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I've Been Suckered!

Orin is right, as is commenter Huh?, and I'm wrong. I let myself get suckered by the plaintiff's complaint in DiMemo v. Max, which asserts that the anonymous annoying speech ban is enforceable in civil lawsuits by private parties.

In fact, as Orin points out, the ban is an amendment to a criminal statute (47 U.S.C. § 223), and can only be enforced by the government. D'oh! I just glossed over this issue, because some other recent telecommunications legislation (e.g., the junk fax statute, 47 U.S.C. § 227) provides a private right of action, and I assumed that plaintiff's lawyer wouldn't just make up a civil claim where none exists. Silly me, and damn you, Matthew B. Weisberg, Esq., Attorney for Plaintiff.

In any case, thanks to Orin and Huh? for the corrections; my concern about the criminal statute stands, but this of course makes this incident a much less direct example of the statute's mischief.

Kovarsky (mail):
EV

I think there's a counterveiling effect to toggling over to a criminal statute: Section 230, the safe harbor provision, doesn't apply. Is there some sort of organic criminal safe harbor provision that would otherwise apply?

Lee
3.20.2006 11:18pm
Huh:
I know I don't comment very much, as I prefer lurking to trolling. But I've consistently if rarely posted under the name Huh. But, I'd like to make clear for future reference that I'm not the person who diligently and politely corrected professor Volokh.

I feel it is especially important to clear this up lest Huh? ever prove himself/herself to be a particularly annoying and anonymous user.

:)
3.20.2006 11:35pm
Huh?:
Sorry about that, Huh.

I'll leave it to others to decide whether I am annoying, but I suppose it's a given that I'm anonymous. Luckily, any annoyance I cause isn't intentional, so I fall outside even the literal purview of 47 USC 223(a)(1)(C).

Very truly yours,
Huh?
3.21.2006 1:28am
Wintermute (www):
Not so fast, daddio. I haven't shepardized Cort v. Ash, 422 U.S. 66 (1975), and no private right of action was upheld in this stockholder's derivative suit under 18 U.S.C. 610 (illegal corporate campaign contributions), but the law had changed since the offense to provide a government-instituted suit for relief, so the Court said private relief could only be had under state law but (and you may call this dictum, but from a unanimous Court) stated the law as follows ('scuse the long quotation):

"In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff "one of the class for whose especial benefit the statute was enacted" - that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?" (citations omitted)

Offered in the service of continuing legal education....
3.21.2006 1:46am
Charles Chapman (mail) (www):
Could Matthew B. Weisberg, Esq., Attorney for Plaintiff, possibly be arguing for a good faith and reasonable(?) extension of existing law? Perhaps an implied private right of action? See

Courts Lecture Outline - Spring 2006
http://tinyurl.com/ougjb
[Using TinyURL.com because I can't get the link function to work, and comment will not accept url > 60 characters long.]

KARAHALIOS v. FEDERAL EMPLOYEES, 489 U.S. 527 (1989)
http://tinyurl.com/qxw64
[same]

Might there be something in the legislative history that would support a privatate right of action? See Karahalios, 489 U.S. at 536.

In addition, is plaintiff's counsel is using the criminal statute to support a prima facie tort under state law? See Restatement (Second) of Torts, sec. 870.

Is plaintiff's counsel using violation of the criminal statute as the basis of a claim for negligence per se under state law?

Yes, I know these arguments are a stretch, to say the least. I also know that the last two arguments would not confer federal question jurisdiction.

However, might it be the case that the complaint is not entirely without legal foundation? Perhaps even good enough to avoid Rule 11 sanctions?

It would be interesting to see if the complaint makes an implied cause of action argument.
3.21.2006 2:15am
Charles Chapman (mail) (www):
Wintermute,

According to this outline:

Courts Lecture Outline - Spring 2006
http://tinyurl.com/ougjb

(a) the law is in flux; but (b) it appears Cort is no longer being followed. Then again, like you, I haven't had a chance to shepardize Cort. Heck, I don't even know what Circuit we are talking about. :)
3.21.2006 2:17am
morningcoffee (mail):
Prof. Volokh-

As a district court clerk, I can tell you that I've seen many plaintiff's attorneys make up civil claims that don't exist. Way too many.
3.21.2006 8:59am
J..:
Federal courts now cite to Alexander v. Sandoval to discuss implied private rights of action under federal statutes. This is a big deal in a number of federal class actions, and especially recent securities class actions. There are some interesting 2d Circuit cases, SDNY opinions, and (a few months old) D.MD (Motz) opinion that set up the framework.
3.21.2006 11:31am
J..:
With due respect to Orin, having just read JENSEN v. SHRIVELY on Loislaw, I would recommend not giving it much weight :-D

As any former trial court clerk out there has experienced, there are some cases that must be dismissed simply b/c the litigant is nutty. A sua sponte order to show cause why a case should not be dismissed is usually a good indication that the litigants really shouldn't be in court.

