Thou Shalt Not Discriminate: It Means What It Says, According to Justice Kavanaugh

Morris County Board of Freeholders v. Freedom from Religion Foundation, No. 18-364 and Presbyterian Church of Morristown v. Freedom from Religion Foundation, No. 18-365. Petition for Certiorari denied March 4, 2019.


The second of two commentaries concurring in the Supreme Court’s denial of petitions for certiorari in cases raising First Amendment issues came recently in Morris County Board of Chosen Freeholders, et al. v. Freedom from Religion Foundation , et al, No. 18-364 and The Presbyterian Church in Morristown v. freedom From Religion Foundation, et al., No. 18-365 (March 4, 2019).

Justice Kavanaugh, joined by Justices Gorsuch and Alito, predict that the Court must at some time decide whether governments may deny historic preservation funding to religious entities, but that determination must await another case, given the factual record before the Court and the relative recency of Trinity Lutheran Church of Columbia v. Connor, 582 U.S.     (2018), subsequent to which a robust body of cases applying its principles ought to be permitted to develop.

Although deferring further determination concerning discrimination against religion in the provision of public funds in the Morris County case, the three justices were plain in offering the straightforward and unequivocal view that governmental discrimination against religion is constitutionally prohibited by the Free Exercise Clause the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.

Unlike potentially difficult cases in which the government as speaker raises Establishment Clause issues or in which private entities seek exemptions on religious grounds, the Morris County case is relatively easy, Justice Kavanaugh noted.  It has long been established — and indeed is a ‘bedrock principle’ of constitutional law — that the government may not affirmatively or negatively discriminate against religious or specific beliefs.

Having articulated their position on religion’s legal parity with secular individuals, entities and institutions, this concurrence, in denying review, removes from doubt whether a retreat from Trinity Lutheran is a possibility and proffers guidance to courts of appeals and trial courts concerning the development of post-Trinity Lutheran case law.  

Morris County v. Freedom from Religion Foundation, 18-364. March 4, 2019

When Fifteen Minutes of Fame Hurts: Justice Thomas Invites Review of Media Insulation from Defamation Claims

McKee v. Cosby, No.  17-1542, 586 U.S.     . Petition for certiorari denied February 19, 2019.

Katherine McKee has publicly alleged that comedian Bill Cosby sexually assaulted her decades ago.  McKee has also alleged that in response to her allegations, Cosby’s attorney drafted and leaked a letter disparaging her character.  Her defamation claim against Cosby was dismissed, however, because by virtue of her public allegation she became a “limited public figure” and, as a result, she became subject to a higher standard of proof than applies to ordinary citizens.  Following New York Times v. Sullivan,  376 U.S. 254 (1964), public figures cannot succeed in libel against news media unless publication was made with “actual malice,” defined as actual knowledge of the falsity of any published statement or reckless disregard for its truth or falsity.

While the insulation proffered to the media may have been judicially fashioned with the best of intentions — to promote a press free from needless fear of liability — the impossibility of meeting the “actual malice” standard, while a boon to the media, can be crippling to ordinary citizens who are, sometimes unwittingly, and sometimes not, catapulted to public figure status.  

There is no government or private Office of Reputation Restoration. Traditionally the courts, in administering the law of defamation, served as the next best thing.  

Yet the courts no longer provide redress, opines Justice Clarence Thomas, and they do not because of the judicially created “constitutionalization” of the law of defamation in New York Times v. Sullivan.  

Justice Thomas observes that the New York Times v. Sullivan Court concluded that the heightened standard of proof it announced was compelled by the First and Fourteenth Amendments, but the Court did not say how its conclusion was grounded in the conceptualization of the Free Speech and Equal Protection Clauses as they were originally envisioned.

Nothing in history or in the Founders’ expressions indicates that public figures ought to lose remedial rights in order to promote speech rights.  Distaste for the criminalization of criticism of public figures, as found in public disdain for the Sedition Act of 1789, does not support the inference that civil standards must be heightened. Further, Justice Thomas offers, nothing indicates that the admittedly judicially created federal rule of New York Times v. Sullivan was intended to supplant state law of defamation, yet that has been the result.  

While Justice Thomas has joined the Court in declining review in light of the factually intense McKee claim, he has invited review of what he characterizes as judicial policy making in a proper case.

McKee v. Cosby, 17-1452 Certiorari denied February 19, 2019

The Old Concrete Cross: Humanists and Traditionalists Square Off Before U.S. Supreme Court to Argue Over Fate of World War I Memorial

The American Legion v. The American Humanist Association, No. 17-1717, combined with Maryland-National Capital Park and Planning Commission v. The American Humanist Association, No. 18-18. Oral argument February 27, 2019.


Nearly a century ago the families of soldiers who died in service during World War I collectively funded the creation and display of a forty foot tall concrete Latin Cross bearing the soldiers’ names, engraved words commemorative of honorable service such as “valor.”  The state of Maryland, through its Parks and Planning Commission, assumed titular ownership of the memorial some decades ago in order to support the upkeep of the Peace Cross, as the Bladensburg memorial is known, as it is fragile and may present hazards should parts of the cross crumble.  The Bladensburg Cross is currently installed along a state highway. It is unavoidably visible to drivers and passers-by.

