Lyrics Cannot be Used in Sentencing Hearing Without Having a Specific Tie to the Crime

After being convicted of federal gun crimes, a musician’s violent song lyrics could not be used against him because they were not sufficiently tied to his crime or other sentencing factors

United States v. Alvarez-Nunez, 2016 BL 219988, 1st Cir., No. 15-2127, 7/8/16.

   The First Circuit held that that the First Amendment prevented a court from using a musician’s lyrics during his sentencing hearing for gun crimes. While song lyrics can be contemplated during sentencing as extrinsic evidence, they must be directly tied to the motive or state of mind of the offender. The court elaborated, saying conduct that “has no bearing on either the crime committed or on any of the relevant sentencing factors, consideration of that conduct infringes a defendant’s First Amendment rights.” While examining the song lyrics in relation to the case, the court noted that there was little evidence that connected the song lyrics to the crime.

Husband and Wife’s Extra-Marital Extortion Conviction Affirmed

A husband and wife’s conviction for extorting extra-marital lovers for money is affirmed because the circuit court deemed the state's theft-by-coercion law as not being overly broad or vague 

Roberts v. Anderson, 2016 BL 208411, 5th Cir., No. 13-50587, 6/29/16.

   The Fifth Circuit found that a theft-by-coercion law was not overly broad or vague on its face or in its application in a husband and wife extortion case. The husband, after discovering his wife’s extra-marital affairs, began to extort his wife’s lovers. Things became even more interesting when the wife began joining her husband in the extortion.  Four men who were lovers of the wife were extorted out of money, being coerced to pay into a personal charity ran by the husband that was directed to him personally.

   The court reaffirmed the state district court’s verdict, finding that the statute for theft was appropriately applied. The circuit court found that the lower court’s analysis was solid enough to trigger the Antiterrorism and Effective Death Penalty Act’s (AEDPA) deference towards state court decisions. Under the act, federal courts can only second-guess state decisions on habeas review if the decision went against or involved an unreasonable application of federal statute. By failing to meet this burden, the husband and wife duo were unable to have the state statute reviewed because the court found it to be not overly broad or vague.

http://www.bloomberglaw.com/public/document/Roberts_v_Anderson_No_13_50587_2016_BL_208411_5th_Cir_June_29_201.

Prisoner’s Grievances are Protected by First Amendment

A prisoner’s letter to the warden seeking redress was protected under the First Amendment, making summary judgment against the prisoner’s civil suit against a guard premature without proper discovery procedures 

 Ogurek v. Gabor, 2016 BL 205005, 7th Cir., No. 15-1151, 6/27/16.

   The Seventh Circuit ruled that a prisoner’s petition for redress prevents summary judgment in prisoners’ grievance cases when evidence central to the case is being withheld by a government official. The prisoner plaintiff was beaten up in a prison fight and later asked the defendant to investigate the fight from surveillance footage. The defendant responded by claiming to have watched the fight, but found that the plaintiff started it. The defendant later filed a disciplinary action, which the plaintiff appealed. During the appeal, the plaintiff requested the surveillance video, but before the discovery was made, the defendant motioned for summary judgment, which the judge granted.
 

   The court first addressed the First Amendment issue, finding that the letter to the warden was a petition for a redress of grievances, thereby making the disciplinary action by the investigator for the complaint a violation of the plaintiff’s constitutional rights. Additionally, the court found that the trial judge erred in not allowing the discovery of the video surveillance that would have either supported the plaintiff’s claim or the defendant’s disciplinary action.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D06-27/C:15-1151:J:Posner:aut:T:fnOp:N:1780753:S:0

Challenge Against State Law Requiring Secrecy After Grand Jury Trial Revived

A woman’s challenge against a Missouri state law prohibiting grand jurors from speaking about their experience had her lawsuit revived by the Eight Circuit 

Doe v. McCulloch, 2016 BL 195633, 8th Cir., No. 15-2667, 6/20/16.

