Ban of sale to minors and labeling requirements not narrowly tailored to meet compelling state interest.

In August 2005, the Illinois State Legislature enacted the Sexually Explicit Video Game Law (”SEVGL”), which criminalized the sale of “sexually explicit” video games to minors, and required purveyors of such games to conspicuously label any sexually explicit game with a four square inch label reading “18″, and provide relevant signage within the stores where games are sold.

The Entertainment Software Association, among others, filed suit against the State of Illinois the day after the SEVGL was enacted, claiming that the law violated the First Amendment. The district court permanently enjoined enforcement of the law, and the State of Illinois sought review. On appeal, the Seventh Circuit affirmed the lower court’s holding that the statue was not narrowly tailored.

An integral part of the court’s analysis was its concern that the statute would criminalize the sale of material “without concern for the game considered in its entirety or for the game’s social value for minors.” As a case in point, the court looked to the game God of War, which tracks the Homeric epic Odyssey in content and theme. Although that game shows exposed breasts, the court held that “there is serious reason to believe that a statute sweeps too broadly when it prohibits a game that is essentially an interactive, digital version of the Odyssey.”

As for the unconsitutionality of the labeling and signage requirement, the court similarly held that such a requirement was not narrowly tailored. The government had not shown that an educational campaign about the video game rating system would not have been just as effective as labeling. The requirement of a sticker that covers a substantial portion of the box was also unjustified.

Entertainment Software Association v. Blagojevich, No. 06-1012, — F.3d —-, (7th Cir., November 27, 2006).

(This case came out a couple of weeks ago and has been written about quite a bit, but here’s my take on it anyway.)

Plaintiff Kinderstart.com LLC, the operator of an online directory and search engine for information about the care of young children, filed suit against Google after a “cataclysmic fall” in the number of visitors that the Kinderstart site received. It claimed that Google wrongfully blocked search results for Kinderstart, and intentionally lowered the site’s number in Google’s PageRank system. In an unpublished and noncitable opinion, the United States District Court for the Northern District of California dismissed Kinderstart’s complaint, and granted leave to amend.

Kinderstart alleged a number of causes of action, including violation of the First Amendment right to free speech and unlawful monopolistic behavior in violation of the Sherman Act. The court held that Kinderstart failed to allege facts sufficient to entitle it to relief.

In dismissing the First Amendment claim, the court held that Google is not a state actor. Although the Ninth Circuit employs a number of tests to determine whether state action exists, Google did not meet any of those tests. Kinderstart did not show that Google performed a public function, nor did it show that Google was involved in any joint action with the government. The complaint did not sufficiently allege that Google was in any way compelled or coerced by the government, or that there was any nexus or entwinement between Google’s actions and the government’s actions. No facts in the complaint pointed to any “symbiotic relationship” – a necessary element in a special Ninth Circuit test for state action – between Google’s conduct and the financial success of any governmental entity.

The court also rejected Kinderstart’s First Amendment argument that by making the search engine “freely available to anyone with an Internet connection,” Google had created a private space dedicated to public use in which the alleged restrictions violated free speech. On this point, Kinderstart’s own allegations of Google’s vast monetization – to the tune of $3.1 billion in 2005 – contradicted assertions that the sole function of Google is to promote open and free communication.

Another of Kinderstart’s claims was that by blocking links to the Kinderstart site in its search results, Google had engaged in anticompetitive behavior that is prohibited under Section 2 of the Sherman Act (15 U.S.C. §2). To succeed on this claim, Kinderstart would have had to allege a specific intent on Google’s part to destroy competition, conduct directed toward accomplishing that purpose, a dangerous possibility of succeeding at destroying competition, and resulting antitrust injury.

The court held that Kinderstart failed to allege enough facts to support this claim. There was no sufficient allegation that Google had denied access to an essential facility or refused to deal. Kinderstart did not explain how Google’s alleged conduct demonstrated the required intent for a Sherman Act violation. Moreover, noting that there generally is “no duty to aid competitors,” the court concluded that Google’s alleged removal of a competing search engine from its results was merely legitimate competitive action.

Kinderstart.com, LLC v. Google, Inc., No. 06-2057, (N.D. Cal., July 17, 2006) (Not selected for official publication).

The Childrens Internet Protection Act (”CIPA”) curbs federal funding for any public library or school that will not employ software filters to prohibit minors from accessing pornographic materials. There is a bill [H.R. 5319] before Congress called the Deleting Online Predators Act (DOPA for short) that seeks to expand the scope of CIPA. The Bill calls for restricting federal funding for public libraries and schools that do not block minors’ access to chat rooms and social networking sites (such as MySpace.com).