The American Humanist Association and like minded entities complain that the acts of the state’s ownership, placement, and maintenance of the Bladensburg Cross violate the Establishment Clause.  As they are offended by the sight of what is in their perception a religious sculpture installment, the humanists assert that they have suffered injury sufficient to obtain judicial redress.

The United States Court of Appeals for the Fourth Circuit agreed with the humanists.  

Traditionalists — whether religious groups, advocacy groups, or military-related entities, are deeply concerned by the Fourth Circuit’s decision and fear that if the decision is permitted to stand then the fate of all war memorials bearing religious symbols throughout the nation will be in jeopardy.  

In addition to seeking reversal of the federal appellate decision, the traditionalists ask the Supreme Court to dispense with the Establishment Clauses analysis found in Lemon v. Kurtzman,  403 U.S. 602 (1971), as the three part test, proceeding as it does, in their view, from a predominantly secularizing standpoint, has not withstood the test of time. The petitioners ask the Court to return to the meaning of the Establishment Clause as it was envisioned at the founding of the nation, with a view toward custom and practice.

Petitioners ask with equal force that the Court reject the notion of “offended observer” standing, asserting that recognizing emotional reactions to passive public displays fails to articulate the concrete injury required for federal court jurisdiction.

The ordinary observer –offended or not — cannot fail to notice the cultural rifts underlying this dispute.  Humanists, by their own accounts, would enjoy greater peace of mind were they not reminded of religions in their daily encounters with the government, symbolic or real.  The presence of signs and symbols of Christianity — of which the Latin Cross is the defining icon — provokes a sense of exclusion from life in the public square. In light of the emergence of the nation as one embracing many faiths and many cultures, the humanists see no reason for continuing reminders of a religion that ought never be presented as being in control.  

Traditionalists, on the other hand, fear the destruction of  individual and collective memory and the loss of the nation’s history should monuments be razed in the name of the Establishment Clause.  To them, government involvement in the preclusion of religion is as offensive as any government involvement in its establishment.

If the cultural clash did not provide enough with which to grapple, the subtext of the legitimacy of originalism is in play as well, as that is what looking to the intent of the Framers is all about.  Textual analysis is of course a time honored and enduring legal tool, with much to recommend it, but the larger question is whether textual analyses and historical references will suffice to carry the day in disputes arising two centuries after the nation’s founding, subsequent to massive cultural, technical, and political change. Not the least of these changes by any means are changes to the Constitution itself, which, following reconstruction and later amendments, leave the nation’s principal governing document no longer as it originally was.

In addition to the principal parties, there are scholars, religious entities, special interest advocates, policy groups, veterans, states and local governments, and others who have weighed in as amici.  With the abundance of effort that has been expended to present this matter to the Court, one may hope that the Court will recognize that this may not be a case in which incrementalism will be a prudent response.

Links to principal parties’ memoranda as well as a guide to amicus submissions are set forth below.

Merits Briefs

20181217160935389_17-1717 American Legion Brief

20181217164050705_18-18 Maryland National Park and Planning Brief

20190123152713265_37350 pdf AHA Final Brief 1-23-19

20190213163922725_17-1717 American Legion Reply Brief

20190213120308294_18-18 Maryland National Capital Park Reply Brief

Joint Appendix

20181217164536737_Peace JA – Volume I

20181217164544300_Peace JA – Volume II

20181217164556003_Peace JA – Volume III

20181217164614847_Peace-JA-Volume-IV

Summary of Amicus Submissions

2019 02 24 Amicus Submissions AL v AHA 17-1717

 

 

 

 

 

Ordinance Compelling AirBnB and HomeAway to Produce Business Records Each Month Preliminarily Enjoined as Violative of the Fourth Amendment, Southern District of New York Concludes

AirBnB, Inc. v. City of New York, No. 18-7712; HomeAway, Inc.  v. City of New York, No. 18-7742 (S.D.N.Y.) January 3, 2019.


The City of New York has enacted measures requiring online rental booking services to turn over their business records each month, a measure intended to limit the proliferation of short-term rentals.  The services have successfully sought preliminary injunctive relief on Fourth Amendment grounds.

No physical entry on the online booking providers’ premises is involved in the contemplated municipal demand for monthly records.  Nonetheless, the court found, the Fourth Amendment may be implicated without such a physical intrusion. Moreover, the federal court found, that the source of the intrusion lies within a municipal ordinance rather than an agent of the state does not remove the providers’ Fourth Amendment protections.  The critical issue is the intrusion upon the providers’ expectations of privacy.

The court declined to reach the booking services’ argument that the ordinance compelled speech in violation of the First Amendment, as the Fourth Amendment issue was perceived to be sufficient to support issuance of a preliminary injunction.

