As a reputation management pioneer, Nick has the inside scoop on all things Reputation Management. This blog will focus on Reputation, practices, technologies, providers and re-shared content from some of the preeminent players in the industry. We hope you enjoy!

Posts By: Curator

The Perkins v. LinkedIn Class Action Settlement Notification Was Badly Bungled (Forbes Cross-Post)

Recently, millions of LinkedIn users received an email titled “LEGAL NOTICE OF SETTLEMENT OF CLASS ACTION.” The email told recipients about a proposed class action settlement in Perkins v. LinkedIn, involving “LinkedIn’s alleged improper use of a service called ‘Add Connections’ to grow its member base.”

This email attempted to inform the purported victims of their settlement options. Class members can ask for cash from a settlement fund, opt-out of the settlement and pursue an individual lawsuit, communicate their objections to the settlement and hope the judge reforms its terms or scuttles it entirely, or do nothing. The email also links to a class action settlement-specific website that provides more details.

Communicating with a large class of millions of victims is never easy, but this particular notification was handled particularly poorly. Let me highlight six problems with the notification:

1) Sending the notification on late Friday afternoon. As every PR executive (and the NSA and FBI) knows, if you want to deliver bad or embarrassing news, do so on late Friday afternoon. Any press outlet covering the news immediately will run their stories on Saturday, when readership is lowest, or will do a recap on Monday, when the news feels a little stale. By delivering the email on late Friday afternoon, LinkedIn seemingly minimized any bad press related to the Add Connections feature and case settlement.

However, delivering an email on late Friday afternoon almost certainty reduces email readership. Late Friday afternoon is a time when many people have schedule conflicts, such as traveling, family and social gatherings, and observing Shabbat. The emails aren’t likely to be opened immediately, so they will get buried under new emails accruing over the weekend. If the sender’s goal is to reduce the number of people who open the email, late Friday afternoon is a fine choice. (As this article explains, “Weekends tend to have low open rates, so most marketers avoid them like the plague”). Thus, the timing of the Perkins v. LinkedIn settlement notice probably didn’t maximize class members’ awareness of their legal rights.

(Note: the settlement notification in the Facebook Sponsored Stories case was also sent late Friday afternoon, presumably for the same reasons).

2) Terrible subject line. Email subject lines create the email’s first impression to recipients, so they require special finesse. This particular subject line wasn’t handled skillfully. The subject line was written in ALL CAPS (a usability no-no), starts with the scary words “legal notice,” and opaquely indicates a “settlement of class action.” Based solely on the subject line, this email looks like a possible phishing attack similar to a Nigerian 419 email scam; or it looks like part of a trolling campaign where plaintiffs (like copyright owners) threaten Internet users with litigation that can be settled for a low amount. We’ve taught email users to delete phishing attempts without opening the email, and other recipients might ignore the email hoping any trolling demand just goes away. As a result, the subject line discouraged email opening.

The email’s real message is that recipients might be entitled to free money. Communicating that message in the subject line would certainly improve email open rates if it could be done without looking like a phishing attack.

3) No notice within LinkedIn. Sending official legal notices via email will always have challenges about subject lines, delivery times, spam filters, etc. As a result, it’s advisable to use additional media to reach class members. Here, it would make sense to notify LinkedIn members about a LinkedIn matter ON LINKEDIN. After all, being a LinkedIn member is the one thing every class member has in common with each other, and a message on LinkedIn would avoid some of the standard email problems. If there was any notification on LinkedIn about the class settlement, I didn’t get it, nor could I find any announcement about the settlement in my LinkedIn newsfeed or an ad widget. I understand why LinkedIn wouldn’t want to communicate with its members about this potentially embarrassing and brand-damaging settlement on its own site, but not using the most logical way to reach class members is baffling.

4) Unclear how to claim the cash. Because most people want the cash, the instructions on how to get it are especially important. Here’s what the email notice said about how to get the cash:

perkins v linkedin screenshot

If you can’t see the image, here’s the key language:

SUBMIT A CLAIM FORM / If the Court gives final approval to the Settlement, this is the only way to be eligible to receive a payment. / Deadline: December 14, 2015

OK, sounds good, I’d like to do this, and I’m worried about the scary deadline. Now what? The email itself provides no further instructions on how to “submit a claim form,” nor does the email provide a direct link to the claim form even though that would be easy to do (plus the email confusingly provides a series of unrelated links immediately above this language). Eventually, anyone determined enough to get the cash will visit the class action settlement website and navigate around to find the link to the claim form. But given most recipients want to know how to get the cash, why did the senders make it so hard to figure that out? And how many people gave up because even this small hurdle was more than they were willing to overcome?

