REPORT AND RECOMMENDATION ON MOTION FOR PRELIMINARY INJUNCTION
I. INTRODUCTION ........................................................................... 2
II. PROCEDURAL HISTORY ................................................................ 3
III. STATE OF IOWA v. TRACEY RICHTER ............................................. 5
IV. FINDINGS OF FACT ...................................................................... 8 A. The Ripoff Report ........................................................................... 8
B. Events Pre-Dating the Wehde Shooting ................................................. 9
C. The Shooting and its Aftermath .......................................................... 9
D. Smith Charges Richter .................................................................... 11
E. Ripoff Report Postings .................................................................... 11
F. Smith's Investigation ...................................................................... 14
G. Smith Charges Meade (and Later Un-Charges Him) ............................... 17
H. The Connection Between Magedson and Meade .................................... 17
V. APPLICABLE LEGAL STANDARDS ................................................ 19 A. Preliminary Injunctions .................................................................. 19
B. The Communications Decency Act of 1996 ........................................... 20
C. Iowa Code Section 720.4 ................................................................. 31
VI. ANALYSIS .................................................................................. 32 A. Likelihood of Success on the Merits ................................................... 33
1. First Amendment ........................................................................ 33
a. CDA Immunity ........................................................................ 33
b. Retaliatory Motive .................................................................... 35
ii. Adverse Action ...................................................................... 37
iii. Motivation ........................................................................... 38
2. Fourth Amendment .................................................................... 41
3. Sixth Amendment ...................................................................... 42
B. The Other Dataphase Factors .......................................................... 43
1. Irreparable Harm ...................................................................... 43
2. Balance of Harms ...................................................................... 44
3. The Public Interest ..................................................................... 44
C. The Recommended Injunction .......................................................... 47
D. Bond ......................................................................................... 50
VII. CONCLUSION ............................................................................ 50
This case is before me on plaintiffs' motion (Doc. No. 7) for preliminary injunction. The motion has been referred to me pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 72 for the issuance of a report and recommended disposition. See Doc. No. 8. I conducted an evidentiary hearing on May 1, 2015. Attorneys Joel Robbins, Maria Speth and Angela Campbell appeared for plaintiffs. Attorneys Kristopher Madsen and Robert Livingston appeared for defendant. Plaintiffs called three witnesses: Benjamin Smith, Adam Kunz and Edward Magedson. In addition, plaintiffs offered Exhibits 1 through 41,1 all of which were ultimately receivedwithout objection.2 Defendant called no additional witnesses and offered no exhibits. After the hearing, plaintiff submitted two additional exhibits - Exhibits 42 and 43. Defendant does not object to either exhibit. As such, both are received into evidence for purposes of plaintiffs' motion.
The parties submitted pre-hearing briefs. See Doc. Nos. 7-1, 16 and 20. At the conclusion of the hearing, the parties agreed to present their closing arguments in writing. All of those arguments have now been filed. See Doc. Nos. 44, 45 and 49. The motion is now fully submitted and ready for decision.3
Plaintiffs Xcentric Ventures, LLC (Xcentric), and Ed Magedson (Magedson) commenced this action on January 30, 2015, by filing a complaint and jury demand (Doc. No. 2). The only named defendant is Ben Smith (Smith), in his individual capacity as the County Attorney of Sac County, Iowa. Id. In general terms, the complaint alleges that Smith has violated plaintiffs' constitutional rights by misusing his powers as a prosecutor to punish them for speech that is critical of him. More specifically, plaintiffs contend that Magedson is the managing member of Xcentric and that Xcentric owns and operates a website called the "Ripoff Report." Doc. No. 2 at ¶¶ 14, 18. They state that the Ripoff Report provides a forum on which individuals may post complaints about businesses and government officials. Id. at ¶ 15. They allege that various users of theRipoff Report have posted comments critical of Smith and that Smith has retaliated against Xcentric and Magedson in various ways, including the issuance of subpoenas, the use of search warrants, the public disclosure of confidential and/or privileged information and the threat of criminal prosecution. Id. at ¶¶ 2-3, 5, 7. The complaint includes the following counts:
1. Violation of constitutional rights (brought under 42 U.S.C. § 1983)
2. Abuse of process (brought under 42 U.S.C. § 1983)
3. Abuse of process (Iowa law)
4. Malicious prosecution/wrongful institutional of civil proceedings (Iowa law)
5. Invasion of privacy (Iowa law)
Id. at pp. 19-22. Plaintiffs request declaratory and injunctive relief, compensatory damages, punitive damages, interest, attorney fees and costs. Id. at pp. 22-23.
On February 16, 2015, plaintiffs' filed their motion (Doc. No. 7) for preliminary injunction. The motion seeks an injunction that would bar Smith from:
A. bringing criminal charges against Xcentric or Magedson related to any postings related to criticisms of the State or its evidence presented in State v. Richter (as threatened);
B. continuing the investigation of Xcentric and Magedson such as sending search warrants or subpoenas to their banks, email providers and other service providers;
C. reading Xcentric's privileged attorney-client communications;
D. disclosing Xcentric's attorney-client privileged communications to others;
E. disclosing Xcentric's financial and banking records to others;
F. disclosing Magedson's personal and private communications to others;G. disclosing any communications or information obtained through investigation of Xcentric or Magedson;
H. wrongfully instituting civil proceedings on behalf of the State; and
I. threatening, intimidating, accusing or otherwise stating that Plaintiffs' lawyers are violating any laws in representing Plaintiffs.
Doc. No. 7 at 2. Smith resists.
III. STATE OF IOWA v. TRACEY RICHTER Any attempt to understand this case requires some knowledge of a criminal case that Smith prosecuted against Tracey Richter (Richter) in 2011. The Iowa Court of Appeals described the facts of that case as follows:
On December 13, 2001, Richter shot and killed Dustin Wehde in her home in Early, Iowa. A trial information was filed against her in Sac County almost ten years later on August 5, 2011, charging her with murder in the first degree. Richter pleaded not guilty and filed a notice of an affirmative defense of justification. Trial was moved to Webster County.
There was no question Richter shot and killed Wehde. Richter used two different guns, and the autopsy showed Wehde had been shot nine times. Three shots were to the back of his head and neck; the trajectory of some of those wounds indicated the shots came from above Wehde. At least one shot occurred after blood had started to congeal. The crucial question at trial was whether Richter was justified in shooting Wehde.
The jury heard two very different stories. Each party has laboriously set out in their briefs the evidence supporting their version of events. The State emphasizes evidence showing Richter intentionally, deliberately, and premeditatedly killed Dustin Wehde to frame her ex-husband. For example, the State's crime scene reconstructionist, Rodney Englert, testified that the trajectories of the bullets and the wounds to Wehde indicated the initial shots could have been fired from an area in the southeast corner of the master bedroom near the gun safe and that the shots could have been firedas Tracey was crouched or kneeling. Englert stated later shots to Wehde's head would have been fired from above Wehde and that there was congealed blood on Wehde's face indicating a shot was fired into his head after he was dead.
Mary Higgins had been a good friend of Richter's in Early. She told the jury that shortly after the shooting, Richter and her family went on a several-week trip to Australia. When Richter returned in February, Richter told Higgins about the shooting "[l]ike she was telling me her grocery list. She basically had no emotion to it." Richter told Higgins that she "unloaded" the gun as she was being pulled at by the two intruders; she then got up and stepped over what she thought was dirty clothes to check on her children. Richter told Higgins,
She took the two—well, the three children down the hall. And as they were going down the hall, there was a body there and she told me that the body was moving and she stood over him and said, "Stop moving" or either it was,
...
