Law Professor sues 'Above the Law' blog; time to go back to complaint-drafting school

Above the Law is one of the nation's foremost chroniclers of the wackiness of the American legal system. And now Above the Law is an involuntary participant in a lawsuit that demonstrates the wackiness of the American legal system -- and the American legal academy.

Here's the story: D. Marvin Jones is a professor at the University of Miami Law School, where he teaches constitutional law, criminal procedure, and employment discrimination. In September 2007, Prof. Jones was arrested and charged with solicitation of prostitution, after Miami police said that he offered $20 in exchange for sex to a woman who turned out to be an undercover cop. Of course, the story was irresistible to Above the Law, which delights in highlighting lawyers' most unlawyerly behavior. And so the blog ran numerous posts on Jones, dubbing him "The Nutty Professor" and posting the "incident report" on his arrest, on which it commented, "Note the tension between (1) Professor Jones’s pimpin’ ride, a Mercedes SL500, and (2) his alleged offer of a mere $20 to the 'undercover officer possing [sic] as a prostitute.'" It also ran a photocollage forwarded by a reader, which depicted Jones' face on a $20 bill and imagined him conversing with prostitutes. The charges were later dropped, and his record "expunged," reports the National Law Journal, and Jones remains on the Miami faculty.

But, of course, that is not the end of the story. Last week Jones, acting pro se, filed a complaint in federal court in Miami against ATL Founding Editor David Lat, as well as ATL's parent company and David Minkin, the parent's co-founder and publisher. The complaint includes three causes of action based on ATL's alleged insinuation that Jones had committed a crime, and on its posting of the photocollage: 1) false light; 2) invasion of privacy; 3) and copyright infringement, based on ATL's display of a photo of Jones.
Jones v. Minkin Complaint

On what grounds may Jones' lawsuit be dismissed? Let us count the ways (and, please, feel free to suggest more in the comments):

1) The false light claim is DOA. How do we know? Because the Florida Supreme Court told us in October 2008, in no uncertain terms, that false light simply doesn't exist as a cause of action in Florida:

Because we conclude that false light is largely duplicative of existing torts, but without the attendant protections of the First Amendment, we decline to recognize the tort....

Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098 (Fla. 2008). How a Florida law professor could file a lawsuit grounded in a tort that, only a year before, had been rejected by the Supreme Court of his state, is beyond me.

2) Jones' complaint makes much of the photocollage, which it calls a "racist cartoon." (Jones is African-American.) But any (non-IP) claim based on ATL's printing of it is clearly barred by Section 230 of the Communications Decency Act, which provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." On page 2 of the complaint, Jones concedes that the photocollage was "forwarded" to ATL by a third party. In other words, it was "provided by another information content provider." Section 230 should bar any Jones' claims insofar as they are based on the photocollage. Update: for those questioning whether Section 230 would apply here, please read such cases as Batzel v. Smith, Barrett v. Rosenthal, and Blumenthal v. Drudge. Yes, courts have interpreted the reach of the statute as extraordinarily broad -- likely much broader than Congress ever intended.

3) Jones' claim for invasion of privacy is premised on the allegation that ATL "ma[de] private records public." Huh? ATL posted a police "incident report" about Jones' arrest -- clearly a public record. See Fla. Stat. § 119.105 ("Police reports are public records except as otherwise made exempt or confidential."). (The Miami Herald also reported on the incident report. See "UM law professor charged with solicitation," Miami Herald, Oct. 26, 2007.) Jones emphasizes that his arrest was "expunged," but ATL still has the First Amendment right to report on it. Jones simply hasn't identified any private information allegedly revealed by ATL.

4) Lastly, Jones' copyright claim is almost certainly doomed as well. A copyright plaintiff must allege and prove ownership and registration of the copyrighted work. See 17 U.S.C. § 411; Montgomery v. Noga, 168 F.3d 1282, 1289 (11th Cir. 1999). Jones has done neither. In fact, his complaint says that the photo was "stolen from the UM website without permission," strongly suggesting that the university -- not Jones -- is the actual copyright owner. And in the unlikely event that Jones is able to prove that he is the copyright owner, ATL has a good chance of prevailing on a fair use defense. See Sedgwick Claims Management Services, Inc. v. Delsman, 2009 WL 2157573 (N.D. Cal., July 17, 2009) (granting motion to dismiss copyright claim on grounds of fair use where blogger had posted photos of business executives he criticized on blog).

Jones has asked for a total of $44 million, as well as an injunction ordering ATL to remove the offending content. He'll be lucky if he escapes without an award of sanctions and attorneys' fees. (Florida has two narrow anti-SLAPP statutes, but they don't appear to apply here.)

Both Jones and Lat declined to comment to the National Law Journal. I've emailed them both, to give them the chance to comment here if they choose.

Update: Prof. Volokh agrees with my take, calling the lawsuit "a loser. In part, it’s even downright frivolous."