Administrators barred a Connecticut high school student from running in a student election after the student critized admininstrators online for their handling of a student festival. In the spring of 2007, Jamfest, a yearly music festival at a Connecticut high school, experienced a series of planning setbacks that threatened to postpone or cancel the event. When Avery Doninger – a junior and incumbent class secretary – was unable to meet with the school's principal, Karissa Niehoff, to talk about the event she and three other students sent a mass e-mail asking members of the community to speak to administrators about putting the event back on schedule. Doninger and Niehoff later had a discussion in the hallway, during which she says Niehoff informed her that the event had been cancelled.

That night, Doninger wrote a Livejournal blog post criticizing the school officials' handling of the issue. In the post, she called the school officials “douchebags” and asked her fellow students and their parents to complain to school superintendent Schwartz in order “to piss [Schwartz] off more” than the mass e-mail had.

In response to her blog post, the school barred Doninger from running for reelection as Class Secretary for her senior year. At the class election, school officials prevented a group of students from wearing “Team Avery” t-shirts. According to school principal Niehoff, the t-shirt ban was intended to prevent electioneering by candidates and supporters who could afford such merchandise.

Avery's mother, Lauren Doninger, attempted to convince school officials to consider alternative forms of punishment. She also tried to establish whether or not the incident would appear in Avery's school record. When a resolution could not be reached on these issues, the Doningers filed suit in Connecticut state court against Niehoff and Schwartz. The defendants removed the case to the federal court in Connecticut.

The Doningers' complaint for injunctive relief alleged violations of Connecticut free speech laws, intentional infliction of emotional distress, and violations of Avery's constitutional rights to free speech, due process, and equal protection under the Civil Rights Act (Title 42 U.S.C. § 1983, 1988). The complaint sought to enjoin the defendants on seven different counts. All told, the complaint would prevent defendants from installing anyone as Class Secretary until an election was held with Avery on the ballot; from maintaining negative remarks related to this incident in Avery's school record; from punishing students for wearing t-shirts bearing slogans related to the incident; from preventing Avery from addressing her class in assemblies; and from punishing or intimidating Avery, her mother, or any students who subsequently might vote for Avery in the new election.

The district court found that Avery met the initial “irreparable harm” standard required for a preliminary injunction through her showing that her speech may have been chilled because she voluntarily chose not to wear a "Team Avery" t-shirt at school, limited her e-mail and blog communications to prevent a similar incident, and restricted her Livejournal account to “private.”

However, the court denied the Doningers' motion, finding that she had not demonstrated a likelihood of success on the merits as to her constitutional claims. In addressing the Doningers' claims, the court divided its discussion into First Amendment and Equal Protection issues.

The court determined that Avery's blog post constituted on-campus speech for First Amendment purposes, regardless of the fact that she wrote it off campus, because "the blog was related to school issues, and it was reasonably foreseeable that other LMHS students would view the blog and that school administrators would become aware of it." Slip op. at 28. The court then noted that school administrators have the right, in certain situations, to restrict on-campus speech to promote school-related goals. The court also ruled that Avery does not have a First Amendment right to run for voluntary office.

Considering these two concepts together, the court determined that the defendants may have had the right to prevent Avery from running for office as punishment for her statements in order to promote civility in school functions, thus making an injunction inappropriate. The court had more serious misgivings about the denial of the right to wear “Team Avery” t-shirts, which it related to the black armbands in the famous Tinker school speech case. However, it decided to reserve that issue until the parties have had a chance to develop the record as the case goes forward.

The court denied the injunction as to the Doningers' Equal Protection claims because Avery's blog post made her situation unique compared to the other students involved.

Update:

5/29/2008 - The U.S. Court of the Appeals for the Second Circuit affirmed the district court's decision using similar reasoning.

11/12/2008 - The district court heard argument on the defense's motion for summary judgment.

1/15/2009 - The district court grants the defendants' motion for summary judgment in part and denies the plaintiff's motion for partial summary judgment.

1/23/2009 - District court trial set to begin June 4, 2009.

3/19/2009 - District court denies both the plaintiff's and the defendants' motions to reconsider the rulings on their summary judgment motions.

4/7/2009 - Defendants appeal the district court's ruling on its summary judgment motion to the United States Court of Appeals for the Second Circuit.

4/16/2009 - Plaintiff appeals the district court's ruling on its summary judgment motion to the United States Court of Appeals for the Second Circuit.

5/14/2009 - The district court grants the plaintiff's motion requesting that the district court certify as final judgment its ruling on the defendants' motion for summary judgment. Defendants file motion for stay of trial to allow time for their appeal to the Second Circuit.

