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Jerry Falwell’s Second Attempt to Shut Down Parody Web Site Is Misguided

Sept. 9, 2002

Jerry Falwell’s Second Attempt to Shut Down Parody Web Site Is Misguided

Dismiss Falwell’s Lawsuit Against Internet Critic, Public Citizen Tells Virginia Court

WASHINGTON, D.C. – A lawsuit Jerry Falwell filed in Virginia against an Internet critic should be dismissed because it was filed in the wrong state and has no merit, Public Citizen told a court today. It is Falwell’s second legal attempt to shut down the critic’s Web site, which parodies Falwell and his statements about the responsibility of gays for the terrorist attacks of Sept. 11, among other things.

The site, at www.jerryfalwell.com and www.jerryfallwell.com, pokes fun at Falwell’s advocacy of Biblical literalism and his penchant for giving advice. Another page purports to discover a biblical code showing that Falwell is a false prophet.

After the site went up last year, Falwell’s attorney sent the site’s creator, Illinois resident Gary Cohn, a letter demanding that Cohn turn over the domain names to Falwell. Cohn refused. Falwell then filed a complaint against Cohn with the World Intellectual Property Organization (WIPO), alleging trademark violations, even though Falwell had never registered his name as a trademark.

The WIPO rejected Falwell’s claims, so on June 20, Falwell sued Cohn in the U.S. District Court’s Western District of Virginia. He alleged trademark violations and libel.

In a motion filed with the court today, Public Citizen, which along with the ACLU of Virginia is representing Cohn, asked the court to dismiss the case for a variety of reasons.

The primary reason is that the court lacks jurisdiction, and hearing the case in Virginia would have serious First Amendment implications for Internet users everywhere.

Cohn lives in Illinois, is not licensed to do business in Virginia, doesn’t have an office or employees there, and owns no property in Virginia. Cohn’s message in no way targets Virginia residents. Registration of domain names with a Virginia company also is insufficient to establish jurisdiction, and anyway, the names have since been moved, Public Citizen argued.

“The only reason Falwell filed suit in Virginia is because he lives there,” said Paul Alan Levy, the attorney with Public Citizen who is representing Cohn. “Yet Falwell is hauling Cohn to a court hundreds of miles from Cohn’s home. If the court were to hear this case, it would set a dangerous precedent. People who type their thoughts about public figures on a computer would think twice if they knew they would have to defend themselves at any spot on the globe where the figure happened to be. That would seriously hamper people’s First Amendment rights.”

If Falwell were to file suit anywhere, it should be Illinois, Levy said. Still, the suit would fail on other grounds.

Cohn is not violating trademark law because his Web site sells nothing, advertises no products or services, and makes no money, Levy told the court. Also, Falwell has not registered his name as a trademark.

Finally, Falwell’s libel claim stemming from the statement that Falwell is a false prophet has no merit because it is an opinion, not a statement of fact, and therefore can’t give rise to a libel suit. Also, it would be impossible to prove whether Falwell is a false prophet, Levy argued.

Public Citizen is representing Cohn because it has a history of championing First Amendment rights on the Internet. For more information about Public Citizen’s work on Internet free speech issues, click here.To view a copy of the brief filed today, click here.

Rebecca Glenberg of the ACLU of Virginia is also representing Cohn in the case.