A Salacious Tale of Two Sites and a Lawsuit

On July 18, however, in what appears to be a fundamental shift in legal strategy, Johnson voluntarily dismissed her complaint, but without prejudice. Her attorney indicated that she would soon be continuing her legal battle with Max, possibly in concert with other celebrities aggrieved by information posted on the Internet.

What transformed this unsavory he said/she said case into a cause celebre is that in addition to claiming damages, Johnson sought far-reaching and immediate injunctive relief, which the Florida court immediately granted.

Lewis' temporary injunction constituted not only a prior restraint of Max's speech activities, but one of remarkable breadth. This, combined, no doubt, with the salaciousness of the underlying facts, prompted a flurry of worldwide media attention, including articles in the New York Times and the Associated Press.

In addition to the issue of prior restraint, the case presented several timely questions at the intersection of the First Amendment and the Internet. For example: Is it ever appropriate to enjoin publication of a hyperlink, which is, after all, merely a listing of an Internet address? Whether, and how, any court ultimately addresses those issues in the event of further litigation is, of course, up to the court, which may address the substantive issues head-on or resolve the case on other, possibly jurisdictional, grounds.

A visitor to Katy Johnson's Internet address encounters a brightly colored, cartoonish Web site devoted to Johnson's many personas, which include being a “YMCA Advocate for Values.” Johnson is also the creator of a cartoon feature for girls called the “Starrlettes,” which promotes, among other things, sexual abstinence and temperance. The Starrlettes, a group of six stylishly attired, Barbie-type figured girls, are featured prominently on the site, often imparting their morality lessons through brief rhymes. For example, one Starrlette, attired in a white wedding dress, admonishes that, “[i]t shows maturity to keep your purity.”

The only discord within this otherwise harmonious virtual world appears in several Starrlette rhymes that seem to refer to Johnson's dispute with Max. For example, one Starrlette complains to a cartoon cow that, “[a] guy is saying things about me which just aren't true. Please will you tell me what I should do?” The cow replies, “Make him stop and be empowered …. Don't sit back and be a COWARD.” Regardless of whether this invitation to litigate refers to Johnson's suit, it is safe to say that, in this area at least, Johnson followed her own advice.

A visitor to Tucker Max's Internet address encounters darkness, both visual and spiritual. The predominant color of the Web site is gray, followed by black. The predominant theme is proclaimed in the title of Max's first book, which is promoted on the Web site: “Belligerence and Debauchery: The Tucker Max Stories.” The theme is continued in Max's second publication: “The Definitive Book of Pick-Up Lines.” Indeed, Max's entire Web site is dedicated to the exhibition, explanation and discussion of his lifestyle, which apparently involves becoming very intoxicated, verbally abusing everyone within earshot, convincing women to have sex with him and then writing detailed descriptions of it all.

While operating such a Web site might seem inimical to making friends and influencing people, Max apparently has thousands of fans, if the number of registered visitors to his Web site message board is any indicator. Many, perhaps most, of those who post messages seem to share Max's values.

Of course, Max also has his detractors, but even some of his critics acknowledge that Max is bright and articulate. He claims to be a graduate of both the University of Chicago and Duke Law School. All of which presents the obvious question: Why isn't he putting his intelligence and writing ability to work in the practice of law? Max offers an explanation in one of his stories:

“Almost immediately upon arriving at Fenwick, I realized that I HATED being a lawyer…. Honestly, I wish I could say it was the firm, I wish I could blame the people or the place, but that was not the case. It wasn't the firm that I hated; it was the very nature of the job.”

In many of his stories, Max, understandably, uses pseudonyms. A significant exception to the use of pseudonyms occurs in what Max calls, “The Miss Vermont Story,” in which he identifies Johnson by name. As Max explains: “I normally don't like writing about the specific details of relationships or hook-ups for many reasons, but this is an exception. After putting up the giant hypocrisy that is her Web page, she has to be ready for what I write.”

The Temporary Injunction

Apparently, Johnson was quite ready for Max. The timing of her lawsuit, as well as the urgency of her request for injunctive relief, was also affected by Max's scheduled appearance on the “reality” television program “MTV Sex2K” in early May.

