Tag Archives: blogging

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

Online threats made by blogger were not protected by the First Amendment

State v. Turner, 2011 WL 4424754 (Conn. Super. September 6, 2011)

A Connecticut state court held that prosecuting a blogger for posting content online encouraging others to use violence did not violate the blogger’s First Amendment right to free speech.

Defendant was charged under a Connecticut statute prohibiting individuals from “inciting injury to persons or property.” Angry about a bill in the state General Assembly that would have removed financial oversight of Catholic parishes from priests and bishops, defendant posted the following statements to his blog:

  • [T]he Founding Fathers gave us the tools necessary to resolve [this] tyranny: The Second Amendment
  • [My organization] advocates Catholics in Connecticut take up arms and put down this tyranny by force. To that end, THIS WEDNESDAY NIGHT ON [my radio show], we will be releasing the home addresses of the Senator and Assemblyman who introduced bill 1098 as well as the home address of [a state ethics officer].
  • These beastly government officials should be made an example of as a warning to others in government: Obey the Constitution or die.
  • If any state attorney, police department or court thinks they’re going to get uppity with us about this, I suspect we have enough bullets to put them down too

Defendant challenged the application of the state statute as unconstitutional. The court disagreed, finding there to be “little dispute that the defendant’s message explicitly advocate[ed] using violence.” Moreover, the court found the threatened violence to be “imminent and likely.” The blog content said that the home address of the legislators and government officials would be released the following day.

Though the court did not find that a substantial number of persons would actually take up arms, it did note, in a nod to 9/11, “the devastation that religious fanaticism can produce in this country.” As such, there was a sufficient basis to say that defendant’s vitriolic language had a substantial capacity to propel action to kill or injure a person.

Blogging ex-wife gets alimony cut

Cardone v. Cardone, 2011 WL 1566992 (Conn.Super. April 4, 2011)

Here’s yet another case where social-media-as-evidence affected the legal relations between ex-spouses. (We’ve discussed other cases along these lines.) The court relied heavily on a blog that the ex-wife and her boyfriend maintained to order that the ex-husband’s alimony obligation be substantially reduced.

The pair divorced in 2001. Ex-husband was to pay ex-wife $250 per week in alimony unless and until either of them died or remarried. The divorce decree also made reference to a Connecticut statute which provides that a court can modify an order of alimony if the one receiving the alimony cohabits with an unrelated member of the opposite sex.

Ex-wife had a condo but rented it out to relatives. She spent months on her boyfriend’s sailboat in the Caribbean. As the court observed “their adventures [were] detailed in a lengthy and entertaining blog the couple posted on the internet, which was made an exhibit at the hearing.” (Anyone have a link? Let me know in the comments.)

Based on the blog evidence and the fact she’d rented out her condo, the court found that she was cohabiting with the guy, and that her financial situation had changed enough for the alimony to be reduced to $75 per week.

Updated 5/3/2011: To correct numbers in original post — award was reduced from $250 per week to $75 per week (not per month).

Texas supreme court says identities of anonymous bloggers should not be disclosed

In re Does, — S.W.3d —, 2011 WL 1447544 (Texas, April 15, 2011)

The issue of anonymity is a hot topic in internet law. The question of whether an internet user known only by an IP address or username or website name should be identified arises fairly often in the early stages of internet defamation and certain copyright infringement cases. For example, the issue is a big one in the numerous copyright cases that have been brought recently against BitTorrent users who get subpoenas after being accused of trading copyrighted works online.

The supreme court of Texas has issued an opinion that protects the anonymity of a couple of bloggers who were accused of defamation, copyright infringement and invasion of privacy by another blogger. The court ordered that a subpoena served on Google (who hosted the Blogger accounts in question) be quashed.

Texas rules of procedure (Rule 202) allow a petitioner to take depositions before a lawsuit is filed in order to investigate a potential claim. The petitioner in this case filed such an action, and Google agreed to turn over the information about the anonymous Blogger users.

