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The Ninth Circuit affirmed the district court's grant of summary judgment for defendants in a class action under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. In this case, plaintiff received a text message from AC Referral, a non-party, that violated the TCPA. Plaintiff claimed that three lenders and two marketing companies ratified the unlawful text messages. The panel held that, although one of the marketing companies, Click Media, had an agency relationship with AC Referral, it was not bound by AC Referral's acts because it lacked knowledge that AC Referral was violating the TCPA and did not have knowledge of facts that would have led a reasonable person to investigate further. Therefore, Click Media could not be deemed to have ratified AC Referral's actions and was not vicariously liable. View "Kristensen v. Credit Payment Services" on Justia Law

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Herald-Leader sells and distributes Community News, a weekly four- to six-page non-subscription publication, containing local news and advertising for Lexington, Kentucky and the surrounding area. Herald-Leader delivers Community News free of charge to more than 100,000 households each week, including by driveway delivery. Lexington adopted an ordinance that permits the delivery of “unsolicited written materials” only: to a porch, nearest the front door; securely attached to the front door; through a mail slot; between an exterior front door and an interior front door; in a distribution box on or adjacent to the premises, if permitted; or personally with the owner, occupant, or lessee. Before the law went into effect, Herald-Leader obtained a preliminary injunction to prevent its enforcement. The Sixth Circuit reversed and vacated the injunction, finding that Herald-Leader had not shown a likelihood of success on the merits of its First Amendment claim. The ordinance is narrowly tailored to further the city’s goals of reducing visual blight and reducing litter. The court rejected an overbreadth argument and stated that, in determining whether the law leaves adequate alternative methods of communication, the district court failed to balance expense against the harms that can arise when cheap and efficient methods of circulating written materials are abused. View "Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government" on Justia Law

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The Second Circuit affirmed the district court's grant of defendant's motion for judgment on the pleadings in an action alleging that defendant violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. The court held that a flu shot reminder text message sent by a hospital did not violate the TCPA because the text fell within the scope of plaintiff's prior express consent. In this case, plaintiff provided defendant with his cell phone number when he first visited the hospital; signed a consent form acknowledging receipt of various privacy notices; in signing the form, agreed that the hospital could share his information for "treatment" purposes; and the privacy notices stated that defendant could use plaintiff's information to recommend possible treatment alternatives or health-related benefits and services. View "Latner v. Mt. Sinai Health System, Inc." on Justia Law

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In 2011, Dr. Volkman was convicted of drug-related charges for illegally prescribing pain medication leading to the deaths of at least 14 individuals. Eil, a journalist writing a book on Volkman's case, attended portions of that public trial. In 2012, Eil submitted a Freedom of Information Act (FOIA) request for the exhibits introduced by the government at the trial. The U.S. Drug Enforcement Administration (DEA) provided thousands of pages of responsive documents, some of which were redacted, but withheld the medical records of Volkman's living former patients and the death-related records of his deceased former patients. Eil sued to compel disclosure of the withheld records. The court granted Eil summary judgment, ordering the DEA to release the records with certain redactions. The First Circuit reversed. The district court's balancing of the public interest in disclosure against the relevant privacy interests was flawed because the court applied the wrong standard. The release of the requested records is unlikely to advance a valid public interest, given the amount of relevant information that Eil already has access to and the substantial privacy interests implicated by the records would outweigh any public interest in disclosure. View "Eil v. United States Drug Enforcement Administration" on Justia Law

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Appellants ("Customers") requested the Oklahoma Supreme Court reverse the Oklahoma Corporation Commission's ("Commission") Order Dismissing Cause and remand the underlying application to the Commission for a full hearing. Appellants were a group of six different individuals who were customers of the Defendant, Southwestern Bell Telephone d/b/a AT&T Oklahoma ("SWBT"). Customers filed their Application in 2015, asking the Commission to vacate or modify PUD 260 entered in 1989 in order "to redress the proven bribery and corruption perpetrated by Southwestern Bell Telephone Company [SWBT] that occurred in 1989 in relation to Oklahoma Corporation Commission's . . . Cause No. PUD (Public Utility Docket) 860000260 ("PUD 260")." The then-acting public utility division director for the Commission, initiated PUD 260 to determine how SWBT should distribute or utilize SWBT's surplus cash created by federal corporate tax reforms. Two of the three Commissioners approved the 1989 Order wherein it was determined that SWBT surplus revenue should not be refunded to its ratepayers. Commissioner Hopkins ("Hopkins"), was one of the two commissioners who voted in favor of the 1989 Order. Several years after the adoption of this Order, the public learned that Hopkins had accepted a bribe in exchange for assuring his favorable vote to the 1989 Order. Hopkins was indicted in 1993 and then later convicted for his criminal act. Commissioner Anthony announced in 1992 that he had been secretly acting as an investigator and informant in an ongoing FBI investigation concerning the conduct of his fellow commissioners and of SWBT. Following Hopkins' conviction, in 1997, Anthony, pro se, filed a document titled "Suggestion to the Court," advising the Supreme Court of the criminal misconduct of Hopkins and asked it Court to recall its mandate issued in Henry v. Southwestern Bell Telephone Co., 825 P.2d 1305. The Supreme Court dismissed for lack of jurisdiction. The case was remanded back to the Commission which determined the matter should be closed in its entirety. The Commission's order was not appealed. In January 2010, Anthony again filed a "Suggestion for Sua Sponte Recall of Mandate, Vacation of Opinion, and Remand of Cause to the Oklahoma Corporation Commission for Want of Appellate Jurisdiction with Brief in Support of Suggested Actions." The Oklahoma Supreme Court found it was bound to uphold the findings and conclusion of the Commission where they are "sustained by the law and substantial evidence." The Commission's Order Dismissing Cause contained overwhelming evidence and legal authority supporting its Order. The Order Dismissing Cause, Order No. 655899 was thus affirmed. View "Clements v. Southwestern Bell Telephone" on Justia Law

