(6.29.06 UPDATE: Case dismissed.)
Can you wish on an Internet site that someone meets "the end of a Magnum?" Or tell them, "I hope you die soon?" How about accuse them of "possible fraud" or ask if they've paid a local politician a bribe? What if you do it anonymously? Or under a made up name? What if your Web administrator writes this stuff?
A defamation lawsuit filed in Philadelphia Common Pleas Court asks these questions, and pits local publicist and man-about-town Anthony DiMeo III against Tucker Max, a New York writer and man-about-town, who uses his web site to chronicle long nights of drinking and debauchery. And apparently annoy DiMeo endlessly.
Call it the Blueberry Heir v the web's bad boy.
DiMeo, 30, is suing Max, also 30, saying Max's widely-read web site has libeled him repeatedly.
Max, a Duke Law school grad who is representing himself, says he's done nothing of the sort.
Max has gained some notoriety for his writing, landing his book "I Hope they Serve Beer in Hell," on the New York Times best seller list (No. 26) and finding himself in court for publishing a full-frontal account of his sex life with a former Miss Vermont. He won, and has posted the gory details about the case on his site as well.
He describes himself on his website as an #$%hole. His emails carry this blurb from the Times: "...highly entertaining and thoroughly reprehensible..."
Juicyness aside, the case has the potential to test the constitutionality of the recent change to the Communications Decency Act of 1934 that makes it illegal to "annoy" someone anonymously on the Internet.
For the past two years posters on TuckerMax.com have ridden DiMeo for the way he uses his own web site to promote his parties, his acting career, his Renamity pr firm, his being heir to a blueberry farm in South Jersey. DiMeo's suit, filed by attorney Matthew B. Weisberg, of Morton, Pa., asks for $150,000 in compensatory damages as well as punitive damages of another $1 million.
Tucker Max's comment section lit up after DiMeo made the news in January for his $100-per-head New Years Eve party at Le Jardin where attendees grew unruly after alcohol ran out, well before midnight. He has since sued the restaurant, and the restaurant has made a counter claim.
Commenters on TuckerMax.com rode DiMeo hard, Max acknowledges. Weisberg said the words hit him in his pocket. "One of his businesses is a pr firm," Weisberg said. "As you may know, he hosted a New Year's Eve party which made it into the papers as being riotous. The contract with an alcohol distributor didn't provide enough alcohol. If one of your businesses is pr, and it is solely a business based on reputation, and you are being accused of criminal conduct, or simply being harassed, why would I want to hire someone who himself has been portrayed poorly in the public?"
Weisberg also represents DiMeo in a libel suit against Philadelphia Weekly and columnist Jessica Pressler, who parodied one of his annual holiday greeting cards.
By contending that Max's site violated the new law that prohibits anonymous annoyances on the Web - the Violence Against Women and Department of Justice Reauthorization Act of 2005 - the comments also represent criminal behavior, the lawyer alleged. He added, "I am only interested in money. I don't care about Tucker Max going to jail. It's how can I compensate my client, and make sure (Max) does not do like things again."
Max, meanwhile, argues that nothing said on his web site is libelous. He says that he is not responsible for comments that posters made on his web site - even if they were defamatory. Lawyers for the Electronic Frontier Foundation and Ralph Nader's Public Citizen Litigation Group take the same position.
"I see this lawsuit as an attempt to intimidate and stifle free speech on the Internet," Max said. "Dude, I don't see myself as a hero or champion or crusader. I'm just a dude who writes funny stories on the Internet."
"It's hard to see much of a defamation claim in much of this stuff. Writing 'You are the biggest piece of #$% I have heard?' that's not defamatory. It may be nasty. That is opinion."
It is less clear, he said, whether it's defamatory to post that someone was guilty of possible fraud or of bribing a politician, but Max uttered neither of those comments, and so is not liable, Levy said. Levy called the annoyance law clearly unconstitutional - a view shared by the Electronic Frontier Foundation.
"If some of these comments were put on by an employee of Tucker Max, that seems to be a different question," he said.