Internet Free Speech
Cases Litigated By Public Citizen's Litigation Group
Right to Speak Anonymously
Right to Read Anonymously
Right to Identify Company Criticized by Name
Liability of Gripe Site Operator for Violations by Message Board Speakers
Use of Brand Name in Domain Names and Metatags
In re Petition of MP
The owner of a country club located in Del Mar, California (near San Diego), filed anonymously a petition for pre-litigation discovery in state court in Ft. Worth, Texas, seeking to identify the anonymous blogger and several anonymous commenters who posted statements on the Del Mar Country Club Sucks blog. She claimed that she was defamed by comments that complained about her management of the club as well as sneering at her for gaining control of the club by marrying its very wealthy owner. The blogger moved to quash and Public Citizen and the ACLU of Texas filed a brief as amicus curiae supporting the motion to quash, arguing that the petitioner had not justified filing suit in Texas over comments on a blog about a California country club, and that in any event the country club owner had not produced sufficient evidence to overcome the right to speak anonymously. After allowing the petitioner to amend her petition to meet the standard, the trial judge quashed the subpoena.
Alkateeb v. Does 1-15
An Arizona couple brought suit in federal court in New York against numerous anonymous persons who posted negative comments about them on a bulletin board established by a wedding shopping company, and subpoenaed their identities. Several Does filed a motion to quash the subpoena, and Public Citizen filed an amicus brief supporting this motion and urging that none of the other Does be identified until plaintiffs made a stronger showing to support their right to bring this case. Public Citizen argued that, although many of the posts were mean, they were not defamatory, and there was no evidence of falsity. Moreover, there was no showing that the case was properly filed either in federal court or in New York.
Cahill v. Doe
Member of the Smyrna, Delaware town council sued four anonymous posters to a community blog sponsored by a local newspaper, who posted denigrating material. One of the four Does moved to quash a subpoena for identifynig information, but the trial judge enforced the subpoena, holding that a defendant must be identified so long as the plaintiff hgas sued in good faith. Public Citizen filed an amicus brief in the Delaware Supreme Court arguing for the application of the Dendrite analysis, and contending that this standard was not met because, especially given the fact that the plaintiff was a public official, the comments over which plaintiff had sued were not defamatory (because they were opinion), and in any event the plaintiff had not shown falsity.
In re Cokinos
After his re-election defeat, a incumbent county commissioner sued in Texas court to identify a anonymous constituent who sent several emails denouncing him and several other incumbents for allegedly wasteful public expenditures, claiming that the emails were libelous and that the failure to identify the sender violated Texas campaign finance laws. Public Citizen represented the poster in a successful motion to quash the subpoena, arguing that Texas election law did not require identification of such low-cost citizen communications, and that the emails, though they contained strong accusations, either were protected opinion or had not been shown to be false.
Dendrite International v. Does 1 through 14
Company providing and servicing software for the pharmaceutical industry sued four anonymous posters, two of them current or former employees, alleging defamation, disclosure of trade secrets, and breach of employment contract. Public Citizen filed an amicus brief in support of opposition by two posters to subpoena to Yahoo! After Court entered order protecting these two posters, the company appealed denial of subpoena regarding one of the posters.
- Decision of Superior Court of New Jersey, Chancery Division, November 23, 2000
- Brief on Appeal of Amici Curiae Public Citizen and the ACLU of New Jersey -- March 29, 2001
- Decision of the Appellate Division of the New Jersey Superior Court -- July 11, 2001 -- PDF
Digital Broadband Networks, Inc. v. Does
A Malayasian company and its president sued seven Internet posters in New Jersey state court alleging that they defamed the plaintiffs and conspired to drive down the stock price. However, in granting an ex parte motion for leave to take discovery, the trial judge disregarded the applicable appellate decision in Dendrite v. Doe. One of the Doe defendants seeks the right to an immediate appeal of the order allowing discovery of his identity.
Donato v. Moldow
Brief as amicus curiae argues that even if anonymous Internet speakers do not appear in court through counsel to object to a motion by public officials seeking to identify them, the court has an independent duty to ensure that the plaintiff has a strong enough case to justify overriding their free speech rights. Brief also argues that citizen who runs web site cannot be held liable for allegedly defamatory or harassing messages posted by other persons on his web site's message board.
