Topic: Legal

Legal side of Reputation Management

Politician Can’t Ban Constituent From Her Official Facebook Page–Davison v. Loudoun County Supervisors 0

Screen Shot 2017-07-27 at 6.05.00 AMThis is a First Amendment social media case, where the plaintiff was banned for a 12 hour period from the defendant’s ostensibly official Facebook page. My prior blog post. Following a bench trial, the court finds in favor of plaintiff on his First Amendment claim. In other words, the court finds that even a short term ban of a constituent from a public official’s social media page violates the First Amendment.

The court’s findings of fact regarding the defendant’s social media activities include:

  • She had a campaign page (“Friends of Phyllis Randall”), and the day before she was sworn into office, defendant asked her constituents to visit her official page;
  • She created the Facebook page outside the County’s channels, and her page will not revert to the county after she leaves office;
  • She’s listed as a “government official” in the about section;
  • She routinely uses the page for official proclamations and encourages constituents to contact her through the page (so official records are kept);
  • She addresses her constituents through her posts and also submits posts “on behalf of the Loudon County Board of Supervisors”;
  • She engages with constituents in the comments section.

The court then turns to the question of whether defendant was acting under color of state law in maintaining the Facebook page. Applying a totality of the circumstances analysis, the court says it’s clear she was acting under color of state law in maintaining the page and banning plaintiff. (While banned, the court notes that plaintiff could still view and share the content in question but could not comment on it.) The key question thus is whether defendant’s actions violated plaintiff’s First Amendment and Due Process rights.

The court says that the First Amendment claim against defendant in her official capacity fails because she was not acting pursuant to any official policy in banning the defendant. However, the court says that plaintiff states a claim against defendant in her individual capacity. First, the court says that in creating the “Chair Phyllis J. Randall” page, defendant created a forum:

When one creates a Facebook page, one generally opens a digital space for the exchange of ideas and information.

The court intimates that the forum is a general-purpose public forum, but says ultimately the forum characterization is not critical, as the evidence shows that defendant discriminated based on plaintiff’s viewpoint (which is banned in even a limited public forum). Specifically, the court says it’s clear plaintiff was banned because defendant was offended, and (citing Tam) this is a clear violation of the First Amendment. Apparently, Defendant testified she banned Davison because she decided “decided at that moment that if [Plaintiff] were a type of person that would make comments about people’s family members, then maybe [Defendant] didn’t want [Plaintiff] to be commenting on [her] site.” Defendant argued that the ban’s consequences were minor, but the court says that—in the vital forum of social media (citing Packingham)—even a short ban is consequential:

The Court cannot treat a First Amendment violation in this vital, developing forum differently than it would elsewhere simply because technology has made it easier to find alternative channels through which to disseminate one’s message. Moreover, . . . the government violates the First Amendment by disfavoring “offensive” speech in ways far milder than outright suppression.

The court denies Davison’s Due Process claim, concluding that this is a weak case to require a pre-deprivation hearing. The court also declines to issue injunctive relief.

The court previously issued a summary judgment ruling in this case that also makes for good reading. (Order dated May 12, 2017.) There, the court noted a change in the social media policy and grappled with the “novel legal question” of whether a “social media website may be considered ‘governmental’ for purposes of the First Amendment, notwithstanding that it is controlled privately by a government official.” Ultimately, the court found that factual issues precluded ruling as a matter of law.

Davison, who is well on his way to being a prolific litigant, was also involved in a lawsuit with the Loudoun County Commonwealth’s Attorney, Plowman. There, he squabbled over the Commonwealth’s Attorney deletion of Davison’s comments from the Commonwealth Attorney’s Facebook page. Following a bench trial, the court ruled against plaintiff, finding that the Facebook page was a limited public forum, and the comment in question which precipitated the block was “off-topic.” The Facebook page in question (in contrast to Randall’s page) invited comments only with respect to posted topics. The court found that the policy underlying the ban (allowing “off-topic” comments to be suppressed) was viewpoint-neutral and reasonably related to the forum’s purposes. Therefore, Davison could not state a First Amendment claim for being blocked from the attorney’s Facebook page.


