Arla, a Denmark-based global dairy conglomerate, launched a $30 million advertising campaign aimed at expanding its U.S. cheese sales, branded “Live Unprocessed.” The ads assure consumers that Arla cheese contains no “weird stuff” or “ingredients that you can’t pronounce,” particularly, no milk from cows treated with recombinant bovine somatotropin (“rbST”), an artificial growth hormone. The flagship ad implies that milk from rbST-treated cows is unwholesome. Narrated by a seven-year-old girl, the ad depicts rbST as a cartoon monster with razor-sharp horns. Elanco makes the only FDA-approved rbST supplement. Elanco sued, alleging that the ads contain false and misleading statements in violation of the Lanham Act. Elanco provided scientific literature documenting rbST’s safety, and evidence that a major cheese producer had decreased its demand for rbST in response to the ads. The Seventh Circuit affirmed the issuance of a preliminary injunction, rejecting arguments that Elanco failed to produce consumer surveys or other reliable evidence of actual consumer confusion and did not submit adequate evidence linking the ad campaign to decreased demand for its rbST. Consumer surveys or other “hard” evidence of actual consumer confusion are unnecessary at the preliminary-injunction stage. The evidence of causation is sufficient at this stage: the harm is easily traced because Elanco manufactures the only FDA-approved rbST. The injunction is sufficiently definite and adequately supported by the record and the judge’s findings. View "Eli Lilly and Co. v. Arla Foods USA, Inc." on Justia Law

Minnesota law prohibits wearing a “political badge, political button, or other political insignia” inside a polling place on Election Day, Minn. Stat. 211B.11(1), including clothing and accessories with political insignia. Election judges are authorized to decide whether a particular item is banned. Days before the 2010 election, plaintiffs challenged the ban. In response, the state distributed guidance with specific examples of prohibited apparel: items displaying the name of a political party or the name of a candidate, items supporting or opposing a ballot question, “[i]ssue oriented material designed to influence or impact voting,” and “[m]aterial promoting a group with recognizable political views.” Cilek allegedly was turned away from the polls for wearing a “Please I.D. Me” button, a “Don’t Tread on Me” T-shirt, and a Tea Party Patriots logo. The Supreme Court reversed the Eighth Circuit’s rejection of the constitutional challenges. Minnesota’s political apparel ban violates the First Amendment’s Free Speech Clause. Because the ban applies only in a “nonpublic forum,” its content-based restrictions would be constitutional if “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view,” The statute makes no distinction based on the speaker’s political persuasion and serves a permissible objective: to set aside polling places as “an island of calm.” The state may reasonably decide that the interior of the polling place should reflect the distinction between voting and campaigning. However, the “unmoored use of the term “political” in the Minnesota law, combined with haphazard interpretations" render the law unconstitutional for lack of narrow tailoring to serve that objective. Its indeterminate prohibitions present “[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.” An election judge’s own politics may shape his views on what is “political.” View "Minnesota Voters Alliance v. Mansky" on Justia Law

Under Missouri campaign finance law, chapter 130, a “campaign committee” is formed to receive contributions or make expenditures solely to support or oppose particular ballot measures, "such committee shall be formed no later than thirty days prior to the election for which the committee receives contributions or makes expenditures." Thirteen days before the November 2014 general election, a group formed MFA as a campaign committee, to accept contributions and make expenditures in support of Proposition 10. MFA sued to enjoin enforcement of the formation deadline, citing the First Amendment. The district court granted MFA a temporary restraining order. MFA received contributions and made expenditures before the election. After the election, MFA terminated as a campaign committee. The Eighth Circuit affirmed summary judgment in favor of MFA. While a formation deadline by itself might not expressly limit speech, the deadline here is more than a disclosure requirement because it prohibits (or significantly burdens) formation of a campaign committee, a requisite for legally engaging in speech, even if the individual or group is willing to comply with organizational and disclosure requirements. Even if the state’s interest in preventing circumvention of chapter 130’s disclosure regime is compelling, the formation deadline is unconstitutional because it is not narrowly tailored, given its burden on speech and its modest effect on preventing circumvention of the disclosure regime. View "Missourians for Fiscal Accountability v. Klahr" on Justia Law

