Technology Law Update

The Election That Refuses To Die: Ninth Circuit Refuses En Banc Rehearing in Vote Swapping Web Site Case

Last August, the Ninth Circuit ruled in Porter v. Bowen that Web sites that enabled "vote swapping" amongst voters in the 2000 presidential election were protected by the First Amendment. As we related in our prior blog on the case, the vote-swapping plans of the Web site organizers were abandoned when Bill Jones, then California Secretary of State, threatened the organizers of one of the vote-swapping Web sites with criminal prosecution under various California election and penal laws. Three of the vote-swapping organizers subsequently brought an action against Jones in federal court seeking declaratory and injunctive relief, and damages. The case was twice declared moot, but a panel of the Ninth Circuit disagreed and ruled favorably on the merits of the organizers' First Amendment claims.

Yesterday the Ninth Circuit refused to rehear the case en banc, over the objection of Judge Kleinfeld, joined by Judges Bea and O'Scannlain. Judge Kleinfeld's opinion dissenting from the denial of the petition for rehearing en banc presented the issue as follows:

This case is about whether the First Amendment protects from prosecution people who buy votes. Instead of cash, or beer and cigars, the buyers offered promises. The special twist, a very important one, was that the purpose of the scheme was to effectuate what amounted to people voting in states other than their own. The not very special twist is that instead of standing around the polling place to buy votes, or chartering buses to bring voters to other states, the scheme used internet sites to enable people to exchange promises. The deals were in the form, "if you promise to vote for my preferred candidate in your state, I will promise to vote for your preferred candidate in my state."

The promises of people utilizing the Web site were not mere words, the dissenting judges argued, even if they are not enforceable:

The exchange of promises is an ordinary means of making a contract, whether legal or illegal, and no one has doubted for centuries that promises form consideration for contracts. Contracts are how people buy things of value, sometimes promises to sell goods in exchange for promises to pay, promises of quantity discounts, or, as in this case, promises to vote for the other person’s preferred candidate. The panel considered it important that the vote-swaps operated "without money changing hands," but a promise is consideration whether it involves cash or not. The California statutes, like those of all the other states in this circuit, prohibit vote buying for consideration other than money, as well as for cash. Of course, the buyer of the vote may be cheated by secret nonperformance of the promise he bought, and have no legal remedy, but a promise is good consideration even if the promise is unenforceable, and even if it is "not binding or against public policy."

People who want to influence an election, the judges commented, should get off their duffs and do it the old fashioned way, not set up a vote-swapping Web site:

If people in one state want people in another state to vote a particular way, they can go there and ring doorbells, send them letters, buy advertisements on their media, publicize arguments on the internet, and otherwise explain to them why they ought to vote a particular way. But they do not have a constitutional right to buy their votes, with money or promises.

The refusal to rehear the case en banc does not finally dispose of the case, of course. There is the possibility of a petition for certiorari to the U.S. Supreme Court, although it seems unlikely that the Justices will want to revisit issues involving the 2000 presidential election.

 

Attorney's Faxed Legal Commentaries Are Unsolicited Commercial Advertisements Under the TCPA

A New York appellate panel has upheld a treble-damage award of $21,000 under the Telephone Consumer Protection Act against an attorney for sending who sent unsolicited faxed "commentaries" concerning his field of practice. There is some irony in the fact that the attorney's practice consisted primarily of representing plaintiffs in attorney malpractice cases.

