The Securities and Exchange Commission

[thepennyking]

Internet Free Speech
Cases Litigated By Public Citizen's Litigation Group


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Right to Speak Anonymously
Right to Identify Company Criticized by Name
Liability of Gripe Site Operator for Violations by Message Board Speakers
Use of Brand Name in Domain Names and Metatags
Legal Perils and Legal Rights of Internet Speakers (Outline of Speech by Paul Alan Levy)
Miscellaneous


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Right to Speak Anonymously

Dendrite International v. Does 1 through 14
Company providing and servicing software for the pharmaceutical industry sued four anonymous posters, two of them current or former employees, alleging defamation, disclosure of trade secrets, and breach of employment contract. Public Citizen filed an amicus brief in support of opposition by two posters to subpoena to Yahoo! After Court entered order protecting these two posters, the company appealed denial of subpoena regarding one of the posters.

Memorandum of Public Citizen as Amicus Curiae in Opposition to the Requested Discovery, July 11, 2000
Decision of Superior Court of New Jersey, Chancery Division, November 23, 2000
Brief on Appeal of Amici Curiae Public Citizen and the ACLU of New Jersey -- March 29, 2001
Decision of the Appellate Division of the New Jersey Superior Court -- July 11, 2001 -- PDF
Comments of Paul Alan Levy on the July 11, 2001 Decision of the New Jersey Superior Court
Donato v. Moldow

Brief as amicus curiae argues that even if anonymous Internet speakers do not appear in court through counsel to object to a motion by public officials seeking to identify them, the court has an independent duty to ensure that the plaintiff has a strong enough case to justify overriding their free speech rights. Brief also argues that citizen who runs web site cannot be held liable for allegedly defamatory or harassing messages posted by other persons on his web site's message board.

Equidyne Corp. v. Doe
Equidyne Corporation sued several anonymous posters alleging that, in violation of their employment agreements, they posted confidential inside information on the Raging Bull and Yahoo! message boards about Equidyne. After one of the Does, Aeschylus_2000, moved to quash arguing that he was not an employee, Equidyne changed theories and argued that, by urging viewers to give their proxies to a recently announced slate of challengers for the company's board, Aeschylus has violated the SEC's proxy rules both by not disclosing his identity, his shareholdings, and similar data, and by supporting a slate that has itself not complied with the disclosure rules. The district judge agreed to apply a standard similar to the one adopted by the New Jersey courts in Dendrite v. Doe, but found that Equidyne had shown a prima facie case under federal securities laws, and that the prima facie case did not include a showing of actual damages. Our amicus brief urges the Third Circuit to adopt New Jersey's Dendrite standard, to require trial judges to observe the Dendrite procedures more scrupulously, and to send the case back for more careful consideration of whether disclosure is proper under that rule

Equidyne Amicus Brief - June 17, 2003
Hollis-Eden Pharmaceuticals, Inc. v. Does

Pharmaceutical company sued several anonymous message board posters who expressed opinions critical of its corporate leadership and marketing efforts. Public Citizen has moved to quash the subpoena and to dismiss the suit as one designed to suppress free speech.

Memorandum in Support of Motion to Strike
Reply Memorandum in Support of Motion to Strike
Court's Ruling on Special Motion to Strike and Motion to Quash Subpoena -- March 20, 2001 (PDF File)
Hritz v. Doe
First Amendment defense against attempt by company official to identify an anonymous Message Board critic

Brief
Brief defending the removal of a pre-litigation petition for discovery of the identity of an anonymous speaker.
iXL Enterprises v. Doe
Suit by company alleging that one of its employees was violating his obligations by posting comments about the company on a Yahoo! message board; because plaintiff has been told that defendant is not an employee, motion to quash alleges that this is a deliberate effort to chill free speech

Motion to Quash
Recording Industry Association of America v. Verizon Internet Services

The RIAA served two subpoenas on Verizon, seeking to identify two subscribers who allegedly offered hundreds of copyrighted songs available for download through the KaZaA peer-to-peer file sharing system. RIAA invoked a provision of the Digital Millenium Copyright Act that authorizes such subpoenas. RIAA objected, and appealed from an order enforcing the subpoenas on the ground that the DMCA does not allow subpoenas where the copyrighted files remain on the subscriber's own computers, and that the law was unconstitutional because it permitted subpoenas to be issued by a court's clerk rather than requiring the copyright owner to file a lawsuit against the subscriber and seek discovery under John Doe procedures.

