SLAPPs Targeting Internet Speech
CyberSLAPPs in the News
- 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 some commentators called “hopeless,” 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 she “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 Butler University v. John Doe, Case. No. 49D020901PL001164 (Filed Jan. 8, 2009).
- In Maryland in 2006, a real estate developer brought a defamation lawsuit against an internet newspaper company, Independent Newspapers, Inc. (INI), and three John Doe defendants in state court. The lawsuit arose from statements criticizing the developer for selling his historic home to another developer and accusing him of maintaining a dirty Dunkin’ Donuts establishment. INI removed the disputed comments after the developer complained, but the developer sued nonetheless. INI moved to dismiss the complaint, arguing that section 230 of the Communications Decency Act immunized it from liability for comments posted by third parties. At the same time, the developer served a subpoena demanding that INI identify the Doe defendants. On appeal, the court quashed the subpoena, and set out requirements for when a trial court is asked to order an anonymous poster’s identity revealed, including that the court must 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. Brodie v. Independent Newspapers, Inc. 2009 Md. LEXIS 18 (Md. Feb. 27, 2009).
- 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. See Sykes v. Bayer, E.D. Va. No. 3:07CV660 (2007).
- 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. See Jones Day v. Blockshopper, 2008 U.S. Dist. LEXIS 94442 (N.D. Ill. Nov. 13, 2008).
- In 2001, Idaho company Medinex Systems, Inc. sued fourteen John Does who criticized the company on a Yahoo! message board. Medinex alleged defamation, tortious interference with business relationship and wrongful interference with a prospective economic advantage, and then issued a subpoena to Yahoo! in California seeking the identities of their critics without first proving any illegal actions. On May 7, 2001 the Electronic Frontrier Foundation, along with San Francisco law firm Farella, Braun & Martel, filed a motion in the Federal District Court in the Northern District of California to defend the right of anonymous critics to express their views online without fear of arbitrary disclosure of their identity. On May 21, 2001, Medinex dismissed the suit before a hearing could be held. Medinex v. Awe2bad4mdnx, Case No. 01-7012 (N.D.Ca. May 21, 2001).
- 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. Jones had been arrested on suspicion of soliciting an undercover officer for sex, and Abovethelaw commented on the arrest, calling Jones the “Nutty Professor.” Jones sued for this statement, and for damages he alleges arose from a collage posted by an anonymous commenter featured 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. Each of these claims appears weak: False light is no longer recognized as a tort in Florida, and Abovethelaw.com is not legally liable for material posted there by other authors. Jones brought the suit in federal court, where there is no anti-SLAPP law. Even if the court were to apply the state’s anti-SLAPP law, Florida’s anti-SLAPP statutes do not protect statements such as those made by and posted on Abovethelaw.com about Jones. Jones v. Minkin, et. al., Case 1:09-cv-23256-MGC (Filed Oct. 27, 2009).
- In 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. In their complaint, plaintiffs 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. The complaint purports to include Wikimedia “solely as a nominal Defendant,” and A4M seeks to identify the anonymous posters through discovery. See American Academy of Anti-Aging Medicine v. Wikimedia Foundaion, Inc. No. 0911197 (Filed Aug. 9, 2009).