i am so glad that this very wrong ruling was overturned, and you are so correct of your assessment of this case. Hooray

Books contain more than the defamation. So of course they are not burned. How appalling that anyone should suggest any such thing, or consider it analogous.

Newspapers are, however, sometimes required to print retractions.

Sometimes pornography is confiscated in toto, not just the patently illegal stuff. Not sure I agree, but I understand how that comes about, especially when child porn is at stake.

Nobody is suggesting that any Internet company block use of its site, much less remove any content that is not specifically proven to be defamation.

If one click of a delete button by the original author of the proven defamation can be ordered, and the author is demonstrated to be unavailable, someone else with control can click.

TOS contemplates this, as is evident by most companies’ cost shifting in the event of litigation, to the person who caused the problem for them (and the plaintiff ) in the first place.

BTW, looks like big Internet players are very willing to purge their content, when so motivated:

https://www.nytimes.com/2017/09/07/us/politics/russia-facebook-twitter-election.html

David:

It’s late where I am so I will only respond to a few of your arguments, and we can pick up the debate when my schedule permits. But I would be remiss if I did not at least respond to some of your comments.

I.

Argument

David as an IP/ lawyer you should exercise more attention to detail. In my post, I specifically said post which are sued upon are frequently removed. I am sure you can find the landmark cases and the few posts in between which have not been removed because of “publicity”. So please do not applaud yourself for that overly apparent observation. The point of the matter still remains if you search Pacer and look at every suit which was filed in Federal Court, the majority of the post located in each indvidual Complaint seems to be magically removed. Additionally, because you incorrectly inferred that I have no knowledge of the court system and wrongly concluded that I am not a lawyer let me break down the issue, how we used to do it in the law school days.

The issue presented is whether there is a higher likelihood that the dirty.com will remove a libel post once sued given that ninety percent (90%) of complaints are non-suited and the posts contained therein are no longer active, yet a few selective posts have remained up?

The second issue presented is whether David Gringas relying on the first issue presented takes advantage of the average lay person by leading them to believe that suing thedirty.com and not the original poster will be a futile attempt and will not lead to a removal yet 90% of post are removed after litigation. (please check my math percentage)

You mentioned Sarah Jones, but you ironically supported my point. You admitted that once she sued it was taken down. It was her bone head car sales man attorney Jeter/Geter (I’m too lazy to look up the spelling) who sadly fucked it up for her. Marching her around like a mule on tv and thus Nik had no choice but to remain true to his brand as that issue and case would not quietly die. Assume Geters decision would have been upheld, Nik doesn’t have any money or any actual wealth, Geters would have been running around trying to get a garnishment or receiver just to find out that Nik was broke or to find a bank account with $40,000 and some skittles in it. (Please don’t ask me where I got the skittles comment from). The point is David Sarah would have had her post removed but for her imbecile attorney.

However, the question still remains, do I think that illogical that you remove post or command Nik to do it? No, not at all, I surprisingly agree with your removals. In an odd twist of events, it seems you are upholding your fiduciary responsibility as an attorney to advise your slime ball client in regard to what you believe is in his best interest. You could easily rack up Nik’s bill an extra 25k to 100k per suit, but instead you advise him “hey do we really want to be sitting in a deposition for 3 hours over some 21 year old.” So the premise seems very logical to me. What I take issue with is your constant hubris by continuing to post Federal complaints whose post contents are no longer even active.

II.

Argument

One of your arguments was particularly concerning. You stated “if you understood how the legal process worked, you’d understand that it often doesn’t matter whether a post is removed or not (yes, I’m talking about the Streisand Effect). The bottom line is that the minute a lawsuit is filed over something posted only, that creates a permanent public record (as you point out).”

Your argument that because a lawsuit is public, a person seeking removal is essentially wasting his time.”My post it up, fuck it let me leave it up for more people to see”. This my friend is a horrible argument.

You know better than anyone about sealing records David as you have done that personally yourself. Now, I agreed not to get muddy in this debate and instead agreed to conduct myself like a “professional troll” so I will honor that commitment and attempt to remain civil. So, let’s start with the basics in regard what a court will consider when issuing a sealing order.

“When determining whether to seal records or to issue a temporary sealing order A court will look at (1) the presumption of openness; (2) any probable adverse effect that sealing will have upon the general public health or safety, [and] no less restrictive means than sealing records will adequately and effectively protect the specific interest asserted.”

