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From today’s decision by Joseph F. Bataillon in DatabaseUSA.com LLC v. Spamhaus Project:

Earlier, the Court entered a default judgment … against defendant The Spamhaus Project (Spamhaus) and in favor of DatabaseUSA. The Court found the allegations of DatabaseUSA’s complaint, deemed admitted by Spamhaus’s default, properly established the elements of its claims and satisfied the standards for entry of a default judgment against Spamhaus for defamation and tortious interference with a business relationship….

DatabaseUSA now seeks damages in the nominal amount of one dollar, as well as injunctive relief. It contends its damages are difficult to ascertain and also argues that it will suffer irreparable harm absent an injunction. DatabaseUSA proposes that the Court enter an injunction ordering defendant Spamhaus to:

1. Publish a statement on the blocklist website that com LLC was wrongfully included on the blocklist from May 2017 until the date of this order;
2. include in its published statement a reference to this action by name and case number; and
3. remove DatabaseUSA from the blocklist going forward, or provide DatabaseUSA with an explanation for why DatabaseUSA is on the blocklist and an explanation for how DatabaseUSA can be removed from the …

Traditionally, American courts have abided by the rule that “equity will not enjoin a libel” because “damages provide an adequate remedy at law … and to enjoin defamation is to effect an unconstitutional prior restraint on speech.” Sid Dillon Chevrolet, Inc. v. Sullivan (Neb. 1997). However, there is an exception to the general rule where there has been a prior adjudication of falsity.

See Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Rels. (1973) (stating the Supreme Court “has never held that all injunctions are impermissible” and noting that “[t]he special vice of a prior restraint is that communication will be suppressed … before an adequate determination that it is unprotected by the First Amendment”); Auburn Police Union v. Carpenter (1st Cir. 1993) (stating “a judicial injunction that prohibits speech prior to a determination that the speech is unprotected … constitutes a prior restraint” (emphasis added)); Sid Dillon Chevrolet (“Absent a prior adversarial determination that the complained of publication is false or a misleading representation of fact, equity will not issue to enjoin a libel or slander, unless such libel or slander is published (1) in violation of a trust or contract or (2) in aid of another tort or unlawful act, or injunctive relief is essential for the preservation of a property right.” (emphasis added)). A restraint via an injunction is permissible if the speech has “been adjudicated to be libelous and therefore not to be protected under the First Amendment.” Nolan v. Campbell (Neb. Ct. App. 2004); see also TM v. MZ (Mich. Ct. App. 2018); Hill v. Petrotech Res. Corp. (Ky. 2010); Balboa Island Village Inn, Inc. v. Lemen (Cal. 2007); San Antonio Comm. Hosp. v. S. Cal. Dist. Council of Carpenters (9th Cir. 1997); Lothschuetz v. Carpenter (6th Cir. 1990); Advanced Training Sys., Inc. v. Caswell Equip. Co., Inc. (Minn. 1984); Organovo Holdings, Inc. v. Dimitrov (Del. Ch. 2017) (all holding that a trial court may enjoin a defendant from making defamatory statements after there has been a determination that the speech is, in fact, false).

Once the speech is found to be false, the question becomes whether the injunction is sufficiently narrow to survive strict scrutiny. In order for an injunction to pass constitutional muster, the suppression must be limited to the precise statements already found libelous. Nolan; see also Advanced Training Sys. v. Caswell Equip. Co. (Minn. 1984) (“We therefore hold that the injunction below, limited as it is to material found either libelous or disparaging after a full jury trial, is not unconstitutional and may stand.”); O’Brien v. Univ. Cmty. Tenants Union, Inc. (Ohio 1975) (“Once speech has judicially been found libelous, if all the requirements for injunctive relief are met, an injunction for restraint of continued publication of that same speech may be proper.”).

Further, a determination that statements were false and defamatory may be based upon an adjudication that results from the entry of a default judgment. See Loden v. Schmidt (Tenn. Ct. App. 2015); see also Lothschuetz (reversing district court’s denial of injunctive relief as an unwarranted restraint on freedom of speech and granting a narrow injunction limited to the statements that had been found, on default, to be false and libelous); Baker v. Kuritzky (D. Mass. 2015) (enjoining specific statements that had been found, by virtue of the default, to be libelous). Also, injunctive relief is a common and non-controversial remedy for tortious interference with prospective economic advantage. Organovo Holdings, (recognizing that a request for equitable remedies for tortious interference with prospective economic advantage can provide the requisite basis for equitable jurisdiction that can justify a related injunction against future speech)….

