[VAR, VSEA]Skeptical Look at Varian Slurs
The 6th DCA examines the ban on two former employees posting criticism on a Web site.
By Craig Anderson
Daily Journal Staff Writer
"SAN JOSE –A San Jose appeal court panel was extremely skeptical Tuesday about the notion that allegedly defamatory writings on Internet message boards should be treated more leniently than articles in books and newspapers.
The 6th District Court of Appeal heard arguments in the case of Varian Medical Systems Inc. v. Delfino, H024214, in which two former Varian research scientists were sued by the company for posting thousands of messages on Internet boards attacking their former bosses and employer.
A jury awarded $775,000 in damages nearly two years ago, and Santa Clara County Superior Court Judge Jack Komar issued an injunction barring Michelangelo Delfino and Mary Day from posting a variety of assertions about the plaintiffs on any Internet message board.
Jon Eisenberg, an attorney in the Oakland office of Horvitz & Levy who represents Delfino and Day, compared their posts to “graffiti on a bathroom wall,” and said message board readers did not take their allegations and insults seriously.
However, the panel was openly dubious of Eisenberg’s claim, “You saying because it’s on a computer, you’re not supposed to believe it?” Justice Franklin D. Elia asked.
Eisenberg replied that Internet message boards are notoriously free-wheeling venues in which people post all sorts of insults and wild assertions under pseudonyms. He characterized some of his own clients’ posts as “disgusting speech” but insisted no average reader would believe them anyway.
Justice William M. Wunderlich still had his doubts, noting the Yahoo message board devoted to the Varian companies is frequented by current and potential shareholders, “Potential investors don’t go to bathroom walls,” he said.
The Varian case is the first corporate lawsuit against named defendants for posting caustic missive on message boards such as those run by Yahoo. Many companies have field civil complaints against such individuals, on grounds the information is defamatory or infringes their trade secrets.
These lawsuits are typically dropped after companies figure out the identities of the posters, although some individuals have fought back, seeking to protect their identity.
The Varian lawsuit always was different. Delfino, who was fired in 1998, and Day who resigned in 1999, posted numerous messages almost every day blasting Varian and its managers for everything from incompetence to the company’s alleged practice of videotaping bathrooms. They set up their own Web site documenting the litigation, and have posted more than 25,000 messages.
Delfino and Day, who live in Los Altos, repeatedly have vowed to keep posting “until we’re dead.” Varian took an unusually aggressive stance, pushing the case to trial and subsequently asking Komar to jail the defendants for contempt for violating the judge’s injunction.
The panel appeared to be more concerned about Komar’s sweeping February 2002 injunction, which bars Delfino and Day from calling 19 Varian employees liars, sexually promiscuous or mentally unstable. The order even bars material from the public record, such as Securities and Exchange Commission documents, if it is included in a post with information about executive’s home addresses or family members.
Eisenberg said the terms of the injunction amount to unconstitutional prior restraint because it is content-based. “The remedy [for the Varian plaintiffs] is another suit for additional damages,” he said. “I know that’s burdensome, but that’s the price of the First Amendment.”
Lynne Hermle, an attorney with Orrick Herrington & Sutcliffe in Menlo Park, said the “narrowly-tailored” injunction is perfectly legitimate because all the enjoined statements were found to be defamatory by the jury and, separately, by Komar.
”There is no constitutional value of false statements of fact,” Hermle said. “Here, the respondents were attacked in the place designed to do them the most harm. It was the most vicious pattern of attacks possible.”
Eisenberg questioned whether the verdict should be overturned because the case should have been slander, not libel. By posting messages on the Internet, in a forum that is not permanent, Delfino and Day could not be accused of libel because they were not creating a “fixed representation to the eye,” he argued.
The panel voiced serious doubts about that argument too. “If I press print, they would become libel,” Elia said. “I can’t see the distinction.”
A ruling is expected within 90 days."
San Francisco Daily Journal (OCT 1, 2003)
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