[Politech] Paul Levy: Politicians, infomercial kings try to stifle anonymous Internet speech [fs]

Fri Sep 21 14:16:30 PDT 2007

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 at 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 <plevy at citizen.org>
To: <declan at well.com>

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/dodgingdangersinetshopping.html
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

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