In the "anything goes" world of Internet publishing, Gawker Media has staked out a sizable claim for itself for 13-years by aggressively pursuing celebrities in order to place them in a less-than-flattering light.

Last year this case pitting a media outlet's First Amendment right versus a celebrity's right to privacy caught our eye. Hulk Hogan, the ring name for retired "wrestler" Terry Bollea, sued the digital media outlet in a defamation suit alleging that posting a sexual encounter between Bollea and his friend's wife invaded his privacy.

On Friday, a 6-person south-Florida jury awarded the Hulkster a cool $115 in damages, only to be followed-up yesterday with an additional $25 million in punitive damages for the sex tape post. Not to be daunted, Gawker has vowed to appeal the verdict and soon will be angling to avoid posting an appeal bond that could cost every dime of $50 million.

This case featured a vile yet salacious act, recorded under dubious circumstances, blasted onto our news feeds by gutter journalism on steroids. After the verdicts were announced, media outlets showed some concern that a poorly defined right to privacy could trump a media outlet's right to free speech.

There is a notion that if a huge defamation verdict like this one withstands appeal, it will have a chilling effect on the media, including the more traditional media. The Gawker defamation case seems to have created a notion, even if temporarily, that one's right to free speech can be abused and that media outlets can be punished when doing so.

This is one of the cases that we will track on appeal over here at the Law Blogger. We will be sure to keep you posted.

Post Script - June 10, 2016
The Hulkster's judgment will indeed bring down Gawker as we know it today. Gawker has filed for bankruptcy and is for sale; its founder says he and his staff of writers will simply migrate to another platform to continue their craft.

Post #531

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Lawyer Todd Levitt

Last year, we followed the exploits of former Oakland County lawyer Todd Levitt as he battled some really bad press generated by a CMU student who parodied Levitt's Twitter account. Levitt sued the student for defamation; that law suit was dismissed generating some press coverage in the local Morning Sun newspaper.

With his first suit dismissed, Levitt sued again, this time naming the Morning Sun, the reporter covering the story, and other individuals as defendants claiming defamation, false light, civil conspiracy, invasion of his privacy, and other torts; he is seeking a million dollars for each count of his lawsuit. When the newspaper tried to get the case dismissed, the Isabella County Circuit Court said, "no" last month and scheduled the matter for trial.

The Morning Sun has appealed the ruling, but the case is not stayed during the interlocutory appeal and could go to trial this spring.

The issue decided against the newspaper hinges on whether their reporting on Levitt, and an award that he allegedly created -Top College Lawyer- and bestowed on himself, was materially false, or whether the "gist" or "sting" of their report was true. When it reported on this mess, the Morning Sun headline read: "Mt. Pleasant Lawyer suing student admits to fake award, marijuana tweets".

The trial judge concluded that the headline had a significant sting for the lawyer and that he made no such admission; it was the CMU student that Levitt was suing who alleged, apparently in a court proceeding, that Levitt's award was "fake". Also, the trial judge rejected the newspaper's attempt to characterize Levitt as a "public figure", which would significantly increase the defamation plaintiff's burden of proof in presenting his case to a jury.

To establish a claim for defamation, Mr. Levitt must prove by a preponderance of the evidence that:

• defendants made a false or defamatory statement about him;
• defendants published the statement to a third party but did not have a privilege to do so;
• defendants are at fault to at least the degree of negligence in making the statement;
• the statement has a "sting" or a tendency to harm Levitt's reputation.

These court rulings made so far in the case bode well for Mr. Levitt, which we find refreshing over here at the Law Blogger. Defamation is a difficult tort to prove.

Now, unless the newspaper and the other defendants want to have the merits of their conduct tested through a jury trial, a settlement is the only other way out.  We will continue to monitor the case and post the result.

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Post #515

YikYak, like most other social media start-ups, emerged as the brain-child of two recent college grads that borrowed money from their parents as their first mode of venture capital. Fast forward just 24-quick months, and we have a company valued at $200 to $300 million, receiving venture capital from the big boys of Silicon Valley.

The YikYak app allows localized user groups within a mile and a half radius to post anonymous instant messages to other users on any subject they want. The user agreement is designed to keep the user's identity private, short of a court-issued subpoena or court order.

You see the potential, for harm, embarrassment, harassment and abuse, we're quite sure. Think: Twitter without the profile.  If you have the inclination to being a cyberbully, this is your app.