But the anonymous bloggers objected, and moved to quash the deposition subpoena, arguing that the findings required for the discovery to be taken had not been made.

The trial court was required to find that:

(1) allowing the petitioner to take the requested depositions may prevent a failure or delay of justice in an anticipated suit; or

(2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.

Neither of these findings were made. Petitioner had tried to argue that the findings were not necessary because he had gotten the agreement of Google to turn over the information.

But the court saw how that missed the point. It held that without the required findings, the discovery could not be taken in the face of objections brought by other interested parties (the parties whose identities were at risk of being revealed).

While many courts have evaluated this kind of question using a first amendment analysis (i.e., is the John Doe’s interest in speaking anonymously outweighed by the plaintiff’s right to seek redress), the court in this case looked to more general concerns of avoiding litigation abuse. Citing to a law review article by Professor Hoffman, the court observed that there is “cause for concern about insufficient judicial attention to petitions to take presuit discovery” and that “judges should maintain an active oversight role to ensure that [such discovery is] not misused”.

Accused blogger did not cause substantial emotional distress

Ramsey v. Harman, — S.E.2d —-, 2008 WL 2415127 (N.C.App. June 17, 2008)

Defendant Harman maintained a blog on which she put up some posts accusing plaintiff Ramsey’s daughter of being a bully. Harman also posted this:

With all the bulling [sic] and harassing that goes on in our school system. Then the trouble that went on Friday at Madison Middle. The first student in that age group that came to mind was [plaintiff]‘s daughter. Wasn’t this the student that harassed the Cantrell child? And we wonder why some kids hate to go to school…..

Ramsey apparently took great offense, filing suit against Harman for “stalking” under North Carolina law, and sought a “civil no-contact order” (like a restraining order) against Harman. The trial court granted the no-contact order and Harman sought review with the state appellate court. On appeal, the court reversed.

Harman argued that the lower court erred in finding that she had violated the state’s anti-stalking law (N.C. Gen. Stat. §50C-1(6)). She also argued the order violated her First Amendment rights. Because the court found there was insufficient evidence to support a violation of the statute, it did not need to rule on the constitutional issue.

The main question before the court was whether Harman’s blog posts were intended to cause, and indeed did cause, “substantial emotional distress” to Ramsey and her daughter. The court found there was no such showing. There were no threats of physical harm, and the only evidence as to the effect on the plaintiff’s daughter was that she was “embarrassed” when teachers at school were reading the blog posts. But there was evidence that the school had blocked access to the website, making the claim implausible to begin with. There were no communications directly between the defendant and the plaintiff, and the plaintiff’s daughter’s name was never mentioned. Moreover, there was evidence that the posts were made in retaliation over a disagreement between the Harman and Ramsey which had taken place on a political website, and over an alleged threatening phone call Harman had gotten from some of Ramsey’s family members.

Kentucky settles banned blogger’s First Amendment challenge to Internet filtering policy

Ed. note: This is a guest post by Greg Beck, an attorney at Public Citizen in Washington, DC. Greg works on a variety of issues at Public Citizen, mostly involving Internet free speech, anonymity, and intellectual property. He was lead counsel for Mark Nickolas in his challenge to Kentucky’s ban on blogs. [More info...]

Political blogger Mark Nickolas yesterday settled his lawsuit against Kentucky, in which he challenged the state’s policy of blocking blogs on state-owned computers. The settlement provides that Kentucky will no longer target websites for restriction just because they are blogs, and will instead treat them in the same way it treats other websites with similar content. In other words, classifying a website as a “blog” is no longer a good enough reason to ban a site on the state’s computers.

Nickolas is the owner and primary author of BluegrassReport.org, a blog focusing on Kentucky news and politics and specializing in criticism of former Governor Ernie Fletcher. In 2006, the New York Times quoted Nickolas and noted the blog in an article about Fletcher’s indictment on charges of political corruption. The next day, without warning, the state reconfigured its Webwasher filtering software to block all access to blogs on state computers.

