4.1 Biomatrix case exercises - student module  (Page 8/21)

Decision point three: how far does free speech go?

The claims made by these individuals in their emails were pretty strong:

• Biomatrix's most popular product, Synvisc, has produced significant harmful side effects and the company has taken wrongful measures to suppress this information. Synvisc is a manufactured substance that resembles the natural fluids that lubricate knee movements. These fluids disappear with age producing a condition called osteoarthritis. Synvisc has been presented as a highly promising treatment for this problem.
• They also accuse Biomatrix of covering up that fact that they are targets of potentially damaging lawsuits.
• These three individuals, who style themselves the BXM Police, also accuse the company of covering up negative, harmful information about their upcoming merger with Genzyme. The messages claim that inside information reveals that the merger will never take place.
• The BXM police also accuse Biomatrix top management of having committed war crimes and acts of sexual harassment.

During pre-trial depositions, the accused were unable to substantiate any of these claims. While the motives for posting these messages have never been made clear three stand out: revenge, short selling, and the perception that rules of defamation did not apply in cyber space. You have been asked by your organization to contact the BXM Police and propose that they appeal this decision. You and your organization think that there are strong legal and ethical arguments, based on the right to free speech, that need to be put forth in this case. Your job in this decision point is to set forth these legal and moral arguments. In other words, construct a comprehensive defense for the BXM Police.

Important considerations

• EPIC (Electric Privacy Information Center) and the ACLU (American Civil Liberties Union) present an amici curiae (friend of the court brief) outlining their concerns about the use of John Doe lawsuits to pierce online anonymity. This brief is summarized in the Biomatrix case materials.
• Perhaps the strongest case for Free Speech is made by John Stuart Mill in On Liberty. Consult this book and find his argument in the first chapter. The summary of this argument in the Biomatrix case materials will help. Do defamation lawsuits suppress free speech. Why does Mill think that it is wrong to suppress even completely false speech?
• Did Biomatrix and its management team suffer damages as a result of the Yahoo messages? What is this damage? What evidence proves that the damage was caused by the negative speech and not something else? Who bore the burden of proof in the summary judgment against the BXM Police?
• What is the strongest argument that Biomatrix made against the speech of the BXM three? How can you and organization counter this argument?
• The strongest argument the BXM Police offer for their actions is that they are not bound by rules of veracity and defamation while operating pseudonymously online. Should we be held responsible for what we say online? In the same way that we are held responsible off line? Doesn't Yahoo's disclaimer to readers that they should not assume that what they read is true suffice to exculpate those who post false speech?
• It has been suggested that the BXM Police were motivated by greed. Their speech was designed to lower the price of Biomatrix stock so they could profit from short selling it. Does this change you defense? There is also inconclusive evidence that they were not acting alone? Does this change your defense?