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

Speech-or-Debate Clause Does Not Block E-Mail Search

The speech-or-debate clause of the U.S. Constitution does not prohibit federal prosecutors from executing a search warrant for e-mails in Rep. Chaka Fattah's (D-Pa.)  Gmail account.

 

In re Fattah, 3d Cir., 2015 BL 284077, No. 14-3752, 9/2/15

    Fattah has been indicted for his alleged involvement in "several schemes" related to the misappropriation of hundreds of thousands of dollars. Fattah has been fighting an e-mail search warrant for over a year.

    A three-judge panel for the Third Circuit said that Fattah  cannot prevent Google Inc. from turning over his e-mails in response to the warrant. The opinion indicated that the court lacked jurisdiction to consider whether the speech-or-debate clause applies to search warrants.

    Judge Thomas Ambro partially dissented with the majority. He disagreed on the issue of jurisdiction but agreed that the Congressman's e-mails were not protected from a search warrant.

    The appeals court said that the speech-or-debate clause can be used to prevent the introduction of evidence at trial, but not to hinder an investigation by blocking a search warrant.

    "It cannot be... that the privilege prohibits disclosure of evidentiary records to the Government during the course of an investigation," the court said. "If it were any other way, investigations into corrupt Members [of Congress] could be easily avoided by mere assertion of this privilege."

    The court and Fattah did agree that the government needs to have better screening processes for reviewing these types of e-mails. The case was remanded to federal district court to sort out search process details.

http://www2.bloomberglaw.com/public/desktop/document/In_re_Fattah_No_143752_2015_BL_284077_3d_Cir_Sept_02_2015_Court_O