Justia Communications Law Opinion Summaries

Adams Outdoor Advertising sought a permit to install a billboard near an interchange on U.S. Route 22 in Hanover Township, Pennsylvania. The Pennsylvania Department of Transportation denied the permit because Pennsylvania law prohibits “off-premise” billboards within 500 feet of a highway interchange. Adams challenged the provision as too vague and under the First Amendment because there is no time limit for PennDOT’s decisions on applications. The district court ruled in Adams’ favor on the time-limit claim and entered an injunction barring the enforcement of the permit requirement until PennDOT establishes reasonable time limits on its permit decisions. The court dismissed Adams’ vagueness challenge and First Amendment scrutiny challenge. The Third Circuit agreed that the permit requirement violates the First Amendment because it lacks a reasonable time limit for permit determinations and that the Interchange Prohibition communicates clearly what it prohibits and is not vague. The court reversed in part. While the Interchange Prohibition is not subject to strict scrutiny, the record is insufficient to establish the required reasoning for the prohibition. View "Adams Outdoor Advertising Ltd v. Pennsylvania Department of Transportation" on Justia Law

Ohio Revised Code 4123.88 addresses how workers' compensation claimant information is handled and protected by the Ohio Bureau of Workers’ Compensation and contains the solicitation ban at issue: “No person shall directly or indirectly solicit authority” (1) to “represent the claimant or employer in respect of” a worker’s compensation “claim or appeal,” or (2) “to take charge of” any such claim or appeal. The district court rejected Bevan's challenge on summary judgment. The Sixth Circuit reversed, concluding that the state has prohibited all solicitation, whether oral or written, by any person to represent a party with respect to an Ohio workers’ compensation claim or appeal and that such a prophylactic ban violates the First Amendment under the Supreme Court’s 1988 "Shapero" decision. The court rejected an argument that the constitutionally questionable language is part of a larger statutory scheme that Bevan allegedly violated by obtaining claimant information from the Bureau in an unlawful manner. Whether Bevan violated other statutory provisions governing disclosure of claimant information is not relevant to whether the solicitation ban itself is constitutional. The solicitation ban makes no distinction as to how the person doing the soliciting learned of the claimant’s information: it bans all solicitation regardless of where or how that information was obtained. The prohibition is repugnant to the First Amendment's free speech clause. View "Bevan & Associates, LPA v. Yost" on Justia Law

This case stemmed from the adoption of "Baby Doe" by his adoptive mother, K.G.S., which was contested by Baby Doe's birth mother, K.R. ("the birth mother"). Details of that contested adoption were reported by the Huffington Post, a Web-based media outlet, and were also disseminated through a Facebook social-media page devoted to having Baby Doe returned to the birth mother. K.G.S. filed an action in Alabama circuit court seeking, among other things, an injunction against Facebook, Inc., and certain individuals to prohibit the dissemination of information about the contested adoption of Baby Doe. These appeals followed the entry of a preliminary injunction granting K.G.S. the relief she sought. In appeal no. 1170244, the Alabama Supreme Court concluded the preliminary injunction entered against Facebook was void for lack of personal jurisdiction; therefore, Facebook's appeal of the preliminary injunction was dismissed and the trial court was instructed to dismiss K.G.S.'s claims against Facebook. In appeal no. 1170294, the Supreme Court reversed the order entering the preliminary injunction against defendant Renee Gelin was reversed for lack of notice, and the case was remanded with instructions to the trial court to dissolve the preliminary injunction issued against Gelin. In appeal no. 1170336, the Supreme Court reversed the preliminary injunction against Kim McLeod, and remanded this case with instructions to the trial court to dissolve the preliminary injunction issued against McLeod. View "Facebook, Inc. v. K.G.S." on Justia Law

Brunetti sought federal registration of the trademark FUCT. The Patent and Trademark Office denied his application under a Lanham Act provision that prohibits registration of trademarks that consist of or comprise "immoral[ ] or scandalous matter,” 15 U.S.C. 1052(a).The Supreme Court affirmed the Federal Circuit in holding that the provision violates the First Amendment. The Court noted that it previously invalidated the Act’s ban on registering marks that “disparage” any “person[ ], living or dead.” The “immoral or scandalous” bar similarly discriminates on the basis of viewpoint. Expressive material is “immoral” when it is “inconsistent with rectitude, purity, or good morals”; “wicked”; or “vicious”; the Act permits registration of marks that champion society’s sense of rectitude and morality, but not marks that denigrate those concepts. Material is “scandalous” when it “giv[es] offense to the conscience or moral feelings”; “excite[s] reprobation”; or “call[s] out condemnation”; the Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety. The statute, on its face, distinguishes between ideas aligned with conventional moral standards and those hostile to them.The Court rejected an argument that the statute is susceptible of a limiting construction. The “immoral or scandalous” bar does not draw the line at lewd, sexually explicit, or profane marks. Nor does it refer only to marks whose “mode of expression,” independent of viewpoint, is particularly offensive. To cut the statute off where the government urges would not interpret the statute Congress enacted, but fashion a new one. View "Iancu v. Brunetti" on Justia Law

