 My name is Adam Holland. I'm a project manager here at the Berkman Klein Center, primarily responsible for the Lumen Project, which project features prominently and what you're about to hear today. It is my great pleasure to welcome Professor Eugene Volok here to Harvard Law to speak. I would say this is probably the best chance I've ever had to say, this speaker needs no introduction because I feel like he's in these circles. Something of a rock star, but I'm going to introduce him anyway just because it's that wonderful. Professor Volok teaches at the UCLA School of Law, where he teaches free speech law, tort law, religious freedom law, as well as a First Amendment amicus brief clinic. He's also taught copyright law, criminal law, and a seminar on firearms regulation policy. And before coming to UCLA, clerk for both Justice Alex Kaczynski on the Ninth Circuit Appeal Court and for Justice Sandra Day O'Connor on the Supreme Court. He's the author of a First Amendment law textbook and is one of the most heavily cited legal authors currently now writing with over 75 articles and 80 op-eds cited by the Supreme Court as well as a variety of federal and district courts. And perhaps in terms of public penetration is the founder and co-author of the Volok Conspiracy blog, which you can now find on Reason, having previously been on the Washington Post. Somehow Professor Volok also finds the time to both litigate and practice and has argued before the Seventh Circuit, Ninth Circuit, variety of state supreme courts and has filed amicus briefs and courts too numerous to mention. We are thrilled to have him here because of his recent work regarding libel law online, how it's evolved recently, and what we can do about it. And that research has been using Lumen's database of court orders, asking Google, Twitter, and others to remove content. And the details are pretty astonishing. I believe Professor Volok used the word lurid. So I'm going to, with that, turn it over to him. And I hope you'll join me in welcoming him, Professor. A very great pleasure to be here. No? I'm so sorry. Yes. My apologies for trying to remind everybody that this is being recorded and webcasted. So anything you say will be archived with posterity. Maybe we do want you to ask to take it now. We'll see how it goes. There's a question on here. And also, if you do ask a question and you don't have my parade ground, boys, please use the mic to make sure that your question gets on to the floor. Thank you. So it's a great pleasure to be here in large part because being hosted here by the Lumen folks without whom all of this work would have been impossible. So very glad to be here. And also very glad to talk about the subject. I've been studying it one way or another for the last two years, probably going to write six, seven, eight articles based on all of this. And I feel I've learned a lot over the last couple of years studying this. And I hope many of you find this original and unexpected as well. So when most of us think of libel, we think of New York Times v. Sullivan, right? If you think what are the cases you studied in First Amendment law about libel, almost certainly New York Times v. Sullivan, quite likely Gertz v. Robert Welch, maybe Dunn and Brad Street v. Green Moss builders, the public figure, private figure, private concern cases. Those are really important cases. They have been important for a long time. But we don't think much about it as Jimmy Cochran or the defendant that whom he sued, whose photograph unfortunately I couldn't find, Ulysses Tory, from the case Tory v. Cochran. So the last substantive Supreme Court libel case, the last case that had to do with substantive rules having to do with libel, was in 1992. It was the Mass v. New Yorker case. But since then, there was one case that came before the court on libel. And it had to do with whether injunctions are permissible. And when are they permissible in libel cases? And so that was an important procedural question. But what happened is Jimmy Cochran died. And as a result, the case was essentially not exactly mooted, but largely mooted. Because an injunction is a personal remedy. You can't libel the dead. When somebody has died, the plaintiff has died, the forward-looking aspect of the injunction becomes basically no longer apt. And that's really all the court decided there. The reason I put these up here is that the thing on the left is what we've long thought libel law is all about. But the Tory v. Cochran case, the libel injunction case, it turns out a lot better represents a lot of what is going on at least on the ground in libel cases today. That a vast number of libel cases have very little to do with what is required for compensatory or presumed or punitive damages. Because often the damages are completely unavailable. And they have a lot to do with remedies questions. Questions about what do you do in order to enforce the substantive scope of libel law, whatever that might be. And that's what Johnny Cochran represents. And that's what I think the present and likely the future of libel law is as well. So the talk is about libel and privacy. Now privacy is a very controversial matter. I'm actually a privacy minimalist, especially when it comes to things like the disclosure of private fact storage. Some courts have rejected it. Most courts have accepted it. The Supreme Court hasn't passed it. There are a lot of substantive controversies about the scope of privacy law. But libel law is pretty broadly accepted. Not everybody signs onto it, but certainly the Supreme Court has repeatedly reaffirmed that there is a libel exception to the First Amendment. It's routinely enforced. The question is, how has a practical matter do you control it? Now the traditional answer was civil damages. Again, with these disputes about what men's rares are required for various types of damages, but civil damages. No injunctions. That was one of the things that shocked some people about the Tori V. Cochran case. How could there even be injunctions? After all, doesn't it say that equity will not enjoin a libel? Aren't injunctions prior restraints? So that was the conventional wisdom, certainly when I was going through law school in 89 to 92. But I think for many people continuing today, they view that as being the rule. Criminal libel in near desuitude, that was the phrase from the Model Penal Code in the early 1960s, and even more so assumed now. And one other thing, which is not exactly a remedies thing, but worth keeping in mind, traditionally what we had was also intermediary liability. So if, say, a newspaper publishes a letter to the editor or an op-ed or some such, the newspaper would be liable for it. So that's the traditional model. And that is a model that works to some extent when people with money sue people with money. It might be a model that works with people without money sue people with money. Of course, it's always harder to be a person without money. But in principle, if you've got a really solid case, you might be able to have a contingency fee lawyer who will represent you in this. And by the way, my sense is that happens actually pretty commonly in one area of defamation law, which most of us don't think about, but which is employment law. That often it happens that an employee is fired and one of the claims of the employee brings is defamation, that the employer had libeled the