Justia Communications Law Opinion Summaries

The 1996 E-Rate program (Schools and Libraries Universal Service Support program, Telecommunications Act 110 Stat. 56), is intended to keep telecommunications services affordable for schools and libraries in rural and economically disadvantaged areas. The program subsidizes services and requires providers to charge these customers rates less than or equal to the lowest rates they charge to similarly situated customers. Heath brought a qui tam action under the False Claims Act, 31 U.S.C. 3729, alleging that Wisconsin Bell charged schools and libraries more than was allowed under the program, causing the federal government to pay more than it should have. The district court granted Wisconsin Bell summary judgment.The Seventh Circuit reversed. While Heath’s briefing and evidence focused more on which party bore the burden of proving violations than on identifying specific violations in his voluminous exhibits and lengthy expert report, Heath identified enough specific evidence of discriminatory pricing to allow a reasonable jury to find that Wisconsin Bell, acting with the required scienter, charged specific schools and libraries more than it charged similarly situated customers. It is reasonable to infer that government funds were involved and that if the government knew of actual overcharges, it would not approve claims. View "Heath v. Wisconsin Bell, Inc." on Justia Law

A 2017 terrorist attack on an Istanbul nightclub, committed on behalf of ISIS, killed Alassaf and 38 others. Alassaf’s family sued Facebook, Twitter, and Google (which owns YouTube) under 18 U.S.C. 2333, which permits U.S. nationals who have been injured by an act of international terrorism to sue for damages. They alleged that the companies knowingly allowed ISIS and its supporters to use their platforms and “recommendation” algorithms for recruiting, fundraising, and spreading propaganda and have profited from the advertisements placed on ISIS content. The Ninth Circuit reversed the dismissal of the complaint.A unanimous Supreme Court reversed. The 2016 Justice Against Sponsors of Terrorism Act, section 2333(d)(2), imposes secondary civil liability on anyone “who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.” The Court concluded that it is not enough for a defendant to have given substantial assistance to a transcendent enterprise. A defendant must have knowingly provided substantial assistance in the commission of the actionable wrong—here, an act of international terrorism. The allegations do not show that the defendants gave ISIS such knowing and substantial assistance that they culpably participated in the attack. There are no allegations that the platforms were used to plan the attack; that the defendants gave ISIS special treatment; nor that the defendants carefully screened content before allowing users to upload it. The mere creation of media platforms is no more culpable than the creation of email, cell phones, or the internet generally.The allegations rest primarily on passive nonfeasance. The plaintiffs identify no duty that would require communication-providing services to terminate customers after discovering that the customers were using the service for illicit ends. The expansive scope of the claims would necessarily hold the defendants liable for aiding and abetting every ISIS terrorist act committed anywhere in the world. The Ninth Circuit improperly focused primarily on the value of the platforms to ISIS, rather than whether the defendants culpably associated themselves with the attack. View "Twitter, Inc. v. Taamneh" on Justia Law

In 2015, ISIS terrorists unleashed coordinated attacks across Paris, killing 130 victims, including Gonzalez, a 23-year-old U.S. citizen. Gonzalez’s family sued Google under 18 U.S.C. 2333(a), (d)(2). They alleged that Google was directly and secondarily liable for the terrorist attack that killed Gonzalez, citing the use of YouTube, which Google owns and operates, by ISIS and ISIS supporters.The Ninth Circuit affirmed the dismissal of the suit, finding most of the claims were barred by the Communications Decency Act of 1996, 47 U.S.C. 230(c)(1). The sole exceptions were claims based on allegations that Google approved ISIS videos for advertisements and then shared proceeds with ISIS through YouTube’s revenue-sharing system. The court held that these potential claims were not barred by section 230, but that the allegations nonetheless failed to state a viable claim. The complaint neither plausibly alleged that “Google reached an agreement with ISIS,” as required for conspiracy liability, nor that Google’s acts were “intended to intimidate or coerce a civilian population, or to influence or affect a government,” as required for a direct-liability claim.The Supreme Court vacated. The complaint. independent of section 230, states little if any claim for relief. The Court noted its contemporaneously-issued “Twitter” decision and held that the complaint fails to state a claim for aiding and abetting. The Court remanded the case for consideration in light of the Twitter decision. View "Gonzalez v. Google LLC" on Justia Law