Continuing defamatory conduct has been held to irreparably injure plaintiffs. Also, “[l]oss of intangible assets such as reputation and goodwill can constitute irreparable injury.” … DatabaseUSA has demonstrated an irreparable injury. It has shown damage to its reputation, a loss of customers, and loss of potential revenue as a result of Spamhaus’s defamation and tortious interference. Spamhaus’s continued wrongful listing of DatabaseUSA as a spammer has a potentially to greatly impact DatabaseUSA’s business. DatabaseUSA has shown that its generally good business reputation that was damaged by Spamhaus’s tortious conduct and the loss associated with damage to its brand or goodwill is difficult to quantify. The inability to calculate DatabaseUSA’s future loss with reasonable precision makes legal remedies inadequate in this case….

In contrast, the burden on Spamhaus in complying with the terms of the narrowly drawn injunction appears slight. Spamhaus did not appear or respond to Database’s allegations in this case. The effort required to post a notice in the nature of a retraction on its website is negligible. The Court finds the negligible harm inflicted on Spamhaus by a narrowly drawn injunction is outweighed by the potential harm to DatabaseUSA in denying the injunction. The public’s interest is furthered by allowing vindication of tortious conduct.

 

The Court also finds that entry of a narrowly drawn injunction in this case will not implicate constitutional concerns. This is a case involving commercial speech, which is afforded less deference under the First Amendment. Because there has been an adjudication, by virtue of the default judgment, of the falsity of the challenged statements, the constitutional problems associated with a prior restraint are not present. Enjoining Spamhaus’s continuing course of repetitive defamatory conduct does not affect an improper and unconstitutional prior restraint on protected speech.

DatabaseUSA’s proposed injunction passes constitutional muster in part. Its proposed injunction is directed only at the speech that has been adjudicated to be false—the 2017 inclusion of DatabaseUSA on the spammer list. It is properly limited to prohibiting Spamhaus from repeating statements that have been determined to be defamatory. Accordingly, the Court will adopt the plaintiff’s proposal to the extent it is directed at Spamhaus’s past conduct…

Nonetheless, an injunction on future speech must be no more broad than necessary to remedy the wrongful conduct alleged in the complaint. In its complaint, DatabaseUSA challenged its inclusion on a domain block list represented to contain only the domain names of entities “that send emails including phishing, fraud, ‘419,’ malware, or viruses” despite the fact that Database “has never partaken in any of [those] prohibited actions,” without providing “any reason or justification for placing Database on the blocklist.” The conduct addressed in this action is Spamhaus’s wrongful listing of DatabaseUSA.com on its DBL without justification. Going forward, the Court will tailor the injunction as precisely as possible to the needs of the case and the injunction will be aimed only at the conduct that has been found objectionable.

A blanket injunction ordering the defendant not to include DatabaseUSA.com on the DBL in the future would be overly broad and could prohibit speech that is not defamatory. The Court will not enjoin all future listing of DatabaseUSA.com on the DBL but will require Spamhaus to provide a rationale for the listing to DatabaseUSA. Spamhaus is not prevented from including DatabaseUSA.com on its list if it furnishes legitimate reasons for doing so.

Continue reading “Injunction in Libel Case Against the Spamhaus Project”

A National Guard officer will testify Tuesday at a congressional hearing that the June 1 clearing of protesters outside the White House was “an unnecessary escalation of the use of force” and “deeply disturbing to me, and to fellow National Guardsmen.”

“From my observation, those demonstrators—our fellow American citizens—were engaged in the peaceful expression of their First Amendment rights,” Adam DeMarco, a major in the D.C. National Guard, will tell the House Natural Resources Committee, according to his prepared remarks. “Yet they were subjected to an unprovoked escalation and excessive use of force.”

DeMarco’s testimony directly contradicts several of the Trump administration’s shifting explanations for what happened on June 1, when law enforcement violently dispersed a crowd of protesters in Lafayette Square, across the street from the White House. After police cleared the crowds, President Donald Trump conducted a photo shoot of himself holding a Bible outside St. John’s Church.

DeMarco and other National Guardsmen were deployed outside the White House on June 1, along with U.S. Park Police, Secret Service, and other federal law enforcement. A 7 p.m. curfew was in place in D.C. that evening.

DeMarco testifies that around 6 p.m., Attorney General William Barr and Gen. Mark Milley, the chairman of the Joint Chiefs of Staff, arrived.

“As the senior National Guard officer on the scene at the time, I gave General Milley a quick briefing on our mission and the current situation,” DeMarco writes. “General Milley told me to ensure that National Guard personnel remained calm, adding that we were there to respect the demonstrators’ First Amendment rights.” (Milley has since apologized for appearing in Lafayette Square. “I should not have been there,” he said. “My presence in that moment, and in that environment, created the perception of the military involved in domestic politics.”)

At around 6:20 p.m., DeMarco continues, verbal warnings were given to the crowd to leave. But from where he was standing, about 20 yards away from the line of protesters, the warnings “were barely audible and I saw no indication that the demonstrators were cognizant of the warnings to disperse.”

Law enforcement rushed the crowd at around 6:30 p.m. Videos showed law enforcement assaulting an Australian TV crew. Media and other observers also reported being tear gassed.

