Free Speech

Nilan v. Valenti

Date: 

06/22/2012

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Dan Valenti

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Central Berkshire (Pittsfield) District Court

Case Number: 

Docket No. 1227R0235

Legal Counsel: 

Rinaldo Del Gallo, III, Bill Newman

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Denied

Description: 

According to a police report, on December 8, 2011, Meredith Nilan, the 24-year-old daughter of the Chief of Probation at Berkshire Superior Court, was involved in a car accident. While driving home from a social gathering, Nilan allegedly hit a running pedestrian, Peter Moore. According to the police report, she claimed she stopped and looked around, but then left the scene of the accident. According to The Berkshire Eagle and the police report, Moore suffered serious injuries.

After further investigation by the Pittsfield Police Department, Nilan was charged with leaving the scene of a personal injury accident and negligent operation of a motor vehicle to endanger. Later, in a closed show cause hearing on January 12, 2012, Assistant Clerk-Magistrate Nathan A. Byrnes found insufficient evidence for the case to go to trial. 

Around this time, Valenti started blogging about the developments of the case on his blog PlanetValenti.com. Valenti's blog suggested that Nilan might be receiving favorable treatment because of her father's position. He also questioned Nilan's version of events as reflected in the police report about the scene of the accident. 

On February 13, 2012, Springfield District Court Judge William P. Hadley overturned the Clerk-Magistrate's determination, and held there was probable cause to charge Nilan with leaving the scene of an accident and negligent operation of a motor vehicle.  She was later arraigned and charged; on June 6, 2012, prosecutors dismissed the charge of leaving the scene of an accident, and continued the misdemeanor negligent operation charge for six months Throughout these proceedings, Valenti continued to blog about the case. 

On June 22, 2012, Meredith Nilan filed a complaint for a civil harassment prevention order and supporting affidavit against Valenti in the Central Berkshire (Pittsfield) District Court. Nilan claimed that Valenti's blog posts were "lies and innuendo" and a "regular and malicious attack" on her reputation. She asserted that because of Valenti's "sensational interpretations" and reader's "anonymous rants," she feared "vigilante justice," and that "Mr. Valenti's continued vitriol and his repeated inclination to print lies and sensationalize every aspect of my case has made me fear for my personal safety."

A few days later on June 27, 2012, after an ex parte hearing, District Court Judge Bethzaida Sanabria-Vega issued a harassment prevention order directing Valenti "to remove any and all information referring to the Plaintiff [Ms. Nilan] from any and all websites, blogs, etc." Also included was an order to stay 100 yards from the plaintiff and to stay away from the plaintiff's work and residence. 

On his blog, Valenti wrote that he complied with the order on June 28, 2012, after recivint the order the night before.

Valenti filed a responsive affidavit on July 5, 2012, in which he detailed how he became involved in the Nilan story and responded to Nilan's claims. In his affidavit, he asserted that he had "never met her, talked with her, been near her, contacted or attempted to contact her, or spoken to Meredith Nilan, let alone 'harass'[ed] her." Valenti claimed that he reported facts "honestly, fairly, diligently, and justly," and that while he invited readers to share their views, he did not enourage outrage.

On July 9, 2012, the court held a hearing on the prevention order. According to a news report on the hearing, Valenti read his affidavit aloud, and Nilan read a statement.

Valenti's lawyer, Rinaldo Del Gallo, III, also filed a brief in his defense. In the brief, Valenti argued that he did not "harass" Nilan, as defined in the statute, because he had never met her or had any contact with her.  Valenti also argued that the civil harassment statute, Mass. Gen. Laws c. 258E, does not authorize a court to proscribe or censure speech on the Internet, and that the statute would be unconstitutionally overbroad if applied to the blog. Citing O'Brien v. Borowski, 461 Mass. 415 (2012), in which the Supreme Judicial Court interpreted c. 258E to avoid overbreadth by limiting its reach to "fighting words" and "true threats," the brief further asserted that there was no "face-to-face" confrontation likely to provoke violence (as required by the "fighting words" doctrine) or "intent to commit an unlawful act" against Nilan (as required to prove a "true threat"). Rather, Valenti claimed that his blog posts were true speech on a matter of public concern, and that the the judge's previous order was an unconstitutional prior restraint under the First Amendment and Massachusetts Consitution. 