This is obviously a timely and relevant ruling, given the lawsuit against President Trump for blocking Twitter followers. While it’s tempting to distinguish a Twitter stream from a Facebook page (where comments in a typical sense are the norm), Twitter’s format has also changed, highlighting the importance of comments and “threads”. In any event, I’m not sure this is a critical distinction. Much of the ruling’s reasoning is equally applicable to the @POTUS twitter account. What started off looking like a lark of a case could turn into consequential precedent for constraints on the ability of politicians, including President Trump, to block members of the public.

The question of whether the Chair was acting in her official capacity in setting up the account is a difficult one the court struggles with. On the one hand, the rules shouldn’t deprive public officials of the ability to speak in their private capacities and maintain their own social media accounts. On the other hand, to the extent they use an account to disseminate their official messages and tout their public efforts, they should be subject to First Amendment constraints, FOIA, and the rest of the rules that go with channels of official communication. The fact that the court found this to be an official account but then declined to find an official capacity violation threw me for a loop. Perhaps this is a function of the fact that a board functions only through its official actions? Perhaps it’s a quirk of section 1983 litigation?

The same judge handled both of Davison’s cases. The differing results can be explained largely by the availability of viewpoint discrimination evidence, which is often hard to come by. Both policies were lacking in several respects (both in terms of the acceptable topics and criteria for being banned). Ultimately, it’s likely that Phyllis Randall’s testimony in her case was, unfortunately for her, decisive.

Pro se plaintiffs get a bad rap often, but kudos to Mr. Davison for taking this case to trial and setting what looks like it could end up being significant precedent.

Eric’s Comments: Apologies if I’m being with redundant with Venkat. To me, the opinion’s implications are unmistakable: The @RealDonaldTrump account is irrefutably an official government account, and this opinion reinforces that our President repeatedly violates the Constitution when the account blocks other Twitter users by denying them the ability to submit threaded comments in response to a post. Unfortunately, President Trump has so broken so many laws and disregarded the Constitution so often that this particular transgression barely registers as an offense in light of Trump’s legal violations oeuvre.

Case citations: Davison v. Loudoun County Board of Supervisors, 16cv932 (JCC/EDD) (E.D. Va. July 25, 2017); Davison v. Plowman, 1:16cv180 (JCC/EDD) (E.D. Va. Mar. 28, 2017).

Related posts:

County Attorney’s Deletion of Constituent’s Facebook Comment May Violate First Amendment

City Can’t Use Copyright To Censor Critical Videos–Inglewood v. Teixeira

Blogger Can Display County Seal in Blog Posts–Rothamel v. Fluvanna County

First Amendment Precludes Disorderly Conduct Conviction for Ranting on Police Department Facebook Page

Demoting Police Officer for Posting Confederate Flag to Facebook Isn’t First Amendment Violation

Police Officers Lean on School to Fire Social Worker for Facebook Post–and May Have Violated First Amendment

The First Amendment Protects Facebook “Likes” – Bland v. Roberts

Facebook “Likes” Aren’t Speech Protected By the First Amendment–Bland v. Roberts

Source: Eric Goldman Legal

Vegetarian Ethiopian Cookbook Copyright Lawsuit Turns Sour–Schleifer v. Berns 0

Law professors love to riff on the copyrightability of cookbooks because it raises several subtle issues. Are recipes copyrightable? Normally not–at least, not the ingredient lists. Cf. the chicken sandwich case. Are compilations of recipes copyrightable? Sure, but compilation copyrights are thin. Are the photos in cookbooks copyrightable? Yes, but it’s rare those are actually copied. Because there are so many copyrightability/infringement pitfalls, winning a copyright infringement case over cookbook “copying” can be hard. Very hard.

The author of a vegetarian Ethiopian cookbook believed another Ethiopian cookbook infringed his copyright. The court summarizes the alleged copying:

cookbook copying

Ugh. Not surprisingly, the judge is not impressed:

These few common words provide no basis for a copyright infringement claim. First, the factual content describing particular Ethiopian foods, ingredients, or culinary traditions is not protectable as a matter of law….To the extent the two works have general similarities – including the fact that both are about vegetarian or vegan Ethiopian cuisine, the inclusion of illustrations of prepared dishes, and descriptions of foods as spicy, spongy, or the like – these elements simply do not amount to a claim for copyright violation. Instead, they are “scènes à faire”… even the most belabored analysis of plaintiff’s allegations shows that his complaint rests on scattered words and short phrases, neither of which are protectable….I thus reject plaintiff’s argument that his content is “original expression to engage the mind as to the flavors, textures, methods, and practice of the art of Ethiopian cuisine.” His cookbook is no such thing.

