No Longer Wrong, No Further Rights: RLUIPA Complaint Moot Following Settlement Between Islamic Center and County Government

United States v. County of Culpeper, No. 3:16-cv-00083 (W.D. Va.) September 1, 2017.

The federal government and the Islamic Center of Culpeper, Virginia both initiated federal litigation against the Culpeper County government to vindicate violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA).

The Islamic Center of Culpeper, seeking to construct a new facility, alleged that the county added bureaucratic hoops and subsequently denied a permit routinely granted to others.  This occurred in the context of objections to the project to which local officials expressed concern about bias.

Culpeper County and the Islamic Center settled:  the permit was awarded, a promise that further permitting would not be hindered was made, and  were awarded.  The county undertook remedial measures by posting non-discrimination notices, including non-discrimination provisions in contract documents, and training staff in fair practices. The parties agreed that redress in federal court could be sought in case of any violation of the agreement.

The federal district court for the Western District of Virginia dismissed the federal government’s’ case as moot, declining continued federal presence to assert undefined “broader’ relief than that already agreed upon or to permit the federal government to monitor any assumed but unproved bad faith on Culpeper County’s part.  Where the private and federal cases against the county made the same claims and complete and enforceable relief had been attained, and the policy changes instituted by the county met the safe harbor provisions of RLUIPA, precluding judgment against it.

Where only injunctive and declaratory relief could be sought by the federal government, the federal district court lacked continuing subject matter jurisdiction of the federal government’s claims.  Mootness, the court opined, exists where no order the court could fashion could afford relief:  any declaration that the law had been violated would be retrospective and impermissible as advisory.

The presence of an enforceable settlement agreement and the provision of remedial measures addressing religious discriminationn precludes as moot the continued involvement of the fedeeral government in the federal courts relating to the very same matter against the county.

While this result appears facially straightforward, and while it is not known whether appellate review will be sought, the court’s opinion does intimate a refusal to permit the federal government, by means of retained federal court jurisdiction, to assume the role of ongoing monitor of settled claims.  It may be that the mootness rationales advanced by the trial court will be employed in other cases to inhibit the federal government from lingering in court, hovering over local governments “just in case” review appears desirable.

u.s. v. culpeper county w.d. va. 20170901

A Big Oops, But No Case: New York Times Shielded from Public Figure’s Defamation Claim

Editorial suggesting relationship between gun violence against Republican Congressmen and noted Republican’s activities not actionable notwithstanding editorial’s inclusion of hyperlink to information contradicting conclusions.  Rapid correction and insufficiency of evidence concerning actual malice compel dismissal with prejudice.  Palin v. New York Times Co., No. 17-cv-4853 (S.D.N.Y.) August 29, 2017.

Hours after an individual opened fire on June 17 2017 on Republican Congressmen practicing baseball in Northern Virginia in anticipation of an annual bipartisan charitable game, the New York Times (“Times“) published an unsigned editorial suggesting a link between former presidential candidate and Alaska governor Sarah Palin’s rhetoric and the violence.   The editorial included a hyperlink to an article stating that no relationship had ever been established between a graphic overlaying target crosshairs on political adversaries’ geographic jurisdictions and the 2011 shooting of Congresswoman Gabrielle Giffords and eighteen others near Tucson, Arizona.

The Times backpedaled within a day, publishing two revised editorials and corrections stating that no link had been established between political incitement and the Giffords shooting.

Ms. Palin sued the New York Times Company.

The United States District Court for the Southern District of New York dismissed with prejudice plaintiff Palin’s complaint on August 29, 2017, opining that plaintiff ha failed to allege with sufficient particularity and plausibility facts sufficient to withstand the rigorous standards for liability for defamation of a public figure established by New York Times v. Sullivan, 376 U.S. 254 (1964).

The landmark New York Times v. Sullivan decision created — in order to ensure First Amendment speech and press freedoms — a higher standard of proof in defamation actions by public figures than in those brought by ordinary people.  A public figure who seeks redress must establish by clear and convincing evidence that a defamatory statement was made with actual malice. Actual malice is defined as actual knowledge or reckless disregard of the falsity of a published statement.