Nilan did not file a response, according to the Central Berkshire District Court clerk's office. 

Bill Newman, director of Western Massachusetts ACLU, submitted an amicus brief in the case, arguing that the order was an impermissible prior restraint and "sweeping censorship." The amicus argued that the order to remove previously published information is even worse than a typical prior restraint because "it does not merely 'freeze' the speaker; it requires him to bowdlerize prior speech." The amicus also argued that Nilan's affidavit did not allege "three acts of either 'fighting words' or 'true threat' by Valenti or his web site," as required by the statute. 

At the July 9, 2012 hearing, Judge Mark D. Mason overruled and vacated the harassment prevention order.

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ANNOUNCEMENT: Panel and Fundraiser for "Without My Consent"

We would like to congratulate Without My Consent on its one-year anniversary, and announce an exciting event in celebration!

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Lèse Majesté: 16th Century Censorship Meets 21st Century Law

When hearing the expression “lèse majesté,” images of the Queen of Hearts ordering heads to be chopped off ASAP may come to mind. Marie-Antoinette, the queen who was once a “majesté” in France, herself lost her head during the French Revolution. Surely, the crime of lèse majesté is now a thing of the past?

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Hoang v. Amazon.com, Inc.

Date: 

10/13/2011

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Amazon.com, Inc., IMDb.com, Inc.

Type of Party: 

Individual

Type of Party: 

Large Organization

Court Type: 

Federal

Court Name: 

Western District of Washington at Seattle

Case Number: 

2:11-CV-01709-MJP

Legal Counsel: 

Ashley A. Locke, Breena Michelle Roos, Charles Christian Sipos, Elizabeth L. McDougall-Tural

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

Junie Hoang, the stage name of Asian actress Huong Huang, filed an anonymous "Jane Doe" complaint in the Western District of Washington against the Internet Movie Database website, IMDb.com, and its parent company, Amazon.com, on October 13, 2011.

Hoang, who lives in Texas, has been a user of IMDb.com since 2003 and a subscriber to IMDbPro since 2008. She was using the services to help her connect with casting directors and to obtain acting roles. She did not put her age in her profile, but alleges that IMDb.com included it at a later point in time. She alleges that IMDb.com "took the personal information she provided during the subscription process [from her credit card] and added it to her online profile without her authorization." She also alleges that IMDb.com "scour[ed] public records" to discover her date of birth. She asked for her birthdate to be taken down, but IMDb.com has refused.

Hoang alleges that revealing her true name and age on IMDb.com has harmed her career because "in the entertainment industry, youth is king." Hoang was 40 years old at the time of filing. In addition, she alleges a "double-whammy effect" because she cannot get "forty-year-old roles" because she looks younger than she is and cannot portray the role of a forty-year-old woman.

In her complaint, Hoang alleges four causes of action:

  1. Breach of contract (of IMDbPro's Subscriber Agreement and incorporated Privacy Policy);  
  2. Fraud;
  3. Violation of Washington Privacy Act, RCW 9.73.030; and
  4. Violation of Washington Consumer Protection Act, RCW 19.86.

She included Amazon.com in her complaint because she alleges that the company "aided and abetted IMDb's wrongful conduct," and was aware of IMDb's procedures of cross-referencing credit card information with public records to gather as much information as possible about each subscriber. She sought an injunction to remove her personal information from IMDb, as well as $75,000 in comensatory damages, $1 million in punitive damages, and an award of costs and fees.

On November 9, 2011, defendants responded with two Motions to Dismiss: one pursuant to Rule 12(b)(6), failure to state a claim; and another pursuant to Rule 10(a), arguing that "Jane Doe" should not be able to proceed anyonymously. On the Rule 12(b)(6) motion, Amazon and IMDb argued that the display of the birthdate was "an accurate fact," and that Doe's claims about IMDb's practices were "pure speculation." The defendants also noted that even if Doe's claims were true, "plaintiff consented to such use of information when she subscribed to the IMDbPro service." 