Due to its short microcell radius, YikYak is ideal for the college campus. In one recent episode highlighted by family law blogger Jeanne Hannah, a philosophy professor at Eastern Michigan University was horrified when a teaching assistant with a YikYak account showed the professor what her students thought about her and the subject matter she presented that day.

The professor was so distraught over what she characterized as defamation, verbal abuse, even sexual harassment, she is pondering hiring legal counsel. Forevermore, this professor will be thinking about what her students are up to on their phones as they sit, presumably listening, to her lectures.

The NYT describes YikYak as the "go to" social media feed among college students. Taking the bad with the good, however, the Times also claims the app has been used to issue threats of mass violence on more than a dozen college campuses, including at Michigan State University.

Reaction to the app's basic function of anonymous hyper-local communication has been mixed; among the several petitions floating around on the Internet, Change.org's petition has garnered over 70,000 signatures. This number pales in comparison to the millions of satisfied users claimed by YikYak's board of directors in response to criticism of the company mission.

For our part, we here at the Law Blogger have to wonder about the utility of an app designed to deliver anonymous communication within a hyper-local community. We are all for free speech, but if you decide to communicate threats, real or imagined, should you be able to hide behind the software-engineered walls of privacy?

The real chilling aspect to this is the high value put on such a company by Silicon Valley, knowing that the hyper-texting youth of today cannot wait to spew venom from behind  such walls.

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Attorney Todd Levitt

Mt. Pleasant lawyer Todd Levitt has sued a local newspaper, a reporter, and its parent company for defamation [libel and slander], false light and other torts. The 19-page complaint, coming on the heels of the trial court's dismissal of Levitt's separate defamation suit against other defendants, contains 147 allegations spread across eleven counts.

Interestingly, the new defamation lawsuit also names the opposing counsel in the first case as well as two professors who teach in Central Michigan University's College of Business Administration.  For his part, opposing counsel has filed a grievance against Levitt.

Mr. Levitt became a plaintiff litigant when a student at CMU allegedly adopted Levitt's business and law firm persona in a fake Twitter account and began emanating a series of tweets that Levitt says were designed to defame, embarrass and harass.  This time last year, the complaint asserts, Levitt had 4500 followers [no easy feat] and was employed as an adjunct professor at CMU.

Last year, Levitt sued the CMU student but the defamation suit was tossed by the trial court and is now on appeal. We blogged about that case in this post.

Levitt has appealed the trial judge's order granting the tweeting student's motion for summary disposition on the basis that for over two months, the student's false Twitter persona gave no indication whatsoever that it was a parody and that the student intended to cause harm to Levitt's law practice through his micro-blog posts.

In the new case, Levitt is claiming that the local newspaper, Mt. Pleasant's Morning Sun, along with one of its reporters and the parent company, tortiously covered his battle with the Tweeting CMU student by intentionally [or recklessly] making misrepresentations about Levitt. Specifically, the complaint attacks one front-page headline that trumpets that Levitt made up a false award -Top College Lawyer- in order to enhance his electronic profile.

There are many many other examples set forth in the complaint. Fellow CMU business professors and adjunct instructors have a separate set of allegations reserved for their purported misdeeds.

We shall see where all of this goes; what a messy brawl.  If Levitt prevails in his tort case, it will definitely establish limits to what can be posted about a business on social media.

Meanwhile, Scribd, Volokh Conspiracy via the Washington Post, the ABA Journal, and even named defendant Morning Sun have all started following and reporting on this dispute as it involves the juicy intersection between social media and defamation. So stay tuned for updates and analysis as this case unfolds over the next few years.

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An interesting defamation lawsuit was recently filed in Oakland County Circuit Court, just in time for bow season which opens today for deer.

Last year, an archery company here in nearby Holly, MI resolved to revamp their website.  They turned to Five Sparrows, a web design and marketing firm based in Heartland, MI.

Apparently, Jim Beasley, owner of Spot Shooter Archery, was not satisfied with the performance of the web design firm, telling the Oakland Press that customers could not access products and the owner could not change prices within the online store created by Five Sparrows.

After some obvious "back-and-forth", Beasley had enough and posted a negative review on G+ as well as sent a letter to the local B2B group that connected the two businesses in the first place.  Five Sparrows' demand for a retraction was ignored and a defamation lawsuit followed.

The lawsuit, now assigned to Oakland Circuit Judge James Alexander, seeks damages in excess of the jurisdictional amount of $25,000.  Beasley's lawyer is none other than our friend down the street here in Clarkston; Robert Kostin.

