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Jews for Jesus* v. free speech: update

Originally posted 2012-12-04 12:56:40. Republished by Blog Post Promoter

The troublesome “Jews for Jesus” blog is still around, after some people had the impression that perhaps Jews for Jesus, Inc. had been succesful in shutting it down. The J4J Whistleblower is still feeling kind of conspiratorial, writing:

Take your time to read through my previous blogs and the points raised. In one of my earlier blogs I pointed out that it takes time to sort through everything to realize what is going on. My previous post to this one looks at the actual text of Jews for Jesus’ lawsuit and points out what they really want. You’ll find this is in line with Susan Perlman’s comment that Jews for Jesus believes it has a right to how their organization will be represented on the internet. That explains why they are only using this blog as a stepping stone to have Google remove any blog with the name “jewsforjesus” in it. An astute observer on a legal blog pointed out that the likely target is

Harrumph. I couldn’t find that astute observer — Whistleblower is quite stingy with the hyperlinks for a blogger — but if that were true, it would be another blow inflicted on free speech by Jews for Jesus with the help of the courts. Quite ironic considering that this group has actually extended free speech protection in a number of decisions, including one in the U.S. Supreme Court, where its own speech was threatened.

But that sort of irony is already old and tired, isn’t it? It must be, because this story is being fairly well ignored — as the Jews for Jesus v. Brodsky case was — by the usual suspects in the free speech department whose ox, for some reason, doesn’t ever appear to be gored when Jews for Jesus is doing the goring. In 1998, Steve Brodsky’s requests for amicus submissions in the Third Circuit were blown off by both the New Jersey ACLU and the Electronic Freedom Foundation, without any real explanation, for example. Here too the EFF has been silent about this case, as have been the “copyfighters” at I don’t know why now, as I didn’t know why, then. Maybe if Steve Brodsky or the Whistleblower published pornography or scandalous charactures of Dick Cheney or were uploading music files the self-appointed guardians of free speech would have something to say about what’s going on here.

Yes, the old irony is old news. I guess it’s just as well, anyway, because in the area of free speech, now we have the all new irony!

Or is irony just not the right word for plain old cynicism? Well… don’t ask me!

*(Sour grapes warning! But if you can stand the taste, come on in; the dishing’s fine!)

UPDATE: Thanks to Dean for the link. I think that one may criticize my analysis above by suggesting that because of my own personal interest in this case, I am also guilty of the “whose ox is being gored?” syndrome. This may be true, but then I do not claim a comprehensive bailiwick, as the would-be guardians of free speech on the Internet do. I am just one lawyer who has had a few clients with interest in these matters. But I will acknowledge that the experience of representing Steve Brodsky against Jews for Jesus, Inc. and The National Debate against the New York Times has affected my own views, which formerly were biased in favor of trademark and copyright holders — that, and getting beaten up on daily basis for several months on the CYBERIA-L list, largely at the hands of Mike Godwin! So you know — we grow, we learn…


Originally posted 2009-01-22 13:31:48. Republished by Blog Post Promoter

"The Interloper" (Norman Rockwell)

"The Interloper" (Norman Rockwell)

Working from home today after a bruising few weeks at work (see yesterday’s post!), I finally figured out what was going on with banner ads on my Internet browsing.  It raises an interesting question about Internet-related copyright and trademark law.

We use a filtered Internet service at home.  This way we know that not only do our children not have access to or permission to use the Internet, but even if they “happen to” get to it anyway, the worst of the worst is not coming into our house.  This is good for the grownups too, of course.

I recently adjusted the filtering level on the service and by virtue of that change the filter now happens to block banner ads.  This I did not mind, because many such ads, especially on Yahoo! mail, are quite garish and often rather gross and, frankly, indecent.  After this change I also started seeing a filtering message in the place of familiar, and relatively high-class, banner ads on my favorite “big” blogs that feature ads, such as Instapundit. It was not a great aesthetic experience but I got used to it.

A little while later I had the jarring experience of realizing that ads for charity auctions on behalf of orthodox educational  institutions — including a client of mine! — and solicitations for fundraising on behalf of penurious young couples in Israel were appearing on that very same site, one of the most popular English-language blogs in the world!  Well, I would say Glenn Reynolds is pretty Jewish-friendly, to say the least, but this struck me as pretty odd.


Once I could focus on the question, however, I realized what was going on:  My filtering service was reselling the filtered advertising real estate to advertisers interested in the orthodox Jewish Internet user market!

This seems to raise some interesting questions, doesn’t it?  Read More…

More on international law and the Web

Originally posted 2009-10-26 23:59:24. Republished by Blog Post Promoter

Instapundit reports:


According to Reporters Sans Frontieres (Reporters Without Borders), Information supplied by Yahoo! helped Chinese journalist Shi Tao get 10 years in prison

The text of the verdict in the case of journalist Shi Tao — sentenced in April to 10 years in prison for “divulging state secrets abroad” — shows that Yahoo! Holdings (Hong Kong) Ltd. provided China’s state security authorities with details that helped to identify and convict him. It reveals that the company provided the Chinese investigating organs with detailed information that apparently enabled them to link Shi’s personal e-mail account (on the Chinese Yahoo! service at and the specific message containing information treated as a “state secret” to the IP address of his computer. More details from RSF here.