5) Overloaded website. Even if you try to bury the news on late Friday afternoon, if you notify millions of people that they may be entitled to cash, you can reliably predict that the website will get A LOT of traffic. It makes sense to work with a content delivery network and an industrial grade server farm to ensure adequate excess capacity during the initial crush. Instead, this settlement website was not up to the task. Throughout Friday afternoon, it was so overloaded that I couldn’t access the website at all in either Chrome or Firefox. The traffic crush has apparently died down, so the website works fine now. But how many class members, unable to access the website when they first opened the email, simply gave up and decided it wasn’t worth the effort?

6) Increased security risks by submitting a claim. The claim form gives two options of how to get paid. The first option visually dominates the form and asks for bank account information so that the cash may be sent electronically. Below that is a second, less visible option to get a check. Moving money electronically will be cheaper and faster for the settlement administrators, so it’s not surprising that this option got prominent billing.

However, all of the personal information gathered from class action settlement claims creates a new security vulnerability; it’s a hacker honeypot. Putting bank account information into that database makes the target much, much juicier to the bad guys, which magnifies the security risk. Perhaps the settlement administrators have such industrial-grade security that it can fend off any attack from the bad guys, but given the avoidable server overload initially, I highly doubt it. Instead, the increased security risk creates an irony: the lawsuit was designed to remedy a purported privacy violation by LinkedIn, but the solution exposes the victims of that alleged privacy violation to additional security risk. I discuss this conundrum in more detail in my article, The Irony of Privacy Class Action Litigation.


I can’t advise you whether or not to tender a claim for cash or pursue the other options. However, if anyone objects to the proposed settlement, the botched execution of the settlement notification has given several new grounds to raise objections. If I were the judge, I would require the parties to redo the emailed settlement notification properly.

I have no opinions about the substantive merits of this particular lawsuit, but I have a general skepticism about the merits of privacy-related class action lawsuits as a way of remedying the purported problems. In this case, I will be keenly watching the number of claims tendered by users, as well as the transaction costs incurred to get money into the alleged victims’ hands, to see if we can declare in the end that justice was served. (For an example of just how out-of-whack these numbers can be, see the Heartland Payment settlement involving 130M purported victims, a 0.00000846153846153846% notification response rate, and about $1k of transaction costs per individual claim tendered). Even if you end up getting a check (probably a few years from now) from LinkedIn to settle this case, ask yourself if you honestly believe that this process and that money was the best way to solve the purported problem.

Source: Goldman Legal

Beyond Responsive: Design and Development Trends for Adaptable Marketers

Posted by Carson-Ward

A friend of mine recently asked me to review and explain a series of site recommendations sent over by a well-known digital marketing agency with roots in SEO. We talked through the (generally good) recommendations for content and search optimization, and then we got to this:

“* Mobile accounts for 53% of your traffic. We recommend building a mobile-friendly responsive website. Google recommends using responsive design so that your site looks good on all devices, and it may help increase mobile rankings.”

And that was it. A bullet point that says “build a responsive site” is like getting a home inspection back with a bunch of minor repairs and a bullet point that says, “Also, build a new house with modern specs.”

We, as professional marketers, need to realize that this advice is not good enough. We’re not helping anyone with broad statements that give no guidance on where to start or what to think about. Google might recommend responsive, but that doesn’t mean it’s the only option or that it’s always the right option. Even if it is the right option, we need to have some idea on how to do responsive right.

If we’re going to tell people to redesign their websites, we’d better have something more profound than a single bullet point on a 20-page document. Implying that “Google will reward you for responsive” and leaving it at that could do more harm than good. It also misses a tremendous opportunity to help clients build a great website with an awesome user experience.

It’s fine if you’re not well-versed in site architecture, design, user experience, and/or user intent. Just don’t mention a gargantuan project like a site redesign if all you have to say is “build a responsive site, because Google.”

