Justia Communications Law Opinion Summaries

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Every Saturday morning since 2003, six-12 protesters have picketed Ann Arbor’s Beth Israel Synagogue, displaying signs on the grass by the sidewalk in front of the synagogue and across the street. The signs state: “Resist Jewish Power,” “Jewish Power Corrupts,” “Stop Funding Israel,” “End the Palestinian Holocaust.” The protests coincide with the arrival of the congregants to their worship service but the protesters have never prevented them from entering the building, have never trespassed on synagogue property, and have never disrupted their services. The signs, the congregants allege, inflict extreme emotional distress on congregants: one sometimes forgoes attending services or visits a different synagogue to avoid the signs; a Holocaust survivor, feels extreme distress when she sees the signs.The Sixth Circuit affirmed the dismissal of a suit that alleged that the protests (and the city’s failure to enforce a city sign ordinance against the protesters) violated the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000bb – 2000cc-5, civil rights statutes, and the congregants’ substantive due process and free exercise rights. While the plaintiffs have alleged a concrete and particularized harm to a legally protected interest, the First Amendment affords “robust protections” to nonviolent protests on matters of public concern. View "Gerber v. Herskovitz" on Justia Law

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Devin Nunes, a Member of Congress from California, appeals the district court's dismissal of his complaint alleging defamation and conspiracy claims against defendant and Hearst based on an article published in Esquire magazine about his parents' farm and the use of undocumented immigrants.The Eighth Circuit agreed with the district court that the complaint fails to state a claim for express defamation based on the statements at issue in the article regarding Nunes' alleged improper use of his position as Chairman of the House of Permanent Select Committee on Intelligence and adopted the district court's conclusions. In regard to a statement regarding Nunes' attempt to undermine the Russia investigation, the court concluded that Nunes failed to identify that statement as allegedly defamatory in his complaint, and the court declined to consider the issue for the first time on appeal.However, in regard to Nunes' claim for defamation by implication, the court concluded that Nunes has plausibly alleged that defendant and Hearst intended or endorsed the implication that Nunes conspired to cover up his parents' farm's use of undocumented labor. The court explained that the manner in which the article presents the discussion of the farm's use of undocumented labor permits a plausible inference that defendant and Hearst intended or endorsed the implication. Finally, in regard to actual malice, the court concluded that the pleaded facts are suggestive enough to render it plausible that defendant engaged in the purposeful avoidance of the truth. Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings. View "Nunes v. Lizza" on Justia Law

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The Supreme Court affirmed the judgment of the court of appeals dismissing Appellant's mandamus petition against Judge Steven Beathard as moot on the ground that Judge Beathard had already performed the requested act, holding that the court of appeals properly dismissed this action as moot.While incarcerated, Appellant filed a mandamus action seeking an order directing Judge Beathard to provide him with a free copy of the transcript from his criminal trial. Appellant subsequently received a copy of the transcript. The court of appeals dismissed Appellant's petition in mandamus as moot based on his admitted receipt of the trial transcript. The Supreme Court affirmed, holding that the court of appeals did not err in dismissing this case as moot. View "State ex rel. Davidson v. Beathard" on Justia Law

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Petitioner TruConnect Communications, Inc., sought designation from the Vermont Public Utility Commission as an eligible telecommunications carrier (ETC) to provide affordable telecommunications service to qualifying Vermonters under the Federal Lifeline program. The Commission granted TruConnect’s application subject to certain conditions, including a condition that required TruConnect to provide a free cellular handset to its customers. TruConnect appealed, arguing that the condition was imposed on clearly erroneous grounds. After review, the Vermont Supreme Court agreed and reversed and remanded for the Commission to revise its order. View "In re Petition of TruConnect Communications, Inc." on Justia Law

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Jamal Khashoggi, a prominent Saudi journalist, was murdered in a Saudi consulate in 2018, apparently on orders of the Saudi Crown Prince. Under the Freedom of Information Act, 5 U.S.C. 552(a)(3)(A), the plaintiffs sought records about whether four U.S. intelligence agencies knew, before the murder, of an impending threat to Khashoggi. The agencies refused to confirm or deny whether they have any responsive records, on the ground that the existence or nonexistence of such records is classified information. FOIA Exemption 1 covers matters that are “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy.” To claim a FOIA exemption, an agency ordinarily must “acknowledge the existence of information responsive to a FOIA request” but if “the fact of the existence or nonexistence of agency records” itself falls within a FOIA exemption, the agency may “refuse to confirm or deny the existence” of the requested records, a “Glomar” response.The D.C. Circuit affirmed summary judgment in favor of the agencies. Statements made by a State Department spokesman soon after the murder do not foreclose the intelligence agencies from asserting their Glomar responses; the intelligence agencies have logically and plausibly explained why the existence or nonexistence of responsive records is classified information. View "Knight First Amendment Institute at Columbia University v. Central Intelligence Agency" on Justia Law