Public Citizen submitted an amicus curiae brief arguing that the statute incorporates the Federal Rules of Civil Procedure, which have, in turn, been construed to require notice and an opportunity to argue that the right of anonymous speech outweighs the right to identify alleged wrongdoers in particular cases. Because the statute indirectly requires notice, and because notice was in fact given and on the facts of the case the balancing test does not justify withholding the identities, Public Citizen argued that the decision should be affirmed.

Verizon Appellate Amicus Brief - May 15, 2003
Thomas & Betts Corporation v. Does 1 through 50

Memorandum of Points and Authorities in Support of Special Motion to Strike
WRNN-TV Associates v. Doe
This case was settled and the following Memorandum was never filed. The Memorandum is provided for reference purposes. The settlement agreement is posted below.

Memorandum in Support of Motion of Jane Doe to Quash Subpoena and Deposition
Settlement Agreement
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Right to Identify Company Criticized by Name

Alitalia v. Porta
Trademark suit in federal court in New York by airline seeking to suppress a web site posted atwww.alitaliasucks.comby an unhappy customer whose luggage was lost. Company has moved to for a preliminary injunction claiming that the domain name violates the new anti-cybersquatting law; defendant argues that this law was not violated and that, in any event, the First Amendment protects his speech.

Brief
Bosley v. Kremer
California company brought suit in Illinois against a California man who runs web sites devoted to the alleged misconduct of the company, as reported in various media sources and detailed in law enforcement investigations. Public Citizen moved to dismiss, arguing that there was no basis for suing in Illinois, that in any event the California anti-SLAPP statute comes to Illinois with the case, and that the defendant is entitled to use the company's name in the domain names for his web sites.

MEMORANDUM IN SUPPORT OF DEFENDANT KREMER'S MOTIONS TO DISMISS, August 21, 2001
Circuit City Stores, Inc. v. Steven C. Shane

Memorandum in Opposition to Motion for Preliminary Injunction and in Support of Motion to Dismiss
Coca Cola Company et al v. Purdy

Anti-abortion activist registered domain names using several different companies' trademarks as a way of drawing public attention to websites denouncing abortion through graphic photographs of dismembered fetuses. After he was sued, he added a small amount of content related to the companies. Public Citizen argued that, because his websites were not "about" the companies whose trademarks he was using, his use of the trademarks in the domain names could not be justified. We argued, however, that if Purdy developed content that was specific to the companies and proposed to use domain names that fairly described the contents of such websites, an injunction forbidding any domain name that did not use a critical word within the domain name could become overbroad.

Purdy Amicus Brief - February 14, 2003
Crown Pontiac v. Ballock

In this cyberspeech case, Public Citizen defended Thomas Ballock's right to criticize the Crown Pontiac car dealership. Mr. Ballock purchased a defective car from Crown and was very unhappy with Crown's response to his complaints, so he posted a gripe site on the Internet in which he used Crown's name in the domain name and text. Mr. Ballock's site clearly stated that it was not Crown's official website, but rather a site critical of Crown. Crown sued Mr. Ballock under trademark and cybersquatting laws, but was eventually forced to drop its lawsuit and pay Mr. Ballock more than $6000 for the damages he incurred from Crown's attempt to enjoin his website.

Memorandum Opinion (9/22/03)
Answer (6/10/03)
Motion to Dissolve Preliminary Injunction (6/10/03)
Falwell v. Cohn

Dismissal Order- March 2003
Brief filed in Uniform Dispute Resolution Procedure explaining why critic of Jerry Falwell is entitled to use Falwell's full name as the domain name for a web site parodying Falwell for his comments about the reasons why the September 11 bombing happened and his penchant of citing the Bible at his political opponents.
Memorandum in Support of Motion to Dismiss
Nissan Motor Co. v. Nissan Computer Corp.

