In 2012, the New York Times published the Sanger article, describing a classified government initiative to “undermine the Iranian nuclear program” through “increasingly sophisticated attacks on the computer systems.” Under the Freedom of Information Act (FOIA), 5 U.S.C. 552, Freedom Watch sought records from the Central Intelligence Agency (CIA), the National Security Agency (NSA), the Department of Defense (DoD), and the State Department, including “information that refers or relates in any way to information” released or made available to Sanger. The CIA, NSA, and DoD cited national security; each stated that it could “neither confirm nor deny the existence or non-existence” of responsive records. After FOIA’s deadline expired, Freedom Watch filed suit. The district court dismissed the CIA and NSA based on failure to exhaust administrative remedies; granted DoD summary judgment based on FOIA’s national security exemption; and granted the State Department partial judgment, finding certain requests unduly speculative. Concerning information released to Sanger, the State Department obtained a 60-day extension and produced 79 documents. The court denied a motion to depose a records custodian, finding no evidence of bad faith, and granted the State Department summary judgment. Before oral argument, Freedom Watch moved to supplement the record with news articles relating to the revelation that former Secretary of State Clinton had maintained a private email account on a private server and sought to expand the search on remand. The D.C. Circuit remanded to allow the court to oversee the search of the former Secretary’s emails for records responsive to Freedom Watch’s FOIA request, but otherwise affirmed. View "Freedom Watch, Inc. v. Nat'l Sec. Agency" on Justia Law

In 1998, the Coalition filed a petition alleging that domestic producers of preserved mushrooms were injured by imports of preserved mushrooms from Chile, China, Indonesia, and India being sold in the U.S. at less than fair value. Giorgio accounted for approximately one half of total U.S. production, but was neither a Coalition member nor a petitioner. The International Trade Commission issued questionnaires to domestic producers, including Giorgio. Giorgio responded: “We take no position on Chile, China and Indonesia[.] We oppose the petition against India.” The Department of Commerce initiated an antidumping investigation, “on behalf of the domestic industry,” 19 U.S.C. 1673a(c)(4)(A)(i), noting that supporters of the petition accounted for over 50 percent of production of the domestic producers who expressed an opinion even if Giorgio’s position was not disregarded. Commerce found that dumping had occurred. The ITC determined that the domestic industry was materially injured; Commerce issued corresponding antidumping orders. Customs collected antidumping duties for distribution to “affected domestic producers.” Under the Byrd Amendment, an affected domestic producer “was a petitioner or interested party in support of the petition.” ITC rejected Giorgio’s request to be listed because Giorgio’s responses did not indicate support for the petition. Customs denied Giorgio’s claims for distributions. After the Federal Circuit upheld the Byrd Amendment against a facial First Amendment challenge, the Trade Court dismissed Giorgio’s suit, finding the support requirement constitutional under the standards governing commercial speech because it directly advanced the government’s substantial interest in preventing dumping. The Federal Circuit affirmed. View "Giorgio Foods, Inc. v. United States" on Justia Law

The National Labor Relations Board dismissed a charge that the Union violated the National Labor Relations Act, 29 U.S.C. 158(b)(1)(A), by failing to remove derisive and allegedly threatening comments posted on a Facebook page maintained for Union members. The comments, written by Union members without the permission of the Union, appeared while the Union was on strike against Veolia and made disparaging remarks about people who crossed the picket line. The Board held that the Union was not responsible for the Facebook comments because “the 3 individuals who posted the comments were neither alleged nor found to be agents of the [Union].” The D.C. Circuit affirmed, rejecting an argument that the Union should be held responsible for the Facebook entries posted by Union members because a Union officer controlled the Facebook page. The Union’s private Facebook page was not analogous to misconduct on a picket line; it was not accessible or viewable by anyone other than active Union members and the disputed postings were made by persons who acted on their own without the permission of the Union. View "Weigand v. Nat'l Labor Relations Bd." on Justia Law

The ACLU submitted a California Public Records Act (CPRA) request to Los Angeles County for invoices from any law firm in connection with nine lawsuits “brought by inmates involving alleged jail violence.” It also sought disclosure of service agreements between the County and two consultants and an “implementation monitor.” The County agreed to produce copies of the requested documents related to three lawsuits, which were no longer pending, with attorney-client privileged and work product information redacted. It declined to provide statements for the remaining lawsuits, which were still pending. It averred that the “detailed description, timing, and amount of attorney work performed, which communicates to the client and discloses attorney strategy, tactics, thought processes and analysis” were privileged and exempt from disclosure under Government Code 6254 (k), and 6255(a), and by Business and Professions Code 6149 and 6148. The superior court granted a writ of mandate insofar with respect to billing records, but denied the petition with respect to the agreement between the County and the implementation monitor. The court of appeal vacated, holding that because the CPRA expressly exempts attorney-client privileged communications, the tension must here be resolved in favor of the privilege. Because the invoices are confidential communications under Evidence Code 952, they are exempt from disclosure under Government Code 6254(k). View "Los Angeles Bd. Of Supervisors v. Super. Ct." on Justia Law

In 2014 the Third Circuit decided King v. Governor of the State of New Jersey, rejecting a challenge brought by licensed counselors to the constitutionality of Assembly Bill A3371, a statute banning the provision of “sexual orientation change efforts” (SOCE) counseling to minors. A similar challenge was filed by a 15-year-old minor seeking to undergo SOCE counseling and by his parents. The Third Circuit affirmed dismissal. Having decided, in King, that the statute did not violate the First Amendment rights of those wishing to “speak” the message of SOCE, the court concluded that the statute does not violate the rights of those who wish to receive that message. The court also rejected a parental rights claim. The fundamental rights of parents do not include the right to choose a specific type of provider for a specific medical or mental health treatment that the state has reasonably deemed harmful. View "Doe v. Governor of New Jersey" on Justia Law

