Articles Posted in First Amendment

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Our previous blog post, we discussed the ramifications of posting online reviews anonymously. In that case, a state appeals court ruled that in order to enforce a subpoena for the identities of former employees who had commented anonymously on the workplace review site, the plaintiff must prove the falsity of the comments and suffer a financial loss. A similar issue was revisited by the courts in a situation where alleged defamatory remarks were made and photos in support of remarks were also retrieved by trespass onto the property by an incident of various online reviews and the defendant happened to be a landlord.

More specifically, the decision pertaining to this incident happened to be a real estate entrepreneur with properties in three different states  and claimed that Facebook pages and Twitter accounts, as well as, flyers distributed near his home, accused him of being a “greedy slumlord,” who subjected his tenants and neighborhoods to bad conditions. The defendants were sued because it hosted the web sites and possessed real estate interests which could potentially damage his business. The complaint alleged diversity jurisdiction.

Accordingly, plaintiff proceeded to file an ex parte motion for early discovery seeking to identify his critics. In these motions, any relevant section of law which could apply or the basis for his assertion of diversity jurisdiction was never mentioned. The other party wanted to move to dismiss and seek sanctions for frivolous litigation. It had to then be pointed out to the trial judge that the lawsuit pending before him lacked any jurisdiction, and was not a proper basis for the issuance of federal court subpoenas for that reason. Continue reading

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Posting online has become a norm in this tech savvy world that we live in.  For greater transparency in a review, some may choose to post anonymously in fear of ramifications if their name disclosure came about.  Just recently, the ability of an employer being able to find out which employee employer-rated an employer unfairly or inaccurately was assessed by the Courts. This is since some would argue that surely the law protects against outrageous false statements that harm an employer’s ability to recruit talent.  That is why a California appeals court recently ruled that businesses have to prove online comments are false and financially harmful before they can unmask anonymous critics via subpoenas.  It can thus be seen that the decision has First Amendment implications which safeguard people’s right to free speech and this was valued as being the greater consideration.

A suit under the anonymous posting was brought forwards for libel and for violating California law regarding online impersonation.  A request was placed for assistance from the courts in an ability to be able to retrieve the identity of the postings. Initially, the trial court turned the employer down and this was again examined by a California Court of Appeal.Subsequently, the lengthy opinion was issued and a conclusion was drawn indicating that to force a disclosure of the names, a plaintiff must state a legally sufficient cause of action comprising of the following elements of that cause of action:  (1) the courts determining these issues must ensure that reasonable efforts are made to notify the unknown defendants so they can respond and (2) the plaintiff’s pleading must specifically note the exact statements alleged to constitute defamation. Continue reading

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Because freedom of speech is one of our most cherished rights in this country, it’s not easy to file claims for defamation.

Our founding fathers saw the value of being able to speak freely and openly to and about each other, especially when it comes to public figures. It is an essential ingredient for a democracy, which is why it’s the very first amendment ever made to our constitution, and one that is constantly invoked by all parties in just about every political discussion.

Because such a high value has been placed on free and open discussion of public figures, those public figures have a higher burden of proof to bear when filing claims of defamation. Not only do they have to prove that the statement(s) in question was false, but that the person/entity who made the statement knew it was false at the time they published it, and that they did so with the intention of inflicting harm (financial or otherwise) on the person in question. Continue reading

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Online reviews can have a powerful effect on a business these days. Before trying a new product or service, the first thing most people do is check online for reviews other customers have posted about the company and/or their products/services. Websites like Yelp were invented for that very purpose, but reviews have spread to other places online, including Google and social media platforms, such as Facebook and Twitter.

In addition to showing users individual reviews, they generally also display an average rating out of five stars at the top, and just a few one- or two-star reviews is all it takes to have a significant effect on a company’s overall ranking.

Because you’re never going to please everyone, companies have started retaliating against these negative reviews by putting “gag” clauses in their contracts with their customers. These are generally included in the Terms of Service, which most people accept without reading. Our time is limited and few people see the point in reading through a lengthy contract every time they go to buy something or view a website (in some cases, companies state that simply using a site counts as agreeing to their terms of service).

But companies have been enforcing these “gag rules,” whether customers were aware of them or not. Some of them charge a fine for each negative review. At least one company sued a couple for an exorbitant $1 million for posting a one-star review. That case was dismissed, but even such outlandish cases require people to spend the time and money to defend themselves in court – or take down their reviews. Continue reading

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Many people and organizations have long tried to get the NFL team known as the Redskins to change their name. The name is certainly offensive to most Native Americans and is a racial slur, but it’s not illegal to use it.

The football team has maintained a trademark on the Redskins name since 1967, but when they went to renew it in 2014, the trademark office refused, saying the name disparaged Native Americans. The team sued the trademark office in Virginia, where a trial judge ruled in favor of the trademark office. The team appealed the decision to the United States Court of Appeals for the Fourth Circuit, which is also located in Virginia, but that court put off ruling on the case until after the U.S. Supreme Court had given its ruling on Matal v. Tam, in which an Asian-American dance-rock band is seeking a trademark for their name: the Slants.

While the trademark office insisted the name was offensive, the band members said that was not their intention in coming up with the band’s name. Instead, they were looking to empower themselves and other Asian Americans by repurposing a derogatory term, much like the way homosexuals have taken ownership of the term “queer.”

