Click. How 'cybersmear' lawsuits can block free speech.

Click. Inmates sue over prison medical studies.


How 'cybersmear' lawsuits can block free speech
© 2000
The Register 20/10/2000 

The right to anonymity on Internet bulletin boards is under threat again. A recent decision by the Florida Third District Court of Appeals ducked hearing an appeal against a lower court order that those who posted on web sites could have their names disclosed by their ISPs, even though the case had not been tried.

This means that Miami-Dade Circuit Court Judge Eleanor Schockett's May decision was upheld, although one small crumb of comfort is that the appellate court's action avoided the setting of a legal precedent because no written opinion was filed.

The defendants are named as "John Does" at the moment, but their identity will now be disclosed to plaintiff Erik Hvlde of Hvlde Marine in Fort Lauderdale, who complained about anonymous posts that resulted in his losing his job as CEO. Yahoo decided to shut down its message board devoted to a discussion of Hvlde Marine's stock without a request to do so from either the plaintiff or defendant - but almost immediately an alternative site was established on Quicken.

Activity on the cybersmearing front has been increasing, as has the use of legal actions to discourage criticism of US companies: around a hundred other cases are currently going through the US courts, but there is still a dearth of precedents to give any useful guidelines. The main legal issue is whether the identity of anonymous posters should be revealed before the court decides if there is a substantive case to answer. It is very easy for a criticised organisation or individual to petition a court and get a subpoena served on an ISP to disclose the name and address of the poster of an allegedly defamatory post - without any prior determination of the merits of the case. Quite often the poster is not even informed this has happened.

The ISP has no legal option but to disclose the name, although some - like AOL - have a policy of giving perhaps 14 days warning of disclosure to the poster, so that the matter could be taken up with the court before the identity is disclosed. Once the plaintiff has this information, a defamation suit may be started, but very often the objective is to find out who the critics are, followed by the dropping of the case - especially if the critic is a disgruntled employee. If the case is carried on, the plaintiff's alleged defamation can easily result in the intimidation of the defendant, with enormous amounts for alleged damages being demanded, despite the guarantees of free expression in the First Amendment.

In cases pending in California and Virginia, it has yet to be decided whether subpoenas can be served on anonymous posters. The American Civil Liberties Union, the Electronic Frontier Foundation, Public Citizen, and the John Does Anonymous Foundation are helping defendants with their legal costs and supplying advice.

Les French acquired Itex Corp's garbage and sent incriminating documents he found in it about misstated earnings to the SEC, which resulted in a $50,000 fine against the company. But while the SEC was looking at the case, French posted messages criticising the company to a message board under a pseudonym, which resulted in a subpoena from Itex to discover his identity - and he was a former employee. He received $40,000 as a result of a false libel accusation by Itex and used this to set up the John Does outfit to help others whose freedom to express opinions was threatened. His foundation offers anonymous email addresses that cannot be disclosed - a donation is suggested - because the website does not have any information about the user's identity.

Stock manipulation or whistle-blowing?
There are two main kinds of bulletin board posts that may cause problems: messages may be malicious and untrue, especially when investors are discussing stocks, while on the other side, there are sometimes fraudulent posts by investors making untrue claims intended to cause the price of a stock to rise or fall - something severely frowned upon by the SEC. Short traders - those who want the share price to go down - are prone to skating rather close to such illegal market manipulation. Few people have any sympathy for the protection of libellers or fraudsters, but there is considerable support by freedom-loving people for a third and very large group of posters who wish to express their opinions within the freedom allowed by the First Amendment. This is the major concern now being actively supported by the civil rights organisations.

Public Citizen and the EFF have filed a motion in Ohio to cancel subpoenas obtained by AK Steel (formerly Armco). This is expected to be heard in the District Court in the Eastern District of Virginia in November and was described as "a blatant attempt to intimidate AK Steels's employees and the public". Some companies have backed down rather than face the wrath of civil rights activist organisations, lest their image suffer even more as a consequence. Public Citizen's staff lawyer Paul Levy likened the Internet to Speaker's Corner in Hyde Park, London, where robust opinions can be expressed - but with the speaker using old technology called a soapbox. He could have added that this right was enshrined in Magna Carta in 1215 (not that you'd notice these days - Ed).

The only argument of any substance for the allegedly maligned is that if they do not take action, it could be taken to be an implicit admission of guilt. They claim that they must therefore take action to protect their reputation, in rather the same way that trademarks have to be protected by warning those who use the trademark without permission, to stop the trademark being challenged for non-enforcement. It is only in cases where there is substantial evidence of passing off a product as being made by a trademark holder that legal action is likely, since most improper use of trademarks is inadvertent and harmless: damage has to be proved.

The legal actions have already had some chilling effects on bulletin board posters, despite the right to privacy being a founding principle of the Internet. Lawrence Lessig (formerly of Harvard but now at Stanford - and well-known for having written an amicus curiae brief at the request of Judge Jackson during in the Microsoft trial), summarised the problem neatly: "If someone charges libel, then the anonymity of a poster should be preserved until the libel is proved. Otherwise the subpoena power can be used to silence anonymous critical speech." The question has become whether John and Jane Doe are freedom fighters or cybersmearers. ®

----- Original Message -----
From: "American Patriot Friends Network" <
To: "American Patriot Friends Network" <
Cc: <
Sent: Thursday, October 19, 2000 10:22 PM
Subject: Vincent Foster FOIA Suit
Vincent Foster FOIA Suit

---------- Forwarded message ----------
Date: Thu, 19 Oct 2000 09:18:56 -0700
From: Allan Favish  -
Subject: Vincent Foster FOIA Suit

[below is a portion of post I recently made to Free Republic]

The 10 photos at issue here are Polaroids. Pristine originals
means the original, without any "touching-up" or any other
alteration and no copies, just the original Polaroid that was
taken out of the camera when the body was photographed.