In Palin’s case, the court noted that her status as a public figure was conceded.  The Times’ attempted reliance on the “group libel” doctrine precluding relief, in which relief is precluded where an individual is only a member of a group, is misplaced where the editorial mentioned Ms. Palin by name in connection with her political action committee.

It was at the threshold of the actual malice standard that plaintiff’s complaint stumbled, the court opined.  As an initial matter, the court ruled that collective “corporate” actual malice does not merit legal recognition and in any case, cannot be established absent a showing that an individual’s actual malice was directed to a corporate publisher’s attention.

Individual actual malice could not be shown, the federal district court held.  Rather than evidencing liability, the rapid revisions and corrections of the editorial acknowledged an unintended mistake.

Neither the Times’ unabashed low regard for Ms. Palin nor its desire for readership concerned the court, nor did the (ultimately identified) responsible editor’s affiliation with liberal institutions and politicians add weight to any argument about the Times’ motivation in publishing the editorial.

The inclusion in the editorial of a hyperlink to published statements negating the Times’ position show not that the Times was unmindful of the truth, but rather that the Times had done some research before publication, the court found.

The editor’s failure to read research provided to him was of no moment, the court observed, as a failure of research cannot establish actual malice.  Whether the editor had knowledge of the evidence indicating the absence of connection between the plaintiff’s political action committee’s crosshairs map and mass violence was but a lawyer’s argument, the court found.

If the editor refused to read the contrary view — presumably because it contradicted the editorial’s position — the editor could have removed the link.  The editor’s failure to remove the link to contrary information supports an inference against actual malice, the court found.

When rewriting an editorial writer’s submission, the editor had no incentive to read what the editorial writer had reviewed.  Any failure to read proffered  research material cannot constitute reckless disregard.

Moreover, the federal district court found, the earlier Times editorials made available to the editor were not as contradictory as plaintiff would wish, as they opined that Republicans and Palin were responsible for creating a rancorous atmosphere capable of affecting the behavior of the mentally ill who commit mass gun violence.  Thus the Times’ self-corroboration would not necessarily have compelled the Times’ editor to conclude that its June, 2017 editorial was in error.

Dismissal with prejudice was in order, the court concluded, where, in addition to pleadings, matters adduced an evidentiary hearing were considered, where plaintiff’s other arguments were so insubstantial as to not merit consideration, and where a collective assessment of individually deficient assertions could not support an inference of actual malice.

No doubt the Palin decision was welcomed by the New York Times and other publishers. In many respects the case can be seen as testing the limits of liability in defamation at a time of near simultaneity between events and publication of related news and opinions. As such, the court’s refusal to police newsroom shortcomings may be heartily welcomed in those circles.

Yet there are those who may believe that the New York Times v. Sullivan now immunizes publishers to a degree paralleled only by sovereign immunity, where initially the Supreme Court’s holding was intended to offer protection first in service of the constitution, and only consequently in aid of the corporation.  In the absence of reliable information concerning whether Palin will appeal, it appears that further consideration of the issues raised in this case must await another day.

20170829 SDNY Palin Opinion

The Summer of Not So Much Love: Members of Rock Band Jefferson Starship Square Off for a Third Round of Litigation Over Contract and Trademark Rights

The federal district court in northern California is being called upon to explore the limits of Lanham Act protections in the context of First Amendment expressive freedoms. Chaquico v. Freiberg, et al., No. 17-cv-0423-MEJ (N.D. Cal.) August 11, 2017.

The United States District Court for the Northern District of California has refused to dismiss contract claims arising after the death of Jefferson Starship member Paul Kantner.   The court has dismissed, with leave to amend, plaintiff’s Lanham Act claims, finding the current presentation of the claims to be too conclusory to survive a motion to dismiss.

Back in the Day:  The Several Incarnations and Litigations of a Legendary Band

Chaquico and Paul Kantner founded rock band Jefferson Starship in 1970, enjoying great commercial success.  When Kantner left the band fourteen years later he sought to enjoin the remaining band members from using the Jefferson Starship name.

