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A pair of disgruntled workers who use Internet Web sites and chat rooms to lambaste, criticize and, according to a jury in Santa Clara County, Calif., libel their former company now face being forced to trade their keyboards in for orange jumpsuits. Attorneys for Varian Medical Systems and Varian Inc. — who in December won $775,000 in damages and a permanent injunction barring specific libelous comments from their critics — will now try to persuade the judge that jail time is needed to silence two fired employees. But attorneys for defendants Michelangelo Delfino and Mary Day say jail time would be unprecedented, arguing the injunction suffers from a clear case of prior restraint and that the Internet libel trial was peppered with errors including insufficient evidence, improper jury instructions and judicial misconduct. The two-month Internet libel dispute — believed to be one of the first in the country to go to trial — has attracted much fanfare because dozens of Silicon Valley companies have gone after anonymous Internet posters in court. The defendants’ flamboyant behavior — writing daily, often scathing reports of the trial and disparaging the attorneys, plaintiffs and even the trial judge — has also drawn an audience. “The only thing that would have been better in this case is if it involved an elephant and a vicious dog,” said Palo Alto, Calif., solo practitioner Glynn Falcon Jr., who represents Delfino. Attorneys say that while the Internet libel trial, and Day and Delfino’s name-calling, trash-talking Web site sparked public interest, the post-trial motions and appeals could further refocus First Amendment law as it applies to the Internet. Each side has brought in their own appellate specialists. Varian has brought in Palo Alto solo Gerald Marer to assist its lawyers at Orrick, Herrington & Sutcliffe, while the two defendants have retained Jon Eisenberg, a partner in the Oakland, Calif., office of Encino’s Horvitz & Levy. Marer could not be reached for comment. Among the issues likely to be raised are whether Internet speech is libel or slander; whether a judge can visit the “scene of the crime” on the Web; and what constitutes fair comment versus defamation in often anonymous electronic forums. But the biggest issue on appeal is likely to be whether the injunction meets the standards set out by the California Supreme Court three years ago in Aguilar v. Avis Rent-A-Car, 21 Cal.4th 121. A plurality of the justices in that case approved an injunction aimed at an employee after he’d been found to have verbally abused Latino co-workers. But that involved a workplace, not a public forum on the Internet. In the Varian case, the injunction issued by Santa Clara County Judge Jack Komar bars references to sexual acts and references to certain managers’ personal lives, as well as statements about the companies that the jury determined were false and defamatory. Ultimately, the outcome in Varian could help companies determine the value — and costs — of ratting out and exposing critics who use the Internet as their soapbox. Eisenberg says that if the trial judge initiates contempt proceedings against his clients, he’ll be ready with a habeas writ. “This is an imminent threat of jail time,” said Eisenberg, an appellate specialist. “My clients have chosen to disregard what they believe to be an unconstitutional prior restraint on speech. The First Amendment precludes prior restraint on speech. You can be sued for defamation and required to pay damages but no court can tell you that you may no longer speak with the exception of the Aguilar workplace harassment case, which isn’t involved here.” Today, attorneys for Varian will ask Komar to initiate contempt hearings because Day and Delfino continue to post messages forbidden under the injunction and haven’t removed older ones. Matthew Poppe, an associate at Orrick, Herrington & Sutcliffe, said Varian has submitted papers listing 30 new Internet postings that ignore the injunction. Poppe said Day and Delfino also have failed to remove libelous statements. Day and Delfino’s attorneys will ask for a new trial and try to stave off contempt proceedings by presenting a bouquet of arguments, including that the libel judgment was wrong because, under California law, Internet defamation is slander, not libel. Eisenberg said this is a crucial distinction because under California law, special damages, including emotional distress, cannot be awarded for slander. “This case was tried on the theory of libel. I don’t think it’s libel. If anything, it’s slander,” said Eisenberg. Under California law, slander includes television, radio and anything published by mechanical means, which should include the Internet, said Eisenberg, who is working with Falcon on post-trial motions. “The Internet is today’s dominant public forum, and as such should be afforded the greatest protection — in this case, by applying the law of slander, not libel,” according to papers submitted by Falcon. Varian’s attorney disputes the claim. “The general rule is that if it’s in writing rather than a verbal statement, it’s libel,” Poppe said. Day’s attorney Randall Widmann also argues for a new trial, charging that it was improper for Komar to view the defendant’s Web sites and company message boards. Widmann says he’s tracked hits on Day and Delfino’s site back to the judge’s chambers, and he claims Komar has mentioned viewing materials outside the record during conferences in chambers. Eisenberg compared it to a judge viewing a crime scene. Poppe responded in court papers that Day and Delfino waived any objection “by failing to move for a mistrial when the alleged misconduct was disclosed.” He also said there’s no evidence Komar’s Web surfing influenced the outcome. The defendants’ lawyers say the judge also erred when he refused to instruct the jury to pinpoint specific libelous statements. Day and Delfino boast that they have posted more than 14,000 messages on the Internet, thousands of which were introduced during the trial. “What the jury was given was, ‘Take everything and see if anything looks libelous and we’ll help you out. Anything about sex is libelous. Anything about their mental state,’” Falcon said. “We don’t know if [the verdict] was based on one statement, 12 statements or 15,000 statements. When you’re talking about speech, what it means is it chills because the client does not know what is or is not defamation.” And the antagonistic Internet exchanges that now seem a sideshow to the court case continue, with anonymous posters on both sides lobbing low insults. Day and Delfino refer to Lynne Hermle, an Orrick partner representing Varian, as the “grand dame of SLAPP.” They call her associate Poppe “poop.” They refer to plaintiffs and Varian managers Susan Felch as a “scary yenta bitch” and George Zdasiuk as a “fascist SLAPP terrorist.” Day and Delfino’s site also attacks Komar as a “fascist.” Varian’s supporters have gotten into the act, too, with anonymous posters taking shots at Delfino, Day and their lawyers. Soon after he associated into the case earlier this month, Eisenberg was tarred as a “sucker” and “dumb.” Posters refer to Horvitz & Levy associate Jeremy Rosen as “slave butt boy.” Some posters have even expressed delight at the idea Delfino will suffer a sexual assaultif imprisoned. Eisenberg said he’ll avoid that kind of rhetoric during the appeal. “In a public forum we all have to expect a little fervor on occasion. In the resolution of legal disputes in the courts, I would like to see a little more dispassion and a little less screaming,” Eisenberg said.

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