Arizona Bar Accuses Libel Lawyers of Suing Fake Defendants

"There is no notary in Fulton County named Amanda Sparks.... The notarization by Amanda Sparks is a forgery.... Connie Hood and Jesse Wood are not real. Connie Hood and Jesse Wood were fabricated in order to obtain a stipulated order of permanent injunction removing criticism of Adam Lynd from the internet.... Howard Marks is not real.... Robert Smith is not real.... Damon Lentz is not real...."

[UPDATE: Here are the final judgments, filed July 30, 2018, based on stipulated admissions to some of the charges and dismissal of others: Kelly and Warner; the stipulated discipline was a reprimand and two years' probation.]

Friday, the Arizona State Bar filed a disciplinary complaint accusing two lawyers of filing libel lawsuits against fake defendants. Why would anyone do such thing, you might ask? How can you get real money (or real compliance with an injunction) from a fake defendant?

Well, say you think some people are libeling you online. You try to get them to take down the libelous material, but you can't find them, or they refuse. You try to get the hosting site to delete the material, but it refuses. (Under the federal 47 U.S.C. § 230 statute, such intermediaries can refuse without fear of liability.)

So you e-mail Google, and ask it to remove the page from Google's indexes, so that Google users won't see it. "We don't know whether it's actually libelous," Google responds, "and we aren't equipped to figure that out. But tell you what: You get a court order against the author that concludes the material is libelous, and then maybe we'll consider deindexing it."

Now you, or the reputation management company you hired, can get a lawyer and bring that lawsuit. Many people do -- but it's time-consuming and very expensive. And maybe you'll lose: Maybe the defendant will defend, and will point out that the statement is just nonactionable opinion, or is factually accurate, or (what often happens) was written long enough ago that the statute of limitations runs. So you might be out the money, and without a remedy.

That's where the fake-defendant lawsuits come in. Someone -- the plaintiff, the reputation management company, or the lawyer -- decides to file suit against a nonexistent defendant. The complaint is filed in court together with a stipulation from the "defendant" (actually filed by whoever is engineering this on the plaintiff's behalf) agreeing that the statement was false and defamatory, and agreeing to the entry of an injunction ordering the "defendant" to remove the statement. The court sees what appears to be agreement between the parties, and issues the injunction.

In one such case, I saw the injunction issued a blazingly fast four days after the filing. Lovely! The only problem, of course, is that it's a fraud on the court.

Back in Fall 2016, Paul Alan Levy and I wrote about one such scheme that we had uncovered (thanks to a tip from one of the scheme's targets, Matthew Chan). The operation was run by one Richart Ruddie, of a company that had various names, including Profile Defenders.

Ruddie apparently arranged the filing of some such fake-defendant lawsuits; we linked him to several, though I found a total of about 25 lawsuits in various courts that had very similar boilerplate, and 15 of them gave addresses for the defendants -- addresses that didn't seem to correspond to any such defendant, at least based on the public record searches that we ran (with the invaluable help of Giles Miller, a private investigator at Lynx Insights & Investigations). But all these lawsuits were ostensibly filed by the plaintiffs without a lawyer. (I say "ostensibly" because it's possible that the reputation management company filed some of the lawsuits without telling the plaintiffs, and the plaintiffs weren't even aware that the lawsuits were going to be filed -- much less that they were fraudulent -- but were relying on the seemingly reputable reputation management company to just "do something" behind the scenes.)

The Arizona lawsuits, though, were filed by lawyers Aaron Kelly and Daniel Warner of Kelly / Warner Law, a prominent Internet libel law firm (though some were also linked to Richart Ruddie, Profile Defenders, and a company connected to Profile Defenders). One example was Chinnock v. Ivanski, filed by Warner; here's what the Arizona Bar alleges about it, with the most interesting details emphasized (for more, see this March 2017 post on this blog about Chinnock; many thanks to the Lumen Database project at Harvard's Berkman Klein Center for its invaluable help with that research):

[30.] In 2016, Respondent Warner was hired by Joseph Chinnock to remove allegedly defamatory posts about Chinnock from the internet. At that time, Respondent Warner was already aware that Chinnock was accused in Florida of fraud and using a fake identity [because Kelly/Warner Law had earlier gotten the court file in the Florida Kogan v. Chinnock case, in which Chinnock was accused of fraud and impersonation].

[31.] The allegedly defamatory posts were purported to originate from a woman named Krista Ivanski.

