Amicus Curiae Brief — Tory v. Cochran

OFFICE OF THE CLERK

5n The }

Supreme Court of the Anited States

+

ULYSSES TORY AND RUTH CRAFT,

Petitioners,

vs.

JOHNNIE L. COCHRAN, JR..,

Respondent.

+

On Writ Of Certiorari To The

Court Of Appeal Of California,

Second Appellate District, Division One

+

BRIEF AMICUS CURIAE OF

MICHELANGELO DELFINO AND

MARY E. DAY IN SUPPORT OF PETITIONERS

ULYSSES TORY AND RUTH CRAFT

¢

JON B. EISENBERG

JEREMY B. ROSEN*

Horvitz & LEvy LLP

15760 Ventura Boulevard, 18th Floor

Encino, California 91436-3000

(818) 995-0800 ¢ FAX (818) 995-3157

*Counsel of Record

Counsel for Artici Curiae

Michelangelo Delfino and Mary E. Day

COCKLE LAW BRIEF PRINTING CO. (600) 225-6064

OR CALL COLLECT (4092) 342-2831

ne

TABLE OF CONTENTS

Page

BRIEF AMICUS CURIAE OF MICHELANGELO

DELFINO AND MARY E. DAY............:ccssccsceeseeeeeeees

THIS COURT SHOULD CLARIFY THE PROTEC-

TION AFFORDED TO RHETORICAL HYPER-

BOLE AND HOLD THAT PETITIONERS’ SPEECH

IS PROTECTED BY THE FIRST AMENDMENT...

A.

The Court of Appeal should never have

reached the injunction question because peti-

tioners’ speech is protected rhetorical hyper-

BOUIN .-nvinscisvucsinteicinuieasinebuhasniebeaeeheusalainanisitiataaabicnds

This Court should elucidate what constitutes

rhetorical hyperbole in order to ensure greater

breathing space for free expression...................

This case is part of a wave of litigation filed by

powerful figures in an effort to silence uncon-

ventional social critics who lack the resources

This Court should protect free expression from

the danger posed by defamation lawsuits tar-

ao — -

11

13

15

ij

TABLE OF AUTHORITIES

Page

CASES

Abrams v. United States, 250 U.S. 616 (1919) ................. 16

Allen v. Ali, 435 N.E.2d 167 (Ill. App. Ct. 1982) ............0.... 8

American Civil Liberties Union v. Reno, 929

BF. Bam. SBE GBD. Fe. BODE wnccecccccscevcccscccssccensntscososessee 14

Bose Corp. v. Consumers Union of U.S., Inc., 466

CE; Se Ce ccc kchnescisiacin cnnsaliddibadiinlin battlenet 5

Bridges v. California, 314 U.S. 252 (1941)... 16

Cohen v. California, 403 U.S. 15 (1971)...................... 10, 16

Coles v. Washington Free Weekly, Inc., 881 F. Supp.

DS RRR ee eS es Ee ae 7

ComputerXpress, Inc. v. Jackson, 113 Cal. Rptr. 2d

Se GE, Fi Fe ehticertteiniiaictnieiintcitstienpisthecitianmineniit 14

FCC v. Pacifica Foundation, 438 U.S. 726 (1978)............. 16

Ferlauto v. Hamsher, 88 Cal. Rptr. 2d 843 (Ct. App.

RETR S as SSRN CNSR e At Not Wor ae ON BeAr ARAN = Po Serer 7

Global Telemedia International, Inc. v. Doe 1,132 ~

F. Supp. 2d 1261 (C.D. Cal. 2001) ............ ec eeseeseeesseeees 15

Greenbelt Cooperative Publishing Ass’n v. Bresler,

Se, Be cicckcenbtciainiacabninnbinitsstinideiaigth cdetetiat ciate 6

Guarneri v. Korea News, Inc., 214 A.D.2d 649 (N.Y.

Bea: TRB BEF castevennhssienismitatichsitthictideieniiiiteiinimatiiiines 8

Hopewell v. Vitullo, 701 N.E.2d 99 (Ill. App. Ct.

UID csiesiehstesihagihesehsccoapi ibesaieane aiimadtaiatacninel ioe i cola als 7

Horsley v. Feldt, 304 F.3d 1125 (11th Cir. 2002)................. 9

TABLE OF AUTHORITIES -— Continued

Page

Hustler Magazine v. Falwell, 485 U.S. 46 (1988)............... 7

James v. San Jose Mercury News, Inc., 20 Cal.

