Lee Kaplan, a freelance journalist and columnist for FrontPageMag.com, sued Yaman Salahi, a student blogger at the University of California at Berkeley, in small claims court for libel and interfering with business relations.

Salahi's blog, Lee Kaplan Watch, monitored and commented critically on Kaplan's pro-Israel articles and activities. Kaplan claimed that Salahi made false statements about him, including that Kaplan "represents the very worst of journalistic integrity and honesty, violating ethical norms by impersonating others and writing fabricated biographies of various persons involved in campus activism." Kaplan also claimd that Salahi sent letters and emails to Kaplan's potential employers.

Kaplan won in small claims court, and the judgment was affirmed on appeal. Salahi was ordered to pay Kaplan $7,500 in damages. The court did not release an opinion regarding its decision.

The plaintiffs, Dr. Stephen J. Barrett and Dr. Timothy Polevoy, operated websites devoted to exposing health frauds. Ilena Rosenthal directed the Humantics Foundation for Women and operated an Internet discussion group. Barrett and Polevoy claimed that Rosenthal and her co-defendants committed libel by distributing defamatory statements in emails and Internet postings to various forums. Specifically, they alleged that Rosenthal republished two Usenet newsgroup messages "accusing Dr. Polevoy of stalking women and urging 'health activists . . . from around the world' to file complaints to government officials, media organizations, and regulatory agencies." They also alleged that Rosenthal posted a message to a newsgroup stating that Quackwatch, the organization associated with Barrett's website, "appears to be a power-hungry, miguided bunch of pseudoscientific socialistic bigots," that it was "an industry funded organization," and that it was being sued by many doctors and health organizations. They claimed also that Rosenthal posted another message to a newsgroup referring to Barrett and Polevoy as "quacks."

Rosenthal moved to strike the plaintiffs' complaint pursuant to California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16). She claimed that her statements were protected speech, and argued that the plaintiffs could not establish a probability of success on the merits of their lawsuit because she was immune from liability under CDA 230 (which insulates a "provider or user of an interactive computer service" from being held liable as the publisher or speaker of "any information provided by another information content provider"). She also argued that her statements were non-actionable statements of opinion.

The district court granted the motion, finding that Rosenthal's statements concerned an issue of public interest within the scope of the anti-SLAPP statute, and that all but one of the alleged defamatory statements were non-actionable statements of opinion. The only remaining statement appeared in an article that Rosenthal received via e-mail from her co-defendant, Tim Bolen. This article accused Dr. Polevoy of stalking a Canadian radio producer. Rosenthal posted a copy of the article on two newsgroups devoted to alternative health issues, not on her own discussion group. The trial court held that Rosenthal's republication of Bolen's article was protected by CDA 230.

The California Court of Appeal reversed the trial court, insofar as its decision applied to the statement about Dr. Polevoy's alleged stalking. It held that CDA 230 did not protect Rosenthal from liability as a "distributor" of the defamatory material under the common law of defamation.

In November 2006, the California Supreme Court reversed the Court of Appeal, holding that CDA 230 prohibits "distributor" liability for Internet publications. It also held that CDA 230 protects individual users of interactive computer services, and that it protects "active" republication as well as "passive" republication of others' statements. On the "distributor" issue, the California Supreme Court followed Zeran v. Amercia Online, 129 F.3d 327 (4th Cir. 1997), which also refused to draw a distinction between a "distributor" and a "publisher' for purposes of CDA 230. Both cases are widely regarded as important decisions standing for the proposition that, in the words of Eric Goldman, "no one is liable for other people's content online -- period (except for claims not covered under the statute -- IP, federal criminal law, ECPA)."

It is unclear from the docket sheets what the status of the lawsuit is with respect to the remaining defendants, but there has been no action in the trial court since 2004.

Update:

Tim Bolen reports that Judge Stephen Dombrink of California Superior Court, Alameda County, dismissed the case against the remaining defendants in March 2009.

Mummagraphics, Inc., run by anti-spam activist Mark Mumma, operated websites devoted to opposing spam messages. Mumma received a number of unsolicited emails from Cruise.com, a subsidiary of travel agency Omega World Travel, Inc. In early 2005, Mumma posted comments on one of his websites accusing Omega, Cruise.com, and Daniel and Gloria Bohan (Omega's founders) of being "spammers." Mumma also posted a photo of the Bohans taken from the Omega website with a caption describing them as "cruise.com spammers."

In February 2005, Omega, Cruise.com and the Bohans sued Mumma and Mummagraphics in federal court, claiming defamation, copyright infringement, trademark infringement, and unauthorized use of the Bohans' likenesses. Mummagraphics and Mumma counterclaimed for violations of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act) and an oklahoma anti-spam statute.

