First Amendment rights in the Internet Age

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Most of us have gotten into arguments over the Internet, but we don’t usually have to call in lawyers to break it up. Imagine how surprised Jeffrey DeShong, a forty-eight-year-old lab technician and LGBT activist from Austin, Texas who is HIV positive, must have been when his longstanding war of words with a rival blogger spilled over into litigation that, though bizarre on the surface, poses crucial legal questions about the First Amendment in the digital age.

DeShong’s partner in reciprocal antagonism is Clark Baker, a former LA cop turned conspiracy theorist and AIDS denier (he prefers “AIDS dissident”). Baker purports that HIV is harmless, and alleges a conspiracy between health agencies and pharmaceutical companies to profit from needless drug sales. “Drug makers needed activists to push drugs, while the CDC needed sick men,” Baker wrote in 2010. “To make that happen, drug companies sponsored dance parties where thousands of men were recruited in baptisms of depravity.” And so on.

In 2009, Baker (who declined through his attorney to comment on this story) founded the Office of Medical Justice, a private investigatory firm with a mission to clear the names of those facing criminal charges after allegedly infecting others with HIV. An accompanying blog, the HIV Innocence Group (formerly “HIV Innocence Project”), archives the cases and promotes Baker’s allegations.

Not so fast, says DeShong. In 2011 he started his own blog, HIV Innocence Project Truth, to debunk Baker’s claims and lampoon his conspiracies. “It was just supposed to be a snarky thing to make fun of them,” DeShong told 429Magazine. Baker’s case studies are full of fabrications, DeShong says, and he often takes credit for dismissals and acquittals he had nothing to do with. The two men had a thorny history already, trading barbs on respective blogs for going on four years now, even to a point that DeShong claims Baker called up his elderly mother on the phone.

Things got even more personal: When Baker cites his law enforcement credentials, DeShong retaliates by noting Baker’s conviction for assaulting a jaywalker in 1991 (the conviction was overturned on appeal when a panel found that the prosecutor’s remarks had improperly prejudiced the jury). So then Baker fires back accusing DeShong of being a “meth addict,” and on it goes.

Unsavory though it may be, this kind of back-and-forth war is not uncommon on blogs and discussion forums. Then Baker upped the ante by actually suing DeShong for libel and trademark infringement (claiming that the name of DeShong’s blog infringes on his own). “I couldn’t believe it,” DeShong says. “I was really scared. In this day and age, anyone can sue for anything.”

Even more baffling, in addition to the formal charges the suit also alleges a conspiracy to be read right into the court records: “Defendant and others like him become the platform through which physicians and drug manufacturers attack the Plaintiffs, using Defendant as a shield from liability. DeShong’s role is to discredit Plaintiff on behalf of pharmaceutical interests,” reads the filing.

Why would Baker’s attorney, Austin-based Mark Weitz, put his name on this? Well, Weitz isn’t talking, responding to 429Magazine’s inquiries only with: “This case is now pending in the United States District Court. While some find it helpful to allow a case to play out in the Court of Public Opinion, that has never been my belief.” But others lawyers say that it may be because, ridiculous though it all sounds, the case is in some ways an opportunity.

DeShong’s attorney, Paul Levy (DeShong retained a pro bono legal team thanks to pleas made by the legal advice blog popehat, adding another online wrinkle to the story) says that the suit has no merit (noting among other problems that opinion-based statements can’t be libelous) but that the case is still a good opportunity to sort out troubling legal questions. For example, can you really use trademark claims to quash online critics? In Baker’s case, no, Levy says, since just referencing the trademarked phrase doesn’t in itself count as infringement.

Otherwise, he notes, nobody would ever even be able to identify the product or service they’re critiquing. “Orthodox Jews believe you can’t say the name of the Lord, but that’s not how it works in trademark law,” Levy says. Even so, the outcome of the case could shore up bulwarks against similar complaints, as companies across the globe try to crackdown brand name use by outside parties. “We’re in this for the right of non-commercial writers to name the business they’re talking about. That’s a matter of broad interest to activists online.”

For that matter, what about the power to intimidate critics with frivolous suits? Both California and Texas have laws, called anti-SLAPP statutes, to penalize bad faith suits, but not all states do, and there is no federal anti-SLAPP law. The Texas provision only went into effect two years ago; Levy speculates that Baker may not have known about it, explaining why the Californian decided to file suit in Texas. What if DeShong lived in Colorado, or Alabama, where there are no such laws? The case provides an opportunity to spotlight the gaps in those protections.

And what about Weitz? What’s his agenda? Levy speculates that he may be less interested in Baker’s complaint as in an opportunity to gain subpoena power over some third party. Perhaps someone cited in the mire of Baker’s conspiratorial approach to civil action.

It’s all a little bit opaque to laymen, but as the Internet puts the power of mass communication into the hands of everyone on the planet, communication law becomes more relevant to the everyday citizen. Fifteen years ago, Baker and DeShong would probably never even heave heard of each other, much less had occasion to go to court after years of ideological jousting. So are we entering an age where any given Tweet or blog comment could be grounds for litigation? Or do the courts have our backs? “People are naïve,” DeShong says. “Not knowing any better, I left myself open for this kind of thing.”

“Sometimes you don’t want to lay your cards on the table,” says Levy. He was talking about litigation strategy, but it might be good advice in general.

429Magazine

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