First Amendment – Page 3 – Attorney Evan Brown

April 17, 2013 First Amendment, Litigation

Company sued by university can continue emailing that it will not hire students

University of Illinois v. Micron Technology, Inc., No. 11-2288 (C.D.Ill, Order dated April 11, 2013)

The University of Illinois sued Micron for patent infringement. Micron sent an email to several professors that read in part:

Because Micron remains a defendant in a patent infringement lawsuit that [the University] filed against Micron in Federal court in Illinois on December 5, 2011, effective immediately, Micron will no longer recruit [University] students for open positions at any of Micron’s world-wide facilities.

The University asked the court for a preliminary injunction barring future harassing communications from Micron to any University employee. The court denied the motion, holding that:

the term “harassing” was vague and therefore the requested injunction would violate Rule 65(d)’s requirement that the injunction describe in reasonable detail the acts to be restrained
the prior restraint of speech would likely violate Micron’s First Amendment rights
the sought after preliminary injunction did not pertain to the injury alleged in the complaint

Though the court sided in favor of Micron on the question of whether to enter an injunction, it questioned the company’s motives. It found Micron’s decision to be “without tact,” and was “very concerned” that Micron was trying to interfere with the litigation. But there was not sufficient evidence for the court to draw such a conclusion.

November 17, 2012 First Amendment, Privacy

Court won’t ban Gawker from posting Hulk Hogan sex tape

Bollea v. Gawker Media, LLC, 2012 WL 5509624 (M.D.Fla. November 14, 2012)

A few years ago someone surreptitiously filmed Hulk Hogan cavorting in bed with a woman not his wife. Gawker got a copy through an anonymous source and posted a minute of excerpts on gawker.com. (I’m not linking to it but it’s easily accessible. Just be warned, it’s extremely NSFW.)

Hulk sued in federal court alleging various invasion of privacy claims. He sought a preliminary injunction against Gawker continuing to make the video available. The court denied the motion, finding such an injunction to be an unconstitutional prior restraint on Gawker’s free speech right.

Gawker conceded that Hulk had a right of privacy in the contents of the tape, but argued that Gawker’s First Amendment rights outweighed the privacy interest.

The court found that Hulk failed to satisfy his heavy burden to overcome the presumption that a preliminary injunction would be an unconstitutional prior restraint under the First Amendment. Hulk’s public persona, including the publicity he and his family derived from his reality show, his own book describing an affair he had during his marriage, prior reports by other parties of the existence and content of the tape, and Hulk’s own public discussion of issues relating to his marriage, sex life, and the tape all demonstrated, in the court’s view, that the tape was a subject of general interest and concern to the community.

And he failed to show that he would suffer irreparable harm from the publication. The court’s decision on this point was based in part on the fact that mere embarassment was not enough to satisfy the irreparable harm standard. Moreover, the court found this to be a case where the “cat is out of the bag,” so it was not apparent that a preliminary injunction would do anything to help.

May 22, 2012 Anonymity, Defamation, First Amendment

Does the constitution protect anonymity?

Yes, the constitution protects one’s right to speak anonymously, but only to a certain extent. The question of one’s First Amendment right to speak anonymously comes up pretty often in situations where a plaintiff seeks to unmask the identity of someone who is alleged to have committed an illegal act against the plaintiff online. Most often it is a plaintiff seeking to unmask an online critic in a defamation lawsuit.

internet anonymity

In 1995, the U.S. Supreme Court held in McIntyre v. Ohio Elections Commission that a state statute prohibiting the distribution of anonymous campaign literature was unconstitutional. The court said that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” 514 U.S., at 342.

One would be hard pressed to overstate the importance of anonymous speech. Three and a half decades before the McIntyre decision, the Supreme Court observed that “[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.” Talley v. California, 362 U.S. 60, 64 (1960). And “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

But free speech protection has its limits. A person does not have a First Amendment right to defame another. So when one party seeks to “de-anonymize” another using the court system, the judge must strike a balance between the plaintiff’s right to seek redress and the defendant’s interest (if any) in remaining anonymous.

Courts have come up with a variety of balancing tests. Though different courts have come up with different ways of conducting the analysis, the test always involves looking at the strength of the facts the plaintiff puts in his or her initial filing. The more likely it appears there is real defamation, for example, the less likely the anonymous speech will be protected. If the strength of those allegations gets beyond a certain tipping point, the risk of an anonymous free speech violation becomes outweighed by the need for the plaintiff to get relief for the unprotected, unlawful speech.

Evan Brown is a Chicago technology and intellectual property attorney, representing businesses and individuals in a variety of situations, including matters dealing with online anonymity and anonymous speech.

Photo credit: petter palinder under this license.

February 27, 2012 First Amendment

School district has to stop filtering web content

PFLAG v. Camdenton R–III School Dist., 2012 WL 510877 (W.D.Mo. Feb. 16, 2012)

Several website publishers that provide supportive resources directed at lesbian, gay, bisexual, and transgender (LGBT) youth filed a First Amendment lawsuit against a school district over the district’s use of internet filtering software. Plaintiffs asked the court for an injunction against the district’s alleged practice of preventing students’ access to websites that expressed a positive viewpoint toward LGBT individuals.

