Articles Posted in First Amendment

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Introduction

In an era marked by rapid technological advancements and the omnipresence of the internet, the boundaries of free speech have become more ambiguous than ever before. In the United States, the First Amendment safeguards the freedom of expression, including the freedom of the press. However, this freedom is not absolute, and there are instances where speech can cross the line into libel, damaging reputations and causing harm. To address this evolving landscape, the United States Supreme Court has issued several groundbreaking opinions on libel in recent years. In this blog post, we will explore some of these significant rulings and their implications for free speech in the digital age.

  1. New York Times v. Sullivan (1964) – Setting the Standard

Before delving into the recent opinions, it’s essential to understand the foundational case of New York Times v. Sullivan. This landmark decision established a higher standard for public figures to prove libel. To succeed in a libel lawsuit, public figures must demonstrate “actual malice,” which means that the defamatory statement was made with reckless disregard for the truth. This precedent has been pivotal in protecting freedom of speech, ensuring that robust public debate can take place without fear of crippling defamation suits.

  1. Milkovich v. Lorain Journal Co. (1990) – Opinions or Factual Statements?

In the case of Milkovich v. Lorain Journal Co., the Supreme Court grappled with the distinction between opinions and factual statements. The ruling clarified that even statements of opinion can be considered libelous if they imply false facts. This decision underscored the importance of fact-checking and journalistic integrity in the world of media and journalism. Continue reading ›

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Among the many legal battles involving Donald Trump these days is a recent lawsuit in which Trump sued his niece, Mary Trump, along with the New York Times for reporting on his tax records in 2018. The series of articles accused Trump of engaging in tax schemes and cast doubt on his claims of being a self-made millionaire. The reporting earned a Pulitzer Prize, but Trump alleges it was all part of a plot to uncover confidential records. The lawsuit was filed in 2021 and is seeking $100 million in damages, but the judge dismissed the legal action against the newspaper.

The First Amendment to the U.S. Constitution protects the right to free and open discussion, especially when it comes to public figures. The founding fathers wanted to encourage the public release of information around public figures with the idea that it would give the public access to more information about the people they were electing to represent them.

It’s a critical ingredient to our democratic system, which is why it’s more difficult for a public person to successfully sue for defamation, especially when they’re going up against a news organization. That’s why New York Supreme Court Justice Robert Reed dismissed Trump’s claims against the newspaper, saying they had no basis in constitutional law. He added that the reporting in question was nothing more than routine newsgathering, and as such, is protected by the First Amendment. Continue reading ›

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In a decision dealing with prior restraints on speech, the First District Appellate Court recently held that the trial court overstepped federal and state constitutional bounds when it ordered a company and its president to refrain from making any future online statements about a vendor the company had hired. The First District vacated the order entered by Cook County Circuit Judge Diane M. Shelley and issued an opinion explaining why the trial court’s order violated longstanding constitutional principles of free speech.

The plaintiff, Same Condition, LLC is a company that sought to create a web-based, medical patient-centered software application. Same Condition’s president, Munish Kumar, was a counter-defendant in the suit. Same Condition hired the defendant, Codal, Inc., to develop its software application. Codal allegedly failed to deliver the software application on time and when it did, Same Condition found the software to be unacceptable.

In May 2019, Same Condition sued Codal for breach of contract, among other claims. Codal then countersued Same Condition and Kumar for defamation per se, defamation per quod, violation of the Uniform Deceptive Trade Practices Act and commercial disparagement based on critical comments and reviews that Same Condition and Kumar had posted online. Continue reading ›

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In a recent decision, the Seventh Circuit clarified the proper standard for deciding a motion for summary judgment. Many litigants and lawyers alike believe that the existence of a factual dispute is sufficient to stave off summary judgment and proceed to trial. However, the Seventh Circuit took the opportunity to reaffirm once again that the existence of factual disputes alone will not preclude summary judgment. Instead, the facts in dispute must be material in nature to prevent entry of summary, often referred to by courts as “genuine issues of material fact.” While acknowledging the existence of factual disputes aplenty in the First Amendment suit, the Seventh Circuit nonetheless ruled that the District Court properly entered summary judgment for the defendants because the plaintiff failed to identify any genuine issues of material fact in the case.

The plaintiff company lost its business licenses to operate two restaurants in the small Chicago suburb of Worth after supporting a political candidate running against the incumbent Village President, Mary Werner. After losing its business licenses, the company, FKFJ, Inc., filed suit against the Village of Worth and Werner under 42 U.S.C. 1983, alleging that the Village and Werner violated its First Amendment rights by retaliating against the company for supporting Werner’s opponent in the election. The case proceeded through discovery and the defendants then filed for summary judgment. FKFJ opposed summary judgment arguing that there were numerous factual disputes in the case. Despite FKFJ’s contention, the District Court granted summary judgment for the Village and Werner.

