Monday, November 2, 2009

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."

43 comments:

  1. I agree this is a baseless lawsuit, but I'm not sure Section 230 is the reason why for #2. Section 230 generally protects providers of services that can be directly submitted to by users, like YouTube, even if the provider exercises some degree of editorial control (like YouTube removing porn and snuff films). But simply receiving content from someone else isn't sufficient to establish the safe harbor, and in this case it seems that the proximate cause of the blog posting of the complained-of material was indeed the poster of the blog entry, even if the material ultimately came from elsewhere.

    Nonetheless, it's not clear there is anything illegal about the photocollage to begin with.

    ReplyDelete
  2. Wow, I didn't realize that Section 230(c)(1) of the Communications Decency Act was so broad. It would seem to absolve one of any civil liability for republishing virtually anything, as long as one receives it from another "information content provider." I can see the concerns that motivated the provision--it'd be hard to justify holding someone civilly liable for, for example, posting a link or cutting and pasting content into a commentary. But it's easy to envision someone adopting another person's post wholesale and presenting it without comment. That would strike me as an implicit endorsement of the material--wouldn't the reposter be just as responsible as the original poster for any injuries that result?

    ReplyDelete
  3. Professor Jones didn't just need good legal advice. He also should have consulted with a PR specialist before engaging in this folly. What was an apparently limited emarassment is now spreading around the web like wildfire, vide the current commenter.

    ReplyDelete
  4. He also fails to properly plead diversity jurisdiction; he claims there's complete diversity but neglects to specify the citizenship of the corporate defendant. (In fact, I believe he neglects to discuss the corporate defendant in the body of the complaint.)

    ReplyDelete
  5. Legal Drafting ProfessorNovember 3, 2009 at 6:57 AM

    Frankly, the writing and grammar are also abysmal. If one of my law students turned in writing of this quality, they would re-draf the assignment or receive a failing grade. Lack of proper commas, misspellings, misplaced modifiers, and ambiguous pronouns. Ouch.

    ReplyDelete
  6. Wow, I kept thinking maybe he hired some random lawyer to do it for him so he didn't have to bother but nope he's representing himself.

    ReplyDelete
  7. The false light and invasion of privacy claims also could be barred by the fair report privilege, since they complain of information taken from a police report.

    ReplyDelete
  8. Reading the complaint, my first impression is that of someone who is using this forum to relitigate his criminal woes. Aside from bad grammar and a complaint that in and of itself, makes you wonder how he attained his position as a law professor, it is so lost in self-promotion that leaves one simply befuddled. $44 million huh? Hmmmmmm

    ReplyDelete
  9. In a number of ways, this complaint could serve as the basis for a Legal Writing, Civil Procedure, or Torts exam/assignment. Wow.

    ReplyDelete
  10. This must be so embarassing to the University -- the lawsuit exposes this professor's lack of judgment (along with his inability to draft basic legal documents or use normal written English) much more than his solicitation arrest.

    ReplyDelete
  11. Anonymous 12:42 -- It's pretty clear that section 230 applies even when an editor selects content for publication. So long as ATL isn't changing the meaning of the third party's posting, it seems 230 immunizes them.

    ReplyDelete
  12. Pretty sure there is no 28 USC § 13919. I assume he meant § 1391. Still pretty embarrassing for someone who claims to be a professor of law.

    ReplyDelete
  13. I agree with Legal Drafting Professor. The pleadings are horrendous. I wonder how someone could ascend to his position at a well-known law school with such sub-standard writing skills. We as lawyers do two things, we speak and we write. That is how we communicate our value. It doesnt matter how impressive your research skills are or how brillant your intuitive legal analysis is, if you cannot communicate clearly and effectively you are worthless. Based on his complaint, Professor Jones is worth about as much as a Ford Pinto at a demolition derby.

    ReplyDelete
  14. 9:02 - as a first year law student who just read through the complaint, I'm thinking of actually writing out the various grounds by which I think the suit could be dismissed. It's a real-life issue spotter!

    I can't believe the typos - the venue statute quoted is '13919' - how hard is that to check? The dangers of pro se...

    I'm obviously pretty new at this, but is personal jurisdiction open and shut here? The complaint cites the hussler case - but is selling magazines in a state the same as a website? I could see arguments on both sides... but what do I know?

    ReplyDelete
  15. Just one note on point 2, post-update: it's true there are several cases from within the 9th Circuit (including Batzel and Barrett--I don't think Blumenthal is analogous) and elsewhere saying that if someone sends something to a website owner, who then makes a conscious decision to put it on their website, that website owner is not an "information content provider" under 230. However, I think those cases are wrongly decided, and (I believe, although I haven't confirmed) the issue is still up for grabs within the 11th Circuit.

    ReplyDelete
  16. The saying, "He who represents himself has a fool for a client" comes to mind...

    Copyright in the Internet Age
    http://nextgencopyright.blogspot.com/

    ReplyDelete
  17. Professor Jones is about to get a practical lesson in the Streisand Effect.

    http://en.wikipedia.org/wiki/Streisand_effect

    ReplyDelete
  18. "I wonder how someone could ascend to his position at a well-known law school with such sub-standard writing skills."

