As first reported by MediaPost's Online Media Daily, a judge in Manhattan has ordered Google (which hosted the blog through its Blogger service) to reveal the identity of the person or persons behind the now-defunct blog, whom model Liskula Cohen has accused of defaming her by calling her a "skank," "ho," "Skankiest in NYC," a "psychotic, lying, whoring ... skank," and posting sexually provocative pictures of her (or someone else, whom the blog claimed to be Cohen).
Liskula Cohen Opinion
The "Skanks in NYC" bloggers fought hard to remain anonymous, hiring a lawyer to oppose Cohen's motion for an "order for pre-action disclosure" under CPLR § 3102(c). (Google did not oppose the motion.) The bloggers argued that the comments about Cohen were "non-actionable opinion and/or hyperbole" and "have become a popular form of 'trash talk' ubiquitous across the Internet and network television and should be treated no differently than 'jerk' or any other form of loose and vague insults that the Constitution protects." And they asserted that the forum of a blog "negates any impression that a verifiable factual assertion was intended" since "blogs have evolved as a modern-day soapbox for one's personal opinions" by "providing an excessively popular medium not only for conveying ideas, but also for mere venting purposes, affording the less outspoken, a protected forum for venting gripes, leveling invective, and ranting about anything at all."
But Supreme Court Judge Joan Madden didn't buy it, ruling that blogs are not a free-fire zone for defamatory speech:
The court also rejects the Anonymous Bloggers's argument that this court should find as a matter of law that Internet blogs serve as a modern day forum for conveying personal opinions, including invective and ranting, and that the statements in this action when considered in that context, cannot be reasonably understood as factual assertions. To the contrary, as one court in Virginia has articulated: "In that the Internet provides a virtually unlimited, inexpensive, and almost immediate means of communication with tens, of not hundreds of millions of people, the dangers of its misuse cannot be ignored.... Those who suffer damages as a result of tortious or other actionable communications on the Internet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights. In re Subpoena Duces Tecum to America Online, Inc., 2000 WL 1210372 (Va. Cir. Ct.), rev'd on other grounds, 261 Va. 350 (Va. Sup. Ct. 2001).Breaking with the California Court of Appeal, which infamously held that "skank" was not capable of defamatory meaning, Judge Madden wrote, "the explicit use of the words 'skank,' 'skanky,' 'ho,' and 'whoring' are reasonably susceptible to a defamatory connotation, since 'a communication that states or implies that a person is promiscuous is defamatory.... Reading those alleged defamatory words against the background of their issuance, the thrust of the Blog is that petitioner is a sexually promiscuous woman." (For further background on New York's law of skank, read Sam Bayard's seminal post.) Given this sharp divergence between the New York and California courts, the U.S. Supreme Court may well have to step in to resolve this stark split over skank.
And here, because this really can't be watched too many times, is The Onion's report examining the pressing question: "Are reality shows setting unrealistic expectations for skanks?"
Posts
I am not so sure there is a sharp divergence between the New York and the California Courts over whether "skank" is a defamatory statement of fact. The two rulings were comparing apples and oranges, and they seem to have come up with different equations.
ReplyDeleteCalifornia Court:
"Skank" Does NOT = Cause of Action for Defamation
New York Court:
"Skank" + Plaintiff in suggestive pictures with specific men = Cause of Action for Defamation.
The pictures of the Plaintiff seem to be what distinguishes the two cases. Without the pictures, the term "skank" is a nebulous one, often used in common street trash talk. There is no hint that the person being talked about is having an affair with specific people.
Adding the pictures changes the equation by implying specific facts. Apparently, the New York Court believed that the pictures, in conjunction with the word "skank", implied a factual statement that Cohen was having sex with the people in the pictures.
While I personally think the Court made the wrong decision, it was a pretty close call. The Court's order was not unreasonable, but it does set a worrying precedent. For example, many penny stocks are run by corrupt CEOs and some of those CEOs have mafia connections. This type of decision may chill speech by those who would otherwise anonymously call out these CEOs for fraud on the internet. If the anonymous poster is right--if the CEO does have mafia connections--then who is going to want to call him out knowing that their anonymity might be stripped by a Court making a bone-headed decision?