Second Circuit: Vans, Inc. v. MSCHF Product Studio, Inc.

Where an alleged trademark infringer incorporates with distortion the characteristics of the original product that indicate its origin and source, the enhanced First Amendment protections for parodies are properly not considered in the preliminary injunction analysis under the statute.

Given the strength of the original marks, the intention to evoke the original marks by using the distorted design established a likelihood of confusion, especially since the original brand occasionally sold special forms of the shoe. Although it might be difficult to actually wear the shoe, enjoining court's determination to the contrary worthy of deference. No clear error in determination that the alleged infringement was of lower quality, but the court erred in holding that legally this worked in the favor of the party claiming infringement.

No abuse of discretion in ordering escrow of gross revenues, as party seeking injunction sought an accounting, and a damages award would include costs and fees. No error in not requiring bond from party seeking injunction, as non-movant didn't request it.

Vans, Inc. v. MSCHF Product Studio, Inc.

DC Circuit: James Blassingame v. Donald Trump

 An incumbent campaigning to retain their present office is not carrying out the duties of the office.  A President's speech on matters of public concern is not invariably an official function. Motion to the contrary can be made at summary judgment after development of facts supporting the claim.

The President attempted to alter the declared election results by various means.  

The President has official immunity for all acts within the outer perimeter of official presidential responsibility, including discretionary acts within a concept of duty associated with the office. An action's unlawful nature or inappropriate purpose does not move it past this outer perimeter.    

Actions taken in a plainly and purely unofficial context could be included in a test identifying matters of public concern. Inquiry into public/private capacity is distinct from this. An incumbent seeks re-election in a private capacity. Inquiry into capacity is objective and context-specific; if the inquiry yields no clear answer, the conduct is immune.

Claim under the "Take Care" clause presumes official capacity rather than establishes it. 

Structural separation of powers claim for lack of immunity actually establishes the contrary, as it's Executive action.  E.g., Steel Seizure cases.

First Amendment/incitement is a distinct calculus -- would afford protection when least needed, and vice versa.

Deft. has a right to develop the record for purposes of immunity prior to merits stage, as the immunity is immunity from suit.

CONCURRENCE:

Motive inquiry is intrusive.  Objective reading of content could mislead. Speech clothed in the trappings of the office generally immune.

PARTIAL CONCURRENCE:

Scope of the interlocutory analysis appropriately limited to the denial of absolute immunity as claimed, rather than setting out a calculus for the determination of context-specific immunity.  

James Blassingame v. Donald Trump

First Circuit: Ciarametaro v. City of Gloucester

 

As city officials might reasonably have concluded that the value of the harbormaster's expert testimony was outweighed by the city's interests, the right to testify in the matter was not clearly established, and the officials are entitled to qualified immunity.

 Ciarametaro v. City of Gloucester

Tenth Circuit: Animal Legal Defense Fund, et al. v. Kelly, et al.

 

Since the Act prohibits making false statements in an attemp to gain consent to the control of property with the intent to damage the interests of the facility, its viewpoint discrimination requires strict scrutiny.

Not all attempts to damage the enterprise of an animal-processing facility are harms that would merit decreased First Amendment protections.

Under circuit precedent, the photographing of animals or taking notes about habitat is creating speech; the law's criminalization of this when done for the purpose of injuring the enterprise is similarly viewpoint discriminatory.  The state can't limit the scope of its prohiitions due to the favor or disfavor of the message.

The same holds for trespassing with the intent to harm the enterprise.  Although there is no right to trespass, false speech is an element of the offense through the requirement of effective consent.

DISSENT

Better remedy would be severence of deception from the intent requirement.

Regulating false statements of fact that cause harm is constitutional.

Right to choose who enters one's property is fundamental.

The law merely distinguishes harmful trespass from trespass without the intent to harm.

The actual speech here isn't implicated, but rather the intent behind the speech.

Private landowners generally have the right to restrict photography on their premises.

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110563866.pdf

Ninth Circuit: USA V. Steven Bachmeier

Finder of fact could rationally have decided that a request for a case to be assigned to another judge, and that contained a threat against that first judge was in fact addressed to the first judge even though the note was addressed to the courthouse.

