User Comments On A Public Interest Website Do Not Violate Website’s User Agreement

The Appeals Court for the Fourth District Court of Appeals in California affirmed the special motion to strike a plaintiff’s complaint for being barred under the anti-SLAAP statute.  Hupp v. Freedom Communications, Inc., Case No. #-57390 (Cal. 4th DCA, November 7, 2013) (available here).  Plaintiff Paul Hupp sued Defendant Freedom Communications, Inc., dba The Orange County Register (“the Register”), alleging breach of the Register’s user agreement with Hupp when the Register failed to remove comments on its website regarding Hupp.  The Register filed a special motion to strike (anti-SLAPP) and the lower court granted the motion to strike Hupp’s complaint.  Hupp appealed, arguing that his lawsuit is a standard breach of contract action not subject to an anti-SLAPP motion.

In March 2012, the Register published an article on its website concerning public safety pensions in Orange County, California.  Many readers, including Hupp, posted comments on the article.  A large portion of the comments were between Hupp and Defendant Mike Bishop.  The Register argued that Hupp complained to the author of the article about five postings by Bishop and demanded that they be removed.  Hupp argued that the Register violated its user agreement by making public comments and failing to remove the comments about Hupp.  He argued that the comments invaded his right of privacy, harassed him, and were harmful to him.  The Register’s User Agreement states that interactive areas of the Register’s website are provided to the users as a way for users to express their opinions and share ideas and information.  The User Agreement also stated that users who used the interactive areas, and that the Register reserved the right, but undertakes no duty, to review, edit, move, or delete any user generated content in its sole discretion.

The Register filed an anti-SLAAP motion under Code of Civil Procedure Section 425.16, which authorizes such a motion “against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . . .”  Code of Civil Procedure Section 425.16(b)(1).  The statute is meant to be construed broadly, and the anti-SLAAP motion must be granted unless a plaintiff can show that there is a probability for plaintiff to prevail on the claim.  A SLAAP lawsuit is a civil lawsuit aimed to bring an economic advantage to the plaintiff over the defendant, not a lawsuit brought to vindicate a legally cognizable right of the plaintiff.  “While Hupp’s complaint does not generally fit the above description of a typical SLAPP suit, it is subject to an anti-SLAPP motion if it fits within the statutory definition, which includes having the purpose of punishing the Register for exercising its free speech rights. Hupp’s appeal on this point provides only two sentences of argument and does not address the issues presented by the trial court’s decision.”  Hupp, Slip Op. P. 5.

The Court first had to determine whether the Register made the required showing that Hupp’s complaint arose from a protected activity.  If so, then the Court would consider whether Hupp had demonstrated a probability of prevailing on his claim.  The Register argued that its actions arise from acts in furtherance of its free speech rights.  The Register argued that its maintenance of the website, which publishes public interest articles and allows user comments, facilitates free speech, and allows for the exchange of ideas and opinions.  The California Supreme Court has held that publicly available websites are public forums for purposes of anti-SLAAP motions.  Barrett v. Rosenthal, 40 Cal.4th 33, 41, fn. 4, (2006).  The comments between Hupp and Bishop began as a conversation about the pension article posted on the Register’s website.  However, Bishop then asked Hupp if he was a vexatious litigant, stating that he had searched for Hupp on Google, and that Hupp was the subject of discussion on other websites.  To support this, the Register submitted to the Court an appendix of 145 pages of lawsuit related documents concerning Hupp.  The Register argued that the subject of vexatious litigants is an issue of public  interest.  The Court concluded that the Register’s actions were in furtherance of its free speech rights.  “Maintaining a forum for discussion of issues of public interest is a quintessential way to facilitate rights, and the Register has no liability for doing so.”  Hupp, Slip Op. P. 8.

The Court extended this holding to find that Hupp had not shown any probability of prevailing in this action.  Hupp had failed to present any argument on the issue, and thus his lawsuit is barred.  As a result, the Court affirmed the lower court’s granting of the Register’s anti-SLAAP motion.

