Not Who, But What: Supreme Court of Minnesota Shifts Qualified Privilege in Defamation from Speaker to Spoken, Concluding that Commentary on Matters of Public Interest May Enjoy a Qualified Privilege No Matter Who the Speaker Is

Maethner v. Someplace Safe, Inc., No. A17-0998 (Minn. Sup. Ct.)  June 26, 2019.


Plaintiff’s ex-wife and a local domestic violence non-profit included plaintiff’s name, which the ex-wife retained, in online news of her award for involvement in domestic violence advocacy.  Plaintiff was not referenced directly, but lived in an area of close social connections and a relatively small population.

Plaintiff sued both the non-profit and his ex-wife for defamation.  The Supreme Court of Minnesota concluded that damages for emotional harm, standing alone, are not recoverable in defamation because proof of injury to reputation is required.

Recovery for defamation per se cannot be had where First Amendment protections are involved.

The law of defamation provides a qualified privilege to media defendants who may publish without fear unless plaintiff demonstrates actual malice.

Private parties traditionally enjoy no such privilege.

In this case, though, the Minnesota Supreme Court determined that  a distinction between media and private parties ought not remain the core focus of defamation analysis.  The key issue in cases of presumed damages is not the status of the parties but whether the challenged speech concerns matters of public concern.

The court outlined the method of analysis.  Presumed damages may be available if the speech challenged as defamatory per se is not about matters of public concern.  Unless a plaintiff can show actual harm to reputation or actual malice, there can be no recovery for defamation per se for matters not of public concern.

The decision is significant in that it places media and non-media defendants on the same footing for purposes of defamation per se, and offers both some protection where non-malicious statements about matters of public concern are in issue.

The Minnesota Supreme Court declined to impose on the non-profit any duty to investigate plaintiff’s ex-wife’s assertions of domestic violence.  The court rejected the notion that no duty in negligence could ever attach.  Rather, conduct must be evaluated in accordance with what a reasonable person would do in similar circumstances.

The court concluded that the non-profit did not breach any duty to investigate.  The non-profit was not unreasonable in basing its views on its interactions with plaintiff’s ex-wife in the absence of evidence indicating that there was any reason to question her credibility or honesty.

Although custom within the publishing profession may be relevant, custom does not control, because plaintiff offered no proof that a reasonable person would investigate or that non-profit advocates customarily investigate claims of their service recipients.

One justice disagreed with the court’s conclusion that no duty to investigate attached on these facts.  While a qualified privilege may attach to professional discussions such as employee references, credit assessments, or medical evaluations, publication about plaintiff’s ex-wife’s status as a survivor of domestic violence enjoys no such privilege.

Adherence or not to custom or practice is not to be conclusively presumed to constitute “due care,” the dissent noted.

While the dissent acknowledged the concerns  — such as the absence of corroboration in many domestic violence cases — that prompted the non-profit to credit plaintiff’s ex-wife’s assertions, the dissent found equally compelling the principle that plaintiff be afforded a fair hearing.  The court here would impose on plaintiff a duty to show that the party whose statement was believed was not credible, a position which the dissent felt deflects from the core issue of whether investigation needed to be conducted.  Where questions about the non-profit’s conduct exist, judgment as a matter of law was not proper.

While many will be pleased by the leveling of status between media and non-media defendants, much more will likely be in issue in the future concerning whether any duty to investigate exists before a non-media defendant publishes information.

Maethner v. Someplace Safe, Inc. (Minn., 2019)

 

 

 

 

 

 

 

Unprotected: Pennsylvania Superior Court Affirms Sentence for “Lewd” Facebook Posts

Commonwealth v. D’Adderio, J-A06041-19, No. 833 MDA 2018 (Sup. Ct. Pa.)


Kelly Marie D’Adderio was not pleased with an ex-friend’s marriage to her ex-husband.  She posted her views on Facebook for the world to see.  Her posts contained graphic language and expressed pleasure that her ex-husband had cheated on her ex-friend, and made allegations about drug use at her ex-friend’s house, where D’Addario’s children stay.

Ex-friend Maria Memmi’s stepchildren showed her the posts.  Memmi had no Facebook account of her own.  She sought police intervention.

The police were unable to persuade D’Adderio to take down her posts, and more posts ensued.

The state filed a criminal complaint against D’Adderio in June, 2016 and a criminal information charging harassment ensued in March, 2017.

D’Adderio moved unsuccessfully to dismiss the criminal charges, asserting that “lewd” or “lascivious” speech enjoys First Amendment protection.

A jury convicted D’Adderio of harassment.  She was sentenced to a year’s probation, 100 hours of community service not contact with a minor child reference in the posts, and fines and costs.

On notice of appeal, the trial court opined that there existed sufficient evidence to find that appellant posted lewd messages with no communicate purpose with an intent to harass, and opined that the harassment statute is not overbroad.

On appeal, the Superior Court framed the questions for consideration:  1) whether non-obscene but lewd and lascivious speech about but not to another is protected under the federal and state constitutions, and 2) whether the harassment statute is overbroad.

The court observed that the statute prohibits conduct which is not constitutionally protected and which is intended to alarm or annoy.  Lewd language is not synonymous with obscenity, and the issue of whether the speech was to or about Memmi is of no moment, the court concluded.

The U.S. Supreme Court has concluded that epithets and personal abuse fall outside constitutional protection.

D’Adderio’s commentary did not express social beliefs or constitute legitimate comment.

Because the statute in issue requires an intent to harass, it does not capture protected speech in its ambit, and is not, therefore, overly broad, for it does not criminalize legitimately communicative speech.

Commonwealth v. D’Adderio (Pa. Super. Ct., 2019)

Beyond Geographic Boundaries: Locus of Online Activity for Jurisdictional Purposes Challenged in Case Asserting Ex Parte Restraining Order Violated Section 230 and the First Amendment

Narcisi v. Turtleboy Digital Marketing, LLC,No. 2019-08-0329-JJM-PAS (D. R.I.)


An online kerfuflle erupted when Aidan Kearney, owner of Worcester Digital Marketing, formerly Turtleboy Digital Marketing, posted material critical of Narcisi, a Rhode Island resident and website operator.

Narcisi sued for defamation in Rhode Island state court, claiming that Turtleboy defamed plaintiff and plaintiff’s business interests.  Narcisi claimed that following postings on Turtleboy’s site, Narcisi received unwanted commentary and messages from Turtleboy’s followers.

Narcisis sought and obtained an ex parte order forbidding contact and requiring take down of existing posts.

On May 16, 2019, apparently without notice to Turtleboy, the Rhode Island Superior Court in Washington County entered a restraining order enjoining Turtleboy from, inter alia, contacting, cyberbullying, or otherwise interfering with Narcisi.  The order demanded that Turtleboy remove any posts about Narcisi.

Kearney states that defective service was made concerning a late May hearing.  On appearing to oppose continuance of the restraining order, the judge advised he could not speak for his company.

Further hearing was scheduled for June 19th.  Counsel for Kearney removed the case to federal court and has moved to dismiss for lack of personal jurisdiction.

Kearney/Turtleboy’s success in garnering the attention of the American Civil Liberties Union promises a vigorous First Amendment challenge should the issues of unconstitutional prior restraints and Section 230 immunities be reached.

That the speech and responsibility issues may not be reached may only make the case more interesting, for Kearney/Turtleboy essentially challenges the “presence” of internet postings for jurisdictional purposes.

Kearney/Turtlboy asserts that there exist no contacts with plaintiff or plaintiff’s business or the State of Rhode Island that would support personal jurisdiction.

The core issue is whether internet posting, which have no physical presence in the traditional three dimensional sense, are sufficient to constitute contacts for purpose of asserting personal jurisdiction.

