FC: American Boychoir School gives up, abandons frivolous suit

[Declan McCullagh <declan () well com>]

Congrats to Paul, Bill Purdy, and other folks on this list for helping to 
win a small (but important) victory against frivolous lawsuits brought to 
muzzle websites set up by critics. Here's the archive:
http://www.politechbot.com/cgi-bin/politech.cgi?name=boychoir

Speaking of adverse publicity: People using Google to search for American 
Boychoir will find this Politech thread in the first four hits, and those 
searching for American Boychoir School will see it as the second hit. 
Perhaps that counts as positive publicity, but I doubt it.

-Declan

---

Date: Wed, 30 Apr 2003 11:37:29 -0400
From: "Paul Levy" <PLEVY () citizen org>
To: <declan () well com>
Subject: American Boychoir School gives up

Responding both to the threat of a real defense and the threat of more
adverse publicity, American Boychoir School has withdrawn its lawsuit
against John Hardwicke over his web site at
www.americanboyschoirschool.com.  The lawsuit was so lacking in merit
that the mere appearance of Public Citizen on the scene, and citation of
a handful of cases, was followed by dismissal.  Although I am attaching
our press release so folks can see our organizational statement on the
subject, I want to pay special tribute to the impact of your publication
on the litigation and the reaction of your readers to that publication,
because I have no doubt that both played an important role in the
School's decision to drop the litigation - for now at least.

After you published your story, William Purdy published another site at
http://www.AmericanBoyChoir.net, whose attack on the school was more
biting because it was satirical rather than serious.  Purdy's site had
the Boychoir School worried, and apparently there were some exchanges
between Purdy and the School whereby the School sought assurances from
Purdy that he would remove the site if it stopped its litigation against
Hardwicke.  This is an excellent example of how an adverse response on
the part of the Internet community to a lawsuit that threatened free
speech values can help stop an abusive plaintiff in its tracks.

The real pity is that this defense had to be made in the first place.
I hold no illusions that adverse publicity alone can do the trick, and
groups like Public Citizen cannot handle every case like this.  If the
school had decided to pursue the litigation, it would have consumed
substantial resources on our part, and of course we have to weigh that
risk before we decide to commit to any one defendant.  And Hardwicke
unsuccessfully sought help from many lawyers to prepare for his
preliminary injunction hearing on May 1, before we decided to commit.

One point worth mentioning, though - it is hard to believe that this
case would have been filed in California, where the anti-SLAPP statute
creates a financial incentive for lawyers to represent beleaguered
speakers with the promise of attorney fee awards. And, if it had,
Hardwicke would have found willing counsel without having to come to
Washington DC.

New Jersey has, interestingly enough, been the focus of many attacks on
Internet free speech, such as the Dendrite case, the Donato case
involving the Eye on Emerson, and now this case.  We may only hope that
New Jersey will consider enacting a SLAPP statute to provide more
protection of free speech so that these cases will not be brought in the
first place.

For Immediate Release:     Contact: Paul Alan Levy (202) 588-1000
April 30, 2003        Shannon Little (202) 588-7742

 Public Citizen Forces Withdrawal of Suit
 Against Online Critic of Sexual Abuse at New Jersey Choir School

WASHINGTON, D.C. - Following notice that Public Citizen would defend
the free speech right of an alumnus to use the Internet to publicize
sexual abuse of students and that the school's response to the abuse,
the American Boychoir School in Princeton, N.J., today dropped its suit
seeking to silence the former student.

White Hall, Md., resident John Hardwicke suffered sexual abuse while a
student at American Boychoir School in 1969 and 1970. After his lawsuit
against the school was dismissed on grounds of immunity, Hardwicke
created a Web site at www.americanboyschoir.com to detail sexual abuse
at the school and decry its failure to respond to the problem.
Hardwicke used a recent school directory to send e-mail to the parents
of all current students urging them to visit his Web site.

The school sued him in Superior Court in Mercer County, N.J., claiming
that the use of the school'?s name in the site's domain name and its
content might confuse Internet viewers. The school also said that the
colors on his Web site were too similar to the school's official Web
site and that Hardwicke's site and e-mail would hurt its reputation and
cause students to withdraw from the school.

The school also claimed that Hardwicke violated a New Jersey law by
posting an excerpt from a letter about the school from the New Jersey
Division of Youth and Family Services. Before Hardwicke could obtain a
lawyer to defend himself, the trial judge granted a temporary
restraining order prohibiting posting the state agency's letter and set
a hearing on a preliminary injunction for May 1.

Public Citizen, a nonprofit public interest organization that has a
history of defending free speech on the Internet, notified the school's
lawyer that it would represent Hardwicke at the hearing. Public Citizen
attorney Paul Alan Levy argued that Hardwicke's Web site is protected by
the First Amendment and does not violate trademark law, and he showed
the school's lawyer cases establishing First Amendment protections for
everything that Hardwicke had done. Levy also explained that Hardwicke
could not be sued in New Jersey for a Web site that he had created in
Maryland. Within days of Public Citizen's becoming involved, the school
dismissed the lawsuit unconditionally.

 "Lawsuits should not be used as intimidation tactics to chill free
speech on the Internet," Levy said. "The American Boychoir School
recognized its error in suing and dropped the lawsuit quickly."
###
Public Citizen is a nonprofit consumer advocacy organization based in
Washington, D.C. For more information, please visit www.citizen.org.

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




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