Monday, August 24, 2009
To which I say: good luck.
Here's the legal background. Cohen sought to sue the blogger behind "Skanks in NYC" for defamation. But she didn't know who the blogger was. So she initiated proceedings in New York state court for pre-action discovery under CPLR § 3102(c), asking a judge to order Google, which hosted the blog through its Blogger service, to produce identifying information (e.g., email and IP address) to Cohen. Port (while remaining anonymous), hired attorneys to resist Cohen's demand for information. She argued that the words in the blog were not capable of defamatory meaning, and that the revelation of her identity would violate her constitutional right to speak anonymously.
Google, for its part, sat on the sidelines, submitting "essentially...no substantive opposition" (p. 1) to Cohen's application under section 3102(c). Port told the Daily News, "When I was being defended by attorneys for Google, I thought my right to privacy was being protected." But I think she is seriously mistaken if she thought she "was being defended by attorneys for Google." Again, Google did not resist Cohen's discovery action, and Google's attorneys owe their loyalty to Google, not Port. Google wouldn't turn over the information voluntarily, but as soon as Cohen obtained her court order, Google complied, producing an email address associated with the Blogger account, from which Cohen was quickly able to identify Port.
But now, according to the Daily News, Port will "charge Google 'breached its fiduciary duty to protect her expectation of anonymity,' said her high-powered attorney Salvatore Strazzullo." (Please do make sure to check out the web site of said "high-powered attorney," wherein he boasts that he has been "glorified as an outspoken attorney BY THE INSIDER television show and called 'a cross between a bulldog and Chihuahua' BY NY POST WRITER ANDREA PEYSER.")
Port's attorney Strazzullo says he is "ready to take this all the way to the Supreme Court." I doubt he will find much sympathy there.
UPDATE: Once again demonstrating its inability to get basic legal facts right, Techdirt claims that "Liskula Cohen bizarrely sued Google and an anonymous blogger for putting up a blog...." False, as I first explained last January. Cohen sought pre-action discovery under CPLR § 3102(c), seeking information from Google, but has not sued Google, Port, or anyone else. UPDATE II: Now the author of the Techdirt post says I'm "being nitpicky" because I've "got some weird obsession with trying to make us look bad..." Actually, Techdirt does quite an excellent job at making itself "look bad" when it comes to reporting on legal matters. The lede of the post on Cohen contained two errors: 1) that Cohen "sued Google"; and 2) that Cohen "sued...an anonymous blogger." And rather than correct its errors, it attacks me personally. And its effort to defend itself contains further errors. Techdirt says "for all intents and purposes, [Google] was" sued. Wrong. Google was merely the subject of third-party discovery; it was not remotely "sued." And Techdirt writes, "Cohen went to court, forced Google into court, forced Google to defend itself and a judge ruled against Google and in favor of Cohen." False. As I explained, Google did not "defend itself"; it submitted "essentially...no substantive opposition" (p. 1) to Cohen's application. And the judge did not "rule against Google"; it ruled against Port. Why anyone would rely on Techdirt for accurate reporting on legal issues is beyond me. UPDATE III: Goaded by its own commenters, Techdirt finally corrected its error. But it still insists, "In common parlance, the company was sued, which is why pretty much every reporter wrote it up that way." Actually, the real reason some (but certainly not all) reporters made that error is because they're sloppy and don't take the time to make sure they get basic legal concepts right. UPDATE IV: It only gets better. Techdirt is now back to insisting, "She sued." Then why did it correct its post? And citing erroneous newspaper reports for that falsehood does not exactly help its cause.
Monday, August 17, 2009
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?"
Wednesday, March 11, 2009
Lawyer for 'Skanks in NYC' blogger invokes 'douchebag' precedent; fights effort to reveal blogger's identity
A lawyer for the blogger argued before Supreme Court Justice Joan Madden that the raunchy digs at Cohen amount to nothing more than "youthful, jocular, slangy" comments that are common on the Internet.