Some courts have said no.

Plaintiff has yet to respond to the motion to dismiss.

Time will tell.

2019 06 24 Motion to Dismiss USDC D. R.I.

2019 06 24 Memorandum of Law re Dismissal USDC D. R.I.

2019 06 21 Kearney Declaration USDC D. R.I.

2019 05 16 State TRO

2019 05 13 State Complaint

 

 

 

 

This !!!##@@!!!## Mark is Your !!!##@@!!!## Mark: Lanham Act’s Prohibition of Registration of “Immoral” or “Scandalous” Marks Fails First Amendment Analysis

Iancu, Undersecretary of Commerce for Intellectual Property, et al. v. Brunetti, No. 18-302.  June 24, 2019.


The Supreme Court has held to be invalid as constitutionally impermissible viewpoint discrimination that portion of the Lanham Act, 15 U.S.C. Section 1052(a) that prohibits registration of “immoral” or “scandalous” trademarks.  The decision echoes the Court’s two term old determination in Matal v. Tam, 582 U.S.      (2017) that found constitutionally defective that portion of Section 1052(a) of the Lanham Act that prohibited registration of “disparaging” trademarks. 

The Court’s determination in Brunetti, which concerns a mark that resembles a common vulgarity with sexual connotations, was not surprising. What may to some be refreshing is that some of the justices seem ill at ease with the practice of analyzing First Amendment claims using outcome determinative classifications and rules and would favor a move toward looking at cases on the basis of which First Amendment principles would be served — or not — by review.  

Writing for the Court, Justice Kagan reiterated in this week’s opinion its core view that the government may not “discriminate against speech based on the ideas or opinions it conveys.” (Slip op.4).  The Court was unable to consider the terms “immoral” or “scandalous” to be other than value and meanings based and selective of ideas and therefore not susceptible of a saving viewpoint neutral construction. 

The Court rejected the government’s suggestion that the government would read the words “immoral” and “scandalous” jointly and only refuse to register marks that a majority of society would find to be objectionable  To do so would not address the statute as it is written but instead would construct a new statute according to the government’s wishes.  

Having found the statute to improperly consider the suppression of views, the Court observed that it is no answer to suggest that the statute could be construed to suppress only some views, for this is precisely the ill that the prohibitions on viewpoint discrimination are intended to remedy.

Justice Alito wrote separately in concurrence, noting the importance of the avoidance of viewpoint discrimination as a “poison to a free society,” and which is particularly problematic now, when free speech is under attack.  The susceptibility of the words “immoral” or “scandalous” to exploitation for illegitimate ends compels the Court’s conclusion in this case but does not prohibit Congress from fashioning new legislation.

Chief Justice Roberts concurred in part with the majority that the word “immoral” is not susceptible of a limiting neutral construction but suggests that the word “scandalous” may be.  Agreeing with dissenting Justice Sotomayor, the Chief Justices saw no reason to “give aid and comfort to those using obscene, vulgar and profane modes of expression.”  

Justice Breyer concurred in part and dissenting in part and agreed with Justice Sotomajor that a narrowing and constitutionally saving construction of the word “scandalous” could be acceptable.  This would permit prohibition of registration of only highly vulgar or obscene expression.

Justice Breyer observed that categorical analyses of speech ill serve First Amendment analyses.  The central and crucial question is whether any measure serves or deserves the values the First Amendment is intended to protect.  Not only are rules insufficient to be outcome-determinative, and ought to be mere guidance, but the court here has also not addressed the primary criteria for selecting among extant rules by determining whether the trademark statute concerns commercial speech or government speech.  

Justice Breyer agreed with Justice Sotomayor that elucidation of the distinction between content based discrimination and viewpoint based discrimination s not easily accomplished.  Justice Breyer would not find harm in prohibiting registration of highly vulgar or obscene words. Justice Breyer could not see how limiting registration of these emotionally provocative expressions constitutes “viewpoint discrimination.”

Moreover, it is difficult to avoid perceiving that any limitation on registration is content based.  The critical question in any First Amendment analysis, in Justice Breyer’s view, is whether any regulation causes harm to First Amendment interests that is disproportionate to any regulatory objective.  

Under such analysis very little harm to First Amendment interests would be worked by precluding registration of “highly vulgar or obscene” trademarks, particularly as merchants may use such marks without registration.

In dissent, Justice Sotomayor offered that the Court’s conclusions in this case will prohibit denial of registration of the most vulgar, profane and obscene remarks.  

Contrary to the majority, Justice Sotomayor perceives that the word “scandalous” may be interpreted to mean that expression which is shocking to a sense of decency.  

The distinction between content based discrimination and its most odious manifestation, viewpoint based discrimination, is not easy and it is clear that not every restriction on modes of expression is viewpoint based.  Lighting fires in the public square, uttering fighting words and other expressions are categorically excluded from First Amendment protection. These actions and utterances obtain their status because they are intolerable modes of expression: this is true no matter what the content or point of view advanced may be. These modes of expression cannot be tolerated no matter the idea.  As such, restricting registration of obscene or vulgar remarks is content based but viewpoint neutral and so the Court’s precedents have concluded.

Finally, it is not necessary to submit any and all content discrimination — even that which is viewpoint neutral — to strict scrutiny.  But when strict scrutiny does not apply, viewpoint based versus viewpoint neutral considerations may be outcome-determinative.  

Trademark registration is a commercial benefit which facilitates but is not necessary to trademark enforcement.  Once provided it cannot be administered in a viewpoint discriminatory manner. Trademark protections exist without government registration but their recognition and enforcement may be enhanced by registration. The government need not operate a trademark system but when it does it is permissible to permit some restrictions, particularly where their imposition may help some but not hurt others.

Even If the public does not associate trademarks with the federal government, the government’s involvement with registration does involve promoting particular marks, concerning some of which the government would decline association. The government has a reasonable interest in refraining from “lending its support to marks that are obscene, vulgar or profane.’” Prohibiting registration of such marks is reasonable, viewpoint-neutral, content based regulation and the narrowing construction of “scandalous” offered here would save the statute and inhibit a rush to registration of offensive materials.

The First Amendment guards the use of the words in issue here. This does not mean, Justice Sotomayor observed, that the government needs to support their use. 

Justice Sotomayor stressed that the instant case is a facial challenge.  The saving construction proffered would not be overly broad. Justice Sotomayor cautioned that if the statute were saved by a narrowing construction, the courts ought nonetheless take seriously viewpoint concerns raised in as-applied challenges.

Iancu v. Brunetti , U.S. Supreme Court, June 24, 2019

Tradition! World War I Memorial Cross on Public Land Not a Violation of the Establishment Clause, Supreme Court Concludes

American Legion, et al. v. American Humanist Ass’n, et al, No. 17-1717; Maryland National Capital Parks and Planning Commission v. American Humanist Ass’n et al., No. 18-18.   June 20, 2019.


The Freighted Hand of History. The Supreme Court has concluded that the history and custom of incorporating cross symbols in war and other memorials, as well as the susceptibility of the cross to secular as well as religious meaning, indicates that the presence of the World War I memorial cross situated on a publicly owned and maintaining traffic island in Bladensburg, Maryland (the “Bladensburg Cross” or “Peace Cross”) does not offend the First Amendment Establishment Clause.

Not In With the New Nor Out With the Old. The majority of the Court declined to define its determination as a new test for Establishment Clause challenges and similarly declined to explicitly override the much criticized three prong test of Lemon v. Kurtzman, 403 U.S. 602 (1971) while nonetheless refusing to apply Lemon to its analysis in this case.

