First Amendment

Illinois Appellate Court Finds Order Restraining Speech Violates First Amendment, Unconstitutional

January 15, 2022 | Peter S. Lubin and Patrick Austermuehle

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 ›

Seventh Circuit Finds Factual Disputes not Material Affirms Summary Judgment in First Amendment Suit

October 30, 2021 | Peter S. Lubin and Patrick Austermuehle

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 ›

Smartmatic Challenges Fox News’ First Amendment Defense in $1.2 Defamation Lawsuit

July 12, 2021 | Peter S. Lubin and Patrick Austermuehle

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 ›

Supreme Court Clarifies Standing Requirements in First Amendment Cases

April 9, 2021 | Peter S. Lubin and Patrick Austermuehle

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 ›

Lawsuit Over Yelp Review Raises Questions of Defamation vs First Amendment Rights

October 16, 2019 | Peter S. Lubin and Patrick Austermuehle

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 ›

From Clear and Present Danger to Imminent Lawless Action: 100 Years of First Amendment Jurisprudence — Best Chicago Libel Defamation and Slander Lawyers Near Oak Brook and Naperville

May 18, 2019 | Peter S. Lubin and Patrick Austermuehle

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 ›

Supreme Court Considers Issue of Vulgar Trademarks — Chicago First Amendment Lawyers

May 7, 2019 | Peter S. Lubin and Patrick Austermuehle

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 ›

MAGA Kid Sues The Washington Post for $250 Million for Defamation — Best DuPage County Slander Libel and Defamation Attorneys

March 11, 2019 | Peter S. Lubin and Patrick Austermuehle

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 ›

Lubin Austermuehle Continues its Partnership as One of Viriant’s Preeminent Law Firms as Part of a Nationwide Network to Stop Cyber Smears and Anoymous Postings Attacking Businesses and Professionals — Chicago Reputation Defenders and Internet Defamation Lawyers

February 3, 2019 | Peter S. Lubin and Patrick Austermuehle

Lubin Austermuehle and Viriant’s Combined Efforts Help Remove Defamatory Internet Posts

Lubin Austermuehle is among a handful of leading lawyers from across the country picked as a member of Viriant’s nationwide network to protect companies, doctors, lawyers, accountants and other professionals from defamation on the cyber smears and internet defamation. We are excited to announce the continuation of our longtime partnership with Viriant.

Lubin Austermuehle has over thirty years of experience representing large and small businesses, and professionals such as lawyers in doctors in protecting their businesses from harmful online defamation and cyber smear attacks. We recently obtained a full retraction and apology for our large diamond wholesale client who was exposed to a sustained and targeted internet smear campaign. We filed libel per se suit against the perpetrator for $16 million and demanded the retraction and apology as a settlement term. You learn more about that suit here.

Personal Jurisdiction and First Amendment Defenses in Cyber Smear and Internet Defamation Cases — Top Chicago Internet Defamation Lawyers Near Oak Brook and Naperville

February 2, 2019 | Peter S. Lubin and Patrick Austermuehle

We defend and prosecute cyber smear and internet defamation cases throughout the Chicago area including near Schaumburg, Aurora, and Wheaton.

We have defeated claims against our clients with a number of creative defenses founded on the First Amendment, Innocent Construction or personal jurisdiction defenses. We have also prevailed against such defenses for our libel plaintiff clients who have pursued defamations and slander claims. We have obtained removal from the internet of commercially defamatory reviews against our business and professional services clients such as doctors and lawyers posted on internet review sites such as Google and Yelp.

You can view here a decision in an internet defamation case involving a negative review on the Rip-Off Report where we successfully defended our client by obtaining a dismissal based on lack of personal jurisdiction. For a detailed discussion of the personal jurisdiction defense in internet defamation cases, you can go to our website.

You can view here a Yelp review by our client of our firm regarding the result we obtained in winning her case. This client was wrongfully sued for negative Yelp and other reviews against a daycare center that had been closed down by the Department of Children and Family Services for alleged negligent care of young children.

The Digital Media Law Website is a great resource for non-lawyers to learn about defamation law. It defines defamation as follows:

Defamation

Defamation is the general term for a legal claim involving injury to one’s reputation caused by a false statement of fact and includes both libel (defamation in written or fixed form) and slander (spoken defamation). The crux of a defamation claim is falsity. Truthful statements that harm another’s reputation will not create liability for defamation (although they may open you up to other forms of liability if the information you publish is of a personal or highly private nature).

Defamation in the United States is governed by state law. While the U.S. Constitution sets some limits on what states can do in the context of free speech, the specific elements of a defamation claim can — and often do — vary from state to state. Accordingly, you should consult your state’s law in the State Law: Defamation section of this guide for specific information.

There are many defenses to defamation and slander claims. Our lawyers concentrate in this area and can provide our clients — both plaintiffs and defendants — with considerable resources to guide their claims through the intricacies of these defenses. You can go to our two websites to learn more about theses defenses here and here.

Here is a video regarding a client we defended in an internet defamation claim. We settled federal court case in favor of our client after we filed a sanctions motion against the used car dealer plaintiff for filing an allegedly false lawsuit; our client received a full release and all of his videos and negative video reviews remained on the internet after we won an arbitration proceeding against the dealer which was part of the settlement of the federal court suit dismissing all of the claims. Here is a new story about the case.

You can read the Arbitrator’s decision upholding our client’s rights to keep his videos posted on the internet here. While the Arbitrator disagreed with our client’s tactics and did not endorse his conduct, he found our client had a First Amendment Right to speak his mind as long as he told the truth or simply voiced his opinions no matter how negative. The Arbitrator held as follows based on our cross-examination of the Claimant’s owner proving that our client had told the truth when he claimed that the Claimant auto dealership had engaged in consumer fraud in the past and that our client had only made minor errors in his hundreds of postings and video reviews on Youtube of the auto dealership:

There is no issue that Claimant has engaged in false advertising. [It’s owner] has admitted as much and more, including submitting a false affidavit in litigation antecedent to this arbitration. Judgments and pleadings are public records; disseminating this information that is part of a public record is not actionable. In addition, the fact of entry of judgment provides a colorable foundation for the opinions and conclusions published by Bates. As much as the Claimants would like to explain away these events, and as minor a part this conduct has played in comparison with the totality of business operations, the facts are what they are; once in the public domain these facts can be both circulated and commented on. In addition, insignificant errorata is not actionable in any event, and it is conceded that many postings are of this character.