David unless the post concerns some potential terrorist, child molester, political figure or some other convicted sexual deviant who is running for elected office a court is going to grant the sealing order. We both clearly know this but yet the average 18 year old doesn’t.

I could picture myself setting this for an oral hearing and arguring judge “what public concern does the community have in determining whether 16-year-old Robert cheated on Jessica and whose truth was never adjudicated in a court of law and whose posting was in fact removed?

Sarah Jones Case was a widely publicized case in which she contributed to by going on talk shows, interviews, and the news telling the world about her lawsuit and to boot she was a former NFL cheerleader. That’s why it was picked up and remains to that day out there.

The average 18-year-old who hasn’t gotten his first job does not have that same problem. No major media outlet is going to be looking to pick up his story and republish it.

Thus, is a prime example of how you continue to commit false representations by telling people a narrowed version of the law.

I look forward to your response, additionally, I will address your other responses during normal hours.

P.S Although I thought your counter arguments were extremely weak I do believe David, you are a smart attorney and will not discredit your intelligence.

However, no one ever said Hitler was a dumb guy either.

Ben,

You are 100% correct about the limited remedies that have traditionally been available in defamation cases…..but the winds of change are blowing. In the past, you’d be right to say that equity doesn’t enjoin a libel.

But that rule is crumbling……Hassell v. Bird is one obvious example, but there are plenty of others — see, e.g., Hill v. Petrotech Resources Corp., 325 S.W. 3d 302 (Ky. 2010): https://scholar.google.com/scholar_case?case=240925263413877438

I’ll quote the scary part:

The recognition that false, defamatory speech is unprotected by the First Amendment has resulted in the development of a modern, superseding rule concerning the enjoining of defamatory speech. Under the modern rule, once a judge or jury has made a final determination that the speech at issue is defamatory, the speech determined to be false may be enjoined. The rule has been stated as follows:

[T]he prohibition [against enjoining defamation] is not absolute, as there are exceptional cases in which a prior restraint is acceptable. For instance, an injunction would issue to prohibit a defendant from reiterating statements which had been found in current and prior proceedings to be false and libelous to prevent future injury to the libel plaintiff’s personal reputation and business relations. An injunction restraining the publication of matter defaming a plaintiff personally [is] proper where there [is] no adequate remedy at law because of the recurrent nature of the defendant’s invasions of the plaintiffs rights, the need for a multiplicity of actions to assert the plaintiffs rights, the imminent threat of continued emotional and physical trauma, and the difficulty of evaluating the injuries in monetary terms.

* * *

Thus, as a matter of first impression, we adopt the modern rule that defamatory speech may be enjoined only after the trial court’s final determination by a preponderance of the evidence that the speech at issue is, in fact, false, and only then upon the condition that the injunction be narrowly tailored to limit the prohibited speech to that which has been judicially determined to be false.

I hate to break this to you, but I don’t debate trolls anymore. In the past, I thought there was some value in it. Sadly, I was proven wrong every time.

So, if you are truly interested in hearing my detailed response (trust me — I have plenty to say), don’t be a troll. Instead, come back and use your real name (like I do), then we can have an honest, open conversation about the issues.

Having said that, if you knew anything about me, you’d know there are two things I hate more than anything else: 1.) liars; and 2.) hypocrites.

As such, I take some issue with this line: “I would hope being an intellectual you would see the issue with your continuous false representations … . I am talking about the majority of lawsuits you are so incredibly proud of David, in which you conveniently fail to mention that the original posts are no longer active.”

Based on this allegation, you suggest that I “should clarify that the dirty.com does not usually remove post until they are sued.”

OK, couple things:

1.) If someone sues over a post, it’s never my call whether a post is removed or not….and if you understood how the legal process worked, you’d understand that it often doesn’t matter whether a post is removed or not (yes, I’m talking about the Streisand Effect). The bottom line is that the minute a lawsuit is filed over something posted only, that creates a permanent public record (as you point out).

2.) You obviously think that when a lawsuit is filed against TheDirty, the site routinely removes the post hoping to get out of the case quickly. That’s actually not true, but for the sake of argument let’s assume it is true. What I don’t understand is why you think this is somehow a secret?