Kantner, plaintiff Chaquico, present defendants Freiberg and Baldwin agreed in 1985 that the name Jefferson Starship would no longer be used, but “Starship,” without Kantner, would be used by the other band members.

Starship enjoyed some success, but Freiberg was fired, Baldwin was dismissed, and Chaquico left.  

Thereafter Kantner joined with other musicians and, notwithstanding the 1985 agreement, resumed use of the name Jefferson Starship.  

Chaquico sued Katner for Kanter’s unauthorized us of the Jefferson Starship name.  In 1993, Chaquico granted Kantner use of the Jefferson Starship name for live performances and sale of merchandise.  Some parties to the 1985 agreement agreed to give Kantner those permissions:  no parties to the agreement objected.  

Defendants Freiberg and Baldwin joined Jefferson Starship in 2005 and 2008.

Kantner’s death in 2016 terminated the naming permissions granted in the 1993 agreement.  Freiberg and Baldwin continued to use the Jefferson Starship name. Chaquico demanded they cease and desist these violations of the 1985 agreement.

What Is Plaintiff’s Current Concern?

Chaquico objects to the the defendants’ continued use of the Jefferson Starship name as an affront to the band’s legacy.  Moreover, Chaquico argues that the use of images from the original band has caused him to become an “involuntary spokesperson” for the band.  Chaquico asserts that use of the original images will cause public confusion.  

Defendants refuse to stop using the Jefferson Starship name, and continue to use that name in advertising and promotions, citing permissions from other parties to the 1985 agreement.  

What Would Make Things Better?

Chaquico seeks damages for breach of contract, for violations of the Lanham Act, and requests injunctive relief.

The Contract Claims

The 1993 agreement released Chaquico’s rights against Kanter and band members. Although the defendants in the current litigation were not parties to the 1993 agreement, they obtained benefits from it, enjoying its protection when they joined Kantner’s band which lasted until the time of his death.  Claims arising before Kantner’s death are, the court concluded, time barred, but those arising after Kantner’s death may proceed.

The Lanham Act Claims:  Commerce and Art Collide

The Lanham Act prohibits the use of names, symbols, images or other representations likely to cause confusion, mislead, or deceive concerning any product, service or commercial activity.

Where the Lanham Act constrains representations likely to cause commercial confusion, the First Amendment guarantees extensive expressive latitude, yet the First Amendment will not serve as a shield against legitimate commercial confusion claims.

The use of a promotional  image must have some minimal relevance to protected artistic expression to claim the First Amendment protections of an underlying work, but those protections may be forfeited if an  image is explicitly misleading about the content of the underlying work.  

The Current Ruling in the Northern District of California

The trial court noted that First Amendment protections extend only to truthful claims.  If the use of Chaquico’s image in Freiberg and Baldwin’s advertising falsely conveys Chaquico’s sponsorship, no First Amendment protections attach.  

As the present complaint lacks sufficient factual foundation, Chaquico may proceed if an amendment cures this deficiency.

Significant Case Law

Brown v. Electronic Arts, 724 F.2d 1235 (9th Cir. 2013) (expressive use of image in video game may violate Lanham Act).

ESS Entertainment v. Rock Star Videos, 547 F.3d 1095 (9th Cir. 2008) (Rogers applies to use of trademark in body of work).

Mattel v. MCA Records, 296 F.3d 894 (9th Cir. 2002) (adopts Rogers).

Rogers v. Grimaldi, 875 F.2d 994 (2nd Cir. 1989) (Lanham Act applies to artistic works only where public interest in avoiding confusion outweighs public interest in freedom of expression).

Chaquico v. Freiberg (N.D. Cal., 2017)


If I Knew You Were Coming I’d Have Baked A Cake. Or Maybe Not.

Masterpiece Cake Shop, Ltd. and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins, U.S. Supreme Court Docket No. 16-111.  Petition for Certiorari granted June 26, 2017.  Petitioners’ Brief and Joint Appendix due August 31, 2017.  Respondents’ merits briefs due October 23, 2017.

