Justia Communications Law Opinion Summaries

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A man left a voicemail at former attorney general Holder's law firm, (Covington): Former U.S. Attorney General Eric Holder, I’m going to kill you. ... to murder you. My name is Atrel Howard. We had spoken in February of 2010. I was a United States unconstitutional convicted ... prisoner by the Common Pleas Court of Cuyahoga County ... through the second part of the clause of the double jeopardy law ... we had spoken. My name is Atrel Howard of Cleveland, Ohio. If you get this message you need to realize that I’m under unconstitutional law. ... I was sentenced to 50 months ... intentional assault of a federal agent or employee on the FBI agency premises. Howard was charged with the knowing and willful transmission in interstate commerce of a communication containing a threat to injure another, 18 U.S.C. 875(c). Covington’s server identified the caller as Atrel Howard, from a Cleveland, Ohio area code. An FBI agent and a probation officer were familiar with Howard’s voice. The telephone number belonged to Howard’s father. The jury instructions were jointly proposed by the parties. Convicted, Howard was sentenced to 30 months for his section 875(c) offense and his supervised release violation. The Sixth Circuit affirmed, rejecting arguments of insufficient evidence; that omitting the essential mens rea element violated Howard’s Fifth and Sixth Amendment rights and deprived the court of jurisdiction; and that the court erred in instructing the jury as to what type of communication would constitute a “true threat.” View "United States v. Howard" on Justia Law

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ABC stores its subscribers’ data on the cloud. ABC received a grand jury subpoena issued under 18 U.S.C. 2703(c)(2), ordering it to produce the non-content data of one of its subscribers, as part of a criminal investigation. The subpoena was accompanied by a nondisclosure order (NDO), prohibiting ABC from notifying any person, except its lawyers, of the existence of the subpoena for one year. Weeks later, a magistrate issued a search warrant directing ABC to produce content-specific data for the same account, with another NDO. ABC complied. The subscriber filed for bankruptcy. ABC moved to modify the NDOs to permit it to notify the bankruptcy trustee of the existence of the subpoena and warrant, arguing that the NDOs are content-based restrictions and prior restraints that infringe upon its First Amendment rights. ABC asserted the bankruptcy trustee had a duty to uncover and assert causes of action against the debtor’s officers and directors. The district court found that 18 U.S.C. 2705(b) implicates the First Amendment rights of service providers and that such an NDO passes strict scrutiny. The Third Circuit affirmed the denial of ABC’s motion to amend the NDOs. The governmental interest in maintaining grand jury secrecy is sufficiently strong for the NDOs to withstand strict scrutiny; the restriction is the least restrictive means of serving that interest and is narrowly tailored, being limited to one year. View "In The Matter of the Application of Subpoena 2018R00776" on Justia Law

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The Supreme Judicial Court held that the newspaper in this defamation case was not liable for republishing public police logs and requests for assistance received from a police department because the fair report privilege shielded the newspaper's editor from liability. The University of Massachusetts Boston police department received a report that an unknown man was engaging in suspicious activity near campus, and the police included an account of this report in their blotter, a daily public policy log. The news editor of the school newspaper republished the blotter entry, a version of the report, and a photograph of Plaintiff. Plaintiff was subsequently identified as the unknown man. Plaintiff bright this action against university employees and the editor, alleging that they spread false reports about him. The trial judge granted summary judgment for the defendants. The Supreme Judicial Court affirmed, holding that the report and photograph fell under the fair report privilege. View "Butcher v. University of Massachusetts" on Justia Law

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The Supreme Court affirmed the judgment of the district court awarding attorney's fees to two media organizations after they secured for public release the names of three Billings police officers who were disciplined for having sexual relations with a city clerk, holding that the district court did not abuse its discretion in making a statutory award of fees. The Billings Gazette ran a story reporting that three City police officers had been suspended without pay for having sex on City property. Each of the three officers filed a separate motion for temporary restraining order (TRO) seeking protection of his identity. The district court issued the TROs. The media companies sought a declaration that the public's right to know clearly outweighed the alleged privacy interests the officers asserted and requested attorney's fees and costs pursuant to Mont. Code Ann. 2-3-221. The district court ordered release of the officers' identities and granted the media companies' request for fees and costs. The Supreme Court affirmed the award of attorney's fees, holding that the district court properly exercised its discretion in awarding fees and costs. View "City of Billings v. Billings Gazette" on Justia Law

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Defendants solicited and obtained $180,000 from plaintiff produce a documentary on the Syrian refugee crisis. Plaintiff sued, alleging that no “significant” work on the documentary has occurred, that defendants never intended to make the documentary, and that a cinematographer has not been paid and claims the right to any footage he has shot, putting the project in jeopardy. Defendants filed an unsuccessful anti-SLAPP (strategic lawsuit against public participation (Code Civ. Proc. 425.16)) motion to strike, arguing the complaint arises out of acts in furtherance of their right of free speech in connection with an issue of public interest--their newsgathering related to the Syrian refugee crisis, and that plaintiff could not demonstrate minimal merit on his claims because the action is subject to an arbitration provision; plaintiff’s allegations are contradicted by the investor agreement; and the evidence establishes that substantial progress was made. The court found that plaintiff’s claims did not arise out of acts in furtherance of defendants’ protected speech but were “based on the failure to do acts in furtherance of the right of free speech." The court of appeal reversed. Defendants made a prima facie showing that the complaint targets conduct falling within the “catchall” provision of the anti-SLAPP law. Defendants’ solicitation of investments and their performance of allegedly unsatisfactory work on the documentary constituted activity in furtherance of their right of free speech in connection with an issue of public interest. The court erred in denying the motion at the first stage of the anti-SLAPP analysis. View "Ojjeh v. Brown" on Justia Law