Hupp then argued that there was an issue with document service.  Hupp filed his complaint on March 22, 2012 and the Register was served on July 2, 2012.  The Register had 30 days to respond, and on July 24, 2012, it filed an ex parte motion for an extension in order to file its anti-SLAAP motion.  The motion was granted, and Hupp acknowledged receipt of the order on July, 30, 2012.  On August 31, 2012, the Register filed the anti-SLAAP motion, the hearing was set for September 28, 2012, and on September 13, 2012 the process server filed an amended proof of service stating that the original had inadvertent incorrect information, and that service was completed by leaving copies of the documents with the security guard at the front gate of Hupp’s residential community.  This is a permissible means of service in California.  Hupp filed a declaration by the secuirty guard, who stated that he turned the process server away and did not receive any documents.  Hupp filed his motion to strike the anti-SLAAP motion on September 24, 2012 for improper service, however he acknowledged receipt of the Register’s motion on September 13, 2012.  Counsel for the Register moved for a continuance, which was granted, and the anti-SLAAP motion was heard on October 18, 2012.  The lower court granted the anti-SLAAP motion.  The Court concluded that Hupp had admitted to receiving the Register’s motion on September 13, 2012, and therefore he had 34 days before the rescheduled hearing on October 18, and had actual notice of the action in time to defend against the anti-SLAAP motion.  As a result, the Register complied with all service requirements.

The Court affirmed the lower court’s order granting the Register’s anti-SLAAP motion to strike Hupp’s complaint.

TripAdvisor’s List of Hotels Not Dirty Enough To Warrant A Finding Of Defamation

The Sixth Circuit Court of Appeals held that a company’s list of the “dirtiest” hotels in America based on user reviews is an opinion and therefore protected speech.  Seaton v. TripAdvisor LLC, Case No. 12-6122 (6th Cir. August 28, 2013) (available here).  Kenneth Seaton owns the Grand Resort Hotel and Convention Center (“Grand Resort”) in Tennessee.  In 2011, TripAdvisor LLC ranked Grand Resort number one on its “Dirtiest Hotels” list.  Seaton sued for defamation and false-light invasion of privacy.  TripAdvisor moved to dismiss the class, asserting that the list was within TripAdvisor’s First Amendment rights.  Seaton moved to amend his complaint to add “trade libel/injurious falsehood” and tortious interference with prospective business relationships to his complaint.  The lower court granted TripAdvisor’s motion to dismiss and denied Seaton’s motion to amend.  Seaton appealed, and the Sixth Circuit affirmed.

Grand Resort opened in 1982 and TripAdvisor’s list stated that 87% of Grand Resort’s reviewers did not recommend staying at that hotel.  Seaton argued that TripAdvisor’s method of ranking Grand Resort as the dirtiest hotel was flawed and based upon unverifiable data.  The lower court dismissed Seaton’s case, finding that TripAdvisor’s list was a protected opinion under the First Amendment because it reflected TripAdvisor’s users’ subjective opinions of Grand Resort, and thus these opinions could not be defamatory.

“Placement on the ‘2011 Dirtiest Hotels’ list constitutes protected opinion because the list employs loose, hyperbolic language and its general tenor undermines any assertion by Seaton that the list communicates anything more than the opinions of TripAdvisor’s users.”  Seaton, Slip Op. Pp. 4-5.

“To establish a prima facie case of defamation in Tennessee, the plaintiff must establish that: 1) a party published a statement; 2) with knowledge that the statement is false and defaming to the other; or 3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement.” Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571 (Tenn. 1999).  The First Amendment protects statements that cannot reasonably be interpreted as stating actual facts about an individual.  Seaton’s claim for defamation fails because TripAdvisor’s list cannot reasonably be interpreted as stating, as a fact, that Grand Resort is the dirtiest hotel in America.  The Sixth Circuit listed two reasons for this: (1) “TripAdvisor’s use of ‘dirtiest’ amounts to rhetorical hyperbole” and (2) “the general tenor of the ‘2011 Dirtiest Hotels’ list undermines any impression that TripAdvisor was seriously maintaining that Grand Resort is, in fact, the dirtiest hotel in America.”  Seaton, Slip Op. Pp. 7-8.

