The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As an April post here noted, some people have been trying to get Google to deindex mainstream news articles—hide them from searchers by removing them from Google indexes—by (a) suing the people quoted in the articles, (b) getting stipulations from the people recanting their allegations, (c) getting court orders based on those recantations, and then (d) submitting those orders to Google.
Now, if a media organization itself gets such a recantation from one of the sources that it quotes, the editors would reasonably ask: Was the source lying then, or is he lying now? If the editors are persuaded that the recantation is accurate, they might well publish a correction, or revise or even take down the original article. But if they think that the original report was accurate, and the recantation was coerced using a lawsuit, they might stand by their story.
When a plaintiff sues the source, though, gets a stipulation and submits the order to Google with a deindexing request, the plaintiff is trying to short-circuit the news organization's review of the matter. Instead, the plaintiff wants to just get the original story hidden, with no independent evaluation of whether the story was and continues to be correct. Such attempts have proved futile, to my knowledge, because Google seems skeptical of these particular requests; but even the attempt seems troubling.
Paul Alan Levy of Public Citizen—who took the lead in blowing open the (separate) Richart Ruddie/Profile Defenders deindexing fraud story—has just gone to court to set aside the order in one such case, Welter v. Does. You can read Paul's full post, but here's the heart of the matter:
1. Megan Welter made national news as an Iraq War veteran who became an Arizona Cardinals cheerleader, but then made the news again when she was arrested for allegedly beating her boyfriend, Ryan McMahon (after having called the police alleging that he was the one who attacked her).
Two years later, Welter filed a defamation lawsuit against an array of fictitious defendants, including businesses as well as individuals. The lawsuit was brought by a lawyer at the Kelly/Warner firm, which I have blogged about before, and which was also involved in two other Internet libel cases that involved apparently fake notarizations, though it's not clear whether the lawyers in those cases knew the notarizations were fake.
The premise of the lawsuit appears to be that McMahon had recanted his allegations; the day before the complaint was filed, McMahon seems to have signed a proposed stipulated injunction "admit[ting] that all or substantially all of the statements made in [a list of] URLs are false and defamatory." Yet what appears to be the audio of the eventual court hearing on the injunction (you may need this player software to hear it) suggests that McMahon may not have actually recanted and may still take the view that his initial allegations to the police were accurate; he states, at 03:00:
Even though she did these things, I really believe that everybody deserves a fresh start. And, you know, if it ever happens to me, I would want somebody to do this for myself, so I'm OK with that, you know, and I guess I just hope she learns her lesson and I hope she takes this as a carrot, and doesn't do it again.
Some follow-up correspondence that I've seen that purports to be from McMahon seems to echo that position.
2. Moreover, the lawsuit, though based on McMahon's stipulation, seems to be after much bigger game than him: The list of URLs included a huge array of mainstream news stories about the arrest, including on the sites of ABC News, Fox News, New York Daily News, Daily Mail (UK), CBS News, USA Today, Yahoo Sports, New York Post, Sports Illustrated, and more. And the proposed injunction—which the court adopted—purported to order not just McMahon but also "Defendant's Agents, affiliates, and/or other person/entity assisting or enabling Defendant's publication of the below-referenced Content" to "immediately remove from all websites, search engines, forums, blogs, lists, social media sites, and/or other forums of mass communication" "all negative statements, material, and/or information pertaining to Welter"; and that expressly included "the Content located" at the listed URLs.
The injunction thus appears to be aimed at legally binding the various sites that host the content (again, such as ABC, Fox and CBS), which seem to be the "other … entit[ies] assisting or enabling" the publication of McMahon's allegedly false statements. And it is certainly aimed at trying to get the material on those sites hidden from public view, whether by direct enforcement by the sites (as the injunction on its face seems to authorize) or by submission to Google for deindexing (as the injunction also seems to contemplate).
