rape – Techdirt (original) (raw)

Millionth Time Is The Charm: Donald Trump Again Sues A News Agency Over Factual Reporting

from the shocker:-terrible-human-being-also-terrible-litigant dept

“Open up the libel laws!” the man who can’t win consecutive elections (much less a defamation lawsuit) once proclaimed. The Republican Party (or at least its voting bloc) appears willing to give a man who’s enjoyed nothing but unearned opportunities throughout his professional and governmental career yet another shot in 2024. But he’s not going to find similar support in the courts, which have rejected pretty much every suit the sorest loser in the world has filed over the course of his lifetime.

This latest effort will fare no better. As C.J. Ciaramella explains at Reason, it’s highly unlikely any court will decide the line between defamation and mostly factual somehow runs right through the narrow definition of one state’s legal definition of the word “rape.”

I_n a complaint filed yesterday in the U.S. District Court for the Southern District of Florida, Trump alleges that Stephanopoulos defamed him during a March 10 interview with Rep. Nancy Mace (R–S.C.) in which the host repeatedly said that a jury found Trump liable for rape in the lawsuits brought against him by E. Jean Carroll._

[…]

Trump’s complaint is correct that, as a technical matter, he was found civilly liable for sexual assault under New York state law, not rape, because the jury did not find that he penetrated Carrol with his penis.

That’s the argument Trump is making. He was defamed not because it was alleged he sexually assaulted someone. He was defamed because the sexual assault (allegations upheld by a jury that also awarded Carroll $5 million last year) wasn’t legally “rape” under New York law.

Trump’s decision to push this argument shows he’s incapable of learning from past mistakes. The judge presiding over Carroll’s lawsuit already made it clear the sustained allegations described violations most people would describe as “rape” even if they did not include penile penetration.

“The finding that Ms. Carroll failed to prove that she was ‘raped’ within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump ‘raped’ her as many people commonly understand the word ‘rape,” Kaplan wrote. “Indeed, as the evidence at trial […] makes clear, the jury found that Mr. Trump in fact did exactly that.”

That is, the jury found it credible that Trump had penetrated Carroll’s vagina without her consent, although it was more likely with his fingers (a method Trump espouses) than with his penis. Rape in common sense of the word, even if it wouldn’t result in the specific criminal charge in the state of New York.

But Trump is as stubborn as he is stupid, and so he’s filed another lawsuit [PDF] he’s destined to lose. This one’s filed in Florida, which is where Trump often prefers to do his judicial business. Choice of venue aside, this lawsuit has “LOSER” written all over it. It opens with Trump reminding the court that he was once president of the United States and has built up enough steam to become the second coming of Grover Cleveland.

This boilerplate tho:

Plaintiff President Donald J. Trump (“Plaintiff”) is a private citizen of the United States, a resident of the state of Florida, the 45th President of the United States of America, and the leading candidate in the 2024 Presidential Election.

At least that means there won’t be any arguments over whether or not Donald Trump is a “public figure” for the purposes of this litigation. It’s also unsurprising that Trump refers to himself as a “private citizen” when filing lawsuits, but as “president” when defending himself against lawsuits and/or criminal charges.

The self-aggrandizement is followed by several paragraphs of Trump trying to re-litigate the E. Jean Carroll case — one that has gone down in the history books as a Trump loss, and one that he continues to compound by his unwillingness to stop defaming (or stop suing!) the victor of the civil case.

At the heart of this case are the ten times George Stephanopoulos referred to Trump’s sexual assault (under New York law!) as “rape” while interviewing Congressperson Nancy Mace. That’s it. That’s the whole thing. It goes on for several more pages, but that’s the entirety of the argument: that a jury found him liable for defamation and sexual assault, but not for the crime of “rape” as described very particularly by the New York state statute.

That’s not going to matter when this case gets underway. The standard is whether or not the statements are factual. Most people would consider forceful penetration of sexual orifices “rape,” no matter what was used. On top of that, Stephanopoulos was offering commentary and engaging in an interview of a Congressional Trump supporter. He was not directly reporting on the outcome of the Carroll case.

What it all comes down to is whether “rape” is defamatory when it’s used to describe something narrowly defined as “sexual assault” by a single state’s laws. And that’s just not going to be enough to rack up a win for one of the nation’s most inept serial litigants. Trump should just accept the fact that people believe he’s a rapist, even if a jury did not explicitly arrive at the conclusion. His version isn’t any better: all he’s really arguing here is that he should only be referred to as someone found liable for sexual assault. Is that really so much better it’s worth spending thousands or millions of dollars on?

Filed Under: defamation, donald trump, e. jean carroll, florida, george stephanopoulos, nancy mace, rape, sexual assault, slapp
Companies: abc

Appeals Court Doubles Down On Dangerous Ruling: Says Website Can Be Blamed For Failing To Warn Of Rapists

from the bad-cases-make-bad-law dept

Back in late 2014, we wrote about a case where the somewhat horrifying details were likely leading to a bad result that would undermine Section 230 of the CDA (the most important law on the internet). Again, the details here are appalling. It involves two guys who would use other people’s accounts on a website called “Model Mayhem” to reach out to aspiring models, then lure them to their location in South Florida, drug them, and then film themselves having sex with the drugged women to then offer as online porn. Yes, absolutely everything about this is horrifying and disgusting. But here’s where the case went weird. A victim of this awful crime decided to sue the large company Internet Brands, who had purchased Model Mayhem, arguing that it knew about these creeps and had failed to warn users of the service. Internet Brands had argued that under Section 230 it was not liable and the appeals court said no. The case was then reheard en banc (with a large slate of 9th Circuit judges) and they’ve now, once again, said that Section 230 does not apply.

