Justia Communications Law Opinion Summaries

A ten-year-old girl named Nylah Anderson died after attempting the "Blackout Challenge," a dangerous activity promoted in a video recommended to her by TikTok's algorithm. Her mother, Tawainna Anderson, sued TikTok and ByteDance, Inc., alleging that the companies were aware of the challenge, allowed such videos to be posted, and promoted them to minors, including Nylah, through their algorithm.The United States District Court for the Eastern District of Pennsylvania dismissed the complaint, ruling that TikTok was immune under Section 230 of the Communications Decency Act (CDA), which protects interactive computer services from liability for content posted by third parties. The court found that TikTok's role in recommending the video fell under this immunity.The United States Court of Appeals for the Third Circuit reviewed the case and reversed the District Court's decision in part, vacated it in part, and remanded the case. The Third Circuit held that TikTok's algorithm, which curates and recommends videos, constitutes TikTok's own expressive activity, or first-party speech. Since Section 230 of the CDA only provides immunity for third-party content, it does not protect TikTok from liability for its own recommendations. Therefore, the court concluded that Anderson's claims were not barred by Section 230, allowing the lawsuit to proceed. View "Anderson v. TikTok Inc" on Justia Law

The case involves Robert Haggerty, a first-time offender who was indicted on three counts of receiving a visual depiction of a minor engaging in sexually explicit conduct, as well as one count of possessing such depictions. Haggerty admitted to communicating with undercover detectives posing as underage girls using online messaging platforms. A search of Haggerty's house and truck yielded two tablets containing a total of 97 still images and 9 videos of child sexual abuse material.The District Court applied multiple Guideline enhancements at sentencing, including a five-level enhancement under U.S.S.G. § 2G2.2(b)(7), which provides for a graduated enhancement scheme based on the number of "images" involved in a child-exploitation offense. Haggerty objected to the application of a five-level, number-of-images enhancement, arguing that the Guideline is unambiguous and does not include videos. The District Court overruled Haggerty’s objection and applied the five-level enhancement, calculating a total offense level of 32, which yielded an advisory Guideline range of 121 to 151 months in prison.The United States Court of Appeals for the Third Circuit held that "image," in the moving picture or video context, unambiguously means "frame." Deference to the Commentary’s 75-images rule is therefore unwarranted. Instead, the number of frames comprising a moving picture or video will determine the specific sentencing enhancement that a District Judge must apply. The court vacated the District Court’s sentencing order and remanded for resentencing in a manner consistent with its holding. View "United States v. Haggerty" on Justia Law

In the case before the United States Court of Appeals for the Third Circuit, the Borough of Longport and the Township of Irvington, two New Jersey municipalities, sued Netflix, Inc. and Hulu, LLC, two popular video streaming companies. The municipalities sought to enforce a provision of the New Jersey Cable Television Act (CTA), which requires cable television entities to pay franchise fees to municipalities. The CTA, however, does not provide an express right of action for municipalities to enforce its provisions. The court had to determine whether the CTA implies such a right. The court concluded that it does not and affirmed the judgment of the District Court. The court found that the CTA expressly vests all enforcement authority in the Board of Public Utilities (BPU) and that it would be inconsistent with the purposes of the CTA to infer the existence of a private right of action for municipalities. The court rejected the municipalities' argument that the New Jersey Constitution recognizes that municipalities have powers of "necessary or fair implication", stating that this cannot change the plain meaning of statutes or provide municipalities with statutory enforcement authority that would directly conflict with the statute. View "Borough of Longport v. Netflix Inc" on Justia Law

The Supreme Court of Pennsylvania amended Pennsylvania Rule of Professional Conduct 8.4 to prohibit harassment and discrimination in the practice of law. Greenberg, a Pennsylvania-licensed attorney, regularly gives continuing legal education presentations about First Amendment protections for offensive speech. His presentations involve quoting offensive language from judicial opinions and discussing arguably controversial topics. Greenberg fears his speech at these presentations will be interpreted as harassment or discrimination under the Rule and alleges the Rule violates the First Amendment and is unconstitutionally vague.The district court enjoined enforcement of the Rule. The Third Circuit reversed. Greenberg lacks standing to bring his challenge. Rule 8.4(g) does not arguably prohibit anything Greenberg plans to do. The Rule covers only knowing or intentional harassment or discrimination against a person. Nothing in Greenberg’s planned speeches comes close to meeting this standard. Rule 8.4(g) does not generally prohibit him from quoting offensive words or expressing controversial ideas, nor will the defendants impose discipline for his planned speech. Any chill to his speech is not objectively reasonable or cannot be fairly traced to the Rule. View "Greenberg v. Lehocky" on Justia Law