Having granted the motion to dismiss, the judge then turns to the question of attorney fees and sanctions. The judge does not mask his irritation with the four (!) plaintiff attorneys from this firm who made an appearance in the case (emphasis added):

an award of costs and fees under the Copyright Act is warranted because the factual and legal contentions plaintiff argued were either frivolous or objectively unreasonable, and there is a need in this case for both compensation and deterrence. First, the unreasonable nature of plaintiff’s claims in this case is manifest. It was objectively unreasonable for plaintiff to have believed that a colorable copyright action exists based on four examples of similar language in what amounts to non-protectable factual descriptions of Ethiopian cuisine and culinary traditions. The unreasonableness of plaintiff’s position is supported by the fact that plaintiff’s opposition to the motion to dismiss contains a mere three-and-one-half pages arguing that his copyright claim was actionable. The vast majority of those pages is the plain recitation of the legal standards, which is to say that plaintiff could not point to any cases that would support his action because there are none. Put differently, plaintiff’s position was so far afield that his attorneys could not even defend against the motion to dismiss.

This objective unreasonableness is compounded by the unreasonable manner in which this case has been litigated, from plaintiff’s failure to properly investigate defendant’s publisher’s letter explaining why his claim lacked merit and the legal arguments, to his infringement allegations regarding content not actually contained in the 2007 Schleifer Cookbook, but rather contained in the 2016 Schleifer Cookbook, to the inclusion of unsupported infringement allegations in the amended complaint that nowhere appear in the 2007 Schleifer Cookbook, to the bald assertion that the 20-page (or 46-page) 2007 Schleifer Cookbook is “identical” to the 82-page 2016 Schleifer Cookbook. These allegations greatly exceed the bounds of fair argument….

No reasonable copyright attorney, or even an attorney who had devoted 20 minutes to legal research, would have filed this complaint. If plaintiff’s attorneys did not do the requisite research when filing the complaint, surely they should have recognized the absence of merit when preparing the opposition to the motion to dismiss….

an award of costs and fees is crucial here, so as to deter this plaintiff, and other similarly situated plaintiffs, from bringing frivolous and objectively unreasonable claims. There is also a need to deter attorneys who fail to comply with their obligations to the Court to research and put forth good-faith claims and defenses….

The same reasons animate the Court’s assessment of sanctions on plaintiff’s attorneys. Their conduct in this case can only be described as bad faith. Plaintiff’s attorneys failed to perform a pre-litigation investigation and then failed to withdraw the claims when, on drafting the opposition to the motion to dismiss, they found no cases supporting their positions. Not only could they not affirmatively support their case, but they could not even address the majority of defendant’s substantive arguments. Plaintiff’s attorneys seemed to have taken the position that they were going to roll the dice even though nothing in law or fact supported their filing or prosecuting this suit.

Given the foregoing, it is appropriate that both plaintiff and his attorneys be jointly and severally liable for the costs and fees, which the Court will assess after submission of billing records by defendant.

I’d be surprised if the plaintiff or his attorneys don’t appeal this ruling, at least to try to get out of the fee shift/sanctions. I approached both sets of attorneys for comment. Defense counsel declined comment. Plaintiff’s counsel did not provide an on-record comment before deadline.

Kudos to this judge for ending this case early and compensating the defendant for the costs of defense. To me, this is exactly what Congress told the courts to do with low-merit copyright cases, but sometimes judges give plaintiffs too much benefit of the doubt. This ruling provides some evidence that the (cited) Supreme Court’s Kirtsaeng ruling on copyright fee shifts may be incrementally helping more defendants get fee shifts.

Personal note #1: It breaks my heart to see members of the vegetarian community square off in court. Can’t we all get along? We should be fighting the meat-eaters, not each other!

Personal note #2: This was a difficult case to blog because I got hungry constantly thinking about vegetarian Ethiopian food. Yum! Our local favorite Ethiopian restaurant is Zeni’s in San Jose, just a couple miles from campus. Little known fact: my wife and I went to an Ethiopian restaurant on our second date (the now-closed Blue Nile in Berkeley). Delicious vegetarian Ethiopian food is a way to my heart!

