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Texas Judge William Brigham censors Freedom of Speech
Freedom of speech activists and attorneys have been following the case Amanda Lollar, Bat World Sanctuary vs. Mary Cummins filed in the 352nd District Court in Texas in 2010. Defendant Cummins supposedly reported Amanda Lollar for alleged animal cruelty, neglect, violations of the health code and building and safety violations. Defendant also supposedly posted on her website the results of Public Records Acts requests.Cummins stated she believes she was sued in retaliation for reporting Plaintiffs to authorities and posting complaints against Amanda Lollar written by government agencies and others. June 14, 2012 Judge William Brigham announced his ruling.
Judge Brigham ruled in favor of Plaintiffs. Defendant Cummins stated "I'm really shocked. Plaintiffs did not prove the elements of defamation. They never proved that I wrote all the items, that they were false or that they suffered any damages. They also did not prove the elements of breach of contract. They did not prove that there was a valid contract, Plaintiffs performed according to the contract, my behavior was a breach of contract or that they sustained any damages. Their own financial records obtained in discovery show that they are making more money than before."
Judge William Brigham sitting in for Judge Bonnie Sudderth stated in 352nd court on June 14, 2012 that he will be signing a permanent injunction against Cummins. From official transcript of the court session:
"So, Mr. Turner, if you will prepare a final judgment in this case and mail a copy of it to the defendant, Mary Cummins, at ************* Los Angeles, California 90015-1640, and in that final judgment compensatory damages of $3 million; exemplary damages of an additional $3 million; a permanent injunction on the items Plaintiffs' 17 and 18; liquidated damages and then attorney fees of $176,700. Mail it to her for her review. Her signature is not necessary. Upon proper submission, it will be signed by the Court."
According to Cummins she did not author or post most of the items in Exhibits 17 and 18. They were supposedly written and posted by third parties on websites she does not control. Cummins stated "Plaintiffs could have gotten subpoenas to see who did indeed write the articles but they didn't. Instead they demanded that the websites delete the material along with the user accounts. They destroyed evidence."
Cummins stated "Most of the items in Exhibit 17 are the results of information act requests. They are complaints written by Government agencies and private individuals against Amanda Lollar over the past 18 years. Every item in Exhibit 18 except one was written by others on websites I don't control. Two articles are not even about Plaintiffs but their attorney Randy Turner who is not a party to the action. The only item I wrote in Exhibit 18 is a press release about my lawsuit against Amanda Lollar and Bat World Sanctuary filed in Federal Court in California in 2011. How is that defamation? Lollar did indeed falsely accuse me of being a 'convicted criminal' in writing and admitted to this in her deposition under oath."
Cummins continued, "The court order is asking for the removal of entire websites and not just the removal of the supposed defamatory statements which Plaintiffs highlighted in yellow in the Exhibits. I feel this injunction will be overly broad. It will cause severe financial damage to other people's websites including Animal Advocates a non-profit organization. I cannot physically comply with this order as I don't have the power to remove other people's websites."
Freedom of speech experts agree. An injunction cannot be against third parties. According to Fed. R. Civ. P. 65(d) enforcement of an injunction against a non-party requires a showing that the non-party was "acting in concert or legally identified (i.e., acting in the capacity of an agent, employee, officer, etc.) with the enjoined party." Cummins stated "I was most certainly not acting in concert with any of the anonymous posters or other websites. I cannot be legally liable for the words of others. I cannot possibly remove other people's websites. I hadn't even seen most of these sites until Plaintiffs handed me the Exhibits in court."
The order is also seeking the removal of anonymous articles posted on Indybay.com and Raisethefist.com. Under § 230 of the Communications Decency Act, operators of websites such as Indybay, Raisethefist cannot be forced to censor articles and other information that originate with a third party, even if those materials are defamatory or otherwise objectionable.
Earlier in the case on May 4, 2011 Plaintiffs requested and were granted a temporary injunction again by Judge William Brigham again sitting in for Judge Bonnie Sudderth. These were the only two times Judge Brigham oversaw this case. From the temporary injunction:
"After hearing the evidence and considering the evidence the Court finds that the defendant has published on the internet defamatory statements.