Multiple Opinions Published. Justice Alito wrote for the seven judges joining in the opinion in whole or in part or in the judgment only. Justices Thomas, Breyer. Kagan, Gorsuch and Kavanaugh wrote separately.  Justice Ginsburg, joined by Justice Sotomayor, sharply criticized the majority, offering that the maintenance of a Christian cross on public land ought to be presumptively offensive to the Establishment Clause.

Background and Procedural History.  The case is a challenge to the presence of a cross-shaped World War I memorial on public land brought by humanists who have alleged they are offended by the sight of the cross, its presence on public lands, and the expenditure of public funds to support the memorial.  The humanists argued that this presence offends the Establishment Clause. The Supreme Court majority has disagreed, declining to uphold the Fourth Circuit order directing the removal or remodeling of the memorial.

The case record discloses that the federal trial court in Maryland dismissed the case, finding that the monument satisfied the three prong test announced in Lemon v. Kurtzman, 403 U.S. 602 (1971) . The court found a secular purposes of commemoration and current public safety in maintaining the cross on public land, and found that a reasonable observer would not form the impression that the cross impermissibly endorsed religion.  Moreover, the static presence of the cross did not excessively entangle the government, as no continued and repetitive government involvement in religion could be found.

The Fourth Circuit Court of Appeals took a contrary view, perceiving that an ordinary observer would indeed see the cross, with its public ownership and maintenance, as an endorsement of Christianity.  The Fourth Circuit focused on the inherent religious meaning of the cross and refused to allow history to serve as a legal determinant, seeing history as expanding rather than diminishing the harm caused by the presence of the cross.  

A dissent in the Fourth Circuit felt the panel overlooked history and failed to recognize that the Lemon test concerned “comprehensive, discriminating, and continuing state surveillance” of religion, which circumstances are absent in the placement and maintenance of a war memorial cross.

Following denial of rehearing en banc in the Fourth Circuit, petitions for certiorari were submitted and granted.

Meaning and Locus in Society.  Justice Alito noted that the Bladensburg Cross serves not just as a Christian symbol but also as an expression of the community’s grief and gratitude, and an affirmation of the values for which the remembered soldiers fought. Removal of the cross would not only work harm to the community but would evince a hostility toward religion which does not comport with the Establishment Clause.

Bladensburg Cross Held to Be in Accord with First Amendment Fundamentals.  The Religion Clauses contemplate the harmonious presence of all beliefs: the Peace Cross is consistent with that purpose.

The Christian cross’s centuries old religious origin is undeniable, but the cross symbol itself figures prominently in trademarks and medical symbols, and with particular presence in war and military memorials and decorations as a symbol of sacrifice.

Justice Alito observed that there was  community involvement in the inception of the Bladensburg Cross, that different faiths participated in  its dedication, that diverse soldiers are honored by the cross, and that the site has been used for multiple public events, particularly veterans’ events.

Lemon Sours. Exegesis of the Religion Clause’s prohibition on any “law respecting the Establishment of Religion” has been a long and difficult endeavor, most notably reflected in the oft-criticized test of Lemon v. Kurtzman,  403 U.S. 602 (1971). Courts and counsel decry the Lemon test, but no court has been so bold as to directly declare its dismissal. To Lemon has been added analysis of the question whether a “reasonable observer” would perceive a government action to endorse religion.

Lemon provides no sound rationale for analysis of cases like the present one for examining the public use of words or symbols with religious associations.  Justice Alito would set aside Lemon in favor of presuming constitutionality attaches to “longstanding monuments, symbols, and practices.”

Memories Fade While Uses Multiply. Discerning initial purposes may become more difficult with the passage of time. At the same time, the purposes for which such monuments are used may multiply and serve secular ends.  

Revisionist Erasure of History No Panacea.  To scrub away names and remove longstanding memorials would strike many as evincing hostility to religion, itself impermissible.

The Christian primacy of the cross symbol cannot preclude recognition of all other meanings.  The cross serves memory, community, and history: its removal after nearly a century would not be neutral and would not foster the values of respect and tolerance that under-gird the First Amendment’s Religion Clauses.

New Presumption of Constitutionality for Aged Items and Practices. The impossibility of fully discerning original purposes, the multiple meanings that evolve over time, the evolution of meanings over time, and the particular meanings to communities which will not see removal as neutral counsel in favor of presuming the constitutionality of longstanding monuments, symbols, and practices, Justice Alito wrote.

What Is Past Is Not Prologue. This new presumption, grounded in history and usage, does not pertain to the new erection or adoption of such practices, Judge Alito noted.  

The Cases Before the Court. The association of the cross with war memorials is a long standing practice, some of which the humanists find unobjectionable.  

Lemon’s ‘unifying’ theory has not proved to be as helpful as has conducting the examination of cases individually with a view toward history. This is particularly apt where current practice may reflect a long tradition of valuing religious tolerance, inclusivity, non-discrimination and the recognition of the role of religion in many lives.

The eradication of religious symbols may evince hostility toward religion notwithstanding that secular associations have added to the symbol’s patina.

In this light, the Bladensburg Cross does not offend the Establishment Clause.  The Bladensburg Cross had a special meaning at its inception in honoring World War I soldiers, then later great historic importance for the city, serving as a memorial to service and sacrifice.  Members of diverse races and faiths are included. Significantly, the symbols used have meaning for many of the individual honorees.

Justice Breyer wrote separately to reiterate his view that no “one size fits all” approach will suit Establishment Clause analyses.  

Justice Breyer would have the court consider cases in view of the principles of the Religion Clauses:  religious liberty, tolerance, avoidance of religious social conflict, and ensuring that church and state remain separate so that each may flourish.  Justice Breyer cautioned that he did not believe that the Court has now adopted any new test — one of ‘history and tradition — that would open the door to new religious memorials on public land.  In all its Establishment Clause analytic endeavors, Justice Breyer offered that the Court must always be at pains to understand the difference between a “real threat and a mere shadow.”

Justice Kavanaugh wrote separately to celebrate what he perceived to be a full, implicit, retrenchment from Lemon.  Several strands of Establishment Clause jurisprudence have not focused on Lemon but on important issues such as history and tradition with respect to religious symbols in public spaces; legislative accommodation for religious activity and exemptions from general laws; government benefits to religions; proscription of coercion in public school prayer; and according parity to religious and secular speech in public forums.  Lemon has held no sway in these cases. If a government act is not coercive, is grounded in tradition or history, treats all with equanimity, or permissibly accommodates or exempts on the basis of religion, then the Establishment Clause is not offended

Justice Kavanaugh suggests that those who remain concerned may want to use local processes to redress perceived wrongs.  So doing would be consistent with the great traditions of the United States. The Supreme Court is not the sole guardian of individual rights;  other governmental entities may provide safeguards greater than those in the federal constitution.

Justice Kagan wrote separately to offer that while Lemon is inapt in this case, Lemon’s focus on purpose and effects is critically important in evaluating government action. Justice Kagan would shy away from adopting an historical focus in Establishment Clause cases generally, and approach each case individually. That said, Justice Kagan applauded the Court’s emphasis on First Amendment values of pluralism, neutrality, and inclusion.

Justice Thomas wrote separately to concur only in the Court’s result and not in its reasoning, noting his fundamental concern with the incorporation of the Establishment Clause against the states.  The “law” mentioned in the Establishment Clause is legislation, making the clause inapplicable even if incorporation were to apply. A religious display has none of the coercive elements that the religious clauses were concerned with.  Justice Thomas would overrule Lemon in toto.

Justice Gorsuch wrote separately to opine that the rejection of “offended observer” standing ought to be articulated clearly.  Rejection of a status that could not withstand traditional Article III analysis was inherent in the court’s determination, however, and  “offended observer” standing has already been rejected by the Court.