BRE. TO SO CUE. BBD, BGP as cenccnccccsccccsccvcsscsncesacsnszesecscee 7

Kirsch v. Jones, 464 S.E.2d 4 (Ga. App. 1995).................04. 7

Lewis v. Time Inc., 710 F.2d 549 (9th Cir. 1983)................. 7

Masses Publishing Co. v. Patten, 244 F. 535

I called datas 15

Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)........ 5,6

Old Dominion Branch No. 496, National Ass’n of

Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264

RASS TE RRS See Hn OOS ae Pe EE SEDO 6

Partington v. Bugliosi, 56 F.3d 1147 (9th Cir. 1995)........... 7

Quilici v. Second Amendment Foundation, 769 F.2d

Ey II: MEU cikhichcibsahitinadindlbaeninsiahidiesanabpabedionieenes 7

Reno v. American Civil Liberties Union, 521 U.S. —

ee E iain karin chedsestinddeiinetcecesintcihibsietiaheslavededeeblanipebpsiaeales 14

Rocker Management LLC v. John Does 1 Through

20, No. MISC 03-003 3 CRB, 2003 U.S. Dist.

LEXIS 16277 (N.D. Cal. May 29, 20038)...................004. 15

SPX Corp. v. Doe, 253 F. Supp. 2d 974 (N.D. Ohio

TIE disivctbiisiliciinucntsnianes cekakithccihesnidplasdshiidateneieseteadideedadiosepailh 14

Sullivan v. Conway, 157 F.3d 1092 (7th Cir. 1998)............. 7

Underwager v. Channel 9 Australia, 69 F.3d 361

Ry GI ai icccttntiinitierstskinkncihitinthatunileaibiapasuapanasintiapiaind~aeii 9

U.S. v. Playboy Entertainment Group, Inc., 529

Rai, GORE GIIITED neinssitinsenneciingnatiitedunipiiedsinislneGiniamicihaebsdiciend 10

iv

TABLE OF AUTHORITIES -— Continued

Page

MISCELLANEOUS

Eric Scott Fulcher, Rhetorical Hyperbole and the

Reasonable Person Standard: Drawing the Line

Between Figurative Expression and Factual

Defamation, 38 Ga. L. Rev. 717 (2004).............0006 8, 9, 10

Michael Hadley, The Gertz Doctrine and Internet

Defamation, 84 Va. L. Rev. 477 (1998) .........ccccccceeeseeeees 13

Robert Kline, Freedom of Speech on the Electronic

Village Green: Applying the First Amendment

Lessons of Cable Television to the Internet, 6 Cor-

nell J.L. & Pub. Pol’y 23 (1996).................ccccccccssesvseseee 14

Lyrissa Barnett Lidsky, Silencing John Doe: Defa-

mation & Discourse in Cyberspace, 49 Duke LJ.

BE CD ssc pieccscccs cn sscisninceiperincnscnaiinaeetinmnnited 11, 12, 14

April Mara Major, Norm Origin and Development

In Cyberspace: Models of Cybernorm Evolution,

FO Wa, Gi. Re, Cp Gc cercsccerencticsevienmntbectitiankeminns 12

Merrian-Webster’s Collegiate Dictionary (10th ed.

GED. ccsisiviivvicseeviiinsnnsiecintainiactsicistncialadeistuitisiiviapaaaiaiianieyis 12

The Politiburo Diktat: Shrill Meter, at http://ace

pilots.com/mt/archives/001343.html (Last visited

POU Bi, FI vseveteiscdtkccustniadiininnssmmanidesbcendiigaiahibabiee 4

Jeffrey Rosen, The Privatization of our Public

Discourse: Essay Privacy in Public Places, 12

Cardozo Stud. L. & Lit. 167 (2000) .............ccceeeeeeeeeeeees 10

Bruce W. Sanford & Michael J. Lorenger, Teaching

An Old Dog New Tricks: The First Amendment In

An Online World, 28 Conn. L. Rev. 1137 (1996)............ 12

——

TABLE OF AUTHORITIES — Continued

Page

Thomas W. Temple, Marching Bandwidth: Advanc-

ing Information Exchange At Stability’s Expense,

6 J. Contemp. Legal Issues 409 (1995) .....................00 12

K. Weng, Type No Evil: The Proper Latitude Of

Public Educational Institutions In Restricting

Expressions Of Their Students On the Internet,

20 Hastings Comm. & Ent. L.J. 751 (1998)............ 12, 13

1

BRIEF AMICUS CURIAE OF

MICHELANGELO DELFINO AND MARY E. DAY

INTEREST OF AMICI CURIAE'’

Amici Michelangelo Delfino and Mary E. Day are the

defendants in Varian Medical Systems, Inc. v. Delfino (Cal.

