Justia U.S. 6th Circuit Court of Appeals Opinion Summaries

An Ohio State Dental Board-recognized specialist must complete a postdoctoral education program in a specialty recognized by the American Dental Association and limit the scope of his practice to that specialty. The use of the terms “specialist”, “specializes” or “practice limited to” or the terms “orthodontist”, “oral and maxillofacial surgeon”, “oral and maxillofacial radiologist”, “periodontist”, “pediatric dentist”, “prosthodontist”, “endodontist”, “oral pathologist”, or “public health dentist” or similar terms is limited to licensed Board-recognized specialists.. Any general dentist who uses those terms in advertisements can have his dental license placed on probationary status, suspended, or revoked. Kiser, a licensed dentist with postdoctoral education in endodontics (root-canal procedures). does not to limit his practice exclusively to endodontics. The Board’s regulations treat him as a general dentist. He is banned from using the word “endodontist” in his advertisements. In 2009, the Board warned Kiser with respect to the regulations, but did not take further action. In 2012, Kiser requested that the Board review signage that would include the terms “endodontist” and “general dentist.” The Board neither approved nor rejected Kiser’s proposed signage, but recommended that he consult legal counsel. Kiser challenged the regulations as violating: the First Amendment right to commercial speech; substantive and procedural due process; and equal protection. The district court twice dismissed Kiser’s claims. The Sixth Circuit reversed in part, finding that Kiser had stated viable claims with respect to the First Amendment, substantive due process, and equal protection. View "Kiser v. Kamdar" on Justia Law

O’Kroley googled himself and found “Texas Advance Sheet,” followed by “indecency with a child in Trial Court Cause N . . . Colin O’Kroley v Pringle.” O’Kroley was never involved in an indecency case; his case was listed immediately after such a case, on a service that summarizes judicial opinions. If users clicked the link they would see that the cases were unrelated. Claiming “severe mental anguish,” O’Kroley sued Google for $19,200,000,000,000, asserting “libel,” “invasion of privacy,” “failure to provide due process,” “cruel and unusual punishment,” “cyber-bullying,” and “psychological torture.” The court dismissed, citing the Communications Decency Act, which insulates interactive computer services from certain lawsuits, 47 U.S.C. 230. The Sixth Circuit affirmed. Google is an interactive computer service, providing “access by multiple users to a computer server,” not the publisher or speaker of the allegedly defamatory content. A separate “entity [was] responsible . . . for the [content’s] creation.” Google cannot be held liable for merely providing access to, and reproducing, the allegedly defamatory text. “ Google performed some automated editorial acts on the content, such as removing spaces and altering font, and kept the search result up even after O’Kroley complained; these acts come within “a publisher’s traditional editorial functions.” View "O'Kroley v. Fastcase, Inc" on Justia Law

A 2012 event at Allegan High School was intended to educate the public about House Bill 4769, which aimed to limit foreign law’s influence in Michigan. The organizers wanted to warn citizens about the “internal threat to America posed by radical Muslims” and “the dangers ... of Sharia law.” The District agreed to rent the organizers a room. They paid the customary $90 fee. Objectors wrote a letter arguing that the speaker, Saleem, was a purveyor of hatred and asked the district to rescind its permission. The School received calls expressing the same view; the event received local press coverage. Shortly before the event began, an unidentified woman approached the police, claiming that Saleem had a $25 million bounty on his head. Saleem’s body guard discounted the threat. The event began. When it was underway, authorities shut it down. The organizers allege that people were allowed to stay in the building for 30-45 minutes and that Saleem remained inside without law enforcement surveillance. The organizers filed suit under 42 U.S.C. 1983. The Sixth Circuit affirmed dismissal of claims against the city, for lack of evidence of an applicable municipal policy or custom, and reversed and remanded an order allowing the school district to withdraw its Fed.R.Civ.P. 68 offer to stipulate to judgment of $500. View "Agema v. City of Allegan" on Justia Law