We used to have cases where plaintiffs would sue Jesus for all sorts of violations. Now, there are a number of good ways to dismiss such cases -- personal jurisdiction being a pretty good one. Sometimes, though, you slip up and write something a little too broad. I think this is such an opinion.

The judge in Jensen writes that "Similarly, they cannot be liable to plaintiff under a statute which provides for criminal penalties but does not provide a private right of action." This wrong to the extent it implies that no criminal statutes can imply private causes of action. Afterall, even in Cort v. Ash the Court wrote that "Clearly, provision of a criminal penalty does not necessarily preclude implication of a private cause of action for damages."
3.21.2006 11:47am
B. B.:
Tucker Max himself is a law school grad (Duke), and while he isn't a lawyer (he claims he hated what he was doing during his summer at a law firm and decided he'd find something else to do), he's been sued before and won (the "Miss Vermont" saga). I hope DiMeo wanted a fight, because it's likely he'll get one. If anything, the guy in this suit is being set up for even more ridicule on the message boards there.

If people are allowed to sue the operator of an internet site for its anonymous users making fun of them (the mean spirit in the comments is pretty normal for that board if you read through it at all), there's going to be a whole lot of lawsuits flying around, as ripping people and trolling is pretty common. Is there any precedent at all for holding someone liable for libel or defamation under those circumstances? That's a honest question, I'm an IP guy so I know very little of the law in this area.
3.21.2006 3:15pm
Mary Katherine Day-Petrano (mail):
"As any former trial court clerk out there has experienced, there are some cases that must be dismissed simply b/c the litigant is nutty."

Among the mentally disabled and autistic savant law students/bar applicants/lawyers association, the above-comment just expresses the discrimination we all know goes on within the non-disabled Federal judiciary and clerkship. At least, unlike, so many, you are not afraid to say 'no mentally disabled people need sue here, as there is a blanket bar on merit.'

*Sigh* Another frontier to conquer with affirmative action, and preferential set asides, until there is a critical mass. The interesting little case of Jones v. Ault shows that reasonably accommdoating the disabled to enable them to try to state the merit of their claims, rather than simply dismissing them outright by reason of "nuttiness," even in a pre-Americans With Disabilities Act era, is not way far off the mark.

Whether or not the private right of action theories can prevail, EV, though some of us argue with you, dispute your viewpoint, and those of other commenters, your thread demonstrates that you are a class act.
3.21.2006 4:12pm
Mary Katherine Day-Petrano (mail):
"As any former trial court clerk out there has experienced, there are some cases that must be dismissed simply b/c the litigant is nutty."

Among the mentally disabled and autistic savant law students/bar applicants/lawyers association, the above-comment just expresses the discrimination we all know goes on within the non-disabled Federal judiciary and clerkship. At least, unlike, so many, you are not afraid to say 'no mentally disabled people need sue here, as there is a blanket bar on merit.'

*Sigh* Another frontier to conquer with affirmative action, and preferential set asides, until there is a critical mass. The interesting little case of Jones v. Ault shows that reasonably accommdoating the disabled to enable them to try to state the merit of their claims, rather than simply dismissing them outright by reason of "nuttiness," even in a pre-Americans With Disabilities Act era, is not way far off the mark.

Whether or not the private right of action theories can prevail, EV, though some of us argue with you, dispute your viewpoint, and those of other commenters, your thread demonstrates that you are a class act.
3.21.2006 4:12pm
Mary Katherine Day-Petrano (mail):
I apologize for the double post -- got caught in a moment in the blogosphere.
3.21.2006 4:13pm
BA:
*Sigh* Another frontier to conquer with affirmative action, and preferential set asides, until there is a critical mass.

You may find this hard to believe, but not every post or comment on the internet relates to disability rights.
3.21.2006 4:26pm