Justia Communications Law Opinion Summaries

Tri-Corp, a nonprofit corporation, offered low-income housing to mentally disabled persons in Milwaukee. Its lender, the Wisconsin Housing and Economic Development Authority, filed a foreclosure action. Tri-Corp blamed others for its financial problems and named several third-party defendants. The state court allowed the foreclosure and rejected the third-party claims except those against Milwaukee Alderman Bauman, who removed the claims to federal court. Tri-Corp contends that Bauman is liable under 42 U.S.C. 1983 for issuing statements critical of its operations and for lobbying other officials to rule against it in administrative proceedings, in violation of the Fair Housing Act, the Rehabilitation Act, and the Americans with Disabilities Act. The Seventh Circuit joined six circuit courts in holding that section 1983 cannot be used to alter the categories of persons potentially liable in private actions under the Rehabilitation Act or the Americans with Disabilities Act. Tri-Corp did not allege that Bauman himself denied it any right under the Fair Housing Act, or even was a member of a public body that did so. Tri-Corp accuses Bauman of speech, not action. Public officials enjoy the right of free speech and the Noerr-Pennington doctrine applies to claims under the Act, allowing governmental officials to try to persuade other officials to take particular actions. View "Tri-Corp Hous. Inc. v. Bauman" on Justia Law

The 1988 Child Protection and Obscenity Enforcement Act requires producers of visual depictions of “actual sexually explicit conduct” to keep records documenting the identity and age of every performer in those depictions, 18 U.S.C. 2257(a). The 2006 Adam Walsh Child Protection and Safety Act, 18 U.S.C. 2257A, extended similar requirements to producers of depictions of “simulated sexually explicit conduct.” Producers are required to examine “an identification document” for each performer and maintain records listing each performer’s name and birthdate, available for inspection “at all reasonable times.” Producers must “affix[] to every copy” of covered depictions “a statement describing where the records . . . may be located.” After the district court dismissed a challenge, the Third Circuit identified viable as-applied and facial claims under the First and Fourth Amendments. Following remand, the Third Circuit held that the administrative search regime violates the Fourth Amendment, but that the laws did not violate the First Amendment. Reviewing the case for a third time, in light of 2015 Supreme Court holdings (Reed v. Town of Gilbert and City of Los Angeles v. Patel), the Third Circuit determined that the statutes are content-based, and require strict scrutiny review under the First Amendment and remanded. View "Free Speech Coal., Inc. v. Att'y Gen. of the United States" on Justia Law

A 2005 Pittsburgh ordinance states that: [n]o person or persons shall knowingly congregate, patrol, picket or demonstrate in a zone extending fifteen (15) feet from any entrance to the hospital and or health care facility," with exceptions for safety personnel and those assisting patients and others. A preamble states: “The exercise of a person’s right to protest or counsel against certain medical procedures is a First Amendment activity that must be balanced against another person’s right to obtain medical counseling and treatment in an unobstructed manner.” Plaintiffs, who engaged in “sidewalk counseling” outside of a Planned Parenthood facility to persuade women to forego abortion services, challenged the ordinance, citing the Supreme Court’s 2014 decision in McCullen v. Coakley, which struck down a similar Massachusetts law. The Third Circuit vacated dismissal of the First Amendment claims. Considered in the light most favorable to the plaintiffs, those claims are sufficient to go forward. The speech at issue is core political speech entitled to maximum First Amendment protection; the city cannot burden it without first trying, or at least demonstrating that it has seriously considered, substantially less restrictive alternatives that would achieve its legitimate, substantial, and content-neutral interests. McCullen indicates that the constitutionality of buffer zone laws turns on the factual circumstances giving rise to the law in each case, so dismissal of such challenges is rarely appropriate at the pleading stage. View "Bruni v. City of Pittsburgh" on Justia Law

