It started as the online equivalent of a crude locker room conversation -- a bunch of not-so-diplomatic people rating women at Yale Law School and making sexually explicit comments about them.
The sophomoric banter escalated into a federal defamation lawsuit filed last summer in New Haven, Conn., by two women against roughly 40 anonymous users of a message board on the Web site AutoAdmit.com. Also named in the original suit was a discussion group moderator, a former University of Pennsylvania student who this month countersued the women and their lawyers.
Observers say the matter could become a signature case pitting the right to anonymous free speech against the legal right to sue for defamation.
The lawsuit is about "bringing the right to protect yourself against offensive words and images into the 21st century," David N. Rosen, a New Haven-based lawyer who is part of the women's legal team, told the Wall Street Journal's Law Blog.
Rosen, who declined to comment for this story, has called the postings on the Web site "the scummiest kind of offensive tripe."
AutoAdmit.com bills itself as the "most prestigious law school discussion board in the world." The home page boasts of more than 7 million posts since 2004 and provides users with access to discussions about law school and bar admissions, standardized tests and financial aid. But, it seems, the discourse does not always stay at a high level.
According to the lawsuit, anonymous posters visited the board last summer, using pseudonyms such as "AK47", "Sleazy Z" and "hitlerhitlerhitler." They rated the appearance of women at top law schools and discussed the plaintiffs' alleged sexual escapades.
One of the female Yale students, referred to in court documents as Jane Doe I, was accused of having a lesbian relationship with a Yale administrator. Another poster said Jane Doe I had herpes and had raped Jane Doe II. The second woman's breasts were also frequently referred to on the site.
The 19-page complaint, written by Stanford law professor Mark Lemley, one of the plaintiffs' four pro bono lawyers, accuses the people posting comments of "Google-bombing," or manipulating search engine results so that anyone looking up Jane Doe II's real name would get a list of explicit message boards.
The complaint also said that one of the anonymous users of AutoAdmit.com sent an e-mail to Jane Doe II's prospective summer employer pointing out the online comments.
In addition to defamation, the lawsuit claims the defendants committed copyright infringement by posting photos of one of the women without permission. It also alleges that the two women have had their privacy invaded and "have suffered substantial psychological and economic injury."
In addition to actual damages, the suit is seeking $245,400 in punitive damages.
'ANXIETY AND INSOMNIA'
In sworn affidavits, the women say the stress caused their work to suffer at school and on the job. Both employers and classmates were aware of the salacious postings, they said. "As a result of the stress, anxiety, and insomnia that I suffered, I withdrew socially and often isolated myself from my friends at school," one woman stated in court documents. "My academic performance also deteriorated."
The woman ultimately took a leave of absence from Yale last term. Through a spokesman, Yale University Law School declined to comment for this article.
U.S. District Court Judge Christopher Droney has allowed the women to proceed anonymously in the case to prevent further possible harassment. Droney has also issued subpoenas to force Internet service providers to reveal the identities of the people who made comments on the site.
One of the defendants, referred to as AK47 in the original complaint, has filed a motion to quash the subpoena. His postings on AutoAdmit.com stated that one of the plaintiffs "should be raped." He also discussed the plaintiffs' family backgrounds and supposed sexual exploits.
In a 32-page brief, AK47 (who maintained his anonymity in his written motion) calls his comments "unsavory, but legally innocuous." He argues that his right to anonymous free speech outweighs the women's right to identify him and sue him for damages.
Rosen and the other plaintiffs' attorneys now have an opportunity to respond to AK47's motion before Judge Droney issues a decision. If AK47's motion to quash fails, the Internet service providers will be required to reveal the identities of the posters and the defamation suit can proceed.
'STRONG CLAIM'
Attorney Daniel J. Klau, a partner at Pepe & Hazard in Hartford and adjunct professor at the University of Connecticut School of Law, is following the case closely. His practice focuses on First Amendment and privacy issues and he teaches a course on right to privacy, which he said, also studies anonymous free speech.
"I think the Jane Doe women have made out a strong claim to convince the court it's a bona fide case they're bringing and would likely withstand motions to dismiss," Klau said.
Klau explained that courts have begun to force plaintiffs to prove they have a "meritorious claim" before granting subpoenas that would reveal the identities of anonymous Internet users.
He offered the example of a business that subpoenaed the identity of an anonymous employee who was bashing the company on the Internet. Once the identity was obtained, the company dropped the lawsuit and fired the employee. "The lawsuit was a ruse, just a bogus misuse of the process," Klau said.
Klau said the use of anonymous free speech dates back to the founding fathers who often published under pseudonyms. Still, he said, "a person doesn't have a constitutional right to use anonymity to defame someone else."
The latest twist is a countersuit by one of the original defendants, who has since been dropped from the plaintiffs' complaint. Anthony Ciolli, a 2007 University of Pennsylvania Law School grad, was a moderator for the AutoAdmit.com discussion board on which the anonymous comments were posted.
Ciolli claims he lost a $160,000 job offer from a Boston firm because of negative publicity about his role in the AutoAdmit case. His lawyer, Mark E. Jakubik, of Philadelphia, Pa., did not return calls seeking comment.
"I think he has a very, very uphill battle," said Klau, who stated that Ciolli must show that the women acted in bad faith in including him in their lawsuit. That, Klau said, would be difficult because Rosen, Lemley and two other lawyers from Lemley's firm of Keker & Van Nest LLP in San Francisco are "highly reputable attorneys."
Klau said Ciolli was probably dropped from the original lawsuit because it would have been difficult to win a defamation case against him. The federal Communications Decency Act holds that Web site creators should not be held liable for comments posted by others.
Klau said it would impose a tremendous burden on web sites if they had to edit all postings on message boards. He said they would likely shut down rather than risk lawsuits. And that, he said, would curtail free speech. "You don't want to create an environment where people are afraid of being sued," he said.
