Lumen Researcher Interview Series: Professor Eugene Volokh, UCLA Law School

In the fourth part of the Lumen Researcher Interview Series, we spoke with Professor Eugene Volokh, professor of law at UCLA law school, who specializes in First Amendment law.

Prof. Volokh’s research has used the Lumen Database to identify and investigate fraudulent or falsified court orders and ‘anti-libelous’ overbroad injunctions that were being used to remove legitimate content on the Internet. Most recently, his article about the abuse of Google’s de-indexing policy through forgeries and fraudulent court orders, titled ‘Shenanigans (Internet Takedown Edition)’, was published in the Utah Law Revie

In this interview, Adam Holland, Project Manager at the Lumen Project, Shreya Tewari, Lumen’s 2021 Research Fellow and Anna Callahan, one of Lumen’s 2021 summer interns, spoke with Prof. Volokh about his research and how the takedown notices in the database enabled his research.

Lumen Team: Could you please tell us your name, your position in your organization, and how long you have been there?

I'm Eugene Volokh, I'm a professor of law at UCLA law school and I've just begun my 28th year there. I specialize in First Amendment law and have for almost all my time there.

Lumen Team: Can you tell us what led you to conduct your research?

Sure. If I were to begin at the beginning, I would begin with Matthew Chan. Chan is a guy in Georgia and he had a website, interestingly, having to do with copyright takedown demands. The website is called extortionletterinfo.com because they thought of these demands as extortion letters. Linda Ellis was a poet who was sending out demand letters to people who had copied a poem of hers. She got a court order for Chan to take down every post that referred to her, regardless of whether they were libelous. Chan reached out to me, and I participated in the case. That was one of my first brushes with these kinds of over-broad injunctions.

A few years after the case ended, I got a call from Chan. He told me that after posting an honest but critical Yelp review of an Atlanta-based dentist, he received a notice from Yelp that his review was being taken down. The takedown was based on a court order that found his review to be libelous even though nobody had ever sued him. The lawsuit was against a ‘Mathew Chan’ from Baltimore, which spelled differently from his name (Matthew). Even though the dentist knew he was not in Maryland and had his address in his files.

I started looking into this and eventually enlisted the help of Paul Alan Levy, an attorney at the Public Citizen Litigation Group. He, I, and another person who'd been working with Paul discovered that the order concerning Chan, was fraudulently obtained. That there apparently was no “Mathew Chan” in Baltimore. Even the dentist claimed that he didn’t authorize the lawsuit. He said he had gotten in touch with a reputation management company that said they would make ‘it all go away’ and did so by filing a lawsuit on his behalf. So purportedly he was filing it himself against a defendant who didn't exist. They also sent in a response from the defendants stipulating a judgment. This led to the court rubber-stamping the order.

Ultimately, we found over two dozen such cases throughout the country, chiefly by looking at court records on sites like Bloomberg Law.That was my first peek into something I had never even thought about.

I started talking to people about how I could find more about this and they suggested I get in touch with the team at Lumen, which was called Chilling Effects then. I had heard of you folks before, but I'd never really used the database. So I started looking at the various orders that were in the database.

I remember seeing one from the Los Angeles Superior Court signed by, I think, Circuit Judge Pamela Brown. And my first reaction was, “there are no circuit judges in LA Superior Court!” There may be a Pamela Brown. It turns out there isn't. There are a lot of judges in LA Superior Court, but none of them is a circuit judge. And then I looked it up in the court files and there was nothing there.

There were other tell-tale signs that this wasn't just a fraudulent order, it was a forged one. I realized, "Wow, this is a goldmine." I ultimately found over 90 such orders and I've been researching in Lumen for almost five years now.

Lumen Team: Can you tell us a little about the work you’ve published as a result of your research with Lumen?

Well, the first was a Utah Law Review article called ‘Shenanigans’, which was an umbrella term for frauds and forgeries and other things. However, other orders that I found in the database went beyond that. They were, for example, things which, weren't fraudulently obtained, but it seemed pretty clear that they weren't really justified. For example, some orders purported to tell media entities what to do.

The second article I wrote was ‘Anti-Libel Injunctions’, which was published in the University of Pennsylvania Law Review a couple of years ago. It was about injunctions against libel and a lot of the data that I relied on there was from the Lumen database.

There's also an article that's forthcoming in the Harvard Journal of Law and Public Policy about overbroad injunctions. Some of the stuff is material that I run across in other contexts, but other such injunctions, almost 200 of them, are similar to the kind that I found in the old Chan and Ellis case, which basically, “take down everything about the plaintiff.” “You can't say anything about the plaintiff”, or “you can't say anything derogatory”, not defamatory, but derogatory, essentially anything negative about the plaintiff.

I also am working on a fourth article, which is called ‘Forgetting in the American Courtroom’. It is about how without any recognition of a formal right to be forgotten, which I think would be contrary to First Amendment law, many American courts are doing something similar through the back door. Sometimes issuing orders, ordering media entities to take stuff down. Sometimes sealing material when they shouldn't be sealing.So those are just four articles that are at various stages of progress.

