Tag Archives | Jones v. Minkin

Law Professor Seeks Clearly Unconstitutional Injunction

I also wanted to note that in his lawsuit against Above The Law, Prof. Jones seeks a clearly unconstitutional remedy: “Enjoining Abovethelaw to remove all articles and posts concerning Professor Jones.”

Even if the Above The Law posts are actionable, and can lead to damages liability — which I’m nearly certain isn’t the case — surely the remedy would be at most damages plus, perhaps, an injunction against continued distribution of the constitutionally unprotected speech. (There’s some controversy about whether such injunctions are allowed, even when they’re limited to specific statements that have been found at trial to be unprotected, but most recent cases that I’ve seen allow them, and there’s Supreme Court authority for that result.)

But here, Prof. Jones is asking the court to order total removal (not just redaction) of all posts concerning Prof. Jones, which would include links to and quotes from newspaper articles — clearly constitutionally protected — and the like. That would be a constitutionally impermissible remedy, even if some of the items in the posts were punishable. [...]

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Prof. Donald Jones’ Lawsuit Against Above The Law

Orin blogged about this below, linking to Ben Sheffner’s analysis at Copyrights & Campaigns. I agree with Sheffner that the lawsuit (see the Complaint) is a loser. In part, it’s even downright frivolous:

1. The false light invasion of privacy claim is frivolous because the Florida Supreme Court has expressly and recently held that no such claim is recognized under Florida law (which is the law that would govern this dispute). I would think that this would be an occasion for Rule 11 sanctions against the plaintiff, though I defer on that to others who are experienced in federal civil litigation.

2. The invasion of privacy claim is a loser because (among other things) the First Amendment protects the right to reveal public records such as arrest reports. That’s true even when the arrest report contains the name of a rape victim; it would be equally true when it contains the name of the accused, even if the accused turns out to be innocent (as Prof. Jones claims he is). It’s also possible, as Sheffner points out, that 47 U.S.C. § 230 protects Above The Law because David Lat just posted something that was passed along by someone else (see Batzel v. Smith (9th Cir.)), but it’s not completely certain that the Eleventh Circuit will take this view; nonetheless, Above The Law doesn’t need this immunity, because it’s protected by the First Amendment and likely by the built-in limitations of state tort law.

3. The copyright claim, based on use of Prof. Jones’ picture, seems to be a likely loser because it’s highly unlikely that Jones owns the copyright in the picture — the complaint says that the picture was “stolen from the UM website without permission,” and in my experience such photos are generally [...]

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