PIG ASS. The only thing the DEA knows how to do is lie and deceive … Its time we answered there crimes with bloodshed and torture.

We are getting closer to a true threat here. But nonetheless, I think that this is sufficiently general that it should be protected speech. For most crazy anti-law-enforcement speech, including the above statements, I think the correct response – and the one the law ought to sanction – is to get a warrant and monitor the person. But then there’s this:

I’ll kill whoever I deem to be in the way of harmony to the human reace … Policeman all deserve to be tortured to death and videos made n sent to their families … BE WARNED IF U PULL LE OVER!! IM LIKE JASON VOORHEES WITH A BLOODLUST FOR PIG BLOOD.

This is where I think we have something that the government ought to be able to prosecute. Michael has indicated a desire to kill a law enforcement officer at a traffic stop. That is something that could happen instantly, without further warning. And while the feds might be monitoring Michael and thus would not be caught flatfooted, a local police officer might not be. Using threat laws prophylactically to take a person off the street under such circumstances seems to me a reasonable means to avoid a tragedy. Moreover, the speech value of this particular language is low.

Threats directed at the government ought to be accorded more tolerance than threats directed at a private person. For a private person, the threat itself can constitute a significant psychological harm. When it comes to threatening speech directed at the government, I am more comfortable if threat laws are used in a preventative capacity.

Admittedly, threat laws are not closely calibrated to a preventative role. Once the threat is dissipated, the conviction will remain. Threat laws punish speech. And that being the case, I continue to find them concerning. But their application in this circumstance, at least, seems appropriate to me.

By the way, I had to look up Jason Voorhees. He’s the hockey-mask wearing Jason from the Friday the 13th movies. I guess I’m out of it – at least when it comes to 1980s-spawned horror franchises – but I, personally, was thrown off by the use of his last name.

Professor Ludington on Loosening Jurisdictional Hurdles Against Bloggers

October 13th, 2012 by Eric E. Johnson
Headshot of Sarah H Ludington

Professor Ludington (Photo: Campbell U.)

Professor Sarah H. Ludington of Campbell University has just published Aiming at the Wrong Target: The ‘Audience Targeting’ Test for Personal Jurisdiction in Internet Defamation Cases in the Ohio State Law Journal (73 Ohio State L.J. 541). She takes issue with a blogger-friendly Fourth Circuit case that said someone publishing on the internet can’t be sued for defamation outside of their state unless they specifically targeted an audience in that state. Professor Ludington would prefer for bloggers to be able to be sued away from their home so long as they have “minimum contacts” with jurisdiction in which the lawsuit is being brought.

Here’s the abstract:

In Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002), the Fourth Circuit crafted a jurisdictional test for Internet defamation that requires the plaintiff to show that the defendant specifically targeted an audience in the forum state for the state to exercise jurisdiction. This test relies on the presumption that the Internet — which is accessible everywhere — is targeted nowhere; it strongly protects foreign libel defendants who have published on the Internet from being sued outside of their home states. Other courts, including the North Carolina Court of Appeals, have since adopted or applied the test. The jurisdictional safe harbor (ironically) provided by the veryn ubiquity of the Internet is no doubt welcomed by media defendants and frequent Internet publishers (e.g., bloggers) whose use of the Internet exposes them to potentially nationwide jurisdiction for defamation. But it may go too far in protecting libel defendants from facing the consequences of their false and injurious statements. For every libel defendant insulated from jurisdiction in a remote location, there is also a libel plaintiff who has potentially been denied an effective remedy in a convenient location. This article argues that the jurisdictional test created in Young is flawed and particularly should not be applied to libel defendants. It concludes with a simple suggestion: that the appropriate test for personal jurisdiction over libel defendants in cases of Internet defamation is the standard minimum contacts analysis.

Ha’p Media Law Prof Blog.

Pippen’s Self-Affirmation Lawsuit is Over

October 10th, 2012 by Eric E. Johnson

(Photo from Scottie Pippen's Facebook page. Used without permission.)

A federal court in Illinois has dismissed a defamation case brought by Scottie Pippen against various websites for saying he was broke. The reason Pippen lost is because he failed to allege the actual malice hurdle required by the First Amendment for defamation cases brought by public figures.

This looks less like a win for the defendants and more like a withdrawal by Pippen. I’m not sure why Pippen couldn’t have kept going with this lawsuit – at least for a little while – by amending his complaint.

My guess is that Pippen probably had a lousy case he wasn’t going to win. So that begs the question, why did he file in the first place? Well, I think this is probably a typical celebrity-blowing-off-steam lawsuit. Throwing the lawyers around makes the celeb feel good and provides a way to try to blunt bad press with the news that the celeb is going to court. But, in this pattern, the case doesn’t go anywhere. The celeb  just gives up after a little while. It’s kind of an obnoxious use of the judicial system.

Ready to roll your eyes? Here’s the first paragraph of Pippen’s complaint:

It is a most foul libel indeed to be falsely accused of being bankrupt.

