Our First "Official" Complaint

[180IQ]

I received a message today from "General Counsel" at our web hosting company. In the message was a copy of the following complaint:


Dear Sir/Madam,

I would like to advise you about a very serious situation with a domain,
NewAgeFraud.org, and specifically with the registrar of the site, Mr. Al
Carroll. Mr. Carroll has been libeling my name all over his website. I went
on there to confront him about his actions. He unjustifiably attacks people on
his forum by accusing them of being "new age frauds".

I discovered that he was doing this to me as well as some of the people that I
have interviewed on my website. His unethical practices include deleting
entire sentences of my posts and placing falsehoods to create a misleading
perception about what I had said. He is also now making up complete lies that I
can easily prove.

I have been told he has also done the same thing to countless other people who
have challenged him on his deceptions and defamation of character, which is not
all that he has done. He has also posted my street address, unlisted phone
number and private email address on his website. I have two small children,
ages 2 and 6; now I have to constantly look out for them playing in our back
yard after seeing a strange man parked outside my house and sitting in his car
for over an hour last week. I have repeatedly asked him to remove my personal
data from his site; but he still refuses to do so. He seems to think this is
some kind of a sick game.

I am also an artist and am in the public eye and what he has done here is an
egregious invasion of my privacy and by doing so is endangering my wife and
small children and my property. I have been told that he has done the same to
many others as a form of intimidation and to silence anyone who questions his
unethical practices.

This man obviously has no sense of social boundaries and will impose himself
like a predator in any way he possibly can.

He has to be stopped from doing this to more innocent people. I sincerely hope
that you can remedy this serious situation.

Please let me know if you have any questions or need proof of what I am saying.

Sincerely,

John LeKay
john@heyokamagazine.com


The message from "General Counsel" reads:


We have been advised by a visitor to your web site (at:  newagefraud.org) that such web site contains content that is alleged to be untrue, offensive, slanderous, harassing or controversial in nature.  Please see the e-mail below for more information.

Accordingly, please remove such content within 48 hours of this notice. This includes all mentions of John LeKay on your Web site.  Failure to delete such content within such period will result in termination of your website.

As you may know, we are a web hosting company. We are not responsible for the content or links posted by our customers who create and place content on websites that we host. We further do not "monitor" the websites that we host or prescreen the content placed by customers on their sites. However, when we become aware of allegations of improper activity by one of our customers using a hosted site, which would be a violation of our Terms of Service (TOS) governing the web sites, we take such situations seriously, investigate promptly, and take appropriate action.

Should you have further questions, please contact us.

Sincerely,

General Counsel


I responded:


I have researched the complaint and have read each and every mention of John
Lekay on the NAFPS forum. I was unable to find any libelous statements.
Controversial, perhaps, but I am hard pressed to believe that controversial
material is prohibited by your TOS.

Note that I have also attached a zip file containing correspondence which
dates from just before our hosting account was obtained and on which we
relied for the decision to choose this hosting service.

Based on what we were told in the attached emails, I do not think anything
that has been written on the NAFPS forum about Mr. Lekay warrants deletion
of the forum. Indeed, this is the first complaint I have received, and seems
quite weak when properly investigated.

Also note that Mr. Lekay's website is filled with articles which might be
libelous to Al Carroll & and other members of NAFPS.

You may contact me if you need further information.

Below are links to each and every post from the NAFPS forum containing any
mention of John Lekay. This list is current as of 9:00 PM Central Time
today:

http://newagefraud.org/smf/index.php?topic=1194.msg7330#msg7330
http://newagefraud.org/smf/index.php?topic=1194.msg7355#msg7355
http://newagefraud.org/smf/index.php?topic=1194.msg7316#msg7316
http://newagefraud.org/smf/index.php?topic=1206.msg7269#msg7269
http://newagefraud.org/smf/index.php?topic=1206.msg7439#msg7439
http://newagefraud.org/smf/index.php?topic=1206.msg7249#msg7249
http://newagefraud.org/smf/index.php?topic=880.msg7378#msg7378
http://newagefraud.org/smf/index.php?topic=1119.msg7411#msg7411
http://newagefraud.org/smf/index.php?topic=1232.msg7210 (entire thread)
http://newagefraud.org/smf/index.php?topic=1255.msg7408#msg7408
http://newagefraud.org/smf/index.php?topic=1255.msg7412#msg7412
http://newagefraud.org/smf/index.php?topic=1255.msg7414#msg7414
http://newagefraud.org/smf/index.php?topic=1255.msg7430#msg7430
http://newagefraud.org/smf/index.php?topic=1255.msg7436#msg7436
http://newagefraud.org/smf/index.php?topic=1255.msg7437#msg7437
http://newagefraud.org/smf/index.php?topic=1029.0 (entire thread)
http://newagefraud.org/smf/index.php?topic=1196.msg6932#msg6932
http://newagefraud.org/smf/index.php?topic=1231.0


Updates to follow as they are received. Hopefully this forum will not vanish...

