Above The Law Sued

The Above The Law blog has been sued in federal court in the Southern District of Florida by University of Miami law professor Donald Marvin Jones.

Professor Jones made headlines after being arrested on charges of soliciting a prostitute to which he has pleaded not guilty, and before that for a bogus arrest which was dropped by police. He takes particularly umbrage to the racially derogatory tone of the pieces. He is an African-American constitutional law expert, and alleges that he is routinely the subject of hate mail from anti-civil rights advocates.

The Complaint alleges the privacy torts of false light and invasion of privacy.

The false light claim arises from a portray of him as "a dope dealer, pimp and criminal," saying he has an arrest record despite the fact that no charges were filed in his 2007 arrest and the police purged him from their arrest record database, and for calling him a "nutty professor."

He alleges that the invasion of privacy claim involves a situation where he was simply "driving while black" in a nice car in a bad part of town, that the matter was dropped by police leaving him with no criminal record, but that the blog continues to portray him as a "criminal."

As a third count, he claims copyright infringement for the website's use of a copy of his University of Miami website photograph without his permission.

He demands $2 million in non-economic damages (enumerated as compensatory in one place and damage to his reputation in another) and $20 million in punitive damages.

Analysis

It isn't obvious that the first two claims asserted really amount to invasions of privacy as opposed to more traditional defamation claims.

There are also important choice of law issues in this case. Is the case governed by the New York forum where Above The Law is based, or the Florida forum where the Professor is domiciled. This may matter quite a bit, because the law of privacy varies quite a bit from state to state, although in the case of the false light claim, it is a distinction without a difference.

In a diversity action in a federal court in Florida, Florida's choice of law rules would apply, and if Florida's law was held to apply, the legal question of the validity of a false light claim might even be certified to the Florida Supreme Court to resolve, as it is an important unresolved question of state law. The general rule is that the place of publication governs in the case of a newspaper published in a single state, but a blog read nationally may look more like a newspaper published generally, in which case the mushy "state wit the most significant relationship" test applies.

As of 2002, false light had been rejected as a valid cause of action in ten states, including New York, while the issue had not been resolved in Florida:

Ten states -- Colorado, Massachusetts, Minnesota, Missouri, New York, North Carolina, Ohio, Texas, Virginia and Wisconsin -- have expressly rejected false light as a viable claim when recovery is sought for untrue statements. Some of those states, such as Virginia, have statutes that dictate what type of privacy claims may be made and that specifically leave out false light. In the other states, the highest courts have determined, as a matter of common law, that false light will not exist in their state.

In 11 states, supreme courts have not had an opportunity to rule on whether false light is recognized. In those states -- Alaska, Florida, Hawaii, Michigan, North Dakota, Oregon, South Carolina, South Dakota, Vermont, Washington and Wyoming -- journalists should assume that courts will hear claims against the media for false light. In South Carolina and Washington, false light claims are less likely to succeed, as lower courts have predicted that those states' supreme courts would not recognize such claims.

The remaining 29 states and the District of Columbia accept false light as a viable claim.

Florida's Supreme Court joined the chorus of states rejecting a false light claim separate from defamation a little more than a year ago in October of 2008.

Invasion of privacy claims are also rare in the absence of an express or implied duty on the part of the person blabbing to maintain confidentiality, or a confidential relationship. Above the Law doesn't have that kind of relationship to the Professor. Either tips the blog received, or newspaper coverage provided its description. And, it isn't at all clear that merely republishing information that reveals truth facts about a person obtained through a breach of privacy is a basis for liability.

But, this claim may not stand as a privacy tort even if the allegations are true, a determination that depends upon state law and in turn upon which state law applies.

