Free Speech

No Preliminary Injunction, No Pseudonymity, No Sealing in Internet Libel Case

That's what a New York trial court decision just posted online today held -- correctly, I think.

|The Volokh Conspiracy |

From the New York trial court decision (by Judge Terry Jean Ruderman) in P.D. & Assocs. v. Richardson:

Plaintiffs are an individual attorney and his law firm, who previously represented defendant Halana Richardson in a personal injury action she brought following a rear-end collision that occurred on September 17, 2002. That trial concluded on January 23, 2008 with a jury verdict against Richardson. Despite the adverse jury verdict, plaintiffs claim that they obtained a $20,000 settlement for Richardson.

After the settlement, the relationship between the parties ceased until June 14, 2017, when Richardson posted an unfavorable review of plaintiffs on Yelp.com …. Specifically, it is asserted that the review claimed that the attorney had lied about his fee, called an unrelated party to the witness stand in Richardson's action, and that he is a thief and a liar and a scam artist. Further the review criticized the attorney's height, compared him to a rodent, and called for his disbarment. While Yelp representatives removed it from the website, as well as a second review Richardson posted, plaintiffs assert that defendant went on to publish more unfavorable, allegedly defamatory reviews on Yelp, Facebook.com, internetcheaters.com, and pissedconsumer.com.

In another review posted on August 1, 2018, Richardson stated that plaintiffs sabotaged her lawsuit and "fixed" the pleadings in her case so as to claim that someone other than the driver of the other vehicle had struck her vehicle, and that plaintiffs were corrupt and were working with the adversary and cannot be trusted. While this review was deleted on Yelp it remains as a post on Richardson's Facebook page. In additional online statements, Richardson accuses plaintiffs of taking bribes from the opposing party in the personal injury case, intentionally losing the trial by putting an unrelated witness on the stand who falsely claimed to have been the driver of the other vehicle, and attempting to sue her for nonpayment, among other things. She goes on to repeatedly attack P.D.'s professional character as an attorney, criticize his height, and compare him to a squirrel….

[P]laintiffs [argue they have been libeled,] seek an order (1) restraining defendant from publishing any statements on any website concerning plaintiffs and plaintiffs' employees, (2) directing defendant to remove certain online posts — which plaintiffs refer to as a "takedown order" — and (3) sealing the instant case record. In support of their motion, plaintiffs contend that defendant's statements inflicted irreparable harm to their reputations as attorneys by targeting their internet presence, on which they rely to retain new clients….

Use of Pseudonymous Caption

Preliminarily, this Court must address plaintiffs' unilateral adoption of a caption that does not state their names. "In a summons, a complaint or a judgment the title shall include the names of all parties" … "[T]he trial court should not pro forma approve an anonymous caption, but should exercise its discretion to limit the public nature of judicial proceedings sparingly and then, only when unusual circumstances necessitate it." If a litigant seeks to employ any means of identification other than his or her name, such relief may be sought by order to show cause when commencing an action.

"The determination of whether to allow a plaintiff to proceed anonymously requires the court to use its discretion in balancing plaintiff's privacy interest against the presumption in favor of open trials and against any potential prejudice to defendant." An action may not properly be brought pseudonymously if the plaintiffs have not "alleged a matter implicating a privacy right so substantial as to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings."

Some trial-level courts of this State have considered the showing necessary for a pseudonymous caption. "[C]ourts have discretion in determining the issue and do so by balancing the privacy interests of the party seeking anonymity against the general presumption favoring open trials and the risk of prejudice to the opposing party." "Embarrassment or economic harm to the plaintiffs is insufficient, but factors to consider as to whether plaintiffs' situation is compelling, involving highly sensitive matters including social stigmatization, or 'where the injury litigated against would occur as a result of the disclosure of the plaintiff's identity.'"

Plaintiffs suggest that the professional embarrassment and injury to their reputation warrants the pseudonymous caption. However, notwithstanding their desire to preserve their privacy, and to prevent further dissemination of defendant's criticisms and claims against them, this matter does not involve the type of truly sensitive and highly personal claims that create a "privacy right so substantial as to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings."