Justice Gorsuch has noted that “offended observer” notions fail to comport with the requisites for Article III standing:  concrete, particular, actual, non-conjectural injury in fact; causation and redressability. Justice Gorsuch perceives “offended observer” standing to be the child of Lemon, which the Court clearly recognizes as a “misadventure.”  Lemon ought to meet its demise without leaving behind a noisome legacy like “offended observer” standing. The Court’s present enunciation of the importance of looking to history and tradition is a far more apt approach than that of the cumbersome Lemon test.  

The notion that history or the passage of time permits a presumption of constitutionality is problematic.  Better to apply the reasoning articulated in public prayer cases that create an artificial rule — a presumption — the application of which will prove difficult to define.

Justice Ginsburg, joined by Justice Sotomayor, has offered a dissenting view, criticizing the majority for permitting the ongoing installation of the “immense” cross as in derogation of the principles of government neutrality among faiths as well as between religion and non-religion.  

The preeminent symbol of Christianity cannot be transformed into a secular symbol by incorporation in a war memorial.  The Bladensburg Cross elevates Christianity over other faiths and preferences religion over non-religion. 

The installation of a religious symbol on public land ought to be seen as presumptively endorsing religion, contrary to the majority view  

Such a presumption may be overcome by indicia of neutrality. Museums might be suitable for displaying religious symbols.

The threat that all cemeteries would need refashioning to remove crosses lacks substance, Justice Ginsburg observes, because the presence of these symbols on individual graves may be seen as the protected speech of those buried there.  Neither is it necessary to hide all religious symbols from view. Such symbols may be relocated to private land, or public land may be transferred to private parties.

American Legion v. American Humanists, June 20, 2019 Supreme Court Opinion

An enchanting analysis may be found here:

Subscript Law Infographic of American Legion v. American Humanists Ass’n

And such perspective as may be found could be located here:

 

Supreme Court Vacates Oregon Court of Appeals Judgment and Directs Consideration of the Bakers’ and Customers’ Rights and Interests in Light of Last Term’s Decision in Masterpiece Cakeshop v. Colorado, 586 U.S. ____(2018).

Klein v. Oregon Bureau of Labor and Industries, No. 18-547. Order granting certiorari, vacating judgment below, and remanding for further proceedings entered June 17, 2019.


Petitioners, who owned and operated an Oregon bakery, refused to create a custom wedding cake for a same sex marriage, citing religious beliefs.  The State of Oregon found petitioners to have violated the state’s civil rights laws and imposed a $135,000 fine.  Petitioners submitted a petition for a writ of certiorari at the beginning of the Court’s term and just today, close to the term’s end, learned that the ruling against them has been reversed, and the state court has been directed to review the case anew in light of the Court’s determination last term in Masterpiece Cakeshop v. Colorado, 586 U.S.      (2018).

Petitioners asked the Supreme Court to address significant questions of constitutional law, each of which will remain without determination for now, and perhaps, for all time.  The Kleins asked the Court to determine that requiring them to produce a cake against their religious beliefs would violate the First Amendment Free Speech and Free Exercise clauses.  The Kleins wanted asked the court to determine whether to overturn Employment Division v. Smith, 494 U.S. 872 (1990), which requires compliance with neutral laws of general applicability even if the law infringes in part on rights.  They also wanted the court to determine how to properly evaluate cases in which conflicts among fundamental constitutional rights are presented.

The Court’s response to these questions must await another day, if ever they are reached at all.  Those familiar with the Masterpiece Cakeshop determination will recall that similarly substantial issues were presented there, but were likewise not addressed.  Instead, the Court concluded that the Colorado decision showed improper animus toward religion, and reversed the state’s decision in favor of the state civil rights commission.

Those eager to see the larger constitutional questions addressed may find the Supreme Court’s reliance on the conduct of investigations and other proceedings to be frustrating.  To do so might be short-sighted, however. The Court has sent a clear signal that bias among those charged with investigating bias cannot be countenanced, and where such bias can be shown, a decision infected with improper considerations cannot stand.

This is not a minor point.  All concerned in investigative, administrative, and judicial proceedings are on notice that equanimity is to be strictly observed.  In the absence of fair mindedness, victories may prove Pyrrhic indeed.

What is also interesting is that the Supreme Court, after much time has passed in determining whether or not to grant the petition for certiorari, has asked Oregon to look again at its proceedings.  This was not done in Masterpiece Cakeshop, supra.  No doubt all interested eyes will look to Oregon to observe what will next occur.

What follows is today’s Supreme Court Order, the parties’ submissions regarding certiorari, and a copy of the Masterpiece Cakeshop decision.


Order List (06_17_2019)

Klein Cert Petition

Respondent Oregon’s Opposiition 18-547

Klein Reply re. Certiorari

Masterpiece Cakeshop v. Colorado 584 U.S. 2018

The petitioners were supported by several amicus submissions, as follows:

Institute for Faith and Family Amicus Brief

Pacific Legal Foundation Amicus Brief

Southeastern Legal Foundation Amicus Brief

Foundation for Moral Law Amicus Brief

Center for Constitutional Jurisprudence Amicus Brief

Several States’ Amicus Brief

Thomas More Society Amicus Brief

Cato Institute Amicus Brief

Public Advocate of the United States and Others’ Amicus Brief

Billy Graham Evangelistic Association and Others’ Amicus Brief

 

 

 

 

 

 

 

Federal Court in Massachusetts Refuses Injunctive Relief and Refuses to Narrow Holding that First Amendment Protects Secretly Recording Officials Performing Official Acts in Public Spaces

Martin v. Gross, (D. Mass.) 2019.  Martin v. Gross, 340 F. Supp. 3d 87 (D. Mass. 2018).

The United States District Court in Massachusetts recently reiterated its late 2018 conclusion that a Massachusetts statute that criminalizes covert non-consensual audio or video recordings is unconstitutional as applied to public officials performing their duties in public spaces.  The court examined the competing important government interests in protecting privacy and in permitting information gathering and observed that the police and public officials have no reasonable expectation of privacy when publicly performing official acts.

In May, the court determined that it would be preferable to refrain from issuing injunctive relief and would let its December opinion stand as a declaratory judgment.  Moreover, the court declined to issue definition of “public space” that would narrow the concept and declined to adopt a list of places to be considered public spaces.  In that the permissibly of recordings is subject to reasonable time, place, and manner restrictions, the court sensed that opening the court’s doors to review by contempt proceedings would not be reasonable in that there can be no “one size fits all” injunction and that the availability of contempt proceedings would cause the court to engage in second-guessing the police function.

Martin v. Gross (D. Mass., 2019)

Martin v. Gross, 340 F.Supp.3d 87 (D. Mass., 2018)

Additional information may be found:

WGBH: Judge Rules People May Secretly Record Police in Public Spaces

Digital Media Law Project: Massachusetts Recording Law

 

 

 

 

 

 

 

He Fought the Law and the Law Won: Probable Cause Defeats First Amendment Claim for Retaliatory Arrest

Nieves v. Bartlett, No. 17-1174.  May 28, 2019.


Bartlett was arrested at a ‘raucous’ Arctic Man sports gathering following his initial refusal to speak with officers and subsequent discussion about an underage attendee. He was perceived by police to be aggressive. Bartlett sued the police under 42 U.S.C. Section 1983, claiming that the arrest was in retaliation for his exercise of First Amendment rights.

The Court noted that the question whether probable cause precludes retaliation claims in official policy cases has been left open.  Redress for deprivation of First Amendment rights may be sought if no non-retaliatory basis for official action exists. The critical question is one of “but-for” causation.  No action may proceed unless retaliation has governed any adverse action.

