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Posts Tagged ‘Traxler’

A split panel of the Fourth Circuit today reinstated the free speech and free association claims of some sheriff’s deputies in Hampton, Virginia who alleged that they had been fired from their jobs for supporting the incumbent sheriff’s political opponent. Among the issues in the case was whether clicking “Like” on the challenger’s campaign page was speech within the protection of the First Amendment. The district court said no: “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.” But the Fourth Circuit today disagreed. Here is the relevant portion of the Court’s analysis (discussing the claim of one Carter):

Here, Carter visited the Jim Adams’s campaign Facebook page (the “Campaign Page”), which was named “Jim Adams for the Hampton Sheriff,” and he clicked the “like” button on the Campaign Page. When he did so the Campaign Page’s name and a photo of Adams –which an Adams campaign representative had selected as the Page’s icon – were added to Carter’s profile, which all Facebook users could view. On Carter’s profile, the Campaign Page name served as a link to the Campaign Page. Carter’s clicking on the  “like” button also caused an announcement that Carter liked the Campaign Page to appear in the news feeds of Carter’s friends. And it caused Carter’s name and his profile photo to be added to the Campaign Page’s “People [Who] Like This” list.

Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.

Aside from the fact that liking the Campaign Page constituted pure speech, it also was symbolic expression. The distribution of the universally understood “thumbs up” symbol in association with Adams’s campaign page, like the actual text that liking the page produced, conveyed that Carter supported Adams’s candidacy. See Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curiam) (holding that person engaged in expressive conduct when there was “[a]n intent to convey a particularized message . . ., and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it”); see also Tobey v. Jones,  706 F.3d 379, 388 n.3 (4th Cir. 2013).

In sum, liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it  is the Internet equivalent of displaying a political sign in  one’s front yard, which the Supreme Court has held is  substantive speech. See City of Ladue v. Gilleo, 512 U.S. 43,  54-56 (1994). Just as Carter’s placing an “Adams for Sheriff” sign in his front yard would have conveyed to those passing his home that he supported Adams’s campaign, Carter’s liking Adams’s  Campaign Page conveyed that message to those viewing his profile  or the Campaign Page.15 In fact, it is hardly surprising that  the record reflects that this is exactly how Carter’s action was  understood. See J.A. 160 (McCoy’s testimony that in light of  Carter’s liking Adams’s Campaign Page, “everybody was saying  that . . . Carter is out of there because he supported Adams  openly”); see also J.A. 793 (Sheriff’s Office employee stating  that Roberts had said that “certain employees were on the  Facebook page of his opponent, Jim Adams, indicating their support of Adams for Sheriff”).

All of this sounds just right.

Chief Judge Traxler wrote the opinion for the court in Bland v. Roberts, in which Judge Thacker joined.  Judge Hollander (D.Md., sitting by designation) wrote a separate opinion concurring in part and dissenting in part. The judges were not split on the liking-as-speech issue but on the application of qualified immunity, a split largely traceable to different views about the scope of the en banc holding in Jenkins v. Medford, 119 F.3d 1156 (4th Cir. 1997) (en banc).

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John Coleman filed a FOIA request seeking some information from the DEA. The DEA eventually denied the request. But it took a really long time to do so. And when the DEA finally responded, they blamed Coleman because he did not prepay a certain fee. When Coleman sued the DEA in federal court to get the information he requested under FOIA, the DEA said he should lose because he had not exhausted his administrative remedies. The district court agreed with the DEA. Today, the Fourth Circuit decided Coleman’s appeal. The first sentence of the second paragraph of Judge Wilkinson’s opinion for the court in Coleman v. DEA states: “Having exhausted the litigant, the DEA proceeded to argue that it was Coleman who had failed to pay its fee request for a preliminary search of the documents and to exhaust his administrative remedies.” Who do you think won the appeal?

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The Fourth Circuit today affirmed the grant of summary judgment to Chesterfield County (VA) on free speech, free exercise, RLUIPA, and equal protection challenges brought by Patricia Moore-King. Ms. Moore-King, who practices spiritual counseling as Psychic Sophie, had challenged various Chesterfield County licensing and zoning restrictions that apply to her because she fits within the County Code’s definition of a “fortune-teller.” (For news coverage of the oral argument, see here.) Judge Duncan wrote the opinion for the court, in which Chief Judge Traxler and Judge Wilkinson joined.

From a doctrinal perspective, two noteworthy aspects of  Moore-King v. County of Chesterfield are its discussion of the professional speech doctrine and its analysis of the difference between “religion” and a “way of life.”

With respect to professional speech, Judge Duncan writes that “the relevant inquiry to determine whether to apply the professional speech doctrine is whether the speaker is providing personalized advice in a private setting to a paying client or instead engages in public discussion and commentary.”

With respect to the definition of religion, Judge Duncan distinguishes between “personal and philosophical choices consistent with a way of life,” on one hand, and “deep religious convictions shared by an organized group deserving of constitutional solicitude,” on the other hand. The court determined that Moore-King’s practices fit in the philosophical-not-religious category: “That a wide variety of sources–the New Age movement, the teachings of Jesus, natural healing, the study of metaphysics, etc.–inform and shape Moore-King’s ‘inner flow’ does not transform her personal philosophical beliefs into a religion any more than did Thoreau’s commitment to Transcendentalism and idealist philosophy render his views religious.”

From a practice perspective, it may be worth noting that Chesterfield County prevailed even though the court knocked down its lead defense to the free-speech claim. That defense rested on two premises, both of which the panel rejected: “(1) fortune telling is inherently deceptive; and (2) inherently deceptive speech warrants no protection under the First Amendment.”

