Late last week, the US Court of Appeals for the Fourth Circuit issued a decision in a case called Washington Post v. David J. McManus, upholding the ruling of the US District Court finding that the State of Maryland’s attempts to impose political advertising reporting obligations on online platforms to be an unconstitutional abridgment of these companies’ First Amendment rights.  The suit was brought by the Washington Post and several other companies owning newspapers with an online presence in the State.  Their arguments were supported by numerous other media organizations, including the NAB and NCTA.  The Maryland rules required that online advertising platforms post on their websites information about political ads within 48 hours of the purchase of those ads.  That information had to be maintained on the website for a year and kept for inspection by the Maryland Board of Elections for a year after the election was over.  The appeals court concluded that the obligation to reveal this information was forcing these platforms to speak, which the court found to be just as much against the First Amendment as telling them to not speak (e.g., preventing them from publishing).  As the court could find no compelling state interest in this obligation that could not be better met by less restrictive means, the law was declared unconstitutional.

The Maryland law required the following disclosures on the website of a platform that accepted political advertising:

  • the ad purchaser’s name and contact information;
  • the identity of the treasurer of the political committee or the individuals exercising control over the ad purchaser; and
  • the total amount paid for the ad.

In addition, the platform had to maintain the following information for a year after the election and make it available to the State authorities upon request:

  • the candidate or ballot issue to which the qualifying paid digital communication relates and whether the qualifying paid digital communication supports or opposes that candidate or ballot issue;
  • the dates and times that the qualifying paid digital communication was first disseminated and last disseminated;
  • a digital copy of the content of the qualifying paid digital communication;
  • an approximate description of the geographic locations where the qualifying paid digital communication was disseminated;
  • an approximate description of the audience that received or was targeted to receive the qualifying paid digital communication; and
  • the total number of impressions generated by the qualifying paid digital communication

The appeals court found that this “compelled speech” forced these platforms to “speak” when they otherwise might not want to – the “speaking” being the mandatory publication of information on their website.  The court also pointed to the potential of these rules to chill political speech, by compelling companies to reveal information about those who might otherwise not want to disclose that they are taking a position on a controversial issue or election.  The court found that anonymity in political speech was part of a long tradition in the US, and it could subject those buying the political ads to harassment.  Also, the added burden of collecting this information could cause platforms to reject political ads in favor of advertising where no such burden was imposed. 
Continue Reading Court of Appeals Finds Maryland Law Imposing Political Disclosure Obligations on Online Platforms to be Unconstitutional – Finding Different Treatment of Broadcasters is Justified

A recent Court of Appeals decision that could have an impact on the Washington Redskins trademark dispute about their team name, is covered in the following article by my law partner, Mitchell Stabbe, who specializes in trademark law.  He writes about a case where the Court determined that a trademark rule that has led to the denial or rejection of trademarks deemed to be disparaging was an unconstitutional infringement on Free Speech.  This is the first of what we hope will be many articles on this blog from Mitch and his team of trademark specialists: 

In a decision that could have a significant impact on the well-publicized dispute over the REDSKINS trademark, the US Court of Appeals for the Federal Circuit recently ruled that the prohibition against federal registration of disparaging trademarks violates the First Amendment and is unconstitutional.  The case involved an appeal from the denial by the Patent and Trademark Office (“PTO”) of an application by Simon Shaio Tam to register the mark THE SLANTS for an Asian-American band, which selected the name in order to make a statement about racial and cultural issues.  The PTO had found that, regardless of intent, the likely meaning of phrase THE SLANTS may be disparaging to a substantial composite of persons of Asian descent.