The attachment I mentioned contains the following email exchange:


Me: If a site is mainly a message board or BB, with many different people posting on it, and if a message that might be considered defamatory is posted, and if PowWeb got a complaint about it, how would your company handle the situation? Would this be considered a violation of the TOS?

Them: Depending on the content posted, we would normally warn our client of the
reports made against their forum and why. Usually if we get enough complaints,
then we will advise our clients to remove the content, or we will step in to
disable the BB. If you post anything containing obscene or pornographic
content, then you will be inviolation of our ToS. If you are caught doing
so, then your servcies will be disabled or terminated.

Me: Thank you for the quick reply. I understand what you say, and wish to provide a few details so you can give a definitive answer for this particular case.
 
My client is Native American and has a group that is working to expose impostors who claim to be Native American and are pretending to be "medicine" people for personal gain. The bulletin board would be a centerpiece for this group's communications, reports, etc. Most of the group members are also Native American.
 
In the past they have used Yahoo! Groups and occasionally one of the frauds they work to expose would lodge a complaint, and instead of weighing all the facts, Yahoo would simply delete the entire group without a warning, causing the message archive to disappear. This has happened to them several times over the past few years.
 
There was no obscenity or pornography; the issue was these people who have been falsely claiming "Indian" heritage feeling the crunch as this group works to put an end to cultural misappropriation and exploitation. They did not want their followers to find prrof that they are impostors. Yahoo went along with them, without taking time to investigate and learn the truth.
 
I proposed the board as a solution for the issue of repeatedly losing the entire database and archives, but before making the decision on where it is to be hosted I wanted to hear from you on this.

Them: Not a problem, let us know if you need anything else.

Me: Thank you again for the quick reply.
 
I realize that you may be quite busy but when you get a moment I would appreciate if you would tell me in at least one full sentence (that I can show to my client, prior to going ahead with the hosting account) what you mean by "not a problem." The group will want a somewhat more substantial statement regarding the policy if this particular situation should arise.

Them: Well, by what you have explained to me, the forum you are designing looks
like is only going to be used as a means of information. If that is the case, then
we do not administer this, but you will however. This means as long as your
contents are clean, then we have no problem with it hosted on our servers.

Let us know if you need anything else.

Me: I don't know what you mean exactly by "clean". I would assume that you mean "free of obscenity and pornography" but I have learned that making assumptions is rarely advisable.

Them: Essentially, we will not operate the same as Yahoo.  We investigate
each complaint made against our customers and then take action if necessary.
Action will not come lightly either, because we require the person issuing the
complaint to provide some kind of legal responsibility, that he/she is
requesting action based on their complaint being legitimate and accepting
legal responsibility if their accusation is later proven to be false. 

So for example, if someone complains to us that one of our customers has
posted something on his message board that is libelous or committing defamation
of character, they must send us a document saying as such and that they take
full legal responsibility if the accusation is false.  If they can provide that
documentation, we will most likely either disable the website or disable the
message board then contact the customer to remove the offending content
before reactivating the website or message board.

I suggest you read through our policy for more explicit information. 

Essentially, your website can't be fraudulent or contain content that is libelous,
inflammatory, or promoting hate, at least, as far as "free speech" is concerned. 
The policy page will really give a more specific description.


The above exchange occurred in mid-October of 2004.

[Barnaby_McEwan]

They're implying that all mention of Lekay on this forum is libellous?



I think they need to hear from a lawyer.

[educatedindian]

Lekay's lies to our hosting company are not even original. He's taking them word for word from John Martin's earlier lies about someone else.

The most Lekay can do is be mildly annoying, and amusing to watch as he gets more hysterical and childish. This forum will continue no matter what.

[Johnnie]

Gosh folks,

Watta cry baby.  He is not Lakota and is using "Heyoka" for his magazine.  He is inviting people to take shots at him.  Think I will post his whining over on Indianz along with links to his website and see what he looks liike when those terriers, bullbogs and pit bulls get done with him.