Shi Tao was jailed because he e-mailed sensitive political information to be posted on dissident websites hosted outside China. His case is a cautionary tale to bloggers around the world: If you are publicizing information and views that your government doesn’t want exposed — even if you believe you have the right to do so under the Universal Declaration of Human Rights — companies like Yahoo! will not shield you from your government.

I don’t like this.

No, and who would? Collaboration in Communist repression by multinational web-based companies is not a new problem. But on the other hand — and with reference to this recent post here — what can we do about it? I’m not asking rhetorically. These companies are bound to follow national law wherever they do business. Do we say that the people of China are better off in the long run if Yahoo! and Google disengage, or if they comply as required? With China, I don’t believe there is an in-between option. If someone has enunciated one, I’d like to know.

Bloggers aren’t fair game in litigation just because you can

Originally posted 2011-04-11 00:41:06. Republished by Blog Post Promoter

There is really justice in this world, sometimes, reports David Ardia:

A federal magistrate judge in New Hampshire has sanctioned Clifford Shoemaker, a Virginia attorney, for abusing the legal process by issuing a subpoena to Kathleen Seidel.

We really blew this one, blogging wise.  But it could be worse: We could have been Shoemaker, who blew it lawyering wise:

Mr. Shoemaker made no attempt to avoid imposing an undue burden or expense on Ms. Seidel. To the contrary, I find that he sought to burden her by requiring production of every scrap of paper related to autism, her web site, her tax returns, and her communications with the government. He improperly imposes a requirement to create documents, e.g., a list of “names of persons helping, paying or facilitating . . . these endeavors.” The documentation sought is exhaustive. . . .

Shoemaker has not offered a shred of evidence to support his speculations. . . .  [H]e issued the subpoena calling for production of documents and a deposition on the day before he stipulated to dismiss the underlying suit with prejudice. His failure to withdraw the subpoena when he clearly knew that suit was over is telling about his motives. His efforts to vilify and demean Ms. Seidel are unwarranted and unseemly.

Perhaps we are just so used to enduring abusive litigation tactics that judges just yawn at that we are jaded.  (Every time you complain it’s assumed both sides are equally guilty.)  That’s bad.

We used to spend a lot of time lawyering in New Hampshire, actually (doing discovery in a Southern District of New York case).  Must admit we miss that fresh air.

Google, Geico Good to Go

Originally posted 2014-03-14 10:41:00. Republished by Blog Post Promoter

Google and Geico have settled.

Anti-Sedition Acts begin their attack on the Internet

Originally posted 2014-09-05 10:55:51. Republished by Blog Post Promoter

Different River reports on the biggest threat to free speech ever — the McCain-Feingold Act and its state law copycats.  Is there any chance that the new and improved Supreme Court will save us from this not so petty tyranny?  Or will the present controversies over “money in the political process” (see here for a contrarian view, by the way) make things even worse?

Trademark: The tort of choice for censors

Originally posted 2009-10-20 23:46:20. Republished by Blog Post Promoter

Same old, same old we’ve been talking about since forever (via Glenn):

A posting over on the Big Government blog details recent attempts by the American Federation of Teachers (AFT) to shut down the website at (which, as you might guess from the name, doesn’t have very nice things to say about the AFT). The AFT’s General Counsel has sent the operators of the offending website a cease-and-desist letter, demanding “immediate cessation of use of the domain or any other variant that includes the acronym AFT.” The asserted grounds: (a) trademark infringement (that use of the AFT acronym is “likely to cause confusion, or to cause mistake, or to deceive”), and (b) violation of ICANN’s Uniform Dispute Resolution Policy (on the grounds that the name is “confusingly similar” to AFT’s trademark and was “registered in bad faith.”).

It’s pretty much pure unadulterated nonsense, little more than an attempt by the AFT to silence a critical voice, and I hope that the folks don’t cave in to the pressure. The trademark claim is very, very weak; consumers are pretty stupid sometimes, but they are not nearly stupid enough to be confused into thinking that a site called “AFTexposed,” which has as [its] tagline prominently displayed at the top of the site “The website the AFT doesn’t want you to see,” is somehow affiliated with the AFT.

Boomerang_(PSF)Well forget about the tagline; it’s too late once you get to the site — there’s already been an incidence of the dreaded “initial interest confusion” by then!  But David Post is right:  In this case, the domain name itself negates any possibility of that, and you’ve got nothing but fair, fair use for a defense.

That won’t stop a wealthy plaintiff, though — and who’s wealthier these days than public employee unions? — from suing, however.  After all, there’s pretty much never fee-shifting in defendants’ direction under the Lanham Act, although the statute does provide for it (or for that matter for frivolous copyright claims)  But good luck on that.