The Sixth Circuit reasoned that any reader would know that TripAdvisor was not stating that Grand Resort was the dirtiest hotel, but that the list was merely based on the subjective views of TripAdvisor’s users.  Thus, the list was not based on scientific findings that Grand Resort was indeed the filthiest hotel in America, but based on users’ experiences when staying at Grand Resort.  Further, there was no recurring theme of what TripAdvisor users considered to be dirty in each hotel, thus allowing each user to apply his or her own definition when writing a review.  The Sixth Circuit held that the list is a protected opinion under the First Amendment and is not defamatory in nature.  As a result, even if TripAdvisor used a flawed method to create the list, Seaton’s claim for defamation still fails because the list is subjective in nature and therefore protected.

Seaton could not argue a false-light invasion of privacy claim because there is no evidence that he was personally named on the list and Grand Resort, as a business, could not make such a claim under Tennessee law.  Further, Seaton’s claim of trade libel/injurious falsehood fails because he cannot prove that any false statements were made about Grand Resort.  Lastly, Seaton’s claim for tortious interference with prospective business relationships is not plausible because this claim rests on his argument that the list is defamatory. The Sixth Circuit therefore affirmed the dismissal of Seaton’s action.

EA’s NCAA Football Video Game Violates Players’ Right Of Publicity

The Third Circuit Court of Appeals found that a college football player has a right to publicity claim against a video game company who used his likeness in its annual NCAA Football video game.  Hart v. Electronic Arts, Inc., Case No. 11-3750 (3d Cir. May 21, 2013) (available here).  Ryan Hart sued Electronic Arts, Inc. (“EA”) for violating his right of publicity under New Jersey Law from EA’s alleged use of his likeness and biological information in its NCAA Football series of video games.  The lower court granted summary judgment in favor of EA, finding the use protected by the First Amendment.  On appeal, the Third Circuit reversed.

Hart played football for Rutgers University for three seasons.  As an NCAA athlete, Hart was precluded from monetizing off of his athletic skills.  Hart often wore a visor and armband on his left wrist while playing football.  His participation in college football, along with his accomplishments, ensured that he would be included in EA’s NCAA Football video games.  The game is released annually, and includes rosters of over 100 college teams.  Part of the reason why EA’s game is so popular is the realism associated with each annual release: the game’s football player digital avatars resemble their real-life counterparts and share vital statistics.

The Third Circuit began its discussion by stating that video games are protected as expressive speech under the First Amendment.  However, this protection can be limited when the game conflicts with other protected rights.  EA conceded that it violated Hart’s right of publicity, but argued that its actions are protected by the First Amendment.  As a result, the Third Circuit had to balance the right to free expression by EA with Hart’s right of publicity.

First, the Third Circuit examined the relevant interests in protecting freedom of expression as compared to protecting the right of publicity.  The Third Circuit noted that freedom of expression benefitted the individual as well as society.  The right of publicity has its roots in the right to privacy, and the goal is to protect the property interest that an individual gains and enjoys from his labor and efforts.  The Third Circuit had never balanced the two before and therefore turned to approaches of other courts in this case of first impression.

The Third Circuit looked at the three most prominent balancing tests.  First, the Third Circuit looked at the commercial-interest-based Predominant Use Test, which Hart argued the Court should adopt.  This test states: “If a product is being sold that predominantly exploits the commercial value of an individual’s identity, that product should be held to violate the right of publicity and not be protected by the First Amendment, even if there is some ‘expressive’ content in it that might qualify as ‘speech’ in other circumstances. If, on the other hand, the predominant purpose of the product is to make an expressive comment on or about a celebrity, the expressive values could be given greater weight.”  Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003) (en banc).  The Third Circuit declined to adopt this test because “the Predominant Use Test is subjective at best, arbitrary at worst, and in either case calls upon judges to act as both impartial jurists and discerning art critics.”  Hart, Slip Op. P. 25.

The Third Circuit next looked at the trademark-based Rogers Test, which looks at the relationship between the celebrity image and the work as a whole.  Thus, in this case, EA argued that Hart, as a former college football player, could not meet the requirements of the Rogers Test because Hart’s likeness was used in the game, the game was about college football, and there was no hidden or unrelated advertisements.  However, the Third Circuit declined to adopt this test because it would immunize a broad range of tortious activity from liability.

