Twice a year I address the First Amendment Lawyers Association and update them on recent changes in internet law and the First Amendment. Here is a summary of that presentation for February 2014 and those cases.

Social Media Cases

Yelp me be Anonymous!
Virginia Appeals Court Says Yelp needs to reveal identify of it’s authors.
Yelp, Inc. v. Hadeed Carpet Cleaning, Inc. 752 S.E.2d 554 (2014)
Virginia Appeals Court Affirms lower court decision requiring Yelp! to provide a subpoena duces tecum to identify 7 of its users that wrote unfavorable reviews of a Virginia carpet cleaning business.
The carpet cleaning business brought a defamation action against the website. The carpet cleaning company claimed they were unable to substantiate customer records from its files that would match the negative reviews.

The Circuit Court, City of Alexandria, issued an order enforcing the subpoena. Yelp failed to comply with the order and was held in civil contempt.

Yelp appealed the ruling. The VA Court of Appeals affirmed the ruling providing that the order to disclose the identity of the authors was appropriate.

Tinker can Extend Off-Campus
Wynar v Douglas County School Dist., 728 F.3d 1062 (9th Cir. 2013)
9th Circuit Court Affirms District Court’s Summary Judgment to Douglas County School District in Nevada.

A student used posted several comments on ‘My Space’, while at his home, which threatened the school and students.
The Student was initially suspended for 10 days, then received a 90 day expulsion because of the comments.

The student’s father sued the School District for violation of his sons’ Constitutional Rights under 42 USC § 1983.

In its opinion, the court cited Tinker v Des Moines ISD, 393 US 503 (1969), concluding that Tinker applies to this case despite the communication happening off campus. Under Tinker, “Schools may limit speech that ‘might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities’.

The Court cited LaVine v Blaine School District 257 F. 3d 981, 988 (9th Cir 2001). “We must take care when evaluating a student’s First Amendment right of free expression against school officials need to provide a safe school environment not to overreact in favor of either.” Id at 983.

Appeals Courts says that “Liking Something on Facebook” IS protected speech.
Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013)
The 4th Circuit Court of Appeals overturned the lower court’s decision in Bland v Roberts, stating that Liking Something on Facebook does constitute Protected Speech.

In 2012, the District Court for Eastern Virginia had ruled that a Sheriff’s employee could not claim that he was fired for supporting another candidate on Facebook because “Liking” on Facebook was not protected speech.

In its’ Opinion, the 4th Circuit held that “Liking on Facebook is the internet equivalent of displaying a political sign in one’s front yard”. The Court referenced Ladue v Gilleo, US 512 U.S. 43 (1994), in which the Supreme Court held that political lawn signs constituted protected speech.
The 4th Circuit further stated, “On the most basic level, clicking the “like’ button literally causes to be published the statement that the user likes something.”

US District Court Judge rules:
“Venting on Facebook does not enjoy First Amendment Protection”

Grazios v Greenville 2013 WL 6334011 Dec. 3, 2013
Former Police Office Susan Grazios filed action against the City of Greenville and the Greenville Police Chief after she was terminated for posting comments on Facebook that openly criticized the Police Chief. Grazios alleged that her comments were protected speech under the First Amendment.

Grazios posted comments criticizing the Police Chief for not allowing officers to the funeral of a fallen police officer who was killed in the line of duty because the department could not afford the “price of gas” it would have cost to send the officers to the funeral.

District Court Michael Mills held that Grazios speech was not protected as a First Amendment retaliation claim because it did not pass the four prong Pickering Test. Pickering v Board of Education, 391 US 563 S. Ct. (1968).

Atlanta Police Officer Claimed Facebook Post Prevented her Promotion
Gresham v City of Atlanta 2013 WL 5645316 Oct. 17, 2013 (not selected for publication)
US 11th Circuit Affirmed the lower courts finding for Summary Judgment in favor of the City of Atlanta and Police Chief George Turner after Officer Maria Gresham filed an action against the Defendants stating that her lack of promotion was in retaliation for her Facebook postings.

Gresham posted comments that said a fellow officer in the department interfered in an unethical manner with a person the Plaintiff had arrested.

Plaintiff was investigated by the Dept’s Office of Professional Standards for violating rules of communication of criticism of fellow officers to “be directed only through official Department channels”.

While under investigation, Gresham promotions became available, but Gresham was not promoted. Gresham claims she was not promoted in retaliation for her First Amendment Facebook speech.

The Court determined that Gresham’s speech did not pass the established 4 part Pickering test and equated her speech as venting her frustration with her superiors. (Pickering v Bd of Education, 391 US 563, 88 S. Ct. (1968).)