employee. And those cases are often handled on a contingency fee basis. What about people with money suing people without money? Well, they can spend the money to hire a lawyer. But they're never going to see any of it back. So maybe one reason they are with money is they've learned not to squander their money. But of course, if it's people without money suing people without money, well, there's really nothing that the current system gives them. It's like all of these, this traditional damages model, is it's empty. There is no mechanism for either compensation or deterrence in this kind of situation. Now, if you think about it, historically this wasn't much of a problem because people without money couldn't gain access to the means of mass communication. That was always a major flaw of the old system because it suppressed good speech, but it also, as it happens, also suppressed the bad speech. It was at least a little bit harder, probably I shouldn't say a little bit, a lot harder for somebody to damage someone's reputation in a massive way because they didn't own a newspaper. And when they wrote the nasty letter to the editor, the newspaper said, we won't publish it. But nowadays, that's no longer so. So nowadays, the problem has outrun the scope of existing remedies. What has been the consequence? First is the survival and revival of criminal libel law. About 20 criminal libel cases per year is best I can tell in about a dozen states. Almost none of them make their way into the appellate reports. You do a Westlaw search. It looks like they're not happening. They are happening. Not a vast number by any means, but they're there. There is continuing appetite for criminal libel law. And I think, again, the reason is if somebody is judgment-proof, they're not jail-proof. And if the plaintiff, if the person whom they libeled, doesn't have money to hire a lawyer, the prosecutor might view himself as being the people's lawyer. And saying, look, what was said about you is bad. It had bad effect on you. We're in one of the 13 states that actually allow criminal libel law. Let's enforce it. And in fact, almost all of the states in which there's a criminal libel law, there are at least occasional enforcement. Another interesting thing is I actually participated in litigating a challenge to a Minnesota criminal libel statute, which was struck down because it didn't allow truth as a complete defense. It was only a qualified defense. But it was then promptly reenacted. Reenacted in a narrow form, constitutionally permissible form. I'm not faulting the legislature for doing it. But what it shows is there is an appetite for criminal libel. They didn't just say, well, you know, it's almost never used. What's the point? They were actually willing to pass a new version. In my own state of California, criminal libel law has been repealed. California courts have been reinventing it. There is a statute, which is generally called the identity theft statute. That's the colloquial name for it among lawyers and judges. It does not, however, require identity theft as an element. Rather, what it says is it is illegal to use certain attributes of a person's identity for unlawful purposes. One of the attributes of a person's identity, person's name, unlawful purposes, courts have read, includes tortuous purposes. So under this reading of the statute, which has been accepted by several appellate courts in California, using someone's name for purposes of tortuously libeling them as a crime. Now, I think that's actually not right. I think that the courts should not have read the statute as broadly as basically recreating criminal libel law. But the fact that they did, I think, helps show that there is an appetite for this against stemming from the sense that there is all of this libelous material out there that the existing remedial system is doing nothing about. There are also these so-called criminal harassment statutes, often statutes that bar saying things that are intended to abuse, or distress, or annoy, or harass, or embarrass. And generally, they require repeated statements. Now, when articulated this way, I think those statutes are unconstitutionally overbroad. And I've been involved in various challenges to them. But at least some of them actually specifically have exceptions for protected speech. And conventionally, the way that they're used is for things like true threats of violence. So in many states, if somebody threatens you, they'll be prosecuted not under a separate threat statute. Some states have that, but many don't. They'll be prosecuted under the harassment statute. But one category of unprotected speech, of course, is libel. And libelous statements, especially, have said with so-called actual malice, are generally intended, or at least can often be argued to be intended to annoy, or distress, or embarrass. They're often repeated. And I've found at least three states in which criminal harassment persecutions are being used essentially as a way of recreating criminal libel law. And then finally, there's another area, which is a narrower form of criminal libel law. Focuses on just impersonation. And a lot of impersonation is libelous. If I impersonate you and post silly things under your name or self-incriminating things under your name, I'm essentially libeling you. I am falsely saying something that will damage your reputation. And that thing is that you have said the following. And they actually pose some constitutional problems as well, if they can be used for things like pretty clear parodies. Just like libel law poses constitutional problems if applied to parody. But to the extent that parodies can be excluded from that, and I think courts generally do view parodies as not being true impersonation, these are narrower statutes that I think may actually make a lot of sense as a means of punishing a certain kind of particularly dangerous libel. But in any event, again, their existence, I think, is evidence that we are seeing a turn towards criminalization. Now, again, poor people should be free to speak. It's great that poor people should be free to speak. I was once poor. Most of you maybe still are poor. Maybe with your student loans. Maybe indefinite. No, no, no. But in any event, I think this is a great asset. And for over 20 years, I've been arguing that one of the great things about the internet is it actually makes real the promise of free speech, real freedom that before was, as in the words of A.J. Liebling, freedom of the press belonged to him who owned one. So I think we're in a lot better world in many ways, but freedom includes freedom to do bad things. And when the only remedies that are available are remedies that work against people who, if not quite rich, at least have insurance, let's say. Then once you empower judgment-proof people to speak, there's going to be pressure for some other remedies. And rightly or wrongly, criminal remedies are on the upswing. Now, let me turn to a different kind of remedy, which I've already hinted at. But let me first just point to something which should be kind of obvious, but it's worth thinking about separately with an eye towards what I'm about to talk about. And that's the difference between print defamation and internet defamation. Traditionally, print defamation is a short, sharp shock. So you wouldn't get an injunction against a newspaper article defaming you, because