Like Paul, I'm having a hard time figuring out which is more loathsome: a censorial politician or a a censorial informercial king. I think it's the politician, who's named Judy Gatelli, but it is a tough choice between two exceptionally well-qualified candidates. Ms. Gatelli's email address is jgatelli@scrantonpa.gov. -Declan -------- Original Message -------- Subject: New attacks on the right to speak anonymously on the Internet Date: Fri, 21 Sep 2007 13:21:26 -0400 From: Paul Levy To: I am writing to call your attention to two new Internet anonymity cases we have taken on. I am having trouble figuring out which plaintiff's claims I find more offensive. In one case, the President of the Scranton City Council has filed suit against about ninety of her constituents for defamation and "infliction of emotional distress" for calling her names on a local Internet message board (for example, they call her a Nazi for allegedly mistreating citizen speakers during publicly televised council meetings, or they say "she is not for the people, she is for herself.") We have filed in opposition to her motion to compel disclosure of the critics' names. In the other case, the "Video Professor," a TV infomercial king who sells lessons on computer use, is suing a hundred former students for anonymously dissing his product on web sites called "infomercialratings.com" and "infomercialscams.com," claiming libel and product disparagement under state law and the Lanham Act. We have interposed an objection to a subpoena, sent to the web sites' operator, asking for the names of EVERYBODY who has said anything about the Professor's products on the web sites. What makes the Video Professor's demand especially hypocritical is that, in his posture as a "consumer advocate," his own web site urges consumers to check out companies before they buy, by searching for consumer reviews on the Internet. http://www.videoprofessor.com/resourcelibrary/internet/dodgingdangersinetsho... But on his company, it seems, he only wants positive reviews to be available online. In both cases, we take to new forums our argument that courts ought to require a would-be plaintiff to make a showing that it has enough evidence of legal actionable conduct that its interest in going forward with a lawsuit outweighs the First Amendment right to speak anonymously. In each case, it remains to be seen whether the plaintiff can make a sufficient showing with respect to at least some of the postings at issue. But we want to be sure that all the potential defendants get good notice and an opportunity to defend their anonymity. Somewhat longer descriptions of each case, including links to the relevant filings, follow. PUBIC CITIZEN PRESS RELEASE For Immediate Release: Contact: Amanda Long (202) 588-7703 Sept. 21, 2007 Rachel Pleatman (202) 588-7742 'Video Professor' Has No Legal Basis for Unmasking Identities of Anonymous Web Critics Apparently Upset at Criticisms of His Company, Infomercial Guru Sues Customers WASHINGTON, D.C. - The "Video Professor," a ubiquitous purveyor of computer-training lessons via infomercials, has no legal basis for discovering the identities of his disgruntled customers, Public Citizen said today. In a letter sent today to the Video Professor's attorney, Greg Smith of Denver, Public Citizen attorney Paul Alan Levy outlined the many reasons why the Professor's subpoena against John Does 1 through 100 is invalid. In mid-August, in federal court in Denver, the Video Professor, a self-proclaimed consumer advocate, sued his own customers for posting comments on two consumer comment Web sites. The sites, infomercialratings.com and infomercialscams.com, are run by a Nevada company, Leonard Fitness, Inc. The Professor alleged that his detractors had violated federal trademark laws by saying negative things about the name of his product, as well as committing defamation and several violations of state law. Recently, subpoenas were delivered to Leonard Fitness' agent. "It's outrageous that the Professor is suing his own customers," Levy said. "He has shown no legal basis on which to do so. He's very good at promoting himself and wants to suppress criticism." The Video Professor, John Scherer, is not really a professor - he just plays one on TV. He founded his company to offer CDs and online lessons on a wide range of computer programs and skills. His efforts share the airwaves with abdominal rollers, juicers, magic steamers and assorted as-seen-on-TV wares. Scherer claims that more than 8 million people have purchased his products since he started selling instructional videos 20 years ago. "The Professor's own Web site warns consumers to check out companies they don't know by using Internet search engines to find customer reviews," Levy said. "But if the cost of complaining online is having to face a federal lawsuit, a company can unfairly ensure that only compliments will