User Comments On A Public Interest Website Do Not Violate Website’s User Agreement

The Appeals Court for the Fourth District Court of Appeals in California affirmed the special motion to strike a plaintiff’s complaint for being barred under the anti-SLAAP statute.  Hupp v. Freedom Communications, Inc., Case No. #-57390 (Cal. 4th DCA, November 7, 2013) (available here).  Plaintiff Paul Hupp sued Defendant Freedom Communications, Inc., dba The Orange County Register (“the Register”), alleging breach of the Register’s user agreement with Hupp when the Register failed to remove comments on its website regarding Hupp.  The Register filed a special motion to strike (anti-SLAPP) and the lower court granted the motion to strike Hupp’s complaint.  Hupp appealed, arguing that his lawsuit is a standard breach of contract action not subject to an anti-SLAPP motion.

In March 2012, the Register published an article on its website concerning public safety pensions in Orange County, California.  Many readers, including Hupp, posted comments on the article.  A large portion of the comments were between Hupp and Defendant Mike Bishop.  The Register argued that Hupp complained to the author of the article about five postings by Bishop and demanded that they be removed.  Hupp argued that the Register violated its user agreement by making public comments and failing to remove the comments about Hupp.  He argued that the comments invaded his right of privacy, harassed him, and were harmful to him.  The Register’s User Agreement states that interactive areas of the Register’s website are provided to the users as a way for users to express their opinions and share ideas and information.  The User Agreement also stated that users who used the interactive areas, and that the Register reserved the right, but undertakes no duty, to review, edit, move, or delete any user generated content in its sole discretion.

The Register filed an anti-SLAAP motion under Code of Civil Procedure Section 425.16, which authorizes such a motion “against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . . .”  Code of Civil Procedure Section 425.16(b)(1).  The statute is meant to be construed broadly, and the anti-SLAAP motion must be granted unless a plaintiff can show that there is a probability for plaintiff to prevail on the claim.  A SLAAP lawsuit is a civil lawsuit aimed to bring an economic advantage to the plaintiff over the defendant, not a lawsuit brought to vindicate a legally cognizable right of the plaintiff.  “While Hupp’s complaint does not generally fit the above description of a typical SLAPP suit, it is subject to an anti-SLAPP motion if it fits within the statutory definition, which includes having the purpose of punishing the Register for exercising its free speech rights. Hupp’s appeal on this point provides only two sentences of argument and does not address the issues presented by the trial court’s decision.”  Hupp, Slip Op. P. 5.

The Court first had to determine whether the Register made the required showing that Hupp’s complaint arose from a protected activity.  If so, then the Court would consider whether Hupp had demonstrated a probability of prevailing on his claim.  The Register argued that its actions arise from acts in furtherance of its free speech rights.  The Register argued that its maintenance of the website, which publishes public interest articles and allows user comments, facilitates free speech, and allows for the exchange of ideas and opinions.  The California Supreme Court has held that publicly available websites are public forums for purposes of anti-SLAAP motions.  Barrett v. Rosenthal, 40 Cal.4th 33, 41, fn. 4, (2006).  The comments between Hupp and Bishop began as a conversation about the pension article posted on the Register’s website.  However, Bishop then asked Hupp if he was a vexatious litigant, stating that he had searched for Hupp on Google, and that Hupp was the subject of discussion on other websites.  To support this, the Register submitted to the Court an appendix of 145 pages of lawsuit related documents concerning Hupp.  The Register argued that the subject of vexatious litigants is an issue of public  interest.  The Court concluded that the Register’s actions were in furtherance of its free speech rights.  “Maintaining a forum for discussion of issues of public interest is a quintessential way to facilitate rights, and the Register has no liability for doing so.”  Hupp, Slip Op. P. 8.

The Court extended this holding to find that Hupp had not shown any probability of prevailing in this action.  Hupp had failed to present any argument on the issue, and thus his lawsuit is barred.  As a result, the Court affirmed the lower court’s granting of the Register’s anti-SLAAP motion.

