Justia Communications Law Opinion Summaries

Clark was indicted under 720 ILCS 5/14-2(a)(1)(A) for having used an eavesdropping device to record a conversation between himself and attorney Thomas without her consent and having used a device to record a conversation between himself, Judge Janes, and Thomas while Janes was acting in the performance of official duties, without the consent of either. Defendant stated that he was in court and attorney Thomas was representing the opposing party; there was no court reporter nor was there any recording device, so he made recordings to preserve the record. He claimed he had a first amendment right to gather information by recording officials performing their public duties. The circuit court dismissed, holding that the statute is unconstitutional on substantive due process and first amendment grounds. The Illinois Supreme Court affirmed, reasoning that if another person overhears what we say, that person may write it down and publish it, but if that same person records our words with a recording device, even if it is not published in any way, a criminal act has been committed. The statute goes too far in its effort to protect individuals’ interest in the privacy of their communications and burdens substantially more speech than necessary to serve interests it may legitimately serve. It does not meet the requirements necessary to satisfy intermediate scrutiny.View "People v. Clark" on Justia Law

Defendant was charged with computer tampering in an unrelated case. The docket sheet, the judge’s half sheet, and the court call sheet for the arraignment date indicate that defendant was not in court and that the arraignment did not take place. Defendant’s efforts to have a court reporter change the transcript were unsuccessful. The court reporter referred defendant to her supervisor, Taylor. In a telephone conversation, Taylor explained that any dispute over the accuracy of a transcript should be presented to the judge. Defendant surreptitiously recorded three telephone conversations with Taylor and posted recordings and transcripts of the conversations on her website. Defendant eventually obtained a fraudulent court transcript. Defendant was charged with eavesdropping, (720 ILCS 5/14-2(a)(1), and using or divulging information obtained through the use of an eavesdropping device, 720 ILCS 5/14-2(a)(3). Defendant claimed am exception for “reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against the person … and there is reason to believe that evidence of the criminal offense may be obtained.” The state argued that the exception did not apply because the reporter accused of creating a forged transcript was not a party to the recorded conversations. After a mistrial, the court found the statute facially unconstitutional and unconstitutional as applied to defendant. The Illinois Supreme Court affirmed, applying intermediate scrutiny and finding the statutes overbroad as criminalizing a range of innocent conduct. The eavesdropping statute does not distinguish between open and surreptitious recording and burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy. The language of the recording statute criminalizes the publication of any recording made on a cellphone or other such device, regardless of consent. View "People v. Melongo" on Justia Law

Defendant was indicted on several charges, including third-degree burglary, third-degree theft, and third-degree receiving stolen property. Defendant filed a motion to suppress. The trial court found that defendant had a reasonable expectation of privacy under State law and that the police should have obtained a warrant before tracking defendant via cell-tower information from T-Mobile. Nonetheless, the court admitted the evidence under the emergency aid exception to the warrant requirement. Defendant pled guilty to third-degree burglary and third-degree theft and was sentenced in accordance with a plea agreement. The Appellate Division affirmed the sentence and later allowed defendant to reopen his appeal to challenge the suppression ruling. The Appellate Division affirmed on different grounds, concluding that defendant lacked a reasonable expectation of privacy in his cell-phone location information and that the police lawfully seized evidence in plain view. The panel did not consider the emergency aid doctrine. The Supreme Court granted defendant's petition review of the validity of defendant's arrest based on law enforcement's use of information from defendant's cell phone provider about the general location of the cell phone and the application of the plain view exception to the warrant requirement. The Court concluded that the New Jersey Constitution protects an individual's privacy interest in the location of his or her cell phone. Police must obtain a warrant based on a showing of probable cause, or qualify for an exception to the warrant requirement, to obtain tracking information through the use of a cell phone.View "New Jersey v. Earls" on Justia Law

