Arguing against pseudo-waiver of free speech rights

[David Farber <dave () farber net>]

Begin forwarded message:

From: Paul Levy <plevy () citizen org>
Date: June 27, 2006 2:49:43 PM EDT
To: dave () farber net
Subject: Arguing against pseudo-waiver of free speech rights

We have filed an appeal in a defamation case that presents a growing  
national problem.

Very often, companies or individuals who are criticized online dash  
off a threat of libel or other litigation, and it is not uncommon,  
when critics receive such letters, that the first thing they hear  
from a lawyer is, "take this down from the web while I figure out  
whether there is a serious threat of legal liability here."  There  
have been a few judges now who have interpreted the removal of a web  
site in response to a threat of litigation as tantamount to entering  
a contract not to repost the criticisms.

In the case of Nevyas v. Morgan, we are representing a Philadelphia  
area man who critiicized his lasik surgeons after surgery that left  
him legally blind, and has been enjoined from even mentioning his  
doctors' names on his anti-lasik-surgery web site, without any  
finding that he made false statements, on this sort of "contract by  
removal" theory.  We argue that there are strict standards for  
finding a waiver of the right to speak freely and that those  
standards have not been met, and that it is bad public policy to find  
such agreements too readily.

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation

> > > Robert Yule 6/27/2006 11:38 AM >>>
PUBLIC CITIZEN PRESS RELEASE

For Immediate Release:          Contact: Paul Levy (202) 588-
June 27, 2006                                          Robert Yule (202) 588-7703

Public Citizen Appeals on Behalf of Gripe Web Site Operator to  
Protect Internet Free Speech

Court Ruling Endangers First Amendment Rights of Consumers Who Use  
the Internet to Complain About Companies

WASHINGTON, D.C. - A Pennsylvania resident left legally blind by  
lasik eye surgery should be allowed to identify his doctors on a Web  
site warning the public about the risks of the surgery, Public  
Citizen said in an appeal submitted today on his behalf in a  
Pennsylvania state court.

The appeal, which was filed in Pennsylvania Superior Court in  
Philadelphia, seeks to reverse an injunction against Dominic Morgan  
forbidding him from criticizing doctors Herbert Nevyas or Anita  
Nevyas-Wallace on any Internet Web site.

Morgan received unsuccessful lasik surgery in 1998 and created the  
Web site www.lasiksucks4u.com in 2002. After he included criticism of  
his doctors on the site, they threatened to sue him unless he  
eliminated certain statements that they claimed were defamatory.   
Morgan removed all of the criticisms of the doctors while he reviewed  
the libel claims and decided what he could legally post. However,  
when he added new material criticizing the doctors to the Web site  
several weeks later along with documentary support of his claims, the  
doctors sued claiming that his initial removal of the criticisms to  
avoid suit constituted an agreement never to mention their names on  
the Internet. The doctors claimed that because they had "agreed" not  
to sue Morgan if he removed the criticisms, his temporary removal of  
the criticisms constituted his acceptance of such an "agreement,"  
which was binding on Morgan in perpetuity.

Companies routinely threaten consumers and Internet hosting companies  
with libel, defamation or trademark infringement litigation in  
response to legitimate criticism. With a short deadline for  
compliance, consumers are often pressured into removing criticism  
from Web sites and censoring their speech to avoid costly and time- 
consuming litigation.

In his correspondence with his doctors' lawyer, Morgan did not  
acknowledge that his claims were defamatory, nor did he promise to  
refrain from mentioning the doctors in the future. In fact, he sent a  
letter reserving the right to add new information about the doctors  
on the site.
        
Judge Edward J. Maier of the Court of Common Pleas in Philadelphia  
ruled that Morgan's initial removal of references to his doctors on  
the original site, as well as subsequent correspondence between  
Morgan, his lawyer and the doctors' lawyer, constituted an agreement  
to waive Morgan's free speech rights concerning future criticism of  
his doctors. He then enjoined Morgan from mentioning the Nevyases'  
names on www.lasiksucks4u.com or on any Internet Web site.

The appeal argues that as a matter of First Amendment law, the  
court's decision wrongly imposes a prior restraint on Morgan's speech  
that ignores the established principle that purported waivers of free  
speech must be found to have been clear and knowingly made and  
narrowly construed. As a matter of contract law, the appeal cites the  
fact that Morgan said nothing that could be construed as an agreement  
or a waiver of his speech rights. Not only did he say nothing about  
refraining from future criticism of his doctors, he expressly stated  
his intention and reserved his right to do just that.

"This case typifies a common problem for consumers who use the  
Internet to criticize companies," said Paul Levy, the Public Citizen  
attorney who filed the appeal. "Consumers who receive threats from  
companies often react by taking down the criticisms while they  
evaluate their chances of defending a lawsuit. If the temporary  
removal of criticisms from a Web site can be construed as an  
'agreement' not to say anything about the company in the future, this  
will have a chilling effect on Internet free speech and consumer  
rights."

Carl Hanzelik of the law firm of Dilworth Paxson LLP in Philadelphia  
serves as local counsel for Morgan.

Public Citizen has a record of defending the First Amendment rights  
of Internet users. To learn more, visit http://www.citizen.org/ 
litigation/briefs/IntFreeSpch/.

To view the appeal, visit http://www.citizen.org/documents/Morgan.pdf.

###

Public Citizen is a national, nonprofit consumer advocacy  
organization based in Washington, D.C. For more information, please  
visit www.citizen.org.







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