Blog rants are protected speech.
(Nice work Marc Randazza, my good friend)
Chevaldina v. R.K./FL Management, Inc. 2014 WL 443977 (2014)
Commercial landlord brought defamation, tortious interference with business relationship, and stalking claims against former tenants for statements posted to internet webpage. Landlord moved for temporary injunction. The Circuit Court granted the injunction.

The injunction under review prohibits Ms. Chevaldina from: “directly or indirectly interfering in person, orally, in written form or via any blogs or other material posted on the internet or in any media with Plaintiffs’ advantageous or contractual business relationships”; and “directly or indirectly publishing any blogs or any other written or spoken matter calculated to defame, tortuously interfere with, invade the privacy of, or otherwise cause harm to Plaintiffs.”

Injunctive relief is not available to prohibit the making of defamatory or libelous statements. See, e.g., Vrasic v. Leibel, 106 So.3d 485, 486 (Fla. 4th DCA 2013).

A temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns. Id.

Pennsylvania Supreme Court Overturns Lower Courts Decision to Dismiss Charges of Possession and Distribution of Child Pornography
In Re C.S., 27 MAP 2013
In 2011, a PA Lehigh County Judge granted a motion to dismiss for a Pennsylvania teenager who was accused of Possession and Distribution of Child Pornography after she posted a video on Facebook of two fellow schoolmates consensually engaging in a sexual act.

On Jan.23, 2014 the Supreme Court of Pennsylvania overturned that decision, stating that the judge erred when he raised a sua sponte vagueness challenge, stating that the state porn law was unconstitutional as applied to the teenager because it fails to provide a teenager of ordinary intelligence ‘fair notice’ of what is prohibited.

The Supreme Court cited Commonwealth v Klobuchir 405, A2d 881, 883-84(PA 1975) when it held that issues, even of constitutional dimension, can not be raised for the first time on appeal.

Copyright Updates

An Epic Rap Court Battle between the Ricky Rosses
a.k.a. the War of the Rosses

Ross v. Roberts, 166 Cal.Rptr.3d 359
The California Court of Appeals 2nd Appellate District Court affirmed Summary Judgment for Rapper Rick Ross against former California Druglord Freeway Ricky Ross’ claims of misappropriation of his identity and rights of publicity.

In addition to using the stage name Rick Ross, William Leonard Roberts’ rap lyrics reference selling drugs and running large scale cocaine operations.
The Court concluded that the First Amendment protected the Free Expression of the Rapper’s use of the name through its application of the Transformative Test. (citing Comedy III v Saderup Inc., 25 cal. 4th 387 (2001) ) “When a work contains significant transformative elements, it is not only especially worthy of First Amendment protection, bit it is also less likely to interfere with the economic interest protected by the right of publicity…Id at 405

Under California Civil Code section 3344, subdivision a, the prevailing party is also entitled to attorney fees and costs.

Google to Author’s Guild: F.U.
Authorsguild v. Google, 2013 WL 6017130 (S. Dist. NY 2013)
Judge Allows Google to overcome the Author’s Guild’s Prima Facie Copyright claim by its defense of Fair Use.

The Author’s Guild brought a copyright claim against Google in 2005, stating that Google violated effective Copyrights pursuant to 107 of the Copyright Acts, when they reproduced copies of the book for its Google Library Project.

Google conceded that it digitally copied 20 million books for the library project, some without the copyright owner’s permission. Google kept a copy of the digital book for its files, and displayed “snip-its’ of the book for public use.

The US District Court of Southern District of NY granted Summary Judgment for Google; basing its decision on its analysis of the 4 established criteria for Fair Use outlined in 17 U.S.C. §107 :
1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

Legislation Updates

New Law allows California Schools to Suspend/Expel Students who partake in Electronic Bulling; Even when Bulling takes place off of School Property.
California AB 256 went into effect on Jan 1, 2014.

The new law changes the definition of electronic bullying to include electronic transmissions that take place on or off school property.

CA Judicial Council recommends repealing juror social media law.
California Judicial Council has recommended that CA 166(a)(6) be repealed, based in part, because it is making investigation of juror contempt of court difficult to investigate.

[B]y making electronic communication about the trial a crime, subdivision (a)(6) inadvertently impairs the ability of the court to determine if misconduct occurred. Because a prosecutor may charge the juror with a misdemeanor, questions posed by the court may implicate the juror’s constitutional rights against compelled testimony and self- incrimination. The implication of the juror’s constitutional rights could thwart the court’s ability to conduct an informal inquiry into the juror’s alleged use of electronic communications during the trial.

In Aug. 2011, California lawmakers hoped to curb the incident of mistrials caused by juror’s use of social media and the internet to research or disseminate information about a case.

Proponents for repealing the law say that Judges still would maintain the ability to seek criminal and civil sanctions for jurors that defy jury instructions without requiring such sanctions.