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Threatening Web Site Comments Not Protected Free Speech

A recent decision by the Court of Appeal of the state of California, Second Appellate District in Los Angeles held that a 15 year old Web site owner can sue his schoolmate for posting menacing messages on his personal Web site. The 79 page ruling on March 15, 2010 (available HERE), according to a recent SFGate article (link HERE) is one of the first such rulings in Calif. “to examine the boundaries between free expression and so-called cyber-bullying.”

As noted in the SFGate article, the minor plaintiff “set up a Web site in 2005 to promote an entertainment career after recording an album and starring in a film,” and “[b]elieving – wrongly, the court said – that he was gay, some fellow students at a Los Angeles high school posted comments that mocked him, feigned sexual interest or threatened violence.” The plaintiff had a record album set to be released, and the reference to “starring in a film” was to his lead role in a feature film presented at an international film festival.

In a 2-1 decision, the Court decided that some of the messages (posted on the Web site’s online “guestbook”), including the threats of “I want to rip out your [expletive] heart and feed it to you” and “If I ever see you I’m … going to pound your head in with an ice pick,” conveyed a harmful intent that was not protected by free speech rights. Several other comments were attacks against the plaintiff with the misconception that he was gay. Of particular note is that the students who admitted to making the posts were not suspended or expelled from their school. In the decision, the majority held that the alleged “jocular humor” was not entitled to First Amendment protection under the anti-SLAPP (strategic lawsuit against public participation) statute, stating that the defendants did not demonstrate that the message was protected speech, and that such statements were not made in connection with a “public issue” as referenced within the anti-SLAPP statute itself.

The decision is an interesting read, noting that nearly half is Judge Rothschild’s dissent, where he disagreed with the majority decision to affirm the denial of the anti-SLAPP motion on the grounds that the comments at issue were “true threats” and therefore not constitutionally protected, and that the comments were not in connection with an issue of public interest. As noted within a recent Techdirt article (available HERE), Judge Rothschild noted that the plaintiff didn’t even seem to be bothered by the comments, and “was apparently more traumatized by his father filing the lawsuit.”

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About this Author

Mark Reichel is an associate in Ice Miller's Intellectual Property Group, where he focuses his practice on patent drafting and prosecution, patent litigation support, and general intellectual property matters. He currently focuses on the preparation and prosecution of medical device patent applications, involvement with the Firm's Life Sciences Initiative, active involvement in a number of local not-for-profit and professional organizations.

Prior to joining Ice Miller, Reichel served as a business development manager at the Indiana University Research and Technology Corporation (...

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