This post is a look at how companies are handling the future of the web, for better or worse. My goal is to help SEOs, content marketers, and all other digital marketers to speak more intelligently about responsive, mobile, and other design and development trends.

Don’t follow the crowd: you risk going full Windows 8.

We learned some important lessons about cross-platform design from the disaster that was Windows 8. It was a mess for lots of reasons – and yet I see the same people who mocked Windows 8 beginning to make some of the same mistakes on their websites. For those who never used Windows 8 in its early days, let me explain why it was so bad.

  • “Metro” (or “Modern” or whatever) shunned navigation for modern simplicity. It featured big icons – and no clear way to do more than click icons. Desktop users hated it.
  • There were a bunch of useful features and options most people never knew about hidden in sub-navigation. Windows 8 could actually do some cool new stuff – but few people knew it could, because it wasn’t visible.
  • Users didn’t know how to do what they wanted. Menus and buttons were shunned in favor of bloated pictures of app icons. Common features like the start menu, control panel, and file search were suddenly moved to non-standard places. Thousands of people turned to Google every month to figure out how to do simple things like turn their computer off and run a search. That’s RIDICULOUS.

A small sample of people asking Google to help them navigate a Microsoft product. Also interesting: Windows 7 has always had lower searches for these terms despite 4-5x the number of active users.

Now here we are, three years later, watching the web go full Windows 8 on their users. Menus are scaled down into little hamburgers on desktop. Don’t do that! You’re alienating your desktop users just like Windows 8 did. Users have to click two or three times instead of just once to find what they need in your menu. And don’t kid yourself: You’re not Windows. No one’s going to ask Google how to use your site’s nav. They’re just going to look at result number two.

Let’s look at an example of making the Windows 8 mistake on the web. Let’s go big. Let’s go Honda.

This is what happens when you take a design trend and try to force it on your corporate site without thinking about users or why they’re coming to your site. What does this site sell? Dreams? Clouds? Stock images? The text on the page could be placed on almost any corporate site in the world. Honda has gone full Windows 8 on their corporate site.

Aside: I’m picking on Honda because I know they can take a beating here and keep running – just like my CR-V (which I love).

I’m obviously not a fan of the expanding mobile-style navigational menu on desktop, but Honda blew me away with an overly-complicated mess of a menu.

I understand the company makes major engines, boats, and aircraft parts. Having lots of parts to your business doesn’t mean that each part deserves equal emphasis. Honda needs to step back and ask what users want when they get to the site, and realize that it’s unfeasible to serve every intent – especially if it wants to maintain its simplistic design.

What about the competition?

Toyota and other competitors know most users visiting the site want to look at automobile options or find a dealer. Both Honda and Toyota have sites for racing, and both companies sell industrial engines. But Toyota understands that most users landing on want the consumer brand, and that racing enthusiasts will Google “Toyota racing” instead. There’s also a link way down in the footer.

The exception to the rule of avoiding what I’m calling mobile-only design might be a design firm. Here’s Big Spaceship’s site. They’re a design agency that knows more about web design than I ever will. It’s a great site, and it’s probably going to get them sales. Do not copy them. Don’t imitate a design agency’s website unless you are a design agency. I’m talking to you, Honda.

When a user visits a design firm’s site, they want to see the company’s skills. Design agencies like Big Spaceship are wise to immediately showcase and sell users on their design capabilities. In essence, the home page acts as a full-page product shot and sales page.

I’ve seen SEO/Design/Marketing agencies create what are essentially design-only websites, and then wonder why no one is interested in their SEO services. I’ve seen product companies use a logo + hamburger menu + massive product image layout and have problems selling anything but the product featured in the first image. That’s what you get for copying the cool kids.

It only makes sense to show one thing if you only do one thing. Good design in Amazon’s case is very different. Amazon has millions of products, and they don’t want people clicking through categories, choosing the wrong ones, and getting lost or frustrated. The search function is key with a mega-site: thus the not-so-pretty search bar on every Amazon page.

Align your users’ intents with nav items and landing page content. Show them how to browse or search your goods and services without making them click unnecessarily. Keep browse-able items to a manageable level, and make sure you have a simple click path to things people want to do on your site. Look at how Medium aligns intent with design.