This case has been a favorite of those looking to undermine Section 230, so those folks will be thrilled by the results, but for everyone who supports an open internet, we should be worried. The rule here is basically that sites are protected from being held liable of actions of their users… unless those users do something really horrible. Then things change. It’s further important to note that the two sick creeps who pulled off this scam, Lavont Flanders and Emerson Callum, weren’t actually members of the Model Mayhem site. They would just use the accounts of others to reach out to people, so the site had even less control.

To get around the plain language and caselaw history around Section 230, the court has to quite carefully parse its words. It starts out by noting that Internet Brands clearly qualifies for the safe harbors as an internet platform. However, it bends over backwards to reinterpret a key part of CDA 230, that says you cannot treat such a platform “as a publisher or speaker” of information posted by users. Here, the court decides that the law requiring services to warn of potential danger do no such thing:

Jane Doe?s claim is different, however. She does not seek to hold Internet Brands liable as a ?publisher or speaker? of content someone posted on the Model Mayhem website, or for Internet Brands? failure to remove content posted on the website. Jane Doe herself posted her profile, but she does not seek to hold Internet Brands liable for its content. Nor does she allege that Flanders and Callum posted anything to the website. The Complaint alleges only that ?JANE DOE was contacted by Lavont Flanders through MODELMAYHEM.COM using a fake identity.? Jane Doe does not claim to have been lured by any posting that Internet Brands failed to remove. Internet Brands is also not alleged to have learned of the predators? activity from any monitoring of postings on the website, nor is its failure to monitor postings at issue.

Instead, Jane Doe attempts to hold Internet Brands liable for failing to warn her about information it obtained from an outside source about how third parties targeted and lured victims through Model Mayhem. The duty to warn allegedly imposed by California law would not require Internet Brands to remove any user content or otherwise affect how it publishes or monitors such content.

In other words, because the law only compels a form of speech — i.e., a duty to warn people about creeps on your service — as opposed to a duty to suppress speech, then Section 230 doesn’t apply here. Bizarrely, the court points to the so-called “Good Samaritan” clause in CDA 230 (CDA 230(c)(1)) that further notes that any action that a site takes to moderate content cannot be used to create liability around other content on the site, as further proof for its position:

Jane Doe?s failure to warn claim has nothing to do with Internet Brands? efforts, or lack thereof, to edit, monitor, or remove user generated content. Plaintiff?s theory is that Internet Brands should be held liable, based on its knowledge of the rape scheme and its ?special relationship? with users like Jane Doe, for failing to generate its own warning. Thus, liability would not discourage the core policy of section 230(c), ?Good Samaritan? filtering of third party content.

The court also rejects the idea that this ruling might chill free speech by leading to greater monitoring and censorship, basically just tossing it off to the side as unlikely to be a big deal:

It may be true that imposing any tort liability on Internet Brands for its role as an interactive computer service could be said to have a ?chilling effect? on the internet, if only because such liability would make operating an internet business marginally more expensive. But such a broad policy argument does not persuade us that the CDA should bar the failure to warn claim. We have already held that the CDA does not declare ?a general immunity from liability deriving from third-party content.? Barnes, 570 F.3d at 1100. ?[T]he Communications Decency Act was not meant to create a lawless no-man?s-land on the Internet.? Roommates.Com, 521 F.3d at 1164. Congress has not provided an all purpose getout- of-jail-free card for businesses that publish user content on the internet, though any claims might have a marginal chilling effect on internet publishing businesses. Moreover, the argument that our holding will have a chilling effect presupposes that Jane Doe has alleged a viable failure to warn claim under California law. That question is not before us and remains to be answered.

Some will, undoubtedly, argue that this limiting of Section 230 is a good thing, either because they already dislike 230, or because they believe that the behavior described above was so beyond the pale that it’s fine to punish the platform for it. This is problematic. No one denies that the two individuals who committed these acts deserve to be in jail (for a long time). But blaming the platform that they used for not posting a warning seems extreme and does seem to confuse how Section 230 is supposed to work. The key point is in accurately putting liability on the parties who caused the action. That wasn’t the website and it shouldn’t be blamed.

You can now expect lots of cases citing this case as they look for any way to get past Section 230’s protections.

Filed Under: 9th circuit, rape, section 230, warnings
Companies: internet brands, model mayhem

Donald Trump's Clueless Lawyer Threatens Press, Says It's Ok To Rape Your Spouse

from the a-graduate-of-thomas-cooley-law-school dept

A few weeks ago, we wrote about the absolute ridiculousness of Donald Trump’s “lawsuit” against Univision, which made some bizarre claims about the First Amendment and defamation that clearly did not apply. While there may be a legitimate contractual dispute hidden somewhere in all that mess, there was so much fluff that it made you wonder who is actually advising the entertainer (pretending to be a politician) on legal issues. Apparently, it’s some guy named Michael Cohen, who isn’t just out of his depth on stuff, but he appears to be actively making things worse. In an astounding article over at The Daily Beast, which was initially over claims of “rape” by Donald Trump’s ex-wife Ivana during their divorce proceedings, Cohen not only claimed that you can’t rape a spouse, but also threatened to ruin The Daily Beast if they published an article. Lawyering by bullshit threats, apparently.

