Justia U.S. 6th Circuit Court of Appeals Opinion SummariesArticles Posted in Communications Law
United States v. Howard
A man left a voicemail at former attorney general Holder's law firm, (Covington): Former U.S. Attorney General Eric Holder, I’m going to kill you. ... to murder you. My name is Atrel Howard. We had spoken in February of 2010. I was a United States unconstitutional convicted ... prisoner by the Common Pleas Court of Cuyahoga County ... through the second part of the clause of the double jeopardy law ... we had spoken. My name is Atrel Howard of Cleveland, Ohio. If you get this message you need to realize that I’m under unconstitutional law. ... I was sentenced to 50 months ... intentional assault of a federal agent or employee on the FBI agency premises. Howard was charged with the knowing and willful transmission in interstate commerce of a communication containing a threat to injure another, 18 U.S.C. 875(c). Covington’s server identified the caller as Atrel Howard, from a Cleveland, Ohio area code. An FBI agent and a probation officer were familiar with Howard’s voice. The telephone number belonged to Howard’s father. The jury instructions were jointly proposed by the parties. Convicted, Howard was sentenced to 30 months for his section 875(c) offense and his supervised release violation. The Sixth Circuit affirmed, rejecting arguments of insufficient evidence; that omitting the essential mens rea element violated Howard’s Fifth and Sixth Amendment rights and deprived the court of jurisdiction; and that the court erred in instructing the jury as to what type of communication would constitute a “true threat.” View "United States v. Howard" on Justia Law
Thomas v. Bright
Tennessee’s Billboard Act, enacted to comply with the Federal Highway Beautification Act, 23 U.S.C. 131, provides that anyone intending to post a sign along a roadway must apply to the Tennessee Department of Transportation (TDOT) for a permit unless the sign falls within one of the Act’s exceptions. One exception applies to signage “advertising activities conducted on the property on which [the sign is] located.” Thomas owned a billboard on an otherwise vacant lot and posted a sign on it supporting the 2012 U.S. Summer Olympics Team. Tennessee ordered him to remove it because TDOT had denied him a permit and the sign did not qualify for the “on-premises” exception, given that there were no activities on the lot to which the sign could possibly refer. Thomas argued that the Act violated the First Amendment. The Sixth Circuit affirmed that the Act is unconstitutional. The on-premises exception was content-based and subject to strict scrutiny. Whether the Act limits on-premises signs to only certain messages or limits certain messages from on-premises locations, the limitation depends on the content of the message. It does not limit signs from or to locations regardless of the messages. The provision was not severable from the rest of the Act. View "Thomas v. Bright" on Justia Law
Sensabaugh v. Halliburton
Sensabaugh, the former head football coach at David Crockett High School in Washington County, Tennessee, made two Facebook posts expressing his concerns about the conditions and practices of schools within the District. The posts included pictures of students. Sensabaugh refused to comply with requests to remove the posts and became aggressive with his supervisors who noted other alleged misconduct, including his use of profane language with students and his requiring a student to practice while injured. He was fired after a guidance meeting where his conduct caused his supervisor to report her concern “that Sensabaugh posed a threat to the safety of the students and staff.” He sued, raising First Amendment retaliation and municipal liability claims. The Sixth Circuit affirmed summary judgment in favor of the defendants, finding no causal connection between Sensabaugh’s Facebook posts and his termination. A thorough independent investigation preceded Sensabaugh’s termination; that investigation concluded that the misconduct allegations were substantiated in full or in part and that the misconduct supported termination. View "Sensabaugh v. Halliburton" on Justia Law
Posted in: Civil Rights, Communications Law, Constitutional Law, Education Law, Labor & Employment Law
Schmitt v. LaRose
Plaintiffs submitted proposed ballot initiatives to the Portage County Board of Elections that would effectively decriminalize marijuana possession in Garrettsville and Windham, Ohio. The Board declined to certify the proposed initiatives, concluding that the initiatives fell outside the scope of the municipalities’ legislative authority. Plaintiffs sued, asserting that the statutes governing Ohio’s municipal ballot-initiative process impose a prior restraint on their political speech, violating their First and Fourteenth Amendment rights. The district court permanently enjoined the Board of Elections and the Ohio Secretary of State, from enforcing the statutes in any manner that failed to provide for adequate judicial review. The Sixth Circuit vacated the injunction. A person or party may express beliefs or ideas through a ballot, but ballots serve primarily to elect candidates, not as forums for political expression. Heightened procedural requirements imposed on systems of prior restraint are inappropriate in the context of ballot-initiative preclearance regulations. The court applied the “Anderson-Burdick” framework and weighted the character and magnitude of the burden the state’s rule against the interests the state contends justify that burden and considered the extent to which the state’s concerns make the burden necessary. The state affords aggrieved ballot-initiative proponents adequate procedural rights through the availability of mandamus relief in the state courts. View "Schmitt v. LaRose" on Justia Law
