Fundamental Speech Freedoms Ill-Served by Denial of Petitions for Certiorari in “Climate Change” Defamation Cases: Justice Alito Dissents

National Review, Inc. v. Michael E. Mann, No. 18-1451 and Competitive Enterprise Institute v. Michael E. Mann, No. 18-1477.  Petitions for Certiorari denied November 25, 2019.


To encourage the free flow of ideas and debate on matters of public concern, the First Amendment insulates statements of opinion from liability in defamation unless those opinions can be shown to be premised on demonstrably false assertions. 

If Jones says, “Smith could not defend my dog,” Jones cannot be sued if Jones has simply offered a sardonic appraisal of Smith’s advocacy.  If, however, Jones makes this statement when Smith has in fact won Fido’s acquittal, Jones may be liable in defamation, for his opinion is grounded in a falsehood. 

Unsurprisingly, yet apparently quite unpleasantly, the eruption of a firestorm of controversy about the soundness of the scientific evidence concerning climate change, accompanied by no small number of challenges to the character of its proponents and opponents, prompted scientist Mann to sue two conservative opponents of his research in defamation.   

No trial has been held as yet:  Defendants the National Review and the Competitive Enterprise Institute asked that the Supreme Court consider who — judge or jury — should decide the contours of defamation claims, and how that should be accomplished.

The petitions for certiorari were denied on November 25, 2019.

Determinations about what is opinion and what is demonstrably true or false may be conclusive of liability in defamation cases, at least insofar as opinion is not actionable.  Special statutes reflect the goal of promptly resolving, through motions practice, claims concerning comment on matters of public interest. 

The capacity of the statutory framework to suit constitutional ends may become more intensive complex where the integrity of matters of scientific inquiry are concerned, as testing the truth of asserted facts and hypotheses is the very purpose of scientific inquiry.  Few would suggest that pretermitting discussion would serve any good end.

Just how much foundation in fact and how much hyperbole may be tolerated before speech loses First Amendment protection and becomes actionable in defamation generates no end of controversy, not the least component of which is who may decide such questions:  judge or jury. If these are questions of law, a judge may decide. If these are questions of fact, a jury may decide, and a judge ought not invade a jury’s fact-finding province.

The time and toil involved in preparing for trial is substantial, making the decision about deciders of great significance.  Yet notwithstanding advocates’ proffered arguments that there is a need for Supreme Court review of these questions, the Court has declined, to the disappointment of Justice Alito, who wrote separately in dissent from denial of the petitions of certiorari.  Justice Alito noted the critical nature of addressing these questions in order to ensure the preservation of First Amendment freedoms, which serve to guarantee that all may “speak freely and without fear” on matters of public concern.

 Confidence in constitutional guarantees is not well served by the uncertainty that is sustained by failure to resolve these questions, Justice Alito has offered.  This is especially so, he has noted, where the Court in recent years has not shied away from addressing First Amendment concerns in regulatory matters.  

While it is true that no rights have been conclusively forfeited in these cases because of the interlocutory nature of the appeal and the availability of trial, Justice Alito perceives the burdens of litigation and trial in themselves as potential impediments to participation in commentary on matters of public concern.  Justice Alito would have the Court step in to resolve such issues sooner rather than later or not at all.  

The Alito commentary:

18-1451_2019 11 25 Alito Dissent from Denial of Certiorari

The Opinion of the District of Columbia Court of Appeals that prompted petitions for certiorari:

Inst v. Mann, 150 A.3d 1213 (D.C., 2016)

 

 

 

No Treats Here: Federal Court Enjoins Sheriff of Butts County, Georgia from Posting Warning Signs on Registered Sex Offenders’ Property

Reed, et al. v. Long, et al., No. 5:19-cv-00385 (M.D. Ga.) October 29, 2019.


A federal judge has enjoined a county sheriff from placing signs near the homes of several of the plaintiffs in this case, who are rehabilitated, yet registered, sex offenders.  The signs announced that no one would be permitted to seek Halloween treats at the address. The sheriff also left leaflets at the plaintiffs’ homes stating that the signposts were there because of their registered status.  

At least one plaintiff was threatened with arrest if he removed the sign.  

The court concluded that the sheriff’s acts compelled plaintiffs to speak in violation of the First Amendment, which restrains the government from inhibiting or requiring speech.  The court rejected the notion that the signs, as government speech, were wholly exempt from review as compelled speech.  

The court likewise rejected that notion that the signs were the least restrictive means of addressing the admittedly compelling government interest in child safety.  Where less intrusive measures had been effective in the past, and where the county had the capacity to caution without offending plaintiffs’ First Amendment rights, defendants had not shown that theirs was the least restrictive means of serving the government’s interest. 

In awarding preliminary injunctive relief to three plaintiffs, the court declined to extend the injunction to all members of the class, as the court was concerned about whether some have been classified as more likely to pose a threat to others than the plaintiffs.

Reed v. Long, No. 5:19-cv-00385 (M.D. Ga.) Order of October 29, 2019.

Graffiti Gravitas: U.S. District Court in Maine Enjoins Enforcement of Student’s Suspension Subsequent to Posting Message About Sexual Assault in School Bathroom

A.M., a Minor v. Cape Elizabeth School District, et al., No. 2:19-cv-00466-LEW.  Opinion dated October 24, 2019.  


A.M. was suspended from high school in Cape Elizabeth, Maine, for violation of the school’s bullying policy.  She has sought and obtained a preliminary injunction on First Amendment grounds prohibiting enforcement of the suspension pending resolution of her claims on their merits.

A.M. had posted a note in a school bathroom announcing “There’s a Rapist In Our School, and You Know Who It Is.”  Another student discovered the note and presented it to school authorities. “Copy cat” postings ensued, the news swept through the student community, and a student was perceived to have been identified as the “rapist,” and was ostracized. 

The school commenced an exhaustive investigation, communicating by letter with parents with concerns and status information.  

If the firestorm within the school were not enough, local and national news media provided its external complement. 

Students protested the suspension of fellow students, and A.M., through her parents, sought relief from the suspension in federal court.

The federal district court rejected the school’s arguments and found preliminary injunctive relief to be appropriate where it appeared to the court that A.M. could show a likelihood of success on her First Amendment claim, where damage to First Amendment interests is presumptively irreparable, and where the harm to A.M. from suspension exceeds any institutional harm to the school.   

The school could not show that A.M.’s post was defamatory, particularly where the law of defamation concerning student speech is not well contoured and where no showing had been made that the link concerned another or was made with negligence.

As protected speech, then, the school would need to show that its actions came within the precedent established by Tinker v. Des Moines Independent Community School District, 393 U.S. 509 (1969) and subsequent cases.  Tinker established that students have First Amendment rights that are not coextensive with those of adults but that student speech ought not be interfered with absent substantial disruption in school operations or harm to others.

The court stressed that A.M.’s posting was undoubtedly one of current political interest:  concern about sexual assault and concomitant concern about authority’s responses to claims of sexual assault.  A post-it allegation in a school bathroom is not easily seen, the court observed, as the sort of call to disruptive arms that Tinker contemplates.  

Whether seen from the standpoint of foreseeable harm from the posting or from the standpoint of alleged harm in fact, the court appeared to be of the view that if controversy about this current issue consumed the school for a short period of time, this partakes more of the sort of lively, if sometimes rough-edged, public debate that the First Amendment exists to protect, rather than the sort of chaotic and dangerous behavior that Tinker would denounce.

That some students experienced fear or anxiety about the claim that there was a sexual assailant in the school and that some school administrators needed to work more than they did ordinarily were not the sorts of disruption that Tinker envisioned would justify speech disciplinary measures, the court concluded.  

Neither could the school create a clear line between A.M.’s posting and any harm to another, the court found.  A causal chain between A.M.’s action and the ostracized student had not been established at this preliminary stage.  

As the court perceived that A.M. might succeed on the merits of her First Amendment claim, and as the school defendants had not made a showing sufficient to controvert that claim, the court enjoined enforcement of A.M.’s school suspension.  

A.M. v. Cape Elizabeth School District, No. 19-cv-00466 (D. Maine)

Portland Head Light

Cape Elizabeth at a moment of greater tranquility.  2014 Photograph by James C.B. Walsh.  Displayed pursuant to Creative Commons license.  

 

 

Criminalizing Public Criticism: Federal Court Rules Pre-Enforcement Challenge to New Hampshire Criminal Defamation Statute May Proceed

Frese v. McDonald, 2019 DNH 184 (D. N.H., 2019). October 25, 2019.


Policing the police through public speech may be stifled, or ‘chilled,’ in First Amendment nomenclature, the federal court in New Hampshire has ruled, where the scope of the state criminal defamation statute is not clear. The addition of a scienter or knowledge requirement concerning false statements or the likelihood of public contempt adds nothing to dispel this apparent vagueness, the court has observed, particularly where the distinction between criticism and the invitation to contempt is not always plain.

Frese, a vociferous challenger of police and other official behavior, need not await actual criminal enforcement where his First Amendment interests are involved and where the exercise of those rights may be suppressed because of the threat of prosecution. Where encounters with the police have occurred in the past, where citizens as well as police may initiate proceedings, where there are indications that enforcement may be arbitrary, and where a criminal misdemeanor defendant may not insist on a jury trial or counsel, Frese’s constitutional interests are of such import that dismissal at the pleading stage is not warranted, the federal district court has concluded.