Michael Cohen, special counsel at The Trump Organization, defended his boss, saying, ?You?re talking about the frontrunner for the GOP, presidential candidate, as well as a private individual who never raped anybody. And, of course, understand that by the very definition, you can?t rape your spouse.?

?It is true,? Cohen added. ?You cannot rape your spouse. And there?s very clear case law.?

This is, of course, wrong — both legally and morally. In NY State, the law got rid of the “marital exemption” to rape laws in 1984 and federal law made it clear that spousal rape is a real crime not long after that. Even if that wasn’t the case, is that really a defense? “Oh it’s not rape because they’re married?” Who thinks that’s an okay excuse: “Well, technically, it’s not rape.” Yikes.

Cohen has now sort of, but not really, “apologized” for what he claims was an “inarticulate comment.”

“As an attorney, husband and father there are many injustices that offend me but nothing more than charges of rape or racism. They hit me at my core. Rarely am I surprised by the press, but the gall of this particular reporter to make such a reprehensible and false allegation against Mr. Trump truly stunned me. In my moment of shock and anger, I made an inarticulate comment – which I do not believe — and which I apologize for entirely,” Cohen said in a statement to CNN.

Except that it wasn’t inarticulate. It was wrong and, many would argue, morally reprehensible.

And notice that he’s still blaming the reporter for asking the question. And that brings us to the second crazy bit here: the threats against the reporters. The reporters — Tim Mak and Brandy Zadrozny — didn’t back down. In fact, they not only published the story but included the rather unhinged threats from Cohen:

?I will make sure that you and I meet one day while we?re in the courthouse. And I will take you for every penny you still don?t have. And I will come after your Daily Beast and everybody else that you possibly know,? Cohen said. ?So I?m warning you, tread very fucking lightly, because what I?m going to do to you is going to be fucking disgusting. You understand me??

?You write a story that has Mr. Trump?s name in it, with the word ?rape,? and I?m going to mess your life up? for as long as you?re on this frickin? planet? you?re going to have judgments against you, so much money, you?ll never know how to get out from underneath it,? he added.

Cohen appears to come from a very different generation of legal advice — one in which bogus threats designed to shut people up would actually work, rather than today, when they just provide a great story. Once again, though, this should serve as a reminder for why we need a federal anti-SLAPP law. Cohen has made it abundantly clear that he has no qualms in using bogus lawsuits to try to stifle public discussion of important matters concerning someone who is clearly a public persona and who is even (technically) running for President.

The fact that Cohen’s “apology” for the spouse raping comment still pins the blame on the reporters suggests someone who still doesn’t understand what he’s talking about. A recent “profile” of Cohen includes him describing his own style as being a “pit bull.”:

A 2011 ABC News profile reported that within The Trump Organization he?s called the boss?s ?pit bull.?

?If you do something wrong, I?m going to come at you, grab you by the neck and I?m not going to let you go until I?m finished,? Cohen, now 48, told the TV network.

That story also notes that while he may file lawsuits, his threats aren’t entirely accurate:

To wit: When New York State Attorney General Eric Schneiderman filed a fraud suit against Trump?s for-profit college in 2013, Cohen threatened Trump?s vengeance: ?The damage to the attorney general is going to be very significant,? Cohen toldThe New Yorker.?So significant that he will possibly have to resign.? (Schneiderman has not resigned. The case is ongoing.)

It might make you wonder where Cohen actually got a law degree. And… it turns out that it’s from the infamous Thomas M. Cooley law school. We’ve written about Cooley a bunch of times. It’s a bottom tier law school, considered so bad that US News used to list it as “unranked” because it wouldn’t provide the necessary info. It now lists the school as “Rank Not Published” which US News notes is “for the schools that are in the bottom 25 percent of the rankings.”

In response to this, Cooley came up with its own ranking system, saying it disagreed with US News’ methodology. Magically, Cooley came in second in its own ranking system, second only behind Harvard Law. So what kind of methodology did Cooley’s own ranking system include? Well, they took out anything having to do with “quality” since they deemed those to be too subjective, and then used a bunch of stuff about how big the library is, including “total library square footage” and “library seating capacity.” Apparently, the Thomas Cooley law school has a huge library.

The school has also become infamous for suing critics, so Cohen seems to have taken those lessons to heart. A few years ago it sort of “merged” with Western Michigan University, and used that as an opportunity to change its name to avoid some of the bagggage of the Thomas M. Cooley brand. It now promotes itself as the “Western Michigan University — Cooley Law School” and who does it promote as a distinguished graduate on its own site? You guessed it. One Michael Cohen of the Trump organization:

Thomas Cooley law school continues its traditions, apparently.