Notice in the transcript that the judge is inclined to allow
testimony by Miquel Rodriguez. To fully appreciate the
significance of this, you must read the draft motion.

Also notice the position the OIC is in now. The judge has not ruled on whether Rodriquez and Rambusch can testify. If anything  other than the pristine originals are produced now to the judge,  every person who played a role in that production could be in  danger of prosecution if the story of illegal activity as described by Ruddy and Evans-Pritchard is true and later  confirmed by Rodriguez and Rambusch.

I wonder if the OIC is talking to Rodriquez and Rambusch now to find out what they have to say about the Ruddy & Evans-Pritchard accounts.

If I were the Assistant U.S. Attorney defending the OIC who was not involved in the Foster matter before this FOIA case, and who now is given some Polaroids to deliver to the judge, after reading the Ruddy & Evans-Pritchard's accounts, I would want to know for sure whether I was delivering phony pictures to a
federal judge.
Allan J. Favish -


 Vince Foster Five Years After

It's Dangerous to Buck the System

The coroner did not rule on the cause of death. On July 20th, White  House Deputy Counsel Vince Foster, the highest ranking White House  official to die since John F. Kennedy, was found shot in .


 RE: Indianapolis Baptist Temple will not bow to demands that they reject


Indianapolis Baptist Temple will not bow to demands that they reject God!!!

 Carnivore Review Team Exposed!


 ~WACO~ Kenneth Vardon of Vardon Associates & American Patriot Fax Network  introducing Gary Hunt to KCSTV Channel 19 03/11/93 (KORESH SURRENDER

An un-edited Satallite News Broadcast

 ...more un-edited Satellite News

 Janet Reno on CNN 04/19/93

 ~WACO~ Channel 19, Las Vegas, NV 03/11/93

 The following links are important documents of evidence/materials
concerning WACO.

No one is bound to obey an unConstitutional Act and no courts  are bound to enforce it. UnConstitutionality dates from the time of its enactment, not from the decision so branding it."
[16th American Jurisprudence 2nd Edition Section 256, page 177]
 Forget about the law, do what you're told ???

It is preoccupation with possessions, more than anything
else, that prevents us from living freely and nobly.
           -Bertrand Russell

Inmates sue over prison medical studies

 By MARYCLAIRE DALE © Associated Press Writer 10/19/00

PHILADELPHIA (AP) _ Allen Hornblum's first job out of graduate school in 1971 was teaching literacy at Philadelphia's Holmesburg Prison.

Inside the imposing walls, he says he was shocked to see dozens of inmates with adhesive tape on their faces, their arms and their backs.

At first he thought there had been a knife fight, but he soon learned that the bandages betrayed widespread medical experiments that had gone on for 23 years inside the city-run prison.

Hornblum's 1998 book, ``Acres of Skin,'' explored the physical and psychological effects of the testing and inspired a lawsuit filed this week in Philadelphia on behalf of 298 former inmates.

The lawsuit claims the testing exposed the inmates to infectious diseases, radiation, dioxin and psychotropic drugs - all without their informed consent.

It names as defendants the city of Philadelphia; Dr. Albert Kligman, a University of Pennsylvania dermatologist who conducted much of the research and is credited with developing the acne and anti-wrinkle treatment Retin A; the university; and drug makers Johnson & Johnson and the Dow Chemical Co., whose products were allegedly used on inmates.

Kligman, who is now in his 80s but keeps an office at the university, did not return a call seeking comment Wednesday. However, in 1998 he said: ``To the best of my knowledge, the result of these experiments advanced our knowledge of the pathogenesis of skin disease, and no long-term harm was done to any person who voluntarily participated in the research program.''

The university declined to comment on the lawsuit, and officials for the city and Dow Chemical did not immediately return telephone calls.

Johnson & Johnson confirmed that it had tested cosmetic and skin-care products on inmates at Holmsburg during the late 1960s and early 1970s. But it said none of the ingredients cited in the part of the lawsuit it had seen were used in the company's products.

Using inmates for testing was common practice during the 1950s and 1960s, but it is now frowned on by the university, University of Pennsylvania spokeswoman Rebecca Harmon said.

While medical testing took place in other prisons, Holmesburg was well-known among scientists because of Kligman's research and because of the prison's willingness to have its inmates tested in exchange for annual fees in the hundreds of thousands of dollars, Hornblum said.

Most of the inmates involved were black men and relatively uneducated.

``There are men who do have cancer, severe lung problems, all sorts of maladies,'' Hornblum said. ``I am not a doctor, so I can't confirm that there is a direct linkage. You need to have some serious epidemiological studies, but no one has ever been interested.''

The inmates' attorney, Thomas Nocella, said the inmates received only a dollar or two a day to be used as subjects for lucrative commercial product testing. Since they did not know what drugs they were being given, they could not have given informed consent, even if they signed waivers, he said.

``As human beings, they want an apology for being treated the way they were treated back then. Secondly, they want some kind of assurance that medical treatment will be available to them,'' Nocella said.

The lawsuit, filed Philadelphia Common Pleas Court, seeks $50,000 in damages from each defendant.

The medical testing at Holmesburg began in 1951 and didn't end until 1974, when it was banned, said Hornblum, now an adjunct professor at Temple University. The ban was prompted by congressional hearings into allegedly coerced medical experimentation, including Tuskegee University tests that infected black men with syphilis

A few Holmesburg inmates sued the university and the city in 1984, and settled for sums in the $20,000 to $40,000 range.

Holmesburg was closed in 1995.

On the Net:

Prison Activist Resource Center:

University of Pennsylvania:

Philadelphia Prison System: