first amendment – Page 2 – Attorney Evan Brown

December 13, 2018 Defamation, First Amendment, Trademarks

Restraining order entered against website that encouraged contacting children of plaintiff’s employees

Plaintiff sued defendant (who was an unhappy customer of plaintiff) under the Lanham Act (for trademark infringement) and for defamation. Defendant had registered a domain name using plaintiff’s company name and had set up a website that, among other things, he used to impersonate plaintiff’s employees and provide information about employees’ family members, some of whom were minors.

Plaintiff moved for a temporary restraining order and the court granted the motion.

The Website

The website was structured and designed in a way that made it appear as though it was affiliated with plaintiff. For example, it included a copyright notice identifying plaintiff as the owner. It also included allegedly false statements about plaintiff. For example, it included the following quotation, which was attributed to plaintiff’s CEO:

Well of course we engage in bad faith tactics like delaying and denying our policy holders [sic] valid claims. How do you think me [sic], my key executive officers, and my board members stay so damn rich. [sic]

The court found that plaintiff had shown a likelihood of success on the merits of its claims.

Lanham Act Claim

It found that defendant used plaintiff’s marks for the purpose of confusing the public by creating a website that looked as though it was a part of plaintiff’s business operations. This was evidenced by, for example, the inclusion of a copyright notice on the website.

Defamation

On the defamation claim, the court found that the nature of the statements about plaintiff, plaintiff’s assertion that they were false, and the allegation that the statements were posted on the internet sufficed to satisfy the first two elements of a defamation claim, namely, that they were false and defamatory statements pertaining to the plaintiff and were unprivileged publications to a third party. The allegations in the complaint were also sufficient to indicate that defendant “negligently disregarded the falsity of the statements.”

Furthermore, the statements on the website concerned the way that plaintiff processed its insurance claims, which related to the business of the company and the profession of plaintiff’s employees who handled the processing of claims. Therefore, the final element was also satisfied.

First Amendment Limitations

The court’s limitation in the TRO is interesting to note. To the extent that plaintiff sought injunctive relief directed at defendant’s speech encouraging others to contact the company and its employees with complaints about the business, whether at the workplace or at home, or at public “ad hominem” comments, the court would not grant the emergency relief that was sought.

The court also would not prohibit defendant from publishing allegations that plaintiff had engaged in fraudulent or improper business practices, or from publishing the personally identifying information of plaintiff’s employees, officers, agents, and directors. Plaintiff’s submission failed to demonstrate to the court’s satisfaction how such injunctive relief would not unlawfully impair defendant’s First Amendment rights.

The did, however, enjoin defendant from encouraging others to contact the children and other family members of employees about plaintiff’s business practices because contact of that nature had the potential to cause irreparable emotional harm to those family members, who have no employment or professional relationship with defendant.

Symetra Life Ins. Co. v. Emerson, 2018 WL 6338723(D. Maine, Dec. 4, 2018)

March 27, 2018 First Amendment, Trademarks

Can YouTube be sued for censorship? A court weighs in.

Prager University sued Google LLC and YouTube, LLC, alleging that defendants discriminated against plaintiff’s conservative political viewpoints by restricting its videos on YouTube. Plaintiff asked the court to issue a preliminary injunction to prevent defendants from continuing these practices and to allow plaintiff’s videos unrestricted access on the platform. Plaintiff also sought damages for alleged violations of free speech rights and other claims.

The court decided in favor of defendants. It dismissed plaintiff’s federal claims under the First Amendment and the Lanham Act and declined to exercise jurisdiction over the state law claims. Additionally, the court denied plaintiff’s motion for a preliminary injunction.

The court ruled that defendants, as private entities, were not state actors and therefore not bound by the First Amendment. It found that YouTube’s platform, even if widely used for public discourse, does not transform it into a public forum subject to constitutional free speech protections. Regarding the Lanham Act, the court concluded that statements about YouTube being a platform for free expression were non-actionable “puffery” and not specific enough to be considered false advertising.

In dismissing plaintiff’s state law claims, the court noted that they raised complex issues of California law better suited for state courts. This decision left open the possibility for plaintiff to amend its complaint or pursue claims in state court.

Three reasons why this case matters:

Clarification of First Amendment Limits: The ruling reinforces that constitutional free speech protections apply only to government actors, not private companies.
Role of Platforms in Content Moderation: The case highlights ongoing debates about the responsibilities of tech companies in regulating content and their impact on public discourse.
Defining Puffery vs. Advertising: The court’s finding that statements about neutrality were mere puffery provides insight into how courts assess claims of false advertising.

