Justia Communications Law Opinion Summaries

Austin Texas specially regulates signs that advertise things that are not located on the same premises as the sign and signs that direct people to offsite locations (off-premises signs). Its sign code prohibited the construction of new off-premises signs. Grandfathered off-premises signs could remain in their existing locations but could not be altered in ways that increased their nonconformity. On-premises signs were not similarly restricted. Advertisers, denied permits to digitize some billboards, argued that the prohibition against digitizing off-premises signs, but not on-premises signs, violated the First Amendment. The district court upheld the code. The Fifth Circuit reversed, finding the distinction "facially content-based" because an official had to read a sign’s message to determine whether it was off-premises.The Supreme Court reversed, rejecting the view that any examination of speech or expression inherently triggers heightened First Amendment concern. Restrictions on speech may require some evaluation of the speech and nonetheless remain content-neutral. The on-/off-premises distinction is facially content-neutral; it does not single out any topic or subject matter for differential treatment. A sign’s message matters only to the extent that it informs the relative location. The on-/off-premises distinction is more like ordinary time, place, or manner restrictions, which do not trigger strict scrutiny. Content-based regulations are those that discriminate based on the topic discussed or the idea or message expressed. The Court remanded, noting that evidence that an impermissible purpose or justification underpins a facially content-neutral restriction may mean that the restriction is nevertheless content-based and, to survive intermediate scrutiny, a restriction on speech or expression must be “narrowly tailored to serve a significant governmental interest.” View "City of Austin v. Reagan National Advertising of Austin, LLC" on Justia Law

Wilson, a member of the Board of Trustees of the Houston Community College System, brought multiple lawsuits challenging the Board’s actions. In 2016, the Board publicly reprimanded Wilson. He continued to charge the Board with violating its ethical rules and bylaws, in media outlets and in state-court actions. In 2018, the Board adopted a public resolution “censuring” Wilson and stating that his conduct was “not consistent with the best interests of the College” and “reprehensible.” The Board deemed Wilson ineligible for Board officer positions during 2018. The Fifth Circuit reversed the dismissal of Wilson’s suit under 42 U.S.C. 1983.The Supreme Court held that Wilson does not possess an actionable First Amendment claim arising from the Board’s purely verbal censure. In First Amendment cases, long-settled and established practice “is a consideration of great weight.” Elected bodies have long exercised the power to censure their members. In disagreements of this sort, the First Amendment permits “[f]ree speech on both sides and for every faction on any side.”A plaintiff pursuing a First Amendment retaliation claim must show that the government took an “adverse action” in response to his speech that “would not have been taken absent the retaliatory motive.” Any fair assessment of the materiality of the Board’s conduct must consider that elected representatives are expected to shoulder some criticism about their public service and that the only adverse action at issue is itself a form of speech from Wilson’s colleagues. The censure did not prevent Wilson from doing his job and did not deny him any privilege of office. Wilson does not allege it was defamatory. The censure does not qualify as a materially adverse action capable of deterring Wilson from exercising his own right to speak. View "Houston Community College System v. Wilson" on Justia Law

Riley’s Farm provides historical reenactments and hosts apple picking. In 2001-2017, schools within the District took field trips to Riley’s. In 2018, Riley used his personal Twitter account to comment on controversial topics. Parents complained; a local newspaper published an article about Riley and his postings. The District severed the business relationship. In a 42 U.S.C. 1983 suit alleging retaliation for protected speech, the district court granted the District defendants summary judgment.The Ninth Circuit reversed as to injunctive relief but affirmed as to damages. Riley made a prima facie case of retaliation; he engaged in expressive conduct, some of the District defendants took an adverse action that caused Riley to lose a valuable government benefit, and those defendants were motivated by Riley’s expressive conduct. There was sufficient evidence that Board members had the requisite mental state to be liable for damages. The defendants failed to establish that the District’s asserted interests in preventing disruption to their operations and curricular design because of parental complaints outweighed Riley’s free speech interests. Even assuming that the selection of a field trip venue was protected government speech, the pedagogical concerns underlying the government-speech doctrine did not apply because Riley was not speaking for the District. Nonetheless, the defendants were entitled to qualified immunity on the damages claim. There was no case directly on point that would have clearly established that the defendants’ reaction to parental complaints and media attention was unconstitutional. View "Riley’s American Heritage Farms v. Elsasser" on Justia Law

