May 24th, 2012

Banning Anonymous Speech: Reality Mimics April Fool’s Gag

Really, who’d a thunk it? On April 1st I went live with a gag about Joe Lieberman proposing to ban anonymous speech on the Internet. I used a new blog: McIntyre v. Ohio to run it anonymously. Lots of fun was had, and I did a deconstruction of the hoax the day after, but no journalists were actually taken in.

But were real life politicians actually suckered into it? Or did they come up with this idea on his own?

Two bills  now pending in the New York State Senate and Assembly propose to ban anonymous speech. Yes, this would be in flagrant disregard of prior constitutional case law on the First Amendment. And that primary case is McIntyre v. Ohio for which my “other blog” is named.

The legislation — conjured due to concerns over cyber-bullying — would require anyone with a website:

“upon request remove any comments posted on his or her web site by an anonymous poster unless such anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate.” By “web site,” the bill means just what it seems to: Any New York-based website, including “social networks, blogs forums, message boards or any other discussion site where people can hold conversations in the form of posted messages.”

The bills will go nowhere, of course, because the First Amendment allows anonymous speech. For a good read on the long and deep history of such speech in the United States, read the concurring opinion of Justice Clarence Thomas in McIntyre.

For more on the subject:

New York to Publius: You’re Done Bully Boy (Simple Justice)

The New York Bill that Would Ban Anonymous Online Speech (Time)

Laughable Online Censorship Attempt Won’t Last a New York Minute (Huffington Post)

As for those that were in on my April Fool’s gag, they deserve once again their due credit for assisting:

Joe Lieberman v. the Internet: It’s not over. (Adam B. @ Daily Kos)

End of Section 230 Protection for Bloggers? (PattericoPatterico’s Pontifications)

Thanks To Senator Lieberman, You Guys Are Going To Get Me Sued (KenPopehat)

Dear Commenters: We Can’t Protect You Anymore (MystalAbove the Law)

Anti-terrorism law threatens First amendment? (Frank Point of Law)

Section 230 Amendment strips websites of immunity from anonymous commenters(RandazzaLegal Satyricon)

A Free Speech Disaster — The End of Anonymous Commenting? (CubanThe Cuban Revolution)

Lieberman to Internet: You’re Fungus (Greenfield Simple Justice)

Anonymous Commenting Legislation By Joe Lieberman? (TannebaumMy Law License)

Blind-Squirrel Lieberman Finds Acorn (BennettDefending People)

A One-Two-Punch Against Free Speech (DraughnWindy Pundit)

The Community You Create (Zubon Kill Ten Rats)

First Amendment Malpractice (Barovick at NY Medical Malpractice Law)

Will Free Speech in America Meet Its Match In Lieberman? (WiseWise Law Blog)



May 11th, 2012

Travolta Sex Cases and Anonymity

Even if you don’t follow salacious Hollywood news, it’s hard to miss the stories coming out of John Travolta being sued for sexually harrassing masseuses. A couple have already sued him, under cover of anonymity.

We’ve seen this story play out before: A John or Jane Doe brings a case in federal court on some sensitive subject and asks to be anonymous. But just asking for anonymity is not the same as keeping it.

I hit this story the first time in 2006 when a woman sued in a New York federal court over a sexual assault. She wanted to stay anonymous. The court wouldn’t have it.

It came up again recently with an actress sued IMDb for violating her privacy by using her credit card to glean her date of birth — a sensitive issue in Hollywood due to age discrimination for women over 40 — and used the information to make edits to her online acting profile. Amazon owns IMDb, and she claimed that this is where the info came from. I predicted she would not keep that anonymity. And, in fact, she lost that fight and re-filed under her real name.

So now we come to the John Travolta accusers. If they are bringing suit in federal court within the 9th Circuit (see the complaint), which encompasses California, I think these people will also lose in their bid to stay anonymous. And it will be for the same reasons I set forth in the IMDb case:

In this circuit, we allow parties to use pseudonyms in the “unusual case” when nondisclosure of the party’s identity “is necessary … to protect a person from harassment, injury, ridicule or personal embarrassment.”

“a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party’s need for anonymity outweighs  prejudice to the opposing party and  the public’s interest in knowing the party’s identity.” Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir.2000).

So, if the accusers come out of the woodwork with claims, they had best be strong enough to withstand the media maelstrom if they are bringing those actions in federal court.


January 8th, 2012

Previously Anonymous Actress Suing IMDb/Amazon Refiles Suit

Junie Hoang has agreed to surrender her anonymity to sue IMDb/Amazon for invasion of privacy

Back in November, a suit made national headlines when an anonymous actress sued the Internet Movie Database (owned by Amazon) for invading her privacy. She alleged that Amazon had her credit card information to find her date of birth, and gave it to IMDb to put up on its site. This issue was important given the rampant discrimination in Hollywood against actresses who reach the age of 40. She claimed that IMDb got the date of birth from Amazon.

The lawsuit sounds in fraud and breach of contract given various privacy and consumer protection laws, as well as Amazon’s agreement to handle personal information “carefully and sensibly.”

I predicted back then that Amazon’s lawyers would attack the concept of anonymity, under the theory that the actress would drop the suit if forced to reveal her name. And I said Amazon would win that fight as federal courts have a very high bar for anonymous suits.

Amazon did exactly that, and as I predicted, they persevered and the judge dismissed the suit forcing her to either drop the matter or go public.

And actress Huang Hoang, using the stage name Junie Hoang, likely surprised the hell out of Amazon’s lawyers  by telling them, in substance, vade et caca in pilleum et ipse traheatur super aures tuo (go shit in a hat and pull it down over your ears).  She decided to refile suit under her real name. It’s nice to see that she has the courage of her convictions.