be posted." Not only have state and federal courts throughout the country recognized the right to speak anonymously on the Internet, but the Professor has not met the legal requirements necessary to justify the unmasking of the critics' identities, Levy said. The Professor would have to show a likelihood of success on the merits of the case, which he hasn't done, Levy said. In addition, the Professor's subpoena fails to identify which of the many posts he finds defamatory. There are hundreds of comments about the courses, many of which are complimentary, on the two sites. The subpoena incorrectly burdens the Web site host to identify which critics upset the Professor. Specifics are needed for the anonymous posters to decide whether and how to protect their anonymity, Levy said. A copy of Levy's letter is available at http://www.citizen.org/documents/videoprofletter.pdf. For Immediate Release: Contact: Amanda Long (202) 588-7703 Sept. 21, 2007 Angela Bradbery (202) 588-7741 Critics of Scranton Council President Have Right to Anonymity, Public Citizen Tells Court Petition to Reveal Identity of Message Board Posters Is Unconstitutional WASHINGTON, D.C. - A Scranton, Pa., City Council member cannot compel disclosure of the identity of the almost 100 constituents who anonymously posted messages on a Web site critical of her leadership, Public Citizen said in a motion filed today in the Court of Common Pleas in Lackawanna County. The plaintiff, Scranton City Council President Judy Gatelli, sought a court order requiring the message board's hosts to reveal the identity of posters whom she accuses of defamation, civil conspiracy and "engaging in a campaign of intentional emotional distress." Earlier this year, Gatelli canceled a Council meeting after citing concerns about "threats" against her on www.dohertydeceit.com. The host of that site, Joseph Pilchesky, sued Gatelli for defamation, and Gatelli filed a countersuit against him for the same. She also filed a complaint against Pilchesky's wife and approximately 90 defendants, identified by the pseudonyms used on Scranton "Political" Times Message Board, a site that links to DohertyDeceit and also is operated by Pilchesky. Although Gatelli cites 130 different messages, she doesn't say which posting was made by which defendant. As an elected official, Gatelli's conduct is fair subject for comment, Public Citizen argued. Furthermore, courts have ruled that subpoenas to reveal the names of anonymous speakers can chill free speech, and those courts have upheld the right to communicate anonymously over the Internet. "While some posts are scathing, they are scathing opinions, which are protected speech," said Paul Alan Levy, the Public Citizen attorney representing seven defendants. "This is especially true for elected public officials. Harry Truman said it best: 'If you can't stand the heat, get out of the kitchen.' " The name-calling and rhetorical insults Gatelli cites in her complaint are prime examples of what courts have found to be protected speech in the context of public debate. For example, Gatelli accuses one defendant of making the following post: "Your arrogance blows me away * You didn't just screw the adults of this town, you screwed the children of Scranton." The complaint includes a posting that refers to Gatelli as a fat Nazi. Courts have consistently held that calling someone a Nazi is figurative speech not actionable as libel. Gatelli has failed to introduce any admissible evidence to establish that the facts posted were false or caused any economic damage or harm, Levy said. "The Internet is a democratic institution in its fullest sense." Levy said. "To deny citizens access to it because an elected official says her feelings are hurt would go a long way toward eroding the First Amendment." George Barron, an attorney in Wilkes-Barre, Pa., is local counsel for the Doe defendants in opposing discovery. To reach Barron, visit www.attorneybarron.com. For background on the case, including the brief:, visit http://www.citizen.org/litigation/forms/cases/CaseDetails.cfm?cID=427 Public Citizen has a record of defending the First Amendment rights of Internet users. To learn more, visit http://www.citizen.org/litigation/briefs/IntFreeSpch/. ### Public Citizen is a national, nonprofit consumer advocacy organization based in Washington, D.C. For more information, please see http://www.citizen.org. Paul Alan Levy Public Citizen Litigation Group 1600 - 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 http://www.citizen.org/litigation _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/) ----- End forwarded message ----- -- Eugen* Leitl <a href="http://leitl.org">leitl</a> http://leitl.org ______________________________________________________________ ICBM: 48.07100, 11.36820 http://www.ativel.com http://postbiota.org 8B29F6BE: 099D 78BA 2FD3 B014 B08A 7779 75B0 2443 8B29 F6BE