IT IS THEREFORE ORDERED that Mary Cummins immediately remove from the internet all of the materials concerning Bat World Sanctuary and Amanda Lollar which have been posted or placed on the internet at the following URL's and locations (care2.com, trface.com, friendfeed.com, animalsuffering.com, topix.com, indybay.org, blogspot.com, youtube.com, facebook.com, flickr.com, apnicommunity.com, wittysparks.com, mufti.tv, wn.com, nature-talk.com, videowired.com, yidio.com, fiveprine.org, mefeedia.com, myvido1.com, videomusicpopular.com, onepakistan.com…) .
IT IS FURTHER ORDERED that Mary Cummins is prohibited from posting anywhere on the internet or publishing in any way any of the statements and photographs concerning Bat World Sanctuary or Amanda Lollar that appear at the URL's and locations listed above.
IT IS FURTHER ORDERED that Mary Cummins is prohibited from posting on the internet or publishing in any way any videos or pictures or written text describing procedures or techniques developed by Bat World Sanctuary, including holding techniques, feeding techniques, rehabilitation procedures, episiotomies and births, injection techniques, dental extractions, parasite removal, bathing, vaccinating and treatments of injuries including wing repair and other routine procedures.
IT IS FURTHER ORDERED that Mary Cummins is prohibited from posting on the internet or publishing in any way any videos or photographs or written text describing rehabilitation set-ups developed by Bat World Sanctuary, including medical rooms, feeding rooms, and both rehabilitation and permanent bag caging, housing and flight areas."
Cummins stated that the injunction which was written by Plaintiffs' attorney Randy Turner was void because Plaintiffs did not post a bond, no trial date was noted, the injunction was against third parties and the injunction sought prior restraint.
According to Cummins the only items she posted were a few photos, videos and comments on her own websites. Cummins stated she had not even seen the other websites until Plaintiffs' attorney handed her the list of links during the hearing. Even though Cummins knew the Injunction was void she immediately removed all items she controlled as per Cummins.
The temporary injunction was clearly against third parties and is also prior restraint, prior censorship. According to the Supreme Court of the United States an "injunction cannot enjoin someone from an expression before the expression actually takes place." That would be prior restraint which is unconstitutional censorship.
When Cummins did not remove other people's websites Plaintiff Amanda Lollar and her attorney Randy Turner sent letters and emails along with the injunction to the websites directly demanding that they remove the items.
Attorney Randy Turner sent a letter to Indymedia demanding that they remove the articles or he will add them as a defendant to the lawsuit. Michael T. Risher staff attorney for the ACLU-NC which represents Indymedia responded May 19, 2011 as follows:
"I am writing on behalf of the San Francisco Bay Area Indymedia ("Indybay") and the American Civil Liberties Union of Northern California. It has come to our attention that you have sent a demand to Indybay that it remove a webpage 1 from its website - a webpage that includes texts, photos, and videos concerning Ms. Amanda Lollar and Bat World Sanctuary, as well as links to comments on that initial posting - and have threatened to add Indybay as a defendant in your lawsuit against Ms. Mary Cummins if it does not immediately comply.
Indybay will not remove these materials. Under § 230 of the Communications Decency Act, operators of websites such as Indybay cannot be forced to censor articles and other information that, like the materials here at issue, originate with a third party, even if those materials are defamatory or otherwise objectionable.
Moreover, Indybay has a First Amendment right to display factually accurate materials, including videos and photographs, even if they were acquired unlawfully by a third party. Your demand that Indybay remove the entire webpage, which includes not just the initial post but also links to material supporting and disputing the accuracy of that post as well as information relating to your clients' lawsuit against Ms. Cummins, is clearly overbroad; complying with it would result in the censorship of materials that are clearly protected by the First Amendment, including materials that support Ms. Lollar and Bat World Sanctuary.
In short, whatever the merits of your clients' dispute with Ms. Cummins, Indybay may properly maintain its webpage under § 230 of the First Amendment."
The letter was also sent to ACLU of Texas. Indymedia did not remove the article. Turner did not add Indymedia as a defendant in the lawsuit.
Turner was over stepping his legal rights by demanding that a website remove the material based on an injunction on an unrelated individual. Undeterred Turner then sent communications to Google demanding that they remove the articles from their Google search engine results. Again, Turner threatened to add them as defendant in the lawsuit. Google complied. If one searches for "amanda lollar animal" on Google, one is directed to this "cease and desist" page in ChillingEffects.com. Clearly attorney Randy Turner was abusing the judicial process in order to bully websites into removing the items to censor third parties.
