The Online Public Square: Website’s Publication of Allegations of Cult Activities Falls Within Anti-SLAPP Statute Protections, California Appellate Court Holds

Guen v. Pereira, et al., No. A151569 (Cal. App.) Unpublished opinion of the First California Appellate District, Division Five, November 16, 2018.

Defendant Pereira and others created an online website which accused acupuncturist Guen of inappropriate sexual behavior and of operating a cult. Commentary and rebuttal were not permitted on the website. Defendants succeeded in obtaining dismissal of Guen’s claims under the anti-SLAPP law, as their online statements provided consumer information in a public forum notwithstanding the absence of opportunity for rebuttal.

Guen v. Pereira (Cal. App., 2018)

Privacy Interests No Shield Against Copyright Infringement Claims

Malibu Media v. Doe, No. 18cv5611 (S.D.N.Y.) November 16, 2018.

Malibu Media was able to make a preliminary determination that the holder of a particular Internet Protocol address had accessed and downloaded its copyrighted work through the BitTorrent file sharing program. Geolocation information situated the IP address h  older within the court’s jurisdiction. Malibu Media sought and obtained a subpoena to Internet Service Provider Time Warner, seeking disclosure of John Doe’s name and address. Notice was provided to Doe, who moved to quash on undefined privilege grounds. The court rejected this argument, holding that although the U.S. Supreme Court has recognized a right to anonymous speech, such protections do not attach to unlawful copyright infringement.

Malibu Media, LLC v. Doe (S.D. N.Y., 2018)

Online Offensive Speech Not Presenting Actual Imminent Threat Cannot be Restrained, New York Court of Appeals Concludes

Brummer v. Wey, No. 153583/15 (N.Y. App.) November 15, 2018.

Plaintiff participated in an adjudication before the Financial Industry Regulatory Association (FINRA) in which defendants were forever prohibited from practice as broker-dealers. Defendants posted online derogatory statements and images, including allusions to lynching, about plaintiff, an African American.

Plaintiff obtained a temporary restraining order and preliminary injunction of the postings, including orders to remove postings, which the present order dissolves.

As distasteful as the material may be, and without regard to whether the plaintiff will prevail on a libel claims, the court could not perceive an actual threat to plaintiff, nor could it find grounds to support the prior restraint of speech that the injunction presented.

Brummer v. Wey , 2018 NY Slip Op 7843 (N.Y. App. Div., 2018)

Private Rights, Public Trials: Accused Virginia Polytechnic Institute Student May Proceed Anonymously in Civil Suit

Doe v. Virginia Polytechnic Institute and State University, No. 7:18-CV-320 (W.D. Va.) November 13, 2018.

Doe was expelled after having been found to have been in violation of campus alcohol and sex policies, Doe commenced suit in federal court against the school and its officials for deprivation of federal and state due process rights, under Title IX, and for negligence and breach of contract. The trial court has permitted Doe to proceed anonymously following a five part inquiry into factors intended to examine the balance between potential harm to Doe from failure to allow proceeding anonymously versus failure to proceed in accordance with public trial g  uarantees. The court   agreed with Doe that the request was not one made merely to avoid criticism, that the risks of retaliation against Doe and his accuser were high, that notwithstanding legal adulthood Doe may remain immature, that the government will suffer no harm by granting the request, and that there is no risk of harm to defendants from allowing anonymous proceedings because all involved were aware of true identities and would not be hampered in preparing for trial. Although the court found that the claims against individual defendants weighed against proceeding anonymously, taken together the court was persuaded that Doe’s privacy interests were sufficient to overcome the presumption of public trial proceedings.

Doe v. Va. Polytechnic Inst. & State Univ. (W.D. Va., 2018)

No Rubber Stamp Comity in Attorney Discipline: Fourth Circuit Vacates Unexplained Order Adding Federal Reciprocity to State Reprimand

In re Dyer, No. 18-1645 (4th Cir.) November 9, 2018.

