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Autoadmit Lawsuit:

The two women law students who were generally badmouthed and insulted by pseudonymous commenters on the AutoAdmit Web site have sued. They've sued Anthony Ciolli, who helped found and manage AutoAdmit, and they've sued the pseudonymous commenters. The claims are copyright infringement (based on someone's apparent copying of some photographs of Doe I to which the copyright was owned by Doe I), appropriation of name and likeness, disclosure of private facts, false light invasion of privacy, and intentional and negligent infliction of emotional distress. The suit seeks compensatory and punitive damages, "permanent removal of the message threads from the AutoAdmit Site," "authorization to Google permanently to remove the cached message threads," and costs.

A few thoughts:

1. Ciolli's liability: If Ciolli is being sued solely because of his operation of the AutoAdmit thread — as opposed to any posts he himself might have made — then he should be immune under 47 U.S.C. § 230, which generally immunizes people from liability for online speech by other people (such as the pseudonymous commenters here). Section 230 doesn't apply to copyright liability, but even if there was a copyright-infringing photograph posted to AutoAdmit, I quite doubt that there'd be material damages. Only actual damages, an injunction, and court costs are available unless the photograph was registered within three months of its original posting, which I expect it wasn't. (AutoAdmit might also have some 17 U.S.C. § 512 protections, but only if satisfied section 512's agent identity notification requirements, which I doubt.)

2. Permanent removal of message threads: Many (but not all) jurisdictions allow injunctions in libel cases, after a finding on the merits that the speech is libelous. The same might be true of injunctions against speech that is found to fit within another First Amendment exception (such as a threats exception, or an intentional infliction of emotional distress exception, if there is one). But nearly all courts that have considered the issue have held that 47 U.S.C. § 230 preempts injunctions against online speakers based on speech of other parties, as well as damages. So I see no basis here for an injunction against Ciolli as AutoAdmit's operator, except perhaps as to removal of the infringing photograph, if it is indeed on AutoAdmit's site. (Of course, it's possible that Ciolli will give in on this score because of public pressure, because of fear of liability, or because of worry about the expense and burden of litigation; on the other hand, his § 230 defense is strong enough, and the case interesting enough, that I imagine he would be able to prevail either by himself or with some pro bono help.)

UPDATE: I had assumed that Ciolli still had some legal power over what comments stay on the AutoAdmit site, since otherwise this demand would have been pointless. If, as some correspondents have suggested, Ciolli no longer has this power, then the demand to permanently remove the message threads is especially out of place -- it can't work (even setting aside the 47 U.S.C. § 230 problem) unless the complaint is amended to join AutoAdmit or its operators as parties.

3. Authorization to Google permanently to remove the cached message threads: This is just odd; Google needs no such authorization — it can remove whatever it pleases from its cache. Perhaps there's some Google policy under which Google removes material only following a finding that the material is libelous, or perhaps plaintiffs think such a finding would in any event persuade Google to remove the material. But they can't seek such "authorization" as a remedy; there is no legal doctrine under which the court can grant such authorization, and there is no legal need for such authorization.

4. Liability of the pseudonymous posters — libel / false light: Some of the statements mentioned in the complaint may well be libelous, for instance the ones that accuse plaintiff of having herpes, and of being sexually promiscuous (assuming the statements are false, which I expect they are), or at least false plus highly offensive (which in these circumstances would suffice for a false light claim). They are on matters of private concern and about a private figure, so the defendants would be liable for actual, presumed, and punitive damages.

Defendants' only defense would be that in context a reasonable reader wouldn't understand the statement as a factual claim, but just a loose insult that lacks factual content (much as "motherfucker" may be insulting because of the connection to its literal factual meaning, but is almost always used as a pure insult and not a factual claim). That's a not implausible defense, but far from a sure winner.

5. Liability of the pseudonymous posters — other causes of action: Some of the statements mentioned in the complaint may also be actionable as intentional infliction of emotional distress, because they do seem pretty outrageous when made in a publicly accessible medium. (I doubt the other causes of action are particularly strong, but the distress one might be.) Does the First Amendment preempt such claims?

Some of the statements may be interpreted as threats of rape and the like; if they are interpreted this way, again as opposed to loose hyperbole (see Watts v. U.S. for the leading hyperbole case, though one that arose in a political context), they may be constitutionally unprotected, and there would be no bar to tort liability for them. Most of the statements, though, are just general nastiness; and it's not clear whether crude, personally insulting speech on matters of private concern about a private figure is constitutionally protected against intentional infliction of emotional distress liability.

I think it should be protected, because the emotional distress tort is in my view unconstitutionally vague as applied to otherwise protected speech (even nasty speech on matters of private concern), and because I'm generally skeptical about the courts' ability to reliably draw the public/private concern line (see PDF pages 46-52 of my Freedom of Speech and Intellectual Property). But a few courts have allowed liability without finding First Amendment problems, as in the radio station "Ugliest Bride" contest case, Esposito-Hilder v. SFX Broadcasting Inc., 665 N.Y.S.2d 697 (App.Div.1997). And of course this is the sort of case where liability seems especially apt, and especially harmless when one just looks at the particular speech involved here. The case for First Amendment protection would have to be made based on the concerns about the long-term consequences of a new "private-concern speech inflicting emotional distress" exception to First Amendment protection.

6. Disclosure of the pseudonymous posters' identities: But I think the real punitive remedy that plaintiffs may get is disclosure of at least some of the pseudonymous posters' identities, given that plaintiffs have at least plausible tort claims that should suffice to justify discovery of defendants' identities. I'm not sure whether this is primarily what plaintiffs want — but it will be much cheaper to get, since it could be gotten just using some subpoenas plus amendment of the complaint to reveal the true defendants, with no need for a trial or for anything else. (Of course, if the identities can't technically be gotten, because the site's logs are incomplete, because the posters adequately cloaked their identities, or for some other technical reason, then no remedy, social or legal, would be available.)

The posters' actions are pretty disgusting and unprofessional; they violate codes of basic decency endorsed by most of society, left, center, and right. If their identities are disclosed, they are likely to lose their jobs (or job offers), lose friends, and be set back for many years and by many hundreds of thousands of dollars in their careers.

Ciolli himself apparently lost a job over all this, even though his asserted sin was simply providing a largely unrestricted forum. We can debate the ethics of providing such forums, and declining to delete trash posts like these ones. But even if what he did reflects some lack of professional or other ethics, what the posters did reflects a far worse ethical standard. If Ciolli got some professional flak, the posters would likely get far more.

In any case, that's my main thinking. I'll also post a little shortly about a possible risk to one of the plaintiffs should the case go to trial (which is unlikely) — a risk that illustrates one of the many difficulties that libel plaintiffs face.

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