Justia Communications Law Opinion Summaries

Before Dante (age 2) died, his aunt, Mercado, filed a report with the Office of Children and Youth Services, which investigated Dante’s welfare. Bowie, who was dating Dante’s mother, was charged with murdering him. In criminal discovery, Bowie got documents from the investigation that were stored in a statewide database. He gave them to Mercado, who believed he was innocent. Mercado, wanting to blame Youth Services for failing to protect her nephew, started a Facebook group, “Justice for Dante.” and posted some of the documents. Bowie was acquitted. In the meantime, York County District Attorney Sunday charged Mercado with violating Pennsylvania’s Child Protective Services Law. The Law makes it a crime to willfully release or permit the release of any information contained in the Statewide child abuse database to persons or agencies not permitted to receive that information. The DA later dismissed the charge,Schrader, Dante’s grandmother, wants to publish documents generated during Youth Services’ investigation to further publicize Youth Services’ failures. She fears that she will be prosecuted if she does so. Invoking the First Amendment, she claimed that the Law is unconstitutional both on its face and as applied to her. The district court agreed with the as-applied challenge and preliminarily enjoined the prosecution of Schrader for sharing child-abuse documents concerning Dante. The Third Circuit vacated with instructions to narrow the injunction to eliminate a reference to "other documents" that may come into Schrader's possession. Under the content-focused test, the Law is likely unconstitutional as applied here. View "Schrader v. District Attorney York County" on Justia Law

In this appeal stemming from a challenge to Maryland's Digital Advertising Gross Revenues Tax Act the Court of Appeals vacated the orders of the circuit court granting a declaratory judgment that a digital advertising tax was unconstitutional and illegal under federal law the Court of Appeals held that the circuit court lacked jurisdiction over the action.At issue was Maryland's Digital Advertising Gross Revenues Tax Act, codified at Title 7.5 of the Tax-General Article, which imposed a tax on annual gross revenues of certain high revenue businesses derived from state digital advertising services. Plaintiffs, various subsidiaries of Comcast Corporation and Verizon Communications, Inc., filed this action seeking a declaratory judgment that the tax was unconstitutional and illegal. The circuit court granted judgment for Plaintiffs. The Court of Appeals vacated the orders below, holding (1) Plaintiffs failed to exhaust mandatory administrative and judicial review remedies provided in the Tax-General Article for the resolution of tax disputes; and (2) absent exhaustion of the available statutory administrative remedies, the circuit court lacked jurisdiction over the challenge. View "Comptroller v. Comcast" on Justia Law

Smith, wanting to expand her graphic design business to include wedding websites, worried that the Colorado Anti-Discrimination Act would require her to create websites celebrating marriages that defy her belief that marriage should be between one man and one woman. Smith intends to produce a story for each couple using her own words and original artwork, combined with the couple’s messages. The Tenth Circuit affirmed the denial of Smith’s request for an injunction.The Supreme Court reversed. The First Amendment prohibits Colorado from forcing a website designer to create expressive designs conveying messages with which the designer disagrees. The First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech “misguided.” Generally, the government may not compel a person to speak preferred messages. The wedding websites Smith seeks to create involve her speech and are pure speech protected by the First Amendment. Colorado seeks to put Smith to a choice prohibited by precedent. If she wishes to speak, she must either speak as Colorado demands or face sanctions for expressing her own beliefs.Public accommodations laws are vital to realizing the civil rights of all Americans; governments have a “compelling interest” in eliminating discrimination in places of public accommodation. States may protect gay persons, just as they protect other classes of individuals. However, public accommodations laws are not immune from the demands of the Constitution. Smith does not seek to sell an ordinary commercial good but intends to create “customized and tailored” expressive speech “to celebrate and promote the couple’s wedding.” Speakers do not shed their First Amendment protections by accepting compensation or employing the corporate form to disseminate their speech. Smith will gladly conduct business with those having protected characteristics when the product she is creating does not violate her beliefs. View "303 Creative LLC v. Elenis" on Justia Law