Attorney Dyer was reprimanded for failing to provide information to a state disciplinary body relating to a grievance filed against him. Dyer asserted that Maryland’s confidential grievance proceedings violate First Amendment free speech protections. Dyer made the same assertion of unconstitutionality to a federal show cause order concerning reciprocal discipline, which argument he reiterated on appeal to the Fourth Circuit. Without commenting on the merits of Dyer’s First Amendment claim, the Fourth Circuit vacated the district court order, noting that the order failed to disclose the basis on which it was entered.

In re Dyer (4th Cir., 2018)

Now, Junior, Behave Yourself! White House Restores Reporter’s Press Pass While Insisting All Conform to Newly Promulgated Rules of Decorum

Cable News Network and Abilio James Acosta v. Donald J. Trump, President of the United States, et al., No. 18-02610 (D. D.C.)

Today the White House advised Cable News Network and its reporter, Abilio James Acosta, that Acosta’s hard press pass is restored.  Granting restoration obviates the need for the injunction granted to plaintiffs and for further litigation  plaintiffs have submitted a notice of voluntary dismissal without prejudice to the court.

The case commenced following a press conference contretemps between the President and Acosta.  Acosta persisted in asking questions while the President indicated that questioning was unwelcome.  Following the press conference, Acosta’s credentials allowing access to the White House (the “hard pass”) were suspended.

CNN and Acosta sought and obtained a temporary restraining order restoring his hard pass based on violation of the Fifth Amendment due process clause, which protects the reporter’s liberty interest in his First Amendment activity as a reporter.  The court found that the White House had failed to provide Acosta with notice and an opportunity to address the issues requiring suspension, and that the White House’s after the fact rationales for suspension failed to satisfy those constitutional due process requirements.

The court did not address any of the First Amendment issues CNN and Acosta raised.

Concomitantly with granting Acosta and CNN the relief they sought, the White House has promulgated rules of behavior for members of the press, noting with regret that historically there has been no need for such measures.

No official copy of the rules has been located.   The rules are reported to limit reporters to one question and require reporters to ‘yield the floor’ to other reporters once that one question has been asked or once any follow-up questions, permitted at the executive’s discretion, are asked.  Failure to adhere to the rules may result in suspension or revocation of press credentials.

Plaintiffs claim victory here, yet one wonders whether it will prove to be of the Phyrric sort.  The publication of rules of behavior for the press corps deprofessionalizes the entire group.  While encounters between the administration and the press do not always go smoothly, the healthy tension between the interests of the two institutions, and the often lively exchanges this tension invites, should not be squelched, lest the free flow of information be stifled, to the detriment of all.

The notice of dismissal and a copy of the transcript of the order granting the temporary restraining order follow.

CNN v. Trump Voluntary Dismissal

2018 11 16 CNN v. Trump Transcript Order Granting T.R.O.


Nomen Est Omen for Strike 3 Holdings, LLC: D.C. Federal Court Decries Use of Federal Courts to Extort Pornography Pirates, Denies Subpoena to Internet Service Provider to Obtain Defendant’s Identity, and Dismisses Suit

Strike 3 Holdings, LLC v. John Doe, subscriber assigned IP address, No. 18-1425 (D. D.C.) November 16, 2018.

Pornography may be protected by copyright, and when online consumers unlawfully share materials with others, litigation ensues.  As initially online infringers may only be identified by internet protocol addresses, plaintiffs such as Strike 3 often seek pre-discovery conference subpoenas to internet service providers to obtain names of defendants.  The potential defendants are often granted permission to move to quash anonymously.

Infringement cases are dismissed if no one is identified, but if someone is identified, settlement is much to be preferred than having one’s name crop up in connection with the infringed product on internet searches.

These procedures permit plaintiffs to assert their rights and defendants to retain their privacy, yet a federal judge in the District of Columbia has just put the kibosh on fuzzy identification and on flooding the court’s dockets with hundreds of claims.   