FKFJ appealed the entry of summary judgment arguing that the District Court erred by ignoring genuine disputes of material fact and making improper credibility determinations at the summary judgment stage. In support of its appeal, FKFJ pointed to a number of factual disputes that it claimed precluded the entry of summary judgment in the case. FKFJ argued that the issue of whether Werner possessed ill-will toward the plaintiff and its owners was a factual dispute sufficient to defeat a motion for summary judgment. Continue reading ›

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News conglomerate Fox News finds itself fighting against not one, but two multi-billion dollar defamation lawsuits over its post-2020 election reporting. The plaintiffs in these lawsuits are the companies that ran electronic voting machines used during the election. In their complaints, the plaintiffs accuse Fox News and its on-air hosts of engaging in a smear campaign against them which involved making numerous false statements accusing the companies of engaging in a criminal conspiracy to change votes and decide the outcome of the 2020 election in favor of now-President Joe Biden. Fox News has countered that all of its allegedly defamatory statements are protected under the First Amendment as statements about matters of public concern. One of the companies, Smartmatic, has responded, arguing that Fox News’ statements were calculated falsehoods and thus enjoy no First Amendment immunity.

According to Smartmatic, it was founded in 2000 “to bring secure technology to elections and build an election technology company that could ensure accuracy, transparency, and auditability.” Smartmatic claims that the 2020 election was intended to be the launching point for the company as it had been selected to run the electronic voting for Los Angeles County. Days after the election, Smartmatic alleges, Fox News embarked on a disinformation campaign against it. In the weeks following the 2020 election, Smartmatic claims that Fox News broadcast 12 shows, posted 9 videos and transcripts online, and posted 20 comments and videos on social media about Smartmatic. Many of these references to Smartmatic allegedly involve accusations that it rigged the election against then-President Trump.

Additionally, Smartmatic claims that Fox News repeatedly invited then-President Trump’s attorneys, Rudy Giuliani and Sidney Powell, onto its broadcasts where Guiliani and Powell allegedly stated that Smartmatic was founded to “fix elections” and “alter votes,” its technology is “extremely hackable,” it was “banned by the United States,” its technology was “corrupt” and “switched votes,” it has an “algorithm” used to “modify the votes,” and Smartmatic was part of “one huge criminal conspiracy” to manipulate the 2020 election. Smartmatic filed suit against Fox News, several of its on-air hosts, Guiliani, and Powell seeking $2.7 billion in damages, making it one of the largest defamation complaints ever filed. Continue reading ›

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The Supreme Court recently issued a major ruling in a dispute over free speech on the grounds of a public college. By a vote of 8-1, with Chief Justice Roberts as the lone dissenter, the Court held that a Georgia student’s claims of violations of his First Amendment rights against college officials were not mooted by the school’s decision to abandon the speech restrictions at issue. Specifically, the Court found that the student had standing to proceed with his First Amendment lawsuit even though the student was only seeking nominal damages in the suit. The case had long been on the radar of First Amendment advocates and resulted in a unique confluence of support for the plaintiffs from both ends of the ideological spectrum (and many in between) with numerous liberal and conservative groups submitting a raft of amicus curiae urging the Court to rule in favor of the plaintiffs.

The case, Uzuegbunam v. Preczewski, was brought by two students at Georgia Gwinnett College, a public college in Georgia located in the Atlanta suburb of Lawrenceville. The college had a campus policy that restricted public speaking and distribution of written materials to only two designated “free speech expression areas” and required a permit to do so. According to the lawsuit, these speech zones occupied less than 0.0015% of the campus, and are open only 18 hours a week.

One of the plaintiffs, Chike Uzuegbunam, is an evangelical Christian who was handing out religious literature on the campus when a campus police officer told him that he could only distribute literature by reserving one of the two designated free speech areas. The complaint alleges that Uzuegbunam followed the officer’s instructions and obtained a permit, but, within a few minutes of starting to hand out literature and discuss his religious beliefs, another officer told Uzuegbunam that he must stop as his speech was disturbing others and therefore violated the college’s “disorderly conduct” policy which prohibited any speech, even in the free speech zones, that “disturbed the peace and/or comfort of person(s).” Continue reading ›

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Online review sites such as Yelp have been the bane of companies’ existence ever since they first started popping up on the internet. While businesses work hard to provide each of their customers with the best experience possible, one can never please everyone, and the displeased will inevitably turn to the internet to vent their frustration for all potential clients to see. As problematic as that is for any business (especially small businesses), is suing customers who leave a bad review really the answer?

Lisa Agostino, of Macomb County, Michigan, is being sued by North Wind Heating and Cooling for leaving a bad review of the company on Yelp.

