by Paul Alan Levy
Ever since Eugene Volokh and I started writing last year about the phenomenon of “fake defamation litigation” — lawsuits filed to suppress online criticism while ensuring that the person whose speech is to be suppressed never has a chance to persuade the court not to issue an injunction — the greatest attention has been paid to cases in which a complaint is filed along with a consent order: the supposed defendant admits having made false statements and agrees to injunctive relief. But the trick is that the defendant is fictional and the signature of the defendant is a forgery. That was the main model employed by Richart Ruddie in such cases as Patel v. Chan and Smith v. Garcia. In some of these cases, the suits were filed pro se, with the signature of the plaintiff forged as well as that of the defendant; in others, such as Smith v. Levin, the presence of a corporate plaintiff made pro se filing impossible, so Ruddie had to recruit a lawyer who was either clueless and desperate for business, or venal and desperate for business, to file a fake consent decree. This fraudulent scheme was so egregious that Ruddie is facing a possible federal prosecution; his agreement to a humiliating and expensive settlement in Smith v. Garcia was hastened by his effort to gain lenient treatment from the prosecutor.
Today’s post, however, concerns a different variant of fake litigation, in which a suit is filed by lawyers against Doe defendants, but the lawyers scheme, by various forms of deception, to ensure that the actual Doe defendants — that is, the alleged defamers whose speech is to be suppressed – never receive notice of the pendency of the action. After all, fair notice could lead to the filing of a brief telling the court why no injunction is justified. Moreover, the very litigation might produce publicity about the criticisms that the plaintiff is trying to suppress, bringing the Streisand effect into play. This sort of lawsuit was the original tack taken by Ruddie himself, when he was first conniving with Rescue One Financial to suppress criticisms on the Myvesta web site; he secured the services of a Florida law firm to sue Does who, according to the complaint, could not be identified and so had to be served by publication in a newspaper they were sure not to see. Then a default judgment was obtained against them. (This brief, filed on my behalf by Marc Randazza, explains the fraudulent nature of the filing). It was only when Google declined to remove the links identified in the default judgment injunction from its database that Ruddie moved on to forging signatures on court papers.
Megan Welter’s Very Bad Day
The case that we just entered involves Megan Welter, a young woman who achieved a degree of publicity success in the summer of 2013 with the story of how an Iraq war veteran had become a cheerleader for the Arizona Cardinals football team. A few days later, she learned how fickle the media can be: it got its hands on a less flattering situation: in a fit of jealous rage at her boyfriend’s communication with one of his exes, Welter called the police claiming that he was abusing her physically. But when the police arrived, the boyfriend persuaded them, through cellphone video as well as Welter’s own on-the-scene admissions, that it was Welter herself who was the assailant. The upshot was that Welter was arrested and charged, and that story, based in part on the boyfriend’s statements to the police, received national coverage in the print and broadcast media, as well as on various sports-related blogs and web sites. Many of these sites carried bodycam video from the responding police, plus the cell phone video that the boyfriend provided to the police; a few even linked to a detailed police report describing Welter’s own self-incriminating statements.
The Litigation Response: A Right to Be Forgotten?
About three years later, Megan Welter hired a local law firm to try to get all of these stories suppressed. Not surprisingly, she turned to the firm of Kelly/Warner Internet Law, an outfit that has tried to be a major player in the field of online reputation management or, as the firm’s web site put it, “Online Reputation Fixers.” It is not at all clear to me that the lawyers at the firm understand the unsavory connotations of the term “fixer.”
