Libel Takedown Litigation

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

Lenny Pozner has tried to get Amazon Web Services to remove a post of mine.

|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 2019 a Wisconsin judge agreed, and granted Pozner summary judgment on liability. In October, the jury awarded Pozner $450,000 in damages, and in December, the judge issued an injunction barring Fetzer "from communicating by any means" these libelous statements. (Such anti-libel injunctions, following a judgment on the merits, are generally viewed as constitutional by most courts that have recently considered the matter.)

But in October, a request was submitted to Google, in Pozner's name, seeking 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.

In November, I wrote about this, and yesterday I learned that Amazon Web Services had gotten a takedown demand (which, as best I can tell, Amazon is not acting on):

Abuse Case Number: 18997156878-1

* Log Extract:
<<<
This email is being written relating to your website post on reason.com
where you are violating a restraining order protecting the Pozner family.

https://reason.com/2019/11/06/attempt-to-vanish-posts-critical-of-the-sandy-hook-hoax-libel-verdict/

A court recently found that certain Hoax statements
<http://www.poznervfetzer.com/wp-content/uploads/2019/12/fetzer-permanent-injunction.pdf>are
defamatory.

Demand is hereby made for you to remove the link below immediately.
https://reason.com/2019/11/06/attempt-to-vanish-posts-critical-of-the-sandy-hook-hoax-libel-verdict/

Failure to do so will leave no alternative but to seek legal redress and remedies in the appropriate court of law.

PLEASE BE GOVERNED ACCORDINGLY.

Lenny Pozner

Now of course I can't be violating any "restraining order" through my post, because there is no restraining order that applies to me. The injunction in Pozner v. Fetzer applies to Fetzer, not to anyone else. There thus seems to be no legal basis for Pozner's demands.

When I corresponded with him, I got two theories:

[1.] "You are repeating the defamatory statements." But I'm simply reporting on the outcome of the court case—that the court found certain statements to be libelous. In the course of that, I have to explain what those statements were, but any such explanation is privileged against a defamation claim, see Cal. Civil Code § 47(d)(1)(D):

A privileged publication or broadcast is one made: … (d) (1) By a fair and true report in … a public journal, of (A) a judicial … proceeding, or (D) of anything said in the course thereof ….

That's why newspapers, for instance, freely report on accusations by parties and witnesses in court cases (whether libel cases or otherwise); same for me.

[2.] "The only person who is repeating your article and statements is Fetzer and gang and therefore he is using you as a third party to do which he cannot do himself. You are linked to Fetzer[.]" Now an injunction could bind people who are actively working with a defendant (the one against Fetzer by its terms doesn't). But I'm writing on my own behalf, not on Fetzer's or with Fetzer (whose views I do not share). I don't know how interesting my posts are to Fetzer and his supporters; I write for the benefit of our readers (and for my own pleasure). In any event, though, even if "Fetzer and gang" are just delighted by my posts, that has no bearing on my own First Amendment rights.

In any event, I thought I'd let our readers know about this latest development, both for its own sake and as an illustration of the sort of techniques that people sometimes use to try to vanish online material that they dislike.

Advertisement

NEXT: Lincoln Chafee, Former Republican Senator and Independent Governor, Seeks Libertarian Party Presidential Nomination

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. This is one of those situations where we can simultaneously feel empathy for someone’s emotional pain while also acknowledging that they’re ignorant fools.

    1. Do you refer to Mr. Pozner or instead to Prof. Volokh?

      I believe Prof. Volokh is often misguided and too censorious for an ostensible champion of expression but is nonetheless quite smart.

    2. feel empathy for someone’s emotional pain

      You may well feel such empathy. No doubt you’ve renounced Alex Jones and his supporters.

      I very much doubt that many on the right share that feeling. There’s a market for the bile spewed by Fetzer and Palacek, and it’s not among liberals.

      1. bernard11: According to a 2016 Farleigh Dickinson University survey, https://view2.fdu.edu/publicmind/2016/160504/, “Republicans and Democrats alike rejected the idea that the Sandy Hook school shootings were faked, with only 8 percent of Democrats and 7 percent of Republicans saying that it was true.” If one includes those who said it was “possibly true,” we get 21% of each. (Oddly, 50% of independents said it was definitely true [15%] or possibly true [35%], though the sample size is small for them.) Breaking down by candidate they support, the total for definitely+possibly true was for 23% for Clinton and Sanders supporters, and (statistically indistinguishable from the 23%) 21% for Trump supporters and 20% for Cruz supporters.

        So it’s not clear to me that most Sandy Hook conspiracy theory supporters are conservatives (as your last sentence seems to suggest). But in any event, it seems pretty clear that most conservatives are not Sandy Hook conspiracy supporters (contrary what your second to last sentence implies, I think). So what basis is there to “very much doubt that many of the right share” “empathy for [the] emotional pain” of parents whose children were killed at Sandy Hook?

