Monday, May 31, 2010
The Ninth Circuit has reversed in part a lower court ruling in World Wide Rush v. City of Los Angeles, which challenges the city's billboard regulation scheme as an unconstitutional limit on commercial speech.
The City regulates signs, including billboards, through Chapter I, Article 4.4 of the Los Angeles Municipal Code ("LAMC"). Article 4.4's stated purpose is to "promote public safety and welfare" by "provid[ing] reasonable protection to the visual environment" and by ensuring that billboards do not "interfere with traffic safety or otherwise endanger public safety." LAMC § 14.4.1. Article 4.4 prohibits some types of billboards and restricts the size, placement, and illumination of others.
These appeals arise from First Amendment challenges to certain content-neutral provisions of Article 4.4: the "Freeway Facing Sign Ban" and the "Supergraphic and Off-Site Sign Bans."
Article 4.4's Freeway Facing Sign Ban prohibits billboards located within 2,000 feet of and "viewed primarily from" a freeway or an on-ramp/off-ramp. LAMC § 14.4.6(A). Notwithstanding the Freeway Facing Sign Ban, the City has permitted freeway-facing billboards in some circumstances, two of which are applicable here. First, in 1999, the City adopted an ordinance authorizing billboards near the Staples Center, a state-of-the-art sports and entertainment complex that was developed to eliminate blight and dangerous conditions in downtown Los Angeles. See Los Angeles, Cal., Ordinance No. 172465 (1999). The City asserted that the nature of the Staples Center's use, coupled with its location in the center of a highly urbanized area, required billboards that could effectively communicate event-related information. Id. Today, there are several freeway facing billboards near the Staples Center, including some that use flashing displays and frequently changing digital content.
The City made another exception to the Freeway Facing Sign Ban in 2008, when it undertook plans to renovate Santa Monica Boulevard with the aim of improving the flow of traffic between the 405 Freeway and the Beverly Hills border. See Los Angeles, Cal., Ordinance No. 179827 (2008). However, the targeted traffic corridor was home to sixteen billboards, the outright elimination of which might have triggered the City's obligation to compensate the billboards' owners under California's eminent domain law. See Cal. Bus. & Prof. Code § 5412. To avoid the requirements of takings law, including the obligation of just compensation, the City agreed with the billboard owners that four sign faces could be relocated to a newly created special use district ("SUD") near Fifteenth Street. While the relocated billboards would face a freeway, the Fifteenth Street SUD resulted in a net reduction of billboards in the City.
The district court granted WWR summary judgment on its First Amendment claims.... It concluded that the Freeway Facing Sign Ban violates the First Amendment because the City's decisions to allow freeway facing billboards at the Staples Center and in the 15th Street SUD undermine its stated interests in safety and aesthetics. ... It ruled that "preserving even one freeway-facing sign" was fatal to the Freeway Facing Sign Ban....The district court also concluded that the Supergraphic and Off-Site Sign Bans violate the First Amendment because "the City can avoid the blanket ban on off-site and supergraphic signs simply by enacting a specific plan in a certain area, but there are no standards that would prevent the City from enacting a specific plan because it wishes to approve particular speech or a particular speaker." ...Further, it found that the requirement that SUDs and development agreements conform to specific plans is "a loophole that eviscerates the standards" governing SUDs and development agreements.... The district court concluded, "The City has set up a system that allows it to eliminate speech based on content." ...Accordingly, the district court entered an order enjoining the City from enforcing the Freeway Facing Sign Ban and the Supergraphic and Off-Site Sign Bans as to WWR's billboards.
The City thereafter decided that several of WWR's supergraphic billboards violated other Article 4.4 provisions not covered by the district court's injunction. For instance, the City cited WWR for violations of Article 4.4's regulations restricting the size of "wall signs" and for failing to obtain proper permits for several billboards. Faced with the new citations, WWR returned to the district court, arguing that the City was using other provisions of Article 4.4 to circumvent the district court's order and that it could not obtain the necessary permits because the City continued to enforce the invalidated provisions. The district court concluded that the City improperly had denied WWR permits and issued WWR citations under the guise of other Article 4.4 provisions, when, in fact, the City was continuing to enforce the Supergraphic and Off-Site Sign Bans in contravention of the injunction. ...The district court found the City in civil contempt and required it to discharge certain citations.
As a general matter, there is no question that restrictions on billboards advance cities' substantial interests in aesthetics and safety. ... However, a city "may diminish the credibility of [its] rationale for restricting speech in the first place" where it exempts some speech from the general restriction. ...The critical question is whether the City "denigrates its interest in . . . safety and beauty and defeats its own case by permitting" freeway facing billboards at the Staples Center and in the Fifteenth Street SUD while forbidding other freeway facing billboards. ... "To put it in the context of the Central Hudson test, a regulation may have exceptions that undermine and counteract the interest the government claims it adopted the law to further; such a regulation cannot directly and materially advance its aim," and is, therefore, unconstitutionally underinclusive.