The majority of the panel upheld the trial court ruling that the faxed commentaries constituted unsolicited commercial advertisements under the TCPA, because, among other things, the commentaries contained the name of his law firm as well as contact information and the addresses of the attorney's Web sites, and indirectly advertised the availability and quality of the attorney's services:

Further, all 14 of the faxes sent by Bluestone to Stern constituted unsolicited advertisements. While Bluestone contends that his faxes were purely informational and do not explicitly offer services, his position defies common-sense. The faxes at issue certainly have the purpose and effect of influencing recipients to procure Bluestone's services, which are for the specialized field of legal malpractice claims. First, the faxes include the name of Bluestone's law firm and contact information. Second, while the faxes do not directly offer Bluestone's services as a legal malpractice attorney, they indirectly advertise the commercial availability and quality of such services. Not only do the faxes invite contact for further information but they also list two web sites that boast Bluestone's specialization in attorney malpractice suits. Thus, it is clear that the faxes indirectly proposed a commercial transaction and had the effect of influencing recipients to procure Bluestone's services. Contrary to the dissent's viewpoint, Bluestone's motive is not a factor in the determination that these faxes are advertisements. It is not necessary to probe that deeply, since simply looking at the faxes in the context in which they were sent is sufficient to establish them to be advertisements. The faxed "commentaries" are not just information with an author's name attached, but include the name of the author's law firm and direct readers to his web sites which advertise his professional services. By merely stating on the faxes that they are not advertisements of the availability of services does not make it so, nor should it allow Bluestone to evade the prohibitions of the TCPA (see Rudgayzer & Graft v Enine, Inc., 4 Misc 3d at 7 [finding that a fax mentioning the defendant's company name and contact information that pitches a service under the guise of providing information about it is an advertisement within the meaning of the TCPA]). Moreover, Bluestone's professional role as an attorney specializing in legal malpractice claims supports the conclusion that the faxes advertise his services (id. at 8,[finding that the sender's identity, motives, purposes, and intentions are relevant to whether the fax was merely "information" or "advertising"]).

Judge Kavanaugh dissented, commenting among other things that imputing a promotional purpose to the sender of the faxes "carries with it an enhanced risk that this statute will be applied to ban what is otherwise fully protected speech under the First Amendment."

Judge Kavanaugh went on to say:

The TCPA's constitutionality is grounded in its limitation to commercial speech (Central Hudson Gas & Elec. Corp v Public Service Comm. of N.Y., 447 US 557, 562-563 [1980]). It cannot be used to ban noncommercial speech - and by its terms does not seek to do so. Keeping with that commitment, it should not be read to ban what is otherwise noncommercial speech simply because under the circumstances presented it could be argued that the transmission in question may have some commercial value to the sender. There can be no doubt that fully protected free speech can also contain some element of self-promotion (see generally Bigelow v Virginia, 421 US 809, 818 [1975]; Ginzburg v United States, 383 US 463, 474 [1966]; Thornhill v Alabama, 310 US 88 [1940]), and the mere existence of such a reality does not serve to convert such speech into a [*8]solicitation which may be banned by this statute."

Stern v. Bluestone, No. 1926, 111895/05, 2008 NY Slip Op 611 (N.Y. App. Div., 1st Dept. Jan. 31, 2008)

Opinion: http://www.nycourts.gov/reporter/3dseries/2008/2008_00611.htm

Judge Gets Personal in Dismissing Lawsuit Against Attorney Ratings Site

One of the dubious highlights of 2007 for attorneys was the debut of the Avvo attorney search site, which features a ranking system that permits input from the general public. The site was started by attorneys, and apparently utilized public lists from court systems and other sources, such as bar disciplinary bodies, in generating profiles of attorneys. As one might expect, not everyone was pleased with the results, and inevitably, the site was sued by a group of attorneys who alleged that the site violates the Washington Consumer Protection Act.

Just before the holiday break, the attorneys' complaint was dismissed by Hon. Robert S. Lasnik. Browne v. Avvo, Inc., No. C07-0920 (W.D. Wash. Dec. 18, 2007). 

