The 1988 Child Protection and Obscenity Enforcement Act requires producers of visual depictions of “actual sexually explicit conduct” to keep records documenting the identity and age of every performer in those depictions, 18 U.S.C. 2257(a). The 2006 Adam Walsh Child Protection and Safety Act, 18 U.S.C. 2257A, extended similar requirements to producers of depictions of “simulated sexually explicit conduct.” Producers are required to examine “an identification document” for each performer and maintain records listing each performer’s name and birthdate, available for inspection “at all reasonable times.” Producers must “affix[] to every copy” of covered depictions “a statement describing where the records . . . may be located.” After the district court dismissed a challenge, the Third Circuit identified viable as-applied and facial claims under the First and Fourth Amendments. Following remand, the Third Circuit held that the administrative search regime violates the Fourth Amendment, but that the laws did not violate the First Amendment. Reviewing the case for a third time, in light of 2015 Supreme Court holdings (Reed v. Town of Gilbert and City of Los Angeles v. Patel), the Third Circuit determined that the statutes are content-based, and require strict scrutiny review under the First Amendment and remanded. View "Free Speech Coal., Inc. v. Att'y Gen. of the United States" on Justia Law

Attorney Hassell obtained a judgment holding Bird liable for defamation and requiring her to remove defamatory reviews she posted about Hassell on Yelp.com. The judgment contained an order requiring Yelp to remove Bird’s defamatory reviews from its site. Yelp, who was not a party in the defamation action, moved to vacate the judgment. The court of appeal affirmed denial of that motion, but remanded. The court concluded that Yelp is not “aggrieved” by the defamation judgment against Bird, but is “aggrieved” by the removal order; Yelp’s motion to vacate was not cognizable under Code of Civil Procedure section 6632; Yelp has standing to challenge the validity of the removal order as an “aggrieved party,” having brought a nonstatutory motion to vacate; Yelp’s due process rights were not violated by its lack of prior notice and a hearing on the removal order request; the removal order does not violate Yelp’s First Amendment rights to the extent that it requires Yelp to remove Bird’s defamatory reviews; to the extent it purports to cover statements other than Bird’s defamatory reviews, the removal order is an overbroad unconstitutional prior restraint on speech; and Yelp’s immunity from suit under the Communications Decency Act, 47 U.S.C. 230, does not extend to the removal order. View "Hassell v. Bird" on Justia Law

After defendant bought the commercial building housing plaintiffs‘ rug cleaning business, disputes developed. The tenants complained that landlords behavior interfered with their business operations and amounted to a campaign of harassment and retaliation. The tenant obtained a preliminary injunction, enjoining landlord‘s construction activities exceeding a stated decibel level during business hours. Three consumer reviews criticizing tenant’s business subsequently appeared on the Internet site Yelp.com posted from different online aliases. Tenant suspected landlord was responsible and amended the complaint to allege defamation. Landlord successfully moved in limine to exclude the evidence related to the Yelp reviews on hearsay and authenticity grounds. The trial court later granted landlord a directed verdict on the defamation cause of action. A jury found that, although landlord had breached the lease agreement, no damages resulted. The trial court deemed landlord the prevailing party and granted his request for attorney‘s fees. The court of appeal reversed, holding that the exclusion of the Yelp evidence and the resulting disposition of the defamation cause of action was error and it is not clear that the outcome on the contract-based causes of action would have remained unaffected by the presentation of evidence on the alleged defamation. View "Kinda v. Carpenter" on Justia Law

A 2005 Pittsburgh ordinance states that: [n]o person or persons shall knowingly congregate, patrol, picket or demonstrate in a zone extending fifteen (15) feet from any entrance to the hospital and or health care facility," with exceptions for safety personnel and those assisting patients and others. A preamble states: “The exercise of a person’s right to protest or counsel against certain medical procedures is a First Amendment activity that must be balanced against another person’s right to obtain medical counseling and treatment in an unobstructed manner.” Plaintiffs, who engaged in “sidewalk counseling” outside of a Planned Parenthood facility to persuade women to forego abortion services, challenged the ordinance, citing the Supreme Court’s 2014 decision in McCullen v. Coakley, which struck down a similar Massachusetts law. The Third Circuit vacated dismissal of the First Amendment claims. Considered in the light most favorable to the plaintiffs, those claims are sufficient to go forward. The speech at issue is core political speech entitled to maximum First Amendment protection; the city cannot burden it without first trying, or at least demonstrating that it has seriously considered, substantially less restrictive alternatives that would achieve its legitimate, substantial, and content-neutral interests. McCullen indicates that the constitutionality of buffer zone laws turns on the factual circumstances giving rise to the law in each case, so dismissal of such challenges is rarely appropriate at the pleading stage. View "Bruni v. City of Pittsburgh" on Justia Law