The case is one of a series of attempts to impose regulations sufficient to dissuade further proliferation of short-term rentals of properties through entities such as AirBnB and HomeAway.  Whether the plaintiffs will prevail in the long run remains to be seen For the moment, however, it is of note that the court was not hesitant in reading the Fourth Amendment generously and in keeping with emerging concepts of telecommunications and online privacy considerations, a position which may work to the betterment of privacy interests online for all.  

Equally of note is the notion of regulatory measures gathering business information as a substitute for zoning or other more traditional property rights enforcement devices.  Where physical boundaries are ceding their predominance to online invisible geography, such laws are worthy of attention, and to some, are cause for concern.

AirBnB v. City of New York (S.D,N,Y, 2019)

Thieves in the Temple: Estate of Prince Rogers Nelson Permitted Limited Expedited Discovery about Bootleggers

Paisley Park Enterprises, Inc. and Comerica Bank & Trust, N.A. as Personal Representatives of the Estate of Prince Rogers Nelson v. Ziani, et al, d/b/a Eye Records, Lovesigne, and House Quake. Case No. 18-cv-2556 (DSD/TNL) (D. Minn.) December 13, 2018.


The federal district court in Minnesota has entered an order permitting the estate of Prince Rogers Nelson to subpoena internet service providers to obtain information about the identities and addresses of members of an enterprise said to be circulating unauthorized recordings of the artist’s music. The estate was found to have satisfied some, but not all, the conditions for permitting pre-Rule 26(f) conference discovery: 1) prima facie evidence of an actionable claim has been shown, as investigation disclosed information about the infringing entity, including allowing plaintiffs to obtain bootlegged material on request; 2) plaintiffs sought specific and limited information about names and addresses of those participating in the bootlegging enterprise, but they have not as yet established that financial institutions and records need be disclosed; 3) plaintiffs have good cause to obtain the addresses of individuals involved in the enterprise, which information is needed for service of process; 4) notwithstanding that the court has reservations about the sufficiency of the Digital Millennium Copyright Act to address some of plaintiffs’ claims, the court has concluded that plaintiffs had not established that they have exhausted available alternatives to pre-conference discovery; 5) potential defendants’ expectations of privacy and to anonymous speech must yield where such speech and anonymity is exercised in furtherance of unlawful copyright infringement; moreover, information provided to an internet service provider enjoys little to no protectable expectation of privacy.

Paisley Park Enters., Inc. v. Ziani (D. Minn., 2018)

Docket Peek-a-Boo Round Two: Reporters’ Committee for Freedom of the Press and Federal Government Submit Supplemental Briefs Addressing Disclosure of Reported Assange Indictment

In Re Application of  Reporters’ Committee for Freedom of the Press to Unseal Criminal Prosecution of Julian Assange,  No. 2:18-cv-00037 (LMB/JFA).


 Julian Assange, Wikileaks founder and ostensible figure of interest in investigations into interference with the 2016 presidential election, was disclosed, by reported inadvertence, as the subject of criminal processes in a November court filing.  The Reporters’ Committee for Freedom of the Press has moved the federal court in the Eastern District of Virginia to unseal the criminal records

At oral argument on November 27, 2018, the government resisted unsealing vociferously, arguing that there is no right to unsealing prior to arrest.  The Reporters’ Committee, by contrast, maintains that the ‘right’ is one of access, either under the constitution or common law, making it the government’s responsibility to demonstrate with specificity any reason requiring sealing court records.  

In recent post-argument supplemental memorandum, the Reporters’ Committee offers that the government’s position that there is a general “pre-arrest” exception to First Amendment and common law rights of access to the courts has no foundation in law or fact.  The government must demonstrate why any claimed exception to open proceedings is justified on an individualized basis. This has not and cannot be done in this case, where Assange has already been identified, where he is doubtlessly aware of the imminence of proceedings, and where, having sought sanctuary in the Ecuadorian embassy in London for years, his location is well known to United States’ authorities, and his opportunities for flight less than optimal.  

It is the type of record, not custodial status, that controls decisions to seal or to unseal, the Reporters’ Committee asserts.  The constitutional and common law presumption of access cannot be overcome by general assertions, particularly where no case exists supporting the ideas that rights of access either do not exist or ought not apply prior to custody.  The government’s July, 2018 disclosures of indictments against Russian intelligence officers, all prior to arrest, flatly contradicts the government’s current position.

Neither can the government’s desire to preserve the integrity of ongoing investigations be supported by generalities, the Reporters’ Committee submits:  the government must present specific information demonstrating that a particular investigation would be harmed by disclosures. Where interest in Assange and Wikileaks has been widely publicly known for some time, there can be no reason to withhold public records.  

Of central importance are the critical  is the First Amendment principles in issue in any government determination to prosecute Assange because of Wikileaks’ publications. A prosecution for publication will affect both the press and the public, making public proceedings all the more significant.