Prisoners on death row filed suit, challenging Missouri's execution protocol as violating the federal Controlled Substances Act and the Food, Drug and Cosmetic Act, and based on Eighth Amendment due process, ex post facto, and other claims. The district court sealed certain documents or docket entries, making them inaccessible to the public. There was no indication in the record why the entries were sealed, nor any explanation of what types of documents were sealed. Publisher Larry Flynt filed motions to intervene in both cases, under Federal Rule 24(b), and moved to unseal the records and entries. No party opposed Flynt's motions to intervene. One case had already been dismissed. In his motions, Flynt stated he had an interest in the sealed records as a publisher and as an advocate against the death penalty. Flynt claimed a heightened interest because Franklin, who had confessed to shooting Flynt, was a Missouri death row inmate and a plaintiff in both cases. Franklin was executed in November 2013; on that same day the district court denied Flynt's motion to intervene in one case as moot, and in the other, stating that "generalized interest" does not justify intervention. The Eighth Circuit reversed; for reasons of judicial efficiency, Rule 24(b) intervention is often preferable to filing a separate action. View "Flynt v. Lombardi" on Justia Law

Plaintiff, a nonprofit charitable organization, solicits donations of clothing and shoes at unattended, outdoor donation bins for distribution in other countries. It locates bins at businesses that are “easily visible and accessible” with the consent of the owner. Its representatives generally collect donations weekly to avoid bin overflow. Bins are labeled so that people can report if they are full. In 2012, the city did not regulate donation bins. Plaintiff placed bins at a former grocery store and at a gas station. The city sent a letter claiming that they had “been found to create a nuisance as people leave boxes and other refuse around the containers,” denied a request for review, and removed the bins. A year later, the city council enacted a “total prohibition,” exempting the already-operational Lions Club Recycling. The ordinance states a purpose of preventing blight, protecting property values and neighborhood integrity, avoiding creation and maintenance of nuisances and ensuring safe and sanitary maintenance of properties. The Sixth Circuit affirmed entry of a preliminary injunction, finding that operation of bins to solicit and collect charitable donations qualified as protected speech and that the content-based ordinance fails strict scrutiny because it implements an overly broad, prophylactic ban on all bins so the city can avoid hypothetical nuisances or other issues that may arise in the future. View "Planet Aid v. City of St. Johns" on Justia Law

The Federal Communications Commission denied applications to renew 689 wireless spectrum licenses in the 24 gigahertz (GHz) and 39 GHz bands for failure to meet the “substantial service” performance standard during the license term. FiberTower claimed that the Commission’s interpretation of the performance standard as requiring some actual construction in each license area conflicted with the Commission’s statutory mandate in 47 U.S.C. 309(j)(4)(B). The D.C. Circuit declined to address that argument, which was not presented to the Commission. FiberTower also argued that the Commission’s interpretation of “substantial service” was inconsistent with that standard as originally promulgated by the Commission. The court rejected that argument. The court vacated with respect to 42 licenses because FiberTower claimed that their renewal applications stated construction had occurred. View "FiberTower Spectrum Holdings, LLC v. Fed. Commc'ns Comm'n" on Justia Law

Utrecht represented Loanvest in a lawsuit arising out of a loan that was secured by an interest in Oakland property. Utrecht successfully opposed Madow’s motion for a preliminary injunction that would have prevented Loanvest from paying out of the proceeds of the property’s sale. In 2013, Madow became manager of Loanvest, which then sued Utrecht, claiming breach of the duty of loyalty and “looting” Loanvest to pay other obligations. The trial court dismissed under the anti-SLAPP (strategic lawsuit against public participation) statute (Code Civ. Proc., 425.16), finding that the claim was based on an act in furtherance of the right of petition and that Loanvest failed to make a prima facie showing of its ability to prevail in the action. The court of appeal reversed. Loanvest is not a third party allegedly harmed by Utrecht’s representation of another client, but Utrecht’s former client that allegedly was harmed as the result of his “egregiously breaching the duty of loyalty.” That the complaint refers to another as Utrecht’s “true client” and Loanvest as his “purported client” does not alter that admitted fact. A lawsuit that concerns a breach of duty does not depend on the exercise of a constitutional right. View "Loanvest I, LLC v. Utrecht" on Justia Law

Wright-Darrisaw called the White House Comments Line and, after statements characterized as “foul,” and “irrational,” stated “I’m going to f**k and kill Obama.” A telephone operator transferred her to the Secret Service. The call was not recorded. The Secret Service subpoenaed phone records and determined that Wright-Darrisaw had called the White House Comments Line several times. Wright-Darrisaw admitted to calling to voice her displeasure with child custody laws, but denied making any threats. Wright-Darrisaw was convicted of threatening to kill the President, 18 U.S.C. 871(a), and of making a false statement, 18 U.S.C. 1001(a)(2),and was sentenced to 33 months in prison. The district court declined to apply a four-level decrease in the offense level under U.S.S.G. 2A6.1(b)(6), finding that the threat involved deliberation, and applied a three-level increase under U.S.S.G. 3A1.2(a) because Wright-Darrisaw was motivated by the victim’s status as a government official. The Second Circuit deferred consideration of the sufficiency of the evidence that the communication constituted a “true threat,” pending the Supreme Court’s decision in United States v. Elonis, but remanded for reconsideration of the sentence in light of a Second Circuit holding that “deliberation” under U.S.S.G. 2A6.1(b)(6) is deliberation related to the communication of the threat itself. View "United States v. Wright-Darrisaw" on Justia Law