A federal district judge decided that Uzi Nissan did not infringe the trademark of the Nissan auto companies by creating a web site for the Nissan Computer Company at the addresses nissan.com and nissan.net, but that the use of the domain name for ads for automaobile products was infringement, and also that use of the domain name for advertising and for ciriticism of Nissan Motor Co. diluted Nissan's trademark. As a remedy, the judge allowed Uzi Nissan to keep his domain names, but forbade him from including any advertising AND from including anything critical of Nissan Motor. Public Citizen argued, in a brief filed with the Court of Appeals for the Ninth Circuit, that once advertising was forbidden on the website it became noncommercial and hence beyond the reach of teh federal trademark laws, that, in any event, neither the First Amendment nor the trademark laws would tolerate an injunction barring use of the Nissan name in a domain name for a website that criticizes Nissan Motor.

Amicus Brief on Dilution Appeal - August 2003
Unseal Motion - August 2003
Amicus Brief- March 2003
Servicemaster, et al. v. Virga

Defendant's Memorandum in Opposition to the Motion for a Preliminary Injunction and in Support of her Motion to Dismiss
Reply brief, February 18, 2000
Taubman v. Mishkoff
A Dallas resident created a web site praising a local shopping mall, the Shops at Willow Bend, using the domain name shopsatwillowbend.com, and was sued for his trouble by the mall developer, the Taubman Company, who claimed that the web site and domain name violated its trademark in the mall's name. When the web operator created a new web site called using names like taubmansucks.com and shopsatwillowbendsucks.com to protest the wasteful litigation against him, the developer sought a preliminary injunction asking that the new sites be stricken as well.

Amicus brief of Public Citizen, 11/12/01
Argues that neither the domain name nor the web site violates Taubman's trademark rights, and in any event the First Amendment protects the web site operator's right to use these names to attack Taubman's conduct
Stay Memorandum, 1/15/02
Argues that district court's preliminary injunction against the Taubmansucks web site should be stayed because it is a prior restraint on defendant's non-commercial criticism of the plaintiff, its lawyers, and the trial judge's decisions, and because the trademark laws do not regulate the use of a trademarked name to identify the subject of Internet criticism
Decision granting the stay sought in the foregoing brief, 3/11/02
Memorandum in Support of Defendant's Motion for Summary Judgment, 3/15/02
Motion for summary judgment on all claims against both the "gripe" site and the underlying fan site for a Texas shopping mall.
TMI, Inc. v. Maxwell

Brief for Defendant Appellant - July 31, 2003
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Liability of Gripe Site Operator for Violations
by Message Board Speakers

Northwest Airlines, Inc. v. Teamsters Local 2000, et al.

Memorandum in Support of Motion to Dissolve Temporary Restraining Order Against Individual Defendants Ted Reeve and Kevin Griffin, 1/19/2000
Memorandum in Support of Mandamus or Summary Reversal, 1/31/00
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Use of Brand Names in Domain Names and Metatags

Pacifica Web Sites -
Pacifica Foundation threatened trademark litigation against several groups that used its name in domain names for web sites that criticized actions of foundation leadership in suppressing dissent on its radio stations, but withdrew the threat in the face of Public Citizen's explanations of why such law suits could not succeed.

Letter from Public Citizen to Pacifica Counsel
Paccar v. Telescan - Trademark suit by manufacturer against retailer who sells manufacturer's goods on its web site.

Amicus Curiae Brief - argues that because the brand names properly describe the subject of the retailer's web pages, they may fairly be used in domain names and meta tags for those web pages.
Miscellaneous

SIU v. Swanson

Plaintiff, the Seafarers International Union, and its lawyers sought a temporary injunction preventing Robert Swanson from criticizing either the Union or the Paul McAndrew Law Firm on his website. The District Court for Clinton County, Iowa denied the injunction as to the Union, but granted it on behalf of the law firm. Public Citizen moved for interlocutory review of the injunction, which constitutes an unconstitutional prior restraint granted on behalf of a non-party to the lawsuit.

Interlocutory Appeal Petition - December 22, 2003
Interlocutory Appeal Brief - December 22, 2003

http://www.citizen.org/litigation/briefs/IntFreeSpch/articles.cfm?ID=5801