Justia Communications Law Opinion Summaries

The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) regulates pro-life centers that offer pregnancy-related services. Licensed clinics must notify women that California provides free or low-cost services, including abortions, and give them a phone number. The stated purpose is to ensure that state residents know their rights and what services are available. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services. Its stated purpose is to ensure that pregnant women know when they are receiving care from licensed professionals. In a case under the First Amendment, the Ninth Circuit affirmed the denial of a preliminary injunction.The Supreme Court reversed, holding that the licensed notice requirement likely violates the First Amendment. Content-based laws “are presumptively unconstitutional" and may be justified only if narrowly tailored to serve compelling state interests. The notice is a content-based regulation, requiring a particular message. Speech is not unprotected merely because it is uttered by professionals. The notice is not limited to “purely factual and uncontroversial information about" services. Nor is it a regulation of professional conduct that incidentally burdens speech; it applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought. Other facilities, including general clinics providing the same services, are not subject to the requirement. If states could choose the protection that speech receives simply by requiring a license, they would have a powerful tool to impose “invidious discrimination of disfavored subjects.” Assuming that California’s interest in providing low-income women with information about state-sponsored service is substantial, the licensed notice is not sufficiently drawn to promote it but is “wildly underinclusive,” applying only to clinics that have a “primary purpose” of “providing family planning or pregnancy-related services” while excluding other types clinics that also serve low-income women and could educate them about the state’s services. California could also inform the women about services “without burdening a speaker with unwanted speech,” most obviously through a public-information campaign.The unlicensed notice also unduly burdens protected speech. A disclosure requirement cannot be “unjustified or unduly burdensome,” must remedy a harm that is “potentially real not purely hypothetical,” and can extend “no broader than reasonably necessary.” California has not demonstrated any justification that is more than “purely hypothetical.” View "National Institute of Family and Life Advocates v. Becerra" on Justia Law

When a phone connects to a cell site, it generates time-stamped cell-site location information (CSLI) that is stored by wireless carriers for business purposes. The FBI identified the cell phone numbers of robbery suspects. Prosecutors obtained court orders to get the suspects’ CSLI under the Stored Communications Act, which requires “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation,” 18 U.S.C. 2703(d), rather than a showing of probable cause. With CSLI for Carpenter’s phone, the government cataloged Carpenter’s movements over 127 days, showing that Carpenter’s phone was near four robbery locations at the time those robberies occurred. After denial of his motion to suppress, Carpenter was convicted. The Sixth Circuit affirmed. The Supreme Court reversed, holding that the acquisition of Carpenter’s cell-site records was a Fourth Amendment search. The Fourth Amendment protects expectations of privacy “that society is prepared to recognize as reasonable” so that official intrusion generally qualifies as a search and requires a warrant supported by probable cause. Historical cell-site records give the government near-perfect surveillance, allow it to travel back in time to retrace a person’s whereabouts. Rejecting an argument that the third-party doctrine governed these “business records,” the Court noted the “world of difference between the limited types of personal information” addressed in precedent and the “exhaustive chronicle of location information casually collected by wireless carriers.” CSLI is not truly “shared” because cell phones are an indispensable, pervasive part of daily life and they log CSLI without any affirmative act by the user. The Court noted that its decision is narrow and does not address conventional surveillance tools, such as security cameras, other business records that might reveal location information, or collection techniques involving foreign affairs or national security. View "Carpenter v. United States" on Justia Law

