Justia Communications Law Opinion Summaries

The Architect of the Capitol removed high school student David Pulphus’ painting from the exhibition of the 2016 winners of the Congressional Art Competition. The painting was initially described as “a colorful landscape of symbolic characters representing social injustice, the tragic events in Ferguson, Missouri, and the lingering elements of inequality in modern American society.” It was removed after protests by police unions and a FOX news personality, based on a newspaper story that described it as “depicting police officers as pigs with guns terrorizing a black neighborhood.” After unsuccessfully asking that the House Office Building Commission overrule the removal decision, Pulphus and Missouri Congressman Clay unsuccessfully sought a preliminary injunction, alleging violations of their First Amendment rights. The D.C. Circuit dismissed an appeal as moot; the 2016 Congressional Art Competition is over and no other concrete, redressable injury is alleged that was caused by the Architect’s removal decision. View "Pulphus v. Ayers" on Justia Law

In October 2014, Kentucky Educational Television (KET) hosted a debate between the candidates for one of Kentucky’s seats in the U.S. Senate. KET limited the debate to candidates who qualified for the ballot, had collected at least $100,000 in campaign contributions, and had an independent poll indicating that at least one in 10 Kentuckians planned to vote for them. The criteria excluded Patterson, the Libertarian Party candidate. The district court rejected a suit under 42 U.S.C. 1983 by Patterson and the Party, noting that, with relatively few limits, KET could invite to its debates whomever it wanted. KET was not required to create—let alone publish—any criteria at all. KET restricted who could appear in a televised debate, not on the ballot. The debate criteria had nothing to do with a candidate’s views; rather, they measured whether voters had shown an objective interest in hearing the candidate. View "Libertarian National Committee, Inc. v. Holiday" on Justia Law

The 1993 Lucasville Prison Riot at the Southern Ohio Correctional Facility began when prisoners overpowered a guard and took his keys. Rioting prisoners ultimately took a dozen guards hostage and gained complete control of the prison’s L-block. The riot continued for 11 days; one guard and nine prisoners were murdered. Many were injured. Tens of millions of dollars’ worth of damage was done to the prison facility. Four prisoners were sentenced to death for their involvement in the riot and are classified as restricted population inmates, who “pose a direct threat to the safety of persons, including themselves, or an elevated, clear[,] and ongoing threat to the safe and secure operations of the facility. The Media Plaintiffs are professional journalists who unsuccessfully sought in-person, recorded interviews with the Prisoner Plaintiffs for the twentieth anniversary of the riot. The Prisoners and Media Plaintiffs filed suit under 42 U.S.C. 1983, alleging that the interview denials violated the First and Fourteenth Amendments because they were based on the interviews’ anticipated content. The Sixth Circuit affirmed the rejection of their claims after considering the “Turner factors” to determine that the prison regulation is reasonably related to legitimate penological interests and therefore constitutional. There is a rational connection between a policy prohibiting face-to-face interviews with Lucasville participants and the legitimate, neutral penological interest of prison security. The impact of accommodation of the right and the availability of ready alternatives also support the restrictions’ constitutionality. View "Hanrahan v. Mohr" on Justia Law

Thomas was arrested on charges that she “knowingly attempted to provide material support . . . to a designated foreign terrorist organization,” 18 U.S.C. 2339B. Thomas unsuccessfully moved for a bill of particulars and to compel notice and discovery of surveillance. Thomas pled guilty. Access to several documents on the docket was restricted. Philly Declaration moved to intervene and obtain access to all records on the docket, transcripts of Thomas’s plea hearing and her ex parte presentation to the court regarding the motions, and search warrant materials. The prosecution agreed that certain records should be largely unsealed but maintained that the “Plea Document” that was docketed with the publicly-filed guilty plea memorandum should remain under seal for reasons detailed in a sealed addendum and objected to unsealing a “Grand Jury exhibit” attached to Thomas’s reply brief in support of her motion for a bill of particulars and to unredacting quotes and citations that appeared in the Reply Brief itself. The district court ruled in favor of the government. The Third Circuit affirmed as to the Plea Document, vacated with respect to the Reply Brief and Exhibit, and remanded. While a presumptive First Amendment right of access attaches to plea hearings and related documents, the district court properly concluded that the compelling government interests of national security would be substantially impaired by permitting full access to this plea document. The proposed redactions are properly first considered by the district court. View "United States v. Thomas" on Justia Law

