San Francisco judge throws out Internet libel suit

Wednesday, April 1, 1998

A San Francisco Superior Court judge dismissed a $5,000 libel award this week against a woman who called an Internet business consultant a “liar” during an online chat.

Judge Winton McKibbons' decision reverses a small claims court ruling in favor of Kenneth McCarthy. The freelance journalist argued that his reputation in cyberspace would be damaged by the “slanderous” personal attack.

Stacey E. McCahan, a recruiting coordinator at the accounting consultant firm Arthur Andersen in San Francisco, sent the message: “Ken McCarthy is a liar — be warned” after the two bicyclists had an argument.

McCarthy was investigating the city's Critical Mass bicycle protests, which ended with more than one hundred bikers getting arrested during a ride last July. He contacted McCahan, one of the more visible members of the group, for information.

McCahan said: “I had every right to say what I said, and for someone to sue someone else because they don't like what they say is very frightening.”

McCahan's transmission, sent to hundreds of “sf-critical-mass” listserv members, amounted to negligence, a municipal court ruled in February.

“When I lost the first case I was stunned and shocked at such an irrational decision,” she said. “Now, I'm relieved and happy because important issues were involved other than my individual case. I think the judge took that into consideration.”

McCahan's attorney, Karl Olson, said: “It's a nice victory. A small step forward for the First Amendment.”

The message was simply McCahan's opinion and “flame wars” — or heated exchanges — are customary on the World Wide Web, Olson had argued.

“It involved a relatively small amount of money but some very large principles,” said Olson, a First Amendment attorney. “I would hope that it would give people who are engaging in speech a little bit more comfort, and people who are thinking about filing lawsuits a little bit more caution. …The remedy for insults, or speech you don't like, is counter speech; it doesn't lie in the courts or the legislature either.”

McKibbons, who gave no explanation for his ruling, ordered McCarthy to pay $221 in attorneys fees and costs. McCarthy represented himself.

There will be no appeal, Olson explained, because neither party can appeal the Superior Court ruling since the case came from a small claims court.

[In a statement later, McCarthy said McCahan was actually working for the office of the San Francisco mayor, and that the case was not a First Amendment or free-speech issue.

“I was, at the time,
investigating misconduct by [the mayor's] office, including, but not
limited to, the use of police violence against participants
in an event Ms. McCahan was actively involved in undermining,” McCarthy said.

“There was no argument or 'flame war' preceding Ms. McCahan's
attacks on me. Her postings were calculated to, and indeed had the
effect of, discouraging witnesses from coming forward. Someone
also took pains to submit these postings to the major search
engines to insure they were displayed prominently when my
name was searched on the Internet,” said McCarthy.

“Attorney Karl Olson did not present a 'First Amendment'
defense as he claimed to reporters. He: 1) pointed out
to the judge that I was a “muckraker” involved in
tarnishing the reputation of law enforcement and local
politicians, and 2) claimed that I, by virtue of the fact that
I used the Internet, had forfeited my rights to protection
against libel and defamation as a private person. This meant
that as a public person I not only had to prove the offense,
but also had to prove calculated malice with intent to
cause injury, an evidentiary mountain (that) I, representing myself,
was not able to climb,” McCarthy said.

For more information about this case, see this site.]

Robert O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression, said it's too soon to label Internet libel suits a trend.

“There are remarkably few of these cases partly because in most of the online libel situations deep pockets are not involved,” O'Neil said.

“People who use these communication systems such as a newsroom or chat group should come to understand that they're communicating to wide, extensive and diverse audience.”

Differences between Internet libel and print libel center around “procedure, rather than substance,” O'Neil said. “The basic standards of liability are the same as far as substance (goes); however, there are fascinating questions involving jurisdiction over a Web site and its venue, as opposed to a newspaper, for example, which circulates physically.”