Justia Communications Law Opinion Summaries

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In consolidated actions, the Supreme Court of Ohio held that an offense-and-incident report, which initiates a police investigation and is a public record under Ohio’s Public Records Act, R.C. 149.43, is not limited to the form that police officers fill out in order to report the incident but also includes certain contemporaneous reports created by the investigating officers that document the officers’ observations and the statements of witnesses at the scene. The court ordered Chillicothe to disclose a limited number “supplement narratives” that the city had withheld when Myers had requested the public-record incident reports. The court concluded that other supplement narratives constitute confidential law-enforcement investigatory records, “investigatory work product,” under R.C. 149.43(A)(2)(c). The most important factor is timing; the initial observations by officers and the initial witness statements taken at the physical location close to the time that the incident occurred constitute incident information that may not be regarded as specific investigatory work product, even when the information has not been incorporated into the incident-report form. View "Myers v. Meyers" on Justia Law

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The Supreme Court held that the public records law's general prohibition on pre-release judicial review of decisions to provide access to public records barred the claims brought by Wisconsin Manufacturers and Commerce and two other trade associations (WMC) seeking to stop the release of certain records.After the Milwaukee Journal Sentinel made public records requests to the Department of Health Services (DHS) for documents related to the COVID-19 pandemic WMC learned that DHS planned to respond by releasing a list of all Wisconsin businesses with more than twenty-five employees that have had at least two employees test positive for COVID-19 or that have had close case contacts. WMC brought this action seeking declaratory and injunctive relief to stop the release. The circuit court granted a temporary injunction. The court of appeals reversed. The Supreme Court affirmed, holding that WMC's complaint failed to state a claim upon which relief may be granted because its claim was barred by Wis. Stat. 19.356(1). View "Wisconsin Manufacturers & Commerce v. Evers" on Justia Law

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Petitioner challenged the Federal Communication Commission’s (“FCC”) rate cap on the provision of tandem switch services. To reduce the incentives for regulatory arbitrage and to encourage companies to transition to lower-cost Internet Protocol technologies, the FCC set a transitional tariffed rate cap of $0.001 per minute for tandem switch services. Inteliquent argued the Commission: (1) ignored its evidence supporting a rate cap of $0.0017 per minute, (2) impermissibly delegated its rate cap decision to USTelecom, a trade association, and/or (3) set the rate cap below Inteliquent’s or other providers’ costs.   The DC Circuit denied Petitioner’s petition for review holding that the FCC Order setting the rate cap for tandem switching services at $0.001 per minute was not arbitrary and capricious. The court reasoned that incentive-based regulation need not accommodate the high-cost practices of every regulated firm, particularly when exigent circumstances, in this instance widespread arbitrage, provide the impetus for the agency’s order. The court explained that here Inteliquent’s submission did not show the Commission’s rate cap was below cost for itself or for any other provider. The court concluded that Inteliquent’s petition rests upon weak data and an outdated approach to price regulation. View "Inteliquent, Inc. v. FCC" on Justia Law

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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

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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

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The Supreme Court held that, by and large, Hawai'i's public information law - the Uniform Information Practices Act (UIPA) - required the state Attorney General (AG) to release a report it issued in 2016 documenting deceptive practices, incompetence, and workplace bullying in the Office of the Auditor.After the state AG compiled a record of its investigation a reporter with the Honolulu Civil Beat, an investigative news organization, asked for the investigative reports pursuant to UIPA. The circuit court granted summary judgment in favor of the state AG, concluding that the report was exempt from the UIPA. The Supreme Court vacated the circuit court's final judgment, holding that, regarding the vast majority of the report, the UIPA's presumption favoring disclosure was not overcome. View "Honolulu Civil Beat Inc. v. Department of the Attorney General" on Justia Law