3. Levy represents one of the sites that was included in the list of URLs—Avvo.com, a site that provides lawyer referrals as well as articles submitted by lawyers, often about stories in the news; in this case, one of the lawyer-posted articles on Avvo was about the Welter arrest and prosecution. Levy's motion to vacate argues in detail why the injunction is impermissible, but here is an excerpt (some paragraph breaks added):
The complaint and the Stipulated Injunction were riddled with violations of the federal and state constitutional, statutory and common law rights of the many third parties who were subjected to a prior restraint of their right to talk about the legal controversy that ensued after plaintiff Megan Welter made a call for help to the local police. Although her former boyfriend Ryan McMahon was apparently willing to assist her quest to bury these many online articles by agreeing to entry of an injunction against himself, he had no ability to empower the Court to enjoin the free speech of others, even if those others repeated his own statements that he might later have come to regret. And the means employed by plaintiff to secure this injunctive relief against the third-party publishers, withholding notice by pretending to sue anonymous defendants, are additional grounds for vacating the Stipulated Injunction.
First, there was no basis for filing this lawsuit as an action against Doe defendants. On the date she filed this lawsuit, Megan Welter knew that the original source of the negative reports about her were the words of her then-boyfriend Ryan McMahon, as reported in the media and in the police report that was linked from some of the stories, and her own statements and actions as portrayed on the police bodycam video, the video taken from McMahon's cell phone. McMahon's signature on the stipulated order was dated May 19, the day before the lawsuit was filed. Thus, McMahon, at least, was not a Doe defendant.
Second, even assuming that there was evidence that some facts stated by McMahon about plaintiff Welter (and then reported by the press) were false, and even if there were any reason to believe that the statements from McMahon falsely accused Welter with actual malice on McMahon's part, the defamation and false light invasion of privacy claims were [barred by the statute of limitations] ….
Third, Ryan McMahon's purported confession that he had made false factual statements does not constitute evidence of falsity that is admissible against the enjoined parties. The stipulation was not signed under oath; the stipulation does not specify which words were false; and the authors and publishers of the news stories have had no opportunity to cross-examine McMahon.
Thus, no evidence supports the issuance of injunctive relief against the defendants whose web sites carried stories reporting on the police visit to the residence, including reports of what McMahon told the police and what he told the various reporters who covered the story. Even as a matter of state law, without admissible evidence Welter did not carry her burden of establishing an entitlement to injunctive relief that extended to the third parties that carried these reports.
Fourth, extending the injunction to third parties such as Avvo violates the fundamental precept that "a court order does not bind a non-party to the litigation in which the order is entered." [Footnote: Although Avvo believes that it is one of the defendant corporations that was named an anonymous defendant, in that the URL for a story carried on its web site was one of the stories that the complaint alleged was defamatory, it was never served with process and thus never brought before the Court as a party that could be ordered to do anything.] … Neither the news media nor professional web sites such as Avvo become "co-conspirators" with parties that have agreed not to speak ill of each other when they report on the otherwise-enjoined criticisms, or when they leave previous reports on their web sites despite the adoption of injunctions such as the one that the Court entered in this case.
Similarly, … merely reporting on a controversy does not make third parties the "agents" of one of the parties to the controversy; and in any event, the procedure in this case was deliberately designed to avoid any notice to Avvo as well as the many media entities subjected to this unlawful injunction. Avvo is not Ryan McMahon's agent, and Avvo received no notice of this case or, indeed, notice of the entry of the injunction against it….
Finally, the injunction against publication and public access to Avvo's story violates the First Amendment as well as federal and state law. It violates the First Amendment in part because it is a prior restraint—an injunction issued against speech without any evidence and without any judicial findings issued after a full and fair hearing that any statement in the article was false or published with actual malice…. [As] the Arizona Court of Appeals has held, "Absent a clear finding supported by the evidence that a given expression is unentitled to First Amendment protection, a prior restraint should not issue and cannot stand." [And] the Supreme Court has also held that the First Amendment entitles a party to notice and an opportunity to be heard before injunctive relief is issued interfering with its free speech. The failure to give such notice thus violated the First Amendment.
In conclusion, Megan Welter no doubt regrets that she called down a rain of publicity on herself, and her former boyfriend appears to have been willing to help her in her effort to put her past behind her. But American law does not provide a "right to be forgotten" that overrides the First Amendment rights of news media and professional web sites to provide truthful information about past controversies. Welter cannot be granted injunctive relief suppressing unflattering coverage, even if her former boyfriend had the misplaced gallantry to help her get such a court order.