On November 28, 2011, plaintiff filed oppositions to defendant's Rule 12 (b)(6) motion and Rule 10(a) motion, and simultaneously filed a cross-motion to proceed anonymously due to the "unique circumstances" in the case. Plaintiff argued that she should be allowed to proceed anonymously because disclosure of her identity would subject her to "severe retaliation, harassment and ridicule," including retaliation by defendants, who she claims "have a reputation of striking back at consumers who complain about their unauthorized publication of personal information." 

Defendants filed replies in support of their motions on December 2, 2011. They argued in regards to the 12(b)(6) motion that the plaintiff had failed to meet her burden of specific factual allegations sufficent to state a claim, and that each of her causes of action fail independently. In their reply pursuant to the 10(a) motion, defendants argued that plaintiff's arguments did not justify anonymity in this case, while also denying that they had ever "retaliated against [p]laintiff (or anyone else) for complaining regarding its practices." Amazon also claimed that "embarrassment does not meet the strict standards for anonymity." 

On December 23, 2011, the Washington district court judge in Seattle granted the defendant's motion to dismiss on Rule 10(a) grounds.  The court said "the injury [plaintiff] fears is not severe enough to justify permitting her to proceed anonymously. " The judge granted leave to "Jane Doe" to amend her complaint by adding her real name within 14 days of the order. 

On January 6, 2012, "Jane Doe" filed an amended complaint using her real name, Huong Huang.

On March 30, 2012, a federal district court judge ruled on the Rule 12(b)(6) Motion to Dismiss. Taking plaintiff's factual allegations as true, the court granted in part and denied in part defendants' motion.

  1. Breach of Contract. The court held that Huang's breach of contract claim was sufficient to survive the motion to dismiss stage. Plaintiff alleged an existence of a contractual duty and a breach of that duty. The court said the "plain language of the contract does not permit defendants unfettered use of the personal information that Plaintiff provided for the purposes of processing payment."
  2. Fraud. In regards to the fraud claim, the court held that Huang's claim failed because it did not meet the high standard of specificity requirements of Rule 9(b). This claim was dismissed with leave to amend with "the requisite standard of particularity."
  3. Washington's Privacy Act. Plaintiff's privacy claim also failed because it misapplied the Washington statute. The information was not "private" and was not "intercepted" or "recorded" by defendants, as required by the statute.  This claim was dismissed with prejudice.
  4. Washington's Consumer Protection Act. The Consumer Protection Act claim was also allowed to survive at the motion to dismiss stage. The court found that "defendants' alleged practices" could affect millions of people if plaintiff's allegations of IMDb.com's unfair and deceptive practices are true. 

On April 25, 2012, Huang filed a Second Amended Complaint (SAC), addressing the specificity in her fraud claim. In her SAC, Huang argues that defendants were engaged in data-mining, and that they "materially misrepresent...the safety, security and purposes for which they gather and use the personal and credit card information of consumers who subscribe to IMDbPro." She claims she would not have shared her credit card information if she knew the defendants would use "such information for other purposes." (The plaintiff and defendants disagree as to which documents represent the operative agreements in this matter.) Huang also adds a new claim about Amazon.com. She alleges that she purchased products from Amazon.com prior to subscribing to IMDbPro and  that "Amazon.com misrepresented in the Privacy agreement available on its website the terms on which Amazon.com would share her user information with IMDb.com."

After Huang filed her second amended complaint, defendants filed another Motion to Dismiss pursuant to Rules 12(b)(6) and 9(b) on May 9, 2012. In it, defendants argue that plaintiff's new claim about Amazon.com's Privacy Notice is a "thinly veiled attempt to keep Amazon.com in this lawsuit." Defendants also argue that plaintiff's SAC "comingles" defendants and fails to distinguish between Amazon.com and IMDb.com, as required for a state claim for fraud. They claim that plaintiff still does not specify "which statements are false, which statements IMDB.com knew were false and intended plaintiff to rely on, and which statements she had a right to rely on."  

