Articles Posted in Constitutional Law

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On April 10, 2018, Mark Zuckerberg, founder and chief executive of Facebook, took a chair beneath an array of Senators to answer for the uneasiness his company’s behavior had been giving the public.  The testimony comprised a broad variety of concerns – from user privacy to election meddling, to misinformation and an alleged bias in combatting it. The latter concern has fascinating legal implications we will discuss today.

More pointedly speaking, allegations that the large social media companies’ community guidelines have been enforced selectively have sparked a public controversy.  The accounts of some particularly controversial speakers, for better or worse, have been shut down, and others report that the volume of exposure their content gets has suddenly dwindled.  Pundits, for the most part on the right wing, have strongly condemned the companies, and ensuing arguments tend to hit all the philosophical tenets of the classical debate over free speech.

The First Amendment does not ensure anyone’s place on a private platform; it only restricts the government from discriminating with regard to speech, including, but not limited to, hate speech.  For the most part, it is left to market pressures to correct any perceived bias or wrongdoing on the part of the social media companies.  There are other areas of the law, however, that social media companies have some potential to run afoul of.  Critics and commentators have brought up both antitrust law and publishing law issues.  Although, there is debate over the likelihood that companies like Facebook infract upon either, yet the potential does exist.

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In a current dispute between Google and a Canadian company over de-indexing a competitor, Google is doing everything in its power to avoid the court order. Not necessarily because it believes in the innocence of Datalink, but because to de-index would be removing an important immunity under current U.S. laws. One may be wondering, what was the immunity that prompted Google’s move? Why could it just pick up and go somewhere else? Should other businesses be concerned for this possible loss of immunity, and why might a business support Google here?

Case History

Equustek Solutions, Inc., a Canadian company, engaged in litigation with Datalink due to illicit activities on Datalink’s part (e.g., misappropriation of trade secrets) and using those trade secrets to confuse consumers in the market. Due to the similarities resulting from the alleged misappropriation, Datalink led consumers to believe that they were purchasing Equustek’s products. Equustek then sued in Canadian courts, resulting in various court orders against Datalink. However, Datalink managed to evade enforcement by fleeing the country and setting up shop somewhere else.

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The Supreme Court recently reviewed Matal, Interim Director, United States Patent and Trademark Office v. Tam (Matal v. Tam), which deals with trademark laws and what can be trademarked.  In fact, before the case reached the Supreme Court, we have previously discussed how much is unsettled in this area of trademark law. With this new decision, much of the law should be clearer with regards to what can be officially trademarked.

What are the case facts?

A rock group chose the band name “The Slants” because they wanted to “dilute the term’s denigrating force as a derogatory term for Asians.” When the band tried to trademark this name with the United States Patent and Trademark Office the application for registration was denied. The government agency denied the application because it was against 15 U.S.C. § 1052(a), also known as the Lanham Act, which prohibits the registration of any trademark that may disparage or bring into contempt any persons living or dead. The lead singer of the rock group, Simon Tam, challenged this denial initially through the administrative appeal process, which did not bring him any result. Then, Simon Tang brought his case to federal court. The federal court decided that the disparagement clause in the Lanham Act was unconstitutional because it violated the First Amendment’s Free Speech Clause. This decision was then appealed to the United States Supreme Court.

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The United States Supreme Court has accepted a new case that implicates cell-phone location privacy. The case of Carpenter v. United States was decided by the Sixth Circuit and now the Supreme Court will issue a decision in the future as to whether the lower court’s decision was correct. The main issue in this case is that the court will be deciding whether or not the warrantless search and seizure of historical cell phone records revealing the location and movements of a cell phone user over the course of a 127-day period is permitted by the Fourth Amendment.  In general, the Fourth Amendment protects against unreasonable searches and seizures. It also implicates the laws regarding search warrants, wiretaps, other forms of surveillance and is central to privacy laws.

What are the case facts?

In 2011, four men were arrested because they were suspected of committing a string of armed robberies at T-Mobile and Radio Shack in the Detroit area. One of the four men confessed to the crimes and told the police that a shifting group of 15 other men served as getaway drivers and lookouts. The one man who confessed gave his phone number along with the phone numbers of some of the other participants to the FBI. The FBI then reviewed the call records of the man who confessed and were able to identify the phone numbers of others that he had called around the time of the robberies.

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Following from libel proof individuals to the realm of Twitter, and the “Wild-West” approach towards online statements, comes an interesting idea.  It is given that most people will communicate anonymously on the web.  So, if a person is a victim of libel, then how can he/she recover? The online service provider technically didn’t publish it, but only acted as the forum. The person who published the statement cannot be easily found because the statement was posted under a pseudonym.  So, what if the online service provider could be forced to give up identifying information (e.g., name, address, telephone, email, IP address) of the commenting individual? How much is that anonymity worth? Is there a way to actually engage in defamation and get away with it?

How does anonymity make things harder?

Naturally, an unknown person is difficult to sue in court.  The amount of damages he or she could pay is difficult to ascertain. While there are rules allowing a lawsuit without knowing the individual’s identity­­ (which is common in some cases), however, it adds the difficulty in discovering the identity of the “Doe Defendants.”

