U.S. District Judge John Tharp Jr. has cleared the way for the blog Above the Law to stand trial for defamation and invasion of privacy in an action brought by Illinois attorney, Meanith Huon. Huon brought suit over coverage of her criminal trial for an alleged aggravated assault against a woman who responded to a Craigslist ad seeking promotional models. ATL is a popular blog for legal gossip and stories that was founded by David Lat. Lat is the Managing Editor and Elie Mystal the Editor on the website. Both are named defendants in the lawsuit (with a long list of other defendants).
While the Court dismissed the claims against the site Gawker, it held that the fourth amended complaint states valid claims against Latt and the other defendants for trial. In the complaint, Huon seeks relief against all the defendants for defamation per se (Count I), defamation per quod (Count II), false light invasion of privacy (Count III), intrusion upon seclusion (Count IV), intentional infliction of emotion distress (Count V), conspiracy to defame (Count VI), conspiracy to invade privacy (Count VII), tortious interference with prospective economic advantage (Count VIII), and cyberstalking and cyberbullying (Count IX). As the court ruled, many of these claims were remarkably weak and in my view should not have been put into a complaint in the interests of credibility with the court. However, Huon ultimately got a few claims through the challenge by the defendants to allow the case to move forward.
Meanith Huon is an attorney who was charged with two counts of criminal sexual assault, two counts of criminal sexual abuse, and one count of unlawful restraint. The charges were made by a woman named as a “Jane Doe” on June 29, 2008, in Madison County, Illinois. Police said that the victim had answered an advertisement on Craigslist for a promotional model but that it was Huon using a false name and that he posed as a supervisor for the company. The alleged victim said that she fought off Huon as an exit on a road and jumped from the car. Prosecutors said that the woman’s the purse and shoes were left behind in the car during her escape.
Huon was later also charged with cyberstalking and witness harassment based on allegations involving the same Jane Doe. Huon was tried on the 2008 sexual assault charges in May 2010 and acquitted. The 2009 cyberstalking and witness harassment charges were ultimately dismissed in December 2011.
There are a number of claims that were dismissed in favor of ATL and other defendants.One category of claims dismissed by the federal court was an effort by Huon to hold ATL and other sites liable for the comments left by viewers — a common section on blogs and websites. The Court ruled that websites and blogs are not liable for the comments left by third parties:
First, a website does not incite the posting of unlawful content merely by providing a forum for that content. See Chicago Lawyers’ Comm., 519 F.3d at 671-72 (“Nothing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination . . . .”). This approach has been applied even where the forum is likely to or frequently does contain postings of an unlawful nature. See, e.g., Dart v. Craigslist, Inc., 665 F. Supp. 2d 961, 968-69 (N.D. Ill. 2009) (citing Chicago Lawyers’ Comm., 519 F.3d at 671) (rejecting the plaintiff’s argument that Craigslist induced users to post unlawful ads by having an “adult services” category and granting judgment on the pleadings for the defendant). Huon’s argument that the defendants incited defamatory comments is further undercut by the ATL defendants’ and Gawker defendants’ written policies, which Huon sets forth in the Complaint, that prohibit the posting of defamatory or otherwise illegal material. See Dart, 665 F. Supp. 2d at 969 (“Plaintiff’s argument that Craigslist causes or induces illegal content is further undercut by the fact that Craigslist repeatedly warns users not to post such content.”); see also Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1171 (9th Cir. 2008) (“[T]he website did absolutely nothing to encourage the posting of defamatory content—indeed, the defamatory posting was contrary to the website’s express policies.”).
Second, numerous courts have determined that the CDA applies even where a website edits third-party content or manipulates such content to make it more prominent. . . .
Finally, the allegation (on “information and belief”) that some of the Jezebel Article comments were written by Gawker employees using aliases contains insufficient factual content to allow the Court to reasonably infer that the Gawker defendants were involved in creating those comments.14 The Complaint does not allege that any of the named individual Gawker defendants posted comments to the article. Nor does it allege that the Gawker employees who allegedly posted comments did so within the scope of their employment, which is a required element of a respondeat superior claim in Illinois.
