September 10, 2002 4:56 PM PDT
Falwell parody site preaches free speech
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They said in legal papers filed on Monday that a federal district judge should dismiss Falwell's claims of trademark infringements and libel and throw out the case.
A central argument to the brief is that because the defendant in the case, Gary Cohn, lives in Illinois, he should not be sued in Virginia.
"It's important to protect the evolving, but pretty close to established, principle throughout the country that people who express their opinions on passive noncommercial Web sites can only be sued at home," said Paul Levy, an attorney for Cohn. "Otherwise, people who don't have profits against which to balance the risks of having to spend money on a lawyer would be chilled from speaking freely."
The brief also says Falwell's trademark claim should be dismissed because Cohn's site is noncommercial, and the libel charges are nonsense because "the statement that Falwell is a 'false prophet' is an opinion that cannot be proved true or false."
JerryFalwell.com and JerryFallwell.com, both created by Cohn, mock the Virginia preacher, likening his political views to those of Yassar Arafat, Saddam Hussein and Osama bin Laden.
Falwell's comments after the terrorist attacks last Sept. 11 drew public opprobrium and even a rebuke from the White House.
Last September, Falwell said on the "700 Club" show: "The abortionists have got to bear some burden for this because God will not be mocked. And when we destroy 40 million little innocent babies, we make God mad. I really believe that the pagans, and the abortionists, and the feminists, and the gays and the lesbians who are actively trying to make that an alternative lifestyle, the ACLU, People for the American Way--all of them who have tried to secularize America--I point the finger in their face and say, 'You helped this happen.'"
John Midlen, an attorney for Falwell, said he expected the case would not be dismissed. "The trademark claims are solid, and I don't know where they're getting their law from," Midlen said. "Many of the cases that they cited are irrelevant or they misinterpreted them."
"On the libel, they have a good time skewing what the plaintiff has alleged, and they make quite a bit about how whether Jerry Falwell is a false prophet is a matter of opinion," Midlen said. "That is not the plaintiff's libel contention at all. The plaintiff's libel contention is when the defendant equated Dr. Falwell as being the same as David Koresh. That's your libel."
Falwell first tried to use the Uniform Dispute Resolution Procedure, created by the Internet Corporation for Assigned Names and Numbers, to grab the pair of domain names from Cohn. In June, a panel of three arbitrators rejected Falwell's claim, saying the sites were "a legitimate noncommercial or fair use of the domain name." A few weeks later, Falwell filed a complaint in federal district court.
The ACLU of Virginia also is representing Cohn in the case, filed in the western district of Virginia. No trial date has been set.