Left Field publishes Chicago Baseball magazine, producing four issues per baseball season. Copies are sold for $2 outside Wrigley Field before the Chicago Cubs’ home games. On the day of the Cubs’ 2015 home opener, Chicago police officer Voulgaris saw Left Field’s editor, Smerge, selling the magazine at the corner of Clark and Addison streets. Voulgaris told Smerge to move across the street to comply with Chicago’s Adjacent Sidewalks Ordinance, which forbids all peddling on the streets adjacent to Wrigley Field. Smerge refused to move and was ticketed. Left Field sued under 42 U.S.C. 1983, contending that the ordinance violates the First Amendment. Chicago agreed not to enforce the ordinance pending a decision. The 2015 season ran its course. As the playoffs began, the district court declined to issue a preliminary injunction, noting the density of the area around the field and the tight passages. The Seventh Circuit affirmed. The ordinance does not regulate speech. It regulates peddling, without regard to what the peddler sells. The court noted that Left Field has never applied for a license: while additional issues could arise if the ordinance were applied to newspapers, the court expressed doubt that it would be applied to a newspaper. View "Left Field Media LLC v. City of Chicago" on Justia Law

HCEA was recognized under the Tennessee Education Professional Negotiations Act (EPNA) as the exclusive representative of Hamilton County Board of Education professional employees. In 2011, HCEA and the Board entered into a collective bargaining agreement (CBA), to expire in June 2014. While this agreement was in effect, Tennessee enacted the Professional Educators Collaborative Conferencing Act, replacing EPNA. PECCA would not govern the parties’ relationship until the expiration of their existing agreement. HCEA and the Board entered into the latest version of their CBA under EPNA in September 2013. PECCA created a new category: “management team” members, including principals and assistant principals, no longer considered “professional employees” entitled to participate in concerted activities as part of professional employee organizations. PECCA also made it unlawful for a professional employee organization to “[c]oerce or attempt to intimidate professional employees who choose not to join a professional employee organization.” Communications following HCEA’s September 2013 monthly meeting resulted in a Board letter, requesting that HCEA “refrain from … negative or coercive statements.” HCEA filed suit, alleging violation of EPNA and the First Amendment. The Sixth Circuit affirmed summary judgment favoring the Board. EPNA claims were not rendered moot by PECCA’s intervening effective date, but the letter did not violate EPNA. It contained no threat of reprisal and did not significantly burden HCEA’s expressive activity. View "Hamilton Cnty. Ed. Ass'n. v. Hamilton Cnty. Bd. of Educ." on Justia Law

Milwaukee ordinances required certain licenses before a business was permitted to offer nude or partially nude entertainment. Six Star, which applied for a license, and Ferol, which did not apply challenged these ordinances, seeking injunctive relief and damages. Once the ordinances were repealed, they dropped their requests for injunctive relief but continued to pursue damages. The district court held that the ordinances addressed time, place, and manner of expression, but did not include the necessary procedural safeguards. A jury then decided that but for the unconstitutional ordinances, Ferol would have opened a club providing nude entertainment. It awarded Ferol compensatory damages in the form of lost profits, and gave Six Star nominal damages. The Seventh Circuit affirmed, rejecting the city’s argumens that Ferol had no injury and therefore no standing to challenge the ordinances, and its challenge to Ferol’s theory of causation and the award of nominal damages to Six Star. View "Six Star Holdings, LLC v. City of Milwaukee" on Justia Law

In 2010 the IRS began to pay unusual attention to applications for exemption from federal taxes under Internal Revenue Code 501(c) coming from groups with certain political affiliations. It used "inappropriate criteria" to identify organizations with "Tea Party’" in their names, expanded the criteria to include "Patriots and 9/12," and gave heightened scrutiny to organizations concerned with “government spending, government debt or taxes,” “lobbying to ‘make America a better place to live[,]’” or “criticiz[ing] how the country is being run[.]” The IRS used a “‘Be On the Lookout’ listing” for more than 18 months. Applicants flagged by the criteria were sent to a “team of specialists,” where they experienced significant delays and requests for unnecessary information. The IRS demanded that many groups provide names of donors; a list of issues important to the organization and its position regarding such issues; and political affiliations. After the release of the Inspector General’s report, the plaintiffs sued, citing the Privacy Act, 5 U.S.C. 552a, the First and Fifth Amendments, and the Internal Revenue Code’s prohibition on the unauthorized inspection of confidential “return information,” 26 U.S.C. 6103(a), 7431. Plaintiffs sought discovery of basic information relevant to class certification. The district court ordered production of “Lookout” lists. A year later, the IRS had not complied, but sought a writ of mandamus. The Sixth Circuit denied that petition and ordered the IRS to comply. View "United States v. NorCal Tea Party Patriots" on Justia Law