Filed Under: donald trump, first amendment, free speech, ivana trump, michael cohen, press, rape, threats
Companies: thomas m cooley law school

Indian Government Attempts To Censor BBC Gang Rape Documentary; Succeeds Only In Drawing More Attention To It

from the nothing-more-pathetic-than-futile-self-preservation-efforts dept

India’s government is attempting to do the impossible and for all the wrong reasons.

India has asked YouTube to remove all links to a controversial documentary about the gang rape and murder of a woman in Delhi after banning its broadcast, a government official told Reuters on Thursday…

“We just forwarded the court order and asked them (YouTube) to comply.”

The targeted BBC documentary details the horrific rape carried out by a busful of Indian men.

In the brutal two-hour assault, the woman was repeatedly violated with a metal rod before being dumped naked along with her companion beside a road near New Delhi’s airport. The couple was then ignored by passersby, while police argued over where to take them as they lay bleeding on the street, according to the woman’s friend. The victim died of her injuries two weeks later.

Supposedly at the center of the Indian government’s attempted ban is an “illegal” interview with the bus driver, whose comments placed the blame on the rape victim. The bus driver also claimed he didn’t participate in the assault, something disproven later by DNA evidence.

“When being raped, she shouldn’t fight back,” Mukesh Singh, who pleaded not guilty at the trial, said in one of several chilling comments.

“She should just be silent and allow the rape. Then they’d have dropped her off after ‘doing her’ and only hit the boy.”

The bus driver’s lawyer claims Singh shouldn’t have been interviewed about an ongoing court case. Maybe so, but Singh was under no obligation to further destroy his own reputation with these comments. The Indian government has justified its ban under the guise of “protecting” women, a job it’s apparently terrible at performing.

The documentary was banned because Mukesh Singh’s comments “are highly derogatory and are an affront to the dignity of women,” India’s Home Minister Rajnath Singh said in parliament on Wednesday.

In reality, the government is banning the documentary to insulate itself from further criticism. Various officials have made similarly repulsive comments over the past few years, as reports of gang rapes have hit the internet with alarming frequency.

Haryana’s top elected official, Manohar Lal Khattar, said this last year in response to multiple gang rape incidents:

“If a girl is dressed decently, a boy will not look at her in the wrong way,” Khattar told reporters, “Freedom has to be limited. These short clothes are Western influences. Our country’s tradition asks girls to dress decently.”

A defense lawyer for one of the accused men blamed not only the woman, but also her companion, who failed to protect her from six rapists.

Manohar Lal Sharma said 23-year-old Jyoti Singh Pandey and her male friend were “wholly responsible” for the horrific torture they suffered in the Dec. 16 attack in New Delhi because they were an unmarried couple on the streets at night, the Sydney Morning Herald reported.

“Until today I have not seen a single incident or example of rape with a respected lady,” Sharma told the newspaper.

Jyoti’s companion, meanwhile, was guilty of failing to protect her, he said.

“The man has broken the faith of the woman,” Sharma told the newspaper. “If a man fails to protect the woman, or she has a single doubt about his failure to protect her, the woman will never go with that man.”

So, it’s cultural, and those leading the culture — elected government officials — don’t want to deal with the fallout of their passive and active support of treating women as second-class citizens. That’s what has prompted the ban, not the “disrespect” for women voiced by one of the attackers. So far, it has managed to only nail down its own borders, but that means nothing to the world’s largest communication platform: the internet.

YouTube has acquiesced to the Indian court order. But that won’t keep Indians from seeing the documentary their government is trying to silence. All this ban attempt has accomplished is draw further attention to both the documentary and the government’s petty acts of self-preservation.

The government — unwilling to admit failure — is exploring its other legal options (protip: there aren’t any) in hopes of forcing the rest of the world to play by its stupid, denialist rules.

“We can ban the documentary in India but there is a conspiracy to defame India and the documentary can be telecast outside,” India’s Parliamentary Affairs Minister M. Venkaiah Naidu said.

The government was exploring how it could be blocked abroad, he said.

Nobody’s “defaming” India other than the rapists living within its borders. Oh, and the prominent public officials who stand up for them by suggesting those who have been raped/tortured/killed brought it on themselves.

Unfortunately, the BBC — which produced the documentary — is now inadvertently assisting the Indian government in its censorious quest. Multiple uploads meant to circumvent YouTube’s India-only blockade have been taken down by BBC copyright claims.

While I appreciate the company’s desire to route viewers to its monetized upload, there are bigger issues at play here. Unless it’s willing to use other platforms to further distribute its powerful documentary (many of which won’t generate any income), its removal of other YouTube options only makes it easier to keep India’s citizens from seeing something their government has chosen to censor for its own benefit.

Filed Under: censorship, documentary, free speech, gang rape, india, rape, streisand effect
Companies: youtube

Bill Cosby's Lawyer Tries To Silence Journalists Covering The Cosby Rape Allegations

from the lost-his-bluster dept

In case you haven’t read the news reports, Bill Cosby is having a terrible, no good, very bad few weeks. Ever since Hannibal Buress, a fellow comedian, brought up the fact that Bill Cosby has been accused of sexual assault and rape an incredible number of times, details of the accusations have been making headlines and formerly silent women have come forward with new accusations of their own. The pudding guy, on the other hand, has been remarkably silent on the matter, even as a Netflix special and a scheduled network sitcom are being sidelined as the controversy grows. In the midst of all this, one would think Mr. Cosby would be out there telling his side of the story. He isn’t. His lawyers, on the other hand, have been quite active, but most of their work has been in the arena of making sure that nobody’s side of the story gets out. In addition to blasting one of his alleged victims, who claimed her publisher nixed part of her book that detailed her allegations against Cosby, that letter to Buzzfeed from Cosby’s attorneys makes some barely-veiled threats.