Each of the previous appeals affirmed the finding that the mark is disparaging, and held that the issue of constitutionality could not be addressed because of a binding precedent issued by the Federal Circuit in 1981.  That precedent could only be reversed if all of the Federal Circuit judges (as opposed to a panel of three judges, which decides most cases) ruled together.  The court agreed to consider the question whether the prohibition against disparaging marks is constitutional.  In a 9-3 ruling, the Federal Circuit reversed its own precedent and concluded that the statutory prohibition violates the First Amendment and is unconstitutional.  The court reasoned that, by denying registration to disparaging marks, the Government was targeting speech based on the content of the message conveyed by the mark, which is almost always a violation of the First Amendment requirement that the Government make no laws abridging freedom of speech.  Even though the lack of a federal registration does not limit the right to use a mark, the court ruled that denying registration would restrict freedom of speech by creating a disincentive to the adoption of disparaging trademarks because the markholders would be denied the “truly significant and financially valuable benefits” of registration.  (We will address those benefits in an upcoming post.)
Continue Reading Court of Appeals Rules that Prohibition Against Federal Registration of Disparaging Trademarks is Unconstitutional Restriction of Free Speech

Section 399b of the Communications Act bans advertising for for-profit companies, as well as political and issue advertising, on noncommercial radio and television stations.  While Congress over 20 years ago loosened some restrictions on fundraising by allowing paid ads by nonprofit groups on noncommercial stations, and permitting commercial entities to provide some minimal information about their businesses (including their logos) on sponsorship underwriting on public TV, the ban has otherwise prohibited commercial and political ads containing qualitative claims, price information or calls to action.  In a recent decision, the US Court of Appeals for the Ninth Circuit affirmed a decision of a California District Court upholding the constitutionality of that ban against a challenge by a noncommercial TV station operator who contended that the rule was an unconstitutional abridgement of the First Amendment.  The case is particularly interesting not just for the analysis by the Court in upholding the ban, but perhaps more so for the dissenting opinion of the Court’s Chief Judge, who found that the Court’s analysis ignored modern realities of the broadcast world in adopting a reduced standard of First Amendment protection for broadcasters leading the majority to be too timid in questioning the justification for the ban advanced by the government.  Thus, the case has importance not just for noncommercial broadcasters looking for new sources of revenue, but also for other broadcasters concerned about intrusive government regulation of their industry and the standard of First Amendment review that would be applied to such regulation.

We had written about an earlier decision in this case here and here.  The case arose when a public television operator in the San Francisco area, Minority Television Project, Inc., was fined by the FCC for having run promotional ads for commercial and political advertisers, and decided to fight that ban in court.  A panel of the Court of Appeals determined that the fine was appropriate for running commercials for for-profit companies, but unexpectedly threw out the Section 399b restriction on ads on political or controversial issues, finding that the public good of speech on these topics outweighed the government’s interest in fostering public broadcasting.
Continue Reading Court of Appeals Upholds Communications Act Ban on Commercial and Political Advertising on Public TV Stations – Significant Analysis of the Standards for First Amendment Review of all Broadcast Regulation

The Communications Act’s ban on noncommercial broadcast stations running political and issue advertising was struck down as unconstitutional by the US Court of Appeals for the Ninth Circuit.  While the Court upheld the prohibition on commercial advertising for products and services, the majority of the Court felt that the ban on political advertising could not be justified.  Bob Corn-Revere of Davis Wright Tremaine’s DC office, who is quite experienced in First Amendment litigation and is a frequent speaker and author on these issues, offers this summary of the constitutional issues raised by this case:

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A divided panel of the U.S. Court of Appeals for the Ninth Circuit held that Communications Act provisions that ban political and issue advertising on public broadcasting stations violate the First Amendment.  The court left intact another provision that prohibits commercial advertising on public stations.  The majority opinion in Minority Television Project, Inc. v. FCC, written by Judge Carlos Bea, reasoned that Congress lacked substantial evidence that the ban on political and issue advertising set forth in 47 U.S.C. § 399b was necessary to serve the government’s purpose of preserving the mission and quality of public broadcasting, and that the statute was not narrowly tailored.  At the same time, the court held that allowing commercial advertising would undermine the purpose of public broadcasting to provide educational and niche programming.