usually, you wouldn't know in time that the article was about to come out. Certainly, you wouldn't have the text of the article. And once it comes out, the injunction is kind of pointless, unless you think the newspaper will keep writing about you, which newspapers generally, I mean, sometimes they do, but generally they don't, because it bores the readers. So historically, damages have been practically the only useful remedy, even setting aside the legal constraints and injunctions. Internet defamation of the model is persistent damage, the drip, drip, drip, that every day people who Google my name are seeing this defamatory thing about me. So injunctions become something that's more appealing. They look like setting aside the constitutional question of whether they're a constitutionally permissible remedy, they look like the more sensible remedy, just like in a nuisance case, that historically nuisance law deals with things that are kind of nuisances over a long time. If somebody, if there's an explosion of the neighboring plant, you're not going to get an injunction against a nuisance because the plant's gone. It's exploded. You just need damages for the damage. But if the plant keeps sending out nasty smells, well, then you want the injunction. So likewise with modern internet defamation. Now, what is the rule as to injunctions and appellate courts? One reason that the court agreed to hear Tori V. Cochran is that many courts, including California Supreme Court, had said, and the case came out of California, that injunctions are permissible against libel in very narrow circumstances. They're OK if they restrict only unprotected speech that is found to have been unprotected, in this instance, defamatory. So there's actually a judgment that it's a defamatory following a trial on the merits. So once you have the trial on the merits that finds a speech to be defamatory, then many courts say, what's the difference between an injunction that basically makes it punishable going forward? And damages liability. Both of them are a restrained speech before it said, in the sense that damages liability operates by deterrence in many respects. Both of them ultimately punish speech only after it's been found to be defamatory. They're functionally equivalent. And that's why most courts that have considered this issue have indeed allowed that. Here's what I'm seeing in trial courts. And again, thanks to the help of the Lumen database, at least in many trial courts. Here's one example. Defendant is permanently enjoined from publishing any statements whatsoever with regard to the plaintiff. Not remotely limited to libel. And I've seen dozens of orders that are just like that. Or you might have narrow orders that only ban disparaging statements. But disparaging doesn't mean false and defamatory. Lots of things are disparaging that are perfectly true. In fact, the more true they are, the more disparaging they may be. Bans and use of photos. Defendant shall not post any photographs of plaintiff with no limitations like for advertising purposes or something else that makes them actionable. Also, preliminary injunctions and temporary restraining orders issued before any finding on the merits. And in some situations, exparte issued before even any participation on the part of the defendant. The defendant could speak up and say, no, no, no. This statement is actually quite true. Now, if you think about it, these injunctions can be broken down into different categories that raise different problems. So one is the first example that I gave, the overbroad injunctions. Those, I think, are clearly overbroad. You don't need to think about remedies or about damages or about criminal libel and as a comparison. Because they clearly apply to even non-defamatory speech. So I'm writing an article about that. I've written about related aspects. I think that should be an easy case. Well, what about a preliminary injunction against speech that really is libelous? Or at least, excuse me, that is alleged to be libelous. But the injunction is limited to libel. So you can imagine an injunction that says, defendant shall not continue to repeat the statement which I, as a judge, have found to be probably libelous. That, I think, is also unconstitutional because there's no finding on the merits. But that's, I think, an interesting and separate question. Again, though, note what's going on here. Judges are looking at a situation where the sense is there's enduring damage. There's no adequate remedy at law. This is the equity buzzword. Because the defendant has no money. Every day, there are hundreds of extra dollars of damage amounting to many thousands over the course of the year that are happening. And every day we don't stop it is a day the damages will never be compensated for. Then there's what I call a criminalization injunction. So here's a quote. Defendants shall not publish any further defamatory false statements regarding plaintiffs on any internet website. This injunction is like a mini criminal libel law, just for the defendant and just for the plaintiff. It's not criminal libel law for everybody about everybody, but for these defendants, it is a criminal libel law because if they violate the injunction, what's the remedy? Criminal contempt. Possibly also imprisonment for under civil contempt theory until they delete the stuff. But potentially criminal contempt. So what it really does is it takes something that in most states has been decriminalized that it makes it a crime again. I don't think criminal law is unconstitutional. In fact, the Supreme Court has pretty clearly said that narrowly crafted criminal libel laws, excuse me, are constitutional. But I do think that this is a separation of powers problem. I think what happens if a court is essentially recriminalizing something that the legislature chose to decriminalize, I think that that is a mistake. Well, how about the same injunction in one of the dozen states about the quarter of all the states that do have criminal libel laws? It's really, you might think of it as a criminal libel reaffirmation injunction, but you might also think about it as a cut out the prosecutor injunction. If I go to court and get this injunction, if I'm the plaintiff, and then the defendant keeps libeling me, the real advantage to me is I don't have to knock on the prosecutor's door and persuade the prosecutor that he should be going after this defendant for a criminal libel when he says, well, wait a minute, I've got real crimes to prosecute. I've got robberies, murders, whatever other things to prosecute. Because once I have the injunction, in most states I can then bring the criminal enforcement proceeding myself. So that's an interesting question. Do we like that or not? And I think a lot depends on what we think about prosecutorial discretion. If you think prosecutorial discretion is an important check on the use of the criminal law to make sure that criminal law is only used for those things that are really serious transgressions, then you might say that's really very bad because it's important that the prosecutor decide whether to enforce criminal law or libel law, which in those states prosecutors sometimes do but generally don't. On the other hand, if you don't like prosecutorial discretion, especially in speech cases, because you're afraid of viewpoint discrimination, you're afraid that the prosecutor