Equidyne Corp. v. Doe
Equidyne Corporation sued several anonymous posters alleging that, in violation of their employment agreements, they posted confidential inside information on the Raging Bull and Yahoo! message boards about Equidyne. After one of the Does, Aeschylus_2000, moved to quash arguing that he was not an employee, Equidyne changed theories and argued that, by urging viewers to give their proxies to a recently announced slate of challengers for the company's board, Aeschylus has violated the SEC's proxy rules both by not disclosing his identity, his shareholdings, and similar data, and by supporting a slate that has itself not complied with the disclosure rules. The district judge agreed to apply a standard similar to the one adopted by the New Jersey courts in Dendrite v. Doe, but found that Equidyne had shown a prima facie case under federal securities laws, and that the prima facie case did not include a showing of actual damages. Our amicus brief urges the Third Circuit to adopt New Jersey's Dendrite standard, to require trial judges to observe the Dendrite procedures more scrupulously, and to send the case back for more careful consideration of whether disclosure is proper under that rule
Hollis-Eden Pharmaceuticals, Inc. v. Does
Pharmaceutical company sued several anonymous message board posters who expressed opinions critical of its corporate leadership and marketing efforts. Public Citizen has moved to quash the subpoena and to dismiss the suit as one designed to suppress free speech.
- Memorandum in Support of Motion to Strike
- Reply Memorandum in Support of Motion to Strike
- Court's Ruling on Special Motion to Strike and Motion to Quash Subpoena -- March 20, 2001 (PDF File)
Hritz v. Doe
First Amendment defense against attempt by company official to identify an anonymous Message Board critic
- Brief defending the removal of a pre-litigation petition for discovery of the identity of an anonymous speaker.
iXL Enterprises v. Doe
Suit by company alleging that one of its employees was violating his obligations by posting comments about the company on a Yahoo! message board; because plaintiff has been told that defendant is not an employee, motion to quash alleges that this is a deliberate effort to chill free speech
Thomas & Betts Corporation v. Does 1 through 50
WRNN-TV Associates v. Doe
This case was settled and the following Memorandum was never filed. The Memorandum is provided for reference purposes. The settlement agreement is posted below.
Forensic Advisors, Inc. v. Matrixx Initiatives, Inc.
Matrixx Initiatives sued numerous anonymous posters over comments they made on message boards. In a purported attempt to learn their identities, Matrixx subpoenaed a stock newsletter called the Eyeshade Report that had published an unfavorable article on the company. Matrixx sought the names of every person who read the report, every source of information for the report, and all notes and drafts. The company did not identify any connection beween the Internet posters and the Eyeshade Report. It only speculated that some readers of the publication, or sources, may have been the Internet posters in question. Public Citizen, joined by six other groups---the American Civil Liberties Union of Maryland, the American Booksellers Foundation for Free Expression, the American Civil Liberties Union of the National Capital Area, the Association of American Publishers, the Electronic Frontier Foundation, the Electronic Privacy Information Center, the Freedom to Read Foundation, Inc., and Reporters Committee for Freedom of the Press---filed an amicus brief arguing that the Maryland news media privilege prevented disclosure of sources and information collected in the course of reporting, and that the First Amendment right to read anonymously barred disclosure of a list of readers and subscribers.
Alitalia v. Porta
Trademark suit in federal court in New York by airline seeking to suppress a web site posted atwww.alitaliasucks.comby an unhappy customer whose luggage was lost. Company has moved to for a preliminary injunction claiming that the domain name violates the new anti-cybersquatting law; defendant argues that this law was not violated and that, in any event, the First Amendment protects his speech.
Alvis Coating v. Townsend
Public Citizen is defending Alan and Linda Townsend from Alvis, Inc.'s attempt to shut down a website that the Townsends created to criticize the company. After several months of attempting to work with Alvis and one of its dealers to resolve problems with the application of Alvis Spray on Siding to their home, the Townsends began publishing a website to voice their frustration and provide a forum for others to do so. Alvis responding by bringing numerous frivolous claims against the Townsends in what amounts to a classic Strategic Lawsuit Against Public Participation or "SLAPP suit."
- Opposition to Alvis's motion for preliminary injunction (December 16, 2004)
- Reply to Alvis's opposition to motion for summary judgment (December 13, 2004)
Bosley v. Kremer
California company brought suit in Illinois against a California man who runs web sites devoted to the alleged misconduct of the company, as reported in various media sources and detailed in law enforcement investigations. Public Citizen moved to dismiss, arguing that there was no basis for suing in Illinois, that in any event the California anti-SLAPP statute comes to Illinois with the case, and that the defendant is entitled to use the company's name in the domain names for his web sites.