The Trump administration says that protesters were throwing items at law enforcement, which DeMarco testifies he did not see. Park Police also emphatically denied they fired tear gas, claiming that officers instead fired smoke canisters and pepper balls, the latter of which are also a chemical irritant. But DeMarco says that tear gas was indeed used.

“The Park Police liaison officer told me that the explosions were ‘stage smoke,’ and that no tear gas was being deployed against the demonstrators,” he writes. “But I could feel irritation in my eyes and nose, and based on my previous exposure to tear gas in my training at West Point and later in my Army training, I recognized that irritation as effects consistent with CS or ‘tear gas.’ And later that evening, I found spent tear gas cannisters on the street nearby.”

The Trump reelection campaign demanded media outlets issue a correction about any tear gas reporting. “Every news organization which reported the tear gas lie should immediately correct or retract its erroneous reporting,” Tim Murtaugh, campaign communications director, said in a statement.

As Reason‘s Elizabeth Nolan-Brown pointed out at the time, whether tear gas was used is rather incidental to the larger issue of the government attacking protesters so the president can do a silly photo op. But the distraction served its primary purpose for the White House and conservative media: to muddy the waters enough that average news consumers might shrug their shoulders and ignore the whole thing.

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New York City’s police and fire unions are fighting in court to block the release of their members’ disciplinary records. They’ve temporarily won one fight, but they may have already lost the war.

New York state has finally—after years of activism from police reformers demanding transparency—repealed Section 50-a, the rule that shielded police and firefighter personnel records from public disclosure laws. The statute had been applied so broadly that it was all but impossible to know what sort of discipline, if any, misbehaving officers faced.

Naturally, the police unions were not going to just step aside as the records were distributed. And so New York is now seeing what we saw in California last year when the Golden State ended its official regime of police record secrecy: lawsuits.

On July 14, a group of seven law enforcement and firefighter unions in New York City filed a federal lawsuit against Mayor Bill de Blasio and other city officials to attempt to stop a mass public release of disciplinary records, most specifically records that were “non-final, unsubstantiated, exonerated, or resulted in a finding of not guilty.” The lawsuit argues that even though Section 50-a has been repealed, releasing these past records violates the Due Process rights of the officers and collective bargaining agreements that assured they’d be kept confidential. (To read the lawsuit, Uniformed Fire Officers Association et al v. De Blasio et al, go here.)

On Wednesday evening, the unions won a temporary reprieve from Judge Katherine Polk Failla of the United States District Court, Southern District of New York, who, in an oral ruling, temporarily blocked the de Blasio administration from releasing these records until the case could be litigated.

But thousands of these records had already been passed along to the New York Civil Liberties Union (NYCLU) in response to a records request. Even though the NYCLU is not a party to this lawsuit, Failla nevertheless ordered that the NYCLU refrain from disclosing them to the public.

The NYCLU is not pleased, and it has filed a motion to get Failla’s gag order overruled, arguing that the court order is unconstitutional prior restraint. NYCLU Executive Director Donna Lieberman has noted that the NYCLU “obtained police misconduct data lawfully, and we vehemently disagree with the court’s unprecedented order to bar the publishing of these records….We’ll keep fighting to bring police misconduct into the light of day and make sure police are held accountable.”

Gagging the NYCLU didn’t stop some discipline records from getting released. The nonprofit media outfit ProPublica also asked the New York’s Civilian Complaint Review Board (CCRB) for disciplinary records and received data on thousands of police. They are under no orders from Failla not to publish them, so they’ve put together a database of active duty officers who have had at least one complaint against them substantiated. Turns out that around 4,000 of the city’s 36,000-person police force has had some sort of misconduct complaint deemed substantiated by the CCRB.

ProPublica‘s database is accessible here. As you read it, keep a couple of caveats in mind. First, the database contains only complaints that were evaluated by the CCRB, plus their findings. The CCRB investigates accusations of mistreatment of civilians by police officers, but not other types of potential police misconduct in the line of duty, such as perjury or corruption. Those other crimes and types of misconduct are investigated by the NYPD’s Internal Affairs Bureau and are not part of this database.

Second, the information in the database is very simple. It has the officers’ names, some very basic information about what they were accused of, and a contextless listing of the CCRB’s recommendations, including possible charges. But these are just recommendations. The CCRB lacks the authority to actually discipline cops. These findings are sent to the police commissioner for the final decision on what to actually do, though the CCRB does have attorneys who can prosecute officers at internal disciplinary trials. So when the database states that the CCRB recommended “charges,” this should not be taken to mean that the officer was definitively charged with misconduct and faced some sort of a trial.

All of which to say that all of this information in this database is just the tip of the iceberg. It still doesn’t give a clear sense of the extent that NYPD officers are held accountable for conduct that crosses the line.

It’s going to take at least months, and probably years, before New Yorkers can truly figure out what the NYPD does with their bad apples. And the police unions will be fighting every step of the way.

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