S. Ct. No. S121400), currently pending before the Califor-

nia Supreme Court and set for oral argument on December

7, 2004. Varian, a Fortune 500 company, sued Delfino and

Day, former Varian research scientists, for defamation and

other torts arising from thousands of colorful, offensive

and hyperbolic statements they made over the Internet

about Varian and its senior executives. Delfino’s and Day’s

Internet statements expressed displeasure with Varian’s

corporate management and tactics Varian has employed in

an unsuccessful effort to silence them. Delfino and Day

lost at trial and were ordered to pay $775,000 in damages.

The trial court also issued a comprehensive injunction

barring Delfino and Day from making future statements

about Varian and its employees. The California Court of

Appeal affirmed the damages award but set aside most of

the injunction as an unconstitutional prior restraint. The

California Supreme Court granted review, thus vacating

the Court of Appeal’s decision, in order to determine a

narrow jurisdictional question — whether the trial court

lacked jurisdiction to conduct the trial. If Delfino and Day

prevail in the California Supreme Court, the case will be

returned to the trial court for a new trial, where Varian

might again seek injunctive relief. Accordingly, Delfino and

* No counsel for a party authored this brief in whole or in part, nor

did any person or entity, other than amici or their counsel, make a

monetary contribution to the preparation or submission of this brief.

2

Day have an interest in the outcome of the Cochran case

as it will shape the law governing the re-trial of their case.

Delfino and Day are also interested in the outcome

here because their experience as victims of a lawsuit

designed to silence them has pushed them into becoming

full-time free speech advocates. They came to this crusade

in middle-age. They had spent their professional careers

as research scientists in Northern California, and had

fully expected to continue those careers. They are named

inventors on twenty-five United States patents and

between them have written more than 100 scientific

papers. After they left Varian, they formed their own

technology start-up company, MoBeta Inc. However, since

Varian sued them in 1999, their lives ‘have profoundly

changed. They have set aside their life’s scientific work in

order to fight for their right and the right of others to

criticize publically-traded corporations over the Internet

and elsewhere.

Varian had expected Delfino and Day to act like

countless others who have faced a similar situation and

simply stopped speaking out once they saw what it would

take to fight for their rights. That a major corporation

would spend millions of dollars and hire three high-priced

San Francisco Bay Area law firms to pursue them has

served only to make Delfino and Day more determined to

ensure that similar abuse is not inflicted on others. In

fighting back, they depleted their entire life savings and

are now indigent.

As part of their fight. Delfino and Day created their

own website — http://www.geocities.com/mobeta_inc/slapp/

slapp.htm] — as a forum to air their free speech message.

3

They self-published a book — Be Careful Who You SLAPP =

which chronicled their ordeal. More than 850 libraries

around the world have purchased the book. Some 78

articles and radio stories addressing the Varian litigation

have been published statewide and nationally — including

on National Public Radio and by the Washington Post, the

Wall Street Journal, the Associated Press, USA Today, the

San Jose Mercury News, Silicon Valley's Weekly Metro,

Bloomberg Newswire, and the Investors Business Journal.

The case has also been chronicled in law review articles

and other legal publications.

Delfino and Day have learned that it has become com-

monplace in today’s society for powerful forces to attempt to

silence those who do not have such deep pockets. With the

present case, this Court can help ensure that others will not

suffer the same fate as Delfino, Day, Tory and Craft.

¢

SUMMARY OF ARGUMENT

Petitioners Ulysses Tory and Ruth Craft have been

barred by court order from making any statement about

respondent Johnnie Cochran in any forum at any time.

Petitioners’ briefs will demonstrate that such an injunc-

tion constitutes an unconstitutional prior restraint. Amici

Delfino and Day agree. This amicus curiae brief, however,

addresses another fundamental problem with the Court of

Appeal’s opinion — the foundational holding that petition-

ers’ hyperbolic statements made during their protests

outside of Cochran’s office constitute actionable defama-

tion. That holding is dramatic evidence that this Court's

guidance on the constitutional protection of rhetorical

hyperbole is necessary to provide adequate breathing

space for social critics who do not conform to majoritarian

sentiments.

