Free Speech

Attempt to Vanish Posts Critical of the Sandy Hook Hoax Libel Judgment

A request under the name of Leonard Pozner -- the plaintiff in that case -- was submitted to Google, asking it to deindex these criticisms (which aren't themselves covered by the judgment).

|The Volokh Conspiracy |

Lenny Pozner, the father of a boy (Noah Pozner) killed in the Sandy Hook, sued James Fetzer and Mike Palacek, who cowrote the book "Nobody Died at Sandy Hook." The book had claimed, among other things, that

  • "Noah Pozner's death certificate is a fake, which we have proven on a dozen or more grounds."
  • "[Mr. Pozner] sent her a death certificate, which turned out to be a fabrication."
  • "As many Sandy Hook researchers are aware, the very document Pozner circulated in 2014, with its inconsistent tones, fonts, and clear digital manipulation, was clearly a forgery."

Pozner said this libeled him, and in June a Wisconsin judge agreed, and granted Pozner summary judgment on liability; last month, the jury awarded Pozner $450,000 in damages.

Since then, there have been two requests submitted to Google under Leonard Pozner's name, asking Google to deindex pages that contain copies of the libelous book, and Google has gone along with those requests. Google generally does remove from its indexes links to material that a court has found to be libelous, so Google searches for such material no longer find it.

But a week and a half ago, another request came in to Google, and this request also sought to deindex material that simply discussed the case and criticized the court decision, such as various copies of "The Legal Lynching of a Truth-Seeker: Jim Fetzer's Stalinist-Style Show Trial" and "Sandy Hook and the Murder of the First Amendment." The court's judgment of course didn't find these items (posted in response to the judgment) to be libelous, and it offers no basis for Google to deindex them.

As best I can tell, Google didn't deindex these items; it gets such overbroad deindexing requests often, and generally sees through them. But I thought it was worth noting that there indeed has been an attempt to essentially vanish these criticisms from the searchable Internet.

On Monday, I e-mailed Pozner and his lawyer, with whom I had corresponded before, to confirm that the deindexing request submitted under Pozner's name indeed came from him; I have not gotten a response so far. But I have no reason to think that it came from any source other than from Pozner or his associates.

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  1. Streisand wins again. She must have an unbeaten record by now, even regarding her original case, which gets re-publicized every time some other silly goose tries the same thing.

    1. All I know is that she complained about some allegedly false report, but what that report said…I forget.

      Just a second, let’s see what Prof. Wik. E. Pedia says:

      “The term alluded to Barbra Streisand, who in 2003 had sued photographer Kenneth Adelman and Pictopia.com for violation of privacy. The US$50 million lawsuit endeavored to remove an aerial photograph of Streisand’s mansion from the publicly available collection of 12,000 California coastline photographs. Adelman photographed the beachfront property to document coastal erosion as part of the California Coastal Records Project, which was intended to influence government policymakers. Before Streisand filed her lawsuit, “Image 3850″ had been downloaded from Adelman’s website only six times; two of those downloads were by Streisand’s attorneys. As a result of the case, public knowledge of the picture increased greatly; more than 420,000 people visited the site over the following month. The lawsuit was dismissed and Streisand was ordered to pay Adelman’s legal fees, which amounted to $155,567.”

      So, her lawsuit was baseless enough that she had to pay the people she sued. Downloading the picture was perfectly legal, and the suit called attention to the fact that you could legally look at Streisand’s property.

      One could argue that defamation is a different situation, where you already have people exposed to a false report…if Googling the name of a successful libel plaintiff leads to a result like “report about Sen. Belcher was false, says jury” – then maybe I’ll associate the allegations against Belcher with falsity and political dirty tricks.

      [I hope there’s no real Senator named Belcher, because this is simply a hypothetical example]

      1. Is that the Distinguished Prof Wik. E. Pedia, or do we have that category all to ourselves?

      2. One could argue that defamation is a different situation, where you already have people exposed to a false report…if Googling the name of a successful libel plaintiff leads to a result like “report about Sen. Belcher was false, says jury” – then maybe I’ll associate the allegations against Belcher with falsity and political dirty tricks.

        The problem is that many studies show that denials do not change belief. A headline that says, “Accusation X is not true” just leads more people to hear Accusation X, and to remember that Accusation X was made, and to think Accusation X is true.

        Politicians know this; there’s an apocryphal story about LBJ when he was running for Congress telling his campaign aide to spread a story about his opponent’s sexual proclivities with animals. The aide replied, “But sir, you know that he doesn’t have sex with pigs.” And Johnson replied, “Yeah, but I want to hear him deny it.”