More than a suggestion that unmasking a particular internet address will lead to discovery of a defendant amenable to suit must be shown for a pre-discovery subpoena to issue, the court has held.  The court could not find that plaintiff had provided any facts or persuasive argument that would merit encroachment on the potential defendant’s privacy rights.

The court noted that it remains open to requests for subpoenas where sufficient specificity can be shown.  

Strike 3 Holdings, LLC v. Doe (D. D.C., 2018)


Got Facts? U.S. District Court in Montana Holds State Restriction on Labeling Impinges on Milk Company’s Commercial Speech Rights

CORE-MARK INTERNATIONAL, INC. v. The Montana Board of Livestock. No. CV 15-05-H-SEH  (D. Mont.) November 1, 2018.

The State of Montana requires that milk be labelled to reflect the date 12 days after Pasteurization.   This “sell-by” date bears a reasonable relationship to promoting public health. The state’s prohibition of any dates or information relating to the quality of the milk — the “single date” rule — cannot be supported by speculation that more information, or the use of more than one date in connection with labeling information, would cause the public to become confused.  A hypothetical harm is not sufficient to support an intrusion on the milk company’s First Amendment interests.

Core-Mark Int’l, Inc. v. Mont. Bd. of Livestock (D. Mont., 2018)

Candidate Excluded from Educational Television Election Debate Cannot Establish Violation of First Amendment Rights

LIBERTARIAN NATIONAL COMMITTEE, et al. v.. TERRY HOLIDAY, et al., No. 17-6216 (6th Cir.) November 2, 2018.

A Kentucky educational television station decided that its practice of permitting any candidate for public office to participate in its broadcast debates had produced some undesirable results as non-serious individuals or individuals seeking only a television appearance failed to contribute to the debates substantively.  The station decided that it would limit participants in a debate among candidates for the U.S. Senate to those meeting certain qualifications that would demonstrate at least a minimal chance of winning the vote of one in 10 Kentuckians. . Candidate Patterson failed to meet those criteria.

As Supreme Court precedent has established that educational television stations may, consistently with their obligations to act in the public interest, apply uniform non-viewpoint discriminatory criteria to speakers without violating the First Amendment, and as no evidence of discrimination against Patterson’s viewpoints had been adduced, the United States Court of Appeals for the Sixth Circuit upheld the trial court’s determination that no basis could be found upon which to abrogate the television station officials’ qualified immunity.

Libertarian Nat’l Comm., Inc. v. Holiday (6th Cir., 2018)

Getting to Know John Doe: Federal District Court in Connecticut Permits Pre-Discovery Conference Subpoena to Internet Service Provider to Obtain Disclosure of Alleged Infringer’s Name and Address

Malibu Media, LLC v. Doe, No. 18-CV-1510 (D. Conn.) November 2, 2018.

The United States District Court in Connecticut has granted Malibu Media’s request to subpoena an Internet Service Provider (ISP) to obtain disclosure of the name of an individual alleged to have infringed on Malibu Media’s copyright to films by downloading and distributing the films without authorization. Investigation identified use of an ISP address and a distribution program directly correlated in time and date to the infringing activity.  A subpoena was sought to compel the ISP provider to disclose the identity of the ISP address holder, without which Malibu Media would be without a means to protect its intellectual property interests.

The court noted that an alleged infringer cannot interpose the First Amendment right to anonymous speech to defeat the copyright owner’s legitimate interest in protecting his property.  Neither can an internet user complain of Fourth Amendment violations where he has voluntarily provided information to an ISP. Nonetheless, the court observed, as an infringer may find settlement preferable to public disclosure of alleged involvement in unlawful distribution of copyrighted pornography, the court cautioned Malibu Media that any information about the alleged infringer it might obtain could be used only for purposes of the case before the court.  Moreover, the subpoenaed ISP must in turn notify its subscriber of the subpoena, who would be permitted to move to quash the subpoena or to request to litigate the subpoena anonymously.

Malibu Media, LLC v. Doe (D. Conn., 2018)