So how did he file the motion anonymously? Does anyone know his identity?

Second... Amendment should protect AK-47!

HE CALLED ME A NIG[REDACTED] ONCE, AND I'M NOT EVEN BLACK!

ASSHOLE.

BUT THAT'S BESIDES THE POINT. THIS RACIST SHOULD NEITHER BE UNMASKED (OR UN-HOODED) NOR SUED.

Broken first on BLB!

How does causation work when you are one of 40 people who made comments about someone that may have led to emotional distress?

if you can't apportion out the damage you spread it out equally

The subpoena did not say he was AK47. Seems strange that he would identify himself to quash it.

AK47 is a lot less worried about any stigma from this (meritless) claim than he is about having his real name attached to his litany of racist posts on xoxo.

it's so hilarious that this dbag would ceaselessly post the n-word and say things like "suck my d*** you n*****" and "i'm going to go out and kill a n*****" over and over and over again. now that his identity is about to be exposed he has to feverishly put together a brief to hide his identity because, apparently, being a tough-guy on the internet is much, much easier when nobody can learn who you are. what a pathetic, sorry excuse for a human being.

The real question...If you are a psuedonym in a civil case do you have to report it on the bar application?

AK47 was the primary source of the racist bile on autoadmit. Karma's a b*tch!

Just stop and consider this precedent for free speech.

for example, what you just said 3:19 seems as about as outrageous as what AK47 said about the Plaintiff (read: not really that *outrageous* in this day and age, especially on the internet).

Would you want to be subjected to public humiliation b/c someone could file a meritless claim and compel discovery of your identity?

Karma may be one, but AK47 is not the bitch in this worthless case.

3:22/3:23

Hi AK47!

Hey guyz :)
Any lawyers out there looking to have a good time this weekend with some poor law students from Hofstra? Will you take me and my girls somewhere nice...we can talk about the law or do whatev u want :)

Truth is AK47 is guilty only by association. He probably wrote the most innocuous thing cited in the plaintiff's complaint.

I mean some idiot actually emailed the entire Yale Law School faculty with a libelous rant about the plaintiff.

3:28 they sued people for posting links to court documents. I'd say that's the most innocuous. Can you imagine getting sued for IIED for posting a court opinion?

The court will need to balance threats against the right to anonymity. Threats will probably win. There are some limits on what you can say, even on the internet.

This was obviously a threat, since it was written in response to updates that had been posted on the lawsuit. Also, it’s an invasion of privacy at the very least.

"Would you want to be subjected to public humiliation b/c someone could file a meritless claim and compel discovery of your identity?"

But someone CAN do that. You can either stand by what you say, in seriousness or in jest, or not. If you're uncomfortable with being publically identified with your own words, the problem isn't that your 1st Amendment "rights" have been abused, no matter how much you tell yourself that.

he's going to be a good lawyer, well done

Anyone have any idea how long it will take for the court to respond to this motion?

3:46: you are wrong. State action that compels the disclosure of the identities of anonymous speakers have been struck down.

A much-cited 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission reads:

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.

While I thought that the motion was a bit disjointed at times and amateurishly resorted to somewhat of a "throw the kitchen sink at it" approach (by citing literally every case the kid could find on the subject), it was pretty ok. More importantly, it got the message across and turn the judge (or his clerk) onto the right pig trail. If I were the judge, I would probably grant the motion.

ACTUALLY BIGLAWBOARD.COM BROKE THE STORY, NOT THE WSJ LB.

Well, he wanted two women to be raped...seems he's getting some of his own back in the form of this lawsuit. Here's one female attorney who hopes that this (rather poorly drafted) motion to quash is not granted. By all means, exercise your First Amendment right to advocate for violence against women (or trivialize it by joking about it) - but then have the [big boy parts] to stand by your statement. My sincere hope is that the relevant state bar associations consider these defendants' guilt (if proven) in this lawsuit when evaluating moral character and fitness for admission. What utter rubbish, done in the name of "free speech."

3:41,

Of course the issue is a bit clearer where most people would acknowledge that the anonymous speech is puerile. But where the speech has some inherent value above and beyond its propensity to amuse or shock, then public identification could seriously act as a deterrent to speech that society would value above silence.

3:27- My boyz and I will pick you up in our Hummer H2 and drive you to Tempts!

Why is this a "good job"? The guy's so stupid he accidentally waived personal jurisdiction. Nice work.

3:58: protecting free discourse against people like you was the reason why the First Amendment was adopted.

Of course it makes sense that CAPS MAN came over from autoadmit.

