Non-Theists Haven’t Got a (Legislative) Prayer, Third Circuit Holds

Fields, et al. v. Speaker of the House of Pennsylvania Representatives, No. 18-2974 (August 23, 2019).  Mandate issued September 16, 2019.

The Pennsylvania legislature invites only theists as guest chaplains to open sessions with prayer.  The Third Circuit found no constitutional infirmity in this practice.

The federal appellate court observed that prayer presupposes a higher power and that only theistic prayer is consonant with the historic tradition of invoking divine guidance in lawmaking.  

Legislative prayer is government speech, particularly where the government is both speaker and listener, and is not susceptible to First Amendment and Equal Protection challenges.  Signage and the speaker’s request that guests stand during prayer is not coercive.

Looking to History and Tradition. Supreme Court precedent looks to historic tradition to evaluate Establishment Clause challenges, whether with respect to public prayer or public monuments.  As legislative prayer has been a traditional practice, having both religious and secular significance, it works no constitutional harm.  

Prayer Definitionally Involves Divinity. Because by its very nature prayer presupposes a divine power, only theists prayer can achieve all the purposes of legislative prayer.  To confine prayer traditions to theistic prayer does not, notwithstanding prayer’s inherently religious nature, institute religious orthodoxy.

Religious Status Not Compelling. The non-theists’ challenge is not improved because of their recognition as religions, for that status does not change the nature of the prayer’s permissibility.  

Historic Conformity, Contemporary Neutrality. Because the Pennsylvania legislature has conformed to history in its choice of chaplains, because non-theists cannot offer the sort of prayer tradition contemplates, and because the legislature does not direct the content of prayer, Pennsylvania has not impermissibly preferenced one religion over another.  

A non discriminatory and inclusive practice of selecting theistic chaplains to lead prayer is acceptable under Town of Greece v. Galloway, 512, U.S. 565 (2014) under the Third Circuit’s view that prayer invokes divine guidance and presupposes a higher power.  Pennsylvania’s invitation program lends itself to greater constitutional acceptability than is a practice of selecting a single permanent chaplain from one denomination.

Not Must, But May. The Third Circuit noted that the Pennsylvania legislature need not exclude nontheists from legislative prayer, only that it is not impermissible to exclude non theists.  

Inclusiveness Has Limits. The court continued that an unbounded focus on “non-discrimination” could wreak havoc with selections, essentially creating a “heckler’s veto” on fringe groups.  

Another Voice Raised in Dissent.  A dissenting justice questioned the congruence with history that the other two members of the panel handily found.  Even if history were satisfied, the dissent perceived that the legislature has established a religious orthodoxy that violates the Establishment Clause. 

Where Judges Fear to Tread. The dissent criticized the majority for venturing into the very areas that the Establishment Clause forbids: courts are not to address questions such as the nature of prayer, what is divine, and so forth.

Consider the Outcome, Not Its Rationale. The dissent perceived the permissible “theistic” limitation to be so much obfuscation:  the real practice of the legislature is to exclude from guest chaplaincy certain religious groups and certain religious beliefs.

Tradition As It Was, Not As It Is Imagined to Have Been. The tradition embraced by the Founders is not one of exclusion but of inclusion. Early debate on the appointment of a chaplain ended in favor of doing so, and no faith was excluded and no faith was favored.  The notion that the Framers would not understand atheism as a faith distorts the historical inclusiveness that is central to the examination of history and would preclude inclusion of all manner of established traditions.

Tradition Has Its Limits. The dissent cautioned against finding too great a constitutional comfort in history, as history offers no justification for contemporary violation of constitutional guarantees.

Guarantees Not Honored. The promises of the Establishment Clause are governmental neutrality and non-discrimination.  The Pennsylvania practice falls short of the mark, demanding that guest chaplains assert a belief in God and permitting only those who do believe to serve.

Fields v. Speaker of Pa. House of Representatives (3rd Cir., 2019)

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