Newsroom Law Blog : Media & Communications Lawyer & Attorney : Brooks Pierce Law Firm : Media Law, Libel Defense, FCC

A New York trial judge ruled recently that cover model Liskula Cohen was entitled to learn the identity of the anonymous author of the short-lived "Skanks in NYC" blog.  Cohen claimed that the blogger had defamed her in August 2008 when the blogger wrote: "I would have to say that the first place award for 'Skankiest in NYC' would have to go to Liskula Gentile Cohen."   The blogger later called Cohen a "psychotic, lying, whoring . . . skank."

The blog was hosted by Google, so in January, Cohen asked a judge to order Google to disclose the blogger's identity.  A lawyer appeared for the blogger, identified in court documents as "Anonymous Blogger," and argued that the posts were not defamatory and therefore disclosure was not warranted.

In particular, the attorney asserted that the statements were simply "non-actionable opinion and/or hyperbole" that no reader would interpret to be statements of fact.  This is especially true, the blogger's attorney argued, in the context of the blogosphere where "loose hyperbolic" speech is ever-present.

The judge disagreed, holding that Cohen had satisfied her burden of showing a meritorious claim, especially because the speech at issue was linked to several "sexually provocative" pictures of Cohen.  The comments, when read together with the pictures, "convey 'facts' that are capable of being proven true or false."  Specifically, the blog posts can reasonably be read to say that Cohen was sexually promiscuous, which can be defamatory if it is false.

After the ruling, the blogger's identity was revealed in media reports to be a woman angry about things Cohen allegedly said to the woman's boyfriend.  According to the New York Post, Cohen initially filed a $3 million defamation suit against the woman, but quickly decided to drop it.

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In a closely watched case, a Leon County, Florida trial court judge held last week that records concerning an NCAA investigation into possible academic cheating by athletes at Florida State University were public records subject to disclosure.  A coalition of media organizations had filed suit under Florida's public records law, seeking the release of transcripts from a 2008 NCAA hearing in which school and NCAA officials discussed the allegations of cheating.

The factual wrinkle that made this case unique was that University officials never actually received a paper copy of the documents from the NCAA.  Instead, the NCAA provided the school with secure access to a web site managed by the NCAA where the transcripts and other documents could be read -- but not downloaded or printed.  Because of this, the NCAA, which opposed making the records public, argued that the state never possessed the records, and therefore they were not subject to the public records law.

Media attorneys and attorneys for the state, which supported the release of the documents, argued that accepting the NCAA's interpretation of the law would allow any state contractor to utilize a similar view-only web site to circumvent the clear intent of the law.

According to the Orlando Sentinel, the judge agreed that the documents were public records.  He said: "The NCAA's position is clearly contrary to the broad interpretation given to the definition of public records in Florida courts and legislative language."  Once University officials looked at the report online, it is as if they had received a paper copy, he said.

The NCAA has indicated that it will appeal the ruling and seek a stay of the judge's order.  The private organization is claiming that subjecting it to state public records laws would violate its First Amendment right of association because confidential informants might be less willing to report possible violations by NCAA schools if they fear public disclosure.

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The District of Columbia Court of Appeals, the highest court for cases arising in the District of Columbia, continued the recent trend of requiring defamation plaintiffs to meet an elevated legal standard when they serve a subpoena seeking the identity of an anonymous speaker.  Like Maryland's highest court, the District of Columbia appellate court held that a plaintiff must proffer sufficient evidence to survive summary judgment before a motion to compel will be granted.

The D.C. case, Solers, Inc. v. John Doe, was brought by Solers, a software company, alleging that Doe had defamed the company and tortiously interfered with prospective business opportunities by submitting an anonymous complaint against Solers to a software industry group.  In the anonymous complaint submitted to the Software & Information Industry Association, Doe alleged that Solers was using pirated software.  SIIA investigated the charge but ultimately took no legal action against the company.

Solers filed suit against Doe and served a subpoena on the SIAA seeking his identity.  SIAA moved to quash the subpoena, and a D.C. superior court ultimately quashed the subpoena, holding that the complaint would not survive a motion to dismiss and therefore Doe's rights outweighed those of the company.

The Court of Appeals, like the Maryland Court of Appeals, engaged in an exhaustive review of the various standards that have been applied to defamation plaintiffs seeking the identity of an anonymous commenter.  As we have reported throughout the year, the clear trend is to protect anonymous speakers unless the plaintiff meets some elevated standard. 

The D.C. court adopted the test outlined in Doe v. Cahill, 884 A.2d 451 (Del. 2005), with some slight revisions.  The D.C. court held that a court faced with a subpoena seeking the identity of an anonymous speaker must:

(1) ensure that the plaintiff has adequately pleaded the elements of the defamation claim, (2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served, (3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash, (4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and (5) determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.

The court was careful to emphasize the "within its control" language in the fourth element, pointing out that the plaintiff should not be required to satisfy elements of the claim "dependent upon knowing the identity of the anonymous speaker."  In contrast to the Maryland Court of Appeals, however, the D.C. court did not require any First Amendment balancing test as a final step to the analysis, judging that to be unnecessary in light of the first five steps.