Although this case was initially assigned to Judge Leo Bowman, we suspect it was re-assigned to Judge Alexander with a determination this was business litigation belonging to the new Business Court.

This litigation will be interesting.  In a defamation lawsuit, the plaintiff has the burden of proving that the statements made were false and were made intentionally or with reckless disregard for the truth.  Truth, by the way, is a valid defense to a defamation suit.

We here at the Law Blogger anticipate that Mr. Kostin will file a motion for summary disposition to dismiss this case.  And we like his chances as we feel this type of suit, always difficult to prove, is especially susceptible to dismissal given the facts of this case.

The Internet is nothing if not a massive functional forum for free speech.  Reviews of local businesses are crucial to the hyper-local evolution of commerce and trade.

Take a look at Spot Shooter's web site for yourself to see whether Five Sparrows constructed a functioning web site.  If you wanted to get outside today for the first day of bow season, would you be able to purchase your equipment on-line from Spot Shooter Archery?  If not, whose fault would that be?

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By:  Timothy P. Flynn

Just last week, I was arguing a wrongful death civil rights appeal before the United States Court of Appeals for the Sixth Circuit.  It had been my first trip to Cincinnati for an appeal in more than 5-years.  Always very serious business down there.

Then today, I noted that the National Law Journal carried a story of Cooley Law School's ill-fated defamation law suit that was first dismissed by a federal judge in Detroit, then affirmed by the Sixth Circuit.

Faithful readers of our blog will recall that Cooley was one of our pet subjects in years past.  Usually, the law school's own folly provided grist for our mill; i.e. when they, with an apparent straight face, proclaimed their #2 law school ranking on their own website.

Here is the trajectory of the Cooley law suit.  First, several of Cooley's alumni sued in federal court on a fraud theory claiming the tier three school's promotional literature and web site misrepresented how their graduates fared in the legal industry.  [Keep in mind the timing of the disgruntled students' attempted class action suit was during the Great Recession.]  Next, while those suits were pending, Cooley hired Miller Canfield to counter sue and to file separate actions for defamation.

It was Cooley's defamation suits that were dismissed for lack of merit.  We here at the Law Blogger predicted the suits would fail after years of expensive discovery and an even more costly appeal; our prediction has come true.

It gets costly to prop-up an over-inflated image.  Perhaps coincidentally, the NLJ's article also referenced projected faculty and staff cut backs scheduled for the nation's largest law school.

So if you are a current Cooley Law student, and you are planning to attend the Ann Arbor Campus, think again; that extension has been terminated. You will need to commute to either Auburn Hills or the flagship campus in Lansing.

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Alabama Blogger Roger Shuler

On Sundays, the NYT often supplies this blog with grist for our content mill; this Sunday's edition did not disappoint.  There it was, referenced on bottom of the front page, ranked as the 6th most read article at mid-day on the NYT's web site:  "Blogger's Incarceration Raises First Amendment Questions".

Apparently, Mr. Roger Shuler, through his blog titled Legal Schnauzer, does not know when to shut-up, or to stop posting.  At least that is the opinion of the local judge who jailed him back in late October for his contempt of court arising within the context of a defamation tort lawsuit filed in Shelby County, Alabama against Shuler by the son of a former Alabama Governor.

Now, to be fair, Mr. Shuler is litigious.  When he is the plaintiff or the petitioner in a law suit, he rarely wins.  In fact, one thing at which Shuler excels is getting creamed in civil law suits; to the point where it has cost he and his wife the ownership of their private residence.

In his blog, Shuler rails -conspiracy style- against an assortment of conservative local and state politicians.  All manner of sexual and criminal escapades are alleged against the public figures in the blog, without attribution or reliable verification.

Not content with simply being  a noisome cyberbully, Shuler has filed law suits against the following persons and entities:

• his neighbor; 
• his former employer; 
• the local police department; 
• the county sheriff; 
• the lawyer that won the case against said neighbor; 
• judges that have ruled against him; and
• the State Bar of Alabama, among others.

This nutty blogger is now on the short-list of imprisoned journalists maintained by the Committee to Protect Journalists; he is the only, er, "journalist" from the Western Hemisphere and shares company on the list with journalists from Iran, China and Egypt.

We here at the Law Blogger think Shuler likes the attention that his jail stint for contempt has garnered.  Through his inflammatory and defamatory posts, Shuler may have purposely set-out to be the blogosphere's poster-boy for free speech martyrdom.