North County filed suit against Qwest, a rival local exchange carrier, and, in their official capacities, the Arizona Commission and the Oregon Commission. The commissions are state agencies whose responsibilities include regulating contracts between such carriers. The Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, classifies local exchange carriers into two categories: incumbent local exchange carriers (ILECs), and competitive local exchange carriers (CLECs). Qwest is an ILEC, and North County is a CLEC. The parties entered into interconnection agreements (ICAs) in 1997. When subsequent negotiations for extension agreements were not successful, Qwest filed suit to compel arbitration. The district court granted summary judgment to Qwest. Given (1) the language of the 1997 ICAs’ negotiation clause and the way it was interpreted by both state Commissions below; (2) North County’s conduct in the time leading up to the arbitration proceedings; and (3) North County’s lack of any rebuttal argument before this court; the court is satisfied that the state Commissions had authority to arbitrate the 2011 ICAs because the 1997 ICAs themselves gave Qwest the power to invoke the negotiation-and-arbitration mechanism set forth in 47 U.S.C. 252. The court examined six specific provisions of the 2011 ICAs and rejected North County's challenges. View "NCCC v. Qwest" on Justia Law

The City of Eugene sued to collect from Comcast of Oregon II, Inc. (Comcast) a license fee that the city, acting under a municipal ordinance, imposes on companies providing “telecommunications services” over the city’s rights of way. Comcast did not dispute that it used the city’s rights of way to operate a cable system. However it objected to the city’s collection effort and argued that the license fee was either a tax barred by the Internet Tax Freedom Act (ITFA), or a franchise fee barred by the Cable Communications and Policy Act of 1984 (Cable Act). The city read those federal laws more narrowly and disputed Comcast’s interpretation. The trial court rejected Comcast’s arguments and granted summary judgment in favor of the city. The Court of Appeals affirmed. Finding no reversible error, the Supreme Court affirmed. View "City of Eugene v. Comcast of Oregon II, Inc." on Justia Law

New Cingular Wireless PCS LLC, an affiliate of AT&T Mobility LLC, provides both wireless voice telephone services and data services to customers in the city of Clyde Hill. Clyde Hill imposes a local utility tax on wireless telephone services, which applies to both voice and data services. New Cingular had for years collected utility taxes from Clyde Hill's residents on all charges for wireless and telephone voice and data services, and paid the tax to the city. In this case, the issue presented for the Supreme Court's review was whether the cellular service provider could challenge a city fine through an action for declaratory judgment in superior court. The trial court dismissed, holding that a declaratory judgment action was improper and judicial review should have been sought by way of a statutory writ of review under RCW 7 .16.040. The Court of Appeals reversed, reinstating the declaratory action and remanding for a decision on the merits. Finding no reversible error in the Court of Appeals' judgment, the Supreme Court affirmed. View "New Cingular Wireless PCS, LLC v. City of Clyde Hill" on Justia Law

Section 202(h) of the 1996 Telecommunications Act, 110 Stat. 56, requires the Federal Communications Commission to periodically examine its broadcast ownership rules to limit consolidation in the industry. After the Third Circuit reviewed the Commission’s 2002 and 2006 reviews of its ownership rules, “the process broke down.” The 2010 and 2014 reviews are not complete. In 2016, the Third Circuit held that the Commission has unreasonably delayed action on its definition of an “eligible entity,” a term it has attempted to use as a lynchpin for initiatives to promote minority and female broadcast ownership, and ordered mediation. The court speculated that it might be necessary to invalidate FCC rules in the future if the Commission does not act quickly to carry out its legislative mandate. The court vacated a rule based on Commission’s 2014 determination that parties were evading its limits on the number of television stations that an entity can own through the influence exerted by advertising contracts known as joint sales agreements. The rule was procedurally invalid because it was adopted even though the Quadrennial Review cycle was severely backlogged. View "Howard Stirk Holdings LLC v. Fed. Commc'ns Comm'n" on Justia Law

Petitioners seek review of the FCC's order finding that the rates it charged long-distance telephone carrier AT&T for use of its network exceeded the amount allowed by Commission regulations. The court concluded that the Commission reasonably concluded that Great Lakes was subject to the Commission’s benchmark rule in the years prior to AT&T’s 2014 complaint. Because the Commission failed to adequately explain its conclusion that Great Lakes did not qualify for the Commission’s “rural exemption,” which would have allowed it to charge the challenged rates, the court remanded the issue to the Commission for further consideration. The court also concluded that the Commission reasonably selected the correct incumbent local exchange carrier or ILEC for purposes of determining the applicable benchmark rate. The court disposed of Great Lakes' remaining challenges and denied the petition for review in all other respects. View "Great Lakes Comnet, Inc. v. FCC" on Justia Law

Left Field publishes Chicago Baseball magazine, producing four issues per baseball season. Copies are sold for $2 outside Wrigley Field before the Chicago Cubs’ home games. On the day of the Cubs’ 2015 home opener, Chicago police officer Voulgaris saw Left Field’s editor, Smerge, selling the magazine at the corner of Clark and Addison streets. Voulgaris told Smerge to move across the street to comply with Chicago’s Adjacent Sidewalks Ordinance, which forbids all peddling on the streets adjacent to Wrigley Field. Smerge refused to move and was ticketed. Left Field sued under 42 U.S.C. 1983, contending that the ordinance violates the First Amendment. Chicago agreed not to enforce the ordinance pending a decision. The 2015 season ran its course. As the playoffs began, the district court declined to issue a preliminary injunction, noting the density of the area around the field and the tight passages. The Seventh Circuit affirmed. The ordinance does not regulate speech. It regulates peddling, without regard to what the peddler sells. The court noted that Left Field has never applied for a license: while additional issues could arise if the ordinance were applied to newspapers, the court expressed doubt that it would be applied to a newspaper. View "Left Field Media LLC v. City of Chicago" on Justia Law