A retaliatory motive will not defeat official action if the official action would have occurred without the retaliatory motive.  Retaliatory arrest claims fail if no probable cause for arrest is shown. A defendant can success only if he or she can show arrest would follow even in the absence of probable cause.

The “no probable cause” rule will not preclude action where a claimant can show that others who were not engaged in protected speech were not arrested. If a vocal critic of police is arrested for jaywalking but others not engaged in protected speech are not arrested, a case can proceed.

In this case, the officer who observed Bartlett’s verbal aggression and body language could conclude a fellow officer was being challenged and perceived the existence of probable cause to arrest.  This defeats the First Amendment retaliation claim.

The Court agreed on the case outcome:  a plaintiff in a retaliatory arrest claim must show not just that retaliatory motive existed but that retaliatory motive caused the arrest.  

The Court was far from agreement on the finer points of its rule.  

Justice Thomas wrote separately to express wariness of the creation of an exception to the “no probable cause” rule, finding this holding to be without precedent in First Amendment jurisprudence.

Justice Gorsuch wrote to express concern that an “exuberant” criminal justice system would permit almost anyone to be arrested for something.  Deference to expansion of extensive state power would inhibit the exercise of constitutionally protected speech. In language certain to be quoted, he wrote:  “If the state could use these (expansive)laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.”

If probable cause cannot by itself defeat a First Amendment claim, and if there is no such requirement in the case law, then adding such a “no probable cause” requirement is a matter better suited for the legislature.  

To borrow from Fourth Amendment wrongful arrest claims to add requirements to first Amendment retaliation claims wanders too far.  Even if “arrest” is a common factor in both instances, Fourth and First Amendment protections are materially distinct.

Where the absence of probable cause is not an absolute requirement for a retaliation claim nor its presence a guarantor of defeat, probable cause is not irrelevant and may be important to establishing causation.  Determinations such as the Court has made in this case should await a more elaborately developed record and presentation.

Justice Ginsburg has dissented in part, noting that the absence of arrest authority can interfere with expression of speech and press rights. The breath of the majority ruling requesting establishment of lack of probable cause makes only baseless arrests actionable, thereby creating opportunities to abuse the exercise of protected rights.  

Justice Ginsburg would require that civil plaintiffs demonstrate unconstitutional animus as a motivating factor in arrest actions. Defendants may show that any resulting adverse action would have been taken without retaliation. The case before the court is not the proper cause to use to enlarge the potential for individuals and the press to be subjected to polices suppression.

Justice Sotomayor has observed that the Court has correctly determined that probable cause alone will not always defeat a First Amendment claim, but criticizes the needless annunciation of a rule which would allow probable cause to defeat retaliation claims unless others were not treated similarly. There is no need to separate First Amendment retaliatory arrest claims from other First Amendment Retaliation claims. There is no basis for the Court’s “mix and match” approach to constitutional law. The majority has determined, without substantial reason, that the law will benefit more from using comparators as evidence of motivations than it will from other forms of proof.  

Justice Sotomayor expressed fear that those who are more easily the objects of police scrutiny — citizen journalists, perhaps — will suffer arrest in the exercise of protected rights. Moreover, obscuring or defining away the role of statements and motivations further opens the door to abuse.

17-1174 Nieves v. Bartlett (05_28_2019)

The (Jurisdictional) Fat Lady Had Already Sung; Supreme Court Holds Dismissal of Social Security Claim as Untimely at Appellate Council Level was Final for Purposes of Seeking Federal Judicial Review

Smith v. Berryhill, Acting Commissioner of Social Security, No. 17-1606. May 28, 2019.


Smith spent considerable time and effort making his way through three layers of review of his disability claim, including participating in administrative law judge proceedings. However, at the fourth level of appellate review his claim was dismissed as untimely. There was dispute concerning the Social Security Administration’s receipt of the request for appellate review.. Yet when Smith sought review in federal court, his claim was again dismissed because the federal court agreed with the agency’s view that the dismissal for untimeliness was not final for purposes of seeking federal court review.  The Court of Appeals for the Sixth Circuit agreed. After much effort, Smith would be without remedy.

Although Justice Sotomayor characterized this case as somewhat routine, in many respects it is anything but. The Supreme Court in this case has warned that federal agencies such as the Social Security Administration are not sole arbiters of their own authority.  An Agency cannot require multiple layers of review, including a hearing, and then call dismissal at the fourth level non-final, thereby precluding federal review. Add to this that the government confessed error in its earlier interpretations of the law, requiring appointment of special counsel to represent the government.  

While observing that the Administrative Procedures Act and agency exhaustion of remedies requirements are not identical, the Court underscored that an agency may not serve as an unreviewable arbiter of compliance with its own administrative steps.  This is particularly so where, as in this case, exhaustion is not a jurisdictional prerequisite.

While no doubt the government will make mistakes, the Court was not persuaded by any “floodgates” argument arising because of such errors.  The Court stressed that just because federal jurisdiction property could include a merits determination rather than remand, courts would do well to tread lightly in that regard, as the entire structure of administrative review is intended to permit all concerned to benefit from agency expertise.  

It would be unwise to speculate as to how far interpretations of this case might stretch. It is fair to say, however, that the case will stand for the proposition that a federal agency administering its own programs cannot create a citadel of its of procedures, leaving claimants without remedies while insulating the agency from review.

Smith v. Berryhill 17-1606_868c

Florida Panhandler Gets By with a Little Help from the Court, While the Rest of Early May’s Plaintiffs Face a Mixed Bag of Results on First Amendment Claims

For those who have little time to read, what follows are snapshots of cases considering First Amendment claims from courts around the U.S. up until mid-May.

AdTrader, Inc., et al. v. Google LLC.  No.17-cv-07082-BLF (VKD) (N.D. Cal.).May 8, 2019. Google’s proposed email and telephonic communications to class members offering credits without mentioning that acceptance would diminish or moot class action claims or requesting release of class action claims cannot be enjoined.

AdTrader, Inc. v. Google LLC (N.D. Cal., 2019)

Maleeha Ahmad, et al. v. City of St. Louis, Missouri.Case No. 4:17 Cv 2455 CDP (E.D. Mo) May 7, 2019.  Class certification granted in action alleging violations of First, Fourth, and Fourteenth amendment rights relating to police use of force and mace without warning on protesters exercising expressive speech and recording police activity.

Ahmad v. City of St. Louis (E.D. Mo., 2019)

AirBnB v. City Of Boston. Civil No. 18-12358-LTS (D. Mass.) May 3, 2019. AirBnB’s challenge to a Boston Municipal ordinance imposing penalties on booking agents for short term leasing of unqualified properties fails. The challenge, brought pursuant to Section 230 of the Communications Decency Act of 1996, cannot succeed where collection of fees is an activity separable from the Section 230 protected activity of publishing third party rental listings.

AirBnB, Inc. v. City of Boston (D. Mass., 2019)

Benner v. St. Paul Public Schools, et al. (D. Minn.) May 3, 2019. Benner brought claims under 42 U.S.C. Section 1983 in connection with alleged adverse employment actions relating to his participation in activity debating and challenging school disciplinary policies and practices. The court recognized that the cumulative impact of investigations and transfer may be argued to be adverse employment action but denied Benner’s claims for retaliation for exercise of First Amendment rights. No municipal liability exists where no evidence shows delegation of authority was made to the schools.  Individual qualified immunity cannot be forfeited where the issue of freedom from reprimands and unsupported adverse action, including threats of termination, causing an employee to feel forced to resign, allegedly because of exercise of constitutionally protected First Amendment rights is recognized under established First Amendment law.

