In 2012 the Golans received two unsolicited, prerecorded messages on their home phone line. Each message, recorded by Mike Huckabee, stated: "Liberty. This is a public survey call. We may call back later." The Golans had not answered the phone; more than one million people did and received a much longer message. The Golans filed a putative class action, alleging that the phone calls were part of a telemarketing campaign to promote the film, Last Ounce of Courage, in violation of the Telephone Consumer Protection Act, 47 U.S.C. 227, and the Missouri Do Not Call Law. The district court dismissed with prejudice, concluding that the Golans did not have standing and were inadequate class representatives, being subject to a "unique defense" because they had heard only the brief message recording on their answering machine. The Eighth Circuit reversed and remanded. The calls were initiated and transmitted in order to promote Last Ounce of Courage and qualified as "telemarketing" even though the messages never referenced the film. Because the purpose of the calls was the critical issue, the Golans were not subject to a unique defense. Nor did they suffer a different injury than class members who heard the entire message. View "Golan v. Veritas Entm't, LLC" on Justia Law

Pharmacy benefit manager Medco is an intermediary between health plan sponsors (often employers) and prescription drug companies, enabling plans to offer less expensive prescription drug benefits to their members. Medco keeps an updated list of available medicines (formulary) available and sends that list to prescribers and to plan sponsors so they can keep costs down for members. Sandusky provides chiropractic services and prescribes medications to patients who are members of prescription drug plans contracted with Medco. Medco faxed part of its formulary to Sandusky in June 2010, asking Sandusky to “consider prescribing plan-preferred drugs” to “help lower medication costs. Other than listing Medco’s name and number, the fax did not promote Medco’s services and did not solicit business. Three months later, Medco sent Sandusky another fax that informed Sandusky that a certain respiratory drug brand was preferred over another brand, and could save patients money. Sandusky, on behalf of a proposed class, sued Medco, claiming that the faxes were “unsolicited advertisements” prohibited by the Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(C). The Sixth Circuit affirmed summary judgment in favor of Medco, finding that the faxes were not advertisements as a matter of law because their primary purpose was informational rather than promotional. View "Sandusky Wellness Ctr., LLC v. Medco Health Solutions, Inc." on Justia Law

Elonis used the Web site Facebook to post lyrics containing graphically violent language and imagery concerning his wife, co-workers, children, and law enforcement, interspersed with disclaimers that the lyrics were “fictitious” and that Elonis was exercising his First Amendment rights. His boss fired him. His wife obtained an order of protection. Elonis’s former employer contacted the FBI. The agency monitored Elonis’s Facebook activity and charged him under 18 U.S.C. 875(c), which makes it a crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.” Elonis requested a jury instruction that the government was required to prove that he intended to communicate a “true threat.” The district court told the jury that Elonis could be found guilty if a reasonable person would foresee that his statements would be interpreted as a threat. Elonis was convicted. The Third Circuit affirmed. The Supreme Court reversed and remanded. The instruction, requiring only negligence with respect to communication of a threat, is not sufficient to support conviction under Section 875(c). Mere omission from a criminal enactment of any mention of criminal intent does not eliminate that requirement. Wrongdoing must be conscious to be criminal. This does not mean that a defendant must know that his conduct is illegal, but a defendant must have knowledge of “the facts that make his conduct fit the definition of the offense.” In some cases, a general requirement that a defendant act knowingly is sufficient, but where such a requirement would not protect an innocent actor, the statute must be read to require specific intent. The crucial element separating legal innocence from wrongful conduct under Section 875(c) is the threatening nature of the communication, so the mental state requirement must apply to the fact that the communication contains a threat. The requirement is satisfied if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat. The Court did not address whether a mental state of recklessness would also suffice or First Amendment issues. View "Elonis v. United States" on Justia Law

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, date of birth, and any other name that the performer has previously used, and to maintain records, available for inspection “at all reasonable times.” Producers must “affix[] to every copy” of covered depictions “a statement describing where the records required . . . with respect to all performers . . . 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. On remand, the district court upheld the laws except that inspections without prior notice to examine records located in private residences violated the Fourth Amendment. The court granted only declaratory relief. The Third Circuit affirmed in part. The administrative search regime violates the Fourth Amendment as applied; the laws do not violate the First Amendment. View "Free Speech Coal. v. Att'y Gen. of the United States" on Justia Law

U.S. Congresswoman Miller received a letter threatening to kill her family if she did not send money. The letter was in distinctive handwriting, bearing a Pontiac, Michigan return address. FBI Agent Herrera interviewed a woman (Hiller) at the address. She denied writing the letter, which, she believed was sent by her neighbor, Harris. Hiller provided Herrera with letters that Harris had written and hand-delivered to her a year earlier. After Hiller to Harris to stop writing to her, Orsette, the area’s postal carrier, gave Hiller a threatening letter that was addressed to Senator Stabenow and bore Hiller’s return address. Hiller received several letters that she did not write but that listed her return address. The letters had similar distinctive and nearly illegible writing. She also received unsolicited magazine subscriptions. Orsette was familiar with Harris, who often handed Orsette magazine subscription cards bearing another person’s name. Harris denied writing the letters. Herrera obtained a warrant and recovered envelopes, stamps, and a notepad matching those used in the Miller letter. No fingerprints or DNA were found on the Miller letter, but other letters bore salivaand were written in the same handwriting as the Miller letter. A third such letter contained Harris’ fingerprint. Harris was convicted of mailing threatening communications, 18 U.S.C. 876(c). The Sixth Circuit affirmed, rejecting challenges to testimony from witnesses that identified Harris as the author of the letter based on familiarity with his handwriting. View "United States v. Harris" on Justia Law