[32.] Prior to filing the complaint on behalf of Chinnock, Respondent Warner and others in his firm communicated with an individual identifying herself as defendant Krista Ivanski. All communication was conducted through email. No one from the firm spoke with Ivanski on the phone or in person.

[33.] The email addresses for Ivanski were provided to the law firm by Chinnock. The email addresses were [e-mail] and sarawood7 [e-mail].

[34.] In June 2016, Respondent Warner filed a complaint on behalf of Joseph Chinnock …. Prior to filing the complaint, Respondent Warner was aware that Chinnock was accused in Florida of fraud and using a fake identity.

[35.] The complaint in Chinnock v. Ivanski alleges defendant Krista Ivanski defamed Plaintiff Joseph Chinnock by posting 38 false statements about Chinnock on the internet….

[37.] Respondent Warner took no action to determine if the statements were true or false before filing the lawsuit.

[38.] The first URL listed in the complaint (https://bitcointalk.org/index.php?topic=669614.0) routes to a page wherein individuals complain about a scam run by Joseph Chinnock. The page claims Chinnock uses the aliases of Sara Wood, Sara Ward, and Patrick McDowell to run scams.

[39.] [e-mail] was one of the email addresses for Ivanski provided to the firm by Chinnock.

[40.] The complaint states Ivanski resides in Turkey and Chinnock resides in Colorado. The complaint states, "[t]he parties purposefully availed themselves of the benefits of Arizona law," but does not explain how the state courts in Arizona have jurisdiction to hear the matter….

[42.] Respondent Warner knew that Krista Ivanski is not a real person. Krista Ivanski was fabricated to serve as defendant in the matter.

[43.] Respondent Warner knew that Krista Ivanski did not post the 38 allegedly defamatory statements.

[44.] Respondent Warner knew that the 38 allegedly defamatory statements were not posted by the same person.

[45.] Respondent Warner knew that legal action regarding many of the allegedly defamatory statements was barred by the [Arizona one-year] statute of limitations ….

[46.] Alternatively, if Respondent Warner did not know the information in paragraphs 42-45, Respondent Warner failed to investigate the matter prior to filing the complaint.

[47.] In June 2016, Respondent Warner filed a document entitled "Stipulation For Permanent Injunction and Dismissal Without Prejudice," ostensibly signed by Krista Ivanski. Warner knew that Ivanski's signature was forged or failed to investigate the matter prior to filing the document….

[50.] The proposed order is signed by Ivanski and notarized by Amanda Sparks, a notary from Fulton County, Georgia. The Plaintiff's Verification attached to the original complaint and signed by Chinnock was also notarized in Fulton County, Georgia. According to the complaint, neither Ivanski nor Chinnock reside in Georgia.

[51.] There is no notary in Fulton County named Amanda Sparks. A search performed via the Georgia Superior Court Clerk's Cooperative Authority notary search shows no notary in Fulton County named Amanda Sparks. The notarization by Amanda Sparks is a forgery.

[52.] Respondent Warner knew that the notarization by "Amanda Sparks" from Fulton County, Georgia, was a forgery or failed to investigate the matter prior to filing the document.

[53.] In August 2016, Respondent Warner filed a document entitled "Stipulation For Amended Order For Permanent Injunction," ostensibly signed by Krista Ivanski. The address used for Ivanski in the Stipulation For Amended Order For Permanent Injunction differs from the addresses used for Ivanski in earlier pleadings.

[54.] The proposed Amended Order For Permanent Injunction is signed by Ivanski and notarized by "Samantha Pierce," a notary from Colorado. According to the complaint, Chinnock resides in Colorado while Ivanski resides in Turkey.

[55.] There is no notary in Colorado named Samantha Pierce. A notary search performed via the Colorado Secretary of State's website returns "no records found" for notary Samantha Pierce. The notarization by Samantha Pierce is a forgery.

[56.] The notary ID used by Samantha Pierce is 20121234567. The sample notary seal displayed on the Colorado Secretary of State's general notary information page uses notary ID 20121234567.

[57.] Respondent Warner knew that the notarization by Samantha Pierce was a forgery or failed to investigate the matter prior to filing the document.

[58.] The request for an amended order for permanent injunction was granted by the Court.

[59.] Chinnock v. Ivanski was a fraudulent lawsuit designed to achieve client Chinnock's goal of removing online criticism without having to prove the elements of defamation.