Benner v. St. Paul Pub. Sch. (D. Minn., 2019)

Champion  v. Take Two Interactive Software, Inc. No.  158429/2018, 2019 NY Slip Op. 29136 (Sup. Ct. N.Y. County) May 10, 2019. While video games may be seen as fiction subject to First Amendment protections, this does not automatically remove a game from the applicability of the state civil rights law, particularly where the video game players themselves provide elements of plot.  Petitioner was unable to establish misappropriation of his image and name where the game figure in issue bore no resemblance to him at all (only racial and gender status were the same) and where alleged identical nickname was not shown to be in such widespread public use as to establish identification with plaintiff.

Champion v. Take Two Interactive Software, Inc., 2019 NY Slip Op 29136 (N.Y. Sup. Ct., 2019)

Clark  v. The City Of Williamsburg, Kansas. No. 2:17-cv-02002-hlt  (D. Kan.) May 9, 2019. Ordinance classifying political signs as more appropriate for removal than others because their temporary nature presents structural and safety hazards is a content based regulation of speech that fails strict scrutiny review.  The unconstitutional ordinance may be severed to permit political signs to be regulated on a par with all other signage.

Clark v. City of Williamsburg (D. Kan., 2019)

Colorado v. Jose Luis Galvan, Sr. No. 16CA1988, 2019 COA 68 (Colo. App.) May 9, 2019. Epithets regarding girth and dispositions of sisters uttered during a drunken rumble on a party bus are not sufficient to constitute “fighting words”  — words which would provoke an ordinary person to outrage and invite immediate response — but provocateur’s invitation to “come and get it” invites violence. Use of words not protected by the constitution warranted giving provocation instruction.  Jury determination of criminal assault affirmed.

People v. Galvan, 2019 COA 68 (Colo. App., 2019)

Commonwealth v. David Melo. No. 18-P-77 (Mass. App.) May 8, 2019 (slip opinion).“Expressive” nature of dancing does not confer First Amendment protection shielding defendant from prosecution for lewd and lascivious conduct.

Commonwealth v. Melo (Mass. App., 2019)

Dallas Morning News, Inc. and Kevin Krause v. Lewis Hall and Richard Hall, Individually and on behalf of RXpress Pharmacies and XPress Compounding. No. 17-0637 (Tex.) May 10, 2019.  Warrant directed to individuals but encompassing corporate matters is not evidence supporting a claim of falsity in Dallas Morning News‘ publication of a statement concerning investigation of compounding pharmacy activity. Although it is recognized that objectively true statements may be strung together to suggest criminality, and therefore be defamatory, that is not true where the reporting does not suggest criminality. Where statements in a published account of judicial and official proceedings are substantially true, news reporters enjoy a privilege protecting against claims of defamation.  

Dallas Morning News, Inc. v. Hall (Tex., 2019)

Ex Parte Rodolfo Ortega Nunez. No. 11-18-00156-CR (Tex.App.) May 9, 2019.  Petition for habeas corpus denied because privacy is a compelling state interest supporting laws against surreptitious video recording.  Prohibition on recording is content, not behaviorally, based and therefore is not outside First Amendment protections. Statutes criminalizing recording in bathrooms or changing areas is succinctly narrowly tailored to support the compelling state interest in privacy.  

Ex parte Nunez (Tex. App., 2019)

FilmOn.com Inc. v. DoubleVerify Inc. S244157 (Cal.) May 6, 2019.  Court of Appeals determination that context is irrelevant is reversed.  Context may be considered in determining whether a statement has been made in service of free speech in connection with a public issue.  Utilization reports are too attenuated from the public interest to warrant anti-SLAPP protection. To be protected, a statement must not only concern a matter of public interest but it must contribute to public debate.  As it is possible for commercial speech to contribute to the public interest, that status is not dispositive. Here, two for-profit entities argue about a private report which discusses others’ business practices This context permits the conclusion that the statements in issue were not made in connection free speech as a matter of public interest.  

FilmOn.com Inc. v. DoubleVerify Inc. (Cal., 2019)

In Re Alize R. v. The People, No. G055682 (Cal. App. 4th Dist.) May 2, 2019.  Juvenile adjudication. Student’s remark “Ima shank you” to teacher sufficient to support conviction where words might be seen as reasonably constituting a true threat even if not all individuals would perceive a threat.

People v. Alize R. (In re Alize R.) (Cal. App., 2019)

J.A.C. v M.J.C. No. J-s13027-19, No. 1652 WDA 2018 (Sup. Ct. Pa.) May 8, 2019. Non-precedential. Earlier order invalidated because limiting mother’s discussion of father’s inappropriate communications with half- sister unduly limits mother’s ability to protect child. Gag order limitation is not in the best interest of the child where the child is naive, does not recognize inappropriate sexual conduct, and father engaged in such conduct in front of child. As court perceived it was able to resolve issue without reaching constitutional question, court declined to address mother’s argument that speech restrictions violated her First Amendment rights.

J.A.C. v. M.J.C. (Pa. Super. Ct., 2019)

Kardasz, et al. v. Spranger, et al.  No. 17-cv-10937 (E.D. Mich.) May 6, 2019. Claim asserting ethics violation need not be on record before First Amendment retaliation claim may be found to exist.  Proximity in time between protected activity and termination may suffice to establish causation. Employees’ submission of ethics claims not within official duties precluding action.

Kardasz v. Spranger (E.D. Mich., 2019)

Nelson, et al. Individually and as Members of The Prayer Tabernacle Church of Faith, Inc. v. Brewer, et al. and The New Prayer Tabernacle Church.  2019 Ill. App. (1st) 173143. May 10, 2019. First Amendment precludes civil court jurisdiction of ecclesial matters.  No error occurred here, however, where court applied neutral principles to determine whether church complied with its own state law governing documents.

Nelson v. Brewer, 2019 IL App (1st) 173143 (Ill. App., 2019)

Omicron Chapter of Kappa Alpha Theta Sorority, et al. v. University Of Southern California.  No. B292907; B294574. (Cal. App. 5th Div.) May 1, 2019.  Associational standing is proper where association aptly represents interests of members but association may not assert interests of unidentified non-members or prospective members said to be inhibited by university’s deferred recruitment program.  The university policy would prohibit recruitment until students had a chance to acclimate to university life. The fraternal association must be offered an opportunity to show: 1) whether the university’s deferred recruitment policy violates law prohibiting punishment of students because of speech, or 2) whether under a limited public forum analysis the university policy unduly burdens fraternities’ speech interests.

Omicron Chapter of Kappa Alpha Theta Sorority v. Univ. of S. Cal. (Cal. App., 2019)

P&L Development LLC v. .Bionpharma Inc.and Bionpharma Healthcare LLC. No. 1:17cv1154 (M.D. N.C.) May 10, 2019.  Type of court submission is not outcome determinative in addressing right of access questions, but exceptions to access must be justified with particularity.  

P & L Dev. LLC v. Bionpharma Inc. (M.D. N.C., 2019)

Robert W. Mauthe, M.D., P.C. Individually and as Class Representative v. MCMC LLC. No. 18-1901 (E.D. Pa.) May 13, 2019.  Scope of consent reflected in a consumer agreement to receive fax communications and applicability of opt outs as relating to privacy issue in class action under the Telephone Consumer Protection Act, as amended by the Junk Fax Act (TCPA), is a  question of fact precluding summary judgement.