Case citation: Schleifer v. Berns, No. 1:17-cv-01649-BMC (E.D.N.Y. July 19, 2017). The amended complaint. The plaintiff’s opposition to the motion to dismiss.

Source: Eric Goldman Legal

Appropriation Artist Can’t Win Fair Use Defense on Motion to Dismiss–Graham v. Prince 0

This is a lawsuit by plaintiff Donald Graham against well-known “appropriation artist” Richard Prince and his gallery for copyright infringement. As described by the court:

Prince’s [work] is [an . . . ] inkjet print of a screenshot taken by Prince that captures a ‘post’ made by a user named ‘rastajay92’ on . . . Instagram. . . Rastajay92’s post consists of a slightly cropped copy of [Graham’s photo] which he reproduced without Graham’s permission. In fact, rastajay92 had ‘reposted’ a copy of the photograph that had previously been posted by yet another Instagram user, ‘indigoochild.’ When rastajay92 reposted the image, he also commented: ‘Real Bongo Nyah man a real Congo Nyah [emoji of a raised fist].’ . . . Rastajay92’s comment also attributed his post to indigogoochild by stating: ‘repost @indigoochild’.

Prince added an Instagram comment of his own: ‘Canal Zinian da lam jam [emoji of a raised fist].’ He then screenshotted the post with his own comment, and printed the screenshot on canvas.

A comparison between Graham’s photo and Prince’s work is below:

prince comparison

Prince filed a motion to dismiss on fair use grounds. The court denies his request. The court says fair use cases are rarely adjudicated on the pleadings because fair use is a fact-intensive inquiry and requires development of the record. The court repeatedly (unfavorably) compares this case to a previous fair use case involving Prince (Cariou v. Prince), which he won largely on appeal in the Second Circuit.

The purpose and character of the use and whether it’s transformative: The court says this is the key factor. Applying an objective test, the court says the works in question are not so aesthetically different from the original that they would pass the “reasonable viewer” test as a matter of law. Prince tried to come up with a variety of messages sought to be conveyed by the work, including:

A commentary on the power of social media to broadly disseminate others’ work, an endorsement of social media’s ability to generate discussion of art, or a condemnation of the vanity of social media.

The court says the side-by-side comparison shows that the underlying work is not materially altered. There is some de minimis cropping, in the frame of an Instagram post, along with a cryptic comment . . . but otherwise, it’s . . . a screenshot.

Because the work is not very transformative, the commercial sub-factor is less significant.

Nature of the work: The second factor favored plaintiff because the works were published and creative. [Eric’s note: normally the work being published supports the fair use defense, but the court managed to turn that around.]

Amount and substantiality: The third factor focused on the extent of the work used. Given that Prince reproduced Graham’s photo in its entirety, the court says this factor can’t weigh in favor of Prince. Prince argued that he needed to copy the entire photo to effectively comment on it, but the court is not persuaded.

Effect on the market: The court says it does not have sufficient information at the pleadings stage to find that Prince’s use usurped the market for plaintiff’s work. Several of plaintiff’s allegations point to an overlap that the markets targeted by the two parties were the same and Prince’s work may serve as a substitute for Graham’s. Drawing the inferences in Graham’s favor, the court says this factor favors plaintiff.

The court declines to rule in favor of Prince. Graham also alleged a few other infringements, including reproduction of Prince’s work on a billboard and on Twitter (in a compilation format). The court says whether these uses are fair use present even tougher factual questions. The court also declines to convert the motion into one for summary judgment.


As the court notes, cases finding fair use at the motion to dismiss stage are rare. It would have been surprising for the court to conclude that Prince’s key contribution—adding a comment on a social media platform—would be sufficiently transformative to carry the day on fair use. Indeed, it would upend the copyright rules as they apply on social media platforms.

I’m intrigued by the decision by Prince’s lawyers to file a motion to dismiss. That seemed like a long shot here, but perhaps they were hoping the court would take the opportunity to convert the motion into one for summary judgment. (Eric offers additional comments on this issue.)

We haven’t seen a ton of cases raising infringement issues relating to users’ sharing of social media content. AFP v. Morel raised this issue slightly, and there the media defendants tried to rely on the argument that the Twitter terms of service allowed them to further distribute the content and exploit it but the court shut down that argument. Prince makes no such argument here. Eric raises a good point below about whether the result would be different if Graham had posted the photo to Instagram. I tend to think not, given that instagram’s terms of service, like twitter’s likely authorize reproduction “within the ecosystem,” but it’s an interesting question to consider.