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 White Deer Township, a four-mile gap in Verizon’s wireless coverage overlays Interstate 80; Verizon customers are likely to experience “dropped calls,” “ineffective call attempts,” and “garbled audio.” The area is within Bald Eagle State Forest. A 2000 Pennsylvania moratorium prohibits the construction of cell towers on state forest land, so Verizon’s options were limited. After considering several sites and antenna configurations, Verizon decided to construct a 195-foot monopole topped with a four-foot antenna on privately owned land, comprising 1.9 acres and containing a cabin, shed, pavilion, and privy. Verizon leased 0.0597 acres, in the northeast corner of the property for the tower.The Township then permitted cell towers that complied with a minimum permissible lot size of one acre; cell towers had to be set back “from lot lines and structures a distance equal to the height of the facility, including towers and antennas, plus 10% of such height.” The Zoning Board denied Verizon’s variance applications, finding that Verizon’s alleged hardship was insufficient because it was “not a hardship connected to the capacity for the property to be used reasonably, but rather, the hardship [was connected to Verizon’s] capacity to use the property as desired.” The Third Circuit affirmed summary judgment for Verizon. The denial had “the effect of prohibiting the provision of personal wireless services,” in violation of the Telecommunications Act, 47 U.S.C. 332(c)(7)(B)(i)(II). View "Cellco Partnership v. White Deer Township Zoning Hearing Board" on Justia Law

Millennium's laboratory provides drug testing to healthcare professionals. Mauthe, a private practice MD, used Millennium’s services. On May 2, 2017, Millennium faxed all of its customers a single-page flyer promoting a free educational seminar to “highlight national trends in opioid misuse and abuse . . . and discuss the role of medication monitoring ... during the care of injured workers.” Although Millennium offered urine testing to detect opioids, the fax did not mention that service nor provide any pricing information, discounts, or product images. The seminar did not promote any goods or services for sale but described statistics on opioid abuse and the role of such drugs in chronic pain management. It explained that drug testing could help detect or monitor opioid abuse, and assessed the efficacy of several testing methods. The seminar did not identify providers or prices for any of the drug testing methods it reviewed. After the seminar, Millennium did not follow up with any registrants or attendees.Mauthe who has sued fax senders in more than 10 lawsuits since 2015, seeking damages under the Telephone Consumer Protection Act, 47 U.S.C. 227, (b)(3), filed a putative class action against Millennium. The Third Circuit affirmed the dismissal of the suit. Liability under the TCPA extends only to “unsolicited advertisement[s],” meaning communications that promote the sale of goods, services, or property. Under an objective standard, no reasonable recipient could construe the seminar fax as such an unsolicited advertisement. View "Robert W Mauthe MD PC v. Millennium Health LLC" on Justia Law

New Jersey permits candidates running in primary elections to include beside their name a slogan of up to six words to help distinguish them from others on the ballot but requires that candidates obtain consent from individuals or incorporated associations before naming them in their slogans. Candidates challenged this requirement after their desired slogans were rejected for failure to obtain consent. They argued that ballot slogans are, in effect, part of the campaign and that the consent requirement should be subject to traditional First Amendment scrutiny.The district court disagreed, holding that, though the ballot slogans had an expressive function, the consent requirement regulates the mechanics of the electoral process. The court applied the Anderson-Burdick test. The Third Circuit affirmed. The line separating core political speech from the mechanics of the electoral process “has proven difficult to ascertain.“ The court surveyed the election laws to which the Supreme Court and appellate courts have applied the Anderson-Burdick test, as opposed to a traditional First Amendment analysis, and derived criteria to help distinguish which test is applicable. New Jersey’s consent requirement is subject to Anderson-Burdick’s balancing test; because New Jersey’s interests in ensuring election integrity and preventing voter confusion outweigh the minimal burden imposed on candidates’ speech, the requirement passes that test. View "Mazo v. New Jersey Secretary of State" 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

In response to the Covid-19 pandemic, Port Authority, a municipal bus and light-rail operator, required its uniformed employees to wear face masks. Initially, Port Authority was unable to procure masks for all its employees, so they were required to provide their own. Some employees wore masks bearing political or social-protest messages. Port Authority has long prohibited its uniformed employees from wearing buttons “of a political or social protest nature.” Concerned that such masks would disrupt its workplace, Port Authority prohibited them in July 2020. When several employees wore masks expressing support for Black Lives Matter, Port Authority disciplined them. In September 2020, Port Authority imposed additional restrictions, confining employees to a narrow range of masks. The employees sued, alleging that Port Authority had violated their First Amendment rights.The district court entered a preliminary injunction rescinding discipline imposed under the July policy and preventing Port Authority from enforcing its policy against “Black Lives Matter” masks. The Third Circuit affirmed. The government may limit the speech of its employees more than it may limit the speech of the public, but those limits must still comport with the protections of the First Amendment. Port Authority bears the burden of showing that its policy is constitutional. It has not made that showing. View "Amalgamated Transit Union Local 85 v. Port Authority of Allegheny County" on Justia Law