Prager University v. Google LLC, 2018 WL 1471939 (N.D. Cal. March 26, 2018)

December 15, 2017 First Amendment, Social Media

Pastor’s First Amendment rights affected parole conditions barring social media use

Plaintiff – a Baptist minister on parole in California – sued several parole officials, arguing that conditions placed on his parole violated plaintiff’s First Amendment rights. Among the contested restrictions was a prohibition on plaintiff accessing social media. Plaintiff claimed this restriction infringed on both his right to free speech and his right to freely exercise his religion. Plaintiff asked the court for a preliminary injunction to stop the enforcement of this condition. The court ultimately sided with plaintiff, ruling that the social media ban was unconstitutional.

The Free Speech challenge

Plaintiff argued that the parole condition prevented him from sharing his religious message online. As a preacher, he relied on platforms such as Facebook and Twitter to post sermons, connect with congregants who could not attend services, and expand his ministry by engaging with other pastors. The social media ban, plaintiff claimed, silenced him in a space essential for modern communication.

The court agreed, citing the U.S. Supreme Court’s ruling in Packingham v. North Carolina, which struck down a law barring registered sex offenders from using social media. In Packingham, the Court emphasized that social media platforms are akin to a modern public square and are vital for exercising free speech rights. Similarly, the court in this case found that the blanket prohibition on social media access imposed by the parole conditions was overly broad and not narrowly tailored to address specific risks or concerns.

The court noted that plaintiff’s past offenses, which occurred decades earlier, did not involve social media or the internet, undermining the justification for such a sweeping restriction. While public safety was a legitimate concern, the court emphasized that parole conditions must be carefully tailored to avoid unnecessary burdens on constitutional rights.

The Free Exercise challenge

Plaintiff also argued that the social media ban interfered with his ability to practice his religion. He asserted that posting sermons online and engaging with his congregation through social media were integral parts of his ministry. By prohibiting social media use, the parole condition restricted his ability to preach and share his faith beyond the physical boundaries of his church.

The court found this argument compelling. Religious practice is not confined to in-person settings, and plaintiff demonstrated that social media was a vital tool for his ministry. The court noted that barring a preacher from using a key means of sharing religious teachings imposed a unique burden on religious activity. Drawing on principles from prior Free Exercise Clause cases, the court held that the parole condition was not narrowly tailored to serve a compelling government interest, as it broadly prohibited access to all social media regardless of its religious purpose.

The court’s decision

The court granted plaintiff’s request for a preliminary injunction, concluding that he was likely to succeed on his claims under both the Free Speech Clause and the Free Exercise Clause of the First Amendment. The ruling allowed plaintiff to use social media during the litigation, while acknowledging the government’s legitimate interest in monitoring parolees. The court encouraged less restrictive alternatives, such as targeted supervision or limiting access to specific sites that posed risks, rather than a blanket ban.

Three reasons why this case matters:

Intersection of Speech and Religion: The case highlights how digital tools are essential for both free speech and the practice of religion, especially for individuals sharing messages with broader communities.

Limits on Blanket Restrictions: The ruling reaffirms that government-imposed conditions, such as parole rules, must be narrowly tailored to avoid infringing constitutional rights.

Modern Application of First Amendment Rights: By referencing Packingham, the court acknowledged the evolving role of social media as a platform for public discourse and religious expression.

Manning v. Powers, 281 F. Supp. 3d 953 (C.D. Cal. Dec. 13, 2017)

December 1, 2015 Computer Crime, First Amendment

Seventh Circuit sides with Backpage in free speech suit against sheriff

trouble

Backpage is an infamous classified ads website that provides an online forum for users to post ads relating to adult services. The sheriff of Cook County, Illinois (i.e. Chicago) sent letters to the major credit card companies urging them to prohibit users from using the companies’ services to purchase Backpage ads (whether those ads were legal or not). Backpage sued the sheriff, arguing the communications with the credit card companies were a free speech violation.

The lower court denied Backpage’s motion for preliminary injunction. Backpage sought review with the Seventh Circuit. On appeal, the court reversed and remanded.

The appellate court held that while the sheriff has a First Amendment right to express his views about Backpage, a public official who tries to shut down an avenue of expression of ideas and opinions through “actual or threatened imposition of government power or sanction” is violating the First Amendment.

