First Amendment

The Justice Department is seeking the dismissal of Twitter's lawsuit in which the social-media firm is challenging restrictions on revealing information about national security requests for user data, the Washington Post's Ellen Nakashima reports: "At issue is a letter issued in January 2014 by the Justice Department relaxing limits for companies wishing to disclose the number of such requests they receive. Twitter, which was not among the five firms that negotiated the new limits with the department, thought they were still too strict." The government says that the letter does not restrict Twitter's free expression.

After the Portland Press Herald defied a gag order, a judge presiding over a domestic assault case involving an attorney retracted the order, the newspaper's Scott Dolan reports: "'It is certainly very clear to me that this particular order was not lawful, and I should not have ordered the media to refrain from reporting what was said,”' Judge Jeffrey Moskowitz said in a Portland courtroom. It was the testimony of the lawyer's 34-year-old ex-girlfriend that the judge ordered not to be reported.

A group of business trade groups filed a lawsuit this week to block a new rule from the National Labor Relations Board to expedite employee votes on joining unions, the Wall Street Journal's Melanie Trottman reports. The plaintiffs say the new rule, adopted by the board 3-2, "could deprive employers of time they need to tell workers why they think a company should remain union-free and limit their ability to launch timely legal challenges."

The five plaintiffs include the U.S. Chamber of Commerce, the Coalition for a Democratic Workplace, the National Association of Manufacturers, the National Retail Federation, and the Society for Human Resource Management.

The Daily Report's Greg Land reports on an issue of first impression in Georgia: does the public have a First Amendment right to attend a plastic surgeon's disciplinary hearing? Dr. Nedra Dodds had her license to practice medicine suspended after two of her patients died following liposuction treatments. The doctor doesn't want a local TV station to cover the hearing before an administrative law judge. The doctor's attorney argues that the privacy of information about patients bars public disclosure of Georgia Composite Medical Board disciplinary hearing, while the station's attorney argues patient privacy is not a compelling state interest that outweighs the public interest in a judicial proceeding.
 

The Ninth Circuit has ruled that the First Amendment rights of a video-game maker don't trump the rights former NFL players have to be compensated for the use of their avatars in the Madden NFL series, the Associated Press' Sudhin Thanawala reports. Courthouse News' Maria Dinzeo reports that the panel ruled that Electronic Arts can't "use incidental use as a defense for its depictions of football players in video games, ... rejecting the company's claims that the athletes' images add little commercial value." The panel also upheld a lower court ruling rejecting Electronic Arts' motion to strike the lawsuit under California's anti-SLAPP law.

A member of the grand jury that decided against indicting Ferguson Police Officer Darren Wilson in the death of Michael Brown is seeking to have the gag order on talking about the grand jury process lifted, alleging that the prosecutor Robert McCulloch handled the case differently than hundreds of other cases presented to the grand jury, The Huffington Post's Ryan J. Reilly reports. ACLU of Missouri Legal Director said in a statement that grand jury secrecy can be outweighed by a juror's First Amendment rights "'in cases where the prosecuting attorney has purported to be transparent,"' Reilly further reports.

Could the FAA's drone policies violate the First Amendment?, TechDirt's Mike Masnick asked in a post on Christmas Eve, citing a post from law professor Margot Kaminski. If the FAA can authorize Hollywood to use drones for commercial purposes on a pilot basis, why can't other drone operators fly their machines wihtout restrictions? "'The Supreme Court has long acknowledged that a too-discretionary licensing regime can raise serious First Amendment concerns. This is true even where a complete ban might be permissible,'" Kaminski noted.

The Massachusetts Supreme Judicial Court ruled that cyberharassment and lies posted online encouraging that bullying is not speech protected by the First Amendment, the Boston Herald reports. The court upheld the criminal harassment convictions of two real estate developers who arranged postings online to harass two business executives they were feuding with. The postings falsely claimed the couple had golf carts free for the taking and wanted to sell their "fictitious dead son’s Harley Davidson motorcycle for $300," the Herald further reports. The husband also was sent an email from a "make-believe former teenage male employee accusing him of sexual molestation."

The speech was unprotected, the court ruled, because their conduct was a "'hybrid of conduct and speech integral to the commission of a crime ... Their conduct served solely to harass the (victims) by luring numerous strangers and prompting incessant late-night telephone calls to their home by way of false representations, by overtly and aggressively threatening to misuse their personal identifying information, and by falsely accusing (the husband) of a serious crime.'"

The Fourth Circuit struck down North Carolina's requirement that doctors and ultrasound technicians perform an ultrasound at least four hours but not more than 72 hours before the abortion is to take place, display an image of the sonogram and "and specifically describe the fetus to any pregnant woman seeking an abortion, even if the woman actively 'averts her eyes' and 'refuses to hear,'" Slate's Dahlia Lithwick reports. The court ruled the requirement violates the First Amendment rights of healthcare providers. Doctors who did not follow the law could face damages and lose their licenses to practice, Lithwick also notes.

Judge J. Harvie Wilkinson III, who authored the opinion for the panel, is a conservative jurist and was shortlisted for John Roberts' seat as chief justice of the Supreme Court, Lithwick notes.

The ruling presents a circuit split with the Fifth and Eighth Circuits, which have upheld similar laws.

SCOTUSBlog's Amy Howe reports that, after oral argument in the U.S. Supreme Court today, there is no clear path for victory for Anthony Elonis or the federal government in a case testing the First Amendment boundaries of "true threats." At issue is whether Elonis' criminal liability for his violent, rap-like Facebook posts should be judged by whether he intended to place his ex-wife, an FBI agent and others in fear or if a reasonable person would perceive his posts as truly threatening.

Whether a subjective standard would actually protect more speech is an open question. In fact, Howe notes, "Justice Sonia Sotomayor was puzzled about whether there was actually any difference between the two standards. If you can infer someone’s state of mind from the circumstances 'of how and what was said in words,' she asked, isn’t the jury really looking at what a reasonable person would think anyway?"

Chief Justice John Roberts asked if the government's standard might result in prosecutions for violent rap lyrics and "did not appear" satisfied by the government's answer that rap artists wouldn't face prosecution because they are in the business of entertainment, Rowe further reports.

Justice Elena Kagan suggested a middle ground of a recklessness standard.