Although the jury instruction didn't adequately convey the element of subjective intent to threaten, the error was harmless, since the deft's only argument against subjective intent was that the note had not been addressed to the judge, and the note, read plainly, was a true threat.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/13/20-30019.pdf

Eighth Circuit: Business Leaders In Christ v. The University of Iowa

 

Summary judgment based on qualified immunity for the defts was in error, since it was clearly established in both Supreme Court and Circuit precedent that university organizations were limited public forums not to be subjected to unreasonable or viewpoint-based discrimination.  The fact that the policy was unevenly enforced actually reinforces the suggestion of viewpoint discrimination.

As similar cases have been decided on Free Speech grounds, though, the relevant law on Free Exercise was not clearly established.

CONCURRENCE/DISSENT:

Unequal enforcement precludes a finding of facially neutral law of general applicability; the Free Exercise right was sufficiently clearly established.

Business Leaders In Christ  v.  The University of Iowa

Eighth Circuit: Cory Sessler v. City of Davenport, Iowa

 

Permit scheme for city street fair staged by development commission is a content-neutral means of regulating competing use of the public forum; the permit allows for the permitted speech and allows the restriction of disruptions to the permitted speech.

Declared intent to, in the future, speak in public areas is insufficient to establish irreparable harm for an injunction affecting a specific street fair.

Cory Sessler  v.  City of Davenport, Iowa

Eighth Circuit: United States v. Shawn Thomason

 

As the writings found in the defendant's car supported the theory of the crime and established a potential future danger to the community, consideration in sentencing was not a violation of the First Amendment.

As the deft requested the change late in the trial, the claim of prosecutorial misconduct due to the use of gender-specific pronouns was waived; alternatively, pronouns are not dispositive.  Misgendering is insufficient basis for a claim of judicial bias; no error in denial of motion to recuse.

Plea deal identifying one act as applicable for restitution did not preclude the seeking or award of restitution under an additional act.

Interstate stalking statute does not unconstitutionally co-opt state authorities.

United States  v.  Shawn Thomason

Second Circuit: People of the State of New York v. Griepp

Clear error to exclude evidence in preliminary injunction hearing as hearsay following finding that the situation lacked sufficient urgency to justify admitting hearsay; in a preliminary injunction hearing, the hearsay nature of the evidence always goes to the weight of the evidence.

Clear error to exclude a category of evidence in a preliminary injunction hearing after determining that two documents of the type were unreliable, and another after being unable to determine the reliability of that type of evidence (latter harmless error).  Everything in for appropriate weight. 

For purposes of the obstruction statutes, a minor delay is not per se a reasonable obstruction; the court must still determine if the delay was a reasonable one.

Placement of signs on a sidewalk in a manner that does not functionally exclude access can still be an attempt to intimidate or obstruct within the terms of the statute, even if no pedestrians appear.

When a protester's actions necessitate that an escort step in front of the protected person, the protester has caused the physical obstruction defined in the statute.

Regardless of the consensual nature of the conversation, speaking to someone inside a vehicle through an open door or placing hands on the car while speaking impeded the car from driving away, and could be considered obstruction.

When taken in the context of recent local violence, and given the subjective fear that the listeners felt, stating that death might come at any time would objectively be taken as a true threat not protected by the First Amendment; similar statements conjoined with an exhortation to repent, or referencing disasters distinct from recent local violence present a different question.

As the decision to have an abortion involves a formidable and poignant process, protesters' seeking to force their ideals on patients approaching a facility creates an inference of intent to harass, annoy or alarm.  An explicit or implicit request to be left alone dispels the legitimate intent of potential interlocutors.

Likely repetition of the violations of the statutes suffices to establish irreparable harm for the injunction.

In the interests of judicial economy, cross-appeal of non-movants' early motions not referenced in the memorandum denying the preliminary injunction are appropriately addressed in the appeal of the denial of the injunction under pendent jurisdiction.

Abortion facility speech limitations are content neutral, as they apply to every abortion facility in any context.