The last test the Third Circuit considered was the copyright-based Transformative Use Test.  This test turns on “[w]hether the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question. [I]n other words, whether the product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness. And when we use the word ‘expression,’ we mean expression of something other than the likeness of the celebrity.”  Comedy III Prods., Inc. v. Gary Saderup, Inc., 21 P.3d 797, 808 (Cal. 2001).  Thus, the Transformative Use Test requires more than just a trivial variation from the celebrity, the work must create something recognizably unique in order to have legal protection under the First Amendment.  The Third Circuit adopted this test because it “effectively restricts right of publicity claims to a very narrow universe of expressive works.”  Hart, Slip Op. P. 47.

The Third Circuit had to determine whether Hart’s identity (his likeness and biographical information) was sufficiently transformed in EA’s game to merit protection.  The Third Circuit concluded that EA’s digital avatar closely resembled Hart’s physical appearance.  The biographical information in EA’s game also accurately tracks Hart’s vital and biographical details.  Next, the Third Circuit considered the context within which EA’s digital avatar exists.  “The digital Ryan Hart does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital recreations of college football stadiums, filled with all the
trappings of a college football game. This is not transformative[.]” Hart, Slip Op. P. 53.  Finally, the Third Circuit considered the fact that the users of EA’s game had the ability to alter the avatar’s appearance.  The Third Circuit noted that appearance alone was insufficient to satisfy the Transformative Use Test because “[i]f the mere presence of the feature were enough, video game companies could commit the most blatant acts of misappropriation only to absolve themselves by including a feature that allows users to modify the digital likenesses.”  Hart, Slip Op. P. 56.  EA’s goal was to create a realistic depiction of college football and to capitalize on the respective fan bases for various teams and players.  Thus, the Third Circuit discredited the fact that users could alter the avatar’s appearance.

In its conclusion, the Third Circuit held that while EA’s use of Hart’s likeness in the game is protected by the First Amendment.  However, Hart’s right of publicity should not have been dismissed on summary judgment.

Domain Name Entitled to First Amendment Protection

The Fifth Circuit Court of Appeals reversed a U.S. District Court’s dismissal of a lawsuit challenging the constitutionality of a Texas law stating that the subject domain name may be commercial speech entitled to some First Amendment, freedom of speech rights.  Gibson v. Texas Dept. of Insurance, Case No. 11-11136 (5th Cir. Oct. 30, 2012) (available here).  Gibson owned and used the domain TexasWorkersCompLaw.com.

Texas Department of Insurance issued a cease and desist letter to Appellant John Gibson, arguing that his use of the words “Texas” and “Workers’ Comp” in the domain name of his website violated § 419.002 of the Texas Labor Code.  The statute prohibited: “Any term using both ‘Texas’ and ‘workers’ Compensation’ or any term using both Texas and Workers’ Comp” § 419.002 Texas Labor Code.

Gibson was fined.  He then sued the State of Texas and argued that the statute violates various constitutional provisions including the First Amendment’s guarantee of freedom of speech, the Fourteenth Amendment’s guarantees of equal protection and due process, and the Fifth Amendment’s prohibition on takings.  Gibson argued that the regulation is not content-neutral, and therefore the appellate court should evaluate the regulation under the test traditionally reserved for content-based discrimination.

Texas’ law did not prohibit Gibson’s use of his domain name because of the viewpoint it expresses, nor did it prohibit all speech relating to workers’ compensation in Texas.  See Hill v. Colorado, 530 U.S. 703, 719, 722-23 (2000) (holding that a statute is content-neutral when it “places no restrictions on – and clearly does not prohibit – either a particular viewpoint or any subject matter that may be discussed by a speaker”).

The proper issue before the court was whether the district court erred in finding that the statute (a) prohibits commercial speech, and (b) is a valid prohibition of commercial speech under the test set forth in Central Hudson.  Cent. Hudson Gas v. Pub. Serv. Comm’n, 447 U.S. 557, 562-63 (1980).

The domain name and blog may do “more than propose a commercial transaction.”  Bolger v. Youngs Drug Prods. Corp.,, 463 U.S. 60, 66 (1983).  The domain name may nevertheless be considered commercial speech if (i) it is an advertisement of some form; (ii) it refers to a specific product; and (iii) the speaker has an economic motivation for the speech.