In her review, Agostino said she was overcharged for the air conditioner capacitator the company installed for her. Continue reading ›

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This year marks one hundred years since the birth of modern First Amendment jurisprudence. In 1919, as the United States was recovering from the effects of World War I, the U.S. Supreme Court grappled with a series of cases involving the speech of political dissidents charged with violating federal laws designed to quell criticism of the U.S. war effort, draft, or policy toward foreign nations.

The first of the free speech cases that came before the Supreme Court in 1919 was Schenck v. United States. The Schenck defendants were convicted for violating the Espionage Act of 1917 for distributing leaflets that criticized the draft and supported that position by reciting language from the 13th Amendment. Writing for a unanimous court, Justice Oliver Wendell Holmes affirmed the defendants’ convictions, reasoning that what can be said in times of peace may not be legal during times of war. In short, the First Amendment had limits.

Holmes reasoned that, “[t]he character of every act depends upon the circumstances in which it is done,” which he followed with the now-famous hypothetical of “a man in falsely shouting fire in a theatre and causing a panic.” Holmes’s opinion was also noteworthy in that it introduced the “clear and present danger” test which became the test applied by courts in First Amendment cases for the next five decades.

Perhaps the most impactful opinion to come from the 1919 free speech cases was Justice Holmes’s dissent in Abrams v. United States­—a dissent that has come to be known as the “great dissent.” Few could have known at the time Justice Holmes penned his dissent that his words would begin shaping the contours of our understanding of the First Amendment and the freedoms guaranteed by it—freedoms that are considered by many around the world to be quintessentially American.

The Abrams case was not particularly noteworthy. It was in many respects a repeat of Schenck. And like Schenck, the convictions of the defendants charged with violating the Sedition Act of 1918 were upheld. But despite coming only a few months apart, Justice Holmes voted to uphold the convictions in Schenck and to overturn the convictions in Abrams. What was the difference? Continue reading ›

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Earlier this month, the Supreme Court hear arguments in a case that will decide the fate of a federal prohibition against granting trademark protection to immoral or scandalous material. The case Iancu v. Brunetti involves a lawsuit initiated by Los Angeles street artist Erik Brunetti who sought to challenge the U.S. Patent and Trademark Office’s decision not to register the trademark for his “FUCT” clothing line. His application had been denied, as deputy solicitor general Malcolm Stewart, who was defending the law, delicately put it, because it “would be perceived by a substantial segment of the public as the equivalent of the profane past participle form of. . . perhaps the paradigmatic word of profanity in our language.”

The U.S. Court of Appeals for the Federal Circuit struck down the century-old ban on granting trademark protection to “scandalous” and “immoral” trademarks reasoning that the ban constituted a First Amendment violation. In its December 15, 2017 decision, the Federal Circuit found that the board was correct in determining that the trademark was immoral or scandalous but that the statute’s “bar on registering immoral or scandalous marks is an unconstitutional restriction of free speech.” The Department of Justice wants the Supreme Court to reverse that decision.

The Supreme Court expressed disdain for the public display of vulgarity but seemed reluctant to use federal trademark law to stop it. The government cannot stop Brunetti from selling his wares, Solicitor General Noel J. Francisco told the court in the government’s petition and the Justice Department conceded at oral argument, also taking time to highlight the fact that Brunetti’s clothing was available even in children’s and infants’ sizes. The Justice Department attempted to frame the issue, however, not as to whether Brunetti could sell the clothing but whether the mark deserves federally registered status. Continue reading ›

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Late last month, the family of Nicholas Sandmann filed a defamation lawsuit against The Washington Post seeking $250 million in damages (roughly the amount Jeff Bezos paid to purchase the newspaper in 2013). Sandmann is the Covington Catholic High School teenager whose standoff with Native American activist Nathan Phillips went viral earlier this year. According to the lawsuit, the Post allegedly defamed Sandmann by initially describing Sandmann as the instigator of the confrontation with Phillips and for portraying Sandmann as “engaged in acts of racism by ‘swarming’ Phillips, ‘blocking’ his exit away from the students, and otherwise engaging in racist misconduct.”

Sandmann was one of a number of students from Covington Catholic High School who were wearing red “Make America Great Again” hats during a trip to the National Mall when they encountered Phillips. A media firestorm surrounding Sandmann kicked off following an online video depicting an apparent standoff between Sandmann and Phillips near the Lincoln Memorial. Comments online and on Twitter following the release of the video were quick to brand Sandmann and to a lesser extent the other Covington students shown in the video, as MAGA bigots. News accounts, including in The Washington Post, of the confrontation, sparked a media firestorm and national debate over the behavior of the participants.

Additional video footage, however, seemed to complicate the characterization of Sandmann as a bigot or the instigator of the confrontation with Phillips. Ultimately, several prominent media outlets and personalities issued apologies for having rushed to judgment. The Sandmann family, however, has contended that the alleged harm to their son’s reputation and standing in the community was already done and is demanding both compensatory and punitive damages. Continue reading ›

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