The lawsuit was filed against forty Doe defendants – ten Doe individuals and thirty Doe entities of various form. Attached to the complaint was a listing of some 98 web sites and 9 YouTube videos that allegedly contained defamatory statements about Welter; the complaint sought both damages and injunctive relief for the publication of this material. The complaint treated the various publishers of these online stories as anonymous defendants. With the complaint was filed a proposed “stipulation” for the entry of a permanent injunction. The proposed stipulation included a signature line for Ryan McMahon, Welter’s boyfriend on the day of the controversial incident, and a paragraph in which McMahon purported to “admit” that the statements about Welter attributed to him in the various news stories were false. Under the terms of the stipulated injunction, McMahon was to be enjoined from saying anything bad about Welter, and Welter was to be enjoined from saying anything bad about McMahon. So far, so good – two parties can certainly agree to settle a lawsuit by entering a mutual non-disparagement pact.
Extending Injunctive Relief Beyond Ryan McMahon
But the rest of the “agreed” injunction was problematic. Welter’s objective, after all, was not to get her boyfriend to stop criticizing her – so far as I can tell, she and McMahon had already gone their separate ways. Indeed, even at the time of the controversy, his published reaction to what Welter had done to him was more pity than anger; he expressed the hope that she would not suffer unduly for her misconduct. Welter’s real aim here was to suppress public access to past criticisms; thus, the remainder of the order was directed to that objective.
The way to accomplish this was through a tricky manipulation of the well-established principle that injunctive relief extends to the “agents” of an enjoined defendant and, indeed, to others who connive with the defendant to propagate his wrongdoing. The stipulated injunction included several prohibitions of publication by “defendant’s” agents — in context, the “defendant” was plainly McMahon – but it defined the term “agents” as including anybody whose publication was “enabling” the publication of the 98 online articles based in part on McMahon's contemporaneous statements, as well as nine YouTube videos (most of which were copies of TV stories) identified in the complaint. Moreover, McMahon’s admission included the proposition that “all or substantially all of the statements made in URL’s are false and defamatory.” And on that basis, all of the defendants responsible for those online articles, as well as the “agents” as broadly defined, were commanded to take them down. The defendants and their agents were also forbidden from making other negative statements about the plaintiff or, indeed, about the defendant or about each other. And, just in case they did not comply with these orders, the order called for Google and other search engines to take the URL’s identified in the order out of its database so that the content would not be searchable (here, again, the basic element of the fraudulent Richart Ruddie orders).
No notice of this proposed order was given to any of the news companies and others publishing the articles. The apparent basis for withholding notice was that the publishers were Does. But there was no basis for suing them as Does. It’s not hard to find the service addresses of broadcasters like ABC News or CBS News or Fox Sports, or of such print publications as the New York Post, New York Daily News, Sports Illustrated and USA Today, or of the various local stations and newspapers as well as online-only publications whose stories were to be suppressed. Kelly/Warner could easily have identified the publishers and named them as defendants — but had the complaint done so, and had the complaint been served, Kelly/Warner knew very well that the publishers would oppose the injunction and, indeed, would likely seek sanctions for frivolous litigation. And identifying the defendants and serving them with process would likely have invoked the Streisand Effect, leading to further coverage reminding the world of what Megan Welter did back in 2013. So, instead of giving the media fair notice of their legal efforts, the lawyers at Kelly/Warner sued them as Does and gave them no notice.
This proposed stipulated injunction was filed along with the complaint. At some later date – it is not clear when – a signed version of the order was presented to the court bearing McMahon’s signature, although, oddly, the address listed for McMahon was Kelly/Warner’s own office address. And the date of the purported signature was May 19, 2016 – the day before the complaint was filed. Why, then, was Ryan McMahon not listed in the complaint as a defendant? Considering other activity by and on behalf of the Kelly/Warner firm about which I have learned over the years, and considering as well the firm’s past links with Richart Ruddie, I had to consider the possibility that McMahon’s signature had been forged. In fact, when I was in the course of drafting the papers, I saw some communications by McMahon in which he denied having placed his signature on the stipulation.
