Justia Communications Law Opinion Summaries

In 2021, Florida and Texas enacted statutes regulating large social-media companies and other internet platforms. The laws curtailed the platforms' ability to engage in content moderation and required them to provide reasons to a user if they removed or altered her posts. NetChoice LLC, a trade association whose members include Facebook and YouTube, brought First Amendment challenges against the two laws. District courts in both states entered preliminary injunctions.The Eleventh Circuit upheld the injunction of Florida’s law, holding that the state's restrictions on content moderation trigger First Amendment scrutiny. The court concluded that the content-moderation provisions are unlikely to survive heightened scrutiny. The Fifth Circuit, however, disagreed and reversed the preliminary injunction of the Texas law. The court held that the platforms’ content-moderation activities are “not speech” at all, and so do not implicate the First Amendment.The Supreme Court of the United States vacated the judgments and remanded the cases, stating that neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to Florida and Texas laws regulating large internet platforms. The Court held that the laws interfere with protected speech, as they prevent the platforms from compiling the third-party speech they want in the way they want, thus producing their own distinctive compilations of expression. The Court also held that Texas's asserted interest in correcting the mix of viewpoints that major platforms present is not valid under the First Amendment. View "Moody v. NetChoice, LLC" on Justia Law

In a case involving a city manager's personal social media account, a citizen sued the city manager under 42 U.S.C. §1983, alleging that his First Amendment rights were violated when the manager deleted his comments and blocked him from commenting further. The city manager argued that he operated his social media account in his private capacity, thus not constituting state action required for §1983 liability. The District Court and the Sixth Circuit affirmed this view, determining that the city manager's social media conduct did not constitute state action.The Supreme Court of the United States vacated the Sixth Circuit's decision, remanding the case for further proceedings. The court held that a public official's social media activity constitutes state action under §1983 only if the official both (1) possessed actual authority to speak on the State's behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts. The court emphasized that the first prong is grounded in the requirement that the conduct causing the deprivation of a federal right be fairly attributable to the State. The second prong requires that the official must purport to use that authority. The court noted that the nature of the technology matters to the state-action analysis and that the state-action doctrine requires a fact-intensive inquiry. View "Lindke v. Freed" 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

VIP makes a chewable dog toy that looks like a Jack Daniel’s whiskey bottle; the words “Jack Daniel’s” become “Bad Spaniels.” “Old No. 7 Brand Tennessee Sour Mash Whiskey” turns into “The Old No. 2 On Your Tennessee Carpet.” Jack Daniel’s demanded that VIP stop selling the toy.VIP sought a declaratory judgment that Bad Spaniels neither infringed nor diluted Jack Daniel’s trademarks. Jack Daniel’s counterclaimed. The Lanham Act defines a trademark by its primary function: identifying a product’s source and distinguishing that source from others. A typical infringement case examines whether the defendant’s use of a mark is “likely to cause confusion, or to cause mistake, or to deceive,” 15 U.S.C. 1114(1)(A), 1125(a)(1)(A). A typical dilution case considers whether the defendant “harm[ed] the reputation” of a trademark. VIP cited the “Rogers test,” which requires dismissal of an infringement claim when “expressive works” are involved unless the complainant can show either that the challenged use of a mark “has no artistic relevance to the underlying work” or that it “explicitly misleads as to the source or the content of the work.” The Ninth Circuit ruled in favor of VIP.The Supreme Court vacated. When an alleged infringer uses a trademark as a designation of source for the infringer’s own goods, the Rogers test does not apply. Consumer confusion about source is most likely to arise when someone uses another’s trademark as a trademark. Bad Spaniels was not automatically entitled to Rogers’ protection because it “communicate[d] a humorous message.” VIP used the Bad Spaniels trademark and trade dress as source identifiers. Although VIP’s effort to parody Jack Daniel’s does not justify the application of the Rogers test, it may make a difference in the standard trademark analysis on remand. View "Jack Daniel's™ Properties, Inc. v. VIP Products LLC" on Justia Law