will go after people whose speech he dislikes, but not after people's speech he likes, then you might like these kinds of criminalization injunctions because they don't leave that kind of discretion to the prosecutor. And then finally, there are these specific injunctions. So here's an example. The defendant is permanently enjoying from a scribing conduct or plaintiff that implies that he ever sexually abused any 118 years of age. These are the kinds of injunctions that the lower courts that I mentioned, California Supreme Court, the Seventh Circuit, Ohio courts, Minnesota courts, various other courts have said are permissible. Now, excuse me, let's compare those injunction, let's compare this injunction to the broader injunction that I mentioned. The one that says, shall not publish any further defamatory false statements regarding plaintiffs on any internet website. That injunction, as I said, is potentially troublesome, but I don't think it's unconstitutional. I don't think it's a First Amendment violation as such because all it does is it punishes speech that the Supreme Court has said is constitutionally unprotected against civil liability, why shouldn't it be, and against criminal liability as well, why shouldn't it be enjoyable as well? Well, in fact, actually, the narrow injunctions sound better because they have a narrower chilling effect, right? The defendant is still free to say lots of things about plaintiffs, just can't make that one particular allegation. On the other hand, while it's narrower, that injunction lacks some of the procedural protections that the broader one has. So for example, under the broader injunction, the prohibition changes as the facts change because the injunction only bans defamatory false statements. If it turns out that the plaintiff does start abusing under 18-year-olds, then you can actually make that statement. And that's especially active, for example, the claim is, well, the defendant defrauded or mistreated a customer. You know, maybe he didn't mistreat it so far, but it's always possible at some point you'll mistreat the customer. Should you have, be in a position where you can't say that at least until you go into court and get permission from the court in the form of a changed injunction. Another thing is that because an injunction is an equitable remedy, generally tried in front of just a judge, for the first kind of injunction, you may not need to have a jury finding of falsehood. But you would need a jury finding of falsehood at least until there's, excuse me, at least if you're going to punish the defendant for violating the second injunction because if the punishment comes through a criminal contempt proceeding, then assuming a jury is available in a criminal contempt proceeding, which they often are and they have to be if there's at least six months, more than six months in jail is a possible sentence, but in general, I think they're quite commonly available. Then so in a sense, this broader injunction, while broader at least has this extra protection. Another thing is that you can't be convicted for violating the broader injunction unless there's falsehood found beyond a reasonable doubt because after all it's enforceable through criminal law and the reasonable doubt standard is applicable for criminal law. But in a civil injunction, the falsehood only has to be found by preponderance of the evidence. And while you still need to be found criminally liable for criminal contempt for violating that injunction, you can't at that point of the criminal proceeding under the so-called collateral bar rule in most jurisdictions, you can't re-litigate the validity of the injunction. So the validity of the injunction will have been decided by just a judge who found the falsehood by preponderance of the evidence and then you could be convicted therefore even if there is no finding beyond a reasonable doubt of the falsehood. Last and perhaps most important, in a civil case you don't get an appointed lawyer with a very, very few exceptions. So if the defendant doesn't have any money, then the injunction could have been entered against the defendant without the defendant having any counsel that could step in and say, well, wait a minute, this speech is constitutionally protected whether it's because it's true or because of something else. Whereas in an enforcement of the criminal injunction, excuse me, in a criminal contempt enforcement of the second injunction, you would have a lawyer. And at that point, because the injunction requires a continued showing of falsehood, the lawyer would be able to say, well, defendant is in guilty of violating the injunction because he didn't say anything false. So you may not think that all of these procedural attributes are really important before a speech is restricted, especially through the criminal process, but I'm inclined to say they probably are. So that is one way in which actually the narrow injunctions are vulnerable. One interesting thing is that if this is your main concern with injunctions and you can imagine other concerns, it turns out that you can get the best of both worlds by basically one word change, by adding, excuse me, I'm sorry, I have the wrong text here. Sorry about that. Here's what I should have said. Defendant shall not falsely state, sorry, defendant shall not falsely state that plaintiff ever sexually abused anyone under 18. If you just add the word falsely to the text of the injunction, that means the falsehood has to be realligated at the criminal contempt proceeding. And what that means is that if indeed the facts change, then the injunction wouldn't be applicable anymore by its own terms, because now the statement of the allegation would be true. You'd have to have a jury finding a falsehood, assuming that there's a jury at the criminal contempt proceeding. You'd have to have a finding of falsehood beyond a reasonable doubt because that's an element of the injunction. And you'd have to have an appointed lawyer in determining the falsehood because again you'd be prosecuted for criminal contempt there. So if you think that injunctions are potentially viable but worry about those procedural problems, then it seems to me that injunctions might be a remedy that could help solve some of the issue. That could provide some degree of protection even against the judgment-proof speakers while providing the speakers with what I think is adequate protection as well. All right, so that's the second category. But really, really deep down inside, for most plaintiffs, they don't really want an injunction against the defendant because the injunction still has to be enforced. And sometimes the injunction can't be adequately enforced. What if the defendant is anonymous and you can't really pierce the veil of the anonymity? You get subpoena to try to track them down but it turns out somebody posting something from some internet cafe, no way of catching them. What if they're outside the jurisdiction's reach there in my old home country of the Ukraine and you can try to enforce an American judgment of the Ukraine, I suspect it's pretty difficult. What if the defendants are unable to take down the post? There are some websites that don't let people take down their own posts. What if the defendants are dead? What do you want? What you want as the plaintiff is you want Google to de-index the post if it gets a court order saying