Sunday, December 7, 2008

Judges Coming Down Harder on Online Speech

Prior Restraint of Bloggers

The Citizen’s Media Law Project brings us this story about a judge who issued a restraining order preventing a plaintiff in a lawsuit from using the name of the defendant in any blog postings. The underlying lawsuit is a malpractice case where the plaintiff is suing his former attorney. The plaintiff had blogged about the case obviously providing negative comments about the lawyer.

The attorney presented the order to the Blogger so it could take down a blog called “Jeffrey Denner’s ineffective assistance of counsel” (Now we know the attorney who is the subject of the complaints and where to learn more about him). The only problem is that the creator of the site claims he is not the plaintiff and therefore the order does not apply to him. The blog is therefore back up. To learn more about the current accepted ethics of law firm blogs visit our website for a paper on the subject by two ethics attorneys click here.

Take that YouTube Video of the Deposition Down

Much closer to home, Harris County (Houston, Texas) Court at Law No. 4 Judge Roberta Lloyd ordered a plaintiff’s attorney to take down a clip of a video deposition from a case between a consumer and a local car dealership. The defendants sought a protective order claiming the clip was edited, is misleading when taken out of context and meant only to harass the defendant. The judge agreed. There’s more about the story in this week’s Texas Lawyer

Make online comments on Craigslist and go to jail

Finally, in a bitter divorce case, the ex-husband made comments in Craigslist’s “Rants and Raves” section about his ex-wife. Assuming the comments are untrue, he crossed the line into defamation per se when he accused his wife of being a “whore” and committing child abuse and welfare abuse. Colorado is apparently one of 17 states according to this story from the Los Angeles Times that still has libel as a criminal statute. The Wall Street Journal Law Blog discusses the story here.

What does it mean?

All in all, hopefully not much. The good news is that these stories are newsworthy because they are still rare. We should be concerned if this type of online speech regulation becomes more commonplace. As pointed out in the Citizen’s Media Law Project any prior restraint of speech should only only be allowed in certain circumstances. In other words, we generally believe we should let people talk and then let them face the consequences of what was said. That is the rule as applies to newspapers and national security concerns and other matters more important than a husband/wife dispute or a attorney malpractice claim.

Had the plaintiff in the Texas case provided the deposition video to one of the local TV stations and they edited portions of it to fit the story, would there have been a protective order? What would the TV investigative journalists do if they couldn’t take snippets of video depositions to fit their story? Perhaps the advertising aspect of the video could result in some regulation, but as it relates to the party, why can’t she take the video and put whatever edited portions online? Despite whether it is a public record, it is a matter of public concern whether a car dealership is cheating customers and the plaintiff should be entitled to the same protections as the investigate journalist.

I hate to defend ex-husband in the last case. Fortunately, I only have to defend the suggestion that such action is criminal and attack the statute rather than defend the man. Being an idiot usually does not make you criminal. It could make you subject to civil damages, but saying bad things about your ex-spouse should not land you in jail. Otherwise, Looper Reed’s family law section needs to add a criminal defense lawyer. Hopefully, all states will get rid of criminal libel statutes.

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