In the upcoming term the Supreme Court will review a dramatic clash featuring constitutional promises, the Court’s own precedents, and state civil rights statutes, administrative bodies, and courts.  The Court’s docket frames the question for decision to be whether applying Colorado’s public accommodation law to compel Masterpiece Cake Shop and Phillips to create expression that violates Phillips sincerely held religious believes violates the Free Speech or Free Exercise Clauses of the First Amendment.

What Has Happened So Far?

Craig and Mullins, two potential customers of Masterpiece Cake Shop, Ltd., is owned and operated by Phillips and his spouse, filed administrative charges concerning the Colorado baker for sexual orientation discrimination when Phillips declined, on religious grounds, to create a cake celebrating their same-sex marriage.

The Colorado Commission Against Discrimination agreed with Craig and Mullins and ordered Phillips to create wedding cakes for same-sex marriages, to train his staff to do so, and to report to the state when any order was declined.

The Colorado Court of Appeals found cake creation to be conduct unprotected by the Free Speech clause. Moreover, no Free Exercise violation could e found in requiring compliance with neutral and generally applicable anti-discrimination laws.

The Colorado Supreme Court declined further review, and the petition to the U.S. Supreme Court for certiorari ensued.

What Can Be Expected at the Supreme Court?

Phillips will argue that his custom cakes are art, that artistic creation is speech, and that the state cannot compel speech.  Phillips has asked the Court to review the limits of the speech/conduct dichotomy, in which the former is protected by the First Amendment, while the latter is not.  Phillips underscores the importance of this examination where, he asserts, the federal circuit courts of appeal are in conflict concerning the meaning of “expression.”  Finally, Phillips observes that his Free Exercise Rights are jeopardized where others are not required to produce customer cakes but he faces punishment if he, on the basis of his religious beliefs, will not.

Respondents Craig and Mullins will argue that there should not be any Free Exercise exemption from the antidiscrimination statutes that are both generally applicable and of great social policy import to the country. Moreover, the First Amendment Speech Clause holds no promise of freedom to discriminate.  In fact, they will say, the First Amendment’s speech protections are not in issue at all, as baking a cake is constitutionally unprotected conduct, not speech.

The Colorado Civil Rights Commission, as administrative and adjudicative body concerning the state’s public accommodation law, will argue that these statutes embody the highest of compelling state interests and, as such, are insulated from First Amendment exceptions. Moreover, the state agency will argue, Phillips’ compelled speech argument is not supported within the record.

The civil rights administrative body observes that Phillips refused to create a custom wedding cake was categorical, on the basis of their status, and was made without reference to any “compelled” design features.  Philips’ outright refusal violated the public accommodations law without reference to any process which might involve First Amendment protections.

The conflicts among federal courts that the petitioners perceive are illusory, the Colorado agency asserts, and this is true whether the uniform applicability of anti-discrimination laws or the meaning of “expression” is in issue.

Finally, the state agency argues, the Supreme Court’s precedents concerning compelled speech are not in issue where the record finds that conduct, not expressive speech, is in issue.  Adherence to general non-discrimination laws is distinguishable from any state requirement to profess the any government message.

Is That All?

At its core this case invites the Supreme Court to establish a “pecking order” among the freedoms guaranteed by the First Amendment and those promised by the civil rights laws.  If that seems a tall order, that is because, without a doubt, it is.  Ideally all facets of such significant laws would work together to accommodate the others, but advocacy does not proceed in an ideal world.

It would not be surprising if the case were to command a good bit of the Court’s and the public’s attention.  With respondents’ briefs not due until the third week of October, and with phalanxes of amici anticipated, and with the potential for reply memoranda to be submitted, it may not be until 2018 that oral argument is held, with no opinion to be forthcoming until the end of the term.   This last is but prognostication.  As with all things in the current legal realm, anything is possible.

Certiorari Submissions:

16-111 Cert. Petition Masterpiece Cake _Phillips

16-111-Brief Opposing Certiorari Mullins _Craig

16-111-Brief Opposing Certiorari CCRC

16-111 Cert. Reply Masterpiece Cake _ Phillips

20170512 Letter re. Supplemental Authority









Protective Order Banning Internet Activity Violates First Amendment, New Mexico Court of Appeals Has Found

Best v. Marino. No. 34,680 (N.Mex. App.) June 27, 2017.