[The complaint also alleges that Aaron Kelly's Lynd v. Hood case involved a forged notarization and fake defendants: "[The ostensible defendants] Connie Hood and Jesse Wood are not real. Connie Hood and Jesse Wood were fabricated in order to obtain a stipulated order of permanent injunction removing criticism of Adam Lynd from the internet. Respondent Kelly knew that Connie Hood and Jesse Wood were fabricated defendants or failed to investigate the matter prior to filing the complaint…. Lynd v. Hood was a fraudulent lawsuit designed to achieve client Lynd's goal of removing online criticism without having to prove the elements of defamation."

It alleges much the same about Kelly's Gottuso v. Marks case: "Howard Marks is not real. Howard Marks was fabricated in order to obtain a stipulated permanent injunction. Respondent Kelly knew that Howard Marks was a fabricated defendant or failed to investigate the matter prior to filing the compliant."

And about Kelly's Cohen v. Smith case: "Robert Smith is not real. Robert Smith was fabricated in order to obtain a stipulated permanent injunction. Respondent Kelly knew that Robert Smith was a fabricated defendant or failed to investigate the matter prior to filing the complaint."

And about Kelly's Varden v. Lentz case: "Damon Lentz is not real. Damon Lentz was fabricated in order to obtain a stipulated permanent injunction. Respondent Kelly knew that Damon Lentz was a fabricated defendant or failed to investigate the matter prior to filing the complaint." (These are just excerpts -- you can read the Complaint for more details on the allegations, including on the Ruddie connection.)

And it alleges a somewhat different pattern for Ruddie v. Kirschner, a Maryland case filed by Richart Ruddie in order to get some material critical of Dan Warner himself de-indexed (note that it's not clear whether the allegation is that Kirschner just doesn't exist, or does exist but is not the author of the allegedly libelous post):

Kelly/Warner Law has a business relationship with Ruddie. The firm and Ruddie have referred cases/clients to each other for many years. Ruddie and his company Profile Defenders have been clients of Kelly/Warner Law since 2012, and, in mid-2015, the firm employed Ruddie as an expert in a case in the U.S. District Court for the Eastern District of Pennsylvania (Case No. 2:14-cv-05980-GAM [Monarch v. Gorman]).

In June 2015, Respondent Warner initiated a copyright action alleging unauthorized use of Warner's photograph in a post on Ripoffreport.com. The goal of the action was to de-index or remove a consumer complaint hosted at the following URL: http://www.ripoffreport.com/r/DANIEL-WARNER-KELLY­WARNER-LAW/DANIEL-WARNER-KELLY-WARNER-LAW-Daniel-R-Warner-Daniel-Warner-Lawyer-FROM-Kelly-Warner-Law-1231611. [EV adds: I think this refers to a Digital Millennium Copyright Act takedown demand sent to RipOffReport, Google, or both, rather than to a federal copyright lawsuit.]

The action did not result in removal of the content.

In November 2015, Richart Ruddie filed a pro per lawsuit in Ruddie v. Kirschner 24-C-15-005620 (Maryland), alleging that Jake Kirschner "posted false and defamatory statements" at: http://www.ripoffreport.com/r/DANIEL-WARNER-KELLY-WARNER-LAW/DANIEL-WARNER-KELLY-WARNER-LAW­Daniel-R-Warner-Daniel-Warner-Lawyer-FROM-Kelly-Warner-Law-1231611.

The allegedly defamatory statements that were the subject of the complaint in Ruddie v. Kirschner were the same statements Respondent Warner attempted to remove by filing the copyright action.

The lawsuit filed by Ruddie was fraudulent. Jake Kirschner did not post the allegedly defamatory statements. At least one of the statements was posted by an individual named Charles Roderick.

The allegedly defamatory statements are about Respondent Warner, not about Ruddie as alleged in the complaint.

Ruddie filed a fraudulent lawsuit to remove online criticism of his business associate Respondent Daniel Warner.

Respondent Warner knew that Ruddie filed the fraudulent lawsuit to achieve Respondent Warner's goal of removing the online criticism without having to prove the elements of defamation.

All this conduct, the complaint alleges, violated various Arizona Rules of Professional Conduct, including 1.2(d) ("A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent"), 3.1 ("A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a good faith basis in law and fact for doing so that is not frivolous"), 3.3 (requiring candor towards the court), and 8.4(c)-(d) (barring "conduct involving dishonesty, fraud, deceit or misrepresentation" and "conduct that is prejudicial to the administration of justice").

The complaint also alleges a different kind of misconduct involving another Kelly/Warner lawyer, which I'll blog about later -- but for now, I wanted to explain the alleged fake-defendant takedown scheme.

