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News Flash: Public Conduct Is Not Private, Dipshit!

Apr 6, 2009
By .
Law

Cynthia Moreno hated the Central California town of Coalinga. She didn't hate it because it sounds rather like a sex act illegal in Arkansas. She hated it because she grew up there and found it stultifying and banal. So what did she do? Well, this is the new century. And Moreno — though a student at UC Berkeley — is a young person. So naturally she wrote a rant about Coalinga — creatively entitled "An Ode to Coalinga" — on her MySpace page, which apparently containing unflattering references to the fair city and its inhabitants.

There was a time when such a rant would have been issued verbally to teen friends, or written badly on ripped-out lined notebook paper. By necessity it would have had a limited audience. But as I mentioned, this is the new century. So Cynthia Moreno's Ode was accessible to anyone who read her MySpace page. One such person told another such person, and so on, and before you knew it, one Roger Campbell, the principal of Coalinga High School, had sent it to a friend who arranged for it to be printed on the editorial page of the Coalinga Record, which despite how it sounds is a newspaper and not a reference to a prior conviction. By then Moreno had taken down the Ode from her MySpace page, but it was too late — the Ode was published and attributed to her. Some of the inhabitants of Coalinga took offense and subjected Moreno's family to abuse and even death threats, forcing them to flee the city.

So what happened next? Oh, you know what happened next. Even if this is the new century, this is still America. The Moreno family sued the paper, the school district, and the principal, claiming (among other things) invasion of privacy.

But here's the thing — something posted on a publicly accessible page on the internet is, by definition, no longer private. You might feel that it's private, but your subjective feelings are irrelevant and, frankly, full of shit. As the Court of Appeal said in affirming the dismissal of Moreno's privacy cause of action,

Here, Cynthia publicized her opinions about Coalinga by posting the Ode on myspace.com, a hugely popular internet site. Cynthia's affirmative act made her article available to any person with a computer and thus opened it to the public eye. Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material.

Exactly. The fact that the Moreno family was threatened is unacceptable, and any person caught threatening them should be prosecuted. But ultimately what happened to the Moreno family is no different than if Cynthia Moreno was mouthing off about Coalinga to a crowd downtown and someone wrote a story about it. Words have social consequences. Generally, those consequences have their root in other people's freedom of expression. If you don't want your opinion about something to be widely known and to reflect upon you, then don't shout it in the public square — or don't post it on an unprotected page on the internet, which is the functional equivalent. You may get lucky, and nobody may hear you. The square — both the physical one, and the digital one — is crowded and noisy, after all. But if someone does take notice, blame yourself, not them.

Edit: By the way, I should point out that in the unpublished portion of the Court's opinion, it reversed and remanded the case for Moreno's cause of action for intentional infliction of emotional distress, finding that the trial court should not have dismissed it. Looking into that angle now.

Further edit: No joy finding the unpublished opinion so far. Still looking.

Final edit: Eugene Volokh found the unpublished portion of the opinion, and has thoughts on why it is bad law.

Last 5 posts by Ken

14 Comments
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13 Comments

  1. Mark Kernes  •  Apr 6, 2009 @9:14 am

    Well, I'm not an attorney, but wouldn't reprinting someone's entire rant in a (presumably profit-making) newspaper be a violation of the writer's common law copyright?

  2. Ken  •  Apr 6, 2009 @9:31 am

    Possibly. But this opinion focused on her claim for invasion of privacy. It's not clear whether she sued for common-law copyright.

  3. Scott Jacobs  •  Apr 6, 2009 @1:07 pm

    it reversed and remanded the case for Moreno’s cause of action for intentional infliction of emotional distress, finding that the trial court should not have dismissed it.

    It shouldn't have dismissed the "intentional infliction of emotional distress"? Sweet zombie Jesus, that's retarded.

    She was, at some point, proud enough to post the damned thing where any idiot with a computer and an internet connection could see it, so how is printing it in the paper bad?