Take the Sarah Jones case for example. Yes, Nik removed the posts at issue in that case when he learned about the lawsuit (because his boss told him to). Did Nik ever try to hide the fact that the posts were removed? HELL NO — he mentioned that in nearly every media interview about the case, but no one listened. Indeed, in one of its orders that were later reversed on appeal, the trial judge said — falsely — that Nik did NOT remove the posts….even though it was undisputed that he did.

3.) As I already said, removing a post after a lawsuit has been filed is almost always a pointless exercise. The posts in the Sarah Jones case were removed more than 7 years ago, but essentially every word remains publicly available through a simple Google search.

And then we have examples like this news story about a different lawsuit:
https://www.arktimes.com/ArkansasBlog/archives/2015/01/23/judge-gives-12-million-verdict-over-libelous-comments-on-thedirtycom

Once again, because the plaintiff commenced a public lawsuit, the media was allowed to repeat and republish every word of the allegedly defamatory post, and this story will probably remain online forever.

Oh, and no, in that case the post wasn’t removed; it’s still online here: https://gossip.thedirty.com/gossip/little-rock-1/drains-your-bank-and-your-tool/#post-1467091

Well, so much for my rule about not responding to trolls….

David:

Your moral compass is perplexing to me. I have seen you brag about being sued. I have also seen you contribute to the fallacy that the dirty.com infrequently removes postings. Instead, you should clarify that the dirty.com does not usually remove post until they are sued.

For the non-lawyers who read only the first page of an appellate opinion and think they have a limited to no chance of recourse is saddening. If people actually took the time out to read the full contents of the federal complaints you post and locate the original libel post themselves they would realize that many of the postings are frequently removed out of a fear of excessive litigation cost.

While I can’t fault you for other peoples poor analytical skills, I would hope being an intellectual you would see the issue with your continuous false representations. Please do not respond with what the anticipated response that “ the dirty.com has posted that they have removed stuff in the past.” I am talking about the majority of lawsuits you are so incredibly proud of David, that you conveniently fail to mention that the original post are no longer active.

While I understand and respect everyone’s First Amendment rights, you as a bright lawyer should have realized that you are not just protecting freedom of speech you, but instead, you continuously contribute to monetization of other peoples misery. Please note that I’m not so narrow-minded that I cannot anticipate and understand the other side of this debate, which is that peoples freedom of speech should be protected and that some, if not most of the stories are somewhat true. So, in essence, your a freedom fighter “you give victims justice by being able to speak out.” Please note that my last sentence was entrenched with sarcasm.

Here is my main issue with you David and some of the clients you represent. You have numerous college students who do not have the means to pay for a lawyer whose postings remain up. Yet the average doctor or lawyer normally has the means to get post taken down. Nik has said publicly college students are who he likes to target. Real father of the year material if you ask me.

Your claim to have a forum which reviews post but we both knows that’s bullshit and if so, it’s extremely limited. Most people do not know that the majority of states provide for and allow pre-suit discovery in order to locate discoverable information such as someone’s IP address. Instead, you intentionally make it difficult for dimwit lawyers to get a default judgment because they are unable to ascertain who to sue. Now the true question presented, “is it your fault if a lawyer is too lazy to read the rules of civil procedure.” Unfortunately, that is a debate for another day.

If you are truly a person, who does the right thing or wants to do the right thing why don’t you make an informative blog of how to get a post truly taken down, not some half-ass blog that says email us. Try making a blog which states the formal steps for initiating a federal complaint. Do something productive with your time David instead of posting stories from lawsuits on your twitter feed to compensate for whatever diminished childhood deficiency you feel that you may need to justify now that you are a snake oil salesman attorney. Please also take note that I understand that continually insulting you does not make my argument any more or less valid and that I realize if we were in a court of law my comments wouldn’t “fly” with a judge. Even though in all probability, the judge would mostly like agree internally agree with my characterization of you. However, I digress;

As you are most likely aware anyone with a keyboard, no girlfriend and sometime on their hands can post pretty much anything they want. As a lawyer who has been arrested and/or charged with child molestation, who turned his life around you would think that you would be more sympathetic to false accusations, that is if they are in fact false. As bright as you are, anytime someone googles your name your child molestation arrest photos show up along with stories about the incident. I point this out not to humiliate you but to try to make an illustration that sometimes there are better ways to get justice for both people on both sides of the table.