The government in response reiterates that no case can be found in which disclosures (or denials) of a charging instrument was ordered pre-arrest.  It is immaterial whether the document in question is a docket, a charging instrument, a warrant, or an indictment, for it cannot be argued that the rules permitting sealing by a magistrate judge,  promulgated by the United States Supreme Court, can be disregarded absent a determination of fundamental constitutional or Enabling Act error.

That some documents are unsealed before arrest does not mean all should be, the government asserts, particularly where deference is due the court which made the determination to withhold.  The determination to seal should be respected absent a showing of prejudice or harm to the public interest. There are cases that uphold the adequacy of rights to challenge sealing orders occurring after public disclosure of indictments or the execution of (definitionally) ex parte search warrants.  

Neither does the press’ surmise about who the subject of any court filing may be compel the government to confirm or deny the validity of the press’ guess. There is no government compulsion to disclose whether an individual is not charged or charged under seal.

It is not known how long the court will take to rule.   

Assange – Reporters’ Committee Supplemental Memo of Points and Authorities

Assange – Government’s Response to Reporters’ Committee Supplemental Memorandum

 

The Right to Petition Does Not Prohibit State Requirement that Unpaid Volunteer Activist Register as a Lobbyist, According to Eighth Circuit

Calzone v. Summers, No 17-2654 (8th Cir.) November 28, 2018.


Petitioner Calzone sought to meet with and to persuade legislators of the need to put “Missouri First,” which was the self-styled name of his organization. While noting that some of Calzone’s arguments may not have been properly raised or preserved, the Eighth Circuit has concluded that Calzone, although operating on his own as an unpaid volunteer, must comply with the state’s lobbyist registration requirements. A singular dissent expresses concerns that the majority’s ruling seems to read petitionary rights out of existence.

Calzone v. Summers (8th Cir., 2018)

Construction Commentary Deconstructed: Online Review of Remodeling of Public Interest within Anti-Slapp Law, California Court of Appeals Holds

Noli Construction v. McClendon, No. D072531 (4th Cal. App.) November 29, 2018. Unpublished.


Online accounts of consumer dissatisfaction may be matters of public interest. Even though the housing project here was individualized, consumer information about such matters enhances public knowledge and therefore is within the protections of the anti-SLAPP law. Moreover, it does not matter if the consumer’s statements were fact or opinion: the issue is whether the statements are demonstrably false. 

Noli Constr. v. McClendon (Cal. App., 2018)

Not Entirely Open and Shut: Reporters Committee for Freedom of the Press Seeks an Order Unsealing Documents Relating to Wikileaks Founder Julian Assange

In re the Application of Reporters Committee for Freedom of the Press to Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-00037-LMB-JFA (E.D. Va._  Hearing on Motion on November 27, 2018.


Just days ago the media reported that Wikileaks founder Julian Assange was the subject of a federal indictment stemming from Special Counsel Robert Mueller’s investigation into Russian interference in the U.S. 2016 presidential election.

The grand jury proceedings leading to the charge, as well as the charge itself, were intended to remain under seal with the court.   The Department of Justice offered that the disclosure was inadvertent, a failure in proofreading.

Nothing piques the curiosity so much as a government gaffe of this magnitude.  A leak about a leaker, inadvertent or, one might speculate, perhaps not, cannot help but excite public interest, particularly where, as here, years have passed and the special counsel proceedings have borne little prosecutorial fruit and even less public disclosure. Add to this the somewhat exotic nature of Assange’s years-long exile in the sanctuary of the Ecuadorian Embassy in London, and the mix is as potent as those fond of intrigue might hope.  

As guardian of and advocate for the right of access to the courts, both under the Federal Constitution and at common law, the Reporters Committee for Freedom of the Press has moved the U.S. District Court for the Eastern District of Virginia to unseal all the records purportedly relating to Assange.  

In its opposing memorandum and at argument on the Reporters Committee motion today, the United States vigorously objected to the request for unsealing, particularly where the government states it has no obligation to confirm or deny the existence of a charge at all at this point, notwithstanding the erroneous disclosure.  

The government has argued that where there has not yet been an arrest, even if there has been an inadvertent disclosure of a name, the court has no obligation to, and should not, open its records.  To announce publicly the pendency of proceedings would serve no policy of public access, the government has suggested. To the contrary, disclosure prior to arrest would confer an unwarranted benefit on a defendant, enabling him or her to order personal affairs and repair to a location well beyond the powers of the court.

The court has taken the matter under advisement.

The parties’ memoranda of law:

2018 11 16 Reporters Committee Memorandum Supporting Unsealing

2018 11 26 Government’s Opposition to Application to Unseal

 

 

 

But, Officer! Was It Something I Said? Supreme Court to Consider Whether Claim of Retaliatory Arrest for Protected Speech Must Demonstrate the Absence of Probable Cause

Nieves, et al. v. Bartlett, No. 17-1174 (S. Ct.). Oral argument scheduled for November 26, 2018.


