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Tuesday, March 17, 2009

Obscenities Fly In "Skank" Hearing

This is the case that gave birth to the Broward Law Blog, so we pick up in its entirety the post by Chris Thompson from last week. This is a story so big that it was covered by the AP, the BBC and the worldwide press but the censors at JAABLOG removed the column I wrote about it because they were worried it might chill the comments of its readers, so they chilled the comments of one of its authors. They can put their head in the sand, but the story is today in the sunlight.

Joshua Plaut slumped in the back of Manhattan's Supreme Court today, waiting for the judge and seemingly willing this whole affair to go away quietly. He hailed from the New York powerhouse law firm Wilson Sonsini, and Google was paying him top dollar to do as little as possible. The search giant, whose founders cling to their "Don't be evil" motto like guns and religion, had found itself in the middle of a tabloid frenzy, a courtroom drama pitting a statuesque Vogue model against an anonymous blogger who had decided the world needed to know she was nothing but a dried-up strumpet. For a company that prides itself on ennobling the world in between bouts of record-breaking quarterly profits, this was grief Google didn't need.

Last August, someone set up a Google blogger account and used it to create the blog Skanks in NYC, complete with photographs of New York model Liskula Cohen partying with her friends, as well as a few captioned observations about her sex life, age, and mental state. A horrified Cohen promptly got herself a lawyer and sued Google, seeking to force the company to divulge all identifying information the blogger provided when he or she registered the blog. The anonymous defamer's attorneys challenged the suit, insisting that federal law protects their client's online speech. Today, both sides met in court to duke it out.

The courtroom scene was Google's worst nightmare. On the one hand, the company has come under fire for collecting personal information from its users and storing it for months; if Google gave up the blogger too eagerly, its worst critics would have another barb with which to accuse it of playing fast and loose with its customers' privacy. On the other hand, who wants to be seen protecting some nasty, small-minded, cowardly gossip?

Reporters from the BBC, the Associated Press, and New York's most lurid tabloids packed the room, while cameramen waited to catch the players on the steps outside. Cohen sat quietly to the side, topping 6 feet in high heels and a black overcoat, tapping out text messages while waiting for Justice Joan Madden to arrive. Her lawyer consulted his brief by her side, and the blogger's legal army bivouacked on the opposite end of the court. Joshua Plaut was surrounded by a legal and media circus on all sides, doing his best to keep Google's role in this affair as small as possible. When Madden called the lawyers to the bench, Plaut took the first opportunity he had to declare, "Google will comply with the court's determination," sit down, and shut up.

Unfortunately, the show went on just fine without him. As Cohen leaned forward, her lawyer Steven Wagner argued that the blog's slurs were defamatory and actionable. Madden asked which slurs he was referring to, and Wagner had no choice but to read them aloud to the room:
"Nothing like opening wide to take that thing into my mouth AGAIN," he read, referring to a photograph of Cohen's face near a man's groin.

"She's a psychotic, lying, whoring, still going to clubs at her age, skank."
"She may have been hot 10 years ago, but is it really attractive to watch this old hag straddle dudes in a nightclub or lounge?"

As her lawyer read, Cohen buried her face in her hands and heaved great, mewling sobs. Wagner struggled on. "My client is a professional model," he insisted. "These words have an impact on her career. ... It is a denigration of her business, and it affects the willingness of people to hire her."

But can blog readers reasonably conclude that Cohen really was an elderly, mentally ill prostitute? Unless Wagner could demonstrate that the blog's remarks constituted factually verifiable statements, the speech was protected, and so was the anonymity. Wagner rolled out his fanciest lawyerin', arguing that when the anonymous blogger suggested that Cohen was eager to indulge in oral sex again, he or she implied facts about Cohen's sexual history, and such language was more than just an unflattering caption.

Anne Salisbury, the anonymous defamer's attorney, was having none of this. Sadly, she said, nasty remarks like these are the coin of the realm in the Internet, and her client did nothing more than descend into the more subterranean districts of protected speech. The very title Skanks in NYC tips off the reader that the site is nothing but opinion and hyperbole. Unpleasant nonfactual commentary is clearly protected; just look at the Web site Hot Chicks With Douchebags, which successfully fought off a similar suit. "That is the reality today," she concluded.

Blowjobs, douche bags, and whores—that's what Google had to hear associated with its brand today. Is it any wonder that Google's lawyer refused to talk, packed his bags, and shot out of court as soon as Madden announced she would issue a ruling in the next few weeks?

But this may only become more common for Google, as more and more people sue to pierce the scrim of online anonymity. Last year, the Indian government forced Google to share the personal information of an Orkut user who defamed politician Sonia Gandhi; the man was subsequently arrested and criminally charged. Google gave personal Orkut information to Brazilian officials investigating a pedophile ring, but not without a fight. Two former Yale law students are suing the law student forum AutoAdmit, in an effort to force it to reveal the identities of fellow students who spread nasty rumors about their sex lives, rumors that live on in every Google search of the two women. If they succeed, the case could establish new precedents that will ripple across the online world.

Clearly, Google has a lot of new potential headaches waiting for it. But today, it just had to hear its name connected with a tawdry little spat. Outside the courtroom, in a particularly bizarre scene, attorney Anne Salisbury ran through the list of protected slurs: asshole, sleazebag, slime, chickenshit. As she repeated her claim that Skanks in NYC clearly telegraphed its hyperbole, one reporter joked, "Yeah, but what if you're trying to find skanks in New York City?"

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