CIPA withstood a constitutional challenge before the United States Supreme Court in 2003. [U.S. v. American Library Assn., 539 U.S. 194 (2003)] If DOPA is enacted, it will likely face First Amendment scrutiny as well. Might the analysis be different this time around?

In the American Library Association case, the Supreme Court observed that “most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries’ judgments to block online pornography any differently, when these judgments are made for just the same reason.” Accordingly, it does not violate library partrons’ First Amendment rights for there to be filters on the computers at the library.

In blocking access to chat rooms and social networking sites, aren’t libraries going a step futher, inasmuch as they are literally obstructing the “speech” of library patrons? Perhaps. But a court hearing such a challenge would once again have a ready analogy from real-world library experience: when was the last time you saw a successful constitutional challenge to a librarian enforcing the library’s quiet rule?

[News.com's coverage]

After seeing what it believed to be defamatory statements about it on Yahoo! Finance and Silicon Investor message boards, plaintiff Matrixx Initiatives, Inc. (”Matrixx”) filed a lawsuit against several “John Doe” defendants. Through information obtained from Yahoo!, Matrixx determined that certain of the alleged defamatory statements were posted with computers owned by Barbary Coast Capital Management. Matrixx took the deposition of one Mr. Worthington, the manager of Barbary Coast, asking him to identify the anonymous Internet users who posted the alleged defamatory statements. Worthington refused.

Matrixx filed a motion to compel Worthington to answer the questions, and the trial court granted the motion. Worthington and Barbary Coast sought review, arguing that the posters’ First Amendment right to speak anonymously should prohibit the disclosure of their identities. On appeal, the court affirmed the decision of the lower court, holding that Worthington and Barbary Coast did not have standing to invoke the anonymous posters’ First Amendment rights.

In reaching its decision, the court distinguished two other cases in which the recipient of a subpoena did have standing to challenge the unmasking of another person. In the cases of In re Subpoena Duces Tecum to America Online, Inc., 2000 WL 1210372 (Va. App. 2000), and In re Verizon Internet Services, 257 F.Supp.2d 244 (D.D.C. 2003)(both cases reversed on other grounds), Internet service providers did not have to identify anonymous customers pursuant to subpoenas served on the ISPs. In each of these cases, the courts held that the ISPs had standing to assert the customers’ rights to remain anonymous, because the customer relationships were sufficiently close. In this case, however, the court held that “by contrast, we are presented with no ‘close relationship’ — or, indeed, any relationship — between appellants and the individuals for whom they are seeking First Amendment protection.”

Matrixx Initiatives, Inc. v. Doe, — Cal.Rptr.3d —, 2006 WL 999933 (Cal.App. 6 Dist, April 18, 2006).

Website operators do not have to disclose names of financial contributors.

In 1959 the U.S. Supreme Court held that the NAACP did not have to disclose the names of its members because to do so would violate the members’ right to freedom of assembly. NAACP v. Alabama, 357 U.S. 449 (1959).

On March 24, 2006, the Florida Court of Appeal held, on similar grounds, that financial supporters of a website that is used to fund litigation against the city of Maitland, Florida could remain anonymous.

Michael and Joan Matthews believed that the city of Maitland did not follow proper procedures when it approved the development of a seven-story, multi-use structure. They filed a lawsuit challenging the development, and started a website through which supporters could donate funds.

When the city took Joan Matthews’s deposition, she would not disclose the names of the contributors to the website. Similarly, Michael Matthews would not answer written interrogatories on the subject. The city filed a motion to compel the plaintiffs to turn over the names of their contributors, and the trial court granted the motion. The plaintiffs sought review of the trial court’s order, and the Court of Appeal reversed.

The appellate court noted the chilling effect that could occur if supporters of political causes who wished to remain anonymous ran the risk of being revealed in litigation of this sort. Because the names of the supporters was not relevant to the underlying dispute over the real estate development, disclosure would be improper. The court further observed that:

[T]he freedom to associate for the advancement of beliefs, whether pertaining to political, economic, religious or cultural matters, is an inseparable aspect of the liberty assured by the due process clause and . . . the compelled disclosure of membership in an organization engaged in advocacy constitutes an interference with the right to freedom of assembly.

Matthews v. City of Maitland, — So.2d —, 2006 WL 733966 (Fla. App. 5 Dist. March 24, 2006).

