Censorship by Litigation
copyright 2004
Susan Blumenthal
leftysbarandgrill.org
Free speech isn’t free. It is the exclusive domain of those who can afford an attorney to defend it.
Nowhere is the bitter truth about the state of America’s treasured First Amendment more brutally evident than in forums created specifically to exercise free speech: Internet message boards.
Stock and investment discussion websites are supposed to be forums in which opinions about public companies can be exchanged freely and anonymously. However, if a company finds the on-line discussions objectionable, it can censor its anonymous critics with a John Doe lawsuit.
Public companies filing John Doe lawsuits have no real interest in recovering damages when they sue message board users. Instead, they use the courts as their weapon to crush dissenting discussion. Faced with the steep legal fees necessary to mount a defense, most John Does publish humiliating public retractions of their statements on the message board and sign an agreement with the company never to post again.
Not these Does.
While the circumstances are typical—being sued for messages posted on the financial discussion website, Raging Bull—our John Doe suit is a particularly bizarre and outrageous example of the extreme lengths to which a corporation will go to silence its critics. It also demonstrates how—as many message board veterans have long suspected—companies actually participate in the very forums they seek to silence.
In mid-June 2004 I received an email notice from Lycos, the parent company of investment message board Raging Bull. The terse note stated that I and two other individuals were targets of a John Doe lawsuit for messages we posted regarding Advanced Optics Electronics, Inc. (ADOT) whose stock was trading for less than a penny. I posted using the screen name Athena_Sword. Lycos was subpoenaed for my information and the information of another poster, ProudAmerican15. Oddly, ADOT was not subpoenaing the information of the first defendant named in the suit, Inkogkneeetoe. ProudAmerican15 and I were given three weeks to quash the subpoena or Lycos would release our personal information to ADOT.
I was not entirely surprised by the notice from Lycos because ADOT had been conducting a desperate campaign to stop my posting for months. They posted threatening and libelous messages on Raging Bull that sometimes included my full name or initials. When that didn’t work they tried bribery.
What did surprise me about the lawsuit was the maliciousness of their efforts to harass me by making it expensive and difficult to defend myself, and, that they sued ProudAmerican15. ADOT had already filed a John Doe lawsuit more than six months earlier in the state of New Mexico where they do business and where I live. Instead of simply adding me to that lawsuit, they filed a new lawsuit in Nevada, where ADOT is incorporated. Eventually they would file a lawsuit in Massachusetts, where Lycos is located, and an ADOT stockholder in Miami-Dade county Florida would file suit “for the use and benefit of” ADOT “and its officers directors and employees.”
Why would a company go to such extraordinary lengths to silence a critic? Most of my posts on Raging Bull—besides banter with other posters on the message board— were excerpted from the company’s own press releases, SEC filings, and information from the SEC’s official website.
I pointed out that the press releases announced products that were never produced and business development plans that never developed. ADOT’s SEC filings revealed that ADOT had produced $0 in revenue since its inception and I pointed out that the company’s CEO had collected nearly $600,000 in compensation in 2003. My posts revealed ADOT’s associations with a who’s who of convicted felons and stock promoters including Max Tanner. Before Tanner’s federal prison incarceration for stock fraud, he was ADOT’s registered agent and briefly served on the company’s board of directors. Ironically, the attorney representing ADOT is one Mont E. Tanner with the same exact address as Max Tanner’s former law office in Las Vegas, Nevada.
The inclusion of ProudAmerican15 in the complaint was a thinly veiled attempt to make it appear the lawsuit was not focused exclusively on me, and to build a bogus “conspiracy”. ProudAmerican15 was no more critical of the company than any other so-called “bashers” but “Proud” did engage in playful board banter with me. In addition, we had developed a close e-mail friendship. Besides being just plain mean-spirited, ADOT’s lawsuit could jeopordize ProudAmerican15’s employment.
ADOT knew my identity because I had worked for Biomoda, a private company with early cancer detection and treatment technology developed at Los Alamos National Laboratory. ADOT had invested in Biomoda and owned approximately 15% of the company’s stock. In a book I’m writing about my mis-adventures with penny stock companies, I devote several chapters to my tenure at Biomoda. The summary of that twisted tale is that ADOT, with only a minority stock ownership in Biomoda, managed to gain control of the company and put ADOT management in charge while notifying only a few Biomoda stockholders. ADOT then announced in numerous press releases its intent to take Biomoda public with a $6.00 a share IPO.
I sued Biomoda and ADOT for salary owed me under my employment agreement. ADOT filed a $1.7 million counter-suit or fraud claiming everything on my resume was false, thus leading to Biomoda’s failure. I sued back for malicious abuse of process. ADOT settled and I got most of my back salary, minus attorney’s fees and taxes. ADOT’s management and Biomoda’s former president knew personal details about me; a Biomoda shareholder knew my screen name. Message board Hard Knocks Lesson 1: Never reveal your screen name.
ADOT’s agents posted vicious messages on Raging Bull. Sexual themes were popular:
“Athena was probably that woman who broke up former head of Biomoda's marriage and then tried to commit suicide so the tory [sic] goes”
“I wonder if athena was anything more than this guy's mistress since I believe I heard that she was an airhead, beautiful face and then blimped up when he left her?”
When several months of relentless character assassination and threats didn’t stop my posting, ADOT’s next move was bribery. The first offer came via e-mail from my attorney: “Tech writing for the[m] at $1,250/ mo, 20hrs/ mo, guaranteed, wether[sic] you write or not. They think you are posting stuff on raging bull, under the screen name sword, something or other, and think this would stop that.” When my attorney and I discussed the “offer”, he related that his response to ADOT’s attorney was, “You’ve got to be kidding.”
After bribery failed, ADOT’s next strategy was to set me up for a message board lawsuit. The same posters who mysteriously “knew” details of my personal life began a campaign to link me to Inkogkneeetoe, a message board wacko who made rambling, angry posts and displayed the ultimate message board rudeness: posting in all caps. Occasionally “Inky’s” posts were humorous in a twisted sort of way. One Inky post proclaimed an appointment with an attorney to which I responded, “Way to go Inky. Do you have an RB [Raging Bull] email? eom” That post would be the centerpiece of ADOT’s suit against me. Later Inkogkneeetoe would make death threats to ADOT management and employees. ADOT, via its posting agents, continually associated me with Inky based on that post and another to which I responded. When Inky stated an intent to contact the SEC, I replied with the correct spelling of the name of ADOT’s CEO. Oh, and there was one more post ADOT cited in their complaint, one in which I provided the contact information for the SEC office in Salt Lake City.
The ADOT agents repeatedly spammed messages on the board stating I worked in concert with “terrorist” Inkogkneeetoe who had threatened to poison ADOT’s CEO with anthrax. Months before the lawsuit all of Inky’s messages were removed by Lycos for violating the Raging Bull Terms of Service prohibiting posts threatening physical harm. However, ADOT’s posters kept the “threat” alive with daily references to those posts. Inky’s unique posting style, with frequent references to God being on his/her side was curiously similar with the all caps style to a rabid ADOT supporter who also claimed God was on his side and indeed, guided his investment in ADOT.
ADOT’s complaint lumped Inkogkneetoe, Athena_Sword, ProudAmerican15 together, stating “Posts by defendants are false, misleading, and/or contain incorrect information, or threaten or imply violence, thereby damaging ADOT, and its officers, employees and shareholders”. Without Inkognkeeetoe’s threatening posts as exhibits, ADOT’s lawsuit had no substance.
Unable to afford an attorney, I turned to JohnDoes.org. Les French, the founder was himself and the target of a number of John Doe lawsuits. With settlement money from a countersuit he established JohnDoes.org and the Anonymous Internet Foundation to help victims of censorship by litigation. As Les French was preparing a pro se (legalese meaning not represented by an attorney) response for the Nevada suit, ADOT threw a sucker punch: They initiated another lawsuit in Massachusetts, the state where Lycos is located. Even more bizarre, I learned about the suit on Raging Bull from one of ADOT’s agents:
EMERGENCY COURT ORDER..We just learned from talking to some of ADOT's lawyers that a Court in Boston just issued an emergency order directing Lycos to promptly turn over all the info they have on some bashers who are here for the sole purpose to destroy… You and selected others will be put on notice via publication here
ProudAmerican found an attorney in Massachusetts to represent us. However, after reviewing the case and charging Proud $800, the attorney told us there was nothing he could do because ADOT’s lawyers had exploited a bizarre piece of Massachusetts law that allowed that state’s court to compel discovery on a lawsuit in another state.
Les French was undaunted, insisting we should file a motion to quash anyway. Unfortunately, we had only one day before the filing deadline. That meant I would have to use my real name to file the motion. Had there been more notice we could have submitted affidavits certifying our identities that the court would have held under seal. Since ADOT already knew my identity, the pro se motion to quash was our only option to protect ProudAmerican’s identity. Les stayed up all night writing it and called me at 3:00 a.m. so we could review and revise together via e-mail and phone. His dedication to the First Amendment was awe-inspiring. On a personal level I was deeply touched, that he give so freely and generously of his time to help total strangers.