The court rejected the attorneys' argument that the ratings system was defective because its results were inconsistent with their qualifications and experience, including the designation of one of the plaintiffs as a "Super Lawyer." Judge Lasnik is not impressed with the "Super Lawyer" designation, as he related in a footnote:

Ironically, plaintiff Browne relies on his designation as a “Super Lawyer” by Washington Law & Politics magazine as evidence that he could not possibly deserve an “average” rating from Avvo. Why one should assume that the attorney rating system developed by Washington Law & Politics is any better than that used by Avvo is not specified, and the Court is not inclined to make such an assumption. In 2004, the undersigned imposed sanctions of almost $40,000 against another supposedly “Super Lawyer” for engaging in unreasonable and vexatious litigation tactics. In its opinion affirming the decision, the Ninth Circuit said, “[t]he record supports the district court’s finding that [this Super Lawyer] knowingly pursued frivolous claims and engaged in obfuscatory litigation tactics.” Athearn v. Alaska Airlines, Inc., No. 03-35140, 2004 WL 2726045, at *2 (Dec. 1, 2004). Nothwithstanding the fact that impartial decision-makers had recently found her conduct sanctionable, this counsel was re-elected a “Super Lawyer” in 2005 for the third year in a row.

Judge Lasnik made it clear that he is not impressed with ratings systems at all, in fact, referring to his own designation as one of the "leading 500 judges in the United States" in 2006:

Comparisons and comparative ratings are often based as much on the biases of the reviewer as on the merits of the reviewed: they should, therefore, be relied upon with caution. For example, in 2006, a new magazine called Lawdragon purported to identify the 500 leading judges in the United States. The undersigned was chosen to be one of the privileged 500 and was described as follows: “Seattle’s judicial star cites Bob Dylan in opinions while providing contraceptives and protecting orca whales.” The Leading Judges in America, Lawdragon, Winter 2006, at 72. What can one say about such nonsense? As my parents would tell me when I informed them of some of my amazing achievements as a child in Staten Island, NY, “that and five cents will get you a ride on the ferry.

The court ruled that the ratings constitute First Amendment protected because they are statements of opinion, not statements of actual fact:

Rather than seeing the Avvo ratings for what they are – “that and $1.50 will get you a ride on Seattle’s new South Lake Union Streetcar” – plaintiffs Browne and Wenokur want to make a federal case out of the number assigned to them because (a) it could harm their reputation, (b) it could cost them customers/fees, or (c) it could mislead the lawyer-hiring public into retaining poor lawyers or bypassing better lawyers. To the extent that their lawsuit has focused a spotlight on how ludicrous the rating of attorneys (and judges) has become, more power to them. To the extent that they seek to prevent the dissemination of opinions regarding attorneys and judges, however, the First Amendment precludes their cause of action.

The court also summarily dealt with the Communications Decency Act immunity defense raised by Avvo, noting that the plaintiffs had "disavowed any claim based on content that Avvo obtained from a third party."

Back to School Advice to Students: Study Hard, Drive Carefully, and Think Before You Blog

The high school controversy presented by Doninger v. Niehoff (D. Conn. Aug. 31, 2007) is worthy of a script treatment for a Hollywood musical. A combination of, say, "Footloose" (Kevin Bacon as a high school student who defies a ban on rock 'n roll at the senior prom) and "Election," (Reese Witherspoon as an overachieving school class president candidate driving a teacher crazy).

It all started when a high school junior, by all accounts a model student respected by students and teachers alike, got annoyed by a decision made by her high school administration regarding a music festival she was organizing. She and some friends went to the school computer lab and sent e-mails (apparently from a non-school Web mail account of one of the student's parents) to rally adult support to reverse the decision. The resulting flurry of responses directed to the school administration was upsetting to school officials, who upped the ante by threatening the continuation of the festival. Back to the computer (this time from home), where the student posted about the incident on her LiveJournal blog, erroneously reporting (according to the administration) that the festival had been cancelled. Her public post on the blog used offensive slang to refer to the administrators (we'll direct you to the opinion for the details, lest we receive demerits for repeating it). She also suggested that readers (presumably other students) might wish to contact one of the administrators to object to the decision, to annoy (we'll abbreviate the actual term used as "p.o.") the administration even more.

