Pro tip: If ever you Google yourself, and are unhappy with the results, don’t sue Google. Why not? Because under a federal law known as the Communications Decency Act, websites and/or services that only republish or display content created by third-parties — i.e. sites that don’t create their own substantive content — are not liable for the substance of that third-party content. It makes sense, right? The person/entity that should be liable is the one who is responsible for creating it. It almost follows the old adage — don’t shoot the messenger….
Apparently Colin O’Kroley never got that memo. After plugging his own name into the popular search engine, back in 2012, O’Kroley was shocked to see this as the top result in Google:
What had happened was that O’Kroley had been involved in a civil lawsuit in Texas, O’Kroley v. Pringle, and that case fortuitously wound up getting listed immediately after another case involving child-indecency on the Texas Advance Sheet, a service that aggregates and summarizes Texas judicial opinions. If users clicked the Google link they would have seen how the Texas Advance Sheet works and would have seen that the two cases had no relation. But if they did not click the link, and simply stared at the Google result, they would see only the name of O’Kroley’s case right after the description of the other case, separated by an ellipsis. Admittedly, it’s not the thing you want to see when you Google your own name, but there are better ways of dealing with it than filing a lawsuit in federal court alleging that Google caused you $19,200,000,000,000 in damages.
But there are more lessons we can learn from Mr. O’Kroley. For example, don’t represent yourself in federal court. Fred Gwynne was never a federal judge, and consequently, federal court is neither the time nor place to don your maroon tuxedo and get your Vincent Gambini on.
Why shouldn’t you represent yourself in federal court? Two reasons: The first one is that, as a practical matter, all of the federal courts use a somewhat buggy, if not temperamental electronic filing system called PACER (Public Access to Court Electronic Records). Although any yahoo with an Internet connection, email address, and a credit card can signup for a PACER account, to file (upload) documents you have to be not only a licensed attorney, but also admitted to practice before that individual court. Technically, you can file paper documents by delivering them to the clerk’s office, but it’s neither convenient nor favored by the courts. Not to mention, if you’re not a registered user assigned to the case, you won’t get the electronic notifications from the court every time something is filed. The second reason is both substantive and procedural—federal court rules are much more rigid than their state court counterparts. This translates to deadlines and other procedural requirements being strictly enforced. To navigate those rules, and understand and comply with the various deadlines and requirements, you need to have some substantive legal knowledge.
Substantive legal knowledge is also helpful if you don’t want to make an ass of yourself. For O’Kroley, it wasn’t bad enough that his appeal lacked any merit in the first place, so he added some extra arguments to his brief—arguments that no lawyer would even consider including in an appellate brief to any tribunal, let alone the Sixth Circuit U.S. Court of Appeals:
O’Kroley raises several other points on appeal, ranging from the meritless to the frivolous. On the meritless side: He “requests a court appointed attorney,” but he has not shown the “exceptional circumstances” needed to appoint one. On the frivolous side: He asks us to strike down the Communications Decency Act (“as a simple matter of logic”); he claims violations of the Eighteenth Amendment (the former prohibition on alcohol repealed long before the Internet came into being); he asks us to add Georgetown University as a defendant (because it might be using this case in its “Robots and Law” class); and he contends the judges below were “biased” against him (because “[t]hey may be ignorant about the English language”). To restate some claims is to reject them.
The best part about this case, however, is the opinion, which is written by The Honorable Jeffrey S. Sutton. Sure, he got it right, but that’s a judge’s job. Judge Sutton is one of the best legal writers of our time. He writes with incredible clarity, and crafts some of the most empathic judicial opinions of any jurist. While most appellate judges refer to the parties as “appellants” (which is akin to the plaintiff in any civil lawsuit) and “appellees,” Sutton refers to them by their actual names, so when you read the opinion you always know exactly who he’s talking about. Sutton writes using short, simple sentences, when appropriate, eschews legalese, and even in this relatively short, six-page opinion, uses headings and signals to keep the reader on track. But most importantly, he talks like a human being. This is perfectly demonstrated in the opinion’s closing paragraph, which although arguably superfluous (a.k.a. dicta), provides a good summary of how something that many see as an embarrassing failure for Mr. O’Kroley could actually be seen as an accomplishment on his part:
In most respects, O’Kroley didn’t accomplish much in suing Google and the other defendants. He didn’t win. He didn’t collect a dime. And the search result about “indecency with a child” remains publicly available. All is not lost, however. Since filing the case, Google users searching for “Colin O’Kroley” no longer see the objectionable search result at the top of the list. Now the top hits all involve this case (there is even a Wikipedia entry on it). So: Even assuming two premises of this lawsuit are true—that there are Internet users other than Colin O’Kroley searching “Colin O’Kroley” and that they look only at the Google previews rather than clicking on and exploring the links—it’s not likely that anyone will ever see the offending listing at the root of this lawsuit. Each age has its own form of self-help.