Justia Communications Law Opinion Summaries

by
The Second Circuit vacated its previous opinion and filed an amended opinion in its place.Plaintiff and Church United filed suit against Vimeo, alleging that the company discriminated against them by deleting Church United’s account from its online video hosting platform. Plaintiffs claimed that Vimeo discriminated against them based on sexual orientation and religion under federal and state law. The district court concluded that Vimeo deleted Church United's account because of its violation of one of Vimeo's published content policies barring the promotion of sexual orientation change efforts (SOCE) on its platform.The court agreed with the district court that Section 230(c)(2) of the Communications Decency Act protects Vimeo from this suit and that plaintiffs have failed to state a claim for relief. In this case, plaintiffs argue that Vimeo demonstrated bad faith by discriminating against them based on their religion and sexual orientation, which they term "former" homosexuality; deleting Church United's entire account, as opposed to only the videos at issue; and permitting other videos with titles referring to homosexuality to remain on the website. However, the court concluded that plaintiffs' conclusory allegations are insufficient to raise a plausible inference of bad faith sufficient to survive a motion to dismiss. The court explained that Vimeo removed plaintiffs' account for expressing pro-SOCE views which it in good faith considers objectionable, and plaintiffs, while implicitly acknowledging that their content violated Vimeo's Terms of Service, nevertheless ignored Vimeo's notice of violation, resulting in Vimeo deleting their account.Plaintiffs have also failed to state a claim under either the New York Sexual Orientation Non-Discrimination Act or the California Unruh Act. Because plaintiffs make no allegation suggesting that Vimeo removed their content for any reason other than this violation of the Terms of Service, plaintiffs' allegations lack the substance required to support an inference of discriminatory intent. View "Domen v. Vimeo, Inc." on Justia Law

by
Competitive carriers” compete with legacy “incumbent carriers,” descendants of AT&T’s broken-up monopoly that typically own local phone networks. Competitive carriers lease or purchase the use of incumbent networks to deliver services and, therefore, have greater geographic flexibility to pursue profitable markets. Servicing toll conference centers has been a particularly lucrative business; fee structures create an incentive to route calls through rural areas and encourage toll conference centers to operate there. As a result, some sparsely populated rural areas receive a disproportionate number of calls, resulting in overloaded networks, call blocking, and dropped calls. Long-distance carriers complained to the FCC.In a 2011 rule, the FCC designated carriers who exploited this regulatory loophole as “access stimulators” and imposed sanctions. The rule was not entirely successful. In 2018, the Commission issued a Notice of Proposed Rulemaking, targeting harmful access stimulation practices. After the close of the comment period, AT&T and NTCA (a trade association ) met with the FCC, which adopted rules largely following those proposed in its draft order but incorporating differentiated definitions proposed by AT&T and NTCA. The rule was intended to "properly align financial incentives by making the access-stimulating [carrier] responsible for paying for the part of the call path that it dictates.”The D.C. CIrcuit rejected a challenge by competitive carriers and companies that offer conference calls. The rule does not exceed the Commission’s statutory authority and is not arbitrary or unreasonable. View "Great Lakes Communication Corp v. Federal Communications Commission" on Justia Law

by
In 2016, a Madison student fired a gun and injured four students. Approximately two years later, the School Board enacted a resolution allowing staff to carry concealed weapons. Around the same time, Madison students walked out of class during the school day to protest gun violence; school administration disciplined those students. The plaintiffs began attending Board meetings. At one meeting, three were not allowed to speak for failure to complete a “public participation form,” in person, at least two business days before the meeting. Another plaintiff finished his (under three-minute) speech while a security officer escorted him from the room.The plaintiffs sued under 42 U.S.C. 1983, challenging the Board Policy’s “use of vague and undefined terms” and “the imposition of content-based restrictions on speech.” The district court granted the Board summary judgment. The Sixth Circuit reversed in part. The Policy’s restrictions on “abusive,” “personally directed,” and “antagonist” statements discriminate based on viewpoint and were unconstitutionally applied to silence the plaintiff. The antagonistic restriction, by definition, prohibits speech opposing the Board. The plaintiff spoke calmly and refrained from personal attacks or vitriol, focusing on his stringent opposition to the Board’s policy and his belief that the Board was not being honest about its motives. The preregistration requirement is a content-neutral time, place, manner restriction that narrowly serves a significant government interest and leaves ample alternative channels. View "Ison v. Madison Local School District Board of Education" on Justia Law

