The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
A court recently found that certain Hoax statements
Demand is hereby made for you to remove the link below immediately.
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.
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.