Avvo Claims Aaron Kelly & Daniel Warner Law Firm “Defrauded an Arizona Court” to Censor The Media
Arizona ı By Jeff Watterson
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5. Extending the injunction to Avvo violates a provision of federal law, section 230 of the Communications Decency Act, 47 U.S.C. § 230. 3 If there were something actionable in the story posted on Avvo by Arizona attorney Jeremy Geigle, suit would have to be brought against Geigle himself. Avvo, however, is an Internet platform on which both lawyers and consumers may post content, and Geigle’s article is precisely that: content provided by Geigle and uploaded by Geigle to Avvo’s Internet servers. Sirotnik Dec., ¶ 9.
Section 230 protects the provider of an interactive computer service from being held liable for content provided by one of its users. Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc); Austin v. CrystalTech Web Hosting, 211 Ariz. 569, 573, 125 P.3d 389, 393 (App. 2005). Finally, the injunction against publication and public access to Avvo’s story violates the First Amendment as well as federal and state law. It violates the First Amendment in part because it is a prior restraint — an injunction issued against speech without any evidence and without any judicial findings issued after a full and fair hearing that any statement in the article was false or published with actual malice.
As the Supreme Court said in Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971), in declaring a defamation-based injunction to be an impermissible prior restraint, “No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use 3 Section 230(c)(1) provides “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.” Section 230(e)(3) provides, in part, “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 of the injunctive power of a court.”
Even alleged falsity of speech is not a sufficient basis for removing it from First Amendment protection unless the plaintiff satisfies the standards (such as the actual malice requirement) that the Supreme Court has enunciated for defamation claims. United States v. Alvarez, 567 U.S. 709, 717 (2012) And the Arizona Court of Appeals has held, “Absent a clear finding supported by the evidence that a given expression is unentitled to First Amendment protection, a prior restraint should not issue and cannot stand.” State ex rel. Corbin v. Tolleson, 160 Ariz, 385, 396, 773 P.2d 490, 501 (App. 1989).
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