Law Firm Sues Sender of "Hateful" Email - Conflict with First Amendment

ABA Journal ^ | April 22, 2005

[JBW]

Shearman & Sterling sees things differently. Last month, the law firm filed a trespass and breach of contract action in San Francisco Superior Court involving an e-mail sent to a staff manager’s Shearman.com account. The communication forwarded a post about the manager from Craigslist.org, an online community billboard. The writing, since removed, was posted on the site’s "rants and raves" section.

Filed as a "Jane Doe" action, the lawsuit alleges the sender is a current or recent Shearman employee who was under contract to use the firm’s computers only for legitimate business purposes.

"The e-mail was hateful and racist, and sending it was a verbal assault of one of our staff members," says Shearman partner Stephen D. Hibbard, who filed the lawsuit March 25. Shearman & Sterling LLP v. Jane Doe 1, CGC-05-439829.

[JBW]

Judicial Nominee Janice Rogers Brown is under fire for her dissenting opinion in Aguilar v. Avis Rent-A-Car in which she argued that courts should not be permitted to enjoin speech (even offensive speech) in the workplace. Offended employees can sue for money damages, but courts cannot enjoin speech.

In this case, the law firm is suing over offensive speech in the form of email.

[Calpernia]

I slightly confused. Was this a message board post or an email? The article isn't clear.

Did you follow it JBW?

[L98Fiero]

Man, ther was so much "legalese" in that article I couldn't make hide nor hair of it. I did get, "lawyers want to sue". Sue for being offended, if I read correctly. Scary.

[Bar-Face]

If I read through the gobbledy gook correct, this case has nothing to do with the first amendment. A private person
The first amendment restrains the GOVERNMENT from obstructing free speech not a private party or company.

[JBW]

You're correct that the article was not very clear.

This article at law.com does at better job of telling the story: http://www.law.com/jsp/article.jsp?id=1112864716980

Here's an excerpt:

"This was a hateful and racist e-mail that verbally assaulted one of our staff members. And we have a responsibility to protect our staff and to respond appropriately," said Shearman & Sterling spokeswoman Jolene Overbeck.

A lawyer with the Electronic Frontier Foundation, a nonprofit that advocates for civil rights in cyberspace, says suits against anonymous Internet users are common now.

Most often, the plaintiffs sue for defamation for something posted on an Internet message board, then use subpoenas to try to figure out the author's identity, said Kurt Opsahl, a staff attorney at the San Francisco-based nonprofit.

Shearman & Sterling's suit is a little different. Rather than focus on the posting under craigslist's Rants and Raves section, the firm is basing trespass and breach of contract claims on the e-mail its staff manager received -- at his "shearman.com" account.

By sending the e-mail to a Shearman address, "Jane Doe deliberately and wrongfully misused and caused the continuing misuse of Shearman & Sterling's Internet resources," the suit contends.

[elbucko]

"It’s not unusual for a law firm to want to bring this kind of case. Lawyers generally have very inflated and sensitive egos, which are often bruised," she says. "But generally they don’t because it has to be approved by certain committees, and they realize that if the case gets filed, it’s going to be even more egg on their faces."

Pass the carton.

[JBW]

Thanks for the clarification. I was probably not as accurate as I should have been in naming this post.

What was interesting to me, however, was the conflict between free speech and an employer's responsibility to prevent a "hostile work environment". That conflict was at issue in the Janice Rogers Brown dissent in Aguilar v. Avis Rent-A-Car.

Brown is under fire for reasoning that the courts should not be allowed to enjoin offensive speech in the workplace in the context of a Title VII discrimination case. Her critics have charged that she was too sensitive to First Amendment concerns and not sufficiently sensitive to the needs of employees to be free from harassment at work.

The Shearman v. Doe lawsuit, I thought, was a good example of how work place discrimination concerns could go too far in squelching the free speech rights of others. It was in that context that I posted the ABA Journal article.

Hope this helps.

[L98Fiero]

"By sending the e-mail to a Shearman address, "Jane Doe deliberately and wrongfully misused and caused the continuing misuse of Shearman & Sterling's Internet resources," the suit contends."

Does this set a precedent for SPAM? I'm not a law guy by any means but I am a network administrator. Why not just block Jane Doe's account, heck, her whole ISP if they want?

I sure hope Dennis Kucinich doesn't read this. I have written so much crap about him on message boards that I may get sent up for life.

[JBW]

That's exactly the point.

The law firm is trying to make the argument that sending an unsolicited (or unwelcome) email is trepass. The ABA Journal argument refers to the Intel v. Hamidi case where this argument was tried before, and failed.

Your point is exactly why the law of trespass doesn't really work to prevent spam. If every unsolicited email was a trespass on the recipient, we'd all be liable.

The firm is using a Jane Doe suit in order to avail itself of the court's subpoena power during discovery. It will use that subpoena power to force the ISPs who routed the email to identify their customer. At that point, the law firm will know the identify of the person who sent the email.

Although this is pure speculation, my guess is that the firm thinks it is dealing with a disgruntled employee but can't prove it. The firm is using the lawsuit to identify the sender. If it finds the email was sent by an employee, it now has an easy path to fire the employee.

[L98Fiero]

Thanks for clarifying that. I learn something on FR pretty much every day.