Attempt to Vanish My Article About Attempt to Vanish My Article About Attempt to Vanish Other Articles

I wrote about Hyman v. Daoud, a case that sought the takedown of various online items—including mainstream media articles—in November 2020. I then wrote in 2021 about an attempt to get Google to deindex my article (among others), aimed at causing it to disappear from search results. And four days ago Google got the following takedown request from someone, seeking to deindex my 2020 and 2021 articles, plus various other media articles:

Re: Unknown

NOTICE TYPE: Court Order

Explanation of Court Order

Pursuant to the confidential , court order, which states the following:

FURTHER ORDERED AND ADJUDGED that within ten (10) of being furnished a copy of this Order any internet-related services, internet service provider, host provider and/or search engine shall remove and cause to be removed from any Site (including the web sites themselves and all URLS and links, even if they change) all statements, posts, social media, or videos or documents related to directly or indirectly to this lawsuit, and/or Kelly Hyman, Paul G. Hyman, Jr., Kaylee Hyman and Zachary Hyman and/or any website or posting defamatory, slander, or any statements against Kelly Hyman, Paul G. Hyman, Jr., Kaylee Hyman and Zachary Hyman on the internet, television, radio, print or any other forms of media including, but not limited to the Sites …

TARGETED URLS:

1. http://conlinpa.com/2016/04/03/hyman-v-daoud/
2. https://beforeitsnews.com/libertarian/2020/11/an-odd-response-from-one-of-the-lawyers-in-the-kelly-hyman-v-alex-daoud-case-2763652.html
3. https://reason.com/volokh/2020/11/24/overbroad-injunction-used-to-try-to-vanish-articles-about-daughters-property-lawsuit-against-father/
4. https://reason.com/volokh/2021/02/19/attempt-to-vanish-my-article-about-attempt-to-vanish-other-articles/
5. https://therealdeal.com/miami/2014/11/18/judge-former-miami-beach-mayor-can-stay-in-his-home/
6. https://www.cbsnews.com/miami/news/notorious-father-faces-eviction-by-daughter/
7. https://www.dailymail.co.uk/news/article-2672285/Disgraced-former-Miami-Beach-mayor-court-battle-daughter-million-dollar-home.html
8. https://www.miamiherald.com/news/local/community/miami-dade/miami-beach/article3985285.html

The order I wrote about was attached to the request. Though the request claims the court order is confidential, that's not true: I just confirmed that the order is available on the Miami-Dade County court records site (search for local case number 2012-044972-CA-01 and go to docket number 38). Based on my research on how Google deals with such matters, I very much doubt that Google will actually deindex my articles based on this request.

I e-mailed Ms. Hyman to ask her for some more explanation for what was thought to be defamatory or confidential here. I can't be sure that she was the one who submitted this request, directly or through an agent, but she would seem to be the likely beneficiary; and in 2020 she had e-mailed me to ask me to remove my post, though I said no to that request. I have not heard back from her, but if I do, I will post an update.

Here's the original post:

[* * *]

Alex Daoud had been mayor of Miami Beach from 1985 to 1991, but was then convicted of bribery and various other charges. Some years later, he arranged a real estate deal together with his daughter, Kelly Hyman (a lawyer and occasional political commentator)—but that went bad, and led her to sue him. The case dragged on for years, and unsurprisingly got a good deal of media coverage, such as in the Miami Herald, on the local CBS affiliate, and in the Real Deal (South Florida Real Estate News).

Hyman also alleged that Daoud or people working with him had posted various derogatory things about Hyman and her family (which includes her husband Paul Hyman, a retired federal bankruptcy judge), at sites named "atrociousattorney.com," "avariciousadulteress.com," "despicabledaughter.com," and the like. As a result, the parties entered into an Agreed Order to Take Down Internet Posting Related to Kelly Hyman, Paul G. Hyman, Jr., [and other family members], in which Daoud was ordered to remove such posts.

So far, that's fine; parties are generally entitled to enter into such agreements. But here's the twist: After imposing the obligations on Daoud (who was a party to the agreement), the order went on to purport to bind third parties, who weren't parties (and to my knowledge weren't even notified that their rights were being adjudicated):

FURTHER ORDERED AND ADJUDGED that within ten (10) of being furnished a copy of this Order any internet-related services, internet service provider, host provider and/or search engine shall

i. remove and cause to be removed from any Site (including the web sites themselves and all URLS and links, even if they change) all statements, posts, social media, or videos or documents related to directly or indirectly to this lawsuit, and/or [the Hymans] and/or any website or posting defamatory, slander, or any statements against [the Hymans] … including, but not limited to the Sites [listed earlier in the order].