After Johnson obtained her injunction, Max removed “The Miss Vermont Story” from his Web site, along with specific references to Johnson and links to her Web site. He did not, however, remain silent. Instead, he set up a legal defense fund and solicited contributions over the Internet, vowing to fight the “ridiculous lawsuit against me.” According to Max, “[t]his is not about me or even my site, it's about free speech and whorish hypocrisy.”

While Max apparently complied with the letter of the temporary injunction, his supporters in cyberspace did everything in their power to subvert it. Other “mirror” Web sites quickly posted copies of “The Miss Vermont Story,” copies that were easily locatable through use of Internet search engines. The easy and widespread availability of the story may explain why, on June 5, Johnson, after having originally sought a gag order in the case, authorized a detailed press release:

“According to Ms. Johnson, Tucker Max exploited her image and published scurrilous lies about her on his Web site just to sell t-shirts and other merchandise. Last month, a Florida judge ordered a temporary injunction against Max forcing him to take down all references to 'Katy Johnson' and 'Miss Vermont' on his Web site. [Johnson stated,] 'I feel vindicated by the judge's decision, and I hope this suit will put an end to the ugly untruths he parades on this reprehensible Web site.'” See www.transmediagroup.com/newsroom/2003/605FormerMissVermont.htm.

Curiously, Johnson's public statement denied the truth of Max's story while her legal claims did not. In Count I of her complaint, Johnson alleged that Max has engaged in unauthorized use of her name and likeness. However, such a claim does not include the element of falsehood. In Count II, Johnson alleged that Max “has, and continues to publicly disseminate private facts of and concerning Plaintiff without her consent.” This allegation, premised upon dissemination of “facts,” and which, again, did not deny the truth of Max's story, seems directly to contradict Johnson's public statement. Also curious is the absence from the complaint of any claim of defamation, which is what Johnson's public statement seems to allege.

Johnson's public claim of vindication was also premature. On June 6, Max filed a notice of removal to the U.S. District Court for the Southern District of Florida, West Palm Beach Division. No. 03-80515-CIV. Then Max filed, in rapid succession, a motion to dismiss on June 13, and an emergency motion to dissolve the temporary injunction on June 17. Also on June 17, the Florida branch of the American Civil Liberties Union filed an amicus curiae brief in support of Max's motion to dismiss the temporary injunction.

On June 23, Max went a step further and served notice that the temporary injunction had automatically expired pursuant to the 10-day deadline of Fed. R. Civ. P. 65[b]. Shortly after that, Max again posted “The Miss Vermont Story,” complete with links to Johnson's site.

After some additional legal skirmishing, Johnson voluntarily dismissed her suit, without prejudice, on July 18. Through her attorney, she has indicated her intention to adopt a new legal strategy, possibly including a claim for defamation. See www.heraldtribune.com/apps/pbcs.dll/article?AID=/20030721/APN/307211057. Max has also indicated his intention to continue the fight. On his site, he lambastes Johnson for publicly calling him a liar and tells his fans, “Stay tuned. This is not over.”

Regardless of its ultimate disposition, this dispute offers at least one timely lesson for Internet practitioners: Prior restraint doesn't work in cyberspace. Quite apart from the constitutional infirmities, prior restraint simply prompts additional commentary and posting of disputed information by third parties, which, on the Internet, number in the millions. Indeed, whether injunctive relief precedes or follows litigation, it is ultimately ineffective on the Internet. Successful plaintiffs aggrieved by postings on Web sites, discussion boards or e-mail messages will have to content themselves with damages and public vindication, because once information is out there in cyberspace, it is out there forever.

Katy Johnson is a former Miss Vermont who operates a Web site on which she champions moral values such as abstinence from casual sex and alcohol consumption (www.katyjohnson.com). Tucker Max is a former law student who operates a Web site on which he champions competing values, such as frequent indulgence in casual sex and excessive alcohol consumption (www.tuckermax.com). In the summer of 2001, Johnson and Max made brief physical contact in Boca Raton, FL.

This is essentially all that the two parties agree upon. Johnson claims that the physical contact constituted common law battery by Max. Max claims that the contact was not only voluntary, but also voluntarily intimate, and that this allegedly intimate contact was only the starting point of a passionate affair.