Pennsylvania charged Walker with forgery and computer crimes, joined with prior charges against Walker’s husband and his trucking company. Senior deputy attorney general Coffey was assigned to the case. Zimmerer was the lead investigator. They sought to obtain Walker’s work emails from her employer, Penn State, which responded, “We just need something formal, a subpoena.” Coffey and Zimmerer obtained a blank subpoena form, which they filled out in part. The subpoena is blank as to the date, time, and place of production and the party on behalf of whom testimony is required, and was, on its face, unenforceable. Zimmerer presented the unenforceable subpoena to Penn State's Assistant General Counsel. Penn State employees searched for and delivered the requested emails. The charges against Walker were subsequently dismissed with prejudice. Walker filed a 42 U.S.C. 1983 action against Zimmerer and Coffey. The district court dismissed, agreeing that Zimmerer and Coffey were entitled to qualified immunity because Walker could not show a clearly established right to privacy in the content of her work emails. The Third Circuit affirmed that dismissal but vacated the denial of Walker’s motion for leave to file a second amended complaint, asserting claims under the Stored Communications Act. The emails were transmitted via Walker’s work email address, through an email system controlled by Penn State. Walker did not enjoy any reasonable expectation of privacy vis-à-vis Penn State, which could independently consent to a search of Walker’s work emails. View "Walker v. Coffey" on Justia Law

During a campaign rally at Louisville’s Kentucky International Convention Center, then-candidate Trump spoke for 35 minutes. Plaintiffs attended the rally with the intention of peacefully protesting. Protesters’ actions during Trump’s video-recorded address precipitated directions from Trump on five different occasions to “get ’em out of here.” Members of the audience assaulted, pushed and shoved plaintiffs. Plaintiff Brousseau was punched in the stomach. Defendants Heimbach and Bamberger participated in the assaults. Plaintiffs sued Trump, the campaign, Heimbach, Bamberger, and an unknown woman who punched Brousseau, for battery, assault, incitement to riot, negligence, gross negligence and recklessness. The district court dismissed claims against the Trump defendants alleging they were vicariously liable for the actions of Heimbach, Bamberger and the unknown woman, and dismissed a negligent-speech theory as “incompatible with the First Amendment” but refused to dismiss the incitement-to-riot claims. On interlocutory appeal, the Sixth Circuit found that the claim should be dismissed. Plaintiffs have not stated a valid claim under Kentucky law, given the elements of “incitement to riot.” Trump’s speech enjoys First Amendment protection because he did not specifically advocate imminent lawless action. Trump’s “get ’em out of here” statement, closely followed by, “Don’t hurt ’em,” cannot be interpreted as advocating a riot or the use of any violence. View "Nwanguma v. Trump" on Justia Law

In 2013, while Koger was serving a 300-day sentence in the Cook County Jail, Lyons sent him at least 10 books, plus magazines and newspapers. More than 30 books were seized from Koger’s cell for violation of Jail policy. In a suit under 42 U.S.C. 1983, Lyons and Koger claimed that limiting inmates to three pieces of reading material violated the First Amendment. The district court rejected the suit. The Seventh Circuit affirmed with respect to Lyons, who lacked standing because Koger received everything she sent, but vacated as to Koger. The court noted that Koger challenged the policy, rather than the particular seizure, and that the policy provides for no pre-deprivation process. View "Lyons v. Dart" on Justia Law

