Justia Communications Law Opinion Summaries

The Supreme Court reversed the interlocutory order of the district court denying Cathy McKitrick's motion to dismiss Kerry Gibson's petition for judicial review of the decision of the Ogden City Records Review Board granting McKitrick's request for government records, holding that a statutory claimant who lacks statutory standing may not proceed on the basis of traditional or alternative standing.McKitrick, a freelance journalist, sought records related to an investigation into the alleged official misconduct by Gibson, a former Weber County Commissioner. After the Review Board granted the records request Gibson petitioned for judicial review. McKitrick filed a motion to dismiss, arguing that Gibson lacked standing under the Utah Governmental Records Access and Management Act to seek judicial review of the appeals board's access decision. In response, Gibson argued that his petition should proceed because he met the tests for both traditional and public interest standing. The district court denied the motion to dismiss. The Supreme Court reversed, holding that a statutory claimant must have statutory standing, and the presence of traditional or alternative standing will not cure a statutory standing deficiency. View "McKitrick v. Gibson" on Justia Law

Herring launched the conservative One American News Network (OAN) in 2013. While employed by OAN, Rouz also wrote articles as a freelancer for Sputnik, a Russian state-financed news organization. Herring alleges that Rouz’s work for Sputnik “had no relation to his work for OAN.” In 2019, The Daily Beast published an article entitled “Trump’s New Favorite Channel Employs KremlinPaid Journalist,” asserting that “Kremlin propaganda sometimes sneaks into” Rouz’s OAN segments. On the day the article was published, Maddow, host of The Rachel Maddow Show on MSNBC, ran a segment entitled “Staffer on Trump-Favored Network Is on Propaganda Kremlin Payroll.” The segment ran three and a half minutes.Herring sued Maddow and others for defamation. Herring did not sue The Daily Beast or its reporter but focused on Maddow’s comment that OAN “really literally is paid Russian propaganda.” Maddow moved to strike the complaint, citing California’s anti-SLAPP (strategic lawsuit against public participation) law. The district court granted the motion. The Ninth Circuit affirmed. Maddow’s “statement is an opinion that cannot serve as the basis for a defamation claim” and Herring failed to show “a probability of succeeding on its defamation claims.” The challenged statement was an obvious exaggeration, cushioned within an undisputed news story; it could not reasonably be understood to imply an assertion of objective fact. View "Herring Networks, Inc. v, Maddow" on Justia Law

The Supreme Court affirmed the order of the superior court court granting summary judgment in favor of Defendants and concluding that North Carolina Railroad Company was not an agency or subdivision of the North Carolina government for purposes of the Public Records Act (the Act), N.C. Gen. Stat. 132-1, holding that there was no error.Plaintiff Southern Environmental Law Center, acting in reliance upon the Act, submitted a request to the president of the Railroad seeking to inspect certain records. The Railroad declined to provide the requested records, asserting that it was not subject to the Act. Plaintiff then brought this action requesting that the court enter an order declaring that the Railroad was an agency of the state for purposes of the Act. The trial court granted summary judgment in favor of Defendants. The Supreme Court affirmed, holding that the trial court did not err in granting summary judgment in favor of Defendants. View "Southern Environmental Law Center v. N.C. Railroad Co." on Justia Law

Loyhayem filed suit under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227(b)(1)(A)–(B), which prohibits robocalls to cellphones except for emergency purposes or with the prior express consent of the called party. Loyhayem received a call to his cell phone that left a pre-recorded voicemail message: Hi, this is Don with Fraser Financial... I recently saw your industry experience and I wanted to let you know that we’re looking to partner with select advisors ... I thought you might be a fit.” Loyhayem characterized this call as a “job recruitment call,” and alleged that it was made using an automated telephone dialing system and an artificial or pre-recorded voice and that he did not expressly consent to calls from Fraser.The district court dismissed Loyhayem’s suit, holding that the TCPA and the implementing regulation do not prohibit job-recruitment robocalls. The court read the Act as prohibiting robocalls to cell phones only when the calls include an “advertisement” or constitute “telemarketing,” as those terms have been defined by the FCC. The Ninth Circuit reversed. The statute prohibits in plain terms “any call,” regardless of content, that is made to a cell phone using an automatic telephone dialing system or an artificial or pre-recorded voice. Loyhayem adequately alleged that the call he received was not made for emergency purposes and that he did not expressly consent to it. View "Loyhayem v. Fraser Financial & Insurance Services, Inc." on Justia Law

