Navy SEALS sue AP

BMT (RIP) · 12-28-2004, 17:36

http://www.editorandpublisher.com/ea..._id=1000742675

AL and RL whats you take on this suit??

BMT

**Roguish Lawyer** · 12-28-2004, 17:49

I am surprised to see MoFo taking a case like this. They usually do really liberal stuff like death penalty appeals. San Diego is a pretty conservative place, though. Could be a rogue office. LOL

I'll do some digging and see if I can give you some good info and analysis. The story doesn't really give enough information about the lawsuit to evaluate it. But the SEALs are represented by a big, national law firm. That's good for them, as long as they're not paying the bills! LOL

**Airbornelawyer** · 12-28-2004, 18:23

Quote:

Originally Posted by Roguish Lawyer

But the SEALs are represented by a big, national law firm. That's good for them, as long as they're not paying the bills! LOL

Their attorney, James W. Huston, is a retired Commander who served in Naval Aviation on active duty and as a naval intelligence officer in the Reserves.

12-28-2004, 18:38

weren't the photos taken off of an internet public site? How can you sue for what is already been shown by your family on a public domain?

doc t.

**Roguish Lawyer** · 12-28-2004, 19:15

Have not found the complaint yet, but here is the press release issued by the law firm.

http://www.mofo.com/news/pr.cfm?conc...ID=1406&Type=1

**Roguish Lawyer** · 12-28-2004, 19:20

It was just filed today, so it is not yet on the court's docket. I e-mailed the lawyer and asked for the complaint. If he doesn't send it, I'll get it from the court and post it for everyone.

**Roguish Lawyer** · 12-28-2004, 19:22

Quote:

Originally Posted by Doc T

weren't the photos taken off of an internet public site? How can you sue for what is already been shown by your family on a public domain?

doc t.

Well, that is a problem, but I suspect there is a factual question about how "public" that site is, and whether the person posting photos there had a "reasonable expectation of privacy." Many of those sites require passwords, for example.

There certainly are some claims that can be alleged here, but I think they may face an uphill battle because this arguably is a matter of public interest giving rise to a First Amendment defense. The SEALs will need some good lawyering, and it looks like they've got themselves a good lawyer.

**Roguish Lawyer** · 12-28-2004, 19:52

OK, he replied with a polite excuse for not sending me the complaint, but he did give me the case number so I can get it more easily from the Court. I should have it soon, but I'll be out tomorrow. Will post when I return.

He did let me know that they are handling the case pro bono (free).

CommoGeek · 12-29-2004, 07:31

I like the fact that their domain name is "mofo". That shows some moxie, I like that.

vsvo · 12-29-2004, 10:13

Here's an excerpt from Hettena's AP article, dated 12/4/04. He purchased reprints from the site where the pics were posted, before it was password protected, and also found some in Google's cache.

"The images were found through the online search engine Google. The same search today leads to the Smugmug.com Web page, which now prompts the user for a password. Nine scenes from the SEAL camp remain in Google's archived version of the page.

'I think it's fair to assume that it would be very hard for most consumers to know all the ways the search engines can discover Web pages,' said Smugmug spokesman Chris MacAskill.

Before the site was password protected, the AP purchased reprints for 29 cents each. "

AP article

**Roguish Lawyer** · 12-30-2004, 15:16

I have read the complaint. It is well-drafted. There are four causes of action alleged: (1) Invasion of Privacy; (2) Publication of Private Facts; (3) False Light; and (4) Intentional Infliction of Emotional Distress. I believe that all of the claims are adequately alleged, but may be subject to defenses appearing on the face of the complaint including a First Amendment defense.

Factually, the complaint alleges that the web site was not a commercial photo-sharing site, but rather a semi-private server that was thought to be secure against third-party intrusion. The case will turn primarily on whether there was a reasonable expectation of privacy and whether there is a First Amendment defense, IMO. The biggest problem the SEALs have is that they may be public figures and their conduct may be a matter of public interest within the core of First Amendment protection. On the other hand, the complaint focuses in large measure on the fact that the story could have been published without revealing their identities, and it is principally the disclosure of identities that is alleged to have caused harm.

Should be interesting. I will follow the docket and try to keep you guys posted if there is interest.

CommoGeek · 12-30-2004, 15:22

Quote:

Originally Posted by Roguish Lawyer

Should be interesting. I will follow the docket and try to keep you guys posted if there is interest.

There is here. Thank you for speaking in relatively small words. I actually understood a legal post on this board for once.

**Airbornelawyer** · 12-30-2004, 15:33

As I noted in my e-mail, I may be wrong, but I thought the First Amendment was an affirmative defense. Therefore, the defendants would have to raise it at trial.

If there is enough to the plaintiffs' claims to survive the defendants' motion to dismiss, and they have to wait for a public trial to make the First Amendment defense, they may seek to settle instead, in order to avoid bad publicity.

I really don't know this area of law very well, so I could be completely ate up on this.

**Roguish Lawyer** · 12-30-2004, 15:37

Quote:

Originally Posted by Airbornelawyer

As I noted in my e-mail, I may be wrong, but I thought the First Amendment was an affirmative defense. Therefore, the defendants would have to raise it at trial.

It is, but you can raise affirmative defenses at the pleading stage if they appear on the face of the complaint. I think the First Amendment defense arguably does here.

Also, don't forget there is summary judgment before trial.

Although I haven't researched it, I suspect that there are very significant constitutional issues of first impression here, so we could see pretrial appeals taken from decisions on early motions.

**Roguish Lawyer** · 12-30-2004, 15:48

Here is the complaint. Thanks to Martin for hosting it.

http://www.pmfp.net/fileupload/store/sealscomplaint.pdf