Amicable encounters between the public and the police are the exception rather than the rule, if the explosive, and sometimes deadly, media reports reflect the current cultural reality. Individuals or groups arrested not infrequently believe that the law enforcement intervened not because of criminal activity but because of protected activity. Suits such as that in Nieves ensue when an arrestee asserts that arrest resulted from speech or expressive activity disfavored by the arresting officer.

Police officers enjoy qualified immunity from suit for conduct in connection with their official duties absent violation of known constitutional rights. Thus claims against the police are, rightly or wrongly, not easily won, but recognition of a right to be free from retaliatory arrest, without the necessity of proving any arrest was without probable cause, would provide one more arrow in the quiver of those seeking redress for violations of constitutional rights under 42 U.S.C. Section 1983.

The Ninth Circuit, where this case originated, is alone among federal courts in holding that a retaliatory arrest claimant need not prove that there was no probable cause for arrest. Given that in other circuits the presence of probable cause will foreclose actions against officers for retaliatory arrest, Nieves presents an opportunity for the Court to weigh in on a position generating no small amount of controversy.

The concerns of all involved are well founded. Police do not want to face time and career consuming litigation. The public does not want to be afraid to speak in the presence of the police or to dispute the police without recourse.

Much more is in issue than a fracas and an arrest at a lively sporting and drinking event in Alaska. Outstanding amicus submissions have grounded the case for and against permitting actions without proof of probable cause in both history and practice.

Principal Parties Merits’ Briefs

Brief of Petitioners Nieves v. Bartlett 17-1174

Brief of Respondent Nieves v. Bartlett 17-1174

Reply Brief of Petitioners Nieves v. Bartlett 17-1174

Amicus Submissions

Amicus Constitutional Accountability Center Nieves v. Bartlett 17-1174

Amicus District of Columbia and Several States Nieves v. Bartlett 17-1174

Amicus First Amendment Foundation Nieves v. Bartlett 17-1174

Amicus Institute for Free Speech Nieves v. Bartlett 17-1174

Amicus Institute for Justice Nieves v. Bartlett 17-1174

Amicus National Police Accountability Project Nieves v. Bartlett 17-1174

Amicus National Press Photographers and Media Nieves v. Bartlett 17-1174

Amicus Rutherford Institute Nieves v. Bartlett 17-1174

Amicus Three Individual Activities Nieves v. Bartlett 17-1174

Amicus United States Nieves v. Bartlett 17-1174

 

 

Not All the Same to Meme: Trademark Holder Succeeds in Reversing Summary Judgment Where Unauthorized Use of Protected Catchphrase in Greeting Cards Could Cause Customer Confusion

Gordon v. Drape Creative and Papyrus Recycled Greetings, No. 16-56715 (9th Cir.) November 20, 2018.


Analysis of trademark infringement claims requires balancing of two competing principles, the Ninth Circuit observes. Trademark infringement cannot be so vigorously asserted as to suppress artistic expression. At the same time, trademark protections cannot be so lax as to cause the public to become confused as to the source of a product offered for sale.

Plaintiff Gordon had some success in video and comedy and in subsequent licensing of the catchphrase “Honey Badger Don’t Care.” With knowledge of plaintiff’s interest, defendants adopted the phrase for their own greeting card products. Notwithstanding that the parties had made use of the catchphrase in different media, the panel concluded that it could not be said that the similarity of design and use would not cause customer confusion as to the origin of a product employing the phrase. In such circumstances, summary judgment for defendants must be reversed.

Gordon v. Drape Creative, Inc. (9th Cir., 2018)

Michigan Judge Finds Federal Criminal Legislation Prohibiting Female Genital Mutilation Unconstitutional

United States v. Nagarwala, No. 17-CR-20274 (E.D. Mich.) November 20, 2018.


The federal court has dismissed criminal charges against physicians said to be practicing female genital manipulation. Defendants had been indicted for violation of a federal statute intended to protect adolescent girls from these practices. The district court found error in the federal use of authority in what it perceived to be a matter for state law. The “necessary and proper” clause of the United States Constitution is not an independent grant of power, the court observed. Any power Congress might have respecting effectuating international treaties ensuring equal civil and political rights does not reach the genital mutilation considered by the federal statute, nor does the practice have any relationship to interstate activity, such that criminal sanctions might be justified under the Commerce Clause.

United States v. Nagarwala (E.D. Mich., 2018)

Nothing Sacred: First Amendment Prohibition of Judicial Involvement in Ecclesial Determinations No Bar to Suit for Negligent Supervision of Seminarian

Bourque v. Roman Catholic Diocese of Charlotte, N.C., et al., No. CO17-1054 (N.C. App.) November 20, 2018.


Defendants sought interlocutory review on jurisdictional grounds of denial of their motion to dismiss on First Amendment grounds. Defendants argued that the First Amendment forbids judicial interpretation of theology or of any matters in which religion is inextricably bound up in church decision making.

While recognizing these principles, the court concluded that whether church officials were negligent in supervision of the seminarian, who is alleged to have abused Bourque sexually, is a civil matter which can be adjudicated without undue interference with religious beliefs or practices. The court affirmed denial of the motion to dismiss.

