JOLT Digest

Third Circuit holds that vulgar MySpace profile created off school grounds did not cause “substantial disruption” at the school to justify student’s ten-day suspension
By Michael Adelman – Edited by Abby Lauer

J.S. v. Blue Mountain School District, No. 08-4138 (3d Cir. June 13, 2011)
Slip Opinion

The Third Circuit, sitting en banc, reversed and remanded the Middle District of Pennsylvania’s ruling that suspension was an appropriate punishment for a student who created a fake MySpace account that made fun of her middle school principal. The court also affirmed the District Court’s ruling that the school district’s policies were not overbroad or void-for-vagueness.

The Third Circuit held that the fake MySpace profile, while vulgar and offensive, did not cause the type of “substantial disruption” which would have justified the ten-day suspension of the student. The profile was not accessible on any school computers (due to a filter), and while the school district asserted that the profile caused “general rumblings,” it could not point to any major disruption of classroom activities caused by the profile. The court applied the framework from Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), to analyze whether the student’s posting materially interfered with school activities, but it declined to directly address whether Tinker is limited to speech that occurs on campus.

Education Tech News provides an overview of this case, and the companion case Layshock v. Hermitage School District, No. 07-4465 (3d Cir. June 13, 2011) (involving another student who created a fake MySpace profile making fun of his principal). The Digest previously covered these cases when they were heard by Third Circuit panels and resulted in seemingly contradictory decisions. Wired provides a thorough analysis of the decision, noting that the Supreme Court “has not squarely addressed the student-speech issue as it applies to the digital world” and speculating that these “decisions might give the justices fodder to do so.” (more…)

Ninth Circuit Argues for Less Stringent Test for Protecting Anonymous Online Commercial Speech
By Kathryn Freund – Edited by Janet Freilich

In re: Anonymous Online Speakers, No. 09-71265 (9th Cir. July 12, 2010)
Opinion

The Ninth Circuit Court of Appeals denied writs of mandamus appealing the District Court of Nevada’s order to disclose the identities of anonymous online posters. Although the Circuit Court denied the writs of mandamus for procedural reasons, the decision provides a discussion of Free Speech protection of commercial speech posted on the Internet.

Judge McKeown held that the District Court committed no clear error in ordering the release of the identities of three anonymous online speakers. In discussing the various tests for protecting anonymous speech, she stated that the District Court applied too stringent a standard for commercial speech by relying on the test announced in Doe v. Cahill, 884 A.2d 451 (Del. 2005), which involved political speech. The court noted that the First Amendment affords less protection to commercial speech, and thus the balancing test between discovery and Free Speech should be based on “the nature of the speech,” with commercial speech subject to less stringent protection. In re: Anonymous Online Speakers, at *9920. In the discussion, the court noted the likelihood of an increasing number of cases involving anonymous online commercial speech and the lack of appellate decisions involving such discovery disputes.

The Internet Cases blog provides an overview of the decision and points out the significance of the case as the third federal circuit court case to address the issue of online anonymity. Citizen Media Law Project provides a more extensive overview and questions whether the Ninth Circuit’s definition of commercial speech will reduce free speech protection for “legitimate consumer criticism.” (more…)

By Ian B. Brooks

Illinois Establishes Standard for Identifying Anonymous Internet Commenters

Evan Brown at Internet Cases reports that the Appellate Court of Illinois, Third District has set forth a standard for identifying an anonymous internet commenter in Maxon v. Ottawa Publishing Co., No. 3-08-0805 (Ill. App. 3d June 1, 2010). A couple from Illinois, unhappy with anonymous comments on a local newspaper website, sought to identify the commenters. Illinois Rules on Civil Proceedings Rule 224 allows a petitioner to file a petition to identify a person “responsible in damages.” The trial court followed the analysis of Dendrite International. Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001) and Doe v. Cahill, 884 A.2d 451 (Del. 2005), in denying the petition. The appellate court reversed and remanded, setting forth a new standard that requires a court to “insure that the petition: (1) is verified; (2) states with particularity facts that would establish a cause of action for defamation; (3) seeks only the identity of the potential defendant and no other information necessary to establish the cause of action of defamation; and (4) is subjected to a hearing at which the court determines that the petition sufficiently states a cause of action for defamation against the unnamed potential defendant.” Maxon, slip op. at 9. As Brown notes, this standard — unlike that of past cases — does not require the petitioner to attempt to identify the commenter.

