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)

 

 

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)

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)