First Amendment

Victory for ZeroBrokerFees.com in New Hampshire

Michael Erdman First Amendment, Online applications, Real Estate/Fair Housing

Yesterday Magistrate Judge James Muirhead ruled in favor of ZeroBrokerFees.com in the website’s suit challenging the applicability of the New Hampshire Real Estate Practice Act – specifically the licensure requirement – to the operation of ZeroBrokerFees.com. The court ruled that pursuant to a statutory exemption for newspapers, ZeroBrokerFees.com was not obligated to obtain a brokerage license in New Hampshire before advertising real estate online.

For a refresher, see my post from last May.

Here is a copy of ZBF’s lawyers’ announcement, and a copy of the court’s 33 page order.

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Wikileaks updates

Michael Erdman First Amendment, Pending litigation, Section 230

Here are two up to the minute posts, one at Declan McCullagh’s “the iconoclast” blog, the other at Wired’s Threat Level blog, both indicating that wikileaks.org will soon be back online.

I may update this post at a later time/date, particularly when the Court enters a written ruling.

3/4/08 UPDATE: Here is Judge White’s order, entered last Friday, dissolving the permanent injunction.

3/6/08 UPDATE: According to the EFF, the plaintiff has asked the Court to dismiss its case.

Developments in Wikileaks.org lawsuit

Michael Erdman First Amendment, Pending litigation, Section 230

I finally got around to looking over a New York Times article that my law partner Ron Teeple recently shared with me. The article describes, essentially, as inept, an attempt earlier this month by U.S. District Judge Jeffrey S. White to shut down Wikileaks.org, a website that encourages people to post “leaked” information for the purported purpose of deterring corporate and governmental misbehavior. According to the article, the site has previously posted some particularly sensitive military documents and other closely-held materials.

Judge White’s shut down order (the permanent injunction) was directed at the website’s domain name registrar, defendant Dynadot, and not the website itself, and is apparently full of workarounds for determined fans of the site. The Court also entered a temporary restraining order pertaining to the specific documents at issue in the lawsuit.

Earlier today I came across this article in the Los Angeles Times, highlighting efforts to persuade Judge White to reconsider his prior orders. Counsel for the Electronic Frontier Foundation is described in the article as expressing disappointment with Dynadot’s actions, noting that Section 230 protects the company from the plaintiffs’ claims here. Beyond simply complying with a court order (an order which clearly does more than just provide for the preservation of evidence), it would appear that Dynadot first entered into a stipulation with the plaintiff (the proposed order referred to in Paragraph 4 thereof, a/k/a the permanent injunction, was entered by the Court on February 15th and is linked to above), then became bound by the court’s permanent injunction, and, finally, was voluntarily dismissed from the case this past Monday. It would be interesting to know whether the Court would have entered the permanent injunction if Dynadot had not first stipulated to its terms.

We should know more about where this case is headed after a hearing scheduled for this Friday. In the meantime, here’s a copy of the plaintiffs’ six count complaint, filed earlier this month in the Northern District of California (link does not include exhibits).

On a related note, does anybody know whether the Second Circuit has ruled yet on the defendant’s appeal in a somewhat similar dispute involving givemeliberty.org?

 See my 2/29/08 Update post

Court dismisses Avvo.com class action lawsuit

Michael Erdman Class Actions, Consumer Protection law, First Amendment, Online applications

Yesterday District Judge Lasnik of the Western District of Washington granted Avvo.com’s motion to dismiss the class action complaint filed against the site earlier this year, ruling that the plaintiffs’ claims were barred by the First Amendment and Washington’s Consumer Protection Act (“CPA”). If you aren’t familiar with the case,

Plaintiffs’ primary challenge is to the accuracy and validity of the numerical rating system used by Avvo to compare attorneys. Defendants assert that the opinions expressed through the rating system, (i.e., that attorney X is a 3.5 and/or that an attorney with a higher rating is better able to handle a particular case than an attorney with a lower rating), are absolutely protected by the First Amendment and cannot serve as the basis for liability under state law.