Bilek received unauthorized robocalls concerning health insurance that allegedly violated the Telephone Consumer Protection Act and the Illinois Automatic Telephone Dialing Act (47 U.S.C. 227; 815 ILCS 305/30(a)(b)). Bilek sued on a vicarious liability theory, claiming that Federal contracted with Innovations to sell its insurance; Innovations hired lead generators to effectuate telemarketing; and the lead generators made the unauthorized robocalls that form the basis of Bilek’s claims. Bilek cited three agency theories: actual authority, apparent authority, and ratification.The Seventh Circuit reversed the dismissal of Bilek’s complaint. Expressing no view on whether Bilek will ultimately succeed in proving an agency relationship between the lead generators and either Federal or Innovations, the court concluded that Bilek alleged enough at the pleading stage for his complaint to move forward. Bilek alleges more than a barebones contractual relationship, and did enough to plead that the lead generators acted with Federal’s actual authority. Bilek alleged that Federal authorized the lead generators, through Innovations, to use its approved scripts, tradename, and proprietary information to solicit and advertise its insurance; Bilek received a robocall, and after pressing 1, he spoke to a lead generator who used this proprietary information to quote Federal’s insurance. View "Bilek v. Federal Insurance Co." on Justia Law

The First Circuit affirmed the judgment of the district court denying the Internet and Television Association's (NCTA) request for declaratory and permanent injunctive relief from certain provisions of a Maine state law, holding that the district court did not err.At issue was the Maine state law, "An Act to Ensure Nondiscriminatory Treatment of Public, Educational and Government Access Channels by Cable System Operators." The provisions at issue concerned both the way that cable system operators must treat channels qualifying as local public, educational, and government access channels and the obligations of those operators to make cable service available in rural areas. In this action, NCTA argued that federal law facially preempted the provisions of the Maine Act at issue. The First Circuit affirmed, holding that federal law did not facially preempt the provisions of the Maine Act. View "Internet and Television Ass'n v. Frey" on Justia Law

The Ninth Circuit granted in part and denied in part a petition for review challenging the FCC's order finding that a competitive local exchange carrier's tariffed rate was void ab initio because it violated the FCC's benchmarking rule by exceeding the established step-down rates.The panel held that the FCC did not err in concluding that Wide Voice's tariff violated the benchmarking rule by deviating from the established stepdown rates. In this case, the FCC's conclusion that Wide Voice's tariff was unlawful because it violated the benchmarking rule was neither arbitrary nor capricious However, the panel held that the FCC's determination that the tariff was void ab initio after being "deemed lawful" in accordance with the governing statute was arbitrary and capricious. The panel followed the lead of the D.C. Circuit in concluding that the FCC impermissibly disregarded the "deemed lawful" status of Wide Voice's tariffs in contravention of Congress' unambiguously expressed intent to provide a mechanism to achieve that "deemed lawful" status. Furthermore, the FCC elided its own prior ruling, as well as prior court rulings precluding retrospective remedies for "deemed lawful" rates later determined to be unreasonable. View "Wide Voice, LLC v. Federal Communications Commission" on Justia Law