Here, the City's exceptions to the Freeway Facing Sign Ban do not undermine the City's interests in aesthetics and safety. Indeed, the exceptions were made for the express purpose of advancing those very interests. Allowing billboards at the Staples Center was an important element of a project to remove blight and dangerous conditions from downtown Los Angeles. Similarly, the Fifteenth Street SUD was an outgrowth of the City's efforts to improve traffic flow, and thereby safety, on Santa Monica Boulevard. Not only did the agreement to allow signs in the Fifteenth Street SUD advance that project, it also resulted in a net reduction of billboards in the City. Ironically, the most significant denigration to the City's interests in traffic safety and aesthetics might result, not from allowing the freeway facing billboards at the Staples Center and in the Fifteenth Street SUD, but instead from strict adherence to the Freeway Facing Sign Ban, which might have severely hampered, if not completely defeated, both projects.
The district court took an all-or-nothing approach to its constitutional analysis of the Freeway Facing Sign Ban, stating that to "preserv[e] even one freeway-facing sign . . . undermines the City's stated interests in traffic safety and aesthetics." .... Our First Amendment jurisprudence, however, contemplates some judicial "deference for a municipality's reasonably graduated response to different aspects of a problem." As the Supreme Court has explained, "It does not follow from the fact that the city has concluded that some commercial interests outweigh its municipal interests in this context that it must give similar weight to all other commercial advertising."...Moreover, exceptions to the Freeway Facing Sign Ban must be considered holistically, not in isolation. Again, the Supreme Court has explained, "[T]he effect of the challenged restriction on commercial speech ha[s] to be evaluated in the context of the entire regulatory scheme, rather than in isolation."
"[E]valuated in the context of the entire regulatory scheme," the challenged exceptions to the Freeway Facing Sign Ban do not render the Ban "so pierced by exceptions and inconsistencies" as to be unconstitutionally underinclusive. ... The City reasonably may have concluded that, on balance, safer and more attractive thoroughfares would result from renovations to Santa Monica Boulevard and a reduction in the City's total number of billboards, even if this required installation of some freeway facing billboards along Fifteenth Street. The City also reasonably may have concluded that the benefits of redeveloping and attracting people to an otherwise dangerous and blighted downtown area outweighed the harm of additional freeway facing billboards restricted to that area.
In concluding otherwise, the district court relied on the Supreme Court's decision in Greater New Orleans. There, the Court concluded that a federal regulation prohibiting advertisements for gambling in private casinos but allowing advertisements for gambling on reservations violated the First Amendment. ... Greater New Orleans is inapposite, however, because the regulatory distinction between the two types of casinos counteracted the government's purported interest in minimizing gambling. As the Greater New Orleans Court explained, allowing one type of advertising while prohibiting the other would merely channel gamblers to the reservations, thus rendering the regulation "squarely at odds with the governmental interests asserted in this case." ... The Freeway Facing Sign Ban is not a means by which the evil sought to be prohibited is simply channeled elsewhere, at odds with the asserted governmental interests. Rather, the City submitted a convincing rationale -- which is entirely consistent with its asserted governmental interest -- for exempting some freeway facing signs from its Ban.
Under the prior restraint doctrine, "a law cannot condition the free exercise of First Amendment rights on the unbridled discretion of government officials." ...The district court concluded that the Supergraphic and Off-Site Sign Bans were unconstitutional prior restraints on speech because their exceptions impermissibly vest the City Council with unbridled discretion to select among speakers on the basis of content. This legal conclusion was erroneous, however, because the prior restraint doctrine does not apply to the legislative function at issue here. The exceptions to the Supergraphic and Off-Site Sign Bans are rooted in the City Council's legislative discretion, not its discretion to make executive decisions as part of the LAMC's regulatory scheme. This distinction makes all the difference.
The First Amendment requires standards to cabin the legislative body's authority to execute aspects of the regulatory scheme in such circumstances because that authority "is distinct from the general discretion a legislative body has to enact (or not enact) laws." ...
This is not that rare circumstance in which the legislative body created a licensing power and reserved it for itself. The City Council's authority to enact special plans, create SUDS, or enter into development agreements derives from its regular and well-recognized legislative power to regulate land use. It does not depend upon or derive from the Supergraphic and Off-Site Sign Bans. The City Council would have the power to employ any of those land use tools even if none was ever mentioned in the Bans; the Bans do no more than affirm the existence of these legislative powers. The First Amendment is not implicated by the City Council's exercise of legislative judgment in these circumstances.