Huang filed an opposition to the Motion on May 21, 2012, and defendants replied to the opposition on May 25, 2012.

On June 1, 2012, Huang filed a Motion for Relief from Trial Deadlines and to Continue Trial Dealines alleging defendants did not file substantial answers to her complaint and/or raise substantial defenses. The plaintiff also claims both parties have been "embroiled" in discovery disputes because Amazon claims to be exempt from full discovery. Defendants filed an Opposition to that motion on June 13, 2012, alleging that plaintiff was delaying her own responses to discovery and had failed to respond to efforts to negotiate a "mutally acceptable protective order." On June 15, 2012, Huang filed a Reply in support of her Motion for Relief from Trial Deadlines and to Continue Trial Date.  

The plaintiff and defendants asked the Court to enter a Stipulated Protective Order regarding discovery on June 28, 2012. 

 

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Leakers and the First Amendment

There has always been an active debate about whether the First Amendment affords government outsiders (like the media) any protection when they disseminate classified national security information without authorization.

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Falsity and the First Amendment: The U.S. Supreme Court Rules on the Stolen Valor Act

In the fourteen years that I practiced as a media defense lawyer before joining the Berkman Center, there was one sentence from one Supreme Court opinion that I learned to loathe above all others. It appears in Gertz v. Robert Welch, Inc., 418 U.S.

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Bland v. Roberts

Threat Type: 

Lawsuit

Date: 

04/24/2012

Party Receiving Legal Threat: 

Bobby Bland, Daniel Ray Carter. Jr., David W. Dixon, Robert W. McCoy, John C. Sandhofer, and Debra H. Woodward

Type of Party: 

Individual
Government

Type of Party: 

Individual
Government

Court Type: 

Federal

Court Name: 

United States District Court, E.D. Virginia, Newport News Division

Case Number: 

Civil Action No. 4:11cv45

Legal Counsel: 

James Harrell Shoemaker, Jr., Jason Eric Messersmith, William Vinton Hoyle, Jr.

Publication Medium: 

Social Network
Other

Relevant Documents: 

Status: 

Pending

Description: 

On March 3, 2011, Bobby Bland, along with five coworkers in the Sheriff's Department in Hampton, Virginia, sued their former employer, Sheriff B.J. Roberts, in the U.S. District Court for the Eastern District of Virginia alleging wrongful termination due to their support of Sheriff Robert's opposition in a 2009 re-election campaign. In their complaint, the plaintiffs claim Sheriff Roberts violated their First Amendment rights to freedom of speech and freedom of association when he fired them in December 2009 after he was re-elected. Four of the plaintiffs are sworn, uniformed deputy sheriffs. Bland and another plaintiff are unsworn, non-uniformed civilian employees within the Sheriff's Office.

The complaint alleges that Sheriff Roberts fired Bland and others because they supported the Sheriff Robert's opposition, Jim Adams, who previously worked at the Sheriff's Office for 16 years and was third in command as Lieutenant Colonel, though he had recently resigned in order to run against Roberts. The plaintiffs contend that Sheriff Roberts found out about their support of Adams, including two plaintiffs' online support of Adams' Facebook page (Carter, McCoy), one plaintiff "liking" Adams' Facebook page (Carter), other plaintiffs attending a campaign cookout allegedly for Adams (McCoy, Sandhofer, Carter), one plaintiff displaying a bumper sticker supporting Adams and making a negative statement with profanity to a poll worker about the Sheriff's election material (Dixon), and one plaintiff refusing to actively support the Sheriff Robert's reelection efforts as she had done in the past (Woodward).  

The plaintiffs further allege in their complaint that Sheriff Roberts knew of their active support of Adams, and that their terminations were "unlawful, retaliatory and improper in that the Defendant B.J. Roberts effected these terminations because the Plaintiffs exercised their rights to freedom of speech in refusing to support Roberts' re-election efforts and in actively supporting Roberts' opponent." They also allege that the Sheriff "used his authority to bolster his reelection efforts" by soliciting them to provide services in support of those efforts, including selling and buying tickets for campaign fundraisers. They demand monetary relief and reinstatement to their prior positions.