4:01: it's a good job because all he cares about is his identity being revealed, not having to defend the suit. AT&T was going to release his name within 10 days unless he did something.

3:58- Just because you, or anyone else for that matter didn't find AK47 funny, doesn't mean he shouldn't be admitted to the bar. If a bad or tasteless joke was the standard, most of the good lawyers would be out of a job.

That being said, stop commenting and go make me a sandwich.

3:40: "This was obviously a threat, since it was written in response to updates that had been posted on the lawsuit. Also, it’s an invasion of privacy at the very least."

I don't agree it was obviously a threat (it clearly wasn't a literal threat and it was pretty vague). And why is posting a sentence on the internet that only mentions a person's first name (misspelled at that) an invasion of privacy?

He did a decent job of showing that most of the claims simply do not apply to him: no copyright claim, no appropriation claim, no libel claim, and no unreasonable publicity claim.

The IIED claim is a close call. But when his specific comment is viewed in isolation from the other garbage on that site, his comment probably doesn't meet the exacting elements required for IIED.

Much as I hate to say it, I think the motion should be granted.

does anyone have pictures of the chicks that filed this suit?

4:01

Lack of Personal Jurisdiction isn't a defense to a subpoena. It will issue from the district in which the records are contained regardless of where he is located. In this case, the applicable ISP records are apparently located in the CDCal so the plaintiffs did actually file it in the right jurisdiction. Nice try at looking smart though. Now back to your doc review.

3:41,

Of course the issue is a bit clearer where most people would acknowledge that the anonymous speech is puerile. But where the speech has some inherent value above and beyond its propensity to amuse or shock, then public identification could seriously act as a deterrent to speech that society would value above silence.

Posted by: Anonymous | February 28, 2008 03:58 PM

__________________________________

But that's NOT the case here, and attempting to equate the two in order to categorize this coward as something other than a coward, and imply that providing him cover is the same as protecting something essential and of value to our democracy only further trivializes our system and alienates rational people from identifying with it.

The only "threat" this fool faces from being publically revealed is that he will have to live with having his face being connected to his words. The state isn't threatening to put him in jail or restrain him from further expressions of his opinions. None of his "rights" as a citizen are under threat--he doesn't have the "right" to be a worthless a-hole and have people think him otherwise.

What law schools are in the central district of california?

he's basically demanding his first amendment right so he can be an obnoxious, racist jackass on the internet. any balancing test would immediately strike that down when put up against (an admittedly weak) attempt by the Does to gain redress for grievances in a court of law.

4:23, my main concern is the chilling effect on "valuable" speech.

And you still don't get it that anonymity is part of our rights under the first amendment.

"3:58: protecting free discourse against people like you was the reason why the First Amendment was adopted."

4:03, I do not think protecting the right of anonymous individuals to discuss raping law students was the reason the First Amendment was adopted. I think that's more of an unfortunate side effect.

4:30, you're right, we should be worried about valuable speech. A threat to rape a specific person is NOT valuable speech.

Wow. A lot of the motion is spent bitching about procedural deadlines... basically it sucks having to defend against a lawsuit.

Also, AK47 has likely left a trail on Westlaw (not LEXIS--see p. 9), and his identity might be ascertainable now through them.

Mr. Efrati may be setting the bar low. The motion's better than something from federal prison, but...

As much as I despise the racist garbage that AK47 spewed all over xoxo, I'm afraid he's right here.

The Doe's vengefully included him (and many of the other D's in the suit) so that he and his career will receive the same public beating that the Doe's took. I empathize with what happened to them, but that doesn't make this comment an IIED.

While the motion was not all that great, I will say that it wasn't so bad for the writer's education level. I presume that it is a 1L or a 2L that wrote it.

Of course 3:58 and 4:23 post anonymously. And why does everyone assume AK47 is a "he"?

"While I thought that the motion was a bit disjointed at times and amateurishly resorted to somewhat of a "throw the kitchen sink at it" approach (by citing literally every case the kid could find on the subject), it was pretty ok. More importantly, it got the message across and turn the judge (or his clerk) onto the right pig trail. If I were the judge, I would probably grant the motion."

Exactly. I certainly read -- ultimately winning -- briefs that were of equal quality. This is an interesting case in an interesting area of law. The court will put in the time to get in right regardless of how poorly the motion was drafted. He's given the court enough for him to win if the law is on his side.

Randazza sounds like an ass.

If he added a "little more skill[]" he might have had a "great chance." But without the addition of that little bit, he will now need charity? Was he teetering on top of a giant triangle?