Simplicity works for Medium posts: the user wants to read the post they’ve landed on, and the focus of the site’s design is on reading the post. Medium will hold off on getting you to read or share more until you’re done reading. Most of those calls to action are at the bottom of the article. Now look at the home page.

Smart. When someone lands on a post, they want to read the post. So show them the post! When someone lands on the home page, their intents vary. Give them options that aren’t hidden behind a hamburger menu. Show them what they can do.

Figure out what your users want to know or see, and build those elements prominently into the site. Don’t blindly copy web design, or you risk following Windows 8 in alienating your core users, especially on desktop.

So how do you know what your users want to see?

1. Run on-page surveys

One of the best ways to figure out what people are looking for is to ask them. Don’t continually annoy people with popups, but if you’re just starting out it’s worth gathering the information up-front. Ask people what they’re looking for when they visit your site. We use Qualaroo, but there are lots of simple tools that can be implemented quickly.

If you already know what people are looking for, you should make sure you know what their primary considerations are for buying. Does price matter to them more than power or quality? If price matters most to your buyers, price should be featured prominently in the design.

2. Use split tests to understand intent

There are lots of reasons to run split tests, and the focus should usually be on conversion. The problem is that sometimes we focus exclusively on which version converted better, and forget to ask why.

We use Optimizely, and it’s awesome. We also keep a log of test results with our pre-test hypothesis, pages tested, a link to results, and why we think it won. Then we try to think about the implications if we’re right about our conclusion.

  • Where else might we be making the mistake of the losing version?
  • What other pages are impacted if we’re right about what our users want?
  • Is there content we can create to solve the users’ problems? Are there key pages or explanations that are missing?

It’s a little bit dangerous to over-apply a single test’s conclusions on the whole site, so this usually leads to more testing. After three or four tests you might be ready to make moderate changes without running a split test, allowing you to move on to the next big test.

3. Look at in-market segments

Try to figure out where your users are mentally by looking at in-market segments. Don’t mistake in-market segments for what users are trying to buy. Instead, use it to understand what else the user has been looking at. Here’s a site we work on, for example:

So what is this telling me on our home services site? What do real estate, employment, hotels, new cars, and home furniture have in common? These are all things people need if they’re moving. If we’re smart about it, our site should have messaging and navigation options clearly intended for people who are moving. Maybe moving guides would be a good content idea. These are all opportunities that go unnoticed if we’re only focused on what people want to buy.

Some sites are going back to mobile sites, and that’s okay

It’s been said that Google “likes” responsive design and will reward responsive sites with higher search rankings. I disagree on that second point. Google likes sites that give the user what they want, regardless of the technology used.

Yes, Google has recommended responsive design. So do I, but I do so because it’s by far the easiest multi-device approach to maintain and the hardest to completely mess up. That doesn’t mean it’s the only way, and that does not mean that Google will penalize a site for providing a superior mobile experience in a different way.

There are lots of benefits to mobile sites. On some sites the intent and behavior of mobile users is different enough from desktop users that it justifies creating a mobile-specific experience. It’s also compatible with the goal of a fast-loading site.

Responsive sites are generally much slower to load, according to a report from The Search Agency.

You can and should make your site fast with responsive, but there are a host of reasons most responsive sites end up slower on mobile. Both dynamically-served sites and mobile sites naturally lend themselves to building with speed in mind. A mobile-specific site can also offer an experience that is ideal for the user intent at that time.

This past July, Cindy Krum talked about “mobile intent” during her Mozcon presentation. It might sound like a buzzword, but it’s true that mobile users are in a different spot. They’re not looking to compare as much. They want to either buy quickly or get some quick details on the product.

If you’re thinking about doing a mobile site, make sure you have lots of people ready to build it out correctly and maintain it. Don’t underestimate the dev time it will take to make the entire site work. You’ll need SEOs who know how to set up rel tags and ideally make sure the mobile site has an identical URL structure. You’ll need lots of QA to make sure all your page types are being served correctly.

Some SEOs will say that a mobile sub-domain or sub-folder is worse for SEO because links to one won’t count as links to the other. Nonsense! That’s what the rel=”canonical” and rel=”alternate” tags are for. Just like fretting over non-www 301 redirecting to the www version, these are things that made a big difference at one point, but are no longer as essentially important as they were. Google is smart enough to understand what’s happening – unless you don’t implement them correctly.