JustLawful Observation: Plaintiff Frese has not endeared himself to the New Hampshire authorities, but has found an ally in the American Civil Liberties Union, which has advocated on his behalf.

This test of the limits of criminalization of speech concerning public officials will likely have repercussions beyond New Hampshire: the ACLU observes half of the states have similar statutes.

Not all are in accord in this effort to release any choke-hold, real or imagined, that the threat of criminal prosecution for public criticism carries. At least one noted First Amendment scholar disagrees with the federal court in New Hampshire. As the statute is limited to knowingly false statements, this state of mind requirement saves the criminal defamation law from constitutional infirmity.

Ruling on Motion to Dismiss:

Frese v. MacDonald 2019 10 25 D. N.H.

News Accounts and Commentary:

Vagueness Challenge to N.H.’s Criminal Libel Statute Can Go Forward – Reason.com

He Disparaged the Police on Facebook. So They Arrested Him. – Liptak, The New York Times

Civil Settlement New Hampshire Union Leader

Concord News Coverage of Frese

Banned in Exeter_ Police Critic Unwelcome at Church, Shops. Seacoastonline.com – Portsmouth, NH

New Hampshire Police Arrested a Man for Being Mean to Them on the Internet

Model Citizen_ No. But Exeter Man Is At Center of First Amendment Dispute _ New Hampshire Public Radio

 

 

 

Criminalizing the Publication of Private Images Without Consent: The Supreme Court of Illinois Finds No Constitutional Flaw in “Revenge Porn” Statute

People v. Austin, 2019 Il 123910.  October 18, 2019.


Illinois boasts of the most rigorous law in the land respecting criminal liability for the dissemination of sexual images without consent. 

A trial court found the statute to be an impermissible content based speech restriction,  The circuit court dismissed a case against a woman who provided third parties with images of her former fiancee’s lover that were created and transmitted electronically between the former fiancee and lover.  

The state’s highest appellate court has reversed that determination, holding that the statute was not a content based regulation of speech but a valid exercise of state power to protect privacy.  

The court noted that the colloquial term “revenge porn” hardly captures the depth of the ills that may ensue when private images are published.  This is particularly so where the internet has produced its own niche for such images, drawing multitudes of eyes. 

There is an avid thirst for such materials in the online world, and there is no guarantee that even the most rigorous scrubbing of the internet would remove all images once set free in the ethereal, yet durable, online world.  Reputations and livelihoods may be lost, and families and loved ones may suffer. The court observed that there is no shortage of enduring damage that can ensue from publishing private images, and, in the court’s opinion, no civil law remedies will come close to ensuring such behavior is discouraged. 

The court’s majority sidestepped content analysis by observing that the statute does not concern content  so much as it makes criminally culpable the intentional publication of private images without consent. As only private images are of concern, the statute does not burden more speech than is necessary.  Moreover, to be criminal, publication must be intentional and with knowledge that the images were considered private.  

The court declined to announce a new species of speech categorically unprotected by the First Amendment.  Instead, the majority decided that the state has long acted with legitimacy in protecting privacy without encountering First Amendment infirmities where they are found to survive intermediate scrutiny. 

The court noted that the statute is not unlike other laws which prohibit disclosure of private matters such as medical records or identifying information.  Moreover, state action addressing private communications ordinarily receives somewhat less constitutional protection than does speech on matters of public concern, for the latter are the core of the First Amendment’s concerns.

Given the statute’s narrow scope  — the intentional distribution of sexual images understood to be private —  the court rejected an over-breadth challenge, as it is not likely that the statute could be found to proscribe a substantial amount of protected speech. Where it was conceded that the statute was sufficiently clear to avoid arbitrary enforcement, only a vagueness challenge remained, but the plain meaning of the plain language of the statute defeated its recognition.

The court also rejected the argument that the recipient of a sexual image acquires property interests that would invoke due process protections.  Being cognizant of whether an image was intended to be private does not require mind-reading. 

Two dissenting justices decried the majority’s recognition and subsequent abandonment of strict scrutiny as the standard of review and sharply dismissed the notion that the statute does not concern content when the subject of the statute is content:  private sexual imagery.  The statute, which provides no standard of intent, cannot be seen as narrowly tailored to serve any compelling state interest that might be found.  There are less restrictive means than criminal conviction to address any issues presented by ‘revenge porn,’ such as a private right of action.  

JustLawful Observation:  Within the past decade many states have enacted laws criminalizing the publication of private images.  Vermont has already considered its state statute, and found it to be constitutionally sound. More challenges will no doubt ensue, and it is not beyond imagination that at some point the United States Supreme Court will be requested to address the concerns raised by the statute.  This is particularly so where new categorical exceptions from First Amendment protection — such as racial epithets — are under discussion as potential solutions for otherwise insoluble and repetitive First Amendment issues.  

People v. Austin, 2019 IL123910

State v. Van Buren 2018 VT 95

 

 

The Right to Tell the State It Is Wrong: Ninth Circuit Recognizes Parent May Have a Claim Against Social Workers for Retaliation for Exercising First Amendment Rights in Connection with Child Protection Laws

Capp, et al. v. County of San Diego, et al., No. 18-55119 (9th Cir.) October 4,2019.


Jonathan Capp, going it alone in the judicial labyrinth, twice failed to persuade a trial court that he had been drawn into parental rights proceedings because he railed against the allegations made against him. The trial court twice dismissed his claim, first as insufficiently plead and again as barred by qualified immunity.

The Ninth Circuit has concluded that Capp in fact may assert a claim for violation of his First Amendment rights.  

During divorce proceedings, Capp became the object of San Diego Health and Human Services Agency inquiry. 

A county social worker contacted Capp to discuss his children and alleged substance abuse.  The children were interviewed without his consent.

Capp states that the social worker refused to answer his questions and terminated the interview.  Capp protested in writing to the social services agency. 

The San Diego family court dismissed a custody proceeding said to have been initiated by Capp’s wife at the social worker’s behest.  The family court denied the relief sought and chastised the agency.

A volley of correspondence and corrections ensued.  Capp was told allegations against him had been substantiated, then not, then told he was listed on a state registry concerning child abuse, then not.

Capp sued the social worker, social work supervisors, and the Health and Human Services Agency, claiming violations of his constitutional rights, in particular his right to be free from retaliation for exercising his First Amendment right to speak out against the proceedings initiated against him.

The Ninth Circuit reiterated the well established principle that speech protesting government action is constitutionally protection.  Retaliation for exercising that right is actionable. If an official act would inhibit an ordinary person from exercising First Amendment rights, the wrong may be reviewed in court. Thus, an injured person may succeed if it can be established that retaliation was a substantial or motivating factor in encouraging initiation of custody proceedings.  

Relief by means of a retaliation claim may be pursued even if it is recognized that the state and its social work are obliged to investigate claims of child abuse.  The presence of a legitimate motive will not, by itself, defeat the retaliation claim.

Where an individual can show that there was no substantiated concern for safety and that the individual was treated differently from others in similar circumstances, that evidence will permit an inference that retaliation prompted official action.

Even if Capp were able to show that retaliation for asserting his First Amendment rights to speak in protest of the child protective services agency’s actions, and that this was a motivating or substantial factor in encouraging Capp’s wife’s ex parte custody proceedings, the social workers would enjoy qualified immunity from suit unless they were found to have violated a clearly established constitutional right.

The Ninth Circuit recognized that a clearly established precedent recognized that the government cannot take action that would chill protected speech out of retaliatory animus for that speech.  Opinion, p. 22. Any government official would recognize that threatening legal sanctions or coercive action would violate the First Amendment and, as such, the social workers were not entitled to qualified immunity as a matter of law on appeal, although it could be explored further on remand.

The Ninth Circuit upheld dismissal of Fourth and Fourteenth Amendment claims as the question whether children are entitled to be free from unreasonable searches has not been clearly established and because, while the termination of parental rights could be seen as a violation of substantive due process rights, there is no right to be free from investigation.  As the Fourth Amendment claim failed, so too would the municipal liability claim, particularly where only a conclusory allegation was articulated.

JustLawful Observation:  The Ninth Circuit noted that its articulation of a potential claim in this case was quite close.  Nonetheless it would be unwise to read the decision as anything other than a cautionary tale for those charged with the administration of child protective services. 

Capp v. Cnty. of San Diego (9th Cir., 2019)

Federal Court Enjoins Enforcement of New Jersey’s Mandated Donor Disclosures of Dissemination of Political Speech

American for Prosperity v. Attorney General of New Jersey, No. 3:19-cv-14228 (D. N.J.) October 2, 2019.


New Jersey enacted a statute intended to render transparent the expenditure of money on political causes, requiring disclosure of donors’ identities where $3000 or more annually was given for “political communications.” 

The New Jersey governor refused to sign the bill as initially proposed.  While praising the goal of bringing “dark money” to light, the governor feared that the statute as drafted would infringe on First Amendment rights.

The New Jersey legislature then enacted an essentially identical but renumbered bill which the governor signed on the condition that changes be made to ensure conformity with the constitution and election laws.

No changes were made.

Americans for Prosperity, a group that speaks on diverse issues of public concern, sought and obtained an injunction against enforcement of the act.

Americans for Prosperity argued that the statute reached far beyond matters more appropriately reserved for electioneering.  The court agreed. The statutory mandate of disclosure of donor identify where speech is intended to influence elections goes too far and is too uncertain to be tolerated under the constitution and case law.

The perceived ills evoked the court’s pointed conference:  “Most constitutionally troubling to the Court is the way in which…the Act brings communications of purely factual political information into a disclosure and financial reporting regime historical limited to electioneering communications.”  Opinion, p. 38. 