DirecTV and Dish Network (“Defendants”) provide video services in part through the Internet. The City of Creve Coeur filed this class action in Missouri state court on behalf of local government authorities, seeking a declaratory judgment that Defendants are liable under the Video Services Providers Act (“VSPA”) and implementing local ordinances, plus injunctive relief, an accounting of unpaid fees, and damages. Defendants removed the action based on diversity jurisdiction and the Class Action Fairness Act (CAFA). After the state court entered an interlocutory order declaring that VSPA payments are fees, rather than taxes, DirecTV filed a second notice of removal, arguing this order established the required federal jurisdiction. The district court granted Creve Coeur’s motion to remand.   The Eleventh Circuit affirmed on different grounds. The court explained that the district court’s remand order plainly stated that the remand was based on comity principles as articulated in Levin, not on “state-tax based comity concerns.” Comity as a basis to remand was raised and fully argued in the first remand proceeding. Federal courts have long precluded two bites at this apple. Second, the Supreme Court in Levin emphatically stated that the century-old comity doctrine is not limited to the state-tax-interference concerns that later led Congress to enact the TIA. Third, the state court’s December 2020 Order addressed, preliminarily, only the VSPA fee-or-tax issue under state law. It did not address the broader considerations comity addresses. The state court order in no way overruled or undermined the basis for the district court’s first remand order. Therefore, DirecTV failed to establish the essential basis for a second removal. View "City of Creve Coeur v. DirecTV LLC" on Justia Law

YouTube, a video-sharing website, places “advertising restrictions” on certain videos to prevent the user who posted the video from realizing advertising revenues. Network administrators and individual subscribers can also elect to limit user access to YouTube videos using “Restricted Mode.” YouTube considers whether the content involves drugs, alcohol, sex, violence, tragedies, inappropriate language, and whether the content is "gratuitously incendiary, inflammatory, or demeaning towards an individual or group.” YouTube uses an “automated filtering algorithm.” Users whose videos have been restricted or demonetized may request human review. Prager has posted more than 250 YouTube videos and has been prohibited from monetizing over 50 of its videos. In some cases, other users have posted videos identical to Prager’s restricted videos; the copycat videos have not been restricted. Prager claims the restrictions are based on its political identity or viewpoints.After a district court dismissed its federal lawsuit, Prager sued in state court. The court of appeal affirmed the dismissal of the suit, citing immunity under the Communications Decency Act, 47 U.S.C. 230, for interactive computer service providers acting as “publishers or speakers” of content provided by others. The challenged conduct is the exercise of a publisher’s traditional editorial functions, The court rejected arguments that the defendants are themselves information content providers, that their terms of service and public pronouncements subjected them to liability notwithstanding the Act, and that the Act, in immunizing defendants from Prager’s state law claims, is unconstitutional. View "Prager University v. Google LLC" on Justia Law

In 2016, McLaughlin, the head of a business, was arrested based on an alleged domestic dispute with his former girlfriend, Olivia. In 2018, an Illinois court ordered all records in that case expunged, and the destruction of McLaughlin’s arrest records and photographs. McLaughlin sought an order of protection against Olivia. The terms of the parties’ subsequent settlement were incorporated in a judgment, which was sealed. Doe nonetheless posted multiple Twitter messages about McLaughlin’s arrest with McLaughlin’s mugshot, tagging McLaughlin’s business contacts and clients, and media outlets. Twitter suspended Doe’s accounts. The Illinois court issued a subpoena requiring the production of documents related to Doe’s Twitter accounts and issued “letters rogatory” to the San Francisco County Superior Court. Under the authority of that court, McLaughlin's subpoena was to be served on Twitter in San Francisco, requesting information personally identifying the account holders. In a motion to quash, Doe argued he had a First Amendment right to engage in anonymous speech and a right to privacy under the California Constitution. Doe sought attorney fees, (Code of Civil Procedure1987.2(c))The court of appeal affirmed orders in favor of McLaughlin. No sanctions were awarded. Doe failed to establish he prevailed on his motion to quash or that “the underlying action arises from [his] exercise of free speech rights on the Internet.” Doe presented no legally cognizable argument that McLaughlin failed to make a prima facie showing of breach of the settlement agreement. View "Doe v. McLaughlin" on Justia Law