    The answer to that is captured by two simple words: affirmative action.

    ReplyDelete
  19. "friable issues".

    I can't believe this fellow graduated from law school, passed the bar (did he?), practiced (ostensibly) as an attorney, and TEACHES LAW for a living. What could he possibly teach?

    His wacky woes are one thing. The abysmal 'pleading' is another. If he had gone to a half-way competent attorney he could have saved himself some embarrassment.

    ReplyDelete
  20. I do not find an entry for "Donald Marvin Jones" on the state bar web site:

    http://www.floridabar.org/names.nsf/MESearch?openform&P=&MN=&LN=jones&FN=donald&CT=&DB=names.nsf

    ReplyDelete
  21. I kept flashing back to Bonfire Of The Vanities while I was reading Dumbo's complaint. "Wrong turn" my ass.

    JoeInLA

    ReplyDelete
  22. As a former student of Professor Jones, who must now defend the integrity of my Alma Matter, I must point out:

    1. He is not a member of the Florida Bar. See the "find a lawyer" link at www.floridabar.org The fact that he could not find any actual Florida lawyer to prosecute this case speaks volumes as to his reputaion amongst alumni.

    2. As a fact witness, He will have an awfully difficult time prosecuting this case at trial pro se.

    3. I am thankful that D. Marvin Jones (that is the name he has always used at school, contrary to his insinuation otherwise) has demonstrated to the world that he is a fool. His students have known it forever, now Dean White can get rid of him without his inevitable accusations of racism.

    4. Jones is a NYU Grad.

    ReplyDelete
  23. It's certainly possible that Prof. Jones is not a member of the Florida Bar. I'm sure you remember the rather celebrated case a few years back where Kathleen Sullivan, then the Dean of Stanford Law School, had not been admitted to the California Bar.

    ReplyDelete
  24. So, I can't actually find him in good standing in FL, DC, NY or MD. Martindale.com has him as admitted in 1978.

    ReplyDelete
  25. DISMISSED ON ITS FACE; CITES ONLY 1332 JURISDICTION; HOWEVER JONES IS A FLORIDA RESIDENT; DOESN'T CITE 1331 / 1367 JURIS.

    ReplyDelete
  26. the irony of the whole thing is that i sat in his class this morning as we talked about low-value speech and obscenities... he is a total embarassment to the school, and one can only hope that dean white ships him out of here...

    ReplyDelete
  27. As another former student of Prof. Jones, this doesn't surprise me at all. In his defense, he did a decent job of not letting his bias show in class, but he doesn't strike any of his students as terribly bright. And nobody should be wondering how he got his job...that much is obvious. Finally, UM will never get rid of him because even the most baseless accusation of racism is enough to frighten any law school administration.

    ReplyDelete
  28. I'm a Miami Law alumnus and a former student of Professor Jones. The Complaint D. Marvin (as he has always gone by) filed is a complete embarrassment to the University and he should be fired immediately. To file a Complaint so full of grammatical and spelling mistakes is simply unacceptable. I truly believe this Complaint will be dismissed on a Rule 12(b)(6) motion and I hope the Court awards Rule 11 sanctions. Furthermore, the puffery of himself and the accusations of racism in the Complaint are just ridiculous. The only racist in this whole mess is D. Marvin himself. He clearly favors african-american students over other students in his class--ask anyone who's had him as a professor. I will not give another dime to the University until that baffoon is given the exit door.

    ReplyDelete
  29. The Jones vs. ALT lawsuit is, in my opinion, frivolous. No reasonable person reading any of the ALT posts would conclude therefrom that professor Jones is a "pimp" or a "drug dealer"--which is lynch-pin of the suit and the alleged “sting” of the alleged wrongs.

    I am a blogger, and the mere fact that this suit was filed has chilled my free speech. (Who wants to incur the expense of defending even a frivolous suit in Florida?)

    I have a proposed resolution that holds high the baton of free speech that ATL has been implicitly handed in this marathon: If Jones moves the court to dismiss WITH PREJUDICE today (not tomorrow) then ATL agrees to forego Rule 11 sanctions.

    Otherwise, Jones already looks like an illiterate boob who is not the brightest tool in the drawer (he asks the court for a jury trial on all "friable" issues and the look and feel of this complaint is less than professional) and when (not if) the case is dismissed, and the trial court holds that no reasonable attorney would have filed or maintained the action--Jones' reputation as a legal “scholar” will suffer far more damage that at the hands of the law student’s parody cartoonish –Photoshoped image that transparently motivated the good professor to improvidently file this bull-shit lawsuit in the first instance.

    ReplyDelete
  30. As a former student of D. Marvin Jones, I once hid the dry-erase markers he's so dependent on, during one of his classes. Watching him fumble around not being able to scribble unintelligibly on the whiteboard for an entire class was the most satisfying thing I've ever seen. Keep it Classy, Miami.