Keep in mind, of course, that the complaint just sets forth the Arizona Bar's allegations; the ultimate decision will be made by the Presiding Disciplinary Judge together with a two-member hearing panel, and could then be appealed to the Arizona Supreme Court. I expect that a major question will be whether Kelly and Warner knew about the alleged shenanigans, and, if they didn't know, how culpable they were in not properly investigating the facts.

Finally, the possibility of such shenanigans (among others) bears on the Hassell v. Bird litigation that is now before the California Supreme Court: The issue there is whether libel takedown injunctions can actually be made legally binding on Internet platforms (such as Google, Yelp, and the like) -- even though the platforms aren't parties to the lawsuits -- rather than just being something that platforms choose whether to follow. The questionable nature of many such injunctions is reason to further insist that the platforms not be legally bound by the results of litigation in which they never participated, and the accuracy of which they never had a chance to probe.

Here is an excerpt from the Kelly / Warner statementresponding to the complaint:

For reasons that remain uncertain, the State Bar of Arizona has decided to continue its investigation by filing a formal bar complaint against Aaron Kelly, Daniel Warner and Raees Mohamed.

Some might say….WOW…and jump to conclusions. However, Kelly / Warner is pleased to have an opportunity to demonstrate publicly that no one at the firm has engaged in any wrongdoing.

Internet defamation attorneys cannot and will not be held to a higher standard of care than normal attorneys. After a quick reading of the ethical rules, the comments thereto, and a case filed by the Texas Attorney General against a reputation management company, it should be evident to any reasonable person that the old saying, "where there is smoke, there is fire" is not necessarily true in the digital age today.

"An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client's behalf, and not assertions by the lawyer." ER 3.3 cmt 3 (emphasis added).

"The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. [And] [a] lawyer's reasonable belief that evidence is false does not preclude its presentation to the trier of fact." See ER 3.3 cmt 8. "[A] lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client . . . ." Id. Although the firm practices far within and from "the line," the comments to the ethical rules indicate that "the line" extends rather far.

The Texas Attorney General filed a lawsuit against the Solvera Group, Inc., a reputation management company, for engaging in a scheme to fraudulently remove information from the internet. In the complaint, the Texas Attorney General identified both the consumers and the attorneysasbeing victims who were misled by the reputation management company. See Complaint, ¶ 17.

We, at Kelly / Warner, intend to vigorously defend against all allegations of wrongdoing.

And to all of our loyal clients, we thank you for your support and encouragement; please know that we will never stop fighting for you and defamation victims like you.

UPDATE: Paul Alan Levy has more.

Comments

[JoeGoins]

I wonder if they referred the issue to law enforcement.

[santamonica811]

You are doing a real service by publicizing these types of cases. Utterly repulsive actions (at least, based on what you've written . . . I'll keep an open mind till I hear the defense's side.)

It's not like lawyers have a sterling reputation now. Behavior like this can only make things worse.

[NToJ]

Watch it. You're talking about a fierce but sensible advocate.

[Stephen Lathrop]

Another malodorous consequence of Section 230 of the Communications Decency Act, which suspended defamation liability for internet publishers with regard to contributions added by others. Prior law had held traditional media liable for everything they published, and things like this did not happen. Now, thanks to Section 230, making it happen has become an industry. Society really doesn't want cost-free, liability-free defamation published worldwide under pseudonyms.

Absent change in that law, Professor Volokh may go on cluck, clucking, and tut, tutting until he wears himself out?but it's hard to imagine any solution which depends on overturning this stuff on a case-by-case basis. It would be interesting to see what EV could propose instead by way of an exemplary solution, one which could so frighten and intimidate fraudsters that they would all give up. Anyone think they can imagine how that could work without creating prohibitive collateral damage?

[NToJ]

"Society really doesn't want cost-free, liability-free defamation published worldwide under pseudonyms."

If your interpretation of Section 230 is correct, it appears that's exactly what American society wants.

"Prior law had held traditional media liable for everything they published..."

Not under NYT v. Sullivan. The problem was that under prior law, "publishers" were held liable for things they published (not just allowed to be posted). What "publishing" means gets complicated if you're running a message board or website, since whether you publish has something to do with editorial control. Under the old law, when a website operator deleted one out of one-thousand offensive, potentially defamatory comments, creative lawyers sued the website as a "publisher" (since their decision to delete content demonstrated an editorial decision). Since a decision to delete comments is not the same as publishing an editorial or article itself, the result was understandably considered unfair by just about everybody. That's why Section 230 passed through a noncontroversial, nearly unanimous vote. The only remaining controversy with Section 230 is that it insulates sexual traffickers from tort liability, which has nothing to do with defamation.

