Justia Communications Law Opinion Summaries

The Wisconsin Constitution, Article I, section 26, protects the right to hunt. Since 1990, Wisconsin has had a special statute making it a crime to harass hunters in various ways; a 2016 amendment makes it a crime to interfere intentionally with a hunter by “maintaining a visual or physical proximity” to the hunter, by “approaching or confronting” the hunter, or by photographing, videotaping, audiotaping, or otherwise recording the hunter's activity. The plaintiffs oppose hunting. They have observed hunters on public land, have sometimes approached and confronted them, have photographed and filmed hunters’ activities, and intend to continue all those activities.The plaintiffs assert that the prohibitions violate the First and Fourteenth Amendments to the U.S. Constitution. In a pre-enforcement challenge, the district court granted the defendants summary judgment, finding that the plaintiffs lacked standing to bring an as-applied challenge to the law and that their facial constitutional challenges failed on the merits.The Seventh Circuit reversed and remanded, first holding that the plaintiffs have standing to bring both their as-applied and facial challenges before formal enforcement efforts because the statute has been used to harass and intimidate them and has caused them to refrain from engaging in activity protected by the First Amendment. Certain clauses of the law are unconstitutionally vague or overbroad. The statute discriminates against speech and expressive activity based on viewpoint and the defendants have not offered justifications for the provision that satisfy strict scrutiny. View "Brown v. Kemp" on Justia Law

Vidal-Martinez, a non-citizen, was arrested three times for operating a vehicle while intoxicated. DHS detained him and initiated deportation. Vidal-Martinez filed a habeas petition, arguing that his detention was unconstitutional because it impeded his ability to defend himself against the drunk-driving charges. ICE transferred Vidal-Martinez to county custody “until the completion of [the] criminal matter, then released to his ICE detainer.” Vidal-Martinez was convicted of DUI and sentenced to 236 days in jail. He was then returned to ICE custody. Due to a lack of evidence that he posed a flight risk or a danger to the community, the district court granted Vidal-Martinez’s habeas petition and ordered his release.Vidal-Martinez filed a FOIA request, 5 U.S.C. 552, seeking disclosure from ICE of documents related to his custody transfer. ICE produced 561 pages of responsive documents, some of which contained redactions. Vidal-Martinez challenged ICE’s redactions. ICE submitted a Vaughn index and a declaration from its FOIA officer explaining the legal justification for each redaction, citing attorney-client, work product, deliberative process privileges, and identifying information of government employees. Vidal-Martinez responded that ICE committed criminal conduct by transferring him to Indiana, so the crime-fraud exception to attorney-client privilege applied. The district court granted ICE summary judgment. The Seventh Circuit affirmed, finding no factual foundation in the record for criminal conduct or misconduct by ICE. The district court had an adequate factual basis to evaluate ICE’s withholdings. View "Vidal-Martinez v. United States Department Of Homeland Security" on Justia Law

Since 1979, Tennessee has made it a crime for anyone other than election officials to distribute the state’s official form for applying to vote absentee. During much of this time, Tennessee kept close guard of this form to deter fraud. Election officials now make the form widely available online so that eligible voters may easily apply. According to the Plaintiffs, this change has rendered the ban on distributing the application form “outdated.” They want to distribute the form while encouraging absentee voting at their get-out-the-vote drives. They allege that the First Amendment gives them the right to do so and that, because they seek to distribute the form while expressing a political message, the ban is subject to strict scrutiny.The Sixth Circuit affirmed the dismissal of the suit. Tennessee’s ban prohibits an act--distributing a government form--that qualifies as conduct, not speech. While the First Amendment provides some protection to “expressive conduct,” strict scrutiny does not apply to Tennessee’s ban because it neutrally applies no matter the message that a person seeks to convey and because it burdens nobody’s ability to engage in actual speech. At most, the Supreme Court’s lenient First Amendment test for neutral laws that regulate conduct applies and the ban survives that nondemanding test, View "Lichtenstein v. Hargett" on Justia Law