Responsive design is still a better option for most companies, but there’s no reason to be dogmatic about it. There’s a reason Google gives you three options. A mobile site can work for larger companies, and is often the best option for mega e-commerce sites.

Web development continues to evolve – including JavaScript libraries

JavaScript usage is place where the SEOs are often guilty of giving dated advice. SEO should enable great content to appear to more people in more searches. SEO should not be used to restrict useful content creating tools unless absolutely necessary.

Traditional SEO wisdom has always been to avoid putting any content into JavaScript that we want the crawlers to see. This is outdated advice for websites in 2015. Libraries like React and Angular can be amazing tools. They’re full of features, fun to use, and can make your website feel faster and more responsive.

If Google wants to reward a positive user experience, and if JavaScript can help site owners provide a stellar user experience, then SEOs should embrace JavaScript. Rather than lobbying against any JavaScript on the site it’s time to get a little more sophisticated in our approach to help the team use their tools correctly.

React and Angular can definitely make your dynamic content more fun to use, but they also make heavy use of AJAX-like client-side execution, which Google doesn’t really understand (yet). Developers and SEOs should be aware of how to make it work.

Making AJAX Google-friendly could be its own post. In fact, there are already several great posts. Google also has some great guides – make sure to check the linked resources, too. One small warning: there’s a lot of outdated info out there on the topic.

You can get around a lot of the nitty-gritty technical SEO using things like Prerender or V8. Try to find a tool that will automatically generate a crawlable version while using AJAX. Communicate with your developers to find a solution that works with your setup.

A humbling example

As I said, it’s important to make sure that you communicate with developers before construction begins. I’ll use a painful recent experience as an example. We just built a react-based tool that helps beginners estimate how much internet speed they need. It immediately redirected all visitors to a URL with a hashtag and the rest of the survey is behind a hashtag. And none of the text could be crawled without client-side execution.


We built an awesome tool, and then hid it from Google. Someone fire the guy who missed that… just don’t tell anyone it was me. We used React.js here, and it was a blast. We’ve also received great feedback from users. The lesson here is not to avoid React and AJAX. The lesson here is to communicate SEO requirements to the developers early. The fix will be done soon, but it took a lot longer than if I’d done my due diligence beforehand.

Understanding Google-friendly JavaScript implementation is the job of every SEO. Other digital marketers should at least be aware that there’s a potential problem and a technical solution.

I love interactive tools that are fast and useful. SEOs should be facilitating the building of things that are awesome. That means helping find solutions rather than lobbying against an entire toolset that’s widely used on the modern web.

Don’t forget About indexable apps

Google can now index and rank apps, and they have some decent guidelines on how to do it. It’s possible that app-based companies with an exclusively mobile client base don’t even need a traditional website.

Most companies will still want to build and maintain websites, but be open to the idea that a responsive site might not be the best option for a small mobile game developer. The right option might instead be to add links to content and discussion and then support deep linking within the app.

Even if app-only isn’t the right option, consider that content within apps could be a more engaging medium for people who have already installed the app. For example, a discussion board for players of the game might work better within the game app itself. It could definitely feel more engaging and immersive if users never have to leave the app to ask a fellow user a question or rant about the latest update.

Final thoughts

A site might look awesome when you shrink and expand the window while presenting the design to the c-suite, but if the real decision makers, the users, don’t know what a cheeseburger menu is, you’re not going to sell very many stock photos of earth. Responsive design is a great option – often the right option – but it isn’t the only option. Hopefully this post can help get some thoughts started how to do responsive right.

I’m absolutely not saying that responsive is dead. My point is that if our advice drifts into design and development we should be able to give more concrete advice. Don’t just build websites that respond to screen size. Build websites that respond immediately to your customer’s needs.

Sign up for The Moz Top 10, a semimonthly mailer updating you on the top ten hottest pieces of SEO news, tips, and rad links uncovered by the Moz team. Think of it as your exclusive digest of stuff you don’t have time to hunt down but want to read!

Source: Moz

Threatening to Post Sex Video to Facebook Isn’t a True Threat

Two post-Elonis cases show divergent approaches to true threat and harassment jurisprudence.