ii. remove and cause to be removed any derogatory references to Kelly Hyman including, but not limited to any reference to Hyman as an "adulteress," "blackmailer," "whore," "despicable," "liar," and/or any derogatory and/or negative comment about Kelly Hyman.

iii. remove or cause to be removed any derogatory reference to Paul G. Hyman, Jr., including, but not limited to any reference to him as "prenup paul," any judicial complaint and/or any derogatory comment about him including but not limited to any alleged misconduct.

iv. remove and cause to be removed statements, documents, videos, and/or postings about this lawsuit, Kelly Hyman v. Arnold Daoud; related to the house located at 1750 Michigan Ave, Miami Beach, Florida; any communication between Kelly Hyman and Arnold "Alex" Daoud; and/or any libelous, defamatory, and/or slanderous websites, videos, internet posts and/or social media posts about [the Hymans], which was or is created directly or indirectly by Daoud.

And Google has indeed been asked, on the strength of this order, to deindex not just items that may have been posted by Daoud, but also mainstream media articles (see here and here):

https://www.miamiherald.com/news/local/community/miami-dade/miami-beach/article3985285.html
https://www.miamiherald.com/news/local/community/miami-dade/miami-beach/article1972934.html
https ://miami.cbslocal.com/2014/06/27/notorious-father-faces-eviction-by-daughter/
https://therealdeal.com/miami/2014/11/18/judge-former-miami-beach-mayor-can-stay-in-his-home/
https://therealdeal.com/miami/2014/06/27/former-miami-beach-mayor-battles-daughter-over-home/
https://www.law.com/dailybusinessreview/almID/1202676995842/Why-Judge-is-Dismayed-and-Disappointed-Over-1M-Fight-Between-Father-Daughter/

And Google was also asked to deindex two items that criticize Judge Paul Hyman, which do not appear to be linked to Daoud, and which in any case consist of copies of documents filed in other matters:

http://www.judgewatch.org/CJA-members/Gwynn/gwynn-exhibits%201-9.pdf
https://www.yumpu.com/es/document/view/13292106/judicial-complaint-against-judge-paul-g-hyman-by

This appears to be the court's fully approving an order proposed by Ms. Hyman's lawyers.

I expect that Google will see through this, and will realize that it's not actually bound by the order (despite what the order says), because it had never been made a party to the case (and wasn't acting in concert with a party). And I expect that Google will also conclude that it shouldn't deindex the mainstream media pages (and the criticisms of Judge Hyman) even voluntarily, because there's no basis for thinking that there's anything false and defamatory there.

Still, I think the court erred in approving the overbroad agreed order, which on its face purports to bind entities that had never agreed to it. (I have e-mailed Kelly Hyman and her lawyers to get their side of the story, but haven't heard back from them.) [UPDATE: See here for an odd response I got from one of the lawyers after I put up the original 2020 post.]

Comments

[Rev. Arthur L. Kirkland]

Any tips on how to unvanish Artie Ray Lee Wayne Jim-Bob Kirkland -- or any of the comments you scrubbed for making fun of conservatives or using mean words to describe right-wingers?

[Aubrey LaVentana]

Cope as best you can, Reverend. The rain falls on just and unjust alike.

[ReaderY]

Given that there was a genuine court order in this case, why aren’t you and Google obligated to follow it, however patently unconstitutional, unless/until vacated by the judge or overturned on appeal?

[Soronel Haetir]

Because that judge, with the case before him, has no jurisdiction over Google or Prof. Volokh.

[Eugene Volokh]

Right: An injunction "shall be binding on the parties to the action, their officers, agents, servants, employees, and attorneys and on those persons in active concert or participation with them who receive actual notice of the injunction," Fla. R. Civ. P. 1.610 -- but it's not binding on outsiders unconnected with the parties.

[ReaderY]

Well, you’ve certainly received actual (if not formal) notice of the injunction. Your post proves that. You may have wanted notice of the prior proceedings so you could object, but the statute doesn’t say that. And Kelly Hyman seems to believe, and more importantly, seems to have persuaded a judge, that you were acting in concert with her father.

I recognize the portion of the injunction you quoted doesn’t explicitly say that you were.

[Savagely Average]

"Kelly Hyman seems to believe, and more importantly seems to have persuaded a judge, that you were acting in concert with her father."

What makes you say that? The first part of the order references people acting in concert with the defendant. If the order stopped there you'd have a point - and the order would be much more defensible.

But the second part of the order is a dragnet which orders service providers to "remove and cause to be removed . . . any statements against Kelly Hyman[.]" Since the takedown request targets not just Reason but other mainstream media outlets like Daily Mail and Miami Herald it's presumably based on that second part of the order.

[David Nieporent]

.

Well, you’ve certainly received actual (if not formal) notice of the injunction.