When school administrators ultimately learned of the blog post, they decided to punish the student by administratively withdrawing her candidacy for senior class secretary, despite an apology. Their view was that a student who chose such means to redress a grievance (including the use of offensive language) was not an appropriate candidate for class officer.The student's parent argued that the punishment was an overreaction that did not fit the crime, but school officials refused to back down. The student gained a moral victory, however, when she received a plurality of votes via a write-in campaign, which featured a scene in which students wearing t-shirts supporting the student were barred from the school election assembly until they removed them. But another student was allowed to assume the senior class secretary post. And litigation ensued.

In the Hollywood version of this drama, the student would triumph, but Hollywood doesn't take into account current U.S. Supreme Court jurisprudence regarding the First Amendment rights of students, i.e., Morse v. Frederick, 127 S. Ct. 2618, 2623 (2007) (the "Bong Hits 4 Jesus" banner case, holding that school administrators may discipline on-campus speech that is "clearly disruptive of and inconsistent with the school's educational mission to educate students about the dangers of illegal drugs and to discourage their use.") When the parent brought an action in federal court asserting the student's First Amendment rights, this is what the court had to say:

It is important to emphasize, however, that there are no villains in this case. Despite her momentary lapse of judgment, Avery is a good student and a good citizen at her high school. She is, as one witness put it, one of the "good kids." Nor are Ms. Niehoff and Ms. Schwartz tyrants bent on curbing the constitutional rights of all who criticize them. School teachers and officials have a difficult job. They must teach our children to think critically and to object to what they perceive as injustice. But school officials also must inculcate the values of civil discourse and respect for the dignity of every person. That is an especially difficult balance to achieve in a society where the public discourse to which students are exposed is often crude and even hurtful. In this case, the school administrators may – or may not – have struck the right balance. But the Court is convinced that the Constitution does not forbid their action. And in the end, that is all that this Court can, or should, say.

Preliminary injunction denied.

Your view of the result may likely differ depending upon your personal view of First Amendment rights (and whether you have a fractious teenager still living at home). But one takeway from this case is clear, and mentioned by the court in the opening paragraphs of the opinion:

Social networking websites and blogs (or web logs) have in recent years become an important part of the lives of young people, and many adults. But as some have come to discover to their chagrin, postings on such sites and blogs are often very public and the statements and information posted can have consequences for the blogger.

Doninger v. Niehoff, No. 3:07cv1129, 2007 U.S. Dist. LEXIS 64566 (D. Conn. Aug. 31, 2007)

Vote-Swapping Web Sites Held Protected By First Amendment

You probably thought that the litigation fallout from the 2000 presidential election was long over by now (remember "hanging chads"?) but that's not the case. The Ninth Circuit today released an opinion addressing an issue first raised only a few days before that election, i.e., whether Web sites that encourage "vote-swapping" are protected by the First Amendment. It ruled that they are.

Recall that in what was expected to be (and was) an extremely close race, supporters of candidate Al Gore sought to harvest votes from the supporters of third party candidate Ralph Nader. Here's what was afoot, as described in Porter v. Bowen, No. 06-55517 (9th Cir. Aug. 6, 2007):

It was in this highly charged political atmosphere that Appellants created two websites, voteswap2000.com and votexchange2000.com, that encouraged people to “swap” their votes and provided email-based mechanisms for doing so. The vote-swap mechanisms enabled third-party supporters in a swing state such as Florida or Ohio to agree to be paired with major-party supporters in a “safe state” such as Massachusetts or Texas, whereby the swing-state users would promise to vote for the major-party candidate and, in exchange, the safe-state users would promise to vote for the third-party candidate. The point of the swaps, at least when agreed to by Nader and Gore supporters, was to improve Gore’s odds of winning the Democratic-pledged electors in the swing state without reducing Nader’s share of the national popular vote (which needed to exceed five percent in order to qualify his party for federal funding in future elections).