   A female grand juror wanted to speak out about her grand jury trial experience surrounding the police officer involved in the death that sparked riots in Ferguson, Missouri. She started a First Amendment action against the law so that she could come out and dispel certain assumptions about the grand jury verdict, but has not been able to because of the law.

   Initially, a lower court dismissed the case because of its application of a case affecting secrecy and regulatory schemes. On the appeal, the circuit court found that a different case should have been used. This case, R.R. Comm’n of Texas v. Pullman Co., requires that a federal action be stayed to wait and see if the related state matter will moot the federal issue. The court issued in its opinion, “When the state-law issues have been resolved, if the First Amendment claim has not become moot, [plaintiff] may return to federal district court and pursue it.”

https://www.bloomberglaw.com/public/desktop/document/Doe_v_McCulloch_No_152667_2016_BL_195633_8th_Cir_June_20_2016_Cou?1467239982

Cyberbully Law in North Carolina Violates Free Speech

Law aimed at preventing cyberbullying was ruled unconstitutional by North Carolina Supreme Court because it restricted “content based” speech.

State v. Bishop, N.C., No. 223PA15, 6/10/16.

    North Carolina Supreme Court overturned its appellate court, ruling that a law making it a crime to post on the Internet “private, personal, or sexual information pertaining to a minor” with the intent to “intimidate or torment” was unconstitutional. While the appellate court found that the law regulated non-expressive conduct, the supreme court found that it restricted content-based speech. The court further held that the law was not narrowly tailored to serve the state’s purpose in preventing cyberbullying, thereby violating the First Amendment.

http://src.bna.com/fNW

Pornography Regulations Regarding Minors Subject to Strict Scrutiny

Recordkeeping regulations on adult film producers aimed at preventing child pornography are subject to the First Amendment, requiring their reviewing standard to be strict scrutiny

Free Speech Coal., Inc. v. Att'y Gen., 2016 BL 182465, 3d Cir., No. 13-3681, 6/8/16.

   The Third Circuit found that regulations aimed at preventing child pornography levied on adult film producers require strict scrutiny to analyze their constitutionality. On remand, the district court must determine whether the regulations are narrowly tailored to further a compelling state interest.

    Originally, these regulations were upheld by the circuit court using intermediate scrutiny as the standard they applied. The reviewing standard changed, however, after the Supreme Court’s decision in Reed and City of Los Angeles v. Patel, which required that strict scrutiny be used on similar regulations because they were “content based” and not content-neutral. 

http://www.bloomberglaw.com/public/document/Free_Speech_Coalition_Inc_v_Atty_Gen_No_133681_2016_BL_182465_3d_.

Obstruction of Justice Statutes Ruled Vague/Overbroad

Obstruction of justice ordinance overbroad, because it criminalizes speech protected by the First Amendment.

 

Scott v. First Judicial Dist. of Nev. , 2015 BL 435411, Nev., No. 67331, 12/31/15

    A car's passenger was arrested under an obstruction of justice ordinance when he repeatedly interrupted the police officer and advised the driver not to perform a field sobriety test. The Supreme Court of Nevada overturned the arrest, and deemed the statute to be overbroad and vague.

    The Carson City code provision made it unlawful "to hinder, obstruct, resist, delay, molest or threaten to hinder, obstruct, resist, delay or molest" police officers or fire officials from performing their official duties. The court ruled that the ordinance is unconstitutionally broad because it criminalizes some speech that is protected by the First Amendment. The court also determined that the ordinance was vague because it did not give police guidelines, which amounted to police having unrestricted discretion to arrest citizens for words or conduct that annoys or offends.

    It is well established that even speech that could otherwise be prohibited will be permitted if the applicable statute is overbroad with respect to other speech.

http://www.bloomberglaw.com/public/desktop/document/Scott_v_First_Judicial_Dist_Court_of_Nev_No_67331_2015_BL_435411_?1452881894