Statutes not void for vagueness, given general definitions in criminal code.

Municipal statute creating a cause of action for "any person" legitimizes a parens patriae action by the state in which the municipality is located; sufficient quasi-sovereign interest demonstrated here.

Concurrence:

Municipal statute is a state statute, since the municipality is a creation of the state; certifying the question to the state would be necessary to determine if the state could act parens patriae by its own statute.

Concur/Dissent:

General dissent as to not honoring the determinations of the finder of fact.

Since the cause of action doesn't list government bodies and the rest of the code generally does, and the statute designates a specific enforcement entity with power to seek an injunction, the state does not have parens patriae standing.

Courts are permitted to consider hearsay in a preliminary injunction hearing; they are not required to do so.

Statute's restriction on making access unreasonably difficult or dangerous explicitly excludes de minimis interference.  Concluding otherwise impermissibly burdens speech. 

Finder of fact held that a reasonable observer familiar with the speaker's preaching would not have interpreted the statements about impending death as true threats.

Irreparable harm finding requires ongoing plans and activities.

People of the State of New York v. Griepp

Seventh Circuit: Jason Gonzales v. Michael J. Madigan

Assuming, without extending the precedent, that political deceit can offend the Equal Protection Clause, the conduct alleged was sufficiently publicly known to allow the voters a free choice.

The District Court judge did not violate the First Amendment in holding that the plaintiff's campaign speech had sufficiently revealed the alleged deceit.

Jason Gonzales v. Michael J. Madigan

Eighth Circuit: B.W.C. v. Randall Williams

 

Recital of state's advocacy for vaccination on form required to be signed by those refusing to have their children vaccinated doesn't amount to compelled speech or place any incidental burden on speech.

The requirement to sign the form is a neutral requirement of general applicability that does not cause an increase in the perceived harm of vaccination.

No equal protection claim, as the requirement to sign the form is a general one.

As each individual aspect of the claim is without basis, the hybrid nature of the claim doesn't justify strict scrutiny.

B.W.C.  v.  Randall Williams

Second Circuit: New Hope Family Services, Inc. v. Poole

Defendant's Free Exercise claim of subtle or covert bias in the implementation of a facially neutral law suffices for additional discovery given the variations between the law and the regulation, the length of time before the regulation was amended, and indications of animus within the administrative process.

Adoption agency's speech is not government speech (e.g., advertisements, monuments, vanity plates), as it's not a traditional mode of communication with the public, and the public doesn't see the speech as government speech -- also, there's no indication that, outside the present context, the govt can control the speech.

Discovery warranted to find out whether compelling certain adoptions might cause the adoprtion agency to change its message in counseling and client contact.

Discovery warranted to determine if compliance with state mandates would harm Free Association by keeping people who would otherwise collaborate with the adoption agency might stay away.

On remand, in tailoring possible preliminary injunction, court must consider verified pleadings and affidavits as evidence of potential harms to constitutional interests.

New Hope Family Services, Inc. v. Poole

Fifth Circuit: David Wilson v. Houston Community College System

Dissent from Denial of En Banc: Legislative censure by Board was appropriate government speech; ruling to the contrary upholding Free Speech right of the member censured risks weaponizing gadflies.

David Wilson v. Houston Community College System

Sixth Circuit: Kashiya Nwanguma v. Donald Trump

Political candidate's spoken summary ejection of protesters was not an incitement to riot.

The test for whether a political speech is protected against a charge of incitement considers the content, form, and context of the actual words.  A single listener's subjective response is not dispositive; the court must consider the actual words used.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0202p-06.pdf

Third Circuit: USA v. Amy Gonzalez

Sufficient evidence for conspiracy conviction where the deft claims a genuine belief in the inciting statements, but finder of fact holds them to be objectively false.

Specific unanimity instruction not required, as the different mental states enumerated are alternate means of accomplishing the crime, not distinct potential elements of the crime.  Where a statute lists several acts, commission of any two of which would be an element of the crime, specific unanimity as to the underlying acts is not required, as the point of the list is to identify conduct that violates the actual prohibition.

