Internet Speech and the Citizen Participation Act (H.R. 4364)
Freedom of speech depends not only on the mere absence of state censorship, but also on an infrastructure of free expression - Jack M. Balkan, The Future of Free Expression in a Digital Age
Man is least himself when he talks in his own person. Give him a mask, and he will tell you the truth. - Oscar Wilde
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Citizen journalists are an increasingly important source of news and information about issues of public interest. Perhaps unsurprisingly, SLAPPs against bloggers are so common that they have a special name – CyberSLAPPS.
In addition to the common SLAPP claim of defamation, CyberSLAPPs often masquerade as claims of copyright or trademark infringement. Although not traditional lawsuits, subpoenas seeking the indentify of anonymous bloggers are also considered CyberSLAPPs, when the subpoenas are in connection with a meritless underlying claim and are designed to harass and intimidate.
CyberSLAPPs
American Academy of Anti-Aging Medicine v. Wikimedia Foundation, Inc., No. 0911197 (Filed Aug. 9, 2009)
In August 2009, The American Academy of Anti-Aging Medicine (A4M) and its co-founders Robert M. Goldman and Ronald M. Klatz sued Wikimedia Foundation and ten anonymous posters for defamation in New York state court over comments appearing on A4M's Wikipedia page. Goldman and KLatz allege that anonymous posters published statements disparaging their scientific qualifications and medical credentials and implying that they were implicated in illegal trafficking of human growth hormones and anabolic steroids. Wikimedia is included "solely as a nominal Defendant," and A4M seeks to identify the anonymous posters through discovery. The Citizen Media Law Project provides the complaint here. A4M is quickly becoming a SLAPP All Star, having already resorted to the courts to silence criticism of its claims and practices.
Butler University v. John Doe, Case. No. 49D020901PL001164 (Filed Jan. 8, 2009)
• In a paradigmatic CyberSLAPP, Butler University in Indiana brought suit against an anonymous poster who had made comments about the school’s dean. The school filed a libel suit, which appeared to be meritless, in January of 2009. The Court ordered the student's name revealed in June, and Butler then attempted to convince the student to agree to some sort of internal sanction. The student refused -- the school said in a statement that he "maintained that no sanctions were warranted" -- prompting Butler to file a disciplinary proceeding against him in October 2009. Immediately thereafter, the university sought to withdraw its libel complaint. See our blog entry about the case.
Brodie v. Independent Newspapers, Inc., No. 17C06011665. (CMLP)
• In Maryland, the state’s Court of Appeals quashed a subpoena sought by a man seeking the identity of three posters who among other things disparaged his Dunkin’ Donuts shop as one “of the most dirty and unsanitary-looking food-service places [they] ha[d] seen.” The court ruled that when a trial court is asked to order an anonymous poster’s identity revealed, it should: (1) require the plaintiff to notify the anonymous posters that they are the subject of a subpoena, (2) afford the anonymous poster opportunity to file opposition; (3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech; (4) determine whether the complaint has set forth a prima facie action against the anonymous poster; and (5) balance the anonymous poster’s First Amendment right of free speech against the strength of the defamation claim and the necessity for disclosure of the defendant’s identity, prior to ordering disclosure.
Sykes v. Bayer, E.D. Va. No. 3:07CV660 (2007)
• In an unusual SLAPP, Kathleen Seidel, a New Hampshire blogger on vaccine and neurological issues, was served a subpoena commanding her to appear for deposition and to comply with exceedingly broad document production in a personal injury lawsuit she had written about on her blog. The subpoena contained no accusation that Seidel had defamed anyone or violated any other legal rights. Instead, she was being dragged in as a third-party witness in a suit in which she had no part or specialized knowledge. In this case, the use of the court as a weapon was so egregious that the judge not only quashed the subpoena, but ordered the lawyer who issued it to attend courses on ethics and federal discovery rules.
Jones Day v. Blockshopper, 2008 U.S. Dist. LEXIS 94442
• In August of 2008, the law firm Jones Day sued Chicago’s BlockShopper site, a site that reports on real estate transactions, often with descriptions of those buying and selling homes. Jones Day alleged trademark infringement and unfair trade practices based on Blockshopper’s use of Jones Day's service marks, links to the Jones Day site and the use of its lawyers’ photos. To avoid the expense of litigating the suit against a large law firm, BlockShopper agreed to take down the three stories at issue temporarily, but Jones Day then refused to drop the complaint. In negotiations, Jones Day told BlockShopper it would drop the case if BlockShopper paid it $10,000 and agreed to never write about its lawyers' real estate transactions again, but BlockShopper declined the offer and the suit proceeded. Trial was set for February 2009, and on January 30, 2009, the two parties settled on the condition that Blockshopper would no longer use embedded links when linking to the Jones Day site.
The Citizen Participation Act protects citizen journalists by:
1. Providing a procedure for quick dismissal of meritless lawsuits, and limiting or prohibiting discovery (the expensive process during which parties seek documents and testimony from one another and third parties);
2. Providing that a person or entity attempting to seek the identity of a blogger whose speech concerns a matter of public interest must first show the basis for the underlying suit and show that underlying suit has merit; and
3. Providing special protection for journalists, and broadly defining the term “journalist” to include most bloggers.
Please note: Some of the information and commentary contained in this listing are based on court filings and other informational sources that may contain unproven allegations made by the parties. The truthfulness and accuracy of such information may be in dispute.
For resources, scholarship and more information about CyberSLAPPs, click here.