The need for clarity in the protection of rhetorical

hyperbole has taken on greater significance with the

advent of a new medium of communication — the Internet

— which has become a powerful tool in democratizing both

the content of and access to information. In the past,

people with little or no money had difficulty finding a

broad audience. Their options were to hand out mimeo-

graphed handbills on a street corner or to-speak out to a

few passerbys at the local “village green.” Tory and Craft

pursued such a strategy in their small protests against

Cochran. Now such persons can reach millions by posting

commentary on the Internet, which can be readily accessed

by anyone on a computer. The Internet has provided a

platform for all to speak out on issues of concern to them.

The Internet has also spawned a new means of com-

munication — the “flame war” — where posters (often

anonymous) use vitriolic language and engage in ad

hominem attacks. For instance, during this past presiden-

tial election campaign, one or both of the major candidates

were described on the Internet as a “liar”; “war criminal”;

“murderer”; “idiot”; “moron”; “douchebag”; “asshole”; and

similar to “Hitler.” E.g., The Politburo Diktat: Shrill Meter,

at http://acepilots.com/mt/archives/001343.html (last visited

Nov. 8, 2004). While many deplore this lack of civility, the

question for this Court is whether uncivil discourse should

be chilled by defamation lawsuits or whether freedom of

speech demands that unconventional and unpopular

modes of expression are tolerated.

There has also been an increase in lawsu:ts filed by

corporations and others who have become subjects of

5

widespread criticism as a result of the Internet's rise.

Scores of lawsuits are now being filed by large corpora-

tions like Varian against individuals like Delfino and Day.

The goal of these lawsuits — like the goal of Cochran’s

lawsuit in this case — is to silence the speaker by threaten-

ing a crushing legal battle that the individuals cannot

afford. Greater clarity on the protections afforded to

rhetorical hyperbole would make plain that such lawsuits

are disfavored.

¢

LEGAL ARGUMENT

THIS COURT SHOULD CLARIFY THE PROTEC-

TION AFFORDED TO RHETORICAL HYPERBOLE

AND HOLD THAT PETITIONERS’ SPEECH IS

PROTECTED BY THE FIRST AMENDMENT.

A. The Court of Appeal should never have reached

the injunction question because petitioners’

speech is protected rhetorical hyperbole.

In defamation cases, appellate courts must conduct

“an independent review of the record both to be sure that

the speech in question actually falls within the unpro-

tected category and to confine the perimeters of any

unprotected category within acceptably narrow limits in

an effort to ensure that protected expression will not be

inhibited.” Bose Corp. v. Consumers Union of U.S., Inc.,

466 U.S. 485, 503-05 (1984).

A statement is not defamatory if it “cannot ‘reasonably

[be] interpreted as stating actual facts’ about an individ-

ual.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 20

(1990). Thus, a statement that is “no more than rhetorical

hyperbole, a vigorous epithet” is constitutionally protected

6

expression and cannot constitute defamation even if the

statement, when reviewed out of context, might otherwise

be an actionable statement of fact. E.g., Greenbelt Coop.

Publ’g Ass'n v. Bresler, 398 U.S. 6, 14 (1970). “This pro-

vides assurance that public debate will not suffer for lack

of ‘imaginative expression’ or the ‘rhetorical hyperbole’

which has traditionally added much to the discourse of our

Nation.” Milkovich, 497 U.S. at 20.

Notwithstanding the above principles, the California

Court of Appeal in this case found that the statements

Tory and Craft placed on their placards and shouted

during their picketing “‘crossed the line separating pro-

tected rhetorical hyperbole from unprotected fraudulent

misrepresentation of fact.’” (Joint Appendix at 59.) Thus,

the Court of Appeal found falsity rather than mere rhe-

torical hyperbole in statements such as “Attorney Johnnie

Cochran I Know What You, the Country and the city did to

my case”; “Hey Johnnie How Much Did They Pay $$ You to

F__ k Me?”; and “Johnnie is a crook, a liar and a thief.

Can a lawyer go to heaven? Luke 11:46.” (Joint Appendix

at 11.)

The Court of Appeal was wrong. The average audience

at a demonstration involving placard-wielding protesters

would not take the above to be provably true statements of

fact, but would recognize that, in the context of a noisy

protest featuring loose and colorful language, such state-

ments are just rhetorical hyperbole. See, e.g., Old Dominion

Branch No. 496, Nat. Ass’n of Letter Carriers, AFL-CIO v.