Eric’s Comments

* Fair use on motions to dismiss. We’ve blogged other cases where courts did grant fair use defenses on motions to dismiss. See, e.g., Righthaven v. Realty One; Denison v. Larkin. However, the court is correct that such defense wins are rare. See, e.g., Katz v. Chevaldina, where the blogger won the fair use defense with a fee shift, but only after the motion to dismiss was denied. Therefore, Prince’s failure to win the fair use defense here isn’t very surprising. His fair use defense will get more traction on the summary judgment motion (though there are no guarantees of victory). However, to me, the adjudicatory costs of a fair use defense are one of its weaknesses. Prince may be able to afford the litigation costs, but many mom-and-pop content producers will fold long before the case can get to summary judgment or trial.

* The role of Instagram’s terms of service. As Venkat notes, the terms of service for social media services may contain broadly worded licenses that would protect the republication of screenshots. Here, the plaintiff didn’t consent to Instagram’s terms of service because a third party made the Instagram post without the photographer’s permission.

* Depicting screenshots of social media services. Prince created this legal tangle in part by adding his own nonsense comment to the Instagram post. Let’s assume he wasn’t doing this as an artistic statement but rather as an actual substantive comment to the post. Shouldn’t Prince have the legal right to share his comment in context? His comment doesn’t make sense even in context, but it would make even less sense out of the context of the other comment and the original photo. Our legal doctrines will need to accept the republication of user comments that include the surrounding comments and original source material.

* What is Appropriation Art? I must confess that I don’t “get” Richard Prince’s art. What makes it “art”? The fact that he declared it art and styles himself as an artist? I’m reminded of the examples where teenagers left eyeglasses on an art museum floor and visitors interpreted it as art; or vice versa.

* Emoji usage. I’ve added this opinion to my Emojis and the Law worksheet. As with the vast majority of cases, the court opinion doesn’t depict the emoji but instead textually characterizes it as the “raised fist.” The omission of the emoji image isn’t consequential to this case, but the court also could have easily included it in the opinion–which would have been a better practice because the emoji is part of the artwork (you can see it in the photo above).

Case citation: Graham v. Prince, 2017 U.S. Dist. LEXIS 111521 (SDNY July 18, 2017)

Related posts:

Blogger Can’t Defeat Copyright Infringement Claim on Motion to Dismiss–Katz v. Chevaldina

Copying Blogger’s Posts In Disciplinary Proceeding Is Fair Use–Denison v. Larkin

Blogger Wins Fair Use Defense…On a Motion to Dismiss!–Righthaven v. Realty One

Court Definitively Rejects AFP’s Argument That Posting a Photo to Twitter Grants AFP a License to Freely Use It — AFP v. Morel

Source: Eric Goldman Legal

Announcing the 2017 Edition of ‘Internet Law: Cases & Materials’ 0

internet law reader cover 2017I’m pleased to announce this year’s edition of my Internet Law casebook, Internet Law: Cases & Materials. It’s available for sale as a PDF at Gumroad for $8, as a Kindle book for $9.99, and in hard copy at CreateSpace for $20 + shipping–once again, same price as last year. For my thoughts about self-publishing an ebook casebook, see this article.

If you’re an academic and would like a free evaluation copy, please email me. I can also send you my presentation slides and lecture notes. You might also check out my Internet Law course page, which includes 20 years of syllabi and old exams with sample answers, and my old article “Teaching Cyberlaw.”

This year, I did not add or delete any principal cases. I did delete some items, including a few of the older Forbes Tertium Quid articles that I summarized or integrated into the material other ways. Even so, the book grew about 2% because I added a lot of new notes and explanatory material, including:

* I streamlined some of the discussion about online contracts and added some new problems.

* I added notes about US v. Nosal and Facebook v. Power Ventures, but the CFAA/trespass to chattels area remains a disaster. As I’ve indicated before, we really ought to start from scratch with the CFAA and state law analogs.

