Setback for family equals big win for online speech

Thursday, January 27, 2011

Speech in the United States never has been freer than it is now on the Internet.

In every other mass medium — newspapers, magazines, broadcast stations, billboards and pamphlets — the person or entity that publishes a defamatory statement can be just as liable as the person making it.

In cyberspace, however, website hosts are immune from such liability. In 1996, Congress passed the Communications Decency Act, which states in part that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other, simpler words, website hosts are not liable for what others post on their sites, no matter how offensive, invasive of privacy or defamatory.

Not surprisingly, subjects of Internet attacks have tried to outflank the CDA’s protections. So far, those efforts have been unsuccessful, regardless of how sympathetic courts might be. Take, for example, the case of the Blockowiczes.

David Blockowicz is a Chicago-area accountant. He has been married to his wife, Mary, for more than 40 years. They have four children, including daughters Lisa and Megan. Lisa teaches elementary students in the Chicago Public Schools.

In the 1990s, Megan married and then divorced Joseph Williams. David, Mary and Lisa claim that Williams abused Megan and that, since the divorce, Williams and Michelle Ramey have posted false statements about them on numerous websites, including Facebook, MySpace, and

Specifically, David, Mary and Lisa claim that Williams and Ramey, under false usernames, posted statements that David sexually abused his children, that Mary and Lisa were investigated by Nevada Child Protection Services, that Lisa uses several aliases and that Lisa is a thief, con artist and lesbian.

In 2009, David, Mary and Lisa sued Williams and Ramey in federal court in Chicago. (Interestingly, Megan was not a party to the suit and apparently did not cooperate with it.) Though the Blockowiczes sued for compensatory and punitive damages, their primary interest was in obtaining an injunction prohibiting Williams and Ramey from posting further statements about them and requiring Williams and Ramey to remove all previously posted statements. The Blockowiczes also sought an order requiring the websites to remove the defamatory posts.

Although it is unclear whether Williams and Ramey ever received notice of the suit, the judge held that the Blockowiczes made sufficient efforts to serve them and deemed Williams and Ramey served. He then entered a default judgment and an order requiring Williams and Ramey to remove the statements. The judge then went a step further and ordered the websites to make “reasonable efforts” to remove the statements.

Despite the fact that they had not been parties to the case, all but one of the websites complied with the judge’s ruling., however, did not, insisting it was not bound by the order.

The Blockowiczes then sought an order specifically requiring to remove the statements. Citing Rule 65(d)(2)(C) of the Federal Rules of Civil Procedure, the Blockowiczes argued that the court could require to abide by the order because the site knew about the order and was in “active concert or participation” with Williams and Ramey’s defamation.

The judge, perhaps a bit sheepish about entering the injunction against the non-party websites in the first place, denied the Blockowiczs’ request, holding that was not aiding and abetting Williams and Ramey.

On appeal, the 7th U.S. Circuit Court of Appeals affirmed. In a decision announced in late December, the court held that was not in active concert or participation with Williams and Ramey in violating the injunction because it had done nothing since the order was entered.

The site’s and its owner’s “mere inactivity is simply inadequate to render them aiders and abettors in violating the injunction,” the 7th Circuit wrote in Blockowicz v. Williams. “The record indicates nothing more than that [they] have ignored the injunction. … With sympathy for the [Blockowiczes], we conclude that Rule 65(d)(2)(C) is not the appropriate mechanism for achieving the removal of the defendants’ posts.”

The “appropriate mechanism,” the 7th Circuit court suggested, is seeking to hold Williams and Ramey in contempt for refusing to remove the statements. While legally available, that mechanism is of little practical value in a case in which neither defendant can be located. From the Blockowiczes’ perspective, then, their case accomplished little.

For website hosts, however, the case accomplished much, establishing further protection for their sites and making the Internet an even freer environment for speech.