Justia Communications Law Opinion Summaries

In 2014, a Norman restaurant's surveillance video captured an incident depicting Joe Mixon striking a woman. The Norman Police Department (Department) was called to the location, investigated, and obtained and reviewed the surveillance video. On Friday, August 15, 2014, a Department detective filed an affidavit of probable cause seeking an arrest warrant for Mixon. The detective stated probable cause existed based on interviews completed by other officers, injuries sustained by the victim, and the surveillance video of the incident which he described in detail. The same day, the Cleveland County District Attorney filed a criminal information, referencing the same incident number as the probable cause affidavit and alleging that Mixon committed the misdemeanor crime of Acts Resulting in Gross Injury when he struck the female. Mixon voluntarily appeared in district court to answer the charge and was arraigned. At the same time, the district court ordered Mixon to be processed by the Cleveland County Sheriff's Department and to remain in custody pending his posting a bond. KWTV News 9, a member of the Oklahoma Association of Broadcasters (Association), requested a copy of the surveillance video from Department and District Attorney, referencing the Open Records Act. The Norman City Attorney emailed KWTV News 9 that, barring changes, such as the judge ordering the video sealed, he did "not know of a reason why [Department] would not be willing to make copies of the Mixon video available for public inspection and copying after November 1." Without furnishing copies of the video, the Department allowed KWTV News 9 and other media to view the video. Association was not present at this viewing. Mixon entered an Alford Plea to the criminal charge. The same day, Association made a request under the Act for a copy of the surveillance video from the City and the Department and KWTV News 9 renewed its request. District Attorney responded, informing Association that it no longer had the video as it had given the video to the victim. City told KWTV News 9 that Department had delivered a copy of the video to the City Attorney, who placed it in a litigation file. The Association filed petition for declaratory judgment, injunctive relief, and mandamus. Defendants filed motions to dismiss. The district court granted the motion. Plaintiff appealed. The Court of Civil Appeals affirmed in part, reversed in part, and remanded the proceedings. The Supreme Court concluded that the Association was entitled to judgment as a matter of law and entitled to a writ of mandamus. The video was ordered to be a part of the court record and preserved by the attorneys. The Defendants had to allow the Association a copy of the surveillance video. View "Oklahoma Assoc. of Broadcasters, Inc. v. City of Norman" on Justia Law

Elonis’s wife left their home with their children. Elonis had trouble at work, leaving early and crying at his desk. Morrissey, an employee Elonis supervised, claimed sexual harassment. Elonis posted on Facebook a photograph, showing Elonis in costume holding a knife to Morrissey’s neck, captioned “I wish.” Elonis was fired. Days later, Elonis began posting statements about “sinister plans for all my friends,” and, concerning his wife, “smothered your ass … dumped your body” that their son “should dress up as matricide” and “I’m not going to rest until your body is a mess, soaked in blood and dying.” Following issuance of a protective order, Elonis posted statements concerning shooting at his wife’s house, using explosives, and “I’m checking out and making a name for myself.” After being visited by federal agents, he posted statements about blowing up SWAT members. Elonis was convicted of transmitting in interstate commerce communications containing a threat to injure another, 18 U.S.C. 875(c). The Third Circuit affirmed, rejecting an argument that he did not subjectively intend his Facebook posts to be threatening. The Supreme Court reversed, finding the jury instruction regarding Elonis’s mental state insufficient. On remand, the Third Circuit again affirmed Elonis’s conviction, finding the error harmless. The evidence overwhelmingly shows that Elonis posted the messages with either the purpose of threatening his ex-wife, or with knowledge that she would interpret the posts as threats. No rational juror could conclude otherwise. View "United States v. Elonis" on Justia Law

In 2010, the circuit court adjudicated Minnis a delinquent minor for committing the offense of criminal sexual abuse (720 ILCS 5/12-15(b) and sentenced him to 12 months’ probation. The adjudication for criminal sexual abuse rendered him a “sex offender” pursuant to the Registration Act (730 ILCS 150/2(A)(5), (B)(1); the court ordered Minnis to register as a sex offender. On December 17, 2010, defendant reported to the Normal police department to register. He disclosed his two e-mail addresses and his Facebook account. Defendant’s May 2011 registration form listed the same Internet information. Defendant registered again in August 2014, including his two e-mail addresses, but omitting his Facebook account. On September 9, Normal police officers viewed defendant’s publicly accessible Facebook profile online; Minnis had changed his Facebook cover photo only one month before his August 2014 registration. The circuit court of McLean County dismissed a charge of failure to register, finding that the Internet disclosure provision was overbroad in violation of the First Amendment. The Illinois Supreme Court reversed and remanded for trial, treating the challenge as one to facial validity. The Internet disclosure provision survives intermediate scrutiny. It advances a substantial governmental interest without chilling more speech than necessary. View "People v. Minnis" on Justia Law