Hupp then argued that there was an issue with document service.  Hupp filed his complaint on March 22, 2012 and the Register was served on July 2, 2012.  The Register had 30 days to respond, and on July 24, 2012, it filed an ex parte motion for an extension in order to file its anti-SLAAP motion.  The motion was granted, and Hupp acknowledged receipt of the order on July, 30, 2012.  On August 31, 2012, the Register filed the anti-SLAAP motion, the hearing was set for September 28, 2012, and on September 13, 2012 the process server filed an amended proof of service stating that the original had inadvertent incorrect information, and that service was completed by leaving copies of the documents with the security guard at the front gate of Hupp’s residential community.  This is a permissible means of service in California.  Hupp filed a declaration by the secuirty guard, who stated that he turned the process server away and did not receive any documents.  Hupp filed his motion to strike the anti-SLAAP motion on September 24, 2012 for improper service, however he acknowledged receipt of the Register’s motion on September 13, 2012.  Counsel for the Register moved for a continuance, which was granted, and the anti-SLAAP motion was heard on October 18, 2012.  The lower court granted the anti-SLAAP motion.  The Court concluded that Hupp had admitted to receiving the Register’s motion on September 13, 2012, and therefore he had 34 days before the rescheduled hearing on October 18, and had actual notice of the action in time to defend against the anti-SLAAP motion.  As a result, the Register complied with all service requirements.

The Court affirmed the lower court’s order granting the Register’s anti-SLAAP motion to strike Hupp’s complaint.

Florida Appeals Court Reverses Injunction for Libel and Defamation as Being a Prior Restraint on Defendant’s Constitutional Right Free Speech

A broken romantic relationship devolved into a pattern of harassment, email hacking, offensive letters, naked photographs sent to third parties from the plaintiff’s email contact list, creation of a website, use of plaintiff’s name for multiple purposes, efforts by defendant to pre-sell a tell-all book, and posting of allegedly defamatory statements about plaintiff. The lower court issued a preliminary injunction prohibiting Vrasic “[f]rom using the name or likeness of Leibel for commercial purposes”; “[f]rom using the words ‘Lorne’ together with ‘Leibel’ for any commercial purpose”; and “[f]rom publishing, selling, licensing, or leasing, or offering to publish, sell, license, or lease” Vrasic’s book “as previously published,” allowing Vrasic to publish a work only “so long as the work does not use the words ‘Lorne’ and/or ‘Leibel,’ alone or in any combination.”  The Appeals Court reversed the lower court’s ruling and mainly dissolved the injunction as violating Vrasic’s right of freedom of speech under the First Amendment.  Vrasic v. Leibel, case no. 4D12-1289 (4th DCA, Jan. 9, 2013)(available here).

Florida courts have long held that temporary injunctive relief is not available to prohibit the making of defamatory or libelous statements because there is an adequate remedy at law for libelous or defamatory statements, namely, an action for damages.  P. 2, citing Animal Rights Found. of Fla., Inc. v. Siegel, 867 So.2d 451, 454 (Fla. 5th DCA 2004); and Murphy v. Daytona Beach Humane Soc’y, Inc., 176 So.2d 922, 924 (Fla. 1st DCA 1965).

“Second, a temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns. See Moore v. City Dry Cleaners & Laundry, 41 So.2d 865, 873 (Fla.1949) (recognizing First Amendment concerns triggered by temporary injunction); Murphy, 176 So.2d at 924 (same); see also Post–Newsweek Stations Orlando, Inc. v. Guetzloe, 968 So.2d 608, 610 (Fla. 5th DCA 2007) (recognizing temporary injunction forbidding speech constitutes a prior restraint) (citing Alexander v. United States, 509 U.S. 544, 550 (1993)). ‘[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.’ Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). And, protection against prior restraints on speech extends to both false statements and to those from which a commercial gain is derived. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761 (1976) ( ‘[S]peech does not lose its First Amendment protection because money is spent to project it· Speech likewise is protected even though it is carried in a form that is ‘sold’ for profit.’) (citations omitted); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 924 (6th Cir.2003) (same); Town of Lantana v. Pelczynski, 290 So.2d 566, 569 (Fla. 4th DCA) (‘Freedom from prior restraint upon speech and press extends to false, as well as true statements.’) (citing Patterson v. Colorado, 205 U.S. 454, 462 (1907)), aff’d, 303 So.2d 326 (Fla.1974). ‘[A] free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.’ Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975).”  P. 2.

The Appeals court rejected plaintiff’s arguments that defendant engaged in tortious interference or a claim of specialized harm per Zimmerman v. D.C.A. at Welleby, Inc., 505 So.2d 1371 (Fla. 4th DCA 1987) and Murtagh v. Hurley, 40 So.3d 62 (Fla. 2d DCA), review denied, 51 So.3d 1155 (Fla.2010).