The court assumed that the domain name TexasWorkersCompLaw.com was  commercial speech without making a definitive ruling on the concept.  The Court then evaluated whether the statute presents a valid restriction on commercial speech under the test set forth in Central Hudson.  To answer this question, the Court looks to whether the speech restricted by the statute is “false, deceptive, or misleading.”  Bates v. State Bar of Ariz., 433 U.S. 350, 383 (1977).  If so, it is not entitled to First Amendment protection.  The Supreme Court and the 5th Circuit have distinguished between two types of misleading speech: that which is “inherently likely to deceive,” and that which is only “potentially misleading.”  Pub. Citizen, Inc. v. La. Attorney Disciplinary Bd., 632 F.3d 212, 218 (5th Cir. 2011) (citing In re R.M.J., 455 U.S. 191, 202-03 (1982)).  In order for speech to fall outside of the First Amendment’s protection, the speech must either be “inherently likely to deceive,” or “the record [must] indicate that a particular form or method of advertising has in fact been deceptive.” R.M.J,, 455 U.S. at 202.  Cases involving trademark infringement involve inherently deceptive speech because they contain a significant risk that an infringing party will freeload on the goodwill that has been created by the original trademark.  See Friedman, 440 U.S. at 11-16.

While Texas feared that Gibson’s domain name may confuse the public, there was no showing that the domain name is incapable of being viewed in a non-deceptive manner.  See Pub. Citizen, 632 F. 3d at 219.  Second, there has been no factual findings to support an allegation that the domain name is actually deceptive.  See, e.g., R.M.J., 455 U.S. at 202; Joe Conte Toyota, Inc. v. La. Motor Vehicle Comm’n, 24 F.3d 754, 756 (5th Cir. 1994).  Therefore, the domain name at issue was entitled to some First Amendment protection.

Florida Appeals Court Reverses Injunction for Libel and Defamation as Being a Prior Restraint on Defendant’s Constitutional Right Free Speech

A broken romantic relationship devolved into a pattern of harassment, email hacking, offensive letters, naked photographs sent to third parties from the plaintiff’s email contact list, creation of a website, use of plaintiff’s name for multiple purposes, efforts by defendant to pre-sell a tell-all book, and posting of allegedly defamatory statements about plaintiff. The lower court issued a preliminary injunction prohibiting Vrasic “[f]rom using the name or likeness of Leibel for commercial purposes”; “[f]rom using the words ‘Lorne’ together with ‘Leibel’ for any commercial purpose”; and “[f]rom publishing, selling, licensing, or leasing, or offering to publish, sell, license, or lease” Vrasic’s book “as previously published,” allowing Vrasic to publish a work only “so long as the work does not use the words ‘Lorne’ and/or ‘Leibel,’ alone or in any combination.”  The Appeals Court reversed the lower court’s ruling and mainly dissolved the injunction as violating Vrasic’s right of freedom of speech under the First Amendment.  Vrasic v. Leibel, case no. 4D12-1289 (4th DCA, Jan. 9, 2013)(available here).

Florida courts have long held that temporary injunctive relief is not available to prohibit the making of defamatory or libelous statements because there is an adequate remedy at law for libelous or defamatory statements, namely, an action for damages.  P. 2, citing Animal Rights Found. of Fla., Inc. v. Siegel, 867 So.2d 451, 454 (Fla. 5th DCA 2004); and Murphy v. Daytona Beach Humane Soc’y, Inc., 176 So.2d 922, 924 (Fla. 1st DCA 1965).

“Second, a temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns. See Moore v. City Dry Cleaners & Laundry, 41 So.2d 865, 873 (Fla.1949) (recognizing First Amendment concerns triggered by temporary injunction); Murphy, 176 So.2d at 924 (same); see also Post–Newsweek Stations Orlando, Inc. v. Guetzloe, 968 So.2d 608, 610 (Fla. 5th DCA 2007) (recognizing temporary injunction forbidding speech constitutes a prior restraint) (citing Alexander v. United States, 509 U.S. 544, 550 (1993)). ‘[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.’ Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). And, protection against prior restraints on speech extends to both false statements and to those from which a commercial gain is derived. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761 (1976) ( ‘[S]peech does not lose its First Amendment protection because money is spent to project it· Speech likewise is protected even though it is carried in a form that is ‘sold’ for profit.’) (citations omitted); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 924 (6th Cir.2003) (same); Town of Lantana v. Pelczynski, 290 So.2d 566, 569 (Fla. 4th DCA) (‘Freedom from prior restraint upon speech and press extends to false, as well as true statements.’) (citing Patterson v. Colorado, 205 U.S. 454, 462 (1907)), aff’d, 303 So.2d 326 (Fla.1974). ‘[A] free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.’ Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975).”  P. 2.

