Justia Communications Law Opinion Summaries

Gorss operated a Super 8 Motel as a franchisee of Wyndham. Gorss agreed to furnish the facility in accordance with Wyndham’s standards and to purchase supplies and equipment from approved vendors. Brigadoon sells fitness equipment and is an approved vendor for Wyndham franchisees. Wyndham periodically provided contact information for its franchisees, including fax numbers, to Brigadoon. Gorss also attended trade shows and personally provided contact information to Wyndham-approved suppliers. Gorss received a fax from Brigadoon advertising its fitness equipment. The fax was sent to more than 10,000 recipients. Brigadoon formulated the list of recipients from a variety of sources.Gorss filed a purported class action under the Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(c), seeking statutory penalties. The district court declined to certify a class, finding that common issues did not predominate. The Seventh Circuit affirmed, rejecting Gorss’s argument that the court should have required Brigadoon to show with specific evidence that a significant percentage of the class is subject to the “prior permission” defense. Gorss offered no generalized class-wide manner to resolve the permission question. Brigadoon’s claim of permission was not speculative, vague, or unsupported; it was based on a multitude of contracts, relationships, memberships, and personal contacts. View "Gorss Motels, Inc. v. Brigadoon Fitness Inc." 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

Fisher is the personal representative of his mother’s estate and a co-trustee of her trusts with his siblings, Perron and Peter. Perron recorded telephone discussions of estate matters without informing her siblings that she was recording. Perron sued Fisher and attached transcripts of one call to pleadings; the probate court struck the transcript from the record, prohibited its further use, and held Perron liable for attorney’s fees and costs.Fisher sued, alleging that Perron violated the Federal Wiretap Act, 18 U.S.C. 2510– 23, which prohibits a call participant from recording the call “for the purpose of committing any criminal or tortious act” or disclosing or using any such illegally intercepted oral communication; violated Michigan’s eavesdropping law, which makes the use of an electronic “device to eavesdrop upon [a] conversation without the consent of all parties thereto” a felony; and committed the tort of public disclosure of private facts.The Sixth Circuit affirmed the dismissal of the suit. A participant does not violate Michigan’s eavesdropping statute by recording a conversation without the consent of other participants. The complaint contains no facts to support an inference that a reasonable person would find the facts disclosed in the call “highly offensive” to support a claim of public disclosure of private facts. Because Fisher did not establish either the tort or the state law violation, he did not establish “the purpose of committing any criminal or tortious act” under federal law. View "Fisher v. Perron" 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

In Section 9(e) of a settlement agreement between Cox Communications and Sprint Corporation (T-Mobile U.S., Inc.'s predecessor-in-interest, Cox agreed that, before it offered wireless mobile services to its customers, it would enter into a “definitive” exclusive provider agreement with Sprint “on terms to be mutually agreed upon between the parties for an initial period of 36 months[.]” Cox and Sprint never entered into such a partnership. After T-Mobile finalized a purchase of Sprint in April 2020, the combined entity bid for Cox’s business, but Cox decided to partner with Verizon. After hearing that it would not be Cox’s exclusive partner, T-Mobile accused Cox of breaching the Settlement Agreement. Cox sued T-Mobile in Delaware's Court of Chancery, seeking a declaration that Section 9(e) was either an unenforceable “agreement to agree” or a Type II preliminary agreement requiring Cox and T-Mobile to negotiate in good faith. According to Cox, it was free to partner with Verizon because these good-faith negotiations failed. Shortly before trial, Cox also suggested that whatever Section 9(e) means, T-Mobile could not enforce it because the Settlement Agreement was between Cox and Sprint, and Cox never consented to an assignment. T-Mobile filed a compulsory counterclaim for breach of contract. In support of this claim, T-Mobile offered that Section 9(e) meant that, although Cox was not obligated to provide wireless mobile services, if it wished to do so, it had to first enter into an exclusive provider agreement with T-Mobile as the conceded successor-in-interest to Sprint. For T-Mobile, the failure of the parties’ attempt to negotiate the definitive terms of the agreement meant that Cox could not enter the wireless mobile market at all. The Court of Chancery agreed with T-Mobile and permanently enjoined Cox from “partnering with any mobile network operator other than T-Mobile to provide Wireless Mobile Service before entering into an agreement with T-Mobile. The Delaware Supreme Court disagreed with the Court of Chancery, finding the Settlement Agreement was a Type II preliminary agreement that obligates the parties to negotiate open items in good faith. The judgment was reversed, the injunction vacated, and the matter remanded so that the Court of Chancery could determine whether Cox and T-Mobile discharged their obligations to negotiate in good faith. View "Cox Communications, Inc. v. T-Mobile US, Inc." on Justia Law

