Justia Communications Law Opinion Summaries

Boston’s City Hall Plaza has three flagpoles; one flies the American flag and another the state flag. The city’s flag usually flies from the third pole but groups may hold ceremonies on the plaza during which participants may hoist a flag of their choosing on the third pole. Over 12 years, Boston approved the raising of about 50 unique flags for 284 such ceremonies, most were other countries’ flags, but some were associated with groups or causes. In 2017, Camp Constitution asked to hold an event on the plaza to celebrate the civic and social contributions of the Christian community and to raise the “Christian flag.” Worried that flying a religious flag could violate the Establishment Clause, the city approved the event but told the group it could not raise its flag. The district court and First Circuit upheld that decision.The Supreme Court reversed. Boston’s flag-raising program does not express government speech so Boston’s refusal to let Camp Constitution fly its flag violated the Free Speech Clause. Employing a “holistic inquiry,” the Court noted that the history of flag flying, particularly at the seat of government, supports Boston, but Boston did not shape or control the flags’ content and meaning and never intended to convey the messages on the flags as its own. The application process did not involve seeing flags before plaza events. The city’s practice was to approve flag raisings without exception. When the government does not speak for itself, it may not exclude private speech based on “religious viewpoint”; doing so “constitutes impermissible viewpoint discrimination.” View "Shurtleff v. Boston" on Justia Law

Novak created “The City of Parma Police Department” Facebook account to exercise his “fundamental American right” of “[m]ocking our government officials.” He published posts “advertising” free abortions in a police van and a “Pedophile Reform event.” Some readers called the police station. Officers verified that the official page had not been hacked, then posted a notice on the Department’s page, confirming that it was the official account and warning that the fake page was “being investigated.” Novak copied that post onto his knockoff page. Officers asked Facebook to preserve all records related to the account and take down the page. Lieutenant Riley issued a press release and appeared on the nightly news. Novak deleted the page. The investigation continued. Officers got a search warrant for Facebook, discovered that Novak was the author, then obtained an arrest warrant and a search warrant based on an Ohio law that makes it illegal to use a computer to disrupt or impair police functions. Officers arrested Novak, searched his apartment, and seized his phone and laptop. He spent four days in jail before making bond.Indicted for disrupting police functions, Novak was acquitted. In Novak’s subsequent suit, 42 U.S.C. 1983, the Sixth Circuit affirmed summary judgment in favor of the defendants. The officers reasonably believed they were acting within the law. The officers could reasonably believe that some of Novak’s Facebook activity was not parody, not protected, and fair grounds for probable cause. View "Novak v. City of Parma, Ohio" on Justia Law

Wilson, a member of the Board of Trustees of the Houston Community College System, brought multiple lawsuits challenging the Board’s actions. In 2016, the Board publicly reprimanded Wilson. He continued to charge the Board with violating its ethical rules and bylaws, in media outlets and in state-court actions. In 2018, the Board adopted a public resolution “censuring” Wilson and stating that his conduct was “not consistent with the best interests of the College” and “reprehensible.” The Board deemed Wilson ineligible for Board officer positions during 2018. The Fifth Circuit reversed the dismissal of Wilson’s suit under 42 U.S.C. 1983.The Supreme Court held that Wilson does not possess an actionable First Amendment claim arising from the Board’s purely verbal censure. In First Amendment cases, long-settled and established practice “is a consideration of great weight.” Elected bodies have long exercised the power to censure their members. In disagreements of this sort, the First Amendment permits “[f]ree speech on both sides and for every faction on any side.”A plaintiff pursuing a First Amendment retaliation claim must show that the government took an “adverse action” in response to his speech that “would not have been taken absent the retaliatory motive.” Any fair assessment of the materiality of the Board’s conduct must consider that elected representatives are expected to shoulder some criticism about their public service and that the only adverse action at issue is itself a form of speech from Wilson’s colleagues. The censure did not prevent Wilson from doing his job and did not deny him any privilege of office. Wilson does not allege it was defamatory. The censure does not qualify as a materially adverse action capable of deterring Wilson from exercising his own right to speak. View "Houston Community College System v. Wilson" on Justia Law

