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Communiccions
Publication of the For
k on Communications Lawm
V American Bar Association
Volume 31, Number 1, Winter 2015
xx \.
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COVER STORY
Jackpot! Presumed
Damages Gone Wild-and
Unconstitutional ...................... 1
This article argues that presumed damages
violate fundamental notions of fairness
by chilling speech and punishing unpopu-
lar speakers who dare criticize government
officials and public figures, running afoul
of the First Amendment and the due pro-
cess clause of the Fourteenth Amendment.
Click Here to Accept the Terms
of Service ................................ 4
This article addresses the key features
of the most common types of online
agreements-clickwrap and browsewrap
agreements-the circumstances under
which courts have upheld such agree-
ments, and best practices for ensuring
the agreements are enforceable.
CDA No Bar to Failure to Warn
Actions Against Website
Operators ................................ 8
The Ninth Circuit Court of Appeals
recently carved out a dangerous exception
to CDA immunity that may be exploited
by plaintiffs who seek to shift liability to
website operators for injuries caused by
other website users.
Access to Cloud-Based Public
Records .................................. 12
This article examines the issues that digi-
tized government records pose for citizens
and journalists who wish to mine the bur-
geoning data repository to discover what
their government is up to.
Jurisdictional Issues in
Anonymous Speech Cases ...... 23
Courts have traditionally paid less atten-
tion to the jurisdictional issues relating to
the unmasking of anonymous speakers.
But two recent cases highlight the impor-
tance of jurisdictional considerations in
the protection of anonymous speech.
Jackpot! Presumed Damages
Gone Wild-and Unconstitutional
SUSAN E. SEAGER
L as Vegas casino billionaire
Steve Wynn recently hit a
judicial jackpot in Los Ange-
les with a $17 million jury
award for presumed damages in his
slander per se lawsuit against Joe Fran-
cis, the volatile creator of the Girls
Gone Wild video empire.
Never mind that Wynn presented no
evidence that anyone believed Francis's
absurd statement. Even the newsman
who reported the statement said he
didn't believe Francis, who blurted in
court that he heard that Wynn had
threatened to hit Francis in the back
of the head with a shovel and bury him
in a hole in the desert, due to Francis's
$2 million gambling debt. Wynn pre-
sented zero evidence to the jury of any
actual reputational or economic harm
to himself. Yet the judge instructed
jurors with the standard California
instruction for presumed damages
that Wynn was entitled to receive
compensation for this assumed harm
in whatever sum you believe is reason-
able.' The jury decided $17 million
was reasonable for presumed reputa-
tional damages, and awarded another
$3 million for mental anguish.2
In 2007, Illinois Supreme Court
Chief Justice Robert Thomas won a $5
Susan E. Seager is a vice president at Fox
Group Legal, a unit of Fox Entertainment
Group Inc located in Los Angeles, California.
This article is based on her own views, and
not a statement on behalf of her employer.
The author thanks UCLA Law School
student Celaena Powder and Steve P
Mandell of Mandell Mankes LLCfor
their valuable assistance.
million jury award for presumed dam-
ages in his libel per se lawsuit against
a small Chicago-area newspaper and
reporter. The Illinois jury handed out
the multimillion-dollar award despite
the lack of any independent evidence
of reputational or economic harm.
To the contrary, reputation witnesses
testified that Justice Thomas still
enjoy[ed] a good reputation, had been
honored by bar associations, and ele-
vated to chief justice of the Illinois
Supreme Court after the news report.3
Posttrial evidentiary challenges to
the two presumed damages awards met
with little or no success. The trial court
rejected Francis's challenge to the size
of the presumed damages award and
affirmed the entire $17 million award.4
Justice Thomas's presumed damages
award was reduced as excessive by
the trial court from $5 million to $3
million.5 No First Amendment or due
process challenges were made to the
presumed damages awards in either
case.6 In sum, these presumed damages
awards resemble casino jackpots more
than carefully weighed court awards
supported by hard evidence and sub-
ject to meaningful judicial review.
Presumed damages appear to be
gaining popularity with public figures
and public officials. In California, Wynn
filed another lawsuit for slander per se
in September 2014 against hedge fund
manager James Chanos.7 In Illinois, a
Chicago trial court judge expressly cited
Justice Thomas's big court win when the
trial judge demanded $7 million in his
2011 defamation per se lawsuit, saying
he was demanding the jury award won
by Justice Thomas (who was awarded
(Continued on page 30)
Published in Communications Lawyer, Volume 31, Number 1, Winter 2015. 0 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.](ViewImageLocal?handle=hein.journals/comlaw31&div=1&collection=&method=preview&ext=.png&size=3)
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