The Trademark Trial and Appeal Board affirmed an examiner’s refusal to register the trademark “TRUMP TOO SMALL” for use on T-shirts. According to Elster’s registration request, the phrase he sought to trademark invokes a memorable exchange between then-candidate Trump and Senator Marco Rubio from a 2016 presidential primary debate, and aims to “convey[] that some features” of Trump’s “policies are diminutive.” The Board’s decision was based on the Lanham Act, 15 U.S.C. 1052(c), and the Board’s finding that the mark included the surname of a living individual without his consent.The Federal Circuit reversed. Applying section 2(c) to bar registration of Elster’s mark unconstitutionally restricts free speech in violation of the First Amendment. Section 2(c), prohibits registration of a trademark that [c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow.” As applied in this case, section 2(c) involves content-based discrimination that is not justified by either a compelling or substantial government interest. View "In Re Elster" on Justia Law

The FCC promulgated a regulation which originally authorized the installation on private property, with the owner's consent, of "over-the-air reception devices," regardless of State and local restrictions, "including zoning, land-use, or building regulation[s], or any private covenant, homeowners' association rule or similar restriction on property." The FCC later expanded coverage to include antennas that act as "hub sites" or relay service to other locations. Petitioners, expressing concern about possible health effects from increased radiofrequency exposure, argued that the proliferation of commercial-grade antennas would increase the suffering of those with radiofrequency sensitivity—violating their rights under the Americans with Disabilities Act (ADA), the Fair Housing Act (FHA), and the U.S. Constitution's protections of private property and personal autonomy. Petitioners also contend that the amendments would deny affected individuals fair notice and an opportunity to be heard.The DC Circuit first concluded that two of the petitioners' interests are impacted directly by the FCC's order and that CHD has associational standing. The court also concluded that the Commission's citation of and reliance on the Commission's Continental Airlines decision provided sufficient explanation for its authority to expand the regulation to hub-and-relay antennas carrying broadband Internet. The court rejected petitioners' contentions to the contrary that the order is unsupported by Section 303 of the Communications Act. Finally, the court rejected petitioners' contention that the order lacks a reasoned foundation because the Commission disregarded the human health consequences of its action. Rather, the court concluded that the Commission sufficiently explained that its order does not change the applicability of the Commission's radio frequency exposure requirements and that such concerns were more appropriately directed at its radiofrequency rulemaking. Furthermore, the Commission may also preempt restrictions on the placement of the new category of antennas now included in the regulation. Therefore, the court denied the petition challenging the FCC's order. View "Children's Health Defense v. Federal Communications Commission" on Justia Law

The Supreme Court affirmed the orders of the district court denying the motion for judgment on the pleadings filed by the Associated Press and other news reporting outlets (collectively, the AP) and granting a motion to dismiss filed by Barry Usher, holding that the district court did not err.During the state's biennial legislative session in 2021, Usher, who was the Chair of the Judiciary Committee of the Montana House of Representatives, and other Republican members of the Committee met privately to discuss pending legislation. Because Usher denied the AP access to the gathering, the AP brought this lawsuit, seeking a declaratory judgment that this denial of access was a constitutional violation. The district court granted Usher's motion to dismiss, concluding that the gathering was controlled by the open meeting statute, Mont. Code Ann. 2-3-202, and that applying the statute in this case did not violate the AP's Mont. Const. art. II, 9 right to access a gathering of Judiciary Committee members. The Supreme Court affirmed, holding that the district court did not err in applying the statutory definition of a "meeting" to the AP's constitutional right to access a gathering of Judiciary Committee members. View "Associated Press v. Usher" on Justia Law