The court granted a preliminary injunction. It found that by using URL Blacklist software, the district (despite its assertions to the contrary) engaged in intentional viewpoint discrimination, in violation of the website publishers’ First Amendment rights. The URL Blacklist software — which relied in large part on dmoz.org — classified positive materials about LGBT issues within the software’s “sexuality” filter, and it put LGBT-negative materials under “religion,” which were not blocked.

It found that the plaintiffs had a fair chance of success on the merits of their First Amendment claims. The school district had claimed it was simply trying to comply with a federal law that required the blocking of content harmful to minors. But the court found that the chosen method of filtering was not narrowly tailored to meet that interest.

One may wonder whether Section 230 of the Communications Decency Act could have protected the school district in this lawsuit. After all, 47 U.S.C. 230(c)(2)(A) provides that:

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected. . . . (Emphasis added.)

Section 230 would probably not have been much help, because the plaintiffs were seeking injunctive relief, not money damages. An old case called Mainstream Loudoun v. Bd. of Trustees of Loudoun, 24 F. Supp. 2d 552 (E.D. Va. 1998) tells us that:

[Section] 230 provides immunity from actions for damages; it does not, however, immunize [a] defendant from an action for declaratory and injunctive relief. . . . If Congress had intended the statute to insulate Internet providers from both liability and declaratory and injunctive relief, it would have said so.

One could understand the undesirability of applying Section 230 to protect filtering of this sort even without the Mainstream Loudoun holding. If Section 230 completely immunized government-operated interactive computer service providers, allowing them to engage freely in viewpoint-based filtering, free speech would suffer in obvious ways. And it would be unfortunate to subject Section 230 to this kind of analysis, whereby it would face the severe risk of being unconstitutional as applied.

February 25, 2012 Computer Crime, First Amendment, Privacy

Video: This Week in Law Episode 150

Had a great time hosting This Week in Law Episode 150, which we recorded on February 24. (Thanks to Denise Howell for handing over the hosting reins while she was off for the week.) It was a really fun conversation with three very smart panelists — Mike Godwin, Greg Sergienko and Jonathan Frieden. We talked about copyright and free speech, encryption and the Fifth Amendment, and the state of internet privacy.

If you’re not a regular listener or viewer of This Week in Law, I hope you’ll add it to your media diet. I’m on just about every week (sometimes I’m even referred to as a co-host of the show). We record Fridays at 1pm Central (that’s 11am Pacific, 2pm Eastern). The live stream is at http://live.twit.tv and the page with all the past episodes and various subscription options is http://twit.tv/twil.

December 4, 2011 Defamation, First Amendment

Oregon media shield law did not protect blogger from having to reveal her sources

Obsidian Finance Group, LLC v. Cox, 2011 WL 5999334 (D.Or. November 30, 2011)

Plaintiff filed a defamation lawsuit against defendant, who self-identified as an “investigative blogger” and a member of the “media.” Defendant asked the court to protect her from having to turn over the identity of the sources she spoke with in connection with drafting the allegedly defamatory content. She claimed that she was covered under Oregon’s media shield law, which provides in relevant part that:

No person connected with, employed by or engaged in any medium of communication to the public shall be required by … a judicial officer … to disclose, by subpoena or otherwise … [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public[.]

The court gave two reasons for finding that defendant was not covered by the shield law. First, although defendant thought of herself as the “media,” the record failed to show that she was affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, according to the court, she was not entitled to the protections of the law in the first instance.

Second, even if defendant were otherwise entitled to those protections, another part of the statute specifically provides that “[t]he provisions of [the shield law] do not apply with respect to the content or source of allegedly defamatory information, in [a] civil action for defamation wherein the defendant asserts a defense based on the content or source of such information.” Because this case was a civil action for defamation, defendant could not rely on the media shield law.

November 9, 2011 First Amendment

Employee’s Facebook status update was protected by the First Amendment

Mattingly v. Milligan, 2011 WL 5184283 (E.D.Ark. November 1, 2011)

Plaintiff worked in the county clerk’s office. Her old boss, whom she had supported in the election, lost. Her new boss (the newly-elected county clerk) began cleaning house and laid off some of the staff. Plaintiff survived that round of cuts, but lamented those terminations in a Facebook status update. Empathetic comments from county residents ensued.

The new boss found out about the status update and the comments. So he fired plaintiff. She sued, alleging that the termination violated her right to free speech. The boss moved for summary judgment, but the court denied the motion, sending the case to trial.

Here is some of the relevant Facebook content:

Plaintiff’s status update: So this week not going so good bad stuff all around.

Friend’s comment: Will be praying. Speak over those bad things positively.

Plaintiff’s comment: I am trying my heart goes out to the ladies in my office that were told by letter they were no longer needed…. It’s sad.

* * *

Friend’s comment: He’s making a mistake, but I knew he would, too bad….

* * *

Friend’s comment: I can’t believe a letter would be the manner of delivering such a message! I’m with the others…they will find some thing better and tell them this is an opportunity and not a closed door. Prayers for you and friends.