The Appeals court rejected plaintiff’s arguments that defendant engaged in tortious interference or a claim of specialized harm per Zimmerman v. D.C.A. at Welleby, Inc., 505 So.2d 1371 (Fla. 4th DCA 1987) and Murtagh v. Hurley, 40 So.3d 62 (Fla. 2d DCA), review denied, 51 So.3d 1155 (Fla.2010).

“The instant case involves neither a claim for tortious interference with a business relationship nor a claim of specialized harm. Indeed, in issuing the temporary injunction, the lower court expressly found that while Leibel had suffered embarrassment and emotional distress—the same harm suffered by all who are the subjects of defamatory statements—there was no evidence that he had been ‘shunned by society’ or had suffered any business or financial losses. We thus decline to extend Zimmerman and Murtagh to uphold the temporary injunction entered in this case.”  P. 3.

Therefore, Leibel’s case against his former lover Vrasic moves forward to trial leaving in place a “no contact” injunction but without the unconstitutional prior restraint of speech, confirming the age old adage “hell hath no fury like a woman scorned,” or, as penned by William Congreve in his poem “The Mourning Bride” (1697): “Heaven has no rage like love to hatred turned, Nor hell a fury like a woman scorned.”

Florida Law Prohibiting Loud Music From Cars Declared Unconstitutional Under First Amendment

The Freedom of Speech clause of the First Amendment was cited in declaring unconstitutional a Florida statute that made it unlawful for any person in a motor vehicle to produce sound from a soundmaking device (for example, a CD player) which is “plainly audible at a distance of 25 feet or more from the motor vehicle.” Fla. Stat. 316.3045(1)(a).  The Statute was “unconstitutionally overbroad, but not unconstitutionally vague” because the statute exempts “motor vehicles used for business or political purposes, which in the normal course of conducting such business use soundmaking devices.”  Since the Statute treats commercial and political speech more favorably than noncommercial speech the Statute is unconstitutionally overbroad.  State of Florida v. Catalano, Case No. SC 11-1166 (Fla. S.Ct., Dec. 13, 2012) (available here).  The Statute provided:

Operation of radios or other mechanical soundmaking devices or instruments in vehicles; exemptions.— (1) It is unlawful for any person operating or occupying a motor vehicle on a street or highway to operate or amplify the sound produced by a radio, tape player, or other mechanical soundmaking device or instrument from within the motor vehicle so that the sound is: (a) Plainly audible at a distance of 25 feet or more from the motor vehicle; or (b) Louder than necessary for the convenient hearing by persons inside the vehicle in areas adjoining churches, schools, or hospitals. Fla. Stat. 316.3045(1)(a).

Additionally, the Statute exempted (a) law enforcement and emergency vehicles; and (b) “motor vehicles used for business or political purposes” from the “too loud at 25 feet” provision. Fla. Stat. 316.3045(1)(a). The Department of Highway Safety and Motor Vehicles was to promulgate rules defining “plainly audible” and establish standards.

Catalano argued that the “plainly audible” language is unconstitutionally vague on its face because whether a police officer can hear amplified sound beyond twenty-five feet is necessarily subject to each particular police officer’s auditory faculties, leading to arbitrary enforcement based on whether a police officer personally finds the amplified sound disturbing.

“Applying the rationale from Grayned and Broadrick, the ‘plainly audible’ standard provides persons of common intelligence and understanding adequate notice of the proscribed conduct: individuals operating or occupying a motor vehicle on a street or highway in Florida cannot amplify sound so that it is heard beyond twenty-five feet from the vehicle. Although it is true that each police officer may have different auditory sensitivities, the ‘plainly audible’ beyond twenty-five feet standard provides fair warning of the prohibited conduct and provides an objective guideline—distance—to prevent arbitrary and discriminatory enforcement so that basic policy matters are not delegated to policemen, judges, and juries for resolution on an ad hoc and subjective basis.” P. 9, citing Grayned v. City of Rockford, 408 U.S. 104, 110 (1972) and Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973).