Indeed, Max chronicled his version of the alleged relationship, in great and uncomplimentary detail, on his Web site. In response, in early May, Johnson retained counsel and sued Max in the 15th Judicial Circuit Court in Palm Beach County, FL. Johnson v. Max, No. 2003 CA 004867AF. Johnson alleged that Max engaged in the unauthorized use of her name and likeness, in violation of Fla. Stat. ch. 540.08; committed a common law invasion of Johnson's privacy; and committed common law battery.

On July 18, however, in what appears to be a fundamental shift in legal strategy, Johnson voluntarily dismissed her complaint, but without prejudice. Her attorney indicated that she would soon be continuing her legal battle with Max, possibly in concert with other celebrities aggrieved by information posted on the Internet.

What transformed this unsavory he said/she said case into a cause celebre is that in addition to claiming damages, Johnson sought far-reaching and immediate injunctive relief, which the Florida court immediately granted.

Lewis' temporary injunction constituted not only a prior restraint of Max's speech activities, but one of remarkable breadth. This, combined, no doubt, with the salaciousness of the underlying facts, prompted a flurry of worldwide media attention, including articles in the New York Times and the Associated Press.

In addition to the issue of prior restraint, the case presented several timely questions at the intersection of the First Amendment and the Internet. For example: Is it ever appropriate to enjoin publication of a hyperlink, which is, after all, merely a listing of an Internet address? Whether, and how, any court ultimately addresses those issues in the event of further litigation is, of course, up to the court, which may address the substantive issues head-on or resolve the case on other, possibly jurisdictional, grounds.

A visitor to Katy Johnson's Internet address encounters a brightly colored, cartoonish Web site devoted to Johnson's many personas, which include being a “YMCA Advocate for Values.” Johnson is also the creator of a cartoon feature for girls called the “Starrlettes,” which promotes, among other things, sexual abstinence and temperance. The Starrlettes, a group of six stylishly attired, Barbie-type figured girls, are featured prominently on the site, often imparting their morality lessons through brief rhymes. For example, one Starrlette, attired in a white wedding dress, admonishes that, “[i]t shows maturity to keep your purity.”

The only discord within this otherwise harmonious virtual world appears in several Starrlette rhymes that seem to refer to Johnson's dispute with Max. For example, one Starrlette complains to a cartoon cow that, “[a] guy is saying things about me which just aren't true. Please will you tell me what I should do?” The cow replies, “Make him stop and be empowered …. Don't sit back and be a COWARD.” Regardless of whether this invitation to litigate refers to Johnson's suit, it is safe to say that, in this area at least, Johnson followed her own advice.

A visitor to Tucker Max's Internet address encounters darkness, both visual and spiritual. The predominant color of the Web site is gray, followed by black. The predominant theme is proclaimed in the title of Max's first book, which is promoted on the Web site: “Belligerence and Debauchery: The Tucker Max Stories.” The theme is continued in Max's second publication: “The Definitive Book of Pick-Up Lines.” Indeed, Max's entire Web site is dedicated to the exhibition, explanation and discussion of his lifestyle, which apparently involves becoming very intoxicated, verbally abusing everyone within earshot, convincing women to have sex with him and then writing detailed descriptions of it all.

While operating such a Web site might seem inimical to making friends and influencing people, Max apparently has thousands of fans, if the number of registered visitors to his Web site message board is any indicator. Many, perhaps most, of those who post messages seem to share Max's values.

Of course, Max also has his detractors, but even some of his critics acknowledge that Max is bright and articulate. He claims to be a graduate of both the University of Chicago and Duke Law School. All of which presents the obvious question: Why isn't he putting his intelligence and writing ability to work in the practice of law? Max offers an explanation in one of his stories:

“Almost immediately upon arriving at Fenwick, I realized that I HATED being a lawyer…. Honestly, I wish I could say it was the firm, I wish I could blame the people or the place, but that was not the case. It wasn't the firm that I hated; it was the very nature of the job.”