Robert W. Mauthe, M.D., P.C. v. MCMC LLC (E.D. Pa., 2019)

Roman Catholic Archdiocese of Kansas City In Kansas and St. Rose Philippine Duchesne Catholic Church v. City Of Mission Woods. No. 17-2186-DDC (D. Kan.) May 10, 2019.  No principle requires that a party must succeed on each of its claims to be a prevailing party on the merits for injunctive purposes.  Court anticipates further elucidation of the meaning of equal treatment in RLUIPA cases, but for present purposes evidence showing church and other entities’ presented similar land use requests was sufficient to support determination. Judgment and permanent injunction affirmed.

Roman Catholic Archdiocese of Kan. City v. City of Mission Woods (D. Kan., 2019)

Touchstream Technologies, Inc. v. Vizbee, Inc. No. 17-cv-6247 (PGG) (KNF) (S.D.N.Y.) May 10, 2019. Conclusory assertions are not sufficiently proprietary to warrant exception to presumption of access to courts and pleadings.

Touchstream Techs., Inc. v. Vizbee, Inc. (S.D. N.Y., 2019)

United States of America, v. Carlos Bayon. No. 18-cr-163-fpg-jjm (W.D.N.Y.) May 9, 2019. The district court affirms a magistrate’s determination that the question of whether defendant’s telephone calls to public officials were unprotected “true threats” is one of fact for trial, not one of law for adjudication by ruling on a motion to dismiss.

United States v. Bayon (W.D. N.Y., 2019)

Vigue v. David B. Shoar, Sheriff of St. Johns County And Gene Spaulding, Director of the Florida Highway Patrol. Case No. 3:19-cv-186-j-32jbt (M.D. Fla.) May 6, 2019. Florida district court has granted injunctive relief forbidding enforcement of public charitable solicitation law to individual soliciting funds while bearing a sign offering blessings. Where no interference with the public is known, public safety may be adequately addressed by other means. Deprivations of First Amendment rights are presumably irrevocable, warranting injunctive relief pending a full hearing.  The court notes that the 11th Circuit has found similar statutes defective.

Vigue v. Shoar (M.D. Fla., 2019)

 

 

Disconcerted by Denial of Certiorari in Prison Speech Rights Case, Three Justices Dissent

Dahne v. Richey, No. 18-761, 587 U.S. ____  (Decided May 13, 2019).


The Supreme Court has denied a prison official’s petition for certiorari from a Ninth Circuit decision determination that a District Court erred in part in addressing a prisoner’s claim for violation of speech and petition rights.  

The Ninth Circuit concluded that disrespectful language in an inmate’s petition for redress of a grievance poses no security risk. Without a legitimate penological reason for doing so, the appellate panel held, imposing a content based limitation of a prisoner’s expression is unconstitutional.  While a mere request to rewrite a grievance would not violate the constitution, wholesale rejection of a grievance because of content is problematic. Judgement of the district court for the inmate on the speech claim was upheld.

However, the Ninth Circuit found that the district court should have ruled in favor of the prison official on summary judgment in petitioner’s claim that his grievance was dismissed out of hand in retaliation for exercise of expressive rights.  The law was not and is not settled that refusal to process a grievance petition, as occurred here, is a clear violation of constitutional rights. As such, the Ninth Circuit found, as a matter of law the prison official’s qualified immunity ought not be disturbed.   

Three justices of the Supreme Court appear to have been vexed by the denial of certiorari.  

Justice Alito, writing for himself, Justice Thomas and Justice Kavanaugh , observed that the case may have more to it than was shown in the submission before the court and that granting certiorari might have afforded the Court an opportunity to settle that which some perceive to be unsettled.  

Most troubling to the dissenters if the suggestion that a prisoner’s speech rights, which may be curtailed, may nonetheless encompass veiled threats to kill or injure a guard. This is particularly so where a prisoner had killed a prison official within memory of the grievance that precipitated this case.  

Justice Alito offered the assessment that the Ninth Circuit has “defied both our precedents and common sense” in its conceptualization of the the breadth of “expressive speech” that was perceived to be constitutionally protected. Justice Alito observed that some circuits have upheld prohibitions on coarse or profane language in prisoner’s grievances. Even if such language were found to be protected, however, it would not logically follow that such protections would extend to veiled threats.

18-761 Dahne v. Richey (05_13_2019)

Richey v. Dahne, No. 17-35032, 9th Cir. April 25, 2018. Unpublished Opinion.

1🖼️ = 1K 🕮? Courts Adapt to the Language of Emoticons

Although the yellow smiley face (  😀 ) has had a decades long presence in popular culture, instant communication technologies have precipitated a explosion in the use of multiple pictorial symbols, collectively called emoticons or emojis.  Some decry use of emojis as a perceived regression to hieroglyph, signifying burgeoning illiteracy. Others applaud the utility of the often playful symbols as shorthand expressions of feelings as well as words.

All would be well (even if controversial) but for the tendency of the human animal toward misunderstanding in any form of communication.  This presents courts with novel opportunities to consider the admissibility and meaning of the discourse of emoticons.

While the utility of a symbol is grounded in its ability to prompt instant recognition, symbols themselves are not entirely uniform and may differ in appearance depending on the platform employing the emoticon’s underlying code.  Cosmetic differences are but one facet of the introduction of symbolic speech in the judicial lexicon. Emoticons, like words, have secondary meanings and nuance. Given that multiple meanings may attach to a single, superficially innocuous icon, cavalier use may be incautious.  

Law Professor Eric Goldman of Santa Clara Law School, proprietor of the Technology & Marketing Law Blog, has tracked the presence of emoticons in judicial records, observing remarkable growth.  

A recent overview of case law from the beginning of 2019 to the present provides some indication that the courts are not shrinking from the task of recognizing and interpreting emoji.  While in one case a criminal court obtained the testimony of detectives expert in pandering, pimping, and prostitution to interpret emojis said to represent an invitation to participation in those activities, most of the cases mention emojis as if they were commonplace, or omit them and note that omission as with any other editorial intervention.

While this may be some indication of a willing judicial adoption of this emerging form of communication, in light of ongoing and often charged controversies over the use and meaning of language, it is unlikely that issues attending the emergence and widespread use of emoticons have as yet been explored in full.

What follows gathers from online resources, scholarship, journalism and  case law to illustrate the emerging discourse concerning emoticons. A bit of leaven is included at the end.

References

Emojopedia   A dictionary of emoticons with articles about the development, usage and meaning of emoticons, called emojiology (after etymology),  and current news.

Legal Cheek:  Twelve Famous Cases in Emoticons

Netlingo   A dictionary of internet terms and symbols, including news and usage data. Some entries merit the acronym NSFW (not safe for work).

The Smiley Company  History and development of an array of smileys, from a global licensing  company.

The Smiley Dictionary  An apparent user created contribution to the resources of Computer Science House, a special interest group of Rochester Institute of Technology.

Twitter:  @emoticoncaselaw

Wikipedia:  List of Emoticons    Provides an overview of types of emoticons and the underlying coding languages in use in producing them.  

Scholarship

Goldman, Eric.  Emojis and the Law. 93 Wash. L. Rev. 1227 (2018)

Goldman, Emojis and the Law Worksheet, 2019.

Kirley and McMahan:  The Emoji Factor: Humanizing the Emerging Law of Digital Speech (2018 SSRN Advance Copy of Tennessee Law Review)

Media Discussion

2015 01 29 New York Times:  At Silk Road Trial, Lawyers Fight to Include Evidence they Call Vital: Emoji.

