May, 04 2010, 11:23am EDT
Court Should Allow Criticisms of Telemarketing Investment Bank to Be Posted on Web, Lift Ban on Comments on 800notes.com
Public Citizen Defends Website Operator in Federal Court, Says Temporary Restraining Order Was Improper
WASHINGTON
A website designed to air criticisms of telemarketers should operate
freely, and a temporary restraining order that blocked comments on it
should not be extended, Public Citizen told a court today.
Public Citizen is representing Julia Forte, operator of 800notes.com
and Whocallsme.com, sites that host online message boards about
telemarketers. With less than 90 minutes' notice to Forte at her home in
North Carolina, Houlihan Smith & Company, an investment banking
firm headquartered in Chicago, went to court April 16 and obtained a
temporary restraining order against Forte. The order, filed in Illinois
state court and since moved to federal court in Chicago, prohibits
people from posting factual comments about Houlihan Smith or any of its
employees until Friday, May 7.
"This temporary restraining order is beyond the pale and is violating
the First Amendment rights of people who want to criticize Houlihan
Smith," said Paul Alan Levy, the Public Citizen attorney handling the
case. "Houlihan Smith waltzed into state court and made incorrect
allegations about the nature of the operator's involvement. If there was
a true defamation case here, Houlihan Smith should go after the Does -
the anonymous posters - not the woman who hosts the website."
This isn't the first time Public Citizen has defended Forte. Rather
than try to sue the people who posted critical comments on the website,
companies have attempted to sue Forte for content on her website, even
though she does not write any comments on the site herself. Federal law
protects Web hosts like Forte from being sued for what the public says
on her website. Moreover, people have a First Amendment right to
criticize companies on the Internet.
Houlihan Smith is trying to dress its defamation claims up as
trademark dilution and claims that Forte embedded information about the
company in title tags, meta-data or other code on the Web pages about
the company, an accusation that is false, Levy said.
Since 2007, roughly 250 messages - many, but not all, unflattering -
have been posted on 800notes.com about Houlihan Smith. Houlihan Smith
said the comments constituted trademark misappropriation, dilution and
right of publicity violations because its name and employees' names were
used in the posts.
The first Forte heard about Houlihan Smith was April 12, four days
before the company went to court, when Houlihan Smith's lawyer sent
Forte a demand letter, insisting that 90 attached messages criticizing
the company be removed from the Internet and future postings be blocked.
Forte responded that Houlihan Smith could defend itself online in the
comments, as she tells other companies complaining about criticism.
Anyone can post on the site, but Forte has instructed commenters to
provide truthful information and to avoid offensive language.
The temporary restraining order expires May 7, but Houlihan Smith's
lawyer is pushing to extend it through a preliminary injunction. Public
Citizen filed a brief late Monday saying there should be no injunction
and that Forte should not be pursued at all - that Houlihan Smith should
instead pursue the posters for their comments.
Houlihan Smith's lawyer is due to respond to the brief on Wednesday;
the case will be heard before Honorable Virginia Kendall in U.S.
District Court in the Northern District of Illinois in Chicago on
Thursday.
L. Steven Platt of the Chicago firm of Arnold & Kadjan is local
counsel for Forte.
Public Citizen's brief may be found at https://www.citizen.org/litigation/forms/cases/getlinkforcase.cfm?cID=604.
Before the temporary restraining order was entered, the comments could
be found at https://800notes.com/Phone.aspx/1-312-499-5900
and https://whocallsme.com/Phone-Number.aspx/3124995900.
Public Citizen is a nonprofit consumer advocacy organization that champions the public interest in the halls of power. We defend democracy, resist corporate power and work to ensure that government works for the people - not for big corporations. Founded in 1971, we now have 500,000 members and supporters throughout the country.
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