from the that's-not-how-any-of-this-works dept
Florida. It’s always Florida. Last time it was the city of Tamarac, Florida making bogus trademark claims to try to silence a blogger. And this time, it’s the city of Coral Gables (basically a part of Miami). Apparently the powers that be in Coral Gables are not fans of free speech if it involves people disagreeing with their decisions. And thus, they’re willing to send completely bogus threat letters to Facebook to silence anonymous critics, followed up by filing a lawsuit against Facebook to identify them.
I first came across this story thanks to Alfred Spellman, who pointed me to an article by Jessica Lipscomb about the city suing Facebook, and there have been similar stories in the Miami Herald as well. Reading those stories still left me scratching my head a bit, and part of the issue (again!) is Florida. So I’ve tracked down the full complaint and also emailed the city attorney filing the lawsuit with questions, as I discuss below.
But first, let’s back up and explain what’s happening. Recently, the city decided to hire private unarmed security guards, which has created some controversy, especially with the local police who aren’t happy about these interlopers. So it shouldn’t have been that surprising that someone started posting on Instagram and Facebook criticizing the city. From the Miami Herald:
In May, groups called Protect Coral Gables and “Coral Gables residents who care” posted a video on Facebook and Instagram that shows one girl attacking another, knocking her to the ground, then kicking her and stomping on her head. Three men in vests marked ?security? watch but don?t intervene.
The posts said “$610,000 tax dollars wasted on security guards in Coral Gables” and described the video saying that the “security guards can only watch as a girl is beaten.”
“Don?t let this happen in Coral Gables. Call your elected officials and tell them to step up to the plate and protect our families. Demand that they hire certified police officers.”
The video, for what it’s worth, was apparently from a few years ago in Seattle — which is mentioned seven seconds into the video in question — though the city of Coral Gables insists that the video is misleading and people are implying it’s happening in Coral Gables. From the legal complaint, we can see what the city was mad about (though I don’t understand why they’re so mad about it, as it appears they’re a bunch of thin skinned bullies who can’t take even the slightest criticism).
On Instagram, they were upset about this ad along with the text above:
That seems like pretty normal “citizen speaking up on a matter of public interest” social media content. And, yes, it does seem noteworthy that the post appeared to have merely 59 views at the time the Coral Gables government decided to take action.
The Facebook complaint is even more ridiculous. They’re upset about two Facebook groups. The first was called “Protect Coral Gables” and the second “Coral Gables Residents Who Care.” And the main complaint is that the Facebook group uses the (trademarked) logo of Coral Gables. From the complaint:
I’m at a loss as to how Coral Gables attorneys could possibly think this is infringing. These people are commenting on Coral Gables policies and have created a group about Coral Gables, which is pretty obviously done by concerned citizens rather than the government. There’s no likelihood of confusion here. And, importantly, they’re not using the logo in commerce, so there’s no trademark issue at all. Oh, and we should also point out that the Lanham Act forbids cities from trademarking their logos.
No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it… [c]onsists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof
So, yes, the USPTO may have registered Coral Gables’ logo trademark, but it is obviously invalid under the law.
The whole thing appears to be that Coral Gables officials are upset that their own constituents are criticizing their decision and they decided to “do something about it.”
I mean, it’s fine to be unhappy about it, but it’s another thing entirely to try to silence and then identify those critics. But, hey, Florida. And here’s where things start getting stupid. It appears that the city started searching for any excuse to try to silence and/or identify the critics. In one report, they claimed it was “defamation” or “deception”:
“It upset me when I saw it that someone ? is trying to defame the city,” said Commissioner Frank Quesada. “It?s meant to deceive, it?s meant to scare.”
But, that’s silly. There’s no defamation. There’s no deception. Furthermore, as the Supreme Court clearly states in the famous First Amendment case New York Times v. Sullivan, the government cannot sue for defamation:
What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute.
Now, that’s coming from a Commissioner, not the city attorney, so you’d think that the city attorneys would educate Quesada. They did the opposite.
In one of the articles, Coral Gables’ city attorney Craig Leen makes this ludicrous statement:
“They?re free to put any statement they want to make but what they can?t do is put a video of a terrible incident that did not happen in Coral Gables and make it seem like it happened in Coral Gables,” Leen said.