Klayman founded Judicial Watch in 1994 and served as its Chairman and General Counsel until 2003. Klayman claims he left voluntarily. Judicial Watch (JW) claims it forced Klayman to resign based on misconduct. During negotiations over Klayman’s departure, JW prepared its newsletter, which was mailed to donors with a letter signed by Klayman as “Chairman and General Counsel.” While the newsletter was at the printer, the parties executed a severance agreement. Klayman resigned; the parties were prohibited from disparaging each other. Klayman was prohibited from access to donor lists and agreed to pay outstanding personal expenses. JW paid Klayman $600,000. Klayman ran to represent Florida in the U.S. Senate. His campaign used the vendor that JW used for its mailings and use the names of JW’s donors for campaign solicitations. Klayman lost the election, then launched “Saving Judicial Watch,” with a fundraising effort directed at JW donors using names obtained for his Senate run. In promotional materials, Klayman asserted that he resigned to run for Senate, that the JW leadership team had mismanaged and the organization, and that Klayman should be reinstated.Klayman filed a complaint against JW, asserting violations of the Lanham Act, 15 U.S.C. 1125(a)(1), by publishing a false endorsement when it sent the newsletter identifying him as “Chairman and General Counsel” after he had left JW. Klayman also alleged that JW breached the non-disparagement agreement by preventing him from making fair comments about JW and that JW defamed him. During the 15 years of ensuing litigation, Klayman lost several claims at summary judgment and lost the remaining claims at trial. The jury awarded JW $2.3 million. The D.C. Circuit rejected all of Klayman’s claims on appeal. View "Klayman v. Judicial Watch, Inc." on Justia Law

The Beef Promotion and Research Act of 1985 imposes a $1 assessment, or “checkoff,” on each head of cattle sold in the U.S. to fund beef consumption promotional activities. The Secretary of Agriculture oversees the program. The Montana Beef Council and other qualified state beef councils (QSBCs), receive a portion of the checkoff assessments to fund promotional activities and may direct a portion of these funds to third parties for the production of advertisements and other promotional materials. R-CALF's members include cattle producers who object to their QSBCs’ advertising campaigns. In 2016, the Secretary entered into memoranda of understanding (MOUs) with QSBCs which granted the Secretary preapproval authority over promotions and allowed the Secretary to decertify noncompliant QSBCs, terminating their access to checkoff funds. The Secretary must preapprove all contracts to third parties and any resulting plans. QSBCs can make noncontractual transfers of checkoff funds to third parties for promotional materials which do not need to be pre-approved. Plaintiffs contend that the distribution of funds under these arrangements is an unconstitutional compelled subsidy of private speech.The Ninth Circuit affirmed summary judgment in favor of the federal defendants after holding that R-CALF had associational standing and direct standing to sue QSBCs. The speech generated by the third parties for promotional materials was government speech, exempt from First Amendment scrutiny. Given the breadth of the Secretary's authority, third-party speech not subject to pre-approval was effectively controlled by the government. View "Ranchers-Cattlemen Action Legal Fund United Stockgrowers of America v. Vilsack" on Justia Law

Inna Khodorkovskaya sued the director and the playwright of Kleptocracy, a play that ran for a month in 2019 at the Arena Stage in Washington, D.C. She alleged false light invasion of privacy and intentional infliction of emotional distress. Inna, who was a character in Kleptocracy, alleges that the play falsely depicted her as a prostitute and murderer. Inna’s husband was persecuted because of his opposition to Vladimir Putin; the two obtained asylum in the U.K.The district court dismissed her complaint, reasoning that Kleptocracy is a fictional play, even if inspired by historical events, and that the play employed various dramatic devices underscoring its fictional character so that no reasonable audience member would understand the play to communicate that the real-life Inna was a prostitute or murderer. The D.C. Circuit affirmed. “Kleptocracy is not journalism; it is theater. It is, in particular, a theatrical production for a live audience, a genre in which drama and dramatic license are generally the coin of the realm.” The play’s use of a fictional and metaphorical tiger, of Vladimir Putin reciting poetry, and of a ghost reinforce to the reasonable audience member that the play’s contents cannot be taken literally. View "Khodorkovskaya v. Gay" on Justia Law