And David, I get it, I get it the child molester needs a lawyer, the rapist needs a lawyer, the person who just killing numerous people needs a lawyer. If they don’t get fair and adequate representation then the entire legal system could collapse and who knows we might make up in a communist, fascist government based political system. I understand the canned, generic in the box counter-argument.

Bottom line David is that I have a suggestion for you. Why don’t you take the vast amount of money you have been paid to defend these slimeballs and hire a lobbying firm to draft a bill. Or if all that money you have been paid has not made you lazy and fat draft one yourself.

The bill should require that any person who posts anonymously be required to designate an email in where they can receive service of process. If the individual, partnership or corporation fails to implement a designated email feature, they should be precluded from allowing anonymous comments. Additionally, when a suit is commenced, and the posting party fails to respond then the hosting website should be required to remove the post. If the said website fails to remove the post the owner and company should both be liable.

I looked forward to your enlightening response.

Courts do not order bookstores, libraries and newsstands to go out and collect publications that have been found to be defamatory so they can be burned (death penalty). The injured party’s remedy for damages is monetary, not the burning of books (or forced de-publication of internet content). Equity does not enjoin a libel; that’s a bedrock principle.

If speech is indeed defamatory, it should be dealt a death blow. That is the idea.

Once defamation, death threats, criminal conspiracies, etc. (and intentional infliction of emotional distress in the form of revenge porn, for that matter, as Chemerinsky’s brief mentions) are deleted, they should be gone. Good thing. Too bad you cannot return to status quo ante, but removal is better than having them globally available in perpetuity.

These are NOT protected speech. Everyone seems to skirt around that, even the briefs in support of Yelp.

This has nothing to do with two types of people, or other homespun wisdom. That remark is just kicking up dust.

Of course no one should force Yelp to pay damages to anyone for third-party content on its website, ever. That is very sound law, for very good reasons.

And of course having to obey subpoenas to divulge user identities is more burdensome, for the reasons given. Such subpoenas are issued to assist litigation. No one has been proven to have done anything wrong yet! The speech in question is presumed protected; the plaintiff has got to prove it isn’t. In short, subpoenas may issue based on a facially plausible accusation, nothing more. We all know how thin that is. And yet, the subpoenas issue.

Yelp has an important interest in maintaining user anonymity insofar as it promotes candor in the reviews, and maintains good relations with all of its users, encouraging more use and more user contributions, and bringing in more ad revenues for Yelp.

Yelp has no interest in maintaining posts that are adjudicated as defamatory — which of course means the posts were determined to be, among other things, false, by a court. They have got to be false; if not, they cannot possibly be defamatory.

I quite obviously am very familiar with the legal system. By the way, I don’t understand why you cite a case having to do with banking regulations and SARs for a basic, unobjectionable principle of statutory construction that does not apply when statutory language is demonstratively vague. If the interpretation you suggest were the correct one, then subpoenas of the type I discussed could not be issued because they would violate the “plain language” of the statute.

(And the CDA is far better than “the alternative?” What alternative would that be? No one is suggesting websites should be subject to suit or threat of liability, even for publishing FALSE information, much less for publishing truthful information. Yelp was not sued. This is all perfectly fine, and skirts the issue yet again.)

I hope that your suggestion that I must not be familiar with our legal system is not a wee little riff on the obviously ethnic name. In my personal experience, it too often is, but I never prejudge.

Some ethnic females can do logic. Some can even do advanced calculus and play chess. Crazy, I know. A brave new world out there, Prospero.

Sonja,

I’m not trying to disparage you (i’m just naturally snarky, and I’ll admit my patience is running thin with anti-CDA birther-type arguments). Anyway, trust me – I have no power to remove comments from this site and even if I did, I wouldn’t exercise that power to silence the debate.

Having said that, I’m sorry if this sounds disparaging, but you don’t seem to be familiar with how the legal system works. On several levels.

First, laws are made by our elected representatives, not by courts. If a judge doesn’t like the law, do you know what power that judge has to “fix” the law? NONE — “courts are not concerned with the wisdom or policy of legislation.” Lochner v. New York, 198 U.S. 45, 69 (1905) (Holmes, J., dissenting). Because courts have no power to legislate, judges have no authority to ignore a law simply because they disagree with the policy choices of the elected representatives who passed it; “Plaintiff argues that providing ISPs immunity … is bad policy. Yet, it is not the role of the federal courts to second-guess a clearly stated Congressional policy decision.” Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532, 539 n.5 (E.D.Va. 2003).