Except… they didn’t. First, the video identifies itself as happening in Seattle in the first seven seconds. Second, the exhibit in Leen’s own lawsuit clearly says “Don’t let this happen in Coral Gables” which pretty clearly states that the events in the video happened elsewhere. Here’s yet another exhibit showing “don’t let this happen in Coral Gables” appearing directly above the video:
But I’m getting ahead of myself. Before the city filed the lawsuit, deputy city attorney Miriam Ramos sent a cease and desist letter to both Instagram and Facebook (and, yes, Instagram is owned by Facebook), claiming that the social media posts violated the city’s trademarks, even though they clearly do not as explained above. Not only did she send a cease and desist, she claimed that if they failed to comply, she would magically fine them $500 per day.
Instagram General Counsel,
It has come to the attention of the City of Coral Gables that an Instagram page/ad exists under the name “Protect Coral Gables.” The page/ad contains an emblem that is a trademark owned by the City of Coral Gables (see attached as Exhibit A). The trademark is registered in the United States (Registration No. 4,307,912). Further, the page/ad contains content that is erroneous and misleading, including a video of an attack on a woman.
We, therefore, order that your company immediately cease and desist from allowing the use of our trademarked logo on the “Protect Coral Gables” Instagram page/ad and remove the erroneous and misleading content contained in the page/ad. Pursuant to Coral Gables Ordinance 2016-059, failure to comply with this letter will subject Instagram to a code enforcement citation carrying a fine of $500 per day of violation.
Miriam S. Ramos
Deputy City Attorney and City Prosecutor
So… there are a whole boatload of problems with this cease and desist. First, as already explained, what was done by the people protesting the decision was clearly not use in commerce and similarly unlikely to confuse. And, the city can’t trademark its logo. In short, it’s not trademark infringement in any way, shape or form. Second, the last sentence of the first paragraph is painfully misleading, playing up the fact that the video shows “an attack on a woman” but leaving out all context and almost certainly implying that the video violates the company’s terms of service (which it does not).
Finally, the whole $500/day fine thing. As we know, CDA 230 has made it quite clear that Instagram and Facebook can’t be fined over a user’s speech (which is likely why they try to pretend it’s a trademark violation, which is exempted from CDA 230). But, what the hell is Ordinance 2016-59? Well, I’ll tell you that the city doesn’t make it easy to figure that out, but I finally tracked down the ordinance, which became Section 2-203 of the code of the city of Coral Gables, and it says:
(a) The city attorney is authorized to issue cease and desist letters for violation of the City Code, Zoning Code and any other applicable law where such violation causes harm to the city, its residents or its businesses.
(b) It shall be unlawful for any person or entity to disobey the demand made by the city attorney or his/her designee, on behalf of the City of Coral Gables, in a cease and desist letter.
(c) Failure to obey the demand made in a cease and desist letter shall result in the issuance of a code enforcement citation, punishable by a fine of $500.00 per day.
But, uh, what Facebook and Instagram did is not a violation of City Code or (especially) Zoning Code. It’s not a violation of any “applicable law.” This is just a city attorney trying to talk big, and even then can only threaten a $500 fine normally used for those with zoning violations — targeting one of the largest companies in the world. Good luck with that.
Instagram replied to Ramos, noting that the user appeared to have removed the content already themselves, so there was no problem. Ramos responded, somewhat hilariously, saying that if the ad reappeared, she’d start fining them $500 per day. Can you say “prior restraint”? Perhaps they don’t teach that where Ramos went to law school.
On behalf of the City of Coral Gables, the cease and desist letter remains in effect and if another ad is published using our trademark, Instagram will be fined $500 per day.
Please provide this email to your general counsel and ask them to respond to us.
Instagram then responded, finally pointing out that there was no trademark infringement.
Thanks for your report. Based on the information you’ve provided, it is not clear that the content you’ve reported infringes your trademark rights. The reported party appears to be using your trademark to refer to or comment on your goods and services.
For this reason, it does not appear that the reported content is likely to confuse people as to source, sponsorship or affiliation, and we are unable to act on your report at this time.
Intellectual Property Operations
Hats off to you, “Liam.” Unfortunately, the enforcement folks at Instagram’s parent company, Facebook, didn’t bother to look at what was happening, and caved in immediately:
Thanks for bringing this matter to our attention. We removed or disabled access to the content you reported for violating the Facebook Statement of Rights and Responsibilities. We understand this action to resolve your intellectual property issue.
Facebook: you got this one wrong. There’s no violation there.