In 2020, Lafayette City Councilmember and former Mayor, Burks, and his wife, Ackley, hosted an open house in their home in support of a school bond measure. The invitation stated Burks was “hosting this event as an individual resident of Lafayette and a father of school-aged children.” Peterson attended and had an “odd” and “stilted” conversation with Ackley in which Peterson referred to Ackley's birthday. Peterson later reposted on his Facebook page a family photo from Ackley’s public Facebook page. In the comments, Peterson wondered where they hid the girls during the open house. He mused, “They live near Burton Valley School … Burks, has a different name than his wife, I wonder what their daughters’ last name is?” Burks felt Peterson “could be a threat” to his wife and daughters. Later, Ackley received a “confusing” letter and check in the mail from Peterson, again mentioning the daughters. The rambling letter was a screed against local politics.Peterson was convicted of stalking and sentenced to two years of probation, with one year of home confinement. The court of appeal reversed. Peterson’s speech acts were constitutionally protected activities. A reasonable listener would not have found Peterson’s speech or speech-related acts a true threat of violence. View "People v. Peterson" on Justia Law

Liapes filed a class action against Facebook, alleging it does not provide women and older people equal access to insurance ads. The Unruh Civil Rights Act prohibits businesses from discriminating against people with protected characteristics (Civ. Code 51, 51.5, 52(a)). Liapes alleged Facebook requires all advertisers to choose the age and gender of users who will receive ads; companies offering insurance products routinely tell it to not send their ads to women or older people. She further alleged Facebook’s ad-delivery algorithm discriminates against women and older people.The trial court dismissed, finding Facebook’s tools neutral on their face and concluding that Facebook was immune under the Communications Decency Act, 47 U.S.C. 230. The court of appeal reversed. Liapes has stated an Unruh Act claim. Facebook, a business establishment, does not dispute women and older people were categorically excluded from receiving various insurance ads. Facebook, not the advertisers, classifies users based on their age and gender via the algorithm. The complaint also stated a claim under an aiding and abetting theory of liability An interactive computer service provider only has immunity if it is not also the content provider. That advertisers are the content providers does not preclude Facebook from also being a content provider by helping develop at least part of the information at issue. View "Liapes v. Facebook, Inc." on Justia Law

During the COVID-19 pandemic, Twitter broadened its definition of censorable, harmful information to include “content that goes directly against guidance from authoritative sources of global and local public health information.” Twitter began permanently suspending any user who received five or more infractions for violating its COVID-19 policy. The plaintiffs,Twitter users who used their accounts to question responses to the COVID-19 pandemic, suffered multiple temporary suspensions. They claim the Biden administration became involved, announcing that “[t]he President’s view is that the major [social-media] platforms have a responsibility ... to stop amplifying untrustworthy content, disinformation, and misinformation, especially related to COVID-19 vaccinations.” Later, the Surgeon General released an advisory statement related to COVID-19 misinformation and (according to Plaintiffs) “command[ed] technology platforms” to take several steps. President Biden stated that social media platforms are “killing people” with COVID-19 misinformation. Days later, USA Today reported that the “[t]he White House is assessing whether social media platforms are legally liable for misinformation.”Plaintiffs sued the Department of Health and Human Services (HHS), asserting claims under the First Amendment, Fourth Amendment, and Administrative Procedure Act, citing HHS’s unlawful efforts to “instrumentalize[] Twitter” to “silenc[e] opinions that diverge from the White House’s messaging on COVID-19.” The Sixth Circuit affirmed the dismissal of the complaint. The plaintiffs have not adequately pleaded that HHS compelled Twitter’s chosen course of conduct, leaving a “highly attenuated chain of possibilities” that is too speculative to establish a traceable harm View "Changizi v. Department of Health and Human Services" on Justia Law

McElhaney’s daughter, L.M., played high school softball. The school's “Parent–player Information” sheet stated: “Playing time is a non-negotiable for coaches to talk directly with parents about.” L.M.’s playing time decreased. McElhaney texted Coach Williams to express his displeasure. Williams responded, indicating McElhaney should reconsider either his tactics or his participation. McElhaney texted a conciliatory reply but Williams forwarded the messages to Principal Stepp, who banned McElhaney from a week’s worth of softball games. McElhaney unsuccessfully challenged but did not honor the suspension. Stepp spotted McElhaney and asked him to leave. Fearing arrest, McElhaney left. He filed suit (42 U.S.C. 1983), asserting that his communications with Williams constituted First Amendment-protected speech and that the school officials had impermissibly retaliated against him for exercising those speech rights and did not afford him due process before infringing on his property right to his season tickets. The district court held that the right to attend games after criticizing the coach was not clearly established, meaning any purportedly retaliatory acts did not violate McElhaney’s settled constitutional rights and that McElhaney did not experience a due process violation because any alleged injury could be remedied through a breach of contract action.The Sixth Circuit reversed. It is clearly established at a low level of generality that when a school employee interacts with a student, speech by the student’s parent about those interactions enjoys First Amendment protection. On remand, the court must resolve whether retaliation occurred. View "McElhaney v. Williams" on Justia Law