Under Missouri campaign finance law, chapter 130, a “campaign committee” is formed to receive contributions or make expenditures solely to support or oppose particular ballot measures, "such committee shall be formed no later than thirty days prior to the election for which the committee receives contributions or makes expenditures." Thirteen days before the November 2014 general election, a group formed MFA as a campaign committee, to accept contributions and make expenditures in support of Proposition 10. MFA sued to enjoin enforcement of the formation deadline, citing the First Amendment. The district court granted MFA a temporary restraining order. MFA received contributions and made expenditures before the election. After the election, MFA terminated as a campaign committee. The Eighth Circuit affirmed summary judgment in favor of MFA. While a formation deadline by itself might not expressly limit speech, the deadline here is more than a disclosure requirement because it prohibits (or significantly burdens) formation of a campaign committee, a requisite for legally engaging in speech, even if the individual or group is willing to comply with organizational and disclosure requirements. Even if the state’s interest in preventing circumvention of chapter 130’s disclosure regime is compelling, the formation deadline is unconstitutional because it is not narrowly tailored, given its burden on speech and its modest effect on preventing circumvention of the disclosure regime. View "Missourians for Fiscal Accountability v. Klahr" on Justia Law

Communications configured by the social media user to be public fall within the lawful consent exception to the federal Stored Communications Act’s prohibition on disclosure by social media providers of any communication. See 18 U.S.C. 2701 et seq. The district court denied motions to quash filed by Petitioners - Facebook, Inc., Instagram, LLC, and Twitter, Inc. Petitioners sought to quash subpoenas served on them by two criminal defendants seeking public and private communications from the social media accounts of a homicide victim and a prosecution witness. The appellate court directed the trial court to quash the subpoenas. The Supreme Court vacated the court of appeal’s decision and remanded the matter, holding (1) the court of appeal correctly found the subpoenas unenforceable under the Act with respect to communications addressed to specific persons and communications that were and have remained configured by the registered user to be restricted; but (2) the court of appeal erred in holding that section 2702 of the Act does not bar disclosure by providers of communications that were configured by the registered user to be public and that remained so configured at the time the subpoenas were issued. Rather, under section 2702(b)(3)’s lawful consent exception, a provider must disclose any such communication pursuant to a subpoena that is authorized under state law. View "Facebook, Inc. v. Superior Court of the City and County of San Francisco" on Justia Law

Defendant Asher Adelman established eBossWatch.com, which published an article, “'Bizarre’ and hostile work environment leads to lawsuit.” The article detailed a gender-discrimination, workplace-harassment, and retaliation lawsuit brought against Petro-Lubricant Testing Laboratories, Inc., and its chief executive officer and co-owner, John Wintermute (collectively Wintermute), by a former employee, Kristen Laforgia. More than a year after the article’s publication, Wintermute’s attorney sent a letter to Adelman, contending that the article was false and defamatory, Laforgia’s complaint was baseless, and that Laforgia and Wintermute had settled the lawsuit. In an email response, Adelman defended the article, stating that it was a reporting of Laforgia’s complaint, with a few modifications that, by Adelman’s opinion, made clear the article reported on what was filed in Laforgia’s complaint. Wintermute still filed a defamation action. The trial court found the modified article fell within the ambit of the fair report privilege and dismissed the defamation lawsuit. The Appellate Division disagreed with the trial court, holding that under the single publication rule, a new statute of limitations began to run only “if a modification to an Internet post materially and substantially alters the content and substance of the article.” The panel reasoned that “if a minor modification diminishes the defamatory sting of an article, it should not trigger a new statute of limitations.” The panel therefore dismissed as untimely Wintermute’s defamation lawsuit filed more than one year following publication of the original article. The panel did not decide whether the fair report privilege barred the action. The Court granted Wintermute’s petition for certification. The New Jersey Supreme Court determined genuine issues of disputed fact remained concerning whether Adelman made a material and substantive change to the original article, and the Appellate Division erred in dismissing the defamation action based on the single publication rule. However, the Court found the modified article was entitled to the protection of the fair report privilege. The article was a full, fair, and accurate recitation of a court-filed complaint. The trial court properly dismissed the defamation action, and on that basis the Supreme Court affirmed the Appellate Division’s judgment. View "Petro-LubricantTesting Laboratories, Inc. v. Adelman" on Justia Law

