Justia Communications Law Opinion Summaries

Brunetti owns the clothing brand “fuct.” In 2011, individuals filed an intent-to-use application for the mark FUCT for items of apparel. The applicants assigned the application to Brunetti, who amended it to allege use of the mark. The examining attorney refused to register the mark under the Lanham Act, 15 U.S.C. 1052(a), finding it comprised immoral or scandalous matter because FUCT is the past tense of “fuck,” a vulgar word, and is therefore scandalous. The Trademark Trial and Appeal Board affirmed. The Federal Circuit reversed. While substantial evidence supports the Board’s findings and it did not err concluding the mark comprises immoral or scandalous matter, section 2(a)’s bar on registering immoral or scandalous marks is an unconstitutional restriction of free speech. The bar is a content-based restriction on speech; trademark registration is not a government subsidy program that could justify such a bar. Nor is trademark registration a “limited public forum,” in which the government can more freely restrict speech. The bar survives neither strict nor intermediate scrutiny. Even if the government had a substantial interest in protecting the public from scandalous or immoral marks, the regulation does not directly advance that interest because section 2(a) does not directly prevent applicants from using their marks. View "In re: Brunetti" on Justia Law

After receiving the answer to two certified questions from the Nevada Supreme Court, the Second Circuit affirmed the district court's dismissal of plaintiff's defamation suit. The Nevada Supreme Court held that a hyperlink to source material about a judicial proceeding may suffice as a report within the common law fair report privilege, and that the online petition, as it existed when plaintiff's complaint was filed, fell within the purview of Nevada's fair report privilege. The state court also held that, pursuant to Delucchi v. Songer, 396 P.3d 826 (Nev. 2017), Nevada's anti-SLAPP statute covers communication that is aimed at procuring any governmental or electoral action, result or outcome which is truthful or is made without knowledge of its falsehood, even if that communication was not addressed to a government agency. In this case, plaintiff failed to allege knowledge of falsity, much less facts to support such a conclusion. Therefore, the court affirmed the district court's denial of plaintiff's request for additional discovery and the district court's application of the anti‐SLAPP statute to this case. View "Adelson v. Harris" on Justia Law

The Supreme Court affirmed in part and reversed and remanded in part the circuit court’s order requiring the Arkansas Department of Correction (ADC) to provide Steven Shults with the pharmaceutical package inserts and labels for its supply of midazolam, one of the drugs in the State’s execution protocol.Shults filed a complaint against the ADC after it refused to provide him with public records pertaining to the State’s supply of midazolam pursuant to his Arkansas Freedom of Information Act request. The ADC refused to disclose the package inserts or labels for the midazolam, arguing that these documents could be used to identify the sellers or suppliers of the drug in violation of the Method of Execution Act (MEA), Ark. Code Ann. 5-4-617. On appeal, the Supreme Court held (1) the circuit court correctly determined that the identity of drug manufacturers is not protected under the confidentiality provisions of section 5-4-617; but (2) the circuit court erred in requiring disclosure of the unredacted records, as certain information was confidential under section 5-4-617(j). The court remanded the case for the circuit court to determine which information must be redacted on the midazolam labels and/or package inserts at issue. View "Arkansas Department of Correction v. Shults" on Justia Law

Salt Lake City’s denial of the request of Outfront Media, LLC, formerly CBS Outdoor, LLC (CBS), to relocate its billboard and grant of the relocation request of Corner Property L.C. were not arbitrary, capricious, or illegal.CBS sought to relocate its billboard to an adjacent lot along Interstate 15, and Corner Property sought to relocate its billboard to the lot CBS was vacating. On appeal, CBS argued that the City’s decision to deny its requested relocation was illegal because the City invoked the power of eminent domain to effect a physical taking of CBS’s billboard without complying with the procedural requirements that constrain the use of eminent domain. The district court upheld the City’s decisions. The Supreme Court affirmed, holding (1) the Billboard Compensation Statute, Utah Code 10-9a-513, creates a standalone compensation scheme that does not incorporate, expressly or impliedly, the procedural requirements that circumscribe the eminent domain power; and (2) the City’s decision was not illegal, arbitrary or capricious. View "Outfront Media, LLC v. Salt Lake City Corp." on Justia Law

Believing nonpublic content of the victim's Facebook account might provide exculpatory evidence helpful in preparing for trial, real-party-in-interest Lance Touchstone served petitioner Facebook with a subpoena for the subscriber records and contents of the victim's Facebook account, including timeline posts, messages, phone calls, photos, videos, location information and user-input information from account inception to the present date. Touchtone was awaiting trial for attempted murder. On the public portion of his Facebook page, the victim posted updates of court hearings in this case, asking his friends to attend the preliminary hearing. In public posts the victim also discussed his personal use of guns and drugs, and described his desire to rob and kill people. Facebook filed a motion to quash the subpoena on the ground the Stored Communications Act (SCA) prohibited disclosure of the victim's account contents. In an accompanying declaration, counsel for Facebook stated that Touchstone could obtain the requested contents directly from the victim or by working with the prosecutor to obtain a search warrant based on probable cause. The trial court denied the motion to quash and ordered Facebook to produce the contents of the victim's account for in camera inspection by a certain date. Facebook seeks a writ directing the trial court to vacate its order denying the motion to quash the subpoena and to enter a new order granting the motion to quash. Facebook contends the trial court abused its discretion by denying the motion to quash and ordering production of documents for in camera inspection because the SCA prohibits Facebook from disclosing the content of its users' accounts in response to a subpoena. Facebook further contends that compelling it to disclose the contents of the victim's account is not necessary to preserve Touchstone's constitutional right to a fair trial because Touchstone can obtain the contents directly from the victim or through the prosecutor via a search warrant. The Court of Appeal granted Facebook’s application and granted a writ of mandate, vacating the trial court’s order and effectively quashing the subpoena duces tecum. View "Facebook v. Superior Court" on Justia Law