Our recent decision in Long Beach Area Peace Network is illustrative. There, the city enacted a regulatory scheme by which permits would be issued for certain gatherings in public places. See Long Beach Area Peace Network, 574 F.3d at 1025-26. The city council retained the ability to waive permit fees, but the ordinance did not provide standards to cabin the council's exercise of that authority. ...The ordinance was subject to attack under the prior restraint doctrine because the city council's authority was "unlike its usual legislative authority." .... Instead, that authority derived exclusively from the permitting scheme:Absent a preexisting permitting scheme, a city council could not in advance impose service charges or other fees on a group seeking to hold a demonstration in a public forum.
Id. Here, by contrast, the City Council does have the authority to employ specific plans, SUDs, and development agreements absent the Supergraphic and Off-Site Sign Bans. Because the prior restraint doctrine does not require the City to restrict "the general discretion a legislative body has to enact (or not enact) laws," the district court erred in concluding that the Supergraphic and Off-Site Sign Bans are unconstitutional prior restraints on speech....
The district court erred in holding that the billboards at the Staples Center and in the Fifteenth Street SUD render the Freeway Facing Sign Ban an unconstitutionally underinclusive restriction on commercial speech under Central Hudson. The district court also erred in concluding that the Supergraphic and Off-Site Sign Bans are unconstitutional prior restraints on speech. We therefore REVERSE the grant of summary judgment in favor of WWR and VACATE the injunctions in favor of WWR and Sky Tag. We also REVERSE the district court's order finding the City in civil contempt of the injunction as to WWR's billboards. We AFFIRM the district court's order amending the scheduling order and admonishing the parties that future amendments would not be entertained.
The case is World Wide Rush, LLC v. City of Los Angeles, Nos. 08-56454, 08-56523, 09-55494, No. 09-55792, No. 09-55791, 2010 U.S. App. LEXIS 10797.
Friday, May 28, 2010
Gallup, New Mexico, mayor Harry Mendoza is suing Bob Zollinger, publisher of the Gallup Independent, over articles published in the paper last summer which link Mr. Mendoza to a gang rape from the late 1940s. Mr. Mendoza says he was never charged in the rape. What's more unfortunate is that Mr. Mendoza and Mr. Zollinger engaged in a fight in a bank parking lot in January. Mr. Mendoza does face charges in that case.
Read more here in an Associated Press story.
Thursday, May 27, 2010
Wednesday, May 26, 2010
The FCC has released the findings of a new survey that indicates that nearly twenty percent of Americans have had "bill shock"; that is, they've discovered their monthly cell phone bills are much higher than expected. In addition, the survey reveals that many Americans either are subject to early termination fees from their mobile phone companies or don't know if they would be subject to such fees.
The survey provides more information about user opinion and satisfaction concerning cell phone and broadband service, including by demographic breakdown.
The Internet has become a communication medium of intense group interaction, and individuals with marginalised identities have used anonymity as a tool with which to participate in online interaction. In order to capture the full spectrum of the role that anonymity plays in cyberspace, I explore in this article the US constitutional right to anonymous association. I draw on the concepts of anonymity defined in the social science literature - identity protection, visual anonymity, and action anonymity - and analyse US case law regarding the right to anonymous association in both offline and online worlds. The examination suggests that (1) the right to anonymous association has been especially meaningful for those who are marginalised in society; (2) future courts - in light of established legal rules governing the right to anonymous association - must give careful consideration to the question as to who is seeking anonymity; (3) different concepts of anonymity have greater independence in cyberspace and, therefore, need to be distinguished by scholars and courts. Overall, the right to anonymous association in cyberspace can be understood as the positive right of individuals to control information about themselves in order to find and associate with others. The examined case law shows that strong support for such a right is embedded in the US legal tradition.
Download the article from SSRN at the link.
Tuesday, May 25, 2010
On May 20, 2010, the Consumer & Governmental Affairs Bureau of the Federal Communications Commission (Commission) released a Public Notice (Notice) seeking to gather information on the feasibility of instituting usage alerts and cut-off mechanisms similar to those required under the European Union (EU) regulations that would provide wireless voice, text, and data consumers in the United States a way to monitor, on a real-time basis, their usage of a wireless communications service, as well as the various charges they may incur in connection with such usage (e.g., roaming services, voice service “minute plans,” text message plans). Specifically, the Commission sought comment on whether technological or other differences exist that would prevent wireless providers in this country from employing similar usage controls as those now required by the EU.
The Notice was published in the Federal Register on May 20, 2010.