All I can say to (?) not to mention his name, is CHANGE YOUR DIAPER!!.

Johnnie

[180IQ]

I will post his whining over on Indianz along with links to his website and see what he looks liike when those terriers, bullbogs and pit bulls get done with him.

What, no Dobermans?

[Johnnie]

Folks,

Some additional news on this.  I sent an email to Lick Kay, and from an email address I don't use, and will only be good for another three days, and guess who sends an email to it?    John Martin, "Tall Solder."

At the suggestion of some folks I went to the Bad Eagle forum and read and posted.  Was hard since it is "Aryan Nation" types.  Fenced a little with Martin but I didn't realize that he and the other guy were tight.

BTW, Lick Kay sent me his home phone and wants to talk.  

Somewhere I heard that you can tell a man by his friends and those two?  Well, lets just say that if you saw them walking down the street I would look for an old guy behind them with a plastic bag and a scoop.

Johnnie

[ironbuffalo]

 "First official complaint". Translation: NAFPS is doing something right

[educatedindian]

Always appreciate support. Perhaps the best way to write to powweb to remind them the kind of racist loons that Lekay and Martin are, and that they are making up complete lies. Anyone who takes a look at the threads can see that.

legal@powweb-inc.com


The "Steve W" identity that was in here was both Lekay and Martin, sharing the same account.

Martin is as dumb as ever, getting them both kicked out. So Lekay has to resort to more whining. I think he's about run out of people to pout to.

[Barnaby_McEwan]

I've just read Lekay's complaint again.

I have two small children,
ages 2 and 6; now I have to constantly look out for them playing in our back
yard after seeing a strange man parked outside my house and sitting in his car
for over an hour last week.

Al, could you make your evil minions look a little less evil please? They are standing out too much. Thanks.

[Barnaby_McEwan]

This is for you, John:

[Moma_porcupine]

I am not a lawyer , but besides the fact that truth is an absolute defence against a complaint of defamation , I don't think  public figures ( such as John Lekay or Suzanne Dupree and pretty much everyone who gets  discussed in NAFPS  ) are legally protected from public discussions that disagree with their public behavior , even if these  public figures imagine what is said about them is unfairly defamatory .

Who our Spiritual leaders are and ARE NOT , is very much a matter of public concern , and I would really like to hear anyone try to argue it is not .

http://research.lawyers.com/glossary/public-figure.html

Public figure
Definition - Noun : an individual or entity that has acquired fame or notoriety or has participated in a particular public controversy

http://www.expertlaw.com/library/personal_injury/defamation.html
 
Public Figures

Under the First Amendment of the United States Constitution, as set forth by the U.S. Supreme Court in the 1964 Case, New York Times v Sullivan, where a public figure attempts to bring an action for defamation, the public figure must prove an additional element: That the statement was made with "actual malice". In translation, that means that the person making the statement knew the statement to be false, or issued the statement with reckless disregard as to its truth.


http://dictionary.law.com/definition.asp?selected=1681&bold=
public figure
n. in the law of defamation (libel and slander), a personage of great public interest or familiarity like a government official, politician, celebrity, business leader, movie star or sports hero. [Incorrect harmful statements published about a public figure cannot be the basis of a lawsuit for defamation unless there is proof that the writer or publisher intentionally defamed the person with malice (hate).

A person can also become a "limited public figure" by engaging in actions which generate publicity within a narrow area of interest. For example, a woman named Terry Rakolta was offended by the Fox Television show, Married With Children, and wrote   letters to the show's advertisers to try to get them to stop their support for the show. As a result of her actions, Ms. Rakolta became the target of jokes in a wide variety of settings. As these jokes remained within the confines of her public conduct, typically making fun of her as being prudish or censorious, they were protected by Ms. Rakolta's status as a "limited public figure".

http://www.lectlaw.com/def2/p117.htm

a fairly high threshold of public activity is necessary to elevate a person to public figure status, Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 745, and, as to those who are not pervasively involved in public affairs, they must  have "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved" to be considered a "limited purpose" public figure . Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 345.

http://www.answers.com/topic/defamation?cat=biz-fin
The Court declared that the First Amendment protects open and robust debate on public issues even when such debate includes "vehement, caustic, unpleasantly sharp attacks on government and public officials." A public official or other plaintiff who has voluntarily assumed a position in the public eye must prove that defamatory statements were made with knowledge that they were false or with reckless disregard of whether they were false. (con..)