From 2014-2016, Counterman sent hundreds of Facebook messages to C.W., a local musician. Each time C.W. tried to block him, Counterman created a new Facebook account and resumed contacting C.W. Several of his messages envisaged violent harm. C.W. stopped walking alone, declined social engagements, canceled performances, and eventually contacted the authorities. Counterman was charged under a Colorado statute making it unlawful to repeatedly make any form of communication with another person in a manner that would cause a reasonable person to suffer serious emotional distress, that does cause that person to suffer serious emotional distress. Colorado courts rejected Counterman’s First Amendment argument.The Supreme Court vacated. In true-threat cases, the prosecution must prove that the defendant had some subjective understanding of his statements’ threatening nature.The First Amendment permits restrictions upon the content of speech in a few areas, including true threats--serious expressions conveying that a speaker means to commit an act of unlawful violence. The existence of a threat depends on what the statement conveys to the person receiving it but the First Amendment may demand a subjective mental-state requirement shielding some true threats because bans on speech have the potential to deter speech outside their boundaries. In this context, a recklessness standard, a showing that a person consciously disregarded a substantial and unjustifiable risk that his conduct will cause harm to another, is the appropriate mental state. Requiring purpose or knowledge would make it harder for states to counter true threats, with diminished returns for protected expression. View "Counterman v. Colorado" on Justia Law

Plaintiff, a tenured psychology professor at George Mason University (GMU), appealed the district court’s dismissal of his Title IX, procedural due process, and First Amendment claims against GMU and other defendants sued after he was disciplined for creating a hostile educational environment that amounted to sexual harassment.   The Fourth Circuit affirmed. The court explained that the district court correctly dismissed Plaintiff’s erroneous-outcome claim. Such a claim requires a plaintiff to plausibly allege that (1) he was subjected to a procedurally flawed or otherwise flawed proceeding; (2) which led to an adverse and erroneous outcome; and (3) involved particular circumstances that suggest ‘gender bias was a motivating factor behind the erroneous finding. Here, Plaintiff does not connect these generalized pressures to his case in a way that creates a reasonable inference that anti-male bias-motivated GMU’s finding that he sexually harassed his students. Thus, as the district court explained, Plaintiff “has provided no basis from which to infer the existence of bias in his specific proceeding.” Further, Plaintiff’s “allegations of selective enforcement are not supported by any well-pled facts that exist independent of his legal conclusions.” Finally, the court explained that while Plaintiff’s research, publishing, and teaching about sex may qualify as matters of public concern, his contested speech veered well outside his teaching and scholarship into areas of private, personal interest. View "Todd Kashdan v. George Mason University" on Justia Law

During the public comment period in a Zoom meeting of the Grand Traverse County Commission on January 20, 2021, MacIntosh expressed her concern about the Commission’s March 2020 invitation to and endorsement of the Proud Boys, a group that has been designated an extremist group and a hate group. She requested that the Commissioners make a public statement condemning the group’s violent behavior. In response, Commissioner Clous produced a high-powered rifle and displayed it to MacIntosh and the viewing audience.MacIntosh sued, alleging that Clous unconstitutionally retaliated against her for exercising her First Amendment rights and that the County had an unconstitutional policy or practice of allowing this kind of First Amendment retaliation. The district court denied his motion to dismiss based on qualified immunity. The Sixth Circuit affirmed. MacIntosh plausibly alleged that Clous violated MacIntosh’s free speech rights and Sixth Circuit caselaw put him on clear notice that his actions were unconstitutional. The court rejected Clous’s argument that his display of the rifle was not an “adverse action” that would deter a “person of ordinary firmness” from exercising her First Amendment rights. View "MacIntosh v. Clous" on Justia Law

The Communications Act of 1934 and the Telecommunications Act of 1996 were enacted to provide all Americans with universal access to telecommunications services. The Federal Communications Commission (FCC) implemented that mandate by establishing the Universal Service Fund, which now comprises four program mechanisms to “help[] compensate telephone companies or other communications entities for providing access to telecommunications services at reasonable and affordable rates throughout the country, including rural, insular and high costs areas, and to public institutions,” 47 U.S.C. 254. Certain telecommunications carriers must fund these efforts; on a quarterly basis, the FCC publishes the percentage of “interstate and international end-user telecommunications revenue” that covered telecommunications carriers must contribute to the Fund’s programs (the quarterly contribution factor). The Fund is administered by the Universal Service Administrative Company (USAC).A group of consumers, a nonprofit organization, and a carrier challenged this statutory arrangement as violating the nondelegation doctrine. They also alleged that the role of a private entity in administering the Fund violates the private-nondelegation doctrine. The Sixth Circuit denied a petition for review. Section 254 sufficiently guides the FCC’s discretion; Congress provided an intelligible principle and its delegation does not violate the separation of powers. USAC is subordinate to the FCC and performs ministerial and fact-gathering functions. View "Consumers' Research v. Federal Communications Commission" on Justia Law