Austin, 418 U.S. 264, 283-284 (1974) (use by union of “in-

temperate, abusive, or insulting language” during a labor

dispute is protected speech because “‘to use loose language

or undefined slogans that are part of the conventional give-

and-take in our economic and political controversies’” does

not convey provably true statements of fact); Hustler

Magazine v. Falwell, 485 U.S. 46, 57 (1988) (statement

that Falwell had sex with his mother was a parody which

“could not ‘reasonably be understood as describing actual

facts about [Falwell] or actual events in which [he] par-

ticipated’ ”).

Applying these principles, numerous other courts

have found harsh statements directed at lawyers’ qualifi-

cations and competence to be nondefamatory. See, e.g.,

Partington v. Bugliosi, 56 F.3d 1147, 1150-58 (9th Cir.

1995) (“an incompetent attorney”); Sullivan v. Conway,

157 F.3d 1092, 1097 (7th Cir. 1998) (plaintiff “is a very

poor lawyer”); Quilici v. Second Amendment Found., 769

F.2d 414, 418 (7th Cir. 1985) (“plaintiff’s presentation

before this court was poor, and may have ‘sunk’ the appeal;

. plaintiff’s presentation was ‘rambling and often

pointless’”); Lewis v. Time Inc., 710 F.2d 549, 556 (9th Cir.

1983) (plaintiff is a “‘shady practitioner’”); Coles v. Wash-

ington Free Weekly, Inc., 881 F. Supp. 26, 28 (D.D.C. 1995)

(plaintiff is “an incompetent, overpaid lawyer who re-

quired substantial assistance from his client”); Ferlauto v.

Hamsher, 88 Cal. Rptr. 2d 843, 851 (Ct. App. 1999) (plain-

tiff’s suit was “‘stupid,’ laughed at,’ ‘a joke,’ ‘spurious,’ and

‘frivolous’” and plaintiff was a “‘Kmart Johnnie Cochran,”

a “‘creepazoid attorney,’” and a “‘loser wannabe lawyer’ ”);

James v. San Jose Mercury New’s, Inc., 20 Cal. Rptr. 2d

890, 896 (Ct. App. 1993) (plaintiff “is a member of a class

of lawyers that engages in, and his conduct in this in-

stance is an example of, sleazy, illegal, and unethical

practice”); Kirsch v. Jones, 464 S.E.2d 4, 6 (Ga. App. 1995)

(plaintiff “took over and bungled the .. . case; . . . is directly

responsible for the problems of [his former clients] and

should be liable for ... the malpractice suit”); Hopewell v.

8

Vitullo, 701 N.E.2d 99, 105 (Ill. App. Ct. 1998) (plaintiff

was “fired because of incompetence”); Allen v. Ali, 435

N.E.2d 167, 169 (Ill. App. Ct. 1982) (plaintiff was “par-

tially incoherent”); Guarneri v. Korea News, Inc., 214

A.D.2d 649, 649-50 (N.Y. App. Div. 1995) (plaintiff was

“unprepared and negligent” and “lost an opportunity to

appeal”). ) =

Thus, in the present case, the Court of Appeal should

never have reached the injunction issue because the

challenged speech was protected rhetorical hyperbole.

That the court did so demonstrates a need for clear guid-

ance from this Court as to the cuntours of protected

rhetorical hyperbole to ensure against uncertainty in the

lower courts and insufficient protection for speech.

B. This Court should elucidate what constitutes

rhetorical hyperbole in order to ensure greater

breathing space for free expression.

A commentator recently noted that

the United States Supreme Court has given

lower courts little guidance on how the reason-

able person standard should be applied to state-

ments claimed by defendants to be only

rhetorical hyperbole. Because of this lack of

guidance, lower federal and state courts have

addressed rhetorical hyperbole in a variety of

ways, leaving declarants with little warning con-

cerning what kinds of statements will be pro-

tected. Additionally, the lack of uniformity among

courts has sometimes led to different treatment

of similar statements made in similar contexts.

Eric Scott Fulcher, Rhetorical Hyperbole and the Reasonable

Person Standard: Drawing the Line Between Figurative

9

Expression and Factual Defamation, 38 Ga. L. Rev. 717,

723 (2004).