Although the court confined its ruling to the facial challenge to the statute, the court opined that where politics as practiced can be observed to have invited threats, harassment, and loss of employment, it is not likely that the statuteuroy scheme would survive as-applied review.

Ams. for Prosperity v. Grewal (D. N.J.) October 2, 2019)

 

Badmouthing Police Officer Online, Absent Malice, May Not Demonstrate Bad Character Disqualifying Applicant from Licensure as Private Investigator

Gray v. State, No. 18-AP-65 (Kennebec Sup. Ct.) July 18, 2019.


Maine requires proof of character for licensure as a private investigator, as demonstrated through review by the state police.  In Gray’s case, the police were not well pleased with Gray’s online statements about a police officer, and disqualified him from licensure because he was seen as being unable to provide accurate accounts of matters. 

The Maine Superior Court applied the brakes to this position, observing that offering an opinion online is speech protected by the First Amendment.  In remanding for further administrative proceedings, the court concluded that If the posting were made with knowledge of its falsity or otherwise evinced actual malice, then consideration would be appropriate in the applicant’s character evaluation.  

Justlawful observation:  The judge sidestepped the quagmire that open season on online posting as character could invite while providing some guidance on evaluating troubling online behavior, while simultaneously avoiding what might very well turn out to be an epic feud between the police and the applicant for licensure. 

Gray v. State (Kennebec Sup. Ct.) July 18, 2019

Not Without Merit: Federal Court in New York Allows Student Accused of Sexual Assault to Proceed with Defamation Case

Goldman v. Reddington, No. 18-cv-3662 (E.D.N.Y.)  Motion to Dismiss denied September 27, 2019.


Alex Goldman and Katherine Reddington were students at Syracuse University whose overnight encounter following a party ended with Reddington sensing that something had gone awry, although she had no recollection of assault until after psychotherapy months later.  Reddington obtained a physical examination which produced no evidence of assault. The district attorney declined prosecution for lack of evidence.  

However, Syracuse University took note of Reddington’s Title IX allegations and expelled Goldman, who subsequently enrolled in another university and sought employment with an engineering firm.

Goldman’s complaint states that Reddington boasted of succeeding in her case against Goldman on campus at Syracuse and online, and that she either posted or republished online comments calling him a ‘monster.’  Those comments, which attracted attention and public commentary, were tagged to Goldman’s new school and employer.

Goldman was summarily fired from his job.

The United States District Court for the Eastern District of New York has rejected Reddington’s argument that Goldman failed to plead facts sufficient to establish defamation or tortious interference with business relations and declined to address Reddington’s argument that an injunction against further commentary would violate her First Amendment rights, as a motion to dismiss addresses the complaint and not the remedies sought.  

The court did not agree with Reddington’s defense that she had offered non-actionable opinion about Goldman where that opinion was premised upon defamatory accusations of criminal conduct.  

Reddington’s tagging or republication of online posts she claims did not originate with her are not insulated from liability, the court held, for republication of defamatory material is itself actionable. 

Moreover, Goldman could go forward on his claim of tortious interference with business relationships as the claim can be premised on defamation.

Goldman v. Reddington, No. 18-cv-3662 (E.D.N.Y.) September 27, 2019

 

Supreme Court Justices to Consider Reviewing Whether Transit Authority’s Ban on Religious Advertising on Buses Violates First Amendment

Archdiocese of Washington v. Washington Metropolitan Transit Authority, et al., No. 18-1455.  Scheduled for Conference October 1, 2019.


Today marks the Supreme Court’s official ‘back to work’ day, exemplified by the characterization of the first ensemble of the justices for the term as “the long conference,” in which the accumulated and prospective business before the Court demands extensive and intensive attention.

Among the many petitions of note is the Archdiocese of Washington’s (ADW) request that the Court grant its petition for certiorari to determine whether the Washington Metropolitan Transit Authority’s (WMATA) prohibition on religious advertisements on its buses violates the First Amendment. 

The dispute between the church and state entities arose in 2017, when WMATA refused to permit publication of a “Find the Perfect Gift” advertisement intended for public viewing in anticipation of the Christmas holiday.  Although similar advertisements had been accepted and were widely seen within the WMATA ridership area, in 2015 WMATA promulgated regulations banning “Issue” messages, including political and religious views. WMATA reasoned that such messages stirred controversy and management of public concerns in reviewing complaints consumed an inordinate amount of resources. 

The Archdiocese argues that the Court’s precedent compels the conclusion that WMATA rules impermissibly suppress speech, notwithstanding the opinion of the United States Court of Appeals for the District of Columbia Circuit to the contrary.

The Archdiocese argues that WMATA’s rules cannot survive review under either the First Amendment or the Religious Freedom Restoration Act.  As WMATA has admitted that it permits messages with secular messages but not with religious messages, WMATA has engaged in impermissible viewpoint discrimination.

The Archdiocese disputes  the position that the exclusion of the “subject” of religion avoids constitutional offense.  All manner of commentary about Christmas is permitted except religious commentary: this is exactly what is meant by viewpoint discrimination.

Particularly where religion enjoys specific constitutional protections, the imposition of speech burdens or prohibitions is unacceptable.  Adopting the government’s view would carry with it the potential to banish religious speech from all forums, a constitutionally unacceptable result.

The Washington Metropolitan Transit Authority disputes the Archdiocese’s argument, asserting that its regulation, intended to avoid controversy and its associated costs, is a reasonable viewpoint neutral subject limitation applicable to a non-public forum.  WMATA counters the church’s arguments about speech suppression with the prediction that if the regulation is struck down, then all advertisements opposing religion will be required to be accepted, to the detriment of the government’s ability to manage its transit authority and to the detriment of its ridership.  

WMATA cautions the court that adopting the Archdiocese’s position would destroy the forum analyses applied to permissible and impermissible restrictions on speech in public forums.  

WMATA argues that there is no Religious Freedom Restoration Act claim to be reviewed, as RFRA does not apply to the states, and WMATA is an inter-state project comprising of the District of Columbia, Maryland and Virginia. 

JustLawful Prognostication:  “Definitely maybe.”

The Court could grant certiorari if it determines it important to weed the thicket of controversy and misunderstanding that have attached to analyses of permissible speech limitations, including forum analyses.  There is little doubt that this is a significant issue on both speech and religious freedom points.

It is equally possible that, given that the appellate court decision in issue concerns preliminary relief and not a determination on the merits, that the Court will avoid tackling these important concepts in the absence of a more developed record.  

An eleventh hour tipping point may have emerged.  Just days before the long conference, the Archdiocese submitted a supplementary brief arguing that a recent decision by the Third Circuit striking down regulations not dissimilar from the WMATA rules creates a split in circuit decisions making more urgent the Supreme Court’s grant of certiorari.

Briefs in Support and Opposition to Petition for Certiorari

2019 05 19 Petition for Writ of Certiorari

2019 07 22 WMATA Opposition to Peittion for Certiorari

2019 08 06 Reply of Archdiocese v WMATA

2019 09 26 ADW Supplemental Brief in Support of Petition for Certiorari

Amicus Submissions

2019 06 20 Amicus Brief Foundation for Moral Law

2019 06 21 Amicus Brief Christian Legal Society et al

2019 06 21 Amicus Brief of National Association of Evangelicals et al

Opinions of D.C. Circuit and U.S.D.C. D.C.

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth. & Paul J. Wiedefeld, 910 F.3d 1248(Mem) (D.C. Cir., 2018)

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314 (D.C. Cir., 2018)

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 281 F. Supp. 3d 88 (D. D.C., 2017)

Opinion of the Third Circuit Court of Appeals

Ne. Pa. Freethought Soc’y v. Cnty. of Lackawanna Transit Sys.No. 18-2743 (3rd Cir., 2019)

 

Federal Court in Maryland Upholds Law Precluding Licensed Professionals from Practicing “Conversion” Therapy on Minors

Doyle, et al.  v. Hogan, et al., No. 19-cv-00190 (D. Md.) Motion to Dismiss Granted September 20, 2019.


A Maryland statute governing the provision of mental health services precludes provision of “conversion” therapy to minors.  Violation of the statute carries the risk of professional censure. 

“Conversion” therapy is the name applied to interventions intended to reorient an individual’s sexual identity, presumably from same sex or other preferences to heterosexual interest.  “Conversion” therapy has received substantial disapprobation from professional groups, and some professionals advocate that even if there were evidence to support the efficacy of conversion therapy, it should not be offered to minors.

Plaintiff Doyle asserted in federal court that the preclusion of delivery of conversion therapy to minors unconstitutionally impaired his speech rights and his religious liberty. 

The court disagreed, finding that while the conversion therapy involved speech, the administration of therapy was in fact conduct outside the realm of constitutional concern.  

Moreover, the court observed, the therapist’s freedom to speak of or about conversion therapy remains untouched by the statute.  A mental health services provider may provide information about or express an opinion about conversion therapy without fear. 

Central to the court’s determination was the inability of minors to provide informed consent for treatment. As the state interest in the health and well being of minors is at least substantial, if not compelling, imposing limitations on professional conduct to which the minor is legally unable to consent is not unreasonable.  In that minor children are not capable of autonomously exercising informed consent and in that others may exercise consent on their behalf, the state is not wrong in protecting minors from treatment to which they could not accede as a matter of law.