Turner then filed two motions to amend the temporary injunction to add even more links. The hearings were November 4, 2011 and May 10, 2012. Turner added links to articles written only about himself besides links to websites which Cummins stated she had never seen before and does not control. He also included a page in Defendant's website where she posted legal filings from the lawsuit besides commentary. Defendant filed motions objecting to Plaintiffs' motions to amend. She also filed a motion to void the original injunction. Judge Bonnie Sudderth presided over the hearings but did not write an order. Sudderth did state that she would not order Defendant to remove items she did not write or post on websites she does not control.
When asked about Judge Brigham's order Cummins stated "I don't believe that order is fair or just. Plaintiffs never proved the elements of defamation or breach of contract in court. Their own expert admitted they don't know who wrote or posted the articles." Cummins continued "when I saw Judge Brigham enter the court room as the substitute Judge first day of the trial I knew I was in trouble. While Judge Bonnie Sudderth has always been kind and fair Judge Brigham has not. In fact the only other time Judge Brigham presided over this case was the temporary injunction hearing. Right before that hearing attorney Randy Turner came up behind me and said paraphrased 'I've known this Judge for many years. He will sign whatever I put in front of him.' And he did. I believe there is a conflict of interest. A new trial with a different Judge is in order."
Cummins shared a few items which Plaintiffs stated were defamatory at trial. They are below with her comments following.
"'Attended the YouTube Partners event today in Google offices in Venice. Great meeting, great people, GREAT food! Learned a lot! Thanks, YouTube Creators.' Plaintiff is not even mentioned. I believe this page was entered by accident but it didn't stop the Judge from ruling it defamation which must be removed."
"'She claims she is a scientist, scholar yet didn't go past the tenth grade.' Lollar actually didn't go past the ninth grade as per her own admission. She indeed claims to be a scientist and scholar."
"'@batworld being investigated by USDA law enforcement.' They were indeed investigated."
"'Actually people have been complaining to the health dept about her for over 15 years. My report was only one of many.' True. I posted the reports of others."
"'Amanda Lollar keeps libeling me.' She called me a convicted criminal when I am not. I've never been charged with or convicted of a crime in my life."
Cummins stated "how in the world does anyone find that to be defamation and libel per se? It makes me wonder if the Judge even read the Exhibits. They were pretty lengthy. I saw him just briefly flipping through a few pages in the Exhibits."
Below are items from Exhibit 18 which Plaintiffs state are defamatory as per Cummins with her comments following.
"'ACLU tells lawyer Randy Turner that Indybay will not remove article about animal cruelty.' This article is about Plaintiffs' attorney who is not a party to the action. I did not write or post this."
"'Randy Turner responsible for pitbull attack.' This article is only about Plaintiffs' attorney and a dog. It has nothing to do with this case. I did not write or post this."
"'Amanda Lollar, Bat World Sanctuary investigated by authorities.' I did not write or post this. The article appears to be true."
"'Rabies, filth at Bat World Sanctuary in Mineral Wells, Texas.' I did not write or post this. The article appears to be true."
"'Amanda Lollar: Animal Cruelty at Bat World TX.' These are my photos which someone else posted and added comments."
"'Amanda Lollar commits animal cruelty at Bat World Sanctuary.' I did not write or post this. The article appears to be true."
Cummins stated "everything I did indeed post about Plaintiffs was the truth. Everyone told me I wouldn't get a fair shake in Texas but I didn't believe them. They were obviously right. I've never seen such a travesty of justice. I report someone for animal cruelty, get sued for defamation and my life gets destroyed."
Cummins is contesting the court order, filing a motion for a new trial with a different Judge and appealing the decision to the Second Court of Appeals. Cummins is currently pro se but is looking for pro bono representation.
Judge William H. Brigham (Retired): Admitted to the bar 1958, studied at Baylor University and Baylor University, LL.B.
Judge Bonnie Sudderth: Admitted to the bar 1986. Studied at University of Southern California and University of Texas.
Mary Cummins: University of Southern California. Real estate appraiser. Wild animal rescuer.
Amanda Lollar: Bat rescuer.