Playboy Sued Boing Boing—They Failed. But We All Suffer For It.

Playboy Entertainment recently filed a lawsuit that, had they won, would have opened the gates of First Amendment hell upon internet journalism. As a media organization, they were, of course, shooting themselves in their oversized feet. But more importantly, they would have paved the way for the destruction of all small, independent media orgs across the web.

What a drastic turnaround from a company that used to champion free speech as much as it did G-strings.

Pornographers — and those called such — have often pushed free speech boundaries. Works of literature labeled by readers, school boards, and courts as “obscene” include such precious works as Lady Chatterley’s Lover by D.H. Lawrence and The God of Small Things by Arundhati Roy. Alongside high-artists such as Mapplethorpe, however, stands Hef and Larry Flynt. We must give them their due, at least when it comes to fighting for free speech. For example, the 2000 Supreme Court case United States v. Playboy Entertainment Group loosened overly strict laws about adult television broadcasts.

Pornography (and its unprotected sibling, obscenity) has always been hard to define, as Supreme Court Justice Potter Stewart let us know in Jacobellis v. Ohio (1964), in which he provided the world with his famous line. Though Justice Stewart could not accurately define hard-core porn, he wrote, “I know it when I see it.” With such mushy legal standards, we should be grateful to Playboy and others for fighting the tightening of obscenity laws.

And although some might find those at the forefront of the First Amendment fight unsavory, you can’t deny that the rights they’ve established are ones that we rely on every day. Larry Flynt, the founder of Hustler, fought hard for the First Amendment right to publish parodies of public figures (see Hustler Magazine v. Falwell, the 1988 Supreme Court case). Without that holding, there would arguably be no “Shouts and Murmurs” in the far more respectable New Yorker.

The Playboy v. Happy Mutants Suit

Today, however, Playboy has found itself on the wrong side of the First Amendment fight. In an effort to regain control of a collection of scanned images of 477 centerfolds that somehow emerged on Imgur, Playboy sued the popular blog Boing Boing for merely linking to the collection.

A Boing Boing blog post went up back in February 2016, linking to the to the images and providing commentary on them. Here is the entirety of the post (sans links):

Some wonderful person uploaded scans of every Playboy Playmate centerfold to imgur. It’s an amazing collection, whether your interests are prurient or lofty. Kind of amazing to see how our standards of hotness, and the art of commercial erotic photography, have changed over time.

The most important thing to note about the Boing Boing post is that it made critical commentary about the collection: the collection itself is “amazing.” Furthermore, the point noted that it is “amazing to see how our standards…have changed over time.” The point is, the post provided commentary and analysis, such as it is. That commentary and analysis is important for First Amendment purposes.

Playboy then filed suit in November 2017. On January 18 of this year, Boing Boing’s parent company (Happy Mutants, LLC) filed a motion to dismiss the complaint. Eventually, all Playboy’s complaints were dismissed by the judge and Playboy walked away from the suit.

What Was At Stake

In its complaint, Playboy claimed that Boing Boing infringed the copyright of all 477 images because the blog post linked to the images. Playboy sought $150,000 in damages for each image. For those of you without a calculator, that is a total of $71.5 million. Or so.

Boing Boing has been around since 1988. I didn’t even know what the internet was in 1988. Whatever you think of Boing Boing, it is an institution that deserves First Amendment protection. Sure, compared to Playboy Entertainment Group, Inc., Boing Boing is small potatoes. But that doesn’t mean that the First Amendment doesn’t protect it. In fact, the First Amendment’s most important job is to protect the rights of even the smallest press entity against getting squashed by powerful entities who don’t like what they have to say.

In fact, this particular blog post is precisely the sort of thing the First Amendment protects. Remember how I pointed out the analysis and commentary it contained? As Techdirt wrote about this lawsuit, “Any sane and competent lawyer would recognize that this is Boing Boing reporting on and commenting on the existence of this collection [of Playboy centerfolds].” Fair use doctrine, a defense against copyright infringement, specifically allows for commenting and reporting.

As a sidebar, Techdirt is also facing a First Amendment lawsuit that threatens its very existence.

Fortunately, Boing Boing’s motion to dismiss made a compelling case against linking being infringement. In fact, their motion (they were represented by the Electronic Frontier Foundation) was far more compelling than Playboy’s complaint. And, to be honest, the Boing Boing motion was riddled with far fewer errors — what’s going on, Playboy lawyers? I know a freelancer who can proofread for you.

Playboy’s complaint made clear that they believed merely linking to third party content that is used without permission is grounds for an infringement lawsuit. Let’s look at the consequences of that argument: That means that every hyperlink I put in every article that I write puts me and the magazines I write for at risk.

Had Playboy won, I would suddenly have a duty to verify that all of the content at the end of every link in no way infringes on nothing at all. And that duty — that burden — is simply too high. Every independent magazine will fold. Every independent journalist will quit.

If Playboy had won, all that would have been left of journalism would have been the behemoths.

The Danger of SLAPP Suits

Even though the case was dismissed, Boing Boing still lost something. Because litigation is so expensive, Boing Boing suffered a lot. In a recent blog post announcing the ending of litigation, Boing Boing wrote: “Playboy damaged our business. This lawsuit cost our small team of journalists, artists and creators time and money that would otherwise have been focused on Boing Boing’s continued mission to share wonderful things.”

As Techdirt pointed out, Playboy’s suit looks an awful lot like a SLAPP suit, a Strategic Lawsuit Against Public Participation. In a SLAPP suit, the plaintiff may never really intends to win. Rather, the well-funded plaintiff’s intention is to chill the speech of the less-well-funded defendant by litigating them to death. Of course, the plaintiff may also hope to win, but either outcome is favorable.

Gawker, for example, is out of business because of a SLAPP suit. An internet billionaire backed Hulk Hogan in a massive lawsuit because he was angry at Gawker’s coverage of him — although in Gawker’s case, the plaintiff Hogan (to much surprise) actually won the case. Techdirt is also facing a SLAPP suit: “Whatever happens, Masnick [of Techdirt] says that legal defense costs could potentially end his business, regardless of the merits of the case.”

Anti-SLAPP statutes have been considered at the state level, but right now only California has one. The California statute allows for a special motion to dismiss prior to the very expensive discovery process. The defendant has a chance to show that the lawsuit is meant to suppress First Amendment rights through the plaintiff’s misuse of the courts. But California’s anti-SLAPP wouldn’t apply to a copyright claim because copyright claims are federal.

As Boing Boing’s motion to dismiss stated, “When a journalist links to a page on the web and comments on the way that page sheds light on artistic and cultural issues, the journalist should not fear copyright infringement liability — and should not fear the costs of protracted copyright litigation.” Both of these risks are too high for a free press to bear.

But we live in a moment when politicians have painted targets on the press and our polity has allowed it. And free market litigation with aims and outcomes unrelated to justice and equity put our First Amendment rights at risk.

Even if small media wins a lawsuit, it loses. And every time independent media faces a SLAPP suit, the rest of us face a chilling of speech.

New and effective interventions are needed: legislation, most likely. I’m not feeling hopeful at the moment, given the political climate towards journalists.

We’ll need an extra dose of bravery. And to support each other even more.

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Thank you to Jennifer Reitman at DAME Magazine for her support with this piece.

Learn more about Katie Rose Guest Pryal at katieroseguestpryal.com or support her by buying her books. Tip Katie to support her free writing at paypal.me/krgpryal.