Criticize Online, Get Fined

maxpublic writes "Yet another outspoken critic of corporate America has been SLAPP'ed - only this time, Dan Whatley didn't even know he'd been sued until he was presented with a $450,000 judgement. For those who don't know, SLAPP stands for 'Strategic Lawsuits Against Public Participation' and is used to silence people who openly criticize thin-skinned corporations." In this case the company doing to suing is Xybernaut, the makers of wearable computers mentioned here many times in the past. This article is a must read. And now Xybernaut has joined Amazon and others on my list of Must-Avoid companies. This is a creepy run around the 1st Ammendment, and you should be aware.

Comments

bullshit taco

[Anonymous Coward]

So this company is now on your list of "must avoid" companies? You mean, like the RIAA, MPAA and all the other products and companies you've encouraged everyone to avoid but then turn around and buy from and hand your cash to the instant they have something like an Akira DVD or an X-Box you want to buy?

someone's lying, but who?

[dirk]

I think it's pretty obvious someone is lying, but I wonder who it is. They claim he got a letter by registered mail, which means he had to sign for it. He claims he never got it. Seems like a simple thing to go back and check the receipt of the letter (if there was one) and see if he signed for it. I have a feeling he really did get the letter, since even the dumbest lawyer would be smart enough not to lie about something that easily checked in court, especially when you know the guy will challenge it when he gets the judgment (of course I could be wrong and the lawyer really is that dumb). I think finding out about the registered letter will clear up pretty much the whole case.

Re:someone's lying, but who?

[Jay L]

Does it even matter at all if he got the letter, if he lied about it or even if he told the truth about this company? It's very VERY clear he's telling his opinion and the moment people get fined for telling their opinion is the moment the US can be considerd on par with China and many other countries they can't stand. Emigrate while you can!

To sum up: Do the facts even matter? PANIC!

too many lawyers

[estes_grover]

* Lawyers as a group are no more dedicated to justice or public service than a private public utility is dedicated to giving light.
--David Melinkoff, Professor of Law, UCLA

Here We Go

[ScumBiker]

Yet another symptom of the corporatizing of America. If you have money, you win. Isn't this country "by the people, for the people"? Obviously, Xybernaut is a company losing money. Trying to "protect" your companies interests by suing potential customers is a *real* good way to piss off most of the rest. Personally, I will never, ever buy anything from this company. I will also never recommend it's products to anyone I know. Hey Newman (I'm sure you or one of your storm troopers, er, lawyers will be reading this). I have people asking me every single day about what tech items to buy. From corporate upper management to home owners. I'd say if your weren't percieved as being so incompetent, you wouldn't draw comments like the ones you sued Whatley over. Comments like this:

"If Steve Newman was not a relative his job would consist of ... 'Would you like fries with that?'"

heh. Now, you are a big item here and I'm sure a bunch of other forums and blogs. Good luck trying to sell anything at all.

Re:Here We Go

[Lictor]

This is going to be very unpopular (I can feel my karma approaching negative numbers)... but I think it has to be said.

>If you have money, you win.

This is true. You can stick your head in the sand and pretend its not, but the evidence is all around. O.J. Simpson anyone?

On the other hand, why are we surprised? We have *intentionally* built a capitalist society. Many Americans will *proudly* tell you that they are capitalists.

Capitalism works precisely because it starts on the base assumption that humans are greedy and selfish by nature (I'm not knocking Communism, which assumes humans are interested in 'helping their brother', but it has been less sucessful historically).

The most important thing in a capitalist society is... *gasp* CAPITAL! Of course the system favours people with lots of money and large tracts of land... this is by design. Money == Power. Period.

A side effect of this, of course, is that corporations (who have boatloads of capital) end up being far more powerful than individuals. Thats just the way it is.

I'm not saying this is a good thing (personally I find it frightening that big corps have so much power), but I'm not sure there is a lot that can be done about it at this point. You also can't argue that its been rather sucessful. Most Western nations are capitalist to one degree or another (like all things policital, its a spectrum, not an absolute) and the U.S. is one of the 'most capitalist' of the lot. Is it a coincidence that its also so powerful and affluent? (Yes, its an oversimplification, but I think the underlying point is valid).

Bottom line: we can't create a capitalist society and then turn around and pretend to be shocked when we see... a capitalist society.

First Amendment

[GMontag]

This is a creepy run around the 1st Ammendment, and you should be aware.

The First Amendment is a restriction on government, not on you, your neighbor or a business.

This was a civil judgement not a criminal conviction, the First Amendment does not apply AT ALL.

Re:First Amendment

[coyote-san]

Let's think this through....

If Congress can make no such law, the courts will not enforce such laws.

Rights can't be signed away. That's part of their definition. Therefore contracts can't place any restriction on a person's speech either.

Therefore you can't have NDAs, even when legitimate. You can't have trade secrets, even when legitimate. You can't have out-of-court settlements with a confidentiality clause.

Taken to an extreme, you can't even assert doctor-patient or lawyer-client privilege. If your doctor wants to make you the butt of a joke he can.

Maybe you're comfortable with this, but this is *far* from where the law is today.

Re:Criticize?

[Performer Guy]

1) It's not a fine, it's a judgement, the money goes to the plaintif.

2) If he had provided deep insight they might have had a real case against him, as the article indicates, simple troll is not actionable in many states. The other issue here is living in a state where the law protects you vs an action in another state where there is no statutory protection. Online flames aside there are individual protections to protect individuals against getting sued remotely like this.

3) As for the letter, it's too late, he'll have to hire a lawyer to even raise the issue, but now he has no opportunity for a pretrial dismissal, this will get really expensive. He has to appeal this. If he ignored the letter it was the dumbest thing he ever did.

This Judgment is Easily Undone

[Compulawyer]

Contrary to popular beilef, judges LOATHE default judgments. They would much rather have the parties settle or decide the case on its merits. As an attorney, I can tell you that convincing a judge to let you win by default because of the other side's procedural slip-up is one of the hardest arguments to make.

In this case, it is easy for the judge to allow the default because apparently Mr. Whatley never responded to the complaint. That is understandable because if he is correct, he never received notice. The whole lack of notice argument brings the whole realm of Due Process under the United States Constitution into play. Judges tend to be VERY sensitive to notice problems. Virtually every state's Rules of Civil Procedure have clear guidelines for how to handle these not-uncommon scenarios.

It should be relatively easy for Mr. Whatley to get this undone. Then the battle really begins.