The court concluded that as therapist’s speech interests are not within the statute’s purview, neither were free exercise rights abridged, as the prohibition on “conversion” therapy for minors is a law of general applicability which does not substantially interfere with any belief or practice of religion.

The statute applies only to those who are licensed practitioners within Maryland.

Doyle v. Hogan (D. MD.) September 20, 2019

Ninth Circuit Asked to Reverse Dismissal of Complaint Alleging YouTube Is a Modern Public Square Subject to First Amendment Constraints Applicable to Government Entities

Prager University  v. Google, LLC and YouTube, LLC, No. 18-15712 (9th Cir.) Oral argument held August 27, 2019.  


Prager University (“PragerU”) is not a degree granting institution but an online forum for conservative thought which is often presented in short video presentations.  

Prager University has asked the Ninth Circuit Court of Appeals to reverse dismissal of its claim that YouTube LLC,  an internet platform wholly owned by Google, LLC that permits uploading of user video content, violates the First Amendment in its administration of the platform.  PragerU asserts that YouTube erred in removing some Prager University videos from view through YouTube’s user controlled “Restricted Mode.”  

As YouTube Looks and Acts Like a Government, YouTube Must Conform to First Amendment Constraints.  PragerU alleges that YouTube, which dominates the market for such platforms, has created and invited participation in a public forum and accordingly must be bound by the same constraints applicable to government entities by the First Amendment.  As the online equivalent of the public square, through its invitation and subsequent curation of its content, YouTube is engaged in state action subject to First Amendment limitations.  

PragerU objects not only to YouTube’s failure to conform itself to constitutional commands, but also to what it perceives to be unfair competition and devaluation of its product, as where its posts are inaccessible, advertisers will not work with PragerU, and revenues will be lost.  

Ownership Includes Discretion to Manage but Curation Does not a State Actor Make. YouTube asserts that in selecting sites suitable for viewer controlled discretion, YouTube  is properly exercising its own First Amendment rights as a private corporation.  

YouTube asserts that its invitation to the public to participate in an open viewer and content provider driven forum will not transform YouTube into a government entity engaged in state action.  

YouTube can, the corporation insists, be both open and retain a capacity to manage content postings according to its internal guidance and by agreement with users.  

YouTube denies that it is engaged in any behavior traditionally and exclusively reserved to government.  

YouTube stresses that to adopt PragerU’s position would be to upend platform and user behavior on the internet in unmanageable and undesirable ways, both practically and as a matter of legal analysis.

Impact as Envisioned by Industry and Advocacy Leaders.  The Electronic Frontier Foundation (“EFF”), which advocates for issues arising in new technology, argues as amicus that user interests will not be served by removing the First Amendment protections enjoyed by platforms and imposing upon them the constraints inhibiting government interference with speech.  

The EFF notes that there would be no conceivable ‘cure’ for the issues that would arise if open forums such as YouTube were deemed to be public forums.  Permitting moderation and curation would only shift review standards from those applied to public forums to those applied to limited public forums. Legal analysis would be impossible, as corporations are not involved in serving compelling state interests.  

The EFF disputes the central argument made by PragerU and asks the Ninth Circuit to recognize that the curation of user or content provider speech is not an inherently governmental function sufficient to support a finding that the YouTube platform is engaged in state action.

Moreover, the EFF stresses that Section 230 of the Communications Decency Act of 1996 (“Section 230”) insulates platform providers from liability to third parties for user generated content and from liability to content providers for rejecting, blocking or removing content.  

Concerns About Platform Providers’ Behavior are Legitimate and Must Be Addressed.  The EFF recognizes the importance of concerns about inequitable conduct by platform providers and notes the seriousness of claims that providers have banned or removed content without justification to the detriment of users and content providers.  The EFF notes that society in general benefits from freedom from speech suppression even if some speech provokes discomfort.

The EFF urges that YouTube and other platforms adopt a human rights frame of reference in curating content. It is most important that users have an active role in moderation and that providers behave with accountability and transparency.  Providers should publish data about what it removes, be clear in its user agreements and guidance, and permit appeals from adverse determinations.

Self-Governance, If Assured, Must be Assiduously Pursued.  The EFF cautions that it is not enough that YouTube may retain the right to permit or circumscribe content according to its standards:  it must make an effort to do so diligently. 

The End of the Internet. The Computer and Communications Industry Association (“CCIA”) as amicus urges the Ninth Circuit to reject the notion that YouTube became a public forum or a government or government controlled entity because of YouTube’s encouragement of free expression.  That encouragement is not unlimited and is cabined by YouTube’s Terms of Service and Community Guidelines. YouTube’s curation and moderation does not make it a state actor, as it does not behave as or provide a service ordinarily supplied by the government.

The CCIA cautions against the adverse impact of subjecting online platforms to First Amendment Constraints rather that permitting the platforms to enjoy First Amendment protections.  The internet as it now functions would be markedly diminished by the application of the state actor doctrine, as substantial content removal would be required and publication of all but unprotected speech would be required in open forums. 

Contrary to PragerU’s arguments, PragerU cannot succeed establishing that what YouTube does is an activity traditionally and exclusively reserved to the state, for no such activity has ever existed before.  

Neither can PragerU succeed in asserting that any content regulation on what PragerU defines as a public forum will make YouTube a state actor if YouTube is not operating a public forum at all. 

This crucial (if not fatal) circularity cannot be overcome by reliance on precedent in which status as a public forum was not in issue.  Equally importantly, PragerU cannot succeed in relying on on the “company town” holding of Marsh v. Alabama, 326 U.S. 501 (1946), as almost all subsequent considerations of Marsh have limited its holding to those few circumstances in which a private entity essentially functions as a government.  

Neither can “company town” status be found to exist through the words YouTube chooses to hold itself out to the public.  Self-description or an invitation to the public to participate in open expression will not, without more, work the alchemy of transforming a private entity into a government.  

In point of fact, CCIA suggests, YouTube’s retention of control of material placed on its platforms demonstrates that YouTube’s invitation and representations are not unlimited.

Inapposite Dicta. Recent Supreme Court characterization of the internet as a modern public square is more rhetorical than substantive, and is not helpful to PragerU in that the issue concerned an action taken by the state respecting social media, not social media acting as the state. 

Imposing the Constraints of One First Amendment Premise Would Remove the Protection of the Corollary First Amendment Promise.  CCIA observes that imposition on YouTube of the First Amendment standards imposed on the government would violate the First Amendment protections guaranteed to private entities by the First Amendment.  To do so would cause YouTube to lose almost all its ability to curate its platform, and would eviscerate the protection afforded by Section 230.

Bad for Business. The United States Chamber of Commerce (“Chamber of Commerce”), the nation’s largest business organization, fears that businesses would be harmed by a determination in PragerU’s favor.  Binding businesses to First Amendment constraints is only appropriate where the business performs “traditionally exclusively” government acts, and that is not true here. The First Amendment binds the government, has not been found to bind private entities, and should not be found to do so now.  User run video sharing has never been a state function.  

Marsh is inapposite:  YouTube is not governing a town.  No court has ever held that an entity that opens a space for public expression becomes subject to the restraints imposed on the  government by the First Amendment.  

Upending Application of the Law.  Holding in favor of PragerU would disrupt current First Amendment analysis, which requires that any regulation support a government interest.  Substituting corporate for government interest would impermissibly expand the First Amendment and require analysis of business interests that courts are ill-suited to make.  

Harm to Business Owners Likely if PragerU Prevails.If businesses were required to submit to standards reserved to the government, it is likely that they would move to limit their online market presence, which might not insulate them from liability but which likely would be economically costly.  “Ownership” of a site would not remain with proprietors where users could direct what is posted. This would contravene business owners’ First Amendment rights, not only of speech but of association. Other attempts at limiting exposure, such as limiting activity so as not to be perceived as a public forum, would also likely limit market activity and advertising revenues. 

JustLawful Prognostication.  Although not impossible, it is not probable that a federal appellate court would, of its own accord, enter judgment in PragerU’s favor except if some grounds for reversal and remand could be found.  The issues are simply too big to manage through one case and likely the courts are not the best branch of the government with which to accomplish PragerU’s ends.  

Leaving aside the massive impact a decision in favor of the appellant could provoke, the arguments presented by PragerU may be too expansive to countenance, as PragerU relies on the notion that because YouTube describes itself as an open forum inviting free expression it therefore becomes a public forum for First Amendment purposes.

Prager University v. Google and YouTube Appellant Brief

Prager University v. Google and YouTube Appellee Brief

Prager University v. Google and YouTube Appellant’s Reply Brief

Prager University v. Google and YouTube EFF Amicus Brief

Prager University v. Google and YouTube Computer and Communications Industry Association Amicus Brief

Prager University v. Google and YouTube Chamber of Commerce Amicus Brief

 

Media Giants Collectively Resist Maine’s Plan to Offer Cable Consumers A La Carte Services

Comcast of Maine/New Hampshire, et al. v. Governor of Maine, et al., No. 19-cv-410 (D. Me).  Complaint filed September 6, 2019.


Maine enacted a statute that requires cable service providers to offer single servings of media to consumers.  Media giants, whether in the provision of technology or content, or a mix of both, denounce this plan as an impermissible encroachment on the federal scheme governing media nationally and as an impermissible imposition of content restriction in violation of the corporations’ First Amendment rights.

Cable provider Comcast, joined by news and media networks, has filed an action against Maine and several of its townships to obtain declaratory and injunctive relief.