On December 9, 2011, Sheriff Roberts filed a motion for summary judgment in which he argued that there was no genuine issue of material fact because plaintiff's did not provide sufficient evidence on their First Amendment Retaliation Claim and First Amendment Assoication Claim. Roberts said he fired the plaintiffs because of poor work performance, budget constraints and  lack of harmony and efficiency" in the Sheriff's Office, not because of their support for Adams. Further, he alleged that during the 2009 election, he "had no knowledge of whether plaintiffs or any other appointee supported him or Adams."

In response to plaintiffs' First Amendment claims, Roberts argued that the claims fail because there was insufficient evidence to prove a "casual nexus between their alleged speech and Sheriff Roberts' decision not to reappoint them," citing McVey v. Stacy, 157 F.3d 271 (4th Cir. 1998). Similarly, the motion argues that plaintiffs' freedom of association claims must fail because plaintiffs could not establish any direct causation between their termination and their political support of Adams.  In addition, Sheriff Roberts offers affirmative defenses that he is entitled to qualified immunity in his individual capacity, and that he is barred by the Eleventh Amendment from being sued in his official capacity as Sheriff.

Plaintiffs filed their opposition to the motion for summary judgment on December 23, 2011, responding that there was a dispute of material fact as to whether they were terminated on the basis of (1) their political affiliation, in violation of their First Amendment rights as articulated in Elrod v. Burns, 427 U.S. 347 (1976) and (2) protected employee speech on matters of public concern under the Pickering and Connick test, balancing whether a public employee's speech is constitutionally protected. Pickering v. Board of Education of Township High School District, 391 U.S. 563 (1968); Connick v. Myers, 461 U.S. 138 (1983). The first argument was asserted by all plaintiffs; the latter claim was asserted only by Plaintiffs Carter, Dixon, McCoy and Woodward. 

In the Sheriff's reply to the plaintiffs' opposition, he argued that plaintiff's First Amendment claims fail because they were not engaging in First Amendment expression that is protected by the Constitution. Sheriff Roberts argues that Plaintiff Carter and McCoy's activities on Facebook, Plaintiff Woodward's conduct, and Dixon's statement to a poll worker were not constitutionally protected speech. Furthermore, Roberts alleges that plaintiffs could not prove that he [Sheriff Roberts] knew about their support of Adams or that he made his hiring decisions based on those facts.

On April 24, 2012, the District Court granted the defendant's Motion for Summary Judgment, holding that the plaintiffs asserting rights of freedom of speech failed to the first prong of the McVey test, i.e., speaking out on a matter of public concern, because they did not sufficiently engage in "expressive speech." While the election process was certainly a matter of public concern, the court found that the alleged speech at issue -- "liking" an opponent's Facebook page, having a car bumper sticker, allegedly using profanity at an election booth about the Sheriff's campaign literature, and refraining from supporting the Sheriff -- was not speaking out, and therefore was not speaking at all

The court further explained that Plaintiff Carter's "liking" of Adams' Facebook page was "insufficient speech to merit constitutional protection." The court held further that "[i]n cases where courts have found that consitutional speech protections extended to Facebook posts, actual statements existed within the record," and that "liking" the Facebook page was not an actual statement, but rather just "one click of a button."

The court also ruled against all plaintiffs on their claims of freedom of association, finding that there was insufficient evidence that the Sheriff knew about their "association" with the Adams campaign.  Finally the court held that "[e]ven if the Court found that Plaintiffs had adequately stated First Amendment claims, the Sheriff, in his official capacity, would still be immune from liability" under both the qualified immunity doctrine and the Eleventh Amendment.  The court based this ruling on the fact that the Sheriff in Virginia is a constitutional officer and that a suit against him in his official capacity is a suit against the State.

The plaintiffs filed a notice of appeal on May 24, 2012.