Following deterioration of the parties’ friendship, Best sought a protective order to inhibit Marino from email contact and derogatory online postings.  Marino continued to engage in online contacts, was held in criminal contempt, sentenced, and directed not to use the internet except to contact her attorney or accountant.

The procedural posture of the case offers practice pointers.   Review of an order of protection is by appeal, and not by collateral attack such as the review of the contempt proceedings here.

The appellate court was disinclined to rule on Marino’s argument that she did not understand that the protective order included online contacts.  The order prohibited abuse activity likely to induce emotional harm, which a reasonable person would understand to include online activity.  Moreover, the argument that website and Facebook messages about Best were not intended to reach him were dismissed as disingenuous.

Marino’s argument that the state may not sanction online activity because it is protected speech must fail, because the state may circumscribed unprotected speech such as threats, speech incident to a crime, and other matters.   Substantial interests may be circumscribed based on past behavior.

Nonetheless, the prohibition of almost all internet activity was found to be an unconsittuional prior restraint.  Such a broad restriction supporting the compelling state interest of inhibiting harm to citizens fails strict scrutiny, as it is not the least restrictive means of supporting that interest.  Restrictions on Marino’s access to the internet were lifted with the understanding that all other components of the protective order remain in effect.

Best v. Marino (N.M. App., 2017)


No Reason Found to Permit Anonymous Proceedings in Potential Class Action Concerning Communications Privacy

A. Michael v. Charter Communications, No. 4:17 CV 1242 (JMB) (E.D. Mo.) June 30, 2017.

Charter Communications moved to dismiss this putative class action challenging defendant’s privacy practices concerning customer information because, among other matters, plaintiff failed to identify himself.

Federal Rule of Civil Procedure 10(a) requires identifications of parties to a suit.  This is more than administrative matter:  it serves the public interest  The First Amendment protects the promise of public proceedings by requiring identification of the persons involved, permitting proceeding anonymously only where substantial privacy interests are involved, such as challenges to government activity required disclosures of intimate information, or disclosure of information that would invite criminal prosecution.

The federal trial court found nothing in plaintiff’s case that would overcome the presumption of disclosure of his name, and found doing so of particular importance where plaintiff proposed to represent a public class.  Moreover, no protective order tould be entered as the local rules of court require redaction of social security information, home addresses, and financial account information.

Michael v. Charter Commc’ns, Inc. (E.D. Mo., 2017)


Fair Trial Rights and Public Trial Principles Not Always Coextensive, Missouri Court of Appeals Observes

State v. Jones, ED104588 (Mo. App.) June 30, 2017.

Defendant, accused of sodomy of a minor, complained of violation of his Sixth Amendment right to a fair and public trial because the trial court removed onlookers from the courtroom during jury voir dire.

Both the Sixth and First Amendments are protective of public trials. Violations of public trial rights are structural, requiring no showing of prejudice.  However, the Supreme Court has held that not every violation of a public trial right renders a trial fundamentally unfair.  Weaver v. Massachusetts, 2017 WL 2674153 (June 22, 2017).

The factors to be considered in constraining public access to trials, over objection, are:  the likelihood that there would be prejudice to a public interest; the conformity of any closure to the interest to be protected; the alternatives to closure; and the findings articulated to support closure.  State v. Salazar, 414 S.W.3d 606 (Mo. App. 2013).

Where no objection to closure was raised at he time of the court’s extemporaneous closure of the courtroom, which was effectuated to protect rather than impair defendant’s fair trial rights, plain error cannot be found.

State v. Jones (Mo. App., 2017)


Inmate May Proceed with Claim that Corrections Officials Violated His First Amendment Rights in Opening Mail from Civil Rights Organization

Turner v. California Department of Corrections, No. 16-6764-PA (JPR), (C.D. Cal) June 30, 2017.

General claims that corrections officials violated inmate’s First Amendment rights by opening his mail may be dismissed, but Truner may proceed against one official individually who is alleged to have opened his mail from the American Civil Liberties Union (ACLU).

Turner v. Cal. Dep’t of Corrs. & Rehab. (C.D. Cal., 2017)