Because you can confirm with indpendent sources the falsity of the claim that my client’s lawyers allegedly pressured the publisher to kill the story, it would be extremely reckless to rely on anything Ms. Dicknson has to say about Mr. Cosby since the story about the publisher is false…If you proceed with the false Story when you can check the facts with neutral independent sources who will provide you with facts demonstrating that the Story is false and fabricated, you will be acting recklessly and with Constitutional malice.

It goes on and on in that fashion. It’s worth noting that the neutral third parties the lawyers are insisting Buzzfeed rely upon are the same publishers that allegedly conspired with Cosby’s lawyers to pull the rape allegation from the book. So… yeah, not the most independent of choices, I don’t think. In any case, attempting to muscle journalists in any situation probably wouldn’t reflect well on their client, but doing so when Cosby is remaining completely silent on the matter, beyond the occasional attempt to intimidate journalists himself, really doesn’t look good.

Add to all of this the always laughable claim at the top of the letter sent to Buzzfeed:

CONFIDENTIAL LEGAL NOTICE

PUBLICATION OR DISSEMINATION IS PROHIBITED

And you can tell that they mean business because they used all caps. Too bad this is a statement equal parts meritless and futile. As Marc Randazza notes, the proper responses to that disclaimer all involve vulgarity.

No. Wrong. Jesus Hello Kitty Christ on a Rocket-Powered Toboggan, NO! It is NOT confidential. You CAN disseminate it.

Here is why: I JUST FREAKIN’ GAVE THIS LESSON, WILL YOU PEOPLE PAY ATTENTION????

That link he provides is a nice overview of why the confidentiality disclaimer is complete horseshit. In that rundown he highlights the futility of the disclaimer, since it’s ultimately reproduced when the recipient goes ahead and publishes the letter anyway. It lets any reader know not only that you’re the kind of lawyer who will make a false claim, but also that you don’t really want your actions to be known publicly, indicating that there’s something underhanded in all of this.

Which there is. Several women have now come forward at this point with claims of rape against Bill Cosby. You can choose to believe they’re all lying if you like, but attempts to muzzle the press aren’t going to get Mr. Huxtable very far, I fear.

Filed Under: bill cosby, confidential, defamation, intimidation, lawyers, rape, streisand effect, threats
Companies: buzzfeed

Horrifying 'Rape Scam' Case Leads To Questionable Ruling About Blaming A Website For Failing To Warn Of Rapists

from the cda-230 dept

For many years, we’ve written about the importance of the so-called “intermediary liability protections” found in Section 230 of the Communications Decency Act (CDA). The basic concept of Section 230 is that it’s improper to blame a website for the actions done by users of that website — noting that to blame the website would create tremendous chilling effects on the internet. However, at times, the courts have chipped away at these protections. Back in 2009, we wrote about a ruling in California in Barnes v. Yahoo in which the court ruled that Yahoo had given up its Section 230 protections after an employee promised to take down some content (the case was sort of an early revenge porn story).

Now, the 9th circuit appeals court is relying on that ruling to reject a Section 230 defense in another case, where the situation is — without question — horrible. It involves a site called Model Mayhem, where models and aspiring models can post their modeling profiles. Apparently, a pair of despicable excuses for human beings (and I almost hesitate to call them that much) named Lavont Flanders (who was a former Miami Beach police officer who was apparently fired, but not prosecuted, for soliciting the 13-year old daughter of a fellow cop) and Emerson Callum would troll through a site called Model Mayhem to find aspiring models, convince them to come for an “audition,” and then proceed to drug them, rape them, film it and then sell the videos. Everything about this is horrific. I was going to say that I hope the two of them are on their way to rotting in prison for the rest of their lives, but it appears that’s already been taken care of. Both have been given life sentences for what they did. The story behind that link has the following tidbit that becomes more important: “State prosecutors initially charged the men in Broward County, but they were freed on bond and continued to prey on women while they were free, prosecutors said.”

The case here involves one of the victims of this situation suing Internet Brands, the company that owned Model Mayhem for at least some of the time that this was happening. Again, what she went through is absolutely horrible. But it seems like a massive stretch to blame the site. Internet Brands pointed to Section 230, and the district court dismissed the case against the company. However, the appeals court has now reversed, arguing that Section 230 only applies to certain kinds of intermediary liability — those which involve treating the intermediary as a “publisher.” All other intermediary liability is, apparently, fair game. From there, the issue is whether or not Model Mayhem / Internet Brands had a proactive duty, under California law, to warn users of the site of this particular scam by these individuals. The court notes that the company was aware of what these two guys were doing, but they weren’t publishing anything on the site — merely contacting women who published their own profiles. The site was likely aware of the pair due to that earlier arrest but nowhere does it suggest they knew the two were still out there continuing to take part in this horrific practice.