International sought permission to erect two two-sided billboards in the City of Troy. These billboards were to be 14 by 48 feet in area and 70 feet in height when mounted; they did not conform to height, size, and setback requirements in the Ordinance. After the City denied its permit application and request for a variance, International sued, citing the First Amendment and arguing that the Ordinance’s variance procedure imposed an invalid prior restraint and that its permit exceptions were content-based restrictions on free speech. The Sixth Circuit affirmed summary judgment to the City on International’s prior-restraint claim but remanded for the court to consider whether the Ordinance, with the permit exceptions, survived strict scrutiny.The district court held that the permitting requirements, with the content-based exceptions. did not survive strict scrutiny but that the permit exceptions are severable, leaving intact the Ordinance’s height, size, and setback requirements. The Sixth Circuit affirmed. International’s proposed billboards do not satisfy those valid, content-neutral standards, View "International Outdoor, Inc. v. City of Troy" on Justia Law

Before Dante (age 2) died, his aunt, Mercado, filed a report with the Office of Children and Youth Services, which investigated Dante’s welfare. Bowie, who was dating Dante’s mother, was charged with murdering him. In criminal discovery, Bowie got documents from the investigation that were stored in a statewide database. He gave them to Mercado, who believed he was innocent. Mercado, wanting to blame Youth Services for failing to protect her nephew, started a Facebook group, “Justice for Dante.” and posted some of the documents. Bowie was acquitted. In the meantime, York County District Attorney Sunday charged Mercado with violating Pennsylvania’s Child Protective Services Law. The Law makes it a crime to willfully release or permit the release of any information contained in the Statewide child abuse database to persons or agencies not permitted to receive that information. The DA later dismissed the charge,Schrader, Dante’s grandmother, wants to publish documents generated during Youth Services’ investigation to further publicize Youth Services’ failures. She fears that she will be prosecuted if she does so. Invoking the First Amendment, she claimed that the Law is unconstitutional both on its face and as applied to her. The district court agreed with the as-applied challenge and preliminarily enjoined the prosecution of Schrader for sharing child-abuse documents concerning Dante. The Third Circuit vacated with instructions to narrow the injunction to eliminate a reference to "other documents" that may come into Schrader's possession. Under the content-focused test, the Law is likely unconstitutional as applied here. View "Schrader v. District Attorney York County" on Justia Law

Smith, wanting to expand her graphic design business to include wedding websites, worried that the Colorado Anti-Discrimination Act would require her to create websites celebrating marriages that defy her belief that marriage should be between one man and one woman. Smith intends to produce a story for each couple using her own words and original artwork, combined with the couple’s messages. The Tenth Circuit affirmed the denial of Smith’s request for an injunction.The Supreme Court reversed. The First Amendment prohibits Colorado from forcing a website designer to create expressive designs conveying messages with which the designer disagrees. The First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech “misguided.” Generally, the government may not compel a person to speak preferred messages. The wedding websites Smith seeks to create involve her speech and are pure speech protected by the First Amendment. Colorado seeks to put Smith to a choice prohibited by precedent. If she wishes to speak, she must either speak as Colorado demands or face sanctions for expressing her own beliefs.Public accommodations laws are vital to realizing the civil rights of all Americans; governments have a “compelling interest” in eliminating discrimination in places of public accommodation. States may protect gay persons, just as they protect other classes of individuals. However, public accommodations laws are not immune from the demands of the Constitution. Smith does not seek to sell an ordinary commercial good but intends to create “customized and tailored” expressive speech “to celebrate and promote the couple’s wedding.” Speakers do not shed their First Amendment protections by accepting compensation or employing the corporate form to disseminate their speech. Smith will gladly conduct business with those having protected characteristics when the product she is creating does not violate her beliefs. View "303 Creative LLC v. Elenis" on Justia Law