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The Supreme Court affirmed the order of the Wyoming Public Service Commission (PSC) administering the Wyoming Universal Service Fund (WUSF) for the 2020-2021 fiscal year, holding that the PSC's order was lawful.It issue was the interplay between the Federal Universal Service Fund (FUSF) and the WUSF. The PSC's order adopted a methodology for calculating WSFU disbursements that treated a portion of the 2019 support each Wyoming telecommunications company received from the federal Alternative Connect America Cost Model programs as contributions from the FUSF. Union Telephone Company filed a petition for review, asserting that the order rejected existing law and materially prejudiced Union. The Supreme Court affirmed, holding (1) collateral estoppel did not bar the PSC from adopting a WUSF calculation methodology that considered the A-CAM funds to be FUSF contributions; (2) the PSC's order was lawful; and (3) Union's remaining claims of error were unavailing. View "Union Telephone Co. v. Wyoming Public Service Commission" on Justia Law

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Austin Texas specially regulates signs that advertise things that are not located on the same premises as the sign and signs that direct people to offsite locations (off-premises signs). Its sign code prohibited the construction of new off-premises signs. Grandfathered off-premises signs could remain in their existing locations but could not be altered in ways that increased their nonconformity. On-premises signs were not similarly restricted. Advertisers, denied permits to digitize some billboards, argued that the prohibition against digitizing off-premises signs, but not on-premises signs, violated the First Amendment. The district court upheld the code. The Fifth Circuit reversed, finding the distinction "facially content-based" because an official had to read a sign’s message to determine whether it was off-premises.The Supreme Court reversed, rejecting the view that any examination of speech or expression inherently triggers heightened First Amendment concern. Restrictions on speech may require some evaluation of the speech and nonetheless remain content-neutral. The on-/off-premises distinction is facially content-neutral; it does not single out any topic or subject matter for differential treatment. A sign’s message matters only to the extent that it informs the relative location. The on-/off-premises distinction is more like ordinary time, place, or manner restrictions, which do not trigger strict scrutiny. Content-based regulations are those that discriminate based on the topic discussed or the idea or message expressed. The Court remanded, noting that evidence that an impermissible purpose or justification underpins a facially content-neutral restriction may mean that the restriction is nevertheless content-based and, to survive intermediate scrutiny, a restriction on speech or expression must be “narrowly tailored to serve a significant governmental interest.” View "City of Austin v. Reagan National Advertising of Austin, LLC" on Justia Law

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The Supreme Court affirmed in part and dismissed in part the orders of the circuit court denying Appellant's motion for an order to waive record fees and Appellant's motion to be determined the prevailing party in a lawsuit brought pursuant to the Freedom of Information Act (FOIA), holding that there was no error or abuse of discretion.One appeal in this case related to Appellant's efforts to be declared a prevailing party in his FOIA action against the University of Arkansas, and the second was an order denying his motion to waive record fees. The circuit court dismissed the FOIA claim with prejudice because the parties had negotiated a settlement as to that claim. In denying the motion at issue, the circuit court found it to be improper and untimely. The Supreme Court (1) dismissed Appellant's appeal as to his motion for an order to waive fees as not final and appealable; and (2) affirmed the order of the circuit court denying the motion for determination of prevailing party, holding that the circuit court based its decision on independent and alternative grounds, and Appellant failed to challenge them both. View "Steinbuch v. University of Arkansas" on Justia Law

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The Supreme Court reversed the decision of the court of appeals apportioning to Texas all of Sirius XM Radio's receipts from Texas subscribers, holding that Sirius's monthly subscription fees from Texas users were not receipts from a "service performed in this state."To calculate the franchise tax it owes to the state of Texas, Sirius must first calculate its receipts from each service performed in the state. See Tex. Tax Code 171.103(a). Before the Supreme Court, Sirius argued that the service it performs for its Texas subscribers is the production of radio shows and the transmission of a radio signal, almost all of which takes place outside of the state. The Supreme Court agreed and reversed the court of appeals' holding that the service performed by Sirius for Texas subscribers was unscrambling the radio signal. The Supreme Court reversed, holding (1) Sirius had little personnel or equipment in Texas that performs the radio production and transmission services for which its customers pay monthly subscription fees; and (2) therefore, the court of appeals erred in apportioning to Texas all of Sirius's receipts from Texas subscribers. View "Sirius XM Radio, Inc. v. Hegar" on Justia Law