    I need to stop reading stuff like this. All it does is raise my blood pressure…

  4. Marc J. Randazza  •  Apr 6, 2009 @2:37 pm

    It would be a copyright violation — and not just common law, it would be a clear violation of her Section 106 rights.

  5. Marc J. Randazza  •  Apr 6, 2009 @2:40 pm

    Well, let me temper that last statement — it would be if it wasn't fair use. But, I'm reading the seeming purpose of the republication, criticism and commentary. Seems like a Section 107 fair use issue to me.

  6. David Schwartz  •  Apr 7, 2009 @2:31 am

    "She was, at some point, proud enough to post the damned thing where any idiot with a computer and an internet connection could see it, so how is printing it in the paper bad?"

    Because of the false implication that she intended it to be printed in the paper. It's one thing to mouth off about how much a town sucks, it's quite a another thing to send a letter to the editor requesting that your screed be published where people who live in that town will read it.

    By publishing it as a letter to the editor with her name, they falsely implied that she intended it to be so published and read by the members of the town. And that is why the case was allowed to continue.

    Note that she hasn't even passed a motion for summary judgment yet. The court simply ruled that she had in fact stated a claim that could be valid under the right facts. This is almost obviously correct.

  7. Scott Jacobs  •  Apr 7, 2009 @7:35 am

    it’s quite a another thing to send a letter to the editor requesting that your screed be published where people who live in that town will read it.

    Obviously, it had already been published where those living in the town could read it – or do they not have teh intertubes in Coalinga?

    While the paper's audience is more focused, it has a far more narrow viewing segment than the internet does.

  8. David Schwartz  •  Apr 7, 2009 @8:30 am

    Scott Jacobs: That doesn't disagree with what I said, it's orthogonal. The point is not that people in Coalinga could read it, the point is whether or not she specifically aimed it at them. Publishing it as a letter to the editor, implying that she so requested, suggests that she specifically intended it to be read by the folks at Coalinga.

    It's one thing for me to tell my friend that your mother is ugly and you to hear about it. it's quite another thing for me to tell it to your family.

    All the Court held is that there could exist some set of facts under which she had a valid claim. This is obviously true, for example, if the facts are such that the Principal conspired with the Editor to mislead the public about her intended distribution of the screed.

    Now, the Principal will have to argue the real facts are not those facts, which is as it should be. (And he may well get a summary judgment, he won't likely have to go to trial.)

  9. Kathy Boatwright  •  Apr 19, 2009 @11:34 am

    You wonder what the intentions of the principal were to print this. I could see if this was the mayor or the governor making these remarks, but an individual? How much weight do we put on individual citizen remarks. Put it in one ear and out the other. Mr. Principal – are you going to publish my comments, too?! Yikes!
    Regardless, it is illegal to use violence against people because you don't like their opinion. Some folks need anger management classes.

  10. Ken  •  Jun 29, 2009 @5:00 pm

    For some reason I cannot fathom, there has been a deluge of searches about "Ode to Coalinga" and Ms. Moreno today, all leading to this post. Anyone want to clue me in as to why?

  11. David  •  Jun 29, 2009 @5:37 pm

    Slashdot!

  12. Michael  •  Jul 15, 2009 @11:51 am

    I'm curious as to what might have motivated death threats. Tom Wolfe showed us how bad it was to write about your home (http://en.wikipedia.org/wiki/You_Can%27t_Go_Home_Again); were Coalinguans mimicking art? ;)

  13. rizzle  •  Aug 30, 2009 @11:02 pm

    "any idiot with a computer and an internet connection could see it, so how is printing it in the paper bad?" @Scott Jacobs

    Who even looks at random people's myspace pages like that? I just want to read the thing, except i get this blog rampant with unsubstantiated opinion and with a site called "POPEHAT" you would think that it would at least not be filled with cussing. is the writer of this blog really even thinking about what he is representing? i'm guessing not.

    i feel sorry for the girl, but she should have known that posting inflammatory writing like that when you know it will get read by people you might not know. I'm so glad I don't live in a small town where stuff like this can come full circle and screw up your life.

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