The federal court granted summary judgment to Mummagraphics and Mumma on all of the plaintiffs' claims, except the defamation claim. It granted summary judgment to Gloria Bohan, Omega, and Cruise.com on the defendants' counterclaims based on the CAN-SPAM Act and Oklahoma law. Mummagraphics appealed, and the Fourth Circuit affirmed dismissal of the counterclaims. Omega World Travel, Inc. v. Mummagraphics, 469 F.3d 348 (4th Cir. 2006).

The defamation claim went to trial, and the plaintiffs won a $2.5 million jury verdict in their favor. On June 1, 2007, the court vacated the original judgment and remitted the judgment to $330,000 -- $10,000 each in compensatory damages to Omega World Travel, Cruise.com, and Gloria Bohan, and $100,000 each in punitive damages to Omega, Cruise.com, and Bohan. Plaintiffs are seeking to enforce the judgment in the United States District Court for the Western District of Oklahoma.

Andrew Whitehead published statements on his website, Anti-CAIR, that denounced the Council on American-Islamic Relations (CAIR) as a "terrorist supporting front organization" that had strong financial ties to Hamas and other Islamic terrorist organizations. In April 2004, CAIR sued Whitehead over these and similar comments in Virginia state court. During the discovery phase of the litigation, Whitehead requested extensive documentation regarding CAIR's finances and relationships with Hamas, Saudi Arabia, and Islamist organizations.

In April 2006, shortly before a hearing in which the court was to decide on several of Whitehead's discovery requests, the parties settled, and the case was dismissed with prejudice by stipulation. The terms of the settlement were not made public. Whitehead reported on his website that "the parties have reached a mutually agreeable settlement," but noted that "[t]he policies and procedures of Anti-CAIR (ACAIR) have not changed in any way as a result of the CAIR lawsuit settlement." Whitehead issued no apologies, retractions, or corrections, and the statements that triggered the lawsuit are still posted on his website.

Robert Sanchez lost an election for City Commissioner in Brownsville, Texas, but kept the forum on his campaign website active after the election. Elena Cisneros, the wife of Sanchez's former opponent, sued Sanchez for defamation in Texas state court claiming that pseudonymous users of the site posted statements stating that she had used cocaine.

Cisneros claimed that Sanchez had posted some of the statements under a pseudonym, and that he was responsible for the postings of others because he had refused to remove them, even though he was aware of their defamatory character.

Sanchez removed the case to federal court on grounds that Section 230 of the Communications Decency Act (47 U.S.C. § 230(c)) protected him from liability. On Cisneros's motion to remand, the federal court held that, as an affirmative defense, CDA 230 did not provide proper grounds for removal of the action to federal court when the parties were both from Texas and the plaintiff had asserted only state law claims for relief. The court therefore remanded the case to state court, and the parties then reportedly settled the case for $150,000. Sanchez issued a full apology and retraction.

On December 22, 2006, John Oliphant sent a mass email and posted on his MySpace page an article entitled "the Worst Party Guest Ever," in which he made insulting remarks about Ron Coons. According to court filings, Oliphant accused Coons of drugging women at a party and included a picture of Coons and a caption saying "He's a pervert Dude."

On January 4, 2007, Coons's lawyer sent Oliphant a letter threatening legal action if he did not publish a retraction and apology. (Please see the CMLP Database entry on the related letter for more information.)

Coons sued Oliphant for defamation in Tennessee state court on January 31, 2007. Oliphant answered in March 2007 asserting, among other things, that his statements were true.

The case is pending.

Two female Yale Law School students, captioned as Does I & II, sued Anthony Ciolli, the former chief education director of the popular law school admissions forum, AutoAdmit, and a host of pseudonymous users of the forum over vulgar, sexually explicit, and threatening comments posted about them on the forum. In addition to making numerous derogatory and sexually explicit statements about the two students, pseudonymous users of the site created another website, t14talent: The Most Appealing Women @ Top Law Schools (now defunct), and posted photographs of one of the students without her permission. (Although the complaint is not entirely clear on this point, the student claims copyright ownership in these photographs in addition to publicity rights, indicating that she may have been the creator of the photos and posted them online.)

According to the complaint, the two students complained about the forum postings to the AutoAdmit staff, but AutoAdmit did not remove the material. Ciolli disputes that he had any authority to remove the offensive postings.

In June 2007, the two students sued in federal court in Connecticut, asserting claims of defamation, copyright infringement, unauthorized appropriation of name and likeness, unreasonable publicity given to another's life, false light invasion of privacy, and other torts. Soon after filing, they moved to proceed anonymously, and the court granted that request.

In August 2007, the plaintiffs moved to modify the court's scheduling order in order to give them time to investigate the identity of the pseudonymous defendants and to amend their complaint. The court granted the initial request and two subsequent requests for thirty-day extensions, the last of which was requested on October 4. According to a tip posted on David Lat's Above the Law blog, it is unlikely that the court will grant a fourth extension, so an amended complaint may be forthcoming relatively soon.