Either way, the woman claims that Internet Brands should have warned their users, and the court says Section 230 doesn’t protect the site from such things (though does not determine whether or not Model Mayhem should have warned users of the site — that question goes back to the lower court).

In any case, that Internet Brands was in some sense an ?intermediary? between Jane Doe and the rapists does not mean that the failure to warn claim treats Internet Brands as the publisher or speaker of user content. True, imposing any tort liability on Internet Brands for its role as an interactive computer service could be said to have a ?chilling effect? on the internet, if only because such liability would make operating an internet business marginally more expensive. But such a broad policy argument does not persuade us that the CDA should bar the failure to warn claim. We have already held that the CDA does not declare ?a general immunity from liability deriving from third-party content.? Barnes, 570 F.3d at 1100. Congress has not provided an all purpose get-out-of-jail-free card for businesses that publish user content on the internet, though any claims might have a marginal chilling effect on internet publishing businesses. Moreover, the argument that our holding will have a chilling effect presupposes that Jane Doe has alleged a viable failure to warn claim under California law. That question is not before us and remains to be answered.

The woman suing suffered a very real and incredibly horrifying harm. But it’s worrisome when the result of it is to chip away at important protections that Congress put in place for intermediaries to protect them from liability from the actions of third parties. The constant efforts to chip away or dismantle Section 230 are already problematic enough. Having a court open up new “holes” in Section 230 like this will only lead to a new series of lawsuits from questionable claimants, seeking to get around Section 230 relying on rulings like this one.

Filed Under: cda 230, emerson callum, intermediary liability, lavont flanders, liability, rape, scam

College Reacts To Negative Press By Attempting To Seal Court Documents Exposing Its Ridiculous Actions

from the those-who-can't,-administrate dept

I don’t know what possesses certain individuals and entities to address their screwups by attempting to bury them, especially in an age where a wealth of information is still (mostly) a Google search away. Whatever happened to taking responsibility for errors of judgement? By opting for the “hasty burial” method of reputation management, these entities almost invariably direct more attention to the very thing they wanted everyone to forget. It happens so frequently, it even has its own name.

Occidental College expelled a student over rape allegations, opting to take the path well knee-jerked, rendering its decision before all the facts were in. The facts didn’t seem to indicate a rape had occurred (something investigating officers agreed with).

The student, identified only as “John Doe,” had sex with his accuser on September 8th, 2013, according to details of the case obtained by the Foundation for Individual Rights in Education. Both Doe and his accuser had been drinking. By several accounts, the sex was consensual. The accuser sent Doe a text message beforehand asking him if he had a condom. She also texted a friend and clearly announced her intention to have sex with Doe.

But rape was declared in the sober light of day, thanks in part to an assistant professor’s bizarre profiling of Doe as a rapist.

After that night, the accuser spoke with several Occidental employees, including Danielle Dirks, an assistant professor of sociology. Dirks told the accuser that Doe “fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports team], and was ‘from a good family.'”

Classic rapist. High grades, played sports, good family. Occidental obviously holds its rapists to a higher standard, seeing as Doe fit right in with “the other rapists on campus.”

One week later, the rape complaint was filed. The police, as mentioned above, investigated it and deemed the interaction to be drunken sex between two consensual adults. Occidental College, however, was feeling the pressure from up top — specifically, a recent federal investigation into its rape prevention policies. So it overreacted.

[T]he college hired attorney Marilou Mirkovich to investigate the matter. Mirkovich concluded that the female student did indeed consent to sex. However, since she was intoxicated, her consent was invalid, according to Mirkovich.

(Interesting point, but wouldn’t that mean they raped each other? Or is consent vis-a-vis intoxication completely malleable to each situation, in order to better comply with societal expectations?)

This was all Occidental needed to justify expelling Doe… who then sued the school for denying him due process. When this happened, all of the above became public knowledge. And it made Occidental look bad, which is something the school cannot abide. But rather than settle with Doe and admit the whole “investigation” was a farce, it decided it still had plenty of “stupid” left in its tanks.

So it’s unsurprising that Occidental would be unhappy about these documents being displayed online for all to see and judge. It is equally unsurprising, however, that yesterday a Los Angeles County Superior Court judge denied the college’s request to seal certain documents relating to the case—specifically, approximately 180 pages comprising an investigative report and accompanying evidence that included interviews with witnesses and the alleged victim.

Unsurprising, indeed. And yet, the university attempted to bury its embarrassment with a straight face, expressing a completely belated “concern” about the personal information contained in the investigative report… four months after it went public. To which the judge responded:

I don’t understand why [it] is so pressing in June when it wasn’t so pressing in February.

That’s the power of negative press. That open-and-shut investigation that forced a dangerous rapist valedictorian off campus was suddenly an ugly, festering byproduct of Occidental’s desire to show the US Government that was Very Serious about combating sexual assault and completely willing to offer up as many scapegoats as needed until the pyre of shame receded to an easily-ignored flicker. It was even willing to find as many “experts” as needed to paint Doe into the “rapist” corner, even if the supporting statements made were facially moronic.