Alco, a vending machine company, contracted with B2B, a “fax broadcaster,” in 2005, and dealt with B2B and Macaw, a Romanian business, that worked with B2B. Each sample advertisement provided by B2B stated that the message was “the exclusive property of Macaw . . . , which is solely responsible for its contents and destinations.” According to Alco, B2B was to identify recipients from a list of businesses that had consented to receive fax advertising from B2B. Alco never saw this list, but believed that each business would be located near Alco’s Ohio headquarters, and had an existing relationship with B2B, so that the advertising would be “100 percent legal.” B2B broadcast several thousand faxes, advertising Alco. According to Alco, B2B did not inform Alco about the number of faxes, the dates on which they were sent, or the specific businesses to which they were addressed. After each broadcast, Alco received complaints of unauthorized faxes in violation of the Telephone Consumer Protection Act 47 U.S.C. 227(b)(1)(C), which it referred to B2B. Siding filed a purported class action against Alco. The district court rejected the suit on summary judgment. The Sixth Circuit reversed and remanded for determination of whether B2B broadcast the faxes “on behalf of” Alco, considering the degree of control that Alco exercised, whether Alco approved the final content, and the contractual relationship. View "Siding and Insulation Co. v. Alco Vending, Inc." on Justia Law

HCEA was recognized under the Tennessee Education Professional Negotiations Act (EPNA) as the exclusive representative of Hamilton County Board of Education professional employees. In 2011, HCEA and the Board entered into a collective bargaining agreement (CBA), to expire in June 2014. While this agreement was in effect, Tennessee enacted the Professional Educators Collaborative Conferencing Act, replacing EPNA. PECCA would not govern the parties’ relationship until the expiration of their existing agreement. HCEA and the Board entered into the latest version of their CBA under EPNA in September 2013. PECCA created a new category: “management team” members, including principals and assistant principals, no longer considered “professional employees” entitled to participate in concerted activities as part of professional employee organizations. PECCA also made it unlawful for a professional employee organization to “[c]oerce or attempt to intimidate professional employees who choose not to join a professional employee organization.” Communications following HCEA’s September 2013 monthly meeting resulted in a Board letter, requesting that HCEA “refrain from … negative or coercive statements.” HCEA filed suit, alleging violation of EPNA and the First Amendment. The Sixth Circuit affirmed summary judgment favoring the Board. EPNA claims were not rendered moot by PECCA’s intervening effective date, but the letter did not violate EPNA. It contained no threat of reprisal and did not significantly burden HCEA’s expressive activity. View "Hamilton Cnty. Ed. Ass'n. v. Hamilton Cnty. Bd. of Educ." on Justia Law

In 2010 the IRS began to pay unusual attention to applications for exemption from federal taxes under Internal Revenue Code 501(c) coming from groups with certain political affiliations. It used "inappropriate criteria" to identify organizations with "Tea Party’" in their names, expanded the criteria to include "Patriots and 9/12," and gave heightened scrutiny to organizations concerned with “government spending, government debt or taxes,” “lobbying to ‘make America a better place to live[,]’” or “criticiz[ing] how the country is being run[.]” The IRS used a “‘Be On the Lookout’ listing” for more than 18 months. Applicants flagged by the criteria were sent to a “team of specialists,” where they experienced significant delays and requests for unnecessary information. The IRS demanded that many groups provide names of donors; a list of issues important to the organization and its position regarding such issues; and political affiliations. After the release of the Inspector General’s report, the plaintiffs sued, citing the Privacy Act, 5 U.S.C. 552a, the First and Fifth Amendments, and the Internal Revenue Code’s prohibition on the unauthorized inspection of confidential “return information,” 26 U.S.C. 6103(a), 7431. Plaintiffs sought discovery of basic information relevant to class certification. The district court ordered production of “Lookout” lists. A year later, the IRS had not complied, but sought a writ of mandamus. The Sixth Circuit denied that petition and ordered the IRS to comply. View "United States v. NorCal Tea Party Patriots" on Justia Law

Ohio prohibited persons from disseminating false information about a political candidate in campaign materials during the campaign season “knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.” Ohio Rev. Code 3517.21(B)(10), specifically prohibiting false statements about a candidate’s voting record. The statute established a multi-step complaint process involving the Elections Commission, culminating in referral to a prosecutor. If convicted in subsequent state court proceedings, violators could be sentenced to prison or fined. In 2010, then-Congressman Driehaus filed a complaint alleging that SBA issued a press release accusing him of voting for “taxpayer-funded abortion” by voting for the Affordable Care Act. The Commission issued a probable cause finding. SBA sued Driehaus and state officials. That case was consolidated with a similar case, adding the Commission as a defendant. The U.S. Supreme Court found the case ripe as a facial challenge, despite the dismissal of Commission proceedings. On remand, the district court granted SBA summary judgment, holding that Ohio’s political false statement laws were content-based restrictions that fail strict scrutiny review. The Sixth Circuit affirmed, characterizing the laws as content-based restrictions that burden core protected political speech, not narrowly tailored to achieve state interests in promoting fair elections. View "Susan B. Anthony List v. Driehaus" on Justia Law

