12 count criminal indictment returned against prominent oral surgeon by Grand Jury
Dr. Gordon T. Austin, DMD Oral Surgeon
” A retired dentist in Georgia, who pleaded guilty in 2009 to filing Medicaid claims for procedures he didn’t actually perform, doesn’t want the world to see a nearly seven-year-old news report about allegations from patients that he physically assaulted them while in his office.
It’s a story that only registered as a minor blip on the news radar back when it happened, and thanks to poor archiving of the local media (and a press release from the attorney general that has vanished without explanation), it may have simply faded into vague “Wasn’t there a dentist who…?” memory.
But now that the doctor has sued an anonymous YouTuber — subpoenaing Google to try to reveal that user’s identity, drawing legal attention from a high-profile first amendment advocate — he and his previous actions are back in the critical spotlight.
[UPDATE: Around the time this story was originally posted, YouTube pulled the video in question, claiming it had been flagged as “spam,” a “scam” or “commercially deceptive.” However, following an appeal from the user — and, perhaps coincidentally, comment requests from the media — it has now been reinstated.]
In March 2008, Dr. Gordon Trent Austin of Carrollton, GA, was indicted on multiple counts of simple battery, two counts of aggravated assault, and one count of first degree cruelty to children.
Among the accusations included in those charges, some patients said they were struck in the face with a tool known as a dental elevator.
Police arrested Dr. Austin in April 2008. He was released on bond the same day,according to news reports from the time.
A trial was initially slated for Sept. 2009, but the doctor instead entered guilty pleas in August of that year to six counts of misdemeanor theft for submitting claims to the Georgia Medicaid program for teeth extractions he did not perform.
A press release sent out at the time — which has, in just the last week, been placed behind a password-protected page (much more on that later in the story) — makes no mention of the battery and assault indictments, but a look at records [PDF] obtained from the Georgia Board of Dentistry show that Dr. Austin’s deal with the state included an agreement by prosecutors to not pursue three indictments if he ceased practicing oral surgeries and dentistry for a period of 10 years:
In Dec. 2009, the Board revoked Dr. Austin’s license to practice dentistry in the state [PDF].
The New Lawsuit
Now, more than six years later, Dr. Austin is trying to sue an anonymous YouTube user for defamation. The YouTuber didn’t post their own video about the incident, but rather just reposted a two-part story run by the local Fox affiliate in Atlanta back in 2009:
This video, which was posted by the YouTuber in March 2009, includes patients’ stories about allegedly being struck by the doctor when they began to complain during dental procedures. The apparent goal, according to these patients, was to quiet them so that others could not hear them outside of the room.
[UPDATE: As noted above, some time between Jan. 18 and the morning of Jan. 19, 2016, YouTube removed the video from its service. The user immediately appealed, and YouTube subsequently reinstated the clip. We’ve reached out to Dr. Austin’s lawyers for comment. We’re also still awaiting an explanation from Google and YouTube as to how this video could have been considered — even briefly — a scam, spam, or commercially deceptive.]
In Aug. 2015, more than six years after the video was posted, Dr. Austin filed a complaint [PDF] in a Carroll County, GA, court. It accuses the anonymous defendant of defaming the doctor and his practice “via various false accusations and statements,” though the complaint does not specify which of the statements made in the video are problematic.
Dr. Austin subsequently subpoenaed YouTube’s parent company Google to get them to provide information that would help identify the actual defendant. Google then notified this still-anonymous user in Nov. 2015 that it intended to comply with the subpoena.
Then last week, representing the “Doe” defendant, Paul Alan Levy from Public Citizen and Phil Malone from Stanford University Law School, filed a motion [PDF] to quash that subpoena, arguing that Dr. Austin has provided no evidence that the anonymous user did anything defamatory by posting the YouTube clip, and that the doctor’s case can’t possibly succeed.
The motion takes issue with the complaint’s repeated references to unspecified “false” statements allegedly made in the video. It also asks why the Doe defendant is being accused of malicious intent against the doctor, saying that the lawsuit “never explains why an ordinary citizen would not be justified in accepting the word of the prosecution as well as Fox News in repeating the gist of the indictment and republishing the TV story.”
Where’s The Proof?
There is currently no national legal standard for when it’s legally okay to unmask an anonymous online user. However, many states follow the so-called “Dendrite standard,” referencing the 2001 New Jersey Superior Court ruling inDendrite International, Inc. v. Doe No. 3.
As part of that case, a software company sought to compel Yahoo! to identify anonymous posters — represented by Levy in the appellate hearing — on a bulletin board run by the Internet giant. The appeals court not only upheld the lower court ruling that kept the commenters anonymous, but also created a five-point standard by which other courts could determine when it was appropriate to unmask an anonymous online user.
One of those requirements is that the plaintiff must “identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.”
Some states, like California, have adopted a more streamlined three-point standard, following the 2005 Delaware Supreme Court ruling in Doe v. Cahill. That case — also argued by Public Citizen’s Levy — involved the efforts of local politicians to compel Comcast to unmask a critical commenter. Like Dendrite, the Cahill standard requires the plaintiff to provide evidence to support their claim before being able to learn a user’s anonymity.
Beyond that, there is also the fact that the video was posted more than six years before the lawsuit was filed. The defendant argues that state law in bothGeorgia (where the complaint was filed) and California (where the subpoena was served) puts a one-year statutory limit on filing a libel claim. Similarly, argues the motion, Dr. Austin’s claim of tortious interference must fail because of Georgia’s four-year statutory limit.
Plead Guilty: Password Required?
In researching this case, we noticed something odd. A simple Google search for Dr. Austin turns up the YouTube video in question, but it also turns up an Aug. 2009 press release from the Georgia Attorney General’s office. Or rather, it turns up a link to that press release.
When we clicked on the link, it didn’t take us to the AG’s statement on how Dr. Austin had agreed to plead guilty to the misdemeanor theft charges, but instead to this password-protected page:”