independent-expenditure political action committees (super PACs) do not give money directly to candidates, party committees, or ballot-initiative movements. They spend money themselves to advocate for or against candidates, parties, or initiatives. The Fund wants to operate as an Indiana independent-expenditure PAC but fears that the state’s Election Code does not allow it to accept unlimited donations from corporations, in violation of the First Amendment. Indiana’s election officials say they do not believe their laws could be enforced that way.Indiana’s campaign finance laws allow corporations to make contributions "to aid in the election or defeat of a candidate or the success or defeat of a political party or a public question.” Section 4 imposes limits on direct corporate contributions to candidates and party committees but imposes no cap on contributions to committees unaffiliated with a political party, such as PACs. Section 5 ensures that corporations cannot use PACs as a loophole to avoid contribution caps by requiring corporations to designate their contributions to PACs “for disbursement to a specific candidate or committee listed under section 4.” Section 5 does not address how or whether a corporation could earmark a contribution for a PAC's independent expenditure for or against a candidate or party.The Seventh Circuit certified to the Indiana Supreme Court Does the Indiana Election Code—in particular, sections 3-9-2-3 to -6—prohibit or otherwise limit corporate contributions to PACs or other entities that engage in independent campaign-related expenditures? View "Indiana Right to Life Victory Fund v. Morales" on Justia Law

The Lemasters run a Lawrence County, Kentucky towing business, which was on the county’s “rotation list” of companies to call when it needed to order a tow. Both as fire chief and in his towing business, Lemaster sparred with Carter, Lawrence County’s “judge-executive,” the elected head of its executive branch. Lemaster criticized Carter on Facebook. Five days later, the 911 Center sent an email to dispatchers; its subject identified Lemaster Towing and the Cherryville Fire Department. Its body stated in all caps: “Per Judge Carter do not tone them out on any fire calls[;] use nearest department[;] . . . Lemaster Towing is no longer on the rotation list[.]”The Lemasters sued Carter and Lawrence County under 42 U.S.C. 1983 and state law, alleging that Carter violated the First Amendment by removing Lemaster Towing from the rotation list in retaliation for Lemaster’s criticisms. The district court granted the defendants summary judgment. The Sixth Circuit affirmed as to the Monell claims against the county; Lemaster did not tie the actions to any county policy. The court reversed as to Carter. Carter conceded that his communications with dispatch employees could constitute an adverse action. The record would allow a rational jury to find that Lemaster’s Facebook post motivated Carter’s decision to remove Lemaster Towing from the rotation list. View "Lemaster v. Lawrence County, Kentucky" on Justia Law

GEFT, a billboard company, sued under 42 U.S.C. 1983 because Monroe County did not allow the installation of a digital billboard along I-69. Receiving a sign permit required compliance with size limits, height restrictions, setback requirements, a ban on changeable-copy (or digital) signs, and a prohibition on off-premises commercial signs, The ordinance provided exceptions to the permit requirement for government signs and certain noncommercial signs. If a proposed sign was ineligible for a permit, the applicant could apply for a use variance, which required specific findings.The district court granted GEFT summary judgment and enjoined the permitting scheme and the variance procedures. The Seventh Circuit vacated in part, first declining to extend the injunction to encompass the entire ordinance. Monroe County’s substantive sign standards do not need a permitting scheme to function. Indiana law provides that local government entities can enforce their own ordinances through civil penalties or injunctions. The court reinstated the variance procedure. That procedure is a “prior restraint” but is not unconstitutional; it does not involve consideration of content, permits ample alternatives for speech, including displays of messages on signs, and it does not give the Board of Zoning Appeals so much discretion that it violates the First Amendment. View "GEFT Outdoor, LLC v. Monroe County Indiana" on Justia Law