Second, when the language of a statute is plain, like it is with the CDA, courts have no authority to “interpret” that language. Rather, “Because the plain language of the CDA is clear … the Court need not engage in an analysis of the CDA’s legislative history or purpose. Atlantic Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690, 704 (S.D.N.Y. 2009) (citing Lee v. Bankers Trust Co., 166 F.3d 540, 544 (2d Cir.1999) (“It is axiomatic that the plain meaning of a statute controls its interpretation and that judicial review must end at the statute’s unambiguous terms. Legislative history and other tools of interpretation may be relied upon only if the terms of the statute are ambiguous.”)).

The terms “publisher” and “speaker” are not ambiguous at all. Both have well-understood and defined meanings, so a court cannot try to subvert the CDA by pretending that these words are unclear.

Third, the fact that courts sometimes order websites to produce records showing who submitted a post does not support your argument in any way. A subpoena seeking records from Yelp (or any other website) does not treat Yelp as a publisher or speaker. It merely treats Yelp as a witness who has potentially discoverable evidence. Indeed, assume that Yelp removed a review such that it was no longer visible, and then after the review was gone, a plaintiff served Yelp with a subpoena asking for information about the author of the now-removed post. In that scenario, assuming the other legal requirements were met, Yelp would have no choice but to comply with the subpoena….just like any other witness. Of course, because the review in question had already been removed, Yelp was no longer acting like a speaker or publisher, but that wouldn’t excuse it from complying with its duties as a witness (assuming it still preserved the information in question).

Fourth, I don’t see any basis (even arguably) for your claim that subpoenas/orders requiring Yelp to divulge author information somehow imposes a “larger burden” than an order requiring Yelp to remove something. HUH?

An order requiring the removal of speech is essentially like the death penalty for that speech — once speech has been deleted from the Internet, it’s gone. Absent republication (like when the California courts republished all the same content they ordered Yelp to remove in the Hassell case), when speech is removed from view, it’s dead and gone. THAT is what makes removal orders far more serious and more burdensome than an anonymous author subpoena.

Look — the bottom line is that there are two types of people here: 1.) those who like the CDA and understand its value; and 2.) those who don’t like it.

If you knew about my personal experience, you’d think I would be the first person to say the CDA is a bad law. But because I have seen how rampant the abuse would be without it (i.e., people constantly threatening to sue websites for publishing truthful information), I see the CDA as a valuable law which is far better than the alternative.

The vaguely worded excerpt from Section 230 that you quote is open to sound judicial interpretation. You appear to insist that it is not. First of all, such vague wording must be read in context, and the purpose of the statute must be taken into consideration. It is clear that liability is the issue, since that is what laws on the civil side impose.

You will have to explain to me how requiring any provider of Internet services to comply with a simple order to remove DEFAMATORY material (duly adjudicated to be so, of course — and whether something was so adjudicated is certainly a worthy debate) over which the provider has sole ownership and control is “treating [that provider] as publisher or speaker.” Why? It’s hardly so different from property law, which as we know is “a bundle of sticks.” Treating an entity as publisher or speaker entails many elements, most of which cannot and should not apply to Yelp, or any other provider, for very obvious reasons. Does not mean this order can’t be enforced.

If your view were correct, how can a court reach a Yelp and order it to divulge the ORIGIN of defamatory speech, death threats against private citizens, public officials, etc., criminal conspiracies, etc.? Isn’t that treating the provider as a “publisher?” Yet courts do this all the time. Indeed, this imposes a larger burden, since it is likely to be more costly to comply, costly even in intangibles like good will, and it involves compliance EVEN BEFORE any liability for UNPROTECTED speech has been determined. They have to comply, and in fact usually have to pay to run it by a lawyer, just to allow the case to proceed with an identified defendant, who might not be liable for anything at all. That’s pretty heavy, I think (and may even be something they should resist sometimes). A fortiori and all that.

If providers have been able to get away with shirking their basic obligations after speech on their sites has been proven to be both unprotected and tortious, thanks to the vague wording of the statute, a court can put an end to that and I hope it will. Courts can do that. This is not new.

Thank you for the birther analogy (not to mention “oops, buzz fail”), a sure tipoff of the fundamental weakness of your argument. People resort to disparagement for a reason.