Judge Posner, writing for the court, mentioned the sheriff’s past failure to shut down Craigslist’s adult section through litigation (See Dart v. Craigslist, Inc. 665 F.Supp.2d 961 (N.D.Ill.2009)):

The suit against Craigslist having failed, the sheriff decided to proceed against Backpage not by litigation but instead by suffocation, depriving the company of ad revenues by scaring off its payments-service providers. The analogy is to killing a person by cutting off his oxygen supply rather than by shooting him. Still, if all the sheriff were doing to crush Backpage was done in his capacity as a private citizen rather than as a government official (and a powerful government official at that), he would be within his rights. But he is using the power of his office to threaten legal sanctions against the credit-card companies for facilitating future speech, and by doing so he is violating the First Amendment unless there is no constitutionally protected speech in the ads on Backpage’s website—and no one is claiming that.

The court went on to find that the sheriff’s communications made the credit card companies “victims of government coercion,” in that the letters threatened Backpage with criminal culpability when, à la Dart v. Craigslist and 47 U.S.C. 230, it was unclear whether Backpage was in violation of the law for providing the forum for the ads.

Backpage.com, LLC v. Dart, — F.3d —, 2015 WL 7717221 (7th Cir. Nov. 30, 2015)

Evan Brown is a Chicago attorney advising enterprises on important aspects of technology law, including software development, technology and content licensing, and general privacy issues.

October 12, 2015 First Amendment, Privacy, Right of Publicity

California court okays lawsuit against mugshot posting website

The Court of Appeal of California has held that defendant website operator – who posted arrestees’ mugshots and names, and generated revenue from advertisements using arrestees’ names and by accepting money to take the photos down – was not entitled to have the lawsuit against it dismissed. Defendant’s profiting from the photos and their takedown was not in connection with an issue of public interest, and therefore did not entitle defendant to the relief afforded by an anti-SLAPP motion.

Plaintiff filed a class action lawsuit against defendant website operator, arguing that the website’s practice of accepting money to take down mugshots it posted violated California laws against misappropriation of likeness, and constituted unfair and unlawful business practices.

Defendant moved to dismiss, arguing plaintiff’s claims comprised a “strategic lawsuit against public participation” (or “SLAPP”). California has an anti-SLAPP statute that allows defendants to move to strike any cause of action “arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue …, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

The court held that the posting of mugshots was in furtherance of defendant’s free speech rights and was in connection with a public issue. But the actual complained-of conduct – the generating of revenue through advertisements, and from fees generated for taking the photos down – was not protected activity under the anti-SLAPP statute.

Because the claims did not arise from the part of defendant’s conduct that would be considered “protected activity” under the anti-SLAPP statute, but instead arose from other, non-protected activity (making money off of people’s names and photos), the anti-SLAPP statute did not protect defendant. Unless the parties settle, the case will proceed.

Rogers v. Justmugshots.Com, Corp., 2015 WL 5838403, (Not Reported in Cal.Rptr.3d) (October 7, 2015)

Evan Brown is an attorney in Chicago helping clients manage issues involving technology and new media.

February 10, 2014 First Amendment

Police department did not violate First Amendment by demoting officer who posted Confederate flag on Facebook

Case illustrates the “frequent gamble” one makes when posting on social media.

When you hear about Georgia, the name Duke, dealing with the cops, and the Confederate flag, you think Hazzard County, right? Or better yet, Daisy Duke. This case had a number of those elements, but presented a much more serious free speech question than Bo or Luke could have ever done.

Plaintiff (named Duke), a captain at Georgia’s Clayton State University police department, posted a picture of the Confederate flag to his Facebook account with the caption “It’s time for the second revolution.” He was not on duty when he posted it, nor did he intend it to be visible by everyone (just friends and family). He claimed that he wanted to “express his general dissatisfaction with Washington politicians.” At the time, the police department had no social media policy that would have prevented the post.

The chief of police demoted plaintiff and cut his pay by $15,000, stating that the Facebook post was inappropriate for someone in plaintiff’s position, and that officers should not espouse political views in public.

Plaintiff sued the police chief alleging, among other things, that his demotion over the Facebook post was a retaliation that violated his First Amendment rights. Defendant moved to dismiss. The court granted the motion.

It held that the police department’s legitimate interest in efficient public service outweighed plaintiff’s interest in speaking. The determination on this issue depended heavily on the content of the communication, and the fact that defendant was a police officer.

While the court acknowledged that plaintiff intended to express his disapproval of Washington politicians, it found that “on its face his speech could convey a drastically different message with different implications.” The court noted that order and favorable public perception were critical. “[A] police department is a ‘paramilitary organization, with a need to secure discipline, mutual respect, trust and particular efficiency among the ranks due to its status as a quasi-military entity different from other public employers.'” And police departments have a particular interest in maintaining “a favorable reputation with the public.” In sum, the court found, the speech at issue was capable of impeding the government’s ability to perform its duties efficiently.

