Judge Finds No One To Like In Lawsuit Brought By Ripoff Report Against Overreaching State Prosecutor
from the Section-230-but-an-afterthought dept
Ripoff Report has always been targeted by some very creative legal efforts, thanks to its aggressive use of its Section 230 protections. Forced to find other ways to remove allegedly defamatory content, plaintiffs have tried everything from questionable copyright lawsuits to extortion allegations. Not much of it has stuck.
Ripoff Report not only plays Section 230 hardball, but it often brings lawsuits against those who have attempted to remove third-party content through dubious legal means. In this case, covered by Eric Goldman, Xcentric (Ripoff Report’s host/parent company) is seeking a preliminary injunction against Iowa county prosecutor Ben Smith, who has relentlessly pursued the company in hopes of finding a link between certain third party contributors and the company itself.
The judge presiding over the lawsuit isn’t impressed with either side. In the course of this opinion, which partially grants Xcentric’s demand for an injunction, there are no winners: just two brutish louts engaged in questionable tactics.
Goldman notes there is a Section 230 nexus, but it’s only a small part of the overall lawsuit — one that Xcentric has deployed as an offensive weapon to head off further harassment by Ben Smith. (Goldman compares it to Google’s lawsuit against Mississippi attorney general Jim Hood).
Xcentric raises a very questionable CDA claim, arguing that the protections grant it “immunity” from further prosecutorial actions related to content contributed by someone named “Meade.” The judge finds that to be a bit of a stretch.
Plaintiffs argue that they are entitled to immunity under the CDA because – despite their financial relationship with Meade – they were not information content providers with regard to any of the allegedly-unlawful posts about the state’s witnesses. At this stage of the case, however, they have failed to demonstrate a likelihood of success on their claim that the CDA protects them from criminal liability for any potential violation of Iowa Code Section 720.4. This is because there is substantial evidence suggesting that the plaintiffs materially contributed to the alleged illegality of the information at issue.
I am not fully convinced of Magedson’s credibility on this issue. Xcentric paid Meade a large amount of money and Magedson has strong feelings about Richter’s case. I simply do not believe that he was blissfully unaware of what Meade was planning to post.
As Goldman notes, this sort of relationship is much “closer” than most other cases where Section 230 protections are invoked.
This isn’t the only thing the judge finds questionable about Xcentric’s claims and tactics. There’s more criticism contained elsewhere in the opinion. While he does find its First Amendment claims credible, its assertions of Fourth and Sixth Amendment violations are less convincing.
[P]laintiffs contend that Smith violated their rights under the Fourth Amendment. According to their briefs, this argument is based on Smith’s application for, and execution of, a search warrant. The only evidence of record concerning a search warrant is the application and warrant concerning Anna Richter’s home… [Richter was charged with first-degree murder by Ben Smith, something a Ripoff Report review claimed was a bogus charge.]
Even if the plaintiffs had strong arguments on the substantive merits of this claim (and I am hardly convinced that they do), they did not address the crucial issue of standing. Fourth Amendment rights are personal and cannot be asserted vicariously. In order to have standing to complain about an allegedly-unreasonable search, a party must have a reasonable expectation of privacy in the area searched…
Plaintiffs have made no effort to show that they had a reasonable expectation of privacy with regard to Anna Richter’s home or any of the items seized from that home.
Xcentric’s Sixth Amendment claims are even weaker.
Citing no authority, plaintiffs contend Smith violated their Sixth Amendment rights by obtaining and reviewing communications subject to the attorney-client privilege and by filing an ethics complaint against their counsel.
Plaintiffs’ failure to reference supporting authority is a major clue about the merits of this claim. I have not, through independent research, located any case law that might support the claim, as currently framed. Among other things, it is undisputed that Smith has not yet charged plaintiffs with any offense. But see Texas v. Cobb, 532 U.S. 162, 172 (2001) (Sixth Amendment right to counsel attaches only to charged offenses).