When basketball legend Michael Jordan was inducted into the Naismith Memorial Basketball Hall of Fame in 2009, Sports Illustrated produced a special commemorative issue devoted exclusively to Jordan’s remarkable career. Jewel Foods was offered free advertising space in the issue for agreeing to stock the magazine in its 175 stores. Jewel submitted a full-page ad congratulating Jordan, which ran on the inside back cover of the commemorative issue. To Jordan the ad constituted a misappropriation of his identity for the supermarket chain’s commercial benefit. He sought $5 million in damages, alleging violations of the federal Lanham Act, the Illinois Right of Publicity Act, the Illinois deceptive-practices statute, and the common law of unfair competition. The district court accepted Jewel’s First Amendment defense, that its ad was “noncommercial” speech with full First Amendment protection. The Seventh Circuit reversed and remanded. Jewel’s ad prominently featured the “Jewel-Osco” logo and marketing slogan, which were creatively and conspicuously linked to Jordan in the text of the ad’s congratulatory message. The ad was a form of image advertising aimed at promoting the Jewel-Osco brand; it was commercial speech and subject to the laws cited by Jordan.View "Jordan v. Jewel Food Stores, Inc," on Justia Law

GLAAD filed a putative class action alleging that CNN violated California's Unruh Civil Rights Act, Cal. Civ. Code 51 et seq., and California's Disabled Persons Act (DPA), Cal. Civ. Code 54 et seq., by intentionally excluding deaf and hard of hearing visitors from accessing the videos on CNN.com. CNN filed a motion to strike under California's anti-SLAPP law, Cal. Civ. Proc. Code 425.16 et seq., arguing that GLAAD's claims arose from conduct in furtherance of CNN's free speech rights and that GLAAD failed to establish a probability of prevailing on its claims. The court concluded that CNN's conduct was in furtherance of its free speech rights on a matter of public interest; where, as here, an action directly targeted the way a content provider chose to deliver, present, or publish news content on matters of public interest, that action was based on conduct in furtherance of free speech rights and must withstand scrutiny under California's anti-SLAPP statute; GLAAD failed to establish a probability of success on the merits of its Unruh Act claims because it has not shown intentional discrimination based on disability as required under California law; at this juncture, none of CNN's constitutional challenges posed a barrier to GLAAD's pursuit of its DPA claims; GLAAD's DPA claims were not foreclosed by the doctrines of field preemption and conflict preemption; GLAAD's DPA claims have the requisite minimal merit to survive CNN's free speech challenge and dormant Commerce Clause challenge; and the court certified to the California Supreme Court the remaining dispositive question of state law regarding GLAAD's DPA claims. Accordingly, the court vacated the district court's order denying CNN's motion to dismiss. View "Greater L.A. Agency on Deafness v. CNN" on Justia Law

The Indiana War Memorials Commission requires a permit for even small gatherings at the Soldiers and Sailors Monument at Monument Circle in Indianapolis and at several other monuments. Smith and his young son were expelled from Monument Circle for protesting, without a permit, a proposed United Nations arms treaty. Smith sought an injunction against the policy’s enforcement. The district court denied his motion. The Seventh Circuit reversed, noting that the U.S. has signed, but has not ratified the treaty and that the permit policy has changed since the district court denied the motion. The new policy retains the problematic features of the old, so Smith’s appeal is not moot. Smith seems likely to succeed in showing that the 14‐person limit on demonstrations without a permit, and a provision that, if a gathering has been advertised or the public has been invited, a permit is required even if the group ultimately is made up of fewer than 15 people, are not narrowly tailored. View "Smith v. Exec. Dir. of IN War Mem'ls Comm'n" on Justia Law

Indianapolis requires adult bookstores to remain closed between midnight and 10 a.m. every day and all day Sunday. Other retail businesses are not subject to the restrictions. Indianapolis contended that closure would curtail secondary effects, but the Seventh Circuit rejected the claim. The district court then held a trial and accepted the city’s claim of fewer armed robberies at or near adult bookstores. The Seventh Circuit reversed and remanded for entry of an injunction prohibiting enforcement. The city did not use a multivariate regression to control for other potentially important variables, such as the presence of late‑night taverns. The difference in the number of armed robberies is not statistically significant. The data did not show that robberies are more likely at adult bookstores than at other late-night retail outlets, such as liquor stores and convenience stores, which are not subject to the hours imposed on bookstores. The secondary-effects approach endorsed by the Supreme Court permits governments to protect persons who want nothing to do with adult uses from harms created by adult businesses; the Supreme Court has not endorsed an approach under which governments can close adult bookstores to reduce crime directed against businesses that accept the risk of being robbed, or persons who voluntarily frequent their premises. View "Annex Books, Inc. v. City of Indianapolis" on Justia Law