Update:

11/8/07 - Plaintiffs filed an amended complaint dropping Ciolli from the lawsuit.

1/24/08 - Plaintiffs filed a motion for expedited discovery seeking to uncover the identities of the pseudonymous posters listed in the complaint.

1/29/08 - Court granted motion for expedited discovery.

2/22/08 - Pseudonymous defendant "AK47" moved to quash the subpoena directed at AT&T requesting information about his identity.

3/2/08 - Plaintiffs deposed former defendant Anthony Ciolli, at which Ciolli acknowledged that his AOL Instant Messenger username is "AnthonyCiolli."

3/4/08 - Former defendant Anthony Ciolli filed a lawsuit in Pennsylvania state court against the plaintiffs, their lawyers, and other defendants for wrongful initiation of civil proceedings, abuse of process, libel, slander, false light invasion of privacy, tortious interference with contract, and unauthorized use of name or likeness.

3/18/08 - Plaintiffs issued a subpoena to AOL seeking the names of "all persons who have registered or used" the username "AnthonyCiolli" and related information about the account, including "other user names and login IDs and/or Internet Protocol ("IP") addresses associated with the IM username 'AnthonyCiolli.'"

4/7/08 - Ciolli filed a motion to quash the AOL subpoena in federal district court in Virginia.

06/13/08 - The court denied AK47's motion to quash the subpoena seeking his identity from AT&T.

08/05/08 - Plaintiffs filed an amended complaint that names Mathew C. Ryan (previously known by username ":D") as a defendant. Legal Satyricon "can confirm with 100% certainty that the guy in the complaint is neither an attorney nor a law professor."

8/13/08 - Defendant "a horse walks into a bar", a.k.a Ryan Mariner filed a motion to dismiss, arguing that the plaintiff's have stated no cause of action against him and that they have failed to prosecute the action against him despite offers to accept service made through counsel. 

9/10/08 - Plaintiffs filed papers in opposition to Mariner's motion to dismiss.

9/19/08 - The United States District Court for the Western District of Virginia held that the plaintiffs' subpoena to AOL seeking the names of "all persons who have registered or used" the username "AnthonyCiolli" was facially invalid because it was issued from the wrong court.  The court determined that it should have issued from the United States District Court for the Eastern District of Virginia. Because the court concluded that it lacked jurisdiction, it did not reach the merits of Anthony Ciolli's motion to quash. 

10/26/08 - Plaintiffs filed a notice of settlement and request for dismissal against defendant "Whamo."

3/31/09 - Pennsylvania federal court largely denied the defendants' motion to dismiss Anthony Ciolli's complaint in Ciolli v. Iravani, but gave defendants leave to renew their motion after jurisdictional discovery.  The court also struck certain allegations from the complaint relating to settlement negotiations in the Connecticut lawsuit. 

4/30/09 - Connecticut federal court denies Matthew Ryan's motion to dismiss. 

5/21/09 - Matthew Ryan files his answer to the second amended complaint in Connecticut federal court.

9/29/09 - Plaintiffs filed a Notice of Settlement and Request for Dismissal of Action Against Defendant ":D", A.K.A. Matthew C. Ryan

10/16/09 - Plaintiffs filed a Notice of Voluntary Dismissal of Action Against Remaining Defendants Without Prejudice by Doe 1, Doe 2

10/23/09 - Court dismissed case

In December 2005, high school student Justin Layshock posted a fake MySpace page parodying his high school principal, Eric Trosch. Layshock posted a picture of Trosch and answered the questions asked by the site's profile template by riffing on the word "big" because Trosch is apparently a large man. Answers included phrases like "big faggot," "big hard ass," and "big dick." To the question, "what did you do on your last birthday," Layshock answered "too drunk to remember." Layshock created the profile from a computer at his grandmother's home.

School officials discovered the profile, and the school distict suspended Layshock for 10 days, ordered him to finish high school in an "Alternative Education Program," and forbid him from attending graduation. The school backtracked on part of this disciplinary action, however, and Layschock was allowed to return to regular classes. He graduated in Spring 2006.

Layshock and his parents sued the school district and various school officials in federal district court in Pennsylvania, claiming (1) that the school's punishment violated his First Amendment rights, (2) that the school's policies and rules were vague and/or overbroad in violation of the First Amendment; and (3) that the school's punishment violated Layshock's parents' Fourteenth Amendment rights to raise, nurture, discipline and educate him.

In July 2007, the district court granted summary judgment to Layshock on his claim that that the school's punishment violated his First Amendment rights and ordered a trial to determine whether he is entitled to compensatory damages for that violation. The court granted summary judgment to the defendants on all other counts.