We will have to wait and see - court tosses claim because plaintiff lacked standing.

Plaintiff Caldwell was “offended” and felt like an “outsider” when she viewed a website called “Understanding Evolution” which was published by the University of California. She filed a federal lawsuit, alleging that the site, funded in part by a grant from the National Science Foundation, violated the First Amendment Establishment Clause by endorsing certain views on religion. For example, Caldwell claimed the site put forth the notion that “the theory of evolution is not in conflict with properly understood Christian or Jewish religious beliefs.”

The defendants, which included the director of the University of California Museum of Paleontology and a UC Berkeley biology professor, moved to dismiss Caldwell’s suit. The U.S. District Court for the Northern District of California granted the motion to dismiss.

The court held that plaintiff Caldwell lacked standing to pursue the Establishment Clause action. Among other things, she had failed to allege that she suffered an “injury in fact,” which is required for a plaintiff to sustain a lawsuit.

In reaching the conclusion that the evolution website did not cause Caldwell to suffer an injury in fact, the court first looked to the holding of the U.S. Supreme Court’s decision in Valley Forge Christian College v. Am. United for Separation of Church & State, 454 U.S. 464 (1982). Being “offended” and feeling like an “outsider” were simply “psychological consequence[s]” produced “by observation of conduct with which [Caldwell] disagrees,” and were merely generalized grievances against the defendants, insufficient to confer injury in fact.

The court went on to reject Caldwell’s comparison of the evolution website to a public park containing religious symbols, finding the analogy “untenable”:

[A] citizen voluntarily choosing to access the internet who comes across an unwelcome message on a website page is not necessarily prevented from accessing the whole of the internet; the citizen may choose, with a simple click of the mouse, to access a different and unoffensive webpage or website.

Further, the court noted that allowing a plaintiff to claim injury from being “offended” by merely looking at a website would be the start down a slippery slope:

Given this massive appeal and impossibly broad spectrum [of the internet], it is simply inconceivable that the mere viewing of certain webpages . . . is sufficient to give rise to injury in fact standing. If this were so, then every webpage on the internet could give rise to a claim, simply based on an individual’s negative emotional response to that webpage.

Caldwell v. Caldwell, (Slip Op.) 2005 WL 618511 (N.D. Cal. March 13, 2006).

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Third Circuit reverses dismissal of indictment against website operator.

The recent Third Circuit decision in the case of U.S. v. Extreme Associates is important to the law of the Internet, because from it we learn that the federal statutes which prohibit the distribution of obscene material – over the Internet or otherwise – are not unconstitutional. At least not yet.

Defendant Extreme Associates, the operator of an adult website, was indicted for distributing obscene material in violation of certain federal obscenity statutes (18 U.S.C. 1461 and 1465). The District Court, concluding that the Supreme Court’s pro-privacy decision in Lawrence v. Texas, 539 U.S. 558 (2003) had seriously undermined the constitutionality of the statutes, dismissed the indictment.

On appeal, the Third Circuit concluded that the District Court overstepped its bounds by declaring the statutes unconstitutional, where the Supreme Court has not expressly declared the statutes unconstitutional. The Court reaffirmed this essential statement of the doctrine of stare decisis: “For district and appellate courts in our judicial system, [a Supreme Court decision] dictates the result in analogous cases unless and until the Supreme Court expressly overrules the substance of its decision.”

U.S. v. Extreme Associates, — F.3d —, 2005 WL 3312634 (3d Cir., December 8, 2005).

Detailed coverage of the constitutional issues in this article.

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The U.S. District Court for the Southern District of Indiana handed down a controversial ruling on November 30, 2005, permanently enjoining the Indiana House of Representatives from beginning its meetings with any form of sectarian prayer. One of the issues in the case was whether the plaintiffs had standing to challenge the legislature’s practice.

As part of its analysis in finding in favor of the plaintiffs on the standing issue, the court observed that the House provided streaming video of each of its meetings over the Internet. This video included the invocation. There were a total of 53 opening prayers in the 2005 session, and each of these was “a few minutes in length.” The cost to stream the video over the Internet during the 2005 session was $1.88 per minute.

The court concluded that the taxpayers who had footed the bill for these costs were allowed to bring the action in federal court. The court stated:

In this case, each of the plaintiffs is an Indiana taxpayer. Indiana tax funds are spent on the House practice of prayer by [among other things] streaming video of the prayers over the Internet. Such expenditures are measurable disbursements of government funds, occasioned solely because of the prayer practice. These expenditures are sufficient to support standing for the plaintiff-taxpayers who object to the practice supported by the expenditures.