Thus, for example, the Ninth Circuit does not view

rhetorical hyperbole as a separate category of speech

subject to protection, but as simply one factor in examin-

ing what constitutes “whether a statement implies a

factual assertion.” Underwager v. Channel 9 Australia, 69

F.3d 361, 366 (9th Cir. 1995). By contrast, the Eleventh

Circuit recognizes rhetorical hyperbole as a separate

category of protected speech which “‘“reflects the reality

that exaggeration and non-literal commentary have

become an integral part of social discourse.”’” Horsley v.

Feldt, 304 F.3d 1125, 1131 (11th Cir. 2002). Each court

that considers the question seems to examine different

factors. See Fulcher, supra, at 736-44 (collecting cases).

As a sound solution for clarifying what constitutes

rhetorical hyperbole, the commentator proposes a formal

three-part inquiry: (1) “Does the statement, when read

literally, assert or imply objectively provable facts?”; (2)

“Do the content and language of the statement negate the

impression of fact?”; and (3) “Does the context in which the

statement is made negate the implication of fact?” Jd. at

755-67. The proposal sets forth additional questions as to

whether the content and language negate the implication

of fact: (1) “Are the Facts Implied or Asserted by Reading

the Statement Literally Fantastic, Impossible, or Highly

Improbable?”; (2) “Does the Statement Convey a Metaphor,

Analogy, or Other Mode of Comparison?”; (3) Does the

Statement Use Language Indicating That Something

Connected to the Subject Is Approaching a Negative

Extreme?”; (4) “Does the Statement Use Loose Language

or Colloquialisms?”; and (5) “Do the Significant Words in

the Statement Have Slang Meaning in Addition to Their

10

Customary Meaning?” Jd. at 757-62. Finally, the proposal

sets forth additional questions as to whether the context

negates the implication of fact: (1) “Does the Statement

Arise from or Relate to a Debate on a Controversial

Issue?”; (2) “Does the Medium Through Which the State-

ment is Communicated Support the Application of the

Rhetorical Hyperbole Defense?”; and (3) “Does the Interac-

tion Between the Parties When the Statement Is Made

Support the Application of the Rhetorical Hyperbole

Defense?” Jd. at 764-766. The commentator derives this

matrix of questions from an analysis of numerous cases

from many lower courts attempting to make sense of the

meaning of rhetorical hyperbole.

This Court has explicitly held that rhetorical hyper-

bole is constitutionally protected speech, but has not yet

provided guidance to lower courts for determining what

constitutes rhetorical hyperbole. The above matrix gives

teeth to that protection and guidance to lower courts for

how to ensure it.

For better or worse, our culture is becoming increas-

ingly more coarse. We are bombarded with public images

and statements that would have shocked prior genera-

tions. See, e.g., Jeffrey Rosen, The Privatization of our

Public Discourse: Essay Privacy in Public Places, 12

Cardozo Stud. L. & Lit. 167, 176-77 (2000). But, when it

comes to speech, the law values freedom over subjective

notions of offensiveness, for it is “often true that one man’s

vulgarity is another’s lyric.” Cohen v. California, 403 U.S.

15, 25 (1971). “The h.story of the law of free expression is

one of vindication in cases involving speech that many

citizens may find shabby, offensive, or even ugly.” U.S. v.

Playboy Entm’t Group, Inc., 529 U.S. 803, 826 (2000). The

above test, clarifying the scope of protection afforded to

11

rhetorical hyperbole, allows greater breathing space for

speech.

C. This case is part of a wave of litigation filed by

powerful figures in an effort to silence uncon-

ventional social critics who lack the resources

to resist such lawsuits.

One consequence of the lack of a clear definition of

protected rhetorical hyperbole is a new wave of lawsuits

and a chill on free expression. This case is exemplary: A

powerful public figure has used his considerable resources

to bring to bear the full weight of the law on two indigent

and powerless persons who dared to express their opinions

in a colorful and caustic manner.

This is not the only example of such a lawsuit. Amici

are victims of a similar lawsuit filed by a large public

corporation seeking to silence their Internet criticisms of

the company. ,

Corporations are increasingly filing defamation

lawsuits in retaliation for statements made about them by

individuals on websites and Internet message boards and

in e-mail. See Lyrissa Barnett Lidsky, Silencing John Doe:

Defamation & Discourse in Cyberspace, 49 Duke L.J. 855,

858 n.6 (2000). These lawsuits are proliferating because

the protection of rhetorical hyperbole is still unclear.