Read it again:

"those persons in active concert or participation with them who receive actual notice of the injunction"

Yes, he received actual notice, but he's not in active concert or participation with them. Although he is involved in a Conspiracy, or so I hear.

[Eugene Volokh]

I wrote about the case after the injunction was issued. The court never concluded, nor was ever asked to conclude, that anything I did was in concert with the father -- at the time of the decision I hadn't written anything about the case (and indeed, if I recall correctly, hadn't even heard about the case).

[ThePublius]

I would imagine that receiving notice would mean one was informed by the court, and legally noticed that, 'hey, buddy, you are a party to this and must abide by this order.' Simply hearing about a case, finding out about it somehow, or someone telling you about it doesn't amount to legal notice. No?

[Zarniwoop]

Not quite. There are two separate groups of people that can be bound:
Group 1) "parties to the action, their officers, agents, servants, employees, and attorneys"
and
Group 2) "those persons in active concert or participation with them who receive actual notice of the injunction"

Parties to the action (Group 1) are presumed to have received notice, because they're, well, parties, agent, lawyers, etc.

Group 2 - who are not "parties etc" of Group 1 - are bound if and only if they receive actual notice.

But receiving actual notice (whether after the fact, as in Eugene's case, or even during pendency of the case) does not transform someone in Group 2 into Group 1.

So someone like Eugene still has to meet the requirement of Group 2: being "in active concert or participation" with Group 1.

Eugene is plainly not a member of group 1.

Eugene is also not a person "in active concert or participation" with Group 1, and is thus not a member of Group 2.

He is therefore not bound despite knowing about the injunction.

QED.

[Zarniwoop]

Which is a longer-winded way of saying I agree with you, but that you have to walk through all the steps to get there 🙂

Dang you, lack of edit function!

[David Nieporent]

.

No?

No. Actual notice means just that: that you have knowledge of the order. Assuming the court has jurisdiction over you, you can't say, "Well, yes, I heard about the order but not from the court so it doesn't count."

(Of course, formal service of the order on you helps establish that you do have actual notice, so you can't deny it later and say, "I never knew anything about that.")

[Bwaaah]

I'm just saying I've been reading these posts by EV. I find them interesting, and it sure looks like shenanigans to me. The order seeks to remove references to Kelly Hyman, Paul G. Hyman, Jr., Kaylee Hyman and Zachary Hyman.

So weird, audacious actually, is that the judge who issued the order, Michael Hanzman, wrote it as if he could compel anybody/everybody on the internet, anywhere/everywhere, to hide a whole lot of stuff about Kelly Hyman, et al....

Case No: 2012-044972-CA-01 Page 4 of 7
FURTHER ORDERED AND ADJUDGED that within ten (10) of being
furnished a copy of this Order any internet-related services, internet service provider host provider and/or search engine shall: [...] remove and cause to be removed from any Site (including the web sites themselves and all URLS and links, even if they change) all statements, posts, social media, or videos or documents related to directly or indirectly to this lawsuit [...]

[Tosta Dojen]

> the judge who issued the order, Michael Hanzman, wrote it as if [...]

In his partial defense, he didn't write it—Ms. Hyman's attorneys presented it as a proposed order to which both parties had agreed. Eugene has written about this problem before: when a judge is told that the parties have agreed to something, they often don't scrutinize it for problems.

[ObviouslyNotSpam]

Yup, but my fist thought was "senior judge?"

I see Judge Hanzman is not so senior that he couldn't become a former judge in private practice earlier this year, so I do wonder what his excuse is...

[Eugene Volokh]

"Senior judge" generally refers to a judge who is retired from full-time judging, but is available to hear a reduced calendar. That's very common in federal courts, and also in many state courts, apparently including Florida courts.

[Andrew Dhuey]

Continuing to submit takedown requests that lead to more posts here about those takedown requests is a questionable tactic if the goal is to make the underlying materials less visible on the internet.

It's like suing a photographer over a pic of your Malibu seaside estate that hardly anyone ever saw. There might be a backfire effect.

[mulched]

Nicely done. Every takedown request just makes the list longer and the issue more visible. How many more until they learn?

[ObviouslyNotSpam]

Can just anyone submit a takedown request?

If I didn't have a full-time job already...

[Bill R]

"that within ten (10) of being furnished"

Within ten what? Seems sketchy.

Patient: Tell me straight, Doctor. How long do I have?
Doctor: Ten.
Patient: What do you mean? Ten months? Ten weeks?
Doctor: Nine. Eight. Seven...

[Eugene Volokh]

OK, that made me laugh out loud. Maybe it shouldn't have, but it did.

[Absaroka]

Doctor says, “Test results are in, and I’ve got some bad news.”
“Well make it quick, I don’t have all day.”
“Oh…did the nurse already tell you?”