This case arose from a New York Times article about Senator Rand Paul, which briefly quotes Walter Block, an economics professor. Block filed suit against defendants asserting claims for defamation and false light invasion of privacy. Although Block does not dispute that he made the statements at issue, he argues that the article takes the statements so far out of context as to make them untrue and defamatory. The district court granted a special motion to strike under Louisiana Code of Civil Procedure article 971 (anti-SLAPP law), dismissed the complaint, and awarded defendants attorney's fees. In Lozovyy v. Kurtz, the court interpreted Louisiana law and concluded that “the Louisiana Supreme Court would recognize that Article 971’s ‘probability of success’ standard does not permit courts to weigh evidence, assess credibility, or resolve disputed issues of material fact.” Because the district court lacked the benefit of the court's recent guidance in Lozovyy, the court vacated and remanded for the district court to apply the standard. On remand, the district court should consider whether Block has established a genuine dispute of material fact on each element of his claims. View "Block v. New York Times Co." on Justia Law

Ohio prohibited persons from disseminating false information about a political candidate in campaign materials during the campaign season “knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.” Ohio Rev. Code 3517.21(B)(10), specifically prohibiting false statements about a candidate’s voting record. The statute established a multi-step complaint process involving the Elections Commission, culminating in referral to a prosecutor. If convicted in subsequent state court proceedings, violators could be sentenced to prison or fined. In 2010, then-Congressman Driehaus filed a complaint alleging that SBA issued a press release accusing him of voting for “taxpayer-funded abortion” by voting for the Affordable Care Act. The Commission issued a probable cause finding. SBA sued Driehaus and state officials. That case was consolidated with a similar case, adding the Commission as a defendant. The U.S. Supreme Court found the case ripe as a facial challenge, despite the dismissal of Commission proceedings. On remand, the district court granted SBA summary judgment, holding that Ohio’s political false statement laws were content-based restrictions that fail strict scrutiny review. The Sixth Circuit affirmed, characterizing the laws as content-based restrictions that burden core protected political speech, not narrowly tailored to achieve state interests in promoting fair elections. View "Susan B. Anthony List v. Driehaus" on Justia Law

In 2000, Kubiak, a Chicago patrol officer for 14 years, was detailed to the Office of News Affairs, as a media liaison. In 2012, Zala, another media liaison, allegedly ran toward Kubiak, screaming, “Who the fuck do you think you are, you stupid bitch?” He swung his hand back as if to strike her. Officer Perez tried to calm Zala. Kubiak called Director Stratton, stating that Zala had previously directed similar outbursts toward her. During the call, Zala continued to berate and intimidate her. Kubiak alleges that Zala has a history of violence. Stratton told Kubiak that she had spoken with Zala and would not discuss the incident further. Kubiak’s supervising Lieutenant also declined to discuss the incident. Kubiak initiated an Internal Affairs Division investigation, which was “sustained.” Within days, Kubiak was reassigned as a patrol officer on a midnight shift in an allegedly dangerous neighborhood. Perez was also reassigned to patrol. Kubiak, the most senior ONA member, and Perez were the only officers reassigned although others had requested transfer. Kubiak alleges that Zala was never reprimanded. The Seventh Circuit affirmed dismissal of Kubiak’s 42 U.S.C. 1983 claims, concluding that Kubiak’s speech was not constitutionally protected since Kubiak did not speak as a private citizen and did not speak on a matter of public concern. View "Kubiak v. City of Chicago" on Justia Law