By Howard Fischer
Capitol Media Services
PHOENIX -- The Arizona Board of Regents has no legal right to sue the owner of an Instagram account who posted anonymous messages about "ASU covid parties.''
In a ruling Friday, the 9th Circuit Court of Appeals rejected claims by the regents that anyone who saw the posts would have believed that the posts actually came from Arizona State University. And the judges said the fact that one of the posts used ASU's logo and even the university's maroon and gold colors did not change their minds.
If nothing else, the judges said the federal Lantham Act, which protects trademarks, applies only in commercial circumstances. That, they said, was not the case here.
But the appellate court did more than affirm a lower court ruling that threw out the legal bid by the regents. The judges also took a swat at the regents for filing suit in the first place.
They said that the posts, as a whole, appear to constitute "expressive work'' because they mocked the policies and the administration of the regents and ASU.
"To the extent ABOR's appeal attempt to improperly use trademark laws to block the expression of negative views about the university and its administration, such efforts fail,'' they wrote.
The legal fight is over Instagram posts that began appearing as students were turning to classes in August 2020 claiming that Covid-19 was "a big fat hoax'' and promising details on a party, including one where hydrochloroquine, a controversial drug which some claim can prevent or cure the virus, would be distributed.
There also was a note saying that masks would be forbidden at any parties. And then there were posts from the owner of the account portraying ASU and its leadership as Nazis and comparing the university's mask requirement to forcing Jews to wear a yellow Star of David.
The regents sued both "John Doe'' and Facebook, the parent company of Instagram.
Aside from the claims about readers believing that the posts came from someone at ASU, attorneys for the board said the message encourage against wearing masks "which directly contradicts and undermines the actual health-related message, consistent with the local law that mandates wearing of masks at the time.''
Facebook was dropped from the lawsuit after it disabled the account and prevented that person from creating new ones.
An individual claiming to be Doe did file an answer to the lawsuit. The court, however, refused to accept it, saying it was filled with obscenities and inflammatory language, and the case proceeded without that person.
But even with no opposition, U.S. District Judge Dominic Lanza refused to issue a default judgment to the regents, saying even without someone mounting a defense that the claims cannot stand. That led to the appeal and Friday's ruling by the 9th Circuit.
It starts, the three-judge panel said, with the fact that no one who saw the posts would be led to believe they actually came from the university.
"Of Doe's 18 posts included on the Instagram page, only one post included the use of Arizona Board of Regent's mark and trade dress,'' the judges said.
"That one post contained profanity,'' the court wrote in its unsigned opinion. "A reasonable consumer would not think that a university would use such language when addressing the public.''
Then there's the scope of the Lantham Act which deals only with commercial use.
"The record shows that Doe used the marks to criticize and mock Arizona Board of Regents and ABOR's policies and administration,'' the court concluded.
On top of that, the judges said, while the initial posts referred to a future party, none of them referenced a specific one.
"Nor did they mention a specific date, time, cost or any other details about any party,'' they said.
There was no immediate response from the regents.
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