Harrell v. State (Georgia): Harrell was charged and convicted of attempting to intimidating a court officer and animal cruelty. Apparently, he was charged with some violations as a landlord and did not appear, and a warrant was issued for his arrest. He reached out to two superior court clerks and tried to “persuade” them to withdraw the warrant for his failure to appear. The entire factual recitation of what Harrell was alleged to have done is worth quoting in full:

[T]he evidence showed that . . . [o]n April 29, 2013, Harrell placed messages on the internet site Facebook that referred to Dodge County Superior Court Clerk Rhett Walker and Deputy Chief Clerk Tammy Graham. One post threatened that if the bench warrant was not lifted, Harrell would post an internet link to a video which he claimed showed Graham engaging in sexual activity with Harrell and two other men; no such video existed. Harrell also posted a claim that Graham had lied to the court regarding whether Harrell had been served with notice of a hearing regarding the accusation that he violated the duties of a landlord . . . . In another post, Harrell listed Walker’s personal cell phone number and urged readers to call Walker to tell him to leave Harrell alone while he was “on the run,” and thus not ruin Harrell’s “chicken foot eating victory.” Harrell also initiated telephone communication with Walker in an attempt to persuade him to lift the bench warrant, saying that if he did not do so by a certain date, Harrell would “turn [Walker’s] world upside down,” and that “you know what will happen on Facebook.”

At trial, evidence was also presented that on April 15, 2013, Harrell left two voice mail messages intended for Shirley Webb, Harrell’s former girlfriend and the mother of two of Harrell’s children. In one message, Harrell stated that he was Sid Carter, Webb’s current boyfriend, was placing the call from the cell phone of Harrell’s son, and referred to a “dead pussy” in Webb’s mailbox. In the other message, Harrell implied that he intended to upload pornographic videos of Webb to an internet site. That same day, Carter, who lived with Webb, found a dead cat in their mailbox when he checked the mail. As Carter called 911 from his cell phone to report the dead cat, Harrell drove by the house, slowed down considerably, rolled down a window, and pointed at the mailbox containing the dead cat before driving away. Carter and Webb later found an animal trap on a portion of Harrell’s property which adjoined Webb’s.


Harrell was charged under a statute that prohibited anyone from:

Endeavor[ing] to intimidate or impede any grand juror or trial juror or any officer in or of any court of this state or any court of any county or municipality of this state or any officer who may be serving at any proceeding in any such court while in the discharge of such juror’s or officer’s duties.

The court says that under Virginia v. Black, states may criminalize true threats, which it says are defined as statements where the speaker intends to create a fear of bodily harm. Under this standard, none of Harrell’s statements qualified. His posts to the Facebook group “DixieMafia,” while embarrassing and even caustic, did not intend to place anyone in fear of harm. Nor did the putative victims testify that they were placed in any fear of harm as a result of his statements. While the statute also prohibits someone from “impeding” a court officer, Harrell was not charged with this. And the court intimates that given his speech was not unprotected, nor could he have been.

As to the animal cruelty charge, the court says it was improperly joined with the intimidation charge. This court reverses, but notes that he can be retried for it.

Case citation: Harrell v. State, 2015 Ga. LEXIS 694, *1 (Ga. Oct. 5, 2015) [pdf]

People v. Murillo (California): Murillo was an aspiring rap star apparently. He was friends with Villalpando, who was convicted of several counts of unlawful sex with a minor (from his conduct with two different minors). Murillo posted messages to his Facebook account about a song he wrote and performed (titled “Moment for Life Remix”).

The song stated that he missed Villalpando. It also referenced the two victims by first name and described the girls as “hoes”. He went on to say:

[T]hese b#$* caught him [Villalpando] slipping
Then they fucking snitching
I’m f*$& all these b*#$
Hunting down all these snitches
Shit you know we have no fear
I’ll have your head just like a dear
It will be hanging on my wall . . .
You’re going to be laying on that bed
Cuz im coming for your head b(*#$

Murillo’s high school dean apparently put pressure on Murillo to remove the song. In response, Murillo said the dean was a “dumb ass” and . . . “805 hoes on blast lol”.