UPDATE:

July 20, 2012: Plaintiffs/appellants file their brief on appeal, arguing that they could not constitutionally be terminated based upon their political affiliations because they were not in confidential or policy-making positions as to which political loyalty was essential. They further argued that plaintiffs Carter, Dixon, McCoy and Woodward through the actions described above engaged in protected speech on a matter of public concern, that their interests outweighed the interests of the state in the Pickering balancing test, and that the defendant was not entitled to qualified immunity.

August 6, 2012: Facebook files an amicus brief in support of plaintiff/appellant Carter, arguing that a Facebook "like" is constituionally protected speech. The American Civil Liberties Union and ACLU of Virginia also file an amicus brief, arguing among other things that Carter, Dixon, McCoy and Woodward all engaged in protected speech regardless of the clarity, value or medium of the speech. 

September 14, 2012: Defendant files his appellee's brief, arguing that the district court correctly rejected all aspects of the plaintiffs' claims.

October 1, 2012: Plaintiffs file their reply brief. The reply presented additional arguments that the defendant was aware of the plaintiffs' political affiliation with and support for defendant's political opponent, and that the plaintiffs had established that their political activity was the cause of their termination.

September 18, 2013: The Fourth Circuit affirmed the district court in part, reversed in part, and remanded the case

The Court of Appeals held that Carter, Dixon, and McCoy had identified sufficient disputes of fact to allow their claims for reinstatement of their employment to continue, but affirmed as to all other claims. Specifically, the Court held that Carter, Dixon, and McCoy had engaged in speech protected by the First Amendment (including an extended discussion of the impact of a Facebook "like") and that they raised a material issue of fact as to whether they were terminated for that speech; however, plaintiffs Sandhofer, Woodward and Bland had failed to present evidence warranting an inference that they were terminated for their speech. The Court further found that: (1) there was evidence that Carter, Dixon & McCoy's employment positions were not so entwined with policy that they could be terminated for disloyalty to the Sheriff; (2) their speech was made in their private capacities and related to matters of public concern; and (3) there was no evidence of disruption to the workplace as a result of their speech. Accordingly, the Could held that the claims by Carter, Dixon and McCoy would survive summary judgment on the merits. 

However, the Court held that their claims against the Sheriff in his personal capacity were barred by the doctrine of qualified immunity, because prior case law was not clear enough for the Sheriff to know whether the plaintiffs held positions subject to dismissal for breach of loyalty. The Court also found that these three plaintiffs' claims for monetary relief against the Sheriff in his public capacity were barred by the Eleventh Amendment. Nevertheless, the Court held their claims for reinstatement to their prior positions could proceed, because the Eleventh Amendment does not bar prospective relief.  In the end, the Court remanded the case to the district court to proceed to trial on Carter, Dixon and McCoy's claims for reinstatement, but affirmed the dismissal of all other claims.

In an extended dissent, Judge Hollander of the Fourth Circuit argued that the Sheriff should not have been entitled to qualified immunity. She stated that prior case law clearly established that the Sheriff should have considered the specific duties with which Carter, Dixon, and McCoy were entrusted, and that taking those duties into account it should have been clear that they did not hold positions that could be terminated for disloyalty.

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DMLP Amicus Update: Narrow Victory in Massachusetts Anti-Counterfeiting Case

The DMLP recently appeared as an amicus curiae in Commonwealth v. Busa, a case brought in Boston Municipal Court under Massachusetts's anti-counterfeiting law, M.G.L. ch. 266 § 147 ("Section 147").

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(Don't) Blame the Messenger: What to Do about National Security Leaks

The Right of Publicity and Free Speech: DMLP Joins Amicus Brief in Hart v. Electronic Arts

Last week the Digital (nee Citizen) Media Law Project joined an amicus curiae brief filed in Hart v. Electronic Arts, Inc., currently before the United States Court of Appeals for the Third Circuit.

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DMLP files Amicus Brief Against Massachusetts's 'Anti-Counterfeiting' Law

Earlier this week the CMLP (under its new name, the Digital Media Law Project) sought leave to file an amicus brief in Boston Municipal Court in the case of Commonwealth v. Busa, which concerns a prosecution under Massachusetts's anti-counterfeiting law, M.G.L.