Synthesizing three decades of First Amendment case law, Judge Bea wrote that Congress must have substantial evidence to justify a content-based speech restriction “at the time of the statute’s enactment.”  The evidence must show “that the speech banned by a statute poses a greater threat to the government’s purported interest than the speech permitted by the statute.”  The decision principally relied on FCC v. League of Women Voters, a 1984 Supreme Court case that struck down a similar Communications Act prohibition on editorializing by public broadcast stations.  Judge Bea’s opinion also relied on a 1993 commercial speech case, Cincinnati v. Discovery Network, for “[a]dditional instruction on what narrow tailoring requires.  That case invalidated a municipal ordinance that imposed differential regulation on newsboxes, depending on whether they contained commercial or noncommercial matter.


Continue Reading Court of Appeals Strikes Down Communications Act Ban on Political and Issue Advertising on Noncommercial Broadcasting Stations – Analyzing the Issues

The FCC today upheld a $4000 fine issued to a broadcaster for broadcasting a telephone conversation without first getting the permission of the people on the other end of the line, denying reconsideration that the broadcaster had sought – arguing that the fine violated its First Amendment rights.  The telephone conversation that led to the fine was between a station employee and two airport officials, about a controversy concerning the local airport.  As summarized in our original article about that decision, the alleged violation arose from a call by the station employee to the airport officials to talk about the local controversy.  The employee allegedly identified himself as a station employee, and started to ask questions – without specifically stating that the call was being broadcast.  Even though the airport officials kept talking once they knew that the call was being recorded, the FCC still fined the station $4000, finding that the violation occurred once the officials said "hello" on the phone without having been told beforehand that the call was being broadcast.  The decision denying reconsideration is most notable for its long discussion of the First Amendment, which the station argued should override the FCC’s rules against broadcasting a telephone conversation without prior permission.

The broadcaster argued that, as in any case restricting speech rights, the FCC needed to show a compelling interest to restrict a broadcaster’s free speech rights.  Here, the broadcaster argued, no such compelling interest justifying the FCC’s blanket rule against broadcasting a conversation without getting prior approval had been shown.  The broadcaster made the point that this was not some case of a wake up call to a visiting celebrity, or a spoof call to a prominent person where the caller was not identified, but was instead a case of a reporter calling a news source for comment on a news controversy.  The subjects knew that they were talking to the station, and thus should have assumed that the substance of their statements might end up being broadcast.  The mere fact that their actual statements were being broadcast live should not, contended the broadcaster, be a sanctionable offense. 


Continue Reading Rule Against Broadcast of Telephone Conversation Without Prior Permission is Constitutional, Says FCC

The Supreme Court issued its landmark opinion in Citizens United v. FEC one year ago today.  That case allowed corporations and labor unions to make independent expenditures for or against political candidates.  An editorial in today’s Washington Post by the President of Citizens United and its lead counsel argues that the hysteria following that decision was unfounded because the amount spent by citizen groups in the last election paled in comparison to the amount spent by the Democratic and Republican parties and by the candidates themselves.  Rather, the authors argue, the primary political speech to come out of the Supreme Court’s decision has been that of independents, and politicians are upset by this because they cannot control the speech of independents.

 As a reminder, the Supreme Court case arose as a result of a film directed against then Presidential candidate, Hillary Clinton.  Citizens United was a nonprofit corporation that produced the film, and there was debate whether this was a "documentary" or an "electioneering communication," as well as whether distribution via video on demand constituted "public distribution" of the film.  The Supreme Court found that the film was indeed an "electioneering communication" and that VOD was likewise a public distribution of the film.  Thus, Citizens United ran smack up against the FEC prohibition on independent corporate political expenditures.


Continue Reading “Citizens United”: The Supreme Court Decision One Year Later

As we’ve discussed before, here, the FCC has been reviewing their power to regulate violent programming on broadcast stations.  Despite the apparent constitutional and practical issues involved in such restrictions (e.g. are Roadrunner cartoons covered?), published reports indicate that a majority of the FCC Commissioners will issue a report asking Congress to give the FCC authority