        Or, as Prof. Kerr famously put it, You don’t owe me a beer.

  2. I tend to believe, as a default assumption, these this sort of thing comes from PR people rather than directly from the party or their lawyer(s). I’ve seen advertisements from people who purport to offer this sort of service.

  3. I don’t think the request to Google will have the effect of widely publicizing those two idiotic posts.

    And notice that the comments section on the first one features a lot of serious nutballs echoing Fetzer.

    So A is found to libel B, and Google is willing to deindex pages containing the libel. But then C repeats the libel, and Google won’t deindex that. Do I understand correctly?

    1. bernard, you left out D, where EV endorses repeating the libel, more or less ad infinitum, because he insists that folks who were not party to the case should not be bound by it.

      By the way Professor Volokh, if I have that wrong, I welcome correction.

      1. “…because he insists that folks who were not party to the case should not be bound by it. ”

        Sounds right to me. Why should folks who are not party to a case be bound by it?

        1. Twelve, this is another of those publishing issues which never much came up until the internet. In legacy publishing, where reputation, accuracy (and non-defamation) were values defended by private editors, an adjudicated libel would rarely be re-published. Although there were injunctions occasionally, the law did not need to have much to say about it. The editors took care of most cases without needing to be legally compelled.

          The overall result was that a libel judgment was meaningfully protective of the victim, in a lasting way. In that regime, even a judgment-proof would-be defamer was generally hard pressed to find a meaningful opportunity to re-publish an adjudicated libel.

          Now, with no editing, and anonymous weaponized speech gleefully deployed by trolls, that protection is gone, until the law is changed. If you insist that no one who was not party to the case should be prevented from re-publishing the libel, you might as well get rid of the notion of defamation entirely, for all the good it will do. Repeated, systematic defamation, for political purposes, for private advantage, and for criminal extortion, will become the rule.

          I get that there are plenty of internet commenters—especially among right-wingers (for reasons not obvious to me)—who do want to get rid of the notion of defamation. They are no friends of free speech, and should not be encouraged. Letting defamatory publishing run wild is a short route to government censorship of the press. That is what makes it seem incongruous to me to see Professor Volokh, who seems to be a heartfelt defender of speech freedom, advocating in a way which would likely do the opposite.

          1. You’re saying that in the old days, publisher would self-censor and refuse to publish adjudicated libel, even if they found the adjudication non-credible? Do you have evidence of even a single case where this has happened? And why is this a good thing?

            1. Twelve, it is a good thing for free speech, because unrestrained libel is a menace to free speech. It is a good thing for the plaintiff, because he does not get damaged again by re-publications of the libel. It is a good thing for the publisher, because it prevents avoidable costs for court cases and damages.

              Do you have any reason at all to suppose republication of adjudicated libel is a good thing? Why are you even asking the question?

              1. “Twelve, it is a good thing for free speech, because unrestrained libel is a menace to free speech.”

                But restraining non-libel is worse for free speech. And you are claiming that a party should be restrained from publishing stuff that they don’t believe is libelous, without having the opportunity to argue in court that it is not libelous.

                “Do you have any reason at all to suppose republication of adjudicated libel is a good thing? Why are you even asking the question?”

                It is a good thing if the stuff being published is accurate. And you are talking restraining people from publishing stuff that had not been shown to be libelous, without having the restrained party being able to argue that the material is not libelous.

                There are perhaps changes that can be made to 230 to prevent the publication of libelous material, but forcing publishers to remove material without due process violates the first amendment.

          2. “this is another of those publishing issues which never much came up until the internet”

            There’s issues of law that never came up before movable type, too. Every technological innovation brings new issues of law.

      2. he insists that folks who were not party to the case should not be bound by it.

        That is a correct statement of the law, no matter how much you misuse your lack of legal, technological, and historical knowledge to insist otherwise.

        1. It’s accurate, but what’s important here is why things are different now, even though the law is the same.

          The answer is that the courts are losing credibility with wide swathes of the populace. “Yeah, there was a court case, and X won it, but what’s REALLY the truth is, is…”

  4. Not sure what the problem is here.

    Did Pozner use a forged court order or use an existing court order by tried to mis-use it (e.g. expand the terms)?

    Or did Pozner send a simple request to Google?

    If it’s the second one, then, well, there’s nothing wrong with that.

  5. Eschew Alphabet G00gle. There are many search engines that are honest.

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