Eric Trosch subsequently sued Layshock and three other students in Pennsylvania state court for defamation based on this and two other fake MySpace profiles. (Please see the related CMLP Database entry for more information).

Update:

11/13/2007 - Parties jointly moved for final judgment and to stipulate damages of $10,000 to the Layshocks contingent on appeal.

11/14/2007 - Judge entered the judgment.

11/21/2007 - Hermitage School District filed notification of its intent to appeal.

11/30/2007 - Layshocks filed notification of their intent to cross appeal.

3/27/2008 - Hermitage School District filed its appellate brief.

5/22/2008 - Layshocks filed their appellate brief.

12/10/2008 - Case was argued before the Third Circuit Court of Appeals.   

02/04/2010 - The Third Circuit upheld the lower court's rulings.

04/09/2010 - The Third Circuit granted the Hermitage School District's petition for an en banc rehearing on whether it violated Layshock's First Amendment rights.

06/03/2010 - Case was argued en banc before the Third Circuit Court of Appeals

06/13/2011 - The Third Circuit affirmed the lower court's grant of summary judgment to Layshock on his First Amendment claim. The Third Circuit noted that the School District did not, on appeal, challenge the district court's finding that there was no evidence of a "substantial disruption of the school environment," and further held that accessing the school's website for the principal's photo was insufficient to forge a nexus between the Hermitage School District and the profile Layshock created. The Court also found that while Layshock's speech reached much of the student body, it did not reach within the "schoolhouse gate."

10/14/2011- The Hermitage School District petitioned for a Writ of Certiorari to the Supreme Court of the United States on Layshock' First Amendment claim. The School District filed a single petition with Blue Mountain School District.

01/17/2012 - The Supreme Court denied Hermitage School District's petition for a Writ of Certiorari.

On his blog, "Miscellaneous Debris," Jerry Baker accused Health Solutions Network, LLC, of being behind spam emails coming from RXCart.org. Baker explained how he supposedly traced the emails back to Health Solutions and disclosed the name and phone number of Health Solution's founder, Ralph Penton. Penton maintained that he received harassing and threatening phone calls as a result.

In January 2007, Health Solutions and Penton sued Baker in federal district court in Pennsylvania for defamation, trademark infringement and dilution, tortious interference with contracts, and restraint of trade or commerce in violation of 15 U.S.C. § 1. The complaint did not make clear exactly how Baker's statements constituted trademark infringement and dilution, or how (or with whom) he entered into a conspiracy in restraint of trade.

In June 2007, Health Solutions and Penton voluntarily dismissed the lawsuit with prejudice. The "with prejudice" designation leads us to believe that the case was settled, but the record is unclear.

Anthony DiMeo III, blueberry farm heir and operator of publicity firm Renamity, threw a New Years Eve party on December 31, 2005 that did not end well -- the district court judge referred to it as "the ... party from hell." Tucker Max, Internet celebrity and operator of www.tuckermax.com, hosts a forum on the aforementioned Web site in which anonymous posters ridiculed both the party and DiMeo himself. DiMeo sued Max for defamation in the Court of Common Pleas of Philadelphia County, and Max then removed the case to the U.S. District Court for the Eastern District of Pennsylvania. See DiMeo v. Max, 433 F.Supp.2d 523, 533 (E.D. Pa. 2006). DiMeo added claims for violations of telecommunications-harassment statute 47 U.S.C. § 223(a)(1)(c) and for punitive damages, though the district court dismissed both with little discussion (the former primarily because it was based on a criminal statute that offered no private cause of action, and the latter because it was a legal remedy rather than a claim). The court similarly dismissed DiMeo's motion to amend his complaint, which the court saw as a futile attempt to repair the 223(a)(1)(c) claim.

Max filed a motion to dismiss the case for failure to state a claim upon which relief can be granted, which the court granted with prejudice. Following a typical analysis of a case governed by Section 230 of the Communications Decency Act (47 U.S.C. § 230), the court held that Section 230 barred DiMeo's defamation claim because: a.) Max, as the operator of the Web site and forum, was a provider of an interactive computer service; b.) DiMeo's claims treated Max as a publisher or speaker of information; and c.) the forum posts were information provided by a third-party content provider. The court noted that DiMeo did not allege that Max was the author of the disputed content, and thus it necessarily was third-party content. Because providers may not be treated as the publishers of third-party content under Section 230, dismissal was appropriate. DiMeo appealed the dismissal of the defamation claim and the dismissal of the motion to amend to the U.S. Court of Appeals for the Third Circuit.

Update:

On Sept. 19, 2007, the U.S. Court of Appeals for the Third Circuit affirmed the district court's decision. In a short opinion marked "not precedential," the Third Circuit followed the district court's reasoning in finding TuckerMax.com to be an interactive computer service that was protected from liability for third-party speech under Section 230. As of Sept. 25, 2007, the case has not been appealed.