And, either way, what benefit did Facebook get for complying with Coral Gables’ censorial bullying? It got dragged into court. Because after all this, the city filed a complaint for a “pure bill of discovery.” You may recall the concept of Florida’s “pure bill of discovery” as it played a prominent early role in the Prenda saga. It’s a generally antiquated law to obtain discovery (which is legalese for “force you to hand over info”). Indeed, there’s some argument that John Steele of Prenda moved from Illinois to Florida early on in Prenda’s history in order to use Florida’s pure bill of discovery to uncover the names of people he wanted to shake down. Courts eventually put a stop to it, but here the City of Coral Gables is trying to use it to identify anonymous critics.
The complaint repeats the misleading claim that the use of the logo is trademark infringement, as well as the false claim that the Instagram ad is “erroneous and misleading.” It is neither. Hell, the city’s cease-and-desist and complaint are both a hell of a lot more erroneous and misleading than anything in the Instagram ad. And, again, the language here hints at a possible defamation claim which is not allowed under the First Amendment, as made clear by NYT v. Sullivan. Do the city attorneys of Coral Gables not know this… or do they not care?
Then the complaint demands “any and all records identifying the name, address, telephone number of the entity and/or individual(s) responsible” for posting that content.
Let’s be clear: this is complete unconstitutional bullshit. I’ve emailed city attorney Craig Leen as well as the outside lawyer who filed the complaint, Anna Marie Gamez, asking them to explain how any of this could possibly pass constitutional muster. The Supreme Court seriously frowns on this kind of thing. Beyond the NYT v. Sullivan mentioned above, in McIntyre v. Ohio Elections Commission (which involves a government body going after someone for handing out anonymous pamphlets concerning an issue of public concern), Justice Stevens wrote in the opinion:
Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. Mill, On Liberty and Considerations on Representative Government 1, 3-4 (R. McCallum ed. 1947). It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation?and their ideas from suppression?at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.
I emailed city attorney Craig Leen (as well as the city’s outside attorney, Anna Marie Gomez of the law firm Holland & Knight). Just as I was finalizing this post, Leen responded to my emails insisting that the complaint has no First Amendment problems and that their trademark claims are legit:
I want to assure you that the City views the bill it filed as meritorious, and certainly not frivolous. The City also views its bill as consistent with the First Amendment and trademark law.
When asked how, Leen gave some boilerplate language about trademark:
The City?s trademark was used in the profile pictures as if Coral Gables was sponsoring the site. This does not fall under fair use. It is an attempt to appropriate Coral Gables? mark to induce people to view the post and causes confusion as to whether this highly misleading post is being sponsored or endorsed by the City of Coral Gables. For example, if you look at Exhibit E to the Complaint, at the attachment to the cease and desist letter, it shows the word ?Sponsored? right next to the City of Coral Gables mark. The City is seeking to protect its mark and has a right to do so.
Again, this is wrong. Even setting aside the fact that the Lanham Act forbids cities from trademarking their logos, the exhibit he mentions (Exhibit E) does not at all show the word “sponsored” next to the City of Coral Gables mark, and certainly not in a manner that has a likelihood to confuse. Remember, this is the Instagram post (shown above) that clearly shows that it’s from a group called “Protect Coral Gables” and the text of the image and the text beneath the image make it blatantly obvious that this is someone protesting the City’s actions, not coming from the city itself. The fact that it is a “sponsored” post is meaningless here. This is clearly people of Coral Gables using their right to petition the government.
And the city of Coral Gables is trying to stomp that out. This is very clear abuse of the First Amendment and Leen should be ashamed of trying to pretend otherwise.
It appears that the city of Coral Gables is quickly shooting to the top of the list of thuggish, censorial cities, whose officials can’t handle even the slightest criticism of their decisions. You would hope that, at some point, someone explains to them the nature of the First Amendment as well as two of the most famous cases from the Supreme Court that clearly bar this action. And it doesn’t matter at all how you feel about the initial action (the hiring of security guards). Indeed, as many would guess from how we cover police issues here, I tend to think hiring unarmed security guards is a much better solution than hiring more armed police officers. But how can a city and its leaders have such thin skins that they’d be willing to trample all over the First Amendment over a tiny bit of criticism seen by fewer than 60 people (including the city’s own lawyers)?
Oh, and let us not forget that Florida’s got a nice (relatively new) anti-SLAPP law that seems tailor made for this kind of thing, which might mean that Coral Gables taxpayers will be footing Facebook and Instagram’s attorneys’ fees, should they seek to use the law. If there was already concern about Coral Gables wasting money on security guards, I can’t imagine that it will go over all that well that it’s also wasting it on frivolous witch hunts for anonymous critics online.