by
To connect a California caller to a California recipient, long-distance carriers must purchase access to local exchange services provided by local carriers (switched access services). Long-distance carriers have no control over which local carrier will provide switched access services and “have no choice but to use this service." In its complaint to the Public Utilities Commission, Qwest (a long-distance carrier) alleged that local carriers discriminated against it by providing other long-distance carriers, AT&T and Sprint, with discounted rates for switched access services. Qwest was not charged more than the rates set forth in the local carriers’ tariffs. The Commission concluded Qwest showed that it was similarly situated to AT&T and Sprint and that there was no rational basis for treating Qwest differently with respect to the rates. The court of appeal affirmed, rejecting challenges to the Commission failing to conduct an additional evidentiary hearing, finding Qwest was similarly situated to the Contracting Carriers without considering various factors the Commission identified in earlier Decisions; treating differences in the cost of providing service as the only “rational basis” for different rates; concluding Qwest is entitled to refunds; and in determining for the first time during the rehearing that switched access is a monopoly bottleneck service. View "Bullseye Telecom, Inc. v. California Public Utilities Commission" on Justia Law

by
FBI agents impersonated members of the press so that they could trick an unknown student who had threatened to bomb his school into revealing his identity. When news of the FBI’s tactics became public, media organizations were incensed that their names and reputations had been used to facilitate the ruse. The Reporters Committee filed Freedom of Information Act, 5 U.S.C. 552(a)(3), requests seeking more information about the FBI’s ploy. The district court ruled that the government could withhold from disclosure dozens of the requested documents under FOIA Exemption 5, which states that agencies need not disclose “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” The court ruled that the documents are protected by the common law deliberative process privilege and that their disclosure would likely cause harm to the agency’s deliberative processes going forward.The D.C. Circuit affirmed in part. The government properly withheld the emails in which FBI leadership deliberated about appropriate responses to media and legislative pressure to alter FBI undercover tactics and internal conversations about the implications of changing undercover practices going forward. The government did not satisfy its burden to show either that the other documents at issue were deliberative or that their disclosure would cause foreseeable harm. View "Reporters Committee for Freedom of the Press v. Federal Bureau of Investigation" on Justia Law

by
The Supreme Court dismissed this appeal concerning whether the Kansas Open Records Act (KORA), Kan. Stat. Ann. 45-215 et seq., requires a Kansas district court to make audio records of open court proceedings available for public inspection, holding that Appellant lacked standing.Appellant made a written request to listen to and copy digital audio recordings made during two public court hearings. Appellant was neither a party in the case nor counsel for any party. When Appellant was denied access to the recordings he sought declaratory and injunctive relief. The district court dismissed the claims, holding that the audio recordings were exempt from disclosure and that Appellant had no constitutional or common-law right to the recordings. The court of appeals reversed, holding (1) Appellant did not meet his burden to establish his standing; and (2) therefore, this Court and the court of appeals lacked jurisdiction over this appeal. View "Baker v. Hayden" on Justia Law

by
The Supreme Court vacated the circuit court's judgment on the pleadings in favor of Governor Michael Parson and Michelle Hallford, the custodian of records for the governor's office (collectively, the Governor's Office) and dismissing the underlying lawsuit, holding that the Governor's Office was not entitled to judgment, as a matter of law, on the face of the pleadings. This lawsuit stemmed from two public records requests Plaintiff made under the Sunshine Law, Mo. Rev. Stat. 610.010-.035. Plaintiff argued that the Governor's Office violated the Sunshine Law when it required Plaintiff to prepay an estimate of costs for his first request, arbitrarily refused to waive fees associated with his first request, failed to explain its estimated delay in producing certain requested records, and impermissibly redacted certain records. The circuit court entered judgment on the pleadings in favor of the Governor's Office. The Supreme Court vacated the judgment, holding that the circuit court erred in sustaining the Governor's Office's motion for judgment on the pleadings as to several issues. View "Gross v. Parson" on Justia Law