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The Ninth Circuit filed an order withdrawing its prior opinion and replacing the opinion with an amended opinion, denying a petition for panel rehearing, and denying on behalf of the court a petition for rehearing en banc. The panel also filed an amended opinion reserving the district court's dismissal, as barred by section 230 of the Communications Decency Act (DCA), of claims under New York law and the Lanham Act's false advertising provision. Enigma filed suit alleging that Malwarebytes Inc. has configured its software to block users from accessing Enigma's software in order to divert Enigma's customers. The panel distinguished Zango Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1173 (9th Cir. 2009), from this case and held that the parties here were competitors. The panel heeded the warning in Zango against an overly expansive interpretation of section 230 that could lead to anticompetitive results. The panel held that the phrase "otherwise objectionable" does not include software that the provider finds objectionable for anticompetitive reasons. In regard to the state-law claims, the panel held that Enigma's allegations of anticompetitive animus were sufficient to withstand dismissal. In regard to the federal claim, the panel held that section 230's exception for intellectual property claims did not apply because Enigma's false advertising claim did not relate to trademarks or any other type of intellectual property. The panel remanded for further proceedings. View "Enigma Software Group USA, LLC v. Malwarebytes, Inc." on Justia Law

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Between January 25 and July 26, 2017, members of the news media submitted 163 ublic Records Act ("PRA") requests to the Washington senate, house of representatives and the Washington legislature as a whole as well as to offices of individual state senators and representatives. In response to some requests, senate and house counsel stated that the legislature did not possess responsive records; in response to other requests, senate and house counsel and some individual legislators voluntarily provided limited records. Some records that were provided contained redactions, though no exemptions were identified. The issue this case presented for the Washington Supreme Court's review centered on whether the state legislative branch was subject to the general public records disclosure mandate of the PRA. The Court determined that under the plain meaning of the PRA, individual legislators were "agencies" subject in full to the PRA's general public records disclosure mandate because they were expressly included in the definitional chain of "agency" in a related statute. Furthermore, the Court held the institutional legislative bodies were not "agencies" because they were not included in that definitional chain, but they were, instead, subject to the PRA's narrower public records disclosure mandate by and through each chambers' respective administrative officer. View "Assoc. Press v. Wash. State Legislature" on Justia Law

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Prison Legal News (“PLN”) published a monthly magazine to help inmates navigate the criminal justice system. Between January 2010 and April 2014, the Federal Bureau of Prisons (“BOP”) rejected the distribution of 11 publications PLN sent to inmate subscribers at the BOP’s United States Penitentiary, Administrative Maximum Facility in Florence, Colorado (“ADX”). PLN sued the BOP, claiming the rejections violated PLN’s First Amendment rights, its Fifth Amendment procedural due process rights, and the Administrative Procedure Act (“APA”). ADX responded by distributing the 11 publications, revising its institutional policies, and issuing a declaration from its current Warden. Based on these actions, the BOP moved for summary judgment, arguing that PLN’s claims were moot or not ripe. PLN filed a cross-motion for partial summary judgment on its First and Fifth Amendment claims. The district court granted the BOP’s motion and dismissed the case as moot. The Tenth Circuit determined factual developments during the litigation indeed mooted PLN’s claims. Therefore, the district court did not err in granting summary judgment for the BOP and dismissing this case for lack of jurisdiction. View "Prison Legal News v. Federal Bureau of Prisons" on Justia Law

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The Supreme Court reversed the order of the district court denying an anti-SLAPP special motion to dismiss in a tort action, holding that, in determining whether the communications were made in good faith, the court must consider the "gist or sting" of the communications as a whole, rather than parsing each individual word in the communications to assess it for its truthfulness. In the complaint, Plaintiff alleged libel per se, slander per se, and intentional infliction of emotional distress. Defendant filed an anti-SLAPP special motion to dismiss. The district court denied the motion, determining that Defendant did not meet her burden under the first prong of the anti-SLAPP analysis because she did not show that the statements were made in good faith. The Supreme Court reversed, holding (1) the district court erred in its analysis of whether Defendant's statements were made in good faith; and (2) Defendant showed by a preponderance of the evidence that she made the statements in good faith under the first prong of the anti-SLAPP analysis, and Plaintiff could not demonstrate with prima facie evidence a probability of prevailing on this claim under the second prong. View "Rosen v. Tarkanian" on Justia Law

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The Supreme Court affirmed the judgment of the circuit court dismissing with prejudice Transparent GMU's petition for writ of mandamus seeking to obtain donor information under the Virginia Freedom of Information Act (VFOIA), Va. Code 2.2-3700 et seq., from George Mason University (GMU) and the George Mason University Foundation, Inc. (the Foundation), holding that the Foundation's records were not subject to disclosure under VFOIA. Transparent filed VFOIA requests with GMU and the Foundation seeking records of grants and donations involving contributions to or for GMU from any of several charitable foundations. The Foundation, a privately held corporation established the raise funds and manage donations given for the benefit of GMU, responded that it was not a public body and its records were not public records subject to VFOIA. Transparent filed a petition for mandamus relief. The circuit court found that the Foundation was not a public body under VFOIA and dismissed the petition with prejudice. The Supreme Court affirmed, holding the Foundation was not a public body subject to VFOIA. View "Transparent GMU v. George Mason University" on Justia Law