that the post is defamatory. And if you just tell Google, oh, somebody's defaming me online, Google would say, look, it's not our job to figure out what's defamatory and what's not. But what if you go to the court whose job it is to figure out what's defamatory and what's not. The court issues this injunction or the court issues just findings a fact saying, yes, I find that the post is defamatory. And then you go to Google and say, look, this is an injunction binding you. Realize we can't bind you because you have intermediary immunity. We didn't name you as a party in the original injunction. But pretty please, out of respect for the court, out of concern for defamed people and out of an interest for your own customers or your own users who presumably would like to see accurate information rather than false and libelous information, why don't you just deindex this post, which for practical purposes is for most people as if it vanished. Sounds like a great bit of public-private partnership. Courts do what they do well, which is figure out what's going on. Google does what it does well, which is enforce this. So here's an example. This is from Harris County, Texas. BCI property management if you lose Neroida Ramos. Lawsuit Ramos is an individual who resides in Harris County, Texas. That's why they're filing in Harris County, Texas. And what's more Ramos signs a stipulation by, excuse me, signs a stipulation acknowledging that the statement was false and defamatory and therefore approving of the injunction. And what's more, not only does she sign it, she gets it notarized just for extra verification. Though interestingly, she gets it notarized in Sacramento, California. Now, you know, you can go somewhere and notarize things there. I remember once I had to file some document. I had to notarize it, but I was in Florida at a conference. Turns out some hotels actually have a notary on staff. Smart thing. If you ever run a hotel, have a notary on staff. So it's certainly possible. Here's the funny thing. The same lawyer who filed this case in the same year filed a total of seven cases, all of which involved stipulated judgments and libel cases, all of which claimed that the defendant was a resident of Harris County and all of which the defendant's signature was notarized in Northern California. And if you look at other cases filed in Harris County, you'll find another eight or so filed by other lawyers which fit the same pattern. Then you look at a bunch of them in Ohio, same pattern, and one in Maryland and Florida, which are linked to the Ohio lawyer, same pattern. The Texas Attorney General's office has now filed a lawsuit against Silvera Group, which is a reputation management company, and it's founder Chris DeNota, who would actually, you know, this was a pretty prominent organization. It would have been written up in national newspapers as a company that will help solve your reputation management problems. The problem is they seem to solve those problems by finding in their local area in Northern California people who would falsely claim to have been the authors of the comments or of the posts, and then get the stipulation, get a court order, and then get Google to de-index the things based on that court order. Even though, in fact, as best we can tell, there's no reason whatever to think that the defendants were actually the boasters. So, all right, all right. Well, here's another case. Smith v. Garcia. This one's actually pro se. Federal District Court, District of Rhode Island. Deborah Garcia. The court finds that Deborah Garcia posted something, actually a comment on getoutofdebt.org site, and getoutofdebt.org is a site run by, forget the name popped out of my head, but he's a guy who's apparently a legit commentator on consumer death questions. So he posted some things that criticized a financial rescue, which is a company that Brad Smith runs, and then there was some comments by Deborah Garcia that Deborah Garcia stipulated were libelous. And what happened is the court issued this order, which was then the plan was to send it to Google for de-indexing, which as it happens would have de-indexed the whole page, and not just the comment, because that's all that Google can do. The problem is there doesn't seem to be a Deborah Garcia at 1588 Main Street in Warwick, Rhode Island. Now, we can't know for sure, although somebody I know actually drove by and found out there was no such address, actually at all. But there are 25 cases that shared this, the same, at least if we could find, that shared the same boilerplate. 15 of them included addresses, because presumably the court's required addresses. For every one of the 15, the defendant could not be found at that address. And in fact, the court ultimately found, in this case, after Paula and Levy from Public Citizen, who had a relationship with the Get Out Of Debt.org organization that represented them before, went in to get this voided on the grounds that it was a fraud on the court. The court said it was in fact a fraud on the court, perpetrated by a reputation management outfit called Profile Defenders, and a guy named Richard Rudy, who ran it, and ordered Rudy to pay $75,000 in sanctions for this. But this is just this one case. Again, there apparently are 24 others throughout the country that have what seemed to be exactly the same pattern. Now, one of the cases that was filed by Richard Rudy was on behalf of a guy named Daniel Warner. And Daniel Warner is a lawyer. Now, these cases were all prosaic cases, and you might say, well, they're prosaic cases, but a lawyer would probably know better than to have a case against a fake defendant. Well, Daniel Warner is a lawyer, and so he had seemed to have this relationship with Rudy, which meant that when I saw this order in the Lumen database that I was scanning through at the time, I was a little suspicious of Daniel Warner. Here, he's a lawyer, not the plaintiff. This case is Chinakvievansky. Is this really legit? Well, it's notarized, right? It actually, unlike the other things, it's actually notarized by a notary in Colorado. It's in Arizona case, but it's possible. So here is the notary stamp. Anybody notice anything interesting by the notary stamp? The date? August 8, 2016? Yeah, so it's subscribed, sworn and acknowledged on August 8, 2016, so the last day of that. But you know what happens if you're a notary, you'll do business in your last day in office as well as in your first day, right? 