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On the Internet, individuals can go out and make attempts to rib each other, or to mock certain celebrities or infamous individuals. This opens the realm of libel and slander laws to expand towards online activities. Yet, depending on the person’s history, defamation may be borderline impossible.  If defamation is harm to one’s reputation, then theoretically it should be impossible to harm an irredeemable reputation.  This idea is a concept known as being libel proof — i.e., a person who cannot be defamed any longer.  So, can a completely libel-proof person exist? How could someone argue the individual is libel proof? How might this affect online communications?

What is libel proof?

Libel proof means, quite simply, that a person cannot be defamed any further.  Generally, to even satisfy libel, it would have to be an unprivileged false written statement that was published towards third parties (compared to slander, which is an unprivileged false oral statement that was published towards third parties).  Even then, defamatory statements are judged differently to protect free speech interests.

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This month, we’re looking at various constitutional issues and tangential actions. Of these, there’s a recent hot-button issue regarding the purpose of “freedom of speech” online. From fake news to political speech on websites, the notion of “what is allowed” and “what should be allowed” is still raised by people.  So, what can a website do to maintain the balance between free speech rights and acceptable community standards? Is there any responsibility to allow negative views? What is the risk, if any, towards censorship?

Freedom of speech online

In the wake of 2016, there’s a new question of online service providers that if they allow people to express themselves then they should either act as a gate keeper or grant carte blanche to all users.  Most notably, there’s been the Facebook “fake news” complaints, as well as the actions of a Reddit executive towards supporters of Donald Trump. In the case of Facebook, there were both complaints that it was discriminatory not showing stories from every end of the political spectrum, and negligent that it was not taking action to curtail “fake news” and their influences.  For Reddit, an executive had made edits to statements by Trump supporters to change comments critical of him to individuals that were managing the Reddit group.

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In general, Section 230 of the Communications Decency Act is not only one for defamation, but entails a few exceptions where liability can be imposed on an interactive computer service (e.g., Facebook, Twitter, Tumblr).  So, there are situations where an online business may be held responsible for another individual’s actions.  How can we know whether we will be held liable for a third party’s actions?  How can we avoid potential liabilities?

What can an interactive computer service be held liable for?

From a practical perspective, Section 230 is not an absolute shield for interactive computer services.  There are certain cases where an exception has been applied by the courts.  First, there is an exception for certain types of information.  Specifically, there is an exception for intellectual property.  For example, Section 230(e) determines the effect on other laws, including, an explicit omission of coverage for intellectual property protections.  In essence, liability for defamation may not carry over, but liability for any copyright infringement may carry over, as well as any issue of criminal law, such as obscenities.  Similarly, this can be demonstrated in Gucci America Inc. v. Hall & Associates, where the court determined, from the plain meaning of the statute, that it would not bar plaintiff’s trademark infringement claims against defendants.

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In a situation where an online forum allows creation of profiles with commenting capabilities, a user may take the initiative to defame an individual personally or professionally.  The user may perform illegal actions using the online forum’s website, and in attempting to retrieve damages he/she has suffered, the defamed individual sues the online forum for providing a platform for defamation.  However, Congress has provided an exception towards interactive computer services through Section 230 of the Communications Decency Act (CDA).  What does Section 230 of the CDA do?  What can you do, as an individual, to recover from defamatory material?

What is Section 230 of the CDA?

It’s a sub-part of a federal statute that essentially dictates that an online forum (e.g., Facebook, Twitter, Tumblr) is not liable as a publisher or speaker of online defamatory comments made by its users.  For example, if a defamatory comment was posted on Facebook, then Facebook would not be liable for the defamation.  Essentially, this would protect a website from anything that its users would publish.  This is not necessarily just towards defamatory content, although, it could be expanded to “any information” provided by an entity or person using the interactive computer service’s platform. There are, however, exceptions to this broad liability, as we’ll discuss in future blogs.  Also, the exact nature of a “publisher” is still unclear.  in general, there is a difference between a publisher, which initially produces the comment, and a distributor, which is not covered, that repeats the comment.

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Trademarks are a vital part of how your business is branded and how you appeal to clients and consumers.  What about those trademarks that push the boundaries on what is socially acceptable?  Generally, the government may not protect those marks that are beyond what is socially acceptable.  What is socially acceptable now?  Can the same standards apply and restrict what you can trademark?  To what extent can you push the boundaries in your branding?

How did the court rule in In Re Tam?

In recent times, the United States Patent and Trademark Office (USPTO) has ceded the restrictions on demeaning and offensive marks.  This is in response to the recent “Slants” case, where Simon Tam, a musician, filed a trademark application for his band’s name “The Slants.”  His trademark application was then denied under Section 2(a) of the Lanham Act.  This section prohibits the use of immoral, deceptive, or scandalous marks that may disparage living or dead people.  This section is infamous for the reason why the Washington Redskins trademark was cancelled.  However, Mr. Tam contested the refusal of his trademark, claiming that he wanted to take back the word “Slants” for his band, resting his argument on the First Amendment.  In doing so, through a long legal battle, the Federal Circuit eventually found for Tam, in an en banc hearing, stating that Section 2(a) violated his First Amendment right.  Furthermore, while the ruling had only applied to the disparaging part of the section, the USPTO ceded that the “scandalous and immoral” aspects of the legislation were likely to be unenforceable for similar reasons.