For the statutory finding that death had resulted from the crime, the finder of fact must find it to be a forseeable proximate cause; there is no need to establish that the defts actually intended to cause death, and culpability can be established by the liability of a co-conspirator.

As the cyberstalking was defamatory and part of the commission of the crime, the law as applied in this case does not violate the First Amendment.

A recusal order that might reasonably be read to transfer venue but is then amended to clarify that it only recuses the present judge does not impugn the present venue.

Possibly prejudicial prior family court records properly admitted with limiting instructions.

Statements to a therapist as part of the therapy are admissible under the hearsay exeption for statements made for medical diagnosis or treatment, in addition to being evidence of the state of mind.

Hearsay emails to third parties properly admitted, as they spoke to how the acts referenced affected the writer's state of mind.

,Statements to therapist insufficiently testimonial to trigger the Confrontation Clause.

Question on cross as to whether the law enforcement officer had doubts about the defts' guilt opened the door for a vouching statement on redirect.  Vouching appropriately limited by instruction.

Court did not err in holding that testimony as to deft's honesty, peacefulness, and law abiding behaviour opened the door to testimony as to specific acts related to the present prosecution.

Factual findings by the judge during sentencing increased the advisory range, and not the statutory maximum -- these findings therefore could be made by a preponderance. and without reference to the jury's findings.

Deft's presence in courthouse should have put him on notice that it was foreseeable that a law enforcement officer might be injured in the coming imbroglio.

Injury to victim's children justified the increase of sentence for harming a vulnerable victim.

Life sentence for cyberstalking conspiracy resulting in death does not offend the Eighth Amendment.

http://www2.ca3.uscourts.gov/opinarch/161540p.pdf

Fifth Circuit: Marcus Mote v. Debra Walthall

Employees' rights of expressive association and freedom of speech in forming association for mutual aid and support is protected under the First Amendment whether or not state law will permit the association to become an exclusive bargaining agent for the employees.  Denial of qualified immunity upheld, as this was clearly established at the time.

http://www.ca5.uscourts.gov/opinions/pub/17/17-40754-CV1.pdf

First Circuit: Sindi v. El-Moslimany

As the list of defamatory statements were generally indicative of actual malice, there is no plain error in the finder of fact's determination that at least some of them were actionable defamation.

Damages, as limited by remittitur, were appropriate.

State interference with advantageous relations tort claim must refer to actual relations, and where there is a simultaneous claim against interference with contractual relations, the interference cannot be double-counted.

In the interests of justice, inadequately developed arguments against the issuance of a permanent injunction against speech can be raised sua sponte by the court.

Injunction against future speech was overbroad, did not recite other potential remedies, and did not sufficiently consider the context of future speech -- vacated.

Concur/Dissent: Argument against injunction was waived; the future interest is speculative; a simple vacatur based on insufficient proof in the record for necessity of the injunction would have sufficed.

http://media.ca1.uscourts.gov/pdf.opinions/16-2347P-01A.pdf

Eighth Circuit: Missourians for Fiscal, etc. v. James Klahr

State law prohibiting the formation of political committees after 30 days before an election is subject to strict scrutiny, as the law speaks to formation, a precondition for speech, and not disclosure.

The law is overbroad, as citizens might have cause to speak within the prohibited window, there are subsequent reporting requirements closer to the election, and past practice of the agency in merely imposing a $1,000 fine does not save the act.

http://media.ca8.uscourts.gov/opndir/18/06/171314P.pdf

Ninth Circuit: NLRB v. Ironworkers Local 433

First Amendment ruling as to speech against the government was an insufficient change in existing law to justify relief from judgment enforcing a contempt adjudication on secondary picketing under the Act, as alternate mechanisms of speech such as leaflets are still available, and the Act is content-neutral.

Concur: Not ripe, as only a vague desire to picket, and no indication of enforcement plans by management.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/08/88-07283.pdf

Fourth Circuit: Randall Brickey v. Robb Hall

S1983, Free Speech


Given paramilitary character of police force, there was no clearly established law to the contrary when police officer was fired for suggesting financial malfeasance at the department.

Randall Brickey v. Robb Hall