Preemption Claim.  Federal law governing communications expressly preempts state law in the regulation of cable services.  Even if the state law were not specifically preempted, the Maine law would fail because of conflict preemption.  A carrier cannot comply with the federal scheme, which recognizes the provision of services in ‘tiers’ from basic channels to more enhanced, and comply with the selective services contemplated by Maine.  

First Amendment Claim.  The carriers and providers assert that they negotiate broadcast and copyright and packaging agreements in contemplation of the tiers of service hierarchy.  These choices reflect the exercise of constitutionally recognized and protected First Amendment Speech rights. 

The Maine statute, by compelling compliance with a government scheme for service provision not bargained for or agreed upon by broadcasters and content providers, encroaches upon their exercise of speech rights. 

The statute cannot serve any state interest as the statute is preempted by federal law, plaintiffs aver.  Even if it were not, the state cannot demonstrate any compelling, or even legitimate, interest in mandating enhanced access to programming where currently thousands of choices are available through cable services and through online sources such as Netflix and Amazon Prime Video.  

Where the Maine statute materially and substantially disrupts the conduct of negotiations and contractual obligations as it now exists, Maine cannot demonstrate that its interjection of state law requirements into the federally regulated landscape is sufficiently narrowly tailored to meet the state’s purported end.

Briefing will continue throughout October, with oral argument on the request to enjoin the state to be held on November 1, 2019. 

This case will no doubt be closely watched by both industry, government, and consumer groups, for as the old adage has it, “as Maine goes…..”

Briefing Schedule:

Response to Motion for Preliminary Injunction due October 7, 2019

Reply to Response to Motion for Preliminary Injunction due October 15, 2019

Motion to Dismiss due October 7, 2019

Response to Motion to Dismiss due October 15, 2019

Reply to Motion to Dismiss due October 22, 2019

Defendants’ Responses to Motions for Leave to File Amicus Briefs due October 7, 2019

Plaintiffs’ Responses to Motions for Leave to File Amicus Briefs due October 15, 2019

Replies to Motions for Leave to File Amicus Briefs due October 22, 2019

Comcast v. Maine_Complaint (U.S.D.C. Me.) September 6, 2019

 

 

 

 

 

Judicial Encroachment on Speech Rights Must Be Articulated with Particularity

Bank of Hope v. Chon, No. 18-1567 (3d Cir.) September 17, 2019.


The trial court in this embezzlement case erred in failing to articulate why speech suppression was necessary to the fair and orderly proceeding of the case.  The Court’s order forbidding defendant from contacting bank shareholders to garner support was entered without the court’s stating its reason for so doing, and failed to consider less restrictive alternatives, all in violation of defendant’s First Amendment rights.

Bank of Hope v. Chon (3rd Cir., 2019)

Wrongful Termination Case Cannot Proceed in Federal Court Where No First Amendment Rights Attach to Private Employment Disputes and Defense Cannot Confer Jurisdiction Otherwise Lacking

Cox v. Bishop England High School, et al., No. 2:19-cv-002202 (D. S.C.) September 17 2019.


A First Amendment claim regarding wrongful termination is insufficient to confer federal jurisdiction over the case, as Congress has not extended First Amendment protections to private workplaces.  Under the well-pleaded complaint rule, the assertion of defenses grounded in federal constitutional law will not, without more,transform a state law complaint into a federal one.

Cox v. Bishop England High Sch. (D. S.C., 2019)

Compelling Convict to Disclose Sexual History Within State Interest in Public Safety

State v. Alvarez, No. No. 35567-5-III, Wash. Ct. App., September 17, 2019. (Unpublished).


Alvarez, convicted of rape of a child, cannot prevail on a his claim that the requirement that he notify the state of his current sexual partners and disclose his sexual crimes to partners violates his First Amendment rights. The state may impose restrictions in order to accomplish lawful ends.  Alvarez is not restricted in his freedom of association, although his privacy is affected.  That privacy interest may be compromised where the state has a legitimate interest in alerting the public about potentially dangerous individuals.  The disclosures required reasonably serve that end.

State v. Alvarez (Wash. App., 2019)

Litigants’ Agreement Cannot Limit Public Access to Courts

Kentucky v. Marathon Petroleum Company, No. 3:15-cv-354 (W.D. Ky.) September 17, 2019.


First Amendment and common law rights of access cannot be waived by any party’s failure to object to a motion to seal or by the parties’ consent to place records under seal. Access rights rest with the public and may be limited in the court’s discretion for good cause, including the potential of disclosure of corporate agreements to impede corporate contract negotiations.

Kentuchy v. Marathon Petroleum Co. (W.D. Ky., 2019)

 

 

“Fake” News, Real Consequences: Circus of Suits Against Media Concerning Seth Rich Murder March Along

Joel Rich and Mary Rich v. Fox News Network, LLC, Malia Zimmerman, and Ed Butowsky, No. 18-2321-cv (2nd Cir.).  District Court reversed and case remanded September 13, 2019; Ed Butowsky v. Folkenflik, NPR, Inc., NPR.ORG, et al, No. 4:18-cv-0442 (E.D.Tex.).  Magistrate’s Recommendation to Deny Motion to Dismiss adopted August 7, 2019; Wheeler v. Twenty-First Century Fox, et al., No. 17-cv-5807, 322 F. Supp. 3d 445 (S.D.N.Y. 2018).


News, and News and Speculation About the News. The murder of Democratic National Committee (DNC) staff member Seth Rich in 2016 precipitated an explosion of rumors about Rich’s death, including speculation that he had divulged DNC emails and strategies to non-mainstream media entity WikiLeaks.  

Mainstream media joined in the fray, exploring and elaborating in ways that Rich’s parents assert caused them emotional damage.  Fox News and its reporter and commentator approached Rich’s grieving and aggrieved parents, who were disturbed that their son’s death would sully his name, and induced  the Riches to hire private investigator Ed Wheeler, recommended and paid for by Butowsky.  

As a condition of his engagement, Wheeler promised not to disclose any information about his investigation absent the Riches’ consent.

Nonetheless it is alleged that Butowsky and Wheeler worked together, meeting with high level Washington communications staff and promising to keep the White House informed of their investigation.  

In anticipation of publication, Fox messaged Wheeler about intelligence sources and pressures to publish, urging Wheeler to become the public source of the WikiLeaks story.  Fox not only published a story using Wheeler as a source, but Fox also recounted Wheeler’s breach of his agreement with the distraught parents. Wheeler next said that his sources were Fox reporter Malia Zimmerman and Ed Butowsky.  

Butowsky is said to have continued to contact the Riches, allegedly to inform them that Zimmerman had located their son’s killer.  Butowsky appeared in the media with commentary about the WikiLeaks allegations.

The New York Litigation. The Riches sued Fox, its reporters and its commentator in the Southern District of New York.  The Second Circuit Court of Appeals recently reinstated the Riches’ claims, holding that it is of no consequence that the parents’ action for intentional infliction of emotional distress can be seen as a proxy for the defamation action that died with their son.  

Seriatim As Serious as Single Incident Harm. The federal appellate court rejected the notion that the intentional infliction of emotional distress must be established by a single incident:  harms that unfold serially, perhaps not sufficient individually to reach the high bar of harm required to establish intentional infliction of emotional distress, may cumulatively be so damaging as to be legally cognizable. 

As the known existence of a valid contract between Wheeler and the Riches was not contested, interference occurring before and continuing after formation of the agreement does not preclude establishing but-for causation.  

Privilege Preclusion Inapt. The court declined to opine on whether newsgathering and its exigencies could excuse interference with contractual relations, observing that what the court perceived as a malicious act — providing an investigator ostensibly for the bereaved but in reality for the media — would not be susceptible to establishing a justification for interference in the Rich – Wheeler contract. 

More to Come. Media fascination with the death of Seth Rich and its sequelae did not end with the circular accounts issued by Fox, its reporter and commentator, and its investigator.  

Wheeler, threatened with suit by the Riches, sued multiple media defendants and associates for defamation, including Butowsky, and in particular alleged that Fox’s reporter published fabricated quotations attributed to Wheeler.  Wheeler did not meet with success:  his case in the Southern District of New York was dismissed at the pleading stage.

The Texas Litigation. Butowsky sued National Public Radio (NPR) and its reporter.   Butowsky did not pursue the media law firm and Wheeler’s counsel, who Butowsky avers is engaged in a legal campaign against Fox. 

Butowsky’s complaint elaborates upon allegations in the Rich complaint that interest and involvement in the investigation of Rich’s death reached the highest levels of the executive branch. 

Butowsky points to NPR’s reporter’s participation in an interview that offered the reporter’s views on the stories, including noting Fox’s retraction and offering journalistic lessons from the story.

Dismissal Not Warranted Where Privilege May Not Be Present. A magistrate, and later a judge in the U.S.D.C. for the Eastern District of Texas denied the media defendants’ motion to dismiss, observing that the fair report and/or fair comment privileges that y serve as a defense to defamation would not permit dismissal as a matter of law, particularly where the privilege cannot be conferred by the media of its own accord by commenting on its own reporting.  Not only is this form of self-insulation not permissible, where there is malice, the protections of these reporting privileges may be lost.

The Heart of the Matter Is What is at Stake. The magistrate observed that while the burden remains on the plaintiff to establish that any report was false, this may be done by establishing not that each statement published was false but that in the aggregate or in the manner of presentation, the “gist” of the publication was not substantially true.