Appellate Brief - October 7, 2004
District Court Ruling - May 4, 2004
- Memorandum in Support of Defendant Kremer's Motions to Dismiss - August 21, 2001
Citadel Security Software v John Does 1-5
Citadel Security Software's management dumped nearly 800,000 shares of company stock before the price collapsed. When anonymous posters on Yahoo! message boards complained about these events, the company sued five posters for defamation and business disparagement and subpoenaed Yahoo! to identify them. We have moved to quash the subpoena because the First Amendment protects the right to engage in lawful, anonymous speech, and there is no allegation or evidence that defendants' speech was unlawful. We also argue that our client, a Minnesotan, was improperly sued in Texas.
Circuit City Stores, Inc. v. Steven C. Shane
Coca Cola Company et al v. Purdy
Anti-abortion activist registered domain names using several different companies' trademarks as a way of drawing public attention to websites denouncing abortion through graphic photographs of dismembered fetuses. After he was sued, he added a small amount of content related to the companies. Public Citizen argued that, because his websites were not "about" the companies whose trademarks he was using, his use of the trademarks in the domain names could not be justified. We argued, however, that if Purdy developed content that was specific to the companies and proposed to use domain names that fairly described the contents of such websites, an injunction forbidding any domain name that did not use a critical word within the domain name could become overbroad.
Crown Pontiac v. Ballock
In this cyberspeech case, Public Citizen defended Thomas Ballock's right to criticize the Crown Pontiac car dealership. Mr. Ballock purchased a defective car from Crown and was very unhappy with Crown's response to his complaints, so he posted a gripe site on the Internet in which he used Crown's name in the domain name and text. Mr. Ballock's site clearly stated that it was not Crown's official website, but rather a site critical of Crown. Crown sued Mr. Ballock under trademark and cybersquatting laws, but was eventually forced to drop its lawsuit and pay Mr. Ballock more than $6000 for the damages he incurred from Crown's attempt to enjoin his website.
Falwell v. Cohn
Brief filed in Uniform Dispute Resolution Procedure explaining why critic of Jerry Falwell is entitled to use Falwell's full name as the domain name for a web site parodying Falwell for his comments about the reasons why the September 11 bombing happened and his penchant of citing the Bible at his political opponents.
Nissan Motor Co. v. Nissan Computer Corp.
A federal district judge decided that Uzi Nissan did not infringe the trademark of the Nissan auto companies by creating a web site for the Nissan Computer Company at the addresses nissan.com and nissan.net, but that the use of the domain name for ads for automaobile products was infringement, and also that use of the domain name for advertising and for ciriticism of Nissan Motor Co. diluted Nissan's trademark. As a remedy, the judge allowed Uzi Nissan to keep his domain names, but forbade him from including any advertising AND from including anything critical of Nissan Motor. Public Citizen argued, in a brief filed with the Court of Appeals for the Ninth Circuit, that once advertising was forbidden on the website it became noncommercial and hence beyond the reach of teh federal trademark laws, that, in any event, neither the First Amendment nor the trademark laws would tolerate an injunction barring use of the Nissan name in a domain name for a website that criticizes Nissan Motor.
- Ninth Circuit Opinion - August 6, 2004
- Amicus Brief on Dilution Appeal - August 2003
- Unseal Motion - August 2003
- Amicus Brief- March 2003
Servicemaster, et al. v. Virga
- Defendant's Memorandum in Opposition to the Motion for a Preliminary Injunction and in Support of her Motion to Dismiss
- Reply brief, February 18, 2000
Taubman v. Mishkoff
A Dallas resident created a web site praising a local shopping mall, the Shops at Willow Bend, using the domain name shopsatwillowbend.com, and was sued for his trouble by the mall developer, the Taubman Company, who claimed that the web site and domain name violated its trademark in the mall's name. When the web operator created a new web site called using names like taubmansucks.com and shopsatwillowbendsucks.com to protest the wasteful litigation against him, the developer sought a preliminary injunction asking that the new sites be stricken as well.
- Amicus brief of Public Citizen, 11/12/01
Argues that neither the domain name nor the web site violates Taubman's trademark rights, and in any event the First Amendment protects the web site operator's right to use these names to attack Taubman's conduct
- Stay Memorandum, 1/15/02
Argues that district court's preliminary injunction against the Taubmansucks web site should be stayed because it is a prior restraint on defendant's non-commercial criticism of the plaintiff, its lawyers, and the trial judge's decisions, and because the trademark laws do not regulate the use of a trademarked name to identify the subject of Internet criticism
- Decision granting the stay sought in the foregoing brief, 3/11/02
- Memorandum in Support of Defendant's Motion for Summary Judgment, 3/15/02
Motion for summary judgment on all claims against both the "gripe" site and the underlying fan site for a Texas shopping mall.