The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) regulates pro-life centers that offer pregnancy-related services. Licensed clinics must notify women that California provides free or low-cost services, including abortions, and give them a phone number. The stated purpose is to ensure that state residents know their rights and what services are available. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services. Its stated purpose is to ensure that pregnant women know when they are receiving care from licensed professionals. In a case under the First Amendment, the Ninth Circuit affirmed the denial of a preliminary injunction.The Supreme Court reversed, holding that the licensed notice requirement likely violates the First Amendment. Content-based laws “are presumptively unconstitutional" and may be justified only if narrowly tailored to serve compelling state interests. The notice is a content-based regulation, requiring a particular message. Speech is not unprotected merely because it is uttered by professionals. The notice is not limited to “purely factual and uncontroversial information about" services. Nor is it a regulation of professional conduct that incidentally burdens speech; it applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought. Other facilities, including general clinics providing the same services, are not subject to the requirement. If states could choose the protection that speech receives simply by requiring a license, they would have a powerful tool to impose “invidious discrimination of disfavored subjects.” Assuming that California’s interest in providing low-income women with information about state-sponsored service is substantial, the licensed notice is not sufficiently drawn to promote it but is “wildly underinclusive,” applying only to clinics that have a “primary purpose” of “providing family planning or pregnancy-related services” while excluding other types clinics that also serve low-income women and could educate them about the state’s services. California could also inform the women about services “without burdening a speaker with unwanted speech,” most obviously through a public-information campaign.The unlicensed notice also unduly burdens protected speech. A disclosure requirement cannot be “unjustified or unduly burdensome,” must remedy a harm that is “potentially real not purely hypothetical,” and can extend “no broader than reasonably necessary.” California has not demonstrated any justification that is more than “purely hypothetical.” View "National Institute of Family and Life Advocates v. Becerra" on Justia Law

When a phone connects to a cell site, it generates time-stamped cell-site location information (CSLI) that is stored by wireless carriers for business purposes. The FBI identified the cell phone numbers of robbery suspects. Prosecutors obtained court orders to get the suspects’ CSLI under the Stored Communications Act, which requires “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation,” 18 U.S.C. 2703(d), rather than a showing of probable cause. With CSLI for Carpenter’s phone, the government cataloged Carpenter’s movements over 127 days, showing that Carpenter’s phone was near four robbery locations at the time those robberies occurred. After denial of his motion to suppress, Carpenter was convicted. The Sixth Circuit affirmed. The Supreme Court reversed, holding that the acquisition of Carpenter’s cell-site records was a Fourth Amendment search. The Fourth Amendment protects expectations of privacy “that society is prepared to recognize as reasonable” so that official intrusion generally qualifies as a search and requires a warrant supported by probable cause. Historical cell-site records give the government near-perfect surveillance, allow it to travel back in time to retrace a person’s whereabouts. Rejecting an argument that the third-party doctrine governed these “business records,” the Court noted the “world of difference between the limited types of personal information” addressed in precedent and the “exhaustive chronicle of location information casually collected by wireless carriers.” CSLI is not truly “shared” because cell phones are an indispensable, pervasive part of daily life and they log CSLI without any affirmative act by the user. The Court noted that its decision is narrow and does not address conventional surveillance tools, such as security cameras, other business records that might reveal location information, or collection techniques involving foreign affairs or national security. View "Carpenter v. United States" on Justia Law

Minnesota law prohibits wearing a “political badge, political button, or other political insignia” inside a polling place on Election Day, Minn. Stat. 211B.11(1), including clothing and accessories with political insignia. Election judges are authorized to decide whether a particular item is banned. Days before the 2010 election, plaintiffs challenged the ban. In response, the state distributed guidance with specific examples of prohibited apparel: items displaying the name of a political party or the name of a candidate, items supporting or opposing a ballot question, “[i]ssue oriented material designed to influence or impact voting,” and “[m]aterial promoting a group with recognizable political views.” Cilek allegedly was turned away from the polls for wearing a “Please I.D. Me” button, a “Don’t Tread on Me” T-shirt, and a Tea Party Patriots logo. The Supreme Court reversed the Eighth Circuit’s rejection of the constitutional challenges. Minnesota’s political apparel ban violates the First Amendment’s Free Speech Clause. Because the ban applies only in a “nonpublic forum,” its content-based restrictions would be constitutional if “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view,” The statute makes no distinction based on the speaker’s political persuasion and serves a permissible objective: to set aside polling places as “an island of calm.” The state may reasonably decide that the interior of the polling place should reflect the distinction between voting and campaigning. However, the “unmoored use of the term “political” in the Minnesota law, combined with haphazard interpretations" render the law unconstitutional for lack of narrow tailoring to serve that objective. Its indeterminate prohibitions present “[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.” An election judge’s own politics may shape his views on what is “political.” View "Minnesota Voters Alliance v. Mansky" on Justia Law