Although not unconstitutionally vague, the Statute is overbroad in that it favors one type of speech over another.

“Here, the State argues that Catalano … do[es] not have a constitutionally recognized right to play loud music, thus the statute is not subject to an overbreadth analysis. However, the right to play music, including amplified music, in public fora is protected under the First Amendment.”  P. 13, citing Ward v. Rock Against Racism, 491 U.S. 781, 788-90 (1989).

“‘The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.’ Ward, 491 U.S. at 791. If the government’s purpose has no relation to the content of the speech, the statute will be deemed neutral even if the restriction affects some speakers or messages and not others. See id. Initially, it would appear that section 316.3045(1)(a) does not regulate expression based on the content of the message as it bans all amplified sound coming from within the interior of a motor vehicle that is ‘plainly audible’ beyond twenty-five feet from the source. In short, the statute proscribes excessive sound emanating from vehicles on public thoroughfares. Subsection (3), however, excepts ‘motor vehicles used for business or political purposes, which in the normal course of conducting such business use [sound-making] devices’ from this broad proscription.”  Pp. 14 – 15.

Therefore, the Statute was not unconstitutionally vague because ordinary persons could understand the scope of the prohibited acts but was unconstitutionally overbroad because it exempted certain speech and thereby favoring one speech (political and business) over another (for example, playing loud rock music).

Constitutional Free Speech Invalidates False Claims of Military Honor Act

The U.S. Supreme Court in U.S. v. Alvarez, Case No. 11-210 (June 28, 2012) (available here) ruled that the Stolen Valor Act, 18 U.S.C. sec 204(b) and (c) was an unconstitutional abridgement of Free Speech under the First Amendment. The Act made criminal false claims about receipt of military decorations or medals, such as the prestigious Congressional Medal of Honor.

Lying was Defendant Alvarez’s habit. He “lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for that lie [was alleged to] violate[] a federal criminal statute, the Stolen Valor Act of 2005. 18 U. S. C. §704.” Slip opn. p. 1 (herein “P. 1″).

As a general matter, the First Amendment “means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content… Instead, content-based restrictions on speech have been permitted, as a general matter, only when confined to the few ‘historic and traditional categories [of expression] long familiar to the bar,’ Id., at ___ (slip op., at 5) (quoting Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (KENNEDY, J., concurring in judgment)). Among these categories are advocacy intended, and likely, to incite imminent lawless action, see Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam); obscenity, see, e.g., Miller v. California, 413 U. S. 15 (1973); defamation, see, e.g., New York Times Co. v. Sullivan, 376 U. S. 254 (1964) (providing substantial protection for speech about public figures); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974) (imposing some limits on liability for defaming a private figure); speech integral to criminal conduct, see, e.g., Giboney v. Empire Storage & Ice Co., 336 U. S. 490 (1949); so-called ‘fighting words,’ see Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); child pornography, see New York v. Ferber, 458 U. S. 747 (1982); fraud, see Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976); true threats, see Watts v. United States, 394 U. S. 705 (1969) (per curiam); and speech presenting some grave and imminent threat the government has the power to prevent, see Near v. Minnesota ex rel. Olson, 283 U. S. 697, 716 (1931), although a restriction under the last category is most difficult to sustain, see New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam). These categories have a historical foundation in the Court’s free speech tradition. The vast realm of free speech and thought always protected in our tradition can still thrive, and even be furthered, by adherence to those categories and rules.” P. 5.

Falsity alone does not normally suffice to bring the speech outside the First Amendment. In “some instances of defamation and fraud, moreover, the Court has been careful to instruct that … [t]he statement must be a knowing or reckless falsehood.” P. 7. See Sullivan, supra, at 280 (prohibiting recovery of damages for a defamatory falsehood made about a public official unless the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not”); see also Garrison, supra, at 73 (“[E]ven when the utterance is false, the great principles of the Constitution which secure freedom of expression . . . preclude attaching adverse consequences to any except the knowing or reckless falsehood”); Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U. S. 600, 620 (2003) (“False statement alone does not subject a fundraiser to fraud liability”). P. 7.

“Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.” P. 11. 

“The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth… The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person. And suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.” PP. 15-16.