* I updated the DMCA online safe harbor material (including the stupid new Copyright Office agent re-designation rule), but oh man, what a mess! I haven’t blogged several of the major rulings in the past year because they take forever to blog and the cases are a mess. (I have a festering roundup blog post in draft mode that over a half-dozen DMCA safe harbor cases). In particular, I deliberately excluded the Mavrix v. LiveJournal case from the book because I think the 9th Circuit probably will modify the ruling or take the case en banc.

* I added notes about the German Network Enforcement (a/k/a social media censorship) law and the Canadian Supreme Court Equustek ruling.

* I added several references to the Packingham Supreme Court decision.

I’ve been on partial leave from the law school for the past two academic years, which means I haven’t taught the course since Fall 2014. I’m again on partial leave in 2017-18, but I’ll be teaching the course in Fall–and I’m very excited about that!

As always, I invite your comments and questions.

The complete table of contents:

I. What is the Internet? Who Regulates It?

ACLU v. Reno (CDA I District Ct. Facts Only) Page 1
Noah v. AOL (E.D. Va.) 21
Determining the Geography of Internet-Connected Devices 30

II. Jurisdiction

Protocol for Evaluating Personal Jurisdiction 37
Toys ‘R’ Us v. Step Two (3d Cir.) 38
Illinois v. Hemi Group (7th Cir.) 49

III. Contracts

Specht v. Netscape Communications (2d Cir.) 54 v. Verio (2d Cir.) 73
Harris v. Blockbuster 86

IV. Trespass/Computer Fraud & Abuse Act

Review: the Computer Fraud & Abuse Act, 18 U.S.C. §1030 [], and California Penal Code §502 []

Comparison of Trespass to Chattels Doctrines 97
Intel v. Hamidi (Cal. Sup. Ct.) 98 v. Verio (Trespass to Chattels section) 119
Online Trespass to Chattels: a Failed Experiment 123

V. Copyright

Copyright Office Circular 1 127
Note About Fair Use 133
Cartoon Network v. CSC (2d Cir.) 137
MGM Studios v. Grokster (Sup. Ct.) 149

Secondary Liability
Review: 17 U.S.C. §512 []
Goldman’s 512(c) Cheat Sheet 162
UMG v. Shelter Capital (9th Cir. revised opinion) 163
How the DMCA’s Online Copyright Safe Harbor Failed 183

Ticketmaster v. RMG 186

VI. Trademarks and Domain Names

Review: 15 U.S.C. §1114 [], 15 U.S.C. §1125 [], and 15 U.S.C. §8131 []

Trademark FAQs 198
Trademark Glossary 200

A. Domain Names and Metatags
Review: ICANN Uniform Domain Name Dispute Resolution Policy [] and Rules for Uniform Domain Name Dispute Resolution Policy []

Lamparello v. Falwell (4th Cir.) 203
Promatek v. Equitrac (7th Cir.) Original Order and Revision 217

B. Search Engines
Review: Google’s Trademark Policy []

Network Automation v. Advanced Systems Concepts (9th Cir.) 224
With Its Australian Court Victory, Google Moves Closer to Legitimizing Keyword
Advertising Globally 241
Tiffany v. eBay (2d Cir.) 243

VII. Pornography

Pornography Glossary 258
Reno v. ACLU (Sup. Ct. 1997) 259
Ashcroft v. ACLU (Sup. Ct. 2004) 275

VIII. Defamation and Information Torts

47 U.S.C. §230 289
Zeran v. America Online (4th Cir.) 292
Fair Housing Council v. (9th Cir. en banc) 301
The Value of Consumer Review Websites and 47 U.S.C. § 230 328
International Approaches to Liability for Information Torts 330

IX. Privacy

Review: 16 C.F.R. Part 312 [ (starting at page 38)]

Excerpts from 16 C.F.R. Part 312, the Children’s Online Privacy Protection Act’s Regulations 342
In re. Pharmatrak (1st Cir.) 344

X. Spam

Review: CAN-SPAM Act of 2003 [] and 16 C.F.R. Part 316 []

Where’s the Beef? Dissecting Spam’s Purported Harms 358

XI. Blogs and Social Networking Sites

The Third Wave of Internet Exceptionalism 365
People v. Lopez (Cal. App. Ct.) 367
Doe v. MySpace (5th Cir.) 371
Zimmerman v. Weis Markets 379
Farley v. Callais & Sons 382
In re Rolando S. (Cal. App. Ct.) 388
Moreno v. Hanford Sentinel (Cal. App. Ct.) 393


Source: Eric Goldman Legal

Court Can’t Ban Resident From Discussing HOA Online–Fox v. Hamptons at MetroWest Condos 0

This is the third time this year I’m blogging about homeowners’ associations suppressing online speech (see my posts on the Revock and Milazzo cases). I’m pretty sure HOA online censorship is a growth industry (indeed, my CRFA primer calls out the housing/lodging industry as one of the places where anti-review clauses were deployed). If you’re looking for paper topics, this may be worth exploring.

