It's time for the Popehat Signal: a call for lawyers and citizens to assist a litigant in standing up against unprincipled censorship.
My friend and colleague Paul Alan Levy of Public Citizen — fresh off a free speech victory against the infamous Charles Carreon — has asked for assistance in Medina County, Ohio. This is a classic case where pro bono assistance can help thwart an unprincipled and censorious plaintiff's manipulation of the flaws in our judicial system.
The plaintiff in question is Med Express, a company that sells refurbished medical equipment on Ebay. They have sued Ebay and a South Carolina resident named Amy Nicholls. I will let Med Express' complaint speak for itself:
6. On February 12, lOB, Nicholls paid for the item and shipping via Pay Pal. Promptly after receiving Nicholls' payment, Med Express took the equipment to the Valley City post office. where it was weighed and shipped to Nicholls. Med Express paid the full amount of the shipping cost, but for some reason unknown to Med Express, the equipment was received by Nichols with $1.44 postage due.
7. When notified of the problem, Med Express immediately offered to reimburse Nicholls for the postage due amount. Despite this offer, and before giving Med Express a chance to reimburse her, Nicholls on February 26, 2013, apparently as a result of the $1.44 postage due, posted negative feedback and comments for the transaction on Ebay's website and gave Med Express low ratings in the Detailed Seller Ratings section of Ebay's Feedback Forum, resulting in an unfavorable feedback profile for Med Express. In so doing, Nicholls falsely and deliberately slandered the good name and reputation of Med Express.
You read that right — Med Express admits that Nicholls received a package from them postage due, and is suing her for complaining about it, suggesting that she should have just taken reimbursement and shut up. Med Express is seeking damages and an injunction forcing the removal of Nicholls' feedback. That feedback was, by Med Express' own description, true:
Order arrived with postage due with no communication from seller beforehand.
When Mr. Levy pointed out to James Amodio, attorney for Med Express, that true statements are protected by the First Amendment, Mr. Amodio responded with an open, contemptuous, and contemptible threat to abuse the legal system:
I contacted James Amodio, Med Express’s lawyer, to explain to him the many ways in which his lawsuit is untenable. He readily admitted that, as the complaint admits, everything that the customer had posted in her feedback was true; he did not deny that a statement has to be false to be actionable as defamation; but he just plain didn’t care. To the contrary, he told me that I could come up to Medina, Ohio, and argue whatever I might like, but that the case was going to continue unless the feedback was taken down or changed to positive. And he explained why his client was insisting on this change — he said that it sells exclusively over eBay, where a sufficient level of negative feedback can increase the cost of such sales as well as possibly driving away customers.
This is the ugly truth of the legal system: litigants and lawyers can manipulate it to impose huge expense on defendants no matter what the merits of their complaint. Censors can abuse the system to make true speech so expensive and risky that citizens will be silenced. Regrettably, Ohio does not have an anti-SLAPP statute, so Med Express and James Amodio can behave in this matter with relative impunity. If Ms. Nicholls has to incur ruinous legal expenses to vindicate her rights, the bad guys win, whatever the ultimate outcome of the case.
Unless, that is, you will help Amy Nicholls stand up — not for $1.44, but for the freedom to speak the truth without being abused by a broken legal system.
If you are an attorney practicing in Medina County, Ohio, please consider offering pro bono assistance. Mr. Levy will be coordinating assistance, and I can tell you from personal experience that it is a privilege to work with him. Help give Med Express and James Amodio the legal curb-stomping they so richly deserve. Justice, karma, and the esteem of free speech supporters everywhere will be your reward.
If you aren't an attorney, you can help, too. Med Express should not be permitted to act in this manner without consequence. The natural and probable consequence is widespread publication of their conduct. Help by publicizing the case on Facebook, Twitter, on your blog, on forums, and on every other venue available to you. Ask yourself — would you want to do business with a company that abuses the legal system to extract revenge against customers who leave truthful negative feedback?
Stand up for free speech.
Edited to add: "Med Express" is a mundane name; make sure you refer to and link to the correct one — this one, med_express_sales.
Edited again to add: Thanks to Prof. Reynolds of Instapundit for the link to this. It's possible Med Express didn't think this plan all the way through.
UPDATE WITH AWESOMENESS: I offer my profound respect and appreciation to Jeffrey M. Nye and Thomas G. Haren, who have answered the call. If their names sound familiar, it may be because they stepped up and represented a blogger pro bono just a few months ago. I understand that they will be stepping in to assist Ms. Nicholls pro bono. Moreover, I understand that multiple attorneys are now investigating whether Med Express has filed other defamation suits to silence negative feedback. I'll report when I hear more.
I've said this before: free speech depends on people like Jeff and Tom. Anti-SLAPP statutes are slowly proliferating across the country and more people are becoming educated about First Amendment rights. Ultimately, though, our broken legal system allows bullies to extort silence through the credible threat of stressful, expensive, uncertain litigation even when they have no valid claim. It takes lawyers like Jeff and Tom — and like a number of other good people who wrote me in response to the Popehat Signal — to push back against that problem. I'm just sitting on my ass blogging; Jeff and Tom are putting their skills and many hours of their valuable time on the line during a bad economy. I salute them, and if I ever have to recommend lawyers in Ohio, they will be at the top of my list.
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