Opinion Not a “Get Out of Jail Free” Card. Defamation may be intrinsic or extrinsic, explicit or implicit, and the assertion that opinion is not defamatory will not prevail if the underlying statements said to support the opinion are false or recklessly published. 

The Magistrate underscored the limitations on the opinion exemption from defamation, observing that implications from false assertions of fact are not insulated simply because an opinion is wrapped around them.

Impressions Count. Although a publisher cannot be liable for every inference that might be drawn from a story, that principle does not hold where a publication in its entirely creates a particular communicative impression.  The arrangement and presentation of information factors into the analysis.

No Doubt About Who They Had in Mind. It does not matter that the subject of a defamatory statement is not explicitly mentioned if it is inescapable that the defamed person is the subject of the report.

Public Figure or Limited Public Figure Status Not Yet Established. The Magistrate was not persuaded that on motion to dismiss that the defendants could establish that Butowsky, a well known financial expert and media commentator in his own right, is a limited public figure for purposes of application of the higher standards of proof that apply to such a person.  Nonetheless, the complaint provides allegations sufficient to plead malice.

Investigation, Failure to Investigate, and Bias. Plaintiff’s assertion that NPR adopted and published a media lawyers’ narrative without verification and with information that would cast that narrative in doubt, could establish malice. 

The Magistrate stressed that a failure to investigate alone would not establish malcie, but turning a blind eye to pertinent information could.  This might be shown by preselecting information conforming to a particular story, having preconceived, ideas, repetition of known false ideas, or other conduct proceeding from doubtful material in purposive avoidance of the truth.

Failure to Demand Retraction Will Not Defeat Claim.The Magistrate rejected the assertion that the state’s Defamation Mitigation Act precludes recovery.  The act’s requirement that plaintiff demand retraction before suing for defamation is a limitation on punitive damages, not a bar suit, particularly if the sense is that damage is so extensive that retraction would be unavailing. 

The Story Continues in Courts.  Seth Rich’s surviving parents and Butowsky’s cases proceed in New York and Texas at this writing.  Wheeler’s case against Twenty First Century Fox was dismissed in August, 2018, and there is no record of appeal having been taken.  The Southern District of New York found that Wheeler had no claim for defamation, as none of the statements in issue could be shown to be demonstrably false. 

Rich v. Fox News Network, LLC, et al. (2nd Cir.)

Butowsky v. Folkenflik, NPR, at al. (E.D. Tex.)

Wheeler v. Twenty-First Century Fox, 322 F.Supp.3d 445 (S.D. N.Y., 2018)

The Constitutional and Cultural Clash Between Compelled Speech and Commercial Equanimity Continues: Arizona Holds Municipal Human Rights Act Unconstitutional As Applied to E-Commerce Custom-Made Wedding Invitations and Recognizes Claim Under State Free Exercise of Religion Act

Brush & Nib, LLC v. Phoenix, No. 18-cv-0176-PR. (Az.) September 16, 2019.


The Arizona Supreme Court has concluded that the Phoenix ordinance requiring equal treatment for all persons cannot be applied to compel the creation of wedding invitations for same-sex couples in view of the protections afforded pure speech and those afforded sincerely held religious beliefs under state law. 

A Product-Specific Decision. The court recognized the design and handmade productions of wedding invitations to be artistic creations protected as pure speech while refusing to opine concerning other aspects of plaintiffs’ business.  

An As-Applied Challenge. A portion of the municipal law that forbade statements that persons within protected classes would be unwelcome in a place of public accommodation was declared unconstitutionally vague by the Arizona Court of Appeals, leaving only an as-applied challenge before the Supreme Court.

Speech Doctrines, Protections, and Their Limits. The court noted that although the Arizona Constitution offers greater speech protections than does the United States Constitution, the distinction does not disturb the result in this case. 

The “compelled speech” doctrine developed by the United States Supreme Court establishes that the First Amendment forbids the government from demanding that an individual speak where to do so would offend his deepest beliefs.  This protection of autonomy and against compulsion extends to any requirement that an individual adopt the speech of others where to do so would offend his deepest beliefs.  

Not all speech enjoys the protection of the “compelled speech” doctrine, but “pure speech,” which includes original artwork, is protected by the First Amendment because of its self-expressive nature and not because of the medium chosen or the presence or absence of a particular message.

While a business does not forfeit First Amendment protections because it operates for profit, neither does it enjoy a blanket exemption from the laws generally applicable to commerce because the business involves speech or creative expression.  

Accordingly, plaintiffs’ business is not insulated by the First Amendment, but the particular custom made designs and products in issue do enjoy constitutional protection. 

Artistic Expression, Not Discriminatory Conduct. The court rejected the city’s argument that discriminatory conduct and not protected creation were in issue, and in particular rejected the suggestion that the plaintiffs’ position is a proxy for discrimination, for even if some protected groups were affected more than others by plaintiffs’ position, that does not cause plaintiffs’ to forfeit First Amendment protections.  Plaintiffs have no issue with same sex customers but aver that same sex marriage falls outside the Christian faith that is central to their enterprise.

It does not matter, the majority observed, that the creative process is collaborative with the customer or that no “endorsement” of same sex marriage is involved.

Ordinance Not Content Neutral As Applied. The court concluded that the ordinance, while content neutral, became content based as applied, and that, notwithstanding that a compelling state interest in fairness and equality in commerce are embodied in the ordinance, the breadth of the statute was fatal when strict scrutiny analysis was undertaken.  An ordinance aimed at inhibiting discriminatory conduct which includes speech within its sweep cannot be said to be sufficiently narrowly tailored to the government goal to be upheld. Speech regulations, where permissible, must be approached as “minimums, not maximums”

A Pointed Clash.  The majority chastened the dissenting judges for what it perceived to be hyperbolic revivification of history and stressed that the court’s conclusions in no way may be seen as permitting any merchant to fail to comply with the Phoenix public accommodations law. 

Religious Free Exercise Claim Valid. The majority concluded that plaintiffs articulated a viable claim under the state religious freedom act which, like its federal analog, provides that an individual may be exempted from a generally applicable law if compliance with the law would unduly burden the individual’s religious beliefs and the state may otherwise accomplish its legitimate ends.  

Plaintiffs are inarguably Christian and the compelled creation of work contrary to their beliefs would burden the exercise of their faith, the court observed.  The state would not similarly suffer if plaintiffs were exempted, for the surviving provisions of the public accommodations ordinance remain undisturbed.  

Conformity to Uniformity Not Outcome-Determinative. The need for uniformity in the administration of the law cannot be permitted to deny essential First Amendment rights, and the city’s speculation about flood-tides of applications for exemption is hypothetical and, in any case, it is the obligation of the courts and administrative bodies to make the sorts of determinations about claims that permitting exemptions would require.

Phoenix Not Without Armature. Neither has the city been forced to forfeit its general interest in public welfare at the altar of personal religious liberty, the majority observed, for the city may contest the sincerity of any asserted religious belief, may challenge any religious assertions as pretextual and reflective of an overarching discriminatory intent.  Finally, the city may show that any exemption contemplated would create too great a burden on the city to be permissible.

Litigative Burden Ameliorated. That plaintiffs have prevailed on their state free exercise law  claim entitles them to an award of attorneys’ fees.

Concurrence Cheers State Constitutional Protections.  One judge wrote separately to encourage the celebration of Arizona’s constitutional speech protections, which are thought to be more extensive than those of the U.S. Constitution.  The concurrence urged that the court consider its own state’s constitution rather than too readily looking to federal decisions. 

Errors Noted and Civil Rights Regression Decried. Dissenting judges have opined that the majority has erred in permitting anodyne and uniform wedding invitations providing the same information for all customers to become art subject to First Amendment protection and to permit discrimination on the basis of sexual orientation.  

Going Too Far to No Good End. The dissent questioned the majority’s need to reach constitutional questions where they need not be in addressing the application of this municipal ordinance.  

There Are No Less Restrictive Means. The dissent stressed that at issue is a content neutral conduct regulation for which no less restrictive means of application can be found:  either merchants are precluded from discriminating on the basis of protected status, or they are not. If they are permitted to discriminate, the statute fails of its essential — and recognized — compelling end. 

Infected with Bad Thinking. The dissent scorned the majority for embracing the pernicious idea that a refusal to sell to certain customers is protected expression and that the public interest in equality is insufficient to require a business to serve all customers where an element of expression is involved. 

Equanimity and Equal Treatment Cannot Be A Substantial Burden. The dissent noted that the concept of a “substantial burden” on religious exercise is not clearly defined, but found it difficult to imagine that such a burden could be found where enforcement of the ordinance would require only that the plaintiffs make and sell the same product for same sex couples as it does for others.

In the Business of Serving the Public, Not the Business Owners Beliefs. Businesses cannot be permitted to discriminate based on the business owners’ views, or the entire public accommodations law scheme will be defeated.  

Offering the Same to All Cannot Be So Different. A dissenting judge writing separately takes issue with the idea that any speech is being compelled where the plaintiffs are being asked only to create  the same product for all, and also observes that no part of the plaintiffs’ beliefs are being burdened by being asked to treat all customers equally. Plaintiffs are not facing a forced choice between their beliefs and their livelihood, as they are not being asked to support same sex marriage, only to treat all customers equally.  