"Skanks, ho - if you Google it, you get millions of hits," said lawyer Anne Salisbury, adding that the comments are "obviously in a sarcastic tone."
She cited a recent ruling in which aNew Jersey judge tossed out a defamation suit filed by three women whose pictures showed up on the Web site "Hot Chicks With Douchebags."
"It's snide, it's trash talk, it's the bane of the Internet right now," Salisbury said before Madden.
As for Cohen's arguments, the Daily News reports:
"They impugned her chastity," he said. "It is affecting her business."
The law often presents interesting and difficult issues of causation. Attempting to prove that a 37-year-old's modeling career is on the wane because of a blogger's allegation of skankiness -- rather, than, say, because of her 37-years-oldedness -- is a causation issue that will surely be taught in first year torts classes for decades to come.
The AP reports that the judge "reserved decision" on whether to order Google to cough up the bloggers' ID.
Wednesday, February 11, 2009
Well, at least that's the "ruling" that made for a sensational and New Jersey-cliché-filled lede. Here's the more precise and legalistic version: first came an excellent and informative web site called "Hot Chicks with Douchebags," which includes pictures and descriptions of...duh. The Internet was too small to contain all the possibilities such a subject offered, so douchebag-chronicler Jay Louis got himself a book contract with Simon & Shuster. Said book included pictures of three NJ hotties taken at Club Bliss in Clifton (spitting distance from where the Garden State Parkway crosses Route 3), posing alongside several alleged douchebags, including an example of a subspecies called a "federbag": "famous in their own minds, they live the celebrity rock star life style while being neither celebrity nor rock star." Another picture of one of the subjects "comes under the title heading 'Step 5: Leave New Jersey'. Under this heading the author describes why in his opinion leaving New Jersey is an essential step in 'the de-douchification process' of a male."
Apparently the acclaim that comes with being labeled "Hot Chicks" wasn't enough to outweigh the anguish caused by being pegged as cavorting with accused douchebags, so the three women -- Yvette Gorzelany, Joanna Obiedzinski, and Paulina Pakos -- sued last October for defamation and a grab bag of other torts (including, hilariously (at least to California lawyers) "a non-existent New Jersey statute described as the “Business & Professions Code Section 17200”), naming the book's publisher and author, as well as the club and its photographers. But the court was something less than sympathetic:
The Court finds that the text and photographs do not constitute defamatory falsehood of or concerning any of the plaintiffs. Instead the photographs in which the plaintiffs appear and the accompanying text are used for humorous social commentary. None of the plaintiffs are identified in the text or indeed in the entire book. There are no captions which describe anything within either of the photographs. Instead the photographs are used for a general depiction to support the commentary of the author. Consequently, no defamatory meaning can be imputed to plaintiff. Furthermore, since the text as a whole is not “of or concerning” plaintiffs, or susceptible to a defamatory meaning, the complaint as a matter of law is not defamatory and plaintiffs cannot by innuendo make it defamatory. Vogel v. Forbes, 500 F.Supp. 1081 (A.D. Pa. 1980); Shapiro v. Newsday, 5 Med.L.Rptr. 2007.Shockingly, the court did not bother to cite to the closely on-point decision from the California Court of Appeal protecting use of the word "skank" from eager defamation plaintiffs.
An examination of the entire publication compels the Court to conclude that a reasonable person would determine that the book Hot Chicks With Douchebags is intended to be satirical humor. While it may in some eyes be vulgar and tasteless, it definitely is not an assertion of fact that anyone would take seriously. Pring v. Penthouse International, 695 F.2d 438, 443 (10th Cir. 1982). Failing as an assertion of fact, the book must be treated as protected expression of opinion. Consequently, it is absolutely privileged under the First Amendment.