All eight of the judges were unanimous in ruling in favor of the Slants, though their reasoning differed (Neil Gorsuch was not included in the decision, as the hearing was in January, prior to his appointment). Half the judges maintained a ban on trademarks for disparaging names would be in violation of the First Amendment, even when taking into account that judicial scrutiny for commercial speech tends to be relatively relaxed compared to other forms of speech. The judges pointed out that the First Amendment protects all speech, however hateful or offensive. Continue reading

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No one makes accusations of sexual assault lightly. Women who come forward with claims that men (especially famous men) sexually harassed and/or assaulted them face ridicule and threats to do so without serious consideration. And yet women who do come forward to accuse men of sexual assault are often harassed and accused of making up stories to get attention.

One woman recently sued President Trump for defamation and has faced such a back lash and now the President claims he is immune from her libel suit during the term of his Presidency.

Summer Zervos, a California restaurant-owner who was on “The Apprentice” in 2006, alleged Trump sexually assaulted her when she met with him in 2007 to discuss a potential job with the Trump Organization.

During his presidential campaign, numerous women came forward to say that Trump had sexually assaulted them, especially after a video was released in which Trump bragged about women letting him grab them because he was famous. Trump has asserted that all the women accusing him of sexual assault were making up stories and spreading lies about him.

Zevos filed a lawsuit in New York State Court alleging Trump’s very loud and very public dismissal of her accusations defamed her and she is seeking the appropriate compensation as a result. Continue reading

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The First Amendment of the U.S. Constitution gives everyone the right to speak freely about virtually everything and everyone, so long as what they say is not false or doesn’t infringe on intellectual property rights. People are free to voice opinions that do not contain factually false information. This protection includes negative reviews of companies providing products and services, but many legislators currently feel that consumers are in need of an extra layer of protection.

The internet and review sites like Yelp have made it easier than ever for customers to post public reviews of companies as soon as the transaction has been completed. While that may not sound threatening, a few bad reviews can significantly decrease a company’s overall rating and hinder future business, even when the subject of the complaint is insignificant and arbitrary.

So businesses have started retaliating by including clauses in their consumer contracts that forbid their customers from posting negative online reviews. Some companies have even acted on their threats by taking legal action against consumers who post negative reviews, usually for unreasonably large amounts of money when compared the transaction in question. For example, one hotel in New York charged $500 per negative review posted to Yelp, while another company sued a couple in Utah for thousands of dollars over a negative review pertaining to a small purchase. Continue reading

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They say imitation is the highest form of flattery, but Louis Vuitton doesn’t seem to think so.

The luxury brand has filed numerous trademark infringement lawsuits against small companies that parody the designer bags in some way. The lawsuits have been so far fetched as to have been called “bullying” and one judge even laughed out loud at some of the claims Louis Vuitton was making.

The latest such lawsuit to gain media attention was filed against a small company called My Other Bag that made inexpensive, canvas bags with “My Other Bag” printed on one side and a parody of a well-known luxury bag printed on the other side. In the case of Louis Vuitton, the print evoked the famous Vuitton bag design, but the LV emblem was replaced by MOB. My Other Bag also sells canvas bags that include parody prints of other luxury bags, but Louis Vuitton was the only one to file a lawsuit.

Trademark infringements like this one are generally considered to be a bullying tactic because they involve a giant company filing a practically baseless lawsuit against a much smaller company that’s not even operating in the same market. While the canvas bags have been promoted as great for things like carrying groceries and going to the beach, true Louis Vuitton bags are more likely to be used by women carrying around their personal effects to high-end shops, restaurants, and entertainment venues. They’re the kinds of bags to be shown off, whereas the canvas bags are clearly meant to be fun and practical and used in more casual settings. Continue reading

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Few people take much of what Trump says seriously, especially when he goes on one of his Twitter rants. According to Judge Barbara Jaffe, a New York judge, that includes allegedly defamatory remarks Trump makes about people who criticizes him.

In the spring of 2015, Cheryl Jacobus, a public relations consultant, was allegedly invited by Trump’s campaign to interview for the position of communications director for the campaign. Jacobus said she declined because she did not want to work for Corey Lewandowski, Trump’s campaign manager at the time.

More than six months later, Jacobus went on television to question Trump’s motives for threatening to not attend presidential debates, as well as his claims that he was completely funding his own campaign. She criticized his debating skills and insulted his intelligence. Trump, as always, fired back on Twitter.

Trump’s tweets claimed Jacobus “begged” his campaign to hire her and they turned her down. He also implied she was merely disgruntled from having been rejected and that was why she was making the negative comments about Trump on TV. Furthermore, Trump also claimed Jacobus had no credibility. Continue reading

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With all the hate crimes going on these days, it can be hard sometimes to remember that it’s the 2010s and not the 1960s, but strides have been made and there are laws in place to protect everyone’s right to life, liberty, and the pursuit of happiness, regardless of their race or ethnicity.

A resident of Mount Prospect, Illinois recently allegedly violated some of these rights granted to the members of an African-American family that moved in to her neighborhood. The members of the family in question (Iris Howe and her grown children, Samuel Mobley and Sidney Powell) filed a civil lawsuit against their neighbor, Terry Calliari, for allegedly making them the targets of racial harassment.

According to the civil complaint, Calliari allegedly made repeated use of racial slurs, tried to prevent Howe and her children from using the pool included in the complex, followed them, and blocked their paths with her car. The lawsuit alleges the harassment began the day they moved in – when Calliari allegedly used a racial epithet to refer to her new neighbors – and continued for the next five years.

In those five years, the civil lawsuit alleges that Calliari’s persistent racial harassment against the family prevented them from enjoying their basic rights to enjoy their own home, personal property, and community in peace. Continue reading