The Court also found that excerpts of the criminal trial were protected under the fair report doctrine. As for the public disclosure claim, it warranted little more than a footnote:
To the extent that Huon’s Complaint can be read as attempting to state a claim for the tort of public disclosure of private facts, it fails for a similar reason: Huon has not identified any statements in the ATL Article or the Jezebel Article that reveal private facts about him. Since “private facts” are “intimate personal facts,” matters of public record—including information such as a person’s name, address, and age—do not qualify.
ATL was left fortunate with a posting that suggested that readers should google Huon’s name and indicated that, if the alleged victim had done so, she might have found prior rape allegations. The section stated:
And this, people, is why God invented Google. Had the victim Googled Huon, she would have found stories like this, from the Madison County Record:
A Chicago attorney who was posing as a supervisor for a company that sets up promotions for alcohol sales at area bars was charged in Madison County July 2, with two counts of criminal sexual assault, two counts of criminal sexual abuse and one count of unlawful restraint.
Meanith Huon, 38, of 3038 S Canal St. in Chicago, was arrested by the Chicago Police Department on July 1, and was transferred to Madison County the next day.
Or she might have come across this link, at Lawyer Gossip:
Lawyer, Meanith Huon, 39, who was originally charged with criminal sexual assault, sexual abuse and unlawful restraint is now facing charges of harassment and cyber stalking!
The court ruled that the material suggested “that Huon was charged with sexual assault and related offenses, and then subsequently charged with harassment and cyberstalking, all prior to the Jane Doe incident. It thus creates the impression that he was alleged to have committed sexual assault on two occasions—the first being the incident that prompted the sexual assault charges mentioned in the Madison County Article and Lawyer Gossip Post, and the second being the incident involving Jane Doe.” Such a suggestion falls within several per se defamation categories. The common law has long treated some types of states as raising per se claims where special damages or proof are unnecessary. These include 1. criminal offenses; 2. loathsome diseases; 3. matters incompatible with business, trade, profession, or office; and 4. Serious sexual misconduct.
The Court also upheld false light claims against ATL while dismissing facially weak inclusion upon seclusion, cyberstalking and conspiracy claims. This included an effort to create a new private action for cyberstalking, which the Court refuses to do:
Assuming without deciding that the first three factors of the Fisher test are met in this situation, the Court declines to imply a private right of action because doing so is not necessary to provide an adequate remedy for violations of the cyberstalking statute. The statute already provides a stiff penalty by categorizing cyberstalking as a Class 4 felony, see 720 ILCS 5/12- 7.5(b), which is punishable by between one and three years of imprisonment, 730 ILCS 5/5-4.5- 45; see also People v. Sucic, 401 Ill. App. 3d 492, 494, 928 N.E.2d 1231, 1234 (2010) (affirming defendant’s conviction and three-year sentence for violating the Illinois cyberstalking statute). In addition, and as Huon’s Complaint makes evident, a variety of tort remedies are potentially available to individuals who allege that they are victims of cyberstalking. Huon offers no argument that the combination of potential criminal prosecution and other civil causes of action provides inadequate remedies to victims of cyberstalking; in view of these remedies, the Court concludes that a private right of action under the statute is unnecessary and so declines to imply one.
It will be interesting to see not only if Huon proves the defamation but what the damages would be. The reporting on the charges were largely accurate. Huon’s reputation and standing had been severely impacted without any contribution of the referenced statements by the ATL. Notably, I just completed a podcast with Linda Greenhouse for the ABA Journal on legal reporting and blogging where I raised the issue of such liability. It remains a constant concern for legal bloggers who often discuss highly sensitive and alarming cases, including some involving lawyers. For the most part, Huon’s claims were dismissed including a key reaffirmation that blogs are not liable for comments. However, the google statement shows how a poorly crafted line can give rise to such claims. For sites like ATL that traffic in a fair amount of legal gossip the risks are particularly high that such claims will arise.
Here is the opinion: Above The Law Complaint.