The Supreme Court granted a writ of mandamus sought by The Cincinnati Enquirer, a Division of Gannett GP Media, Inc., and directed at two judges of the Kentucky Court of Appeals who presided over separate trials in which the Enquirer was denied leave to intervene, holding that the Court of Appeals erred.These matters concerned constitutional challenges to Casey's Law, Ky. Rev. Stat. 222.430. Because all proceedings in such actions are confidential and not open to the general public the Court of Appeals entered orders in each action directing the record to remain confidential and restricting access to the Court. The Enquirer moved to intervene in each action to obtain access in order to court records. Intervention was denied. The Supreme Court reversed, holding that the Court of Appeals erroneously denied access to the record. View "Cincinnati Enquirer v. Honorable Dixon" on Justia Law

Spokane Public Library hosted a children’s event called “Drag Queen Story Hour.” Because the event proved controversial, police separated 150 protesters and 300 counterprotesters into separate zones near the library. Yaghtin arrived at the event wearing a press badge and identified himself as a member of the press. Yaghtin alleges he was assigned a police “detail” to accompany him through a crowd of counterprotesters out of concern that he was “fake press.” While walking through the counterprotest zone, Yaghtin began speaking with a counterprotester, who asked him whether he was the person that had advocated for the execution of gay people. Officer Doe interrupted the exchange, and escorted Yaghtin through the counterprotest zone. Affirming the dismissal of a suit under 42 U.S.C. 1983, the Ninth Circuit held that Doe was entitled to qualified immunity. The plaintiffs did not challenge the ordinance or permit scheme, nor the police department’s use of separate protest zones. No precedent would have alerted Doe that his enforcement would violate clearly established First Amendment law; it was not unreasonable for Doe to believe that it was lawful for him to examine the substance of Yaghtin’s speech to enforce the separate protest zone policy. The city cannot be held liable because nothing in the complaint plausibly alleged a policy, custom, or practice leading to any violation. Plaintiffs’ allegations amounted to only an “isolated or sporadic incident” that could not form the basis of liability under “Monell.” View "Saved Magazine v. Spokane Police Department’" on Justia Law

The Supreme Court held that the West Virginia Wiretapping and Electronic Surveillance Act (West Virginia Act), W. Va. Code 62-1D-1 through 16, runs afoul of the First Amendment to the federal Constitution and W. Va. Const. art. III, 7 and is unconstitutional as appleid to the extent that it allows a civil action to be maintained against an innocent third party who publishes information of public concern that was obtained by the unlawful interception of wire, oral, or electronic communication in violation of the statute but who did not participate in the unlawful interception of the communication.Petitioners, public school employees, alleged that the mother of A.P., a special education student in their classroom, violated both the West Virginia Act and its federal construct by placing a secret audio recording device in A.P.'s hair, purporting to show Petitioners physically and verbally abusing students. After Petitioners resigned, they brought this complaint alleging that Respondents, various media groups or outlets, violated the West Virginia Act by using and disclosing Petitioners' intercepted communications. The circuit court granted Respondents' motions to dismiss. The Supreme Court affirmed, holding that the circuit court did not err in dismissing the case. View "Yurish v. Sinclair Broadcast Group, Inc." on Justia Law

In 1981, a Georgia federal district court concluded that Atlanta’s zoning regulations for adult businesses were constitutionally overbroad in their entirety and permanently enjoined their enforcement. Atlanta did not appeal. Cheshire operates an Atlanta adult novelty and video store, Tokyo Valentino, and sued, asserting that the definitions of “adult bookstore,” “adult motion picture theater,” “adult mini motion picture theater,” “adult cabaret,” and “adult entertainment establishment” in the current Atlanta City Code are facially overbroad in violation of the First Amendment.On remand, the district court granted Atlanta summary judgment. The Eleventh Circuit affirmed. The district court did not err in providing a narrowing construction of certain terms (the term “patron” in the definitions of “adult motion picture theater” and “adult mini-motion picture theater”) in the challenged provisions. The phrase “intended, designed, or arranged” suggests that the challenged provisions do not apply to isolated or intermittent uses of the property. Cheshire failed to show that any overbreadth in the provisions is “substantial” as required by Supreme Court precedent. The challenged provisions do not purport to ban the activities or conduct they define or describe but are part of a zoning scheme regulating where covered establishments can locate or operate. View "Cheshire Bridge Holdings, LLC, v. City of Atlanta," on Justia Law