Oh, for crying out loud. Then look at the next paragraph:

That is what happened to Scottie, and the malicious libel was disseminated across the nation by the media.

Ooooh. I love the arm-over-shoulder cooing of his first name.

Then comes the third paragraph. It’s over 900 words and reads like a Wikipedia entry about Pippen that was written by his publicist. It starts by saying where he was born and then goes through his whole career, bestowing one accolade on the Pippen after another.

Then, at the end of the complaint, there is a prayer for relief asking for $1 million from each defendant.

Sometimes a complaint isn’t written for the court so much as it’s written for the media – what is sometimes called a “press release complaint.” Those are bad enough. But Pippen’s complaint appears to be the kind that is actually written for the client. Ugh. It’s lawyer-mediated self-affirmation. And it’s a colossal waste of time. Courts ought to feel more comfortable sanctioning this kind of thing.

At any rate, Pippen proved one thing in countering rumors of his insolvency: He at least has enough money that he can waste bags of it on a pointless lawsuit.

From a legal angle, the lawsuit is well-summed-up in the court’s minute order:

MINUTE entry before Honorable Sharon Johnson Coleman: In its order of 8/02/2012, the court dismissed plaintiff’s complaint, but allowed him to seek leave to file a complaint that made allegations that were legally sufficient under constitutional and defamation principles. The complaint that plaintiff now seeks leave to file alleges with more detail the recklessness of defendants’ publications regarding his financial status. However, as the court has observed, the malice required to establish liability for defamation of a public figure such as famed and well-respected athlete Scottie Pippen is greater than the mere failure to investigate, no matter how allegedly egregious that failure may be. The court concludes that plaintiff’s proposed amended complaint cannot be considered a sufficient allegation of defamation against a public figure. Plaintiff’s motion for leave to file that amended complaint is accordingly denied, and this action is dismissed with prejudice. Plaintiff’s motion for partial summary judgment is denied. Civil case terminated.

Some case documents for your reference:

  • Minute Order of September 26, 2012 dismissing lawsuit [pdf]
  • ORDER of August 2, 2012 granting motion to dismiss [pdf]
  • ARIZONA BOARD OF REGENTS’ INDEPENDENT MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT[pdf]>
  • COMPLAINT [pdf]

ZAGG v. Catanach – Extended Excerpt

October 5th, 2012 by Eric E. Johnson

ZAGG logoFollowing up on this morning’s post, here is an extended excerpt from ZAGG, Inc. v. Catanach (E.D. Pa. Sept. 27, 2012), denying the motion to dismiss of bloggers / b-school professors Catanach and Ketz of the Grumpy Old Accountants blog. The full opinion is available from the court as a pdf.

ZAGG, Inc. (“Zagg”) has brought this action for defamation and false light under Utah state law1 against Anthony H. Catanach, Jr. (“Catanach”) and J. Edward Ketz (“Ketz”), two business school professors at universities in Pennsylvania. Zagg alleges that Catanach and Ketz published false and defamatory statements about it on a blog. Before the court is the motion of Catanach and Ketz to dismiss the complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. …

Catanach and Ketz authored and caused to be published an article entitled “Don’t Gag on Zagg” on the Grumpy Old Accountants blog. In the article, they made a number of statements about Zagg’s accounting practices. Zagg alleges in its complaint that the following statements from the article are defamatory:

a. “The numbers are giving off so much smoke that we think management may have blinded both the auditors and investors.” b. “At worst, management may be ‘cooking the books.’”

c. “ZAGG’s balance sheet is littered with items prompting valuation and disclosure concerns.”

d. “The company includes accounts receivables from credit card processors in its reported cash balances. You know how we feel about this right? … Instead of the Company reporting positive cash flow for 2011, it really ‘burned’ cash.”

e. “[I]t is ironic and worrying that the ifrogz business segment is losing money right out of the gate.”

f. “Still not convinced that ZAGG management is massaging the numbers? Maybe the following will make the hairs on the back of your neck stand up.”

g. “This is a financial reporting debacle in the making.”

h. “It makes us grumpy when a firm overstates its cash by adding in some receivables, as note 1 explains. And why did ZAGG do this? In an attempt to fool investors about its cash flows!”

To state a claim for defamation under Utah law, plaintiff “must show that defendants published the statements concerning him, that the statements were false, defamatory, and not subject to any privilege, that the statements were published with the requisite degree of fault, and that their publication resulted in damage.” West v. Thomson Newspapers, 872 P.2d 999, 1007-08 (Utah 1994) …

The statements in issue by Catanach and Ketz on the Grumpy Old Accountants blog were not merely nettlesome or embarrassing but rather were capable of damaging Zagg’s reputation. They directly impeached Zagg’s honesty with statements such as “[t]he numbers are giving off so much smoke that we think management may have blinded both the auditors and investors” and others such as “Zagg’s balance sheet is littered with items prompting valuation and disclosure concerns,” and “[Zagg is] attempt[ing] to fool investors about its cash flows.” These statements imply dishonesty and even criminality and thus are capable of defamatory meaning.