2012, one, two, three, four, five, six, seven. What are the odds of that? And in fact, if you look up the sample notary stamp on the Colorado Secretary of State, it's the same date, the same notary ID, at least whoever faked it did not copy John Q. Sample. And just to be sure, I actually looked up Samantha Pierce in the online search which Colorado provides, which not all states do, and she doesn't exist. Now the Arizona State Bar is going after Kelly, Warner and his partner Kelly, for basically at least five different cases in which either there were, and two of them, there were apparently fortunateerizations. And in three others, it was just defendants who do not seem to exist. By the way, their defense is they didn't know. Their defense was somebody came to them, the client came to them, and gave them all these documents they didn't check. Which by the way is not a ridiculous position, at least into any particular case. I think a lot of times you're a lawyer, the client says, look, I just need you to file this. I've already have the stipulation from the defendant. You're not going to go through and fly spec it. At least, well, I certainly will from now on, now that the scales have fallen from my eyes. It does seem a little odd this happened to them five times at least. Plus also, being easily duped is not exactly the trait we want to see from lawyers. But it's conceivable that they are actually, they were the victims of this as well. But it just shows that there are real security holes in this process. So this is Arnstein v. Trent's specific software, PPT, District Court for the Southern District of New York. The real plaintiff, real defendant, there's a real order issued in this case. Apparently the material really was libelous. But the order listed a whole bunch of URLs and Arnstein didn't seem to think that was enough. So he submitted 11 copies of the order, with dates changed, and URLs changed. Without going through the little technicality of actually getting a judge to sign off on the amended judgment. So basically he created 11 forgeries of this court order. And he has been since convicted of, he pleaded guilty to forgery, federal forgery and federal district court. I have so far found the first set of things. I found basically about 25 to 40 cases depending on where you put some suspicious ones. That fit the first category, about 25 that fit the second category, maybe 30 at least that fit the second category, and then 70 outright forgeries. And then a bunch of other things. And those are just the ones that I found. I mean imagine that instead of having the notary ID and a fake notary's name, what happened was that whoever was faking it found the name of a real notary, included the name and the ID and the expiration date for that real notary. I mean it would have been possible for me or for somebody else to call up the notary and say could you check your records to make sure that you properly notarized it. In fact, notaries are supposed to do that if you ask them and California the rule is you have to submit a written request and a fee of 30 cents. And the notary has to send you a copy of the notary log book for that. But I wouldn't have done that. So who knows how many other shenanigans of various sorts there were that just were done to crafty away from me to notice. The moral, every system attracts parasites. We have forged orders, we have real orders with fake defendants, real orders, real defendants who aren't really the authors. We have some other examples of real orders with default judgments, but no serious attempt to find a defendant. There was one in particular where the defendant was a well-known organization. There was a site that put up profiles of sex offenders. And it was perfectly clear that they could have tracked them down very easily, but the plaintiff did not want to because if they tracked them down and sued them then they would have defended themselves. But even without fraud, you have default judgments, which might be legit but might not be. There's no real reason to think that they would provide accurate information. You have stipulations where again maybe the defendant says yes, indeed, I libeled the plaintiff because the defendant did libel the plaintiff, or maybe the defendant really does believe the story, but doesn't want to litigate further. There was one case involving Megan Welter, who was in the news a while back because she became a cheerleader for the Arizona Cardinals after having finished her tour of duty in the Army in, I think, Iraq and Afghanistan. So I said this is a good story, but then there was another story a couple of years later where she was arrested for attacking her then boyfriend. I wouldn't say Ryan McMahon was his name. And then what happens is the Kelly Warner firm, another lawyer at the firm, gets an order from a court in which essentially McMahon says, no, no, no, I stipulated that this was false. And then he tries to use that to de-index articles in ESPN, CNN, NBC, all these mainstream sites which report on the arrest, which is wrong in all sorts of ways, but one of them is if you listen to the hearing. It's pretty clear that McMahon, essentially he's standing by his story, Gesundheit, but out of whether misplaced or non-misplaced chivalry, he sort of figures, you know, I want to give Walter another chance. So presumably he was angry enough at her and rightly so if she indeed attacked him when she did attack him to call the police, but now he figures, you know, she's paid her dues. And it's actually technically perjury, I think, so you should fault him some for it too, but I think his view is just, you know, this is an acceptable thing to do in order to cut somebody some extra slack. But it's a reminder that a lot of these stipulations may have no real connection to the truth. Or you could have an uncounseled defendant who tries to prove the case, but doesn't have a lawyer who could help him do that. Civil procedure experts sometimes tell us that our civil justice system is set up for dispute resolution and not for truth finding. And I think that's right. And I think that's often acceptable when we're talking about a dispute between two parties where the result binds only one of the parties. That if you stipulate to something, well, you know, maybe it's false, but you are essentially bound to go along with what you stipulate. But now once you start using that as a means of trying to control behavior of third parties, whether coercive or even just kind of to try to get them to do the right thing and enforce the order, there's no real reason to think that there's any truth to the order. And yet there is a genuine, huge problem out there of people being liable and spending a lot of money to go to court and try to get these orders. And sometimes default judgment, you can't fault the plaintiff in many situations if the defendant can't be found. What else are you going to get? So this is a real problem. I'm just not sure like any of the solutions so far introduced. Similar things are happening with regard to privacy. We're seeing criminalization of the privacy tort. We're seeing some specific bans on particular kinds of speech like non-consensual porn, like sometimes supposedly crime facilitating personal information such as bank account information and home address information. Incidentally, the home address cases when they've come to court have been struck down in First Amendment grounds. But we're seeing something very similar. Whatever can be done through cases like the Gawker case where you've got a lawsuit against a big established media outlet that's got money, maybe not enough to satisfy the verdict, but at least enough to make the litigation potentially viable, that just doesn't work. So if you really want to go after some of these privacy intrusions, whether you ought to be able to or not, you need some remedy other than damages. So let me close. What we're seeing is technological change not so much leading to new rules. Sometimes that happens with Section 230, but by and large the First Amendment rules online are the same as elsewhere. See Packingham, see Reno, the ACLU and the like. But what's happening is technological change is leading to enforceability change. And what's happening is the courts who want to see viable remedies for the wrongs are coming up