In many of his stories, Max, understandably, uses pseudonyms. A significant exception to the use of pseudonyms occurs in what Max calls, “The Miss Vermont Story,” in which he identifies Johnson by name. As Max explains: “I normally don't like writing about the specific details of relationships or hook-ups for many reasons, but this is an exception. After putting up the giant hypocrisy that is her Web page, she has to be ready for what I write.”

The Temporary Injunction

Apparently, Johnson was quite ready for Max. The timing of her lawsuit, as well as the urgency of her request for injunctive relief, was also affected by Max's scheduled appearance on the “reality” television program “MTV Sex2K” in early May.

After Johnson obtained her injunction, Max removed “The Miss Vermont Story” from his Web site, along with specific references to Johnson and links to her Web site. He did not, however, remain silent. Instead, he set up a legal defense fund and solicited contributions over the Internet, vowing to fight the “ridiculous lawsuit against me.” According to Max, “[t]his is not about me or even my site, it's about free speech and whorish hypocrisy.”

While Max apparently complied with the letter of the temporary injunction, his supporters in cyberspace did everything in their power to subvert it. Other “mirror” Web sites quickly posted copies of “The Miss Vermont Story,” copies that were easily locatable through use of Internet search engines. The easy and widespread availability of the story may explain why, on June 5, Johnson, after having originally sought a gag order in the case, authorized a detailed press release:

“According to Ms. Johnson, Tucker Max exploited her image and published scurrilous lies about her on his Web site just to sell t-shirts and other merchandise. Last month, a Florida judge ordered a temporary injunction against Max forcing him to take down all references to 'Katy Johnson' and 'Miss Vermont' on his Web site. [Johnson stated,] 'I feel vindicated by the judge's decision, and I hope this suit will put an end to the ugly untruths he parades on this reprehensible Web site.'” See www.transmediagroup.com/newsroom/2003/605FormerMissVermont.htm.

Curiously, Johnson's public statement denied the truth of Max's story while her legal claims did not. In Count I of her complaint, Johnson alleged that Max has engaged in unauthorized use of her name and likeness. However, such a claim does not include the element of falsehood. In Count II, Johnson alleged that Max “has, and continues to publicly disseminate private facts of and concerning Plaintiff without her consent.” This allegation, premised upon dissemination of “facts,” and which, again, did not deny the truth of Max's story, seems directly to contradict Johnson's public statement. Also curious is the absence from the complaint of any claim of defamation, which is what Johnson's public statement seems to allege.

Johnson's public claim of vindication was also premature. On June 6, Max filed a notice of removal to the U.S. District Court for the Southern District of Florida, West Palm Beach Division. No. 03-80515-CIV. Then Max filed, in rapid succession, a motion to dismiss on June 13, and an emergency motion to dissolve the temporary injunction on June 17. Also on June 17, the Florida branch of the American Civil Liberties Union filed an amicus curiae brief in support of Max's motion to dismiss the temporary injunction.

On June 23, Max went a step further and served notice that the temporary injunction had automatically expired pursuant to the 10-day deadline of Fed. R. Civ. P. 65[b]. Shortly after that, Max again posted “The Miss Vermont Story,” complete with links to Johnson's site.

After some additional legal skirmishing, Johnson voluntarily dismissed her suit, without prejudice, on July 18. Through her attorney, she has indicated her intention to adopt a new legal strategy, possibly including a claim for defamation. See www.heraldtribune.com/apps/pbcs.dll/article?AID=/20030721/APN/307211057. Max has also indicated his intention to continue the fight. On his site, he lambastes Johnson for publicly calling him a liar and tells his fans, “Stay tuned. This is not over.”

Regardless of its ultimate disposition, this dispute offers at least one timely lesson for Internet practitioners: Prior restraint doesn't work in cyberspace. Quite apart from the constitutional infirmities, prior restraint simply prompts additional commentary and posting of disputed information by third parties, which, on the Internet, number in the millions. Indeed, whether injunctive relief precedes or follows litigation, it is ultimately ineffective on the Internet. Successful plaintiffs aggrieved by postings on Web sites, discussion boards or e-mail messages will have to content themselves with damages and public vindication, because once information is out there in cyberspace, it is out there forever.