Critic of Lasik Surgery entitled to identify his doctors on web site

[David Farber <dave () farber net>]

Begin forwarded message:

From: Paul Levy <PLEVY () citizen org>
Date: March 12, 2007 3:58:43 PM EDT
To: dave () farber net
Subject: Critic of Lasik Surgery entitled to identify his doctors on  
web site

We won a nice victory late on Friday in a case involving a  
Pennsylvania man who claimed that he was a victim of lasik surgery,  
and put up an anti-lasik web site that chastised his doctors for what  
he claimed were their missteps in treating him.  A trial judge in  
Philadelphia avoided a claim by the doctors that the web site was  
defamatory by holding that the lasik victim, by initially taking down  
his web site in response to threats of litigation, had effectively  
"agreed" that he would never mention his doctors online.

Although we have no view about whether the criticism of these doctors  
is valid, we took the case because we were worried about the  
precedent set by the trial court's ruling.  Consumers who are  
threatened with suit over their web sites often react by taking them  
down while they try to figure out whether they can afford to defend  
themselves.  Thus, the trial court ruling threatened to create a  
means for unhappy targets of criticism to bootstrap their way into  
the suppression of dissent without any showing that the criticism was  
wrongful.  Luckily, the appeal court found no waiver of the lasik  
victim's First Amendment right to criticize his doctors.

Our local counsel Carl Hanzelik of Dilworth Paxson in Philadelphia  
was a very active participant in the appeal, which was invaluable  
because Pennsylvania's court procedures can be quite challenging....

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 3/12/2007 10:48 AM >>>
PUBLIC CITIZEN PRESS RELEASE

For Immediate  
Release:                                                             
Contact: Paul Levy (202) 588-1000
March 12,  
2007                                                                     
                 Robert Yule (202) 588-7703

Public Citizen Wins Appeal on Behalf of Lasik Surgery
Gripe Web Site Operator

Consumer Has First Amendment Right to Identify Doctors Online After  
Unsuccessful Surgery, Court Rules

            WASHINGTON, D.C. – A Pennsylvania resident left legally  
blind after lasik eye surgery has the right to identify his doctors  
on a Web site warning the public about the risks of the surgery,  
according to a decision issued late Friday by a Pennsylvania state  
court.

Public Citizen filed an appeal in June 2006, in Pennsylvania Superior  
Court in Philadelphia, to reverse an injunction against Dominic  
Morgan forbidding him from criticizing doctors Herbert Nevyas or  
Anita Nevyas-Wallace on any Internet site. The court overturned the  
injunction and found that Morgan had not waived his First Amendment  
right to update his site and include future criticism of his doctors.  
Carl Hanzelik of the law firm of Dilworth Paxson LLP in Philadelphia  
actively participated in the appeal as local counsel for Morgan.

            Morgan received unsuccessful lasik surgery in 1998 and  
created the Web site www.lasiksucks4u.com in 2002. His doctors  
threatened to sue him after he included criticism of them that they  
claimed was defamatory. Morgan removed all criticism of the doctors  
while he reviewed the libel claims and then added new material to the  
Web site several weeks later that criticized his doctors and provided  
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.

            Judge Edward J. Maier of the Court of Common Pleas in  
Philadelphia ruled in 2005 that Morgan’s removal of references to his  
doctors constituted an agreement to waive Morgan’s free speech rights  
concerning future criticism. He prohibited Morgan from mentioning the  
Nevyases’ names on www.lasiksucks4u.com or on any Internet Web site.  
Friday’s ruling overturned that decision.

             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.

“This is another victory for consumers who use the Internet to  
criticize companies,” said Paul Levy, the Public Citizen attorney who  
filed the appeal. “Free speech and consumer rights would be seriously  
endangered if the temporary removal of criticisms from a Web site  
could be construed as an ‘agreement’ not to say anything about the  
company in the future.”

To read the decision, visit http://www.citizen.org/documents/ 
nevyasmorganopinion.pdf.

To learn more about the case, visit http://www.citizen.org/litigation/ 
forms/cases/CaseDetails.cfm?cID=221.

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/.

###

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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