In the end, though, it became apparent that he willingly signed the stipulation, although McMahon continues to make statements that suggest that he could have been misled by the Kelly/Warner lawyers about the legal significance of what he was signing, and about just what false statements he was admitting to have made. I tried to get to the bottom of this issue by communicating with the Kelly/Warner firm; one of its members assured me that McMahon knew exactly what he was signing, because, the lawyer told me, he had spent two hours speaking with McMahon. He also represented that he had a chain of some 20 emails exchanged with McMahon that would, he said, bear out his representation that McMahon knew exactly what he was signing. But the lawyer refused to produce the email chain, claiming that Arizona’s code of legal ethics precluded such disclosure; I took the refusal as implying that the documents would not have supported his representations.
Despite all of the obvious questions that were apparent on the face of these papers, Kelly/Warner got what it wanted – Judge Patricia Starr signed the order on June 29, 2016.
Our Motion to Quash
Late yesterday we filed a motion to vacate the order. Our client is Avvo, because one of its web pages was among the 98 articles subjected to the injunction. That page was posted by one of Avvo’s users, an Arizona criminal defense lawyer named Jeremy Geigle, who used the news reports about the Welter/McMahon controversy as a news hook for providing a simple description of Arizona’s penal statute barring disorderly conduct (one of the charges brought against Megan Welter). The article mentioned Welter but did not include any statements ascribed to McMahon; the facts mentioned in the article were from the cell phone video as well as a characterization of what the police found on the scene. But Welter’s lawyers were so brazen — so obviously confident that they could get what they asked for from a state court judge — that they included the Geigle article in their enumeration of pages to be suppressed, and thus made clear that Avvo is one of the Doe defendants or “agents” that the Court was enjoining from saying anything negative about Welter or any of her agents, in the future.
Our brief makes a variety of arguments – (1) that the defamation claim was brought long after the statute of limitations expired, (2) that a court can’t enjoin third parties without evidence of falsity not to speak of actual malice, even under state law; (3) that the lack of evidence made the injunction infirm under the First Amendment’s limitations on libel liability not to speak of the doctrine forbidding prior restraints; (4) that Avvo in particular was immune from being enjoined because it was only the host of the Geigle article and hence protected by section 230; and (5) the the lack of notice to Avvo and the other Doe site owners was itself a Due Process and First Amendment violation. I could understand a state court trial judge not thinking about section 230 – Kelly/Warner does not have that excuse — but how she could have missed the statute of limitations and other basic issues is beyond me.
Since we filed the papers late yesterday, I received a recording of the telephonic hearing. That recording makes Judge Starr look even worse. The only reason she called the hearing, she said, was that she was worried that the terms of the stipulation could keep the case on her docket longer than it had to be; she wanted to know whether that problem could be fixed. And she wanted assurance that entry of the order would be the end of the case. She evinced no concern about the free speech rights of the absent defendants.
McMahon was on the telephone, and he said, toward the end of the very short hearing, “Even though she did these things, I really believe that everybody deserves a fresh start. And if it ever happened to me, I would want someone to do this for myself. So I am okay with that. I guess that I hope she learns her lesson, and she takes care of it and doesn't do it again.” So this state court judge had no compunction about issuing a sweeping injunction against nearly a hundred absent defendants even thought the individual defendant, appearing without counsel before her, contradicted the “admission” in the stipulation that the URL’s were entirely or mostly false by saying, “she did these things.”
The Court Fell Short of Its Responsibilities in This Case
We count on our trial judges to stand up for absent parties and especially for the First Amendment. We can condemn Kelly/Warner for the ethical violation of failing to disclose pertinent authority from a controlling jurisdiction; those duties are especially significant when the lawyer is appearing in an ex parte adjudication. And Kelly/Warner’s procedural shenanigans deserve especial condemnation. But in the final analysis some of these problems were so obvious that Judge Starr should have caught them. The institutions that offer training to state (and federal) trial judges have work to do!
When similar lapses were called to the attention of Chief Judge Smith in Smith v. Garcia, he forthrightly acknowledged his oversights, expressing chagrin at having been duped, and moved promptly to correct them. We can only hope that Judge Starr will do the same.