Bourque v. Roman Catholic Diocese Charlotte (N.C. App., 2018)

The Online Public Square: Website’s Publication of Allegations of Cult Activities Falls Within Anti-SLAPP Statute Protections, California Appellate Court Holds

Guen v. Pereira, et al., No. A151569 (Cal. App.) Unpublished opinion of the First California Appellate District, Division Five, November 16, 2018.


Defendant Pereira and others created an online website which accused acupuncturist Guen of inappropriate sexual behavior and of operating a cult. Commentary and rebuttal were not permitted on the website. Defendants succeeded in obtaining dismissal of Guen’s claims under the anti-SLAPP law, as their online statements provided consumer information in a public forum notwithstanding the absence of opportunity for rebuttal.

Guen v. Pereira (Cal. App., 2018)

Privacy Interests No Shield Against Copyright Infringement Claims

Malibu Media v. Doe, No. 18cv5611 (S.D.N.Y.) November 16, 2018.


Malibu Media was able to make a preliminary determination that the holder of a particular Internet Protocol address had accessed and downloaded its copyrighted work through the BitTorrent file sharing program. Geolocation information situated the IP address h  older within the court’s jurisdiction. Malibu Media sought and obtained a subpoena to Internet Service Provider Time Warner, seeking disclosure of John Doe’s name and address. Notice was provided to Doe, who moved to quash on undefined privilege grounds. The court rejected this argument, holding that although the U.S. Supreme Court has recognized a right to anonymous speech, such protections do not attach to unlawful copyright infringement.

Malibu Media, LLC v. Doe (S.D. N.Y., 2018)

Online Offensive Speech Not Presenting Actual Imminent Threat Cannot be Restrained, New York Court of Appeals Concludes

Brummer v. Wey, No. 153583/15 (N.Y. App.) November 15, 2018.


Plaintiff participated in an adjudication before the Financial Industry Regulatory Association (FINRA) in which defendants were forever prohibited from practice as broker-dealers. Defendants posted online derogatory statements and images, including allusions to lynching, about plaintiff, an African American.

Plaintiff obtained a temporary restraining order and preliminary injunction of the postings, including orders to remove postings, which the present order dissolves.

As distasteful as the material may be, and without regard to whether the plaintiff will prevail on a libel claims, the court could not perceive an actual threat to plaintiff, nor could it find grounds to support the prior restraint of speech that the injunction presented.

Brummer v. Wey , 2018 NY Slip Op 7843 (N.Y. App. Div., 2018)

Private Rights, Public Trials: Accused Virginia Polytechnic Institute Student May Proceed Anonymously in Civil Suit

Doe v. Virginia Polytechnic Institute and State University, No. 7:18-CV-320 (W.D. Va.) November 13, 2018.



Doe was expelled after having been found to have been in violation of campus alcohol and sex policies, Doe commenced suit in federal court against the school and its officials for deprivation of federal and state due process rights, under Title IX, and for negligence and breach of contract. The trial court has permitted Doe to proceed anonymously following a five part inquiry into factors intended to examine the balance between potential harm to Doe from failure to allow proceeding anonymously versus failure to proceed in accordance with public trial g  uarantees. The court   agreed with Doe that the request was not one made merely to avoid criticism, that the risks of retaliation against Doe and his accuser were high, that notwithstanding legal adulthood Doe may remain immature, that the government will suffer no harm by granting the request, and that there is no risk of harm to defendants from allowing anonymous proceedings because all involved were aware of true identities and would not be hampered in preparing for trial. Although the court found that the claims against individual defendants weighed against proceeding anonymously, taken together the court was persuaded that Doe’s privacy interests were sufficient to overcome the presumption of public trial proceedings.

Doe v. Va. Polytechnic Inst. & State Univ. (W.D. Va., 2018)

No Rubber Stamp Comity in Attorney Discipline: Fourth Circuit Vacates Unexplained Order Adding Federal Reciprocity to State Reprimand

In re Dyer, No. 18-1645 (4th Cir.) November 9, 2018.


Attorney Dyer was reprimanded for failing to provide information to a state disciplinary body relating to a grievance filed against him. Dyer asserted that Maryland’s confidential grievance proceedings violate First Amendment free speech protections. Dyer made the same assertion of unconstitutionality to a federal show cause order concerning reciprocal discipline, which argument he reiterated on appeal to the Fourth Circuit. Without commenting on the merits of Dyer’s First Amendment claim, the Fourth Circuit vacated the district court order, noting that the order failed to disclose the basis on which it was entered.

In re Dyer (4th Cir., 2018)

Nomen Est Omen for Strike 3 Holdings, LLC: D.C. Federal Court Decries Use of Federal Courts to Extort Pornography Pirates, Denies Subpoena to Internet Service Provider to Obtain Defendant’s Identity, and Dismisses Suit

Strike 3 Holdings, LLC v. John Doe, subscriber assigned IP address 73.180.154.14, No. 18-1425 (D. D.C.) November 16, 2018.