“The instant case involves neither a claim for tortious interference with a business relationship nor a claim of specialized harm. Indeed, in issuing the temporary injunction, the lower court expressly found that while Leibel had suffered embarrassment and emotional distress—the same harm suffered by all who are the subjects of defamatory statements—there was no evidence that he had been ‘shunned by society’ or had suffered any business or financial losses. We thus decline to extend Zimmerman and Murtagh to uphold the temporary injunction entered in this case.”  P. 3.

Therefore, Leibel’s case against his former lover Vrasic moves forward to trial leaving in place a “no contact” injunction but without the unconstitutional prior restraint of speech, confirming the age old adage “hell hath no fury like a woman scorned,” or, as penned by William Congreve in his poem “The Mourning Bride” (1697): “Heaven has no rage like love to hatred turned, Nor hell a fury like a woman scorned.”

Florida Law Prohibiting Loud Music From Cars Declared Unconstitutional Under First Amendment

The Freedom of Speech clause of the First Amendment was cited in declaring unconstitutional a Florida statute that made it unlawful for any person in a motor vehicle to produce sound from a soundmaking device (for example, a CD player) which is “plainly audible at a distance of 25 feet or more from the motor vehicle.” Fla. Stat. 316.3045(1)(a).  The Statute was “unconstitutionally overbroad, but not unconstitutionally vague” because the statute exempts “motor vehicles used for business or political purposes, which in the normal course of conducting such business use soundmaking devices.”  Since the Statute treats commercial and political speech more favorably than noncommercial speech the Statute is unconstitutionally overbroad.  State of Florida v. Catalano, Case No. SC 11-1166 (Fla. S.Ct., Dec. 13, 2012) (available here).  The Statute provided:

Operation of radios or other mechanical soundmaking devices or instruments in vehicles; exemptions.— (1) It is unlawful for any person operating or occupying a motor vehicle on a street or highway to operate or amplify the sound produced by a radio, tape player, or other mechanical soundmaking device or instrument from within the motor vehicle so that the sound is: (a) Plainly audible at a distance of 25 feet or more from the motor vehicle; or (b) Louder than necessary for the convenient hearing by persons inside the vehicle in areas adjoining churches, schools, or hospitals. Fla. Stat. 316.3045(1)(a).

Additionally, the Statute exempted (a) law enforcement and emergency vehicles; and (b) “motor vehicles used for business or political purposes” from the “too loud at 25 feet” provision. Fla. Stat. 316.3045(1)(a). The Department of Highway Safety and Motor Vehicles was to promulgate rules defining “plainly audible” and establish standards.

Catalano argued that the “plainly audible” language is unconstitutionally vague on its face because whether a police officer can hear amplified sound beyond twenty-five feet is necessarily subject to each particular police officer’s auditory faculties, leading to arbitrary enforcement based on whether a police officer personally finds the amplified sound disturbing.

“Applying the rationale from Grayned and Broadrick, the ‘plainly audible’ standard provides persons of common intelligence and understanding adequate notice of the proscribed conduct: individuals operating or occupying a motor vehicle on a street or highway in Florida cannot amplify sound so that it is heard beyond twenty-five feet from the vehicle. Although it is true that each police officer may have different auditory sensitivities, the ‘plainly audible’ beyond twenty-five feet standard provides fair warning of the prohibited conduct and provides an objective guideline—distance—to prevent arbitrary and discriminatory enforcement so that basic policy matters are not delegated to policemen, judges, and juries for resolution on an ad hoc and subjective basis.” P. 9, citing Grayned v. City of Rockford, 408 U.S. 104, 110 (1972) and Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973).

Although not unconstitutionally vague, the Statute is overbroad in that it favors one type of speech over another.

“Here, the State argues that Catalano … do[es] not have a constitutionally recognized right to play loud music, thus the statute is not subject to an overbreadth analysis. However, the right to play music, including amplified music, in public fora is protected under the First Amendment.”  P. 13, citing Ward v. Rock Against Racism, 491 U.S. 781, 788-90 (1989).

“‘The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.’ Ward, 491 U.S. at 791. If the government’s purpose has no relation to the content of the speech, the statute will be deemed neutral even if the restriction affects some speakers or messages and not others. See id. Initially, it would appear that section 316.3045(1)(a) does not regulate expression based on the content of the message as it bans all amplified sound coming from within the interior of a motor vehicle that is ‘plainly audible’ beyond twenty-five feet from the source. In short, the statute proscribes excessive sound emanating from vehicles on public thoroughfares. Subsection (3), however, excepts ‘motor vehicles used for business or political purposes, which in the normal course of conducting such business use [sound-making] devices’ from this broad proscription.”  Pp. 14 – 15.