The motion to quash was filed with the Massachusetts court via FAX at 8:00 a.m. EDT. That afternoon the former president of Biomoda called me with a new ADOT “offer”: $2500.00 a month. Plus “everything will go away and they won’t say bad things about you on Raging Bull.” My reaction? “Yeah, then they’ll sue me for extortion, which they’ve already accused me of. No thanks.”
Several days later, I checked the Nevada courts website and learned the legal battle had moved back to Nevada. This time it was a hearing to determine if Lycos should be held in contempt for not releasing the information that I had already provided in my motion to quash: name, address and phone number. This court-clogging move to determine an identity they already knew was made even more absurd because ADOT’s counsel in Nevada had actually contacted me by phone wanting to know why I posted on Raging Bull. I told him, “to exercise the First Amendment”. That’s true, but I also, felt I was providing information in the public interest that might cause people to wonder how ADOT managed to acquire Biomoda’s technology. Maybe they would wonder if Los Alamos National Laboratory, notorious for misplacing disks containing nuclear secrets, might have also mis-placed a life-saving technology—developed at taxpayer’s expense —with a company that was using it to attract investors to an IPO. And I wanted people to know that Biomoda’s registrant on its first SB2 was Feng Shui Consulting, convicted stock fraud felon, Allen Wolfson’s company.
To the surprise of ADOT’s counsel I “appeared” at the hearing by phone. When it was my turn to speak the judge, clearly hostile to pro se defendants, was condescending. “Ms. Blumenthal, this isn’t Judge Judy or TV court. This is real district court.” With this demeaning introduction, heart pounding, I countered Mont Tanner’s drama queen description of death threats to ADOT management and employees by pointing out that those threats were made by the first defendant in the lawsuit, Inkogkneeetoe. Lycos’ counsel had already argued that, in cases of serious threats, Lycos immediately turns over all user information when provided a police report.
ADOT had no police report.
Then I asked the big question: Why, if the threats were so serious, did ADOT not subpoena the user information for Inkogkneeetoe? The judge gruffly granted an extension on the hearing and instructed me to get an attorney.
After I got off the phone and my heart rate returned to normal, a flash of insight hit me: ADOT must have already sued Inkogkneeetoe. I drove from my home in the mountains to the courthouse in Albuquerque. My “flash” was confirmed. ADOT had filed a complaint against Inkogkneeetoe. The information subpoenaed from Lycos returned a bogus email address and an IP address that traced back to American Online. AOL stated there was no link between that particular address and a specific individual. On May 12, 2004, more than two weeks before the John Doe suit was filed in Nevada, ADOT filed a notice of dismissal without prejudice against the actions of “John Doe VIII (inkogkneeetoe)” in the Second Judicial District of New Mexico.
Driving home from the courthouse with the Inkognkneeetoe pages from the 150 page complaint, my cell phone rang. It was the former president of Biomoda with yet another “deal” for me. This time it was $2500.00 a month and I could have my attorney draw up the contract. I saw a pattern developing: each time I prevailed in court, ADOT upped the bribery ante.
ADOT’s stock has lost more than 33% of its value since they filed suit against ProudAmerican and me, a common occurrence for companies that choose the contentious route to silence critics. Our legal battles against ADOT continue with the most recent turn of events a lawsuit in Florida. For now we remain victorious because the identity of ProudAmerican15 has not been revealed. However, the drain on my time as well as mental and physical health has enormous. ADOT’s on-going threats via Raging Bull that I will lose my house as a result of my battle are a direct hit on my deepest fears. There have been suspicious vehicles parked across from my property and the character assassination on Raging Bull is unrelenting even hinting at email hacking:
“proud-did athen[a} DENY she got $65K or more from ADOT? Did she deny she sold them her expiring options and got more cash and did she deny that she held off bashing until after she got the $ in her hand? we know you have oddles of emails back and forth”
We do have “oddles of emails back and forth” —as close friends, not bashing conspirators.
Corporations will continue to trample the First Amendment with John Doe lawsuits unless more John Does fight back. One of the most outrageous statements ADOT made in its lawsuit is the claim, “Defendants were in no way privileged to publish the posts.” Wrong. It is our privilege as Americans. ProudAmerican15 and Athena_Sword remain profoundly grateful to the true American heroes and tireless advocates of the First Amendment, the Anonymous Internet Foundation and JohnDoes.org. They recognize censorship by litigation puts a price tag on free speech, making a mockery out of the First Amendment and all those who have sacrificed to protect it. In a small and modest way, ProudAmerican15 and Athena_Sword are defending the First Amendment too, simply by fighting back against censorship by litigation. |
