Without telling media, Arizona judge orders dozens of articles to be deleted

In 2013, Megan Welter had a really bad night.

Welter, at that time a cheerleader for the Arizona Cardinals, got into a drunken fight with her boyfriend. It ended with her calling 911 and reporting him for domestic violence. Welter’s boyfriend was a professional fighter, who “smashed [her] head into the tile” and put her in a “choke hold with his legs,” she told the 911 dispatcher.

When the police showed up, they found out that wasn’t true. Welter’s boyfriend, Ryan McMahon, showed video on his cell phone verifying that it was Welter who had attacked him. She was arrested and charged with assault.

The arrest came just days after Welter and her team, the Cardinals, kicked off a PR blitz pushing a positive story about her to various television and print news outlets. Welter wasn’t just a pretty face—she was an Iraq war veteran who led troops in a signal unit of the US Army.

Local Arizona TV stations, Sports Illustrated, and culture blogs like Uproxx all ran feel-good stories touting Welter as an all-American character.

The Cardinals produced a promotional video all about Welter that ran on NFL.com.

Days later, learning of her arrest, many of the same news outlets ran decidedly less positive coverage. “So much for Wednesday’s Hot Clicks feel-good story of the day,” wrote a Sports Illustrated blogger. ABC’s Good Morning America ran a report featuring cell-phone video of Welter attacking her boyfriend, as well as footage from body cameras worn by officers of the Scottsdale Police Department.

With their heavily promoted rookie cheerleader now facing a court appearance, the Cardinals had no comment. McMahon, meanwhile, was sympathetic. “I hope this doesn’t take away from the good things she’s done for the NFL and her country,” he told journalists.

Reputation Fixers

Last year, Welter sought to change her unflattering history. She turned to the firm of Kelly/Warner Internet Law, who promote their attorneys’ abilities to be “Online Reputation Fixers.”

Welter’s lawsuit (PDF) didn’t include a named defendant. Instead, she accused “John and Jane Does 1-10, ABC Partnerships 1-10, XYZ Corporations 1-10, and DEF Limited Liability Companies 1-10” of defaming her online.

“Defendants posted voluminous false, damaging, misleading, and defamatory statements about Plaintiff on the Internet, located at numerous web links,” wrote Welter’s attorney, Raees Mohamed.

The complaint included an exhibit (PDF) with 98 links to different Internet articles, ranging from nationally known news outlets to little-known sports and culture blogs. Also included were nine links to YouTube videos about Welter.

Shortly thereafter, Welter’s attorney filed a proposed injunction, signed by his client as well as ex-boyfriend Ryan McMahon—apparently one of the anonymous defendants in Welter’s lawsuit.

According to the order, McMahon would “immediately remove from all websites, search engines, forums, blogs, lists, social media sites, and/or other forums of mass communication” any “negative statements” about Welter, including the 98 links in her exhibit. He also agreed to request removal of the URLs from search engines including Google, Yahoo, and Bing.

Meanwhile, the actual publishers of that information—the blogs and news outlets hosting the articles in question—hadn’t ever been served with Welter’s lawsuit or been notified that they had been sued.

Despite that lack of notice, Welter’s attorney was able to get their “stipulated order” signed by Maricopa County Superior Court Judge Patricia Starr.

There’s no evidence anything was done with the order or that any takedowns actually took place. Nonetheless, Judge Starr’s order was brought to the attention of Paul Levy, an attorney for Public Citizen who has made “fake defamation litigation,” which seeks to delete information from the Internet, one of his free-speech causes.

Last week, Levy filed a motion to quash on behalf of Avvo, a legal information site that hosted one of the 98 articles. The motion outlines numerous problems with the order. Not only were the publishers never given notice—a serious violation of due process and the First Amendment—but Welter had been allowed to bring a defamation claim well after the statute of limitations expired. On top of that, Welter presented zero evidence there was anything untrue about the articles, much less evidence that meets the high standard of “actual malice” that would be required to win a defamation claim.

“We count on our trial judges to stand up for absent parties and especially for the First Amendment,” wrote Levy in a blog post about his motion. “Kelly/Warner’s procedural shenanigans deserve special condemnation. But in the final analysis some of these problems were so obvious that Judge Starr should have caught them.”

In an interview with Ars, Levy said that he wants to dissuade people from hiring unscrupulous reputation management services or law firms like Kelly/Warner, which “promise easy fixes to reputation cleanup.”

“We know of other cases where this sort of thing is being done,” he said. “Eugene Volokh has identified some of them in his blog posts. We want to nip them in the bud, and we want to set examples.”

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