Riley’s Farm provides historical reenactments and hosts apple picking. In 2001-2017, schools within the District took field trips to Riley’s. In 2018, Riley used his personal Twitter account to comment on controversial topics. Parents complained; a local newspaper published an article about Riley and his postings. The District severed the business relationship. In a 42 U.S.C. 1983 suit alleging retaliation for protected speech, the district court granted the District defendants summary judgment.The Ninth Circuit reversed as to injunctive relief but affirmed as to damages. Riley made a prima facie case of retaliation; he engaged in expressive conduct, some of the District defendants took an adverse action that caused Riley to lose a valuable government benefit, and those defendants were motivated by Riley’s expressive conduct. There was sufficient evidence that Board members had the requisite mental state to be liable for damages. The defendants failed to establish that the District’s asserted interests in preventing disruption to their operations and curricular design because of parental complaints outweighed Riley’s free speech interests. Even assuming that the selection of a field trip venue was protected government speech, the pedagogical concerns underlying the government-speech doctrine did not apply because Riley was not speaking for the District. Nonetheless, the defendants were entitled to qualified immunity on the damages claim. There was no case directly on point that would have clearly established that the defendants’ reaction to parental complaints and media attention was unconstitutional. View "Riley’s American Heritage Farms v. Elsasser" on Justia Law

The FCC promulgated a regulation which originally authorized the installation on private property, with the owner's consent, of "over-the-air reception devices," regardless of State and local restrictions, "including zoning, land-use, or building regulation[s], or any private covenant, homeowners' association rule or similar restriction on property." The FCC later expanded coverage to include antennas that act as "hub sites" or relay service to other locations. Petitioners, expressing concern about possible health effects from increased radiofrequency exposure, argued that the proliferation of commercial-grade antennas would increase the suffering of those with radiofrequency sensitivity—violating their rights under the Americans with Disabilities Act (ADA), the Fair Housing Act (FHA), and the U.S. Constitution's protections of private property and personal autonomy. Petitioners also contend that the amendments would deny affected individuals fair notice and an opportunity to be heard.The DC Circuit first concluded that two of the petitioners' interests are impacted directly by the FCC's order and that CHD has associational standing. The court also concluded that the Commission's citation of and reliance on the Commission's Continental Airlines decision provided sufficient explanation for its authority to expand the regulation to hub-and-relay antennas carrying broadband Internet. The court rejected petitioners' contentions to the contrary that the order is unsupported by Section 303 of the Communications Act. Finally, the court rejected petitioners' contention that the order lacks a reasoned foundation because the Commission disregarded the human health consequences of its action. Rather, the court concluded that the Commission sufficiently explained that its order does not change the applicability of the Commission's radio frequency exposure requirements and that such concerns were more appropriately directed at its radiofrequency rulemaking. Furthermore, the Commission may also preempt restrictions on the placement of the new category of antennas now included in the regulation. Therefore, the court denied the petition challenging the FCC's order. View "Children's Health Defense v. Federal Communications Commission" on Justia Law

Spokane Public Library hosted a children’s event called “Drag Queen Story Hour.” Because the event proved controversial, police separated 150 protesters and 300 counterprotesters into separate zones near the library. Yaghtin arrived at the event wearing a press badge and identified himself as a member of the press. Yaghtin alleges he was assigned a police “detail” to accompany him through a crowd of counterprotesters out of concern that he was “fake press.” While walking through the counterprotest zone, Yaghtin began speaking with a counterprotester, who asked him whether he was the person that had advocated for the execution of gay people. Officer Doe interrupted the exchange, and escorted Yaghtin through the counterprotest zone. Affirming the dismissal of a suit under 42 U.S.C. 1983, the Ninth Circuit held that Doe was entitled to qualified immunity. The plaintiffs did not challenge the ordinance or permit scheme, nor the police department’s use of separate protest zones. No precedent would have alerted Doe that his enforcement would violate clearly established First Amendment law; it was not unreasonable for Doe to believe that it was lawful for him to examine the substance of Yaghtin’s speech to enforce the separate protest zone policy. The city cannot be held liable because nothing in the complaint plausibly alleged a policy, custom, or practice leading to any violation. Plaintiffs’ allegations amounted to only an “isolated or sporadic incident” that could not form the basis of liability under “Monell.” View "Saved Magazine v. Spokane Police Department’" on Justia Law