4/25/2011 - The U.S. Court of Appeals for the Second Circuit decides in favor of the principal and superintendent on the issue of qualified immunity, affirming those portions of the district court's summary judgment ruling that were in favor of the principal and superintendent and reversing the remainder.

07/21/2011 - Avery filed a Petition for Writ of Certiorari to the Supreme Court of the United States.

10/31/2011 - The Supreme Court denied Avery's Petition for Certiorari.

 

An attorney for Fred Goldman and his copyright management company, Ron Goldman, LLC, sent a cease and desist letter to Digg.com, a social linking site. In the letter, the attorney alleged that Digg was "encouraging and inducing users of [its] website to download portable document format ('PDF') copies" of the manuscrip for OJ Simpson's book "If I Did It." The letter demanded that Digg cease and desist from distributing the book.

It is unclear what action, if any, Digg took in response, but links to what purports to be the manuscript dating from June 2007 remain on the site. Since Digg does not itself host PDF files, the allegedly infringing activity was most likely a link posted by a Digg user to a PDF file hosted by another website.

Justin Leonard of Scottsdale, Arizona publishes three websites: infomercialblog.com, infomercialratings.com, and infomercialscams.com. These websites give consumers the opportunity to voice their criticisms and defenses of various products and services.

On September 21, 2007, DirectBuy, a company that apparently helps customers to buy furniture directly from manufacturers, sent a cease-and-desist letter to Leonard through its lawyers, Dozier Internet Law, P.C. The letter claims that Leonard and his users had defamed the company by referring to its direct-buy plan as a "scam" and a "nightmare." It threatens a lawsuit unless Leonard removes "all defamatory and disparaging statements" about DirectBuy from his websites and compensates the company for its attorneys fees and costs. Most interestingly, the letter ends with an assertion of copyright on behalf of the law firm:

Please be aware that this letter is copyrighted by our law firm, and you are not authorized to republish this is any manner. Use of this letter in a posting, in full or in part, will subject you to further legal causes of action.

Public Citizen Litigation Group got involved on behalf of Leonard. Lawyers for the group not only posted the Dozier firm's letter, but sent a powerful (yet cheeky) response entitled "How not to write a cease and desist letter -- an open letter in response to your September 21 threat." The response not only disputes DirectBuy's defamation claim and its expansive reading of the important recent CDA 230 case, Fair Housing Council v. Roommate.com, 489 F.3d 921 (9th Cir. 2007), but also takes the Dozier firm to task for its copyright warning, calling it "the worst thing about your letter". The Public Citizen lawyer continued:

Such a posting [of the letter] would be fair use. Moreover, inquiry by my colleague Greg Beck produced the interesting information that the copyright in the letter has not been registered. Sadly, according to what you told him, you have been successful in this intimidation because none of your cease and desist letters has ever been posted.

There is always a first time. We are posting the letter on the Public Citizen web site (the letter can be found at http://www.citizen.org/documents/directbuycd.pdf) so the public can assess our differences by comparing your contentions with our responses. By this letter, we are inviting you to test the validity of your theory that a writer of a cease and desist letter can avoid public scrutiny by threatening to file a copyright law suit if his letter is disclosed publicly on the Internet.

There appears to have been no developments after Public Citizen's response letter.

After hearing that the Taubman Company Limited Partnership was building a large shopping mall near his home, Henry Mishkoff created a website and registered a domain name for it at "shopsatwillowbend.com." (Taubman's official website for the mall was located at "theshopsatwillowbend.com" and "shopwillowbend.com.")

Mishkoff's website featured information about the mall, including a map and links to the individual websites of the tenant stores. The site contained a prominent disclaimer, saying that Mishkoff's site was "unofficial" and providing a link to Taubman's official site. Mishkoff characterized his site as a "fan site" with no commercial purpose, but it linked to the website associated with his web design company, Webfeats, and the website of his girlfriend's shirt company.

Taubman sent Mishkoff a series of letters claiming that Mishkoff's use of the domain name violated its trademark rights and demanding that he remove the site and transfer the domain to them. Preliminary settlement negotations fell through and Taubman filed a lawsuit in federal district court in August 2001. (For more information, please see the CMLP Database entry for the Taubman v. Webfeats lawsuit.)

In October 1994, an unknown user posted statements on Prodigy's "Money Talk" bulletin board indicating that Stratton Oakmont, Inc., a Long Island securities brokerage firm, and its president, Daniel Porush, had committed criminal and fraudulent acts in connection with the initial public offering of Solomon-Page, Ltd. As a result, Stratton and Porush sued Prodigy and anonymous defendants in New York state court for defamation.

The plaintiffs argued that Prodigy should be considered a "publisher" of the anonymous poster's statements. Under the common law of defamation, if Prodigy were considered a publisher, it could be held liable for the statements of the unknown user. Conversely, if it were found to be merely a "distributor," it could not be held liable unless it knew or had reason to know about the allegedly defamatory statements.

