“Nutty” Lawsuit May be a SLAPP

In November of 2009, Miami law professor Donald Marvin Jones sued the popular website Abovethelaw.com, along with its parent company and editor David Lat, alleging $22 million in damages for posts about him.

Jones had been arrested on suspicion of soliciting an undercover officer for sex, and Abovethelaw commented on the arrest, in one post calling Jones the “Nutty Professor.” Jones sued for this statement, and for damages, he alleges, arose from a collage posted by an anonymous commenter featuring him soliciting sex.

In his rather strangely-worded complaint, Jones makes allegations of false light, invasion of privacy and copyright infringement, and posits that each of these injuries was motivated by racism. Jones’ claims appear weak: For starters, the tort of false light is no longer recognized in Florida, and Abovethelaw.com is not legally liable for material posted there by other authors. Eugene Volokh calls some parts of the complaint “downright frivolous,” and Ben Sheffner at Copyright & Campaigns says “Jones needs to go back to complaint-drafting school.”

Jones’ lawsuit is an excellent example of the need for uniform, comprehensive protection against SLAPPs – Strategic Lawsuits Against Public Participation. SLAPPs are meritless lawsuits arising from speech about an issue of public interest. in response to the increase of such lawsuits, twenty-eight states have protection against SLAPPs, which most commonly allows a defendant to quickly dismiss a SLAPP, to stay discovery pending dismissal, and to recover fees and costs. But, the scope of this protection varies dramatically by state. Florida’s anti-SLAPP laws are extremely narrow, and can only be used to dismiss lawsuits brought by the government or homeowners’ associations.

But, even if the state law did apply to Abovethelaw’s statements, Jones brought the suit in federal court, and there is no federal anti-SLAPP law. Moreover, some federal courts have been reluctant to apply anti-SLAPP statutes to state claims in federal court. Thus, while this lawsuit is likely to be dismissed, it will still act as a potentially costly tool to bludgeon Abovethelaw for speech Jones was not pleased with. As the Citizen Participation Act would protect all speech directed toward the government, and all speech about an issue of public interest from meritless lawsuits, no matter which court such lawsuits are brought in.

For additional commentary on the merit of Jones’ claims, see The Business Insider Law Review, The Wall Street Journal, and The National Law Journal. Abovethelaw will not comment on this, the first lawsuit against it, but the site is collecting updated links related to the matter.

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