Novak v. City of Parma
Novak created a “farcical Facebook account” that looked like the Parma Police Department’s official page. The page was up for 12 hours and published posts including a recruitment advertisement that “strongly encourag[ed] minorities to not apply.” and an advertisement for a “Pedophile Reform" event. Some of its about 100 followers thought it was funny. Others were angry or confused and called the police station. The Department posted a warning on its official Facebook page. Novak reposted that warning on his page, to “deepen his satire.” Novak deleted “pedantic comments” on his page explaining that the page was fake, The Department contacted Facebook requesting that the page be shut down and informed local news outlets. Novak deleted his creation. Based on a search warrant and subpoena, Facebook disclosed that Novak was behind the fake. The police obtained warrants to search Novak’s apartment and to arrest him, stating that Novak unlawfully impaired the department’s functions. Novak responded that, other than 12 minutes of phone calls, the police department suffered no disruption. Novak was acquitted, then sued, alleging violations of his constitutional and statutory rights. The district court dismissed in part, with 26 claims remaining. The Sixth Circuit granted the officers qualified immunity on claims related to anonymous speech, censorship in a public forum, and the right to receive speech were dismissed. View "Novak v. City of Parma" on Justia Law
Croce v. New York Times Co.
Croce, the Chair of Human Cancer Genetics at Ohio State University (OSU), has published over 650 papers during his 45-year career; 12 were subject to corrections and two more were withdrawn with Croce’s consent. New York Times reporter Glanz emailed Croce, asking to discuss “promising anti-cancer” research. After a meeting, Glanz emailed Dr. Croce, stating that the scope of the story had broadened and that Glanz had made records requests at OSU and other institutions. Glanz later sent a letter on Times letterhead to OSU and to Croce with pointed questions, many of which followed allegations made by others against Croce. Croce retained counsel and responded, denying the allegations as “false and defamatory.” Glanz sent another email that contained additional allegations. Croce’s counsel again responded, denying each allegation. Ultimately, the Times published an article on its website (and social media) with the title, “Years of Ethics Charges, but Star Cancer Researcher Gets a Pass”; and text, “Dr. Carlo Croce was repeatedly cleared by Ohio State University, which reaped millions from his grants. Now, he faces new whistle-blower accusations.” The article appeared on the front page and above the fold in the printed edition and detailed various allegations against and criticisms of Croce. Croce brought defamation, false light, and intentional-infliction-of-emotional-distress claims. The Sixth Circuit affirmed the dismissal of the claims. The article is a standard piece of investigative journalism that presents newsworthy allegations made by others, with appropriate qualifying language. View "Croce v. New York Times Co." on Justia Law
Bevan & Associates, LPA v. Yost
Ohio Revised Code 4123.88 addresses how workers' compensation claimant information is handled and protected by the Ohio Bureau of Workers’ Compensation and contains the solicitation ban at issue: “No person shall directly or indirectly solicit authority” (1) to “represent the claimant or employer in respect of” a worker’s compensation “claim or appeal,” or (2) “to take charge of” any such claim or appeal. The district court rejected Bevan's challenge on summary judgment. The Sixth Circuit reversed, concluding that the state has prohibited all solicitation, whether oral or written, by any person to represent a party with respect to an Ohio workers’ compensation claim or appeal and that such a prophylactic ban violates the First Amendment under the Supreme Court’s 1988 "Shapero" decision. The court rejected an argument that the constitutionally questionable language is part of a larger statutory scheme that Bevan allegedly violated by obtaining claimant information from the Bureau in an unlawful manner. Whether Bevan violated other statutory provisions governing disclosure of claimant information is not relevant to whether the solicitation ban itself is constitutional. The solicitation ban makes no distinction as to how the person doing the soliciting learned of the claimant’s information: it bans all solicitation regardless of where or how that information was obtained. The prohibition is repugnant to the First Amendment's free speech clause. View "Bevan & Associates, LPA v. Yost" on Justia Law
Louisiana-Pacific Corp. v. James Hardie Building Products, Inc.