By jailing the nutty blogger, the local county judge has attracted criticism from First Amendment scholars from across the nation who contend that his harsh remedy is a form of prior restraint; a content-based muzzle rather than a matter of judicial enforcement of orders and decorum.

On the other hand, Shuler blogs about the former governor's son, Robert Riley, Jr., petulantly leveling bald wholly unsupported allegations that Riley impregnated a lobbyist and paid for a secret abortion. In the blogosphere, you had better be ready to back-up such words in the inevitable defamation suit.

Here at the Law Blogger, one of our lawyers had a probate case that attracted media attention when the Wayne County Probate Judge assigned to the matter jailed one of the interested parties for contempt during live proceedings.

The party found in contempt by the probate judge had been blogging about the attorneys and the judge in the case.  While one of the interested parties, also a target of the blog, was presenting oral argument for an injunction and a contempt finding against this thrash-blogger, one of the judge's clerks was printing pages from the blog and feeding them to the judge for his review.

In this case, it sure did not aid the cyberbully's cause that her blog roundly trashed the presiding judge that was conducting the hearing.  She was sent to the courthouse lock-up for contempt until such time as she could prove to the probate judge that the offending pages had been removed from the Internet.

Now that was a judicial overreaction and a clear-cut case of prior restraint in possible violation of the declarant's First Amendment right to free speech.  As a result, the woman was featured in an above-the-fold article in the Detroit Free Press the next day, holding her cat, broad grin spread across her mug.  The article was not favorable to the judge's contempt ruling.

Perhaps justice would have been better served in the Shuler case if the local judge stuck to the merits of the defamation case and just let the nutty blogger keep paying the high-cost of his ridiculous conduct in the form of damages, fines, costs, attorney fees, liens, and all the other stinging components of adverse rulings in the civil courts.

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This blog has covered the defamation lawsuit filed by the Cooley Law School against one if it's more vocal critics from the beginning.  The defamation defendant is one of the legion of graduates that has trashed the law school; in this case, a blog titled "The Thomas M. Cooley Law School Scam".

This is an important privacy law and First Amendment case.  This post brings our readers up-to-date with an important development in the case: oral argument at the Michigan Court of Appeals.

Cooley's defamation suit, pending in the Ingham County Circuit Court, was assigned to Circuit Judge Clinton Canady III. Cooley is represented by the Miller Canfield law firm and the anonymous blogger, using the pseudonym "Rockstar05", is represented by Washington D.C. lawyer Paul Levy of Public Citizen, and Berkeley, MI attorney John Hermann.

For their part, Miller Canfield had been vigorously prosecuting their cause of action, issuing subpoenas in two states [Michigan and California] to the Rockstar05's Internet service provider, seeking to rip the lid off the blogger's identity.

In September and October of last year, hearings were conducted on Rockstar05's motion to quash Cooley's subpoenas.  Somewhere along the way, the internet service provider in California apparently made an inadvertent disclosure of the blogger's identity to the Miller Canfield firm, who immediately moved the court to amend the complaint, seeking to add the now-disclosed individual to the suit.

Judge Canady initially sequestered the pleadings and documents that referenced Rockstar05's identity while it considered supplemental briefings on this First Amendment issue.  The lower court denied Rockstar05's motion to quash the subpoena, providing time for defendant to lodge an interlocutory appeal, and allowing an amicus [various media organizations] to intervene in the case.

Rocktar05 appealed Judge Canady's decision relative to the subpoena, filing this brief on appeal through his [or her; we do not know] high-powered Washington D.C. media lawyer.  For it's part, the media has filed a hard-hitting amicus brief.

Oral arguments were conducted last week at the Michigan Court of Appeals in Lansing.  This blog predicts [hopes] that the Michigan Court of Appeals will decide in favor of the critical blogger.

The primary issue before the intermediate appellate court is whether Cooley must disclose to the trial court a rational litigation-oriented basis to divulge the blogger's identity; something other than revenge.  The blogger's appellate lawyer asked the Court of Appeals to adopt the "developing consensus" standard.  When asked to un-mask an anonymous speaker, this standard would require the trial court to:

• Provide notice to the anonymous speaker and an opportunity to defend the speaker's privacy;
• Require the defamation plaintiff to identify the specific allegedly tortious statements;
• Ensure the defamation plaintiff's complaint sets forth a valid cause of action;
• Require an offer of proof supporting the claims made in the defamation complaint; and
• Balance the relative harms to the plaintiff and defendant as to the anonymity.