FCC Votes to Proceed with Net Neutrality Regulations

Joelle Tessler for the Associated Press reports that the Federal Communications Commission has voted to accept public comments on three proposed broadband regulations. The regulations are part of the FCC’s latest attempt to establish oversight of broadband providers. The proposal would redefine broadband access as a telecommunications service, allowing the FCC greater regulatory control. FCC Chairman Julius Genachowski hopes to ensure that broadband providers treat network traffic equally, limiting their ability to selectively block traffic. JOLT Digest previously highlighted the objections of many members of Congress to the FCC’s attempts to regulate in the aftermath of Comcast Corp. v. FCC.

Napolitano Calls for Balance Between Civil Liberties and Security

Lolita C. Baldor for the Associated Press reports that in a recent speech, Homeland Security Secretary Janet Napolitano discussed the balance between fighting terrorism and maintaining civil liberties. Citing the recent homegrown, online terrorist recruitment efforts, Napolitano suggested that the law should allow the government to monitor these growing threats. Napolitano believes that by monitoring Internet communications the United States can better protect national security without necessarily “having a deleterious effect on individual rights.”

By Harry Zhou
Edited by Gary Pong
Editorial Policy

Libel litigation against bloggers has intensified in recent years as the blogosphere continues to experience rapid growth. The threats database of the Citizen Media Law Project (“CMLP”) shows that since 2000, there have been more than 310 lawsuits accusing blog and forum owners of defamation in U.S. courts. Often central to these disputes is the tension between the right to free speech and the need to restrict the rapid spread of defamatory materials on the Internet. The balance is particularly hard to strike when a plaintiff seeks a prior restraint, an extraordinary remedy that immediately enjoins the defendant’s speech at the onset of a lawsuit.

In December 2009, a New Jersey court issued such a prior restraint that compelled the complete shutdown of three blogs in Apex Tech. Group, Inc. v. Doe(s) 1-10. The order evoked keen debate among media law experts regarding the proper scope of prior restraints on Internet media such as blogs and forums. Kurt Opsahl, a senior attorney with the Electronic Frontier Foundation (“EFF”), criticized the prior restraint for being “dangerously overreaching” in an EFF blog post. Vivek Wadhwa, a senior research associate at Harvard Law School, voiced his support for the takedown on TechCrunch, claiming that the EFF was “a tad overzealous” in defending the websites involved. Taken together, the two articles serve as an appropriate starting point for determining how much of a blog can be properly censored by a prior restraint under a defamation claim. (more…)

By Chinh Vo

Moviemakers Sue Tens of Thousands of BitTorrent Users

A coalition of independent filmmakers has sued more than 20,000 individual movie torrent downloaders for copyright infringement in federal court in Washington D.C., the Hollywood Reporter, Esq. blog reports. The series of lawsuits marks the first major move in the U.S. by the movie industry to target individual torrent downloaders, rather than the torrent sites themselves, and is preceded by similar actions in Germany and the U.K. According to the Hollywood Reporter blog, these suits may signal the beginning of a wave of “massive litigation” against movie torrent downloaders, as 30,000 new lawsuits are allegedly forthcoming.

UK Journalist Wins Libel Appeal

The Guardian and Ars Technica report that on April 1, UK science journalist Simon Singh won an important appeal in a libel suit brought against him by the British Chiropractic Association (“BCA”). Singh is accused of libel based on an article he wrote, which described some of the BCA’s treatment practices as “bogus.” In reversing an earlier decision that had required Singh to meet the difficult standard of showing that the BCA was knowingly engaged in false claims, the court accepted Singh’s statements to be a matter of opinion, noting that it was not in the position to settle scientific claims. Singh no longer has to show that his comments were factual and can instead use a “fair comment” defense.

Major Online Service Providers Push Privacy Law Reforms

Wired reports major online service providers, including Google and Microsoft, have combined forces with internet rights organizations such as the Electronic Frontier Foundation to form Digital Due Process, a coalition pushing for modernization of U.S. privacy laws. The group says that current electronic privacy legislation, particularly the 1986 Electronic Communications Protection Act, needs to be updated to reflect changing technology. Specifically, Digital Due Process advocates the adoption of several principles, such as requiring judicial approval for government access to information about email and phone usage. None of the internet companies that are part of the coalition, however, have announced changes to their own practices.