Popa browsed the website of Harriet Carter Gifts, added an item to her cart, but left the website without making a purchase. She later discovered that, unbeknownst to her, Harriet Carter’s third-party marketing service, NaviStone, tracked her activities across the site. Popa sued both entities under Pennsylvania’s Wiretapping and Electronic Surveillance Control Act (WESCA), 18 Pa. C.S. 5701, which prohibits the interception of wire, electronic, or oral communications. The district court granted the defendants summary judgment, reasoning that NaviStone could not have “intercepted” Popa’s communications because it was a “party” to the electronic conversation. Alternatively, it ruled that if any interception occurred, it happened outside Pennsylvania, so the Act did not apply.The Third Circuit vacated. Under Pennsylvania law, there is no direct-party exception to WESCA liability, except for law enforcement under specific conditions. The defendants cannot avoid liability merely by showing that Popa directly communicated with NaviStone’s servers. NaviStone intercepted Popa’s communications at the point where it routed those communications to its own servers; that was at Popa’s browser, not where the signals were received at NaviStone’s servers. The court noted that the district court never addressed whether Harriet Carter posted a privacy policy and, if so, whether that policy sufficiently alerted Popa that her communications were being sent to a third-party company to support a consent defense. View "Popa v. Harriet Carter Gifts Inc." on Justia Law

Freed created a Facebook profile, limited to his “friends.” Eventually, he exceeded Facebook’s 5,000-friend limit on profiles and converted his profile to a “page,” which has unlimited “followers.” His page was public, anyone could “follow” it; for the page category, Freed chose “public figure.” Freed was appointed Port Huron’s city manager. He updated his Facebook page to reflect that title. In the “About” section, he described himself as “Daddy ... Husband ... and City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.” Freed listed the Port Huron website as his page’s website, the city’s general email as his page’s contact information, and the City Hall address as his page’s address. Freed shared photos of family events, visits to local community events, and posts about administrative directives he issued as city manager. When the Covid-19 pandemic hit, he posted policies he initiated for Port Huron and news articles on public-health measures and statistics. Lindke responded with criticism. Freed deleted those comments and eventually “blocked” Lindke from the page.Lindke sued Freed under 42 U.S.C 1983, arguing that Freed violated his First Amendment rights. The Sixth Circuit affirmed summary judgment in favor of Freed. Freed’s Facebook activity was not state action. The page neither derives from the duties of his office nor depends on his state authority. View "Lindke v. Freed" on Justia Law

Novak created “The City of Parma Police Department” Facebook account to exercise his “fundamental American right” of “[m]ocking our government officials.” He published posts “advertising” free abortions in a police van and a “Pedophile Reform event.” Some readers called the police station. Officers verified that the official page had not been hacked, then posted a notice on the Department’s page, confirming that it was the official account and warning that the fake page was “being investigated.” Novak copied that post onto his knockoff page. Officers asked Facebook to preserve all records related to the account and take down the page. Lieutenant Riley issued a press release and appeared on the nightly news. Novak deleted the page. The investigation continued. Officers got a search warrant for Facebook, discovered that Novak was the author, then obtained an arrest warrant and a search warrant based on an Ohio law that makes it illegal to use a computer to disrupt or impair police functions. Officers arrested Novak, searched his apartment, and seized his phone and laptop. He spent four days in jail before making bond.Indicted for disrupting police functions, Novak was acquitted. In Novak’s subsequent suit, 42 U.S.C. 1983, the Sixth Circuit affirmed summary judgment in favor of the defendants. The officers reasonably believed they were acting within the law. The officers could reasonably believe that some of Novak’s Facebook activity was not parody, not protected, and fair grounds for probable cause. View "Novak v. City of Parma, Ohio" on Justia Law

In 2017, Freydin, a Chicago lawyer, posed a question on Facebook: “Did Trump put Ukraine on the travel ban list?! We just cannot find a cleaning lady!” After receiving online criticism for the comment, Freydin doubled down. People angered by Freydin’s comments went to his law firm’s Facebook, Yelp, and Google pages and left reviews that expressed their negative views of Freydin. Various defendants made comments including: An “embarrassment and a disgrace to the US judicial system,” “unethical and derogatory,” “hypocrite,” “chauvinist,” “racist,” “no right to practice law,” “not professional,” “discriminates [against] other nationalities,” do not “waste your money.,” “Freydin is biased and unprofessional attorney,” “terrible experience,” “awful customer service,” “disrespect[],” and “unprofessional[ism].” None of the defendants had previously used Freydin’s legal services.The Seventh Circuit affirmed the dismissal of Freydin’s suit, which alleged libel per se, “false light,” tortious interference with contractual relationships, tortious interference with prospective business relationships, and civil conspiracy. None of the reviews contained statements that are actionable as libel per se under Illinois law; each was an expression of opinion that could not support a libel claim. Freyding did not link the civil conspiracy claims to an independently viable tort claim. View "Law Offices of David Freyd v. Chamara" on Justia Law