But just asking the judge wasn’t enough. Occidental tried to get FIRE (Foundation for Individual Rights in Education) to pull its coverage while awaiting the judge’s incredulous/sarcastic response.

On Monday, FIRE received a fax from the law firm Sidley Austin LLP asking us to remove the investigative report and adjudicator’s decision from our website until the court had made a decision on the confidentiality of those materials. We did not do so.

Occidental managed to bully one student off of its campus, but its limited reach means everyone else remains unaffected, no matter how many requests its law firm sends out. The judge’s refusal to assist in patching up the school’s self-inflicted wounds should send a message to other entities that find themselves in similar situations. Before attempting a quick burial, consider the possibility that doing so will only result in wider coverage. If you still feel your temporarily wounded pride is worth more than your long-term reputation, go ahead. But don’t be surprised if it only results in more criticism.

[Defense lawyer Scott Greenfield also has some fine thoughts on Occidental (and the law’s intrusion into bedrooms/dorm rooms) at Simple Justice, included here mainly because of this tweet.]

Filed Under: expelled, policies, rape, secrecy
Companies: occidental college

Man Who Raped 14-Year-Old Sentenced To 30 Days In Jail Because Girl Looked Kinda Old And The Internet Is Mean

from the well-okay-then dept

We’ve seen ridiculous requests and results stemming from the concept of how “mean” the internet is. Recall that Prenda Law wanted all manner of documents sealed because the internet was a cruel, cruel place. To be fair, it isn’t like we haven’t seen our share of stories about jerks on the web. Still, I’m pretty sure the internet housing a bunch of meanie poopy-heads probably shouldn’t factor into the decision to have a former high school teacher who raped a 14 year old girl serve only 30 days in jail.

Now, I know what you’re thinking: that didn’t happen. A guy did not rape a 14 year old student and then only do a month in the pen. Sorry, you’re wrong, and the reasons for it are as absurd as they come.

A Yellowstone County district judge Monday ordered a former Senior High teacher convicted of raping a 14-year-old female student who later committed suicide to spend 30 days in jail. Judge G. Todd Baugh sentenced Stacey Dean Rambold to 15 years in prison, with all but 31 days suspended, for sexual intercourse without consent.

Rambold’s attorney, Jay Lansing, argued Monday for the suspended sentence. He said Rambold lost his career, his marriage and his home and has suffered a “scarlet letter of the Internet” as a result of publicity about the case. The judge also said Morales was “older than her chronological age.”

Okay, let’s take these in order. First, doesn’t even 15 years for a teacher raping a student seem on the light side, particularly when that student subsequently killed herself? Secondly, reducing the sentence from 15 years to 30 days for any reason is insane, but when those reasons are that the rapist has lost his family and job while suffering the wrath of a pissed off internet, the justice train has gone off the rails somewhere. One would think any stories of the internet being so cruel to Captain Rapey as to warrant a reduced sentence would have made it into the public light without the defense attorney’s help. To even make this argument is an insult to our concept of justice and accountability.

Finally, what the hell difference does it make that the girl may have looked older than her peers? Several news pieces on this story have shown the young lady, who certainly did look mature for her age, and I can imagine some nightmare scenario in which an adult unwittingly hooks up with a mature looking young person who is underage and faces the wrath of the court as a result, but this isn’t that scenario. Rambold taught at the girl’s school and had every reason to know and/or believe that her age should have come into question, setting aside entirely the fact that teachers probably shouldn’t be banging their students no matter what age they are.

The internet can be a cruel world, but it isn’t as cruel as a teacher raping a 14-year-old girl. It just isn’t.

Filed Under: internet, punishment, rape, students, teachers

Anonymous Participant Who Drew Attention To Steubenville Rape May Face More Years In Jail Than Rapists

from the that-doesn't-seem-right dept

As many of you know, one aspect of the infamous Steubenville rape case was that Anonymous drove a lot of attention to the case, and some participants hacked a website that was a “fan page” for the high school football team, which had two members convicted of the rape, and demanded apologies from those trying to cover up the story, and then leaked some video. That hack and demand actually helped generate significantly more media attention to the case. Now, however, one participant of Anonymous (they don’t really have “members” since there’s nothing to “join”) who had helped publicize the case (though, he claims, did not hack the site) has revealed himself as Deric Lostutter, after a SWAT team raided his house, and he may be facing significantly more time in jail than the rapists.

If convicted of hacking-related crimes, Lostutter could face up to 10 years behind bars—far more than the one- and two-year sentences doled out to the Steubenville rapists. Defending himself could end up costing a fortune—he’s soliciting donations here. Still, he thinks getting involved was worth it. “I’d do it again,” he says.

Once again, as if it needs to be repeated, the CFAA is completely broken.

Separately, the raid of his house seems like yet another extreme overreaction:

At first, he thought the FBI agent at the door was with FedEx. “As I open the door to greet the driver, approximately 12 FBI SWAT team agents jumped out of the truck, screaming for me to ‘Get the fuck down!’ with M-16 assault rifles and full riot gear, armed, safety off, pointed directly at my head,” Lostutter wrote today on his blog. “I was handcuffed and detained outside while they cleared my house.”

