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First Amendment

Politician's Suicide Raises Questions About Unsealing Criminal Charge

The Rochester Democrat & Chronicle's Gary Craig has highlighted an interesting legal question in the wake of a state assemblyman's suicide. Bill Nojay committed suicide before a federal criminal charge against him was unsealed. Now what? Can that charge be made public even though the criminal defendant is dead? 

One local attorney said that, under the First Amendment, a criminal charge against a public figure like Nojay should be unveiled. That hasn't happened yet, but the D&C is going to make that argument in federal court.

The D&C reports that Nojay may have allegedly taken money from an attorney client-trust account. 

Trump Destined to Lose First Amendment Fight

The Economist has an analysis of the legal consequences of Republican presidential nominee Donald Trump's increasing attacks on the media. The magazine notes that he has said he would open up libel law to make it easier for public figures to sue for defamation. But The Economist notes that U.S. Supreme Court rulings, including New York Times v. Sullivan, have made the protection of the freedom of the press "strong and well entrenched."

However, Supreme Court Brief's Tony Mauro recently noted that there is a case pending before the Supreme Court which could test the New York Times v. Sullivan precedent. The court has not yet granted allocatur in Armstrong v. Thompson

Online Reviews Protected Speech, Appellate Court Rules

Submitted by Amaris Elliott-Engel on Sun, 03/20/2016 - 14:09

The Oregon Supreme Court has ruled that a negative review of a wedding venue is protected by the First Amendment. In doing so, the court also set precedent for how to distinguish whether speech is protected opinion or a defamatory assertion of fact.

Justice Richard C. Baldwin, writing for the court, applied a Ninth Circuit test in Unelko Corp v. Rooney: "whether a reasonable factfinder could conclude that an allegedly defamatory statement touching on a matter of public concern implies an assertion of objective fact and is therefore not constitutionally protected." The Oregon Supreme Court set out a three-part test to answer that question: 1) whether the general tenor of the entire publication negates the impression that the defendant was asserting an objective fact; 2) whether the defendant used figurative or hyperbolic language that negates that impression; and 3) whether the statement in question is susceptible of being proved true or false.

The defendant was a wedding guest who made a negative review of the venue on Google Reviews, including complaining that the owners were rude, the owners made wedding guests leave 45 minutes early and that the bridal suite was "'a tool shed that was painted pretty.'"

The case is only the second time that the Oregon Supreme Court has applied the U.S. Supreme Court's ruling in Milkovich v. Lorain Journal Co., which held that, in determining whether a defamatory statement is constitutionally protected, it must be decided if a reasonable factfinder could conclude that the statement implies an assertion of objective fact about the plaintiff. The Oregon Supreme Court decided to follow the Ninth Circuit's test in Unelko and found that the review did not imply an assertion of objective fact and instead was an opinion on a matter of public concern. 

The trial court struck down the wedding venue's defamation lawsuit under Oregon's anti-SLAPP law, but the Oregon Court of Appeals reversed.

Court Rules There Is No First Amendment Right to Film Police

U.S. District Judge Mark Kearney of the Eastern District of Pennsylvania has ruled that citizens don't have a First Amendment right to film police officers "absent a challenge to their conduct," The Legal Intelligencer's Gina Passarella reports. The issue is one of first impression and involves citizens whose cellphones were confiscated after they were filming or photographing police activity. One woman was a legal observer at a protest.

The judge said it has not been clear that documenting police activity--without challenging the activity of law enforcement officers--is expressive conduct.

Mary Catherine Roper of the ACLU of Pennsylvania told TLI that a police officer can't know what the intended use of an image truly is, whether it is to criticize the police or not.

However, the judge allowed the plaintiffs' Fourth Amendment claims to proceed.



9th Circuit: Conservative Nonprofits Must Turn Over Donor List to Attorney General

The U.S. Court of Appeals for the Ninth Circuit has rejected the argument of the Koch brothers' Americans for Prosperity and the Thomas More Law Society that their First Amendment rights were violated by a California law requiring them to turn over their list of donors to the California attorney general, Election Law Blog's Rick Hasen reports. The groups said they should be exempted from the law because disclosure of their donors could cause them to be harassed.

The Ninth Circuit reversed the injunction that had been put in place by the district court. The Attorney General is not disclosing the information to the public.

Protestors Don't Have Free Speech Rights at U.S. Supreme Court

The U.S. Court of Appeals for the D.C. Circuit ruled last week that protestors don't have the right to demonstrate closer to the U.S. Supreme Court than the sidewalk out front, The Washington Post's Robert Barnes reports. A law forbids demonstrations on the high court's grounds on the theory that closer protests could lead to the perception that the justices are swayed by public pressure.

U.S. Circuit Judge Sri Srinivasan wrote that the Supreme Court's plaza "is designed as an extension of the court ... and restrictions on protests there need only be reasonable and viewpoint-neutral."

First Amendment Protects Off-Label Promotion, Judge Rules

A federal judge ruled earlier this month that the Food and Drug Administration can't bar a drug company from promoting an unapproved use for its pills derived from fish oil, The Washington Post's Carolyn Johnson reports. U.S. District Judge Paul Engelmayer ruled that the First Amendment protects Amarin Corp. "'truthful and non-misleading speech'" in promoting a use of its pills that has not been approved by federal regulators.

Judge Overturns Idaho's Ag Gag Ban on Surveillance Inside Factory Farms

Idaho's "ag gag" law banning undercover surveillance inside of agricultural operations has been ruled unconstitutional, The Guardian's Rory Carroll reports. U.S. District Judge B Lynn Winmill ruled the ban violates the constitutional right to free speech and to equal protection: "'An agricultural facility’s operations that affect food and worker safety are not exclusively a private matter. Food and worker safety are matters of public concern.”'

Winmill also ruled that the Idaho statute violated the constitutional protection for equal protection under the law because it was motivated by animus toward animal rights activists.

Redskins' Trademarks Canceled

A federal judge has ordered the Washington Redskins football teams' federal trademark registrations canceled, The Washington Post's Ian Shapira reports. U.S. District Judge Gerald Bruce Lee upheld a ruling by the Trademark Trial and Appeal Board, which found that the team's name is offensive to American Indians and may disparage people. The win was at the summary judgment stage.

Lee reasoned that the U.S. Supreme Court's ruling that Texas didn't violate the First Amendment when it banned specialty license plates bearing the Confederate flag means that the government is exempt from First Amendment scrutiny. As a result, the judge ruled that the Lanham Act's ban on disparaging trademarks doesn't violate the First Amendment.

'Choose Life' License Plates Barred As 'Patently Offensive'

The U.S. Court of Appeals for the Second Circuit has ruled that New York can exclude "Choose Life" license plates from the state's specialty license plate program, The Volokh Conspiracy's Eugene Volokh writes. The Department of Motor Vehicles found that the plates are patently offensive, which the Second Circuit, 2-1, upheld.

The license plates are nonpublic forums in which "the government may select which speech is allowed, so long as the restriction is reasonable, viewpoint-neutral, and doesn’t vest excessive discretion in government officials, since such excessive discretion would lend itself to forbidden viewpoint discrimination," Volokh writes. The Second Circuit said the program excludes all viewpoints on the subject of abortion and thus is reasonable, viewpoint-neutral and doesn't vest excessive discretion in government officials.

Volokh agrees with the dissent that the DMV can't pick and choose what "'custom plates to permit, based solely on ... subjective judgment regarding the degree to which any given political, religious, or social issue is “inflammatory'" at any given time.


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