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Blog: Jack "Out of the Box"

Welcome to Jack "Out of the Box." This is a spin-off of the Firm's InfoLaw Newsletter, much like "CSI: Miami" is a spin-off from "CSI." Except without all the corpses. I plan to update the blog at least weekly. Really. It's not like when I used to promise my mom to clean my room once a week. I'm more mature now. And of course, the InfoLaw Newsletter will continue every two weeks. The blog will feature shorter pieces, and ideally, reader feedback. Should be fun. Oh yeah, and informative.

Do The Right Thing

Nov 19, 2013

Film director Shelton J. “Spike”  Lee currently finds himself in an unwelcome joint -- a state court in Seminole County Florida. And he is trying to bring down the curtain. You may recall that in the midst of the George Zimmerman circus, Lee received and retweeted a Florida address that was supposed to be Zimmerman’s. Funny thing was, it actually was the home of an elderly couple named Edith and David McClain. In less than a week, Lee publicly apologized and paid the couple $10,000 to settle their claims. Seemingly the show was over at that point.

But the McClains, who found new lawyers post-settlement, filed suit anyway – kind of a sequel. According to the new complaint, Lee was “negligent” and he’s responsible not just for his retweet, but for the retweets of all of the unidentified third parties who retweeted his retweet. The McClains contend that Lee only settled claims arising directly from his retweet, but not for claims arising from subsequent third party retweets. This is why people hate lawyers. Or at least one of the reasons. 

Lee’s motion to dismiss argues that the Florida court should dismiss the new lawsuit for three reasons. First, in the settlement agreement, the McClains agreed to bring any litigation over the settlement to New York. This provision was no doubt inserted so that Lee would not miss any Knicks games. Second, the claims in the lawsuit were released in the settlement agreement. Given this language from that agreement – “[the McClains] knowingly, and willfully release and forever discharge Mr. Lee from any and all actions, causes of action, suits, claims, or complaints and rights of any nature whatsoever which the McClains now have against Mr. Lee, whether or not known to the McClains, including but not limited to any and all actions, suits, claims or complaints and rights of any nature relating to or arising out of the twitter posting” – you can see where Lee is coming from. Finally, Section 230 of the federal Communications Decency Act makes Lee immune from liability. That statute protects a “user” of an interactive computer service from liability for forwarding information created by a third party. 

Several thoughts. First, who knew that Lee’s real first name is “Shelton?” No wonder he goes by “Spike.” Second, I think the McClains may have an uphill battle here on all three fronts. Courts will typically enforce forum selection clauses, so long as they’re not buried in the fine print of a form contract. Here, the McClains had lawyers review the settlement agreement and weren’t pressured or confused about the term. Hard to see the court not enforcing this. 

It’s also hard to see how the broad release language doesn’t bar this suit. I mean if you sit on a table, that doesn’t make it a chair. And however the McClains wish to characterize their claim, it “arises” from Lee’s Twitter posting. That is, there’d be no claim had Lee not retweeted. And unless there’s some language in the Settlement Agreement that limits the release (and I’d be very surprised if there were) I think the McClains are stuck.

The Section 230 claim is interesting, because typically that section comes into play when a Web site operator is sued for comments posted by third parties. There are not as many cases dealing with the situation where a user of the service is the defendant.  But the statutory language is clear --   “[n]o . . . user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider.” Lee received, but did not create the original tweet. And the complaint certainly appears to hold him liable as though he were the speaker. It sure seems like he’s covered. But that’s a little trickier. And if the Florida state court opts to dismiss based on the first two reasons, it may just avoid that issue entirely.

Of course, even if Shelton (I’m going to call him that from now on) prevails here, the “victory” will come only after he spends lots of time and money. The ultimate lesson? Think twice before you tweet. 



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