FALA Presentation
Internet Law Update
Las Vegas, NV February 2015
Andrew Contiguglia
The Contiguglia Law Firm, P.C.

The Winter 2015 meeting of the First Amendment Lawyers Association was a success overall. In typical fashion, the internet law update drew its solid share of participation and debate. Here is a summary of the materials presented.

Music Group Macao Com. Offshore Ltd. v. John Does I-IX, 2015 WL 75073 (N.D. Cal. Jan. 6, 2015).
Twitter subpoena not a violation of First Amendment

• January 6, 2015 the United States District Court, San Francisco Division, compelled Twitter to release information on anonymous users by subpoena
• Music Group filed a defamation suit against anonymous Twitter user for “malicious and untrue statements.” In doing so, Music Group subpoena Twitter to release identifying information of the anonymous users
• The issue before the court was whether the subpoena unduly infracts the Doe defendants’ First Amendment rights.
• The court relied on Perry two-prong test.
• First, the party asserting the privilege must demonstrate a prima facie showing of arguable first amendment infringement.
• A showing that the discovery request will result in
• Harassment, membership withdrawal, or discouragement of new members
• OR, other consequences which objectively suggest an impact on, “chilling of, the members First Amendment rights. Perry v. Schwarzenegger, 591 F.3d 1126, 1140–41 (9th Cir. 2009).
• Second, the party seeking the discovery has demonstrated an interest in obtaining the disclosure AND the interest is sufficient to justify the deterrent effect on the free exercise of the constitutionally protected right
• The court found that the Doe defendants satisfied the first prong, however, the dispositive issue lies under the second.

• The court found that Music Group’s interest in the requested information does outweigh an infraction of the Doe’s defendants’ right to speak anonymously.
• First, the information sought is narrowly tailored to Music Group’s need to serve process.
• Music Group asked only for the “name, address, email address and any proxy address.”
• Second, the court noted that the information sought was “highly relevant” to its claims. (the need for information to serve process)
• The court separated the request from Donzinger, where Chevron sought protected information on multiple topics that weren’t “highly relevant.” Chevron Corp. v. Donziger, 2013 WL 1402727 (N.D.Cal. Apr. 5, 2013).

Mark v. Gawker Media LLC, 2014 WL 5557489 (S.D.N.Y. Nov. 3, 2014).
Social Media useful for gathering class-action plaintiffs

• Plaintiff’s requested to use social media to target potential plaintiffs.
• They want to use dedicated social media pages entitled “Gawker Intern Lawsuit” or “Gawker Class Action”
• Defendant argues that no evidence exist that interns use these social media pages and be expected to receive notice. In addition, the pages would deprive the Court of control over the message delivered to potential collective members.
• The court granted the plaintiffs request.
• The court held that the vast majority of interns are likely to have one social media account, and the message mirrors the notice approved by the court.
• The court made reference that its’ role is to ensure fairness and accuracy, not the arbiter of discussion involving the parties that may take place.

U.S. v. Sayer, 748 F.3d 425 (1st Cir. 2014).
Criminal Law – Cyberstalking

• The question presented is whether Maine’s cyberstalking statute violates the First Amendment as being overbroad
• Sayer, the defendant, was found guilty of Maine’s cyberstalking statute. He was sentenced to a 60-month prison term.
• This case involves the defendant, posing as his ex-girlfriend, posting ads in Craigslist personal encounters section.
• The court held that the cyberstalking statute was not a substantially overbroad in violation of the First Amendment.
• The court relied on Broadrick v. Oklahoma
• The defendant must make a showing that the law punishes a “substantial” amount of protected free speech, “judge in relation to the statute’s plainly legitimate sweep.”
• In this case, the defendant argued that because the text of the cyberstalking statute encompasses speech that causes only substantial emotional distress, it proscribes protected expression that is merely annoying or insulting.
• The court found that the internet stalking statute, which prohibits a course of conduct done with “intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass or intimidate, or cause substantial emotional distress” clearly targets conduct performed with serious criminal intent, not just speech that happens to cause annoyance or insult. Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 (1973).

Doe v. Harris, 772 F.3d 563 (9th Cir. 2014).
Sex Offenders’ Right To First Amendment

• The question presented is whether the Californians Against Sexual Exploitation (CASE) Act violated First Amendment right to free speech.
• The CASE act required a registered sex offender to provide “a list of any and all Internet identifiers established or used by the person” and “a list of any and all Internet service providers used by the person.”
• The court first identified what First Amendment protection sex offenders are afforded.
• In doing so, they looked at Pell v. Procunier. 417 U.S. 817, 822 (1974). (Inmates only retain those First Amendment Rights that are not inconsistent with their status as prisoners or with the legitimate penological objectives of the corrections system.)
• The court further noted under Birzon that parolees enjoy a greater freedom but the government may impose restrictions on the rights of the parolee that are reasonably and necessarily related to the government interest. Birzon v. King, 469 F.2d 1241, 1243 (2d Cir.1972).
• The court noted that sex offender registration is a collateral consequence and not a restrain on liberty, thereby, enjoying the full protection of the First Amendment.
• In evaluating the CASE act the court found that the law on its face does not prohibit speech, but its implications regulate and burden speech.
• The court found the Act burden free speech by requiring sex offenders to notify within 24 hours of engaging in online communication with a new identifier
• The CASE Act was declared content-neutral, thus, requiring intermediate scrutiny
• Narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of information
• Noting Ward, the court ask whether the means chosen burden substantially more speech than is necessary to further the government’s legitimate interest
• In doing their analysis, the court found that the Act served a legitimate state interest by preventing and responding to crimes as serious as sexual exploitation and human trafficking.
• Although the court found the State’s interest to be legitimate, they determined the Act unnecessarily chilled protected speech in three ways.
• First, the act does not make clear what sex offenders are required to report
• Second, there are insufficient safeguards preventing the public release of information sex offenders do report
• Last, the 24-hour reporting requirement is onerous and overbroad.

Lewis v. Phillips, 2014 WL 4653050 (C.D. Ill Sept. 18, 2014).
Sex Offenders’ First Amendment Claims

• Fifteen pro se Plaintiffs pursue First Amendment claims arising from restrictions on their access to movies, video games, video gaming systems and other electronic devices in the Rushville Treatment and Detention Center.
• The United States District Court, Springfield Division recognized in its prior order that video games and Electronics with hard drives and internet capability touch on the First Amendment right to create and receive expression. See Brown v. Entertainment Merchants Ass’n, 131 S.Ct. 2729, 2733 (2011).
• For the reasons stated, the court applied the Turner test developed by the Supreme Court.
• Are the prohibitions reasonably related to legitimate government interest. Turner v. Safely, 482 U.S. 78, 89 (1987).
• It is not disputed that the security, therapeutic and staffing concerns are legitimate government concerns. The plaintiffs’ primary argument is impossibility. It is impossible for them to access the interest or to communicate with other residents through the gaming devices because they lack the ability to access the internet.
• The court turned to the second factor of the Turner test. Whether the Plaintiffs have an alternative means of exercising their right
• The court found that eventually the video game device will break down or be confiscated and no reasonable alternative means exist
• However, the court questioned as to whether other means exist such as televisions, radio, movies books, and the gym. Turner, 482 U.S. 78, 89 (1987).
• The remaining Turner factors weighed in Defendant’s favor
• The court looked at the ease of maintaining their interest. By doing so, they found that it would be difficult to continually check the hard drive, conduct searches on very small computer parts, and constantly monitor whether any unsecured wireless networks were in the area. Id.
• Therefore, the court held that the restrictions are reasonably related to a legitimate state government interest.

Demetriades v. Yelp, Inc., 175 Cal. Rptr. 3d 131, 133 (Cal. App. 2d Dist. 2014), reh’g denied (Aug. 20, 2014), review denied (Nov. 12, 2014).
Lawsuit against Yelp over how it marketed its review filters can move forward

• Plaintiff sought an injunction under Unfair Competition Law and False Advertising Law to prevent Yelp from making claims about the accuracy and efficacy of its “filter” of unreliable or biased customer reviews
• Plaintiff alleges that Yelp engaged in false advertising by claiming that each user review passed through a “filter” that gave consumers “the most trusted reviews.”
• The court found that the restaurant operator’s claims were within commercial speech exception from anti-Slapp statute, AND
• Communications decency act did not bar restaurant operator’s claim

Munroe v. C. Bucks Sch. Dist., 2014 WL 3700325 (E.D. Pa. July 25, 2014).
First Amendment Retaliation
• Former high school teacher brought § 1983 action against school district, principal, and superintendent, alleging retaliation in violation of her First Amendment.
• The teacher was immediate suspended without pay and finally terminated after blog post authored by her were discovered.
• The blog post made no direct reference to any students or co-workers. The post described her daily events and discussed her students behavior
• The court relied on the Pickering balancing-of-interest test. Pickering v. Bd. of Ed. of Tp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968)([a] public school teacher was dismissed after writing a letter published in the local newspaper that criticized the school board’s in the local newspaper).
• Under the Pickering test, the court focused on the content of the blog rather than the schools interest.
• The court separated Munroe’s case from Pickering by asking the question whether her content was matters of public concern.
• The court found that the plaintiff’s comments do not merit protection under the balancing test because the blog related to matters not in public concern and was sufficiently disruptive so as to diminish any legitimate interest in expression.
• The dispositive question in this case was whether the plaintiff’s first amendment right were “[o]utweighed by the employer’s interest in the effective operations of its public service.” Miller v. Clinton Cty., 544 F.3d 542, 548 (3rd Cir. 2008).

Barnes v. Zaccari, 2015 WL 134362 (11th Cir. Jan. 12, 2015)
Return of the First Amendment Retaliation Claims

• Expelled student, Barnes, brought a civil rights action against state university; Barnes was expelled for peaceful protesting, due to environmental concerns because of the school president, Zaccari, plan to construct parking garages on campus.
• In 2010, the district court judge had ruled that Barnes’s First Amendment claim had to be dismissed on the grounds that Barnes had supposedly alleged a conspiracy to violate First Amendment rights, while only Zaccari was found responsible for doing so.
• To state a claim for retaliation, the plaintiff “must establish first, that his speech or act was constitutionally protected; second, that the defendant’s retaliatory conduct adversely affected the protected speech; and third, that there is a causal connection between the retaliatory actions and the adverse effect on speech.” Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir.2005).
• The Eleventh Circuit found that Barnes was entitled to due process and remanded his case to trial court for a hearing on the First Amendment claim.

Smith v. County of Suffolk, 2015 WL 161701 (2d Cir. Jan. 14, 2015).
First Amendment Retaliation Claim

• Retired police lieutenant commenced action against county and its police commissioner in his official and personal capacities, alleging they retaliated against him for asserting his right to First Amendment.
• This case arises out of misconduct related to the use of his Department owned computer
• The action arose out of email communication with media representatives on matters pertaining to Departmental business
• Relying on Dillion, to survive summary judgment the plaintiff must present a prima facie case by
• First, a showing that the plaintiff engaged in protected First Amendment activity
• Second, he suffered an adverse employment action
• Last, there was a causal connection between the protected activity and the adverse employment action. Dillon v. Morano, 497 F.3d 247, 251 (2d Cir.2007).
• The causal connection requirement was dispositive.
• The court focused on the charges against and internal memorandum which directly implicates protected speech and content of that speech pertaining to the officer.
• After meeting the prima facie case, the court turned to the Mount Healthy Defense.
• The question then became whether the defendants have demonstrated that a reasonable jury would have to find by a preponderance of the evidence that the Department would have investigated, transferred, and suspended the officer ABSENT his citizen-media speech. Mount Healthy City School District Board of Education v. Doyle,429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).
• The Mount Healthy defense failed because a lack of a articulate and substantiate reasonable link between the unprotected misconduct and specific adverse actions.
• Therefore, the summary judgment failed and the case was remanded for further proceedings

Website Operator Banned from the ‘Revenge Porn’ Business After FTC Charges He Unfairly Posted Nude Photos

• The operator of an alleged “revenge porn” website is banned from publicly sharing any more nude videos or photographs of people without their affirmative express consent, under a settlement with the Federal Trade Commission.
• The FTC’s complaint against the operator alleges that he used deception to acquire and post intimate images of women, then referred them to another website he controlled, where they were told they could have the pictures removed if they paid hundreds of dollars.
• The operator solicited viewers of his site to anonymously submit nude photos of people to his site, according to the complaint. He required submissions to include sensitive personal information about the people in the photos, including their full name, town and state, phone number and Facebook profile.
• In addition, the operator offered a content removal service for a fee under third-party services such as “Takedown Lawyer.”
• Under the terms of the settlement, the operator is required to permanently delete all of the images and other personal information he received during the time he operated the site. He will also be prohibited from publicly sharing intimate videos or photographs of people without their affirmative express consent, as well as being prohibited from misrepresenting how he will use any personal information he collects online. https://www.ftc.gov/system/files/documents/cases/150129craigbrittaincmpt.pdf