4:23 - civ pro thuggin' kudos to you.

Anyone who doesn't think his speech is protected doesn't take the constitution very seriously. And it seems to me the issue is whether he was trying to incite imminent lawlessness through his words, mere statements, for example, "parking meter attendants should be shot" said in a context where it is absurd to think the statement will result in someone being shot are nevertheless protected speech.

(there is some SC term of art for it, not fighting words, "riot doctrine" maybe, no the supreme corut would have said it more eloquently)

Further, all the righteous indignation over the flavor of his speech (which is certainly racist, grotesque, disturbing, and stupid) indicates some insecurity on the part of many with the level of competition in the market place of ideas. This sort of nonsense is the price paid (and worth its weight in gold) to make legitimate criticisms. Have some confidence in your fellow countrymen to disregard the rantings of idiots - if the homeless dude in front of the courthouse screams obscenities, it is hardly worth me (literally) making a federal case. I empathize with the girls but it is going to be a long life (even for a yalie) if every sip of verbal abuse along the way merits a lawsuit in federal court.

4:33

Picking up on that Westlaw comment, I wonder if AK47 used his or her law school account to do the legal research behind the motion. I also wonder if that is permitted under the terms and conditions of the free access that Westlaw provides law students (i.e., doing research to deal with a personal legal matter). I don't know the answer to either of those questions.

When can we expect KVN's response?

Wasn't AK47 supposed to file the motion to quash in the NDCal?

Lat, PLEASE post the judge's ruling on the motion

4:53, I get that. I agree that Courts do (and should) protect revolting speech to (a) avoid chilling valuable speech and (b) protect speech that may appear revolting but which time will reveal to in fact be valuable. Again, however, protecting this garbage is not "the reason" the First Amendment was adopted, and this idiot is not a hero or a martyr.

I also don't see how an internet posting in truly anonymous, since you are arranging for your IP address to be recorded every time you access a web page (or something like that). I had a blog once, and was always amused to see where people were accessing it from. That seems to me the best argument against granting this motion, although in general I think I find the motion persuasive.

does preserving these idiots' anonymity have?

but Igotbarreledat thepieryesterday, he said that a particular person should be raped in response to news about the suit that had just been posted on the board.

that was a threat. and it was about a particular person.

nice try though. you must be an awful person to defend such freaks.

the framers would turn over in their grave if they knew people were trying to use the first amendment to protect valueless, particularized threasts. i can't wait until ak47 is outted.

At the very least there's a question of fact regarding whether this was an unprotected threat, and an invasion of privacy. Therefore, this would survive summary judgment, and ak47 gets outtedpwned.

I'm just saying that as a poster on the internet, I don't want to have to start thinking about potential liability if something I say offends someone.

Posted by: Anonymous | February 28, 2008 04:53 PM
__________________________________

But someone being offended by something you say on the Internet and exposing you publically would not be an infringement on your First Amendment rights. You seem to be conflating your right to say something offensive with a "right" to not have people know you said it, and all the potential consequences associated with that knowledge. You have no such right.

5:05: although as a legal matter I think the motion to quash should be granted, I also cannot wait until ak47 is outed.

4:31, I disagree that your anonymity is meaningless b/c it is captured by a log. I mean it would be hard to publish a book completely anonymously too. Your identity could always be discovered through bank records, forced testimony of witnesses, etc. Maybe it would be different if your ISP didn't have a privacy policy though. It seems here that his ISP did have a policy to inform him of the subpoena.

5:05 - You don't know what the framers were thinking. They died long before you were even thought of.

I hope he filed a motion for overlength...

5:10-

Read the motion. It looks like there's a long line of cases saying that in fact there is a First Amendment right to anonymous speech. (It also makes the decent point that the Federalist Papers themselves were written anonymously.)

5:10: i'm not conflating. here is another rundown of your right to speak and do so anonymously:

It is well-settled that the U.S. First Amendment shelters the right to speak anonymously. See Buckley v. Am. Constitutional Law Foundation, 525 U.S. 182, 200 (1999) (invalidating, on First Amendment grounds, state statute requiring initiative petitioners to wear identification badges); Talley v. California, 362 U.S. 60, 65 (1960) (holding anonymity protected under the First Amendment because forced “identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance”). These cases celebrate the important role played by anonymous or pseudonymous writings through history, from the literary efforts of Shakespeare and Mark Twain through the explicitly political advocacy of the Federalist Papers.