It has been suggested [by a New York trial court] that "allowing plaintiff to proceed under a pseudonym does not significantly hamper the public's interest in open trials because the public will still have access to the court records for [the] case." Nevertheless, the failure to satisfy the controlling rule requiring "a privacy right so substantial as to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings" precludes a pseudonymous caption here.

Sealing the Court File

Plaintiffs also seek a sealing order, on the ground that the statements contained in the complaint are devastating to their reputation. A court may only order the sealing of court records upon a finding of good cause. "In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties." "The party seeking to seal court records must demonstrate compelling circumstances," and the court must then balance that compelling interest in preventing public access to the documents at issue against the presumption in favor of open trials. The mere potential for embarrassment, damage to reputation, or the general desire for privacy does not constitute good cause to seal court records.

Plaintiffs have merely established embarrassment and alleged damage to their reputation, and have therefore failed to demonstrate grounds to seal the court file in this matter.

Preliminary Injunction

The injunctive relief plaintiffs seek on this motion includes an order restraining the defendant from creating, publishing, and/or disseminating any statements concerning plaintiffs on any websites including, but not limited to, Yelp.com, Facebook.com, Internetcheaters.com, and pissedconsumer.com, for the purpose of defaming, denigrating, threatening, harassing, or attempting to injure plaintiffs in any way, including by attempting to cause plaintiffs emotional distress; they further seek a direction that defendant remove specifically named posts on Facebook, Yelp, pissedconsumer.com and internetcheaters.com….

The heightened standard for mandatory preliminary injunctions requiring the removal of posted materials from on-line platforms is discussed in Garcia v Google, Inc. (9th Cir. 2015). There, the plaintiff sought an order requiring Google to remove from all its platforms, including YouTube, a film called Innocence of Muslims, which included a five-second clip of a performance by the plaintiff for which the plaintiff claimed copyright protection. The Court explained that "this relief is treated as a mandatory injunction, because it orders a responsible party to take action, [and] as we have cautioned, a mandatory injunction goes well beyond simply maintaining the status quo pendente lite [and] is particularly disfavored." It elaborated that "[t]emporary restraining orders and permanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints" and that "[p]rior restraints pose the most serious and the least tolerable infringement on First Amendment rights."

The particular concerns that arise with requests to enjoin a party from the on-line posting of highly critical statements about another party were recently addressed by … Brummer v Wey (N.Y. App. Div. 2018). There, the Court reversed a motion court's grant of the plaintiff's motion for a preliminary injunction order both enjoining the defendants from posting articles about him on line, and requiring the defendants to remove all articles they had posted about him. The Court initially observed that "[p]rior restraints on speech are the most serious and the least tolerable infringement on First Amendment rights, and any imposition of prior restraint, whatever the form, bears a heavy presumption against its constitutional validity." Because "to obtain such a restraint … [the applicant] must show that the speech sought to be restrained is 'likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest' [such as] an intent to commit an act of unlawful violence to a particular individual or group of individuals," even highly offensive, repulsive and inflammatory speech does not meet this exacting constitutional standard.

Importantly, the Court in Brummer v Wey emphasized that "although it may ultimately be determined that defendants have libeled plaintiff, "[p]rior restraints are not permissible … merely to enjoin the publication of libel."

In addition, while published statements that "charg[e] plaintiffs with a serious crime" or "tend to injure another in his or her trade, business or profession" constitute libel per se, the circumstances and context of the publication is important in determining whether a statement is actionable… "[T]he culture of Internet communications, as distinct from that of print media such as newspapers and magazines, has been characterized as encouraging a 'freewheeling, anything goes writing style.'" In the context of on-line sites such as Yelp, Facebook, and pissedconsumer.com, where users post criticisms of professional services, even such assertions as calling a person a thief, a liar, dishonest, corrupt and a scam artist may be found to "amount to the opinions and beliefs of dissatisfied clients about their attorney's work."

While the portions of defendant's posted statements that use the words "law firm takes bribes" read as defamation per se, and while this Court does not question plaintiffs' professionalism, the falsity of the statement may not be assumed, but rather, must still be proved for it to constitute defamation. The same holds true for defendant's assertion that "the lawyer knew the individual rear ended me and did put someone else on the stand instead of the individual that rear ended me," which has the indicia of actionable mixed opinion that "implies that it is based upon facts which justify the opinion." Without a hearing, plaintiffs' denials of the asserted misconduct, in papers submitted at the commencement of the action on a motion for a preliminary injunction, even though unopposed, do not establish the truth of their assertions so as to justify a "takedown" order at this time.

[Foonote:] … New York courts have granted preliminary injunctions removing and precluding allegedly libelous internet postings (see Dae Hyun Chung v Google, Inc. (App. Div. 2017); Dennis v Napoli, (App. Div. 2017)). However, the Dae Hyun Chung case was decided solely on procedural grounds, and contains no discussion of constitutional concerns. The ruling in Dennis v Napoli is distinguishable from the instant matter, in that the information used by the defendant there to harass and defame the plaintiff had been improperly obtained through an intrusion into the plaintiff's own work email account and personnel file; moreover, there was no merit to the defendant's constitutional argument that "her unsolicited communications to plaintiff's professional colleagues, friends, and family about plaintiff's alleged sexual proclivities are constitutionally protected speech."

None of the foregoing precludes a determination that defendant's statements are defamatory. It merely precludes a grant of the preliminary injunction "takedown order" plaintiffs seek….

For the plaintiff's side of the story, see the documents supporting the motion to seal and the motion for an injunction.

NEXT: China’s cyber offense comes of age

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The best defense against scurrilous speech is better speech. I’ve never been on the receiving end of such slurs, but it someone’s testimony as to my character included comparisons to squirrels, I’d have to laugh and point it out, and suggest that perhaps the rest of the “evidence” was similarly unreliable. Word it ever so politely just to enrage and bait the attacker, make them say even dumber things.

    Anyone who’d believe such anonymous nonsense isn’t going to be a very good client anyway.

  2. The best defense against scurrilous speech is better speech.

    That is utterly wrong. Could not be wronger. Better speech is not only not a defense against scurrilous speech at all, it can only function to re-open and re-publicize the scurrilous allegations, potentially ad-infinitum.

    What you have done is repurposed a nostrum that has at least some applicability in political debate, and applied it instead to try to make it look like damage from defamation can be made to go away without need of a legal remedy.

    Your comment amounts to a defense of defamation. That puts you in plentiful company on today’s internet. Unfortunately, large groups of people can all be wrong together. When that is the case, advocacy on behalf of the group’s position can take on some of the character of majoritarian persecution of minorities. So it is not surprising that this kind of advocacy is especially popular among internet fans of weaponized speech. Not saying you are one of those, but I am suggesting it is an issue which everyone who belittles the damage done by defamation needs to think about.

    1. Your guesses as to my motives and reasoning are bunk; guesses, asserted as truth, with no more evidence than a rabid squirrel needs to attack a bird feeder.

      1. But I did not guess about your motives. Or at least I did not intend to. But on re-reading, I see where you might object. My apology. I did include a note to acknowledge you could be differently motivated.

        That does not make your remark any less mistaken. The part where I said, “Your comment amounts to a defense of defamation,” remains true, no matter how motivated. Nor will any state of motivation, whatever it is, make your commentary any less welcome among the pro-defamation crowd on the internet. Given that, and given motives different than the ones you think I took the comment to imply, are you content to leave your comment unmodified?

  3. Once again, just for the Section 230 fans, there is absolutely nothing at issue in this case which repealing Section 230, and making internet publishers read everything before publishing it, could not greatly ameliorate.

    1. And how do you propose the internet publisher determine if the allegations are true or not to be considered defamation?

      1. mse326, the internet publisher, enjoying press freedom, decides that question according to his own lights. The publisher may wish to dismiss the submission out of hand, or may think it worthwhile to do the independent research necessary to verify truth or falsity, or may decide he is feeling lucky that day, and just publish it without further consideration. Experience teaches us that ink-on-paper publishers—subject to a more stringent regime than Congress has decreed for their internet competitors—very rarely publish stuff like we read in the OP above.

    2. How?

    3. On the contrary, there is absolutely nothing at issue in this case which repealing Section 230 would do anything to solve. But you have repeatedly proven that you don’t have a clue what Section 230 is really about.

      1. Rossami, how come stuff like you see in the OP is all over the internet—where it gets practical protection from Section 230—but rarely if ever is to be found in ink-on-paper publishing—where Section 230 is not part of the picture?

