Injunction against blogger violated the First Amendment

Prohibiting former tenant from blogging about landlord was unconstitutional prior restraint against speech.

800px-Taize-SilenceDefendants wrote several blog posts critical of their former commercial landlord. The landlord sued for defamation and tortious interference, and sought an injunction against defendants’ blogging. The trial court granted the injunction, determining that defendants had “blogged extensively about [plaintiffs] and many of these blogs [were] arguably defamatory.” Although the court noted that a trial on the defamation claims was yet to be held, it ordered defendants “not to enter defamatory blogs in the future.”

Defendants sought review with the Court of Appeal of Florida. On appeal, the court reversed and remanded.

It held that injunctive relief was not available to prohibit the making of defamatory or libelous statements. “A temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns.” But the court noted a limited exception to the general rule where the defamatory words are made in the furtherance of the commission of another intentional tort.

In this case, plaintiffs alleged another intentional tort – intentional interference with advantageous business relationships. But the court found that plaintiffs failed to present sufficient evidence to show they were entitled to an injunction for that claim. The trial court record failed to support an inference that the defendants’ blog posts had a deleterious effect upon defendants’ prospective business relationships.

Chevaldina v. R.K./FL Management, Inc., — So.3d —, 2014 WL 443977 (Fla.App. 3 Dist. February 5, 2014)

Image credit: By Maik Meid (Own work) [CC-BY-SA-3.0], via Wikimedia Commons

Lawyer’s tweet about case was not defamatory

Plaintiff sued an attorney and his law firm for defamation over a tweet the attorney posted about one of his cases that read as follows:

[Plaintiff] runs an organization for the benefit of its officers and directors, not shareholders and employees. The RICO suit was not frivolous. The 500K lawsuit is frivolous, however, so buyer be wary.

(Defenant used Twitlonger to account for the number of characters over 140.) The trial court dismissed the defamation lawsuit on an anti-SLAPP motion. Plaintiff sought review with the Court of Appeal of California. The court affirmed the dismissal.

It found that the tweet was nonactionable opinion, holding that “deprecatory statements regarding the merits of litigation are ‘nothing more than the predictable opinion of one side to the lawsuit’ and cannot be the basis for a defamation claim.” Further, insofar as the tweet asserted “[plaintiff] runs an organization for the benefit of its officers and directors, not shareholders and employees,” the attorney was stating his subjective opinion with respect to corporate governance at the plaintiff company. Accordingly, the tweet was not actionable.

Getfugu, Inc. v. Patton Boggs LLP, 2013 WL 4494952 (Cal.App. 2 Dist. August 21, 2013)

Does the constitution protect anonymity?

Yes, the constitution protects one’s right to speak anonymously, but only to a certain extent. The question of one’s First Amendment right to speak anonymously comes up pretty often in situations where a plaintiff seeks to unmask the identity of someone who is alleged to have committed an illegal act against the plaintiff online. Most often it is a plaintiff seeking to unmask an online critic in a defamation lawsuit.

internet anonymity

In 1995, the U.S. Supreme Court held in McIntyre v. Ohio Elections Commission that a state statute prohibiting the distribution of anonymous campaign literature was unconstitutional. The court said that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” 514 U.S., at 342.

One would be hard pressed to overstate the importance of anonymous speech. Three and a half decades before the McIntyre decision, the Supreme Court observed that “[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.” Talley v. California, 362 U.S. 60, 64 (1960). And “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

But free speech protection has its limits. A person does not have a First Amendment right to defame another. So when one party seeks to “de-anonymize” another using the court system, the judge must strike a balance between the plaintiff’s right to seek redress and the defendant’s interest (if any) in remaining anonymous.

Courts have come up with a variety of balancing tests. Though different courts have come up with different ways of conducting the analysis, the test always involves looking at the strength of the facts the plaintiff puts in his or her initial filing. The more likely it appears there is real defamation, for example, the less likely the anonymous speech will be protected. If the strength of those allegations gets beyond a certain tipping point, the risk of an anonymous free speech violation becomes outweighed by the need for the plaintiff to get relief for the unprotected, unlawful speech.

Evan Brown is a Chicago technology and intellectual property attorney, representing businesses and individuals in a variety of situations, including matters dealing with online anonymity and anonymous speech.

Photo credit: petter palinder under this license.

Website operators not liable for third party comments

Spreadbury v. Bitterroot Public Library, 2012 WL 734163 (D. Montana, March 6, 2012)

Plaintiff was upset at some local government officials, and ended up getting arrested for allegedly trespassing at the public library. Local newspapers covered the story, including on their websites. Some online commenters said mean things about plaintiff, so plaintiff sued a whole slew of defendants, including the newspapers (as website operators).

The court threw out the claims over the online comments. It held that the Communications Decency Act at 47 U.S.C. 230 immunized the website operators from liability over the third party content.

Defendant argued that the websites were not protected by Section 230 because they were not “providers of interactive computer services” of the same ilk as AOL and Yahoo. The court soundly rejected that argument. It found that the websites provided a “neutral tool” and offered a “simple generic prompt” for subscribers to comment about articles. The website operators did not develop or select the comments, require or encourage readers to make defamatory statements, or edit comments to make them defamatory.

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