This lawsuit involves the Hamptons at MetroWest condo complex in Orlando. Apparently they have some major issues with construction defects or maintenance. Fox resides in the condo community. The HOA sued him for “a continuous course of conduct designed and carried out for the purpose of harassing, intimidating, and threatening other residents, the Association, and its representatives” (unfortunately, the opinion wasn’t more specific about Fox’s prior activities). The parties settled that lawsuit. Shortly thereafter, the HOA sought a contempt order (apparently because “Fox utilized the internet to voice his displeasure over the quality of life at the Hamptons”), and the court:

ordered Fox to stop posting, circulating, and publishing any pictures or personal information about current or future residents, board members, management, employees or personnel of the management company, vendors of the Hamptons, or any other management company of the Hamptons on any website, blog, or social media. He was further ordered to take down all such information currently on any of his websites or blogs. The trial court also prohibited Fox from starting any new blogs, websites or social media websites related to the Hamptons or the Association. It informed Fox that, as his punishment, if someone asked him on his social media page if he enjoyed living at the Hamptons, he could not post a response online. Instead, he would have to call the person to express his concerns.

Oh, Florida….

Fortunately, this doesn’t fly with the appeals court. Unlike the Revock case, this court actually sees the First Amendment implications here. After waxing philosophic about the impermissibility of prior restraints, the court concludes:

In this case, the trial court erred when it prohibited Fox from making any statements whatsoever pertaining to the Hamptons or to the Association on his websites, blogs, and social media websites without conducting a proper constitutional inquiry [which, in a footnote, the court says should balance concerns about emotional distress with the ease that readers can avoid social media]. Accordingly, we reverse the portions of the contempt order prohibiting Fox from posting on any website, blog, or social media, and remand for further proceedings. However, we conclude that the trial court did not err when it enforced the agreed upon terms of the settlement agreement and affirm the contempt order in that respect.

However, without knowing the settlement agreement’s terms, it’s hard to know if Fox really won this ruling. For example, if the settlement agreement contained a non-disparagement clause–and settlement agreements often do–Fox still may not be able to speak the truth and instead may have to adhere to a cartoonish “Everything is Awesome!” public persona.

To me, this highlights the perniciousness of non-disparagement clauses. Like bans on consumer reviews, non-disparagement clauses contractually impose censorship that would be otherwise unconstitutional–and thereby strip away valuable negative truthful information from the marketplace of ideas. Contrast a non-disparagement clause with a “don’t defame me” clause, which is still problematic (as I discuss here) but at least bans actually illegal behavior. If non-disparagement clauses continue to expand, especially to contracts other than settlement agreements, I think we’ll need to statutorily circumscribe or ban non-disparagement clauses. Sounds like another good paper topic. In the interim, if you draft contracts to include non-disparagement clauses, you’ve been warned.

(Note on the Consumer Review Fairness Act: it wouldn’t apply to the HOA/Fox settlement agreement because, among other things, the settlement agreement almost certainly isn’t a “form” contract as defined by the statute).

Without seeing the underlying initial lawsuit, it’s also hard to know if a robust anti-SLAPP law might have helped. Florida expanded its narrow anti-SLAPP law in 2015, but I don’t know if that expanded law was in place when the initial lawsuit was filed (nor is it clear how the expanded law applies to online content). Florida also has a specific anti-SLAPP law against HOAs trying to stop homeowners from seeking government redress, but that HOA-specific anti-SLAPP law still may have been too narrow to cover Fox’s activities. Given the overall tenor of this litigation, it seems like a robust anti-SLAPP law might have helped guide the lower courts recognize the important speech issue at play.

Case citation: Fox v. Hamptons at MetroWest Condominium Association, 2017 WL 3091217 (Fla. Dist. Ct. App. July 21, 2017)

Source: Eric Goldman Legal