        Apparently, like other Section 230 defenders, you are a free speech utopian. Disagreeing with utopians might sometimes prove clueless, but agreeing with them almost always will.

        1. Stephen, how do you remain so resolutely blind to all the counter-examples of ink-on-paper publishing that contradict your hypothesis? Despite your repeated claims, traditional print newspapers were almost never liable for the things said by their readers. Yes, there were a few wrongly-decided outlier decisions but for the vast majority of cases, newspapers were found not liable.

          More to the point, print newspapers are not the right comparison. Requiring a social media provider to censor the things said by their users is closer to trying to hold a pub owner liable for the things said by his patrons while they are talking among themselves. That’s … I want to say insane but there are historical examples of totalitarian regimes doing exactly that. I will say that it is anathema to a free and just society.

          1. Rossami, I am at a loss to respond, because as far as I can recall, at least since the dawn of the 20th century, no publishing history such as you describe has existed in the U.S. So I challenge you to demonstrate. I assert that nothing resembling the Richardson commentary described above has ever been published in the NYT during the last 50 years. If you wish, throw in the Los Angeles Times and the Washington Post. Taking them all together, find one such example, whether in commentary, news reports, freelance contributions, letters, or advertising.

            You will not find it in those newspapers. Probably, you will not find it at all, unless you look to the internet. And there you will find instances beyond mentioning.

            Your example of the pub owner, however is on point, and I am glad you brought it up. It illustrates a point I have offered repeatedly—which is that commenters here mostly do not understand that publishing and speech are not the same, and each has always stood in a different and particular relation to both law and custom.

            Things said in a pub are lost to history almost as soon as they are spoken. They seldom reach beyond the walls within which they are uttered. Available listeners seldom encompass almost the whole of a village, let alone a city, state, or nation. And what those listeners hear fades with their memories, and is extinguished by their deaths. Those factors tend to make spoken defamation trivial. And that is how the law has usually treated it.

            By contrast, published remarks are perpetual. They reach everywhere and command audiences orders of magnitude larger than spoken remarks. Even deaths among the audience do little to attenuate potential damage. A person damaged by publishing is not only damaged in life, but in perpetuity. Published defamations can not effectively be corrected, because there is no assurance that a correction will reach even an appreciable fraction of the audience for the original, let alone the entire audience. And damages which result are proportionately worse—or even disproportionately worse. For that reason, the law has always treated libel (published defamation) as a grave transgression, subject to rigorous scrutiny, and imposing punishments.

            For good reason, the pub and the press have not been treated alike by the law, or by custom.

            Alas for your argument, tested against the points made above, defamation by internet publishing is not at all like slander (pub talk). It is exactly like libel, and is libel, because its duration is perpetual, its reach is not local at all, but world-wide, and corrections, even if made, can never be assured to reach everyone. Even after the death of the target, and of his attacker, damages made against him by publishing can be renewed against his historical reputation.

            The law has always understood that slander usually does little damage, and that libel can be ruinous. One practice which transforms internet optimists into utopians is their cheerful disregard of that reality-rooted distinction.

            To that I add this one additional point. Speech freedom is not a given. Especially in a democracy, it’s continuation cannot be assured past the point where most people cease to think it is worth the trouble, or worse, decide it is a baleful nuisance.

            Once a population stores up among its members too much malign experience with scurrilous internet speech, and the damage it does, the risk is that they will reconsider, and say, “If this is speech freedom, I want no part of it.” Or perhaps worse, a majority will say, “If this is speech freedom, government should censor it.”

            Internet utopians now court that result, with an insouciance which bespeaks how little awareness they have about the risks they run. That insouciance is rooted in disregard of the differences between speech and publishing—as between the pub and the press, if you will.

  4. Personal Injury Lawyer Raleigh knowledgeable personal injury lawyer has won numerous settlements in negligence and medical improper. Call at (952) 939-3485 and get more information from our experts.

  5. Personal Injury Lawyer Virginia Beach is best in their work to make sure you win with a guarantee for personal injury lawyer. Let Us Help you, make a call for free initial consulting at Virginia Beach.

Please to post comments

Comments are closed.