by Tresa Baldas
The National Law Journal
June 05, 2008
Phony profiles on social networking sites like MySpace and Facebook are triggering lawsuits by school officials and public figures who claim that their reputations are being damaged online.
Specifically, plaintiffs are suing individuals who are creating fake profiles of them, replete with derogatory comments, obscenities, unflattering photographs and, in some cases, sexually offensive information.
The litigation has sparked an intense debate over the First Amendment, with some attorneys claiming that online bashing through fake profiles is protected free speech, particularly when it's a parody, satire or criticism. Others argue that online imposters are ruining lives, stealing identities and engaging in defamation.
In Texas, an assistant principal is suing two students over a MySpace page that falsely depicted her as a promiscuous lesbian with a sex problem, listed her phone number and where she worked, and contained obscene comments, pictures and graphics. Draker v. Schreiber, No. 4-07-00692-cv (Texas App. -- San Antonio).
In Indianapolis, a judge ordered Facebook to turn over information that could identify who set up a fake profile of a high school dean that contained "inappropriate" information. Archdiocese of Indianapolis v. John/Jane Doe, No. 49D120805CT20682 (Marion Co., Ind., Super. Ct.).
In suburban Chicago, a town president is asking a judge to order MySpace to identify who set up a false profile of him that contained slanderous and libelous information about him and the town. Dominick v. MySpace, No. 2008L005191 (Cook Co., Ill., Cir. Ct.).
Murphy S. Klasing, who is representing the assistant principal in Texas suing over a fake MySpace profile, called fake Internet profiles a form of "cyberterrorism" that don't warrant First Amendment protection.
"I don't think the Constitution protects somebody who is lying about their identity and pretending to be someone else and painting them in some false light," said Klasing of the Houston office of Austin, Texas-based McGinnis, Lochridge & Kilgore.
"[O]nce you find out who it is that's doing it -- going after them makes sense. We've gotta get this stopped," he said.
Michael DelGaldo, town attorney of Cicero, Ill., who is pursuing a complaint against MySpace over a fake profile of his town's president, echoed similar concerns. "The First Amendment doesn't protect all speech," he said.
In the case of the town president, DelGaldo said someone created a MySpace page that contained a picture of the town president taken off the town's Web site, making it look as if he had his own page. The page contained libelous and defamatory information.
"This was an absolute fraud," said DelGaldo. "And the information that was posted isn't deserving of First Amendment protection."
MySpace officials did not return calls for comment.
Facebook officials issued a statement defending their role in policing fraudulent activity, saying that "impersonating anyone or anything is prohibited.
Meanwhile, constitutional lawyers are defending free speech rights on the Internet.
"The First Amendment question is absolutely essential in cases involving speech," said Kim Watterson, a First Amendment and appeals lawyer in Reed Smith's Pittsburgh office who has won four cyberbullying lawsuits in recent years on behalf of students punished for online speech.
Watterson stressed that comments made on the Internet are no less worthy of constitutional protection than comments a student makes on a street corner. "The Internet doesn't change the analysis," Watterson said. "A statement is a statement is a statement."
Watterson is currently representing Justin Layshock, one of four Pennsylvania students who is being sued for defamation over a fake profile on MySpace about their principal. Trosch v. Layshock (Mercer Co., Pa., Ct. C.P.).