with new or different legal rules. It's a lot of it is a response to judgment-proof speakers. It's bottom-up and it's under the radar. If it hadn't been for the Lumen database, I would not have seen almost any of this. So that's the problem. I'd love to hear the solution. Thank you so much. Okay, let's roll. And just a reminder that you're being recorded, so please speak into the mic. So this is fantastic work. Whether that's my client and my co-counsel. We've filed briefs together and sometimes representing people and sometimes they represented her. It's been such a pleasure. So I guess I sort of heard you to suggest that you might have some ideas about non-criminal enforcement against judgment-proof defendants at some points. I'd love to hear you talk more about that. And then I also would love to hear if you've been able to do anything finding out about how often private entities sent these court orders, right? So you have the stuff for Google because it contributes to the Lumen database. Facebook, I know there's a group that I represent and we get fake notices. So the first thing, I don't know what the solution is. I'm not wild about criminal libel law. I think it has real problems to it and it had real chilling effects that may be excessive at the same time. Civil libel law has these effects. It has substantial chilling effects too. And it may be that, especially as to narrow regimes where it's better defined than just, oh, so just step back, the real chilling effect from criminal libel law is if I say something about you, I may not be sure whether it's true or false. I may really sincerely believe that it's true, but I may recognize that maybe a jury will find otherwise. On the other hand, if I'm impersonating you, I am pretty sure that I'm not actually you, except in highly unusual circumstances. So I think in those kinds of situations, I think it actually makes sense to have some narrow criminal libel-y type things. I also think that the injunctions that properly limited injunctions are potentially viable remedies. But at the same time, I don't want to overstate their effectiveness because often the defendant just isn't there to have an order effectively joined against them. There's one particular case which, best I can tell, involves a really nasty poster who had posted all sorts of things about this woman in Ohio, and then the woman got an order against her, both were women, against the poster, and eventually what ultimately got the poster to take this down is she really was threatened with jail by a judge this time in Florida because I think they ended up having to enforce the order in Florida because she'd moved to Florida, threatened with jail, and eventually she said, okay, fine, I'll take the stuff down. And sometimes maybe that's what it takes. And injunctions have a somewhat narrow or at least chilling effect. But if these solve the problem, it'll be tiny corners of the problem. Your second question I think is a great one. The problem is with a lot of these private organizations, I can't get anything out of them. I try to get in touch with some people at Facebook and I got a response that we don't really keep them archived and whether that's actually true or whether that's sort of a polite way of essentially saying, look, we don't want to... Pardon? Funny, funny, funny. That's right, that's right. I don't know. I tried to get some stuff out of America Online, which I hear still exists, and very, very hard to get. Every so often I've gotten a few things from here and there, but by and large, this could just be the tip of the iceberg or maybe not the tip of the iceberg because Google is a very large chunk of the iceberg. But there may be a lot of other stuff out there that just nobody knows about Lumen or they decided deliberately not to post it to Lumen and I'm not getting. If any of you have access to more depositories of these, please let me know. I would love to get them. Professor, while the audience is musing, I'm going to use the moderator's privilege to ask a little bit about the subcategory of orders requiring expungement. Right, right. I see quite a lot of those and it's a problem in and of itself. Right. So far I've talked mostly about orders that have to do with libel judgments and a few have to do with either disclosure of private facts judgments or sometimes criminal harassment cases. But there's also another set of things that Google gets under the court order's rubric and those are expungement orders. Now one of them, so let me give you an example of why we should be worried about that. Derek Collier-Thoreworth. Derek Collier-Thoreworth was a constable, deputy constable in Harris County, Texas. So as I understand it, it is kind of a, it's sort of an extra law enforcement agency that doesn't have a very great reputation there. The sense is that the Houston PD is the more elite organization and there's a sheriff's department that constable's organization is also there but not very good. In any event, Collier-Thoreworth was apparently not very good indeed. He was prosecuted for beating up an arrestee whom he had handcuffed. And there was a story on a local television station in Houston about this. Then what happens is Thorworth apparently pleads guilty and then a year later gets the conviction expunged. Or excuse me, not expunged, it's sealed. It's a somewhat different thing. So expunged means it's still available for any future criminal prosecution system but sealed to the public. Pardon? Not overturned, sealed. And this is not uncommon. For courts to have a policy or states to have a policy or people some time after the end of their term and it could be immediately after for misdemeanors and usually some more time after for felonies to get the record either sealed or expunged. Sometimes it's associated with a situation where the person never pleads guilty but it's deferred adjudication. So it's essentially it's probation without a guilty plea. So you say, I'm going to go in for deferred adjudication and if I keep my nose clean for the next two years then in that case you're going to wipe out them. Now whether or not this is a good idea to give people a second chance this way is an interesting question. I'm not terribly fond of that because a second chance suggests a second chance to do good it also suggests a second chance to do bad. Presumably I would want to know what Thorworth had done. Especially because when he submits a takedown request to Google he says, I would like you to deindex this television station story about his guilty plea because he says, I still have an active peace officer's license and this is interfering with my ability to get jobs and I would think it should interfere with his ability to get jobs but that's just retrograde me. So in any event the interesting thing is the order was itself sealed. So I couldn't check even to make sure that there was in fact such an order but on top of that I got some indication that the order purported to actually apply to the television station and after knocking on off doors eventually I actually got after the order was vacated because it's credit the television station fought it indeed the court had issued an order ordering the television station to remove the story about him from the site. So this is American right to be forgotten except without any constitutional or statutory authorization. So in any event, so this is an