For it's part, the Miller Canfield law firm argued on behalf of Cooley that Michigan law does not require a preliminary showing that it is likely to prevail on the merits prior to un-masking the anonymous litigant and blogger's identity.

We here at the Law Blogger will monitor this case and report back to our readers as to how the Court of Appeals decides this privacy law issue.

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This blog has covered the defamation lawsuit filed by the Cooley Law School against one if it's more vocal critics; one of the legion of graduates that has trashed the law school in a blog titled "The Thomas M. Cooley Law School Scam".  This post brings our readers up to date with some important recent developments in the case.

Cooley's defamation suit, pending in the Ingham County Circuit Court, was assigned to Circuit Judge Clinton Canady III. Cooley is represented by the Miller Canfield law firm and the anonymous blogger, using the pseudonym "Rockstar05", is represented by Berkeley, MI attorney John Hermann.

For their part, Miller Canfield has been vigorously prosecuting their cause of action, issuing subpoenas in two states [Michigan and California] to the Rockstar05's Internet service provider, seeking to rip the lid off the blogger's identity.

In September and October, hearings were conducted on Rockstar05's motion to quash Cooley's subpoenas.  Somewhere along the way, the internet service provider in California apparently made an inadvertent disclosure of the blogger's identity to the Miller Canfield firm, who immediately moved the court to amend the complaint, seeking to add the now-disclosed individual to the suit.

Judge Canady initially sequestered the pleadings and documents that referenced Rockstar05's identity while it considered supplemental briefings on this First Amendment issue.  In October, however, the lower court denied Rockstar05's motion to quash the subpoena, providing time for defendant to lodge an interlocatory appeal, and allowing an amicus [various media organizations] to intervene in the case.

Rocktar05 has appealed Judge Canady's decision relative to the subpoena.  The media has filed a hard-hitting amicus brief.  Miller Canfield's response on behalf of Cooley Law School is expected to be filed any day now.

This blog predicts that the Michigan Court of Appeals will grant leave for this issue to be decided; apparently one of first impression here in Michigan.

At stake is the ability of vocal critics of a "public figure" to express their opinion anonymously, without the fear of having their mask pulled off, and their identity disclosed.

You'll have to stay tuned for the results on this important case.  It could likely take a few years to wind its way through the court system.

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What is it about Cooley Law School's reputation that makes the folks over there so hyper-sensitive about how that veritable lawyer factory is portrayed?  Cooley just cannot seem to avoid repeatedly shooting itself in the foot on the Internet.

Yesterday, Cooley Law School President Don Leduc announced defamation lawsuits against a New York City law firm and several John Doe bloggers.  The lawsuits are splashed all over the law school's website.

The complaint against the bloggers (apparently a disparate group of highly dissatisfied former students) alleges the unknown defendants published false statements that Cooley law school representatives were committing fraud and other criminal acts in order to induce prospective students to attend the law school; that the business purpose of the school is to create, then transfer "securities" out of the robust stream of student loans coming into the school; and that the law school is under investigation by an undercover government task force for Title IV violations.

The complaint against the law firm alleges that Kurzon Strauss, a small New York City law firm, published false information relative to the law school's post-graduation employment rate and the school's student loan default rate in an apparent effort to attract litigants for a planned class action law suit against Cooley and other law schools.  This complaint sets out a series of business torts including defamation, interference with the law school's business relations, breach of contract, and "false light".

There is no doubt Cooley is taking this litigation seriously, hiring Michigan's premire "biglaw" firm: Miller Canfield.  The complaints were filed in the Ingham County Circuit Court on the basis Cooley's business injuries occurred in Lansing, MI, where the school is located.

Cooley apparently operates under the ancient Hollywood adage, "there is no such thing as bad publicity."  This blog wryly noted when Cooley purchased the rights to name a minor league baseball park (the former Oldsmobile Stadium; now known as Cooley Law School Stadium) and when the school's website shamelessly touted itself as the #2 law school in the country; second only to Harvard Law School.

These marketing gaffs come straight from the top of the law school's administration.  They do not advance the legitimate goals of Michigan's fifth law school, nor do they serve the interests of the legions of Cooley law graduates that have passed bar exams across the nation at historically higher than average rates.

Stay tuned for interesting developments on this one.  After Miller Canfield has earned about a half million in fees to conduct plenty of discovery, one of the sides will be filing dispositive motions sometime in 2013.

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