Lumen Team: You mentioned noticing some “tell-tale signs” of falsified orders when looking through the database. Could you elaborate on what some of those signs were?

Sure, there are many. But one of them stems from the fact that lawyers, because of the needs of their jobs and their clients, use boilerplate. I found that the order in the Chan case had particular phrasings in it. For example, right above the signature line, it said: “dated, this 8th day of February 2016”. But it said “dated so respectfully”. Lawyers sometimes lay it on a little too thick in expressing how respectful they are of the court, but “so respectfully” is unusual, so I looked for that. And then I looked for other similar things.

For example, the order, in that case, was called Consent Motion for Injunction and Final Judgment. And when I searched for it, I saw some false positives. There were some perfectly legit cases that used that, but not a lot.

There are signs like that. Some of the forgeries also, there are tell-tale things like, they use the wrong title for a judge or in a couple of these cases, they use the name of a judge that turns out was dead or from a different jurisdiction.

Occasionally you see the case number is 123456789. They may well be real cases, but that's certainly something that should lead one to be a little sceptical. Having said that, in some of the cases there are no tell-tale signs.

Then of course there's also the possibility that I only got the dumb forgers and the dumb fraudsters. The smart ones did a really good job of covering it. Although I do think I spotted pretty much everything that was outright fake at least in a fake case. But some of the things were quite subtle. So, for example, there was a court order in a real case, on a real date. You pull up that order, it's a real order, but then if you look closely, what happens is they take an URL that the judge did say this should be de-indexed or this should be removed, and we encourage search engines to de-index it and they replaced it with some other URL. So, one would have to actually compare. And I have to confess, there are some courts, where it’s hard enough to get the records that all I did was I checked the docket. And for all I know, maybe, in fact, this substituting of URLs within an existing order might have gone past me.

Lumen Team: How has the scope of your research expanded since - are there any new avenues that you've considered exploring because of your research using Lumen?

Well, the anti-libel Injunctions article, I could have written in part because there has been a decent amount of litigation that appears on Westlaw and Lexis. But a lot of the orders that I cite there, I never would have found but through Lumen. Again, I think people realize that there is, or may be, this universe of stuff out there, but they just don't know how to get their hands on it.

As I mentioned, I had this article discussing 200-plus clearly unconstitutionally overbroad injunctions and that just shows that things are going on in trial courts that are not exactly what you'd expect. Not in every trial court by the way. Probably most judges do know the law and follow it, but there are enough judges out there, enough cases out there that [such] things slip through the cracks and there's a reality that is not faithfully mirrored on Westlaw and Lexis.

Lumen Team: If you had to go back and try to recreate your research and writing without access to Lumen, do you think an alternative approach exists? If so, would it be comparably effective?

The answer is for some things, it would be difficult, and for some, it would be impossible. So let's start with the latter, the forgeries. As I said, I could drive around to every courthouse in the country, but the whole point is those orders are not in any courthouse. That's what makes them forgeries. There are ways of potentially getting them. So, for example, I could get in touch with the recipients. I could call Google. I mean, this is in a sense, Lumen makes it easier to call Google, Google already delivers it. I try to get it to Twitter, WordPress, and such. And in fact, I've gotten in touch with some companies, and they've sent me a few things that were never submitted to Google for de-indexing. So, some of my 90 plus cases came from sources other than Lumen, but those were only very few.

There's a big difference between saying I found five and I found 95. Five would indicate that this stuff happens. 95, including some that were clearly forgery as a business model, shows that there's a real problem. A real problem that should affect our judgment, for example, about whether we should be quick to seal certain things, whether there should be these kinds of digital signature options. Whether we should legally bind third parties to go along with the court orders they get.

For example, looking back, going to court record systems is a valuable source of information. I've also started focusing more and more on Westlaw and Bloomberg, which are searchable in particular courts, or Court Listener, which is searchable, but only federal courts. But there are a lot of things you folks have in a way that is downloadable and scannable and therefore searchable that nobody else has. And that trying to reconstruct would be infeasible on other platforms.

Lumen Team: As a scholar in first amendment law, how important in your opinion is transparency through the sharing of these notices?

It is tremendously important because you can't study what you can't see. You can't evaluate what you can't see. You can't get a real understanding of what's going on out there without that kind of transparency.

There are costs to transparency and especially in my more recent work on pseudonymity and sealing and such, I understand why some people want certain things sealed and some of it may be quite legitimately. Sometimes people say they don't want an old case or the like to be instantly searchable on Google and I understand why people don't want some of this stuff out there. But if we are to have a real understanding of how the system actually operates, not how it's supposed to operate, not how the tiny, tiny fraction of cases that become published or publicly available opinions come out - but what actually happens on the ground, we need transparency for that.

Lumen Team: Any final thoughts?

Lumen is just this invaluable repository of trial-level injunctions on libel cases and other orders, not just injunctions, and has been an incredible source of information I otherwise never would have gotten. I mean, if you look at it from a selfish scholar's perspective, what are we always looking for? We're looking for something new.

And periodically, every couple of days, I go and look to see what the interesting new orders are and every so often I find cases that as I said, I litigate as well as things that contribute to my articles and it's been a tremendously fruitful, productive relationship for me.