Louisiana-Pacific produces “engineered-wood” building siding—wood treated with zinc borate, a preservative that poisons termites; Hardie sells fiber-cement siding. To demonstrate the superiority of its fiber cement, Hardie initiated an advertising campaign called “No Wood Is Good,” proclaiming that customers ought to realize that all wood siding—however “engineered”—is vulnerable to damage by pests. Its marketing materials included digitally-altered images and video of a woodpecker perched in a hole in Louisiana-Pacific’s siding with nearby text boasting both that “Pests Love It,” and that engineered wood is “[s]ubject to damage caused by woodpeckers, termites, and other pests.” Louisiana-Pacific sued Hardie, alleging false advertising, and moved for a preliminary injunction. The Sixth Circuit affirmed the denial of the motion. Louisiana-Pacific failed to show that it would likely succeed in proving the advertisement unambiguously false under the Lanham Act and the Tennessee Consumer Protection Act. View "Louisiana-Pacific Corp. v. James Hardie Building Products, Inc." on Justia Law
Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government
In 2018, the Sixth Circuit reversed the district court’s order granting a preliminary injunction that had enjoined Lexington-Fayette Urban County Government from enforcing Ordinance 25-2017, which restricts the delivery of “unsolicited written materials” to six enumerated locations and provides for civil penalties for violations. On remand, further proceedings were taken in the district court. The Sixth Circuit affirmed the district court in concluding that Ordinance 25-2017 constitutes a valid time, place, and manner regulation of speech. View "Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government" on Justia Law
Crosby v. Twitter, Inc.
In June 2016, Mateen entered the Pulse Nightclub in Orlando and opened fire, killing 49 people and injuring another 53. Victims and family members of deceased victims brought sought damages, not from Mateen, nor from ISIS, the international terrorist organization that allegedly motivated Mateen through social media, but from social media giants Twitter, Facebook, and Google under the Anti-Terrorism Act. Plaintiffs alleged ISIS used those social media platforms to post propaganda and “virtually recruit” Americans to commit terrorist attacks. Mateen allegedly viewed ISIS-related material online, became “self-radicalized,” and carried out the shooting. Following the attack, ISIS claimed responsibility. The complaint alleged aiding and abetting international terrorism, 18 U.S.C. 2333; conspiracy in furtherance of terrorism; providing material support and resources to terrorists, 18 U.S.C. 2339A, 2339B(a)(1); negligent infliction of emotional distress; and wrongful death The Sixth Circuit affirmed the dismissal of the suit. Plaintiffs’ complaint includes no allegations that Twitter, Facebook, or Google had any direct connection to Mateen or his action. Plaintiffs did not suggest that those defendants provided “material support” to Mateen. Without these connections, Plaintiffs cannot state a viable claim under the Act. View "Crosby v. Twitter, Inc." on Justia Law