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Justin Levitt has a post with this title at Election Law Blog, with an overview and links to coverage. The decision happened yesterday, in United States v. Danielczyk. (See here for my oral argument preview and a link to AP coverage of the oral argument itself.)

Judge Gregory wrote the opinion, which was joined in by Chief Judge Traxler and Judge Diaz. This opinion must have brought Judge Gregory some satisfaction. The controlling Supreme Court decision, FEC v. Beaumont, came to the Supreme Court out of the Fourth Circuit. Judge Gregory authored a panel dissent in that case, and the outcome he advocated in dissent was adopted by the Supreme Court.

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The Fourth Circuit issued a published opinion in two argued cases today. The result in each case was to vacate and remand a decision out of the Eastern District of Virginia. That may be all that the decisions have in common, however. The first decision left the central issue open for resolution on remand after articulating the legal test for the district court to apply, while the second decision resolved the central issue while seemingly adopting a newly constrictive test.

In Oberg v. Kentucky Higher Education Student Loan Corporation, the court addressed whether corporations organized by Kentucky, Pennsylvania, Vermont and Arkansas were “persons” subject to suit under the False Claims Act, or instead “state agencies” not subject to suit under the False Claims Act as interpreted in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 787-88 (2000). The appeals court held that the district court applied the wrong legal test in deciding that the corporations were not subject to suit. The Fourth Circuit vacated and remanded for district court application of the test developed under the test that is also used for the “arm of the state” prong of sovereign immunity analysis. Judge Motz wrote the opinion for the court, in which Chief Judge Traxler and Judge Keenan joined.

In Friends of Back Bay v. U.S. Army Corps of Engineers, the court held that the Army Corps of Engineers improperly issued a permit without completing an EIS under NEPA. Among other things, the court near the end of its opinion aligned the Fourth Circuit with the Second Circuit in stating that “the policy goals underlying NEPA are best served if agencies err in favor of preparation of an EIS when . . . there is a substantial possibility that the [proposed] action may have a significant impact on the environment.” I am not a NEPA expert, but the appellate court’s application of the various EIS factors and its adoption of the Second Circuit’s “substantial possibility” test seemed somewhat casual. Judge King wrote the opinion for the court, in which Judge Gregory and Judge Floyd joined.

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The Fourth Circuit today reinstated the claim of a Muslim prisoner incarcerated in Virginia who sued state correctional officials under the federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”) after they refused to permit him to grow a short beard for religious reasons. The decision means that the prisoners claim can go forward, but further proceedings will be needed to determine whether the prisoner actually wins on the merits.

Chief Judge Traxler wrote the opinion for the court in Couch v. Jabe, in which Justice O’Connor and Judge Shedd joined. Here is the opening of the opinion:

William R. Couch, a Sunni Muslim currently incarcerated in a state correctional facility, brought this action alleging that prison officials violated the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) by refusing to permit him to grow a one-eighth-inch beard in compliance with the requirements of his faith. The district court granted summary judgment to the prison officials, and Couch appeals. Because the prison officials did not explain how a one-eighth-inch beard would implicate health or security concerns, they failed
to satisfy their burden under RLUIPA of showing that the general grooming policy that they rely upon is the least restrictive means of furthering a compelling governmental interest. Accordingly, we vacate the grant of summary judgment and remand for further proceedings.

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The Fourth Circuit today partially reversed a district court decision that had granted broad protection to Google against trademark infringement claims arising out of its use of trademarked terms in keywords and advertisement text. Chief Judge Traxler wrote the opinion for the court in Rosetta Stone v. Google, in which Judge Keenan and Senior Judge Hamilton joined.

The language software company Rosetta Stone sued Google in 2009 asserting claims of: (1) direct trademark infringement; (2) contributory infringement; (3) vicarious infringement; (4) trademark dilution; and (5) unjust enrichment (under Virginia law). The district court granted summary judgment to Google on all five counts (see here for district court’s trademark claims analysis). Today’s decision affirms the win for Google on vicarious infringement and unjust enrichment, but vacates and remands with respect to direct infringement, contributory infringement, and trademark dilution.

With respect to direct infringement, the appeals court rejected Rosetta Stone’s argument that it is reversible error for a district court to decline to address all factors in the Fourth Circuit’s nine-factor, non-exclusive, totality-of-the-circumstances test for likelihood of confusion. The opinion suggests, however, that “[i]n the future . . . a district court opting not to address a given factor or group of factors should provide at least a brief explanation of its reasons.” The appellate court did, however, fault the district court for applying a too-demanding standard to Rosetta Stone’s evidence of intent to cause confusion, actual confusion, and consumer sophistication. This portion of the opinion contains a discussion of anecdotal and survey evidence, including in-house studies on confusion performed by Google. The Fourth Circuit also criticized the district court’s functionality analysis for focusing on whether Rosetta Stone’s mark made Google’s product more useful, rather than considering whether the mark was functional as Rosetta Stone used it. The appellate disposition of this functionality affirmative defense precludes Google’s further use of it in the litigation, but the remainder of the disposition simply leaves open the path for future litigation over the facts.

On contributory infringement, the Fourth Circuit held that the district court relied too heavily on the Second Circuit’s decision in Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010), which was an appeal from a jury verdict rather than a decision at the summary judgment stage.

Finally (with respect to the claims that the Fourth Circuit vacated), the court held that the district court impermissibly collapsed good faith and nominative fair use into a single question in assessing trademark dilution. The appeals court further held that the district court mistakenly read Louis Vuitton Malletier S.A. v. Haute Diggity Dog, L.L.C., 507 F.3d 252 (4th Cir. 2007) to require proof of actual economic loss or reputational injury, rather than a likelihood of dilution.

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