Pornography may be protected by copyright, and when online consumers unlawfully share materials with others, litigation ensues.  As initially online infringers may only be identified by internet protocol addresses, plaintiffs such as Strike 3 often seek pre-discovery conference subpoenas to internet service providers to obtain names of defendants.  The potential defendants are often granted permission to move to quash anonymously.

Infringement cases are dismissed if no one is identified, but if someone is identified, settlement is much to be preferred than having one’s name crop up in connection with the infringed product on internet searches.

These procedures permit plaintiffs to assert their rights and defendants to retain their privacy, yet a federal judge in the District of Columbia has just put the kibosh on fuzzy identification and on flooding the court’s dockets with hundreds of claims.   

More than a suggestion that unmasking a particular internet address will lead to discovery of a defendant amenable to suit must be shown for a pre-discovery subpoena to issue, the court has held.  The court could not find that plaintiff had provided any facts or persuasive argument that would merit encroachment on the potential defendant’s privacy rights.

The court noted that it remains open to requests for subpoenas where sufficient specificity can be shown.  

Strike 3 Holdings, LLC v. Doe (D. D.C., 2018)

 

Federal Court Enjoins Ordinance Regulating Speech About Sexual Orientation Change in the Therapeutic Setting

Vazzo, et al. v. Tampa, No.  8:17-cv-02AAS (M.D. Fla.) January 30, 2019.

A clerk magistrate for the United States District Court for the Middle District of Florida has entered an order enjoining the enforcement of a Tampa ordinance prohibiting therapists from discussing with adolescent clients Sexual Orientation Change Efforts (SOCE). The court left intact the portions of the ordinance precluding non-talk SOCE interventions.

Plaintiffs are therapists and a Christian ministry that serves as a referral source for SOCE counseling, which is intended to reorient minors away from same sex attractions.  Plaintiffs argued that the ordinance unconstitutionally constraints speech content and viewpoint, that it operates as a prior restraint of speech, and that it is vague and overbroad.

A Compelling Interest Not Narrowly Addressed. The magistrate observed that the regulation of professional speech is speech regulation, and not the regulation of conduct, as one court determined.  The government has a compelling interest in ensuring and promoting the mental health and safety of minors. Tampa failed, however, to provide any evidence that less restrictive means to support that interest had been considered, making it impossible to meet the strict scrutiny standard applicable to content based speech restrictions.  Impermissible viewpoint restriction was found where the ordinance regulates only speech concerning a particular form of therapy with a particular goal.

A Vague and Overbroad Prior Restraint. Moreover, as the ordinance prohibits speech before it is uttered, it operates as an unconstitutional prior restraint.  The breadth of discussion expressly or implicitly embraced within the ordinance leaves the average therapist in doubt about what is prohibited and at the same time invites discriminatory enforcement, making the ordinance overbroad and vague.

Irreparable Harm to Plaintiffs But No Concomitant Harm to Tampa. Having found plaintiffs had established a likelihood of success on the merits of the First Amendment claims, the magistrate also found that other standards for issuance of a preliminary injunction were met.  The delays inherent in being unable to speak until the conclusion of litigation presented irreparable harm. The city, by contrast, has an interest in not enforcing unconstitutional laws and no harm could be shown to flow from enjoining the portions of the ordinance precluding discussion of SOCE.

Further Developments Should Be Watched.  Claims surrounding the limits of speech regulations and the intervention of the state in the provision of health care are unlikely to abate. It may be wise to ask whether, if informed consent is the foundation upon which competent care may be had, speech restrictions are appropriate under all but the most narrow circumstances.  The consultation room remains, for all its secular trappings, something of a sacred space in which that which needs saying ought to be said without fear by either patient or provider. While it is always desirable to define and to support professional standards of care, doing so by speech regulation may not be the modality of choice.  

Vazzo v. Tampa MD Fla.20190130

Banishment from Public Officials’ Twitter Accounts May Violate the First Amendment, Federal Court in Wisconsin Concludes

One Wisconsin Now v. Kremer, Nygen and Vos, No. 17-cv-0820-WMC (D. Wis.) January 18, 2019.


OWN — One Wisconsin Now — an advocacy group blocked from the Twitter feeds of elected state legislators, has asserted injury to its First Amendment interests in federal court. The United States District Court for the Western District of Wisconsin has agreed, granting summary judgment in favor of OWN, and inviting subsequent briefing on appropriate remedies.

All parties have Twitter accounts intended to communicate or comment on political news and views. The legislators blocked OWN for various reasons, including a desire to curtail spamming or perceived off topic or unprofessional views. While all the legislators have blocked OWN, none has an official policy or protocol about blocking accounts and none has a clear recollection of why OWN was blocked.

Once blocked, OWN was unable to participate in the blocking account holders’ Twitter activities.

The federal court noted that the question whether a public official’s social media account is a designated public forum is a topic of emerging law. Two federal district courts and one federal appellate court have found similar social media to have the characteristics of public forum, and the United States Supreme Court have noted that the vast forum provided by social media is analogous to traditional public forums, such as parks.