 75 Fed. Reg. 28249 (May 20, 2010).
Monday, May 24, 2010
Despite jury instructions designed to prevent jurors from commenting upon the trial, their deliberations or the process by which they reached a verdict, some have ignored these instructions and face the risk of prosecution under s8 of the Contempt of Court Act 1981. In the past few years following an explosion in the use of blogging, microblogging via mobile technologies (i.e. Twitter) and social networking sites such as Facebook and MySpace, there have been reports of juror impropriety and this has led to concerns being raised by many, including the Lord Chief Justice.
This paper sets out to review a snap-shot study of Twitter, a widely-used microblogging tool that can be updated easily from a mobile phone and read widely by anyone with an Internet connection, even without being an account holder. The use of twitter, in particular by celebrities, has also become synonymous with updating the world at large on every single thought and movement of the account holder to the point of information overload. This study has limited validity, but aims to review whether jurors do indeed tweet about anything relating to their experience of jury service.
Download the paper from SSRN at the link.
In this paper I examine the impact that the struggle against terror has had on free speech protections in three European states. Specifically, I argue that prosecutors have overbroadly interpreted and expanded the definition of laws designed to target individuals who provide material support to terrorists. As a result, some prosecutions undertaken by European states threaten to undermine the core democratic value of free speech. By analyzing specific cases, I explore how some liberal democratic states have chosen to navigate the tension between security and liberty that Hannah Arendt referred to as the “crisis of authority.” Although I discuss each state’s relevant legislation, my primary focus is to draw distinctions and comparisons between the three countries based on recent cases that attempt to criminalize speech. This approach will allow me to assess the pulse of free speech in several democratic states that face significant terrorism threats.
Download the paper from SSRN at the link.
Sunday, May 23, 2010
The New York Times has a feature story on the battle over the late novelist Stieg Larsson's ("The Girl With the Dragon Tattoo") estate. The writer died intestate, and did not marry his companion, Eva Gabrielsson. Swedish law does not recognize common law marriage. So who should get his property? And who should control the royalties from his very successful mysteries, one of which hits the bookstores this week?
News of the World Alleges Sarah Ferguson Offered To Sell Introduction To Duke of York To Undercover Reporter
From the BBC: News of the World alleges it has filmed Sarah Ferguson, the former wife of the Duke of York, offering to introduce a reporter posing as a businessman to her ex-husband, for payments totaling up to five hundred thousand pounds. Buckingham Palace has not commented. NotW has posted a video clip.
Friday, May 21, 2010
Thursday, May 20, 2010
Over the past two decades, the Internet has undergone an extensive re-ordering of its topology that has resulted in increased variation in the price and quality of its services. Innovations such as private peering, multihoming, secondary peering, server farms, and content delivery networks have caused the Internet’s traditionally hierarchical architecture to be replaced by one that is more heterogeneous. Relatedly, network providers have begun to employ an increasingly varied array of business arrangements and pricing. This variation has been interpreted by some as network providers attempting to promote their self interest at the expense of the public. In fact, these changes reflect network providers’ attempts to reduce cost, manage congestion, and maintain quality of service. Current policy proposals to constrain this variation risk harming these beneficial developments.
Download the Article from SSRN at the link.
We are at a crossroads with respect to the under-developed equitable defense of copyright misuse. The defense may go the way of its sibling, antitrust-based patent misuse, which seems to be in a state of inevitable decline. Or - if judges accept the proposal of this Article – courts could reinvigorate the copyright misuse defense to better protect First Amendment speech that is guaranteed by statute, but that is often chilled by copyright holders misusing their copyrights to control other’s speech.
The Copyright Act serves First Amendment interests by encouraging authors to create works. But copyright law can also discourage the creation of new works by preventing subsequent creators from using copyrighted work to make their own, new speech. Courts have long recognized this inherent tension, and have also recognized that the conflict should sometimes be decided in favor of allowing a subsequent speaker the right to make unauthorized use of others’ copyrighted works. Accordingly, courts created, and Congress codified, the fair use defense to copyright infringement, which allows unauthorized use of copyrighted works under certain circumstances that encourage speech and creation of transformative works. The problem with fair use, however, is that the informational uncertainties and transaction costs of litigating the defense make the fair use right unavailable to many as a practical matter. Subsequent creators are left open to intimidation by copyright holders threatening infringement suits. By decoupling the copyright misuse defense from its basis in antitrust principles and basing it in First Amendment speech principles, the legal protections for fair use shift from theoretical rights to practical rights for many. Copyright misuse has two deterrent features that will allow fair use as a practical right. First, a copyright holder’s misuse of its copyrights against anyone can be used to prove the defense of misuse. Second, once misuse is found, the copyright owner loses its ability to enforce its copyright against everyone, at least until the misuse is cured. Thus, by defining as copyright misuse the unjustified chilling of speech that some copyright holders perpetrate, the misuse defense will encourage important speech rights that are currently under-protected.
Download the article from SSRN at the link.