    ReplyDelete
  31. good post, but isn't it possible that New York law applies to this suit? if my barbri memory (hazy at best) serves me right, federal courts apply the choice of law rules of the state in which it sits. if SDFL is a district where this case could be brought, then Fla. choice of law rules may say New York law governs these claims. Even so, the New York Court of Appeals has ruled there is no common law right to privacy, so the only privacy tort is a statutory misappropriation tort (i think, don't quote me on it). Either way, seems like Ben is right on the money here with this complaint.

    ReplyDelete
  32. Although I have been practicing law for more than 25 years and tried more than 50 cases to verdict, before reading Professor Jones' Complaint I had never seen a plaintiff demand that a jury resolve all "friable" claims. Is that a term of art peculiar to the federal courts in Florida?

    ReplyDelete
  33. In reviewing the pro se "complaint' which was filed in this case, I was reminded of the numerous stories which KC Johnson has published on his blog (Durhan-in-Wonderland)exposing many of the Duke faculty members as academic frauds who,but for the incredible pressure for "diversity", wouldn't have a snow ball's chance in hell of receiving tenure at an accredited university. A white male with such poor writing skills would never have been admitted to law school, much less be hired to teach at one. Of course, the big losers in this case are the students who paid big bucks for a law degree from the U of M and find themselves forced to sit through his class.

    ReplyDelete
  34. The plaintiff is not an unintelligent man, and he would no doubt excel at a task of similar intellectual difficulty, if the legal issues did not involve himself.

    The underlying police matter was resolved in his favor, the record was expunged, and the plaintiff no doubt feels humiliated and indignant about the episode. And these emotions hampered his ability to think clearly.

    Strong emotions can cripple thought. Oncologists should not handle their own cancer. And in non-routine, emotionally charged situations, lawyers are best advised not to handle their own cases (or non-cases.)

    ReplyDelete
  35. It appears some of the posters have some racial animus and this particular issue is ripe for the picking. The fact of the matter is, this is but one man. Yes, African-American, but I bet to venture for every one (1) D. Marvin Jones, there are ten (10) caucasian, so-called attorneys/law professors who are similar in nature.

    ReplyDelete
  36. How does this lawsuit demonstrate the wackiness of the American legal system or the American legal academy? Anyone can *file* a suit about anything; the test of wackiness is whether it will get anywhere. You suggest Prof. Jones will be lucky to escape without sanctions for a frivolous filing. What exactly, then, is the legal system doing wrong here? As for what this shows about the American legal academy: is there some evidence that this kind of thing is representative of what law professors do? Shall all bloggers be judged by what one blogger writes? I don't think you want to start going down that road.

    ReplyDelete
  37. Need a couple of fake/edited Confucius sayings in here for balance:

    Man who represent himself in court have fool for a client.

    Never engage in a war of words with someone who buys pixels by the barrel.

    ReplyDelete
  38. Professor Jones is still a great professor. I was delighted to have him as a professor. Contrary to the misconception that Professor Jones prefers black students, I was a white student who performed extremely well. In my opinion he is a very educated individual that does not want his name thrown in the mud.

    The allegations in relation to his book is something strong to be considered. If his complaints are barred by various provisions at least he stood up for what he felt was right.

    Isn't that why we became lawyers in the first place??

    ReplyDelete
    Replies
    1. I completely concur with the idea that by profession, lawyers are, or at least should be, conditioned to stand up for what they believe to be right. Professor Jones is a brilliant man who made an error in judgment. This does not make him a racist idiot; just a flawed human being like the rest of us.

      Delete
  39. I attended UM Law in the mid-90s and had Professor Jones for Criminal Procedure. I am a white male, and did well in his class.

    Professor Jones was an excellent teacher and leader of classroom discussion - he did not show bias in the discussion and encouraged vigorous debate over aspects of 4th, 5th, and 6th Amendment practice.

    On my Crim Pro final exam, I argued for inclusion of all the evidence seized in the search-and-seizure fact pattern he gave the class. I ended up getting a high grade despite my arguing on the non-PC side of the issue; at the time, the exams were graded blindly, with your exam identified only by a random number.

    Agreed, though, that Professor Jones should have consulted with someone else before filing the complaint. It's the equivalent of me (a consumer bankruptcy practitioner) deciding to file a shareholders' derivative lawsuit.

    Some people see "affirmative action" anywhere, anytime they see a black person being successful. Some people are bigoted fools.

    UM JD '95, Section B Crim Pro, Spring 1993.

    ReplyDelete
  40. How does this lawsuit demonstrate the wackiness of the American legal system or the American legal academy? Anyone can *file* a suit about anything; the test of wackiness is whether it will get anywhere. You suggest Prof. Jones will be lucky to escape without sanctions for a frivolous filing. What exactly, then, is the legal system doing wrong here? As for what this shows about the American legal academy: is there some evidence that this kind of thing is representative of what law professors do? Shall all bloggers be judged by what one blogger writes? I don't think you want to start going down that road. law office riverside nj

    ReplyDelete

Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.

 
http://copyrightsandcampaigns.blogspot.com/