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Protect Democracy challenged the National Security Agency’s decision to withhold from disclosure under the Freedom of Information Act a memorandum the NSA Deputy Director wrote in 2017, memorializing what was said on a phone call he participated in between then-president Trump and the NSA Director soon after it occurred. According to an account of the phone call in Special Counsel Mueller’s report on Russian interference in the 2016 election, Trump asked the NSA Director whether he could do anything to refute news stories connecting Trump to the Russian government. The NSA cited a FOIA exemption that incorporates privileges available to the government in civil litigation, claiming executive privilege for presidential communications.The district court sustained the privilege claim and denied a request to examine the memo for any segregable passages subject to release under FOIA. The D.C. Circuit affirmed. The government did not waive the privilege when it published in the Mueller Report a description of the conversation. Based on an “in camera” review, the memo falls squarely within the scope of the presidential communications privilege, which applies to the memo in its entirety. “Protect Democracy cannot shrink the scope of the privilege by invoking FOIA’s segregability requirement, even if its FOIA request raises credible allegations of governmental misconduct.” The Mueller Report’s description of the phone call did not waive the privilege, as not all the information in the memo specifically matches the information released in the report. View "Protect Democracy Project, Inc. v. National Security Agency" on Justia Law

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Cause, a nonprofit organization committed to government transparency and openness, submitted a FOIA request, 5 U.S.C. 552(a)(3)(A), for the internet browsing histories of several senior agency officials over a specified period of approximately six months. The requests included two officials by name—Office of Management and Budget (OMB) Director Mulvaney and USDA Secretary Perdue—and two by position. OMB acknowledged receiving the request but never processed it. USDA denied the request, explaining that the browsing histories were not integrated into its record system, so the Department did not have sufficient control over the browsing histories such that they constituted “agency records” under FOIA. Cause filed suit. The district court granted the agencies summary judgment.The D.C. Circuit affirmed. The term “agency records” extends only to those documents that an agency both creates or obtains and controls at the time of the FOIA request. The agencies did not “control” the requested documents to the extent required for them to constitute agency records because agency personnel did not read or rely upon the browsing histories. OMB and USDA employees have significant control over the browsing histories, which they could freely delete; the agencies did not use the officials’ browsing histories for any purpose, much less a purpose connected to decision-making. View "Cause of Action Institute v. Office of Management and Budget" on Justia Law

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The Supreme Court reversed the interlocutory order of the district court denying Cathy McKitrick's motion to dismiss Kerry Gibson's petition for judicial review of the decision of the Ogden City Records Review Board granting McKitrick's request for government records, holding that a statutory claimant who lacks statutory standing may not proceed on the basis of traditional or alternative standing.McKitrick, a freelance journalist, sought records related to an investigation into the alleged official misconduct by Gibson, a former Weber County Commissioner. After the Review Board granted the records request Gibson petitioned for judicial review. McKitrick filed a motion to dismiss, arguing that Gibson lacked standing under the Utah Governmental Records Access and Management Act to seek judicial review of the appeals board's access decision. In response, Gibson argued that his petition should proceed because he met the tests for both traditional and public interest standing. The district court denied the motion to dismiss. The Supreme Court reversed, holding that a statutory claimant must have statutory standing, and the presence of traditional or alternative standing will not cure a statutory standing deficiency. View "McKitrick v. Gibson" on Justia Law

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Herring launched the conservative One American News Network (OAN) in 2013. While employed by OAN, Rouz also wrote articles as a freelancer for Sputnik, a Russian state-financed news organization. Herring alleges that Rouz’s work for Sputnik “had no relation to his work for OAN.” In 2019, The Daily Beast published an article entitled “Trump’s New Favorite Channel Employs KremlinPaid Journalist,” asserting that “Kremlin propaganda sometimes sneaks into” Rouz’s OAN segments. On the day the article was published, Maddow, host of The Rachel Maddow Show on MSNBC, ran a segment entitled “Staffer on Trump-Favored Network Is on Propaganda Kremlin Payroll.” The segment ran three and a half minutes.Herring sued Maddow and others for defamation. Herring did not sue The Daily Beast or its reporter but focused on Maddow’s comment that OAN “really literally is paid Russian propaganda.” Maddow moved to strike the complaint, citing California’s anti-SLAPP (strategic lawsuit against public participation) law. The district court granted the motion. The Ninth Circuit affirmed. Maddow’s “statement is an opinion that cannot serve as the basis for a defamation claim” and Herring failed to show “a probability of succeeding on its defamation claims.” The challenged statement was an obvious exaggeration, cushioned within an undisputed news story; it could not reasonably be understood to imply an assertion of objective fact. View "Herring Networks, Inc. v, Maddow" on Justia Law

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The Supreme Court affirmed the order of the superior court court granting summary judgment in favor of Defendants and concluding that North Carolina Railroad Company was not an agency or subdivision of the North Carolina government for purposes of the Public Records Act (the Act), N.C. Gen. Stat. 132-1, holding that there was no error.Plaintiff Southern Environmental Law Center, acting in reliance upon the Act, submitted a request to the president of the Railroad seeking to inspect certain records. The Railroad declined to provide the requested records, asserting that it was not subject to the Act. Plaintiff then brought this action requesting that the court enter an order declaring that the Railroad was an agency of the state for purposes of the Act. The trial court granted summary judgment in favor of Defendants. The Supreme Court affirmed, holding that the trial court did not err in granting summary judgment in favor of Defendants. View "Southern Environmental Law Center v. N.C. Railroad Co." on Justia Law