One of the most striking features of these new

cases is that, unlike most libel suits, they are not

even arguably about recovering money damages,

for the typical John Doe has neither deep pockets

nor libel insurance from which to satisfy a defa-

mation judgment. Why, then, do plaintiffs, many

of whom are wealthy corporation=, choose to sue

relatively impecunious John Does? The goals of

~

12

this new breed of libel action are largely sym-

bolic, the primary goa! being to silence John Doe

and others like him.

Id. at 858-59.

These lawsuits will continue to increase unless

checked by this Court, because of the increasing popular-

ity of a unique Internet-based form of expression: the

“flame war.” A flame war is an Internet message-board

phenomenon in which “disagreeing speakers lash out at

each other by spewing forth in vitriolic and ad hominem

attacks.” Bruce W. Sanford & Michael J. Lorenger, Teach-

ing An Old Dog New Tricks: The First Amendment In An

Online World, 28 Conn. L. Rev. 1137, 1143, n.23 (1996).

Flame wars have quickly become ubiquitous in cyberspace.

See, e.g., April Mara Major, Norm Origin and Development

In Cyberspace: Models of Cybernorm Evolution, 78 Wash.

U. L.Q. 59, 85 (2000) (“Due to a certain amount ot ano-

nymity that cyberspace affords, flaming has become a

popular form of expression for many users.”); K. Weng,

Type No Evil: The Proper Latitude Of Public Educational

Institutions In Restricting Expressions Of Their Students

On the Internet, 20 Hastings Comm. & Ent. L.J. 751, 810

(1998) (“This anonymity and ease of ‘speaking’ on the

Internet have also dulled senses of decor in that it is more

commonplace and even accepted to be rude and insulting.

A term called ‘flaming’ has even sprung into being; it

indicates a vicious tongue-lashing.”); Thomas W. Temple,

Marching Bandwidth: Advancing Information Exchange

At Stability’s Expense, 6 J. Contemp. Legal Issues 409, 421 -

(1995) (disputes “often escalate into absurd ‘flame wars,’ in

which masses of messages filled with exaggerated ill will

are exchanged.”). The phrase has even made its way into

recent dictionaries. See, e.g., Merriam-Webster’s Collegiate

13

Dictionary, 441, col. 2 (10th ed. 2003) (defining “flame” as

“to send an angry, hostile, or abusive electronic message”).

Flaming is rarely defamatory.

(A) flame is a common way to vent on the Inter-

net, even among grown-ups and Harvard profes-

sors. People say things on the Internet they

wouldn't say otherwise. In turn, people do not

treat what they read, hear, or receive on the Inter-

net the same way they would something told them

in-person, on the phone, in a letter or that they

read in a newspaper or see on television.

Weng, supra, at 810 (citations and internal quotation

marks omitted). The point is that “in the context of a

‘flame war,’ it would be unreasonable for anyone to believe

that the facts asserted in this war were true and not

hyperbole.” Michael Hadley, The Gertz Doctrine and

Internet Defamation, 84 Va. L. Rev. 477, 498 (1998). But

flaming is nevertheless becoming a rich source of litigation.

Overturning the injunction in the present case will

not by itself stop this wave of litigation, since lawsuits

could still be filed with the purpose of bankrupting un-

popular speakers in a war of attrition over money damages

that may not even be recoverable. There will still be a

significant chill on expression unless this Court addresses

the root of the problem — the ability to sue at all.

D. This Court should protect free expression from

the danger posed by defamation lawsuits target-

ing unconventional speech.

Lawsuits designed to silence Internet criticism pose a

dangerous threat to free speech on the Internet. “Many

corporate plaintiffs that sue for Internet libel seek to send

14

a message to the public that they will pursue aggressively

anyone who criticizes them online, and these plaintiffs

seem to be using libel law to squelch not just defamatory

falsehoods but legitimate criticism as well....” Lidsky,

supra, at 883. “There is some danger, therefore, that the

growing popularity of the new Internet libel suits may

chill more than defamatory falsehoods — it may also chill

the use of the Internet as a medium for free-ranging

debate and experimentation with unpopular or novel

ideas.” Jd. at 890. “The chief threat posed by the new cases

is that powerful corporate plaintiffs will use libel law to

intimidate their critics into silence and, by doing so, will

blunt the effectiveness of the Internet as a medium for

empowering ordinary citizens to play a meaningful role in

public discourse.” Jd. at 945.