extreme example but you see lots of other situations where expungement orders are submitted to Google without any sense that there's an obligation on the part of the news entity or some other site often these are mug shots websites to actually get it taken down but just the judgment on the government's part that we're going to remove this from our records or seal it in our records. Now as I understand that Google's position is not to take these things down at all and excuse me that is to say not to take anything down based on expungement orders because as opposed to a libel order the finding of the speech is constitutionally unprotected and it's false here there is no such finding and there's no order addressed to anybody only to the government itself anybody outside the government. Nonetheless people are trying to submit it there of course what I want to do with some of them is I want to go and check to see if they're authentic but the problem is that they're expunged so I call up the court and they say well there is no such record but that is completely consistent with the order being expunged as it is with the order never having existed in the first place or the case being the conviction being expunged through the case being sealed so that means if Google wanted to possibly de-index things based on that or if let's say some newspaper got a copy of this order with a request to hide one of its articles and wanted to do that but wanted to do the right thing and check to see if it's legit they couldn't do that because the court system by assuming that this was a valid order has hidden the order so in a sense this tells us a little bit about design in a world where people become suspicious of court orders certainly that's what happened to me I hope it happened to you too whenever somebody shows you a court order don't believe it until you actually get it verified but once people become suspicious about purported court orders then I think it's really important to make sure that you don't over expunge that you don't expunge or seal things whether this is legitimate expungement or a seal or whether it's a fortune yes but I'm sorry there's a mic coming to you Do you see a good and constitutional way to distinguish between a legitimate news organization like that TV station and a mugshot site whose purpose as far as I can tell is extortion Right so I wrote an article back in 2012 saying that there is no difference for First Amendment purposes in a press organization and a non-press organization in the sense of based on their line of business that all of us have the rights under the free press clause the freedom of the press isn't the freedom of a business category called the press it's the freedom of all of us to use mass communication technology now it's an interesting question to what extent blackmail law can indeed authorize certain kinds of restrictions on a particular business model not necessarily a non-press organization but on organizations who are in the line of business of essentially threatening I will keep this embarrassing material up unless you pay me money Right You can imagine a television station getting into the extortion racket also Right I think it's possible certainly I think somebody could be prosecuted for that Interesting questions whether you can the continued posting of that kind of material and there is of course the classic question of why blackmail is illegal and why blackmail bans are constitutional and there have been some constraints in blackmail law in the name of the First Amendment but I do think that that kind of model is pretty clearly prohibitable under existing blackmail law Pardon So the problem is a lot of these statutes are actually labeled extortion statutes extortion statutes extortion also includes pay me money or I'll burn down your business I like blackmail because it highlights the informational nature of the transaction because that's what's really going on here The interesting thing is at least some of these mugshot sites their business model might just be advertising support so they say no we're not offering to take this down because we want it up because people will search for your name and they'll start a site and they'll see the ad So while there have been some attempts some states have actually required mugshot sites to take down the people's names and photos once a record has been expunged I actually don't think it's constitutional because there's no requirement of a showing of extortion there but certainly I can see some people are upset whether or not the record has been expunged by this mugshot site being there and some legislatures might want to do that but I think in the absence of this kind of quid pro quo that you mentioned I think they would be just as protected as a newspaper's criminal blotter So when my previous employer was hit with a defamation suit over publishing sealed court decision California's anti-slap law saved us and I'm curious as to whether there's a role for anti-slap into addressing the problems that you've raised I like anti-slap statutes I think anti-slap statutes are interesting because I remember when I was studying in law school I took a class in CIFPRO seminar in CIFPRO and one of the things we're talking about is how the retreat from the old forms of action was a means of making civil procedure trans-substantive that you wouldn't have one rite for trespass and one rite for negligence each with its own procedure but just have one general thing and anti-slap laws are an example of how the law is becoming procedures becoming non-trans-substantive that there is anti-slap laws really do set up a different kind of procedural system for speech torts than is applicable for other causes of action and I think in many ways that's good I also think that it will have very little to do with any of these things here All of the problems that I believe every single one of the frauds or even borderline frauds that I've seen have involved situations where there was not a defendant who was willing to really aggressively litigate this. Either you had no defendant at all because there was no case you had no defendant because the defendant was fake you had a defendant who was a straw defendant who was unrelated to what's going on or you had a default judgment or you had a situation where the defendant was colluding in other ways the problem of how you make it easier for people to fight illegitimate libel claims is a really serious problem that anti-slap laws I think help promote at modest cost although there is some cost to them but I think the problem of how you deal with fraudulent problems or as to criminal libel and injunction is a problem of how you deal with real libels that are brought by defendants who are judgment proof and if they file an anti-slap motion first of all they probably wouldn't know how to do it and second if they do they would lose it and they're right to lose it because they are in the wrong but nonetheless that doesn't help the plaintiff figure out how to get a viable remedy against them so I think it's a great it's an important topic anti-slap laws I wish more jurisdictions I wish there was one at the federal level but I don't think it would solve any of these problems it solves others but not these so I think maybe if there is one we have time for one more question well then I hope you will join me in thanking Thank you very much