Suggestive of Diametrically Opposed Weltanschauungs. The majority and the dissenting justices in this case appear to hold fundamentally different intellectual and legal constructs of the issues central to the case, with each compelling the exact opposite ordering of constitutional and statutory priorities. The majority holds sacrosanct the principles of individual autonomy and freedom from government interference in speech, expression and faith.  The dissent does not see this case as one in which the government is compelling the plaintiffs to act in disharmony with their beliefs, but one in which the plaintiffs seek to conduct their business in a way that discriminates against certain customers,which conduct cannot enjoy First Amendment protection. For the dissenting justices, the recognition of plaintiffs’ claims undermines the primacy of the protections accorded to equal consideration for all in the marketplace.

Brush & Nib, LLC, et al. v. City of Phoenix, S.Ct. AZ, September 16, 2019

Video of Oral Argument in Brush & Nib LLC v. City of Phoenix

Court of Appeals Opinion:

Brush & Nib LLC v. City of Phoenix, 1 CA-CV 16-0602

 

 

 

 

 

Where Compelled Speech Clashes with Commercial Comity, Eighth Circuit Concludes State Anti-Discrimination Law Unconstitutionally Impairs Videographers’ Rights.

Telescope Media Group, et al. v. Comm’r, Minnesota Dept. of Human Rights, No. 17-3352 (8th Cir.) August 23, 2019.


Two Minnesota videographers sought to enjoin enforcement of the state’s anti-discrimination law, which would require them to serve all couples equally without regard to sexual orientation. The Eighth Circuit has vacated denial of injunctive relief, concluding that the anti-discrimination law is a content based regulation of expressive speech. The court held that First Amendment precludes the state from compelling or inhibiting speech: even anti-discrimination laws must comport with the Constitution.

It does not matter if the speech in issue annoys, nor does the form of enterprise disturb the result that the making of videos is constitutionally protected expressive speech, the court noted. It does not matter that the human rights act does not mention speech on its face. The statute demands that if plaintiffs decide to speak on one topic, they must then speak on a topic they otherwise would not, and in a manner contrary to their views. The plaintiffs’ alternative is to withdraw from the marketplace of ideas, itself a restriction on speech.

The federal appellate court agreed that the state interest in asserting equal access to public accommodations and services is compelling. Nonetheless, the First Amendment protections afforded speech impact the analysis. Discriminatory acts may be prohibited but speech itself is not a public accommodation, nor can anti-discrimination laws provide access to participate in others’ speech.

The Eighth Circuit worried that the speech policies compelled by the anti-discrimination statutes would have no stopping point. The court rejected the notion that the statute regulated conduct and only incidentally burdened speech, which would would have permitted the statute to survive strict scrutiny.

A disclaimer would be insufficient to cure the harm of compelled speech, as it would require affirming yet denying the state’s policy simultaneously. And other permissible prohibitions are easily distinguished: denial of service on the basis of protected status is an act, not speech, and is subject to state intervention.

The court extended its analysis to recognize the hybrid nature of the plaintiff’s Free Exercise claim. More than a neutral law of general applicability is involved where communicative activity is inextricably a part of a Free Exercise claim. The court observed that ultimately the hybrid rights theory would make no difference, because the speech claim is already subject to strict scrutiny, but the hybrid rights claim has been articulated and may go forward.

The dissent observed that in no instance does the law extend “affirmative constitutional

protections” to private discrimination. The Supreme Court has recognized that the state may limit, through its general laws, the First Amendment rights of a business owner who serves the public.

The dissent rejected the compelled speech analysis and insisted that speech messages — or silence — remain available as ever, but plaintiffs may not serve only some sexual orientations and not others. Any expressive aspect of the service is not sufficient to change this general law into a content based regulation, nor can this “expression” be allowed to permit discrimination.

Plaintiffs have conceded that their videography business is a public accommodation subject to the statute, and plaintiffs for profit enterprise is not subject to religious exemption. Plaintiffs cannot define their business to include discrimination, particularly where the focus of the public accommodation laws is on the customer, not the merchant. It is immaterial that a particular behavior — marriage — is involved, as characteristics as well as classes are protected interests. Offering some, but not all, services to same sex couples remains discriminatory. It does not matter that plaintiff’s concern is only with same sex marriage and not with same sex preferences in general.

The dissent rejected the content regulation analysis and pointed out that precedent concerns the application of strict scrutiny to a particular activity that would result in a speech burden In such cases, the speaker’s conduct is of concern, but that cannot be the case here, where the customer’s expression in the wedding videos is the primary message, even if the plaintiffs exercise editorial control over their videos.

The dissent dismissed the Free Exercise claim by pointing out that the plaintiffs’ beliefs are undisturbed: only their freedom to act is subject to regulation, and only incidentally so, and they are not free to import their beliefs into the statutes that bind others.

The dissent noted that precedent is clear that anti-discrimination statutes do not impermissibly burden religion and that the “hybrid” claim theory advanced by the court services from dicta recognizing a possible claim: it enjoys no legal force. Even if it did, as there is no Free Speech claim, there is no hybrid rights claim.

Telescope Media Grp. v. Lucero (8th Cir., 2019)

Calamitous Course Correction: Defamation Plaintiff Avers that Huffington Post’s Clarification Only Made Matters Worse

Evans v. The Huffington Post and Ashley Feinberg, No. 1:19-cv-00536 (S.D. Miss.).  Complaint filed August 21, 2019. Defendants’ answer due October 16, 2019.


In September, 2018, the Huffington Post and its reporter, Ashley Feinberg, clamoring for background on the appointment and confirmation of Brett Kavanaugh to the United States Supreme Court, published an article describing a raucous, drug-fueled atmosphere at the elite Georgetown Preparatory School that Kavanaugh had attended. 

The Huffington Post article intimated that the students’ lives were so degenerate as to implicate two of them, including the plaintiff, then a Georgetown Preparatory School student, in the 1984 overdose death of David Kennedy, son of Robert Kennedy, in Palm Beach, Florida.

The Huffington Post asserted that Derrick Evans, today a teacher and social and environmental justice advocate, was involved in procuring the drugs that killed Kennedy. 

When Douglas Kennedy, David Kennedy’s brother, who was said to have been with Evans in Florida, insisted on retraction, the Huffington Post agreed and complied, sanitizing the statements about Kennedy, but leaving — and allegedly underscoring — the statements about Evans.

The published “correction” was compounded by indicating that support for its statements could be found in an affidavit said to be in the possession of the New York Times.  Evans asserts that no such affidavit exists and that in fact he participated in the identification and arrest of the individuals who actually provided drugs to David Kennedy.

Further corrections referenced “mischaracterization” of individuals’ involvement.  Evans claims this correction is not sufficient because, in the absence of any involvement in David Kennedy’s death, there can be no mischaracterization.

The story was further refined and references removed.

Evans maintains that the publication accused him of criminal activity, making it libel per se.  Evans alleges that Huffington Post’s failure to sufficiently confirm or disconfirm the statements published made the publication malicious and with willful disregard of the truth or falsity of the statements.

Defendants are to answer on October 16.  Until then, and perhaps always, editors may do well not to place reliance on any purported curative powers of corrections.

Evans v. Huffington Post and Feinberg_Complaint August 21, 2019 (S.D. Miss.)

 

Perhaps That Editorial Wasn’t Fit to Print: Vacating Federal Trial Court’s Dismissal, Second Circuit Permits Sarah Palin to Proceed with Defamation Action Against the New York Times

Palin v. The New York Times Company, No. 17-3801-cv (August 6, 2019).


Former vice-presidential candidate and Alaska governor Sarah Palin sued the New York Times for defamation subsequent to the newspaper’s publication of an editorial on the occasion of the 2017 shooting of Congressman Steve Scalise.  The New York Times revived the discredited allegation that Palin’s Political Action Committee’s (PAC’s) use of cross-hairs on a campaign map was an incitement to political violence, precipitating the 2011 shooting of Arizona Congresswoman Gabriel Giffords.

The United States Court of Appeals for the Second Circuit has vacated dismissal of Palin’s complaint, which may, as amended, now proceed to resolution in the federal court in the Southern District of New York.

The basis for the appellate panel’s determination was largely procedural but not to be taken lightly on that account.  The court of appeals observed that the trial court adduced evidence in a hearing intended to clarify whether Palin had pleaded “actual malice” with sufficiency to withstand dismissal.  In ruling on the defendant newspaper’s motion to dismiss, the judge went beyond matters in the pleadings and, usurping what would ordinarily be a jury function, found facts in favor of the New York Times.  Even had the trial court wished to convert the motion to dismiss into one for summary judgment, this was not done and could not with integrity be done, the court of appeals found, where Palin had not had a fair opportunity to present material supporting her claim.

The bounds of procedural fairness that the Second Circuit has outlined will keep courts and counsel on their toes, but the significance of permitting further proceedings touches on two significant points of the law of defamation that routinely form impenetrable barriers to plaintiff’s success.

Palin is a public figure, and as such she cannot prevail without showing that the allegedly defamatory publication was made with “actual malice,” defined as knowing or reckless disregard of the truth of the statement in issue.  The Second Circuit was unwilling to permit dismissal to stand without exploration of Palin’s support for the position that the New York Times had knowledge that the assertions about her PAC had been discredited.  The sufficiency of review of material on hand that dispelled the ‘incitement’ allegation before publication and any influence on Times’ editorial writer’s arising from family ties to a gun control advocate are matters of credibility for a jury’s determination.

Taken as a whole, the appeals court found that to the extent that these circumstances could give rise to an inference of recklessness, a plausible claim had been stated, and the trial court’s inclination toward the plausibility of the other party is not a consideration in evaluating the sufficiency of the claim.