Minnesota law prohibits wearing a “political badge, political button, or other political insignia” inside a polling place on Election Day, Minn. Stat. 211B.11(1), including clothing and accessories with political insignia. Election judges are authorized to decide whether a particular item is banned. Days before the 2010 election, plaintiffs challenged the ban. In response, the state distributed guidance with specific examples of prohibited apparel: items displaying the name of a political party or the name of a candidate, items supporting or opposing a ballot question, “[i]ssue oriented material designed to influence or impact voting,” and “[m]aterial promoting a group with recognizable political views.” Cilek allegedly was turned away from the polls for wearing a “Please I.D. Me” button, a “Don’t Tread on Me” T-shirt, and a Tea Party Patriots logo. The Supreme Court reversed the Eighth Circuit’s rejection of the constitutional challenges. Minnesota’s political apparel ban violates the First Amendment’s Free Speech Clause. Because the ban applies only in a “nonpublic forum,” its content-based restrictions would be constitutional if “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view,” The statute makes no distinction based on the speaker’s political persuasion and serves a permissible objective: to set aside polling places as “an island of calm.” The state may reasonably decide that the interior of the polling place should reflect the distinction between voting and campaigning. However, the “unmoored use of the term “political” in the Minnesota law, combined with haphazard interpretations" render the law unconstitutional for lack of narrow tailoring to serve that objective. Its indeterminate prohibitions present “[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.” An election judge’s own politics may shape his views on what is “political.” View "Minnesota Voters Alliance v. Mansky" on Justia Law

In 2013, federal agents obtained an 18 U.S.C. 2703 warrant requiring Microsoft to disclose all e-mails and other information associated with a customer's account that was believed to be involved in illegal drug trafficking. Microsoft determined that the account’s e-mail contents were all stored in Microsoft’s Dublin, Ireland datacenter and moved, unsuccessfully, to quash the warrant with respect to that information. The court held Microsoft in civil contempt. The Second Circuit reversed, holding that requiring Microsoft to disclose the electronic communications in question would be an unauthorized extraterritorial application of section 2703. In March 2018, Congress enacted and the President signed the Clarifying Lawful Overseas Use of Data Act (CLOUD Act), Pub. L. 115–141, amending the Stored Communications Act, 18 U.S.C. 2701, to add: “A [service provider] shall comply with the obligations of this chapter to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider’s possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States.” The Supreme Court vacated, finding the case moot. No live dispute remains between the parties over the issue with respect to which certiorari was granted; a new warrant replaced the original warrant. View "United States v. Microsoft Corp." on Justia Law

The rock group “The Slants,” chose that name to dilute the term’s denigrating force as a derogatory term for Asians. The Patent and Trademark Office (PTO) denied an application for registration of the name under 15 U.S.C. 1052(a), which prohibits the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” The Supreme Court affirmed the Federal Circuit in finding the clause unconstitutional. The Court first rejected an argument that the clause applies only to natural or juristic persons. The Court then held that the clause is subject to the Free Speech Clause, which does not regulate government speech. Trademarks are private, not government speech. "If trademarks become government speech when they are registered, the Federal Government is babbling prodigiously and incoherently.” The disparagement clause denies registration to any mark that is offensive to a substantial percentage of the members of any group. That is viewpoint discrimination. The “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” The disparagement clause cannot withstand even “relaxed” review. It does not serve a “substantial interest,” nor is it “narrowly drawn.” View "Matal v. Tam" on Justia Law

North Carolina law made it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” N.C. Gen. Stat. 14–202.5(a), (e). The state has prosecuted over 1,000 people under that law. Petitioner was indicted after posting a statement on his personal Facebook profile about a positive traffic court experience. State courts upheld the law. The Supreme Court reversed. The statute impermissibly restricts lawful speech in violation of the First Amendment. Today, one of the most important places to exchange views is cyberspace, particularly social media. Even if the statute is content-neutral and subject to intermediate scrutiny, the provision is not “narrowly tailored to serve a significant governmental interest.” While social media will be exploited by criminals and sexual abuse of a child is a most serious crime, the assertion of a valid governmental interest “cannot, in every context, be insulated from all constitutional protections.” The statute “enacts a prohibition unprecedented in the scope of First Amendment speech it burdens…. With one broad stroke, North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” The state did not establish that this sweeping law is necessary to keep convicted sex offenders away from vulnerable victims. View "Packingham v. North Carolina" on Justia Law