Liskula Cohen, the model/plaintiff accused of being a "Skank in NYC," must be hoping that the growing First Amendment trend embodied in the opinion in Gorzelany v. Simon & Shuster, Inc. doesn't cross the Hudson.
One last thing: kudos to the defendants' attorneys at Davis Wright Tremaine LLP, a firm which is now singularly responsible for your freedom to shout "skank" in California and "douchebag" in New Jersey. Such work may not be as lucrative as, say, winning a $65 million settlement (oops!) from Facebook, but all fans of the First Amendment owe them a debt of gratitude. Or at least a drink at Club Bliss.
UPDATE: I am reminded that one of the alleged you-know-whats has filed a similar lawsuit in state court in Las Vegas. More here. Complaint here.
Wednesday, February 4, 2009
In The Know: Are Reality Shows Setting Unrealistic Standards For Skanks?
h/t "John Dwyer's Credibility"
Monday, January 26, 2009
The suspense is killing us...
UPDATE: turns out there actually was a hearing today. Reports Daily Online Examiner:
Judge Joan Madden said in court she wouldn't unmask the blogger until he or she had been served with papers and given an opportunity to object. Madden ordered Google to email the blog creator with the court papers by Wednesday.According to the Examiner, the judge punted on the issue of whether Skanks in NYC actually defamed Cohen:
The judge, to her credit, hesitated to rule that the statements were enough to support a defamation lawsuit. "I'm not comfortable signing this," she told the lawyers in an off-the-record bench conference.More from Citizen Media Law Project.
Thursday, January 8, 2009
Here's the scoop. Cohen wants to sue the people who posted nasty things about her on "Skanks in NYC." One problem: she doesn't know who they are. But Google, which hosts the blog, may. Or, rather, Google may have the IP addresses (and other identifying information) of the people who posted the allegedly defamatory comments. And once Cohen has the IP addresses, she can find out what ISP the alleged defamer(s) used to post the "skank"y accusations, which might lead her some day to some actual human beings (if one can even use that term for the people who created Skanks in NYC).
So what do you do if you're a wannabe plaintiff in NYC who doesn't like being called a "Skank in NYC," but you don't know whom to sue? Well, seek an "order for pre-action disclosure" under CPLR § 3102(c), of course. That's a special New York law that lets anyone ask a court for permission to seek discovery even before suing someone. Convenient! And that's exactly what Ms. Cohen did. She did NOT sue Google. Rather, she just asked a court for permission to demand that Google give her the alleged defamers' IP addresses. Google is not a defendant, but a mere "respondent." So I'm sure they're breathing easier up in Mountain View.
Now, a round of kudos. First, to Ms. Cohen's attorneys at Wagner Davis P.C. for NOT suing Google. As I explained yesterday, that would have been a sure route to dismissal under Section 230 of the Communications Decency Act (not to mention an embarrassing smackdown on the world's top Section 230 blog). Next, to Dareh Gregorian of the New York Post, who accurately reported on Jan. 6 that Cohen "is seeking a court order that would force Google to reveal the person or persons behind the postings so she can hold them accountable with a defamation lawsuit." The Post's article may have been a bit coy on the procedural posture of Ms. Cohen's fight, but at least it didn't name an incorrect defendant, when in fact there is no defendant yet at all. And lastly to Sam Bayard of the Citizen Media Law Project, whose application of actual New York defamation case law to the facts of this case advances our knowledge of the law of "skank" by several orders of magnitude.
The New York Supreme Court has scheduled a hearing on Ms. Cohen's request for discovery on January 26 at 9:30 am. C&C is currently accepting applications for a New York stringer available to cover the proceedings.