—

The Internet is today’s dominant public forum. It has

been described as “the new ‘village green’ for voicing ideas

and persuading one’s listeners.” Robert Kline, Freedom of

Speech on the Electronic Village Green: Applying the First

Amendment Lessons of Cable Television to the Internet, 6

Cornell J.L. & Pub. Pol’y 23, 58 (1996). “[T]he Internet -

as ‘the most participatory form of mass speech yet devel-

oped,’ [citation] — is entitled to ‘the highest protection from

governmental intrusion.” Reno v. American Civil Liberties

Union, 521 U.S. 844, 863 (1997), quoting American Civil

Liberties Union v. Reno, 929 F. Supp. 824, 883 (E.D. Pa.

1996).

Some courts have held that anonymous hyperbolic

statements in the context of a flame war on an Internet

message board did not constitute defamation because the

average audience would not take the speech to contain

provably true statements of fact. See ComputerXpress, Inc.

v. Jackson, 113 Cal. Rptr. 2d 625, 643 (Ct. App. 2001); SPX

—

15

Corp. v. Doe, 253 F. Supp. 2d 974, 981-82 (N.D. Ohio 2003);

Rocker Mgmt. LLC v. John Does 1 Through 20, No. MISC

03-003 3 CRB, 2003 U.S. Dist. LEXIS 16277, at *3-8 (N.D.

Cal. May 29, 2003); Global Telemedia Intern., Inc. v. Doe 1,

132 F. Supp. 2d 1261, 1267 (C.D. Cal. 2001). Other courts,

however, like the California Court of Appeal in Varian

Medical Systems, Inc. v. Delfino and the court below in

this case, have failed to protect unconventional speakers

who employ rhetorical hyperbole to make their points.

Until rhetorical hyperbole is better defined, speech

will continue to be chilled — on the Internet, at sidewalk

protests, and in a myriad of other fora.

¢

CONCLUSION

In the past, on the basis of supposed offensiveness,

public officials sought to censor the novels of James Joyce

and Theodore Dreiser, the poems of Walt Whitman and

Allen Ginsberg, the comedy of Lenny Bruce, and the films

of Louis Maile and Bernardo Bertolucci — all of which have

since become part of our cultural mainstream. In every

one of those notorious cases of government censorship, the

right of free speech has ultimately been vindicated,

whether by the courts or with the passage of time. Far-

seeing judges recognize that the law must reflect, not

shape, the contours of popular culture.

Some of America’s most respected jurists have ob-

served that the right of free expression includes vulgar

and offensive speech. Judge Learned Hand defended the

right of public criticism “either by temperate reasoning, or

by immoderate and indecent invective.” Masses Publ’g Co.

v. Patten, 244 F. 535, 539 (S.D.N.Y. 1917). Justice Oliver

16

Wendell Holmes warned “we should be eternally vigilant

against attempts to check the expression of opinions that

we loathe.” Abrams v. United States, 250 U.S. 616, 630

(1919) (Holmes, J., dissenting). Justice Hugo Black

championed the “prized American privilege to speak

one’s mind, although not always with perfect good

taste.” Bridges v. California, 314 U.S. 252, 270 (1941).

Justice Warren Burger cautioned that “the fact that

society may find speech offensive is not a sufficient

reason for suppressing it.” FCC v. Pacifica Found., 438

U.S. 726, 745 (1978).

Four decades ago, Justice John Marshal] Harlan said

of the night of free speech:

To many, the immediate consequence of this

freedom may often appear to be only verbal tu-

mult, discord, and even offensive utterance.

These are, however, within established limits, in

truth necessary side effects of the broader endur-

ing values which the process of open debate per-

mits us to achieve. That the air may at times

seem filled with verbal cacophony is, in this

sense not a sign of weakness but of strength. We

cannot lose sight of the fact that, in what other-

wise might seem a trifling and annoying instance

of individual distasteful abuse of a privilege,

these fundamental societal values are truly im-

plicated.

Cohen, 403 U.S. at 24-25.

This Court, standing on the shoulders of the giants

who uttered these pronouncements, should vindicate them

here.

For the above reasons, and for the reasons set forth in

petitioners’ briefing on the merits, this court should

17

reverse the California Court of Appeal and hold that, as a

matter of law, petitioners engaged in protected speech, and

that even if petitioners’ speech was defamatory the injunc-

tion constitutes an unconstitutional prior restraint.

Respectfully submitted,

JON B. EISENBERG

JEREMY B. ROSEN*

Horvitz & Levy LLP

*Counsel of Record

Attorneys for Amici Curiae

Michelangelo Delfino

and Mary E. Day