By the way, the underlying basis for why Ms. Hoang wanted to keep her age private, and was outraged at what she believes was the breach of her privacy is here:

Women over 40 make up 24.3 percent of the U.S. population, but a casting analysis by the Screen Actors Guild showed actresses over 40 get just 12.5 percent of roles for television and film. Men of that age are also about a quarter of the population, but nearly equal their ranks in casting.



November 14th, 2011

IMDb Attacks Anonymity of Actress that Sued For Publishing Her Age

Last month a story rocketed around the web of an actress suing the Internet Movie Database (owned by, claiming it used credit card information to find her birth date and publish it on the IMDb site.  Most stories left the invasion of privacy issue alone and focused on an actress suing to keep her age confidential – she says that ageism in Hollywood is a big problem for actresses as they approach 40.

I used my site, however, to talk about whether or not a court would permit her to proceed anonymously, a subject then picked up by The Hollywood Reporter.

And now The Hollywood Reporter follows up with a story saying that IMDb is doing exactly as I  predicted, attacking her anonymity. I bet there is no doubt among the strategists that if she can be forced to reveal her identity,  the suit will be dropped and IMDb will never have to confront the issue of privacy issues and credit cards.

According to THR, IMDb has now filed a nasty motion to dismiss, believing that this actress is the same as another that made a similar complaint:

she first tried to get the service to post a false birthdate so she could fool potential Hollywood employers into thinking she was younger than she actually is. Now a judge is being asked to dismiss the lawsuit so as to not perpetuate a fraud on the public.

Oooooh. Fight back against the actress with a charge of trying to defraud the public. Correct me if I’m wrong, but isn’t that what Hollywood and actors do? Does anyone really believe a giant monkey will climb the Empire State Building? That there’s a giant intergalactic war going on? That Joanie really loves Chachi?

This is the way IMDb approaches the  issue in the Court:

“Truth and justice are philosophical pillars of this Court. The perpetuation of fraud, even for an actor’s career, is inconsistent with these principals. Plaintiff’s attempt to manipulate the federal court system so she can censor iMDb’s display of her birth date and pretend to the world that she is not 40 years old is selfish, contrary to the public interest and a frivolous abuse of this Court’s resources.”

Of course, the actress wasn’t trying to perpetuate a fraud on the court, but trying to stop an invasion of privacy regarding her credit card information. So that is an interesting shift of the real issue.

But not everything is serious in the filing, as THR reports:

The company also claims to be taking the moral high ground in protecting entertainment consumers from an actress who wants to “more easily deceive the public and prospective employers about her age and potentially be considered for more roles.”

Of course, I think that IMDb is being funny when it talks about the public being deceived by an actress, whose very training is doing just that: pretending to be someone else. It’s sort of what makes Hollywood go round and round.

One particularly odd thing about the synopsis of the filing: IMDb is claiming an attempted fraud, yet they claim not to know who the actress actually is. They only think it is someone else who made a similar complaint.

Anyway, when the fighting is all done, I think the actress will lose her bid to be anonymous, but it will have nothing to do with trying to perpetuate frauds. It will be because this type of case doesn’t meet the high bar set for seeking anonymity that I originally discussed.


October 18th, 2011

Actress Wants Anonymity in Suit Against Amazon for Revealing Age (This is Why She Won’t Keep It)

A Texas actress, who wishes to remain anonymous, has sued for revealing her age on the company’s Internet Movie Database. The claim? That Amazon poached her date of birth based on credit card information and published it on IMDb, and that revelations about her age have hindered her ability to get work as she approaches 40. (Suit here)

Leaving aside the merits of the case — which raises interesting questions at least from a privacy standpoint if that is where the date of birth came from — can the actress bring her suit in federal court and remain anonymous while doing so?

The question of a plaintiff wanting to remain anonymous usually comes up in the context of sexual assault cases. Bringing suit on behalf of a “Jane Doe” is something I’ve done in the past, as have many, many others. Because it is one thing to be sexually assaulted. But exposing those details in such a manner that casual court voyeurs also get to see it leaves many people so uncomfortable that they feel they would be victimized a second time just by bringing suit if their real names were used. Thus, the name is kept out of the courthouse files.

Unless you get the wrong judge. Back in late 2006 I wrote about a sexual assault case that landed on the front page of the New York Law Journal, because a judge in the Southern District of New York rejected the use of the Jane Doe pseudonym. I thought the decision was wrongly decided, but no one has given me a black robe so I don’t get to vote.

Which brings us back to the actress that sued Amazon. The smart money from my corner says that, if Amazon makes the motion, the court will not allow the case to proceed in this fashion, in which case she will be forced to disclose her identity or drop the matter. (This matter was first reported on Twitter by @Eric Goldman)

Now this particular case was brought in Seattle, which is part of the area covered by the Court of Appeals for the Ninth Circuit. And this is the Ninth Circuit rule on the subject:

In this circuit, we allow parties to use pseudonyms in the “unusual case” when nondisclosure of the party’s identity “is necessary … to protect a person from harassment, injury, ridicule or personal embarrassment.”

“a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party’s need for anonymity outweighs  prejudice to the opposing party and  the public’s interest in knowing the party’s identity.” Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir.2000).

There seems to be little chance, in my opinion, that this actress stays anonymous if she wants to keep litigating.

Of course, the guessing game has started anyway as to who it is:

Which Actress Is Suing IMDb for Revealing Her Age? (Gawker)


Actress Sues Amazon For Publishing Her Age (The Guardian)