As the Supreme Court has held, “Anonymity is a shield from the tyranny of the majority,” that “exemplifies the purpose” of the First Amendment: “to protect unpopular individuals from retaliation...at the hand of an intolerant society.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995) (holding that an “author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment”).

Therefore, courts must “be vigilant... [and] guard against undue hindrances to political conversations and the exchange of ideas.” Buckley, 525 U.S. at 192. This vigilant review “must be undertaken and analyzed on a case-by-case basis,” where the court’s “guiding principle is a result based on a meaningful analysis and a proper balancing of the equities and rights at issue.” Dendrite, 775 A.2d at 760-761. Moreover, that review must take place whether the speech in question takes the form of political pamphlets or Internet postings. Reno v. ACLU, 521 U.S. 844, 870 (1997) (there is “no basis for qualifying the level of First Amendment protection that should be applied to” the Internet).

[edit]Right to Speak Anonymously Online

“Against the backdrop of First Amendment protection for anonymous speech, courts have held that civil subpoenas seeking information regarding anonymous individuals raise First Amendment concerns”. Sony Music Entertainment v. Does, 326 F.Supp.2d 556, 565 (S.D.N.Y. 2004). Accordingly, "the constitutional rights of Internet users, including the First Amendment right to speak anonymously, must be carefully safeguarded.” Doe v. 2themart.com Inc., 140 F. Supp. 2d 1088, 1097 (W.D. Wash. 2001).

Courts have determined that strict procedural safeguards must be imposed “as a means of ensuring that plaintiffs do not use discovery procedures to ascertain the identities of unknown defendants in order to harass, intimidate or silence critics in the public forum opportunities presented by the Internet." Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756, 771 (N.J. Super. A.D. 2001).

“People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in violation of the law. This ability to speak one’s mind without the burden of the other party knowing all the facts about one’s identity can foster open communication and robust debate.” Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999). Otherwise, “[i]f Internet users could be stripped of that anonymity by a civil subpoena enforced under the liberal rules of civil discovery, this would have a significant chilling effect on Internet communications and thus on basic First Amendment rights.” 2theMart.com, at 1093.

http://ilt.eff.org/index.php/Speech:_Anonymity

At the very least there's a question of fact regarding whether this was an unprotected threat, and an invasion of privacy. Therefore, this would survive summary judgment, and ak47 gets outtedpwned.

this is a winner. i assume that discovery has been stayed pending the motion to dismiss and that plaintiff has asked to have expedited discovery to get around the stay. resolution of the motion to dismiss will determine whether there is a valid claim here. i can't imagine that plaintiff has shown that irreperable harm will befall it if it doesn't get this discovery now. therefore, this motion should be granted pending the outcome of the motion to dismiss.

5:33 it goes like this

Complaint
Service
Answers/MTD
Discovery
SJ
Conference
Trial

The P's can't serve w/o discovery so they made a motion to move up discovery to before service. The D's will have a chance to file their MTD after they have appeared (specially or not).

P.S. wasn't there a CP case that said in internet cases jurisdiction in only proper where the D is or in the jurisdiction of the web board?

None of these anonymity cases state that you have the right to anonymous unprotected speech. Also, most of them deal with prior restraints on anonymity (although I don't know if their discussions rely on prior restraints, because I am lazy today.)

AK47 obviously lacks the eloquence of Barack Obama

YES WE CAN USE ANY LANGUAGE WE WANT ON THE INTERNET...or not

BUT WHY WOULD YOU USE ANY LANGUAGE THAT DOESN'T UNITE US IN OUR HOPE FOR CHANGE

AK47 is a first year associate. Don't know where, but he was prominent on XO's bar exam threads last summer. NY or CA bar, can't remember which.

Given that he has a JD, it was a pretty poor effort. There are some good arguments, but it looks like it was written by a petulant ten year old.

I can't believe he used the n-word, gratuitously, in his memorandum. He sure likes saying that word, doesn't he.

Oh, and he writes the memorandum as a he, to the doubter above.

Bleh... AK-47 could have said much the same thing in about half the words. What he *really* needs, aside from a lesson in manners, is an editor.

All political correctness aside, I tend to favor the EFF (free speech) side of things. Granted, I've been a member of EFF since many of you were in short pants. Still, notwithstanding my bias, I don't think any reasonable person would think AK47 was actually advocating sexually assaulting Jane. I submit that most reasonable (i.e., non-hypersensitive) people would view AK47's statement, like the statement that "AK47 should be castrated," as a slightly more colorful way of saying "[name] is an idiot."