Nickolas filed suit and, represented by Public Citizen, raised two primary arguments that the policy was unconstitutional under the First Amendment. First, he argued that the policy was adopted specifically to target his blog and therefore constituted viewpoint discrimination, the worst form of government action under the First Amendment. Aside from the suspicious timing of the policy, Nickolas relied on internal state email showing that, despite public claims to the contrary, the governor’s office had ordered the ban on blogs and had specifically requested that the URL of Nickolas’s site be added to the “blacklist.” Moreover, Nickolas obtained the declaration of the former state official charged with administering the state’s computer systems at the time the policy went into place, who was told that the decision to ban blogs came from “high up” and was designed to hide the decision to ban Nickolas’s site in “a bunch of other stuff.”

Second, Nickolas argued that, even if the ban were not aimed specifically at his site, the state nevertheless violated the First Amendment by singling out blogs for special restrictions while ignoring other sorts of websites with comparable content. State records showed that the number of hits to news and political blogs from state computers was a small fraction of the millions of hits received each day by mainstream news sites like the Lexington Herald-Leader, the New York Times, and CNN.com. The state could offer no rational explanation for its decision to focus solely on blogs while ignoring other websites reporting the same information (especially since even blogs on mainstream news sites remained accessible). Moreover, Kentucky continued to allow access to many other categories of websites that served no work-related purpose and that received more traffic than blogs, including webmail, newsgroups and message boards, sports sites, shopping sites, financial and stock-trading sites, and others.

The case was the first to challenge a state’s decision to block access to blogs on state-owned computers. The most analogous case is the Fourth Circuit’s en banc decision in Urofsky v. Gilmore, where several Virginia professors sued over a law prohibiting access on state computers to sexually explicit materials. 216 F.3d 401 (4th Cir. 2000). The professors asserted that they needed access to the materials to fulfill their research, writing, and teaching responsibilities. That assertion, however, ultimately proved fatal to the professors’ claims when the court held that, because the professors were performing these duties in their capacities as state employees rather than as private citizens speaking on issues of public concern, their First Amendment rights were not implicated. Urofsky‘s reasoning suggests that if the professors had instead relied on restrictions to their personal use of state computers, the court would have evaluated the law’s constitutionality under the Supreme Court’s decision in Pickering v. Board of Education, 391 U.S. 563 (1968). Pickering and a line of cases following it established a balancing test for determining the constitutionality of a government’s restrictions on its employees’ speech, weighing the employees’ First Amendment interest in access to the restricted materials against the employer’s interest in maintaining order in the workplace.

Unlike the professors in Urofsky, Nickolas did not challenge the state’s restrictions on what employees could read pursuant to their job-related responsibilities. Kentucky, like many other employers, had long allowed its employees to use state-owned computers for personal as well as work-related purposes as long as that use did not interfere with performance of job responsibilities. Pursuant to Kentucky’s policy, employees could and frequently did read online news sites, including blogs, from workplace computers. The state’s decision to block access to the blogs while still allowing access to other news sites imposed on its employees its own preferences about which sources of news were acceptable and which were not. Nickolas argued that, even if the state had the power to entirely ban personal use of workplace computers (a proposition that Nickolas did not dispute), it did not have the power to selectively allow access to only those news sites it approved as sources of news. It was simply not a proper role for government, Nickolas argued, to decide which websites were legitimate news sites and which were not.

In the settlement finalized yesterday, Kentucky reserved its right to regulate use of computers in the workplace, but agreed to do so in a viewpoint-neutral manner that treats blogs the same as equivalent non-blog websites. Although a decision on the legality of blog-banning policies will be left for another day, the case should at least cause public employers to think twice before cutting their employees off from a large and important piece of the online political discussion.