Applying this test, the court remanded the case to allow Solers an opportunity to present additional evidence supporting its claim of defamation.

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As reported by our colleague Mack Sperling in his North Carolina Business Litigation Report, the Fourth Circuit recently affirmed a trial court order to disclose the identity of an anonymous speaker who had sent a letter, through a law firm, to Jos. A. Banks Clothiers accusing the company of accounting fraud.

Read Mack's post for all the details, though it is worth noting that sitting by designation on the panel was retired Supreme Court Justice Sandra Day O'Connor.

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The Twitter phenomena has seemingly gone viral this summer. What started out as a quirky way for people to send brief (140 characters or fewer!!) updates on their daily activities, thoughts, or opinions, is now a major source of breaking news. From the streets of Iran to the Pittsburgh Steelers’ practice field, correspondents of all stripes are Tweeting first, blogging second, and (maybe) writing a story for the crusty old newspaper third.

It should come as no surprise, then, that we are just now seeing our first claims for Twitter defamation.  As has been widely discussed, a Chicago area real estate company has sued a former tenant for defamation based on a Tweet (that is, a message sent via Twitter) she sent to her 20 followers. The Tweet said “You should just come anyway. Who said sleeping in a moldy apartment is bad for you? Horizon Realty thinks it’s okay.” Horizon is seeking $50,000 in damages based on harm to the company’s business reputation.

While commentary on the suit has focused on the company’s perhaps overly litigious approach to what was at most a very minor annoyance, the suit does raise some interesting legal issues.

First, the fact that the Tweet only went to 20 readers may be legally significant to the issue of how much Horizon’s reputation was really harmed, but it does not make the words any less defamatory. All Horizon would need to show is that the post went to even one third party.

The harder question is whether the Tweet was, in fact, defamatory. Does the Tweet accuse Horizon of maintaining moldy apartments as a matter of fact, or is it simply opinion or commentary not intended to be interpreted as a statement of fact? The former is actionable (unless it is true, of course), the latter is probably not.  The ultimate answer to that question is less important, for our purposes, than the fact that it is a close legal question that is not going to be dismissed easily or cheaply.

While this lawsuit raises more chuckles than anything else, it should give pause to reporters, editors, and publishers of all varieties. Twitter is meant to be an intimate kind of affair—readers getting an insider’s view of someone’s day-to-day existence, for better or for worse. This intimacy, and the short-hand nature of the medium itself, breeds an informality that can be very dangerous for reporters and others with a lot of subscribers and a high profile. When your White House correspondent Tweets about a breaking news event, thousands of readers may be seeing that message, a message that was not edited, not vetted, and probably not even seen by anyone other than the reporter before it went out. That problem is exacerbated by the fact that many blogs and other news organizations now pick up and re-publish Tweets from high-profile reporters (and, yes, politicians).

Again, that level of intimacy and immediacy is what makes Twitter popular, but it should give newsrooms heartburn as well. The bottom line is that you can easily defame someone in 140 characters or fewer, but even the best lawyer in the world can’t draft a successful motion to dismiss that short.

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In a stunning move of questionable constitutionality, a federal court in late July conducted an entire two-day trial behind closed doors, with no access to the public or media “from the swearing in of the first witness through closing arguments.”  As the Reporters Committee for Freedom of the Press reported, even the judge’s ruling was filed under seal.

The highly unusual move came in a trial involving a civil suit filed against the federal government by the family of a Jewish Defense League activist Earl Krugel who was beaten to death by white supremacists while in federal custody. Though United States District Court Judge Stephen Wilson has not explained his decision on the record (that was sealed as well), according to the Los Angeles Times, a clerk for the Central District of California judge said the closure was required because the case involved “testimony that concerned confidential ways prison officials identify gang members, especially the Aryan Brotherhood, which is a very dangerous gang.”

Last week, a coalition of media organization, including the Times, filed a motion to intervene and to unseal the trial transcript and other related records.  The motion to intervene was granted three days later, and the judge requested briefing on the motion to unseal.

In their motion, the media intervenors point to a long line of Supreme Court authorities affirming that the public and the press enjoy a presumptive right of access to civil trials and court records. Any order abrogating that presumptive right must be based on “compelling reasons,” laid out on the record in specific findings of fact. The judge must determine specifically that the sealing of court records or closing of court proceedings is “essential to preserve higher values and is narrowly tailored to serve that interest.”

As the intervenors point out in their motion, it is exceedingly difficult to understand what the compelling reasons for secrecy are or whether the order is indeed narrowly tailored when everything in the case is under seal, including the government’s request for closure. In any case, intervenors pointed out to the court that any supposed security concerns are undermined by the fact that “a description of the relevant parts of the Bureau of Prison’s Program Statement” and other documents relevant to classifying inmates were contained in the court’s previous order ruling on the government’s motion to dismiss. In his order granting the media groups’ motion to intervene, the judge expressed particular interest in briefing on this possible waiver of any security claims.

We will let you know of any developments in this troubling case, including any rulings on the motion to unseal.

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