[David Nieporent]

The only remaining controversy with Section 230 is that it insulates sexual traffickers from tort liability,

Well, no, it insulates Internet websites from tort liability (as well as from state criminal law). "Sex traffickers," to the extent that they are more than a myth, are of course liable for their actions.

[David Hawisher]

I believe NToJ is referring to services like Backpage. Backpage seems clearly intended to profit from sex trafficking, but when sex is advertised on it, it hides behind ?230 to avoid responsibility.

[David Nieporent]

I know (well, surmised) what NToJ was referring to. But setting aside the rebranding of ordinary prostitution as "sex trafficking," Backpage is a classified ad website, not a "sex trafficker." That was my point. If it was actually a "sex trafficker," ?230 wouldn't do anything for it.

[NToJ]

I side with DMN on this, and I used imprecise language originally. On more prayerful reflection, 230 doesn't shield sex traffickers from tort liability. It merely insulates websites where sex trafficking occurs from being considered "publishers" for tort liability. It wouldn't protect a website provider who intentionally facilitates sex trafficking. And it might be more socially useful to shield websites from publisher liability since it will make it easier to catch actual sex traffickers.

I also think prostitution should be legal and have no issue with Backpage. I agree with DMN that prostitution is not sex trafficking, or at least not what I was referring to. I was thinking of human trafficking (with the end of selling humans to perform sex acts).

[David Nieporent]

And just to be clear, I of course despise actual sex trafficking; it's just that from everything I've read, it's almost non-existent in the U.S. Anti-prostitution activists (both private and law enforcement and politicians) have simply rebranded prostitution that way to make it sound scarier. When the FBI does big anti-sex-trafficking operations, they only seem to nab ordinary prostitutes.

[NToJ]

Also what's the alternative? What about a non-Section 230 world do you find so appealing? That every internet website deletes every comment that someone (anywhere) says is defamatory? Do you think President Trump should be able to shut down every message board discussion by asserting that the content is a lie? Threatening the "publishers" because they deleted a troll's comment, once, three years ago?

[Stephen Lathrop]

I liked previous publishing rules better. I think they should have been carried forward into the internet age, maybe with adaptations to accommodate new circumstances. Previously, before anything got published, a private person with skin in the game (not a government official) had to read it, and decide whether anything in it was potentially false and damaging. Doing it that way, apparently factual statements had to be evaluated or discarded, assuring that a far higher percentage of what did get published was true, whether damaging or not.

People suggesting that getting rid of Section 230 would be somehow harmful or revolutionary make no sense. A world without Section 230 (or anything like it) was the norm for literally centuries. We already know what would happen, because we know what did happen. And what did happen was that private publishing came to be regarded as a principal ornament of civilization.

Sure, without Section 230 the internet would be different than it is now. Big deal. What argument can anyone make that the internet we now see is the best one possible?

[jph12]

"I think they should have been carried forward into the internet age, maybe with adaptations to accommodate new circumstances."

They were. That's what Section 230 is.

[NToJ]

"Previously, before anything got published, a private person with skin in the game (not a government official) had to read it, and decide whether anything in it was potentially false and damaging."

The rub here is "published". If I host a message board I'm not publishing anything. It's just a place for others to post comments. It would be no different than having a white board in front of your house. The problem was that when message board hosters (i.e. not publishers) exercised even the slightest editorial control (by banning racist trolls, for example), clever lawyers declared that they had graduated to "publishers" for that reason. If the message board hoster never exercised editorial control, they weren't a publisher under the old law. Which had the perverse result that message board hosters were discouraged from policing bad conduct--including obviously defamatory material--since they were better off just exercising no editorial control at all.

"A world without Section 230 (or anything like it) was the norm for literally centuries."

Internet hosting was not the norm for centuries. It was barely the norm in 1996 when 230 was enacted, to address a very new (but obvious) problem that had developed using centuries-old law and applying it to modern mediums.

[David Nieporent]

Shorter Lathrop: would-be censors committing fraud in support of censorship is an argument for censorship.

[FlameCCT]

Ouch! ^^^

[Stephen Lathrop]

Sophistry being an art, that doesn't even rise to the level of sophistry. Private publishers rejecting your would-be contribution was never thought by anyone to be "censorship." You must suppose the people you are trying to persuade just aren't very bright.