Under the Facebook account name “Billy Button,” Browne began exchanging messages with 18-year-old Nicole. They met in person and exchanged sexually explicit photographs of themselves through Facebook chats. Browne threatened to publish the photos online unless Nicole engaged in oral sex and promised to delete the photos only if she provided him the password to her Facebook account. Using that account, Browne made contact with four minors and solicited explicit photos. Once he had their photos, he repeated the pattern, threatening to publish their images unless they engaged sexual acts. Alerted by the Virgin Islands Police Department, Department of Homeland Security (DHS) agents investigated, arrested Browne, executed a search warrant on his residence, and seized a cell phone from which text messages and photos of the minors were recovered. Browne admitted ownership of the phone and Facebook account. Facebook provided five sets of chats and a certificate of authenticity executed by its records custodian, which were admitted at trial. The Third Circuit affirmed his convictions for child pornography and sexual offenses with minors. While rejecting the government’s assertion that, under Rule 902(11), the contents of the communications were “self-authenticating” as business records accompanied by a certificate from the records custodian, the court found that the record reflected sufficient extrinsic evidence to link Browne to the chats and satisfy the prosecution’s authentication burden under a conventional Rule 901 analysis. View "United States v. Browne" on Justia Law

The police arrested defendant Gary Lunsford after they executed a search warrant at his home based on suspected criminal activity involving transactions in controlled dangerous substances (CDS). As part of its continuing investigation, the Monmouth County Grand Jury issued a subpoena duces tecum to a wireless telephone service provider requesting subscriber information associated with defendant's cell phone number, which was the contact for the controlled drug buys that led to defendant's arrest. Defendant filed a motion to quash, which the trial court granted, stating that a communications data warrant (CDW - the equivalent of a search warrant), was needed to obtain telephone billing records. The Attorney General, who superseded the Monmouth County Prosecutor s Office to litigate the constitutional question raised by the trial court's decision, sought leave to appeal, which the Appellate Division denied. On appeal to the New Jersey Supreme Court, the Attorney General did not dispute that telephone billing records were entitled to protection under the State Constitution. He argued instead that a grand jury subpoena, based on a relevancy standard rather than probable cause, was sufficient to safeguard the privacy rights at stake here. "Using a cell phone to determine the location of its owner can be far more revealing than acquiring toll billing, bank, or Internet subscriber records. It is akin to using a tracking device and can function as a substitute for 24/7 surveillance without police having to confront the limits of their resources. It also involves a degree of intrusion that a reasonable person would not anticipate." Here, the Court affirmed the trial court's grant of the motion to quash, noting that the State could apply for a court order to obtain defendant's cell phone records consistent with the Court's discussion of protected privacy interests in this opinion. View "New Jersey v. Lunsford" on Justia Law

Hunter and Sullivan were indicted on murder, weapons, and gang-related charges stemming from a drive-by shooting. Each served a subpoena duces tecum on Facebook, Instagram, or Twitter, seeking both public and private content from user accounts of the murder victim and a witness. The companies moved to quash the subpoenas, citing the federal Stored Communications Act, 18 U.S.C. 2702(a), which provides that electronic communication services “shall not knowingly divulge” the contents of a user communication to anyone, with limited exceptions). Defendants responded that the requested information is necessary to properly defend against the pending charges, and that any statutory privacy protections afforded a social media user must yield to a criminal defendant’s constitutional rights to due process, presentation of a complete defense, and effective assistance of counsel. The trial court denied the motions to quash and ordered the companies to produce responsive material for in camera review. The court of appeal directed the trial court to issue an order quashing the subpoenas. View "Facebook, Inc. v. Super. Ct." on Justia Law

The government obtained a warrant to search the email account of Fattah, a U.S. Congressman, who is the subject of an investigation involving federal criminal laws relating to fraud, extortion, and bribery. Fattah alleged that he used the “gmail” account for both personal matters and official business relating to his congressional duties and challenged the unexecuted search warrant on Speech or Debate Clause grounds. The court declined to invalidate the unexecuted search warrant. The Third Circuit dismissed for lack of jurisdiction. Because an unexecuted search warrant is not separate from the merits of the case and is reviewable on appeal, if a defendant is convicted, it does not qualify for review under the collateral order doctrine. View "In the Matter of the Search of Elec Commc'ns" on Justia Law

