The Volokh Conspiracy
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Lawsuit Against Google for Accurately Reporting Negative Stories About Plaintiff Dismissed
Plaintiff claimed that the search results violated his "right of publicity," and also that the output was defamatory because it "uses a 'negative algorithm' that promotes negative stories about Garmon while suppressing positive stories about him—or, at least, pushing the positive stories down the list of search results."
From Judge Corey Maze (N.D. Ala.) yesterday in Garmon v. Google LLC (note that, though plaintiff is pro se, he is a lawyer, and indeed had represented Senate candidate and former Alabama Supreme Court Justice Roy Moore):
Trenton Garmon filed his third complaint against Google LLC and asks the court to enjoin Google and award him $8 billion….
Google, as likely all readers know, is an internet search engine…. If you … type "Trenton Garmon" into Google's search bar, you will receive images, links, and articles about the plaintiff. According to Garmon, this shows Google's unauthorized use of his indicia that is both defamatory and violates Alabama privacy laws. So Garmon sued Google. The court dismissed Garmon's first amended complaint for failing to state a claim and gave Garmon a chance to refile and fix his pleading deficiencies. Garmon has since filed a third amended complaint, which Google moves to dismiss with prejudice….
Garmon alleges … that Google violated Alabama's Right of Publicity Statute …:
[A]ny person or entity who uses or causes the use of the indicia of identity of a person, on or in products, goods, merchandise, or services entered into commerce in this state, or for purposes of advertising or selling, or soliciting purchases of, products, goods, merchandise, or services, or for purposes of fundraising or solicitation of donations, or for false endorsement, without consent shall be liable under this article to that person, or to a holder of that person's rights
By its plain text, the ARPS only prohibits commercial use of a person's "indicia of identity" without his consent in one of four ways:
- Using someone's identity "on or in products, goods, merchandise, or services entered into commerce in [Alabama]";
- Using someone's identity for "advertising or selling, or soliciting purchases of, products, goods, merchandise, or services";
- Using someone's identity for "fundraising or solicitation of donations"; or,
- Using someone's identity for "false endorsement."
While Garmon alleges facts that would prove he did not consent to Google using his name or image, Garmon doesn't allege facts that would prove Google did so for one of the four commercial reasons enumerated in the statute. So Garmon fails to plead facts that would result in a viable claim. See Reg'l Prime Television v. South (Ala. 2024) (reversing trial court's denial of television network's motion for a judgment of law when plaintiff failed to offer evidence that television show used her deceased husband's identity "for the purposes of trade" as required for a claim under the ARPS)…. Because Garmon fails to plead a viable claim, the court does not address Google's alternative arguments that Garmon's claim is time-barred or would violate the First Amendment….
Garmon next accuses Google of the state common-law torts of defamation and defamation per quod. In short, Garmon alleges that Google uses a "negative algorithm" that promotes negative stories about Garmon while suppressing positive stories about him—or, at least, pushing the positive stories down the list of search results.
As the court previously explained, while Garmon might prove Google highlighted pictures and stories that shed a negative light on him, defamation claims require falsity: "Garmon does not plead facts that would prove the articles are false—a necessary element of defamation." But Garmon again fails to allege that Google published any false facts about him….
In his last count, Garmon asks the court to order Google to remove all pictures and mentions of Garmon and enjoin Google from continued use of his indicia of identity…. Because the court must dismiss Garmon's substantive counts for failure to state a viable claim, the court must again DENY his request for injunctive relief tied to those counts….
You can also read an earlier decision in the case; if you're interested in Garmon's arguments, you can see his Complaint and his arguments responding to the motion to dismiss. Eric P. Schroeder (Bryant, Cave, Leighton, Paisner, LLP) and James P. Pewitt (James P. Pewitt LLC) represent Google.