"Money Talk" was, at the time, a widely read forum covering stocks, investments, and other business matters. Prodigy contracted with Charles Epstein to act as "Board Leader," a position entailing, in part, participation in board discussions, board promotional efforts, and board supervision. In its argument that Prodigy was a publisher of the defamatory statements, the plaintiffs pointed to representations Prodigy had made in various newspaper articles representing itself as an organization that exercised editorial control over the content on its servers.

In making their case, the plaintiffs also pointed to Prodigy's "content guidelines," which stated rules that users were expected to abide by, a software screening program which filtered out offensive language, and the employment of moderators or "Board Leaders" who were responsible for enforcing the content guidelines.

In May 1995, on the plaintiffs' motion for partial summary judgment, the court held that these representations and policies were sufficient to treat Prodigy as a publisher. In so holding, the court distinguished the case from an earlier one involving CompuServe, which was found merely to be an "electronic for-profit library" or repository and thus a passive distributor. In particular, the court pointed to Prodigy's creation of an "editorial staff of Board Leaders who have the ability to continually monitor incoming transmissions." The court noted, however, that bulletin boards should normally be considered distributors when they do not exercise significant editorial control, as Prodigy had done.

Prodigy moved for reconsideration of the May 1995 decision, but the party's settled in October 1995, apparently before the motion was decided.

In passing the Communications Decency Act of 1996, which, among other things, established immunity for internet service providers for publishing "information provided by another information content provider," 47 U.S.C. § 230(c)(1), the House explicitly stated its intent to overturn the result reached in the Prodigy case. See H.R. Conf. Rep. 104-58, at 194.

In December 2005, Justin Layshock and three other high school students created fake MySpace profiles for their principal, Eric Trosch. The profiles included an official school portrait of Trosch and answers to the website's template questions for creating a profile. Many of the answers were derogatory and sexually explicit. One profile indicated that Trosch's favorite movie was a pornographic film. Another indicated that Trosch "liked to have sex with students and brutalize women." A third said that he "kept a keg of beer at his desk at school, was on steroids, and smoked marijuana."

After the school district disciplined Layshock, he brought a federal lawsuit claiming that the school's punishment violated his First Amendment rights. (Please see the CMLP database entry on the school's disciplinary action for more information).

At some point, the identies of the other three students came to light, and Trosch filed a defamation suit in Pennsylvania state court in April 2007.

Update:

12/01/2007 - Judge Christopher J. St. John denied the defendants’ motion to dismiss the state case, but held that the statements were not made with actual malice and that the principal could not recover punitive damages.

11/2008 - Trosch dropped his claims against three of the defendants, leaving only Layshock in the case.

Sometime in 2007, statements appeared on Harold King's forum site, "McAlister Watercooler," questioning the legality of Steve Covington's payday loan business and linking him to a former State Senator who had pled guilty to charges of perjury, conspiracy to obstruct a Federal Election Commission investigation, and conspiracy to violate the Federal Election Commission Act.

In June 2007, Covington sued King and an undefined number of anonymous users of the forum for libel in Oklahoma state court. Covington sought a temporary restraining order against the forum, but the record is unclear as to the precise nature of the requested restraining order (i.e., to remove specific content, take down the site, or restrain future statements). Covington also moved for an order granting expedited discovery (presumably, discovery of the unknown defendants' identities). The court denied Covington's motion for a temporary restraining order in June 2007. The status of Covington's discovery request is unclear.

Update:

6/14/2007 - King filed a motion to dismiss.

3/28/2008 - Court granted King's motion to dismiss.

Allen Harkleroad was dissatisfied with the installation of a fence he purchased from Lowe's. When Lowe's refused to provide further assistance, Harkleroad launched a "gripe" site, Lowes-sucks.com. On the site, Harkleroad posted photos and text detailing his complaints about the installation, deploring Lowe's workmanship and customer service, and describing the actions of Lowe's attorneys and debt collectors.

On September 19, 2007, LF, LLC, a company that owns and manages Lowe's trademarks, sent a cease-and-desist letter to Harkleroad. The letter asserted that Harkleroad's use and alteration of Lowe's trademarks on his site, as well as in the domain name itself, constituted trademark infringement under federal law. The letter warned that LF would "consider other legal remedies" if Harkleroad did not respond by Sept. 28, 2007.

The Electronic Frontier Foundation is representing Harkleroad in the dispute. A September 24, 2007 update on Lowes-sucks.com indicated that Harkleroad's attorneys had been in contact with Lowe's attorneys about a settlement. Ars Technica reported on September 26, 2007 that Harkleroad made a settlement "counter-offer," to which Lowe's had not yet responded.