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Brunetti owns the clothing brand “fuct.” In 2011, individuals filed an intent-to-use application for the mark FUCT for items of apparel. The applicants assigned the application to Brunetti, who amended it to allege use of the mark. The examining attorney refused to register the mark under the Lanham Act, 15 U.S.C. 1052(a), finding it comprised immoral or scandalous matter because FUCT is the past tense of “fuck,” a vulgar word, and is therefore scandalous. The Trademark Trial and Appeal Board affirmed. The Federal Circuit reversed. While substantial evidence supports the Board’s findings and it did not err concluding the mark comprises immoral or scandalous matter, section 2(a)’s bar on registering immoral or scandalous marks is an unconstitutional restriction of free speech. The bar is a content-based restriction on speech; trademark registration is not a government subsidy program that could justify such a bar. Nor is trademark registration a “limited public forum,” in which the government can more freely restrict speech. The bar survives neither strict nor intermediate scrutiny. Even if the government had a substantial interest in protecting the public from scandalous or immoral marks, the regulation does not directly advance that interest because section 2(a) does not directly prevent applicants from using their marks. View "In re: Brunetti" on Justia Law

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The DC Circuit dismissed NTCH's petition for review of an Enforcement Bureau order based on lack of jurisdiction. The court held that it had no jurisdiction to entertain NTCH's challenge to the order issued by the Bureau because NTCH did not first seek review with the Commission as a condition precedent to judicial review. The court further held that, even if NTCH's claim fell within the compass of 47 U.S.C. 208(b), the court still did not have jurisdiction to address it. In this case, the order issued by the Bureau was not an order of the Commission. View "NTCH, Inc. v. FCC" on Justia Law

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The Supreme Court denied the request of Relators - Cincinnati Enquirer and Columbus Dispatch - for a writ of mandamus seeking to compel the release of unreacted reports on the autopsies of eight members of the Rhoden and Gilley families, who were murdered in Pike County in 2016. The court also denied the Enquirer’s motion for oral argument and the Dispatch’s motion to compel access to unreacted autopsy reports filed under seal with the Supreme Court. The Enquirer filed this original action against the Pike County Coroner’ Office seeking a writ of mandamus to compel release of the final autopsy reports regarding the eight decedents. The Dispatch filed a separate original action in this court seeking the same relief. Redacted copies of the eight final autopsy reports were subsequently released. The Supreme Court subsequently permitted the unreacted autopsy reports to be filed under seal. The Supreme Court denied the Enquirer’s and the Dispatch’s motions and the requested writ of mandamus, holding that autopsy reports qualify as confidential law enforcement investigatory records (CLEIR), and therefore, the information is exempt from public disclosure pursuant to the CLEIR exception while the investigation into the murders is ongoing. View "State ex rel. Cincinnati Enquirer v. Pike County Coroner's Office" on Justia Law

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Bartholomew publishes Christian ministry music and is a volunteer national spokesperson and the opening act for "Mission: PreBorn" concerts. Bartholomew wrote a pro-life song, “What Was Your Name,” produced a video for the song, and created an account with YouTube, agreeing to be bound by its terms of service. Bartholomew uploaded the video to YouTube, which assigned a URL so that it could be viewed on the internet. Bartholomew publicly shared the URL. By the time YouTube removed it, she claims, the video had been viewed over 30,000 times. The URL for Bartholomew’s video opened an internet page with the image of a distressed face and a statement: This video has been removed because its content violated YouTube’s Terms of Service.’ The screen did not refer to Bartholomew. It contained a hyperlink to a list of examples and tips, YouTube’s “Community Guideline Tips.” Bartholomew sued, claiming that the statement and the Guidelines harmed her reputation (libel per quod). The court of appeal affirmed dismissal, reasoning that, given the breadth of YouTube’s terms of service, and even taking into consideration Bartholomew’s profession, the statement cannot be deemed to subject her to “hatred, contempt, ridicule, or obloquy, or [cause her] to be shunned or avoided” or tend to “injure [her] in [her] occupation.” View "Bartholomew v. YouTube, LLC" on Justia Law

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After receiving the answer to two certified questions from the Nevada Supreme Court, the Second Circuit affirmed the district court's dismissal of plaintiff's defamation suit. The Nevada Supreme Court held that a hyperlink to source material about a judicial proceeding may suffice as a report within the common law fair report privilege, and that the online petition, as it existed when plaintiff's complaint was filed, fell within the purview of Nevada's fair report privilege. The state court also held that, pursuant to Delucchi v. Songer, 396 P.3d 826 (Nev. 2017), Nevada's anti-SLAPP statute covers communication that is aimed at procuring any governmental or electoral action, result or outcome which is truthful or is made without knowledge of its falsehood, even if that communication was not addressed to a government agency. In this case, plaintiff failed to allege knowledge of falsity, much less facts to support such a conclusion. Therefore, the court affirmed the district court's denial of plaintiff's request for additional discovery and the district court's application of the anti‐SLAPP statute to this case. View "Adelson v. Harris" on Justia Law