[less lean eel son]

"Private publishers rejecting your would-be contribution was never thought by anyone to be "censorship.""

[citation needed]

So then, did you survey everyone throughout history who tried to publish, but was denied the privilege by the publisher for fear of being sued for libel? Even in cases where their submission for publication was denied for fear of the publisher being sued, despite the truth of the writing? None of those people understood themselves to have been censored?

Whose definition of censorship are you using?

Merriam Webster says to censor means:
"to examine in order to suppress (see suppress 2) or delete anything considered objectionable"

How does this not fit? Especially for truly libelous materials? Perhaps you could or should say that not all censorship is bad, but i can't see refusing to publish something for being defamatory as not fitting this definition.

At least *your* sophistry seems to be in good form. Citing a fact you made up, contradicted by a dictionary definition, about what 'no one has ever thought', and saying anyone who listens to your opponent is a dullard. geez

[Stephen Lathrop]

Your subsequent comment is a big improvement over this one, and I replied to it.

Just one point about this one, "censorship," in the context of this discussion, really ought to be understood in terms of speech freedom, the 1A, stuff like that. Your dictionary definition goes beyond that scope, so it's poorly chosen.

And now that I'm started, yeah, not publishing potential libel which might also be true is something traditional publishers do every day. They don't feel punished by that constraint, and you shouldn't either. You don't get that it's reckless to publish when you don't know whether damaging factual allegations are true or not?

[less lean eel son]

So you are trying to say that you ought to have said "no-one has ever considered this as 'true' censorship", the dictionary I picked up only has one sense of the word, so I don't know where you are finding this more narrow definition that makes your initial statement somehow correct and not an overstatement. When you tell me i picked the worng definition of the word (because it proves you wrong?) how about you dont just tell me its 'poorly chosen' put pick one out yourself? Whats your definition? and do you have evidence it is shared by anyone else?

What is potential libel that might also be true? Libel is false. I was talking about a true statement, known to be true by the author, but with truth value unknown by a publisher, who therefore censors. Then you come back with a straw man, and accuse me of 'not getting [something]?

I'm NOT arguing that the publisher who censors due to unknown truth/falsity are not being prudent. OR that they should publish what they don't know to be true, or even that the author being censored should be able to publish, when they know something to be true, though a publisher might not. I'm just saying those traditional publishers, in the case I've described, are censoring. Are you incapable of wrapping your head around this simple argument? (I gather that we are meant to sign off with an insult to someones intelligence, as you tend to do... or was that disingenuous/artful sophistry?)

[David Nieporent]

Sophistry being an art, that doesn't even rise to the level of sophistry. Private publishers rejecting your would-be contribution was never thought by anyone to be "censorship."

This isn't true even on its own terms, but it completely misses the point. We are not talking about a private publisher rejecting your contribution because it isn't very good or is repetitive or the like. (Actually, we aren't talking about private publishers at all; you continue to fail to understand the long-established legal difference between publishing and distributing.) We are talking about someone rejecting your work because of fear of liability imposed by the government. That is censorship even by your narrow understanding of the concept.

You must suppose the people you are trying to persuade just aren't very bright.

Hey, you said it.

[nonzenze]

Your (well-known at this point) opinions on S230 aside, what in the world does it have to do with the topic of fake defendants and fraud on the courts?

[jsfreason]

"...it's hard to imagine any solution which depends on overturning this stuff on a case-by-case basis." It's hard to imagine any solution that *doesn't* since every case of defamation depends on the facts which have a nasty tendency to vary from case to case.

[jph12]

"Society really doesn't want cost-free, liability-free defamation published worldwide under pseudonyms."

I'm guessing that the vast majority of the posts these people are trying to have removed are not actually defamatory. Just because they call them defamatory in a pleading does not actually make them so, especially when that pleading is filed as part of a lawsuit against a fake defendant.

[Bob from Ohio]

"vast majority of the posts these people are trying to have removed are not actually defamatory"

In fact most are actually true.

[OtisAH]

Exactly. At least one was trying to expunge public knowledge of their criminal pasts under the pretext of libel, possibly to make room for a new grift.

[less lean eel son]

You do seem to recognize a distinction between online and traditional publishers, but see unwilling to acknowledge the need for different treatment of online fora as compared to books and newspapers.

You appear to want everything to be posted online to be read and reviewed before it can be published. That seems like it would destroy a few of the features of online communication that every else seems to value.

The speed and cost of communicating on a website are valuable. Your demands that everything be read by a representative of the website before its posted on that website would slow down internet communication incredibly, and increase to cost of running a web forum of any kind immensely.