* * *

Friend’s comment: How could you expect anything else from [defendant], he was an…well nevermind.

Courts addressing claims by public employees who contend that they have been discharged for exercising their right to free speech must employ a two-step inquiry: First, the court must determine whether the speech may be described as “speech on a matter of public concern.” If so, the second step involves balancing the employee’s right to free speech against the interests of the public employer.

In this case, the court found the speech to be on a matter of public concern because:

the statements were made in a “public domain”
those who saw the statements (many of whom were residents of the county) understood them to be about terminations in the clerk’s office
some of the comments contained criticism of the termination decision
six constituents of the new clerk called his office to complain
the press and media had covered the situation

As for the second step in the analysis, namely, balancing the employee’s right to free speech against the interests of the public employer, the court did not even undertake a balancing test, as there simply was no evidence that the status update and the comments disrupted the operations of the clerk’s office.

September 27, 2011 First Amendment

Online threats made by blogger were not protected by the First Amendment

State v. Turner, 2011 WL 4424754 (Conn. Super. September 6, 2011)

A Connecticut state court held that prosecuting a blogger for posting content online encouraging others to use violence did not violate the blogger’s First Amendment right to free speech.

Defendant was charged under a Connecticut statute prohibiting individuals from “inciting injury to persons or property.” Angry about a bill in the state General Assembly that would have removed financial oversight of Catholic parishes from priests and bishops, defendant posted the following statements to his blog:

[T]he Founding Fathers gave us the tools necessary to resolve [this] tyranny: The Second Amendment
[My organization] advocates Catholics in Connecticut take up arms and put down this tyranny by force. To that end, THIS WEDNESDAY NIGHT ON [my radio show], we will be releasing the home addresses of the Senator and Assemblyman who introduced bill 1098 as well as the home address of [a state ethics officer].
These beastly government officials should be made an example of as a warning to others in government: Obey the Constitution or die.
If any state attorney, police department or court thinks they’re going to get uppity with us about this, I suspect we have enough bullets to put them down too

Defendant challenged the application of the state statute as unconstitutional. The court disagreed, finding there to be “little dispute that the defendant’s message explicitly advocate[ed] using violence.” Moreover, the court found the threatened violence to be “imminent and likely.” The blog content said that the home address of the legislators and government officials would be released the following day.

Though the court did not find that a substantial number of persons would actually take up arms, it did note, in a nod to 9/11, “the devastation that religious fanaticism can produce in this country.” As such, there was a sufficient basis to say that defendant’s vitriolic language had a substantial capacity to propel action to kill or injure a person.

September 13, 2011 First Amendment, Right of Publicity

Video game maker scores First Amendment win in right of publicity case

Hart v. Electronic Arts, Inc. — F.Supp.2d —, 2011 WL 4005350 (D.N.J. September 9, 2011)

Former Rutgers quarterback Ryan Hart sued Electronic Arts (“EA”), the maker of the very popular video game NCAA Football, alleging misappropriation of his right of publicity under New Jersey law.

EA moved to dismiss. Treating the filing as one for summary judgment, the court granted the motion. It held that EA’s right to free expression under the First Amendment outweighed Hart’s right of publicity.

The court recognized the tension between Hart’s right of publicity and EA’s free speech interest in seeking to incorporate Hart’s characteristics and other information about him into the game. The resolution of this tension is an unsettled area of the law — and the court no doubt recognized this. So in what appears to be an effort to reduce the likelihood that the appellate court will reverse, the judge applied two different tests, finding that EA’s First Amendment interests prevailed under both of them.

Hart’s claims

Hart claimed that the game misappropriated his right of publicity by, among other things, giving a virtual player of the game Hart’s physical attributes (including appearance, height and weight), the same jersey number, the same home state, and with wearing a helmet visor and left wrist band. Hart claimed the virtual player shared other features with him as well, such as speed and agility rating, and passing accuracy and arm strength.

Transformative test

The court first applied the “transformative test” to balance the right of publicity and First Amendment interests. This test borrows heavily from copyright law’s fair use analysis, and looks to the extra elements in the subsequent work. A court will look at:

whether the celebrity likeness is one of the “raw materials” from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question

In this case, the game included numerous creative elements apart from Hart’s image, such as virtual stadiums, athletes, coaches, fans, sound effects, music and commentary. Moreover, and perhaps more importantly, the court emphasized that EA created a mechanism in the game “by which the virual player may be altered, as well as the multiple permutations available for each virtual player image.”

The Rogers test

The Rogers test borrows from the trademark context to aid a court in determining whether First Amendment interests will trump a right of publicity claim. In applying this test, a court will make two queries: (a) whether the challenged work is wholly unrelated to the underlying work (or person asserting the claim), and (b) whether the use of the plaintiff’s name is a disguised commercial advertisement. In this case, the court found that one could not reasonably argue that Hart’s image was wholly unrelated to the game (it was college football, after all). But the use of Hart’s image was not a “disguised commercial advertisement.” Instead, the use of his image was part of an expressive act by EA that might draw upon public familiarity with Hart’s college football career but did not explicitly state that he endorsed or contributed to the creation of the game.