The Supreme Court held that the West Virginia Wiretapping and Electronic Surveillance Act (West Virginia Act), W. Va. Code 62-1D-1 through 16, runs afoul of the First Amendment to the federal Constitution and W. Va. Const. art. III, 7 and is unconstitutional as appleid to the extent that it allows a civil action to be maintained against an innocent third party who publishes information of public concern that was obtained by the unlawful interception of wire, oral, or electronic communication in violation of the statute but who did not participate in the unlawful interception of the communication.Petitioners, public school employees, alleged that the mother of A.P., a special education student in their classroom, violated both the West Virginia Act and its federal construct by placing a secret audio recording device in A.P.'s hair, purporting to show Petitioners physically and verbally abusing students. After Petitioners resigned, they brought this complaint alleging that Respondents, various media groups or outlets, violated the West Virginia Act by using and disclosing Petitioners' intercepted communications. The circuit court granted Respondents' motions to dismiss. The Supreme Court affirmed, holding that the circuit court did not err in dismissing the case. View "Yurish v. Sinclair Broadcast Group, Inc." on Justia Law

White, a white supremacist, is now in federal prison. His Freedom of Information Act, 5 U.S.C. 552, requests concern a conspiracy theory: that the racist movement he joined is really an elaborate government sting operation. Dissatisfied with the pace at which the FBI and Marshals Service released responsive records and their alleged failure to reveal other records, White filed suit.The court granted the agencies summary judgment and denied White’s subsequent motion seeking costs because the Marshals Service alone was delinquent in responding; the 1,500 pages held by that agency were an insubstantial piece of the litigation compared to 100,000 pages of FBI documents. The court stated that “the transparent purpose of White’s FOIA requests and lawsuit was to harass the government, not to obtain information useful to the public.” White then filed an unsuccessful motion to reconsider, arguing that the court should not render a final decision until the FBI had redacted, copied, and sent all the responsive records, which will take more than a decade. White next moved to hold the Marshals Service in contempt for telling the court in 2018 that it would soon start sending him records; by 2020 White had received nothing. The court admonished the agency but determined that no judicial order had been violated. The Seventh Circuit affirmed. The district judge “carefully parsed White’s numerous and wide-ranging arguments and explained the result." View "White v. United States Department of Justice" on Justia Law

In 1981, a Georgia federal district court concluded that Atlanta’s zoning regulations for adult businesses were constitutionally overbroad in their entirety and permanently enjoined their enforcement. Atlanta did not appeal. Cheshire operates an Atlanta adult novelty and video store, Tokyo Valentino, and sued, asserting that the definitions of “adult bookstore,” “adult motion picture theater,” “adult mini motion picture theater,” “adult cabaret,” and “adult entertainment establishment” in the current Atlanta City Code are facially overbroad in violation of the First Amendment.On remand, the district court granted Atlanta summary judgment. The Eleventh Circuit affirmed. The district court did not err in providing a narrowing construction of certain terms (the term “patron” in the definitions of “adult motion picture theater” and “adult mini-motion picture theater”) in the challenged provisions. The phrase “intended, designed, or arranged” suggests that the challenged provisions do not apply to isolated or intermittent uses of the property. Cheshire failed to show that any overbreadth in the provisions is “substantial” as required by Supreme Court precedent. The challenged provisions do not purport to ban the activities or conduct they define or describe but are part of a zoning scheme regulating where covered establishments can locate or operate. View "Cheshire Bridge Holdings, LLC, v. City of Atlanta," on Justia Law

A member of Sons of Confederate Veterans applied to participate in the Old Soldiers Day Parade, a pro-American veterans parade funded and organized by the Alpharetta, Georgia, and was informed that the organization could participate if it agreed not to fly the Confederate battle flag.In a suit under 42 U.S.C. 1983, alleging that the City violated the First and Fourteenth Amendments, the district court held that the Parade constituted government speech and entered summary judgment against the Sons. The Eleventh Circuit affirmed. Governments “are not obliged under the First and Fourteenth Amendments to permit the presence of a rebellious army’s battle flag in the pro-veterans parades that they fund and organize.” In 2015, in Walker v. Texas Division, Sons of Confederate Veterans, the Supreme Court clarified that, “[w]hen [the] government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” View "Leake v. Drinkard" on Justia Law