Elonis used the Web site Facebook to post lyrics containing graphically violent language and imagery concerning his wife, co-workers, children, and law enforcement, interspersed with disclaimers that the lyrics were “fictitious” and that Elonis was exercising his First Amendment rights. His boss fired him. His wife obtained an order of protection. Elonis’s former employer contacted the FBI. The agency monitored Elonis’s Facebook activity and charged him under 18 U.S.C. 875(c), which makes it a crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.” Elonis requested a jury instruction that the government was required to prove that he intended to communicate a “true threat.” The district court told the jury that Elonis could be found guilty if a reasonable person would foresee that his statements would be interpreted as a threat. Elonis was convicted. The Third Circuit affirmed. The Supreme Court reversed and remanded. The instruction, requiring only negligence with respect to communication of a threat, is not sufficient to support conviction under Section 875(c). Mere omission from a criminal enactment of any mention of criminal intent does not eliminate that requirement. Wrongdoing must be conscious to be criminal. This does not mean that a defendant must know that his conduct is illegal, but a defendant must have knowledge of “the facts that make his conduct fit the definition of the offense.” In some cases, a general requirement that a defendant act knowingly is sufficient, but where such a requirement would not protect an innocent actor, the statute must be read to require specific intent. The crucial element separating legal innocence from wrongful conduct under Section 875(c) is the threatening nature of the communication, so the mental state requirement must apply to the fact that the communication contains a threat. The requirement is satisfied if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat. The Court did not address whether a mental state of recklessness would also suffice or First Amendment issues. View "Elonis v. United States" on Justia Law

U.S. Congresswoman Miller received a letter threatening to kill her family if she did not send money. The letter was in distinctive handwriting, bearing a Pontiac, Michigan return address. FBI Agent Herrera interviewed a woman (Hiller) at the address. She denied writing the letter, which, she believed was sent by her neighbor, Harris. Hiller provided Herrera with letters that Harris had written and hand-delivered to her a year earlier. After Hiller to Harris to stop writing to her, Orsette, the area’s postal carrier, gave Hiller a threatening letter that was addressed to Senator Stabenow and bore Hiller’s return address. Hiller received several letters that she did not write but that listed her return address. The letters had similar distinctive and nearly illegible writing. She also received unsolicited magazine subscriptions. Orsette was familiar with Harris, who often handed Orsette magazine subscription cards bearing another person’s name. Harris denied writing the letters. Herrera obtained a warrant and recovered envelopes, stamps, and a notepad matching those used in the Miller letter. No fingerprints or DNA were found on the Miller letter, but other letters bore salivaand were written in the same handwriting as the Miller letter. A third such letter contained Harris’ fingerprint. Harris was convicted of mailing threatening communications, 18 U.S.C. 876(c). The Sixth Circuit affirmed, rejecting challenges to testimony from witnesses that identified Harris as the author of the letter based on familiarity with his handwriting. View "United States v. Harris" on Justia Law

Wright-Darrisaw called the White House Comments Line and, after statements characterized as “foul,” and “irrational,” stated “I’m going to f**k and kill Obama.” A telephone operator transferred her to the Secret Service. The call was not recorded. The Secret Service subpoenaed phone records and determined that Wright-Darrisaw had called the White House Comments Line several times. Wright-Darrisaw admitted to calling to voice her displeasure with child custody laws, but denied making any threats. Wright-Darrisaw was convicted of threatening to kill the President, 18 U.S.C. 871(a), and of making a false statement, 18 U.S.C. 1001(a)(2),and was sentenced to 33 months in prison. The district court declined to apply a four-level decrease in the offense level under U.S.S.G. 2A6.1(b)(6), finding that the threat involved deliberation, and applied a three-level increase under U.S.S.G. 3A1.2(a) because Wright-Darrisaw was motivated by the victim’s status as a government official. The Second Circuit deferred consideration of the sufficiency of the evidence that the communication constituted a “true threat,” pending the Supreme Court’s decision in United States v. Elonis, but remanded for reconsideration of the sentence in light of a Second Circuit holding that “deliberation” under U.S.S.G. 2A6.1(b)(6) is deliberation related to the communication of the threat itself. View "United States v. Wright-Darrisaw" on Justia Law