In summary, the Court ruled that such statutes, like the Stolen Valor Act must include an element of fraud or misrepresentation, not just falsity, to pass muster under the First Amendment. P. 7 (fraud), 11 (material gain), 13 (casual link between restriction and injury to be presented).

Realistic Art Versus Trademark Rights – First Amendment Rights Prevail

The Eleventh Circuit Court of Appeals has held that a famous artist (Daniel Moore) who painted highly realistic scenes of the University of Alabama football team (fearsomely promoted as ROLL TIDE) has a First Amendment right as an artist which “clearly outweigh[s] whatever consumer confusion that might exist on these facts” over Alabama’s right to control its highly recognized football uniform and colors (crimson and white). University of Alabama Bd. Of Trustees v. New Life Art, Inc., Case No. 09-16412 (11th Cir. June 11, 2012). (available here). Although artist Moore (and his company New Life) had multiple licenses in the 1990s, the critical aspect of the case involves Moore’s copyrighted paintings of Alabama’s sports team and sales of merchandise bearing his art (mugs, calendars, etc.).

The University claimed that Moore’s unlicensed paintings, prints and calendars and coffee mugs infringe the University’s trademarks because the inclusion in Moore’s products of the University’s football uniforms (showing the University’s crimson and white colors) creates a likelihood of confusion on the part of buyers that the University sponsored or endorsed the product. Slip opn. p. 16 (herein “p. #”). Avoidance of confusion is the purpose behind the federal trademark act, the Lanham Act. 15 U.S.C. sec. 1125. The University’s claim of trademark rights to its uniforms was not well established. The court rejected its consumer survey results because the survey used only one of Moore’s prints. P. 18.

“As our discussion below indicates, we conclude that the First Amendment interests in artistic expression so clearly outweigh whatever consumer confusion that might exist on these facts that we must necessarily conclude that there has been no violation of the Lanham Act with respect to the paintings, prints, and calendars. The First Amendment’s protections extend beyond written and spoken words. ‘[P]ictures, films, paintings, drawings, and engravings . . . have First Amendment protection[.]’ Kaplan v. California, 413 U.S. 115, 119-20, 93 S. Ct. 2680, 2684 (1973); see also Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 569, 115 S. Ct. 2338, 2345 (1995) (‘[T]he Constitution looks beyond written or spoken words as mediums of expression.’).” P. 18-19.

Like other expressive speech, Moore’s paintings, prints, and calendars were entitled to full protection under the First Amendment. P. 16, see also ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 925 (6th Cir. 2003). 

The court discussed the leading case of Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), involved a film of two Italian dancers called “Ginger and Fred.” Ginger Rogers, a famous dancer who often worked with Fred Astaire, sued claiming violation of their trademark rights.

 “Thus, the court adopted a balancing test: ‘We believe that in general the Act should be construed to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression. In the context of allegedly misleading titles using a celebrity’s name, that balance will normally not support application of the Act unless the title has no artistic relevance to the underlying work whatsoever, or if it has some artistic relevance, unless the title explicitly misleads as to the source of the work.’ Id. at 999 … Accordingly, the court ruled in favor of the movie’s producers because the title was artistically relevant to the film, there had been no evidence of explicit misleading as to source, and the risk of confusion was ‘so outweighed by the interests in artistic expression as to preclude application of the Lanham Act.’ Id. at 1001.” P. 21. the same result was obtained in ESS Entertainment 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095 (9th Cir. 2008), where a scene in the defendant’s video game featured the trademark of the plaintiff’s entertainment club. See also ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 918-19 (6th Cir. 2003)(involving an artist painting a collage of Tiger Woods images).

 “Therefore, we have no hesitation in joining our sister circuits by holding that we should construe the Lanham Act narrowly when deciding whether an artistically expressive work infringes a trademark. This requires that we carefully ‘weigh the public interest in free expression against the public interest in avoiding consumer confusion.’ Cliffs Notes, 886 F.2d at 494. An artistically expressive use of a trademark will not violate the Lanham Act ‘unless the use of the mark has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless it explicitly misleads as to the source or the content of the work.’ ESS Entm’t, 547 F.3d at 1099 (quotations and alterations omitted); see also Rogers, 875 F.2d at 999.” P. 24.

 Although the 11th Circuit Court permitted Moore’s use of his art in paintings and calendars, it remanded to the trial court the issue of use of the art on mugs.