To my knowledge, Florida hasn't outright rejected the public disclosure of private facts cause of action. But, a case involving the videotape of a man being arrested in his underwear was held to be not within the scope of the tort. The U.S. Supreme Court held in a Florida case that publication of a rape victim's name in a newspaper in violation of an express state law forbidding newspapers from doing this and in violation of the newspaper's own policies, could not constitutionally support a public disclosure of private facts claim, so it is hard to see how Above the Law's disclosure could be a violation in this case. The statute of limitations in Florida for disclosure of private facts is four years.

New York does not recognize a suit for public disclosure of private facts.

Even if the case had been pleaded as a defamation case, the Professor's case is very weak, because the Above the Law posts have a credible factual basis rather than being published with reckless disregard for the truth. One contains a screen print from a public database, a second has an image of an incident report, a third has a school newspaper report with quotations from people likely to have relevant knowledge, and the last has a non-realistic graphic likely to be protected as a spoof or parody, and suit based on the image may also be barred by Section 230 (providing considerable additional analysis as well).

Statute of limitations concerns also apply to the defamation claims. The suit was filed October 27, 2009, within two years of the original publication of the last of the four Above The Law blog posts, but more than two years after the first three blog posts. The statute of limitations for defamation claims in Florida is two years. New York has a one year statute of limitations for defamation claims.

The Florida venue also raised the issue of jurisdiction and venue. Generally, jurisdiction is available in Florida only when the defendant has minimal contacts with the Florida, something that has produced a mixed bag of precedents with regard to blogs distributed widely (see e.g., here and here and here), and venue is proper where the defendant resides (New York) or where the tort occurred (cyberspace including republication in Florida). It isn't obvious that the fact that a blog can be read in Florida and discusses Florida people and events makes a Florida venue proper.

As for the copyright claim, it isn't clear that the photo actually belongs to the Professor, as opposed to the University of Miami. It was probably taken by their public relations department at University of Miami expense as work for hire of the photographer. So, a copyright claim, if there is one, probably belongs to the University rather than to the Professor. And, there is a good argument that it is fair use to use a P.R. photograph provided to the general public by one's employer. Also, while copyrights arise automatically, in the absence of a circle c mark with a year, most statutory remedies are not available, and a copyright suit cannot be brought until the protected matter is registered with the registrar of copyrights, which very likely didn't happen.

The copyright claim makes the suit a federal question suit, in addition to giving the claim diversity jurisdiction support. There is no dollar threshold in federal question cases, and state law is less often borrowed by the federal court in making its rulings. It is possible, if the copyright claim is seen as the primary basis of jurisdiction, that federal common law and interpretation of the copyright statute might supersede state law analysis of the other claims.

The Professor didn't plead appropriation of likeness, the best established of the privacy torts, which allows one whose image is used without one's permission for commercial purposes to sue for the commercial value of that image (i.e. it is an implied right to a modeling fee), even though this is a stronger claim than either copyright or the other two of the three best known privacy torts. Still some manner of fair use in connection with the fact that this is news reporting may still apply in an appropriation of likeness claim. This may not have been brought because the damages for that claim would be minimal and normally wouldn't include punitive damages.

Bottom line: It is my view that the Professor's claim fails to state a claim upon which relief can be granted as currently pleaded. It might be possible to plead different claims (defamation and appropriation of likeness), instead, but even then, it would be a difficult case to prevail upon, and it isn't clear that Florida is the proper state in which to bring the claims. The suit is simply poorly done and a weak case, something that often happens when one represents oneself rather than hiring a lawyer (even if you are a lawyer), because one often loses professional objectivity.

On the whole, the Professor hurts his reputation as much by bringing the half-baked suit as the stories from Above The Law do. The Complaint displays his lack of legal acumen, which is much more important to his professional reputation than allegations, since dropped, that he solicited a prostitute that had grown cold with two years of time. Universities don't fire professors or refuse to hire them because they once were accused of soliciting a prostitute, particularly where no conviction resulted and no students were involved. Law schools do have a low opinion of law professors who show that they don't know the law in suits that they file pro se, particularly when the suit involves a constitutional law professor whose suit raises a host of First Amendment issues.