If you read his full blog post, there are many more descriptions of overreaction from law enforcement (reposted without correcting his typos or grammatical errors):

I was detained on the back patio, I asked if I was going to jail, they said no, they said who are you, I responded KYAnonymous. They asked me a few questions, asked me for my passwords for my account, stated that I could not tell anyone I was raided or I would face additional charges such as “destroying/tampering with evidence”. They pulled out ALLEGED emails between me and @justbatcat aka Noah McHugh from Noah’s inbox indicating that someone is trying to “sell me down the river”. They stated they had been watching me for a long time, prior to Jim Parks, and that I was a good guy, and even joked around a bit about the good things I have done, none the less, sincere or not, They are the FBI and to them I am Anonymous, the embodiment of a dangerous threat according to their m16 assault rifles aimed at me for a computer.

Before they departed, I asked them for names and badge numbers of each involved. I got none of them as I requested and subsequently it took me the better part of a month just to get a phone call returned for the status of my belongings let alone tracking down my case agent to columbus ohio. I asked Agent Bixby (who in all fairness seems to be fighting for me and believes I am a good guy) the status of my belongings and they had no time table, as of this post they are still with the FBI being analyzed. I was emailed their intent to send out a “Target Letter” which means they are going to try to indict me for a Federal Offense, (most likely a felony and two misdemeanors) to a secret Grand Jury of 23 individuals, for which I can not be present to state my side, nor state my innocence.

So now the FBI is creating chilling effects for those who are seeking to expose and shame those trying to cover up the rape of a minor?

Filed Under: anonymous, cfaa, deric lostutter, hacking, rape, steubenville

TSA Agent Threatens Woman With Defamation, Demands $500k For Calling Intrusive Search 'Rape'

from the don't-be-a-victim dept

Amy Alkon is an advice columnist and blogger who is just one of many people who has had a horrifying and traumatizing experience going through airport security lately. After being pulled aside for an “enhanced” search, she found the process to be so invasive and so in violation of her own rights that she was left sobbing. She wrote about the experience on her blog, noting that she didn’t think the search was just “invasive” in the emotional sense, but flat out physically invasive:

Nearing the end of this violation, I sobbed even louder as the woman, FOUR TIMES, stuck the side of her gloved hand INTO my vagina, through my pants. Between my labia. She really got up there. Four times. Back right and left, and front right and left. In my vagina. Between my labia. I was shocked — utterly unprepared for how she got the side of her hand up there. It was government-sanctioned sexual assault.

Upon leaving, still sobbing, I yelled to the woman, “YOU RAPED ME.” And I took her name to see if I could file sexual assault charges on my return. This woman, and all of those who support this system deserve no less than this sort of unpleasant experience, and from all of us.

After investigating whether or not she could file sexual assault charges, and being told that this was probably a non-starter, she instead wrote about the experience, and named the TSA agent who she dealt with: Thedala Magee. Alkon felt that if people can’t stop these kinds of searches, they should at least be able to name the TSA agents who are doing them.

Magee responded by lawyering up and threatening Alkon with defamation and asking for $500,000 and the removal of the blog post.

Alkon, with the help of lawyer Marc Randazza, has now responded, refusing to back down. Both letters are embedded below, but here are a few key quotes:

Your client aggressively pushed her fingers into my client?s vulva. I am certain that she did not expect to find a bomb there. She did this to humiliate my client, to punish her for exercising her rights, and to send a message to others who might do the same. It was absolutely a sexual assault, perpetrated in order to exercise power over the victim. We agree with Ms. Alkon?s characterization of this crime as ?rape,? and so would any reasonable juror.

Furthermore, even if your client did not actually sexually assault my client, Ms. Alkon?s statements to and about Ms. Magee would still be protected by the First Amendment. The word ?rape? itself has been the subject of defamation cases by far more sympathetic Plaintiffs than your client. In Gold v. Harrison, 962 P.2d 353 (Haw. 1998), cert denied, 526 U.S. 1018 (1999), the Hawai?i Supreme Court held that a defendant?s characterization of his neighbors? seeking an easement in his backyard as ?raping [the defendant]? was not defamatory. This speech was protected as rhetorical hyperbole. Of course, we need not seek out Hawai?i case law in order to debunk your unsupportable claims. Rhetorical hyperbole has a strong history of favorable treatment in defamation actions. See Greenbelt Cooperative Pub. Ass’n v. Bresler, 398 U.S. 6, 14 (1970). This doctrine acknowledges our First Amendment right to express ourselves, even when employing literary license. Accordingly, even if your client?s actions were not ?rape,? Ms. Alkon had every right to characterize them as such.

No free woman should endure what your client did to Ms. Alkon. Fortunately, Ms. Alkon is capable of recognizing injustice, and for the good of us all, she had the courage to speak out on this matter of public concern of the highest order. After Magee?s assault on Ms. Alkon?s vagina and dignity, Ms. Alkon exercised her First Amendment right to recount this incident to others in person and through her blog. This was not only her right — it was her responsibility.

I honestly don’t know if this reaches the “technical” definition of rape, but I am massively troubled, if not horrified, by the idea that a woman who feels sexually assaulted based on what happened above ends up being threatened for saying she felt violated. Talk about adding insult to injury.

Filed Under: amy alkon, defamation, enhanced search, pat down, rape, thedala magee, tsa