The vote-swapping plan was abandoned when Bill Jones, then California Secretary of State, threatened the organizers of one of the vote-swapping Web sites with criminal prosecution under various California election and penal laws. Three of the vote-swapping organizers subsequently brought an action against Jones in federal court seeking declaratory and injunctive relief, and damages. The case was twice declared moot, but the Ninth Circuit disagreed and ruled today on the merits of the organizers' First Amendment claims.

On the merits, we hold that Jones violated Appellants’ First Amendment rights. The websites’ vote-swapping mechanisms as well as the communication and vote swaps they enabled were constitutionally protected. Although California certainly has valid interests in preventing election fraud and corruption, and perhaps in avoiding the subversion of the Electoral College, these interests did not justify the complete disabling of the vote-swapping mechanisms. Because we conclude that Jones’ actions were not sufficiently tailored to advance the State’s legitimate interests, we do not reach Appellants’ further claims that those actions were an unconstitutional prior restraint, violated the dormant Commerce Clause and were ultra vires under state law.

The court carefully distinguished the voluntary agreements between voters that were facilitated by the vote-swapping Web sites from unlawful vote-buying:

Both the websites’ vote-swapping mechanisms and the communication and vote swaps that they enabled were therefore constitutionally protected. At their core, they amounted to efforts by politically engaged people to support their preferred candidates and to avoid election results that they feared would contravene the preferences of a majority of voters in closely contested states. Whether or not one agrees with these voters’ tactics, such efforts, when conducted honestly and without money changing hands, are at the heart of the liberty safeguarded by the First Amendment.

According to the plaintiffs, they are interested in organizing vote-swapping Web sites for the coming presidential election in 2008, although there is no mention in the opinion of exactly who would be swapping votes with whom. They'll need new domain names. FYI, votexchange2000.com is still up and running, but voteswap2000.com is in the domain name graveyard, "parked free, courtesy of GoDaddy.com!"

Expletive-Filled Criticism On Social Network Site Deriding School Policy Deemed Protected Speech

Offensive messages authored by a juvenile criticizing school policy and posted on a MySpace Web page and falsely ascribed to the school principal are protected political speech under the Indiana constitution.   A.B. v. State of Indiana, No. 67A01-0609-JV-372, 2007 Ind. App. LEXIS 694 (Ind. Ct. App. Apr. 9, 2007).

Utah State Child Protection E-Mail Registry Not Likely Unconstitutional As A Prior Restraint Or Preempted By CAN-SPAM Act

The Utah Child Protection Registry Act (CPR), which makes it a crime to send commercial communications to "contact points" on the state's child do-not-email list concerning certain products or service, is not unconstitutional or preempted by the federal CAN-SPAM Act. Free Speech Coalition, Inc. v. Shurtleff, No. 2:05-cv-949, 2007 U.S. Dist. LEXIS 21556 (D. Utah. Mar. 23, 2007).

Child Online Protection Act Held Unconstitutional

The Child Online Protection Act (COPA), which imposes federal civil and criminal penalties for exposing minors to material that is "harmful to minors," facially violates the First and Fifth Amendment rights of providers of content on the World Wide Web. American Civil Liberties Union v. Gonzales, No. 98-5591 (E.D. Pa. Mar. 22, 2007).

Blogger Contempt Citation Upheld By Federal Appeals Court

A blogger's constitutional rights were not violated by a grand jury subpoena directing him to testify and to produce a video tape that he made of a protest demonstration. In re Grand Jury Subpoena, No. 06-16403, 2006 U.S. App. LEXIS 23315 (9th Cir. Sep. 8, 2006) (unpublished).

Attorney General Ordered To Refine Contentions In Long-Running Constitutional Challenge To COPA

The U.S. Attorney General must respond to plaintiffs' contention interrogatories inquiring into the "rationales, practices, policies or internal rules" utilized by the Department of Justice in determining whether online material is "obscene" or "harmful to minors."  ACLU v. Gonzales, No. 98-5591, 2006 U.S. Dist. LEXIS 47481 (E.D. Pa. July 12, 2006) .