Instead of asking for things to remain as they were, perhaps- but not necessarily, with small changes to the rules, but not the changes adopted under section 230, it would be great to hear what your preferred scheme would be. as hard as it may be for you to imagine a solution to fraudsters abusing the courts, it seems equally hard to come up with a solution to clawing back sec. 230 to find a balance in liability between web fora and posters in a way that 'society wants'.

It's tiring to hear how terrible protections against defatmation are under sec 230 without hearing any realistic solutions. using the traditional rule online does not seem to be a viable solution. (see the reaction you are met with here.)

[Stephen Lathrop]

Thanks for a thoughtful response. I don't pretend to a fully worked out solution. There is a problem (that's why a reputation management industry sprang up in the first place), despite appearance of agreement on this blog. My notion is that reasoned discussion, with contributions from experts, might tend to unify and clarify opinion. I'm a bit disappointed by the response, but not by yours.

A few observations:

1. A deficiency of traditional publishing was that its expense put self-publication beyond the reach of many, and of course that's why the internet is so widely- and well-regarded as a corrective.

2. A problem, however, with opening up publishing without restriction is twofold:

1) People inexperienced with publishing tend to think of it as a variety of speech, with which they are familiar. That is mistaken, and greatly underestimates publishing's far greater potential for harm to others.

2) The rules (libel law) which people experienced with publishing put in place to cope with that are subtle, complicated, and not amenable to universal understanding.

My suggestion: ordinary people with opinions do need to be held responsible for damages they cause, but don't need to learn all that law. They just need to recognize a few danger signs for cases where publications might stray over into libel, and learn to trim their publications to exclude those. That's also how traditional publishers tended to manage the problem, by the way. Maybe that could be taught.

[OtisAH]

"If not for these ridiculous laws against murder, your honor, I wouldn't even be standing before you today."

[Lee Moore]

I can see the billboard ads springing up all over Arizona :

NEED A LAWYER ? CALL KELLY / WARNER
WE'RE NOT KNAVES WE'RE FOOLS !

[Scarecrow Repair & Chippering]

The notary ID used by Samantha Pierce is 20121234567.

One in a million (more or less)!

[JoeGoins]

Ten million.

[NToJ]

Well, technically that's true of any number that long.

[palmerlaw]

I don't know of anything similar in the Colorado Revised Statutes (e.g. CRS 12-55-101 et seq), but here in Illinois such a notary seal would be eye-catching (not only for the sequential numbers) because it lacks a "serrated or milled edge border" as strictly required of official notary seals. 5 ILCS 312/3-101(a)(4).

[Ted Levy]

"District court: The law is unconstitutional. Fifth Circuit: Reversed. It satisfies strict scrutiny. Can't expect dealers to understand each states' multifarious gun restrictions."

So ignorance of the law is an excuse after all ...

[JoeGoins]

You are mistaking criminal law mantra as being applicable in civil law.

[Michael Cook]

Another twist--someone in this country illegally quite often does not have a real identity. They often turn out to be using multiple fake names for different purposes, such as buying houses, accessing social benefits, marrying everybody they like, surfing porn sites, harassing you, etc. If they libel you, even though they may be financially secure and appear to have some assets somewhere, their name(s), social security number and location of assets can be difficult to sort out. Under Obama and in certain blue states still, government at any level may be less than helpful. They may even charge YOU with a crime!

I once actually won a significant malpractice lawsuit against an incompetent lawyer. He had a real identity, sure enough, but just you try to find the assets of a legally trained person who realizes that someday they are going down for the count.

[apedad]

I thought Trump's election win, Republican control of both the Supreme Court and Congress, and 33 Republican governors were supposed to cure those boogey-man fears in your head.

[Michael Cook]

Here in the deep blue state of Washington (especially along the coast and Puget Sound) you really wouldn't have much of a clue that Trump won or that Republicans control anything. For the lower classes, that may change a slight bit when the new IRS withholding schedules finally come out in March.

[Sigivald]

"Why, someone might use a porn site with a fake name! ILLEGALS AND STUFF!"

Seriously? What?

[Bob from Ohio]

I see the accused lawyers are using the Sgt. Schulz/Three Monkeys defense.

[Sigivald]

If Robert Smith isn't real, how did all those Cure albums get made, huh?