Six Flags, a Vallejo amusement park, features rides and animal attractions on 138 acres, including a ticketed interior portion with the entertainment activities and an exterior portion with an admissions area connected by walkways and streets to a paid parking lot. The property falls within the city’s “public and quasi-public facilities zoning district.” For many years, the amusement park was municipally owned but privately operated. In 2006, a federal district court recognized the constitutional right of an individual to protest at the park’s front entrance, which is public fora under California’s free speech clause. The following year, Park Management exercised its option and acquired the park from the city for $53.9 million; the city committed to retaining the park’s zoning designation. Management agreed to pay the city a percentage of annual admissions revenue. The city’s redevelopment agency agreed to finance the construction of a new parking structure on publicly owned fairgrounds for lease to Management. In 2014, Management banned all expressive activity at the park, including protests. Weeks later, people protested against the park’s treatment of animals at the front entrance area and handed out leaflets in the parking lot. The police and the district attorney declined to intervene without a court order. Management filed suit, alleging private trespass. The trial court granted Management summary judgment. The court of appeal reversed. While a long-time protestor failed to prove as a matter of law that he has acquired a common law prescriptive right to protest at the park, the exterior, unticketed areas of the amusement park are a public forum for expressive activity under California Constitution article I, section 2. View "Park Management Corp. v. In Defense of Animals" on Justia Law

New York requires cable operators to set aside channels for public access. Those channels are operated by the cable operator unless the local government chooses to operate the channels or designates a private entity as the operator. New York City designated a private nonprofit corporation, MNN, to operate public access channels on Time Warner’s Manhattan cable system. Respondents produced a film critical of MNN. MNN televised the film. MNN later suspended Respondents from all MNN services and facilities. They sued, claiming that MNN violated their First Amendment free-speech rights. The Second Circuit partially reversed the dismissal of the suit, concluding that MNN was subject to First Amendment constraints.The Supreme Court reversed in part and remanded. MNN is not a state actor subject to the First Amendment. A private entity may qualify as a state actor when the entity exercises “powers traditionally exclusively reserved to the State” but “very few” functions fall into that category. Operation of public access channels on a cable system has not traditionally and exclusively been performed by government. Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed and does not automatically transform a private entity into a state actor. The City’s designation of MNN as the operator is analogous to a government license, a government contract, or a government-granted monopoly, none of which converts a private entity into a state actor unless the private entity is performing a traditional, exclusive public function. Extensive regulation does not automatically convert a private entity's action into that of the state. The City does not own, lease, or possess any property interest in the public access channels. View "Manhattan Community Access Corp. v. Halleck" on Justia Law

The Ninth Circuit reversed the district court's dismissal of the complaint for failure to state a claim under the Telephone Consumer Protection Act. Plaintiff alleged that Facebook used automated telephone dialing systems (ATDS) to alert users, as a security precaution, when their account was accessed from an unrecognized device or browser. However, plaintiff was not a Facebook customer and his repeated attempts to terminate the alerts were unsuccessful.The panel held that plaintiff's allegations under the Act were sufficient to withstand Facebook's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). In this case, the messages plaintiff received were automated, unsolicited, and unwanted.As to the constitutional issue, the panel joined the Fourth Circuit and held that a 2015 amendment to the Act, excepting calls "made solely to collect a debt owed to or guaranteed by the United States," was content-based and incompatible with the First Amendment. The panel severed the newly appended "debt-collection exception" as an unconstitutional restriction on speech. Therefore, the panel remanded for further proceedings. View "Duguid v. Facebook, Inc." on Justia Law

The Board of Forensic Document Examiners (BFDE), a nonprofit organization, administers a certification program for forensic document examiners. The Board has certified about a dozen examiners. Vastrick, a forensic document examiner certified by another, much larger organization, the American Board of Forensic Document Examiners, published an article, Forensic Handwriting Comparison Examination in the Courtroom, in The Judges’ Journal, a peer-reviewed scholarly journal published by the ABA. Vastrick urged judges to look for experts certified by the American Board and warned judges to “be wary of other certifying bodies.” The article did not mention BFDE by name. BFDE submitted a rebuttal, but frustrated with the ABA’s suggested edits, BFDE filed suit, claiming defamation per se and invasion of privacy on behalf of its members. BFDE also asserted civil conspiracy, false advertising under the Lanham Act. The Seventh Circuit affirmed the dismissal of the suit, ruling that the article contained only constitutionally-protected, non-actionable opinion. The Journal warned readers that “[a]rticles represent the opinions of the authors alone” and “provide opposing views” for readers to consider. Vastrick highlighted the subjective nature of his article, presenting his views as suggestions, not facts. Vastrick’s assertion that the American Board “is the only certification board recognized by the broader forensic science community, law enforcement, and courts,” reflects the expression of a viewpoint and is so broad as to lack objective, verifiable meaning. View "Board of Forensic Document Examiners, Inc. v. American Bar Association" on Justia Law

Plaintiffs appealed the district court's grant of summary judgment to the FCC and the Government, in an action alleging that part of the Telephone Consumer Protection Act of 1991 (TCPA) contravenes the Free Speech Clause of the First Amendment. In relevant part, the Act prohibits calls to cell phones by use of an automated dialing system or an artificial or prerecorded voice, subject to three statutory exemptions. Specifically, plaintiffs alleged that one of the statutory exemptions to the automated call ban — created by a 2015 TCPA amendment — is facially unconstitutional under the Free Speech Clause.Although the Fourth Circuit agreed with the district court that strict scrutiny review applied in this case, it held that the debt collection exemption fails to satisfy strict scrutiny, constitutes an unconstitutional content-based restriction on speech, and therefore violates the Free Speech Clause. The court concluded that the flawed exemption could be severed from the automatic call ban. Accordingly, the court vacated and remanded. View "American Association of Political Consultants, Inc. v. FCC" on Justia Law

In 2018, the Sixth Circuit reversed the district court’s order granting a preliminary injunction that had enjoined Lexington-Fayette Urban County Government from enforcing Ordinance 25-2017, which restricts the delivery of “unsolicited written materials” to six enumerated locations and provides for civil penalties for violations. On remand, further proceedings were taken in the district court. The Sixth Circuit affirmed the district court in concluding that Ordinance 25-2017 constitutes a valid time, place, and manner regulation of speech. View "Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government" on Justia Law