Mohawk, a seller of prescription drugs sent junk faxes to medical providers, advertising the seller’s prices on Bristol-Myers and Pfizer drugs. A recipient filed a putative class-action lawsuit under the Telephone Consumer Protection Act, which makes it unlawful “to send . . . an unsolicited advertisement” to a fax machine, 47 U.S.C. 227(b)(1)(C). Plaintiff first asserted claims only against Mohawk, which never answered the complaint. The district court entered a default judgment. Plaintiff then amended its complaint to assert claims against Bristol and Pfizer, arguing that they had “sent” the unsolicited faxes simply because the faxes mentioned their drugs. The Sixth Circuit affirmed the dismissal of the complaint. To be liable, a defendant must “use” a fax machine or other device “to send . . . an unsolicited advertisement” to another fax machine. Bristol and Pfizer neither caused the subject faxes to be conveyed nor dispatched them in any way; only Mohawk did those things. Bristol and Pfizer, therefore, did not “send” the faxes and thus have no liability for them. View "Health One Medical Center v. Bristol-Myers Squibb Co." on Justia Law

Chicago’s Independent Police Review Authority (IPRA) investigated complaints against police, including domestic violence, excessive force, and death in custody, and made disciplinary recommendations: allegations were “sustained,” “not sustained,” “exonerated,” or “unfounded.” Investigators interviewed witnesses and procured evidence to draft reports. IPRA’s Administrator retained final responsibility for making recommendations and establishing “rules, regulations and procedures for the conduct of investigations.” Davis became an IPRA investigator in 2008. Davis alleges that in 2014-2015, his supervisors ordered Davis to change “sustained” findings and make his reports more favorable to the accused officers. Davis refused and was allegedly threatened to with termination. Davis alleges that they requested Word versions of Davis’s reports to alter them to look like Davis had made the changes. The administrator then implemented a policy requiring his approval for all “sustained” findings: if an investigator refused to make a recommended change, he would be disciplined for insubordination. Davis again refused to change “sustained” findings and was fired. The Seventh Circuit affirmed the dismissal of his First Amendment claims. That an employee may have good reasons to refuse an order, does “not necessarily mean the employee has a cause of action under the First Amendment when he contravenes that order.” Because IPRA required Davis to draft and revise reports, his refusal to revise those reports was speech “pursuant to [his] official duties.” He spoke as a public employee, not a private citizen. The First Amendment does not protect this speech. View "Davis v. City of Chicago" on Justia Law

Dennis and Wanda Irish appealed a district court order granting a directed verdict in favor of Jeffrey and Dona Hall. The Irishes brought a defamation action against the Halls after the Halls changed their home wireless internet designation to read, “[D]ennis & [W]anda Irish stocking u2.” The complaint requested an injunction, damages, attorney fees and costs. This followed an acrimonious history between the parties stemming from Wanda Irish’s role as the mayor of the city of Harrison. The district court granted the Halls’ motion for a directed verdict, concluding the statement conveyed via the wireless designation was an opinion, and as such was protected under the First Amendment. The Irishes appealed the district court’s order, and the Halls cross-appealed, challenging the district court’s denial of attorney fees. The Idaho Supreme Court determined the district court erred in granting the Halls’ motion for a directed verdict, finding the phrase “[D]ennis & [W]anda Irish stocking u2” was not a statement of opinion, political criticism, or hyperbole. The Court vacated the directed verdict, affirmed the denial of attorney fees, and remanded for further proceedings. View "Irish v. Hall" on Justia Law

In 2013, federal agents obtained an 18 U.S.C. 2703 warrant requiring Microsoft to disclose all e-mails and other information associated with a customer's account that was believed to be involved in illegal drug trafficking. Microsoft determined that the account’s e-mail contents were all stored in Microsoft’s Dublin, Ireland datacenter and moved, unsuccessfully, to quash the warrant with respect to that information. The court held Microsoft in civil contempt. The Second Circuit reversed, holding that requiring Microsoft to disclose the electronic communications in question would be an unauthorized extraterritorial application of section 2703. In March 2018, Congress enacted and the President signed the Clarifying Lawful Overseas Use of Data Act (CLOUD Act), Pub. L. 115–141, amending the Stored Communications Act, 18 U.S.C. 2701, to add: “A [service provider] shall comply with the obligations of this chapter to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider’s possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States.” The Supreme Court vacated, finding the case moot. No live dispute remains between the parties over the issue with respect to which certiorari was granted; a new warrant replaced the original warrant. View "United States v. Microsoft Corp." on Justia Law