Perhaps there is a non-frivolous Sixth Amendment argument to be made, but plaintiffs have not taken the trouble to make it.
And circling back to Xcentric’s First Amendment claims, Judge Leonard Strand finds its demand for an injunction to be more than a little hypocritical.
I also find plaintiffs’ proposed item I (enjoining Smith from “[t]hreatening, intimidating, accusing or otherwise stating that plaintiffs’ lawyers are violating any laws in representing plaintiffs”) to be inappropriate and sadly ironic. After loudly championing the importance of First Amendment freedoms in this case, plaintiffs have proposed a gag order that would restrain Smith’s speech.
But Smith is far from blameless. The judge also smacks the prosecutor around for his obsessive harassment of Xcentric, prompted by criticism of him hosted at Ripoff Report — all of which was done supposedly to “protect” state’s witnesses.
While Smith contends he is acting solely for the benefit of various witnesses who have been targeted on Ripoff Report, I find that he has acted, at least in part, for retaliatory reasons. For starters, I am amazed that Smith offered no direct evidence, such as copies, of any Ripoff Report posts that have allegedly harassed or defamed any witnesses who testified against Richter. Instead, he chose to provide only his own characterizations of the statements at issue…
If Smith’s investigatory tactics have truly been motivated by a desire to protect the State’s witnesses from harassing or defamatory posts on Ripoff Report, it would have been a fine idea for him to offer those statements into evidence.
The judge finds Smith’s actions to be — at least in part — clearly retaliatory. The opinion lists several examples of how Smith’s handling of Xcentric varied greatly from his pursuit of any other entity facing similar charges.
Smith admits that he has worked over a thousand hours and has issued over one hundred subpoenas during his investigation into Ripoff Report. Smith presented no evidence that in his role of Sac County Attorney, he has devoted similar time and resources into other investigations of potential misdemeanor offenses.
He wrote a 119-page, singled-spaced affidavit in support of an application to obtain a search warrant, relying on avowed enemies of Ripoff Report for substantial portions of its contents. He then filed the application as public record, rather than sealing it as is his usual practice. This allowed him, in effect, to publicly air his allegations about the plaintiffs before filing any charges.
More troubling, and what I find to be most persuasive, is what Smith did with privileged and confidential information after obtaining it by his myriad of subpoenas. Upon obtaining communications that clearly appear to be between Xcentric and its own counsel (e.g., Ex. 8), Smith did nothing to advise Xcentric of this fact. Nor did Smith do anything to preserve their confidentiality. Instead, he put at least one such communication (Ex. 8) into evidence in a proceeding and provided other presumably privileged communications to third-parties, including various enemies of Ripoff Report. He also disclosed Xcentric’s financial and banking information to third-parties, thus allowing that information to become public. While disclosing privileged and confidential information to others, Smith did not require those individuals to enter into non-disclosure agreements. He has provided no legal justification for this.
It’s ugly all over, and Judge Strand is only willing to grant Xcentric some of what it requested. The injunction issued prevents prosecutor Ben Smith from doing the following:
A. Bringing criminal charges against Xcentric or Magedson related to any postings related to criticisms of the State or its evidence presented in State v. Richter.
B. Continuing the investigation of Xcentric and Magedson such as sending search warrants or subpoenas to their banks, email providers and other service providers.
C. Reading Xcentric’s privileged attorney-client communications.
D. Disclosing Xcentric’s attorney-client privileged communications to others.
E. Disclosing Xcentric’s financial and banking records to others.
F. Disclosing Magedson’s personal and private communications to others.
G. Disclosing any communications or information obtained through investigation of Xcentric or Magedson.
It would seem items C-F shouldn’t need an injunction. These are things a prosecutor shouldn’t be doing in the first place. Unfortunately, Smith’s past actions prove he’s severely in need of outside guidance. As for Xcentric, it may have a solid First Amendment claim, but its invocation of Section 230 protections is less sturdy than it would normally be, thanks to its for-pay relationship with a contributor.