TMI, Inc. v. Maxwell
Northwest Airlines, Inc. v. Teamsters Local 2000, et al.
Pacifica Web Sites -
Pacifica Foundation threatened trademark litigation against several groups that used its name in domain names for web sites that criticized actions of foundation leadership in suppressing dissent on its radio stations, but withdrew the threat in the face of Public Citizen's explanations of why such law suits could not succeed.
Paccar v. Telescan - Trademark suit by manufacturer against retailer who sells manufacturer's goods on its web site.
Amicus Curiae Brief - argues that because the brand names properly describe the subject of the retailer's web pages, they may fairly be used in domain names and meta tags for those web pages.
The RIAA served two subpoenas on Verizon, seeking to identify two subscribers who allegedly offered hundreds of copyrighted songs available for download through the KaZaA peer-to-peer file sharing system. RIAA invoked a provision of the Digital Millenium Copyright Act that authorizes such subpoenas. RIAA objected, and appealed from an order enforcing the subpoenas on the ground that the DMCA does not allow subpoenas where the copyrighted files remain on the subscriber's own computers, and that the law was unconstitutional because it permitted subpoenas to be issued by a court's clerk rather than requiring the copyright owner to file a lawsuit against the subscriber and seek discovery under John Doe procedures.
Public Citizen submitted an amicus curiae brief arguing that the statute incorporates the Federal Rules of Civil Procedure, which have, in turn, been construed to require notice and an opportunity to argue that the right of anonymous speech outweighs the right to identify alleged wrongdoers in particular cases. Because the statute indirectly requires notice, and because notice was in fact given and on the facts of the case the balancing test does not justify withholding the identities, Public Citizen argued that the decision should be affirmed.
BMG Music v. Does (Eastern District of Pennsylvania)
Following the D.C. Court of Appeals' ruling in RIAA v. Verizon Internet Services, a group of music companies filed a series of lawsuits, each of which accuses between 7 and 300 anonymous defendants of illegal file-sharing. Public Citizen, along with the Electronic Frontier Foundation and the American Civil Liberties Union, is seeking to force the music companies to give the unnamed defendants the same Due Process and First Amendment rights as any other defendant. Specifically, Public Citizen has asked the courts to require proof of copyright violations before ordering each defendant's Internet Service Provider to reveal the defendant's identity, and to force the music companies to file separate lawsuits where each defendant resides.
Interscope Records v. Does (Middle District of Florida)
Motown v. Does (Northern District of Georgia)
UMG Recordings Inc. v. Does (District of Columbia)
Lamparello v. Falwell
Christopher Lamparello created a web site to criticize Jerry Falwell's views on homosexuality, using the domain name fallwell.com. Falwell brought a proceeding to transfer the domain name in the UDRP, and after a UDRP panel ruled in Falwell's favor Lamparello sued in federal court in Virginia to keep his domain name, arguing that his site was noncommercial and that he was entitled to use Falwell's name -- or, in this case, a play on Falwell's name -- for a web site about Falwell. Noting that, for a period of time, Lamparello's web site had praised a book about how bibilcal verses said to condemn homosexuality should be interpreted, amd that the site had linked to Amazon.com where the book could be bought, the trial judge decided that the site was sufficiently commercial to be subject to the trademark laws, and also that an adverse impact on Falwell's business wouild be enough in any event. The case is now on appeal to the Fourth Circuit. The briefs also discuss the statute of limitations for trademark claims, as well as the standards for damages and attorney fees, which the district court declined to impose.
Brief for Appellant - November 17, 2004
Reply - June 4, 2004
Memorandum in Opposition - June 4, 2004
Summary Judgment Memorandum - May 24, 2004
SIU v. Swanson
Plaintiff, the Seafarers International Union, and its lawyers sought a temporary injunction preventing Robert Swanson from criticizing either the Union or the Paul McAndrew Law Firm on his website. The District Court for Clinton County, Iowa denied the injunction as to the Union, but granted it on behalf of the law firm. Public Citizen moved for interlocutory review of the injunction, which constitutes an unconstitutional prior restraint granted on behalf of a non-party to the lawsuit.