The fact that the post was made off-duty and just to friends and family did not dissuade the court from finding the demotion to be proper. A local television station picked up the story that plaintiff had made the post. The court noted that “this illustrates the very gamble individuals take in posting content on the Internet and the frequent lack of control one has over its further dissemination.”

Duke v. Hamil, 2014 WL 414222 (N.D.Ga. February 4, 2014)

February 5, 2014 Defamation, First Amendment

Injunction against blogger violated the First Amendment

Prohibiting former tenant from blogging about landlord was unconstitutional prior restraint against speech.

Defendants wrote several blog posts critical of their former commercial landlord. The landlord sued for defamation and tortious interference, and sought an injunction against defendants’ blogging. The trial court granted the injunction, determining that defendants had “blogged extensively about [plaintiffs] and many of these blogs [were] arguably defamatory.” Although the court noted that a trial on the defamation claims was yet to be held, it ordered defendants “not to enter defamatory blogs in the future.”

Defendants sought review with the Court of Appeal of Florida. On appeal, the court reversed and remanded.

It held that injunctive relief was not available to prohibit the making of defamatory or libelous statements. “A temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns.” But the court noted a limited exception to the general rule where the defamatory words are made in the furtherance of the commission of another intentional tort.

In this case, plaintiffs alleged another intentional tort – intentional interference with advantageous business relationships. But the court found that plaintiffs failed to present sufficient evidence to show they were entitled to an injunction for that claim. The trial court record failed to support an inference that the defendants’ blog posts had a deleterious effect upon defendants’ prospective business relationships.

Chevaldina v. R.K./FL Management, Inc., — So.3d —, 2014 WL 443977 (Fla.App. 3 Dist. February 5, 2014)

Image credit: By Maik Meid (Own work) [CC-BY-SA-3.0], via Wikimedia Commons

January 22, 2014 First Amendment

Hulk Hogan sex tape redux: Another court holds Gawker had First Amendment right to publish video excerpts

Evan Brown is a Chicago attorney helping businesses and individuals identify and manage issues dealing with technology development, copyright, trademarks, software licensing and many other matters involving the internet and new media. Call him at (630) 362-7237 or email ebrown@internetcases.com.

As we discussed here on internetcases back in November 2012, someone surreptitiously filmed Hulk Hogan engaged in sex acts with someone other than his wife. When Gawker posted an article and video excerpts about that, Hulk sued in federal court for invasion of privacy. The federal court denied the preliminary injunction, holding that to bar Gawker from publishing the information would be an unconstitutional prior restraint on speech.

A few weeks after the federal court denied his motion for preliminary injunction, Hulk voluntarily dismissed the federal case and filed a new case in state court. Unlike the federal court, the state court granted a preliminary injunction against Gawker publishing the information and the video excerpts. Gawker sought review with the Court of Appeal of Florida. On appeal, the court reversed the lower court’s order granting the preliminary injunction.

The state appellate court’s decision closely tracked the federal court’s reasoning from 2012. The court observed that where matters of purely private significance are at issue, First Amendment protections are often less rigorous. But speech on matters of public concern is “at the heart of the First Amendment’s protection.”

The court found that the sex tape excerpts and information that Gawker published were matters of public concern. Much of this was from Hulk’s own doing — he injected himself into the public spotlight not only as a professional wrestler, but also through books detailing his sexual indiscretions, radio interviews, and other public pronouncements about his “conquests.”

In arguing that Gawker’s speech was not of public concern, Hulk looked to Michaels v. Internet Entertainment Group, Inc., 5 F.Supp.2d 823 (C.D.Cal.1998), a case that dealt with the infamous sex tape that Bret Michaels and Pamela Anderson made. In that case, the court found defendant’s redistribution of the video was not protected by the First Amendment, in part because the distribution was purely commercial. The court didn’t buy it.

But wasn’t Gawker’s use commercial as well? The court drew a distinction:

We are aware that Gawker Media is likely to profit indirectly from publishing the report with video excerpts to the extent that it increases traffic to Gawker Media’s website. However, this is distinguishable from selling the [Hulk] Sex Tape purely for commercial purposes.

So the court found that despite his brawn, Hulk failed to carry his “heavy burden” of overcoming the presumption that a preliminary injunction would violate the First Amendment in this situation.

Gawker Media, LLC v. Bollea, 2014 WL 185217 (Fla.App. 2 Dist., January 17, 2014)

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.