Smith sought a conditional use permit (CUP) to build a 300-foot-tall cellular tower on a Washington County site zoned "Agriculture/Single-Family Residential." There are homes within one-quarter of a mile of the site. The Zoning Code authorizes a CUP upon findings: That the proposed use is compatible with the surrounding area; will not be detrimental to or endanger the public health, safety, morals, comfort or general welfare; and will not be injurious to use and enjoyment of other property in the area for purposes already permitted, nor substantially diminish and impair property values within the area. The Planning Board approved the application. Neighbors appealed to the Quorum Court with arguments focused on "safety," "property values," the tower's "fit" with the area, proximity to their homes, and having purchased their homes specifically because of the surrounding scenery and views. Hearing participants discussed cellular phone reception; potential safety issues, particularly in inclement weather; proximity to residences; and impact on nearby residents' views and property values. The application was rejected. The district court and Eighth Circuit affirmed, rejecting arguments that Washington County failed to provide a legally adequate explanation of its reasons for denial and that the denial was not based on substantial evidence in violation of the Telecommunications Act, 47 U.S.C. 332(c)(7)(B). View "Smith Commc'ns, LLC v. Washington Cnty." on Justia Law

The Andermanns obtained mobile phone service from U.S. Cellular in 2000. Their renewable two-year contract was renewed for the last time in 2012. It included an arbitration clause that “survives the termination of this service agreement” and provided that “U.S. Cellular may assign this Agreement … without notice.” In 2013 U.S. Cellular sold the Andermanns’ contract to Sprint, without notice to the Andermanns. Months later Sprint sent Andermanns a letter, informing them of the sale and that their mobile service would be terminated on January 31, 2014 because Andermanns’ phones were not compatible with Sprint’s network. In December Sprint phoned to remind them that their service was about to expire, and added that Sprint had “a great set of offers and devices available to fit [their] needs.” Sprint made six such calls. Andermanns answered none, but filed a purported class action, contending that the unsolicited advertisements contained in the calls violated the Telephone Consumer Protection Act, 47 U.S.C. 227. Sprint requested arbitration, 9 U.S.C. 4. The district court denied Sprint’s motion. The Seventh Circuit reversed, finding connection to the contract, asking: What would Sprint have done if forbidden to call the customers whom it had inherited from U.S. Cellular and must now terminate because of technical incompatibility? View "Andermann v. Sprint Spectrum, L.P." on Justia Law

Petitioners, large entertainment companies, sought review of the Commission's order requiring the major cable companies who were applying for merger to submit certain proprietary documents for review and proposal to make them available for examination by other players in the cable industry on an expedited schedule. The court granted the petition for review and vacated the order, concluding that the Commission has failed to overcome its presumption against disclosure of confidential information by failing to explain why VPCI is a "necessary link in a chain of evidence that will resolve an issue before the Commission." The order amounts to a substantive and important departure from prior Commission policy, and the Commission has failed to explain the departure. View "CBS Corp. v. FCC" on Justia Law

Plaintiffs challenged, on statutory and constitutional grounds, the telephone metadata program under which the NSA collects in bulk "on an ongoing daily basis" the metadata associated with telephone calls made by and to Americans. The NSA aggregates those metadata into a repository or data bank that can later be queried. The district court granted defendants' motion to dismiss and denied plaintiffs' request for a preliminary injunction. The court concluded that the plaintiffs have standing to sue; the court disagreed with the district court insofar as it held that plaintiffs are precluded from bringing suit against the government and hold that they have a right of action under the Administrative Procedure Act (APA), 5 U.S.C. 702; on the merits, the court concluded that § 215 of the PATRIOT Act, Pub. L. No. 107-56, section 215, does not authorize the telephone metadata collection program; the court did not address the constitutionality of the program; and the court declined to conclude that a preliminary injunction is required, leaving it to the district court to reconsider, in the first instance, the propriety of preliminary relief in light of a correct understanding of the governing law. Therefore, the district court erred in ruling that section 215 authorizes the telephone metadata collection program. The telephone metadata program exceeds the scope of what Congress has authorized and therefore violates § 215. The court vacated and remanded for further proceedings. View "ACLU v. Clapper" on Justia Law

Florida voters elect judges. The Florida Supreme Court adopted Canon 7C(1) of its Code of Judicial Conduct, stating that judicial candidates “shall not personally solicit campaign funds . . . but may establish committees of responsible persons” to raise money for election campaigns. Yulee mailed and posted online a letter soliciting financial contributions to her campaign for judicial office. The Florida Bar disciplined her for violating a Bar Rule requiring candidates to comply with Canon 7C(1). The Florida Supreme Court upheld the sanction against a First Amendment challenge. The U.S. Supreme Court affirmed. Florida’s interest in preserving public confidence in the integrity of its judiciary is compelling.. Unlike the legislature or the executive, the judiciary “has no influence over either the sword or the purse,” so its authority largely depends on the public’s willingness to respect its decisions. Canon 7C(1) raises no fatal underinclusivity concerns. The solicitation ban aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary: it is not riddled with exceptions. Allowing a candidate to use a committee and to write thank you notes reflect Florida’s effort to respect the First Amendment interests of candidates and contributors. Canon 7C(1) is not overinclusive It allows judicial candidates to discuss any issue with any person at any time; to write letters, give speeches, and put up billboards; to contact potential supporters in person, on the phone, or online; and to promote their campaigns through the media. Though they cannot ask for money, they can direct their campaign committees to do so. Florida has reasonably determined that personal appeals for money by a judicial candidate inherently create an appearance of impropriety. Canon 7C(1) must be narrowly tailored, not “perfectly tailored” to address that concern. View "Williams-Yulee v. Florida Bar" on Justia Law