http://64.233.167.104/search?q=cache:h3OTXbg6RPQJ:caselaw.lp.findlaw.com/scripts/getcase.pl%3Fcourt%
3Dwi%26vol%3Dwisctapp2%255C4q99%255C97-3675%26invol%3D1+legal+definition+%22+public+controversy+
%22&hl=en&ct=clnk&cd=6&gl=ca

In order to determine whether one may be considered a public figure for a limited purpose, we apply a three-step test. See id. at 82, 426 N.W.2d at 49. A defamation plaintiff can be found to be a limited-purpose public figure if: (1) the plaintiff is involved in a public controversy; (2) the plaintiff's role in the controversy is more than trivial or tangential; and (3) the alleged defamation was germane to the plaintiff's participation in the controversy. See id.  at 83, 426 N.W.2d at 49.
(con..)
A public controversy is not simply a matter of interest to the public; it must be a real dispute, the outcome of which affects the general public or some segment of it in an appreciable way....[E]ssentially private concerns or dis-agreements do not become public controversies simply because they attract attention. Rather, a public controversy is a dispute that in fact has received public attention because its ramifications will be felt by persons who are not direct participants.

As I see it , anyone advertising themselves as some kind of American Indian Spiritual leader , or healer , or who is
incorporating this into some kind of business , when the Native community doesn't agree with what they are doing , or claiming ,  is definitely "thrusting themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved", and is often also engaging in false advertising .

It also looks like false advertising is not protected as freedom of speech
 
http://caselaw.lp.findlaw.com/data/constitution/amendment01/17.html#2

Different degrees of protection may also be discerned among different categories of commercial speech. The first prong of the Central Hudson test means that false, deceptive, or misleading advertisements need not be permitted; government may  require that a commercial message appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent deception

There is also the issue of indiginous people right to control maintain and protect their own culture . When this right to say no is ignored it is frequently refered to as theft or rape . Having this message board silenced felt a lot like being the victim of theft or rape but being smothered or having your phone line cut so you can't let anyone know how you are being violated .

There is laws that say people have a right to defend their property .

I know  , when it comes to indiginous peoples , laws protecting peoples rights often don't get upheld , but presumably indiginous peoples do have the same right to protect their cultural property , and disscuss matters of public concern, as other Americans - Seeing this message board shut down while someone like John Lekay and the Heyoka magazine continued to spread it's misinformation,  sure made it seem like this is not the case

And Lekay has said he expects an apology for people pointing out to him ,  that the unequal respect for the human rights of Native peoples is connected to genocide , and that some of his behavior may be contributing to this ...   

He sure won't be getting an apology from me .

[crow_agency]

Dear Forum Admn.

All you have simply done is post a cadre of links that are from this site.
 

Don't you ever venture out of here?

You should, it could be an eye opener for you.


From what I have read of this joint, is that you:

a. either agree with Carroll or get banned.

b. If you do not agree with Carroll you still get banned.

C. just agree with Carroll and be a submissive cow.


Carroll leaves very little room for any disagreement with his statements.




How sad.

[180IQ]

Dear Forum Admn.

All you have simply done is post a cadre of links that are from this site.

Don't you ever venture out of here?

You should, it could be an eye opener for you.

From what I have read of this joint, is that you:

a. either agree with Carroll or get banned.
b. If you do not agree with Carroll you still get banned.
C. just agree with Carroll and be a submissive cow.

Carroll leaves very little room for any disagreement with his statements.

How sad.

I think you're addressing the wrong person. I do the technical side of this forum (as best I can, as a volunteer, in spare time, of which I have very little). I haven't personally banned anyone, I leave that to the moderators.

[educatedindian]

"Crow Agency" is actually Lekay doing his insultingly stereotyped imitation of an NDN again, or racist John Martin proving the only way he knows to be an NDN is to imitate racist stereotypes of NDNs.

Anyone who thinks no one disagrees with me in this forum must have never read the forum. Maybe they should read the old posts between me and my late friend Mike Two Horses. We disagreed on just about everything, except that this issue is important.

The only people who've ever been banned have been spammers or racists, and Lekay and Martin are both, plus whiners unable to handle criticism.

[earthw7]

I have done my best to quietly speak out aganist abuser of our culture.
I was wonder why this le-ay is using the word heyoka for his magazine?
Heyoka is a clown but everything he is saying is backwards.

So what this guy is saying is all backwards.