The First Circuit reversed the order of the district court ordering the release of sealed archival records of certain grand jury proceedings and its judgment in favor of historian and Petitioner Jill Lepore, holding that the federal court did not have the authority to order the release of the grand jury records.As research on a book she was writing, Petitioner filed a Freedom of Information Act request seeking the release of sealed archival records of grand jury proceedings from 1971 that were held to consider possible criminal charges arising out of the publication of excerpts from the "Pentagon Papers," a government study of the Vietnam War. The district court ultimately ordered the records released. The First Circuit reversed, holding that the court erred in holding that it had the authority to order the release of grand jury records based upon its finding that historical interest in the records outweighed any countervailing considerations. View "Lepore v. United States" on Justia Law

The Trademark Trial and Appeal Board affirmed an examiner’s refusal to register the trademark “TRUMP TOO SMALL” for use on T-shirts. According to Elster’s registration request, the phrase he sought to trademark invokes a memorable exchange between then-candidate Trump and Senator Marco Rubio from a 2016 presidential primary debate, and aims to “convey[] that some features” of Trump’s “policies are diminutive.” The Board’s decision was based on the Lanham Act, 15 U.S.C. 1052(c), and the Board’s finding that the mark included the surname of a living individual without his consent.The Federal Circuit reversed. Applying section 2(c) to bar registration of Elster’s mark unconstitutionally restricts free speech in violation of the First Amendment. Section 2(c), prohibits registration of a trademark that [c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow.” As applied in this case, section 2(c) involves content-based discrimination that is not justified by either a compelling or substantial government interest. View "In Re Elster" 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

The Supreme Court affirmed the orders of the district court denying the motion for judgment on the pleadings filed by the Associated Press and other news reporting outlets (collectively, the AP) and granting a motion to dismiss filed by Barry Usher, holding that the district court did not err.During the state's biennial legislative session in 2021, Usher, who was the Chair of the Judiciary Committee of the Montana House of Representatives, and other Republican members of the Committee met privately to discuss pending legislation. Because Usher denied the AP access to the gathering, the AP brought this lawsuit, seeking a declaratory judgment that this denial of access was a constitutional violation. The district court granted Usher's motion to dismiss, concluding that the gathering was controlled by the open meeting statute, Mont. Code Ann. 2-3-202, and that applying the statute in this case did not violate the AP's Mont. Const. art. II, 9 right to access a gathering of Judiciary Committee members. The Supreme Court affirmed, holding that the district court did not err in applying the statutory definition of a "meeting" to the AP's constitutional right to access a gathering of Judiciary Committee members. View "Associated Press v. Usher" on Justia Law

The Supreme Court granted some, but not all, of Relator's requested relief in his petition for a writ of mandamus ordering Donna Crawford, an inspector with the Trumbull Correctional Institution's office of institutional services, to produce public records that Relator had requested, holding that Relator was entitled to some of his requested relief.Relator, an inmate, sent public-records requests to Crawford, the prison's custodial of inmate-grievance records. Crawford sent some, but not all, of the requested documents. Relator then brought this action seeking a writ of mandamus and an award of statutory damages under Ohio Rev. Code 149.43(C)(2). The Supreme Court partially granted relief and awarded Relator $1,000 in statutory damages for Crawford's failure to respond fully to one request, holding that Relator met his burden to plead and prove facts showing that he requested a public record and that Crawford did not make the record available. View "State ex rel. Ware v. Crawford" on Justia Law