by
Five former employees of national security agencies who, during their employment, had clearances for access to classified and sensitive information, filed suit against the CIA, the Department of Defense, the National Security Agency, and the Office of the Director of National Intelligence. They facially challenged the agencies’ requirements that current and former employees give the agencies prepublication review of certain materials that they intend to publish to allow the agencies to redact information that is classified or otherwise sensitive to national security. They alleged that the agencies’ regimes “fail to provide former government employees with fair notice of what they must submit,” “invest executive officers with sweeping discretion to suppress speech[,] and fail to include procedural safeguards designed to avoid the dangers of a censorship system.”The Fourth Circuit affirmed the dismissal of the suit, holding that the prepublication review regimes were “reasonable” measures to protect sensitive information and did not violate the plaintiffs’ First Amendment rights. The regimes were not unduly vague under the Fifth Amendment; they adequately informed authors of the types of materials they must submit and established for agency reviewers the kinds of information that can be redacted. View "Edgar v. Haines" on Justia Law

by
Puma, a pharmaceutical company, created an investor presentation during a proxy contest with Eshelman, a Puma shareholder and the founder of PPD, another pharmaceutical company. Puma invited its shareholders to visit a link on its website where it had published the presentation, which indicated that, a decade earlier, while Eshelman was CEO of PPD, a clinical investigator falsified documents. The presentation was published at least 198 times. Puma also filed the presentation with the SEC, which made it permanently accessible on its website.Eshelman, a resident of North Carolina, initiated a diversity action with state-law claims of defamation. Puma is incorporated in Delaware and has its principal place of business in California; Auerbach, Puma’s CEO, resides in California. The court found defamatory per se Puma’s statements that Eshelman was “involved in clinical trial fraud” and that Eshelman was replaced as CEO after being forced to testify regarding fraud in 2008. A jury awarded Eshelman $15.85 million in compensatory damages and $6.5 million in punitive damages.The Fourth Circuit affirmed as to liability but vacated the award after finding that Puma waived its personal jurisdiction claim. Each of the statements at issue is capable of a singular, defamatory interpretation but “there is no evidence justifying such an enormous award.” View "Eshelman v. Puma Biotechnology, Inc." on Justia Law

by
In 2019, the television program CBS This Morning broadcast interviews with two women who accused Fairfax, the Lieutenant Governor of Virginia, of sexual assault. Fairfax had previously denied the allegations. Although he admitted that both sexual encounters occurred, he claimed they were entirely consensual. The CBS interviewer, Gayle King read from a statement Fairfax had given CBS denying the allegations. King directed viewers to Fairfax’s full statement on CBS’s website. Fairfax later issued a public letter to a North Carolina district attorney, alleging for the first time the existence of an eyewitness. Fairfax demanded that CBS retract the interviews, and CBS refused. Fairfax sued CBS for defamation and intentional infliction of emotional distress. The district court dismissed the complaint in its entirety but denied CBS’s motion for attorney’s fees and costs finding that CBS established its entitlement to statutory immunity under Virginia’s anti-SLAPP (strategic lawsuit against public participation) statute.The Fourth Circuit affirmed. Fairfax’s complaint fails to plausibly allege that CBS made the allegedly defamatory statements with knowledge or reckless disregard of their falsity, as required to state a claim for defamation of a public official. The fee-shifting statute is discretionary, not mandatory or presumptive. Fairfax’s allegations did not plausibly allege that CBS broadcast its This Morning programs despite entertaining “serious doubts as to the truth” of those broadcasts. View "Fairfax v. CBS Corp." on Justia Law