[Stephen Lathrop]

Eugene Volokh:That's where the fake-defendant lawsuits come in. Someone -- the plaintiff, the reputation management company, or the lawyer -- decides to file suit against a nonexistent defendant. The complaint is filed in court together with a stipulation from the "defendant" (actually filed by whoever is engineering this on the plaintiff's behalf) agreeing that the statement was false and defamatory, and agreeing to the entry of an injunction ordering the "defendant" to remove the statement. The court sees what appears to be agreement between the parties, and issues the injunction.

I have questions about that. How does that work? Isn't the disputed statement published over some name (or pseudonym) other than the one offered as the fake defendant? Why does a judge give that the time of day? Why doesn't the judge require the complainant to produce, in court, a person who at least alleges to be the author, and the source of whatever pseudonym the alleged libel was published over?

More generally, if we must have Section 230 liability protection for internet publishers, then how can it work if pseudonyms are freely allowed? I suggest that people demanding that regime, as a practical matter, seek to overturn the notion of libel altogether. They ought at least to be forthright about it. Why not just protect the publishers by saying, "Hooray, no more libel under law!"

[Gunstar1]

So you dont know how the scheme works, or how libel laws work with Sec 230 or how they worked before it regarding similar situations, but you know 230 is wrong seemingly because your definition of "publisher" differs from that in the law or that someone is being shielded by something but your not entirely sure how.

[David Nieporent]

Yes, that's kind of Lathrop's thing, if you didn't follow the VC back at the Washington Post or Volokh.com. He confidently expresses outrage about issues related to speech, defamation, and copyright, based on nothing more than what he surmises from having worked at a newspaper.

[nonzenze]

Why does it matter if the respondent claims authorship of the alleged liberal physically in court or by filing? It's truly a bizarre distinction to make.

As for the question, pseudonyms are not freely allowed or disallowed because there is no law dictating to online services the structure of their operations. In fact, it may shock you do know that many online services allow anonymous posting without a pseudonym (for instance, 4chan).

[Beldar]

The lawyers' defense is finger-pointing combined with a claimed ignorance on their part. But the standard under which they'll be judged by their state bar is a "knew or should have known" standard. I have a very, very hard time imagining a scenario that could involve fake clients and fake notaries that wouldn't cross the "should have known" standard if those were involved in any significant percentage of their supposed "engagements." Banks and investment companies have a "know your customer" rule, but that's certainly already implicit in the canons of legal ethics.

[Michael Cook]

I will take Beldar's comment on fake this or that and race right off topic. Americans live in a rare atmosphere of fake news, which often in a narrow sense is not untruthful news, it is just a tiny bit of news which favors one political party which gets spun to its elastic maximum and then serial amplified by ABC, CBS, NBC, MSNBC, the Associated Press, Scripps Howard News Service, BBC, PBS, NPR., and of course CNN.

Then on the other hand, any factoid or any obvious analysis which favors in the slightest fashion gets buried, stonewalled, and ignored. The only way you can figure out that the above "news" organizations even know about Republican talking points or any information revealed exclusively on Fox News is if you carefully listen to their immediate rebuttals of certain facts they have never reported on and then reverse-engineer their narratives to figure out what they are talking about.

Professed ignorance is a major component of today's "journalism" on the Old Establishment end of town. Watching tonight's SOTU address, I'd guess a New Establishment is born.

[ThePublius]

I'm curious: was the fake notary stamp actually a stamp applied to a physical document, or was it a photoshop job?

I am not a lawyer, but I would have assumed that it was the duty of someone in the court, perhaps the court clerk, to authenticate any documents that are submitted. A fake notarization should have been stopped at the door, and this case would never have happened, and the counterfeiters could have been prosecuted; or, at least, summoned to account for the forgery.

For context, to explain my sensitivity to this aspect, I'm in the process of collecting the documentation required for dual citizenship, to claim a citizenship right in another country. Both the US and the other country are parties to the Apostille Treaty. You would perhaps not believe the levels of certification, notarization, and apparent recertification required for the documents, the number of agencies involved, and the cost, to produce an acceptable, physical document. How can this be treated so seriously, and the validity of court documents be so casually passed along?

[David Nieporent]

How can this be treated so seriously, and the validity of court documents be so casually passed along?

Because our legal system is designed to rely on the adversarial process to test the validity of information or material submitted to the court.

[Michael Cook]

And the downside of that would be that lawyer time to authenticate every exhibit that might come in equals a lot of research hours equals a lot of money necessary if you want to survive in court.

[ThePublius]

I can't say that I entirely agree with that. There are many administrative aspects of the courts, and justice system, that do not involve an adversarial process. We are not talking about evidence.