Therefore, the Statute was not unconstitutionally vague because ordinary persons could understand the scope of the prohibited acts but was unconstitutionally overbroad because it exempted certain speech and thereby favoring one speech (political and business) over another (for example, playing loud rock music).

Constitutional Free Speech Invalidates False Claims of Military Honor Act

The U.S. Supreme Court in U.S. v. Alvarez, Case No. 11-210 (June 28, 2012) (available here) ruled that the Stolen Valor Act, 18 U.S.C. sec 204(b) and (c) was an unconstitutional abridgement of Free Speech under the First Amendment. The Act made criminal false claims about receipt of military decorations or medals, such as the prestigious Congressional Medal of Honor.

Lying was Defendant Alvarez’s habit. He “lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for that lie [was alleged to] violate[] a federal criminal statute, the Stolen Valor Act of 2005. 18 U. S. C. §704.” Slip opn. p. 1 (herein “P. 1″).

As a general matter, the First Amendment “means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content… Instead, content-based restrictions on speech have been permitted, as a general matter, only when confined to the few ‘historic and traditional categories [of expression] long familiar to the bar,’ Id., at ___ (slip op., at 5) (quoting Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (KENNEDY, J., concurring in judgment)). Among these categories are advocacy intended, and likely, to incite imminent lawless action, see Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam); obscenity, see, e.g., Miller v. California, 413 U. S. 15 (1973); defamation, see, e.g., New York Times Co. v. Sullivan, 376 U. S. 254 (1964) (providing substantial protection for speech about public figures); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974) (imposing some limits on liability for defaming a private figure); speech integral to criminal conduct, see, e.g., Giboney v. Empire Storage & Ice Co., 336 U. S. 490 (1949); so-called ‘fighting words,’ see Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); child pornography, see New York v. Ferber, 458 U. S. 747 (1982); fraud, see Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976); true threats, see Watts v. United States, 394 U. S. 705 (1969) (per curiam); and speech presenting some grave and imminent threat the government has the power to prevent, see Near v. Minnesota ex rel. Olson, 283 U. S. 697, 716 (1931), although a restriction under the last category is most difficult to sustain, see New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam). These categories have a historical foundation in the Court’s free speech tradition. The vast realm of free speech and thought always protected in our tradition can still thrive, and even be furthered, by adherence to those categories and rules.” P. 5.

Falsity alone does not normally suffice to bring the speech outside the First Amendment. In “some instances of defamation and fraud, moreover, the Court has been careful to instruct that … [t]he statement must be a knowing or reckless falsehood.” P. 7. See Sullivan, supra, at 280 (prohibiting recovery of damages for a defamatory falsehood made about a public official unless the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not”); see also Garrison, supra, at 73 (“[E]ven when the utterance is false, the great principles of the Constitution which secure freedom of expression . . . preclude attaching adverse consequences to any except the knowing or reckless falsehood”); Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U. S. 600, 620 (2003) (“False statement alone does not subject a fundraiser to fraud liability”). P. 7.

“Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.” P. 11. 

“The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth… The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person. And suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.” PP. 15-16.

In summary, the Court ruled that such statutes, like the Stolen Valor Act must include an element of fraud or misrepresentation, not just falsity, to pass muster under the First Amendment. P. 7 (fraud), 11 (material gain), 13 (casual link between restriction and injury to be presented).

Florida Bar Advertising Rules Constitutionally Attacked

The Florida Bar and William Harrell, Esq. of Jacksonville, Florida, crossed swords in the Eleventh Circuit Court of Appeals over the Bar’s Advertising Rules and Harrell’s constitutional right of free speech. The result was a partial win for both sides. Harrell v. The Florida Bar, Case No. 09-11910 (11th Cir. June 17, 2010) (available here). The lower court ruled on summary judgment dismissing Harrell’s constitutional first amendment, free speech challenge to a number of advertising rules. The 11th Circuit reversed in part, remanded in part and affirmed in part the lower court. Harrell’s core challenge centered on the use of his slogan — “Don’t settle for less than you deserve”– that he included in his advertisements for years.

However, while the motion to dismiss was pending in the trial court, Harrell received a letter from the Bar informing him that the Bar’s Board of Governors reversed sua sponte the Standing Committee’s earlier judgment that the slogan “Don’t settle for less than you deserve” characterized the quality of Harrell’s services and violated Rule 4-7.2(c)(2). The Board of Governors relented on the slogan after months of federal court litigation.