Of equal significance is that the publication in question is an editorial.  Definitionally, an editorial proffers opinion, and definitionally, an action for defamation cannot be brought to challenge opinions.  Such actions may succeed only where opinion is grounded in or interwoven with falsehoods.  The Second Circuit’s willingness to entertain the notion that linking Palin to the 2011 shooting involved more than opinion permits some latitude in assessing what is necessary to demonstrate “provable fact” that would separate actionable factual defamation from mere opinion.

It is of course unknown whether Palin will prevail in her renewed proceedings.  Even if she does not, however, the claim itself, concerning an opinion published about a public figure, serves notice to publishers that the impenetrability of press protections is not as inviolable as it has heretofore been believed to be.

Palin v. New York Times 2nd Cir. August 6, 2019

 

 

 

 

Ill Gotten? No Problem! First Amendment Protects Publication of Purloined Democratic National Committee Information, Southern District of New York Concludes

Democratic National Committee v. Russian Federation, et al, No. 18-cv-3501 (JGK) (S.D.N.Y. July 30, 2019).


There are few — if any — freedoms more deeply cherished in the United States than that of the press to publish, as the New York Times has avowed since 1897, “All the News That’s Fit to Print.” In matters of public interest, unless a publisher has knowingly participated in theft of information, no criminal or civil liability may attach.  To hold otherwise, the Supreme Court has held, would be an unconstitutional prior restraint upon the press. This is so, the Court has held, even if the publisher is aware that the material provided to it was not come by honestly.  Bartnicki v Vopper, 532 U.S. 514 (2001); The Florida Star v. B.J.F., 491 U.S. 524 (1989); Smith v. Daily Mail Publishing Company., 443 U.S. 97 (1979); New York Times Company v. United States United States v. Washington Post Company, 403 U.S. 713 (1971)

Settled law in unsettling times.  The recent reiteration of these principles by the United States District Court for the Southern District of New York was occasioned by a suit by the Democratic National Committee (DNC) against Donald J. Trump For President, Inc. ; Donald J. Trump, Jr.; Paul J. Manafort, Jr.; Jared C. Kushner; George Papadopoulos; and Richard W. Gates, III; Roger J. Stone, Jr.; the Russian Federation; Aras Iskenerovich Agalarov; Emin Araz Agalarov; Joseph Mifsud; WikiLeaks; and Julian Assange.

The DNC alleged, and the court on motion to dismiss assumed to be true, that the Russian Federation hacked into the computers of the DNC, siphoned substantial numbers of significant documents.  The Russian Federation next engaged in a minuet with the Trump campaign and its various principals as well as with Wikileaks and Assange, which resulted in disclosures of the DNC’s theretofore private information. 

The DNC alleged that the Trump campaign welcomed and was benefited by the Russian Federation’s actions and that publication of DNC’s stolen information was unlawful. 

The Southern District of New York rejected the DNC’s contentions because the Russian Federation, as sovereign, cannot be sued in the United States courts by private entities, because the First Amendment protects publishers of unlawfully obtained information, and because the defendants could not be civilly liable for  conspiracy, if one were found to exist, to achieve the lawful end of the election of a presidential candidate.  

The court observed that the Supreme Court has been plain in its view that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Smith v. Daily Mail Publishing Co.,, 443 U.S. 97, 102 (1979).  (Opinion, p. 33-34). The law distinguishes the publication of stolen information from the act of theft. Bartnicki v Vopper, 532 U.S. 514 (2001) (Opinion, p. 34) . 

The federal court was aided in its determination by amicus submissions by The Knight First Amendment Institute at Columbia University, the Reporters Committee for Freedom of the Press, and the American Civil Liberties Union.  

The upshot: getting to the truth may involve some discomfort, and may not always be pristine. Leaving aside for a moment the catnip of campaign hi-jinx, it may strike some as far from reasonable to extend the insulation afforded by the First Amendment as far as it has been here, and perhaps as far as it has been historically.  Others would argue that the occasional publication of tainted information is but a small price to pay to ensure the continuous flow of information about matters of public concern that is held to be central to a free society.  

The future. Whether appeal will ensue is not known at this writing. 

Source Material. The opinion of the Southern District of New York, the principal Supreme Court cases relied upon, and the amicus submission presented to the court are provided below.  

Democratic Nat’l Comm. v. Russian Fed’n (S.D. N.Y., 2019)

Bartnicki v Vopper, 532 U.S. 514 (2001)

The Florida Star v. B.J.F., 491 U.S. 524 (1989)

Smith v. Daily Mail Pub. Co.. 443 U.S. 97 (1979)

New York Times Company v. United States United States v. Washington Post Company, 403 U.S. 713 (1971)

DNC v. Russian Federation et al Amici Curaie Brief

 

 

 

 

 

 

A Matter of Opinion: Federal Court in Kentucky Dismisses High School Student’s Defamation Case Against the Washington Post Stemming from Reporting of Charged Encounter on the National Mall

Nicholas Sandmann v. WP Company, LLC, d/b/a The Washington Post, No. 2-019-00019 (WOB-CJS).  Opinion and Order of Dismissal with Prejudice, July 26, 2019 (E.D. Ky.)


An encounter between a high school student and a Native American activist on the National Mall in January, 2019, was videotaped and widely distributed on the internet.

The day having been one of several groups’ gathering to exercise First Amendment freedoms, the appearance of conflict between an adolescent wearing a MAGA (“Make America Great Again”) hat and a drumming Native American was undoubtedly newsworthy and of public interest.

Interaction among students from a Catholic High School who had traveled to Washington to engage in pro-life activity and a Native American participating in an Indigenous Peoples’ March could only be catnip to those inclined to perceive any encounter between persons of differing demographic groups as a manifestation of one form of social ill or another.

Upon posting of the video, the internet blew up, and the commentariat raged apace, in general denouncing the adolescent Sandmann and applauding the Native American Nathan Phillips.

Some days hence, questions arose as to the bona fides of the initial accounts of the exchange, which questions were buttressed by disclosure of additional video.

Religious superiors affiliated with Sandmann’s high school condemned the incident, a position from which retrenchment was necessitated upon disclosure of additional information.

Interviews and talk show appearances ensued.  Sandmann was interviewed, as was Phillips.  Pundits weighed in and editorialists opined. The public shared its views and the Twitterverse was alive with chatter about this alleged confrontation between individuals presumed to be from different worlds.

Counsel volunteered to help Sandmann, who had been thrust into the public spotlight at an early age, to address the consequences of perceptions of his activity.  As a result, multiple lawsuits have been filed against major media.

On July 26, 2019, the United States District Court for the Eastern District of Kentucky dismissed Nicholas Sandmann’s complaint against the Washington Post with prejudice.

The federal district court has concluded that, as a matter of law, Sandmann had not stated a claim of defamation under Kentucky law.

The court enumerated the elements of defamation under state law and referred to Supreme Court precedent establishing that opinions on matters of public concern are not actionable without provably false factual statements.  Opinion is fully constitutionally protected,  and there can be no legal remedy for statements  that cannot reasonably be seen to be stating facts.  Milkovich v. Loraine Journal Co., 497 U.S. 1 (1990).

The court found that some statements in the seven articles published by the Washington Post were not specific to Sandmann, and were not identifiable to Sandmann, and thus were not actionable.

The court also found that statements made by Phillips that Sandmann “blocked” him from moving and that Phillips felt fear were statements of opinion which, n the absence of demonstrable underlying factual falsity, were not actionable.

Additionally, the court found the statements challenged were not defamatory.  It is not enough,the court observed, that an allegedly defamatory statement is “annoying, offensive, or embarrassing.”  (Op. at 11).  The statements must expose the claimant to “public hatred, ridicule, contempt or disgrace,” or induce in others a bad opinion (Id.)

The court turned to the defamatory nature of the statements published, which Sanamann alleged indicated that he assaulted or intimidated Phillips, uttered taunts, or engaged in racist conduct.   The court concluded that the published articles said no such things.

The court offered that, it analyzing the case as one of libel per se, the court was precluded from venturing beyond the plain meaning of what was actually published or to engage in explanation, enlargement or innuendo to add to the words allegedly libelous effect (Op. at 20-21).

Any consequences allegedly suffered by Sandmann– such as social media scorn — were without significance to the court, as extrinsic evidence would make the case one of libel per quod, which was not, in the court’s view, the claim before the court, which was one of libel per se.

A published account indicating that  a public encounter was heated or tense would not be sufficient to meet the elements of defamation, nor would rhetorical headline hyperbole be found defamatory.

Phillips’ subjective account of his experience of fear was not defamatory nor could assigning political affiliation to Sandmann subject Sandmann to the sort of social contempt required for statements to be libelous per se.  Neither Sandmann’s statement of his subjective intent nor Phillips’ description of his subjective emotional state are  susceptible to objective verification.  As such, these accounts cannot be actionable in defamation.

The court observed that shielding opinion from civil liability serves to protect First Amendment speech and press interests.

Prognostication: Impossible.  As noted above, Sandmann’s case against the Washington Post is but one of several cases in which he seeks to recover for alleged harm suffered as a result of the media firestorm that ensued from his encounter with Phillips.  If the decision here is any indication, subsequent cases may be intensively fact driven.  Whether the breadth of construction of statements of perception such as “blocked,” which is arguably a verifiable and measurable matter, will be accorded in other cases remains to be seen.  Of equal significance is whether other cases will be limited to consideration of libel per se.

Sandmann v. Washington Post, Opinion and Order of Dismissal July 26, 2019

 

 

 

 

 

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)