        1. The popularity of Mr. Jones, especially with Trump?

          1. I can assure you that neither I (who consider myself a conservative) nor any other conservative I know doubts that the Sandy Hook massacre occurred, and we deeply empathize with (and pray for) the parents of the Sandy Hook victims.

          2. While it may be true that most Jones supporters are conservatives (a fact I assume for purposes of discussion but don’t actually believe, based on Professor Volokh’s statistics), it is a logical fallacy to suggest that most conservatives are therefore Jones supporters.

            1. I don’t think most conservatives are “Jones supporters.” I do think a large number – maybe most – are “Jones tolerant.”

              After these school shootings we inevitably see an outpouring of conspiracy theories about “crisis actors,” etc., from people like Jones, Gateway Pundit, etc. Remember the attacks on the Parkland survivors? These are not left-wing sources.

              1. Yes, I remember the attacks on the Parkland survivors that refused to support Progressive policies and wanted the truth about the school district, security officers, and police responders that did nothing!

              2. And yet when the good professor provides statistics which, if anything, show the opposite of your claim, you instead double down by insisted that even if conservatives don’t generally support Jones, they’re at least tolerant of him, implying that you think liberals are meritorious in their intolerance.

                Well, when events change, I change my mind, I think it’s pretty clear what you do.

          3. I’ve never watched or paid attention to Alex Jones for even a second, except in September 2018, at a tumultuous time in the McCarthyist Trump-Russia witch hunt, he made a splash in the media by holding this press conference in D.C. I watched the whole thing and it was just amazing.

            https://www.youtube.com/watch?v=Z3JaThE71Tc

            I’m not OK with what I understand he said about Sandy Hook, though, and I’m guessing that’s just the tip of the iceberg and he says all kinds of other crazy things.

    3. I would not call Mr. Pozner ignorant nor a fool. I would say he is misguided.

      1. Perhaps ignorant of the finer points of First Amendment law, and misguided, likely, by his legal representation. On the other hand, they did get him that half million dollar judgment so it makes sense that he’d continue to follow their lead.

        1. Here I wonder if he’s even aware of the specific request, perhaps because he hired someone (his law firm perhaps, but there are others who focus on this sort of thing) to purge the internet of their scurrilous claims and that entity merely overshot.

          As someone (Scott Green, or maybe Ken White) said so eloquently, “when you outsource your marketing, you outsource your ethics.”

  2. Go, Volokh! Go freedom of speech! Thanks for this post. Most-informative.

    1. I second that.
      First, we’ll silence the bad people. (We’ll make it so they can’t even complain about being silenced.) Then we’ll silence anyone who criticizes us for silencing the bad people. Then we’ll silence anyone who mentions us silencing anyone. Then, in the words of Supreme Chancellor Palpatine, we shall have peace.

  3. But let’s say that Amazon does choose to take down your post in response to Mr. Pozner’s demand. I would disagree with that decision, but would it trigger a First Amendment issue? Where is the government action?

    1. Had Pozner simply asked Amazon to take the post down as a matter of business judgement or goodwill, there would be no First Amendment issue. Since they instead tried to use a legal process to coerce Amazon into taking the post down, the First Amendment is implicated.

      1. I may have misunderstood Professor Volokh’s post, but I thought that Amazon just received a demand letter and Mr. Pozner has not actually instituted any legal proceeding against either Amazon or Professor Volokh. Because the original restraining order to which Mr. Pozner refers does not apply, by its own terms, to Professor Volokh’s post, I don’t think the existence of that restraining order qualifies as the requisite government action.

        1. Mr Pozner or thru his attorney have referenced the legal proceeding as justification to remove Prof Volokh’s post. Unfortunately, many other people have used legal proceedings illegally in a similar manner which is a topic that Prof Volokh has been writing about for several years.

        2. But the letter is phrased as to imply that it does, and an uneducated (meaning: right out of college kid at a tech company) person is unlikely to know better.

          It’s like the cops banging on your door shouting “we’ve got a warrant, let us in” and after you do so saying “well if you have a warrant by all means come in” you learn that their warrant is for a different location entirely. The police never claimed they had a warrant to search your property, but relied on your misinterpreting their explicit claim by reading into it the implicit: that their warrant was for you. Of course when the cops do that they’ll later argue that you voluntarily let them in, so it was a consensual search, but just because there’s no teeth at the end doesn’t mean it’s not a threat to use the monopoly on violent force of the government if your demand is not complied with.

  4. I get where he’s coming from. He feels like you’re enabling these people by defending their freedoms. I don’t know how you say this respectfully to someone who lost their child, but with all due respect, his pain and suffering doesn’t entitle him to sue everyone into compliance with his wishes. Yes, there are people cruel enough that they would question the death of your son. Welcome to the wild and crazy world we live in. You’ll only meet more of them the more you search online and hunt for crazies.

Please to post comments