Directing that “the key issue is whether the challenged statement could ‘reasonably have been interpreted as stating actual facts’ about plaintiff,” the court found in favor of Avvo. Among its findings-

  • Avvo’s website contains numerous reminders that the Avvo rating system is subjective. The ratings are described as an “assessment” or “judgment,” two words that imply some sort of evaluative process.
  • Neither the nature of the information provided nor the language used on the website would lead a reasonable person to believe that the ratings are a statement of actual fact.
  • [T]he Avvo rating system is an abstraction. (“No reasonable consumer would believe that Avvo is asserting that plaintiff Browne is a ‘5.5.’”)
  • [D]efendants’ rating is . . . virtually impossible to prove wrong.
  • Defendants fairly describe the nature of the information on which Avvo’s ratings are based and make it clear that (a) there may be other relevant data that the rating does not consider and (b) the conversion of the available information into a number involves judgment, interpretation, and assessment.
  • Consumers and the attorneys profiled have access to the underlying information and, while they may disagree with a particular rating and/or the implied comparisons drawn therefrom, “[t]here is no objective standard by which one can measure an advocate’s abilities with any certitude or determine conclusively the truth or falsity of [Avvo’s] statements . . . .”

Thus “[t]o the extent that [plaintiffs] seek to prevent the dissemination of opinions regarding attorneys and judges . . . the First Amendment precludes their cause of action.”

The opinion also includes an analysis and rejection of related claims under the CPA (plaintiffs also argued that (i) Avvo mischaracterized its rating systems, (ii) some of the data included in profiles is inaccurate, and (iii) Avvo’s overall business model is coercive). The court declined to address Avvo’s Section 230 defense, noting that “[p]laintiffs have disavowed any claim based on content that Avvo obtained from a third-party.”

Interestingly, the court seemed to leave the door open to claims against Avvo by individuals who rely on Avvo ratings to their detriment (“Consumers who were misled by the information and ratings provided by Avvo are the direct victims of the alleged wrongdoing.”) However, the remark was made while observing the remoteness of plaintiffs’ asserted damages, and may more properly be construed to mean that consumers directly harmed by an Avvo-rated attorney’s conduct would have a stronger position under the CPA than the plaintiffs do here, and that such a consumer claim would be made against the subject attorney.

Plaintiffs’ request for leave to amend their complaint was denied, so perhaps the Ninth Circuit will be the next stop for their claims.

Kudos to Avvo, which has responded to the decision on its blog. And thank you to Venkat Balasubramani for notifying me last night of Judge Lasnik’s ruling.

First Amendment Challenge to Child Online Protection Act

Michael Erdman First Amendment, Internet-specific laws, Pending litigation

Earlier this year Judge Reed of the Eastern District of Pennsylvania ruled that the Child Online Protection Act (“COPA”) is facially violative of the First and Fifth Amendments, and permanently enjoined the Attorney General from “enforcing or prosecuting matters premised upon COPA at any time for any conduct.” The government appealed.

Yesterday amici curiae filed a brief with the Third Circuit, expressing their concern “about Congress’ attempt to censor what this Court has recognized to be a ‘dynamic, multifaceted category of communication’ – the Internet – by transforming it into a ‘child-proof’ medium whose ‘level of discourse’ would be reduced to that ‘suitable for a sandbox.’ The First Amendment does not allow such sanitizing of public discourse, however well intentioned.” The Center for Democracy and Technology, one of the eighteen amici, includes a link to the brief on its website.

Plaintiffs/Appellees include American Civil Liberties Union; Androgyny Books, Inc., d/b/a A Different Light Bookstores; American Booksellers Foundation for Free Expression; Addazi, Inc., d/b/a Condomania; Electronic Frontier Foundation; Electronic Privacy Information Center; Free Speech Media; Philadelphia Gay News; Powell’s Bookstores; Salon Media Group, Inc.; Planetout, Inc.; Heather Corinna; Nerve.Com, Inc.; Aaron Peckham, d/b/a Urban Dictionary; Public Communicators, Inc.; Dan Savage; and Sexual Health Network.

Amici curiae that filed yesterday’s brief include American Society of Newspaper Editors; Association of American Publishers, Inc.; Center for Democracy & Technology; Comic Book Legal Defense Fund; Computer & Communications Industry Association; Freedom To Read Foundation; Information Technology Association of America; Internet Alliance; Media Access Project; National Association of Recording Merchandisers; National Cable Television Association; Net Coalition; Newspaper Association of America; Online Publishers Association; People for the American Way Foundation; PMA, The Independent Book Publishers Association; Society of Professional Journalists; and United States Internet Service Provider Association.