Hinrichs v. Bosma, — F.Supp.2d —-, 2005 WL 3263883 (S.D.Ind., November 30, 2005).

The recent case of Doe v. Cahill, coming to us from the Supreme Court of Delaware, illustrates a court’s willingness to ensure adequate safeguards to protect anonymous speech on the Internet.

In September of 2004, an anonymous visitor to a Smyrna, Delaware community weblog posted comments about city councilman Patrick Cahill, which Cahill believed to be damaging to his reputation. Cahill filed a defamation lawsuit. Because he did not know the identity of the anonymous commenter, he filed suit against “John Doe,” and began procedures under Delaware law to discover Doe’s true identity. Cahill learned that Doe used Comcast as an Internet service provider, and obtained a court order requiring Comcast to disclose Doe’s real name.

As required by the federal Cable Communications Policy Act of 1984, at 47 U.S.C. §551(c)(2), Comcast notified Doe of the request for information about his identity. [More on the Cable Communications Policy Act.] In response, Doe sought an emergency protective order to bar Comcast from turning over his information. The trial court denied Doe’s request for a protective order, and held that Cahill could obtain Doe’s identity from Comcast. Doe appealed directly to the Delaware Supreme Court. On appeal, the Court reversed the lower court’s decision.

The Supreme Court determined that the trial court had applied too low a standard in testing whether Comcast should be ordered to turn over Doe’s identity. The trial court had applied a “good faith” standard, namely, that disclosure was warranted because Cahill had established through his pleadings that he had a legitimate, good faith basis on which to bring the defamation claim.

The Supreme Court held that such a low standard was not sufficient to protect one’s right to speak anonymously. The lower, good faith standard might encourage meritless lawsuits brought merely to uncover the identities of anonymous critics. Accordingly, the Supreme Court adopted a standard “that appropriately balances one person’s right to speak anonymously against another person’s right to protect his reputation.”

The Court held that before a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process, he must come forth with facts sufficient to defeat a summary judgment motion. Said another way, before a Delaware court will order an anonymous speaker to be unmasked, the plaintiff has to present evidence creating a genuine issue of material fact for each element of the defamation claim.

Applying that standard to the present case, the court held that “no reasonable person could have interpreted [Doe's] statements to be anything other than opinion.” The court observed that its conclusion was supported by the “unreliable nature of assertions posted in chat rooms and on blogs.” The case was dismissed.

Doe v. Cahill, — A.2d —, 2005 WL 2455266 (Del., October 5, 2005).
[Full text of decision in PDF]

Plaintiff de Mino, a part-time faculty member at the University of Houston Downtown, filed suit against the University, claiming that various restrictions placed on the use of school e-mail accounts violated the First Amendment right to free speech.

Specifically, de Mino complained of the University’s practice of shutting down e-mail accounts for adjunct professors during the summer, when they were not under contract to teach. He further complained of the inability to transmit e-mail after his account had reached its data storage limit. De Mino had other problems with the e-mail system when he failed to designate his personal e-mail address as legitimate, thus certain messages he had sent to other faculty had been caught in the system’s spam filter. De Mino contended that he was denied access when he tried to communicate with other faculty regarding University policies.

The court granted summary judgment in favor of the University, and dismissed the lawsuit. In deciding on de Mino’s First Amendment claim, the court looked primarily to two tests used to analyze such claims in the education context.

Under the Perry test (Perry Educ. Assn v. Perry Local Educators’ Assn., 460 U.S. 37 (1983)), educational authorities may reserve an internal mail system for its intended purposes, so long as there is no discrimination on the basis of viewpoint and the limitations imposed are reasonable in light of the purpose of the forum. Under the Tinker test, (Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1969)), teacher communications may be suppressed only when the expression or its method of exercise materially and substantially interferes with the activities or discipline of the school.

In this case, the court held that the restrictions on de Mino’s e-mail account satisfied these tests. The limited duration of adjunct accounts, as well as the spam filters and storage limits were not content- or viewpoint-based restrictions, and were reasonable in light of the need to preserve the integrity of the IT system. Doing away with such restrictions (and allowing open access to spam and unlimited data storage) would have been a substantial interference with the activities of the school.

Faculty Rights Coalition v. Shahrokhi, 2005 WL 1657116 (S.D.Tex., July 13, 2005).