2015 12 07 ABC (Australia)  Emoji and The Law: Threatening Violence

2016 03 18 Wall Street Journal Law Blog:  The Supreme Court Emoji Challenge (Paywall)

2016 10 16 Yahoo Finance:  Your Silly Emojis are Going to Court

2018 01 30 9to5Mac: Court Ruled Emoji Constituted Rental Contract

2018 05 03 Lawyers Mutual Byte of Prevention Blog:  How an Emoji Can Land You in Court

2018 06 27 Wired:  Academics Gathered to Share Emoji Research, and it was Hot

2019 01 31 Technology and Marketing Blog:  Emoji Law 2018 Year in Review

2019 02 07 Recorder:  Getting Ready for the Emoji Law Revolution

2019 02 11 Technology and Marketing Blog:  What’s New in Emoji Law? An Interview

2019 02 18 The Verge:  Emojis are Showing Up in Court Cases Exponentially, and Courts are Not Prepared

2019 02 19 Legal Cheek:  Why Courts Need to Become Fluent in Emoji    

2019 02 19 9to5Mac: More and More Cases Require Courts to Interpret the Meaning of Emoji  

2019 02 19 Gizmodo:  How Would You Like Having Your Emoji Messages Read Out Loud in Court?

2019 02 19 Mystal, Above The Law:  Is Emoji Law Going to be a Thing2019 02 19 Geek.com:  Number of Emoji References in U.S. Court Cases Growing Exponentially

2019 02 19 Futurism:  The Byte: Judges Are Struggling to Interpret Emoji in Court Cases

2019 02 20 EDiscovery Daily Blog:  Emoji are Showing Up in Court Cases More and More

2019 02 22 Washington Post:  Your Honor It Is an Eggplant: Lawyers Call for Guidance on Interpreting Emoji

2019 02 24 The Tartan:  Courts are Unprepared for the Appearance of Emojis in Cases

2019 02 25 CNBC (Mystal) Emojis Can Now Be Used as Court Evidence:  Here’s What to Expect

Recent Case Law

Blount v. State, NO. 14-17-00988-CR (Tex. App.).  April 22, 2019.       Text emojis noted in brackets without description, in the same fashion as deleted expletives.

Cannon v. Southern University Board of Supervisors, No. 17-527 – SDD – RLB (M.D. La. April 12, 2019)  Use of emoji in response to request for admissions as well as threatening language part of evidence indicating sanctions appropriate.

DeLucia v. Castillo, CASE NO. 3:19-CV-7 (CDL) (D. Ga.) April 23, 2019.  Emojis included in evidence of communications with child in abduction case.

Commonwealth of Pennsylvania v. Hackenberger, J-S72014-18 No. 120 MDA 2018 (Superior Court) April 16, 2019.   Unpublished opinion.  Text messages using emoticons relevant in child sexual exploitation case.

Commonwealth v. Hunt, 18-P-106 (Mass. App.) February 22, 2019.  (Unprecedential.) Discussion of evidence suggesting witness bias in domestic assault case includes texts, including emojis.

Doe v. University of Kentucky, 5:17-cv-00345-JMH (E.D. Ky.) January 18, 2019.  Post-encounter text, including emoji, part of evidence in case alleging university negligence in investigation and presentation of Title IX complaint.

Gonzalez v. State, 3-CRNo. 08-14-0029  (Tex. App. 2019). April 9, 2019.  Court omits emojis and editorial remarks concerning language where the parties have placed no emphasis on the emojis.  

People v. Jamerson  A153218 (Cal. App. 2019).  February 6, 2019. (Unpublished.) Detectives offer expert testimony concerning the meaning of crown and other emojis in pimping and pandering case.

State v. Bey,  2019 Ohio 423 (2019)  Gun emojis posted on Facebook page part of evidence in criminal trial.

State v. Polchert, Appeal No. 2018AP849-CR  (Wis. App., 2019) March 26, 2019.  Emoji showing ‘broken heart’ included in evidence of online exchanges in case charging use of computer to commit sex crime.

State v. Berrios, AC 40043 (Conn. App. 2019).  February 5, 2019. Emojis noted as redacted in transcript of text exchange in witness intimidation case.

State v. Foster, No. E2018-01205-CCA-R3-CD (Tenn. Crim. App.) April 10, 2019.  Emojis noted in transcripts of exchanges in case of aggravated rape of a minor.

State v. Potter,  No. E2015-02261-CCA-R3-CD (Tenn. Crim. App. 2019) February 5, 2019. Smiling emoji noted and redacted in transcript of email exchange in first degree murder case.

…and some comedic observations (NSFW):

2012, Season 37:  Saturday Night Live:  Embarrassing Text Message Evidence Proves a Man’s Innocence

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)

 

Private Non-Profit Managing Public Access Channels of Manhattan Cable Franchise Is Not a “State Actor” For First Amendment Purposes

Manhattan Community Access Corporation v. Halleck, et al., No. 17-1702.  June 17, 2019.


Cable television companies are required by federal law to set aside some broadcast capacity to permit public access broadcasting.  As in this case, local governments contract with the cable companies to operate these public access services. Here, New York City, which franchised  Time Warner Cable Company, contracted with a private entity, Manhattan Neighborhood Network (MNN), to operate the community access programs. Film producers Halleck and Melendez sued MNN asserting that their termination after the broadcast of their critical documentary violated their First Amendment rights.

The Supreme Court has concluded that private community access operator MNN is not a “state actor” who has assumed traditionally exclusively public duties.

Public access broadcast channels came into being with a 1970 federal law requiring cable operators to set aside resources for such channels.  That law was determined to have been deficient. In 1984 the federal government conferred upon state and local government the authority to require public access set aides.

Currently New York State requires set asides and permits cable operators to operate the public access channels themselves.  Alternatively, the cable operators may allow local governments to operate the set asides or permit a private entity to do so.  

In this case New York City entered into a franchise arrangement with Time Warner Cable Company which permitted the city to designate the public access channel operators.  The city designated the non-profit Manhattan Neighborhood Network (MNN) to operate the public access channels.

The Supreme Court reordered the logic of the Second Circuit and reversed in part its decision, which had found that by operating a public forum, a traditionally exclusively governmental function, the Manhattan Neighborhood Network became a state actor answerable for First Amendment violations.  

The Supreme Court has concluded that the public access operator is a private entity. Operation of public access channels in a cable system is not, the Court observed, a traditionally exclusively governmental function.  Opening up a space for others’ speech will not transform a private entity into a state actor for First Amendment purposes. The city’s provision of a license to MNN will not make the private entity a state actor unless MNN exercised traditionally exclusively public functions. Regulation will not work the transformation from private to governmental entity either.

The Court does not agree with the argument that the public access channels are public property.  The city does not have a property interest in the public access channels. Time Warner, the city’s franchisee, granted the city the opportunity to designate a private entity like MNN to operate the public access channels, but this did not disturb Time Warner’s ownership of the cable system.

The Court observed that other arrangements might yield other results.  The Court expressed fear that the expansion of government control through application of the state actor doctrine here would diminish individual liberty and private enterprise.

Three justices dissented, offering the view that the case concerns a government’s appointment of an entity to operate a constitutional public forum. The dissent did not perceive the property to be private property opened up to others.  The city has a property interest in the franchise granted to Time Warner. That franchise requires Time Warner to open the public access channels as a public forum. The city’s contract with MNN made MNN the city’s agent, stepping into the government’s shoes and becoming a state actor subject to the First Amendment.

The state requires the cable franchisees to provide open access public channels without editorial control of content.  The city’s property interest in the franchise and the mandated open access requires that the operator be treated as a state actor.  The city had an obligation to provide the public forums once a franchise was granted and was obligated to comply with the First Amendment once the forum was provided.  These constitutional obligations could not be diminished or eradicated by delegation to a private administrator such as MNN.

Manhattan Community Access Corp. et al. v. Halleck et al., No. 17-1702. June 17, 2019.