Harrell objected to the following rules: (a) Rule 4-7.1, a general prefatory rule, the comment to which limits permissible advertising content to “useful, factual information presented in a nonsensational manner”; (b) The comment to Rule 4-7.2(c)(1), which bans statements that, “[s]tanding by [themselves,] … impl[y] falsely that the lawyer possesses a qualification not common to virtually all lawyers practicing in Florida”; (c) Rule 4-7.2(c)(1)(D) which prohibits statements that are “unsubstantiated in fact”; (d) Rule 4-72(c)(1)(G), which prohibits statements that “promise[] results”; (e) Rule 4-7.2(c)(1)(I), which forbids lawyers to “compar[e] [their] services with other lawyers’ services, unless the comparison can be factually substantiated”; (f) Rule 4-7.2(c)(2), which bans “statements describing or characterizing the quality of the lawyer’s services”: (g) Rule 4-7.2(c)(3), which prohibits the use of “visual or verbal descriptions, depictions, illustrations, or portrayals of persons, things, or events” that are “manipulative, or likely to confuse the viewer”; (h) Rule 4-7.5(b)(1)(A), which similarly prohibits any television or radio advertisement that is “deceptive, misleading, manipulative, or that is likely to confuse the viewer”; and (i) Rule 4-7.5(b)(1)(C), which prohibits “any background sound other than instrumental music.”

In September 2008, the parties filed cross-motions for summary judgment. In a lengthy opinion, the district court granted summary judgment in the Bar’s favor, holding that Harrell’s challenge to the rejection of (a) his slogan was moot, (b) that he lacked standing to challenge the application of the nine aforementioned rules, and (c) that such a challenge in any event was not ripe. Further, while his attack on the Bar’s 20 day pre-filing rule was justiciable, on the merits that requirement did not violate the First Amendment because it did not constitute an illegal prior-restraint on speech. On this last point (the 20 day rule), the 11th Circuit agreed with the Bar and the lower court.

Although the rejection of his slogan (“Don’t settle for less than you deserve”) may have spurred Harrell to file this lawsuit, the heart of his case was a broad challenge to nine provisions of the Bar’s advertising rules on First and Fourteenth Amendment grounds. Harrell asserted, under the 14th Amendment, that the Bar’s Advertising Rules were void due to vagueness. Harrell claimed that all nine rules were “invalid in toto[,] and therefore incapable of any valid application.” Steffel v. Thompson, 415 U.S. 452, 474 (1974). Harrell claimed that the rules specify “no standard of conduct … at all … [and] simply ha[ve] no core.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7 (1982).

The 11th Circuit reversed the trial court on some issues and held that Harrell had standing to facially challenge Rules 4-7.1, 4-7.2(c)(1)(G), 4-7.2(c)(2), 4-7.2(c)(3), and 4-7.5(b)(1)(A) on vagueness grounds. For these five rules, Harrell’s claims satisfied the causation and redressability components of the standing inquiry. Harrell’s stated a “cognizable self-censorship injury, … arguably caused by the challenged rules’ alleged vagueness. As for the redressability prong, if the challenged rules are stricken as unconstitutional, Harrell simply need not contend with them any longer.” Harrell v. The Florida Bar, slip opn. 28.

 “As for the remaining four rules, however, Harrell has not shown an injury-in-fact, and he therefore lacks standing to challenge them. Specifically, he has not explained, either textually or by example, how there is any arguable vagueness in the rule prohibiting statements that are ‘unsubstantiated in fact,’ Rule 4-7.2(c)(1)(D); in the rule prohibiting any communication that ‘compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated,’ Rule 4-7.2(c)(1)(I); in the rule prohibiting ‘any background sound other than instrumental music,’ Rule 4-7.5(b)(1)(C); or in the rule against misleading advertisements, to the extent it prohibits a statement that, ‘[s]tanding by itself[,] … implies falsely that the lawyer possesses a qualification not common to virtually all lawyers practicing in Florida,’ Rule 4-7.2(c)(1), cmt.” Id.

 The 11th Circuit did not express an opinion as to the merits of the claims– only that Harrell made a sufficiently credible showing that the rules are unconstitutionally vague on their face. The district court will not hear these claims on the five challenged rules (useful, factual information; no promised results; describing quality; confusion).