Even when statements may otherwise be capable of defamatory meaning, the Utah Constitution protects expressions of opinion …

The defendants contend that their statements in the Grumpy Old Accountants blog were all expressions of opinion, as noted in a disclaimer at the end of the article stating, “[t]his essay reflects the opinion of the authors and not necessarily the opinions of the Pennsylvania State University, the American College, or Villanova University.” They also point out that a number of statements are preceded with the words, “we think.” These exculpatory words in and of themselves do not save the statements in issue from being defamatory. See Milkovich v. Lorain Journal Co., 497 US 1, 18 (1990). It would undermine the law of defamation if speakers or authors could simply employ a talismanic word formula to absolve themselves of slander or libel. See Id. at 18-19.

Although opinions are protected from defamation liability under the Utah Constitution, any facts implied by the opinion or underlying the opinion are not protected. West, 872 P.2d at 1015. The Supreme Court of Utah … relied specifically on “four factors as useful in distinguishing fact from opinion: (i) the common usage or meaning of the words used; (ii) whether the statement is capable of being objectively verified as true or false; (iii) the full context of the statement –- for example, the entire article or column –- in which the defamatory statement is made; and (iv) the broader setting in which the statement appears.” Id. (citing Ollman v. Evans, 750 F.2d 970, 979 (D.C. Cir. 1984) (en banc)).

We will address each factor in turn. The Ollman decision cited by West explained that the first factor, “common usage or meaning of the words used,” was relevant for “determining whether the statement has a precise core of meaning for which a consensus of understanding exists or, conversely, whether the statement is indefinite and ambiguous.” Ollman, 750 F.2d at 979 (citations omitted). The court reasoned that readers of the statements would be “considerably less likely to infer facts from an indefinite or ambiguous statement than one with a commonly understood meaning.” Id. Here, the statements by Catanach and Ketz have commonly understood meanings. For example, when a reader sees “[a]t worst, management may be ‘cooking the books’” or Zagg’s “attempt to fool investors about its cash flows,” he or she understands that the authors are implying false numbers in Zagg’s ledger amounting to at least potential criminality.

As for the second factor, the statements by Catanach and Ketz about Zagg are capable of being verified. Accountants are able to look at Zagg’s financial records and public filings to determine whether there were manipulations and irregularities giving rise to “valuation and disclosure concerns,” as accused.

Turning to the third factor, reading the full context of the blog posting would not lead a reader to believe that the statements were opinions and not steeped in fact. Even though the authors did include at the end of the article that the essay reflected their opinions and at times use the phrase “we think,” various statements in the article explained to the reader that the authors had read Zagg’s public filings and financial statements and were basing their statements on these factual disclosures. For example, the article states, “[o]ur review of the Company’s operating environment and the 2011 10-K leads us to conclude that at the very least, the Company’s reported amounts are suspect.” This statement is based on data from the 10-K. In sum, the full context of the article would not lead a reader to conclude it was mere opinion.

The fourth factor requires the court to consider “the broader setting in which the statement appears.” The Supreme Court of Utah explained that statements in newspaper editorials tend to be more exaggerated than “hard news,” and as a result readers are “less likely to form personal animus toward an individual based on statements made in an editorial.” Id. at 1009. This led the West court to determine that the statements at issue in that case, which were published in a newspaper editorial about a mayor of a town in Utah, were not capable of defamatory meaning. Similarly, here readers may be less likely to sell their stock in a company when they read about potential disclosure concerns on the Grumpy Old Accountants blog than, for example, on the front page of The Wall Street Journal. On the other hand, the defendants are professors at business schools, with apparently no political axe to grind. Readers are likely to take their statements about corporate finance seriously. …

In West the plaintiff was a public official, and the court explained that this factor was relevant to its finding that the statements were opinions not capable of defamatory meaning. Id. at 1009-10. The context of any statement is critical. Readers expect that public officials will be criticized in newspaper editorials and that these criticisms are opinions. Id. That is just the nature of politics. Here, in contrast, two business school professors are making statements about the dishonesty of a corporation. Public companies are not routinely accused of fraud by business professors, and any such accusations would not be presumed to be opinions. The statements of Catanach and Ketz about Zagg on their blog are therefore not protected opinions under Utah law because the meaning of the statements is clear, they are capable of being verified, and the context of the statements and the broader settings in which they appear do not signal to the reader that the statements are opinions and not facts.

Accordingly, we will deny the motion of the defendants to dismiss for failure to state a claim because the statements of these business school professors about Zagg on their blog are capable of defamatory meaning and are not protected as opinions. We, of course, make no determination of whether the statements are true or false. Whether defamation actually occurred will be for the fact-finder to decide.