The plaintiffs' position, if adopted, would make actionable the hoary old insult of calling someone a stupid motherfarker. I think the Janes' position is close to (but not quite) frivolous. On the other hand, cheers to them for making the stupid son-of-a-bitch sweat.

-- ET

"he said that a particular person should be raped

that was a threat."

I express no opinion on XOXO or its posters, but unless AK47 was in a position, authority-wise, where the Doe(s) could reasonably believe that his expression of opinion was tantemount to Don Corelone saying to his fellas "I think she should have an accident" . . . how is it a threat?

AK47=kozinski clerk?

Well since I had to stay late for a depo and couldn't cut for the SWEET southwest hemi currently blessings these shores:

I don't think it matters if he made the threat at (or "to", whatevs on the prepositional tip) a particular person, the question is really whether, given all the surrounding facts, is what he said reasonably likely to incite folks (on the chat board) to lawlessness; and obviously whatever the girls subjectively felt or thought is irrelevant (reasonablly likely threat is not a tour through plaintiffs head with plaintiff as a guide).

It is personally hard for me to imagine that whatever was said on the chatboard was taken seriously at all.

Moreover, let's assume plaintiff could state a cause of action on these facts, as 6:59 does: half the comments on this website might be actionable - hardly a rule for all seasons.

The whole point of allowing the most inane and low-end speech is that it provides a fail safe mechanism for keeping the good speech in as well. It is worth mentioning that the bellwhether [sic?] for what is good and bad speech at a given time is a function of many different constantly changing factors (culture, media, world events, religious views).

In short, we have to accept the freedom of AK47 to spout nonsense (recall the KKK marching in Skokie - ah Con Law, let me count the ways) to have the gems and wisdom of Ann Coulter (gotcha! I kid, I kid)... To me, point is everyone could insert your own gems and wisdom giver - and lament the AK47 of their perspective.

THUS SPOKE, Igotbarreledatthepieryesterday

p.s. 5:05 - "awful person for defending them"? I can walk through that without getting the bottom of my shoes wet.

Igotbarreledatthepieryesterday, wow, just wow. Your complete inability to grasp first amendment law is amazing. You've successfully knocked a straw man down. As if incitement is the only exception to first amendment protection. I do not have the time to educate someone as dumb as you. No wonder you're in ID.

But yah, you are a bad person if you're so willing to grab at straws to defend AK47. You wouldn't try to stretch the law beyond all reason if you weren't like him. Hell, I bet a few of your monikers have been named in the suit.

Igotbarreledatthepieryesterday IS BELIEVES INCITEMENT IS THE ONLY EXCEPTION TO THE FIRST AMENDMENT PWNED!

I'm just a 1L, but even I can see that the type of speech on xoxo and alleged in the complaint is distinguishable from the type of speech at issue in 5:18's EFF legal rundown. AK47's and other defendants' speech was not on "public matters of importance"; it was not "political conversations and the exchange of ideas"; it was not a "political pamphlet"; and the purpose of the threads at issue on xoxo was not to "foster open communication and robust debate".

Hi David,

On the point about the quality of AK47's brief, you might be interested in my post -- http://www.citmedialaw.org/blog/2008/ak47-files-motion-quash-autoadmit-case

Some sections appear to come right out of our legal guide for citizen media folks.

Hope you're well.
Sam

I wonder if the other named defendants will file motions as well.

Wow is that motion poorly written. The author really needed to drop the thesaurus and focus on his points. It's too bad the poor sentence structure and extraneous big words mask what could have been a good argument.

To those of you questioning his grammar skills: please shut up. I've seen enough poor legal writing in my short career to know that you should probably take heed of the glass houses adverb.

I think it's an excellent brief. It makes all the points, cites a lot of case law in support of his position and manages to portray AK47 as a senseless victim of revenge. Yes, it could've used some editing and bluebooking, but that won't make or break him.

To those of you questioning his grammar skills: please shut up. I've seen enough poor legal writing in my short career to know that you should probably take heed of the glass houses adverb.

I think it's an excellent brief. It makes all the points, cites a lot of case law in support of his position and manages to portray AK47 as a senseless victim of revenge. Yes, it could've used some editing and bluebooking, but that won't make or break him.

His skills aren't *terrible* but the motion could have been a lot better. Unfortunately, how well you argue your position is just as important as the righteousness of your cause.

The sad thing is that a poorly written memo of law in this area can result in a bad decision -- and that can have far-reaching consequences for all of us.

"Bong hits for Jesus." Let's see how far this gets.

ditto -4:09