So trademark infringement remains the legal claim of choice for those seeking to shut down smaller, poorer message opponents.  File yours today!

UPDATE:  Johnny may not be able to read, but the AFT knows how to interpret blog traffic logs.  They’ve backed down.

Anonymous penumbras; submerged emanations

Originally posted 2011-02-15 13:30:04. Republished by Blog Post Promoter

Glenn Reynolds links-n-thinks:

ESTHER DYSON: Internet anonymity is like abortion. “I’m pro choice, but I think abortion is an unfortunate thing. I think the same thing about anonymity: Everybody should have the right to it, but it’s not something one wants to encourage.”

Maybe that’s why we’re not-so-pro-choice here.  (We happen to reject the nomenclature anyway so don’t get us started.)  Not “everybody” should have “the right to” Internet anonymity.  We’ve long objected to the anonymity premise, because not nearly enough weight is assigned its potential costs in a modern communication regime, as opposed to in the pre-Internet era.

That doesn’t mean we don’t appreciate Internet anonymity’s value in certain circumstances.  But, like abortion, we should distinguish between cases where a departure from a general rule of prohibition is justified.  Let’s don’t posit a dubious “right” when at most we mean a desideratum and, more likely, we mean something regarding which reasonable people can disagree — anonymously or otherwise.

S&L v. Australian Gold: You, the Jury

Originally posted 2009-01-08 21:34:29. Republished by Blog Post Promoter

Its all about the coin.

It’s all about the coin.

Here’s S&L Vitamin’s Trial Brief for the trial scheduled for next week in the above-entitled cause.  (Or you can read it at the bottom of the post).  We pick a jury on Monday, and after a day “off” for stuff I don’t even want to mention, opening statements are Wednesday morning.

Oh, all right.  Here’s Australian Gold’s trial brief.  I’m sure our distinguished adversaries are at least as proud of this work product as we are of ours.

I will not comment on the prospect of this trial, of course, at least not at this juncture.

But others have, more or less. And now, you can too!

Florida: A nice place to visit, but…

Originally posted 2014-06-25 01:28:18. Republished by Blog Post Promoter

Internet Solutions operates recruiting and Internet advertising businesses, including one called VeriResume. Tabatha Marshall runs a blog and website at that monitors “phishing,” including dubious job pitches. One section of the blog focused on VeriResume, and the various users posted comments criticizing VeriResume. As the Citizens Media Law Project explains:

One user, who claimed to be a company employee, alleged that the company engages in a “bait-and-switch” routine after applicants submit their information, according to documents attached to the complaint. In an update to her original post, Marshall summarized these user’s comments and expounded on the situation. . . .

[ISC sued.] Internet Solutions’s complaint includes claims for defamation, false light invasion of privacy, and injurious falsehood (trade libel). It alleges that Marshall has “author[ed], post[ed], and publish[ed]” statements claiming that Internet Solutions engages in “phishing,” “scams,” and other criminal and fraudulent conduct. It requests compensatory and punitive damages, and an injunction requiring Marshall to remove the allegedly defamatory posts and prohibiting her from making future defamatory statements about the company.

On April 8th of last year, the court dismissed the complaint on the ground that it lacked personal jurisdiction over Marshall. Internet Solutions then appealed the dismissal to the 11th Circuit and the 11th Circuit certified a question to the Florida Supreme Court as follows: “Does posting allegedly defamatory stories and comments about a company with its principal place of business in Florida on a non-commercial website owned and operated by a nonresident with no other connections to Florida constitute a commission of a tortious act within Florida for purposes of Fla. Stat. section 48.193(1)(b)?”

This is the friend of the court brief filed (conditionally) by the Media Bloggers Association, urging the Florida Supreme Court to respond in the negative. The summary of our argument is as follows (from the brief):

Amicus curiae files this brief to urge this Court not to extend the Florida long-arm statute to reach what is in effect any non-commercial Internet website in the world, regardless of its connection to this State. Such a wide-ranging assertion of jurisdiction for defamation by long-arm jurisdiction would violate the First Amendment of the United States Constitution’s guarantee of free speech by chilling protected journalism and commentary on the Internet. A finding that content or comment on a blog such as Ms. Marshall’s, which is for all meaningful purposes located in another state, constitutes “a tortious act within Florida” would be contrary to case law and would offend the constitutional policy, based on principles of due process, underlying personal jurisdiction. Amicus also urges the Court to decline to extend the Florida long-arm statute because of the conflict such an extension would create with 47 U.S.C. §230, which immunizes website operators from liability arising from the defamatory postings of others.

The brief is short and may be worth scanning if only to find the delicious–but entirely legally germane–punchline right before the Conclusion!

Major work on this filing was done by MBA intern Andie Schwartz and major thanks are due, of course, to Kevin Wimberly of Orlando’s Beusse Wolter Sanks Mora & Maire, P.A., which acted as pro bono local counsel.

(And guess who dragged us into this!)

Cross-posted on the MBA Legal blog.