Where elected officials opened their accounts in their official capacity, they acted under color of state law. The interactive nature of Twitter accounts makes them designated public forums. The officials engaged in content based discrimination when they blocked OWN from their accounts.

Citizens retain some speech rights on government property, including property not traditionally used for public discourse but opened by the government for such purposes. The interactive features of Twitter invite discourse, causing Twitter to bear the hallmarks of designated public forums. Defendants cannot deny having created a public forum on Twitter by denying an intention to do so, the observed. Had they wished not to do so, they could have posted a closed blog or used other medium that would prevent commentary.

The court found defendant’s comments about Twitter’s status as a private company and defendants’ engagement in government speech unpersuasive. Public forums may exist on public or private property. And even if the elected officials’ speech was government speech, by virtue of the interactive nature of the Twitter accounts, not all of it can be government speech, particularly where various voices are easily distinguished.

Once the government creates a designated public forum it must meet the same standards as traditional public forums. Content based restrictions — such as forbidding any and all comments by OWN — are prohibited by the First Amendment unless restrictions (other than reasonable time place and manner measures) are narrowly tailored to serve a compelling government interest.

The wholesale exclusion of OWN based on prior speech or identity or disapproval of OWNER’s perspective has not been shown to advance a compelling government interest. No compelling interest at all has been offered by defendants, only vague innuendo, with reliance on the notion of government speech protections extending to the Twitter account as a whole.

The court stated that in granting summary judgment for OWN, it is inclined to find OWN’s request for injunctive relief unblocking it from the accounts to be reasonable, but has directed the parties to submit by the end of January any comments on measures recommended for non-First Amendment related relief.

One Wisconsin Now v. Kremer, et al. (W.D. Wis., 2019)

Publisher Challenges Speech Restrictions in Author’s Settlement Agreement with Securities and Exchange Commission

The Cato Institute v. United States Securities and Exchange Commission, No. 1:19-cv-0047 (ABJ).  Complaint filed January 9, 2019.


The Cato Institute (CATO) wants to publish a manuscript detailing the Securities and Exchange Commission’s (SEC) litigation tactics.  The manuscript’s author entered into a settlement agreement prohibiting discussion of the case against the author in perpetuity. CATO asserts injury to its First Amendment interests.  

The SEC’s inclusion of post-settlement non-disclosure provisions in its settlement agreements is grounded in a regulation designed to inhibit agreement to claims solely for purposes of settlement.  Although the stated purpose of the regulation is to discourage admissions of wrongdoing where the party charged does not believe them to be true, this measure has been interpreted to allow the government to require that the party accused not discuss the case subsequent to settlement.

CATO was not a party to the author’s settlement with the SEC and the author is not a party to CATO’s suit.  CATO alleges injury in fact because the settlement agreement acts as an unconstitutional restraint of CATO’s speech and press freedoms.  The settlement agreement provisions are unconstitutional conditions requiring a party to forfeit a constitutionally guaranteed right in order to obtain settlement.  No government purpose is advanced by unending and overbroad speech restrictions, CATO submits.

CATO’s suit comes at a time when non-disclosure arrangements appear to be honored more in the breach than in the observance.  While there are many forms of such agreements, and much may depend on whether agreements are between private parties or with government entities, this challenge to the alleged heavy hand of federal regulatory power may prove interesting provided, however, that CATO, a stranger to the agreement with the SEC, is successful in establishing Article III standing.

Cato v. SEC Complaint D. D.C. Jan. 9, 2019

 

(Anti)-SLAPPed Around: Online Reviews Are Both Constitutionally Protected and Susceptible of Statutory Resolution, Oregon Appellate Court Observes

Neumann v. Liles, No. 601 A149982, 295 Or. App. 340 (December 12, 2018).



Neumann sued Liles for defamation following a critical online review of Neumann’s wedding venue. Several rounds of litigation up and down the trial and appellate court ladders resulted in the conclusion that the online posting of a review is constitutionally protected speech rather than actionable defamation, as a reasonable reader would not form the impression that the review poster was presenting objective facts. In the most recent decision, the appellate court concluded that online reviews do involve matters of public concern, and thus may be addressed through the summary procedures permitted under the state’s anti-SLAPP law.

Neumann v. Liles, 295 Or App 340 (Or. App., 2018)

Pass-Fail at the Electoral College: Massachusetts’ Winner-Take-All Electoral Vote Allocation Does Not Violate First Amendment Rights of Association, Federal District Court Concludes

Lyman v. Baker, No. 18-10327 (PBS) (D. Mass.) December 7, 2018.


Massachusetts’ electoral vote allocation process is grounded in a winner-take-all system that neither violates ‘one-man, one-vote’ principles nor does it create infringement upon First Amendment rights of association that partisan gerrymandering may invite. Those who lose electoral votes have simply lost. Without more, and in view of the court’s perception that it lacks power to redress even a cogent claim, the case has been dismissed.

Lyman v. Baker (D. Mass., 2018)