One of the victims saw the link, listened to the song, was frightened, and complained to her mom and ultimately to law enforcement. [The song was downloaded 1,089 times and played 23,468 times.]

The magistrate preliminarily reviewed the charges and found that there was no “willful threat to use force” against either of the victims. The California Court of Appeals disagrees. The court notes that the underlying threat statute has been construed to cover threatening statements “that a reasonable listener would understand” as a threat. In the circumstances, the court says that a reasonable listener could have understood “Moment of Life Remix” to embody threats to the two victims. The court noted that it requested briefing in light of the Supreme Court’s ruling in Elonis but both parties agreed that since Elonis ultimately relied on statutory interpretation to determine the minimum mens rea required under the federal threat statute, it was not relevant.

Case citation: People v. Murillo, 238 Cal. App. 4th 1122 (Ca At. App. 2015) [pdf]


Harrell cited Virginia v. Black for the proposition that true threat requires subjective intent to make a threat. It does not mention Elonis. (Some state courts hew to the view that Black requires intent but numerous others do not.) Murillo does not mention Virginia v. Black and says that Elonis is not relevant to the question of whether the subjective or the objective test applies. The different legal standards cause sharply different results.

There’s an argument to be made that while Elonis did not rule that negligent is insufficient as a matter of First Amendment law, it still relied on general principles of criminal culpability, and those would be relevant in determining the mens rea required under a state statute. The EFF and ACLU of Southern California make this and other arguments in an amicus letter. (See “EFF Urges California Supreme Court to Hear a Bad Rap Lyrics Case“.)

Regardless of the outcome, these cases show the minimal direct effect of Elonis on state law prosecutions for threatening speech. It fizzled as a First Amendment case in this regard.

Related posts:

Court Rejects First Amendment Challenge Against Cyberharassment Charge

Criminal Harassment Charges Survive First Amendment Challenge, Even Without The Threat of Personal Injury

Appeals Court Affirms Harassment Order Based on Vague Testimony of Indirect Contacts

Facebook Complaints About Boss’s Creepy Hands Can’t Salvage Retaliation/Harassment Claims

Landlord May Be Liable When A Tenant’s Facebook Harassment Leads To A Rape (Forbes Cross-Post)

Facebook Posting That Someone Has Herpes Is Criminal Harassment–Pennsylvania v. Cox

New Jersey Appeals Court Reverses Anti-Harassment Order Based on Emails – E.L. v. R.L.M

What Do Soymilk and Nutella Have to Do With an Online Harassment Case?–Taylor v. Texas

Posting Family Photos to Facebook With Snarky Comments Isn’t Harassment of Family Member — Olson v. LaBrie

Employee Wins Harassment Claim Based in Part on Co-Workers’ Offsite Blog Posts–Espinoza v. Orange

Unregulating Online Harassment Essay

Yahoo Wins Online Harassment Case Under 47 USC 230

University Cannot Discipline Student for Off-Campus Tweets

Sisterly Online Squabbling Isn’t Criminal Stalking–People v. Selinger

School District Wrongly Disciplined Student for a Two Word Tweet

When Can Defendants Defeat A Criminal Threat Prosecution By Claiming They Were Joking? Not Often

North Carolina Cyber-Bullying Statute Survives First Amendment Challenge

Federal Criminal “True Threats” Require More Than Negligence–Elonis v. U.S.

Court Rejects Bizarre Attempt To Scrub Consumer Review–Goren v. Ripoff Report

Court Says Uber and Lyft Drivers May be Employees

Source: Goldman Legal

Steve Wynn Files Another Defamation Suit

Steve Wynn is a plaintiff in a new defamation suit — this time in Boston. The Boston Globe reports: In a lawsuit filed Monday in Suffolk Superior Court, Wynn Resorts Ltd. says unknown defendants defamed the company by providing subpoenas to the media related to a City of Boston lawsuit against the Massachusetts Gaming Commission. […]
Source: randazzablog

Using State Law to Counter a Business Defamation Claim

by Jay Marshall Wolman Readers of this blog know that Marc is giddy that the Federal Trade Commission has sued Roca Labs.  One of the more interesting features of the suit is that the FTC argues that legal action arising from negative reviews, which the FTC terms “gag clause practices”: not only injure the purchasers […]
Source: randazzablog