[ThePublius]

Doctor says "I only give you six months to live." Patient say, "Oh, my, I don't even think I could pay my medical bills in six months!" Doctor says, "O.K., I'll give you another couple of months."

[BillyG]

Just means you're human and have a sense of humor like most of us here.

[Stephen Lathrop]

Professor Volokh, help me out please. This takedown order looks sketchy, and I follow your argument with regard to the injunction. However, and maybe I misunderstand something, is this about libel? If so, and if that has already been proved legally, or at least accepted as a premise for a settlement, why do you suppose you have any 1A right to republish it at all? I thought libel was not protected speech. I noticed that in a recent post where you detailed types of unprotected speech, such as true threats, etc., libel was not on the list. That surprised me too. Any help sorting this out would be appreciated.

[Absaroka]

What, in any of the posted links, makes you think this is about libel?

For example, here is one of the articles that they tried to get de-indexed per EV's original post (that is linked in the second word of this post). What does your experienced editor's eye see there that is libelous?

As I understand the case, Alice sues Bob. Alice and Bob can agree to never mention they sued each other, but they can't get a court to order other people to never report, accurately, that Alice sued Bob.

[ObviouslyNotSpam]

Except, that's just what they did.

[WuzYoungOnceToo]

maybe I misunderstand something

That's always a safe bet.

[Agammamon]

Talking about someone's libel is still protected.

[David Nieporent]

.

maybe I misunderstand something

Always a safe bet, when we're discussing law, and especially defamation.

If so, and if that has already been proved legally,

Well, see, there's one key misunderstanding on your part. Nothing has been proved.

or at least accepted as a premise for a settlement, why do you suppose you have any 1A right to republish it at all? I thought libel was not protected speech.

1) "Accepted as a premise for a settlement" has no legal significance of any sort, to anybody. (Except of course the parties who entered into that settlement, who are bound by it like any other settlement.)

2) A person who has been found liable for defamation can be ordered not to say that thing again. That finding, and that order, has no effect on anybody except that person and people acting in concert with that person. A key failure on your part is your failure to understand that a person is found liable for defamation for saying X; that doesn't make "defamation" a property of the statement X. Nobody else is bound by that finding.

To put it concretely: if I say, "Stephen Lathrop molests puppies," and you sue me for it and I fail to provide adequate evidence that it's true, I can of course be found liable for defamation. But that is not a finding that the statement is inherently false. The day after that verdict — or at any other time — Prof. Volokh can say, "Stephen Lathrop molests puppies." Assuming that he is not acting in concert with me, you cannot argue, "But I already proved it's false, so the Prof. can't say that." You have to sue him, and he gets his own chance to defend the statement, before you can get any relief against him.

Note that this isn't unique to defamation. When you sue A on any cause of action, the finding (or settlement) in that case is binding on you and A, but not on B, C, or D, if they're independent of A.

[NvEric]

People, judges and presidents too, can do whatever they so choose to do regardless of law and it's up to others to challenge such actions. If no challenges are made, then law is mute, society is mute, government is a pointless exercise holding the lawful only.

And, with examples of lawless behavior growing, degeneracy grows. And, when enforcement of law is disregarded, a further degeneracy ensues. In time, when these degeneracies reach a certain point, implosion or resurrection is loosed upon the People as each decides their fate. Situations always resolve into choices.

[ThePublius]

Did you really mean 'mute," or perhaps moot?

[BillyG]

Mute makes sense. Mute as in "says nothing". Moot would be "overcome by events".

"If no challenges are made, then law is mute.." Law is mute because the Law has said nothing.

[apedad]

Prof. Volokh,

Perhaps sending a letter to the lawyer would get better results.

We all get all kinds of email and it isn't immediately recognizable then -- woosh - straight to the dump.

[Eugene Volokh]

Well, I tried that when the issue first arose in 2020, and didn't have much success; see this post.

[Zarniwoop]

perhaps apedad is curious if a good ol'fashioned paper letter (maybe even return receipt requested) would get a different result than "I don't know you, blocked"

I'm skeptical it will work, but if you want to give Messrs. Lebedeker & Sholl, Esq. the complete benefit of the doubt ...

[Eugene Volokh]

Perhaps -- I don't think I have any obligation to do that, after I've already e-mailed the person; and I doubt that it will yield much result in any event.

[Zarniwoop]

Totes agreed, it's not on you to go that extra mile.

[Agammamon]

That sounds like an awful lot of work an ISP or Google would have to do in order to comply.

Not only remove specified URLs but to actively scan the contents of the internet for these 'references' and block them.

I don't think even Google could manage that.

[Agammamon]

Reading this - its even requiring that these ISP/search engines *remove it from individual's websites'.