On September 15, 2011, Elder Living ordered a background screening report on Rocheleau from First Advantage's predecessor, in conjunction with Rocheleau’s application for employment. The search disclosed criminal convictions matched to Rocheleau’s name and birth date. On September 16, First notified Rocheleau that it was reporting information derived from his public record and to direct any questions to its disclosure center. Days later, it sent another notice, advising that information from Rocheleau's report “may adversely affect [his] employment status” and that he was entitled to dispute it. The notice included a summary of rights under the Fair Credit Reporting Act, 15 U.S.C. 1681. On September 26, First notified Rocheleau that he had not been hired again advising Rocheleau of dispute procedures. Rocheleau contends that Elder shared the report with his then-employer, which terminated his employment. Rocheleau contacted First and complained that he had not authorized the report's release; he did not dispute its accuracy. On November 25, 2013, Rocheleau filed suit under FCRA, claiming that Elder obtained the report without his permission or notifying him that adverse action could result; that neither First nor Elder issued certifications mandated by statute; and that First failed to adhere to required “strict procedures” in releasing his information. The Sixth Circuit affirmed rejection of the claims as time-barred under the two-year limitations period. View "Rocheleau v. Elder Living Constr., LLC" on Justia Law

Plaintiffs received medical care from Mount Carmel Hospital in Columbus, Ohio. Consultant Anesthesiologists provided anesthesiology services to each at Mount Carmel Hospital. After plaintiffs did not pay their bills, Consultant Anesthesiologists transferred the delinquent accounts to Credit Adjustments, which called plaintiffs’ cell phone numbers, despite never having received their contact information directly from them. Credit Adjustments received the numbers from Consultant Anesthesiologists, which received them from Mount Carmel Hospital. As part of their admission for services to Mount Carmel Hospital, Baisden and Sissoko signed Patient Consent and Authorization forms covering “all medical and surgical care,” and stating “I understand Mount Carmel may use my health information for … billing and payment … I authorize Mt. Carmel to receive or release my health information, [to] agents or third parties as are necessary for these purposes and to companies who provide billing services.” Plaintiffs contend Credit Adjustments violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227(b)(1)(A)(iii), when it placed debt collection calls to their cell phone numbers using an “automatic telephone dialing system” and an “artificial or prerecorded voice.” The Sixth Circuit affirmed summary judgment, finding that plaintiffs gave their “prior express consent” to receive such calls. View "Baisden v. Credit Adjustments, Inc." on Justia Law

In 1969, the Flynt brothers opened “Hustler Club” nightclub, in Cincinnati. Larry later created the Hustler conglomerate, producing sexually explicit magazines. Jimmy opened his retail store, Hustler Cincinnati, in 2000, using the “HUSTLER” trademark (owned by Larry’s corporation) and began paying licensing in 2004. Jimmy and Larry had a falling out. Larry's Hustler fired Jimmy in 2009. Jimmy’s Hustler stopped paying fees, but continued to use the mark. Larry sued. The court enjoined Jimmy from “using in commerce any HUSTLER trademark” and “using any trademark or any variation thereof owned by” Larry or his corporations. Later, Larry complained that Jimmy had opened a new store in Florence, Kentucky, “FLYNT Sexy Gifts.” The court denied the contempt motion because the injunction did not directly prohibit Jimmy’s conduct. but modified the injunction, reasoning that Jimmy’s use of “FLYNT Sexy Gifts” was “likely to cause confusion with the LARRY FLYNT trademark.” The Sixth Circuit affirmed a modification that prohibits Jimmy from “[u]sing the name ‘Flynt’ in connection with the sale, promotion or advertising of adult entertainment products or services unless it is accompanied by the first name ‘Jimmy’ in the same font size, color, and style and on the same background color,” and required Jimmy, when using the name “Flynt” anywhere except on “store signage,” to incorporate “a conspicuous disclaimer stating that the goods or services are not ‘sponsored, endorsed by, or affiliated with Larry Flynt or Hustler, or any business enterprise owned or controlled by Larry Flynt.’” View "LFP IP, LLC v. Hustler Cincinnati, Inc." on Justia Law