Interstate 90 runs through Campbell, Wisconsin, with a speed limit of 65 miles per hour. Two streets and one pedestrian overpass cross the highway within the town. A traffic survey in 2008 found that 23,000-29,000 trucks and cars pass through the town on I-90 every day. The local Tea Party placed banners on the pedestrian overpass, bearing messages such as “HONK TO IMPEACH OBAMA,” leading the town to enact an ordinance forbidding all signs, flags, and banners (other than traffic-control information) on any of the overpasses, or within 100 feet of the end of those structures. The district court rejected a suit under 42 U.S.C. 1983 on summary judgment. The Seventh Circuit vacated as to the challenge to the 100-foot buffer zone but otherwise affirmed. The ordinance is content-neutral; it does not matter what message any privately placed sign bears. It is a time, place, and manner limit, permitting messages to be conveyed anywhere else in Campbell. A “state or local legislature that attempts to reduce the incidence of sudden braking on a superhighway cannot be thought to be acting irrationally or trying to suppress speech for no good reason.” The town did not try to justify the buffer zone. View "Luce v. Town of Campbell, Wisconsin" on Justia Law

ZL provides email archiving, eDiscovery, and compliance support to businesses nationwide. Glassdoor operates a website on which people may anonymously express opinions regarding employers. Individuals representing themselves as current or former ZL employees posted anonymous reviews on Glassdoor‘s website criticizing ZL‘s management and work environment. ZL filed a complaint against those individuals, naming them as Doe defendants and alleging libel per se (Civil Code 45) and online impersonation (Penal Code 528.5) to the extent any of them was not a ZL employee. ZL served a subpoena on Glassdoor, requesting identification and contact information for defendants. Glassdoor objected, arguing: violation of the First Amendment and California Constitution privacy rights; the posted statements were “protected opinion, patently hyperbolic, not harmful to reputation,” or uncontested statements of fact; Glassdoor‘s reputation would be harmed by disclosure; and, ZL was obligated to make a prima facie showing the statements were libelous before it could compel disclosure. The court denied ZL’s motion to compel. More than a year later, the court dismissed the action because of ZL‘s failure to serve the defendants. The court of appeal reversed. While an author‘s decision to remain anonymous is protected by the Constitution, a reasonable fact finder could conclude all of the reviews contained statements that declared or implied provably false assertions of fact, providing a legally sufficient basis for a defamation cause of action. View "ZL Technologies v. Doe" on Justia Law

Geraci, part of a police watchdog group, attended an anti-fracking protest at the Philadelphia Convention Center, carrying her camera and a pink bandana that identified her as a legal observer. When the police acted to arrest a protestor, Geraci moved to record the arrest without interfering. An officer pinned Geraci against a pillar for a few minutes, preventing her from observing or recording the arrest. Fields, a Temple University sophomore, was on a public sidewalk where he observed officers across the street breaking up a party. He took a photograph. An officer ordered him to leave. Fields refused; the officer arrested him, confiscated and searched Fields’ phone, and opened several photos. The officer released Fields with a citation for “Obstructing Highway and Other Public Passages.” The charge was later withdrawn. Fields and Geraci brought 42 U.S.C. 1983 claims, alleging First Amendment retaliation. Although the Police Department’s official policies recognized their First Amendment right, the district court granted the defendants summary judgment on those claims, finding no evidence that plaintiffs’ “conduct may be construed as expression of a belief or criticism of police activity.” The Third Circuit reversed, noting that every circuit that has addressed the issue has found that the First Amendment protects the act of photographing or otherwise recording police officers conducting their official duties in public. View "Fields v. City of Philadelphia" on Justia Law

The rock group “The Slants,” chose that name to dilute the term’s denigrating force as a derogatory term for Asians. The Patent and Trademark Office (PTO) denied an application for registration of the name under 15 U.S.C. 1052(a), which prohibits the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” The Supreme Court affirmed the Federal Circuit in finding the clause unconstitutional. The Court first rejected an argument that the clause applies only to natural or juristic persons. The Court then held that the clause is subject to the Free Speech Clause, which does not regulate government speech. Trademarks are private, not government speech. "If trademarks become government speech when they are registered, the Federal Government is babbling prodigiously and incoherently.” The disparagement clause denies registration to any mark that is offensive to a substantial percentage of the members of any group. That is viewpoint discrimination. The “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” The disparagement clause cannot withstand even “relaxed” review. It does not serve a “substantial interest,” nor is it “narrowly drawn.” View "Matal v. Tam" on Justia Law

North Carolina law made it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” N.C. Gen. Stat. 14–202.5(a), (e). The state has prosecuted over 1,000 people under that law. Petitioner was indicted after posting a statement on his personal Facebook profile about a positive traffic court experience. State courts upheld the law. The Supreme Court reversed. The statute impermissibly restricts lawful speech in violation of the First Amendment. Today, one of the most important places to exchange views is cyberspace, particularly social media. Even if the statute is content-neutral and subject to intermediate scrutiny, the provision is not “narrowly tailored to serve a significant governmental interest.” While social media will be exploited by criminals and sexual abuse of a child is a most serious crime, the assertion of a valid governmental interest “cannot, in every context, be insulated from all constitutional protections.” The statute “enacts a prohibition unprecedented in the scope of First Amendment speech it burdens…. With one broad stroke, North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” The state did not establish that this sweeping law is necessary to keep convicted sex offenders away from vulnerable victims. View "Packingham v. North Carolina" on Justia Law