Wednesday, January 7, 2009
Incidentally, the Daily News story on the skank suit says that Cohen sued Google, which merely owns the Blogger service that hosts Skanks in NYC (but which, adhering to its promise not be be "evil," presumably did not itself call Ms. Cohen a "skank"). Assuming that the Daily News' description of the suit is accurate (i.e., that it actually names Google as a defendant), then I predict the likelihood of Google winning a motion to dismiss is approximately 100%. Under section 230 of the Communications Decency Act, the host of a blog enjoys virtually absolute immunity for material posted by others. Whether Ms. Cohen can persuade a court to force Google to cough up the IP address(es) of whoever posted the accusations of skankiness is a different, and interesting, question. Having those IP addresses would, of course, would help Ms. Cohen locate the more appropriate defendant(s).
Now I'm off to research whether I can sue Ms. Girl in Short Shorts for referring to me as "somber."
Tuesday, January 6, 2009
A former Vogue cover girl is standing up to cyber bullies - fighting to unmask the anonymous cowards who've turned to the Web to ruin her reputation in the modeling business with a "Skanks in NYC" blog.
Liskula Cohen, 36, is seeking a court order that would force Google to reveal the person or persons behind the postings so she can hold them accountable with a defamation lawsuit.
The anonymous bloggers have "posted entries, including photographs, captions to the photographs and commentary solely about Liskula Cohen that describe her as a 'skank' and a 'ho,' " her filing in Manhattan Supreme Court says.
So is it defamatory to call someone a "skank"? Not in California! The California Court of Appeal considered this precise issue in a case called Seelig v. Infinity Broadcasting and determined that the First Amendment protects the right to call someone a "skank" because the word has "no generally recognized meaning," is "a "subjective expression of disapproval, devoid of any factual content," and is mere "rhetorical hyperbole":
The phrase big skank is not actionable because it is too vague to be capable of being proven true or false. Attributing the comment to a specific source, plaintiff' s ex-husband, does not alter that conclusion. The word skank is a derogatory slang term of recent vintage that has no generally recognized meaning. Like "' creepazoid attorney,' "it is a "subjective expression of disapproval, devoid of any factual content." (Ferlauto v. Hamsher, supra, 74 Cal.App.4th at p. 1404; Copp v. Paxton (1996) 45 Cal.App.4th 829, 838.) Indeed, plaintiff provided no accepted dictionary definition for the term skank to the trial court and, instead, only proffered a declaration from her ex-husband stating his understanding of the term skank as referring to "a woman of loose morals." Plaintiff has cited no reported decision in California or elsewhere that has held the term skank constitutes actionable defamation, nor has our own research revealed any such decision.
Furthermore, when considered in the context of defendants' entire radio broadcast, the term skank constitutes rhetorical hyperbole which no listener could reasonably have interpreted to be a statement of actual fact. The irreverence of the Sarah and Vinnie morning radio program, which may strike some as humorous and others as gratuitously disparaging, is not atypical of this genre. (Hobbs v. Imus (1999) 266 A.D.2d 36 [698 N.Y.S.2d 25]; Wilson v. Grant (1996) 297 N.J.Super. 128 [687 A.2d 1009].) Listening to the tape of the radio broadcast confirms the nonserious nature of the discussion apparent from the written transcript. The colloquy comes across as light banter between the participants, frequently punctuated by laughter, concerning the Show and plaintiff' s unwillingness to be interviewed on defendants' radio program without receiving written assurance that defendants would not "bag on her." The skank remark, the ensuing colloquy chiding Uzette for having made the remark, and Uzette' s efforts to assuage it by noting the source had been a "jilted ex-husband," [FOOTNOTE 7] are presented in such a way that no reasonable listener would take them as factual pronouncements. (See Hobbs v. Imus, supra, at p. 26.)
As useful as the Seelig decision is to attorneys defending media clients, I don't think it's particularly persuasive on the "skank" point; most people know what the word actually means. So New York judges may not agree with their colleagues to the west. (And the Post article does make clear that the blog used words other than "skank" that may be more clearly actionable.) So we First Amendment lawyers can still look forward to the day when the Supreme Court may be called in to resolve the pressing issue of the various states' disagreements over skank.