In 1984, Goldsmith, a portrait artist, granted Vanity Fair a one-time license to use a Prince photograph to illustrate a story about the musician. Vanity Fair hired Andy Warhol, who made a silkscreen using Goldsmith’s photo. Vanity Fair published the resulting image, crediting Goldsmith for the “source photograph,” and paying her $400. Warhol used Goldsmith’s photograph to derive 15 additional works. In 2016, the Andy Warhol Foundation (AWF) licensed one of those works, “Orange Prince,” to Condé Nast to illustrate a magazine story about Prince. AWF received $10,000. Goldsmith received nothing. When Goldsmith asserted copyright infringement, AWF sued her. The district court granted AWF summary judgment on its assertion of “fair use,” 17 U.S.C. 107. The Second Circuit reversed.The Supreme Court affirmed, agreeing that the first fair use factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” weighs against AWF’s commercial licensing to Condé Nast. Both the 1984 and the 2016 publications are portraits of Prince used in magazines to illustrate stories about Prince; the “environment[s]” are not “distinct and different.” The 2016 use also is of a commercial nature. Orange Prince reasonably can be perceived to portray Prince as iconic, whereas Goldsmith’s portrayal is photorealistic but the purpose of that use is still to illustrate a magazine about Prince. The degree of difference is not enough for the first factor to favor AWF. To hold otherwise would potentially authorize a range of commercial copying of photographs, to be used for purposes that are substantially the same as those of the originals. AWF offers no independent justification for copying the photograph. View "Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith" 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

Kennedy lost his job as a high school football coach after he knelt at midfield after games to offer a quiet personal prayer. The Ninth Circuit affirmed the summary judgment rejection of Kennedy’s claims against the school district. The Supreme Court reversed. The Constitution neither mandates nor permits the government to suppress such religious expression. The district acted on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech.A plaintiff may demonstrate a free exercise violation by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable,” triggering strict scrutiny. Kennedy seeks to engage in a sincerely motivated religious exercise that does not involve students; the district’s policies were neither neutral nor generally applicable. The district sought to restrict Kennedy’s actions at least in part because of their religious character.Kennedy established a Free Speech Clause violation. When an employee “speaks as a citizen addressing a matter of public concern,” courts should engage in “a delicate balancing of the competing interests surrounding the speech and its consequences.” Kennedy was not engaged in speech “ordinarily within the scope” of his coaching duties. His prayers occurred during the postgame period when coaches were free to attend to personal matters and students were engaged in other activities.In place of the “Lemon” and “endorsement” tests, courts should look “to historical practices and understandings.” A rule that the only acceptable government role models for students are those who eschew any visible religious expression would undermine a long constitutional tradition of tolerating diverse expressive activities. View "Kennedy v. Bremerton School District" on Justia Law

Boston’s City Hall Plaza has three flagpoles; one flies the American flag and another the state flag. The city’s flag usually flies from the third pole but groups may hold ceremonies on the plaza during which participants may hoist a flag of their choosing on the third pole. Over 12 years, Boston approved the raising of about 50 unique flags for 284 such ceremonies, most were other countries’ flags, but some were associated with groups or causes. In 2017, Camp Constitution asked to hold an event on the plaza to celebrate the civic and social contributions of the Christian community and to raise the “Christian flag.” Worried that flying a religious flag could violate the Establishment Clause, the city approved the event but told the group it could not raise its flag. The district court and First Circuit upheld that decision.The Supreme Court reversed. Boston’s flag-raising program does not express government speech so Boston’s refusal to let Camp Constitution fly its flag violated the Free Speech Clause. Employing a “holistic inquiry,” the Court noted that the history of flag flying, particularly at the seat of government, supports Boston, but Boston did not shape or control the flags’ content and meaning and never intended to convey the messages on the flags as its own. The application process did not involve seeing flags before plaza events. The city’s practice was to approve flag raisings without exception. When the government does not speak for itself, it may not exclude private speech based on “religious viewpoint”; doing so “constitutes impermissible viewpoint discrimination.” View "Shurtleff v. Boston" on Justia Law