In 2008, the legislature enacted legislation to establish the Idaho Education Network (IEN), which was to be a high-bandwidth telecommunications distribution system for distance learning in every public school in the state. Syringa Networks, LLC (Syringa), an Idaho telecommunications company, entered into a “teaming agreement” with ENA Services, LLC (ENA). Pursuant to their agreement, ENA submitted a proposal in response to a request-for-proposals (RFP) with the Department of Administration, although the cover letter stated that both ENA and Syringa were responding jointly to the proposal. Qwest Communications Company, LLC, and Verizon Business Network Services, Inc., also submitted responsive proposals. The proposals were then scored based upon specific criteria; the ENA and Qwest proposals received the highest scores. The Department issued a letter of intent to award contracts to Qwest and ENA. One month later, it issued amendments to the two purchase orders to alter the scope of work that each would perform. Qwest became "the general contractor for all IEN technical network services" (providing the “backbone”) and ENA became "the Service Provider." The effect of these amendments was to make Qwest the exclusive provider of the backbone, which was what Syringa intended to provide as a subcontractor of ENA. Syringa filed this lawsuit against the Department, its director, the chief technology officer, ENA and Qwest. The district court ultimately dismissed Syringa’s lawsuit against all of the Defendants on their respective motions for summary judgment. Syringa then appealed the grants of summary judgment, and the State Defendants cross-appealed the refusal to award them attorney fees. Upon review, the Supreme Court affirmed the judgment dismissing all counts of the complaint except count three seeking to set aside the State's contract with Qwest on the ground that it was awarded in violation of the applicable statutes. Furthermore, the Court reversed Qwest’s award of attorney fees against Syringa. We remand to the trial court the determination of whether any of the State Defendants were entitled to an award of attorney fees against Syringa for proceedings in the district court. The Court awarded costs and attorney fees on appeal to ENA. Because the State Defendants and Syringa both prevailed only in part on appeal, the Court did not award them either costs or attorney fees on appeal.View "Syringa Networks v. Idaho Dept of Admin" on Justia Law

The petitioners, Bretton Woods Telephone Company, Inc., Dixville Telephone Company, Dunbarton Telephone Company, Inc., and Granite State Telephone, Inc., four exempt incumbent rural local exchange carriers (RLECs), appealed an order of the New Hampshire Public Utilities Commission (PUC) that denied their motion to rescind or declare null and void registrations of competitive local exchange carriers (CLECs) authorized by the PUC to engage in business as telephone utilities in the service territories of RLECs. Citing RSA 374:26 and RSA 374:22-g, among other statutes, the petitioners alleged that the PUC, before issuing the registrations, had failed to provide notice, hold hearings, and determine whether allowing such competition would be consistent with the public good. In light of the Supreme Court's decision in "Appeal of Union Tel. Co.," the petitioners specifically argued that federal law did not preempt these requirements. The PUC ultimately denied the petitioners' request and ruled that section 253(a) of the Telecommunications Act preempted RSA 374:26 and RSA 374:22-g, II. Upon review, the Supreme Court affirmed, finding that section 253(a) preempted state and local laws, regulations, and requirements that "prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." View "Appeal of Bretton Woods Telephone Company, Inc." on Justia Law

Following the death of a college student in Shippensburg, Hearst Television, Inc., d/b/a WGAL-TV and its reporter, Daniel O'Donnell (Requester), filed a Right to Know Law (RTKL) request with Michael Norris, the Coroner of Cumberland County (Coroner), seeking the student's manner of death. The Coroner rejected the request, and the Pennsylvania Office of Open Records (OOR) upheld the Coroner's decision. On appeal, the trial court and the Commonwealth Court affirmed. The Supreme Court reversed, holding that under Section 1236.1(c) of the Coroner's Act and the under the RTKL, the record indicating the manner of death was immediately available to Requester.View "Hearst Television Inc. v. Norris" on Justia Law