The Lowes-sucks.com website is no longer operational, leading us to believe that the parties settled.

Best Western International (BWI) is a non-profit organization whose members operate Best Western hotels around the world. In May 2006, the website "www.freewrites.com" was established as a forum for BWI members and "governors" to discuss matters about BWI administration on a confidential basis. (BWI "governors" act as liasons between the members and the board of directors.) Although designed as a forum for members and governors only, the website was accessible to members of the public who knew of its location. The site was not authorized by BWI.

Proposed changes in BWI's method of operation drew extensive comment and criticism from anonymous posters on the site.

In June 2006, BWI brought a lawsuit in federal court in Arizona against the website administrator (John Doe), as well as BWI members who posted comments on the website ('Jane Does 1-X') and BWI governors who posted comments on the website ('John Does 1-X'). BWI alleged defamation and trademark infringement, as well as breach of contract, breach of implied contract, and breach of implied covenant of good faith and fair dealing. The complaint did not specify any allegedly defamatory statements.

BWI moved for expedited discovery, requesting permission to serve subpoenas on various internet service providers. The subpoenas sought disclosure of the identities of the operator of the forum site and those individuals who had posted messages.

Following Doe v. Cahill, 884 A.2d 451 (Del. 2005), the court denied BWI's motion to expedite discovery, concluding that BWI had not made a sufficient evidentiary showing to overcome the defendants' qualified First Amendment right to engage in anonymous speech. The court stressed that BWI had failed to identify a single false statement made by the anonymous defendants, a single item of confidential information posted on the site by them, or a single instance where BWI's mark was improperly used. Best West. Int'l v. Doe, 06-cv-01537, slip op. at 7 (D. Ariz. July 25, 2006). The court left open the possibility that BWI could meet its required evidentiary showing on a renewed motion.

During the course of litigation, two defendants came forward of their own accord: James Furber, the operator of the website, and James Dial, a BWI member who posted comments on the site.

BWI renewed its motion for expedited discovery seeking disclosure of the identities of the remaining anonymous defendants, and the court granted the motion in October 2006. The court found that BWI had overcome the defendants' qualified First Amendment right to engage in anonymous speech by introducing evidence sufficient to create a genuine issue of fact on its breach of contract claims. Best West. Int'l v. Doe, 06-cv-01537, slip op. at 9-10 (Oct. 25, 2006).

In the same opinion, the court dismissed the trademark and unfair competition claims in BWI's original complaint because there was no allegation that the defendants had used BWI's marks in connection with the sale or advertising of goods or services. See id. at 4-5. The dismissal was without prejudice, and the trademark claims appeared again in BWI's amended complaints.

In November 2006, BWI named Furber and Dial in its first amended complaint. After conducting discovery, BWI filed its second amended complaint in August 2007, naming six defendants: James Dial, Nidrah Dial, James Furber, Teresa Furber, Loren Unruh, and Gayle Unruh. James and Nidrah Dial and Loren Unruh are BWI members.

In May 2007, the court denied James Furber's motion for summary judgment without prejudice, finding it premature. It granted Furber leave to re-file his motion after August 17, 2007.

Update:

8/21/2007 - Best Western filed second amended complaint.

9/10/2007 - James Dial filed answer to second amended complaint.

11/28/2007 - Parties filed joint stipulation to dismiss defendant Theresa Thurber.

5/9/2008 - Defendants James Dial, Nidrah Dial, Loren Unruh, Gayle Unruh, and James Furber moved for summary judgment.

9/5/2008 - The court granted in part and denied in part the defendants motion for summary judgment.

10/20/2008 - Court denied the plaintiffs' motion to dismiss Dial's counterclaim.

12/5/2008 - Court referred the case to a magistrate for a settlement conference. 

3/12/2009 - Court dismissed the case with prejudice after the parties stipulated to the dismissal.

Edward Falk operates a spam watchdog website, the "Spam Tracking Page." On the website, Falk indicated that Jerry Reynolds was associated with a number of spamming companies and pornographic websites.

On August 24, 2004, Reynolds's lawyer sent Falk a cease-and-desist letter, threatening to sue for defamation and unspecified violations of the Lanham Act if Falk did not remove the offending content within 10 days. Falk made some minor changes to the website, but left the bulk of the material relating to Reynolds unchanged. On October 14, 2004, Reynolds's lawyer sent another letter, again claiming that material on Falk's website defamed Reynolds. This letter threatened suit (again) if Falk did not remove the entire website from the Internet within 10 days.

Reynolds filed suit anonymously in February 2006 (Please see the CMLP database entry on Reynold's lawsuit for more information.)