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DOJ's Public Statements Provide a Road Map for Citizens to Sue in Cop Recording Cases

Qualified immunity for police might be a thing of the past

In May 2010, Christopher Sharp used his cell phone to record video of his friend being arrested by the Baltimore Police at the Preakness Stakes. The police demanded that Sharp surrender his phone, stating that the contents might be evidence; when the phone was returned, Sharp discovered that the video he had made, plus a number of other unrelated videos, had been deleted.

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Citizen Counter-Surveillance of the Police? There's an App For That.

Herbert George Ponting and telephoto apparatus, Antarctica, January 1912 Despite the welcome 7th Circuit decision in ACLU v.

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The Score in Illinois: First Amendment 2, Eavesdropping Law 1

Once again, the CMLP is pleased to report that the First Amendment has scored an important victory in a case involving the recording of police officers in public. Last summer saw the strong pro-First Amendment decision from the U.S. Court of Appeals for the First Circuit in Glik v.

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U.S. Marine Faces Uphill Battle in First Amendment Challenge

What happens when the First Amendment collides with military decorum and respect for chain of command?  

It looks like we'll get to find out as the matter of Sgt. Gary Stein, the Marine who on a Tea Party Facebook page slammed President Obama and threatened to disobey his orders, rolls ahead. 

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Is 'Liking' on Facebook Protected Speech?

Venkat Balasubramani and Eric Goldman, over on Eric's blog, have highlighted a rather interesting if fundamentally flawed decision from the Eastern District of Virginia. 

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Suffolk County Police Department v. Datz

Date: 

07/29/2011

Threat Type: 

Police Activity

Party Receiving Legal Threat: 

Philip Datz

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court, Eastern District of New York

Legal Counsel: 

Robert Balin, Samuel Bayard, and Alison Schary, Davis Wright Tremaine LLP; Corey Stoughton, New York Civil Liberties Union; Mickey Osterreicher, National Press Photographers Association (Of Counsel)

Publication Medium: 

Broadcast

Relevant Documents: 

Status: 

Pending

Description: 

According to CBS, on July 29, 2011, Philip Datz ("Datz") was in Bohemia, New York filming police activity following a car chase as a videographer for the Stringer News Service. During the course of his filming, Suffolk County Police Sergeant Michael Milton ("Milton") approached and ordered him to leave. Datz moved approximately a block from where he was initially located and continued to film the police activity. Milton approached Datz a second time, arrested him, and seized his camera and videotape. (Datz's recording of the encounter can be viewed here.)

Datz was charged with obstructing governmental administration, N.Y. Penal Law § 195.05. The charge was later dismissed.

On April 11, 2012, Datz filed a lawsuit in the United States District Court in the Eastern District of New York against Milton and Suffolk County, alleging that the police violated Datz's rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution, Article I, Sections 8 and 12 of the New York State Constitution, as well as the Privacy Protection Act (42 U.S.C. § 2000aa). The complaint also contains claims of false arrest, assault, and battery. According to the complaint, Suffolk County Police seized the videotape from his camera as evidence and held it until one hour after his release that evening.

The complaint also makes several allegations  in support for its demand for injunctive relief against Suffolk County barring the county from obstructing journalists and members of the public who are recording police activity in public places. These allegations include several other incidents where Suffolk County police and firemen ordered Datz to stop filming police activity from public property, and some instances the police deliberately expanded crime scene perimeters to keep the press from filming crime scenes. 

Sergeant Michael Milton answered the complaint on May 2, 2012.

The case is currently in discovery. As of February 2014, dispositive motions are due March 24, 2014.

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CMLP ANNOUNCEMENT: Amicus Brief Filed Regarding Intersection of Trademark Law & Freedom of Speech

On January 18, 2012, the Citizen Media Law Project (under its new name, the Digital Media Law Project -- new website coming soon) filed an amicus brief in the Massachusetts Appeals Court in Jenzabar, Inc. v. Long Bow Group, Inc., No. 2011-P-1533. 

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In Case You Missed It the First Time, Supreme Court Police Reenact Cohen v. California

Say you're in law school, and your professor gives you the following hypothetical:

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